EXHIBIT 10.13
EMPLOYMENT AND NON-COMPETITION AGREEMENT
This Employment and Non-Competition Agreement (the "Agreement") is
entered into on August 9, 2002, by and between Xxxxxxx X. Xxxxx, an individual
("Executive"), and Xxxx, Xxxxxx & Associates, Inc., a Delaware corporation (the
"Company").
RECITALS
WHEREAS, Executive has been the President and Chief Operating Officer
of OnStaff, a California corporation ("OnStaff"), Xxxxxxxxxxxx.xxx, a California
corporation ("Boardnetwork"), and Healthcare Staffing Resources, Inc., a
California corporation ("Healthcare," and collectively, with OnStaff and
Boardnetwork, "Prior Employers"), and has made numerous and invaluable
contributions to the leadership and management of Prior Employers;
WHEREAS, the Company is entering into an Asset Purchase Agreement (the
"Purchase Agreement") of even date herewith to acquire all, or substantially
all, of the assets of each of the Prior Employers;
WHEREAS, the Company desires to secure the services of Executive as
its Executive Vice President, reporting to the Chief Executive Officer of the
Company, and Executive desires to perform such services for the Company, on the
terms and conditions set forth herein;
WHEREAS, the Company, the Prior Employers and each of their respective
Affiliates are in the business of sourcing and delivering human capital and
providing temporary staff and personnel (the "Business");
WHEREAS, the Company and its Affiliates (as defined herein) engage in,
or intend to engage in, the Business throughout the world;
WHEREAS, if Executive were to compete with the Company or any of its
Affiliates' operation of the Business anywhere in the world, the Company would
be deprived of the full benefit of any reputation or goodwill associated with
the Prior Employers, as the Prior Employers may exist on and after the date
hereof;
WHEREAS, Executive shall execute and deliver this Agreement
concurrently with the execution and delivery of the Purchase Agreement and the
closing of the transactions contemplated thereby; and
WHEREAS, the covenants provided herein are material, significant and
essential to effecting the transactions contemplated by the Purchase Agreement,
and good and valuable consideration under the Purchase Agreement has been
transferred to Executive in exchange for such covenants and the goodwill
associated with the Prior Employers;
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises of the parties and the mutual benefits they will gain by the
performance thereof, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties do hereby agree as
follows:
1. Employment by the Company and Term.
(a) Term of Employment. The Company agrees to employ Executive as its
Executive Vice President, reporting to the Chief Executive Officer of the
Company, and Executive hereby accepts such employment, subject to the terms and
conditions set forth herein. Subject to Section 5 hereof, the term of employment
of Executive under this Agreement shall begin as of the date hereof and end on
the fifth anniversary of the date hereof, unless the employment of Executive is
terminated earlier pursuant to Section 5 hereof (such period when this Agreement
is in effect being referred to herein as the "Term"). Notwithstanding the
foregoing, the provisions of Sections 6 [Non-Competition], 7 [Proprietary
Information Obligations] and 8 [Noninterference] shall survive the termination
of this Agreement.
(b) Duties. Executive shall serve in an executive capacity at the
Company and/or its Affiliates and shall perform such duties as are consistent
with his position as set forth in sub-Section (a) above and as may be required
by the Board of Directors of the Company. Such duties shall include, without
limitation, the objectives and expectations set forth in the job description
attached hereto as Exhibit A. During the term of his employment with the
Company, Executive agrees that he shall devote all of his business time and best
efforts solely and exclusively to the performance of his duties hereunder and to
the business and affairs of the Company, whether such business is operated
directly by the Company or through one or more Affiliates of the Company.
Notwithstanding the immediately preceding sentence, Executive may engage in
managing his equity securities and similar passive investments so long as such
activities do not interfere with the performance of his duties hereunder. For
purposes of this Agreement, "Affiliate" means, with respect to any specified
person or entity, any other person or entity that directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, such specified person or entity. Executive agrees that if
he is elected or appointed a director or an officer of any subsidiary or
Affiliate of the Company for any period during his employment by the Company
consistent with his duties and responsibilities as set forth in this Section 1
and Exhibit A, Executive will serve in such capacities without compensation in
addition to that specified in this Agreement.
(c) Company Policies. The employment relationship between the parties
shall be governed by the general employment policies and practices of the
Company; provided, however, that when the terms of this Agreement differ from or
are in conflict with the Company's general employment policies or practices,
this Agreement shall control.
2. Compensation and Benefits.
(a) Salary. Executive shall receive for his services rendered
hereunder (i) a one-time signing bonus of Fifty Thousand Dollars ($50,000)
payable upon the mutual execution of this Agreement (the "Signing Bonus"), and
(ii) an annual base salary of Three Hundred Fifteen
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Thousand Dollars ($315,000) (the "Base Salary") payable in accordance with the
Company's payroll practices in effect from time to time during the Term, subject
to standard withholdings for taxes and social security and the like. Executive's
Base Salary shall be reviewed annually by the Board of Directors of the Company
for the purpose of considering increases thereof. In conducting this review, the
Board of Directors of the Company shall consider appropriate factors, including,
without limitation, Executive's performance, the Company's financial condition
and compensation afforded to senior executives of comparable corporations. The
Base Salary shall not be decreased without the written consent of Executive,
unless the base salaries of the Company's other senior executives are reduced by
the same percentage.
(b) Stock Options. In recognition of Executive's agreement to serve as
Executive Vice President, on the date hereof, the Company will grant to
Executive nonqualified stock options (the "Options") to acquire two hundred and
fifty thousand (250,000) shares of the Company's Common Stock (the "Option
Shares"), subject to the terms and conditions set forth in this Section 2(b).
The Options will vest as to one-quarter (1/4) of the Option Shares on the first
anniversary date of the date hereof and in equal monthly installments over the
following thirty six (36) months so that all Option Shares are fully vested by
the fourth anniversary of the date hereof, provided that Executive is employed
by the Company on each such vesting date. The Options will be issued pursuant to
and will be subject to the terms and conditions of the Company's 1997 Stock
Option Plan, as amended from time to time (the "Option Plan"), and the stock
option agreement executed thereunder. The exercise price of the Options will be
the fair market value of a share of the Company's Common Stock on the date of
grant determined in accordance with the provisions of the Option Plan. If, upon
the termination of Executive's employment, any portion of the Options is not yet
vested or exercised, such portion of the Options shall terminate and shall not
become vested or exercisable pursuant to the terms and conditions of the Plan;
provided, however, that if Executive's employment is terminated either by the
Company without "cause" (as defined in Section 5(e)(2) hereof) or by Executive
for "good reason" (as defined in Section 5(d) hereof) or upon a Change of
Control, then all unvested Options shall immediately vest and shall be
exercisable pursuant to the terms and conditions of the Option Plan. For
purposes of this Agreement, "Change of Control" shall be mean the consummation
of any one of the following events: (i) a sale of all or substantially all of
the assets of the Company; (ii) a merger or consolidation in which the Company
is not the surviving corporation (other than a transaction the principal purpose
of which is to change the state of the Company's incorporation or a transaction
in which the voting securities of the Company are exchanged for beneficial
ownership of at least a majority of the voting securities of the acquiring
corporation); (iii) a merger or consolidation in which the Company is the
surviving corporation and less than fifty percent (50%) of the voting securities
of the Company that are outstanding immediately after the consummation of such
transaction are beneficially owned, directly or indirectly, by the persons who
owned such voting securities immediately prior to such transaction, or (iv) any
transaction or series of related transactions after which any person (as such
term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended), other than any employee benefit plan (or related trust) sponsored or
maintained by the Company or any Affiliate, becomes the beneficial owner of
voting securities of the Company representing a majority of the combined voting
power of all of the voting securities of the Company. For purposes of this
definition, any person who acquired securities of the Company prior to the
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occurrence of the specified transaction in contemplation of such transaction and
who immediately after such transaction possesses direct or indirect beneficial
ownership of at least ten percent (10%) of the securities of the Company or the
surviving corporation, as appropriate, (or if the Company or the surviving
corporation is a controlled affiliate, then of the appropriate entity as
determined above) shall not be included in the calculation of the group of
persons who owned such voting securities immediately prior to such transaction.
(c) Benefits. During the Term, Executive shall be entitled to
participate in any group insurance, hospitalization, medical, dental, health and
accident, disability or similar plan or program of the Company now existing or
established hereafter to the extent that he is eligible under the general
provisions thereof. Notwithstanding the foregoing, Executive shall only be
entitled to participate in any such plan or program if executive officers of the
Company are generally eligible to participate in such plan or program. The
Company may, in its sole discretion and from time to time, establish additional
senior management benefit programs as it deems appropriate. Executive
understands that any such plans may be modified or eliminated in the discretion
of the Company in accordance with applicable law. In addition, the Company shall
provide the following benefits to Executive:
(1) Life insurance for $1,000,000 with an insurance carrier and
terms mutually agreed upon by the parties; and
(2) Automobile allowance for the lease of an automobile selected
by Executive for his use with a purchase price not to exceed
$100,000.
(d) Vacation. Executive shall be entitled to a period of annual paid
vacation time equal to not less than four (4) weeks per year and sick leave in
accordance with the Company's policy applicable to employees at a similar level
in effect during the Term. The days selected for Executive's vacation shall be
mutually agreeable to the Company and Executive. Executive's eligibility to
carryover or to be paid for any portion of his vacation and sick leave shall be
subject to the Company policy applicable to employees at a similar level in
effect during the Term.
(e) Key Man Life Insurance. Executive shall take such actions as may
be reasonably necessary or appropriate to permit the Company to obtain a key man
life insurance policy insuring Executive and naming the Company as beneficiary.
(f) Expenses. Subject to compliance with the Company's normal and
customary policies regarding substantiation and verification of business
expenses, Executive is authorized to incur on behalf of the Company, and the
Company shall directly pay or shall fully reimburse Executive for, all customary
and reasonable expenses incurred for promoting, pursuing or otherwise furthering
the business of the Company and its Affiliates.
3. Bonus Plans.
(a) In addition to the salary provided by Section 2(a), Executive will
participate in the Company's Bonus Plan for similarly situated executive
employees of the
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Company, pursuant to which Executive shall be eligible to receive additional
incentive compensation on an annual basis. The parties hereto agree that any
such bonus (the "Performance Bonus") shall be adjusted based upon quantitative
budgets, targets and Executive's performance towards achieving those goals and
targets as established annually by the Board of Directors or Compensation
Committee of the Board of Directors.
(b) Should Executive's employment (other than a termination by the
Company or a voluntary termination) terminate prior to the end of the Company's
fiscal year, Executive's Performance Bonus based upon objective criteria rather
than discretionary evaluations, if any, for that fiscal year, shall be prorated
based on the portion of the fiscal year prior to the termination.
4. Reasonable Support. Executive shall be furnished reasonable office
space, assistance and facilities. Within the budgets established by the Chief
Executive Officer or the Board of Directors of the Company, Executive shall have
the ability to hire personnel in order to assist Executive with the performance
of his duties hereunder.
5. Termination of Employment.
(a) Termination Upon Death. If Executive dies prior to the expiration
of the Term, the Company shall pay to Executive's estate, or other designated
beneficiary(s) as shown in the records of the Company, any salary earned but
unpaid, reimbursement of business expenses (subject to compliance with the
Company's normal and customary policies regarding substantiation and
verification of business expenses) and benefits that Executive is then entitled
to receive under any benefit plans of the Company. The Company also will pay to
Executive's estate a pro rata portion of the Performance Bonus which would have
otherwise been earned by Executive through the Termination Date (which for
purposes of this clause (a) shall be the date of Executive's death), less
standard withholdings for tax and social security. The Company shall have no
obligation to make any other payment, including severance or other compensation,
of any kind. All other benefits provided by the Company to Executive under this
Agreement, including the benefits set forth in Section 2(c)(1) and (2) hereof,
or otherwise shall cease as of the Termination Date.
(b) Termination Upon Disability. The Company may terminate Executive's
employment in the event Executive suffers a disability that renders Executive
unable, as determined in good faith by the Board of Directors of the Company, to
perform the essential functions of his position, even after reasonable
accommodation, for six (6) months within any twelve (12) month period (a
"Disability"). If Executive disputes the existence of a Disability, within
thirty (30) days of written notice of the dispute to the Chief Executive Officer
of the Company, each party shall select a licensed medical practitioner with at
least ten (10) years in practice and certified in the specialty applicable to
the alleged Disability. The two (2) medical practitioners shall jointly select
an independent third medical practitioner within thirty (30) days of their
selection and the three (3) medical practitioners shall jointly determine if
Executive has suffered a Disability. The decision of the medical practitioners
shall be conclusive and binding upon the parties. In the event that Executive's
employment is terminated pursuant to this Section 5(b), Executive shall receive
payment for any earned and unpaid Base Salary, reimbursement of business expense
(subject to compliance with the Company's normal and
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customary policies regarding substantiation and verification of business
expenses) and benefits that Executive is then entitled to receive under benefit
plans of the Company. The Company also will pay to Executive a pro rata portion
of the Performance Bonus which would have otherwise been earned by Executive
through the Termination Date (which for purposes of this clause (b) shall be the
date of Executive's termination for Disability), less standard withholdings for
tax and social security purposes. After the Termination Date, no other
compensation of any kind or severance or other payment of any kind or payment in
lieu of notice shall be payable by the Company. All benefits provided under
Section 2(c) hereof (except those set forth under Section 2(c)(1) and (2)
hereof) shall be extended, at Executive's election and cost, to the extent
permitted by the Company's insurance policies and benefit plans, for six (6)
months after Executive's Termination Date, except as required by law. Except as
set forth in this sub-section, all benefits provided by the Company to Executive
under this Agreement, including the benefits set forth in Section 2(c)(1) and
(2) hereof, or otherwise shall cease as of the Termination Date.
(c) Voluntary Termination Without Good Reason. Executive may
voluntarily terminate his employment with the Company at any time upon sixty
(60) days prior written notice to the Company. The Company may accelerate the
termination of Executive's employment to a date prior to the sixtieth (60th) day
upon written notice thereof being delivered to Executive by the Company. In the
event that Executive's employment is terminated under this clause (c), Executive
shall receive payment for any earned but unpaid Base Salary, and benefits the
Executive is then entitled to receive under benefit plans of the Company, less
standard withholdings for tax and social security purposes, through the
Termination Date, which for purposes of this clause (c) shall be the earlier of
(1) the date upon which the sixty (60) days referenced above expires, (2) the
date to which the Company elects to accelerate the termination of Executive's
employment, or (3) the date upon which Executive ceases performing his duties
hereunder. The Company shall have no further obligation to pay any compensation
of any kind (including, without limitation, any Performance Bonus or portions
thereof that otherwise may have become due and payable to Executive with respect
to the year in which such Termination Date occurs) or severance payment of any
kind nor to make any payment in lieu of notice. All benefits provided by the
Company to Executive under this Agreement, including the benefits set forth in
Section 2(c)(1) and (2) hereof, or otherwise shall cease as of the Termination
Date.
(d) Voluntary Termination for Good Reason. Executive may voluntarily
terminate his employment with the Company for "good reason" at any time within
ninety (90) days after the occurrence of an event constituting "good reason" by
providing thirty (30) days prior written notice to the Company. For purposes of
this Agreement "good reason" is defined as (i) Company's material breach of this
Agreement, (ii) a material reduction of Executive's duties or authority (other
than in connection with a termination of Executive's employment in accordance
with Section 5(a), (b), (c) or (e) hereof), or (iii) a complete change in the
primary business of the Company. In the event that Executive terminates his
employment pursuant to this Section 5(d), Executive shall receive payment for
any earned but unpaid Base Salary, and benefits that the Executive is entitled
to receive under benefit plans of the Company as of the Termination Date (which
for purposes of this clause (d), shall be the date of termination of Executive's
employment), less standard withholdings for tax and social security purposes.
The Company shall also pay to Executive as severance an amount equal to three
(3) times the annual Base Salary set forth in Section 2(a) (not including the
Signing Bonus). No other compensation
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of any kind or severance or other payment of any kind or payment in lieu of
notice shall be payable by the Company after such Termination Date. All benefits
provided by the Company to Executive under this Agreement, including the
benefits set forth in Section 2(c)(1) and (2) hereof, or otherwise shall cease
as of the Termination Date.
(e) Termination for Cause.
(1) Termination; Payment of Salary. Either the Chief Executive
Officer of the Company or the Board may terminate Executive's employment with
the Company at any time for "cause" (as defined below), immediately upon written
notice to Executive of the circumstances leading to such termination for cause.
In the event that Executive's employment is terminated under this clause (e),
Executive shall receive payment for all earned but unpaid Base Salary and
benefits the Executive is then entitled to receive under benefit plans of the
Company, less standard withholdings for tax and social security purposes,
through the Termination Date, which for purposes of this clause (e) shall be the
date upon which such notice of termination is given. The Company shall have no
further obligation to pay any compensation of any kind (including, without
limitation, any Performance Bonus or portions thereof that otherwise may have
become due and payable to Executive with respect to the year in which such
Termination Date occurs, which for purposes hereof shall be the date specified
in the Company's notice) or severance payment of any kind nor to make any
payment in lieu of notice. All benefits provided by the Company to Executive
under this Agreement, including the benefits set forth in Section 2(c)(1) and
(2) hereof, or otherwise shall cease as of the Termination Date.
(2) Definition of Cause. For purposes of this Agreement, the
Company shall have "cause" to terminate Executive's employment upon any of the
following: (a) a breach by Executive of the terms of his employment, including
the duties and expectations set forth in the job description attached hereto as
Exhibit A, or of his duty not to engage in any transaction that represents,
directly or indirectly, self-dealing with the Company or any Affiliate that has
not been approved by a majority of the disinterested directors of the Board of
Directors of the Company, if in any such case such breach remains uncured after
the lapse of thirty (30) days following the date that the Company has given
Executive written notice thereof; provided, however, that if such breach
requires more than thirty (30) days to cure, Executive shall be provided with
such additional amount of time as reasonably necessary to cure such breach; (b)
any act of misappropriation, embezzlement, intentional fraud or other violation
of the law or similar conduct by Executive involving the Company or any
Affiliate; (c) the conviction or the plea of nolo contendere or the equivalent
in respect of a felony; (d) any material damage to any property of the Company
or any Affiliate caused by Executive's willful or grossly negligent conduct; (e)
the repeated non-prescription use of any controlled substance or the repeated
use of alcohol or any other non-controlled substance that the Board of Directors
reasonably determines renders Executive unfit to serve in his capacity as an
officer of the Company or its Affiliates; (f) the failure by Executive to comply
with the reasonable and lawful instructions of the Chief Executive Officer or
the Board of Directors after fifteen (15) days written notice hereof; or (g)
conduct by Executive that in the good faith determination of the Board
demonstrates gross unfitness to serve in his capacity as an officer or employee
of the Company or its Affiliates, including, without limitation, a finding by
the Board or any regulatory authority that Executive has committed acts of
substantial misconduct or dishonesty or other deliberate act or omission of
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breach of fiduciary duties as an officer of the Company or any of its Affiliates
detrimental or damaging in a significant way to the goodwill of the Company or
any of its Affiliates or materially damaging to the Company's or any of its
Affiliates' relationships with their respective clients, suppliers or employees
or employee harassment or violated a material law or regulation applicable to
the business of the Company and its Affiliates.
(f) Termination Without Cause. The Company at any time upon prior
written notice may terminate Executive without cause. In the event that
Executive's employment is terminated pursuant to this Section 5(f), Executive
shall receive payment for any earned but unpaid Base Salary, and benefits that
the Executive is entitled to receive under benefit plans of the Company as of
the Termination Date (which for purposes of this clause (f), shall be the date
of termination of Executive's employment), less standard withholdings for tax
and social security purposes. The Company shall also pay to Executive as
severance an amount equal to three (3) times the annual Base Salary set forth in
Section 2(a) (not including the Signing Bonus). No other compensation of any
kind or severance or other payment of any kind or payment in lieu of notice
shall be payable by the Company after such Termination Date. All benefits
provided by the Company to Executive under this Agreement, including the
benefits set forth in Section 2(c)(1) and (2) hereof, or otherwise shall cease
as of the Termination Date.
(f) At-Will Employment. Executive understands and agrees that
employment with the Company is at-will, which means that either Executive or the
Company may terminate this Agreement at any time with or without cause as set
forth in this Agreement. Any modification of the at-will nature of this
Agreement must be in writing and executed by Executive and the Company.
(g) Termination Does Not Affect Earnout. Neither the termination of
this Agreement nor Executive's employment hereunder shall affect the Company's
obligation to pay the Earnout if earned pursuant to the terms and conditions
contained in Section 2.07 of the Purchase Agreement.
6. Non-Competition. Executive agrees that during the Term and for the
longer of (x) a one year period following the end of the Term or (y) three (3)
years from the date hereof, he will not, directly or indirectly, own, manage,
operate, join, advise, control or otherwise engage or participate in or be
connected as an employee, consultant, independent contractor, guarantor,
creditor, agent, partner, joint venturer, officer or director of any business
which may compete against the Business within any jurisdiction in this world;
nor shall Executive acquire by reason of purchase during the term of his
employment with the Company the ownership of more than one percent (1%) of the
outstanding equity interest in any such competitive institution or entity.
7. Proprietary Information Obligations. During the term of Executive's
employment by the Company, Executive will have access to and become acquainted
with the Company's confidential and proprietary information (collectively
"Proprietary Information"), including but not limited to information or plans
regarding the Company's customer relationships; personnel; sales, marketing and
financial operations and methods; and other compilations of information, records
and specifications. Executive shall not disclose any of the Company's
Proprietary Information, directly or indirectly, to any person, firm,
corporation or
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other entity for any reason or purpose whatsoever, nor shall Executive make use
of any such Proprietary Information for his own purposes or for the benefit of
any person, firm, corporation or other entity (except the Company) under any
circumstances, during or after the Term, except as reasonably necessary in the
course of his employment for the Company or as authorized in writing by the
Company. Notwithstanding the foregoing, in the event of a dispute between the
Company and the Executive, Executive shall have the right to disclose to his
advisors and attorneys Proprietary Information relevant to the representation of
Executive's interests in such dispute. All files, records, documents,
computer-recorded or electronic information and similar items relating to the
business of the Company, whether prepared by Executive or otherwise coming into
his possession, shall remain the exclusive property of the Company and shall not
be removed from the premises of the Company under any circumstances whatsoever
without the prior written consent of the Company, except when (and only for the
period) necessary to carry out Executive's duties hereunder, and if removed
shall be immediately returned to the Company upon any termination of his
employment, and no copies thereof shall be kept by Executive.
8. Noninterference. Executive agrees that during the Term and for the
longer of (x) a one year period following the end of the Term or (y) three (3)
years from the date hereof, he agrees not to, either on his own account or for
any person, firm or company: (a) solicit or attempt to solicit, directly or
indirectly, any employee, client or customer of the Company or any Affiliate of
the Company, or (b) take any other action that may cause any such employee,
client or customer of the Company or any Affiliate of the Company to terminate
or adversely alter his, her or its relationship with the Company or such
Affiliate; provided, however, that after the Term, he may solicit or attempt to
solicit a client or customer of the Company or any Affiliate of the Company so
long as such actions do not relate to the Company's business or any business of
any Affiliate of the Company and such actions do not cause any such client or
customer of the Company or any Affiliate of the Company to terminate or
adversely alter his, her or its relationship with the Company or such Affiliate.
9. Injunctive Relief. The parties hereto agree that damages would be an
inadequate remedy for the Company in the event of a breach or threatened breach
of Sections 6, 7 or 8 of this Agreement by Executive, and in the event or any
such breach or threatened breach, the Company may, either with or without
pursuing any potential damage remedies, seek to obtain and enforce an injunction
prohibiting Executive from violating this Agreement and requiring Executive to
comply with the terms of this Agreement.
10. Separate Covenants. The noncompetition and noninterference provisions
of this Agreement shall be deemed to consist of a series of separate covenants,
one for each line of business carried on by the Company and its Affiliates and
each region included within the geographic area referred to in Section 6 hereof.
The parties expressly agree that the character, duration and geographical scope
of such provisions in this Agreement are reasonable in light of the
circumstances as they exist on the date upon which this Agreement has been
executed. However, should a determination nonetheless be made by a court of
competent jurisdiction at a later date that the character, duration or
geographical scope of such provisions is unreasonable in light of the
circumstances as they then exist, then it is the intention and the agreement of
Executive and the Company that such noncompetition and noninterference
provisions of this Agreement shall be construed by the court in such a manner as
to impose only those restrictions
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on the conduct of Executive which are reasonable in light of the circumstances
as they then exist and as are necessary to assure the Company and its Affiliates
of the intended benefits of this Agreement. If, in any judicial proceeding, a
court shall refuse to enforce all of the separate covenants deemed included
herein because, taken together they are more extensive than necessary to assure
the Company and its Affiliates of the intended benefit of such noncompetition
and noninterference provisions, it is expressly understood and agreed between
the parties hereto that those of such covenants which, if eliminated, would
permit the remaining separate covenants to be enforced in such proceeding shall,
for the purpose of such proceeding, be deemed eliminated from the provisions
hereof.
11. Executive's Representations. Executive hereby represents and warrants
to the Company that he:
(a) is not now under any obligation of a contractual or
quasi-contractual nature known to him that is inconsistent or in conflict with
this Agreement or that would prevent, limit or impair the performance by
Executive of his obligations hereunder; and
(b) has been represented by legal counsel in the preparation,
negotiation, execution and delivery of this Agreement and understands fully the
terms and provisions hereof.
12. Dispute Resolution and Binding Arbitration. Executive and the Company
agree that in the event a dispute arises concerning or relating to Executive's
employment with the Company, such dispute shall be submitted to binding
arbitration in accordance with the employment arbitration rules of Judicial
Arbitration and Mediation Services ("JAMS") by a single impartial arbitrator
selected as follows: if the Company and Executive are unable to agree upon an
impartial arbitrator within ten (10) days of a request for arbitration, the
parties shall request a panel of employment arbitrators from JAMS and
alternatively strike names until a single arbitrator remains. The arbitration
shall take place in San Francisco, California, and both Executive and the
Company agree to submit to the jurisdiction of the arbitrator selected in
accordance with JAMS' rules and procedures. Except as set forth in Section 9
hereof, Executive and the Company agree that the arbitration procedure provided
for in this section will be the exclusive avenue of redress for any disputes
relating to or arising from Executive's employment with the Company, and that
the award of the arbitrator shall be final and binding on both parties, and
nonappealable. The arbitrator shall have discretion to award monetary and other
damages, or no damages, and to fashion such other relief as the arbitrator deems
appropriate. The arbitrator shall also have discretion to award the prevailing
party reasonable costs and attorneys' fees incurred in bringing or defending an
action under this provision. THE COMPANY AND EXECUTIVE ACKNOWLEDGE AND AGREE
THAT BY AGREEING TO ARBITRATE, THEY ARE WAIVING ANY RIGHT TO BRING AN ACTION
AGAINST THE OTHER IN A COURT OF LAW, EITHER STATE OR FEDERAL, AND ARE WAIVING
THE RIGHT TO HAVE CLAIMS AND DAMAGES, IF ANY, DETERMINED BY A JURY.
13. Miscellaneous.
(a) Notices. Any notice or communication required or permitted by this
Agreement shall be deemed sufficiently given if in writing and, if delivered
personally, when it is
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delivered or, if delivered in another manner, the earlier of when it is actually
received by the party to whom it is directed or when the period set forth below
expires (whether or not it is actually received): (i) if deposited with the U.S.
Postal Service, postage prepaid, and addressed to the party to receive it as set
forth below, forty-eight (48) hours after such deposit as registered or
certified mail; or (ii) if accepted by Federal Express or a similar delivery
service in general usage for delivery to the address of the party to receive it
as set forth next below, twenty-four (24) hours after the delivery time promised
by the delivery service.
To the Company:
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Chief Executive Officer
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
To Executive:
Xxxxxxx X. Xxxxx
00000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
With a copy to:
Weinstock, Manion, Xxxxxxx, Shore & Xxxxxxx
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
or to such other address or to the attention of such other person as the
recipient party will have specified by prior written notice to the sending
party.
(b) Severability. If any term or provision (or any portion thereof) of
this Agreement is determined by a court to be invalid, illegal or incapable of
being enforced by any rule of law or public policy, all other terms and
provisions (or other portions thereof) of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any
11
term or provision (or any portion thereof) is invalid, illegal or incapable of
being enforced, this Agreement shall be deemed to be modified so as to effect
the original intent of the parties as closely as possible to the end that the
transactions contemplated hereby and the terms and provisions hereof are
fulfilled to the greatest extent possible.
(c) Entire Agreement. This document constitutes the final, complete,
and exclusive embodiment of the entire agreement and understanding between the
parties related to the subject matter hereof and supersedes and preempts any
prior or contemporaneous understandings, agreements, or representations by or
between the parties, written or oral. Without limiting the generality of the
foregoing, except as provided in this Agreement, all understandings and
agreements, written or oral, relating to the employment of Executive by the
Company, or the payment of any compensation or the provision of any benefit in
connection therewith or otherwise are hereby terminated and shall be of no
future force and effect.
(d) Counterparts. This Agreement may be executed on separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
agreement.
(e) Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive and the Company, and
their respective successors and assigns, except that Executive may not assign
any of his duties hereunder and he may not assign any of his rights hereunder
without the prior written consent of the Company. If Executive should die while
any amounts would still be payable to him hereunder if he had continued to live,
all amounts payable hereunder shall be paid in accordance with the terms of this
Agreement to Executive's estate, unless Executive has provided written notice to
the Company specifying a different beneficiary or beneficiaries (which notice(s)
may be changed from time to time at the sole discretion of Executive).
(f) Attorneys Fees. If any legal proceeding is necessary to enforce or
interpret the terms of this Agreement, or to recover damages for breach
therefore, the prevailing party shall be entitled to reasonable attorney's fees,
as well as costs and disbursements, in addition to any other relief to which he
or it may be entitled.
(g) Amendments. No amendments or other modifications to this Agreement
may be made except by a writing signed by both parties. Except for Executive's
estate under Section 5 and Section 13(e) and the Affiliates, nothing in this
Agreement, express or implied, is intended to confer upon any third person any
rights or remedies under or by reason of this Agreement.
(h) Choice of Law. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the internal law, and
not the law of conflicts, of the State of California.
(i) Further Assurances. Each of the parties hereto agrees to use all
reasonable efforts to take or cause to be taken, all appropriate actions, and to
cause to take or to be taken, all things necessary, proper or advisable under
applicable laws to effect the transactions
12
contemplated by this Agreement, including without limitation, execution and
delivery to the Company of such representations in writing as may be requested
by the Company in order for its to comply with applicable federal and state
securities laws.
(j) Fees and Expenses. Each of the parties hereto shall bear its own
fees and expenses incurred in connection with the preparation of this Agreement
and the transactions contemplated hereby.
(k) Stay of Time. In the event Executive violates the provisions of
this Agreement, the running of the time period of such provisions so violated
shall be automatically suspended upon the date of such violation and shall
resume on the date such violation permanently ceases.
(l) Benefits. If, in the sole and absolute discretion of the Board of
Directors of the Company, Executive is permitted to participate in any other
plan or agreement for eligible employees of the Company which is not
specifically referred to herein, or to receive any other employment benefits, it
is agreed that nothing contained in this Agreement shall affect the right of the
Company to terminate or modify any such plan or agreement, or other benefit in
whole or in part at any time and from time to time.
13
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date set forth above.
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
COMPANY:
Xxxx, Xxxxxx & Associates, Inc.
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name:
--------------------------------
Title:
-------------------------------
SIGNATURE PAGE TO XXXXXXX X. XXXXX
EMPLOYMENT AND NON-COMPETITION
EXHIBIT A
JOB DESCRIPTION
Executive Vice President - ("EVP") reporting directly to the Chief Executive
Officer of Xxxx, Xxxxxx & Associates, Inc. (the "Company"). The Company's
existing staffing divisions, which are limited to Corporate Professionals
(including Finance & Accounting, Legal Professionals, Insurance Professionals),
Skilled Professionals (including Real Estate Services, Banking Services,
Financial Services), Medical Professionals (including all clinical, allied
health, pharmaceutical and administrative medical personnel) except for the
existing information technology staffing division, shall report to the EVP.
Strategic responsibilities shall encompass developing and implementing growth
initiatives for the existing divisions reporting to the EVP, which may include
supervising the (i) opening and closing of offices, (ii) completing of
acquisitions and divestitures and (iii) internal development of new divisions.
Operational responsibilities shall include supervising the (i) day-to-day
operations, (ii) hiring and termination decisions, (iii) maintenance of key
client relationships and (iv) sales and marketing functions.
