EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made as of this 8th day of December,
2000, by and between:
XXXXX SYSTEMS, INC., a Delaware corporation having its executive
office at 0000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxxx, Xxxxxxx 00000
(hereinafter referred to as "XXXXX")
AND
XXXXXXX X. XXXXXXX, an adult individual residing at 0000 Xxx Xxxxxxx
Xxx, Xxxxxx, Xxxxxxx 00000 (hereinafter "XXXXXXX")
WITNESSETH THAT:
WHEREAS, XXXXXXX is a founder of XXXXX and has been employed by
XXXXX since its organization pursuant to various oral agreements, and in
anticipation of becoming a publicly-traded company which desires to
protect the interests of the shareholders by providing for executive
continuity, the parties desire to replace those oral employment agreements
with a written employment agreement so as to assure potential investors of
the continuity of his employment and XXXXX'x continuing access to his
experience, background, know-how and contacts which will continue to be
useful and helpful to XXXXX in its business;
WHEREAS, the parties have agreed upon the terms of such employment,
based upon the preceding oral agreements, and desire a written, formal
contract to evidence their agreements;
NOW, THEREFORE, in consideration of the mutual promises, covenants
and forbearances contained herein, and intending to be legally bound, the
parties have agreed as follows:
1. EMPLOYMENT. For the term provided in Paragraph 2, XXXXX
hereby employs XXXXXXX, and XXXXXXX hereby accepts that employment, upon
the terms and conditions hereinafter set forth.
2. TERM.
(a) This Agreement shall become effective as of January 1, 2001.
(b) This Agreement, subject to the provisions of Paragraphs 16 and
17 below, shall continue and exist for an initial period from such
effective date for a period of thirty-six months, i.e., until December 31,
2003 (initial term).
(c) If, at September 30, 2003, neither party is then in default
under this Agreement, XXXXX may request that EMPLOYEE agree to extend the
term of this Agreement for an additional one (1) year period. Such
request shall be transmitted by XXXXX to XXXXXXX, in writing, on or before
three (3) months prior to the expiration date of the initial term, of its
intention to so extend the Agreement. XXXXXXX shall accept or reject such
requested extension within thirty (30) days after receipt of XXXXX'x
request; if XXXXXXX shall not respond within such thirty days, the request
shall be deemed denied. If XXXXX shall not give notice of its desire to
renew this Agreement on or before the three months prior to the expiration
date of the initial term, this Agreement shall terminate as provided.
(d) This Agreement shall be subject to a further one (1) year
extension under the procedure provided in subparagraph (c), provided that
at September 30 of the then existing extension year neither party is then
in default under this Agreement.
(e) Notwithstanding the foregoing, the term of this Agreement is
otherwise subject to the various termination provisions contained
hereafter.
3. COMPENSATION-BASE. (a) For all services rendered under this
Agreement, XXXXXXX shall be paid, as base compensation, such annual salary
as shall be determined by XXXXX'x Board of Directors from time to time,
but in no event shall such compensation be at a rate of less than One
Hundred Fifty Thousand Dollars ($150,000) per year. Such base
compensation shall be subject to a Cost-of-Living Adjustment (COLA)
annually based upon the percentage increase in the Cost-of-Living Index,
All Commodities, for the Atlanta, Georgia area (if available, otherwise
the New York City area). The COLA determination shall be made by
comparing the Index at the last day of each year of this Agreement to the
Index on the effective date of this Agreement (January 1, 2001), and any
increase shall be effective as of the first day of the succeeding year.
Such base compensation is to be payable in equal installments at intervals
no longer than semi-monthly. Such base compensation shall be in addition
to such incentive compensation, fringe benefits and bonuses as provided
elsewhere herein.
(b) At the end of each calendar year, XXXXX'x Board of Directors shall
review the performance of XXXXXXX for such year and, based upon such
evaluation, establish any increase in the base compensation payable to
XXXXXXX for the succeeding calendar year, as adjusted by subparagraph (a)
above. XXXXX shall not be obligated to provide any increase, in excess of
the increase in the Cost-of-Living Index, All Commodities, for the
Atlanta, Georgia area (if available, otherwise the New York City area)
during the prior calendar year.
4. COMPENSATION-INCENTIVE. (a) The base compensation for each
year of this Agreement, including any extensions to this Agreement, shall
be subject to a retroactive increase, based upon an earnings per share
formula (earnings of XXXXX divided by actual common shares of XXXXX issued
and outstanding at December 31 of each year, and not fully diluted) as
follows:
Profits Per Increase as a
Common Share Percent of Base Compensation
$.00 - $.10 5%
$.11 - $.20 10%
$.21 - $.30 20%
$.31 - $.40 30%
$.41 - $.50 40%
$.51 - $.60 50%
$.61 - $.70 70%
$.71 - $.80 90%
$.81 - $.90 110%
$.91 - $1.00 130%
over $1.00 150%
This retroactive increase, if any should occur, is not a bonus but a merit
adjustment to the base compensation. The calculation shall be made based
upon the annual audit of XXXXX'x financial statements and shall be paid in
equal amounts for the balance of the then current year on the regular
paydays, commencing with the first payday following release of the audit.
Any retroactive increase shall not affect the base compensation for
subsequent calculations. It is a separate adjustment from any other
adjustment under any other plan.
(b) The increase in compensation shall be payable in the year following
the year for which the calculation is made, but shall be deemed earned by
XXXXXXX'ss efforts during the prior year. Such increase shall be vested
as of December 31 of the year for which the calculation is being made,
regardless of the completion of this Agreement. Accordingly, for example,
payment thereof shall be made following the termination of this Agreement
whether or not XXXXX extends XXXXXXX'ss employment for that succeeding
year during which the payments are made. Payment shall be made over the
balance of the payroll dates of such payment year.
5. COMPENSATION-FRINGE BENEFITS. XXXXXXX shall receive at least
the following additional benefits, which may be extended or increased, but
not reduced, by XXXXX:
(a) Vacation - XXXXXXX shall be entitled to paid vacation of three (3)
weeks during the first three years of the initial term and of four (4)
weeks during the last two years of the initial term and any extension year
of this Agreement. Unused vacation time may be accumulated from year to
year if unused, and used in a subsequent year in addition to the vacation
time provided in such year; however, XXXXXXX shall not be compensated for
any unused vacation time at the end of the term of this Agreement.
(b) Medical Insurance - XXXXXXX shall receive such medical, surgical,
dental and/or hospitalization insurance as XXXXX shall provide to other
officers/employees, it being understood that XXXXX expects to periodically
review its personnel policies, including the medical, surgical, dental
and/or hospitalization insurance which it will provide, and the terms and
conditions of providing such insurance. XXXXXXX shall receive, from time
to time, the most favorable medical, surgical, dental and/or
hospitalization insurance offered to any of XXXXX'x officers/employees.
(c) Other - XXXXXXX shall receive such other fringe benefits as are
available to any other officers/employees/consultants. Nothing contained
in this Agreement shall be in lieu of any rights, benefits and privileges
to which XXXXXXX may be entitled under any 401(k), retirement, pension,
profit-sharing, insurance, ESOT/ESOP, hospitalization, medical, surgical,
dental, legal or other plans which may now be in effect or which may
hereafter be adopted, either by XXXXX or any subsidiary or affiliate of
XXXXX. XXXXXXX shall have the same rights and privileges to participate
in such plans and benefits as any other employee during his period of
employment and XXXXXXX shall be entitled to participate on a at least
parity with executives of equal rank.
6. COMPENSATION-BONUS. After the end of each calendar year,
XXXXX'x Board of Directors shall determine the net profits before taxes of
XXXXX for such prior year and shall determine any bonus for such year
payable to XXXXXXX. XXXXX shall not be obligated to provide any bonus.
Any bonus awarded shall be paid at such time or times, in such amounts or
installments, as XXXXX'x Board of Directors may determine.
7. COMPENSATION-DEFERRED. (a) XXXXX desires to recognize the
contributions of XXXXXXX from the date of incorporation to the date of
this Agreement, particularly the performance of services at little or no
compensation during the formative years. Accordingly, the following
deferred benefits have been granted in consideration of such prior
services and are not dependent upon completion of the terms of this
Agreement.
(b) Following termination of XXXXXXX'x employment hereunder, whether
early or upon completion of the term hereof, and whether early termination
is for cause, without cause, or for reasons of disability, XXXXX shall
provide XXXXXXX with the following benefits:
(i) XXXXX, at XXXXX'x cost and expense, shall continue XXXXXXX'x
medical, surgical, dental and hospitalization insurance coverage, as
in effect on the date of termination, for a period of two (2) years
following the date of termination. Thereafter, XXXXXXX shall have
the option to continue such insurance coverage at his expense.
and
(ii) if, during the term of XXXXXXX'x employment XXXXX shall have
obtained insurance on XXXXXXX'x life for a specific business purpose
(e.g., collateralization of institutional financing or key man
replacement insurance) and such insurance shall no longer be needed
for that purpose (e.g., upon repayment of the loan collateralized or
upon termination of XXXXXXX'x position as a key employee), then
XXXXX, at its cost and expense, shall continue such insurance in
force for the benefit of one or more beneficiaries designated from
time to time by XXXXXXX, for a period of up to two (2) years
following the date of termination. It is the intent of the parties
that this provision shall apply to any insurance obtained during
XXXXXXX'x employment, even where the need for such insurance shall
be obviated because of or following termination of XXXXXXX'x
employment. In such event the period of continued coverage would be
from the date the insurance need is obviated to a date two (2) years
from the date of termination of XXXXXXX'x employment. Thereafter,
XXXXXXX shall have the option to continue such insurance coverage at
his expense.
8. DUTIES. (a) XXXXXXX is engaged as the Chief Executive
Officer of XXXXX. XXXXXXX shall perform all usual and customary services
as such an executive, including but not limited to those set forth on
Exhibit A, attached hereto and made a part hereof. XXXXXXX'x performance
shall be subject to the supervision of XXXXX'X Board of Directors. The
precise job description and the specific services to be rendered by
XXXXXXX may be defined, interpreted, curtailed, or extended, from time to
time, by determination of XXXXX' Board of Directors, provided, however,
that any definition, interpretation, curtailment, or extension is
consistent with the status of, and/or educational experience required for,
the responsibilities for which XXXXXXX has been initially engaged
hereunder. It is the intent of this provision to provide XXXXX with
flexibility in assigning responsibilities to XXXXXXX and/or promoting
XXXXXXX, and this provision shall not be used to discipline, embarrass,
humiliate or harass XXXXXXX.
(b) In addition, XXXXXXX agrees to serve as a director of XXXXX so long
as so elected by XXXXX'x shareholders.
9. EXTENT AND PLACE OF SERVICES. XXXXXXX agrees that this
employment constitutes his primary employment and understands that his
primary loyalty and responsibility is to XXXXX. Accordingly, XXXXXXX shall
devote such adequate, reasonable, and proper time, attention, and energies
to the business of XXXXX as shall be necessary or consistent with such
understanding and XXXXXXX shall not, during the term of this Agreement be
engaged in any other business activity (whether or not such business
activity is pursued for gain, profit, or other pecuniary advantage), which
conflicts with XXXXXXX'x employment responsibilities hereunder, without
prior, written authorization of XXXXX'x Board of Directors. (It is
expressly agreed that XXXXXXX'x participation in the management of the
European/African/Asian operations, and his direct compensation from such
entities for such services is an approved and authorized activity.)
However, nothing contained herein shall be construed as preventing XXXXXXX
from investing his assets in such form or manner as XXXXXXX may select,
whether or not such investment will require any services on XXXXXXX'x part
in the operation of the affairs of the companies in which such investments
are made.
10. WORKING FACILITIES. XXXXXXX shall be furnished, at XXXXX'x
expense, with all necessary working facilities, including but not limited
to an equipped office, executive assistant, clerical help, and
telephone/facsimile/copying services, suitable to his position and
adequate for the performance of his duties.
11. EXPENSES. XXXXXXX is not authorized to incur expenses on
behalf of, or chargeable to, XXXXX, with respect to his business travel,
including transportation, lodging, food, entertainment, etc. except within
such guidelines as may be established from time to time by XXXXX'x
Management. XXXXX shall reimburse XXXXXXX for authorized expenses within
such guidelines upon presentation by XXXXXXX, from time to time, of an
itemized account of such expenditures in such form as XXXXX may require,
together with receipts or other proofs of the expenditures as may be
required.
12. NON-DISCLOSURE OF INFORMATION. (a) XXXXXXX recognizes and
acknowledges that, during the course of his employment, she will have
access to valuable "Proprietary Information" as defined in subparagraph
(b) below, including, but not limited to Inventions, Work Product and/or
Trade Secrets, contractual arrangements and compensation arrangements with
suppliers, manufacturers, sub-contractors and customers of XXXXX;
compensation arrangements with sub-contractors, vendors, and outside
personnel; costing, pricing and bidding methods, procedures, and amounts;
management and operating procedures and software; management information
systems, etc.; marketing plans and strategy; personnel policies and
contractual arrangements, including job assignments and compensation; and
that such information constitutes unique assets of the business of XXXXX
and of which XXXXX is the sole and exclusive owner. XXXXXXX will treat
such Proprietary Information on a confidential basis and will not, during
or after his employment, personally use or disclose all, or any part of,
such Proprietary Information to any person, firm, corporation,
association, agency, or other entity except as properly required in the
conduct of the business of XXXXX, or except as authorized in writing by
XXXXX, publish, disclose or authorize anyone else to publish or disclose,
any Proprietary Information of XXXXX with which XXXXXXX'x service may in
any way acquaint XXXXXXX. XXXXXXX shall surrender possession of all
Proprietary Information, including especially all Trade Secrets, to XXXXX
upon any suspension or termination of XXXXXXX'x employment with XXXXX. In
the event of a breach, or threatened breach, by XXXXXXX, of the provisions
of this Paragraph, XXXXX shall be entitled to a preliminary, temporary and
permanent injunction restraining XXXXXXX from disclosing in whole or in
part, any such Proprietary Information and/or from rendering any services
to any person, firm, corporation, association, agency, or other entity to
whom such information, in whole or in part, has been disclosed or is
threatened to be disclosed. Furthermore, nothing herein shall be
construed as prohibiting XXXXX from pursuing any other equitable or legal
remedies available to it for such breach or threatened breach, including
the recovery of damages from XXXXXXX.
(b) For purposes hereof, "Proprietary Information" shall not include
information which (i) is publicly available from a source other than
XXXXXXX or can be lawfully obtained from a third party or parties in
lawful possession thereof, or (ii) is publicly release in writing by
XXXXX, or (iii) is required to be disclosed pursuant to the authority of
any court or public agency.
(c) Nothing contained herein shall prohibit XXXXXXX from continuing to
use information known to XXXXXXX prior to the execution of this Agreement;
however, XXXXXXX shall not publish or disclose any such information which
as a result of XXXXXXX'x services hereunder shall have become Proprietary
Information of XXXXX.
(d) The parties recognize that the Proprietary Information of XXXXX most
probably derives from the services of XXXXXXX. Nothing contained herein
shall prohibit XXXXXXX from continuing to use information developed by
XXXXXXX during the term of this Agreement, provided that such information
is not used by XXXXXXX for competitive purposes; however, XXXXXXX shall
not publish or disclose any such information which as a result of
XXXXXXX'x services hereunder shall have become Proprietary Information of
XXXXX.
13. RESTRICTIVE COVENANT. (a) During the term of this Agreement
and for a period of twelve (12) months after the termination/of this
Agreement and any extension thereof, XXXXXXX will not, within the United
States or any other area of the world in which XXXXX is then operating
(including the European/African/Asian operations entities), directly or
indirectly, compete with, own, manage, operate, control, be employed by,
consult for, participate in, perform services for, or be connected in any
manner with the ownership, management, operation or control of any
business engaged in (i) the design, specification, integration and
installation of high speed voice and data communications infrastructure
and/or (ii) the sale of private labeled communications infrastructure
products. Nothing contained herein shall prohibit XXXXXXX, following
termination of this Agreement, from engaging in the management, operation,
control, employment by, consultation for, participation in, performance of
services for, or connection with a voice and data communications business
which is not in competition with the specific services and products of
XXXXX.
(b) XXXXXXX agrees that the "time", "geographic area", and "Scope of
Business" provisions of this restrictive covenant are reasonable and
proper and have been negotiated in connection with his employment
hereunder.
(c) XXXXX and XXXXXXX agree, that if any court of competent jurisdiction
shall, for any reason, conclude that any portion of this covenant shall be
too restrictive, the court shall determine and apply lesser restrictions,
it being the intent of the parties that some such restrictions shall be
applicable for the protection of XXXXX and its shareholders.
14. OWNERSHIP OF WORK PERFORMED. XXXXXXX hereby grants, bargains,
sells, conveys, transfers and delivers and agrees to grant, bargain, sell,
convey, transfer and deliver, without further consideration other than the
base compensation provided above, to XXXXX, all right, title and interest
in and to all work performed, all work product, all work in process, all
programs and all underlying programs (including but not limited to Basic,
Fortran, HTML, C++, Visual Basic, and any and all other codes and source
codes) and documentation for same which shall be and/or have been
performed by him. XXXXXXX hereby acknowledges that XXXXX is and shall be
entitled to secure any and all patents, copyrights, and trademarks with
respect to all of such work, work product, programs, etc. and XXXXXXX
covenants, warrants and represents that she shall execute all assignments,
documents, filings, acknowledgments and other papers which may be required
to assure, establish, confirm, and document XXXXX'x sole and exclusive
ownership to all of such (including Basic, Fortran, HTML, C++, Visual
Basic, and any and all other codes and source codes) and documentation for
same and the Work Product. "Work Product" shall mean all documentation,
software, programs, systems, source codes, Hardware Signatures, know-how
and information created, in whole or in part, by XXXXXXX during the
performance of his services hereunder whether or not copyrightable or
otherwise protectable. XXXXXXX, for himself, his successors and assigns,
covenants and agrees with XXXXX to warrant and defend title to the
property hereby sold to XXXXX, its successors and assigns against all and
every person and persons whomsoever.
15. NONSOLICITATION COVENANT. (a) For a period of twelve (12)
months after the termination of this Agreement (including any extension
thereof) XXXXXXX shall not, solicit, directly or indirectly, by any means,
any of the clients, customers, accounts, employees or "leads" of XXXXX,
determined as of the date of the termination of this Agreement.
(b) XXXXX and XXXXXXX agree, that if any court of competent jurisdiction
shall, for any reason conclude that any portion of this covenant shall be
too restrictive, the court shall determine and apply lesser restrictions,
it being the intent of the parties that some such restrictions shall be
applicable for the protection of XXXXX and its shareholders.
16. OWNERSHIP OF INVENTIONS AND DEVELOPMENTS. (a) For purposes of
this Agreement, the following definitions shall apply:
(i) "Inventions" shall mean:
(A) All inventions, improvements, modifications, and
enhancements, whether or not patentable, made by XXXXXXX during XXXXXXX'x
employment by XXXXX; and
(B) All inventions, improvements, modifications and
enhancements made by XXXXXXX, during a period of six (6) months after any
suspension or termination of XXXXXXX'x employment by XXXXX, which relate,
directly or indirectly, to the products and/or services of XXXXX.
(ii) "Work Product" shall mean all documentation, software,
programs, systems, source codes, Hardware Signatures, know-how and
information created, in whole or in part, by XXXXXXX during XXXXXXX'x
employment by XXXXX, whether or not copyrightable or otherwise
protectable, excluding Inventions.
(iii) "Trade Secrets" shall mean all documentation, software, and
information relating to the functionality of the products of XXXXX or any
plans therefor, or relating to the business of a third party or plans
therefor that are disclosed to XXXXX, which XXXXX does not disclose to
third parties without restrictions on use or further disclosure.
(b) XXXXXXX shall promptly disclose to XXXXX all Inventions and keep
accurate records relating to the conception and reduction to practice of
all Inventions. Such records shall be the sole and exclusive property of
XXXXX, and XXXXXXX shall surrender possession of such records to XXXXX
upon any suspension or termination of XXXXXXX'x employment with XXXXX.
(c) XXXXXXX hereby assigns to XXXXX, without further consideration to
XXXXXXX, the entire right title and interest in and to the Inventions and
Work Product and in and to all proprietary rights therein or based
thereon. XXXXXXX agrees that the Work Product shall be deemed to be a
"work made for hire". XXXXXXX shall execute all such assignments, oaths,
declarations and other documents as may be prepared by XXXXX to effect the
foregoing.
(d) XXXXXXX shall provide XXXXX with all information, documentation, and
assistance XXXXX may request to perfect, enforce, or defend the
proprietary rights in or based on the Inventions, Work Product or Trade
Secrets. XXXXX, in its sole discretion, shall determine the exact extent
of the proprietary rights, if any, to be protected in or based on the
Inventions and Work Product. All such information, documentation and
assistance shall be provided at no additional expense or cost to XXXXX,
except for out-of-pocket expenses which XXXXXXX incurs at XXXXX'x request.
17. DISABILITY. (a) XXXXX desires to recognize the contributions
of XXXXXXX during the period from incorporation to the date of this
Agreement. Accordingly, if XXXXXXX is unable to perform his services by
reason of illness or incapacity for a period of up to three (3) months,
XXXXX shall continue XXXXXXX full compensation. If XXXXXXX is unable to
perform his services after such three (3) months, XXXXX shall continue to
compensate XXXXXXX for an additional period of three (3) months but such
compensation may, at the option of XXXXX, be reduced by fifty percent
(50%). If such illness or incapacity shall continue for a period of six
(6) months, payment of compensation thereafter may, at the option of
XXXXX, be stopped altogether. The full compensation shall be reinstated
upon XXXXXXX'x return to service and the discharge of his full duties
hereunder, provided that such return to service is within nine (9) months
of the commencement of the illness or disability. Notwithstanding
anything herein to the contrary, XXXXX may, at its option, terminate this
Agreement at any time after XXXXXXX shall be absent from his employment,
for whatever cause, for a continuous period of more than nine (9) months,
and all obligations of XXXXX hereunder, other than Paragraph 7, shall
cease upon any such termination; Paragraph 7 shall remain in full force
and effect.
(b) XXXXX may elect to continue the payment of full compensation
notwithstanding the foregoing. Such payments shall be in the sole
discretion of XXXXX, may be discontinued at any time, and if initiated
shall not thereby become a duty or requirement.
18. TERMINATION OF EMPLOYMENT. (a) XXXXX can terminate XXXXXXX'x
employment at any time for good cause. Without intending to limit the
definition of good cause hereby, good cause will include:
(1) XXXXXXX'x death;
(2) the occurrence of one of the following events:
(i) XXXXXXX is convicted of a felony or any crime
involving moral turpitude or unethical conduct which in the
good faith opinion of XXXXX could impair his ability to
perform his duties, including the representation of XXXXX to
the public market; or
(ii) XXXXXXX commits an act, or fails to take action,
in bad faith and to the detriment of XXXXX, or
(iii) The good faith decision of the Board of Directors that
XXXXXXX is not managing XXXXX and directing its affairs in a manner
consistent with its then current business, revenues, and competitive
conditions to the extent that XxXxxxx'x actions constitute gross
negligence.
(b) The termination of XXXXXXX'x services shall not constitute a
termination of the restrictive obligations and duties under Paragraphs 12,
13, 14, 15 and 16.
(c) In the event of the bankruptcy (Chapter 7), reorganization (Chapter
11) or other termination of the business of XXXXX, or the termination of
this Agreement under sub-paragraph (a)(2)(iii) above, the provisions of
Paragraph 13 shall continue in full force and effect only so long as full
base compensation by XXXXX shall continue.
19. ARBITRATION. Any controversy or claim arising out of, or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in Atlanta, Georgia in accordance with the rules then
pertaining of the American Arbitration Association, but with all rights of
discovery provided by the Georgia Rules of Civil Procedure, and judgment
upon the award rendered may be entered in any court having jurisdiction
thereof. Cost of the arbitration shall be borne by XXXXX, regardless of
who initiates the proceeding. The losing party shall reimburse the
reasonable attorney's fees of the prevailing party.
20. WAIVER OF BREACH. The waiver by either party of a breach of
any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by such other party. The
failure of a party to exercise any rights or privileges under this
Agreement shall not be deemed to be a waiver or extinguishment of such
rights or privileges, all of which shall continue to be exercisable.
21. BENEFIT. The rights and obligations of XXXXX under this
Agreement shall inure to the benefit of, and shall be binding upon, its
successors and assigns. The protection of Paragraphs 12, 13, 14, 15 and
16 shall inure to the benefit of XXXXX and any successors and assigns. The
rights and obligations of XXXXXXX under this Agreement shall inure to the
benefit of, and shall be binding upon, his heirs, administrators,
executors, successors and assigns.
22. NOTICES. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing, and if either personally
delivered or sent by certified mail, to his residence in the case of
XXXXXXX, or to its principal office in the case of XXXXX.
23. LIFE INSURANCE. XXXXX and/or one or more of its subsidiaries
may, in its discretion at any time after the execution of this Agreement,
apply for and procure, as owner and for its own benefit, insurance on the
life of XXXXXXX, in such amounts and in such forms as XXXXX may choose.
XXXXX shall not be required to give XXXXXXX any interest whatsoever in any
such policy or policies, (although nothing contained herein shall be
deemed to prohibit any such arrangement) but XXXXXXX shall, at the request
of XXXXX, subject himself to such medical examination, supply such
information, and execute such information releases and documents as may be
required by the insurance company or companies to whom XXXXX has applied
for such insurance.
24. ENTIRE AGREEMENT. This instrument contains the entire
agreement of the parties and may be modified only by agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
25. APPLICABLE LAW. This Agreement shall be governed for all
purposes by the laws of the State of Georgia. If any provision of this
Agreement is declared void, such provision shall be deemed severed from
this Agreement, which shall otherwise remain in full force and effect.
26. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, including facsimile counterparts, any one of which shall be
deemed to be an original.
IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound, have hereunto set their hands and seals as of the day and year
herein above written.
XXXXX SYSTEMS, INC.
ATTEST:
By:
President
Secretary
WITNESS: XXXXXXX:
XXXXXXX X. XXXXXXX