EMPLOYMENT AGREEMENT RE: WOO
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into by and
between Management Alliance Corporation, a Texas corporation (herein referred
to as the "Company"), and James Woo (herein referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive and the Executive
desires 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
Executive Vice 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.
2. TERM. Except in the case of earlier termination as herein
specifically provided, the term of this Agreement shall be for a one (1) year
period beginning on January 1, 1998 and ending December 31, 1998 (such date
being the "Initial Termination Date"). This Agreement shall automatically
renew for an additional one (1) year period unless or until (a) this
Agreement is terminated prior to the Initial Termination Date for some reason
permitted hereunder, or (b) one
of the parties shall give written notice to the other at least ninety (90)
days prior to the Initial Termination Date that the Agreement shall not be
renewed.
3. COMPENSATION. As base compensation for the services of the
Executive during the term of this Agreement, the Company shall pay the
Executive a salary at an annual rate of $96,000.00, plus such additional
compensation, if any, which the Board of Directors of the Company (the
"Board") 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 of the
Company.
In addition to the Executive's base salary, the Executive shall be
entitled to each of the following during the term of this Agreement (at the
Company's expense unless otherwise indicated): (a) the right to participate
in the Executive Bonus Plan, which shall entitle the Executive to such bonus
awards as will be determined by the Board and paid to the Executive by the
Company, (b) health insurance coverage which shall provide for payment of
health, dental and related expenses incurred during the term of this
Agreement with respect to the Executive, the Executive's spouse and the
Executive's children and which shall contain such benefits and options as
shall be made available to other employees of the Company (the parties
acknowledge that the Executive shall be responsible for paying such portion
of this coverage as shall be consistent with Company policy for its employees
in general), (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 any other benefit plans of the Company to the extent
the Board determines the Executive shall be a participant in such plan(s),
(e) the right to all fringe benefits generally made available to other
executives and/or employees of the Company (including, but not by way of
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limitation, disability benefits if and to the extent available) at the
discretion of the Board, (f) such vacation and sick leave as shall be
permitted by the Company's standard policies for other senior executive
employees of the Company, and (g) options to purchase shares of stock of
Diversified Corporate Resources, Inc. ("DCRI"), a Texas corporation, which
owns all of the issued capital stock of the Company, to the extent that the
Board of Directors of DCRI determines that the Executive shall be a
participant in DCRI's stock option plan, including options to purchase up to
10,000 shares of stock of DCRI that have been previously granted to the
Executive.
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 may, from time to
time, reasonably confer upon or impose on the Executive.
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 following events: (i) any act
or omission constituting fraud under the laws of the State of Texas or
the United States of America; or (ii) a finding of probable cause, or
a plea of NOLO CONTENDERE to, a felony or other crime involving moral
turpitude; or (iii) the negligent performance by the Executive of the
responsibilities of his position; or (iv) the failure by the Executive
to adhere to the Company's policies or directives, including those set
forth in its Employee Handbook and Company policy statement relating
to trading in DCRI's securities by the Company's personnel (the
"Insider Trading Policy"); or (v) the Executive's
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engagement in any act of dishonesty or theft within the scope of his
employment that, in the opinion of the Board, is detrimental to the best
interests of the Company; or (vi) the Executive's use and/or distribution
of alcohol or illegal substances while acting within the scope of his
employment; or (vii) the breach of any of the substantive terms of this
Agreement; or (viii) the failure of the Executive to meet the performance
goals for the operations for which the Executive is responsible,
established in the annual budget for the Company presented to and approved
by the Board. The determination by the Board as to the matters covered by
(iii), (iv), (v) or (viii) above shall be conclusive; provided,
however, that the Company will not be entitled to terminate this
Agreement for cause pursuant to (iii), (iv) or (viii) above unless,
prior to such termination, the Executive has received a written
reprimand detailing the acts or omissions constituting such failure to
perform the responsibilities of his position, to adhere to the
Company's policies or to meet his performance goals, except that no
prior reprimand is required with respect to violations of the Insider
Trading Policy.
b. The Company may terminate the Executive as an employee of
the Company at any time during the term of this Agreement, subject to
Paragraph 6 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.
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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 thirty (30) days
after the day on which the Board determines that the Executive is so
disabled and that this Agreement should be terminated by reason of
such disability. Notwithstanding the foregoing, the Executive shall
be notified in writing if the Company determines that the Executive is
disabled due to mental or physical health; in such event, the
Executive shall have the right to contest any determination of
disability by the Company. In the event that the Executive does
contest such determination, such matter shall be resolved by
arbitration pursuant to this Agreement.
6. SEVERANCE AND OTHER PAYMENTS.
a. If the Executive's employment pursuant to this Agreement is
terminated by the Executive, is terminated for "cause" (as herein
defined) or is terminated 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's employment with the Company is terminated
under Paragraph 5(b) of this Agreement, the Company agrees to pay to
the Executive each month an amount equal to the base compensation per
month as follows: (i) if such termination occurs before the Initial
Termination Date, the longer of (x) the period of six (6) months
following the date of termination of the Executive's employment with
the Company or (y) the period from such termination
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to the Initial Termination Date or (ii) if such termination occurs after
the Initial Termination Date, the shorter of (x) the period of six (6)
months following the date of termination of the Executive's employment with
the Company or (y) the period from such termination to December 31,
1999. Notwithstanding the foregoing, the parties acknowledge and
agree that if such termination does occur, the following shall be
applicable: (i) the amount of monthly compensation required to be
paid by the Company to the Executive shall be reduced by the amount of
monthly compensation payable to the Executive by any one or more
entities with which the Executive is employed, and/or the amount of
self-employment income earned by the Executive during the month
involved, and (ii) the Executive shall use reasonable efforts to
secure reasonably comparable employment and/or generate self-employment
income to minimize or eliminate the Company's obligation to pay severance
compensation to the Executive.
c. If the Executive's employment is terminated during the term
of this Agreement, for any reason other than "cause," the Executive
shall be entitled to receive a pro rata 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.
7. WORKING CONDITIONS. The Company will provide the Executive with a
private office and secretarial services.
8. 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
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entertainment, gifts and travel; if any expenses are of a kind or a cost in
excess of the written policies established by the Board, such expenses must
be expressly authorized by the Board. The Company agrees to reimburse the
Executive for all such expenses upon the Executive's presentation of an
itemized account of such expenditures.
9. NONSOLICITATION 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, or
by Company for "cause" (as herein defined), the Executive agrees that the
Executive shall not, for a one (1) year period of time following the date of
termination of his employment, (a) solicit for employment or hire any
individual who was an executive or employee of the Company, or any of its
affiliates, on the date of termination of his employment or at any time
within the twelve (12) months preceding the date of termination of his
employment, or (b) solicit the business of any person or entity who is or was
a customer, client, agent or representative of the Company, or any of its
affiliates, at the date of termination of his employment, or at any time
during the twelve (12) months preceding the date of termination of his
employment. The covenants and agreements set forth in this Paragraph 9 shall
survive the termination of this Agreement.
10. NONCOMPETITION AGREEMENT. The Executive acknowledges that the
special relationship of trust and confidence between himself, the Company,
and its clients, customers, vendors and suppliers creates a high risk and
opportunity for the Executive to misappropriate the relationship and goodwill
existing between the Company and its clients, customers, vendors, and
suppliers. The Executive further acknowledges and agrees that it is fair and
reasonable for the Company to take steps to protect itself from the risk of
such misappropriation. The Executive further acknowledges that prior to and
during his employment with the Company, he will be
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provided with access to the Company's confidential and proprietary
information, that will enable him to benefit from the Company's goodwill and
know-how.
The Executive acknowledges that it would be inherent in the performance
of his duties as a director, officer, employee, agent or consultant of any
person, association, entity or company that competes with the Company to
disclose or use such information, as well as to misappropriate the Company's
goodwill and know-how for the benefit of such other person, association,
entity or company.
The Executive acknowledges that, in exchange for the execution of the
noncompetition restriction set forth below, he has received or will receive
substantial and valuable consideration. The Executive agrees that this
consideration constitutes fair and adequate consideration for the execution
of the noncompetition restriction.
Ancillary to the enforceable promises set forth in this Agreement, the
Executive agrees that during term of this Agreement and for a period of
twelve (12) months after the date of termination of his employment, for
whatever reason, the Executive shall not, without the prior written consent
of the Company, directly or indirectly, whether as a director, officer,
employee, agent, consultant or otherwise, engage in any of the following
activities in competition with the Company in the metropolitan areas (as
defined by the United States Census Bureau) of any city in which the Company
or DCRI maintains a place of business as of the date of termination of his
employment: (i) sell or solicit orders for any product or service for which
the Executive sold or solicited orders, or directed others to sell or solicit
orders, during the term of this Agreement; or (ii) sell, solicit or contact
with a view to selling any such product or service for, from or to any
person, firm or corporation from whom the Executive solicited any order, or
to whom the Executive sold any such
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product or service, or from whom the Executive directed another to solicit
any order or to sell any such product or service, at any time during
Executive's employment with the Company.
The Executive agrees that the noncompetition restriction set forth above
is ancillary to an otherwise enforceable agreement and supported by
independent valuable. The Executive further agrees that the limitations as
to time, geographical area and scope of activity to be restrained by this
restriction are reasonable and acceptable and do not impose any greater
restraint than is reasonably necessary to protect the goodwill and other
business interests of the Company. The Executive further agrees that if, at
some later date, a court of competent jurisdiction determines that the
restriction set forth in this Paragraph does not meet such, this Paragraph
may be reformed by the court and enforced to the maximum extent permitted
under Texas law.
If the Executive is found to have violated any of the provisions of this
Paragraph, the Executive agrees that the restrictive period of each covenant
so violated shall be extended by a period of time equal to the period of such
violation by him. It is the intent of this Paragraph that the running of the
restrictive period of any covenant shall be tolled during any period of
violation of such covenant so that the Company may obtain the full and
reasonable protection for which it contracted and so that Executive may not
profit by his breach.
The Executive's obligations under Paragraph shall survive the
termination of this Agreement and shall not be assignable by Executive.
11. NONDISCLOSURE AGREEMENT. During the term of this Agreement, the
Company will provide to the Executive certain confidential and proprietary
information owned by the Company. The Executive acknowledges that he
occupies or will occupy a position of trust and confidence with the Company,
and that the Company would be irreparably damaged if Executive were to breach
the covenants set forth in this Paragraph. Accordingly, the Executive agrees
that he will
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not, without the prior written consent of the Company, at any time during the
term of this Agreement or any time thereafter, except as may be required by
competent legal authority or as required by the Company to be disclosed in
the course of performing the Executive's duties under this Agreement for the
Company, use or disclose to any person, firm or other legal entity, any
confidential records, secrets or information related to the Company or any
parent, subsidiary or affiliated person or entity (collectively,
"Confidential Information"). Confidential Information shall include, without
limitation, information about the Company's customer lists, product pricing,
data, know-how, processes, ideas, product development, market studies,
computer software and programs, database technologies, strategic planning,
and risk management. The Executive acknowledges and agrees that all
Confidential Information of the Company and/or its affiliates that he has
acquired, or may acquire, were received, or will be received in confidence
and as a fiduciary of the Company. The Executive will exercise utmost
diligence to protect and guard such Confidential Information. The Executive
agrees that he will not, without the express written consent of the Board of
Directors of the Company, take with him upon the termination of this
Agreement any document or paper, or any photocopy or reproduction or
duplication thereof, relating to any Confidential Information.
12. 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.
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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 (except that the Company may assign this Agreement to an
affiliate), 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 are hereby terminated without
obligation for any payments otherwise due thereunder. No waiver or
modification of this Agreement or of any covenant, condition or
limitation herein contained shall be valid, unless in writing and duly
executed by the party to be charged therewith, and no evidence of any
waiver or modification shall be offered or received in evidence of any
proceeding, arbitration, or litigation between the parties hereto
arising out of or affecting this Agreement, or the rights or
obligations of the parties hereunder, unless such waiver or
modification is in writing, duly executed as aforesaid, and the
parties further agree that the provisions of this paragraph may not be
waived except as herein set forth.
c. All agreements and covenants contained herein are severable
and in the event any of them, with the exception of those contained in
Paragraph 1 hereof, shall be held to be invalid, as written pursuant
to the arbitration or judicial
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proceedings provided for in this Agreement, this Agreement shall be
interpreted as if such invalid agreements or covenants were not contained
herein.
d. Any controversy between the parties to this Agreement
involving the construction or application of any of the terms,
covenants, or conditions of this Agreement shall be submitted to
arbitration in Dallas County, Texas, 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 12(d) is invoked, both appoint one person as
an arbitrator to hear and determine the dispute, then the two
arbitrators so chosen shall, within fifteen (15) days, select a third
impartial arbitrator; the majority decision of the arbitrators shall
be final and conclusive upon the parties to this Agreement. Each
party to the arbitration proceedings conducted pursuant to this
Agreement shall bear his or its own expenses, except that the expenses
of the arbitrators shall be borne equally by the Company and the
Executive.
e. 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 non-prevailing party, reasonable attorneys' fees and
expenses incurred in connection with the dispute involved.
f. 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 have executed this Agreement effective
as of January 1, 1998.
COMPANY:
MANAGEMENT ALLIANCE CORPORATION
By: /s/ M. Ted Dillard
-----------------------------------
Name: M. Ted Dillard
---------------------------------
Title: Secretary
--------------------------------
Address: 12801 North Central Expressway
Suite 350
Dallas, Texas 75243
/s/ James Woo
--------------------------------------
James Woo
Address: 5941 Henley
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Plano, Texas 75093
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