EXHIBIT 10(o)
MANAGEMENT CONSULTING SERVICES
EMPLOYMENT AGREEMENT
This Agreement (the "Agreement") between the Company (as defined
below) and Xxxx X. Xxxxxxxxxxx ("Employee") is entered into effective as of the
date set forth on the signature page hereof.
1. General. In consideration of, among other things, EDS entering into a
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Restricted Stock Unit Agreement with the Employee pursuant to which EDS
granted to the Employee Restricted Stock Units under the Electronic Data
Systems Corporation Stock Incentive Plan (the "SIP"), the Company and the
Employee entered into a Management Consulting Services Employment
Agreement, dated as of August 31, 1995, pursuant to which the Company and
Employee agreed to the terms of Employee's employment with the Company for
the period commencing on August 31, 1995 and ending on August 31, 2000.
The Company and Employee are hereby agreeing to the terms of the Employee's
employment with the Company effective September 1, 2000 (the "Effective
Date").
2. Certain Definitions.
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a. "EDS" shall mean Electronic Data Systems Corporation, a Delaware
corporation, and all of its direct and indirect subsidiaries and
affiliated entities (including the Company).
b. "A.T. Xxxxxxx" shall mean the Company, and all of its direct or
indirect subsidiaries.
c. The "Company" shall mean A.T. Xxxxxxx, Inc., a Delaware corporation
and subsidiary of Electronic Data Systems Corporation.
d. The "Board of Directors" or the "Board" shall mean the Board of
Directors of the Company.
e. "Confidential Information" shall mean all business information,
technological information, intellectual property, (including, but not
limited to, methodologies, procedures, manuals, directories, software,
data files, know-how and management tools), trade secrets, client
lists and other information belonging to EDS or relating to EDS's
business, technology or customers, or belonging to A. T. Xxxxxxx or
relating to A. T. Kearney's business, technology or clients other than
information which Employee can demonstrate is generally available to
the public otherwise than through a breach by Employee of Employee's
obligations hereunder.
f. The term "participate" shall mean lending one's name to, acting as a
consultant or advisor to, being employed by, or acquiring any direct
or indirect interest in any
business or enterprise, whether as a stockholder, lender, partner,
officer, director, employee, investor or otherwise (other than by
ownership of less than five percent of the stock of a publicly-held
corporation).
g. "Cause" shall mean (i) intentional or knowing refusal to perform
Employee's lawful duties; (ii) material breach of this Agreement;
(iii) material misconduct; (iv) material failure to follow the
Company's policies, directives or orders applicable to Company
employees holding comparable positions; (v) intentional destruction or
theft of A. T. Xxxxxxx or EDS property or falsification of A. T.
Xxxxxxx or EDS documents; (vi) conviction of a felony or any crime
involving moral turpitude; or (vii) material violation of the EDS Code
of Conduct.
h. "Management Consulting" shall mean researching, developing, marketing
or providing professional management consulting services, including
without limitation management consulting services related to business
or marketing strategy, technology assessment, organizational
effectiveness, marketing, sales, manufacturing, operations, physical
distribution, logistics, executive search, business process re-
engineering, strategic sourcing, information technology or litigation
support.
3. Employment.
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a. Provided that Employee is employed by the Company as of the Effective
Date, on the Effective Date, the Company agrees to employ Employee and
Employee agrees to accept employment with the Company upon the terms
as described in this Agreement. On the Effective Date, Employee will
be employed by the Company with the title of Chief Executive Officer
of the Company and, under the direction and subject to the control of
the Board of Directors, shall be responsible for the business and
affairs of the Company and have general executive charge, management
and control of the Company, with all such powers with respect to such
business, affairs, properties and operations as may be reasonably
incident to such responsibilities.
b. Employee understands that this Agreement shall terminate and be of no
further force and effect in the event that Employee's employment with
the Company is terminated for any reason prior to the Effective Date.
4. Duration of the Agreement. Employee understands that, as of the Effective
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Date, Employee's employment with the Company is terminable at will and not
for any specified duration. Either the Company or Employee may terminate
the employment relationship with or without Cause at any time with or
without prior notice. Employee's obligations under Paragraphs 6, 7, 9, 12
and 13 shall survive any termination of employment.
5. Compensation. As compensation for all services rendered to the Company, in
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whatever capacity rendered, the Company agrees to provide Employee the
following compensation package:
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a. As of the Effective Date, Employee's initial annual base salary shall
be not less than Employee's annual base salary in effect as of August
31, 2000, but may thereafter be adjusted at the Company's discretion.
Such base salary shall be payable in accordance with the then current
payroll practices of the Company.
b. Employee will be eligible to participate in the Company's performance
compensation arrangements, as may be in effect from time to time.
c. Employee will be eligible to participate in all Company employment
benefits generally provided from time to time to full-time employees
and normal officer perquisites approved by the Board of Directors of
the Company, subject to satisfying any eligibility requirements, and
subject to any other terms or conditions established by the Board of
Directors or other A. T. Xxxxxxx governing body. Employee
acknowledges that to the maximum extent permitted by law employment
benefits provided by the Company are subject to change in the
discretion of the Company.
6. Disclosure of Confidential Information. During and following Employee's
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employment with the Company, Employee agrees not to disclose or use any
Confidential Information, other than in connection with authorized
activities conducted in the course of Employee's employment with the
Company without the written approval of the Company. Also, within ten days
of the termination of Employee's employment for any reason, Employee shall
return to the Company all property, documents and other tangible items
(including, but not limited to methodologies, procedures, manuals,
computers, directories, software, data, data bases and client lists),
including all complete or partial copies thereof (whether in physical or
electronic format) belonging or relating to A. T. Xxxxxxx or its clients or
to EDS or its clients, obtained during Employee's employment that are in
Employee's possession, custody or control.
7. Non-Solicitation/No-Hire. If Employee's employment with the Company is
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terminated for Cause or Employee voluntarily terminates Employee's
employment, Employee agrees not to, for a period of one year following
Employee's termination of employment, directly or indirectly, including
through one or more affiliates, conduct or participate in:
a. Hiring, attempting to hire or assisting any other person in hiring or
attempting to hire, or inducing to leave the employ of A. T. Xxxxxxx
or EDS, any employee or officer of A. T. Xxxxxxx or EDS, any person
who was an A. T. Xxxxxxx or EDS employee or officer within the six-
month period prior to the termination of Employee's employment, or any
contractor of A. T. Xxxxxxx or EDS who performed services for A. T.
Xxxxxxx or EDS in the six-month period prior to the termination of
Employee's employment;
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b. Soliciting the business of either: (i) any A. T. Xxxxxxx or EDS
customer to whom Employee rendered services during the 12-month period
prior to termination of Employee's employment (a "Specific Customer");
or (ii) any person or entity whose business Employee (on behalf of A.
T. Xxxxxxx or EDS or otherwise) solicited by multiple contacts during
the six-month period prior to such termination (a "Specific Contact");
or
c. Any activity for any Specific Client or Specific Contact which is the
same as or similar to those activities Employee performed for such
Specific Client during the three-year period prior to the Employment
Termination Date, or proposed to perform for such Specific Contact
during the one-year period prior to the termination of Employee's
employment.
Employee agrees that if Employee acts in violation of this Paragraph 7, the
number of days Employee is in such violation will be added to any periods
of limitation on Employee's activities specified herein. In addition,
Employee agrees that during the duration of this Agreement and during the
period of limitation on Employee's activities specified in this Paragraph
7, Employee shall promptly deliver a true and correct copy of this
Agreement to any prospective employer of Employee.
If (and only if) EDS elects to discontinue all of its Management Consulting
operations conducted by A. T. Xxxxxxx as an entirety and after making such
election does not sell, transfer or otherwise convey any of the assets or
liabilities of such Management Consulting operations to any other party
(other than any furniture, fixtures and equipment which will not be used by
such party in the conduct of a Management Consulting business), this
Paragraph 7 shall be of no further force and effect from and after the date
such Management Consulting operations completely cease.
8. Development of Methodologies. During the course of Employee's employment
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with the Company, Employee may work on or be a part of the development of
management consulting methodologies, technologies, tools or other systems
for A. T. Xxxxxxx or EDS. Employee understands and agrees that any and all
methodologies, technologies, tools and other systems developed by employees
of A. T. Xxxxxxx (including methodologies, technologies, tools and other
systems developed by Employee) and the methodologies, technologies, tools
and other systems and business information of A. T. Xxxxxxx and EDS, shall
be, and remain, the sole and absolute property of A. T. Xxxxxxx and/or EDS
and that Employee shall acquire no rights to any of these.
9. Assignment of Inventions and Copyrights. In further consideration of
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employment under this Agreement, Employee agrees that any and all
copyrights, inventions, improvements, discoveries or processes authored,
developed or discovered by Employee as a result of Employee's employment
with the Company shall be fully disclosed to the Company and the same shall
be the sole and absolute property of A. T. Xxxxxxx; and upon the request of
A. T. Xxxxxxx, Employee shall execute, acknowledge and deliver such
assignments and other documents as A. T. Xxxxxxx may consider necessary or
appropriate to vest all rights, titles
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and interests therein to A. T. Xxxxxxx. Employee further agrees that A. T.
Xxxxxxx may use Employee's image as appropriate in the conduct of its
business.
In addition, Employee represents and agrees that, in consideration of
Employee's prior employment with A. T. Xxxxxxx, any and all copyrights,
inventions, improvements, discoveries or processes authored, developed or
discovered by Employee as a result of Employee's employment with A. T.
Xxxxxxx have been fully disclosed to Kearney and the same are now the sole
and absolute property of A. T. Xxxxxxx; and upon the request of A. T.
Xxxxxxx, Employee shall execute, acknowledge and deliver such assignments
and other documents as A. T. Xxxxxxx may consider necessary or appropriate
to vest all rights, titles and interests therein to A. T. Xxxxxxx.
10. Exclusive Service. Employee agrees to devote Employee's full time and best
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efforts to the performance of Employee's employment under this Agreement.
While employed by the Company, Employee agrees not to engage in any other
employment or business venture without the prior consent of the Company,
unless to do so would in no way affect or conflict with the performance of
Employee's duties for the Company. During the period Employee is employed
by the Company Employee may (i) with the permission of the Board of
Management of the Company, serve on corporate, civic or charitable boards
or committees; provided, however, that no such permission shall be required
for service on the board of any corporation owned solely by the Employee's
immediate family members, (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions and (iii) manage personal
investments, so long as such activities do not materially interfere with
the performance of the Employee's responsibilities as an employee of the
Company in accordance with this Agreement.
11. Monies Owed to the Company. Upon the termination of Employee's employment
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from the Company, Employee agrees to authorize the Company to deduct from
Employee's final wages or other monies due to Employee any debts or
financial obligations owed to the Company or EDS by Employee.
12. Arbitration. Subject to Paragraph 14, Employee agrees that any controversy
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or dispute between Employee and the Company, A. T. Xxxxxxx, or EDS relating
to or arising out of Employee's employment or the termination thereof
(other than disputes regarding an alleged violation of Paragraphs 6, 7 or 9
of this Agreement) including any claim of wrongful termination,
constructive termination, employment discrimination, or workplace torts,
but excluding disputes regarding an alleged violation of Paragraphs 6, 7 or
9 of this Agreement, shall be fully and finally resolved pursuant to the
Dispute Resolution and Arbitration Procedures attached as Addendum 1 and
fully incorporated herein.
13. Remedies. Employee understands and agrees that the Company, A. T. Xxxxxxx
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and EDS will be irreparably damaged in the event that the provisions of
paragraphs 6, 7 or 9 of this Agreement are violated. Employee agrees that
each of the Company and EDS shall be entitled (in addition to any other
remedy to which it may be entitled, at law or in equity) to
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an injunction to redress breaches of Paragraphs 6, 7 and 9 of this
Agreement and to specifically enforce the terms and provisions thereof.
14. Enforcement. If the scope of any provision contained in this Agreement is
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too broad to permit enforcement of such provision to its full extent, then
such provision shall be enforced to the maximum extent permitted by law,
and Employee hereby consents that such provision may be reformed or
modified accordingly, and enforced as reformed or modified, in any
proceeding brought to enforce such provision.
15. Separability. Subject to the provisions of Paragraph 14, whenever
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possible, each provision of this Agreement will be interpreted in such a
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, to the extent of such prohibition or
invalidity, shall be deemed not to be part of this Agreement, and shall not
invalidate the remainder of such provision or the remaining provisions of
this Agreement.
16. Governing Law. Except as specifically provided in Paragraph 12 above or in
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the Dispute Resolution Arbitration Procedures attached as Addendum 1, any
action or proceeding arising out of or relating to this Agreement shall be
governed by and interpreted under the laws of Illinois, except for actions
or proceedings arising out of the alleged violations of Paragraph 7, which
shall be governed by and interpreted under the laws of the state in which
Employee had Employee's principal Company office at the time of termination
from employment.
17. Amendments. This Agreement may not be modified or amended except by a
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written instrument executed by Employee and the Chairman of the Board of
the Company.
18. Third Party Beneficiary. EDS shall be a third party beneficiary of this
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Agreement, entitled to enforce its rights set forth herein.
19. Assignment.
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a. This Agreement is personal to the Employee and without the prior
written consent of the Company shall not be assignable by the Employee
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the
Employee's legal representatives.
b. This Agreement may be assigned by the Company or any of its assignees
to any of their respective affiliates or to a successor to all or a
substantial portion of the assets or business of the Company. This
Agreement shall inure to the benefit of the Company.
20. Location of Services; Dual Contracts. In the event Employee has
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substantial responsibilities in more than one jurisdiction, the Company
will consider in good faith a request of Employee to enter into a dual
contract relationship with the Company and the appropriate affiliate of
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the Company in the jurisdiction where Employee is providing such services
on mutually agreeable terms and conditions.
21. Entire Agreement. This Agreement, together with the Management Consulting
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Services Agreement dated as of August 31, 1995 between Employee and the
Company (the "Original Agreement"), the Non-Competition Agreement among
Employee, Electronic Data Systems Corporation and the Company dated August
31, 1995, and the Restricted Stock Unit Agreement, constitutes the parties'
entire agreement, and supersedes and prevails over all other prior
agreements, understandings or representations by or between the Company,
EDS, Kearney or any of their respective successors, on the one hand, and
the Employee, on the other hand, whether oral or written, with respect to
the subject matter herein.
22. Original Agreement. If during the period commencing on the date hereof and
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ending on August 31, 2000, the terms of this Agreement conflict or are
inconsistent with the Original Agreement, the terms of the Original
Agreement shall govern. Provided that Employee's employment with the
Company shall not have been terminated prior to the Effective Date, as of
the Effective Date, the terms of this Agreement shall govern in the event
the terms of this Agreement conflict or are inconsistent with the Original
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth below:
DATE: February 28, 1998
EMPLOYEE
/S/ XXXX X. XXXXXXXXXXX
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XXXX X. XXXXXXXXXXX
A.T. XXXXXXX, INC.
By: /s/ XXXX X. XXXXXXXXX
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Name: XXXX X. XXXXXXXXX
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Title: VICE CHAIRMAN, EDS
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