Employment Agreement between Clark Consulting, Inc. and Jeffrey W. Lemajeur

Summary

Clark Consulting, Inc. and Jeffrey W. Lemajeur have entered into an employment agreement effective June 1, 2004. Mr. Lemajeur will serve as Corporate Controller and Chief Accounting and Financial Officer, reporting to the Chief Operating Officer. The agreement outlines his annual base salary, bonus eligibility, benefits, paid time off, and reimbursement of business expenses. The employment term is one year, automatically renewing unless either party gives 60 days' notice. The agreement also details conditions for termination, including for cause, death, or disability.

EX-10.2 3 ex10-2_080204.txt EMPLOYMENT AGREEMENT - JEFFREY W. LEMAJEUR Exhibit 10.2 ------------ EMPLOYMENT AGREEMENT This Employment Agreement (this "Agreement"), is made and entered into as of the Effective Date (as hereinafter defined), by and between Clark Consulting, Inc. and/or its successors ("Company"), a Delaware corporation, and Jeffrey W. Lemajeur, a resident of Illinois (the "Employee"). W I T N E S S E T H: - - - - - - - - - - WHEREAS, Clark, Inc. ("CI") and its affiliates (including the Company) (collectively "CI Affiliates" and individually "CI 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 Corporate Controller and Chief Accounting and Financial Officer of the Company and CI, 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 June 1, 2004 (the "Effective Date") and shall extend through May 31, 2005 subject to Section 8 of this Agreement. Absent notice of termination (described below), commencing on June 1, 2005 and continuing on each subsequent June 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 60 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 Operating Officer of the Company. 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 CI, 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 CI 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 CI Affiliates. 3. Compensation. (a) Base Salary. The Company shall pay the Employee an annual base salary of One Hundred and Seventy-Five Thousand Dollars ($175,000.00), for each year of this Agreement (or fraction for portions of a year) ("Base Salary"). 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. The Employee's Base Salary may be adjusted periodically upwards in accordance with the Company's salary adjustment guidelines. (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 75% of his Base Salary. The Annual Bonus shall be based on the financial performance of the Company and is not guaranteed. The target levels for the Annual Bonus will be communicated to the Employee annually no later than April 30th of the fiscal year for which the Annual Bonus applies. The Annual Bonus will be payable if the target levels are met and the employee continues employment through December 31st of the year the Annual Bonus is determined. The Annual Bonus amount will be communicated and paid to the Employee no later than the March 15th of the year following the fiscal year to which the Annual Bonus applies. The Annual Bonus will 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 CI Affiliates as well as any other programs made available generally to other Employees 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 also eligible for participation in the Clark 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 this Agreement remains in effect. 5. Paid Time Off. The Employee shall be entitled to twenty-two (22) days paid time off (PTO) during each calendar year or such higher amount if the Company's PTO plan provides for a greater number of days based upon the Employee's length of service. The Employee may carry over up to twenty-seven (27) days of PTO to the next succeeding calendar year or such higher amount allowed for under the Company's PTO Plan based on the Employee's length of service. 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 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. This includes reimbursements for the usage of a cellular phone while this Agreement remains in effect. Credits to the Airline Frequent Flyer accounts of the Employee as a result of business travel shall belong to the Employee. 2 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. 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 Clark 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 the Company 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 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 CI Affiliates; (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 3 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 failure to pay or provide Employee's earned Base Salary, earned Annual Bonus, benefits, and paid time off other than as permitted by this Agreement, 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 without Cause. (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 sixty (60) 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 sixty (60) day notice period. During such sixty (60) 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 June 1, 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 9(d) upon sixty (60) days prior written notice to the Employee. A general restructuring of the Company is defined as a voluntary dissolution, bankruptcy, liquidation or any other type of insolvency reorganization. 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 sixty (60) day notice period. During such sixty (60) day notice period, the Employee shall provide such 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: (i) other than Clark, Inc. or an existing subsidiary of Clark, 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 W.T. Wamberg or his family members or any person, organization or entity that is controlled by W.T. Wamberg or his family members, becomes the owner of record or beneficially of securities of the Company that represent thirty-three and one-third percent 4 (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's employment is terminated by the Company or its successors for any reason other than Cause, as defined in Section 8(b), the Employee will be entitled to the Compensation as specified in Section 9(f) of this Agreement. 9. Compensation Upon Termination. (a) Accrued Obligations. Upon termination of the Employee's employment under this Agreement for any reason the Employee shall be entitled to: (i) any accrued, but unpaid, paid time off using the Base Salary as of the date of termination; (ii) any authorized but unreimbursed business expenses; and (iii) any benefits to which the Employee is entitled under the employee benefit programs maintained by the CI Affiliates in which the Company participates. The sum of the amounts described in clauses (i) through (iii) will be hereinafter referred to as the "Accrued Obligations." The Accrued Obligations shall be paid in a lump sum within thirty (30) days of the date of termination; provided that the benefits under clause (iii) will be paid or provided in accordance with the terms of the applicable employee benefit programs. (b) Compensation for termination due to Death or Permanent Disability. Upon termination of the Employee's employment under this Agreement due to Death, the Employee's estate shall receive the Accrued Obligations as of the date of termination. Upon termination of the Employee's employment under this Agreement due to Permanent Disability, the Employee shall receive the Accrued Obligations as of the date of termination. (c) Compensation for termination for Cause. Upon termination of the Employee's employment under this Agreement for Cause, the Employee shall be entitled to the Accrued Obligations as of the date of termination. (d) Compensation for termination due to Constructive Termination or termination by the Company with Notice. Upon termination of the Employee's employment under this Agreement as a result of Constructive Termination as defined in Section 8(c) or Termination by the Company with Notice as defined in Section 8(e), either during a contract year or at the end of a contract year, the Employee shall receive the Accrued Obligations as of the date of termination and the Base Salary in effect as of the date of termination for a period of Twenty-six (26) weeks. 5 (e) Compensation for termination by the Employee with Notice. Upon termination of the Employee's employment under this Agreement due to the Employee's resignation with notice, either during a contract year or at the end of a contract year, the Employee shall be entitled to the Accrued Obligations as of the date of termination. (f) Compensation for termination following a Change of Control. Upon termination by the Company or its successors of the Employee's employment following a Change in Control as defined in Section 8(f) of this Agreement, the Employee shall receive the Accrued Obligations as of the date of termination and the Base Salary in effect as of the date of termination for a period of Fifty-two (52) weeks. (g) Withholding; Offset. Amounts payable under this Section 9 shall be paid consistent with the normal payroll practices of this company and subject to all appropriate federal and state withholding taxes, and shall be offset by any amounts due the Company under this Agreement. 10. Noncompetition; Nonsolicitation. 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. The Employee acknowledges that as a result of the special position he occupies with the Company, he will have access to Confidential Information (as that term is defined in that certain Intellectual Property and Confidentiality Agreement executed by Employee on the date hereof), and to trade secrets of the Company. In consideration for the compensation he will receive as an employee of the Company and in recognition of his special relationship with the Company, and to protect the Company's legitimate business interests, including but not limited to its Confidential Information, trade secrets and the goodwill of the Company's business, the Employee agrees to the terms hereof: (a) The Employee shall not, for a period of twelve (12) months following his termination of employment with the Company and all CI 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: (i) any Client (as defined below) of the Company or a CI Affiliate for whom the Employee performed services during the twenty-four (24) months prior to termination, or for whom the Employee supervised the performance of services, (ii) any prospective Client of the Company or a CI Affiliate to whom the Employee submitted, or assisted in the submission of, a proposal, during the twenty-four (24) month period preceding his termination, and about whom the Employee learned Confidential Information. "Client" as used in this Section 10 shall mean any person or entity for whom the Company or a CI Affiliate performed services or provided products within the twenty-four (24) months 6 immediately preceding the termination of the Employee's employment with the Company and all CI Affiliates. (b) The Employee shall not, at any time during which he is an employee of the Company or another CI Affiliate and for twelve (12) months after his termination with the Company and all CI Affiliates, for any reason, whether for his own account or for the account of any person other than a CI Affiliate, directly or indirectly, endeavor to solicit away from the Company or a CI Affiliate, or facilitate the solicitation away from the Company or a CI Affiliate of, any Client of the Company or a CI Affiliate or induce same to limit, alter or reduce its relationship with the Company. (c) The Employee shall not, at any time during which he is an employee of the Company or another CI Affiliate and for twelve (12) months after his termination for any reason from the Company and all CI Affiliates, whether for his own account or for the account of any person other than a CI Affiliate, directly or indirectly, induce away from the Company or a CI Affiliate, or facilitate the inducement away from the Company or a CI Affiliate of, any personnel of the Company or a CI Affiliate or interfere with the faithful discharge by such personnel of their contractual and fiduciary obligations to serve the Company's or a CI Affiliate's interests and those of its Clients of undivided loyalty. 11. Confidential Information. Employee shall abide by the terms of the Company's standard Intellectual Property and Confidentiality Agreement, which is attached hereto as Exhibit A. 12. 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. 13. Equitable Relief. The Employee acknowledges that the services to be rendered by him are of a special, unique 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 or otherwise, to injunctive and other equitable relief to prevent or curtail any breach of this Agreement by him. 14. 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. 7 15. 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. 16. 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. 17. 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: Clark Consulting, Inc. 102 South Wynstone Park Drive North Barrington, Illinois 60010 Attn: Mr. Thomas M. Pyra Chief Operating Officer With a copy in the event of notice to the Company or CI to: Vedder, Price, Kaufman and Kammholz, P.C. 222 N. LaSalle Street Chicago, Illinois 60601 Attn: Lane R. Moyer, Esq. If to Employee: Mr. Jeffrey W.Lemajeur 9 E. Emerson Street Arlington Heights, IL 60005 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, 8 telegram, facsimile transmission, telex or personal delivery, on the date of actual transmission or, as the case may be, personal delivery. 18. 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. 19. 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. 20. Application of Terms. Whenever used herein the terms Clark, Inc., Clark Consulting, Inc., (or any abbreviations thereof) shall include all affiliates and successors thereof. 21. 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. 22. 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] 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date. CLARK CONSULTING, INC. By:/s/ Thomas M. Pyra ----------------------- Thomas M. Pyra Chief Operating Officer Dated: July 16, 2004 ------------------- EMPLOYEE: /s/ Jeffrey W. Lemajeur -------------------------- Jeffrey W. Lemajeur 10