EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of February 21, 1997 by and between OutSource International, Inc., a Florida
corporation ("Company~), and Xxxx X. Xxxxxxx ("Employee").
WHEREAS, the Company, through its Board of Directors, desires to retain
the services of Employee, and Employee desires to be retained by the Company, on
the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee hereby
accepts employment, as President and Chief Executive Officer of the Company upon
the terms of and subject to this Agreement.
2. TERM. The term ("Term") of this Agreement shall commence and this
Agreement shall become effective on February 21, 1997 (the "Effective Date") and
shall continue, for successive periods of one year each, until otherwise
terminated by either party: (i) at any time in accordance with the terms hereof;
or (ii) upon written notice delivered to the other party not less than ninety
days prior to any annual anniversary of the Effective Date, which termination
shall be effective as of such anniversary.
3. DUTIES. During his employment hereunder, Employee will serve as the
President and Chief Executive Officer of the Company. Employee shall have
general and active charge of the business and affairs of the Company and, in
such capacity, shall have responsibility for the day-to-day operations of the
Company, subject to the authority and control of the Board of Directors of the
Company. Employee shall report directly to the Board of Directors of the
Company. Employee shall diligently perform such duties and shall devote his
entire business skill, time and effort to his employment and his duties
hereunder and shall not during the Term, directly or indirectly, alone or as a
member of a partnership, or as an officer, director, employee or agent of any
other person, firm or business organization engage in any other business
activities or pursuits requiring his personal service that materially conflict
with his duties hereunder or the diligent performance of such duties. This shall
not, however, preclude Employee from serving on boards of directors of other
corporations.
4. COMPENSATION.
a. SALARY. During his employment hereunder, Employee shall be paid
an initial base salary of $250,000 per year, payable in equal
installments not less than monthly. The Employee's salary shall be
reviewed at least annually by the Board of
Directors or any Committee of the Board delegated the authority to
review executive compensation.
b. BONUS. In addition to salary, Employee shall be entitled to
participate in the Company's Stock Incentive Plan as adopted by the
Board of Directors of the Company and effective December 22, 1995 (the
"Stock Incentive Plan") and, in addition, to participate in a
Management Bonus Program anticipated to be established by the Company
with an initial targeted bonus for calendar year 1997 of $125,000 for
Employee in a manner consistent with memoranda dated December 29, 1995
and November 21, 1996 from Xxxx X. Xxxxxxx to the Company's Board of
Directors (hereafter the "Management Bonus Program").
c. INSURANCE. During his employment hereunder, Employee shall be
entitled to participate in such health, life, disability and other
insurance programs, if any, that the Company may offer to other key
executive employees of the Company from time to time.
d. OTHER BENEFITS. During his employment hereunder, Employee shall
be entitled to such other benefits, if any, that the Company may offer
to other key executive employees of the Company from time to time.
e. VACATION. Employee shall be entitled to four weeks vacation
leave (in addition to Company holidays) in each calendar year during
the Term, or such additional amount as may be set forth in the vacation
policy that the Company shall establish from time to time. Except with
respect to vacation time unused as the result of a request by the
Company to postpone a vacation, any unused vacation from one calendar
year shall not carry-over to any subsequent calendar year.
f. EXPENSE REIMBURSEMENT. Employee shall, upon submission of
appropriate supporting documentation, be entitled to reimbursement of
reasonable out-of-pocket expenses incurred in the performance of his
duties hereunder in accordance with policies established by the
Company. Such expenses shall include, without limitation, reasonable
entertainment expenses, gasoline and toll expenses and cellular phone
use charges, if such charges are directly related to the business of
the Company.
5. GROUNDS FOR TERMINATION.
The Board of Directors of the Company may terminate this Agreement for
Cause. As used herein, "Cause" shall mean any of the following: (i) failure on
the part of Employee to disclose to Company in writing on or before the date
hereof Employee's breach of or default under any employment, non-compete,
confidentiality or other agreement between Employee and any prior employer of
Employee (including without limitation any breach or default that might result
from Employee's entering into or performing his duties and obligations under
this Agreement); (ii) an act of willful misconduct or gross negligence by
Employee in the performance of his material duties or obligations to the
Company;(iii) indictment of Employee for a felony involving moral turpitude,
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whether relating to his employment or otherwise; (iv) an act of dishonesty or
breach of trust on the part of Employee resulting or intended to result directly
or indirectly in personal gain or enrichment at the expense of the Company; (v)
conduct on the part of Employee intended to injure the business of the Company;
(vi) Employee's addiction to any drug or chemical; (vii) Employee's
insubordination unless resulting from Employee's refusal to do an illegal act;
or (viii) a material failure of Employee to perform or observe the provisions of
this Agreement (other than by reason of disability as defined herein). The
existence of any of the foregoing events or conditions, except under clause
(iii), shall be determined by the Board of Directors (excluding the Employee) in
the exercise of its reasonable judgment provided that if such occurrence relates
to section (i), (vi) or (viii) above, it must persist more than (a) five (5)
days after notice is given to Employee by personal delivery or (b) ten (10) days
after a notice is given to Employee by any other means, each notice which
details the occurrence. Notwithstanding the foregoing, if occurrence under
sections (ii), (v), (vii) or (viii) cannot reasonably be remedied within the
time periods set forth, the Board of Directors shall not exercise its right to
terminate under this section if Employee begins to remedy the occurrence within
the time period and continues actively and diligently in good faith to complete
remedy such occurrence. As used herein "insubordination" means Employee failing
to use his best efforts to comply with a written directive made by the Company's
Board of Directors for any action or inaction not inconsistent with the duties
set forth herein.
In addition, Employee's employment shall be terminated upon a sale of
all or substantially all of the assets of the Company, where the consideration
consists of at least 80% payable in cash or marketable securities at closing. As
used herein "marketable securities" shall mean any debt or equity security which
is free from legal restrictions in transferability (including contractual
restrictions and volume limitations under Rule 144 under the Securities Act of
1933, as amended) and which security is listed on a national securities
exchange, quoted on the NASDAQ Stock Market, Inc. or traded in the
over-the-counter-market.
6. TERMINATION BY EMPLOYEE.
Employee may terminate this Agreement with Good Reason. "Good
Reason" means:
a. Without Employee's express written consent, the assignment to
Employee of duties inconsistent with Employee's positions with the
Company as set forth in this Agreement (including status, offices,
titles and reporting requirements), authority, duties or
responsibilities as contemplated by Paragraph 3; or
b. The Company causes a material change in the nature or scope of
the authorities, powers, functions, duties or responsibilities attached
to the Employee's positions as described in Section 3;
c. At any time the Employee is required, without his written
consent, to relocate his office more than seventy-five miles from the
location of the Company's current corporate headquarters;
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d. The Company decreases the Employee's compensation below the
levels provided for by the terms of Section 4a (taking into account
increases in base compensation made from time to time in accordance
with Section 4a) or the amounts available pursuant to the terms of the
Management Bonus Program;
e. A material breach of the provisions of this Agreement by the
Company (except those set forth in Paragraph 4.a) and Employee provides
at least 15 days' prior written notice to at least two members of the
Company's Board of Directors (other than Employee) of the existence of
such breach and his intention to terminate this Agreement (no such
termination shall be effective if such breach is cured during such
period);
f. The failure of the Company to comply with the provisions of
Paragraph 4.a for an uninterrupted 10-day period;
g. The Company materially reduces the Employee's benefits under
any employee benefit plan, program or arrangement of the Company (other
than a change that affects all employees similarly situated) from the
level in effect upon the Employee's commencement or participation; or
7. PAYMENT AND OTHER PROVISIONS UPON TERMINATION.
a. In the event Employee's employment with the Company (including
its subsidiaries) is terminated by the Company for Cause as provided in
Paragraph 5 then, on or before Employee's last day of employment with
the Company, the provisions of this Paragraph 7.a shall apply. These
same provisions shall apply if Employee terminates his employment
without Good Reason as described in Paragraph 6.
i. SALARY, PERFORMANCE AWARD, AND BONUS PAYMENTS: The Company
shall pay in a lump sum to Employee such amount of compensation
due Employee for services rendered to the Company, as well as
compensation for unused vacation time, as has accrued but remains
unpaid. Such payment shall include ninety percent of the
estimated, prorata portion of Employee's targeted bonus through
the date of termination. The final calculation of Employee's bonus
shall be made, and any remaining bonus amount due to Employee
paid, within thirty days of the delivery to the Company of the
audited financial statements for the fiscal year in which the
termination occurs. Any and all other rights granted to Employee
under this Agreement shall terminate as of the date of
termination.
ii. NONCOMPETITION/NONSOLICITATION PERIOD. The provisions of
Paragraph 14 shall continue to apply with respect to Employee for
a period of six months following the date of termination. Upon
Employee's resignation or termination of employment for any reason
whatsoever, Employer shall have the right, at its sole discretion,
to extend the period during which Employee shall be subject to the
provisions of Section 14 of this Agreement for not longer than two
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years after the date which is six months after the date of such
resignation or termination. If Employer elects to so extend
Employee's obligations under such Sections, Employer shall so
notify Employee within 30 days after Employee's resignation or
termination of employment specifying the term of the extension
period. In consideration of Employee's agreement to continue to be
subject to such provisions, Employer shall continue to pay
Employee during the six month period commencing on the date
Employee's employment terminates and during the extension period,
if any, selected by Employer as provided for herein (collectively,
the "Post-Employment Period"), one hundred percent (100%) of his
normal periodic base salary payments in a manner consistent with
the manner such payments were made immediately prior to such
resignation or termination plus an amount equal to the prorata
portion of Employee's estimated target bonus under the Management
Bonus Program as in effect immediately prior to his date of
termination.
b. In the event Employee's employment with the Company (including
its subsidiaries) is terminated by the Company for any reason other
than for Cause as provided in Paragraph 5 and other than as a
consequence of Employee's death, disability, or normal retirement under
the Company's retirement plans and practices, then the following
provisions apply. These same provisions shall apply if Employee
terminates his employment with Good Reason as described in Paragraph 6.
i. SALARY AND BONUS PAYMENTS: On or before Employee's last day of
employment with the Company, the Company shall pay to Employee as
compensation for services rendered to the Company a cash amount
equal to the sum of (x) twice the amount of Employee's annual base
salary and (y) ninety percent of twice the estimated targeted
bonus under the Management Bonus Program as in effect immediately
prior to his date of termination. The final calculation of
Employee's target bonus shall be made, and any remaining bonus
amount due to Employee paid, in the manner set forth in Section
7.a.i. At the election of the Company, the cash amount referred to
in this Paragraph 7.b.i may be paid to Employee in periodic
installments in accordance with the regular salary payment
practices of the Company, with the first such installment to be
paid on or before Employee's last day of employment with the
Company, and no interest shall be paid with respect to any amount
not paid on the Employee's date of termination.
ii. VESTING OF OPTIONS AND RIGHTS: Notwithstanding the vesting
period provided for in the Stock Incentive Plan and any related
stock option agreements between the Company and Employee for stock
options ("options") and stock appreciation rights ("rights")
granted Employee by the Company, all options and stock
appreciation rights shall be immediately vested and exercisable
upon termination of employment. In addition, Employee will have
the right to exercise all options and rights for the shorter of
(a) one year following his termination of
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employment or (b) with respect to each option, the remainder of
the period of exercisability under the terms of the appropriate
documents that grant such options.
iii. BENEFIT PLAN COVERAGE: The Company shall maintain in full
force and effect for Employee and his dependents for one year
after the date of termination, all life, health, accident, and
disability benefit plans and other similar employee benefit plans,
programs and arrangements in which Employee or his dependents were
entitled to participate immediately prior to the date of
termination, in such amounts as were in effect immediately prior
to the date of termination, provided that such continued
participation is possible under the general terms and provisions
of such benefit plans, programs and arrangements. In the event
that participation in any benefit plan, program or arrangement
described above is barred, or any such benefit plan, program or
arrangement is discontinued or the benefits thereunder materially
reduced, the Company shall arrange to provide Employee and his
dependents for two years after the date of termination with
benefits substantially similar to those that they were entitled to
receive under such benefit plans, programs and arrangements
immediately prior to the date of termination. If immediately prior
to the date of termination the Company provided Employee with any
club memberships, Employee will be entitled to continue such
memberships at his sole expense. Notwithstanding any time period
for continued benefits stated in this Paragraph 7.b.iii, all
benefits in this Paragraph 7.b.iii will terminate on the date that
Employee becomes an employee of another employer and eligible to
participate in the employee benefit plans of such other employer.
To the extent that Employee was required to contribute amounts for
the benefits described in this Paragraph 7.b.iii prior to his
termination, he shall continue to contribute such amounts for such
time as these benefits continue in effect after termination.
iv. [INTENTIONALLY OMITTED]
v. SAVINGS AND OTHER PLANS: Except as otherwise more specifically
provided herein or under the terms of the respective plans
relating to termination of employment, Employee's active
participation in any applicable savings, retirement, profit
sharing or supplemental employee retirement plans or any deferred
compensation or similar plan of the Company or any of its
subsidiaries shall continue only through the last day of his
employment. All other provisions, including any distribution
and/or vested rights under such plans, shall be governed by the
terms of those respective plans.
vi. NONCOMPETITION/NONSOLICITATION PERIOD. The provisions of
Paragraphs 14 and 15 shall continue, beyond the time periods set
forth in such paragraphs, to apply with respect to Employee for
the shorter of (x) six months following the date of termination
subject to extension as set forth in Paragraph 7.a.ii. or (y)
until such time as the Company has failed to comply with the
provisions of Paragraph 7.b.i for an uninterrupted 10-day period
and such failure
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is not cured within 5 days after written notice of such failure is
delivered to at least two directors of the Company (other than
Employee).
c. The provisions of this Paragraph 7 shall apply if Employee's
employment is terminated prior to or more than three years after the
occurrence of a Change of Control (as defined in Paragraph 8.c). From
the occurrence of any Change of Control until the third anniversary of
such Change of Control, the provisions of Paragraph 8 shall apply in
place of this Paragraph 7, EXCEPT THAT in the event that Employee's
employment is terminated by Employee after a Change of Control without
Good Reason or by the Company for Cause, then the provisions of
Paragraph 7 shall not apply and the provisions of Paragraph 7.a shall
apply. Termination upon death, disability and retirement are covered by
Paragraphs 9, 10, and 11, respectively.
8. PAYMENT AND OTHER PROVISIONS AFTER CHANGE OF CONTROL.
a. SALARY, PERFORMANCE AWARD, AND BONUS PAYMENTS: In the event
Employee's employment with the Company is terminated within three years
following the occurrence of a Change of Control (other than as a
consequence of his death or disability, or of his normal retirement
under the Company's retirement plans and practices) either (x) by the
Company without "Cause" or (y) by Employee with Good Reason as provided
in Paragraph 6, then Employee shall be entitled to receive from the
Company, the following:
i. BASE SALARY. Employee's annual base salary as in effect at the
date of termination, multiplied by two, shall be paid on the date
of termination;
ii. TARGET BONUS. Ninety percent of the amount of the Employee's
target bonus under the Management Bonus Program for the fiscal
year in which the date of termination occurs, multiplied by two,
shall be paid on the date of a termination; the final calculation
of Employee's target bonus shall be made, and any remaining bonus
amount due to Employee paid, in the manner set forth in Section
7.a.i.; and
iii. [INTENTIONALLY OMITTED]
iv. OTHER BENEFITS. All benefits under Paragraphs 7.b.ii, 7.b.iii,
and 7.b.v shall be extended to Employee as described in such
paragraphs, except that the period for exercise of options and
rights described in the last sentence of Paragraph 7.b.ii shall be
three years.
b. NONCOMPETITION/NONSOLICITATION PERIOD. In the event of a
termination under Paragraph 8.a within one year after a Change of
Control the provisions of Paragraphs 14 shall continue to apply as
stated in paragraph 0.x.xx.
For purposes of this Agreement, the term "Change of Control" shall
mean:
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i. The acquisition, other than from the Company, by any
individual, entity or group (within the meaning of _ 13(d)(3) or _
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) (any of the
foregoing described in this Paragraph 8.c.i hereafter a "Person")
of 15% or more of either (a) the then outstanding shares of
Capital Stock of the Company (the "Outstanding Capital Stock") or
(b) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the "Voting Securities"), PROVIDED.
HOWEVER, that any acquisition by (x) the Company or any of its
subsidiaries, or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any of its subsidiaries
or (y) any Person that is eligible, pursuant to Rule 13a-l(b)
under the Exchange Act, to file a statement on Schedule 13G with
respect to its beneficial ownership of Voting Securities, whether
or not such Person shall have filed a statement on Schedule 13G,
unless such Person shall have filed a statement on Schedule 13D
with respect to beneficial ownership of 15% or more of the Voting
Securities or (z) any corporation with respect to which, following
such acquisition, more than 60% of, respectively, the then
outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Capital
Stock and Voting Securities immediately prior to such acquisition
in substantially the same proportion as their ownership,
immediately prior to such acquisition, of the Outstanding Capital
Stock and Voting Securities, as the case may be, shall not
constitute a Change of Control; or
ii. Following a public offering individuals who, as of the date
hereof, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided
that (a) the Board uses best efforts to fill any vacancies; (b)
any individual becoming a director subsequent to the date hereof
whose election or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office is in connection with an actual or threatened
election contest relating to the election of the Directors of the
Company (as such terms are used in Rule 14a-11 of Regulation 14A,
or any successor section, promulgated under the Exchange Act) and
(c) no effect shall be given to any changes in the Board
composition due to the rights granted to Triumph Capital Group,
Inc. and Bachow & Associates, Inc. (or their affiliates or
transferees) in connection with their investments in Company; or
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iii. Approval by the shareholders of the Company of a
reorganization, merger or consolidation (a "Business
Combination"), in each case, with respect to which all or
substantially all holders of the Outstanding Capital Stock and
Voting Securities immediately prior to such Business Combination
do not, following such Business Combination, beneficially own,
directly or indirectly, more than 60% of, respectively, the then
outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from Business Combination; or
iv. (a) a complete liquidation or dissolution of the Company or
(b) a sale or other disposition of all or substantially all of the
assets of the Company other than to a corporation with respect to
which, following such sale or disposition, more than 60% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors is then
owned beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Capital Stock
and Voting Securities immediately prior to such sale or
disposition in substantially the same proportion as their
ownership of the Outstanding Capital Stock and Voting Securities,
as the case may be, immediately prior to such sale or disposition.
9. TERMINATION BY REASON OF DEATH. If Employee shall die while employed
by the Company both prior to termination of employment and during the effective
term of this Agreement, all Employee's rights under this Agreement shall
terminate with the payment of such amounts of annual base salary as have accrued
but remain unpaid and a prorated amount of the targeted bonus under the
Company's Management Bonus Program through the month in which his death occurs.
The calculation of Employee's target bonus shall be made, and any bonus amount
due to Employee paid, in the manner set forth in Section 7.a.i. All benefits
under Paragraphs 7.b.ii, 7.b.iii and 7.b.v shall be extended to Employee's
estate as described in such paragraphs. In addition, Employee's eligible
dependents shall receive continued benefit plan coverage under Paragraph 7.b.iii
for six months from the date of Employee's death.
10. TERMINATION BY DISABILITY. Employee's employment hereunder may be
terminated by the Company for disability. In such event, all Employee's rights
under this Agreement shall terminate with the payment of such amounts of annual
base salary as have accrued but remain unpaid as of thirtieth (30th) day after
such notice is given EXCEPT that all benefits under Paragraphs 7.b.ii, 7.b.iii,
and 7.b.v shall be extended to Employee as described in such paragraphs,
PROVIDED, HOWEVER, that, with respect to Paragraph 7.b.iii, the period for
continued benefit plan coverage shall be limited to six months from the date of
termination. In addition, the noncompetition and nonsolicitation provisions of
Paragraphs 14 and 15 shall continue to apply to Employee for a period of six
months from the date of termination. For purposes of this Agreement,
"disability" is defined to mean that either:
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a. As a result of Employee's incapacity due to physical or mental
illness (1) Employee shall have been absent from his duties as an
officer of the Company on a substantially full-time basis for three
consecutive months or 120 days in any 180 day period and (2) Within
thirty days after the Company notifies Employee in writing that it
intends to replace him, Employee shall not have returned to the
performance of his duties as an officer of the Company on a full-time
basis; or
b. Employee is deemed disabled for purposes of any disability
policy, group or individual, paid for by Company and at the time in
effect, or if no such policy is then in effect, by Company's Board of
Directors in the exercise of its reasonable judgment.
11. RETIREMENT. It is expected that the Compensation Committee of the
Company's Board of Directors will develop a benefit plan for retirement. It is
expected that Employee's rights upon retirement will be specifically described
in such retirement benefit plan. If retirement benefits for Employee are not
specifically described in such plan, the Company shall provide Employee upon
retirement benefits no lesser than the highest level of benefits accorded any
other retiring executive officer during the five-year period immediately
preceding Employee's retirement.
12. INDEMNIFICATION. If litigation shall be brought to enforce or
interpret any provision contained herein, the non-prevailing party shall
indemnify the prevailing party for reasonable attorney's fees (including those
for negotiations, trial and appeals) and disbursements incurred by the
prevailing party in such litigation, and hereby agrees to pay prejudgment
interest on any money judgment obtained by the prevailing party calculated at
the generally prevailing NationsBank of Florida, N.A. base rate of interest
charged to its commercial customers in effect from time to time from the date
that payment(s) to him should have been made under this Agreement.
13. PAYMENT OBLIGATIONS ABSOLUTE. The Company's obligation to pay
Employee the compensation and to make the arrangements provided herein shall not
be affected by any duty to mitigate. The amount shall not be reduced by reason
of Employee's securing other employment or for any other reason. All amounts
payable by the Company hereunder shall be paid without notice or demand, and in
no event later than seven business days after such payments become due. Except
as expressly provided herein, the Company waives all rights that it may now have
or may hereafter have conferred upon it, by statute or otherwise, to terminate,
cancel or rescind this Agreement in whole or in part. Each and every payment
made hereunder by the Company shall be final and the Company will not seek to
recover all or any part of such payment from Employee or from whomsoever may be
entitled thereto, for any reason whatsoever. The Company may withhold for income
tax purposes any amounts required to be withheld under applicable tax statutes
and regulations.
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14. NONCOMPETITION AND NONSOLICITATION.
a. The nature of the system and methods employed in the Company's
business is such that Employee will be placed in a close business and
personal relationship with the customers of the Company and be privy to
confidential customer usage and rate information. Accordingly, at all
times during the term of this Agreement and for a period of one (1)
year immediately following the termination of Employee's employment
hereunder for any reason whatsoever, and for such additional periods as
may otherwise be set forth in this Agreement in reference to this
Paragraph 14, so long as the Company continues to carry on the same
business, Employee shall not, for any reason whatsoever, directly or
indirectly, for himself or on behalf of, or in conjunction with, any
other person, persons, company, partnership, corporation or business
entity:
i. Call upon, divert, influence or solicit or attempt to call
upon, divert, influence or solicit any customer or customers of
the Company;
ii. Divulge the names and addresses or any information concerning
any customer of the Company;
iii. Disclose any information or knowledge relating to the
Company, including but not limited to, the Company's system or
method of conducting business to any person, persons, f~rms,
corporations or other entities unaffiliated with the Company, for
any reason or purpose whatsoever;
iv. Own, manage, operate, control, be employed by, participate in
or be connected in any manner with the ownership, management,
operation or control of the same, similar or related line of
business as that carried on by the Company within the United
States.
b. The time period covered by the covenants contained in this
Paragraph 14 shall not include any period(s) of violation of any
covenant or any period(s) of time required for litigation to enforce
any covenant.
c. The covenants set forth in this Paragraph 14 shall be construed
as an agreement independent of any other provision in this Agreement
and existence of any potential or alleged claim or cause of action of
Employee against the Company, whether predicted on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of the covenants contained herein. An alleged or actual breach
of the Agreement by the Company shall not be a defense to enforcement
of the provisions of this Paragraph 14.
d. Employee acknowledges that he has read the foregoing and agrees
that the nature of the geographical restrictions are reasonable given
the international nature of the Company's business. In the event that
these geographical or temporal restrictions are
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judicially determined to be unreasonable, the parties agree that
these restrictions shall be judicially reformed to the maximum
restrictions which are reasonable.
15. CONFIDENTIALITY:
a. NONDISCLOSURE. Employee acknowledges and agrees that the
Confidential Information (as defined below) is a valuable, special and
unique asset of the Company's business. Accordingly, except in
connection with the performance of his duties hereunder, Employee shall
not at any time during or subsequent to the term of his employment
hereunder disclose, directly or indirectly, to any person, firm,
corporation, partnership, association or other entity any proprietary
or confidential information relating to the Company or any information
concerning the Company's financial condition or prospects, the
Company's customers, the design, development, manufacture, marketing or
sale of the Company's products or the Company's methods of operating
its business (collectively "Confidential Information"). Confidential
Information shall not include information which, at the time of
disclosure, is known or available to the general public by publication
or otherwise through no act or failure to act on the part of Employee.
b. RETURN OF CONFIDENTIAL INFORMATION. Upon termination of
Employee's employment, for whatever reason and whether voluntary or
involuntary, or at any time at the request of the Company, Employee
shall promptly return all Confidential Information in the possession or
under the control of Employee to the Company and shall not retain any
copies or other reproductions or extracts thereof. Employee shall at
any time at the request of the Company destroy or have destroyed all
memoranda, notes, reports, and documents, whether in "hard copy" form
or as stored on magnetic or other media, and all copies and other
reproductions and extracts thereof, prepared by Employee and shall
provide the Company with a certificate that the foregoing materials
have in fact been returned or destroyed.
c. BOOKS AND RECORDS. All books, records and accounts whether
prepared by Employee or otherwise coming into Employee's possession,
shall be the exclusive property of the Company and shall be returned
immediately to the Company upon termination of Employee's employment
hereunder or upon the Company's request at any time.
16. INJUNCTION/SPECIFIC PERFORMANCE SETOFF. Employee acknowledges that
a breach of any of the provisions of Paragraphs 14, 15 or 16 hereof would result
in immediate and irreparable injury to the Company which cannot be adequately or
reasonably compensated at law. Therefore, Employee agrees that the Company shall
be entitled, if any such breach shall occur or be threatened or attempted, to a
decree of specific performance and to a temporary and permanent injunction,
without the posting of a bond, enjoining and restraining such breach by Employee
or his agents, either directly or indirectly, and that such right to injunction
shall be cumulative to whatever other remedies for actual damages to which the
Company is entitled. Employee further agrees that, except as otherwise provided
in Paragraph 13 hereof, the Company may set off
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against or recoup from any amounts due under this Agreement to the extent of any
losses incurred by the Company as a result of any breach by Employee of the
provisions of Paragraphs 14, 15 or 16 hereof.
17. SEVERABILITY: Any provision in this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18. SUCCESSORS: This Agreement shall be binding upon Employee and inure
to his and his estate's benefit, and shall be binding upon and inure to the
benefit of the Company and any permitted successor of the Company. Neither this
Agreement nor any rights arising hereunder may be assigned or pledged by:
Employee or anyone claiming through Employee; or by the Company, except to any
corporation which is the successor in interest to the Company by reason of a
merger, consolidation or sale of substantially all of the assets of the
Company.
19. CONTROLLING LAW: This Agreement shall in all respects be governed
by, and construed in accordance with, the laws of the State of Florida.
20. NOTICES. Any notice required or permitted to be given hereunder
shall be written and sent by registered or certified mail, telecommunicated or
hand delivered at the address set forth herein or to any other address of which
notice is given:
To the Company: OutSource International, Inc.
0000 Xxxx Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: _______________________
To Employee: Xxxx X. Xxxxxxx
0000 Xxxxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto on the subject matter hereof and may not be modified
without the written agreement of both parties hereto.
22. WAIVER. A waiver by any party of any of the terms and conditions
hereof shall not be construed as a general waiver by such party.
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23. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and both of which together shall constitute
a single agreement.
24. INTERPRETATION. In the event of a conflict between the provisions
of this Agreement and any other agreement or document defining rights and duties
of Employee or the Company upon Employee's termination, the rights and duties
set forth in this Agreement shall control.
25. CERTAIN LIMITATIONS ON REMEDIES. Paragraph 7.b provides that
certain payments and other benefits shall be received by Employee upon the
termination of Employee by the Company other than for Cause and states that
these same provisions shall apply if Employee terminates his employment for Good
Reason. It is the intention of this Agreement that if the Company terminates
Employee other than for Cause (and other than as a consequence of Employee's
death, disability or normal retirement) or if Employee terminates his employment
with Good Reason, then the payments and other benefits set forth in Paragraph
7.b shall constitute the sole and exclusive remedies of Employee. This Paragraph
26 shall have no effect upon the provisions of Paragraph 8 of this Agreement.
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IN WITNESS WHEREOF, this Employment Agreement has been executed by the
parties as of the date first above written.
COMPANY:
OUTSOURCE INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Xxxxxx x. Xxxxxxx
Executive Vice President
EMPLOYEE:
/s/ XXXX X. XXXXXXX
------------------------------------
Xxxx X. Xxxxxxx
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