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EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of December 6,
2000, is by and between Dynamex Inc., a Delaware corporation (the Company"), and
Richard K. McClelland ("Executive"), and amends, restates and supersedes the
Employment Agreement, dated as of May 31, 1995 and as amended to date, by and
between the parties hereto.
The parties hereto agree as follows:
1. Employment.
(a) Company agrees to employ Executive, on the terms and
conditions set forth below. Executive's job title shall be President
and Chief Executive Officer (or such other position as Company and
Executive may mutually agree) and his duties shall include those
customarily performed by a chief executive officer of a corporation,
and performing such other similar services for Company as may be
directed from time to time by the Board of Directors of Company.
Throughout the term of this Agreement, Executive shall be a member of
the Board of Directors of the Company.
(b) Executive agrees during the term of his employment to (i)
devote his full business time (at least 40 hours per week) and his best
efforts, skills and abilities exclusively to the performance of his
duties as stated in this Agreement and to the furtherance of Company's
business; (ii) well and faithfully serve the Company; (iii) use his
best efforts to preserve the business of Company and the goodwill of
all employees, customers, suppliers and other persons having business
relations with Company.
2. Term. The employment of Executive hereunder shall begin on the
date of this Agreement and shall continue until the earliest of:
(a) the date Company terminates it for "just cause" upon three
days written notice,
(b) the death or disability of Executive,
(c) November 30, 2003 (provided, however, that such date shall
be automatically extended for successive one-year renewal terms unless
Company provides written notice to Executive at least 90 days' prior to
November 30, 2003 or the expiration of any such renewal term), or
(d) the date Executive terminates it for any reason upon 90
days written notice (it being understood by the parties that any
resignation by Executive from his employment, unless specifically
requested by Company or because of Company's material breach of its
obligations hereunder, shall be deemed a termination by Executive).
For purposes of this Agreement, Executive's "disability" shall mean any
time Executive is
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substantially unable to perform his duties to the Company on a full time basis
due to injury, illness or disability (physical or mental) (other than by reason
of authorized vacation or leave) for a period in excess of 40 working days in
any six month period, as determined by the Board of Directors of the Company
(the "Board").
For purposes of this Section 2, "just cause" for termination shall
mean:
(a) any material breach of the covenants and obligations of
Executive under this Agreement;
(b) commission of an act of fraud, dishonesty, gross
negligence or willful malfeasance in connection with Executive's duties
and obligations under this Agreement;
(c) the failure or inability for any reason to devote his full
business time to the business of Company (other than failure or
inability caused by Executive's disability);
(d) the material disregard of written instructions, policies
or procedures of the Board of Directors of the Company;
(e) commission of any act involving moral turpitude;
(f) the commission of any act or the suffering by Executive of
any occurrence or a state of facts, which renders Executive incapable
of performing his duties hereunder, or which adversely affects or could
reasonably be expected to adversely affect the Company or the Company's
reputation; or
(g) the adjudication of Executive as a bankrupt or insolvent
or Executive's filing a petition in bankruptcy, reorganization,
insolvency, readjustment of debt or arrangement under any bankruptcy,
insolvency, dissolution, or liquidation law.
Notwithstanding anything to the contrary in this Agreement, the
provisions of Sections 4 through 7 shall survive any termination of Executive's
employment under this Agreement.
3. Compensation.
(a) Base salary. Executive agrees to accept as full
consideration for his employment, the Canadian dollar equivalent of
US$275,000 per year during the term of this Agreement, payable
semi-monthly, subject to all appropriate withholdings. Executive's base
salary may be increased annually in the sole discretion of the Board.
(b) Bonuses. Within 90 days of the conclusion of each fiscal
year of the Company, Executive shall be eligible to receive an annual
bonus from the Company in an amount determined by the Board, which
amount shall not exceed 60% of Executive's base salary for the fiscal
year then ended. Within 30 days of the commencement of each fiscal
year, the Board shall inform Executive of the general criteria that it
will consider in determining Executive's annual bonus for such year,
provided that the Board may consider
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additional or different criteria that it deems relevant to the bonus
determination.
(c) Car allowance. Executive shall receive a car allowance of
C$1,000 per month.
(d) Vacation, medical insurance and fringe benefits. Executive
shall be entitled to four weeks paid vacation per calendar year.
Executive shall be eligible to participate in all benefit plans in
which employees of the Company participate, including without
limitation, those pertaining to life, accident, sickness, medical and
disability insurance, and such other fringe benefits as the Board may,
in its sole discretion, determine. Participation in any such plans is
subject to Executive's satisfaction of any pre-conditions of general
application to the participation in such plans.
(e) Business expenses. Upon proper documentation and
compliance with Company procedures by Executive, Company shall
reimburse Executive for all reasonable out-of-pocket business expenses
incurred by him in connection with his duties on behalf of Company in
accordance with Company policy.
(f) Stock Options. Executive shall be eligible to participate
in the Company's stock option plans. The Board may, in its sole
discretion, grant additional stock options to Executive pursuant to
such plans.
4. Nondisclosure Agreement.
(a) Executive, during the term of employment under this
Agreement, shall have access to and become familiar with various trade
secrets and proprietary and confidential information consisting of, but
not limited to, processes, computer programs, compilations of
information, records, sales procedures, customer requirements, pricing
techniques, customer lists, methods of doing business and other
confidential information (collectively referred to as the "Trade
Secrets"), which are owned by Company and regularly used in the
operation of its business, but in connection with which Company takes
precautions to prevent dissemination to persons other than certain
directors, officers and employees. Executive acknowledges and agrees
that the Trade Secrets (1) are secret and not known in the industry;
(2) are entrusted to Executive after being informed of their
confidential and secret status by Company and because of the fiduciary
position occupied by Executive with Company; (3) have been developed by
Company for and on behalf of Company through substantial expenditures
of time, effort and money and are used in its business; (4) give
Company an advantage over competitors who do not know or use the Trade
Secrets; (5) are of such value and nature as to make it reasonable and
necessary to protect and preserve the confidentiality and secrecy of
the Trade Secrets; and (6) the Trade Secrets are valuable, special and
unique assets of Company, the disclosure of which could cause
substantial injury and loss of profits and goodwill to Company.
(b) Executive shall not use in any way or disclose any of the
Trade Secrets, directly or indirectly, either during the term of this
Agreement or at any time thereafter, except as required in the course
of his employment under this Agreement. All files,
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records, documents, information, data and similar items relating to the
business of Company, whether prepared by Executive or otherwise coming
into his possession, shall remain the exclusive property of Company and
shall not be removed from the premises of Company under any
circumstances without the prior written consent of the Board (except in
the ordinary course of business during Executive's period of active
employment under this Agreement), and in any event shall be promptly
delivered to Company upon termination of Executive's employment.
Executive agrees that upon his receipt of any subpoena, process or
other request to produce or divulge, directly or indirectly, any Trade
Secrets to any entity, agency, tribunal or person, Executive shall
timely notify and promptly hand deliver a copy of the subpoena, process
or other request to the Chief Executive Officer of Company.
5. Inventions. Executive shall promptly disclose, grant and assign to
the Company for its sole use and benefit any and all inventions, improvements,
technical information and suggestions relating in any way to the products of the
Company or any of its affiliates or capable of beneficial use by the Company or
any of its affiliates, which Executive may conceive, develop or acquire during
the term hereof (whether or not during usual working hours), together with all
patent applications, letters patent, copyrights and reissues thereof that may at
any time be granted for or upon any such invention, improvement or technical
information. In connection therewith, Executive shall promptly at all times
during and after the term hereof:
(a) Execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or proper in the
opinion of the Company to vest title to such inventions, improvements,
technical information, patent applications and patents or reissues
thereof in the Company and to enable it to obtain and maintain the
entire right and title thereto throughout the world.
(b) Render to the Company, at its expense, all such assistance
as it may require in the prosecution of applications for said patents
or reissues thereof, in the prosecution or defense of interferences
which may be declared involving any said application or patents, and in
any litigation in which the Company may be involved relating to any
such patents, inventions, improvements or technical information.
6. Nonsolicitation Agreement. Executive acknowledges and agrees that
the training he will receive, the experience he will gain while employed and the
information he will acquire regarding the Trade Secrets will enable him to
injure Company if he should compete with Company in a business that is
competitive with the business conducted or to be conducted by Company. For these
reasons, an in partial consideration for Executive's employment hereunder,
Executive hereby agrees that without the prior written consent of Company,
Executive shall not, directly or indirectly, either as an individual, a partner
or a joint venturer, or in any other capacity, nor shall he suffer or permit any
related person or affiliate to, during the term of his employment with the
Company and, in the event that this Agreement terminates by reason of Sections
2(a) or 2(d), for a period of 24 months thereafter,
(a) solicit any Customer (as hereinafter defined) of the
Company or its subsidiaries, assist any other person to do so, or have
any financial interest in any person
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which does so, if such solicitation could result in the sale of any
services to such Customer and such sale is competitive with the
business of the Company and its subsidiaries as now carried on and as
carried on at the time of such sale; nor
(b) take any action inconsistent with the fiduciary
relationship of an employee to his employer.
As used in this Section 6, the term "Customer" shall mean customers of the
Company and its affiliates and any person or entity whose business the Company
or its affiliates is soliciting at such time.
As used in this Section 6 and in Section 7 of this Agreement, "affiliates" shall
mean persons or entities that directly, or indirectly through one or more
intermediaries, control or are controlled by, or are under common control with,
the Company.
7. Nonemployment Agreement. In partial consideration for Executive's
employment hereunder, Executive covenants and agrees that he will not on his own
behalf or on behalf of any other person, partnership, association, corporation
or other entity, at any time during the term of his employment by the Company
and, in the event that this Agreement terminates by reason of Sections 2(a) or
2(d), for a period of 24 months thereafter,
(a) hire or solicit for employment any person who was employed
by the Company or its affiliates at the time the employment of the
Executive was terminated or within six months thereafter or in any
manner attempt to influence or induce any such person(s) to leave the
employment of Company or its affiliates; nor
(b) use or disclose to any person, partnership, association,
corporation or other entity any information obtained while an employee
of Company concerning the names and addresses of Company's employees.
8. Severability. The parties hereto intend all provisions of Sections 6
and 7 hereof to be enforced to the fullest extent permitted by law. Accordingly,
should a court of competent jurisdiction determine that the scope of any
provision of Sections 6 and 7 hereof is too broad to be enforced as written, the
parties intend that the court reform the provision to such narrower scope as it
determines to be reasonable and enforceable. In addition, however, Executive
agrees that the nonsolicitation agreements, nondisclosure agreements and
nonemployment agreements set forth above each constitute separate agreements
independently supported by good and adequate consideration and shall be
severable from the other provisions of, and shall survive, this Agreement. The
existence of any claim or cause of action of Executive against Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by Company of the covenants and agreements of Executive contained in
the nonsolicitation, nondisclosure or nonemployment agreements. If any provision
of this Agreement is held to be illegal, invalid or unenforceable under present
or future laws effective during the term hereof, such provision shall be fully
severable and this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision never comprised a part of this Agreement; and
the remaining provisions of this Agreement shall remain in full force and effect
and shall not be
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affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement, a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
9. Affiliates. Executive will use his best efforts to ensure that no
relative of his or corporation of which he is an officer, director or
shareholder, or other affiliate of his, shall take any action that Executive
could not take without violating any provision of this Agreement.
10. Remedies. Executive recognizes and acknowledges that the
ascertainment of damages in the event of his breach of any provision of this
Agreement would be difficult, and Executive agrees that Company, in addition to
all other remedies it may have, shall have the right to injunctive relief if
there is such a breach.
11. Acknowledgements. Executive acknowledges and recognizes that the
enforcement of any of the nonsolicitation and nonemployment provisions in this
Agreement by Company will not interfere with Executive's ability to pursue a
proper livelihood. Executive recognizes and agrees that the enforcement of this
Agreement is necessary to ensure the preservation and continuity of the business
and good will of Company. Executive agrees that due to the nature of Company's
business, the nonsolicitation and nonemployment restrictions set forth in
Sections 6 and 7 of this Agreement are reasonable as to time.
12. Notices. Any notices, consents, demands, requests, approvals and
other communications to be given under this Agreement by either party to the
other shall be deemed to have been duly given if given in writing and either
personally delivered or sent by mail, registered or certified, postage prepaid
with return receipt requested, or by recognized next day delivery service,
addressed as follows: (i) if to Company, at its executive offices in Irving,
Texas, or (ii) if to Executive, at his address as set forth on the payroll
records of Company. Notices delivered personally shall be deemed communicated as
of actual receipt; mailed notices shall be deemed communicated as of three days
after mailing.
13. Entire Agreement; Retention Agreement. This Agreement supersedes
any and all other agreements, either oral or written, between the parties hereto
with respect to the subject matter hereof and contains all of the covenants and
agreements between the parties with respect thereto. Notwithstanding the
foregoing, this Agreement shall not supersede the currently existing Retention
Agreement, by and between the Company and Executive. Any amounts payable to
Executive pursuant to the terms of such Retention Agreement upon termination of
the employment of Executive shall serve as a credit against any amounts payable
hereunder in respect of such termination of employment.
14. Modification. No change or modification of this Agreement shall be
valid or binding upon the parties hereto, nor shall any waiver of any term or
condition in the future be so binding, unless such change or modification or
waiver shall be in writing and signed by the parties hereto.
15. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
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16. Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original, but all of which shall constitute one
document.
17. Costs. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
18. Estate. If Executive dies prior to the expiration of the term of
employment, any monies that may be due him from Company under this Agreement as
of the date of his death shall be paid to his estate.
19. Assignment. Company shall have the right to assign this Agreement
to its successors or assigns. The terms "successors" and "assigns" shall include
any person, corporation, partnership or other entity that buys all or
substantially all of Company's assets or all of its stock, or with which Company
merges or consolidates. The rights, duties and benefits to Executive hereunder
are personal to him, and no such right or benefit may be assigned by him.
20. Binding Effect. This Agreement shall be binding upon the parties
hereto, together with their respective executors, administrators, successors,
personal representatives, heirs and permitted assigns.
21. Waiver of Breach. The waiver by Company of a breach of any
provision of this Agreement by Executive shall not operate or be construed as a
waiver of any subsequent breach by Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Dynamex Inc.
By: /s/ STEVE SMILEY
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EXECUTIVE:
/s/ RICHARD K. MCCLELLAND
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Richard K. McClelland
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