CONSULTING AGREEMENT
EXHIBIT 10.1
This CONSULTING AGREEMENT (this “Agreement”) is made and entered into as of July 31,
2009 (the “Effective Date”), by and between Xxxxxxx X. XxXxxxxxxx (“XxXxxxxxxx”)
and Dynamex Inc., a Delaware corporation (the “Company”).
WHEREAS, XxXxxxxxxx has previously served as the Company’s chief executive officer pursuant to
that certain July 23, 2003 Amended and Restated Employment Agreement between the parties (the
“Employment Agreement”); and
WHEREAS, XxXxxxxxxx has resigned as the Company’s chief executive officer but continues to
serve the Company as its non-executive Chairman of the Board of Directors; and
WHEREAS, the Company and XxXxxxxxxx desire to enter into this Agreement to supersede and
replace the Employment Agreement and more accurately reflect XxXxxxxxxx’x continuing role on behalf
of the Company.
In consideration of the terms, conditions, covenants, representations, warranties and promises
contained in this Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. Engagement. The Company hereby engages XxXxxxxxxx, and XxXxxxxxxx accepts such
engagement, upon the terms and conditions set forth herein, for the period beginning on Effective
Date and ending as provided in Section 2.
2. Term. The period of XxXxxxxxxx’x engagement by the Company under this Agreement
shall commence on the Effective Date and shall continue, unless sooner terminated in accordance
with the provisions of this Agreement, for an initial period of one year from the Effective Date;
provided, however, that either party may terminate or amend the provisions of Paragraph 3 hereof,
with at least 90 days prior written notice to the other. If neither party has given notice of
termination at the end of the first yearly anniversary of this Agreement, the Term hereof shall
continue thereafter on a month to month basis.
3. Position and Duties. During the term of this Agreement, XxXxxxxxxx shall serve as
the non-executive Chairman of the Board of Directors (as constituted from time to time, the
“Board”). In addition to those duties specified in the Company’s bylaws to be carried out
by the Company’s Chairman, XxXxxxxxxx shall consult with the Board regarding the strategic
direction of the Company, with additional focus on the Company’s acquisition and franchising
programs. As Chairman of the Board, XxXxxxxxxx will coordinate with the Company’s Chief Executive
Officer regarding the agenda for each meeting of the Board of Directors and shall preside at such
meetings. The Company will continue to nominate XxXxxxxxxx each year during the term of this
Agreement (or any extension thereof) for election to the Board. It is anticipated that XxXxxxxxxx
will devote a material portion of his business time (estimated at 15% to 25%) in fulfilling his
consulting activities for the Company. Any notice of termination or amendment under Section
2, shall specify whether such notice is effective for XxXxxxxxxx’x service as Chairman of the
Board of Directors, his additional consulting duties referenced above, or both.
4. Compensation and Benefits.
(a) Base Salary. The Company shall pay XxXxxxxxxx a base fee (“Base Fee”) at
an annual rate of US$100,000 per year, which may be adjusted in the reasonable good faith judgment
of the Board or its compensation committee (the “Compensation Committee”) based on the
scope of XxXxxxxxxx’x duties. XxXxxxxxxx’x Base Fee shall be paid in equal installments that are
in no event less frequently than monthly.
(b) Expenses. The Company shall promptly reimburse XxXxxxxxxx for all reasonable
business expenses upon reasonable substantiation and documentation in accordance with the Company’s
policies and procedures in effect from time to time.
(c) Benefit Plans. During the term of this Agreement, XxXxxxxxxx shall be entitled to
participate in and to receive benefits under such of the Company’s employee benefit plans, programs
and arrangements that are available to senior executive officers of the Company, as the
Compensation Committee deems appropriate, subject to the eligibility criteria and other terms and
conditions thereof. For such purposes, the Company acknowledges that, as the Company’s Chairman of
the Board, XxXxxxxxxx is deemed to be an employee of the Company.
(d) Stock Option Grant. On the date of this Agreement, the Company shall grant to
XxXxxxxxxx a non-qualified stock option to purchase 10,000 shares of the Company’s common stock.
The option will expire on the tenth anniversary of the date of grant, and the exercise price will
be the average closing price of the Company’s common stock for the five day period beginning on the
third business day following the date of this Agreement. The option will vest in quarterly
installments over the two-year non-competition period described in Section 5(c) below. This
Agreement does not affect or modify any of XxXxxxxxxx stock options which were granted prior to the
date hereof.
(e) Miscellaneous. XxXxxxxxxx shall continue to have use of his business cell phone,
laptop and email address during the Consulting Period.
5. Obligations of XxXxxxxxxx and the Company.
(a) Non-Disparagement. At all times during the term of this Agreement and following
the Effective Date, neither party hereto nor any of such parties’ respective controlled affiliates
shall make or solicit or encourage others to make or solicit directly or indirectly any derogatory
or negative statement or communication about the other party and, in the case of XxXxxxxxxx, any of
the Company’s affiliates or any of the Company’s and such affiliates’ respective businesses,
products, services or activities; provided, however, that such restriction shall
not prohibit truthful testimony compelled by valid legal process. Notwithstanding anything herein
to the contrary, nothing in this Section 5(a) shall prevent any party hereto from
exercising such party’s authority or enforcing such party’s rights or remedies hereunder or that
such party may otherwise be entitled to enforce or assert under any other agreement or applicable
law, or limit such rights or remedies in any way.
(b) Confidential Information. XxXxxxxxxx acknowledges and agrees that, as a result of
his association with the Company he has developed and may further develop, obtain, or learn about
Confidential Information, and the success of the Company and its affiliates depends upon the use
and protection of such information. For purposes of this Agreement, “Confidential
Information” means any proprietary information, trade secrets, inventions (whether or not
patentable or reduced to practice) and all other intellectual property and confidential or
proprietary information in any form or medium (whether merely remembered or embodied in a tangible
or intangible form or medium) whether now or hereafter existing, relating to or arising from the
past, current or potential business, activities and/or operations of the Company or any of its
affiliates. Notwithstanding the foregoing, “Confidential Information” shall not include
such portions of any information that (A) are or become generally known to and available for use by
the public other than as a result of any act or omission by XxXxxxxxxx or otherwise as a result of
XxXxxxxxxx’x breach of any provision of this Agreement or (B) are or become known to XxXxxxxxxx on
a non-confidential basis other than (1) in connection with XxXxxxxxxx’x association with the
Company and its affiliates or (2) in XxXxxxxxxx’x capacity as a member of the Board or as an
officer, director or person acting in a similar capacity of any affiliate of the Company.
(c) Noncompetition. At all times during the term of this Agreement and for a period
of two years thereafter, XxXxxxxxxx shall not, without the prior written consent of the Company,
(i) directly or indirectly, induce or attempt to induce any person employed by the Company or its
subsidiaries on the date of termination of this Agreement to leave the employ of the Company or its
subsidiaries, or hire any such person, or (ii) solicit any customer of the Company or its
subsidiaries, assist any person to do so, or have any financial interest in a person which does so,
if such solicitation could result in the sale of services to such customer and such sale is
competitive with the business of the Company as now carried on and as carried on at the time of
such sale; provided, however, that, for the purposes of this Agreement, ownership of securities
having no more than one percent of the outstanding voting power of any competitor which is listed
on any national securities exchange shall not be deemed to be in violation of this Agreement.
6. Enforcement.
(a) Reliance on Covenants. XxXxxxxxxx acknowledges and agrees that the Company
entered into this Agreement in reliance on the provisions of Section 5, and the enforcement
of the provision of Section 5 is necessary to ensure the preservation, protection and
continuity of the business, trade secrets and other Confidential Information and goodwill of the
Company and its affiliates to the extent and for the periods of time expressly agreed to herein.
XxXxxxxxxx acknowledges that he has carefully read this Agreement and has given careful
consideration to the restraints imposed upon XxXxxxxxxx by this Agreement, and is in full accord as
to their necessity for the reasonable and proper protection of confidential and proprietary
information of the Company and its affiliates now existing or to be developed in the future.
XxXxxxxxxx expressly acknowledges and agrees that each and every restraint imposed by this
Agreement is reasonable with respect to subject matter, time period and geographical area.
(b) Enforcement of Covenants. Notwithstanding any provision to the contrary herein,
the Company may pursue, at its discretion, enforcement of Section 5 in any court of
competent jurisdiction (each, a “Court”).
(c) Interpretation. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein. More specifically, if any Court determines that any of the
covenants set forth in Section 5 are overbroad under applicable law in time, geographical
scope or otherwise, the parties to this Agreement specifically agree and authorize such Court to
rewrite this Agreement to reflect the maximum time, geographical and/or other restrictions
permitted under applicable law to be reasonable and enforceable.
(d) Irreparable Harm. Because XxXxxxxxxx’x services are unique and because XxXxxxxxxx
has and will have intimate knowledge of and access to Confidential Information, the parties hereto
agree that money damages would not be an adequate remedy for any breach of Section 5, and
any breach of the terms of Section 5 would result in irreparable injury and damage to the
Company and its subsidiaries for which the Company and its subsidiaries would have no adequate
remedy at law. Therefore, in the event of a breach or threatened breach of Section 5, the
Company and its subsidiaries and their respective successors and assigns, in addition to any other
rights and remedies existing in their favor at law or in equity, shall be entitled to specific
performance and/or immediate injunctive or other equitable relief from a Court in order to enforce,
or prevent any violations of, the provisions hereof (without posting a bond or other security),
without having to prove damages. The terms of this Section 6 shall not prevent the Company
from pursuing any other available remedies for any breach or threatened breach of this Agreement,
including the recovery of damages from XxXxxxxxxx.
7. Successors; Binding Agreement.
(a) Company’s Successors. No rights or obligations of the Company under this
Agreement may be assigned or transferred except that the Company may assign this Agreement to any
successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company if such successor expressly assumes
and agrees to perform this Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession had taken place. As used in this Agreement,
“Company” shall mean the Company as herein before defined and any successor to its business
and/or assets (by merger, purchase or otherwise) which executes and delivers the agreement provided
for in this Section 7(a) or which otherwise becomes bound by all of the terms and
conditions of this Agreement by operation of law.
(b) XxXxxxxxxx’x Successors. No rights or obligations of XxXxxxxxxx under this
Agreement may be assigned or transferred by XxXxxxxxxx other than his rights to payments or
benefits hereunder, which may be transferred only by will or the laws of descent and distribution.
Upon XxXxxxxxxx’x death, this Agreement and all rights of XxXxxxxxxx hereunder shall inure to
the benefit of and be enforceable by XxXxxxxxxx’x beneficiary or beneficiaries, personal or legal
representatives, or estate, to the extent any such person succeeds to XxXxxxxxxx’x interests under
this Agreement.
8. Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be deemed to have been
duly given when served by facsimile or delivered either personally or by United States certified or
registered mail, return receipt requested, postage prepaid, addressed to the Company at its
principal XxXxxxxxxx offices and/or to XxXxxxxxxx at his address set forth on the payroll records
of the Company, or to such other address as any party may have furnished to the others in writing
in accordance herewith, except that notices of change of address shall be effective only upon
receipt.
9. Waiver; Amendment. No provisions of this Agreement may be amended, modified, or
waived unless such amendment or modification is agreed to in writing signed by XxXxxxxxxx and by a
duly authorized officer of the Company, other than XxXxxxxxxx, with the consent of the Board, and
such waiver is set forth in writing and signed by the party to be charged. No waiver by any party
hereto at any time of any breach by any other party hereto of any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
10. Choice of Law. All questions and disputes regarding this Agreement, including
questions and disputes concerning the construction, validity and interpretation of this Agreement,
shall be governed by and construed in accordance with the domestic laws of the State of Texas,
without giving effect to any choice of law or conflict of law provision (whether of the State of
Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Texas. In furtherance of the foregoing, the internal law of the State of
Texas shall control the interpretation and construction of this Agreement, even though under that
jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other
jurisdiction would ordinarily apply.
11. Validity; Interpretation. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement or any action in any other jurisdiction, but
this Agreement shall be reformed, construed and enforced in such jurisdiction (in accordance, if
applicable, with Section 6). The language in this Agreement has been chosen by the parties
to express their mutual intent, and no rule of strict construction shall be applied against any
party regardless of who may be responsible for any particular language in this Agreement.
12. Counterparts. This Agreement may be executed in one or more counterparts,
including by facsimile or other electronic transmission, each of which shall be deemed to be an
original but all of which together will constitute one and the same instrument.
13. Entire Agreement. Except as otherwise expressly provided herein, this Agreement
(together with the exhibits attached hereto) set forth the entire agreement of the parties hereto
in respect of the subject matter contained herein and supersede all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether oral or written, by
any officer, employee or representative of any party hereto in respect of such subject matter.
14. Withholding. The Company and its subsidiaries shall be entitled to deduct or
withhold from any amounts owing from the Company or any of its subsidiaries to XxXxxxxxxx under any
written agreement or other arrangement between the Company or any of its affiliates, on the one
hand, and XxXxxxxxxx and any of his affiliates, on the other hand, any United States federal, state
or local or non-United States withholding taxes, excise taxes or employment taxes (collectively,
“Taxes”) imposed with respect to XxXxxxxxxx’x compensation or other payments from the
Company or any of its subsidiaries under this Agreement. In the event that the Company or any of
its subsidiaries incorrectly makes or fails to make such deductions or withholdings, then
XxXxxxxxxx shall, within thirty (30) calendar days, reimburse the Company and its subsidiaries for
any amounts paid with respect to any such Taxes. If the Company or any of its subsidiaries
withholds an amount with respect to Taxes that exceeds the Taxes actually imposed, then the Company
or such subsidiary, as applicable, shall, as promptly as practicable, reimburse XxXxxxxxxx for any
such excess.
15. Enforcement. In the event any party resorts to a lawsuit or initiation of
arbitration to enforce this Agreement, the prevailing party shall be entitled to recover the
reasonable costs of pursuing a lawsuit or arbitration, including court costs and reasonable
attorney’s fees.
IN WITNESS WHEREOF, XxXxxxxxxx has hereunto set XxXxxxxxxx’x hand and, pursuant to the
authorization from its board of directors, the Company has caused these presents to be executed in
its name on its behalf, all as of the day and year first above written.
| /s/ Xxxxxxx X. XxXxxxxxxx | ||||
| XXXXXXX X. XXXXXXXXXX | ||||
| DYNAMEX INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Compensation Committee Chairman | |||
