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Exhibit (c)(2)
AMENDMENT TO THE AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amendment to the Amended and Restated Employment Agreement (the
"AMENDMENT") is made as of June 23, 1999, to be effective as of the Closing Date
(as defined below) by and between Compuware Corporation, a Michigan corporation
(the "COMPANY"), Data Processing Resources Corporation, a California corporation
("DPRC"), and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (the "EMPLOYEE").
WHEREAS, DPRC and Employee are parties to that certain Amended and
Restated Employment Agreement dated as of May 26, 1999 (the "EMPLOYMENT
AGREEMENT").
WHEREAS, DPRC and Employee desire to amend the Employment Agreement in
connection with the transactions contemplated by that certain Agreement and Plan
of Merger dated as of the same date as this Amendment among Compuware
Corporation, Comp Acquisition Co. and Data Processing Resources Corporation (the
"MERGER AGREEMENT").
WHEREAS, Employee's employment with DPRC pursuant to the terms of this
Amendment shall serve as a material inducement for the Company to execute the
Merger Agreement and consummation of the transactions contemplated thereby.
WHEREAS, this Amendment shall be effective as of the Closing Date, as
such term is defined in the Merger Agreement.
NOW, THEREFORE, in consideration for the promises and obligations set
forth in this Amendment, the Company, DPRC and Employee agree to amend the
Employment Agreement in the manner as set forth below:
1. Delete and replace Section 1.2 of the Employment Agreement in its
entirety as follows:
This Agreement, as amended, effective as of the Closing Date as
defined in the Agreement and Plan of Merger dated as of June 23,
1999 among Compuware Corporation, Comp Acquisition Co. and Data
Processing Resources Corporation (the "Merger Agreement")
("Effective Date") shall, unless sooner terminated pursuant to
the terms set forth below, terminate on the third anniversary of
the Effective Date. The period during which Employee is employed
hereunder is referred to as the "Term."
2. Delete and replace Section 2.1 of the Employment Agreement in its
entirety as follows:
Employee shall serve in a position with the Company equivalent
to a senior manager of the Company as may be determined by the
Chief Executive Officer of Compuware Corporation, the parent
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company of DPRC (the "Company"), or his designee, during the
Term and shall devote the Employee's full-time efforts to such
duties and responsibilities as may be assigned to the Employee
from time to time by, and shall report to such Chief Executive
Officer, or his designee.
3. Delete Section 6.1 of the Employment Agreement in its entirety.
4. Delete and replace the first sentence of Section 12.2 of the Employment
Agreement in its entirety as follows:
It is understood by Employee that Employee shall be considered
to be an employee "at will" and DPRC may terminate Employee's
employment at any time without Cause (as defined below) by
giving Employee thirty (30) days' advance written notice of such
termination.
5. Insert subsection (vi) in Section 12.7(c) of the Employment Agreement as
follows:
(vi) Notwithstanding the foregoing provisions of Section
12.7(c) of the Agreement or any other provisions of the
Agreement to the contrary, the Employee agrees that (A)
if Employee is appointed by DPRC or the Company to a
position equivalent to a senior management position of
the Company following the Effective Date pursuant to
Section 2.1 of the Agreement and any amendment thereto,
it shall not constitute "Good Reason" for termination
under the provisions of the Employment Agreement and any
amendment thereto and (B) any change in Employee's
duties, responsibilities or reporting responsibility
from those in effect prior to the Effective Date, will
not be deemed to constitute "Good Reason" under the
Agreement and any amendment thereto; provided that
Employee shall not be required to report to any person
who reported to Employee prior to the Effective Date.
6. Insert the following sentences at the end of Section 3 of the Exhibit A,
as attached to the Employment Agreement as follows:
Notwithstanding any provision in the Agreement, the Company will
provide medical and life insurance benefits required by the
Agreement only if such benefits can be provided pursuant to any
existing insurance plan or policy (including self insurance
programs). If any such benefit cannot be so provided, the
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Company will make reasonably comparable benefits available to
Employee (including conversion benefits) at a cost not
substantially higher than the cost of providing such benefits to
an employee of the Company.
7. Delete and replace Section 6 of the Exhibit A, as attached to the
Employment Agreement, in its entirety as follows:
Subject to the determinations of the Compensation Committee of
the Company, Employee shall be eligible to participate in the
Company's executive bonus plan which is generally provided to
other executives in similar employment position as the Employee
and with comparable experience and similar responsibilities with
the Company as the Employee.
8. Delete and replace the first sentence of Section 8 of the Exhibit A, as
attached to the Employment Agreement, in its entirety and insert a new
second sentence prior to the current second sentence as follows:
With respect to any stock option grants by DPRC prior to the
Closing Date, as defined in the Merger Agreement, to the
Employee, such stock options shall vest in full on the Closing
Date as defined in the Merger Agreement. Notwithstanding any
provisions of this Agreement, as amended, to the contrary, any
stock options granted by the Company or DPRC on or after the
Closing Date, as defined in the Merger Agreement, shall be
subject to the terms and conditions of the stock option plan
from which such stock options were granted and in accordance
with the agreement evidencing such stock option grant.
9. To protect the interest of DPRC and the Company, Employee will agree to
sign the Company's standard confidentiality and inventions agreements
that are executed by other employees of the Company as a condition of
employment with the Company.
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IN WITNESS WHEREOF, the Employee has carefully read and considered the
provisions of this Amendment and agrees that all of the above-stated amendments
are fair and reasonable. The Employee indicates her acceptance of this Amendment
by signing and returning the enclosed copy of the Amendment where indicated
below.
COMPUWARE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Date: June 23, 1999
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DATA PROCESSING RESOURCES
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Date: June 23, 1999
-------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Date: June 23, 1999
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DATA PROCESSING RESOURCES CORPORATION
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of May
26, 1999, by and between DATA PROCESSING RESOURCES CORPORATION, a California
corporation ("DPRC"), and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ("Employee"), with reference to the
following:
A. DPRC and Employee are parties to that certain Employment Agreement
dated August 1, 1995, as amended pursuant to that certain letter of
understanding dated March 11, 1996 (the "Prior Employment Agreement").
B. DPRC and Employee now wish to amend and restate the Prior Employment
Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration for the promises and obligations set
forth below, DPRC and Employee agree as follows:
1. EMPLOYMENT AND TERM.
1.1 DPRC agrees to continue to employ Employee, and Employee
agrees to continue to be employed by DPRC, on the terms and
conditions described below.
1.2 The Prior Employment Agreement commenced on August 1, 1995 for
a term of four (4) years. This Agreement shall be effective as
of the date first set forth above (the "Effective Date") and
shall, unless sooner terminated pursuant to the terms set
forth below, terminate on the third anniversary of the
Effective Date. The period during which Employee is employed
by DPRC hereunder is referred to as the "Term." The Term shall
be automatically extended for a period of twelve (12)
additional months unless DPRC shall notify Employee in
writing, not less than six (6) months prior to the end of the
initial term or any extension thereof, of DPRC's intention
that the Term not be extended.
2. DUTIES.
2.1 Employee shall serve as the Chief Executive Officer and as
Chairman of the Board of Directors of DPRC during the Term and
shall devote her full-time efforts to such duties and
responsibilities as may be assigned to her from time to time
by, and shall report to, the Board of Directors of DPRC. To
the extent that Employee performs services for or on behalf of
Information Technology Resources, Inc. ("ITR") during the term
of that certain Management Services Agreement between DPRC and
ITR dated as of August 1, 1997, or any extension or renewal
thereof, including but not limited to membership on the Board
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Directors of ITR, then for the purposes of this Agreement,
such services (the "ITR Services") shall (a) be deemed to
comply with the aforementioned duty of Employee to DPRC, (b)
shall not be deemed to violate any of the covenants of
Employee set forth herein, and (c) shall be deemed to be work
for DPRC and not for any other entity.
2.2 During the Term, DPRC agrees that it will not ask or direct
Employee to relocate her main office or operations outside of
Orange County, California.
2.3 Employee shall serve without additional compensation in one or
more offices, as a Director or as a member of any committee of
the Board of Directors of DPRC or of any direct or indirect
subsidiary of DPRC.
3. COMPENSATION.
3.1 As consideration for the performance of her duties and
responsibilities hereunder, Employee shall be entitled to the
compensation set forth on Exhibit "A" attached hereto and
incorporated herein by this reference (the "Compensation").
3.2 Employee understands and acknowledges that, except as
otherwise set forth in this Agreement, the Compensation will
constitute the full and exclusive consideration to be received
by Employee for all services performed by Employee in
connection with DPRC's employment of Employee, and for the
performance of all her promises and obligations under this
Agreement.
3.3 Aside from the Compensation, DPRC may adopt, or continue in
force, benefit plans for the benefit of its employees or
certain of its employees which may include, but not be limited
to, group life insurance, medical insurance, etc. DPRC may
terminate any or all such plans at any time and may choose not
to adopt any additional or replacement plans. Employee's
rights under any benefit plans now in force or later adopted
by DPRC shall be governed solely by the terms of such plans;
provided, however, that in no event shall Employee's rights
under any such benefit plans be less than those of any other
senior executive officer of DPRC.
4. DUTY TO DEVOTE FULL TIME AND AVOID CONFLICT OF INTEREST. During the
Term, Employee shall devote her full-time efforts to her duties as an
employee of DPRC and shall not, directly or indirectly, engage or
participate in any activities which are in conflict with the best
interests of DPRC.
5. COMPLIANCE WITH RULES AND REGULATIONS. During the Term, Employee shall
comply with DPRC's rules, regulations and practices, including but not
limited to those rules concerning vacation and sick leave, as they may
from time to time be adopted or modified, so long as they are uniformly
applied to all employees.
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6. NON-COMPETITION AND NON-SOLICITATION BY EMPLOYEE.
6.1 During the Term, Employee shall not engage in any activity
competitive with or adverse to DPRC's business or welfare,
whether alone, as a partner, or as an officer, director,
employee or shareholder of any other corporation and shall not
otherwise undertake planning for or the organization of any
business activity competitive with DPRC's business or combine
or conspire with other employees or representatives of DPRC
for the purpose of organizing any such competitive business
activity; provided, however, that Employee may own up to one
percent (1%) of the outstanding stock of any publicly traded
corporation.
6.2 It is understood that Employee will gain knowledge and make
contacts with DPRC's customers and clients (sometimes
collectively referred to in this Agreement as the "Clients"
and individually as a "Client") and prospective clients of
DPRC in the course of his employment. In recognition of this
understanding, Employee agrees as follows:
(a) For a period of two (2) years following the
termination of her employment, Employee shall not
interfere or attempt to interfere in any way with any
existing relationships of DPRC with any Client with
whom DPRC has participated in at least one project or
placement within the two (2) years prior to the
termination of her employment, and shall not solicit,
divert or take away or attempt to solicit, divert or
take away any business of DPRC that is either under
contract or in negotiation at the time of the
termination of her employment.
(b) For a period of two (2) years following the
termination of her employment, Employee shall not
interfere or compete in any way with any proposal
efforts of DPRC already in progress (that is, a
proposal sent to or being then currently developed
for a specific Client or potential client of DPRC) at
the time of the termination of her employment.
(c) For a period of two (2) years following the
termination of her employment, Employee shall not
make use, in a manner competitive with the business
of DPRC, of any of her personal relationships or
business contacts developed during her employment or
prior to her employment.
(d) For a period of two (2) years following the
termination of her employment, Employee shall not
induce, solicit or influence or attempt to induce,
solicit or influence any person who is engaged as an
employee or otherwise by DPRC, to terminate his or
her employment or other engagement with DPRC.
7. TRADE SECRETS OF DPRC. Employee acknowledges and understands that
during her employment, she will have access to and will utilize and
review information which constitutes valuable, important and
confidential trade secrets, as that term is interpreted
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under the Uniform Trade Secrets Act (California Civil Code Section 3426
et seq.) and/or confidential and proprietary material and information
of or relating to the business of DPRC necessary for the successful
conduct of DPRC's business. This information includes, but is not
limited to: (a) listings of and data regarding the Clients (past and
current); (b) information regarding potential customers and clients;
(c) data relating to the personnel, supervisory structure and
procedures of the Clients; (d) information regarding specific computer
technician staffing needs of the Clients; (e) information as to the
identity, whereabouts, capabilities and availability of contractors in
DPRC's database; (f) information regarding bidding. billing and pricing
practices; (g) information regarding the nature and type of services
rendered to the Clients; and (h) other methodologies, computer
programs, employee and contractor resumes, employee databases,
processes, compilations of information, results of proposals, job
notes, reports and records (all of which information is sometimes
referred to in this Agreement as the "Secrets"). The foregoing
notwithstanding, Secrets shall not include information or data which is
(i) in the public domain, (ii) generally known in the information
technology staffing services industry, (iii) already known to Employee
as of the date she began her employment with DPRC, or (iv) rightfully
disclosed to Employee outside of the scope of his employment with DPRC
by a third party not under a duty of confidentiality to DPRC. Employee
understands further that the Secrets have been and will be accumulated
by Employee and other personnel at DPRC at considerable expense to DPRC
(including but not limited to compensation paid to DPRC personnel
dealing with the Secrets and the Clients), and that DPRC has and will
continue to expend its resources in order to maintain actively and
vigorously the confidentiality of the Secrets, as such information is
extremely valuable to DPRC, and well worth the expense of enforcement
and preservation of such confidentiality. Accordingly, Employee agrees
as follows:
(a) All of the Secrets shall be safeguarded and treated
as confidential by Employee.
(b) Any and all data, notes, letters, computer programs
and data, reports, telephone records and all other
written documentation relating to the business of
DPRC (including but not limited to the Secrets) that
may be collected, compiled, written, reviewed or
conceived by Employee from or by reason of services
performed by Employee for DPRC shall become the
absolute property of DPRC, and Employee shall not
assert or establish a claim for any statutory or
common law right or any other possessory or
proprietary right with respect to any of the above.
(c) Employee shall hold the Secrets in strictest
confidence and shall not (i) disclose any Secrets to
any person, corporation, firm, or other entity,
either during the Term or thereafter, or (ii) use any
Secrets in Employee's subsequent business or
employment without the prior express written
authorization of DPRC; provided, however, that
Employee may disclose Secrets to the extent required
to do so by a subpoena lawfully issued in a judicial
proceeding or arbitration.
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(d) Employee shall not otherwise commit any act which
shall compromise the confidentiality of any Secrets,
including but not limited to making a copy of such
property (whether electronic, paper or otherwise)
without the prior express written authorization of
DPRC.
8. CONFIDENTIAL INFORMATION OF CLIENTS. All ideas, concepts, information
and written material disclosed to Employee by DPRC, or acquired from
any Client, and all financial, accounting, statistical, personnel, and
business data and plans of the Clients, are and shall remain the sole
and exclusive property and proprietary information of DPRC, or such
Client, as the case may be, and are disclosed in confidence by DPRC or
permitted to be acquired from the Clients in reliance on Employee's
agreement to maintain them in confidence and not to use or disclose
them to any other person except in furtherance of DPRC's business.
9. RETURN OF INFORMATION. At the time of the termination of her
employment, Employee shall deliver promptly to DPRC all notes, books,
electronic data (regardless of storage media), correspondence and other
written or graphical records (including all copies thereof) in
Employee's possession or under Employee's control relating to any
business, work, Clients or any other aspect of DPRC, whether or not
containing any Secrets, including but not limited to each original and
all copies of all or any part thereof.
10. COOPERATION. Both during the Term and thereafter, Employee shall sign
all papers, give evidence and testimony and, at DPRC's expense, perform
all acts which, in DPRC's opinion, are necessary, proper or expedient
to carry out and fulfill the purposes and intents of this Agreement.
11. REMEDIES; INJUNCTIVE RELIEF. Employee acknowledges and agrees that, in
the event of a breach or threatened breach by Employee of any of the
provisions of this Agreement, DPRC shall be entitled to a preliminary
and a permanent injunction in order to prevent or restrain any such
breach by Employee or by Employee's partners, agents, representatives,
servants, employers, employees, and/or any and all persons directly or
indirectly acting for or with Employee, in addition to and not in
limitation of any other rights, remedies, or damages available to DPRC
at law or in equity.
12. TERMINATION OF EMPLOYMENT.
12.1 DPRC may terminate Employee's employment at any time with
"Cause" (as defined below). In the event that DPRC terminates
Employee's employment with Cause, DPRC shall be obligated only
to pay the base salary of the Compensation through the
effective date of such resignation and, except as otherwise
agreed in writing or as otherwise provided by this Agreement,
DPRC shall have no further obligation to Employee under this
Agreement by way of compensation or otherwise. Notwithstanding
the foregoing, to the extent the grounds for any proposed
termination with Cause are capable of being cured or remedied
by Employee, DPRC shall not terminate Employee with Cause
unless the Board of Directors of DPRC has first counseled
Employee as to how she could effect such
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cure or remedy and Employee is given at least thirty (30) days
to do so. A determination of whether Employee has
satisfactorily effected such cure or remedy shall be promptly
made by a majority of the disinterested directors of the Board
of Directors at the end of the period provided to Employee for
such cure or remedy and such determination shall be final.
12.2 DPRC may terminate Employee's employment at any time without
Cause (as defined below) by giving Employee thirty (30) days'
advance written notice of such termination. Employee may
resign for Good Reason (as defined below) by giving DPRC
thirty (30) days' advance written notice of such resignation.
In the event that DPRC terminates Employee without Cause, or
Employee resigns for Good Reason, DPRC shall pay to Employee
the base salary of the Compensation and provide the same
health and life insurance benefits through the effective date
of such termination or resignation and, thereafter, until the
earlier to occur of (i) the expiration of twenty-four (24)
months after the effective date of such termination, (ii) the
date upon which Employee becomes employed on a full-time basis
(including but not limited to self-employment, but only if
Employee holds herself out to the public as being a
self-employed consultant or other businesswoman), or (iii) the
date upon which Employee violates any of Sections 6 through
10, inclusive. In addition, DPRC shall pay Employee, at such
time following completion of the fiscal year-end audit when
all other senior executive bonuses are paid, the pro-rated
Incentive Bonus described in such Exhibit "A" to which
Employee was entitled during her employment (which proration
shall be based on a fraction, the numerator of which is the
number of calendar days during the fiscal year during which
Employee was employed prior to the effective date of such
termination or resignation and the denominator of which is
365).
12.3 Employee may resign without Good Reason at any time by giving
DPRC forty-five (45) days' advance written notice of such
resignation. In the event that Employee resigns without Good
Reason, DPRC shall be obligated only to pay the base salary of
the Compensation through the effective date of such
resignation and, except as otherwise agreed in writing or as
otherwise provided by this Agreement, DPRC shall have no
further obligation to Employee under this Agreement by way of
compensation or otherwise.
12.4 DPRC may terminate Employee's employment at any time if
Employee becomes Disabled (as defined below) by giving
Employee thirty (30) days' advance written notice of such
termination. In the event that DPRC terminates Employee's
because Employee has become Disabled, DPRC shall pay to
Employee the base salary of the Compensation and provide the
same health and life insurance benefits through the effective
date of such termination and, thereafter, until the earlier to
occur of (i) the expiration of twenty-four (24) calendar
months after the effective date of such termination of
employment, (ii) the date upon which Employee becomes employed
on a full-time basis (including but not limited to
self-employment, but only if Employee holds herself out to the
public as being a
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self-employed consultant or other businesswoman), or (iii) the
date upon which Employee violates any of Sections 6 through
10, inclusive. In addition, DPRC shall pay Employee, at such
time following completion of the fiscal year-end audit when
all other senior executive bonuses are paid, the pro-rated
Incentive Bonus described in such Exhibit "A" to which
Employee was entitled during her employment (which proration
shall be based on a fraction, the numerator of which is the
number of calendar days during the fiscal year during which
Employee was employed prior to the effective date of such
termination and the denominator of which is 365).
12.5 Employee's agreements, duties and obligations under Sections 6
through 10, inclusive, shall survive the termination of this
Agreement and shall continue after any termination of
Employee's employment pursuant to Sections 12.1, 12.2, 12.3 or
12.4 of this Agreement.
12.6 This Agreement will terminate immediately upon Employee's
death. In such event, DPRC shall pay to her estate (a) the
base salary of the Compensation through the date of Employee's
death and, thereafter, until the expiration of twenty-four
(24) calendar months after the date of Employee's death, and,
(b) at such time following completion of the fiscal year-end
audit when all other senior executive bonuses are paid, the
pro-rated Incentive Bonus described in such Exhibit "A" to
which Employee was entitled during her employment (which
proration shall be based on a fraction, the numerator of which
is the number of calendar days during the fiscal year during
which Employee was employed prior to Employee's death and the
denominator of which is 365), and DPRC shall have no further
obligation to Employee's estate under this Agreement by way of
compensation or otherwise.
12.7 As used in this Agreement, the following terms shall have the
meanings indicated:
(a) "Cause" shall mean an action or actions by Employee
during her employment (including but not limited to
inactions) which constitute either (i) gross
insubordination, gross negligence, unethical or
criminal behavior constituting a felony under federal
or state law and which involves moral turpitude, or a
breach of fiduciary duty of Employee as an officer
and/or director of DPRC, or (ii) a violation of any
of Sections 4 through 10, inclusive.
(b) "Disabled" shall mean Employee's ability to perform
her duties under this Agreement is impaired, due to
sickness, physical or mental impairment or injury by
more than twenty-five (25%) for a period of six (6)
consecutive months or for nine (9) months in any
consecutive twelve (12) month period. In the event
Employee disputes DPRC's determination that she is
Disabled, Employee shall give written notice of such
dispute to DPRC during the thirty (30) day notice
period prior to the proposed effective date
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of such termination, and Employee and DPRC shall
thereupon each select, within ten (10) days of such
notice from Employee, a physician to evaluate whether
Employee is Disabled.
Such physicians shall complete their evaluation and
report to the Board of Directors within ten (10)
days. If such physicians do not agree as to whether
Employee is Disabled, they shall promptly select a
third physician to further evaluate Employee, whose
conclusion on such matter shall be rendered within
ten (10) days of his or her selection and shall be
final and binding on Employee and DPRC.
(c) "Good Reason" shall mean any of the following:
(i) (A) a demotion or assignment to Employee of
duties inconsistent with her position,
duties, responsibilities or status with
DPRC, (B) a change in Employee's titles or
offices adverse to Employee, or (C) any
removal of Employee from or any failure to
reelect Employee to the office of Chief
Executive Officer of DPRC, except, in any
such case, with Employee's consent or in
connection with the termination of his
employment pursuant to Section 12.1 (with
Cause), 12.3 (resignation without Good
Reason), 12.4 (disability), 12.6 (death) or
retirement; provided, however, that Good
Reason shall not include the assignment to
Employee of any duties or responsibilities
of one or more management positions within
her competence to the extent that any such
position is not filled at any time and it is
necessary to perform the duties and
responsibilities of such position pending
the hiring of a person to hold such
position, and provided that DPRC is actively
seeking to fill such position during the
period of such assignment;
(ii) a purported reduction by DPRC in the
Compensation in effect on the date hereof or
as the same may be increased from time to
time during the term of this Agreement or
any failure by DPRC to reimburse Employee or
provide any material benefits set forth in
Exhibit A;
(iii) any failure by DPRC to continue in effect
any benefit plan or arrangement (including,
without limitation, DPRC's incentive bonus
plan, profit sharing plan, stock option
plans, medical insurance plans, disability
insurance plans, life insurance plans or
vacation pay plans, with such generally
applicable amendments thereto as may be
approved from time to time in good faith by
DPRC's Board of Directors) in which Employee
is participating or other plans providing
Employee with substantially similar benefits
(each, a "Benefit Plan"), or any action by
DPRC which would
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materially and adversely affect Employee's
participation in or materially reduce
Employee's benefits under any Benefit Plan;
(iv) any failure by DPRC to obtain the assumption
of this Agreement by any successor or assign
of DPRC, if such successor or assign asserts
the position that it is not bound by the
provisions hereof, or
(v) any failure by DPRC to comply with any
material provision of this Agreement;
provided, however, that no such action shall be
considered to constitute Good Reason unless and until
Employee has given DPRC written notice of, and thirty
(30) days' opportunity to cure or remedy the specific
action which Employee alleges would constitute Good
Reason if not so cured or remedied and DPRC has
failed to effect such cure or remedy.
12.8 The rights and remedies provided in this Section 12 shall
constitute the exclusive rights and remedies available to
Employee relating to or arising from the termination of his
employment, including claims for breach of contract or in
tort; provided, however, that Employee shall be entitled to
pursue any and all available legal remedies based on any claim
that such termination constituted a violation of applicable
federal or state statutes or regulations.
12.9 No policies or procedures of DPRC or benefits provided by
DPRC, whether oral or written, express or implied, formal or
informal, are intended, nor shall they be construed to limit
the right or ability of DPRC to terminate Employee's
employment or the right or ability of Employee to resign as
set forth above. Except as otherwise agreed in writing or as
otherwise provided by this Agreement, upon termination of
Employee's employment, neither DPRC nor Employee shall have
any further obligation to each other by way of compensation or
otherwise.
12.10 DPRC will require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of
DPRC, by agreement in form and substance reasonably
satisfactory to Employee, expressly, absolutely and
unconditionally to assume and agree to perform this Agreement
in the same manner and to the same extent that DPRC would be
required to perform this Agreement if no such succession or
assignment had taken place. In any such event, the term "DPRC"
as used in this Agreement shall mean any such successor or
assign which executes and delivers the agreement provided for
in the immediately preceding sentence or which otherwise
becomes bound by the terms and provisions of this Agreement by
operation of law.
12.11 Employee shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by
seeking other employment or
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otherwise. Except as expressly provided herein, no payment or
benefit provided for under this Agreement shall be reduced by
any compensation earned by Employee as the result of
employment by another employer after the date of termination
with DPRC. Except as expressly provided herein, the provisions
of this Agreement, and any payment or benefit provided for
hereunder, shall not reduce any amounts otherwise payable, or
in any way diminish Employee's existing rights, or rights
which would accrue solely as a result of the passage of time,
under any DPRC Benefit Plan, employment agreement or other
contract, plan or arrangement.
13. INDEMNIFICATION FOR INCOME TAX DEFICIENCY. In the event that the
deduction for federal income tax purposes is disallowed for any part of
(a) the compensation paid to Employee or to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III,
or (b) any part of the management fee paid to Ballantyne Computer
Service, Inc. ("BCSI"), during DPRC's fiscal years ending in 1992,
1993, 1994 or 1995 (the "Relevant Years") and DPRC is thereby required
to pay an income tax deficiency, then Employee agrees to pay to DPRC
(i) the income tax deficiency payable by DPRC with respect to
compensation paid to Employee during the Relevant Years, and (ii)
$200,000 of the income tax deficiency payable by DPRC with respect to
compensation paid by DPRC to BCSI during the Relevant Years. Employee
agrees that any payment due DPRC from Employee pursuant to this
Paragraph 13 shall first be paid by reducing Employee's base salary and
incentive bonus payable under this Agreement, and Employee shall, not
later than one year after DPRC's payment of such income tax
deficiencies, pay DPRC any then unpaid portion of her obligation under
this Paragraph 13. As used herein, the term "income tax deficiency" is
intended by DPRC and Employee to include any and all interest which
shall have accrued and shall be payable with respect to any such
deficiency assessed against DPRC.
14. MISCELLANEOUS PROVISIONS.
14.1 In the event that any of the provisions of this Agreement
shall be held to be invalid or unenforceable, then all other
provisions shall nevertheless continue to be valid and
enforceable as though the invalid or unenforceable parts had
not been included in this Agreement. In the event that any
provision relating to the time period of any restriction
imposed by this Agreement shall be declared by a court of
competent jurisdiction to exceed the maximum time period which
such court deems reasonable and enforceable, then the time
period of restriction deemed reasonable and enforceable by the
court shall become and shall thereafter be the maximum time
period. In the event that any of the provisions of this
Agreement shall be determined to cause a disallowance of any
"pooling of interests" accounting treatment for any merger,
acquisition or consolidation of DPRC with another entity, such
provisions shall be deemed to be deleted and of no force and
effect and all other provisions shall nevertheless continue to
be valid and enforceable and read as though the deleted
provisions had not been included in this Agreement.
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14.2 This Agreement shall be binding upon the heirs, executors,
administrators, and successors-in-interest of the parties
hereto.
14.3 This Agreement shall be construed and enforced according to
the laws of the State of California, excluding its choice of
law rules.
14.4 This Agreement supersedes all previous correspondence,
promises, representations, and agreements, if any, either
written or oral, between DPRC and Employee. No provision of
this Agreement may be modified except by a writing signed by
Employee and by the President of DPRC (or by such other person
as may be expressly authorized to sign such writing by the
Board of Directors of DPRC).
14.5 All notices, demands, requests, consents, approvals or other
communications (collectively "Notices") required or permitted
to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served
or deposited in the United States mail, registered or
certified, return receipt requested, postage prepaid,
addressed (i) in the case of notices to DPRC, to the President
of DPRC at DPRC's headquarters office at such time, and (ii)
in the case of notices to Employee, to Employee's home address
as set forth on the employment records of DPRC, or to such
other address as such party shall have specified most recently
by written notice. Notices shall be deemed given on the date
of service if personally served. Notices mailed as provided
herein shall be deemed given on the third business day
following the date so mailed.
14.6 Should any party institute any action or proceeding to enforce
this Agreement or any provision hereof, or for damages by
reason of any alleged breach of this Agreement or of any
provision hereof, or for a declaration of rights hereunder,
the prevailing party in any such action or proceeding shall be
entitled to receive from the other party all costs and
expenses, including reasonable attorneys', accountants' and
experts' fees, incurred by the prevailing party in connection
with such action or proceeding.
15. ACKNOWLEDGMENT BY EMPLOYEE. Employee (i) has carefully read and
considered the provisions of this Agreement, (ii) has had an
opportunity to review the terms of this Agreement with legal counsel of
her choosing, (iii) fully understands the extent and impact of the
terms and provisions of this Agreement, and (iv) has executed this
Agreement voluntarily.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
DATA PROCESSING EMPLOYEE
RESOURCES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
President
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EXHIBIT A
COMPENSATION OF ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
The following summarizes the compensation to which Employee shall be
entitled under the foregoing terms of this Employment Agreement.
1. BASE SALARY: Employee's base salary shall be $300,000 per
year, paid in at least bi-weekly installments.
Employee's base annual salary shall be reviewed
and adjusted no less frequently than once per
year. In no event, and under no circumstances,
shall Employee's annual salary be reduced below
the most recent annual salary.
2. VACATION: During the Term, Employee shall be entitled to
six (6) weeks of paid vacation time per
calendar year (plus such other time as may be
permitted by the Board); provided, however,
that any such vacation time, if not used, will
be subject to DPRC's limitations on carrying
forward unused vacation time, pursuant to which
Employee's accrued vacation time may not exceed
ten (10) weeks at any time; and, provided
further, that Employee shall use her best
efforts to coordinate with the Board of
Directors of DPRC the dates upon which she uses
his vacation so as to minimize the negative
impact upon DPRC occasioned by Employee's
absence. Employee shall not be entitled to take
in excess of four (4) weeks vacation at any one
time, except by the written consent of at least
one non-employee member of the Board of
Directors of DPRC, or upon request of DPRC in
connection with Employee's leave of absence for
family, medical or other reasons, as permitted
by law.
3. OTHER BENEFITS: During the Term, Employee shall be entitled to
participate in and receive benefits under all
profit-sharing plans, pension plans, group
medical plans and other benefit plans for the
payment of additional compensation or benefits
to employees of DPRC that DPRC maintains for
senior executive employees. In the event
Employee is terminated without Cause or due to
Disability, or resigns for Good Reason,
Employee shall be entitled to continuation of
health and life insurance coverage for the
period of time set forth in Paragraphs 12.2 and
12.4 of this Agreement (the "DPRC Insurance
Coverage Period"). During the DPRC
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Insurance Coverage Period, DPRC shall pay the
employer portion of the cost of such coverage
at the same levels offered to its senior
executive employees, and Employee shall pay the
employee portion of the cost of such coverage
at the same level paid by its senior executive
employees. Unless Employee was terminated for
Cause, DPRC shall continue, following the DPRC
Insurance Coverage Period, to offer group
medical and life insurance at the same rates
and levels of coverage as are offered to its
then-current senior executive employees, until
such time as Employee reaches age 65 (the
"Employee Insurance Coverage Period."). During
the Employee Insurance Coverage Period, if
Employee accepts insurance coverage from DPRC,
Employee shall pay the full cost of the
premiums for such coverage. During either the
DPRC Insurance Coverage Period or the Employee
Insurance Coverage Period, Employee shall have
the option of choosing Preferred Provider
Organization, Exclusive Provider Organization,
Health Maintenance Organization or such other
types of plans or coverages as are available to
DPRC's then-current senior executive employees.
4. AUTOMOBILE ALLOWANCE: DPRC to pay Employee's automobile lease monthly
payments of not more than $1,500, as well as
all gasoline, insurance premiums, registration
fees and repair and maintenance costs of such
automobile. During the Term, Employee shall be
permitted twice to exchange her leased vehicle
for a new one of equal or comparable value to
that of the then currently leased vehicle to be
replaced, similarly equipped.
5. BUSINESS EXPENDITURES: Employee may be authorized to incur reasonable
expenses for promoting and conducting the
business of DPRC, including but not limited to
expenditures for entertainment and travel, in
such amounts and at such times as shall be
determined and approved by DPRC. DPRC shall
reimburse Employee monthly for all such
approved business expenses upon presentation of
reasonable documentation establishing the
amount, date, place and essential character of
the expenditures.
6. INCENTIVE BONUS: Employee's incentive bonus for each fiscal year
shall provide for a maximum bonus of up to 200%
of his base salary for such year and shall be
subject to such terms and conditions as shall
be determined in good faith by the
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Board of Directors, with the recommendation of
and in consultation with the Compensation
Committee of the Board of Directors. The
incentive bonus may be based on financially
oriented components or upon Employee's
individual accomplishments or both. At the
request of Employee, within ten (10) business
days after the commencement of each fiscal
quarter, DPRC shall advance to Employee up to
one-eighteenth (1/18th) of the maximum bonus
payable by DPRC to Employee hereunder. The
incentive bonus earned for a fiscal year of
DPRC (less the aggregate amount of all advances
made by DPRC to Employee with respect to such
fiscal year) shall be paid not later than
thirty (30) calendar clays following the review
and approval by the Board of Directors of DPRC
of the final financial statement results of the
audit for said fiscal year by DPRC's
independent auditors. In the event that the
aggregate amount of advances made by DPRC to
Employee hereunder during any fiscal year
exceeds the amount of the incentive bonus
earned by Employee for such fiscal year,
Employee, within thirty (30) calendar days of
the determination of such amount, shall pay
such excess to DPRC. The current incentive
bonus plan is based on DPRC reaching its
internal target levels of budgeted operating
income for the fiscal year, as it may be
amended as a result of acquisitions for the
year included (the "Target OI"). A total of 50%
of Employee's base salary shall be paid if the
Target OI is achieved by DPRC. For each 5%
above Target OI achieved by DPRC, Employee
shall receive an additional 10% of base salary
up to the maximum 200% of base salary.
7. INDEMNIFICATION: DPRC shall enter into a directors and officers
Indemnification Agreement with Employee
pursuant to which DPRC will he required to
indemnify Employee against personal liability
for acts of DPRC to the maximum extent
permitted by law.
8. STOCK OPTIONS: With respect to all future stock option grants
by DPRC to Employee, such stock options shall
vest in full following a "change of control"
during the Term. For purposes of such stock
option grants, the term "change of control"
shall mean (i) any merger or consolidation
where DPRC is not the continuing or surviving
corporation or pursuant to which all or
substantially all of the shares of DPRC's
Common Stock are converted into cash, other
property or
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securities of another corporation, other than,
in either case, a merger or consolidation in
which the shares of DPRC's Common Stock
outstanding immediately prior to such merger or
consolidation represent or are converted into
securities representing more than 50% of the
voting power of the surviving corporation in
such merger or consolidation or the parent of
such corporation, (ii) any sale, lease,
exchange or other transfer (in one transaction
or a series of related transactions) of all, or
substantially all, of the assets of DPRC, (iii)
the approval by the shareholders of DPRC of any
plan or proposal for the liquidation or
dissolution of DPRC, (iv) any "person" (as such
term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) shall become the
beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of 35% or more of
DPRC's outstanding Common Stock after the date
hereof, or (v) there shall be any change of
control of a nature which would be required to
be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated
under the Exchange Act or any successor
regulation of substantially similar import,
regardless of whether DPRC is subject to such
reporting requirement at such time.
In addition, in the event Employee is
terminated without Cause, as defined in
Paragraph 12.7 of this Agreement, the members
of the Board of Directors who are not directly
involved in terminating Employee shall consider
accelerating vesting of any unvested options
held by Employee based upon all of the facts
and circumstances surrounding the termination,
including Employee's performance and tenure
with DPRC; provided, however, that the
disinterested Directors involved in such
determination shall be under no obligation to
accelerate vesting of options and shall
specifically not do so if such acceleration
would cause a disallowance of "pooling of
interests" accounting in any DPRC merger
transactions.
9. ESTATE PLANNING: DPRC will reimburse Employee for all reasonable
attorney's fees, in an amount not to exceed
$5,000 per calendar year, incurred in
connection with creating, reviewing and/or
revising Employee's will and estate plan.
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AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to the Employment Agreement (the "AMENDMENT") is made as
of June 23, 1999, to be effective as of the Closing Date (as defined below) by
and between Compuware Corporation, a Michigan corporation (the "COMPANY"), Data
Processing Resources Corporation, a California corporation ("DPRC"), and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ (the "EMPLOYEE").
WHEREAS, DPRC and Employee are parties to that certain Employment
Agreement dated as of May 4, 1999 (the "EMPLOYMENT AGREEMENT").
WHEREAS, DPRC and Employee desire to amend the Employment Agreement in
connection with the transactions contemplated by that certain Agreement and Plan
of Merger dated as of the same date as this Amendment among Compuware
Corporation, Comp Acquisition Co. and Data Processing Resources Corporation (the
"MERGER AGREEMENT").
WHEREAS, Employee's employment with DPRC pursuant to the terms of this
Amendment shall serve as a material inducement for the Company to execute the
Merger Agreement and consummation of the transactions contemplated thereby.
WHEREAS, this Amendment shall be effective as of the Closing Date, as
such term is defined in the Merger Agreement.
NOW, THEREFORE, in consideration for the promises and obligations set
forth in this Amendment, the Company, DPRC and Employee agree to amend the
Employment Agreement in the manner as set forth below:
1. Delete and replace Section 1.2 of the Employment Agreement in its
entirety as follows:
This Agreement, as amended, effective as of the Closing Date as
defined in the Agreement and Plan of Merger dated as of June 23,
1999 among Compuware Corporation, Comp Acquisition Co. and Data
Processing Resources Corporation (the "Merger Agreement")
("Effective Date") shall, unless sooner terminated pursuant to
the terms set forth below, terminate on the third anniversary of
the Effective Date. The period during which Employee is employed
hereunder is referred to as the "Term."
2. Delete and replace Section 2.1 of the Employment Agreement in its
entirety as follows:
Employee shall serve in a position with the Company equivalent
to a senior manager of the Company as may be determined by the
Chief Executive Officer of Compuware Corporation, the parent
company of DPRC (the "Company"), or his designee, during the
Term and shall devote the Employee's full-time efforts to such
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duties and responsibilities as may be assigned to the Employee
from time to time by, and shall report to such Chief Executive
Officer, or his designee.
3. Delete and replace the first sentence of Section 12.2 of the Employment
Agreement in its entirety as follows:
It is understood by Employee that Employee shall be considered
to be an employee "at will" and DPRC may terminate Employee's
employment at any time without Cause (as defined below) by
giving Employee thirty (30) days' advance written notice of such
termination.
4. Insert subsection (vi) in Section 12.7(c) of the Employment Agreement as
follows:
(vi) Notwithstanding the foregoing provisions of Section 12.7(c) of
the Agreement or any other provisions of the Agreement to the
contrary, the Employee agrees that (A) if Employee is appointed
by DPRC or the Company to a position equivalent to a senior
management position of the Company following the Effective Date
pursuant to Section 2.1 of the Agreement and any amendment
thereto, it shall not constitute "Good Reason" for termination
under the provisions of the Employment Agreement and any
amendment thereto and (B) any change in Employee's duties,
responsibilities or reporting responsibility from those in
effect prior to the Effective Date, will not be deemed to
constitute "Good Reason" under the Agreement and any amendment
thereto; provided that Employee shall not be required to report
to any person who reported to Employee prior to the Effective
Date.
5. Delete and replace Section 6 of the Exhibit A, as attached to the
Employment Agreement, in its entirety as follows:
Subject to the determinations of the Compensation Committee of
the Company, Employee shall be eligible to participate in the
Company's executive bonus plan which is generally provided to
other executives in similar employment position as the Employee
and with comparable experience and similar responsibilities with
the Company as the Employee.
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6. Delete and replace the third sentence of Section 8 of the Exhibit A, as
attached to the Employment Agreement, in its entirety and insert a new
fourth sentence prior to the current fourth sentence as follows:
Such stock option shall be in the form generally approved for
grants to officers of DPRC; provided, however, that such stock
option, granted prior to the Closing Date (as defined in the
Merger Agreement) shall vest in full on the Closing Date (as
defined in the Merger Agreement). Notwithstanding any provisions
of this Agreement, as amended, to the contrary, any stock
options granted by the Company or DPRC on or after the Closing
Date, as defined in the Merger Agreement, shall be subject to
the terms and conditions of the stock option plan from which
such stock options were granted and in accordance with the
agreement evidencing such stock option grant.
7. To protect the interest of DPRC and the Company, Employee will agree to
sign the Company's standard confidentiality and inventions agreements
that are executed by other employees of the Company as a condition of
employment with the Company.
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IN WITNESS WHEREOF, the Employee has carefully read and considered the
provisions of this Amendment and agrees that all of the above-stated amendments
are fair and reasonable. The Employee indicates his acceptance of this Amendment
by signing and returning the enclosed copy of the Amendment where indicated
below.
COMPUWARE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Date: June 23, 1999
-------------------------------
DATA PROCESSING RESOURCES
CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Date: June 23, 1999
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Date: June 23, 1999
-------------------------------
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DATA PROCESSING RESOURCES CORPORATION
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of May
4, 1999, by and between DATA PROCESSING RESOURCES CORPORATION, a California
corporation ("DPRC"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Employee").
1. EMPLOYMENT AND TERM.
1.1 DPRC agrees to employ Employee, and Employee agrees to be
employed by DPRC, on the terms and conditions described below.
1.2 The Agreement shall be effective as of May 4, 1999 or such
other date as Employee may commence his employment with DPRC
with the consent of DRPC (the "Effective Date") and shall,
unless sooner terminated pursuant to the terms set forth
below, terminate on the third anniversary of the Effective
Date. The period during which Employee is employed hereunder
is referred to as the "Term." The Term shall be automatically
extended for a period of twelve (12) additional months unless
DPRC shall notify Employee in writing, not less than six (6)
months prior to the end of the initial term or any extension
thereof, of DPRC's intention that the Term not be extended.
2. DUTIES.
2.1 Employee shall serve as the President and Chief Operating
Officer of DPRC during the Term and shall devote his full-time
efforts to such duties and responsibilities as may be assigned
to him from time to time by, and shall report to, the Chief
Executive Officer of DPRC.
2.2 Employee shall serve without additional compensation in one or
more offices, as a Director or as a member of any committee of
the Board of Directors of DPRC or of any direct or indirect
subsidiary of DPRC.
3. COMPENSATION.
3.1 As consideration for the performance of his duties and
responsibilities hereunder, Employee shall be entitled to the
compensation set forth on Exhibit "A" attached hereto and
incorporated herein by this reference (the "Compensation").
3.2 Employee understands and acknowledges that, except as
otherwise set forth in this Agreement, the Compensation will
constitute the full and exclusive consideration to be received
by Employee for all services performed by Employee in
connection with DPRC's employment of Employee, and for the
performance of all his promises and obligations under this
Agreement.
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3.3 Aside from the Compensation, DPRC may adopt, or continue in
force, benefit plans for the benefit of its employees or
certain of its employees which may include, but not be limited
to, group life insurance, medical insurance, etc. DPRC may
terminate any or all such plans at any time and may choose not
to adopt any additional or replacement plans. Employee's
rights under any benefit plans now in force or later adopted
by DPRC shall be governed solely by the terms of such plans;
provided, however, that in no event shall Employee's rights
under any such benefit plans be less than those of any other
senior executive officer of DPRC.
4. DUTY TO DEVOTE FULL TIME AND AVOID CONFLICT OF INTEREST. During the
Term, Employee shall devote his full-time efforts to his duties as an
employee of DPRC and shall not, directly or indirectly, engage or
participate in any activities which are in conflict with the best
interests of DPRC.
5. COMPLIANCE WITH RULES AND REGULATIONS. During the Term, Employee shall
comply with DPRC's rules, regulations and practices, including but not
limited to those rules concerning vacation and sick leave, as they may
from time to time be adopted or modified, so long as they are uniformly
applied to all employees.
6. NON-COMPETITION AND NON-SOLICITATION BY EMPLOYEE.
6.1 During the Term, Employee shall not engage in any activity
competitive with or adverse to DPRC's business or welfare,
whether alone, as a partner, or as an officer, director,
employee or shareholder of any other corporation and shall not
otherwise undertake planning for or the organization of any
business activity competitive with DPRC's business or combine
or conspire with other employees or representatives of DPRC
for the purpose of organizing any such competitive business
activity; provided, however, that Employee may own up to one
percent (1 %) of the outstanding stock of any publicly traded
corporation.
6.2 It is understood that Employee will gain knowledge and make
contacts with DPRC's customers and clients (sometimes
collectively referred to in this Agreement as the "Clients"
and individually as a "Client") and prospective clients of
DPRC in the course of his employment. In recognition of this
understanding, Employee agrees as follows:
(a) For a period of two (2) years following the
termination of his employment, Employee shall not
interfere or attempt to interfere in any way with any
existing relationships of DPRC with any Client with
whom DPRC has participated in at least one project or
placement within the two (2) years prior to the
termination of his employment, and shall not solicit,
divert or take away or attempt to solicit, divert or
take away any business of DPRC that is either under
contract or in negotiation at the time of the
termination of his employment.
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(b) For a period of two (2) years following the
termination of his employment, Employee shall not
interfere or compete in any way with any proposal
efforts of DPRC already in progress (that is, a
proposal sent to or being then currently developed
for a specific Client or potential client of DPRC) at
the time of the termination of his employment.
(c) For a period of two (2) years following the
termination of his employment, Employee shall not
make use, in a manner competitive with the business
of DPRC, of any of his personal relationships or
business contacts developed during his employment or
prior to his employment.
(d) For a period of two (2) years following the
termination of his employment, Employee shall not
induce, solicit or influence or attempt to induce,
solicit or influence any person who is engaged as an
employee or otherwise by DPRC, to terminate his or
his employment or other engagement with DPRC.
7. TRADE SECRETS OF DPRC. Employee acknowledges and understands that
during his employment, he will have access to and will utilize and
review information which constitutes valuable, important and
confidential trade secrets, as that term is interpreted under the
Uniform Trade Secrets Act (California Civil Code Section 3426 et seq.)
and/or confidential and proprietary material and information of or
relating to the business of DPRC necessary for the successful conduct
of DPRC's business. This information includes, but is not limited to:
(a) listings of and data regarding the Clients (past and current); (b)
information regarding potential customers and clients; (c) data
relating to the personnel, supervisory structure and procedures of the
Clients; (d) information regarding specific computer technician
staffing needs of the Clients; (e) information as to the identity,
whereabouts, capabilities and availability of contractors in DPRC's
database; (f) information regarding bidding, billing and pricing
practices; (g) information regarding the nature and type of services
rendered to the Clients; and (h) other methodologies, computer
programs, employee and contractor resumes, employee databases,
processes, compilations of information, results of proposals, job
notes, reports and records (all of which information is sometimes
referred to in this Agreement as the "Secrets"). The foregoing
notwithstanding, Secrets shall not include information or data which is
(i) in the public domain, (ii) generally known in the information
technology staffing services industry, (iii) already known to Employee
as of the date he began his employment with DPRC, or (iv) rightfully
disclosed to Employee outside of the scope of his employment with DPRC
by a third party not under a duty of confidentiality to DPRC. Employee
understands further that the Secrets have been and will be accumulated
by Employee and other personnel at DPRC at considerable expense to DPRC
(including but not limited to compensation paid to DPRC personnel
dealing with the Secrets and the Clients), and that DPRC has and will
continue to expend its resources in order to maintain actively and
vigorously the confidentiality of the Secrets, as such information is
extremely valuable to DPRC, and well worth the expense of enforcement
and preservation of such confidentiality. Accordingly, Employee agrees
as follows:
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(a) All of the Secrets shall be safeguarded and treated
as confidential by Employee.
(b) Any and all data, notes, letters, computer programs
and data, reports, telephone records and all other
written documentation relating to the business of
DPRC (including but not limited to the Secrets) that
may be collected, compiled, written, reviewed or
conceived by Employee from or by reason of services
performed by Employee for DPRC shall become the
absolute property of DPRC, and Employee shall not
assert or establish a claim for any statutory or
common law right or any other possessory or
proprietary right with respect to any of the above.
(c) Employee shall hold the Secrets in strictest
confidence and shall not (i) disclose any Secrets to
any person, corporation, firm, or other entity,
either during the Term or thereafter, or (ii) use any
Secrets in Employee's subsequent business or
employment without the prior express written
authorization of DPRC; provided, however, that
Employee may disclose Secrets to the extent required
to do so by a subpoena lawfully issued in a judicial
proceeding or arbitration.
(d) Employee shall not otherwise commit any act which
shall compromise the confidentiality of any Secrets,
including but not limited to making a copy of such
property (whether electronic, paper or otherwise)
without the prior express written authorization of
DPRC.
8. CONFIDENTIAL INFORMATION OF CLIENTS. All ideas, concepts, information
and written material disclosed to Employee by DPRC, or acquired from
any Client, and all financial, accounting, statistical, personnel, and
business data and plans of the Clients, are and shall remain the sole
and exclusive property and proprietary information of DPRC, or such
Client, as the case may be, and are disclosed in confidence by DPRC or
permitted to be acquired from the Clients in reliance on Employee's
agreement to maintain them in confidence and not to use or disclose
them to any other person except in furtherance of DPRC's business.
9. RETURN OF INFORMATION. At the time of the termination of his
employment, Employee shall deliver promptly to DPRC all notes, books,
electronic data (regardless of storage media), correspondence and other
written or graphical records (including all copies thereof) in
Employee's possession or under Employee's control relating to any
business. work, Clients or any other aspect of DPRC, whether or not
containing any Secrets, including but not limited to each original and
all copies of all or any part thereof.
10. COOPERATION. Both during the Term and thereafter, Employee shall sign
all papers, give evidence and testimony and, at DPRC's expense, perform
all acts which, in DPRC's opinion, are necessary, proper or expedient
to carry out and fulfill the purposes and intents of this Agreement.
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11. REMEDIES; INJUNCTIVE RELIEF. Employee acknowledges and agrees that, in
the event of a breach or threatened breach by Employee of any of the
provisions of this Agreement, DPRC shall be entitled to a preliminary
and a permanent injunction in order to prevent or restrain any such
breach by Employee or by Employee's partners, agents, representatives,
servants, employers, employees, and/or any and all persons directly or
indirectly acting for or with Employee, in addition to and not in
limitation of any other rights, remedies, or damages available to DPRC
at law or in equity.
12. TERMINATION OF EMPLOYMENT.
12.1 DPRC may terminate Employee's employment at any time with
"Cause" (as defined below). In the event that DPRC terminates
Employee's employment with Cause, DPRC shall be obligated only
to pay the base salary of the Compensation through the
effective date of such resignation and, except as otherwise
agreed in writing or as otherwise provided by this Agreement,
DPRC shall have no further obligation to Employee under this
Agreement by way of compensation or otherwise. Notwithstanding
the foregoing, to the extent the grounds for any proposed
termination with Cause are capable of being cured or remedied
by Employee, DPRC shall not terminate Employee with Cause
unless the Chief Executive Officer of DPRC has first counseled
Employee as to how he could effect such cure or remedy and
Employee is given at least thirty (30) days to do so. A
determination of whether Employee has satisfactorily effected
such cure or remedy shall be promptly made by a majority of
the disinterested directors of the Board of Directors at the
end of the period provided to Employee for such cure or remedy
and such determination shall be final.
12.2 DPRC may terminate Employee's employment at any time without
Cause (as defined below) by giving Employee thirty (30) days'
advance written notice of such termination. Employee may
resign for Good Reason (as defined below) by giving DPRC
thirty (30) days' advance written notice of such resignation.
In the event that DPRC terminates Employee without Cause, or
Employee resigns for Good Reason, DPRC shall pay to Employee
the base salary of the Compensation and provide the same
health and life insurance benefits through the effective date
of such termination or resignation and, thereafter, until the
earlier to occur of (i) the expiration of twelve (12) months
after the effective date of such termination, (ii) the date
upon which Employee becomes employed on a full-time basis
(including but not limited to self-employment, but only if
Employee holds himself out to the public as being a
self-employed consultant or other businessman), or (iii) the
date upon which Employee violates any of Sections 6 through
10, inclusive. In addition, DPRC shall pay Employee, at such
time following completion of the fiscal year-end audit when
all other senior executive bonuses are paid, the pro-rated
Incentive Bonus described in such Exhibit "A" to which
Employee was entitled during his employment (which proration
shall be based on a fraction, the numerator of which is the
number of calendar days during the fiscal year during which
Employee was employed prior to the effective date of
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such termination or resignation and the denominator of which
is 365). If DPRC's medical and/or life insurance plans do not
allow Employee's continued participation in such plan or plans
during the period described above, then DPRC shall pay to
Employee, in monthly installments, from the date on which
Employee's participation in such medical and/or life
insurance, as applicable, is prohibited for the remainder of
the time period described in the third sentence of this
Section 12.2, the monthly premium or premiums which had been
payable by DPRC with respect to Employee for such discontinued
medical and/or life insurance, as applicable.
12.3 Employee may resign without Good Reason at any time by giving
DPRC forty-five (45) days' advance written notice of such
resignation. In the event that Employee resigns without Good
Reason, DPRC shall be obligated only to pay the base salary of
the Compensation through the effective date of such
resignation and, except as otherwise agreed in writing or as
otherwise provided by this Agreement, DPRC shall have no
further obligation to Employee under this Agreement by way of
compensation or otherwise.
12.4 DPRC may terminate Employee's employment at any time if
Employee becomes Disabled (as defined below) by giving
Employee thirty (30) days' advance written notice of such
termination. In the event that DPRC terminates Employee's
because Employee has become Disabled, DPRC shall pay to
Employee the base salary of the Compensation and provide the
same health and life insurance benefits through the effective
date of such termination and, thereafter, until the earlier to
occur of (i) the expiration of twelve (12) calendar months
after the effective date of such termination of employment,
(ii) the date upon which Employee becomes employed on a
full-time basis (including but not limited to self-employment,
but only if Employee holds himself out to the public as being
a self-employed consultant or other businessman), or (iii) the
date upon which Employee violates any of Sections 6 through
10, inclusive. In addition, DPRC shall pay Employee, at such
time following completion of the fiscal year-end audit when
all other senior executive bonuses are paid, the pro-rated
Incentive Bonus described in such Exhibit "A" to which
Employee was entitled during his employment (which proration
shall be based on a fraction, the numerator of which is the
number of calendar days during the fiscal year during which
Employee was employed prior to the effective date of such
termination and the denominator of which is 365). If DPRC's
medical and/or life insurance plans do not allow Employee's
continued participation in such plan or plans during the
period described above, then DPRC shall pay to Employee, in
monthly installments, from the date on which Employee's
participation in such medical and/or life insurance, as
applicable, is prohibited for the remainder of the time period
described in the second sentence of this Section 12.4, the
monthly premium or premiums which had been payable by DPRC
with respect to Employee for such discontinued medical and/or
life insurance, as applicable.
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12.5 Employee's agreements, duties and obligations under Sections 6
through 10, inclusive, shall survive the termination of this
Agreement and shall continue after any termination of
Employee's employment pursuant to Sections 12.1, 12.2, 12.3 or
12.4 of this Agreement.
12.6 This Agreement will terminate immediately upon Employee's
death. In such event, DPRC shall pay to his estate (a) the
base salary of the Compensation through the date of Employee's
death and, thereafter, until the expiration of twelve (12)
calendar months after the date of Employee's death, and, (b)
at such time following completion of the fiscal year-end audit
when all other senior executive bonuses are paid, the
pro-rated Incentive Bonus described in such Exhibit "A" to
which Employee was entitled during his employment (which
proration shall be based on a fraction, the numerator of which
is the number of calendar days during the fiscal year during
which Employee was employed prior to Employee's death and the
denominator of which is 365), and DPRC shall have no further
obligation to Employee's estate under this Agreement by way of
compensation or otherwise.
12.7 As used in this Agreement. the following terms shall have the
meanings indicated:
(a) "Cause" shall mean an action or actions by Employee
during his employment (including but not limited to
inactions) which constitute either (i) gross
insubordination, gross negligence, unethical or
criminal behavior constituting a felony under federal
or state law and which involves moral turpitude, or a
breach of fiduciary duty of Employee as an officer
and/or director of DPRC, or (ii) a violation of any
of Sections 4 through 10, inclusive.
(b) "Disabled" shall mean Employee's ability to perform
his duties under this Agreement is impaired, due to
sickness, physical or mental impairment or injury, by
more than twenty-five (25%) for a period of six (6)
consecutive months or for nine (9) months in any
consecutive twelve (12) month period. In the event
Employee disputes DPRC's determination that he is
Disabled, Employee shall give written notice of such
dispute to DPRC during the thirty (30) day notice
period prior to the proposed effective date of such
termination, and Employee and DPRC shall thereupon
each select, within ten (10) days of such notice from
Employee, a physician to evaluate whether Employee is
Disabled. Such physicians shall complete their
evaluation and report to the Board of Directors
within ten (10) days. If such physicians do not agree
as to whether Employee is Disabled, they shall
promptly select a third physician to further evaluate
Employee, whose conclusion on such matter shall be
rendered within ten (10) days of his or her selection
and shall be final and binding on Employee and DPRC.
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(c) "Good Reason" shall mean any of the following:
(i) (A) a demotion or assignment to Employee of
duties inconsistent with his position,
duties, responsibilities or status with
DPRC, (B) a change in Employee's titles or
offices adverse to Employee, or (C) any
removal of Employee from or any failure to
reelect Employee to the office of President
and Chief Operating Officer of DPRC, except,
in any such case, with Employee's consent or
in connection with the termination of his
employment pursuant to Section 12.1 (with
Cause), 12.3 (resignation without Good
Reason), 12.4 (disability), 12.6 (death) or
retirement; provided, however, that Good
Reason shall not include the assignment to
Employee of any duties or responsibilities
of one or more management positions within
his competence to the extent that any such
position is not filled at any time and it is
necessary to perform the duties and
responsibilities of such position pending
the hiring of a person to hold such
position, and provided that DPRC is actively
seeking to fill such position during the
period of such assignment;
(ii) a purported reduction by DPRC in the
Compensation in effect on the date hereof or
as the same may be increased from time to
time during the term of this Agreement or
any failure by DPRC to reimburse Employee or
provide any material benefits set forth in
Exhibit A;
(iii) any failure by DPRC to continue in effect
any benefit plan or arrangement (including,
without limitation, DPRC's incentive bonus
plan, profit sharing plan, stock option
plans, medical insurance plans, disability
insurance plans, life insurance plans or
vacation pay plans, with such generally
applicable amendments thereto as may be
approved from time to time in good faith by
DPRC's Board of Directors) in which Employee
is participating or other plans providing
Employee with substantially similar benefits
(each, a "Benefit Plan"), or any action by
DPRC which would materially and adversely
affect Employee's participation in or
materially reduce Employee's benefits under
any Benefit Plan;
(iv) any failure by DPRC to obtain the assumption
of this Agreement by any successor or assign
of DPRC, if such successor or assign asserts
the position that it is not bound by the
provisions hereof; or
(v) any failure by DPRC to comply with any
material provision of this Agreement;
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provided, however, that no such action shall
be considered to constitute Good Reason
unless and until Employee has given DPRC
written notice of, and thirty (30) days'
opportunity to cure or remedy the specific
action which Employee alleges would
constitute Good Reason if not so cured or
remedied and DPRC has failed to effect such
cure or remedy.
12.8 The rights and remedies provided in this Section 12 shall
constitute the exclusive rights and remedies available to
Employee relating to or arising from the termination of his
employment, including claims for breach of contract or in
tort; provided, however, that Employee shall be entitled to
pursue any and all available legal remedies based on any claim
that such termination constituted a violation of applicable
federal or state statutes or regulations.
12.9 No policies or procedures of DPRC or benefits provided by
DPRC, whether oral or written, express or implied, formal or
informal, are intended, nor shall they be construed to limit
the right or ability of DPRC to terminate Employee's
employment or the right or ability of Employee to resign as
set forth above. Except as otherwise agreed in writing or as
otherwise provided by this Agreement, upon termination of
Employee's employment, neither DPRC nor Employee shall have
any further obligation to each other by way of compensation or
otherwise.
12.10 DPRC will require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of
DPRC, by agreement in form and substance reasonably
satisfactory to Employee, expressly, absolutely and
unconditionally to assume and agree to perform this Agreement
in the same manner and to the same extent that DPRC would be
required to perform this Agreement if no such succession or
assignment had taken place. In any such event, the term "DPRC"
as used in this Agreement shall mean any such successor or
assign which executes and delivers the agreement provided for
in the immediately preceding sentence or which otherwise
becomes bound by the terms and provisions of this Agreement by
operation of law.
12.11 Employee shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by
seeking other employment or otherwise. Except as expressly
provided herein, no payment or benefit provided for under this
Agreement shall be reduced by any compensation earned by
Employee as the result of employment by another employer after
the date of termination with DPRC. Except as expressly
provided herein, the provisions of this Agreement, and any
payment or benefit provided for hereunder, shall not reduce
any amounts otherwise payable, or in any way diminish
Employee's existing rights, or rights which would accrue
solely as a result of the passage of time, under any DPRC
Benefit Plan, employment agreement or other contract, plan or
arrangement.
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13. MISCELLANEOUS PROVISIONS.
13.1 In the event that any of the provisions of this Agreement
shall be held to be invalid or unenforceable, then all other
provisions shall nevertheless continue to be valid and
enforceable as though the invalid or unenforceable parts had
not been included in this Agreement. In the event that any
provision relating to the time period of any restriction
imposed by this Agreement shall be declared by a court of
competent jurisdiction to exceed the maximum time period which
such court deems reasonable and enforceable, then the time
period of restriction deemed reasonable and enforceable by the
court shall become and shall thereafter be the maximum time
period.
13.2 This Agreement shall be binding upon the heirs, executors,
administrators, and successors-in-interest of the parties
hereto.
13.3 This Agreement shall be construed and enforced according to
the laws of the State of California, excluding its choice of
law rules.
13.4 This Agreement supersedes all previous correspondence,
promises, representations, and agreements, if any, either
written or oral, between DPRC and Employee. No provision of
this Agreement may be modified except by a writing signed by
Employee and by the Chief Executive Officer of DPRC (or by
such other person as may be expressly authorized to sign such
writing by the Board of Directors of DPRC).
13.5 All notices, demands, requests, consents, approvals or other
communications (collectively "Notices") required or permitted
to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served
or deposited in the United States mail, registered or
certified, return receipt requested, postage prepaid,
addressed (i) in the case of notices to DPRC, to the Chief
Executive Officer of DPRC at DPRC's headquarters office at
such time, and (ii) in the case of notices to Employee, to
Employee's home address as set forth on the employment records
of DPRC, or to such other address as such party shall have
specified most recently by written notice. Notices shall be
deemed given on the date of service if personally served.
Notices mailed as provided herein shall be deemed given on the
third business day following the date so mailed.
13.6 Should any party institute any action or proceeding to enforce
this Agreement or any provision hereof, or for damages by
reason of any alleged breach of this Agreement or of any
provision hereof, or for a declaration of rights hereunder,
the prevailing party in any such action or proceeding shall be
entitled to receive from the other party all costs and
expenses, including reasonable attorneys', accountants' and
experts' fees, incurred by the prevailing party in connection
with such action or proceeding.
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14. ACKNOWLEDGMENT BY EMPLOYEE. Employee (i) has carefully read and
considered the provisions of this Agreement, (ii) has had an
opportunity to review the terms of this Agreement with legal counsel of
his choosing, (iii) fully understands the extent and impact of the
terms and provisions of this Agreement, and (iv) has executed this
Agreement voluntarily.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
DATA PROCESSING EMPLOYEE
RESOURCES CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
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EXHIBIT A
COMPENSATION OF ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The following summarizes the compensation to which Employee shall be
entitled under the foregoing terms of this Employment Agreement.
1. BASE SALARY Employee's base salary shall be $315,000 per
year, paid in at least bi-weekly installments.
Employee's base annual salary shall be reviewed
and adjusted no less frequently than once per
year. In no event, and under no circumstances,
shall Employee's annual salary be reduced below
the most recent annual salary.
2. VACATION During the Term, Employee shall be entitled to
four (4) weeks of paid vacation time per
calendar year (plus such other time as may be
permitted by the Board); provided, however, that
any such vacation time, if not used, will be
subject to DPRC's limitations on carrying
forward unused vacation time, pursuant to which
Employee's accrued vacation time may not exceed
six (6) weeks at any time; and, provided
further, that Employee shall use his best
efforts to coordinate with the Chief Executive
Officer of DPRC the dates upon which he uses his
vacation so as to minimize the negative impact
upon DPRC occasioned by Employee's absence.
Employee shall not be entitled to take in excess
of four (4) weeks vacation at any one time,
except by the written consent of the Chief
Executive Officer of DPRC, or upon request of
DPRC in connection with Employee's leave of
absence for family, medical or other reasons, as
permitted by law.
3. OTHER BENEFITS: Employee shall be entitled to participate in and
receive benefits under all profit-sharing plans,
pension plans, group medical plans and other
benefit plans for the payment of additional
compensation or benefits to employees of DPRC
which DPRC at any time maintains for executive
employees.
4. AUTOMOBILE ALLOWANCE: Employee shall be entitled to an automobile
allowance of $900 per month.
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5. BUSINESS EXPENDITURES: Employee may be authorized to incur reasonable
expenses for promoting and conducting the
business of DPRC, including but not limited to
expenditures for entertainment and travel, in
such amounts and at such times as shall be
determined and approved by the Chief Executive
Officer of DPRC. DPRC shall reimburse Employee
monthly for all such approved business expenses
upon presentation of reasonable documentation
establishing the amount, date, place and
essential character of the expenditures.
6. INCENTIVE BONUS: Employee's incentive bonus for each fiscal year
shall provide for a maximum bonus of up to 200%
of his base salary for such year and shall be
subject to such terms and conditions as shall be
determined in good faith by the Board of
Directors, with the recommendation of and in
consultation with the Compensation Committee of
the Board of Directors. The incentive bonus may
be based on financially oriented components or
upon Employee's individual accomplishments or
both. At the request of Employee, within ten
(10) business days after the commencement of
each fiscal quarter, DPRC shall advance to
Employee up to one-eighteenth (1/18th) of the
maximum bonus payable by DPRC to Employee
hereunder. The incentive bonus earned for a
fiscal year of DPRC (less the aggregate amount
of all advances made by DPRC to Employee with
respect to such fiscal year) shall be paid not
later than thirty (30) calendar days following
the review and approval by the Board of
Directors of DPRC of the final financial
statement results of the audit for said fiscal
year by DPRC's independent auditors. In the
event that the aggregate amount of advances made
by DPRC to Employee hereunder during any fiscal
year exceeds the amount of the incentive bonus
earned by Employee for such fiscal year,
Employee, within thirty (30) calendar days of
the determination of such amount, shall pay such
excess to DPRC. The current incentive bonus plan
is based on DPRC reaching its internal target
levels of budgeted operating income for the
fiscal year, as it may be amended as a result of
acquisitions for the year included (the "Target
OI"). A total of 50% of Employee's base salary
shall be paid if the Target OI is achieved by
DPRC. For each 5% above Target OI achieved by
DPRC, Employee shall receive an additional 10%
of base salary up to the maximum 200% of base
salary.
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7. INDEMNIFICATION: DPRC shall enter into a directors and officers
Indemnification Agreement with Employee pursuant
to which DPRC will be required to indemnify
Employee against personal liability for acts of
DPRC to the maximum extent permitted by law.
8. STOCK OPTIONS: Subject to the commencement of employment, the
Board of Directors has approved the grant to
Employee of a stock option under the Company's
1994 Stock Option Plan to purchase up to 320,000
shares of Common Stock. The exercise price of
such stock option shall be equal to the fair
market value of the Common Stock on the
Effective Date and the option shall vest (i.e.,
become exercisable) in four equal annual
installments, commencing on the first
anniversary of the Effective Date. Such stock
option shall be in the form generally approved
for grants to officers of DPRC; provided,
however, that such stock option and all future
stock option grants to Employee shall vest in
full following a "change of control" during the
Term. For the purposes of such stock option
grants, the term "change of control" shall mean
(i) any merger or consolidation where DPRC is
not the continuing or surviving corporation or
pursuant to which all or substantially all of
the shares of DPRC's Common Stock are converted
into cash, other property or securities of
another corporation, other than, in either case,
a merger or consolidation in which the shares of
DPRC's Common Stock outstanding immediately
prior to such merger or consolidation represent
or are converted into securities representing
more than 50% of the voting power of the
surviving corporation in such merger or
consolidation or the parent of such corporation,
(ii) any sale, lease, exchange or other transfer
(in one transaction or a series of related
transactions) of all, or substantially all, of
the assets of DPRC, (iii) the approval by the
shareholders of DPRC of any plan or proposal for
the liquidation or dissolution of DPRC, (iv) any
"person" (as such term is used in Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) shall
become the beneficial owner (within the meaning
of Rule 13d-3 under the Exchange Act) of 35% or
more of DPRC's outstanding Common Stock after
the date hereof, or (v) there shall be any
change of control of a nature which would be
required to be reported in response to Item 6(e)
of Schedule 14A of
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Regulation 14A promulgated under the Exchange
Act or any successor regulation of substantially
similar import, regardless of whether DPRC is
subject to such reporting requirement at such
time.
In addition, in the event Employee is terminated
without Cause, as defined in Paragraph 12.7 of
this Agreement, the members of the Board of
Directors who are not directly involved in
terminating Employee shall consider accelerating
vesting of any unvested options held by Employee
based upon all of the facts and circumstances
surrounding the termination, including
Employee's performance and tenure with DPRC;
provided, however, that the disinterested
Directors involved in such determination shall
be under no obligation to accelerate vesting of
options and shall specifically not do so if such
acceleration would cause a disallowance of
"pooling of interests" accounting in any DPRC
merger transactions.
9. RELOCATION EXPENSES: In connection with Employee's relocation of his
and his families' personal residence in Atlanta,
Georgia, DPRC shall reimburse Employee for all
of his reasonable and customary expenses with
respect to such relocation, including, without
limitation, the following: (a) all non-recurring
closing costs on the sale of Employee's current
personal residence; (b) all closing costs on the
purchase of Employee's new personal residence in
Southern California, except that points on such
purchase shall not exceed two (2) points; (c)
all reasonable and customary travel related
expenses for Employee and his spouse to find a
replacement residence in Southern California;
(d) all reasonable and customary interim storage
expenses for personal property if Employee
decides to construct a home in Southern
California; and (e) all reasonable and customary
expenses for interim living expenses in Southern
California and related travel expenses until the
earlier of the completion of Employee's
relocation of his family or the first 90 days
during the Term, which 90-day period may be
extended for an additional 60-day period with
the consent of DPRC, which consent shall not be
unreasonably withheld. To the extent that
Employee shall incur any personal federal or
state tax income liability in connection with
DPRC's reimbursement of any of the foregoing to
Employee, DPRC, within thirty (30) calendar days
after Employee's submission to DPRC of his
personal
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federal and state tax returns demonstrating such
income tax liabilities, shall pay Employee an
amount equal to one and two-thirds (1.67) times
Employee's actual personal tax liability.
10. ESTATE PLANNING: During calendar year 1999, DPRC shall reimburse
Employee for all reasonable attorney's fees (not
to exceed three percent (3%) of the amount of
Employee's then base salary) incurred by
Employee in connection with reviewing and
revising Employee's will and estate plan to
reflect any necessary or desirable changes
resulting from Employee's relocation to Southern
California.
Following calendar year 1999, DPRC will
reimburse Employee for all reasonable attorney's
fees, in an amount not to exceed $5,000 per
calendar year, incurred in connection with
creating, reviewing and/or revising Employee's
will and estate plan.
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AMENDMENT TO THE AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amendment to the Amended and Restated Employment Agreement (the
"AMENDMENT") is made as of June 23, 1999, to be effective as of the Closing Date
(as defined below) by and between Compuware Corporation, a Michigan corporation
(the "COMPANY"), Data Processing Resources Corporation, a California corporation
("DPRC"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "EMPLOYEE").
WHEREAS, DPRC and Employee are parties to that certain Amended and
Restated Employment Agreement dated as of May 4, 1999 (the "EMPLOYMENT
AGREEMENT").
WHEREAS, DPRC and Employee desire to amend the Employment Agreement in
connection with the transactions contemplated by that certain Agreement and Plan
of Merger dated as of the same date as this Amendment among Compuware
Corporation, Comp Acquisition Co. and Data Processing Resources Corporation (the
"MERGER AGREEMENT").
WHEREAS, Employee's employment with DPRC pursuant to the terms of this
Amendment shall serve as a material inducement for the Company to execute the
Merger Agreement and consummation of the transactions contemplated thereby.
WHEREAS, this Amendment shall be effective as of the Closing Date, as
such term is defined in the Merger Agreement.
NOW, THEREFORE, in consideration for the promises and obligations set
forth in this Amendment, the Company, DPRC and Employee agree to amend the
Employment Agreement in the manner as set forth below:
1. Delete and replace Section 1.2 of the Employment Agreement in its
entirety as follows:
This Agreement, as amended, effective as of the Closing Date as
defined in the Agreement and Plan of Merger dated as of June 23,
1999 among Compuware Corporation, Comp Acquisition Co. and Data
Processing Resources Corporation (the "Merger Agreement")
("Effective Date") shall, unless sooner terminated pursuant to
the terms set forth below, terminate after ninety (90) days from
the Effective Date. The period during which Employee is employed
hereunder is referred to as the "Term." The Term shall be
automatically extended for a period of ninety (90) additional
days with the mutual consent of the Company and Employee prior
to or on the last day of the initial ninety (90) day term of
this Agreement, and during such extended ninety (90) day term
the Employee shall be subject to the same terms and conditions
of this Agreement and any amendment thereto.
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2. Delete and replace Section 2.1 of the Employment Agreement in its
entirety as follows:
Employee shall serve in a position with the Company equivalent
to a senior manager of the Company as may be determined by the
Chief Executive Officer of Compuware Corporation, the parent
company of DPRC (the "Company"), or his designee, during the
Term and shall devote the Employee's full-time efforts to such
duties and responsibilities as may be assigned to the Employee
from time to time by, and shall report to such Chief Executive
Officer, or his designee.
3. Delete Section 6.1 of the Employment Agreement in its entirety.
4. Delete and replace the first sentence of Section 12.2 of the Employment
Agreement in its entirety as follows:
It is understood by Employee that Employee shall be considered
to be an employee "at will" and DPRC may terminate Employee's
employment at any time without Cause (as defined below) by
giving Employee thirty (30) days' advance written notice of such
termination.
5. Insert subsection (vi) in Section 12.7(c) of the Employment Agreement as
follows:
(vi) Notwithstanding the foregoing provisions of Section
12.7(c) of the Agreement or any other provisions of the
Agreement to the contrary, the Company and Employee
agree that (A) if Employee is appointed by DPRC or the
Company to a position equivalent to a senior management
position of the Company following the Effective Date
pursuant to Section 2.1 of the Agreement and any
amendment thereto, it shall not constitute "Good Reason"
for termination under the provisions of the Employment
Agreement and any amendment thereto, (B) any change in
Employee's duties, responsibilities or reporting
responsibility from those in effect prior to the
Effective Date, will not be deemed to constitute "Good
Reason" under the Agreement and any amendment thereto;
provided that Employee shall not be required to report
to any person who reported to Employee prior to the
Effective Date and (c) that if Employee remains employed
through the Term, as such Term may be extended pursuant
to Section 1.2, Employee's subsequent termination of
employment for any
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44
reason shall be considered to be "Good Reason" for
Employee's termination and Employee shall receive the
benefits Employee would have received pursuant to
Section 12.2 if Employee's employment had terminated on
the day preceding the last day of the Term, as such Term
may have been extended pursuant to Section 1.2.
6. Insert the following sentences at the end of Section 3 of the Exhibit A,
as attached to the Employment Agreement as follows:
Notwithstanding any provision in the Agreement, the Company will
provide medical and life insurance benefits required by the
Agreement only if such benefits can be provided pursuant to any
existing insurance plan or policy (including self insurance
programs). If any such benefit cannot be so provided, the
Company will make reasonably comparable benefits available to
Employee (including conversion benefits) at a cost not
substantially higher than the cost of providing such benefits to
an employee of the Company.
7. Delete and replace Section 6 of the Exhibit A, as attached to the
Employment Agreement, in its entirety as follows:
Subject to the determinations of the Compensation Committee of
the Company, Employee shall be eligible to participate in the
Company's executive bonus plan which is generally provided to
other executives in similar employment position as the Employee
and with comparable experience and similar responsibilities with
the Company as the Employee.
8. Delete and replace the second sentence of Section 8 of the Exhibit A, as
attached to the Employment Agreement, in its entirety as follows:
On the Closing Date (as defined in the Merger Agreement) any and
all stock options granted prior to the Closing Date (as defined
in the Merger Agreement) to Employee by DPRC shall, whether or
not Employee is terminated on such Closing Date, become
immediately vested and exercisable for a period not to exceed
the lesser of (a) two (2) years, or (b) the date on which such
stock options would otherwise have terminated (other than by
reason of the termination of the Employment).
9. Insert the following provision at the end of the first paragraph in
Section 8 of the Exhibit A, as attached to the Employment Agreement:
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45
Notwithstanding any of the above provisions to the contrary,
stock options granted by the Company or DPRC on or after the
Closing Date, as defined in the Merger Agreement, shall be
subject to the terms and conditions of the stock option plan
from which such stock options were granted and in accordance
with the agreement evidencing such stock option grant.
10. To protect the interest of DPRC and the Company, Employee will agree to
sign the Company's standard confidentiality and inventions agreements
that are executed by other employees of the Company as a condition of
employment with the Company.
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46
IN WITNESS WHEREOF, the Employee has carefully read and considered the
provisions of this Amendment and agrees that all of the above-stated amendments
are fair and reasonable. The Employee indicates his acceptance of this Amendment
by signing and returning the enclosed copy of the Amendment where indicated
below.
COMPUWARE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Date: June 23, 1999
-------------------------------
DATA PROCESSING RESOURCES
CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Date: June 23, 1999
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Date: June 23, 1999
-------------------------------
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47
DATA PROCESSING RESOURCES CORPORATION
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of May
4, 1999, by and between DATA PROCESSING RESOURCES CORPORATION, a California
corporation ("DPRC"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Employee"), with reference to the
following:
A. DPRC and Employee are parties to that certain Employment Agreement
dated August 1, 1995, as amended pursuant to that letter of understanding dated
September 20, 1996 and that certain Addendum to Employment Agreement dated
September 2, 1997 (the "Prior Employment Agreement").
B. DPRC and Employee now wish to amend and restate the Prior Employment
Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration for the promises and obligations set
forth below, DPRC and Employee agree as follows:
1. EMPLOYMENT AND TERM.
1.1 DPRC agrees to continue to employ Employee, and Employee agrees
to continue to be employed by DPRC, on the terms and conditions
described below.
1.2 The Prior Employment Agreement commenced on August 1, 1995 for a
term of three (3) years. This Agreement shall be effective as of
May 4, 1999 (the "Effective Date") and shall, unless sooner
terminated pursuant to the terms set forth below, terminate on
the third anniversary of the Effective Date. The period during
which Employee is employed by DPRC hereunder is referred to as
the "Term." The Term shall be automatically extended for a period
of twelve (12) additional months unless DPRC shall notify
Employee in writing, not less than six (6) months prior to the
end of the initial term or any extension thereof, of DPRC's
intention that the Term not be extended.
2. DUTIES.
2.1 Employee shall serve as the Executive Vice President and as a
Director of DPRC during the Term and shall devote his full-time
efforts to such duties and responsibilities as may be assigned to
him from time to time by, and shall report to, the Chairman and
Chief Executive Officer of DPRC. Such duties shall include
strategic planning, mergers and acquisitions and integration
related activities.
48
2.2 Employee shall serve without additional compensation in one or
more offices, as a member of any committee of the Board of
Directors of DPRC or of any direct or indirect subsidiary of
DPRC.
2.3 DPRC agrees that (i) Employee shall be permitted to work on a
full-time basis from his home office or a DPRC office situated in
or around the San ▇▇▇▇▇▇▇▇ Valley area of Los Angeles County,
(ii) DPRC will not ask Employee to relocate his home office or
his residence from Camarillo, California, and (iii) that DPRC
will reimburse Employee for, or pay directly, reasonable costs in
connection with Employee's lodging, for not more than three (3)
nights per work week, in the immediate vicinity of the offices of
DPRC's corporate headquarters in the event that Employee chooses
at his option to work at DPRC's corporate offices instead of his
home office or another DPRC office in the San ▇▇▇▇▇▇▇▇ Valley
area.
3. COMPENSATION.
3.1 As consideration for the performance of his duties and
responsibilities hereunder, Employee shall be entitled to the
compensation set forth on Exhibit "A" attached hereto and
incorporated herein by this reference (the "Compensation").
3.2 Employee understands and acknowledges that, except as otherwise
set forth in this Agreement, the Compensation will constitute the
full and exclusive consideration to be received by Employee for
all services performed by Employee in connection with DPRC's
employment of Employee, and for the performance of all his
promises and obligations under this Agreement.
3.3 Aside from the Compensation, DPRC may adopt, or continue in
force, benefit plans for the benefit of its employees or certain
of its employees which may include, but not be limited to, group
life insurance, medical insurance, etc. DPRC may terminate any or
all such plans at any time and may choose not to adopt any
additional or replacement plans. Employee's rights under any
benefit plans now in force or later adopted by DPRC shall be
governed solely by the terms of such plans; provided, however,
that in no event shall Employee's rights under any such benefit
plans be less than those of any other senior executive officer of
DPRC.
4. DUTY TO DEVOTE FULL TIME AND AVOID CONFLICT OF INTEREST. During the
Term, Employee shall devote his full-time efforts to his duties as an
employee of DPRC and shall not, directly or indirectly, engage or
participate in any activities which are in conflict with the best
interests of DPRC.
5. COMPLIANCE WITH RULES AND REGULATIONS. During the Term, Employee shall
comply with DPRC's rules, regulations and practices, including but not
limited to those rules concerning vacation and sick leave, as they may
from time to time be adopted or modified, so long as they are uniformly
applied to all employees.
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49
6. NON-COMPETITION AND NON-SOLICITATION BY EMPLOYEE.
6.1 During the Term, Employee shall not engage in any activity
competitive with or adverse to DPRC's business or welfare,
whether alone, as a partner, or as an officer, director, employee
or shareholder of any other corporation and shall not otherwise
undertake planning for or the organization of any business
activity competitive with DPRC's business or combine or conspire
with other employees or representatives of DPRC for the purpose
of organizing any such competitive business activity; provided,
however, that Employee may own up to one percent (1%) of the
outstanding stock of any publicly traded corporation.
6.2 It is understood that Employee will gain knowledge and make
contacts with DPRC's customers and clients (sometimes
collectively referred to in this Agreement as the "Clients" and
individually as a "Client") and prospective clients of DPRC in
the course of his employment. In recognition of this
understanding, Employee agrees as follows:
(a) For a period of two (2) years following the termination
of his employment, Employee shall not interfere or
attempt to interfere in any way with any existing
relationships of DPRC with any Client with whom DPRC has
participated in at least one project or placement within
the two (2) years prior to the termination of his
employment, and shall not solicit, divert or take away
or attempt to solicit, divert or take away any business
of DPRC that is either under contract or in negotiation
at the time of the termination of his employment.
(b) For a period of two (2) years following the termination of
his employment, Employee shall not interfere or compete in
any way with any proposal efforts of DPRC already in
progress (that is, a proposal sent to or being then
currently developed for a specific Client or potential
client of DPRC) at the time of the termination of his
employment.
(c) For a period of two (2) years following the termination of
his employment, Employee shall not make use, in a manner
competitive with the business of DPRC, of any of his
personal relationships or business contacts developed
during his employment or prior to his employment.
(d) For a period of two (2) years following the termination of
his employment, Employee shall not induce, solicit or
influence or attempt to induce, solicit or influence any
person who is engaged as an employee or otherwise by DPRC,
to terminate his or her employment or other engagement
with DPRC.
7. TRADE SECRETS OF DPRC. Employee acknowledges and understands that during
his employment, he will have access to and will utilize and review
information which constitutes valuable, important and confidential trade
secrets, as that term is interpreted
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50
under the Uniform Trade Secrets Act (California Civil Code Section 3426 et
seq.) and/or confidential and proprietary material and information of or
relating to the business of DPRC necessary for the successful conduct of
DPRC's business. This information includes, but is not limited to: (a)
listings of and data regarding the Clients (past and current); (b)
information regarding potential customers and clients; (c) data relating to
the personnel, supervisory structure and procedures of the Clients; (d)
information regarding specific computer technician staffing needs of the
Clients; (e) information as to the identity, whereabouts, capabilities and
availability of contractors in DPRC's database; (f) information regarding
bidding, billing and pricing practices; (g) information regarding the
nature and type of services rendered to the Clients; and (h) other
methodologies, computer programs, employee and contractor resumes, employee
databases, processes, compilations of information, results of proposals,
job notes, reports and records (all of which information is sometimes
referred to in this Agreement as the "Secrets"). The foregoing
notwithstanding, Secrets shall not include information or data which is (i)
in the public domain, (ii) generally known in the information technology
staffing services industry, (iii) already known to Employee as of the date
he began his employment with DPRC, or (iv) rightfully disclosed to Employee
outside of the scope of his employment with DPRC by a third party not under
a duty of confidentiality to DPRC. Employee understands further that the
Secrets have been and will be accumulated by Employee and other personnel
at DPRC at considerable expense to DPRC (including but not limited to
compensation paid to DPRC personnel dealing with the Secrets and the
Clients), and that DPRC has and will continue to expend its resources in
order to maintain actively and vigorously the confidentiality of the
Secrets, as such information is extremely valuable to DPRC, and well worth
the expense of enforcement and preservation of such confidentiality.
Accordingly, Employee agrees as follows:
(a) All of the Secrets shall be safeguarded and treated as confidential by
Employee.
(b) Any and all data, notes, letters, computer programs and data, reports,
telephone records and all other written documentation relating to the
business of DPRC (including but not limited to the Secrets) that may
be collected, compiled, written, reviewed or conceived by Employee
from or by reason of services performed by Employee for DPRC shall
become the absolute property of DPRC, and Employee shall not assert or
establish a claim for any statutory or common law right or any other
possessory or proprietary right with respect to any of the above.
(c) Employee shall hold the Secrets in strictest confidence and shall not
(i) disclose any Secrets to any person, corporation, firm, or other
entity, either during the Term or thereafter, or (ii) use any Secrets
in Employee's subsequent business or employment without the prior
express written authorization of DPRC; provided, however, that
Employee may disclose Secrets to the extent required to do so by a
subpoena lawfully issued in a judicial proceeding or arbitration.
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51
(d) Employee shall not otherwise commit any act which shall compromise the
confidentiality of any Secrets, including but not limited to making a
copy of such property (whether electronic, paper or otherwise) without
the prior express written authorization of DPRC.
8. CONFIDENTIAL INFORMATION OF CLIENTS. All ideas, concepts, information and
written material disclosed to Employee by DPRC, or acquired from any Client, and
all financial, accounting, statistical, personnel, and business data and plans
of the Clients, are and shall remain the sole and exclusive property and
proprietary information of DPRC, or such Client, as the case may be, and are
disclosed in confidence by DPRC or permitted to be acquired from the Clients in
reliance on Employee's agreement to maintain them in confidence and not to use
or disclose them to any other person except in furtherance of DPRC's business.
9. RETURN OF INFORMATION. At the time of the termination of his employment,
Employee shall deliver promptly to DPRC all notes, books, electronic data
(regardless of storage media), correspondence and other written or graphical
records (including all copies thereof) in Employee's possession or under
Employee's control relating to any business, work, Clients or any other aspect
of DPRC, whether or not containing any Secrets, including but not limited to
each original and all copies of all or any part thereof.
10. COOPERATION. Both during the Term and thereafter, Employee shall sign all
papers, give evidence and testimony and, at DPRC's expense, perform all acts
which, in DPRC's opinion, are necessary, proper or expedient to carry out and
fulfill the purposes and intents of this Agreement.
11. REMEDIES INJUNCTIVE RELIEF. Employee acknowledges and agrees that, in the
event of a breach or threatened breach by Employee of any of the provisions of
this Agreement, DPRC shall be entitled to a preliminary and a permanent
injunction in order to prevent or restrain any such breach by Employee or by
Employee's partners, agents, representatives, servants, employers, employees,
and/or any and all persons directly or indirectly acting for or with Employee,
in addition to and not in limitation of any other rights, remedies, or damages
available to DPRC at law or in equity.
12. TERMINATION OF EMPLOYMENT.
12.1 DPRC may terminate Employee's employment at any time with "Cause" (as
defined below). In the event that DPRC terminates Employee's
employment with Cause, DPRC shall be obligated only to pay the base
salary of the Compensation through the effective date of such
resignation and, except as otherwise agreed in writing or as otherwise
provided by this Agreement, DPRC shall have no further obligation to
Employee under this Agreement by way of compensation or otherwise.
Notwithstanding the foregoing, to the extent the grounds for any
proposed termination with Cause are capable of being cured or remedied
by Employee, DPRC shall not terminate Employee with Cause unless the
Chief Executive Officer of DPRC has first counseled Employee as to how
he could effect such cure or remedy and Employee is given at least
thirty (30) days to do so. A determination of whether Employee has
satisfactorily effected such cure
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or remedy shall be promptly made by a majority of the disinterested
directors of the Board of Directors at the end of the period provided
to Employee for such cure or remedy and such determination shall be
final.
12.2 DPRC may terminate Employee's employment at any time without Cause (as
defined below) by giving Employee thirty (30) days' advance written
notice of such termination. Employee may resign for Good Reason (as
defined below) by giving DPRC thirty (30) days' advance written notice
of such resignation. In the event that DPRC terminates Employee
without Cause, or Employee resigns for Good Reason, DPRC shall pay to
Employee the base salary of the Compensation and provide the same
health and life insurance benefits through the effective date of such
termination or resignation and, thereafter, until the earlier to occur
of (i) the expiration of eighteen (18) months after the effective date
of such termination, (ii) the date upon which Employee becomes
employed on a full-time basis (including but not limited to
self-employment, but only if Employee holds himself out to the public
as being a self-employed consultant or other businessman), or (iii)
the date upon which Employee violates any of Sections 6 through 10,
inclusive. In addition, DPRC shall pay Employee, at such time
following completion of the fiscal year-end audit when all other
senior executive bonuses are paid, the pro-rated Incentive Bonus
described in such Exhibit "A" to which Employee was entitled during
his employment (which proration shall be based on a fraction, the
numerator of which is the number of calendar days during the fiscal
year during which Employee was employed prior to the effective date of
such termination or resignation and the denominator of which is 365).
12.3 Employee may resign without Good Reason at any time by giving DPRC
forty-five (45) days' advance written notice of such resignation. In
the event that Employee resigns without Good Reason, DPRC shall be
obligated only to pay the base salary of the Compensation through the
effective date of such resignation and, except as otherwise agreed in
writing or as otherwise provided by this Agreement, DPRC shall have no
further obligation to Employee under this Agreement by way of
compensation or otherwise.
12.4 DPRC may terminate Employee's employment at any time if Employee
becomes Disabled (as defined below) by giving Employee thirty (30)
days' advance written notice of such termination. In the event that
DPRC terminates Employee's because Employee has become Disabled, DPRC
shall pay to Employee the base salary of the Compensation and provide
the same health and life insurance benefits through the effective date
of such termination and, thereafter, until the earlier to occur of (i)
the expiration of eighteen (18) calendar months after the effective
date of such termination of employment, (ii) the date upon which
Employee becomes employed on a full-time basis (including but not
limited to self-employment, but only if Employee holds himself out to
the public as being a self-employed consultant or other businessman),
or (iii) the date upon which Employee violates any of Sections 6
through 10, inclusive. In addition, DPRC
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shall pay Employee, at such time following completion of the fiscal
year-end audit when all other senior executive bonuses are paid, the
pro-rated Incentive Bonus described in such Exhibit "A" to which
Employee was entitled during his employment (which proration shall be
based on a fraction, the numerator of which is the number of calendar
days during the fiscal year during which Employee was employed prior
to the effective date of such termination and the denominator of which
is 365).
12.5 Employee's agreements, duties and obligations under Sections 6 through
10, inclusive, shall survive the termination of this Agreement and
shall continue after any termination of Employee's employment pursuant
to Sections 12.1, 12.2, 12.3 or 12.4 of this Agreement.
12.6 This Agreement will terminate immediately upon Employee's death. In
such event, DPRC shall pay to his estate (a) the base salary of the
Compensation through the date of Employee's death and, thereafter,
until the expiration of eighteen (18) calendar months after the date
of Employee's death, and, (b) at such time following completion of the
fiscal year-end audit when all other senior executive bonuses are
paid, the pro-rated Incentive Bonus described in such Exhibit "A" to
which Employee was entitled during his employment (which proration
shall be based on a fraction, the numerator of which is the number of
calendar days during the fiscal year during which Employee was
employed prior to Employee's death and the denominator of which is
365), and DPRC shall have no further obligation to Employee's estate
under this Agreement by way of compensation or otherwise.
12.7 As used in this Agreement, the following terms shall have the meanings
indicated:
(a) "Cause" shall mean an action or actions by Employee during his
employment (including but not limited to inactions) which
constitute either (i) gross insubordination, gross negligence,
unethical or criminal behavior constituting a felony under
federal or state law and which involves moral turpitude, or a
breach of fiduciary duty of Employee as an officer and/or
director of DPRC, or (ii) a violation of any of Sections 4
through 10, inclusive.
(b) "Disabled" shall mean Employee's ability to perform his duties
under this Agreement is impaired, due to sickness, physical or
mental impairment or injury, by more than twenty-five (25%) for a
period of six (6) consecutive months or for nine (9) months in
any consecutive twelve (12) month period. In the event Employee
disputes DPRC's determination that he is Disabled, Employee shall
give written notice of such dispute to DPRC during the thirty
(30) day notice period prior to the proposed effective date of
such termination, and Employee and DPRC shall thereupon each
select, within ten (10) days of such notice from Employee, a
physician to evaluate
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whether Employee is Disabled. Such physicians shall complete their
evaluation and report to the Board of Directors within ten (10) days.
If such physicians do not agree as to whether Employee is Disabled,
they shall promptly select a third physician to further evaluate
Employee, whose conclusion on such matter shall be rendered within ten
(10) days of his or her selection and shall be final and binding on
Employee and DPRC.
(c) "Good Reason" shall mean any of the following:
(i) (A) a demotion or assignment to Employee of duties
inconsistent with his position, duties, responsibilities or
status with DPRC, (B) a change in Employee's titles adverse
to Employee, or (C) any removal of Employee from or any
failure to reelect Employee to the office of Executive Vice
President of DPRC, except, in any such case, with
Employee's consent or in connection with the termination of
his employment pursuant to Section 12.1 (with Cause), 12.3
(resignation without Good Reason), 12.4 (disability), 12.6
(death) or retirement; provided, however, that Good Reason
shall not include the assignment to Employee of any duties
or responsibilities of one or more management positions
within his competence to the extent that any such position
is not filled at any time and it is necessary to perform
the duties and responsibilities of such position pending
the hiring of a person to hold such position, and provided
that DPRC is actively seeking to fill such position during
the period of such assignment;
(ii) a purported reduction by DPRC in the Compensation in effect
on the date hereof or as the same may be increased from
time to time during the term of this Agreement or any
failure by DPRC to reimburse Employee or provide any
material benefits set forth in Exhibit A;
(iii) any failure by DPRC to continue in effect any benefit plan
or arrangement (including, without limitation, DPRC's
incentive bonus plan, profit sharing plan, stock option
plans, medical insurance plans, disability insurance plans,
life insurance plans or vacation pay plans, with such
generally applicable amendments thereto as may be approved
from time to time in good faith by DPRC's Board of
Directors) in which Employee is participating or other
plans providing Employee with substantially similar
benefits (each, a "Benefit Plan"), or any action by DPRC
which would materially and adversely affect Employee's
participation in or materially reduce Employee's benefits
under any Benefit Plan;
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(iv) any failure by DPRC to obtain the assumption of this
Agreement by any successor or assign of DPRC, if such
successor or assign asserts the position that it is not
bound by the provisions hereof; or
(v) any failure by DPRC to comply with any material provision
of this Agreement;
provided, however, that no such action shall be considered to
constitute Good Reason unless and until Employee has given DPRC
written notice of, and thirty (30) days' opportunity to cure or
remedy the specific action which Employee alleges would constitute
Good Reason if not so cured or remedied and DPRC has failed to
effect such cure or remedy.
12.8 The rights and remedies provided in this Section 12 shall constitute the
exclusive rights and remedies available to Employee relating to or
arising from the termination of his employment, including claims for
breach of contract or in tort; provided, however, that Employee shall be
entitled to pursue any and all available legal remedies based on any
claim that such termination constituted a violation of applicable federal
or state statutes or regulations.
12.9 No policies or procedures of DPRC or benefits provided by DPRC, whether
oral or written, express or implied, formal or informal, are intended,
nor shall they be construed to limit the right or ability of DPRC to
terminate Employee's employment or the right or ability of Employee to
resign as set forth above. Except as otherwise agreed in writing or as
otherwise provided by this Agreement, upon termination of Employee's
employment, neither DPRC nor Employee shall have any further obligation
to each other by way of compensation or otherwise.
12.10 DPRC will require any successor or assign (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all
of the business and/or assets of DPRC, by agreement in form and substance
reasonably satisfactory to Employee, expressly, absolutely and
unconditionally to assume and agree to perform this Agreement in the same
manner and to the same extent that DPRC would be required to perform this
Agreement if no such succession or assignment had taken place. In any
such event, the term "DPRC" as used in this Agreement shall mean any such
successor or assign which executes and delivers the agreement provided
for in the immediately preceding sentence or which otherwise becomes
bound by the terms and provisions of this Agreement by operation of law.
12.11 Employee shall not be required to mitigate damages or the amount of any
payment provided for under this Agreement by seeking other employment or
otherwise. Except as expressly provided herein, no payment or benefit
provided for under this Agreement shall be reduced by any compensation
earned by Employee as the result of employment by another employer after
the date of
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termination with DPRC. Except as expressly provided herein, the
provisions of this Agreement, and any payment or benefit provided for
hereunder, shall not reduce any amounts otherwise payable, or in any way
diminish Employee's existing rights, or rights which would accrue solely
as a result of the passage of time, under any DPRC Benefit Plan,
employment agreement or other contract, plan or arrangement.
13. MISCELLANEOUS PROVISIONS.
13.1 In the event that any of the provisions of this Agreement shall
be held to be invalid or unenforceable, then all other provisions
shall nevertheless continue to be valid and enforceable as though
the invalid or unenforceable parts had not been included in this
Agreement. In the event that any provision relating to the time
period of any restriction imposed by this Agreement shall be
declared by a court of competent jurisdiction to exceed the
maximum time period which such court deems reasonable and
enforceable, then the time period of restriction deemed
reasonable and enforceable by the court shall become and shall
thereafter be the maximum time period. In the event that any of
the provisions of this Agreement shall be determined to cause a
disallowance of any "pooling of interests" accounting treatment
for any merger, acquisition or consolidation of DPRC with another
entity, such provisions shall be deemed to be deleted and of no
force and effect and all other provisions shall nevertheless
continue to be valid and enforceable and read as though the
deleted provisions had not been included in this Agreement.
13.2 This Agreement shall be binding upon the heirs, executors,
administrators, and successors-in-interest of the parties hereto.
13.3 This Agreement shall be construed and enforced according to the
laws of the State of California, excluding its choice of law
rules.
13.4 This Agreement supersedes all previous correspondence, promises,
representations, and agreements, if any, either written or oral,
between DPRC and Employee. No provision of this Agreement may be
modified except by a writing signed by Employee and by the Chief
Executive Officer of DPRC (or by such other person as may be
expressly authorized to sign such writing by the Board of
Directors of DPRC).
13.5 All notices, demands, requests, consents, approvals or other
communications (collectively "Notices") required or permitted to
be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served or
deposited in the United States mail, registered or certified,
return receipt requested, postage prepaid, addressed (i) in the
case of notices to DPRC, to the Chief Executive Officer of DPRC
at DPRC's headquarters office at such time, and (ii) in the case
of notices to Employee, to Employee's home address as set forth
on the employment records of DPRC, or to such other address as
such party shall
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have specified most recently by written notice. Notices shall be
deemed given on the date of service if personally served. Notices
mailed as provided herein shall be deemed given on the third
business day following the date so mailed.
13.6 Should any party institute any action or proceeding to enforce
this Agreement or any provision hereof, or for damages by reason
of any alleged breach of this Agreement or of any provision
hereof, or for a declaration of rights hereunder, the
prevailing party in any such action or proceeding shall be
entitled to receive from the other party all costs and expenses,
including reasonable attorneys', accountants' and experts' fees,
incurred by the prevailing party in connection with such action or
proceeding.
14. ACKNOWLEDGMENT BY EMPLOYEE. Employee (i) has carefully read and
considered the provisions of this Agreement, (ii) has had an opportunity
to review the terms of this Agreement with legal counsel of his choosing,
(iii) fully understands the extent and impact of the terms and provisions
of this Agreement, and (iv) has executed this Agreement voluntarily.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
DATA PROCESSING EMPLOYEE
RESOURCES CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- ----------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
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EXHIBIT A
COMPENSATION OF ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The following summarizes the compensation to which Employee shall be
entitled under the foregoing terms of this Employment Agreement.
1. BASE SALARY: Employee's base salary shall be $255,000 per year,
paid in at least bi-weekly installments. Employee's
base annual salary shall be reviewed and adjusted no
less frequently than once per year. In no event, and
under no circumstances, shall Employee's annual
salary be reduced below the most recent annual
salary.
2. VACATION: During the Term, Employee shall be entitled to five
(5) weeks of paid vacation time per calendar year
(plus such other time as may be permitted by the
Board); provided, however, that any such vacation
time, if not used, will be subject to DPRC's
limitations on carrying forward unused vacation
time, pursuant to which Employee's accrued vacation
time may not exceed six (6) weeks at any time; and,
provided further, that Employee shall use his best
efforts to coordinate with the Chief Executive
Officer of DPRC the dates upon which he uses his
vacation so as to minimize the negative impact upon
DPRC occasioned by Employee's absence. Employee
shall not be entitled to take in excess of four (4)
weeks vacation at any one time, except by the
written consent of the Chief Executive Officer of
DPRC, or upon request of DPRC in connection with
Employee's leave of absence for family, medical or
other reasons, as permitted by law.
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3. OTHER BENEFITS: During the Term, Employee shall be entitled to
participate in and receive benefits under all
profit-sharing plans, pension plans, group medical
plans and other benefit plans for the payment of
additional compensation or benefits to employees of
DPRC that DPRC maintains for senior executive
employees. In the event employee is terminated
without Cause or due to Disability, or resigns for
Good Reason, Employee shall be entitled to
continuation of health and life insurance coverage
for the period of time set forth in Paragraphs 12.2
and 12.4 of this Agreement (the "DPRC Insurance
Coverage Period"). During the DPRC Insurance
Coverage Period, DPRC shall pay the employer portion
of the cost of such coverage at the same levels
offered to its senior executive employees, and
Employee shall pay the employee portion of the cost
of such coverage at the same level paid by its
senior executive employees. Unless Employee was
terminated for Cause, DPRC shall continue, following
the DPRC Insurance Coverage Period, to offer group
medical and life insurance at the same rates and
levels of coverage as are offered to its
then-current senior executive employees, until such
time as Employee reaches age 65 (the "Employee
Insurance Coverage Period"). During the Employee
Insurance Coverage Period, if Employee accepts
insurance coverage from DPRC, Employee shall pay the
full cost of the premiums for such coverage. During
either the DPRC Insurance Coverage Period or the
Employee Insurance Coverage Period, Employee shall
have the option of choosing Preferred Provider
Organization, Exclusive Provider Organization,
Health Maintenance Organization or such other types
of plans or coverages as are available to DPRC's
then-current senior executive employees.
4. AUTOMOBILE DPRC to pay Employee's automobile lease monthly
ALLOWANCE: payments of not more than $1,200, as well as all
gasoline, insurance premiums, registration fees and
repair and maintenance costs of such automobile.
Employee shall be permitted to exchange his leased
vehicle for a new one of equal or comparable value
to that of the then currently leased vehicle to be
replaced, similarly equipped, one time during the
Term.
5. BUSINESS Employee may be authorized to incur reasonable
EXPENDITURES: expenses for promoting and conducting the business
of DPRC, including but not limited to expenditures
for entertainment and travel, in such amounts and at
such times as shall be determined and approved by
the Chief Executive Officer of DPRC. DPRC shall
reimburse Employee monthly for all such approved
business expenses upon presentation of reasonable
documentation establishing the
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amount, date, place and essential character of the
expenditures.
6. INCENTIVE BONUS: Employee's incentive bonus for each fiscal year
shall provide for a maximum bonus of up to 200% of
his base salary for such year and shall be subject
to such terms and conditions as shall be determined
in good faith by the Board of Directors, with the
recommendation of and in consultation with the
Compensation Committee of the Board of Directors.
The incentive bonus may be based on financially
oriented components or upon Employee's individual
accomplishments or both. At the request of Employee,
within ten (10) business days after the commencement
of each fiscal quarter, DPRC shall advance to
Employee up to one-eighteenth (1/18th) of the
maximum bonus payable by DPRC to Employee hereunder.
The incentive bonus earned for a fiscal year of DPRC
(less the aggregate amount of all advances made by
DPRC to Employee with respect to such fiscal year)
shall be paid not later than thirty (30) calendar
days following the review and approval by the Board
of Directors of DPRC of the final financial
statement results of the audit for said fiscal year
by DPRC's independent auditors. In the event that
the aggregate amount of advances made by DPRC to
Employee hereunder during any fiscal year exceeds
the amount of the incentive bonus earned by Employee
for such fiscal year, Employee, within thirty (30)
calendar days of the determination of such amount,
shall pay such excess to DPRC. The current incentive
bonus plan is based on DPRC reaching its internal
target levels of budgeted operating income for the
fiscal year, as it may be amended as a result of
acquisitions for the year included (the "Target
0I"). A total of 50% of Employee's base salary shall
be paid if the Target 0I is achieved by DPRC. For
each 5% above Target 0I achieved by DPRC, Employee
shall receive an additional 10% of base salary up to
the maximum 200% of base salary.
7. INDEMNIFICATION: DPRC shall enter into a directors and officers
Indemnification Agreement with Employee pursuant to
which DPRC will be required to indemnify Employee
against personal liability for acts of DPRC to the
maximum extent permitted by law.
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8. STOCK OPTIONS: Notwithstanding anything to the contrary in any
Stock Option Agreement or Incentive Stock Agreement
previously entered into by DPRC and Employee, DPRC
hereby reaffirms its obligations under and pursuant
to the "Change of Control" provisions set forth in
Paragraph 13 of the Prior Employment Agreement.
Specifically, upon the occurrence of a "change of
control" during the Term, any and all stock options
granted to Employee under DPRC's stock option plans
shall, whether or not Employee is terminated as a
result of such change of control, become immediately
vested and exercisable for a period not to exceed
the lesser of (a) two (2) years, or (b) the date on
which such stock options would otherwise have
terminated (other than by reason of the termination
of the Employment). Notwithstanding the definition
of "change of control" or the two-year time
limitation on accelerated vesting set forth in the
Prior Employment Agreement, for the purpose of the
amendment to all options previously granted to
Employee, as well as all feature options, such stock
options shall vest in full following a "change of
control" during the Term and the term "change of
control" shall mean (i) any merger or consolidation
where DPRC is not the continuing or surviving
corporation or pursuant to which all or
substantially all of the shares of DPRC's Common
Stock are converted into cash, other property or
securities of another corporation, other than, in
either case, a merger or consolidation in which the
shares of DPRC's Common Stock outstanding
immediately prior to such merger or consolidation
represent or are converted into securities
representing more than 50% of the voting power of
the surviving corporation in such merger or
consolidation or the parent of such corporation,
(ii) any sale, lease, exchange or other transfer (in
one transaction or a series of related actions) of
all, or substantially all, of the assets of DPRC,
(iii) the approval by the shareholders of DPRC of
any plan or proposal for the liquidation or
dissolution of DPRC, (iv) any "person" (as such term
is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act")) shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange
Act) of 35% or more of DPRC's outstanding Common
Stock after the date hereof, or (v) there shall be
any change of control of a nature which would be
required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the
Exchange Act or any successor regulation of
substantially similar import, regardless of whether
DPRC is subject to such reporting requirement at
such time.
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In addition, in the event Employee is terminated
without Cause, as defined in Paragraph 12.7 of this
Agreement, the members of the Board of Directors who
are not directly involved in terminating Employee
shall consider accelerating vesting of any unvested
options held by Employee based upon all of the facts
and circumstances surrounding the termination,
including Employee's performance and tenure with
DPRC; provided, however, that the disinterested
Directors involved in such determination shall be
under no obligation to accelerate vesting of options
and shall specifically not do so if such
acceleration would cause a disallowance of "pooling
of interests" accounting in any DPRC merger
transactions.
9. ESTATE PLANNING: DPRC will reimburse Employee for all reasonable
attorney's fees, in an amount not to exceed $5,000
per calendar year, incurred in connection with
creating, reviewing and/or revising Employee's will
and estate plan.
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Exhibit (c)(3)
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT is being executed and delivered as of June
23, 1999 by ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ("Stockholder") in favor of and for the benefit of
COMPUWARE CORPORATION, its subsidiaries and affiliates ("Compuware"), and Data
Processing Resources Corporation ("DPRC").
RECITALS
A. As an employee and Stockholder of DPRC, Stockholder has obtained and
will obtain extensive and valuable knowledge and information concerning the
business of DPRC (including confidential information relating to DPRC and
Compuware and its operations, assets, contracts, customers, personnel, plans and
prospects).
B. Contemporaneously with the execution and delivery of this
Noncompetition Agreement, DPRC is entering into an Agreement and Plan of Merger
(the "Merger Agreement"), pursuant to which it is anticipated that Compuware
will acquire DPRC (the "Acquisition").
C. In connection with the Acquisition and to more fully secure unto
Compuware the benefits of the Acquisition, Compuware has requested that
Stockholder enter into this Noncompetition Agreement.
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In consideration of the foregoing, Stockholder agrees as follows:
1. ACKNOWLEDGMENTS BY STOCKHOLDER. Stockholder acknowledges that the
promises and restrictive covenants that Stockholder is providing in this
Noncompetition Agreement are reasonable and necessary to the protection of
Compuware's business and Compuware's legitimate interests in its acquisition of
DPRC (including DPRC's goodwill) pursuant to the Merger Agreement.
2. NONCOMPETITION. During the period commencing on the Effective Time
(as defined in the Merger Agreement) and ending on the later of (i) the third
anniversary of the Effective Time or (ii) the first anniversary of the
termination of Stockholder's employment with Compuware or DPRC, as the case may
be (the "Restriction Period"), Stockholder shall not, without Compuware's
consent, be or become an officer, director, stockholder, owner, affiliate,
salesperson, co-owner, partner, trustee, promoter, technician, engineer,
analyst, employee, agent, representative, supplier, investor or lender,
consultant, advisor or manager of or to, acquire or hold any interest in, or
permit Stockholder's name to be used in connection with any person or entity
that engages in any business entity which is directly competitive with any
business of DPRC on the Effective Time or the professional services business of
Compuware at the time of termination of your employment (the "Competitive
Business"); provided, however, that nothing in this Section 2 shall prevent
Stockholder from owning as a passive investment less than 1% of the outstanding
shares of the capital stock of a publicly-held corporation if such shares are
actively traded on an established national securities market in the United
States. Under this Noncompetition Agreement, Stockholder's employment with
Compuware or DPRC, as the case may be, shall be deemed to terminate at such time
that Stockholder is neither a full-time nor a part-time employee of Compuware.
3. INDEPENDENCE OF OBLIGATIONS. The covenants and obligations of
Stockholder set forth in this Noncompetition Agreement shall be construed as
independent of any other agreement or arrangement between Stockholder, on the
one hand, and DPRC or Compuware, on the other.
4. SPECIFIC PERFORMANCE. Stockholder agrees that in the event of any
breach or threatened breach by Stockholder of any covenant, obligation or other
provision contained in this Noncompetition Agreement, Compuware and DPRC shall
be entitled (in addition to any other remedy that may be available to them) to
the extent permitted by applicable law (a) a decree or order of specific
performance to enforce the observance and performance of such covenant,
obligation or other provision, and (b) an injunction restraining such breach or
threatened breach. Stockholder further agrees that neither Compuware nor any
other person or entity shall be required to provide any bond or other security
in connection with any such decree, order or injunction or in connection with
any related action or proceeding.
5. NON-EXCLUSIVITY. The rights and remedies of Compuware and DPRC
hereunder are not exclusive of or limited by any other rights or remedies which
Compuware or DPRC may have, whether at law, in equity, by contract or otherwise,
all of which shall be cumulative (and not alternative). Without limiting the
generality of the foregoing, the rights and remedies of Compuware and DPRC
hereunder, and the obligations and liabilities of Stockholder hereunder, are in
addition to their respective rights, remedies, obligations and liabilities under
the law of unfair competition, misappropriation of trade secrets and the like.
This Noncompetition Agreement does not limit Stockholder's obligations or the
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rights of Compuware or DPRC (or any affiliate of Compuware or DPRC) under the
terms of any other agreement between Stockholder and Compuware or DPRC or any
affiliate of Compuware or DPRC.
6. NOTICES. Any notice or other communication required or permitted to
be delivered to Stockholder, DPRC or Compuware under this Noncompetition
Agreement shall be in writing and shall be deemed properly delivered, given and
received when delivered (by hand, by registered mail, by courier or express
delivery service or by facsimile) to the address or facsimile telephone number
set forth beneath the name of such party below (or to such other address or
facsimile telephone number as such party shall have specified in a written
notice delivered in accordance with this Section 6):
IF TO COMPUWARE/DPRC: Compuware Corporation
President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
IF TO STOCKHOLDER: Date Processing Resources
Corporation
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
7. SEVERABILITY. If any provision of this Noncompetition Agreement or
any part of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability or such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) such
invalidity or enforceability of such provision or part thereof shall not affect
the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Noncompetition
Agreement is separable from every other part of such provision.
8. GOVERNING LAW. This Noncompetition Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
California (without giving effect to principles of conflicts of laws).
9. WAIVER. No failure on the part of Compuware or DPRC to exercise any
power, right, privilege or remedy under this Noncompetition Agreement, and no
delay on the part of Compuware or DPRC in exercising any power, right, privilege
or remedy under this Noncompetition Agreement, shall operate as a waiver of such
power, right, privilege or remedy; and no single or partial exercise of any such
power, right, privilege or remedy shall preclude any other or further exercise
thereof or of any other power, right, privilege or remedy. Neither Compuware nor
DPRC shall be deemed to have waived any claim arising out of this Noncompetition
Agreement, or any power, right, privilege or remedy under this Noncompetition
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
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expressly set forth in a written instrument duly executed and delivered on
behalf of such party; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
10. CAPTIONS. The captions contained in this Noncompetition Agreement
are for convenience of reference only, shall not be deemed to be a part of this
Noncompetition Agreement and shall not be referred to in connection with the
construction or interpretation of this Noncompetition Agreement.
11. FURTHER ASSURANCES. Stockholder shall execute and/or cause to be
delivered to DPRC and Compuware such instruments and other documents and shall
take such other actions as Corporation and Compuware may reasonably request to
effectuate the intent and purposes of this Noncompetition Agreement.
12. ENTIRE AGREEMENT. This Noncompetition Agreement sets forth the
entire understanding of Stockholder, DPRC and Compuware relating to the subject
matter hereof and thereof and supersede all prior agreements and understandings
between any of such parties relating to the subject matter hereof and thereof.
13. AMENDMENTS. This Noncompetition Agreement may not be amended,
modified, altered, or supplemented other than by means of a written instrument
duly executed and delivered on behalf of Compuware and Stockholder.
14. ASSIGNMENT. This Noncompetition Agreement and all obligations
hereunder are personal to Stockholder and may not be transferred or assigned by
Stockholder at any time. Either Compuware or DPRC may assign its rights under
this Noncompetition Agreement in whole or in part, without the consent or
approval of the Stockholder or any other person or entity, in connection with
(A) the sale of Compuware or DPRC, or (B) the sale or other transfer of all or a
substantial part of the assets or business of Compuware or DPRC.
15. ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Noncompetition Agreement or the enforcement of any provision of
this Noncompetition Agreement is brought against any party to this
Noncompetition Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
16. EFFECTIVE TIME. This Noncompetition Agreement shall become effective
on the Effective Time and shall have no force or effect if the Effective Time
does not occur.
17. BINDING NATURE; INTERPRETATION OF THIS AGREEMENT. Subject to Section
16, this Noncompetition Agreement will be binding upon Stockholder and
Stockholder's representatives, executors, administrators, estate, heirs,
successors and assigns, and will inure to the benefit of Compuware and DPRC and
their respective successors and assigns. The parties agree that this
Noncompetition Agreement shall not be interpreted against either party solely
because this Noncompetition Agreement was drafted by attorneys for Compuware.
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IN WITNESS WHEREOF, the parties here executed this Noncompetition
Agreement as of the date first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
COMPUWARE CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
DPRC
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