**Exhibit 10.1**

 

**EMPLOYMENT AGREEMENT**

 

AGREEMENT made as of the 19th day of August, 2003, by and betweenComputer Horizons Corp., a New York corporation with offices at 49 OldBloomfield Avenue, Mountain Lakes, New Jersey 07046 (hereinafter called the“Company”), and Kristin R. Evins hereinafter called the “Executive”).

 

WITNESSETH:

 

WHEREAS, the Executive has been employed as Corporate controller of theCompany at various times since her initial employment with the Company onOctober 25, 1999; and

 

WHEREAS, the Company desires to continue the employment the Executiveas Corporate Controller of the Company and the Executive is willing to servethe Company in such capacity; and

 

WHEREAS, the Company and the Executive desire to set forth the termsand conditions of such employment.

 

NOW THEREFORE, in consideration of the foregoing premises and of themutual covenants and agreements herein contained, the Company and the Executiveagree as follows:

 

1.                                       Employment.  The Company hereby agrees to continue to employthe Executive, and the Executive agrees to continue to be employed by theCompany, on the terms and conditions herein contained.

 

2.                                       Term.  Except as otherwise provided in thisAgreement, the Executive shall be employed under this Agreement for a one yearperiod commencing on the date hereof (the “Employment Term”).  In the event that the Company does notintend to renew the Executive’s employment at the end of this Employment Term,the Company shall notify the Executive of this in writing at least three monthsprior to the expiration of this Employment Term.

 

3.                                       Duties.  The Executive shall serve as CorporateController for the company.  In suchcapacity the Executive shall report to the Chief Financial Officer of theCompany or his designee, and shall perform such duties and functions,consistent with her status as a senior executive of the Company, as may beassigned by the Chief Executive Officer or his designee.  During the Employment Term, the Executiveshall devote substantially all of her business time and her best efforts,energies, skills and attention to the business and affairs of the Company.  The foregoing shall not limit theExecutive’s rights to be involved in civic or charitable 

 

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activities andmanage her own personal investments, provided that such activities do notmaterially interfere with her providing of her services hereunder.

 

4.                                       Salary andBonus.

 

(a)  During the Employment Term,the Company shall pay the Executive, in accordance with its normal payrollpractices and subject to required withholding, a base salary at the rate of$100,000 per annum.  The base salarypayable to the Executive hereunder may be increased, but not decreased, fromtime to time, in the sole discretion of the Chief Executive Officer, upon therecommendation of the Chief Financial Officer. (The base salary, as it may be increased from time to time, ishereinafter referred to as the “Base Salary”).

 

(b)  During the Employment Term,the Executive shall be entitled to receive, in addition to the Base Salary,such additional compensation, if any, as the Chief Executive Officer may, inhis sole discretion, upon the recommendation of the Chief Financial Officer,award the Executive.  Appended hereto isExhibit A describing the Executive’s 2003 Compensation Plan.

 

5.                                       OtherCompensation and Benefits.  Duringthe Employment Term, the Executive shall be entitled to:

 

(a)                                  participatein all benefit, pension, retirement, deferred compensation, savings, welfareand other employee benefit plans and policies in which members of the Company’ssenior management generally are entitled to participate (collectively, the“Benefit Plans”), in accordance with their respective terms as in effect fromtime to time;

 

(b)                                 receiptof all fringe benefits and perquisites maintained by the Company from time totime for members of senior management generally, in accordance with thepolicies of the Company with regard to such benefits and perquisites as ineffect from time to time;

 

(c)                                  vacationeach year in accordance with the Company’s policies for members of seniormanagement generally as in effect from time to time;

 

(d)                                 suchother compensation, if any, as the Company may, in its sole discretion, awardto the Executive.

 

6.                                       DeathPrior to Termination of Employment. If the Executive shall die during the Employment Term, the Company shallhave no liability or further obligation except as follows:

 

(a)                                  TheCompany shall pay the Executive’s estate or designated beneficiaries, asapplicable, when otherwise due, any unpaid Base Salary for the period prior tothe Executive’s death, any declared or awarded but unpaid bonuses, whetherpursuant to any bonus plan or otherwise, any unpaid amounts due under anyincentive plan in accordance with its terms, and any other unpaid amounts duethe Executive under any other Benefit Plans in accordance with the terms ofsuch Benefit Plans (collectively, the “Entitlements”).

 

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(b)                                 TheExecutive’s estate or designated beneficiaries, as applicable, shall have suchrights, if any, under the Benefit Plans and all other employee benefit, fringebenefit or incentive plans maintained or offered by the Company as may beprovided in such plans and any grants to the Executive thereunder in accordancewith their respective terms (collectively, the “Rights”).

 

7.                                       TerminationDue to Disability.  If the Executiveshall become physically or mentally incapable of performing her duties asprovided in Section 3 of this Agreement and such incapacity shall last fora period of at least one hundred eighty (180) consecutive days, the Companymay, at its election any time thereafter while the Executive remains incapableof performing her duties hereunder, terminate the Executive’s employmenthereunder, effective immediately, by giving the Executive written notice ofsuch termination.  In such event, theCompany shall have no other obligation to the Executive or her dependentshereunder other than the obligation to pay or provide the Entitlements and theRights.

 

8.                                       Terminationfor Cause.  The Company mayterminate the Executive’s employment hereunder for Cause by giving theExecutive ten days’ written notice of such termination.  For purposes of this Agreement, Cause shallmean: (a) the Executive’s embezzlement, willful breach of fiduciary duty orfraud with regard to the Company or any of its assets for businesses, (b) theExecutive’s conviction of, or pleading of nolocontendere withregard to, a felony (other than a traffic violation) or any other crimeinvolving moral turpitude with regard to the Company or any of its assets orbusinesses, or (c) any other breach by the Executive of a material provision ofthis Agreement that remains uncured for thirty (30) days after written noticethereof is given to the Executive.  Insuch event, the Company shall have no obligation to the Executive or herdependents other than to pay, when otherwise due, any unpaid Base Salary forthe period prior to such termination and pay or provide the Rights.  In addition, the Company shall be entitledto exercise all rights and remedies against the Executive that it may haveunder applicable law.

 

9.                                       Terminationfor Good Reason.  The Executive mayterminate her employment hereunder for Good Reason upon written notice thereofto the Company.  For purposes of thisAgreement, “Good Reason” shall mean the occurrence or failure to cause theoccurrence (as applicable) of any of the following events without theExecutive’s express prior written consent: (a) any material demotion of theExecutive, any material reduction in the Executive’s authority orresponsibility or any other material change in the terms of the Executive’semployment which is inconsistent with Section 3 hereof; (b) the failure ofany successor or assign of the Company (whether direct or indirect, bypurchase, merger, consolidation or otherwise) to assume specifically theobligations of the Company hereunder in accordance with Section 17 of thisAgreement; (c) any breach by the company of any material provision of thisAgreement that is not cured by the Company within 30 days after written noticethereof from the Executive; or (d) if a Change of Control has occurred, either(i) assuming that the Company’s finances permit cash bonuses to be paid to anyexecutive, the failure to provide the Executive with a cash bonus for eachfiscal year of the Company ending during the Employment Term and after theChange of Control at least equal to the highest bonus earned by, or awarded to,the Executive in respect of any fiscal year of the Company ending prior to the 

 

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Change of Control or, ifhigher, the fiscal year in which such Change of Control occurs, or (ii) thefailure by the Company to continue in effect any Benefit Plan in which theExecutive or any of her dependents is participating immediately prior to suchChange of Control or plans or arrangements that in the aggregate provided theExecutive with substantially similar benefits, or the taking of any action bythe Company that would adversely affect the Executive’s or her dependent’sparticipation in, or reduce the Executive’s or her dependent’s benefits under,any of such Benefit Plans or arrangements or the replacements thereof,providing that the foregoing shall not limit the Company’s right to make changesin such plans to comply with applicable laws or otherwise, provided that theCompany shall otherwise compensate the Executive of any loss (including but notlimited to tax benefits) to the Executive as a result of such changes.

 

10.                                 Consequencesof Termination of Employment by the Executive for Good Reason or by the CompanyWithout Cause.  Subject toSection 12 hereof, in the event the Executive terminates his employmentfor Good Reason pursuant to Section 9 hereof or the Company terminates theExecutive’s employment other than for Cause or Disability, then the Companyshall be deemed to have breached this Agreement, and the Executive shall beentitled to exercise all rights and remedies that she may have hereunder andunder applicable law.  Without limitedthe generality of the preceding sentence, the Company shall in any event pay tothe Executive, the following: (a) the Separation Rights as described inSection 12 hereof; (b) the Entitlements, and (c) the Rights, all withinfive (5) days of the date of termination of employment.

 

11.                                 Consequencesof Termination of Employment by the Executive without Good Reason.  If Executive’s employment hereunder isterminated by the Executive without Good Reason, the Company shall have noother obligations to the Executive hereunder other than the obligation to payor provide the Entitlements and the Rights.

 

12.                                 Changeof Control.

 

(a) Subject to Subsection 12(b) hereof, and only if, a change ofControl of the Company shall occur and either (i) the Executive continues to beemployed by the Company through the end of the Employment Term or (ii) aftersuch Change of Control the Executive terminates her employment for Good Reasonor the Company terminates the Executive’s employment other than for Cause orDisability, then the Executive shall be entitled to receive from the Company(without limiting any additional rights that she may have under applicable lawin the case of termination prior to the expiration of the Employment Term),within five (5) days after the expiration of the Employment Term (whether ornot the Executive is then employed by the Company) or the termination of theExecutive’s employment (as applicable), a lump sum payment equal to any sumremaining on the term of the then current employment contract, but not lessthan one year of the executive’s base salary (the “Separation Rights”).  The Company shall also provide theRights.  In the event that the change ofcontrol occurs coterminous with the notice of contract renewal, and theacquiring entity gives timely notice of non-renewal, then the Executive shallbe entitled to the payment of twelve months severance commencing uponexpiration of the employment contract, in addition to the Entitlements and theRights as noted above.

 

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(b)  Notwithstanding anythingelse herein, to the extent the Executive would be subject to the excise taxunder Section 4999 of the Internal Revenue Code of 1986, as amended (the“Code”), on the amounts in Section 2(a) above and such other amounts orbenefits he received from the Company and required to be included in thecalculation of parachute payments for purposes of Sections 280G and 4999 of theCode, the amounts provided under this Agreement shall be automatically reducedto an amount one dollar less than the amount that, when combined with suchother amounts and benefits required to be so included, would subject theExecutive to the excise tax under Section 4999 of the Code if, and onlyif, the reduced amount received by the Executive would be greater than theunreduced amount to be received by the Executive minus the excise tax payableunder Section 4999 of the Code on such amount and the other amounts andbenefits received by the Executive and required to be included in the calculationof a parachute payment for purposes of Section 280G and 4999 of the Code.

 

(c)  For purposes of thisAgreement, a “Change of Control” shall be deemed to have occurred if: (i) anyperson (as defined in Section 3(a)(9) of the Securities Exchange Act of1934, as amended (the “Exchange Act”), and as used in Section 13(d) and14(d) thereof), excluding the Company, any Subsidiary and any employee benefitplan sponsored or maintained by the Company or any Subsidiary (including anytrustee of any such plan acting in his capacity as trustee), but including a“group” as defined in Section 13(d)(3) of the Exchange Act, becomes thebeneficial owner of shares of the Company having at least 20% of the totalnumber of votes that may be cast for the election of directors of the Company;(ii) the shareholders of the Company shall approve any merger or other businesscombination of the Company, sale of all or substantially all of the Company’sassets or combination of the foregoing transactions (a “Transaction”), otherthan a Transaction involving only the Company and one or more of itsSubsidiaries, or a Transaction immediately following which the shareholders ofthe Company immediately prior to the Transaction continue to have a majority ofthe voting power in the resulting entity (excluding for this purpose anyshareholder owning directly or indirectly more than 10% of the shares of theother company involved in the Transaction), or (iii) within any 24 month periodbeginning on or after the date hereof, the persons who were directors of theCompany immediately before the beginning of such period (the “IncumbentDirectors”) shall be deemed to be an Incumbent Director if such director waselected to the Board by, or on the recommendation of or with the approval of,at least two-thirds of the directors who then qualified as Incumbent Directorseither actually or by prior operation of this Section 12(b) unless suchelection, recommendation or approval was the result of an actual or threatenedelection contest of the type contemplated by Regulation 14a-11 promulgatedunder the Exchange Act or any successor provision.  Notwithstanding the foregoing, no Change of Control of theCompany shall be deemed to have occurred for purposes of this Agreement byreason of any actions or events in which the Executive participates in acapacity other than in his capacity as an executive or director of the Company,provided that the Executive’s voting or tendering, exchanging or otherwisedisposing of any or all his shares of the Company’s capital stock shall not bedeemed participation.  For purposes ofthis Section 12(b), “Subsidiary” shall mean any 

 

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entity in which the Companyowns, directly or indirectly, at least 50% of the outstanding securitiesgenerally entitled to vote for the election of directors.

 

13.                                 Non-Competition;Confidential Information.

 

(a)  The Executive agrees that,if she terminates her employment without Good Reason (except pursuant toSection 12) hereunder or he is terminated for Cause, he will not, for aperiod of one year after such termination of employment with the Company, inany manner, directly or indirectly (or have a substantial ownership in, manage,operate, or control any entity which shall directly or indirectly): (i)perform, or cause to be performed, or solicit or aid, in any manner,solicitation of, any work of a type performed by the Company for any firm,corporation, or other entity (“Customer”) with which, at any time during thetwelve (12) month period prior to termination of the Employment Period, theExecutive, on behalf of the Company or any Subsidiary, conducted any business,or (ii) induce any personnel to leave the service of the Company or of anySubsidiary thereof.

 

(b)  The Executive shall hold ina fiduciary capacity for the benefit of the Company all secret or confidentialinformation, knowledge or data relating to the Company or any of its affiliatedcompanies, and their respective businesses: (i) obtained by the Executiveduring her employment by the Company or any of its affiliated companies and(ii) not otherwise public knowledge or known within the Company’sindustry.  After termination of theExecutive’s employment with the Company, the Executive shall not, without theprior written consent of the Company, unless compelled pursuant to the order ofa court or other body having jurisdiction over such matter or upon the adviceof counsel, communicate or divulge any such information, knowledge or data toanyone other than the Company and those designated by it.

 

(c)  The Executive agrees thatthe remedy at law for any breach by her of the foregoing shall be inadequateand that the Company shall be entitled to injunctive relief.  This Section constitutes an independentand separable covenant that shall be enforceable notwithstanding any right orremedy that the Company may have under any other provision of this Agreement orotherwise.

 

14.                                 Garnishment.  The benefits payable under this Agreementshall not be subject to garnishment, execution or levy of any kind, and anyattempt to cause any benefits to be so subjected shall not be recognized.

 

15.                                 Notice.  Any notice or any other communicationrequired or permitted hereunder shall be in writing and shall be deliveredpersonally, or sent by certified mail, return receipt requested, by FederalExpress, Express Mail or similar overnight delivery or courier service, or bytelecopy, answerback received.  Noticeto the Executive shall be delivered to her address set forth the head of thisAgreement, and notice to the Company shall be sent as follows:

 

Office of the General Counsel

 

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Computer Horizons Corp.

49 Old Bloomfield Avenue

Mountain Lakes, New Jersey 07096

 

Any notice given by certified mail shall be deemed given five daysafter the time of certification thereof. Any notice given by other means permitted by this Section 13 willbe deemed given at the time of receipt thereof.

 

Any party may by notice given in accordance with this Section tothe other parties, designate another address or person for receipt of noticeshereunder.

 

16.                                 ApplicableLaw.  This Agreement shall begoverned by and construed and enforced in accordance with the laws of the Stateof New Jersey without reference to its conflict of law provisions.

 

17.                                 Successors;Binding Agreement.  The Companyshall require any successor (whether direct or indirect, by purchase of stockor assets, merger, consolidation or otherwise) to all or substantially all ofthe business and/or assets of the Company, expressly to assume and agree, in awritten instrument in form and substance satisfactory to the Executive and hercounsel, to perform this Agreement in the same manner and to the same extentthat the Company would be required to perform it if no such succession hadtaken place.  Notwithstanding anythingherein to the contrary, this Agreement may not be assigned by the Companywithout prior written consent of the Executive.  This Agreement shall inure to the benefit of, and be enforceablyby, the Executive’s personal or legal representatives, executors,administrators, successors, heirs, distributees, devisees and legatees.  This Agreement is personal to the Executiveand neither this Agreement nor any rights hereunder may be assigned by theExecutive.

 

18.                                 NoMitigation; No Set-Off.  The Companyagrees that if the Executive’s employment with the Company is terminated duringthe Employment Term for any reason whatsoever, the Executive is not required toseek other employment or to attempt in any way to reduce any amounts payable tothe Executive by the Company pursuant to this Agreement.  Further, the amount of any payment orbenefit provided for in this Agreement shall not be reduced by any compensationearned by the Executive or benefit provided to the Executive as the result ofemployment by another employer or otherwise.

 

19.                                 Miscellaneous.  No provisions of this Agreement may bemodified, waived or discharged unless such waiver, modification or discharge isagreed to in writing and signed by the Executive and such officer of theCompany as may be specifically designated by the Board of Directors of theCompany.  No waiver by either partyhereto of any breach by the other party hereto of, or compliance with, anycondition or provision of this Agreement shall be deemed a waiver of similar ordissimilar provisions or conditions at the same or at any prior or subsequenttime.  This Agreement constitutes theentire Agreement between the parties hereto pertaining to the subject matterhereof.  No agreements orrepresentations, oral or otherwise, express or 

 

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implied, with respect to thesubject matter hereof have been made by either party which are not expresslyset forth in this Agreement.

 

20.                                 Counterparts.  This Agreement may be executed in severalcounterparts each of which shall be deemed to be an original but all of whichtogether will constitute one and the same instrument.

 

21.                                 Separability.  If any provisions of this Agreement shall bedeclared to be invalid or unenforceable, in whole or in part, such invalidityor unenforceability shall not affect the remaining provisions hereof whichshall remain in full force and effect.

 

22.                                 Non-Exclusivityof Rights.  Nothing in thisAgreement shall prejudice, prevent or limit the Executive’s previously vestedrights under, or continuing or future participation in, any benefit, bonus,incentive, equity or other plan or program provided by the Company and forwhich the Executive may qualify, nor shall anything herein limit or otherwiseprejudice such rights as the Executive may have under any other currentlyexisting plan or agreement regarding severance from employment with the Companyor statutory entitlements.

 

23.                                 Beneficiary.  The Executive shall be entitled to select(and change, to the extent permitted under any applicable law) a beneficiary orbeneficiaries to receive any compensation or benefit payable under thisEmployment Agreement following his death by giving the Company written noticethereof in accordance with the applicable Company Policies.  In the event the Executive's death or ajudicial determination or her incompetence, reference in this Agreement to theExecutive shall be deemed, where appropriate, to refer to his beneficiaryestate or other legal representative.

 

IN WITNESS WHEREOF, the Company has caused this Agreement to be dulyexecuted and the Executive has hereunto set his hand as of the date first setforth above.

 
|   | COMPUTER HORIZONS CORP. |
|--------|-------------------------|
|   |                    |
|   | By:                     | /s/ Michael J.  Shea        8/19/03 |   |
|   |                    | Authorized Officer |   |
|   |                    |
|   |                    |
|   | By:                     | /s/ Kristin R.  Evins        8/19/03 |   |
|   |                    | Kristin R. Evins |   |

 

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