Exhibit 10.1
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EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), is made and entered into
as of the Effective Date (as hereinafter defined), by and between Xxxxx
Consulting, Inc. and/or its successors ("Company"), a Delaware corporation, and
Xxxxx X. Xxxx, a resident of Minnesota (the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Xxxxx Consulting, Inc. ("CCI") and its affiliates (including
the Company) (collectively "CCI Affiliates" and individually "CCI Affiliate")
are engaged in business in the State of Illinois and throughout the United
States; and
WHEREAS, the Company desires to employ the Employee in the capacity of
President of the Banking Practice (the "Division") of the Company, upon the
terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to enter into this Agreement with
respect to his employment and services upon the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations contained herein, the Company hereby employs the Employee and the
Employee hereby accepts such employment upon the terms and conditions
hereinafter set forth:
1. Term of Employment. The term of employment under this Agreement
shall commence on May 6, 2004 (the "Effective Date") and shall extend through
December 31, 2005. Absent notice of termination (described below), commencing on
January 1, 2006 and continuing on each subsequent January 1, the term of the
Employee's employment shall automatically be extended for an additional 12
months. To cause the Employee's employment to terminate at the end of the
original or an extended term, either party, at least 30 days prior to such date,
shall give written notice to the other party that the Agreement will terminate.
2. Duties of the Employee. The Employee agrees that during the term of
this Agreement, he will devote substantially all his full professional and
business-related time, skills and best efforts to the businesses of the Company.
The Employee shall report to the Chief Executive Officer of Xxxxx Consulting,
Inc. or, if mutually agreeable, to such other manager as the Board of the
Company may from time to time determine. The Employee may engage in personal
investment activities provided such activities do not interfere with the
performance of his duties hereunder or violate the noncompetition and
confidential information provisions set forth herein. Nothing herein, however,
will prevent the Employee, (a) upon approval of Chief Executive Officer and
Chief Operating Officer of CCI, from service as a director or trustee of other
corporations or businesses which are not directly or indirectly in competition
with the business of the Company or in competition with any present or future
CCI Affiliate, (b) from service on civic or charitable boards or committees, or
(c) from engaging in personal, passive, investment activities; provided such
activities do not interfere with the performance of his duties hereunder or
violate the noncompetition and confidential information provisions set forth
herein. Employee shall be indemnified for actions performed in the course of his
employment to the same extent as other similarly situated employees of the CCI
Affiliates.
3. Compensation.
(a) Base Salary. The Company shall pay the Employee an annual base
salary of Three Hundred and Fifty Seven Thousand and Five Hundred Dollars
($357,500), for each year of this Agreement (or fraction for portions of a year)
("Base Salary"). After May 6, 2005, such Base Salary may be adjusted upwards
based upon the Employee's performance. The Employee's Base Salary shall be
subject to all appropriate federal and state withholding taxes and shall be
payable in accordance with the normal payroll procedures of the Company.
(b) Annual Bonus. In addition to the Base Salary set forth in Section
3(a) hereof, the Employee shall receive an annual bonus opportunity (the "Annual
Bonus") each year during his employment equal to 140% of his Base Salary. The
Annual Bonus Targets shall be based on the financial performance of the Division
and of the Company and shall be communicated to the Employee by the Chief
Operating Officer of CCI no later than March 31 of the year for which the Annual
Bonus applies. For the Annual Bonus attributable to the fiscal year ending
December 31, 2004 only, the Employee will receive a minimum guaranteed Annual
Bonus equal to 100% of the Employee's Base Salary earnings during the 2004
fiscal year. For the Annual Bonus attributable to the 2005 fiscal year only, the
Employee will receive a minimum guaranteed Annual Bonus equal to 75% of the
Employee's Base Salary earnings during the 2005 fiscal year. For all subsequent
years, no part of the Annual Bonus will be guaranteed. The Annual Bonus shall be
paid on or before March 15 of the year following the year to which the bonus
relates. With the exception of the Annual Bonuses attributable to the 2004 and
2005 fiscal years, the Employee must be employed by the Company or a CCI
Affiliate on the date of payment in order to receive his Annual Bonus. The
Annual Bonus, if any, shall be subject to all appropriate federal and state
withholding taxes and shall be paid in accordance with the normal payroll
procedures of the Company.
4. Employee Benefits. The Employee and his eligible dependents shall be
eligible to participate in the qualified employee benefit programs made
available generally to other employees of the CCI Affiliates as well as any
other programs made available generally to other Presidents of Divisions of the
Company; provided, however, that the Employee and his eligible dependents must
meet any and all eligibility provisions required under such qualified employee
benefit programs. The Employee will be eligible for participation in the Xxxxx
Consulting, Inc. Execu-flex Benefit Plan, which will provide the Employee with a
$15,000 contribution each plan year for so long as this Plan is offered to other
employees and for as long as the Employee remains as President of the Division.
The Employee will also be eligible for participation in the Xxxxx Consulting,
Inc. Deferred Compensation Plan for so long as this Plan is offered to other
employees and for as long as the Employee remains as President of the Division.
5. Paid Time Off. The Employee shall be entitled to up to twenty-five
(25) days paid time off (PTO) during each full calendar year, and may carry over
up to ten (10) days of unused paid time off to the next succeeding calendar
year; provided, however, that at no time may the Employee have accumulated more
than thirty (30) days of PTO.
6. Reimbursement of Expenses. The Company recognizes that the Employee
will incur legitimate business expenses in the course of rendering services to
the Company hereunder. Accordingly, the Company shall reimburse the Employee,
upon presentation of receipts or other
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adequate documentation, for all necessary and reasonable business expenses
incurred by the Employee in the course of rendering services to the Company
under this Agreement consistent with the Company's Travel Policy then in effect.
7. Working Facilities. The Employee shall be furnished an office,
administrative assistance and such other facilities and services suitable to his
position and adequate for the performance of his duties ("Working Facilities"),
which shall be consistent with the reasonable policies of the Company.
8. Termination of Existing Contract The Employee is currently party to
an agreement with the Company dated March 1, 2001 (the "Existing Contract") and
subsequently amended on March 1, 2001 and further amended on March 20, 2003 (the
"Existing Amendments") which is attached hereto as Exhibit A. The Company and
the Employee agree that on the effective date of this Agreement that the
Existing Contract and the Existing Amendments will be terminated and that the
terms of this Agreement will govern all aspects of the Employee's employment
with the Company
9. Termination. The employment relationship between the Employee and
the Company created hereunder shall terminate before the expiration of the then
current term upon the occurrence of any one of the following events:
(a) Death or Permanent Disability. The death or permanent disability of
the Employee. For the purpose of this Agreement, "permanent disability" of the
Employee shall mean "disability" as defined under Xxxxx Consulting, Inc.'s
long-term disability plan.
(b) Termination for Cause. The following events, actions or inactions
by the Employee shall constitute "Cause" for termination of this Agreement:
(i) Substantial refusal or failure to perform duties or any
reasonable obligation or substantial poor performance by the Employee
that is repeated or continued following thirty (30) days written notice
to the Employee of such refusal or failure to perform or of substantial
poor performance given by the Chief Operating Officer of CCI to the
Employee;
(ii) Employee's failure to rectify any material breach of
contract under this Agreement within 30 days after written notice of
such breach is given by the Chief Executive Officer or the Chief
Operating Officer of the Company to the Employee;
(iii) any gross misconduct or gross negligence in the
performance of his duties that materially and adversely affects the
Company;
(iv) a material breach of the Intellectual Property and
Confidentiality Agreement with the Company;
(v) the intentional diversion of a material financial
opportunity away from the CCI Affiliates;
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(vi) the commission of an act of dishonesty or fraud that is
of a material nature and involves a material breach of trust with
respect to the interests of the Company; and
(vii) the conviction of Employee for any felony or of a crime
involving moral turpitude.
Any notice of discharge shall describe with reasonable specificity the cause or
causes for the termination of the Employee's employment, as well as the
effective date of the termination (which effective date may be the date of such
notice). If the Company terminates the Employee's employment for any of the
reasons set forth above, the Company shall have no further obligations hereunder
from and after the effective date of termination (other than as set forth below)
and shall have all other rights and remedies available under this Agreement or
any other agreement and at law or in equity.
(c) Constructive Termination. In the event of a material reduction in
(or a failure to pay or provide) Employee's earned Base Salary, earned Annual
Bonus, benefits or PTO other than as permitted by this Agreement, or a downward
revision in the Employee's title and/or responsibilities unless mutually agreed
upon between the Employee and the Chief Operating Officer of Xxxxx Consulting,
Inc., the Employee shall have the right to terminate his employment and such
termination shall be treated in all respects as if it had been a termination of
employment by the Company with Notice as defined in Section 9(e).
(d) Termination by the Employee with Notice. The Employee may terminate
this Agreement at any time without liability to the Company arising from the
resignation of the Employee upon thirty (30) days prior written notice to the
Company. The Company retains the right after proper notice of the Employee's
voluntary termination to require the Employee to cease his employment
immediately; provided, however, in such event, the Company shall remain
obligated to pay the Employee his salary during the thirty (30) day notice
period. During such thirty (30) day notice period, the Employee shall provide
such consulting services to the Company as the Company may reasonably request
and shall assist the Company in training his successor and generally preparing
for an orderly transition.
(e) Termination by the Company with Notice. After December 31, 2005, or
prior to such anniversary in connection with a general restructuring of the
Company as a whole, the Company may terminate this Agreement at any time without
liability other than as set forth in Section 10(c) upon thirty (30) days prior
written notice to the Employee. The Company retains the right after proper
notice has been given to the Employee to require the Employee to cease his
employment immediately; provided, however, in such event, the Company shall
remain obligated to pay the Employee his salary during the thirty (30) day
notice period. During such thirty (30) day notice period, the Employee shall
provide such consulting services to the Company as the Company may reasonably
request and shall assist the Company in training his successor and generally
preparing for an orderly transition.
(f) Termination due to Change in Control. For purposes of this
Agreement, a "Change in Control" shall be deemed to have occurred if:
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(i) other than Xxxxx, Inc. or an existing subsidiary of Xxxxx,
Inc., the Company becomes a subsidiary of another corporation or entity
or is merged or consolidated into another corporation or entity or
substantially all of the assets of the Company are sold to another
corporation or entity; or
(ii) any person, corporation, partnership or other entity,
either alone or in conjunction with its "affiliates," as that term is
defined in Rule 405 of the General Rules and Regulations under the
Securities Act of 1933, as amended, or other group of persons,
corporation, partnerships or other entities who are not "affiliates"
but who are acting in concert, other than X.X. Xxxxxxx or his family
members or any person, organization or entity that is controlled by
X.X. Xxxxxxx or his family members, becomes the owner of record or
beneficially of securities of the Company that represent thirty-three
and one-third percent (33 1/3%) or more of the combined voting power of
the Company's then outstanding securities entitled to elect Board of
Directors of the Company; or
(iii) the Board of Directors of the Company or a committee
thereof makes a determination in its reasonable judgment that a "Change
of Control" of the Company has taken place.
If after a Change in Control, the Employee terminates due to
Constructive Termination or CCI or its successors terminates the Employee for
any reason other than Cause, as defined in Section 9(b), the Employee will be
entitled to the Compensation as specified in Section 10(e) of this Agreement.
10. Compensation Upon Termination.
(a) Accrued Obligations. Upon termination of the Employee's employment
under this Agreement for any reason (provided, however, that the Company may not
terminate the Employee without Cause or take actions that would result in a
Constructive Termination of the Employee prior to December 31, 2005, the
Employee shall be entitled to:
(i) the Base Salary earned by him before the effective date of
termination, as provided in Section 3(a) hereof, prorated on the basis
of the number of full days of service rendered by the Employee during
the year to the effective date of termination;
(ii) any accrued, but unpaid, PTO (up to thirty (30) days);
(iii) any authorized but unreimbursed business expenses; and
(iv) any benefits to which the Employee is entitled under the
employee benefit programs maintained by the CCI Affiliates in which the
Company participates.
The sum of the amounts described in clauses (i) through (iv) will be
hereinafter referred to as the "Accrued Obligations." The Accrued Obligations
will be paid to the Employee or his estate or beneficiary, as applicable, in a
lump sum in cash within thirty (30) days of the
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date of termination; provided that the benefits under clause (iv) will be paid
or provided in accordance with the terms of the applicable employee benefit
programs.
(b) Termination Due to Death or Disability. If the Employee's
employment terminates as specified in Section 9(a) of this Agreement, the
Employee shall be entitled to the Accrued Obligations set forth in Section 10(a)
above plus any pro-rata Annual Bonus, as specified in Section 3(b) of this
Agreement. If the Employee's employment terminates as specified in Section 9(a)
prior to January 1, 2005, the pro-rata Annual Bonus will be no less than the
Annual Bonus guarantee for the 2004 fiscal year. If the Employee's employment
terminates as specified in Section 9(a) after December 31, 2004 but prior to
January 1, 2006, the pro-rata Annual Bonus will be no less than the Annual Bonus
guarantee for the 2005 fiscal year. If the Employee terminates as specified in
Section 9(a) of this Agreement after January 1, 2006, the pro-rata Annual Bonus
shall be based on the Base Salary Earnings of the Employee through the Date of
Death or Disability and shall be paid on or before March 15 of the year
following the year to which the Annual Bonus relates based on the actual
financial results of the Practice and the Company for that fiscal year.
(c) Compensation for Constructive Termination or Termination by the
Company with Notice. Upon termination of the Employee's employment under this
Agreement pursuant to Sections 9(c) or 9(e) of the Agreement, the Employee will
receive the sum of:
(i) the Accrued Obligations as set forth in Section 10(a) of
this Agreement;
(ii) One year of Base Salary, pursuant to Section 3(a) to be
paid over the course of 12 months consistent with the company's normal
payroll practices and
(iii) Any pro-rata Annual Bonus, as specified in Section 3(b)
of this Agreement, for the Calendar Year of the Employee's Termination.
If the Employee's employment terminates as specified in Sections 9(c)
or 9(e) prior to January 1, 2005, the pro-rata Annual Bonus will be no
less than the Annual Bonus guarantee for the 2004 fiscal year. If the
Employee's employment terminates as specified in Section 9(c) or 9(e)
after December 31, 2004 but prior to January 1, 2006, the pro-rata
Annual Bonus will be no less than the Annual Bonus guarantee for the
2005 fiscal year. If the Employee terminates as specified in Section
9(c) or 9(e) of this Agreement after January 1, 2006, the pro-rata
Annual Bonus shall be based on the Base Salary Earnings of the Employee
through the Date of Termination and shall be paid on or before March 15
of the year following the year to which the Annual Bonus relates based
on the actual financial results of the Practice and the Company for
that fiscal year.
(d) Compensation for Termination By the Employee With Notice. If the
Employee's employment terminates as specified in Section 9(d) of this Agreement,
the Employee shall be entitled to the Accrued Obligations as set forth in
Section 10(a).
(e) Compensation due to a Change in Control. Upon termination of the
Employee's employment pursuant to Section 9(f) of this Agreement, the Employee
will receive the sum of:
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(i) the Accrued Obligations as set forth in Section 10(a) of
this Agreement;
(ii) Two (2) years of Base Salary, pursuant to Section 3(a) to
be paid over the course of 24 months consistent with the company's
normal payroll practices and
(iii) An amount equal to the Annual Bonuses paid to the
Employee for the two years prior to the date of a Change of Control to
be paid over the course of 24 months consistent with the Company's
normal payroll practices. If the Change in Control occurs prior to
December 31, 2005, the amount of this payment shall not be less than
the guaranteed Annual Bonus payments pursuant to Section 3(b) for the
2004 and 2005 fiscal years.
(f) Withholding; Offset. Amounts payable under this Section 10 shall be
subject to all appropriate federal and state withholding taxes, and shall be
offset by any amounts due the Company under this Agreement.
11. Noncompetition; Nonsolicitation.
(a) The Employee acknowledges that he occupies a position of special
trust and confidence with respect to the Company, and that the position imposes
the obligation to act in a stewardship capacity with respect to the preservation
and development of the Company and its resources for the benefit of future, as
well as present, shareholders, officers, directors and employees. In recognition
of his special relationship with the Company, and to protect the Company's
legitimate business interests without unnecessarily or unreasonably restricting
his professional opportunities in the event of his termination from the Company
and all CCI Affiliates, for any reason other than as specified in Section 9(f)
of this Agreement;
(i) The Employee shall not, unless receiving specific written
approval from the Chief Executive Officer of the Company, for a period
of twelve (12) months following his termination of employment with the
Company and all CCI Affiliates for any reason, for himself or as agent,
partner or employee of any person, corporation or firm, directly or
indirectly, engage in services of the type provided by the Company for:
(1) any client of the Company or a CCI Affiliate for
whom the Employee performed services, as determined by the
Chief Operating Officer of Xxxxx Consulting, Inc., or
supervised the performance of services,
(2) any prospective client of the Company or a CCI
Affiliate to whom the Employee submitted, or assisted in the
submission of, a proposal, during the twelve (12) month period
preceding his termination, or
(3) any client about whom Employee learned
Confidential Information.
(ii) The Employee shall not, unless receiving specific written
approval from the Chief Executive Officer of the Company, at any time
during which he is an employee of the Company or another CCI Affiliate
and for twelve (12) months after his
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termination with the Company and all CCI Affiliates for any reason,
whether for his own account or for the account of any person other than
a CCI Affiliate, directly or indirectly, endeavor to solicit away from
the Company or a CCI Affiliate, or facilitate the solicitation away
from the Company or a CCI Affiliate of, any client of the Company or a
CCI Affiliate or induce same to limit, alter or reduce its relationship
with the Company.
(iii) The Employee shall not, unless receiving specific
written approval from the Chief Executive Officer of the Company, at
any time during which he is an employee of the Company or another CCI
Affiliate and for twelve (12) months after his termination for any
reason from the Company and all CCI Affiliates, whether for his own
account or for the account of any person other than a CCI Affiliate,
directly or indirectly, induce away from the Company or a CCI
Affiliate, or facilitate the inducement away from the Company or a CCI
Affiliate of, any personnel of the Company or a CCI Affiliate or
interfere with the faithful discharge by such personnel of their
contractual and fiduciary obligations to serve the Company's or a CCI
Affiliate's interests and those of its clients of undivided loyalty.
(b) If the Employee's employment terminates pursuant to Section 9(f) of
this Agreement, the non-competition and nonsolicitation provisions of Section
11(a) of this Agreement will be binding for a period of Twenty-four (24) months,
rather than 12 months.
(c) "Client" as used in this Section 11 shall mean any person or entity
for whom the Company or a CCI Affiliate performed services or provided products
within the twelve (12) months immediately preceding the termination of the
Employee's employment with the Company and all CCI Affiliates.
12. Confidential Information. Employee shall abide by the terms of the
Company's standard Intellectual Property and Confidentiality Agreement, which is
attached hereto as Exhibit B.
13. Property of the Company. The Employee acknowledges that from time
to time in the course of providing services pursuant to this Agreement he shall
create or have the opportunity to inspect and use certain property, both
tangible and intangible, of the Company and the Employee hereby agrees that such
property shall remain the exclusive property of the Company, and the Employee
shall have no right or proprietary interest in such property, whether tangible
or intangible, including, without limitation, the Employee's customer and
supplier lists, contract forms, books of account, computer programs and similar
property.
14. Equitable Relief. The Employee acknowledges that the services to be
rendered by him are of a special, unique, unusual, extraordinary, and
intellectual character, which gives them a peculiar value, and the loss of which
cannot reasonably or adequately be compensated in damages in an action at law,
and that a breach by him of any of the provisions contained in this Agreement
will cause the Company irreparable injury and damage. The Employee further
acknowledges that he possesses unique skills, knowledge and ability and that
competition by him in violation of this Agreement or any other breach of the
provisions of this Agreement would be extremely detrimental to the Company. By
reason thereof, the Employee agrees that the Company shall be entitled, in
addition to any other remedies it may have under this Agreement
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or otherwise, to injunctive and other equitable relief to prevent or curtail any
breach of this Agreement by him.
15. Assignment. The Company may assign its rights under this Agreement
to any successor in interest, whether by merger, consolidation, sale of assets
or otherwise. This Agreement is personal to the Employee and may not be assigned
in any way by the Employee without the prior written consent of the Company.
16. Severability and Reformation. The parties hereto intend all
provisions of this Agreement to be enforced to the fullest extent permitted by
law. If, however, any provision of this Agreement is held to be illegal,
invalid, or unenforceable under present or future law, such provision shall be
fully severable, and this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision were never a part hereof, and the
remaining provisions shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance. Further, if any provision is held to be overbroad, a court may modify
that provision to the extent necessary to make the provision enforceable
according to applicable law and enforce the provision as modified.
17. Integrated Agreement. This Agreement constitutes the entire
Agreement between the parties hereto with regard to the subject matter hereof,
and there are no agreements, understandings, specific restrictions, warranties
or representations relating to said subject matter between the parties other
than those set forth herein, specifically referenced herein or otherwise herein
provided for.
18. Notices. All notices and other communications required or permitted
to be given hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally, mailed by certified mail (return receipt
requested) or sent by overnight delivery service, cable, telegram, facsimile
transmission or telex to the parties at the following addresses or at such other
addresses as shall be specified by the parties by like notice:
If to the Company:
Xxxxx Consulting, Inc.
000 Xxxxx Xxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxx
Chief Operating Officer
With a copy in the event of notice to the Company or CBI to:
Vedder, Price, Xxxxxxx and Kammholz, P.C.
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Lane X. Xxxxx, Esq.
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If to Employee:
Xxxxx X. Xxxx
00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Notice so given shall, in the case of notice so given by mail, be
deemed to be given and received on the fourth calendar day after posting, in the
case of notice so given by overnight delivery service, on the date of actual
delivery and, in the case of notice so given by cable, telegram, facsimile
transmission, telex or personal delivery, on the date of actual transmission or,
as the case may be, personal delivery.
19. Further Actions. Whether or not specifically required under the
terms of this Agreement, each party hereto shall execute and deliver such
documents and take such further actions as shall be necessary in order for such
party to perform all of his or its obligations specified herein or reasonably
implied from the terms hereof.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF
ILLINOIS.
21. Application of Terms. Whenever used herein the terms Xxxxx, Inc.,
Xxxxx Consulting, Inc., (or any abbreviations thereof) shall include all
affiliates and successors thereof.
22. Counterparts. This Agreement may be executed in counterparts, each
of which will take effect as an original and all of which shall evidence one and
the same Agreement.
23. Arbitration. Without limiting the right of the Company or the
Employee to seek equitable relief to prevent irreparable injury, any dispute
arising out of or relating to this Agreement or the breach, termination or
validity thereof, which has not been resolved by agreement within 60 days after
written notice thereof by the affected Party shall be settled by arbitration in
accordance with the then current Center for Public Resources Rules for
Non-Administered Arbitration of Business Disputes, by a sole arbitrator. The
arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. ss.
1-16, and judgment upon the award rendered by the arbitrator may be entered by
any court having jurisdiction thereof. The place of arbitration shall be
Chicago, Illinois. The arbitrator is not empowered to award damages in excess of
compensatory damages and each Party hereby irrevocably waives any right to
recover such damages with respect to any dispute resolved by arbitration.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
XXXXX CONSULTING, INC.
By:/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Chief Operating Officer
Dated: July 1, 2004
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EMPLOYEE:
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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