Employment Agreement - Technology Solutions Co. and Kelly D. Conway
EMPLOYMENT AGREEMENT
Technology Solutions Company, a Delaware corporation doing business as
TSC, and KELLY D. CONWAY ("Employee") enter into this Employment Agreement
("Agreement") as of January 19, 1996.
In consideration of the agreements and covenants contained in this
Agreement, TSC and Employee agree as follows:
1. EMPLOYMENT DUTIES: TSC shall employ Employee as an Executive Vice
President. Employee shall have such responsibilities, duties and authority as
the President and Chief Executive Officer may reasonably designate and are
commensurate with the position of Executive Vice President. Employee shall
perform faithfully the duties assigned to him to the best of his ability and
shall devote his full and undivided business time and attention to the
transaction of TSC's business.
2. TERM OF EMPLOYMENT: The term of employment ("Term of Employment")
covered by this Agreement shall commence as of the effective date of this
Agreement and continue until terminated pursuant to Paragraph 3 below.
3. TERMINATION: This Agreement may be terminated as follows:
(a) TSC may terminate Employee's employment and this Agreement for any
reason upon giving Employee 90 days notice of termination. TSC may make the
termination effective at any time within the 90 day notice period ("Termination
Date"). During this period Employee shall make a good faith effort to satisfy
those professional obligations requested to be performed b TSC, which may
include transferring duties and assisting in the transition of client
responsibilities, including meeting with clients and transferring confidential
material. TSC must, however, for a period of two years following the Termination
Date, unless Employee is terminated for Serious Misconduct, continue Employee's
base salary on the Termination Date ("Current Salary"); provide a bonus equal to
the average annual bonus earned during the two years immediately preceding the
termination ("Average Bonus") for each of the two years, payable each year when
annual bonuses are paid; and continue his health insurance benefits until the
end of the two year period or until Employee is re-employed, whichever comes
first. (These payments are referred to collectively as "Termination Payments").
(b) TSC may terminate Employee's employment and this Agreement
immediately without notice and with no salary and benefit continuation if
Employee engages in "Serious Misconduct." For purposes of this Agreement,
"Serious Misconduct" means embezzlement or misappropriation of corporate funds,
other acts of dishonesty, significant activities materially harmful to TSC's
reputation, or any significant violation of any statutory or common law duty of
loyalty to TSC.
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(c) If, following a Change in Control, Employee's title, position,
salary, or benefits is reduced or Employee's duties or status is materially
reduced, and Employee resigns within 90 days after the reduction becomes
effective, or if Employee is ordered to relocate his residence for a period in
excess of six months to any location outside of the metropolitan area where he
resides when the Change in Control occurs and Employee declines and is
terminated, Employee shall receive his Termination Payments. Notwithstanding
anything to the contrary in any of Employee's stock option agreements.
Employee's unvested TSC shares at option shall vest automatically upon a Change
in Control. (A Change in Control is defined as (i) the acquisition by any
individual, entity or group, of beneficial ownership (within the meaning of Rule
13 d-3 promulgated under the Securities Exchange Act of 1934) of 40% or more of
the outstanding shares of the common stock of TSC; (ii) the approval of the
stockholders of TSC of a merger, where immediately after the merger, persons who
were the holders of a majority of TSC's outstanding common stock immediately
prior to the merger fail to own at least a majority of the outstanding common
stock of the surviving entity in substantially the same proportions as their
holdings of TSC common stock immediately prior to the merger; or (iii) the sale
of substantially all the assets of TSC other than to a corporation in which more
than 60% of the outstanding shares are beneficially owned by the individuals and
entities who are the beneficial owners of the Company stock prior to the
acquisition.
(d) If Employee dies, TSC must continue Employee's Current Salary and
health insurance benefits for a period of one year following the date of his
death, and, in addition, provide an Average Bonus, all payable to Employee's
estate. If Employee becomes permanently disabled and unable to continue to work
at TSC, TSC must pay Employee's Current Salary, health insurance benefits and an
Average Bonus, for a period of one year following the date Employee is declared
permanently disabled.
(e) If either party materially breaches this Agreement and fails to cure
the breach within 30 days after receiving notice of the breach from the
breached party, the breached party may consider this Agreement as terminated by
the breaching party.
(f) Employee may terminate his employment upon giving TSC 90 days
notice. TSC may make the termination effective at any time within the 90 day
notice period. During this period Employee shall make a good faith effort to
satisfy those professional obligations requested to be performed by TSC, which
may include transferring duties and assisting in the transition of client
responsibilities, including meeting with clients.
(g) Notwithstanding anything in the foregoing to the contrary, if any of
the payments to Employee provided for in this Agreement, together with any other
payments which Employee has the right to receive from TSC or any corporation
which is a member of an "affiliated group" as defined in Section 1504(a) of the
Code without regard to Section 1504(b) of the Internal Revenue Code) of which
TSC is a member, would constitute a "parachute payment" (as defined in Section
280G(b)(2) of the Internal Revenue Code). the payments pursuant to this
Agreement shall be reduced to the largest amount as will result in no portion of
such payments being subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code; provided, however, that in determining whether any
reduction in the payments under this Agreement pursuant to this sentence is
necessary, the mutually agreed upon value for the non-compete provision as
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determined by an outside expert shall be deducted from the value of the
parachute payment. If after applying the value for the non-compete provision, a
reduction in payment is still necessary, the Employee shall determine what
portion of the parachute payment shall be reduced, and such determination shall
be conclusive and binding on TSC with respect to its treatment of the payment
for tax reporting purposes.
4. SALARY: As compensation for his services, TSC shall pay Employee a
base salary of not less than the amount listed in Exhibit A to this Agreement.
Employee's base salary shall be subject to annual review and may, at the
discretion of TSC's management, be adjusted from that listed in Exhibit A
according to Employee's responsibilities, capabilities and performance during
the preceding year.
5. BONUS AND STOCK OPTIONS: Employee shall participate in TSC's Vice
Presidents Compensation Program, as amended from time to time, which includes
base salary, annual bonus, and equity.
6. EMPLOYEE BENEFITS: During the Term of Employment, Employee shall be
entitled to participate in such employee benefit plans, including group pension,
life and health insurance and other medical benefits, and shall receive all
other fringe benefits as TSC may make available generally to its Vice
Presidents.
7. BUSINESS EXPENSES: TSC shall reimburse Employee for all reasonable
and necessary business expenses incurred by Employee in performing his duties.
Employee shall provide TSC with supporting documentation sufficient to satisfy
reporting requirements of the Internal Revenue Service and TSC. TSC's
determination as to reasonableness and necessary shall be final.
8. NONCOMPETITION AND NONDISCLOSURE: Employee acknowledges that the
successful development and marketing of TSC's professional services and products
require substantial time and expense. Such efforts generate for TSC valuable and
proprietary information ("Confidential Information") which gives TSC a business
advantage over others who do not have such information. Confidential Information
of TSC and its clients and prospects includes, but is not limited to, the
following: business strategies and plans; proposals; deliverables; prospects and
customer lists; methodologies; training materials; and computer software.
Employee acknowledges that during the Term of Employment, he will obtain
knowledge of such Confidential Information. Accordingly, Employee agrees to
undertake the following obligations which he acknowledges to be reasonably
designed to protect TSC's legitimate business interests without unnecessarily or
unreasonably restricting Employee's post-employment opportunities:
(a) Upon termination of the Term of Employment for any reason, Employee
shall return all TSC property, including but not limited to computer programs,
files, notes, records, charts, or other documents or things containing in whole
or in part any of TSC's Confidential Information;
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(b) During the Term of Employment and subsequent to termination,
Employee agrees to treat all such Confidential Information as confidential and
to take all necessary precautions against disclosure of such information to
third parties during and after Employee's employment with TSC. Employee shall
refrain from using or disclosing to any person, without the prior written
approval of TSC's Chief Executive Officer, any Confidential Information unless
at that time the information has become generally and lawfully known to TSC's
competitors;
(c) Without limiting the obligations of Paragraph 8(b), Employee shall
not, for himself or as an agent, partner or employee of any person, firm or
corporation: (i) for a period of two years following his termination of
employment for any reason, engage in the practice of consulting or related
services for any client of TSC for whom Employee performed services, or
prospective TSC client to whom Employee submitted, or assisted in the submission
of a proposal during the two year period preceding his termination of
employment; or (ii) for a period of two years following any involuntary
termination for any reason or for a period of six months following Employee's
voluntary termination from TSC so long as TSC continues to pay his salary during
the six month period, participate in or have a financial, management or other
interest in any business enterprise that engages in, or within two years of the
termination of Employee's employment has plans to engage in, substantial and
direct competition with TSC if such participation will likely involve the use by
Employee of business plans, strategies and other confidential TSC business
information developed or acquired by Employee during his employment as a senior
officer of TSC;
(d) During a two year period immediately following Employee's
termination of employment for any reason, Employee shall not induce or assist in
the inducement of any TSC employee away from TSC's employ or from the faithful
discharge of such employee's contractual and fiduciary obligations to serve
TSC's interests with undivided loyalty;
(e) For two years following his termination of employment for any
reason, Employee shall keep TSC currently advised in writing of the name and
address of each business organization for which he acts as agent. partner,
representative or employee.
9. REMEDIES: Employee recognizes and agrees that a breach of any or all of
the provisions of Paragraph 8 will constitute immediate and irreparable harm to
TSC's business advantage, including but not limited to TSC's valuable business
relations, for which damages cannot be readily calculated and for which damages
are an inadequate remedy. Accordingly, Employee acknowledges that TSC shall
therefore be entitled to an order enjoining any further breaches by the
Employee. Employe agrees to reimburse TSC for all costs and expenses, including
reasonable attorneys' fees incurred by TSC in connection with the enforcement of
its rights under any provision of this Agreement.
10. INTELLECTUAL PROPERTY: During the Term of Employment, Employee shall
disclose to TSC all ideas, inventions and business plans which he develops
during the course of his employment with TSC which relate directly or indirectly
to TSC's business, including but not limited to any computer programs,
processes, products or procedures which may, upon application, be protected by
patent or copyright. Employee agrees that any such ideas, inventions
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or business plans shall be the property of TSC and that Employee shall at TSC's
request and cost, provide TSC with such assurances as is necessary to secure a
patent or copyright.
11. PRINCIPLES AND POLICIES: Employee agrees to be bound by TSC's
principles and policies, including Principles and Policies of Business Conduct,
as amended from time to time, which is incorporated herein by reference.
12. ASSIGNMENT: Employee acknowledges that the services to be rendered
pursuant to this Agreement are unique and personal. Accordingly, Employee may
not assign any of his rights or delegate any of his duties or obligations under
this Agreement. Subject to Paragraph 3(c) above, TSC may assign its rights,
duties or obligations under this Agreement to a subsidiary or affiliated company
of TSC or purchaser or transferee of a majority of TSC's outstanding capital
stock or a purchaser of all, or substantially all, of the assets of TSC.
13. NOTICES: All notices shall be in writing, except for notice of
termination of employment, which may be oral if confirmed in writing within 14
days. Notices intended for TSC shall be sent by registered or certified mail
addressed to it at 205 North Michigan Avenue, 15th Floor, Chicago, Illinois
60601 or its current principal office, and notices intended for Employee shall
be either delivered personally to him or sent by registered or certified mail
addressed to his last known address.
14. ENTIRE AGREEMENT: This Agreement and Exhibit A attached hereto
constitute the entire agreement between TSC and Employee. Neither Employee nor
TSC may modify this Agreement by oral agreements, promises or representations.
The parties may modify this Agreement only by a written instrument signed by the
parties.
15. APPLICABLE LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
16. MEDIATION OF DISPUTES: Neither party shall initiate arbitration or
other legal proceedings (except for any claim under Paragraph 8 of this
Agreement), against the other party, or, in the case of TSC, any of its
directors, officers, employees, agents, or representatives, relating in any way
to this Agreement, to Employee's employment with TSC, the termination of his
employment or any or all other claims that one party might have against the
other party until 30 days after the party against whom the claim[s] is made
("Respondent") receives written notice from the claiming party of the specific
nature of any purported claim and the amount of any purported damages. Employee
and TSC further agree that if Respondent submits the claiming party's claim to
the Center for Public Resources, 680 Fifth Avenue, New York, New York 10019, for
nonbinding mediation prior to the expiration of such 30 day period, the claiming
party may not institute arbitration or other legal proceedings against
Respondent until the earlier of (i) the completion of nonbinding mediation
efforts, or (ii) 90 days after the date on which the Respondent received written
notice of the claimant's claim.
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17. BINDING ARBITRATION: Employee and TSC agree that all claims or
disputes relating to his employment with TSC or the termination of such
employment, and any and all other claims that Employee might have against TSC,
any TSC director, officer, employee, agent, or representative, and any and all
claims or disputes that TSC might have against Employee (except for any claims
under Paragraph 8 of this Agreement) shall be resolved by expedited arbitration.
The party pursuing a claim should submit the claim to Jarns/Endispute, Inc.,
Three First National Plaza, 70 West Madison. Suite 200, Chicago, IL 60602. Such
arbitration shall be conducted in Chicago before a single arbitrator within
twenty days of the submission of a claim. The parties shall select an arbitrator
by mutual agreement from a panel of arbitrators proposed by Jams/Endispute, Inc.
The panel shall consist of former judges experienced in arbitrating employment
disputes. If the parties are unable to agree on an arbitrator. Jams/Endispute,
Inc. shall select an arbitrator in accordance with its procedures.
The parties shall exchange documents relevant to the claims alleged, but
shall undertake no additional discovery. The parties may submit pre-hearing
briefs only. The arbitration proceeding shall not be transcribed or otherwise
recorded. The arbitrator shall render an award within seven days of completion
of the hearing. Both parties agree that the arbitrator's award shall be final
and binding, and the parties waive any right to appeal.
18. SEVERABILITY: Whenever possible, each provision of this Agreement will
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 prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
19. Employee acknowledges that he has read, understood and accepts the
provisions of this Agreement.
Technology Solutions Company KELLY D. CONWAY
By: John T. Kohler Kelly D. Conway
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Position: CEO
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Date: Jan 25, 1996 Date: 1/19/96
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