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Exhibit
10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“Agreement”) is amended and restated as of
August 21, 2007, by and between Corinthian Colleges, Inc., a
Delaware corporation (the “Company”), and Jack D.
Massimino (“Employee”).
WITNESSETH:
WHEREAS, the Company and Employee desire
to enter into this Agreement to assure the Company of the
continuing and exclusive service of Employee and to set forth the
terms and conditions of Employee’s employment with the
Company.
AGREEMENT:
NOW, THEREFORE, in consideration of the
mutual promises and covenants set forth herein, the parties agree
as follows:
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TERM. The Company agrees to employ Employee and Employee hereby
accepts such employment, in accordance with the terms of this
Agreement, commencing on the date of the amendment and restatement
of this Agreement (the “Effective Date”) and continuing
for a period of two (2) years hereafter (the
“Term”), subject to earlier termination under
Section 5 or extension of such term as described in the
following sentences. Unless either party has given advanced written
notice to the other party that the Term shall not be extended (or
further extended, as the case may be), then (1) upon the first
anniversary of the Effective Date the Term shall automatically be
extended by an additional year (such that the Term shall be
scheduled to terminate on the third anniversary of the Effective
Date), and (2) upon the second and each successive anniversary
of the Effective Date the Term shall automatically be extended by
an additional year; provided, however , that in no event
shall the Term exceed a period of five (5) years.
Notwithstanding the foregoing, in the event of a Change in Control,
as defined below, during the term of this Agreement, the Term of
this Agreement shall in no event be less than two years and one day
following the Change in Control. Provision of notice that this
Agreement shall not be extended or further extended, as the case
may be, shall not constitute breach of this Agreement or entitle
the Employee to any benefits described in
Section 5. |
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SERVICES AND EXCLUSIVITY OF SERVICES. During the Term of this
Agreement, Employee shall devote Employee’s full business
time, energy and ability exclusively to the business, affairs and
interests of the Company and matters related thereto, shall use
Employee’s best efforts and abilities to promote the
Company’s interests and shall perform the services
contemplated by this Agreement in accordance with policies
established by and under the direction of the Board of Directors of
the Company (the “Board”). |
Employee shall not, directly
or indirectly, during the term of this Agreement render services to
any other person or firm for compensation or engage in any activity
competitive with or adverse to the Company’s business.
Employee may serve as a director or in any other
capacity of any business
enterprise or any nonprofit or governmental entity or trade
association, provided in each case that such service is approved by
the Board. Notwithstanding the foregoing, Employee may make and
manage personal business investments of Employee’s choice and
serve in any capacity with any civic, educational or charitable
organization (other than as a director of such organization,
approval for which may be sought under the immediately preceding
sentence of this Section 2) without seeking the approval of
the Board, provided that such activities and services do not
interfere or conflict with the performance of the duties hereunder
or create any conflict of interest with such duties.
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DUTIES AND RESPONSIBILITIES. Employee shall serve as Chief
Executive Officer of the Company for the Term of this Agreement. In
the performance of Employee’s duties, Employee shall report
directly to the Board of the Company and shall be subject to the
direction of the Board and to such limits on Employee’s
authority as the Board may from time to time impose. During the
term of this Agreement, Employee shall be based at the
Company’s principal executive offices in Orange County,
California. Employee agrees to observe and comply with the rules
and regulations of the Company and agrees to carry out and perform
orders, directions and policies of the Company and its Board as
they may be, from time to time, stated either orally or in writing.
The Company agrees that the duties which may be assigned to
Employee shall be usual and customary duties of the office(s) or
position(s) to which Employee may from time to time be appointed or
elected and shall not be inconsistent with the provisions of the
charter documents of the Company or applicable law. Employee shall
have such corporate power and authority as shall reasonably be
required to enable Employee to perform the duties required in any
office that may be held. |
(a) Base Compensation. During
the term of this Agreement, the Company agrees to pay Employee a
base salary at the annual rate of not less than $800,000, payable
in accordance with the Company’s practices in effect from
time to time (the “Base Salary”).
(b) Additional Benefits.
Employee shall also be entitled to all rights and benefits for
which Employee is otherwise eligible under any bonus plan, Target
Bonus (defined below) arrangement, incentive agreement (including
stock options and/or other awards granted pursuant to the
Company’s 2003 Performance Award Plan and any successor
plans), participation or extra compensation plan, pension plan,
profit-sharing plan, life, medical, dental, disability, or
insurance plan (including, except as otherwise prohibited therein,
the Company’s Employee Stock Purchase Plan) or policy or
other plan or benefit that the Company may provide for Employee or
(provided Employee is eligible to participate therein) for Peer
Employees (defined as all employees who have the title of Executive
Vice President of the Company or above, other than the founders of
the Company) or for employees of the Company generally, as from
time to time in effect, during the term of this Agreement
(collectively, all of the above shall be referred to as the
“Additional Benefits”). In addition to the Base Salary,
Employee shall be eligible to earn, for each fiscal year of
Company, a target
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annual incentive bonus equal
to 115% of his Base Salary (“Target Bonus”), which
bonus shall be based on achieving targeted performance goals as
determined by Compensation Committee.
(c) Periodic Review. The
Compensation Committee of the Board shall review Employee’s
Base Salary and Additional Benefits then being paid to Employee not
less frequently than every twelve months. Following such review,
the Company may in its discretion increase (but shall not be
required to increase) the Base Salary or any other benefits, but
may not decrease the Base Salary and Target Bonus during the time
Employee serves as Chief Executive Officer; provided, however, that
if the Company undertakes any generalized salary reductions of Peer
Employees, the Company may reduce Employee’s Base Salary and
Target Bonus by a percentage equal to the percentage base salary
and target bonus reductions effected for all other Peer Employees
of the Company.
(d) Perquisites. Employee
shall be entitled to not less than three weeks paid vacation each
twelve-month period (or such larger amount of paid vacation as is
generally granted to employees of the Company based on time of
service with the Company), which shall accrue on a pro rata basis
from the Effective Date of this Agreement. Vacation time will
continue to accrue so long as Employee’s total accrued
vacation does not exceed two times (2x) the then-current rate
of annual vacation accrual of the Employee (the “Vacation
Accrual Cap”). Should Employee’s accrued vacation time
reach the Vacation Accrual Cap, Employee will cease to accrue
additional vacation until Employee’s accrued vacation time
falls below the Vacation Accrual Cap. Except with respect to the
rate of vacation accrual set forth above, all vacation time shall
be subject to the plans, policies, programs and practices as in
effect generally with respect to other Peer Employees of the
Company.
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TERMINATION. This Agreement and all obligations hereunder
(except the obligations contained in Sections 8, 9, 10 and 11
(Confidential Information, Non-Competition, Non Solicitation of
Employees and Indemnity) which shall survive any termination
hereunder) shall terminate upon the earliest to occur of any of the
following: |
(a) Voluntary Termination.
Subject to Section 5(e) below, the voluntary termination by
Employee or retirement from the Company in accordance with the
normal retirement policies of the Company.
(b) Death or Disability of
Employee. Employee’s employment shall be terminated upon the
death or Disability (as defined below) of Employee. In such
instance, except as set forth below, all obligations hereunder to
Employee (or Employee’s heirs or legal representatives) shall
cease, other than for payment of the sum of
(A) Employee’s Base Salary through the date of
termination to the extent not theretofore paid, (B) pro rata
portion of the Target Bonus calculated as of the date of
termination and any other amount earned through the date of
termination pursuant to another cash compensation agreement, and
(C) any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the amounts described in clauses (A),
(B), and (C) shall be hereinafter referred to as the
“Accrued Obligations”), which
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shall be paid to Employee or
Employee’s estate or beneficiary, as applicable, in a lump
sum in cash within 30 days after the date of termination or any
earlier time required by applicable law. Notwithstanding the
foregoing, if Employee is determined by the Company to be a
specified employee (as defined in Section 409A(a)(2)(B) of the
Internal Revenue Code of 1986, as amended (the “Code”)
and determined pursuant to related Treasury Regulations or other
guidance promulgated thereunder) and if required under
Section 409A of the Code, the Accrued Obligations shall be
paid on the first day of the seventh month following the
termination of employment. For the purposes of this Agreement,
Disability shall mean that Employee is either (1) unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (2) by reason
of any medically determinable physical or mental impairment that
can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than three months
under an accident and health plan covering employees of the
Company. For purposes of this Agreement, Employee shall be deemed
Disabled if determined to be totally disabled by the Social
Security Administration. Employee shall also be deemed Disabled if
determined to be disabled in accordance with the applicable
disability insurance program of the Company, provided that the
definition of “disability” applied under such
disability insurance program complies with the requirements of this
Section. The termination of this Agreement due to the death or
Disability of Employee shall have no effect on the rights and
obligations of Employee (or his personal representative or
beneficiary, as the case may be) with respect to stock options or
other rights granted under the Company’s 2003 Performance
Award Plan, as amended, or the Company’s Employee Stock
Purchase Plan, or any successor plans all of which rights and
obligations shall be governed solely and exclusively by the
applicable terms and conditions of such plans and the agreements
issued thereunder.
(c) Cause. The Company may
terminate Employee’s employment and all of Employee’s
rights to receive Base Salary and any Additional Benefits hereunder
for Cause. For purposes of this Agreement, the term
“Cause” shall be defined as any of the following;
provided, however, that the Company must determine the presence of
such Cause in good faith:
(i) Willful misconduct by
Employee which materially and demonstrably injures the Company,
including (1) Employee’s material breach of any material
duties and responsibilities under this Agreement (other than as a
result of incapacity due to Employee’s Disability),
(2) Employee’s commission of a material act of fraud
upon the Company or (3) Employee’s immoderate use of
alcoholic beverages or narcotics or other substance
abuse;
(ii) Employee willfully
engaging in conduct specifically prohibited by the Company’s
written policies, including, without limitation, unlawful
harassment of any other Company employee.
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(iii) Employee’s
conviction by, or entry of a plea of guilty or nolo contendere in,
a court of competent and final jurisdiction for a felony or any
crime which materially adversely affects the Company and/or its
reputation in the community and which involves moral turpitude or
is punishable by imprisonment in the jurisdiction
involved.
For purposes of this
Section 5, no act or failure to act on the part of Employee
shall be considered “willful” unless done, or omitted
to be done, by Employee in bad faith and without reasonable belief
by Employee that such action or omission was in the best interest
of the Company. Notwithstanding the foregoing, Employee shall not
be terminated for Cause pursuant to clauses (i), (ii) and
(iii) of this Section 5(c) unless and until Employee has
received notice of a proposed termination for Cause and Employee
has had an opportunity to be heard before at least a majority of
members of the Board.
(d) Without Cause.
Notwithstanding any other provision of this Section 5, the
Company shall have the right to terminate Employee’s
employment with the Company without Cause at any time, but in the
event of such termination without Cause and subject to the
satisfaction of the condition in Section 5.7(f), Employee
shall be entitled to receive a lump sum payment equal to the
following: (A) one times (1x) the value of
Employee’s Base Salary in effect as of the date of such
termination, plus (B) one times (1x) Employee’s
Target Bonus in effect as of the date of such termination
(hereinafter such aggregate amount shall be referred to as the
“Lump Sum Payment”). Such Lump Sum Payment to Employee
shall be paid to Employee within 60 days of the date of such
termination. Notwithstanding the foregoing, if Employee is
determined by the Company to be a specified employee (as defined in
Section 409A(a)(2)(B) of the Code and determined pursuant to
related Treasury Regulations or other guidance promulgated
thereunder) and if required under Section 409A of the Code,
the Lump Sum Payment shall be paid on the first day of the seventh
month following the termination of employment.
(e) Good Reason. Employee may
terminate his employment with the Company for Good Reason within
two years following the initial existence of Good Reason. In the
event that Employee fails to terminate his employment within such
period but Employee’s employment under this Agreement in fact
terminates at the initiation of Employee, such termination shall be
deemed a termination by Employee without Good Reason. Regardless of
whether a resignation occurs prior to, coincident with or after a
“Change in Control,” “Good Reason” shall
mean any one or more of the following:
(i) An involuntary material
diminution in Employee’s Base Salary.
(ii) An involuntary material
diminution in Employee’s authority, duties, or
responsibilities. An involuntary material diminution in
Employee’s authority, duties, or responsibilities shall not
have occurred if Employee agrees to cease being the Chief Executive
Officer of the Company and agrees to remain on the
Board.
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(iii) An involuntary material
diminution in the authority, duties, or responsibilities of the
supervisor to whom Employee is required to report, including a
requirement that Employee report to a corporate officer or employee
instead of reporting directly to the Board.
(iv) An involuntary material
diminution in the budget over which Employee retains
authority.
(v) A 100 mile or greater
change in the geographic location at which Employee must perform
his services following a Change in Control, as defined below. Any
change in the geographic location at which Employee must perform
his services prior to a Change in Control shall not be Good
Reason.
(vi) Any other action or
inaction that constitutes a material breach of the
Agreement.
Employee must give the
Company written notice which shall identify with reasonable
specificity the grounds for Good Reason within 90 days of the
initial existence of Good Reason, upon the notice of which the
Company shall have 30 days to cure the alleged grounds for Good
Reason contained in the notice. In the event Employee fails to
notify the Company of the existence of Good Reason within such 90
day period but Employee’s employment under this Agreement in
fact terminates at the initiation of Employee, such termination
shall be deemed a termination by Employee without Good Reason. If
Employee terminates his employment with the Company for Good
Reason, then subject to the satisfaction of the condition in
Section 5.7(f), Employee shall be entitled to receive a Lump
Sum Payment equal to that which would be paid to Employee under
Section 5(d) hereof within 60 days following the termination
of employment. Notwithstanding the foregoing, if Employee is
determined by the Company to be a specified employee (as defined in
Section 409A(a)(2)(B) of the Code and determined pursuant to
related Treasury Regulations or other guidance promulgated
thereunder) and if required under Section 409A o
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