1
Exhibit 10.94
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this
1st day of August, 2000, by and between Outsource International, Inc., a Florida
corporation (the "Company"), and Richard Mazelsky ("Employee").
WHEREAS, the Company, through its Board of Directors, desires to retain the
services of Employee, and Employee desires to be retained by the Company, on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee hereby
accepts employment, as Executive Vice President of the Company and Chief
Operating Officer of the Company's Tandem division, subject to the terms of this
Agreement. Employee will work at the Company's headquarters, currently located
at 1690 South Congress Avenue, Suite 210, Delray Beach, Florida 33445.
2. TERM. The term ("Term") of this Agreement shall commence on the 1st day
of August, 2000 and shall continue until terminated by Employee or by the
Company in accordance with the terms hereof.
3. DUTIES. During his employment hereunder, Employee will serve as
Executive Vice President of the Company and Chief Operating Officer of the
Company's Tandem division. Employee shall report directly to the President and
Chief Executive Officer of the Company (the "CEO") and shall serve at the CEO's
direction. Employee shall perform services as assigned by the CEO consistent
with the title of Executive Vice President. Employee shall diligently perform
such duties and shall devote his entire business skill, time and effort to his
employment and his duties hereunder and shall not during the Term, directly or
indirectly, alone or as a member of a partnership, or as an officer, director,
employee or agent of any other person, firm or business organization engage in
any other business activities or pursuits requiring his personal service that
materially conflict with his duties hereunder or the diligent performance of
such duties. This shall not, however, preclude Employee from serving on boards
of directors of other corporations; provided that such service does not conflict
with the duties of Employee hereunder or result in a conflict of interest.
2
4. COMPENSATION.
a. SALARY. Employee shall be paid an initial salary of $215,000.00 per
year for the first year of employment, payable in equal bi-weekly
installments of $8,269.23, less deduction for federal withholding,
Medicare and FICA taxes ("Annual Base Salary"). On or about May 1,
2001, and annually thereafter, the Company will conduct an annual
performance (salary) review with respect to Employee and advise
Employee of any salary adjustments along with the reasons for such
adjustments.
b. BONUS. In addition to the Annual Base Salary, Employee shall be
entitled to an annual performance bonus, with an initial targeted
bonus for year one of the Agreement (i.e., Fiscal year ending April 1,
2001 ("Fiscal Year 2001")) of 40% of Annual Base Salary, in
accordance with the management bonus program currently in effect
(hereafter, the "Management Bonus Program"). Unless otherwise provided
herein, the annual performance bonus shall be paid, if at all, after
completion of the Company's financial statements for the fiscal year
and filing of same with the SEC. For year one of the Agreement,
Employee shall receive under the Management Bonus Program a minimum
performance bonus in the amount of $40,000.00 (the "Minimum
Performance Bonus") irrespective of the Company's performance in
Fiscal Year 2001, to be paid 30 days after the close of Fiscal Year
2001 (the "First Payment"), but only if Employee is employed by the
Company on the date of the First Payment. The additional $46,000.00
that would otherwise be due Employee for Fiscal Year 2001 under the
Management Bonus Program shall be paid if the Company achieves the
targets set forth in the field incentive plan of such Program. There
will be no Minimum Performance Bonus payment after the first year of
employment (after Fiscal Year 2001). For year two of the Agreement and
thereafter, Employee shall receive payments under the Management Bonus
Program with a target of 40% based on agreed-upon objectives, as, if
and when the other executive officers of the Company receive such
payments.
2
3
c. STOCK OPTIONS. Effective the first date of Employee's employment with
the Company, Employee will receive a grant under the Company's Stock
Option Plan of options to acquire 60,000 shares of the Company's
common stock with a four-year straight-line vesting period. The
exercise price of the options shall be the "Fair Market Value" on the
date of the grant. "Fair Market Value" shall mean the closing price of
the shares of the Company's common stock on the date of grant. These
options shall vest 25% at the completion of each year of employment
with the Company (100% vested after the end of year four). In
addition, if the Company achieves its Fiscal Year 2001 business plan,
Employee shall receive an additional grant of options to purchase
25,000 shares of the Company's common stock, at the Fair Market Value
on the date of the grant. These options shall likewise vest 25% at the
completion of each year of employment with the Company (100% vested
after the end of year four.) Further, on Employee's first year
anniversary date with the Company Employee shall be granted an option
to purchase an additional 25,000 shares of the Company's common stock,
at the Fair Market Value on the date of the grant. These options shall
also vest 25% at the completion of each year of employment with the
Company (100% vested after the end of year four.) The options shall be
incentive stock options to the extent permitted by law, and shall be
granted pursuant to the Company's Stock Option Plan and a written
stock option agreement. The term of the options shall be ten years
(subject to expiration per the terms of the stock option agreement and
the Internal Revenue Code).
d. INSURANCE. During his employment hereunder, Employee shall be entitled
to participate in such health, life, disability and other insurance
programs, if any, that the Company may offer to other key executive
employees of the Company from time to time. Employee will be eligible
for such benefits as of September 1, 2000.
e. OTHER BENEFITS. During his employment hereunder, Employee shall be
entitled to such other benefits that the Company may offer to other
key executive employees of the Company from time to time.
f. VACATION. Employee shall be entitled to two weeks vacation leave
during calender year 2000 and three weeks of vacation leave during
calendar year 2001 and each year thereafter during the term of this
Agreement (in addition to holidays). Additional amounts of vacation
leave may be set forth in the vacation policy that the Company shall
establish from time to time. Except with respect to vacation time
unused as the result of a written request by the Company to postpone a
vacation, any unused vacation from one calendar year shall not
carry-over to any subsequent calendar year.
3
4
g. EXPENSE REIMBURSEMENT. Employee shall, upon submission of appropriate
supporting documentation, be entitled to reimbursement of reasonable
out-of-pocket expenses incurred in the performance of his duties
hereunder in accordance with policies established by the Company. Such
expenses shall include, without limitation, reasonable travel and
entertainment expenses, gasoline and toll expenses and cellular phone
use charges, if such charges are directly related to the business of
the Company.
h. INTERIM LIVING AND RELOCATION EXPENSES. The Company will reimburse
Employee for the cost of a reasonable two bedroom, furnished apartment
residence in the Delray Beach/Boca Raton, Florida area for a period of
60 days from the first day of employment, as well as the cost of a
rental car (full-size), meals, and other appropriate miscellaneous
living expenses during this period. During the 60-day interim living
period the Company will also reimburse Employee for two house-hunting
trips for Employee's spouse and bi-weekly return trips by the Employee
to Chicago, IL. Additionally, Employee will be reimbursed for the real
estate commission "only" for the sale of Employee's home and 2.5% of
purchase price as reimbursement for closing expenses relating to the
purchase of Employee's home in the Delray Beach, Florida area. In
addition, the Company will reimburse Employee for the expenses of
packing, loading, transporting and unloading all of Employee's
household belongings from his residence in Naperville, IL to
Employee's new residence in Florida. The Company will reimburse
Employee's relocation expenses as aforesaid through a gross-up of
Employee's W-2 salary (to be tax neutral). Employee agrees to repay
the Company for the total amount of the foregoing interim living and
relocation expenses should the Employee voluntarily terminate his
employment with the Company prior to the end of the first full year of
employment under this Agreement. Employee is under no obligation to
repay interim living and relocation expenses in the event his
employment is terminated by the Company.
5. GROUNDS FOR TERMINATION. The Board of Directors of the Company may
terminate this Agreement for any reason at any time including, without
limitation, for "Cause." As used herein, "Cause" shall mean any of the
following: (i) failure on the part of Employee to disclose to Company in writing
on or before the date hereof Employee's breach of or default under any
employment, non-compete, confidentiality or other agreement between Employee and
any prior employer of Employee (including without limitation any breach or
default that might result from Employee's entering into or performing his duties
and obligations under this Agreement); (ii) an act of willful misconduct or
gross negligence by Employee in fulfilling his obligations to the Company
(determined without regard to the financial performance of the Company or the
manner of performance by Employee of his
4
5
duties in the ordinary course of business); (iii) indictment of Employee for a
felony involving moral turpitude, whether relating to his employment or
otherwise; (iv) an act of dishonesty or breach of trust on the part of Employee
resulting or intended to result directly or indirectly in personal gain or
enrichment at the expense of the Company; (v) conduct on the part of Employee
intended to injure the business of the Company; (vi) Employee's addiction to any
drug or chemical; (vii) Employee's insubordination unless resulting from
Employee's refusal to do an illegal act; (viii) failure to establish and
maintain a residence within a reasonable daily commute to the Company's
headquarters within six (6) months of the date Employee commences Employment
with the Company. The existence of any of the foregoing events or conditions,
except under clause (iii), shall be determined by the Board of Directors
(excluding the Employee) in the exercise of its reasonable judgment provided
that if such occurrence relates to section (i) or(vi) above, it must persist
more than (a) five (5) days after notice is given to Employee by personal
delivery or (b) ten (10) days after a notice is given to Employee by any other
means, each notice which details the occurrence. Notwithstanding the foregoing,
if occurrence under sections (ii), (v) or (vii) cannot reasonably be remedied
within the time periods set forth, the Board of Directors shall not exercise its
right to terminate under this section if Employee begins to remedy the
occurrence within the time period and continues actively and diligently in good
faith to completely remedy such occurrence. As used herein "insubordination"
means Employee failing to use his best efforts to comply with a written
directive made by the Company's Board of Directors for any action or inaction
not inconsistent with the duties set forth here.
6.PAYMENT AND OTHER PROVISIONS UPON TERMINATION.
a. In the event that Employee's employment with the Company (including
its subsidiaries) is terminated by the Company for Cause as provided
in Paragraph 5; then, on or before Employee's last day of employment
with the Company:
i. SALARY AND BONUS PAYMENTS: The Company shall pay in a lump sum to
Employee such amount of compensation earned by Employee hereunder
for services rendered to the Company as of the time of such
termination, as well as compensation for unused vacation time, as
has accrued but remains unpaid. Any and all other rights granted
to Employee under this Agreement shall terminate as of the date
of termination.
ii. NONCOMPETITION/NONSOLICITATION PERIOD. The provisions of
Paragraph 9 shall continue to apply with respect to Employee for
a period of one-year following the date of termination.
5
6
b. In the event that: Employee's employment with the Company (including
its subsidiaries) is terminated by the Company for any reason other
than for Cause as provided in Paragraph 5 and other than as a
consequence of Employee's death, disability, or normal retirement
under the Company's retirement plans and practices, then:
i. SALARY AND BONUS PAYMENTS: The Company shall pay to Employee, as
compensation for services rendered to the Company, a total of six
months (13 bi-weekly payments) of the Employee's Annual Base
Salary in effect at the time (the "Cash Amount"). The Cash Amount
shall be paid to Employee in periodic installments in accordance
with the regular salary payment practices of the Company, with
the first such installment to be paid on or before Employee's
last day of employment with the Company.
ii. BENEFIT PLAN COVERAGE: The Employee's Benefit Plan Coverage will
continue for six (6) months beyond the last day of the month in
which his employment is terminated, but shall cease thereafter.
If Employee is not covered by a health insurance plan through a
new employer as of that date, Employee will be eligible for COBRA
benefits. Should Employee elect COBRA, Employee will be
responsible for paying any and all COBRA premiums.
iii. NON-COMPETITION/NON-SOLICITATION PERIOD. The provisions of
Paragraph 9 shall continue to apply with respect to Employee for
the shorter of (x) twelve (12) months following the date of
termination or (y) until such time as the Company has failed to
comply with the provisions of Paragraph 6.b.i for a an
uninterrupted 10-day period and such failure is not cured within
5 days after written notice of such failure is delivered to at
least two directors of the Company (other than Employee).
7. CHANGE OF CONTROL. In the event of a Change of Control, Employee shall
be entitled to the following benefits as of the effective date of the Change of
Control:
i. EXERCISABILITY OF STOCK OPTIONS. The Employee shall receive that
portion of the granted stock options that have vested as of that time, plus
the amount of options that are intended to vest in the year following the
Change in Control.
ii. OTHER BENEFITS. All benefits under Paragraphs 6.b.ii and 6.b.iii
shall be extended to Employee as described in such paragraphs.
6
7
c. For purposes of this Agreement, the term "Change of Control" shall
mean:
i. The acquisition, other than from the Company, by any individual,
entity or group (within the meaning of ss. 13(d)(3) or ss. 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) (any of the foregoing described in this Paragraph 7.c.i
hereafter a "Person") of 33% or more of either (a) the then outstanding
shares of Capital Stock of the Company (the "Outstanding Capital Stock") or
(b) the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors (the
"Voting Securities"), PROVIDED, HOWEVER, that any acquisition by (x) the
Company or any of its subsidiaries, or any employee benefit plan (or
related trust) sponsored or maintained by the Company or any of its
subsidiaries or (y) any Person that is eligible, pursuant to Rule 13d-1(b)
under the Exchange Act, to file a statement on Schedule 13G with respect to
its beneficial ownership of Voting Securities, whether or not such Person
shall have filed a statement on Schedule 13G, unless such Person shall have
filed a statement on Schedule 13D with respect to beneficial ownership of
33% or more of the Voting Securities or (z) any corporation with respect to
which, following such acquisition, more than 60% of, respectively, the then
outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners, respectively,
of the Outstanding Capital Stock and Voting Securities immediately prior to
such acquisition in substantially the same proportion as their ownership,
immediately prior to such acquisition, of the Outstanding Capital Stock and
Voting Securities, as the case may be, shall not constitute a Change of
Control; or
ii. Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority
of the Board, provided that any individual becoming a director subsequent
to the date hereof whose election or nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office is
in connection with an actual or threatened election contest relating to the
election of the Directors of the Company (as such terms are used in Rule
14a-11 of Regulation 14A, or any successor section, promulgated under the
Exchange Act); or
iii. Approval by the shareholders of the Company of a reorganization,
merger or consolidation (a "Business Combination"), in each case, with
respect to which all or
7
8
substantially all holders of the Outstanding Capital Stock and Voting
Securities immediately prior to such Business Combination do not, following
such Business Combination, beneficially own, directly or indirectly, more
than 60% of, respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case may
be, of the corporation resulting from Business Combination; or
iv. (a) a complete liquidation or dissolution of the Company or (b) a
sale or other disposition of all or substantially all of the assets of the
Company other than to a corporation with respect to which, following such
sale or disposition, more than 60% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors is then owned beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Capital Stock and Voting
Securities immediately prior to such sale or disposition in substantially
the same proportion as their ownership of the Outstanding Capital Stock and
Voting Securities, as the case may be, immediately prior to such sale or
disposition.
8. INDEMNIFICATION. If litigation shall be brought to enforce or interpret
any provision contained herein, the non-prevailing party shall indemnify the
prevailing party for reasonable attorney's fees (including those for
negotiations, trial and appeals) and disbursements incurred by the prevailing
party in such litigation, and hereby agrees to pay prejudgment interest on any
money judgment obtained by the prevailing party calculated at the generally
prevailing Bank of America base rate of interest charged to its commercial
customers in effect from time to time from the date that payment(s) to him
should have been made under this Agreement.
9. NON-COMPETITION AND NON-SOLICITATION.
a. The nature of the system and methods employed in the Company's
business is such that Employee will be placed in a close business and
personal relationship with the customers of the Company and be privy
to confidential customer usage and rate information. Accordingly, at
all times during the term of this Agreement and for a period of one
(1) year immediately following the termination of Employee's
employment hereunder (the "Non-competition and Non-solicitation
Period") for any reason whatsoever, and for such additional periods as
may otherwise be set forth in this Agreement in reference to this
Paragraph 9, so long as the Company continues to carry on the same
business, Employee shall not, for any reason whatsoever,
8
9
directly or indirectly, for himself or on behalf of, or in conjunction
with, any other person, persons, company, partnership, corporation or
business entity:
i. Call upon, divert, influence or solicit or attempt to call upon,
divert, influence or solicit any customer or customers of the
Company nationwide;
ii. Divulge the names and addresses or any information concerning any
customer of the Company;
iii. Disclose any information or knowledge relating to the Company,
including but not limited to, the Company's system or method of
conducting business to any person, persons, firms, corporations
or other entities unaffiliated with the Company, for any reason
or purpose whatsoever;
iv. Own, manage, operate, control, be employed by, participate in or
be connected in any manner with the ownership, management,
operation or control of the same, similar or related line of
business as that carried on by the Company ("Competition").
b. The time period covered by the covenants contained in this Paragraph 9
shall not include any period(s) of violation of any covenant or any
period(s) of time required for litigation to enforce any covenant.
c. The covenants set forth in this Paragraph 9 shall be construed as an
agreement independent of any other provision in this Agreement and
existence of any potential or alleged claim or cause of action of
Employee against the Company, whether predicted on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of the covenants contained herein. An alleged or actual breach
of the Agreement by the Company shall not be a defense to enforcement
of the provisions of this Paragraph 9.
d. Employee acknowledges that he has read the foregoing and agrees that
the nature of the geographical restrictions are reasonable given the
nature of the Company's business. In the event that these geographical
or temporal restrictions are judicially determined to be unreasonable,
the parties agree that these restrictions shall be judicially reformed
to the maximum restrictions which are reasonable.
e. Notwithstanding anything to the contrary contained herein, in the
event that Employee engages in Competition, or any conduct expressly
prohibited by this Paragraph 9 at any time during the Non-competition
and Non-solicitation Period
9
10
for any reason whatsoever, Employee shall not receive any of the
termination benefits he otherwise would be entitled to receive
pursuant to Paragraph 6 hereof.
10. CONFIDENTIALITY.
a. NONDISCLOSURE. Employee acknowledges and agrees that the Confidential
Information (as defined below) is a valuable, special and unique asset
of the Company's business. Accordingly, except in connection with the
performance of his duties hereunder, Employee shall not at any time
during or subsequent to the term of his employment hereunder disclose,
directly or indirectly, to any person, firm, corporation, partnership,
association or other entity any proprietary or confidential
information relating to the Company or any information concerning the
Company's financial condition or prospects, the Company's customers,
the design, development, manufacture, marketing or sale of the
Company's products or the Company's methods of operating its business
(collectively "Confidential Information"). Confidential Information
shall not include information, which at the time of disclosure is
known or available to the general public by publication or otherwise
through no act or failure to act on the part of Employee.
b. RETURN OF CONFIDENTIAL INFORMATION. Upon termination of Employee's
employment, for whatever reason and whether voluntary or involuntary,
or at any time at the request of the Company, Employee shall promptly
return all Confidential Information in the possession or under the
control of Employee to the Company and shall not retain any copies or
other reproductions or extracts thereof. Employee shall at any time at
the request of the Company destroy or have destroyed all memoranda,
notes, reports, and documents, whether in "hard copy" form or as
stored on magnetic or other media, and all copies and other
reproductions and extracts thereof, prepared by Employee and shall
provide the Company with a certificate that the foregoing materials
have in fact been returned or destroyed.
c. BOOKS AND RECORDS. All books, records and accounts whether prepared by
Employee or otherwise coming into Employee's possession, shall be the
exclusive property of the Company and shall be returned immediately to
the Company upon termination of Employee's employment hereunder or
upon the Company's request at any time.
11. INJUNCTION/SPECIFIC PERFORMANCE SETOFF. Employee acknowledges that a
breach of any of the provisions of Paragraphs 9 or 10 hereof would result in
immediate and irreparable injury to the Company that cannot be adequately or
reasonably compensated at
10
11
law. Therefore, Employee agrees that the Company shall be entitled, if any such
breach shall occur or be threatened or attempted, to a decree of specific
performance and to a temporary and permanent injunction, without the posting of
a bond, enjoining and restraining such breach by Employee or his agents, either
directly or indirectly, and that such right to injunction shall be cumulative to
whatever other remedies for actual damages to which the Company is entitled.
Employee further agrees that the Company may set off against or recoup from any
amounts due under this Agreement to the extent of any losses incurred by the
Company as a result of any breach by Employee of the provisions of Paragraphs 9
or 10 hereof.
12. SEVERABILITY: Any provision in this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. SUCCESSORS: This Agreement shall be binding upon Employee and inure to
his and his estate's benefit, and shall be binding upon and inure to the benefit
of the Company and any successor of the Company. Neither this Agreement nor any
rights arising hereunder may be assigned or pledged by Employee or anyone
claiming through Employee; or by the Company, except to any corporation which is
the successor in interest to the Company by reason of a merger, consolidation or
sale of substantially all of the assets of the Company. The foregoing sentence
shall not be deemed to have any effect upon the rights of Employee upon a Change
of Control.
14. CONTROLLING LAW: This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the State of Florida.
15. NOTICES. Any notice required or permitted to be given hereunder shall
be written and sent by registered or certified mail, telecommunicated or hand
delivered at the address set forth herein or to any other address of which
notice is given:
To the Company: Outsource International, Inc.
1690 South Congress Avenue
Suite 210
Delray Beach, Florida 33445
Attention: General Counsel
To Employee: Richard Mazelsky
3160 Treesdale Court
Naperville, IL 60564
11
12
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto on the subject matter hereof and may not be modified
without the written agreement of both parties hereto.
17. WAIVER. A waiver by any party of any of the terms and conditions hereof
shall not be construed as a general waiver by such party.
18. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and both of which together shall constitute a
single agreement.
19. INTERPRETATION. In the event of a conflict between the provisions of
this Agreement and any other agreement or document defining rights and duties of
Employee or the Company upon Employee's termination, the rights and duties set
forth in this Agreement shall control.
20. CERTAIN LIMITATIONS ON REMEDIES. Paragraph 6.b provides that certain
payments and other benefits shall be received by Employee upon the termination
of Employee by the Company other than for Cause. It is the intention of this
Agreement that if the Company terminates Employee other than for Cause (and
other than as a consequence of Employee's death, disability or normal
retirement), then the payments and other benefits set forth in Paragraph 6.b
shall constitute the sole and exclusive remedies of Employee.
IN WITNESS WHEREOF, this Employment Agreement has been executed by the
parties as of the date first above written.
OUTSOURCE INTERNATIONAL, INC.
By: /s/ Garry E. Meier
--------------------------------------------
Garry E. Meier
Its: President and Chief Executive Officer
EMPLOYEE:
/s/ Richard Mazelsky
------------------------------------------------
Richard Mazelsky
12