EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made effective as of
the 1st day of January, 2003, by and between MPS GROUP, INC., a Florida
corporation, and its successors ("Employer"), and _____________________ a
resident of the State of Florida ("Executive").
WHEREAS, the Employer and Executive wish to enter into an employment
agreement, which agreement shall replace and thereby supersede all prior
employment agreements and any amendments thereto previously executed between the
Employer and Executive;
NOW, THEREFORE, in consideration of the mutual promises, agreements and
covenants, and subject to the terms and conditions contained in this Agreement,
the Employer and Executive, intending to be legally bound, hereby agree as
follows:
1. Employment. Employer hereby employs Executive as a Vice President or
Senior Vice President and in such other capacity with subsidiaries or business
units of Employer as Employer may direct, and Executive hereby accepts
employment by Employer, in accordance with and subject to the terms and
conditions of this Agreement.
2. Duties and Authority. Executive shall be responsible for directing and
managing areas of responsibility as assigned by the Employer from time to time.
Executive agrees to devote full time, attention and best efforts to the
performance of these duties; provided, however, it shall not be considered a
violation of the foregoing for Executive to assist in the affairs of corporate
affiliates of Employer or to serve on corporate, industry, civic or charitable
boards or committees, so long as such activities do not materially interfere
with the performance of the Executive's responsibilities as an employee of the
Employer in accordance with this Agreement.
3. Compensation. During the Term of this Agreement, Executive shall receive
the following compensation:
A. Base Salary. A base salary shall be established by the Employer and
payable in accordance with the Employer's standard practice for other
comparable executives. Executive's base salary shall be subject to periodic
review and adjustment by the Employer in accordance with the Employer's
compensation policies.
B. Incentive Compensation. A target incentive compensation opportunity
shall be established periodically by the Employer under the Employer's
Senior Executive Annual Incentive Plan (or successor plan) ("Incentive
Compensation.").
4. Stock Options. Employer shall continue to grant stock options from time
to time in a manner consistent with that to which it grants such stock options
generally to other senior executive officers of the Employer to purchase shares
of the common stock of the Employer pursuant to the MPS Group, Inc. Amended and
Restated 1995 Stock Option Plan, as amended from time to time, or pursuant to a
newly established or successor plan.
A. Exercise. Any existing stock options held by Executive on the
effective date or granted Executive after the effective date of this
Agreement shall provide for:
(i) exercisability of vested options (including those vested
under paragraph 4.A.(ii) below) for two (2) years following the
Executive's termination of employment with the Employer (or if sooner,
10 years from date of grant of the option); and
(ii) full vesting of options upon a Change in Control (as
hereafter defined).
B. Change in Control. For purposes of this Agreement, "Change in
Control" shall mean any of the following events:
(i) the acquisition by any person or persons (as such term is
used in Section 13(d) of the Securities Exchange Act of 1934) of legal
or beneficial ownership of 35% or more of either (a) the then
outstanding shares of common stock of the Employer or (b) the combined
voting power of the then outstanding voting securities of the Employer
entitled to vote generally in the election of directors;
(ii) individuals who, as of the date hereof, constitute the Board
of Directors of Employer ("Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Employer's shareholders,
was approved by a vote of at least a majority of the directors then
comprising the Board shall be considered as though such individual
were a member of the Board as of the date hereof;
(iii) approval by the shareholders of the Employer of a
reorganization, merger, or consolidation, in each case unless the
shareholders of the Employer immediately before such reorganization,
merger, or consolidation own, directly or indirectly, immediately
following such reorganization, merger, or consolidation at least a
majority of the combined voting power of the outstanding voting
securities of the corporation resulting from such reorganization,
merger, or consolidation in substantially the same proportion as their
ownership of the voting securities immediately before such
reorganization, merger or consolidation; or
(iv) approval by the shareholders of the Employer of (a) a
complete liquidation or dissolution of the Employer, or (b) the sale
or other disposition of more than 50% of the assets of the Employer
within a twelve month period.
5. Benefits. To the extent not otherwise provided herein (it being the
intent not to duplicate benefits) during the term of this Agreement, Employer
shall provide the Executive with all vacation, retirement, welfare, deferred
compensation, disability and other benefits provided in the Employer's
discretion generally to the Employer's other senior executive officers. The
Employer shall reimburse the Executive for all reasonable and necessary expenses
incurred while conducting business in accordance with policies adopted by the
Employer from time to time. Furthermore, the Employer may pay the Executive or a
leasing company, at the Executive's option, an auto allowance as may be
established in the discretion of the Employer for an automobile used by the
Executive for business purposes. The Executive acknowledges that pursuant to
federal, state or local law, and regulations promulgated thereunder, the
Employer may be required to report for tax purposes all or a portion of certain
of the benefits and reimbursements provided in this Agreement as income in
respect of the Executive.
6. Restrictive Covenants; Confidentiality. In consideration of the
employment of Executive by Employer, Executive agrees as follows:
A. Non-Solicitation; Non-Compete. During Executive's employment with
Employer and for a period of two (2) years thereafter, whatever the reason
for Employee's termination or separation of employment from Employer, and
unless Executive receives Employer's advance written waiver, Executive
shall not, either directly or indirectly, either on his or her own behalf
or on behalf of another business, engage in or assist others in the
following activities:
(i) Soliciting, hiring, recruiting, or attempting to recruit, for
any business competing with Employer or its affiliates, any person
employed or contracted with by Employer during the twelve (12) months
immediately prior to Executive's termination or separation of
employment from Employer;
(ii) Soliciting or accepting, for any business which competes
with Employer, any business from any Employer Client(s), for which
services were provided or actively solicited by Employer during the
twelve (12) months immediately prior to Executive's termination or
separation of employment from Employer, and which services or
solicitation were or was conducted by or through Employer office(s)
over which Executive had either direct or indirect managerial
authority. For purposes of this provision, "Employer Client(s)" are
defined as those persons, businesses, governmental agencies and
nonprofit organizations either currently doing business with Employer
at the time of the separation or termination of Executive's employment
from Employer or to which Employer provided or actively solicited
services during the twelve (12) months immediately prior to the
separation or termination of Executive's employment from Employer;
(iii) Entering into, engaging in, being employed by, being
connected to, consulting or rendering services for, any business which
competes with, or is similar to, Employer's business, or business
known to Executive as planned to be conducted by Employer at the time
of Executive's termination or separation from employment with
Employer. The non-compete restriction in this subsection shall apply
throughout the United States; provided, however, if Employee is
assigned a particular smaller geographic territory capable of
measurement, and Employee works in that territory for at least 180
consecutive days prior to Employee's termination or separation of
employment from Employer, then the geographic restriction in this
subsection shall apply to the lesser of the United States or the last
precise territory in which Employee worked for at least 180
consecutive days. This Subsection 6.A.(iii) shall not restrict
Executive from beneficial ownership representing an interest of less
than five (5%) percent of the outstanding shares or other securities
of a company traded on a recognized national or international stock
exchange.
B. Non-Disclosure of Information. Executive will not at any time,
during or after the term of this Agreement in any fashion, form, or manner,
either directly or indirectly, divulge, disclose, or communicate to any
person, firm, or corporation, in any manner whatsoever, any information of
any kind, nature, or description concerning any matters affecting or
relating to the business of the Employer, including, but not limited to,
the names of any of its customers or prospective customers or any other
information concerning the business of the Employer, its manner of
operation, its plans, its vendors, its suppliers, its advertising, its
marketing, its methods, its practices, or any other information of any
kind, nature, or description, without regard to whether any or all of the
foregoing matters would otherwise be deemed confidential, material, or
important; provided, however that this provision shall not prevent
disclosures by Executive to the extent such disclosures are (i) believed by
the Executive, in good faith and acting reasonably, to be in the best
interest of the Employer, (ii) of information that is public at the time of
the disclosure (other than as a result of the Executive's violation of this
Subsection 6.B., or (iii) as required by law or legal process (and, if the
Executive is so required to disclose, Executive shall provide the Employer
notice of such to allow the Company the opportunity to contest such
disclosure).
7. Term; Termination of Employment.
A. Term. The term of employment hereunder shall begin on January 1,
2003 and continue for a period of indefinite duration, through and until
this Agreement is terminated by either party in accordance with Section
7.B. of the Agreement (the "Term").
B. Termination. Either party may terminate this Agreement for any or
no reason in such party's sole discretion upon providing to the other party
at least ten (10) business days advance written notice of termination. The
Executive's employment hereunder shall terminate automatically upon the
Executive's death. Additionally, if the Employer determines in good faith
that the Executive has incurred a Disability, it may give the Executive
written notice of its intention to terminate the Executive's employment
hereunder. In such event, the Executive's employment with the Employer
hereunder shall terminate effective on the later of (i) the date in the
notice, (ii) the day after receipt of such notice by the Executive, or
(iii) the date the Disability has been considered to occur; provided that,
prior to such date, the Executive shall not have returned to full-time
performance of the Executive's duties. (For purposes of this Agreement,
"Disability" shall have the meaning set forth in the Employee's long term
disability plan or policy covering the Executive and shall not be
considered to have occurred until after the waiting period as required by
such plan or policy).
C. Rights Upon Termination. Upon termination of the Executive's
employment for any reason during the Term of this Agreement, Executive
shall be entitled to base salary and all benefits through the date of
termination and to exercise stock options in accordance with Section
4.A.(i) hereof. Executive shall not be entitled to any bonus compensation
upon termination for any incomplete periods or for future periods (except
as otherwise expressly stated below in Section 7.D. hereof).
D. Separation Pay. If Executive's employment hereunder is terminated
during the Term, other than by the Executive for any reason, or other than
by reason of the death or Disability of the Executive, or other than by
reason of the Executive and the Employer entering into another continuing
employment agreement, then Executive shall become entitled to receive
separation pay equal to twelve (12) months of Executive's latest base
salary plus an amount equal to the Executive's target bonus opportunity
under the Senior Executive Annual Incentive Compensation Plan for the year
of termination, but only if Executive is meeting or exceeding agreed upon
performance objectives for the year of termination and Executive's
termination was not caused or contributed to by, to the good faith belief
of Employer, Executive having engaged in fraud, criminal conduct,
insubordination, abuse of alcohol or illegal use of a controlled substance,
or Executive having actively sought other employment, acted in a fashion to
place Employer in disrepute, improperly fraternized with employees,
partners or clients, or materially breached any term of this Agreement or
any other agreement with Employer or its parent or affiliated companies
(such entitlement herein the "Separation Pay"). This Separation Pay may be
payable in semi-monthly installments in Employer's sole discretion and
shall be due only upon execution and delivery of a release of all claims
against Employer, its parent company(ies), affiliates, officers and
employees, in a form satisfactory to Employer.
8. Mitigation of Damages. Executive shall not be required to mitigate
damages or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise. The amounts provided for under this
Agreement shall not be reduced by any compensation earned or benefits received
by the Executive as the result of self-employment or employment by another
employer or otherwise.
9. Tax Effect. If Independent Tax Counsel shall determine that the
aggregate payments made, and benefits provided, to the Executive pursuant to
this Agreement and any other payments, and benefits provided, to the Executive
from the Employer, its affiliates and plans, which constitute "parachute
payments" as defined in Section 280G of the Code (or any successor provision
thereto) ("Parachute Payments") would be subject to the excise tax imposed by
Section 4999 of the Code (the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
(determined by Independent Tax Counsel) such that after payment by the Executive
of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment and
any interest or penalties imposed with respect to such taxes, the Executive
retains from the Gross-Up Payment an amount equal to the Excise Tax imposed upon
the payments. For purposes of this Paragraph, "Independent Tax Counsel" shall
mean a lawyer, a certified public accountant with a nationally recognized
accounting firm, or a compensation consultant with a nationally recognized
actuarial and benefits consulting firm with expertise in the area of executive
compensation tax law, who shall be selected by the Employer and shall be
reasonably acceptable to the Executive, and whose fees and disbursements shall
be paid by the Employer.
A. If Independent Tax Counsel shall determine that no Excise Tax is
payable by the Executive, it shall furnish the Executive with a written
opinion that the Executive has substantial authority not to report any
Excise Tax on the Executive's Federal income tax return. If the Executive
is subsequently required to make a payment of any Excise Tax, then the
Independent Tax Counsel shall determine the amount of such additional
payment ("Gross-Up Underpayment"), and any such Gross-Up Underpayment shall
be promptly paid by the Employer to or for the benefit of the Executive.
The fees and disbursements of the Independent Tax Counsel shall be paid by
the Employer.
B. The Executive shall notify the Employer in writing within 15 days
of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Employer of a Gross-Up Payment. If the Employer
notifies the Executive in writing that it desires to contest such claim and
that it will bear the costs and provide the indemnification as required by
this sentence, the Executive shall:
(i) give the Employer any information reasonably requested by the
Employer relating to such claim;
(ii) take such action in connection with contesting such claim as
the Employer shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Employer;
(iii) cooperate with the Employer in good faith in order to
effectively contest such claim; and
(iv) permit the Employer to participate in any proceedings
relating to such claim; provided, however, that the Employer shall
bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest and
shall indemnify and hold the Executive harmless, on an after-tax
basis, for any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such
representation and payment of costs and expenses. The Employer shall
control all proceedings taken in connection with such contest;
provided, however, that if the Employer directs the Executive to pay
such claim and ▇▇▇ for a refund, the Employer shall advance the amount
of such payment to the Executive, on an interest-free basis, and shall
indemnify and hold the Executive harmless, on an after-tax basis, from
any Excise Tax or income tax, including interest or penalties with
respect thereto, imposed with respect to such advance or with respect
to any imputed income with respect to such advance.
C. If, after the receipt by the Executive of an amount advanced by the
Employer pursuant to this Section 9, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall, within
10 days, pay to the Employer the amount of such refund, together with any
interest paid or credited thereon after taxes applicable thereto.
10. Mandatory Deductions. Any amounts to which Executive is entitled as
compensation, bonus, merit bonus, or any other form of compensation subject to
withholding, shall be subject to usual deduction for appropriate federal, state,
and local income and employment tax obligations of Executive.
11. Notices. Any notice provided for in this Agreement shall be given in
writing. Notices shall be effective from the date of receipt, if delivered
personally to the party to whom notice is to be given, or on the second day
after mailing, if mailed by first class mail, postage prepaid. Notices shall be
properly addressed to the parties at their respective addresses set forth below
or to such other address as either party may later specify by notice to the
other:
If to Employer:
MPS Group, Inc.
Attn: Chief Legal Officer
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Executive:
___[insert name]______________________
at the then current address of the Executive
appearing in the corporate records of Employer
12. Entire Agreement. This Agreement contains the entire agreement and
supersedes all prior agreements and understandings, oral or written, with
respect to the subject matter hereof, including, but not limited to, any and all
prior employment agreements and related amendments entered into between the
Employer and the Executive. This Agreement may be changed only by an agreement
in writing signed by the party against whom any waiver, change, amendment or
modification is sought.
13. Waiver. The waiver by one party of a breach of any of the provisions of
this Agreement by the other shall not be construed as a waiver of any subsequent
breach.
14. Attorney's Fees. In the event of litigation or other dispute resolution
proceeding involving the interpretation or enforcement of this Agreement, the
prevailing party shall be entitled to recover from the other all fees, costs and
expenses incurred in connection therewith, including attorney's fees through
appeal.
15. Tax Withholding. The Employer shall have the right to deduct from all
benefits and/or payments under the Agreement any taxes required by law to be
paid or withheld with respect to such benefits or payments.
16. Governing Law; Venue. The Agreement shall be construed and enforced in
accordance with the laws of the State of Florida. ▇▇▇▇▇ County, Florida, shall
be proper venue for any litigation arising out of this Agreement.
17. Paragraph Headings. Paragraph headings are for convenience only and are
not intended to expand or restrict the scope or substance of the provisions of
this Agreement.
18. Assignability. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Employer. This Agreement is a personal employment agreement
and the rights, obligations and interests of the Executive hereunder may not be
sold, assigned, transferred, pledged or hypothecated.
19. Arbitration. The parties agree that any dispute between them arising
from the rights or duties under this Agreement or Executive's employment,
including, without limitation, any termination thereof, shall be resolved
exclusively by binding arbitration before a single arbitrator according the to
the appropriate rules of the American Arbitration Association. The parties agree
that any such arbitration shall be conducted exclusively within Jacksonville,
▇▇▇▇▇ County, Florida. The parties agree that the decision of the arbitrator
shall be final, binding and shall be enforceable in any court of competent
jurisdiction. The sole exception to the foregoing is that the Employer may seek
equitable or injunctive relief in a court of competent jurisdiction to redress
irreparable harm resulting from what Employer believes in its sole discretion is
a breach or threatened breach of any part of Section 6 of this Agreement.
20. Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of the
Agreement shall remain in full force and shall in no way be impaired.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to account for more than one such
counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of January 1, 2003.
EXECUTIVE
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[Name]
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Witnesses
EMPLOYER
___________________________ By:___________________________
Its
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Witnesses