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EXHIBIT 10.23
REMEDYTEMP, INC.
00000 XXXXXX XXXXXXXXXX
XXX XXXX XXXXXXXXXX, XXXXXXXXXX 00000
December 16, 1997
Mr. Xxxx Xxxxxx
00000 Xxxxxx Xxx Xxxx
Xxxxxx Xxxxx, XX 00000
Dear Xxxx:
I am delighted to confirm the agreement between you and RemedyTemp,
Inc. (the "Company") as to the terms of your employment with the Company. Those
terms are as follows:
1. POSITION. You will be employed as the Chief Operating Officer of the
Company, subject to the direction, control of, and reporting to, the Chief
Executive Officer of the Company. You agree to devote your full business time
and energies to the business and affairs of the Company, to use your best
efforts, skill and abilities to promote the Company's interests and to perform
your duties in accordance with policies, standards and practices established
from time to time by the Chief Executive Officer, the Board of Directors or a
committee thereof. Your duties may also include serving as an officer and/or
director of any subsidiaries or other affiliates of the Company as reasonably
requested. While employed by the Company, you agree that you will not render
services to others or engage in any other activities that would interfere with
or prevent your fulfilling your obligations to the Company. You agree that you
will not serve on any boards of directors without the prior written approval of
the Company's Board of Directors.
2. BASE SALARY. Your base salary will be at the annual rate of $325,000
per annum. Your effective start date will be on or about January 1, 1998 but no
later than January 12, 1998 (the "Start Date"). Your salary will be payable on
the same date as salaries to other executives of the Company are paid. The
amount of your base salary may be increased annually at the discretion of the
Compensation Committee of the Board of Directors.
3. INCENTIVE COMPENSATION. In addition to your base salary, you will be
paid a cash bonus within one hundred (100) days after the end of each full
fiscal year of the Company in an amount to be determined by the Compensation
Committee of the Board of Directors; provided, however, that there will be a
maximum bonus level of 100% of your base salary with no minimum bonus level. The
exact amount of your bonus will be based upon two factors: (1) the same
objective Company financial criteria applied to determine the bonus for the
Chief Executive Officer; and (2) the MBO objectives established by the Chief
Executive Officer.
4. EQUITY PARTICIPATION.
4.1. INITIAL GRANT. Before or on the Start Date, the Board of
Directors or Compensation Committee will grant to you an initial option grant
(the "Initial Option") to
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purchase 125,000 shares of the Company's Class A Common Stock ("Common Stock")
at an exercise price equal to the fair market value of the shares on the date of
grant. The grant of the Initial Option is subject to shareholder approval. The
Initial Option will vest and become exercisable at a rate of twenty percent
(20%) per year over a five (5) year period with the first twenty percent (20%)
becoming first exercisable twelve (12) months from the grant date. The Initial
Option, once vested, will be exercisable until the tenth anniversary from the
date of grant. Unless specifically provided for herein, other terms and
conditions will be the same as those for options under the Company's stock
option plan.
4.2. ADDITIONAL GRANTS. At the first meeting of the Compensation
Committee of the Board of Directors after the end of each fiscal year, you will
receive a regular annual grant of an option to purchase 50,000 shares of Common
Stock, which shall be vested in accordance with the vesting schedule (but no
longer than five (5) years) adopted by the Compensation Committee for all
executive officers who receive options at that time, or pursuant to the
direction of the Compensation Committee if no other options are awarded. The
options, once vested, will be exercisable until the tenth anniversary from the
date of grant. Other terms and conditions will be governed by the Company's
stock option plan.
4.3. OPTIONS UPON TERMINATION. If the Company terminates your
employment without cause, your severance benefits (including vesting of options)
will be governed by Section 8 and Section 9 of this letter agreement. If the
Company terminates your employment "for cause," as defined in Section 8, then
all of your unexercised options, whether or not vested, shall expire and become
unexercisable as of the date of such "for cause" termination.
In order to permit a so called "cashless exercise" of your option,
the Company will cooperate with you to permit you to exercise the option (to the
extent it is then exercisable), immediately sell the shares and apply the
proceeds of sale to the exercise price but only to the extent the Company can do
so without violating any applicable provision of law and only if the shares
purchased are at the time registered under the Securities Act of 1933 and can be
sold by you under Rule 144 of the Securities and Exchange Commission or any
successor provision.
5. INDEMNIFICATION. The Company will enter into its customary form of
indemnification agreement applicable to directors and executive officers of the
Company and will also indemnify you for losses relating to claims against you by
your former employer in connection with your non-compete agreement with your
former employer.
6. PERQUISITES. The Company will provide you with a monthly car
allowance of $1,000 and will reimburse you for your business-related fuel
expenses while you are employed with the Company. In addition, the Company will
provide you with a membership at the Marbella Country Club and will pay the
standard dues and fees with respect to that membership while you are employed
with the Company. You will also be eligible, as of the April 1, 1998, to
participate in the health insurance, disability insurance, life insurance and
retirement programs made available from time to time by the Company to other
executive officers. The Company agrees to reimburse you for any health insurance
expenses incurred by you under COBRA until March 30, 1998. You will be entitled
to four (4) weeks paid vacation each calendar year effective as of the Start
Date. The Company will reimburse you for all reasonable out-of-pocket business
expenses incurred in
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performing the services contemplated by this letter agreement in accordance with
then prevailing Company policies, provided that reasonable documentation of such
expenses is provided by you.
7. DEATH AND DISABILITY. If you become disabled and are unable to
perform your duties, the Company will continue to pay your salary and provide
the perquisites referred to in Section 6 for the period of such disability up to
a maximum of 90 days, and the Company will have the right to terminate this
letter agreement effective upon the expiration of said 90-day period. Thereafter
you will be entitled to receive benefits under any then-existing disability
insurance program of the Company. "Disability" means any physical or mental
condition which renders you unable to perform the essential functions of your
position, even with reasonable accommodation. In the event of your death, this
letter agreement shall automatically terminate.
8. SEVERANCE BENEFITS. In the event of termination of your employment
by the Company without cause at any time, the Company will pay you, as a
lump-sum severance benefit, the amount of your annual base salary then in effect
(less appropriate withholding amounts) plus maximum annual bonus equal to 100%
of your then annual salary, and the Company will release any and all shares of
Common Stock held for your benefit in any deferred compensation account with the
Company without penalty. Such severance payments will be made on the normal
salary and bonus payment days of the Company.
For purposes of this Section 8 and Section 4.3, termination for
cause shall mean termination for one of the following reasons: personal
dishonesty; willful misconduct; breach of fiduciary duty involving self-dealing
or personal profit; intentional material failure to perform duties or abide by
Company policies, in each case to the extent such duties or policies have been
communicated to you in writing or their existence is otherwise known to you and
you have not cured such failure within a reasonable time after written notice of
such failure is given to you; conviction, entry of a plea of guilty or nolo
contendere in connection with any alleged violation, or any actual violation, of
any law, rule, regulation (other than traffic violations or similar offenses) or
any cease-and-desist or other court order; involvement in any legal proceeding
which, in the opinion of legal counsel to the Company, would be required to be
disclosed pursuant to rules and regulations of the Securities and Exchange
Commission, other than proceedings under federal bankruptcy laws or state
insolvency laws involving entities in which you have less than a fifty percent
(50%) interest; any intentional material breach of this letter agreement;
non-prescription use of any controlled substance or the use of alcohol or any
other non-controlled substance which the Board of Directors reasonably
determines renders you unfit to serve in your capacity as an officer of the
Company; or any intentional act or omission which the Board of Directors
reasonably determines has a material adverse effect on the public image,
reputation or integrity of the Company. Termination for cause shall not include
termination on account of job performance failing to meet criteria or
expectations of the Board.
If you voluntarily resign, or your employment is terminated by the
Company for cause, or your employment terminates as a result of your death or
disability, you will not be entitled to any severance benefits pursuant to the
first paragraph of this Section 8 except as provided in Section 7 with respect
to disability pay and disability insurance and except in the case of death for
any life insurance benefits. In the event that a voluntary resignation by you is
caused by a substantial reduction in your duties and responsibilities below
those appropriate for your
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position as provided in Section 1, an intentional material breach of this letter
agreement or material misrepresentation by the Company, or any other material
change in the circumstances of your employment made by the Company for the
purpose and with the intention and effect of causing you to resign, you will be
treated as having been terminated by the Company without cause.
Notwithstanding the above, in lieu of the severance package
described in this Section 8, you will receive a severance package equal in value
to three (3) times your average annual total compensation (subject to the
maximum parachute limitations of the Internal Revenue Code) for the years that
you have been employed by the Company if all of the following three (3)
conditions occur in connection with a Change in Control of the Company:
(a) your employment with the Company is terminated;
(b) the Board of Directors of the Company, in its sole
discretion, determines that the market value of the Company has been adversely
impacted primarily as the result of forces beyond your control; and
(c) the spread between the closing price of the Company's Class A
Common Stock and the exercise price of the Initial Option is negative or zero or
less than $8.00 as of the date of termination of your employment.
9. SPECIAL OPTION VESTING EVENTS.
9.1. CHANGE IN CONTROL. A "Change in Control" of the Company shall
be deemed to have occurred if: (i) there shall be consummated (x) any
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of the Company's
Common Stock are converted into cash, securities or other property, other than a
merger of the Company in which the holders of the Company's Common Stock
immediately prior to the merger have the same proportionate ownership of common
stock of the surviving corporation immediately after the merger, or (y) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the
Company, or (ii) the shareholders of the Company shall approve any plan or
proposal for the liquidation or dissolution of the Company, or (iii) any person
(as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of 51% or more of the
Company's outstanding Common Stock, or (iv) during any period of two consecutive
years, individuals who at the beginning of such period constitute the entire
Board of Directors shall cease for any reason to constitute a majority thereof
unless the election, or the nomination for election by the Company's
shareholders, of each new director was approved by a vote of at least a majority
of the directors then still in office who were directors at the beginning of the
period.
In the event that there is a Change in Control of the Company and
your employment with the Company is terminated by the Company within one (1)
year of such Change in Control event for any reason, except for cause, all
options to purchase shares of the Common
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Stock that had been granted to you as of the date of such termination shall
become fully vested and exercisable for the balance of their term; provided that
the Company has the right to cash out these options in a Change in Control
transaction.
9.2. VOLUNTARY TERMINATION OF EMPLOYMENT. If you voluntarily
terminate your employment with the Company, all options granted that are not
vested as of such voluntary termination date will expire. In such case, you will
have the right to exercise your options with respect to the number of shares
that are exercisable on the date of termination (determined without any
acceleration of the exercise dates) at any time within three (3) months after
the date of resignation.
9.3. TERMINATION OF EMPLOYMENT WITHOUT CAUSE. If your employment is
terminated by the Company without cause, your granted options will vest
automatically and will remain exercisable for the balance of their term. Options
that have not been granted as of the date of termination are void and without
legal effect.
10. TERM OF EMPLOYMENT. The term of this letter agreement shall be for
five (5) years, commencing on the Start Date, unless terminated earlier as
provided in this letter agreement.
11. NONDISCLOSURE. You agree that, for so long as you remain in the
employ of the Company and thereafter, you will not disclose to any person or
entity or otherwise use or exploit any proprietary or confidential information
of the Company, including without limitation trade secrets, processes,
proposals, reports, methods, computer software or programming or budgets or
other financial information regarding the Company, its business, properties,
customers or affairs obtained by you while you are employed by the Company,
except to the extent required by you to perform your duties pursuant to this
letter agreement. Information will not be deemed to be confidential for purposes
of this letter agreement if it is or becomes generally available to the public
other than as a result of a disclosure by you. You will have the right to use
any such confidential information to the extent necessary to assert any right or
defend against any claim arising under this letter agreement or pertaining to
confidential information or its use and to the extent necessary to comply within
the applicable provision of law. All files, records, documents, computer
recorded information, specifications and other similar items relating to the
business of the Company, whether prepared by you or otherwise coming into your
possession, shall remain the exclusive property of the Company and shall not be
removed from the premises of the Company except when (and only for the period)
necessary to carry out your duties. If removed, all such materials shall be
immediately returned to the Company upon any termination of your employment, and
no copies thereof shall be kept by you, except that you shall be entitled to
retain documents reasonably related to your rights as an optionholder,
stockholder and former employee of the Company. You acknowledge and agree that
the remedy for any breach of the provisions of this Section 10 may be inadequate
in that the Company may, in addition to all other remedies that may be available
to it at law, seek injunctive relief prohibiting any such breach.
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12. NONINTERFERENCE WITH BUSINESS. During the period of your employment
and for any one (1) year period thereafter (regardless of the reason for
termination of employment) you agree that you will not participate with or
advise in any capacity any person or entity in any negotiation between such
person or entity and the Company or any affiliate of the Company. In addition,
during such period you agree that you will not, directly or indirectly, solicit
or induce (or assist in or encourage the solicitation of) any employee of the
Company or its affiliated entities to leave the employ of the Company for
purposes of accepting employment with any other person or entity. For purposes
of this letter agreement "affiliate" means the corporation or other entity
controlled by the Company, directly or indirectly, through stock ownership or
any other means.
13. DEFERRED COMPENSATION.
13.1. PARTICIPATION IN COMPANY PLANS. You will be eligible to
participate in any and all of the Company's deferred compensation plans that are
made available to executive officers of the Company.
13.2. SPECIAL DEFERRED COMPENSATION. In addition to participation in
any Company sponsored deferred compensation plan under Section 13.1 of this
letter agreement, you may participate in a special deferred compensation plan
designed for you providing for a one-time deferral of $100,000, which amount
shall be invested in the Common Stock on the Start Date and deferred during the
term of this letter agreement.
14. ASSIGNMENT. This letter agreement is personal to you and is not
assignable by you under any circumstances. Likewise, the Company will not have
the right to assign this letter agreement to any other person or entity except
for any corporation or entity into which the Company may be merged or
consolidated or any person or entity which may acquire all or a substantial
portion of the assets of the Company.
15. ENTIRE AGREEMENT. This letter agreement sets forth the entire
understanding of you and the Company with respect to the subject matter hereof
and supersedes all prior agreements, memoranda, discussions and understandings
of any kind. This letter agreement cannot be amended except in a writing signed
by you and the Company, and no course of dealing contrary to its terms shall
constitute an amendment. No right or obligation hereunder can be waived except
in a writing signed by the party making the waiver.
16. PARTIAL INVALIDITY. If any provision of this letter agreement is
invalid or unenforceable in any jurisdiction that provision shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any way affecting the remaining provisions of this
letter agreement.
17. GOVERNING LAW. This letter agreement shall be construed and
enforced in accordance with the substantive law of the State of California
without regard to provisions relating to choice of law or conflict of laws.
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18. REFERENCE CHECK. This letter agreement shall not become legally
effective or binding until the completion of a reference check by the Company
that is satisfactory to the Chief Executive Officer and the Board of Directors
in their discretion; provided, however, that the reference check will be
completed no later fifteen (15) days after this agreement is signed by both
parties.
If this letter correctly sets forth the terms of our agreement with
respect to your employment, please execute this letter and the enclosed copy in
the place indicated and return the copy to me, and thereupon (subject to Section
18) this letter shall become a binding and enforceable agreement between you and
the Company.
Sincerely,
/s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
Chief Executive Officer and President
AGREED:
/s/ XXXX XXXXXX
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Xxxx Xxxxxx
Dated: December 16, 1997
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