AMENDED AND RESTATED EXECUTIVE
CHANGE OF CONTROL AGREEMENT
This Executive Change of Control Agreement (this
“ Agreement ”), made as of the 31st day
of December, 2004, by and between On Assignment, Inc., a Delaware
corporation (the “ Company ”), and
Peter T. Dameris (the “ Executive
”), is amended and restated as of December 11,
2008.
Recitals
A.
The Executive currently serves as the President and Chief Executive
Officer of the Company. The Company and the Executive are
parties to that certain Senior Executive Agreement dated as of
October 27, 2003 (as amended from time to time, the “
Employment Agreement ”).
B.
Pursuant to the terms of the Employment Agreement and the terms of
the Company’s Change in Control Severance Plan (the “
ASGN Severance Plan ”), the Executive was
entitled to receive certain severance benefits in the event of a
change in control of the Company.
C.
The Board of Directors of the Company (the “
Board ”), has determined that it is in the best
interests of the Company and its stockholders to assure that the
Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change
of Control (as defined herein). The Board believes it is
imperative to diminish the inevitable distraction of the Executive
by virtue of the personal uncertainties and risks created by a
pending or threatened Change of Control and to encourage the
Executive’s full attention and dedication to the current
Company in the event of any threatened or pending Change of
Control, and to provide the Executive with compensation and
benefits arrangements upon a Change of Control that ensure that the
compensation and benefits expectations of the Executive will be
satisfied and that are competitive with those of other
corporations. Therefore, in order to accomplish these
objectives, the Board has caused the Company to modify the ASGN
Severance Plan to eliminate its coverage of the Executive and to
enter into this Agreement.
Agreement
In consideration of the foregoing and the mutual
covenants and promises contained herein, the parties agree as
follows:
1.
Certain Definitions
. Capitalized terms (such as “ Cause
”) not otherwise defined herein shall have the meanings set
forth in the Employment Agreement. In addition to the terms
defined elsewhere herein, the following terms shall have the
respective meanings set forth below:
(a)
“ Accrued Compensation ” means an amount
including all amounts earned or accrued through the termination
date but not paid as of the termination date including
(i) Base Salary, (ii) reimbursement for reasonable and
necessary expenses incurred by you on behalf of the Company during
the period ending on the termination date, (iii) vacation and sick
leave pay (to the extent provided by Company policy or applicable
law), and (iv) incentive compensation (if any) earned in respect of
any period ended prior to the termination date. It is
expressly understood that incentive compensation shall have been
“earned” as of the time that the conditions to such
incentive compensation have been met, even if not calculated or
payable at such time.
(b)
“ Affiliated Company ” means any company
controlled by, controlling or under common control with the
Company.
(c)
“ Base Salary ” means the
Executive’s Annual Base Salary (as defined in
Section 1(b)(i) of the Employment Agreement) at the
rate in effect during the last regularly scheduled payroll period
immediately preceding the occurrence of the Change in Control and
does not include, for example, bonuses, overtime compensation,
incentive pay, fringe benefits, sales commissions or expense
allowances.
(d)
“ Cause ” has the meaning given to it in
the Employment Agreement.
(e)
“ Change of Control ” shall be deemed to
occur upon the consummation of any of the following
transactions:
(i)
a merger or consolidation in which the Company is not the surviving
entity, except for a transaction the principal purpose of which is
to change the state of the Company’s incorporation or a
transaction in which 50% or more of the surviving entity’s
outstanding voting stock following the transaction is held by
holders who held 50% or more of the Company’s outstanding
voting stock prior to such transaction; or
(ii)
the sale, transfer or other disposition of all or substantially all
of the assets of the Company; or
(iii)
any reverse merger in which the Company is the surviving entity,
but in which 50% or more of the Company’s outstanding voting
stock is transferred to holders different from those who held the
stock immediately prior to such merger; or
(iv)
the acquisition by any person (or entity) directly or indirectly of
50% or more of the combined voting power of the outstanding shares
of Company capital stock; or
(v)
during any period of two (2) consecutive years (not including any
period prior to the date of this Agreement), individuals who at the
beginning of such period constitute the Board (and any new
director, whose election by the Company’s stockholders was
approved by a vote of at least [two-thirds (2/3)] of the directors
then still in office who either were directors at the beginning of
the period or whose election or nomination for election was so
approved), cease for any reason to constitute a majority thereof;
provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for
election by the Company’s stockholders, was approved by a
vote of at least [a majority] of the directors then comprising the
Board on the date hereof (the “ Incumbent Board
”) shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for purposes of this
proviso, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board.
(f)
“ Change of Control Period ” means the
period commencing on the date hereof and ending on the third
anniversary of the date hereof; provided, however, that, commencing
on the date two years after the date hereof, and on each annual
anniversary of such date (such date and each annual anniversary
thereof, the “ Renewal Date ”), the
Change of Control Period shall be automatically extended so as to
terminate two years from such Renewal Date, unless at least 60 days
prior to the Renewal Date, the Company gives notice to the
Executive that the Change of Control Period shall not be
extended.
(g)
“ Date of Termination ” means the date on
which the Executive experiences a Separation from
Service.
(h)
“ Involuntary Termination ” shall mean
the termination of Executive’s employment with the Company
(or, if applicable, successor entity) other than by reason of death
or disability:
(i)
upon Executive’s involuntary discharge or dismissal other
than for Cause,
(ii)
upon Executive’s resignation for Good Reason in accordance
with the terms of Section 1(c)(i)(E) of the Employment
Agreement,
(iii)
upon Executive’s resignation following (A) a reduction in
Executive’s level of Base Salary or any Target Bonus (unless,
in the case of a reduction in any Target Bonus, there is a
corresponding increase in the level of Base Salary such that, in
the aggregate, Executive is no worse off) or (B) a material
reduction in Executive’s benefits, provided and only
if such change or reduction is effected without
Executive’s written concurrence, or
(iv)
upon Executive’s resignation following a change in the
Executive’s position with the Company (or, if applicable,
with the successor entity) that is effected without the
Executive’s consent and that materially reduces his level of
responsibility or authority, other than reductions attributable to
the Company ceasing to be a publicly held company or becoming a
subsidiary or division of another company.
Except as
provided in Section 2(b), for purposes of this Agreement any
determination of “Involuntary Termination” made by the
Company or the Executive shall be made in good faith. Any
dispute regarding same shall be promptly resolved by arbitration in
accordance with the provisions of Sections 8(g)
and (h) below.
(i)
“ Pro Rata Bonus ” means an amount equal
to 100% of the Target Bonus that the Executive would have been
eligible to receive for the Company’s fiscal year in which
the Executive’s employment terminates following a Change of
Control, multiplied by a fraction, the numerator of which is the
number of days in such fiscal year through the Termination Date and
the denominator of which is 365.
(j) “
Separation from Service ” means a
“separation from service” within the meaning of Section
409A(a)(2)(A)(i) of the Code, and Treasury Regulation Section
1.409A-1(h).
(k)
“ Target Bonus ” shall mean the bonus
which would have been paid to the Executive for full achievement of
the Company’s base business plan or budget and/or for the
attainment of specific performance objectives pertaining to the
business of the Company or any of its specific business units or
divisions, or to individual performance criteria applicable to the
Executive or his position, which objectives have been established
by the Board of Directors (or the Compensation Committee thereof)
for the Executive relating to such plan or budget for the year in
question. “ Target Bonus ” shall
not mean the “maximum bonus” which the Executive might
have been paid for overachievement of such plan.
2.
Involuntary Termination of
Employment Following a Change in Control .
(a)
Subject to the terms of this Agreement, the Executive shall be
entitled to receive severance payments from the Company for
services previously rendered to the Company and its Affiliated
Companies if all of the following conditions are met:
(1) a Change of Control occurs during the Change of Control
Period, (2) the Executive’s employment is terminated
under circumstances constituting an Involuntary Termination, and
(3) the Date of Termination occurs during the period
commencing upon such Change of Control and ending on the date that
is six (6) calendar months and ten (10) business days following the
Change of Control. In such event, the severance provisions of
this Agreement shall control and take precedence over any
inconsistent terms of the Employment Agreement (including without
limitation Section 1(c)(iii) ), and the Company
shall, subject to Section 8 below:
(i)
within 30 days after the Date of Termination (or such earlier date
as may be required by applicable law), pay to the Executive the
Executive’s Accrued Compensation and Pro-Rata
Bonus;
(ii)
within 30 days after the Date of Termination (with the exact
payment date to be determined in the sole discretion of the
Company), pay to the Executive the amount equal to the product of
(i) 3.00 and (ii) the sum of (A) the
Executive’s Base Salary and (B) the Executive’s
Target Bonus;
(iii) for
a period of eighteen (18) months after the Date of Termination,
continue to provide the Executive with his car allowance as in
effect immediately prior to the Change of Control, payable in
substantially equal monthly installments commencing on the Date of
Termination, provided, however that if the Executive becomes
reemployed with another employer and is eligible to receive a car
allowance, the Company shall be relieved of its obligation to pay
the Executive’s car allowance;
(iv)
for eighteen (18) months after the Date of Termination, orsuch
longer period as may be provided by the terms of the appropriate
plan, program, practice or policy,
subject to the
Executive’s proper election to continue healthcare coverage
under the Consolidated Omnibus Budget Reconciliation Act of 1985,
as amended (“ COBRA ”), the Company will pay the
Executive’s and/or the Executive’s
family’s COBRA premiums in respect of COBRA benefits to
be provided at the levels being provided to the Executive and/or
the Executive’s family immediately prior to the Change of
Control through third-party insurance maintained by the Company
under the Company’s benefit plans in a manner that causes
such COBRA benefits to be exempt from the application of Section
409A under Treasury Regulation Section 1.409A-1(a)(5);
provided, however , that if the Executive becomes reemployed
with another employer and is eligible to receive medical or other
welfare benefits under another employer provided plan, the benefits
described in this Section 2(a)(iv) shall be secondary to those
provided under such other plan during such applicable period of
eligibility, provided, further , that if during the period
of continuation coverage, any plan pursuant to which such benefits
are to be provided ceases to be exempt from the application of
Section 409A under Treasury Regulation Section 1.409A-1(a)(5), then
an amount equal to each such remaining premium shall thereafter be
paid to the Executive as currently taxable compensation in
substantially equal monthly installments over the remainder of the
continuation coverage period;
(v) within
30 days after the Date of Termination (with the exact payment date
to be determined in the sole discretion of the Company), subject to
Section 8(c) below, pay to the Executive a cash amount equal to the
aggregate premiums that the Company would have paid for basic life
insurance, accidental death and dismemberment insurance and long-
and short-term disability insurance, each as in effect on the Date
of Termination, had the Executive remained employed by the Company
for eighteen (18) months after the Date of Termination;
(vi)
during the eighteen (18) month period immediately following the
Date of Termination, pay to the Executive, in substantially equal
monthly installments, an amount equal to the aggregate contribution
(if any) to the Company’s Deferred Compensation Plan and
other retirement plans that the Company would have made on behalf
of the Executive (including matching contributions) if the
Executive’s employment continued for eighteen (18) months
after the Date of Termination, assuming for this purpose that all
benefits under such retirement plans are fully vested and that the
Executive’s compensation during such eighteen (18) months
were the same as it had been immediately prior to the Change of
Control, (for clarification and avoidance of doubt, the foregoing
provision applies only to amounts contributed by the Company to
Executive’s Deferred Compensation Plan account, such as
amounts contributed by the Company to match the Executive’s
deferral amounts, but does not apply to any amounts deferred by
Executive, the payout of which shall remain subject to and governed
by the terms and conditions of the Deferred Compensation Plan);
and
(vii)
provide the Executive, at the Company’s expense, with
outplacement services reasonably selected by the Executive,
provided, however , that the cost
to the Company shall not exceed $15,000 and such services shall be
provided to Executive no later than the end of the second calendar
year following that in which the Date of Termination
occurs.
(b)
Anything in this Agreement to the contrary notwithstanding, a
termination of employment by the Executive for any reason or for no
reason during the period commencing on the date that is six months
after the date of a Change of Control and ending ten (10) business
days thereafter shall be deemed to be an “Involuntary
Termination” for all purposes of this Agreement.
3.
Termination of Employment
Following a Change of Control for Cause or Other Than in Connection
with an Involuntary Termination . If following a Change
of Control the Executive’s employment is terminated for Cause
or the Executive resigns other than in connection with an
Involuntary Termination or due to the Executive’s death or
disability, this Agreement shall terminate without further
obligations to the Executive and all obligations and rights of the
Executive and the Company shall be governed by the appropriate
operative provisions of the Employment Agreement. The
Executive shall not be deemed to have been te
