EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is being entered into as of
July 1st, 1996, by and between DELSOFT CONSULTING, INC., a
Georgia corporation with principal offices at 000 Xxx Xxxxxx
Xxxxx, Xxxxx X-0, Xxxxxxx, Xxxxxxx 00000 (hereinafter called the
"Company"), and XXXX XXXXXXX, residing at 0000 Xxxxxxxxxx Xxxx,
Xxxxxx of Xxxxxx, City of Alpharetta 30202, (hereinafter called
the "Employee").
1. POSITION; DUTIES.
Employee shall serve as Vice President of Sales 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
Vice President of Sales 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 the
date hereof and terminate as of the close of business on June 30,
2001. On July 1, 2001, and on each anniversary thereof, the term
of this 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 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 be $60,000
per year. Effective January 1, 1997, Employee's base salary
shall not be less than $95,000 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 will further be entitled to the
additional sum of $500.00 for any month in which the hours billed
by the Company equal or exceed fifteen thousand (15,000) hours.
Payment, if any, shall be made in cash on the 15th day of each
month based on the total hours billed in the preceding month.
The additional sum of $500.00 shall be further increased in
increments of $250.00 for each increase of five thousand (5,000)
hours billed by the Company in any month (e.g., Employee will be
entitled to the additional sum of $750.00 for any month in which
the hours billed by the Company equal or exceed twenty thousand
(20,000) hours, the additional sum of $1,000.00 for any month in
which the hours billed by the Company equal or exceed twenty five
thousand (25,000) hours, etc.).
Employee will also participate in the Company Executive
Incentive Compensation Program which provides payout opportunity
to a maximum of 80 percent of base salary. Payout opportunities
under this plan will be measured on specific goals agreed upon
with the Board of Directors of the Company.
(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) 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.
(e) BUSINESS EXPENSES. Employee shall be entitled to
reimbursement of up to three hundred ($300.00) dollars per month
for all reasonable marketing, advertising, and/or entertainment
expenses incurred in the performance of his duties hereunder.
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 90-day written notice to the Company at any time.
If Employee, however, elects to terminate this Employment
Agreement during its initial terms, 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 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 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 5, 6, 7, and 8 (and to the extent applicable thereto,
Sections 9, 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 Employment Agreement and thereafter,
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; (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 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 Employment Agreement, 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 the Company or
any of its subsidiaries in any line of business conducted or
contemplated during the term of this 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.
During the term of this Employment Agreement and for a
period of eighteen (18) months following the Date of Termination
of this Employment Agreement, Employee will not entice or in any
other manner persuade or attempt to persuade any employee,
independent contractor, dealer, supplier, client or customer of
the Company or any of its subsidiaries to discontinue his or her
relationship or violate any agreement with the Company or any of
its subsidiaries as employee, independent contractor, dealer,
supplier, client or customer, respectively.
8. EQUITABLE RELIEF.
Employee: (i) acknowledges that any breach or attempted
breach of the provisions of any of Sections 5, 6, or 7 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 Section 6, 7, or 8 is held by a court of competent
jurisdiction to be invalid, void or unenforceable, such term,
provision, covenant 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.
11. SEVERABILITY.
If any term, provision, covenant 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, covenants 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/ Xxxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxxxxxx
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WITNESS:
/s/ Xxxxxxx X. Xxxxx Xxxx Xxxxxxx
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Xxxx Xxxxxxx
