EXHIBIT
10.53
EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement"), dated as of February
9, 1998 by and between STAFF BUILDERS INC., a New York
Corporation ("Staff Builders" or the "Corporation"), and XXXX
X. XXXXX who resides at 0000 Xxxxx Xxxxxxx Xx., Xxxxxx,
Xxxxxxxx 00000 ("Executive").
WHEREAS, Staff Builders wishes to secure the services of
the Executive on the terms and conditions set forth below;
and
WHEREAS, the Executive 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
Executive do hereby agree as follows:
1. EMPLOYMENT. Staff Builders will employ the
Executive as Executive Vice President-Finance & Chief
Financial Officer, in accordance with the terms and
provisions of this Agreement.
2. DUTIES. The Executive shall be responsible for all
financial aspects of the Corporation and its affiliates and
subsidiaries, as directed by the CEO. The Executive shall
report directly to the Chief Executive Officer of the
Corporation or such other officer of the Corporation as the
Board of Directors may from time to time designate. The
Executive 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 upon
execution by Staff Builders and the Executive, and shall
remain in effect until February 8, 2001, unless terminated
earlier pursuant to the terms hereof.
4. COMPENSATION.
Salary. The Executive shall be paid a salary of
$225,000 per annum during the term hereof,
payable in weekly installments. The Executive's
salary will be reviewed by Staff Builders on
March 1, 1999 and March 1, 2000.
Benefits. The Executive 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.
The Executive may enroll in the Staff Builders
health program effective upon the first date of
employment.
Expenses. Staff Builders shall reimburse the
Executive for all reasonable and necessary
expenses upon submission by the Executive of
receipts, accounts or such other documents
reasonably requested by Staff Builders.
Relocation Expenses. Staff Builders will
reimburse the Executive for relocation expenses
incurred during the first six (6) months of
employment directly related to the Executive's
move to the Long Island area. Reimbursable
expenses will include: packing and shipping of
household goods, Realtor fees and closing costs
related to the sale of the Executive's current
residence. The total amount of relocation
expenses to be reimbursed to the Executive will
not exceed $40,000.
(a) Car Allowance. The Executive will be paid a
car allowance of
($575) per month.
Misc. Expense. In connection with the Executive's
start of employment at Staff Builders, the
Executive will be paid a one time payment of
$18,000, on or before February 27, 1998.
Vacation. The Executive shall be entitled to three
(3) weeks of paid vacation during each twelve
(12) month period of employment during the term.
Incentive Compensations. The Executive is
entitled to participate in the TIP TOP Program.
Deferred Compensation. The Executive is entitled
to participate in the Deferred Compensation
Program as described in the plan documents.
Employee Stock Purchase Plan. The Executive is
entitled to participate in the Employee Stock
Purchase Plan as described in the plan documents.
5. TERMINATION: RIGHTS AND OBLIGATIONS UPON
TERMINATION.
If the Executive dies during the Term, then the
Executive's employment under this Agreement shall
terminate. In such event, the Executive's estate
shall be entitled only to compensation and
expenses accrued and unpaid as at the date of the
Executive's death.
(a) If, as a result of the Executive's incapacity
due to physical or mental illness, whether or not
job related, the Executive is absent from his
duties hereunder for 90 consecutive days, or an
aggregate of 120 days during the Term, the
Executive's employment hereunder and this
Agreement shall terminate. In such event, the
Executive shall be entitled only to compensation
and expenses accrued and unpaid as at the date of
termination of the Executive's employment.
(b) The Corporation shall have the right to
terminate the Executive's employment under this
Agreement for Cause. For purposes of the
Agreement, the Corporation shall have "Cause" to
terminate the Executive's employment if (i) the
Executive 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 Executive fails to fulfill his obligations
under this Agreement, has breached any of the
terms or conditions hereof, has engaged in
willful misconduct or has acted in bad faith; or
(iii) the Executive has breached Section 7 of
this Agreement; or (iv) the Executive has
committed a felony or perpetrated a fraud against
the Corporation. If the Corporation terminates
this Agreement for Cause, the Corporation's
obligations hereunder shall cease, except for the
Corporation's obligation to pay the Executive the
compensation and expenses accrued and unpaid as
of the date of termination in accordance with the
provisions hereof.
In the event that at any time after a Change of
Control (as defined below) but prior to the end
of twelve (12) months after such Change of
Control, the Executive 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 Executive shall
begin to receive within thirty (30) days after
such discharge or resignation a severance
payment equal to 2.99 times the "average annual
base salary" paid to him at the same rate of
pay in effect at the date of the Change of
Control to be paid in weekly installments for
the three (3) year period following such
discharge or resignation. For the purposes of
this Section 5, "average annual base salary"
shall mean the average of Employee"s annual
income in the nature of compensation payable by
the Company and includible in gross income over
the three most recent taxable years ending
before the Change of Control. Anything
contained herein to the contrary
notwithstanding, for a Change of Control
occurring before 2001, "average annual base
salary" shall be equal to the average salary
paid the employee as follows:
Years Considered in Calculating
Year of Change in Control Average Base Salary
1998-1999 1998
1999 1998
2000 1999
2001 2000
A "Change of Control" shall be deemed to occur
when a person, corporation, partnership,
association or entity (exclusive of the
currently contemplated reorganization) (x)
acquires a majority of the outstanding voting
securities of Staff Builders, Inc., a Delaware
corporation ("SBD") or (y) acquires securities
of the bearing a majority of voting power with
respect to election of directors of SBD or (z)
acquires all or substantially all of SBD's
assets.
Notwithstanding anything to the contrary contained
herein, all payments owed to the Executive upon
termination of this Agreement shall be subject to
offset by the Corporation for amounts owed to the
Corporation by the Executive hereunder or
otherwise.
(a) The obligations of the Corporation and the
Executive 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
Attention: Xxxxxxx Xxxxxxxx, President
or
if to the Executive:
Xxxx X. Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 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
EXECUTIVE
The Executive acknowledges that in the course of
performing his duties hereunder, he will be made privy to
confidential and proprietary information. The Executive
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
anemployee, 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, including but not limited to, any matters
concerning the business of Staff Builders.
(b) The Executive agrees that, during the term
hereof and for six (6) months following the
termination hereof, 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
(B) during the term hereof and for one (1) year
following the termination hereof directly or
indirectly solicit, recruit or hire any employee
of Staff Builders to leave the employ of Staff
Builders; or (C) solicit any client or customer
of Staff Builders to terminate or modify its
business relationship with Staff Builders.
(c) The foregoing restrictions on the Executive
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,
or any successor or assign of any of the
foregoing.
(d) Executive 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 is
engaged and the Executive's knowledge of Staff
Builders' business. 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
irreparable harm for which there is no adequate
remedy at law, and as a result of this, Staff
Builders shall be entitled to the issuance of an
injunction, restraining order or other equitable
relief in favor of Staff Builders restraining
Executive 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
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 Executive 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 him by registered mail
sent to him at his address shown on the records of Staff
Builders.
9. HANDBOOK GROUP INSURANCE PROGRAM BOOKLET. The
Executive 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. STOCK OPTIONS. The Executive will be granted stock
options to purchase 250,000 shares of Staff Builders, Inc.
(Delaware) stock, which will be issued and will vest in
accordance with the terms of an Option Agreement between the
Executive and the Corporation.
11. 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
Executive, his heirs, executors and legal representatives.
12. 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.
13. APPLICABLE LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of
New York.
14. 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.
15. 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 Executive have
executed this Employment Agreement as of the date first above
written.
STAFF BUILDERS, INC.
By: /s/Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx, CEO
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
