Exhibit 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 1, 2001, between THE
JUDGE GROUP, INC. "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. COMPANY believes that Executive
will contribute to the future success of COMPANY, 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. COMPANY 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
COMPANY as its Chief Financial Officer, and, subject to the supervision of the
Chief Executive Officer of COMPANY 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 COMPANY. Executive shall report directly to the
Chief Executive Officer and shall perform his duties for COMPANY 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
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(c) Executive, without the express consent of
Chief Executive Officer, shall have no actual, apparent or implied authority to
pledge the credit of COMPANY; bind COMPANY under any contract, note, mortgage or
other agreement outside the ordinary course of Company's business; release or
discharge any debt due COMPANY; or sell, mortgage, transfer or otherwise dispose
of any assets of COMPANY.
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 $140,000 (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 COMPANY 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 COMPANY, 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.
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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 COMPANY 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 five hunderd dollar ($500) 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.
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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.
In the event of Executive's death, all vested stock options shall be exercisable
by Executive's beneficiaries pursuant to the Judge Group, Inc.'s Stock Option
Agreement.
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
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 COMPANY or its 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 COMPANY not corrected after notice and a period of
fifteen (15) days to cure;
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(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 within one
year of the change of control, 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 termination upon change of
control or constructive termination after 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 COMPANY, 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);
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(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.
Anything in this Agreement to the contrary notwithstanding, in the event it
shall be determined that any payment or distribution by the Company to or for
the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise) would be
subject to the excise tax imposed by Section 4999 of the Code (the "Excise
Tax"), then the benefits payable under this Agreement shall be reduced to the
extent necessary so that no such amounts are subject to the Excise Tax; provided
however, that no such reduction will be made if the Executive would retain a
greater amount by receiving all such amounts and paying the applicable Excise
Tax.
All determinations required to be made under this Section and the
assumptions to be utilized in arriving at such determinations, shall be made by
the Company's certified public accounting firm (the "Accounting Firm"), which
shall provide detailed supporting calculations both to the Company and the
Executive within 10 business days of the receipt of notice from the Executive or
the Company that there will be a payment potentially subject to the excise tax
imposed by Section 4999 of the Code, or such earlier time as is requested by the
Company. All fees and expenses of the Accounting Firm shall be borne solely by
the Company. Any determination by the Accounting Firm shall be binding upon the
Company and the Executive.
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, COMPANY, any of COMPANY's affiliates, or any of
COMPANY'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 (in any
medium) or any Company 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 COMPANY upon termination
of employment for whatever reason. Executive acknowledges a duty of
confidentiality owed to Company and COMPANY 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,
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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 including non-renewal, 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 COMPANY or be employed by a business in competition with
COMPANY located within a radius of one hundred (100) miles of any office where
COMPANY 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 COMPANY. Executive further agrees that
regardless of geographic location, he will not, during such time period, service
any customers that COMPANY 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
COMPANY.
(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
COMPANY or otherwise compete for accounts or personnel which became known to him
through his employment with COMPANY and agrees not to influence or attempt to
influence any of COMPANY's current or prospective customers, technical
personnel, or employees not to do business with COMPANY.
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.
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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 COMPANY may have, COMPANY
shall be entitled to 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 delay COMPANY or COMPANY 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 COMPANY, 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 COMPANY until and unless
COMPANY can obtain such equitable relief. Therefore, in addition to such
equitable relief, COMPANY 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 COMPANY 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.
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(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.
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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.
By:
Xxxxxx X. Judge, Jr.
Chief Executive Officer, The Judge Group, Inc.
Chairman of the Board of Directors
Xxxxxx X. Xxxxxxxxxxxx
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