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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into effective May 2,
1999 by and between REMEDYTEMP, INC., a California corporation (the "Company"),
and Xxxx X. Xxxxx, an individual person ("Xxxxx"), (collectively referred to
herein as the "Parties").
WHEREAS, the Company desires to maintain the benefits of having Xxxxx
continue to serve as its President and Chief Executive Officer and Xxxxx desires
to be employed by the Company as President and Chief Executive Officer.
NOW, THEREFORE, in consideration of the foregoing promises and mutual
covenants, the Parties hereby agree to the following terms and conditions under
which Xxxxx will serve as the Company's Chief Executive Officer and President:
1. EMPLOYMENT SERVICES AND DUTIES
The Company shall employ and retain the services of Xxxxx as its
President and Chief Executive Officer, and Xxxxx hereby agrees to be employed by
the Company as its President and Chief Executive Officer. Xxxxx'x duties and
obligations as President and Chief Executive Officer shall be to perform such
duties and services as the Company's board of directors (the "Board") may from
time to time, assign, either directly or by delegated authority, including, but
not limited to implementing the policies and strategies determined by the Board.
Xxxxx agrees to perform his duties faithfully, to the best of his ability and in
the best interests of the Company, to preserve and protect the confidential
information of the Company, and to perform both his regular duties and other
strategic projects as requested by the Board. As President and Chief Executive
Officer, Xxxxx shall report directly to the Board.
2. TERM OF EMPLOYMENT
Subject to the terms and conditions of this Agreement, the Company shall
employ, and Xxxxx shall serve as President and Chief Executive Officer of the
Company for three (3) years commencing on May 2, 1999 and ending on May 1, 2002
(the "Employment Period").
3. COMPENSATION TERMS
The Company shall compensate Xxxxx for his services rendered as
President and Chief Executive Officer under this Agreement as follows:
(a) Xxxxx shall receive a base salary set annually by the Leadership
Development and Compensation Committee of the Board (the "Compensation
Committee"), as adjusted according to market conditions; provided, however that
Xxxxx'x annual base salary shall not be less than $450,000 per year, payable
semi-monthly. In addition, Xxxxx shall be entitled to earn an annual performance
bonus in an amount to be determined by the Compensation Committee based on
Xxxxx'x satisfaction of certain
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performance goals set annually by the Compensation Committee. The amount of the
annual bonus paid to Xxxxx shall not exceed 100% of his base salary in any
particular year; provided however, that the Compensation Committee, in its sole
discretion, may provide to Xxxxx an annual bonus in excess of 100% of his base
salary to compensate him for extraordinary performance in a particular year.
(b) During the Employment Period, Xxxxx shall be entitled to and
shall receive the same employee benefits package that Xxxxx received as an
executive officer of the Company immediately prior to the date of this
Agreement, including, without limitation, all health, life and disability
insurance and all policies or agreements providing for indemnification.
4. TERMINATION AND SEVERANCE PACKAGE
The Board may terminate Xxxxx'x employment with the Company, with or
without cause, at any time upon notice to Xxxxx. Xxxxx may terminate his
employment with the Company at any time upon notice to the Board. Upon the
termination by the Company of Xxxxx'x employment with the Company, the Company
shall provide Xxxxx the following severance package; provided Xxxxx agrees to
the following terms:
(a) For a period of two (2) years after such termination, Xxxxx
shall receive his annual base salary then in effect plus maximum annual bonus
equal to 100% of Xxxxx'x then annual base salary, payable semi-monthly (the
"Severance Payments"); provided, however that the total amount of Severance
Payments shall not exceed one dollar less than such amount that would constitute
a "parachute payment" as defined in Section 280G under the Internal Revenue Code
of 1986, as amended.
(b) Upon termination by the Company of Xx. Xxxxx'x employment for
any reason other than "for cause" (defined below), all granted options shall
vest automatically and shall remain exercisable for the balance of their term.
(c) If the Company terminates Xx. Xxxxx "for cause," then all of the
unexercised options, whether or not vested, shall expire and become
unexercisable as of the date of such for cause termination. For purposes of this
Agreement, termination for cause shall mean termination for one of the following
reasons: personal dishonesty; willful misconduct; breach of fiduciary duty
involving self-dealing or personal profit; intentional material failure to
perform duties or abide by Company policies, in each case to the extent such
duties or policies have been communicated to Xxxxx in writing or their existence
is otherwise known to Xxxxx and Xxxxx has not cured such failure within a
reasonable time after written notice of such failure is given; conviction, entry
of a plea of guilty or nolo contendere in connection with any alleged violation,
or any actual violation, of any law, rule, regulation (other than traffic
violations or similar offenses) or any cease-and-desist or other court order;
involvement in any legal proceeding which, in the opinion of legal counsel to
the Company, would be required to be disclosed pursuant to rules and regulations
of the Securities and Exchange Commission, other than proceedings under federal
bankruptcy laws or state insolvency laws involving entities in which you have
less than a fifty percent (50%) interest; any intentional material breach of
this Agreement; non-prescription use of any
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controlled substance or the use of alcohol or any other non-controlled substance
which the Board reasonably determines renders you unfit to serve in your
capacity as an officer of the Company; or any intentional act or omission which
the Board reasonably determines has a material adverse effect on the public
image, reputation or integrity of the Company. Termination for cause shall not
include termination on account of job performance failing to meet criteria or
expectations of the Board.
(d) In consideration for the agreements set forth herein and the
Severance Payments, Xxxxx shall, upon the termination of his employment, execute
a release of the Company, the Board, and all officers, employees and agents of
the Company from any and all claims, liabilities, actions, causes of action,
obligations, costs, damages, losses and demands of every kind and nature
whatsoever known or unknown, which arise out of, relate to or are in any manner
whatsoever connected with any action, transaction, occurrence or event which has
occurred prior to the date of the release and those which may arise out of or
are in any manner whatsoever connected with or related to the termination of
Xxxxx'x employment with the Company. Such release shall include a waiver of all
rights granted under Section 1542 of the California Civil Code which reads as
follows: A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which, if known by him must have materially affected his settlement with the
debtor. Cal. Civ. Code Section 1542.
(e) In consideration of the agreements set forth herein and the
Severance Payments, Xxxxx agrees that upon termination by the Company of his
employment with the Company he shall resign as a director of the Board.
5. NONDISCLOSURE
Xxxxx shall at all times keep confidential and maintain the
confidentiality of all proprietary information, confidential information, and/or
trade secrets of the Company, including but not limited to customer lists, the
EDGE system, HPT, IntelliSearch, i/search 2000 and MAPS ("Proprietary
Information"), and shall not, unless the Company's prior written consent is
obtained, at any time after the date hereof, either directly or indirectly, use
any Proprietary Information for his own benefit, or in competition with, or to
the detriment of the Company, or divulge, disclose, or communicate any
Proprietary Information to any person or entity in any manner whatsoever, except
to employees or agents of the Company having a need to know such Proprietary
Information, and only to the extent necessary to perform his responsibilities on
behalf of the Company. In addition, for a period of two (2) years after the
termination of his employment with the Company, Xxxxx shall not solicit
employees or customers of the Company in any geographical location where the
Company conducts business.
6. REGISTRATION EXPENSES
To the extent that Xxxxx is permitted to sell stock in the Company
owned by him individually or in a fiduciary capacity (collectively, the "Xxxxx
Stock") in a public offering of stock by the Company, all expenses incurred in
effecting any registration of such Xxxxx Stock, including, all registration and
filing fees, printing expenses, expenses
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of compliance with blue sky laws, fees and disbursements of counsel for the
Company, expenses of any audits incidental to or required by any such
registration, and expenses of all marketing and promotional efforts requested by
the managing underwriter shall be borne by the Company; provided, however, that
Xxxxx shall bear underwriting discounts and/or brokerage fees and commissions
relating to the sale of the Xxxxx Stock.
7. SEVERABILITY
The provisions of this Agreement are severable. If a court of competent
jurisdiction determines that any one or more provisions of this Agreement is
invalid, void or unenforceable, in whole or in part, it will be severed
therefrom. The remaining provisions of this Agreement shall then continue in
full force without being impaired or invalidated in any way.
8. MODIFICATION AND WAIVER
No waiver or modification of this Agreement or any term hereof shall be
binding unless it is in writing signed by the parties hereto. No failure to
insist upon compliance with any term, provision or condition to this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be or construed as a waiver of any such term, provision or condition or as a
waiver of any other term, provision or condition of this Agreement.
9. NO ASSIGNMENT
The parties acknowledge and agree that this Agreement is personal in
nature and may not be assigned by Xxxxx. The Company may assign its rights,
duties and obligations hereunder.
10. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties
concerning the subject matter hereof. This Agreement supersedes all
negotiations, prior discussions and preliminary agreements. This Agreement may
not be amended except in a writing executed by the parties.
11. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of California and the parties agree that the venue for the
resolution of all disputes hereunder shall be in the appropriate courts in the
County of Orange, California.
12. NOTICES
All notices, requests, demands and other communication required or
contemplated under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered personally or when enclosed in a properly
sealed and addressed envelope, registered or certified, and deposited (postage
prepaid) in a post office or branch post office regularly maintained by the
United States Government.
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Any notice given to the Company under the terms of this Agreement shall
be addressed to the Company at the address of its principal place of business.
Any notice to be given to Xxxxx shall be addressed to him at his home address
last shown on the Company's records, or at such other address as either party
may hereafter designate in writing to the other.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
effective as of May 2, 1999.
REMEDYTEMP, INC., a California
Corporation
By:___________________________
Name:_________________________
Its:__________________________
/s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
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