EXHIBIT 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of the 13th day of January 2002, by and between
Options Talent, Inc., of 0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000, a Delaware corporation ("Employer") which is a wholly owned subsidiary of
Options Talent Group of 0000 Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000, a Nevada corporation ("Holding Company"), and XXXX X.
XXXXXX ("Employee").
WHEREAS, Employee wishes to be employed by Employer with the duties and
responsibilities as hereinafter described, and Employer desires to assure itself
of the availability of Employee's services in such capacity.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Employer and Employee hereby agree as follows:
1. EMPLOYMENT. Employer hereby agrees to employ Employee, and Employee hereby
agrees to serve Employer, upon the terms and conditions hereinafter set
forth.
2. TERM. The employment of Employee by Employer pursuant to this Agreement
shall be for a three (3) year period commencing as of January 14, 2002
(hereinafter referred to as the "Service Period").
3. DUTIES. Employee shall, subject to overall direction of the Board of
Directors and President of Employer (the "Board"), serve as, and have all
power and authority inherent in the offices of Vice President-Finance/Chief
Financial Officer of Employer and each of its subsidiaries and shall be
responsible for those areas in the conduct of the business reasonably
assigned to him by the President of the Company. Employee shall devote all
his business time and efforts to the business of Employer.
4. COMPENSATION AND OTHER PROVISIONS. Employee shall be entitled to the
compensation and benefits hereinafter described in subparagraphs (a)
through (d) (such compensation and benefits being hereinafter referred to
as "Compensation Benefits").
(A) BASE SALARY. Employer or any subsidiary as Employer may direct, shall
pay to Employee a base salary equal to $12,500.00 a month (annualized,
$150,000.00) beginning January 14, 2002 and continuing during the
Service Period, and it may be increased from time to time, hereinafter
referred to as "Base Salary"). The Base Salary and Employee's other
compensation will be reviewed by the Board in six months for an
increase, at least annually during the Service Period and may be
adjusted from time to time as the Board may determine based upon a
performance evaluation. Notwithstanding the foregoing, in the event
that that Employee has satisfactorily performed its duties, in the
discretion of the Board of Directors, and the "Consumer Price Index
United States City Average -Urban Wage Earners and Clerical Workers,"
published by the Bureau of Labor Statistics of the United States
Department of Labor (the "CPI"), shall indicate that as of December 31
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of any year of Employee's employment, the average cost of living
during the twelve (12) months then ended shall have increased over the
average cost of living during the preceding twelve (12) month period,
then the Employee's Base Salary shall be increased prospectively by no
less than such percentage increase plus three percent (3%), effective
on the following yearly anniversary date of this Agreement.
(B) PARTICIPATION IN BENEFIT PLANS. During the Service Period, Employee
shall be eligible to participate in all employee benefit plans and
arrangements now in effect or which may hereafter be established,
including, without limitation, all life, group insurance and medical
care plans and all disability, retirement and other employee benefit
plans of Employer or its operating subsidiaries, any premiums for the
abovementioned shall be paid by Employer.
(C) OTHER PROVISIONS. Employee shall be entitled to such vacation benefits
as is generally received by the officers of the Employer. Employee
shall be reimbursed for all reasonable expenses incurred by him with
the advance consent of the Employer that are necessary for the
performance of his duties, including, but not limited to, all
reasonable entertainment and travel expenses.
(D) BONUS COMPENSATION. Employee shall be entitled to participate under
any of Employer's Management Incentive Compensation Plan and or option
plans as may be in place, and shall be entitled to receive annual
bonuses under such Plan, pursuant to the direction of the Board of
Directors, to include a stock grant of 150,000 of the Series C
Convertible Preferred Stock of Options Talent Group and an incentive
stock options grant of 750,000 common restricted shares of Options
Talent Group at an exercise price of $0.0145 per share (i.e. an
aggregate exercise price of $10,875), vesting 100% on February 28,
2002 (the "First Grant"). The source of the First Grant shall be those
shares issued pursuant to The Agreement and Plan of Merger dated
January 14, 2002, appended hereto as Appendix "A" (the "Plan") and
shall be provided on a basis proportional to their respective grants
under the Plan by The Jefferson Trust, The Paramount Trust, The Xxxxxx
Trust and the Hadid Group collectively referred to herein as the
"Providing Shareholders". The First Grant is subject to the following
conditions:
(i) Save a Triggering Event or Change of Control as defined herein
the First Grant shall be subject to reversal and cancellation if
the Employee shall not remain in the employ of the Employer until
12th January, 2003.
(ii) In respect to the First Grant the Employee shall be subject to
the terms and conditions of the Stockholders Agreement which is
appended hereto as Appendix "B" as if a party thereto.
The Providing Shareholders have executed an appropriate instrument in
relation to the First Grant, which is appended hereto as Appendix "C".
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5. SEVERANCE AND CHANGE OF CONTROL PROVISIONS. Upon the occurrence of a
Triggering Event (as hereinafter defined), Employee shall be entitled to
the immediate receipt of Severance Payments and Benefits (as hereinafter
defined) from Employer in accordance with the terms hereinafter set forth:
(A) TRIGGERING EVENT. The occurrence of any of the following events shall
be defined as a "Triggering Event" for purposes hereof:
(1) The involuntary termination of Employee's employment other than
for Cause (as hereinafter defined), at any time prior to the
expiration of the Service Period;
(2) The voluntary resignation of Employee for any reason whatsoever
within ninety (90) days following a Change of Control; or
(3) The voluntary resignation of Employee for "good reason", which
for purposes hereof is defined as follows; (i) a material
demotion, (ii) a reduction in salary, unless such reduction is
part of a company wide adjustment of salaries, (iii) the
relocation of the principal office of Employer or the relocation
of Employee, outside of the greater Orlando, Florida area, (iv)
the assignment to Employee of any duties that materially affect
the Employee's ability to perform its obligations in respect with
Employee's position as contemplated by Section 3 above (v) any
material breach by Employer of any of the terms and conditions of
this Agreement, which remains uncured following thirty (30) days
after written notice of such alleged Cause by the Employee.
(B) CHANGE OF CONTROL. For purposes of this agreement, the term "Change of
Control" shall mean the occurrence of any of the following events:
(1) Fifty percent (50%) or more of Holding Company's voting stock
shall be acquired by any person, entity or affiliated group;
(2) Fifty percent (50%) or more of Employer's voting stock shall be
acquired by any person, entity or affiliated group
(3) A change to the majority control of Holding Company's board of
directors that is part of a transaction involving the transfer of
30% or more of the Holding Company's voting stock to an unrelated
third Party;
(4) Any merger, consolidation or business combination, pursuant to
which Holding Company is not the surviving corporation or fifty
percent (50%) or more of Holding Company's voting stock shall be
owned or controlled by any new unrelated person or entity;
(5) A liquidation or dissolution of Employer; or
(6) The sale of all or substantially all of Employer's business or
assets to an unrelated person or entity.
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(C) SEVERANCE PAYMENTS AND BENEFITS. For purposes of this Agreement, the
term "Severance Payments and Benefits" shall mean;
(1) Employee shall receive a lump sum payment equal to: two (2)
multiplied by the sum of the Employee's highest Base salary plus
the highest bonus in incentive payments received by Employee in
respect of any year within the three (3) year period preceding
the Triggering Event (or the annualized sum of Employee's Base
Salary plus the maximum amount of bonuses and incentives which
Employee could have been entitled during the year in which the
Triggering Event occurred);
(2) All stock options, warrants and other stock appreciation rights
shall immediately vest, and any conditions applicable to
contingently issuable options, warrants or other stock
appreciation rights shall be waived by Employer;
(3) All benefits applicable to Employee as described in Sections 4(a)
and (b) of the Agreement shall continue for a period of one (1)
year following the Triggering Event or through the expiration of
the Service Period (as if the Triggering Event had not occurred),
whichever is later;
(4) Severance Payments and Benefits will not be subject to mitigation
in any respect; and
(5) The non-competition and non-solicitation periods described in
Section 10 of the Agreement shall be reduced from eighteen (18)
months to twelve (12) months.
6. TERMINATION. Employee's employment hereunder shall terminate as a result of
any of the following events;
(a) Employee's death;
(b) Employee shall be unable to perform his duties hereunder by reason of
illness, accident or other physical or mental disability for a
continuous period of at least six months or an aggregate of nine
months during any continuous twelve month period ("Disability");
(c) Termination by Employee other than as set forth in Section 5 (a), (b)
or (d) herein; or
(d) For Cause. "Cause" shall be defined as (i) any defalcation or
misappropriation of funds or property of the Employer or any affiliate
by Employee or the commission of any dishonest or deceitful act in the
course of his employment with Employer; (ii) Employee's indictment of
a misdemeanor considered to be detrimental to the Employers image or
that compromises the ability of Employee to perform his duties or
felony or of any crime involving moral turpitude; (iii) the engaging
by Employee in personal illegal conduct which, in the reasonable
judgment of the Employer, places Employee and the Employer or any
affiliate, by association with Employee, in disrepute; (iv) refusal of
Employee to perform his duties and responsibilities, persistent
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neglect of duty or chronic absenteeism, which remains uncured
following thirty (30) days after written notice of such alleged Cause
by the Employer; (v) any material breach by Employee of the terms and
conditions of this Agreement , which remains uncured following thirty
(30) days after written notice of such alleged Cause by the Employer;
or (vi) any attempt to obtain a personal profit from any transaction
in which employee has an interest adverse to the Employer unless such
adverse interest and the potential profit is disclosed in writing to
the Board of Directors in advance of such transaction and approved by
the Board of Directors; (vii) without good reason or reasons not
maintaining and producing accurate financial statements on a timely
basis combined with a receipt of a notice from the Employer's auditors
that the accounting records are not being maintained properly; (viii)
without good reason not applying generally accepted accounting
procedures and systems in respect to all aspects of accounting
including, without limitation, cost controls, purchase orders,
payroll, accounts payable and accounts receivable records and
financial statements, and, in general, not maintaining as sound
accounting operation expected of a CFO of a publicly traded company
combined with a receipt of a notice from the Employer's auditors that
the accounting records are not being maintained properly.
(e) Any termination pursuant to subparagraph (b), (c) or (d) of this
Section shall be communicated by a written notice ("Notice of
Termination"), such notice to set forth with specificity the grounds
for termination if the result of "Cause" (which grounds will not be
deemed exclusive of all other grounds that may have been known to
Employer, or which Employer may thereafter become aware of).
Employee's employment under this Agreement shall be deemed to have
terminated as follows: (i) if Employee's employment is terminated
pursuant to subparagraph (a) above, on the date of his death; (ii) if
Employee's employment is terminated pursuant to subparagraph (c)
above, fifteen (15) days after the date on which a Notice of
Termination is given. The date on which termination is deemed to have
occurred pursuant to this paragraph is hereinafter referred to as the
"Date of Termination".
7. PAYMENTS ON TERMINATION. In the event that Employee's employment is
terminated pursuant to section 6 above, Employer shall pay to Employee his
full Base Salary through the Date of Termination together with all benefits
and other compensation, if any, due and owing as of that date.
8. LIFE INSURANCE. If requested by Employer, Employee shall submit to such
physical examinations and otherwise take such actions and execute and
deliver such documents as may be reasonably necessary to enable Employer to
obtain life insurance on the life of Employee for the benefit of Employer.
9. REPRESENTATIONS AND WARRANTIES. Employee hereby represents and warrants to
the Employer that (i) the execution, delivery and performance of the
Agreement by Employee do not and shall not conflict with, breach, violate
or cause a default under any contract, agreement, instrument, order,
judgment or decree to which Employee is a party or by which Employee is
bound, (ii) Employee is not a party to or bound by any Employment
Agreement, Noncompete Agreement or Confidentiality Agreement with any other
person or entity which in any way may restrict, impair or limit the
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performance of his duties hereunder, (iii) upon the execution and delivery
of this Agreement by the Employee, this Agreement shall be the valid and
binding obligation of Employee, enforceable in accordance with its terms,
and (iv) that Employee has all of the requisite skills and knowledge to
perform all of the duties normally found in a CFO of a publicly traded
company and as otherwise imposed or contemplated by this Agreement.
10. DISCLOSURE AND PROTECTION OF CONFIDENTIAL INFORMATION.
(a) For purposes of the Agreement "Confidential Information" means
knowledge, information and material which is proprietary to Employer,
of which Employee may obtain knowledge or access through or as a
result of his employment by Employer (including information conceived,
originated, discovered or developed in whole or in part by Employee).
Confidential Information includes, but is not limited to, (i)
technical knowledge, information and material such as trade secrets,
processes, formulas, data, know-how, improvements, inventions,
computer programs, drawings, patents, and experimental and development
work techniques, an d(ii) marketing and other information such as
supplier lists, customer lists, marketing and business plans, business
or technical needs of customers, consultants, licensees or suppliers
and their methods of doing business, arrangements with customers,
consultants, licenses or suppliers, manuals and personnel records or
data. Confidential Information also includes any information described
above which Employer obtains from another party and which Employer
treats as proprietary or designates as confidential, whether or not
owned or developed by Employer. Notwithstanding the foregoing, any
information which is or becomes available to the general public
otherwise than by breach of this Section 9 shall not constitute
Confidential Information for purposes of the Agreement.
(b) During the term of this Agreement and thereafter, Employee agrees, to
hold in confidence all Confidential Information and not to use such
information for Employee's own benefit or to reveal, report, publish,
disclose or transfer, directly or indirectly, any Confidential
Information to any person or entity, or to utilize any Confidential
Information for any purpose, except in the course of Employee's work
for Employer.
(c) Employee will abide by any and all security rules and regulations,
whether formal or informal, that may from time to time be imposed by
Employer for the protection of Confidential Information, and will
inform Employer of any defects in, or improvements that could be made
to, such rules and regulations.
(d) Employee will notify Employer in writing immediately upon receipt of
any subpoena, notice to produce, or other compulsory order or process
of any court of law or government agency if such document requires or
may require disclosure or other transfer of Confidential Information.
(e) Upon termination of employment, Employee will deliver to Employer any
and all records and tangible property that contain Confidential
Information that are in his possession or under his control.
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11. COVENANT NOT TO COMPETE.
(a) In consideration for Employer entering into this Agreement, Employee
covenants and agrees that during the Service Period and for the
eighteen (18) months period thereafter, Employee will, neither
individually nor on behalf of any other person or entity, without the
express prior written consent of Employer, directly or indirectly,
provide to any person or entity any services that are the same or
similar to the services Employee provided to Employer in respect to
any business activities of such other person or entity which compete
with the business of Employer. Because the Employer's business is
international in scope, Employee acknowledges and agrees that the
above restrictions shall apply to prevent Employee from providing the
prohibited services to any person or entity, wherever located, if the
competing business is conducted in any country in which Employer
conducts, or, at the time of termination, reasonably expected to
conduct, business. Upon the termination of Employee, the business of
the Employer is deemed to include all business activities of the
Employer (and any parent or subsidiary of Employer) that Employer (and
any parent or subsidiary of Employer) engaged in during the one year
period prior to the date of termination and all business activities
that the Employer had made substantial plans to engage in. Employee
will undertake no activities that may lead Employee to compete with or
to acquire rival, conflicting or antagonistic interests to those of
Employer with respect to the business of Employer, whether alone, as a
partner, or as an officer, director, employee, independent contractor,
consultant or shareholder holding 5% or more of the outstanding voting
stock of any other corporation, or as a trustee, fiduciary or other
representative of any other person or entity.
(b) During the Service Period and for a period of eighteen (18) months
after termination of employment, Employee will not, directly or
indirectly, on its behalf or on behalf of any other person or entity,
solicit or induce, or hire, any other employee of Employer or any
parent or affiliate to leave his or her employment, or solicit or
induce, or contract with, any consultant or independent contractor to
sever that person's relationship with Employer.
(c) If any court shall determine that the duration of geographical limit
of any covenant contained in this Section 10 is unenforceable, it is
the intention of the parties that covenant shall not thereby be
terminated but shall be deemed amended to the extent required to
render it valid and enforceable, such amendment to apply only in the
jurisdiction of the court that has made such adjudication.
(d) Employee acknowledges and agrees that the covenants contained in
Sections 10 and 11 hereof are of the essence in this Agreement, that
each of such covenants is reasonable and necessary to protect and
preserve the interests, properties, and business of Employer, and that
irreparable loss and damage will be suffered by Employer should
Employee breach any of such covenants. Employee further represents and
acknowledges that he shall not be precluded from gainful engagement in
a satisfactory fashion by the enforcement of these provisions.
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(e) This Section 11 shall not be effective in the event Employee is
terminated by Employer without Cause.
12. AVAILABILITY OF INJUNCTIVE RELIEF. Employee acknowledges and agrees that
any breach by him of the provisions of Sections 10 or 11 hereof will cause
Employer irreparable injury and damage for which it cannot be adequately
compensated in damages. Employee therefore expressly agrees that Employer
shall be entitled to seek injunctive and/or other equitable relief, on a
temporary of permanent basis to prevent any anticipatory or continuing
breach of this Agreement or any part hereof, and is secured as an
enforcement. Nothing herein shall be construed as a waiver by Employer of
any right it may have or hereafter acquired to monetary damages by reason
of any injury to its property, business or reputation or otherwise arising
out of any wrongful act or omission of it.
13. SURVIVAL. The covenants, agreements, representations and warranties
contained in or made pursuant to this Agreement shall survive Employee's
termination of employment, irrespective of any investigation made by or on
behalf of any party.
14. MODIFICATION. This Agreement sets forth the entire understanding of the
parties with respect to the subject matter hereof, supersedes all existing
agreements between them concerning such subject mater, and may be modified
only by a written instrument duly executed by each party.
15. NOTICES. Any notice required or permitted hereunder shall be deemed validly
given if delivered by had, verified overnight delivery, or by first class,
certified mail to the following addresses (or to such other address as the
addressee shall notify in writing to the other party):
If to Employee: Xxxx X. Xxxxxx
0000 Xxxxxx Xxxxxxx Xxxx.
Xxxxxx Xxxxxxx, XX 00000
If to Employer: Options Talent, Inc.
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, XX
Att: Xxxx Xxxxxx, President
With a copy to: Xxxxxx X. Xxxxxxxxxxx
00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
16. WAIVER. Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement. All waivers
must be in writing.
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17 BINDING EFFECT. Employer's rights and obligations under this Agreement
shall not be transferable by assignment or otherwise, and any attempt to do
any of the foregoing shall be void. The provisions of this Agreement shall
be binding upon the Employee and his heirs and personal representatives,
and shall be binding upon and inure to the benefit of Employer, its
successors and assigns.
18. HEADINGS. The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or
interpretation of this Agreement.
19. GOVERNING LAW: VENUE. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida, without giving effect to
rules governing conflicts of law, with proper venue with respect to all
disputes related to this Agreement being Orange County, Florida.
20. INVALIDITY. The invalidity or unenforceability of any term of this
Agreement shall not invalidate, make unenforceable or otherwise affect any
other term of this Agreement, which shall remain in full force and effect.
21. ATTORNEYS' FEES. In the event any dispute or litigation arises hereunder
between any of the parties hereto, the prevailing party shall be entitled
to all reasonable costs and expenses incurred by it in connection therewith
(including, without limitation, all reasonable attorneys' fees and costs
incurred before and at any trial or other proceeding and at all tribunal
levels), as well as all other relief granted in any suit or other
proceeding.
22. ARBITRATION. Save any equitable relief sought by the Employer, any
controversy or claim arising out of or relating to this Agreement, or the
breach thereof, or otherwise related in any manner to the employment of
Employee by Employer, including any dispute or claim that arises under or
by virtue of any state or federal law, will be settled by binding
arbitration conducted before a single arbitrator selected by the Employer.
The site of any such arbitration will be Orlando, Florida, or as otherwise
mutually agreed upon by the parties. The arbitration will be conducted in
accordance with the rules established by the American Arbitration
Association then in force, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Each
party will bear its own costs and expenses, including fees and expenses of
counsel, associated with the arbitration. The arbitrator shall not be
entitled to award punitive damages to any party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first hereinabove written:
OPTIONS TALENT, INC.
A Delaware corporation
By: _____________________ Its: ___________________________
EMPLOYEE:
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Xxxx X. Xxxxxx
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