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EXHIBIT 10.16
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of January, 1996, between S
Consulting, Inc. a Georgia corporation (the "Company"), and Xxxxxxx X. Xxxxxxx,
Xx. (the "Executive").
INTRODUCTION
The Company and the Executive desire to enter into an employment
agreement embodying the terms and conditions of Executive's employment.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS
(a) "Affiliate" means any person, firm, corporation, partnership,
association or entity that, directly or indirectly or through one or more
intermediaries, controls, is controlled by or is under common control with the
Company.
(b) "Applicable Period" means the period of the Executive's employment
hereunder and for one (1) year after termination of his employment with the
Company; and provided, the Applicable Period shall continue for so long as
Executive receives annual base salary hereunder pursuant to Section 4(e), or
4(g), and shall continue for three (3) years after termination of employment if
the Executive receives payment under Section 4(f); and provided further in the
case of a termination not governed by Section 4(f) by the Executive for Good
Reason or by the Company without Cause, or in the case of a non-renewal of this
Agreement at the end of the original term or any extended term, the Applicable
Period shall not extend beyond the period during which the Executive receives
annual base salary.
(c) "Area" means the United States excluding Wyoming, South Dakota and
Montana.
(d) "Business of the Company" means any business that involves the
marketing, sale or performance of administrative, consulting, management or
information systems outsourcing services to Medicare certified and other home
healthcare agencies (including but not limited to hospital-based and hospital
affiliated home health organizations, visiting nurse associations, health
departments, Health Maintenance Organizations, proprietary organizations and
claim organizations), hospitals, nursing homes, ambulatory facilities,
long-term care providers and other health-care related providers of health care
products and services, and management companies in the business of providing
support or management services to any such providers.
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(e) "Cause" the occurrence of any of the following events: (i) willful
and continued failure (other than such failure resulting from his incapacity
during temporary physical or mental illness) by the Executive to substantially
perform his duties with the Company or an Affiliate; (ii) any act by the
Executive of fraud, misappropriation, dishonesty, embezzlement or similar
conduct against the Company or an Affiliate; (iii) conviction of the Executive
for a felony or any other crime involving moral turpitude pertaining to the
Business; or (iv) the habitual and disabling use by the Executive of alcohol or
drugs; or (v) a violation by the Executive of the provisions of Section 5, 6 or
7 of this Agreement.
(f) "Change in Control" means the consummation of (i) a merger,
consolidation, share exchange, combination, reorganization, or like transaction
involving the Company in which the shareholders of the Company immediately
prior to such transaction do not own at least fifty percent (50%) of the value
or voting power of the issued and outstanding capital stock of the Company or
its successor immediately after such transaction, (ii) the sale or transfer
(other than as security for the Company's obligations) of more than fifty
percent (50%) of the assets of the Company in any transaction, a series of
related transactions, or a series of transactions occurring within a one (1)
year period, (iii) except as a result of a Public Offering, the sale or
transfer of fifty percent (50%) or more of the value or voting power of the
issued and outstanding capital stock of the Company by the holders thereof in a
single transaction, a series of related transactions, or a series of
transactions occurring within a one (1) year period, or (iv) the dissolution or
liquidation of the Company.
(g) "Company Invention" means any Invention which is conceived by the
Executive alone or in a joint effort with others during the period of the
Executive's employment hereunder which (i) may be reasonably expected to be
used in a product of the Company, or a product similar to a Company product,
(ii) results from work that the Executive has been assigned as part of his
duties as an employee of the Company, (iii) is in an area of technology which
is the same or substantially related to the areas of technology with which the
Executive is involved in the performance of his duties as an employee of the
Company, or (iv) is useful, or which the Executive reasonably expects may be
useful, in any manufacturing or product design process of the Company.
Provided, the term "Company Invention" does not include any invention unrelated
to the Business of the Company.
(h) "Competing Business" means any person, firm, corporation, joint
venture or other business entity which is engaged in the Business of the
Company (or any aspect thereof) within the Area.
(i) "Confidential Information" means data and information relating to
the business of the Company (which does not rise to the status of a Trade
Secret) which is or has been disclosed to the Executive or of which the
Executive became aware as a consequence of or through its relationship to the
Company and which has value to the Company and is not generally known to its
competitors. Confidential Information shall not include any data or information
that has been voluntarily disclosed to the public by the Company (except where
such public disclosure has been made by the Executive without authorization) or
that has been independently developed and disclosed by others, or that
otherwise enters the public domain through lawful means. The provisions in this
Agreement restricting the use of Confidential Information shall survive for a
period of two (2) years following termination of this Agreement.
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(j) "Disability" means a disability of the Executive within the
meaning of Section 72(m)(7) of the Internal Revenue Code; that is, the
Executive is unable to engage in any substantial gainful activity with the
Committee or any other employer, by reason of any medically determinable
physical or mental impairment which can be expected to result in death or to be
of long continued and indefinite duration. If the Executive claims to have a
Disability, he shall submit to the Company a written request for Disability
status together with medical evidence from a licensed physician identifying the
existence of a Disability within the meaning of this definition. The Company
may then elect to have the Executive submit to an examination by a licensed
physician selected by the Company. In the event of a difference of opinion
between the physicians, the final determination as to whether the Executive is
subject to a Disability shall be made by a reasonable mutually agreeable
independent physician consistent with the requirements set forth in the
Company's disability policy.
(k) "Good Reason" means the occurrence of any of the following events:
(i) the nature of the Executive's duties or the scope of his responsibilities
are materially modified without the Executive's written consent, or (ii) the
Company changes the location of the Executive's place of employment to more
than thirty miles from its present location without the prior consent of the
Executive.
(l) "Invention" means any discovery, whether or not patentable,
including, but not limited to, any useful process, method, formula, technique,
machine, manufacture, composition of matter, algorithm or computer program, as
well as improvements thereto, which is new or which the Executive has a
reasonable basis to believe may be new.
(m) "Public Offering" means the offering or sale by the Company of
equity securities pursuant to a registration statement filed in accordance with
the Securities Act of 1933, as amended, or any comparable law then in effect,
and the effective date of any such Public Offering shall be the first day on
which the securities covered thereby may lawfully be offered and sold pursuant
to such registration statement.
(n) "Trade Secrets" means information relating to the Business of the
Company including, but not limited to, technical or nontechnical data,
formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product plans or lists of
actual or potential customers or suppliers which (i) derives economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. The provisions in
this Agreement restricting the use of Trade Secrets shall survive termination
of this Agreement for so long as is permitted by the Georgia Trade Secrets Act
of 1990, O.C.G.A. xx.xx. 10-1-760-10-1-767.
(o) "Work" means a copyrightable work of authorship relating to the
Business of the Company, including without limitation, any technical
descriptions for products, user's guides, illustrations, advertising materials,
computer programs (including the contents of read only memories) and any
contribution to such materials.
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2. TERMS AND CONDITIONS OF EMPLOYMENT.
(a) Employment. The Company hereby employs the Executive as its
President and the Executive accepts such employment with the Company in such
capacity subject to the terms and conditions hereof. The Executive shall report
to the Chief Executive Officer of the Company and shall have such authority and
responsibilities and perform such duties as shall reasonably be assigned to the
Executive from time to time by the Chief Executive Officer of the Company.
(b) Exclusivity. Throughout the Executive's employment hereunder, the
Executive shall devote substantially all the Executive's time, energy and skill
during regular business hours to the performance of the duties of the
Executive's employment (vacations and reasonable absences due to illness
excepted), shall faithfully and industriously perform such duties, and shall
diligently follow and implement all management policies and decisions of the
Company. Provided, the Executive may engage in other business activities that
are unrelated to the Business of the Company and that does not impact upon or
adversely affect the Business of the Company or the Executive's performance of
duties hereunder.
3. COMPENSATION.
(a) Base Salary. In consideration for the Executive's services
hereunder, the Company shall pay to the Executive an annual base salary in the
amount of $300,000 for the first full twelve calendar months of the Term.
Executive's annual base salary shall be reviewed at least annually by the
Company's Board of Directors. The Company shall pay annual base salary in
accordance with the normal payroll payment practices of the Company and subject
to such deductions and withholdings as law or policies of the Company, from
time to time in effect, require.
(b) Bonus. In addition to the annual base salary payable under Section
3(a) hereof, the Executive shall be entitled to bonuses determined by the Board
of Directors of the Company in accordance with an operating budget or other
specific bonus criteria adopted by the Board of Directors of the Company for
purposes of bonus calculations.
(c) Vacation. The Executive shall be entitled to such vacation and
time off with pay as generally may be available to executive employees of the
Company from time to time.
(d) Benefits. In addition to the annual base salary, bonus, and other
benefits payable to the Executive hereunder as listed on Exhibit A hereto and
made a part hereof, the Executive shall be entitled to such benefits as
generally may be made available to executive employees of the Company from time
to time; provided, however, that nothing contained herein shall require the
establishment or continuation of any particular plan or program.
(e) Expenses. The Executive shall be entitled to be reimbursed in
accordance with the policies of the Company, as adopted and amended from time
to time, for all reasonable and necessary expenses incurred by the Executive in
connection with the performance of the Executive's duties of employment
hereunder; provided, however, the Executive shall, as a condition of such
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reimbursement, submit verification of the nature and amount of such expenses in
accordance with the reimbursement policies from time to time adopted by the
Company.
4. TERM, TERMINATION AND TERMINATION PAYMENTS.
(a) Term. The term of this Agreement (the "Term") shall commence as of
the date of this Agreement (the "Commencement Date") and shall expire, unless
terminated earlier in accordance with Section 4(b), on the fifth anniversary of
the Commencement Date, and will extend thereafter for additional terms of one
year each, unless either party gives the other written notice sixty (60) days
before the end of a term. Before the end of the Term, the Company and the
Executive will discuss whether they mutually desire to renew or extend this
Agreement.
(b) Termination. This Agreement and the Executive's employment by the
Company hereunder may only be terminated (i) by mutual agreement of the
Executive and the Company; (ii) by the Executive without Good Reason upon not
less than three (3) months prior notice to the Company; (iii) by the Executive
with Good Reason upon not less than two (2) weeks prior notice to the Company;
provided however that the Executive shall first give the Company written notice
of any facts or circumstances upon which such termination with "Good Reason" is
based and the Company shall thereafter have thirty (30) days to cure, or to
begin a cure if completing a cure within thirty (30) days is not feasible and a
plan acceptable to the Executive is submitted by the Company; (iv) by the
Company without Cause; or (v) by the Company for Cause, provided however that
the Company shall first give the Executive written notice of any facts or
circumstances upon which such termination with Cause is based and the Executive
shall thereafter have thirty (30) days to cure, or to begin a cure if
completing a cure within thirty (30) days is not feasible, and a plan
acceptable to the Company is submitted by the Executive. This Agreement shall
also terminate immediately upon the death or the Disability of the Executive.
Notice of termination by either the Company or the Executive shall be given in
writing and shall specify the basis for termination and the effective date of
termination.
(c) Effect of Termination. Upon termination of this Agreement and the
Executive's employment hereunder, the Company shall have no further obligation
to the Executive or the Executive's estate with respect to this Agreement,
except for payment of salary and provision of benefits, if any, accrued
pursuant to Section 3(a) or 3(b) hereof and unpaid at the Termination Date, and
termination payments, if any, set forth in Section 4(e), 4(f), or 4(g) hereof,
as applicable, subject to the provisions of Section 12 hereof. Nothing
contained herein shall limit or impinge any other rights or remedies of the
Company or the Executive under any other agreement or plan to which the
Executive is a party or of which the Executive is a beneficiary.
(d) Survival. The covenants of the Executive in Sections 5, 6, 7, 8
and 9 hereof shall survive the termination of this Agreement and the
Executive's employment hereunder and shall not be extinguished thereby.
(e) Certain Terminations not in Connection with a Change in Control.
Except as set forth in Section 4(b)(i) hereof, upon termination of the
Executive's employment, more than six (6) months preceding or more than two (2)
years after a Change in Control, by the Company without Cause or
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by Executive for Good Reason, the Company shall be obligated, in consideration
of the covenants of the Executive in Section 5, 6 and 7 hereof, to continue to
pay the Executive his annual base salary at the time of termination of
employment for the remaining original Term of this Agreement; provided,
however, that if such termination occurs on or within one year before a Change
in Control, the aggregate amount payable shall not exceed the largest amount
that could be paid to the Executive under Section 280G of the Internal Revenue
Code, which when combined with all other " payments in the nature of
compensation" (within the meaning of Section 280G) received by Executive, will
not result in a "parachute payment" (within the meaning of such Section 280G),
determined without regard to Section 280G(b)(5) thereof.
(f) Certain Terminations in Connection with a Change in Control.
Except as set forth in Section 4(b)(i) hereof, upon termination of Executive's
employment, within six (6) months preceding or within two (2) years after a
Change in Control, by the Company without Cause or by Executive for Good
Reason, the Company shall be obligated in consideration of the covenants of the
Executive in Section 5, 6 and 7 hereof, to pay the Executive a lump sum in cash
immediately upon such termination equal to (i) the lessor of three times his
average annual W-2 compensation for the five year period preceding the date on
which the Change in Control occurs (or such shorter period of employment), or
(ii) the largest amount that could be paid to the Executive under Section 280G
of the Internal Revenue Code, which when combined with all other "payments in
the nature of compensation" (within the meaning of such Section 280G) received
by Executive, will not result in a "parachute payment" (within the meaning of
such Section 280G), determined without regard to Section 280G(b)(5) thereof.
(g) Payments Upon Disability. If the Executive's employment under this
Agreement should be terminated because of the Disability of the Executive, the
Company shall be obligated to continue to pay the Executive his annual base
salary for the remaining Term of this Agreement, but only in an amount in
excess of the proceeds available to the Executive from one or more disability
insurance policies or plans, if any, with respect to which the Company has paid
the premiums.
5. AGREEMENT NOT TO COMPETE.
(a) The Executive agrees that commencing on the Commencement Date and
continuing through the Applicable Period he will not (except on behalf of or
with the prior written consent of the Company, which consent may be withheld in
Company's sole discretion), within the Area, either directly or indirectly, on
the Executive's own behalf, or in the service of or on behalf of others, engage
in a Competing Business or provide managerial, supervisory, buying, sales,
marketing, financial, administrative or consulting services or assistance
(collectively "Prohibited Services") to, or own (other than ownership of less
than five percent of the outstanding voting securities of an entity whose
voting securities are traded on a national securities exchange or quoted on the
National Association of Securities Dealers, Inc. Automated Quotation System) a
beneficial interest in any Competing Business. For purposes of this Section 5,
the Executive acknowledges and agrees that the Business of the Company is
conducted in the Area. Provided, notwithstanding anything to the contrary in
the Asset Purchase Agreement which is executed in connection herewith and to
which this Executive Employment Agreement is ancillary, in the event this
noncompetition restriction in
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this Section 5(a) terminates, then the Agreement Not to Compete in Section 5.01
of the Asset Purchase Agreement as it applies to the Executive shall likewise
terminate.
(b) The parties further agree that Executive's performance of duties
hereunder shall not constitute any breach of any agreement not to compete,
agreement not to solicit employees and agreement not to solicit customers
contained herein or in the Asset Purchase Agreement which is executed in
connection herewith, and to which this Executive Employment Agreement is
ancillary.
(c) The Executive agrees that commencing on the Commencement Date and
continuing through the Applicable Period, he will not, either directly or
indirectly, on the Executive's own behalf or in the service of or on behalf of
others, solicit or divert, or attempt to solicit or divert, for the purpose of
providing the Prohibited Services, any individual or entity which was an actual
or actively sought prospective client or customer of the Company or an
Affiliate and with whom the Executive had direct or indirect contact as part of
his employment during the Executive's last year of employment with the Company.
For purposes of this Section 5(c), the Executive acknowledges and agrees that
he is engaged in performing services under this Agreement related to actual and
actively sought prospective clients or customers.
6. AGREEMENT NOT TO SOLICIT EMPLOYEES.
The Executive agrees that commencing on the Commencement Date and
continuing through the Applicable Period, he will not, either directly or
indirectly, on the Executive's own behalf or in the service of or on behalf of
others, solicit, divert or hire, or attempt to solicit, divert or hire, any
person employed by the Company or an Affiliate, whether or not such employee is
a full-time employee or a temporary employee of the Company or an Affiliate and
whether or not such employment is pursuant to written agreement and whether or
not such employment is for a determined period or is at will.
7. OWNERSHIP AND PROTECTION OF PROPRIETARY INFORMATION.
(a) Confidentiality. All Confidential Information and Trade Secrets
and all physical embodiments thereof received or developed by the Executive
while employed by the Company are confidential to and are and will remain the
sole and exclusive property of the Company. Except to the extent necessary to
perform the duties assigned to him by the Company, the Executive will hold such
Confidential Information and Trade Secrets in trust and strictest confidence,
and will not use, reproduce, distribute, disclose or otherwise disseminate the
Confidential Information and Trade Secrets or any physical embodiments thereof
and may in no event take any action causing or fail to take the action
necessary in order to prevent, any Confidential Information and Trade Secrets
disclosed to or developed by the Executive to lose its character or cease to
qualify as Confidential Information or Trade Secrets.
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(b) Return of Company Property. Upon request by the Company, and in
any event upon termination of the employment of the Executive with the Company
for any reason, as a prior condition to receiving any final compensation
hereunder (including any payments pursuant to Section 4(e) hereof), the
Executive will promptly deliver to the Company all property belonging to the
Company, including, without limitation, all Confidential Information and Trade
Secrets (and all embodiments thereof) then in the Executive's custody, control
or possession.
(c) Survival. The covenants of confidentiality set forth herein will
apply on and after the date hereof to any Confidential Information and Trade
Secrets disclosed by the Company or developed by the Executive prior to or
after the date hereof. These covenants restricting use of Confidential
Information will continue and be maintained by the Executive for a period of
two (2) years following the termination of this Agreement. The covenants
restricting the use of Trade Secrets will continue and be maintained by the
Executive following termination of this Agreement for so long as permitted by
the Georgia Trade Secret Act of 1990, O.C.G.A. 10-1-760 through 10-1-767.
8. Inventions.
(a) Company Inventions. The Executive agrees that all Company
Inventions conceived or first reduced to practice by the Executive during the
Term of this Agreement, and all patent rights and copyrights to such Company
Inventions shall become and remain the property of the Company, and the
Executive hereby irrevocably assigns to the Company all of his rights to all
Company Inventions. If the Executive conceives an Invention during the Term of
this Agreement for which there is a reasonable basis to believe that the
conceived Invention is a Company Invention, the Executive shall promptly
provide a written description of the conceived Invention to the Company
adequate to allow evaluation thereof for a determination by the Company as to
whether the Invention is a Company Invention. Notwithstanding the foregoing,
the provisions of this Section 8(a) shall not apply to any Invention that the
Executive may develop without using the Company's equipment, supplies,
facilities, or trade secret information, except for any Inventions that either
(i) relate at the time of conception or reduction to practice of the Invention
to the Business of the Company, or to actual or demonstrably anticipated
research or development of the Company; or (ii) result from any work performed
by the Executive for the Company.
(b) Prior Inventions. If prior to the Commencement Date the Executive
conceived any Invention or acquired any ownership interest in any Invention
which (i) is the property of the Executive, or of which the Executive is a
joint owner with another person or entity, (ii) is not described in any issued
patent as of the Commencement Date, and (iii) would be a Company Invention if
such Invention were made during the Term of this Agreement, then (A) with
respect to any such Invention described in Exhibit A attached hereto, the
Executive hereby agrees that such written description (but no rights to the
Invention) is and shall remain the property of the Company and (B) with respect
to any such Invention not described in Exhibit A attached hereto, the Executive
hereby grants to the Company a nonexclusive, paid up, royalty-free license to
use and practice such Invention, including a license under all patents to issue
in any country which pertain to such Invention.
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(c) Prior Patents. The Executive represents to the Company that the
Executive owns no patents or copyrights, individually or jointly with others,
except those described in Exhibit A attached hereto.
(d) Patent Applications. The Executive agrees that should the Company
elect to file an application for patent protection, either in the United States
or in any foreign country, on a Company Invention of which the Executive was an
inventor, the Executive will execute all necessary truthful papers, including
formal assignments to the Company relating to such patent applications. The
Executive further agrees to cooperate with any attorneys or other persons
designated by the Company by explaining the nature of any Company Invention for
which the Company elects to file an application for patent protection,
reviewing applications and other papers and providing any other cooperation
reasonably required for orderly prosecution of such patent applications. The
Company shall be responsible for all expenses incurred for the preparation and
prosecution of all patent applications on Company Inventions filed by the
Company.
9. COPYRIGHTS.
(a) Ownership and Assignment. The Executive acknowledges and agrees
that any Works created by the Executive in the course of his employment
hereunder are subject to the "Work for Hire" provisions contained in Sections
101 and 201 of the United States Copyright Law, Title 17 of the United States
Code, and that all right, title and interest to copyrights in all Works which
have been or will be prepared by the Executive within the scope of his
employment hereunder shall be the property of the Company. The Executive
further acknowledges and agrees that, to the extent the provisions of Title 17
of the United States Code do not vest in the Company the copyrights to any
Works, the Executive will assign and hereby does assign to the Company all
right, title and interest to copyrights which the Executive may have in such
Works.
(b) Registration. The Executive agrees to disclose to the Company all
Works referred to in the immediately preceding paragraph and execute and
deliver all applications for registration, registrations, and other documents
relating to the copyrights to the Works and provide such additional assistance,
as the Company may deem necessary and desirable to secure the Company's title
to the copyrights in the Works. The Company shall be responsible for all
expenses incurred in connection with the registration of all such copyrights.
(c) Prior Works. The Executive claims no ownership rights in any Works,
except as described in Exhibit A attached hereto.
10. CONTRACTS OR OTHER AGREEMENTS WITH FORMER EMPLOYER OR BUSINESS.
The Executive hereby represents and warrants that it is not subject to
any employment agreement or similar document, except as previously disclosed
and delivered to the Company, with a former employer or any business with which
the Executive has been associated, which on its face prohibits the Executive
during a period of time which extends through the Commencement Date from any of
the following: (i) competing with, or in any way participating in a business
which competes
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with the Executive's former employer or business; (ii) soliciting personnel of
such former employer or business to leave such former employer's employment or
to leave such business; or (iii) soliciting customers of such former employer
or business on behalf of another business. The Executive hereby further
represents and warrants that he has not executed any agreement with any other
party which, on its face, purports to require the Executive to assign any Work
or any Invention created, conceived or first reduced to practice by the
Executive during a period of time which extends through the Commencement Date
except as previously disclosed in writing to the Company.
11. SEVERABILITY, ETC.
The Executive agrees that the covenants and agreements contained in
Sections 5, 6, 7, 8 and 9 hereof are of the essence of this Agreement; that
each of such covenants is reasonable and necessary to protect and preserve the
interests and properties of the Company and the Business of the Company; that
the Company is engaged in and throughout the Area in the Business of the
Company; that irreparable loss and damage will be suffered by the Company
should the Executive breach any of such covenants and agreements; that each of
such covenants and agreements is separate, distinct and severable not only from
the other of such covenants and agreements but also from the other and
remaining provisions of this Agreement; that the unenforceability of any such
covenant or agreement shall not affect the validity or enforceability of any
other such covenant or agreements or any other provision or provisions of this
Agreement; and that, in addition to other remedies available to it, the Company
shall be entitled to specific performance of this Agreement and to both
temporary and permanent injunctions to prevent a breach or contemplated breach
by the Executive of any of such covenants or agreements.
12. NO SET-OFF.
The existence of any claim, demand, action or cause of action by the
Executive against the Company, or any Affiliate of the Company, whether
predicated upon this Agreement or otherwise, shall not constitute a defense to
the enforcement by the Company of any of its rights hereunder. The existence of
any claim, demand, action or cause of action by the Company against the
Executive, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Executive of any of his rights
hereunder.
13. NOTICE.
All notices, requests, demands and other communications required
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or if mailed, by United States certified or registered mail, prepaid
to the party to which the same is directed at the following addresses (or at
such other addresses as shall be given in writing by the parties to one
another):
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If to the Company: S Consulting, Inc.
0000 Xxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Chief Executive Officer
If to the Executive: Xxxxxxx X. Xxxxxxx, Xx.
000 Xxxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Notices delivered in person shall be effective on the date of delivery. Notices
delivered by mail as aforesaid shall be effective upon the third calendar day
subsequent to the postmark date hereof.
14. MISCELLANEOUS.
(a) Assignment. Neither this Agreement nor any right of the parties
hereunder may be assigned or delegated by any party hereto without the prior
written consent of the other party.
(b) Waiver. The waiver by the Company of any breach of this Agreement
by the Executive shall not be effective unless in writing, and no such waiver
shall constitute the waiver of the same or another breach on a subsequent
occasion.
(c) Jurisdiction. Any action to enforce any provision of this
Agreement shall be brought only in a Federal or State Court located in the
State of Georgia, and all parties hereto consent to and shall not contest
jurisdiction in Georgia.
(d) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Georgia.
(e) Entire Agreement. This Agreement embodies the entire agreement of
the parties hereto relating to the subject matter hereof and supersedes all
oral agreements, and to the extent inconsistent with the terms hereof, all
other written agreements.
(f) Amendment. This Agreement may not be modified, amended,
supplemented or terminated except by a written instrument executed by the
parties hereto.
(g) Severability. Each of the covenants and agreements hereinabove
contained shall be deemed separate, severable and independent covenants, and in
the event that any covenant shall be declared invalid by any court of competent
jurisdiction, such invalidity shall not in any manner affect or impair the
validity or enforceability of any other part or provision of such covenant or
of any other covenant contained herein.
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(h) Captions and Section Headings. Except as set forth in Section 1
hereof, captions and section headings used herein are for convenience only and
are not a part of this Agreement and shall not be used in construing it.
IN WITNESS WHEREOF, the Company and the Executive have each executed
and delivered this Agreement as of the date first shown above.
COMPANY:
S CONSULTING, INC.
By:/s/ Xxxx X. Xxxxxx
--------------------------
Xxxx X. Xxxxxx
Title: Chief Executive Officer
[CORPORATE SEAL]
EXECUTIVE:
/s/Xxxxxxx X. Xxxxxx, Xx.
--------------------------
Xxxxxxx X. Xxxxxxx, Xx.
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EXHIBIT A
INVENTIONS, PATENTS AND COPYRIGHTS
1. PREVIOUSLY CONCEIVED INVENTIONS
[DESCRIBE ANY INVENTIONS WHICH THE EXECUTIVE DEVELOPED OR HAS AN
OWNERSHIP INTEREST IN. IF NONE, INSERT "NONE". NOTE: With respect to
any such Inventions not described herein, the Company shall have a
nonexclusive, paid up, royalty-free license to use and practice such
Invention, including a license under all patents to issue in any
country which pertain to such Invention.]
None
2. PATENTS
[LIST OR DESCRIBE ALL PATENTS WHICH THE EXECUTIVE OWNS INDIVIDUALLY,
WITH OTHERS, OR FOR WHICH APPLICATIONS ARE PENDING. IF NONE, INSERT
"NONE".]
None
3. COPYRIGHTS
[DESCRIBE ANY WORKS FOR WHICH THE EXECUTIVE CLAIMS THE COPYRIGHT EITHER
INDIVIDUALLY OR WITH OTHERS. IF NONE, INSERT "NONE".]
None
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