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EXHIBIT 10.17
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "Agreement") is
entered into by and between Xxxxx Microcomputer Products, Inc. (the "Company")
and Xxxxx Xxxxxxx (the "Executive") on this 20th day of December, 1996.
For and in consideration of the employment or continued
employment, as the case may be, of the Executive by the Company, the mutual
covenants and promises contained herein, and in the Terms and Conditions of
Employment attached hereto as Exhibit "A," and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Executive hereby covenant and agree as follows:
1. Employment; Compensation. Company hereby employs or
continues to employ Executive as Vice President of Sales on the terms and
conditions set forth herein and Executive accepts such employment. Executive's
initial base salary shall be One Hundred Seventy Five Thousand and no/100
Dollars ($175,000.00) per year, and, subject to the provisions below, shall
continue for so long as Executive is employed by the Company, or until such
salary is modified by mutual consent of the parties hereto. The Company shall
review Executive's performance and salary annually. Executive shall be entitled
to receive bonuses in accordance with the Company's normal policies with respect
to similarly situated Executives, if any. In addition, Executive will be
entitled to receive further consideration, if any, pursuant to the Variable
Compensation Plan executed on or before the effective date hereof.
2. Term. Following execution, this Agreement shall
become effective January 6, 1997. The Term of this Agreement shall be two (2)
years from the effective date, unless sooner terminated in accordance with
paragraph 3 below, or if the events occur and Executive chooses to resign as set
forth in paragraph 4 below.
3. Termination and Severance. This Agreement may be
terminated by Company, its Chairman of the Board, its Chief Executive Officer,
or Executive with or without Cause. In the event Company, the Chairman of the
Board, or the Chief Executive Officer terminates this Agreement without Cause
during the Term, or if the events occur as set forth in paragraph 4 below during
the term, then Executive shall be entitled to severance pay in the form of
continuation of his base salary for six (6) months following the date of
termination ("Severance Pay"). In the event that Company, the Chairman of the
Board, or the Chief Executive Officer terminates Executive's employment for
Cause, or Executive voluntarily terminates employment other than for the events
set forth in paragraph 4 below, or the Term expires, the Company shall not be
obligated to pay any salary or other Compensation to Executive, including
Severance Pay, after the effective date of termination or resignation. Executive
agrees to provide Company with at least six (6) weeks advance written notice
prior to voluntary termination or resignation by Executive.
4. Change in Control. If any of the events constituting
a Change in Control of the Company shall have occurred, Employee shall be
entitled to two times Severance Pay (or continuation of his base salary for
twelve (12) months ) upon termination of employment, or resignation of
employment for Good Reason, before the first anniversary of the date of such a
Change in Control of the Company and during the term, unless such termination is
(a) due to Executive's death, (b) because of Executive's incapacity due to
physical or mental illness, or (c) by the Company for Cause, or unless such
resignation is for something other than Good Reason. In the event Executive's
employment with the Company is terminated for any reason prior to a Change in
Control (provided that such termination did not occur during
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the pendency of a Potential Change in Control) and subsequently a Change in
Control occurs, Employee shall not be entitled to Severance Pay under this
paragraph 4.
5. Successors. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company could be required to perform this Agreement if
no such succession had taken place. Failure of the Company to obtain such
assumption and agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle Executive to compensation from
the Company in the same amount and on the same terms to which Executive would be
entitled hereunder. As used in this Agreement, "Company" shall mean the Company
as hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of law
or otherwise.
6. Terms and Conditions. Executive acknowledges that
this Agreement, and his employment obligations hereunder, expressly include the
provisions set forth in the Terms and Conditions of Employment attached hereto
as Exhibit "A," which are incorporated herein by this reference thereto. This
Agreement shall supersede any prior employment agreement, and any restrictive
covenants, previously entered into by Executive with the Company.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals on the date and year first above written.
COMPANY:
/s/ Xxxxx Xxxxxxx (SEAL) By:/s/ X. X. Xxxxxxxxxxx (SEAL)
-------------------------------- -----------------------------------
Executive
Attest:
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[TERMS AND CONDITIONS OF EMPLOYMENT ON FOLLOWING PAGES]
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EXHIBIT "A"
TERMS AND CONDITIONS OF EMPLOYMENT
1. Duties and Responsibilities. Executive shall devote his full
time and best efforts to the duties and responsibilities assigned by the Company
and shall abide by this Agreement and the Company's Operations Policies.
2. Confidential Information, Trade Secrets. Executive shall not
use or disclose to any person or entity any Confidential Information or trade
secrets of Company other than as necessary in the fulfillment of this Agreement
in the course of employment. This paragraph shall be effective during the term
hereof and for a period of two (2) years after termination of employment,
whether with or without Cause.
3. Inventions. The Company and Executive acknowledge that in the
course of Executive's employment by the Company, Executive may from time to time
develop or participate in the development of software or technology. All works
or inventions conceived, originated, authored, or discovered, in whole or in
part, by Executive, which result from any work performed for the Company or
related to or useful in the business of the Company are and shall be the
exclusive property of the Company. Executive shall cooperate with the Company in
the protection of the Company's copyrights, patents, and other proprietary
rights therein and, to the extent deemed desirable by the Company, in the
registration of the same. Executive hereby assigns to the Company all of
Executive's right, title and interest in and to any and all inventions,
processes, systems and creations, whether or not patentable or copyrightable,
that Executive may conceive, develop, or create, in whole or in part, during his
employment with the Company, whether or not during normal working hours.
Executive shall sign and deliver all documents relative to said inventions
requested by the Company for the purpose of confirming the Company's title
thereto.
4. Company Property. Upon request of the Company, and without
request promptly on termination of this Agreement or Executive's employment
hereunder, Executive shall deliver all Company Property in Executive's
possession or control to the Company. Executive acknowledges and agrees that
title to all Company Property is vested in the Company, and Executive shall not
retain any such property or any copies thereof in any form, including magnetic
or electronic form.
5. Protective Covenants. Executive is and will during the course
of employment become intimately familiar with Confidential Information, trade
secrets, facilities and services, and other property of the Company, and the
protection of the Company requires that all such property and information must
remain the sole and private property of the Company to be used only for the
Company's benefit, not to be disclosed to any other party or used by Executive
against Company. Accordingly, Executive does hereby warrant, represent, covenant
and agree, as follows:
(i) Covenant Not to Compete. Executive agrees that, for a
period of one (1) year from the termination of his employment
with Company, whether with or without Cause, he shall not,
directly or indirectly, on behalf of himself or any other
person or entity, compete with the Company within a fifty (50)
mile radius of the Company's principal place of business in
Norcross, Georgia, by engaging in the manufacture, assembling,
or selling of products competitive with those designed,
manufactured, assembled, or sold by the Company at the time of
the termination of employment, in a capacity which requires
Executive to perform services substantially identical to the
services performed by Executive on behalf of Company.
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(ii) Covenant Not to Solicit Customers. During the term of
Executive's employment hereunder, and for a period of one (1)
years following the termination of such employment for any
reason whatsoever, Executive shall not (except on behalf of or
with the prior written consent of Company), either directly or
indirectly, on Executive's own behalf or on behalf of others,
solicit, divert, or appropriate any business for the
manufacture, assembling, or sale of products competitive with
those manufactured, assembled or sold by the Company, from any
customer or actively sought prospective customer of the
Company to whom the Company offered or provided products or
services, and with whom Executive had material contact at any
time during the twelve (12) months preceding the termination
of Executive's employment.
(iii) Covenant Not to Solicit Employees. During the term of
Executive's employment hereunder, and for a period of one (1)
year following the termination of such employment for any
reason whatsoever, Executive shall not employ or solicit the
employment of any employee of the Company who was an employee
of the Company at any time during the six (6) months preceding
the termination of Executive's employment with the Company,
for the purpose of causing such employee to take employment
with Executive or a competitor of the Company.
Executive agrees and acknowledges that the restrictions in
this Agreement are not vague, over broad or indefinite, and are reasonable and
designed to protect the legitimate business interests of the Company. In
addition to any other remedies which Company may have under the law for breach
of any or all of said covenants, Company shall be entitled to injunctive and/or
other equitable relief against Executive for any violation of any of said
Covenants.
6. Survival. Paragraphs 2, 3, 4, 5, and 6 hereof, together with
any provisions of the Company's Operations Policies expressly or by necessary
implication applicable after the termination of employment, shall survive
termination of this Agreement. Upon termination, Executive shall repay to
Company immediately any advances by Company, not offset by earnings or other
credits due him or her, even if not expressly made repayable at the time of such
advance, it being the intent of the parties that all such advances shall be
repayable as provided by this paragraph. Company may offset any sums owed to
Company by Executive against any amounts otherwise owed by Company to Executive.
No sums otherwise due Executive at termination shall be payable to Executive if,
at the time of termination or thereafter, Executive shall be in violation of any
term or provision of this Agreement.
7. Entire Agreement. This Agreement contains the entire
understanding and agreement between the parties, and all promises,
representations, warranties or inducements made by either party to the other,
including any prior employment agreement or restrictive covenants, not
specifically made in writing or made a part hereof by reference, are expressly
superseded and shall have no force or effect. This Agreement may not be modified
except in a writing signed by both parties hereto.
8. Severability. If any provision of this Agreement (including
any subparts of any paragraph) is invalid or unenforceable by any rule of law or
public policy, this Agreement shall be construed so as to delete herefrom the
invalid or unenforceable covenant or provision. To the extent that any provision
is invalid or unenforceable that may be valid or enforceable by limitation
thereof, then such provision shall be enforceable to the fullest extent
permitted under the law of the jurisdiction in which enforcement is sought. If
any particular provision is held to be invalid, illegal or unenforceable, all
other covenants, terms, conditions and provisions hereof shall be and remain in
full force and effect.
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9. Binding Effect. This Agreement shall be binding upon, and
shall inure to the benefit of, each respective party's heirs, successors, legal
representatives, executors and assigns. This Agreement shall be construed and
governed in accordance with the laws of the State of Georgia.
10. Definitions. Any word used in this Agreement which is defined
in this paragraph shall have the meaning set forth below:
(a) "Agreement." The Executive Employment Agreement,
together with the Terms and Conditions of Employment and any documents
incorporated therein by reference. In the event of any inconsistency between the
Agreement and any Operations Policies, the Agreement shall control.
(b) "Cause." The term "Cause" as used in the within and
foregoing Agreement shall mean (i) Executive's breach of a covenant or
obligation of this Agreement, including any of the Terms and Conditions of
Employment, or any failure or refusal by Executive to perform Executive's duties
hereunder to the satisfaction of the Board of Directors, or to comply with any
lawful directive of the Board of Directors, if, after receiving written notice
of such breach, failure or refusal to perform, Executive does not cure or
correct such breach, failure or refusal within five (5) business days after
Executive's receipt of such notice; and (ii) any act of Executive in the course
of Executive's employment that constitutes larceny, fraud, deceit, gross
negligence, a crime involving moral turpitude, wilful misrepresentation, wilful
misconduct, or failure to maintain the confidentiality of the Confidential
Information and trade secrets of Company.
(c) "Change in Control." "Change in Control" shall have
occurred if any of the following events shall occur:
(i) the Company is merged, consolidated or
reorganized into or with another corporation or other legal person in any
transaction or series of related transactions (other than a transaction to which
only the Company and one or more of its subsidiaries are parties) and as a
result of such merger, consolidation or reorganization less than a majority of
the combined voting power of the then-outstanding voting securities of the
surviving entity or person immediately after such transaction or series of
related transactions are held in the aggregate by persons or entities who were
holders of voting securities of the Company immediately prior to such
transaction; or
(ii) the Company sells all or substantially all
of its assets to any other corporation or other legal person in any sale or
series of related sales (other than a transaction to which only the Company and
one or more of its subsidiaries are parties).
(d) "Company." Xxxxx Microcomputer Products, Inc., and
any successor or assignee hereof.
(e) "Company Property." All property, without limitation,
whether real, personal, tangible or intangible, including all inventions,
confidential information, trade secrets, facilities, trade names, logos, patents
and all tangible materials and supplies (whether originals or duplicates and
including, but not in any way limited to, sample products, video tape cassettes,
film, catalogues, price lists, rate sheets, outstanding quotations, books,
records, manuals, sales presentation literature, training materials, calling or
business cards, customer record cards, customer files, customer names, addresses
and telephone numbers, supplier information, contacts, pricing and practices,
strategic partner information, files and records, current or prospective
business plans, Operations Policies, directives, correspondence, documents,
contracts, orders, messages, memoranda, notes, circulars, agreements, bulletins,
invoices and receipts, and sources of financing), which in any way pertain to
Company's business, whether or not furnished to Executive by
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Company and whether or not prepared, compiled, or acquired by Executive while
employed by Company, are the sole property of Company.
(f) "Compensation." Any and all payments, remuneration
and benefits, including employment, provided to Executive by the Company,
regardless of the form thereof. Such compensation as is paid to Executive shall
be conclusively deemed legally sufficient consideration for this Agreement.
(g) "Confidential Information." All confidential
information regarding the Company's business, including but not limited to its
methods of operation, products, software programs, equipment and techniques,
existing and contemplated facilities and services, inventions, systems, devices
(whether or not patentable), financial information and practices, plans,
pricing, selling techniques, names, addresses and phone numbers of the Company's
Customers and prospective Customers and suppliers and prospective suppliers,
credit information and financial data of the Company and the Company's Customers
and prospective customers and suppliers and prospective suppliers, particular
business requirements of the Company's Customers, and special methods and
processes involved in designing, producing and selling Company's facilities and
services, current and prospective business plans, strategic partner information,
files and records, and the terms of this Agreement, all shall be deemed
Confidential Information and the Company's exclusive property. The parties agree
that Confidential Information shall be deemed to be trade secrets under the
Georgia Trade Secrets Act. Confidential Information shall not include
information that is in the public domain or otherwise readily accessible to
members of the public.
(h) "Customer." Each person, corporation, firm,
partnership or other entity whatsoever, which has purchased or shall purchase
the Company's products, facilities or services.
(i) "Executive." The person signing this Agreement as
Executive, regardless of any title or duties which may now or hereafter be
assigned to such person by the Company. This Agreement shall govern the
employment relationship in any and all such situations.
(j) "Good Reason." Without Executive's express written
consent, the occurrence after a Change in Control of the Company of any of the
following circumstances:
(i) a reduction by the Company in Executive's
annual base salary as in effect on the date of the Change in Control;
(ii) the Company's requiring Executive to be
based at a Company office more than fifty (50) miles from the Company's offices
at which Executive is principally employed immediately prior to the date of the
Change in Control of the Company, except for required travel on the Company's
business to an extent substantially consistent with Executive's present business
travel obligations immediately prior to the Change in Control;
(iii) a reduction in the Executive's position,
duties or responsibilities as in effect on the date of the Change in Control; or
(iv) the failure of the Company to obtain the
agreement to assume and to perform this Agreement by any successor as
contemplated in section 5 of this Agreement.
(k) "Inventions." Any and all devices, systems, software
and other programs, processes, products, patents and any other creation (all of
the foregoing, for purposes of this paragraph, called "inventions") identical or
similar to or relating to devices, processes, systems, products or services
utilized and/or offered by the Company.
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(l) "Operations Policies." All written procedures,
policies, instructions from Company's officers, directors or managers, the
Company Employee Manual (if any), and all other written communications from the
Company to Executive individually, or to all Company's employees. Said
Operations Policies are hereby incorporated herein and expressly made a part of
this Agreement by this reference thereto.
(m) "Potential Change in Control." "Potential Change in
Control" shall be deemed to have occurred if:
(i) the Company enters into an agreement, the
consummation of which would result in the occurrence of a Change in Control of
the Company;
(ii) any person (including the Company) publicly
announces a serious and legitimate intention to take or to consider taking
actions which if consummated would constitute a Change in Control of the
Company; or
(iii) the Board adopts a resolution to the effect
that, for purposes of this Agreement, a Potential Change in Control of the
Company has occurred.
(n) "Termination." Cessation of this Agreement or the
underlying employment relationship, whether by action of the Executive or
Company, and whether voluntary or involuntary. Termination hereby may be with or
without Cause.
(o) "Terms and Conditions of Employment." This document
entitled Terms and Conditions of Employment, which is Exhibit "A" to the
Executive Employment Agreement, and all of the provisions hereof.
PLEASE INITIAL: /s/ Xxxxx Xxxxxxx
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Executive
