This CONSULTING
AGREEMENT (this “ Agreement ”) is made and
entered into as of July 31, 2009 (the “ Effective
Date ”), by and between Richard K. McClelland (“
McClelland ”) and Dynamex Inc., a Delaware corporation
(the “ Company ”).
WHEREAS,
McClelland has previously served as the Company’s chief
executive officer pursuant to that certain July 23, 2003
Amended and Restated Employment Agreement between the parties (the
“Employment Agreement”); and
WHEREAS,
McClelland has resigned as the Company’s chief executive
officer but continues to serve the Company as its non-executive
Chairman of the Board of Directors; and
WHEREAS, the
Company and McClelland desire to enter into this Agreement to
supersede and replace the Employment Agreement and more accurately
reflect McClelland’s continuing role on behalf of the
Company.
In consideration
of the terms, conditions, covenants, representations, warranties
and promises contained in this Agreement and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
1.
Engagement . The Company hereby engages McClelland, and
McClelland accepts such engagement, upon the terms and conditions
set forth herein, for the period beginning on Effective Date and
ending as provided in Section 2 .
2.
Term . The period of McClelland’s engagement by the
Company under this Agreement shall commence on the Effective Date
and shall continue, unless sooner terminated in accordance with the
provisions of this Agreement, for an initial period of one year
from the Effective Date; provided, however, that either party may
terminate or amend the provisions of Paragraph 3 hereof, with
at least 90 days prior written notice to the other. If neither
party has given notice of termination at the end of the first
yearly anniversary of this Agreement, the Term hereof shall
continue thereafter on a month to month basis.
3.
Position and Duties . During the term of this Agreement,
McClelland shall serve as the non-executive Chairman of the Board
of Directors (as constituted from time to time, the “
Board ”). In addition to those duties specified in the
Company’s bylaws to be carried out by the Company’s
Chairman, McClelland shall consult with the Board regarding the
strategic direction of the Company, with additional focus on the
Company’s acquisition and franchising programs. As Chairman
of the Board, McClelland will coordinate with the Company’s
Chief Executive Officer regarding the agenda for each meeting of
the Board of Directors and shall preside at such meetings. The
Company will continue to nominate McClelland each year during the
term of this Agreement (or any extension thereof) for election to
the Board. It is anticipated that McClelland will devote a material
portion of his business time (estimated at 15% to 25%) in
fulfilling his consulting activities for the Company. Any notice of
termination or amendment under Section
2, shall
specify whether such notice is effective for McClelland’s
service as Chairman of the Board of Directors, his additional
consulting duties referenced above, or both.
4.
Compensation and Benefits .
(a) Base
Salary . The Company shall pay McClelland a base fee (“
Base Fee ”) at an annual rate of US$100,000 per year,
which may be adjusted in the reasonable good faith judgment of the
Board or its compensation committee (the “ Compensation
Committee ”) based on the scope of McClelland’s
duties. McClelland’s Base Fee shall be paid in equal
installments that are in no event less frequently than
monthly.
(b)
Expenses . The Company shall promptly reimburse McClelland
for all reasonable business expenses upon reasonable substantiation
and documentation in accordance with the Company’s policies
and procedures in effect from time to time.
(c)
Benefit Plans . During the term of this Agreement,
McClelland shall be entitled to participate in and to receive
benefits under such of the Company’s employee benefit plans,
programs and arrangements that are available to senior executive
officers of the Company, as the Compensation Committee deems
appropriate, subject to the eligibility criteria and other terms
and conditions thereof. For such purposes, the Company acknowledges
that, as the Company’s Chairman of the Board, McClelland is
deemed to be an employee of the Company.
(d) Stock
Option Grant . On the date of this Agreement, the Company shall
grant to McClelland a non-qualified stock option to purchase 10,000
shares of the Company’s common stock. The option will expire
on the tenth anniversary of the date of grant, and the exercise
price will be the average closing price of the Company’s
common stock for the five day period beginning on the third
business day following the date of this Agreement. The option will
vest in quarterly installments over the two-year non-competition
period described in Section 5(c) below. This Agreement does not
affect or modify any of McClelland stock options which were granted
prior to the date hereof.
(e)
Miscellaneous . McClelland shall continue to have use of his
business cell phone, laptop and email address during the Consulting
Period.
5.
Obligations of McClelland and the Company .
(a)
Non-Disparagement . At all times during the term of this
Agreement and following the Effective Date, neither party hereto
nor any of such parties’ respective controlled affiliates
shall make or solicit or encourage others to make or solicit
directly or indirectly any derogatory or negative statement or
communication about the other party and, in the case of McClelland,
any of the Company’s affiliates or any of the Company’s
and such affiliates’ respective businesses, products,
services or activities; provided , however , that
such restriction shall not prohibit truthful testimony compelled by
valid legal process. Notwithstanding anything herein to the
contrary, nothing in this Section 5(a) shall prevent
any party hereto from exercising such party’s authority or
enforcing such party’s rights or remedies hereunder or that
such party may otherwise be entitled to enforce or assert under any
other agreement or applicable law, or limit such rights or remedies
in any way.
(b)
Confidential Information . McClelland acknowledges and
agrees that, as a result of his association with the Company he has
developed and may further develop, obtain, or learn about
Confidential Information, and the success of the Company and its
affiliates depends upon the use and protection of such information.
For purposes of this Agreement, “ Confidential
Information ” means any proprietary information, trade
secrets, inventions (whether or not patentable or reduced to
practice) and all other intellectual property and confidential or
proprietary information in any form or medium (whether merely
remembered or embodied in a tangible or intangible form or medium)
whether now or hereafter existing, relating to or arising from the
past, current or potential business, activities and/or operations
of the Company or any of its affiliates. Notwithstanding the
foregoing, “ Confidential Information ” shall
not include such portions of any information that (A) are or
become generally known to and available for use by the public other
than as a result of any act or omission by McClelland or otherwise
as a result of McClelland’s breach of any provision of this
Agreement or (B) are or become known to McClelland on a
non-confidential basis other than (1) in connection with
McClelland’s a
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