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EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into
as of November 27, 2000 between ▇▇▇▇▇▇▇ Computer Services, Inc., a Delaware
corporation (the "Company"), and M. ▇▇▇▇▇ ▇▇▇▇▇ (the "Executive").
WHEREAS, the Company desires to employ the Executive to serve
as Chairman and Chief Executive Officer of the Company, and the Executive
desires to be employed by the Company, upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the Company and the Executive hereby agree
as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the
Executive and the Executive hereby agrees to be employed by the Company upon the
terms and subject to the conditions contained in this Agreement. The term of
employment of the Executive by the Company pursuant to this Agreement shall
commence on November 27, 2000 (the "Effective Date") and, unless earlier
terminated pursuant to Section 4 hereof, shall end on the third annual
anniversary of the Effective Date (the "Initial Term"); provided that the term
of this Agreement shall be extended automatically for one additional year as of
each annual anniversary of the Effective Date, commencing with the third annual
anniversary of the Effective Date, unless no later than 90 days prior to any
such renewal date either the Board of Directors of the Company (the "Board"), on
behalf of the Company, or the Executive gives written notice to the other that
the term of this Agreement shall not be so extended. The Initial Term and any
extension of the Initial Term pursuant to this Section 1 shall be referred to
herein as the "Employment Period."
2. POSITION AND DUTIES; RESPONSIBILITIES. (a) Position and
Duties. The Company shall employ the Executive during the Employment Period as
its Chairman and Chief Executive Officer. The Executive shall report to the
Board. During the Employment Period, the Executive shall perform faithfully and
loyally and to the best of the Executive's abilities the duties assigned to the
Executive hereunder and shall devote the Executive's full business time,
attention and effort to the affairs of the Company and its subsidiaries and
shall use the Executive's reasonable best efforts to promote the interests of
the Company and its subsidiaries. The Executive may engage in charitable, civic
or community activities and, with the prior approval of the Board, may serve as
a director of any other business corporation, provided that such activities or
service do not interfere with the Executive's duties hereunder or violate the
terms of any of the covenants contained in Sections 6, 7 or 8 hereof.
(b) Responsibilities. Subject to the powers, authority and
responsibilities vested in the Board and in duly constituted committees of the
Board, the Executive shall have the authority and responsibility for the
strategic direction of the Company and the general administration of the
Company's affairs. The Executive also shall perform such other duties (not
inconsistent with the position of Chairman and Chief Executive Officer) on
behalf of the Company and its subsidiaries as may from time to time be
authorized or directed by the Board.
3. COMPENSATION. (a) Base Salary. During the Employment
Period, the Company shall pay to the Executive a base salary at the rate of
$525,000 per annum, payable in
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accordance with the Company's executive payroll policy. Such base salary shall
be reviewed annually, and shall be subject to such annual increases, if any, as
determined by the Board or the Compensation Committee of the Board. The
Executive's annual base salary in effect from time to time under this Section
3(a) is hereinafter referred to as "Base Salary."
(b) Annual Bonus. During the Employment Period, the Company
shall provide the Executive the opportunity to earn an annual incentive bonus
under the Company's annual bonus plan in effect from time to time, with an
annual target bonus of 60% of the Executive's Base Salary ("Annual Bonus").
Nothing in this Section 3(b) shall be construed as limiting the Company's right
to revise, amend or terminate the Company's annual bonus plan in effect from
time to time.
(c) Stock Options. Subject to approval by the Compensation
Committee of the Board, on or as soon as practicable following the Effective
Date, the Executive shall be granted a nonqualified option to purchase 150,000
shares of the Company's common stock ("Common Stock") at a price equal to the
fair market value of a share of Common Stock on the date of grant. The terms and
conditions of such option shall be governed by the Executive's individual stock
option award agreement and the Company's 1997 Stock Incentive Plan and shall be
consistent with the Company's current practice regarding stock option grants to
executives of the Company. Any and all subsequent stock options granted to the
Executive during the Employment Period shall be granted in the sole discretion
of the Compensation Committee of the Board and shall be consistent with the
Company's then current practice regarding stock option grants to senior
executives of the Company.
(d) Other Benefits. During the Employment Period, the
Executive shall be entitled to participate in the Company's employee benefit
plans and programs generally available to senior executives of the Company,
including but not limited to the Company's relocation program (such benefits
being hereinafter referred to as the "Employee Benefits"). The Executive shall
be entitled to take time off for vacation or illness in accordance with the
Company's policy for senior executives and to receive all other fringe benefits
as are from time to time made generally available to senior executives of the
Company.
(e) Expense Reimbursement. During the Employment Period,
the Company shall reimburse the Executive, in accordance with the Company's
policies and procedures, for all proper expenses incurred by the Executive in
the performance of the Executive's duties hereunder.
4. TERMINATION. (a) Death. Upon the death of the
Executive, this Agreement shall terminate automatically and all rights of the
Executive and the Executive's heirs, executors and administrators to
compensation and other benefits under this Agreement shall cease immediately,
except that the Executive's heirs, executors or administrators, as the case may
be, shall be entitled to:
(i) accrued Base Salary through and including the
Executive's date of death;
(ii) the Annual Bonus, if any, that the Executive would have
received for the fiscal year in which the Executive's termination of
employment occurs had he remained
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employed through the end of such year, reduced pro rata for that
portion of such fiscal year not completed by the Executive;
(iii) all stock options granted to the Executive which remain
unexercisable on the date of death shall become fully exercisable; and
(iv) other Employee Benefits to which the Executive was
entitled on the date of death in accordance with the terms of the plans
and programs of the Company, including, but not limited to, life
insurance benefits.
(b) Disability. The Company may, at its option, terminate this
Agreement upon written notice to the Executive if the Executive, because of
physical or mental incapacity or disability, fails to perform the essential
functions of the Executive's position, with or without reasonable accommodation,
required of the Executive hereunder for a continuous period of 120 days or any
180 days within any 12-month period. Upon such termination, all obligations of
the Company hereunder shall cease immediately, except that the Executive shall
be entitled to:
(i) accrued Base Salary through and including the
effective date of the Executive's termination of employment;
(ii) the Annual Bonus, if any, that the Executive would have
received for the fiscal year in which the Executive's termination of
employment occurs had he remained employed through the end of such
year, reduced pro rata for that portion of such fiscal year not
completed by the Executive;
(iii) all stock options granted to the Executive which remain
unexercisable on the effective date of the executive's termination of
employment shall become fully exercisable; and
(iv) other Employee Benefits to which the Executive is
entitled upon termination of employment in accordance with the terms of
the plans and programs of the Company.
In the event of any dispute regarding the existence of the Executive's
incapacity or disability hereunder, the matter shall be resolved by the
determination of a physician selected by the Board. The Executive shall submit
to appropriate medical examinations for purposes of such determination.
(c) Cause. (i) The Company may, at its option, terminate the
Executive's employment under this Agreement for Cause (as hereinafter
defined) upon written notice to the Executive (the "Cause Notice"). Any
such termination for Cause shall be authorized by the Board. The Cause
Notice shall state the particular action(s) or inaction(s) giving rise
to termination for Cause. The Executive shall have five days after the
Cause Notice is given to cure the particular action(s) or inaction(s),
to the extent a cure is possible. If the Executive so effects a cure to
the satisfaction of the Board, the Cause Notice shall be deemed
rescinded and of no force or effect.
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(ii) As used in this Agreement, the term "Cause" shall mean
any one or more of the following:
(A) any refusal by the Executive to perform the
Executive's duties under this Agreement or to perform specific
directives of the Board which are consistent with the scope
and nature of the Executive's duties and responsibilities as
set forth herein;
(B) any intentional act of fraud, embezzlement or
theft by the Executive in connection with the Executive's
duties hereunder or in the course of the Executive's
employment hereunder or any prior employment, or the
Executive's admission or conviction of a felony or of any
crime involving moral turpitude, fraud, embezzlement, theft or
misrepresentation;
(C) any gross negligence or willful misconduct of the
Executive resulting in a loss to the Company or any of its
subsidiaries, or damage to the reputation of the Company or
any of its subsidiaries;
(D) any breach by the Executive of any one or more of
the covenants contained in Section 6, 7 or 8 hereof; or
(E) any violation of any statutory or common law duty
of loyalty to the Company or any of its subsidiaries.
(iii) The exercise of the right of the Company to terminate
this Agreement pursuant to this Section 4(c) shall not abrogate the
rights or remedies of the Company in respect of the breach giving rise
to such termination.
(iv) If the Company terminates the Executive's employment for
Cause, all obligations of the Company hereunder shall cease, except
that the Executive shall be entitled to the payments and benefits
specified in Sections 4(b)(i) and 4(b)(iv) hereof.
(d) Termination Without Cause. The Company may, at its option,
terminate the Executive's employment under this Agreement upon written notice to
the Executive for a reason other than a reason set forth in Section 4(a), 4(b)
or 4(c). Any such termination shall be authorized by the Board. If the Company
terminates the Executive's employment for any such reason, all obligations of
the Company hereunder shall cease immediately, except that the Executive shall
be entitled to:
(i) the payments and benefits specified in Sections 4(b)(i)
through 4(b)(iv) hereof, inclusive;
(ii) the continuation of payment of amounts equal to the Base
Salary on the date of the Executive's termination of employment which
otherwise would have been payable hereunder had the Executive's
employment hereunder not been terminated pursuant to this Section 4(d)
for a period of two years;
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(iii) the payment on each of the first and second
anniversaries of the date of the Executive's termination of employment
of an amount equal to the target Annual Bonus on the date of the
Executive's termination of employment; and
(iv) the continuation of medical and dental coverage under the
Company's medical and dental plans, provided that the Executive
continues to pay the employee portion of the premiums then in effect
for such medical and dental coverage, until the earlier of: (A) the
expiration of the two year period following the date on which the
Executive's termination of employment occurs and (B) the date on which
the Executive becomes eligible to participate in and receive medical
and dental benefits under plans or arrangements sponsored by another
employer.
(e) Voluntary Termination. Upon 60 days prior written notice
to the Company (or such shorter period as may be permitted by the Board), the
Executive may voluntarily terminate the Executive's employment with the Company
for any reason. If the Executive voluntarily terminates the Executive's
employment pursuant to this Section 4(e), all obligations of the Company
hereunder shall cease immediately, except that the Executive shall be entitled
to the payments and benefits specified in Sections 4(b)(i) and 4(b)(iv) hereof.
5. FEDERAL AND STATE WITHHOLDING. The Company shall deduct
from the amounts payable to the Executive pursuant to this Agreement the amount
of all required federal, state and local withholding taxes in accordance with
the Executive's Form W-4 on file with the Company, and all applicable federal
employment taxes.
6. NONCOMPETITION; NONSOLICITATION. (a) General. The
Executive acknowledges that in the course of the Executive's employment with the
Company the Executive has and will become familiar with trade secrets and other
confidential information concerning the Company and its subsidiaries and that
the Executive's services will be of special, unique and extraordinary value to
the Company and its subsidiaries.
(b) Noncompetition. The Executive agrees that during the
period of the Executive's employment with the Company and for a period of two
years thereafter (the "Noncompetition Period") the Executive shall not in any
manner, directly or indirectly, through any person, firm, corporation or
enterprise, alone or as a member of a partnership or as an officer, director,
stockholder, investor or employee of or consultant to any other firm,
corporation or enterprise or otherwise, engage or be engaged, or assist any
other person, firm, corporation or enterprise in engaging or being engaged, in
any business, in which the Executive was involved or had knowledge, being
conducted by, or contemplated by, the Company or any of its subsidiaries as of
the termination of the Executive's employment in any geographic area in which
the Company or any of its subsidiaries is then conducting such business.
(c) Nonsolicitation. The Executive further agrees that during
the Noncompetition Period the Executive shall not (i) in any manner, directly or
indirectly, induce or attempt to induce any employee of the Company or any of
its subsidiaries to terminate or abandon his or her employment for any purpose
whatsoever or (ii) in connection with any business to which Section 6(b)
applies, call on, service, solicit or otherwise do business with any customer of
the Company or any of its subsidiaries.
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(d) Exceptions. Nothing in this Section 6 shall prohibit the
Executive from being (i) a stockholder in a mutual fund or a diversified
investment company or (ii) an owner of not more than two percent of the
outstanding stock of any class of a corporation, any securities of which are
publicly traded, so long as the Executive has no active participation in the
business of such corporation.
(e) Reformation. If, at any time of enforcement of this
Section 6, a court or an arbitrator holds that the restrictions stated herein
are unreasonable under circumstances then existing, the parties hereto agree
that the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court or arbitrator shall be allowed to revise the restrictions contained
herein to cover the maximum period, scope and area permitted by law. This
Agreement shall not authorize a court or arbitrator to increase or broaden any
of the restrictions in this Section 6.
7. CONFIDENTIALITY. The Executive shall not, at any time
during the Employment Period or thereafter, make use of or disclose, directly or
indirectly, any (i) trade secret or other confidential or secret information of
the Company or of any of its subsidiaries or (ii) other technical, business,
proprietary or financial information of the Company or of any of its
subsidiaries not available to the public generally or to the competitors of the
Company or to the competitors of any of its subsidiaries ("Confidential
Information"), except to the extent that such Confidential Information (a)
becomes a matter of public record or is published in a newspaper, magazine or
other periodical or on electronic or other media available to the general
public, other than as a result of any act or omission of the Executive, (b) is
required to be disclosed by any law, regulation or order of any court or
regulatory commission, department or agency, provided that the Executive gives
prompt notice of such requirement to the Company to enable the Company to seek
an appropriate protective order, or (c) is required to be used or disclosed by
the Executive to perform properly the Executive's duties under this Agreement.
Promptly following the termination of the Employment Period, the Executive shall
surrender to the Company all records, memoranda, notes, plans, reports, computer
tapes and software and other documents and data which constitute Confidential
Information which the Executive may then possess or have under the Executive's
control (together with all copies thereof).
8. INTELLECTUAL PROPERTY. The Executive shall not, at any
time, have or claim any right, title or interest in any trade name, patent,
trademark, copyright, trade secret, intellectual property, methodologies,
technologies, procedures, concepts, ideas or other similar rights (collectively,
"Intellectual Property") belonging to the Company or any of its affiliates and
shall not have or claim any right, title or interest in or to any material or
matter of any kind prepared for or used in connection with the business or
promotion of the Company or any of its affiliates, whether produced, prepared or
published in whole or in part by the Executive or by the Company or any of its
affiliates. All Intellectual Property that is conceived, devised, made,
developed or perfected by the Executive, alone or with others, during the
Executive's employment that is related in any way to the Company's or any of its
affiliates' business or is devised, made, developed or perfected utilizing
equipment or facilities of the Company or its affiliates shall be promptly
disclosed to the Board, are works for hire and become the sole, absolute and
exclusive property of the Company. If and to the extent that any of such
Intellectual Property should be determined for any reason not to be a work for
hire, the Executive hereby assigns to the Company all of the Executive's right,
title and interest in and to such
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Intellectual Property. At the reasonable request and expense of the Company but
without charge to the Company, whether during or at any time after the
Executive's employment with the Company, the Executive shall cooperate fully
with the Company and its affiliates in the securing of any trade name, patent,
trademark, copyright or intellectual property protection or other similar rights
in the United States and in foreign countries, including without limitation, the
execution and delivery of assignments, patent applications and other documents
or papers. In accordance with the Illinois Employee Patent Act, 765 ILCS 1060,
the Executive is hereby notified by the Company, and understands, that the
foregoing provisions do not apply to an invention for which no equipment,
supplies, facilities or trade secret information of the Company was used and
which was developed entirely on the Executive's own time, unless (i) the
invention relates (A) to the business of the Company or (B) to the Company's
actual or demonstrably anticipated research and development, or (ii) the
invention results from any work performed by the Executive for the Company.
9. ENFORCEMENT. The parties hereto agree that the Company and
its subsidiaries would be damaged irreparably in the event that any provision of
Section 6, 7 or 8 of this Agreement were not performed in accordance with its
terms or were otherwise breached and that money damages would be an inadequate
remedy for any such nonperformance or breach. Accordingly, the Company and its
successors and permitted assigns shall be entitled, in addition to other rights
and remedies existing in their favor, to an injunction or injunctions to prevent
any breach or threatened breach of any of such provisions and to enforce such
provisions specifically (without posting a bond or other security). The
Executive agrees that the Executive will submit to the personal jurisdiction of
the courts of the State of Illinois in any action by the Company to enforce an
arbitration award against the Executive or to obtain interim injunctive or other
relief pending an arbitration decision.
10. REPRESENTATIONS. The Executive represents and warrants to
the Company that (a) the execution, delivery and performance of this Agreement
by the Executive does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Executive is a party or by which the Executive is bound, (b) the
Executive is not a party to or bound by any employment agreement, noncompetition
agreement or confidentiality agreement with any other person or entity which
would conflict with the execution, delivery or performance of this Agreement and
(c) upon the execution and delivery of this Agreement by the Company, this
Agreement shall be the valid and binding obligation of the Executive,
enforceable in accordance with its terms.
11. SURVIVAL. Sections 6, 7, 8 and 9 of this Agreement shall
survive and continue in full force and effect in accordance with their
respective terms, notwithstanding any termination of the Employment Period.
12. ARBITRATION. Except as otherwise set forth in Section 9
hereof, any dispute or controversy between the Company and the Executive,
whether arising out of or relating to this Agreement, the breach of this
Agreement, or otherwise, shall be settled by arbitration in Chicago, Illinois,
administered by the American Arbitration Association, with any such dispute or
controversy arising under this Agreement being so administered in accordance
with its Commercial Rules then in effect, and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to
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award any remedy or relief that a court of competent jurisdiction could order or
grant, including, without limitation, the issuance of an injunction. However,
either party may, without inconsistency with this arbitration provision, apply
to any court having jurisdiction over such dispute or controversy and seek
interim provisional, injunctive or other equitable relief until the arbitration
award is rendered or the controversy is otherwise resolved. Except as necessary
in court proceedings to enforce this arbitration provision or an award rendered
hereunder, or to obtain interim relief, neither a party nor an arbitrator may
disclose the existence, content or results of any arbitration hereunder without
the prior written consent of the Company and the Executive. The Company and the
Executive acknowledge that this Agreement evidences a transaction involving
interstate commerce. Notwithstanding any choice of law provision included in
this Agreement, the United States Federal Arbitration Act shall govern the
interpretation and enforcement of this arbitration provision.
13. NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed given when (a)
delivered personally or by overnight courier to the following address of the
other party hereto (or such other address for such party as shall be specified
by notice given pursuant to this Section) or (b) sent by facsimile to the
following facsimile number of the other party hereto (or such other facsimile
number for such party as shall be specified by notice given pursuant to this
Section), with the confirmatory copy delivered by overnight courier to the
address of such party pursuant to this Section 13:
If to the Company, to:
▇▇▇▇▇▇▇ Computer Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Executive, to:
Mr. M. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
14. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding between the parties with respect to the subject
matter hereof and supersedes
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and preempts any prior understandings, agreements or representations by or
between the parties, written or oral, which may have related in any manner to
the subject matter hereof.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be
enforceable by the Executive and the Executive's heirs, executors,
administrators and legal representatives, and by the Company and its successors
and assigns.
17. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Illinois without regard to principles of conflict of laws.
18. AMENDMENT AND WAIVER. The provisions of this Agreement
may be amended or waived only by the written agreement of the Company and the
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
19. COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original and both of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
▇▇▇▇▇▇▇ COMPUTER SERVICES, INC.
By:
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Title:
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/s/ M. ▇▇▇▇▇ ▇▇▇▇▇
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