Attached files
Exhibit 10.2
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INTERIM EMPLOYMENT AGREEMENT
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This Agreement made as of October 8, 2010, (the "Effective Date") by and between
Gregory Clements (the "Employee"), and PureSpectrum, Inc., a Delaware
Corporation, (the "Company") located at the address set forth below.
WITNESSETH:
WHEREAS, Company wishes to employ Employee and Employee wishes to be employed by
Company, all on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants of the parties
hereafter set forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ENGAGEMENT: Subject to the provisions of this Agreement the Company
agrees to engage the Employee to perform and Employee agrees to perform
services, upon the terms and conditions herein specified.
2. TERM: The term of this Agreement (the "Term") shall commence on the
Effective Date, and shall continue until a Permanent Employment Agreement is
executed. The Term of employment is subject to termination, extension, and
automatic termination as set forth hereunder.
3. DUTIES AND RESPONSIBILITIES
a) Duties. Employee agrees to perform all of the functions and duties
generally associated with management of a publicly traded company, upon the
terms and conditions herein specified, to the best of Employee's ability.
b) Location of Services. Employee further agrees to attend all
reasonably necessary meetings at such places that may be deemed reasonably
necessary for the performance of Employee's duties, hereunder.
c) Outside Interests. Nothing in this Agreement shall be deemed to
prohibit Employee from managing his personal, financial and legal affairs and
from making passive investments of funds in companies or enterprises. Employee
may however invest his funds in securities of any company if the securities of
such company are listed for trading on a national stock exchange or traded in
the over-the-counter market and Employee's holdings therein represent less than
Three Percent (3%) of the total number of outstanding shares of such company.
4. COMPENSATION: As full and complete consideration for Employee's Services
and Employee's undertakings hereunder, and for all rights granted to Company
hereunder, and subject to Employee's full compliance with the terms and
conditions of this Agreement, Company agrees to pay Employee as follows:
a) Fixed Compensation. The Employee's fixed compensation shall be based
on a yearly salary of Ninety-Six Thousand Dollars ($96,000.00) payable twice
monthly. Employee shall also be paid Fifteen Million (15,000,000) shares of the
Company's Common Stock. The shares of Common Stock shall be payable at the
completion of the first year of service unless otherwise agreed to in a
Permanent Employment Agreement. Company and Employee hereby mutually agree that
if Employee does not achieve the Performance Goals (as set forth below) by
October 8, 2011, Common Stock compensation will not be deemed earned and
payable.
(i) The Year One (1) Performance Goals are:
(a) The Company has established annual sales of at least Three
Hundred Sixty Thousand Dollars ($360,000.00) or can
demonstrate that monthly sales of at least Thirty Thousand
Dollars ($30,000.00) is achievable;
(b) the Company has held an annual shareholder meeting;
(c) the Company has devised a new capital plan and has obtained
shareholder approval; and
(d) the Company has maintained disclosure of Current Public
Information as that term is defined in Rule 144(c) of the
Securities Act of 1933.
c) Benefits: During the term, Employee shall be entitled to receive all
benefits of employment, if any, as established and when and as he becomes
eligible. The Company reserves the right to modify, suspend, or discontinue any
and all benefits offered by the Company at any time without notice to or
recourse by Employee, so long as such action is taken generally with respect to
other similarly situated persons and does not single out Employee.
d) The Fixed Compensation, if any, shall be subject to standard
withholding taxes as mandated by federal, state and local authorities.
e) Key Man Life Insurance Policy: The Company is responsible for
payment of Employee's Key Man Life Insurance Policy and Directors and Management
Insurance for the term of this Agreement. In addition, due to the nature of
Employee's duties to the Company and the inherent risk therein, the Company will
provide disability and life insurance for Employee commensurate with Four (4)
times his total compensation from the Company.
5. TERMINATION NOTICE TO EMPLOYEE:
a) Notwithstanding any provision of this Agreement to the contrary, the
employment hereunder shall terminate on the first to occur of the following:
(i) the date of the Employee's death;
(ii) the date on which Company or the Secured Creditors give the
Employee notice of termination for Cause (as defined below) (subject to any
applicable cure period);
(iii) Thirty (30) days after the Employee delivers written notice
of his resignation to Company; or
(iv) the execution of a permanent employment agreement;
(v) any mutually agreed upon time.
b) Company shall have the right, in its sole discretion, to terminate
the Employee for Cause. For purposes of this Agreement, "Cause" shall mean the
occurrence of any of the following, as reasonably determined by the Board of
Directors:
(i) the willful failure or refusal or the continued failure, in the
reasonable judgment of the Secured Creditors, by the Employee to perform
and discharge his material duties and responsibilities under this
Agreement, or any breach by the Employee. If such failure, refusal or
breach is not cured within Thirty (30) days of written notice to Employee,
which notice specifically identifies the conduct complained of, Company may
terminate employment for Cause; or
(ii) the willful engaging by the Employee in conduct which in the
opinion of the Secured Creditors is demonstrably damaging to the Company;
or which violates any federal or state securities laws or regulations or
causes any censure of Company; or
(iii) the conviction of the Employee (or the entering by the Employee
a pleas of guilty or nolo contendere) for (i) any felony, (ii) any
misdemeanor involving moral turpitude, or (iii) any crime involving
Company, its property, any of Company's subsidiaries or affiliates, or any
of their respective property.
c) In the event the Employment is terminated because of death pursuant
to Paragraph 5(a)(i) hereof, the Employee or his estate, legal representative or
designated beneficiary, as the case may be, shall be entitled to payment of any
earned but unpaid compensation, upon the date of death, without annualization
and through the date of termination (collectively, the "Accrued Salary") paid in
one lump sum within Sixty (60) days from the date of death.
d) Upon the termination of the Agreement, Employee shall immediately:
(i) return all property of the Company to the Board of Directors, or
their designate, including but not limited to manuals, client lists,
employee files and all Confidential Information described in Paragraph
9(b);
(ii) vacate the property of the Company;
(iii) cease and desist all contact with clients, vendors and employees
of the Company; and
(iv) assist the transition of the successor as reasonably requested
by the General Manager for a period of not less than Thirty (30) days.
e) Company shall have the right, in its sole discretion, to terminate
the Employee who becomes disabled. Subject to the provisions of the Operating
Agreement, upon the permanent disability of Employee (the "Disabled Employee")
as defined below, and upon written notice of such permanent disability, (the
"Event") Company and the Disabled Employee hereby agree as follows:
(i) "Disability" in this Agreement shall mean the inability of a
person to perform his normal employment responsibilities for six (6) consecutive
months or twelve (12) months out of any eighteen (18) month period. The Employee
agrees to submit to such medical examinations as may be necessary to determine
whether a Disability exists, pursuant to reasonable requests which may be made
by Company from time to time. The refusal of the Employee to submit to such
requests for examination will result in the presumption that the disability does
exist.
(ii) In the event the Employment is terminated because of
Disability the Employee shall be entitled to payment of Accrued Salary paid in
one lump sum within Sixty (60) days from the end of the date of termination
because of Disability.
6. TRAVEL AND EXPENSES: Company shall reimburse Employee for any necessary
travel or other expenses incurred in the performance hereinabove specified
provided such expenses constitute proper business deductions from taxable income
for Company and are excludable from taxable income to Employee under the
Internal Revenue Code and governing regulations. In addition, the Company is
responsible for all other expenses Employee incurs related to PureSpectrum,
Inc., including Employee's cell phone, notwithstanding if such cell phone is
also used for personal usage and for mileage on Employee's personal vehicle at a
rate of Fifty Cents ($0.50) per mile and for fuel costs.
7. TRADE SECRETS: Employee shall not disclose Company's trade secrets,
learned in the scope of Employee's employment nor use them in any way prior to
the Term of employment, during the Term of employment or thereafter, except as
required by operation of law. For the purpose of this Agreement, "trade
secrets" is defined as information not readily available to, or accessible by,
the general public or the internet community.
8. RESTRICTIVE COVENANTS/PROTECTION OF CONFIDENTIALITY:
a) Restrictive Covenants. It is agreed that Employee's services
hereunder are of a special, unique and extraordinary character and are vital to
the future success and viability of Company. Employee acknowledges that
Employee's compensation is partly in consideration of and conditioned upon
Employee agreeing to the covenants contained in this Paragraph and that the
restrictions set forth herein are a material inducement to Company's agreement
to employ Employee hereunder. Accordingly, Employee agrees that as long as
Employee shall remain a Employee of Company and for a period of One (1) years
thereafter, Employee will not directly or indirectly, individually, or through
any other person or corporate or other business entity, except on behalf of
Company:
(i) Employ, engage or solicit (or attempt to employ, engage or
solicit) any person who at that time is, or at any time during the preceding One
(1) year period was, in the employ of Company either as an Employee or an
independent contractor, or
(ii) Solicit business from any client (as defined below) or render
any services to or for any client, in each case whether or not the relationship
between Company and such clients was originally established in whole or in party
through Employee's efforts; or
(iii) Attempt in any manner to persuade any client to cease or
to reduce the amount of business which such client has customarily done
or contemplates doing with Company.
Employee acknowledges that because of the nature of the business engaged in
by Company and the fact that Clients can be and are serviced by Company wherever
located, it is impractical and unreasonable to place a geographic limitation on
the above covenants and the restrictions set forth herein are reasonable and
necessary to protect Company's interest.
For the purpose of this Paragraph, the term "client" shall mean, any person
or entity (A) who is then a client of Company; (B) who was a client of Company,
at any time during the One (1) year period immediately preceding the
Determination Date (as defined below); and (C) to whom Company had made a
presentation within a period of one (1) year immediately preceding the
Determination Date (i.e. prospective client); the term "Determination Date"
means, as applicable, the date of termination of Employee's employment, or if
Employee's employment shall not have terminated, the date of the prohibited
conduct described in Section 5 (b).
The Company acknowledges that it wishes only to limit Employee's right to
compete only to the extent necessary to protect the Company from unfair
competition. The Company further acknowledges that: (1) Employee will be able
to earn a livelihood in his profession as a business coach and consultant
without violating the foregoing restrictions and (2) that his ability to earn a
livelihood as a business coach and consultant without violating such
restrictions is a material condition to Employee's executing this Agreement.
b) Confidentiality. Employee also agrees that, during and after the term of
Employee's employment, Employee will not disclose to any person or entity any
Confidential Information or proprietary information or ideas of Company or any
client, prospective client or former client of Company or directly or
indirectly, individually, or through a corporation or other business entity,
utilize any such Confidential Information or proprietary information or ideas
for Employee's own benefit, or for the benefit of any third party. "Confidential
Information" shall be defined as any nonpublic information disclosed by one
party to the other party and shall be deemed to include the following
information of the respective parties, without limitation: (a) e-mail addresses,
customer lists, the names of customer contacts, business plans, technical data,
product ideas, personnel, contracts and financial information; (b) patents,
trade secrets, techniques, processes, business methodologies, schematics,
Employee suggestions, development tools and processes, computer printouts,
computer programs, design drawings and manuals, and improvements; (c)
information about costs, profits, markets and sales; (d) plans for future
development and new product concepts; (e) all documents, books, papers,
drawings, models, sketches, and other data of any kind and description,
including electronic data recorded or retrieved by any means, that have been or
will be disclosed, as well as written or oral instructions or comments.
c) Injunctive Relief. Employee agrees that any breach or threatened breach
of restrictions set forth in this Paragraph will result in irreparable injury to
Company for which it shall have no meaningful remedy in law and Company shall be
entitled to injunctive relief in order to enforce the provision thereof, without
being required to post a bond or other security. In addition, Company may take
all such other actions and remedies available to it under law or in equity and
shall be entitled to such damages as it can show it has sustained by reason of
such breach. If any provision of this Paragraph of this Agreement is found to be
unreasonably restrictive by a court of competent jurisdiction, then such
provision shall me modified by such court so as to apply such provision to the
maximum extent allowed by law, without affecting the validity of any other
provision of this Agreement.
9. ARBITRATION: Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by arbitration and by a
neutral arbitrator to be chosen by both parties, and the parties hereby agree to
be bound by the results. Such arbitration shall be held before the American
Arbitration Association in accordance with their rules and procedures. Payment
of arbitration fees is to be decided by the arbitrator and judgment upon the
award rendered may be entered in any court possessing jurisdiction of
arbitration awards.
10. BINDING AGREEMENT: This Agreement is a binding agreement between
Company and Employee, inuring to the parties respective personal and legal
representatives, successors and permitted transferees and assigns.
11. NOTICES: All notices shall be in writing and shall be personally
delivered, or sent by Certified Mail-Return Receipt Requested. Any notices sent
by facsimile shall be accompanied by Certified Mail-Return Receipt Requested.
All notices to Company shall be sent to PureSpectrum, Inc. at the location set
forth below, with a copy to the Secured Creditors' attorney, Brinen &
Associates, LLC, 7 Dey Street, Suite 1503, New York, New York 10007. All
notices to Employee shall be sent to the location set forth below.
12. BREACH: No breach of this Agreement by any party shall be deemed
material unless the offended party shall give written notice of such breach, and
the offending party shall have failed to cure the breach within Five (5)
business days after receipt of such notice, or commenced to cure with reasonable
diligence if such breach is not capable of being fully cured within Five (5)
days.
13. COUNTERPARTS/FACSIMILE: This Agreement may be executed in counterparts,
each one of which will be deemed to be an original, and it may be executed and
delivered by facsimile transmission.
14. SEVERABILITY: If, for any reason any provision of this Agreement is
held invalid, the other provisions of this Agreement will remain in effect.
15. ASSIGNMENT: Employee acknowledges that the services to be rendered are
unique and personal. Accordingly, the Employee may not assign any of these
rights or delegate any of his duties or obligations under this Agreement. The
rights and obligations of Company under this Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of Company.
16. ENTIRE AGREEMENT: This Agreement constitutes the entire Agreement
between Employee and Company with respect to the subject matter and supersedes
any and all prior understandings, written or oral. Further, no amendments or
additions to this Agreement shall be binding unless in writing and signed by the
party to be charged. This Agreement shall be construed, interpreted and enforced
under and in accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date set
forth in the introduction hereto.
EMPLOYEE: PURESPECTRUM, INC.
By: /s/Gregory Clements By: /s/Gregory Clements
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Gregory Clements
Name: Gregory Clements
Address: 214 Mclaughlin Court Title: CEO
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Richmond Hill, GA 31324
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SECURED CREDITOR REPRESENTATIVE:
By: /s/Todd Violette
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Name: Todd Violette
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