Exhibit 10.47
INTEGRATED INFORMATION SYSTEMS, INC.
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EXECUTIVE EMPLOYMENT AGREEMENT
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This Agreement entered into and effective as of the 16th day of May,
2002 (the "Effective Date") by and between INTEGRATED INFORMATION SYSTEMS, INC.,
a Delaware corporation with its principal place of business located at 0000
Xxxxx Xxxxxxx Xxxxx, Xxxxx, Xxxxxxx, 00000 (hereinafter called "Employer"), and
XXXXXXX XXXXX (hereinafter called "Employee").
RECITALS:
WHEREAS, Employer is a corporation organized and incorporated under the
laws of the State of Delaware, and has its principal office in Maricopa County,
Arizona;
WHEREAS, Employee is an individual residing in Maricopa, and is a
citizen of the State of Arizona;
WHEREAS, the parties to this Agreement have had a full and fair
opportunity to review and discuss the terms of this Agreement and consult with
independent legal counsel so that they have a full and complete understanding of
the legal and practical significance of each of the provisions of this
Agreement;
WHEREAS, Employee voluntarily and freely desires to accept such
employment under the terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the foregoing premises and of the
conditions hereinafter set forth, it is hereby agreed as follows:
AGREEMENT:
1. General Terms of Employment.
As of May 15, 2002, Employee is to be employed according to the terms
of this Agreement and Employer's policies and procedures as they relate to
regular, fulltime employees, as they exist as of the Effective Date of this
Agreement or may be changed from time to time, in the full-time position of
Senior Vice President of Sales and Marketing (the "Position").
Employee's duties and responsibilities shall be as follows:
(i) Promoting and increasing cross selling across all divisions;
(ii) Designing and delivering a corporate sales and marketing
plan;
(iii) Maintaining and reporting corporate pipeline, booked backlog
and revenue forecast;
(iv) Delivery of sales force automation;
(v) Publishing weekly non-financial press releases;
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(vi) Management of inside sales group;
(vii) Productization of service offerings;
(viii) Maintaining and communicating Microsoft engagement best
practices;
(ix) Maintaining Microsoft corporate relationships and
initiatives;
(x) Discovering and acquiring resources and potential
investment from strategic industry partners;
(xi) Management of sales processes and business development
methodology;
(xii) Conducting weekly calls and reporting sales metrics, and
forced rankings corporate wide of sales performance;
(xiii) Coordinating seminars and events;
(xiv) Participating in weekly operations calls with divisions to
focus on sales efforts in each division;
(xv) Re-branding IIS 2.0.
Employee shall also perform such other duties as are commonly associated with
this Position, or as may be assigned orally or in writing by the Chief Executive
Officer.
2. Compensation.
(a) Employer agrees to pay Employee an initial annual salary of One
Hundred Fifty Thousand Dollars ($150,000.00), subject to employment taxes and
other payroll deductions as may be required by law or requested by Employee.
Employee will also be eligible for a quarterly bonus (payable on or before 30
days after the end of the quarter). The bonus will be a one percent (1%)
override on divisional EBIT with a floor of $750,000 per quarter in the third
quarter of 2002, and a floor of $960,000 per quarter in the fourth quarter of
2002 and thereafter.
(b) During the term of this Agreement, Employer shall provide to
Employee those benefits provided to all other full time employees of Employer
generally from time-to-time, including, but not limited to, health coverage,
dental coverage, 401(k), and life and disability coverage. Such health and life
insurance benefits provided to Employee shall be paid for by the Employer to the
extent provided under Employer's standard employee benefit plans. Such health
and life insurance benefits provided to Employee's spouse and dependents (which
are provided at the election of Employee) shall be paid one-half by Employer and
one-half by Employee to the extent provided under Employer's standard employee
benefits plans. Upon presentment of proper documentation and receipts, Employer
will reimburse Employee for out of pocket expenses reasonably incurred in
connection with the performance of duties in accordance with Employer's
policies.
(c) Subject to approval by Employer's Board of Directors, Employee
shall be granted stock options, pursuant to a separate Employer Stock Option
Agreement, to purchase 200,000 shares of Employer's common stock (the "Stock")
at a per share exercise price equal to the closing price of Employer's common
stock on the day of grant and with an exercise term of ten (10) years (the
"Stock Options"). The Stock Options shall vest one sixth (1/6th) each six months
until fully vested three (3) years from the Effective Date.
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3. Term of Agreement.
The term of this Agreement shall continue until earlier terminated in
accordance with this paragraph 3. Employee may terminate this Agreement at any
time upon three (3) weeks' prior written notice to Employer. If Employee
terminates this Agreement, Employee will perform all job duties to the maximum
of his ability during the notification period. Employer may terminate Employee's
employment with or without cause as specified below.
(a) Termination for Cause. As used in this Agreement, the term "for
cause" shall mean and include, as determined by Employer in its good faith
judgment after reasonable investigation, Employee's: (i) conviction of a felony
under the laws of the United States or any state or political subdivision
thereof; (ii) willful engagement in conduct constituting breach of a known
fiduciary duty, willful misconduct or recklessness relating to the Employer or
the performance of Employee's duties, or fraud; (iii) willful breach of any
non-compete, non-solicit or confidentiality obligations owed to Employer
(whether contained in this Agreement or otherwise) in any material respect; (iv)
willful failure to follow a proper and reasonable directive of the Employer
within the scope of Employee's duties (which shall be capable of being performed
by Employee with reasonable effort); (v) failure to substantially meet or
satisfy mutually agreed upon business unit requirements after written notice
referencing this subparagraph, specifying the performance required and
Employee's failure to perform, within sixty (60) days after such notice. If
Employer terminates Employee's employment for cause, Employee shall be entitled
to a distribution of pay up to and including the date of Employee's termination.
Upon the date of such termination for cause, Employee's benefits will cease,
subject to applicable COBRA laws and regulations in effect at such time, and
Employer shall provide to Employee a written statement setting forth the reasons
for Employee's for cause termination. Employee, however, shall be entitled to
any expense reimbursement, draw, commission, bonus, or other incentive that has
accrued to Employee's benefit up to the date of such for cause termination.
(b) Termination Without Cause. If Employer terminates Employee without
cause, Employee will be entitled to one (1) month severance pay from Employer,
commencing on the date of termination (the "Severance Period") which severance
pay will be based on Employee's base pay and will be paid to Employee on the
regular due dates thereof. Employer has the option to extend the Severance
Period by paying corresponding additional severance pay for the number of days
extended. During the Severance Period, Employee shall be entitled to full
benefits. At Employee's request, at any time after Employee's for cause or
without cause termination, Employer shall, when contacted by another employer
for a reference regarding Employee, confirm only that Employee worked for
Employer and the dates of such employment. For purposes of this Agreement,
Employee's voluntary termination of his employment following Employer's
significant decrease of Employee's base salary which is not an across-the-board
cut, or Employee's demotion, shall be deemed to be termination of Employee's
employment by Employer without cause.
4. Vacation.
Employee shall be entitled to accrue three (3) weeks paid vacation per
year.
5. Non-Compete.
Employer requires its executive employees to accept and observe the
following partial restraint on post-termination competition, which Employee
agrees to honor. As a material part of the consideration given for this
Agreement, during the term of this Agreement and for a period of twelve (12)
months following the termination of Employee's employment if For Cause or
Voluntary, Employee agrees that he or she will not, directly or indirectly, be
connected in any manner whatsoever with the ownership, management, operation,
control, or financing of, and that he or she will not own, manage, operate,
control, be employed by, be associated with as an independent contractor,
participate in, finance, consult, or advise: (i) any customer or prospective
customer of Employer in a manner that competes with Employer; or (ii) any
business or corporation which competes with Employer. For purposes of this
Agreement, a "customer" is
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defined as a person, business, organization, company, or any other entity with
whom Employer provided services to during the one (1) year immediately preceding
Employee's date of termination. A "prospective customer" is defined as a person,
business, organization, company, or any other entity with whom Employer has
begun substantive discussions to perform work or submitted a bid or proposal
during the one (1) year period preceding Employee's date of termination. For
purposes of this Agreement, "competes" shall mean the providing of services as a
business or contractor of technology strategy consulting, creative design,
application development, network infrastructure services, application management
services, and hosting services of business on the Internet. The running of the
twelve (12) month period prescribed in this covenant shall be tolled and
suspended by the length of time Employee works in circumstances that a court of
competent jurisdiction subsequently finds to violate the terms of this partial
restraint. Such provision shall survive the termination of this Agreement. If
Employee is terminated by Employer without cause, then upon completion of the
Severance Period, Employee shall not be restrained from competing with Employer,
or from soliciting Employer's employees, prospective customers, or customers.
Subject to the foregoing, Employee shall remain bound by the obligations under
Sections 6 and 9 below. This paragraph 5 shall survive the termination of this
Agreement.
6. Non-Solicitation.
Subject to Section 5 above, Employee agrees that, during the term of
this Agreement, and for a period of two (2) years after termination of
employment, he or she will not, either directly or indirectly, for himself or
herself or for any other party, divert or attempt to divert any existing
business or employees of Employer, or induce, solicit, canvass or call upon (or
attempt to induce, solicit or canvass) any customer of Employer or employee of
Employer from continuing to do business with Employer and/or to do business with
a competitor of Employee. A customer is defined as a person, business,
organization, company, or any other entity with whom Employer provided services
to or did business with during the two (2) years immediately preceding
Employee's date of termination (whether termination is voluntary or
involuntary). Such provision shall survive the termination of this Agreement.
7. Cellular Telephone.
During the term of Employee's employment, Employee shall be entitled to
the use of a cellular phone of his or her choosing. The monthly service and fees
for such telephone shall be either directly billed to or reimbursed by Employer.
8. Telecommuting.
During the term of this Agreement, Employee may telecommute at such
times as are appropriate as long as such telecommuting does not interfere with
Employee's duties and responsibilities.
9. Confidentiality and Return of Information.
Employee's position with Employer requires considerable responsibility
and trust. Relying on Employee's undivided loyalty as pledged by this Agreement,
Employer expects to entrust to Employee highly sensitive confidential,
restricted, and proprietary information involving Employer's business, including
Trade Secrets. It could prove very difficult to isolate this protected
information from business activities that Employee might consider pursuing after
termination of Employee's employment with Employer, and in some instances,
Employee may not be able to compete with Employer in certain ways because of the
risk that Employer's confidential and proprietary information might be
compromised. Employee is legally and ethically obligated to restrict his use of
Employer's proprietary rights only to Employer's benefit, and this obligation
may impose limitations on Employee's ability to pursue certain business
opportunities that might interest Employee during or after his or her
employment.
For purposes of this Agreement, the term "Trade Secrets" includes all
information and materials which Employee might obtain, be exposed to, or develop
in the course of Employee's employment with Employer and which could provide any
value, actual or potential, from not being generally known to, and
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not being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use. Specifically, this can include all
information which is either:
(a) Applicable to the business of Employer; or
(b) Applicable to the business of any client or vendor/partner of
Employer, which may be made known to Employee or learned by Employee in such
context during the period of his or her employment.
"Trade Secrets" also includes, but is not limited to, any and all
technical and non-technical information including patent, copyright, trade
secret, and proprietary information, techniques, sketches, drawings, models,
inventions, know-how, negative know-how, processes, apparatus, equipment,
algorithms, improvements, software programs, software source code, software
object code, software source documents, multimedia works, graphics, photographs,
images, online products, audiovisual works, audio recordings, and formulae
related to the current, future and proposed products and services of Employer,
including, but not limited to, information concerning research, experimental
work, research and development material, design details and specifications,
engineering, financial information, procurement requirements, purchasing,
manufacturing, customer lists, business forecasts, business plans, business
opportunities, sales and merchandising and marketing plans, sales data,
advertising data, vendor lists, personnel information and files, and customer
information. "Trade Secrets" also includes proprietary or confidential
information of any third party who may disclose such information to Employee or
Employer in the course of Employer business.
Employee acknowledges that the terms of this Agreement constitute a
Trade Secret and will not be disclosed to any third parties, including Employer
employees. The previous sentence shall not restrict the ability of Employee to
disclose the terms of this Agreement with his legal advisors.
During the term of this Agreement and for a period of four (4) years
thereafter, Employee agrees to keep all proprietary information and Trade
Secrets of Employer confidential. Such information shall not be disclosed to any
third party. Employee further agrees that work product created by Employee for
Employer during the term of this Agreement shall remain the property of
Employer.
Employee agrees that immediately upon termination of Employee's
employment, or upon request by Employer, Employee will return to Employer all
company property and Trade Secrets, as well as any employee lists, customer
lists, advertising or promotional materials, manuals, and other books, papers,
documents, or data (including all copies thereof) belonging to or related to the
business of the Employer which Employee obtained, created or compiled in the
course of his employment with Employer.
The above provisions shall survive the termination of this Agreement,
subject to the terms of Sections 5 and 6 of this Agreement.
10. Governing Law.
This Agreement shall be governed by the laws of the State of Arizona.
In the event that any part of this Agreement shall be held to be invalid by any
reason of any law or court decision, such invalidity, if any, shall not affect
the validity or legality of any other part of this contract. The parties agree
that any dispute or claim arising out of this Agreement shall be resolved by
binding arbitration in Maricopa County, Arizona in accordance with the
applicable civil rules of the American Arbitration Association before one
arbitrator mutually chosen by the parties.
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11. Knowledge of Agreement's Terms.
Employee and Employer acknowledge that they have read this entire
Agreement and that they understand the nature of the foregoing restrictions, and
that the parties are signing this Agreement willingly and without duress.
12. Modification.
This Agreement cannot be modified or amended except in a writing signed
by both parties.
13. Indemnification.
Employer agrees to indemnify Employee for any and all expenses,
including reasonable attorney's fees, incurred by Employee in connection with
any suit, action, demand, litigation, or arbitration in which Employee is named
as a party in the event such suit, action, demand, litigation, or arbitration
concerns lawful actions taken by Employee within the scope of his employment.
Employer further agrees to maintain such necessary insurance such as Director's
and Officer's Insurance and Errors and Omissions Insurance in amounts necessary
to insure Employee against all claims of any kind.
14. Attorneys' Fees.
In the event that any action or proceeding is brought by either party
for the enforcement or interpretation of this Agreement, the prevailing party in
such action or proceeding shall be entitled to recover from the non-prevailing
party, in addition to any other remedy obtained, the prevailing party's
reasonable attorneys' fees and costs incurred in connection therewith.
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
"Employee"
/s/ Xxxxxxx Xxxxx
Signature
Xxxxxxx Xxxxx
Printed Name
August 13, 2002
Date
INTEGRATED INFORMATION SYSTEMS, INC.
("Employer")
By: /s/ Xxxxx X. Xxxxxx, Xx.
Its: CEO
Date: August 13, 2002
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