Exhibit 10.8
EMPLOYMENT
AGREEMENT
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 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 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.
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.
(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
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 intentio
