THIS EMPLOYMENT AGREEMENT is being entered into as of this 19th day of
September, 1999, by and between DELSOFT CONSULTING, INC., a Georgia corporation
with principal offices at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter
called the "Company"), and XXXXX XXXX, residing at 0000 Xxxxxx Xx., Xxxx xx
Xxxxxx, Xxxxx of Indiana, (hereinafter called the "Employee").
1.POSITION; DUTIES.
Employee shall serve as President of the Company. As such, Employee shal
report to the Board of Driectors of the Company. Employee shall use his best
efforts fo perform the duties generally associated with his position as
President 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 as of September 19,
1999, and terminate as of the close of business on September 18, 2002. On
September 19, 2002, and on each anniversary thereof, the term of this
Employement 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 $146,000
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.
b.Bonus. Employee shall receive an option, in substantially the
form attached hereto as Schedule A, to purchase two million (2,000,000) shares
of Company stock at a price equal to 100% of the fair market value of the
Company stock on the calendar date Employee is granted such option (the
"Option"). Notwithstanding the foregoing, in the event the Company or Employee
terminates this Agreement pursuant to Section 4 herein, this Option, or any
unexercised portion thereof, shall be immediately null and void.
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 (to be obtained as soon as reasonably practicable after the date first
stated hereinabove), plus two times Base Salary of life insurance.
x.Xxxxxxx 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.
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 assist 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.
c.Other. The Employee may terminate this Employment Agreement by
a 60-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 not less than three
(3) 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.
x.Xxxx 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 of 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 6, 7,
8, and 9 (and to the extent applicable thereto, Sections 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 Employement Agreement and for a period of two
(2) years following the termination of such employment for any reason
whatsoever, 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 performace of his duties hereunder
unless (a) any such information becomes generally available to the public other
than as a result of disclosure by Employee, and/or (b) Employee is requested or
required (by oral question, interrogatories, requests for information or
documents, subpeona, 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, (ii) cooperate with the Company, at its expense,
in seeking such an order. Upon termination of this Employement Agreement,
Employee shall promptly deliver to the Company all confidential information of
the Company or any of its subsidiaries.
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6.NONSOLICITATION OF EMPLOYEES.
During the term of this Employment Agreement and for a period of two (2)
years following the Date of Termination of this Employment Agreement for any
reason whatsover, Employee will not, either directly or indirectly, on the
Employee's own behalf on behalf of others, solicit, divert or hire, any person
under contract with (directly and/or indirectly) and/or employed by, the Company
at any location where the Employee performed services for the Corporation or any
person with whom the Employee had regular contact in the course of his
employment by the Company, whether or not the contract with or employment of any
such person is pursuant to a written agreement, for a determined period or at
will.
7. NONSOLICITATION OF CUSTOMERS.
During the term of this Employment Agreement and for a period of two (2)
years following the Date of Termination of this Employment Agreeement for any
reason whatsoever, Employee will not (except on behalf of or with the
prior written consent of the Corporation), either directly or indirectly, on the
Employee's own behalf or on behalf of others: solicit, divert, appropriate to,
or accept on behalf of any business which competes with, or is substantially the
same as, the business conducted by or contemplated by the Company or any of its
subsidiaries during the term of this Employment Agreement, any business from any
customer or actively sought prespective customer of the Company with whom the
Employee has had regular contact, and/or whose contacts with the Company have
been supervised by the Employee.
8. EQUITABLE RELIEF.
Employee: (i) acknowledges that any breach or attempted breach of the
provisions of any of Sections 6, 7, or 8 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 injuctive 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 injuctive 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, and such court of competent jurisdiction is so authorized by
state or common law, such term, provision, convenant 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 notices or other
communication permitted or 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.
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11. SEVERABILITY.
If any term, provision, convenant 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, convenants 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/ Xxx Xxxxxxxxx /s/ Xxxxxxx X. Xxxxx
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Xxx Xxxxxxxxx
WITNESS: DELSOFT CONSULTING, INC.
/s/ Xxx Xxxxxxxxx /s/ Xxxxx Xxxx
--------------------- -------------------------
Xxx Xxxxxxxxx Xxxxx Xxxx
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EXHIBIT "A"
DELSOFT CONSULTING, INC. STOCK OPTION
A. A STOCK OPTION for a total of two million (2,000,000) shares of Common
Stock, no par value, of Delsoft Consulting, Inc., a Georgia corporation (herein
the "Company") is hereby granted to XXXXX XXXX (herein the "Optionee"), subject
in all respects to the terms and provisions of the Delsoft Consulting, Inc.
Stock Option Plan (herein the "Plan"), effective May 1, 1997, which has been
adopted by the Company and which is incorporated herein by reference.
B. The option price is one hundred and ten percent of the fair market
value on the date of grant.
C. This Option may only be exercised as follows:
(i) up to 200,000 shares immediately;
(ii) up to 800,000 shares on or after September 19, 2000;
(iii) up to 1,400,000 shares on or after September 19, 2001; and
(iv) up to 2,000,000 shares on or after September 19, 2002.
D. This Option may not be exercised if the issuance of shares of Common
Stock of the Company upon such exercise would constitute a violation of any
applicable Federal or State securities or other law or valid regulation. The
Optionee, as a condition to his exercise of this Option, shall represent to the
Company that the shares of Common Stock of the Company that he acquires under
this Option are being acquired by him for investment and not with a present view
to distribution or resale, unless counsel for the Company is then of the opinion
that such a representation is not required under the Securities Act of 1933 or
any other applicable law, regulation, or rule of any governmental agency.
E. This Option may not be transferred in any manner otherwise than by
will or the laws of descent and distribution, and may be exercised during the
lifetime of the Optionee only by him. The terms of this Option shall be binding
upon the executors, administrators, heirs, successors, and assigns of the
Optionee.
F. This Option may not be exercised more than ten (10) years from the date
of its grant, and may be exercised during such term only in accordance with the
terms of the Plan.
Dated: October 28, 1999
Delsoft Consulting, Inc.
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Xxxxxxx X. Xxxxx, CFO
ATTEST:
/s/ Xxx Xxxxxxxxx
---------------------
Xxx Xxxxxxxxx
The Optionee acknowledges receipt of a copy of the Plan, a copy of which
is annexed hereto, and represents that he is familiar with the terms and
provisions of the Plan. The Optionee hereby agrees to accept as binding,
conclusive, and final all decisions and interpretations of the Board of
Directors and, when applicable, the Stock Option Plan Committee, upon any
questions arising under the Plan. As a condition to the issuance of shares of
Common Stock of the Company under this Option, the Optionee authorizes the
Company to withhold in accordance with applicable law from any regular cash
compensation payable to him any taxes required to be withheld by the Company
under Federal, State, or Local law as a result of his exercise of this Option.
Dated: , 1999
By: /s/ Xxxxx Xxxx
---------------------------------
Optionee
