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Exhibit 10.21
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT effective as of December 9, 1997 amends and restates
that certain Employment Agreement effective June 7, 1994 by and between Norrell
Corporation, a Georgia corporation (the "Company"), and C. Douglas Miller, whose
address is 745 Whitmere Court, Atlanta, Georgia 30327 (the "Executive").
WITNESSETH:
WHEREAS, the Company is engaged directly and through its franchisees
and licensees in and throughout the Area (as defined herein) in the Business of
the Company (as defined herein); and
WHEREAS, the Company desires to continue the employment of the
Executive as Chairman of the Board and Chief Executive Officer of the Company
and the Executive desires to continue such employment on the terms and
conditions hereinafter set forth; and
WHEREAS, in the course of the Executive's employment, the Executive has
gained knowledge of the business, affairs, finances, management, marketing
programs and philosophy, customers and methods of operation of the Company, has
been trained at the expense of the Company in the operation and management of
the Business of the Company and the marketing and sale of the Company's services
through the use of techniques, systems, forms and methods used and devised by
the Company, has access to lists of the Company's customers in the Area and
their needs and will or has become personally known to and acquainted with the
Company's major customers in the Area thereby establishing a personal
relationship with such customers for the benefit of the Company;
WHEREAS, the Company would suffer irreparable harm if the Executive
were to use such knowledge, information, business acumen and personal
relationships in competition with the Company; and
WHEREAS, the Company recognizes the contributions made by the Executive
to the Company in the past and, to assure that the Company will continue to have
the Executive's services available to it, desires to provide the Executive with
benefits upon the occurrence of certain contingencies in addition to the annual
compensation payable hereunder;
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NOW, THEREFORE, in consideration of the continued employment of the
Executive by the Company, the above premises and the mutual agreements
hereinafter set forth, the parties agree as follows:
1. Definitions.
(a) "Affiliate" or "Affiliated" means any person, firm, corporation,
partnership, association or entity that directly or indirectly controls, is
controlled by, or is under common control with a specified person, firm,
corporation, partnership, association or entity.
(b) "Area" shall mean the area set forth in Exhibit A hereto and made a
part hereof. As and when the territory in which the Executive performs his
Duties expands, Exhibit A may, upon the mutual agreement of the Company and the
Executive, be amended to include such additional territory. Such amended Exhibit
A, when executed by the Company and the Executive, shall be attached hereto and
shall replace the previous Exhibit A hereto.
(c) "Associate" means (i) any corporation, partnership or other entity
of which a specified person is an officer or partner, or is, directly or
indirectly, the beneficial owner of ten percent (10%) or more of any class of
equity securities thereof, (ii) any trust or estate in which the specified
person has a substantial beneficial interest or as to which the specified person
serves as trustee or in a similar fiduciary capacity, (iii) any relative or
spouse of such specified person, or any relative of such spouse, who has the
same home as such specified person, and (iv) any person who is a trustee,
officer or partner of such specified person or of any corporation, partnership
or other entity that is an Affiliate of such specified person.
(d) "Beneficial Owner" shall be defined by reference to Rule 13d-3
under the Exchange Act as such Rule is in effect on the date hereof; provided,
however, that any individual, corporation, partnership, Group, association or
other person or entity which, directly or indirectly, owns or has the right to
acquire any of the Company's outstanding securities entitled to vote generally
in the election of directors at any time in the future, whether such right is
contingent, absolute, direct or indirect, pursuant to any agreement, arrangement
or understanding or upon exercise of conversion rights, warrants or options or
otherwise, shall be deemed the Beneficial Owner of such securities.
(e) "Business of the Company" shall mean and include the business of
marketing and providing personnel, including but not limited to office,
professional and marketing and providing light industrial personnel, on a
temporary basis to customers located in the Area, and marketing and providing to
customers located in the Area facilities staffing, contract services, management
services, outsourcing, training, and data entry services or the licensing or
franchising of others to engage in any such business. It shall also mean the
business of
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conducting the affairs and activities of the Corporate Office in conjunction
with all such business described in this section.
(f) "Cause" shall mean conduct of the Executive amounting to fraud,
dishonesty, gross or willful misconduct or neglect of duty, conviction of any
federal, state or local laws involving a felony or crime involving fraud or
moral turpitude (other than pursuant to actions taken at the direction or with
the approval of the Board of Directors of the Company), or after five (5) days
notice and failure to cure, engaging in activities prohibited by Sections 5, 6,
7 and 8 hereof.
(g) A "Change of Control" shall be deemed to have occurred if and when
(i) any individual, corporation, partnership, Group, association or other person
or entity, together with his, its or their Affiliates or Associates (other than
a trustee or other fiduciary holding securities under an employee benefit plan
of the Company) hereafter becomes the Beneficial Owner of securities of the
Company representing thirty percent (30%) or more of the combined voting power
of the Company's then outstanding securities entitled to vote generally in the
election of directors; (ii) the Continuing Directors of the Company shall at any
time fail to constitute a majority of the members of the Board of Directors of
the Company; or (iii) all or substantially all of the assets of the Company are
sold, conveyed, transferred or otherwise disposed of, whether through one event
or a series of related events, or the Company is a party to a merger
transaction, without such sale, transfer disposition, or merger being approved
by at least two-thirds (2/3) of the Continuing Directors of the Company.
(h) "Competing Business" shall mean any business which is the same or
substantially the same as the Business of the Company and its subsidiaries.
(i) "Confidential Information" shall mean all information related to
the Business of the Company which (i) derives economic value, actual or
potential, from not being generally known to other persons who can obtain
economic value from its disclosure or use and (ii) is the subject of efforts by
the Company that are reasonable under the circumstances to maintain its secrecy.
Assuming the criteria in clauses (i) and (ii) above are met, Confidential
Information shall include, without limitation, actual and potential customer
lists, sales and marketing information, customer account records, training and
operations material and memoranda, computer software and systems, personnel
records, code books, pricing information and financial information concerning or
relating to the business, accounts, customers, associates and affairs of the
Company or its subsidiaries, franchisees or licensees and all physical
embodiments of the foregoing. Confidential Information shall not include (i)
information released to the public at large without restriction, (ii)
information generally known to be obtainable from public sources in usable form
without significant effort or
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expense, (iii) information lawfully and independently developed or acquired
without reliance in any way on the information received pursuant to the
Executive's employment hereunder, and (iv) general skills and learning lawfully
and independently acquired.
(j) "Continuing Director" means a director who either was a member of
the Board of Directors of the Company on the date hereof, or who becomes a
member of the Board of Directors of the Company subsequent to such date and
whose election or nomination for election by the Board of Directors of the
Company was Duly Approved by the Continuing Directors of the Company at the time
of such election or nomination, either by a specific vote or by approval of the
proxy statement issued by the Company on behalf of the Board of Directors of the
Company in which such person is named as a nominee for director.
(k) "Corporate Office" shall mean the office of the Company at 3535
Piedmont Road, N.E., Atlanta, Georgia 30305.
(1) "Duly Approved by the Continuing Directors" means an action
approved by the vote of at least a majority of the Continuing Directors then on
the Board of Directors of the Company; provided, however, if the votes of such
Continuing Directors in favor of such action would be insufficient to constitute
an act of the entire Board of Directors of the Company as if a vote by all of
its members had been taken, or if the number of persons constituting the
Continuing Directors of the Company is three or less, then the term "Duly
Approved by the Continuing Directors" shall mean an action approved by the
unanimous vote of the Continuing Directors then on the Board of Directors of the
Company.
(m) "Duties" shall mean the duties set forth on Exhibit B attached
hereto and made a part hereof. As and when the Duties of the Executive expand or
change, Exhibit B may, upon the written agreement of the Company and the
Executive, be amended to reflect such additions or changes in the Executive's
Duties. Such amended Exhibit B, when executed by the Company and the Executive,
shall be attached hereto and shall prospectively replace previous Exhibit B
hereto in its entirety.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(o) "Group" means persons who act in concert as described in Section
13(d)(3) of the Exchange Act as in effect on the date hereof.
(p) "Invention" means any discovery, whether or not patentable,
including, but not limited to, any useful process, method, formula, technique,
machine, manufacture, composition of matter, algorithm or computer program, as
well as improvements thereto, which is new or which the Executive has a
reasonable basis to believe may be new, except for those processes, methods,
etc., which are not related to the Company's business.
(q) "Subject Invention" means any Invention which is conceived by the
Executive alone or in a joint effort with others during the Executive's
employment by the Company which (i) may
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be reasonably expected to be used in a product of the Company; (ii) results from
work that the Executive has been assigned as part of his Duties as an employee
of the Company; (iii) is in an area of technology which is the same as or
substantially related to the areas of technology with which the Executive is
involved in the performance of his Duties as an employee of the Company; or (iv)
is useful, or which the Executive reasonably expects may be useful, in any
manufacturing or product design process of the Company.
(r) "Work" means a copyrightable work of authorship, including without
limitation, any technical descriptions for products, user's guides,
illustrations, advertising materials, computer programs (including the contents
of read only memories) and any contribution to such materials, but shall not
include any works which are not related to the Company's business.
2. Terms of Employment; Duties.
(a) The Company agrees to continue the employment of the Executive as
Chairman of the Board and Chief Executive Officer of Norrell Corporation and the
Executive agrees to continue such employment with the Company subject to the
terms and conditions hereof.
(b) All funds and property received by the Executive on behalf of the
Company or its parent or any Affiliated corporation shall be received and held
by the Executive in trust, and the Executive shall account for and remit all
such funds to the Company.
3. Compensation.
(a) For services provided hereunder, the Company shall pay to the
Executive an annual salary of Seven Hundred Fifty Thousand Dollars ($750,000)
per year subject to adjustment from time to time by written agreement of the
Executive and the Company. Such annual salary shall be paid periodically in
accordance with the Company's generally applicable executive officer payroll
practices in effect from time to time and shall be subject to deductions for
income and other taxes as required by law. The Executive shall also be paid a
bonus, if earned, in accordance with the terms of Exhibit D attached hereto,
subject to adjustment from time to time by written agreement of the Executive
and the Company. The Executive shall receive the employee benefits, or their
equivalent, that the Executive is currently receiving including MERP, PERK,
country club dues, car allowance, and the like; benefits may be changed from
time to time by written agreement of the Executive and the Company. Certain
employee benefits which Executive is currently receiving are listed on Exhibit E
attached hereto.
(b) The Executive shall be entitled to be reimbursed in accordance with
the generally applicable executive officer reimbursement policies of the
Company, as adopted and amended from time to time, for all reasonable and
necessary expenses incurred by the Executive in connection with the performance
of his Duties of employment or other obligations hereunder; provided the
Executive shall, as a condition of such reimbursement, submit verification of
the nature and amount of such expenses in accordance with the reimbursement
policies from time to time reasonably adopted by the Company.
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(c) The Executive shall receive no compensation in addition to that set
forth in this Section 3 for any services rendered by the Executive in any
capacity to the Company or any affiliated corporation, except that the Executive
shall be entitled to participate in any present or future incentive
compensation, bonus, profit-sharing, stock option, stock purchase, pension,
retirement, medical or insurance plan of the Company approved by the Board of
Directors of the Company and made available to any other executive employee of
the Company.
4. Termination of Employment.
(a) The employment of the Executive by the Company may be terminated by
the Company for Cause upon written communication of the instance of the problem
conduct to the Executive by written notice from the Company. The Executive shall
have the opportunity to cure such problem conduct within a reasonable period of
time specified in such notice, which period shall not be less than five (5)
business days following receipt of such written notice from the Company. The
Chairman of the Compensation Committee of the Board of Directors, or the Board
of Directors of Company, itself, or a committee designated by the Board of
Directors of Company for such purpose, shall also provide the Executive with an
opportunity to meet with him or it in order to provide the Executive an
opportunity to refute or explain the problem conduct referred to in such written
notice. Such refutation or explanation reasonably satisfactory to the Chairman
of the Compensation Committee, the Board of Directors, or a committee so
designated by the Board, as the case may be, shall constitute a cure.
(b) The Executive may terminate this Agreement and his employment
hereunder voluntarily by giving the Company no less than one month prior notice.
(c) The Executive may terminate this Agreement and his employment
hereunder by giving the Company no less than two (2) weeks prior notice if (i)
material changes in the nature or scope of the Executive's Duties are made
without his written consent, (ii) any change of the Executive's title is made
without his written consent, (iii) the Executive's office is relocated to a
location more than twenty (20) miles from the city limits of Atlanta, Georgia,
(iv) the Executive's compensation or benefits are reduced without his written
consent, (v) the Company breaches this Agreement, or (vi) a Change of Control
occurs.
(d) If the Company terminates this Agreement and the Executive's
employment hereunder for any reason specified in subparagraph (a) of this
Section 4 or the Executive terminates this Agreement and his employment
hereunder voluntarily other than pursuant to subparagraph (c) of this Section 4,
the Company shall have no further obligation to the Executive or his personal
representative with respect to this Agreement or his employment hereunder except
for compensation accrued hereunder and unpaid at the date of such termination
and except with respect to the Executive's participation in benefit plans of the
Company and his rights and benefits under any other agreement between him and
the Company, all of which shall be governed by such other plans and agreements.
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(e) If (i) a Change in Control occurs, and Executive notifies Company
within six months (6) months of the date of such Change of Control in writing,
or (ii) or the Company terminates this Agreement and the employment of the
Executive hereunder without Cause, or (iii) the Executive terminates this
Agreement and his employment hereunder for any reason specified in subparagraph
(c) of this Section 4, (A) the Executive shall be entitled to receive, for a
period of thirty-six (36) months from the date of termination, the compensation
set forth in Section 3 hereof, (B) all options to purchase stock of the Company
held by the Executive shall be fully vested and shall become immediately
exercisable, (C) upon request of the Executive, the Company shall purchase for
cash, within ten (10) days of such request, all stock of the Company then held
by the Executive for its fair market value and all options to purchase stock of
the Company then held by the Executive for the excess of the fair market value
of the stock purchasable upon the exercise of such options over the exercise
price of such options, and (D) the Company shall provide the Executive and his
spouse with medical coverage equivalent to that received by Executive during his
employment hereunder and for the life of each of the Executive and his spouse.
After each becomes eligible for Medicare, such coverage shall supplement
Medicare coverage. The fair market value of stock of the Company shall be the
last quoted price for such stock, if it is then publicly traded, prior to the
date of the Executive's request, and if it is not then publicly traded, shall be
the value determined in good faith by the Board of Directors of the Company. If
the Executive disagrees with the determination of the Board of Directors, the
Executive and the Company shall agree on an investment banking firm to make such
determination. If they cannot agree on the selection of such firm, each of the
Company and the Executive shall choose an investment banking firm and if the two
such firms cannot agree, such two firms shall choose a third investment banking
firm which shall choose one of the values determined by the other two investment
banking firms. The Company shall pay all of the fees and expenses of all of the
investment banking firms which are engaged under this Section 4(e). If the
purchase of such stock and options would cause the Executive to be liable under
Section 16(b) of the Exchange Act, he shall be allowed to defer such purchase as
necessary to avoid such liability.
(f) In the event that any of the payments or benefits that are provided
for hereunder or under any other plan, agreement or arrangement between the
Executive and the Company, be determined to be subject to an excise or similar
purpose tax pursuant to Section 4999 of the Internal Revenue Code of 1986 as
amended, or any successor or other comparable federal, state or local tax laws,
the Company shall pay to the Executive such additional compensation as is
necessary (after taking into account all federal, state and local income taxes
payable by the Executive as a result of the receipt of such additional
compensation) to place the Executive in the same aftertax position (including
federal, state and local taxes) he would have been in had no such tax (or any
interest or penalties thereon) been paid or incurred.
(g) Except in the case of the Executive's termination of employment
under subparagraph (c) of this Section 4, the covenants of the Executive in
Sections 5, 6, 7 and 8 shall survive the termination, amendment or replacement
of this Agreement and the termination of the Executive's employment hereunder,
and shall not be extinguished by any of such events.
(h) For a period of two years after the death of the Executive or after
a disability that prevents the Executive from performing his Duties, the Company
shall continue the compensation
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provided for in this Agreement, and the MERP benefits described on Exhibit E,
except that the Executive shall not be entitled to any bonuses other than those
earned by the Executive, if any, through the date of such death or disability.
(i) If Executive's employment is terminated for any reason, the Company
shall assign any and all rights it may have to any life insurance policy in
which the Executive is the insured (including but not limited to Policy 1 949022
issued by Connecticut General Life Insurance Co.) to the Executive or such other
person or entity as the Executive shall direct in writing, without cost to
Executive, and if Executive terminates employment other than pursuant to
subsection (c) of this Section 4, less a retention by Company of the rights to
receive an amount equal to all premiums paid by Company on such policy.
(j) All provisions of this Section 4 shall survive the expiration or
termination of this Agreement.
5. Agreement Not to Compete.
The Executive agrees that (a) during the Executive's employment by the
Company and for a period of three (3) years following the termination, for any
reason, of this Agreement or of the Executive's employment with the Company,
whichever shall first occur, the Executive will not, without the prior written
consent of the Company, within the Area, either directly or indirectly, on the
Executive's own behalf or in the service or on behalf of others, engage in any
Competing Business as either (i) a manager, supervisor, administrator,
consultant, instructor, officer, director, executive employee or salesperson
providing services the same as or substantially similar to the Duties, or (ii)
as a shareholder or owner of interests (other than as a shareholder of less than
five percent (5%) of the issued and outstanding voting securities of an entity
whose voting securities are traded on a national securities exchange or are
reported on the automated quotation system of the National Association of
Securities Dealers, Inc.) in any Competing Business.
6. Agreement Not to Solicit Customers.
The Executive agrees that during the Executive's employment by the
Company and for a period of three (3) years following the termination, for any
reason, of this Agreement or of the Executive's employment with the Company,
whichever shall first occur, the Executive will not, without the prior written
consent of the Company, within the Area, either directly or indirectly, on the
Executive's own behalf or in the service or on behalf of others, solicit, divert
or appropriate, or attempt to solicit, divert or appropriate, to any Competing
Business any person or entity whose account with the Company or any of its
subsidiaries was sold, serviced or actively solicited by or under the
supervision of the Executive during the three (3) years preceding the
termination of such employment.
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7. Agreement Not to Solicit Employees.
The Executive agrees that during the Executive's employment by the
Company and for a period of three (3) years following the termination, for
whatever reason, of this Agreement or of the Executive's employment with the
Company, whichever shall first occur, the Executive will not, either directly or
indirectly, on the Executive's own behalf or in the service or on behalf of
others, solicit, divert or hire away or attempt to solicit, divert or hire away,
to any Competing Business (i) any person employed by the Company or any of its
subsidiaries, franchisees or licensees within the Area, whether or not such
employee is a full-time associate or a temporary employee of the Company,
subsidiaries, franchisees or licensees, and whether or not such employment is
pursuant to written agreement and whether or not such employment is for a
determined period or is at will or (ii) any person or entity that is a
franchisee or licensee of the Company within the Area, nor will the Executive at
any time during such period, either directly or indirectly, induce or attempt to
induce any such employee, franchisee or licensee to terminate, breach or
otherwise fail fully to perform any employment agreement or franchise or license
agreement with the Company or any of its subsidiaries.
8. Ownership and Non-Disclosure and Non-Use of Confidential Information.
(a) The Executive acknowledges and agrees that all Confidential
Information, and all physical embodiments thereof, is confidential to and shall
be and remain the sole and exclusive property of the Company. Upon request by
the Company, and in any event upon termination of the Executive's employment
with the Company for any reason, as a prior condition to receiving any final
wage or salary check, the Executive shall promptly deliver to the Company all
property belonging to the Company including, without limitation, all
Confidential Information (and all embodiments thereof) then in the Executive's
custody, control or possession, but any withholding of such wage or salary check
shall not be considered as satisfaction or a release of or liquidated damages
for any claims for damages against the Executive which may accrue to the Company
as a result of any breach of this Section 8(a) by the Executive.
(b) The Executive agrees that the Executive will not, either during the
term of the Executive's employment by the Company or for three (3) years
thereafter, without the prior written consent of the Company, disclose or make
available any Confidential Information to any person or entity or make or cause
to be made or permit or allow, either on the Executive's own behalf or on behalf
of others, any use of any Confidential Information other than in the proper
performance of the Executive's duties hereunder. The Company agrees that the
Executive is not prohibited hereby from disclosing or using any Confidential
Information which the Executive is required to disclose pursuant to a
requirement of a governmental agency or of law without similar restrictions or
other protections against public disclosure, provided, however, that the
Executive shall first have taken reasonable steps to allow the Company to seek
to protect the confidentiality of the information required to be disclosed.
9. Inventions.
(a) The Executive agrees that all Subject Inventions conceived or first
practiced by the Executive during his employment by the Company, and all patent
rights and copyrights to the
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Subject Inventions will become the property of the Company, and the Executive
hereby irrevocably assigns to the Company all of his rights to all Subject
Inventions.
(b) The Executive agrees that if he conceives an Invention during his
or her employment and there is a reasonable basis to believe that the Invention
is a Subject Invention, the Executive will promptly provide a written
description of the Invention to the Company adequate to allow evaluation for a
determination as to whether the Invention is a Subject Invention.
(c) If, upon commencement of the Executive's employment with the
Company, the Executive has previously conceived an Invention or acquired any
ownership interest in any Invention, which: (i) is the Executive's property, or
of which the Executive is a joint owner with another person or company; (ii) is
not described in any issued patent as of the commencement of the Executive's
employment with Company; and (iii) would be a Subject Invention if such
Invention was made while a Company employee; then the Executive must, at the
Executive's election, either: (i) provide the Company with a written description
of the Invention on Exhibit C, if any, in which case the written description
(but no rights to the Invention) shall become the property of the Company; or
(ii) provide the Company with the license described in Section 9(d) of this
Agreement.
(d) If the Executive has previously conceived or acquired any ownership
interest in an Invention described above in Section 9(c) and the Executive
elects not to disclose the same to the Company as provided above, then the
Executive hereby grants to the Company a nonexclusive, paid-up, royalty-free
license under all patents to issue in any country which pertain to the
Invention.
(e) The Executive owns no patents, individually or jointly with others.
10. Patent Applications.
(a) The Executive agrees that should the Company elect to file an
application for patent protection, either in the United States or in any foreign
country on a Subject Invention of which the Executive was an inventor, the
Executive will execute all necessary documentation relating to the patent
applications, including formal assignments to the Company.
(b) The Executive further agrees that he will cooperate with attorneys
or other persons designated by the Company by explaining the nature of any
Subject Invention for which the Company elects to file an application for patent
protection, reviewing applications and other papers and providing any other
cooperation required for prosecution of the patent applications. The Company
will be responsible for all expenses incurred for the preparation and
prosecution of all patent applications on Subject Inventions assigned to the
Company.
11. Copyrights.
(a) The Executive agrees that any Works created by the Executive in the
course of the Executive's Duties as an employee of the Company are subject to
the "Work for Hire" provisions contained in Sections 1 01 and 201 of the United
States Copyright Law, Title 1 7 of the United States
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Code. All right, title and interest to copyrights in all Works which have been
or will be prepared by the Executive within the scope of his employment with the
Company will be the property of the Company. The Executive acknowledges and
agrees that, to the extent the provisions of Title 1 7 of the United States Code
do not vest in the Company the copyrights to any Works, the Executive hereby
assigns to the Company all right, title and interest to copyrights which the
Executive may have in the Works.
(b) The Executive must disclose to the Company all Works referred to in
Section 1 1 (a) and will execute and deliver all applications, registrations and
documents relating to the copyrights to the Works and will provide assistance to
secure the Company's title to the copyrights in the Works. The Company will be
responsible for all expenses incurred in connection with the registration of all
the copyrights.
(e) The Executive claims no ownership rights in any Works, except those
described on Exhibit C, if any.
12. Contracts or Other Agreements with Former Employer or Business.
(a) The Executive agrees that he will provide to the Company, upon the
execution and delivery of this Agreement, a copy of the pertinent portions of
any employment agreement or similar document (described on Exhibit C, if any),
executed by the Executive with a former employer or any business with which the
Executive has been associated, which prohibits the Executive during a period of
time from: (i) competing with or participating in a business which competes with
the Executive's former employer or business; (ii) soliciting personnel of the
former employer or business to leave the former employer's employment or to
leave the business; or (iii) soliciting customers of the former employer or
business on behalf of another business.
(b) The Executive hereby represents to the Company that he has not
executed any agreement with any other party which purports to require the
Executive to assign any Work or any Invention created, conceived or first
practiced by the Executive during a period of time which includes the date of
his commencement of employment with the Company, except as described on Exhibit
C, if any. The Executive will obtain and provide to the Company a copy of any
such described agreement.
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13. Severability.
(a) The Executive agrees that the covenants and agreements contained in
Section 5, 6, 7 and 8 of this Agreement are of the essence of this Agreement;
that each of such covenants is reasonable and necessary to protect and preserve
the interests and properties of the Company and the Business of the Company;
that the Company is engaged in and throughout the Area in the Business of the
Company; that irreparable loss and damage will be suffered by the Company should
the Executive breach any of such covenants and agreements; that each of such
covenants and agreements is separate, distinct and severable not only from the
other of such covenants and agreements but also from the other and remaining
provisions of this Agreement; that the unenforceability of any such covenant or
agreement shall not affect the validity or enforceability of any other such
covenant or agreement or any other provision or provisions of this Agreement;
and that, in addition to other remedies available to it, the Company shall be
entitled to both temporary and permanent injunctions to prevent a breach or
contemplated breach by the Executive of any of such covenants or agreements.
(b) In the event that the Executive shall breach any of the covenants
set forth in Section 5, 6, 7 or 8 hereof, the running of the period of the
restriction set forth in such Section shall be tolled during the continuation of
any such breach by the Executive, and the running of the period of such
restrictions shall commence only upon compliance by the Executive with the terms
of the applicable Section.
14. Expenses of the Executive.
(a) All costs and expenses (including reasonable legal, accounting and
other advisory fees) incurred by the Executive to enforce his rights under this
Agreement, including but not limited to his rights to receive the compensation
payable pursuant to Sections 3 and 4 hereof, upon written demand by the
Executive to the Company shall be promptly advanced or reimbursed to the
Executive or paid directly, on a current basis, by the Company or its
successors.
(b) If at any time during the term of this Agreement or afterwards
there should arise any dispute as to the rights of the Executive under this
Agreement, the Company agrees, upon written demand by the Executive to the
Company (and the Executive shall be entitled, upon application to any court of
competent jurisdiction, to the entry of a mandatory injunction, without the
necessity of posting any bond with respect thereto, compelling the Company)
promptly to provide sums sufficient to pay on a current basis (either directly
or by reimbursing the Executive) the Executive's costs and reasonable attorneys'
fees (including, without limitation, expenses of investigation and disbursements
for the fees and expenses of experts) incurred by the Executive in connection
with any such dispute or any litigation, regardless of whether the Executive is
the prevailing party in such dispute or litigation; provided that, the court in
which such litigation is first initiated determines with respect to this
obligation, upon application of either party hereto, that the Executive did not
initiate such litigation frivolously. Under no circumstances shall the Executive
be obligated to pay or reimburse the Company for any attorneys' fees, costs or
expenses incurred by the Company. The provisions of this Section 14 shall
survive the expiration or termination of this Agreement.
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(c) Company shall pay Executive's reasonable attorneys fees incurred in
preparing and negotiating this Agreement.
15. No Set-off by the Executive or the Company.
The existence of any claim, demand, action or cause of action by the
Executive against the Company, or any subsidiary or Affiliate of the Company,
whether predicated upon this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of any of its rights hereunder, and
the existence of any claim, demand, action or cause of action by the Company (or
any subsidiary or affiliate of the Company) against the Executive or any
relative of the Executive, whether predicated upon this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Executive of any of his
rights hereunder.
16. Amendment.
This Agreement and the exhibits attached hereto may be altered,
amended, modified or superseded only by a writing executed by both of the
parties hereto.
17. Assignment; Entire Agreement.
(a) This Agreement may not be assigned by the Company, except that it
may be assigned by Company in connection with a Change of Control of Company
and, in such case, this Agreement shall inure to the benefit of any such
assignee. The waiver by either party to this Agreement of any breach of this
Agreement by the other party shall not be effective unless in writing, and no
such waiver shall constitute the waiver of the same or another breach on a
subsequent occasion.
(b) This Agreement, together with any agreements noted on Exhibit E to
this Agreement, embodies the entire agreement of the parties hereto relating to
the employment by the Company of the Executive in the capacity herein stated,
and all other prior written agreements between the parties are null and void.
IN WITNESS WHEREOF, the Company and the Executive have each caused this
Agreement to be executed and delivered as of the date first shown above.
THE COMPANY:
NORRELL CORPORATION
By: /s/ Mark Hain 12/15/97
--------------------------------
(Date)
Title: V.P.
-----------------------------
THE EXECUTIVE:
/s/ C. Douglas Miller 12/15/97
-----------------------------------
C. Douglas Miller (Date)
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15
EXHIBIT A
The Area shall be an area within a twenty-five (25) mile radius of each office
of Company which exists during the term of this Agreement.
THE COMPANY:
NORRELL CORPORATION
By: Mark Hain 12/15/97
--------------------------------
(Date)
Title: V.P.
-----------------------------
THE EXECUTIVE:
C. Douglas Miller 12/15/97
-----------------------------------
C. Douglas Miller (Date)
14
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EXHIBIT B
The Duties of the Chairman of the Board and Chief Executive Officer of the
Company shall be as follows:
To be responsible for the development of the strategic plan for the Company and
all changes to the plan, consistent with the direction of the Board of
Directors;
To supervise and control all the business and affairs of the Company, including
development of the basic long and short term objectives, policies, and operating
plans of the Company, all to be consistent with the strategic direction of the
Company or as directed by the Board of Directors of the Company;
To ensure that adequate plans for future development and growth of the Company
are prepared, and to participate in and direct such preparations;
To present such plans for review and approval by the Board of Directors of the
Company;
To be responsible for meeting the Company plans, objectives, and goals;
To present proposed operating and capital budgets for review and approval by the
Board of Directors of the Company;
To plan for the development of personnel resources within the Company;
To direct and supervise the performance of the key executives of the Company;
To represent the Company as appropriate in its relationships with major
customers, suppliers, competitors, employees, stockholders, government agencies,
professional societies and the public;
To cause all books, reports, statements, and certificates of the Company to be
properly kept and filed as required by law;
To sign and execute contracts in the name of the Company, or to delegate such
duties to other authorized officers or employees of the Company; and
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To perform such other reasonable executive duties and responsibilities as the
Board of Directors of the Company may require from time to time.
THE COMPANY:
NORRELL CORPORATION
By: Mark Hain 12/15/97
--------------------------------
(Date)
Title: V.P.
-----------------------------
THE EXECUTIVE:
C. Douglas Miller 12/15/97
-----------------------------------
C. Douglas Miller (Date)
16
18
EXHIBIT C
None.
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EXHIBIT D
The Executive shall earn a bonus equal to the percentage of annual salary
("Bonus Percentage") corresponding to the Company's achievement of its Pre-tax
Profit Plan (as presented to the Board of Directors) multiplied by the
Executive's annual salary as follows:
% of Company's Pre-tax Profit Plan Achieved Bonus Percentage
- ------------------------------------------- ----------------
80% 50%
90% 60%
100% 70%
105% 80%
110% 90%
115% 100%
An equitable adjustment to the Pre-tax Profit Plan shall be made to account for
acquisitions and divestitures; extraordinary items shall be excluded from all
calculations.
THE COMPANY:
NORRELL CORPORATION
By: /s/ MARK HAIN 12/15/97
------------------------------
(Date)
Title: /s/ V.P.
----------------------------
THE EXECUTIVE:
/s/ C. DOUGLAS MILLER 12/15/97
----------------------------------
C. Douglas Miller (Date)
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EXHIBIT E
1. Medical Executive Reimbursement Plan (MERP)
2. Executive Perquisite Plan (PERK)
3. Group Life, Medical, Dental, Vision and Disability Plans in accordance with
elections made by Executive
4. Deferred Compensation Plan
5. Supplemental Executive Retirement Plan (Vision)
6. Country Club dues reimbursement
7. Supplemental Disability Policies #PRL-D1 010215767003
PRL-D1 010239546103
PRL-D1 010254546903
8. Split dollar Life Insurance Policy # 1949022
9. Automobile allowance
THE COMPANY:
NORRELL CORPORATION
By: /s/ Mark Hain 12/15/97
--------------------------------
(Date)
Title: /s/ V.P.
-----------------------------
THE EXECUTIVE:
/s/ C. Douglas Miller 12/15/97
-----------------------------------
C. Douglas Miller (Date)
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