Employment Agreement - LEV Acquisition Corp. and Kenneth Kudrey
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into the 28th
day of May, 1999 (the "Effective Date"), by and between Kenneth Kudrey (the
"Employee"), and LEV Acquisition Corp., a Georgia corporation (the "Company").
W I T N E S S E T H :
--------------------
WHEREAS, the Company's parent corporation, The InterCept Group, Inc.
("InterCept"), has acquired all outstanding capital stock of L. E. Vickers &
Associates, Inc. ("Vickers") and Data Equipment Services, Inc. ("Data") pursuant
to an Acquisition and Merger Agreement dated May 28th, 1999;
WHEREAS, the Company recognizes Employee's contributions in connection with
his former employment with Vickers and desires to provide for the employment of
Employee by the Company;
WHEREAS, Employee is willing to serve the Company and InterCept on the terms
and conditions herein provided.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Employee and the Company,
including, without limitation, the premises and covenants contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Scope of Employment
1.1 Employment. Subject to the terms hereof, the Company hereby agrees
to employ Employee, and Employee hereby accepts such employment. Employee shall
report to and assist the President of the Company (the "Reporting Officer") in
performing data center operational and management functions substantially
similar to the function Employee performed for Vickers prior to InterCept's
acquisition (such duties and services referred to as the "Services"). The
Reporting Officer may, in his or her discretion, request that Employee perform
other or additional services as are consistent with the position of Employee and
such other or additional services shall also be considered Services. The
Reporting Officer may, in his or her discretion, assign to Employee such
additional or different title or titles, having equivalent stature to those
titles currently held, as are appropriate to the Services being performed by
Employee. At the request and in the discretion of the Reporting Officer,
Employee shall serve as an officer or director of any subsidiary or affiliate of
the Company, and shall perform services for any such subsidiary or affiliate as
are appropriate to and consistent with the Services being performed by Employee
for the Company. Employee shall devote substantially all of Employee's
productive business time, energy and skill (except on vacation days and
holidays) to performing his obligations hereunder and shall perform his
obligations hereunder diligently, faithfully and to the best of Employee's
abilities.
<PAGE>
1.2 Place of Performance. During the term of his employment hereunder (the
"Term"), Employee shall be based at the offices of the Company in Cookeville,
Tennessee, except for reasonably required business travel.
1.3 Compliance with Policies. Subject to the terms of this Agreement, during
the Term, Employee shall comply in all material respects with all policies and
procedures applicable to similarly situated employees of the Company and
InterCept generally and specifically to Employee as may be established by the
Company and InterCept.
Section 2. Term. The term shall be for the period from the Effective Date
until May 27th, 2001 (the "Term"), subject, however, to prior termination as
provided for in Section 5 of this Agreement. The term of employment shall
automatically extended by twelve (12) months upon expiration of the initial term
and each anniversary thereafter unless the Company gives written notice to the
other prior to the beginning of the term.
Section 3. Compensation; Expenses.
3.1 (a) Base Salary. Employee shall be paid a base salary (the "Base
Salary") during the Term at the rate of $125,000 per year. The Base Salary and
expense reimbursements pursuant to this Section 3 shall be (i) payable bi-
monthly on the schedule that the Company may implement for similarly situated
employees from time to time for such payments, and (ii) subject to any
withholdings and deductions required by applicable law. In the event of
termination of this Agreement by either party for any reason other than a
termination of the Employee by the Company for cause, the Company shall pay to
the employee severance compensation and benefits in the amount equal to the
Employee's then current monthly base salary each month plus benefits for six (6)
months from the date of such termination.
3.2 Expense Reimbursement. The Company shall pay or reimburse Employee for
all reasonable business expenses incurred or paid by Employee in the course of
performing his duties hereunder and in accordance with the Company policy. As a
condition to such payment or reimbursement, however, Employee shall maintain and
provide to the Company, upon the Company's request, reasonable documentation and
receipts for such expenses. In addition, for the term of this agreement, Company
shall pay employee $750 per month or provide an automobile of similar value as
an automobile allowance.
Section 4. Employee Benefits.
4.1 Benefit Plans. During the Term, Employee shall be entitled to
participate in such of the Company's retirement, supplemental retirement, profit
sharing and pension plans, life, health, disability and other insurance
programs, as well as other benefit programs, which are generally available to
other similarly situated employees of the Company, subject to the Company's
policies with respect to all such benefits or insurance programs or plans.
Employee acknowledges that such benefits may be provided by or through
InterCept. Neither the Company nor InterCept shall, by virtue of this
provision, be under any obligation to Employee to continue to maintain any
particular plan or program or any particular benefit level under any plan or
program.
2
<PAGE>
4.2 Vacation. Employee shall be entitled to vacation during the Term, to be
accrued and taken in accordance with a policy that is no less favorable for
Employee than the Company's normal vacation policy applicable to similarly
situated employees; provided that Employee shall be entitled to at least 3 weeks
(15) days vacation each year during the Term.
Section 5. Termination.
5.1 Death or Total Disability. Employee's employment hereunder shall
terminate upon Employee's death. The Company may, in accordance with applicable
state and federal laws and regulations, terminate Employee's employment
hereunder in the event of Employee's total disability (total disability meaning
the inability of Employee to perform substantially all of his current duties as
required hereunder for a continuous period of 90 days because of mental or
physical condition, illness or injury).
5.2 Cause. The Company may terminate Employee's employment hereunder for
"Cause." "Cause" shall mean (a) Employee's default, willful malfeasance, fraud
or dishonesty in the performance of his obligations hereunder; (b) the
commission or omission of an act, or a willful or negligent act by Employee
which causes harm to the Company; (c) the conviction of Employee for the
commission or perpetration by Employee of any felony or any act of fraud; (d)
the failure of Employee to devote his full time and attention to the business as
provided in Section 1; (e) Employee's breach of or failure to observe the terms
of this Agreement in any material respect; (f) the failure of Employee to
perform his duties hereunder in a manner satisfactory to the Reporting Officer,
as determined in his sole discretion; provided, however, that Employee shall
have 30 days (or such lesser amount of time as is necessary) to cure such
failure after receiving notice from the Company; provided, further that the
Company shall be obligated to provide only one notice to Employee pursuant to
this clause 5.2(f) and, thereafter, the Company may terminate Employee, without
Employee having a right to cure, if Employee fails to perform his duties in a
manner satisfactory to the Reporting Officer, as determined in his sole
discretion; or (g) Employee's engaging in conduct or activities involving moral
turpitude that is or are reasonably likely to cause material damage to the
business or reputation of the Company, any affiliate of the Company (including
InterCept), or any personnel thereof.
5.3 Termination Date and Notice of Termination. Any termination of
Employee's employment by the Company (other than termination upon the death of
Employee) shall be communicated by written notice to Employee, and the date of
termination shall be the date on which such notice is given.
Section 6. Pay or Play. Nothing herein shall be deemed to obligate the
Company or InterCept to use Employee's services pursuant hereto or otherwise,
and the Company and InterCept shall have fully discharged their obligations, if
any, to Employee by providing Employee with the compensation and benefits
specified hereunder.
Section 7. Representations.
7.1 Of Employee. Employee represents and warrants to the Company that
(a) his execution, delivery and performance of this Agreement do not and will
not conflict with, violate, or constitute a breach of or default under any
provision of law or regulation applicable to him or
3
<PAGE>
any provision of any agreement, contract or other instrument to which he is a
party or otherwise bound; (b) this Agreement constitutes the legal, valid and
binding obligation of Employee, enforceable against Employee in accordance with
its terms; and (c) Employee has not received any legal advice contrary to his
representations or warranties set forth in this Section 7.1.
7.2 Of the Company. The Company represents and warrants to Employee that (a)
this Agreement has been duly executed and delivered by the Company; (b) the
execution, delivery and performance of this Agreement by the Company has been
duly authorized by all necessary corporate action; (c) this Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms; (d) the execution, delivery
and performance of this Agreement by the Company do not and will not conflict
with, violate, or constitute a breach of the Articles of Incorporation or By-
laws of the Company or any of its subsidiaries or any law or regulation
applicable to the Company or any of its subsidiaries; and (e) the Company has
not received any legal advice contrary to the Company's representations and
warranties set forth in this Section 7.2.
Section 8. Non-Solicitation of Customers. During the Term of his employment
with the Company, and for a period of two (2) years thereafter, Employee shall
not directly or indirectly, through one or more intermediaries or otherwise,
solicit, direct or appropriate, or attempt to solicit, direct or appropriate any
individual or entity which is, at any time during such period, a customer or
client of the Company and with whom Employee had material contact during the
Term or at any time during which Employee performed services on behalf of the
Company for the purpose of providing a service or product to such customer or
client which is the same type of service or product offered or provided by the
Company.
Section 9. Non-Solicitation of Personnel. During the Term of his employment
with the Company, and for a period of two (2) years thereafter, Employee shall
not, directly or indirectly, through one or more intermediaries or otherwise,
employ, induce, solicit for employment, or assist others in employing, inducing
or soliciting for employment any individual who is at any time during such
period an employee or consultant of the Company for the purpose of providing
services that are the same or similar to the types of services offered to or
engaged in by the Company.
Section 10. Rights to Work Product. Except as expressly provided in this
Agreement, the Company (and its related entities) alone shall be entitled to all
benefits, profits and results arising from or incidental to Employee's
performance of the Services. To the greatest extent possible, any work product,
property, data, documentation or information or materials prepared, conceived,
discovered, developed or created by Employee in connection with performing the
Services or any other of his employment responsibilities during the Term ("Work
Product") shall be deemed to be "work made for hire" as defined in the Copyright
Act, 17 U.S.C.A. (S) 101 et seq., as amended, and owned exclusively and
perpetually by the Company. Employee hereby unconditionally and irrevocably
transfers and assigns to the Company all intellectual property or other rights,
title and interest Employee may currently have (or in the future may have) by
operation of law or otherwise in or to any Work Product. Employee agrees to
execute and deliver to the Company any transfers, assignments, documents or
other instruments that the Company may deem necessary or appropriate to vest
complete and perpetual title and ownership of any
4
<PAGE>
Work Product and all associated rights exclusively in the Company. The Company
shall have the right to adapt, change, revise, delete from, add to and/or
rearrange the Work Product or any part thereof written or created by Employee,
and to combine the same with other works to any extent, and to change or
substitute the title thereof, and in this connection Employee hereby waives the
"moral rights" of authors as that term is commonly understood throughout the
world including, without limitation, any similar rights or principles of law
which Employee may now or later have by virtue of the law of any locality,
state, nation, treaty, convention or other source. Unless otherwise specifically
agreed, Employee shall not be entitled to any compensation in addition to that
provided for in Section 3 of this Agreement for any exercise by the Company of
its rights set forth in the preceding sentence.
Section 11. Nondisclosure Covenant. Through exercise of his rights and
performance of his obligations under this Agreement, Employee will be exposed to
"Trade Secrets" and "Confidential Information" (as those terms are defined in
the next sentences). "Trade Secrets" shall mean information or data of or about
the Company or any affiliated entity, including, but not limited to, technical
or nontechnical data, formulas, patterns, compilations, programs, devices,
methods, techniques, drawings, processes, financial data, financial plans,
products plans, or lists of actual or potential customers, clients,
distributors, or licensees, that: (i) derive economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from their disclosure or use; and (ii) are the subject of efforts that are
reasonable under the circumstances to maintain their secrecy. To the extent the
foregoing definition is inconsistent with a definition of "trade secrets"
mandated under applicable law, the latter definition shall govern for purposes
of interpreting Employee's obligations under this Agreement. "Confidential
Information" shall mean valuable, non-public, competitively sensitive data and
information relating to the business of the Company or any affiliated entity,
other than Trade Secrets. Employee acknowledges and agrees that any
unauthorized disclosure or use of any Trade Secrets or Confidential Information
would be wrongful and would likely result in immediate and irreparable injury to
the Company. Except as required to perform his obligations under this Agreement
or except with Company's prior written permission, Employee shall not, without
the express prior written consent of the Company, redistribute, market, publish,
disclose or divulge to any other person or entity, or use or modify for use,
directly or indirectly in any way for any person or entity: (i) any Trade
Secrets at any time (during or after the Term) during which such information or
data shall continue to constitute a "trade secret" under applicable law; and
(ii) any Confidential Information during the Term and for a period of two (2)
years after termination. Employee agrees to cooperate with any reasonable
confidentiality requirements of the Company. Employee shall immediately notify
the Company of any unauthorized disclosure or use of any Trade Secrets or
Confidential information of which Employee becomes aware.
Section 12. Return of Materials. At any point during the Term at the
specific request of the Company, or, in any event, as promptly as practicable
after Employee's employment hereunder has been terminated, Employee will return
to the Company all Work Product (including any copies or reproductions thereof
and any materials constituting or containing Trade Secrets or Confidential
Information of the Company) that are in Employee's possession or control.
5
<PAGE>
Section 13. Acknowledgment. The parties acknowledge and agree that the
covenants of Employee in Sections 8, 9, 10, 11 and 12 (collectively, the
"Protective Covenants") are reasonable as to time, scope and territory given the
Company's need to protect its substantial investment in its Confidential
information, Trade Secrets and customer relationships, and particularly given
(a) the compensation and benefits that are to be provided Employee, (b) the
Company's investment of time, effort and capital in enhancing Employee's
business skills and opportunities, (c) the complexity and competitive nature of
the Company, and (d) that Employee has sufficient skills to find alternative,
commensurate employment or consulting work in Employee's field of expertise that
would not entail a violation of the Protective Covenants. Notwithstanding
Section 14 below, the parties further acknowledge that any breach or threatened
breach of a Protective Covenant by Employee is likely to result in irreparable
injury to the Company, and therefore, in addition to all remedies provided at
law or in equity (which remedies shall be cumulative and not mutually
exclusive), Employee agrees that the Company shall be entitled to file suit in a
court of competent jurisdiction to seek a temporary restraining order and a
permanent injunction to prevent a breach or contemplated breach of the
Protective Covenant.
Section 14. Arbitration. Any controversy or claim brought by any person or
entity against the Employee, the Company or any of its officers, directors,
employees or agents arising from, out of or relating to this Agreement, the
breach thereof (other than controversies or claims arising from, out of or
relating to the provisions in Sections 8, 9, 10, 11 and 12 with respect to which
either party may upon 24 hours notice to the other seek injunctive and/or other
equitable relief in a court of competent jurisdiction as set forth in Section
15.2), or the employment or termination thereof of Employee by the Company which
would give rise to a claim under federal, state or local law (including but not
limited to claims based in tort or contract, claims for discrimination under
state or federal law, and/or claims for violation of any federal, state or local
law, statute or regulation) ("Claims") shall be submitted to an impartial
mediator ("Mediator") selected jointly by the parties. Both parties shall
attend a mediation conference and attempt to resolve any and all Claims. If
they are not able to resolve all Claims, any unresolved Claims, including any
dispute as to whether a matter constitutes a Claim which must be submitted to
arbitration, shall be determined by final and binding arbitration in Atlanta,
Georgia in accordance with the Model Employment Dispute Resolution Rules
("Rules") of the American Arbitration Association, by an experienced employment
arbitrator licensed to practice law in the State of Georgia in accordance with
the Rules, except as herein specified. The arbitrator shall be selected by
alternate striking from a list of six arbitrators, half of which shall be
supplied by the Company and half by Employee. The party not initiating the
arbitration shall strike first. The process shall be repeated twice until an
arbitrator is selected. If an arbitrator is still not selected, the Mediator
shall provide a list of three names which will be alternately struck, with the
party initiating the arbitration striking first, until a selection is made.
A demand for arbitration shall be made within a reasonable time after the
Claim has arisen. In no event shall the demand for arbitration be made after
the date when institution of legal and/or equitable proceedings based on such
Claim would be barred by the applicable statute of limitations. Each party to
the arbitration will be entitled to be represented by counsel. The parties
shall formulate a written plan of pre-hearing discovery by agreement, or, if no
agreement can be reached, a plan of discovery shall be formulated by the parties
in collaboration with the Mediator, whose decision shall be final. By mutual
agreement of the parties, additional
6
<PAGE>
depositions may be taken. The arbitrator shall have the authority to hear and
grant a motion to dismiss and/or for summary judgment, applying the standards
governing such motions under the Federal Rules of Civil Procedure. Each party
shall have the right to subpoena witnesses and documents for the arbitration
hearing. A court reporter shall record all arbitration proceedings.
With respect to any Claim brought to arbitration hereunder, either party may
be entitled to recover whatever damages would otherwise be available to that
party in any legal proceeding based on the federal and/or state law applicable
to the matter and as specified by Section 15.2. The decision of the arbitrator
may be entered and enforced in any court of competent jurisdiction by either the
Company or Employee. Unless otherwise awarded by the Mediator, each party shall
pay the fees of their respective attorneys, the expenses of their witnesses and
any other expenses connected with presenting their Claim or defense, and shall
pay that party's pro rata share of other costs of the arbitration, including the
fees of the Mediator, the arbitrator, the cost of any record or transcript of
the arbitration, administrative fees, and other fees and costs. Should Employee
or the Company pursue any dispute or matter covered by this Section by any
method other than said arbitration, the responding party shall be entitled to
recover from the other party all damages, costs, expenses, and attorneys' fees
incurred as a result of such action. The provisions contained in this Section
14 shall survive the termination and/or expiration of this Agreement.
The parties indicate their acceptance of the foregoing arbitration requirement
by initialing below:
/s/ DRJ /s/ KEK
---------------------------- ------------------------------
For the Company Employee
Section 15. Miscellaneous.
15.1 Binding Effect. This Agreement shall inure to the benefit of and
shall be binding upon Employee and his executor, administrator, heirs, personal
representative and assigns, and the Company and its successors and assigns;
provided, however, that neither party hereto shall be entitled to assign any of
its rights, or delegate any of its duties (except, in the case of Employee,
customary delegation of authority not inconsistent with this Agreement; and
except, in the case of the Company, to any person or entity acquiring all or
substantially all of the assets of the Company or to any entity controlling,
controlled by or under common control with the Company), hereunder without the
prior written consent of the other party. Any attempted assignment or
delegation in violation of this provision shall be null and void.
15.2 Governing Law. This Agreement shall be deemed to be made in, and in all
respects shall be interpreted, construed and governed by and in accordance with,
the laws of the State of Georgia. The parties hereto agree that the state or
federal courts in the State of Georgia shall have personal jurisdiction over
them with respect to, and shall be the exclusive forum for the resolution of,
any matter or controversy arising from or with respect to Sections 8, 9, 10, 11
and 12 of this Agreement. Service of a summons and complaint concerning any
such matter or controversy may, in addition to any other lawful means, be
effected by sending a copy of such
7
<PAGE>
summons and complaint by certified mail to the party to be served as specified
in Section 15.4 hereof.
15.3 Headings. The section and subsection headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
15.4 Notices. Unless otherwise agreed to in writing by the Parties hereto,
all communications provided for hereunder shall be in writing and shall be
deemed to be given when delivered if delivered in person or by telecopy or three
(3) business days after being sent by first-class mail, registered or certified,
return receipt requested, with proper postage prepaid, and
(a) If to the Employee, addressed to;
Kenneth Kudrey
-------------------------------------
, Tennessee
---------------- --------
(b) If to the Company, addressed to:
LEV Acquisition Corp.
3150 Holcomb Bridge Road, Suite 200
Norcross, Georgia 30071
Attn: Donny R. Jackson, President
with a copy to:
Susan L. Spencer, Esq.
Nelson Mullins Riley & Scarborough, L.L.P.
999 Peachtree St., N.E., Suite 1400
Atlanta, Georgia 30309
or to such other person or address as shall be furnished in writing by any party
to the other prior to the giving of the applicable notice or communication.
15.5 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
15.6 Entire Agreement. This Agreement is intended by the parties to be the
final expression of their agreement with respect to the subject matter hereof
and is the complete and exclusive statement of the terms thereof,
notwithstanding any representations, statements or agreements to the contrary
heretofore made. This Agreement may be modified only by a written instrument
signed by each of the parties hereto.
15.7 Severability. All provisions of this Agreement are severable from one
another, and the unenforceability or invalidity of any provision of this
Agreement shall not affect the
8
<PAGE>
validity or enforceability of the remaining provisions of this Agreement;
provided, however, that should any judicial body interpreting this Agreement
deem any provision to be unreasonably broad in time, territory, scope or
otherwise, the Company and Employee intend for the judicial body, to the
greatest extent possible, to reduce the breadth of the provision to the maximum
legally allowable parameters rather than deeming such provision totally
unenforceable or invalid.
15.8 Modification and Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
in writing and duly executed by the party to be charged with the waiver or
modification. The waiver by either the Company or Employee of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
prior or subsequent breach of the same provision by the other party or a waiver
of a breach of another provision of this Agreement by the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
"Company"
LEV Acquisition Corp.
By: /s/ Donny R. Jackson
---------------------------------
Name: Donny R. Jackson
Title: President
"Employee"
/s/ Kenneth Kudrey
------------------------------------
Name: Kenneth Kudrey
9