EXHIBIT 10.5
INTEGRATED ALARM SERVICES GROUP, INC.
AMENDED EMPLOYMENT AGREEMENT
AMENDED EMPLOYMENT AGREEMENT made as of March, 2003 by and
between INTEGRATED ALARM SERVICES GROUP, INC., a Delaware corporation, having an
office at One Capital Center, 00 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000
(hereinafter referred to as "Employer") and Xxxxx X. Xxxx, an individual
residing at 000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 (hereinafter referred to as
"Employee");
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as the Executive
Vice President of Employer; and
WHEREAS, Employee is willing to be employed as the Executive
Vice President of Employer in the manner provided for herein, and to perform
the duties of the Chief Financial Officer of Employer upon the terms and
conditions herein set forth;
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein set forth it is agreed as follows:
1. Employment of Executive Vice President of Employer.
Employer hereby employs Employee as Executive Vice President.
2. Term.
a. Subject to Section 9 and Section 10 below, the term of
this Agreement shall be for a period of thirty-six (36) months commencing on
October 1,2002. The Term of this Agreement shall be automatically extended for
additional one (1) year periods, unless either party notifies the other in
writing at least ninety (90) days prior to the expiration of the then existing
Term of its intention not to extend the Term. During the Term, Employee shall
devote substantially all of his business time and efforts to Employer and its
subsidiaries and affiliates.
3. Duties. The Employee shall perform those functions
generally performed by persons of such title and position, shall attend all
meetings of the stockholders and the Board, shall perform any and all related
duties and shall have any and all powers as may be prescribed by resolution of
the Board, and shall be available to confer and consult with and advise the
officers and directors of Employer at such times that may be required by
Employer. Employee shall report directly to the Employer's Chief Executive
Officers.
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4. Compensation.
a. (i) Employee shall be paid a minimum of $160,000 per
year during the Term of this Agreement. Employee shall be paid periodically in
accordance with the policies of the Employer during the term of this Agreement,
but not less than monthly.
(ii) Employee is eligible for an annual bonus, if any,
which will be determined and paid in accordance with policies set from time to
time by the Board.
b. Employer shall include Employee in its health insurance
program available to Employer's executive officers and shall pay 100% of the
premiums for such program.
c. Employee shall have the right to participate in any
other employee benefit plans established by Employer.
d. (i) In the event of a "Change of Control" whereby:
(A) A person (other than a person who is an officer or a Director of
Employer on the effective date hereof), including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, becomes, or obtains the
right to become, the beneficial owner of Employer securities having 50% or more
of the combined voting power of then outstanding securities of the Employer that
may be cast for the election of directors of the Employer;
(B) At any time, a majority of the Board-nominated slate of candidates
for the Board is not elected;
(C) Employer consummates a merger in which it is not the surviving
entity;
(D) Substantially all Employer's assets are sold; or
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(E) Employer's stockholders approve the dissolution or liquidation of
Employer; then
(ii) (A) All stock options and warrants ("Rights")
granted by Employer to Employee under any plan or otherwise prior to the
effective date of the Change of Control, shall become vested, accelerate and
become immediately exercisable.
(B) If at any time within two years of the said Change of
Control, Employee is not retained by Employer or the surviving entity, as
applicable, under terms and conditions substantially similar to those herein, or
if Employee's duties require employee to move to a location not acceptable to
Employee, then in addition, Employee shall be eligible to receive a one-time
cash bonus, equal on an after-tax basis to two times his average compensation
for the three previous fiscal years. Such compensation shall include salary,
bonus, and any other compensation pursuant hereto. Said bonus shall be paid
within thirty (30) days of the change of Employee's employment conditions.
5. Expenses. Employee shall be reimbursed for all of his
actual out-of-pocket expenses incurred in the performance of his duties
hereunder, provided such expenses are acceptable to Employer, which approval
shall not be unreasonably withheld, for business related travel and
entertainment expenses, and that Employee shall submit to Employer reasonably
detailed receipts with respect thereto.
6. Vacation. Employee shall be entitled to receive four (4)
weeks paid vacation time after each year of employment upon dates agreed upon by
Employer. Upon separation of employment, for any reason, vacation time accrued
and not used shall be paid at the salary rate of Employee in effect at the time
of employment separation.
7. Secrecy. At no time shall Employee disclose to anyone any
confidential or secret information (not already constituting information
available to the public) concerning the internal affairs, business operations,
and trade secrets of Employer.
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8. Covenant Not to Compete.
(a) Subject to, and limited by, Section 10(b), Employee will not, at
any time, during the term of this Agreement, and for one (1) year thereafter,
either directly or indirectly, engage in, with or for any enterprise,
institution, whether or not for profit, business, or company, competitive with
the business (as identified herein) of Employer as such business may be
conducted on the date thereof, as a creditor, guarantor, or financial backer,
stockholder, director, officer, consultant, advisor, employee, member, or
otherwise of or through any corporation, partnership, association, sole
proprietorship or other entity; provided, that an investment by Employee, his
spouse or his children is permitted if such investment is not more than four
percent (4%) of the total debt or equity capital of any such competitive
enterprise or business and further provided that said competitive enterprise or
business is a publicly held entity whose stock is listed and traded on a
national stock exchange, the NASDAQ Stock Market, or the over-the-counter
bulletin board or any successor thereto. As used in this Agreement, the business
of Employer shall be deemed to include wholesale monitoring and related support
services, and financing solutions and products, within the security alarm
industry.
(b) For a period one year from the date of termination of this
agreement Employee shall not contact or solicit any of the Employer's dealers,
customers, employees or suppliers.
9. Termination.
a. Termination by Employer
(i) Employer may terminate this Agreement upon written
notice for Cause. For purposes hereof, "Cause" shall mean (A) Employee's
misconduct as could reasonably be expected to have a material adverse effect on
the business and affairs of Employer, (B) the Employee's disregard of lawful
instructions of Employer's Board of Directors consistent with Employee's
position relating to the business of Employer or neglect of duties or failure to
act, which, in each case, could reasonably be expected to have a material
adverse effect on the business and affairs of Employer,(C) engaging by the
Employee in conduct that constitutes activity in competition with Employer; (D)
the conviction of Employee for the commission of a felony; and/or (E) the
habitual abuse of alcohol or controlled substances. Notwithstanding anything to
the contrary in this Section 9(a)(i), Employer may not terminate Employee's
employment under this Agreement for Cause unless Employee shall have first
received notice from the Board advising Employee of the specific acts or
omissions alleged to constitute Cause, and such acts or omissions continue after
Employee shall have had a reasonable opportunity (at least 10 days from the date
Employee receives the notice from the Board) to correct the acts or omissions so
complained of. In no event shall alleged incompetence of Employee in the
performance of Employee's duties be deemed grounds for termination for Cause.
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(ii) This agreement automatically shall terminate upon
the death of Employee, except that Employee's estate shall be entitled to
receive any amount accrued under Section 4(a).
b. Termination by Employee
(i) Employee shall have the right to terminate his
employment under this Agreement upon 30 days' notice to Employer given within 90
days following the occurrence of any of the following events (A) through (G):
(A) Employee is not elected or retained as the Chief
Financial Officer.
(B) Employer acts to materially reduce Employee's
duties and responsibilities hereunder. Employee's duties and responsibilities
shall not be deemed materially reduced for purposes hereof solely by virtue of
the fact that Employer is (or substantially all of its assets are) sold to, or
is combined with, another entity, provided that Employee shall continue to have
the same duties and responsibilities with respect to Employer's business, and
Employee shall report directly to the chief executive officer and/or board of
directors of the entity (or individual) that acquires Employer or its assets.
(C) Employer acts to change the geographic location
of the performance of Employee's duties from the Albany, New York area. For
purposes of this Agreement, the Albany, New York area shall be deemed to be the
area within 30 miles of the current address of the Employer as set forth above.
(D) A Material Reduction (as hereinafter defined) in
Employee's rate of base compensation, or Employee's other benefits. "Material
Reduction" shall mean a ten percent (10%) differential;
(E) A failure by Employer to obtain the assumption
of this Agreement by any successor;
(F) A material breach of this Agreement by Employer,
which is not cured within thirty (30) days of written notice of such breach by
Employer;
(G) A Change of Control.
(ii) Anything herein to the contrary notwithstanding,
Employee may terminate this Agreement upon thirty (30) days written notice.
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(iii) If Employee shall terminate this Agreement under
Section 9(b)(i), Employee shall be entitled to receive 12 months salary. Other
than the payment of 12 months salary to Employee, Employer shall have no further
obligation to compensate Employee pursuant to Section 4 above. If Employee shall
terminate this Agreement pursuant to Section 9(b)(ii), Employee shall only be
entitled to any accrued and unpaid compensation as of the date of termination as
provided in Section 4(a)(i).
10. Consequences of Breach by Employer;
Employment Termination
a. If this Agreement is terminated pursuant to Section
9(b)(i) hereof, or if Employer shall terminate Employee's employment under this
Agreement in any way that is a breach of this Agreement by Employer, the
following shall apply:
(i) Employee shall be entitled to payment of 24 months
salary; and
(ii) Employee shall be entitled to payment of any
previously declared bonus as provided in Section 4(a) above.
b. In the event of termination of Employee's employment
pursuant to Section 9(b)(i) of this Agreement, the provisions of Section 8 shall
not apply to Employee.
11. Remedies
Employer recognizes that because of Employee's special
talents, stature and opportunities in the computer industry, and because of the
special creative nature of and compensation practices of said industry and the
material impact that individual projects can have on the Company's results of
operations, in the event of termination by Employer hereunder (except under
Section 9(a)(i) or (iii), or in the event of termination by Employee under
Section 9(b)(i) before the end of the agreed term, the Employer acknowledges and
agrees that the provisions of this Agreement regarding further payments of base
salary, bonuses and the exercisability of Rights constitute fair and reasonable
provisions for the consequences of such termination, do not constitute a
penalty, and such payments and benefits shall not be limited or reduced by
amounts' Employee might earn or be able to earn from any other employment or
ventures during the remainder of the agreed term of this Agreement.
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12. Excise Tax. In the event that any payment or benefit
received or to be received by Employee in connection with a termination of his
employment with Employer would constitute a "parachute payment" within the
meaning of Code Section 280G or any similar or successor provision to 280G
and/or would be subject to any excise tax imposed by Code Section 4999 or any
similar or successor provision then Employer shall assume all liability for the
payment of any such tax and Employer shall immediately reimburse Employee on a
"grossed-up" basis for any income taxes attributable to Employee by reason of
such Employer payment and reimbursements.
13. Attorneys' Fees and Costs. If any action at law or in
equity is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which he may be
entitled.
14. Entire Agreement; Survival. This Agreement contains the
entire agreement between the parties with respect to the transactions
contemplated herein and supersedes, effective as of the date hereof any prior
agreement or understanding between Employer and Employee with respect to
Employee's employment by Employer. The unenforceability of any provision of this
Agreement shall not effect the enforceability of any other provision. This
Agreement may not be amended except by an agreement in writing signed by the
Employee and the Employer, or any waiver, change, discharge or modification as
sought. Waiver of or failure to exercise any rights provided by this Agreement
and in any respect shall not be deemed a waiver of any further or future rights.
b. The provisions of Sections 4, 7, 8, 9(a)(ii), 9(c), 10,
11, 12, 14, 16, 17 and 18 shall survive the termination of this Agreement.
15. Assignment. This Agreement shall not be assigned to other
parties.
16. Governing Law. This Agreement and all the amendments
hereof, and waivers and consents with respect thereto shall be governed by the
internal laws of the State of New York, without regard to the conflicts of laws
principles thereof.
17. Notices. All notices, responses, demands or other
communications under this Agreement shall be in writing and shall be deemed to
have been given when
a. delivered by hand;
b. sent be telex or telefax, (with receipt confirmed),
provided that a copy is mailed by registered or certified mail, return receipt
requested; or
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c. received by the addressee as sent be express delivery
service (receipt requested) in each case to the appropriate addresses, telex
numbers and telefax numbers as the party may designate to itself by notice to
the other parties:
(i) if to the Employer:
Integrated Alarm Services Group, Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxx Xxxx
Attention: Xxxx Xxx XxXxxx
Telefax: (000)000-0000
Telephone: (000)000-0000
Xxxxxxx, Savage, Kaplowitz,
Wolf & Marcus LLP
000 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telefax: (000) 000-0000
Telephone: (000) 000-0000
(ii) if to the Employee:
Xxxxx X. Xxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
18. Severability of Agreement. Should any part of this
Agreement for any reason be declared invalid by a court of competent
jurisdiction, such decision shall not affect the validity of any remaining
portion, which remaining provisions shall remain in full force and effect as if
this Agreement had been executed with the invalid portion thereof eliminated,
and it is hereby declared the intention of the parties that they would have
executed the remaining portions of this Agreement without including any such
part, parts or portions which may, for any reason, be hereafter declared
invalid.
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IN WITNESS WHEREOF, the understand have executed this
agreement as of the day and year first above written.
INTEGRATED ALARM SERVICES GROUP, INC.
By: /s/ Xxxxxxx X. XxXxxx
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Xxxxxxx X. XxXxxx
Chief Executive Officer
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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