AMENDED EMPLOYMENT AGREEMENT
THIS AMENDED EMPLOYMENT AGREEMENT is being entered into as of this 19th day
of November, 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 XXXX XXXXXXX, residing at 000 Xxxxx Xxx
Xxxx, Xxxx xx Xxxxxxxxxx, Xxxxx of Georgia, (hereinafter called the "Employee").
1. POSITION; DUTIES.
Employee shall serve as Executive Vice President 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 Executive Vice 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 Amended Employment Agreement shall begin as of December 1,
1999, and terminate as of the close of business on November 30, 2002. On
December 1, 2002, and on each anniversary thereof, the term of this Amended
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 Amended Employment Agreement. The term of this
Amended Employment Agreement shall automatically terminate upon any termination
of this Amended Employment Agreement pursuant to Section 4.
3. COMPENSATION AND BENEFITS.
a. Base Salary. Employee's salary shall not be less than $142,000 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 continue to 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 the fair market
value of the Company stock on the calendar date Employee was granted such
option.
In addition, Employee shall immediately receive an option, in substantially
the form attached hereto as Schedule B, to purchase two million four hundred
thousand (2,400,000) shares of Company stock at a price equal to 110% of the
fair market value of the Company stock on the calendar date Employee is granted
such option.
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.
4. Termination.
a. Death. This Amended 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 Amended 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 Amended Employment Agreement by a
90-day written notice to the Company at any time.
d. Election not to extend. If the Company elects not to extend the term of
this Amended 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 Amended
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 temination; or (iii) in the case of the Company's
election not to extend the term of this Amended Employment Agreement pursuant to
Section 2, the last date of the term of this Amended Employment Agreement. Upon
any termination of this Amended Employment Agreement pursuant to this Section 4
or election not to extend the term of this Amended Employment Agreement pursuant
to Section 2, Employee shall not be entitled to any further payments or benefits
of any nature pursuant to this Amended Employment Agreement, or as a result of
such termination or election, except as specifically provided for in this
Amended Employment Agreement. Sections 5, 6, 7, 8, and 9 (and to the extent
applicable thereto, Sections 10, 11, 12, and 13) shall survive any termination
of this Amended Employment Agreement pursuant to this Section 4 or election not
to extend the term of this Amended Employment Agreement pursuant to Section 2.
5. CONFIDENTIALITY.
During the term of this Amended Employment 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 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, and/or (b) Employee is requested or
required (by oral question, interrogatories, requests for 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 Amended Employment
Agreement, Employee shall promptly deliver to the Company all confidential
information of the Company or any of its subsidiaries.
6. NONCOMPETITION.
During the term of this Amended Employment Agreement and for a period of
two (2) years following the termination of such employment for any reason
whatsoever, the 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, 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 Amended 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 OF EMPLOYEES.
During the term of this Amended Employment Agreement and for a period of
two (2) years following the Date of Termination of this Amended Employment
Agreement for any reason whatsoever, Employee will not, either directly or
indirectly, on the Employee's own behalf or on behalf of others, solicit, divert
or hire, any person 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 employment of any such person is pursuant to a written agreement, for a
determined period or at will.
8. NONSOLICITATION OF CUSTOMERS.
During the term of this Amended Employment Agreement and for a period of
two (2) years following the Date of Termination of this Amended Employment
Agreement 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, (1) 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 Amended
Employment Agreement, any business from any customer or actively sought
prospective 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.
9. EQUITABLE RELIEF.
Employee: (i) acknowledges that any breach or attempted breach of the
provisions of any of Sections 5, 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 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, covenant or restriction in Sections 5, 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, covenant or restriction shall be
deemed amended to the extent required to render it valid, binding and
enforceable.
10. SUCCESSORS, AMENDMENT; NOTICE.
This Amended Employment Agreement shall be binding upon and shall inure to
the benefit of the Company and its successors and assigns. This Amended
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 Amended 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 Amended
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 Amended Employment Agreement, or such other
address as shall be furnished in writing by Employee or the Company to the
other.
11. ENTIRE AGREEMENT.
This Amended Employment Agreement embodies the entire agreement and
understanding between Employee and the Company with respect to the subject
matter hereof and expressly supersedes the Employment Agreement between Employee
and the Company dated July 1, 1996.
12. SEVERABILITY.
If any term, provision, covenant or restriction of this Amended 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 Amended Employment Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
13. GOVERNING LAW.
This Amended 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:
/s/ Xxx Xxxxxxxxx /s/ Xxxx Xxxxxxx
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Xxx Xxxxxxxxx Xxxx Xxxxxxx
EXHIBIT "A"
DELSOFT CONSULTING, INC. STOCK OPTION
A. A STOCK OPTION for a total of two million four hundred thousand
(2,400,000) shares of Common Stock, no par value, of Delsoft Consulting, Inc., a
Georgia corporation (herein the "Company") is hereby granted to XXXX XXXXXXX
(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 be exercised immediately,
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: November 19, 1999
Delsoft Consulting, Inc.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, CFO
ATTEST:
/s/ Xxx Xxxxxxxxx
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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, where
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:
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Optionee
