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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
RE: M. TED DILLARD
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and
between Diversified Corporate Resources, Inc., a Texas corporation (herein
referred to as the "Company"), and M. Ted Dillard (herein referred to as the
"Executive").
W I T N E S S E T H:
WHEREAS, the parties hereto previously entered into that certain
Employment Agreement Re: M. Ted Dillard dated as of January 1, 1997 (the "Prior
Agreement"); and
WHEREAS, the Prior Agreement was amended by the certain First Amendment
to Employment Agreement Re: M. Ted Dillard (the "First Amendment"); and
WHEREAS this Agreement constitutes an amendment and restatement of the
Prior Agreement as amended by the First Amendment; and
WHEREAS, the Company desires to continue to employ the Executive and
the Executive desires to continue to be employed by the Company; and
WHEREAS, the purpose of this document is to set forth the terms and
conditions of such employment.
NOW THEREFORE, for and in consideration of the mutual advantages and
benefits accruing respectively to the parties hereto, the mutual promises
hereinafter made and the acts to be performed by the respective parties hereto,
the Company and the Executive do hereby contract and agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive as the
President of the Company, and the Executive hereby accepts such employment, to
perform the duties and render services as herein set forth. Such employment
shall continue during the term of this Agreement.
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2. TERM. Except in the case of earlier termination as herein
specifically provided, the Executive's employment with the Company pursuant to
this Agreement shall be for the period beginning June 15, 2000 and ending
December 31, 2001 (the "Termination Date").
3. BASE COMPENSATION. As base compensation for the services of
Executive during the term hereof, the Company shall pay the Executive a salary
at an annual rate to be fixed from time to time by the Board of Directors of the
Company but in no event less than $210,000.00 plus any additional compensation
which the Board of Directors of the Company may from time to time determine. The
Executive's salary hereunder shall be paid in equal semi-monthly installments
(subject to reduction for such payroll and withholding deductions as may be
required by law), and may be paid, in whole or in part, by one or more of the
subsidiaries (the "Subsidiaries") of the Company.
In addition to the Executive's base salary, the Executive shall be
entitled to each of the following (at the Company's expenses unless otherwise
indicated): (a) the right to receive an annual bonus pursuant to (i) the
Executive Stock Bonus Plan adopted by the Compensation Committee of the Board of
Directors of the Company (the "Compensation Committee") on December 8, 1999 and
(ii) such other bonus plan(s) which the Board of Directors of the Company may
hereafter adopt with respect to the Executive, (b) health insurance coverage now
or hereafter in effect which shall provide for payment of health, dental and
related expenses incurred during the term of this Agreement with respect to the
Executive (including long-term disability coverage paid for the Executive), the
Executive's spouse or the Executive's children, and which shall contain such
benefits and options as shall be made available to other executives of the
Company and/or the Subsidiaries, (c) the right to participate in any and all
401(k) plans and Section 125 plans now in effect or hereafter adopted by the
Company, (d) the right to participate in the Executive Stock Option Plan adopted
by the
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Compensation Committee on December 8, 1999, (e) an automobile allowance of
$800.00 per month, (f) payment or reimbursement of (i) an initiation fee of
approximately $3,400 related to the fee for the Executive to join a country
club selected by the Executive, and (ii) monthly dues payable with respect to
such club membership in the initial amount of $350.00 per month, and (f) the
right to all fringe benefits generally made available to other executives
and/or employees of the Company.
In addition to the foregoing, the Executive shall be entitled to (a)
such vacation leave as shall be permitted by the Company's standard policies,
or (b) if such standard policies provide for a lesser amount of vacation
leave, minimum annual vacation leave of three (3) weeks per year with full
pay, and thirty (30) days per year of sick leave with full pay (this number
of days of sick leave may be extended if the Board of Directors of the
Company approves).
The Executive shall also be entitled to receive such fees and/or
compensation as shall be granted to the Executive by the Board of Directors
of the Company in connection with the Executive serving as a member of the
Board of Directors of the Company, and/or any and all of the subsidiaries of
the Company.
4. DUTIES AND SERVICES. During the term of this Agreement, the
Executive agrees to (a) do his utmost to enhance and develop the best
interests and welfare of the Company, (b) give his best efforts and skill to
advancing and promoting the growth and success of the Company, and (c)
perform such duties or render such services as the Board of Directors of the
Company may, from time to time, reasonably confer upon or impose on the
Executive. It is understood that the Executive shall report directly to the
Chairman of the Board and Chief Executive Officer of the Company.
5. TERMINATION.
a. The Company may terminate the Executive's employment
pursuant to this Agreement at any time for "cause" as herein defined. The term
"cause" shall mean any of the
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following events: (i) the Executive's conviction or plea of guilty to a crime
involving moral turpitude, (ii) any acts of dishonesty or theft on the part
of the Executive which, in the opinion of the Board of Directors of the
Company, is detrimental to the best interests of the Company, and (iii)
intentional and material violation by the Executive of any written policy of
the Board of Directors of the Company which is not corrected within ninety
(90) days after receipt by the Executive of a detailed written explanation
from the Board of Directors of the Company. Any decision by the Board of
Directors of the Company to terminate the Executive for cause must be
approved by the favorable vote of seventy-five percent (75%) of all members
of the Board of Directors of the Company excluding the Executive.
b. The Company may terminate the Executive as an employee
of the Company at any time during the term of this Agreement if a majority of
all of the members of the Board of Directors of the Company approves a
resolution authorizing such action and reflecting that such action is in the
best interests of the Company. However, unless the Executive's employment is
terminated for "cause" (as herein defined), any termination of the
Executive's employment shall not terminate the Company's obligations to pay
to the Executive the severance benefits as hereinafter set forth, or to
comply with the other requirements of this Agreement.
c. The Executive may terminate his employment with the
Company at any time by giving ninety (90) days written notice to the Company.
d. The Executive's employment by the Company shall
automatically terminate on the date of the Executive's death if the Executive
dies during the term of this Agreement.
e. If the Executive is incapacitated by an accident, sickness
or otherwise, so as to render him mentally or physically incapable of performing
the services required of him pursuant to this Agreement, Executive's employment
by the Company shall terminate at such time as the
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Board of Directors of the Company determines (with at least seventy-five
percent of the directors other than the Executive voting in favor) that the
Executive is so disabled and that this Agreement should be terminated by
reason of such disability. Notwithstanding the foregoing, the Executive shall
have the right to contest any determination of disability by the Board of
Directors of the Company. In the event that the Executive does contest such
determination, such matter shall be resolved by arbitration pursuant to
Section 13(c) of this Agreement.
6. SEVERANCE AND OTHER PAYMENTS.
a. If the Executive's employment pursuant to this Agreement
is terminated for "cause" (as herein defined) or due to the death or
disability (as determined pursuant to paragraph 5(e) of this Agreement) of
the Executive, the Company shall not be obligated to pay or provide any
severance compensation or benefits to the Executive.
b. If the Executive ceases to be an employee of the Company
(either during the term of this Agreement or at any time subsequent to the
termination of this Agreement) for any reason other than pursuant to
Paragraphs 5(a), 5(c), 5(d) or 5(e) of this Agreement, the Company agrees to
pay to the Executive an amount equal to the base compensation which would
have been paid to the Executive during the period of time from the date of
the termination of the Executive's employment with the Company for a period
of twelve (12) months following the date the Executive ceases to be an
employee of the Company and the Subsidiaries (such time period is herein
referred to as the "Severance Period"). In addition to the foregoing
severance payment, the Executive and his family shall continue to participate
in the Company's group health plan, at no cost to the Executive, during the
Severance Period. Notwithstanding the foregoing, in the event of a Special
Change in Control of the Company (as hereinafter defined) and if the
Executive's employment with the Company is terminated for any reason other
than Voluntary Termination (as hereinafter defined)
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or termination for cause as provided for herein during the twenty-four (24)
month period beginning on the Effective Date of such Special Change in
Control, (i) the Severance Period shall be extended by six (6) months so that
the Severance Period shall be eighteen (18) months following the date the
Executive ceases to be an employee of the Company and the Subsidiaries (such
extended time period is herein referred to as the "Extended Severance
Period"), and (ii) the payments to the Executive hereunder with respect to
the Extended Severance Period shall be at such times and in such amounts as
would have been paid to the Executive during the Extended Severance Period
had the Executive's employment not been terminated.
c. If the Executive's employment is terminated during the
term of this Agreement, for any reason other than cause, the Executive (i)
shall be entitled to receive a prorata share (based upon the number of months
employed during the calendar year in which employment with the Company is
terminated) of any bonus or incentive compensation which the Executive would
otherwise have been entitled to receive had he remained employed for the
entirety of the calendar year involved, and (ii) shall have twelve (12)
months to exercise any stock options heretofore or hereafter granted to the
Executive by the Board of Directors of the Company.
d. Commencing in June, 2000 and during the time of
Executive's employment with the Company and all of its subsidiaries, the
Company shall fund a deferred compensation program for the Executive in the
amount of $2,500.00 per month. All amounts heretofore and hereafter funded
pursuant to this deferred compensation arrangement shall be paid to the
Executive, at the date of termination of the Executive's employment with the
Company, in the manner anticipated by the deferred compensation program
previously implemented by the Company for the Executive.
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Notwithstanding the foregoing, in the event of a Special Change in
Control of the Company (as hereinafter defined) and if the Executive's
employment with the Company terminates for any reason other than Voluntary
Termination (as hereinafter defined) or termination for cause as provided for
herein during the twenty-four (24) month period beginning on the Effective
Date of such Special Change in Control, the Company's obligation to fund the
deferred compensation program shall extend until the expiration of the
Extended Severance Period.
7. WORKING CONDITIONS. The Company will provide the Executive with a
private office and secretarial services.
8. RELOCATION. In the event that the Board of Directors of the
Company relocates the primary office of the Executive outside of the Dallas,
Texas metropolitan area, the Company shall pay all moving expenses of the
Executive to the place of the new office. Absent the written consent of the
Executive, the Company shall not relocate the primary office of the Executive
to an office/location which is not the general corporate office of the
Company.
9. TRAVEL AND ENTERTAINMENT. The Executive is authorized to incur
reasonable business expenses on behalf of the Company, including, but not by
way of limitation, expenditures of entertainment, gifts and travel; if any
expenses are of a kind or a cost in excess of the written policies
established by the Board of Directors of the Company, such expenses must be
expressly authorized by the Board of Directors of the Company. The Company
agrees to reimburse the Executive for all such expenses upon the Executive's
presentation of an itemized account of such expenditures. In addition to the
foregoing, the Executive is entitled to incur, and to be reimbursed by the
Company, various and sundry fees, costs and expenses (including, but not by
way of limitation, fees and costs involved in attending courses, seminars and
continuing education sessions) in connection with the
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Executive's position with the Company or the Executive continuing to be
licensed in Texas as a certified public accountant, certified management
accountant and a certified financial planner.
10. NON-COMPETITION AGREEMENT. In the event that the termination of
employment of the Executive pursuant to this Agreement is effectuated by the
Executive electing to terminate his employment pursuant to this Agreement,
and subject to the condition that the Company shall pay the severance
compensation as provided in Paragraph 6(b) of this Agreement, the Executive
agrees that the Executive shall not, for a one year period of time following
the date of termination of this Agreement, within Dallas, Dallas County,
Texas or within a radius of fifty (50) miles from any business location of
the Company and its subsidiaries in the continental United States on the
Termination Date, enter into or engage generally in direct competition with
the Company either as an individual on his own or as a partner or joint
venturer, or as an employee or agent for any person, or as an officer,
director, shareholder or otherwise of any entity other than the Company or an
affiliate of the Company.
11. NOTICES. All notices or other instruments or communications
provided for in this Agreement shall be in writing and signed by the party
giving same and shall be deemed properly given if delivered in person,
including delivery by overnight courier, or if sent by registered or
certified United States mail, postage pre-paid, addressed to such party at
the address listed below. Each party may, by notice to the other party,
specify any other address for the receipt of such notices, instruments or
communications. Any notice, instrument or communication sent by telegram
shall be deemed properly given only when received by the person to whom it is
sent.
12. CERTAIN CONDITIONS.
a. "Special Change in Control" means (i) any person or entity,
including a "group" as defined in Section 13(d)(3) of the
Securities Exchange
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Act of 1934, as amended (the "Exchange Act"), other than
the Company, a majority-owned subsidiary thereof, or
Executive and any affiliate of the Executive, becomes the
beneficial owner (as defined pursuant to Schedule 13(d)
under the Exchange Act) of the Company's securities having
twenty-five percent (25%) or more of the combined voting
power of the then outstanding securities of the Company
that may be cast for the election of directors of the
Company, or (ii) as the result of, or in connection with,
any cash tender or exchange offer, merger or other
business combination, sales of assets or contested
election, or any combination of the foregoing
transactions, less than a majority of the combined voting
power of the then outstanding securities of the Company or
any successor corporation or entity entitled to vote
generally in the election of the directors of the Company,
or such other corporation or entity after such
transaction, are beneficially owned (as defined pursuant
to Section 13(d) of the Exchange Act) in the aggregate by
the holders of the Company's securities entitled to vote
generally in the election of directors of the Company
immediately prior to such transaction, or (iii) during any
period of two consecutive years, individuals who at the
beginning of any such period constitute the Board of
Directors of the Company cease for any reason to
constitute at least a majority thereof, unless the
election, or the nomination for election by the Company's
shareholders, of each director of the Company first
elected during such period was approved by a vote of at
least two-thirds of the directors of the Company then
still in office who were directors of the Company at the
beginning of any such period.
b. The "Effective Date" of such Special Change in Control shall
be the earlier of the date on which an event described in
Section 12(a) (i), (ii), or (iii) occurs, or if earlier, the
date of the occurrence of (i) the approval by shareholders of
an agreement by the Company, the consummation of which would
result in an event described in Section 12(a) (i), (ii), or
(iii), or (ii) the acquisition of beneficial ownership (as
defined pursuant to Section 13(d) of the Exchange Act),
directly or indirectly, by any entity, person or group (other
than the Company, a majority-owed subsidiary of the Company,
or the Executive and any affiliate of the Executive) of
securities of the Company representing five percent (5%) or
more of the combined voting power of the Company's outstanding
securities, provided, however, that the events described in
Section 12(b)(i) and (ii) will be considered the Effective
Date of a Special Change in Control if they are followed
within six (6) months by an event described in Section 12(a)
(i), (ii), or (iii).
c. "Voluntary Termination" shall mean Executive's resignation
from the Company unless such resignation is as a direct
proximate result of (i) without Executive's express written
consent, the assignment to
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Executive of any duties materially inconsistent with his
position, duties, responsibilities and status (including
his removal from the Board of Directors) with the Company
on the Effective Date of the Special Change in Control,
(ii) a reduction of Executive's base compensation and
bonus compensation (other than a reduction in payments
under the Company's incentive bonus program based on a
reduction in net profits of the Company) to an amount that
is greater than then percent (10%) lower than such
compensation on the Effective Date of the Special Change
in Control, (iii) relocation of Executive's principal
location of work to any location that is both (A) in
excess of fifty (50) miles from the location of
Executive's principal location of work on the Effective
Date of the Special Change in Control, and (B) in excess
of the sum of the distance from the Executive's principal
residence on such Effective Date to the location of the
Executive's principal location of work on such Effective
Date, plus fifty (50) miles, (iv) failure by the Company
to require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the
Company, by agreement in form and substance reasonably
satisfactory to the Executive, expressly to assume and
agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to
perform this Agreement if no such succession had taken
place, or (v) any material breach of this Agreement as in
effect on the Effective Date of the Special Change in
Control by the Company.
13. MISCELLANEOUS.
a. Subject to the condition that this Agreement is not
assignable by either party without the prior written consent of the other
party, the terms and provisions of this Agreement shall inure to the benefit
of, and shall be binding on, the parties hereto and their respective heirs,
representatives, successors and assigns.
b. This Agreement supersedes all other agreements, either oral
or in writing, between the parties to this Agreement, with respect to the
employment of the Executive by the Company. This Agreement contains the entire
understanding of the parties and all of the covenants and agreement between the
parties with respect to such employment. Any such prior agreements related to
employment of the Executive by the Company are hereby terminated without
obligation
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for any payments due thereunder, except for unpaid obligations which accrued
and become payable prior to the termination of any such agreements.
c. Any controversy between the parties to this Agreement
involving the construction or application of any of the terms, covenants, or
conditions of this Agreement (including, but not by way of limitation, the
determination of any amounts payable under the terms of this Agreement) shall
be submitted to arbitration if either party to this Agreement shall request
arbitration by notice in writing to the other party. In such event, the
parties to this Agreement shall, within thirty (30) days after this Paragraph
13(c) is invoked, both appoint one person as an arbitrator to hear and
determine the dispute, and if such arbitrators shall be unable to agree
within fifteen (15) days after selection of the second of the two, then the
two arbitrators so chosen shall, within fifteen (15) days, select a third
impartial arbitrator whose decision shall be final and conclusive upon the
parties to this Agreement. The decision of the third arbitrator shall be
rendered within fifteen (15) days after selection. The expenses of
arbitration proceedings conducted pursuant to this Agreement shall be borne
by the party incurring the cost; the expenses of a third arbitrator shall be
borne equally by the Company and the Executive.
d. In the event of any litigation between the parties
related to the compliance with the terms and conditions of this Agreement,
the parties hereto acknowledge and agree that (i) such litigation proceedings
must be held in Dallas County, Texas, and (ii) the prevailing party in such
litigation proceedings shall be entitled to recover, from the nonprevailing
party, reasonable attorneys' fees and expenses incurred in connection with
the dispute involved.
e. This Agreement has been made under and shall be governed
by the laws of the State of Texas.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the 15th day of June, 2000, but actually executed this ____ day
of ___________, 2000.
COMPANY:
DIVERSIFIED CORPORATE RESOURCES, INC.
By:
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J. Michael Moore, Chairman of the Board
and Chief Executive Officer
Address: 12801 North Central Expressway
Suite 350
Dallas, TX 75243
EXECUTIVE:
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M. Ted Dillard
Address: 2016 St. Andrews
Richardson, Texas 75082
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