1
EXHIBIT 10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement") is entered
into effective January 7, 1998 by and between REMEDYTEMP, INC., a California
corporation (the "Company"), and Xxxx X. Xxxxx, an individual person ("Xxxxx"),
(collectively referred to herein as the "Parties").
WHEREAS, an Employment Agreement was entered into effective May 1, 1996
by and between the Company and Xxxxx (the "Original Agreement");
WHEREAS, this Agreement has been prepared to amend and restate the
Original Agreement pursuant to the approval, direction and authorization of the
Leadership Development and Compensation Committee of the Board of Directors of
the Company (the "Compensation Committee"); and
WHEREAS, the Company desires to maintain the benefits of having Xxxxx
continue to serve as its President and Chief Executive Officer and Xxxxx desires
to be employed by the Company as President and Chief Executive Officer.
NOW, THEREFORE, in consideration of the foregoing promises and mutual
covenants, the Parties hereby amend and restate the Original Agreement and agree
to the following terms and conditions under which Xxxxx will serve as the
Company's Chief Executive Officer and President:
1. EMPLOYMENT SERVICES AND DUTIES
The Company agrees to employ and retain the services of Xxxxx as its
President and Chief Executive Officer, and Xxxxx hereby agrees to be employed by
the Company as its President and Chief Executive Officer. Xxxxx'x duties and
obligations as President and Chief Executive Officer shall be: (i) to implement
the policies determined by the Board of Directors of the Company; (ii) to
generally manage the day-to-day business of the Company; and (iii) to prepare
the Company for public offerings of its stock. Xxxxx agrees to perform his
duties faithfully, to the best of his ability and in the best interests of the
Company, to preserve and protect the confidential information of the Company,
and to perform both his regular duties and strategic projects as requested by
the Board of Directors. As President and Chief Executive Officer, Xxxxx shall
report directly to the Company's Board of Directors.
2. TERM OF EMPLOYMENT
Subject to the terms and conditions of this Agreement, the Company
agrees to employ, and Xxxxx agrees to serve as President and Chief Executive
Officer of the Company for three (3) years commencing on May 1, 1996 and ending
on May 1, 1999 (the "Employment Period").
3. COMPENSATION TERMS
The Company agrees to compensate Xxxxx for his services rendered as
President and Chief Executive Officer under this Agreement as follows:
(a) Xxxxx shall receive a base salary set annually by the
Compensation Committee; provided, however that Xxxxx'x annual base salary shall
not be less than $390,000 per year, payable semi-monthly. In addition, Xxxxx
shall be entitled to
2
earn an annual performance bonus in an amount to be determined by the
Compensation Committee based on Xxxxx'x satisfaction of certain performance
goals set annually by the Compensation Committee. The amount of the annual bonus
paid to Xxxxx shall not exceed 100% of his base salary in any particular year.
(b) During the Employment Period, Xxxxx shall be entitled to and
shall receive the same employee benefits package that Xxxxx received as an
executive officer of the Company immediately prior to the date of this
Agreement, including, without limitation, all health, life and disability
insurance and all policies or agreements providing for indemnification.
4. TERMINATION AND SEVERANCE PACKAGE
The Board of Directors of the Company may terminate Xxxxx'x employment
with the Company, with or without cause, at any time upon notice to Xxxxx. Xxxxx
may terminate his employment with the Company at any time upon notice to the
Company's Board of Directors. Upon the termination by the Company of Xxxxx'x
employment with the Company, the Company shall offer Xxxxx the following
severance package; provided Xxxxx agrees to the following terms:
(a) For a period of two (2) years after his termination, Xxxxx
shall receive an annual compensation of Three Hundred Ninety Thousand Dollars
($390,000) per year, payable semi-monthly (the "Severance Payments").
(b) In consideration for the agreements set forth herein and the
Severance Payments, Xxxxx shall, upon the termination of his employment, execute
a release of the Company, the Board of Directors of the Company, and all
officers, employees and agents of the Company from any and all claims,
liabilities, actions, causes of action, obligations, costs, damages, losses and
demands of every kind and nature whatsoever known or unknown, which arise out
of, relate to or are in any manner whatsoever connected with any action,
transaction, occurrence or event which has occurred prior to the date of the
release and those which may arise out of or are in any manner whatsoever
connected with or related to the termination of Xxxxx'x employment with the
Company. Such release shall include a waiver of all rights granted under Section
1542 of the California Civil Code which reads as follows: A general release does
not extend to claims which the creditor does not know or suspect to exist in his
favor at the time of executing the release, which, if known by him must have
materially affected his settlement with the debtor. Cal. Civ. Code Section 1542.
(c) In consideration of the agreements set forth herein and the
Severance Payments, Xxxxx agrees that upon termination of his employment with
the Company he shall resign as a Director of the Board of Directors of the
Company.
5. NONDISCLOSURE
Xxxxx shall at all times keep confidential and maintain the
confidentiality of all proprietary information, confidential information, and/or
trade secrets of the Company, including but not limited to customer lists, the
EDGE system, HPT, and IntelliSearch ("Proprietary Information"), and shall not,
unless the Company's prior written consent is obtained, at any time after the
date hereof, either directly or indirectly, use any Proprietary Information for
his own benefit, or in competition with, or to the detriment of the Company, or
divulge, disclose, or communicate any Proprietary Information to any person or
entity in any manner whatsoever, except to employees or agents of the Company
having a need to know such Proprietary Information, and only to the extent
necessary to perform his responsibilities on behalf of the Company. In addition,
2
3
for a period of two (2) years after the termination of his employment with the
Company, Xxxxx shall not solicit employees or customers of the Company in any
geographical location where the Company conducts business.
6. REGISTRATION EXPENSES
To the extent that Xxxxx is permitted to sell stock in the Company owned
by him individually or in a fiduciary capacity (collectively, the "Xxxxx Stock")
in a public offering of stock by the Company, all expenses incurred in effecting
any registration of such Xxxxx Stock, including, all registration and filing
fees, printing expenses, expenses of compliance with blue sky laws, fees and
disbursements of counsel for the Company, expenses of any audits incidental to
or required by any such registration, and expenses of all marketing and
promotional efforts requested by the managing underwriter shall be borne by the
Company; provided, however, that Xxxxx shall bear underwriting discounts and/or
brokerage fees and commissions relating to the sale of the Xxxxx Stock.
7. SEVERABILITY
The provisions of this Agreement are severable. If a court of competent
jurisdiction determines that any one or more provisions of this Agreement is
invalid, void or unenforceable, in whole or in part, it will be severed
therefrom. The remaining provisions of this Agreement shall then continue in
full force without being impaired or invalidated in any way.
8. NO ASSIGNMENT
The parties acknowledge and agree that this Agreement is personal in
nature and may not be assigned by Xxxxx.
9. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the parties
concerning the subject matter hereof. This Agreement supersedes all
negotiations, prior discussions and preliminary agreements. This Agreement may
not be amended except in a writing executed by the parties.
10. GOVERNING LAW AND ARBITRATION
This Agreement shall be governed by and construed in accordance with the
laws of the State of California and the parties agree that the venue for the
resolution of all disputes hereunder shall be in the appropriate courts in the
County of Orange, California.
11. NOTICES
All notices, requests, demands and other communication required or
contemplated under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered personally or when enclosed in a properly
sealed and addressed envelope, registered or certified, and deposited (postage
prepaid) in a post office or branch post office regularly maintained by the
United States Government.
Any notice given to the Company under the terms of this Agreement shall
be addressed to the Company at the address of its principal place of business.
Any notice to be given to Xxxxx shall be addressed to him at his home address
last shown on the Company's records, or at such other address as either party
may hereafter designate in writing to the other.
3
4
IN WITNESS WHEREOF, the parties have duly executed this
Agreement effective as of January 7, 1998.
REMEDYTEMP, INC., a California
Corporation
By:___________________________
Name:________________________
Its:___________________________
------------------------------
Xxxx X. Xxxxx
4
