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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
Technology Solutions Company, a Delaware corporation doing business as
TSC, and Xxxxx X. Xxxxxxx ("Employee") enter into this Employment Agreement
("Agreement") as of October 20, 1998.
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 - Group Executive. Employee shall have such responsibilities, duties
and authority as the Group President may reasonably designate and are
commensurate with the position of Senior Vice President - Group Executive.
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 by 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 one year 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 one year payable when annual bonuses are paid;
and continue his health insurance benefits until the end of the one 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 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.
(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 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
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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 himself or as an agent, partner or employee of any person, firm
or corporation: (i) for a period of one year 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 one year following any involuntary
termination for any reason, or for a period of six months following any
voluntary termination 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 one year 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 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 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.
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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: 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 000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx. Xxxxxxx, Xxxxxxxx
00000 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, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
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)
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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.,
Three First National Plaza, 00 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000. 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 Employee
By: /s/ XXXX X. XXXXXX /s/ XXXXX X. XXXXXXX
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Position: CEO
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Date: October 20, 1998 Date: October 20, 1998
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