VOLT INFORMATION SCIENCES, INC. | ||
(Exact Name of Registrant as Specified in Its Charter)
|
New York | 001-9232 | 13-5658129 | ||||||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) | (I.R.S. Employer Identification No.) |
1065 Avenue of the Americas, New York | 10018 |
(Address of Principal Executive Offices) | (Zip Code) |
(212) 704-2400 | ||
(Registrant's Telephone Number, Including Area Code)
|
Not Applicable | ||
(Former Name or Former Address, if Changed Since Last Report)
|
o
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
o
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
o
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
o
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
VOLT INFORMATION SCIENCES, INC.
|
|||||
Date: | May 16, 2012 | By: |
/s/ James Whitney Mayhew
|
||
James Whitney Mayhew, Senior Vice President and Chief Financial Officer | |||||
Exhibit Number |
|
10.1 | Employment Agreement, dated April 2, 2012 |
1.
|
Term. Subject to Section 4 hereof, the Executive’s employment shall be for a one (1) year term (the “Initial Term”), commencing on the date hereof and expiring on the first anniversary thereof. The Initial Term will automatically renew for successive one-year periods (each, a “Renewal Term”), unless a Party notifies the other Party in writing of its intention not to renew this Agreement at least six (6) months prior to the expiration of the then current Initial Term or Renewal Term, as applicable. Upon non-renewal of this Agreement by the Company at the expiration of the Initial Term or a Renewal Term, the Company shall provide the Executive with the Severance Benefits (as defined in Section 4(e) hereof), subject to and in accordance with Sections 4(e) and 4(f) hereof. The Initial Term and any Renewal Term are hereinafter collectively referred to as the “Term.”
|
2.
|
Position; Duties. The Executive shall serve as the Company’s Senior Vice President for Strategic Planning, or in such other position for the Company or an affiliate thereof as the Company may designate. The Company may change the Executive’s title, duties, work location and/or responsibilities at any time. The Executive shall devote his full business time and best efforts to promoting the interests and business of the company and its affiliates. The Executive shall comply with all lawful rules, policies and procedure of the Company, and the Executive agrees that he shall not engage in any activity which is or may be contrary to the welfare, interests or benefit of the Company, or which is or may be contrary to the business of the Company as conducted now or in the future.
|
3.
|
Compensation. During the Term, the rights of the Executive to compensation and benefits are as follows:
|
|
a.
|
Base Salary. The Company shall pay to the Executive a base salary at the annual rate of $340,000, subject to increase from time to time at the Company’s sole discretion (the “Base Salary”). The Base Salary shall be payable in a manner consistent with the Company’s customary payroll practices for senior executives.
|
|
b.
|
Bonus. The Executive shall be eligible to receive a discretionary bonus during each calendar year in which the Executive is employed with the Company (the “Discretionary Bonus”). Whether a Discretionary Bonus will be awarded to the Executive, and, if awarded, the amount thereof shall be determined at the Company’s sole discretion. If awarded, the Discretionary Bonus for any given calendar year shall be paid to the Executive in a single lump sum payment promptly after the calendar year to which the discretionary bonus relates, but in no event later than December 31 of the year after the calendar year to which the Discretionary Bonus relates.
|
|
Notwithstanding the foregoing, the Executive shall be eligible to receive a one-time Discretionary Bonus, conditioned upon the Executive’s satisfactory performance as Senior Vice President for Strategic Planning and continued active employment with the Company through December 31, 2012 (the “December 2012 Bonus”). Whether the Executive’s performance has been satisfactory will be determined at the sole discretion of the Company, with balanced consideration of the entire breadth of the Executive’s performance. If awarded, the amount of the December 2012 Bonus shall be $60,000. If awarded, payment of the December 2012 Bonus shall be made to the Executive promptly after December 31, 2012, in calendar year 2013. The Executive acknowledges and agrees that the December 2012 Bonus shall not be due or payable to him if his active employment with the Company ceases for any reason prior to December 31, 2012.
|
|
c.
|
Other Benefits. The Executive shall be eligible to receive such fringe benefits regularly provided by the Company to similarly situated senior executive employees, subject to the eligibility requirements, terms and conditions of the Company’s applicable plans and policies, which benefits are subject to change or termination by the Company at any time in its sole discretion, provided that the Company shall not change or terminate any such fringe benefits that are considered to be deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) in a manner that would result in liability under Section 409A of the Code.
|
|
d.
|
Expenses. The Executive shall be reimbursed for all ordinary and necessary business expenses incurred by the Executive in connection with the Executive’s employment, upon timely submission of receipts and other documentation as required pursuant to the Company’s customary expense reimbursement policies and procedures. With regard to reimbursement of expenses that are taxable to the Executive, such reimbursement shall be paid to the Executive in all events on or before the last day of the Executive’s taxable year following the taxable year in which the related expense was incurred. No such payment is subject to liquidation or exchange for another benefit and the amount of expenses that may be covered by such payments in one taxable year shall not affect the amount of expenses that may be covered by such payments in any other taxable year.
|
4.
|
Termination before Expiration of Term. The Executive’s employment hereunder may be terminated prior to the expiration of the Term without any breach of this Agreement under the following circumstances:
|
|
a.
|
Termination by the Executive. The Executive may terminate his employment hereunder at any time for any reason. Should the Executive wish to resign from his position with the Company, the Executive shall give sixty (60) days advance written notice to the Company (“Notice Period”), specifying the date on which his resignation shall become effective. During the Notice Period, the Executive shall cooperate fully with the Company in achieving a smooth transition of the Executive’s duties and responsibilities to such person(s) as the Company may designate. The Company may accelerate the effective date of the Executive’s resignation by giving the Executive prior written notice thereof.
|
|
b.
|
Death. The Executive’s employment hereunder shall terminate upon his death.
|
|
c.
|
Disability. The Company may terminate the Executive’s employment if, in the reasonable judgment of the Company, the Executive is disabled due to a physical or mental illness, injury or incapacity and unable to perform the essential functions of his then existing position or positions under this Agreement, with or without reasonable accommodation, for a period of 180 days (which need not be consecutive) during any period of 12-month period. Nothing in this Section 4(c) shall be construed to waive the Executive rights, if any, under existing law including, without limitation, the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et. seq. and the Americans with Disabilities Act, 42 U.S.C. §12101 et. seq.
|
|
d.
|
Termination by the Company. The Company may terminate the Executive’s employment hereunder at any time, whether or not for Cause. For purposes of this Agreement, “Cause” shall mean: (i) embezzlement by the Executive; (ii) misappropriation by the Executive of funds of the Company; (iii) the Executive’s conviction of, or plea of guilty or nolo contendere to, a felony; (iv)commission by the Executive of any other act of dishonesty which causes material economic harm to the Company; (v) an act of fraud or deceit by the Executive which causes material economic harm to the Company; (vi) a material breach by the Executive of any provision of this Agreement; (vii) willful failure by the Executive to substantially perform his duties hereunder; (viii) the Executive’s willful breach of any fiduciary duty to the Company; or (ix) the Executive’s significant violation of any lawful rule, policy or procedure of the Company or other contractual, statutory or common law duty to the Company.
|
|
No act or failure to act by the Executive shall be deemed willful unless done or omitted to be done by the Executive in bad faith, or without reasonable belief that the Executive’s act or omission was in the Company’s best interests. In the event of a claimed breach of subsections (vi), (vii) or (ix) hereof, the Executive shall have thirty (30) days after written notice from the Company to cure such breach, failure or violation.
|
|
e.
|
Compensation upon Early Termination. If the Executive’s employment with the Company is terminated for any reason, the Company shall pay or provide to the Executive (or to his authorized representative or estate) any earned but unpaid Base Salary, unpaid expense reimbursements and any vested benefits the Executive may have under any employee benefit plan of the Company (the “Accrued Obligations”). If the Executive’s employment is terminated by the Company without Cause as provided in Section 4(d) or as a result of non-renewal by the Company of the Initial Term or a Renewal Term, as applicable, the Company shall pay the Executive the Accrued Obligations; and, as consideration for the Executive’s promises in Section 6 hereof, the Executive shall also receive an amount equal to his Base Salary, together with such medical benefits in which he has been participating as of the date of termination of the Executive’s employment with the Company, or their equivalent, for a period of twenty-four (24) months following the date of termination of the Executive’s employment with the Company (the “Severance Benefits”). For the avoidance of doubt, the Parties agree that such medical benefits may, at the Company’s option, be provided through reimbursement of the premiums incurred by the Executive to continue coverage under the Company’s medical plans pursuant to COBRA, and/or the cost incurred by the Executive to obtain such medical benefits through other means. The Severance Benefits shall be paid to the Executive in the form of salary continuation, in accordance with the Company’s customary payroll cycles and procedures, subject to the Executive’s compliance with Section 4(f) hereof. Any reimbursement of expenses incurred by the Executive to continue medical coverage by means other than COBRA that are taxable to the Executive shall be paid to the Executive in all events on or before the last day of the Executive’s taxable year following the taxable year in which such expense was incurred. No such payment is subject to liquidation or exchange for another benefit and the amount of such expenses that may be covered by such payments in one taxable year shall not affect the amount of such expenses that may be covered by such payments in any other taxable year. Notwithstanding anything to the contrary in this Section 4(e), if the Executive breaches any of the provisions contained in Section 6 of this Agreement, all payments of the Severance Benefits shall immediately cease.
|
|
f.
|
Prior to making any payment of the Severance Benefits pursuant to Section 4(e) hereof, the Company shall have the right to require the Executive to sign, and the Executive hereby agrees to sign and deliver to the Company, a general release of all claims the Executive may have against the Company in a form attached hereto as Exhibit A, and the Company shall withhold payment of the Severance Benefits until the period during which the Executive may revoke such general release has elapsed. Upon timely execution, delivery and non-revocation of such general release, payment of the Base Salary portion of the Severance Benefits shall commence on the Company’s first pay date that occurs on or after the sixtieth (60th) day following the termination of the Executive’s employment with the Company. The Executive further agrees that such agreement shall contain reasonable confidentiality, non-disparagement and cooperation covenants.
|
5.
|
Representations. The Executive represents and warrants that he is not a party to any agreement or instrument which would prevent the Executive from entering into or performing his duties under this Agreement; that he has terminated his employment with all prior employers; and that he will not bring with him to the Company, or use, any confidential information or trade secrets belonging to any prior employer.
|
6.
|
Confidentiality and Restrictive Covenants.
|
|
a.
|
The Executive acknowledges and agrees that (i) the business in which the Company and its Affiliates (as defined below) are engaged is intensely competitive and that by virtue of his employment, the Executive will have access to, and knowledge of, Confidential Information and Trade Secrets (as defined below); (ii) the Company and its Affiliates have expended substantial time, money and resources in the development and preservation of its Confidential Information and Trade Secrets; (iii) the Company and its Affiliates have expended substantial time, money, effort and resources in developing and solidifying their relationships with customers, vendors and business partners, and that the Executive’s compensation hereunder represents consideration, among other things, for the development and preservation of Confidential Information and Trade Secrets and customer, vendor and business partner goodwill, loyalty and contacts for and on behalf of the Company and its Affiliates; (iv) the Company would not employ the Executive absent the Executive’s entry into this Agreement, including the restrictive covenants contained herein; and (v) the Severance Benefits specified in Section 4(e) hereof represents separate and additional consideration for the Executive’s compliance with the covenants contained in Sections 6(f), (g) and (h) hereof if his employment hereunder is terminated without Cause.
|
|
b.
|
For purposes of this Section 6, the following words have the following meanings:
|
|
i.
|
“Affiliate” means the Company and any other entity that, directly or through one or more intermediaries, controls, is controlled by or is under common control with the Company, as determined by the Company.
|
|
ii.
|
“Competitive Business” means any business in any state of the United States in which the Company or its Affiliates operates during the period of the Executive’s employment with the Company that, directly or indirectly, has as a business purpose any operational activity which is or may reasonably be construed to be competitive with the business of the Company or its Affiliates as conducted at any time during the period of employment of the Executive by the Company.
|
|
iii.
|
“Confidential Information” means all information about the Company, its Affiliates, employees, customers, vendors and business partners which is not generally known outside of the Company, which the Executive learns in connection with the Executive’s employment with the Company, and which would be useful to competitors of the Company or, if disclosed to
|
|
Confidential Information does not include any information that was at the time of this Agreement, or subsequently becomes, publicly available through no fault of the Executive.
|
|
iv.
|
“Material Contact” means personal contact or the supervision of the efforts of those who have personal contact with an existing or potential customer or vendor in an effort to create, expand or further a business relationship between the Company or its Affiliate and such existing or potential customer or vendor.
|
|
v.
|
“Trade Secrets” means Confidential Information which meets the additional requirements of the Uniform Trade Secrets Act.
|
|
(c)
|
The Executive agrees that upon termination of the Executive’s employment with the Company, or at such earlier time as the Company may request, he will immediately return to the Company all of the Company’s property (including without limitation, credit cards, computer equipment, computer software, pagers, cellular phones, facsimile machines, any automobile provided by the Company and other equipment) and memoranda, books, papers, plans, information, letters
|
|
d.
|
The Executive covenants and agrees that all information including, without limitation, Confidential Information and Trade Secrets developed or discovered by Executive in connection with the performance of his duties hereunder is and shall remain the sole and exclusive property of the Company, and the Executive hereby assigns to the Company all of his right, title and interest in and to same.
|
|
e.
|
The Executive agrees that during the Term he will only use and disclose the Company’s Confidential Information or Trade Secrets in connection with his duties hereunder. The Executive further agrees that following the cessation of his employment for any reason, other than as required by law or court order, he will not, at any time, directly or indirectly, use, publish, divulge, disseminate or otherwise disclose any Confidential Information or Trade Secrets to any third party without the prior written consent of the Company, which may be withheld in the Company’s sole discretion. Such rights of the Company are in addition to those rights the Company has under the common law or applicable statutes for the protection of Trade Secrets.
|
|
f.
|
The Executive agrees that while employed by the Company and for a period of one (1) year following the date the Executive ceases to be employed by the Company for any reason (the “Restricted Period”), he shall not, whether on his own behalf or on behalf of or in conjunction with any person, business entity or other organization, directly or indirectly employ, engage or retain, or solicit for employment, retention or engagement any person who was a director, officer, employee, independent contractor or consultant of the Company or its Affiliates, or encourage any such person to terminate his or her employment or other relationship with the Company or its Affiliates.
|
|
g.
|
The Executive agrees that during the Restricted Period the Executive will not, directly or indirectly, on the Executive’s own behalf or on behalf of any person, corporation, partnership, venture or other business entity, solicit or accept in competition with the Company and/or its Affiliates, any business from any existing or prospective customers or clients of the Company and/or its Affiliates with whom the Executive had Material Contact at any time during the Executive’s employment with the Company. The Executive acknowledges and agrees that for purposes of this Section 6(g) the Executive shall be deemed to have solicited business in competition with the Company and/or its Affiliates if, during the
|
|
h.
|
The Executive agrees that during the Restricted Period the Executive will not, directly or indirectly, compete with the Company or its Affiliates by owning, operating or working in, as an employee, contractor, consultant, officer, director or agent for any person or entity engaged in, a Competitive Business. Likewise, the Executive will not perform activities of the type which in the ordinary course of business would involve the utilization of Confidential Information or Trade Secrets protected from disclosure in this Agreement. Notwithstanding the foregoing, the Executive may own or hold equity securities (or securities convertible into, or exchangeable or exercisable for, equity securities) of companies or entities that engage in the Business; provided, however, that (i) such equity securities are publicly traded on a securities exchange, and (ii) the Executive’s aggregate holdings of such securities do not exceed at any time one percent (1%) of the total issued and outstanding equity securities of such company or entity.
|
|
i.
|
It is expressly understood and agreed that although the Parties consider the restrictions contained in this Section 6 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
|
|
j.
|
The Executive acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of Section 6 hereof would be inadequate and the Company would suffer irreparable injury as a result of such breach or threatened breach. In recognition of this fact, the Executive agrees that, in the event of such breach or threatened breach, in addition to any remedies the
|
7.
|
Inventions. All discoveries, ideas, creations, inventions and properties (collectively, “Discoveries”), written or oral, which are (a) created, conceived, discovered, developed invented or used by the Executive during the Term, whether or not created, conceived, discovered, developed or invented by the Executive during regular working hours or which are (b) created conceived, discovered, developed invented or used by the Company or its Affiliates, whether or not in connection with the Executive’s employment by the Company, will be the sole and absolute property of the Company and the Company’s applicable Affiliate for any and all purposes whatsoever, in perpetuity. The Executive will not have, and will not claim to have, any right, title or interest of any kind or nature whatsoever in or to any such Discoveries. For the avoidance of doubt, the Executive hereby assigns to the Company all of his right, title and interest in and to same. If any Discoveries, or any portion thereof, is copyrightable, it shall be a “work made for hire,” as such term has meaning in the copyright laws of the United States.
|
|
The previous paragraph shall not apply to any Discoveries (i) for which no equipment, supplies, facility or trade secret information of the Company or any of its Affiliates or any customer of the Company or any affiliates of any customer of the Company was used and which was developed entirely on the Executive’s own time, (ii) which does not relate to the business of the Company or any of its Affiliates or to that of the Company’s customers or any affiliates of any customer of the Company and (iii) which does not result from any work performed for the Company or any of its Affiliates or any customers of the Company or any affiliates of any customer of the Company.
|
|
The Executive further agrees that all Discoveries developed by the Executive during the Term shall be identified to the Company. Upon request by the Company, the Executive shall disclose any such Discoveries to the Company (by a full and clear description) for the purpose of determining the Company’s rights therein and will promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable in order to vest title in such Discoveries in the Company.
|
8.
|
Agreement to Arbitrate Disputes. Subject to Section 6(j), any dispute, controversy or claim arising out of, involving, affecting or related to this Agreement, or breach of this Agreement, or arising out of, involving, affecting or related in any way to the Executive’s employment or the conditions or termination of such employment, shall be resolved by final and binding arbitration pursuant to the Federal Arbitration Act, in accordance with the applicable rules of the American Arbitration Association, as published at www.adr.org, before one neutral arbitrator agreed upon by the Parties to be held in the Borough of Manhattan, City and State of New York or such other place as to which the Parties may agree. The arbitrator shall be entitled to award reasonable attorneys’ fees and costs to the prevailing party. The award shall be in writing, signed by the Arbitrator and shall provide the reasons for the award. Judgment upon the arbitrator’s award may
|
9.
|
Entire Agreement. This Agreement contains all the understandings between the Parties pertaining to the matters referred to herein, and supersedes all undertakings and agreements, whether oral or in writing, previously entered into by them with respect thereto. The Executive represents that, in executing this Agreement, he does not rely and has not relied upon any representation or statement not set forth herein made by the Company with regard to the subject matter, bases or effect of this Agreement or otherwise.
|
10.
|
Successors and Assigns. This Agreement shall not be assignable by Executive. This Agreement may be assigned by the Company to a person or entity which is an affiliate or a successor in interest to substantially all of the business operations of the Company.
|
11.
|
Amendment or Modification; Waiver. No provision of this Agreement may be amended or waived unless such amendment or waiver is agreed to in writing, signed by the Executive and by a duly authorized officer of the Company. No waiver by any party hereto of any breach by another party hereto of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar condition or provision at the same time, any prior time or any subsequent time.
|
12.
|
Notices. Any notices required in connection with this Agreement shall be deemed adequately given only if in writing and personally delivered, or sent by first class, registered, certified mail or overnight courier. Acknowledgment of receipt of an e-mail by the person to whom it is directed shall be considered personal delivery. Notices to the Company shall be directed to the main office of the Company. Notices to the Executive shall be addressed to the Executive’s last known address on file with the Company.
|
13.
|
Severability. Except as otherwise provided in Section 6(i) hereof, if any provision of this Agreement or the application of any such provision to any party or circumstances shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of this Agreement or the application of such provision to such person or circumstances other than those to which it is so determined to be invalid and unenforceable, shall not be affected thereby, and each provision hereof shall be validated and shall be enforced to the fullest extent permitted by law.
|
14.
|
Survival. The respective rights and obligations of the Parties hereunder shall survive any termination of this Agreement to the extent necessary for the intended preservation of such rights and obligations.
|
15.
|
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, except for such New York laws as would require the application of the substantive law of another jurisdiction. Subject to Sections 6(j) and 8 hereof, each Party (i) irrevocably consents and submits to personal jurisdiction and venue in the state and federal courts sitting in the State of New York, County of New York; (ii)
|
16.
|
Headings. All descriptive headings of sections and paragraphs in this Agreement are intended solely for convenience, and no provision of this Agreement is to be construed by reference to the heading of any section or paragraph.
|
17.
|
Withholdings. All payments to the Executive under this Agreement shall be reduced by all applicable withholding required by federal, state or local tax laws.
|
18.
|
Code Section 409A Omnibus Provision. Notwithstanding any other provision of this Agreement, it is intended that payments and benefits under this Agreement comply with Section 409A of the Code or with an exemption from the applicable Code Section 409A requirements and, accordingly, all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes and penalties under Section 409A of the Code. For purposes of this Agreement, all rights to payments and benefits hereunder of deferred compensation subject to Section 409A of the Code shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. For purposes of this Agreement, the Executive will not be deemed to have had a termination of employment unless there has been a “separation from service” within the meaning of Section 409A of the Code. Furthermore, neither the Company nor any of its parents, subsidiaries, divisions, affiliates, directors, officers, predecessors, successors, employees, agents and attorneys shall be liable to the Executive if any amount payable or provided hereunder is subject to any taxes, penalties or interest as a result of the application of Code Section 409A.
|
|
Notwithstanding any provision of this Agreement, if the Executive is a “specified employee” (as defined in Section 409A of the Code and Treasury Regulations thereunder), then payment of any amount under this Agreement that is deferred compensation subject to Section 409A of the Code and the timing of which depends upon termination of employment shall be deferred for six (6) months after termination of the Executive’s employment , as required by Section 409A(a)(2)(B)(i) of the Code (the “409A Deferral Period”). In the event such payments are otherwise due to be made during the 409A Deferral Period, the payments that otherwise would have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum on the first day of the seventh month following termination of the Executive’s employment, and the balance of the payments shall be made as otherwise scheduled.
|
19.
|
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
|
VOLT INFORMATION SCIENCES, INC.
|
||||||
By: | /s/ Louise Ross | |||||
Name: |
Louise Ross
|
|||||
Title: |
Vice President
|
|||||
THE EXECUTIVE
|
||||||
/s/ Ronald Kochman | ||||||
Ronald Kochman
|
||||||
AGREED AND ACCEPTED: | Volt | |
Employee | By: | |
Date | Date: | |