EXHIBIT 99.13
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of this 14th day
of April, 2003, by and between Xxxxxxx X. Xxxxxxxx, Xx. ("Executive") and
Personnel Group of America, Inc. (the "Company").
W I T N E S S E T H:
WHEREAS, the Company desires to continue to employ Executive, and
Executive desires to continue such employment, under the terms and conditions of
this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Employment. The Company hereby continues to employ Executive,
and Executive hereby accepts such continued employment, as Senior Vice
President, General Counsel and Secretary of the Company under the terms and
conditions set forth herein.
2. Duties. During the Term (as defined below), Executive shall
use his best efforts, skill and ability to perform the duties and services
customarily incident to such offices and position and such other services as may
be assigned to him from time to time by the Chief Executive Officer or Board of
Directors (the "Board") of the Company. Executive shall (i) devote his full
business time, attention and energies to the business of the Company and (ii)
faithfully and competently serve the Company and perform his duties and
responsibilities hereunder, provided, however that Executive may engage in other
activities, such as activities involving professional, charitable, educational,
religious and similar types of organizations, speaking engagements, memberships
on the boards of directors of other organizations (as the Board may from time to
time agree to, it being understood that the Board shall be deemed to have agreed
to any memberships on boards of directors of other organizations existing on the
date hereof and disclosed to the Company), and similar types of activities to
the extent that such other activities do not inhibit or prohibit the performance
of Executive's duties under this Agreement, or conflict in any material way with
the business of the Company and its subsidiaries.
3. Compensation and Related Matters. As full compensation for
Executive's performance of his duties and services hereunder during the Term,
the Company shall pay Executive the compensation and provide the benefits set
forth below:
a. Base Salary. The Company shall pay Executive an
annual salary of $240,000 ("Base Salary"), less applicable withholding and other
deductions, payable in accordance with the Company's then current payroll
practices.
b. Performance Bonus. In addition to the compensation
otherwise payable pursuant to this Agreement, Executive shall be eligible to
receive an annual performance bonus (the "Bonus"), determined by the
Compensation Committee of the Board (the "Compensation Committee") for each
fiscal year during the Term equal to 30% of Base Salary at "Target" award levels
(as defined below) and up to 60% of Base Salary at "Maximum" award levels (as
defined below). Any Bonus awarded under this Agreement to Executive shall be
determined as follows: (i) 70% of the Bonus (the "EBITDA Bonus Award") shall be
based upon the achievement of the Target EBITDA (as defined below) for such year
and (ii) 30% of the Bonus (the "Discretionary Bonus Award") shall be awarded on
the basis of other criteria, as determined by the Compensation Committee, in its
sole discretion.
For purposes of determining Executive's Bonus, "Target" shall mean (i)
with respect to the EBITDA Bonus Award, achievement of the annual target
earnings before interest, taxes, depreciation and amortization of the Company
("Target EBITDA") established by the Compensation Committee in its sole
discretion, and (ii) with respect to the Discretionary Bonus Award, achievement
of other criteria as determined by the Compensation Committee in its sole
discretion. For the purposes of determining Executive's Bonus, "Maximum" shall
mean (i) with respect to the EBITDA Bonus Award, 140% of Target EBITDA, and (ii)
with respect to the Discretionary Bonus Award, achievement of other criteria as
determined by the Compensation Committee in its sole discretion.
In addition, with respect to the EBITDA Bonus Award, Executive shall be
entitled to earn an EBITDA Bonus Award if the Company achieves at least 90% of
Target EBITDA; provided, that Executive shall not be entitled to any EBITDA
Bonus Award unless the Company achieves at least 90% of Target EBITDA. If the
Company achieves between (and including) 90% of Target EBITDA and 100% of Target
EBITDA, Executive shall be entitled to an EBITDA Bonus Award equal to 1.909%
(70% of 2.727%) of Executive's Base Salary for each 1% above 89% of Target
EBITDA that is achieved. For example, if 92% of Target EBITDA is achieved,
Executive shall be entitled to an EBITDA Bonus Award equal to 5.727% of Base
Salary, calculated as follows:
Total Bonus potential sharing above 89% per point 2.727%
EBITDA Bonus Award percentage of Total Bonus X 70%
-----
EBITDA Bonus Award per point over 89% of Target 1.909%
Points over 89% of Target EBITDA X 3
---
EBITDA Bonus Award at 92% of Target 5.727%
======
If more than 100% but less than 140% of Target EBITDA is achieved,
Executive shall be entitled to an EBITDA Bonus Award equal to (i) 21% of Base
Salary, plus (ii) 0.525% (70% of 0.75%) of Executive's Base Salary for each 1%
above 100% of Target EBITDA that is achieved. In no event shall the total amount
of EBITDA Bonus Award exceed 42% of Executive's Base Salary.
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For the fiscal year ended December 28, 2003, the Target EBITDA shall be
set at $20.7 million. For the remaining Term, the Target EBITDA for any fiscal
year shall be set during the first quarter of that year by the Compensation
Committee in its sole discretion.
c. Stock Options. Executive shall be eligible to be
granted stock options pursuant to the 2003 Equity Incentive Plan of Personnel
Group of America, Inc. (the "2003 Equity Plan") during the Term. The Company
hereby agrees that on the Effective Date, Executive shall be granted a stock
option to purchase 1,200,000 shares of the Company's common stock for an
exercise price of $0.3121 per share and a stock option to purchase 400,000
shares of the Company's common stock for an exercise price of $0.4681 per share.
Notwithstanding any other provision of the 2003 Equity Plan to the contrary, the
stock options granted to Executive hereunder shall vest on a monthly basis pro
rata over four years, at the end of each month which begins after the date of
grant of the respective option, provided, that Executive is still employed by
the Company on the applicable vesting date; and provided, further, that (i) if
Executive's employment hereunder is terminated by the Company without Cause (as
defined below) prior to the first anniversary of the option grant date, then 25%
of the total number of options Executive is granted as of the Effective Date
shall become vested, and (ii) if Executive's employment hereunder is terminated
by the Company without Cause (as defined below), the exercise period with
respect to any options granted to Executive under the 2003 Equity Plan or
otherwise and then held by Executive and which are then vested shall be extended
for a period of one (1) year following the date of such termination (but in no
event beyond the original expiration date of the respective option).
d. Other Benefits. During the Term, Executive shall be
eligible to participate in the benefits that the Company generally provides to
its similarly situated senior executive employees, such as medical, life and
long-term disability insurance and retirement benefits, upon the same terms and
conditions that the Company generally makes such benefits available to its
similarly situated senior executive employees and Executive shall be entitled to
receive such other fringe benefits as may be granted to him from time to time by
the Company.
e. Vacation. During the Term, Executive shall be allowed
26 days of paid vacation per calendar year, which shall be accrued in accordance
with the Company's vacation policies.
4. Expenses. During the Term, the Company shall reimburse
Executive for documented reasonable and necessary business expenses incurred on
the Company's behalf in performing Executive's duties and promoting the business
of the Company, including reasonable entertainment expenses, travel and lodging
expenses in accordance with the Company's business expense reimbursement
policies.
5. Term. The term of this Agreement shall commence on April 14,
2003 (the "Effective Date") and shall continue until the second anniversary
thereof (the "Initial Term"), unless earlier terminated pursuant to the
provisions of Paragraph 6. Upon the expiration of the Initial Term, this
Agreement shall automatically extend for successive one (1) year extension
periods (subject to the provisions of Paragraph 6), unless terminated by either
party by written notice to that effect not less than three (3) months prior to
the expiration of the Initial Term or
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the then effective extension period, as the case may be. The Initial Term and
any extension periods are referred to herein collectively as the "Term."
6. Termination. Executive's employment hereunder shall terminate
prior to the expiration of the Term on the earlier to occur of any of the
following events:
a. Termination in Event of Disability. By the Company
immediately upon Executive's death or upon ten (10) days' prior written notice
from the Company to Executive after a determination of Disability by the Board
or a physician's certification of Disability of Executive as hereinafter
described. For purposes of this Agreement, "Disability" shall mean the
incapacity of Executive, by reason of a mental or physical disability to perform
his material duties hereunder, for a period of 120 consecutive days or 180
non-consecutive days during any twelve (12) month-period, as reasonably
determined by the Board or as certified by a qualified physician selected by the
Board, which certification may be made before the expiration of such 120
consecutive days or 180 non-consecutive days on the basis of such physician's
determination of Executive's incapacity.
b. Termination For Cause. By the Company for Cause,
immediately upon the Company's delivery of written notice of termination to
Executive. For purposes of this Agreement, "Cause" shall mean:
(i) Executive's commission of an act
constituting a breach of fiduciary duty, gross negligence or
willful misconduct;
(ii) Executive's engagement in conduct which
violates the Company's then existing internal policies or
procedures and which is detrimental to the business,
reputation, character or standing of the Company or any of its
affiliates;
(iii) Executive's commission of an act of fraud,
dishonesty or misrepresentation that is detrimental to the
business, reputation, character or standing of the Company or
any of its affiliates;
(iv) Executive's commission of an act
constituting a misdemeanor involving moral turpitude or a
felony under the laws of the United States or any state or
political subdivision thereof;
(v) Executive's engagement in a conflict of
interest or self-dealing with respect to the Company that is
not approved in advance by the Board or a committee thereof;
or
(vi) after notice by the Company and a reasonable
opportunity to cure, Executive's material breach of his
obligations as set forth in this Agreement or his material
failure to satisfactorily perform his duties and
responsibilities hereunder.
c. Termination For Good Reason. By Executive for Good
Reason and upon at least sixty (60) days' prior written notice of termination to
the Company. For purposes of this
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Agreement, "Good Reason" shall mean, without the express written consent of
Executive, the occurrence of any of the following:
(i) a material breach by the Company of any
material provision of this Agreement, including the assignment
to Executive of any duties inconsistent in any material
respect with Executive's position in the Company or a material
adverse alteration in the nature or status of Executive's
responsibilities; or
(ii) the Company's requiring Executive to be
based anywhere other than within 50 miles of where he
currently works and resides;
provided, however, that in the event of a breach or circumstance pursuant to
clauses (i) or (ii) above, Good Reason shall not exist unless Executive provides
written notice to the Company of his intention to terminate this Agreement,
which notice shall identify in reasonable detail the basis therefor and be
delivered within thirty (30) days after the event or circumstances providing
such basis and the Company shall fail to cure such condition within thirty (30)
days following the delivery of the written notice, provided, further that if
such events cannot be reasonably cured within thirty (30) days and the Company
commences reasonable steps within said thirty (30) day period to cure such
breach and diligently continues such steps thereafter, the cure period shall be
extended for an additional thirty (30) day period.
d. Termination Without Cause. At any time by the
Company, without Cause or for any reason, upon at least three (3) months' prior
written notice of termination to Executive.
e. Termination Without Good Reason. At any time by
Executive, without Good Reason or for any reason, upon at least three (3)
months' prior written notice of termination to the Company.
7. a. Compensation Upon Termination for Cause and Certain Other
Events. In the event that Executive's employment is terminated pursuant to
Paragraphs 6(b) or 6(e) above, he will not be entitled to any compensation other
than: (i) any accrued but unpaid Base Salary, (ii) any reimbursement owed to him
by the Company in accordance with Paragraph 4 and (iii) any other or additional
benefits in accordance with the plans and programs of the Company referred to in
Paragraph 3(d); in each case only through the date of termination of Executive's
employment hereunder. All payments required to be made by the Company to
Executive pursuant to this Paragraph 7(a) shall be paid on a regular basis in
accordance with the Company's normal payroll procedures and policies and subject
to withholding and deductions pursuant to Paragraph 11.
x. Xxxxxxxxx Upon Certain Events of Termination. In the event
that Executive's employment is terminated pursuant to Paragraphs 6(c) or 6(d)
above, in addition to, but not in duplication of, the benefits set forth in
Paragraph 7(a), Executive shall be entitled to receive, (i) for a period of one
(1) year commencing on the effective date of such termination, Executive's Base
Salary, at the rate as then in effect, and (ii) a prorated bonus for the fiscal
year in which the effective date of termination occurs, such prorated bonus
award to be determined by multiplying (x) the EBITDA Bonus Award for such fiscal
year as determined in accordance with Section 3(b) by (y) a fraction the
numerator of which is the number of days in the fiscal year of
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termination that precede the effective date of termination and the denominator
of which is the total number of days in such fiscal year, payable in each case
of clauses (i) and (ii) above in accordance with the Company's regular payroll
and executive bonus payment procedures, as applicable, and subject to
Executive's execution of a release, in a form satisfactory to the Compensation
Committee, and continued compliance with the terms of Paragraph 8 hereunder.
Executive shall not be entitled to receive any other severance or other
compensation or payments, including any Bonus which has not been paid as of the
termination date other than the Bonus provided for in clause (i) or (ii) of the
preceding sentence, by reason of the termination of Executive's employment. The
refusal of the Company to extend the employment of Executive beyond the Initial
Term or any renewal thereof (other than for Cause, or Executive's death or
Disability) pursuant to Paragraph 5 shall be deemed a termination by the Company
without Cause for purposes of determining severance pursuant to this Paragraph
7(b). In addition, for a period of twelve (12) months following termination of
Executive's employment, Executive and his spouse and dependents shall be
entitled to continue to be covered by all group medical insurance arrangements
in which Executive was a participant as of the date of such termination, at the
same coverage level and on the same terms and conditions which apply to then
active employees of the Company, until Executive commences a new employment or
otherwise obtains coverage under another group medical plan, which coverage does
not contain any pre-existing condition exclusions or limitations. At the
termination of the benefits coverage under the preceding sentence, Executive and
his spouse and dependents shall be entitled to continuation coverage pursuant to
Section 4980B of the Internal Revenue Code of 1986, as amended, Sections 601-608
of the Employee Retirement Income Security Act of 1974, as amended, and under
any other applicable law, to the extent required by such laws, determined on the
basis of the date of Executive's termination of employment hereunder and
reducing the period of such continuation coverage (to the extent permitted by
such laws) by the period of coverage provided under the preceding sentence.
c. Payments in the Event of Disability. Prior to the termination
of Executive's employment pursuant to Paragraph 6(a) of this Agreement, during
any period that Executive fails to perform his full-time duties with the Company
as a result of incapacity due to physical or mental illness, he shall continue
to receive his Base Salary, Bonus and other benefits provided hereunder, less
the amount of any disability benefits received by Executive during such period
under any disability plan or program sponsored by the Company (whether the
premium or other cost therefor is paid by the Company or by Executive), until
Executive's employment hereunder is terminated pursuant to Paragraph 6(a).
Thereafter, Executive's benefits shall be determined under the Company's
retirement, insurance, and other compensation and benefit plans and programs
then in effect, in accordance with the terms of such programs.
d. Effect of Change in Control. In the event of a Change in
Control (as defined below) while Executive is still employed by the Company, all
options granted to Executive under the 2003 Equity Plan or otherwise and then
held by Executive shall become fully vested. In the event that (A) a Change in
Control occurs before the first anniversary of the Effective Date, and (B)
Executive's employment is terminated by Executive for Good Reason pursuant to
Paragraph 6(c) or by the Company without Cause pursuant to Paragraph 6(d) upon
or within six (6) months following such Change in Control, Executive shall be
entitled to the payments set forth in either of the following clauses (i) or
(ii), in addition to the payments
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Executive is otherwise entitled to under Paragraph 7(b): (i) if the Aggregate
Consideration (as defined below) payable to the Company or the stockholders, as
the case may be, in the Change in Control transaction is less than or equal to
$100 million (the "Threshold Level"), Executive shall be entitled to receive one
(1) year of Base Salary in addition to the one (1) year Base Salary payable as
severance under the first sentence of Paragraph 7(b), or (ii) if the Aggregate
Consideration payable to the Company or its stockholders, as the case may be, in
the Change in Control transaction is greater than the Threshold Level, Executive
shall be entitled to receive such additional severance payments, if any, as
would be necessary to cause the total realizable value that Executive is
entitled to receive in connection with the Change in Control (which is deemed to
be the sum of additional payments of severance under (i) of this sentence plus
the value (as defined below) of Executive's stock options granted hereunder as
of the date of such Change in Control) to be no less than the total realizable
value he would have been entitled to receive if the Aggregate Consideration
payable to the Company or its stockholders in the Change in Control transaction
was equal to the Threshold Level . Any additional severance payments to be made
pursuant to this Paragraph 7(d) shall be payable in accordance with the
Company's regular payroll procedures and subject to Executive's execution of a
release, in a form satisfactory to the Compensation Committee, and continued
compliance with the terms of Paragraph 8 hereunder.
For purposes of this Agreement, a "Change in Control" shall mean the
occurrence of any of the following: (i) the Company consolidates with, or merges
with or into another corporation or sells, assigns, conveys, transfers, leases
or otherwise disposes of all or substantially all of its assets to any person,
or any corporation consolidates with, or merges with or into, the Company, in
any such event pursuant to a transaction in which the outstanding voting stock
of the Company is changed into or exchanged for cash, securities or other
property, other than any such transaction where (A) the outstanding voting stock
of the Company is changed into or exchanged for (x) voting stock of the
surviving or transferee corporation or (y) cash, securities (whether or not
including voting stock) or other property, and (B) all or any holders of the
voting stock of the Company immediately prior to such transaction own, directly
or indirectly, in the aggregate not less than 50% of the voting power of the
voting stock of the surviving corporation immediately after such transaction or
(ii) the Company is liquidated or dissolved or adopts a plan of liquidation;
provided, however , that a Change in Control shall not include any going private
or leveraged buy-out transaction which is sponsored by Executive or in which
Executive acquires an equity interest materially in excess of his equity
interest in the Company immediately prior to such transaction (the events
described in (i) or (ii) above being referred to herein as a "Change in
Control").
For purposes of this Agreement, "Aggregate Consideration" shall mean
the aggregate amount of cash and the fair market value (on the date of transfer)
of securities (whether debt or equity) or assets receivable by the Company or
its stockholders, as the case may be, in connection with the Change in Control
transaction (but excluding the value of any agreement with a shareholder for the
performance of future services, and any indebtedness or other liabilities of the
Company assumed or otherwise paid by the acquirer in connection with such
transaction). For purposes of this Paragraph 7(d), the value of Executive's
stock options shall be equal to the product of (i) an amount calculated as the
per share Aggregate Consideration (determined by including as outstanding the
number of shares subject to
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outstanding stock options issued by the Company) reduced by the per share
exercise price under the respective option, multiplied by (ii) the number of
shares subject to the respective option.
For purposes of this Paragraph 7(d), clause (i) of the definition of
"Good Reason" set forth in Paragraph 6(c) shall be deemed substituted in its
entirety by the following: (i) without Executive's express written consent, (A)
the assignment to Executive of any material new duties or responsibilities
substantially inconsistent in character with Executive's duties and
responsibilities within the Company immediately prior to a Change in Control,
(B) any substantial adverse change in Executive's material duties and
responsibilities as in effect immediately prior to a Change in Control, (C) a
change in the annual or long term incentive plan in which Executive currently
participates such that Executive's opportunity to earn incentive compensation is
materially impaired, (D) a material reduction in the aggregate value of Company
perquisites made available to Executive, (E) an elimination or material
impairment of Executive's ability to participate in retirement plans comparable
to those in which Executive currently participates, or (F) a substantial
increase in Executive's obligation to engage in overseas travel on the Company's
business over Executive's present overseas business travel obligations.
8. Confidentiality, Non-Solicitation and Non-Competition.
a. During the Term and thereafter, Executive shall not,
except as may be required to perform his duties hereunder or as required by
applicable law, disclose to others or use, whether directly or indirectly, any
Confidential Information. For purposes of this Agreement, "Confidential
Information" shall mean information about the Company, its subsidiaries and
affiliates, and their respective clients, customers and employees that is not
available to the general public and that was learned by Executive in the course
of his employment by the Company, including (without limitation) any proprietary
knowledge, trade secrets, data, formulae, information, client and customer
lists, information regarding other employees of the Company, and all papers,
resumes, records (including computer records) and the documents containing such
Confidential Information. Executive acknowledges that such Confidential
Information is specialized, unique in nature and of great value to the Company,
and that such information gives the Company a competitive advantage. Upon the
termination of his employment for any reason whatsoever, Executive shall
promptly deliver to the Company all documents, computer tapes and disks (and all
copies thereof) containing any Confidential Information.
b. During the Term and for two (2) years thereafter,
Executive shall not, directly or indirectly in any manner or capacity (e.g., as
an advisor, principal, agent, partner, officer, director, shareholder, employee,
member of any association or otherwise) engage in, work for, consult, provide
advice or assistance or otherwise participate in any activity that competes with
the Company in the business of temporary staffing, direct placement, managed
staffing services or IT consulting in any of the following jurisdictions (it
being agreed that the Company maintains business operations in each of such
jurisdictions): Alabama, Arizona, California, Colorado, the District of
Columbia, Florida, Georgia, Idaho, Illinois, Kansas, Massachusetts, Michigan,
Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania,
Rhode Island, South Carolina, Texas, Utah, Virginia, and Washington. Executive
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further agrees that during such period he will not assist or encourage any other
person in carrying out any activity that would be prohibited by the foregoing
provisions of this Paragraph 8 if such activity were carried out by Executive
and, in particular, Executive agrees that he will not induce any employee of the
Company to carry out any such activity; provided, however, that the "beneficial
ownership" by Executive, either individually or as a member of a "group," as
such terms are used in Rule 13d of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended, of less than 2% of the voting stock
of any publicly held corporation shall not be a violation of this Agreement. It
is further expressly agreed that the Company will or would suffer irreparable
injury if Executive were to compete with the Company or any subsidiary or
affiliate of the Company in violation of this Agreement and that the Company
would by reason of such competition be entitled to injunctive relief in a court
of appropriate jurisdiction, and Executive further consents and stipulates to
the entry of such injunctive relief in such a court prohibiting Executive from
competing with the Company or any subsidiary or affiliate of the Company in
violation of this Agreement.
c. During the Term and for two (2) years thereafter,
Executive shall not, directly or indirectly, influence or attempt to influence
customers or suppliers of the Company or any of its subsidiaries or affiliates,
to divert their business to any competitor of the Company.
d. Executive recognizes that he will possess
confidential information about other employees of the Company relating to their
education, experience, skills, abilities, compensation and benefits, and
interpersonal relationships with customers of the Company. Executive recognizes
that the information he will possess about these other employees is not
generally known, is of substantial value to the Company in developing its
business and in securing and retaining customers, and will be acquired by him
because of his business position with the Company. Executive agrees that, during
the Term, and for a period of two (2) years thereafter, he will not, directly or
indirectly, solicit or recruit any employee of the Company for the purpose of
being employed by his or by any competitor of the Company on whose behalf he is
acting as an agent, representative or employee.
e. Executive acknowledges that he was informed of the
time, territory, scope and other essential requirements of the restrictions in
this Paragraph 8 when he agreed to become employed with the Company under the
terms set forth in this Agreement, and Executive further acknowledges that he
has received sufficient and valuable consideration for his agreement to such
restrictions.
9. Waiver. The failure of a party to enforce any term, provision,
or condition of this Agreement at any time or times shall not be deemed a waiver
of that term, provision, or condition for the future, nor shall any specific
waiver of a term, provision, or condition at one time be deemed a waiver of such
term, provision, or condition for any future time or times.
10. Governing Law; Jurisdiction; No Jury Trial. This Agreement
shall be governed and construed in accordance with the laws of the State of
North Carolina without giving effect to principles of conflicts of law. Each
party hereby irrevocably submits to the jurisdiction of the state and federal
courts sitting in Mecklenburg County, State of North Carolina, for the
adjudication of any dispute hereunder (except as hereinafter provided). EACH
PARTY
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HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY FOR THE ADJUDICATION OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS
AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE OR
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND
(IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS IN THIS SECTION. If, for any reason, the foregoing
jury trial waiver is not enforceable at the time of any dispute hereunder, then
such dispute shall be resolved by binding arbitration in accordance with the
then current National Rules for the Resolution of Employment Disputes of the
American Arbitration Association. Such arbitration, if necessary, shall be
convened in the City of Charlotte, State of North Carolina. Notwithstanding any
other provision hereof, the Company shall be entitled to seek a restraining
order or injunction in any court of competent jurisdiction to prevent any
continuation of any violation of the provisions of Paragraph 8 of this
Agreement, and Executive consents that such restraining order or injunction may
be granted without the necessity of the Company's posting any bond, except to
the extent otherwise required by applicable law.
11. Tax Withholding. The Company shall withhold from any amounts
payable under this Agreement such federal, state and local income and employment
taxes as shall be required to be withheld pursuant to any applicable law or
regulation.
12. Paragraph Headings. Paragraph headings contained in this
Agreement are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
13. Severability. Each provision of this Agreement is intended to
be severable. If any provision of this Agreement or any portion thereof is
declared invalid, illegal, or incapable of being enforced by any court of
competent jurisdiction, the remainder of such provisions and all of the
remaining provisions of this Agreement shall continue in full force and effect.
14. Integrated Agreement, Amendments. Except for stock option
agreements and the terms of the 2003 Equity Plan, this Agreement constitutes the
entire understanding and agreement between the parties hereto with respect to
the subject matter hereof, and supersedes all prior agreements, understandings,
memoranda, term sheets, conversations and negotiations, including without
limitation the Employment Agreement between the Company and Executive dated
October 7, 1996. This Agreement can only be changed or modified pursuant to a
written instrument duly executed by each of the parties hereto.
15. Interpretation, Counterparts. No provision of this Agreement
is to be interpreted for or against any party because that party drafted such
provision. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same instrument.
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16. Assignment. The Company may assign this Agreement to any
direct or indirect subsidiary or parent of the Company or joint venture in which
the Company has an interest, or any successor (whether by merger, consolidation,
purchase or otherwise) to all or substantially all of the stock, assets or
business of the Company and this Agreement shall be binding upon and inure to
the benefit of such successors and assigns. Executive may not sell, transfer,
assign, or pledge any of his rights or interests pursuant to this Agreement.
17. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered by hand
delivery, or by facsimile (with confirmation of transmission), or by overnight
courier, or by registered or certified mail, return receipt requested, postage
prepaid, in each case addressed as follows:
If to Executive:
Xxxxxxx X. Xxxxxxxx, Xx.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
If to the Company:
Personnel Group of America, Inc.
0000 Xxxxx Xxxxx Xxxxxxx
0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by addressee.
[The Remainder of This Page is Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first above written.
Personnel Group of America, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
-------------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
-12-
[Employment Agreement]
