EXHIBIT 10.17
DATA PROCESSING RESOURCES CORPORATION
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("this Agreement") is made effective on May 12,
1998, by and between DATA PROCESSING RESOURCES CORPORATION, a California
corporation ("DPRC"), and Xxxxx X. Xxxxx ("Employee"), with reference to the
following:
A. DPRC wishes to employ Employee, and Employee desires to be so employed,
in the capacity of Vice President and Chief Financial Officer at DPRC's
Corporate office (currently located at 0000 XxxXxxxxx Xxxx.), which employment
is sometimes hereinafter referred to as "the Employment"), at compensation as
detailed on Exhibit A.
B. DPRC and Employee now wish to formalize the terms of the Employment, as
hereinafter provided.
NOW, THEREFORE, in consideration for the promises and obligations set forth
below, DPRC and Employee agree as follows:
1. Employment.
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DPRC agrees to employ, and Employee agrees to be so employed by DPRC on the
terms and conditions described below. Employee agrees that during his/her
employment by DPRC (sometimes referred to in this Agreement as "the Employment
Period"), Employee shall devote his/her full-time efforts to his/her duties as
an Employee of DPRC.
2. Duties and Compensation.
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2.1 Employee agrees to perform any and all duties now or in the future
assigned to Employee by DPRC, in his/her capacity as Vice President and Chief
Financial Officer or otherwise.
2.2 As consideration for said performance of duties and adherence to the
covenants in this Agreement, Employee shall be entitled to the Compensation.
Employee understands and acknowledges that 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/her promises and obligations under this Agreement.
2.2.1 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 benefits plans now in force or
later adopted by DPRC shall be governed solely by the terms of such plans.
3. Covenants of Employee.
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3.1 Employee agrees that during the Employment Period, Employee will 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.
3.2 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 prospective clients of DPRC in the course of
his/her employment that would provide Employee with an unfair competitive
advantage for Employee over DPRC, as compared to a normally competitive
situation, in the event Employee should seek to solicit business from the
Clients and said prospective clients. In recognition of this understanding,
Employee agrees that, upon termination of the Employment Period, he/she will not
engage in unfair competition, as defined below, against DPRC. For the purposes
of this Agreement, the term "unfair competition" shall be construed to include
without limitation the following specific prohibitions:
(a) Employee shall not interfere or attempt to interfere in any way
with any existing relationships of DPRC with the Clients with whom DPRC has
participated in at least one project or placement within the previous two (2)
years, 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 the Employment Period.
(b) For a period of two (2) years following the termination of the
Employment Period, 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 the Employment Period.
(c) For a period of two (2) years following the termination of the
Employment Period, Employee shall not make use of any of his/her personal
relationships or business contacts developed during the Employment Period and
utilized for business purposes, for the benefit of his/herself, or another, in a
competitive manner with respect to the business of DPRC.
(d) For a period of two (2) years following the termination of the
Employment Period, 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 his/her employment or other engagement
with DPRC.
3.3 Employee acknowledges and understands that during the Employment
Period, Employee 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 proprietary material and
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information of or relating to the business of DPRC necessary for the successful
conduct of the DPRC's business. This information includes, but is not limited
to: (a) DPRC's listings of and data regarding the Clients (past and current),
(b) DPRC's information regarding potential customers and clients, (c) data
relating to the personnel, supervisory structure and procedures of the Clients;
(d) specific computer technician staffing needs of the Clients; (e) the
identity, whereabouts, capabilities and availability of contractors in DPRC's
database; (f) DPRC's bidding, billing and pricing practices; (g) the nature and
type of services rendered by DPRC 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"). Employee understands further that the Secrets have
been and will be accumulated, by Employee and other personnel at DPRC, at a
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 to execute DPRC's standard
confidentiality agreement requested from each of its employees, at such time as
he/she shall be requested by DPRC to do so.
3.4 At the time of or before the termination of Employee's employment with
DPRC, Employee agrees to deliver promptly to DPRC all notes, books, electronic
data (regardless of storage media), correspondence and other written and
graphical records (including all copies thereof in Employee's possession or
under Employee's control relating to any business, work, the Clients or any
other aspect of DPRC, including but not limited to all original and copies of
all or any part thereof.
3.5 Employee agrees to comply with DPRC's current 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.
3.6 Employee hereby agrees to indemnify DPRC against any and all joint and
several liability, loss, damage, costs or expense which DPRC may hereafter
incur, suffer or be required to pay by reason of the violation or breach of any
agreement to which Employee was or is bound in connection with Employee's prior
employment.
4. Relief.
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In the event of a breach or threatened breach by Employee of any of the
provisions of this Agreement, Employee agrees that DPRC, in addition to and not
in limitation of any other rights, remedies, or damages available to DPRC at law
or in equity, 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.
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5. Miscellaneous Provisions.
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5.1 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 the 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.
5.2 This Agreement shall be binding upon the heirs, executors,
administrators, and successors-in-interest of the parties hereto.
5.3 This Agreement shall be construed and enforced according to the laws
of the State of California, excluding its choice of law rules.
5.4 This Agreement supersedes all previous correspondence, promises,
representations, and agreements, if any, either written or oral. No provision of
this Agreement may be modified except by a writing signed by both DPRC and
Employee.
5.5 Except as otherwise provided in this Agreement, DPRC and the Employee
hereby consent to the resolution by binding, non-appealable arbitration of all
claims or controversies in any way arising out of, relating to or associated
with the Employee's employment with DPRC or its termination ("Claims"), that
DPRC may have against the Employee or that the Employee may have against DPRC or
against its officers, directors, employees, agents or clients. The Claims
covered by this Agreement include, but are not limited to, Claims for wages or
other compensation due; Claims for breach of any contract or covenant, express
or implied; tort Claims; Claims for discrimination or harassment; Claims for
benefits, including stock options, except as excluded below; and Claims for
violation of any federal, state or other governmental constitution, statute,
ordinance or regulation. This consent to arbitrate, however, shall not apply to,
or cover Claims for workers' compensation benefits; Claims for unemployment
compensation benefits; Claims by DPRC for injunctive and/or other equitable
relief; Claims relating to unfair competition or solicitation and/or the use or
disclosure of trade secrets, confidential information, proprietary information
or other intellectual property rights of DPRC or its clients; and Claims based
upon an employee's pension or other benefit plan, the terms of which contain an
arbitration or other non- judicial dispute resolution procedure, in which case
the provisions of such plan shall apply. Any arbitration required by this
Agreement shall be conducted in Orange County, California in accordance with the
commercial arbitration rules of the American Arbitration Association then
existing, and any award, order or judgment pursuant to such arbitration may be
enforced in any court of competent jurisdiction and the prevailing party shall
be entitled to recover its fees and expenses incurred in connection with such
arbitration. All such arbitration proceedings shall be conducted on a
confidential basis.
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6. Termination of Employment.
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DPRC and Employee each acknowledge and understand that the employment of
Employee by DPRC is at will, and that said employment of Employee shall be
terminable by either DPRC or Employee at any time, without notice. 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 or Employee to terminate said
employment as set forth above. Except as otherwise agreed in writing or as
otherwise provided by this Agreement, upon termination of employment neither
DPRC nor Employee shall have any further obligation to each other by way of
compensation or otherwise.
7. Acknowledgment by Employee.
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Employee has carefully read and considered the provisions of this Agreement
and agrees that all of the above-stated restrictions, obligations and promises
are fair and reasonable and reasonably required for the protection of the
interests of DPRC. Employee further acknowledges that the goodwill and value of
DPRC is enhanced by these provisions and that said enhancement is desired by
Employee. Finally, Employee indicates his/her acceptance of this Agreement by
signing and returning the enclosed copy of the Agreement where indicated below.
"DPRC" "EMPLOYEE"
DATA PROCESSING
RESOURCES CORPORATION,
a California corporation
By:/s/ Xxxxxx Xxxxxxx /s/ Xxxxx X. Xxxxx
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Xxxxxx Xxxxxxx Xxxxx X. Xxxxx
Vice President, Corporate Services
Dated: May 12, 1998 Dated: May 12, 1998
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EXHIBIT A
COMPENSATION PLAN FOR XXXXX X. XXXXX (EMPLOYEE)
Base Compensation:
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Employee will be paid an annual base salary of $150,000. to be paid bi-
weekly and subject to customary withholding of payroll taxes. Base salary will
be reviewed in February, 1999, for possible annualized merit increase to be
effective March 1, 1999.
Bonus:
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Employee will be eligible for an annual bonus based on criterion and
performance standards to be established by Xxxxxxx X. Xxxxxxx in accordance with
the Company's regular practices. Bonus will be 25% of salary (annualized) at
target, with a minimum bonus of 10% and a maximum bonus of 50% of annual base
salary.
Term:
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One year beginning on or before June 1, 1998.
Incentive Stock Options:
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DPRC will grant Employee options to purchase 30,000 shares of Company
stock, subject to Board approval, at closing market price the day prior to Board
approval. Employee will have the opportunity to be granted options on an
additional 20,000 shares of Company stock, subject to Board approval, based upon
the completion of mutually determined management objectives. Options shall vest
over four years from issue date, with 25% vesting after one year, and one-
twelfth of the remainder vesting in each of the following twelve quarters.
Severance:
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DPRC and Employee acknowledge that employment is at will and may be
terminated by DPRC or Employee with or without cause and with or without notice.
However, should DPRC terminate employment without cause, DPRC will continue
Employee salary and benefits for six months, and will pay the Bonus described in
Paragraph 2 prorated to date of termination. This provision will survive the
expiration of this Agreement.
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ALL COMPENSATION PLANS ARE SUBJECT TO CHANGE BY MANAGEMENT.
AGREED AND ACCEPTED:
/s/ Xxxxx X. Xxxxx May 12, 1998
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Xxxxx X. Xxxxx (date)
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