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EXHIBIT 10.8
SUPERIOR CONSULTANT HOLDINGS CORPORATION
EMPLOYMENT AGREEMENT
Employment Agreement, between Superior Consultant Holdings Corporation, a
Delaware Corporation ("the company"), 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx,
Xxxxxxxx 00000 and employee (see below). This employment agreement supercedes
any and all prior Employment Agreements and Amendments per the effective date
below.
A. EMPLOYEE NAME: Xxxxxx X. Xxxxxxx ("the employee").
ADDRESS: 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000
B. START DATE: Employment shall commence on June 3, 1985, as stated in the
original employment agreement. Terms of this employment agreement shall be
effective on January 5, 1998.
C. TITLE: Employee's title shall be Senior Vice President and Chief Operating
Officer.
D. SALARY: The bi-weekly salary will be $11,153.85 (prorated for partial
periods), subject to any payroll or other deductions as may be required to be
made pursuant to law, government order, or by written agreement with or consent
of the employee.
E. BONUS: Employee shall be eligible to participate in a discretionary
performance bonus with a total annual bonus opportunity of $110,000.
F. EMPLOYMENT SEPARATION: In the event that Executive's employment is terminated
by the Company for any reason other than gross negligence in the performance of
Employee's material duties and responsibilities, gross misconduct, theft or
embezzlement, or attempted theft or embezzlement, of money or property of the
Company or a subsidiary or an affiliate, the Employee's perpetration or
attempted perpetration of fraud on the Company or a subsidiary or an affiliate,
the Employee's participation in a fraud or attempted fraud on the Company, the
employee shall be entitled to receive all compensation earned and all benefits
vested (under applicable plans) and reimbursements due (pursuant to Company
expense policies) through the effective date of termination and employee shall
be entitled to Separation Payments as defined below in Section G.
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G. SEPARATION PAYMENTS: In the event that Employee's employment is terminated by
the Company for any reason other than gross negligence in the performance of
Employee's material duties and responsibilities, gross misconduct, theft or
embezzlement, or attempted theft or embezzlement, of money or property of the
Company or a subsidiary or an affiliate, the Employee's perpetration or
attempted perpetration of fraud on the Company or a subsidiary or an affiliate,
the Employee's participation in a fraud or attempted fraud on the Company,
Separation Payments shall be made by the Company to Employee as follows:
(a) SALARY CONTINUATION. The Employee's salary, as defined in Section D,
above, shall continue as if the Employee was still employed by the
Company for a period of one (1) year from date of termination.
(b) BONUS. For and with respect to the year of termination, the Company
shall pay the Employee bonus earned, pursuant to Section E above, up
through and including the date of termination under any and all bonus
plans for which he was eligible. In the event of termination and
absent specific written bonus plan provisions to the contrary, bonus
earned shall be determined as a prorata share (based on the number of
days employed during the calendar year) of total bonus opportunity.
(c) STOCK OPTIONS. Stock options granted up to the date of termination
shall vest immediately upon termination, provided that the right to
exercise such vested options shall be at Executive's discretion but in
no event later than the expiration schedule as set forth in the stock
option grant document awarded to employee. However, no new stock
options will be granted after the date of termination, whether the
termination is due to Change of Control or any other reason.
H. CHANGE IN CONTROL:
(a) ACKNOWLEDGMENT. Unless he elects to terminate his employment, the
Employee understands and acknowledges that the Company may be merged
or consolidated with or into another entity and that such entity shall
automatically succeed to the rights and obligations of the Company
hereunder.
(b) NO NOTICE. In any Change in Control situation in which the Employee
has not received written notice at least fifteen (15) business days
prior to the anticipated closing date of the transaction giving rise
to the Change in Control that such successor is willing, as of the
closing, to assume and agree to perform the Company's obligations
under this Agreement, then such Change in Control shall be deemed to
be a termination of employment by the Company and the provisions of
Section G will apply; provided, however, that under such
circumstances, (i) in lieu
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of the Salary Continuation and Bonus, the Company shall pay the
Employee the Change in Control Payment (as that term in hereafter
defined), in one lump sum on or before the closing of the
transaction giving rise to the Change in Control.
(c) NOTICE RECEIVED. In any change in Control situation in which the
Employee has received written notice from the successor to the
Company that such successor is willing to assume the Company's
obligations hereunder, the Employee may nonetheless, at his sole
discretion, elect to terminate employment by providing written
notice to the Company at least five (5) business days prior to the
anticipated closing of the transaction giving rise to the Change in
Control. In such case, the provisions of Section G will apply as
though the Company had terminated Employee's employment; provided,
however, that under such circumstances, (i) in lieu of the Salary
Continuation and Bonus, the Company shall pay the Employee the
Change in Control Payment, in one lump sum on or before the closing
of the transaction giving rise to the Change in Control.
(d) DATE OF TERMINATION. For purposes of applying subparagraphs (a) and
(b) above, the effective date of termination will be the closing
date of the transaction giving rise to the Change in Control and all
compensation, reimbursements and lump-sum payments due the Employee
must be paid in full by the Company at or prior to such closing.
(e) "CHANGE IN CONTROL" DEFINED. A "Change in Control" shall be deemed
to have occurred if:
(i) any person other than the Company or any employee benefit plan
of the Company, acquires directly or indirectly the Beneficial
Ownership (as described in Section 13(d) of the Securities Exchange
Act of 1934, as amended) of any voting security of the Company and
immediately after such acquisition such Person is, directly or
indirectly, the Beneficial Owner of voting securities representing
50% or more of the total voting power of all of the then-outstanding
voting securities of the Company;
(ii) the stockholders of the Company shall approve a merger,
consolidation, recapitalization, or reorganization of the Company, a
reverse stock split of outstanding voting securities, or
consummation of any such transaction if stockholder approval is not
sought or obtained, other than any such transaction which would
result in at least 75% of the total voting power represented by the
voting securities of the surviving entity outstanding immediately
after such transaction being Beneficially Owned by at least 75% of
the holders of outstanding voting securities of the Company
immediately prior to the transaction, with the
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voting power of each continuing holder relative to other such
continuing holders not substantially altered in the transaction; or
(iii) the stockholders of the Company shall approve a plan of
complete liquidation of the Company or an Agreement for the sale or
disposition by the Company of all or substantial portion of the
Company's assets (i.e., 50% or more of the total assets of the
Company.)
(f) NOTICE OF ANTICIPATED CHANGE IN CONTROL. The Employee shall be
notified in writing by the Company at any time that the Company or
any member of its Board anticipates that a Change in Control may
take place.
(g) TAXES, INTEREST OR PENALTIES.
(i) The Employee shall be reimbursed by the Company or its successor
for any exercise taxes and/or interest or penalties that the
Employee incurs under Section 4999 of the Internal Revenue Code of
1986, as amended (or any similar taxes, interest or penalties), as a
result of any Change in Control or the receipt of any amount paid or
payable hereunder. Such amount will be due and payable by the
Company or its successor within (10) days after the Employee
delivers a written request for reimbursement accompanied by a copy
of his tax returns) showing the excise tax actually incurred by the
Employee.
ii) Notwithstanding anything contained herein to the contrary, the
Employee shall have the right to refuse to accept amounts payable
under this Section 5 to the extent that such amounts would subject
the Employee to, or render the Employee liable for, any excise taxes
and/or interests or penalties under Section 4999 of the Internal
Revenue Code of 1986, as amended (or any similar taxes, interest or
penalties).
(h) CHANGE IN CONTROL PAYMENT. As used herein the term "Change in
Control Payment" means an amount equal to two (2) times the full
annual base salary in effect for the year of termination plus two
(2) times the full year's bonus opportunity in effect for the year
of termination.
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