Employment Agreement - Technology Solutions Co. and Mark Kuchel
EMPLOYMENT AGREEMENT
TECHNOLOGY SOLUTIONS COMPANY, a Delaware corporation doing business as
TSC, and MARK KUCHEL ("Employee") enter into this Employment Agreement
("Agreement") as of March 14, 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 a Senior Vice
President. Employee shall have the responsibilities, duties and authority of a
Senior Vice President of TSC, and shall, at the direction of TSC's management,
participate in the administration and execution of TSC's policies, business
affairs and operations. 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 Section 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. TSC must,
however, for a one year period following the effective date of the termination,
unless Employee is terminated for Serious Misconduct, continue Employee's base
salary on the termination date ("current Salary") and health insurance benefits.
If Employee begins employment with another employer during the one year period,
Employee's salary shall be reduced by the amount of money Employee earns from
the other employer. Additionally, Employee's health insurance benefits shall
terminate if and when Employee is re-employed before the end of the one year
period.
(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.
(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
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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
termination benefits as set forth and qualified in Section 3.(a) above. (A
change in Control is defined as (i) the acquisition by any individual, entity or
group, of beneficial ownership (within the meaning of Rule 13d-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 holding 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 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.
(e) 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.
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.
5. BONUS AND STOCK OPTIONS:
(a) Employee shall participate in TSC's Vice Presidents Compensation
Program, as amended from time to time, which includes base salary, annual bonus,
and equity.
(b) Subject to the ratification of the TSC Board of Directors
Compensation Committee, Employee shall be granted 40,000 stock options as of the
date of this Agreement to be issued under TSC's 1992 Stock Option Plan.
(c) Employee shall receive a unvested deferred compensation which shall
vest if and when employee remains employed for 26 months from his first date of
employment with 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 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
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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 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 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 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 OF BUSINESS CONDUCT: 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. 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
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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.
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 Jams/Endispute, Inc. 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.
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19. Employee acknowledges that he has read, understood and accepts the
provisions of this Agreement.
Technology Solutions Company Mark Kuchel
By: /s/ AM Landey /s/ Mark D. Kuchel
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Position: Sr. VP
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Date: May 13, 1997 May 5, 1997
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