Exhibit 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 2000, between THE JUDGE
GROUP, INC. ("JG" or "Company") and Xxxxxx X. Xxxxxxxxxxxx (the "Executive").
BACKGROUND
The Company is a Pennsylvania corporation engaged in the business of
technical placement and training.
Executive has substantial business experience and talents in the area
of financial controls and managment. JG believes that Executive will contribute
to the future success of JG, and wishes to employ Executive on the terms and
conditions set forth in this Agreement.
Pursuant to the foregoing, Company desires to employ Executive, and
Executive desires to enter into the employ of Company, on the terms and
conditions contained in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and intending, to be legally bound
hereby, the parties hereto agree as follows:
SECTION 1. CAPACITY AND DUTIES
1.1 Employment; Acceptance of Employment. JG hereby employs Executive
and Executive hereby accepts employment by Company for the period and upon the
terms and conditions hereinafter set forth.
1.2 Capacity and Duties.
(a) Executive shall be principally employed by JG as its Chief
Financial Officer, and, subject to the supervision of the Chief Executive
Officer of JG shall perform such duties and have such authority consistent with
his position as may from time to time be specified by the Chief Executive
Officer of JG. Executive shall report directly to the Chief Executive Officer
and shall perform his duties for JG principally from Company's office located in
the Bala Cynwyd, Pennsylvania, except for periodic travel that may be necessary
or appropriate in connection with the performance of Executive's duties
hereunder.
(b) Executive shall devote his full working time, energy, skill and
best efforts to the performance of his duties hereunder, in a manner which will
faithfully and diligently further the business and interests of Company and its
affiliates (as defined below), and shall not be employed by or participate or
engage in or be a part of in any manner the management or operation of any
business enterprise other than Company and its affiliates without the prior
written consent of the Chief Executive Officer, which consent may be granted or
withheld in his sole discretion. For the purposes of this definition "affiliate"
means any person or entity which is a subsidiary of or controlled by, or under
common control with, the Company
(c) Executive, without the express consent of Chief Executive
Officer, shall have no actual, apparent or implied authority to pledge the
credit of JG or JG; bind JG under any contract, note, mortgage or other
agreement outside the ordinary course of Company's business; release or
discharge any debt due JG; or sell, mortgage, transfer or otherwise dispose of
any assets of JG.
SECTION 2. TERM OF EMPLOYMENT
2.1 Term. The initial term of Executive's employment hereunder shall be
one [1) year commencing on the date hereof and shall thereafter automatically be
renewed each year thereafter unless and until either party shall give notice of
his or its election to terminate Executive's employment at least ninety (90)
days prior to the end of the then-current term, or unless earlier terminated as
hereinafter provided.
SECTION 3. COMPENSATION
3.1 Basic Compensation. As compensation for Executive's services
hereunder, Company shall pay to Executive a salary at the annual rate of
$125,000 (the "Base Salary"), payable in bi-weekly installments in accordance
with Company's regular payroll practices in effect from time to time for the
first year during the term of Executive's employment, and for each subsequent
year a salary at such higher annual rate as the Board shall from time to time
determine in its sole discretion.
3.2 Performance Bonus. During the Term of this Agreement, in the sole
discretion of the Board, Executive shall be entitled to receive an annual
performance bonus in accordance with the policies of JG in place from time to
time as administered by the Compensation Committee of the Board, provided that
Executive has met or exceeded net profit or other performance goals established
by such committee.
3.3 Stock Options.
(a) Company agrees that, subject to the approval of the Board,
during the Term it will present to Executive on or about each Anniversary Date
of this Agreement, a stock option agreement that will enable employee to
purchase shares of the common stock of JG, and subject to the compliance of
Executive with the terms and conditions of this Agreement.
(b) The options referred to in Section 3.3(a) above shall be
granted pursuant to the 1996 Incentive Stock Option and Non-Qualified Plan for
Key Employees and Non-Employee Directors (the "Plan"). All options shall be
subject to the terms and conditions of the Plan, as applicable, and applicable
laws and regulations. To the extent permitted by Plan and applicable law,
options granted to Executive shall be Incentive Stock Options under Section
422(b) of the Internal Revenue Code of 1986, as amended. The exercise price per
share of common stock for options issued to Executive shall be the closing price
of the stock at the close of trading on the date the options are awarded. If the
stock is not traded on the date the options are awarded, the next succeeding day
of trading shall be utilized. Options granted pursuant to this paragraph shall
be fully vested in amounts and on the dates specified in the Stock Option
Agreement issued to the Executive shall at all times be subject to compliance
with the terms and conditions of this Agreement, the Stock Option Agreement and
the Plan. All such options shall become immediately vested upon change of
control, as defined herein, whether or not Executive is terminated or
constructively terminated pursuant to such change of control.
3.4 Executive Benefits. In addition to the compensation provided for in
Sections 3.1, 3.2 and 3.3, Executive shall be entitled during the term of his
employment to participate in Company's medical and 401(k) plans and such other
of Company's employee benefit plans and benefit programs as may from time to
time be provided for other employees of Company whose duties, responsibilities,
and compensation are reasonably comparable to those of Executive.
3.5 Vacation. Executive shall be entitled all legal holidays observed
by JG and to a vacation of four (4) weeks during each calendar year during the
term of his employment, during which time his compensation shall be paid in
full.
3.6 Expense Reimbursement. During the term of his employment, Company
shall reimburse Executive for all reasonable expenses incurred by him in
connection with the performance of his duties hereunder in accordance with its
regular reimbursement policies as in effect from time to time and upon receipt
of itemized vouchers therefor and such other supporting information as Company
may reasonably require.
3.7 Automobile. During the term of his employment, Company shall
provide Executive with a four hunderd dollar ($400) per month car allowance.
3.8 Phase Trip. Executive and his spouse shall be entitled to attend
one Company Phase Trip per year at the Company's expense. Should Executive
and/or his spouse choose not to attend a Phase Trip, he shall not be reimbursed
for the expense.
SECTION 4. TERMINATION OF EMPLOYMENT
4.1 Death of Executive. Executive's employment hereunder shall
immediately terminate upon his death, upon which Company shall not thereafter be
obligated to make any further payments hereunder other than amounts (including
salary, bonuses, expense reimbursement, etc.) accrued as of the date of
Executive's death in accordance with generally accepted accounting principles.
4.2 Disability of Executive. If Executive, in the reasonable opinion of
the Board, is or has been unable, due to his physical, mental or emotional
illness or condition to perform his duties hereunder for a period of forty five
(45) consecutive days or sixty (60) days within twelve consecutive months, then
the Board shall have the right to terminate Executive's employment upon ten (10)
days' prior written notice to Executive at any time during the continuation of
such inability, in which event Company shall not thereafter be obligated to make
any further payments hereunder other than amounts (including salary, bonuses,
expense reimbursement, etc.) accrued under this Agreement as of the date of such
termination in accordance with generally accepted accounting principles.
4.3 Termination for Cause. Executive's employment hereunder shall
terminate immediately upon notice that the Board is terminating Executive for
"cause" (as defined herein), in which event Company shall not thereafter be
obligated to make any further payments hereunder other than amounts (including
salary, bonuses, expense reimbursement, etc.) accrued under this Agreement as of
the date of such termination in accordance with generally accepted accounting
principles. As used herein, "cause" shall include, without limitation, the
following:
(i) dishonesty;
(ii) fraud committed in connection with Executive's employment,
theft or misappropriation or embezzlement of Company's or JG's funds;
(iii) conviction of any felony, first degree misdemeanor, crime
involving fraud or misrepresentation, or of any other crime (whether or not
connected with his employment) the effect of which is likely to adversely affect
JG, JG or their affiliates;
(iv) material breach of Executive's obligations under this
Agreement not corrected after notice and a period of fifteen (15) days to cure;
(v) repeated and consistent failure of Executive to be present
at work during normal business hours unless the absence is because of one or
more of the disabilities specified in Section 4.2;
(vi) willful violation of any express direction or any rule or
regulation established by the Chief Executive Officer or the Board;
(vii) insubordination, gross incompetence or misconduct in the
performance of, or gross neglect of, Executive's duties hereunder not corrected
after notice and a period of fifteen (15) days to cure;
(viii) conduct contrary to the best interests of Company or JG
not corrected after notice and a period of fifteen (15) days to cure;
(ix) illegal possession or use of any controlled substance; or
(x) use of alcohol or other drugs which interferes with the
performance by Executive of his duties.
4.4 Termination without Cause. In the event Executive's employment is
terminated by Company prior to the expiration of the then current term, for any
reason other than Cause or the death or disability of Executive; then Company
shall pay Executive for the remainder of the contract term. Additionally, all
stock options granted to Executive pursuant to Section 3.3 above shall become
immediately vested and exercisable on the date of such termination. Upon making
such payments, Company shall have no further obligation to Executive hereunder.
4.5 Termination Upon a Change in Control. If following a Change in
Control of Company (as defined herein), Executive's employment is terminated
without Cause or Executive is constructively terminated, then Executive shall be
entitled to the following:
(a) a lump sum payment equal to one (1) times the base annual cash
compensation; and
(b) anything to the contrary contained in Section 3.3 above
notwithstanding, all outstanding stock options granted to Executive pursuant to
Section 3.3 shall become immediately vested and exercisable on the date of such
change of control; and
(c) continuation of Executive's benefits pursuant to Section 3.3
for the lesser of one (1) year or such time as Executive receives benefits from
another employer.
(d) Should Executive desire to terminate his employment at his
discretion upon a change of control, he shall be entitled to a lump sum payment
equal to six (6) months base compensation. The above-listed payments only become
effective upon constructive termination upon a change in control. For purposes
of this Agreement, "Constructively Terminated Upon Change in Control" shall mean
the occurrence of any of the following events without Employee's express
consent:
(i) A substantial and adverse change in the Executive's duties,
control, authority, status or position with JG, or the assignment to the
Executive of any duties or responsibilities that are materially inconsistent
with such status or position, or a material reduction in the duties and
responsibilities previously exercised by the Executive, or a loss of title, loss
of office, relocation, loss of significant authority, power or control, or any
removal of him from or any failure to reappoint or reelect him to such
positions, except in connection with his termination of his employment for Cause
or Disability, or as a result of Employee's death;
(ii) Any reduction by Company in Executive's base compensation
unless such reduction shall also apply to similarly situated Executives of
Company and does not exceed ten percent (10%) per year (unless otherwise agreed
in writing by Executive);
(iii) Any material breach by Company of any provision of this
Agreement;
(iv) A material increase in the amount of travel required by
Company of Executive to perform Executive's duties; or
(v) A required relocation by Company of Executive outside of
the Delaware Valley. It is the intention of the parties that the payments under
this Section 4.5 shall not constitute "excess parachute payments" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended.
Accordingly, notwithstanding anything in this Section 4.5 to the contrary, if
any of the amounts otherwise payable under this Section 4.5 would constitute
"excess parachute payments," or if the independent accountants acting as
auditors for Company on the date of the Change in Control determine that such
payments may constitute "excess parachute payments," then the amounts otherwise
payable under this Section 4.5 shall be reduced to the maximum amounts that may
be paid without any such payments constituting, or potentially constituting,
"excess parachute payments." Upon making the payments described in this Section
4.5, Company shall have no further obligation to Executive hereunder. For
purposes hereof, a "Change in Control" of Company shall be deemed to have
occurred if any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of interest in Company results in fifty percent
(50%) or more of the outstanding voting power of the then outstanding voting
securities of Company entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by a party or parties who were
not the beneficial owners of the common stock of Company immediately prior to
such sale or other disposition; provided that a Change in Control will not be
deemed to have occurred if Company conducts an public offering or enters into a
private equity sale and a majority of the board of directors of the resulting
entity consists of individuals who were members of the Board immediately prior
to such transaction.
SECTION 5. RESTRICTIVE COVENANTS
5.1 Confidentiality.
(a) Executive shall not, either during or after his employment with
Company, directly or indirectly use, publish or otherwise disclose or divulge to
any third party any trade secrets, confidential or proprietary information of
Company other than as required by law or in the ordinary course of Company
business (including, without limitation, any such information concerning
customers, clients, candidates, consultants, vendors, services, products,
processes, pricing policies, business plans or records, any technical or
financial information or data, or any information relating to the history or
prospects of Company, JG, any of JG's affiliates, or any of JG's shareholders).
"Confidential" information includes, without limitation, all unpublished
information and all information and data which is not generally known by the
industry.
(b) Executive shall not, either during or after his employment with
Company, directly or indirectly copy, reproduce or remove from Company's
premises, except in the ordinary course of Company business, trade secrets,
confidential or proprietary information of Company or JG (in any medium) or any
Company or JG documents, files or records (including without limitation any
invoices, customer correspondence, business cards, orders, computer records or
software, or mailing, telephone or customer lists). All such documents, files
and records, and all other memoranda, notes, files, records, lists and other
documents made, compiled or otherwise acquired by Executive in the course of his
employment with Company are and shall remain the sole property of Company and
all originals and copies thereof shall be delivered to JG upon termination of
employment for whatever reason. Executive acknowledges a duty of confidentiality
owed to Company and JG and shall not, at any time during or after his employment
by Company, retain in writing, use, divulge, furnish, or make accessible to
anyone, without the express authorization of the Board, any trade secret,
private or confidential information or knowledge of Company or its parent or any
of its parent's affiliates obtained or acquired by him while so employed. All
computer software, computer data, address books, rolodexes, business cards,
telephone lists, customer lists, price lists, contract forms, catalogs, books,
records, and files and know-how acquired while an employee of Company, are
acknowledged to be the property of Company and shall not be duplicated, removed
from Company's possession or made use of other than in pursuit of Company's
business and, upon termination of employment for any reason, Executive shall
deliver to Company, without further demand, all copies thereof which are then in
his possession or under his control.
5.2 Non-Competition and Non-Solicitation.
(a) Executive further agrees that in the event of termination of
this Agreement for any reason whatsoever, he will not, for a period of eighteen
(18) months from the date of such termination (such period not to include any
period(s) of violation or period(s) of time required for litigation to enforce
the covenants herein), either directly or indirectly, on his own account or as
agent, consultant, advisor, stockholder, employer, employee or otherwise in
conjunction with any other person or entity engage in competition in a business
similar to that of JG or be employed by a business in competition with JG
located within a radius of one hundred (100) miles of any office where JG had or
planned to have an office within the preceding year, nor will he solicit
accounts, clients, personnel, consultants, candidates or engage in any other
competitive activities within said area and/or work for business that is similar
and is in competition with JG. Executive further agrees that regardless of
geographic location, he will not, during such time period, service any customers
that JG has done any business with during the preceding year. Executive
acknowledges that doing so in any manner would interfere with, diminish and
otherwise jeopardize and damage the business and goodwill of JG.
(b) Executive further agrees that during the duration of this
agreement and for a period of eighteen (18) months following termination for any
reason, he will not in any way solicit, divert, take away or attempt to solicit,
divert or take away any employee, temporary personnel, consultants, applicants,
clients, customers, trade, business or goodwill from JG or otherwise compete for
accounts or personnel which became known to him through his employment with JG
and agrees not to influence or attempt to influence any of JG's current or
prospective customers, technical personnel, or employees not to do business with
JG.
5.3 Inventions and Improvements. During the term of his employment,
Executive shall promptly communicate to Company all ideas, discoveries and
inventions which are or may be useful to Company or its business. Executive
acknowledges that all ideas, discoveries, inventions, and improvements which are
made, conceived, or reduced to practice by him and every item of knowledge
relating to Company's business interests (including potential business
interests) gained by him during his employment hereunder are the property of
Company, and Executive hereby irrevocably assigns all such ideas, discoveries,
inventions, improvements, and knowledge to Company for its sole use and benefit,
without additional compensation. The provisions of this Section shall apply
whether such ideas, discoveries, inventions, improvements or knowledge are
conceived, made or gained by him alone or with others, whether during or after
usual working hours, whether on or off the job, whether applicable to matters
directly or indirectly related to Company's business interests (including
potential business interests), and whether or not within the specific realm of
his duties. It shall be conclusively presumed that ideas, inventions, and
improvements relating to Company's business interests or potential business
interests conceived during the two (2) years following termination of employment
are, for the purposes of this Agreement, conceived prior to termination of
employment. Executive shall, upon request of Company, but at no expense to
Executive, at any time during or after his employment with Company, sign all
instruments and documents requested by Company and otherwise cooperate with
Company to protect its right to such ideas, discoveries, inventions,
improvements, and knowledge, including applying for, obtaining, and enforcing
patents and copyrights thereon in any and all countries.
5.3 Injunctive and Other Relief.
(a) Executive acknowledges and agrees that the covenants contained
herein are fair and reasonable in light of the consideration paid hereunder, and
that damages alone shall not be an adequate remedy for any breach by Executive
of his covenants contained herein and accordingly expressly agrees that, in
addition to any other remedies which JG may have, JG shall be entitled o
injunctive relief in any court of competent jurisdiction for any breach or
threatened breach of any such covenants by Executive. Nothing contained herein
shall prevent or xxxxx XX or JG from seeking, in any court of competent
jurisdiction, specific performance or other equitable remedies in the event of
any breach or intended breach by Executive of any of its obligations hereunder.
(b) Notwithstanding the equitable relief available to JG or JG, the
Executive, in the event of a breach of his covenants contained in Section 5
hereof, understands and agrees that the uncertainties and delay inherent in the
legal process would result in a continuing breach for some period of time, and
therefore, continuing injury to JG or JG until and unless JG or JG can obtain
such equitable relief. Therefore, in addition to such equitable relief, JG or JG
shall be entitled to monetary damages for any such period of breach until the
termination of such breach, in an amount deemed reasonable to cover all actual
and consequential losses, plus all monies received by Executive as a result of
said breach and all costs and attorneys' fees incurred by JG or JG in enforcing
this Agreement. If Executive should use or reveal to any other person or entity
any confidential information, this will be considered a continuing violation on
a daily basis for so long a period of time as such confidential information is
made use of by Executive or any such other person or entity.
SECTION 6. MISCELLANEOUS
6.1 Severability. The invalidity or unenforceability of any particular
provision or part of any provision of this Agreement shall not affect the other
provisions or parts hereof. If any provision hereof is determined to be invalid
or unenforceable by a court of competent jurisdiction, by reason of the duration
or geographical scope of the covenants contained therein, such duration or
geographical scope, or both, shall be considered to be reduced to a duration or
geographical scope to the extent necessary to cure such invalidity.
6.2 Assignment. This Agreement shall not be assignable by Executive,
and shall be assignable by Company only to any person or entity which may become
a successor in interest (by purchase of assets or stock, or by merger, or
otherwise) to Company in the business or a portion of the business presently
operated by it. Subject to the foregoing, this Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto and each of their respective permitted successors, assigns,
heirs, executors and administrators.
6.3 Notices. All notices hereunder shall be in writing and shall be
sufficiently given if hand-delivered, sent by documented overnight delivery
service or registered or certified mail, postage prepaid, return receipt
requested or by telegram, fax or telecopy (confirmed by U.S. mail), receipt
acknowledged, addressed as set forth below or to such other person and/or at
such other address as may be furnished in writing by any party hereto to the
other. Any such notice shall be deemed to have been given as of the date
received, in the case of personal delivery, or on the date shown on the receipt
or confirmation therefor, in all other cases. Any and all service of process and
any other notice in any such action, suit or proceeding shall be effective
against any party if given as provided in this Agreement; provided that nothing
herein shall be deemed to affect the right of any party to serve process in any
other manner permitted by law.
(a) If to Company:
Judge Technical Services, Inc. & The Judge Group, Inc.
Xxx Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Judge, Jr.
With a copy to:
Drinker Xxxxxx & Xxxxx
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
(b) If to Executive:
Xxxxxx Xxxxxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
6.4 Entire Agreement and Modification. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters
contemplated herein and supersedes all prior agreements and understandings with
respect thereto. Any amendment, modification, or waiver of this Agreement shall
not be effective unless in writing. Neither the failure nor any delay on the
part of any party to exercise any right, remedy, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power, or privilege with respect to any
occurrence be construed as a waiver of any right, remedy, power, or privilege
with respect to any other occurrence.
6.5 Governing Law. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the internal laws of the Commonwealth
of Pennsylvania (and United States federal law, to the extent applicable),
without giving effect to otherwise applicable principles of conflicts of law.
6.6 Headings; Counterparts. The headings of paragraphs in this
Agreement are for convenience only and shall not affect its interpretation. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which, when taken together, shall be deemed
to constitute but one and the same Agreement.
6.7 Further Assurances. Each of the parties hereto shall execute such
further instruments and take such other actions as any other party shall
reasonably request in order to effectuate the purposes of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
THE JUDGE GROUP, INC.
/s/ Xxxxxx X. Judge, Jr.
-----------------------------------------------
Chief Executive Officer , The Judge Group, Inc.
Chairman of the Board of Directors
/s/ Xxxxxx X. Xxxxxxxxxxxx
---------------------------
