Exhibit 10.5


 


EXECUTION COPY


 


AMENDED AND RESTATED

EMPLOYMENT AGREEMENT


(Gregory Torres)


 


THIS AGREEMENT (this “Agreement”),
is made as of June 29, 2006, by and between National
Mentor Holdings, Inc. (the “Company”), and Gregory Torres (“Employee”).


 


WHEREAS, an Agreement and
Plan of Merger has been entered into by and among NMH Holdings, LLC, a Delaware
limited liability company (“Parent”), NMH Mergersub, Inc. a Delaware
Corporation wholly owned by Parent, and National Mentor Holdings, Inc., a
Delaware corporation, pursuant to which the Company shall become a wholly owned
subsidiary of Parent (the “Transaction”);


 


WHEREAS, upon the closing of
the Transaction (the date of such closing, the “Closing Date”), the
Company desires to retain the services of the Employee and the Employee desires
to be so retained by the Company, on the terms and subject to the conditions
more fully set forth in this Agreement;


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth in this
Agreement, the Company and the Employee agree as follows:


 


1.             Employment/Duties.


 


a.             The Company hereby retains the Employee, and
the Employee hereby agrees to serve, as a non-executive employee of the
Company, on the terms and subject to the conditions of this Agreement. The
Employee will, at the request of the Board of Directors or the Chief Executive
Officer of the Company (the “CEO”), provide such services, and perform
such duties and responsibilities, as may reasonably be requested by the Board
or the CEO, as applicable, including, without limitation, as requested,
assisting in fostering industry relations for the benefit of the Company and
its affiliates and developing Company strategy and internal management. In
connection with the performance of Employee’s services hereunder, Employee will
be available to perform his services hereunder during normal business hours for
a reasonable amount of time, as reasonably determined by the Company, at the
request of the Company and/or the Parent.


 


2.             Term; Termination.


 


a.             Term. The term of the Employee’s employment under this Agreement (the “Employment
Term”) shall commence on Closing Date and shall continue until the earlier
of (i) the third anniversary of the Closing Date (the “initial term”) and (ii)
an earlier termination, pursuant to Section 2(b) hereof, unless terminated
earlier in accordance with the terms of this Agreement. Upon the expiration of
the initial term, this Agreement will renew automatically on such date and on
each anniversary thereof for a one-year term. If either party desires not to
renew the term of the Agreement, they must provide the other party with written


 

















 


notice of their intent not to renew the
Agreement at least sixty (60) days prior to the next renewal date.


 


b.             Termination. This Agreement and Employee’s employment hereunder may be terminated
by the Company or by the Employee at any time for any reason, upon written
notice by either party, in which event this Agreement will terminate as of the
last day of the month in which such notice is given.


 


3.             Compensation.


 


a.             Salary. The Company shall pay Employee a base salary of $100,000 annually (Base
Salary”), payable bi-weekly in arrears at the monthly rate of $8,333.33
during the Employment Term, payable on the last day of each month during the
Employment Term.


 


b.             End of Term Bonus. If this Agreement terminates by the mutual
consent of the parties hereto, or if the Company terminates this Agreement
without Cause (as defined below), the Company shall pay Employee an end of term
bonus equal to $100,000 (the “Bonus”), payable bi-weekly in arrears at
the monthly rate of $8,333.33 for twelve months after such termination.
Employee shall be entitled to the full Bonus, payable in accordance with the
preceding sentence, provided that he continues to comply with Sections
6, 7 and 8 hereof.


 


4.             Expenses. The Employee is authorized to incur reasonable expenses (including,
without limitation, reasonable expenditures for supplies, office and
administrative expenses, travel, lodging, food and related expenses) while
performing the services for which he is retained under this Agreement. The
Company shall reimburse the Employee for such expenses upon presentation by the
Employee from time to time of appropriately itemized and approved (consistent
with the Company’s policy) accounts of such expenditures.


 


5.             Definitions.


 


a.             “Cause” shall mean: (A) the commission
by the Executive of an act of fraud or embezzlement, (B) the indictment or
conviction of the Executive for a (x) felony or (y) a crime involving moral
turpitude or a plea by Executive of guilty or nolo contendere involving such a
crime (to the extent such crime results in a adverse effect on the business or
reputation of the Company), (C) the willful misconduct by the Executive in the
performance of Executive’s duties, including any willful misrepresentation or
willful concealment by Executive on any report submitted to the Company (or any
of its securityholders or subsidiaries) that is other than de minimis, (D) the
violation by Executive of a written Company policy regarding substance abuse,
sexual harassment or discrimination or any other material written policy of the
Company regarding employment, (E) the willful failure of the Executive to
render services to the Company or any of its subsidiaries in accordance with
Executive’s employment which failure amounts to a material neglect of the
Executive’s duties to the Company or any of its subsidiaries, (F) the failure
of the Executive to comply with reasonable directives of the Board or the Chief
Executive Officer of the Company consistent with the Executive’s duties or (G)
the material breach by Executive of any of the provisions of any agreement
between Executive, on the one hand, and the Company or a securityholder or an
affiliate of the Company, on the other hand.


 


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Notwithstanding the foregoing, with respect to
clauses (C), (D), (E), (F) and (G) above, Executive’s termination of employment
with the Company shall not be deemed to have been terminated for Cause unless
and until Executive has been provided written notice of the Company’s intention
to terminate his employment for Cause and the specific facts relied on; ten
(10) business days from the receipt of such notice to cure any such conduct or
omission giving rise to a termination for Cause; and Executive does not cure
any such conduct or omission within such ten-day period.


 


6.             Nondisclosure of Confidential Information.


 


a.             Employee will not at any time (whether during
or after Employee’s employment with the Company), other than in the ordinary
course of performing services for the Company, (x) retain or use for the
benefit, purposes or account of Employee or any other person, firm,
partnership, joint venture, association, corporation or other business organization,
entity or enterprise whatsoever (“Person”); or (y) disclose, divulge,
reveal, communicate, share, transfer or provide access to any Person outside
the Company (other than its professional advisers who are bound by
confidentiality obligations), any non-public, proprietary or confidential
information obtained by Employee in connection with the commencement of
Employee’s employment with the Company or at any time thereafter during the
course of Employee’s employment with the Company — including without limitation
trade secrets, know-how, research and development, software, databases,
inventions, processes, formulae, technology, designs and other intellectual
property, information concerning finances, investments, profits, pricing,
costs, products, services, vendors, customers, clients, partners, investors,
personnel, compensation, recruiting, training, advertising, sales, marketing,
promotions, government and regulatory activities and approvals — concerning the
past, current or future business, activities and operations of the Company
and/or any third party that has disclosed or provided any of the same to the
Company on a confidential basis (provided that with respect to such third party
Employee knows or reasonably should have known that the third party provided it
to the Company on a confidential basis) (“Confidential Information”)
without the prior written authorization of the Board of Directors of the
Company; provided, however, that in any event Employee shall be permitted to
disclose any Confidential Information reasonably necessary (i) to perform
Employee’s duties while employed with the Company or (ii) in connection with
any litigation or arbitration involving this or any other agreement entered
into between Employee and the Company before, on or after the date of this
Agreement in connection with any action or proceeding in respect thereof.


 


b.             Confidential Information shall not include
any information that is (i) generally known to the industry or the public other
than as a result of Employee’s breach of this covenant or any breach of other
confidentiality obligations by third parties to the extent the Employee knows
or reasonably should have known of such breach by such third parties; (ii) made
legitimately available to Employee by a third party (unless Employee knows or
reasonably should have known that such third party has breached any
confidentiality obligation); or (iii) required by law or by any court,
arbitrator, mediator or administrative or legislative body (including any
committee thereof) with actual or apparent jurisdiction to order Employee to
disclose or make accessible any information; provided that, with respect to
clause (iv) Employee, except as otherwise prohibited by law or regulation,
shall give prompt written notice to the Company of such requirement, disclose
no more information than is so required, and shall


 


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reasonably cooperate with any attempts by the
Company, at its sole cost, to obtain a protective order or similar treatment
prior to making such disclosure.


 


c.             Except as required by law or otherwise set
forth in clause (iv) of Section 6(b) above, or unless or until publicly
disclosed by the Company, Employee will not disclose to anyone, other than
Employee’s immediate family and legal, tax or financial advisors, the existence
or contents of this Agreement; provided that Employee may disclose (i) to any
prospective future employer the provisions of this Agreement provided they
agree to maintain the confidentiality of such terms or (ii) in connection with
any litigation or arbitration involving this Agreement.


 


d.             Upon termination of Employee’s employment
with the Company for any reason, Employee shall (i) cease and not thereafter
commence use of any Confidential Information or intellectual property
(including without limitation, any patent, invention, copyright, trade secret,
trademark, trade name, logo, domain name or other source indicator) if such
property is owned or used by the Company; (ii) immediately destroy, delete, or return
to the Company, at the Company’s option, all originals and copies in any form
or medium (including memoranda, books, papers, plans, computer files, letters
and other data) in Employee’s possession or control (including any of the
foregoing stored or located in Employee’s office, home, laptop or other
computer, whether or not Company property) that contain Confidential
Information or otherwise relate to the business of the Company, except that
Employee may retain only those portions of any personal notes, notebooks and
diaries that do not contain Confidential Information; and (iii) notify and
fully cooperate with the Company regarding the delivery or destruction of any
other Confidential Information of which Employee is or becomes aware to the
extent such information is in Employee’s possession or control. Notwithstanding
anything elsewhere to the contrary, Employee shall be entitled to retain (and
not destroy) information showing Employee’s compensation or relating to
reimbursement of expenses that Employee reasonably believes is necessary for
tax purposes and copies of plans, programs, policies and arrangements of, or
other agreements with, the Company addressing Employee’s compensation or
employment or termination thereof.


 


7.             Non-Competition; Non-Solicitation;
Non-Interference.


 


a.             Non-Competition. During the term of Employee’s employment
and during the one year immediately following (x) the date of any termination
of Employee’s employment with the Company by the Company with or without Cause
and (y) if earlier than the date referenced in clause (x) hereof, the date that
notice is given by Employee to the Company of Employee’s termination of this
Agreement and his performance of services hereunder for any reason (other than
due to Employee’s death) (such period, the “Restricted Period”), Employee will
not, directly or indirectly:


 


(i)  engage in any business that
competes, wholly or in part, as of the Relevant Date (as defined below), in the
provision or sale of acquired brain injury services, therapeutic foster care,
other foster care or other home or community based healthcare, therapy,
counseling or other educational or human services to people with special needs,
or any other businesses that the Company is actively conducting or is actively
considering conducting at the time of Employee’s termination of employment (so
long as Employee knows or reasonably should have


 


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known about such plan(s)),
in each case, anywhere in the United States (a “Competitive Business”);


 


(ii)  enter the employ of, or
render any services to, any Person (or any division or controlled or
controlling affiliate of any Person) who or which is a Competitive Business as
of the date Employee enters such employment or renders such services; or


 


(iii)  acquire a financial
interest in, or otherwise become actively involved with, any Competitive
Business which is a Competitive Business as of the date of such acquisition or
involvement, directly or indirectly, as an individual, partner, shareholder,
officer, director, principal, agent, trustee or Employee.


 


(iv)  Notwithstanding the
provisions of Section 7(a)(i), (ii) or (iii) above, nothing contained in
Section 7(a) shall prohibit Employee from (i) investing, as a passive investor,
in any publicly held company provided that Employee’s beneficial ownership of
any class of such publicly held company’s securities does not exceed one
percent (1%) of the outstanding securities of such class, (ii) entering the
employ of any academic institution or governmental or regulatory
instrumentality of any country or any domestic or foreign state, county, city
or political subdivision, or (iii) providing services to a subsidiary or
affiliate of an entity that controls a separate subsidiary or affiliate that is
a Competitive Business, so long as the subsidiary or affiliate for which
Employee may be providing services is not itself a Competitive Business and
Employee is not, as an Employee of such subsidiary or affiliate, engaging in
activities that would otherwise cause such subsidiary or affiliate to be deemed
a Competitive Business.


 


b.             Non-Solicitation of Clients. During the Restricted Period, Employee will
not, whether on Employee’s own behalf or on behalf of or in conjunction with
any Person, directly or indirectly solicit or assist in soliciting the business
of, any investment from, or any opportunity to make an investment in, any
client or prospective client of the Company, in all such cases determined as of
the Relevant Date (collectively, the “Clients”):


 


(i)  with whom Employee had
personal contact or dealings on behalf of the Company during the one-year
period immediately preceding Employee’s termination of employment;


 


(ii)  with whom employees of the
Company reporting to Employee have had personal contact or dealings on behalf
of the Company during the one-year period immediately preceding the Employee’s
termination of employment; or


 


(iii)  with whom Employee had
direct or indirect responsibility during the one-year period immediately
preceding Employee’s termination of employment.


 


For purposes of this Section 7, the term “Relevant Date” shall
mean, during the term of Employee’s employment, any date falling during such
time, and, for the period of time during the Restricted Period that falls after
the date of any termination of Employee’s employment with the Company, the
effective date of termination of Employee’s employment with the Company.


 


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c.             Non-Interference with Business Relationships. During the Restricted Period, Employee will
not interfere with, or attempt to interfere with, business relationships
(whether formed before, on or after the date of this Agreement) between the
Company, on the one hand, and any Client, customers, suppliers, partners, of
the Company, on the other hand, in any such case determined as of the Relevant
Date.


 


d.             Non-Solicitation of Employees;
Non-Solicitation of Employees.
During the term of Employee’s employment and during the Restricted Period,
Employee will not, whether on Employee’s own behalf or on behalf of or in
conjunction with any Person, directly or indirectly (other than in the ordinary
course of Employee’s employment with the Company on the Company’s behalf):


 


(i)  solicit or encourage any
employee of the Company to leave the employment of the Company; or


 


(ii)  hire any such employee who
was employed by the Company as of the date of Employee’s termination of
employment with the Company or who left the employment of the Company
coincident with, or within one year prior to or after, the termination of
Employee’s employment with the Company; or


 


(iii)  solicit or encourage to
cease to work with the Company any Employee that Employee knows, or reasonably
should have known, is then under contract with the Company.


 


e.             It is expressly understood and agreed that
although Employee and the Company consider the restrictions contained in this
Section 7 to be reasonable, if a final judicial determination is made by a
court of competent jurisdiction that the time or territory or any other
restriction contained in this Agreement is an unenforceable restriction against
Employee, the provisions of this Agreement shall not be rendered void but shall
be deemed amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be enforceable
(provided that in no event shall any such amendment broaden the time period or
scope of any restriction herein). Alternatively, if any court of competent
jurisdiction finds that any restriction contained in this Agreement is
unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.


 


8.             Intellectual Property.


 


a.             If Employee has created, invented, designed,
developed, contributed to or improved any inventions, intellectual property,
discoveries, copyrightable subject matters or other similar work of
intellectual property (including without limitation, research, reports,
software, databases, systems or applications, presentations, textual works,
content, or audiovisual materials) (“Works”), either alone or with third
parties, prior to or during Employee’s prior and current employment with the
Company, that are relevant to or implicated by such employment (“Prior Works”),
to the extent Employee has retained or does retain any right in such Prior
Work, Employee hereby grants the Company a perpetual, non-exclusive,
royalty-free, worldwide, assignable, sub-licensable license under all rights
and intellectual


 


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property rights (including rights under patent,
industrial property, copyright, trademark, trade secret, unfair competition and
related laws) therein to the extent of Employee’s rights in such Prior Work for
all purposes in connection with the Company’s current and future business.


 


b.             If Employee creates, invents, designs,
develops, contributes to or improves any Works, either alone or with third
parties, at any time during Employee’s employment by the Company and within the
scope of such employment and/or with the use of any the Company resources (“Company
Works”), Employee shall promptly and fully disclose same to the Company and
hereby irrevocably assigns, transfers and conveys, to the maximum extent
permitted by applicable law, and at the Company’s sole expense, all rights and
intellectual property rights therein (including rights under patent, industrial
property, copyright, trademark, trade secret, unfair competition and related
laws) to the Company to the extent ownership of any such rights does not vest
originally in the Company.


 


c.             Employee agrees to keep and maintain adequate
and current written records (in the form of notes, sketches, drawings, and any
other form or media requested by the Company) of all Company Works. The records
will be available to and remain the sole property and intellectual property of
the Company at all times.


 


d.             Employee shall take all requested actions and
execute all requested documents (including any licenses or assignments required
by a government contract) at the Company’s expense (but without further
remuneration) to assist the Company in validating, maintaining, protecting,
enforcing, perfecting, recording, patenting or registering any of the Company’s
rights in the Prior Works and Company Works as set forth in this Section 8. If
the Company is unable for any other reason to secure Employee’s signature on
any document for this purpose, then Employee hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as Employee’s
agent and attorney in fact, to act for and in Employee’s behalf and stead to
execute any documents and to do all other lawfully permitted acts in connection
with the foregoing.


 


e.             Except as may otherwise be required under
Section 8(a) above, Employee shall not improperly use for the benefit of, bring
to any premises of, divulge, disclose, communicate, reveal, transfer or provide
access to, or share with the Company any confidential, proprietary or
non-public information or intellectual property relating to a former employer
or other third party which Employee knows or reasonably should have known is
confidential, proprietary or non-public information or intellectual property of
such third party without the prior written permission of such third party.
Employee hereby indemnifies, holds harmless and agrees to defend the Company
and its officers, directors, partners, Employees, agents and representatives
from any breach of the foregoing covenant. Employee shall comply with all
relevant policies and guidelines of the Company, including regarding the
protection of confidential information and intellectual property and potential
conflicts of interest. Employee acknowledges that the Company may amend any
such policies and guidelines from time to time, and that Employee remains at
all times bound by their most current version.


 


f.              The provisions of Section 6, 7 and this
Section 8 shall survive the termination of Employee’s employment for any
reason.


 


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9.             Injunctive Relief. The Employee acknowledges that damages for
any breach of Sections 6, 7 and 8 of this Agreement will be difficult to
determine and inadequate to remedy the harm that may be caused and, therefore,
consents that the restrictions contained in such Sections may be enforced by
temporary or permanent injunction. Such injunctive relief shall be in addition
to and not in place of any other remedies available at law or in equity.


 


10.           Severability. If any provision of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such invalidity
or unenforceability shall not affect the remaining provisions hereof which
shall remain in full force and effect.


 


11.           Entire Agreement. The provisions contained herein constitute
the entire agreement between the parties with respect to the subject matter of
this Agreement and supersede any and all prior agreements, understandings and
communications between the parties, oral or written, with respect to such
subject matter.


 


12.           Modifications. Any waiver, alteration, amendment or
modification of any provisions of this Agreement shall not be valid unless in
writing and signed by the Company and the Employee.


 


13.           Assignment; Binding Effect. The Company may assign its rights and
delegate its obligations under this Agreement to any successor-in-interest to
its business, except such assignment shall not relieve the Company of any of
its duties and obligations under this Agreement without Employee’s prior
written consent. Except as provided in the previous sentence, neither party may
assign any of its or his rights or delegate any of its or his duties under this
Agreement without the consent of the other and any attempted assignment in
violation of this provision shall be void. Subject to the limitations set forth
in this Section 13, this Agreement shall be binding upon and inure to the
benefit of the successors-in-interest and permitted assigns of the Company and
the Employee.


 


14.           Notice. All notices and other communications required or permitted under this
Agreement shall be made in writing and shall be deemed given if delivered
personally, sent by registered or certified mail, (e.g., the equivalent of U.S.
registered mail) return receipt requested, postage prepaid, or sent by
nationally recognized overnight courier service, addressed as follows:


 


If to the Company:


 


National Mentor Holdings,
Inc.


c/o Vestar Capital Partners


245 Park Avenue, 41st Floor


New York, NY 10167


Attn: General Counsel


Telecopy: (212) 808-4922


 


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with a copy to:


 


Simpson Thacher &
Bartlett


425 Lexington Avenue


New York, New York 10017


Attention:  Alvin Brown, Esq.


(Fax #212-455-2502)


 


If to the Employee:


 


To the most recent address
of file with Company for the Employee


 


or to such other addresses
as a party shall designate in the manner provided in this Section 14. Any
notice or other communication shall be deemed given (a) on the date three (3)
business days after it shall have been mailed, if sent by certified mail or (b)
on the date one (1) business day after it shall have been given to a
nationally-recognized overnight courier service.


 


15.           Choice of Law. This Agreement shall be governed by and construed
in accordance with the law of Massachusetts, without regard to conflicts of
laws principles thereof.


 


16.           Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.


 


17.           Counterparts. This Agreement may be executed in one or
more counterparts, which shall, collectively and separately, constitute one
agreement.


 


IN WITNESS WHEREOF, the
Company and the Employee have executed this Agreement as of the date first
above written.


 


	
   

  	
  NATIONAL MENTOR HOLDINGS,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward Murphy

  	
   

  
	
   

  	
  Its:

  	
  President and Chief
  Executive Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
  /s/ Gregory Torres

  	
   

  
	
   

  	
  Gregory Torres

  
					



 


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