1
EXHIBIT 10.2
AMENDMENT OF
EMPLOYMENT AGREEMENT
WHEREAS, Acsys, Inc. (formerly known as ICCE, Inc., and referred to
herein as the "Parent Company"), Acsys Resources, Inc. (the "Company"), and
Xxxxx X. Xxxxx (the "Executive") have entered into an employment agreement dated
September 1997 (the "Employment Agreement");
WHEREAS, the Parent Company, Xxxxxxx B.V. ("Xxxxxxx"), Platform
Purchaser Inc. ("Purchaser"), Vedior N.V. and Select Appointments North America
Inc. have entered into an agreement dated April 16, 2000 (the "Merger
Agreement") providing for the merger of Purchaser with and into the Parent
Company with the Parent Company surviving as a wholly owned subsidiary of
Xxxxxxx (the "Merger"), and a condition of the consummation of the Merger
pursuant to the Merger Agreement is that the Executive enter into this
amendment;
WHEREAS, subject to the terms of the Merger Agreement, Purchaser is to
purchase Shares pursuant to an Offer if the Minimum Tender Condition is
satisfied, and the date on which such purchase occurs is referred to as the
"Tender Date" for purposes of this amendment (as the terms "Shares," "Offer,"
and "Minimum Tender Condition" are defined in the Merger Agreement);
NOW, THEREFORE, pursuant to Section 4.5 of the Employment Agreement, IT
IS AGREED by and among the parties hereto that, effective as of the Tender Date,
the Employment Agreement is hereby amended in the following particulars;
provided however, that this amendment shall be without effect if the Tender Date
does not occur, or if the Executive's employment with the Company terminates
prior to the Tender Date:
1. By substituting the phrase "until (and including the date of) the
two-year anniversary of the Tender Date (as defined below)" for the
phrase "for a period of three (3) years" where the latter phrase
appears in Section 1.1 of the Employment Agreement, and by deleting the
second sentence of Section 1.1.
2. By substituting the phrase "Executive Vice President - Professional
Services" for the word "President" in each place the latter word
appears in Section 1.2 of the Employment Agreement.
3. By substituting the following for Section 1.3 of the Employment
Agreement:
"1.3 Compensation. For services to be rendered by
Executive under this Agreement, Company shall pay Executive an annual
base salary of $225,000. In addition, Executive shall be eligible to
receive bonus compensation as hereinafter set forth. The determination
of such bonus amount and the time of payment of such bonus shall be
substantially in accordance with the description of the determination
of such bonus in
2
accordance with Exhibit A to this Agreement, which is attached to and
forms a part of this Agreement. The revenue and EBITDA goals for the
year 2000 shall be as currently set forth in the budget prepared by the
Company's management for the year 2000. The revenue and EBITDA goals
for the year 2001 shall be established by the Company's management in
accordance with historical practices but shall be subject to approval
by the Company's Board of Directors. Notwithstanding the foregoing
provisions of this Section 1.3, in no event shall the total annual
bonus paid for any calendar year beginning on or after January 1, 2000
be less than $75,000."
4. By adding the following new Section 1.4(d) to the Employment Agreement:
"(d) Acsys, Inc. ("Acsys"), Xxxxxxx B.V. ("Xxxxxxx"),
Platform Purchaser Inc. ("Purchaser"), Vedior N.V. and Select
Appointments North America Inc. have entered into an agreement dated
April 16, 2000 (the "Merger Agreement") providing for the merger of
Purchaser with and into Acsys with Acsys surviving as a wholly owned
subsidiary of Xxxxxxx (the "Merger"). Subject to the terms of the
Merger Agreement, Purchaser is to purchase Shares pursuant to an Offer
if the Minimum Tender Condition is satisfied, and the date on which
such purchase occurs is referred to as the "Tender Date" for purposes
of this Agreement (as the terms "Shares," "Offer," and "Minimum Tender
Condition" are defined in the Merger Agreement). As of the Tender Date,
the Company shall make a lump sum cash payment to the Executive equal
to $487,500, if the Executive is employed by the Company on that date.
As soon as practicable after the two-year anniversary of the Tender
Date, if the Executive is employed by the Company on such two-year
anniversary, the Executive shall be entitled to a second payment of
$487,500."
5. By substituting the phrase "following termination of employment for any
reason" for the phrase "thereafter, unless Executive is terminated
other than for Cause (as defined below) or Executive resigns for Good
Reason (as defined below)" where the latter phrase appears in the first
sentence of each of Sections 2.2, 2.3, and 2.4 of the Employment
Agreement.
6. By deleting paragraphs (a), (b), and (c) of Section 3.2 of the
Employment Agreement, and substituting the following for such
paragraphs:
"(a) a material breach by the Company of any material
provision of this Agreement; provided, however that a change in the
Executive's duties, responsibilities, authority, or reporting
relationships shall not constitute a basis for a "Good Reason"
termination unless either (i) such change results in assignment to the
Executive of a position that is at a lower rank than the rank held by
the Executive immediately prior to the change, or (ii) the Executive is
assigned tasks that would be materially inconsistent with those of the
position assigned to the Executive, or the Executive, in any material
respect, fails to be given the authority, power, responsibilities and
duties as are inherent in the position assigned to the Executive and
necessary to carry out the Executive's responsibilities and the duties
of the position; or
3
(b) relocation of Executive out of the metropolitan
Philadelphia area, provided, however, that the Executive shall from
time to time, as may be necessary to facilitate the Company's business,
be required to render a portion of his services hereunder at the
Company's corporate headquarters in Washington D.C."
7. By substituting the following for Section 3.3(a) of the Employment
Agreement:
"(a) Termination Without Cause, Resignation for Good
Reason. If the Executive's employment with the Company terminates at
any time on or after the Tender Date, and prior to the two-year
anniversary of the Tender Date, and any one of the paragraphs (i), (ii)
or (iii) below are applicable to the termination, Executive shall be
entitled to a lump sum severance payment of $487,500:
(i) the Executive resigns for Good Reason;
(ii) the Executive's employment is terminated for
Cause under circumstances described in Section 3.1(c)(vi) (relating to
termination for failure to meet performance expectations), none of the
other circumstances of "Cause" as described in Section 3.1(c)(i)
through (v) are applicable to the Executive, and there has not been
willful and continued dereliction of duties by the Executive that is
not corrected by the Executive within a reasonable period of time after
a written demand for corrective action is delivered to the Executive by
the Company's Chief Executive Officer; or
(iii) the Executive's employment is terminated by the
Company without Cause."
8. The first sentence of Section 3.3(b) of the Employment Agreement is
deleted in its entirety and there is substituted in its place the
following:
"If Executive voluntarily resigns for other than Good Reason, Executive
shall not be entitled to any severance pay."
9. By deleting the following sentence where it appears in Section 3.3(c)
of the Employment Agreement:
"If termination is for Cause pursuant to Section 3.1(c)(vi), then
Executive shall be entitled to severance equal to pay for the remainder
of the then-current term of this Agreement, or equal to one year's Base
Salary at his then-current rate, whichever is greater."
IN WITNESS WHEREOF, the parties have agreed to this Amendment of the
Employment Agreement as of this 16th day of April, 2000.
4
Acsys, Inc. Xxxxx X. Xxxxx
By /s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxx
------------------------ ------------------------
Acsys Resources, Inc.
By /s/ Xxxxx X. Xxxxxx
-------------------------
5
Exhibit A
Acsys Inc. Year 2000
Professional Services Division
Field Operations Bonus Calculations
Executive/Group Director: Can earn 100% of base salary
Eligible Employees: X. Xxxxx, X. Xxxxxx, X. Xxxxxx,
X. Xxxxxxx, X. Xxxxxx
Regional/Area Director: Can earn 50% of base salary
Eligible Employees: X. Xxxxxxxxx, X. Xxxxxxxxx, X. Xxxxx, X. Xxxxxxxx,
X. Xxxxxx, X. Xxxxxx
Quarterly Pay out (50% of the total bonus calculation)
The quarterly bonus, to be paid on April 30, July 31, Oct 31 and Jan 31, will be
based on the following criteria:
Based on meeting budget goals of
Revenue Weighted at 50%
EBITDA Weighted at 30%
Maintaining 95% of A/R less than 120 days old Weighted at 20%
Annual Pay Out (50% of the total bonus calculation)
The annual bonus, to be paid on Jan 31, will be based on the following criteria:
Based on meeting budget goals of
Revenue Weighted at 50%
EBITDA Weighted at 50%
< 105% of budget-0% 110% of budget- 50% 116% of budget- 80%
105% of budget- 25% 111% of budget- 55% 117% of budget- 85%
106% of budget- 30% 112% of budget- 60% 118% of budget- 90%
107% of budget- 35% 113% of budget- 65% 119% of budget- 95%
108% of budget- 40% 114% of budget- 70% 120% of budget- 100%
109% of budget- 45% 115% of budget- 75% Discretionary
