PURESPECTRUM, INC. EMPLOYMENT CONTRACT
Exhibit
10.1
PURESPECTRUM,
INC.
This
Agreement made as of the 1st day of October, 2008, between PureSpectrum, Inc.
(the "Company") and Xxx Xxxxxxx (the "Employee").
WHEREAS, the Company desires
to employ Employee for the period and upon and subject to the terms herein
provided; and
WHEREAS, the Company desires
to be assured that Employee (i) will not compete with the Company for the period
and within the geographical areas hereinafter specified and (ii) will not employ
or disclose any of the Company's proprietary or confidential
information;
WHEREAS, Employee is willing
to agree to be employed by the Company upon and subject to the terms herein
provided;
NOW, THEREFORE, in
consideration of the premises, the mutual covenants and agreements hereinafter
set forth and for other good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties hereto covenant
and agree as follows:
1. Term of
Employment: Compensation.
a. The
Company agrees to employ Employee as an employee from the date hereof, for a
period of five (5) years or until the earlier termination of this Agreement
pursuant to the terms hereof. The Company will pay Employee base salary for his
services rendered hereunder at an initial annual rate of $175,000. Upon receipt
by the Company of an investment commitment of at least $5,000,000 and physical
receipt of at least $1,000,000 of such commitment, Employee's base salary shall
increase to an annual rate of $275,000 effective October 1, 2008. Employee shall
have the option to receive any amounts which were not paid to Employee from
October 1, 2008 until such time as the increase in salary becomes payable in
cash or restricted common stock of the Company at the then current market price.
Employee's salary shall be paid in accordance with the Company's regular payroll
practices as determined by the Company, subject only to such payroll and
withholding deductions as are required by law and such other payroll deductions,
as are determined by the Company policy or as Employee may approve. Employee
shall receive an annual salary review and shall be considered for salary
increases consistent with the profitability of the Company and with the salary
increases of the other executive level employees of the Company.
b. The
Company does not presently have a stock option plan, bonus plan or a company
vehicle plan in place. In the event the Company shall implement any such plan in
the future, Employee shall be entitled to participate in such plan in a manner
consistent with that of other executive level employees.
c. Employee
shall be entitled to up to four (4) weeks paid vacation annually. To the extent
that Employee does not use all of his vacation in any year, he may elect to
carryover such unused vacation to the next year or to receive compensation in
lieu of such unused vacation.
d. Employee
shall be entitled to participate in and receive all benefits under any welfare
benefit plan or program, including, without limitation, group medical and dental
insurance for himself and his dependents, and all employee benefits, including,
without limitation, hospital, medical, health and disability insurance, paid
holidays, paid sick and personal days and/or any retirement savings plan or
program provided at any time by the Company to any of its executive level
employees. The benefits offered by the Company are subject to change from time
to time as determined in the sole and absolute discretion of the Board of
Directors of the Company.
e. Employee
shall be entitled to reimbursement by the Company for all ordinary and necessary
business expenses incurred by Employee in the performance of his
duties.
f. Employee's
location of employment shall be at Savannah, Georgia and employee shall not be
required to change his location of employment beyond 20 miles from the present
location.
2. Office
and Duties. Employee shall hold the position of President
& Chief Executive Officer and shall have the duties normally ascribed to
that position and as assigned to him by the Company from time to time in its
sole discretion. Employee shall act at all times to promote the Company's
business and best interests. Employee shall devote substantially all business
time, labor, skill, undivided attention and best ability to the performance of
his duties hereunder in a manner, which will faithfully and diligently further
and expanding the business and interests of the Company.
During
the term of this contract, the duties of the Employee shall not be significantly
changed and the reporting structure shall not be changed so that the Employee's
responsibilities or authority are diminished unless Employee shall have agreed
to such change.
3. Termination
of Emplovment. Notwithstanding any other provision of this
Agreement, Employee's employment shall terminate on the death of the Employee
and may be terminated by the Company, as follows:
(a) For
cause, in the event of Employee's willful misconduct in the performance of his
duties hereunder, or conviction of a crime involving moral
turpitude.
(b) For
cause, upon not less than 90 days' notice to Employee if prevented by illness,
accident or other disability (mental or physical) from discharging the duties
hereunder for one or more periods totaling three months during any consecutive
12 month period.
(c) For
cause, for any material breach by the Employee of the terms hereof, but only
upon not less than 30 days' written notice to the Employee specifying the breach
relied on for such termination during which time Employee shall be given the
opportunity to cure such breach, provided, however, that if Employee is
diligently working to cure such breach and is able to demonstrate that he will
be able to cure such breach within a reasonable time, the notice period shall be
extended accordingly.
4. Confidentiality.
(a) Employee
shall not, either during the period of his employment with the Company or
thereafter, reveal or disclose to any person outside the Company or use to his
own benefit, any marketing technique or cost method, or any customer, mailing or
supplier list, whether or not supplied by the Company, and whether or not made,
developed and/or conceived by Employee or by others in the employ of the
Company. Upon the termination of Employee's employment in any manner or for any
reason, Employee shall promptly surrender to the Company a[1 copies of any of
the foregoing, together with any other documents, materials, data, information
and equipment belonging to or relating to the Company's business and in his
possession, custody or control, and Employee shall not thereafter retain or
deliver to any other person, any of the foregoing or any summary or memorandum
thereof.
(b) Employee
has executed, or concurrently with the execution of the Agreement will execute,
a Confidentiality Agreement which will deal with the matters of confidentiality
in greater detail and which shall be deemed to be incorporated herein and to be
a part of this Agreement.
5. Restriction. Employee
agrees that during the period of his employment hereunder and for 24 months from
termination of employment for any reason, whichever date is later:
(a) Employee
will not hold an interest, directly or indirectly, as an investor in any other
business or enterprise, operating within the geographic area then served by the
Company, whose business is engaged in the manufacture, sale or distribution of
compact fluorescent lighting; and
(b) Employee
will not, directly or indirectly for his own account or as investor, employee,
consultant, officer, director, partner, joint venturer or otherwise, engage
within the geographic area then served by the Company, in any phase of the
business which engages in the manufacture, sale or distribution of compact
fluorescent lighting.
6. No
Solicitation. Employee will not during the period of his
employment hereunder and for a period of 24 months after termination of
employment for any reason solicit or attempt to induce, directly or indirectly,
any employee of the Company to accept employment with a direct competitor of the
Company or with any business or enterprise intending to compete with the
Company.
7. Severability. Employee
and the Company are of the belief that the period of time and the area herein
specified in 5 and 6 above are reasonable in view of the nature of the business
in which the Company is engaged the state of its development and Employee's
knowledge of the business. However, if such period or such area should be
adjudged unreasonable in any judicial proceeding, then the period of time shall
be reduced by such number of months or such area shall be reduced by elimination
of such portion of such area, or both, as are deemed unreasonable, so that this
covenant may be enforced in such area and during such period of time as is
adjudged to be reasonable.
8. Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been given when delivered or mailed by first-class, registered or
certified mail, postage prepaid, addressed (a) if to Employee, to such address
the Employee shall furnish to the Company in writing for the purpose; and (b) if
to the Company, at its principal place of business, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, XX, 00000.
9. Entire
Agreement. This Agreement contains the entire agreement
between the Company and the Employee with respect to the subject matter hereof
and there have been no oral or other agreements of any kind whatsoever as a
condition precedent or inducement to the signing of this Agreement or otherwise
concerning this Agreement or the subject matter hereof.
10. Amendments. This
Agreement may not be amended, nor shall any waiver, change, modification,
consent or discharge be effective except by an instrument in writing executed by
or on behalf of the party against whom enforcement of any waiver, change,
modification, consent or discharge is sought.
11. General
Provisions. Employee further agrees that his obligations
hereunder shall be binding upon him irrespective of the duration of his
employment by the Company, the reasons for any cessation of his employment by
the Company, or the amount of his compensation and shall survive the termination
of this Agreement (whether such termination is by the Company, by the Employee,
upon expiration of this Agreement or otherwise).
12. No
Conflicts. Employee represents and warrants to the Company
that he is not now under any obligations to any person, firm or corporation, and
has no other interest which is inconsistent or in conflict with this Agreement,
or which would prevent, limit or impair, in any way, the pertormance by him of
any of the covenants or his duties in his employment hereunder.
13. Governing
Law. This Agreement shall be governed by, construed and
enforced in accordance with the law (other than the law governing conflict of
law questions) of the State of Georgia.
14. Prior
Agreement. This Agreement supersedes the Employment Agreement
dated May 1, 2008 between the parties.
IN WITNESS WHEREOF, the
parties have executed or caused to be executed this Agreement as of the date
first above written.
PureSpectrum,
Inc.
|
By:
|
/S/ Xxx X. Xxxxxxx
|
/S/
|
Xxxxxxx X. Xxxxxx
|
||
|
Title:
President/CEO
|
EXEC
VP
|
||||
Employee
|
By:
|
/S/ Xxx X. Xxxxxxx
|
Title:
President/CEO
PURESPCTRUM,
INC.
AMENDMENT
TO EMPLOYMENT CONTRACT
August
1, 2009
Whereas, the undersigned are
parties to an Employment Contract dated October 1, 2008; and
Whereas, the Company's present
financial circumstances require that the compensation provided for in said
Contract be adjusted;
Now, therefore, the parties
hereto agree as follows:
Effective
August 1, 2009 and continuing until such time as the Company, in good faith,
determines that its financial circumstances permit, the compensation to be paid
Employee shall be reduced to an annual rate of $ 217,000.00
All other
provisions of said Employment Contract shall remain in effect and
unchanged.
IN WITNESS WHEREOF, the
parties have executed or caused to be executed this Agreement as of the date
first above written.
PureSpectrum,
Inc.
|
By:
|
/S/ Xxxxxxx X. Xxxxxx
|
|
Title:
|
EXEC VP
|
Employee
|
By:
|
/S/ Xxx X. Xxxxxxx
|
Name: Xxx
Xxxxxxx
Title: President
and CEO
