Employment Agreement - Perficient Inc. and John T. McDonald
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT dated effective as of August 1, 1999,
between Perficient, Inc. a Delaware corporation (the "Company"), and John T.
McDonald ("Employee").
W I T N E S S E T H :
WHEREAS, the Company desires that Employee continue to be employed by
it and render services to it, and Employee is willing to be so employed and to
render such services to the Company, all upon the terms and subject to the
conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. EMPLOYMENT. Subject to and upon the terms and conditions
contained in this Agreement, the Company hereby agrees to continue to employ
Employee and Employee agrees to continue in the employ of the Company, for the
period set forth in Paragraph 2 hereof, to render to the Company, its affiliates
and/or subsidiaries the services described in Paragraph 3 hereof.
2. TERM. Employee's term of employment under this Agreement shall
be one year, commencing on the date hereof and continuing through and including
July 31, 2000, unless extended in writing as provided below or earlier
terminated pursuant to the terms and conditions set forth herein (the
"Employment Term").
3. DUTIES.
(a) Employee shall serve as Chief Executive Officer of the
Company at the discretion of the Board of Directors of the Company. Employee
shall perform all duties and services incident to the positions held by him.
(b) Employee agrees to abide by all By-laws and policies of the
Company promulgated from time to time by the Company.
4. EXCLUSIVE SERVICES AND BEST EFFORTS. Employee agrees to devote
his best efforts, energies and skill to the discharge of the duties and
responsibilities attributable to his position, and to this end, he will devote
his full time and attention during regular business hours to the business and
affairs of the Company, subject to the provisions of the last sentence of
subparagraph 11(b) hereof.
5. COMPENSATION.
(a) As compensation for his services and covenants hereunder,
Employee shall receive a salary ("Salary"), payable pursuant to the Company's
normal payroll procedures in place from time to time, at the rate of $120,000
per annum, less all necessary and
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required federal, state and local payroll deductions. Employee shall be
entitled to receive salary increases as may be determined from time to time
by the Board of Directors of the Company.
(b) In addition to such Salary, Employee shall be entitled to
receive such bonuses as may be determined from time to time by the Board of
Directors of the Company and shall be eligible to receive stock options
entitling Employee to acquire shares of Common Stock under the Company's 1999
Stock Option/Stock Issuance Plan, pursuant to the policies of the Company from
time to time to generally make available stock options, to executive employees.
6. BUSINESS EXPENSES. Employee shall be reimbursed for, and
entitled to advances (subject to repayment to the Company if not actually
incurred by Employee) with respect to those business expenses incurred by him
which are reasonable and necessary for Employee to perform his duties under this
Agreement in accordance with policies established from time to time by the
Company.
7. EMPLOYEE BENEFITS.
(a) During the Employment Term, Employee shall be entitled to
such insurance, disability and health and medical benefits and be entitled to
participate in such retirement plans or programs as are from time to time
generally made available to executive employees of the Company pursuant to the
policies of the Company; PROVIDED THAT Employee shall be required to comply with
the conditions attendant to coverage by such plans and shall comply with and be
entitled to benefits only in accordance with the terms and conditions of such
plans. The Company may withhold from any benefits payable to Employee all
federal, state, local and other taxes and amounts as shall be permitted or
required to be withheld pursuant to any applicable law, rule or regulation.
(b) Employee shall be entitled to vacation in accordance with
the Company's policy in effect for executive staff, which shall be taken at such
time or times as shall be mutually agreed upon with the Company.
8. DEATH AND DISABILITY.
(a) The Employment Term shall terminate on the date of
Employee's death, in which event Employee's Salary, reimbursable expenses and
benefits owing to Employee through the date of Employee's death shall be paid to
his estate. Employee's estate will not be entitled to any other compensation
upon termination of this Agreement pursuant to this subparagraph 8(a).
(b) The Employment term shall terminate upon Employee's
Disability. For purposes of this Agreement, "Disability" shall mean a physical
or mental disability or infirmity that prevents the material performance by
Employee of his duties hereunder lasting for a continuous period of six months
or longer. The reasoned and good faith judgment of the Company's Board of
Directors as to Disability shall be based on such competent medical evidence as
shall be presented to it by Employee or by any physician or group of physicians
or other competent medical experts employed by Employee or the Company to advise
the Company's Board of Directors. In case of such termination, Employee shall
be entitled to
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receive his Salary, reimbursable expenses and benefits owing to Employee
through the date of termination. In addition, the Company shall pay to
Employee, within 60 days of the date of Employee's termination, in a
lump-sum, an amount equal to Employee's then annual Salary. Employee will not
be entitled to any other compensation upon termination of his employment
pursuant to this subparagraph 8(b).
9. TERMINATION. The Company shall have the right to terminate the
employment of Employee and to terminate this Agreement in the event of: (a) the
repeated willful failure of Employee substantially to perform his duties
hereunder (other than any such failure due to physical or mental illness) that
has not been cured reasonably promptly after a written demand for substantial
performance is delivered to Employee by the Company's Board of Directors, which
demand identifies the manner in which the Company's Board of Directors believes
that Employee has not substantially performed his duties hereunder; (b)
conviction of, or entering a plea of NOLO CONTENDERE to, a crime that
constitutes a felony; (c) Employee's engaging in serious misconduct that is
injurious to the Company; or (d) the material breach by Employee of any written
covenant or agreement with the Company not to disclose any information
pertaining to the Company or not to compete with the Company, including (without
limitation) the covenants and agreements contained in paragraph 11 hereof. Upon
such termination, the Company shall be released from any and all further
obligations under this Agreement, except that the Company shall be obligated to
pay Employee his Salary, reimbursable expenses and benefits owing to Employee
through the day on which Employee is terminated. Employee will not be entitled
to any other compensation upon termination of this Agreement pursuant to this
Paragraph 9.
10. CHANGE IN CONTROL - TERMINATION OF EMPLOYMENT AND COMPENSATION IN
EVENT OF TERMINATION.
(a) After a Change in Control (as defined below) of the Company
has occurred, if either Employee terminates his employment within six (6) months
after he has obtained actual knowledge of the Change in Control or the Company
(or any successor thereto) terminates Employee's employment with the Company
after the Change in Control, Employee shall be entitled to receive a lump-sum
payment (the "Termination Compensation"), in cash, on the Termination Date, in
an amount equal to three months of Employee's then annual Salary.
(b) For purposes hereof, a "Change In Control" shall be deemed
to have occurred if: (i) any "person" or "group" (as such terms are used in
Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "1934 Act")) becomes a "beneficial owner" (as such term is used in Rule
13d-3 promulgated under the Act), after the date hereof, directly or indirectly,
of securities of the Company representing 50% or more of the combined voting
power of the Company's then outstanding securities; (ii) a change in "control"
of the Company (as the term "control" is defined in Rule 12b-2 or any successor
rule promulgated under the Act) shall have occurred; (iii) the stockholders of
the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
of the Company's assets; or (iv) the stockholders of the Company approve a
merger or consolidation of the Company with any other company, other than a
merger or consolidation which would result in the combined voting power of the
Company's voting securities outstanding immediately prior thereto continuing to
represent
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(either by remaining outstanding or by being converted into voting securities
of the surviving entity) more than 50% of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation. Notwithstanding the
foregoing, any transaction involving a leveraged buyout or other acquisition
of the Company which would otherwise constitute a Change in Control, in which
Employee participates in the surviving or successor entity (other than solely
as an employee or consultant), shall not constitute a Change in Control.
11. DISCLOSURE OF TRADE SECRETS AND OTHER PROPRIETARY INFORMATION;
RESTRICTIVE COVENANTS.
(a) Employee acknowledges that he is bound by the terms of the
Company's Confidentiality and Intellectual Property Agreement.
(b) Employee will not, during the term of this Agreement,
directly or indirectly, as an employee, employer, consultant, agent, principal,
partner, manager, stockholder, officer, director, or in any other individual or
representative capacity, engage in or participate in any business that is
competitive with any business carried on by the Company or any of its
subsidiaries or affiliates during the term of this Agreement. The ownership by
Employee of 5% or less of the issued and outstanding shares of a class of
securities which is traded on a national securities exchange or in the
over-the-counter market, shall not cause Employee to be deemed a shareholder
under this subparagraph 11(b) or constitute a breach of this subparagraph 11(b).
(c) Employee will not, during the term of this Agreement and for
a period of 24 months thereafter, directly or indirectly, work as an employee,
employer, consultant, agent, principal, partner, manager, stockholder, officer,
director, or in any other individual or representative capacity for any person
or entity who or which was a competitor of the Company or any of its
subsidiaries or affiliates during the term of Employee's employment with the
Company. The ownership by Employee of 5% or less of the issued and outstanding
shares of a class of securities which is traded on a national securities
exchange or in the over-the-counter market, shall not cause Employee to be
deemed a shareholder under this subparagraph 11(c) or constitute a breach of
this subparagraph 11(c).
(d) Employee will not, during the term of this Agreement and for
a period of 24 months thereafter, on his behalf or on behalf of any other
business enterprise, directly or indirectly, under any circumstance other than
at the direction and for the benefit of the Company, (i) solicit for employment
or employ any person who was employed by the Company or any of its subsidiaries
or affiliates during Employee's employment with the Company, or (ii) call on,
solicit, or take away any person or entity who or which was a customer or the
Company or any of its subsidiaries or affiliates during Employee's employment
with the Company.
(e) It is expressly agreed by Employee that the nature and scope
of each of the provisions set forth above in this Paragraph 11 are reasonable
and necessary. If, for any reason, any aspect of the above provisions as it
applies to Employee is determined by a court of competent jurisdiction to be
unreasonable or unenforceable, the provisions shall only be modified to the
minimum extent required to make the provisions reasonable and/or enforceable, as
the case may be. Employee acknowledges and agrees that his services are of
unique character
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and expressly grants to the Company or any subsidiary or affiliate of the
Company or any successor of any of them, the right to enforce the above
provisions through the use of all remedies available at law or in equity,
including, but not limited to, injunctive relief.
(f) This Paragraph 11 and Paragraphs 12 and 13 hereof (and
Paragraphs 14 through 19 hereof as they may apply to such Paragraphs) shall
survive the expiration or termination of this Agreement for any reason.
12. COMPANY PROPERTY.
(a) Any patents, inventions, discoveries, applications or
processes designed, devised, planned, applied, created, discovered or invented
by Employee in the course of Employee's employment under this Agreement and
which pertain to any aspect of the Company's or its subsidiaries' or affiliates'
business shall be the sole and absolute property of the Company, and Employee
shall promptly report the same to the Company and promptly execute any and all
documents that may from time to time reasonably be requested by the Company to
assure the Company the full and complete ownership thereof.
(b) All records, files, lists, including computer generated
lists, drawings, documents, equipment and similar items relating to the
Company's business which Employee shall prepare or receive from the Company
shall remain the Company's sole and exclusive property. Upon termination of this
Agreement, Employee shall promptly return to the Company all property of the
Company in his possession. Employee further represents that he will not copy or
cause to be copied, print out or cause to be printed out any software, documents
or other materials originating with or belonging to the Company. Employee
additionally represents that, upon termination of his employment with the
Company, he will not retain in his possession any such software, documents or
other materials.
13. EQUITABLE RELIEF. It is mutually understood and agreed that
Employee's services are special, unique, unusual, extraordinary and of an
intellectual character giving them a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages in an action at law.
Accordingly, in the event of any breach of this Agreement by Employee,
including, but not limited to, the breach of any of the provisions of Paragraphs
11 or 12 hereof, the Company shall be entitled to equitable relief by way of
injunction or otherwise in addition to any damages which the Company may be
entitled to recover. In addition, the Company shall be entitled to reimbursement
from Employee, upon request, of any and all reasonable attorneys' fees and
expenses incurred by it in enforcing any term or provision of this Agreement.
14. CONSENT TO TEXAS JURISDICTION AND VENUE. The Employee hereby
consents and agrees that state courts located in Travis County, Texas and the
United States District Court for the Western District of Texas each shall have
personal jurisdiction and proper venue with respect to any dispute between the
Employee and the Company. In any dispute with the Company, the Employee will not
raise, and hereby expressly waives, any objection or defense to any such
jurisdiction as an inconvenient forum.
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15. NOTICE. Except as otherwise expressly provided, any notice,
request, demand or other communication permitted or required to be given under
this Agreement shall be in writing, shall be sent by one of the following means
to the Employee at his address set forth on the signature page of this Agreement
and to the Company at its address set forth on the signature page of this
Agreement, Attention: John A. Hinners (or to such other address as shall be
designated hereunder by notice to the other parties and persons receiving
copies, effective upon actual receipt), and shall be deemed conclusively to have
been given: (a) on the first business day following the day timely deposited
with Federal Express (or other equivalent national overnight courier) or United
States Express Mail, with the cost of delivery prepaid or for the account of the
sender; (b) on the fifth business day following the day duly sent by certified
or registered United States mail, postage prepaid and return receipt requested;
or (c) when otherwise actually received by the addressee on a business day (or
on the next business day if received after the close of normal business hours or
on any non-business day).
16. INTERPRETATION; HEADINGS. The parties acknowledge and agree that
the terms and provisions of this Agreement have been negotiated, shall be
construed fairly as to all parties hereto, and shall not be construed in favor
of or against any party. The section headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
17. SUCCESSORS AND ASSIGNS; ASSIGNMENT; INTENDED BENEFICIARIES.
Neither this Agreement, nor any of Employee's rights, powers, duties or
obligations hereunder, may be assigned by Employee. This Agreement shall be
binding upon and inure to the benefit of Employee and his heirs and legal
representatives and the Company and its successors. Successors of the Company
shall include, without limitation, any corporation or corporations acquiring,
directly or indirectly, all or substantially all of the assets of the Company,
whether by merger, consolidation, purchase, lease or otherwise, and such
successor shall thereafter be deemed "the Company" for the purpose hereof.
18. NO WAIVER BY ACTION. Any waiver or consent from the Company
respecting any term or provision of this Agreement or any other aspect of the
Employee's conduct or employment shall be effective only in the specific
instance and for the specific purpose for which given and shall not be deemed,
regardless of frequency given, to be a further or continuing waiver or consent.
The failure or delay of the Company at any time or times to require performance
of, or to exercise any of its powers, rights or remedies with respect to, any
term or provision of this Agreement or any other aspect of the Employee's
conduct or employment in no manner (except as otherwise expressly provided
herein) shall affect the Company's right at a later time to enforce any such
term or provision.
19. COUNTERPARTS; TEXAS GOVERNING LAW; AMENDMENTS; ENTIRE AGREEMENT.
This Agreement may be executed in two counterpart copies, each of which may be
executed by one of the parties hereto, but all of which, when taken together,
shall constitute a single agreement binding upon all of the parties hereto. This
Agreement and all other aspects of the Employee's employment shall be governed
by and construed in accordance with the applicable laws pertaining in the State
of Texas (other than those that would defer to the substantive laws of another
jurisdiction). Each and every modification and amendment of this Agreement shall
be in writing and signed by the parties hereto, and any waiver of, or consent to
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any departure from, any term or provision of this Agreement shall be in writing
and signed by each affected party hereto. This Agreement contains the entire
agreement of the parties and supersedes all prior representations, agreements
and understandings, oral or otherwise, between the parties with respect to the
matters contained herein.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the date first above written.
PERFICIENT, INC.
By: /s/ John A. Hinners
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Name: John A. Hinners
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Title: CFO
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/s/ John T. McDonald
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John T. McDonald, Individually
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]