EMPLOYMENT AGREEMENT
Exhibit
10.8
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated March 3, 2009 and effective as
of January 1, 2009, is between Perficient, Inc. a Delaware corporation (the
“Company”), and Xxxx X. XxXxxxxx (“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 three years,
commencing as of January 1, 2009, and continuing through and including December
31, 2011, unless extended in writing by mutual agreement of the parties or
earlier terminated pursuant to the terms and conditions set forth herein (the
“Employment Term”).
3.
DUTIES.
(a)
Employee shall serve as the Executive Chairman and/or Chief Executive Officer 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.
(c)
During the term of this Agreement, Employee may notify the Company of Employee's
determination to no longer serve as Chief Executive Officer and/or Executive
Chairman of the Company, but to instead serve as Chairman of the
Company. In such event, all provisions of this Agreement shall remain
in effect and Employee shall be entitled to all benefits provided for herein,
except that (i) Employee's Base Salary shall be reduced by 50% (and the dollar
value of Employee's Target Bonus opportunity shall thereby also be reduced by
50%), and (ii) Employee shall not be eligible for additional equity grants from
the Company except in the manner and in amounts similar to grants made to
non-executive directors of the Company. In the event Employee
becomes Chairman, Employee shall, notwithstanding the provisions of paragraph 4
of this Agreement, make himself available to the Company for up to 20 hours per
week, and Employee's responsibilities shall include presiding over the Board of
Directors of the Company (the "Board") and such committees of the Board as the
Board shall determine, providing oversight of corporate strategy, financing
acquisitions and investor relations, including presenting on the Company's
quarterly earnings conference calls and presenting at such investor conferences
and handling such other investor relations functions as reasonably requested by
the Company.
(d)
Employee agrees to abide by all By-laws and policies of the Company promulgated
from time to time by the Company.
4. BEST
EFFORTS. Employee agrees to devote his full business time and attention, as well
as his best efforts, energies and skill to the discharge of the duties and
responsibilities attributable to his position.
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5.
COMPENSATION.
(a) As
compensation for his services and covenants hereunder, Employee shall receive a
base salary (“Base Salary”), payable pursuant to the Company’s normal payroll
procedures in place from time to time, at the rate of $285,000 per annum, less
all necessary and required federal, state and local payroll deductions. The
Board of Directors of the Company (the “Board”) may decide, in its sole
discretion, to increase Employee’s Base Salary from time to time during the term
of this Agreement.
(b) For
each calendar year, Employee shall be eligible to receive a bonus of up to
two-hundred percent (200%) of his Base Salary (“Target Bonus”), less all
necessary and required federal, state and local payroll deductions. The criteria
for determining the amount of the bonus, and the conditions that must be
satisfied to entitle Employee to receive the bonus for any year during the term
of this Agreement shall be determined by the Board, in its sole discretion but
in a manner consistent with that used to determine Employee’s bonus in prior
years. Payment of any bonus to Employee shall be in accordance with bonus
policies established from time to time by the Company. Such bonus
will be paid not later than the March 15 immediately following the end of the
calendar year to which the bonus relates.
6.
EXPENSES. Employee shall be reimbursed for 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. Employee shall receive reimbursement for other expenses consistent with
past practice and as approved by the Compensation Committee of the Board of
Directors. The reimbursement of any such expense that is includible
in gross income for federal income tax purposes shall be paid no later than the
end of the calendar year following the calendar year in which the expense was
incurred.
7.
EMPLOYEE BENEFITS.
(a)
During the Employment Term and any severance period hereunder, Employee shall be
entitled to participate in such group term insurance, disability insurance,
health and medical insurance benefits and 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 to the extent former
employees are eligible to participate in such arrangements pursuant to the terms
of the arrangement, any insurance policy associated therewith and applicable
law, and, further, shall 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. In addition, notwithstanding anything to the contrary in any
stock option agreement or restricted stock agreement between Employee and the
Company outstanding as of the date hereof, all stock options and restricted
stock awards 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 is on a leave of absence approved by the
Compensation Committee of the Board or continues to serve as an officer or
director of, or a consultant or advisor to the Company; provided, however, in
the event that the continued vesting of Employee’s outstanding equity awards as
provided above would violate or be prohibited by any federal, state or local
law, regulation, or rule applicable to Employee and the continued vesting of
Employee’s equity awards, the Compensation Committee of the Board will instead
accelerate the vesting of any stock options and restricted stock awards
outstanding as of the date hereof and such stock options and restricted stock
awards will become 100% vested immediately prior to the date such continued
vesting would violate or be prohibited by any federal, state or local law,
regulation, or rule applicable to Employee and the continued vesting of
Employee’s equity awards.
(b)
Employee shall be entitled to vacation in accordance with the Company’s policies
as may be established from time to time by the Company for its executive staff,
which shall be taken at such time or times as shall be mutually agreed upon with
the Company.
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8. DEATH
AND DISABILITY.
(a) The
Employment Term shall terminate on the date of Employee’s death, in which event
the Company shall, within 30 days of the date of death, pay to his estate,
Employee’s Base Salary, any unpaid cash bonus awards, reimbursable expenses and
benefits owing to Employee through the date of Employee’s death together with a
lump-sum equal to two year’s Base Salary and Target Bonus. Except as otherwise
contemplated by this Agreement, 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 that Employee is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can by expected to
last for a continuous period of not less than 12 months. For purposes of
determining of Employee’s Disability the Board may rely on a determination by
the Social Security Administration that Employee is totally disabled or a
determination by the Company’s disability insurance carrier that Employee has
satisfied the above definition of Disability. In case of such termination,
Employee shall be entitled to receive his Base Salary, any unpaid bonus awards,
reimbursable expenses and benefits owing to Employee through the date of
termination within 30 days of the date of the Company’s determination of
Employee’s Disability. In addition, the Company shall pay to Employee an amount
equal to two year’s Base Salary and Target Bonus, payable in installments
through regular payroll over the two year period commencing on the date of the
Company’s determination of Employee’s Disability. Except as otherwise
contemplated by this Agreement, Employee will not be entitled to any other
compensation upon termination of his employment pursuant to this subparagraph
8(b).
(c) In no event will the Employee or
his estate have the discretion to determine the calendar year of
payment.
9.
TERMINATION OF EMPLOYMENT.
(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. The Employee shall have the right, upon delivery of
written notice to the Company, to terminate his employment hereunder prior to
the expiration of the Employment Term pursuant to a Good Reason Termination, or
otherwise, 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, or if the Employee terminates the Employee’s
employment pursuant to a Good Reason Termination, then the Company shall be
obligated to pay Employee, within 30 days of the date of Employee’s termination,
in a lump-sum, his Base Salary, any unpaid bonus awards, reimbursable expenses
and benefits owing to Employee through the day on which Employee is terminated,
together with a severance payment to the Employee in an amount equal to two
year’s Base Salary and Target Bonus. Employee shall also be entitled to benefits
pursuant to paragraph 7 hereof and the use of an office and administrative
assistant for a period of two years after the date of any Without Cause
Termination or Good Reason Termination. No other cash payments shall be made, or
benefits provided, by the Company under this Agreement in the event of a Without
Cause Termination or a Good Reason Termination; provided that all stock option
grants and/or restricted stock grants previously awarded to Employee shall
immediately vest in their entirety, regardless of the satisfaction of any
conditions contained therein, in the event of a Without Cause Termination or a
Good Reason Termination. Except as otherwise contemplated by this Agreement,
Employee’s estate will not be entitled to any other compensation upon
termination of this Agreement pursuant to this subparagraph 9(b).
Notwithstanding
anything in this Agreement to the contrary (including but not limited to the
provisions of Section 9 (b) or Section 10) if Executive is a “specified
employee,” as defined in Code Section 409A and the regulations thereunder, on
the date of the Employee’s employment is terminated, then amounts that
constitute nonqualified deferred compensation subject to Code Section 409A that
would otherwise have been paid during the six-month period immediately following
the date the Employee’s employment terminated shall be paid on the first
regular
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payroll
date immediately following the six-month anniversary of the date the Employee’s
employment terminates, with interest on each amount for the period of the delay
at the rate of yield on U.S. Treasury Bills with the earliest maturity date that
occurs at least six months after such date of termination of employment (as
reported in the Wall Street Journal) from the such date of employment
termination to the date of actual payment. Reimbursements or payments
directly to the service provider for health care expenses incurred during such
six month period, plus reimbursements and in kind benefits in an amount up to
the applicable dollar limit on elective deferrals to a 401(k) plan under Section
402(g)(1)(B) of the Code ($16,500 for 2009), and other amounts that do not
constitute nonqualified deferred compensation subject to Section 409A, shall not
be subject to this six month delay requirement.
(c) In
the event that the Company terminates the Employee’s employment hereunder due to
a Termination for Cause or the Employee voluntarily terminates employment with
the Company for any reason (other than a termination of employment by the
Employee pursuant to a Good Reason Termination), then the Employee shall not be
entitled to any severance, except that the Company shall be obligated to pay
Employee his Base Salary, any unpaid bonus awards, reimbursable expenses and
benefits owing to Employee through the day on which Employee is terminated in a
lump sum payment within 30 days after the date of Employee’s termination of
employment. Except as otherwise contemplated by this Agreement, Employee will
not be entitled to any other compensation upon termination of this Agreement
pursuant to this subparagraph 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 or willful failure of Employee to substantially
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 Board, which
demand identifies the manner in which the Board believes that Employee has not
substantially performed his duties hereunder; (b) conviction of, or entering a
plea of guilty or nolo
contendere to, a crime involving moral turpitude or dishonesty
or to any other crime that constitutes a felony; (c) Employee’s intentional
misconduct, gross negligence or material misrepresentation in the performance of
his duties 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.
(iii) the
term "Change in Control"
shall mean:
(A) The
acquisition by one person, or more than one person acting as a group, of
ownership of stock of the Company that, together with stock held by such person
or group, constitutes more than 50% of the total fair market value or total
voting power of the stock of the Company;
(B) The
acquisition by one person, or more than one person acting as a group, of
ownership of stock of the Company, that together with stock of the Company
acquired during the twelve-month period ending on the date of the most recent
acquisition by such person or group, constitutes 30% or more of the total voting
power of the stock of the Company;
(C) A
majority of the members of the Company’s board of directors is replaced during
any twelve-month period by directors whose appointment or election is not
endorsed by a majority of the members of the Company’s board of directors before
the date of the appointment or election;
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(D) One
person, or more than one person acting as a group, acquires (or has acquired
during the twelve-month period ending on the date of the most recent acquisition
by such person or group) assets from the Company that have a total gross fair
market value (determined without regard to any liabilities associated with such
assets) equal to or more than 40% of the total gross fair market value of all of
the assets of the Company immediately before such acquisition or
acquisitions.
Persons
will not be considered to be acting as a group solely because they purchase or
own stock of the same corporation at the same time, or as a result of the same
public offering. However, persons will be considered to be acting as
a group if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of stock, or similar business transaction
with the Company.
This
definition of Change in Control shall be interpreted in accordance with, and in
a manner that will bring the definition into compliance with, the regulations
under Section 409A of the Internal Revenue Code.
(iv) the
term "Good Reason Termination" shall mean a termination by the Employee of
employment following (A) a material diminution in the Employee’s Base Salary;
(B) a material diminution in the Employee’s authority, duties, or
responsibilities, including but not limited to a requirement that the Employee
report to a corporate officer or employee instead of reporting directly to the
Board of Directors (excluding any change in duties initiated by Employee
pursuant to, or contemplated by, Section 3 (c) above), (C) a material change in
the geographic location at which the Employee must perform the services, or (D)
any other action or inaction that constitutes a material breach of the Agreement
by the Company; in each case where the determination is made in good faith by
Employee in Employee’s sole discretion, and the condition is not corrected /
remedied by the Company within 30 days after the Employee sends a notice to the
Company in writing specifying the reason why the Employee claims there is Good
Reason for termination of employment by the Employee, and the Employee sends the
notice within two years after first discovering the existence of the condition
that gives rise to a right to seek a Good Reason Termination. The determination
by Employee as to whether good reason exists shall be binding absent bad faith
or manifest error.
(v) the
terms “termination of employment,” or “terminate the Employee’s employment,” (or
“termination” or “terminate” when used in the context of Employee’s employment)
shall mean a termination of employment with the Company and its
affiliates. An affiliate is any corporation or other business entity
that is, along with the Company, a member of a controlled group of businesses,
as defined in Code Sections 414(b) and 414(c), provided that the language: “at
least 50 percent” shall be used instead of “at least 80 percent” each place it
appears in such definition. A corporation or other business entity is
an affiliate only while a member of such controlled group .
(e) In no event will the Employee have
the discretion to determine the calendar year of payment.
10.
CHANGE IN CONTROL - TERMINATION OF EMPLOYMENT AND COMPENSATION IN EVENT OF
TERMINATION.
(a) If
within a period of two (2) years following the occurrence of a Change in Control
(regardless of whether the same is within the Employment Term), the Employee’s
employment with the Company or any successor to the Company is terminated by the
Employee pursuant to a Good Reason Termination, or by the Company pursuant to a
Without Cause Termination, then the Employee shall be entitled to all the
benefits set forth in subparagraph 9(b) as if Employee was terminated and such
termination was a Without Cause Termination. For purposes of this Section 10
only, a termination of employment by reason of the Company’s decision not to
renew the term of the Agreement shall constitute and be treated as a Without
Cause Termination.
(b) In
the event that any part of any payment or benefit received (including, without
limitation, granting of and/or acceleration of vesting of stock options and
restricted stock) pursuant to the terms of paragraph 10(a) (the “Change in
Control Payments) would be subject to the Excise Tax determined as provided
below, the Company shall pay to the Employee, at the time specified in
subparagraph 10(c) below, an additional amount (the “Gross-Up Payment”) such
that the net amount retained by the Employee, after deduction of the Excise Tax
on the
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Change in
Control Payments and any federal, state and local income tax and the Excise Tax
on the Gross-Up Payment, and any interest, penalties or additions to tax payable
by the Employee with respect thereto, shall be equal to the total present value
(using the applicable federal rate as defined in Section 1274(d) of the Code in
such calculation) of the Change in Control Payments at the time such Change in
Control Payments are to be made. For purposes of determining whether any of the
Change in Control Payments will be subject to the Excise Tax and the amounts of
such Excise Tax; (1) the total amount of the Change in Control Payments shall be
treated as “parachute payments” within the meaning of Section 280G(b)(2) of the
Code, and all “excess parachute payments” within the meaning of Section
280G(b)(1) of the Code shall be treated as subject to Excise Tax, except to the
extent that, in the opinion of independent counsel selected by the Company and
reasonably acceptable to the Employee (“Independent Counsel”), a Change in
Control Payment (in whole or in part) does not constitute a “parachute payment”
within the meaning of Section 280G(b)(2) of the Code, or such “excess parachute
payments” (in whole or in part) are not subject to the Excise Tax, (2) the
amount of the Change in Control Payments that shall be treated as subject to the
Excise Tax shall be equal to the lesser of (A) the total amount of the Change in
Control Payments or (B) the amount of “excess parachute payments” within the
meaning of Section 280G(b)(1) of the Code (after applying clause (1) hereof),
and (3) the value of any noncash benefits or any deferred payment or benefit
shall be determined by Independent Counsel in accordance with the principles of
Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount
of the Gross-Up Payment, the Employee shall be deemed to pay federal income
taxes at the highest marginal rates of federal income taxation applicable to
individuals in the calendar year in which the Gross-Up Payment is to be made and
state and local income taxes at the highest marginal rates of taxation
applicable to individuals as are in effect in the state and locality of the
Employee’s residence in the calendar year in which the Gross-Up Payment is to be
made, net of the maximum reduction in federal income taxes that can be obtained
from deduction of such state and local taxes, taking into account any
limitations applicable to individuals subject to federal income tax at the
highest marginal rates.
(c) The
Gross-Up Payments provided for in subparagraph 10(b) hereof shall be made upon
the earlier of (i) the payment to the Employee of any Change in Control Payment
or (ii) the imposition upon the Employee or payment by the Employee of any
Excise Tax.
(d) If it
is established pursuant to a final determination of a court or an Internal
Revenue Service proceeding or the opinion of the Independent Counsel that the
Excise Tax is less than the amount taken into account under subparagraph 10(b)
hereof, the Employee shall repay to the Company within thirty (30) days of the
Employee’s receipt of notice of such final determination or opinion the portion
of the Gross-Up Payment attributable to such reduction (plus the portion of the
Gross-Up Payment attributable to the Excise Tax and federal, state and local
income tax imposed on the Gross-Up Payment being repaid by the Employee if such
repayment results in a reduction in Excise Tax or a federal, state and local
income tax deduction) plus any interest received by the Employee on the amount
of such repayment. If it is established pursuant to a final determination of a
court or an Internal Revenue Service proceeding or the opinion of Independent
Counsel that the Excise Tax exceeds the amount taken into account hereunder
(including by reason of any payment the existence or amount of which cannot be
determined at the time of the Gross-Up Payment), the Company shall make an
additional Gross-Up Payment in respect of such excess within thirty (30) days of
the Company’s receipt of notice of such final determination or
opinion.
(e) In
the event of any change in, or further interpretation of, Sections 280G or 4999
of the Code and the regulations promulgated thereunder, the Employee shall be
entitled, by written notice to the Company, to request an opinion of Independent
Counsel regarding the application of such change or interpretation to any of the
foregoing, and the Company shall use its best efforts to cause such opinion to
be rendered as promptly as practicable. Any fees and expenses of Independent
Counsel incurred in connection with this Agreement shall be borne by the
Employee.
(f) In
the event that any part of any Change in Control Payments would be subject to
the Excise Tax determined as provided above, then the Employee may elect, in the
sole discretion of the Employee, to receive in-lieu of the amounts payable
pursuant to subparagraph 10(a) a lesser amount equal to $100 less than 3.00
times the Employee’s “Annualized Includable Compensation” (within the meaning of
Section 280G(d)(1) of the Code) (such amount the "Cut-Back Amount") by
eliminating the accelerated vesting to the extent necessary to reduce the
payments and benefits under subparagraph 10(a) to the Cut-Back Amount. Any
amounts paid as a result of an election by the Employee pursuant to this
paragraph 10(f) will be in full satisfaction of the amounts otherwise payable to
the Employee pursuant to subparagraph 10(a) hereof.
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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. The Company will provide
Employee with valuable confidential information belonging to the Company or its
subsidiaries or its affiliates above and beyond any confidential information
previously received by Employee and will associate Employee with the goodwill of
the Company or its subsidiaries or its affiliates above and beyond any prior
association of Employee with that goodwill. In return, Employee promises never
to disclose or misuse such confidential information and never to misuse such
goodwill. To enforce Employee’s promises in this regard, Employee agrees to
comply with the provisions of this paragraph 11.
(b)
Employee will not, during the Employment Term, 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 other business that is competitive with the business of
providing information technology software consulting services. 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 stockholder
under this subparagraph 11(b) or constitute a breach of this subparagraph
11(b).
(c) In
consideration of the amounts payable and benefits available pursuant to
subparagraphs 9(b) and 10(a), Employee will not, during the Employment Term
(including any leave of absence during which Employee’s outstanding equity
awards continue vesting as described in subparagraph 7(a)) and for a period of
60 months following the Employment Term, directly or indirectly, work in the
United States 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 is competitive with the
business of providing information technology software consulting services. 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 stockholder
under this subparagraph 11(c) or constitute a breach of this subparagraph
11(c).
(d)
Employee will not, during the Employment Term and for a period of 60 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 hire any person
employed by the Company or any of its subsidiaries, or (ii) call on, solicit, or
take away any person or entity who was a customer of the Company or any of its
subsidiaries or affiliates during Employee’s employment with the Company, in
either case for a business that is competitive with the business of providing
information technology software consulting services.
(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 under applicable law, the provisions shall be modified to the
extent required to make the provisions enforceable. 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.
12.
COMPANY PROPERTY.
(a) Any
patents, inventions, discoveries, applications or processes designed, devised,
planned, applied, created, discovered or invented by Employee during the
Employment Term, regardless of when reduced to writing or practice, 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.
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(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.
14.
CONSENT TO TEXAS JURISDICTION AND VENUE. The Employee hereby consents and agrees
that state courts located in Xxxxxx 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 1120 South Capital of Xxxxx Xxxxxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxx, Xxxxx
00000, Attention: President (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 paragraph 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; SURVIVAL OF
TERMS. This Agreement may be executed in two counterpart copies, each of which
may be
8
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 supersedes all prior representations, agreements
and understandings, oral or otherwise, between the parties with respect to the
matters contained herein. In the event of any conflict between this Agreement
and any Award Agreement, this Agreement shall control. Paragraphs 7(a) and 9
through 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.
IN
WITNESS WHEREOF, the parties have executed this Employment Agreement as of the
date first above written.
|
PERFICIENT,
INC.
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
||
|
Title:
|
Director,
Chairman of the Compensation Committee
|
||
|
/s/
Xxxx X. XxXxxxxx
|
|||
|
Xxxx
X. XxXxxxxx,
Individually
|
|||
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