Exhibit 10.26
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS AMENDED AND
RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is
made effective as of the 30 th Day of December, 2008, by and
between MPS GROUP, INC., a Florida corporation, and its
successors (“Employer”), and RICHARD L. WHITE ,
a resident of the State of Florida (“Executive”) and
amends and restates in its entirety that certain employment
agreement between the parties dated January 1,
2003.
WHEREAS, the Employer and the
Executive entered into an employment agreement dated
January 1, 2003; and.
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 President of its affiliate, Beeline.com
Inc., and the affiliates, subsidiaries, and divisions thereof
(hereinafter collectively referred to as “Beeline”),
and in such other capacity with affiliates 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,
including, without limitation, directing and managing the affairs
of one or more of the Employer’s affiliates or business
units. 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 Executive
Annual Incentive Plan (“Incentive Compensation.”), as
amended from time to time, or pursuant to another or successor
plan.
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:
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(i)
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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
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(ii)
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full vesting of
options upon a Change in Control (as hereafter defined).
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B. Change in Control . For
purposes of this Agreement, “Change in Control” shall
mean any of the following events:
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(i)
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the acquisition
by any person or persons (as such term is used in
Section 13(d) of the Securities Exchange Act of 1934, as
amended) 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;
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(ii)
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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;
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(iii)
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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
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(iv)
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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.
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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. In all
events, the aforementioned benefit and expense reimbursements will
be made no later than the year following the year in which the
expense was incurred. Notwithstanding any other provision of this
Section 5 to the contrary, any expense reimbursed by the
Employer in one taxable year in no event will affect the amount of
expenses required to be reimbursed or in-kind benefits required to
be provided by the Employer in any other taxable year.
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6. Restrictive Covenants;
Confidentiality . In consideration of the employment of
Executive by Employer, and the opportunity for enhanced
professional and remunerative opportunities by virtue of the terms
hereof, 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 Executive’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:
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(i)
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Soliciting,
hiring, recruiting, or attempting to recruit, for any business
competing with Employer or its affiliates, any person employed or
contracted with by Employer or its affiliates at any time during
the twelve (12) months immediately prior to Executive’s
termination or separation of employment from Employer, and with
whom Executive had contact during his employment with
Employer;
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(ii)
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Soliciting or
accepting, for any business which competes with Beeline, any
business from any Beeline Client(s), for which services were
provided or actively solicited by Beeline during the twelve
(12) months immediately prior to Executive’s termination
or separation of employment from Employer. For purposes of this
provision, “Beeline Client(s)” are defined as those
persons, businesses, governmental agencies and nonprofit
organizations either currently doing business with Beeline at the
time of the separation or termination of Executive’s
employment from Employer or to which Beeline provided or actively
solicited services during the twelve (12) months immediately
prior to the separation or termination of Executive’s
employment from Employer;
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(iii)
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Entering into,
engaging in, being employed by, being connected to, consulting or
rendering services for, any business which competes with, or is
similar to, Beeline’s business, or business known to
Executive as planned to be conducted by Beeline 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.
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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
vendor
