EXHIBIT 10.39
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT DATED SEPTEMBER __, 1998,
BETWEEN ZAMBA CORPORATION (F/K/A RACOTEK, INC.), AND
TODD FITZWATER
THIS AMENDMENT ("Amendment") is between Zamba Corporation ("Zamba"), and Todd
Fitzwater ("Fitzwater"). It modifies the Employment Agreement ("Agreement")
between ZCA and Fitzwater. This Amendment shall be effective as of the date last
executed by all parties below.
WHEREAS, Fitzwater desires to voluntary resign his employment under the
Agreement, and Zamba desires to accept Fitzwater's resignation; and
WHEREAS, Zamba and Fitzwater have also entered into that certain Noncompetition
Agreement dated September __, 1998 (the "Noncompetition Agreement"), and that
certain Lock-Up Agreement dated September 18, 1998, (the "Lock-Up Agreement");
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, as set forth below, the parties agree as follows:
1. Section 4 of the Agreement shall be amended by adding, at the end of the
Section, the following:
"By written agreement under Amendment No. 1, dated November __, 2000, your
employment with the Company shall cease as of November 3, 2000."
2. The payments set forth in Section 5 of the Agreement shall continue at your
current base salary until ceasing as of the earlier of January 31, 2001, or the
first date upon which you obtain subsequent employment. On November 15, 2000,
Zamba shall pay Fitzwater all of his unused personal time off that has accrued
as of November 3, 2000. No personal time off shall accrue after November 3,
2000.
3. Through the earlier of January 31, 2001, or Fitzwater's first date of
subsequent employment, Zamba will continue to pay the premiums for Fitzwater's
benefits as such are currently being paid by, subject to prior receipt from
Fitzwater of the same contributions that Fitzwater currently makes through
salary withholding. After January 31, 2001, Fitzwater will be eligible to
continue certain of his benefits at his own expense as provided under the
Continuing Omnibus Budget Reconciliation Act ("COBRA") in accordance with the
COBRA notice he will promptly receive following November 3, 2000.
4. For purposes of the "Noncompetition Period" described in Section 19(g) of the
Noncompetition Agreement, November 3, 2000, shall be deemed to be the date that
Fitzwater's employment with Zamba terminated.
5. Fitzwater agrees that the consideration provided to him by Zamba in this
Amendment is good and valuable consideration that he would not be entitled to
but for this Amendment. Fitzwater acknowledges and agrees that he is not
entitled to any remuneration from Zamba, except as provided in this Amendment,
that the payments and other benefits contained in this Amendment are good and
valuable consideration to which he would not be entitled in the absence of this
Amendment, and that he will not seek any further compensation from Zamba, or the
current or former officers, directors, shareholders, employees, attorneys,
successors and assigns of either Zamba for any claimed damages, expenses, costs,
fees or other liability of any kind in connection with the Agreement, his
employment with Zamba or his separation of employment.
6. It is the intent of the parties that the terms upon which this Amendment is
based will be forever treated as confidential, unless disclosure is required for
legal or regulatory reasons, in the good faith opinion of counsel for either
party. Provided that Fitzwater informs the following recipients of the
confidentiality obligations hereunder and the recipients agree to abide by those
obligations, Fitzwater may disclose the terms of this Amendment only to his
spouse, attorney, accountant, and tax advisor or preparer. Zamba may disclose
the terms of this Amendment to those of its agents or employees who have a
legitimate need to know such terms. Both parties agree not to make any
disparaging or negative statements about the other party. Further, Fitzwater
agrees not to make any disparaging or negative remarks about Zamba's employees
or his employment relationship with Zamba, either in the employment or personal
context. Neither party shall in any way assist or encourage any individual to
pursue a claim against the other party. Both parties acknowledge and agree that
neither the Noncompetition Agreement nor the Lock-Up Agreement is confidential
and that such agreements may be disclosed publicly.
7. Each party to this Amendment represents and acknowledges that in executing
this Amendment that party does not rely and has not relied upon any
representation or statement made by the other party or by any of such other
party's agents, attorneys, or representatives with regard to the subject matter,
basis or effect of this Amendment or otherwise, other than those representations
and statements specifically stated in this written Amendment. Each party
represents and acknowledges that it has had read and understands this Amendment.
Each party further represents and acknowledges that it has had sufficient time
to review this Amendment with the advisors, including legal and financial
counsel, of its choice, or has voluntarily chosen not to review this Amendment
with its advisors.
8. Should any provision of this Amendment be declared or be determined by any
court of competent jurisdiction to be illegal, invalid, or unenforceable, the
legality, validity, and enforceability of the remaining parts, terms, or
provisions shall not be affected thereby, and said illegal, unenforceable, or
invalid part, term, or provision shall be deemed not to be a part of this
Amendment.
9. This Amendment shall be interpreted in accordance with the plain meaning
of its terms and not strictly for or against any of the parties.
10. All remaining terms and conditions of the Agreement, the Noncompetition
Agreement, and the Lock-Up Agreement shall continue in full force and effect,
without modification or amendment. Except as expressly stated herein, the
Agreement, the Noncompetition Agreement, and the Lock-Up Agreement have not been
modified. Any future modifications or amendments must be in writing and signed
by Fitzwater and an authorized representative of Zamba.
IN WITNESS WHEREOF, the parties consent to this Amendment by their signatures
below.
TODD FITZWATER ZAMBA CORPORATION
/S/ TODD FITZWATER BY: /S/ PAUL EDELHERTZ
TODD FITZWATER PAUL EDELHERTZ
CHAIRMAN OF THE BOARD
DATE: 11/9/00 DATE: 11/15/00
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