EXHIBIT 10.1
------------
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement ("Agreement") is made and entered into by DA
CONSULTING GROUP, INC., a Texas corporation (hereinafter the "Company") and JOHN
MITCHELL (hereinafter the "Employee").
In consideration of the mutual promises set forth below and other good and
valuable consideration, the receipt and sufficiency of which the parties
acknowledge, the Company and Employee agree as follows:
1. EMPLOYMENT. The Company employs Employee and Employee accepts
----------
employment on the terms and conditions set forth in this Agreement.
2. NATURE OF EMPLOYMENT. Employee shall serve as President and Chief
----------------------
Executive Officer and have such responsibilities and authority consistent with
such position as may from time to time be reasonably assigned by the Board of
Directors of the Company (the "Board"). Employee shall report to the Board.
Employee shall devote his full time and attention and best efforts to perform
successfully his duties and advance the Company's interests. Employee shall
abide by Company policies, procedures, and practices as they may exist and be in
force from time to time.
Employee agrees to execute the attached Non-Disclosure, Assignment of
Developments and Non-Solicitation Agreement and the attached Separation
Agreement.
3. LOCATION OF EMPLOYMENT. Employee will perform his duties primarily
-----------------------
at the Company's offices in London, England; provided, however, that Employee
will travel to the Company's Houston, Texas office on a regular basis, as
reasonably requested by the Company. The Company will indemnify Employee in
full for any additional tax cost incurred if, as a result of the Company's
requirements, Employee becomes subject to United States tax on his world wide
income. Such indemnification shall place Employee in the same net after-tax
position that Employee would have been in if he had not been subject to
applicable United States federal, state and local taxes.
4. COMPENSATION.
------------
(a) Salary. Effective April 4, 2000, compensation for Employee's
------
services under this Agreement initially shall be One Hundred Ninety Five
Thousand Pounds ( 195,000) per year, payable in equal monthly installments in
arrears. The Employee's salary shall be reviewed annually by the Board (or by
the Committee thereof charged with establishing executive compensation) by
January 1 of each year and may be increased in the Board's (or such Committee's)
discretion based on Employee's performance, provided that such salary for any
year shall not be reduced below the salary for the immediately preceding year.
<PAGE>
(b) Benefits.
--------
(i) Employee may participate in any medical, dental,
disability, life insurance, and other employee benefit plans and programs which
may be made available from time to time to other Company employees at Employee's
level; provided, however, that Employee's participation in such benefit plans
and programs is subject to the applicable terms, conditions, and eligibility
requirements of those plans and programs, some of which are within the plan
administrator's discretion, as they may exist from time to time.
(ii) Notwithstanding the preceding subparagraph (i), Employee
shall be provided with (A) life insurance with a death benefit of four times his
annual salary; and (B) a car allowance of 13,200 per year.
(iii) The Company will credit each year an amount equal to
five percent (5%) of Employee's annual salary to a pension fund of Employee's
choice.
(c) Performance Bonus. Employee shall be entitled to an annual
------------------
performance bonus up to an amount determined by the Company which shall be based
on goals set by the Company and communicated to Employee by January 31 of the
calendar year for which the bonus is potentially payable or, for any bonus
payable in 2000, within 60 days of execution of the Agreement. The bonus
opportunity for 2000 is One Hundred Seventeen Thousand Pounds ( 117,000).
Unless otherwise agreed to in writing between the parties, the applicable bonus
period for periods beginning after 2000 shall be the calendar year. The annual
performance bonus shall be paid in a lump sum amount on or before March 31 of
the calendar year following the calendar year for which the bonus was earned.
(d) Reimbursement of Expenses. The Company shall reimburse
---------------------------
Employee for all expenses reasonably incurred by him on behalf of the Company.
In addition, the Company shall reimburse Employee for all expenses incurred by
him for his membership and participation in professional associations,
continuing education, and maintenance of professional licenses.
5. TERM OF EMPLOYMENT. This Agreement is effective April 4, 2000 and
--------------------
may be terminated pursuant to Section 6 (Termination) below.
6. TERMINATION.
-----------
(a) Termination Upon Death or Permanent Disability. In the event
-----------------------------------------------
that Employee dies, this Agreement shall terminate upon the Employee's death.
If the Employee becomes physically or mentally disabled and thereby unable to
perform his duties hereunder for a period of more than ninety (90) consecutive
days or for more than one hundred twenty (120) days, in the aggregate, during
any three hundred sixty-five (365) day period, the Company may terminate this
Agreement. In the event of termination upon death or disability, the Employee,
or his legal representatives, shall be entitled to be paid his salary and
performance bonus earned pro rata to the date of termination.
--- ----
<PAGE>
(b) Termination by the Company for Cause. The Company may
-----------------------------------------
terminate Employee's employment for "Cause." For purposes of this Agreement,
Cause shall mean the Employee (i) has engaged in gross negligence or willful
misconduct in the performance of Employee's duties, (ii) has willfully refused
without proper legal reason to perform Employee's duties and responsibilities,
(iii) has materially breached any material provision of any agreement between
the Company and Employee, (iv) has materially breached any material corporate
policy maintained and established by the Company that is of general
applicability to the Company's executive employees, (v) has willfully engaged in
conduct that Employee knows or should know is materially injurious to the
Company or any of its affiliates, or (vi) has engaged in illegal conduct or any
act of serious dishonesty which adversely affects, or reasonably could in the
future adversely affect, the value, reliability, or performance of Employee in a
material manner; provided, however, that in no event shall a termination of
Employee's employment constitute a termination for Cause unless such termination
is approved by at least two-thirds of the members of the Board after Employee
has been given written notice by the Company of the specific reason for such
termination and an opportunity for Employee, together with Employee's counsel,
to be heard before the Board. Members of the Board may participate in any
hearing that is required pursuant to this Section 6(b) by means of conference
telephone or similar communications equipment by means of which all persons
participating in the hearing can hear and speak to each other; provided,
however, that at least one-half of the members of the Board shall attend the
hearing in person.
In the event of termination for Cause, the Company's obligation to
compensate Employee ceases on the termination date except as to the salary and
the unpaid performance bonus, if any, for the calendar year preceding the
calendar year in which the termination date occurs.
(c) Termination by the Company Without Cause. This Agreement may
-----------------------------------------
be terminated by the Company without Cause upon ninety (90) days' written notice
thereof given to Employee. Upon the delivery of notice of such termination, the
Company may, in its discretion, and notwithstanding any other provision of this
Agreement to the contrary, limit Employee's continuing responsibilities and
access to confidential information, provided that the effective date of
termination shall be a mutually-agreed date, but not earlier than the 90th day
following the Company's delivery of such notice. In the event of termination by
the Company without Cause:
(i) the Company shall continue to pay Employee his then
effective salary hereunder for eighteen (18) months, following the effective
date of termination of employment, including 100% of any bonus paid or payable
to Employee with respect to the calendar year immediately preceding termination,
and continue for such period to provide other benefits as provided for hereunder
on the same basis as in effect before the effective date of termination of
employment, to the extent permitted by the terms of the benefit plans or
arrangements pursuant to which such benefits are provided; and
<PAGE>
(ii) all outstanding stock options held by Employee shall
become fully vested and exercisable.
(d) Voluntary Termination by Employee for Good Reason. Employee
---------------------------------------------------
may at any time voluntarily terminate this Agreement for "Good Reason" upon
thirty (30) days' prior written notice to the Company. For purposes of this
Agreement, Good Reason shall mean the occurrence of any of the following events:
(i) a change materially adverse to the Employee in the Employee's status, title,
position, or responsibilities; (ii) the insolvency or the filing of a petition
for bankruptcy of the Company; (iii) the failure of the Company to obtain an
agreement, satisfactory to the Employee, from any successor or assign of the
Company to assume and agree to perform this Agreement; or (iv) any material
breach by the Company of this Agreement.
In the event of voluntary termination for Good Reason the Company shall
continue to pay Employee his then effective salary and all benefits hereunder
for twelve (12) months, including 100% of any bonus paid or payable to Employee
with respect to the calendar year immediately preceding termination, and all
outstanding stock options held by Employee shall become fully vested and
exercisable.
(e) Voluntary Termination by Employee.
------------------------------------
(i) Termination With One Year's Notice. Employee may
--------------------------------------
terminate this Agreement upon one year's prior written notice to the Company.
Upon the delivery of notice of such termination, the Company may, in its
discretion, and notwithstanding any other provision of this Agreement to the
contrary, limit Employee's continuing responsibilities and access to
confidential information, provided that the effective date of termination shall
be a mutually-agreed date, but not earlier than one year following the
Employee's delivery of such notice. In the event of such a termination the
Company shall continue to pay Employee his then effective salary hereunder for
twelve (12) months, following the effective date of termination of employment,
including 100% of any bonus paid or payable to Employee with respect to the
calendar year immediately preceding termination, and continue for such period to
provide other benefits as provided for hereunder on the same basis as in effect
before the effective date of termination of employment, to the extent permitted
by the terms of the benefit plans or arrangements pursuant to which such
benefits are provided.
If, after written notice of termination has been given pursuant to this Section
6(e)(i) and prior to the termination date, a termination occurs pursuant to
Section 6(a), or the Company becomes entitled to terminate the Agreement
pursuant to Section 6(a) or (b), the provisions of Section 6(a) or (b) shall
apply instead of this Section 6(e)(i).
<PAGE>
(ii) Termination Upon Less than One Year's Notice. Employee
---------------------------------------------
may terminate this Agreement at any time upon delivering ninety (90) days'
written notice of resignation to the Company. In the event of such voluntary
termination, Employee shall be entitled only to his salary and the unpaid
performance bonus, if any, for the calendar year preceding the calendar year in
which the termination date occurs.
7. COVENANT NOT TO COMPETE. Employee acknowledges that by virtue of
--------------------------
his employment relationship, he shall have access to and control of confidential
and proprietary information concerning the Company's business and that the
Company's business depends, to a considerable extent, on the individual skills,
efforts, and leadership of Employee. Accordingly and in consideration of the
Company's commitments to Employee under this Agreement, Employee expressly
covenants and agrees that during the term of this Agreement and for eighteen
(18) months following the termination of his employment (unless such termination
is by the Company without Cause or by the Employee for Good Reason), Employee
will not, without the prior written consent of Company:
(a) on Employee's own or another's behalf, whether as an officer,
director, stockholder, partner, associate, owner, employee, consultant or
otherwise, directly or indirectly:
(i) solicit or do business which is the same, similar to, or
otherwise in competition with the business engaged in by the Company, from or
with persons or entities who are clients or customers of the Company, who were
clients or customers of the Company at any time during the last year of
Employee's employment with the Company, or to whom the Company had made
proposals for business at any time during the last year of Employee's employment
with the Company; or
(ii) offer employment to, or otherwise solicit for
employment, any employee or other person who had been employed by the Company
during the last year of Employee's employment with the Company;
(b) be employed (or otherwise engaged) in a management capacity by
any person or entity that directly competes with the Company.
Employee further acknowledges that the covenants contained in this Section
7 are reasonably necessary to protect the legitimate business interests of the
Company and are reasonable with respect to scope, time, and territory and are
described with sufficient accuracy and definiteness to enable him to understand
the scope of the restrictions imposed on him. The terms and conditions of this
Section 7 shall survive expiration or termination of this Agreement or
Employee's employment and shall not be affected by any change or modification of
this Agreement unless specific reference is made to this Section 7.
<PAGE>
It is agreed that ownership, directly or indirectly, of not more than five
percent (5%) of the issued and outstanding stock of a corporation, the shares of
which are regularly traded on a national securities exchange or in the
over-the-counter market, shall not be deemed to be in violation of this Section
7.
8. REMEDIES. Employee agrees that his breach or violation of Section 7
--------
(Covenant Not to Compete), will result in immediate and irreparable harm to the
Company for which legal remedies would be inadequate. Therefore, in addition to
any legal or other relief to which the Company may be entitled, the Company may
seek legal and equitable relief, including but not limited to, preliminary and
permanent injunctive relief.
9. EMPLOYEE REPRESENTATION. Employee represents and warrants that his
------------------------
employment and obligations under this Agreement will not breach any duty or
obligation he owes to another person or entity.
10. COMPANY REPRESENTATION. Company represents and warrants that it
-----------------------
has no obligation which would prohibit it from entering into this Agreement or
complying with its provisions and that it has the authority to enter into this
Agreement.
11. WAIVER OF BREACH. The Company's or Employee's waiver of any breach
----------------
of a provision of this Agreement shall not waive any subsequent breach by the
other party.
12. ENTIRE AGREEMENT. This Agreement including any schedule, exhibit or
----------------
attachment hereto: (i) supersedes all other understandings and agreements, oral
or written, between the parties with respect to the subject matter of this
Agreement including any schedule, exhibit or attachment hereto; and (ii)
constitutes the sole agreement between the parties with respect to this subject
matter. Each party acknowledges that: (i) no representations, inducements,
promises or agreements, oral or written, have been made by any party or by
anyone acting on behalf of any party, which are not embodied in this Agreement
including any schedule, exhibit or attachment hereto; and (ii) no agreement,
statement or promise not contained in this Agreement shall be valid. No change
or modification of this Agreement shall be valid or binding upon the parties
unless such change or modification is in writing and is signed by the parties.
13. SEVERABILITY. If a court of competent jurisdiction holds that any
------------
provision or sub-part thereof contained in this Agreement is invalid, illegal or
unenforceable, that invalidity, illegality or unenforceability shall not affect
any other provision in this Agreement. Additionally, if any of the provisions,
clauses or phrases in Section 7 (Covenant Not to Compete) are held unenforceable
by a court of competent jurisdiction, then the parties desire that they be
"blue-penciled" or rewritten by the court to the extent necessary to render them
enforceable.
<PAGE>
14. PARTIES BOUND. The terms, provisions, covenants and agreements
--------------
contained in this Agreement shall apply to, be binding upon and inure to the
benefit of the Company's successors and assigns; however the Company may not
assign this Agreement without the Employee's prior written consent.
15. GOVERNING LAW. This Agreement and the employment relationship
--------------
created by it shall be governed by Texas law.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the day
and year written below.
_________________________________ ____________
John Mitchell Date
DA CONSULTING GROUP, INC.
By:______________________________ ____________
<PAGE>
