Exhibit 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement"), including the attached
Exhibits A and B, is entered into between ▇▇▇▇▇ Technology Group, Inc., an
Illinois business corporation having offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Employer" or "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an
individual currently residing at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-
2018 ("Executive"), to be effective as of November 1, 1998 (the "Effective
Date").
WHEREAS, Employer is desirous of employing Executive pursuant to the terms
and conditions and for the consideration set forth in this Agreement, and
Executive is desirous of entering the employ of Employer pursuant to such terms
and conditions and for such consideration;
NOW, THEREFORE, for and in consideration of the mutual promises, covenants,
and obligations contained herein, Employer and Executive agree as follows:
ARTICLE 1: EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ Executive, and Executive agrees to be
employed by Employer, beginning as of 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 Executive shall be employed in the positions set forth on Exhibit A.
1.3 Executive shall, during the period of Executive'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 Executive. Subject to
the foregoing, Executive 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 material portion of Employee's
business time.
1.4 In connection with Executive's employment by Employer, Employer will
provide Executive access to confidential information pertaining to the business
and services of Employer as is appropriate for Executive's employment
responsibilities. Employer also shall provide to Executive the opportunity to
develop business relationships pertaining to the business and services of
Employer that are appropriate for Executive's employment responsibilities.
1.5 Executive acknowledges and agrees that, at all times during the
employment relationship, Executive 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 or threatened violation of this provision may be enjoined by the
courts. Subject to Section 5.7, 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
Executive's fiduciary duties to Employer, Executive agrees that during the
employment relationship Executive shall not knowingly become involved in a
material conflict of interest with Employer or its affiliates, or upon discovery
thereof, knowingly allow such a conflict to
EXECUTIVE EMPLOYMENT AGREEMENT
Page 1 of 8
continue beyond such period of time as is reasonably required under the
circumstances. Moreover, Executive agrees that Executive shall disclose to
Employer's Chairman of the Board any material facts, which involve such a
material conflict of interest that has not been approved by Employer's Chairman
of the Board. A violation or threatened violation of this prohibition may be
enjoined by the courts. Subject to Section 5.7, the rights afforded under this
provision are in addition to any and all rights and remedies otherwise afforded
by law.
1.7 Executive and Employer each understand and acknowledge that the
terms and conditions of this Agreement constitute confidential information, and
each shall keep confidential the terms of this Agreement and shall not disclose
this confidential information to anyone other than their respective attorneys
and tax advisors, or as required or compelled by law or legal proceeding.
ARTICLE 2: COMPENSATION AND BENEFITS
2.1 Executive's monthly base salary at all times during the Term shall
be not less than the amount set forth under the heading "Monthly Base Salary" on
Exhibit A, subject to increase at the sole discretion of the Employer, 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
Executive'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, Executive shall be entitled to receive the Quarterly Bonus
described on Exhibit A, and shall be entitled to participate during the Term in
the Long Term Incentive Compensation Plans listed on Exhibit A.
2.2 While employed by Employer (both during the Term and thereafter),
Executive shall be allowed to participate, on the same basis generally as other
senior executive employees of Employer, in all 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 most of
Employer's senior executive employees. In addition, Executive shall be entitled
to participate in the specific benefit plans listed on Exhibit A. Executive
shall not be entitled to participate in any benefit plans and programs not
referenced herein. Notwithstanding anything to the contrary herein, upon
termination of Executive's employment with Employer for any reason, Executive
(or his heirs, administrators or legatees) shall be entitled to receive benefits
accrued or payable with respect to Executive'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.
EXECUTIVE EMPLOYMENT AGREEMENT
Page 2 of 8
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 Executive'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) Executive's material gross negligence or material willful misconduct in the
performance of the duties and services required of Executive pursuant to this
Agreement, (ii) Executive's final conviction of a felony, (iii) Executive's
knowing involvement in a material conflict of interest as referenced in Section
1.6 which remains knowingly uncorrected beyond such period of time as may be
reasonably required by the circumstances following written notice to Executive
by Employer, or (iv) Executive's material breach of any material provision of
this Agreement which remains knowingly uncorrected beyond such period of time as
may be reasonably required by the circumstances following written notice to
Executive by Employer of such breach. It is expressly acknowledged and agreed
that the decision as to whether "cause" exists for termination of the employment
relationship by Employer is delegated to the Board of Directors of Employer for
good faith determination as to whether a reasonable basis for cause exists;
b. by reason of a notice of Involuntary Termination as described in
Section 4.1, or for any other reason whatsoever (other than a reason described
in Subparagraphs 3.1.a, 3.1.c, or 3.1.d), including termination without cause,
in the sole discretion of Employer, on ninety (90) days prior written notice to
Executive;
c. upon Executive's death; or
d. upon Permanent Disability of Executive. For purposes of this
Agreement, the term "Permanent Disability" shall mean that the Optionee 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 Executive'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 3.4. The
termination of Executive's employment by Employer upon or prior to the
expiration of the Term shall constitute an "Involuntary Termination" if made
pursuant to Section 3.1.b, or as described in Section 4.1; the effect of such
termination is specified in Section 3.5. The effect of the employment
relationship being terminated pursuant to Section 3.1.c as a result of
Executive's death is specified in Section 3.6. The effect of the employment
relationship being terminated pursuant to Section 3.1.d as a result of the
Executive's Permanent Disability is specified in Section 3.7.
3.2 Executive shall have the right to terminate the employment
relationship under this Agreement at any time upon or prior to the expiration of
the Term of employment for any reason
EXECUTIVE EMPLOYMENT AGREEMENT
Page 3 of 8
whatsoever, in the sole discretion of Executive, on ninety (90) days prior
written notice to Employer. The termination of Executive's employment upon or
prior to the expiration of the Term shall constitute a "Voluntary Termination"
if notice is made pursuant to this Section 3.2 or as described in Section 4.1;
the effect of such termination is specified in Section 3.3.
3.3 Upon a "Voluntary Termination" of the employment relationship by
Executive upon or prior to expiration of the Term, all unaccrued future
compensation to which Executive would otherwise have become entitled and all
unaccrued future benefits for which Executive is eligible, with the exception of
any and all statutory rights and benefits, shall cease and terminate as of the
date of termination; provided, however, that Executive shall be entitled to
payment for all accrued but unused vacation (subject to the carryover
limitation), and pro rata salary and pro rata portion of the Quarterly Bonus
through the date of such termination, plus the Payments upon Voluntary
Termination as set forth in Exhibit A, but Executive shall not be entitled to
any other bonuses or other compensation not yet accrued at the date of such
termination. Employer and Executive acknowledge that as of the Effective Date
of this Agreement, with exception of the Quarterly Bonus, none of Employer's
cash compensation or bonus programs have an accrual feature.
3.4 If Executive's employment hereunder shall be terminated by Employer
for Cause prior to expiration of the Term, all unaccrued future compensation to
which Executive would have otherwise have become entitled and all unaccrued
future benefits for which Executive would have otherwise have become eligible,
with the exception of any vested stock options and all statutory rights and
benefits, shall cease and terminate as of the date of termination. Executive
shall be entitled to payment for all accrued but unused vacation (subject to the
carryover limitation), pro rata salary, and pro rata portion of the Quarterly
Bonus through the date of such termination, but Executive shall not be entitled
to any bonuses or other compensation not yet paid at the date of such
termination.
3.5 Upon an Involuntary Termination of the employment relationship by
Employer upon or prior to expiration of the Term, (i) Executive shall be
entitled to the elections and the Payments upon Involuntary Termination set
forth on Exhibit A, and the entltlements provided to Executive under this
Agreement, as Executive's sole and exclusive rights against Employer or its
affiliates by reason of such Involuntary Termination, and (ii) Employer's sole
and exclusive liability to Executive under this Agreement, in contract, tort, or
otherwise, for any Involuntary Termination of the employment relationship shall
be the elections and the Payments upon Involuntary Termination set forth on
Exhibit A, and the entltlements provided to Executive under this Agreement.
Executive covenants not to ▇▇▇ or lodge any formal claim, demand or cause of
action against Employer for any sums for Involuntary Termination other than
those sums referred to in this Section 3.5; provided that nothing in this
Agreement shall preclude or in any way restrict Executive's right to pursue good
faith claims, demands, or causes of action against Employer on bases other than
those covered by Involuntary Termination. If Executive breaches this covenant,
Employer shall be entitled to recover from Executive all sums actually and
reasonably expended by Employer (including costs and attorneys' fees) in
connection with such suit, formal claim, demand or cause of action.
3.6 Upon termination of the employment relationship as a result of
Executive's death, Executive's heirs, administrators, or legatees shall be
entitled to Executive's payment for all of Executive's accrued but unused
vacation (subject to the carryover limitation), and pro rata salary and pro rata
portion of the Quarterly Bonus through the date of such termination.
EXECUTIVE EMPLOYMENT AGREEMENT
Page 4 of 8
3.7 Upon termination of the employment relationship as a result of
Executive's Permanent Disability, Executive shall be entitled to payment for all
of Executive's accrued but unused vacation (subject to the carryover
limitation), and pro rata salary and pro rata portion of the Quarterly Bonus
through the date of such termination.
3.8 In all cases, the compensation and benefits payable to Executive
under this Agreement upon termination of the employment relationship shall be
offset against any amounts to which Executive is otherwise entitled under any
and all severance plans and/or arrangements (not referred to in this
Agreement)of Employer or its affiliates.
3.9 Termination of the employment relationship does not terminate those
obligations imposed by this Agreement which are continuing obligations.
ARTICLE 4: CONTINUATION OF TERM:
4.1 Absent termination of this Agreement pursuant to Sections 3.1(a),
(c) or (d), the Term of this Agreement shall be automatically extended for a
period of one (1) year, upon the same terms and conditions (including this
sentence) as contained herein, unless either Employer gives written notice of
Involuntary Termination or Executive gives written notice of Voluntary
Termination to the other party not less than ninety (90) days prior to the last
day of the Term. Multiple extensions of the Term may be made pursuant to this
Section 4.1 so long as there is no Involuntary Termination, Voluntary
Termination, or other termination pursuant to Section 3.1(a), (c) or (d).
ARTICLE 5: MISCELLANEOUS:
5.1 For purposes of this Agreement the terms "affiliates" or
"affiliated" means an entity who directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with
Employer.
5.2 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), (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
EXECUTIVE EMPLOYMENT AGREEMENT
Page 5 of 8
vote for any such share, each reference to 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. A "Change in Control" will also be deemed to have occurred
if, at any time during Executive's employment with the Company, Executive ceases
to hold the position described on Schedule A or ceases to occupy a position
reporting and subordinate only to the President/Chief Executive Officer.
5.3 Employer and Executive each shall refrain, both during the
employment relationship and after the employment relationship terminates, from
publishing any oral or written statements about the other, any of their
subsidiaries or affiliates, or any of such individuals' or entities' officers,
employees, shareholders, agents or representatives, that are slanderous,
libelous, or defamatory; or that constitute a misappropriation of the name or
likeness of Executive or Employer, any of their subsidiaries or affiliates, or
any of such individual's or entities' or their officers, employees,
shareholders, agents, or representatives. A violation or threatened violation
of this prohibition may be enjoined by the courts. Subject to Section 5.7, the
rights afforded under this provision are in addition to any and all rights and
remedies otherwise afforded by law.
5.4 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: With a copy to:
▇▇▇▇▇ Technology Group, Inc. ▇▇▇▇▇ Technology Group, Inc.
Attn.: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Attn.: General Counsel
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to Executive, to: With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Either Employer or Executive 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.
5.5 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 the construction of the Agreement to the laws of another State or country.
5.6 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 or subsequent time.
5.7 Except as otherwise specifically provided in Section 1.5, Section
1.6, Section 5.3, or the Agreement Regarding Confidentiality and Non-Competition
(referenced in Section 5.12 hereinbelow), if a dispute arises out of or related
to this Agreement or the Agreement Regarding Confidentiality and Non-
Competition, and if the dispute cannot be settled through direct
EXECUTIVE EMPLOYMENT AGREEMENT
Page 6 of 8
discussions, then Employer and Executive agree to first endeavor to settle the
dispute in an amicable manner by mediation, before having recourse to any other
remedy, proceeding or forum.
5.8 During the term of this Agreement, each of the Employer and
Executive will be a resident of the greater Chicago metropolitan area.
Employer's principal place of business is in Chicago, ▇▇▇▇ County, Illinois.
This Agreement shall be performed in Chicago, Illinois. Any litigation that may
be brought by either Employer or Executive 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.
5.9 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.
5.10 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. Executive's rights and obligations under Agreement
hereof are personal and such rights, benefits, and obligations of Executive
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 Executive.
5.11 This Agreement replaces and merges previous agreements and
discussions pertaining to the following subject matters covered herein: the
nature of Executive'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 Executive shall
also reasonably comply with all reasonable policies and procedures of Employer
as clearly established from time to time, provided that such policies and
procedures are not inconsistent with this Agreement or any other written
agreement between Executive and Employer. 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 Executive by Employer that is not contained in
this Agreement shall be valid or binding. Any modification of this Agreement
will be effective only if 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.
EXECUTIVE EMPLOYMENT AGREEMENT
Page 7 of 8
5.12 Executive agrees to be bound by the terms of that certain Agreement
Regarding Confidentiality and Non-Competition, by and between Employer and
Executive, a copy of which is attached hereto and incorporated herein by
reference as Exhibit B.
IN WITNESS WHEREOF, Employer and Executive have duly executed this
Agreement in multiple originals.
▇▇▇▇▇ TECHNOLOGY GROUP, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:______________________________ ____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXECUTIVE EMPLOYMENT AGREEMENT
Page 8 of 8
EXHIBIT A TO
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN ▇▇▇▇▇ TECHNOLOGY GROUP, INC.
AND ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Term: From Effective Date through October 31, 2003 or if
later, the last date of any extension made pursuant to
Section 4.1.
Position: Executive Vice President and Chief Operating Officer.
Executive shall (a) be nominated for a seat on
Company's board of directors at such time as said board
is expanded to more than two (2) directors, but in no
event later than the adoption of any plan of initial
public offering; and (b) be selected as the Chief
Operating Officer and President of the Company not
later than November 1, 2001.
Location: Chicago, Illinois
Reporting Relationship: reporting and subordinate to only the President / CEO
Monthly Base Salary: $25,000.00 per 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
effective beginning January 1999.
Quarterly Bonus: A Quarterly Bonus of $15,000.00 per calendar quarter,
payable on the last business day of the month following
the end of the calendar quarter. The Quarterly Bonus
shall increase by the greater of five percent (5%) or
the CPI increase during the previous calendar year,
annually, such increases effective beginning January
1999. The Quarterly Bonus shall be prorated for the
period from the Effective Date through December 31,
1998.
Long Term Incentive
Compensation Plans: A. Eligibility to participate in the 1998 Employee
Long Term Stock Investment Plan; and
B. An Incentive Stock Option Grant under the 1998
Executive Long Term Stock Investment Plan for 333,330
common shares, under the following terms, all as
particularly described (or to be described) in the
grant agreement and plan:
(i) exercisable (vesting) 10% on November 8, 1998,
and an additional 10% on January 1 of each year
thereafter, beginning January 1, 1999, until
fully vested, the option for all shares to be
exercisable until and through October 31, 2008,
unless earlier terminated as provided herein;
(ii) having an exercise price of $3.00 per share;
EXHIBIT A TO
EXECUTIVE EMPLOYMENT AGREEMENT
Page 1 of 4
(iii) in the event of Executive's "Termination for
Cause", the unvested portion of the option
immediately terminates;
(iv) in the event of Executive's "Voluntary
Termination" prior to the earlier of (a) the
time that Employer completes its initial public
offering of common shares, or (b) November 1,
1999, the unexercised portion of the option
immediately terminates;
(v) in the event of Executive's "Voluntary
Termination" at or subsequent to the earlier of
(a) the time that Employer completes its
initial public offering of common shares, or
(b) November 1, 1999, the unvested portion of
the option immediately terminates;
(vi) in the event Executive's employment is
terminated by Employer in a situation other
than "Termination for Cause", or in the event
of a Change in Control:
(a) the unvested portion of the option
immediately vests to the extent
proportionate to the time Executive has
been employed by Employer (Example: If at
the time of termination, Executive has been
employed by Employer for six (6) calendar
quarters, an additional six (6) quarterly
portions of the option (a quarterly portion
reflecting approximately 8,333 shares)
would immediately vest; and
(b) within ninety (90) days of such a
termination or Change of Control, Executive
may elect to sell to Employer, within
twenty-four (24) months following such
election, a portion or all common shares of
stock of the Company acquired by exercising
the option, at the sales price of $6.00 per
share, such aggregate sales price being
payable in annual installments (with
interest accruing at the prime rate
following the date of the election), in as
short a period of time as possible and the
maximum annual installment being not
greater than $480,000.00
(vii) The foregoing is a summary of the anticipated
terms of the 1998 Executive Long Stock
Investment Plan and grant agreement with
Executive. Except with respect to terms
expressly provided herein, the terms and
conditions of said Plan and grant of option
agreement shall be controlling.
Benefits: Employer shall provide medical benefits under
Employer's medical plan to Executive.
EXHIBIT A TO
EXECUTIVE EMPLOYMENT AGREEMENT
Page 2 of 4
Executive is eligible to participate in the Employer
sponsored 401(k) savings plan.
Executive 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 Executive 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 Executive 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 Executive 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 Executive the
premiums for a term life insurance policy, as such
premiums become due and payable, providing for a death
benefit of $1 million, from the Effective Date until
the earlier of Executive attaining the age of 65 years
or the termination of Executive's employment with
Employer. (In the event Executive 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.)
Employer shall pay on behalf of Executive (or reimburse
to Executive) the value of airline upgrade certificates
for Executive's use as a frequent flyer on airlines of
Executive's choosing.
Employer shall pay the legal fees of Executive related
to the negotiation and finalization of this Agreement,
up to the sum of $13,000.00.
Payments upon
Voluntary Termination: In the event of a Voluntary Termination of Executive's
employment, Executive shall be entitled to the
following guaranteed payments in accordance with
Section 3.3:
A. In the event such termination occurs at or prior to
the time that Employer completes its initial public
offering of common shares ("IPO"), the sum of
$20,000.00 for each full month during which Executive
was an active full-time employee of Employer, and shall
be payable in monthly installments of $20,000.00 each,
less normal
EXHIBIT A TO
EXECUTIVE EMPLOYMENT AGREEMENT
Page 3 of 4
payroll withholdings, beginning on the last day of the
month following the month of termination, until fully
paid;
B. In the event Employer has not completed its IPO
prior to November 1, 1999, and such termination occurs
after November 1, 1999, but prior to completion of
Employer's IPO, the aggregate sum of $240,000.00,
payable at the rate of $20,000.00 per month, less
normal payroll withholdings, for a period of twelve
(12) months, beginning on the last day of the month
following the month of termination; or
C. In the event such termination occurs subsequent to
the time that Employer completes its IPO, there shall
be no guaranteed Payments upon Voluntary Termination.
Payments upon
Involuntary Termination: In the event of an Involuntary Termination of
Executive's employment pursuant to Section 3.1.b or as
described in Section 4.1, within ninety (90) days of
such a termination, Executive may elect to have a
portion or all vested but unexercised options
terminated by the Employer, and in such event, and only
in such event, Executive shall receive "Special
Severance Compensation" equal to the number of shares
that could be acquired upon exercise of the options so
terminated multiplied by $3.00, the product of such
being payable in annual installments (with interest
accruing at the prime rate following the date of the
election), in as short a period of time as possible and
the maximum annual installment being not greater than
$240,000.00.
IN WITNESS WHEREOF, Employer and Executive have duly executed this Exhibit A
to Executive Employment Agreement between ▇▇▇▇▇ Technology Group, Inc. and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in multiple originals to be effective on the Effective Date.
▇▇▇▇▇ TECHNOLOGY GROUP, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:_____________________________ _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXHIBIT A TO
EXECUTIVE EMPLOYMENT AGREEMENT
Page 4 of 4
EXHIBIT B
AGREEMENT REGARDING CONFIDENTIALITY AND NON-COMPETITION
This Agreement is by and between the employer, ▇▇▇▇▇ Technology Group, Inc.
(the "Firm"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Executive"). In consideration of the
Firm's employment of Executive, the compensation paid for Executive's services
in the course of such employment, and the training (internal and external,
formal and informal) received by Executive in the course of such employment,
Executive agrees as follows:
1. CONFIDENTIALITY OF INFORMATION.
A. In the course of performing his duties, Executive may have access to
and/or receive legally protected confidential and proprietary information
about the Firm, the Firm's employees, and the Firm's clients. Firm and
Executive agree that such legally protected confidential and proprietary
information is deemed to be Confidential Information ("Confidential
Information"). Under appropriate circumstances, Confidential Information may
include, without limitation, information about the Firm and the Firm'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 Firm or
the Firm's client. Under appropriate circumstances, Confidential Information
may also include, without limitation, information disclosed by the Firm's
clients which is not in the public domain; and information relative to the
Firm'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.
B. Executive will not knowingly, directly or indirectly, disclose any
Confidential Information of the Firm, 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;
provided, however, that nothing in this Agreement shall prohibit Executive
from communicating, disclosing or using information as required or permitted
under law.
C. Executive 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 Firm all Confidential
Information and any other client or Firm-owned material in his possession
whenever the Firm shall so request, or in the event of the termination of
Executive'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.
D. In the event Executive must disclose Confidential Information to third
parties during the normal course of business, such disclosure shall be
permitted, provided that Executive, where appropriate, makes those persons
aware of the confidential nature of the information which is being divulged.
E. Executive will not remove from Firm'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 Firm, its clients, or its employees, except as his employment with
the Firm shall require. In such cases, Executive will promptly return such
items and any copies within his/her possession or control to the Firm upon
request or upon termination of the Executive's employment.
F. Notwithstanding the preceding provisions of Paragraph 1, the obligations
of Executive regarding Confidential Information shall not apply to:
(1) information which, at the time of disclosure, use or transfer, was
published, known publicly, or otherwise in the public domain;
(2) 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 Executive;
(3) information which, prior to the time of disclosure, use or transfer,
is known to Executive as evidenced by his written records;
(4) information which is subsequently independently developed by
Executive without recourse to Confidential Information and without
Executive having violated any of his obligations under the Agreement; and
(5) information, which, after disclosure, use or transfer, is made
available to Executive in good faith by a third party under no obligation
of confidentiality.
Agreement Regarding Confidentiality and Non-Competition
Page 1 of 2
2. PATENT/INVENTION. If, during Executive's employment by Employer, Executive
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 on acquisitions, 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 Executive 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 Executive in
the scope of his employment; or if the work is prepared by Executive 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
Executive's employment by Employer and thereafter, Executive reasonably shall
assist (without any cost to Executive) 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.
3. NON-COMPETITION. During the term of employment and for a period of one (1)
year after the termination of employment, Executive agrees that he will not
knowingly provide services for current clients of the Firm to whom he was first
introduced during such term of employment as a result of the nature of his work
in his practice area of the Firm. A current client is defined as a company that
the Firm has provided services or products to within the one (1) year period
prior to the date of termination of Executive's employment.
4. SOLICITATION. As part of the consideration for the compensation and
benefits to be paid to Executive thereunder, in keeping with Executive'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, Executive agrees that Executive will not, directly or indirectly, for
Executive for others, knowingly induce any employee of Employer or any of its
affiliates to terminate his or her employment with Employer or its affiliates,
or knowingly hire or assist in the hiring of any such employee by any person,
association, or entity not affiliated with Employer. The obligations in this
Section shall extend throughout the Term of this Agreement and for a period of
one (1) year after the termination of the employment relationship between
Employer and Executive. Executive acknowledges that money damages would not be
sufficient remedy for any breach of this Section by Executive, and Employer
shall be entitled 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, but shall be in addition to all remedies
available at law or in equity to Employer, including, without limitation, the
recovery of damages from Executive and his agents involved in such breach.
5. PROFESSIONAL CONDUCT. Executive shall at all times conduct himself in a
professional manner.
6. ENFORCEABILITY. A violation or threatened violation of the provisions of
this Agreement 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. If any provision of this Agreement is invalid or unenforceable, the
remaining provisions shall continue in effect.
7. CONSTRUCTION. The terms of this Agreement may not be modified orally and
may only be modified by a written instrument executed by the parties hereto.
This Agreement shall be governed by and construed in accordance with the laws of
the state of Illinois, and shall be performed in ▇▇▇▇ County, Illinois.
8. SURVIVAL. The provisions of Sections 1 through 7 hereinabove shall survive
the termination of Executive's employment with the Firm.
9. DUPLICATE ORIGINALS. This Agreement has been executed in duplicate
originals.
BRUAN TECHNOLOGY GROUP, INC. "EXECUTIVE"
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:______________________________ __________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Agreement Regarding Confidentiality and Non-Competition
Page 2 of 2