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EXHIBIT 10.4
AMENDMENT OF
EMPLOYMENT AGREEMENT
WHEREAS, ACSYS, Inc. (the "Company") and Xxx Xxxxxxx (the "Executive")
have entered into an employment agreement dated February 7, 2000 (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 13(f) 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 adding the following sentence after the second sentence of Section
1(a) of the Employment Agreement:
"As of the Tender Date (as defined in Section 2(c)) the Executive shall
have the title of Executive Vice President, IT Division of the
Company."
2. By substituting the following for Section 2(b) of the Employment
Agreement:
"(b) Bonus. Executive shall be eligible to receive bonus
compensation as hereinafter set forth. The determination of such bonus
amount and the time of payment of such bonus shall be substantially in
accordance with the description of the determination of such bonus in
accordance with Exhibit A to this Agreement (which relates to the bonus
calculation of certain other employees), which is attached to and forms
a part of this Agreement. The revenue and EBITDA goals for the year
2000 shall be as currently set forth in the budget prepared by the
Company's management for the year 2000. The revenue and EBITDA goals
for the year 2001 shall be established by the Company's management in
accordance with historical practices but shall be subject to approval
by the Company's Board of Directors. In no event shall the annual bonus
be less than $50,000."
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3. By adding the following new Section 2(c) to the Employment Agreement:
"(c) 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 $532,013, 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
$532,013."
4. By adding the following new Section 3(d) to the Employment Agreement:
"The payment to Executive with respect to any Unvested Platform Option
Value of Platform Options (as the terms "Unvested Platform Option
Value" and "Platform Options" are defined in the Merger Agreement)
shall be made as follows: (i) 50% of the Unvested Platform Option Value
of each Platform Option shall be paid in cash in a lump sum on the
Effective Time (as the term "Effective Time" is defined in the Merger
Agreement), and (ii) 50% of the Unvested Platform Option Value of each
Platform Option shall be paid in cash in a lump sum on the two-year
anniversary of the Effective Time."
5. By adding the following at the end of Section 4(a) of the Employment
Agreement:
"Termination under this Section 4(a) shall be deemed termination
without Cause."
6. By substituting the following for Section 4(b) of the Employment
Agreement:
"(b) Termination Without Cause, Resignation for Good
Reason. Company may terminate Executive's employment at any time
without Cause by providing Executive with written notice of the
Termination. 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 $532,013 (but only if
Executive executes a separation agreement including a general release
and reaffirmation of certain covenants in this Agreement in a form
acceptable to Company):
(i) the Executive resigns for Good Reason;
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(ii) the following paragraphs (A), (B), and (C) are
all applicable to the Executive's termination of employment:
(A) the Executive's employment is terminated for Cause
under circumstances described in Section 4(c)(iv)
(relating to failure to perform certain duties),
Section 4(c)(v) (relating to disability), Section
4(c)(viii) (relating to certain other breaches) or
Section 4(c)(ix) (relating to termination for failure
to meet performance expectations);
(B) none of the other circumstances of "Cause" as
described in Section 4.1(c) clauses (i), (ii), (iii),
(vi), or (vii) are applicable to the Executive; and
(C) 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."
7. By deleting the following sentence where it appears in Section 4(c) of
the Employment Agreement:
"If Company terminates Executive's employment for Cause pursuant to
Section 4(c)(ix), Executive shall not be bound by the noncompetition
restriction in Section 7(c) below."
8. By deleting paragraphs (i) and (ii) of Section 4(e) of the Employment
Agreement, and substituting the following for such paragraphs:
"(i) 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 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
(ii) relocation of Executive out of the Atlanta area to which
Executive is currently in the process of locating."
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9. By substituting the following for Section 4(f) of the Employment
Agreement:
"(f) [RESERVED]"
IN WITNESS WHEREOF, the parties have agreed to this Amendment of the
Employment Agreement as of this 16th day of April, 2000.
Acsys, Inc. Xxx Xxxxxxx
By /s/ Xxxxx X. Xxxxxx /s/ Xxx Xxxxxxx
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Exhibit A
Acsys Inc. Year 2000
IT Division
Field Operations Bonus Calculations
Executive/Group Director: Can earn 100% of base salary
Eligible Employees: Executive Director, X. Xxxxx, X. Xxxxxxxx
Regional/Area Director: Can earn 50% of base salary
Eligible Employees:
Quarterly Pay out (50% of the total bonus calculation)
The quarterly bonus, to be paid on April 30, July 31, Oct 31 and Jan 31, will be
based on the following criteria:
Based on meeting budget goals of
Revenue Weighted at 50%
EBITDA Weighted at 30%
Maintaining 95% of A/R less than 120 days old Weighted at 20%
Annual Pay Out (50% of the total bonus calculation)
The annual bonus, to be paid on Jan 31, will be based on the following criteria:
Based on meeting budget goals of
Revenue Weighted at 50%
EBITDA Weighted at 50%
< 105% of budget-0% 110% of budget- 50% 116% of budget- 80%
105% of budget- 25% 111% of budget- 55% 117% of budget- 85%
106% of budget- 30% 112% of budget- 60% 118% of budget- 90%
107% of budget- 35% 113% of budget- 65% 119% of budget- 95%
108% of budget- 40% 114% of budget- 70% 120% of budget- 100%
109% of budget- 45% 115% of budget- 75% Discretionary
