Exhibit 10.33




 




April 16, 2008




 




Robert McCarthy






2790 Marsh Wren Circle






Longwood, FL, 32779






Sent via email: mccarthy.rf@gmail.com




 




Dear Bob:




 




Consonus Technologies, Inc. (the “Company”)
is pleased to extend the following offer of employment to you.  We are extremely excited by the prospect of
you joining our team.  We believe the
combination of your experience and demonstrated track record will allow you to
have a significant impact on the future success of our Company.




 




	
  Job Title:

  	
   

  	
  Executive
  Vice President, Sales & Marketing

  
	
  Location:

  	
   

  	
  Cary,
  North Carolina

  
	
  Reporting To:

  	
   

  	
  Mike
  Shook, CEO

  
	
  Total Base Salary:

  	
   

  	
  $200,000.00USD/per
  annum

  
	
  Contingent Start Date:

  	
   

  	
  May 19,
  2008

  





 




General Responsibilities:  You will have
as your general responsibility, the tasks of (1) improving the performance
of the Company’s sales force through increased productivity and reduced per
unit and total costs of sales and (2) enhancing and accelerating the
Company’s efforts toward building its recurring revenue lines of business such
as managed services, hosting and bandwith, maintenance manager, etc. You will
be expected to work closely with the Board of Directors (the “Board”) including
periodic reports to the Board and sub committees of the Board.




 




Annual Bonus Opportunities:  In addition to your base
salary, you will have the opportunity to earn an annual bonus through your
achievements and contributions to the success of the company, and through the
overall financial success of the Company.




 




·                  Your annual
Target Incentive Award will be a bonus potential of up to $157,000.00 (2008
based on 3 Quantitative Targets and 2 Qualitative Targets, paid pro-rata from
hire date). Each of the quantitative and qualitative goals will be weighted
equally. The objectives for the remainder of 2008 are as follows:




 




Quantitative




 




1.               Achieve July 1 to December 31, 2008 CTI
P&L gross margin goal per CTI Plan (goal 18.996M)






2.               Meet July 1 to December 31, 2008 cost of
sales goal as a percentage of billing margin (goal 20.2% with dedicated MS
sales reps) including submitting a plan in the first 75 days to accomplish
such, with an initial draft of such plan ready for review within 60 days






3.               Meet July 1 to December 31, 2008 Managed
Services P&L revenue goal of 2.7M




 




Qualitative




 




1.               Provide an in-depth assessment of current
sales force performance, including individual evaluation of managers and sales
team members. Assess alignment of corporate vision and individual sales team
contributions. With this data develop sales force structure, total costs of
sales, coverage model, go to market strategy, and execution plan. Timeline –
First 75 days, with an initial draft ready for review within 60 days.




 

















 




2.               Execution of sales plan as approved by the Board.
Timeline – Balance of calendar 2008




 




·                  Your annual
Exceeding Targets Incentive Award will be a bonus potential of up to $73,000
based on exceeding the annual quantitative targets by at least 110%.




 




Stock Award Upon Hiring:  The Company will award you 44,620 restricted
shares of the Company, which represents approximately 1.25% of the fully
diluted shares of the Company. The restrictions on such stock are both
performance based and retention based. The stock will vest equally over 3
years.




 




100% of stock will vest if change in control (which change of control
includes diminution of KLI role on the Board) takes place and it materially
diminishes or eliminates your existing role.




 




If you are terminated by the Company without Cause, 100% stock will
vest.




 




You may also earn, at the discretion of the Board, additional stock
option grants in the future in recognition of your proven performance and
potential for additional responsibilities.




 




Employee Benefits:  As a full time exempt employee of the Company
you will be eligible to participate in an excellent group of employee benefits
programs, including: 401K, health, dental and wellness plans.




 




Vacation: The Company will provide you the following weeks
of vacation:




 




·                  2008 – 2 weeks
(1 week July)






·                  2009 – Beyond -
4 weeks




 




Severance without Cause or change in control which
effects existing role: If your employment
is terminated during the first 24 months of employment for any reason other
than Cause, the Company will
provide you with a one time severance payment equivalent to six (6) months
of your base salary.




 




Moving Allowance:  The
Company will provide you with a moving allowance not to exceed $70,000.00
gross. If you leave the Company within the first 18 months for any reason other
than termination by the Company without Cause, the moving allowance will be
charged back to you. Temporary living arrangements should not exceed 4 months.




 




Temporary Living: Temporary living arrangements are not
included in the moving allowance and will not exceed (4) months.




 




Car Allowance: $600.00 per month




 




This offer is contingent on
executing the attached Employment Agreement and Restricted Stock Agreement. It
is also contingent upon a successful pre-employment background check and drug
screen.   The term “Cause”, as used
herein, shall have the meaning set forth in Section 6.1 of the Employment
Agreement.




 

















 




Bob, we are all very excited about the prospect of you joining our team
at Consonus Technologies and believe you will play an important role in our
success.  To indicate your acceptance of
Consonus Technologies’ offer and all of its terms, please sign and date this
letter, and fax it to me at 919-379-8390 at your earliest
convenience.  Should you have any
questions please feel free to contact me at 919 379 8400.




 




Sincerely,




 




Mike Shook






CEO






Consonus Technologies




 


 




	
  Accepted:

  	
   

  	
   

  	
  Date:

  	
   

  
	
   

  	
  Robert McCarthy

  	
   

  	
   

  





 






 












10.33






 






EMPLOYMENT AGREEMENT 




 




This EMPLOYMENT AGREEMENT is made and entered into as of
May 12, 2008 by and between CONSONUS TECHNOLOGIES, INC., a Delaware corporation
(the “Company”), and ROBERT McCARTHY, an individual resident of the
State of Florida (the “Employee”).




 




WITNESSETH:




 




WHEREAS, the Company desires to employ the Employee as
Executive Vice President, Sales and Marketing, and to enter into this Agreement
with the Employee embodying the terms of such employment; and




 




WHEREAS, the Employee desires to accept such
employment with the Company and to enter into this Agreement.




 




NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:




 




1.                                      Definitions.




 




“Agreement” shall mean this Employment
Agreement and any appendices, exhibits or schedules affixed hereto.




 




“Agreement Date” shall mean the date first
above written.




 




“Cause” shall have the meaning set forth in
Subsection 6.1 of this Agreement.




 




“Company” shall have the meaning set forth in
the first paragraph of this Agreement, and will include all subsidiaries and
affiliates of the Company.




 




“Company Property” shall have the meaning set
forth in Subsection 6.5 of this Agreement.




 




“Confidential Information” shall have the
meaning set forth in Subsection 7.2 of this Agreement.




 




 “Covered
Customer” shall have the meaning set forth in Subsection 7.1 of this
Agreement.




 




“Covered Services” shall have the meaning set
forth in Subsection 7.1 of this Agreement.




 




“Covered Territory”
shall have the meaning set forth in Subsection 7.1 of this Agreement.




 

















 




“Employee” shall have the meaning set forth in
the first paragraph of this Agreement.




 




“Invention or Discovery” shall mean any new
process, machine, apparatus, manufacture, or composition of matter, or any new
use therefore or improvement thereon, any new design or configuration of any
kind or work of authorship of any kind, including, without limitation,
compilations and derivative works, whether or not patentable or copyrightable.




 




Wherever from the
context it appears appropriate, each term stated in either the singular or
plural shall include the singular and the plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, the feminine
and the neuter.




 




2.                                       Employment. Subject to and upon the terms and conditions herein
provided, the Company hereby agrees to employ the Employee and the Employee
hereby agrees to be employed by the Company for the term of this Agreement,
which term shall begin as of the Agreement Date and shall terminate as provided
in Section 6.




 




3.                                       Position and Responsibilities. During the term hereof the Employee
shall be employed as Executive Vice President, Sales and Marketing, of the
Company. In such capacity, the Employee shall, in the sole discretion of the
Company, report to the Chief Executive Officer. 
In accordance with such position, Employee is hereby granted
responsibilities, duties and authority that are appropriate to Employee’s
position and otherwise assigned to Employee by the Chief Executive Officer or
Board of Directors of the Company. While so employed, the Employee agrees to
devote his best efforts, skills and abilities to further the interests of the
Company. Employee further agrees to obtain prior written consent from Company
before engaging in any outside business activities, such as consulting, during
the Term of Employment, that involves a vendor, customer, or competitor of
Company.




 




4.                                       Compensation. For services rendered hereunder, the
Company shall compensate Employee as set forth in that certain offer letter to
Employee from Company dated
                  ,
2008, a copy of which is attached hereto as Exhibit A.  Such compensation shall be payable in
accordance with the Company’s normal payroll practices.




 




5.                                     Employee Benefits; Reimbursement of
Expenses.




 




5.1                                 Company Plans. The Employee shall be entitled to
participate in all the Company’s health, accident, retirement, disability and
other benefit plans, programs or practices from time to time in effect for
similarly situated employees of the Company.




 




5.2                                 Expenses. The Company shall promptly reimburse the Employee
for all reasonable and documented expenses incurred in connection with the
performance of his duties hereunder; provided, however, that the
Company may from time to time, require that expenses in excess of a given
amount shall be approved by an authorized officer of Company, prior to the
Employee incurring any such expenditure.




 


2

















 




6.                                       Termination. This Agreement shall terminate upon the
occurrence of any one of the following events:




 




6.1                                 With Cause. The Company may terminate this Agreement, at any
time for Cause. The term “Cause” as used herein, shall mean (a) the
Employee, in carrying out his duties hereunder, has been guilty of gross
negligence or willful and wanton misconduct which in either case results in
material harm to the financial condition, business, assets, or prospects of the
Company; (b) the conviction of , or entering of plea of no contest by, the
Employee for (1) fraud, misappropriation, or embezzlement relating to the
Company, (ii) any felony, or (iii) any other offense that results in
an active sentence of at least thirty (30) days imprisonment; (c) any
material breach of this Agreement by the Employee which breach shall not have
been cured within thirty (30) days after receipt by the Employee of written notice
from the Company specifying in reasonable detail the nature of the breach; (d) the
loss, suspension or material impairment of any license, certification,
registration or other professional credential (“License”) held by
Employee, if Company deems such License necessary for Employee to remain
qualified to perform his responsibilities hereunder; or (e) willful
failure to substantially perform his duties hereunder, which failure cannot be
cured or shall not have been cured within thirty (30) days after receipt by the
Employee of written notice from the Company specifying in reasonable detail the
failure to perform such duties.




 




6.2                                 Without Cause. Employee’s employment hereunder shall
be an employment at will. Accordingly, either the Company or Employee may
terminate this Agreement and Employee’s employment hereunder, at any time, for
any or no reason, with or without Cause.




 




6.3                                 Death; Disability. This Agreement shall terminate
immediately upon the death of Employee or if Employee is unable to perform the essential
functions of his job, with or without a reasonable accommodation, for a period
of greater than ninety (90) days (“Disability”).




 




6.4                                 Certain Payments Upon Termination.




 




(a)                                  Generally.  Upon
termination of this Agreement and Employee’s employment hereunder, for whatever
reason, the Company shall pay the Employee or his beneficiary such salary as he
may be entitled to receive for services rendered prior to the date of such
termination.




 




(b)                                 With Cause; Upon Death, Disability or
Resignation.  If Employee is terminated by the Company for
Cause, or if Employee’s employment ends due to Employee’s death or Disability,
or if Employee resigns, the Company shall not be liable for any other payments
to the Employee.




 




(c)                                  Without Cause. 
If Employee is terminated by the Company without Cause prior to the
two-year anniversary of the Agreement Date, the Company shall pay to Employee
an amount equal to six months of Employee’s base compensation; provided,
however, that during the period beginning on the one-year anniversary of this 




 


3

















 




Agreement and ending on the two-year anniversary of
this Agreement, for purposes of this Section 6.4(c) only, the term
“Cause” shall include the failure of Employee to achieve at least an average of
75% of the quantitative and qualitative goals assigned to him.  Termination for failure to achieve the
above-referenced quantitative and qualitative goals assigned to Employee shall
be termination without Cause for purposes of determining the vesting of
restricted stock under the Restricted Stock Agreement between Employee and the
Company of even date herewith.   If
Employee is terminated by the Company without Cause after the two-year
anniversary date, the Company shall give Employee at least thirty (30) days’
prior written notice of such termination or, at the Company’s election, the
Company will pay to Employee an amount equal to Employee’s regular base salary
in lieu of all or a part of such notice. 
In addition to the foregoing, if Employee is terminated without Cause,
he shall be entitled to his incentive compensation based on the goals provided
to him for such year, as and to the extent earned by him, measured and paid on
a pro rata basis for the applicable portion of the year that Employee was
employed.




 




6.5                                 Return of Company Property. Upon termination of Employee’s
employment with Company for any reason, Employee shall leave with or return to
Company all personal property belonging to Company (“Company Property”)
that is in Employee’s possession or control as of the date of such termination
of employment, including, without limitation, all records, papers, drawings,
notebooks, specifications, marketing materials, software, reports, proposals,
equipment, or any other device, document or possession, however obtained,
whether or not such Company Property contains Confidential Information.




 




7.                                       Restrictive Covenants.




 




7.1                                 Noncompetition. 
Upon the termination of Employee’s employment by the Company with Cause,
or through Employee’s resignation, Employee hereby covenants and agrees that
for a period of one (1) year after such termination, Employee shall not,
on his own behalf or for others, directly or indirectly, provide the Covered
Services (as herein defined) in competition with Company (whether as a
proprietor, partner with another, shareholder, agent or consultant of, employee
of or lender to, another) to any Covered Customer (as herein defined) in the
Covered Territory (as herein defined). 
For purposes of this Agreement, the “Covered Services” shall mean
providing services, directly or in directly, as an employee, consultant, owner,
manager, agent, director or other similar capacity, in the area of managed data
center services; “Covered Customer” shall mean any client or customer of
Company or any prospective client or customer of Company with whom Employee has
had any business contacts on behalf of Company within the last twelve (12)
months of Employee’s employment with Company; and the “Covered Territory”
shall mean: within a fifty (50) mile radius of any of the Company’s office
locations from which the Company sells goods or services during the term of
this Agreement.  Employee further agrees
that for a period of one (1) year following his termination of employment
with Company, he will provide written notice to Company of the name and address
of any other employer with whom Employee accepts employment at least 24 hours
prior to commencement of such employment.




 


4

















 




7.2                                 Nondisclosure. The Employee agrees that he will not at
any time disclose to any person, partnership or other entity who or which is,
or reasonably may be expected to be, in competition with the Company in the
computer software integration business, any confidential information or trade
secrets of the Company (“Confidential Information”) or use such
Confidential Information for his own benefit, unless such disclosure or use is
with the prior express written consent of the Company. For purposes of this
Agreement, “Confidential Information” shall mean any scientific, technical,
merchandising, production, management, or financial information, any design,
process, procedure, any formula, pattern, improvement, device, idea, concept,
information or compilation of information, including but not limited to
employee lists, customer or client lists, lists of prospective clients or other
contracting parties with the Company, sales plans, marketing surveys and plans,
business plans and opportunities, business records, any Invention or Discovery during
the Term of Employment (whether discovered, made, conceived or developed by
Employee alone or in conjunction with others, whether or not during working
hours, whether or not on the Company’s premises and whether or not with the use
of Company’s facilities, equipment, materials, personnel or funds) and
proprietary information of customers and clients of the Company. The foregoing
shall not prevent the Employee from responding to the request of a governmental
agency or pursuant to court order or as otherwise required by law and shall not
apply to any Confidential Information that (i) has been voluntarily
disclosed by Company (or by a third party with the lawful right to make such
disclosure) to the Public, (ii) is in Employee’s possession prior to disclosure
to Employee by Company, or (iii) has otherwise legally entered the public
domain.




 




7.3                                 Nonsolicitation. Employee agrees that during his
employment and for a period of one (1) year thereafter, he will not
contact, solicit, interfere with or attempt to entice in any form, fashion or
manner (a) any other employee of Company for the purpose of inducing such
employee to terminate his employment with Company or to act in any way that
would or could be detrimental to the best interests of the Company, or (b) any
Covered Customer for the purpose of inducing such Covered Customer to use any
services or products in competition with those offered by the Company.




 




Notwithstanding
the termination or expiration of this Agreement for any reason whatsoever, the
Employee’s obligations under this Section 7 shall survive and remain in
full force and effect in accordance with their terms; provided, however that,
with respect to Section 7.1, such provision does not survive unless
Employee’s termination is for Cause or due to Employee’s resignation.




 




8.                                       Injunctive Relief. The Employee acknowledges and agrees
that the Company would suffer irreparable injury in the event of breach or
threatened breach of any of the provisions of Section 7 above and,
accordingly, that the Company shall be entitled to an injunction restraining
the Employee from any breach or threatened breach thereof. Nothing herein shall
be construed, however, as prohibiting the Company from pursuing other remedies
at law or in equity which it may have for any breach or threatened breach
hereof by the Employee, including the recovery of damages from the Employee.




 




9.                                      Freedom to Contract. Subject to the fact that Employee has
an agreement not to compete in the voice over internet protocol, or VoIP,
sector for not more than one year from the date of this Agreement, the Employee
represents, warrants and covenants that he has the right 




 


5

















 




and power to enter
into this Agreement and to perform his obligations hereunder, that he neither
has made nor will he make any contractual or other commitments that would
conflict with the performance of his obligations hereunder and that the
Employee will neither do acts or enter into any commitments in derogation of
his obligations hereunder.




 




10.                                Amendment. This Agreement contains the entire agreement of the
parties with respect to the matters set forth of the parties herein, and may
only be amended by subsequent written agreement of the parties hereto. All
prior agreements between the Employee and the Company, whether in writing or
not, relating to terms and conditions of the Employee’s employment with the
Company are hereby canceled. No waiver by either party of any breach by the
other party of any term, condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent time.




 




11.                                Binding Effect. Except as otherwise expressly provided
in this Agreement, the Employee’s rights and obligations under this Agreement
shall not be transferable by assignment or otherwise, such rights shall not be
subject to commutation, encumbrances, or the claims of the Employee’s
creditors, and any attempt to do any of the foregoing shall be null and void.
The provisions of this Agreement shall be binding upon, inure to the benefit
of, and be enforceable by the Employee and his heirs, beneficiaries and
personal representatives, and shall be binding upon and inure to the benefit
of, and be enforceable by, the Company, its successors and assigns.




 




12.                                Governing Law; Severability. Except as otherwise set forth herein,
this Agreement is governed by and is to be construed and enforced in accordance
with the laws of the State of North Carolina without regard to principles of
conflicts of law. If any provision or portion of this Agreement shall be
determined to be invalid unenforceable for any reason, in whole or in part, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.




 




13.                                Withholding of Taxes. The Company may withhold from any
compensation payable under this Agreement all federal, state, city, or other
taxes as shall be required pursuant to any law, regulation or ruling.




 




14.                                Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same instrument.




 




15.                                Notices. Any notice given to either party hereto shall be in
writing and shall be deemed to have been given when delivered personally or
sent by certified or registered mail, postage prepaid, return receipt
requested, duly and properly addressed to the party concerned at the address
indicated below or to such changed address as party may subsequently give
notice of:




 


6

















 




If to the Company:




 




Consonus Technologies, Inc.






301 Gregson Drive






Cary, North Carolina 27511






Attention: Michael G. Shook, President




 




with a copy to:




 




Wyrick, Robbins, Yates & Ponton, L.L.P.






4101 Lake Boone Trail, Suite 300






Raleigh, North Carolina 27607






Attention: Eric A. Vernon, Esq.




 




If to the Employee:




 




Robert McCarthy






STREET






CITY, STATE  ZIP




 




16.                                Headings.  The headings
contained in this Agreement are for reference purposes only and shall not be
deemed to be part of the Agreement or to affect the meaning or interpretation
of this Agreement.




 




[The next page is the signature page.]




 


7

















 




IN WITNESS WHEREOF, the
parties hereto have executed this Employment Agreement as of the date and year
first above written.




 




	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  CONSONUS TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Michael G. Shook

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  	
  (SEAL)

  
	
   

  	
  Robert McCarthy

  
					





 


8