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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 16th day of February 2000 by and between
Xxxxxxx X. Xxxxxxxxx, residing at 0000 Xxxxxxx 0, Xxxxx Xxxx, Xxxxxxxx 00000
(hereinafter referred to as the "Employee") and TEAMSTAFF, INC., a New Jersey
corporation with principal offices located at 000 Xxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 (hereinafter referred to as the "Company").
W I T N E S S E T H :
WHEREAS, the Company and its subsidiaries are engaged in the business
of providing Human Resource Administrative Services; and
WHEREAS, the Company desires to employ the Employee for the purpose of
securing for the Company the experience, ability and services of the Employee;
and
WHEREAS, the Employee desires to be employed with the Company, pursuant
to the terms and conditions herein set forth, superseding all prior agreements
between the Company, its subsidiaries and/or predecessors and Employee;
NOW, THEREFORE, it is mutually agreed by and between the parties hereto
as follows:
ARTICLE I
EMPLOYMENT
1.1 Subject to and upon the terms and conditions of this Agreement, the
Company hereby employs the Employee, and the Employee hereby accepts such
employment in his capacity as Senior Vice President, Chief Operating Officer,
PEO Division of TeamStaff, Inc.
ARTICLE II
DUTIES
2.1 The Employee shall, during the term of his employment with the
Company, and subject to the direction and control of the President & CEO of
TeamStaff and the President of the
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PEO Division, perform such duties and functions as he may be called upon to
perform during the term of this Agreement.
2.2 The Employee agrees to devote full business time and his best
efforts in the performance of his duties for the Company and any subsidiary
corporation of the Company.
2.3 The Employee shall perform, in conjunction with the Company's
Executive Management, to the best of his ability the following services and
duties for the Company and its subsidiary corporations (by way of example, and
not by way of limitation):
(i) Those duties attendant to the position with the Company for
which he is hired;
(ii) Establish and implement current and long range objectives,
plans, and policies, subject to the approval of the President & CEO of TeamStaff
and the President of the PEO Division;
(iii) Managerial oversight of the PEO Division's business;
(iv) Ensure that all Company activities and operations are carried
out in compliance with local, state and federal regulations and laws governing
business operations.
(v) Business expansion of the Company.
(vii) Promotion of the relationships of the Company and its
subsidiaries with their respective employees, customers, suppliers and others in
the business community.
2.4 Employee shall be based in the Clearwater/Tampa, Florida area, and
shall undertake such occasional travel, within or without the United States as
is or may be reasonably necessary in the interests of the Company.
ARTICLE III
COMPENSATION
3.1 Commencing the date hereof and during the term hereof, Employee shall be
compensated
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initially at the rate of $160,000 per annum, subject to such increases to be
determined on each 12-month anniversary during the term of this Agreement (the
"Base Salary"), which shall be paid to Employee as in accordance with the
Company's regular payroll periods.
3.2 Employee shall be entitled to receive a bonus (the "Bonus") in accordance
with the Company's Management Bonus Program to be determined at the commencement
of each fiscal year; provided, however, for the fiscal year ended September 30,
2000, Employee shall be entitled to be paid a discretionary Bonus.
3.3 The Company shall deduct from Employee's compensation all federal, state,
and local taxes which it may now or may hereafter be required to deduct.
ARTICLE IV
BENEFITS
4.1 During the term hereof, the Company shall provide Employee with group health
care and insurance benefits as generally made available to the Company's senior
management; provide such other insurance benefits obtained by the Company and
made generally available to the Company's senior management; reimburse the
Employee, upon presentation of appropriate vouchers, for all reasonable business
expenses incurred by the Employee on behalf of the Company upon presentation of
suitable documentation; and pay to Employee the sum of $500 per month as and for
an automobile allowance.
4.2 For each year of the term hereof, Employee shall be entitled to
three (3) weeks paid vacation.
4.3 The Company shall reimburse Employee for the reasonable costs of
moving his furniture and personal belongings from the Philadelphia, PA area to
the Tampa, FL area and the cost of one trip to the Tampa, Fl area for Employee
and his wife.
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ARTICLE V
NON-DISCLOSURE
5.1 The Employee shall not, at any time during or after the termination of his
employment hereunder, except when acting on behalf of and with the authorization
of the Company, make use of or disclose to any person, corporation, or other
entity, for any purpose whatsoever, any trade secret or other confidential
information concerning the Company's business, finances, marketing, computerized
payroll, accounting and information business, personnel and/or employee leasing
business of the Company and its subsidiaries, including information relating to
any customer of the Company or pool of temporary employees, or any other
nonpublic business information of the Company and/or its subsidiaries learned as
a consequence of Employee's employment with the Company (collectively referred
to as the "Proprietary Information"). For the purposes of this Agreement, trade
secrets and confidential information shall mean information disclosed to the
Employee or known by him as a consequence of his employment by the Company,
whether or not pursuant to this Agreement, and not generally known in the
industry. The Employee acknowledges that trade secrets and other items of
confidential information, as they may exist from time to time, are valuable and
unique assets of the Company, and that disclosure of any such information would
cause substantial injury to the Company.
ARTICLE VI
RESTRICTIVE COVENANT
6.1 In the event of the voluntary termination of employment with the Company
prior to the expiration of the term hereof, or Employee's discharge in
accordance with Article VIII, or the expiration of the term hereof without
renewal, Employee agrees that he will not, for a period of one (1) year
following such termination (or expiration, as the case may be) directly or
indirectly enter into or become associated with or engage in any other business
(whether as a partner, officer, director, shareholder, employee, consultant, or
otherwise), which business is located in the States
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of Florida, New Jersey, New York, and Texas or any other state the Company is
operating in and is involved in the professional employer organization business,
or is otherwise engaged in the same or similar business as the Company shall be
engaged and is in direct competition with the Company, or which the Company is
in the process of developing, during the tenure of Employee's employment by the
Company. Notwithstanding the foregoing, the ownership by Employee of less than 5
percent of the shares of any publicly held corporation shall not violate the
provisions of this Article VI.
6.2 In furtherance of the foregoing, Employee shall not during the aforesaid
period of non-competition, directly or indirectly, in connection with any
computerized payroll, employee leasing, or permanent or temporary personnel
business, or any business similar to the business in which the Company was
engaged, or in the process of developing during Employee's tenure with the
Company, solicit any customer or employee of the Company who was a customer or
employee of the Company during the tenure of his employment.
6.3 If any court shall hold that the duration of non-competition or any other
restriction contained in this Article is unenforceable, it is our intention that
same shall not thereby be terminated but shall be deemed amended to delete
therefrom such provision or portion adjudicated to be invalid or unenforceable
or, in the alternative, such judicially substituted term may be substituted
therefor.
ARTICLE VII
TERM
7.1 This Agreement shall be for a term of two (2) years commencing February 16,
2000 and terminating on February 15, 2002 unless sooner terminated as provided
for herein (the "Expiration Date").
7.2 Unless this Agreement is earlier terminated pursuant to the terms hereof,
the Company agrees to notify Employee in writing whether it intends to negotiate
a renewal of this Agreement
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by notice six (6) months prior to the Expiration Date.
ARTICLE VIII
DISABILITY DURING TERM
8.1 In the event Employee becomes totally disabled so that he is unable or
prevented from performing any one or all of his usual duties hereunder for a
period of four (4) consecutive months, and the Company elects to terminate this
agreement in accordance with Article IX, paragraph (B) then, and in that event,
Employee shall receive his Base Salary as provided under Article III of this
Agreement for a period of six (6) months commencing from the date of such total
disability or the balance of the original term of this agreement, whichever is
greater. The obligation of the Company to make the aforesaid payments shall be
modified and reduced and the Company shall receive a credit for all disability
insurance payments which Employee may receive from insurance policies provided
by the Company.
ARTICLE IX
TERMINATION
9.1 The Company may terminate this Agreement:
a. Upon the death of Employee during the term hereof, except that the
Employee's legal representatives, successors, assigns, and heirs shall have
those rights and interests as otherwise provided in this Agreement, including
the right to receive accrued but unpaid incentive compensation and special bonus
compensation on a pro rata basis.
b. Subject to the terms of Article VIII, upon written notice from the
Company to the Employee, if Employee becomes totally disabled and as a result of
such total disability, has been prevented from and unable to perform all of his
duties hereunder for a consecutive period of four (4) months.
c. Upon written notice from the Company to the Employee, at any time
for "Cause." For purposes of this Agreement, "Cause" shall be defined as:
willful disobedience by the
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Employee of a material and lawful instruction of the President & CEO of
TeamStaff or the President of the PEO Division; conviction of the Employee of
any misdemeanor involving fraud or embezzlement or similar crime, or any felony;
breach by the Employee of any material provision of this Agreement; or conduct
amounting to fraud, dishonesty, negligence, willful misconduct, recurring
insubordination, inattention to or unsatisfactory performance of duties which
adversely affects operations of the Company, or excessive absences from work,
provided that the Company shall not have the right to terminate the employment
of Employee pursuant to the foregoing clauses (a) and (b) above unless written
notice specifying such breach shall have been given to the Employee and, in the
case of breach which is capable of being cured, the Employee shall have failed
to cure such breach within thirty (30) days after his receipt of such notice.
9.2 In the event of the termination of this Agreement and the discharge of
Employee by the Company in breach and violation of this Agreement, Employee
shall not be obligated to mitigate damages by seeking or obtaining alternate
employment.
ARTICLE X
TERMINATION OF PRIOR AGREEMENTS
10.1 This Agreement sets forth the entire agreement between the parties
and supersedes all prior agreements between the parties, whether oral or written
prior to the effective date of this Agreement.
10.2 Employee represents and warrants that he is subject to no
contractual restriction, restrictive covenant, or like agreement or restriction
which would conflict with any of the terms of this agreement, or the performance
of his duties contemplated by this agreement. Employee further agrees to
indemnify and defend the Company from any and all claims or liabilities arising
out of a breach of the representation and warranty contained in this
subparagraph 10.2.
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ARTICLE XI
STOCK OPTIONS
11.1 As an inducement to Employee to enter into this Agreement the Company
hereby grants to Employee options to purchase shares of the Company's Common
Stock, $.001 par value, as follows:
Subject to the terms and conditions of the Company's Senior Management
Incentive Plan (the "Plan"), and the terms and conditions set forth in the Stock
Option Certificate which are incorporated herein by reference, the Employee is
hereby granted options to purchase 100,000 shares of the Company's Common Stock,
of which options to purchase 50,000 shall vest on the first anniversary hereof,
and the balance shall vest on the second anniversary hereof. The exercise price
of the option shall be $0.00 [priced on commenced] per share and shall contain
such other terms and conditions as set forth in the stock option agreement. The
foregoing options shall be qualified as incentive stock options to the maximum
as allowed by law. The Options provided for herein are not transferable by
Employee and shall be exercised only by Employee, or by his legal representative
or executor, as provided in the Plan. Such Option shall terminate as provided in
the Plan.
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ARTICLE XII
EXTRAORDINARY TRANSACTIONS
12.1 The Company's Board of Directors has determined that it is appropriate to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including the Employee, to their assigned duties without
distraction in potentially disturbing circumstances arising from the possibility
of a change in control of the Company. A "Change in Control" of the Company
shall be deemed to have occurred if there shall be consummated (i)(x) any
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of the Company's
Common Stock would be converted into cash, securities or other property, other
than a merger of the Company in which the holders of the Company's Common Stock
immediately prior to the merger have the same proportionate ownership of common
stock of the surviving corporation immediately after the merger, or (y) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the
Company, or (ii) the stockholders of the Company approved any plan or proposal
for the liquidation or dissolution of the Company, or (iii) any person (as such
term is used in Sections 13(d) and l3(d)(2) of the Securities Exchange Act of
l934, as amended (the "Exchange Act")), shall become the beneficial owner
(within the meaning of Rule l3d-3 under the Exchange Act) of 20% or more of the
Company's outstanding Common Stock, except in connection with a transaction
approved by the Board of Directors; or (iv) during any period of two consecutive
years, individuals who at the beginning of such period constituted the entire
Board of Directors shall cease for any reason to constitute a majority thereof
unless the election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning of the
period.
12.2 The Company agrees that, if during the term hereof, or during such time as
the
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Employee is otherwise employed by the Company, a Change in Control shall occur,
all options to purchase Common Stock of the Company held by Employee, either
pursuant to this Agreement or otherwise, shall immediately vest and become
exercisable on the first day following a Change in Control. Further, the options
shall be deemed amended to provide that in the event of termination after an
event enumerated in this Article X, the options shall remain exercisable for the
duration of their term; and further, at the Employee's option, an amount equal
to three times the aggregate annual compensation paid to the Employee during the
calendar year preceding the Change in Control shall be credited against the
exercise price of any options held by Employee at the time Employee elects to
exercise such options; provided, however, that if the lump sum severance payment
under this Article XI, either alone or together with other payments which the
Employee has the right to receive from the Company, would constitute a
"parachute payment" (as defined in Section 280G of the Internal Revenue Code of
l954, as amended (the "Code")), such credit shall be reduced to the largest
amount as will result in no portion of the credit under this Article XI being
subject to the excise tax imposed by Section 4999 of the Code.
ARTICLE XIII
ARBITRATION AND INDEMNIFICATION
13.1 Any dispute arising out of the interpretation, application, and/or
performance of this Agreement with the sole exception of any claim, breach, or
violation arising under Articles V or VI hereof shall be settled through final
and binding arbitration before a single arbitrator in the State of New Jersey in
accordance with the Rules of the American Arbitration Association. The
arbitrator shall be selected by the Association and shall be an attorney-at-law
experienced in the field of corporate law. Any judgment upon any arbitration
award may be entered in any court, federal or state, having competent
jurisdiction of the parties.
13.2 The Company hereby agrees to indemnify, defend, and hold harmless the
Employee for any
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and all claims arising from or related to his employment by the Company at any
time asserted, at any place asserted, and to the fullest extent permitted by
law. The Company shall maintain such insurance as is necessary and reasonable to
protect the Employee from any and all claims arising from or in connection with
his employment by the Company, provided such insurance can be obtained without
unreasonable effort and expense.
ARTICLE XIV
SEVERABILITY
If any provision of this Agreement shall be held invalid and unenforceable, the
remainder of this Agreement shall remain in full force and effect. If any
provision is held invalid or unenforceable with respect to particular
circumstances, it shall remain in full force and effect in all other
circumstances.
ARTICLE XV
NOTICE
All notices required to be given under the terms of this Agreement shall be in
writing and shall be deemed to have been duly given only if delivered to the
addressee in person, with written acknowledgment received, or mailed by
certified mail, return receipt requested, as follows:
IF TO THE COMPANY: TeamStaff, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
IF TO THE EMPLOYEE: Xxxxxxx X. Xxxxxxxxx
0000 Xxxxxxx 0
Xxxxx Xxxx, Xxxxxxxx 00000
or to any such other address as the party to receive the notice shall advise by
due notice given in accordance with this paragraph. Notice shall be effective
three (3) days after delivery or mailing.
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ARTICLE XVI
BENEFIT
This Agreement shall inure to, and shall be binding upon, the parties
hereto, the successors and assigns of the Company, and the heirs and personal
representatives of the Employee.
ARTICLE XVII
WAIVER
The waiver by either party of any breach or violation of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of construction and validity.
ARTICLE XVIII
GOVERNING LAW
This Agreement has been negotiated and executed in the State of New
Jersey shall govern its construction and validity.
ARTICLE XIX
JURISDICTION
Any or all actions or proceedings which may be brought by the Company
or Employee under this Agreement shall be brought in courts having a situs
within the State of New Jersey, and Employee and the Company each hereby consent
to the jurisdiction of any local, state, or federal court located within the
State of New Jersey.
ARTICLE XX
ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties
hereto. No change, addition, or amendment shall be made hereto, except by
written agreement signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
affixed their hands and seals the day and year first above written.
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(Corporate Seal) TEAMSTAFF, INC.
By:___________________________________
Xxxxxx X. Xxxxxxx
President & CEO
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Xxxxxxx X. Xxxxxxxxx
Employee
