EXHIBIT 10.52
EMPLOYMENT AGREEMENT
Employment Agreement, effective as of March 1, 1996, by
and between STAFF BUILDERS, INC., a New York corporation ("Staff
Builders" or the "Corporation"), and Xxxxx Xxxxxxxx who resides at
00000 Xxxxxx Xxx, Xxxxxxx, Xxxxx 00000-0000 ("Executive").
WHEREAS, Staff Builders wishes to secure the services of the
Executive on the terms and conditions set forth below;
AND WHEREAS, the Executive represents that he has no
restrictions on employment arising out of any previous employment
agreements and the Executive is willing to accept employment with
Staff Builders on such terms and conditions.
NOW, THEREFORE, in consideration of their mutual promises and
other adequate consideration, Staff Builders and the Executive do
hereby agree as follows:
1. EMPLOYMENT. Staff Builders will employ the Executive
as Executive Vice President for National Health Care Operations,
in accordance with the terms and provisions of this Agreement.
2. DUTIES. The Executive shall report to the President-CEO
of Staff Builders and shall be responsible for the management of
all aspects of the home health care business of Staff Builders. The
Executive shall perform such other duties as shall be assigned to
the Executive by the President-CEO of Staff Builders. The
Executive shall devote his full business time, attention and skill
to the performance of his duties hereunder and to the advancement
of the business and interests of Staff Builders. During the term
of this Agreement, the Executive shall be required to base his
business office at the Lake Success Corporate office location. The
Executive's base business office shall not be changed without his
prior consent.
3. TERM. This Agreement shall be effective on March 1,
1996, and shall remain in effect until February 28, 1999, unless
terminated earlier pursuant to the terms hereof.
4. COMPENSATION.
(a) Salary. The Executive shall be paid a salary
during the term hereof in weekly installments at the following
rates:
March 1, 1996 to February 28, 1997 = $180,000
March 1, 1997 to February 28, 1998 = $190,000
March 1, 1998 to February 28, 1999 = $200,000
(b) Sign-on Bonus. The Executive shall receive a one
time sign-on bonus in the amount of $80,000, payable by Staff
Builders upon commencement of employment. In the event the
Executive voluntarily terminates this Agreement prior to February
28, 1997, Executive shall repay to Staff Builders the full amount
of the sign-on bonus; in the event the Executive voluntarily
terminates this Agreement prior to February 28, 1998, the Executive
shall repay to Staff Builders the sum of $50,000; and in the event
the Executive voluntarily terminates this Agreement prior to
February 28, 1999, the Executive shall repay to Staff Builders the
sum of $25,000.
(c) Benefits. The Executive shall be eligible to
receive and participate in all health, medical or other insurance
benefits which Staff Builders provides or makes available to its
employees.
(d) Expenses. Staff Builders shall reimburse the
Executive for all reasonable moving expenses from Houston to New
York, and necessary temporary housing which shall be previously
approved by the President-CEO. Otherwise, Staff Builders shall
reimburse the Executive for all reasonable and necessary expenses
upon submission by the Executive of receipts, accounts or such
other documents reasonably requested by Staff Builders.
(e) Incentive Compensation. The Executive will be
eligible to participate in Staff Builders' Tip Top Program with the
same bonus percentage as the CEO of Staff Builders, Inc.
(Delaware).
(f) Options. The Executive shall receive 100,000
stock options of Staff Builders, Inc. (Delaware) ("SBD") at market
price for close of trading on February 29, 1996, which shall be
vested over a three (3) year period, such that 33,334 will become
vested immediately; 33,333 will become vested as of March 1, 1997,
and 33,333 will become vested as of March 1, 1998, in accordance
with the terms of an option agreement to be entered into between
SBD and the Executive.
(g) Vacation. The Executive shall receive fifteen (15)
days vacation each year during the term of the Agreement.
(h) Car Lease. Staff Builders shall lease a Lexus ES-
300 automobile for the Executive's exclusive use.
5. TERMINATION: RIGHTS AND OBLIGATIONS UPON TERMINATION.
(a) If the Executive dies during the Term, then the
Executive's employment under this Agreement shall terminate. In
such event, the Executive's estate shall be entitled only to
compensation and expenses accrued and unpaid as at the date of the
Executive's death.
(b) If, as a result of the Executive's total incapacity
due to physical or mental illness, whether or not job related, the
Executive is absent from his duties hereunder for 180 consecutive
days, the Executive's employment hereunder shall terminate. The
Executive's salary shall continue during such period of incapacity
until the period of 180 consecutive days has elapsed. In such
event, the Executive shall be entitled to severance, payable as the
then weekly base salary for a period of six (6) months, and
expenses accrued and unpaid as at the date of termination of the
Executive's employment.
(c) The Corporation shall have the right to terminate
the Executive's employment under this Agreement for Cause. For
purposes of the Agreement, the Corporation shall have "Cause" to
terminate the Executive's employment if (i) the Executive assigns,
pledges, or otherwise disposes of his rights and obligations under
this Agreement, or attempts to do the same without the prior
written consent of the Corporation; or (ii) the Executive
deliberately or intentionally fails or habitually neglects to
fulfill his obligations under this Agreement (except by reason of
incapacity due to physical or mental illness or disability), has
engaged in willful misconduct or has acted in bad faith; (iii) the
Executive has breached Section 7 of this Agreement; (iv) the
Executive has committed a felony or other crime involving moral
turpitude or perpetrated a fraud or other dishonest acts against
the Corporation; or (v) the Executive has engaged in deliberate or
reckless acts which place the Employer's officers, employees,
customers or invitees in immediate physical danger or deliberate
or reckless acts which result in damage to or destruction of
Employer's property. If the Corporation terminates this Agreement
for Cause, the Corporation's obligations hereunder shall cease,
except for the Corporation's obligation to pay the Executive the
compensation and expenses accrued and unpaid as of the date of
termination in accordance with the provisions hereof.
(d) In the event that (i) the Executive is discharged by the
President-CEO for any reason other than for Cause, (as defined
above), or (ii) the Executive is no longer responsible for the
management of all aspects of the home health care business of Staff
Builders, except as established by mutual consent of the parties,
prior to the end of the term hereof, the Executive shall receive
within thirty (30) days after such discharge or change in
responsibility a one time, lump sum severance payment equal to
twelve (12) months' salary at the same rate of pay in effect at the
date of the termination, including any accrued incentive or bonuses
of the date of termination. Staff Builders shall, in addition, pay
to the Executive all reasonable moving expenses from New York to
Houston or from New York to Missouri. In such event, the
Restrictive Covenant period as defined in Section 7(b) hereof,
shall be reduced to six (6) months.
(e) Notwithstanding anything to the contrary contained
herein, all payments owed to the Executive upon termination of this
Agreement shall be subject to offset by the Corporation for amounts
owed to the Corporation by the Executive hereunder or otherwise.
(f) The obligations of the Corporation and the Executive
pursuant to this Section 5 shall survive the termination of this
Agreement.
6. NOTICES. Any written notice permitted or required under
this Agreement shall be deemed sufficient when hand delivered or
posted by certified or registered mail, postage prepaid, and
addressed to:
if to Staff Builders:
Staff Builders, Inc.
0000 Xxxxxx Xxxxxx,
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Chairman of the Board
or
if to the Executive:
Xxxxx Xxxxxxxx
00000 Xxxxxx Xxx
Xxxxxxx, Xxxxx 00000-0000
Either party may, in accordance with the provisions of this
Section, give written notice of a change of address, in which event
all such notices and requests shall thereafter be given as above
provided at such changed address.
7. CONFIDENTIALITY OBLIGATIONS; NON-COMPETITION BY
EXECUTIVE.
(a) The Executive acknowledges that in the course of
performing his duties hereunder, he will be made privy to
confidential and proprietary information. The Executive covenants
and agrees that during the term of this Agreement and at any time
after the termination of this Agreement, he will not directly or
indirectly, for his own account or as an employee, officer,
director, partner, joint venturer, shareholder, investor, or
otherwise, disclose to others or use for his own benefit or cause
or induce others to do the same, any proprietary or confidential
information or trade secrets of Staff Builders, including but not
limited to, any matters concerning the business or operations of
Staff Builders, including its plans, procedures or methods of
operations, any Staff Builders' lists of clients or business
contacts, any information concerning specialty programs or business
development, other work product or records of Staff Builders, other
than in the performance of his duties hereunder.
(b) The Executive agrees that, during the term hereof and
for one (1) year following the termination hereof (the "Restrictive
Covenant Period"), he will not, within the United States (A)
compete, directly or indirectly, for his own account or as an
employee, officer, director, partner, joint venturer, shareholder,
investor, or otherwise, with the home health care or supplemental
staffing business conducted by Staff Builders or (B) be employed
by, work for, advise, consult with, serve or assist in any way,
directly or indirectly, any person or entity whose business is home
health care of supplement staffing; or (C) directly or indirectly
solicit, recruit or hire any employee of Staff Builders to leave
the employ of Staff Builders; or (D) solicit any client or customer
of Staff Builders to terminate or modify its business relationship
with Staff Builders. During the Restrictive Covenant Period, Staff
Builders shall pay to the Executive the sum of $180,000 in fifty-
two (52) equal weekly installments.
(c) The foregoing restrictions on the Executive set
forth in this Section 7 shall be operative for the benefit of Staff
Builders and of any business owned or controlled by Staff Builders,
or any successor or assign of any of the foregoing.
(d) Executive acknowledges that the restricted period
of time and geographical area specified in this Section 7 is
reasonable, in view of the nature of the business in which Staff
Builders is engaged and the Executive's knowledge of Staff
Builders' business. Notwithstanding anything herein to the
contrary, if the period of time or the geographical area specified
in this Section 7 should be determined to be unreasonable in a
judicial proceeding, then the period of time and territory of the
restriction shall be reduced so that this Agreement may be enforced
in such area and during such period of time as shall be determined
to be reasonable.
(e) The parties acknowledge that any breach of this
Section 7 will cause Staff Builders irreparable harm for which
there is no adequate remedy at law, and as a result of this, Staff
Builders shall be entitled to the issuance of an injunction,
restraining order or other equitable relief in favor of Staff
Builders restraining Executive from committing or continuing any
such violation. Any right to obtain an injunction, restraining
order or other equitable relief hereunder shall not be deemed a
waiver of any right to assert any other remedy Staff Builders may
have at law or in equity.
(f) For purposes of this Section 7, the term "Staff
Builders" shall refer to the Corporation and all of its parents,
subsidiaries and affiliated corporations.
8. JURISDICTION. The Executive consents to the jurisdiction
of the Supreme Court of the State of New York or of any Federal
Court in the City of New York for a determination of any dispute as
to any matters whatsoever arising out of or in any way connected
with this Agreement and authorizes the service of process on him by
registered mail sent to him at his address shown on the records of
Staff Builders.
9. HANDBOOK;GROUP INSURANCE PROGRAM BOOKLET. The Executive
acknowledges receipt of Staff Builders Employee Handbook and Group
Insurance Program booklet (together, the "Handbook"). The terms of
the Handbook are incorporated herein by reference.
10. BINDING EFFECT. This agreement shall bind and inure to
the benefit of Staff Builders, its successors and assigns and shall
inure to the benefit of, and be binding upon, the Executive, his
heirs, executors and legal representatives.
11. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall in no way affect the validity or
enforceability of any other provision, or any part thereof.
12. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement between the parties hereto pertaining to the subject
matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations, and discussions, whether
oral or written, of the parties.
14. MODIFICATION, TERMINATION OR WAIVER. This Agreement may
only be amended or modified by a written instrument executed by the
parties hereto. The failure of any party at any time to require
performance of any provision of this Agreement shall in no manner
affect the right of such party at a later time to enforce the same.
IN WITNESS WHEREOF, Staff Builders and the Executive have
executed this Employment Agreement as of the date first above
written.
STAFF BUILDERS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
XXXXXXX XXXXXXXX, President-CEO
/s/ Xxxxx Xxxxxxxx
XXXXX XXXXXXXX
xxxxxxxx/kl
