EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is being entered into as of
August 5th, 1997, 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 XXXXXXX XXXX, residing at 00000 Xxxxxxxxx Xxxx,
#000, Xxxx xx Xxxxxxx, Xxxxx of Indiana 46038, (hereinafter
called the "Employee").
1. POSITION; DUTIES.
Employee shall serve as President of the Company. As such,
Employee shall report to the Board of Directors of the Company.
Employee shall use his best efforts to perform the duties
generally associated with his position as 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
September 1, 1997, and terminate as of the close of business on
August 31, 2001. On September 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 not be less
than $130,000 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. In
addition, on a quarterly basis, Employee shall receive a stipend
of $100 for each day during the preceding quarter that Employee
spent traveling for business purposes and that required an
overnight stay.
(b) BONUS. Employee shall receive an annual basis an
option, in substantially the form attached hereto as Schedule A,
to purchase twenty five thousand (25,000) shares of the Company
stock at a price equal to the fair market value of the Company
stock on the calendar date Employee is granted such option.
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) COMPANY AUTOMOBILE. Employee will be provided
with a Company automobile in accordance with the Company Car
policy.
(e) VACATION. Employee shall be eligible for four (4)
weeks of vacation, plus five (5) sick days and Company holidays,
annually. In addition, Employee will be included in the Company
Vacation Carry-over Policy.
(f) 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, 8, and 9 (and to the extent applicable thereto,
Sections 9, 10, 11, 12, and 13) 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 for a
period of two (2) years following the termination of such
employment for any reason whatsoever, Employee will not divulge
to anyone or use for his own benefit or the benefit of any third
party any confidential information of the Company or any of its
subsidiaries (including, without limitation, all technical
designs and specifications, trade secrets, financial data and
marketing strategies) learned by Employee in connection with the
performance of his duties hereunder unless (a) any such
information becomes generally available to the public other than
as a result of disclosure by Employee, and/or (b) Employee is
requested or required (by oral question, interrogatories,
requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose any such
information, in which case Employee will (i) promptly notify the
Company of such request or requirement, so that the Company may
seek an appropriate protective order, and (ii) cooperate with the
Company, at its expense, in seeking such an order. Upon
termination of this 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 and for a
period of two (2) years following the termination of such
employment for any reason whatsoever, the Employee will not in
the City of Indianapolis, Indiana or within a radius of thirty
(30) miles of such city's limits, 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. It is expressly
understood and agreed to by the parties that the City of
Indianapolis, Indiana, and the radius of thirty (30) miles from
such city's limits, is the geographical area where the Employee
performs or performed services on behalf of the Company under
this Agreement, or within a reasonable time prior to, the
termination of the Employee's employment.
7. NONSOLICITATION OF EMPLOYEES.
During the term of this Employment Agreement and for a
period of two (2) years following the Date of Termination of this
Employment Agreement, Employee will not either directly or
indirectly, on the Employee's own behalf or on behalf of others,
solicit, divert or hire, any person employed by the Company at
any location where the Employee performed services for the
Corporation or any person with whom the Employee had regular
contact in the court of his employment by the Company, whether or
not the employment of any such person is pursuant to a written
agreement, for a determined period or at will.
8. NONSOLICITATION OF CUSTOMERS.
During the term of this Employment Agreement and for a
period of two (2) years following the Date of Termination of this
Employment Agreement for any reason whatsoever, Employee will not
(except on behalf of or with the prior written consent of the
Corporation), either directly or indirectly, on the Employee's
own behalf or on behalf of others, (1) solicit, divert,
appropriate to, or accept on behalf of any business which
competes with, or is substantially the same as, the business
conducted by or contemplated by the Company or any of its
subsidiaries during the term of this Employment Agreement, any
business from any customer or actively sought prospective
customer of the Company with whom the Employee has had regular
contact, and/or whose contacts with the Company have been
supervised by the Employee.
9. EQUITABLE RELIEF.
Employee: (i) acknowledges that any breach or attempted
breach of the provisions of any of Sections 5, 6, 7, or 8 will
cause immediate and irreparable harm to the Company and that a
remedy at law for any such breach or attempted breach shall be
inadequate; (ii) agrees that the Company shall be entitled to
temporary or permanent injunctive relief with respect to any such
breach or attempted breach (in addition to any other remedies, at
law or in equity as may be available to it with respect to any
such breach or attempted breach); and (iii) agrees to waive any
requirements for the securing or posting of any bond in
connection with the obtaining of any such injunctive or other
equitable relief. If any term, provision, covenant or
restriction in Sections 5, 6, 7, or 8 is held by a court of
competent jurisdiction to be invalid, void or unenforceable, such
term, provision, covenant or restriction shall be deemed amended
to the extent required to render it valid, binding and
enforceable.
10. SUCCESSORS; AMENDMENT; NOTICE.
This 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.
11. ENTIRE AGREEMENT.
This Employment Agreement embodies the entire agreement and
understanding between Employee and the Company with respect to
the subject matter hereof.
12. 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.
13. 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/ Xxxxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxx
WITNESS:
/s/ Xxxxxxx Xxxx /s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
