1
EXHIBIT 10.3
AMENDMENT OF
EMPLOYMENT AGREEMENT
WHEREAS, Acsys, Inc. (the "Company") and Xxxxx X. Xxxxxxxx, Xx. (the
"Executive") have entered into an employment agreement dated August 21, 1998
(the "Employment Agreement");
WHEREAS, the Company, Xxxxxxx, B.V. ("Xxxxxxx"), Platform Purchaser
Inc. ("Purchaser"), Vedior. N.V. and Select Appointments North America Inc. have
entered into an agreement dated April 16, 2000 (the "Merger Agreement")
providing for the merger of Purchaser with and into the Company with the Company
surviving as a wholly owned subsidiary of Xxxxxxx (the "Merger"), and a
condition of the consummation of the Merger pursuant to the Merger Agreement is
that the Executive enter into this amendment;
WHEREAS, subject to the terms of the Merger Agreement, Purchaser is to
purchase Shares pursuant to an Offer if the Minimum Tender Condition is
satisfied, and the date on which such purchase occurs is referred to as the
"Tender Date" for purposes of this amendment (as the terms "Shares," "Offer,"
and "Minimum Tender Condition" are defined in the Merger Agreement);
NOW, THEREFORE, pursuant to Section 4.5 of the Employment Agreement, IT
IS AGREED by and between the parties hereto that, effective as of the Tender
Date, the Employment Agreement is hereby amended in the following particulars;
provided however, that this amendment shall be without effect if the Tender Date
does not occur, or if the Executive's employment with the Company terminates
prior to the Tender Date:
1. By substituting the phrase "the two-year anniversary of the Tender Date
(as defined below)" for the phrase "December 31, 2000" where the latter
phrase appears in Section 1.1 of the Employment Agreement, and by
deleting the second sentence of Section 1.1.
2. By substituting the phrase "Executive Vice President - Finance and
Administration" for the phrase "Vice President - Finance, Chief
Financial Officer" in each place where the latter phrase appears in
Section 1.2 of the Employment Agreement.
3. By substituting the following for Section 1.3 of the Employment
Agreement:
"1.3. Compensation. For services to be rendered by
Executive under this Agreement, Company shall pay Executive an annual
base salary of $240,000. In addition, Executive shall be eligible to
receive bonus compensation. The determination of such bonus amount
shall be at the discretion of the Chief Executive Officer of the
Company. Notwithstanding the foregoing provisions of this Section 1.3,
the Executive shall receive a minimum annual bonus equal to 20% of his
base salary then in effect."
2
4. By adding the following new Section 1.4(d) to the Employment Agreement:
"(d) Acsys, Inc. ("Acsys"), Xxxxxxx B.V. ("Xxxxxxx"),
Platform Purchaser Inc. ("Purchaser"), Vedior N.V. and Select
Appointments North America Inc. have entered into an agreement dated
April 16, 2000 (the "Merger Agreement") providing for the merger of
Purchaser with and into Acsys with Acsys surviving as a wholly owned
subsidiary of Xxxxxxx (the "Merger"). Subject to the terms of the
Merger Agreement, Purchaser is to purchase Shares pursuant to an Offer
if the Minimum Tender Condition is satisfied, and the date on which
such purchase occurs is referred to as the "Tender Date" for purposes
of this Agreement (as the terms "Shares," "Offer," and "Minimum Tender
Condition" are defined in the Merger Agreement). As of the Tender Date,
the Company shall make a lump sum cash payment to the Executive equal
to $535,000, if the Executive is employed by the Company on that date.
As soon as practicable after the two-year anniversary of the Tender
Date, if the Executive is employed by the Company on such two-year
anniversary, the Executive shall be entitled to a second payment of
$535,000."
5. By deleting the following where it appears in Section 2.6 of the
Employment Agreement:
"As additional consideration for Executive's covenants as set forth in
this Article II, the Company shall pay to Executive the amount of
$200,000, payable monthly over the two-year period following the
Executive's termination of employment (the "Covenant Fee"); provided
however, that the Covenant Fee will not be payable if Executive is
terminated for Cause (as defined below) or Executive resigns without
Good Reason (as defined below); and provided further that the
obligation to pay the Covenant Fee shall xxxxx in the event Executive
is found to be in violation of any of the covenants set forth in this
Article II. If at any time prior to a Change in Control, executive
gives written notice of his probable intention to terminate employment
during the first 90 days after such Change in Control, the entire
amount of the Covenant Fee shall be deposited into escrow immediately
prior to the Change in Control. If Executive in fact terminates his
employment during such 90 day period, the escrowed funds will be paid
to Executive over time, as provided in this Section 2.6. If Executive
does not terminate his employment during such 90-day period, without
prejudice to the Company's obligation to pay the Covenant Fee when and
if it later becomes due under Section 2.6. Any interest earned on the
escrowed funds will be paid to the Company."
6. By deleting paragraphs (a), (b), (c), and (d) of Section 3.2 of the
Employment Agreement, and substituting the following for such
paragraphs:
"(a) a material breach by the Company of any material
provision of this Agreement; provided, however that a change in the
Executive's duties, responsibilities, authority, or reporting
relationships shall not constitute a basis for a "Good Reason"
termination unless either (i) such change results in assignment to the
Executive of a position that is at a lower rank than the rank held by
the Executive immediately prior to
3
the change, or (ii) the Executive is assigned tasks that would be
materially inconsistent with those of the position assigned to the
Executive, or the Executive, in any material respect, fails to be given
the authority, power, responsibilities and duties as are inherent in
the position assigned to the Executive and necessary to carry out the
Executive's responsibilities and the duties of the position; or
(b) relocation of Executive out of the Atlanta, Georgia
metropolitan area; or
(c) any termination of the Executive's employment by the
Company other than for Cause, death, or disability."
7. By substituting the following for Section 3.3(a) of the Employment
Agreement:
"(a) Termination Without Cause, Resignation for Good
Reason. If the Executive's employment with the Company terminates at
any time on or after the Tender Date, and prior to the two-year
anniversary of the Tender Date, and any one of the paragraphs (i), (ii)
or (iii) below are applicable to the termination, Executive shall be
entitled to a lump sum severance payment of $535,000:
(i) the Executive resigns for Good Reason;
(ii) the Executive's employment is terminated for
Cause under circumstances described in Section 3.1(c)(vi) (relating to
termination for failure to meet performance expectations), none of the
other circumstances of "Cause" as described in Section 3.1(c)(i)
through (v) are applicable to the Executive, and there has not been
willful and continued dereliction of duties by the Executive that is
not corrected by the Executive within a reasonable period of time after
a written demand for corrective action is delivered to the Executive by
the Company's Chief Executive Officer; or
(iii) the Executive's employment is terminated by the
Company without Cause."
8. The first sentence of Section 3.3(b) of the Employment Agreement is
deleted in its entirety and there is substituted in its place the
following:
"If Executive voluntarily resigns for other than Good Reason, Executive
shall not be entitled to any severance pay."
9. By deleting the following sentence where it appears in Section 3.3(c)
of the Employment Agreement:
"Notwithstanding the foregoing sentence, if termination is for Cause
pursuant to Section 3.1(c)(vi), and is other than pursuant to a Change
in Control, then Executive shall be
4
entitled to severance equal to his Base Salary for the remainder of the
then-current term of this Agreement, or equal to one year's Base Salary
at his then-current rate, whichever is greater."
IN WITNESS WHEREOF, the parties have agreed to this Amendment of the
Employment Agreement as of this 16th day of April, 2000.
Acsys, Inc. Xxxxx X. Xxxxxxxx, Xx.
By /s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxxx, Xx.
---------------------- -------------------------------
