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EXHIBIT 10.1
MANAGEMENT
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the ____ day of ____________, 19__, by
and between SPR INC., a Delaware corporation ("Employer" or "Corporation") and
_______________________ ("Employee").
I. ACKNOWLEDGEMENTS OF THE PARTIES
A. Employer is presently engaged in the business of developing,
renovating, implementing and maintaining computer programs and software
products and is headquartered in Chicago, Illinois.
B. Employer desires to hire and retain Employee, who [is also a
holder of a significant amount of shares of the Corporation,] is a member of
the management team of the Employer. Employer and Employee, therefore, wish
to enter into an employment agreement (hereinafter "Agreement") which sets
forth the specific terms and conditions of Employee's employment with Employer.
C. Employee, in the course of his employment with Employer, will
frequently come into contact with Employer's clients to such an extent that he
might be able to control, in whole or in part, the business and relationships
between Employer and its clients and unless prevented from doing so could take
with him or otherwise appropriate such business and relationships.
D. Employee, during the course of his employment, will have
frequent and often close contact with Employer's corporate management staff,
Professional Technical Representatives, Account Managers, Technical Service
Managers, and other of Employer's staff and executive employees. Employee,
during the course of his employment, will also make frequent and often close
contact with prospective clients and prospective employees. Solely as a result
of Employee's position, he will gain confidential information concerning and
relating to the aforestated corporate management staff, Account Managers,
Professional Technical Representatives, other of Employer's staff and executive
employees, prospective clients and prospective employees, which information is
not generally available to Employer's competitors.
E. Employer will expend considerable time, money and other
resources recruiting, training, making instructions available to and
compensating its employees and potential employees, representatives and
contractors, and the loss of their services or potential services would
constitute a substantial and irreparable injury to Employer. Employer will
expend considerable time and money locating and establishing contacts and
business relationships with prospective clients, and the loss of the potential
benefits of such efforts would constitute a substantial and irreparable injury
to Employer.
F. Employee acknowledges that during the course of his
employment, he will have access to certain secret and confidential matters
belonging to Employer including, but not limited to, Employer's marketing and
financial plans and strategies, market surveys and analyses;
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Employer and customer technical information; Employer's financial statements,
personnel records, and other confidential books and records; private and
confidential discussions and discussions of the Board of Directors; plans and
strategies for new services and product development; employee and independent
contractor performance evaluations; contracts with customers, suppliers and
others; business opportunities; capital financing; litigation; lists of
customers and potential customers; promotional materials; internal operating
reports; employee and potential employee names and addresses; account
projections; customer strategy information; confidential employment and payroll
data; marketing information; employee manuals, recruiting manuals, personnel
policy manuals and expense policy manuals; billing reports, pricing information
and strategies; management methods and systems; contracts with clients,
subcontractors and others; client correspondence; resumes of existing and
potential employees; customer bids and proposals; customer expense manuals;
other of Employer's confidential books and records; client systems
documentation, information concerning talents and capabilities of client
personnel and other confidential and sensitive client information.
G. Employer will, in its business, develop commercially valuable
technical and non-technical information, the safeguarding of which, by holding
the same secret and confidential, is necessary and Employer must be protected
from the divulgence by Employee either directly or indirectly of any such
information.
H. Employer's relationship with its clients, its ongoing service
to them, and the protection of confidential, unique and secret information
belonging to both the Employer and its clients are vital to the continued
operation of the Employer's business. The divulgence of any of the above
stated information would constitute an irreparable injury to Employer and for
its clients.
I. Employee (1) acknowledges (a) that he has received and will
receive substantial and adequate additional monetary consideration and
benefits, pursuant to this Agreement for entry into this Agreement; (b) that
the terms of this Agreement were set by mutual negotiations between Employee
and Employer; and (c) that he understood the terms of this Agreement and agreed
to be bound by same at the time he accepted employment with Employer;
(2) understands that he need not accept employment with the Employer; that he
has freely chosen to enter into the terms of this Agreement because of his
desire to take advantage of the specific and unique employment opportunities
available with the Employer, and that entry into, adherence to and compliance
with this Agreement and its terms are conditions of his employment with
Employer. Employee acknowledges that the position which he is accepting with
the Corporation is one of great trust and confidence requiring on his part the
highest degrees of loyalty, trust, honesty and integrity.
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II. EMPLOYMENT
A. DUTIES. Employee shall serve as ____________________________
of the Corporation and in such position shall perform such executive duties
and functions as are assigned by the Employer. The specific title, function and
responsibilities of the Employee shall be designated by the Employer. Further,
the precise services which Employee shall perform for Employer or Employer's
clients may be extended or curtailed from time to time by Employer and Employee
shall, at all times, be subject to the orders, advice and direction of
Employer. Employee's compensation shall not be affected by any such change,
extension or curtailment of such services.
B. COMPENSATION AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT.
1. Salary. During the period of the Employee's
employment hereunder, Employer shall pay to the Employee a salary which shall
be established and may be reviewed periodically by the Employer. Compensation
of the Employee by salary payments shall not be deemed exclusive and shall not
prevent the Employee from participating in any other compensation or benefit
plan of the Employer. The salary payments (including any increased salary
payments) hereunder shall not in any way limit or reduce any other obligation
of the Employer hereunder, and no other compensation, benefit or payment
hereunder shall in any way limit or reduce the obligation of the Employer to
pay the Employee's salary hereunder.
2. Expenses. During the term of the Employee's
employment hereunder, the Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in
performing services hereunder, including all expenses of travel and living
expenses while away from home on business or at the request of and in the
service of the Employer, provided that such expenses are incurred and accounted
for in accordance with the policies and procedures presently established by the
Employer.
In the event that Employee is required by the Corporation to
relocate his residence to a different metropolitan area than that in which he
resides as of the date of this Agreement, the Employer shall promptly reimburse
Employee for all reasonable and necessary expenses related to the relocation,
which expenses shall include all realtor fees, moving and storage fees and
costs, the costs of travel and lodging for the Employee and his spouse for up
to two house-hunting trips, temporary lodging expenses for Employee and his
family during any wait required for the purchase and/or closing of a new home,
and the costs for the Employee to travel home to visit his family from the
relocated area up to once per month.
3. Other Benefits. The Employer shall provide and
maintain in full force and effect, and the Employee shall be entitled to
participate in, employee benefit plans and arrangements which are substantially
equivalent to those in effect on the date hereof in which the Employee
participates (including without limitation each pension and retirement plan and
arrangement, life insurance and health-and-accident plan and arrangement,
medical insurance plan, and disability plan). The Employer shall not make any
changes in such plans or arrangements which would materially and adversely
affect the Employee's rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all executives of the Employer and does not
result in a proportionately greater reduction in the rights of or benefits to
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the Employee as compared with any other executive of the Employer. The
Employee shall be entitled to participate in or receive benefits under any
employee benefit plan or arrangement made available by the Employer in the
future to its executives and key management employees, subject to and on a
basis consistent with the terms, conditions and overall administration of such
plans and arrangements. Any payments or benefits payable to the Employee
hereunder in respect of any calendar year during which the Employee is employed
by the Employer for less than the entire year shall, unless otherwise provided
in the applicable plan or arrangement, be prorated in accordance with the
number of days in such calendar year during which he is so employed.
4. Bonuses. Employee shall be entitled to participate
in bonus plans or programs offered by the Employer for executives who are
members of the Corporation's senior management, in accord with the requirements
of said plans or programs.
5. Stock Option and Purchase Plans. Employee shall be
entitled to participate in stock option and purchase plans or programs
established by the Employer for executives who are members of the Corporation's
senior management, in accord with the requirements of said plans or programs.
6. Vacations. During the term of this Agreement,
Employee shall be entitled to reasonable vacation periods during which his
compensation shall be paid in full. Such vacations may be taken at such time
or times as the Employee may choose, but shall be scheduled in such manner as
to avoid unreasonable interference with the performance of his duties and
obligations to the Employer. Vacation periods substantially equivalent to
those taken by Employee while performing his present duties prior to execution
of this Agreement shall be considered reasonable.
7. Automobile Allowance. During his employment with the
Corporation, Employer shall provide Employee with the use of a company vehicle
and an additional allowance to cover related insurance, maintenance and
operation expenses for the vehicle, up to a reasonable amount per year as
established by the Employer.
8. Facilities Furnished. The Employer shall furnish the
Employee with office space, stenographic assistance and such other facilities
and services as shall be suitable to the Employee's position and adequate for
the performance of his duties.
9. Consideration. It is expressly agreed and understood
that the Employee's employment, all of the compensation and benefits set forth
above, and the stock in the Corporation being provided to Employee is
consideration for his agreement to all the terms of this Agreement, including,
specifically, his agreement to the restrictive covenants set forth in
Sub-paragraphs II.D, II.E, II.F and II.G below.
C. BEST EFFORTS. Employee agrees that he will at all times
faithfully and industriously perform all of his duties that may be required of
and from him by Employer, that he will devote substantially his full time and
exert his best efforts in the performance of his duties and functions for the
Corporation, and that he will perform such other reasonable duties as are
assigned to him pursuant to the express and implicit terms and conditions of
this Agreement to the reasonable satisfaction of Employer. Employee further
agrees that during the term of this
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Agreement he will not engage in or become interested in any other business,
calling or enterprise which is or may be contrary to or in competition with the
interest, welfare or benefit of Employer.
D. NON-SOLICITATION OF BUSINESS. In addition to any obligation
under any other Paragraph of this Agreement, during the term of Employee's
employment with Employer and for a period of twelve (12) months after the date
of termination of employment with Employer, regardless of who initiated such
termination, Employee will not, directly or indirectly, whether as an
individual or for his own account or with any other person or entity of any
kind whatsoever solicit, interfere with, or endeavor to entice away or divert
from Employer any client or any business Employer had enjoyed or solicited
from its clients during the one year prior to termination of his employment.
This restriction shall only apply to and include clients and accounts with
which Employee had worked or been involved, directly or indirectly, during his
employment with Employer.
E. NON-COMPETE. In addition to any obligation under any other
Paragraph of this Agreement, during the term of Employee's employment with
Employer and for a period of twelve (12) months after the date of termination
of employment with Employer, regardless of who initiated such termination,
Employee shall not, alone, or as a member, employee or agent of any
partnership, or as an officer, agent, employee, director, stockholder (except
stockholder of not more than five percent (5%) of the outstanding stock of any
company listed on a national securities exchange or traded over the counter) or
investor of any other corporation, directly or indirectly, (i) own, manage,
operate, join, control or participate in the ownership, management, operation
or control of, or (ii) become employed by, consult or advise, or (iii) be
connected in any manner with, any business or activity which involves or
relates to the sale or marketing of products or services which are
substantially similar to, the same as, or serve the same function as, those
sold or marketed by the Employer, and which business or activity is conducted
within a 50 mile radius of any office of the Employer.
F. NON-ENTICEMENT. In addition to any obligation under any other
Paragraph of this Agreement, during the term of Employee's employment with
Employer and for a period of twelve (12) months after the date of termination
of employment with Employer, regardless of who initiated such termination,
Employee shall not, directly or indirectly, whether as an individual or for his
own account or for or with any other person or entity of any kind whatsoever
hire, solicit or endeavor to entice away from Employer or any client of
Employer, any person who was employed by Employer or any client of Employer at
any time during Employee's employment with Employer, in order to accept
employment or association with another person, or entity of any kind
whatsoever, and Employee shall not approach any such person for any such
purpose or authorize or knowingly cooperate with the taking of any such action
by any other individual, person or entity. Employer's clients are third-party
beneficiaries of aforestated covenants and shall have standing to enforce the
terms of this sub-paragraph, II.F., and to seek and obtain whatever equitable
or legal remedies are necessary to make them whole, including but not limited
to all remedies provided to Employer under this Agreement.
G. CONFIDENTIALITY. In addition to any obligation under any
other Paragraph of this Agreement, Employee shall not at any time during the
term of his employment with Employer or at any time thereafter communicate,
divulge or disclose for use by himself or others any
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information or knowledge, disclosed or otherwise obtained by him during his
employment by Employer (including but not limited to information and knowledge
conceived, discovered or developed by Employee) which is not generally known in
the computer programming, renovation and computer software products industry
and which relates to the business of the Employer or the business of the
Employer's customers or is in the nature of a trade or business secret of
Employer, or the Employer's customers. Confidential information shall include,
in addition to the specific items so identified in this Agreement, all
information and matters designated by Employer during the term of Employee's
employment as confidential. Employer's customers are third-party beneficiaries
of the aforestated covenants contained in this Sub-paragraph II.G., and shall
have standing to enforce its terms and to seek whatever equitable or legal
remedies are necessary to make them whole including but not limited to, all
remedies provided to Employer under this Agreement or pursuant to law.
Notwithstanding any other provision contained herein, Employee shall not at any
time directly or indirectly appropriate to his own use or to the use of others
any software product methodology, or portion thereof, that Employee owned or
developed during the term of Employee's employment.
H. REASONABLENESS. Employee represents and acknowledges that the
foregoing restrictions will not prevent him from obtaining good employment in
his field of expertise or cause him undue hardship, and there are numerous
other employment opportunities available to him that are not affected by the
foregoing restrictions. Employee further acknowledges that the foregoing
restrictions are reasonable and necessary in order to protect Employer's
legitimate interests, and that any violation thereof would result in
irreparable injury to Employer.
I. DISCLOSURE. Employee shall make the terms and conditions of
this Agreement known to any business, entity, or persons engaged in activities
competitive with Employer's business, with which he becomes associated within
two years subsequent to his termination of his employment with Employer.
Employer shall have the right to make the terms of this Agreement known to
third parties during such period.
J. DEVELOPMENTS; COMPANY PROPERTY. Employee agrees that all work
product, programs, software, inventions, designs, product developments, patent
applications, trademarks, trade names, service marks, copyrights and all rights
acquired therein ("Developments") that Employee creates, conceives or develops,
whether solely or jointly with others, which are based in whole or in part upon
information Employee or any other employee of the Employer gathers in the
course of, or arising from, Employee's employment with the Employer, shall
inure to and be the property of the Employer for its exclusive use and benefit.
Employee agrees that, during and after Employee's employment with the Employer,
Employee shall fully cooperate with the Employer to ensure that such
Developments remain Employer property. Such cooperation shall include, without
limitation, the execution of appropriate assignment documents, applications and
other documents as the Employer requests. All documents that Employee
prepares, or confidential information that might be given to Employee in the
course of Employee's employment with the Employer, are the exclusive property
of the Employer. On the Employee's termination of employment regardless of how
termination is effected, or whenever requested by the Employer, Employee shall
immediately return to the Employer, without making copies, excerpts or
summaries, all of the Employer's property, including, without limitation, all
equipment, materials, documents, agreements, files, vendor lists or files,
client and potential client lists or files, computer software or hardware,
computer programs (whether on floppy
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disks, mini disks, CDs or hard drives), instruction manuals, proposals, reports,
correspondence, records, business cards and all other documents made available
by the Employer, or used by Employee in rendering services hereunder or
otherwise, that is in Employee's possession or under Employee's control.
III. REMEDIES
In the event of any violation of this Agreement Employer shall be
authorized and entitled to obtain from any court of competent jurisdiction
preliminary and permanent injunctive relief as well as an equitable accounting
of all profits or benefits arising out of such violation, which rights and
remedies shall be cumulative and in addition to any other rights or remedies to
which Employer may be entitled, including the right to damages directly or
indirectly sustained by Employer, and all reasonable attorneys' fees, court
costs and litigation expenses incurred in enforcing any of the provisions of
this Agreement.
IV. TERMINATION
A. Employment of Employee under this Agreement may be terminated
immediately at any time without prior notice to the other party and without
payment of any Severance Compensation (as defined below), bonus or other
compensation, other than salary and vacation benefits earned:
1. by the Employer upon the death of Employee;
2. by the Employer when Employee reaches mandatory
retirement age under any retirement policy applicable to all executive members
of the Corporation's senior management team, as adopted by the Employer;
3. by the Employer for just cause. For purposes of this
Agreement, "just cause" shall mean any one or more of the following: (A)
Employee's breach of his obligations, duties and responsibilities under any
term or provision of this Agreement which is materially detrimental to
Employer, which breach remains uncured for a period of five days after written
notice by the Employer to Employee; (B) Employee's gross negligence or willful
misconduct in the performance of his duties hereunder; (C) Employee's
dishonesty, fraud, misappropriation or embezzlement in the course of, related
to or connected with the business of the Employer; or (D) Employee's conviction
of a felony.
If the Employee is advised that he is being terminated for
just cause and within fifteen (15) days thereafter submits to the Chief
Executive Officer a written objection to such a determination, this Section
will not be applicable unless the Board of Directors of the Employer at or
before its next regularly scheduled meeting determines by majority vote that
just cause exists.
B. Employment of Employee may also be terminated upon thirty (30)
days written notice to the other party for any reason other than those set
forth in Section IV. A. above.
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1. Employer may terminate Employee for any reason. In
the event that Employer terminates Employee for reasons not set forth in
Section IV. A., and where a Change in Control has not occurred as set forth
below, Employer shall provide to Employee Severance Compensation. Severance
compensation shall equal four (4) months of Employee's effective annual base
compensation immediately prior to the termination date for each year of
Employee's employment with the Employer, subject to a maximum severance benefit
of one (1) year's annual base compensation.
2. In the event of a Change in Control, Employer or
Employee may terminate Employee's employment and, upon such termination of
employment, the following provisions shall apply.
A. A Change in Control shall be deemed to have occurred
if (i) any "person(s)" (as such term is used in Sections 13(d) and 14(d) of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), become(s)
the "beneficial owner(s)" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities or other interests of the Employer
representing a 50 percent or greater voting or other interest in the Employer,
or (ii) the stockholders of the Employer approve an agreement for the sale or
disposition by the Employer of all or substantially all the Employer's assets.
B. In the event of a Change in Control, the following
Change in Control compensation shall be provided to Employee: (i) a sum equal
to one (1) year of the Employee's effective annual base compensation
immediately prior to the termination date plus (ii) the equivalent cash value,
at standard independent insurance premium rates, of purchasing, as of the
termination date, benefits for the Employee on an individual basis which are
equal to the Employee's participation (including dependent coverage) in the
Employer's health insurance plan, calculated as if such benefits were continued
during the one (1) year period following the termination date, and payable in
equal semi-monthly installments over one (1) year following the termination
date.
C. In the event that any payment received or to be
received by the Employee in connection with a Change in Control of Employer or
the termination of the Employee's employment (whether payable pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Employer, any person whose actions result in a Change in Control or any person
affiliated with the Employer or such person) would not be deductible by the
Employer (in whole or in part) as a result of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), such payment shall be reduced
until no portion of the payment is not deductible as a result of Section 280G
of the Code. For purposes of this limitation (i) no portion of the payments
the receipt or enjoyment of which the Employee shall have effectively waived in
writing prior to the date of payment shall be taken into account; (ii) no
portion of the payment shall be taken into account which, in the opinion of tax
counsel selected by the Employer's independent auditors and acceptable to the
Employee, does not constitute a "parachute payment" within the meaning of
Section 280G(b)(2) of the Code, and (iii) the value of any non-cash benefit or
any deferred payment or benefit included in the payment shall be determined by
the Employer's independent auditors servicing the Employer immediately prior to
the time of a Change in Control of the Employer in accordance with the
principles of Sections 280(G)(d)(3) and (4) of the Code.
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V. NOTICES
All notices pursuant to this Agreement must be in writing. All
notices to Employer shall be addressed to the main office of Employer, or such
other address as Employer may hereafter designate by written notice to Employee
given in accordance with this Paragraph and all notices to Employee shall be
addressed to the Employee at the office in which he is based with a copy to his
home address as last indicated in the books and records of the Employer or at
such other address as Employee may hereafter designate by written notice to
Employer given in accordance with this Paragraph. All notices shall be
considered effective on the earlier of: a) the date when delivered personally
to Employer or Employee or; b) two (2) days after deposit of said notice in the
United States mail, registered mail, postage prepaid, return receipt requested,
addressed to the address of the party to whom directed as hereinabove set
forth.
VI. MISCELLANEOUS
A. PRIOR AGREEMENTS. All of the terms and conditions of this
Agreement take precedence over any and all prior understandings and agreements
made by and between Employer and Employee regarding employment and the
execution of this Agreement shall constitute the termination of any and all
such prior agreements.
B. NO BREACH. Employee hereby warrants that he is not now under
any legal or contractual obligation that would conflict in any manner with the
obligations and duties he is undertaking herein, and that his execution of this
Agreement will not breach any agreement to which he is now a party.
C. SEVERABILITY. In the event any of the restrictions contained
in this Agreement are held to be in any respect an unreasonable restriction
upon Employee, then the court so holding shall alter or amend the Agreement,
including making any reduction in the territory to which it pertains and/or the
period of time in which it operates, or effect any other change to the extent
necessary to render any of the restrictions enforceable. Each of the terms and
provisions of this Agreement is and is to be deemed severable in whole or in
part and, if any term or provision or the application thereof in any
circumstances should be invalid, illegal or unenforceable, the remaining terms
and provisions or the application thereof to circumstances other than those as
to which it is held invalid, illegal or unenforceable, shall not be affected
thereby and shall remain in full force and effect.
D. CAPTIONS. The captions contained herein are solely for the
convenience of the parties and shall not be deemed to govern the meaning or
intent of any of the provision of this Agreement.
E. BINDING EFFECT; NO ASSIGNMENT. The rights and obligations of
Employer and Employee hereunder shall inure to the benefit of and be binding
upon any successor or assign of Employer. This Agreement is personal to
Employee and shall not be assigned by him to any other party whatsoever.
F. NO WAIVER. The waiver or non-enforcement by Employer of any
breach of any provision of this Agreement by Employee shall not operate or be
construed as a waiver of any
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subsequent breach by Employee. No waiver shall be legally operative unless in
writing and signed by an authorized agent of Employer.
G. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Illinois without reference to the
principles governing conflicts of laws.
H. AMENDMENTS; ENTIRE AGREEMENT. This Agreement, unless stated
otherwise herein, may only be amended by the written mutual agreement of the
parties hereto. This Agreement constitutes the entire agreement between the
parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
EMPLOYER:
SPR INC.
By: ________________________
Its: ________________________
EMPLOYEE:
_____________________________
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