EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") made effective as of August 15, 2000 by
and between Alternative Resources Corporation (the "Company") and Xxxxxx Xxxxxx
(the "Executive").
In consideration of the mutual covenants contained in this Agreement, the
parties hereby agree as follows:
SECTION I
EMPLOYMENT
The Company agrees to the continued employment of the Executive, and the
Executive agrees to be employed by the Company for the Period of Employment as
provided in Section III A. below upon the terms and conditions provided in the
Agreement.
SECTION II
POSITION AND RESPONSIBILITIES
During the Period of Employment, the Executive agrees to serve as Vice
President--Field Operations, and to be responsible for the typical
responsibilities expected of an executive holding such positions and such other
responsibilities consistent with such positions as may be assigned to the
Executive from time to time by the Chief Executive Officer of the Company.
SECTION III
TERMS AND DUTIES
A. PERIOD OF EMPLOYMENT
The term of Executive's employment under this Agreement will commence
as of August 15, 2000 and shall continue through December 31, 2000 subject to
extension or termination as provided in this Agreement (the "Period of
Employment"). The term shall be extended for an additional one-year period as of
December 31, 2000 and as of each December 31 thereafter, unless either party
gives ninety (90) days prior notice of its intent not to extend.
B. DUTIES
During the Period of Employment, the Executive shall devote all of his
business time, attention and skill to the business and affairs of the Company
and its subsidiaries. The Executive may (i) participate in the affairs of any
governmental, educational or other charitable institution, or engage in
professional speaking and writing activities, so long as the Chief Executive
Officer does not determine, in good faith, that such activities unreasonably
interfere with the business of the Company or diminish the Executive's
obligations under the Agreement; or (ii) serve as a member of the board of
directors of other corporations, so long as the Board of Directors of the
Company, in its discretion, specifically approves such service, and in any such
case, the Executive shall be entitled to retain all fees, royalties and other
compensation derived from such activities in addition to the compensation and
other benefits payable to him under the Agreement; and provided further, that
the Executive may invest his personal or family funds in any form or manner he
may choose that will not require any services on his part in the operation of or
the affairs of the companies in which such investments are made. The Executive
will perform faithfully the duties consistent with his position as Vice
President--Field Operations which may be assigned to him from time to time by
the Chief Executive Officer.
SECTION IV
COMPENSATION AND BENEFITS
A. BASE SALARY
During the Period of Employment, the Company agrees to pay the
Executive a base salary ("Base Salary") of no less than One Hundred and Seventy
Five Thousand Dollars ($175,000). Such Base Salary shall be payable according to
the customary payroll practices of the Company but in no event less frequently
than bi-weekly installments. The Executive may be eligible for base salary
increases as indicated by performance and/or market justification, solely at the
discretion of the Chief Executive Officer and as approved by the Board of
Directors.
C. ANNUAL INCENTIVE AWARDS
The Executive will be eligible for an annual incentive compensation
award for the calendar year 2000 and 2001. The terms and conditions of the
incentive award are according to and defined by the normal executive corporate
compensation. Executive incentive plans and individual eligibility for
participation are specifically approved by the Board of Directors of the
Company.
D. OPTIONS
Options previously granted to the Executive, and options that may be
granted to the Executive before or during this period of employment, shall be
governed by the terms and provisions comparable to those applicable to options
granted under the Company's Stock Option Plan. Notwithstanding the foregoing, if
(i) the Period of Employment ends because the Company ends the automatic
extension thereof under Section III A. of this Agreement; (ii) the Company
terminates the employment of the Executive Without Cause as defined in Section
VIII; (iii) the Executive's employment hereunder terminates because of his death
or disability (as defined in Section VI); or (iv) there is a change in control
of the Company, such option shall become fully exercisable and shall remain
exercisable for the remainder of their term.
For purposes of this Agreement, a "change in control" of the Company
shall be deemed to occur in connection with any of the following events with
respect to the Company;
(i) The acquisition by an entity, person or group (including all
affiliates of such entity, person or group) of beneficial ownership, as that
term is defined in Rule 13d-3 under the Securities Exchange Act of 10934 (which
definition shall apply even if the Company is not then subject to such Act), of
capital stock of the Company entitled to exercise more than 30% of the
outstanding voting power of all capital stock of the Company ("Voting Stock");
(ii) The effective time of (i) a merger or consolidation of the Company
with one or more other corporations as a result of which the holders of the
outstanding Voting Stock immediately prior to such merger or consolidation
(other than the surviving or resulting corporation or any affiliate thereof)
hold less than 50% of the Voting Stock of the surviving or resulting
corporation, or (ii) a transfer of more than 50% (in value) of the assets of the
Company other than to a transferee in which the Company owns at least 50% of the
Voting Stock; or
(iii) The election to the Board of Directors of the Company of the
lesser of (i) three directors or (ii) directors constituting a majority of the
number of directors of the Company then in office, without the recommendation of
the existing Board of Directors.
E. ADDITIONAL BENEFITS
The Executive will be entitled to participate in all compensation or employee
benefit plans or programs and receive all benefits and perquisites for which any
salaried executive employees are eligible under any existing or future plan or
program established by the Company for salaried executive employees. The
Executive will participate to the extent permissible under the terms and
provisions of such plans or
programs in accordance with plan or program provisions. These may include group
hospitalization, health, dental care, life or other insurance, tax qualified
pension, savings, thrift and profit sharing plans, termination pay programs,
sick leave plans, travel or accident insurance, short and long term disability
insurance and contingent compensation plans including capital accumulation
programs, restricted stock programs, stock purchase programs and stock options
plans. Nothing in this Agreement will preclude the Company from amending or
terminating any of the plans or programs applicable to salaried executive
employees of the Company. Notwithstanding the foregoing sentence, no such
amendment or termination shall reduce or otherwise adversely affect Executive's
rights under Section IV C. of this Agreement. In addition to the foregoing
benefits, Executive shall be entitled to receive the following:
(i) a paid vacation of four (4) weeks during each twelve (12)
month period during the Period of Employment
SECTION V
BUSINESS EXPENSES
The Company will reimburse the Executive for all reasonable travel and
other expenses incurred by the Executive in connection with the performance of
his duties and responsibilities under this Agreement. Executive must support all
expenditures with customary receipts and expense reports subject to review by
the Company.
SECTION VI
DISABILITY
A. PAYMENTS
Executive's employment hereunder may be terminated by the Company if
(i) Executive becomes physically or mentally incapacitated, (ii) is unable for a
period of one hundred eighty (180) consecutive days to perform his material
duties and responsibilities and (iii) a determination is made regarding
Executive's continued incapacity by a physician appointed by the Company (such
continued incapacity is hereinafter referred to as "disability"). Upon any such
termination for disability, Executive shall be entitled to receive (i) his Base
Salary, as well as the annual incentive award, prorated in each case through the
date on which the Executive is first eligible to receive payment of long term
disability benefits in lieu of Base Salary under the Company's long term
disability benefit plan as then in effect covering the Executive, and (ii) his
accrued benefits under the terms of the plans, policies and procedures of the
Company.
B. ASSISTANCE TO THE COMPANY
During the period the Executive is receiving payments of either regular
compensation or disability insurance benefits described in this Agreement and as
long as he is physically and mentally able to do so, the Executive will furnish
information and assistance to the Company and from time to time will make
himself available to the Company with respect to area and matters in which he
was involved during his employment with the Company.
SECTION VII
DEATH
In the event of the death of the Executive during the Period of Employment, (i)
Executive's estate shall be entitled to receive his Base Salary, as well as the
annual incentive award, prorated in each case through that date of Executive's
death, and (ii) Executive's designated beneficiary or estate, as the case may
be, shall be entitled to his accrued benefits, including, but not limit to, life
insurance proceeds, under the terms of the plans, policies and procedures of the
Company.
SECTION VIII
EFFECT OF TERMINATION OF EMPLOYMENT
A. TERMINATION WITHOUT CAUSE
If the Company terminates Executive's employment Without Cause during
the Term of Employment, as defined in this Agreement, or the Term of Employment
ends because the Company ends the automatic extension thereof under Section III
A. of this Agreement, the Company will pay to the Executive in a lump sum, her
Base Salary for a period of twelve (12) months. Earned but unpaid Base Salary
will be paid in a lump sum at the time of such termination. The Company also
will pay the Executive in a lump sum upon such termination an amount equal to
the prorated portion of the annual incentive award for the year in which the
termination occurred. The benefits and perquisites described in this Agreement
as in effect at the date of termination of employment will be continued for the
then remaining Period of Employment.
B. TERMINATION WITH CAUSE
If the Company terminates Executive With Cause, (i) Executive shall be
entitled to receive his Base Salary prorated through the date of the Executive's
termination, and (ii) Executive shall be entitled to his accrued benefits under
the terms of the plans, policies and procedures of the Company.
C. EFFECT OF CERTAIN TERMINATIONS
Upon termination of the Executive's employment for reasons other than
due to death, disability or pursuant to Paragraph A of this Section, or upon
Executive's resignation, the Period of Employment and the Company's obligation
to make payments under this Agreement will cease as of the date of termination
except as expressly defined in this Agreement. Executive shall have the right to
voluntarily terminate this Agreement, other than for Good Reason or in
conjunction with a Change in Control, upon two weeks' prior notice to the
Company. If Executive voluntarily terminates his employment with the Company,
(i) Executive shall be entitled to receive his Base Salary prorated through the
date of Executive's voluntary termination, and (ii) Executive shall be entitled
to his accrued benefits under the terms of the plans, policies and procedures of
the Company.
D. DEFINITIONS
For this Agreement, the following terms have the following meanings:
(1) Termination "With Cause" means termination of the Executive's
employment by the Company's Chief Executive Officer acting in good faith by
written notice by the Company to the Executive specifying the event relied upon
for such termination, due to the Executive's serious, willful misconduct with
respect to his duties under this Agreement, including, but not limited to,
conviction for a felony or perpetration of a common law fraud, which has
resulted or is likely to result in material economic damage to the Company.
(2) Termination "Without Cause" means termination by the Company of the
Executive's employment other than due to death, disability, or termination With
Cause.
SECTION IX
OTHER DUTIES OF THE EXECUTIVE DURING AND AFTER THE PERIOD OF EMPLOYMENT
A. COOPERATION DURING AND AFTER EMPLOYMENT
The Executive will, with reasonable notice during or after the Period
of Employment, furnish information as may be in his possession and cooperate
with the Company as may reasonably be requested in connection with any claims or
legal actions in which the Company is or may become a party.
B. CONFIDENTIAL INFORMATION
The Executive recognizes and acknowledges that all information
pertaining to the affairs, business, clients, customers or other relationships
of the Company, as hereinafter defined, is confidential and is a unique and
valuable asset of the Company Access to and knowledge of this information are
essential to the performance of the Executive's duties under this Agreement. The
Executive will not during the Period of Employment or after, except to the
extent reasonably necessary in performance of the duties under this Agreement,
give to any person, firm, association, corporation or governmental agency any
information concerning the affairs, business, clients, customers or other
relationships of the Company, except as required by law. The Executive will not
make use of this type of information for his own purposes or for the benefit of
any person or organization other than the Company. The Executive will also use
his best efforts to prevent the disclosure of this information by others. All
records, memoranda, etc. relating to the business of the Company, whether made
by the Executive or otherwise coming into his possession are confidential and
will remain the property of the Company.
C. CERTAIN RESTRICTED ACTIVITIES
During the Period of Employment and for a one (1) year period
thereafter, the Executive will not use his status with the Company to obtain
goods or services from another organization other than in the ordinary course of
business. During the Period of Employment and for a one (1) year period
following termination of the Period of Employment: the Executive will not make
any statements or perform any acts intended to advance the interest of any
existing or prospective competitors of the Company in any way that will injure
the interest of the Company; the Executive, without prior express written
approval by the Board of Directors of the Company, will not directly or
indirectly own or hold any proprietary interest in or be employed by or receive
compensation from any party engaged in the same or any similar business in the
same geographic areas the Company does business; and the Executive, without
express prior written approval from the Board of Directors, will not solicit any
members of the then current customers, clients or suppliers of the Company or
discuss with any employee of the Company information or operation of any
business intended to compete with the Company. For the purposes of the
Agreement, proprietary interest means legal or equitable ownership, whether
through stock holdings or otherwise of a debt or equity interest (including
options, warrants, rights and convertible interest) in a business firm or
entity, or ownership of more than 2% of any class of equity interest in a
publicly-held company. The Executive acknowledges that the covenants contained
herein are reasonable as to geographic and temporal scope. For a twelve (12)
month period after termination of the Period of Employment for any reason, the
Executive will not hire any employee of the Company or solicit, other than by
means of a general solicitation to the public such as a newspaper advertisement,
or encourage any such employee to leave the employ of the Company.
D. REMEDIES
The Executive acknowledges that his breach or threatened or attempted
breach of any provision of Section IX would cause irreparable harm to the
Company not compensable in monetary damages and that the Company shall be
entitled, in addition to all other applicable remedies, to a temporary and
permanent injunction and a decree for specific performance of the terms of
Section IX without being required to prove damages or furnish any bond or other
security. The Executive hereby acknowledges the necessity of protection against
the competition of, and certain other possible adverse actions by, the Executive
and that the nature and scope of such protection has been carefully considered
by the parties. The period provided and the area covered are expressly
represented and agreed to be fair, reasonable and necessary. If, however, any
court or arbitrator determines that the restrictions described herein are not
reasonable, the court or arbitration panel may modify, rewrite or interpret such
restrictions to include as much of their nature and scope as will render them
enforceable.
SECTION X
INDEMNIFICATION, LITIGATION
The Company will indemnify the Executive to the fullest extent
permitted by the laws of the state of incorporation in effect at that time, or
certificate of incorporation and by-laws of the Company whichever affords the
greater protection to the Executive. The Company will use its best efforts to
obtain
and maintain customary directors and officer liability insurance, covering
Executive. The foregoing indemnification shall continue to apply following
termination of the Period of Employment for actions or omissions during the
Period of Employment.
SECTION XI
WITHHOLDING TAXES
The Company may directly or indirectly withhold from any payments under
this Agreement all federal, state, city or other taxes that shall be required
pursuant to any law or governmental regulation.
SECTION XII
EFFECT OF PRIOR AGREEMENTS
This Agreement contains the entire understanding between the Company
and the Executive with respect to the subject matter and supersedes any prior
employment, severance, or other similar agreements between the Company, its
predecessors and its affiliates, and the Executive.
SECTION XIII
MODIFICATION
Subject to Section IV G., this Agreement may not be modified or amended
except in writing signed by the parties. No term or condition of this Agreement
will be deemed to have been waived, except in writing by the party charged with
waiver. A waiver shall operate only as to the specific term or condition waived
and will not constitute a waiver for the future or act on anything other than
that which is specifically waived.
SECTION XIV
GOVERNING LAW; ARBITRATION
This Agreement and its validity, interpretation, performance and
enforcement shall be governed by the laws of the State of Illinois, without
giving effect to the choice of law provisions thereof.
Any dispute among the parties hereto shall be settled by arbitration in
accordance with the then applicable rules of the American Arbitration
Association and judgment upon the award rendered may be entered in any court
having jurisdiction thereof.
SECTION XV
NOTICES
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been made when delivered or
mailed first-class postage prepaid by registered mail, return receipt requested,
or when delivered if by hand, overnight delivery services or confirmed facsimile
transmission to the following:
(a) If to the Company, at
Alternative Resources Corporation
000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chairperson, Governance Committee
of Board of Directors
Or at such other address as may have been furnished to the Executive by the
Company in writing, or
(b) If to the Executive, at:
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Or such other address as may have been furnished to the Company by the Executive
in writing.
SECTION XVI
BINDING AGREEMENT
This Agreement shall be binding on the parties' successors, heirs and assigns.
SECTION XVII
MISCELLANEOUS
A. MULTIPLE COUNTERPARTS.
This Agreement may be executed simultaneously in multiple counterparts
each of the same force and effect.
B. SEVERABILITY
If any phrase, clause or provision of this Agreement is declared
invalid or unenforceable by an arbitrator or court of competent jurisdiction,
such phrase, clause or provision shall be deemed severed from this Agreement,
but will not affect any other provisions of this Agreement, which shall
otherwise remain in full force and effect. In addition, there will be
automatically substituted herein for such severed phrase, clause or provision a
phrase, clause or provision as similar as possible which is valid and
enforceable.
C. HEADINGS
The headings and subheadings of this Agreement are inserted for
convenience of reference only and are not to be considered in construction of
the provisions hereof.
D. CONSTRUCTION
The Company and the Executive acknowledge that this Agreement was the
result of arm's-length negotiations between sophisticated parties each with full
opportunity to consult with and be represented by legal counsel. Each and every
provision of this Agreement shall be construed as though both parties
participated equally in the drafting of same, and any rule of construction that
a document shall be construed against the drafting party shall not be applicable
to this Agreement.
E. SURVIVORSHIP
The provisions of Sections IV-XVII shall survive the termination or
expiration of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
COMPANY
ALTERNATIVE RESOUCES CORPORATION
BY:_____________________________________
Xxxxxxx X. Xxxx, Chief Executive Officer
and President
EXECUTIVE
_________________________________________
Xxxxxx Xxxxxx
