EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made as of the 1st day
of October, 2003, by and between INTEGRATED BUSINESS SYSTEMS & SERVICES, INC., a
South Carolina corporation (the "Company") and XXXXXX X. XXXXX ("Employee").
WHEREAS, the Company desires to continue to employ Employee, and
Employee desires to be employed by the Company, in accordance with the terms and
conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual promises herein set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be legally bound, agree
as follows:
1. Employment. The Company hereby agrees to continue to employ
Employee to perform the duties described below subject to and in accordance with
the terms and conditions hereof, and Employee hereby accepts such employment. In
accepting continued employment by the Company, Employee shall continue to assume
the responsibility of performing for and on behalf of the Company the duties of
Vice President of Business Development of the Company.
2. Term. The continued term of employment hereunder shall
commence on January 1, 2004 and unless earlier terminated in accordance with
Section 5 hereof, shall continue for a term of Four (4) years ending on December
31, 2007. This Agreement shall be automatically renewed for additional terms of
one (1) year, unless no less than one hundred eighty (180) days prior to the end
of the then current term of this Agreement the Company notifies Employee in
writing or Employee notifies the Company in writing of the intention not to
renew this Agreement. References to this Agreement's term shall mean the initial
term and all successive terms unless the context clearly indicates otherwise.
3. Compensation. As compensation for the services to be rendered
by the Employee for the Company under this Agreement, Employee shall be
compensated as follows:
(a) Salary. Employee shall be compensated by the Company on the
basis of a minimum annual base salary ("Salary") of One Hundred Fifteen Thousand
($115,000) Dollars commencing on the effective date of this Agreement. Such
Salary shall be payable in pay periods as determined by the Company, but in no
event less frequently than semi-monthly. The Salary payable to Employee for each
twelve (12) month period during the term of this Agreement following the first
anniversary of the effective date of this Agreement shall be reviewed by the
Board of Directors (or an appropriate committee of the Board), and may be
increased if the Board of Directors (or such committee) determines that an
increase is appropriate.
(b) Bonuses. In addition to the Salary, Employee shall also be
eligible to receive one or more bonuses, annually or more frequently, the amount
and grant of which shall be at the direction of the Company.
(c) Vacation and Leaves of Absence. In addition to all regular
Company holidays, the Company shall provide Employee with twenty (20) business
days of paid vacation time during each calendar year during the term of
employment hereunder. Such vacation days are to be taken at such time or times
as Employee may reasonably request, subject to the Company's convenience and
prior approval, which approval shall not be unreasonably withheld. The Company
may grant additional vacation time and time off in its sole discretion.
(d) Reimbursement for Expenses. The Company shall provide
reimbursement of all reasonable expenses incurred by Employee for the benefit of
the Company in the performance of Employee's duties hereunder, provided that
reasonable written documentation is provided to the Company in support of such
reimbursement.
(e) Other Benefits. The Company shall provide at its expense other
benefits (e.g., health insurance coverage (including payment of benefits under
COBRA), disability insurance coverage, retirement plan participation, etc.)
reasonably comparable to, and no less favorable to Employee than, those benefits
generally provided to other senior executives of the Company.
4. Stock Options. As a material inducement to Employee to enter
into this extended Agreement, the Company shall grant to Employee effective the
date hereof and pursuant to the Company's Stock Option Plan (the "Plan") or
directly outside of the Plan as set forth below:
(a) Incentive Stock Options: Incentive Stock options shall be
provided to Employee to purchase a total of Eight Hundred
Thousand (800,000) shares of the Company's common stock at an
exercise price per share of fourteen cents ($0.14) which is
the closing stock price as of September 30, 2003 and the
average closing stock price for the prior twenty trading days.
Three Hundred Thousand options (300,000) shall vest as of
October 1, 2003 and Five Hundred thousand options (500,000)
shall vest October 1, 2005. It is intended that such options
shall be structured to satisfy the requirements of Section
422A of the Internal Revenue Code and shall be designated as
incentive stock options.
(b) Agreements and Adjustments. The Company and Employee shall
execute and deliver appropriate Stock Option Agreements in the form contemplated
by the Plan or otherwise as necessary to reflect the grant of options hereunder.
Consistent with the adjustments contemplated with respect to options granted
under the Plan, all option amounts and exercise prices shall be adjusted for any
subsequent stock splits, stock dividends, recapitalizations or similar events.
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(c) Change in Control. Notwithstanding any vesting provisions
identified in this Section 4, upon the occurrence of a "Change in Control" of
the Company as defined herein, all unvested options granted pursuant to this
Section 4 shall immediately vest and become fully exercisable and remain
exercisable throughout their entire term. For purposes of this Agreement, the
term "Change in Control" shall mean that any one of the following events shall
have occurred: (i) a person, partnership, joint venture, corporation or other
entity, or two or more of any of the foregoing acting as a group (or a "person"
within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), other than the Company, a majority-owned subsidiary
of the Company, an employee benefit plan (or related trust) of the Company or
such subsidiary, (A) directly or indirectly become(s) after the effective date
of grant of the stock options hereunder the "beneficial owner" (as defined in
Rule 13(d)(3) under the 0000 Xxx) of 15% or more of the then outstanding voting
stock of the Company or (B) makes a tender offer for 15% or more of the
outstanding voting securities of the Company; or (ii) individuals who constitute
a majority of the Board of Directors at the effective date hereof, or
individuals elected or nominated directly or indirectly by at least a majority
of such current directors, no longer constitute a majority of the Company's
Board of Directors'; or (iii) the Company enters into (A) a plan of complete
liquidation of the Company or (B) an agreement for the sale or disposition of
all or substantially all of the Company's assets (other than to a subsidiary of
the Company); or (C) a merger, consolidation, or reorganization of the Company
with or involving any other corporation, other than a merger, consolidation, or
reorganization that would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least seventy-five percent (75%) of the combined voting
power of the voting securities of the Company (or such surviving entity)
outstanding immediately after such merger, consolidation or reorganization.
5. Termination.
(a) For Cause by the Company. Notwithstanding any other provision
hereof, the Company may terminate Employee's employment under this Agreement at
any time "for cause." For purposes hereof, the term "for cause" means one of the
following acts by Employee: theft or embezzlement from the Company; knowingly
falsifying Company records; conviction for a felony; or a material violation of
the terms and provisions of this Agreement which remains uncured by the Employee
fifteen (15) days after notice from the Company to Employee of such violation.
All compensation (including, without limitation the Salary and all perquisites
and fringe benefits, but excluding vested stock options) to which Employee would
otherwise be entitled for periods after the effective date of such termination
shall be discontinued and forfeited as of the effective date of such
termination. Employee shall not be deemed to have been terminated "for cause"
without delivery to Employee of a written notice of termination from the Company
explaining the Company's intention to terminate Employee "for cause" and
specifying in reasonable detail the facts and circumstances that are the basis
for terminating Employee's employment; and providing an opportunity for Employee
to cure any curable
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default specified in such notice of termination for a period of fifteen (15)
days after Employee's receipt of such notice.
(b) Without Cause By the Company/ For Good Reason by Employee. The
Company may voluntarily terminate this Agreement "without cause" upon sixty (60)
days prior written notice to Employee, and Employee may voluntarily terminate
this Agreement "for good reason" upon sixty (60) days prior written notice to
the Company. For purposes hereof, the term "for good reason" shall include, but
not be limited to, the commission of any of the following by the Company:
reduction of Employee's minimum base salary; assignment to Employee of duties
inconsistent with his duties, responsibilities or status with the Company as
Vice President of Business Development ; material change in Employee's reporting
responsibilities, title or office; diminution in Employee's employee benefits;
failure to cure any Company breach of this Agreement within fifteen (15) days
following the Company's receipt from Employee of written notice of such breach.
In the event of such termination, all compensation (including without limitation
the Salary and any perquisites and fringe benefits, if any) to which Employee
would otherwise be entitled (for periods after the effective date of the
termination) shall be discontinued and forfeited as of the effective date of
such termination. Notwithstanding the foregoing, upon the occurrence of such
termination by the Company "without cause" or by Employee "for good reason" (as
such term is defined above) the following shall occur:
(i) Employee shall be paid any and all accrued and unpaid Salary,
bonuses and any and all unreimbursed expenses for periods prior and up to the
effective date of termination, and Employee shall be paid the aggregate Salary
that Employee would otherwise have been entitled to receive during the remaining
term of this Agreement had Employee's employment not terminated;
(ii) Employee shall be paid severance compensation equal to
eighteen (18) months of base Salary at the rate of base Salary in effect
immediately preceding the date of termination but never less than the base
salary listed in 3 (a) above;
(iii) all unvested options granted pursuant to Section 4 hereof and
all unvested options granted subsequent to the effective date of this Agreement
shall immediately vest; and
(iv) Employee shall receive from the Company, at the Company's
expense, all benefits set forth in Section 3 (e) for one (1) year following such
termination; provided however, that during such period, should a third party
provide any such benefit(s) to Employee, the Company's obligation pursuant to
this paragraph to provide the benefit(s) being so provided by the third party
shall be reduced by the amount and to the extent such benefit(s) is (are)
provided to Employee by such third party.
The Company shall pay the amounts set forth under paragraphs 5(b)(i)
and 5(b)(ii) above in a lump sum amount within thirty (30) days after Employee's
date of termination of employment under this Section 5(b). Termination of
Employee's
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employment hereunder by reason of the death of Employee or the "permanent and
total disability" (as that term is defined and construed under Section 22 (e)
(3) of the Internal Revenue Code of 1986, as amended, and any regulations or
rulings promulgated there under) of Employee shall be deemed termination of this
Agreement pursuant to this Section 5 (b).
(c) Termination Without Cause by Employee. Employee may
voluntarily without cause terminate this Agreement upon sixty (60) days prior
written notice to the Company. In the event of such termination (unless such
termination is by Employee "for good reason" as such term is defined above), all
compensation (including without limitation the Salary and all perquisites and
fringe benefits, but excluding any vested stock options) to which Employee would
otherwise be entitled for periods after the effective date of such termination
shall be discontinued and forfeited as of the effective date of such
termination.
(d) Change in Control. Notwithstanding the operation of the other
provisions of this Section 5, upon any termination of this Agreement by the
Company following the occurrence of a "Change in Control" as that term is
defined in Section 4 hereof, the Company shall be obligated to pay the amounts
and provide the benefits set forth in paragraphs (i) through (iv) of Section 5
(b) hereof in accordance with the terms of Section 5 (b).
The Company's obligations under Section 5 (b) hereunder shall survive
the expiration of and any earlier termination of Employee's employment
hereunder.
6. Confidentiality and Secrecy. Employee acknowledges that in and
as a result of Employee's employment hereunder, Employee will be making use of,
acquiring and/or adding to confidential information of a special and unique
nature and value relating to the Company's business, including without
limitation technological know-how, copyrights, proprietary information, trade
secrets, systems, procedures, manuals, confidential reports, records, lists of
customers and projects, the nature and type of services rendered by the Company,
the equipment and methods used and preferred by the Company's customers, and the
fees paid by them (all of which are deemed for all purposes confidential and
proprietary). As a material inducement to the Company to enter into this
Agreement and to pay to Employee the compensation stated in Sections 3 and 4,
Employee covenants and agrees that during the term of Employee's employment
hereunder, and for two (2) years after the expiration or earlier termination of
Employee's employment hereunder, Employee shall not without the prior written
consent of the Company, directly or indirectly, make use of, or disclose to any
person, any confidential information of the Company or its affiliates.
7. Covenants Against Competition. Employee acknowledges and
understands that during the term of this Agreement, the Company intends to
conduct its operations on a nationwide basis which may involve all or
substantially all of the United States of America and various foreign countries.
In view of the unique value to the
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Company of the services of Employee for which the Company has contracted
hereunder, because of the confidential information to be obtained by or
disclosed to Employee, as hereinabove set forth, and because Employee's
employment hereunder will result in Employee's development of a unique
relationship with customers, suppliers, service providers and employees, as a
material inducement to the Company to enter into this Agreement and to pay to
Employee the compensation stated in Sections 3 and 4, Employee covenants and
agrees as follows:
(a) During Employee's employment by the Company, and for a period
expiring on the date two (2) years after the earlier to occur of the expiration
of this Agreement or the earlier termination of Employee's employment hereunder
for any reason other than the Company's termination of Employee "without cause"
pursuant to Section 5 (b) hereof or Employee's termination "for good reason"
pursuant to Section 5 (b) hereof, Employee shall not directly or indirectly
solicit, divert or convert, or assist another person or entity to solicit,
divert or convert, customers or employees of the Company or an affiliate of the
Company to any other company or entity providing substantially the same or
competitive services or products as the Company or an affiliate of the Company.
(b) During Employee's employment by the Company, and for a period
expiring on the date two (2) years after the earlier to occur of the expiration
of this Agreement or the earlier termination of Employee's employment hereunder
for any reason other than the Company's termination of Employee "without cause"
pursuant to Section 5 (b) hereof or Employee's termination "for good reason"
pursuant to Section 5 (b) hereof, Employee shall not within the geographic area
specified below engage in any business or perform any services, directly or
indirectly in competition with the business of the Company or any affiliate of
the Company, or have any interest, whether as a proprietor, partner, employee,
controlling stockholder (directly or beneficially), principal, agent,
consultant, director, officer or in any other capacity or manner whatsoever, in
any enterprise that shall so engage, or otherwise be a controlling person of, or
a member of a group that controls, such enterprise or be otherwise affiliated in
any capacity with such enterprise. The restrictions of this Section 7 (b) shall
apply in every state, territory or other jurisdiction in which the Company is
conducting its operations or maintains an office or branch at any time during
the term of this Agreement.
An exemption to the above clause for Xxxxxx X. Xxxxx is his position on
the Board of Directors and partial ownership in RDS Solutions, Inc., located in
Wingate, NC. This association pre-dated Xx. Xxxxx'x employment with IBSS and
does not represent a conflict of interest. RDS Solutions' primary business is
renting project management staff to state government agencies.
8. Reasonableness, Enforceability and Remedies.
(a) Employee has carefully read and considered the provisions of
Sections 6, 7 and 8, and having done so, agrees that the restrictions set forth
in these Sections, including but not limited to, the time period of restriction
and geographic limitations set forth in Section 7, are fair and reasonable and
are reasonably required for the protection
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of the interests of the Company and its officers, directors, shareholders,
employees, and affiliates.
(b) In the event that, notwithstanding the foregoing, any of the
provisions of Sections 6, 7 and 8 or any parts thereof shall be held to be
invalid or unenforceable, the remaining provisions or parts thereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable portions or parts had not been included therein. In the event that
any provision of Sections 6 or 7 relating to the time period and/or geographic
restrictions and/or related aspects shall be declared by a court of competent
jurisdiction to exceed the maximum restrictiveness such court deems reasonable
and enforceable, the time period and/or geographic restrictions and/or related
aspects deemed reasonable and enforceable by the court shall become and
thereafter be the maximum restrictions in such regard, and the restriction shall
remain enforceable to the fullest extent deemed reasonable by such court.
(c) Employee acknowledges that the services Employee is to render
are of a special and unusual character with a unique value to the Company, the
loss of which cannot adequately be compensated by damages in an action at law.
In the event of a breach or threatened breach by Employee of any of the
provisions of Sections 6 and 7, the Company, in addition to and not in
limitation of, any other rights, remedies or damages available to the Company
under this Agreement, shall be entitled to a permanent injunction in order to
prevent or restrain any such breach by Employee or by Employee's partners,
agents, representatives, servants, employers, employees, consulting clients,
and/or any and all persons directly or indirectly acting for or with Employee.
(d) Employee's obligations under Sections 6 and 7 shall survive
the expiration of and any earlier termination of Employee's employment
hereunder.
9. Notice. Any notice, request, approval, consent, demand or
other communication hereunder shall be effective in writing and upon the first
to occur of the following: (i) upon receipt by the party to whom such notice,
request, approval, consent, demand or other communication is being given; (ii)
three (3) business days after being duly deposited in the U. S. Mail, certified,
return receipt requested, and addressed as follows:
Employee: XXXXXX X. XXXXX
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Employer: Integrated Business Systems & Services, Inc.
0000 Xxxx Xxxx, Xxxxx X
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
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The parties hereto may change their respective addresses by notice in
writing given to the other party to this Agreement.
10. Waiver. Any waiver by either party of any breach or any term
or condition hereof shall be effective only if in writing and such writing shall
not be deemed to be a waiver of any subsequent or other breach, term or
condition of this Agreement.
11. Governing Law/Jurisdiction. The construction and
interpretation of this Agreement shall at all times and in all respects be
governed by the laws of the State of South Carolina. The parties hereby (i)
agree that any litigation, action or proceeding arising out of or relating to
this Agreement may be instituted in a state or federal court in the State of
South Carolina, (ii) waives any objection which it might have now or hereafter
to any such litigation, action or proceeding based upon improper venue or
inconvenient forum, and (iii) irrevocably submits to the jurisdiction of such
courts in any such litigation, action or proceeding. For all purposes of this
Agreement, the parties hereby further agree that service of process upon any
party may be effected pursuant to United States mail.
12. Burden and Benefit. This Agreement shall be binding upon, and
shall inure to the benefit of, the Company and Employee, and their respective
heirs, personal and legal representatives, successors and permitted assigns.
13. Assignment/Modification/Severability. This Agreement and
rights hereunder are personal to Employee and shall not be assigned or otherwise
transferred by Employee. Subject to the rights of Employee under Section 5
hereunder, the Company shall be entitled to assign this Agreement to any
corporation controlled by the Company. This Agreement can only be modified by a
written agreement duly signed by authorized representatives of the parties
hereto. The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any one or more of the provisions of this
Agreement shall not affect the validity and enforceability of the other
provisions. Without limiting the generality of the foregoing or of Section 8,
each provision, sub-provision, part, and sub-part of Sections 7 and 8 shall be
deemed severable.
14. Usage. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Terms such as "hereof",
"hereunder", "hereto", "herein", and words of similar import shall refer to this
Agreement in its entirety and all references shall refer to specified portions
of this Agreement, unless the context clearly requires otherwise.
15. Entire Agreement. This Agreement contains the entire agreement
and understanding by and between the Company and Employee with respect to the
subject matter hereof and supersedes all prior and contemporaneous written or
oral agreements (other than the agreements contemplated in Section 4 hereof) and
representations between the parties with respect thereto.
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16. No Inference Against Author. No provision of this Agreement
shall be interpreted against any party because such party or its legal
representative drafted such provision.
IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement under seal to be effective as of the day and year first above written.
EMPLOYEE:
/s/ Xxxxxx X. Xxxxx (SEAL)
-------------------
XXXXXX X. XXXXX
INTEGRATED BUSINESS SYSTEMS & SERVICES, INC.
BY: /s/ Xxxxxx X. Xxxxxxxxxx (SEAL)
------------------------
XXXXXX X. XXXXXXXXXX
ITS: Chief Executive Officer
APPROVED BY THE COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS
BY: /s/ Xxxx Xxxxxx Xxxxxx, Jr. (SEAL)
---------------------------
ITS: CHAIRPERSON
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