FIRST AMENDMENT
TO
EMPLOYMENT AGREEMENT RE: J. XXXXXXX XXXXX
This First Amendment (the "First Amendment") to the Employment Agreement is
executed this _____ day of September, 1998, by and between Diversified Corporate
Resources, Inc. (the "Company"), and J. Xxxxxxx Xxxxx (the "Executive").
WHEREAS, the Company and the Executive entered into that certain
Employment Agreement (the "Employment Agreement") on April 10, 1997, but
effective as of January 1, 1997, to set forth the terms and condition of the
Executive's, employment with the Company; and
WHEREAS, the Board of Directors of the Company has proposed certain
amendments to the Employment Agreement, including an amendment that would
provide that the Executive would be entitled to receive compensation through the
first extension period of the Employment Agreement following a specified change
in control of the Company and the termination of the Executive's employment with
the Company under certain circumstances at such times and in such amounts as
would be paid to the Executive during such extension period had the Executive's
employment not been terminated; and
WHEREAS, the Board has approved this First Amendment, which reflects such
proposed changes; and
WHEREAS, the Compensation Committee of the Board has approved this First
Amendment; and
WHEREAS, the Executive desires to enter into this First Amendment.
NOW, THEREFORE, in consideration of the premises, the Employment Agreement
is amended as follows:
1. Paragraph 2 is amended by adding to the end thereof the
following:
provided, however, in the event of a "Special Change in
Control" of the Company (as hereinafter defined), neither
the Company nor any successor entity shall on or after the
Effective Date of such Special Change in Control be entitled
to give the notice referred to in Section 2(b) of this
Agreement to terminate this Agreement as of December 31,
1999.
2. Paragraph 6b shall be amended by adding the following
after the first sentence thereof:
This entire period of time described in the first sentence
of this Paragraph 6b shall be referred to herein as the
Severance Period. The period of twelve (12) months
following the Termination Date shall be referred to herein
as the Extension Period. Notwithstanding the foregoing, in
the event of a Special Change in Control of the Company (as
hereinafter defined) and if the Executive's employment with
the Company is terminated for any reason other than
Voluntary Termination (as hereinafter defined) or
termination for cause as provided for herein during the
twenty-four (24) month period beginning on the Effective
Date of such Special Change in Control, the payments to the
Executive hereunder with respect to the Extension Period
shall be at such times and in such amounts as would have
been paid to the Executive during the Extension Period had
the Executive's employment not been terminated.
3. Section 6d of the Employment Agreement is amended by adding
the following to the end thereof:
Notwithstanding the foregoing, in the event of a Special
Change in Control of the Company (as hereinafter defined)
and if the Executive's employment with the Company
terminates for any reason other than Voluntary Termination
(as hereinafter defined) or termination for cause as
provided for herein during the twenty-four (24) month period
beginning on the Effective Date of such Special Change in
Control, the Company's obligation to fund the deferred
compensation program shall extend until the expiration of
the Severance Period.
4. The Employment Agreement is amended by adding a new Section
13 and naming it "Certain Definitions" to read as follows:
a. "Special Change in Control" means (i) any person
or entity, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), other than
the Company, a majority-owned subsidiary thereof,
or the Executive and any
affiliate of the Executive, becomes the
beneficial owner (as defined pursuant to
Schedule 13(d) under the Exchange Act) of the
Company's securities having twenty-five percent
(25%) or more of the combined voting power of
the then outstanding securities of the Company
that may be cast for the election of directors
of the Company; or (ii) as the result of, or in
connection with, any cash tender or exchange
offer, merger or other business combination,
sales of assets or contested election, or any
combination of the foregoing transactions, less
than a majority of the combined voting power of
the then outstanding securities of the Company
or any successor corporation or entity entitled
to vote generally in the election of the
directors of the Company or such other
corporation or entity after such transaction are
beneficially owned (as defined pursuant to
Section 13(d) of the Exchange Act) in the
aggregate by the holders of the Company's
securities entitled to vote generally in the
election of directors of the Company immediately
prior to such transaction; or (iii) during any
period of two consecutive years, individuals who
at the beginning of any such period constitute
the Board of Directors of the Company cease for
any reason to constitute at least a majority
thereof, unless the election, or the nomination
for election by the Company's shareholders, of
each director of the Company first elected
during such period was approved by a vote of at
least two-thirds of the directors of the Company
then still in office who were directors of the
Company at the beginning of any such period.
The "Effective Date" of such Special Change in
Control shall be the earlier of the date on
which an event described in (i), (ii), or (iii)
occurs, or if earlier, the date of the occurrence of
(iv) the approval by shareholders of an agreement by
the Company, the consummation of which would result
in an event described in (i), (ii), or (iii), or (v)
the acquisition of beneficial ownership (as defined
pursuant to Section 13(d) of the Exchange
Act), directly or indirectly, by any entity,
person or group (other than the Company, a
majority-owned subsidiary of the Company, or the
Executive and any affiliate of the Executive) of
securities of the Company representing five
percent (5%) or more of the combined voting
power of the Company's outstanding securities,
provided, however, that the events described in
(iv) and (v) will be considered the Effective
Date of a Special Change in Control if they are
followed within six (6) months by an event
described in (i), (ii) or (iii)."
b. "Voluntary Termination" shall mean Executive's
resignation from the Company unless such
resignation is as a direct proximate result of
(i) without Executive's express written consent,
the assignment to Executive of any duties
materially inconsistent with his positions,
duties, responsibilities and status (including his
removal from the Board of Directors) with the
Company on the Effective Date of the Special
Change in Control; (ii) a reduction of Executive's
base compensation and bonus compensation (other
than a reduction in payments under the Company's
incentive bonus program based on a reduction in
net profits of the Company) to an amount that is
greater than ten percent (10%) lower than such
compensation on the Effective Date of the Special
Change in Control; (iii) relocation of Executive's
principal location of work to any location that is
both (x) in excess of fifty (50) miles from the
location of Executive's principal location of work
on the Effective Date of the Special Change in
Control, and (y) in excess of the sum of the
distance from Executive's principal residence on
such Effective Date to the location of the
Executive's principal location of work on such
Effective Date, plus fifty (50) miles;
(iv) failure by the Company to require 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, by
agreement in form and substance reasonably
satisfactory to the Executive, expressly to
assume and agree 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; or (v) any
material breach of this Agreement as in effect
on the Effective Date of the Special Change in
Control by the Company.
5. The effective date of the First Amendment shall be April 30,
1998.
6. Except as amended by the First Amendment, the terms and
condition of the Employment Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be executed this _____ day of September, 1998.
DIVERSIFIED CORPORATE RESOURCES, INC.
By:
Name:
Title:
EXECUTIVE
J. Xxxxxxx Xxxxx
