Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of August 10,
1998, by and between Preferred Healthcare Staffing, Inc., a Delaware
Corporation ("PHS" or the "Company") and Xxxxxx Xxxxxx-Xxxxxxxx ("Xxxxxx"),
an individual.
PRELIMINARY STATEMENTS:
A. PHS, on the one hand, and Xxxxxx Xxxxxx-Xxxxxxxx, Xxxxxx Xxxxx, Xxxxxx
Xxxxx and Xxxxxxx XxXxxxxxxx ("Sellers"), on the other hand, are parties to
a Stock Purchase Agreement dated as of July 10, 1998 (the "Stock Purchase
Agreement"). Pursuant to the Stock Purchase Agreement, PHS has acquired
one hundred percent (100%) of the stock of National Explorers and Travelers
Health Care, Inc., a Florida corporation ("NET").
X. Xxxxxx was a fifty percent (50%) shareholder and President of NET.
C. PHS wishes to employ Xxxxxx as an Executive Vice President of PHS subject
to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements and promises hereinafter set forth, the parties hereto agree as
follows:
AGREEMENT
1. TERM; PRIOR AGREEMENTS Xxxxxx shall be employed by PHS commencing on the
date hereof and terminating one-year from such date, unless sooner
terminated in accordance with the terms of this Agreement (such period or
any renewal period are referred to herein as the "Term"). This Agreement
can be renewed for successive one-year terms with the mutual written
consent of PHS and Xxxxxx. This Agreement supercedes all prior agreements
between Xxxxxx and NET or the Company, whether the agreement is oral or in
writing.
2. SERVICES TO BE PERFORMED BY XXXXXX. During the Term, Xxxxxx shall serve as
Executive Vice President and shall perform those duties, including the
interface with other senior executives of the Company, delegated to her by
the President or Chief Executive Officer of the Company and satisfy the
objectives set forth in the Business Plan attached hereto as Exhibit A.
3. COMPENSATION. (a) Xxxxxx shall receive an annual salary of $150,000.00
("Annual Salary") during the Term, which shall be payable in the same
manner as the other executives of PHS. Xxxxxx shall also receive
perquisites similar to those perquisites made available to other executives
of PHS and shall be reimbursed for all pre-approved reimbursable business
expenses.
(b) Xxxxxx shall also receive a bonus if at least 101% of the objectives
("Objectives") set forth in the Business Plan attached hereto as Exhibit
A are met. Xxxxxx'x bonus shall be computed as follows:
(i) If the Company achieves less than 100% of the Objectives, Xxxxxx
shall not receive any bonus payment;
(ii) If the Company achieves between 100% and 110% of the Objectives,
Xxxxxx shall receive a bonus payment equal to two (2) percentage
points times the percentage Objective achieved (expressed as a
whole number) less 100, times her Annual Salary;
(iii) If the Company achieves between 111% and 150% of the Objectives,
Xxxxxx shall receive a bonus equal to one half of one percentage
point (1/2 of 1%) times the percentage Objective achieved
(expressed as a whole number) less 110, times her Annual Salary;
(iv) In no event shall Xxxxxx be entitled to receive a bonus payment
greater than 40% of her Annual Salary;
(v) Any bonus payment due shall be paid no later than ninety (90)
days after year-end and shall be based on the audited financial
statements of PHS. Xxxxxx must be employed by PHS on December
31, 1998 in order to be entitled to receive the bonus. Xxxxxx
shall not be entitled to receive a partial bonus.
4. CONFIDENTIALITY. Xxxxxx acknowledges that during the course of her
ownership of the stock of Net and her duties as an employee and officer,
she has had and may in the future continue to be given access to or may
become acquainted with Confidential Information and Trade Secrets of
PHS, Preferred Employers Holdings, Inc., Preferred Employers Group, Inc.
and its affiliates (hereinafter collectively referred to as
"Preferred"). As used in this Section 4, Confidential Information and
Trade Secrets means all trade practices, customer lists, member or
beneficiary list for any employee staffing company, professional
employer organization (PEO), self-insurance fund or employee
organization serviced or proposed to be serviced by Preferred, all
marketing plans, financial information, Travel Nurse information, and
all other compilations of information that relate to the business of
Preferred, or its affiliates, travel nurses, customers or suppliers, and
which have not been disclosed by Preferred to the public. Xxxxxx
acknowledges that the Confidential Information and Trade Secrets of
Preferred, as such may exist from time to time are valuable,
confidential, special and unique assets of Preferred, expensive to
produce and maintain and essential for the profitable operation of its
businesses. At all times from and after the date of this Agreement,
except with Preferred's express prior written consent, Xxxxxx shall not,
directly or indirectly, communicate, disclose or divulge to any person,
or use for her benefit or the benefit of any person, in any manner any
Confidential Information and Trade Secrets acquired before or during
Xxxxxx'x employment with PHS or NET, including, without limitation, the
terms of this Agreement, except as may be required by law.
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5. TIME COMMITMENT. During the Term, Xxxxxx shall devote 100% of her full
working time to the operations of PHS.
6. NONCOMPETITION. Xxxxxx shall be bound by the provisions of Section 4.12
Covenant Not To Compete, in the Stock Purchase Agreement.
7. STOCK OPTIONS. On the date hereof, Preferred Employers Holdings, Inc.
("PEH") will grant to Xxxxxx stock options to purchase up to 50,000
shares of PEH common stock. Such stock options are subject to the
vesting schedule and other terms and conditions contained in the
Company's Stock Option Agreement by and between PEH and Xxxxxx, a copy
of which is attached hereto as Exhibit B.
8. BENEFIT PLANS. Xxxxxx shall be entitled to participate in PHS' benefit
plans in the same manner and subject to the same terms and conditions as
the other executives of PHS.
9. RELIANCE. Xxxxxx acknowledges that her compliance with the terms and
conditions of this Agreement is an essential component of the
transactions contemplated by the Stock Purchase Agreement. Xxxxxx
further acknowledges that her compliance with the provisions of Sections
4 and 6 of this Agreement (hereinafter referred to as the "Restrictive
Covenants") is a material element of the consideration bargained for by
PHS hereunder and under the Stock Purchase Agreement, especially in view
of the information disclosed to Xxxxxx and in connection with the Stock
Purchase Agreement. Xxxxxx agrees to be bound by the provisions of
Sections 4 and 6 of this Agreement to the maximum extent permitted by
law, it being the intent and spirit of the parties that the provisions
of Sections 4 and 6 of this Agreement shall be enforceable even after
the Term. However, the parties further agree that if any portion of any
of the Restrictive Covenants or their application is construed to be
invalid or unenforceable, then the other portions thereof and the other
Restrictive Covenants and their application shall not be affected
thereby and shall be enforceable. If any of the Restrictive Covenants
and their application shall for any reason be held to be excessively
broad as to duration, geographical scope, property, subject or similar
factor, then the court making such determination shall have the power to
reduce or limit such scope, duration, area or other factor so as to be
enforceable to the maximum extent compatible with applicable law, and
such Restrictive Covenant shall then be enforceable in its reduced or
limited form.
10. TERMINATION. (a) This Agreement may be terminated by PHS at any time
"For Cause". For purposes of this Agreement, "For Cause" shall mean the
following: (i) Xxxxxx has failed to devote 100% of her full working
time to the operations of PHS, (ii) Xxxxxx has been convicted of
(whether or not subject to appeal) or plead "nolo contendere" or has
made any similar plea to any criminal offense involving a violation of
federal or state securities laws or regulations, embezzlement, fraud,
wrongful taking or misappropriation of property, theft, or any other
crime
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involving dishonesty, (iii) Xxxxxx has violated or breached any
provision of this Agreement, (iv) Xxxxxx has taken any action which
directly or indirectly causes PHS to have any license, permit or other
authorization necessary for the operations of its business (a "License")
to be suspended or revoked, (v) PHS has received any notice from any
governmental or other agency which regulates the operations of PHS
which indicates that Xxxxxx'x employment with PHS could have an adverse
effect on the ability of PHS to retain or obtain any License or to
otherwise conduct its operations in the manner then conducted, (vi)
Xxxxxx has materially (defined as not meeting at least 75% of the
Objectives) failed to achieve the objectives of the Business Plan
attached hereto as exhibit A.
11. DISABILITY; DEATH.
(a) If, during the Term, Xxxxxx becomes physically or mentally
disabled, whether by injury, illness or otherwise, so that she is
unable to perform her duties for a period of 90 days in any 180
day period, then PHS may, at its option, terminate this Agreement
upon ten days' written notice to Xxxxxx without further
obligation.
(b) In the event of Xxxxxx'x death during the Term, this Agreement
shall terminate and be of no further force and effect, provided
that Xxxxxx shall be entitled to all salary and other benefits to
which she is entitled through her date of death.
12. AUTHORITY; NO CONFLICT. Xxxxxx represents and warrants to PHS that (a)
she has the full power and authority to enter into this Agreement and to
perform her obligations hereunder, and (b) the execution, delivery and
performance by Xxxxxx of this Agreement will not (i) violate, conflict
with, or result in a breach of any contract or other agreement by which
Xxxxxx is bound, (ii) require Xxxxxx to obtain the consent of, or give
any notice to, or make any filing with, any Federal, state, or local
government, or any agency thereof (a "Governmental Body"), or any other
third person, or (iii) violate any law, statute or other requirement of
any Governmental Body.
13. EQUITABLE RELIEF AND OTHER REMEDIES. Xxxxxx acknowledges that any breach
by Xxxxxx of any of the Restrictive Covenants will result in irreparable
injury to PHS, for which money damages could not provide adequate
compensation. In the event of any such breach, PHS shall be entitled,
in addition to all other rights and remedies which PHS may have at law
or in equity, to have an injunction issued by any competent court
enjoining and restraining Xxxxxx and all other persons involved therein
from continuing such breach. PHS shall be entitled to such injunction
without the necessity of posting any bond, but if a bond is nonetheless
required by the court entertaining the motion for injunction, the
parties hereto agree that a bond in the amount of $1,000.00 is
appropriate. The existence of any claim or cause of action which
Xxxxxx, or any other person, may have against PHS or Preferred shall not
constitute a defense or bar to the enforcement of any of
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the Restrictive Covenants. If PHS resorts to litigation to enforce any
of the Restrictive Covenants which has a fixed term, then such term
shall be extended for a period of time equal to the period of such
breach, beginning on the date of a final court order (without further
right of appeal) acknowledging the validity of such Restrictive Covenant
or, if later, the last day of the original fixed term of the Restrictive
Covenant.
14. ACKNOWLEDGEMENTS BY XXXXXX. Xxxxxx acknowledges and confirms that the
length of the term of the Restrictive Covenants and the geographical
restrictions contained therein are fair and reasonable and are not the
result of overreaching, duress or coercion of any kind. Xxxxxx further
acknowledges and confirms that the full, uninhibited and faithful
observance of each of the Restrictive Covenants contained in this
Agreement shall not cause any undue hardship, financial or otherwise.
Xxxxxx acknowledges and confirms that her special knowledge of the
Confidential Information and Trade Secrets of NET and PHS is such as
would cause PHS serious injury and loss if she was to use such knowledge
for the benefit of a competitor of PHS or were to compete with PHS.
15. NONDISPARAGEMENT. Xxxxxx agrees not to engage in any conduct that is
injurious to the reputation or interest of Preferred, including but not
limited to disparaging (or inducing or encouraging others to disparage)
Preferred or its officers, directors, employees or shareholders. As
used herein, the term "disparage" includes, without limitation, comments
or statements to the press, any of Preferred's employees or any person
with whom Preferred has a business relationship which would adversely
affect in any manner the reputation of Preferred or any of its officers,
directors, employees or shareholders.
16. INTELLECTUAL PROPERTY AS SOLE PROPERTY OF THE COMPANY. (a) Xxxxxx
agrees promptly to disclose to PHS any and all intellectual property,
computer software, discoveries, improvements, trade secrets, formulas,
techniques, processes, and know-how, whether or not patentable and
whether or not reduced to practice, conceived or learned by her during
the period of her employment, either alone or jointly with others, which
relate to or result from the actual or anticipated business, work,
research or investigations of NET or PHS, or which result, to any
extent, from use of NET or PHS's premises or property (the work being
hereinafter collectively referred to as the "Intellectual Property").
(b) Xxxxxx acknowledges and agrees that all the Intellectual
Property shall be the sole property of PHS, and she hereby assigns to
PHS her entire right of interest in and to all the Intellectual
Property. PHS shall be the sole owner of all domestic and foreign
rights pertaining to the Intellectual Property. Xxxxxx further agrees
as to all the Intellectual Property to assist PHS in every way (at PHS's
expense) to obtain and from time to time enforce patents on the
Intellectual Property in any and all countries. To that end, by way of
illustration but not limitation, Xxxxxx will testify in any suit or
other proceeding involving any of the Intellectual Property, execute all
documents which PHS reasonably determines to
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be necessary or convenient for use in applying for and obtaining patents
thereon and enforcing same, and execute all necessary assignments
thereof to PHS or persons designated by it. Xxxxxx'x obligation to
assist PHS in obtaining and enforcing patents for the Intellectual
Property shall continue beyond the termination of her employment, but
PHS agrees to compensate Xxxxxx at a reasonable rate after such
termination for the time actually spent by Xxxxxx at PHS's request on
such assistance.
(c) All inventions, if any, which Xxxxxx made prior to her
employment by NET or PHS, all of which are set forth as Exhibit C
attached hereto, are excluded from the scope of this Agreement. Xxxxxx
represents and warrants that Exhibit C sets forth a complete list of all
Intellectual Property, discoveries, or improvements which have been made
by Xxxxxx prior to her employment with PHS.
17. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior negotiations,
understandings, agreements, arrangements and understandings, both
oral and written, between the parties hereto with respect to such
subject matter.
(b) AMENDMENT. This Agreement may not be amended or modified in any
respect, except by the mutual written agreement of the parties
hereto.
(c) WAIVERS AND REMEDIES. The waiver by any of the parties hereto of
any other party's prompt and complete performance, or breach or
violation, of any provision of this Agreement shall not operate
nor be construed as a waiver of any subsequent breach or
violation, and the failure by any of the parties hereto to
exercise any right or remedy which it may possess hereunder shall
not operate nor be construed as a bar to the exercise of such
right or remedy by such party upon the occurrence of any
subsequent breach or violation.
(d) DESCRIPTIVE HEADINGS. Descriptive headings contained herein are
for convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the separate parties hereto in separate
counterparts, each of which shall be deemed to be one and the
same instrument.
(f) NOTICES. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all
legal process in regard hereto shall be in writing and shall be
deemed to have been duly given, when delivered by hand or Federal
Express or (2) days after deposited in the
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United States mail, by registered or certified mail, return
receipt requested, postage prepaid, as follows:
If to PHS, one copy to:
Preferred Healthcare Staffing, Inc.
00000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Mr. Xxx Xxxxxx
With a copy to:
Preferred Healthcare Staffing, Inc.
00000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
If to Xxxxxx, one copy to:
Xx. Xxxxxx Xxxxxx-Xxxxxxxx
0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Or to such other address as any party hereto may from time to time
designate in writing delivered in a like manner.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective personal representatives, heirs, successors and
assigns.
(h) APPLICABLE LAW. This Agreement shall be governed by, and shall
be construed, interpreted and enforced in accordance with, the
laws of the State of Florida without regard to its conflict of
laws principles to the extent that such principles would require
the application of laws other than the State of Florida.
(i) CONSENT TO JURISDICTION. Each of the parties hereto irrevocably
consents to the exclusive jurisdiction of the federal and state
courts located in Dade County, Florida in any and all actions
between or among any of the parties hereto, whether arising
hereunder or otherwise.
(j) ATTORNEYS' Fees. If any legal action is brought for the
enforcement of any of the provisions of this Agreement, the
prevailing party shall be entitled to recover upon final
judgement on the merits reasonable attorneys' fees (including
attorneys' fees for any appeal) incurred in bringing such action.
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IN WITNESS WHEREOF, the parties hereto have placed their hands as of
the day and year first above written.
PREFERRED HEALTHCARE STAFFING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name:
Title:
By: /s/ Xxxxxx Xxxxxx-Xxxxxxxx
--------------------------------
Xxxxxx Xxxxxx-Xxxxxxxx
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