Exhibit 10.9
HUDSON HIGHLAND GROUP
EXECUTIVE EMPLOYMENT AGREEMENT
This employment agreement (the
“Agreement”), by and between Hudson Highland Group,
Inc. (the “Company”) and Richard S. Gray (the
“Executive”), is amended and restated effective
March 3, 2009.
WHEREAS, the Company wishes to
continue to employ the Executive and the Executive wishes to
continue to be employed in accordance with the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of
the conditions and mutual covenants contained in this Agreement,
the parties agree as follows:
1. Defined Terms .
(a) Affiliate . The term
“Affiliate” means each entity that is required to be
included in the Company’s controlled group of corporations
within the meaning of Code Section 414(b), or that is under
common control with the Company within the meaning of Code
Section 414(c); provided that the phrase “at
least 50 percent” shall be used in place of the phrase
“at least 80 percent” each place it appears therein or
in the regulations thereunder.
(b) Code . The term
“Code” means the Internal Revenue Code of 1986,
including any amendments thereto or successor tax codes
thereof.
(c) Separation from Service .
The term “Separation from Service” means an
Executive’s termination of employment from the Company and
its Affiliates, or if the Executive continues to provide services
following his or her termination of employment, such later date as
is considered a separation from service, within the meaning of Code
Section 409A, from the Company and its Affiliates.
Specifically, if Executive continues to provide services to the
Company or an Affiliate in a capacity other than as an employee,
such shift in status is not automatically a Separation from
Service. The Executive will be presumed to have terminated
employment from the Company and its Affiliates when the level of
bona fide services provided by the Executive (whether as an
employee or independent contractor) to the Company and its
Affiliates permanently decreases to a level of twenty percent
(20%) or less of the level of services rendered by such
individual, on average, during the immediately preceding 36 months
(or such lesser period of service). Notwithstanding the foregoing,
if the Executive takes a leave of absence for purposes of military
leave, sick leave or other bona fide leave of absence, the
Executive will not be deemed to have incurred a Separation from
Service for the first six (6) months of the leave of absence,
or if longer, for so long as the Executive’s right to
reemployment is provided either by statute or by contract; provided
that if the leave of absence is due to a medically determinable
physical or mental impairment that can be expected to result in
death or last for a continuous period of not less than six
(6) months, where such impairment causes the Executive to be
unable to perform the duties of his or her position of employment
or any substantially similar position of employment, the leave may
be extended for up to twenty-nine (29) months without causing
a Termination of Employment.
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2. Employment . The Company
will employ the Executive and the Executive accepts employment as
Senior Vice President, Marketing and Communications. The Executive
will perform duties normally associated with such position and/or
other duties as may be assigned from time to time during the Term
as defined in Section 3 below. The Executive shall perform
such duties in a manner consistent with applicable laws and
regulations and any code of ethics, compliance manual, employee
handbook or other policies and procedures adopted by the Company
from time to time and subject to any written directives issued by
the Company from time to time. The Executive must acknowledge
receipt of the Company’s Ethics Policy and confirm that the
Executive will comply with the Policy. Failure to confirm
compliance annually with the Company’s Ethics Policy will
justify termination for cause unless, at the sole discretion of the
Board, non-compliance is deemed non-material.
3. Term of Employment . The
Executive’s employment under this Agreement will commence on
the date hereof and will continue for a period of one (1) year
thereafter, subject to earlier termination as provided in
Section 8 (the “Term”). This Agreement and the
Term will be automatically renewed and extended for periods of one
(1) year unless the Company or the Executive provides written
notice no less than thirty (30) days prior to the expiration
of the then-current Term of its or the Executive’s desire not
to renew this Agreement.
4. Scope of Responsibilities and
Duties . The Executive agrees to devote the Executive’s
full business time, attention, efforts and energies in performance
of the Executive’s duties and responsibilities hereunder.
While employed by the Company, the Executive may not engage in any
employment other than for the Company, in any conflicting business
activities, or have any financial interest, directly or indirectly,
in any business competing with the Company or otherwise engaged in
the business of the Company or its affiliates. The foregoing does
not prevent the Executive from (1) serving on the Board of
directors of another organization with the consent of the CEO of
the Company or (2) passively investing in publicly traded
securities; provided such investments do not require services on
the part of the Executive which would in any way impair the
performance of the Executive’s duties pursuant to this
Agreement.
5. Compensation and Benefits
. The Company will provide the Executive with the following
compensation and benefits during the Term:
(a) The Company will pay the
Executive a salary of $225,000 on an annualized basis, payable in
accordance with the payroll practices of the Company in effect from
time to time, and less such taxes and other deductions required by
applicable law or authorized by the Executive (the “Base
Salary”).
(b) The Executive will be entitled
to accrue paid vacation at the rate of the greater of (i) four
(4) weeks per year, or (ii) the vacation allowance as
provided under the Company’s vacation plan that applies to
similarly situated employees working at the office location at
which the Executive is based. In addition, the Company will provide
the Executive with other benefits of employment offered, from time
to time to similarly situated employees at the office location at
which the Executive is based.
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(c) The Executive will receive an
annual bonus as provided under the Company’s Senior
Management Bonus Plan as is in effect from time to time.
6. Additional Agreements .
The Executive’s employment hereunder is further contingent
upon the Executive’s simultaneous execution of the
Confidentiality, Non-Solicitation and Work Product Assignment
Agreement and Mutual Agreement to Arbitrate Claims, which is
attached as Attachment A and forms a part of this
Agreement.
7. Representations and
Warranties . The Executive represents and warrants as
follows:
(a) All information, oral and
written (including, but not limited to information contained on the
Executive’s resume), provided by the Executive during the
recruiting and employment process is accurate and true to the best
of the Executive’s knowledge, and such information does not
include any misleading or untrue statement or omit to state any
fact necessary to make the information provided not
misleading.
(b) The Executive has never been the
subject of any investigation or subject to any disciplinary action
by any governmental agency, industry self-regulatory body or other
employer.
(c) The execution, delivery and
performance of this Agreement by the Executive and the
Executive’s employment hereunder are not in violation
of:
(i) the terms, including any
non-competition, non-disclosure, non-solicitation or
confidentiality provisions, of any written or oral agreement,
arrangement or understanding to which the Executive is a party or
by which the Executive is bound; or
(ii) any United States federal or
state statute, rule, regulation, or other law, or any judgment,
decree or order applicable or binding upon the
Executive.
8. Termination . This
Agreement and the Executive’s employment may be terminated
prior to the expiration of the Term as follows:
(a) Death . If the Executive
dies during the Term, this Agreement shall automatically terminate
and the Company shall have no further obligation to the Executive
or the Executive’s estate, except to pay the
Executive’s estate that portion of the Base Salary earned
through the date on which the Executive’s death
occurs.
(b) Disability . If the
Executive is unable to perform the Executive’s essential job
duties and responsibilities due to mental or physical disability
for a total of twelve (12) weeks, whether consecutive or not,
during any rolling twelve (12) month period, the Company may
terminate the Executive’s employment and this Agreement upon
five (5) days’ written notice to the Executive. For
purposes of this Agreement, the Executive will be considered
disabled when the Company, with the advice of a qualified
physician, determines that the Executive is physically or mentally
incapable (excluding infrequent and temporary absences due to
ordinary illness) of performing the Executive’s essential job
duties. The Executive shall cooperate with the
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Company in obtaining the advice of a
qualified physician regarding the Executive’s condition. In
the event of termination pursuant to this Section 8(b), the
Company will be relieved of all obligations under this Agreement,
provided that the Company will pay to the Executive that portion of
the Base Salary under Section 5(a) which has been earned
through the date on which such termination occurs.
(c) Discharge
without Cause or Termination on Expiration . The Company may
terminate the Executive and this Agreement at any time during the
Term for any reason, without Cause (as defined in Section 8(e)
below) upon thirty (30) days’ written notice to the
Executive. If the Company gives notice of non-renewal of employment
within the 30-day period as provided in Section 3, it will be
treated as a termination without cause. Upon such termination, the
Company will have no further liability to the Executive other than
to provide the Executive with (i) that portion of the Base
Salary under Section 5(a) earned through the date of the
termination, (ii) severance pay in an amount equal to the
Executive’s then-current Base Salary, less applicable
deductions, for a period of twelve (12) months (the
“Severance Period”) following the Executive’s
Separation from Service, and (iii) the Company’s portion
of the premium for continued coverage under the Company’s
group health and dental insurance plan during the Severance Period
following the Executive’s termination, provided the Executive
applies and remains eligible for such continuation coverage under
applicable law, and provided further that the Executive authorizes
the Company to deduct only the Executive’s portion of such
premiums from the severance payments. It is understood that the
period the Company makes such payments will run concurrently with
the period of continuation coverage for which the Executive may be
eligible under applicable law. The Executive’s receipt of the
severance payments and premium payments by the Company set forth in
this Section 8(c) are conditioned upon the Executive executing
a comprehensive release and waiver agreement and covenant not to
sue as provided by the Company at the time of termination.
Severance payments will be made in equal installments on dates
corresponding with the Company’s regular pay dates during the
Severance Period. Notwithstanding the foregoing, if the severance
pay that is payable during the first six (6) months following
the Executive’s Separation from Service exceeds two times the
lesser of (1) the Executive’s annualized compensation
paid by the Company for the calendar year preceding the calendar
year in which the Separation from Service occurs (as adjusted for
any increase during that year that was expected to continue
indefinitely if the Separation from Service had not occurred), or
(2) the compensation limit in effect pursuant to Code
Section 401(a)(17) for the calendar year in which the
Executive’s Separation from Service occurs, then payment of
such excess shall be delayed and paid in a lump sum on the first
day of the seventh (7 th ) month following the
month in which the Separation from Service occurs , and in
such event, the payment shall be accompanied by a payment of
interest calculated at the rate of interest announced by the
Federal Reserve Board (or any successor thereto) from time to time
as the “federal funds rate”, such rate to be determined
on the date of the Executive’s termination of employment,
compounded quarterly.
(d) Termination for Cause .
The Company may terminate the Executive’s employment and this
Agreement at any time during the Term for Cause as defined below.
In such case, this Agreement and the Executive’s employment
shall terminate
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immediately and the Company shall
have no further obligation to the Executive, except that the
Company shall pay to the Executive that portion of the Base Salary
under Section 5(a) earned through the date on which such
termination occurs.
(e) Definition of Cause . For
purposes of this Agreement, Cause shall be defined as:
(i) the willful or negligent failure
of the Executive to perform the Executive’s duties and
obligations in any material respect (other than any failure
resulting from Executive’s disability), which failure is not
cured within fifteen (15) days after receipt of written notice
thereof, provided that there shall be no obligation to provide any
additional written notice if the Executive’s failure to
perform is repeated and the Executive has previously received one
(1) or more written notices;
(ii) acts of dishonesty or willful
misconduct by the Executive with respect to the Company;
(iii) conviction of a felony or
violation of any law involving moral turpitude, dishonesty,
disloyalty or fraud, or a pleading of guilty or nolo
contendere to such charge;
(iv) repeated refusal to perform the
reasonable and legal instructions of the Executive’s
supervisors;
(v) any material breach of this
Agreement or Attachment A; or
(vi) failure to confirm compliance
with the Company’s Ethics Policy after 10 days’ written
notice requesting confirmation.
(f) Resignation . The
Executive may voluntarily resign from employment at any time during
the Term upon 3 months’ written notice and in compliance with
the provisions of Attachment A. In such event, the Company shall be
relieved of all its obligations under this Agreement, except that
the Company shall pay to the Executive that portion of the Base
Salary under Section 5(a) earned through the date on which
such resignation is effective subject to any irrevocable deferral
election then in effect.
(g) Continuance of
Obligations . The Executive remains obligated to comply with
the Executive’s obligations and duties pursuant to Attachment
A despite the termination of this Agreement and the
Executive’s employment for any reason.
(h) Cooperation . During
employment and after the termination of this Agreement and the
Executive’s employment for any reason, the Executive agrees
to cooperate fully with and at the request of the Company in the
defense or prosecution of any legal matter or claim in which the
Company, any of its affiliates, or any of their past or present
employees, agents, officers, directors, attorneys, successors or
assigns, may be or become involved and which arises or arose during
the Executive’s employment. The Executive will be reimbursed
for any reasonable out-of-pocket expenses incurred
thereby.
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(i) No Disparagement . During
and after the termination of this Agreement and the
Executive’s employment for any reason, the Executive agrees
that, except as may be required by the lawful order of a court or
agency of competent jurisdiction, the Executive will not take any
action or make any statement or disclosure, written or oral, that
is intended or reasonably likely to disparage the Company or any of
its affiliates, or any of their past or present employees, officers
or directors.
9. Change in Control .
Notwithstanding any other provisions of this Agreement to the
contrary:
(a) Employment Period . If a
Change in Control (as defined below) occurs when the Executive is
employed by the Company, the Company will continue thereafter to
employ the Executive during the period commencing on the date of a
Change in Control and ending on the first anniversary of such date
(the “Employment Period”) and thereafter in accordance
with Section 3 of this Agreement, and the Executive will
remain in the employ of the Company in accordance with and subject
to the terms and provisions of this Agreement.
(b) Covered Termination . If
there is any termination of the Executive’s employment during
the Employment Period (subject to Section 9(e)) by the
Executive for Good Reason (as defined below), or by the Company
other than by reason of (i) death pursuant to
Section 8(a), (ii) disability pursuant to
Section 8(b), or (iii) Cause (a “Covered
Termination”), then the Executive shall be entitled to
receive, and the Company shall promptly pay, that portion of the
base salary under Section 5(a) earned through the date of the
termination and, in lieu of further base salary for periods
following such termination, as liquidated damages and
addition
