SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AND AMENDMENT TO OPTION AGREEMENT
(Xxxxxx X. Xxxx, Xx.)
This Second Amended and Restated Employment Agreement and Amendment to
Option Agreement (together with all schedules hereto, this "Agreement") is made
and entered into by and between EMPLOYEE SOLUTIONS-EAST, INC., a Georgia
corporation ("Employer" or "ESI-East"), as employer, and XXXXXX X. XXXX, XX, an
unmarried individual ("Employee"), with the consent and approval of EMPLOYEE
SOLUTIONS, INC., an Arizona corporation ("ESI"). (ESI, ESI-East and their
respective affiliates are sometimes are referred to severally and collectively
herein, as the context may require, as "the ESI Group.") (Employee and the
Agency (defined below) shall not be deemed as members of the ESI Group.)
R E C I T A L S :
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A. Employer and ESI are professional employer organizations,
which contract with client companies to become the "employer of record" for the
client companies' employees ("PEOs"). In their capacity as PEOs, Employer and
ESI provide employers throughout the United States with comprehensive employee
payroll, human resources, and benefits outsourcing services, including payroll
processing and reporting, human resources administration, employment regulatory
compliance management, risk management/workers' compensation services,
retirement and healthcare programs, and other products and services provided
directly to worksite employees. All of these activities are referred to herein
as the "PEO Business." Employer is a wholly owned subsidiary of ESI.
B. Employer, Employee and ESI entered into an Employment
Agreement on or about November 11, 1994, with an effective date of June 24,
1994, as amended and restated by that Amended and Restated Employment Agreement
by and among the same parties, dated as of January 1, 1996, as further amended
by that certain extension letter agreement, dated as of October 17, 1997,
captioned "Extension of Employment Agreement" (collectively, the "Prior
Employment Agreement").
C. In conjunction with the execution by Employer, Employee,
ESI and the Xxxxxx X. Xxxx Agency, Inc. (the "Agency") of that Asset Purchase,
Joint Venture Termination and Mutual Release Agreement of even date herewith
(together with the schedules thereto, the "Asset Agreement"), Employer and
Employee desire to replace the Prior Employment Agreement with this Agreement to
provide for the continued employment of Employee hereunder, with the intent that
the noncompetition and confidentiality provisions of the Prior Employment
Agreement, as expressly set
forth herein, shall continue, as modified and restated by this Agreement. In all
other respects, that this Agreement shall become effective on, and shall
supersede and replace the Prior Employment Agreement in its entirety as of,
April 7, 1998 (the "Modification Date").
D. ESI desires to have Employer engage Employee pursuant to
the terms of this Agreement, and is willing to make the agreements and
representations required of it herein.
NOW, THEREFORE, in consideration of the premises and mutual
agreements hereinafter set forth, the parties agree as follows:
1. Employment.
a. Engagement. Employer agrees to continue Employee's
employment, on a part-time basis, upon the terms and conditions provided herein,
and Employee agrees to accept such part-time employment, upon said terms and
conditions.
b. Duties. Employee will perform only customer
service functions with respect to accounts generated by Employee or the Agency
prior to the Modification Date, and will only be required to perform such
customer service functions upon instruction from time to time by Employer's or
ESI's Board of Directors (the "Board") or ESI's President/Chief Executive
Officer; provided that Employee shall not be deemed to guarantee the retention
of any such accounts. If not specifically instructed to perform customer service
functions, Employee shall have no obligations to perform, and shall not perform,
any such functions. Employee will not contact customers for such accounts,
except as instructed in the manner set forth above. Employee also shall provide
reasonable assistance from time to time with respect to current or future
litigation involving the ESI Group and relating to matters in which Employee was
involved. Employee will report directly to ESI's President/Chief Executive
Officer. Such employment will be on a part-time basis.
c. Resignations. Effective as of March 31, 1998,
Employee hereby resigns from all positions as a director and/or officer of
Employer, ESI and any other members of the ESI Group. Employee will cooperate
with Employer, ESI and all other members of the ESI Group in preparing any
filings or documents necessary to effect such resignations and to ensure
continuing compliance with all licensing, reporting and other requirements, if
any, affected by such resignations.
d. Exclusive Employment Agreement. This Agreement
shall be the sole agreement with respect to the employment relationship between
Employer and Employee. The Prior Employment Agreement and any other materials,
discussions, understandings, agreements or commitments with respect to any
aspect of the employment relationship between Employer and Employee or any other
matters discussed herein (collectively with the Prior Employment Agreement, the
"Prior Agreements") are hereby terminated, replaced and superseded by this
Agreement, except as otherwise expressly set forth herein.
e. Limitations on Authority. Employee shall not enter
into any agreements or incur any obligations on behalf of, or attempt in any way
to bind, any member of the ESI Group. Employee shall have no other job titles or
duties aside from those expressly set forth herein.
2. Term. This Agreement shall commence on the Modification
Date and continue until December 31, 1999 (the "Term"). Thereafter, this
Agreement shall automatically terminate unless Employer and Employee agree in
writing to continue the Agreement. Notwithstanding the foregoing provisions of
this paragraph, this Agreement shall be subject to earlier termination, but only
as set forth in paragraph 5 below.
3. Compensation.
a. Base Salary. Commencing as of March 1, 1998,
Employer shall pay Employee a salary, before deducting all applicable federal
and state tax withholdings, at the rate of $42,000 per year, payable at the
times and in the manner dictated by Employer's standard payroll policies.
b. Commissions. Except as otherwise expressly set
forth herein, Employee is not entitled to receive for any period on or prior to
the date hereof, and shall not be entitled to receive for any period hereafter,
directly or indirectly (through the Agency or otherwise), any further
commissions, compensation or payments of any type for any prior or future sales
of PEO Business, or otherwise, except as expressly agreed to by Employer,
Employee and ESI in writing hereafter.
c. Fringe Benefits. Except as otherwise expressly set
forth herein, Employer, Employee and ESI agree that Employee shall not
participate in any benefit programs offered by Employer or ESI.
d. Stock Options. Employee shall retain the 400,000
stock options granted pursuant to the Prior Agreements, and evidenced by the
option grant letter attached hereto as Exhibit "A" (although the letter
references 100,000 options, the amount of options has increased to 400,000 due
to stock splits, and the exercise price per share has decreased from $8.50 to
$2.125 due to stock splits). ESI agrees that 100,000 of the options shall vest
fully upon execution of this Agreement by all parties, and the attached option
grant letter is hereby modified to reflect the immediate vesting of these
options. The remaining options shall vest later, if at all, in accordance with
the terms of the attached option grant letter. The option grant letter also is
amended to change the address for exercise in paragraph 5 thereof to the address
for notice to ESI under paragraph 9 hereof.
e. Offsets. Notwithstanding any other provisions of
this Agreement which may be interpreted to the contrary, it is specifically
agreed that in the event Employee is in material default hereunder in any
respect whatsoever, after giving effect to any releases granted herein and/or in
the Asset Agreement as of the Modification Date (which default has not been
cured within all applicable grace periods) (an "Uncured Default"), or in the
event that Employee has any unfulfilled indemnification obligation under any
provision of this Agreement, the Asset Agreement or in any other document
executed in conjunction herewith or therewith (collectively "Unfulfilled
Indemnification Obligations"), or in the event of any other unpaid accrued
liability of Employee hereunder or under the Asset Agreement or in any other
document executed in conjunction herewith or therewith (an "Accrued But Unpaid
Debt"), then Employer or ESI may in its sole discretion, upon
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at least fifteen (15) days' prior written notice to Employee, offset against the
amounts otherwise payable to the Employee, the amount or amounts owed by
Employee to Employer or ESI as a result of the Uncured Default(s), Unfulfilled
Indemnification Obligations and Accrued But Unpaid Debt or Debts (individually,
an "Unfulfilled Employee Obligation" or, collectively, the "Total Unfulfilled
Employee Obligations"). Without limiting its other remedies, Employer or ESI
also shall have the right to terminate or exercise the options granted to
Employee to satisfy any Unfulfilled Employee Obligations, with the options
valued in the same manner set forth in Section 3(c) of the Asset Agreement. If
the Total Unfulfilled Employee Obligations should exceed the total amounts owed
by Employer or ESI to Employee at such time, then, unless Employer and ESI
otherwise agree in writing, no additional amounts will be paid to Employee until
such time as said Total Unfulfilled Employee Obligations have been satisfied and
Employee shall remain liable to Employer for the amount by which the unpaid
Total Unfulfilled Employee Obligations exceed the total amounts owed by Employer
or ESI to Employee, from time to time. Unless another rate is expressly
provided, each delinquent Unfulfilled Employee Obligation will bear interest at
the rate of twelve percent (12%) per annum from the date of delinquency until
paid.
4. Office Space; Expenses. Employer and Employee agree that
the duties to be performed by Employee do not require the use of any
Employer-provided office space. Consequently, Employee agrees to vacate his
current office space at Employer's offices on or before April 3, 1998, and the
parties agree that Employer shall not have any obligation to provide, or
reimburse Employee for, any office space. Employer agrees to reimburse Employee
for any ordinary, necessary and reasonable business expenses requested by
Employee and approved by Employer in writing in advance.
5. Termination. This Agreement may be terminated only by
written notice, given in compliance with this Agreement, for any one or more of
the following events:
a. Termination for Material Breach. In the event that
any party, after the Modification Date, materially fails to fulfill any of his
or its representations, warranties, agreements or obligations hereunder or under
the Asset Agreement, this Agreement may be terminated by the other party;
provided, however, that in the event of any proposed termination because of a
party's alleged material failure to fulfill any such item, the party seeking to
terminate this Agreement ("Terminating Party") must first give the other party
("Defaulting Party") fifteen (15) days' advance written notice of the alleged
failure, breach or default on the part of the Defaulting Party and an
opportunity to cure the same, if curable, within said time period before the
Terminating Party terminates this Agreement due to the Defaulting Party's
alleged failure, breach or default.
b. Termination for Cause. Employer may terminate
Employee for "cause," upon reasonable notice given not fewer than five (5) days
but not more than ten (10) days in advance of such termination's effective date.
For purposes of this Agreement, "cause" shall mean the occurrence of any one or
more of the following during the Term, as determined by a majority vote of the
Employer's Board of Directors:
(1) Employee's conviction of a felony; or
(2) An act of fraud or theft on the part of Employee.
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c. Mutual Consent. At any time during the term of
this Agreement, the parties hereto may terminate this Agreement by mutual
consent, provided, however, that such termination by mutual consent must be made
in writing signed by both parties.
d. Death of the Employee. Upon the death of the
Employee, this Agreement shall terminate and Employer shall pay to the executor,
administrator or personal representative of Employee's estate any salary earned
by the Employee, and any amounts reimbursable hereunder up to the time of his
death, and shall honor all rights conferred upon Employee upon his death, if
any, pursuant to the attached option grant letter, but all further rights to
salary shall cease upon Employee's death.
e. Disability. Notwithstanding anything in this
Agreement to the contrary, if, during the term of the Agreement, the Employee
becomes "disabled" (as hereinafter defined), Employer may immediately terminate
this Agreement at any time prior to the cessation of Employee's disability and
the resumption of Employee's performance of his duties hereunder, provided
Employer shall pay any amounts reimbursable hereunder, up to the time of
termination and shall honor all rights conferred upon Employee upon his
disability, if any, pursuant to the attached option grant letter. However, in
the event Employee ceases to be disabled and returns to work for Employer,
Employer's right to later terminate Employee for disability shall be dependent
upon Employee once again becoming disabled. For purposes of this Agreement,
Employee shall be deemed to have become disabled if, because of ill health,
physical or mental disability, Employee shall have been unable, in a material
way, to perform his duties under this Agreement for a period of sixty (60)
consecutive days.
6. Confidential Information. For the Confidentiality
Consideration (defined below), Employee agrees as follows with respect to his
actions during the Term (and, as may be provided below, after the Term):
a. In General. Employee acknowledges that, in his
capacity as an employee, he will occupy a position of trust and confidence, and
that he will develop and have much information about Employer, ESI, and other
members of the ESI Group, and their operations that is confidential or not
generally known in the PEO Business ("Confidential Information"). Employee
agrees that all such information is proprietary or confidential or constitutes
trade secrets and is the sole property of the ESI Group. From and after the
Modification Date through December 31, 2001, Employee agrees to keep
confidential, and will not reproduce, copy or disclose to any other person or
firm, any such Confidential Information which shall include, but not be limited
to, any documents or information relating to the ESI Group's methods, clients,
accounts, systems, programs, procedures, correspondence or records, or any other
documents used or owned by the ESI Group related to such Confidential
Information (including, but not limited to, this Agreement), nor will he advise,
discuss with or in any way assist any other person or firm in obtaining or
learning about such Confidential Information, except as authorized in the
following two (2) sentences. Accordingly, he agrees that from and after the
Modification Date through December 31, 2001, during the term of this Agreement,
and afterwards, he will not disclose, permit or encourage anyone to disclose any
such Confidential Information, nor will he utilize any such Confidential
Information, either alone or with others, outside the scope of his duties and
responsibilities as an employee of Employer. This paragraph 6 should not,
however, be construed or interpreted as preventing Employee from making any
disclosures required
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or otherwise ordered by any court of competent jurisdiction or any government
agency lawfully requiring or otherwise lawfully ordering such a disclosure. The
"Confidentiality Consideration" shall consist of the consideration set forth in
(i) this Agreement, (ii) the Asset Agreement, and (iii) the Prior Agreements (as
defined in the Asset Agreement), all of which contained and/or provided
consideration for prior confidentiality agreements of Employee, which prior
confidentiality agreements shall continue as modified by this paragraph 6 and
shall continue to provide consideration for the agreements of Employee in this
paragraph 6; provided that all references to the "continuing" effect of the
confidentiality covenants in the Prior Agreements are intended solely to
incorporate said provisions herein, as modified herein, as of the Modification
Date. Employee shall have no liability for any actions or inactions taken,
directly or indirectly, prior to the Modification Date, with respect to the
confidentiality covenants of the Prior Agreements; provided that nothing in this
sentence shall limit the representations, warranties, covenants, and agreements
of Employee in the Asset Agreement, or the rights of ESI or Employer upon a
breach of any such items.
b. Remedies. It is agreed that the restrictions
contained in this paragraph 6 are reasonable, but it is recognized that damages
in the event of the breach of any of the restrictions will be difficult or
impossible to ascertain; and, therefore, Employee has agreed that in addition to
and without limiting any other right or remedy any member of the ESI Group may
have (except for the right to prove and recover actual damages), they shall each
have the right to an injunction against him issued by a court of competent
jurisdiction enjoining any such breach, and in addition thereto, they shall be
entitled to Five Hundred Dollars ($500.00) per day, in the aggregate, for each
and every day of such violation, not as a penalty but as liquidated damages.
c. Survival. Unless otherwise agreed by Employer and
ESI in writing, the obligations described in this paragraph 6 shall survive any
termination of this Agreement or any termination of the employment relationship
created hereunder.
7. Non-Competition. For the Non-Competition Consideration
(defined below), Employee agrees as follows with respect to his actions during
the term (and, as may be provided below, after the Term):
a. In General. During such time as Employee is
employed with Employer pursuant to this Agreement, except as specifically
provided in this paragraph 7, Employee agrees that all activities relating to or
in furtherance of PEO Business performed by him will be performed hereunder or
in accordance herewith, for the benefit of, and/or on behalf of, Employer. In
addition, except as otherwise provided in this paragraph 7 and except as may
hereafter be agreed to expressly in writing by ESI, Employer and Employee,
Employee agrees that, at all times from and after the Modification Date through
December 31, 2001, Employee shall not engage, directly or indirectly, whether on
his own account or as a shareholder (other than as a less than five percent (5%)
passive shareholder of a publicly-held company), partner, joint venturer,
employee, consultant, advisor, and/or agent, of any person, firm, corporation,
or other entity, in any or all of the following activities within any one or
more of the states in which any member of the ESI Group does business or has
leased employees (collectively, the "Restricted States"):
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(1) Enter into or engage in any PEO Business
or arrange for any PEO or other provider of PEO Business to provide any PEO
Business for a commission or other fee in any of the Restricted States;
(2) Solicit customers, suppliers, or PEO
Business, or use any customer lists for the purpose of or which results in
competition with Employer or any other member of the ESI Group concerning the
PEO Business in any of the Restricted States;
(3) Solicit the employment of Employer's or
any other ESI Group member's officers, directors, employees or independent
contractors; or
(4) Render PEO Business services or provide
loans to any person, firm, association, corporation, or other entity engaged in
the PEO Business in any one or more of the Restricted States.
The "Non-Competition Consideration" shall consist of the consideration set forth
in (i) this Agreement, (ii) the Asset Agreement, and (iii) the Prior Agreements
(as defined in the Asset Agreement), all of which contained and/or provided
consideration for prior noncompetition agreements of Employee, which prior
noncompetition agreements shall continue as modified by this paragraph 7 and
shall continue to provide consideration for the agreements of Employee in this
paragraph 7; provided that all references to the "continuing" effect of the
non-competition covenants in the Prior Agreements are intended solely to
incorporate said provisions herein, as modified herein, as of the Modification
Date. Employee shall have no liability for any actions or inactions taken,
directly or indirectly, prior to the Modification Date, with respect to the
non-competition covenants of the Prior Agreements; provided that nothing in this
sentence shall limit the representations, warranties, covenants, and agreements
of Employee in the Asset Agreement, or the rights of ESI or Employer upon a
breach of any such items.
b. Remedies. It is agreed that the restrictions
contained in this paragraph 7 are reasonable, but it is recognized that damages
in the event of the breach of any of the restrictions will be difficult or
impossible to ascertain; and, therefore, Employee has agreed that, in addition
to and without limiting any other right or remedy Employer or the other member
of the ESI Group may have, Employer and the other members of the ESI Group shall
each have the right to seek an injunction against him issued by a court of
competent jurisdiction enjoining any such breach.
c. Acknowledgments. Employee also agrees,
acknowledges, covenants, represents and warrants as follows:
(1) That he has read and fully understands
the foregoing restrictions and that he has consulted with a competent attorney
regarding the uses and enforceability of restrictive covenants in the Restricted
States or has elected not to do so, at his own risk;
(2) That he is aware that there may be
defenses to the enforceability of the foregoing restrictive covenants, based on
time or territory considerations, and that he knowingly, consciously,
intentionally and entirely voluntarily, irrevocably waives any and all such
defenses relating to time or territory considerations and will not assert the
same in any action
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or other proceeding brought by Employer or any one or more members of the ESI
Group for the purpose of enforcing the restrictive covenants or in any other
action or proceeding involving Employee, on the one hand, and Employer or any
one or more members of the ESI Group, on the other hand;
(3) That the provisions of this Agreement do
not impose an extreme hardship on him and that the provisions of this Agreement
are reasonable under the circumstances (in particular considering his exposure
to the highest level information due to his former status as an officer/director
and the fact that he was entrusted with many significant aspects of the ESI
Group's PEO Business in those roles); that any restrictions contained in the
Agreement are necessary to protect the legitimate business interests of the ESI
Group; that restrictions in the Agreement have been reasonably tailored as to
time and place, and are not overly broad as to the activities proscribed (after
taking into consideration the interests of the Employee in gaining and pursuing
a livelihood, and the ESI Group's legitimate business interests and concerns in
protecting its property, its confidential information, its relationships, its
goodwill and its economic advantage); and that because of payments being made in
consideration of, under or in connection with this Agreement and the Asset
Agreement, the restrictions of this Agreement are agreed to be equivalent to
restrictions found in the sale of a business; and
(4) That he is fully and completely aware
that, and further understands that, the foregoing restrictive covenants are an
essential part of the consideration for Employer and ESI entering into this
Agreement and the Asset Agreement, and that Employer and ESI are entering into
this Agreement and the Asset Agreement in full reliance on these
acknowledgments, covenants, representations and warranties.
d. Severability. In the event that the period of time
and/or territory described above are nevertheless held to be in any respect an
unreasonable restriction (after giving due consideration to the provisions of
paragraph 7(c) above), then it is agreed that the court so holding may reduce
the territory to which the restriction pertains or the period of time in which
it operates or may reduce both such territory and such period, to the minimum
extent necessary to render such provision enforceable.
e. Non-Compete Exception for Certain Insurance
Business and OORC Business; No Other Exceptions. Notwithstanding anything in
this paragraph 7 to the contrary, Employee shall be permitted to provide
management, sales and marketing services (i) for insurance and financial
products (other than worker's compensation insurance), provided that such
services are not on behalf of or result in the placement of any PEO Business
with a PEO; and (ii) to Owner Operator Resources Corp. ("OORC"); provided that
in performing any such activities for or on behalf of OORC, Employee shall not,
directly or indirectly, place any PEO Business with OORC, or take any other
action related to OORC that would adversely affect any PEO Business of any
member of the ESI Group. All other exceptions to the noncompetition provisions
of any Prior Agreements are terminated, and the exceptions described above in
this subparagraph 7(e) shall be the sole exceptions to the full compliance by
Employee with the terms of this paragraph 7.
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f. Survival. Unless otherwise agreed by Employer and
ESI in writing, the obligations described in this paragraph 7 shall survive any
termination of this Agreement or any termination of the employment relationship
created hereunder.
8. Remedies. In addition to the other rights and remedies set
forth herein, each party shall retain all rights and remedies at law or in
equity for any breach or default by the other party.
9. Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be delivered or
sent to the parties at the address set forth below, or at such other address
that they designate by notice to all other parties in accordance with this
Section. Any party delivering notice to Seller shall deliver it to:
Xxxxxx X. Xxxx, Xx.
With a copy to:
---------------
Xxxxxxx X. Xxxxxxxxx, Esq.
XxXxxxxxxx Xxxxxxxx, LLP
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Any party delivering notice to ESI or ESI-East shall deliver it to:
Xxxxxx X. Xxxxx
Chief Executive Officer
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Xxxx X. Xxxxx, Esq.
Senior Vice President and General Counsel
EMPLOYEE SOLUTIONS, INC.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Fax No. (000) 000-0000
All notices and communications shall be deemed to have been received: (i) in the
case of personal delivery, on the date of such delivery; (ii) in the case of
telex or facsimile transmission, on the date of such delivery; (iii) in the case
of overnight air courier, on the second business day following the day sent,
with receipt confirmed by the courier; and (iv) in the case of mailing by first
class certified or registered mail, postage prepaid, return receipt requested,
on the date of delivery, as evidenced by the certified or registered mail
receipt.
10. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous understandings or agreements in regard
thereto. No modification or addition to this Agreement shall be valid unless in
writing. No waiver of any rights under this Agreement shall be valid unless in
writing and signed by the party to be charged with such waiver. No waiver of any
term or condition
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contained in this Agreement shall be deemed or construed as a further or
continuing waiver of such term or condition, unless the waiver specifically
provides otherwise.
11. Governing Law. This Agreement and all amendments thereof
shall be governed by and construed in accordance with the law of the State of
Arizona applicable to contracts made and to be performed therein, without regard
to principles relating to conflicts of laws.
12. Arbitration; Exclusive Venue. Any controversy or claim
arising out of or relating to this agreement or the breach or validity thereof,
whether or not a contract claim, shall be settled exclusively by binding and
non-appealable arbitration in Phoenix, Arizona, by one (1) arbitrator selected
by the parties, or if the parties cannot agree upon a single arbitrator within
thirty (30) days of a party giving notice to the other of a proposed choice for
an arbitrator, then by a single arbitrator appointed by the Phoenix Office of
the American Arbitration Association; all such proceedings shall be conducted in
accordance with the rules of said association. Judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof, and
the parties consent to the exclusive jurisdiction of the Maricopa County,
Arizona courts and the Arizona Federal District Court for this purpose and for
all other purposes under this Agreement.
13. Construction. The language in all parts of this Agreement
shall in all cases be construed as a whole according to its fair meaning and not
strictly for nor against any party. The paragraph headings contained in this
Agreement are for reference purposes only and will not affect in any way the
meaning or interpretation of this Agreement. All terms used in one number or
gender shall be construed to include any other number or gender as the context
may require. The parties agree that each party has reviewed this Agreement and
has had the opportunity to have counsel review the same and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply in the interpretation of this Agreement or any
amendment or any exhibits thereof.
14. Binding Effect; Third Party Beneficiary. This Agreement
shall be binding upon and inure to the benefit of the parties hereto, their
heirs, personal representatives, permitted successors, assigns, and
beneficiaries-in-interest. Each member of the ESI Group shall be a third party
beneficiary hereunder, and shall be entitled to enforce the provisions of this
Agreement conveying any right or remedies to such party.
15. Severability. In the event any term or provision of this
Agreement is declared by a court of competent jurisdiction to be invalid or
unenforceable for any reason, this Agreement shall remain in full force and
effect, and either (a) the invalid or unenforceable provision shall be modified
to the minimum extent necessary to make it valid and enforceable, or (b) if such
modification is not possible, this Agreement shall be interpreted as if such
invalid or unenforceable provision were not a part hereof.
16. Attorneys Fees. Except as otherwise provided herein, in
the event any party hereto institutes an action or arbitration or other
proceeding to enforce any rights arising out of this Agreement, the party (or
parties) prevailing in such action or arbitration or other proceeding shall be
paid all reasonable costs and attorneys' fees by the non-prevailing party (or
parties, as the case may
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be), such fees to be set by the court and not by a jury and to be included in
any judgment or arbitration order entered in such proceeding.
17. Consents; Authority. ESI and Employer have obtained all
consents, approvals, authorizations and orders necessary for the execution,
delivery and performance of this Agreement, and ESI and Employer have the full
right, power and authority to enter into this Agreement, including, but not
limited to, the right, power and authority to amend the stock option grant in
the manner set forth herein. No permission, approval, determination, consent or
waiver by, or any declaration, filing or registration with, any governmental or
regulatory authority is required in connection with the execution, delivery and
performance of this Agreement by ESI or Employer, except those that already have
been obtained prior to the Closing.
18. Publicity. Employer and ESI agree that Employee shall have
the opportunity to review and approve in a reasonable manner any public
disclosures relating to this Agreement, subject to ESI's reporting obligations
under federal securities laws.
19. Counterparts. This Agreement may be executed in
counterparts, all of which, taken together, shall constitute one and same
original instrument.
20. Construction with Asset Agreement. This Agreement is being
entered into concurrently with the Asset Agreement. To the greatest extent
possible, this Agreement and the Asset Agreement shall be construed to
supplement each other; provided, however, that in the event of any direct
conflict, the Asset Agreement shall control.
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Dated as of April 7, 1998.
EMPLOYEE: /S/ Xxxxxx X. Xxxx, Xx.
------------------------------------
XXXXXX X. XXXX, XX.
EMPLOYER: EMPLOYEE SOLUTIONS-EAST, INC., a
Georgia corporation
By: /S/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer and
Chairman of the Board
ESI: EMPLOYEE SOLUTIONS, INC., an
Arizona corporation
By: /S/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer and
Chairman of the Board
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