Employment Agreement - TSC and Timothy J. Cunningham
EMPLOYMENT AGREEMENT
Technology Solutions Company, a Delaware corporation doing business as TSC,
and Timothy J. Cunningham ("Employee") enter into this Employment Agreement
("Agreement") as of November 15, 1999.
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 a Senior Vice President
and Chief Financial Officer of its eLoyalty Corporation division ("eLoyalty").
Employee shall have the such responsibilities, duties and authority as the
President of eLoyalty may reasonably designate. Employee shall perform
faithfully the duties assigned to him to the best of his ability and shall
devote his full undivided business time and attention to the transaction of
TCS'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 the following July 31, subject to the provisions of
paragraph 3 below (the "Initial Term of Employment"). Upon expiration of the
Initial Term of Employment, this Agreement shall be renewed automatically for
successive terms of one year each, unless TSC notifies Employee of its intention
not to renew at least 90 days prior to the expiration of the current term.
3. TERMINATION: Notwithstanding the provisions of paragraph 2 of this
Agreement, upon giving Employee 180 days notice, TSC may terminate Employee's
employment for any reason. TSC may make such termination effective at any time
within such 180 day notice period. TSC must, however, continue Employee's normal
salary and health insurance benefits until the end of the 180 day notice period
unless Employee begins employment with another employer during such time, in
which case TSC's obligations shall cease. In addition, 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, willful refusal to perform or
substantial disregard of Employee's assigned duties (including, but limited to,
refusal to travel or work the requested hours), or any significant violation of
any statutory or common law duty of loyalty to TSC
If following a Change in Control (which 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 TCS's outstanding common stock immediately
prior to the merger fail to own
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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 that 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),
Employee's title, position, duties, or salary is diminished and Employee resigns
within 90 days after the diminishment becomes effective, or if Employee is
ordered to relocate permanently to any location outside of the Chicago
metropolitan area and employee declines and is terminated, Employee shall be
entitled to Employee's normal salary, and health insurance benefits for a
one-year period following his resignation or termination and a bonus equivalent
to 50% of his base salary in effect at the time of his resignation or
termination. Notwithstanding anything to the contrary in any of Employee's
option agreements, Employee's unvested options which would otherwise vest
during a two year period following the effective date of the Change in Control
shall automatically vest in the event of a Change in Control.
If Employee dies, TSC must continue Employee's normal salary, bonus and health
insurance benefits for a period of one year following the date of his death.
Salary and bonus continuation will be paid to Employee's designated
beneficiary.
If Employee becomes permanently disabled and unable to continue to work, at
TSC, TSC must continue Employee's normal salary, bonus and health insurance
benefits for a period of one year following the date of his permanent
disability.
Employee may terminate his employment upon giving TSC 90 days prior written
notice. Upon receiving notice, TSC may waive its rights under this paragraph
and make Employee's termination effective immediately or anytime before the 90
day notice period ends.
Not withstanding the forgoing, if eLoyalty Corporation does not become subject
to the reporting requirements under the Securities Exchange Act of 1934, as
amended, on or before [December 31, 2000], and thereafter employee resigns, then
for a period of one year after such resignation TSC must continue Employee's
normal salary and health insurance benefits unless Employee begins employment
with another employer during such time, in which case TSC's obligations shall
cease.
4. SALARY: As compensation for his services, TSC shall pay Employee a base
salary in 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. BONUSES: TSC may elect to pay Employee annual bonuses. Payment of such
bonuses, if any, shall be at the sole discretion of TSC.
6. EMPLOYEE BENEFITS: During the Term of Employment, Employee shall be
entitled to participate in such employee benefit plans, including group
pension, life and
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health insurance and other medical benefits, and shall receive all other fringe
benefits as TSC may make available generally to its Senior 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;
(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 a period of one year following his termination of employment for
any reason, for himself or as an agent, partner or employee of any person, firm
or corporation, 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 one year period preceding his termination of employment;
(d) During a one 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
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employee's contractual and fiduciary obligations to serve TSC's interests with
undivided loyalty;
(e) For one year 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. Employee and TSC agree to reimburse the prevailing party for all
costs and expenses, including reasonable attorneys' fees incurred by the
prevailing party in connection with the enforcement of either party's' 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 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. 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. 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.
12. 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.
13. 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.
14. APPLICABLE LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
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TECHNOLOGY SOLUTIONS COMPANY TIMOTHY J. CUNNINGHAM
By: /s/ Kelly Conway /s/ Timothy J. Cunningham
-------------------------- -----------------------------
Position: CEO eLoyalty Senior Vice President and Chief
-------------------- Financial Officer of eLoyalty
Corporation
Date: 11/15/99 Date: 11/15/99
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