EXHIBIT 10.1
STAFF BUILDERS, INC.
EMPLOYMENT AGREEMENT WITH XXXX XXXXX
AGREEMENT executed as of June 1, 1997 between Xxxx Xxxxx,
residing at 00 Xxxxxx Xxxx, Xxxxxx Xxxx, XX 00000 ("Employee"), and
STAFF BUILDERS, INC. ("Company"), a Delaware corporation, having
its principal place of business at 0000 Xxxxxx Xxxxxx, Xxxx
Xxxxxxx, Xxx Xxxx 00000.
WITNESSETH
WHEREAS, the Company desires to continue to employ Xxxx Xxxxx as
its Senior Vice President of Finance and Chief Financial Officer of
the Company; and
WHEREAS, the Company and Employee desire to assure the continued
service of Employee to the Company on the terms and conditions set
forth below.
NOW, THEREFORE, in consideration of the premises and mutual
agreements hereinafter contained, the parties hereto do agree as
follows:
1. Employment. The Company and Employee hereby agree to
extend the Employee's employment relationship with the Company on
all the terms and conditions set forth in this Agreement.
2. Term. The term of Employee's employment under this
Agreement shall commence effective as of June 1, 1997 and, subject
to the terms and conditions of this Agreement, shall continue for
a period of thirty-six (36) consecutive months.
3. Compensation.
(a) The Company shall pay to Employee, for all services
rendered by Employee under this Agreement, a base salary at the
rate of $171,076 per year ("Base Salary") payable in equal
installments (not less frequently than monthly) in accordance with
the Company's regular payroll practices. On each July 15th during
the term hereof, the Base Salary shall be automatically increased
by five percent (5%). The Company may also pay or grant Employee
such additional compensation, including bonuses, determined in
accordance with paragraphs 3(b) and (c) hereof. Such Base Salary
may also be increased by and subject to the discretion of the
Company at any time during the term hereof.
(b) The Company may, by action of the Incentive
Bonus Committee appointed by the Board of Directors, from time to
time grant Employee additional compensation In the form of cash
bonuses pursuant to the Company's Incentive Bonus Plan for Key
Employees ("Bonus Plan").
(c) The Company shall pay to Employee, during the
thirty-six (36) month term of this Agreement, a car allowance at
the rate of $500 per month.
4. Duties. Employee is engaged to serve as Senior Vice
President of Finance and Chief Financial Officer of the Company,
and shall perform such duties and functions as is compatible with
that position as the Company from time to time may determine.
During the term of this Agreement, Employee shall devote his full
business time to the performance of his duties for the Company and
shall perform them diligently, faithfully and competently.
5. Expenses. Employee is authorized to incur expenses for
promotion the business of the Company which are reasonable and
necessary in the exercise of his duties, including reasonable
expenses for entertainment, travel and similar items. The Company
shall reimburse Employee promptly for all such expenses upon
presentation by Employee of an itemized account of expenditures.
6. Vacation. The Employee is entitled to three (3) weeks
annual vacation. If the vacation time is not used within the
annual period, the Employee will not be entitled to carry over the
unused vacation time unless the Company, within its complete
discretion, approves of such carry over.
7. Welfare Benefits. Employee shall be entitled to receive
or participate in all benefits, such as life, health, medical and
disability plans, profit sharing plans, pension plans and the like
("Welfare Plans"), which the Company may make generally available
to its senior executive employees. Employee shall be entitled to
the above-described benefits so long as Employee serves as an
employee of the Company, or as otherwise provided by the terms and
conditions of the Welfare.
8. Change of Control. In the event that at any time after
a Change of Control (as defined below) but prior to the end of
twelve months after such Change of Control, Employee is discharged
for any reason (other than the conviction of a felony) or leaves
for any reason, Employee shall receive within thirty (30) days
after such discharge a lump sum severance payment equal to 2.99
time the "average annual base salary" paid to him. For the
purposes of this Section 8, "average annual base salary" shall mean
the average of Employee's annual income in the nature of
compensation payable by the Company and includible in gross income
over the five most recent taxable years ending before the Change of
Control. In the event a Change in Control occurs prior to the
completion of five years employment, the average annual
compensation will be calculated based upon the earnings for
calendar 1996 and any future completed calendar years.
A "Change of Control" shall be deemed to occur when a person,
corporation, partnership, association or entity (x) acquires a
majority of the Company's outstanding voting securities, or (y)
acquires securities of the Company bearing a majority of voting
power with respect to election of directors of the Company, or (z)
acquires all or substantially all of the Company's assets.
9. Termination Rights and Obligations Upon Termination
(a) If the Executive dies during the Term, then the
Executive's employment under this Agreement shall terminate. In
such event, the Executive's estate shall not be entitled to any
compensation, profit sharing payments under the Plan or expense
payments hereunder other than for compensation, profit sharing
payments under the Plan, and expenses accrued and unpaid as at the
date of the Executive's death.
(b) If, as a result of the Executive's incapacity due to
physical or mental illness, whether or not job related, the
Executive is absent from his duties hereunder on a full-time basis
for sixty (60) consecutive days, or an aggregate of ninety (90)
days during the Term, the Executive's employment hereunder and this
Agreement shall terminate. In such event, the Executive shall not
be entitled to any compensation, profit sharing payments under the
Plan, or expense payments hereunder other than for compensation,
profit sharing payments under the Plan, and expenses accrued and
unpaid as at the date of termination of the Executive's employment.
(c) The Corporation shall have the right to terminate
the Executive's employment under this Agreement for Cause. For
purposes of the Agreement, the Corporation shall have "Cause" to
terminate the Executive's employment if (i) the Executive assigns,
pledges, or otherwise disposes of his rights and obligations under
this Agreement, o0attempts to do the same without the prior written
consent of the Corporation; or (ii) in the reasonable judgment of
the Corporation's Board of Directors the Executive fails to fulfill
his obligation under this Agreement, has breached any of the
material terms or conditions hereof, has engaged in willful
misconduct or has acted in bad faith; or OH) without limiting any
other provision of this Agreement, in the reasonable judgment of
the Board of Directors of the Corporation, the Executive has
breached any provision of Sections 8 or 9 of this Agreement; or
(iv) the Executive has committed a felony or perpetrated a common-
law fraud against the Corporation. If the Corporation terminates
this Agreement for Cause, the Corporation's obligations hereunder
shall cease, except for the Corporations obligation to pay the
Executive or his beneficiary the compensation, profit sharing
payments under the Plan and expenses accrued to the date of
termination in accordance with the provisions hereof, which
payments in all events shall be subject to offset by the
Corporation for amounts owed to the Corporation by the Executive
hereunder or otherwise.
10. Non-Competition.
(a) During the Term, and for a period of one (1) year
from the termination of this Agreement, the Executive shall not,
directly or indirectly, for his own account or as an employee,
officer, director, partner, joint venturer, shareholder, investor
or otherwise engage in the Area( as hereafter defined) in any phase
of any business or enterprise the same as that of the Corporation
or any of its direct or indirect subsidiaries or otherwise compete
in the Area with the Corporation or any of its direct or indirect
subsidiaries, in any business in which the Corporation or any of
its direct or indirect subsidiaries is then engaged or which any of
them then is actively developing or had developed as of the
effective date of this Agreement; except that nothing in this
Agreement shall prevent the Executive from owning less than 3% of
the outstanding stock of any class of any corporation provided such
stock is listed on a national securities exchange or regularly
traded in the over-the-counter market by a member of the National
Association of Securities Dealers, Inc. For purposes of this
Agreement, the term "Area" shall mean the fifty (50) mile radius
surrounding each of the offices of the Corporation and each of its
direct and indirect subsidiaries.
(b) During the Term and for a period of one (1) year
from the termination of this Agreement, the Executive shall not,
directly or indirectly, for his own account or as an employee,
officer, director, partner, joint venturer, shareholder, investor
or otherwise solicit the employment or engagement, nor hire
directly or indirectly, any employees of the Corporation or any of
its direct or indirect subsidiaries in any capacity whatsoever, nor
attempt to induce, directly or indirectly, any employee of the
Corporation or any of its direct or indirect subsidiaries to leave
the employ of the Corporation or any of its direct or indirect
subsidiaries.
11. Confidentiality. The Executive covenants and agrees that
during the Term of and at any time after the termination of this
Agreement, he will not directly or indirectly, for his own account
or as an employee, officer, director, partner, joint venturer,
shareholder, investor or otherwise disclose to others to do the
same, any proprietary, confidentially or secret information or
documents of the Corporation or any of its direct or indirect
subsidiaries, including, but not limited to, any customer lists,
project proposals, other work products records and business plans
of the Corporation or any of its direct or indirect subsidiaries,
but not limited to, any customer lists, projected proposals, other
work product records and business plans of the Corporation or any
of its direct or indirect subsidiaries, other than the performance
of his duties hereunder or if such information is readily
ascertainable from public or published information or trade
sources.
12. Arbitration. The Employee and Company hereby agree that
if any dispute arises between them, such dispute shall be
determined by arbitration in the State of New York in accordance
with the rules of the American Arbitration Association then in
effect. The award rendered by such arbitration shall be final and
binding upon the parties hereto, and a judgment upon the award so
rendered may be entered in any court of competent jurisdiction.
13. Waiver. Failure to insist upon compliance with any of
the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver
or relinquishment of any right or power hereunder at any one time
or more times be deemed a waiver or relinquishment of such right or
power at any other time or times.
14. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or
enforceability of any other provision. The parties to this
Agreement agree and intend that this Agreement shall be enforced as
fully as it may be enforced consistent with applicable statutes and
rules of law.
15. Benefit. Except as otherwise herein expressly provided,
this Agreement shall insure to the benefit of and be binding upon
the Company, its successors and assigns, including, without
limitation, any corporation which may acquire all or substantially
all of the Company's assets or business or with or into which the
Company may be consolidated or merged, and to the benefit of, and
be binding upon, Employee, his heirs executors, administrators and
legal representatives.
16. Entire Agreement. This Agreement constitutes the entire
understanding and agreement between the parties hereto, supersedes
any and all prior discussions, agreements and correspondence with
regard to the subject matter hereof, and may be amended, modified
or supplemented in any respect, except by a subsequent writing
executed by both parties hereto.
17. Applicable Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
New York, without giving effect to principles of conflicts.
18. Remedy for Breach. Any action to enforce, arising out
of, or relating in any way to, any of the provisions of this
Agreement shall be an action at law pursuant to the provisions of
Section 12 of this Agreement.
19. Notices. All notices required hereby or given under this
Agreement shall be in writing and shall be served either personally
or be certified mail, return receipt requested, at the following
addresses, or at such other address as the parties may designate to
one another in writing:
To the Company: Staff Builders, Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
To the Employee: Xxxx Xxxxx
00 Xxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
All notices shall be deemed given when so received. All change of
address notices shall be given in the same manner as provided
above.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the 25th day of June, 1997.
In the presence of: STAFF BUILDERS, INC.
/s/Xxxxx Silver, Esquire By:/s/ Xxxxx Xxxxxxxx
Xxxxx Silver, Esquire Xxxxxxx Xxxxxxxx
/s/Xxxx Xxxxx
Xxxx Xxxxx
