EXHIBIT 10.5
EMPLOYMENT AGREEMENT
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Diamond Technology Partners, Inc. ("Diamond Technology") and Xxxxxxxxxxx
X. Xxxxxxx ("Employee") enter into this Employment Agreement ("Agreement") dated
February 1, 1994 (the "Effective Date").
In consideration of the agreements and covenants contained in the
Agreement, Diamond Technology and Employee agree as follows:
1. Employment Duties. Diamond Technology shall employ Employee as
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an officer of Diamond Technology and be identified within the organization as a
"Partner." Employee shall have such responsibilities, duties and authority,
consistent with those of an executive employee, as may be assigned to him/her by
Diamond Technology's management, officers and partners ("Management") and agrees
to perform such duties as Diamond Technology may from time-to-time request. In
addition, Employee shall, at the direction of Management, participate in the
administration and execution of Diamond Technology's policies, business affairs,
and operations. Employee shall perform faithfully the duties assigned to him/her
and shall devote his/her full and undivided time and attention and his/her best
efforts to the business of Diamond Technology.
2. Salary. As compensation for Employee's services, Diamond
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Technology shall initially credit to Employee a level of base compensation at
the annual rate listed in Exhibit A to this Agreement: a portion of the
Employee's base compensation will be paid to him/her at Diamond Technology's
regular executive payroll intervals, and the balance will be deferred and the
payment thereof will be subject to various qualifications and conditions as set
forth in the Diamond Technology's Partners' Operating Agreement dated Xxxxx 00,
0000 ("xxx Partners' Operating Agreement"). Employee's base compensation shall
be subject to annual review and may, in accordance with the Partners' Operating
Agreement be adjusted at the time of such reviews or at any other time or times
according to Employee's responsibilities, capabilities and performance.
3. Bonus. Diamond Technology may elect to pay annual bonuses. It
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is presently contemplated that Partners subject to a deferral of a portion of
salary will not be eligible to earn bonuses. The decision to pay any bonuses
and the actual payment of such bonuses, if any, shall be at the sole discretion
of Diamond Technology.
4. Employee Benefits. During the period of his/her employment,
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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 such other fringe benefits, as Diamond Technology may make
available generally to Partners.
5. Business Expenses. Diamond Technology shall reimburse Employee
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for all reasonable and necessary business expenses incurred by Employee in
performing his/her duties. Employee shall provide Diamond Technology with
supporting documentation sufficient to satisfy reporting requirements of the
Internal Revenue Service and Diamond Technology. Diamond Technology's
determination as to reasonableness and necessity shall be final.
6. Non-Disclosure and Non-Competition. Employee acknowledges that
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the successful marketing and development of Diamond Technology's professional
services and products requires substantial time and expense. Such efforts
utilize and generate valuable confidential and proprietary information, of which
Employee will obtain knowledge. As used herein, "Confidential Information"
means any information of Diamond Technology that Diamond Technology considers to
be proprietary and treats as confidential or information of any third party that
Diamond Technology is under an obligation to keep confidential, including, but
not limited to, the following: inventions, products, business strategies,
plans, proposals, deliverables, prospect and customer lists, methodologies,
training materials, computer software, documents, models, source code, designs,
know how, techniques, systems, processes, works of authorship, projects, plans,
proposals and flow charts, and listings of any or all of the foregoing. All
Confidential Information is and shall at all times remain the exclusive property
of Diamond Technology. Confidential Information does not include: (i) inform-
ation that at the time of disclosure is in the public domain through no fault
of Employee's; (ii) information received from a third party outside of Diamond
Technology that was disclosed without a breach of any confidentiality
obligation; (iii) information approved for release by written authorization of
Diamond Technology; or (iv) information that may be required by law or an order
of any court, agency or proceeding to be disclosed. Employee agrees to undertake
the following obligations, which he/she acknowledges to be reasonably designed
to protect Diamond Technology's legitimate business interests without
unnecessarily or unreasonably restricting Employee's post-employment
opportunities:
(a) Employee agrees that he/she will not at any time, whether
during or after the cessation of his/her employment, reveal to any person or any
entity any of the Confidential Information, except, and only to the extent, as
may be required in the ordinary course of performing Employee's assigned duties
as an employee of Diamond Technology, and Employee agrees to keep secret, and
take all necessary precautions against disclosure of, all Confidential
Information and all matters entrusted to him/her and not to use or attempt to
use any Confidential Information in any manner that may cause injury or loss, or
may be calculated to cause injury or loss, whether directly or indirectly, to
the Company or its clients;
(b) Employee agrees that during his/her employment he/she shall
not take, use or permit to be used any notes, memoranda, reports, lists,
records, drawings, sketches, specifications, software programs, data,
documentation or other materials of any nature relating to any matter within the
scope of the business of Diamond Technology or
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concerning any of its dealings or affairs otherwise than for the benefit of
Diamond Technology;
(c) Upon cessation of his/her employment relationship with Diamond
Technology, Employee shall deliver to Diamond Technology all Confidential
Information and other materials in his/her possession or delivered to him/her by
Diamond Technology, including but not limited to computer programs, files,
notes, records, memoranda, reports, lists, drawings, sketches, specifications,
data, charts, and other documents, materials and things ("Materials"), whether
or not containing Confidential Information, prepared by Employee in connection
with his/her employment by Diamond Technology, it being agreed that all
Materials shall be and remain the sole and exclusive property of Diamond
Technology;
(d) Without limiting the obligations of paragraph 6(c), Employee
agrees that while Employee is employed by Diamond Technology and for a period of
eighteen months following cessation of his/her employment relationship with
Diamond Technology, he/she will not, whether alone or as owner, partner,
officer, director, consultant, agent, employee independent contractor, or
stockholder of any firm, corporation or other commercial enterprise, directly or
indirectly solicit engagements with: (i) any client of Diamond Technology for
whom Diamond Technology performed services within the one year period preceding
his/her cessation of employment, or (ii) any current client prospect of Diamond
Technology for whom Employee directly or indirectly assisted in the preparation
or submission of a proposal made by Diamond Technology to such client prospect
during the one year period preceding his/her cessation of employment, unless
Diamond Technology acknowledges in writing its intent not to further pursue such
client prospect; Employee shall, however, be permitted to own securities of any
public company not in excess of five percent (5%) of any class of such
securities and to own stock, partnership interests or other securities of any
non-public entity not in excess of five percent (5%) of any class of such
securities, and such ownership shall not be considered to be in competition with
Diamond Technology;
(e) While employed and during the eighteen month period immediately
following cessation of Employee's employment relationship with Diamond
Technology for any reason, Employee shall not, directly or indirectly, solicit
any employee of Diamond Technology to work for any person, partnership or entity
other than Diamond Technology, or engage in any activity that would cause any
employee to violate any agreement with Diamond Technology, or dissuade, or
attempt to dissuade, any such employee from faithfully discharging such
employee's contractual and fiduciary obligations to serve Diamond Technology's
interests with undivided loyalty.
7. Remedies. Employee recognizes and agrees that a breach of any or all
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of the provisions of paragraph 6 will constitute immediate and irreparable harm
to Diamond Technology for which damages cannot be readily calculated and for
which damages are an inadequate remedy. Accordingly, Employee acknowledges that
in addition to any an all
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remedies at law, Diamond Technology shall be entitled to specific performance or
injunctive or other equitable relief to prevent the violation of Employee's
obligations under this Agreement.
8. Intellectual Property. During the employment period, Employee
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shall disclose immediately to Diamond Technology all ideas, inventions and
business plans that he/she makes, conceives, discovers or develops during the
course of his/her employment with Diamond Technology, including but not limited
to any inventions, modifications, discoveries, developments, improvements,
computer programs, processes, products or procedures (whether or not protectable
upon application by copyright, patent trademark, trade secret or other
proprietary rights)("Work Product") that: (i) relate to the business of Diamond
Technology or any customer or supplier to Diamond Technology or any of the
products or services being developed, manufactured, sold or otherwise provided
by Diamond Technology or that may be used in relation therewith; or (ii) result
from tasks assigned to Employee by Diamond Technology; or (iii) result from the
use of the premises or personal property (whether tangible or intangible) owned,
leased or contracted for by Diamond Technology. Employee agrees that any Work
Product shall be the property of Diamond Technology and, if subject to
copyright, shall be considered a "work made for hire" within the meaning of the
Copyright Act of 1976, as amended (the "Act"). If and to the extent that any
such Work Product is found as a matter of law not to be a "work made for hire"
within the meaning of the Act, Employee expressly assigns to Diamond Technology
all right, title and interest in and to the Work Product, and all copies
thereof, and the copyright, patent, trademark, trade secret and all their
proprietary rights in the Work Product, without further consideration, free from
any claim, lien for balance due or rights of retention thereto on the part of
Employee.
Employee agrees that upon disclosure of Work Product to Diamond
Technology, Employee will, during his/her employment and at any time thereafter,
at the request and cost of Diamond Technology, execute all such documents and
perform all such acts as Diamond Technology or its duly authorized agents may
reasonably require: (i) to apply for, obtain and vest in the name of Diamond
Technology alone (unless Diamond Technology otherwise directs) letters patent,
copyrights or other analogous protection in any country throughout the world,
and when so obtained or vested to renew and restore the same; and (ii) to defend
any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection.
In the event that Diamond Technology is unable, after reasonable effort,
to secure Employee's signature on any letters patent, copyright or other
analogous protection relating to Work Product, whether because of Employee's
physical or mental incapacity or for any other reason whatsoever, Employee
hereby irrevocably designates and appoints Diamond Technology and its duly
authorized officers and agents as his/her agent and attorney-in-fact, to act for
and on his/her behalf to execute and file any such application or applications
and to do all other lawfully permitted acts to further the prosecution and
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issuance of letters patent, copyright and other analogous protection with the
same legal force and effect as if personally executed by Employee.
9. Costs and Expenses of Enforcement. Employee agrees to reimburse
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Diamond Technology for all costs and expenses, including reasonable attorneys'
fees, incurred by Diamond Technology in connection with the enforcement of its
rights under any provision of this Agreement; provided, however, that Diamond
Technology agrees to seek reimbursement only for matters, including acts or
omissions (whether direct or indirect), done knowingly, willfully or
intentionally in disregard of Employee's obligations under this Agreement.
10. Indemnity. Provided that Employee performs all of his duties and
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obligations under this Agreement, Diamond Technology agrees to defend, indemnify
and hold Employee harmless from and against all damages, liability and expenses,
including reasonable attorney's fees, arising as a result of claims brought
against Employee by his/her latest employer preceding his/her employment with
Diamond Technology ("Previous Employer"): (i) alleging any breach, for the
benefit of Diamond Technology, of Employee's obligations to the Previous
Employer with respect to Confidential Information of the Previous Employer; (ii)
based upon Diamond Technology's hiring of Employee; or (iii) that are deemed by
Diamond Technology, in its sole discretion, to be frivolous or harassing.
Notwithstanding the foregoing, Diamond Technology shall have no indemnification
obligations under this Agreement or otherwise in respect of any willful or
intentional breach of the Employee's obligations to the Previous Employer with
respect to Confidential Information of the Previous Employer.
11. Assignment. Employee acknowledges that the services to be rendered
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pursuant to this Agreement are unique and personal. Accordingly, Employee may
not assign any of his/her rights or delegate any of his/her duties or
obligations under this Agreement. Diamond Technology may assign its this
Agreement to its successors or assigns, or to a subsidiary or to a purchaser or
transferee of all, or substantially all, of the assets of Diamond Technology,
and all covenants and agreements of Employee under this Agreement shall inure to
the benefit of and be enforceable by such successors, assigns, subsidiaries,
purchasers or transferees.
12. Notices. All notices hereunder shall be in writing. Notices
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intended for Diamond Technology shall be sent by registered or certified mail
addressed to Diamond Technology at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, or its current principal office, and notices intended
for Employee shall be either delivered personally to him/her or sent by
registered or certified mail addressed to his/her last known address.
13. Entire Agreement. This Agreement constitutes the entire agreement
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between Diamond Technology and Employee with respect to the subject matter
hereof and supersedes any and all other prior or contemporary oral or written
representations or
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agreements between the parties regarding such subject matter; however, it is
mutually acknowledged that the parties may enter into a Partners' Operating
Agreement governing the relationships among the Partners, including certain
matters relating to compensation and to the payment of the deferred portion of
base compensation. Subsequent to the Effective Date, this Agreement specifically
supersedes any prior non-disclosure agreement executed by Employee; provided,
however, that the terms and conditions of any such prior agreement remain in
full force and effect for the period between execution of such agreement and the
Effective Date of this Agreement. Neither Employee nor Diamond Technology may
modify this Agreement by oral agreements, promises or representations. The
parties may modify this Agreement only by a written instrument executed by both
parties.
14. Applicable Law. This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of Illinois. Diamond Technology and
Employee consent to jurisdiction and venue only in the Circuit Court of Xxxx
County, Illinois, or the Federal District Court for the Northern District of
Illinois.
15. Severability. Employee acknowledges that the type and periods of
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restriction imposed in the provisions of this Agreement are fair and reasonable
and are reasonably required for the protection of Diamond Technology and the
goodwill associated with the business of Diamond Technology. Each provision
herein shall be treated as a separate and independent clause, and the
unenforceability of any one clause shall in no way impair the enforceability of
any of the other clauses herein. If any provision contained in this Agreement
shall for any reason be held to be prohibited by, or invalid under, applicable
law, or to be excessively broad as to scope, activity or subject so as to be
unenforceable at law, such provision shall be construed to be ineffective only
to the extent of such prohibition without invalidating the remainder of such
provision or the remaining provisions of this Agreement or, in the case of a
provision found to be excessively broad, by limiting and reducing such provision
so as to permit such provision to be enforceable to the maximum extent
compatible with the applicable law as it shall then appear.
16. Waiver. The failure of Diamond Technology to exercise any right
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hereunder shall not operate or be construed as a waiver of any right hereunder.
Employee's obligations under this Agreement shall survive the cessation of
employment regardless of the manner of such termination and shall be binding on
Employee's heirs, executors, administrators and legal representatives.
17. No Term of Employment. As revised, nothing in this Agreement shall
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be deemed to create any term of employment, it being expressly understood and
agreed that Employee's employment is at will and that either party may terminate
such employment at any time.
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18. Acknowledgement. Employee acknowledges that he/she has read and
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understood, and accepts, the provisions of this Agreement.
EMPLOYEE
/s/ Xxxxxxxxxxx X. Xxxxxxx
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Xxxxxxxxxxx X. Xxxxxxx
DIAMOND TECHNOLOGY PARTNERS, INC.
By: [SIGNATURE APPEARS HERE]
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT
BASE SALARY: $500,000; subject to paragraph D of the Partners'
Operating Agreement incorporated herein by this reference.
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AMENDMENT TO EMPLOYMENT AGREEMENT
BY AND BETWEEN
DIAMOND TECHNOLOGY PARTNERS, INC.
AND EMPLOYEE
Diamond Technology Partners, Inc. ("Diamond Technology") and Xxxxxxxxxxx
X. Xxxxxxx ("Employee") enter into this Amendment to Employment Agreement
("Amendment").
In consideration of the agreements and covenants contained in the
Employment Agreement and this Amendment, and to effect Diamond Technology's
indemnification of Employee as herein set forth, Diamond Technology and Employee
agree as follows:
1. Paragraph 10 of the Agreement, entitled "Indemnity" is hereby
stricken and the following language is hereby substituted in its
stead:
Indemnity. Provided that Employee performs all of his duties and
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obligations under this Agreement, Diamond Technology agrees to
defend, indemnify and hold Employee harmless from and against all
damages, liability and expenses, including reasonable attorney's
fees, arising as a result of: (a) claims brought against Employee by
his/her latest Employer preceding his/her employment with Diamond
Technology ("Previous Employer") (i) alleging any breach, for the
benefit of Diamond Technology, of Employee's obligations to the
Previous Employer with respect to Confidential Information of the
Previous Employer; (ii) based upon Diamond Technology's hiring of
Employee; or (iii) that are deemed by Diamond Technology, in its
sole discretion, to be frivolous or harassing; or (b) claims brought
by any client of Diamond Technology alleging the breach of any duty
owed by Diamond Technology or Employee to such client.
Notwithstanding the foregoing, Diamond Technology shall have no
indemnification obligations: (x) under clause (a) of the preceding
sentence of this Paragraph 10, or otherwise, in respect of any
willful or intentional misconduct or breach of the Employee's
obligations to the Previous Employer with respect to Confidential
Information of the Previous Employer; or (y) under clause (b) of the
preceding sentence of this Paragraph 10, or otherwise, in respect of
any willful or intentional misconduct or breach by the Employee of
the Employee's obligations to Diamond Technology; or (z) arising
from or relating to any Employee action that is outside the scope of
his/her employment.
2. Acknowledgment. Employee acknowledges that he/she has read and
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understood, and accepts, the provisions of this Amendment.
Dated: August 19, 1994
EMPLOYEE
/s/ Xxxxxxxxxxx X. Xxxxxxx
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Xxxxxxxxxxx X. Xxxxxxx
DIAMOND TECHNOLOGY PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
AMENDMENT NUMBER TWO TO EMPLOYMENT AGREEMENT
BY AND BETWEEN
DIAMOND TECHNOLOGY PARTNERS, INC.
AND EMPLOYEE
This is an amendment ("Amendment"), dated as of November 30, 1994, to a
certain Employment Agreement dated February 1, 1994, between Diamond Technology
Partners, Inc. ("Diamond Technology") and Xxxxxxxxxxx X. Xxxxxxx ("Employee"),
as previously amended (the "Employment Agreement").
In consideration of the agreements and covenants contained in the
Employment Agreement and this Amendment and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Diamond Technology and Employee agree as follows:
1. The Employment Agreement is hereby amended by adding thereto a
new paragraph 18, which shall read as follows:
"18. Charitable Contributions.
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(a) Effective April 1, 1995, Employee will contribute in
each calendar year during his/her employment with Diamond Technology,
at least two percent (2%) of Employee's gross base compensation in
effect for the then current calendar year, to charities approved by
the Operations Committee (as defined in the Partners' Operating
Agreement). All such contributions will be made pursuant to policies
established from time to time by the Operations Committee. Employee
authorizes Diamond Technology to make any deductions, including,
without limitation, periodic deductions, from base compensation
payable to Employee, in accordance with such policies.
(b) The Operations Committee will approve charities on an
ongoing basis from time to time and will publish the list of approved
charities. Employee may request approval for charities not already on
the list of approved charities from the Operations Committee no later
than thirty (30) days prior to the end of any calendar year for
contributions made during that year.
(c) Diamond Technology will match, up to two percent (2%) of
Employee's gross base compensation, the amount of any contributions
made by, or directed to be made on behalf of, the Employee to any
colleges or universities where Diamond Technology recruits or intends
to recruit for new employees. The Operations Committee will maintain
and publish a list of such colleges and universities. The Operations
Committee may from time to time limit or eliminate Diamond
Technology's matching contribution obligation if it determines that
to do so would be in the best business interests of Diamond
Technology.
2. Acknowledgement. Employee acknowledges that he/she has read and
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understood, and accepts, the provisions of this Amemdment.
IN WITNESS WHEREOF, the undersigned have executed this Amendment Number Two
to Employment Agreement by and between Diamond Technology Partners, Inc. and
Employee as of the date first written above.
EMPLOYEE
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DIAMOND TECHNOLOGY PARTNERS, INC.
By:
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As its:
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