AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED
AND RESTATED EMPLOYMENT AGREEMENT (this “ Agreement
”) is entered into as of December 30, 2008, (the
“Effective Date”) by and among Oxford Global Resources,
Inc. (the “ Company ”), On Assignment, Inc.
(“ OA ”) and Michael J. McGowan (“
Executive ”).
RECITALS
A. The Company, OA
and Executive previously entered into an agreement, dated January
3, 2007, pursuant to which Executive is employed as the President
of the Company (the “Prior Agreement”).
B. The
Company, OA and Executive wish to amend and restate the Prior
Agreement to implement changes required under Internal Revenue Code
Section 409A (together with the regulations and official
interpretations thereof, “Section 409A”).
AGREEMENT
1.
Employment Term . Subject to the provisions for
earlier termination hereinafter provided, Executive’s
employment shall continue for a term commencing on the Effective
Date and ending on December 31, 2009 (the “ Initial
Termination Date ”); provided , that this
Agreement shall be automatically extended for one additional year
on the Initial Termination Date and on each subsequent anniversary
of the Initial Termination Date unless either Executive or the
Company elects not to so extend such term by notifying the other
party, in accordance with Section 8 below, of such election not
less than ninety (90) days prior to the Initial Termination Date,
or any anniversary thereof, as applicable (in any case, the “
Employment Period ”).
2.
Position and Duties .
(a)
Position . During the Employment Period,
Executive shall serve as President of the Company and shall perform
such employment duties as are usual and customary for such
position. Executive shall report to the Chief Executive
Officer of OA (currently Peter Dameris). OA shall retain
full direction and control of the means and methods by which
Executive performs the above services. At OA’s
reasonable request, Executive shall serve OA, the Company and/or
their Affiliates in such other offices and capacities in addition
to the foregoing as the Company shall designate, consistent with
Executive’s position, without additional compensation beyond
that specified in this Agreement. For purposes of this
Agreement, “ Affiliate ” shall mean each entity
in any chain of parent entities or subsidiary entities with either
of OA or the Company, as well as each majority-owned entity of any
such parent entity or subsidiary entity, and their respective
successors.
(b)
Place of Employment . During the Employment
Period, Executive shall
perform the
services required by this Agreement at the Company’s
principal offices in Beverly, MA, unless otherwise mutually agreed
upon by the parties. Notwithstanding the foregoing,
Executive may from time to time be required to travel temporarily
to other locations on the Company’s or its Affiliates’
business, as may be reasonably requested.
(c)
Right to Attend Board Meetings . Executive shall
be entitled, during the Employment Period, to attend in-person
meetings of the Board of Directors of OA (the “ Board
”), attend telephonic Board meetings and receive Board
packages, in each case, to the same extent as
other Division Presidents of the Company,
provided , that nothing herein shall or shall be construed
so as to entitle Executive to be elected to serve on the Board or
to participate (beyond being present in person or telephonically,
as applicable) in any such meeting.
(d)
Exclusivity . During the Employment Period,
except for such other activities as the Board’s Compensation
Committee (the “ Committee ”) shall approve in
writing in its sole discretion, Executive shall devote his entire
business time, attention and energies to the business and affairs
of the Company and its Affiliates, to the performance of
Executive’s duties under this Agreement and to the promotion
of the Company’s interests, and shall not (i) accept any
other employment, directorship or consultancy, or (ii) engage,
directly or indirectly, in any other business activity (whether or
not pursued for pecuniary advantage) that is or may be competitive
with, or that might place Executive in a competing position to,
that of the Company or its Affiliates.
3.
Compensation .
(a)
Base Salary . During the Employment Period, the
Company shall pay Executive a base salary (the “ Base
Salary ”), (i) initially set at three hundred and twenty
thousand dollars ($320,000) per year, and (ii) beginning in
calendar year 2008, at no less than three hundred and forty-five
thousand dollars ($345,000) per year, subject thereafter to annual
review and increase (but not decrease) in the sole discretion of
the Committee and payable in accordance with the Company’s
normal payroll procedures applicable to similarly situated
executives of the Company, as in effect from time to
time.
(b)
Annual Bonus . In addition to the Base Salary,
Executive shall be eligible to earn an annual bonus in respect of
each calendar year during the Employment Period beginning in
calendar year 2007, as described below (each, an “ Annual
Bonus ”), subject in each case to Executive’s
continued employment through the date on which annual bonuses are
paid generally to the Company’s senior executives or, if
earlier, March 30 th of
the year immediately following that in which such Annual Bonus is
earned (if March 30 th precedes the date on which annual bonuses are
paid generally to the Company’s senior executives for any
year, then the Annual Bonus for such year shall, to the extent
payable, be paid to Executive as soon as practicable after such
March 30 th
, but in no event later than ninety
(90) days following the Executive’s Date of
Termination). In respect of calendar years during the
Employment Period beginning after 2007, any Annual Bonus shall be
determined by reference to the attainment of objective performance
criteria, which criteria shall be determined by the Committee
within sixty (60) days after the start of the applicable calendar
year. The potential amount of each such subsequent
Annual Bonus shall range from zero to one hundred percent (0
– 100%) of the then-applicable Base Salary, with payouts
structured substantially similar to the 2007 Annual
Bonus
payouts (
e.g. , cliff payout of fifty percent (50%) of Base Salary
upon attainment of target(s) and then incremental payout to one
hundred percent (100%) of Base Salary for above-target performance;
for the avoidance of doubt, the performance criteria and targets
applicable to such subsequent Annual Bonuses may vary from those
applicable to the 2007 Annual Bonus).
(c)
Additional Synergy Incentive Bonus . In addition
to the Base Salary and any Annual Bonuses, during each of the first
two years of the Employment Period, Executive shall be eligible to
earn an additional synergy incentive bonus of up to one hundred
thousand dollars ($100,000) per year (the “
Synergy Bonus ”) in respect of certain synergy savings
relating to the post-Merger integration of OA and the Company, as
follows: (i) the Synergy Bonus shall become payable as to twenty
thousand dollars ($20,000) on each quarterly anniversary of the
Effective Date during the first two (2) years of the Employment
Period, subject to Executive’s continued employment through
each such quarterly anniversary (“ Component A
”), and (ii) if, during the first two (2) years of the
Employment Period, the Company attains synergy performance
objectives established by the Committee, the Synergy Bonus may
become payable with respect to up to an additional twenty thousand
dollars ($20,000) for each such year (“ Component B
”), at such time or times as the Committee shall determine,
subject to Executive’s continued employment through date on
which the Committee determines that Component B has been attained,
which shall be the payment date of such Component
B. Determinations as to whether and when Component B
performance objectives have been attained shall be made in the sole
discretion of the Committee. Provided that the Committee
determines that such Component B performance objectives have been
attained, payment of Component B shall occur as soon as reasonably
practicable following the determination of the Committee, but in no
event more than fifteen (15) days after such determination, with
the exact payment date to be set by the Company in its sole
discretion. No Synergy Bonus shall become payable with respect to
employment beyond the second anniversary of the Effective
Date.
(d)
Stock Option . Subject to approval by the
Committee, as soon as practicable following January 3, 2007, OA
shall grant to Executive a nonqualified option to purchase one
hundred twenty thousand (120,000) shares of OA common stock (the
“ Option ”). The Option shall be
granted to Executive at an exercise price per share equal to one
hundred percent (100%) of the fair market value of a share of OA
common stock on the date of grant, as determined by the
Committee. Subject to Executive’s continued employment
with the Company through each such date, the Option shall vest and
become exercisable with respect to seven thousand, five hundred
(7,500) of the shares subject thereto on each quarterly anniversary
of the date of grant of the Option (the “ Option Grant
Date ”), such that the Option shall be vested and
exercisable with respect to all shares subject thereto (subject to
Executive’s continued employment) on the fourth (4
th ) anniversary of the Option Grant
Date. Consistent with the foregoing, the terms and
conditions of the Option, including the applicable vesting
conditions, shall be set forth in an Option grant agreement to be
entered into by OA and Executive in a form prescribed by OA which
shall evidence the grant of the Option (the “ Option
Agreement ”). The Option shall, subject to the
provisions of this Section 3(d), be governed in all respects by the
terms of the applicable Option Agreement.
(e)
Restricted Stock Units . Subject to approval by
the Committee, as soon as practicable following the January 3,
2007, OA shall grant to Executive sixty thousand (60,000)
restricted stock units (the “ RSUs ”) under the
OA Restated 1987 Stock Option Plan, as amended
and restated
April 7, 2006 (the “ Equity Plan
”). The RSU grant shall vest as to three thousand,
seven hundred and fifty (3,750) RSUs on each quarterly anniversary
of the date of grant of the RSUs (the “ RSU Grant Date
”), subject to Executive’s continued employment with
the Company through each such vesting date, such that all of the
RSUs shall be vested (subject to Executive’s continued
employment) on the fourth (4 th )
anniversary of the RSU Grant Date. Shares of the Company
common stock shall be delivered in respect of RSUs vesting in
accordance with this Section 3(e) on or as soon as practicable
after the applicable vesting date of such RSUs, but in no event
more than fifteen (15) days after such vesting date, with the exact
payment date to be determined by the Company in its sole
discretion. Consistent with the foregoing, the terms and conditions
of the RSUs shall be set forth in a RSU grant agreement to be
entered into by OA and Executive in a form prescribed by OA which
shall evidence the grant of the RSUs (the “RSU
Agreement”). The RSUs shall, subject to the
provisions of this Section 3(e), be governed in all respects by the
terms of the Equity Plan and the applicable RSU
Agreement.
(f)
Benefit Plans . During the Employment Period,
Executive and Executive’s legal dependents shall be eligible
to participate in the welfare benefit plans, policies and programs
(including, if applicable, medical, dental, disability, life and
accidental death insurance plans and programs) maintained by the
Company for its senior executives. In addition,
Executive shall be eligible to participate in such incentive,
savings and retirement plans, policies and programs as are made
available to similarly situated executives of the Company,
provided , that the Company shall have no obligation, in any
case, to adopt, maintain or continue any such plans, policies or
programs.
(g)
Additional Perquisites . In addition to the
compensation and benefits described above in this Section 3, during
the Employment Period, the Company shall pay or reimburse Executive
for actual, properly substantiated expenses incurred by Executive
in connection with (i) the lease or purchase of an automobile, not
to exceed five hundred dollars ($500) per month; (ii) an annual
physical examination, not to exceed one thousand, five hundred
dollars ($1,500) per calendar year; and (iii) tax preparation and
financial planning, not to exceed two thousand, five hundred
dollars ($2,500) per calendar year. On all international
and all transcontinental North American airplane flights, Executive
shall be entitled to fly business class or, if any flight offers
only two classes of service, first class.
(h)
Vacation . During the Employment Period,
Executive shall be entitled to four (4) weeks of paid vacation per
calendar year, pro rated for any service by Executive during any
partial calendar year, provided , that Executive shall not
accrue any vacation time in excess of four (4) weeks (for the
avoidance of doubt, vacation shall stop accruing at four (4) weeks
and accrual shall not re-commence until accrued vacation falls
below four (4) weeks, but up to four (4) weeks of accrued vacation
may be carried forward to any succeeding calendar year).
(i)
Expenses . During the Employment Period,
Executive shall be entitled to receive prompt reimbursement of all
reasonable business expenses incurred by Executive in accordance
with the Company expense reimbursement policy applicable to senior
executives of the Company, as in effect from time to time, provided
that Executive properly substantiates such expenses in accordance
with such policy.
(j)
Insurance and Indemnification . For the period from the
Effective Date
through at
least the tenth (10 th )
anniversary of the Date of Termination, the Company shall maintain
Executive as an insured party on all directors’ and
officers’ insurance maintained by the Company for the benefit
of its directors and officers on at least the same basis as all
other covered individuals and provide Executive with at least the
same corporate indemnification as it provides to its similarly
situated executives.
4.
Termination of Employment .
Either the Company or Executive may terminate
Executive’s employment at any time for any reason or no
reason. The following provisions shall control any such
termination of Executive’s employment.
(a)
Termination by the Company Without Cause . The
Company may terminate Executive’s employment without Cause
(as defined below) at any time during the Employment Period upon
written notice to Executive provided in accordance with Section 8
below. If Executive’s employment is terminated as
provided in this Section 4(a), the Company shall, upon the Date of
Termination, or in the case of obligations described in clause (iv)
below, as such obligations become due to Executive, pay or provide
to Executive, (i) Executive’s earned but unpaid Base Salary
accrued through such Date of Termination, (ii) accrued but unpaid
vacation time
