EXHIBIT 10.55
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and effective as of the
6th day of July, 2005 ("Effective Date"), between SED INTERNATIONAL, INC., a
Georgia corporation (the "Subsidiary") and wholly owned subsidiary of SED
INTERNATIONAL HOLDINGS, INC., a Georgia corporation (the "Company"), and
JONATHAN ELSTER, an individual resident of the State of Georgia (the
"Executive").
BACKGROUND:
Executive and the Subsidiary are parties to that certain Employment
Agreement, dated January 1, 2004 (as amended, the "Prior Agreement"), pursuant
to which Executive agreed to serve as Executive Vice President of the
Subsidiary. The Subsidiary recognizes Executive's past and potential
contributions to the growth and success of the Subsidiary. The Subsidiary
desires to provide for the continued employment of Executive and to make certain
changes in the Prior Agreement which the Subsidiary has determined will
reinforce and encourage the continued dedication of Executive to the Subsidiary
and will promote the best interests of the Subsidiary and its stockholders.
Executive is willing to continue to serve the Subsidiary on the terms and
conditions herein provided, and to replace the Prior Agreement with this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT OF EXECUTIVE; DUTIES OF EXECUTIVE. The Subsidiary hereby
employs Executive as its Executive Vice President, and Executive hereby accepts
employment with the Subsidiary in that capacity, subject to the terms and
conditions set forth in this Agreement. As Executive Vice President, Executive
shall faithfully perform for the Subsidiary the duties of said office (as
described in the Bylaws of the Company) and shall perform such other duties of
an executive, managerial or administrative nature as are from time to time
assigned or delegated to the Executive by the Board of Directors of the Company
or by the Chief Executive Officer of the Company if the Board does not do so.
The Executive Vice President shall report to the Chief Executive Officer of the
Company. Throughout his employment hereunder, Executive shall devote
substantially all of his time, energy and skill to perform the duties of his
employment (vacations as provided hereunder and reasonable absences because of
illness excepted), and shall use his best efforts to follow and implement all
management policies and decisions of the Company. Executive shall not become
involved in the management of any other company, partnership, proprietorship or
other entity, other than an affiliate of the Subsidiary (or the Company),
without the consent of the Board of Directors of the Subsidiary; provided,
however, that as long as it does not interfere with Executive's employment
hereunder. Executive may serve as a director in a company that does not compete
with the business of the Subsidiary or any affiliate of the Subsidiary, and may
serve as an officer or director or otherwise participate in educational,
welfare, social, religious or civic organizations. The Executive shall not be
required to relocate from the Atlanta. Georgia metropolitan area in connection
with the performance of his duties hereunder.
2. COMPENSATION, BENEFITS AND REIMBURSEMENT OF EXPENSES.
(a) As compensation for his services hereunder, the Subsidiary shall pay
Executive an annual base salary of Two Hundred Sixty Thousand Dollars
($260,000.00). Such salary shall be paid in accordance with the normal payroll
practices of the Subsidiary and shall be subject to such deductions and
withholdings as are required by law or by the policies of the Subsidiary, from
time to time in effect.
(b) Executive shall be entitled to received an annual bonus ("Bonus") with
respect to each fiscal year of the Company ending during the Term of this
Agreement in an amount equal to three percent (3%) of
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the Company's Pretax Adjusted Annual Income (as defined immediately hereafter).
"Pretax Adjusted Annual Income" shall mean, with respect to a given fiscal year,
earnings before taxes as reported on the company's audited consolidated
statement of operations for such fiscal year, excluding extraordinary,
nonoperational costs and profits.
(c) Executive shall be entitled to participate or to continue participation
in any present or future group life, health and hospitalization or disability
insurance plans, pension or retirement plans or similar death benefits as are
available to management executives of the Company and the Subsidiary, on the
same terms as such other executives, in each case to the extent that Executive
is eligible under the terms of such plans or programs.
(d) Executive shall be entitled to four (4) weeks of paid vacation per
year, subject to the Subsidiary's normal employee policies for unused vacation
as adopted and amended from time to time.
(e) Executive shall be reimbursed in accordance with the policies of the
Subsidiary, as adopted and amended from time to time, for all reasonable and
appropriate expenses incurred by him in connection with the performance of his
duties of employment hereunder; provided, however, Executive shall as a
condition of such reimbursement, submit verification of the nature and amount of
such expenses in accordance with the reimbursement policies from time to time
adopted by the Subsidiary.
3. TERM AND TERMINATION.
(a) The term ("Term") of this Agreement and of Executive's employment
hereunder shall commence as of July 1, 2004 and shall continue for a period of
five (5) years thereafter (the "Initial Term") unless earlier terminated as
provided in Section 3(b) of this Agreement. Executive shall have the right to
renegotiate an additional one (1) year to the Initial Term, at any time beyond
the first anniversary of this Agreement, so long as the Term shall not exceed
five (5) years.
(b) Executive's employment under this Agreement shall terminate upon
Executive's death. Executive's employment hereunder may also be terminated (i)
upon mutual agreement of Executive and the Subsidiary; (ii) unilaterally by the
Subsidiary, upon written notice to Executive, for Good Cause (as defined in
Section 3(c) below); or (iii) upon written notice to Executive if Executive
shall at any time be unable to perform the essential functions of his job
hereunder, by reason of a physical or mental illness or condition, with or
without reasonable accommodation, for a continuous period of one hundred eighty
(180) consecutive days, as certified by a physician or physicians selected by
the Board of Directors of the Company.
(c) As used in this Agreement, "Good Cause" means; (i) any act of fraud or
dishonesty; (ii) any act of theft or embezzlement; (iii) the breach of any
material provision of this Agreement by Executive (provided that such breach is
not cured by Executive within thirty (30) days of receiving written notice of
such breach from the Subsidiary); (iv) violation of the policies and procedures
of the Subsidiary; (v) failure to comply with the written directions of the
Board of Directors of the Company; (vi) engaging in any unlawful harassment or
discrimination; (vii) the conviction of Executive of any crime involving moral
turpitude (whether felony or misdemeanor) or involving any felony; (viii) any
act of moral turpitude by Executive that materially adversely affects the
Subsidiary or its business reputation; (ix) violation of state or federal
securities laws; or (x) any other matter constituting "good cause" under the
laws (including, inter alia, statutes, regulations or judicial case law) of the
State of Georgia.
(d) Upon the termination of this Agreement and Executive's employment
hereunder as provided in Section 3(b), the Subsidiary shall have no further
obligation to Executive other than (i) for payment of salary, Bonus amounts,
expense reimbursement and other benefits earned or accrued and unpaid at the
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effective date of such termination; and (ii) any indemnification payments that
may become payable to Executive pursuant to the provisions of the Company's and
the Subsidiary's Articles of Incorporation. Bylaws, or similar policies, plans
or agreements relating to indemnification of directors and officers of the
Company and the Subsidiary under certain circumstances.
4. AGREEMENT NOT TO SOLICIT CUSTOMERS. As part of the consideration for the
compensation and benefits to be paid to Executive hereunder, in keeping with
Executive's duties as a fiduciary and in order to protect the Subsidiary's
interest in the business relationships developed by Executive with the customers
and potential customers of the Subsidiary, Executive agrees that during the Term
of Executive's employment under this Agreement and for a period of one (1) year
from the date of the termination of such employment (at any time for any reason,
with or without cause), Executive shall not, without the prior written consent
of the Subsidiary, directly or indirectly solicit or attempt to solicit any
Restricted Customer (as hereinafter defined) for the purpose of or with a view
to providing services or products to the Restricted Customer which the
Subsidiary has provided or provides to such Restricted Customer. "Restricted
Customer" means any person or entity to which (i) the Subsidiary provided or
actively sought to provide services or products and (ii) with whom Executive had
material contact during the two (2) year period immediately preceding the
termination of Executive's employment with the Subsidiary. Executive understands
that the foregoing restrictions may limit his ability to engage in certain
businesses anywhere in the world during the period provided for above, but
acknowledges that the Subsidiary has a legitimate interest in restricting
solicitation as provided in this Section without reference to a specific
territory and that Executive will receive sufficiently high remuneration and
other benefits under this Agreement to justify such restriction.
5. OWNERSHIP AND PROTECTION OF PROPRIETARY INFORMATION.
(a) As used herein, "Proprietary Information" means information related to
the Subsidiary or the Company that (i) derives economic value, actual or
potential, from not being generally known to other persons who can obtain
economic value from its disclosure or use; and (ii) is the subject of efforts by
the Subsidiary or the Company that are reasonable under the circumstances to
maintain its secrecy, including, without limitation, (1) with respect to
information which has been reduced to tangible form, marking such information
clearly and conspicuously with a legend identifying its confidential or
proprietary nature: (2) with respect to any oral presentation or communication,
denominating such information as confidential immediately before, during or
after such oral presentation or communication; or (3) otherwise treating such
information as confidential. Assuming these two criteria are met. Proprietary
Information includes, without limitation, technical and nontechnical data
related to the formulas, patterns, designs, compilations, programs. inventions,
methods, techniques, drawings, processes, finances, actual or potential
customers and suppliers, research, development, existing and future products,
and employees of the Subsidiary and the Company. Proprietary Information
includes information that has been disclosed to the Subsidiary or the Company by
a third party, which the Subsidiary or the Company is obligated to treat as
confidential, and information which is proprietary to an affiliate of the
Subsidiary or the Company.
(b) Executive acknowledges that all Proprietary Information and all
physical embodiments thereof are confidential to and are and will remain the
sole and exclusive property of the Subsidiary. Executive must: (i) immediately
disclose to the Subsidiary all Proprietary Information developed in whole or in
part by Executive during the Term of his employment with the Subsidiary, (ii)
assign to the Subsidiary any right, title or interest Executive may have in such
Proprietary Information, and (iii) at the request and expense of the Subsidiary,
do all things and sign all documents or instruments reasonably necessary in the
opinion of the Subsidiary to eliminate any ambiguity as to the ownership by and
rights of the Subsidiary in such Proprietary Information including, without
limitation, providing to the Subsidiary Executive's full cooperation in any
litigation or other proceeding to establish or protect such rights.
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(c) Except to the extent necessary to perform the services to be provided
hereunder, Executive will not reproduce, use, distribute, disclose or otherwise
disseminate the Proprietary Information or any physical embodiments thereof and
will in no event take any action causing, or fail to take the action necessary
in order to prevent, any Proprietary Information disclosed to or developed by
Executive to lose its character or cease to qualify as Proprietary Information.
Each reproduction of any of the Proprietary Information must prominently contain
a legend identifying its confidential or proprietary nature.
(d) Executive represents and warrants that any information disclosed by
Executive to the Subsidiary is not confidential or proprietary to Executive or
to any third party. Accordingly, no obligation of any kind is assumed by or to
be implied against the Subsidiary by virtue of any information received, in
whatever form or whenever received, from Executive relating to the subject
matter hereof, and the Subsidiary will be free to reproduce, use and disclose to
others such information without limitation.
(e) Upon request by the Subsidiary, and in any event upon termination of
the employment of Executive with the Subsidiary for any reason, as a prior
condition to receiving any final compensation hereunder, Executive will promptly
deliver to the Subsidiary all property belonging to the Subsidiary, including,
without limitation, all Proprietary Information and all embodiments thereof then
in his custody, control or possession.
(f) The covenants of confidentiality set forth in this Section 5 will apply
on and after the Effective Date to any Proprietary Information disclosed by the
Subsidiary to or developed by Executive prior to or after the Effective Date and
will continue and be maintained by Executive (i) with respect to all Proprietary
Information which falls within the definition of "trade secrets" under
applicable law. at all times following the termination of Executive's employment
hereunder for any reason whatsoever, and (ii) with respect to all other
Proprietary Information, during the Term of Executive's employment hereunder and
for a period of three (3) years after the termination of Executive's employment
hereunder for any reason whatsoever.
6. INTELLECTUAL PROPERTY. The Subsidiary shall be the sole owner of all the
products and proceeds of Executive's services hereunder, including, without
limitation, all materials, ideas, concepts, formats suggestions, developments,
arrangements, packages, programs and other intellectual property that Executive
may acquire, obtain, develop or create in connection with, and during the Term
of. Executive's employment hereunder, free and clear of any claims by Executive
or anyone claiming under Executive of any kind or character whatsoever, other
than Executive's right to receive payments hereunder, Executive shall, at the
reasonable request of the Subsidiary, execute such assignments, certificates or
other instruments as the Subsidiary from time to time shall deem necessary or
desirable to evidence, establish, maintain, perfect, protect, enforce, or defend
its right, title or interest in or to any such properties.
7. REMEDY FOR BREACH. Executive agrees that the damage to the Subsidiary
resulting from any actual or threatened breach by Executive of any of the
covenants contained in Sections 4, 5 and 6 of this Agreement would be immediate,
irreparable and difficult to measure, and that money damages would not be an
adequate remedy. Therefore, Executive agrees that the Subsidiary shall be
entitled to specific performance of the covenants in any of such sections or
injunctive relief, by temporary or permanent injunction or other appropriate
judicial remedy, writ or order, or both, in addition to any damages and legal
expenses (including attorneys' fees) which the Subsidiary may be legally
entitled to recover.
8. MISCELLANEOUS. Any notice required hereunder shall be deemed delivered
to the Subsidiary when transmitted to the Secretary of the Subsidiary by
certified mail, postage prepaid, addressed to such person at the corporate
headquarters of the Subsidiary at 4916 North Royal Atlanta Drive, Tucker,
Georgia 30084 (or the principal place of business of the Subsidiary if hereafter
it is moved), and shall be deemed delivered to Executive when delivered by
certified mail, postage prepaid, addressed to Executive at 240 Westminster
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Place, Atlanta, Georgia 30350. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. This
Agreement is made under, and shall be governed by and construed in accordance
with, the laws of the State of Georgia without giving effect to the conflict of
law provisions thereof. The headings of the sections of this Agreement are
included solely for convenience of reference and shall not control the meaning
or interpretation of any of the provisions of this Agreement. This Agreement
contains the entire agreement of the parties relating to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings with respect to such subject matter, including without limitation
the Prior Agreement. No amendment or modification of this Agreement shall be
deemed effective unless made in a writing signed by the parties hereto. This
Agreement is solely for the benefit of the Subsidiary (and its affiliates) and
Executive, and there shall be no third party beneficiaries to this Agreement.
This Agreement may not be assigned by Executive. This Agreement shall inure to
the benefit of the Subsidiary, its subsidiaries and affiliates, and their
respective successors and assigns. To the extent any provision or any portion of
any provision of this Agreement shall be invalid or unenforceable, it shall be
considered deleted herefrom and the remainder of this Agreement shall be
unaffected. The obligations and covenants contained in Sections 3(d) and 4
through 8 (inclusive) of this Agreement shall survive any termination of
Executive's employment hereunder at any time for any reason whatsoever.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date.
"SUBSIDIARY": "EXECUTIVE":
SED INTERNATIONAL, INC., /s/ JONATHAN ELSTER
a Georgia corporation ----------------------------------------
JONATHAN ELSTER
By: /s/ MARK DIVITO
---------------------------------
Name and Title: MARK DIVITO VPOPS.
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