Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
RE: J. XXXXXXX XXXXX
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is entered
into by and between Diversified Corporate Resources, Inc., a Texas Corporation
(herein referred to as the "Company" and J. Xxxxxxx Xxxxx (herein referred to as
the "Executive").
W I T N E S S E T H:
WHEREAS, the parties hereto previously entered into that certain Employment
Agreement Re: J.Xxxxxxx Xxxxx dated as of June 15, 2000 (the "Prior Agreement")
and
WHEREAS, this Agreement constitutes an amendment and restatement of the
Prior Agreement; and
WHEREAS THE Company desires to continue to employ the Executive and the
Executive desires to be employed by the Company; and
WHEREAS, the purpose of this document is to set forth the terms and
conditions of such employment.
NOW THEREFORE, for and in consideration of the mutual advantages and
benefits accruing respectively to the parties hereto, the mutual promises
hereinafter made and the acts to be performed by the respective parties hereto,
the Company and the Executive do hereby contract and agree as follows:
1. Employment. The Company hereby employs the Executive as the Chief
Executive Officer of the Company, and the Executive hereby accepts such
employment, to perform the duties and render services as herein set forth. Such
employment shall continue during the term of this Agreement.
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2. Term. Except in the case of earlier termination as herein specifically
provided, the Executive's employment with the Company pursuant to this Agreement
shall be for the period beginning November 1, 2001 and ending December 31, 2003
(the "Termination Date").
3. Base Compensation. As base compensation for the services of Executive
during the term hereof, the Company shall pay the Executive a salary at an
annual rate to be fixed from time to time by the Board of Directors of the
Company but in no event less than $250,000.00 plus any additional compensation
which the Board of Directors of the Company may from time to time determine. The
Executive's salary hereunder shall be paid in equal semi-monthly installments
(subject to reduction for such payroll and withholding deductions as may be
required by law), and may be paid, in whole or in part, by one or more of the
subsidiaries (the "Subsidiaries") of the Company.
In addition to the Executive's base salary, the Executive shall be entitled
to each of the following (at the Company's expenses unless otherwise indicated):
(a) the right to receive an annual bonus pursuant to such bonus plan(s) which
the Board of Directors of the Company may hereafter adopt with respect to the
Executive, (b) health insurance coverage now or hereafter in effect which shall
provide for payment of health, dental and related expenses incurred during the
term of this Agreement with respect to the Executive (including long-term
disability coverage paid for the Executive), the Executive's spouse or the
Executive's children, and which shall contain such benefits and options as shall
be made available to other executives of the Company and/or the Subsidiaries,
(c) the right to participate in any and all 401(k) plans and Section 125 plans
now in effect or hereafter adopted by the Company, (d) the right to participate
in any executive stock option plan which the Board of Directors of the Company
may hereafter adopt with respect to the Executive, (e) an automobile allowance
of $ 1,000 per month, (f) payment or reimbursement of monthly dues payable with
respect to such club membership in the initial amount of $ 350.00 per month, and
(g)
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the right to all fringe benefits generally made available to other executives
and/or employees of the Company.
In addition to the foregoing, the Executive shall be entitled to (a) such
vacation leave as shall be permitted by the Company's standard policies, or (b)
if such standard policies provide for a lesser amount of vacation leave, minimum
annual vacation leave of fifteen (15) days per year with full pay, and thirty
(30) days per year of sick leave with full pay (this number of days of sick
leave may be extended if the Board of Directors of the Company approves).
The Executive shall also be entitled to receive such fees and/or
compensation, if any, as shall be granted to the Executive by the Board of
Directors of the Company in connection with the Executive serving as a director
of the Company and any of the subsidiaries of the Company.
4. Duties and Services. During the term of this Agreement, the Executive
agrees to (a) do his utmost to enhance and develop the best interests and
welfare of the Company, (b) give his best efforts and skill to advancing and
promoting the growth and success of the Company, and (c) shall be responsible
for management, fiscal responsibilities and strategic planning and perform such
duties or render such services as the Board of Directors of the Company may,
from time to time, reasonably confer upon or impose on the Executive.
Executive's authority and responsibility in the Company shall at all times be
subject to the review and discretion of the Board of Directors, who shall have
the final authority to make decisions regarding the business of the Company. It
is understood that the Executive shall report directly to the Board of Directors
of the Company.
5. Termination.
a. The Company may terminate the Executive's employment pursuant to
this Agreement at any time for "cause" as herein defined. The term "cause"
shall solely mean any of the following events set forth in this paragraph:
(i) the Executive's conviction or plea of guilty to a crime involving moral
turpitude, (ii) any will full acts of acts of dishonesty and theft or the
will full
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violation of any law, rule or regulation (other than traffic violation or
other minor offenses) on the part of the Executive which, in the opinion of
the Board of Directors of the Company, is detrimental to the best interests
of the Company. However, no act or failure to act on the Executive's part
shall be considered will full or detrimental to the best interests of the
Company unless done or omitted to be done in bad faith and without
reasonable belief by the Executive that the action or omission was in the
best interest of the Company and (iii) a will full, intentional and
material violation by the Executive of any written policy of the Board of
Directors of the Company which is not corrected within ninety (90) days
after receipt by the Executive of a detailed written explanation from the
Board of Directors of the Company. Any decision by the Board of Directors
of the Company to terminate the Executive for cause must be approved by the
favorable vote of seventy-five percent (75%) of all members of the Board of
Directors of the Company excluding the Executive.
b. The Company may terminate the Executive as an employee of the
Company at any time during the term of this Agreement if a majority of all
of the members of the Board of Directors of the Company approves a
resolution authorizing such action and reflecting that such action is in
the best interests of the Company. However, unless the Executive's
employment is terminated for "cause" (as defined in paragraph 5(a)), any
termination of the Executive's employment shall not terminate the Company's
obligations to pay to the Executive the severance benefits as hereinafter
set forth, or to comply with the other requirements of this Agreement.
c. The Executive may terminate his employment with the Company at any
time by giving ninety (90) days written notice to the Company.
d. The Executive's employment by the Company shall automatically
terminate on the date of the Executive's death if the Executive dies during
the term of this Agreement.
e. If the Executive is incapacitated by an accident, sickness or
otherwise, so as to render him mentally or physically incapable of
performing the services required of him pursuant
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to this Agreement, Executive's employment by the Company shall terminate at
such time as the Board of Directors of the Company determines (with at
least seventy-five percent of the directors other than the Executive voting
in favor) that the Executive is so disabled and that this Agreement should
be terminated by reason of such disability. Notwithstanding the foregoing,
the Executive shall have the right to contest any determination of
disability by the Board of Directors of the Company. In the event that the
Executive does contest such determination, such matter shall be resolved by
arbitration pursuant to Section 13(c) of this Agreement.
6. Severance and Other Payments.
a. If the Executive's employment pursuant to this Agreement is
terminated for "cause" (pursuant to paragraph 5(a)) or due to the death or
disability (as determined pursuant to paragraph 5(e) of this Agreement) of
the Executive, the Company shall not be obligated to pay or provide any
severance compensation or benefits to the Executive.
b. If the Executive ceases to be an employee of the Company (either
during the term of this Agreement or at any time subsequent to the
termination of this Agreement) for any reason other than pursuant to
Paragraphs 5(a), 5(c) (except for a "Good Reason" termination by the
Executive as defined below), 5(d) or 5(e) of this Agreement, the Company
agrees to pay to the Executive an amount equal to the base compensation
which would have been paid to the Executive during the period of time from
the date of the termination of the Executive's employment with the Company
for a period of twelve (12) months following the date the Executive ceases
to be an employee of the Company and the Subsidiaries (such time period is
herein referred to as the "Severance Period"). In addition to the foregoing
severance payment, the Executive and his family shall continue to
participate in the Company's group health plan, at no cost to the
Executive, during the Severance Period. Notwithstanding the foregoing, in
the event of a Special Change in Control of the Company (as hereinafter
defined) and if the Executive's employment with the Company is
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terminated for any reason other than Voluntary Termination (as hereinafter
defined) or termination for cause as provided for herein during the
twenty-four (24) month period beginning on the Effective Date of such
Special Change in Control, (i) the Severance Period shall be extended by
six (6) months so that the Severance Period shall be eighteen (18) months
following the date the Executive ceases to be an employee of the Company
and the Subsidiaries (such extended time period is herein referred to as
the "Extended Severance Period"), and (ii) the payments to the Executive
hereunder with respect to the Extended Severance Period shall be at such
times and in such amounts as would have been paid to the Executive during
the Extended Severance Period had the Executive's employment not been
terminated.
c. If the Executive's employment is terminated during the term of this
Agreement, for any reason other than cause, the Executive (i) shall be
entitled to receive a prorata share (based upon the number of months
employed during the calendar year in which employment with the Company is
terminated) of any bonus or incentive compensation which the Executive
would otherwise have been entitled to receive had he remained employed for
the entirety of the calendar year involved, and (ii) shall have twelve (12)
months to exercise any stock options heretofore or hereafter granted to the
Executive by the Board of Directors of the Company.
d. Commencing in June, 2000 and during the time of Executive's
employment with the Company and all of its subsidiaries, the Company shall
fund a deferred compensation program for the Executive in the amount of
$3,000.00 per month. All funded pursuant to this deferred compensation
arrangement shall be paid to the Executive, at the date of termination of
the Executive's employment with the Company, in the manner anticipated by
the deferred compensation program previously implemented by the Company for
the Executive.
Notwithstanding the foregoing, in the event of a Special Change in Control
of the Company (as hereinafter defined) and if the Executive's employment with
the Company terminates for any
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reason other than Voluntary Termination (as hereinafter defined) or termination
for cause as provided for herein during the twenty-four (24) month period
beginning on the Effective Date of such Special Change in Control, the Company's
obligation to fund the deferred compensation program shall extend until the
expiration of the Extended Severance Period.
7. Working Conditions. The Company will provide the Executive with a
private office and secretarial services.
8. Relocation. In the event that the Board of Directors of the Company
relocates the primary office of the Executive outside of the Dallas, Texas
metropolitan area, the Company shall pay all moving expenses of the Executive to
the place of the new office. Absent the written consent of the Executive, the
Company shall not relocate the primary office of the Executive to an office
location which is not the general corporate office of the Company.
9. Travel and Entertainment. The Executive is authorized to incur
reasonable business expenses on behalf of the Company, including, but not by way
of limitation, expenditures of entertainment, gifts and travel; if any expenses
are of a kind or a cost in excess of the written policies established by the
Board of Directors of the Company, such expenses must be expressly authorized by
the Board of Directors of the Company. The Company agrees to reimburse the
Executive for all such expenses upon the Executive's presentation of an itemized
account of such expenditures. In addition to the foregoing, the Executive is
entitled to incur, and to be reimbursed by the Company, various and sundry fees,
costs and expenses (including, but not by way of limitation, fees and costs
involved in attending courses, seminars and continuing education sessions) in
connection with the Executive's position with the Company. These costs include
the cost of membership in and attendance at, meetings of one or more
professional organizations including, but not by way of limitation, the CEO
Club.
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10. Non-Competition Agreement. In the event that the termination of
employment of the Executive pursuant to this Agreement is effectuated by the
Executive electing to terminate his employment pursuant to this Agreement, and
subject to the condition that the Company shall pay the severance compensation
as provided in Paragraph 6(b) of this Agreement, the Executive agrees that the
Executive shall not, for a one year period of time following the date of
termination of this Agreement, within Dallas, Dallas County, Texas or within a
radius of fifty (50) miles from any business location of the Company and its
subsidiaries in the continental United States on the Termination Date, enter
into or engage generally in direct competition with the Company either as an
individual on his own or as a partner or joint venturer, or as an employee or
agent for any person, or as an officer, director, shareholder or otherwise of
any entity other than the Company or an affiliate of the Company.
11. Notices. All notices or other instruments or communications provided
for in this Agreement shall be in writing and signed by the party giving same
and shall be deemed properly given if delivered in person, including delivery by
overnight courier, or if sent by registered or certified United States mail,
postage pre-paid, addressed to such party at the address listed below. Each
party may, by notice to the other party, specify any other address for the
receipt of such notices, instruments or communications. Any notice, instrument
or communication sent by telegram shall be deemed properly given only when
received by the person to whom it is sent.
12. Certain Conditions.
a. "Special Change in Control" means (i) any person or entity,
including a "group" as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
other than the Company, a majority-owned subsidiary thereof, or
Executive and any affiliate of the Executive, becomes the
beneficial owner (as defined pursuant to Schedule
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13(d) under the Exchange Act) of the Company's securities having
twenty-five percent (25%) or more of the combined voting power of
the then outstanding securities of the Company that may be cast
for the election of directors of the Company, or (ii) as the
result of, or in connection with, any cash tender or exchange
offer, merger or other business combination, sales of assets or
contested election, or any combination of the foregoing
transactions, less than a majority of the combined voting power
of the then outstanding securities of the Company or any
successor corporation or entity entitled to vote generally in the
election of the directors of the Company, or such other
corporation or entity after such transaction, are beneficially
owned (as defined pursuant to Section 13(d) of the Exchange Act)
in the aggregate by the holders of the Company's securities
entitled to vote generally in the election of directors of the
Company immediately prior to such transaction, or (iii) during
any period of two consecutive years, individuals who at the
beginning of any such period constitute the Board of Directors of
the Company cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for
election by the Company's shareholders, of each director of the
Company first elected during such period was approved by a vote
of at least two-thirds of the directors of the Company then still
in office who were directors of the Company at the beginning of
any such period.
b. The "Effective Date" of such Special Change in Control shall be
the earlier of the date on which an event described in Section
12(a) (i), (ii), or
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(iii) occurs, or if earlier, the date of the occurrence of (i)
the approval by shareholders of an agreement by the Company, the
consummation of which would result in an event described in
Section 12(a) (i), (ii), or (iii), or (ii) the acquisition of
beneficial ownership (as defined pursuant to Section 13(d) of the
Exchange Act), directly or indirectly, by any entity, person or
group (other than the Company, a majority-owed subsidiary of the
Company, or the Executive and any affiliate of the Executive) of
securities of the Company representing five percent (5%) or more
of the combined voting power of the Company's outstanding
securities, provided, however, that the events described in
Section 12(b)(i) and (ii) will be considered the Effective Date
of a Special Change in Control if they are followed within six
(6) months by an event described in Section 12(a) (i), (ii), or
(iii).
c. "Voluntary Termination" shall mean Executive's resignation from
the Company unless such resignation is for Good Reason. Good
Reason shall mean the following (i) without Executive's express
written consent, the assignment to Executive of any duties
materially inconsistent with his position, duties,
responsibilities and status (including his removal from the Board
of Directors) with the Company, (ii) a reduction of Executive's
base compensation and bonus compensation (other than a reduction
in payments under the Company's incentive bonus program based on
a reduction in net profits of the Company) to an amount that is
greater than ten percent (10%) lower than such compensation,
(iii) relocation of Executive's principal location of work to any
location that is both (A) in
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excess of fifty (50) miles from the location of Executive's
principal location of work, and (B) in excess of the sum of the
distance from the Executive's principal residence to the location
of the Executive's principal location of work plus fifty (50)
miles, (iv) at the effective Date of a Special Change in Control
the Company fails to require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of the
Company, by agreement in form and substance reasonably
satisfactory to the Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent
that the Company would be required to perform this Agreement if
no such succession had taken place, or (v) any material breach of
this Agreement as in effect on the Effective Date of the Special
Change in Control by the Company.
13. Miscellaneous.
a. Subject to the condition that this Agreement is not assignable by
either party without the prior written consent of the other party, the
terms and provisions of this Agreement shall inure to the benefit of, and
shall be binding on, the parties hereto and their respective heirs,
representatives, successors and assigns.
b. This Agreement supersedes any other agreements, either oral or in
writing, between the parties to this Agreement, with respect to the
employment of the Executive by the Company. This Agreement contains the
entire understanding of the parties and all of the covenants and agreement
between the parties with respect to such employment. Any such prior
agreements related to employment of the Executive by the Company are hereby
terminated without obligation for any
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payments due thereunder, except for unpaid obligations which accrued and
become payable prior to the termination of any such agreements.
c. Any controversy between the parties to this Agreement involving the
construction or application of any of the terms, covenants, or conditions
of this Agreement (including, but not by way of limitation, the
determination of any amounts payable under the terms of this Agreement)
shall be submitted to arbitration if either party to this Agreement shall
request arbitration by notice in writing to the other party. In such event,
the parties to this Agreement shall, within thirty (30) days after this
Paragraph 13(c) is invoked, both appoint one person as an arbitrator to
hear and determine the dispute, and if such arbitrators shall be unable to
agree within fifteen (15) days after selection of the second of the two,
then the two arbitrators so chosen shall, within fifteen (15) days, select
a third impartial arbitrator whose decision shall be final and conclusive
upon the parties to this Agreement. The decision of the third arbitrator
shall be rendered within fifteen (15) days after selection. The individual
parties expenses of the initial arbitration proceedings conducted pursuant
to this Agreement shall be borne separately by each party to this
Agreement; the expenses of a third arbitrator shall be borne equally by the
Company and the Executive.
d. In the event of any litigation between the parties related to the
compliance with the terms and conditions of this Agreement, the parties
hereto acknowledge and agree that such litigation proceedings must be held
in Dallas County, Texas.
e. This Agreement has been made under and shall be governed by the
laws of the State of Texas.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the 1st day of November, 2001, but actually executed this ____
day of October, 2001.
COMPANY:
DIVERSIFIED CORPORATE RESOURCES, INC.
By:
----------------------------------------
Xxxxx X. Xxxxxxxx, President
Address: 00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
EXECUTIVE:
---------------------------------------------
J. Xxxxxxx Xxxxx
Address: 0000 Xxxx Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
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