Employment Agreement - Perficient Inc. and John T. McDonald
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT dated January 3, 2001 and effective as of
October 30, 2000, between Perficient, Inc., a Delaware corporation (the
"Company"), and John T. McDonald ("Employee").
WITNESSETH:
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
two years, commencing as of the date hereof and continuing through and including
December 31, 2002, 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.
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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.
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 $189,000
per annum, less all necessary and 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) Employee shall be entitled to a bonus of $75,000 if net
revenue for the year ending December 21, 2001 (on a pro forma basis, giving
effect to acquisitions during the year as if they had occurred on January 1,
2001) is $50 million or more and the Company has a net profit.
(c) In addition, 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. As further
consideration for the agreements and covenants hereunder, the Company shall,
within 120 days of the effective date of this Agreement, grant to the Employee
an option to purchase 100,000 shares of Common Stock of the Company, exercisable
at the closing price of the Common Stock on the date immediately preceding the
date of grant . Notwithstanding anything to the contrary in any stock option
agreement between Employee and the Company, all stock options granted to
Employee shall continue to vest in accordance with their schedule and shall not
terminate if Employee ceases to be an employee of the Company as long as
Employee continues to serve as an officer, director or consultant of the
Company.
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.
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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 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.
(a) The Company shall have the right, upon delivery of written
notice to the Employee, to terminate the Employee's employment hereunder prior
to the expiration of the Employment Term (i) pursuant to a Termination for Cause
or (ii) pursuant to a Without Cause Termination (all as defined below). The
Employee shall have the right, upon delivery of written
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notice to the Company, to terminate his employment hereunder prior to the
expiration of the Employment Term by providing the Company with not less than 30
days prior written notice.
(b) In the event that the Company terminates the Employee's
employment pursuant to a Without Cause Termination, the Company shall make a
lump-sum payment to the Employee in an amount equal to the lesser of (i) three
months Salary or (ii) the amount of Salary payable during the remaining term of
this Agreement, and shall pay Employee his reimbursable expenses and benefits
owing to Employee through the day on which Employee is terminated. No other
payments shall be made, or benefits provided, by the Company under this
Agreement in the event of a Without Cause Termination.
(c) In the event that the Company terminates the Employee's
employment hereunder due to a Termination for Cause or the Employee terminates
employment with the Company, 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(c).
(d) For purposes of this Agreement, the following terms have
the following meanings:
(i) The term "Termination for Cause" means, to the maximum
extent permitted by applicable law, a termination of the Employee's employment
by the Company attributed to (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
conduct that is intentional or grossly negligent that results in material injury
to the Company; or (d) the material breach by Employee of any written covenant
or agreement with the Company under this Agreement or otherwise, including, but
not limited to, an agreement 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.
(ii) The term "Without Cause Termination" means a termination
of the Employee's employment by the Company other than due to (a) a Termination
for Cause, (b) Disability, (c) the Employee's death, or (d) the expiration of
this Agreement.
10. CHANGE IN CONTROL - TERMINATION OF EMPLOYMENT AND COMPENSATION
IN EVENT OF TERMINATION.
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(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. In
addition, and notwithstanding anything contained in any other agreement,
including any stock option agreement between the Company and the Employee,
immediately prior to a Change of Control, any and all options, agreements or
rights to purchase securities of the Company granted to the Employee shall vest
in their entirety, regardless of the satisfaction of any conditions contained
therein.
(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 " Act")) becomes a "beneficial owner" (as such term is used in Rule13d-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 under the act 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 (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 the business of providing virtual professional services
organizations to Internet service corporations. The ownership by Employee of 5%
or less of the
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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). In addition, the ownership by Beekman
Ventures, Inc. or any affiliate of Beekman Ventures, Inc. or any stockholder,
officer, director or agent of Beekman Ventures, Inc. ("BV") in connection with
the activities of BV as a venture capital firm, and the services provided by
Employee to BV in connection with, any investment in any private or public
company shall not be deemed to be a breach of any of the provisions of this
Agreement and of this paragraph (b) of this Agreement .
(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 competitive with the business of providing
virtual professional services organizations to Internet service corporations
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).
Employee's participation as a director or advisor in a company or other business
enterprise in which BV has an interest shall not be deemed to be a violation of
this Agreement.
(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
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 of the
Company or any of its subsidiaries or affiliates during Employee's employment
with the Company for a business that is competitive with the business of
providing virtual professional services organizations to Internet service
corporations..
(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 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.
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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 as described above 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.
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
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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
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
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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
Title: Chief Financial Officer
/s/ JOHN T. MCDONALD
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John T. McDonald, Individually
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