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EXHIBIT 10.109
EMPLOYMENT AGREEMENT
Employment Agreement, effective as of August 1, 2000 by and between
Staff Builders, Inc., a New York corporation ("Staff Builders" or the
"Corporation") and Xxxx Xxxx who resides at 0000 Xxxxxx Xxx., Xxxx Xxxxxxx XX,
00000 ("EMPLOYEE").
WHEREAS, Staff Builders wishes to secure the services of the EMPLOYEE
on the terms and conditions set forth below; and
WHEREAS, the EMPLOYEE represents that he has no restrictions on
employment arising out of any previous employment agreements and the EMPLOYEE is
willing to accept employment with Staff Builders on such terms and conditions.
NOW, THEREFORE, in consideration of their mutual promises and other
adequate consideration, Staff Builders and the EMPLOYEE do hereby agree as
follows:
1. EMPLOYMENT. Staff Builders will employ the EMPLOYEE as Senior Vice
President Finance, Chief Financial Officer and Treasurer in accordance with the
terms and provisions of this Agreement. In addition, EMPLOYEE has been appointed
as the Senior Vice President- Finance & Chief Financial Officer of Staff
Builders' ATC Healthcare Services, Inc. ("ATC") subsidiary.
2. DUTIES. The EMPLOYEE shall report to the President of Staff Builders
and shall be responsible for the management of all aspects of the financial
function and related responsibilities of Staff Builders. The EMPLOYEE shall
perform such other duties as shall be assigned to the EMPLOYEE by the Chairman
and/or President of Staff Builders. The EMPLOYEE shall devote his full business
time, attention and skill to the performance of his duties hereunder and to the
advancement of the business and interests of Staff Builders.
3. TERM. This Agreement shall be effective on August 1, 2000 and shall
remain in effect until July 31, 2002 unless terminated earlier pursuant to the
terms hereof.
4. COMPENSATION.
(a) Salary. The EMPLOYEE shall be paid in weekly installments
at the rate of $150,000 per annum for the period August 1, 2000 through July 31,
2001 and $160,000 per annum for the period August 1, 2001 through July 31, 2002.
(b) Benefits. The EMPLOYEE shall be eligible to receive and
participate in all health, medical or other insurance benefits which Staff
Builders provides or makes available to its employees.
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(c) Expenses. Staff Builders shall reimburse the EMPLOYEE for all
reasonable and necessary expenses upon submission by the EMPLOYEE of receipts,
accounts or such other documents reasonably requested by Staff Builders.
(e) Vacation. The EMPLOYEE shall earn fifteen (15) days vacation
each year during the term of the Agreement. (f) Car Allowance - EMPLOYEE shall
be entitled to an annual car allowance of $6,000, paid on a weekly basis.
5. TERMINATION: RIGHTS AND OBLIGATIONS UPON TERMINATION.
(a) If the EMPLOYEE dies during the Term, then the EMPLOYEE's
employment under this Agreement shall terminate. In such event, the EMPLOYEE's
estate shall be entitled only to compensation and expenses accrued and unpaid as
at the date of the EMPLOYEE's death.
(b) If, as a result of the EMPLOYEE's total incapacity due to
physical or mental illness, whether or not job related, the EMPLOYEE is absent
from his duties hereunder for 90 consecutive days, the EMPLOYEE's employment
hereunder shall terminate. In such event, the EMPLOYEE shall be entitled to
severance, payable at the then weekly base salary for a period of three (3)
months, and expenses accrued and unpaid as at the date of termination of the
EMPLOYEE's employment.
(c) The Corporation shall have the right to terminate the EMPLOYEE's
employment under this Agreement for Cause. For purposes of the Agreement, the
Corporation shall have "Cause" to terminate the EMPLOYEE's employment if (i) the
EMPLOYEE assigns, pledges, or otherwise disposes of his rights and obligations
under this Agreement, or attempts to do the same without the prior written
consent of the Corporation; or (ii) the EMPLOYEE deliberately or intentionally
fails or habitually neglects to fulfill his obligations under this Agreement
(except by reason of incapacity due to physical or mental illness or
disability), has engaged in willful misconduct or has acted in bad faith; (iii)
the EMPLOYEE has breached Section 7 of this Agreement; (iv) the EMPLOYEE has
committed a felony or other crime involving moral turpitude or perpetrated a
fraud or other dishonest acts against the Corporation; or (v) the EMPLOYEE has
engaged in deliberate or reckless acts which place the Employer's officers,
employees, customers or invitees in immediate physical danger or deliberate or
reckless acts which result in damage to or destruction of Employer's property.
If the Corporation terminates this Agreement for Cause, the Corporation's
obligations hereunder shall cease, except for the Corporation's obligation to
pay the EMPLOYEE the compensation and expenses accrued and unpaid as of the date
of termination in accordance with the provisions hereof.
(d) In the event that at any time after a Change in Control ( as
defined below) but prior to the end of six (6) months after such Change of
Control, the EMLOYEE is discharged for any reason other than for Cause (as
defined below) or resigns for any reason (other than due to termination for
Cause), the EMPLOYEE shall begin to receive within thirty (30) days after such
discharge or resignation a severance payment of six (6) months salary at the
same rate of pay in effect at the date or the Change in Control to be paid in
weekly installments for the six (6) month period following such discharge or
resignation. Notwithstanding anything contained herein to the contrary, such
severance payments shall not continue beyond the end of the term of this
Agreement. A "Change in Control" shall be deemed to occur when a
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person, corporation, partnership association or entity (x) acquires a majority
of the outstanding voting securities of Staff Builders, Inc., a Delaware
corporation ("SBLI") or (y) acquires securities bearing a majority of the voting
power with respect to election of directors of SBLI or (z) acquires
substantially all of SBLI's assets.
(e) The obligations of the Corporation and the EMPLOYEE pursuant to
this Section 5 shall survive the termination of this Agreement.
6. NOTICES. Any written notice permitted or required under this
Agreement shall be deemed sufficient when hand delivered or posted by certified
or registered mail, postage prepaid, and addressed to:
if to Staff Builders: Staff Builders, Inc.
--------------------- 0000 Xxxxxx Xxxxxx,
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attn: President
if to the EMPLOYEE: Xxxx Xxxx
--------------------------- 0000 Xxxxxx Xxxxxx,
Xxxx Xxxxxxx, Xxx Xxxx 00000
Either party may, in accordance with the provisions of this Section,
give written notice of a change of address, in which event all such notices and
requests shall thereafter be given as above provided at such changed address.
7. CONFIDENTIALITY OBLIGATIONS; NON-COMPETITION BY EMPLOYEE.
(a) The EMPLOYEE acknowledges that in the course of performing his
duties for Staff Builders, Inc. and ATC Healthcare Services, Inc., EMPLOYEE will
be made privy to confidential and proprietary information. The EMPLOYEE
covenants and agrees that during the term of this Agreement and at any time
after the termination of this Agreement, he will not directly or indirectly, for
his own account or as an employee, officer, director, partner, joint venturer,
shareholder, investor, or otherwise, disclose to others or use for his own
benefit or cause or induce others to do the same, any proprietary or
confidential information or trade secrets of Staff Builders or ATC, including
but not limited to, any matters concerning the business or operations of Staff
Builders or ATC, including its plans, procedures or methods of operations, any
lists of clients or business contacts, any information concerning specialty
programs or business development, other work product or records of Staff
Builders or ATC, other than in the performance of his duties hereunder.
(b) The EMPLOYEE agrees that, during the term hereof and for six (6)
months following the termination hereof (the "Restrictive Covenant Period"), he
will not, within the United States (A) compete, directly or indirectly, for his
own account or as an employee, officer, director, partner, joint venturer,
shareholder, investor, or otherwise, with the home health care or supplemental
staffing business conducted by Staff Builders or ATC or (B) be employed by, work
for, advise, consult with, serve or assist in any way, directly or indirectly,
any person or entity whose business is home health care or supplemental
staffing; or (C) directly or indirectly solicit, recruit or hire any employee of
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Staff Builders or ATC to leave the employ of Staff Builders or ATC; or (D)
solicit any client or customer of Staff Builders or ATC to terminate or modify
its business relationship with Staff Builders or ATC.
(c) The foregoing restrictions on the EMPLOYEE set forth in this
Section 7 shall be operative for the benefit of Staff Builders and of any
business owned or controlled by Staff Builders, ATC, or any successor or assign
of any of the foregoing.
(d) EMPLOYEE acknowledges that the restricted period of time and
geographical area specified in this Section 7 is reasonable, in view of the
nature of the business in which Staff Builders or ATC is engaged and the
EMPLOYEE's knowledge of Staff Builders' or ATC's businesses. Notwithstanding
anything herein to the contrary, if the period of time or the geographical area
specified in this Section 7 should be determined to be unreasonable in a
judicial proceeding, then the period of time and territory of the restriction
shall be reduced so that this Agreement may be enforced in such area and during
such period of time as shall be determined to be reasonable.
(e) The parties acknowledge that any breach of this Section 7 will
cause Staff Builders or ATC irreparable harm for which there is no adequate
remedy at law, and as a result of this, Staff Builders or ATC shall be entitled
to the issuance of an injunction, restraining order or other equitable relief in
favor of Staff Builders or ATC restraining EMPLOYEE from committing or
continuing any such violation. Any right to obtain an injunction, restraining
order or other equitable relief hereunder shall not be deemed a waiver of any
right to assert any other remedy Staff Builders or ATC may have at law or in
equity.
(f) For purposes of this Section 7, the term "Staff Builders" shall
refer to the Corporation and all of its parents, subsidiaries and affiliated
corporations.
8. JURISDICTION. The EMPLOYEE consents to the jurisdiction of the
Supreme Court of the State of New York or of any Federal Court in the City of
New York for a determination of any dispute as to any matters whatsoever arising
out of or in any way connected with this Agreement and authorizes the service of
process on his by registered mail sent to him at his address shown on the
records of Staff Builders.
9. HANDBOOK; GROUP INSURANCE PROGRAM BOOKLET. The EMPLOYEE acknowledges
receipt of Staff Builders Employee Handbook and Group Insurance Program booklet
(together, the "Handbook"). The terms of the Handbook are incorporated herein by
reference.
10. BINDING EFFECT. This Agreement shall bind and inure to the benefit
of Staff Builders, its successors and assigns and shall inure to the benefit of,
and be binding upon, the EMPLOYEE, his heirs, executors and legal
representatives.
11. SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall in no way affect the validity or enforceability of any
other provision, or any part thereof.
12. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
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13. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings,
negotiations, and discussions, whether oral or written, of the parties.
14. MODIFICATION, TERMINATION OR WAIVER. This Agreement may only be
amended or modified by a written instrument executed by the parties hereto. The
failure of any party at any time to require performance of any provision of this
Agreement shall in no manner affect the right of such party at a later time to
enforce the same.
IN WITNESS WHEREOF, Staff Builders and the EMPLOYEE have executed this
Employment Agreement as of the date first above written.
STAFF BUILDERS, INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Xxxxx Xxxxxxxx
President
By: /s/ Xxxx Xxxx
----------------------------------
Xxxx Xxxx
