EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the _____ day of ____________, 2000, by and between
XXXXXXX COMPUTER RESOURCES, INC., a Delaware corporation ("Company"), and XXXXX
XXXXX ("Employee").
W I T N E S S E T H :
WHEREAS, Company entered into a Stock Purchase Agreement ("Purchase Agreement")
of even date pursuant to which it purchased one hundred percent (100%) of the
outstanding stock of TheLinc Corporation, a Nevada corporation ("Linc") and Val
Tech Computer Systems, Inc., an Alabama corporation ("Val Tech"); and
WHEREAS, Employee owned thirty percent (30%) of the outstanding stock of the
Linc prior to the closing of the Purchase Agreement; and
WHEREAS, Employee, as inducement for and in consideration of Company entering
into the Purchase Agreement, has agreed to enter into and execute this
Employment Agreement pursuant to Article VIII thereof; and
WHEREAS, Company desires to engage the services of Employee, pursuant to the
terms, conditions and provisions as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein set forth, the parties hereby covenant and agree as follows:
1. Employment. The Company agrees to employ the Employee, and the Employee
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agrees to be employed by the Company, upon the following terms and
conditions.
2 Term. The initial term of Employee's employment pursuant to this
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Agreement shall begin on the 7th day of November, 2000, and shall
continue for a period of four (4) years, one (1) month and twenty-nine
(29) days, ending on January 5, 2005, unless terminated earlier pursuant
to the provisions of Section 10, provided that Sections 8, 9, 10(b) and
11, if applicable, shall survive the termination of such employ-ment and
shall expire in accordance with the terms set forth therein.
3. Renewal Term. The term of Employee's employment shall automatically
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renew for additional consecutive renewal terms of one (1) year unless
either party gives written notice of his/its intent not to renew the
terms of this Agreement sixty (60) days prior to expiration of the then
expiring term.
4. Duties. Employee shall serve as Regional Sales Director -
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Internetworking Solutions for the Company's Birmingham, Alabama Division.
Employee shall be responsible to and report to directly to the officers
of the Company and Linc, as applicable. Employee shall devote his best
efforts and substantially all his time during normal business hours to
the diligent, faithful and loyal discharge of the duties of his
employment and towards the proper, efficient and successful conduct of
the Company's affairs. Employee fur-ther agrees to refrain during the
term of this Agreement from making any sales of competing services or
products or from profiting from any transaction involving competitive
computer services or products for his account without the express written
consent of Company.
5. Compensation. For all services rendered by the Employee under this
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Agreement (in addition to other monetary or other benefits referred to
herein), compensation shall be paid to Employee as follows:
(a) Base Salary: During each fiscal year of the initial term of this
Agreement, Employee shall be paid an annual base salary of One
Hundred Thousand Dollars ($100,000.00). Said base salary shall be
payable in accordance with the historical payroll practices of the
Company. For the period commencing November 7, 2000 and ending
January 5, 2001, Employee shall be paid at the rate of Eight
Thousand Three Hundred Thirty-Three Dollars and Thirty-Three Cents
($8,333.33) per month.
(b) Monthly Commission Based On Company's Birmingham, Alabama
Division's Blue Cross/Blue Shield and UAB Accounts: In addition to
Employee's base salary as set forth in Section 5(a) above, solely
for the period commencing January 6, 2001 and ending January 5,
2002, Employee shall be entitled to a monthly commission in the
event Employee satisfies certain economic criteria pertaining to
the Company's Birmingham, Alabama Division's accounts with Blue
Cross/Blue Shield and University of Alabama at Birmingham as
follows:
(i) Ten Percent (10%) of the gross profit for the aforementioned
accounts;
For example, assume at the end of the first month of
Company's 2001 fiscal year, the gross profit from the
aforementioned accounts for such month was Fifty Thousand
Dollars ($50,000.00). Based on these facts, Employee would
be entitled to a Five Thousand Dollar ($5,000.00) commission
for said month (50,000 x 10% = 5,000).
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(ii) The monthly commission determination shall be based on the
internally generated financial statements of Company and the
determination by the Company's Chief Financial Officer shall
be final, binding and conclusive upon all parties hereto,
and the portion of such financial statements relating to the
monthly commissions based on such defined accounts shall be
provided to Employee. Any amount due Employee hereunder
shall be paid within thirty (30) days after the conclusion
of the previous month;
(iii) For purposes of this section, the term "gross profit" shall
mean the gross sales of equipment, software and services
during the applicable period to the aforementioned accounts
by the Company's Birmingham, Alabama Division, less costs of
goods and services sold. In making said gross profit
determination, all gains and losses realized on the sale or
the disposition of Company's assets not in the ordinary
course shall be excluded; all refunds, returns or rebates
which are made during such period relating to such sales
shall be subtracted along with all accounts receivable
relating to accounts derived from such sales that are
written off during such period in accordance with Company's
accounting system.
(c) In addition to Employee's base salary as set forth in Section
5(a) and any monthly commission compensation that Employee may be
entitled to as set forth in Section 5(b) above, for each quarter
during the initial term of this Agreement commencing January 6,
2001, Employee shall be entitled to a quarterly cash bonus in the
event Employee satisfies the following economic criteria during
such quarter. The criteria for the first fiscal year shall be as
follows:
(i) Gross sales of Cisco related products, maintenance and
networking services by Company's Birmingham, Alabama
Division greater than 6.5 million but less than or equal to
7.5 million equals $5,000.00 cash bonus;
(ii) Gross sales of Cisco related products, maintenance and
networking services by Company's Birmingham, Alabama
Division greater than 7.5 million but less than or equal to
8.5 million equals $7,500.00 cash bonus;
(iii)Gross sales of Cisco related products, maintenance and
networking services by Company's Birmingham, Alabama
Division greater than 8.5 million equals $10,000.00 cash
bonus;
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(iv) For purposes of this Section, the term "Gross Sales" of
Cisco related products, maintenance and networking services
shall mean the gross sales of such equipment, software and
services by Company's Birmingham, Alabama Division during
the applicable quarter set forth above. In making said gross
sales determination, all gains and losses realized on the
sale or other disposition of Company's assets not in the
ordinary course shall be excluded. All refunds, returns or
rebates which are made during such quarter relating to such
sales shall be subtracted along with all accounts receivable
derived from such sales that are written off during such
quarter in accordance with Company's accounting system. The
Quarterly Gross Sales of Company's Birmingham, Alabama
Division of Cisco related products, maintenance and
networking services shall be determined by the Company's
internally generated financial statements. The determination
by the Company's Chief Financial Officer shall be final,
binding and conclusive upon all parties hereto and the
portion of such financial statements related to the Cisco
related products, maintenance and networking services shall
be provided to Employee each quarter. Any amount due
Employee hereunder shall be paid within thirty (30) days
after the conclusion of such previous quarter.
(v) The parties agree that in January 2002, January 2003 and
January 2004, they will negotiate in good faith, the level
of gross sales of Company's Birmingham, Alabama Division's
Cisco related products, maintenance and networking service
for the aforementioned cash bonus to be earned for such
year, which criteria shall be predicated upon Company's
Birmingham, Alabama Division's goal projection and budgets
established at the outset of such fiscal year.
(d) In addition to Employee's base salary as set forth in Section
5(a), any monthly commission that Employee may be entitled to as
set forth in Section 5(b) above, and any quarterly bonus
compensation that Employee may be entitled to in Section 5(c)
above, for the period commencing January 6, 2001 and ending
January 5, 2002, Employee shall be entitled to a cash bonus and
incentive stock option award, in the event Employee satisfies
certain economic criteria (which economic criteria shall be
filled in upon the completion of the 2001 business plan for the
Company's Birmingham, Alabama Division by the parties in January,
2001) relating to the Company's Birmingham, Alabama Division set
forth as follows:
(i) Gross sales of Company's Birmingham, Alabama Division
greater than $_____________ with NPBT greater than _____
percent (___%) of gross sales equals $20,000.00 cash bonus
plus 2,000 incentive stock options;
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(ii) Gross sales of Company's Birmingham, Alabama Division
greater than $______________ with NPBT greater than _____
percent (___%) of gross sales equals $30,000.00 cash bonus
with 3,000 incentive stock options;
(iii)Gross sales of Company's Birmingham, Alabama Division
greater than $_____________ with NPBT greater than ____
percent (___%) of gross sales equals $40,000.00 cash bonus
plus 4,000 incentive stock options.
(iv) For purposes of this section, the term "Gross Sales" shall
mean the gross sales of equipment, software and services by
Company's Birmingham, Alabama Division during the applicable
period. In making said Gross Sales determination, all gains
and losses realized on the sale or the disposition of
Company's Birmingham, Alabama Division assets not in the
ordinary course shall be excluded. All refunds or returns
which are made during such period shall be subtracted along
with all accountings receivable derived from such sales that
are written off during such period in accordance with
Company's accounting system. Such Gross Sales and the net
pretax margin of Company shall be determined by the Chief
Financial Officer of the Company in accordance with
generally accepted accounting principles, and such
determination shall be final, binding and conclusive upon
all parties hereto. Commencing January 6, 2001, a 1.8%
royalty fee (MAS 1.5% and Adfund .3%) on gross sales by the
Company's Birmingham, Alabama Division shall be made
incident to said NPBT margin determination. For each
subsequent year described above that this Agreement is in
effect, the parties shall, in good faith, agree upon the MAS
and Adfund royalty to be charged hereunder based on the
level of services and support being provided by Company to
its Birmingham, Alabama Division. Provided, however, such
royalty fee shall be 1.8% if the parties are unable to come
to agreement for each subsequent year. For purposes of this
section, the term "Company's Birmingham, Alabama Division"
shall be defined as the business of TheLinc Corporation,
acquired by Company from Employee and Xxxxxxx Xxxxxxx,
including any part of the business that is operated by
Company's wholly owned subsidiary, Xxxxxxx Select
Integration Solutions, Inc. In addition, commencing January
6, 2001, Company's existing Birmingham, Alabama and
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Montgomery, Alabama branches shall be included within the
definition of Company's Birmingham, Alabama Division. In
addition, Company's Birmingham, Alabama Division shall also
include the northern panhandle of the State of Florida,
excluding any revenues generated in the entire State of
Florida from state and local contracts entered into with
state/local government agencies in Tallahassee, Florida. The
Company's Birmingham, Alabama Division shall also include
sales from customers listed on Exhibit A attached hereto
that are located outside such territory. Said determination
of the NPBT margin shall be subject to verification as set
forth below. Any cash amount determined under section 5(d)
shall be payable to Employee within thirty (30) days after
the issuance of the Company's financial statements for such
period.
(v) Any award of the incentive stock options to acquire the
common stock of Company shall be made fifty percent (50%) in
the shares of the Company and fifty percent (50%) in the
shares of the Company's subsidiary (Xxxxxxx Select
Integration Solutions, Inc.) if it is a publicly traded
entity at such time, as of January 5, 2002 or any other
applicable date, which shall mean with respect to such
shares, the average between the high and low bid and asked
prices for such shares on the over-the-counter market on the
last business day prior to the date on which the value is to
be determined (or the next preceding date on which sales
occurred if there were no sales on such date). In the event
the stock of Xxxxxxx Select Integration Solutions, Inc. is
not publicly traded as of January 5, 2002, Company shall
have the right to award 100% in the shares of the Company
(in lieu of 50%) or shall have the right to pay to Employee,
in cash, the fair market value of such 50% of the stock
options of the Company determined under the Black Scholes
method of valuation of stock options. Any stock options
awarded shall be fully vested over a three (3) year period,
vesting thirty-three and one-third percent (33 1/3%) per
year of employment from the effective date of this
Agreement.
(vi) The parties agree that in January, 2001, January, 2002,
January, 2003 and January, 2004, they will negotiate in good
faith, the level of Gross Sales and NPBT margin of Company's
Birmingham, Alabama Division for the aforementioned cash
bonus and incentive stock option award to be earned for such
years, which NPBT criteria shall be predicated upon
Company's Birmingham, Alabama Division's goals, projections
and budgets established at the outset of such fiscal year.
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(e) In addition to Employee's base salary as set forth in Section
5(a), any monthly commission compensation that Employee may be
entitled to as set forth in Section 5(b) above, any quarterly
bonus compensation that Employee may be entitled to as set forth
in Section 5(c) above, and any annual cash bonus/incentive stock
option award that Employee may be entitled to under Section 5(d)
based on Company's Birmingham, Alabama Division's performance,
Employee shall be entitled to a cash bonus and incentive deferred
compensation and an incentive stock option award for the year
2001 in the event Employee satisfies certain economic criteria
pertaining to Company's performance (which criteria shall be
filled in upon the completion of the 2001 business plan for
Company) during the fiscal year 2001, as follows:
(i) Gross sales of Company greater than $______________ but less
than or equal to $______________ with NPBT greater than ___%
of gross sales equals $10,000.00 cash plus 1,000 incentive
stock options;
(ii) Gross sales of Company greater than $______________ but less
than or equal to $________________ with NPBT greater than
___% of gross sales equals $20,000.00 cash plus 2,000
incentive stock options;
(iii) Gross sales of Company greater than $________________ with
NPBT greater than ___% of gross sales equals $30,000.00 cash
plus 3,000 incentive stock options.
(iv) For purposes of this Section, the term "Gross Sales" shall
mean the gross sales of equipment, software and services by
Company during the applicable period, determined on a
consolidated basis. In making said gross sales
determination, all gains and losses realized on the sale or
other disposition of Company's assets not in the ordinary
course shall be excluded. All refunds or returns which are
made during such period shall be subtracted along with all
accounts receivable derived from such sales that are written
off during such period in accordance with Company's
accounting system. Such Gross Sales and net pre-tax margin
of Company shall be determined by the Chief Financial
Officer of the Company in accordance with generally accepted
accounting principles and such determination shall be final,
binding and conclusive upon all parties hereto. Fifty
percent (50%) of any cash amount determined under Section
5(e) shall be payable to Employee within thirty (30) days
after the issuance of the Company's financial statements for
such period, and the remaining fifty percent (50%) due
Employee under Section 5(e) (other than the award of any
incentive stock options) will constitute incentive deferred
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compensation, which shall be payable to Employee according
to the terms and conditions of the Incentive Deferred
Compensation Agreement attached hereto and incorporated
herein as Exhibit B. Any incentive deferred compensation
shall be fully vested over a five-year period, vesting 20%
per year of employment from the effective date of this
Agreement.
(v) Any award of the incentive stock options to acquire the
common stock of Company shall be made fifty percent (50%) in
the shares of the Company and fifty percent (50%) in the
shares of the Company's subsidiary (Xxxxxxx Select
Integration Solutions, Inc.) if it is a publicly traded
entity at such time, as of January 5, 2002 or any other
applicable date, which shall mean with respect to such
shares, the average between the high and low bid and asked
prices for such shares on the over-the-counter market on the
last business day prior to the date on which the value is to
be determined (or the next preceding date on which sales
occurred if there were no sales on such date). In the event
the stock of Xxxxxxx Select Integration Solutions, Inc. is
not publicly traded as of January 5, 2002, Company shall
have the right to award 100% in the shares of the Company
(in lieu of 50%) or shall have the right to pay to Employee,
in cash, the fair market value of such 50% of the stock
options of the Company determined under the Black Scholes
method of valuation for stock options. Any incentive stock
options awarded shall be fully vested over a three (3) year
period, vesting thirty-three and one-third percent (33 1/3%)
per year of employment from the effective date of this
Agreement.
(vi) The parties agree that in January, 2001, January, 2002,
January, 2003 and January, 2004, they will negotiate in good
faith the implementation of economic criteria for the
earning of incentive deferred compensation and incentive
stock option award for Employee for each of the remaining
fiscal years of this Agreement which will be predicated upon
the attainment of Company's goals, projections and budgets
established at the outset for such fiscal year which shall
be consistent with the goals set forth for senior management
of Company for such year(s). The incentive deferred
compensation and incentive stock option awards shall be
predicated on the structure (as to amounts) used for the
incentive deferred compensation/incentive stock option award
of Company for the year 2001.
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(vii)Company will deliver to Employee copies of the reports of
any determination made hereunder by Company for the subject
period, along with any documentation reasonably requested by
Employee. Within fifteen (15) days following delivery to
Employee of such report, Employee shall have the right to
object in writing to the results contained in such
determination. If timely objection is not made by Employee
to such determination, such determination shall become final
and binding for purposes of this Agreement. If a timely
objection is made by Employee, and the Company and Employee
are able to resolve their differences in writing within
fifteen (15) days following the expiration of the initial
15-day period, then such determination shall become final
and binding as it pertains to this Agreement. If timely
objection is made by Employee to Company, and Employee and
Company are unable to resolve their differences in writing
within fifteen (15) days following the expiration of the
initial 15-day period, then all disputed matters pertaining
to the report shall be submitted and reviewed by the
Arbitrator ("Arbitrator"), which shall be an independent
accounting firm selected by Company and Employee. If
Employee and Company are unable to promptly agree on the
accounting firm to serve as the Arbitrator, each shall
select, by not later than fifteen (15) days following the
expiration of the initial fifteen (15) day period, one
accounting firm and the two selected accounting firms shall
then be instructed to select promptly a third accounting
firm, such third accounting firm to serve as the Arbitrator.
The Arbitrator shall consider only the disputed matters
pertaining to the determination and shall act promptly to
resolve all disputed matters. A decision with respect to all
disputed matters shall be final and binding upon Company and
Employee. The expenses of Arbitration shall be borne
one-half by Employee and one-half by Company. Each party
shall be responsible for his/its own attorney and accounting
fees.
6. Fringe Benefits. During the term of this Agreement, Employee shall be
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entitled to the following benefits:
(a) Health Insurance - Employee shall be provided with the standard
family medical health and insurance coverage maintained by
Company on its employees. Company and Employee shall each pay
fifty percent (50%) of the cost of such coverage.
(b) Vacation - Employee shall be entitled each year to a vacation of
two weeks during which time his compensa-tion will be paid in
full. Provided, however, such weeks may not be taken
consecutively without the written consent of Company.
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(c) Retirement Plan - Employee shall participate, after meeting
eligibility requirements, in any qualified retirement plans
and/or welfare plans maintained by the Company during the term of
this Agreement.
(d) Cellular Telephone - Company shall provide Employee with a
cellular telephone allowance of $75.00 per month. Employee shall
provide Company, upon request, with documentation supporting the
business use of said cellular telephone.
(e) Auto Allowance - Company shall provide Employee with an
automobile allowance of Three Hundred Dollars ($300.00) per month
during the term of this Agreement. Employee shall be responsible
for all maintenance and repairs and for all insurance premiums
for such vehicle.
(f) Other Company Programs - Employee shall be eligible to
participate in any other plans or programs implemented by the
Company for all of its employees with duties and responsibilities
similar to Employee.
(g) Employee shall be responsible for any and all taxes owed, if any,
on the fringe benefits provided to him pursuant to this Section
6.
7. Expenses. During the term of this Agreement, Employee shall be entitled
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to receive prompt reimbursement for all reasonable and customary travel
and entertainment expenses or other out-of-pocket business expenses
incurred by Employee in fulfilling the Employee's duties and
responsibilities hereunder, including all expenses of travel and living
expenses while away from home on business or at the request of and in the
service of the Company, provided that such expenses are incurred and
accounted for in accordance with the reasonable policies and procedures
established by the Company.
8. Non-Competition. Employee expressly acknowledges the provisions of
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Article VII of the Purchase Agreement relating to Employee's Covenant Not
to Compete with Company and its subsidiaries and affiliates. Accordingly,
such provisions of Article VII are incorporated herein by reference to
the extent as if restated in full herein. In addition to the
consideration received under this Agreement, Employee acknowledges that
as one of the owners of the common stock of the Linc, he has received
substantial consideration pursuant to such Purchase Agreement and that as
an inducement for, and in consideration of, Company entering into the
Purchase Agreement and Company entering into this Agreement, Employee has
agreed to be bound by such provisions of Article VII of the Pur-chase
Agreement. Accordingly, such provisions of Article VII and Exhibit F-1
and the restrictions on Employee thereby imposed shall apply as stated
therein.
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9. Non-Disclosure and Assignment of Confidential Information. The Employee
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acknowledges that the Company's trade secrets and confidential and
proprietary information, including without limitation:
(a) unpublished information concerning the Company's:
(i) research activities and plans,
(ii) marketing or sales plans,
(iii) pricing or pricing strategies,
(iv) operational techniques,
(v) customer and supplier lists, and
(vi) strategic plans;
(b) unpublished financial information, including unpublished
information concerning revenues, profits and profit margins;
(c) internal confidential manuals; and
(d) any "material inside information" as such phrase is used for
purposes of the Securities Exchange Act of 1934, as amended;
all constitute valuable, special and unique proprietary and trade secret
information of the Company. In recognition of this fact, the Employee agrees
that the Employee will not disclose any such trade secrets or confidential or
proprietary information (except (i) information which becomes publicly available
without violation of this Agreement, (ii) information of which the Employee did
not know and should not have known was disclosed to the Employee in violation of
any other person's confidentiality obligation, and (iii) disclosure required in
connection with any legal process), nor shall the Employee make use of any such
information for the benefit of any person, firm, operation or other entity
except the Company and its subsidiaries or affiliates. The Employee's
obligation to keep all of such information confidential shall be in effect
during and for a period of five (5) years after the termination of his
employment; provided, however, that the Employee will keep confidential and will
not disclose any trade secret or similar information protected under law as
intangible property (subject to the same exceptions set forth in the
parenthetical clause above) for so long as such protection under law is
extended. For purposes of this section, the term "Company" shall also include
its subsidiaries and affiliates.
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10. Termination.
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(a) The Employee's employment with the Company may be terminated at
any time only for the following reasons:
(i) By Employee's death;
(ii) By Employee's physical or mental disability which renders
Employee unable to perform his duties hereunder;
(iii)By the Company, for cause upon three (3) day's written
notice to Employee. For purposes of this Agreement, the term
"cause" shall mean termination upon: (i) the engaging by
Employee in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise, including
but not limited to any material misrepresentation related to
the performance of his duties; (ii) the conviction of
Employee of a felony or other crime involving theft or
fraud, (iii) Employee's gross neglect, gross misconduct or
gross insubordination in carrying out his duties hereunder
resulting, in either case, in material harm to the Company;
or (iv) any material breach by Employee of this Agreement.
Notwithstanding the foregoing, Employee shall not be deemed
to have been terminated for cause under (i) above, or (iv)
above, unless until there has been delivered to Employee a
copy of a resolution of an officer of the Company, finding
that Employee engaged in the context set forth above in this
section and specifying the particulars thereof in detail,
and Employee shall not have cured or abated such conduct to
the reasonable satisfaction of the Company within seven (7)
days of receipt of such resolution. This provision shall be
applicable solely to the extent the conduct to which the
alleged breach relates is susceptible to being cured in the
reasonable determination of such officer.
(b) Compensation upon Termination: In the event of termination of
employment, the Employee or his estate, in the event of death,
shall be entitled to his annual base salary and other benefits
provided hereunder to the date of his termination. In addition,
Employee shall be entitled to receive any commissions and/or
bonus accrued to the date of his termination of employment as
provided in Sections 5(b), 5(c), 5(d) and 5(e), which shall be
payable (if applicable) pursuant to the terms thereof.
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11. Disability. In the event that Employee becomes temporarily disabled
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and/or totally and permanently disabled, physically or mentally, which
renders him unable to perform his duties hereunder, Employee shall
receive one hundred percent (100%) of his base annual salary (in effect
at the time of such disability) for a period of one (1) year following
the initial date of such disability (offset by any payments to the
Employee received pursuant to disability benefit plans, if any,
maintained by the Company.) Such payments shall be payable in twelve
consecutive equal monthly installments and shall commence thirty (30)
days after the determination by the physicians of such disability as set
forth below.
For purposes of this Agreement, Employee shall be deemed to be
temporarily disabled and/or totally and permanently disabled if attested
to by two qualified physicians, (one to be selected by Company and the
other by Employee) competent to give opinions in the area of the disabled
Employee's physical and/or mental condition. If the two physicians
disagree, they shall select a third physician, whose opinion shall
control. Employee shall be deemed to be temporarily disabled and/or
totally and permanently disabled if he shall become disabled as a result
of any medically determinable impairment of mind or body which renders it
impossible for such Employee to perform satisfactorily his duties
hereunder, and the qualified physician(s) referred to above certify that
such disability does, in fact, exist. The opinion of the qualified
physician(s) shall be given by such physician(s), in writing directed to
the Company and to Employee. The physician(s) decision shall include the
date that disability began, if possible, and the 12th month of such
disability, if possible. The decision of such physician(s) shall be final
and conclusive and the cost of such examination shall be paid by Company.
12. Severability. In case any one (1) or more of the provisions or part of
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a provision contained in this Agreement shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a
provision of this Agreement. In such a situation, this Agreement shall be
reformed and construed as if such invalid, illegal or unenforceable
provision, or part of a provision, had never been contained herein, and
such provision or part shall be reformed so that it will be valid, legal
and enforceable to the maximum extent possible.
13. Governing Law. This Agreement shall be governed and construed under the
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laws of the State of Alabama and shall not be modified or discharged, in
whole or in part, except by an agreement in writing signed by the
parties.
14. Notices. All notices, requests, demands and other communications
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relating to this Agreement shall be in writing and shall be deemed to
have been duly given if delivered personally or mailed by certified or
registered mail, return receipt re-quested, postage prepaid to the
following addresses (or to such other address for a party as shall be
specified by notice pursuant hereto):
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If to Company, to: Pomeroy Computer Resources, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxx X. Xxxxx III, Esq.
Xxxxxxxxx & Dreidame Co., L.P.A.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
If to Employee, to: the Employee's residential address, as
set forth in the Company's records
With a copy to: Xxxxxxx Xxxx, Esq.
Sirote & Permutt, P.C.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
15. Enforcement of Rights. The parties expressly recognize that any breach
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of this Agreement by either party is likely to result in irrevocable
injury to the other party and agree that such other party shall be
entitled, if it so elects, to institute and prosecute proceedings in any
court of competent jurisdiction in Jefferson County, Alabama, either at
law or in equity, to obtain damages for any breach of this Agreement, or
to enforce the specific performance of this Agreement by each party or to
enjoin any party from activities in violation of this Agreement. Should
either party engage in any activities prohibited by this Agreement, such
party agrees to pay over to the other party all compensation,
remuneration, monies or property of any sort received in connection with
such activities. Such payment shall not impair any rights or remedies of
any non-breaching party or obligations or liabilities of any breaching
party pursuant to this Agreement or any applicable law.
16. Entire Agreement. This Agreement and any exhibits hereto and the
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Purchase Agreement referred to herein contain the entire understanding of
the parties with respect to the subject matter contained herein and may
be altered, amended or superseded only by an agreement in writing, signed
by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
17. Parties in Interest.
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(a) This Agreement is personal to each of the parties hereto. No
party may assign or delegate any rights or obligations hereunder
without first obtaining the written consent of the other party
hereto; provided, however, that nothing in this Section 17 shall
preclude (i) Employee from designating a beneficiary to receive
any benefit payable hereunder upon his death, or (ii) executors,
administrators, or legal representatives of Employee or his
estate from assigning any rights hereunder to person or persons
entitled thereto. Notwithstanding the foregoing, this Agreement
shall be binding upon and inure to the benefit of any successor
corporation of Company
(b) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the assets of the Company or the business
with respect to which the duties and responsibilities of Employee
are principally related, to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that
Company would have been required to perform it if no such
succession had taken place. As used in this Agreement "Company"
shall mean the Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which executes and
delivers the assumption agreement provided for in this Section 17
or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
18. Representations of Employee. Employee represents and warrants that he
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is not party to or bound by any agreement or contract or subject to any
restrictions including without limitation any restriction imposed in
connection with previous employment which prevents Employee from entering
into and performing his obligations under this Agreement.
19. Counterparts. This Agreement may be executed simulta-neously in several
------------
counterparts, each of which shall be deemed an original part, which
together shall constitute one and the same instrument.
15
IN WITNESS WHEREOF, this Agreement has been executed effec-tive as of the day
and year first above written.
WITNESSES: COMPANY:
XXXXXXX COMPUTER RESOURCES, INC.
------------------------------------
By:
---------------------------------
XXXXXXX X. XXXXXXX
Chief Financial Officer
EMPLOYEE:
------------------------------------
---------------------------------
XXXXX XXXXX
16
