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EXHIBIT 10.5
TRANSITIONAL SUPPORT SERVICES AGREEMENT
This Transitional Support Services Agreement (this "Agreement") is made
and entered into on August 14, 2000, but is effective as of July 1, 2000 (the
"Effective Date"), by and between SCB Computer Technology, Inc., a Tennessee
corporation (the "Company"), and Xxxx X. XxXxxxxx, a resident of Tennessee
("XxXxxxxx").
Introduction. XxXxxxxx is a former employee of the Company who
voluntarily resigned effective as of June 30, 2000. While with the Company, Xx.
XxXxxxxx held the executive offices of Senior Vice President - Finance and
Administration from November 16, 1996, to July 31, 1997; Chief Financial Officer
from August 1, 1997, to November 30, 1999; and President - Enterprise Solutions
Division from December 1, 1999, to June 30, 2000. The parties desire and have
agreed that XxXxxxxx will provide certain transitional support services to the
Company for a six-month period ending on December 31, 2000, to help ensure a
smooth transition following his departure. In consideration of the mutual
agreements, covenants and promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Appointment and Term. The Company hereby engages XxXxxxxx to perform
certain transitional support services for the Company, and XxXxxxxx hereby
accepts such engagement with the Company, beginning on the Effective Date and
continuing for a period of six months until December 31, 2000 (the "Expiration
Date"), unless earlier terminated as provided herein.
2. Duties and Responsibilities. XxXxxxxx shall perform such transitional
support services relating to the accounting, financial, operational and other
functions of the Company's business and affairs as the Company may request from
time to time. XxXxxxxx shall perform the services on such dates, at such times,
and in such locations as the Company may reasonably request; provided, however,
that XxXxxxxx shall have no obligation to occupy an office or keep hours at the
Company's place of business on a regular basis. XxXxxxxx shall devote such time
as is reasonably necessary to perform the services in a timely manner. XxXxxxxx
shall report directly to the Chief Executive Officer and the Chief Financial
Officer of the Company. Upon request by the Chief Executive Officer or the Chief
Financial Officer, XxXxxxxx shall provide any person associated with the Company
with briefings, reports, updates, and all other information relating to the
transitional support services performed by XxXxxxxx for the Company.
3. Compensation. In full consideration for the services performed by
XxXxxxxx under this Agreement, the Company shall pay to XxXxxxxx a fee of
$24,810.58 per month during the term of this Agreement. The Company shall pay
the monthly fee in arrears in two equal installments of $12,405.29 on the 15th
and last days of each month. The Company also shall promptly reimburse XxXxxxxx
for all reasonable and necessary costs that he incurs in performing the services
under this Agreement, provided that such costs are documented by receipts or
other appropriate evidence relating thereto. If XxXxxxxx dies before the
Expiration Date, the Company shall pay the remaining fees that XxXxxxxx would
have earned through the Expiration Date, when and as they become due, to
XxXxxxxx'x estate.
4. Independent Contractor. The relationship between the Company and
XxXxxxxx created by this Agreement is an independent contractor relationship.
Subject to the terms and conditions of this Agreement, XxXxxxxx shall exercise
the sole and exclusive right to control the means and manner of performing the
services under this Agreement.
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5. Termination. This Agreement may be terminated prior to the expiration
of its term only as follows:
a. by the mutual written agreement of the parties, in which case the
termination is effective on the date set forth in such agreement;
b. by the Company, if XxXxxxxx (1) fails to perform any of his
obligations under this Agreement and (2) does not remedy such failure of
performance within 10 days after receiving a written notice thereof from the
Company, in which case the termination is effective at the end of such 10-day
period;
c. by the Company, if XxXxxxxx (1) has a final civil judgment rendered
against him for, or is convicted of or pleads guilty or nolo contendere to, the
commission of fraud, or (2) is convicted after all appeals of, or pleads guilty
or nolo contendere to, the commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or receiving
stolen property, in which case the termination is effective upon the entry of
such judgment, conviction or plea; or
d. by XxXxxxxx, if the Company (1) fails to perform any of its
obligations under this Agreement and (2) does not remedy such failure of
performance within 10 days after receiving a written notice thereof from
XxXxxxxx, in which case the termination is effective at the end of such 10-day
period.
In the event of the termination of this Agreement for any of the
foregoing reasons, the Company shall be obligated to compensate XxXxxxxx
pursuant to Section 3 through and including the effective date of termination.
6. Non-Disclosure and Non-Use of Confidential Information. Without the
prior written consent of the Company, XxXxxxxx shall not, directly or
indirectly, at any time after the Effective Date (a) reveal, divulge or
otherwise disclose any Confidential Information (as defined herein) to any
person or entity or (b) use or make use of any Confidential Information in
connection with any activity. Notwithstanding the foregoing, XxXxxxxx shall not
be restricted from disclosing Confidential Information that is required to be
disclosed by applicable law or legal process; provided, however, that if
disclosure of any Confidential Information is so required, XxXxxxxx shall
provide the Company with prompt written notice of such requirement to enable the
Company to seek an appropriate protective order before any such required
disclosure is made by XxXxxxxx. The parties acknowledge and agree that this
Section 6 is not intended to, and does not, alter either the Company's rights or
XxXxxxxx'x obligations under any applicable law regarding trade secrets and
unfair trade practices. XxXxxxxx'x obligations under this Section 6 shall not be
affected by, and shall survive, the expiration or earlier termination of this
Agreement.
As used in this Agreement, the term "Confidential Information" means any
confidential or proprietary information possessed by the Company or any of its
subsidiaries or other affiliates, including, without limitation, any non-public,
confidential Company compilations of supplier lists, details of supplier
contracts, customer lists, details of customer contracts, current or anticipated
customer requirements, pricing policies, price lists, market studies, business
plans, operational methods, marketing plans or strategies, product or service
development techniques or plans, computer software programs (including object
code and source code), data and documentation, database technologies, systems,
structures and architectures, inventions and ideas, past, current and planned
research and development, designs, compilations, devices, methods, techniques,
processes, financial information, business acquisition plans or strategies, new
personnel acquisition
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plans or strategies, and any other information that would constitute a trade
secret under the statutory law or common law of the State of Tennessee.
The provisions of this Section 6 shall not restrict XxXxxxxx from using
the skills, expertise, and personal relationships developed during his
employment with the Company to find and engage in future employment, and are not
to be construed as imposing a "non-compete" requirement on XxXxxxxx.
7. Miscellaneous Provisions
a. Entire Agreement. This Agreement constitutes the entire
understanding between the Company and XxXxxxxx and is a complete and exclusive
statement of the terms and conditions of their agreement relating to the subject
matter hereof and supersedes any and all prior negotiations, understandings,
agreements and arrangements, whether written or oral, and whether express or
implied, between the Company and XxXxxxxx with respect to the subject matter
hereof, all of which prior negotiations, understandings, agreements and
arrangements are hereby rendered null, void and of no further force or effect.
b. Notices and Other Communications. All notices and other
communications provided for in this Agreement shall be made in writing, shall be
addressed to the receiving party as set forth below, and shall be delivered
either (a) in person, in which case such notice or other communication shall be
deemed delivered upon its actual receipt, (b) by FedEx, UPS or any other
nationally recognized express delivery service, in which case such notice or
other communication shall be deemed delivered upon its actual receipt, or (c) by
the United States mail, return receipt requested, in which case such notice
shall be deemed delivered three (3) days after the same is deposited in a postal
box under the exclusive control of the United States Postal Service. For the
purposes hereof, the addresses of the parties are as follows:
Company: SCB Computer Technology, Inc.
0000 Xxxxxx Xxxx-Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
XxXxxxxx: Xxxx X. XxXxxxxx
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Any party may change its address for the purposes hereof by notifying the other
party of such change in the manner provided for herein.
c. Amendment. This Agreement may be altered, amended, modified or
changed (other than any waiver which shall be effective only if made in
accordance with Section 7.d) only by a written agreement executed by the Company
and XxXxxxxx.
d. Waiver. No provision of this Agreement may be waived by any party
hereto unless such waiver is set forth in a written agreement executed by the
waiving party. The waiver of any breach of any provision of this Agreement shall
not be deemed to constitute a waiver of any other breach of the same or any
other provision of this Agreement.
e. Modification and Severability. If a court of competent
jurisdiction declares that any provision of this Agreement is illegal, invalid
or unenforceable, such provision shall be modified automatically to the extent
necessary to make such provision fully legal, valid or enforceable. If
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such court does not modify any such provision as contemplated herein, but
instead declares it to be wholly illegal, invalid or unenforceable, such
provision shall be severed from this Agreement, this Agreement and the rights
and obligations of the parties hereto shall be construed as if this Agreement
did not contain such severed provision, and this Agreement otherwise shall
remain in full force and effect.
f. Enforceability. This Agreement shall inure to the benefit of, and
shall be enforceable by and against, XxXxxxxx and his legal representatives,
executors, administrators, distributees, legatees, heirs and permitted assigns
and the Company and its successors and assigns.
g. Breach of Covenant. If XxXxxxxx breaches or threatens to breach
any provision of this Agreement, the Company shall have the right and remedy to
enjoin, preliminarily and permanently, XxXxxxxx from breaching or threatening to
breach such provision and to have such provision specifically enforced by any
court of competent jurisdiction, it being understood and agreed by XxXxxxxx that
any such breach or threatened breach would cause irreparable injury to the
Company and that monetary damages would not provide an adequate remedy to the
Company. The rights and remedies referred to in this Section 7.g shall be
independent of each other, shall be severally enforceable, and shall be in
addition to (and not in lieu of) any and all other rights and remedies available
to the Company at law or in equity.
h. Governing Law. This Agreement shall be governed by, construed
under, and enforced in accordance with the laws of the State of Tennessee
without regard to the conflicts-of-laws provisions thereof.
i. Multiple Counterparts. This Agreement may be executed by the
parties hereto in multiple counterparts, each of which shall constitute an
original, and all of which together shall constitute one and the same Agreement.
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This Agreement is executed and delivered by the parties hereto on and as
of the dates first set forth above.
SCB COMPUTER TECHNOLOGY, INC.
By: /s/ T. Xxxxx Xxxx
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T. Xxxxx Xxxx
Chief Executive Officer
/s/ Xxxx X. XxXxxxxx
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Xxxx X. XxXxxxxx
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