Executive Employment Agreement between S. Cash Nickerson and TEAM America, Inc.

Summary

This agreement is between S. Cash Nickerson and TEAM America, Inc., appointing Mr. Nickerson as Chief Executive Officer starting December 1, 2002. He will receive a base salary of at least $350,000 per year, with eligibility for bonuses based on company performance and major transactions. The agreement is at-will, allowing either party to terminate employment at any time. It includes provisions for vacation, benefits, expense reimbursement, and confidentiality. Mr. Nickerson also agrees to non-competition and non-solicitation terms during and after his employment.

EX-10.13 5 l99439aexv10w13.txt EX-10.13 Exhibit 10.13 EXECUTIVE EMPLOYMENT AGREEMENT THIS AGREEMENT is made and entered into as of December 1, 2002 (the "Effective Date") between S. Cash Nickerson ("Executive") and TEAM America, Inc., an Ohio corporation (the "Company"). NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Executive hereby agree as follows: 1. Employment and Duties. On the terms and subject to the conditions set forth in this Agreement, the Company agrees to employ Executive as its Chief Executive Officer to render such services as would be customary for such position and to render such other services and discharge such other responsibilities as the Company's Board of Directors may, from time to time, stipulate. 2. Performance. Executive accepts the employment described in Section 1 of this Agreement and agrees to faithfully discharge his duties and devote adequate professional time and effort to the performance of the services described therein. 3. Term. Executive's employment under this Agreement (the "Employment Period") shall commence as of the Effective Date and continue until terminated by either party. Executive's employment is "at will," so that it may be terminated by either party at any time, with or without cause. On termination of Executive's employment, Executive's entitlement to any severance pay shall be governed by Section 7 hereof. 4. Compensation. 4.1 Salary. For all the services to be rendered by Executive hereunder, the Company agrees to pay, during the Employment Period, a base salary at the rate of not less than $350,000 ("Base Salary") per annum payable weekly or otherwise according to the Company's regular pay schedule for salaried employees. The Company and Executive agree that the salary provided herein shall be subject to annual review for cost of living and merit factors, with any adjustments being mutually agreed between the Company and Executive. 4.2 Incentive Compensation. With respect to each fiscal year of the Company during the Employment Period, the Company will pay Executive a bonus of up to 100% of the Base Salary set forth in Paragraph 4.1, or as thereafter in effect, based upon achievement of an EBITDA objective (the "EBITDA Objective") as determined from year to year pursuant to the Company's Senior Executive Bonus Plan, as amended from time to time. In addition, in the event the Company completes a sale, merger or major refinance transaction in 2003 (a "Major Transaction"-- whether such Major Transaction has occurred is to be determined in the good faith judgment of the Board of Directors), Executive will receive a cash bonus of $100,000.00 payable on closing of such transaction and the Company will immediately on the closing of a Major Transaction award Executive with options to acquire 100,000 qualified shares of its stock pursuant to its Incentive Stock Option Plan, to be issued with an exercise price of $0.60 per share, with vesting over four (4) years. 4.3 Vacation. Executive shall be entitled to take four (4) weeks of vacation, with pay, during each year of service under this Agreement. Vacation allowances shall cumulate from year to year based upon Company's standard vacation policy. The foregoing notwithstanding, the Company acknowledges that during 2001 and 2002, the press of duties on behalf of the Company has prevented Executive from taking vacation. Accordingly, Company will pay Executive additional compensation for 2002 equal to 2 weeks Base Salary and Executive will carry over two (2) weeks vacation to 2003 in accordance with the Company vacation policy. 4.4 Other Benefits. Except as otherwise specifically provided herein, during the Employment Period Executive shall be eligible for all non-wage benefits the Company provides generally for its other corporate officers. 5. Business Expenses. 5.1 Reimbursement. The Company shall reimburse Executive for the reasonable, ordinary, and necessary expenses incurred by him in connection with the performance of his duties hereunder, including but not limited to, ordinary and necessary travel expenses, entertainment expenses and automobile allowance. 5.2 Accounting. Executive shall provide the Company with an accounting of his expenses, which accounting shall clearly reflect which expenses are reimbursable by the Company. Executive will provide the Company with such other supporting documentation and other substantiation of reimbursable expenses as will conform to Internal Revenue Service or other requirements. 6. Covenants of Executive. 6.1 Non-Competition Provisions. The Executive and the Company agree that Company has protectable, private and confidential interests including but not limited to marketing strategies, financial information, good will, customers, customer lists, specific customer needs and contacts, current and future business plans and the existence and terms of this Agreement, and as such during the Employment Period the Executive shall not, without the written consent of the Company, engage in, be employed by, act as a consultant for or otherwise be compensated by, be a director of or own an equity interest in, any business which is engaged in employee leasing, the provision of PEO or ASO services, payroll and payroll tax service, employee benefits, or any other 2 business which is competitive with the Company business or cause any Company Client to cancel its relationship with the Company in order to purchase such products or services, nor disclose or use for his own benefit any of the protectable, private or confidential information belonging to or pertaining to the Company or its affiliates to any party without the prior written consent of the Company. 6.2 Non-Solicitation During and for a period of one (1) year following the Employment Period, Executive shall not, as an employee, agent, owner, contractor or in any other capacity, acting alone or in concert with others (i) solicit the business of any customer or prospect of the Company or of any businesses which were customers or prospects of the Company within two (2) years preceding the termination of the Employment Period (collectively, "Company Clients"); nor (ii) do business with or render services to any Company Client in connection with any business similar to the business of the Company or its subsidiaries, including, but not limited to, any business engaged in employee leasing, the provision of PEO or ASO services, payroll and payroll tax service, employee benefits, or job placement products or services or any other business which would tend to compete with the Company business or cause any Company Client to cancel its relationship with the company in order to purchase such products or services; nor (iii) solicit, hire or interfere in any way with the employment relationship between the Company and any of its employees (except the foregoing shall not apply to Executive's family members or former law partner). 6.3 Confidentiality. The Executive agrees and acknowledges that, by reason of the nature of his duties as an officer and employee, he will have or may have access to and become informed of confidential and secret information which is a competitive asset of the Company ("Confidential Information"), including without limitation any lists of client organizations or worksite employees, financial statistics, research data or any other statistics and plans contained in profit plans, capital plans, critical issue plans, strategic plans or marketing or operation plans or other trade secrets of the Company and any of the foregoing which belong to any person or company but to which the Executive has had access by reason of his employment relationship with the Company. The Executive agrees faithfully to keep in strict confidence, and not, either directly or indirectly, to make known, divulge, reveal, furnish, make available or use (except for use in the regular course of his employment duties) any such Confidential Information. The Executive acknowledges that all manuals, instruction books, price lists, information and records and other information and aids relating to the Company's business, and any and all other documents containing Confidential Information furnished to the Executive by the Company or otherwise acquired or developed by the Executive, shall at all times be the property of the Company. Upon termination of the Employment Period, the Executive shall return to the Company any such property or documents which are in his possession, custody or control, but his obligation of confidentiality shall survive such termination of the Employment Period until and unless any such Confidential Information shall have become, through no fault of the Executive, generally known to the trade. The obligations of the Executive under this subsection are in addition to, and not in limitation or preemption of, all other obligations of confidentiality which the Executive may have to the Company under general legal or equitable principles. 3 7. Termination. 7.1 Termination Without Cause; Severance. (a) In the event Executive's employment with the Company is terminated by the Company without cause (as defined below), or if Executive's employment is terminated by reason of his death or disability, Executive shall be entitled to severance pay in the amount described in section 7.1 (b) below ("Severance"). If Executive's employment is terminated with cause, he shall not be entitled to Severance. (b) If Executive is entitled to Severance under Section 7.1(a), such Severance, inclusive of any EBITDA bonus to which Executive may be entitled under section 4.2, shall be equal to not less than 150% of his Base Salary in effect at the time of termination, payable immediately on termination. The Company shall use its best efforts to forthwith obtain a bond to secure this obligation; provided the Company shall not be obligated to incur a cost for such bond in excess of $25,000 annually. Executive may assign his right to Severance. (c) In the event Severance is payable hereunder, the Employment Period shall be deemed to include the time with respect to which Severance is paid for purposes of Section 6 hereof (i.e., if Executive is paid 150% of his Base Salary as Severance, the Employment Period will be deemed to have been extended for 18 months). 7.2 Termination With Cause. The Company shall have the option to terminate the Employment Period for good cause ("Cause"), which shall consist only of the following: (a) acts of misconduct materially injurious to the Company, which acts occur or are first discovered after the date hereof; or (b) the willful and continued failure by the Executive substantially to perform his duties with the Company (other than any such failure resulting from incapacity due to mental or physical illness) after a demand in writing for substantial performance is delivered by the Board of Directors, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed his duties, and affords Executive a reasonable opportunity to cure, and such failure results in demonstrably material injury to the Company. Cause shall not, however, exist as the result of any act or omission believed in good faith to have been in or not opposed to the interests of the Company. The Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of not less than a majority of the entire membership of the Board of Directors, at a meeting of the Board of Directors called and held for the purpose (after not less than 30 days' written notice to the Executive and an opportunity for him, together with his counsel, to be heard before the Board of Directors, such notice of meeting to indicate the specific termination provision of this Agreement relied upon and to specify in reasonable detail the facts and circumstances claimed to provide a basis for termination under the provision so indicated), finding that in the good faith opinion of the Board of Directors the Executive 4 was guilty of conduct set forth above in clauses (a) or (b) of the first sentence of this paragraph and specifying the particulars thereof in detail. 7.3 Surrender of Properties. Upon termination of Executive's employment with the Company, regardless of the cause therefor, Executive shall promptly surrender to the Company all property provided him by the Company for use in relation to his employment, and, in addition, Executive shall surrender to the Company any and all sales materials, lists of clients and prospective clients, price lists, files, records, or other materials and information of or pertaining to the Company or its clients or prospective clients or the products, business, and operations of the Company. 7.4 Survival of Covenants. The covenants of Executive set forth in Section 6 of this Agreement shall survive the termination of the Employment Period or termination of this Agreement, regardless of the cause therefor. 8. Indemnification. The Company shall indemnify and hold harmless the Executive to the fullest extent permitted by the Code of Regulations of the Company with respect to any claim asserted by any third party arising from or relating to any action or inaction of Executive while serving the Company. In addition, without conceding the enforceability of any such obligation, upon the occurrence of a Major Transaction the Company will use its best efforts to cause Stonehenge Opportunity Fund, LLP to release Executive from any obligation under that certain Unconditional Guaranty of Payment and Performance dated April 9, 2002. 9. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all its assets to expressly assume and agree to perform this agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place. 10. General Provisions. 10.1 Notice. Any notice required or permitted hereunder shall be made in writing (a) either by actual delivery of the notice into the hands of the party thereunder entitled, or (b) by the mailing of the notice in the United States mail, certified or registered mail, return receipt requested, all postage prepaid and addressed to the party to whom the notice is to be given at the party's respective address set forth below, or such other address as the parties may from time to time designate by written notice as herein provided. As addressed to the Company: TEAM America, Inc. 110 E. Wilson Bridge Rd. Worthington, Ohio 43085 Attention: S. Cash Nickerson 5 As addressed to Executive: S. Cash Nickerson 7755 Lambert Park Drive New Albany, OH 43054 The notice shall be deemed to be received in case (a) on the date of its actual receipt by the party entitled thereto and in case (b) on the date of its mailing. 10.2 Amendment and Waiver. No amendment or modification of this Agreement shall be valid or binding upon the Company unless made in writing and signed by an officer of the Company duly authorized by the Board of Directors or upon Executive unless made in writing and signed by him. The waiver by the Company of the breach of any provision of this Agreement by Executive shall not operate or be construed as a waiver of any subsequent breach by him. 10.3 Governing Law. The validity and effect of this Agreement and the rights and obligations of the parties hereto shall be construed and determined in accordance with the laws of the State of Ohio. 10.4 Entire Agreement. This Agreement contains all of the terms agreed upon by the parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications between the parties dealing with such subject matter, whether oral or written. 10.5 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the transferees, successors and assigns of the Company, including any company or corporation with which the Company may merge or consolidate. 10.6 Arbitration. Any dispute or controversy arising under or in connection with this Agreement shall be resolved exclusively by arbitration in Franklin County, Ohio under the auspices and in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator's award in any court having jurisdiction. The Company shall pay all expenses arising from or relating to the arbitration proceeding. 10.7 Costs of Enforcement. In the event of any suit or proceeding seeking to enforce the terms, covenants, or conditions of this Agreement, the prevailing party shall, in addition to all other remedies and relief that may be available under this Agreement or applicable law, recover his or its reasonable attorneys' fees and costs as shall be determined and awarded by the court or arbitrator. 10.8 Headings. Numbers and titles to paragraphs hereof are for information purposes only and, where inconsistent with the text, are to be disregarded. 10.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together, shall be and constitute one and the same instrument. 6 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the date and year first written above. TEAM AMERICA, INC. ------------------------------ By: Ted Crawford Title: President ------------------------------- S. Cash Nickerson 7