First Amended and Restated
Employment Agreement
This First Amended
and Restated Employment Agreement (the “ Agreement
”) is made as of January 1, 2009, between COMSYS IT
Partners , Inc. , a Delaware corporation (the “
Company ”), and Amy Bobbitt (the “
Executive ”).
|
1.
|
|
BACKGROUND
|
|
|
|
|
|
1.1
|
|
The
Executive is a party to that certain employment agreement with the
Company dated February 14, 2008, and currently holds a senior
executive position with the Company. As a result, the Executive has
significant responsibility for the Company’s management,
profitability and growth. Likewise, the Executive possesses an
intimate knowledge of the Company’s business and affairs,
including its policies, plans, methods, personnel, opportunities,
and challenges.
|
|
|
|
|
|
1.2
|
|
The
Company’s Board of Directors (the “ Board
”), acting through the Compensation Committee, considers the
continued employment of the Executive to be in the best interests
of the Company and its shareholders. The Compensation Committee
desires to structure the Executive’s compensation to
encourage the Executive to remain in service to the Company. This
Agreement is intended to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the “ Code
”), to the extent applicable, and to otherwise meet current
needs. It is the intent of the Company that amounts that constitute
deferred compensation under this Agreement shall not be taxable to
the Executive for income tax purposes until the time actually
received by the Executive.
|
|
|
|
|
|
2.
|
|
DEFINITIONS . For purposes of this Agreement,
the following terms have the meanings set forth below. Other
defined terms have the meanings set forth in the provisions of this
Agreement in which they are used.
|
|
|
|
|
|
2.1
|
|
Base Salary is defined in
Section 4.1.
|
|
|
|
|
|
2.2
|
|
Beneficial Owner
is defined in
Rule 13d-3 of the Exchange Act.
|
|
|
|
|
|
2.3
|
|
Benefit means any Company-provided or
Company-sponsored pension plan, 401k plan, insurance plan, or other
employee benefit plan, program or arrangement made available to the
Company’s employees generally.
|
|
|
|
|
|
2.4
|
|
Bonus Potential
means the annual bonus
amount that will be earned by the Executive under the Company Bonus
Plan if the Company’s EBITDA is 100% of the targeted EBITDA
for the applicable period as set forth on Exhibit B. The
Executive’s standard Bonus Potential is set forth on
Exhibit A, Schedule 1, but the actual Bonus Potential in
any year may be adjusted up or down with the Executive’s
prior written consent.
|
|
|
|
|
|
2.5
|
|
Bonus Potential Earned
means the amount of the
Executive’s Bonus Potential that was earned during the bonus
period in question. The amount earned will be equal to the
percentage of Bonus Potential during the bonus period that
corresponds to actual performance during that period, multiplied by
the Executive’s Bonus Potential. The amount earned will be
prorated for any bonus period the Executive was not employed
by
|
|
|
|
the
Company for the entire bonus period based on the portion of the
bonus period the Executive was employed by the Company. Any such
prorated bonus will be determined at the same time and in the same
manner that bonuses are determined for other participants in the
Company Bonus Plan upon completion of such bonus period and
payments will be made at the time specified in Exhibit B. In
no event will any portion of the Bonus Potential be deemed to have
been earned by the Executive if the Executive resigns other than
for Good Reason or if the Employment is terminated for
Cause.
|
|
|
|
|
|
2.6
|
|
Cause: As used in this
Agreement:
|
|
|
(a)
|
|
The
terms “Cause,” “for cause,” or “with
cause” (in upper or lower case) mean only one or more of the
following except as excluded by subparagraph (b): (1) the
Executive’s conviction of a felony; (2) the
Executive’s willful, material and irreparable breach of this
Agreement (other than for reason of illness or disability) or any
other agreement or contract between the Executive and the Company
or any of its subsidiaries; (3) the Executive’s gross
negligence in the performance of, or intentional nonperformance of
or inattention to, the Executive’s material duties and
responsibilities hereunder, continuing for thirty (30) days
after receipt of written notice of need to cure the same; or
(4) the Executive’s willful dishonesty or financial
dishonesty, moral turpitude, fraud, theft or material misconduct
with respect to the business or affairs of the Company or any of
its subsidiaries.
|
|
|
|
|
|
|
|
(b)
|
|
The
terms “Cause,” “for cause,” and “with
cause” (in upper or lower case) shall not include any of the
following: (1) bad judgment; (2) negligence other than
gross negligence; (3) any act or omission that was based upon
(i) authority given pursuant to a resolution duly adopted by
the Board, (ii) instructions of the Board or any committee
thereof or (iii) the advice of counsel for the Company; or
(4) any act or omission that the Executive believed in good
faith to have been in the interest of the Company, without intent
of the Executive to gain therefrom, directly or indirectly, a
personal profit to which he was not legally entitled.
|
|
2.7
|
|
Change of Control
is defined in
Section 10.2.
|
|
|
|
|
|
2.8
|
|
COBRA means the Consolidated Omnibus
Budget Reconciliation Act, as the same may be amended from time to
time, or any successor statute, together with any applicable
regulations in effect at the time in question.
|
|
|
|
|
|
2.9
|
|
Company Bonus Plan
refers to the plan that
provides for incentive-based annual corporate bonuses for all
Senior Executives, or such other bonus plan as the Company may from
time to time adopt for its Senior Executives in its sole
discretion, for providing such incentive-based annual bonuses. The
Company Bonus Plan shall establish the bonus criteria for the
Company and/or the Executive required for specified bonus payment
percentages to be earned. Any such employee-performance criteria
which the Company makes applicable to the Executive shall be
consistent with the Executive’s Position. The
Executive’s Bonus Plan is attached as
Exhibit B.
|
|
|
|
|
|
2.10
|
|
Company Group
means COMSYS IT
Partners, Inc. and its subsidiaries.
|
2
|
2.11
|
|
Company Business
is intentionally defined
broadly in view of the Executive’s senior position with the
Company; it means (1) any business engaged in by the Company
Group during the Executive’s Employment, or (2) any
other business as to which the Company Group has made demonstrable
preparation to engage in during such Employment and (i) in
which preparation the Executive materially participated, or
(ii) concerning which preparation the Executive had access to
Confidential Information.
|
|
|
|
|
|
2.12
|
|
Confidential Information
means information on any
Company Business that the Executive learns in the course of the
Employment, including but not limited to the information described
in Section 8.1, other than information which the Executive can
show: (i) was in the Executive’s possession or within
the Executive’s knowledge before Executive became employed by
the Company; or (ii) is or becomes generally known to persons
who could take economic advantage of it, other than officers,
directors, and employees of the Company, without breach of an
obligation to the Company; or (iii) the Executive obtained
from a party having the right to disclose it without violation of
an obligation to the Company; or (iv) is required to be
disclosed pursuant to legal process (e.g., a subpoena), provided
that the Executive timely notifies the Company upon receiving or
becoming aware of the legal process in question.
|
|
|
|
|
|
2.13
|
|
Day , in upper or lower case, means a
calendar day except as otherwise stated.
|
|
|
|
|
|
2.14
|
|
Effective Date
is defined in
Section 5.1.
|
|
|
|
|
|
2.15
|
|
Employment means the Executive’s
employment with the Company.
|
|
|
|
|
|
2.16
|
|
Exchange Act means the Securities Exchange Act of
1934, as amended.
|
|
|
|
|
|
2.17
|
|
Good Reason means the occurrence of any one or
more of the following events without the Executive’s express
prior written consent (see also the notice-and-cure provision in
the definition of Resignation for Good Reason):
|
|
|
(a)
|
|
(1) removal by the Board of the
Executive from the Position; (2) a material diminution in the
Executive’s Position, duties, or responsibility from that
held by the Executive immediately prior to such change; or
(3) the assignment by the Company to the Executive of duties
that are materially inconsistent with the Executive’s
Position;
|
|
|
|
|
|
|
|
(b)
|
|
the
Company’s requiring the Executive to be permanently based
(meaning requiring the Executive to perform a majority of her
duties for a period of more than 30 days) anywhere other than
within 50 miles of the Executive’s job location at the time
that the directive for such relocation is made by the
Company;
|
|
|
|
|
|
|
|
(c)
|
|
any
Reduction in the Executive’s Base Salary, Bonus Potential, or
other compensation (including without limitation any Reduction of
any non-contingent bonus or incentive compensation for which the
Executive is eligible);
|
3
|
|
(d)
|
|
failure to provide the Executive
with any Benefit for which the Executive is eligible under the
Benefit plan’s requirements (and, if such Benefit in question
is optional, which the Executive has elected to
receive);
|
|
|
|
|
|
|
|
(e)
|
|
any
failure of the Company to fulfill its material obligations under
this Agreement or under any stock or stock option agreement, change
of control agreement, bonus, benefit or incentive plan or other
agreement between the Executive and the Company (the
Company’s failure to fulfill obligations addressed in
subsections (a) through (d) shall be governed by those
subsections and not subsection (e));
|
|
|
|
|
|
|
|
(f)
|
|
failure of the Company to provide or
maintain a Company Bonus Plan whereby the Executive may earn a
bonus as set forth in Section 4.2; or
|
|
|
|
|
|
|
|
(g)
|
|
any
purported termination by the Company of the Employment other than
as expressly permitted by this Agreement.
|
|
2.18
|
|
Group is defined in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as
amended.
|
|
|
|
|
|
2.19
|
|
Merger Transaction
means a merger,
consolidation or reorganization of the Company with or into any
other Person or Group, other than the Permitted Holders.
|
|
|
|
|
|
2.20
|
|
On-Target Performance
means the point at which
the requirements under the Company Bonus Plan necessary for a full
payout of the Bonus Potential have been achieved.
|
|
|
|
|
|
2.21
|
|
Permitted Holders
means Wachovia
Investors, Inc. and its affiliates.
|
|
|
|
|
|
2.22
|
|
Person is defined in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as
amended.
|
|
|
|
|
|
2.23
|
|
Position means the area of responsibility so
identified in Exhibit A, Schedule 1. If the Company in
its sole discretion increases the Executive’s area of
responsibility, then such increased area of responsibility shall be
deemed the Position for all purposes hereunder.
|
|
|
|
|
|
2.24
|
|
Reduction , as applied to any aspect of the
Executive’s compensation or benefits, means any exclusion,
discontinuance without comparable replacement, diminution or
reduction in the same as in effect immediately prior to such
exclusion, discontinuance, diminution or reduction.
|
|
|
|
|
|
2.25
|
|
Resign for Good Reason
or Resignation for
Good Reason means that all of the following occur:
|
|
|
(a)
|
|
the
Executive notifies the Company in writing, in accordance with the
notice provisions of this Agreement, of the occurrence of one or
more events constituting Good Reason hereunder;
|
4
|
|
(b)
|
|
the
Company fails to revoke, rescind, cancel, or cure the event (or if
more than one, all such events) that was the subject of the
notification under subparagraph (a) within thirty
(30) days after such notice; and
|
|
|
|
|
|
|
|
(c)
|
|
within ten (10) business days
after the end of the thirty-day period described in subparagraph
(b), the Executive delivers to the Company a notice of resignation
in accordance with this Agreement.
|
|
2.26
|
|
Sale Transaction
means a sale, lease,
exchange or other transfer of all or substantially all the assets
of the Company and its consolidated subsidiaries to any other
Person or Group, other than the Permitted Holders.
|
|
|
|
|
|
2.27
|
|
Schedule 1
means Schedule 1
set forth at the end of this Agreement in
Exhibit A.
|
|
|
|
|
|
2.28
|
|
Senior Executives
means those officers of
the Company who are designated executive officers from time to
time.
|
|
|
|
|
|
2.29
|
|
Severance Benefits
means the
post-employment compensation and benefits to be provided to the
Executive by the Company as set forth in Section 6.
|
|
|
|
|
|
2.30
|
|
Severance Payment
is defined in
Section 6.1.
|
|
|
|
|
|
2.31
|
|
Special Severance
Benefits is
defined in Section 10.1.
|
|
|
|
|
|
2.32
|
|
Special Severance Payment
is defined in
Section 10.1.
|
|
|
|
|
|
2.33
|
|
Termination Date
means the effective date
of the Executive’s termination of Employment with the Company
Group. For purposes of this Agreement, whether a termination of
Employment has occurred shall be determined consistent with the
requirements of Section 409A of the Code and the
Company’s administrative policies, including, when
applicable, the COMSYS 409A Policy.
|
|
|
|
|
|
2.34
|
|
Tribunal means a court or other body of
competent jurisdiction that is deciding a matter relating to this
Agreement.
|
|
|
|
|
|
2.35
|
|
Voting Stock means shares of capital stock of the
Company the holders of which are entitled to vote for the election
of directors, but excluding shares entitled to so vote only upon
the occurrence of a contingency unless that contingency shall have
occurred.
|
|
|
|
|
|
3.
|
|
EMPLOYMENT.
|
|
|
|
|
|
3.1
|
|
Position . Subject to the terms and
conditions hereinafter set forth, the Company hereby agrees to
employ the Executive, and the Executive hereby agrees to serve the
Company, at the office and in the Position referred to on
Exhibit A, Schedule 1.
|
|
|
(a)
|
|
The
Executive will (i) devote substantially all of her time,
attention, and energies to the business of the Company and will
diligently and to the best of her ability perform all duties
incident to her Employment hereunder; (ii) use her best
efforts
|
5
to promote the
interests and goodwill of the Company; and (iii) perform such
other duties commensurate with the Position as the Board may from
time to time assign to the Executive.
|
|
(b)
|
|
The
Executive will obtain the written consent of the Board prior to
serving on corporate, civic or charitable boards or committees.
This Section 3.1 will not be construed as preventing the
Executive from serving on the corporate, civic or charitable boards
or committees on which she currently serves, as listed on
Exhibit C; provided , however, that in no event
will any such service or business activity require the provision of
substantial services by the Executive to the operations or the
affairs of such businesses or enterprises such that the provision
thereof would interfere in any respect with the performance of the
Executive’s duties hereunder.
|
|
3.2
|
|
Office Space, Equipment,
etc . The
Company will provide the Executive with office space, related
facilities, equipment and support personnel that are commensurate
with the Position.
|
|
|
|
|
|
3.3
|
|
Expense
Reimbursement.
|
|
|
(a)
|
|
The
Company will timely reimburse the Executive for reasonable business
expenses incurred by the Executive in connection with the
Employment in accordance with the Company’s then-current
policies no later than seventy-five (75) days following the
date on which the Executive incurs such expense(s).
|
|
|
|
|
|
|
|
(b)
|
|
Without limiting Section 2.17
(Good Reason includes relocation without consent), or this
Section 3.3, if the Company determines that the Executive will
be relocated, then the Company will, in connection with such
relocation, pay or reimburse the Executive for all reasonable
moving expenses incurred by the Executive, in accordance with the
Company’s then-current policies, no later than seventy-five
(75) days following the date on which the Executive incurs such
expense(s).
|
|
4.
|
|
COMPENSATION AND BENEFITS DURING
EMPLOYMENT .
During the Employment, the Company will provide compensation and
benefits to the Executive as follows:
|
|
|
|
|
|
4.1
|
|
Base Salary . The Company will pay the Executive
a base salary at a rate (before deductions, e.g., for employee-paid
insurance premiums; deferrals, e.g., for flex-plan contributions;
and withholding) not less than the Base Salary rate set forth on
Exhibit A, Schedule 1. If the Company in its sole
discretion increases the Executive’s base salary, then such
increased salary shall be deemed the Base Salary for all purposes
hereunder. All salary payments shall be made in accordance with the
normal payroll practices of the Company but in no less than equal
semi-monthly installments, less withholding or deductions required
by law or agreed to by the Executive.
|
|
|
|
|
|
4.2
|
|
Annual Bonus . In addition to the Base Salary,
the Executive will participate in the Company’s Bonus Plan.
Executive will be paid her Bonus Potential Earned pursuant
to
|
6
|
|
|
the
terms of the Company Bonus Plan. A copy of Executive’s Bonus
Plan is attached as Exhibit B.
|
|
|
|
|
|
4.3
|
|
Benefits . The Executive will, upon
satisfaction of legal or applicable third-party provider
eligibility requirements with respect thereto, be entitled to
participate in all Benefits now or hereafter in effect or that are
hereafter made available to the Company’s employees
generally. The previous sentence shall not be construed as limiting
the Company’s right, in its sole discretion, to add to,
reduce, modify, or eliminate any such Benefit. In addition, the
Company shall maintain for the Executive any specific benefits set
forth on Exhibit A, Schedule 1.
|
|
|
|
|
|
4.4
|
|
Vacation; Holidays; Sick
Leave .
During the Employment, the Executive shall be entitled to sick
leave, holidays and vacation time off (included within the
Company’s Paid Time Off Policy (“ PTO ”)),
all in accordance with the regular policy of the Company for its
Senior Executives (but in no event less than the PTO set forth on
Exhibit A, Schedule 1), during which time her
compensation and benefits shall be paid or provided in
full.
|
|
|
|
|
|
4.5
|
|
Annual Compensation
Review . At
least annually during the Employment, the Company shall review with
the Executive the Base Salary, the Bonus Potential, and all other
forms of compensation, which the Executive is then receiving (or,
in the case of contingent compensation, for which the Executive is
a participant in the applicable plan). The Base Salary and Bonus
Potential may be increased (but not decreased) from time to time as
determined by the Company’s Board or the Compensation
Committee thereof. Any increase in Base Salary shall not limit or
reduce any other obligation of the Company to the Executive under
this Agreement. The Base Salary and Bonus Potential may not be
decreased without the Executive’s express prior written
consent.
|
|
|
|
|
|
4.6
|
|
Equity . Awards of equity securities under
the Company’s Amended and Restated 2004 Stock Incentive Plan
(or any successor equity incentive plans) competitive with industry
standards for executives in like positions shall be made from time
to time subject to the discretion of the Compensation Committee of
the Board.
|
|
|
|
|
|
5.
|
|
TERMINATION OF
EMPLOYMENT
|
|
|
|
|
|
5.1
|
|
Term of Agreement
. The term of the
Employment will commence on the date hereof (the “
Effective Date ”), continue to December 31, 2009
(the “ Original Term ”) and renew automatically
thereafter for successive one-year terms (each, a “
Renewal Term ”) unless written notice of non-renewal
is given by either party to the other party at least six months
prior to the end of the Original Term or any Renewal Term (the
“ Expiration Date ”); provided ,
however , that the Employment may also be terminated prior
to such Expiration Date (i) by the Executive for any reason,
including Good Reason, (ii) by the Company with Cause, (iii)
by the Company without Cause or (iv) by the Company upon the
Disability or death of the Executive. In the event that
(i) the Company does not renew the Agreement at the end of the
Original Term or any Renewal Term, (ii) the Company terminates
Employment prior to the Expiration Date without Cause,
(iii) the Executive terminates Employment prior to the
Expiration Date for Good Reason, or (iv)
|
7
|
|
|
the
death or Disability of the Executive, the Executive shall be
entitled to receive Severance Benefits pursuant to Section 6
of this Agreement.
|
|
|
|
|
|
5.2
|
|
Termination in the Event of
Disability .
In the event of the inability of the Executive, by reason of mental
or physical disability to perform her material duties hereunder,
for a period of 120 consecutive days or 180 non-consecutive days
during any twelve (12) month period, as reasonably determined
by the Board or as certified by a qualified physician selected by
the Board (collectively, “ Disability
&rdquo
|
|
