EXHIBIT 10.8
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (the "Amendment"), dated as of the
23rd day of January, 2001 by and between COMFORCE Corporation ("COMFORCE") a
Delaware corporation, and COMFORCE Operating, Inc. ("COI"), a Delaware
corporation that is wholly-owned by COMFORCE (COMFORCE and COI are collectively
referred to as the "Employer"), and Xxxx X. Xxxxxxx, a resident of the State of
Florida ("Employee").
RECITALS:
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A. The parties entered into an Employment Agreement (the "Employment
Agreement") dated as of January 1, 1999, as amended by the amendment dated as of
March 28, 2000, pursuant to which Employer formalized the terms upon which
Employee is employed by Employer.
B. The parties desire to further amend the Employment Agreement as herein
provided.
NOW, THEREFORE, in consideration of the promises and mutual obligations of
the parties contained herein, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Section 2 of the Employment Agreement is hereby amended by changing
the Initial Termination Date therein from December 31, 2001 to December 31,
2003.
2. Section 4(a) of the Employment Agreement is hereby amended in its
entirety to read as follows:
(a) Base Salary.
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(i) Base Salary for 2000.
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As Employee's base compensation for all services to be performed
hereunder during the calendar year ending on December 31, 2000, Employer shall
pay Employee an annual salary of One Hundred Thousand Dollars ($100,000),
payable in accordance with the Employer's payroll practices for its officers.
(ii) Base Salary Commencing January 1, 2001.
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Commencing January 1, 2001 and continuing during the balance Term
of Employment, as Employee's base compensation for all services to be
performed hereunder, Employer shall pay Employee an annual salary ("Base
Salary") of Three Hundred Eighty Five Thousand Dollars ($385,000), payable in
accordance with the Employer's payroll practices for its officers. The Base
Salary will increase annually during the Term of Employment on each January 1,
beginning January 1, 2002, by the greater of (i) seven percent (7%) or (ii) a
percentage equivalent to the percentage increase of (a) the Price Index (as
defined below) for the most recently available month at the time of each such
increase over (b) the Price Index reported for the same month one year prior
(such percentage increase calculated pursuant to this Section 4(a) is referred
to herein as the "CPI Increase"). The Base Salary shall also be increased from
time to time at the discretion of the Board of Directors or any committee
thereof having authority over Employee's compensation to account for material
changes of circumstances of the Employer or of the responsibilities of
Employee, and may be increased by the Board or such committee from time to
time in its discretion for any other reason whatsoever.
For purposes of this Agreement, "Price Index" shall mean the United
States Department of Labor, Bureau of Labor Statistics, Consumer Price Index
U.S. City Averages, all Urban Consumers, All Items, 1982-84 = 100. If the
manner in which the Price Index as determined by the Department of Labor shall
be substantially revised, or if the 1982-84 average shall no longer be used as
an index of 100, an adjustment shall be made in such revised index so that the
number used shall be that which
would have been obtained if the Price Index had not been so revised or if said
average was still in use. If the Price Index shall become unavailable for any
reason whatsoever, the parties will substitute therefor a comparable index
based upon changes in the cost of living or purchasing power of the consumer
dollar published by an other governmental agency or, if no such index shall
then be available, a comparable index published by a major bank or other
financial institution.
3. Section 4(d) of the Employment Agreement is amended in its entirety to
read as follows:
(d) Benefit and Deferred Compensation Plans
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(i) Medical, Dental and Pension Benefits.
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Employee shall receive such incidental benefits of employment, such as
medical and dental insurance, and pension plan participation as are provided
generally to the Employer's other executive officers. Without limiting the
foregoing, effective as of January 1, 2000, the Company shall reimburse
Employee for the amounts he is required to pay for health insurance in
accordance with the terms of the Company's cafeteria plan under Section 125 of
the Internal Revenue Code of 1986, as amended.
(ii) Continuation of Salary During Disability.
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If Employee becomes disabled during the Term of Employment because of
sickness, physical or mental disability, or for any other reason so that he is
unable to perform his duties hereunder. Employer agrees to continue
Employee's salary during such disability throughout the Term of Employment.
These benefits may be provided in whole or in part by a policy of disability
insurance.
(iii) Deferred Compensation Plan.
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Notwithstanding anything to the contrary herein contained, this
Agreement shall not be deemed to have terminated the deferred compensation
plan of the Company that became effective in 1992, and the Company shall make
all contributions to such plan in respect of the Employee as required thereby.
4. Section 4(e) of the Employment Agreement is amended in its
entirety to read as follows:
(e) Incentive Compensation.
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(i) Incentive Compensation for 2000.
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In addition to Employee's compensation as provided herein, Employer
shall pay to Employee incentive compensation for the calendar year ending on
December 31, 2000 in an amount equal to 10% of the Employer's consolidated
pre-tax operating income in excess of $2,000,000, but not in excess of
$4,000,000, plus 5% of such income in excess of $4,000,000, but not in excess
of $10,000,000, plus 3.5% of such income in excess of $10,000,000.
(ii) Incentive Compensation Commencing January 1, 2001.
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In addition to Employee's compensation as provided herein, Employer
shall pay to Employee incentive compensation for the calendar year ending on
December 31, 2001 and each year during the balance of the Term of Employment
in an amount equal to 5% of the Employer's pre-tax operating income in excess
of $2,500,000, but not in excess of $3,000,000 plus 3.5% of such income in
excess of $3,000,000. For this purpose, "pre-tax operating income" shall mean
the consolidated earnings of the Employer and its subsidiaries before (i)
deduction of, or allowance or provision for, taxes based on income, (ii)
deduction of, or allowance or provision for, the incentive compensation
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payable pursuant to this Agreement or incentive compensation based upon
consolidated income or profits of the Employer payable pursuant to any
other employment agreement or arrangement between the Employer and any
employee thereof, or as from time to time hereafter amended, or any
successor agreement thereto, and (iii) any extraordinary gain or loss.
(iii) Computation and Payment of Incentive Compensation.
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The amount of any incentive compensation to which Employee becomes
entitled to receive under this Agreement shall be payable as follows: Within
45 days after the end of each of the first three quarters in each calendar
year (which is the Company's fiscal year), the Company shall make an estimated
payment of incentive compensation to Employee on the basis of the Company's
unaudited pre-tax operating income in respect of the period from the beginning
of the year to the close of such quarter. Estimated payments shall be made in
amounts such that at the end of each of the first three quarters of the year,
Employee shall have received an amount equal to 50% of the incentive
compensation to which he would be entitled based upon the Company's pre-tax
operating income in respect of the period then ended, after taking into
consideration of all prior estimated payments made for such year.
On or before April 30 of each year during the term of this Agreement,
the actual amount of incentive compensation, if any, to which Employee shall
be entitled to receive for the most recently completed calendar year shall be
computed, and the amount by which such incentive compensation exceeds the
aggregate estimated payments made for such year shall be paid to Employee. In
the event, however, that the aggregate amount of estimated incentive
compensation previously paid exceeds the actual incentive compensation to
which Employee is entitled, Employee shall promptly repay to the Company the
amount of such excess upon receipt of written notice from the Company advising
Employee of same.
Notwithstanding anything to the contrary herein contained, if
Employee's employment hereunder terminates other than on December 31, Employee
shall be entitled to receive incentive compensation for the partial year of
his employment, determined as follows: By multiplying the amount of incentive
compensation that would have been payable had Employee been employed by the
Company for the entire calendar year by a fraction, the numerator of which
shall be the number of days Employee was employed during such calendar year
and the denominator of which shall be 365. Such partial year incentive
compensation shall be payable on or before April 30 of the year following the
year in which Employee's employment has terminated.
5. All other provisions of the Employment Agreement shall remain in full
force and effect.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the day
and year first above mentioned.
COMFORCE CORPORATION
By:_________________________________
Its:
COMFORCE OPERATING, INC.
By:_________________________________
Its:
EMPLOYEE
___________________________________
Xxxx X. Xxxxxxx
