EXHIBIT
10.1
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
This Amended and Restated Employment Agreement
(“Agreement”) is made by and between Analysts
International Corporation (the “Company”) with
headquarters at 3601 W. 76 th Street, Minneapolis, MN 55435 and Robert E.
Woods (“Executive”).
RECITALS
WHEREAS, the Company desires to retain Executive
as an employee of the Company, and Executive desires to be so
employed; and
WHEREAS, the Company and Executive previously
executed an Employment Agreement on January 1, 2008, which the
parties wish to restate and amend as set forth herein.
NOW, THEREFORE, in consideration of the mutual
promises and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and Executive hereby agree as
follows:
In consideration for the mutual promises
contained herein, the parties, intending to be legally bound, agree
as follows:
AGREEMENT
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Relation to
Prior Agreement . As this is an Amended and Restated
Agreement, it replaces the prior Employment Agreement between the
parities (dated January 1, 2008) (the “Prior
Agreement”) in its entirety. For the avoidance of
doubt, the parties expressly acknowledge that any and all stock
options granted to Executive in connection with the Prior
Agreement, together with the agreements granting such options,
shall remain in full force and effect notwithstanding execution of
this Amended and Restated Employment Agreement. As
provided in Section 3.4 below, however, the applicable agreement
granting such options to Executive shall be amended as soon as
reasonably practicable after the execution of this Agreement to
reflect the changes reflected in said Section 3.4.
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Commencement
Date . This
Agreement is effective as of January 1, 2008 (the
“Commencement Date”).
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Position . The Company will employ Executive
in the capacity of Senior Vice President, General Counsel and
Secretary, reporting to the Company’s CEO.
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Best
Efforts . During Executive’s employment
by the Company, Executive agrees to devote his full time and best
efforts to the interests of the Company and to refrain from
engaging in other employment or in any activities that may be in
conflict with the best interests of the
Company. Executive agrees to perform his duties to a
level consistent with the highest standards of one holding such
position in similar businesses or enterprises. Executive
agrees not to render services to anyone other than the Company (or
its parent or subsidiaries) for compensation as an employee,
consultant, or otherwise during the term of this
Agreement.
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Personal
Activities . The provisions of Sections 1.2 and
1.3 of this Agreement will not be deemed to prohibit Executive from
devoting reasonable time to personal matters.
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Duration . Subject to the provisions for
termination set forth in Sections 6, 7 and 8 below, the Original
Term of this Agreement (“Original Term”) will commence
upon the 1st day of January, 2008 and will continue to and include
the 31 st
day of October, 2010.
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Extension of
Provisions . At the end of the Original Term,
the provisions of the Agreement will automatically renew for an
additional one (1) year term (“Additional Term”)
commencing November 1, 2010, unless either party gives notice of
nonrenewal at least ninety (90) days before the scheduled
expiration of the term. At the end of any Additional
Term, the provisions of the Agreement will automatically renew for
an Additional Term, unless either party gives notice of non-renewal
at least ninety (90) days before the scheduled expiration of the
term.
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3.
Compensation and
Benefits .
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Salary . For all services rendered by
Executive pursuant to this Agreement, the Company will pay
Executive an annual base salary (“Base Compensation”)
equal to $250,000. Payment will occur at regular payroll
intervals in accordance with the Company’s standard payroll
practices. The Company’s CEO and compensation
committee of the Board or the Board itself will review the
Executive’s compensation annually and, in its sole
discretion, may determine to increase such base salary for the
following year but cannot decrease the annual salary below
$250,000.
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Incentive
Compensation . In addition to Executive’s
Base Compensation, Executive will be eligible to earn additional
cash incentive compensation of between 0% and 70% of Base
Compensation in each year of employment during the Original Term or
any Additional Term (“Incentive
Compensation”). The potential Incentive
Compensation will be determined annually by the Company’s CEO
and compensation committee of the Board and shall be contingent
upon the Company and Executive meeting company and individual
performance objectives (“Performance Objectives”)
determined by the Company’s CEO and the compensation
committee. The Company’s CEO and the compensation
committee will consider Executive’s input in setting the
annual Performance Objectives.
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Long-term
Incentive Compensation . In addition, Executive shall be
eligible to be awarded stock options or restricted shares from the
Company’s stock option and equity incentive plans at the sole
discretion of the compensation committee.
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Stock
Options . On
or about January 1, 2008, Executive was granted options to purchase
250,000 shares of the Company’s common stock with one-quarter
being vested immediately and the remainder vesting on the
anniversary date hereof in even increments over three years from
the date of the grant.
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Such options
shall be incentive stock options to the extent that such options
qualify as incentive stock options as defined in Internal Revenue
Code Section 422. The Company may issue such options
from the plans as it deems appropriate but to the extent possible
shall issue the options as incentive stock options. The
stock option agreement shall provide that in the event of a Change
of Control on or after the effective date of this Agreement, any
options remaining unvested at the time of the Change of Control
shall vest immediately. For purposes of this Section
3.4, “Change of Control” shall have the same meaning as
set forth in Exhibit A. Executive shall sign an option agreement or
agreements containing the terms for the options outlined herein and
such other terms and conditions required of similarly situated
executives by the Company as determined by the Board or the
compensation committee of the Board.
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Deferred
Compensation Plan . Executive will be entitled to
participate in the Company’s Deferred Compensation Plan (the
“Special Executive Retirement Plan” or
“SERP”) at a participation rate of 15% of Base
Compensation.
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Fringe
Benefits . Executive will be entitled to
participate in the Company’s standard benefit programs, on
the same terms as other senior executives of the
Company. Notwithstanding the foregoing, the Company will
also provide Executive the following:
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3.6.1 Medical
Insurance Costs . The Company will provide health
insurance coverage for Executive, Executive’s spouse, and
Executive’s children (up to the maximum age allowed by the
Company’s plan, provided they meet the terms of eligibility
for participation in the plan).
3.6.2 Paid Time
Off . Executive shall be entitled to paid time off
at his discretion and as business conditions warrant. If
necessary due to business conditions of the Company, Executive
agrees to obtain concurrence from the CEO prior to taking the paid
time off.
3.6.3 Paid
Parking . The Company will provide Executive with a
paid indoor, underground parking spot, if available, at the
Company’s office building presently located at 3601 West
76”‘ Street, Minneapolis, Minnesota 55435.
3.6.4 Business
Expenses . Executive will be entitled to
reimbursement of all reasonable, business-related travel and other
expenses incurred by Executive in the ordinary course of business
on behalf of the Company, so long as such expenses are incurred,
documented and authorized pursuant to the Company’s expense
reimbursement policies.
The Company
will keep all Directors and Officers insurance policies and law
department malpractice policies current and identify Executive, if
appropriate, on all such policies.
Executive will
provide his services in the Minneapolis, Minnesota
area. Notwithstanding the foregoing, the parties
recognize and acknowledge that Executive may be required to spend
considerable business time in locations other than the Minneapolis,
Minnesota area.
6.
Termination of Employment by
the Company .
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For
Cause . For
purposes of this Agreement, the Company will have the right to
terminate Executive’s employment for Cause. For
purposes of this Agreement, “Cause” shall
mean:
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6.1.1 Executive’s
substantial failure or neglect, or refusal to perform, the duties
and responsibilities of Executive’s position and/or the
reasonable direction of the CEO;
6.1.2 The commission by
Executive of any willful, intentional or wrongful act that has the
effect of materially injuring the reputation, business or
performance of the Company;
6.1.3 Executive’s
conviction of, or Executive’s guilty or nolo contendere plea
with respect to, any crime punishable as a felony;
6.1.4 Executive’s
conviction of, or Executive’s guilty or nolo contendere plea
with respect to, any crime involving moral turpitude; or
6.1.5 Any bar against
Executive from serving as a director, officer or executive of any
firm the securities of which are publicly-traded.
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For purposes of
this Section 6.1, an act or failure to act by Executive shall not
be “willful” unless it is done, or omitted to be done,
in bad faith and without any reasonable belief that
Executive’s action or omission was in the best interests of
the Company.
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Inability to
Perform . For
purposes of this Agreement, the Company will have the right to
terminate Executive’s employment upon the occurrence of any
of the following events (“Inability to
Perform”):
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6.2.1 Executive becomes
disabled for a period of at least ninety (90) days to the extent
that, in the determination of the CEO, he is no longer able to
report to work and to carry on his duties on behalf of the Company;
or
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Notice . In the event that the CEO
determines that Cause for termination exists, the CEO shall deliver
to Executive written notice that an event of Cause has occurred
after which Executive shall have fifteen (15) days to cure such
event of Cause to the reasonable satisfaction of the
CEO.
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Termination
for Cause/Inability to Perform . The Company may terminate
Executive’s employment at any time for Cause as defined
within this Agreement after giving Executive the notice and
Executive’s failure to cure pursuant to Section 6.3 above and
in any such case will have no further obligation or liability to
Executive. Likewise, if the Company terminates Executive
for Inability to Perform, the Company will have no further
obligation or liability to Executive.
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Termination
Without Cause. Executive’s employment during
the Original Term or any Additional Term may be terminated by the
Company without Cause upon thirty (30) days’
notice. If the Company terminates Executive’s
employment without Cause during the Original Term or during any
Additional Term, Executive will continue to receive Base
Compensation for a period of twelve (12) months, provided that
Executive signs all appropriate paperwork, including providing a
full release of all claims to the Company, in a form acceptable to
the Company. The Company will also reimburse Executive
for medical insurance premium payments made under the Consolidated
Omnibus Reconciliation Act (“COBRA”), for a period of
up to six (6) months following the date of termination, provided
that the Company receives sufficient evidence of proof of such
payments during the COBRA period. For purposes of this
Section 6.5, termination of Executive’s employment due to
nonrenewal of Executive’s employment agreement at the end of
the Original Term or any Additional Term, shall be deemed a
termination without Cause and entitle Executive to the payments and
benefits set forth in this Section 6.5.
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7.
Termination of Employment by
Executive .
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Resignation
for Good Reason . If Executive believes Good Reason
to resign exists, before resigning, he must first give the Company
written notice of the alleged Good Reason and an opportunity to
cure within fifteen (15) days of notice. If Executive
resigns from his employment for Good Reason, he will continue to
receive Base Compensation for a period of twelve (12) months,
provided that Executive signs all appropriate paperwork, including
providing a full release of all claims to the Company, in a form
acceptable to the Company. The Company will also
reimburse Executive for all medical insurance premium payments,
made under COBRA, for a period of up to six (6) months following
the date of resignation for Good Reason, provided that the Company
receives sufficient evidence of proof of such payments during the
COBRA period.
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For purposes of
this Section 7.1, “Good Reason” will mean a good faith
determination by Executive, communicated in writing to the CEO,
that any one or more of the following events has
occurred:
7.1.1 a reduction in
Executive’s Base Salary below $250,000;
7.1.2 a requirement
imposed on Executive that results in Executive being based at a
location that is outside of a fifty (50) mile radius of
Executive’s job location immediately prior to the change in
location;
7.1.3 any material
breach or unilateral and material change in assignment or job
title, but not including a change in Executive’s reporting
structure in the event of a Change in Control.
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Notice . If Executive terminates his
employment for Good Reason, he must provide thirty (30) days’
prior written notice to the Company.
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Resignation
without Good Reason . If Executive resigns from his
employment [or elects not to renew the Agreement upon its
expiration] without Good Reason, the Company will have no further
obligation or liability to Executive.
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8.
Change of Control Obligations;
Deferred Compensation Payments .
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Change of
Control Obligations. In the event of a change in control
in the ownership of the Company, the Company’s and
Executive’s obligations, and Executive’s benefits,
shall be governed by the Change of Control Agreement attached
hereto as Exhibit A. Notwithstanding the foregoing, in
the event of a change in control (as the term “Change of
Control” is defined in Exhibit A), Executive shall have the
additional right at the six (6) month anniversary date after the
Change of Control to resign and receive the payments outlined in
Section 7.1 above, provided that Executive signs all appropriate
paperwork, including providing a full a release of all claims to
the Company in a form acceptable to the Company. To
exercise this right to resign and receive severance, Executive must
give written notice of intent to resign no sooner than four (4)
months after a Change of Control, and no later than five (5) months
after a Change of Control.
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Deferred
Compensation Payments. Deferred compensation covered by
the Company’s deferred compensation plan (Restated SERP) will
be treated and distributed in accordance with terms and conditions
of the Restated SERP.
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Limitation on
Change of Control Severance Payments. For the avoidance
of doubt, Executive acknowledges and agrees that the total amount
of severance payments payable to Executive upon any Change of
Control for lost Base Compensation shall not exceed 100% of his
annual Base Compensation at the time of the Change of
Control
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Notwithstanding
anything to the contrary, to the extent that Executive is a
“key employee” pursuant to the provisions of Section
409A of the Internal Revenue Code as of the d
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