Employment Agreement - RC Transaction Corp. and Stephen J. Giusto
EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is made as of April 1, 1999,
between Stephen J. Giusto ("Employee") and RC Transaction Corp. (the "Company").
RECITALS
The Company desires to establish its right to the services of Employee in
the capacities described below, on the terms and conditions hereinafter set
forth, and Employee is willing to accept such employment on such terms and
conditions.
AGREEMENT
The parties agree as follows:
1. DUTIES
(a) The Company does hereby hire, engage, and employ Employee as the Chief
Financial Officer and Executive Vice President of Corporate Development of the
Company, and Employee does hereby accept and agree to such hiring, engagement,
and employment. During the Period of Employment (as defined in Section 2),
Employee shall serve the Company in such positions fully, diligently,
competently, and in conformity with the provisions of this Agreement, directives
of the Chief Executive Officer of the Company, and the corporate policies of the
Company as they presently exist, and as such policies may be amended, modified,
changed, or adopted during the Period of Employment, and Employee shall have
duties and authority consistent with Employee's positions as Chief Financial
Officer and Executive Vice President of Corporate Development. If requested by
the Company, Employee shall also serve as a member of the Board and Board
committees without additional compensation.
(b) Throughout the Period of Employment, Employee shall devote his full
time, energy, and skill to the performance of his duties for the Company,
vacations and other leave authorized under this Agreement excepted. The
foregoing notwithstanding, Employee shall be permitted to (i) engage in
charitable and community affairs, (ii) act as a director of any corporations or
organizations outside the Company, not to exceed five (5) in number, and receive
compensation therefor, and (iii) to make investments of any character in any
business or businesses and to manage such investments (but not be involved in
the day-to-day operations of any such business); provided, in each case, and in
the aggregate, that such activities do not interfere with the performance of
Employee's duties hereunder or conflict with the provisions of Sections 12 and
13.
(c) Employee shall exercise due diligence and care in the performance of
his duties for and the fulfillment of his obligations to the Company under this
Agreement.
(d) During the Period of Employment, the Company shall furnish Employee
with office, secretarial and other facilities and services as are reasonably
necessary or appropriate for
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the performance of Employee's duties hereunder and consistent with his
positions as the Chief Financial Officer and Executive Vice President of
Corporate Development of the Company.
(e) Employee hereby represents to the Company that the execution and
delivery of this Agreement by Employee and the Company and the performance by
Employee of Employee's duties hereunder shall not constitute a breach of, or
otherwise contravene, the terms of any employment or other agreement or policy
to which Employee is a party or otherwise bound.
2. PERIOD OF EMPLOYMENT
The "Period of Employment" shall, unless sooner terminated as provided
herein, be three (3) years commencing on April 1, 1999 (the "Effective Date")
and ending with the close of business on March 31, 2002. Notwithstanding the
preceding sentence, commencing with April 1, 2002 and on each April 1 thereafter
(each an "Extension Date"), the Period of Employment shall be automatically
extended for an additional one (1)-year period, unless the Company or Employee
provides the other party hereto sixty (60) days' prior written notice before the
next scheduled Extension Date that the Period of Employment shall not be so
extended (the "Non-Extension Notice"). The term "Period of Employment" shall
include any extension that becomes applicable pursuant to the preceding
sentence.
3. COMPENSATION
(a) BASE SALARY. During the Period of Employment, the Company shall pay
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Employee, and Employee agrees to accept from the Company, in payment
for his services, a base salary of two hundred fifty thousand dollars ($250,000)
per year ("Base Salary"), payable in equal bi-weekly installments or at such
other time or times as Employee and the Company shall agree. The Chief Executive
Officer shall consider not less frequently than annually upward adjustment to
Employee's Base Salary. The determination of whether Employee's Base Salary will
be upwardly adjusted is within the sole and absolute discretion of the Chief
Executive Officer except as otherwise provided in the Stockholders Agreement (as
defined below). The Chief Executive Officer at any time or times may, but shall
have no obligation to, supplement Employee's salary by such bonuses and/or other
special payments and benefits as the Company in its sole and absolute discretion
may determine.
(b) ANNUAL INCENTIVE COMPENSATION. During the Period of Employment,
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Employee shall be entitled to participate in any annual incentive or bonus plan
or plans maintained by the Company for senior management employees of the
Company generally, in accordance with the terms, conditions, and provisions of
each such plan as the same may be changed, amended, or terminated, from time to
time.
(c) EQUITY COMPENSATION. During the Period of Employment, Employee shall be
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entitled to participate in any equity-based plan or arrangement, including, but
not limited to, stock options, stock appreciation rights, restricted stock, or
other equity incentive plans or arrangements maintained by the Company for
senior management employees of the Company generally, in accordance with the
terms, conditions, and provisions of each such plan or arrangement as the same
may be changed, amended, or terminated, from time to time.
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4. BENEFITS
(a) HEALTH AND WELFARE. During the Period of Employment, Employee shall be
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entitled to participate in all health and welfare benefit plans and programs and
all retirement, deferred compensation and similar plans and programs generally
available to all other senior management employees of the Company or to all
employees of the Company as in effect from time to time, subject to any
restrictions specified in such plans and programs.
(b) FRINGE BENEFITS. During the Period of Employment, Employee shall be
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entitled to participate in all fringe benefit plans and programs generally
available to all other senior management employees of the Company or to all
employees of the Company as in effect from time to time, subject to any
restrictions specified in such plans and programs.
(c) VACATION AND OTHER LEAVE. Employee shall be entitled to such amounts of
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paid vacation and other leave, but not less than four (4) weeks vacation per
twelve-month period of employment, as from time to time may be allowed to the
Company's senior management personnel generally, with such vacation to be
scheduled and taken in accordance with the Company's standard vacation policies
applicable to such personnel.
(d) BUSINESS EXPENSES. During the Period of Employment, reasonable business
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expenses incurred by Employee in the performance of Employee's duties hereunder
shall be reimbursed by the Company in accordance with the Company's business
expense reimbursement policies as in effect from time to time.
(e) AUTOMOBILE. To the extent provided to other senior officers or
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executives of the Company, during the Period of Employment, Employee shall be
entitled to receive an automobile allowance or a leased automobile and
reimbursement for expenses associated with the operation and maintenance of such
automobile. The Company will reimburse Employee upon presentation of vouchers
and documentation for any such operational and maintenance expenses which are
consistent with the usual accounting procedures of the Company.
5. PUT AND CALL RIGHTS.
(a) EMPLOYEE'S STOCK. At any time, this Section 5 shall apply to all shares
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of the Company's common stock, par value one cent ($.01) per share, owned by
Employee at that time ("Employee's Stock"). As of the date hereof, forty
thousand (40,000) shares of Employee's Stock ("Employee's Restricted Stock")
consist of shares of the Company's common stock that were issued pursuant to the
Company's 1998 Employee Stock Purchase Plan (the "Stock Purchase Plan") and the
Restricted Stock Agreement between Employee and the Company dated December 14,
1998 (the "Restricted Stock Agreement"). The provisions of this Section 5 apply
to Employee's Stock, including Employee's Restricted Stock, notwithstanding any
provisions of the Stock Purchase Plan or the Restricted Stock Agreement to the
contrary; provided, however, that the Stock Purchase Plan and the Restricted
Stock Agreement shall otherwise continue in full force and effect with respect
to the Employee's Restricted Stock to the extent not inconsistent with the
express language of this Section 5.
(b) EMPLOYEE'S PUT RIGHT. If Employee's employment with the Company ends
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due to termination by the Company without Cause or resignation by Employee with
Good
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Reason prior to a Qualified Public Offering, then Employee may cause the Company
to purchase all or part of Employee's Stock (a "Put"), for a purchase price
equal to Fair Market Value, by giving the Company notice (the "Put Notice") at
any time within one-hundred eighty (180) days after such end of employment. The
Put Notice shall state the number of shares of Employee's Stock with respect to
which he is exercising a Put (the "Put Shares") and the Fair Market Value
thereof in Employee's good faith opinion.
(c) COMPANY'S CALL RIGHT. If Employee's employment with the Company ends
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due to termination by the Company or resignation by Employee prior to a
Qualified Public Offering, then the Company may purchase (i) in the case of
termination by the Company for Cause or Employee's resignation without Good
Reason, all or part of Employee's Stock, for a purchase price equal to (A) the
lesser of Fair Market Value or ten dollars ($10.00) per share with respect to
Unvested Employee's Stock and (B) Fair Market Value with respect to Vested
Employee's Stock; or (ii) in the case of termination by the Company without
Cause or Employee's resignation with Good Reason, all or part of Employee's
Stock, for consideration equal to Fair Market Value; in each case (a "Call") by
giving Employee notice (a "Call Notice") at any time within one-hundred eighty
(180) days after such termination or resignation. The Call Notice shall state
the number of shares of Employee's Stock with respect to which the Company is
exercising a Call (the "Call Shares") and the Fair Market Value thereof in the
Company's good faith opinion.
(d) PUT AND CALL RIGHTS UPON DEATH OR DISABILITY. Upon any termination of
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the Period of Employment and Employee's employment hereunder by reason of
Employee's death or Permanent Disability, Employee or his estate shall have a
Put right to cause the Company to purchase, and the Company shall have a Call
right to purchase from Employee or his estate, all or part of such shares of
Employee's Stock that have not been purchased by the Company or the Initial
Founders (as defined in the Stockholders Agreement dated as of the date hereof,
among the Company, Employee and certain other stockholders of the Company (the
"Stockholders Agreement")) pursuant to Section 3.3 of the Stockholders
Agreement, for consideration equal to Fair Market Value, in each case by giving
notice to the other party invoking this paragraph (d) (which notice shall be
considered a Put Notice or Call Notice, as the case may be, for the purposes of
this Agreement) within thirty (30) days after the date of the Transfer Notice
(as defined in the Stockholders Agreement).
(e) FAIR MARKET VALUE. "Fair Market Value" means the fair market value,
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without minority discount, per share of the Company's common stock on the date
of the Put Notice or the Call Notice, as the case may be, determined as follows:
(i) first, Employee and the Company shall attempt in good faith to agree
promptly upon the Fair Market Value; (ii) second, if Employee and the Company do
not agree upon the Fair Market Value within ten (10) days after the Put Notice
or the Call Notice, as the case may be, then Employee and the Company shall
agree upon an independent appraiser to determine the Fair Market Value; and
(iii) third, if Employee and the Company do not agree upon an independent
appraiser within twenty (20) days after the Put Notice or the Call Notice, as
the case may be, then Employee and the Company each shall promptly appoint one
independent appraiser, and such appraisers shall promptly appoint a third
independent appraiser, whereupon such third independent appraiser shall promptly
make its independent determination of the fair market value of the Company's
Common Stock, which determination shall be deemed the Fair Market Value;
provided,
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however, that if the Company's common stock is listed and actively trading on
the New York Stock Exchange, the American Stock Exchange or the National Market
System of the Nasdaq Stock Market, then the Fair Market Value shall equal the
average closing price of the Company's common stock on such market during the
twenty (20) trading days prior to the date of the Put Notice or the Call Notice,
as the case may be. The fees of any appraiser pursuant to subsection (e)(ii)
shall be borne by the Company. The fees of each appraiser appointed by a party
pursuant to subsection (e)(iii) shall be borne by the party that appointed such
appraiser, and the fees of the third appraiser pursuant to subsection (e)(iii)
shall be borne by the Company.
(f) PURCHASE. The closing of a Put or a Call, as the case may be, shall
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take place no later than fifteen (15) days after the determination of Fair
Market Value under subsection (e) above (the "Closing"). At the Closing, the
Company shall purchase from Employee, and Employee shall sell to the Company,
the Put Shares or the Call Shares, as the case may be, and the Company shall pay
to Employee in cash the purchase price specified above.
(g) VESTING OF EMPLOYEE'S STOCK. Employee's Stock shall be deemed to be
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vested ("Vested Employee's Stock") as follows: (i) one-third (1/3) of the shares
of Employee's Stock owned by Employee as of the date hereof shall be deemed
vested as of the date hereof; (ii) an additional one-sixth (1/6) of the shares
of Employee's Stock owned by Employee as of the date hereof shall be deemed
vested as of each of the next four anniversaries of the date of this Agreement;
and (iii) all shares of Employee's Stock acquired by Employee after the date
hereof shall thereupon be deemed fully vested for all purposes of this Agreement
(unless such shares are restricted stock acquired under the Restricted Stock
Plan or any similar plan, in which case such shares shall be subject to the
vesting and other terms and conditions of the Restricted Stock Plan or other
such plan, notwithstanding this clause (iii)). "Unvested Employee's Stock" means
such shares of Employee's Stock that are not deemed vested under this subsection
(g). The terms "vested" and "unvested" solely relate to the determination of the
purchase price for Call Shares in the event of a Call by the Company due to the
Company's termination of Employee's employment for Cause or Employee's
resignation without Good Reason, and shall not be construed to limit any
ownership, voting or other rights of Employee with respect to any Employee's
Stock.
(h) QUALIFIED PUBLIC OFFERING. As used in this Section 5, "Qualified Public
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Offering" means the sale, in an underwritten public offering, registered under
the Securities Act of 1933, of shares of the Company's common stock, (A)
immediately after which the number of shares of common stock then publicly held
constitute at least twenty percent (20%) of the outstanding shares of common
stock, on a fully diluted basis, and (B) which results in cash proceeds to the
Company and/or its shareholders which, when aggregated with any cash proceeds
paid to the Company and/or its shareholders in connection with any prior
underwritten registered public offerings of the Company's common stock, equals
or exceeds twenty-five million dollars ($25,000,000).
(i) RESTRICTION ON PUT AND CALL RIGHTS. Notwithstanding any other provision
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of this Agreement, if it is not possible for the Company to pay, in accordance
with paragraph (f) above, the required cash consideration for any shares of
Employee's Stock with respect to which Employee or the Company has attempted to
exercise a Put or Call, as the case may be, without such payment constituting a
default or an event of default or causing a
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mandatory prepayment requirement under the terms of any agreement for
indebtedness of the Company or any of its subsidiaries to which the Company or
any of its subsidiaries is a party, then Employee or the Company shall not have
the right to exercise such Put or Call, as the case may be, with respect to such
shares; provided, however, that if there are any such shares in the event of a
Put, then Employee or his estate shall have the right to sell or otherwise
dispose of such shares to a third party (the "Third Party Buyer") upon such
terms as may be agreed upon by Employee or his estate and the Third Party Buyer,
subject to the following procedure:
(i) Employee or his estate shall give each Evercore Stockholder (as
such term is defined in the Stockholders Agreement) and the Initial
Founders (collectively, the "Associated Buyers") written notice (the
"Sale Notice") setting forth the name of the Third Party Buyer, the
terms (including a description of the cash or other type of
consideration to be paid) agreed upon by Employee or his estate and
the Third Party Buyer (the "Sale Terms"), the number of shares of
Employee's Stock to be sold (the "Sale Shares"), and the purchase
price per share agreed upon by Employee or his estate and the Third
Party Buyer (the "Sale Price").
(ii) Within thirty (30) days after the Sale Notice, an Associated
Buyer shall have the right, by giving Employee or his estate written
notice (the "Exercise Notice") invoking its rights under this
subsection 5(j), to purchase, for the Sale Price and in accordance
with the Sale Terms, a number of the Sale Shares equal to (A) a
fraction, the numerator of which is the number of shares of the
Company's common stock then owned of record by such Associated Buyer
and the denominator of which is the aggregate number of shares then
owned of record by the Associated Buyers, multiplied by (B) the number
of Sale Shares. Any Sale Shares that an Associated Buyer would be
entitled to purchase under this subsection 5(j) but for which such
Associated Buyer did not give an Exercise Notice within such thirty
(30)-day period may be purchased by the remaining Associated Buyers
(by giving Employee or his estate supplemental written notice within
thirty-five (35) days of the Sale Notice) in such proportion as each
such Associated Buyer's then current record ownership of the Company's
common stock bears to the aggregate record ownership of the Company's
common stock by all such remaining Associated Buyers.
(iii) If the Associated Buyers elect to purchase all of the Sale
Shares in accordance with this subsection 5(j), then such purchase
shall be consummated at the Sale Price and upon the Sale Terms within
sixty (60) days after the Sale Notice. If the Associated Buyers do
not elect to purchase all of the Sale Shares in accordance with this
subsection 5(j), then Employee or his estate may transfer the Sale
Shares to the Third Party Buyer, provided such transfer is for the
Sale Price and in accordance with the Sale Terms.
6. DEATH OR DISABILITY
(a) DEFINITION OF PERMANENTLY DISABLED AND PERMANENT DISABILITY. For
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purposes of this Agreement, the terms "Permanently Disabled" and "Permanent
Disability" shall mean Employee's inability, because of physical or mental
illness
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or injury, to perform substantially all of his customary duties pursuant
to this Agreement, and the continuation of such disabled condition for a period
of ninety (90) continuous days, or for not less than one hundred eighty (180)
days during any continuous twenty-four (24) month period. Whether Employee is
Permanently Disabled shall be certified to the Company by a Qualified Physician
(as hereinafter defined). The determination of the individual Qualified
Physician shall be binding and conclusive for all purposes. As used herein, the
term "Qualified Physician" shall mean any medical doctor who is licensed to
practice medicine in the state of Employee's residence. Employee and the Company
may in any instance, and in lieu of a determination by a Qualified Physician,
agree between themselves that Employee is Permanently Disabled. The terms
"Permanent Disability" and "Permanently Disabled" as used herein may have
meanings different from those used in any disability insurance policy or program
maintained by Employee or the Company, and meanings different from the
definitions under any federal, state or local statutes, regulations and/or laws.
(b) VESTING ON DEATH OR DISABILITY. Upon any termination of the Period of
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Employment and Employee's employment hereunder by reason of Employee's death or
Permanent Disability, as defined in Section 6(a) ("Death or Disability -
Definition of Permanently Disabled and Permanent Disability"), any remaining
Unvested Employee's Stock shall thereupon automatically be deemed Vested
Employee's Stock, notwithstanding any other provision of this Agreement.
(c) TERMINATION DUE TO DEATH OR DISABILITY. If Employee dies or becomes
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Permanently Disabled during the Period of Employment, the Period of Employment
and Employee's employment shall automatically cease and terminate as of the date
of Employee's death or the date of Permanent Disability (which date shall be
determined by the Qualified Physician or by agreement, under Section 6(a) above,
and referred to as the "Disability Date"), as the case may be. In the event of
the termination of the Period of Employment and Employee's employment hereunder
due to Employee's death or Permanent Disability, Employee or his estate shall be
entitled to receive:
(i) a lump sum cash payment, payable within ten (10) business days
after termination of Employee's employment, equal to the sum of (x) any accrued
but unpaid Base Salary as of the date of Employee's termination of employment
hereunder and (y) any earned but unpaid annual incentive compensation in respect
of the most recently completed fiscal year preceding Employee's termination of
employment hereunder (the "Earned/Unpaid Annual Bonus"); and
(ii) a pro-rated portion of the target annual incentive compensation,
if any, that Employee would have been entitled to receive pursuant to Section
3(b) in respect of the fiscal year in which termination of Employee's employment
occurs, based upon the percentage of such fiscal year that shall have elapsed
through the date of Employee's termination of employment, payable when such
annual incentive would otherwise have been payable had Employee's employment not
terminated; and
(iii) such employee benefits described in Sections 4(a), 4(b) and 4(c)
("Employee Benefits"), if any, as to which Employee may be entitled under the
employee benefit plans and arrangements of the Company.
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Notwithstanding any other provision of this Agreement, following such
termination of Employee's employment due to Employee's death or Permanent
Disability, except as set forth in Sections 6(b) and 6(c) and the Company's
obligations under Section 5, and except for Employee's rights (if any) under the
plans, arrangements and programs referenced in Sections 3(b), 3(c) and 4,
Employee shall have no further rights to any compensation or other benefits
under this Agreement.
In the event Employee's employment is terminated on account of Employee's
Permanent Disability, he shall, so long as his Permanent Disability continues,
remain eligible for all benefits provided under any long-term disability
programs of the Company in effect at the time of such termination, subject to
the terms and conditions of any such programs, as the same may be changed,
modified, or terminated for or with respect to all senior management personnel
of the Company.
7. TERMINATION BY THE COMPANY
(a) TERMINATION FOR CAUSE. The Company may, by providing written notice to
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Employee, terminate the Period of Employment and Employee's employment hereunder
for Cause at any time. The term "Cause" for purpose of this Agreement shall
mean:
(i) Employee's conviction of or entrance of a plea of guilty or nolo
contendere to a felony; or
(ii) fraudulent conduct by Employee in connection with the business
affairs of the Company; or
(iii) theft, embezzlement, or other criminal misappropriation of funds
by Employee from the Company; or
(iv) Employee's continued and substantial failure to perform the
duties hereunder (other than as a result of total or partial
incapacity due to physical illness), which failure is not cured
within thirty (30) days following written notice by the Company
to Employee of such failure; provided, however, that (A) it shall
not be Cause if Employee is making good faith efforts to perform
duties and (B) this provision shall not apply to any qualitative
dissatisfaction by the Company with Employee's performance of his
duties hereunder; or
(v) Employee's continued breach of the provisions of Sections 12 and
13 of this Agreement, which breach is not cured within thirty
(30) days following written notice by the Company to Employee of
such breach.
If Employee's employment is terminated for Cause, the termination shall
take effect on the effective date (pursuant to Section 24 ("Notices")) of
written notice of such termination to Employee.
In the event of the termination of the Period of Employment and Employee's
employment hereunder due to a termination by the Company for Cause, then
Employee shall be
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entitled to receive: (i) a lump sum cash payment, payable within ten (10)
business days after termination of Employee's employment equal to the sum of (A)
accrued but unpaid Base Salary as of the date of termination of Employee's
employment hereunder and (B) any Earned/Unpaid Annual Bonus in respect of the
most recently completed fiscal year preceding termination of Employee's
employment hereunder; and (ii) such Employee Benefits, if any, as to which
Employee may be entitled under the employee benefit plans and arrangements of
the Company.
Notwithstanding any other provision of this Agreement, following such
termination of Employee's employment due to termination by the Company for
Cause, except as set forth in this Section 7(a), and except for Employee's
rights (if any) under the plans, arrangements and programs referenced in
Sections 3(b), 3(c) and 4, Employee shall have no further rights to any
compensation or other benefits under this Agreement.
If the Company attempts to terminate Employee's employment pursuant to this
Section 7(a) and it is ultimately determined that the Company lacked Cause, the
provisions of Section 7(b) ("Termination by the Company-Termination Without
Cause") shall apply and, in addition to any other remedies that Employee may
have, Employee shall be entitled to receive the payments called for by Section
7(b) ("Termination by the Company-Termination Without Cause") with interest on
any past due payments at the rate of eight percent (8%) per year from the date
on which the applicable payment would have been made pursuant to Section 7(b)
plus Employee's costs and expenses (including but not limited to reasonable
attorneys' fees) incurred in connection with such dispute.
(b) TERMINATION WITHOUT CAUSE. The Company may, with or without reason,
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terminate the Period of Employment and Employee's employment hereunder without
Cause at any time, by providing Employee written notice of such termination. In
the event of the termination of the Period of Employment and Employee's
employment hereunder due to a termination by the Company without Cause (other
than due to Employee's death or Permanent Disability), then Employee shall be
entitled to receive:
(i) a lump sum cash payment equal to the sum of (A) any accrued but
unpaid Base Salary as of the date of Employee's termination of employment
hereunder, (B) the Earned/Unpaid Annual Bonus, if any, (C) the target annual
incentive compensation, if any, that Employee would have been entitled to
receive pursuant to Section 3(b) in respect of the fiscal year in which
termination of Employee's employment occurs and (D) an amount equal to the
product of (x) the Employee's then current Base Salary times (y) the greater of
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(I) two (2) or (II) the number of years (including fractions thereof)
remaining in the Period of Employment as of the date of Employee's termination
of employment (determined without regard to Employee's termination of employment
and without regard to any further extensions pursuant to Section 2). The lump
sum cash payment shall be made in two installments with fifty percent (50%) of
the lump sum payable within ten (10) business days after termination of
Employee's employment and, provided Employee is in compliance with Section 12 of
the Agreement ("Non-Competition"), fifty percent (50%) plus interest at a rate
of eight percent (8%) per year from the date of Employee's termination of
employment payable one (1) year after the date of Employee's termination of
employment;
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(ii) such Employee Benefits, if any, as to which Employee may be
entitled under the employee benefit plans and arrangements of the Company; and
(iii) continued participation in the Company's group health insurance
plans at the Company's expense until the earlier of (A) the expiration of the
two (2) years from the effective date of termination or (B) Employee's
eligibility for participation in the group health plan of a subsequent employer
or entity for which Employee provides consulting services;
provided, however, that the amount otherwise payable to Employee pursuant to
Section 7(b)(i)(D) shall be reduced by the amount of any cash severance or
termination benefits paid to Employee under any other severance plan, severance
program or severance arrangement of the Company and its affiliates (but not
reduced by any other payment to Employee whatsoever, including (without
limitation) any payment by the Company or any affiliate of the Company in
consideration of stock or any other property, whether pursuant to Section 5 of
this Agreement or otherwise).
Notwithstanding any other provision of this Agreement, following such
termination of Employee's employment due to termination by the Company without
Cause, except as set forth in this Section 7(b) and the Company's obligations
under Section 5, and except for Employee's rights (if any) under the plans,
arrangements and programs referenced in Sections 3(b), 3(c) and 4, Employee
shall have no further rights to any compensation or other benefits under this
Agreement.
8. TERMINATION BY EMPLOYEE
(a) TERMINATION WITHOUT GOOD REASON. Employee shall have the right to
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terminate the Period of Employment and Employee's employment hereunder at any
time without Good Reason (as defined below) upon thirty (30) days prior written
notice of such termination to the Company. Any such termination by the Employee
without Good Reason shall be treated for all purposes of this Agreement as a
termination by the Company for Cause and the provisions of Section 7(a) shall
apply.
(b) TERMINATION WITH GOOD REASON. The Employee may terminate the Period of
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Employment and resign from employment hereunder for "Good Reason":
(i) if the Company requires Employee to relocate his principal office
to a location outside of Orange County, California, without
Employee's consent; or
(ii) if the Company fails to provide Employee with the compensation
and benefits called for by this Agreement; or
(iii) if the Company substantially diminishes Employee's assignment,
duties, responsibilities, operating authority or reporting
relationship to the Chief Executive Officer from those specified
in Section 1 ("Duties"); or
(iv) for any reason following a Change of Control, provided, however,
that Employee remains employed by the Company for the six (6)
months
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following a Change of Control and notifies the Company in
writing (pursuant to Section 24 ("Notices")) within thirty (30)
days after the expiration of the six-month period following the
Change of Control of his decision to terminate his employment.
In such case, Employee's employment will terminate thirty (30)
days after giving said notice; or
(v) if the Company materially breaches any provision of this
Agreement; or
(vi) if at any time during the term of this Agreement, either (A)
Donald B. Murray, (B) an Initial Founder (as defined in the
Stockholders Agreement), or (C) Brent Longnecker is not the Chief
Executive Officer of the Company reporting directly to the Board,
provided, however, that Employee remains employed by the Company
for the six (6) months following the occurrence of the condition
and notifies the Company in writing (pursuant to Section 24
("Notices")) within thirty (30) days after the expiration of the
six-month period of his decision to terminate his employment. In
such case, Employee's employment will terminate thirty (30) days
after giving said notice; provided, however, that Employee shall
be entitled to only one-half ( 1/2) of any amounts payable under
Section 7(b)(i) ("Termination without Cause") in the event that
Donald B. Murray has ceased to be Chief Executive Officer for any
reason other than the Company's termination of his employment
without Cause or his resignation for Good Reason;
provided, however, that none of the events described in Subsection 8(b)(ii),
8(b)(iii) or 8(b)(v) shall constitute Good Reason unless Employee shall have
notified the Company in writing describing the events which constitute Good
Reason and then only if the Company shall have failed to cure such event within
thirty (30) days after the Company's receipt of such written notice.
Any such termination by Employee for Good Reason shall be treated for all
purposes of this Agreement as a termination by the Company without Cause and the
provisions of Section 7(b) shall apply; provided, however, that if Employee
attempts to resign for Good Reason pursuant to this Section 8(b) and it is
ultimately determined that Good Reason did not exist, Employee shall be deemed
to have resigned from employment without Good Reason and the provisions of
Section 8(a) ("Termination Without Good Reason") and, by reference therein, the
provisions of Section 7(a) ("Termination For Cause"), shall apply.
For purposes of this Agreement, a "Change of Control" shall be deemed to
have occurred upon the occurrence of the following: Evercore Capital Partners
L.P., directly or through its affiliates that are or have become parties to the
Stockholders Agreement, ceases to own at least fifty percent (50%) of the
Company's Voting Securities after giving effect to Section 4.8(a) of the
Stockholders Agreement, (i) as a result of or in connection with any transaction
or event including (without limitation), (A) in connection with a merger or
consolidation involving the Company or a subsidiary of the Company, or (B) the
divestment by the Company or a subsidiary of the Company, by sale, liquidation,
foreclosure or any other means, of all or substantially all of its assets or
business as held or conducted as of the date
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hereof, but (ii) notwithstanding the foregoing clause (i), not solely as a
result of a Qualified Public Offering. "Voting Securities" means securities of
the Company entitled to vote in the election of the Company's directors.
9. EXPIRATION OF PERIOD OF EMPLOYMENT
(a) ELECTION NOT TO EXTEND PERIOD OF EMPLOYMENT. If either party elects not
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to extend the Period of Employment pursuant to Section 2, unless Employee's
employment is earlier terminated pursuant to Sections 6, 7 or 8, termination of
Employee's employment hereunder shall be deemed to occur on the close of
business on the day immediately preceding the anniversary of the next Extension
Date following the delivery of the Non-Extension Notice pursuant to Section 2.
If the Company elects not to extend the Period of Employment, Employee's
termination will be treated for all purposes under this Agreement as a
termination by the Company without Cause under Section 7(b). If Employee elects
not to extend the Period of Employment, Employee's termination will be treated
for all purposes under this Agreement as a termination by Employee without Good
Reason under Section 8(a).
(b) CONTINUED EMPLOYMENT BEYOND EXPIRATION OF PERIOD OF EMPLOYMENT. Unless
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the parties otherwise agree in writing, continuation of Employee's employment
with the Company beyond expiration of the Period of Employment shall be deemed
an employment at will and shall not be deemed to extend any of the provisions of
this Agreement and Employee's employment may thereafter be terminated at will by
either Employee or the Company; provided, however, that the provisions of
Sections 12, 13 and 14 shall survive any termination of this Agreement or
Employee's termination of employment hereunder.
10. BEST EFFORTS
(a) The Company in consultation with Employee and his advisers will use its
best efforts to structure any payment Employee has the right to receive either
directly or indirectly from the Company under this Agreement so as to avoid
characterization of any such payment, either alone or in conjunction with other
payments, as an "excess parachute payment" under Section 280G of the Internal
Revenue Code of 1986, as amended.
(b) Notwithstanding the Company's obligation under Section 10(a), at
Employee's election and sole discretion, Employee may cause any payment(s) from
the Company to be reduced in dollar amount in order to avoid such payment,
either alone or in conjunction with other payments, from being characterized as
an "excess parachute payment" under Section 280G of the Internal Revenue Code of
1986, as amended.
11. MEANS AND EFFECT OF TERMINATION
Any termination of Employee's employment under this Agreement shall be
communicated by written notice of termination from the terminating party to the
other party. The notice of termination shall indicate the specific provision(s)
of this Agreement relied upon in effecting the termination and shall set forth
in reasonable detail the facts and circumstances alleged to provide a basis for
termination, if any such basis is required by the applicable provision(s) of
this Agreement.
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12. NON-COMPETITION
Employee acknowledges and recognizes the highly competitive nature of the
businesses of the Company and its affiliates and accordingly agrees as follows:
(a) During the Period of Employment and, for a period of two (2) years
following the date Employee ceases to be employed by the Company for any reason
(the "Restricted Period"), Employee will not, directly or indirectly, (i) engage
in any business for Employee's own account that competes with the business of
the Company or its affiliates (including, without limitation, businesses which
the Company or its affiliates have specific plans to conduct in the future and
as to which Employee is aware of such planning), (ii) enter the employ of, or
render any services to, any person engaged in any business that competes with
the business of the Company or its affiliates, (iii) acquire a financial
interest in any person engaged in any business that competes with the business
of the Company or its affiliates, directly or indirectly, as an individual,
partner, shareholder, officer, director, principal, agent, trustee or
consultant, or (iv) interfere with business relationships (whether formed before
or after the date of this Agreement) between the Company or any of its
affiliates and customers, suppliers, partners, members or investors of the
Company or its affiliates.
(b) Notwithstanding anything to the contrary in this Agreement, Employee
may, directly or indirectly, own, solely as an investment, securities of any
person engaged in the business of the Company or its affiliates which are
publicly traded on a national or regional stock exchange or on an over-the-
counter market if Employee (i) is not a controlling person of, or a member of a
group which controls, such person and (ii) does not, directly or indirectly, own
five percent (5%) or more of any class of securities of such person.
(c) During the Restricted Period, Employee will not, directly or
indirectly, (i) solicit or encourage any employee of the Company or its
affiliates to leave the employment of the Company or its affiliates, or (ii)
hire any such employee who was employed by the Company or its affiliates as of
the date of Employee's termination of employment with the Company or who left
the employment of the Company or its affiliates within one (1) year prior to or
after the termination of Employee's employment with the Company.
(d) During the Restricted Period, Employee will not, directly or
indirectly, solicit or encourage to cease to work with the Company or its
affiliates any consultant then under contract with the Company or its
affiliates.
(e) It is expressly understood and agreed that although Employee and the
Company consider the restrictions contained in this Section 12 to be reasonable,
if a final judicial determination is made by a court of competent jurisdiction
that the time or territory or any other restriction contained in this Agreement
is an unenforceable restriction against Employee, the provisions of this
Agreement shall not be rendered void but shall be deemed amended to apply as to
such maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable. Alternatively, if any court
of competent jurisdiction finds that any restriction contained in this Agreement
is unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
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13. CONFIDENTIALITY.
Employee will not at any time (whether during or after his employment with
the Company), unless compelled by lawful process, disclose or use for his own
benefit or purposes or the benefit or purposes of any other person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, or other confidential data or
information relating to customers, development programs, costs, marketing,
trading, investment, sales activities, promotion, credit and financial data,
manufacturing processes, financing methods, plans, or the business and affairs
of the Company generally, or of any subsidiary or affiliate of the Company;
provided that the foregoing shall not apply to information which is not unique
--------
to the Company or which is generally known to the industry or the public other
than as a result of Employee's breach of this covenant. Employee agrees that
upon termination of his employment with the Company for any reason, he will
return to the Company immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or therefrom, in any
way relating to the business of the Company and its affiliates, except that he
may retain personal notes, notebooks and diaries that do not contain
confidential information of the type described in the preceding sentence.
Employee further agrees that he will not retain or use for his account at any
time any trade names, trademark or other proprietary business designation used
or owned in connection with the business of the Company or its affiliates.
14. SPECIFIC PERFORMANCE
Employee acknowledges and agrees that the Company's remedies at law for a
breach or threatened breach of any of the provisions of Section 12 or Section 13
would be inadequate and, in recognition of this fact, Employee agrees that, in
the event of such a breach or threatened breach, in addition to any remedies at
law, the Company, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which may
then be available.
15. ASSIGNMENT
This Agreement is personal in its nature and neither of the parties hereto
shall, without the consent of the other, assign or transfer this Agreement or
any rights or obligations hereunder; provided, however, that, in the event of a
merger, consolidation, or transfer or sale of all or substantially all of the
assets of the Company with or to any other individual(s) or entity, this
Agreement shall, subject to the provisions hereof, be binding upon and inure to
the benefit of such successor and such successor shall discharge and perform all
the promises, covenants, duties, and obligations of the Company hereunder.
16. GOVERNING LAW
This Agreement and the legal relations hereby created between the parties
hereto shall be governed by and construed under and in accordance with the
internal laws of the State of California, without regard to conflicts of laws
principles thereof.
17. ENTIRE AGREEMENT
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This Agreement embodies the entire agreement of the parties hereto
respecting the matters within its scope. This Agreement supersedes all prior
agreements of the parties hereto on the subject matter hereof. Any prior
negotiations, correspondence, agreements, proposals, or understandings relating
to the subject matter hereof shall be deemed to be merged into this Agreement
and to the extent inconsistent herewith, such negotiations, correspondence,
agreements, proposals, or understandings shall be deemed to be of no force or
effect. There are no representations, warranties, or agreements, whether express
or implied, or oral or written, with respect to the subject matter hereof,
except as set forth herein.
18. MODIFICATIONS
This Agreement shall not be modified by any oral agreement, either express
or implied, and all modifications hereof shall be in writing and signed by the
parties hereto.
19. WAIVER
Failure to insist upon strict compliance with any of the terms, covenants,
or conditions hereof shall not be deemed a waiver of such term, covenant, or
condition, nor shall any waiver or relinquishment of, or failure to insist upon
strict compliance with, any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time or
times.
20. NUMBER AND GENDER
Where the context requires, the singular shall include the plural, the
plural shall include the singular, and any gender shall include all other
genders.
21. SECTION HEADINGS
The section headings in this Agreement are for the purpose of convenience
only and shall not limit or otherwise affect any of the terms hereof.
22. ATTORNEYS' FEES
Employee and the Company agree that in any dispute resolution proceedings
arising out of this Agreement, the prevailing party shall be entitled to its or
his reasonable attorneys' fees and costs incurred by it or him in connection
with resolution of the dispute in addition to any other relief granted.
23. SEVERABILITY
In the event that a court of competent jurisdiction determines that any
portion of this Agreement is in violation of any statute or public policy, then
only the portions of this Agreement which violate such statute or public policy
shall be stricken, and all portions of this Agreement which do not violate any
statute or public policy shall continue in full force and effect. Furthermore,
any court order striking any portion of this Agreement shall modify the stricken
terms as narrowly as possible to give as much effect as possible to the
intentions of the parties under this Agreement.
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24. NOTICES
All notices under this Agreement shall be in writing and shall be either
personally delivered or mailed postage prepaid, by certified mail, return
receipt requested:
(a) if to the Company:
RC Transaction Corp.
c/o Re:sources Connection LLC
3 Imperial Promenade, Suite 600
Santa Ana, California 92707-5902
Attention: Chief Executive Officer
With copies to:
David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive, Suite 1700
Newport Beach, California 92660
Mario A. Ponce, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue, 26th Floor
New York, New York 10017
Evercore Capital Partners, L.P.
65 East 55th Street
33rd Floor
New York, New York 10022
Attn: David G. Offensend
(b) if to Employee:
Stephen J. Giusto
RC Transaction Corp.
c/o Re:sources Connection LLC
3 Imperial Promenade, Suite 600
Santa Ana, California 92707-5902
With a copy to:
David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive, Suite 1700
Newport Beach, California 92660
Notice shall be effective when personally delivered, or five (5) business days
after being so mailed.
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25. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument.
26. WITHHOLDING TAXES
The Company may withhold from any amounts payable under this Agreement such
federal, state and local taxes as may be required to be withheld pursuant to any
applicable law or regulation.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company and Employee have executed this Employment
Agreement as of the date first above written.
THE COMPANY:
By: /s/ Donald B. Murray
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Name: Donald B. Murray
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Title: President
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EMPLOYEE:
/s/ Stephen J. Giusto
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Stephen J. Giusto
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