EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into on November 1,
1997, between Work International Corporation, a Texas corporation (the
"Company"), and Bruce Garfield French, an individual residing in Toronto, Canada
(the "Executive").
RECITALS
WHEREAS, the Company has been formed to acquire companies engaged in the
business of temporary help staffing and outsourcing services, human resource
management and technology project management; and
WHEREAS, the Company wishes to employ the Executive, and the Executive is
willing to accept employment, on the terms and conditions of this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the Company employing the Executive and
the mutual promises and covenants set forth herein, and for other good and
valuable consideration, the receipt, adequacy and legal sufficiency of which are
hereby acknowledged, the Company and the Executive agree as follows:
1. Employment, Duties and Acceptance.
1.1 Employment by the Company. The Company agrees to employ the
Executive as a full-time executive employee of the Company in the position of
President and Chief Executive Officer for the Employment Term (as hereinafter
defined) to render such services and to perform such duties as are customarily
attendant to such position as well as such other duties, which are not
inconsistent with the Executive's status as an executive employee and founder of
the Company, as shall from time to time reasonably be requested by the Board of
Directors of the Company (the "Board of Directors") of which the Executive shall
be a member.
1.2 Acceptance of Employment by the Executive. The Executive hereby
accepts such employment and shall render the services required of him under
Section 1.1. The Executive shall devote his full business time, attention and
energy to the business of the Company and the performance of his duties under
this Agreement. The foregoing shall not, however, prohibit the Executive from
making and managing personal investments, or from engaging in civic or
charitable activities, that do not materially impair the performance of his
duties under this Agreement. If appointed or elected, as applicable, the
Executive also shall serve during all or any part of the Employment Term as any
other officer and/or as a director of the Company or any of its subsidiaries or
affiliates, without any additional compensation other than that specified in
this Agreement.
1.3 Place of Performance. Prior to the completion of the Company's
IPO (as defined in Section 3.5 below), the Executive agrees to perform his
service under this Agreement primarily at the Company's office in Houston,
Texas, with all reasonable expenses incurred in connection with his travel from
his personal residence in Toronto, Canada to Houston, Texas to be reimbursed by
the Company upon compliance with Section 3.4 hereof. Subsequent to the IPO, the
Company intends to establish an office in Toronto, Canada from which the
Executive will perform his services under this Agreement. Nothing in this
Agreement will require the Executive to relocate his place of residence from
Toronto, Canada.
1.4 Termination of Existing Contracts. The Executive agrees, and
represents and warrants, that all agreements and contracts, whether written or
oral, relating to the employment of the Executive by any other entity or person
("Third Party Agreements"), are terminated as of the commencement of the
Employment Term. The Executive further agrees, and represents and warrants,
that the execution of this Agreement and the performance of his duties hereunder
will not breach or be a violation of any Third Party Agreement.
2. Term of Employment. The term of the Executive's employment under this
Agreement (the "Employment Term") shall commence on ______________________ (the
"Commencement Date") and shall continue (unless earlier terminated as herein
provided) through and expire on the third anniversary of the Commencement Date;
provided, that upon completion of the Company's initial public offering ("IPO")
during the Employment Term, this Agreement shall continue thereafter and expire
on the third anniversary of the IPO (the "Expiration Date") and (unless
previously terminated in accordence with this Agreement) shall, upon the
Expiration Date or the last day of any automatically renewed term, be
automatically renewed for successive three-year terms.
3. Compensation and Other Benefits.
3.1 Annual Salary. As compensation for services to be rendered under
this Agreement, the Company shall pay the Executive a salary (the "Annual
Salary"), subject to such increases as the Board of Directors may, in its
discretion, approve, at a rate of $200,000 USD per annum; provided, that the
payment of the Annual Salary will not commence until ________________________.
The Executive shall also be eligible, during the Employment Term, to receive
such other compensation, whether in the form of cash bonuses, incentive
compensation, stock options, stock appreciation rights, restricted stock awards
or otherwise (collectively, the "Additional Compensation"), as the Board of
Directors (or any committee of the Board) may, in its discretion, approve. The
Annual Salary and the Additional Compensation shall be payable in accordance
with the applicable payroll and/or other compensation policies and plans of the
Company as in effect from time to time, less such deductions as shall be
required to be withheld by applicable law and regulations.
3.2 Participation in Employee Benefit Plans. The Executive shall be
permitted, during the Employment Term, if and to the extent eligible, to
participate in any group life, hospitalization or disability insurance plan,
health program, pension plan, similar benefit plan or other "fringe benefits" of
the Company, which may be available to all other senior executives of the
Company generally on the same terms as such other executives.
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3.3 Executive Support. Subject to Section 1.3 above, the Company
shall provide to the Executive office facilities, furniture, fixtures and
equipment, secretarial and support personnel and other executive support
services as the Executive shall reasonably require in connection with his
performance of his obligations under this Agreement.
3.4 Reimbursement of Business Expenses. The Executive may incur
reasonable, ordinary and necessary business expenses in the course of his
performance of his obligations under this Agreement, including expenses for
travel, food and entertainment and expenses incurred pursuant to Section 1.3
above. The Company shall reimburse the Executive for all such business expenses
if (i) such expenses are incurred by the Executive in accordance with the
Company's business expense reimbursement policy, if any, as may be established
and modified by the Company from time to time, and (ii) the Executive provides
to the Company a record of (A) the amount of the expense, (B) the date, place
and nature of the expense, (C) the business reason for the expense and (D) the
names, occupations and other data concerning individuals entertained sufficient
to establish their business relationship to the Company. The Company shall have
no obligation to reimburse the Executive for expenses that are not incurred and
substantiated as required by this Section 3.4.
3.5 Stock Options. At such time as the Company issues its initial
shares of common stock to the founders (the "Effective Date"),which shares shall
be issued contemporaneously with the execution of this Agreement, the Company
will (i) grant the Executive non-qualified stock options (the "Options") to
purchase 200,000 shares of the common stock of the Company as presently
constituted, at the price per share at which shares of Common Stock are sold in
the IPO pursuant to an option agreement to be entered into (the "Option
Agreement"), and (ii) sell to the Executive 450,000 shares of common stock at
the same purchase price paid ($.001 per share) by the other founders of the
Company ("Founders' Shares"). The Founders' Shares will be fully vested on
issuance. The Options will vest as to one-third of such shares on the completion
of the Company's initial public offering ("IPO"), and as to one-third of such
shares on each of the first and second anniversaries of the IPO. The Options
shall have a term of ten (10) years from the date of grant, and may be exercised
in whole or in part, from time to time, at any time after vesting by the payment
of cash or the tender of shares of the Company's common stock having a value
equal to the exercise price of the Options being exercised, all as set forth in
the Option Agreement. Upon the issuance of shares of Common Stock in connection
with the exercise of the Options and as a condition precedent to receiving
certificates representing such Common Stock, and upon the issuance of the
Founders' Shares, Executive shall become a party to any Shareholders Agreement
entered into by the founding shareholders of the Company (the "Shareholders'
Agreement"), by executing and delivering (and by causing his spouse to execute
and deliver) a counterpart of the Shareholders Agreement provided same is then
in effect. Commencing with the IPO and for each partial or full calendar year
thereafter during the term hereof, provided Executive is then serving as an
employee of the Company, the Company shall grant to Employee options to purchase
such number of additional shares as the Board of Directors of the Company may
determine, on such terms and conditions as shall be established at such time.
3.6 Car Allowance. The Company agrees to provide a car allowance to
the Executive of $1250.00 per month, which allowence will be guaranteed in any
event through July 1999. Insurance and normal operating expenses for one
automobile will be reimbursed by the Company.
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4. Non-Competition.
4.1 Covenants Against Competition. The Executive acknowledges that
(i) the Company, which for purposes of this Section 4 includes all of its
present and future subsidiaries and affiliates, including such subsidiaries and
affiliates as may be formed or incorporated during the Restricted Period (as
defined in Section 4.1.1), is engaged in the business described in the Recitals
set forth on the first page of this Agreement (the "Business"); (ii) the
Executive is one of a limited number of persons who will perform a significant
role in developing the Business; (iii) the Business is conducted throughout the
United States; (iv) his work for the Company will give him, trade secrets of,
and confidential information concerning, the Company; (v) the agreements and
covenants contained in this Section 4 (collectively, the "Restrictive
Covenants") are essential to protect the Business and the goodwill of the
Company; (vi) he has means to support himself and his dependents other than by
engaging in the Business in violation of the Restrictive Covenants and the
Restrictive Covenants will not impair such ability. Accordingly, the Executive
agrees as follows:
4.1.1 Non-Compete. For a period commencing on the Commencement
Date and ending (i) if this Agreement is terminated pursuant to its Section
5.3, on the date which is one year from the effective date of the
Executive's termination or (ii) otherwise, on the third anniversary of the
date this Agreement is otherwise terminated (the "Restricted Period"), the
Executive shall not (A) engage, as an officer, director or in any other
managerial capacity or as an owner, co-owner or other investor of or in,
whether as an employee, independent contractor, consultant or advisor, or
as a sales or manufacturer's representative or distributor of any kind, in
any business selling any products or providing any services which are sold
or offered by the Company, or any of its then current vendors or suppliers,
on the date the Executive's employment is terminated, within any territory
surrounding any sales office or regional center (each a "facility") in
which the Company was engaged in business immediately prior to the date of
the Executive's termination of employment (for purposes of this Section
4.1, the territory surrounding a facility shall be: (A) the city, town or
village in which the facility is located, (B) the county or parish in which
the facility is located, (C) the counties or parishes contiguous to the
county or parish in which the facility is located, (D) the area located
within 100 miles of the facility and (E) the area in which the facility
regularly makes sales or provides services, all of such locations being
herein collectively called the "Territory"), or (B) call on any person or
entity that at the time is, or at any time within one year prior to the
date of termination of the Executive's employment was, a customer of the
Company within the Territory, for the purpose of soliciting or selling any
product or service which is then sold or offered within the Territory by
the Company or any of its then current vendors or suppliers, if the
Executive has knowledge of that customer relationship; provided, however,
that nothing in this Section 4.1.1 shall prohibit the Executive from
owning, directly or indirectly, solely as an investment, securities of any
entity traded on any national securities exchange or over-the-counter
market if the Executive is not a controlling person of, or a member of a
group which controls, such entity and does not, directly or indirectly, own
five percent or more of any class of securities of such entity.
4.1.2 Confidential Information; Personal Relationships. During
the Restricted Period and thereafter, the Executive shall keep secret and
retain in strict confidence, and shall not use for the benefit of himself
or others, all confidential matters of
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the Company, including, without limitation, "know-how," trade secrets,
customer lists, details of client or consultant contracts, pricing
policies, operational methods, marketing plans or strategies, product
development techniques or plans, business acquisition plans, new personnel
acquisition plans, methods of production and distribution, technical
processes, designs and design projects, inventions and research projects of
the Company learned by the Executive heretofore or during the Restricted
Period; nor shall the Executive exploit for his own benefit, or the benefit
of others, personal relationships with customers, suppliers or agents of
the Company in connection with or adversely affecting the Business formed
previously or during the Restricted Period.
4.1.3 Property of the Company. All memoranda, notes, lists,
records and other documents or papers (and all copies thereof), including
such items stored in computer memories, on microfiche or by any other
means, made or compiled by or on behalf of the Executive, or made available
to the Executive relating to the Company, other than purely personal
matters, are and shall be the Company's property and shall be delivered to
the Company promptly upon the termination of the Executive's employment
(whether such termination is for Cause, as hereinafter defined, or
otherwise) or at any other time on request of the Company.
4.1.4 Employees of the Company. During the Restricted Period and
thereafter for as long as the Executive shall remain an employee of or
consultant to the Company, the Executive shall not, directly or indirectly,
hire or solicit any employee or independent sales agent of the Company away
from the Company or encourage any such employee or agent to leave such
employment.
4.1.5 Consultants of the Company. During the Restricted Period
and thereafter for as long as the Executive shall remain an employee of or
consultant to the Company, the Executive shall not, directly or indirectly,
hire or solicit any consultant then under contract with the Company or
encourage such consultant to terminate such relationship.
4.1.6 Acquisition Candidates. During the Restricted Period and
thereafter for as long as the Executive shall remain an employee of or
consultant to the Company, the Executive shall not call on any Acquisition
Candidate (as defined below in this Section 4.1.6), with the knowledge of
such Acquisition Candidate's status as such, for the purpose of acquiring,
or arranging the acquisition of, that Acquisition Candidate by any person
or entity other than the Company. In this Section 4.1.6 "Acquisition
Candidate" means any person or entity engaged in the Business and (i) which
was called on by the Company, in connection with the possible acquisition
by the Company of that person or entity, or (ii) with respect to which the
Company has made an acquisition analysis.
4.2 Rights and Remedies upon Breach. If the Executive breaches or
threatens to commit a breach of the Restrictive Covenants, the Company shall
have the following rights and remedies, each of which shall be independent of
the others and severally enforceable, and each of which is in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity:
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4.2.1 Specific Performance. The right and remedy to have the
Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of the
Restrictive Covenants would cause irreparable injury to the Company and
that money damages would not provide an adequate remedy to the Company.
4.2.2 Accounting. The right and remedy to require the Executive
to account for and pay over to the Company all compensation, profits,
monies, accruals, increments or other benefits derived or received by the
Executive as the result of any transaction constituting a breach of the
Restrictive Covenants.
4.3 Severability of Covenants. The Executive acknowledges and agrees
that the Restrictive Covenants are reasonable and valid in geographical and
temporal scope and in all other respects. If any court determines that any of
the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be affected and shall
be given full effect, without regard to the invalid portions.
4.4 Blue-Pencilling. If any court determines that any Restrictive
Covenant, or any part thereof, is unenforceable because of the duration or
geographic scope of such provision, such court shall have the power to reduce
the duration or scope of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable.
4.5 Enforceability in Jurisdictions. The Company and the Executive
intend to and hereby confer jurisdiction to enforce the Restrictive Covenants
upon the courts of any jurisdiction within the geographical scope of the
Restrictive Covenants. If the courts of any one or more of such jurisdictions
hold the Restrictive Covenants unenforceable by reason of the breadth of such
scope or otherwise, it is the intention of the Company and the Executive that
such determination not bar or in any way affect the Company's right to the
relief provided above in the courts of any other jurisdiction within the
geographical scope of the Restrictive Covenants, as to breaches of such
covenants in such other respective jurisdictions, such covenants as they relate
to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
5. Termination.
5.1 Termination upon Death. If the Executive dies during the
Employment Term, this Agreement shall terminate, except that the Executive's
legal representatives, successors, heirs or assigns shall be entitled to receive
the Annual Salary, the Additional Compensation and other accrued benefits, if
any, earned up to the date of the Executive's death; provided, however, if any
Additional Compensation or other benefits are governed by the provisions of any
written employee benefit plan or policy of the Company, any written agreement
contemplated thereunder or any other separate written agreement entered into
between the Executive and the Company, the terms and conditions of such plan,
policy or agreement shall control in the event of any discrepancy or conflict
with the provisions of this Agreement regarding such Additional Compensation
orother benefit upon the death, termination or disability of the Executive.
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5.2 Termination for Cause. At any time during the Employment Term,
the Company shall have the right, exercisable by serving notice effective in
accordance with its terms, to terminate the Executive's employment under this
Agreement and discharge the Executive for Cause (as hereinafter defined). If
such right is exercised, the Company's obligation to the Executive shall be
limited to the payment of any unpaid Annual Salary, Additional Compensation and
other benefits, if any, accrued up to the effective date (which shall not be
retroactive) specified in the Company's notice of termination. As used in this
Section 5.2 and in Section 5.3 below, the term "Cause" shall mean that the Board
of Directors shall have determined that (i) there has been a material breach by
the Executive of the terms of this Agreement, (ii) the Executive has willfully
and persistently failed or refused to follow the reasonable policies and
directives established by the Board of Directors or executive officers of the
Company senior to the Executive, (iii) the Executive has wrongfully
misappropriated money or other assets or properties of the Company or any
subsidiary or affiliate of the Company, (iv) the Executive has been convicted of
any felony or other serious crime, (v) the Executive's chronic absenteeism,
neglect of duties, alcoholism or drug addiction, or (vi) the Executive has
exhibited gross moral turpitude relevant to his office or employment with the
Company or any subsidiary or affiliate of the Company.
5.3 Termination Without Cause. At any time during the period
beginning on the first anniversary of the Commencement Date, but in no event
prior to the IPO, and continuing through the end of the Employment Term, the
Company shall have the right, exercisable by serving notice effective in
accordance with its terms, to terminate the Executive's employment under this
Agreement and discharge the Executive without Cause. If such right is exercised,
the Company's obligation to the Executive shall be limited to the payment of any
unpaid Annual Salary, Additional Compensation and other benefits, if any,
accrued up to the effective date (which shall not be retroactive) specified in
the Company's notice of termination, plus payment of any Annual Salary which
otherwise would be payable to the Executive until the date which is one year
from the effective date of the Executive's termination.
5.4 Termination upon Disability or by Executive. If during the
Employment Term the Executive becomes physically or mentally disabled, whether
totally or partially, as evidenced by the written statement of a competent
physician licensed to practice medicine in the United States, so that the
Executive is unable to substantially perform his services hereunder for (i) a
period of six consecutive months, or (ii) for shorter periods aggregating six
months during any twelve-month period, the Company may at any time after the
last day of the six consecutive months of disability or the day on which the
shorter periods of disability equal an aggregate of six months, by written
notice to the Executive, terminate the Executive's employment hereunder. If such
right is exercised, the Company's obligation to the Executive shall be limited
to the payment of any unpaid Annual Salary, Additional Compensation and other
benefits, if any, accrued up to the effective date (which shall not be
retroactive) specified in the Company's notice of termination, plus payment of
any Annual Salary which otherwise would be payable to the Executive during the
six-month period following such effective date. If Executive terminates his
employment hereunder for any reason, the Company's obligation to the Executive
shall be limited to the payment of any unpaid Annual Salary, Additional
Compensation and other benefits, if any, accrued up to the effective date of
such termination.
6. Insurance. The Company may, from time to time, apply for and take
out, in its own name and at its own expense, naming itself or others as the
designated beneficiary (which it may
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change from time to time), policies for health, accident, disability or other
insurance upon the Executive or his life, in any amount or amounts that it may
deem necessary or appropriate to protect its interest. The Executive agrees to
aid the Company in procuring such insurance by submitting to reasonable medical
examinations and by filling out, executing and delivering such applications and
other instruments in writing as may reasonably be required by an insurance
company or companies to which any application or applications for insurance may
be made by or for the Company.
7. Indemnification. The Executive shall be entitled to the benefit of
the indemnification obligations of the Company set forth in the Company's
Articles of Incorporation, as amended through the date of this Agreement and the
Company's bylaws as in effect at the date of this Agreement.
8. Other Provisions.
8.1 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission or,
if mailed, ten days after the date of deposit in the United States mail or
Canada Post, as follows:
(i) if to the Company, to:
2777 Allen Parkway
Suite 800
Houston, Texas 77019
U.S.A.
Telecopy No.: (281) 698-2585
(ii) if to the Executive, to:
195 Hudson Drive
Toronto, Ontario M4T 2K7
Canada
Telephone No: 416-486-5544
Telecopy No.: 416-481-7113
Either party may change its address for notice hereunder by notice to the
other party.
8.2 Entire Agreement. This Agreement contains the entire agreement
and understanding between the parties with respect to its subject matter and
supersedes all prior agreements, written or oral, with respect thereto;
provided, however, that nothing herein shall in any way limit the obligation,
rights or liabilities of the parties under any written stock option agreement
separately entered into by the parties.
8.3 Waivers and Amendments. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving
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compliance. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any right, power or privilege hereunder, nor any single
or partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder.
8.4 Governing Law; Venue. This Agreement, except as set forth in
Section 4.5 hereof, shall be governed by, and construed in accordance with, the
laws of the State of Texas, without reference to principles governing choice or
conflicts of law.
8.5 Assignment. This Agreement, and any rights and obligations
hereunder, may not be assigned by any party hereto without the prior written
consent of the other party, except that the Company may assign this Agreement to
any of its subsidiaries or affiliates without the Executive's consent provided
such assignment does not diminish any of the Executive's benefits, rights or
obligations hereunder.
8.6 Execution and Counterparts. This Agreement may be executed, by
facsimile or other evidence of manual execution, in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
8.7 Headings. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WORK INTERNATIONAL CORPORATION
By: /s/ Richard K. Reiling
--------------------------------
Richard K. Reiling
EXECUTIVE:
/s/ Bruce Garfield
-----------------------------------
Bruce Garfield French
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