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Exhibit 10.13
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT effective as of _______________,
1999, is by and between iBIZ TECHNOLOGY CORP., a Florida corporation, and
INVNSYS TECHNOLOGY CORPORATION, an Arizona corporation, (collectively the
"Company"), and XXXX XXXXXXX, an individual residing in Phoenix, Arizona
("Employee").
RECITALS:
A. Employee has agreed to serve as Vice-President of
Operations of the Company;
B. The Board of Directors of the Company considers sound and
vital management to be essential and desires to have the benefit of Employee's
knowledge, experience and service; and
C. Employee desires to be employed by the Company and the
Company desires to retain Employee as its Vice-President of Operations on the
terms and conditions set forth herein.
AGREEMENTS:
The parties hereto, in consideration of the covenants and
agreements set forth herein and other good and valuable consideration, agree as
follows:
1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the meaning indicated thereof:
1.1 Board means the Board of Directors of the Company
or any successor.
1.2 Company means iBIZ TECHNOLOGY CORP. or any
successor entity.
1.3 Compensation means the total amount included in
Employee's gross income for federal income tax purposes in connection
with his employment hereunder for payments or benefits received under
the provisions of Sections 2.3.1 and 2.3.2 hereof.
1.4 Effective Date means __________________, 1999.
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1.5 Termination For Cause means the termination of
employment of Employee by the Board because of Employee's personal
dishonesty, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful
violation of any material law, rule or regulation resulting in the
Company's detriment or reflecting upon the Company's integrity (other
than traffic infractions or similar minor offenses) or a material
breach by the Employee of the terms of this Agreement and failure to
cure such breach within thirty (30) days after receipt of written
notice from the Company specifying the nature of such breach or to pay
compensation to the Company deemed reasonable by the Company if the
breach cannot be cured. For purposes of this Agreement, Employee's
termination of employment shall not be considered to be a Termination
for Cause unless and until there shall have been delivered to the
Employee a copy of a resolution, duly adopted by the affirmative vote
of not less than sixty-six percent (66%) of the entire membership of
the Board at a meeting called and held for that purpose after
reasonable notice to Employee and an opportunity for him, together with
his counsel, to be heard, finding that, in the good faith opinion of
the Board, Employee is guilty of misconduct of the type described in
this Section 1.5, and specifying the particulars thereof in detail
which determination shall be subject to a complete and de novo review
as to reasonableness and good faith.
1.6 Termination by Employee For Good Reason means the
termination of this Agreement by Employee upon the occurrence of any of
the following events without Employee's consent: (i) assignment of
Employee to any duties substantially inconsistent with his position or
duties contemplated by this Agreement or a substantial reduction of his
duties contemplated by this Agreement; (ii) the removal of any titles
of Employee specified in Section 2.2 of this Agreement; (iii) any
material breach of the Company's obligation under this Agreement or any
failure by the Company to carry out any of its material obligations
hereunder, and the failure to cure such breach or failure within thirty
(30) days after written notice of such breach or failure has been
delivered to the Company by Employee; and (iv) the relocation of
Employee or his corporate office, facilities, or personnel outside the
Phoenix metropolitan area.
1.7 Total and Permanent Disability means an injury or
illness of the Employee that prevents the performance of customary
duties and which is expected to be of long continued and indefinite
duration and that has caused Employee's absence from service for at
least one hundred eighty (180) days.
2. EMPLOYMENT. The Company hereby retains and employs Employee
to serve in the capacity of Vice-President of Operations. Employee accepts such
employment on the terms and conditions set forth herein.
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2.1 Term. The term of this Agreement shall commence
on the Effective Date and shall end, unless previously terminated in
accordance with the provisions of Section 3 hereof, at the close of
business on the day before the second anniversary of the Effective Date
hereof.
2.2 Duties and Responsibilities. Employee's position
shall be Vice-President of Operations. The Vice-President of Operations
of the Company shall have such duties and powers as the Board,
President or Chief Executive Officer may delegate from time to time. At
the request of the President or in the case of absence or disability of
the President, the Vice-President of Operations shall perform the
duties of the President and, when so acting, shall have all powers and
be subject to all obligations of President. Employee shall serve in
such other executive capacities and have such additional titles and
authorities with respect to the Company and its subsidiaries as the
Board may from time to time reasonably prescribe. During the term of
this Agreement, Employee shall devote substantially his entire work
time, attention, and energies to the business of the Company and its
subsidiaries. Subject to the provisions of Section 4 hereof, Employee
may serve as a director or member of any other corporation or entity so
long as any such service does not cause any conflict of interest with
the Company.
2.3. Compensation.
2.3.1 Base Salary. Subject to the further
provisions of this Agreement, the Company agrees to pay to
Employee an annual base salary of $88,000, payable no less
frequently than in accordance with the regular payroll
practices of the Company, with such increases as shall be made
from time to time in accordance with the Company's regular
salary administrative practices as applied to Company
officers. The base salary of Employee shall not be decreased
at any time during the term of this Agreement from the amount
in effect from time to time. Employee shall be entitled and
eligible for bonuses that may be declared from time to time in
the sole discretion of the Board.
2.3.2 Fringe Benefits. Employee shall be
entitled to participate in any fringe benefits which are now
or may hereafter become applicable to the Company's
executives, and any other benefits which are commensurate with
the duties and responsibilities to be performed by the
Employee under this Agreement; including, but not limited to,
reimbursement for reasonable business expenses accounted for
in accordance with applicable governmental regulations; life,
long-term disability and accident insurance plans; employee
saving and investment plans; and medical, dental and
hospitalization insurance plans; without any material
reduction in such fringe benefits as in effect
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on the Effective Date hereof. Employee shall receive 4 weeks
paid vacation and 4 personal days paid vacation per year that
this Agreement is in effect. Effective upon execution of this
Agreement, Employee shall receive _____ options to purchase
_____ shares of Common Stock of the Company at an exercise
price of _____ per share subject to the vesting schedule and
other terms and conditions contained in the stock option
attached hereto as Exhibit "2.3.2" issued pursuant to the
Employee Stock Option Plan (the "Option Plan") attached hereto
as Exhibit "2.3.2(a)."
2.3.3 Participation in Retirement and
Benefit Plans. The Employee shall be entitled to participate
in any retirement, pension, thrift or other retirement or
employee plan that the Company has adopted or may adopt for
the benefit of its senior executives.
3. TERMINATION. Employee's employment under this Agreement
shall terminate upon the occurrence of any one of the following events:
3.1 Total and Permanent Disability. In the event
Employee suffers Total and Permanent Disability, the Company may
terminate Employee's employment. Upon termination by reason of Total
and Permanent Disability, the Company shall pay to Employee such
benefits as may be provided to officers of the Company under any
Company provided disability insurance or similar policy or under any
Company adopted disability plan and in the absence of any such policy
or plan shall continue to pay to Employee for a period of not less than
six (6) months the Compensation then in effect as of the effective date
of Employee's termination. Employee agrees, in the event of any dispute
under this Section as to the existence of Total and Permanent
Disability, to submit to a physical examination by a licensed physician
selected by the Company, the cost of such examination to be paid by the
Company, and the decision as to Employee's disability shall be
conclusive and binding upon the Company and Employee. Nothing contained
herein shall be construed to affect Employee's rights under any
disability insurance or similar policy, whether maintained by the
Company, Employee or another party.
3.2 Death. In the event of the death of Employee this
Agreement shall terminate and all obligations of the Company hereunder
shall be extinguished as of the date of Employee's death. Nothing
contained herein shall be construed to affect any rights of Employee's
estate under any life insurance or similar policy, whether owned by the
Company, the Employee or any third party.
3.3 Termination For Cause. The Company may effect a
Termination For Cause of Employee. The Company shall have no further
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obligation to pay Compensation hereunder after the date of Termination
For Cause.
3.4 Voluntary. Should Employee voluntarily terminate
his employment prior to the termination of this Agreement, the Company
shall have no further obligation to pay compensation.
3.5 Termination By Employee For Good Reason. Employee
shall be entitled to terminate his employment hereunder upon the
occurrence of an event constituting Good Reason, as defined in Section
1.6. If an event constituting Good Reason occurs, Employee shall have
the right, exercisable for a period of thirty (30) days, to immediately
terminate this Agreement by delivering a written statement to that
effect to the Company. Upon such a termination, Employee shall be
entitled to receive a payment equal to the lesser of (i) an amount
equal to one-half of the Employee's annual base salary in effect at the
time of termination, or (ii) the remaining compensation due Employee
under the terms of this Agreement. If Employee fails to exercise his
rights under this Section 3.5 within thirty (30) days following an
event constituting Good Reason, such rights shall expire and be of no
further force or effect.
4. CONFIDENTIALITY.
4.1 Confidential Information. Employee acknowledges
that he has and will have access to trade secrets and confidential
business information of the Company and its affiliates and subsidiaries
throughout the term of this Agreement and that any such trade secret or
confidential information, regardless of whether Employee alone or with
others developed any such trade secret or confidential information,
shall be and shall remain the property of the Company or its affiliates
or subsidiaries. During the term of this Agreement and after
termination of employment, Employee shall not, either voluntarily or
involuntarily, on either his own account, as a member of a firm, or on
behalf of another employer or otherwise, directly or indirectly use or
reveal to any person, partnership, corporation or association any trade
secret or confidential information of the Company or any of its
subsidiaries or affiliates. Such trade secrets shall include, but shall
not be limited to, business plans, marketing plans or programs, any
non-public financial information, including but not limited to,
financial information, forecasts and statistics relating to markets,
contracts, customer lists, compensation arrangements and business
opportunities. The term "trade secrets" shall not include information
generally available to the public or a governmental agency. Employee
will not make available to any person, partnership, corporation or
association, or retain after termination of employment, any Employer
policy manuals, printed materials or computer disc containing
information related to the Company or to any affiliate of the Company.
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4.2 Injunctive Relief. Employee acknowledges that the
restrictions contained in this Section 4 are a reasonable and necessary
protection of the immediate interests of the Company and its affiliates
and subsidiaries and that any violation of these restrictions would
cause substantial injury to the Company. In the event of a breach or
threatened breach by Employee of these restrictions, the Company shall
be entitled to apply to any court of competent jurisdiction for an
injunction restraining Employee from such breach or threatened breach;
provided, however, that the right to apply for an injunction shall not
be construed as prohibiting the Company from pursuing any other
available remedies for such breach or threatened breach.
5. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the Employee, the Company and their respective
heirs, executors, administrators, successors and assigns; provided, however,
that Employee may not assign his rights hereunder without the prior written
consent of the Company and may not assign his obligations hereunder. The Company
may assign either its rights or obligations hereunder to any of its subsidiaries
or affiliated corporation or to any successor to substantially all of the assets
or business of the Company.
6. MODIFICATION, WAIVER OR AMENDMENT. The provisions of this
Agreement may not be modified, amended or waived except by a written instrument
executed by the Company and Employee. The waiver of any provision of this
Agreement by either party shall not constitute a waiver of any subsequent
occurrences or transactions unless the waiver, by its terms, constitutes a
continuing waiver.
7. ARBITRATION. Any disputes related to or arising out of this
Agreement or otherwise relating to Employee's employment with the Company shall
be subject to mandatory binding arbitration before a single arbitrator in
accordance with the rules of the American Arbitration Association ("AAA"),
except that the Company may, in place of or in addition to arbitration, elect to
pursue court remedies for any breach of Section 4 of this Agreement. The
arbitrator shall be selected in accordance with the AAA's rules for selecting a
single arbitrator provided that, if AAA rules call for selecting an arbitrator
by making strikes against a list of candidates, in the event that there is an
odd number of candidates Employee shall have the first strike and in the event
that there is an even number of candidates the Company shall have the first
strike. Except to the extent contrary to this Agreement or the Company's written
policies regarding arbitration with Employee, the procedural rules that shall
govern the arbitration shall be the rules of the AAA, or in the event that a
particular procedural issue is not governed by the foregoing, the Arizona Rules
of Civil Procedure shall apply except that discovery may be conducted only upon
agreement of the parties or order of the arbitrator upon good cause shown, and
in issuing discovery orders, the arbitrator shall consider that the parties have
chosen arbitration to provide for the efficient and inexpensive resolution of
disputes.
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The forum for the arbitration shall be Phoenix, Arizona. The applicable
substantive law shall be the law chosen to apply to disputes provided by this
Agreement. A party may initiate arbitration under this Section by making a
demand for arbitration and shall serve with that demand a detailed statement
setting forth with particularity the factual and legal basis for each claim
asserted. In the event that the party initiating arbitration fails to serve on
the opposing party the detailed statement of claims required by this Section,
the opposing party shall be entitled to move to dismiss the arbitration, and
upon such motion, such claims shall be dismissed. Upon the issuance of a
decision, the arbitrator shall issue written findings of fact and conclusions of
law. The decision of the arbitrator shall be in accordance with the express
terms and conditions of this Agreement. Each party shall pay its own attorneys'
fees and costs and shall share the arbitration fees provided that the
nonprevailing party shall reimburse the prevailing party for all reasonable
attorneys' fees and costs, including the arbitration fees, incurred in
connection with the arbitration. Arbitration proceedings and any information
related thereto shall be kept confidential. THE PARTIES ACKNOWLEDGE THAT THEIR
AGREEMENT TO ARBITRATE UNDER THIS SECTION MEANS THAT TRIAL BY JURY OR APPEAL
WILL NOT BE AVAILABLE FOR ANY DISPUTES RELATED TO OR ARISING OUT OF THIS
AGREEMENT OR OTHERWISE RELATING TO EMPLOYEE'S EMPLOYMENT WITH THE COMPANY
INCLUDING WITHOUT LIMITATION DISPUTES INVOLVING ALLEGED EMPLOYMENT
DISCRIMINATION, HARASSMENT, WRONGFUL TERMINATION, AND ANY OTHER CLAIMS ARISING
OUT OF FEDERAL OR STATE STATUTES, COMMON LAW OR PUBLIC POLICY, EXCEPT THAT THIS
SECTION DOES NOT RESTRICT THE RIGHT TO PURSUE COURT REMEDIES FOR ANY BREACH OF
SECTION 4 OF THIS AGREEMENT.
8. NO MITIGATION. Any compensation earned by Employee from
another employer or from employment not in violation of the provisions of
Section 2.2 or Section 4 hereof shall not reduce any payment to which Employee
is entitled under the terms of this Agreement.
9. MISCELLANEOUS.
9.1 Entire Agreement. This Agreement
rescinds and supersedes any other agreement and contains the
entire understanding between the parties relative to the
employment of Employee, there being no terms, conditions,
warranties, or representations other than those contained or
referred to herein, and no amendment hereto shall be valid
unless made in writing and signed by both of the parties
hereto.
9.2 Governing Law. This Agreement shall be
interpreted and construed in accordance with the laws of the
State of Arizona without regard to conflicts of law principles
as applied to residents of Arizona.
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9.3 Severability. In the event that any
provisions herein shall be legally unenforceable, the
remaining provisions nevertheless shall be carried into
effect.
9.4 Attorneys' Fees. In the event of any
litigation between the parties hereto arising out of the
terms, conditions and obligations expressed in this Agreement,
the prevailing party in such litigation shall be entitled to
recover reasonable attorneys' fees incurred in connection
therewith.
9.5 Notices. All notices required or
permitted to be given hereunder shall be deemed given if in
writing and delivered personally or sent by telex, telegram,
telecopy, or forwarded by prepaid registered or certified mail
(return receipt requested) to the party or parties at the
following addresses (or at such other addresses as shall be
specified by like notices), and any notice, however given,
shall be effective when received:
To Employee: Xxxx Xxxxxxx
00000 Xxxxx 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
To the Company: iBIZ TECHNOLOGY CORP.
Xxxxx 000-000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx X0X 0X0
9.6 Waiver. The waiver by any party of a breach of
any provision of this Agreement by the other shall not operate or be
construed as a waiver of any subsequent breach of the same provision or
any other provision of this Agreement.
9.7. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
9.8 Headings. The subject headings to the sections in
this Agreement are included for purposes of convenience only and shall
not affect the construction or interpretation of any of its provisions.
9.9 Survivorship. The provisions of Sections 3.1,
4.1, 4.2, 7 and 8 shall continue and shall survive the termination of
the Agreement.
9.10 Integration. This Agreement reflects the entire
agreement of the parties related to the subject matter hereof, and any
prior
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understandings, agreements or representations relating to such subject
matter are hereby superseded, and Employee hereby expressly
acknowledges that this Agreement supersedes and replaces Employee's
Employment Agreement with INVNSYS Technology Corporation and Employee
hereby waives and releases INVNSYS Technology Corporation from all
claims for compensation and other benefits as of the effective date of
Employee's employment with the Company.
In witness whereof, the parties have executed this Agreement
on ___________________, 1999, and effective as of the date first hereinabove
written.
iBIZ TECHNOLOGY CORP.,
a Florida corporation
By:
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Its:
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EMPLOYEE
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XXXX XXXXXXX
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EXHIBIT "2.3.2"
EMPLOYEE STOCK OPTION
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EXHIBIT "2.3.2(a)"
EMPLOYEE STOCK OPTION PLAN
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ADDENDUM TO EMPLOYMENT AGREEMENT
THIS ADDENDUM TO EMPLOYMENT AGREEMENT ("this Addendum") is
entered into effective as of the ____ day of ______________, 1999, by and
between iBIZ TECHNOLOGY CORP., a Florida corporation ("iBIZ"), INVNSYS
TECHNOLOGY CORPORATION, ("INVNSYS") (iBIZ and INVNSYS are referred to
collectively as the "Company") and XXXX XXXXXXX, an individual ("Employee").
iBIZ and the Employee entered into that certain Employment Agreement dated March
5, 1999 ("Employment Agreement"), which, among other things, provided for the
issuance of certain options to purchase shares of common stock of iBIZ. iBIZ and
Employee desire to amend the provisions relating to the options under such
Employment Agreement.
THEREFORE, in consideration of the covenants and agreements
set forth in the Employment Agreement and this Addendum and other good and
valuable consideration, the parties agree as follows:
5. OPTIONS. In lieu of the options that were to be issued to
Employee under the Employment Agreement, the Company and Employee hereby agree
that iBIZ shall issue to Employee 350,000 options to purchase 350,000 shares of
common stock of iBIZ at an exercise price of $0.75 per share. Such options shall
be subject to the vesting schedule and other terms and conditions contained in
the stock option attached to the Employment Agreement issued pursuant to the
Employee Stock Option Plan attached to the Employment Agreement. A total of
300,000 options shall be issued to Employee in consideration of Employee's
services as an officer of iBIZ and 50,000 options shall be issued to Employee in
consideration of Employee's services as a director of iBIZ. The effective date
of the issuance of the foregoing options shall be April 22, 1999.
6. EFFECT OF ADDENDUM. Except as amended by this Addendum, the
terms and conditions of the Employment Agreement shall remain unchanged. This
Addendum is hereby incorporated into the Employment Agreement as though
originally a part thereof.
IN WITNESS WHEREOF, the parties have executed this Addendum as
of the effective date set forth above.
iBIZ TECHNOLOGY CORP.
By:
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Xxx Xxxxxxxxx, President
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XXXX XXXXXXX
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