Exhibit
10.13
EMPLOYMENT AGREEMENT
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This Employment Agreement ("Agreement") is made and entered into by DA
CONSULTING GROUP, INC., a Texas corporation, formerly known as DA International,
Inc. (hereinafter the "Company") and XXXXXXXX X. XXXXXXXX (hereinafter the
"Employee").
In consideration of the mutual promises set forth below and other good and
valuable consideration, the receipt and sufficiency of which the parties
acknowledge, the Company and Employee agree as follows:
1. EMPLOYMENT. The Company employs Employee and Employee accepts
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employment on the terms and conditions set forth in this Agreement.
2. NATURE OF EMPLOYMENT. Employee shall serve as Chairman of the Board
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of Directors. As Chairman, Employee shall lead the Company's Board of Directors
(the "Board") in establishing the strategy and overall objectives of the Company
and in reviewing the performance of the Company's management in pursuing such
strategy and achieving such objectives. Employee shall abide by Company
policies, procedures, and practices as they may exist and be in force from time
to time.
3. COMPENSATION.
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(a) Salary. Effective 4 April 2000 compensation for Employee's
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services under this Agreement initially shall be One Hundred Fifty Thousand
Dollars ($150,000) per year, payable in equal monthly installments in arrears.
The Employee's salary shall be reviewed annually by the Board (or the Committee
thereof charged with establishing executive compensation, hereinafter, the
"Committee") by January 1 of each year and may be increased in the Board's (or
such Committee's) discretion, provided that such salary for any year shall not
be reduced below the salary for the immediately preceding year.
(b) Reimbursement of Expenses. The Company shall reimburse
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Employee for all expenses reasonably incurred by her on behalf of the Company.
In addition, the Company shall reimburse Employee for all expenses incurred by
her for her membership and participation in professional associations,
continuing education, and maintenance of professional licenses.
4. TERM OF EMPLOYMENT. Employee shall serve at the pleasure of the
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Board. Employee may resign at any time upon 90 days notice, and Employee's
employment under this Agreement may be terminated at any time in the discretion
of the Board, provided that the compensation and benefits described in Section 3
shall continue to be paid for 90 days following the Board's notice to Employee
of her termination of employment under this Agreement. In the event of a change
of control taking place and Employee's employment is terminated within 180 days
of that event then the Employee will receive 180 days notice and continue to
be compensated as described in Section 3 for that duration.
5. COVENANT NOT TO COMPETE. Employee acknowledges that by virtue of
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her employment relationship, she shall have access to and control of
confidential and proprietary information concerning the Company's business and
that the Company's business depends, to a considerable extent, on the individual
skills, efforts, and leadership of Employee. Accordingly and in consideration
of the Company's commitments to Employee under this Agreement, Employee
expressly covenants and agrees that during the term of this Agreement and for
eighteen (18) months following the termination of her employment (unless such
termination is by the Company without Cause or by the Employee for Good Reason),
Employee will not, without the prior written consent of Company:
(a) on Employee's own or another's behalf, whether as an officer,
director, stockholder, partner, associate, owner, employee, consultant or
otherwise, directly or indirectly:
(i) solicit or do business which is the same, similar to, or
otherwise in competition with the business engaged in by the Company, from
or with persons or entities who are clients or customers of the Company,
who were clients or customers of the Company at any time during the last
year of Employee's employment with the Company, or to whom the Company had
made proposals for business at any time during the last year of Employee's
employment with the Company; or
(ii) offer employment to, or otherwise solicit for
employment, any employee or other person who had been employed by the
Company during the last year of Employee's employment with the Company;
(b) be employed (or otherwise engaged) in a management capacity by
any person or entity that directly competes with the Company.
Employee further acknowledges that the covenants contained in this Section
5 are reasonably necessary to protect the legitimate business interests of the
Company and are reasonable with respect to scope, time, and territory and are
described with sufficient accuracy and definiteness to enable her to understand
the scope of the restrictions imposed on her. The terms and conditions of this
Section 5 shall survive expiration or termination of this Agreement or
Employee's employment and shall not be affected by any change or modification of
this Agreement unless specific reference is made to this Section 5.
It is agreed that ownership, directly or indirectly, of not more than five
percent (5%) of the issued and outstanding stock of a corporation, the shares of
which are regularly traded on a national securities exchange or in the
over-the-counter market, shall not be deemed to be in violation of this Section
5.
6. REMEDIES. Employee agrees that her breach or violation of Section 5
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(Covenant Not to Compete), will result in immediate and irreparable harm to the
Company for which legal remedies would be inadequate. Therefore, in addition to
any legal or other relief to which the Company may be entitled, the Company may
seek legal and equitable relief, including but not limited to, preliminary and
permanent injunctive relief.
7. EMPLOYEE REPRESENTATION. Employee represents and warrants that her
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employment and obligations under this Agreement will not breach any duty or
obligation she owes to another person or entity.
8. COMPANY REPRESENTATION. Company represents and warrants that it has
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no obligation which would prohibit it from entering into this Agreement or
complying with its provisions and that it has the authority to enter into this
Agreement.
9. WAIVER OF BREACH. The Company's or Employee's waiver of any breach
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of a provision of this Agreement shall not waive any subsequent breach by the
other party.
10. ENTIRE AGREEMENT. This Agreement including any schedule, exhibit or
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attachment hereto: (i) supersedes all other understandings and agreements, oral
or written, between the parties with respect to the subject matter of this
Agreement including any schedule, exhibit or attachment hereto; and (ii)
constitutes the sole agreement between the parties with respect to this subject
matter. Each party acknowledges that: (i) no representations, inducements,
promises or agreements, oral or written, have been made by any party or by
anyone acting on behalf of any party, which are not embodied in this Agreement
including any schedule, exhibit or attachment hereto; and (ii) no agreement,
statement or promise not contained in this Agreement shall be valid. No change
or modification of this Agreement shall be valid or binding upon the parties
unless such change or modification is in writing and is signed by the parties.
11. SEVERABILITY. If a court of competent jurisdiction holds that any
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provision or sub-part thereof contained in this Agreement is invalid, illegal or
unenforceable, that invalidity, illegality or unenforceability shall not affect
any other provision in this Agreement. Additionally, if any of the provisions,
clauses or phrases in Section 5 (Covenant Not to Compete) are held unenforceable
by a court of competent jurisdiction, then the parties desire that they be
"blue-penciled" or rewritten by the court to the extent necessary to render them
enforceable.
12. PARTIES BOUND. The terms, provisions, covenants and agreements
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contained in this Agreement shall apply to, be binding upon and inure to the
benefit of the Company's successors and assigns; however the Company may not
assign this Agreement without the Employee's prior written consent.
13. GOVERNING LAW. This Agreement and the employment relationship
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created by it shall be governed by Texas law.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the day and
year written below.
/s/ Xxxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx Date 12 October 00
DA CONSULTING GROUP, INC.
By: /s/ Xxxxxx Xxxxxx VP HR for DACG Date 4 April 2000
