Exhibit 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), including and incorporating the
attached Exhibit A, is entered into between ▇▇▇▇▇ Consulting, Inc., an Illinois
business corporation having offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Employer" or "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an
individual currently residing at Four ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Employee"), to be effective on May 5, 1999 (the "Effective
Date").
Whereas, Employer is desirous of employing Employee pursuant to the terms
and conditions and for the consideration set forth in this Agreement, and
Employee is desirous of entering the employ of Employer pursuant to such terms
and conditions and for such consideration;
Therefore, for and in consideration of the mutual promises, covenants, and
obligations contained herein, Employer and Employee agree as follows:
ARTICLE 1: EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ Employee, and Employee agrees to be employed
by Employer, beginning on the Effective Date and continuing until the date set
forth on Exhibit A (the "Term"), subject to the terms and conditions of this
Agreement.
1.2 Employee initially shall be employed in the position set forth on
Exhibit A.
1.3 Employee shall, during the period of Employee's employment by
Employer, devote substantially his full business time, energy, and best efforts
to the business and affairs of Employer, subject to reasonable vacation and sick
leave and reasonable charitable and civic activities for Employee. Subject to
the foregoing, Employee may not knowingly engage, directly or indirectly, in any
other business, investment, or activity that materially interferes with
Employee's performance of Employee's duties hereunder, is materially contrary to
the interests of Employer, or requires any significant portion of Employee's
business time.
1.4 In connection with Employee's employment by Employer, Employer will
provide Employee access to confidential information pertaining to the business
and services of Employer as is appropriate for Employee's employment
responsibilities. Employer also shall provide to Employee the opportunity to
develop business relationships pertaining to the business and services of
Employer that are appropriate for Employee's employment responsibilities.
1.5 Employee acknowledges and agrees that, at all times during the
employment relationship, Employee owes fiduciary duties to Employer, including
but not limited to the fiduciary duties of the highest loyalty, fidelity and
allegiance to act at all times in the best interests of the Employer. A
violation of this provision may be enjoined by the courts. The rights afforded
under this provision are in addition to any and all rights and remedies
otherwise afforded by law.
1.6 It is agreed that any direct or indirect interest in, connection with,
or benefit from any outside activities, particularly commercial activities,
which interest might in any way adversely affect Employer or any of its
affiliates, involves a possible conflict of interest. In keeping with Employee's
fiduciary duties to Employer, Employee agrees that during the employment
relationship Employee shall not knowingly become involved in a conflict of
interest with Employer or its affiliates, or upon discovery thereof, knowingly
allow such a conflict to continue beyond such period of time as is reasonably
required under the circumstances. Moreover, Employee agrees that
Employee shall disclose to Employer's Chairman of the Board any known facts that
might involve such a conflict of interest that has not been approved by
Employer's Chairman of the Board. A violation of this provision may be enjoined
by the courts. The rights afforded under this provision are in addition to any
and all rights and remedies otherwise afforded by law.
ARTICLE 2: COMPENSATION AND BENEFITS
2.1 Employee's monthly base salary during the Term shall be not less than
the amount set forth under the heading "Monthly Base Salary" on Exhibit A, which
shall be paid in installments in accordance with Employer's standard payroll
practice. Any calculation to be made under this Agreement with respect to
Employee's Monthly Base Salary shall be made using the then current Monthly Base
Salary in effect at the time of the event for which such calculation is made. In
addition, Employee shall be entitled to participate in the Bonus Plan and the
Long Term Incentive Compensation Plan listed on Exhibit A. It is possible that
the measures and/or formulae of the Bonus Plan may change over time.
2.2 While employed by Employer (both during the Term and thereafter),
Employee shall be allowed to participate, on the same basis generally as other
employees of Employer of similar authority and responsibility, in all general
employee benefit plans and programs, including improvements or modifications of
the same, which on the Effective Date or thereafter are made available by
Employer to all or substantially all of Employer's employees. In addition,
Employee shall be entitled to participate in the specific benefit plans listed
on Exhibit A. Employee shall not be entitled to participate in any benefit plans
and programs not expressly referenced herein (other than the plans and programs
generally made available to other employees of similar authority and
responsibility), or certain benefit plans or programs where Employee must be
excluded due to insider status, equity ownership, or control issues.
Notwithstanding anything to the contrary herein, upon termination of Employee's
employment with Employer for any reason, Employee (or his heirs, administrators
or legatees) shall be entitled to receive benefits accrued or payable with
respect to Employee's service prior to such termination of employment according
to the provisions of such benefit plans and programs.
2.3 Employer shall not by reason of this Article 2 be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing, any
such employee benefit plan or program, so long as such actions are similarly
applicable to covered employees generally. Moreover, except as specifically
provided herein to the contrary, none of the benefits or arrangements described
in this Article 2 shall be secured or funded in any way, and each shall instead
constitute an unfunded and unsecured promise to pay money in the future
exclusively from the general assets of Employer.
2.4 Employer may withhold from any compensation, benefits, or amounts
payable under this Agreement all federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
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ARTICLE 3: TERMINATION PRIOR TO EXPIRATION OF TERM AND EFFECTS OF SUCH
TERMINATION:
3.1 Notwithstanding any other provisions of this Agreement, Employer shall
have the right to terminate Employee's employment under this Agreement at any
time prior to the expiration of the Term for any of the following reasons:
a. for "cause" upon the good faith determination by the Employer's
board of directors that "cause" exists for the termination of the employment
relationship. As used in this Section 3.1.a, the term "cause" shall mean only
(i) Employee's material gross negligence or willful misconduct in the
performance of the duties and services required of Employee pursuant to this
Agreement, which remains uncorrected for a period of thirty (30) days following
written notice to Employee by Employer, (ii) Employee's final conviction of a
felony, (iii) Employee's involvement in a conflict of interest as referenced in
Sections 1.5-1.6 which remains uncorrected for a period of thirty (30) days
following written notice to Employee by Employer, (iv) Employee's knowing
violation of the policies of Employer in such a manner as to expose Employer to
administrative, civil or criminal liability, which violation remains uncorrected
for a period of thirty (30) days following written notice to Employee by
Employer, (v) Employee's knowing and material violation of Employer's Standards
of Conduct (as currently published, Policies 410 through 490 from ▇▇▇▇▇
Consulting Policies, and as amended and published from time to time), which
violation remains uncorrected for a period of thirty (30) days following written
notice to Employee by Employer, and (vi) Employee's material breach of the any
material provisions of this Agreement, which breach remains uncorrected for a
period of thirty (30) days following written notice to Employee by Employer, It
is expressly acknowledged and agreed that the decision as to whether "cause"
exists for termination of the employment relationship by Employer shall be
determined by the sole good-faith discretion of the board of directors of
Employer;
b. for any other reason whatsoever, including termination without
cause, in the sole discretion of Employer, on sixty (60) days prior written
notice (Notice of Termination) to Employee;
c. upon Employee's death; or
d. upon Employee's Permanent Disability. For purposes of this
Agreement, the term "Permanent Disability" shall mean that the Employee for a
period of not less than ninety (90) consecutive days (a) is unable to perform
the important duties of his own occupation on a full-time or part-time basis
because of injury or sickness; (b) does not work at all; and (c) is under a
Doctor's Care. For purposes of this definition, "Doctor's Care" means the
regular and personal care of a doctor or physician (licensed to practice the
healing arts and practicing within the scope of his or her license) that, under
prevailing medical standards, is appropriate for the condition causing the
disability.
The termination of Employee's employment by Employer prior to the expiration of
the Term shall constitute a "Termination for Cause" if made pursuant to section
3.1.a; the effect of such termination is specified in Section 3.5. The
termination of Employee's employment by Employer prior to the expiration of the
Term shall constitute an "Involuntary Termination" if made pursuant to Section
3.1.b; the effect of such termination is specified in Section 3.6. The effect of
the employment relationship being terminated pursuant to Section 3.1.c as a
result of Employee's death is specified
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in Section 3.7. The effect of the employment relationship being terminated
pursuant to Section 3.1.d as a result of the Employee becoming permanently
disabled is specified in Section 3.8.
3.2 Employee shall have the right to terminate the employment relationship
under this Agreement at any time prior to the expiration of the Term of
employment for the following reasons:
a. Employee may terminate the employment relationship for "Good
Reason" if during the Term, (i) Employer violates this Agreement in any material
respect, which violation continues for a period of thirty (30) days following
written notice to Employer by Employee of such violation; (ii) Employer changes
the location of employment from that set forth on Exhibit A (without Employee's
express written consent), and such change remains in effect for a period of
thirty (30) days following the delivery of written notice thereof by Employee to
Employer (it being understood that a refusal by Employee to change the location
of his employment during such thirty (30) day period shall not be constitute a
breach of the Agreement by Employee); (iii) the nature or scope of the duties
assigned to Employee are materially diminished (without Employee's express
written consent) without "cause" (as defined in Section 3.1.a), so as to no
longer be consistent with the duties and authorities of the Employee's position
described in Exhibit A, and such material violation or material diminution have
continued for a period of thirty (30) days following the delivery of written
notice thereof by Employee to Employer, or (iv) there is a material change in
the Reporting Relationship as identified on Exhibit A (without the written
consent of Employee, which consent will not be unreasonably withheld), and such
material change remains in effect for a period of thirty (30) days following the
delivery of written notice thereof by Employee to Employer. A wriitten notice by
the Employee under this Section 3.2.a shall deemed to be a "Notice of
Termination."
b. Employee may terminate the employment relationship for any other
reason, in the sole discretion of Employee, on sixty (60) days prior written
notice to Employer.
The termination of Employee's employment by Employee prior to the expiration of
the Term shall constitute a "Resignation for Good Reason" if made pursuant to
Section 3.2.a; the effect of such termination is specified in Section 3.3. The
termination of Employee's employment by Employee prior to the expiration of the
Term shall constitute a "Voluntary Termination" if made pursuant to Section
3.2.b; the effect of such termination is specified in Section 3.4.
3.3 Upon a "Resignation for Good Reason" by Employee prior to the
expiration of the Term, Employee shall be entitled, in consideration of
Employee's continuing obligations hereunder after such termination, to receive
(a) his salary through the end of the month in which the Date of Termination
occurs, (b) the pro rata portion of the Bonus through the Date of Termination,
and (c) the Payments upon Resignation for Good Reason set forth on Exhibit A.
Employee's rights under this Section 3.3 are Employee's sole and exclusive
rights against Employer or its affiliates, and Employer's sole and exclusive
liability to Employee under this Agreement, in contract, tort, or otherwise, for
any Resignation for Good Reason by Employee. Employee covenants not to ▇▇▇ or
lodge any claim, demand, or cause of action against Employer for any sums for
Resignation for Good Reason other than those sums referred to in this Section
3.3, including reasonable costs of collecting such sums (including reasonable
fees and disbursements of counsel). If Employee breaches this covenant, Employer
shall be entitled to recover from Employee all sums reasonably
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expended by Employer (including reasonable fees and disbursements of counsel) in
connection with such suit, claim, demand, or cause of action.
3.4 Upon a "Voluntary Termination" of the employment relationship by
Employee prior to expiration of the Term, all future compensation to which
Employee is entitled and all future benefits for which Employee is eligible,
with the exception of any and all statutory rights and benefits, shall cease and
terminate as of the Date of Termination. Employee shall be entitled to pro rata
salary, payment for all accrued but unused vacation (subject to any carryover
limitation), and the pro rata portion of any bonus earned through the date of
such termination, but Employee shall not be entitled to any bonuses or incentive
compensation not yet earned at the Date of Termination.
3.5 If Employee's employment hereunder shall be terminated by Employer as
Termination for Cause prior to expiration of the Term, all future compensation
to which Employee is entitled and all future benefits for which Employee is
eligible, with the exception of any and all statutory rights and benefits, shall
cease and terminate as of the Date of Termination. Employee shall be entitled to
receive pro rata salary, payment for all accrued but unused vacation (subject to
any carryover limitation), and the pro rata portion of the Bonus earned through
the Date of Termintion, but Employee shall not be entitled to any bonuses or
incentive compensation not yet earned at the Date of Termination.
3.6 Upon an Involuntary Termination of the employment relationship by
Employer prior to expiration of the Term, Employee shall be entitled, in
consideration of Employee's continuing obligations hereunder after such
termination, to receive (a) his salary through the end of the month in which the
Date of Termination occurs, (b) the pro rata portion of the Bonus through the
Date of Termination, and (c) the Payments upon Involuntary Termination set forth
on Exhibit A. Employee's rights under this Section 3.6 are Employee's sole and
exclusive rights against Employer or its affiliates, and Employer's sole and
exclusive liability to Employee under this Agreement, in contract, tort, or
otherwise, for any Involuntary Termination of the employment relationship.
Employee covenants not to ▇▇▇ or lodge any claim, demand or cause of action
against Employer for any sums for Involuntary Termination other than those sums
referred to in this Section 3.6, including reasonable costs of collecting such
sums (including reasonable fees and disbursements of counsel). If Employee
breaches this covenant, Employer shall be entitled to recover from Employee all
sums reasonably expended by Employer (including reasonable fees and
disbursements of counsel) in connection with such suit, claim, demand, or cause
of action.
3.7 Upon termination of the employment relationship as a result of
Employee's death, Employee's heirs, administrators, or legatees shall be
entitled to Employee's pro rata salary and the pro rata portion of the Bonus
through the Date of Termination, and Employee's heirs, administrators, or
legatees shall be entitled to receive an amount equal to one-sixth (1/6) of (and
to be paid on the terms identical to) the Payment upon Involuntary Termination
set forth in Exhibit A.
3.8 Upon termination of the employment relationship as a result of
Employee's Permanent Disability, Employee shall be entitled to receive his pro
rata salary through the Date of Termination, and Employee shall be entitled to a
pro rata portion of the Bonus through the Date of Termination. In addition (but
without duplication), Employee shall be entitled to receive an amount equal to
one-half (1/2) of (and to be paid on the terms identical to) the Payment upon
Involuntary Termination set forth in Exhibit A.
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3.9 In all cases, the compensation and benefits payable to Employee under
this Agreement upon termination of the employment relationship shall be offset
against any amounts to which Employee may otherwise be entitled under any and
all severance plans, and policies of Employer or its affiliates.
3.10 Termination of the employment relationship does not terminate those
obligations imposed by this Agreement, which are continuing obligations,
including, without limitation, Employee's obligations under Articles 5 and 6.
ARTICLE 4: CONTINUATION OF EMPLOYMENT BEYOND TERM; TERMINATION AND EFFECTS OF
TERMINATION:
4.1 Unless earlier terminated as otherwise provided herein, the Term
specified on Exhibit A shall automatically extend for an additional year unless
terminated upon written notice by either party not less than sixty (60) days
prior to the end of the Term, and shall continuously renew thereafter on an
annual basis unless terminated by either party within sixty (60) days prior to
the end of such year.
ARTICLE 5: OWNERSHIP AND PROTECTION OF INFORMATION; COPYRIGHTS:
5.1 In the course of performing his duties, Employee may have access to
and/or receive legally protected confidential and proprietary information about
the Employer, the Employer's employees, and the Employer's clients. Employer and
Employee agree that such legally protected confidential and proprietary
information is deemed to be Confidential Information ("Confidential
Information"). Confidential Information includes, without limitation,
information about the Employer, the Employer's affiliates, and the Employer's
clients, such as earnings, acquisitions or other businesses, and changes in
management which, if known to the public, might affect the decision of a
reasonable investor to buy, sell, or hold securities issued by the Employer or
the Employer's client. Under appropriate circumstances, Confidential Information
also includes, without limitation, information disclosed by the Employer's
clients which is not in the public domain; and information relative to the
Employer's and affiliate's business plans, client lists, financial and billing
information, marketing strategies, personnel information, proprietary
methodologies, proprietary software, research, development and/or design
projects as well as data relating to them, systems for project management and
application development, proposal formats, and working papers. Employee
understands and acknowledges that the terms and conditions of this Agreement
constitute Confidential Information.
5.2 Employee will not knowingly, directly or indirectly, disclose any
Confidential Information of the Employer, its subsidiaries, employees,
affiliates, or clients to any person, firm, corporation, or other entity, during
and at all times after the expiration of the term of this Agreement, and
Employee will not knowingly, directly or indirectly, use any Confidential
Information of the Employer, its subsidiaries, employees, affiliates, or clients
for any purpose other than the legitimate fulfillment of his duties as an
employee of Employer, during and at all times after the expiration of the term
of this Agreement; provided, however, that nothing in this Agreement shall
prohibit Employee from communicating, disclosing or using information as
required or permitted under law.
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5.3 Employee will use due care and take all reasonable precautions to
prevent disclosure, use or transfer of any Confidential Information in violation
of this Agreement, and will deliver to the Employer all Confidential Information
and any other client or Employer-owned material in his possession whenever the
Employer shall so request, or in the event of the termination of Employee's
employment. Upon termination of Employee's employment by Employer, for any
reason, Employee promptly shall deliver the same and all copies thereof, to
Employer.
5.4 In the event Employee must disclose Confidential Information to third
parties during the normal course of business, such disclosure shall be
permitted, provided that Employee, where appropriate, makes those persons aware
of the confidential nature of the information which is being divulged.
5.5 Employee will not remove from Employer's or any client's premises any
documents, files, records, computer programs, software, correspondence, notes or
other papers (including copies, electronic and otherwise) belonging to the
Employer, its clients, or its employees, except as his employment with the
Employer shall require. In such cases, Employee will promptly return such items
and any copies within his/her possession or control to the Employer upon request
or upon termination of the Employee's employment.
5.6 Notwithstanding the preceding provisions of Paragraph 5.1, the
obligations of Employee regarding Confidential Information shall not apply to:
a. information which, at the time of disclosure, use or transfer,
was published, known publicly, or otherwise in the public domain;
b. information which, after disclosure, use or transfer, is
published, becomes known publicly, or otherwise becomes part of the public
domain through no fault of the Employee;
c. information which, prior to the time of disclosure, use or
transfer, is known to Employee as evidenced by his competent evidence;
d. information which is subsequently independently developed by
Employee without recourse to Confidential Information and without Employee
having violated any of his obligations under the Agreement; and
e. information, which, after disclosure, use or transfer, is made
available to Employee in good faith by a third party under no obligation of
confidentiality.
5.7 If, during Employee's employment by Employer, Employee creates any
original work of authorship fixed in any tangible medium of expression which is
the subject mater of copyright (such as videotapes, written presentations,
computer programs, drawings, maps, architectural renditions, models, manuals,
brochures, or the like) and which relates principally to Employer's business,
products, or services, whether such work is created solely by Employee or
jointly with others (whether during business hours or otherwise and whether on
Employer's premises or otherwise), Employer shall be deemed the author of such
work if the work is prepared by Employee in the scope of his employment; or if
the work is prepared by Employee within the scope of his employment but is
specially ordered by Employer as a contribution to a collective work, as a part
of a motion picture or other audio-visual work, as a translation, as a
supplementary work, as a compilation, or as an instructional text, then the work
shall be considered to be work made for hire and Employer shall be the author of
the work. Both during the period of Employee's employment
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by Employer and thereafter, Employee reasonably shall assist (without any cost
to Employee) Employer and its nominee, at any time, in the protection of
Employer's worldwide right, title, and interest in and to information, ideas,
concepts, improvements, discoveries, and inventions, and its copyrighted works,
including without limitation, the execution of all formal assignment documents
requested by Employer or its nominee and the execution of all lawful oaths and
applications for applications for patents and registration of copyright in the
United States and foreign countries.
5.8 Employee acknowledges that money damages would not be sufficient
remedy for any material breach of this Article 5 by Employee, and Employer shall
be entitled to enforce the provisions of this Article 5 by terminating the
employment relationship, terminating any payments then owing to Employee under
this Agreement, and/or to specific performance and injunctive relief as remedies
for such breach or any threatened breach. Such remedies shall not be deemed the
exclusive remedies for a breach of this Article 5, but shall be in addition to
all remedies available at law or in equity to Employer, including, without
limitation, the recovery of damages from Employee and his agents involved in
such breach.
ARTICLE 6: POST-EMPLOYMENT OBLIGATIONS:
6.1 As part of the consideration for the compensation and benefits to be
paid to Employee thereunder, in keeping with Employee's duties as a fiduciary,
and in order to protect Employer's interest in the trade secrets of Employer,
and as an additional incentive for Employer to enter into this Agreement,
Employer and Employee agree to the provisions of this Article. Employee agrees
that Employee will not, directly or indirectly, for Employee or others, induce
any employee of Employer or any of its affiliates to terminate his or her
employment with Employer or its affiliates, or hire or assist in the hiring of
any such employee by any person, association, or entity not affiliated with
Employer.
6.2 Employer and Employee agree that the Employee will not provide
services in any manner for current or prospective clients of Employer. A current
client is defined as an entity for which the Employer has provided services or
products to within the two (2) year period prior to the date of termination of
Employee's employment. A prospective client is defined as an entity to which the
Employer has extended written proposals for services within twelve (12) months
prior to Employee's termination of employment.
6.3 The obligations in Sections 6.1 and 6.2 shall be applicable as follow:
a. if termination of the employment relationship between Employer
and Employee occurs prior to one (1) year after the Effective Date of this
Agreement, the obligations in Sections 6.1 and 6.2 shall be applicable during
the term of employment and for a period of three (3) years after the Date of
Termination;
b. if termination of the employment relationship between Employer
and Employee occurs more than one (1) year, but prior to two (2) years after the
Effective Date of this Agreement, the obligations in Sections 6.1 and 6.2 shall
be applicable during the term of employment and for a period of two (2) years
after the Date of Termination; and
c. if termination of the employment relationship between Employer
and Employee occurs more than two (2) years after the Effective Date of this
Agreement, the obligations
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in Sections 6.1 and 6.2 shall be applicable during the term of employment and
for a period of one (1) year after the Date of Termination; and
6.4 Employee acknowledges that money damages would not be sufficient
remedy for any breach of this Article 6 by Employee, and Employer shall be
entitled to enforce the provisions of this Article 6 by terminating the
employment relationship, terminating any payments then owing to Employee under
this Agreement, and/or to specific performance and injunctive relief as remedies
for such breach or any threatened breach. Such remedies shall not be deemed the
exclusive remedies for a breach of this Article 6, but shall be in addition to
all remedies available at law or in equity to Employer, including, without
limitation, the recovery of damages from Employee and his agents involved in
such breach.
ARTICLE 7: MISCELLANEOUS:
7.1 For purposes of this Agreement the terms "affiliates" or "affiliated"
means an entity that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or its under common control with Employer.
7.2 For purposes of this Agreement, the term "Date of Termination" means
the date upon which Employee ceases to be employed by Employer. Any Notice of
Termination under Sections 3.1 and 3.2 shall specify the Date of Termination;
provided, however, that the Date of Termination may not occur prior to the
expiration of any notice period provided for herein.
7.3 For purposes of this Agreement, the term "Change of Control" means (i)
the Company merges or consolidates with any other entity and is not the
surviving entity (or survives only as the subsidiary of another entity), unless,
following such merger or consolidation, more than 60% of the then outstanding
shares of common stock of the corporation resulting from such merger or
consolidation is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial owners
of the Voting Stock immediately prior to such merger or consolidation in
substantially the same proportions as their ownership immediately prior to such
merger or consolidation of the Voting Stock, (ii) the Company sells all or
substantially all of its assets to any other person or entity, (iii) the Company
is dissolved, (iv) if any third person or entity (for this purpose the spouse or
any member of the extended family of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall not be considered a
third person) together with its affiliates or others knowingly and intentionally
acting in concert, shall become, directly or indirectly, the beneficial owner of
at least 51% of the Voting Stock of the Company, or (v) if, during such time as
the Company has a class of Voting Stock registered under the Securities Exchange
Act of 1934, the individuals who constituted the members of the Company's Board
of Directors ("Incumbent Board") upon the effective date of such registration
cease for any reason to constitute at least a majority thereof, provided that
any person becoming a director whose election or nomination for election by
Company shareholders was approved by a vote of at least eighty percent (80%) of
the directors comprising the Incumbent Board (either by the specific vote or
approval of the proxy statement of the Company in which such person is named as
a nominee for director, without objection to such a nomination) shall be, for
purposes of this clause (v), considered as though such person were a member of
the Incumbent Board. "Voting Stock" means all the outstanding shares of capital
stock of Company entitled to vote generally in elections for directors,
considered as one class; provided, however, that if Company has shares of Voting
Stock entitled to more or less than one vote for any such share, each reference
to
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a proportion of shares of Voting Stock shall be deemed to refer to such
proportion of the votes entitled to be cast by such shares.
7.4 Employee shall refrain, both during the employment relationship and
after the employment relationship terminates, from publishing any oral or
written statements about Employer, any of its subsidiaries or affiliates, or any
of such entities' officers, employees, shareholders, agents or representatives
that are slanderous, libelous, or defamatory; or that disclose private or
confidential information about Employer, any of its subsidiaries or affiliates,
or any of such entities' business affairs, officers, employees, shareholders,
agents, or representatives; or that constitute an intrusion into the seclusion
or private lives of Employer, any of its subsidiaries or affiliates, or such
entities' officers, employees, shareholders, agents, or representatives; or that
place Employer or any of its subsidiaries or affiliates, or any of such
entities' or its officers, employees, shareholders, agents, or representatives
in a false light before the public; or that constitute a misappropriation of the
name or likeness of Employer, any of its subsidiaries or affiliates, or any of
such entities' or its officers, employees, shareholders, agents, or
representatives. The courts may enjoin a violation or threatened violation of
this prohibition. The rights afforded the Employer entities and affiliates under
this provision are in addition to any and all rights and remedies otherwise
afforded by law.
7.5 For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly
given when personally delivered or when mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Employer, to: ▇▇▇▇▇ Consulting, Inc.
Attn.: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
Attn.: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
3400 Chase Tower
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
If to Employee, to the address shown on the first page hereof, with a copy to:
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, LLP
Attn.: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
Either Employer or Employee may furnish a change of address to the other in
writing in accordance herewith, except that notices of changes of address shall
be effective only upon receipt.
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7.6 This Agreement shall be governed in all respects by the laws of the
State of Illinois, excluding any conflict-of-law rule or principle that might
refer to the construction of the Agreement to the laws of another State or
country.
7.7 No failure by either party hereto at any time to give notice of any
breach by the other party of, or to require compliance with, any condition or
provision of this Agreement shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior to subsequent time.
7.8 If a dispute arises out of or related to this Agreement, other than a
dispute regarding Employee's obligations under Section 1.5, Section 1.6, Article
5, Article 6, or Section 7.4, and if the dispute cannot be settled through
direct discussions, then Employer and Employee agree to first endeavor to settle
the dispute in an amicable manner by mediation, before having recourse to any
other proceeding or forum.
7.9 Employer's principal place of business is in Chicago, ▇▇▇▇ County,
Illinois. Any litigation that may be brought by either Employer or Employee
involving the enforcement of this Agreement or the rights, duties, or
obligations of this Agreement, shall be brought exclusively in the State or
federal courts sitting in Chicago, ▇▇▇▇ County, Illinois.
7.10 It is a desire and intent of the parties that the terms, provisions,
covenants and remedies contained in this Agreement shall be enforceable to the
fullest extent permitted by law. If any such term, provision, covenants, or
remedy of this Agreement or the application thereof to any person, association,
or entity or circumstances shall, to any extent, be construed to be invalid or
unenforceable in whole or in part, then such term, provision, covenant, or
remedy shall be construed in a manner so as to permit its enforceability under
the applicable law to the fullest extent permitted by law. In any case, the
remaining provisions of this Agreement or the application thereof to any person,
association, or entity or circumstances other than those to which they have been
held invalid or unenforceable, shall remain in full force and effect.
7.11 This Agreement shall be binding upon and inure to the benefit of
Employer and any other person, association, or entity which may hereafter
acquire or succeed to all or substantially all of the business or assets of
Employer by any means whether direct or indirect, by purchase, merger,
consolidation, or otherwise. Employee's rights and obligations under Agreement
hereof are personal and such rights, benefits, and obligations of Employee shall
not be voluntarily or involuntarily assigned, alienated, or transferred, whether
by operation of law or otherwise, without the prior written consent of Employer.
Employer shall not assign this Agreement without the prior written consent of
Employee.
7.12 This Agreement replaces and merges previous agreements and
discussions pertaining to the following subject matters covered herein: the
nature of Employee's employment relationship with Employer and the term and
termination of such relationship. This Agreement constitutes the entire
agreement of the parties with regard to such subject matters, and contains all
of the covenants, promises, representations, warranties, and agreements between
the parties with respect to such subject matters; provided that Employee shall
also comply with all policies and procedures of Employer as established from
time to time. Each party to this Agreement acknowledges that no representation,
inducement, promise, or agreement, oral or written, has been made by either
party with respect to such subject matters, which is not embodied herein, and
that no agreement, statement, or promise relating to the employment of Employee
by Employer that is not contained in this Agreement shall be valid or binding.
Any modification of this Agreement will be effective only if
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it is in writing and signed by each party whose rights hereunder are affected
thereby, provided that any such modification must be authorized or approved by
the board of directors of Employer.
Employer and Employee have duly executed this Agreement in multiple
originals to be effective on the date first signed above.
▇▇▇▇▇ CONSULTING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________ ____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
Date: May 4, 1999 Date: May 4, 1999
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EXHIBIT A TO
EMPLOYMENT AGREEMENT BETWEEN
▇▇▇▇▇ CONSULTING, INC. AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Employee Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Term: From Effective Date through April 30, 2002
Position: Executive Vice President
Employee shall be nominated for a seat on
Employer's board of directors.
Location: Boston, Massachusetts and metropolitan area thereof
Reporting Relationship: President/Chief Executive Officer
Monthly Base Salary: $25,000.00 per month (less normal payroll
deductions), payable on the last day of the
calendar month. Monthly Base Salary shall increase
by the greater of five percent (5%) or the CPI
increase during the previous calendar year,
annually, such increases being effective beginning
January 2000.
Bonus Plan: Senior Director Bonus Program - targeted to 20% of
base salary, and based on (i) Employer revenue
(40%), (ii) practice unit profit (50%), and (iii)
discretionary - MBO achievement (10%), to be
calculated and paid quarterly, one month trailing,
with exception of discretionary portion, which is
distributed annually.
Discretionary Bonus Program - at the discretion of
the President, based on performance.
Long Term Incentive
Compensation Plan: A. Eligibility to participate in the 1998 Employee
Long Term Stock Investment Plan; and
B. An Incentive Stock Option Grant under the 1998
Employee Long Term Stock Investment Plan for 66,333
common shares, under the following terms, all as
particularly described (or to be described) in the
grant agreement and plan:
(i) exercisable (vesting) 25% on the date being
sixty (60) days after the Effective Date, an
additional 25% on the date being one (1)
full year after the Effective Date of the
Employment Agreement, an additional 25% on
the date being two (2) full years after the
Effective Date of the Employment Agreement,
and the remainder on the date being three
(3) full years after the Effective Date of
the Employment Agreement, unless earlier
terminated as provided herein;
(ii) having an exercise price equal to the fair
market value of Employer's common stock on
the date of the grant;
(iii) in the event of a termination of the
employment relationship under Section 3.1.b
or Section 3.2.a, seventy-five percent
(75%) of the unvested portion of the option
on the date of the issuance of the Notice
of Termination shall immediately vest upon
issuance of the Notice of Termination, and
any remaining unexercised portion of the
option shall terminate on the Date of
Termination; and
(iv) in the event of a termination of the
employment relationship other than under
Section 3.1.b or Section 3.2.a of the
Employment Agreement, the unexercised
portion of the option immediately
terminates on Date of Termination.
(v) The foregoing is a summary of the
anticipated terms of the 1998 Employee Long
Stock Investment Plan and grant agreement
with Employee. Except with respect to terms
expressly provided herein, the terms and
conditions of said Plan and grant of option
agreement shall be controlling.
Payments upon
Involuntary Termination: In the event of an Involuntary Termination of
Employee's employment pursuant to Section 3.1.b of
the Agreement, Employee shall be entitled under
Section 3.6 of the Agreement to the following
guaranteed payments:
An amount equal to the Employee's Monthly Base
Salary on the date of the issuance of the Notice of
Termination, per month, commencing on the last day
of the month following the month in which the Date
of Termination occurs, as follows:
(i) if the Date of Termination occurs prior to
one (1) year after the Effective Date of
the Agreement, the number of monthly
payments shall be twenty-four (24);
(ii) if the Date of Termination occurs more than
one (1) year, but less than two (2) years
after the Effective Date of the Agreement,
the number of monthly payments shall be
equal to the number of whole months
remaining from the Date of Termination to
the end of the Term of the Agreement;
(iii) if the Date of Termination occurs more than
two (2) years after the Effective Date of
the Agreement, the number of monthly
payments shall be twelve (12); and
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(iv) in the event of an Involuntary Termination
of Employee's employment pursuant to
Section 3.1.b of the Agreement occurs after
a Change of Control (as defined in Section
7.2 of the Agreement), the aggregate amount
of the applicable monthly payments to be
paid shall instead be paid in six (6)
equal, consecutive monthly installments,
each being equal to one-sixth of such
aggregate amount, commencing on the last
day of the month following the month in
which the Date of Termination occurs. It is
agreed that in the event of a default in
payment under this Subparagraph (iv) for
any reason whatsoever, all then remaining
payments shall become immediately due and
payable after five (5) days written notice,
if such default is not cured within the
five (5) day notice period.
Payments upon Resignation
for Good Reason: In the event of a Resignation for Good Reason
pursuant to Section 3.2.a, Employee shall be
entitled under Section 3.3 of the Agreement to the
following guaranteed payments:
An amount equal to the Employee's Monthly Base
Salary on the date of the issuance of the Notice of
Termination, per month, commencing on the last day
of the month following the month in which the Date
of Termination occurs, as follows:
(i) if the Date of Termination occurs prior to
one (1) year after the Effective Date of
the Agreement, the number of monthly
payments shall be twenty-four (24);
(ii) if the Date of Termination occurs more than
one (1) year, but less than two (2) years
after the Effective Date of the Agreement,
the number of monthly payments shall be
equal to the number of whole months
remaining from the Date of Termination to
the end of the Term of the Agreement;
(iii) if the Date of Termination occurs more than
two (2) years after the Effective Date of
the Agreement, the number of monthly
payments shall be twelve (12); and
(iv) in the event of a Resignation for Good
Reason pursuant to Section 3.2.a of the
Agreement occurs after a Change of Control
(as defined in Section 7.2 of the
Agreement), the aggregate amount of the
applicable monthly payments to be paid
shall instead be paid in six (6) equal,
consecutive monthly installments, each
being equal to one-sixth of such
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aggregate amount, commencing on the last
day of the month following the month in
which the Date of Termination occurs. It is
agreed that in the event of a default in
payment under this Subparagraph (iv) for
any reason whatsoever, all then remaining
payments shall become immediately due and
payable after five (5) days written notice,
if such default is not cured within the
five (5) day notice period.
Benefits: Employer's health plan (medical, dental, vision and
prescriptions).
Long term disability insurance program.
Psychiatric and substance abuse care plan.
Life and accidental death and dismemberment
insurance plan.
Eligibility to participate in the
Employer sponsored 401(k) savings plan, per terms
of plan.
Employee shall be entitled to four (4) weeks of
vacation, accrued on an annual basis at the rate of
1/12 of the entitlement per completed month of
service, in accordance with Employer's policy. Said
policy provides that the maximum accrual is 1.5
times the employee's current annual entitlement.
Employer shall pay on behalf of Employee (or
reimburse to Employee) reasonable downtown
luncheon/athletic club dues during the Term,
subject to approval, which approval shall not be
unreasonably withheld.
Employer shall pay on behalf of Employee reasonable
costs associated with continuing professional
education during the Term, subject to approval,
which approval shall not be unreasonably withheld.
Employer shall pay on behalf of Employee the
reasonable monthly contract fee for downtown
parking near the Employer's location, subject to
approval, which approval shall not be unreasonably
withheld.
Employer shall pay to or on behalf of Employee the
premiums of up to $1,000.00 for a term life
insurance policy, as such premiums become due and
payable, from the Effective Date until the earlier
of Employee attaining the age of 65 years or the
termination of Employee's employment with Employer.
(In the event Employee elects to use a whole life
or other type of insurance policy, Employer shall
be obligated to pay only the premium equal to the
term life portion of such insurance.)
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Employer shall pay on behalf of Employee (or
reimburse to Employee) the value of airline upgrade
certificates for Employee's use as a frequent flyer
on airlines of Employee's choosing.
Employer and Employee have duly executed this Exhibit A in multiple
originals to be effective on the date indicated in the Employment Agreement.
▇▇▇▇▇ CONSULTING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------ ------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
Date: May 4, 1999 Date: May 4, 1999
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