EMPLOYMENT AGREEMENT
AGREEMENT made as of the ___ day of June, 2005 by and between E. Xxxxx
Xxxxxx, residing at ________________ (hereinafter referred to as the "Employee")
and RS STAFFING SERVICES, INC., a Georgia corporation with principal offices
located at 000 Xxxxx Xxxxx, Xxxxxx, XX 00000 (hereinafter referred to as the
"Company").
W I T N E S S E T H :
WHEREAS, the Company is engaged in the business of contract staffing
and specializes in administrative, professional, medical, technical and
consulting staffing, including staffing provided to the United States General
Administrative Services department and the Department of Veterans
Administration;
WHEREAS, pursuant to the terms of a Stock Purchase Agreement dated as
of May 26, 2005 (the "Acquisition Agreement"), by and among the Company, the
shareholders of the Company named therein and TeamStaff, Inc., a New Jersey
corporation ("TeamStaff"), all of the outstanding capital stock of the Company
has been acquired by TeamStaff;
WHEREAS, it is a condition to the Acquisition Agreement that the
Company and the Employee enter into this Agreement and that the Company continue
to employ the Employee for the purpose of securing for the Company the
experience, ability and services of the Employee; and
WHEREAS, the Employee desires to be employed with the Company, pursuant
to the terms and conditions herein set forth.
NOW, THEREFORE, it is mutually agreed by and between the parties hereto
as follows:
ARTICLE I
EMPLOYMENT/DUTIES
1.1 Subject to and upon the terms and conditions of this Agreement, the
Company hereby employs the Employee, and the Employee hereby accepts such
employment in his capacity as a Vice President of the Company.
1.2 The Employee shall, during the term of his employment with the
Company, and subject to the direction and control of the Chairman of the Company
and the Chief Executive Officer of Teamstaff ("Executive Management"), perform
such duties and functions as he may be
called upon to perform during the term of this Agreement.
1.3 The Employee agrees to devote his full business time to the
performance of his duties for the Company. It shall not be a violation of this
Agreement for the Employee to (i) serve on corporate, civil or charitable boards
or committees and (ii) manage personal investment so long as such activities do
not significantly interfere with the performance of the Employee's duties in
accordance with this Agreement.
1.4 The Employee shall perform, in conjunction with the Company's
Executive Management, to the best of his ability the following services and
duties for the Company and its subsidiary corporations (by way of example, and
not by way of limitation):
(i) Those duties attendant to the position with the Company for
which he is hired;
(ii) Establish and implement current and long range objectives,
plans, and policies, subject to the approval of the Executive
Management;
(iii) Promotion of the relationships of the Company and its
subsidiaries with their respective employees, customers,
suppliers and others in the business community.
1.5 Employee shall be based in the Decatur, Georgia and shall undertake
such occasional travel, within or without the United States as is or may be
reasonably necessary in the interests of the Company and the performance of his
duties.
ARTICLE II
COMPENSATION
2.1 Commencing the date hereof and during the term hereof, Employee
shall be compensated at the rate of $150,000 per annum, (the "Base Salary"),
which shall be paid to Employee as in accordance with the Company's regular
payroll periods.
2.2 Employee may be entitled to receive a discretionary bonus (the
"Bonus") in accordance with the determination of the Company's Board of
Directors
2.3 The Company shall deduct from Employee's compensation all federal,
state, and local taxes which it may now or may hereafter be required to deduct.
ARTICLE III
BENEFITS
3.1 During the term hereof, the Company shall: provide Employee with
group health care and insurance benefits, any long-term disability insurance
programs and retirement programs, stock option and other incentive compensation
programs, and other fringe benefit programs as generally made available to the
Company's and TeamStaff's senior management; and reimburse the Employee, upon
presentation of appropriate vouchers, for all reasonable business expenses
incurred by the Employee on behalf of the Company in accordance with the
Company's policies.
3.2 For each year of the term hereof, Employee shall be entitled to 2
weeks paid vacation on the same basis as other senior management of the Company
and TeamStaff and any unused vacation up to the a maximum of 2 weeks will be
paid by the Company in addition to the regular salary at the annual rate in
effect during the period of this Agreement.
ARTICLE IV
NON-DISCLOSURE
4.1 The Employee shall not, at any time during the term of this
Agreement or for a period of two (2) years after the termination of his
employment hereunder, except when acting on behalf of and with the authorization
of the Company, make use of or disclose to any person, corporation, or other
entity, for any purpose whatsoever, any trade secret or other confidential
information concerning the Company's or its affiliates' business, finances,
marketing, insurance arrangements, computerized payroll and accounting business,
personnel and/or employee leasing or staffing businesses of the Company and its
affiliates, including non public information relating to any customer of the
Company or pool of temporary employees, terms of contracts, customer pricing or
any other nonpublic business information of the Company and/or its subsidiaries
learned as a consequence of Employee's employment with the Company (collectively
referred to as the "Proprietary Information"). For the purposes of this
Agreement, trade secrets and confidential information shall mean information
disclosed to the Employee or known by him as a consequence of his employment by
the Company, whether or not pursuant to this Agreement, provided however that
Employee shall have no obligation with respect to any such information which:
(i) was generally known to the public prior to the disclosure;
(ii) is or becomes publicly known through no wrongful act of the
Employee; or
(iii) is received by a third party without breach of this Agreement or
any other obligation to maintain the confidentiality of such
information;
(iv) is approved for release by written authorization of the Company.
The Employee acknowledges that trade secrets and other items of confidential
information, as they may exist from time to time, are valuable and unique assets
of the Company, and that disclosure of any such information would cause
substantial injury to the Company.
ARTICLE V
RESTRICTIVE COVENANT
5.1 In the event of the voluntary termination of employment with the
Company prior to the expiration of the term hereof, or Employee's discharge in
accordance with Article VIII, or the expiration of the term hereof without
renewal, Employee agrees that he will not, for a period of three (3) years
following such termination (or expiration, as the case may be) directly or
indirectly enter into or become associated with or engage in any other business
(whether as a partner, officer, director, shareholder, employee, consultant, or
otherwise), and such business is involved in the businesses in which the Company
is engaged in as of the date of termination, or is otherwise engaged in the same
or similar business as the Company shall be engaged, , during the tenure of
Employee's employment by the Company. Notwithstanding the foregoing, the
ownership by Employee of less than 2% percent of the shares of any publicly held
corporation shall not violate the provisions of this Article V.
5.2 In furtherance of the foregoing, Employee shall not during the
aforesaid period of non-competition, directly or indirectly, in connection with
any computerized payroll, employee leasing, or permanent or temporary personnel
business, or any business similar to the business in which the Company was
engaged, solicit any customer or employee of the Company who was a customer or
employee of the Company during the tenure of his employment.
5.3 In the event of a default pursuant to the Note (as defined in the
Acquisition Agreement dated the 26th day of May, 2005, and attached hereto, the
provisions of this Article IV shall not apply to Employee, and Employee shall be
entitled to directly or indirectly (whether as a partner, officer, director,
shareholder, employee, consultant, or otherwise) operate a business to service
any contracts which may be assigned to Employee following a default under the
Note, and Employee may solicit any customer of the Company with respect to any
contract which is assigned to Employee as a result of such default in the Note.
5.4 If any court shall hold that the duration of non-competition or any
other restriction contained in this Article is unenforceable, it is our
intention that same shall not thereby be terminated but shall be deemed amended
to delete therefrom such provision or portion adjudicated to be invalid or
unenforceable or, in the alternative, such judicially substituted term
may be substituted therefor.
ARTICLE VI
TERM
6.1 This Agreement shall be for a term of six (6) months commencing on
the date hereof unless sooner terminated as provided in Section 8 hereof (the
"Expiration Date").
ARTICLE VII
DISABILITY DURING TERM
7.1 In the event Employee becomes totally disabled so that he is unable
or prevented from performing of the essential functions of his usual duties
hereunder for a period of 3 consecutive months or 3 months within any one year
period, the Company shall have the option, in its discretion to terminate this
Agreement without further obligation hereunder.
ARTICLE VIII
TERMINATION
8.1 The Company may terminate this Agreement:
a. Upon the death of Employee during the term hereof, except
that the Employee's legal representatives, successors, assigns, and heirs shall
have those rights and interests as otherwise provided in this Agreement,
including the right to receive accrued but unpaid incentive compensation and
special bonus compensation on a pro rata basis.
b. Subject to the terms of Article VIII, upon written notice
from the Company to the Employee, if Employee becomes totally disabled and as a
result of such total disability, has been prevented from and unable to perform
all of his duties hereunder for a consecutive period of 3 months or for 3 months
in any one year period.
c. Upon written notice from the Company to the Employee, at
any time for "Cause." For purposes of this Agreement, "Cause" shall be defined
as: (i) willful disobedience by the Employee of a material and lawful
instruction of the Executive Management; (ii) conviction of the Employee of any
misdemeanor involving fraud or embezzlement or similar crime, or any felony;
(iii) breach by the Employee of any material provision of this Agreement or any
material provisions of the Company's or TeamStaff's employment manual or code of
ethics applicable to all employees; (iv) conduct amounting to fraud, dishonesty,
gross negligence or willful misconduct, recurring insubordination, inattention
to or unsatisfactory performance of
duties by Employee which adversely and materially affects the operations of the
Company, is done in bad faith and without a reasonable belief that such act or
failure to act was in the best interests of the Company; or (v) violation of any
state or federal securities or employee labor laws or regulations relating to
sexual harassment or discrimination, as determined in good faith by the Board of
Directors or a governmental entity or court of law and which adversely and
materially affects the operations of the Company, or (vi) refusal by the
Employee to comply with or cooperate with any Company internal investigation or
investigation commenced by a governmental agency; provided that the Company
shall not have the right to terminate the employment of Employee pursuant to the
foregoing clauses (i), (iii), (iv) or (v) above unless written notice specifying
such breach shall have been given to the Employee and, in the case of breach
which is capable of being cured, the Employee shall have failed to cure such
breach within 30 days after his receipt of such notice.
8.2 Employee may terminate this agreement at any time upon 10 days
notice with or without cause.
8.3 In the event of the termination of this Agreement and the discharge
of Employee by the Company in breach and violation of this Agreement, Employee
shall not be obligated to mitigate damages by seeking or obtaining alternate
employment.
8.4 In the event of the termination of this Agreement for any reason,
all rights and obligations of the parties provided herein shall immediately
cease except for those provisions contained in Articles 4 and 8.1(a) hereof.
ARTICLE IX
TERMINATION OF PRIOR AGREEMENTS
9.1 This Agreement sets forth the entire agreement between the parties
and supersedes all prior agreements between the parties concerning the subject
matter hereof, whether oral or written, prior to the effective date of this
Agreement.
ARTICLE X
ARBITRATION AND INDEMNIFICATION
10.1 Any dispute arising out of the interpretation, application, and/or
performance of this Agreement with the sole exception of any claim, breach, or
violation arising under Articles IV or V hereof shall be settled through final
and binding arbitration before a single arbitrator in Atlanta, Georgia in
accordance with the Rules of the American Arbitration Association. The
arbitrator shall be selected by the Association and shall be an attorney-at-law
experienced in the field of corporate and/or employment law. Any judgment upon
any arbitration award may be entered in any court, federal or state, having
competent jurisdiction of the parties. With respect to and dispute or claim
arising under Articles IV or V herein, the Company shall have the right to bring
suit or seek enforcement of its rights thereunder in any court of competent
jurisdiction.
10.2 The Company hereby agrees to indemnify, defend, and hold harmless
the Employee for any and all claims arising from or related to his employment by
the Company at any time asserted, at any place asserted, to the fullest extent
legally permitted or authorized by the Company's Articles of incorporation or
Bylaws or resolutions of the Company's Board of Directors or, if greater, by the
laws of the State of Georgia against all cost, expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, ERISA excise
taxes or other liabilities or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by the Employee in connection
therewith . The Company shall maintain such insurance as is necessary and
reasonable to protect the Employee from any and all claims arising from or in
connection with his employment by the Company, provided such insurance can be
obtained without unreasonable expense.
ARTICLE XI
SEVERABILITY
11.1 If any provision of this Agreement shall be held invalid and
unenforceable, the remainder of this Agreement shall remain in full force and
effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it shall remain in full force and effect in all other
circumstances.
ARTICLE XII
NOTICE
12.1 All notices required to be given under the terms of this Agreement
shall be in writing and shall be deemed to have been duly given only if
delivered to the addressee either (i) in person, or (ii) mailed by United States
Postal certified mail, return receipt requested, or (iii) by overnight courier
service as follows:
IF TO THE COMPANY:
RS Staffing Services, Inc.
c/o 000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Chairman
IF TO THE EMPLOYEE:
E. Xxxxx Xxxxxx
or to any such other address as the party to receive the notice shall advise by
due notice given in accordance with this paragraph. Notice shall be effective
either when received under clauses (i) or (iii) or five (5) days after delivery
by certified mail.
ARTICLE XIII
MISCELLANEOUS
13.1 This Agreement shall inure to, and shall be binding upon, the
parties hereto, the successors and assigns of the Company, and the heirs and
personal representatives of the Employee.
13.2. The waiver by either party of any breach or violation of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of construction and validity.
13.3. This Agreement has been negotiated and executed in the State of
Georgia and the laws of the State of Georgia shall govern its construction and
validity.
13.4 This Agreement contains the entire agreement between the parties
hereto regarding the subject matter hereof. No change, addition, or amendment
shall be made hereto, except by written agreement signed by the parties hereto.
13.5 Each of the Company and Employee has been represented by their own
separate counsel. Employee hereby expressly acknowledges that he has been
advised that he has not been represented by the Company's counsel in this matter
and has been advised and urged to seek
separate legal counsel for advice in this matter.
13.6. This Agreement may be executed in several counterparts and all so
executed shall constitute one Agreement, binding on all the parties hereto even
though all the parties are not signatories to the original or the same
counterpart.
13.7. If any provision of this Agreement, or the application of such
provision to any person or circumstance, shall be held invalid, the remainder of
this Agreement, or the application of such provision to persons or circumstances
other than those as to which it is held invalid, shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
affixed their signatures effective the day and year first above written.
RS STAFFING SERVICES, INC.
By:___________________________________
Name:
Title:
EMPLOYEE
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E Xxxxx Xxxxxx
