EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
March 3, 1997, by and between OutSource International, Inc., a Florida
corporation (the "Company"), and Xxxxxx X. Xxxxxxx, Executive Vice President
("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 Executive Vice President of the Company upon the terms
subject to this Agreement.
2. TERM. The term ("Term") of this Agreement shall commence on March 3,
1997 and shall continue until terminated in accordance with the terms hereof.
3. DUTIES. During his employment hereunder, Employee will serve as the
Executive Vice President of the Company. Employee shall report directly to the
President of the Company and shall serve at his direction. Employee shall
perform services as assigned by the President of the Company consistent with the
title of Executive Vice President. 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; provided that such service does not conflict with the
duties of Employee hereunder or result in a conflict of interest.
4. COMPENSATION.
a. SALARY. During his employment hereunder, Employee shall be paid an
initial salary of $145,000 per year, payable in equal installments not less
than monthly ("Base Salary"). The Employee's Base 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 Base Salary, Employee shall be entitled to
participate in the Company's Stock Option Plan, as amended and restated
(the "Stock Option Plan") and, in addition, to participate in a Management
Bonus Program to be established by the Company with an initial targeted
bonus for calendar year 1997 of $58,000 for Employee, based upon the
achievement of mutually agreed upon goals and objectives (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 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 written 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 travel and
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
any reason at any time including, without limitation, 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, 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
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addiction to any drug or chemical; (vii) Employee's insubordination unless
resulting from Employee's refusal to do an illegal act; (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 completely 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 here.
6. TERMINATION BY EMPLOYEE.
Employee may terminate this Agreement with Good Reason. "Good Reason"
means:
a. 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;
b. The Company decreases the Employee's compensation below the levels
provided for by the terms of Section 4 (taking into account increases made
from time to time in accordance with Section 4);
c. A material breach of the provisions of this Agreement by the Company
(except those set forth in Paragraph ) 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 or if the Company is
in good faith attempting to cure such breach);
d. The failure of the Company to comply with the provisions of
Paragraph for an uninterrupted 10 day period; or
e. 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.
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7. PAYMENT AND OTHER PROVISIONS UPON TERMINATION.
a. In the event that: Employee's employment with the Company (including
its subsidiaries) is terminated by the Company for Cause as provided in
Paragraph ; or Employee terminates his employment without Good Reason as
described in Paragraph ; then, on or before Employee's last day of
employment with the Company:
i. SALARY AND BONUS PAYMENTS: The Company shall pay in a lump sum
to Employee such amount of compensation due to Employee hereunder for
services rendered to the Company, as well as compensation for unused
vacation time, as has accrued but remains unpaid. 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 shall continue to apply with respect to Employee for a period
of one year following the date of termination.
b. In the event that: 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 and other than as a consequence of
Employee's death, disability, or normal retirement under the Company's
retirement plans and practices; or Employee terminates his employment with
Good Reason as described in Paragraph ; then:
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) the amount of Employee's Base Salary and (y) ninety
percent of the amount of the estimated target bonus under the
Management Bonus Program as in effect immediately prior to his date of
termination (the "Cash Amount"). 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 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.
Notwithstanding the foregoing sentence, the entire Cash Amount shall be
paid to Employee during the period not to exceed one year following
Employee's last day of employment with the Company. No interest shall
be paid with respect to any of the Cash Amount not paid on the
Employee's date of termination.
ii. 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
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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 one year 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, or, at the Company's option, a lump sum payment to
Employee equal to the Company's cost immediately prior to termination
to provide such benefits. 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.ii, all benefits in this Paragraph 7.b.ii 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.ii
prior to his termination, he shall continue to contribute such amounts
for such time as these benefits continue in effect after termination.
iii.[INTENTIONALLY OMITTED]
iv. 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.
v. NONCOMPETITION/NONSOLICITATION PERIOD. The provisions of
Paragraph shall continue, beyond the time periods set forth in such
paragraph, to apply with respect to Employee for the shorter of (x)
twelve months following the date of termination or (y) until such time
as the Company has failed to comply with the provisions of Paragraph
for a an uninterrupted 10-day period and such failure 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. In the event that Employee terminates his employment with Good
Reason as described in Paragraph , the following provisions shall also
apply.
i. EXERCISABILITY OF STOCK OPTIONS. Notwithstanding the vesting
period provided for in the Stock Option Plan and any related stock
option agreements between the Company and Employee for stock options
("options") and stock appreciation rights ("rights")
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granted Employee by the Company, all options and stock appreciation
rights shall be immediately exercisable upon termination of employment.
In addition, Employee will have the right to exercise all options and
rights for the shorter of (x) one year following his termination of
employment or (y) with respect to each option, the remainder of the
period of exercisability under the terms of the appropriate documents
that grant such options.
d. The provisions of this Paragraph shall apply if Employee's
employment is terminated prior to or more than two years after the
occurrence of a Change of Control (as defined in Paragraph ). From the
occurrence of any Change of Control until the second anniversary of such
Change of Control, the provisions of Paragraph shall apply in place of this
Paragraph , EXCEPT THAT in the event that after a Change of Control
Employee's employment is terminated by Employee without Good Reason or
Company terminates Employee for Cause, then the provisions of Paragraph
shall not apply and the provisions of Paragraph shall apply. Termination
upon death, disability and retirement are covered by Paragraphs , , and ,
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 two 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 for
any reason other than for Cause or (z) by Employee with Good Reason as
provided in Paragraph , then Employee shall be entitled to receive from the
Company, the following:
i. BASE SALARY. Employee's 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
estimated 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 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.[OMITTED INTENTIONALLY]
iv. OTHER BENEFITS. All benefits under Paragraphs 7.b.ii, and
7.c.i shall be extended to Employee as described in such paragraphs.
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 Paragraph 14 shall continue to apply as stated in paragraph
7.b.v.
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c. For purposes of this Agreement, the term "Change of Control" shall
mean:
i. The acquisition, other than from the Company, by any
individual, entity or group (within the meaning of ss. 13(d)(3) or ss.
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 hereafter a "Person") of 33% 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 13d-1(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 33% 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. 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 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); or
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
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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 that portion of Base Salary as has accrued but
remains unpaid and a prorated amount of targeted bonus under the Company's
Management Bonus Program through the month in which his death occurs, plus three
additional months of the fixed salary and targeted bonus. 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.iv and 7.c.i 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.ii for three 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 that portion of Base
Salary as has accrued but remains unpaid as of the thirtieth (30th) day after
such notice is given EXCEPT that all benefits under Paragraphs , and 7.c.i shall
be extended to Employee as described in such paragraphs, PROVIDED, HOWEVER,
that, with respect to Paragraph , 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 Paragraph 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, as a result of
Employee's incapacity due to physical or mental illness:
a. Employee shall have been absent from his duties as an officer of the
Company on a substantially full-time basis for six (6) consecutive months;
and
b. Within thirty (30) 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.
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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. [INTENTIONALLY OMITTED]
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
(the "Noncompetition and Nonsolicitation Period") 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 nationwide;
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, firms,
corporations or other entities unaffiliated with the Company, for
any reason or purpose whatsoever;
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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 ("Competition") within
a radius of fifty (50) miles from Employee's principal office.
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 judicially determined to be
unreasonable, the parties agree that these restrictions shall be judicially
reformed to the maximum restrictions which are reasonable.
e. Notwithstanding anything to the contrary contained herein, in the
event that Employee engages in Competition, or any conduct expressly prohibited
by this Paragraph 14 at any time during the Noncompetition and Nonsolicitation
Period for any reason whatsoever, Employee shall not receive any of the
termination benefits he otherwise would be entitled to receive pursuant to
Paragraphs 7.b., 7.c., 8.a. and 10 hereof.
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.
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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 or 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 hereof, the Company may set off 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
or 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.
The foregoing sentence shall not be deemed to have any effect upon the rights of
Employee upon a Change of Control.
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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: General Counsel
To Employee: Xxxxxx X. Xxxxxxx
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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.
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 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 shall constitute the
sole and exclusive remedies of Employee. This Paragraph 25 shall have no effect
upon the provisions of Paragraph 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:
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Its:
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EMPLOYEE:
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Name: Xxxxxx X. Xxxxxxx
13
