Exhibit 10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE EMPLOYMENT
AGREEMENT (the
“Agreement”) is made effective as of the 17th day of
April, 2009, by and between MPS GROUP, INC. , a Florida
corporation, and its successors (“Employer”), and
JON D. KERNER , a resident of the State of Florida
(“Executive”).
WHEREAS , the Employer and the Executive entered into a
Letter of Understanding on December 7, 2007; and
WHEREAS , the Employer and the Executive desire to enter
into an employment agreement, which agreement shall replace and
thereby supersede all prior employment agreements and similar
understandings previously executed or agreed between the Employer
and the 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 Senior Vice President and Chief Information
Officer, and Executive hereby accepts employment by Employer, in
accordance with and subject to the terms and conditions of this
Agreement. The Executive will report directly to one or both of the
principal executive or principal financial officers of the
Employer.
2. Duties and Authority . As Senior
Vice President and Chief Information Officer of Employer, Executive
shall be responsible for administering the affairs of the Employer
to the extent, and otherwise performing such duties as are,
customarily performed by a Senior Vice President and Chief
Information Officer of a company of similar size and structure to
the Employer. Executive agrees to devote his full time, attention
and best efforts to the performance of his duties hereunder;
provided, however, it shall not be considered a violation of the
foregoing for the Executive to assist in the financial affairs of
corporate affiliates 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
responsibility as an employee of the Employer in accordance with
this Agreement.
3. Initial Term; Employment Period .
The initial term of employment shall begin on April 17, 2009
and end on December 31, 2009 (the “Term of this
Agreement”). The Term of this Agreement shall be extended
automatically for one year on December 31, 2009, and each
annual anniversary thereof (the “Extension Date”)
unless, and until, at least 90 days prior to the applicable
Extension Date either the Employer or the Executive provides
written notice to the other party that this Agreement is not to be
extended (the later of December 31, 2009 or the last date to
which the Term is extended shall be the “End of Term”).
For purposes of this Agreement, the period beginning on
January 1, 2008, and ending on the Date of Termination (as
hereafter defined) shall be referred to herein as the
“Employment Period.”
4. Compensation . During the
Employment Period which is in the Term of this Agreement, Executive
shall receive the following compensation:
A. Base Salary . A base
annual salary of $250,000, payable in accordance with the
Employer’s standard practice for other comparable executives.
Executive’s base salary shall be subject to annual review by
the Board of Directors of the Employer (the “Board”)
for discretionary periodic increases in accordance with the
Employer’s compensation policies. References to “Base
Salary” in this Agreement shall be to the base salary set
forth in this Paragraph 4.A. and shall include any increases to
such base salary made hereby.
B. Incentive Compensation .
The Executive shall be entitled to a target incentive compensation
opportunity expressed as a percentage of Base Salary of not less
than 50% under the Executive Annual Incentive Plan
(“Incentive Plan”), as amended from time to time, or
pursuant to a newly established or successor plan.
C. Management Savings Plan .
The Executive shall be entitled each year to an annual contribution
of at least the minimum annual award level under the Management
Savings Plan, as amended from time to time, or pursuant to a newly
established or successor plan.
5. Equity Compensation . Employer
shall continue to grant to Executive stock options, restricted
stock, stock appreciation rights or other equity compensation
awards from time to time in a manner consistent with that to which
it makes such grants to other senior executive officers of the
Employer pursuant to the MPS Group, Inc. 2004 Equity Incentive
Plan, as amended from time to time, or pursuant to a newly
established or successor plan.
A. Vesting and Exercise . Any
existing or future equity compensation awards shall provide
for:
(i) with respect to stock options,
exercisability of vested stock options (including those vested
under Paragraph 5.A.(ii) below) for at least two years following
the Executive’s termination of employment with the Employer
(or if sooner, 10 years from date of grant of the
option);
(ii) with respect to all stock
options, restricted stock or other equity compensation awards, full
vesting upon a Change in Control (as hereafter defined) or
termination of the Executive’s employment with the Employer
by reason of Executive’s death or Disability (as hereafter
defined) or for reasons other than termination (i) by the
Employer for Cause (as hereafter defined), or (ii) by the
Executive without Good Reason (as hereafter defined);
and
(iii) with respect to all stock
options, restricted stock or other equity compensation awards,
exercisability only to the extent vested on the date of the
Executive’s termination of employment with the Employer, in
the event of termination (i) by the Employer for Cause, or
(ii) by the Executive without Good Reason.
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B. For purposes of this Agreement,
“Change in Control” shall mean:
(i) 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;
(ii) individuals who, as of the date
hereof, constitute the 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.
6. 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 retirement, welfare, deferred compensation,
disability and other benefits generally provided to all of the
Employer’s other senior executive officers. Executive shall
be entitled to three (3) weeks of paid vacation per calendar
year. Unused vacation shall be paid out at calendar year end. 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. The
Executive acknowledges that pursuant to the Internal Revenue Code
of 1986, as amended (the “Code”), and the 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 6 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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7. Non-Compete; Confidentiality . In
consideration of the employment of Executive by Employer, Executive
agrees as follows:
A. Non-Compete and
Non-Solicitation . During the Employment Period and for a
period of two years after the Date of Termination, Executive will
not, directly or indirectly, within a fifty mile radius of any
office of Employer (or a consolidated subsidiary) in existence on
the Date of Termination, own, manage, be employed by, work for,
consult for, be an officer or director of, advise, represent,
engage in or carry on any business which competes with the business
of Employer. During the Employment Period and for a period of two
(2) years after the Date of Termination, Executive will not,
directly or indirectly, solicit or induce, or attempt to solicit or
induce, any employee of the Employer (or a consolidated subsidiary)
to leave the Employer (or a consolidated subsidiary) for any reason
whatsoever, or solicit the services of any employee of the Employer
(or a consolidated subsidiary).
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 Paragraph 7.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).
8. Termination of Employment
.
A. Death or Disability . The
Executive’s employment shall terminate automatically upon the
Executive’s death during the Employment Period. 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, and in
such event, the Executive’s employment with the Employer
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 (the “Disability Effective Date”),
provided that, prior to such
