EXHIBIT 10.5
DATA PROCESSING RESOURCES CORPORATION
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of March
29, 1999, by and between DATA PROCESSING RESOURCES CORPORATION, a California
corporation ("DPRC"), and XXXXXXX X. XXXXXX ("Employee").
1. Employment and Term.
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1.1 DPRC agrees to employ Employee, and Employee agrees to be employed by
DPRC, on the terms and conditions described below.
1.2 This Agreement shall be effective as of March 29, 1999 or such other
date as Employee may commence his employment with DPRC with the
consent of DPRC (the "Effective Date") and shall, unless sooner
terminated pursuant to the terms set forth below, terminate on the
second 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.
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2.1 Employee shall serve as the Vice President, General Counsel and
Secretary 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.
2.2 DPRC agrees that (i) it will not ask or direct Employee to relocate
his residence from Carlsbad, California, and (ii) it will reimburse
Employee for, or pay directly, reasonable costs in connection with
Employee's lodging, for not more than two (2) nights per work week, in
the immediate vicinity of the offices of DPRC's corporate
headquarters.
3. Compensation.
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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
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(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,
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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
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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.
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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
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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
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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
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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
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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.
(d) Employee shall not otherwise commit any act which shall
compromise the confidentiality of any Secrets, including but not
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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
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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,
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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
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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
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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.
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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
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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 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.
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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.
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.
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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) 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 offices of
Vice President, General Counsel and Secretary 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
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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.
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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.
13. Miscellaneous Provisions.
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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
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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.
14. Acknowledgment by Employee. Employee (i) has carefully read and considered
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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:___________________________ ______________________________
Xxxx Xxxxx Xxxxxx Xxxxxxx X. Xxxxxx
Chief Executive Officer
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EXHIBIT A
Compensation of Xxxxxxx X. Xxxxxx
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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 $150,000 per year, paid in at
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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
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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
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BENEFITS: Employee shall be entitled to participate in and receive
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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
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ALLOWANCE: Employee shall be entitled to an automobile allowance of $700
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per month.
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5. BUSINESS
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EXPENDITURES: Employee may be authorized to incur reasonable expenses for
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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
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BONUS: Employee's incentive bonus for each fiscal year shall provide
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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
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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. INDEMNI-
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FICATION: DPRC shall enter into a directors and officers
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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
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OPTIONS: The Board of Directors has approved the grant to Employee of
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a stock option under the Company's 1994 Stock Option Plan to
purchase up to 25,000 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 any future stock option
grants to Employee, shall vest in full following a "change of
control" during the Term. For the purposes of Employee's
stock options, 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
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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
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PLANNING:
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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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