EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of July 22, 1999, by and between OutSource International, Inc., a Florida
corporation (the "Company"), and Xxxxxxx Xxxxxx ("Employee").
WHEREAS, 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;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Employment. The Company hereby employs Employee, and Employee hereby
accepts employment, as Vice President and Controller the terms subject to this
Agreement.
2. Term. The term ("Term") of this Agreement shall commence on August
1, 1999, and shall continue until terminated in accordance with the terms
hereof.
3. Duties. During her employment hereunder, Employee will serve as the
Vice President and Controller. Employee shall report directly to the Chief
Financial Officer of the Company and shall serve at his direction. Employee
shall perform services as assigned by the Chief Financial Officer of the Company
consistent with the title of Vice President and Controller. Employee shall
diligently perform such duties and shall devote her entire business skill, time
and effort to her employment and her duties hereunder and shall not during the
Term, directly or indirectly, alone or as a member of a partnership, or as an
officer, director, employee or agent of any other person, firm or business
organization engage in any other business activities or pursuits requiring her
personal service that materially conflict with her duties hereunder or the
diligent performance of such duties. This shall not, however, preclude Employee
from serving on boards of directors of other corporations; provided that such
service does not conflict with the duties of Employee hereunder or result in a
conflict of interest.
4. Compensation.
a. Salary. During her employment hereunder, Employee shall be paid
an initial salary of $140,000 per year ("Base Salary"), payable in
equal installments not less than monthly. The Employee's Base Salary
shall be reviewed at least annually by the Board of Directors or any
Committee of the Board delegated the authority to review executive
compensation.
b. Bonus. In addition to Base Salary, Employee shall be entitled to
participate in the Company's Stock Option Plan, as amended and restated
(the "Stock Option Plan") and, in addition, to participate in a
Management Bonus
1
Program, beginning in calendar year 1999, to be established by the
Company with an initial targeted bonus for calendar year 1999 of 30%
for Employee, based upon the achievement of mutually agreed upon goals
and objectives (hereafter the "Management Bonus Program"). The bonus,
subject to approval by the Company Board of Directors, shall be based
on the following:
(1) 70% OSI achieving budget (2) 30% achieving your individual
goals as mutually agreed upon with the President Notwithstanding
the above, the minimum bonus for calendar year 1999 shall be
$13,000.00.
c. Insurance. During her employment hereunder, Employee shall be
entitled to participate in such health, life, disability and other
insurance programs, if any, that the Company may offer to other key
executive employees of the Company from time to time. You will be
eligible for such benefits as of August 1, 1999.
d. Other Benefits. During her employment hereunder, Employee shall
be entitled to such other benefits, if any, that the Company may offer
to other key executive employees of the Company from time to time.
e. Vacation. Employee shall be entitled to 3 weeks vacation leave
(in addition to holidays) in each calendar year during the Term, or
such additional amount as may be set forth in the vacation policy that
the Company shall establish from time to time. Except with respect to
vacation time unused as the result of a written request by the Company
to postpone a vacation, any unused vacation from one calendar year
shall not carry-over to any subsequent calendar year.
f. Expense Reimbursement. Employee shall, upon submission of
appropriate supporting documentation, be entitled to reimbursement of
reasonable out-of-pocket expenses incurred in the performance of her
duties hereunder in accordance with policies established by the
Company. Such expenses shall include, without limitation, reasonable
travel and entertainment expenses, gasoline and toll expenses and
cellular phone use charges, if such charges are directly related to the
business of the Company.
5. Grounds for Termination.
The Board of Directors of the Company may terminate this Agreement for
any reason at any time including, without limitation, for "Cause." As
used herein, "Cause" shall mean any of the following: (i) failure on
the part of Employee to disclose to Company in writing on or before the
date hereof Employee's breach of or default under any employment,
non-compete, confidentiality or other agreement between Employee and
any prior employer of Employee (including without limitation any breach
or default that might result from Employee's entering into or
performing her duties and obligations under this Agreement); (ii) an
act of willful misconduct or gross negligence by Employee in the
performance of her material duties or obligations to the Company; (iii)
indictment of Employee for a felony involving moral turpitude, whether
relating to her employment or otherwise; (iv) an act of dishonesty or
breach of trust on the part of Employee resulting or intended to result
directly or indirectly in personal gain or enrichment at the expense of
the Company; (v) conduct on the part of Employee intended to injure the
business of the Company;
2
(vi) Employee's addiction to any drug or chemical; (vii) Employee's
insubordination unless resulting from Employee's refusal to do an
illegal act; (viii) a material failure of Employee to perform or
observe the provisions of this Agreement (other than by reason of
disability as defined herein). The existence of any of the foregoing
events or conditions, except under clause (iii), shall be determined by
the Board of Directors (excluding the Employee) in the exercise of its
reasonable judgment provided that if such occurrence relates to section
(i), (vi) or (viii) above, it must persist more than (a) five (5) days
after notice is given to Employee by personal delivery or (b) ten (10)
days after a notice is given to Employee by any other means, each
notice which details the occurrence. Notwithstanding the foregoing, if
occurrence under sections (ii), (v), (vii) or (viii) cannot reasonably
be remedied within the time periods set forth, the Board of Directors
shall not exercise its right to terminate under this section if
Employee begins to remedy the occurrence within the time period and
continues actively and diligently in good faith to completely remedy
such occurrence. As used herein "insubordination" means Employee
failing to use her best efforts to comply with a written directive made
by the Company's Board of Directors for any action or inaction not
inconsistent with the duties set forth here.
6. Termination by Employee.
Employee may terminate this Agreement with Good Reason. "Good
Reason" means:
a. At any time, the Employee is required, without her written
consent, to relocate her office outside of Dade, Broward or Palm Beach
Counties;
b. The Company decreases the Employee's compensation below the
levels provided for by the terms of Section 4 (taking into account
increases made from time to time in accordance with Section 4);
c. A material breach of the provisions of this Agreement by the
Company (except those set forth in Paragraph 4.a) and Employee provides
at least 15 days prior written notice to the President and the CFO of
the Company of the existence of such breach and her intention to
terminate this Agreement (no such termination shall be effective if
such breach is cured during such period or if the Company is in good
faith attempting to cure such breach);
d. The failure of the Company to comply with the provisions of
Paragraph 4.a for an uninterrupted 10 day period;
e. The Company materially reduces the Employee's benefits under any
employee benefit plan, program or arrangement of the Company (other
than a change that affects all employees similarly situated) from the
level in effect upon the Employee's commencement or participation; or
3
f. A violation of state or federal law by the Company or its
employees that results in injury to Employee. Any payments otherwise
due under paragraphs 7(b) or 8(a), however, shall be due only after a
conclusive finding by a court of law that such a violation occurred.
7. Payment and Other Provisions Upon Termination.
a. In the event that: Employee's employment with the Company
(including its subsidiaries) is terminated by the Company for Cause as
provided in Paragraph 5; or Employee terminates her employment without
Good Reason as described in Paragraph 6; then, on or before Employee's
last day of employment with the Company:
i. Salary and Bonus Payments: The Company shall pay in a lump
sum to Employee such amount of compensation due to Employee hereunder
for services rendered to the Company, as well as compensation for
unused vacation time, as has accrued but remains unpaid. Any and all
other rights granted to Employee under this Agreement other than those
rights granted under Federal and State law, shall terminate as of the
date of termination.
ii. Noncompetition/Nonsolicitation Period. The provisions of
Paragraph 14 shall continue to apply with respect to Employee for a
period of one year following the date of termination.
b. In the event that: Employee's employment with the Company
(including its subsidiaries) is terminated by the Company for any
reason other than for Cause as provided in Paragraph 5 and other than
as a consequence of Employee's death, disability, or normal retirement
under the Company's retirement plans and practices; or Employee
terminates her employment with Good Reason as described in Paragraph 6;
then:
i. Salary and Bonus Payments: On or before Employee's last day
of employment with the Company, the Company shall pay to Employee, as
compensation for services rendered to the Company, a cash amount equal
to the sum of (x) one-half (1/2) of the amount of Employee's Base
Salary and (y) ninety percent of one-half (1/2) of the amount of the
estimated target bonus under the Management Bonus Program as in effect
immediately prior to her date of termination (the "Cash Amount"). The
final calculation of Employee's target bonus shall be made, and any
remaining bonus amount due to Employee paid, in the manner set forth in
Section 7.a.i. At the election of the Company, the Cash Amount may be
paid to Employee in periodic installments in accordance with the
regular salary payment practices of the Company, with the first such
installment to be paid on or before Employee's last day of employment
with the Company. Notwithstanding the foregoing sentence, the entire
Cash Amount shall be paid to Employee during the period not to exceed
one year following Employee's last day of employment with the Company.
No interest shall be paid with respect to any of the Cash Amount not
paid on the Employee's date of termination.
ii. Benefit Plan Coverage: The Company shall maintain in full
force and effect for Employee and her dependents for one year after the
date of termination, all life, health, accident, and disability benefit
plans and other similar employee benefit plans, programs and
4
arrangements in which Employee or her dependents were entitled to
participate immediately prior to the date of termination, in such
amounts as were in effect immediately prior to the date of termination,
provided that such continued participation is possible under the
general terms and provisions of such benefit plans, programs and
arrangements. In the event that participation in any benefit plan,
program or arrangement described above is barred, or any such benefit
plan, program or arrangement is discontinued or the benefits thereunder
materially reduced, the Company shall arrange to provide Employee and
her dependents for one year after the date of termination with benefits
substantially similar to those that they were entitled to receive under
such benefit plans, programs and arrangements immediately prior to the
date of termination. If immediately prior to the date of termination
the Company provided Employee with any club memberships, Employee will
be entitled to continue such memberships at her sole expense.
Notwithstanding any time period for continued benefits stated in this
Paragraph 7.b.ii, all benefits in this Paragraph 7.b.ii will terminate
on the date that Employee becomes an employee of another employer and
eligible to participate in the employee benefit plans of such other
employer. To the extent that Employee was required to contribute
amounts for the benefits described in this Paragraph 7.b.ii prior to
her termination, she shall continue to contribute such amounts for such
time as these benefits continue in effect after termination.
iii.[INTENTIONALLY OMITTED]
iv. Savings and Other Plans: Except as otherwise more
specifically provided herein or under the terms of the respective plans
relating to termination of employment, Employee's active participation
in any applicable savings, retirement, profit sharing or supplemental
employee retirement plans or any deferred compensation or similar plan
of the Company or any of its subsidiaries shall continue only through
the last day of her employment. All other provisions, including any
distribution and/or vested rights under such plans, shall be governed
by the terms of those respective plans.
v. Noncompetition/Nonsolicitation Period. The provisions of
Paragraph 14 shall continue, beyond the time periods set forth in such
paragraph, to apply with respect to Employee for the shorter of (x)
twelve months following the date of termination or (y) until such time
as the Company has failed to comply with the provisions of Paragraph
7.b.i and 7.b.ii for a an uninterrupted 10-day period and such failure
is not cured within 5 days after written notice of such failure is
delivered to at least two directors of the Company (other than
Employee).
c. In the event Employee's employment with the Company (including
its subsidiaries) is terminated by the Company other than for Cause as
provided in Paragraph 5 and other than as a consequence of Employee's
death, disability, or normal retirement under the Company's retirement
plans and practices, and the reason for such termination is not based
upon unsatisfactory performance by Employee of her duties hereunder as
stated in written performance evaluations or other written documents
prepared by the Company, then the following provision shall apply. This
same provision shall also apply if Employee terminates her employment
with Good Reason as described in Paragraph 6.
5
i. Exercisability of Stock Options. Notwithstanding the
vesting period provided for in the Stock Option Plan and any related
stock option agreements between the Company and Employee for stock
options ("options") and stock appreciation rights ("rights") granted
Employee by the Company, all options and stock appreciation rights
shall be immediately exercisable upon termination of employment. In
addition, Employee will have the right to exercise all options and
rights for the shorter of (x) one year following her termination of
employment or (y) with respect to each option, the remainder of the
period of exercisability under the terms of the appropriate documents
that grant such options.
d. The provisions of this Paragraph 7 shall apply if Employee's
employment is terminated prior to or more than two years after the
occurrence of a Change of Control (as defined in Paragraph 8.c). From
the occurrence of any Change of Control until the second anniversary of
such Change of Control, the provisions of Paragraph 8 shall apply in
place of this Paragraph 7, except that in the event that after a Change
of Control Employee's employment is terminated by Employee without Good
Reason or Company terminates Employee for Cause, then the provisions of
Paragraph 8 shall not apply and the provisions of Paragraph 7.a shall
apply. Termination upon death, disability and retirement are covered by
Paragraphs 9, 10, and 11, respectively.
8. Payment and Other Provisions after Change of Control.
a. Salary, Performance Award, and Bonus Payments: In the event
Employee's employment with the Company is terminated within two years
following the occurrence of a Change of Control (other than as a
consequence of her death or disability, or of her normal retirement
under the Company's retirement plans and practices) either (x) by the
Company for any reason other than for Cause or (z) by Employee with
Good Reason as provided in Paragraph 6, then Employee shall be entitled
to receive from the Company, the following:
i. Base Salary. Employee's Base Salary as in effect at the
date of termination shall be paid on the date of termination;
ii. Target Bonus. Ninety percent of the amount of the
Employee's estimated target bonus under the Management Bonus Program
for the fiscal year in which the date of termination occurs shall be
paid on the date of termination; the final calculation of Employee's
target bonus shall be made, and any remaining bonus amount due to
Employee paid, in the manner set forth in Section 7.a.i.; and
iii.[OMITTED INTENTIONALLY]
iv. Other Benefits. All benefits under Paragraphs 7.b.ii,
7.b.iv and 7.c.i shall be extended to Employee as described in such
paragraphs.
6
b. Noncompetition/Nonsolicitation Period. In the event of a
termination under Paragraph 8.a within one year after a Change of
Control the provisions of Paragraph 14 shall continue to apply as
stated in paragraph 7.b.v.
c. For purposes of this Agreement, the term "Change of Control"
shall mean:
i. The acquisition, other than from the Company, by any
individual, entity or group (within the meaning of ? 13(d)(3) or ?
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) (any of the foregoing
described in this Paragraph 8.c.i hereafter a "Person") of 33% or more
of either (a) the then outstanding shares of Capital Stock of the
Company (the "Outstanding Capital Stock") or (b) the combined voting
power of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the "Voting
Securities"), provided, however, that any acquisition by (x) the
Company or any of its subsidiaries, or any employee benefit plan (or
related trust) sponsored or maintained by the Company or any of its
subsidiaries or (y) any Person that is eligible, pursuant to Rule
13d-1(b) under the Exchange Act, to file a statement on Schedule 13G
with respect to its beneficial ownership of Voting Securities, whether
or not such Person shall have filed a statement on Schedule 13G, unless
such Person shall have filed a statement on Schedule 13D with respect
to beneficial ownership of 33% or more of the Voting Securities or (z)
any corporation with respect to which, following such acquisition, more
than 60% of, respectively, the then outstanding shares of common stock
of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the
Outstanding Capital Stock and Voting Securities immediately prior to
such acquisition in substantially the same proportion as their
ownership, immediately prior to such acquisition, of the Outstanding
Capital Stock and Voting Securities, as the case may be, shall not
constitute a Change of Control; or
ii. Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board, provided that any individual becoming a
director subsequent to the date hereof whose election or nomination for
election by the Company's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the Directors
of the Company (as such terms are used in Rule 14a-11 of Regulation
14A, or any successor section, promulgated under the Exchange Act); or
7
iii. Approval by the shareholders of the Company of a
reorganization, merger or consolidation (a "Business Combination"), in
each case, with respect to which all or substantially all holders of
the Outstanding Capital Stock and Voting Securities immediately prior
to such Business Combination do not, following such Business
Combination, beneficially own, directly or indirectly, more than 60%
of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from Business Combination; or
iv. (a) a complete liquidation or dissolution of the Company
or (b) a sale or other disposition of all or substantially all of the
assets of the Company other than to a corporation with respect to
which, following such sale or disposition, more than 60% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors is then owned
beneficially, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Capital Stock and Voting Securities
immediately prior to such sale or disposition in substantially the same
proportion as their ownership of the Outstanding Capital Stock and
Voting Securities, as the case may be, immediately prior to such sale
or disposition.
9. Termination by Reason of Death. If Employee shall die while employed
by the Company both prior to termination of employment and during the effective
term of this Agreement, all Employee's rights under this Agreement shall
terminate with the payment of that portion of Base Salary as has accrued but
remains unpaid and a prorated amount of targeted bonus under the Company's
Management Bonus Program through the month in which her death occurs, plus three
additional months of the fixed salary and targeted bonus. The calculation of
Employee's target bonus shall be made, and any bonus amount due to Employee
paid, in the manner set forth in Section 7.a.i. All benefits under Paragraphs
7.b.ii, 7.b.iv and 7.c.i shall be extended to Employee's estate as described in
such paragraphs. In addition, Employee's eligible dependents shall receive
continued benefit plan coverage under Paragraph 7.b.ii for three months from the
date of Employee's death.
10. Termination by Disability. Employee's employment hereunder may be
terminated by the Company for disability. In such event, all Employee's rights
under this Agreement shall terminate with the payment of that portion of Base
Salary as has accrued but remains unpaid as of the thirtieth (30th) day after
such notice is given except that all benefits under Paragraphs 7.b.ii, 7.b.iv
and 7.c.i shall be extended to Employee as described in such paragraphs,
provided, however, that, with respect to Paragraph 7.b.ii, the period for
continued benefit plan coverage shall be limited to six months from the date of
termination. In addition, the noncompetition and nonsolicitation provisions of
Paragraph 14 shall continue to apply to Employee for a period of six months from
the date of termination. For purposes of this Agreement, "disability" is defined
to mean that, as a result of Employee's incapacity due to physical or mental
illness:
a. Employee shall have been absent from her duties as an officer of
the Company on a substantially full-time basis for six (6) consecutive
months; and
8
b. Within thirty (30) days after the Company notifies Employee in
writing that it intends to replace her, Employee shall not have
returned to the performance of her duties as an officer of the Company
on a full-time basis.
11. Retirement. It is expected that the Compensation Committee of the
Company's Board of Directors will develop a benefit plan for retirement. It is
expected that Employee's rights upon retirement will be specifically described
in such retirement benefit plan. If retirement benefits for Employee are not
specifically described in such plan, the Company shall provide Employee upon
retirement benefits no lesser than the highest level of benefits accorded any
other retiring executive officer during the five year period immediately
preceding Employee's retirement.
12. Indemnification. If litigation shall be brought to enforce or
interpret any provision contained herein, the non-prevailing party shall
indemnify the prevailing party for reasonable attorney's fees (including those
for negotiations, trial and appeals) and disbursements incurred by the
prevailing party in such litigation, and hereby agrees to pay prejudgment
interest on any money judgment obtained by the prevailing party calculated at
the generally prevailing NationsBank of Florida, N.A. base rate of interest
charged to its commercial customers in effect from time to time from the date
that payment(s) to her should have been made under this Agreement.
13. [Intentionally Omitted]
14. Noncompetition and Nonsolicitation.
a. The nature of the system and methods employed in the Company's
business is such that Employee will be placed in a close business and
personal relationship with the customers of the Company and be privy to
confidential customer usage and rate information. Accordingly, at all
times during the term of this Agreement and for a period of one (1)
year immediately following the termination of Employee's employment
hereunder (the "Noncompetition and Nonsolicitation Period") for any
reason whatsoever, and for such additional periods as may otherwise be
set forth in this Agreement in reference to this Paragraph 14, so long
as the Company continues to carry on the same business, Employee shall
not, for any reason whatsoever, directly or indirectly, for herself or
on behalf of, or in conjunction with, any other person, persons,
company, partnership, corporation or business entity:
i. Call upon, divert, influence or solicit or attempt to call
upon, divert, influence or solicit any customer or customers of the
Company nationwide;
ii. Divulge the names and addresses or any information
concerning any customer of the Company;
iii. Disclose any information or knowledge relating to the
Company, including but not limited to, the Company's system or method
of conducting business to any person, persons, firms, corporations or
other entities unaffiliated with the Company, for any reason or purpose
whatsoever;
9
iv. Own, manage, operate, control, be employed by, participate
in or be connected in any manner with the ownership, management,
operation or control of the same, similar or related line of business
as that carried on by the Company ("Competition") within a radius of
fifty (50) miles from Employee's principal office.
b. The time period covered by the covenants contained in this
Paragraph 14 shall not include any period(s) of violation of any
covenant or any period(s) of time required for litigation to enforce
any covenant.
c. The covenants set forth in this Paragraph 14 shall be construed
as an agreement independent of any other provision in this Agreement
and existence of any potential or alleged claim or cause of action of
Employee against the Company, whether predicted on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of the covenants contained herein. An alleged or actual breach
of the Agreement by the Company shall not be a defense to enforcement
of the provisions of this Paragraph 14.
d. Employee acknowledges that she has read the foregoing and agrees
that the nature of the geographical restrictions is reasonable given
the international nature of the Company's business. In the event that
these geographical or temporal restrictions are judicially determined
to be unreasonable, the parties agree that these restrictions shall be
judicially reformed to the maximum restrictions which are reasonable.
e. Notwithstanding anything to the contrary contained herein, in the
event that Employee engages in Competition, or any conduct expressly
prohibited by this Paragraph 14 at any time during the Noncompetition
and Nonsolicitation Period for any reason whatsoever, Employee shall
not receive any of the termination benefits she otherwise would be
entitled to receive pursuant to Paragraphs 7.b., 7.c., 8.a. and 10
hereof.
15. Confidentiality.
a. Nondisclosure. Employee acknowledges and agrees that the
Confidential Information (as defined below) is a valuable, special and
unique asset of the Company's business. Accordingly, except in
connection with the performance of her duties hereunder, Employee shall
not at any time during or subsequent to the term of her employment
hereunder disclose, directly or indirectly, to any person, firm,
corporation, partnership, association or other entity any proprietary
or confidential information relating to the Company or any information
concerning the Company's financial condition or prospects, the
Company's customers, the design, development, manufacture, marketing or
sale of the Company's products or the Company's methods of operating
its business (collectively "Confidential Information"). Confidential
Information shall not include information which, at the time of
disclosure, is known or available to the general public by publication
or otherwise through no act or failure to act on the part of Employee.
10
b. Return of Confidential Information. Upon termination of
Employee's employment, for whatever reason and whether voluntary or
involuntary, or at any time at the request of the Company, Employee
shall promptly return all Confidential Information in the possession or
under the control of Employee to the Company and shall not retain any
copies or other reproductions or extracts thereof. Employee shall at
any time at the request of the Company destroy or have destroyed all
memoranda, notes, reports, and documents, whether in "hard copy" form
or as stored on magnetic or other media, and all copies and other
reproductions and extracts thereof, prepared by Employee and shall
provide the Company with a certificate that the foregoing materials
have in fact been returned or destroyed.
c. Books and Records. All books, records and accounts whether
prepared by Employee or otherwise coming into Employee's possession,
shall be the exclusive property of the Company and shall be returned
immediately to the Company upon termination of Employee's employment
hereunder or upon the Company's request at any time.
16. Injunction/Specific Performance Setoff. Employee acknowledges that
a breach of any of the provisions of Paragraphs 14 or 15 hereof would result in
immediate and irreparable injury to the Company which cannot be adequately or
reasonably compensated at law. Therefore, Employee agrees that the Company shall
be entitled, if any such breach shall occur or be threatened or attempted, to a
decree of specific performance and to a temporary and permanent injunction,
without the posting of a bond, enjoining and restraining such breach by Employee
or her agents, either directly or indirectly, and that such right to injunction
shall be cumulative to whatever other remedies for actual damages to which the
Company is entitled to pursue and prove. Employee further agrees that, except as
otherwise provided in Paragraph 13 hereof, the Company may set off against or
recoup from any amounts due under this Agreement to the extent of any losses
awarded to the Company as a result of any breach by Employee of the provisions
of Paragraphs 14 or 15 hereof.
17. Severability: Any provision in this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18. Successors: This Agreement shall be binding upon Employee and inure
to her and her estate's benefit, and shall be binding upon and inure to the
benefit of the Company and any permitted successor of the Company. Neither this
Agreement nor any rights arising hereunder may be assigned or pledged by:
Employee or anyone claiming through Employee; or by the Company, except to any
corporation which is the successor in interest to the Company by reason of a
merger, consolidation or sale of substantially all of the assets of the Company.
The foregoing sentence shall not be deemed to have any effect upon the rights of
Employee upon a Change of Control.
19. Controlling Law: This Agreement shall in all respects be governed
by, and construed in accordance with, the laws of the State of Florida.
11
20. Notices. Any notice required or permitted to be given hereunder
shall be written and sent by registered or certified mail, telecommunicated or
hand delivered at the address set forth herein or to any other address of which
notice is given:
To the Company: OutSource International, Inc.
0000 Xxxx Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: General Counsel
To Employee: Xxxxxxx Xxxxxx
0000 XX 000xx Xxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
21. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto on the subject matter hereof and may not be modified
without the written agreement of both parties hereto.
22. Waiver. A waiver by any party of any of the terms and conditions
hereof shall not be construed as a general waiver by such party.
23. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and both of which together shall constitute
a single agreement.
24. Interpretation. In the event of a conflict between the provisions
of this Agreement and any other agreement or document defining rights and duties
of Employee or the Company upon Employee's termination, the rights and duties
set forth in this Agreement shall control.
25. Certain Limitations on Remedies. Paragraph 7.b provides that
certain payments and other benefits shall be received by Employee upon the
termination of Employee by the Company other than for Cause and states that
these same provisions shall apply if Employee terminates her employment for Good
Reason. It is the intention of this Agreement that if the Company terminates
Employee other than for Cause (and other than as a consequence of Employee's
death, disability or normal retirement) or if Employee terminates her employment
with Good Reason, then the payments and other benefits set forth in Paragraph
7.b shall constitute the sole and exclusive remedies of Employee relating to her
termination of Employment; however, this provision shall not restrict Employee
from pursuing any action for personal injury or violations of Federal or State
statutes. This Paragraph 25 shall have no effect upon the provisions of
Paragraph 8 of this Agreement.
12
IN WITNESS WHEREOF, this Employment Agreement has been executed by the
parties as of the date first above written.
COMPANY:
OUTSOURCE INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxx
--- ----------------
Xxxx Xxxxxxx
Its: Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
13
