Exhibit 10.02
EXECUTION COPY
EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT, dated as of
February 8, 2007 (the “ Employment Agreement
”), by and among Education Management LLC, a Delaware limited
liability company (together with its successors and assigns, the
“ Company ”), Todd S. Nelson (the “
Executive ”), and for the limited purpose set forth on
the signature page hereto, Education Management Corporation, a
Pennsylvania corporation and indirect parent of the Company (the
“ Parent ”) (each of the Executive and the
Company, a “ Party ,” and collectively, the
“ Parties ”).
WHEREAS, the Company desires to
employ the Executive and utilize his management services as
indicated herein, and the Executive desires to be employed by the
Company, all on the terms and conditions set forth in this
Employment Agreement.
NOW, THEREFORE, in consideration of
the mutual covenants contained herein and other valid consideration
the sufficiency of which is acknowledged, the Parties agree as
follows:
1.1. Term . The Company
agrees to employ the Executive, and the Executive agrees to be
employed by the Company, in each case pursuant to this Employment
Agreement, for a period commencing on February 20, 2007 (the
“ Effective Date ”) and ending on the third
(3rd) anniversary of the Effective Date (the “
Initial Term ”); provided, however, that the term of
this Employment Agreement and the Executive’s employment
hereunder shall renew automatically for successive one
(1) year periods (each, a “ Renewal Term
”), unless at least one hundred eighty (180) days prior
to the end of the Initial Term or any subsequent anniversary of the
Effective Date, either Party shall have given notice to the other
Party that this Employment Agreement shall terminate on that
anniversary date (the Initial Term, together with any Renewal
Terms, the “ Term ”). Notwithstanding the
foregoing, the Executive’s employment shall be subject to
earlier termination in accordance with Section 3
hereof.
1.2. Duties . During the
Term, the Executive shall serve as the Company’s Chief
Executive Officer (“ CEO ”) and as a member of
the boards of directors of the Company (the “ Board
”) and of the Parent, and such other positions as officer or
director of the Company and its affiliates as the Executive and the
Board shall mutually agree from time to time. In such positions,
the Executive shall perform such duties, functions and
responsibilities during the Term commensurate with the
Executive’s positions. Subject to Section 1.3 below, the
Executive shall have all authorities, duties and responsibilities
customarily exercised by an individual serving in the foregoing
positions at an entity of the size and nature of the Company; shall
be assigned no duties or responsibilities that are materially
inconsistent with, or that materially impair his ability to
discharge, the foregoing duties and responsibilities; shall have
such additional duties and responsibilities, consistent with the
foregoing, as may be from time to time assigned to him; and in his
capacity as CEO shall report solely and directly to the
Board.
1.3. Exclusivity . During the
Term, the Executive shall devote his full business time and
attention to the business and affairs of the Company, shall
faithfully serve the Company, and shall in all material respects
conform to and comply with such lawful and
reasonable directions and
instructions given to him as are consistent with Sections 1.2 and
1.3 hereof. During the Term, the Executive shall use his reasonable
best efforts to promote and serve the interests of the Company and
shall not engage in any other business activity, whether or not
such activity shall be engaged in for pecuniary profit.
Notwithstanding the foregoing provisions of this Section 1.3,
but subject to the other provisions of this Employment Agreement,
the Executive may (i) engage in charitable activities and
community affairs, (ii) serve, with the prior approval of the
Board (such approval not to be unreasonably withheld), on the
boards of a reasonable number of business entities, trade
associations and charitable organizations, (iii) accept and
fulfill a reasonable number of speaking engagements, and
(iv) manage his personal investments and affairs; provided
that such activities do not either individually or in the aggregate
materially interfere with the performance of his duties
hereunder.
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Section 2.
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Compensation .
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2.1. Salary . As compensation
for the performance of the Executive’s services hereunder,
during the Term, the Company shall pay to the Executive a salary at
an annual rate of five hundred fifty thousand dollars ($550,000),
payable in accordance with the Company’s standard payroll
policies (the “ Base Salary ”). The Base Salary
will be reviewed annually and may be adjusted upward by the Board
(or a committee thereof) in its discretion, based on competitive
data and the Executive’s performance.
2.2. Annual Bonus . The
Executive will be eligible for an annual incentive bonus (the
“ Annual Bonus ”) for each complete fiscal year
occurring during the Term. The Executive’s target bonus will
be one hundred twenty-five percent (125%) of the Base Salary.
The actual Annual Bonus paid for any year will depend on meeting
Company and individual performance standards established by the
Board. The Annual Bonus will be paid in cash within seventy-five
(75) days of the end of the fiscal year. Notwithstanding the
foregoing, for the fiscal year ending June 30, 2007, the
Executive will be entitled to five-twelfths (5/12) of an
Annual Bonus, based on the Company’s actual performance
measured against the management plan established by the Board for
2007.
2.3. Equity . (a)
Stock Purchase . On or about the Effective Date, the
Executive will purchase ten million dollars ($10,000,000) of Common
Stock of the Parent pursuant to a subscription agreement between
the Parent and the Executive substantially in the form attached
hereto as Exhibit A.
(b) Option Grant . As of the
Effective Date, the Parent will grant to the Executive time-vesting
and performance-vesting options to purchase 564,203 shares of
Common Stock of the Parent, fifty percent (50%) of which will
be pursuant to a time-vesting option agreement between the Parent
and the Executive substantially in the form attached hereto as
Exhibit B, and fifty percent (50%) of which will be pursuant
to a performance-vesting option agreement between the Parent and
the Executive substantially in the form attached hereto as Exhibit
C.
2.4. Employee Benefits .
During the Term, the Executive shall be eligible to participate in
such health and other employee welfare, retirement and other
employee benefit plans and programs, and perquisites, of the
Company as in effect from time to time on the same basis as
similarly situated executives of the Company.
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2.5. Vacation . During the
Term, the Executive shall be entitled to paid vacation in
accordance with the Company’s vacation policy as in effect
from time to time.
2.6. Business Expenses . The
Company shall pay or reimburse the Executive for all commercially
reasonable business out-of-pocket expenses that the Executive
incurs during the Term in performing his duties under this
Employment Agreement upon presentation of documentation and in
accordance with the expense reimbursement policy of the Company as
approved by the Board (or a committee thereof) and in effect from
time to time.
2.7. Attorney’s Fees .
The Company agrees to promptly pay all fees and charges of the
Executive’s attorneys reasonably incurred by the Executive in
connection with the negotiation and execution of this Employment
Agreement, his purchase of common stock of the Parent, and related
agreements.
2.8. Housing . It is expected
that the Executive will perform his duties hereunder about 50% of
the time in the Company’s Pittsburgh office and about 50% of
the time in Arizona and Utah; provided , however ,
that no later than June 30, 2009, the Executive will relocate
his primary residence to the metropolitan Pittsburgh, Pennsylvania
area and will perform his duties hereunder substantially in the
Pittsburgh office (other than time spent on business travel). Until
such relocation, the Executive will be provided with Company
housing in the metropolitan Pittsburgh area and will be reimbursed
for reasonable travel expenses for travel between Arizona and
Pittsburgh and between Utah and Pittsburgh.
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Section 3.
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Employment
Termination .
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3.1. Termination of
Employment . The Company may terminate the Executive’s
employment hereunder for any reason during the Term, and the
Executive may voluntarily terminate his employment hereunder for
any reason during the Term, in each case (other than a termination
by the Company for Cause) at any time upon not less than thirty
(30) days’ notice to the other Party. Upon any
termination of the Executive’s employment hereunder for any
reason during the Term, the Executive shall be entitled to
(i) any Base Salary earned but unpaid through the date of
termination; (ii) any other payment or benefit to which he is
entitled under the applicable terms of any applicable plan,
program, agreement or arrangement of the Company or its affiliates
(each, a “ Company Arrangement ”), including the
plans, programs, agreements and arrangements referred to in
Sections 2.2 through 2.7 and 8.1 ((i) and (ii) being,
collectively, the “ Accrued Amounts ”);
provided , however, that if the Executive’s employment
hereunder is terminated (x) by the Company for Cause, or
(y) by the Executive voluntarily without Good Reason and not
for death or Disability, then any Annual Bonus earned pursuant to
Section 2.2 in respect of a prior fiscal year, but not yet
paid or due to be paid, shall be forfeited.
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3.2. Certain Terminations
.
(a) Termination by the Company
Other than for Cause; Termination by the Executive for Good
Reason . If the Executive’s employment hereunder is
terminated by the Company during the Term other than for Cause, or
by the Executive with Good Reason, in addition to the Accrued
Amounts the Executive shall be entitled to a lump sum severance
payment of (i) one and one-half (1.5) times (or three
(3) times if (x) the Executive reasonably demonstrates
that the termination is In Anticipation Of, or (y) occurring
within two (2) years following, a “Change in
Control” (as defined in the Parent’s 2006 Stock Option
Plan)) the sum of the Executive’s Base Salary plus the target
Annual Bonus and (ii) a pro-rata Annual Bonus (determined by
multiplying the target Annual Bonus for the year of termination by
a fraction, the numerator of which is the number of days he was
employed by the Company during such fiscal year and the denominator
of which is the number of days in such fiscal year) (the “
Pro-Rata Annual Bonus Payment ”) ((i) and (ii),
collectively the “ Severance Payment ”), subject
to the provisions of the last sentence of Section 4.8 hereof.
The Company’s obligations to make the Severance Payment shall
be conditioned upon the Executive’s execution, delivery and
non-revocation of a valid and enforceable general release of claims
substantially in the form attached hereto as Exhibit D (the “
Release ”). Subject to Section 3.2(e), the
Severance Payment will be paid to the Executive as soon as
practicable following the effectiveness of the Release. The Company
shall also reimburse the Executive, on a monthly basis, for an
amount of his COBRA premiums (for the duration of COBRA
continuation coverage, not to exceed eighteen (18) months
following termination of employment) equal to difference between
(x) the amount of COBRA premium charged to the Executive minus
(y) the amount of premium charged to actively employed senior
executives for like coverage as that elected by the
Executive.
(b) Termination at Expiration of
the Term at the Company’s Request . If the
Executive’s employment hereunder is terminated solely as a
result of the Company’s electing under Section 1.1 not
to renew the Employment Agreement at the expiration of the then
current Term by giving notice thereof to the Executive, and the
Executive terminates his employment within thirty (30) days
after the end of the Term, then such termination of employment
shall be considered a termination without Cause
hereunder.
(c) Termination Due to Death or
Disability . If the Executive’s employment hereunder is
terminated during the Term due to the Executive’s death or
Disability, the Company shall pay the Executive or his estate, as
applicable, in addition to the Accrued Amounts, a Pro-Rata Annual
Bonus Payment for the year of such termination.
(d) Definitions . For
purposes of this Section 3.2, the following terms shall have
the following meanings:
(1) “ Good Reason
” shall mean the occurrence of any of the following events
without either the Executive’s prior written consent or full
cure within thirty (30) days after he gives written notice to
the Company describing the event and requesting cure: (i) any
material diminution in the Executive’s authorities, titles or
offices, or the assignment to the Executive of duties that
materially impair his ability to perform the duties normally
assigned to an executive in the Executive’s role at a
corporation of the size and nature of the Company; (ii) any
change in the reporting structure so that the Executive reports to
someone other than the Board; (iii) any relocation of the
Company’s principal office to a location more than fifty
(50)
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miles from Pittsburgh, Pennsylvania;
provided , however , that this clause (iii) of
Section 3.2(d)(1) shall apply only following the
Executive’s relocation to the metropolitan Pittsburgh area as
described in Section 2.8 hereof; (iv) any material breach
by the Company or any of its affiliates of any material obligation
to the Executive; or (v) any failure of the Company to obtain
the assumption in writing of its obligation to perform this
Employment Agreement by any successor to all or substantially all
of the assets of the Company within fifteen (15) days after
any merger, consolidation, sale or similar transaction, except
where such assumption occurs by operation of law. If the Company
fails to cure a Good Reason event during the thirty (30) day
cure period, the Executive must terminate his employment within
sixty (60) days after the expiration of such thirty
(30) day period if such termination is to be treated as for
Good Reason based on such uncured Good Reason event.
(2) “ Cause ”
shall mean (i) the Executive’s willful and continued
failure to use his best efforts to perform his reasonably assigned
duties (other than on account of Disability); (ii) the
Executive is indicted for, convicted of, or enters a plea of guilty
or nolo contendere to, (x) a felony or (y) a misdemeanor
involving moral turpitude; (iii) in carrying out his duties
under this Employment Agreement, the Executive engages in
(x) gross negligence causing material harm to the Parent, the
Company, or its or their business or reputation, (y) willful
and material misconduct, or (z) willful and material breach of
fiduciary duty; (iv) the Executive willfully and materially
breaches (x) the restrictive covenants described in
Section 4 of this Employment Agreement or (y) any of the
material written policies listed on Exhibit E, as in effect on the
Effective Date; or (v) the Executive is named in and receives
a Wells Notice or is notified by the United States Department of
Justice or U.S. Attorneys Office that he has been designated a
“target” of an investigation by either of them. The
determination of whether Cause exists shall be made, prior to the
termination becoming effective, at a duly called meeting of the
Board at which the Executive has been given notice of the grounds
claimed to constitute Cause and an opportunity to be heard together
with his counsel, and shall require a vote of not less than
two-thirds of the members of the Board (not including for this
purpose the Executive if he is then a member of the Board);
provided that any such determination of Cause by the Board shall be
subject to de novo review, at the Executive’s election,
through arbitration in accordance with Section 8.6. No act or
omission of the Executive shall be “willful” if
conducted in good faith or with a reasonable belief that such
conduct was in the best interests of the Company.
(3) “ Disability
” shall mean the Executive is entitled to receive long-term
disability benefits under the long-term disability plan of the
Company in which Executive participates, or, if there is no such
plan, the Executive’s inability, due to physical or mental
incapacity, to substantially perform his duties and
responsibilities under this Employment Agreement for one hundred
eighty (180) consecutive days.
(4) “ In Anticipation
Of ” shall mean that the termination (i) was at the
request of a third party that has taken steps reasonably calculated
to effect a Change in Control or (ii) otherwise arose in
connection with a Change in Control that has been proposed, so long
as in either case such Change in Control shall actually have
occurred.
(e) Section 409A . If
the Executive is a “specified employee” for purposes of
Section 409A of the United States Internal Revenue Code of
1986, as amended, and
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the regulations thereunder (“
Section 409A ”), any Severance Payment required to be
made pursuant to Section 3.2 which is subject to postponement
under Section 409A shall not be paid until one day after the
date which is six (6) months from the date of
termination.
3.3. Exclusive Remedy . The
foregoing payments upon termination of the Executive’s
employment shall constitute the exclusive severance payments due
the Executive upon a termination of his employment under this
Employment Agreement.
3.4. Resignation from All
Positions . Upon the termination of the Executive’s
employment with the Company for any reason, the Executive shall be
deemed to have resigned, as of the date of such termination, from
all positions he then holds as an officer, director, employee and
member of the board (and any committee thereof) of the Parent and
any of its subsidiaries.
3.5. Cooperation . Following
the termination of the Executive’s employment with the
Company for any reason, the Executive agrees to reasonably
cooperate with the Company upon reasonable request of the Board and
to be reasonably available to the Company (taking into account any
other full time employment of the Executive) with respect to
matters arising out of the Executive’s services to the Parent
and its subsidiaries. The Company shall reimburse the Executive for
expenses reasonably incurred in connection with such matters as
agreed by the Executive and the Board and, to the extent the
Executive is required to spend substantial time on such matters,
the Company shall compensate the Executive at an hourly rate based
on the Executive’s most recent Base Salary.
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Section 4.
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Unauthorized
Disclosure; Non-Solicitation; Non-Competition; Proprietary
Rights .
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4.1. Unauthorized Disclosure
. The Executive agrees and understands that in the
Executive’s position with the Company, the Executive has been
and will be exposed to and has and will receive non-public
information relating to the confidential affairs of the Company and
its affiliates, including, without limitation, technical
information, intellectual property, business and marketing plans,
strategies, customer information, software, other information
concerning the products, promotions, development, financing,
expansion plans, business policies and practices of the Company and
its affiliates and other non-public forms of information considered
by the Company and its affiliates to be confidential and in the
nature of trade secrets (including, without limitation, ideas,
research and development, know-how, technical data, customer and
supplier lists, pricing and cost information and business and
marketing plans and proposals) (collectively, the “
Confidential Information ”). The Executive agrees that
at all times during the Executive’s employment with the
Company, except as may be required for the Executive to discharge
his duties as an officer of the Company, and thereafter, the
Executive shall not disclose such Confidential Information, either
directly or indirectly, to any