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Exhibit 10.8
THIS AGREEMENT dated as of ______, 1997, between CorporateFamily
Solutions, Inc., a Tennessee corporation (the "Company"), and ____________
(the "Executive").
The Company's Board of Directors has determined that it is appropriate
to reinforce and encourage the continued attention and dedication of certain
members of the Company's senior management, including the Executive, to their
assigned duties without distraction in potentially disturbing circumstances
arising from the possibility of a change in control of the Company.
This Agreement sets forth the severance compensation which the Company
agrees it will pay to the Executive if the Executive's employment with the
Company terminates under one of the circumstances described herein following a
Change in Control of the Company (as defined herein).
1. TERM. This Agreement shall terminate, except to the extent
that any obligation of the Company hereunder remains unpaid as of such time or
with respect to the Executive's obligations pursuant to Section 7, upon the
earliest of (i) the termination of the Executive's employment with the Company
based on death, Disability (as defined in Section 3(b)), Retirement (as defined
in Section 3(c)), or Cause (as defined in Section 3(d)) or by the Executive
other than for Good Reason (as defined in Section 3(e)); and (ii) one year from
the date of a Change in Control of the Company if the Executive has not
terminated his employment for Good Reason as of such time.
2. CHANGE IN CONTROL. No Compensation shall be payable under this
Agreement unless and until (a) there shall have been a Change in Control of the
Company, while the Executive is still an employee of the Company and (b) the
Executive's employment by the Company thereafter shall have been terminated in
accordance with Section 3. For purposes of this Agreement, a Change in Control
means the happening of any of the following:
(i) any person or entity, including a "group" as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
other than the Company, a wholly-owned subsidiary thereof, any employee
benefit plan of the Company or any of its Subsidiaries becomes the
beneficial owner of the Company's securities having 30% or more of the
combined voting power of the then outstanding securities of the Company
that may be cast for the election of directors of the Company (other
than a result of an issuance of securities initiated by the Company in
the ordinary course of business); or
(ii) as a result of, or in connection with, any cash
tender or exchange offer, merger or other business combination, sale of assets
or contested election, or any combination of the foregoing transactions less
than a majority of the combined voting power of the then outstanding securities
of the Company or any successor corporation or entity entitled to vote
generally in the election of the directors of the Company or such other
corporation or entity after such transaction are held in the aggregate by the
holders of the Company's securities entitled to vote generally in the election
of directors of the Company immediately prior to such transaction; or
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(iii) during any period of two consecutive years,
individuals who at the beginning of any such period constitute the
Board cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election by the
Company's shareholders, of each director of the Company first elected
during such period was approved by a vote of at least two-thirds of the
directors of the Company then still in office who were directors of the
Company at the beginning of any such period.
3. TERMINATION FOLLOWING CHANGE IN CONTROL. (a) If a Change in
Control of the Company shall have occurred while the Executive is still an
employee of the Company, the Executive shall be entitled to the compensation
provided in Section 4 upon the subsequent termination of the Executive's
employment with the Company by the Executive or by the Company unless such
termination is as a result of (i) the Executive's death; (ii) the Executive's
Disability (as defined in Section (3)(b) below); (iii) the Executive's
Retirement (as defined in Section 3(c) below); (iv) the Executive termination
by the Company for Cause (as defined in Section 3(d) below); or (v) the
Executive's decision to terminate employment other than for Good Reason (as
defined in Section 3(e) below).
(b) DISABILITY. If, as a result of the Executive's
incapacity due to physical or metal illness, the Executive shall have been
absent form his duties with the Company on a full-time basis for six months and
within 30 days after written notice of termination is thereafter given by the
Company the Executive shall not have returned to the full-time performance of
the Executive's duties, the Company may terminate this Agreement for
"Disability."
(c) RETIREMENT. The term "Retirement" as used in this
Agreement shall mean termination by the Company or the Executive of the
Executive's employment based on the Executive's having reached age 65 or such
other age as shall have been fixed in any arrangement established with the
Executive's consent with respect to the Executive.
(d) CAUSE. The Company may terminate the Executive's
employment for Cause. For purposes of this Agreement only, the Company shall
have "Cause" to terminate the Executive's employment hereunder only on the
basis of fraud, misappropriation or embezzlement on the part of the Executive.
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than three-quarters of the membership of the Company's Board of Directors
(excluding the Executive) at a meeting of the Board called and held for the
purpose (after reasonable notice to the Executive and an opportunity for the
Executive, together with the Executive's counsel, to be heard before the
Board), finding that in the good faith opinion of the Board the Executive was
guilty of conduct set forth in the second sentence of this Section 3(d) and
specifying the particulars thereof in detail.
(e) GOOD REASON. The Executive may terminate the
Executive's employment for Good Reason at any time during the term of this
Agreement. For purposes of this Agreement "Good Reason" shall mean any of the
following (without the Executive's express written consent):
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(i) the assignment to the Executive by the Company of
duties inconsistent with the Executive's position, duties,
responsibilities and status with the Company immediately prior to a
Change in Control of the Company, or a change in the Executive's
titles or offices as in effect immediately prior to a Change in
Control of the Company, or any removal of the Executive from or any
failure to reelect the Executive to any of such positions, except in
connection with the termination of him employment for Disability,
Retirement or Cause or as a result of the Executive's death or by the
Executive other than for Good Reason;
(ii) a reduction by the Company in the Executive's base
salary as in effect on the date hereof or as the same may be
increased from time to time during the term of this Agreement;
(iii) a relocation of the Company's principal executive
offices to a location outside of Nashville, Tennessee, or the
Executive's relocation to any place other than the location at
which the Executive performed the Executive's duties prior to a Change
in Control of the Company, except for required travel by the Executive
on the Company's business to any extent substantially consistent with
the Executive's business travel obligations at the time of a Change in
Control of the Company;
(iv) any material breach by the Company of any provision of
this Agreement;
(v) any failure by the Company to obtain the assumption of
this Agreement by any successor or assign of the Company; or
(vi) any purported termination of the Executive's employment
which is not effected pursuant to a Notice of Termination satisfying the
requirements of Section 3(f), and for purposes of this Agreement, no such
purported termination shall be effective.
(f) NOTICE OF TERMINATION. Any termination by the Company
pursuant to Section 3(b), 3(c) or 3(d) shall be communicated by a Notice of
Termination. For purposes of this Agreement, a "Notice of Termination" shall
mean a written notice which shall indicate those specific termination
provisions in this Agreement relied upon and which sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of the Executive's employment under the provision so indicated. For purposes
of this Agreement, no such purported termination by the Company shall be
effective without such Notice of Termination.
(g) DATE OF TERMINATION. "Date of Termination" shall mean (a) if
this Agreement is terminated by the Company for Disability, 30 days after
Notice of Termination is given to the Executive (provided that the Executive
shall not have returned to the performance of the Executive's duties on a
full-time basis during such 30-day period) or (b) if the Executive's employment
is terminated by the Company for any other reason, the date on which a Notice
of Termination is given.
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4. SEVERANCE COMPENSATION UPON TERMINATION OF EMPLOYMENT. If the
Company shall terminate the Executive's employment following a Change in
Control other than pursuant to Section 3(b), 3(c) or 3(d) or is the Executive
shall terminate his employment following a Change in Control for Good Reason,
then the Company shall pay to the Executive as severance pay in a lump sum, in
cash, on the fifth day following the Date of Termination, an amount equal to
the sum of two times the Executive's annual base salary at the time of the
Change in Control of the Company; provided, however, that if the lump sum
severance payment under this Section 4, either alone or together with other
payments which the Executive has the right to receive from the Company, would
constitute a "parachute payment" (as defined in Section 28OG of the Internal
Revenue Code of 1986, as amended (the "Code")), such lump sum severance payment
shall be reduced to the largest amount as will result in no portion of the lump
sum severance payment under this Section 4 being subject to the excise tax
imposed by Section 4999 of the Code.
5. NO OBLIGATION TO MITIGATE DAMAGES; NO EFFECT ON OTHER
CONTRACTUAL RIGHTS. (a) The Executive shall not be required to mitigate
damages or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise, nor shall the amount of any payment
provided for under this Agreement be reduced by any compensation earned by the
Executive as the result of employment by another employer after the Date of
Termination, or otherwise.
(b) The provisions of this Agreement, and any payment
provided for hereunder, shall not reduce any amounts otherwise payable, or in
any way diminish the Executive's existing rights, or rights which would accrue
solely as a result of the passage of time, under any benefit plan, incentive
plan or stock option plan, employment agreement or other contract, plan or
arrangement.
6. SUCCESSOR TO THE COMPANY. (a) The Company will require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, by agreement in form and substance satisfactory to the
Executive, expressly, absolutely and unconditionally to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession or assignment had
taken place. Any failure of the Company to obtain such agreement prior to the
effectiveness of any such succession or assignment shall be a material breach
of this Agreement and shall entitle the Executive to terminate the Executive's
employment for Good Reason. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor or assign to its business
and/or assets as aforesaid which executes and delivers the agreement provided
for in this Section 6 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law. If at any time during the
term of this Agreement the Executive is employed by any corporation a majority
of the voting securities of which is then owned by the Company, "Company" as
used in Sections 3, 4, 11 and 12 hereof shall in addition include such
employer. In such event, the Company agrees that is shall pay or shall cause
such employer to pay any amounts owed to the Executive pursuant to Section 4
hereof.
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(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amounts are still payable to him hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
7. COVENANT NOT TO COMPETE. (a) For and in consideration of the
Company's promises contained herein, during the term of this Agreement and for
a period of one (1) year from the date of Termination of the Executive
following a Change in Control the Executive (i) shall not directly or
indirectly engage in any business or activity that competes, directly or
indirectly, with the business in which the Company or any of its affiliates or
successors is engaged on the date hereof or on the date of termination in the
geographic areas of the United States in which the Employee worked or for which
the Employee was responsible during the term of his employment, whether alone,
as a partner, officer, director, employee, consultant, as holder of a
beneficial interest in any such business or activity or by any other means; and
(ii) shall not divert or attempt to divert from the Company or any of its
affiliates any business of any kind in which such entities are engaged, or
induce or attempt to induce any person who is an employee of the Company or any
of its affiliates to leave the employ of any such entity.
(b) The Executive acknowledges that compliance with this
Agreement is necessary to protect the business, goodwill and proprietary
interests of the Company and its affiliates and recognizes that irreparable
injury will result to the Company and its affiliates in the event of a breach
of this Agreement. For the reasons mentioned above, the Executive agrees that
the Company shall be entitled, in addition to any other remedies and damages
available, to an injunction to restrain the violation of the terms of this
Agreement by the Executive, his or her partners, agents, servants, employers,
employees and all persons acting for or with him.
8. NOTICE. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, as follows:
If to the Company:
CorporateFamily Solutions, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: President
If to the Executive:
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or such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
9. MISCELLANEOUS. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement. This Agreement shall be governed by
and construed in accordance with the laws of the State of Tennessee.
10. VALIDITY. The invalidity or unenforceability of any
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
12. LEGAL FEES AND EXPENSES. The Company shall pay all legal fees
and expenses which the Executive may incur as a result of the Company's
contesting the validity, enforceability or the Executive's interpretation of,
or determinations under, this Agreement.
13. CONFIDENTIALITY. During the term of this Agreement and
thereafter, the Executive shall retain in confidence any and all confidential
information known to the Executive concerning the Company and its business so
long as such information is not otherwise publicly disclosed.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
CORPORATEFAMILY SOLUTIONS
By:
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Name:
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Title:
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EXECUTIVE:
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Name:
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