EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") dated as of January 19, 1998 is entered
into by and between OutSource International of America, Inc., a Florida
corporation (the "Company") and Xxxx Xxxxxxx (the "Employee").
RECITALS
The Company, Tempus, Inc., a Tennessee corporation ("Tempus") and
Employee, the sole shareholder of Tempus, entered into an Asset Purchase
Agreement dated of even date herewith pursuant to which the Company acquired
substantially all of the assets of Tempus. In connection with the acquisition of
the assets of Tempus, the Company, through its Board of Directors, desires to
retain the services of Employee, and Employee desires to be retained by the
Company, on the terms and conditions set forth in this Agreement.
AGREEMENT
For and in consideration of the foregoing and of the mutual covenants
of the parties herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. EMPLOYMENT. The Company hereby employs Employee to serve in the capacities
described herein and Employee hereby accepts such employment and agrees to
perform the services described herein upon the terms and conditions hereinafter
set forth.
2. TERM. The term of Employee's employment pursuant to this Agreement shall
commence on the effective date hereof and shall terminate at the close of
business on July 19, 1998, subject to earlier termination in accordance the
other terms and conditions set forth herein.
3. DUTIES. Employee shall serve as and have the title of Director of Sales and
Operations--Tandem (Memphis Metro Region). The Employee's principal place of
employment shall be Memphis, Tennessee. Employee agrees to devote his full
business time, energy, skills and best efforts to such employment while so
employed. Nothing in this Agreement shall preclude Employee from engaging, so
long as, in the reasonable determination of the Board of Directors, such
activities do not interfere with his duties and responsibilities hereunder, in
charitable and community affairs, from managing any passive investment made by
him or from serving, subject to the prior approval of the Board of Directors, as
a member of the board of directors or as a trustee of any other corporation,
association or entity.
4. COMPENSATION. The Company shall pay Employee, and Employee agrees to accept,
base compensation at the rate of $1,730.77 per week, payable in equal
installments no less frequently than monthly, through the term of this Agreement
("Base Compensation").
5. STOCK OPTIONS. The Company hereby agrees that, if Employee continues to be
employed by the Company on December 31, 1998, upon the achievement by Employee
of mutually agreed upon performance objectives (personal and corporate) for the
calendar year ended December 31, 1998, OutSource International, Inc., the parent
of the Company ("OSI"), shall grant to Employee options to purchase 10,000
shares of the common stock of OSI.
6. FRINGE BENEFITS.
(a) GENERALLY. Employee shall be eligible for fringe benefits
pursuant to any insurance, pension or other employee fringe benefit plan
approved by the Board of Directors that now or hereafter may be made available
to employees of the Company and for which Employee will qualify according to his
eligibility under the provisions thereof.
(b) HEALTH AND DISABILITY INSURANCE. Employee shall be
entitled to participate in such health and disability insurance plans on the
same basis that the Company offers to other employees of the Company from time
to time.
(c) VACATION, HOLIDAYS AND ILLNESS. Employee shall be entitled
to two weeks off for vacation and such additional days off for holidays, illness
or other purposes given to other Tandem regional Directors of Sales and
Operations. Employee acknowledges that the timing of vacation days shall be
subject to the prior written approval of the Company.
7. EXPENSES. The Employee shall be reimbursed for all usual expenses incurred on
behalf of the Company, in accordance with Company practices and procedures,
provided that:
(a) Each such expenditure is of a nature deductible under
Section 162 of the Internal Revenue Code on the Federal income tax return of the
Company as a business expense and not as deductible compensation to Employee;
and
(b) Employee furnishes the Company with adequate documentary
evidence required by the Code or any regulation promulgated thereunder for the
substantiation of such expenditures as a deductible business expense of the
Company and not as deductible compensation to Employee.
Employee agrees that, if at any time, any payment made to Employee by the
Company as a business expense reimbursement shall be disallowed in whole or in
part as a deductible expense to the Company by the appropriate taxing
authorities, Employee shall reimburse the Company to the full extent of such
disallowance.
8. TERMINATION. The term of Employee's employment under this Agreement may be
terminated prior to expiration of the term provided in Paragraph 2 hereof in
accordance with the following paragraphs.
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(a) FOR CAUSE. This Agreement may be immediately terminated by
the Company for Cause (as herein defined). For purposes of this Agreement, the
term "Cause" shall mean the termination of the Employee by the Board of
Directors of the Company as a result of the existence or occurrence of one or
more of the following conditions or events:
(i) a material breach by the Employee of any
provision of this Agreement, or the willful and continued failure of Employee
substantially to perform his duties under his employment with the Company;
(ii) Employee's willful misconduct or gross
negligence in connection with the performance of his duties as an employee or
officer of the Company;
(iii) performance by the Employee of any act of
fraud or material misrepresentation or a material act of misappropriation which
results or is intended to result in Employee's personal enrichment at the
expense of the Company;
(iv) conviction of the Employee of any crime
which constitutes either (i) a felony offense involving violence (but not
involving a motorized vehicle) or fraud, embezzlement, theft or business
activities, or (ii) a misdemeanor involving fraud, embezzlement or theft in the
United States or which, if it had been committed in the United States, would
constitute either a felony offense involving violence or fraud, embezzlement,
theft or business activities or a misdemeanor involving fraud, embezzlement or
theft in the United States;
(v) violation by the Employee of any law which
results in the entry of a judgment or order enjoining or preventing the Employee
from such activities as are essential for the Employee to perform his services
as required by this Agreement; or
(vi) a good faith determination by the Board of
Directors that Employee has engaged in conduct or activities materially damaging
to the business of the Company, monetarily or otherwise, it being understood
that neither conduct or activities pursuant to the Employee's exercise of his
good faith business judgment nor unintentional physical damage to properties by
the Employee shall be a ground for such a determination.
(b) MUTUAL. Employee's employment under this Agreement may be
terminated upon mutual written agreement of the Company and the executive.
(c) DEATH. In the event of the death of Employee, this
Agreement shall terminate immediately.
(d) DISABILITY. If, during Employee's employment under this
Agreement, Employee shall become permanently disabled and unable to perform his
duties as required herein ("Disability") for a consecutive period of sixty (60)
days, then at the expiration of said 60 days, the Company may, upon fifteen (15)
days written notice to Employee, terminate Employee's employment under this
Agreement.
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(e) SEVERANCE. In the event of the termination of Employee's
employment under this Agreement for any reason other than Employee's death or
Disability, the Company shall be obligated only to continue to pay to Employee
his Base Compensation, if any, earned up to the date of termination and shall
reimburse the Employee for any expenses to which the Employee is due
reimbursement by the Company under Paragraph 7 hereof. In addition, Company
shall pay any vested benefits, if any, owed to Employee under any plan provided
for Employee under Paragraph 6 hereof in accordance with the terms of such plan
as in effect on the date of termination of employment under this Paragraph 8(e).
9. DEATH AND DISABILITY. In the event of the termination of Employee's
employment under this Agreement by reason of the Employee's death or Disability,
the Company shall pay Employee (or his heirs and/or personal representatives),
Base Compensation through the date of death or the date of termination for
Disability as provided in Paragraph 8(d), respectively.
10. NOTICES. Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and if sent by registered mail to the
addresses below or to such other address as either party shall designate by
written notice to the other:
IF TO THE EMPLOYEE: To the address set forth below his signature on the
signature page hereof.
IF TO THE COMPANY:
OutSource International of America, Inc.
0000 Xxxx Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
11. ENTIRE AGREEMENT; MODIFICATION.
(a) This Agreement contains the entire agreement of the
Company and Employee with respect to the matters set forth herein, and the
Company and Employee hereby acknowledge and agree that this Agreement supersedes
any prior statements, writings, promises, understandings or commitments between
the parties hereof.
(b) No future oral statements, promises or commitments with
respect to the subject matter hereof, or other purported modification hereof,
shall be binding upon the parties hereto unless the same is reduced to writing
and signed by each party hereto.
12. ASSIGNMENT. The rights and obligations of the Company under this Agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of the Company. The Employee may not assign his rights and obligations
under this Agreement.
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13. MISCELLANEOUS.
(a) This Agreement shall be subject to and governed by the
laws of the State of Florida, without regard to the conflicts of laws principles
thereof.
(b) The parties to this Agreement agree that any claim, suit,
action or proceeding, brought by either party, arising out of or relating to
this Agreement or the transactions contemplated hereby shall be submitted for
adjudication exclusively in any Florida state or federal court sitting in
Broward County, Florida, and each of the parties hereto expressly agrees to be
bound by such selection of jurisdiction and venue for purposes of such
adjudication. Each party: (i) waives any objection which it may have that such
court is not a convenient forum for any such adjudication; (ii) agrees and
consents to the personal jurisdiction of such court with respect to any claim or
dispute arising out of or relating to this Agreement or the transactions
contemplated hereby; and (iii) agrees that process issued out of such court or
in accordance with the rules of practice of such court shall be properly served
if served personally or served by certified mail or other form of substituted
service, as provided under the rules of practice of such court. In the event of
any suit, action or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby the prevailing party thereunder shall be
entitled to recover reasonable attorneys' and paralegals' fees (for
negotiations, trials, appeals and collection efforts) and court costs incurred
in connection therewith in addition to any other relief to which such party may
be entitled. The prevailing party shall be the party that prevails on its claim
whether or not an award or judgement is entered in its favor.
(c) The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or the interpretation
of this Agreement.
(d) The failure of any party to enforce any provision of this
Agreement shall in no manner affect the right to enforce the same, and the
waiver by any party of any breach of any provision of this Agreement shall not
be construed to be a waiver by such party of any succeeding breach of such
provision or a waiver by such party of any breach of any other provision.
(e) All written notices required in this Agreement shall be
sent postage prepaid by certified or registered mail, return receipt requested.
(f) In the event any one or more of the provisions of this
Agreement shall for any reason be held invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unimpaired, and the invalid,
illegal or unenforceable provision shall be replaced by a mutually acceptable
valid, and enforceable provision which comes closest to the intent of the
parties.
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(g) This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COMPANY
OutSource International of America, Inc.
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Its: Field V.P.
EMPLOYEE
/s/ XXXX XXXXXXX
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Xxxx Xxxxxxx
Address:
0000 Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxx 00000
