UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 17, 2015

On Assignment, Inc.
(Exact name of registrant as specified in its charter)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Delaware
 
000-20540
 
95-4023433
(State or other jurisdiction
of incorporation or organization)
 
(Commission
File Number)
 
(I.R.S. Employer
Identification No.)
26745 Malibu Hills Road
Calabasas, CA 91301
(Address, including zip code, of Principal Executive Offices)
Registrant's telephone number, including area code: (818) 878-7900

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

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))
 
 
 
 
 
 





 
 
Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(e)    On November 17, 2015, On Assignment, Inc. (the “Company”) entered into a Second Amended and Restated Senior Executive Agreement with Peter T. Dameris, its Chief Executive Officer, which is effective as of December 31, 2015 and amends Mr. Dameris’ employment agreement with the Company dated December 13, 2012 (as amended and restated, the “Employment Agreement”). In addition, the Company entered into a Second Amended and Restated Executive Change of Control Agreement with Mr. Dameris effective December 31, 2015, which amends Mr. Dameris’ change of control agreement with the Company dated December 11, 2008 (as amended and restated, the “Change of Control Agreement” and, together with the Employment Agreement, the “Amended Agreements”).

Some of the key differences between the Amended Agreements and the original employment agreement and change of control agreement are:

•
Mr. Dameris will no longer be entitled to a modified single trigger change of control arrangement, however he will be entitled to payments and benefits under his Change of Control Agreement upon a qualifying termination that occurs within 18 months (rather than six months and 10 business days) following the change of control.

•
Equity awards granted to Mr. Dameris after November 17, 2015 will be subject to double-trigger (rather than single-trigger) accelerated vesting.

•
Under the Amended Agreements, Mr. Dameris will no longer be eligible to receive severance payments and benefits upon a Company non-renewal of the term of the Employment Agreement.

•
Mr. Dameris will no longer be entitled to a Section 280G excise tax gross-up on payment and benefits payable in connection with a change of control of the Company, and instead will be subject to a “best pay cap.”

•
The term of the Employment Agreement will end on December 31, 2019 (subject to Mr. Dameris’ continued employment), with automatic one-year renewals thereafter. In addition, the Employment Agreement increases Mr. Dameris’ annual base salary to $926,000, and he will be eligible to earn a target annual bonus of at least 100% of his annual base salary, with a maximum bonus opportunity of 200% of his annual base salary.

•
For each of 2016 through 2019, Mr. Dameris will be eligible to receive generally the same Tranche A, B and C long-term incentive awards (as defined in the Employment Agreement) that he received under his prior employment agreement, with the exceptions that the maximum amount of the Tranche B award was increased by a total of $300,000, and the $500,000 value Tranche C award was annualized. The performance targets, vesting and value of the awards otherwise remain the same for the Tranche A, B and C awards:

•
In connection with entering into the Employment Agreement, in January 2016 the Company will award Mr. Dameris an RSU grant having a value of $800,000 (the “Additional RSU Award”), with one-fourth of the award vesting on January 2 of each of the four years following the year of grant, subject to the Company’s achievement of positive adjusted EBITDA in 2016 and Mr. Dameris’ continued employment through the applicable vesting date. In addition, the Additional RSU Award will vest in full upon a termination of Mr. Dameris’ employment due to his death, disability or a termination without cause.

The above summary of the terms of the Employment Agreement and Change of Control Agreement are qualified in their entirety by reference to the agreements, copies of which are attached hereto as Exhibit 10.1 and 10.2, respectively, and are incorporated in this Item 5.02 by reference.





Item 9.01 Financial Statements and Exhibits

(d)    Exhibits
 
 
10.1
Second Amended and Restated Senior Executive Agreement between On Assignment, Inc. and Peter T. Dameris, dated November 17, 2015
10.2
Second Amended and Restated Change of Control Agreement between On Assignment, Inc. and Peter T. Dameris, dated November 17, 2015
  






SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


 
 
 
 
 
 
 
 
 
 
 
 
 
On Assignment, Inc.
 
 
Date: November 23, 2015
/s/ Jennifer Hankes Painter
 
Jennifer Hankes Painter
 
SVP, Chief Legal Officer and Secretary











SECOND AMENDED AND RESTATED SENIOR EXECUTIVE AGREEMENT
 
THIS SECOND AMENDED AND RESTATED SENIOR EXECUTIVE AGREEMENT (the “Agreement”) by and between ON ASSIGNMENT, INC., a Delaware corporation (the “Company”) and PETER T. DAMERIS (“Executive”) is entered into on November 17, 2015. This Agreement amends and restates the Original Agreement (as defined below) and is effective as of the Amended Effective Date (as defined below).
 
RECITALS
 
A.     The Company and Executive previously entered into that certain Amended and Restated Senior Executive Agreement (the “Original Agreement”), dated December 13, 2012 and effective December 31, 2012, pursuant to which Executive currently serves as the Chief Executive Officer and President of the Company.
 
B.      The Company and Executive wish to enter into an amended and restated agreement, effective December 31, 2015 (the “Amended Effective Date”) pursuant to which Executive will continue his employment as the Chief Executive Officer and President of the Company under the terms and conditions set forth herein.

C.    As of the Amended Effective Date, the Original Agreement shall be superseded by this Agreement.

D.    Certain definitions are set forth in Section 4 of this Agreement.
 
AGREEMENT
 
The parties hereto agree as follows:
 
1.    Employment.  The Company hereby engages Executive to continue to serve as the Chief Executive Officer and President of the Company, and Executive agrees to continue to serve the Company, during the Service Term (as defined in Section 1(f) hereof) in the capacities, and subject to the terms and conditions, set forth in this Agreement.
 
(a)    Services.  During the Service Term, Executive, as Chief Executive Officer and President of the Company, shall have all the duties and responsibilities customarily rendered by Chief Executive Officers and Presidents of companies of similar size and nature and as may be reasonably assigned from time to time by the Board (as defined below). Executive will report directly to the Board. Executive will devote his best efforts and substantially all of his business time and attention (except for vacation periods and periods of illness or other incapacity) to the business of the Company and its Affiliates (as defined below). Notwithstanding the foregoing, and provided that such activities do not interfere with the fulfillment of Executive’s obligations hereunder, Executive may (i) serve as an officer, director or trustee of any charitable or non-profit entity; (ii) own a passive investment in any private company and own up to 5% of the outstanding voting securities of any public company; or (iii) with the prior approval of the Board, serve as a director of up to two other companies so long as such companies do not compete with the Company and Executive notifies the Board in advance of accepting any such position. Unless the Company and Executive agree to the contrary, Executive’s place of employment shall be at the Company’s principal executive offices in Calabasas, California; provided, however, that Executive shall be permitted under the terms of this Agreement, upon conditions approved by the Board, to relocate his principal residence to Texas and to

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perform his duties and responsibilities under this Agreement from such location and commute from time to time to the Company’s principal executive offices so long as such relocation does not materially interfere with Executive’s satisfactory performance of his duties and responsibilities under this Agreement and, provided, further, that Executive will travel to such other locations as may be reasonably necessary in order to discharge his duties and responsibilities hereunder. Executive shall have the right to attend all meetings of the Board and will be nominated for election as a director for each term for which he is eligible to serve during the Service Term.

(b)    Salary, Bonus and Benefits.
 
(i)    Salary and Bonus. During the Service Term, effective from and after January 1, 2016, the Company will pay Executive a base salary (the “Annual Base Salary”) as the Board may designate from time to time, at the rate of not less than $926,000 per annum, payable in accordance with the Company’s normal payroll practices; provided, however, that the Annual Base Salary shall be subject to review by the Board for upward increases (but not decreases) annually during the first quarter of each calendar year of the Service Term, with any such upward increases having retroactive effect to January 1 of the year to which such increases apply. With respect to calendar year 2016 and each calendar year thereafter during the Service Term, Executive will be eligible to receive an annual bonus (the “Annual Bonus”), based on a target bonus opportunity equal to at least 100% of Executive’s Annual Base Salary and a maximum bonus opportunity of 200% of Executive’s Annual Base Salary, as determined by the Compensation Committee of the Board (the “Compensation Committee”) based upon the Company’s achievement of applicable performance goals to be determined by the Compensation Committee. The Annual Bonus, if any, shall be due and payable to Executive, in cash, on or prior to March 15 of the year immediately following that in which such annual bonus is earned (for the avoidance of doubt, this deadline is intended to comply with the “short-term deferral” exemption from the application of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)).
 
(ii)    Benefits.  During the Service Term, Executive shall be entitled to participate in and shall receive all benefits under pension benefit plans provided by the Company (including without limitation participation in any Company incentive, savings and retirement plans, practices, policies and programs) to the extent applicable generally to other peer executives of the Company.  In addition, during the Service Term, Executive and/or Executive’s family shall be entitled to participate and shall receive all benefits under welfare plans provided by the Company (including without limitation medical prescriptions, dental, disability, employee life, group life, accidental life and travel accident insurance plans and plans) to the extent and on the same basis applicable generally to other peer executives of the Company.  Executive shall be reimbursed for customary travel and other expenses, subject to standard and reasonable documentation requirements.  In addition, Executive will receive a stipend of $450 per month for lease of an automobile and other related expenses during the Service Term, payable in equal monthly increments during the Service Term.  Executive shall be entitled to vacation according to the vacation policy in place for other senior executives of the Company.
 

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(iii)    Long-Term Incentive Awards. During the Service Term, Executive shall be eligible to receive grants of awards identified in this Section 1(b)(iii) (the “LTIP Awards”) at the times and subject to the terms and conditions set forth below. Each LTIP Award shall be subject to the terms and conditions of the applicable incentive plan pursuant to which such LTIP Award is granted and shall be set forth in an award agreement between Executive and the Company (each such agreement, an “Award Agreement”).

(A)     Tranche A Awards. No later than the ninetieth day of each of calendar years 2016, 2017, 2018 and 2019, subject to Executive’s continued employment with the Company through the applicable grant date (subject to Section 1(b)(iii)(E)(3) below) and approval by the Committee, the Company shall grant to Executive performance-vesting restricted stock units (“Tranche A RSUs”) with respect to a number of shares of the Company’s common stock having a fair market value equal to $800,000, determined by dividing $800,000 by the closing price of the Company’s common stock on the first trading day of the calendar year in which the respective Tranche A RSU award is granted.   The performance period applicable to each Tranche A RSU award shall be the calendar year during which the respective Tranche A RSU award is granted, and each Tranche A RSU award shall (1) vest in full on January 2 of the year immediately following the grant year, subject to continued employment through such date, upon the Company attaining positive Adjusted EBITDA over the calendar year during which the respective Tranche A RSU award is granted and (2) be paid within sixty (60) days after vesting. Consistent with the foregoing, the terms and conditions of each award of Tranche A RSUs, including the applicable vesting and share delivery conditions, shall be set forth in an RSU Award Agreement to be entered into by the Company and Executive which shall evidence the grant of each award of Tranche A RSUs (the “Tranche A RSU Agreements”). Each award of Tranche A RSUs shall, subject to the provisions of this Section 1(b)(iii)(A), be governed in all respects by the terms of the applicable Tranche A RSU Agreement and the applicable equity incentive plan.

(B)     Tranche B Awards. No later than the ninetieth day of each of calendar years 2016, 2017, 2018 and 2019, and subject to Executive’s continued employment with the Company through the applicable grant date (subject to Section 1(b)(iii)(E)(3) below) and approval by the Committee, the Company shall grant to Executive performance-vest restricted stock units (“Tranche B RSUs”) with respect to a target number of shares of the Company’s common stock having a fair market value equal to $2,300,000 and a maximum number of shares of the Company’s common stock having a fair market value of $3,450,000, determined by dividing $2,300,000 and $3,450,000, respectively, by the closing price of the Company’s common stock on the first trading day of the calendar year in which the respective Tranche B RSU award is granted.   The performance period applicable to each Tranche B RSU award shall be the calendar year during which the respective Tranche B RSU award is granted. Each Tranche B RSU award shall vest, subject to continued employment, in substantially equal installments on January 2 of each of the year immediately following the grant year and the first and second anniversaries thereof, and shall be paid within sixty (60) days after the applicable vesting date. Consistent with the foregoing, the terms and conditions of each award of Tranche B RSUs, including the applicable vesting and share delivery conditions, shall be set forth in an RSU Award Agreement to be entered into by the Company and Executive which shall evidence the grant of each award of Tranche B RSUs (the “Tranche B RSU Agreements”). Each award of Tranche B RSUs shall, subject to the provisions of this Section 1(b)(iii)(B), be governed in all respects by the terms of the applicable Tranche B RSU Agreement and the applicable equity incentive plan.


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(C)    Tranche C Awards. Subject to Executive’s continued employment with the Company through the applicable grant date and further subject Section 1(b)(iii)(E)(3) below, the Company shall make the following grants of additional performance awards to Executive under an applicable Company equity incentive plan (the “Tranche C Grants”): During the first ninety days of each of calendar years 2016, 2017, 2018 and 2019, the Company shall grant to Executive a Tranche C Grant, providing the opportunity to earn up to $500,000, payable as soon as practicable after the January 2 of the year immediately following the applicable grant year, but in no event later than March 15 of the year immediately following the applicable grant year.
Notwithstanding the foregoing, payment or settlement of Tranche C Grants, if applicable, may be accelerated as provided in Section 1(b)(iii)(D) and (E) below. Subject to the foregoing requirements, Tranche C Grants shall be paid at the time of settlement, to the extent earned, in either (i) fully vested, freely transferable shares of Company common stock (subject to limitations on transfer imposed under applicable law) or (ii) if insufficient shares remain under the applicable equity incentive plan at the time of settlement to pay any earned portion of a Tranche C Grant in shares of Company common stock, then such portion of the Tranche C Grant shall instead be paid in cash. Upon or prior to making the applicable grant, the Company and Executive shall determine by mutual agreement the performance criteria applicable to the vesting of Tranche C Grants (selected from performance criteria enumerated in an applicable equity incentive plan) and the Compensation Committee shall, in consultation with Executive, establish in writing performance goals applicable to each Tranche C Grant based on such performance criteria and determined by reference to the twelve-month performance period beginning on January 1 of the year of grant. Each Tranche C Grant shall vest, subject to Sections 1(b)(iii)(D) and (E) below, on January 2 of the year immediately following the year in which such Tranche C Grant is made, subject to Executive’s continued employment through such date, in each case, as to (i) no portion of the award if the applicable performance goals are attained at less than 90% of target, (ii) 80% of the award if the applicable performance goals are attained at 90% of target, (iii) 100% of the award if the applicable performance goals are attained at or above 110% of target, and (iv) a linear pro ration between 80% – 100% of the award if the applicable performance goals are attained between 90% – 110% of target (for example, a Tranche C Grant shall vest as to 95% of the award upon attainment of 105% of the applicable target).

(D)     Additional RSU Award. On January 4, 2016, subject to Executive’s continued employment with the Company through the applicable grant date and approval by the Committee, the Company shall grant to Executive performance-vesting restricted stock units (“Additional RSU Award”) with respect to a number of shares of the Company’s common stock having a fair market value equal to $800,000, determined by dividing $800,000 by the closing price of the Company’s common stock on January 4, 2016.   The Additional RSU Award shall vest in substantially equal installments on January 2 of calendar years 2017, 2018, 2019 and 2020, subject to Executive’s continued employment through the applicable vesting date and the Company’s attainment of positive Adjusted EBITDA over calendar year 2016. In addition, the Additional RSU Award shall vest in full upon a termination of Executive’s employment due to his death or Disability or due to a termination by the Company without Cause. Consistent with the foregoing, the terms and conditions of the Additional RSU Award, including the applicable vesting and share delivery conditions, shall be set forth in an Award Agreement to be entered into by the Company and Executive which shall evidence the grant of the Additional RSU award. The Additional RSU Award shall, subject to the provisions of this Section 1(b)(iii)(D), be governed in all respects by the terms of the applicable Award Agreement and the applicable equity incentive plan.

    

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(E)        Termination of Employment. Each long-term incentive award granted pursuant to Section 1(b)(iii) of the Original Agreement (the “Prior Awards”) that remains outstanding as of Executive’s termination of employment shall be governed by the terms and conditions of the applicable award agreement and the Original Agreement. The following provisions shall govern the LTIP Awards in the event of Executive’s termination of employment:

(1)     Termination Without Cause, for Good Reason or Due to Death or Disability. If Executive’s employment with the Company terminates due to his death or Disability or due to a termination by the Company without Cause or by Executive for Good Reason (each as defined below and each, a “Qualifying Termination”), subject to Section 1(g) below, this Section 1(b)(iii)(E)(1) shall govern the Tranche C Grants, and each Tranche A RSU award and Tranche B RSU award shall be governed by the terms and conditions set forth in the applicable Award Agreement. Tranche C Grants that have vested but have not been settled or paid as of the date of a Qualifying Termination shall be settled or paid as soon as practicable after the January 2 immediately following the Date of Termination, but in no event later than the March 15 immediately following such Date of Termination. Tranche C Grants that have not vested as of the Date of Termination shall remain outstanding and eligible to vest upon the January 2 immediately following the Date of Termination (without the requirement of continued employment beyond such termination) and shall vest on a pro-rated basis upon and be paid as soon as practicable after such January 2 (but in no event later than the March 15 immediately following such Date of Termination), in a manner determined by multiplying amounts that would be earned under such Tranche C Grant based solely on attainment of the applicable performance objectives by a fraction, the numerator of which equals the number of days Executive was employed by the Company from January 1 of the applicable year of grant through the Date of Termination, and the denominator of which equals 365.

(2)    Termination for Cause; Resignation Other Than for Good Reason. If Executive’s employment is terminated by the Company for Cause or due to Executive’s resignation other than for Good Reason, (a) all Tranche C Grants that have not vested as of the Date of Termination shall terminate, (b) all Tranche C Grants that have vested prior to the Date of Termination, but have not been settled or paid as of the Date of Termination (if applicable), subject to Section 1(g) below, shall be settled or paid as soon as practicable after the January 2 immediately following the Date of Termination, but in no event later than the March 15 immediately following the Date of Termination and (c) the Additional RSU Award and each Tranche A RSU award and Tranche B RSU award shall be governed by the terms and conditions set forth in the applicable Award Agreement.
(3)    Termination of Employment Prior to Grant. If, during the first ninety (90) days of any calendar year in which Executive is entitled to receive a LTIP Award in accordance with Section 1(b)(iii)(A)--(D) above, Executive experiences a Qualifying Termination occurring prior to the date in such calendar year on which any such LTIP Award would otherwise be granted, the LTIP Awards to which Executive is entitled for such calendar year shall instead be granted to Executive as of no later than immediately prior to such Qualifying Termination and shall be administered in accordance 1(b)(iii)(E)(1) above. Except as expressly provided in the immediately preceding sentence, any LTIP Awards that have not been granted as of the Date of Termination shall be forfeited and Executive shall have no further rights or interests in respect of such un-granted LTIP Awards.
(4)    Forfeiture of Awards. All Tranche C Grants that have not vested in the case of a Qualifying Termination in which such Tranche C Grants remain unvested as of the January 2 following the Date of Termination (after taking into consideration any vesting that may occur upon or following the Date of Termination as provided above or under any other agreement between Executive and Company), shall terminate as of such January 2, and, in all cases, shall be canceled without payment of consideration therefor. Following settlement or payment of any vested Tranche C Grants, if applicable, such

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awards shall terminate and Executive shall have no further rights or interests in respect of such awards. In addition, each Tranche A RSU award and Tranche B RSU award shall be governed by the terms and conditions set forth in the applicable Award Agreement.

                
(F)    Employment Taxes. Notwithstanding anything contained herein to the contrary, to the extent that any compensation payable hereunder, including without limitation, under any of the LTIP Awards, constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A, the payment of any such compensation may be accelerated, as determined by the Company, to the greatest extent permitted under Treasury Regulation 1.409A-3(j)(4)(vi) to pay any taxes imposed under the Federal Insurance Contribution Act (“FICA”) on such compensation or under Code Section 3401 or corresponding withholding provisions of applicable state, local or foreign tax laws as income tax obligations arising in connection with any such acceleration, including any additional taxes attributable to pyramiding wages and taxes, provided, that the total of any such accelerated payment shall not exceed the applicable FICA and income tax obligations to which such accelerated payments relate.

(G)    Payment Dates. With respect to any payment under an LTIP Award that may be made by its terms over a range of dates, the Company shall determine the exact date of payment in its sole discretion and the Executive shall not be able to directly or indirectly designate the calendar year of such payment.

(c)    Termination.
 
(i)     Events of Termination.  Executive’s employment with the Company shall cease upon:
 
(A)Executive’s death.
 
(B)    Executive’s voluntary retirement.
 
(C)    Executive’s “Disability” which means Executive has become disabled within the meaning of Code Section 409A.
 
(D)        Termination by the Company by the delivery to Executive of a written notice from the Board or the CEO that Executive has been terminated (“Notice of Termination”) with or without Cause.  “Cause” shall mean:
 
(1)    Executive’s (aa) conviction of a felony; (bb) Executive’s commission of any other material act or omission involving dishonesty or fraud with respect to the Company or any of its Affiliates or any of the customers, vendors or suppliers of the Company or its Subsidiaries; (cc) Executive’s misappropriation of material funds or assets of the Company for personal use; or (dd) Executive’s engagement in unlawful harassment or other discrimination with respect to the employees of the Company or its Subsidiaries;
 
(2)     Executive’s continued substantial and repeated neglect of his duties, after written notice thereof from the Board, and such neglect has not been cured within thirty (30) days after Executive receives notice thereof from the Board;
 

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(3)    Executive’s gross negligence or willful misconduct in the performance of his duties hereunder that is materially and demonstrably injurious to the Company;
 
(4)    Executive’s engaging in conduct constituting a breach of Sections 2 or 3 hereof that is not cured in full within fifteen (15) days, and is materially and demonstrably injurious to the Company, after  notice of default thereof, from the Company, as determined by a court of law.

In order for the termination to be effective: Executive must be notified in writing (which writing shall specify the cause in reasonable detail) of any termination of his employment for Cause.  Executive will then have the right, within ten days of receipt of such notice, to file a written request for review by the Company.  In such case, Executive will be given the opportunity to be heard, personally or by counsel, by the Board and a majority of the Directors must thereafter confirm that such termination is for Cause.  If the Directors do not provide such confirmation, the termination shall be treated as other than for Cause.  Notwithstanding anything to the contrary contained in this paragraph, Executive shall have the right after termination has occurred to appeal any determination by the Board that such termination was for “Cause” in accordance with the provisions of Section 8(f) hereof.

(E)           Executive’s voluntary resignation by the delivery to the Company and the Board of at least thirty (30) days written notice from Executive that Executive has resigned with or without Good Reason.  “Good Reason” shall mean Executive’s resignation from employment with the Company after the occurrence of any one of the following:
 
(1)the failure of the Company to pay an amount owing to Executive in breach of this Agreement; or
 
(2)    without Executive’s consent, a relocation of Executive’s principal work location from the Calabasas, California metropolitan area that constitutes a material change in the geographic location at which he must perform services under this Agreement (within the meaning of Code Section 409A);

provided, that Executive’s resignation shall only constitute a resignation for “Good Reason” hereunder if (I) Executive provides the Company with written notice setting forth in reasonable detail the facts or circumstances constituting Good Reason within thirty (30) days after Executive becomes reasonably aware of the existence of such facts and circumstances, (or reasonably aware that there is a controversy between the Company’s interpretation of any payment obligation or principal work location requirement of this Agreement and the Executive’s interpretation of same), (II) the Company has failed to cure such facts or circumstances within thirty (30) days after receipt of such written notice, and (III) the date of Executive’s “separation from service” (within the meaning of Code Section 409A(a)(2)(A)(i), and Treasury Regulation Section 1.409A-1(h)) (“Separation from Service”) occurs no later than thirty-five (35) days after Executive gives notice of the event constituting Good Reason.
 
The delivery by Executive of notice to the Company that he does not intend to renew this Agreement as provided in Section 1(f) shall constitute a resignation by Executive without Good Reason unless such notice fulfills the requirements of Section 1(c)(i)(E)(1) or (2) above.

For the avoidance of doubt, in no event shall Executive’s ceasing to serve as the President of the Company, whether voluntarily or involuntarily, constitute Good Reason.
 

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(ii)           Date of Termination.  “Date of Termination” means the date on which Executive experiences a Separation from Service.
 
(iii)         Rights on Termination.
 
(A)     In the event that termination is by the Company without Cause (including by operation of the last paragraph of Section 1(c)(i)(D) above) or by Executive with Good Reason and Executive experiences a Separation from Service as a result of such termination, subject to Section 1(g) below:

(1)    The Company will pay Executive (i) an amount equal to 150% of the Annual Base Salary, payable over a period of eighteen (18) months commencing on the Date of Termination (the “Severance Period”) in substantially equal installments in accordance with Company payroll procedures applicable to senior executives of the Company, as in effect from time to time (but no less often than monthly), provided, that payment of the amounts described in this Section shall not commence until the Company’s first payroll date occurring on or after the 30th day following the Date of Termination (the “First Payroll Date”) and any amounts that would otherwise have been paid prior to the First Payroll Date shall instead be paid on the First Payroll Date, and (ii) a lump sum cash amount, payable on the First Payroll Date, equal to the aggregate premiums that the Company would have paid for basic life insurance, accidental death and dismemberment insurance and long- and short-term disability insurance, each as in effect on the Date of Termination, had Executive remained employed by the Company during the Severance Period (together, “Insurance Benefits”). In addition, during the Severance Period, subject to Executive’s proper election to continue healthcare coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company will pay Executive’s COBRA premiums in respect of COBRA benefits to be provided through third-party insurance maintained by the Company under the Company’s benefit plans in a manner that causes such COBRA benefits to be exempt from the application of Code Section 409A under Treasury Regulation Section 1.409A-1(a)(5), provided, that (x) if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Code Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (y) such amounts would be considered discriminatory under Code Section 105(h), or (z) the Company is otherwise unable to continue to cover Executive under its group health plans (including without limitation, due to Section 2716 of the Public Health Service Act or the Patient Protection and Affordable Care Act), then, in any such case, an amount equal to each remaining Company payment shall thereafter be paid to Executive in cash or by check in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof); and

(2)    All LTIP Awards other than the Additional RSU Award shall be treated as provided in Section 1(b)(iii)(E)(1) above, all Prior Awards shall be treated as provided in Section 1(b)(iii)(E) above and the Additional RSU Award shall be treated as provided in Section 1(b)(iii)(D) above.

For purposes of paragraph (e) below, payments of Annual Base Salary, amounts in lieu of Insurance Benefits, COBRA premiums and any vesting of LTIP Awards and Prior Awards following the Date of Termination, in each case, as described in this Agreement, are collectively referred to as “Severance Payments.” In addition, the Company will pay to Executive in a lump-sum the value of any accrued but unused vacation time. No Severance Payments or benefits shall be paid or provided unless Executive has executed and not revoked a release in a form mutually acceptable to both the Company and Executive that is subject to paragraph (e) below.  In addition, the Company agrees that concurrently with Executive’s execution of such release, the Company shall execute a contingent mutual release in a form that is mutually acceptable to both the Company

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and Executive that is subject to paragraph (e) below. Each payment under Section 1(c)(iii)(A) above shall be treated as a separate payment for purposes of Code Section 409A.
 
(B)           If the Company terminates Executive’s employment for Cause, if Executive resigns without Good Reason (including by operation of the last paragraph of Section 1(c)(i)(E)), or if the Company elects not to renew the Service Term, then the Company’s obligations to pay any compensation or benefits under this Agreement and all vesting under all equity awards held by Executive will cease effective as of the Date of Termination, provided, that LTIP Awards shall be treated in accordance with Section 1(b)(iii)(E)(2) above, provided, further, that any Prior Awards that remain outstanding as of Executive’s termination of employment shall be governed by the terms and conditions of the applicable award agreement and the Original Agreement.  Executive’s right to receive any other health or other benefits, if any, will be determined under the provisions of applicable plans, programs or other coverages.
 
(C)           If Executive’s employment terminates because of  Executive’s death or Disability, then Executive or his estate shall be entitled to any disability income or life insurance payments from any insurance policies (other than any  “key man” life insurance policy) maintained by the Company.  In addition, in the event of such a termination, for a period of twelve (12) months commencing on the Date of Termination, Executive or his estate shall be entitled to payment of an amount equal to 100% of the Annual Base Salary, payable over twelve (12) months from Executive’s death or Disability in approximately equal installments on regular salary payment dates. LTIP Awards other than the Additional RSU Award shall be treated in accordance with Section 1(b)(iii)(E)(1) above, the Additional RSU Award shall be treated as provided in Section 1(b)(iii)(D) above and any Prior Awards that remain outstanding as of Executive’s termination of employment shall be governed by the terms and conditions of the applicable award agreement and the Original Agreement.
 
Notwithstanding the foregoing, the Company’s obligation to Executive for Severance Payments shall cease if Executive is found by a court of law to be in material violation of the provisions of Sections 2 or 3 hereof. 
 
(d)     Mitigation. The Company’s obligation to continue to provide Executive with the Severance Payments pursuant to Section 1(c)(iii)(A) above and the benefits pursuant to the second sentence of Section 1(c)(iii)(C) above shall cease if Executive becomes employed as a senior executive by a third party.
 
(e)     Liquidated Damages. The parties acknowledge and agree that damages which will result to Executive for termination by the Company without Cause shall be extremely difficult or impossible to establish or prove, and agree that the Severance Payments shall constitute liquidated damages for any breach of this Agreement by the Company through the Date of Termination.  Executive agrees that, except for such other payments and benefits to which Executive may be entitled as expressly provided by the terms of this Agreement or any applicable benefit plan, such liquidated damages shall be in lieu of all other claims that Executive may make by reason of termination of his employment or any such breach of this Agreement and that, as a condition to receiving the Severance Payments, Executive will execute a contingent mutual release of claims in a form reasonably satisfactory to both the Company and Executive.


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(f)     Term of Employment. Unless Executive’s employment under this Agreement is sooner terminated as a result of Executive’s termination in accordance with the provisions of Section 1(c) above, Executive’s employment under this Agreement shall be for a term (the “Service Term”) commencing on the Amended Effective Date and ending on the fourth (4th) anniversary of the Amended Effective Date; provided, however, that Executive’s employment under this Agreement, and the Service Term, shall be automatically renewed for additional one-year periods commencing on December 31, 2019 and, thereafter, on each successive anniversary of such date unless either the Company or Executive notify the other party in writing within ninety (90) days prior to any such anniversary that it or he desires not to renew Executive’s employment under this Agreement. All references herein to “Service Term” shall include any renewals thereof on or after December 31, 2019.


(g)    Potential Six-Month Delay. Notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation any Severance Payments or payments in respect of any LTIP Awards or Prior Awards in connection with a Separation from Service, shall be paid to Executive during the six (6)-month period following his Separation from Service to the extent that the Company reasonably determines that Executive is a “specified employee” (within the meaning of Code Section 409A) at the time of such Separation from Service and that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Code Section 409A(a)(2)(b)(i). If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such six (6)-month period (or such earlier date upon which such amount can be paid under Code Section 409A without being subject to such additional taxes, including as a result of Executive’s death), the Company shall pay to Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to Executive during such six (6)-month period, without interest thereon.
 
2.     Confidential Information; Proprietary Information, etc.
 
(a)     Obligation to Maintain Confidentiality. Executive acknowledges that any Proprietary Information disclosed or made available to Executive or obtained, observed or known by Executive as a direct or indirect consequence of his employment with or performance of services for the Company or any of its Affiliates during the course of his performance of services for, or employment with, any of the foregoing Persons (whether or not compensated for such services) and during the period in which Executive is receiving Severance Payments, are the property of the Company and its Affiliates.  Therefore, Executive agrees that he will not at any time (whether during or after Executive’s term of employment) disclose or permit to be disclosed to any Person or, directly or indirectly, utilize for his own account or permit to be utilized by any Person any Proprietary Information or Records for any reason whatsoever without the Board’s consent, unless and to the extent that (except as otherwise provided in the definition of Proprietary Information) the aforementioned matters become generally known to and available for use by the public other than as a direct or indirect result of Executive’s acts or omissions to act. Executive agrees to deliver to the Company at the termination of his employment, as a condition to receipt of the next or final payment of compensation, or at any other time the Company may request in writing (whether during or after Executive’s term of employment), all Records which he may then possess or have under his control. Executive further agrees that any property situated on the Company’s or its Affiliates’ premises and owned by the Company or its Affiliates, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company or its Affiliates and their personnel at any time with or without notice.  Nothing in this Section 2(a) shall be construed to prevent Executive from using his general knowledge and experience in future employment so long as Executive complies with this Section 2(a) and the other restrictions contained in this Agreement.
 

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(b)     Ownership of Property. Executive acknowledges that all inventions, innovations, improvements, developments, methods, processes, programs, designs, analyses, drawings, reports and all similar or related information  (whether or not patentable) that relate to the Company’s or any of its Affiliates’ actual or anticipated business, research and development, or existing or future products or services and that are conceived, developed, contributed to, made, or reduced to practice by Executive (either solely or jointly with others) while employed by the Company or any of its Affiliates (including any of the foregoing that constitutes any Proprietary Information or Records) (“Work Product”) belong to the Company or such Affiliate and Executive hereby assigns, and agrees to assign, all of the above Work Product to the Company or such Affiliate.  Any copyrightable work prepared in whole or in part by Executive in the course of his work for any of the foregoing entities shall be deemed a “work made for hire” under the copyright laws, and the Company or such Affiliate shall own all rights therein. To the extent that any such copyrightable work is not a “work made for hire,” Executive hereby assigns and agrees to assign to Company or such Affiliate all right, title and interest, including without limitation, copyright in and to such copyrightable work.  Executive shall promptly disclose such Work Product and copyrightable work to the Board and perform all actions reasonably requested by the Board (whether during or after Executive’s term of employment) to establish and confirm the Company’s or its Affiliate’s ownership (including, without limitation, execution of assignments, consents, powers of attorney and other instruments).  Notwithstanding anything contained in this Section 2(b) to the contrary, the Company’s ownership of Work Product does not apply to any invention that Executive develops entirely on his own time without using the equipment, supplies or facilities of the Company or its Affiliates or Subsidiaries or any Proprietary Information (including trade secrets), except that the Company’s ownership of Work Product does include those inventions that:  (i) relate to the business of the Company or its Affiliates or Subsidiaries or to the actual or demonstrably anticipated research or development relating to the Company’s business; or (ii) result from any work that Executive performs for the Company or its Affiliates or Subsidiaries.
 
(c)     Third Party Information. Executive understands that the Company and its Affiliates will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on the Company’s and its Affiliates’ part to maintain the confidentiality of such information and to use it only for certain limited purposes.  During the term of Executive’s employment and thereafter, and without in any way limiting the provisions of Sections 2(a) and 2(b) above, Executive shall hold Third Party Information in the strictest confidence and shall not disclose to anyone (other than personnel of the Company or its Affiliates who need to know such information in connection with their work for the Company or its Affiliates) or use, except in connection with his work for the Company or its Affiliates, Third Party Information unless expressly authorized by a member of the Board in writing.
 
(d)     Use of Information of Prior Employers, etc. Executive will abide by any enforceable obligations contained in any agreements that Executive has entered into with his prior employers or other parties to whom Executive has an obligation of confidentiality.
 
(e)     Compelled Disclosure. If Executive is required by law or governmental regulation or by subpoena or other valid legal process to disclose any Proprietary Information or Third Party Information to any Person, Executive will immediately provide the Company with written notice of the applicable law, regulation or process so that the Company may seek a protective order or other appropriate remedy.  Executive will cooperate fully with the Company and the Company’s Representatives in any attempt by the Company to obtain any such protective order or other remedy.  If the Company elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that Executive disclose Proprietary Information or Third Party Information, and if Executive furnishes the Company with a written opinion of reputable legal counsel acceptable to the Company confirming that the disclosure of such Proprietary Information or Third Party Information is legally required, then Executive may disclose

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such Proprietary Information or Third Party Information to the extent legally required; provided, however, that Executive will use his reasonable best efforts to ensure that such Proprietary Information is treated confidentially by each Person to whom it is disclosed.
 
3.      Nonsolicitation.
 
(a)     Nonsolicitation. As long as Executive is an employee of the Company or any Affiliate thereof, and for eighteen (18) months thereafter, Executive shall not directly or indirectly through another entity: (i) induce or attempt to induce any employee of the Company or any Affiliate to leave the employ of the Company or such Affiliate, or in any way interfere with the relationship between the Company or any Affiliate and any employee thereof; (ii) hire or employ any person who was an employee of the Company or any Affiliate at any time during the nine (9)-month period immediately preceding the date of such Executive’s termination; (iii) use any trade secret of the Company or its Affiliates to solicit, induce, or encourage any customer, client, vendor, or other party doing business with any member of the Company and its Affiliates to terminate its relationship therewith or transfer its business from any member of the Company and its Affiliates and Executive shall not initiate discussion with any such person for any such purpose or authorize or knowingly cooperate with the taking of any such actions by any other individual or entity.
 
(b)     Acknowledgment. Executive acknowledges that in the course of his employment with the Company and its Affiliates, he has and will become familiar with the trade secrets and other Proprietary Information of the Company and its Affiliates. It is specifically recognized by Executive that his services to the Company and its Subsidiaries are special, unique and of extraordinary value, that the Company has a protectable interest in prohibiting Executive as provided in this Section 3, that money damages are insufficient to protect such interests, that there is adequate consideration being provided to Executive hereunder, that such prohibitions are necessary and appropriate without regard to payments being made to Executive hereunder and that the Company would not enter this Agreement with Executive without the restriction of this Section 3. Executive further acknowledges that the restrictions contained in this Section 3 do not impose an undue hardship on him and, since he has general business skills which may be used in industries other than that in which the Company and its Subsidiaries conduct their business, do not deprive Executive of his livelihood.  Executive further acknowledges that the provisions of this Section 3 are separate and independent of the other sections of this Agreement.
 
(c)      Enforcement, etc.  If, at the time of enforcement of Section 2 or 3 of this Agreement, a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or geographical area reasonable under such circumstances as determined by the court shall be substituted for the stated period, scope or area.  Because Executive’s services are unique, because Executive has access to Proprietary Information and for the other reasons set forth herein, the parties hereto agree that money damages would be an inadequate remedy for any breach of this Agreement.  Therefore, without limiting the generality of Section 8(g), in the event of a breach or threatened breach of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof.
 
(d)     Submission to Jurisdiction.  The parties hereby: (i) submit to the jurisdiction of any state or federal court sitting in California in any action or proceeding arising out of or relating to Section 2 and/or 3 of this Agreement; (ii) agree that all claims in respect of such action or proceeding may be heard or determined in any such court; and (iii) agree not to bring any action or proceeding arising out of or relating to Section 2 and/or 3 of this Agreement in any other court.  The parties hereby waive any defense of

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inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. The parties hereby agree that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law.
 
GENERAL PROVISIONS
 
4.    Definitions.
 
“Adjusted EBITDA” means earnings before interest, taxes, depreciation and amortization, but excluding gains, losses or expenses associated with all Unusual Items.

“Affiliate” of any Person means any other Person which directly or indirectly controls, is controlled by or is under common control with such Person.
 
“Board” means the Company’s board of directors or the board of directors or similar management body of any successor of the Company.
 
“Proprietary Information” means any and all data and information concerning the business affairs of the Company or any of its Affiliates and not generally known in the industry in which the Company or any of its Affiliates is or may become engaged, and any other information concerning any matters affecting or relating to the Company’s or its Affiliates businesses, but in any event Proprietary Information shall include, any of the Company’s and its Affiliates’ past, present or prospective business opportunities, including information concerning acquisition opportunities in or reasonably related to the Company’s or its Affiliates businesses or industries, customers, customer lists, clients, client lists, the prices the Company and its Affiliates obtain or have obtained from the sale of, or at which they sell or have sold, their products, unit volume of sales to past or present customers and clients, or any other information concerning the business of the Company and its Affiliates, their manner of operation, their plans, processes, figures, sales figures, projections, estimates, tax records, personnel history, accounting procedures, promotions, supply sources, contracts, know-how, trade secrets, information relating to research, development, inventions, technology, manufacture, purchasing, engineering, marketing, merchandising or selling, or other data without regard to whether all of the foregoing matters will be deemed confidential, material or important.  Proprietary Information does not include any information which Executive has obtained from a Person other than an employee of the Company, which was disclosed to him without a breach of a duty of confidentiality.
 
“Person” means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.
 
“Records” means (i) any and all procedure manuals, books, records and accounts; (ii) all property of the Company and its Affiliates, including papers, note books, tapes and similar repositories containing Proprietary Information; (iii) all invoices and commission reports; (iv) customer lists — partial and/or complete; (v) data layouts, magnetic tape layouts, diskette layouts, etc.; (vi) samples; (vii) promotional letters, brochures and advertising materials; (viii) displays and display materials; (ix) correspondence and old or current proposals to any former, present or prospective customer of the Company and its Affiliates; (x) information concerning revenues and profitability and any other financial conditions of the Company and its Affiliates; (xi) information concerning the Company and its Affiliates which was input by Executive or at his direction, under his supervision or with his knowledge, including on any floppy disk, diskette, cassette or similar device used in, or in connection with, any computer, recording devices or typewriter; (xii)

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data, account information or other matters furnished by customers of the Company and its Affiliates; and (xiii) all copies of any of the foregoing data, documents or devices whether in the form of carbon copies, photo copies, copies of floppy disks, diskettes, tapes or in any other manner whatsoever.

“Unusual Items” means (i) restructurings, discontinued operations, extraordinary items or events, and other unusual or non-recurring charges that are set forth in management’s discussion and analysis of financial condition and results of operations appearing or incorporated by reference in the Company’s Form 10-K for the applicable year; (ii) a force majeure or other event either not directly related to the operations of the Company or not within the reasonable control of the Company’s management; (iii) litigation (including attorneys’ fees and other litigation expenses), judgments and/or settlements; (iv) changes in tax laws or accounting standards required by generally accepted accounting principles or changes in other such laws or provisions affecting reported results; (v) expenses for brief transitional costs and severance arrangements related to the termination of management; (vi) equity-based compensation expenses; (vii) one-time gains or losses from the disposal or sale of assets; and (viii) impairments of goodwill or other intangible assets.
  
5.      Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class United States mail (postage prepaid, return receipt requested) or sent by reputable overnight courier service (charges prepaid) or by facsimile to the recipient at the address below indicated:
 
If to Executive:

Peter T. Dameris
26745 Malibu Hills Road
Calabasas, California 91301
Fax No.: (818) 880-0056

If to the Company:

26745 Malibu Hills Road
Calabasas, California 91301
Attn: Chief Legal Officer
Fax No.: (818) 517-1118
 
or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.
 
6.     Executive’s Representations and Warranties.  Executive represents and warrants that he has full authority to enter into this Agreement and fully to perform his obligations hereunder, that he is not subject to any non-competition agreement, and that his past, present and anticipated future activities have not and will not infringe on the proprietary rights of others, including, but not limited to, proprietary information rights or interfere with any agreements he has with any prior employee.  Executive further represents and warrants that he is not obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency, which would conflict with or result in a breach of this Agreement or which would in any manner interfere with the performance of his duties for the Company.
 

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7.     Code Section 409A.

(a)    General. To the extent applicable, this Agreement shall be interpreted in accordance with Code Section 409A and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, if the Company determines that any compensation or benefits payable under this Agreement may be subject to Code Section 409A and related Department of Treasury guidance, the Company shall work in good faith with Executive to adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Company determines are necessary or appropriate to avoid the imposition of taxes under Section Code Section 409A , including without limitation, actions intended to (i) exempt the compensation and benefits payable under this Agreement from Code Section 409A , and/or (ii) comply with the requirements of Code Section 409A and related Department of Treasury guidance; provided, however, that this Section 7(a) shall not create an obligation on the part of the Company to adopt any such amendment, policy or procedure or take any such other action, nor shall the Company have any liability for failing to do so.

(b)    Certain Reimbursements. To the extent that any payments or reimbursements provided to Executive hereunder are deemed to constitute compensation to Executive to which Code Section 409A would apply, such amounts shall be paid or reimbursed to Executive reasonably promptly, but in no event later than December 31st of the year following the year in which the expense was incurred. The amount of any such payments eligible for reimbursement in one year shall not affect the payments or expenses that are eligible for payment or reimbursement in any other taxable year, and Executive’s right to such payments or reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.
    
8.    General Provisions.
 
(a)           Expenses. Each party shall bear his or its own expenses in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated by this Agreement.
 
(b)           Severability.  Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
 
(c)           Complete Agreement. As of the Amended Effective Date, this Agreement and those documents expressly referred to herein embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way, including without limitation, the Original Agreement but excluding the Second Amended and Restated Executive Change of Control Agreement between the Company and Executive, dated concurrently herewith. Notwithstanding the foregoing, the Original Agreement shall continue to govern the terms and conditions of all compensation and benefits paid, provided or payable thereunder, including without limitation the Prior Awards. Executive agrees that the Original Agreement shall be superseded and of no further force or effect from and after the Amended Effective Date. In the event that the Executive’s employment with the Company is terminated prior to the Amended Effective Date, this Agreement (including, without limitation, the immediately preceding sentence) shall have no force or effect.

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(d)           Counterparts; Facsimile Transmission. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement. Each party to this Agreement agrees that it will be bound by its own electronic or telecopied signature and that it accepts the electronic or telecopied signature of each other party to this Agreement.
 
(e)           Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be enforceable by Executive, the Company and their respective successors and assigns; provided that the rights and obligations of Executive under this Agreement shall not be assignable and, provided further that, the rights and obligations of the Company may be assigned to any Affiliate of the Company.
 
(f)     Choice of Law; Jurisdiction. All questions concerning the construction, validity and interpretation of this Agreement and the exhibits hereto will be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.  The parties hereby: (i) submit to the jurisdiction of any state or federal court sitting in California in any action or proceeding arising out of or relating to Agreement; (ii) agree that all claims in respect of such action or proceeding may be heard or determined in any such court; and (iii) agree not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Executive hereby waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. The parties hereby agree that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law.
 
(g)           Remedies. Each of the parties to this Agreement will be entitled to enforce its rights under this Agreement specifically, to recover damages and costs (including attorney’s fees) caused by any breach of any provision of this Agreement and to exercise all other rights existing in its favor. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement.
 
(h)    Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of the Company and Executive.
 
(i)      Business Days. If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or holiday in the state in which the Company’s chief executive office is located, the time period shall be automatically extended to the business day immediately following, such Saturday, Sunday or holiday.
 
(j)      Termination. This Agreement shall survive the termination of Executive’s employment with the Company and shall remain in full force and effect after such termination.
 

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(k)     No Waiver. A waiver by any party hereto of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which such party would otherwise have on any future occasion.  No failure to exercise nor any delay in exercising on the part of any party hereto, any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  The rights and remedies herein provided are cumulative and may be exercised singly or concurrently, and are not exclusive of any rights or remedies provided by law.
 
(l)      Insurance.  The Company, at its discretion, may apply for and procure in its own name for its own benefit life and/or disability insurance on Executive in any amount or amounts considered available. Executive agrees to cooperate in any medical or other examination, supply any information, and to execute and deliver any applications or other instruments in writing as may be reasonably necessary to obtain and constitute such insurance. Executive hereby represents that he has no reason to believe that his life is not insurable at rates now prevailing for healthy men of his age.
 
(m)      Offset.  Whenever the Company or any of its Subsidiaries is obligated to pay any sum to Executive or any Affiliate or related person thereof pursuant to this Agreement, any bona fide debts that Executive or such Affiliate or related person owes to the Company or any of its Subsidiaries may be deducted from that sum before payment, to the greatest extent permitted under applicable law.

 (n)     Withholding.  The Company and its Subsidiaries shall be entitled to deduct or withhold from any amounts owing from the Company or any of its Subsidiaries to Executive any federal, state, provincial, local or foreign withholding taxes, excise taxes, or employment taxes imposed with respect to Executive’s compensation or other payments from the Company or any of its Subsidiaries or Executive’s ownership interest in the Company, including, but not limited to, wages, bonuses, dividends, the receipt or exercise of stock options and/or the receipt or vesting of restricted stock.
 
(o)      Insurance and Indemnification.  For the period from the date of this Agreement through at least the tenth anniversary of Executive’s termination of employment from the Company, the Company shall maintain Executive as an insured party on all directors’ and officers’ insurance maintained by the Company for the benefit of its directors and officers on at least the same basis as all other covered individuals and provide Executive with at least the same corporate indemnification as it provides to the peer executives of the Company.

(p)     Clawback. All bonuses and equity awards granted and paid out under this Agreement shall be subject to the provisions of any clawback, repayment or recapture policy adopted by the Company, to the extent set forth in such policy, but solely to the extent required to comply with applicable law (including without limitation the Dodd-Frank Wall Street Reform and Consumer Protection Act) or securities exchange listing standards and any rules or regulations promulgated thereunder.
  


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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.
 
 
ON ASSIGNMENT, INC.
 
 
 
 
 
By:
/s/ Jeremy M. Jones
 
Name:
Jeremy M. Jones
 
Title:
Chairman of the Board of Directors
 
 
 
 
 
/s/ Peter T. Dameris
 
 
PETER T. DAMERIS
 
 
 
 
 
 
 


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SECOND AMENDED AND RESTATED EXECUTIVE CHANGE OF CONTROL AGREEMENT
This Second Amended and Restated Executive Change of Control Agreement (this “Agreement”), by and between On Assignment, Inc., a Delaware corporation (the “Company”), and Peter T. Dameris (the “Executive”), is entered into on November 17, 2015. This Agreement amends and restates the Original Agreement (defined below) and is effective as of the Amended Effective Date (as defined below).
RECITALS
A.The Company and the Executive previously entered into that certain Amended and Restated Executive Change of Control Agreement dated December 11, 2008 (the “Original Agreement”).
B.    The Company and the Executive wish to enter into an amended and restated agreement, effective December 31, 2015 (the “Amended Effective Date”).
C.    The Board of Directors of the Company (the “Board”), has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication of the Executive, notwithstanding the possibility, threat or occurrence of a Change of Control (as defined herein). The Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change of Control and to encourage the Executive’s full attention and dedication to the current Company in the event of any threatened or pending Change of Control, and to provide the Executive with compensation and benefits arrangements upon a Change of Control that ensure that the compensation and benefits expectations of the Executive will be satisfied and that are competitive with those of other corporations.
D.    As of the Amended Effective Date, the Original Agreement shall be superseded by this Agreement.
AGREEMENT
In consideration of the foregoing and the mutual covenants and promises contained herein, the parties agree as follows:
1.Certain Definitions. Capitalized terms (such as “Cause”) not otherwise defined herein shall have the meanings set forth in the Employment Agreement. In addition to the terms defined elsewhere herein, the following terms shall have the respective meanings set forth below:




(a)    “Accrued Compensation” means an amount including all amounts earned or accrued through the termination date but not paid as of the termination date including (i) Base Salary, (ii) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the Company during the period ending on the termination date, (iii) vacation and sick leave pay (to the extent provided by Company policy or applicable law), and (iv) incentive compensation (if any) earned in respect of any period ended prior to the termination date. It is expressly understood that incentive compensation shall have been “earned” as of the time that the conditions to such incentive compensation have been met, even if not calculated or payable at such time.
(b)    “Affiliated Company” means any company controlled by, controlling or under common control with the Company.
(c)    “Base Salary” means the Executive’s Annual Base Salary (as defined in Section 1(b)(i) of the Employment Agreement) at the rate in effect during the last regularly scheduled payroll period immediately preceding the occurrence of the Change of Control and does not include, for example, bonuses, overtime compensation, incentive pay, fringe benefits, sales commissions or expense allowances.
(d)    “Cause” has the meaning given to it in the Employment Agreement.
(e)    “Change of Control” shall be deemed to occur upon the consummation of any of the following transactions:
(i)    a merger or consolidation in which the Company is not the surviving entity, except for a transaction the principal purpose of which is to change the state of the Company’s incorporation or a transaction in which 50% or more of the surviving entity’s outstanding voting stock following the transaction is held by holders who held 50% or more of the Company’s outstanding voting stock prior to such transaction; or
(ii)    the sale, transfer or other disposition of all or substantially all of the assets of the Company; or
(iii)    any reverse merger in which the Company is the surviving entity, but in which 50% or more of the Company’s outstanding voting stock is transferred to holders different from those who held the stock immediately prior to such merger; or
(iv)    the acquisition by any person (or entity) directly or indirectly of 50% or more of the combined voting power of the outstanding shares of Company capital stock; or

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(v)    during any period of two (2) consecutive years (not including any period prior to the date of this Agreement), individuals who at the beginning of such period constitute the Board (and any new director, whose election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was so approved), cease for any reason to constitute a majority thereof; provided, however, that any individual becoming a director subsequent to the Amended Effective Date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Board on the Amended Effective Date (the “Incumbent Board”) shall be considered as though such individual were a member of the Incumbent Board, but excluding, for purposes of this proviso, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.
(f)    “Change of Control Period” means the period commencing on the Amended Effective Date and ending on the fourth anniversary of the Amended Effective Date; provided, however, that, commencing on the date three years after the Amended Effective Date, and on each annual anniversary of such date (such date and each annual anniversary thereof, the “Renewal Date”), the Change of Control Period shall be automatically extended so as to terminate two years from such Renewal Date, unless at least sixty (60) days prior to the Renewal Date, the Company gives notice to the Executive that the Change of Control Period shall not be extended.
(g)    “Code” means the Internal Revenue Code of 1986, as amended.
(h)    “Date of Termination” means the date on which the Executive experiences a Separation from Service.
(i)    “Employment Agreement” means that certain Second Amended and Restated Senior Executive Agreement between the Executive and the Company, dated concurrently herewith (as amended from time to time).
(j)    “Involuntary Termination” means the termination of the Executive’s employment with the Company (or, if applicable, successor entity) other than by reason of death or disability:
(i)    upon the Executive’s involuntary discharge or dismissal other than for Cause,

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(ii)    upon the Executive’s resignation for Good Reason in accordance with the terms of Section 1(c)(i)(E) of the Employment Agreement,
(iii)    upon the Executive’s resignation following (A) a reduction in the Executive’s level of Base Salary or any Target Bonus (unless, in the case of a reduction in any Target Bonus, there is a corresponding increase in the level of Base Salary such that, in the aggregate, the Executive is no worse off) or (B) a material reduction in the Executive’s benefits, provided and only if such change or reduction is effected without the Executive’s written concurrence,
(iv)    a material breach by the Company of this Agreement or the Employment Agreement,
(v)    any action by the Company that results in a demotion or material diminution of the Executive’s position, authority, duties or responsibilities, or
(vi)    the Executive fails at any point to hold the titles, authorities and responsibilities set forth in the Employment Agreement with the Company (or any successor or surviving corporation), including without limitation a change in title such that the Executive is no longer the principal executive officer of a publicly-held company.
Except as provided in Section 2(b), for purposes of this Agreement any determination of “Involuntary Termination” made by the Company or the Executive shall be made in good faith. Any dispute regarding same shall be promptly resolved by arbitration in accordance with the provisions of Sections 9(g) and (h) below.
(k)    “Pro Rata Bonus” means an amount equal to 100% of the Target Bonus that the Executive would have been eligible to receive for the Company’s fiscal year in which the Executive’s employment terminates following a Change of Control, multiplied by a fraction, the numerator of which is the number of days in such fiscal year through the Termination Date and the denominator of which is 365.
(l)    “Separation from Service” means a “separation from service” within the meaning of Section 409A(a)(2) (A)(i) of the Code, and Treasury Regulation Section 1.409A-1(h).
(m)    “Target Bonus” means the bonus which would have been paid to the Executive for full achievement of the Company’s base business plan or budget and/or for the attainment of specific performance objectives pertaining to the business of the Company or any of its specific business units or divisions, or to individual performance criteria applicable to the Executive or his position, which objectives have been established by the Board of Directors (or the Compensation Committee thereof) for the Executive relating to such plan or budget for the year in

4



question. “Target Bonus” shall not mean the “maximum bonus” which the Executive might have been paid for overachievement of such plan.
2.    Involuntary Termination of Employment Following a Change of Control.
(a)    Subject to the terms of this Agreement, the Executive shall be entitled to receive severance payments from the Company for services previously rendered to the Company and its Affiliated Companies if all of the following conditions are met: (1) a Change of Control occurs during the Change of Control Period, (2) the Executive’s employment is terminated under circumstances constituting an Involuntary Termination, and (3) the Date of Termination occurs during the period commencing upon such Change of Control and ending on the date that is eighteen (18) months following the Change of Control. In such event, the severance provisions of this Agreement shall control and take precedence over any inconsistent terms of the Employment Agreement (including without limitation Section 1(c)(iii)), and the Company shall, subject to Section 8 below:
(i)    within 30 days after the Date of Termination (or such earlier date as may be required by applicable law), pay to the Executive the Executive’s Accrued Compensation and Pro-Rata Bonus;
(ii)    in accordance with Section 2(b) below, pay to the Executive the amount (the “Cash Severance”) equal to the product of (i) 3.00 and (ii) the sum of (A) the Executive’s Base Salary and (B) the Executive’s Target Bonus;
(iii)    for a period of eighteen (18) months after the Date of Termination, continue to provide the Executive with his car allowance as in effect immediately prior to the Change of Control, payable in substantially equal monthly installments commencing on the Date of Termination, provided, however that if the Executive becomes reemployed with another employer and is eligible to receive a car allowance, the Company shall be relieved of its obligation to pay the Executive’s car allowance;
(iv)    for eighteen (18) months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, subject to the Executive’s proper election to continue healthcare coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company will pay the Executive’s and/or the Executive’s family’s COBRA premiums in respect of COBRA benefits to be provided at the levels being provided to the Executive and/or the Executive’s family immediately prior to the Change of Control through third-party insurance maintained by the Company under the Company’s benefit plans in a manner that causes such COBRA benefits to be exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5); provided, however, that if the Executive

5



becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the benefits described in this Section 2(a)(iv) shall be secondary to those provided under such other plan during such applicable period of eligibility, provided, further, that if during the period of continuation coverage, (x) any plan pursuant to which such benefits are to be provided ceases to be exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (y) such amounts would be considered discriminatory under Section 105(h) of the Code, or (z) the Company is otherwise unable to continue to cover Executive under its group health plans (including without limitation, due to Section 2716 of the Public Health Service Act or the Patient Protection and Affordable Care Act), then, in any such case, an amount equal to each such remaining premium shall thereafter be paid to the Executive as currently taxable compensation in substantially equal monthly installments over the remainder of the continuation coverage period;
(v)    within 30 days after the Date of Termination (with the exact payment date to be determined in the sole discretion of the Company), subject to Section 8(c) below, pay to the Executive a cash amount equal to the aggregate premiums that the Company would have paid for basic life insurance, accidental death and dismemberment insurance and long- and short-term disability insurance, each as in effect on the Date of Termination, had the Executive remained employed by the Company for eighteen (18) months after the Date of Termination;
(vi)    during the eighteen (18) month period immediately following the Date of Termination, pay to the Executive, in substantially equal monthly installments, an amount equal to the aggregate contribution (if any) to the Company’s Deferred Compensation Plan and other retirement plans that the Company would have made on behalf of the Executive (including matching contributions) if the Executive’s employment continued for eighteen (18) months after the Date of Termination, assuming for this purpose that all benefits under such retirement plans are fully vested and that the Executive’s compensation during such eighteen (18) months were the same as it had been immediately prior to the Change of Control, (for clarification and avoidance of doubt, the foregoing provision applies only to amounts contributed by the Company to Executive’s Deferred Compensation Plan account, such as amounts contributed by the Company to match the Executive’s deferral amounts, but does not apply to any amounts deferred by Executive, the payout of which shall remain subject to and governed by the terms and conditions of the Deferred Compensation Plan);
(vii)    provide the Executive, at the Company’s expense, with outplacement services reasonably selected by the Executive, provided, however, that the cost to the Company shall not exceed $15,000 and such services shall be provided to Executive no later

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than the end of the second calendar year following that in which the Date of Termination occurs; and
(viii)    subject to Section 4 below, all outstanding Company compensatory equity awards that have not yet vested shall vest and, as applicable, become exercisable on the Date of Termination, and any Company stock options shall remain exercisable until the eighteen (18)-month anniversary of the Date of Termination, provided, however, that in no event shall any stock option remain exercisable beyond the earlier to occur of the tenth anniversary of the applicable grant date or the stock option’s stated expiration date.
(b)    Subject to Section 8 below, the Cash Severance shall be payable as follows:
(i)    if the Date of Termination occurs during the period commencing upon the Change of Control and ending on the date that is six (6) calendar months and ten (10) business days following the Change of Control (such date, the “Anniversary Date”), then within thirty (30) days after the Date of Termination (with the exact payment date to be determined in the sole discretion of the Company), or
(ii)    if the Date of Termination occurs during the period commencing on the date immediately following the Anniversary Date and ending on the eighteen (18)-month anniversary of the Change of Control, then (A) an amount equal to 150% of the Annual Base Salary (as defined in the Employment Agreement) (the “1.5x Salary Amount”) shall be payable over a period of eighteen (18) months commencing on the Date of Termination in substantially equal installments in accordance with Company payroll procedures applicable to senior executives of the Company, as in effect from time to time (but no less often than monthly), provided, that payment of the 1.5x Salary Amount shall not commence until the Company’s first payroll date occurring on or after the 30th day following the Date of Termination (the “First Payroll Date”) and any amounts that would otherwise have been paid prior to the First Payroll Date shall instead be paid on the First Payroll Date; and (B) an amount equal to the difference between the Cash Severance and the 1.5x Salary Amount shall be paid in a single lump sum within thirty (30) days after the Date of Termination (with the exact payment date to be determined in the sole discretion of the Company).
3.    Termination of Employment Following a Change of Control for Cause or Other Than in Connection with an Involuntary Termination. If following a Change of Control the Executive’s employment is terminated for Cause or the Executive resigns other than in connection with an Involuntary Termination or due to the Executive’s death or disability, this Agreement shall terminate without further obligations to the Executive and all obligations and rights of the Executive and the Company shall be governed by the appropriate operative provisions of the Employment Agreement. The Executive shall not be deemed to have been terminated for Cause under this Agreement, unless

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such termination is made in full compliance with the terms of Section 1(c)(i)(D) of the Employment Agreement, including without limitation the provisions relating to notice, the opportunity to be heard by the Board, the determination of “Cause” being made by a majority of the directors of the Company and the Executive’s right to appeal any such determination.
4.    Effect of Change of Control on Current Option, Restricted Stock and Restricted Unit Awards. Immediately prior to a Change of Control, the vesting and exercisability of all stock options, restricted stock and restricted stock unit grants made to the Executive by the Company which are outstanding as of the Amended Effective Date and which remain outstanding at the time of such event shall be accelerated with respect to all shares subject thereto, provided, however, that notwithstanding the foregoing, payment in respect of any restricted stock units shall be made in accordance with the terms of such restricted stock units. Accordingly, all stock options shall be exercisable at such time in accordance with their terms. This Agreement is intended to amend all stock option, restricted stock and restricted stock unit grants previously awarded to the Executive to accelerate vesting as described above to the extent vesting would not otherwise be accelerated under the terms of such stock option, restricted stock and restricted stock unit grants. The Company agrees for purposes of determining the continued exercisability of Executive’s stock options outstanding on the Date of Termination, Executive shall be considered to have remained employed by the Company until the date that is eighteen (18) months from the Date of Termination, provided, however, that in no event shall any stock option remain exercisable beyond the earlier to occur of the tenth anniversary of the applicable grant date or the stock option’s stated expiration date.
5.    Excess Parachute Payments, Limitation on Payments.
(a)    Best Pay Cap. Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Sections 3 and 4 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total

8



Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).
(b)    Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of an independent, nationally recognized accounting firm (the “Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
6.    Full Settlement. The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense, or other claim, right or action that the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, and subject to the effect of the provisos at the end of Section 2(a)(iii) above, such amounts shall not be reduced whether or not the Executive obtains other employment. The Company agrees to pay as incurred (within 10 days following the Company’s receipt of an invoice from the Executive), to the full extent permitted by law, subject to Section 8 below, all legal fees and expenses that the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof) by the Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement), plus, in each case, interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code.
7.    Successors.
(a)    This Agreement is personal to the Executive, and, without the prior written consent of the Company, shall not be assignable by the Executive other than by will or the laws of

9



descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representatives.
(b)    This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns. Except as provided in Section 7(c), without the prior written consent of the Executive this Agreement shall not be assignable by the Company.
(c)    The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. For purposes hereof, “Company” means the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that assumes and agrees to perform this Agreement by operation of law or otherwise.
8.    Code Section 409A.
(a)    The payments and benefits provided hereunder are intended to be exempt from or compliant with the requirements of Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, in the event that following the effective date hereof, the Company reasonably determines that any payments or benefits hereunder are not either exempt from or compliant with the requirements of Section 409A of the Code, the Company and the Executive shall work together to adopt such amendments to this Agreement or adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that are necessary or appropriate (i) to preserve the intended tax treatment of the payments and benefits provided hereunder, to preserve the economic benefits with respect to such payments and benefits, and/or (ii) to exempt such payments and benefits from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes thereunder, provided, however, that the Company shall have no obligation to take any action described in this Section 8 or to indemnify the Executive for any failure to take any such action.
(b)    Notwithstanding anything to the contrary in this Agreement, no compensation or benefits, including without limitation any termination payments or benefits payable under Section 2 above, shall be paid to the Executive during the 6-month period following the Executive’s Separation from Service to the extent that the Company reasonably determines that paying such amounts at the time or times indicated in this Agreement would be a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of such 6-month period (or such earlier date upon which such amount can be paid under Section 409A of

10



the Code without resulting in a prohibited distribution, including as a result of the Executive’s death), the Company shall pay the Executive a lump-sum amount equal to the cumulative amount that would have otherwise been payable to the Executive during such 6-month period.
(c)    To the extent that any reimbursements hereunder constitute taxable compensation to the Executive, including without limitation, any reimbursements made in accordance with Section 6 above (but excluding any reimbursements made in accordance with Sections 2 and 5 above, which reimbursements shall be provided in accordance with such Sections), such reimbursements shall be made to the Executive promptly, but in no event after December 31st of the year following the year in which the expense was incurred, the amount of any such amounts reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year, and the Executive’s right to reimbursement of any such expenses shall not be subject to liquidation or exchange for any other benefit.
9.    Miscellaneous.
(a)    The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified other than by a written agreement executed by the parties hereto or their respective successors and legal representatives.
(b)    All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
if to the Executive:
Peter T. Dameris
26745 Malibu Hills Road
Calabasas, CA 91301
if to the Company:
On Assignment, Inc.
26745 Malibu Hills Road
Calabasas, CA 91301
Attention: Chief Legal Officer
or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee.

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(c)    The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement or the Employment Agreement.
(d)    The Company may withhold from any amounts payable under this Agreement such United States federal, state or local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.
(e)    The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to assert any right the Executive or the Company may have hereunder, including, without limitation, the right of the Executive to terminate employment for Good Reason pursuant to Section 2, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.
(f)    For clarification, this Agreement is intended to supplement the terms of the Executive’s previously executed Employment Agreement and shall control in the event of any termination for Good Reason or other than for Cause of the Executive’s employment by the Company in connection with or following any Change of Control; provided, however, that the Executive shall not be entitled to payments or benefits in respect of the termination of his employment under both this Agreement and the Employment Agreement, except to the extent that such other payments or benefits are complementary to (and not duplicative of) payments and/or benefits provided hereunder. Simultaneously with the execution of this Agreement by a duly authorized officer of the Company and the Executive, the Executive is not eligible to participate in the Company’s Change in Control Severance Plan.
(g)    All claims by the Executive for payments or benefits under this Agreement shall first be directed to and determined by the Company’s Compensation Committee of the Board of Directors and shall be in writing. Any denial by the Compensation Committee of a claim for benefits under this Agreement shall be delivered to the Executive in writing and shall set forth the specific reasons for the denial and the specific provisions of this Agreement relied upon. The Compensation Committee shall afford the Executive a reasonable opportunity for a review of the decision denying a claim and shall further allow the Executive make a written demand upon the Company to submit the disputed matter to arbitration in accordance with the provisions of paragraph (h) below. The Company shall pay all expenses of the Executive, including reasonable attorneys and expert fees, in connection with any such arbitration. If for any reason the arbitrator has not made his award within ninety (90) days from the date of Executive’s demand for arbitration, such arbitration proceedings shall be immediately suspended and the Company shall be deemed to have agreed to Executive’s position and the Company shall, as soon as practicable and in any event within 10 business days after the expiration of such 90 day period, pay Executive his expenses and all amounts claimed by him that were the subject of such dispute and arbitration proceedings.

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(h)    Subject to the terms of paragraph (g) above, any dispute arising from, or relating to, this Agreement shall be resolved at the request of either party through binding arbitration in accordance with this paragraph (h). Within 10 business days after demand for arbitration has been made by either party, the parties, and/or their counsel, shall meet to discuss the issues involved, to discuss a suitable arbitrator and arbitration procedure, and to agree on arbitration rules particularly tailored to the matter in dispute, with a view to the dispute’s prompt, efficient, and just resolution. Upon the failure of the parties to agree upon arbitration rules and procedures within a reasonable time (not longer than 15 business days from the demand), the Commercial Arbitration Rules of the American Arbitration Association shall be applicable. Likewise, upon the failure of the parties to agree upon an arbitrator within a reasonable time (not longer than 15 business days from demand), there shall be a panel comprised of three arbitrators, one to be appointed by each party and the third one to be selected by the two arbitrators jointly, or by the American Arbitration Association, if the two arbitrators cannot decide on a third arbitrator. At least 30 days before the arbitration hearing (which shall be set for a date no later than 60 days from the demand), the parties shall allow each other reasonable written discovery including the inspection and copying of documents and other tangible items relevant to the issues that are to be presented at the arbitration hearing. The arbitrator(s) shall be empowered to decide any disputes regarding the scope of discovery. The award rendered by the arbitrator(s) may include, without limitation, special, punitive and/or consequential damages, if and to the extent deemed appropriate by the arbitrator(s). The award rendered by the arbitrator(s) shall be final and binding upon both parties. The arbitration shall be conducted in Los Angeles County, California. The California State Superior Court located in Los Angeles County, California shall have exclusive jurisdiction over disputes between the parties in connection with such arbitration and the enforcement thereof, and the parties consent to the jurisdiction and venue of such court for such purpose.
(i)    This Agreement shall be governed by the laws of the State of Delaware, without giving effect to any choice of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
(j)    This Agreement shall terminate and be of no further force and effect immediately upon the Executive’s voluntary termination of his employment with the Company (irrespective of whether such termination constitutes retirement or resignation), provided that such termination is not with Good Reason and does not constitute an Involuntary Termination.
(k)    As of the Amended Effective Date, this Agreement and those documents expressly referred to herein embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way, including without limitation, the Original Agreement but excluding the Employment Agreement. The

13



Executive agrees that the Original Agreement shall be superseded and of no further force or effect from and after the Amended Effective Date. In the event that the Executive’s employment with the Company is terminated prior to the Amended Effective Date, this Agreement (including, without limitation, the immediately preceding sentence) shall have no force or effect.
[Execution Page Follows]



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IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to the authorization from the Board, the Company has caused these presents to be executed in its name on its behalf, all as of the day and year first above written.

 
 
 
 
 
 
 
/s/ Peter T. Dameris
 
 
 
Peter T. Dameris
 
 
 
 
 
 
 
 
ON ASSIGNMENT, INC.
 
 
 
 
 
 
 
 
 
 
 
 
 
By:
/s/ Jeremy M. Jones
 
 
 
 
Jeremy M. Jones
 
 
 
 
Chairman of the Board
 



[Signature Page to Agreement]

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