Exhibit 10.10
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
"Agreement") is made and entered into as of the 19th day of March, 1999, by and
between Stride & Associates, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx Xxxxxxxxx, an individual residing in Concord, Massachusetts (the
"Executive"), and amends and restates that certain Employment Agreement (the
"June Agreement") made and entered into on June 4, 1998 by and between the
Company and the Executive.
BACKGROUND
On the date of the June Agreement the Company executed that certain
Securities Purchase and Redemption Agreement (the "Securities Purchase
Agreement") by and between the Company, certain shareholders of the Company and
the investors named therein ) the "Investors"). A condition to the obligations
of the Investors under the Securities Purchase Agreement was the execution of
this Agreement by the Executive. The Executive is currently a key employee of
the Company. The Executive and the Company entered into the June Agreement and
to formalize the terms and conditions of the Executive's relationship with the
Company. The Executive is a shareholder of the Company. On the date hereof the
Company and the Executive desire to amend and restate the June Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises, representations, warranties and covenants set forth below, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
SECTION I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings unless the context specifically requires otherwise:
1.01 "CAUSE" shall mean only one or more of the following:
(a) the conviction of the Executive of a felony or a crime involving
moral turpitude under any state or federal law (or the entry of a plea of guilty
or no contest by the Executive with respect thereto);
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(b) any willful failure by the Executive to fulfill, in any material
respect, his duties and responsibilities (other than by reason of death or
Disability, as defined below) as set out in Sections 2.01 and 2.03 for a period
of thirty days after written notice of such failure form the Company to the
Executive;
(c) the failure or refusal of the Executive to adhere to any
established lawful policy of the Company for a period of thirty days after
written notice of such failure or refusal from the Company to the Executive;
(d) the commission by the Executive of any (i) fraud, (ii)
embezzlement, or (iii) misappropriation of funds or breach of fiduciary duty or
other act of dishonesty against the Company which, in the case of the actions
described in this clause (iii) results in material harm to the Company; or
(e) any material breach by the Executive of his obligations under the
provision of the Confidentiality and Non-Competition Agreement that continues
for a period of thirty days after written notice thereof from the Company.
1.02 "CONFIDENTIALITY AND NON-COMPETITION AGREEMENT" shall mean the
Confidentiality and Non-Competition Agreement dated the date hereof between the
Company and the Executive which shall be in the form attached hereto as EXHIBIT
A.
1.03 "DISABILITY" shall mean the Executive's inability to perform his
duties, obligations and responsibilities under this Agreement by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve (12) months.
SECTION II
EMPLOYMENT
2.01 POSITION. Upon the terms and conditions set forth in this
Agreement, the Company agrees to employ the Executive in the capacity of
President and Chief Executive Officer, and the Executive accepts such
employment. In addition, during the Term the Executive shall serve on the Board
of Directors of the Company.
2.02 TERM OF EMPLOYMENT. The initial term of Executive's employment
shall be for a period of three (3) years commencing on June 4, 1998 (the
"Term"), unless earlier terminated pursuant to Section 4.01.
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2.03 DUTIES.
(a) The Executive shall have the responsibility and authority to manage
the operations of the Company on a daily basis, together with such other duties
and responsibilities as shall be prescribed from time to time by the Board of
Directors consistent with the foregoing. During the Term commencing on the date
of this Agreement, the Executive shall devote substantially all of his working
time, attention and energy during normal working hours to the affairs of the
Company; provided, however, that nothing shall restrict the Executive's ability
to engage in religious, charitable or other community or non-profit activities
that do not impair his ability to fulfill his duties under this Agreement.
(b) During the Term, the Executive shall perform his duties to the best
of his ability, pursuant to the policies and regulations of the Company, and
shall use his best efforts to promote the success of the present and future
businesses of the Company.
2.04 CONFIDENTIALITY AND NON-COMPETITION AGREEMENT. As a condition to
the Executive's employment hereunder, the Executive shall execute and deliver to
the Company the Confidentiality and Non-Competition Agreement substantially in
the form of EXHIBIT A hereto, and shall fulfill his obligations set forth
therein.
SECTION III
COMPENSATION AND RELATED MATTERS
3.01 COMPENSATION.
(a) The Executive will receive a salary from the Company for his
services under this Agreement at an annual rate of $400,000, paid in accordance
with the Company's normal payroll practices.
(b) At the end of each fiscal year during the term of this Agreement
the Executive shall be eligible to receive an annual incentive bonus in an
amount determined by the Compensation Committee of the Board of Directors or, if
no such committee exists, the Board of Directors in the event the Company's
financial performance, as reflected in the Company's audited financial
statements for such fiscal year, meets performance objectives set by the
Compensation Committee of the Board of Directors or, if no such committee
exists, the Board of Directors from time to time during the term of the
Agreement.
3.02 EXPENSES. The Company will reimburse the Executive for his
reasonable out-of-pocket expenses, subject to delivery of appropriate
documentation, incurred in connection with the performance of services
hereunder.
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3.03 BENEFITS. The Executive will, at all times during his employment
with the Company, be entitled to participate in all hospital, health and
accident insurance programs and other routine employee benefits maintained by
the Company for its other similarly situated employees. Included in such
benefits shall be six weeks of vacation per year and $1,000,000 of life
insurance; provided that the Company shall be required to provide such life
insurance only so long as the premiums payable with respect thereto are within a
normal range for individuals of the same age as the Executive.
SECTION IV
TERMINATION
4.01 TERMINATION. Notwithstanding the provisions of Section 2.02, the
Executive's employment under this Agreement may be terminated prior to
expiration of the Term under the following circumstances:
(a) TERMINATION BY THE COMPANY FOR CAUSE. The Executive's
employment under this Agreement may be terminated for Cause without further
liability on the part of the Company effective immediately upon a vote of the
Board of Directors and written notice to the Executive.
(b) TERMINATION BY THE COMPANY WITHOUT CAUSE. Subject to the
payment of Termination Benefits pursuant to Section 4.02, the Executive's
employment under this Agreement may be terminated by the Company without Cause
upon written notice to the Executive by a vote of the Board of Directors;
provided that the Company may not terminate without Cause prior to the first
anniversary of the date of execution of this Agreement.
(c) TERMINATION UPON DEATH OR DISABILITY. Subject to the
payment of Termination Benefits pursuant to Section 4.02, the Executive's
employment under this Agreement (i) may be terminated by the Company upon the
Disability of the Executive after prior written notice to the Executive by a
vote of the Board of Directors or (ii) automatically without notice upon the
death of the Executive.
(d) TERMINATION BY THE EXECUTIVE FOR GOOD REASON. The
Executive may terminate his employment with the Company for Good Reason and
shall be entitled to receive the Termination Benefits pursuant to Section 4.02.
Good Reason shall be the occurrence of any of the following events:
(i) a significant change in the Executive's
responsibilities and/or duties which constitutes, when
compared to the Executive's responsibilities and/or his duties
before change, a demotion which chance continues for a period
of thirty days after written notice from the Executive;
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(ii) a material loss of title or office; or
(iii) the relocation of the Company's current Boston
office at which the Executive is principally employed to a
location more than thirty (30) miles from such Boston office,
which relocation is not approved by the Executive.
(e) TERMINATION BY THE EXECUTIVE OTHER THAN FOR GOOD REASON.
The Executive's employment under this Agreement may be terminated by the
Executive for any reason other than Good Reason by written notice to the Board
of Directors at least thirty (30) days prior to such termination.
4.02 PAYMENT ON TERMINATION. Upon termination hereunder the Executive
shall not be required to seek other employment, nor shall any compensation paid
by any other employer reduce the severance benefit payable to the Executive
pursuant to this Section 4.02. The Executive shall not be entitled to any
severance benefit from the Company in the event of termination of the
Executive's employment by the Company (a) for Cause, (b) upon disability, (c)
upon the Executive's death, or (d) upon expiration of the term of this
Agreement. In the event the Executive's employment hereunder is terminated by
the Company for Cause, the Executive shall not be eligible for any part of the
bonus payable pursuant to Section 3.01(b) hereof. Payment of severance under
this Section 4.02 shall constitute liquidated damages and the sole and exclusive
remedy available to the Executive upon termination of his employment for any and
all claims the Executive may have against the Company, its directors, its
officers, and controlling persons. Unless otherwise specifically provided in
this Agreement or otherwise required by law, all compensation and benefits
payable to the Executive under this Agreement shall terminate on the date of
termination of the Executive's employment under this Agreement, provided that
upon termination for any reason other than pursuant to Section 4.01(a), the
Company shall provide to the Executive (or his estate or other legal
representatives, as the case may be) any accrued but unpaid compensation and
benefits through the date of termination (including, without limitation any pro
rated cash bonus payable under Section 3.01(b)). Notwithstanding the foregoing,
in the event of termination of the Executive's employment with the Company
pursuant to Section 4.01(b) or (d) above, the Company shall also provide to the
Executive the following termination benefits (collectively, "Termination
Benefits") for a period of time equal to twelve (12) months following
termination:
(a) continuation of the Executive's Salary at the rate then in
effect pursuant to Section 3.01(a); and
(b) continuation of hospital, health and insurance benefits,
with the cost of the regular premium for such benefits paid by the Company.
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4.03 NON-RENEWAL. If the Executive continues his employment beyond the
Term without reaching agreement on an extension of this Agreement or an new
employment agreement and the Executive's employment is terminated other than for
Cause, the Company shall pay to the Executive the severance benefits specified
in Section 4.02 for a six-month period commencing on such termination.
SECTION V
MISCELLANEOUS
5.01 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts without giving
effect to its conflict of laws principles.
5.02 ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement between the Company and the Executive with respect to his employment
with the Company and supersedes all prior agreements relating to the same
subject matter, including any prior employment agreement between the Executive
and the Company or any of its subsidiaries. This Agreement cannot be amended,
changed or supplemented except in writing signed by the parties or their duly
authorized agents or attorneys in fact.
5.03 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, executors,
administrators, successors and permitted assigns.
5.04 ASSIGNMENT. This Agreement is nonassignable except that the
Company's rights, duties and obligations under this Agreement may be assigned
and delegated to any subsidiary or affiliate of the Company or to the acquiror
of the Company pursuant to merger, sale of stock or substantially all the assets
of the Company.
5.05 SEVERABILITY. If any one or more of the provisions of this
Agreement shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and the remaining provisions of this Agreement
shall not in any way be impaired.
5.06 NOTICES. All notices, requests, demands and other communications
under or in connection with this Agreement shall be in writing, shall be sent by
registered or certified mail, return receipt requested and shall be deemed to
have been given or made when received at the following offices:
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If to the Company: Stride & Associates, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
If to the Executive: Xx. Xxxxxxx Xxxxxxxxx
00 Xxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
The above addresses may be changed by written notice given as above provided.
5.07 CONSENT TO JURISDICTION. Each of the Company and the Executive, by
its or his execution hereof, (i) hereby irrevocably submits to the exclusive
jurisdiction of the state courts of The Commonwealth of Massachusetts for the
purpose of any claim or action arising out of or based upon this Agreement or
relating to the subject matter hereof, (ii) hereby waives, to the extent not
prohibited by applicable law, and agrees not to assert by way of motion, as a
defense or otherwise, in any such claim or action, any claim that is not subject
personally to the jurisdiction of the above-named courts, that its or his
property is exempt or immune from attachment or execution, that any such
proceeding brought in the above-named court is improper, or that this Agreement
or the subject matter hereof may not be enforced in or by such court, and (iii)
hereby agrees not to commence any claim or action arising out of or based upon
this Agreement or relating to the subject matter hereof other than before the
above-named courts nor to make any motion or take any other action seeking or
intending to cause the transfer or removal of any such claim or action to any
court other than the above-named courts whether on the grounds of inconvenient
forum or otherwise. Each of the Company and the Executive hereby consents to
service of process in any such proceeding in any manner permitted by
Massachusetts law, and agrees that service of process by registered or certified
mail, return receipt requested, at its address specified pursuant to Section
5.06 hereof is reasonably calculated to give actual notice.
5.08 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will take effect as an original and all of which
will evidence one and the same agreement.
5.09 PRONOUNS. All pronouns used herein shall be deemed to refer to the
masculine, feminine or neuter gender as the context requires.
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IN WITNESS WHEREOF this Agreement has been executed by the parties as
an instrument under SEAL as of the date first appearing above.
THE COMPANY:
Stride & Associates, Inc.
/s/ Xxxxxxx X. X. Xxxxxx
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Xxxxxxx X. X. Xxxxxx
Chief Financial Officer
EXECUTIVE:
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
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EXHIBIT A
Confidentiality and Non-Competition Agreement
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