EXHIBIT 10.11
EMPLOYMENT AGREEMENT BETWEEN THE COMPANY AND XXXXXX X. XXXXXXXXXXXXXXX
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 11th day of April, 2001,
by and between Personnel Group of America, Inc., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxxxxxxxxxxx ("Executive").
WITNESSETH:
WHEREAS, Executive and the Company deem it to be in their respective
best interests to enter into an agreement providing for the Company's employment
of Executive pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby agreed as follows:
1. Effective Date. This Agreement shall be effective as of the
11th day of April 2001, which date shall be referred to herein as the
"Effective Date".
2. Position and Duties.
(a) The Company hereby employs Executive as its Senior
Vice President Corporate Development and Strategic commencing as of the
Effective Date for the "Term of Employment" (as herein defined below). In this
capacity, Executive shall devote his best efforts and his full business time and
attention to the performance of the services customarily incident to such
offices and position and to such other services of a senior executive nature as
may be reasonably requested by the Chief Executive Officer of the Company which
may include services for one or more subsidiaries or affiliates of the Company.
Executive shall in his capacity as an employee and officer of the Company be
responsible to and obey the reasonable and lawful directives of the Chief
Executive Officer.
(b) Executive shall devote his full time and attention to
such duties, except for sick leave, reasonable vacations, and excused leaves of
absence as more particularly provided herein. Executive shall use his best
efforts during the Term of Employment to protect, encourage, and promote the
interests of the Company.
3. Compensation.
(a) Base Salary. The Company shall pay to Executive
during the Term of Employment a minimum salary at the rate of two hundred
thousand dollars ($200,000) per calendar year and agrees that such salary shall
be reviewed at least annually. Such salary shall be subject to discretionary
annual increases as determined by the Chief Executive Officer and approved by
the Board of Directors. Such salary shall be payable in accordance with the
Company's normal payroll procedures. (Executive's annual salary, as set forth
above or as it may be increased from time to time as set forth herein, shall be
referred to hereinafter as
"Base Salary.") At no time during the Term of Employment shall Executive's Base
Salary be decreased from the amount of Base Salary then in effect.
(b) Performance Bonus. In addition to the compensation
otherwise payable to Executive pursuant to this Agreement, Executive shall be
eligible to receive an annual bonus ("Bonus") pursuant to a performance bonus
plan (the "Bonus Plan") which shall be established by the Company for its senior
executive officers and which shall provide for bonus compensation to be payable
based upon the financial and other performance of the Company and its senior
executives.
4. Benefits. During the Term of Employment:
(a) Executive shall be eligible to participate in any
life, health and long-term disability insurance programs, pension and retirement
programs, stock option and other incentive compensation programs, and other
fringe benefit programs made available to senior executive employees of the
Company from time to time, and Executive shall be entitled to receive such other
fringe benefits as may be granted to him from time to time by the Company.
(b) Executive shall be allowed 26 days of paid time off
(PTO) per calendar year and leaves of absence with pay on the same basis as
other senior executive employees of the Company.
(c) The Company shall reimburse Executive for reasonable
business expenses incurred in performing Executive's duties and promoting the
business of the Company, including, but not limited to, reasonable entertainment
expenses, travel and lodging expenses, following presentation of documentation
in accordance with the Company's business expense reimbursement policies.
5. Term; Termination of Employment. As used herein, the phrase
"Term of Employment" shall mean the period commencing on the Effective Date and
ending on April 11, 2002; provided, however, that as of the expiration date of
each of (i) the initial Term of Employment and (ii) if applicable, any Renewal
Period (as defined below), the Term of Employment shall automatically be
extended for a one (1) year period (each a "Renewal Period") unless either the
Company or Executive provides six (6) months' notice to the contrary.
Notwithstanding the foregoing, the Term of Employment shall expire on the first
to occur of the following:
(a) Termination by the Company Without Cause or By
Executive With Good Reason. Notwithstanding anything to the contrary in this
Agreement, whether express or implied, the Company may, at any time, terminate
Executive's employment for any reason other than Cause (as defined below) by
giving Executive at least 60 days' prior written notice of the effective date of
termination. In the event Executive's employment hereunder is terminated by the
Company other than for Cause or by Executive for Good Reason (as defined
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below), Executive shall be entitled to receive (y) his Base Salary as he would
have received such amounts during the period commencing on the effective date of
such termination and ending on the First Anniversary thereof (the "Salary
Continuation Period"), as if Executive were still employed hereunder during the
Salary Continuation Period; and (z) if it has not previously been paid to
Executive, any Bonus to which Executive had become entitled under the Bonus Plan
prior to the effective date of such termination. In addition, all of Executive's
stock options with respect to the Company's stock shall become immediately and
fully exercisable. During the Salary Continuation Period, Executive and his
spouse and dependents shall be entitled to continue to be covered by all group
medical, health and accident insurance or other such health care arrangements in
which Executive was a participant as of the date of such termination, at the
same coverage level and on the same terms and conditions which applied
immediately prior to the date of Executive's termination of employment, until
Executive obtains alternative comparable coverage under another group plan,
which coverage does not contain any pre-existing condition exclusions or
limitations; provided, however, that if, as the result of the termination of
Executive's employment, Executive and/or his otherwise eligible dependents or
beneficiaries shall become ineligible for benefits under any one or more of the
Company's benefit plans, the Company shall continue to provide Executive and his
eligible dependents or beneficiaries, through other means, with benefits at a
level at least equivalent to the level of benefits for which Executive and his
dependents and beneficiaries were eligible under such plans immediately prior to
the date of Executive's termination of employment. At the termination of the
benefits coverage under the preceding sentence, Executive and his spouse and
dependents shall be entitled to continuation coverage pursuant to Section 4980B
of the Internal Revenue Code of 1986, as amended, Sections 601-608 of the
Employee Retirement Income Security Act of 1974, as amended, and under any other
applicable law, to the extent required by such laws, as if Executive had
terminated employment with the Company on the date such benefits coverage
terminates.
For purposes of this Agreement, "Good Reason" shall mean, without the
express written consent of Executive, the occurrence of any of the following
events unless such events are fully corrected within 30 days following written
notification by Executive to the Company that he intends to terminate his
employment hereunder for one of the reasons set forth below:
(i) a material breach by the Company of any material
provision of this Agreement, including, but not limited to,
the assignment to Executive of any duties inconsistent with
Executive's position in the Company or an adverse alteration
in the nature or status of Executive's responsibilities;
(ii) the Company's requiring the Executive to be
based anywhere other than the metropolitan area where he
currently works and resides; and
(iii) the occurrence of a "Change in Control" as
defined below.
For purposes of this Agreement a "Change in Control" shall mean an
event as a result of which: (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities
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Exchange Act of 1934 (the "Exchange Act")), is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 50% of the total
voting power of the voting stock of the Company; (ii) the Company consolidates
with, or merges with or into another corporation or sells, assigns, conveys,
transfers, leases or otherwise disposes of all or substantially all of its
assets to any person, or any corporation consolidates with, or merges with or
into, the Company, in any such event pursuant to a transaction in which the
outstanding voting stock of the Company is changed into or exchanged for cash,
securities or other property, other than any such transaction where (A) the
outstanding voting stock of the Company is changed into or exchanged for (x)
voting stock of the surviving or transferee corporation or (y) cash, securities
(whether or not including voting stock) or other property, and (B) the holders
of the voting stock of the Company immediately prior to such transaction own,
directly or indirectly, not less than 50% of the voting power of the voting
stock of the surviving corporation immediately after such transaction; or (iii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of the Company (together with any new
directors whose election by such Board or whose nomination for election by the
stockholders of the Company was approved by a vote of 66-2/3% of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of the Company then in
office; or (iv) the Company is liquidated or dissolved or adopts a plan of
liquidation, provided, however, that a Change in Control shall not include any
going private or leveraged buy-out transaction which is sponsored by Executive
or in which Executive acquires an equity interest materially in excess of his
equity interest in the Company immediately prior to such transaction (each of
the events described in (i), (ii), (iii) or (iv) above, as provided otherwise by
the preceding clause being referred to herein as a "Change in Control").
(b) Termination for Cause. The Company shall have the
right to terminate Executive's employment at any time for Cause by giving
Executive written notice of the effective date of termination (which effective
date may, except as otherwise provided below, be the date of such notice). If
the Company terminates Executive's employment for Cause, Executive shall be paid
his unpaid Base Salary through the date of termination and the amount of any
unpaid Bonus to which Executive had become entitled under the Bonus Plan prior
to the effective date of such termination and the Company shall have no further
obligation hereunder from and after the effective date of termination and the
Company shall have all other rights and remedies available under this or any
other agreement and at law or in equity.
For purposes of this Agreement only, Cause shall mean:
i) fraud, misappropriation, embezzlement, or other
act of material misconduct against the Company or any of its
affiliates;
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ii) substantial and willful failure to perform
specific and lawful directives of the Board, as reasonably
determined by the Board;
iii) willful and knowing violation of any rules or
regulations of any governmental or regulatory body, which is
materially injurious to the financial condition of the
Company; or
iv) conviction of or plea of guilty or nolo
contendere to a felony;
provided, however, that with regard to subparagraph (ii) above, Executive may
not be terminated for Cause unless and until the Company has given his
reasonable written notice of its intended actions and specifically describing
the alleged events, activities or omissions giving rise thereto and with respect
to those events, activities or omissions for which a cure is possible, a
reasonable opportunity to cure such breach; and provided further, however, that
for purposes of determining whether any such Cause is present, no act or failure
to act by Executive shall be considered "willful" if done or omitted to be done
by Executive in good faith and in the reasonable belief that such act or
omission was in the best interest of the Company and/or required by applicable
law.
(c) Termination on Account of Death. In the event of
Executive's death while in the employ of the Company, his employment hereunder
shall terminate on the date of his death and Executive shall be paid his unpaid
Base Salary through the date of termination and the amount of any unpaid Bonus
to which Executive had become entitled under the Bonus Plan prior to the
effective date of such termination. In addition, any other benefits payable on
behalf of Executive shall be determined under the Company's insurance and other
compensation and benefit plans and programs then in effect in accordance with
the terms of such programs.
(d) Voluntary Termination by Executive. In the event that
Executive's employment with the Company is voluntarily terminated by Executive
other than for Good Reason, Executive shall be paid his unpaid Base Salary
through the date of termination and the amount of any unpaid Bonus to which
Executive had become entitled under the Bonus Plan prior to the effective date
of such termination, and the Company shall have no further obligation hereunder
from and after the effective date of termination and the Company shall have all
other rights and remedies available under this Agreement or any other agreement
and at law or in equity. Executive shall give the Company at least 60 days'
advance written notice of his intention to terminate his employment hereunder.
(e) Termination on Account of Disability. To the extent
not prohibited by The Americans With Disabilities Act of 1990 or the North
Carolina Handicapped Persons Protection Act if, as a result of Executive's
incapacity due to physical or mental illness (as determined in good faith by a
physician acceptable to the Company and Executive), Executive shall have been
absent from the full-time performance of his duties with the Company for 120
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consecutive days during any twelve (12) month period or if a physician
acceptable to the Company advises the Company that it is likely that Executive
will be unable to return to the full-time performance of his duties for 120
consecutive days during the succeeding twelve (12) month period, his employment
may be terminated for "Disability." During any period that Executive fails to
perform his full-time duties with the Company as a result of incapacity due to
physical or mental illness, he shall continue to receive his Base Salary, Bonus
and other benefits provided hereunder, together with all compensation payable to
his under the Company's disability plan or program or other similar plan during
such period, until Executive's employment hereunder is terminated pursuant to
this Section 5(e). Thereafter, Executive's benefits shall be determined under
the Company's retirement, insurance, and other compensation and benefit plans
and programs then in effect, in accordance with the terms of such programs.
6. Confidential Information, Non-Solicitation and
Non-Competition.
(a) During the Term of Employment and for two (2) years
thereafter, Executive shall not, except as may be required to perform his duties
hereunder or as required by applicable law, disclose to others or use, whether
directly or indirectly, any Confidential Information regarding the Company.
"Confidential Information" shall mean information about the Company, its
subsidiaries and affiliates, and their respective clients and customers that is
not available to the general public and that was learned by Executive in the
course of his employment by the Company, including (without limitation) any
proprietary knowledge, trade secrets, data, formulae, information, and client
and customer lists and all papers, resumes, records (including computer records)
and the documents containing such Confidential Information. Executive
acknowledges that such Confidential Information is specialized, unique in nature
and of great value to the Company, and that such information gives the Company a
competitive advantage. Upon the termination of his employment for any reason
whatsoever, Executive shall promptly deliver to the Company all documents,
computer tapes and disks (and all copies thereof) containing any Confidential
Information.
(b) During the Term of Employment and for two (2) years
thereafter, Executive shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage in, work
for, consult, provide advice or assistance or otherwise participate in any
activity which is competitive with the business of the Company, in any
geographic area in which the Company is now or shall then be doing business.
Executive further agrees that during such period he will not assist or encourage
any other person in carrying out any activity that would be prohibited by the
foregoing provisions of this Section 6 if such activity were carried out by
Executive and, in particular, Executive agrees that he will not induce any
employee of the Company to carry out any such activity; provided, however, that
the "beneficial ownership" by Executive, either individually or as a member of a
"group," as such terms are used in Rule 13d of the General Rules and Regulations
under the Exchange Act, of not more than five percent (5%) of the voting stock
of any publicly held corporation shall not be a violation of this Agreement. It
is further expressly agreed that the Company
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will or would suffer irreparable injury if Executive were to compete with the
Company or any subsidiary or affiliate of the Company in violation of this
Agreement and that the Company would by reason of such competition be entitled
to injunctive relief in a court of appropriate jurisdiction, and Executive
further consents and stipulates to the entry of such injunctive relief in such a
court prohibiting Executive from competing with the Company or any subsidiary or
affiliate of the Company in violation of this Agreement.
(c) During the Term of Employment and for two (2) years
thereafter, Executive shall not, directly or indirectly, influence or attempt to
influence customers or suppliers of the Company or any of its subsidiaries or
affiliates, to divert their business to any competitor of the Company.
(d) Executive recognizes that he will possess
confidential information about other employees of the Company relating to their
education, experience, skills, abilities, compensation and benefits, and
interpersonal relationships with customers of the Company. Executive recognizes
that the information he will possess about these other employees is not
generally known, is of substantial value to the Company in developing its
business and in securing and retaining customers, and will be acquired by his
because of his business position with the Company. Executive agrees that, during
the Term of Employment, and for a period of two (2) years thereafter, he will
not, directly or indirectly, solicit or recruit any employee of the Company for
the purpose of being employed by his or by any competitor of the Company on
whose behalf he is acting as an agent, representative or employee and that he
will not convey any such confidential information or trade secrets about other
employees of the Company to any other person.
(e) If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive in
duration or scope or is unreasonable or unenforceable under the laws of that
state, it is the intention of the parties that such restriction may be modified
or amended by the court to render it enforceable to the maximum extent permitted
by the law of that state.
(f) Executive acknowledges that he was informed of the
time, territory, scope and other essential requirements of the restrictions in
this Section 6 when he agreed to become employed with the Company under the
terms set forth in this Agreement, and Executive further acknowledges that he
has received sufficient and valuable consideration for his agreement to such
restrictions.
7. No Offset - No Mitigation. Executive shall not be required to
mitigate damages under this Agreement by seeking other comparable employment.
The amount of any payment or benefit provided for in this Agreement, including
welfare benefits, shall not be reduced by any compensation or benefits earned by
or provided to him as the result of employment by another employer, except as
provided otherwise in Section 5(a) with respect to health and insurance benefits
provided during the Salary Continuation Period.
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8. Designated Beneficiary. In the event of the death of Executive
while in the employ of the Company, or at any time thereafter during which
amounts remain payable to Executive under Section 5, such payments (other than
the right to continuation of welfare benefits) shall thereafter be made to such
person or persons as Executive may specifically designate (successively or
contingently) to receive payments under this Agreement following Executive's
death by filing a written beneficiary designation with the Company during
Executive's lifetime. Such beneficiary designation shall be in such form as may
be prescribed by the Company and may be amended from time to time or may be
revoked by Executive pursuant to written instruments filed with the Company
during his lifetime. Beneficiaries designated by Executive may be any natural or
legal person or persons, including a fiduciary, such as a trustee or a trust or
the legal representative of an estate. Unless otherwise provided by the
beneficiary designation filed by Executive, if all of the persons so designated
die before Executive on the occurrence of a contingency not contemplated in such
beneficiary designation, then the amounts payable under this Agreement shall be
paid to Executive's estate.
9. Taxes. All payments to be made to Executive under this
Agreement will be subject to any applicable withholding of federal, state and
local income and employment taxes.
10. Miscellaneous. This Agreement shall also be subject to the
following miscellaneous considerations:
(a) Executive and the Company each represent and warrant
to the other that he or it has the authorization, power and right to deliver,
execute, and fully perform his or its obligations under this Agreement in
accordance with its terms.
(b) This Agreement contains a complete statement of all
the arrangements between the parties with respect to Executive's employment by
the Company; this Agreement supersedes all prior and existing negotiations and
agreements between the parties concerning Executive's employment; and this
Agreement can only be changed or modified pursuant to a written instrument duly
executed by each of the parties hereto.
(c) If any provision of this Agreement or any portion
thereof is declared invalid, illegal, or incapable of being enforced by any
court of competent jurisdiction, the remainder of such provisions and all of the
remaining provisions of this Agreement shall continue in full force and effect.
(d) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of North Carolina, except to the
extent governed by federal law.
(e) The Company may assign this Agreement to any direct
or indirect subsidiary or parent of the Company or joint venture in which the
Company has an interest, or any successor (whether by merger, consolidation,
purchase or otherwise) to all or substantially all of the stock, assets or
business of the Company and this Agreement shall be binding upon
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and inure to the benefit of such successors and assigns. Except as expressly
provided herein, Executive may not sell, transfer, assign, or pledge any of his
rights or interests pursuant to this Agreement.
(f) Any rights of Executive hereunder shall be in
addition to any rights Executive may otherwise have under benefit plans,
agreements, or arrangements of the Company to which he is a party or in which he
is a participant, including, but not limited to, any Company-sponsored employee
benefit plans. Provisions of this Agreement shall not in any way abrogate
Executive's rights under such other plans, agreements, or arrangements.
(g) For the purpose of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States certified or registered mail, return receipt requested, postage prepaid,
addressed to the named Executive at the address set forth below under his
signature; provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Chief Executive Officer of the
Company, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
(h) Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
(i) Failure to insist upon strict compliance with any of
the terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times.
(j) This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
11. Resolution of Disputes. Any dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration, conducted before a panel of three arbitrators in the City of
Charlotte, North Carolina in accordance with the rules of the American
Arbitration Association then in effect. The Company and Executive hereby agree
that the arbitrator will not have the authority to award punitive damages,
damages for emotional distress or any other damages that are not contractual in
nature. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Company shall be entitled to seek a
restraining order or injunction in any court of competent jurisdiction to
prevent any continuation of any violation of the provisions of Section 6, and
Executive consents that such restraining order or injunction may be granted
without the necessity
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of the Company's posting any bond except to the extent otherwise required by
applicable law. The expense of such arbitration shall be borne by the Company.
12. Attorneys' Fees. Should either party hereto or their
successors retain counsel for the purpose of enforcing, or preventing the breach
of, any provision hereof, including, but not limited to, by instituting any
action or proceeding in arbitration or a court to enforce any provision hereof
or to enjoin a breach of any provision of this Agreement, or for a declaration
of such party's rights or obligations under the Agreement, or for any other
remedy, whether in arbitration or in a court of law, then the successful party
shall be entitled to be reimbursed by the other party for all costs and expenses
incurred thereby, including, but not limited to, reasonable fees and expenses of
attorneys and expert witnesses, including costs of appeal. If such successful
party shall recover judgment in any such action or proceeding, such costs,
expenses and fees may be included in and as part of such judgment. The
successful party shall be the party who is entitled to recover his costs of
suit, whether or not the suit proceeds to final judgment. If no costs are
awarded, the successful party shall be determined by the arbitrator or court, as
the case may be.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE:
Xxxxxx X. Xxxxxxxxxxxxxxx
By: /s/ XXXXXX X. XXXXXXXXXXXXXXX
-------------------------------
Date: 4/11/2001
Title: Senior Vice President Corporate
Development and Strategic Planning
COMPANY:
Personnel Group of America, Inc.
By: /s/ XXXXX X. XXXXXXXXX
-----------------------
Date: 4/11/2001
Title: Chief Executive Officer
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