CONSULTING AGREEMENT
THIS AGREEMENT is being entered into as of September 1,
1997, 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
XXXXXXXXX, residing at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxx xx Xxxxxx,
Xxxx of Alpharetta 30004 (hereinafter called the "Xxxxxxxxx").
WITNESSETH:
WHEREAS, Company and Xxxxxxxxx have mutually agreed to
terminate the Employment Agreement between Company and Xxxxxxxxx
dated July 1, 1996; and
WHEREAS, the parties deem it to be in their best interests
to set forth in writing the terms and conditions under which this
Consulting Agreement is to be made.
NOW, THEREFORE, in consideration of the mutual promises and
covenants of the parties hereto as hereinafter set forth, the
parties hereto hereby agree as follows:
1. TERM OF CONSULTING AGREEMENT.
The term of this Consulting Agreement shall begin as of the
1st day of September 1997, and terminate upon Company's
satisfaction of all terms and conditions stated herein.
2. COMPENSATION AND BENEFITS.
a) COMPENSATION. Xxxxxxxxx shall receive total
compensation of $288,000 over a period of twenty four (24) months
in consecutive equal monthly installments of $12,000.00.
Payments shall be made payable to the order of Xxxxxxxxx and
mailed to 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000. The
first payment shall be made to and received by Xxxxxxxxx on
September 30, 1997, and each successive payment shall be made on
the last day of each month thereafter.
b) OPTIONS. Xxxxxxxxx shall receive on July 1, 1998,
and on an annual basis thereafter, for a period of four (4)
years, an option to purchase twenty five thousand (25,000) shares
of Company stock in accordance with the terms and conditions of
the Company Stock Option Plan.
c) VACATION. Xxxxxxxxx shall receive payment, on or
before November 1, 1997, for ten (10) days of accrued vacation.
d) BONUS. Xxxxxxxxx shall receive payment for any
amount due and owing as of June 30, 1997, pursuant to the Company
Executive Incentive Compensation Program. Payment will be made
in the same manner and in the same amounts as the Company makes
to all other participants. Notwithstanding the foregoing, any
amounts due and owing pursuant to this subsection shall be paid
in full on or before the expiration of this Consulting Agreement.
e) COMMISSIONS. Xxxxxxxxx shall receive a commission
of 10% of the gross sales price for any sale of the Company's
"Hyperdate Methodology" made by Xxxxxxxxx on behalf of the
Company after September 1, 1997. In the event a sale is
consummated, Xxxxxxxxx shall also be reimbursed for any
reasonable expenses incurred in completing such sale. Payment
shall be made on or before thirty (30) days after receipt of
payment from Company's customer. Notwithstanding the foregoing,
Xxxxxxxxx shall not receive commissions for any sale made to an
existing or prospective customer of the Company as of the date of
this Consulting Agreement.
f) OTHER.
(i) Placements. Xxxxxxxxx shall be entitled to
$1/hr for each hour worked by any consultants introduced to the
Company by Xxxxxxxxx and placed by Company with Company's
customers on or after September 1, 1997. Payment shall be made
on or before thirty (30) days after receipt of payment from
Company's customer for such work.
(ii) Projects. Xxxxxxxxx and company shall
mutually agree to the compensation to be paid to Xxxxxxxxx for
any projects introduced to the Company by Xxxxxxxxx on or after
September 1, 1997, that involve any person and/or entity not
presently a customer or prospective customer of the Company.
Xxxxxxxxx shall be paid on such terms and conditions as are
mutually agreed to by the parties hereto.
(iii) Consulting Services. Xxxxxxxxx shall be
entitled to compensation for any consulting services provided to
Company's customers at the written request of Company on such
terms and conditions as are mutually agreed on by the parties
hereto.
3. CONDITIONS TO COMPENSATION AND BENEFITS.
In consideration of the compensation and benefits stated
herein, upon the written request of Company Xxxxxxxxx agrees to
provide up to ten (10) hours of services per week during the term
of this Agreement.
4. RESTRICTIONS.
Xxxxxxxxx shall have no authority to negotiate, enter into,
or execute any contracts binding upon the Company, and/or create
any obligations, financial or otherwise, on the part of the
Company, and/or perform any other acts and/or take any other
actions on behalf of the Company, except such as shall be
specifically authorized by the Board of Directors of the Company
or by an executive officer of the Company acting pursuant to
authority granted by the Board of Directors.
5. TERMINATION.
a) DEATH. This Agreement shall terminate upon
Xxxxxxxxx'x death. Upon such termination, the Company shall pay
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to Xxxxxxxxx'x estate (or as Xxxxxxxxx or his estate shall
otherwise direct) any amounts which remain due and owing
hereunder on such terms and conditions as are stated herein.
Company shall further use its reasonable efforts to assist in the
prompt processing of claims under applicable employee benefit
plans.
b) CAUSE. This Agreement may be terminated by the
Company by written notice to Xxxxxxxxx for cause as defined in
this section. Cause means any material breach of this Agreement.
c) DATE AND EFFECT OF TERMINATION. The Date of
Termination of this Agreement shall be (i) in the case of Section
5(a), the date of Employee's death; or (ii) in the case of a
termination of this Agreement pursuant to Section 5(b), the date
specified in the Company's notice of such termination. Upon any
termination of this Agreement pursuant to this Section 5,
Xxxxxxxxx shall not be entitled to any further payments or
benefits of any nature pursuant to this Agreement, except as
specifically provided for in this Agreement. Sections 6, 7 8, 9,
and 10 (and to the extent applicable thereto, Sections 11, 12 and
13) shall survive any termination of this Agreement pursuant to
this Section 5.
6. CONFIDENTIALITY.
During the term of this Agreement and for a period of
eighteen (18) months following the termination of this Agreement
for any reason whatsoever or the expiration of this Agreement,
Xxxxxxxxx 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
Xxxxxxxxx during the performance of his duties as an employee of
the Company and/or during the term of this Agreement hereunder
unless (a) any such information becomes generally available to
the public other than as a result of disclosure by Xxxxxxxxx,
and/or (b) Xxxxxxxxx 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 Xxxxxxxxx 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 or expiration of this Agreement,
Xxxxxxxxx shall promptly deliver to the Company all confidential
information of the Company or any of its subsidiaries.
7. NONSOLICITATION OF EMPLOYEES.
During the term of this Agreement and for a period of
eighteen (18) months following the Date of Termination of this
Agreement for any reason whatsoever or the expiration of this
Agreement, Xxxxxxxxx will not, either directly or indirectly, on
Xxxxxxxxx'x own behalf or on behalf of others solicit, divert or
hire, any person employed by the Company at any location where
Xxxxxxxxx performed services for the Company or any person with
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whom Xxxxxxxxx had regular contact in the course of his
employment by the Company and/or during the term of this
Agreement, 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 Agreement and for a period of
eighteen (18) months following the Date of Termination of this
Agreement for any reason whatsoever or the expiration of this
Agreement, Xxxxxxxxx will not (except on behalf of or with the
prior written consent of the Company), either directly or
indirectly, on Xxxxxxxxx'x 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 performance of his duties as an
employee of the Company and/or during the term of this Agreement,
any business from any customer or actively sought prospective
customer of the Company with whom Xxxxxxxxx has had regular
contact, and/or whose contacts with the Company have been
supervised by Xxxxxxxxx, and/or any individual and/or entity that
becomes a customer of Company during the term of this Agreement.
Xxxxxxxxx expressly acknowledges and agrees that the
individual and/or entities delineated on Attachment "A" appended
hereto are the customers or actively sought prospective customers
of the Company with whom Xxxxxxxxx has had regular contact,
and/or whose contacts with the Company have been supervised by
Xxxxxxxxx.
Xxxxxxxxx and Company expressly acknowledge and agree that
any individual and/or entity that becomes a customer of Company
during the term of this Agreement shall be added to Attachment
"A" and expressly incorporated therein.
Notwithstanding anything to the contrary stated herein,
"actively sought prospective customers" shall not include any
actively sought prospective customers of the Company that do not
become customers of the Company prior to September 1, 1998.
9. EQUITABLE RELIEF.
Xxxxxxxxx: (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 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 6, 7, or 8 i held by a court of competent
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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. RELEASE.
Xxxxxxxxx does hereby remise, release and forever discharge
the Company, and all business entities with which it is or has
been affiliated, together with any predecessor, successor,
parent, or subsidiary entity as well as any officers, directors,
employees, agents, designees, assignees, representatives,
attorneys or any other person acting or purporting to act on
behalf of the Company or any such other business entity and/or
person previously descried herein, whether herein named or
referred to or not, and who, together with the above named, may
be jointly, severally, and/or jointly and severally liable to
Xxxxxxxxx, whether in their individual and/or corporate capacity,
of and from any and all, and all manner of, actions and causes of
action, rights, suits, covenants, contracts, agreements,
judgments, claims and demands whatsoever in law or equity
existing as of this date.
11. ENTIRE AGREEMENT.
This Agreement embodies the entire agreement and
understanding between Xxxxxxxxx and the Company with respect to
the subject matter hereof This Agreement supersedes any and all
other agreements between the parties with respect to its subject
matter, including, but not limited to, the Employment Agreement
between the parties dated July 1, 1996. No other agreement,
statement, or promise relating to the subject matter of this
Agreement that is not contained herein shall be valid or binding.
12. SEVERABILITY.
If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms,
provisions, covenant and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated.
13. GOVERNING LAW.
This 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.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed in its name and behalf by its duly authorized officer
and Xxxxx Xxxxxxxxx has hereunto set his hand, all on the day and
year first above written.
WITNESS: DELSOFT CONSULTING, INC.
/s/ Xxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, CFO
/s/ Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx, for Board of
Directors
WITNESS:
/s/ Xxxx Xxxxxxx /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
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