EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is being entered into as of July 1,
1996, by and between DELSOFT CONSULTING, INC., a Georgia
corporation with principal offices at 000 Xxx Xxxxxx Xxxxx, Xxxxx
X-0, Xxxxxxx, Xxxxxxx 00000 (hereinafter called the "Company"),
and XXXXXXX X. XXXXX, residing at 000 Xxxxxxx Xxxxx, X.X., Xxxxxx
xx Xxxxxx, Xxxx of Atlanta 30324 (hereinafter called the
"Employee").
1. POSITION; DUTIES.
Employee shall serve as General Counsel and CFO of the
Company. As such, Employee shall report to the Board of
Directors of the Company. Employee shall use his best efforts to
perform the duties generally associated with his position as CFO
of the Company and as are reasonably assigned by the Board of
Directors of the Company. Employee shall in good faith devote
his full time and best efforts to performance of his duties
hereunder, and shall not actively engage in any other business in
any capacity whatsoever, except upon the written approval of the
Board of Directors of the Company.
2. TERM OF EMPLOYMENT AGREEMENT; EXTENSION
The term of this employment Agreement shall begin on January
1, 1997, and terminate as of the close of business on December
31, 2001, On January 1, 2002, and on each anniversary thereof,
the term of this employment Agreement shall be automatically
extended one year unless, not less than 90 days prior thereto,
the Company notifies Employee that it is electing not to so
extend the term of this Employment Agreement. The term of this
Employment Agreement shall automatically terminate upon any
termination of this Employment Agreement pursuant to Section 4.
3. COMPENSATION AND BENEFITS
a) BASE SALARY. Employee's salary shall not be less
than $111,500 per year, payable in accordance with the
Company's normal pay practices. Employee shall be entitled
to an annual increase equal to 5% of his base salary for the
prior year. In addition, on a quarterly basis, Employee
shall receive a stipend of $100 for each day during the
preceding quarter that Employee spent traveling for business
purposes and that required an overnight stay.
b) BONUS. Employee shall receive on an annual basis
an option, in substantially the form attached hereto as
Schedule A, to purchase twenty-five thousand (25,000 shares
of Company stock at a price equal to one percent (1%) of the
value of the Company stock on the calendar date Employee
exercises such option.
Employee will further be entitled to the additional sum of
$500.00 for any month in which the hours billed by the Company
equal or exceed fifteen thousand (15,000) hours. Payment, if
any, shall be made in cash on the 15th day of each month based on
the total hours billed in the preceding month. The additional
sum of $500.00 shall be further increased in increments of
$250.00 for each increase of five thousand (5,000) hours billed
by the Company in any month (e.g. Employee will be entitled to
the additional sum of $750.00 for any month in which the hours
billed by the Company equal or exceed twenty thousand (20,000)
hours, the additional sum of $1,000.00 for any month in which the
hours billed by the Company equal or exceed twenty-five thousand
(25,000) hours, etc.)
Employee will also participate in the Company Executive
Incentive Compensation Program which provides payout opportunity
to a maximum of 80 percent of base salary. Payout opportunities
under this plan will be measured on specific goals agreed upon
with the board of Directors of the Company.
c) FRINGE BENEFITS. Employee shall be entitled to
participate and receive benefits under the Company employee
and fringe benefit plans and arrangements. Employee will
also participate in the Company director and Officer
Insurance, plus two times Base Salary of life insurance.
d) COMPANY AUTOMOBILE. Employee will be provided
with a Company automobile in accordance with the Company Car
policy.
e) VACATION. Employee shall be eligible for four (4)
weeks of vacation, plus five (5) sick days and Company
holidays, annually. In addition, Employee will be included
in the Company Vacation Carry-over Policy.
f) BUSINESS EXPENSES. Employee shall be entitled to
reimbursement of up to three hundred ($300.00) dollars per
month for all reasonable marketing, advertising, and/or
entertainment expenses incurred in the performance of his
duties hereunder.
4. TERMINATION.
a) DEATH. This Employment Agreement shall terminate
upon Employee's death. Upon such termination, the Company
shall pay to Employee's estate (or as Employee or his estate
shall otherwise direct) Employee's base salary through the
end of the calendar month in which Employee's death occurs
and will use its reasonable efforts to asset in the prompt
processing of claims under applicable employee benefit
plans.
b) CAUSE. This Employment Agreement may be
terminated by the Company by written notice to Employee for
cause as defined in this section. Cause means willful
misconduct, injurious to the Company and of a material
nature, gross negligence of duties, or material breach of
this Agreement.
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c) OTHER. The Employee may terminate this Employment
Agreement by a 90-day written notice to the Company at any
time. If Employee, however, elects to terminate this
Employment Agreement during its initial term, Employee will
not be entitled to receive any severance compensation.
d) ELECTION NOT TO EXTEND. If the Company elects not
to extend the term of this Employment Agreement pursuant to
Section 2, the Company shall pay Employee his base salary in
accordance with Section 3(a) for twelve (12) months
following the Date of Termination and continue Employee's
health and welfare benefits for six (6) months following the
Date of Termination on substantially the same basis as
existed on the Date of Termination.
e) DATE AND EFFECT OF TERMINATION. The Date of
Termination of this Employment Agreement shall be (i) in the
case of Section 4(a), the date of Employee's death; (ii) in
the case of a termination of this Employment Agreement
pursuant to Sections 4(b) or 4(c), the date specified in the
Company's or Employee's notice of such termination; or (iii)
in the case of the Company's election not to extend the term
o this Employment Agreement pursuant to Section 2, the last
date of the term of this Employment Agreement. Upon any
termination of this Employment Agreement pursuant to this
Section 4 or election not to extend the term of this
Employment Agreement pursuant to Section 2, Employee shall
not be entitled to any further payments or benefits of any
nature pursuant to this Employment Agreement, or as a result
of such termination or election, except as specifically
provided for in this Employment Agreement. Sections 5, 6,
7, and 8 (and to the extent applicable thereto, Sections 9,
10, 11 and 12) shall survive any termination of this
Employment Agreement pursuant to this Section 4 or election
not to extend the term of this Employment agreement pursuant
to Section 2.
5. CONFIDENTIALITY.
During the term of this Employment Agreement and thereafter,
Employee will not divulge to anyone or use for his own benefit or
the benefit of any third party any confidential information of
the Company or any of its subsidiaries (including, without
limitation, all technical designs and specifications, trade
secrets, financial data and marketing strategies) learned by
Employee in connection with the performance of his duties
hereunder unless (a) any such information becomes generally
available to the public other than as a result of disclosure by
Employee (b) Employee is requested or required (by oral question,
interrogatories, requests for i information or documents,
subpoena, civil investigative demand or similar process) to
disclose any such information, in which case Employee will (i)
promptly notify the Company of such request or requirement, so
that the Company may seek an appropriate protective order, and
(ii) cooperate with the Company, at its expense, in seeking such
an order. Upon termination of this Employment Agreement,
Employee shall promptly deliver to the Company all confidential
information of the Company or any of its subsidiaries.
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6. NONCOMPETITION.
During the term of this Employment Agreement, Employee will
not, directly or indirectly, engage or participate in as owner,
officer, director, manager, employee, consultant or otherwise or
have any financial interest in, or aid or assist anyone else in
the conduct of, any business which competes with the Company or
any of its subsidiaries in any line of business conducted or
contemplated during the term of this Employment Agreement;
provided, however, that Employee's ownership of not more than 5
percent (5%) of the securities of any corporation or other entity
which are traded on any national securities market or in the
over-the-counter market shall not constitute a violation of this
Section 6.
7. NONSOLICITATION.
During the term of this Employment Agreement and for a
period of eighteen (18) months following the Date of Termination
of this Employment Agreement, Employee will not entice or in any
other manner persuade or attempt to persuade any employee,
independent contractor, dealer, supplier, client or customer of
the Company or any of its subsidiaries to discontinue his or her
relationship or violate any agreement with the Company or any of
its subsidiaries as employee, independent contractor, dealer,
supplier, client or customer, respectively.
8. EQUITABLE RELIEF.
Employee: (i) acknowledges that any breach or attempted
breach of the provisions of any of Sections 5, 6, or 7 will cause
immediate and irreparable harm to the Company and that a remedy
at law for any such breach or attempted breach shall be
inadequate; (ii) agrees that the Company shall be entitled to
temporary or permanent injunctive relief with respect to any such
breach or attempted breach (in addition to any other remedies, at
law or in equity as may be available to it with respect to any
such breach or attempted breach); and (iii) agrees to waive any
requirements for the securing or posting of any bond in
connection with the obtaining of any such injunctive or other
equitable relief. If any term, provision, convenant or
restriction in Sections 6, 7 or 8 is held by a court of competent
jurisdiction to be invalid, void or unenforceable, such term,
provision, covenant or restriction shall be deemed amended to the
extent required to render it valid, binding and enforceable.
9. SUCCESSORS; AMENDMENT; NOTICE.
This Employment Agreement shall be binding upon and shall
inure to the benefit of the Company and its successors and
assigns. This Employment Agreement shall be binding upon
Employee and shall inure to the benefit of his heirs, executors,
administrators and legal representatives, but shall not be
assignable by Employee. This Employment Agreement may be amended
or altered only by the written agreement of the Company and
Employee. All notice or other communication permitted or
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required under this Employment Agreement shall be in writing and
shall be deemed to have been duly given if delivered by hand or
mailed (certified or registered mail, postage prepaid, return
receipt requested) to Employee or the Company at the respective
addresses on the first page of this Employment Agreement, or such
other address as shall be furnished in writing by Employee or the
Company to the other.
10. ENTIRE AGREEMENT.
This Employment Agreement embodies the entire agreement and
understanding between Employee and the Company with respect to
the subject matter hereof.
11. SEVERABILITY.
If any term, provision, covenant or restriction of this
Employment Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Employment
Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated.
12. GOVERNING LAW.
This Employment Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Georgia
applicable to contracts made and to be performed in such state
without giving effect to the principles of conflicts of laws.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed in its name and behalf by its duly authorized officer
and the Employee has hereunto set his hand, all on the day and
year first above written.
WITNESS DELSOFT CONSULTING, INC.
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxxxx X. Xxxxxxxxx
------------------------ ---------------------------
WITNESS
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxxx X. Xxxxx
------------------------- ---------------------------
Xxxxxxx X. Xxxxx
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SCHEDULE A
Stock Option Agreement
COMMON STOCK OPTION
(Nontransferable)
DELSOFT CONSULTING, INC.
(a Georgia Corporation)
FOR VALUE RECEIVED, DELSOFT CONSULTING, INC. (the
"Corporation") hereby grants to _______________ (the "Holder"),
subject to the terms and conditions hereinafter set forth, the
option to purchase an aggregate of twenty-five thousand (25,000)
shares of the common stock without par value (the "Common Stock")
of the Corporation.
1. TERM AND EXERCISE.
(a) This Option may be exercised by the Holder for
all, but not less than all, of the Shares of the Common Stock
subject to this Option at any time prior to the expiration of
this Option, which expiration shall occur simultaneously with the
first to occur of either of the following two (2) events:
(1) The failure of the Holder to have duly
exercised this Option in the manner provided herein prior to the
expiration of a period of five (5) years from the date of the
issuance of this Option.
(2) The cessation for any reason whatsoever of
the Holder as an officer of the Corporation. Upon the expiration
of this Option, as foresaid, this Option shall be and become null
and void.
(b) The Holder shall exercise this Option by surrender
to the Corporation of this Option with the Purchase Form attached
hereto as Exhibit "A", duly executed, accompanied by payment in
cash or by check of the price hereinafter set forth for the
Shares of the Common Stock so purchased (the "Option Price").
(c) Within sixty (60) business days following the
exercise of this Option by the Holder as hereinabove provided,
the Corporation shall cause to be issued in the name of and
delivered to the Holder a certificate or certificates
representing the Shares of the Common Stock so purchased. The
Corporation covenants and agrees that all of the Shares of the
Common Stock which may be issued and delivered upon the due
exercise o this Option by the Holder shall, upon such issuance
and delivery, be fully paid and nonassessable.
2. OPTION PRICE. The Option Price at which the Shares of
the Common Stock shall be purchased upon the exercise of this
Option shall be one percent (1%) of the market value as of the
date of exercise of this Option.
3. EXPIRATION OF OPTION ON CERTAIN ADDITIONAL EVENTS.
Anything contained in this Option to the contrary
notwithstanding, this Option shall expire and be and become null
and void unless, in the event of any consolidation of the
Corporation with, or merger of the Corporation into, any other
corporation (other than a merger with a wholly owned subsidiary
or in which the Corporation is the surviving corporation); any
transfer of all or substantially all of the assets of the
Corporation; or the dissolution, liquidation or winding-up of the
Corporation, this Option shall have been duly exercised, as
hereinabove provided, prior to the date which is the record date
for determining the holders of Common Stock entitled to vote upon
such consolidation, merger, transfer, dissolution, liquidation or
winding-up. The Corporation shall give to the Holder at least
ninety (90) days' prior notice of the date which shall be the
record date for determining the holders of Common Stock entitled
to vote upon such consolidation, merger, transfer, dissolution,
liquidation or winding-up.
4. NONTRANSFERABILITY. This Option shall not be assigned,
pledged, hypothecated, sold or otherwise transferred or
encumbered by the Holder. Notwithstanding the foregoing, this
Option shall be exercisable upon the death or permanent
disability of the Holder by Holder's heirs, personal
representatives, guardians, beneficiaries, devisees, or
otherwise.
5. NOTICES. Any notice or other communication to the
Corporation or to the Holder o this Option shall be in writing
and any such notice or communication shall be deemed duly given
or made if personally delivered or if mailed, by registered or
certified mail, postage prepaid, and if to the Corporation: to
the Corporation's office at 000 Xxx Xxxxxx Xxxxx, Xxxx X-0,
Xxxxxxx, Xxxxxxx 00000, and if to such Holder: to
_____________________________, or at such other address as the
Corporation or the Holder may designate by notice to the other.
6. GOVERNING LAW. This Option shall be governed by and
construed and enforced in accordance with the laws of the State
of Georgia.
7. SUCCESSORS AND ASSIGNS. All of the provisions of this
Option shall be binding upon the Corporation and its successors
and assigns and the Holder, his heirs, personal representatives
and guardians.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
IN WITNESS WHEREOF, DELSOFT CONSULTING, INC. has caused this
Option to be signed in its corporate name under its corporate
seal by its President and its corporate seal to be hereunto
affixed and its execution hereof to be attested by its Secretary,
as of this ____ day of _______________.
ATTEST: DELSOFT CONSULTING, INC.
_____________________________ By:______________________
Xxxxxxxx Xxxxxxxxx, Secretary Xxxxx Xxxxxxxxx,
President
ACCEPTED: Date:
_____________________________ __________________________
_____________________, Holder
EXHIBIT A
PURCHASE FORM
DELSOFT CONSULTING, INC.
000 Xxx Xxxxxx Xxxxx
Xxxxx X-0
Xxxxxxx, Xxxxxxx 00000
Gentlemen:
The undersigned hereby irrevocably subscribes for twenty
five thousand (25,000) shares of Common Stock of DELSOFT
CONSULTING, INC., pursuant to and in accordance with the terms
and conditions of the Stock Option Agreement dated as of
_______________, 1996, and hereby makes payment of
___________________ Dollars ($__________) therefor, and requests
that a certificate for such shares be issued in the name of the
undersigned and delivered to the undersigned at the address
listed below.
_________________________
_____________________[Name]
Address:
_________________________
_________________________
Dated: ________,____
