EXHIBIT 10.6
EMPLOYMENT AGREEMENT
AGREEMENT, effective on the Enterprises Solutions, Inc., and Delta
Mutual, Inc., made between Delta Mutual, Inc., a Delaware corporation
("Company"), and Xxxxxxx X. Xxxxxx ("Employee").
WHEREAS, the Company is engaged in the business of developing and
operating Internet and computer security solutions, government and corporate
systems integration and contract selling and development work; and
WHEREAS, the Company and the Employee wish to enter into an Employment
Agreement in order to retain Employee's ongoing services as the President and
Chief Executive of the Company or in such capacities as the Company's Board from
time to time determines:
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants, and conditions set forth herein and the performance of each, it is
hereby agreed as follows:
ARTICLE I
Employment and Duties
A. The Company hereby employs Employee as its President and Chief Executive
Officer for a fixed term of two years. Additional or different duties and titles
may be assigned to Employee from time to time by the Board of Directors
("Board") of the Company. Employee hereby accepts employment upon the terms and
conditions stated herein, and agrees to devote his time, attention, and energy
to promote and further the business of the Company.
B. Employee shall perform such duties, assume such responsibilities and devote
such time, attention and energy to the business of the Company as the Board
shall from time to time require. This provision shall not be construed to
prohibit Employee from engaging in other noncompeting business activities, or
from making personal investments in any form or manner.
C. All funds received by Employee on behalf of the Company, if any, shall be
held in trust for the Company and shall be delivered to the Company as soon as
practicable.
ARTICLE II
Compensation
2.01. Salary. The Employee shall receive an annual salary ("Salary") from the
Company in the amount of $150,000.00 during the first year of employment. The
Employee's Salary shall be payable pursuant to a monthly schedule consisting of
semimonthly payments in the amount of $5,769.23, which amount the Board has
determined is consistent with industry standards for executives of similar
Companies. On the anniversary of the effective date of this agreement,
Employee's annual compensation shall be increased to $165,000 a year. Employee's
annual compensation shall be increased 20% each year thereafter.
2.02. Expense Reimbursement. The Company shall reimburse Employee for all
reasonable travel, entertainment and other expenses related to his employment
and promotion of the Company's interests. Employee shall provide a written
accounting and receipt of all expenses for which he seeks reimbursement. The
Company shall reimburse employee for all such expenses within ten (10) days
following of its receipt of a written accounting.
2.03. Bonuses. The Company shall pay to Employee, on a quarterly basis, such
bonuses as the Board of Directors deems appropriate based on employee's
performance.
2.04. Employee Comp. Plan Participation. The Employee shall be entitled to
participate in any and all stock option plans, stock bonus plans, pension plans,
profit sharing plans, retirement plans, or other employee compensation plans
adopted by the Company.
2.05. Benefits. The Employee shall be entitled to such fringe benefits, as the
Company shall establish for its employees generally. In addition, Employee, as
the Company's Chief Executive Officer and President, shall be entitled to four
weeks paid vacation for each year of employment; life insurance in the amount of
$1,000,000; disability insurance coverage consistent with industry standards;
disability pay for any period not covered by employee's disability carrier not
to exceed 12 months; an automobile allowance not to exceed $650 per month; and
membership at a Country Club of employee's choice.
2.06. Stock Compensation. During the term of the Employment Agreement, Employee
shall receive stock options as determined fair and equitable by the Company's
compensation committee taking into account employee's position with the company,
and norm of option consideration provided to other similarly situated chief
executives.
In the event the Company terminates Employee's employment on or before the
second anniversary date of this agreement, for any reason other than for cause;
or in the event of a "change in control of the Company", as defined in section
5.02E below, Employee's right to obtain all the benefits of this agreement, plus
stock options representing not less than 5% of the Company's then outstanding
common stock, shall accrue and vest.
ARTICLE III
Non-Competition Agreement
A. Employee will not, during the period of this Agreement directly or
indirectly, for himself or on behalf of or in conjunction with any other person,
persons, company, partnership, corporation or business i) call upon any customer
of the Company (including, but not limited to, any customer obtained for the
Company by Employee) for the purpose of soliciting or selling any products or
services in competition with those of the Company or its affiliates; (ii) call
upon any employee of the Company or any of its affiliates for the purpose or
with the intent of enticing them away from or out of the employ of the Company
for any reason whatever; (iii) establish, be employed by, or advise, consult
with or otherwise become a part of any company, partnership, corporation or
other business entity or venture in competition with the Company or its
affiliates; or (iv) disclose the Company's customers or any other trade secrets
of the Company to any person, firm partnership, corporation or business for any
reason or purpose whatsoever.
B. Because of the difficulty of measuring the economic losses to the Company in
the event of Employee's breach of this provision, and because of the immediate
and irreparable damage that a breach would cause the Company, Employee agrees
that in the event of his violation of paragraph A, the Company shall be entitled
to appropriate injunctive relief.
C. It is agreed by the parties that the covenants in this Paragraph 3 are
necessary to protect the goodwill and business interests of the Company and they
impose a reasonable restraint on Employee in light of the activities and
business of the Company.
D. The covenants in this Paragraph 3 are severable from all other provisions of
this agreement and should any part of this agreement be determined to be
unenforceable by a Court of competent jurisdiction, such determination shall not
affect the continued validity of the covenants in this paragraph 3. Moreover, in
the event a Court of competent jurisdiction were to determine that the scope,
time or territorial restrictions set forth herein are unreasonable, then it is
the intention of the parties that such restrictions be enforced to the fullest
extent that the court deems reasonable, and the Agreement shall thereby be
reformed.
E. All of the covenants in this Paragraph 3 shall be construed independent of
any other provisions in this Agreement, and the existence of a claim or cause of
action by Employee against the Company, whether predicated on this Agreement or
otherwise, shall not impact the Company's right or ability to enforce such
covenants.
ARTICLE IV
Non-Disclosure and Proprietary Information.
A. The Employee recognizes and acknowledges that the information, techniques,
processes, formulas, developments, experimental work, work in progress, and
business lists of the Company's customers are the trade secrets or confidential
information of the Company which are the valuable, special and unique assets of
the Company. In addition, Employee recognizes that the Company is continually
engaged in research and development of new inventions and improvements to its
information, techniques, processes, formulas, developments, and other secrets
and confidential matters relating to Company's business. Therefore, Employee
agrees as follows:
1. That Employee will hold in strictest confidence and not disclose,
reproduce, publish or use in any manner, whether during or subsequent to his
employment, without the express authorization of the Board of Directors of the
Company, any information, manufacturing techniques, processes, business
customer lists, or any other secrets or confidential information designated from
time to time by the Board of Directors of Company, except as such disclosure or
use may be required in connection with Employee's work for the Company, or as
compelled to disclose such information by a Court of law.
2. That upon request or at the time of leaving the employ of the
Company, the Employee will deliver to the Company, and not keep or deliver to
anyone else, any and all notes, memoranda, documents and, in general, any and
all material relating to the Company's business.
3. That the Board of Directors of the Company may from time to time
designate other subject matters requiring confidentiality and secrecy which
shall be deemed to be covered by the terms of this Agreement.
B. In the event of a breach or threatened breach by the Employee of the
provisions of this Article, the Company shall be entitled to an injunction:
1. Restraining the Employee from disclosing, in whole or in part, any
information as described above or from rendering any services to any person,
firm, corporation association or other entity to whom such information, in whole
or in part, has been disclosed or is threatened to be disclosed; and/or
2. Requiring that Employee deliver to Company all information,
documents, notes, memoranda and any and all discoveries or other material as
described above upon Employee's leave of the employ of the Company. Nothing
herein shall be construed as prohibiting the Company from pursuing other
remedies available for such breach or threatened breach, including the recovery
of damages from the Employee.
ARTICLE V
Term; Termination
5.01. Term. The term of this agreement shall begin on the date of the
Enterprises Solutions and Delta Mutual merger, 2001, and continue until for two
years thereafter, unless further extended or sooner terminated as herein
provided herein. After November 1, 2001, the term of the Employee's employment
shall be automatically extended one (1) additional year unless, the Company, on
or before sixty (60) days prior to the expiration of the term, shall deliver to
Employee notice that the term of the Employee's employment will not be extended.
5.02 Termination. This Agreement and Employee's employment may be terminated in
any one of the following ways:
A. The death of Employee.
B. Upon thirty (30) days written notice ("Notice of
Termination") to Employee if, because of illness or physical or mental
disability or other incapacity which continues for a period in excess of three
(3) months, Employee is unable to perform his duties under this agreement.
C. Immediately and without notice "for cause". For purposes of
this Agreement, "for cause" is limited to willful, and material acts of
dishonesty, including theft, misappropriation or material and intentional acts
of fraud; invidious discrimination, sexual harassment, and assault and battery
upon an officer or employee of the Company. The term "for cause" shall also
include willful breaches by Employee of his fiduciary duties to the Company and
its shareholders; material and persistent refusal to carry out lawfully assigned
duties; intentional and/or gross and reckless conduct, conviction of a felony or
other illegal public action that materially damages the Company's reputation.
The termination of the Employee for reasons other than those specified in the
preceding paragraph shall be deemed to be without justifiable cause. In the
event employee is terminated without cause, Employee shall be entitled to a
minimum severance package of two (2) years salary, or the remaining balance of
amounts due under this agreement, whichever is greater. Employee will also be
entitled to immediate issuance of all of the shares of common stock provided for
in this agreement.
D. Thirty (30) days notice by Employee of his intent to resign
his position.
E. Upon a "change in control", provided however, such "change
in control" shall not be deemed a termination for cause, and all
benefits herein provided for shall immediately vest and accrue in
employee's favor. Should Employee retain the same or similar position
with the acquiring entity as he held with the Company, Employee's
rights hereunder shall cease except for employee's right to receive the
common stock herein provided for. Also, in the event of a "change in
control" the Company shall automatically release any and all claims it
has against the Employee arising out of or related to any of the terms
of this agreement.
For purposes of this Agreement, a "change in control" shall
mean a change that would be required to be reported in Item I (a) of
Form 8-K under the Securities Exchange Act of 0000 (xxx "Xxxxxxxx
Xxx"). Such a change shall be deemed to have occurred if i) any
"person" (as that term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than the Company, as constituted, is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing
25% or more of the combined voting power of the Company's then
outstanding securities, (ii) during any period of three consecutive
years during the term of this Agreement, individuals who at the
beginning of such period constitute the Board cease for any reason to
constitute at least a majority thereof, unless the election of each
director who was not a Director at the beginning of such period has
been approved in advance by Directors representing at least two-thirds
of the Directors then in office who were Directors at the beginning of
the period.
F. In the event the Company terminates, or attempts to
terminate the employment of the Employee other than as provided above,
or the Company otherwise is in breach of the terms of this Agreement,
the Company agrees to pay or reimburse the Employee for all legal fees,
costs and other damages, including back-pay and benefits if applicable,
incurred as a result of such breach or wrongful termination.
5.3. Compensation Upon Termination or During Disability.
A. During any period that the Employee fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness
("disability period"), the Employee shall continue to receive his full salary at
the rate then in effect for such period until his employment is terminated
pursuant to section 5.02B hereof.
B. If the Employee's employment shall be terminated pursuant to
Section 5.02C, the Company shall pay the Employee his full salary through the
date of termination, at the rate in effect at the time Notice of Termination is
given, plus all outstanding expenses payable pursuant to Section 2.02 hereof and
the Company shall have no further obligations to the Employee under this
Agreement.
C. If the Employee shall terminate his employment under Section
5.02D hereof, the Company shall pay the Employee his full salary through the
date of termination at the rate in effect at the date of termination, plus all
outstanding expenses payable pursuant to section 2.02 hereof.
D. If the Company shall terminate the Employee's employment in
breach hereof or within one year of a "change in control of the Company", for
any reason other than death or disability under section 5.02A or B, then:
1. The Company shall pay the Employee the greater of the
remaining amounts due him under the employment agreement, or a minimum severance
package of (2) year's current salary. Employee will be entitled to immediate
issuance of all the shares of common stock provided for in this agreement.
2. The Company shall maintain in full force and effect, for
the continued benefit of the Employee for three (3) months or the term remaining
on this Agreement as of the Date of Termination, whichever is greater, all
employee benefits, including insurance and compensation plan participation,
which the Employee was entitled to participate immediately prior to the date of
termination provided that the Employee's continued participation is possible
under the general terms and provisions of such plans and programs. All such
benefit plans and programs shall be maintained at the level and value provided
immediately prior to the date of termination. In the event that the Employee's
participation in any such plan or program is barred, the Company shall arrange
to provide the Employee with benefits substantially similar to those which the
Employee would otherwise have been entitled to receive under such plans and
programs from which his continued participation is barred.
E. The Employee shall not be required to mitigate the amount of any
payment provided for in this Section by seeking other employment or otherwise.
ARTICLE VI
Representations of Employee
6.01. Employee has represented and hereby represents and warrants to the Company
that he is not subject to any restriction or non-competition covenant in favor
of a former
employer or any other persons or entity and that the execution of this Agreement
by Employee and his employment by the Company or its affiliates and the
performance of his duties hereunder will not violate or be in breach of any
agreement with a former employer or any other person or entity. Further,
Employee agrees to indemnify the Company and its affiliates for any proven
claim, including, but not limited to, attorney's fees and expenses of
investigation, by any such third party that such third party may now have or may
hereafter come to have against the Company or its affiliates based upon or
arising out of any non-competition agreement or invention and secrecy agreement
between Employee and such third party.
ARTICLE VII
Miscellaneous
7.01. Complete Agreement. This Agreement is not a promise of future employment.
There are no oral representations, understandings or agreements with the Company
or any of its officers, directors or representatives covering the same subject
matter as this Agreement. This written Agreement is the final, complete and
exclusive statement and expression of the agreement between the Company and
Employee. The terms of this Agreement cannot be varied, contradicted or
supplemented by evidence of any prior or contemporaneous oral or written
agreements. This written agreement may not be later modified except by a writing
signed by the Company and Employee, and no term of this Agreement may be waived
except by writing signed by the party waiving the benefit of such terms.
7.02. No Waiver. No waiver by the parties hereto of any default or breach of any
terms, condition or covenant of this Agreement shall be deemed to be a waiver of
any subsequent default or breach of the same or any other term, condition or
covenant contained herein.
7.03. Non Delegation of Duties. Employee understands that he has been selected
for employment by the Company on the basis of his personal qualifications,
experience and skills. Employee agrees, therefore, that he cannot delegate any
part of his duties under this Agreement.
7.04. Notice. Whenever any notice is required hereunder, it shall be given in
writing addressed as follows:
To the Company: Delta Mutual Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
To Employee: Xxxxxxx X. Xxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Notice shall be deemed given and effective three (3) days after the deposit in
the Unites States mail of a writing addressed as above and sent first class
mail, certified, return receipt requested, or when actually received. Either
party may change the address for notice by notifying the other party of such
change in accordance with this Section 7.04.
7.05. Headings. If any portion of this Agreement is held invalid or inoperative,
the other portions of this Agreement shall be deemed valid and operative and, so
far as is reasonable and possible, effect shall be given to the intent
manifested by the portion held invalid or inoperative. The paragraph headings
herein are for reference purposes only and are not intended in any way to
describe, interpret, define or limit the extent or intent of this Agreement or
of any part hereof.
7.06. Governing Law. This Agreement shall in all respects be construed according
to the laws of the District of Columbia.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
date herein first set forth.
DELTA MUTUAL, INC.
WITNESSED BY:
------------------------------- -----------------------------------
Xxxxxx X. Xxxxx XX
Treasurer/Secretary
Duly Hereunto Authorized
-------------------------------- -----------------------------------
Date Date
WITNESSED BY: EMPLOYEE:
--------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxx
