Exhibit 10.6


 


AMENDED
AND RESTATED


EMPLOYMENT AGREEMENT


 


THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”)
is made as of September 7, 2004 by and between Greg Torres (“Officer”),
and National Mentor, Inc., a Delaware corporation (“Employer”).


 


WHEREAS, Officer and Employer are party to that
certain Employment Agreement, dated September 29, 1999, as amended by the
First Amendment thereto, dated March 9, 2001 (as amended from time to
time, the “Prior Employment Agreement”); and


 


WHEREAS, Employer and Officer desire to amend
and restate the Prior Employment Agreement as set forth in this Agreement;


 


NOW,
THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements contained in this Agreement, the parties agree
as follows:


 


STATEMENT OF AGREEMENT


 


1.                                       Employment.
Employer agrees to employ Officer, and Officer accepts such employment in
accordance with the terms of this Agreement until Officer’s employment with
Employer is terminated pursuant to this Agreement.


 


2.                                       Position
and Duties of Officer. Until September 7, 2004, Officer will serve as
President and Chief Executive Officer of Employer, from September 8, 2004
until on or about December 31, 2004, Officer will serve as Chief Executive
Officer and Executive Chairman of the Board of Directors of Employer (the “Board”)
and from on or about January 1, 2005 until Officer’s employment with
Employer is terminated pursuant to this Agreement, Officer will serve as
Executive Chairman of the Board of Directors of Employer. Until September 7,
2004, Officer agrees to serve as President and Chief Executive Officer, or in
such other positions of a similar status or level as Employer determines from
time to time, and to perform the commensurate duties that Employer may assign
from time to time to Officer. From September 8, 2004 until such time as
Officer’s employment with Employer is terminated pursuant to this Agreement,
Officer agrees to serve in the positions as set forth above, to perform the
commensurate duties that Employer may assign from time to time to Officer and
to be responsible for developing and building the Boards of Directors of
Employer and its affiliates, executive leadership development, annual budget
review and comment, high level state field reviews, government lobbying, liquidity
development and broad strategic development. In addition, Officer shall be
responsible for the transition of Edward Murphy into the position of President
of Employer on or about September 7, 2004 and into the position of
President and Chief Executive Officer of Employer on or about January 1,
2005.


 


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Beginning on or about September 8,
2004, Officer shall not have any officers or employees of Employer or its
affiliates reporting directly to him.


 


3.                                       Time
Devoted and Location of Officer.


 


(a)                                  Subject
to the early termination of Officer’s employment pursuant to this Agreement and
Section 3(c), (i) until December 31, 2004, Officer will
devote his full business time and energy to the business affairs and interests
of Employer, (ii) from January 1, 2005 to September 30, 2005,
Officer will devote approximately 80% (more or less as required) of his full
business time and energy to the business affairs and interests of Employer
(e.g., averaging four full working days per week) and (iii) from October 1,
2005 until such time as Officer’s employment with Employer is terminated
pursuant to this Agreement, Officer will devote approximately 30% (more or less
as required) of his full business time and energy to the business affairs and
interests of Employer (e.g., averaging one to two full working days per week).
During his employment hereunder, Officer will use his best efforts and
abilities to promote Employer’s interests and will diligently endeavor to
perform the services contemplated by this Agreement in a manner consistent with
his position and in accordance with, the policies established by the Employer
and provided to Officer from time to time.


 


(b)                                 Officer’s
primary business office and normal place of work will be located at Employer’s
corporate office in Boston, Massachusetts.


 


(c)                                  Officer may serve as an officer,
director, agent or employee of any direct or indirect subsidiary or other
affiliate of Employer, but may not serve as an officer, director, agent or employee
of any other business enterprise without the written approval of the Board;
provided, that Officer may serve in any capacity with any civic, educational or
charitable organization, or any governmental entity or trade association,
without seeking or obtaining such written approval of the Board, if such
activities and services do not interfere or conflict with the performance of
Officer’s duties under this Agreement.


 


4.                                       Compensation.


 


(a)                                  Base
Salary. From October 1, 1999 until September 7, 2004, Employer
will pay Officer a base salary as provided in the Prior Employment Agreement.
For the period from September 8, 2004 until December 31, 2004,
Employer will pay Officer a base salary at a rate of $290,000 per year. For the
period from January 1, 2005 to September 30, 2005, Employer will pay
Officer a base salary at a rate of $240,000 per year. For periods on and after October 1,
2005, Employer will pay Officer a base salary at a rate of $100,000 per year or
such higher amount as the compensation committee of the Board may determine in
its discretion from time to time. Such salary shall be paid in accordance with
Employer’s normal payroll schedule less appropriate withholdings for
federal and state taxes and other deductions authorized by Officer.


 


(b)                                 Benefits.
Officer will be eligible to participate in all benefit plans


 


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in effect as of September 7,
2004 to the same extent as they are made available to other senior executives
of Employer for so long as he shall remain employed by Employer pursuant to
this Agreement. Officer will receive separate information detailing the terms
of the benefit plans and the terms of such plans will control. Notwithstanding
the foregoing or in any benefit plan, program, agreement or arrangement of
Employer or its affiliates, (i) for periods on and after October 1,
2004, Officer shall no longer be a participant in any bonus, stock option,
incentive or similar plan, program, agreement or arrangement of Employer or its
affiliates, (ii) on September 7, 2004, all of Officer’s options to
acquire capital stock of National Mentor Holdings, Inc. shall
automatically be cancelled and terminated for no additional payment or
consideration and Officer shall return to Employer all originals and copies of
stock option agreements or similar agreements evidencing or documenting such
options and (iii) for periods on and after January 1, 2005, Officer
shall no longer be entitled to defer any additional compensation or be entitled
to have additional discretionary contributions made on his behalf under
Employer’s Executive Deferred Compensation Plan, originally adopted on March 9,
2001. Until termination of Officer’s employment pursuant to this Agreement,
Officer shall be entitled to the use of an office in connection with the
performance of his duties hereunder chosen and provided by Employer consistent
with Section 3(b) above.


 


5.                                       Expenses.
During the term of this Agreement, Employer will reimburse Officer promptly for
all reasonable travel, entertainment, parking, business meetings and similar
expenditures in pursuance and furtherance of Employer’s business upon receipt
of reasonably supporting documentation as required by Employer’s policies
applicable to its officers and employees generally.


 


6.                                       Termination.


 


(a)                                  Termination
Due to Resignation and Termination with Cause. Except as otherwise set
forth in this Agreement, this Agreement, Officer’s employment, and Officer’s
rights to receive compensation and benefits from Employer, will terminate upon the
occurrence of any of the following events: (i) the effective date of
Officer’s resignation without good reason, or (ii) termination for cause
at the discretion of Employer under the following circumstances: (a) Officer’s
commission of an act of fraud or dishonesty involving his duties on behalf of
Employer; (b) Officer’s willful failure or refusal to faithfully and
diligently perform material duties assigned to Officer consistent with Section 2
above, or other breach of any material term under this Agreement; (c) Officer’s
willful failure or refusal to abide by Employer’s material policies, rules,
procedures or directives; or (d) Officer’s conviction of a felony or a
misdemeanor involving moral turpitude. If Officer is terminated pursuant to
this Section 6(a), Employer’s only remaining financial obligation
to Officer under this Agreement will be to pay any earned but unpaid base
salary and accrued but unpaid vacation and reimbursable travel and
entertainment expenses through the date of Officer’s termination.


 


For the events described
in Sections 6(a)(ii)(b) and (c), Employer will give Officer written
notice of such event and a reasonable opportunity to cure such situation, but
in no event less than thirty (30) days.


 


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(b)                                 Termination
Without Cause. Officer may terminate his employment without cause at any
time by giving thirty (30) days written notice of resignation to Employer.
Employer may terminate this Agreement without cause at any time by giving thirty
(30) days prior written notice to Officer. If Employer terminates this
Agreement without cause, Employer may direct Officer to cease providing
services immediately. If Employer terminates this Agreement without cause on or
before December 31, 2004, Employer shall continue to pay Officer the
compensation provided for in Section 4(a) of this Agreement
for the period of time from the date of such termination until December 31,
2004. No other benefits or compensation will be paid to Officer if he is
terminated pursuant to this Section 6(b) unless otherwise
provided for in the terms of the applicable plan or benefit.


 


(c)                                  Termination
by Officer for Good Reason. Officer may terminate this Agreement, and his
employment with Employer, for “good reason” upon the occurrence of any
of the following:


 


(i)                                     a requirement by Employer that Officer
relocate his primary business office more than 25 miles from its current
location in order to fulfill Officer’s duties under this Agreement;


 


(ii)                                  the
failure of Employer to comply with Section 4; or


 


(iii)                               any
material breach of this Agreement by Employer; or


 


(iv)                              the assignment to Officer of duties
materially inconsistent with his title at such time and with his duties under
this Agreement at such time.


 


Notwithstanding the foregoing
or anything to the contrary, the retention and/or assumption of duties or
responsibilities by Edward Murphy that would otherwise have been duties or
responsibilities of Officer shall not be deemed to constitute, nor shall they
be taken into account in determining whether there has been, “good reason” for
purposes of this Agreement.


 


Prior
to terminating this Agreement pursuant to this Section, Officer shall give to
Employer written notice of his “good reason” for terminating this Agreement and
provide Employer with a reasonable period in which to contest or correct the “good
reason”, but in no event less than thirty (30) days. In the event of a
termination for “good reason” pursuant to this Section prior to December 31,
2004, Officer will be entitled to receive all compensation and benefits
provided for in this Agreement for a termination by Employer without cause on
or before December 31, 2004.


 


(d)                                 Automatic
Termination. This Agreement will terminate automatically upon the death or
permanent disability of Officer. Officer will be deemed to be “Disabled”
or to suffer from a “Disability” within the meaning of this Agreement
if, because of a physical or mental impairment, Officer has been unable to
perform the


 


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essential functions of
his position for a period of 180 consecutive days, or if Officer can reasonably
be expected to be unable to perform the essential functions if his position for
such period. The term “essential duties” is defined as the ability to
consistently perform his assigned duties, including travel requirements.
Subject to continuing coverage under applicable benefit plans, and except as
otherwise provided in this Agreement, if Officer is terminated pursuant to this
Section 6(d), Employer’s only remaining financial obligation to
Officer under this Agreement will be to pay any earned but unpaid base salary
and accrued but unpaid vacation and reimbursable travel and entertainment
expenses through the date of Officer’s termination.


 


(e)                                  Effect
of Termination. Except as otherwise provided for in this Agreement, upon
termination of this Agreement, all rights and obligations under this Agreement
will cease except for the rights and obligations under Sections 4 and 5
to the extent Officer has not been compensated or reimbursed for services
performed prior to termination or has not been paid vacation and reimbursable
travel and entertainment expenses accrued through the termination date (the
amount of compensation to be prorated for the portion of the pay period prior
to termination); the rights and obligations under Sections 8, 9 and 10;
and all procedural and remedial provisions of this Agreement. A termination of
this Agreement will constitute a termination of Officer’s employment with
Employer.


 


7.                                       Management
Stock Purchase Agreement. On or about September 7, 2004, Officer and
National Mentor Holdings, Inc. (“Holdings”) will enter into an
amendment to the Management Stock Purchase Agreement, dated March 9, 2001,
between Officer and Holdings, and to the Management Stock Purchase Agreement,
dated May 31, 2003, between Officer and Holdings, in each case,
substantially in the form of Exhibit B hereto.


 


8.                                       Protection of Confidential
Information/Non-Competition/Non-Solicitation.


 


Officer covenants and agrees
as follows:


 


(a)                                  During
Employer’s employment of Officer and for a period of eighteen (18) months
following the termination of Officer’s employment for any reason, Officer will
not use or disclose, directly or indirectly, for any reason whatsoever or in
any way, other than at the direction of Employer (with the written consent of
National Mentor Holdings, Inc.) during the course of Officer’s employment,
or following the termination of Officer’s employment after receipt of the prior
written consent of Employer, any confidential information or trade secrets of
Employer or its controlled subsidiaries or affiliates, including, but not
limited to, the following: lists of past, current or potential customers of
Employer and its controlled subsidiaries and affiliates; all systems, manuals,
materials, processes and other intellectual property of any type used by
Employer or its controlled subsidiaries and affiliates in connection with their
respective business operations; financial statements, cost reports and other
financial information; contract proposals and bidding information; rate and fee
structures; policies and procedures developed as part of a confidential
business plan; and management systems and procedures, including manuals and
supplements (collectively, the “Confidential


 


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Information”).
The obligation not to use or disclose any Confidential Information will not
apply to (i) any Confidential Information known by Officer before
commencing employment with Employer, (ii) Confidential Information which
Officer obtains from a third party, provided Officer has no actual or
constructive knowledge that the third party obtained the Confidential
Information by wrongful or inappropriate means, (iii) following the
termination of the employment of Officer with Employer, to any information that
is or becomes public knowledge through no fault of Officer, and that may be
utilized by the public without any direct or indirect obligation to Employer,
but the termination of the obligation for non-use or nondisclosure by reason of
such information becoming public will extend only from the date such
information becomes public knowledge, or (iv) disclosure compelled by
legal process. The above will be without prejudice to any rights or remedies of
Employer under any state or federal law protecting trade secrets or other
information.


 


(b)                                 Officer covenants and agrees that during
the term of his employment with Employer and for a period of twelve (12) months
immediately following the termination of said employment for any reason, he
will not, directly or indirectly, seek, obtain or accept a “Competitive
Position” in the “Restricted Territory” with a “Competitor”
of Employer.


 


The
following definitions shall apply to this Section:


 


“Competitor”
means any business, individual, partnership, joint venture, association, firm,
corporation or other entity engaged, wholly or in part, in the provision or
sale of therapeutic foster care or other home or community-based healthcare or
human services (the “Competitive Business”).


 


“Competitive
Position” means any position (including a consulting position) or
employment with a “Competitor” of Employer in which Officer is engaged in
corporate or operational management of the part of such Competitor’s business
which constitutes a Competitive Business.


 


“Restricted Territory”
is the geographic area set forth in Exhibit A to this Agreement.
The parties agree to review the geographic area included within the Restricted
Territory from time to time at either party’s request and the Restricted
Territory will thereafter be modified so that its coverage extends to, but only
to, the geographic area necessary to protect the interest of the Employer and
its controlled subsidiaries and affiliates engaged in the provision or sale of
therapeutic foster care or other home or community-based healthcare or human
services. No such reformation will be valid unless it is evidenced by written
amendment to this Agreement and signed by both parties.


 


(c)                                  To
protect the goodwill of Employer and its controlled subsidiaries and
affiliates, or the customers of Employer and its controlled subsidiaries and
affiliates, Officer agrees that, for a period of eighteen months immediately
following the termination of his employment with Employer, he will not, without
the prior written


 


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permission of Employer,
directly or indirectly, for himself or herself or on behalf of any other person
or entity, solicit, divert away, take away or attempt to solicit or take away
any customer of Employer for purposes of providing or selling or providing
therapeutic foster care or other home or community-based healthcare or human
services if Employer, or the particular controlled subsidiary or affiliate of
Employer, is then still engaged in the sale or provision of such services at
the time of the solicitation. For purposes of this Section 8(c), “Customer”
means any individual or entity to whom Employer or its controlled subsidiaries
or affiliates has provided, or contracted to provide, therapeutic foster care
or other home or community-based healthcare or human services, and with whom
Officer had, alone or in conjunction with others, Material Contact during the
twelve months prior to the termination of her employment. For purposes of this Section 8(c),
Officer had “Material Contact” with a customer if (i) Officer had
business dealings with the customer on behalf of Employer or its controlled
subsidiaries or affiliates; (ii) Officer was responsible for supervising
or coordinating the dealings between the customer and Employer or its
controlled subsidiaries or affiliates; or (iii) Officer obtained trade
secrets or confidential information about the customer as a result of Officer’s
association with Employer or its controlled subsidiaries or affiliates.


 


(d)                                 During Employer’s employment of Officer
and for a period of eighteen (18) months following the termination of Officer’s
employment with Employer for any reason, Officer will not solicit for
employment, directly or indirectly, any employee of Employer or any of its
controlled subsidiaries or affiliates who was employed with Employer or its
controlled subsidiaries or affiliates within the one-year period immediately
prior to Officer’s termination.


 


(e)                                  Employer
may, with the prior written consent of National Mentor Holdings, Inc.,
waive compliance with one or more of the covenants of Officer set forth in this
Section 8 for the purpose of facilitating the negotiation of the
acquisition of Employer by a third party. Such a waiver must be made in writing
and executed by Employer and National Mentor Holdings, Inc., and shall be
effective only with respect to the acts specifically described therein.


 


9.                                       Work
Made for Hire. Officer agrees that any written program materials,
protocols, research papers and all other writings (the “Work”), which
Officer develops for Employer’s use, or for use by Employer’s controlled
subsidiaries or affiliates, during the term of this Agreement, will be
considered “work made for hire” within the meaning of the United States
Copyright Act, Title 17, United States Code, which vests all copyright interest
in and to the Work in the Employer. In the event, however, that any court of
competent jurisdiction finally declares that the Work is not or was not a work
made for hire as agreed, Officer agrees to assign, convey, and transfer to the
Employer all right, title and interest Officer may presently have or may have
or be deemed to have in and to any such Work and in the copyright of such work,
including but not limited to, all rights of reproduction, distribution,
publication, public performance, public display and preparation of derivative
works, and all rights of ownership and possession of the original fixation of
the Work and any and all copies. Additionally, Officer agrees to execute any
documents necessary for Employer to record and/or perfect its ownership of the
Work


 


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and the applicable
copyright. The foregoing will not apply to any writing Officer develops which
are not for Employer’s use or are in each instance specifically excluded in
advance of publication from the coverage of the foregoing by the Board.


 


10.                                 Property
of Employer. Officer agrees that, upon the termination of Officer’s employment
with Employer, Officer will immediately surrender to Employer all property,
equipment, funds, lists, books, records and other materials of Employer or its
controlled subsidiaries or affiliates in the possession of or provided to
Officer, provided, however, Officer shall be entitled to retain individualized
bound volumes of transaction documents in which Officer provided services.


 


11.                                 Governing
Law. This Agreement and all issues relating to the validity, interpretation
and performance will be governed by and interpreted under the laws of the State
of Massachusetts.


 


12.                                 Remedies.
Employer and Officer agree that an actual or threatened violation by Officer of
the covenants and obligations set forth in Sections 8, 9 and 10 will cause
irreparable harm to Employer or its controlled subsidiaries or affiliates and
that the remedy at law for any such violation will be inadequate. Officer
agrees, therefore, that Employer or its controlled subsidiaries or affiliates
will be entitled to appropriate equitable relief, including, but not limited
to, a temporary restraining order and a preliminary injunction, without the
necessity of posting a bond. The provisions of Sections 8, 9 and 10 will
survive the termination of this Agreement in accordance with the terms set forth
in each Section.


 


13.                                 Arbitration. Except for an action for injunctive
relief as described in Section 12, any disputes or controversies arising
under this Agreement will be settled by arbitration in Boston, Massachusetts in
accordance with the rules of the American Arbitration Association relating
to the arbitration of employment disputes. The determination and finding of
such arbitrators will be final and binding on all parties and may be enforced,
if necessary, in any court of competent jurisdiction.


 


14.                                 Notices.
Any notice or request required or permitted to be given to any party will be
given in writing and, excepting personal delivery, will be given at the address
set forth below or at such other address as such party may designate by written
notice to the other party to this Agreement:


 


	
  To Officer:

  	
  Greg Torres

  
	
   

  	
  25 Wildwood Street

  
	
   

  	
  Winchester, MA
  01890

  
	
   

  	
   

  
	
  To Employer:

  	
  National Mentor, Inc.

  
	
   

  	
  313 Congress Street

  
	
   

  	
  Boston,
  Massachusetts 02210

  
	
   

  	
  Attention: General
  Counsel

  
	
   

  	
  Facsimile: 617-790-4941

  



 


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  With a copy to:

  	
  National Mentor
  Holdings, Inc.

  
	
   

  	
  c/o Madison Dearborn
  Capital Partners, LLC

  
	
   

  	
  Three First National
  Plaza, Suite 3800

  
	
   

  	
  Chicago, Illinois 60602

  
	
   

  	
  Attention: Timothy
  Sullivan

  
	
   

  	
  Fax No. (312) 895-1001

  



 


Each notice given in
accordance with this Section will be deemed to have been given, if
personally delivered, on the date personally delivered; if delivered by
facsimile transmission, when sent and confirmation of receipt is received; or,
if mailed, on the third day following the day on which it is deposited in the
United States mail, certified or registered mail, return receipt requested,
with postage prepaid, to the address last given in accordance with this
Section.


 


15.                                 Headings.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and should not be construed or interpreted to
restrict or modify any of the terms or provisions of this Agreement.


 


16.                                 Severability.
If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future laws effective during the term of this
Agreement, such provision will be fully severable and this Agreement and each
separate provision will be construed and enforced as if such illegal, invalid
or unenforceable provision had never comprised a part of this Agreement, and
the remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid or unenforceable provision or
by its severance from this Agreement. In addition, in lieu of such illegal,
invalid or unenforceable provision, there will be added automatically, as a
part of this Agreement, a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and legal, valid and
enforceable, if such reformation is allowable under applicable law.


 


17.                                 Binding
Effect. This Agreement will be binding upon and shall inure to the benefit
of each party and each party’s respective successors, heirs and legal
representatives. This Agreement may not be assigned by Officer to any other
person or entity but may be assigned by Employer to any wholly-owned subsidiary
or affiliate of Employer or to any successor to or transferee of all, or any
part, of the stock or assets of Employer.


 


18.                                 Employer
Policies, Regulations and Guidelines for Officers. Employer may issue
policies, rules, regulations, guidelines, procedures or other material, whether
in the form of handbooks, memoranda, or otherwise, relating to its officers.
These materials are general guidelines for Officer’s information and will not
be construed to alter, modify or amend this Agreement for any purpose
whatsoever.


 


19.                                 Entire
Agreement. This Agreement embodies the entire agreement and understanding
between the parties with respect to its subject matter and supersedes all


 


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prior agreements and
understandings, whether written or oral, relating to its subject matter,
including, without limitation, the Prior Employment Agreement, unless expressly
provided otherwise within this Agreement. No amendment or modification of this
Agreement will be valid unless made in writing and signed by each of the
parties and countersigned by Madison Dearborn Capital Partners, LLC. No
representations, inducements or agreements have been made to induce either
Officer or Employer to enter into this Agreement which are not expressly set
forth within this Agreement. Officer and Employer acknowledge and agree that
Employer’s whollyowned subsidiaries and affiliates are express third party
beneficiaries of this Agreement.


 


*                                         *                                         *                                         *                                         *


 


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IN
WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Employment Agreement as of the date first above written.


 


	
  GREG
  TORRES

  	
  NATIONAL
  MENTOR, INC.

  
	
  “Officer”

  	
   

  	
  “Employer”

  
	
   

  	
   

  
	
  /s/ Gregory Torres

  	
   

  	
   

  	
  By:

  	
  /s/ Christina Pak

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Christina Pak

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  	
   

  
								



 





















 


EXHIBIT A


 


Restricted
Territory


 


The Restricted Territory
is any location within a radius of fifty (50) miles of any existing operation
of Employer, or its affiliates or controlled subsidiaries, engaged in the
provision or sale of therapeutic foster care or other home or community-based
healthcare or human services.