EXHIBIT 10.43
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made as of November 1, 1986,
between ELS EDUCATION SERVICES, INC., a Delaware corporation formerly known as
Washington Educational Research Associates, Inc. ("Employer") and XXXXX X. XXXXX
("Employee"), with reference to the following facts:
A. Employer and Employee are parties to that certain Employment Agreement dated
as of May 31, 1985, pursuant to which Employee has been employed as the
President and Chief Executive Officer of Employer.
B. AIFS, Inc., as Delaware corporation ("AIFS"), is acquiring all of the issued
and outstanding shares of capital stock of Employer pursuant to the terms of
that certain Stock Purchase Agreement among AIFS, Employer, and certain
stockholders of the Company dated as of October 15, 1986 (the Stock Purchase
Agreement").
C. It is a condition to AIFS's obligations under the Stock Purchase Agreement
that Employee enter into an Employment Agreement with Employer.
D. Employer and Employee desire to amend and restate Employee's existing
employment agreement with Employer, and to satisfy AIFS's condition regarding an
employment agreement with Employee pursuant to the terms of the Stock Purchase
Agreement and, in order to do so, enter into this Amended and Restated
Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing facts and the mutual
covenants and conditions set forth herein, the parties hereto hereby agree as
follows:
1. EMPLOYMENT. Employer hereby employs Employee, and Employee hereby agrees to
serve, as President and Chief Executive Officer of Employer, or in such other
executive position as shall be assigned to Employee by Employer's Board of
Directors. Employee agrees to perform such services as are customary to such
offices and as shall from time to time be assigned to him by the Board of
Directors of Employer. Employer shall also report to the President of AIFS and
Employee shall not be required to relocate outside of Los Angeles County,
California.
2. TERM OF EMPLOYMENT. The employment here under shall be for the period which
shall commence on the date hereof and shall end on September 30, 1991 (the "Term
of Employment"), unless earlier terminated (I) upon the death of Employee, (ii)
at the option of Employer in the event of the inability of Employee to perform
his duties hereunder, whether by
reason of injury (physical or mental), illness or otherwise, incapacitating
Employee for a continuous period exceeding one hundred eighty (180) days, or
(iii) upon the discharge of Employee's failure to execute his sole opinion of
Employer's Board of Directors.
Employer shall give Employee (a) ninety (90) days' prior written notice of a
termination pursuant to clause (ii) of this Section 2 and (b) two (2) year's
prior written notice (or two (2) years compensation, including salary and bonus
payable hereunder, in lieu of notice) of a termination pursuant to clause (iii)
of this Section 2.
3. COMPENSATION.
(a) Salary. As compensation for Employee's services hereunder
commencing on November 1, 1986 and during the Term of Employment, Employer shall
pay Employee and annual salary of One Hundred Fifty-Two Thousand Two Hundred
Fifty-Six Dollars ($152,256.00), which shall be payable in equal installments to
conform with the regular payroll dates for salaried personnel of Employer.
Employee's salary hereunder shall also be subject to increases in accordance
with Employer's executive personnel.
(b) Bonuses. Employer shall pay Employee and annual bonus during the
Term of Employment as follows:
(i) Fifty-Five thousand Dollars ($55,000.00) on the first
(1st) day of August of each of the years 1987 and 1998 for an aggregate annual
bonus of One Hundred Ten Thousand Dollars (110,000.00).
(ii) Each year commencing with AIFS's fiscal year beginning
October 1, 1988, Employee shall participate in AIFS's then current executive
bonus program, which bonus program currently awarded bonuses to certain
executive officers of AIFS as a group not exceeding, in the aggregated,
approximately eleven percent (11%) of the consolidated pretax earnings of AIFS.
Employee's participation in such bonus program shall be determined annually at
such time and in such manner as the determination of other AIFS's executives'
participation in such bonus program, or successor thereto, is made.
(c) Other Benefits. Employee shall be entitled to participate in
benefit programs generally available to its other executive level employees,
including insurance and medical plans, profit sharing and/or 401 (k) plan,
automobile, and vacations, sick leave and holidays, including accruals existing
as of the date hereof of the foregoing. Employer shall also pay Employee's
membership expenses in the Los Angeles Athletic Club and the Marina City Club.
Nothing hereunder shall preclude a reduction of such benefits for all or
substantially all of the employees of Employer or persons in comparable
executive positions with Employer, or AIFS. Employee agrees to reimburse
Employer for Employee's personal use of any automobile furnished by
Employer in accordance with Employer's policies in effect from time to time.
(d) Payment Upon Early Termination.
(i) In the event of voluntary termination of employment by
Employee, Employee or his estate; however, any salary payments earned by not yet
made shall be made by Employer to Employee or this estate at the regularly
scheduled payment dates.
(ii) If Employee's employment hereunder is terminated for any
reason by Employer (other than disability pursuant to Section 2 (ii) hereof or
for reasons of fraud or other high crimes committed by Employee), Employee shall
be entitled to two (2) years' prior written notice or two (2) years compensation
in lieu of notice as provided in Section 2 hereof. Such compensation shall
include Employee's annual salary at the rate then in effect and the bonus
payable under Section 3 (b) hereof, which amounts shall be paid to Employee on
the regularly scheduled payment dates therefor. Such annual bonus shall equal
(i) Fifty-Five Thousand Dollars ($55,000.00) per year if the termination occurs
at any time on or prior to September 30, 1989, or (ii) the same percentage
interest in the AIFS executive bonus program then in effect awarded to Employee
during the year prior to Employee's termination occurs at any time after
September 30, 1989.
(iii) In the event of Employee's death during the term of this
Agreement, Employer shall pay to Employee's estate a lump sum payment equal to
six 96) months' salary payable under Section 3 (a) hereof within ninety (90)
days after the date of Employee's death.
(iv) Upon and after termination of Employee's employment
hereunder or whatever reason, Employees shall be entitled to such benefits to
which he has become entitled under the terms of any plan or program referred to
in this Section 3.
4. REIMBURSEMENT OF EXPENSES. Employee shall be entitled to be reimbursed for
reasonable business related expenses incurred in connection with his services to
Employer pursuant to and during the term of this Agreement in accordance with
Employer's policies then in effect.
5. ASSIGNMENT. This Agreement and the rights and obligations of Employer and
Employee hereunder shall be binding upon the successors and assigns of Employer
and the heirs and representatives of Employee and shall similarly be binding up
and inure to the benefit of any person, firm or corporation, succeeding to the
business of Employer whether by purchase of the stock of Employer or any
affiliate; purchase of all or substantially all of the assets of Employer or an
affiliate; or any merger, consolidation similar combination.
6. GOVERNING LAW; CAPTIONS. This Agreement contains the entire agreement between
the parties with respect to the subject matter of this Agreement and shall be
governed by
the laws of the State of California. It may not be changed orally, but only be
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought. Section headings are for
convenience of reference only and shall not be considered a part of this
Agreement.
7. PRIOR AGREEMENTS. This Agreement supersedes and terminates all prior
agreements between the parties relating to the subject matter herein addressed.
8. NOTICES. Any notices or other communications required or permitted hereunder
shall be in writing and shall be deemed effective when delivered in person or,
if mailed, three (3) days after the date of deposit in the mails, postage
prepaid, in the case of Employee, addressed to him at the address set forth
below, and, in the case of Employer, addressed to it at its offices at 0000
Xxxxxxxxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx, 00000, with a xxx to Xx. Xxxxxx X.
Xxxx, Chairman of the Board, at 0000 Xx Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000,
and Precedent, AIFS, Inc., 0000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, or such other address as shall have been specified in writing by wither
party to the other.
9. COVENANT NOT TO COMPETE. (a) during the Term of Employment and for the
period, if any, thereafter during which Employee receives compensation from
Employer under Section 3 (d) hereof, Employee will not, within any jurisdiction
in which Employer or an affiliate of Employer is duly qualified to do business,
or within any marketing area in which Employer or any affiliate of Employer is
doing a substantial amount of business, directly or indirectly own, manage,
operate, control, be employed by or participate in the ownership, management,
operation or control of, or be connected in any manner with any business of the
type and character engaged in and competitive with that conducted by Employer.
For these purposes, Employee's ownership of securities of a public company not
in excess of 1% of any class of such securities shall not be considered to be
competition with Employer.
(b) It is the desire and intent of the parties that the provisions of
this Section 9 shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. If any particular provisions or portion of this Section 9 shall be
adjudicated to be invalid or unenforceable, this Section 9 shall be deemed
amended to delete therefrom such provision or portion adjudicated to be invalid
or unenforceable, such amendment to apply only with respect to the operation of
this Section 9 in the particular jurisdiction in which such adjudication is
made.
(c) Employee has agreed to the provisions of this Section 9 in
consideration for, among other things, the purchase by AIFS of Employee's common
stock ownership interest in Employer pursuant to that certain Stock Purchase
Agreement dated as of October 15, 1986 among AIFS, Employer, Employee and
certain other stockholders named therein.
10. GUARANTY. By execution of this Agreement, AIFS guarantees performance and
payment by Employer to Employee hereunder, agrees to include Employee in the
AIFS executive bonus program as contemplated hereby, and agrees to make
available to Employee certain other benefits available to employees of AIFS on a
consolidated basis.
IN WITNESS WHEREOF, Employer and Employee have executed this Agreement,
effective as of the day and year first above written.
"Employer" "Employee"
ELS EDUCATIONAL SERVICES, INC.
------------------------------
Xxxxx X. Xxxxx
By: _______________________________
Xxxxx X. Xxxxxxxx,
Executive Vice President Address of Xx. Xxxxx:
and Secretary
000 Xxxxx Xxx
Xxxxxxx Xxxxxxxxx, Xx. 00000
AIFS, Inc.
By: _______________________________
Xxxxx X. Xxxxxxx,
President and Chief Executive Officer
By: _______________________________
Its: Secretary
AMENDMENT NUMBER ONE
TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDEMENT NUMBER ONE TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made
as of October 1, 1988, between ELS EDUCATIONAL SERVICES, INC. a Delaware
corporation (Employer"), and XXXXX X. XXXXX ("Employee"), with reference to the
following facts:
A. Employer and Employee are parties to that certain Amended and
Restated Employment Agreement dated as of November 1, 1986 (the "Employment
Agreement"), pursuant to which Employee has been employed as the President and
Chief Executive Officer of Employer.
B. AIFS, Inc., a Delaware corporation ("AIFS"), the owner of all of the
issued and outstanding shares of capital stock of Employer, has guaranteed
certain obligations of Employer under the Employment Agreement, as well as
providing that Employee is to participate in the AIFS executive bonus program
and making available certain other benefits available to employees of AIFS on a
consolidated basis.
C. Employer, Employee and AIFS desire to amend the Employment Agreement
as set forth herein.
NOW, THEREFORE, in consideration of the foregoing facts and the mutual
covenants and conditions set forth herein, the parties hereto hereby agree as
follows:
1. Section 2 of the Employment Agreement is hereby amended to read in
its entirety as follows:
2. TERM OF EMPLOYMENT. The employment hereunder the
("Term of Employment") shall be continuous from the date of
this Agreement, unless earlier terminated (i) upon the death
of Employee, (ii) at the option of Employer, in the event of
the inability of Employee to perform his duties hereunder,
whether by reason of injury (physical or mental), illness or
otherwise, incapacitating Employee for a continuous period
exceeding one hundred eighty (180) days, (iii) upon the
discharge of Employees for cause, including willful breach of
this Agreement, willful misconduct, gross negligence, fraud,
or other acts involving illegal conduct or moral turpitude ,
(iv) upon voluntary termination by Employee on six (6) months
written notice to Employer, or (v) without cause upon three
(3) years' prior written notice by Employer to Employee.
2. The first sentence of Section 3 (d) (ii) of the Employment Agreement
is hereby
amended to read in its entirety as follows:
"If Employee's employment hereunder is terminated for any reason by
Employer (other than disability pursuant to Section 2 (ii) hereof or for reasons
for fraud or other high crimes committed by Employee), Employee shall be
entitled to three (3) years prior written notice or three (3) years'
compensation in lieu of notice as provided in Section 2 hereof."
3. Effect on Employment Agreement. Except as otherwise specifically set
forth herein, the terms, conditions and provisions of the Employment Agreement
shall continue unmodified and in full force and effect, including without
limitation the obligations of AIFS under Section 10 of the Employment Agreement.
IN WITNESS WHEREOF, the undersigned have executed this AMENDMENT NUMBER
ONE TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT as of the date first above
written.
"Employer" "Employee"
ELS EDUCATIONAL SERVICES, INC.
--------------------------------
Xxxxx X. Xxxxx
By: _____________________________
Xxxxx X. Xxxxxxxx,
Executive Vice President "AIFS"
and Secretary
AIFS, Inc.
By: _______________________________ By: ____________________________
Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxxx,
Vice President and President and Chief Executive
Treasurer Officer
By: ____________________________
Its: Secretary
