CROSS COUNTRY HEALTHCARE, INC.
EXHIBIT 10.1
CROSS COUNTRY HEALTHCARE, INC.
March 20, 2013
Xx. Xxxxxxx X. Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxxx:
Cross Country Healthcare, Inc., a Delaware corporation (the “Company”), hereby agrees to employ you, and you hereby agree to accept such employment, under the following terms and conditions:
1. Term of
Employment.
(a) Except for earlier termination as provided in Section 9 below,
your employment under this Agreement will be for an initial term
commencing on April 1, 2013 (the “Effective Date”) and
terminating on March 31, 2016 (the “Initial Term”).
(b) On the day following the last day of the Initial Term and each anniversary thereof, the term of this Agreement will be automatically renewed for successive renewal terms of one year each, subject to earlier termination as provided in Section 9 below, unless at least 90 days’ prior to the last day of the Initial Term or any such anniversary date either party will have given to the other party written notice of its intention not to renew this Agreement. The period of time between the Effective Date and the termination of your employment hereunder will be referred to herein as the “Employment Term.”
2. Compensation.
(a) You will be compensated for all services rendered by you under
this Agreement at the rate of (a) for the period from the Effective Date
through the date you are appointed Chief Executive Officer of the
Company in accordance with Section 3, $500,000 per annum and (b)
on and following the date you are appointed Chief Executive Officer of
the Company in accordance with Section 3, $550,000 per annum,
payable in such manner as is consistent with the Company’s payroll
practices for executive employees. Prior to each anniversary of the
Effective Date, the Company’s Board of Directors (the “Board”),
or Compensation Committee of the Board (the “Compensation
Committee”), will review and consider in its sole discretion whether
to increase the base salary payable to you hereunder. Your annual rate
of base salary as determined herein from time to time, is hereinafter
referred to as the “Base Salary”.
(b) For each calendar year during the Employment Term, you will be
eligible to receive an annual bonus in an amount of up 100% of your Base
Salary for the applicable year based on the level of achievement
performance goals to be established by the Compensation Committee for
such year. The level of the performance goals achieved and the amount
of the bonus will be determined by the Compensation Committee in its
sole discretion. Any bonuses will be paid by the Company no later than
March 15 of the year immediately following the applicable bonus
period. You must be employed by the Company or its affiliates on the
day any bonus is paid to earn any part of that bonus. Your bonus for
2013, if any, will be pro rated, determined by multiplying the amount of
such bonus which would be due for the 2013 by a fraction, the numerator
of which is 285 and the denominator of which is 365.
(c) Subject to the approval of the Compensation Committee and your
actual commencement of employment, on the Effective Date you will
receive the following long term incentive awards pursuant to the
Company’s 2007 Stock Incentive Plan and subject to the provisions of the
Company’s standard equity award agreements:
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(x) a grant of a number of restricted shares of the Company’s common stock equal to Two Hundred Fifty Thousand Dollars ($250,000) divided by the closing price of the Company’s common stock (the “Common Stock”) on April 1, 2013 (the “Restricted Shares”) ; and |
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(y) a grant of 50,000 non-tandem stock appreciation rights with a reference price equal to the closing price of the Company’s common stock on April 1, 2013 (the “SARs”). |
The Restricted Shares will vest as set forth in the Restricted Stock
Agreement to be entered into between you and the Company following the
Effective Date. The SARs will vest and become exercisable in equal
annual installments on each anniversary of the Effective Date over a
four year period subject to your continuous employment by the Company or
its affiliates through the applicable vesting date.
3. Duties.
(a) You will initially serve as the President and Chief
Operating Officer of the Company, subject to the direction and control
of, and reporting to, the Company’s Chief Executive Officer and the
Board. On or prior to July 31, 2013, the Board will appoint you to
serve as, and for the remainder of the Employment Term you will serve
as, the Chief Executive Officer of the Company, subject to the direction
and control of, and reporting directly to, the Board. In addition,
during the Employment Period, the Company will nominate you to serve as
a member of Board. Your principal office will be located at the
Company’s principal office in Boca Raton, Florida.
(b) You will devote your full business time, energies and
attention to the business and affairs of the Company and its
subsidiaries, if any.
(c) You will, except as otherwise provided herein, be
subject to the Company’s rules, practices and policies applicable to the
Company’s senior executive employees.
4. Benefits. You will be entitled to such benefits, if any, as are generally provided by the Company to its employees, subject to satisfying the applicable eligibility requirements. The foregoing, however, will not be construed to require the Company to establish any such plans or to prevent the Company from modifying or terminating any such plans, and no such action or failure thereof will affect this Agreement.
5. Expenses. The Company will reimburse you for reasonable expenses, including travel expenses, incurred by you in connection with the business of the Company upon the presentation by you of appropriate substantiation for such expenses in accordance with the Company’s expense reimbursement policy. The Company will pay on your behalf or reimburse you for the relocation expenses set forth on Exhibit A attached hereto; provided, however, that the Company’s aggregate obligations for such relocation expenses will in no event exceed $200,000. In addition, the Company will reimburse you for the reasonable legal fees incurred by you in connection with the negotiation of this Agreement.
6. Restrictive Covenants.
(a) Non-Competition. During
such time as you will be employed by the Company, and for a period of
one year thereafter, you will not, without the written consent of the
Board, directly or indirectly become associated with, render services
to, invest in, represent, advise or otherwise participate as an officer,
employee, director, stockholder, partner, agent of or consultant for,
any business which is conducted in any of the jurisdictions in which the
Company’s business is conducted and which is competitive with the
business in which the Company is engaged; provided, however,
that nothing herein will prevent you from acquiring up to 3% of the
securities of any company listed on a national securities exchange or
quoted on the NASDAQ quotation system, provided your involvement with
any such company is solely that of a stockholder.
(b) Non-Interference. You
agree that during such time as you will be employed by the Company, and
for a period of two years thereafter you will not without the written
consent of the Board, for your own account or for the account of any
other person, interfere with the Company’s relationship with any of its
suppliers, customers or employees.
(c) Reformation. The parties hereto intend that the covenants contained in this Section 6 will be deemed a series of separate covenants for each country, state, county and city in which the Company’s business is conducted. If, in any judicial proceeding, a court will refuse to enforce all the separate covenants deemed included in this Section 6 because, taken together, they cover too extensive a geographic area, the parties intend that those of such covenants (taken in order of the countries, states, counties and cities therein which are least populous) which if eliminated would permit the remaining separate covenants to be enforced to the maximum extent permitted in such proceeding will, for the purpose of such proceeding, be deemed eliminated from the provisions of this Section 6. For purposes of Section 6, the term “Company” will include the Company and each subsidiary of the Company.
7. Confidentiality, Non-Interference
and Proprietary Information.
(a) Confidentiality. In
the course of your employment by the Company hereunder, you will have
access to confidential or proprietary data or information of the Company
and its operations. You will not at any time divulge or communicate to
any person nor will you direct any Company employee to divulge or
communicate to any person (other than to a person bound by
confidentiality obligations similar to those contained herein and other
than as necessary in performing your duties hereunder) or use to the
detriment of the Company or for the benefit of any other person, any of
such data or information. The provisions of this Section 7(a) will
survive your employment hereunder, whether by the normal expiration
thereof or otherwise. The term “confidential or proprietary data or
information” as used in this Agreement will mean information not
generally available to the public or generally known within the relevant
industry, including, without limitation, personnel information,
financial information, customer lists, supplier lists, trade secrets,
information regarding operations, systems, services, knowhow, computer
and any other processed or collated data, computer programs, pricing,
marketing and advertising data.
(b) Proprietary
Information and Disclosure. You agree that you will at all
times promptly disclose to the Company (which, for the purposes of this
Section 7, will include the Company and any subsidiaries and affiliates
of the Company), in such form and manner as the Company may reasonably
require, any inventions, improvements or procedural or methodological
innovations, programs methods, forms, systems, services, designs,
marketing ideas, products or processes (whether or not capable of being
trade-marked, copyrighted or patented) conceived or developed or created
by you during or in connection with your employment hereunder and which
relate to the business of the Company and any subsidiaries or affiliates
(“Intellectual Property”). You agree that all such
Intellectual Property will be the sole property of the Company. You
further agree that you will execute such instruments and perform such
acts as may reasonably be requested by the Company to transfer to and
perfect in the Company all legally protectable rights in such
Intellectual Property.
(c) Return of Property. All written materials, records and documents made by you or coming into your possession during your employment concerning any products, processes or equipment, manufactured, used, developed, investigated or considered by the Company or otherwise concerning the business or affairs of the Company, will be the sole property of the Company, and upon termination of your employment, or upon request of the Company during your employment, you will promptly deliver same to the Company. In addition, upon termination of your employment, or upon request of the Company during your employment, you will deliver to the Company all other Company property in your possession or under your control, including, but not limited to, financial statements, marketing and sales data, patent applications, drawings and other documents.
8. Equitable Relief. With respect to the covenants contained in Sections 6 and 7 of this Agreement, you agree that any remedy at law for any breach of said covenants may be inadequate and that the Company will be entitled to specific performance or any other mode of injunctive and/or other equitable relief to enforce its rights hereunder or any other relief a court might award.
9. Earlier Termination. Your
employment hereunder will terminate prior to the expiration of the
Initial Term (or any renewal term, in the event of renewal) on the
following terms and conditions:
(a) This Agreement will terminate automatically on the date
of your death.
(b) The Company may terminate your employment upon notice if
you are unable to perform your duties hereunder for 120 days (whether or
not continuous) during any period of 180 consecutive days by reason of
physical or mental disability. The disability will be deemed to have
occurred on the 120th day of your absence or lack of adequate
performance.
(c) This Agreement will terminate immediately upon the
Company’s sending you written notice terminating your employment
hereunder for Cause. “Cause” means (i) an act or
acts of fraud or dishonesty by you which results in the personal
enrichment of you or another person or entity at the expense of the
Company; (ii) your admission, confession, pleading of guilty or nolo
contendere to, or conviction of (x) any felony (other than third
degree vehicular infractions), or (y) of any other crime or offense
involving misuse or misappropriation of money or other property; (iii)
your continued material breach of any obligations under this Agreement
30 days after the Company has given you notice thereof in reasonable
detail, if such breach has not been cured by you during such period; or
(iv) your gross negligence or willful misconduct with respect to your
duties or gross misfeasance of office.
(d) This Agreement will terminate immediately upon (x) the
Company’s sending you written notice terminating your employment
hereunder without Cause for any reason or for no reason, or (y) your
delivery to the Company of a written notice of your resignation for Good
Reason. “Good Reason” means, if without your
written consent, any of the following events occurs that are not cured
by the Company within 30 days of written notice specifying the
occurrence such Good Reason event, which notice will be given by you to
the Company within 90 days after the occurrence of the Good Reason
event: (i) a material diminution in your then authority, duties or
responsibilities; (ii) a material diminution in your Base Salary; (iii)
a relocation of your principal business location to a location more than
50 miles outside of Boca Raton, Florida; or (iv) any material breach of
this Agreement by the Company. Your resignation hereunder for Good
Reason will not occur later than 180 days following the initial date on
which the event you claim constitutes Good Reason occurred. Upon a
termination of your employment by the Company without Cause other than
due to a non-renewal of the Agreement by the Company in accordance with
Section 1(b), or your resignation for Good Reason, the Company’s sole
obligation to you will be to pay or provide to you the Accrued Amounts
(as defined below) and, subject to Section 9(f), to pay you (i)
continued payments of the Base Salary in accordance with the Company’s
regular payroll practices for a period of 12 months following the date
of termination and (ii) a Pro Rata Portion (as hereinafter defined) of
the bonus, if any, earned by you with respect to the calendar year in
which such termination occurred (collectively, the “Severance
Payments”); provided, that the first payment of the
Severance Payment due pursuant to clause (i) of this sentence will be
made on the 90th day after the date of termination, and will
include payments that were otherwise due prior thereto and provided,
further, that the Severance Payment, if any, due pursuant to clause (ii)
of this sentence will be made promptly following the completion of the
audit for such calendar year. “Pro Rata Portion” shall mean a fraction,
the numerator of which is the number of days elapsed in the calendar
year of termination prior to the date of termination, and the
denominator of which is 365. Notwithstanding the foregoing, if you are
or become eligible for severance benefits under the Company’s Executive
Severance Plan (as in effect on the Effective Date, as thereafter
amended, or any similar plan or arrangement adopted by the Company in
replacement thereof, the “Severance Plan”) you will cease
to be eligible for the Severance Payments and the Company sole
obligation will be to pay you the amounts and provide you with the
benefits provided in the Severance Plan subject to the terms and
conditions thereof(i).
(e) Except as specifically set forth in Section 9(d) above,
upon termination of your employment for any reason, the Company’s
obligations hereunder will cease other than to provide you with
(collectively, the “Accrued Amounts”):
(i) any unpaid Base Salary through the date of
termination payable in accordance with the Company’s regular payroll
practices;
(ii) reimbursement for any unreimbursed business
expenses incurred through the date of termination paid promptly in
accordance with Sections 5 and 17(b)(iv);
(iii) payment for any accrued but unused vacation and
sick time in accordance with Company policy, payable within thirty (30)
days following the termination of the your employment; and
(iv) all other applicable payments or benefits to which
the you may be entitled under, and paid or provided in accordance with,
the terms of any applicable compensation arrangement or benefit, equity
or fringe benefit plan or program or grant or this Agreement.
(f) The Severance Payments will only be payable to you if
within 60 days following the date of termination you execute and deliver
to the Company a fully effective and irrevocable release of claims
against the Company and related parties, which the Company will provide
to you within 7 days following the date of termination.
10. Representation and Warranty. The
execution, delivery and performance of this Agreement by you will not
conflict with or result in a violation of any agreement to which you are
a party or any law, regulation or court order applicable to you.
11. Effectiveness; Entire Agreement;
Modification. This Agreement constitutes the full and complete
understanding of the parties and will, on the Effective Date, supersede
all prior agreements between the parties with respect to your employment
arrangements. No representations, inducements, promises, agreements or
understandings, oral or otherwise, have been made by either party to
this Agreement, or anyone acting on behalf of either party, which are
not set forth herein, or any others are specifically waived. This
Agreement may not be modified or amended except by an instrument in
writing signed by the party against which enforcement thereof may be
sought.
12. Severability. Any term
or provision of this Agreement which is invalid or unenforceable in any
jurisdiction will, as to such jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
13. Waiver of Breach. The
waiver of either party of a breach of any provision of this Agreement,
which waiver must be in writing to be effective, will not operate as or
be construed as a waiver of any subsequent breach.
14. Notices. All notices
hereunder will be in writing and will be sent by express mail or by
certified or registered mail, postage prepaid, return receipt requested,
if to you, to your residence as listed in the Company’s records, and if
to the Company to:
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Cross Country Healthcare, Inc |
15. Assignability; Binding Effect. This
Agreement is personal to you and may not be assigned by you. This
Agreement will be binding upon and inure to the benefit of you, your
legal representatives, heirs and distributees, and will be binding upon
and inure to the benefit of the Company, its successors and assigns.
16. Governing Law. All
questions pertaining to the validity, construction, execution and
performance of this Agreement will be construed and governed in
accordance with the laws of the State of Florida, without regard to the
conflicts or choice of law provisions thereof.
17. Tax
Matters.
(a) WITHHOLDING. The
Company may withhold from any and all amounts payable under this
Agreement such federal, state and local taxes as may be required to be
withheld pursuant to any applicable law or regulation.
(b) SECTIONS
409A.
(i) Although the Company does not guarantee
the tax treatment of any payments under this Agreement, the intent of
the parties is that payments and benefits under this Agreement comply
with, or be exempt from, Code Section 409A and, accordingly, to the
maximum extent permitted, this Agreement will be interpreted in
accordance with the foregoing. In no event whatsoever will the Company
be liable for any additional tax, interest or penalties that may be
imposed on the Employee by Code Section 409A or any damages for failing
to comply with Code Section 409A.
(ii) Notwithstanding
any provision in this Agreement or elsewhere to the contrary, if on your
date of termination you are deemed to be a “specified employee” within
the meaning of Code Section 409A and using the identification
methodology selected by the Company from time to time, or if none, the
default methodology under Code Section 409A, any payments or benefits
due upon a termination of your employment under any arrangement that
constitutes a “deferral of compensation” within the meaning of Code
Section 409A (whether under this Agreement, any other plan, program,
payroll practice or any equity grant) and which do not otherwise qualify
under the exemptions under Treas. Regs. Section 1.409A-1 (including
without limitation, the short-term deferral exemption and the permitted
payments under Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)), will be
delayed and paid or provided to you in a lump sum (whether they would
have otherwise been payable in a single sum or in installments in the
absence of such delay), on the earlier of (i) the date which is six
months and one day after your separation from service (as such term is
defined in Code Section 409A) for any reason other than death, and (ii)
the date of your death, and any remaining payments and benefits will be
paid or provided in accordance with the normal payment dates specified
for such payment or benefit.
(iii) Notwithstanding anything in this Agreement or elsewhere
to the contrary, a termination of employment will not be deemed to have
occurred for purposes of any provision of this Agreement providing for
the payment of any amounts or benefits that constitute “non-qualified
deferred compensation” within the meaning of Code Section 409A upon or
following a termination of your employment unless such termination is
also a “separation from service” within the meaning of Code Section 409A
and, for purposes of any such provision of this Agreement, references to
a “termination,” “termination of employment” or like terms will mean
“separation from service” and the date of such separation from service
will be the date of termination for purposes of any such payment or
benefits.
(iv) Any taxable reimbursement of costs and
expenses by the Company provided for under this Agreement will be made
in accordance with the Company’s applicable policy and this Agreement
but in no event later than December 31 of the calendar year next
following the calendar year in which the expenses to be reimbursed are
incurred. With regard to any provision in this Agreement that provides
for reimbursement of expenses or in-kind benefits, except as permitted
by Code Section 409A, (x) the right to reimbursement or in-kind benefits
is not subject to liquidation or exchange for another benefit, and (y)
the amount of expenses eligible for reimbursement, or in-kind benefits,
provided during any taxable year will not affect the expenses eligible
for reimbursement, or in-kind benefits to be provided, in any other
taxable year, provided that the foregoing clause (y) will not be
violated with regard to expenses reimbursed under any arrangement
covered by Section 105(b) of the Code solely because such expenses are
subject to a limit related to the period the arrangement is in effect.
(v) Whenever
a payment under this Agreement may be paid within a specified period,
the actual date of payment within the specified period will be within
the sole discretion of the Company.
(vi) With regard to
any installment payments provided for under this Agreement, each
installment thereof will be deemed a separate payment for purposes of
Code Section 409A.
18. Headings. The headings of this Agreement are intended solely for convenience of reference and will be given no effect in the construction or interpretation of this Agreement.
19. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.
20. Review of this Agreement. You acknowledge that you have (a) carefully read this Agreement, (b) had an opportunity to consult with independent counsel with respect to this Agreement and (c) entered into this Agreement of your own free will.
If this letter correctly sets forth our understanding, please sign the
duplicate original in the space provided below and return it to the
Company, whereupon this will constitute the employment agreement between
you and the Company effective and for the term as stated herein.
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CROSS COUNTRY HEALTHCARE, INC. |
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By: |
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Xxxxxx X. Xxxxxxx, President |
Agreed as of the date
first above written:
________________________
Xxxxxxx X. Xxxxxx
EXHIBIT A
- 2 house hunting trips.
- $5,000 per month for temporary housing.
- Transport of one car from Seattle and one car from Boston (covered).
- Packing and shipping of household goods from Seattle and Boston.
- Closing costs including realtor fees for sale of Boston home; provided, however, the Company shall only be required to reimburse for 50% of realtor fees.
- Closing costs for acquiring a home in South Florida.
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