EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS EMPLOYMENT AGREEMENT (the “Agreement”), made as of January 13, 2011, is entered into by STREAM GLOBAL SERVICES, INC., a Delaware corporation, with its headquarters at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the “Company”), and Xxxxx Xxxxxxx (the “Executive”).
The Company desires to employ the Executive, and the Executive desires to be employed by the Company. In consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties agree as follows:
The Executive hereby accepts such employment and agrees to undertake the duties and responsibilities inherent in such positions and such other duties and responsibilities as are commensurate with the titles of Executive Vice President and Chief Operating Officer or other duties as determined by the Chief Executive Officer or the Board of Directors from time to time. The Executive agrees to devote his entire business time, attention and energies to the business and interests of the Company during the Employment Period. The Executive shall report directly to the Chairman and Chief Executive Officer. The Executive agrees to abide by the rules, regulations, instructions, personnel practices and policies of the Company and any changes therein which may be adopted from time to time by the Company.
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Any bonus earned due to the Company’s achievement of such targets shall be paid on a pro rata basis to the Executive for any period of less than a full calendar year that the Executive is employed by the Company at such time as regular MIP Bonus payments are made to other employees so long as the Executive remains employed by the Company at the time of payment.
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the date of grant. Assuming continued employment or as otherwise provided herein, the stock options shall vest over a five (5) year period with a portion vesting every six months for each of the Six Dollar Options and the Four Twenty Five Options, as described in the applicable award agreement.
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responsibilities or services under his Agreement, upon presentation by the Executive of documentation, expense statements, vouchers and/or such other supporting information as the Company may request.
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a termination for Good Reason by the Executive can only occur if (i) the Executive has given the Company a written notice of termination indicating the existence of a condition giving rise to Good Reason and the Company has not cured the condition giving rise to Good Reason within 30 days after receipt of such notice of termination, and (ii) such notice of termination is given within 60 days after the initial occurrence of the condition giving rise to Good Reason and termination for Good Reason occurs within 180 days after such initial occurrence of the condition giving rise to Good Reason:
(a) | a material diminution in Executive’s rate of Base Salary; |
(b) | a material diminution in Executive’s authority, duties, or responsibilities; or |
(c) | a material breach by the Company of this Agreement. |
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(a)(i) If the employment of the Executive terminates (i) pursuant to Section 4.1 by reason of an election by the Company not to extend the Employment Period, (ii) by the Executive for Good Reason pursuant to Section 4.3, (iii) by the Company without Cause pursuant to Section 4.5 the Company shall, subject to the Executive’s compliance with Section 5.2(c) below: (A) pay to the Executive, in equal bi-monthly (twice a month) installments in accordance with its normal payroll practices, over a one year period (the “One Year Continuation Period”), as compensation for the Executive’s loss of employment, an aggregate amount equal to the total of one times the Base Salary in effect at the time of termination; and (B) continue health and dental benefits through COBRA for the Executive and his family at a level commensurate with such benefits at the time of termination for a period of one year following such termination, and the Company shall pay an amount equivalent to the Company portion of health care premiums for the COBRA premiums for such benefits until the earlier of one year after termination or such time as the Executive becomes eligible for substantially similar benefits from another employer, after which time the Executive will be eligible to receive the maximum benefits permitted under COBRA less the number of months paid by the Company to be paid by the Executive.
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(a)(ii) If, within 12 months after a Change in Control that satisfies the requirements of Treas. Reg. § 1.409A-3(i)(5), the employment of the Executive terminates (i) pursuant to Section 4.1 by reason of an election by the Company not to extend the Employment Period, (ii) by the Executive for Good Reason pursuant to Section 4.3, or (iii) by the Company without Cause pursuant to Section 4.5, the Company shall, in lieu of the payments and benefits otherwise to be provided under Section 5.2(a)(i) and subject to the Executive’s compliance with Section 5.2(c) below: (A) pay to the Executive in equal bi-monthly (twice a month) installments in accordance with its normal payroll practices, over an 18 month period (the “Continuation Period”), as compensation for the Executive’s loss of employment, an aggregate amount equal to 1.5 times the Base Salary in effect at the time of termination; (B) provide full vesting with respect to Executive’s then outstanding unvested equity awards and such equity awards or instruments shall remain exercisable by the Executive for the 18 month period following termination (or if earlier, until the expiration of the option), provided that the vesting shall not accelerate the distribution of shares underlying equity awards if such acceleration would trigger taxation under Section 409A(a)(1)(B); and (C) continue health and dental benefits through COBRA for the Executive and his family at a level commensurate with such benefits at the time of termination for an 18 month period following such termination and the Company shall pay the COBRA premiums for such benefits during until the earlier of 18 months after termination or such time as the Executive becomes eligible for substantially similar benefits from another employer, after which time the Executive will be eligible to receive the maximum benefits permitted under COBRA less the number of months paid by the Company to be paid by the Executive.
(b) If the Executive terminates his employment without Good Reason, or his employment is terminated for Cause, the Company will, at the request of the Executive (or his estate), continue the Executive’s and his family’s health and dental benefits commensurate with those in effect upon such termination for up to 18 months or such longer period as may be allowed by law or the applicable plan following such termination, and the Executive (or his estate) shall pay the premiums therefore in accordance with COBRA.
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(c) Executive will be paid the compensation and benefits in Section 5.2(a)(i)(A) and (B) or 5.2(a)(ii)(A) and (C) ratably in accordance with regular payroll cycles of the Company commencing within 90 days following the date on which his employment ends. In order to receive such compensation and benefits, the Executive must execute a separation agreement and release of claims in favor of the Company (on the form to be provided at such time by the Company, the “Release”), and it must become binding no later than 90 days following the date his employment ends. After the Release becomes binding, he will be paid the compensation and benefits ratably in accordance with regular payroll cycles of the Company (starting with the first payroll period that begins after the Release is binding), provided that the 90th day falls in the calendar year following the year in which employment ends, the payments will begin no earlier than the first payroll period of such later calendar year. The first payroll payment will include a makeup payment for the portion of the severance period that elapsed between the date when employment ended and the payroll period in which payments begin. The payments may be delayed by six months, as described in Section 10 of this Agreement.
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(a) For a period of 12 months (or 18 months in the case of a change in control termination) after the termination of the Executive’s employment with the Company, the Executive will not:
(i) as an individual proprietor, partner, stockholder, officer, director, executive, director, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than 1% of the total outstanding stock of any publicly traded company or 5% of any privately held company) and not in any other capacity), engage in any business throughout the world that directly competes with the business engaged in by the Company or any of its subsidiaries at the time of the Executive’s termination; or
(ii) directly or indirectly recruit, solicit or hire any person who is then an employee of the Company.
(b) Executive acknowledges and agrees that the Company’s business is global in nature due to the types of products and services it provides and that it is reasonable for the Company to define the geographic location in the manner set forth above. Executive also acknowledges that the Company is in the business of providing business process outsourcing services that include customer relationship management and other services. Notwithstanding that agreement, if this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in this Section 6 and in Section 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Executive to be reasonable for such purpose. The Executive agrees that any breach of this Section 6 or Section 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief.
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7. Change in Control means an event or occurrence set forth in any one or more of subsections (a) through (d) below, however a Change in Control shall be deemed not to occur for the purposes of this Agreement if there would otherwise be a Change of Control, but the transaction triggering such Change of Control results in the current Chairman and Chief Executive Officer of the Company being appointed as the Chairman and Chief Executive Officer of the surviving company and remaining in that role for at least 12 months following such appointment:
(a) the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership of any capital stock of the Company if, after such acquisition, such Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) 50% or more of either (x) the then-outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (y) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (a) or (d), the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Company (excluding an acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting securities of the Company, unless the Person exercising, converting or exchanging such security acquired such security directly from the Company or an underwriter or agent of the Company), (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (iv) any acquisition of securities of the Company by Ares Management LLP (“Ares”), Providence Equity Partners LLP, or Xxxxx Corporation or any other affiliate who holds greater than 20% of the outstanding equity of the Company and has representative as a member of the Board of Directors just prior to the Change in Control; or any affiliate thereof, including, without limitation, any investment fund, investment partnership,
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investment account or other investment person whose investment manager, investment advisor, managing member or general partner, is related to Ares or Providence Equity partners or Xxxxx Corporation or any member, partner, director, officer or employee of such investment manager, investment advisor, managing member or general partner of Ares, Providence Equity Partners LLP or Xxxxx Corporation or their affiliates or any other affiliate who holds greater than 20% of the outstanding equity of the Company and has a representative as a member of the Board of Directors just prior to the Change in Control.
(b) the consummation of a merger, consolidation, reorganization, recapitalization or statutory share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company in one or a series of transactions (a “Business Combination”), unless, immediately following such Business Combination, all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 35% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors, respectively, of the resulting or acquiring corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, respectively; or
(c) approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.
(a) Executive agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature concerning the Company’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the Company.
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By way of illustration, but not limitation, Proprietary Information may include inventions, products, technologies, web based portals or internet algorithms, processes, methods, techniques, formulas, compositions, compounds, projects, developments, plans, research data, financial data, personnel data, computer programs, and customer and supplier lists. Executive will not disclose any Proprietary Information to others outside the Company or use the same for any unauthorized purposes without written approval by the Chief Executive Officer of the Company, either during or after his employment, unless and until such Proprietary Information has become public knowledge without fault by the Executive, provided, however, that nothing herein shall prevent the Executive from disclosing Proprietary Information to another party, in the ordinary course of business, pursuant to a non-disclosure agreement between the Company and such other party.
(b) Executive agrees that all files, technology, patents, copyrights, letters, memoranda, reports, articles, books, records, data, web-based analyses or reports, sketches, drawings, laboratory notebooks, program listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Executive or others, which shall come into his custody or possession, shall be and are the exclusive property of the Company to be used by the Executive only in the performance of his duties for the Company.
(c) Executive agrees that his obligation not to disclose or use information, know-how and records of the types set forth in paragraphs (a) and (b) above, also extends to such types of information, know-how, records and tangible property of customers of the Company, customers or suppliers to the Company or other third parties who may have disclosed or entrusted the same to the Company or to the Executive in the course of the Company’s business.
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(a) Subject to this Section 10, payments or benefits under Section 5 shall begin only upon the date of a “separation from service” of the Executive (determined as set forth below) which occurs on or after the termination of the Executive’s employment. The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to the Executive under Section 5, as applicable:
(i) It is intended that each installment of the payments and benefits provided under Section 5 shall be treated as a separate “payment” for purposes of Section 409A of the Code and the guidance issued thereunder (“Section 409A”). Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A.
(ii) If, as of the date of the “separation from service” of the Executive from the Company, the Executive is not a “specified employee” (within the meaning of Section 409A), then each installment of the payments and benefits shall be made on the dates and terms set forth in Section 5.
(iii) If, as of the date of the “separation from service” of the Executive from the Company, the Executive is a “specified employee” (within the meaning of Section 409A), then:
(1) Each installment of the payments and benefits due under Section 5 that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the Short-Term Deferral Period (as hereinafter defined) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A. For purposes of his Agreement, the “Short-Term Deferral Period” means the period ending on the later of the 15th day of the third month following the end of the Executive’s tax year in which the separation from service occurs and the 15th day of the third month following the end of the Company’s tax year in which the separation from service occurs; and
(2) Each installment of the payments and benefits due under Section 5 that is not described in Section 10(a)(iii)(1) and that would, absent this subsection, be paid within the six-month period following the “separation from service” of the Executive from the Company shall not be paid until the date that is six months and one day after such separation
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from service (or, if earlier, the Executive’s death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Executive’s separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of payments and benefits if and to the maximum extent that that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executive’s second taxable year following the taxable year in which the separation from service occurs.
(b) The determination of whether and when a separation from service of the Executive from the Company has occurred shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 10, “Company” shall include all persons with whom the Company would be considered a single employer under Section 414(b) and 414(c) of the Code.
(c) All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A. The Company will pay or reimburse business expenses in accordance with its policies but, assuming proper substantiation, no later than the last day of the calendar year following the calendar year in which the relevant expense was incurred. This Section 9(c) will, among other sections, apply to payments and reimbursements of expenses under Sections 3.4, 3.5, 3.6, 3.7, and 5.
(d) The parties agree that if any provision of this Agreement would subject Executive to any additional tax or interest under Section 409A, the parties will cooperate to reform such provision and that the Company may reform any such provision unilaterally, provided, that in the event of any such unilateral reform by the Company, the Company shall (x) maintain, to the
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maximum extent practicable, the original intent of the applicable provision without subjecting Executive to such additional tax or interest and (y) not incur any additional compensation expense as a result of such reformation. Notwithstanding the foregoing, to the extent that this Agreement or any payment or benefit hereunder is determined not to comply with Section 409A, then neither the Company, its Board, nor any of its designees, agents, or employees will be liable to the Executive or any other person for any actions, decisions, or determinations made under the Agreement or for any resulting adverse tax consequences.
15. Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the Commonwealth of Massachusetts.
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17.1 No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
17.2 The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.
17.3 In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
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STREAM GLOBAL SERVICES, INC. | ||||
By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxx | |||
Title: | Chairman & CEO |
EXECUTIVE: | ||||
By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx |
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