Exhibit 10.61




 




CHANGE IN CONTROL EMPLOYMENT AND SEVERANCE

AGREEMENT




 




This Change in Control Employment and Severance Agreement (the “AGREEMENT”)

is entered into this 26th day of November, 2002, between Norman D. Smith

(“Executive”) and Zamba Corporation, a Delaware corporation

(the “COMPANY”).  This Agreement is intended to provide

Executive with the compensation and benefits described herein upon the

occurrence of specific events following a Change in Control (as hereinafter

defined).




 




Certain capitalized terms used in this Agreement are defined in Article

VII.




 




The Company and Executive hereby agree as follows:




 




ARTICLE I




EMPLOYMENT

BY THE COMPANY




 




1.1          Executive is currently employed as the President and Chief Executive

Officer of the Company.




 




1.2          This Agreement shall

become effective upon the occurrence of a Change in Control.




 




1.3          The Company and Executive each agree and acknowledge that Executive is

employed by the Company as an “at will” employee and that either Executive or

the Company has the right at any time to terminate Executive’s employment with

the Company, with or without cause or advance notice, for any reason or for no

reason.  The Company and Executive wish

to set forth the compensation and benefits which Executive shall be entitled to

receive in the event that Executive’s employment with the Company terminates

under the circumstances described in Article II of this Agreement.




 




1.4          The duties and

obligations of the Company to Executive under this Agreement shall be in

consideration for Executive’s continued employment with the Company and

Executive’s execution of the general waiver and release described in Section

4.3.




 




ARTICLE II




TRIGGERING EVENTS




 




2.1          Involuntary

Termination of Employment During Term




 




(a)           If Executive’s employment is involuntarily

terminated by the Company without Cause during the Term, such termination of

employment will be a Triggering Event, and the Company shall pay or provide

Executive the compensation and benefits described in Article III.




 




(b)           If

Executive’s employment is involuntarily terminated by the Company for Cause

during the Term, such termination of employment will not be a Triggering Event,

and Executive will not be entitled to receive any

compensation or benefits under the provisions of this Agreement except as

otherwise specifically set forth herein.




 




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2.2          Voluntary

Termination of Employment During Term.




 




(a)           Executive

may voluntarily terminate his employment with the Company at any time during

the Term.  If Executive voluntarily

terminates his employment for Good Reason during the Term, such termination of

employment will be a Triggering Event, and the Company shall pay or provide

Executive the compensation and benefits described in Article III.




 




(b)           If Executive voluntarily terminates

his employment for any reason other than Good Reason during the Term, such

termination of employment will not be a Triggering Event, and Executive

will not

be entitled to receive any compensation or benefits under the provisions of

this Agreement except as otherwise specifically set forth herein.




 




2.3          Death

or Disability During Term.  If Executive’s employment with the Company

terminates on account of death or disability during the Term, such termination

of employment will be a Triggering Event, and the Company shall pay or provide

Executive the compensation and benefits described in Article III.




 




2.4          Employment

Through Term.  If Executive’s employment continues through

the end of the Term, such continuation of employment will be a Triggering

Event, and the Company shall pay Executive the compensation and benefits

described in Article III.




 




ARTICLE III




COMPENSATION AND BENEFITS




 




3.1          Right

to Compensation and Benefits.  If a Triggering Event occurs during the

Term, Executive shall be entitled to receive the compensation and benefits

described in this Agreement subject to the restrictions and limitations set

forth in Article IV.  If a

Triggering Event does not occur during the Term, Executive shall not be

entitled to receive any compensation and benefits described in this Agreement,

except as otherwise specifically set forth herein.




 




3.2          Severance

Payment. 

Upon the occurrence of a Triggering Event or, if later, upon the

termination of Executive’s employment with the Company during the Term

following a Triggering Event, Executive shall receive a lump sum severance

payment equal to the amount of Executive’s Base Salary that would have been

paid with respect to the period beginning on the date of the Triggering Event

and ending with the last day of the Term. 

Such lump sum amount shall be paid no later than thirty (30) days

following the date of the Triggering Event or, if later, the date of

termination of Executive’s employment with the Company and shall be subject to

all applicable tax withholding.




 




3.3          Health

Insurance Coverage.  Upon the occurrence of a Triggering Event

or, if later, upon the termination of Executive’s employment with the Company

during the Term following a Triggering Event, to the extent permitted by the

Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and by the

Company’s group health insurance policy, Executive and his covered dependents

will be eligible to continue their health insurance benefits at their own

expense. If Executive elects COBRA continuation coverage, the Company shall pay

Executive’s and covered dependents’ COBRA continuation premiums for six (6)

months following the date Executive’s coverage as an active employee under the

Company’s group health policy ceases, provided that the Company’s obligation to

make such payments shall terminate immediately if Executive becomes eligible

for other health insurance benefits at the expense of a new employer.  Executive agrees to notify the Company, in

writing, immediately upon acceptance of any employment which provides health

insurance benefits.  This Section 3.3

provides only for the Company’s payment of COBRA continuation premiums for the

period specified above.  This Section

3.3 is not intended to affect, nor does it affect, the rights of




 




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Executive, or Executive’s

covered dependents, under any applicable law with respect to health insurance

continuation coverage.




 




3.4          Stock

Option Acceleration.  Executive’s stock options under the

Company’s stock option plans which are outstanding as of the date of the

Triggering Event (the “Stock Options”) shall become fully vested and

exercisable upon the occurrence of a Triggering Event or upon the termination

of Executive’s employment during the Term which does not otherwise constitute a

Triggering Event, notwithstanding the then existing provisions of the relevant

Stock Option agreements, which provisions are expressly modified by this

Agreement.  The period of time during

which the Stock Options shall remain exercisable, and all other terms and

conditions of the Stock Options, shall be as specified in the relevant Stock

Option agreements.




 




3.5          Mitigation.  Except

as otherwise specifically provided herein, Executive shall not be required to

mitigate damages or the amount of any payment provided under this Agreement by

seeking other employment or otherwise, nor shall the amount of any payment

provided for under this Agreement be reduced by any compensation earned by

Executive as a result of employment by another employer or by retirement

benefits after the date of the Triggering Event, or otherwise.




 




ARTICLE IV




LIMITATIONS AND CONDITIONS ON BENEFITS;

AMENDMENT OF AGREEMENT




 




4.1          Other

Severance Benefits; Withholding of Taxes.  The benefits provided under

this Agreement are in lieu of any other benefit provided under any employment

contract or severance plan of the Company in effect at the time of a Triggering

Event.  The Company shall withhold

appropriate federal, state or local income and employment taxes from any

payments hereunder.




 




4.2          Obligations of Executive.  During the Term, Executive

agrees not to personally solicit any of the Company’s employees to become

employed elsewhere or provide the names of such employees to any other company

which Executive has reason to believe will solicit such employees.




 




4.3          Employee Agreement and Release Prior

to Receipt of Certain Benefits.  Prior to the receipt of any benefits under Section 3.2 above, Executive

shall execute an effective employee agreement and release in the form attached

hereto as Exhibit A.  Such employee

agreement and release shall specifically relate to all of Executive’s rights

and claims in existence at the time of its execution.  It is understood that Executive has twenty-one (21) days to

consider whether to execute such employee agreement and release and Executive

may revoke such employee agreement and release within seven (7) days after

execution of such employee agreement and release.  If Executive does not execute such employee agreement and release

within the twenty-one (21) day period, or if Executive revokes such employee

agreement and release within the seven (7) day period, no benefits shall be

payable under Section 3.2 above. 

Nothing in this Agreement shall limit the scope or time of applicability

of such employee agreement and release once it is executed and not timely

revoked.




 




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4.4          Certain Additional Payments.  If it shall be determined, either by the

Company or by a final determination of the Internal Revenue Service, that any

payment or distribution by the Company to or for the benefit of Executive,

whether paid or payable or distributed or distributable pursuant to the terms

of this Agreement (including, without limitation, the value ascribed to option

acceleration pursuant to Section 3.4 above) or otherwise (the “Payments”),

would cause Executive to become subject to the excise tax imposed by Section

4999 of the Code (the “Excise Tax”), then the Company shall pay to Executive,

within the later of ninety (90) days of the date of the Triggering Event or

ninety (90) days of the date of determination referred to above, an additional

amount (the “Gross-Up Payment”) such that the net amount retained by Executive,

after deduction of any Excise Tax and any federal (and state and local) income

and employment taxes on the Gross-Up Payment, shall be equal to the

Payments.  For purposes of determining

the amount of the Gross-Up Payment, Executive shall be deemed to pay federal,

state and local income taxes at the highest nominal marginal rate of federal,

state and local income taxation in the calendar year in which the Gross-Up

Payment is made, net of the maximum reduction in federal income taxes which

could be obtained from deduction of such state and local taxes.  If the Excise Tax is subsequently

determined, whether by the Company or by a final determination of the Internal

Revenue Service, to be less than the amount taken into account to determine the

amount of the Gross-Up Payment, then Executive shall repay to the Company at

that time the portion of the Gross-Up Payment attributable to such reduction

(plus an amount equal to any tax reduction, whether of the Excise Tax, any

applicable income tax, or any applicable employment tax, which Executive may

enjoy as a result of such initial repayment). 

If the Excise Tax is subsequently determined, whether by the Company or

by a final determination of the Internal Revenue Service, to be more than the

amount taken into account to determine the amount of the Gross-Up Payment, then

the Company shall pay to Executive an additional amount, which shall be

determined using the same methods as were used for calculating the Gross-Up

Payment, with respect to such excess. 

For purposes of this Section 4.4, a determination of the Internal

Revenue Service as to the amount of Excise Tax for which Executive is liable

shall not be treated as final until the time that either (i) the Company agrees

to acquiesce in the determination of the Internal Revenue Service or (ii) the determination

of the Internal Revenue Service has been upheld in a court of competent

jurisdiction and the Company decides not to appeal such judicial decision or

such decision is not appealable.  If the

Company chooses to contest the determination of the Internal Revenue Service,

then all costs, attorneys’ fees, and other expenses shall be paid by the

Company.




 




4.5          Amendment or Termination.  This Agreement may be amended

or terminated only upon the mutual written consent of the Company and

Executive.




 




ARTICLE V




OTHER RIGHTS

AND BENEFITS NOT AFFECTED




 




5.1          Nonexclusivity.  Nothing in the Agreement shall prevent or

limit Executive’s continuing or future participation in any benefit, bonus,

incentive or other plans, programs, policies or practices provided by the

Company and for which Executive may otherwise qualify, nor shall anything

herein limit or otherwise affect such rights as Executive may have under any

stock option or other agreements with the Company; provided, however, that in

accordance with Section 4.1 above, any benefits provided hereunder shall be in

lieu of any other severance payments to which Executive may otherwise be

entitled, including, without limitation, under any employment contract or

severance plan, and benefits under this Agreement shall be offset to the extent

necessary to give effect to this proviso. 

Except as otherwise expressly provided herein, amounts which are vested

benefits or which Executive is otherwise entitled to receive under any plan,

policy, practice or program of the Company at or subsequent to the effective

date of a Change in Control shall be payable in accordance with such plan,

policy, practice or program.




 




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5.2          Employment Status.  This Agreement does not

constitute a contract of employment, nor does it impose on Executive any

obligation to remain as an employee or on the Company any obligation

(i) to retain Executive as an employee, (ii) to change the status of

Executive as an at will employee, or (iii) to change the Company’s

policies regarding termination of employment.




 




ARTICLE VI




NON-ALIENATION

OF BENEFITS




 




No benefit hereunder shall be subject to anticipation, alienation,

sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to

do so shall be void.




 




ARTICLE VII




DEFINITIONS




 




For purposes of the Agreement, the following terms shall have the

meanings set forth below:




 




7.1          “Agreement” means this Change in Control Severance Agreement.




 




7.2          “Base

Salary” means Executive’s salary (excluding

bonus, any other incentive or other payments and stock option exercises) at the

rate paid by the Company in consideration for Executive’s service on the day

prior to the effective date of a Change in Control or at such higher rate as

may be in effect during the Term and which is includable in the gross income of

Executive for federal income tax purposes or which would have been includable

in gross income except for an election either under Section 125 or 402(e)(3) of

the Code or under the terms of a nonqualified deferred compensation arrangement

sponsored by the Company.




 




7.3          “Cause” means either of the following: (i) an intentional or grossly negligent

act by Executive causing material harm to the Company or (ii) Executive’s

conviction of, or plea of “guilty” or “no contest” to, a felony.




 




7.4          “Change in Control” means the consummation of any one of the following events:  (i) a sale of all or substantially all of

the assets of the Company; (ii) a merger or consolidation in which the Company

is not the surviving corporation (other than a transaction the principal

purpose of which is to change the state of the Company’s incorporation or a

transaction in which the voting securities of the Company are exchanged for

beneficial ownership of at least fifty percent (50%) of the voting securities

of the controlling acquiring corporation); (iii) a merger or consolidation in

which the Company is the surviving corporation and less than fifty percent

(50%) of the voting securities of the Company which are outstanding immediately

after the consummation of such transaction are beneficially owned, directly or

indirectly, by the persons who owned such voting securities immediately prior

to such transaction; (iv) any transaction or series of related transactions

after which any person (as such term is used in Section 13(d)(3) of the

Securities Exchange Act of 1934), other than any employee benefit plan (or

related trust) sponsored or maintained by the Company or any subsidiary of the

Company, becomes the beneficial owner of voting securities of the Company

representing fifty percent (50%) or more of the combined voting power of all of

the voting securities of the Company; or (v) the liquidation or dissolution of

the Company.




 




7.5                               “Code” means the Internal Revenue Code of 1986, as amended.




 




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7.6          “Company”

means Zamba Corporation, a Delaware corporation, and any successor thereto.




 




7.7          “Disability”

means a disability which qualifies Executive as disabled for purposes of

receiving benefits under the Company’s long term disability plan applicable to

Executive.




 




7.8          “Good Reason”

means that any one of the following actions has been taken by the Company

without Executive’s express written consent and such action has not been

promptly reversed within thirty (30) days following written notice from

Executive to the Company:  (i) a

material reduction in Executive’s job responsibilities given Executive’s prior

position and responsibilities with the Company, it being deemed that a position

with a different title but providing similar activities, given the size of the

combined company, shall not be considered a material reduction in Executive’s

job responsibilities; (ii) any reduction in Executive’s compensation and

aggregate benefits as in effect immediately prior to such reduction; (iii)

relocation of Executive’s workplace to a facility or location more than

twenty-five (25) miles from Executive’s workplace immediately prior to such

relocation; (iv) any purported termination of Executive’s employment which is

not effected by reason of death, disability, or Cause; (v) the failure or

refusal of a successor to the Company to assume the Company’s obligations under

this Agreement, as provided in Section 8.7 below; or (vi) a material breach by

the Company or any successor to the Company of any of the material provisions

of this Agreement




 




7.9          “Term” means

the period beginning on the effective date of a Change in Control and ending

thirteen (13) months thereafter.




 




7.10        “Triggering Event” means an event described in Section 2.1(a), 2.2(a), 2.3 or 2.4

above.  No other event shall be a

Triggering Event for purposes of this Agreement.




 




ARTICLE VIII




GENERAL

PROVISIONS




 




8.1          Notices.  Any notices provided hereunder must be in

writing and such notices or any other written communication shall be deemed

effective upon the earlier of personal delivery (including personal delivery by

telex or facsimile) or the third day after mailing by first class mail, to the

Company at its primary office location and to Executive at his address as

listed in the Company’s payroll records. 

Any payments made by the Company to Executive under the terms of this

Agreement shall be delivered to Executive either in person or at his address as

listed in the Company’s payroll records.




 




8.2          Severability.  Whenever possible, each

provision of this Agreement will be interpreted in such manner as to be

effective and valid under applicable law, but if any provision of this

Agreement is held to be invalid, illegal or unenforceable in any respect under

any applicable law or rule in any jurisdiction, such invalidity, illegality or

unenforceability will not affect any other provision or any other jurisdiction,

but this Agreement will be reformed, construed and enforced in such

jurisdiction as if such invalid, illegal or unenforceable provisions had never

been contained herein.




 




8.3          Waiver.  If either party should waive

any breach of any provisions of this Agreement, he or it shall not thereby be

deemed to have waived any preceding or succeeding breach of the same or any

other provision of this Agreement.




 




8.4          Complete Agreement.  This Agreement, including

Exhibit A, constitutes the entire agreement between Executive and the Company

and it is the complete, final, and exclusive embodiment




 




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of their agreement with regard

to this subject matter.  It is entered

into without reliance on any promise or representation other than those

expressly contained herein.




 




8.5          Counterparts.  This Agreement may be executed

in separate counterparts, any one of which need not contain signatures of more

than one party, but all of which taken together will constitute one and the

same Agreement.




 




8.6          Headings.  The headings of the Articles

and Sections hereof are inserted for convenience only and shall neither be

deemed to constitute a part hereof nor to affect the meaning thereof.




 




8.7          Successors and Assigns.  This Agreement is intended to

bind and inure to the benefit of and be enforceable by Executive and the

Company, and their respective successors, assigns, heirs, executors and

administrators, except that Executive may not delegate any of his duties

hereunder and he may not assign any of his rights hereunder without the written

consent of the Company, which consent shall not be withheld unreasonably.




 




8.8          Attorneys’ Fees.  If either party hereto brings

any action to enforce his or its rights hereunder, the prevailing party in any

such action shall be entitled to recover his or its reasonable attorneys’ fees

and costs incurred in connection with such action.




 




8.9          Choice of Law.  All questions concerning the

construction, validity and interpretation of this Agreement will be governed by

the law of the State of Minnesota.




 




8.10        Construction of Plan.  In the event of a conflict

between the text of the Agreement and any summary, description or other

information regarding the Agreement, the text of the Agreement shall control.




 




IN

WITNESS WHEREOF,

the parties have executed this Agreement on the day and year written above.




 




	

  ZAMBA CORPORATION,


  a Delaware corporation


  	

  NORMAN D. SMITH


  Executive


  
	

   


  	

   


  
	

   


  	

   


  
	

  By:


  	

  /s/ Michael H. Carrel


  	

   


  	

  /s/ Norman D. Smith


  	

   


  
	

   


  	

   


  
	

  Name: Michael H. Carrel


  	

   


  
	

   


  	

   


  
	

  Title: CFO


  	

   


  
	

   


  	

   


  
	

  Exhibit A: Employee Agreement and Release


  	

   


  
					





 




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EXHIBIT A




 




EMPLOYEE AGREEMENT AND RELEASE




 




 




I

understand and agree completely to the terms set forth in the foregoing

agreement.




 




Except as otherwise set forth in this Agreement, I hereby release,

acquit and forever discharge the Company, its parents and subsidiaries, and

their officers, directors, agents, servants, employees, shareholders,

successors, assigns and affiliates, of and from any and all claims,

liabilities, demands, causes of action, costs, expenses, attorneys fees,

damages, indemnities and obligations of every kind and nature, in law, equity,

or otherwise, known and unknown, suspected and unsuspected, disclosed and

undisclosed (other than any claim for indemnification I may have as a result of

any third party action against me based on my employment with the Company),

arising out of or in any way related to agreements, events, acts or conduct at

any time prior to and including the date I sign this Agreement, including but

not limited to:  all such claims and

demands directly or indirectly arising out of or in any way connected with my

employment with the Company or the termination of that employment, including

but not limited to, claims of intentional and negligent infliction of emotional

distress, any and all tort claims for personal injury, claims or demands

related to salary, bonuses, commissions, stock, stock options, or any other

ownership interests in the Company, vacation pay, fringe benefits, expense

reimbursements, severance pay, or any other form of compensation; claims

pursuant to any federal, state or local law or cause of action including, but

not limited to, the federal Civil Rights Act of 1964, as amended; the federal

Age Discrimination in Employment Act of 1967, as amended (“ADEA”); the federal

Americans with Disabilities Act of 1990; state laws comparable to the foregoing

federal laws; tort law; contract law; wrongful discharge; discrimination;

fraud; defamation; emotional distress; and breach of the implied covenant of

good faith and fair dealing; provided, however, that nothing in this paragraph

shall be construed in any way to release the Company from its obligation to

indemnify me pursuant to the Company’s Indemnification Agreement.




 




I

acknowledge that I am knowingly and voluntarily waiving and releasing any

rights I may have under the ADEA.  I

also acknowledge that the consideration given for the waiver and release in the

preceding paragraph hereof is in addition to anything of value to which I was

already entitled.  I further acknowledge

that I have been advised by this writing, as required by the ADEA, that: (A) my

waiver and release do not apply to any rights or claims that may arise after

the date I sign this Agreement; (B) I have the right to consult with an

attorney prior to executing this Agreement; (C) I have twenty-one (21) days to

consider this Agreement (although I may choose to voluntarily execute this

Agreement earlier); (D) I have seven (7) days following the execution of this

Agreement by the parties to revoke the Agreement; and (E) this Agreement

shall not be effective until the date upon which the revocation period has

expired, which shall be the eighth day after this Agreement is executed by me,

provided that the Company has also executed this Agreement by that date

(“Effective Date”).




 




 




	

   


  	

   


  	

  By:


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

  Date:


  	

   


  
					





 




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