TENTH AMENDMENT TO EMPLOYMENT AGREEMENT
THIS TENTH AMENDMENT TO EMPLOYMENT AGREEMENT is made effective the 6th day of
January, 2001, by and between XXXXXXX COMPUTER RESOURCES, INC., a Delaware
corporation ("Company") and XXXXX X. XXXXXXX, XX (the "Executive").
WHEREAS, on the 12th day of March, 1992, Company and Executive executed an
Employment Agreement ("Agreement") that became effective on the date of the
closing of the initial public offering of the Company (April 10, 1992); and
WHEREAS, Company and Executive entered into an Amendment to Employment Agreement
effective July 6, 1993; and
WHEREAS, Company and Executive entered into a Second Amendment to Employment
Agreement effective October 14, 1993;
WHEREAS, Company and Executive entered into a Third Amendment to Employment
Agreement effective January 6, 1995;
WHEREAS, Company and Executive entered into a Fourth Amendment to Employment
Agreement effective for the fiscal year ending January 5, 1996;
WHEREAS, Company and Executive entered into a Fifth Amendment to Employment
Agreement effective January 6, 1996;
WHEREAS, Company and Executive entered into a Sixth Amendment to Employment
Agreement effective January 6, 1997;
WHEREAS, Company and Executive entered into a Seventh Amendment to Employment
Agreement effective January 6, 1998; and
WHEREAS, Company and Executive entered into an Eighth Amendment to Employment
Agreement effective January 6, 1999; and
WHEREAS, Company and Executive entered into a Ninth Amendment to Employment
Agreement effective January 6, 2000; and
WHEREAS, Company and Executive desire to amend the Agreement, as amended, to
reflect certain changes agreed upon by Company and Executive regarding
compensation payable to Executive for the 2000 fiscal year and thereafter.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Section 3 of the Agreement is amended effective for the fiscal year
commencing January 6, 2001, by deleting the word "President" from lines 1 and 4
of such Section.
2. Section 5(a)(iii) shall be amended as follows:
(iii) During the Company's 2001 fiscal year, Executive shall be
paid at the annual rate of Four Hundred Ninety-Five Thousand
Dollars ($495,000.00). This rate shall continue for each
subsequent year of the Agreement unless modified by the
compensation committee as provided in Section 5(a)(iv).
3. Section 5(b)(i) is amended commencing with the 2001 fiscal year as
follows:
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(i) Executive shall be entitled to a bonus and non-qualified
stock option award for the 2001 fiscal year in the event
Employee satisfies the applicable criteria set forth below
of the income from operations (as defined) of the Company
for 2001, as follows:
(i) Income from operations greater than $52,000,000.00
but less than or equal to $56,000,000.00 =
$200,000.00 cash bonus and 25,000 non-qualified stock
options;
(ii) Income from operations greater than $56,000,000.00
but less than or equal to $60,000,000.00 =
$400,000.00 cash bonus and 50,000 non-qualified stock
options; or
(iii) Income from operations greater than $60,000,000.00 =
$600,000.00 cash bonus and 75,000 non-qualified stock
options.
Within thirty (30) days of the conclusion of the 2001 fiscal year of the
Company and each fiscal year thereafter, Executive and Company shall agree
upon the threshold of operating income to be utilized for determining any
bonus and non-qualified stock options to be awarded to Executive for such
year. Such bonus and non-qualified stock option awards for each subsequent
year of this Agreement shall be consistent with Executive's prior plan.
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Any award of stock options to acquire the common stock of the Company shall
be at the fair market value of such common stock as of the applicable date.
For purposes of this Agreement, the fair market value as of the applicable
date shall mean with respect to the common shares, the average between the
high and low bid and asked prices for such shares on the over the counter
market on the last business day prior to the date on which the value is to
be determined (or the next preceding date on which sales occurred if there
were no sales on such date).
For purposes of this Agreement, the term "income from operations" shall be
computed without respect to the bonus payable to the Executive pursuant to
this Section 5(b)(i) and shall exclude any gains or losses realized by the
Company on the sale or other disposition of its assets (other than in the
ordinary course of business). Such income from operations of the Company
shall be determined on a consolidated basis by the independent accountant
regularly retained by the Company, subject to the foregoing provisions of
this subparagraph (i) in accordance with generally accepted accounting
principles. Said determination and payment of such bonus shall be made
within ninety (90) days following the end of the fiscal year of the Company
and the determination by the accountant shall be final, binding and
conclusive upon all parties hereto. In the event the audited financial
statements are not issued within such ninety-day period, the Company shall
make the payment due hereunder (if any) based on its best reasonable
estimate of any liability hereunder, which amount shall be reconciled by
both parties once the audited financial statements are issued. Company
shall have the ability to advance amounts to Executive based on the
projected amount of the bonus compensation to be paid hereunder. In the
event that such advance payments are in excess of the amount due hereunder,
any such excess shall be reimbursed to Company by Executive within ninety
(90) days following the end of the fiscal year. In the event such advance
payments are less than the amount of said bonus as determined hereunder,
any additional amount due Executive shall be paid within ninety (90) days
following the end of the fiscal year of the Company.
Except as modified above, the terms of the Employment Agreement, as amended, are
hereby affirmed and ratified by the parties.
IN WITNESS WHEREOF, this Tenth Amendment to Employment Agreement has been
executed as of the day and year first above written.
WITNESSES: XXXXXXX COMPUTER RESOURCES, INC.
_______________________
_______________________ By: _________________________________
_______________________
_______________________ ______________________________________
XXXXX X. XXXXXXX, XX, Executive
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