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Exhibit - 10.3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of April 1, 1999,
by and among INTEGRATED INFORMATION SYSTEMS, INC., an Arizona corporation
("IIS" or the "Company"), and XXXXX XXXXXX, an individual ("Xxxxxx").
RECITALS
This Agreement establishes the terms and conditions of Xxxxxx'x continued
employment with the Company.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby covenant and agree as follows:
1. DEFINITIONS. As used herein:
(a) "Company Confidential Information" shall mean confidential,
proprietary information or trade secrets of IIS including without
limitation the following: (1) customer lists and customer
information as compiled by IIS; (2) IIS's internal practices and
procedures; (3) IIS's financial condition and financial results of
operation to the extent not generally available to the public; (4)
all information which Xxxxxx has a reasonable basis to consider
confidential or which is treated by IIS as confidential; and (5)
any and all information having independent economic value to IIS
that is not generally known to, and not readily ascertainable by
proper means by, persons who can obtain economic value from its
disclosure or use. Xxxxxx acknowledges that such information is
Company Confidential Information whether disclosed to or learned by
Xxxxxx or originated by Xxxxxx during employment by IIS.
(b) "IIS" shall mean Integrated Information Systems, Inc. and any other
entity in which it owns directly or indirectly 50% or more of the
equity interest.
2. TERM OF AGREEMENT. This Agreement shall commence as of the date hereof
and shall continue for a term of five (5) years, subject to the other
provisions hereof (the "Term"). The parties may extend the Term for additional
one-year terms by mutual written agreement.
3. POSITION WITH IIS. During the Term, Xxxxxx shall serve as the Chief
Executive Officer of IIS. Xxxxxx shall devote his full time, energy and skill
to the affairs of IIS and shall faithfully and diligently perform all duties
commensurate with such position, including, without limitation, those duties
reasonably requested by IIS's Board of Directors. Xxxxxx shall be subject to
and comply with IIS's policies and procedures.
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4. Salary. Xxxxxx shall be entitled to receive a minimum base salary in
the amount of $125,000 annually, payable in equal installments in accordance
with IIS's general salary payment policies in effect during the term hereof
(the "Minimum Base Salary"). Xxxxxx'x Minimum Base Salary may, at the sole
discretion of IIS's Board of Directors, be increased at such times and in such
amounts as the Board shall determine.
5. Bonus. Xxxxxx shall be entitled to participate in any executive bonus
program offered by IIS.
6. Benefit Plans. Xxxxxx shall be afforded benefits (i.e., sick leave,
medical and other group benefits) similar to those afforded to the other
executive officers of IIS. Xxxxxx shall be entitled to [four (4)] weeks of paid
vacation per year. Nothing in this Agreement shall restrict IIS's ability to
terminate or modify any benefit plan or arrangement; provided, however, that
IIS shall not be entitled to terminate or modify the medical plan payments and
vacation arrangements specifically provided to Xxxxxx in this Section 6 without
Xxxxxx'x prior written consent, and no such termination or modification of any
benefit plan or vacation arrangements shall serve to forfeit any accrued but
unused benefits earned by Xxxxxx.
7. Expenses. IIS shall pay for or reimburse Xxxxxx for all ordinary and
necessary business expenses incurred or paid by Xxxxxx in furtherance of IIS's
business, subject to and in accordance with IIS's policies and procedures of
general application. IIS also shall make the monthly lease payments on Xxxxxx'x
automobile. In addition, IIS will pay for or will reimburse the cost of
insurance and gas for the automobile.
8. Non-Competition. Xxxxxx covenants and agrees that he will not, during
the term hereof and for one (1) year after any termination of employment, other
than termination without Cause, within any jurisdiction in which IIS does
business:
(a) Directly or indirectly participate or assist in the ownership,
management, operation or control of any business similar to or competitive
with IIS; provided, however, that Xxxxxx may own, directly or indirectly,
solely as an investment, securities of any person which are traded on any
national securities exchange or in the over the counter market if Xxxxxx
(x) is not a controlling person of, or a member of a group which controls,
such person or (y) does not, directly or indirectly, own 1% or more of any
class of securities of such person; or
(b) Directly or indirectly solicit for employment any person who is, or
within the six month period preceding the date of such solicitation was, an
employee of IIS, provided that general newspaper advertisements or other
similar solicitations shall not be restricted; or
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(c) Call on or directly or indirectly solicit or divert or take away
from IIS any person, firm, corporation, or other entity who is a customer
or supplier of IIS.
9. Confidentiality and Nondisclosure. It is understood that in the
course of Xxxxxx'x employment with IIS, Xxxxxx will become acquainted with
Company Confidential Information. Xxxxxx recognizes that Company Confidential
Information has been developed or acquired at great expense, is proprietary to
IIS, and is and shall remain the exclusive property of IIS. Accordingly, Xxxxxx
agrees that he will not, without the express written consent of IIS, during
Xxxxxx'x employment with IIS and thereafter or until such time as Company
Confidential Information becomes generally known, or readily ascertainable by
proper means, by persons unrelated to IIS, disclose to others, copy, make any
use of, or remove from IIS's premises any Company Confidential Information,
except as Xxxxxx'x duties for IIS may specifically require.
10. Reasonableness of Scope; Remedies. Xxxxxx acknowledges and agrees
that a breach by Xxxxxx of the provisions of Sections 8 and 9 of this Agreement
will cause IIS irreparable injury and damage that cannot be reasonably or
adequately compensated by damages at law. Xxxxxx further acknowledges and
agrees that he has such skills and abilities that the provisions of this
Sections 8 and 9 will not prevent him from earning a living. Xxxxxx expressly
agrees that IIS shall be entitled to injunctive or other equitable relief to
prevent a threatened breach, breach or continued breach of Sections 8 or 9
hereof in addition to any other remedies legally available to it.
11. Extension During Breach. Xxxxxx agrees that the time periods
described in Sections 8 and 9 shall be extended for a period equal to the
duration of any breach of this Agreement by Xxxxxx.
12. Return of IIS Materials and Company Confidential Information. Upon
Termination, Xxxxxx shall promptly deliver to IIS the originals and all copies
of any and all materials, documents, notes, manuals, or lists containing or
embodying Company Confidential Information, or relating directly or indirectly
to the business of IIS, in the possession or control of Xxxxxx.
13. No Agreement With Others. Xxxxxx represents, warrants, and agrees
that Xxxxxx is not a party to any agreement with any other person or business
entity, including former employers, that in any way affects Xxxxxx'x employment
by IIS or relates to the same subject matter of this Agreement or conflicts
with his obligations under this Agreement, or restricts Xxxxxx'x services to
IIS.
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14. Termination
(a) Termination by IIS for Cause. IIS shall have the right to
terminate Xxxxxx for Cause if the Board determines that any of the following
events have occurred:
(i) Xxxxxx engages in gross misconduct materially detrimental
to the Company;
(ii) Xxxxxx materially breaches this Agreement; or
(iii) Xxxxxx is charged with or convicted of committing a felony
or crime involving moral turpitude, or engages in conduct involving
fraud, dishonesty, embezzlement, theft or conduct that is materially
detrimental to IIS or that could reasonably be expected to have a
material adverse impact on the standing or reputation of Xxxxxx or
IIS.
IIS shall provide written notice of its intent to terminate this Agreement for
Cause hereunder, stating the grounds or nature of the reasons for such
termination. With respect to a purported violation of subsection (a) or (b)
above that is curable in such time period, IIS shall afford Xxxxxx an
opportunity to cure or disprove the purported violation for the ten-day period
following such notice. Upon a termination for Cause, Xxxxxx shall be entitled
to receive only such compensation and benefits as are due Xxxxxx through the
effective date of such termination.
(b) Termination by Xxxxxx for Good Reason. Xxxxxx shall have the
right to terminate his employment for "Good Reason," if any of the following
events have occurred:
(i) a demotion of Executive by Company to a position having
materially less duties and responsibilities than the position set
forth in Section 3 hereof;
(ii) Company materially breaches this Agreement and such breach
is not cured or disproven within ten days after Xxxxxx provides
written notice thereof to Company describing the nature and details
of such breach; or
(iii) the consummation of a merger of Company with or into
another entity or acquisition of more than 50% of the Company equity
voting securities or assets by another person or entity, in each case
other than (A) an entity formed by or previously affiliated with
Company before such merger or acquisition or (B) a person or entity to
whom Xxxxxx sold, exchanged or tendered Company voting securities
owned beneficially or of record by him, where, in conjunction with
such event, either Xxxxxx is not offered an opportunity to or declines
to continue his employment with the acquiring company or the acquiring
company refuses to assume or be bound by the terms of this Agreement.
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15. Termination Upon Voluntary Resignation. In the event Xxxxxx
voluntarily resigns his employment with IIS (other than for Good Reason),
Xxxxxx shall be entitled to receive only such compensation and benefits as are
due Xxxxxx through the effective date of such resignation.
16. Termination Upon Death of Xxxxxx. If during the term of this
Agreement Xxxxxx dies, then this Agreement shall terminate and IIS shall pay to
the estate of Xxxxxx only the compensation and benefits (including any life
insurance benefits provided to Xxxxxx'x estate under IIS's standard policies as
in effect) due Xxxxxx through the date of his death.
17. Termination Upon Disability of Xxxxxx. If during the term of this
Agreement, after any reasonable accommodation required by law, Xxxxxx is unable
to perform the services required of Xxxxxx pursuant to this Agreement for a
continuous period of ninety (90) days due to disability or incapacity by reason
of any physical or mental illness, then IIS shall have the right to terminate
this Agreement at the end of such 90-day period by giving written notice to
Xxxxxx. Xxxxxx shall be entitled to receive only his normal compensation and
benefits through the date of his termination.
18. Termination by IIS Other than for Cause, Death, Disability or
Voluntary Resignation, or Termination by Xxxxxx for Good Reason. IIS shall have
the right to terminate Xxxxxx other than for Cause, death, disability or
voluntary resignation, and Xxxxxx shall have the right to terminate his
employment for Good Reason, in either event upon thirty (30) days prior written
notice to Xxxxxx or Company, as appropriate. In the event IIS elects to
terminate Xxxxxx for any reason other than for Cause, death, disability or
voluntary resignation of Xxxxxx, or in the event Xxxxxx terminates his
employment for Good Reason, Xxxxxx shall be entitled to receive (i) the Minimum
Base Salary due Xxxxxx for the Term, which shall be payable at the same time and
amounts as if he continued in the employ of IIS, and (ii) any accrued bonus,
which shall be payable upon the expiration of the 30-day period referenced
above.
19. Arbitration. Any dispute between the parties, whether arising out of
or in connection with this Agreement, shall be determined by arbitration, which,
other than the relief provided in Section 10 hereof, shall be the exclusive
remedy of the parties. Any such dispute shall be submitted to and be resolved in
accordance with the rules and regulations of the American Arbitration
Association. The arbitration shall be held in Phoenix, Arizona. The arbitrators
shall state in writing the reasons for the award. The arbitrators shall award
compensatory damages to the prevailing party. The arbitrators shall have no
authority to award consequential or punitive or statutory damages, and the
parties hereby waive any claim to those damages to the fullest extent allowed by
law.
20. Severability; Reformation. If any court or arbiter determines that
any of the restrictive covenants in this Agreement, or any part thereof, is or
are invalid or unenforceable, the remainder of the restrictive covenants shall
not thereby be affected and shall be given full effect, without regard to
invalid portions. If any of the provisions of this Agreement should ever be
deemed to exceed the temporal, geographic or occupational limitations permitted
by applicable
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laws, those provisions shall be and are hereby reformed to the maximum
temporal, geographic or occupational limitations permitted by law. If the court
or arbiter refuses to reform this Agreement as provided above, the parties
hereto agree to modify the provisions held to be unenforceable to preserve each
party's anticipated benefits thereunder.
21. Attorneys' Fees. In the event of any action, proceeding or
arbitration arising from or relating to this Agreement or the alleged breach
hereof, the party prevailing therein shall recover its or his reasonable
attorneys' fees and costs.
22. Notices. Any notice, election or communication to be given under this
Agreement shall be in writing and delivered in person, by telecopier, or
deposited, certified or registered, in the United States mail, postage prepaid,
addressed as follows:
If to IIS: Integrated Information Systems, Inc.
0000 X. Xxxxxxxxxxxx Xxxxxxx, Xxx. 000
Xxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
Attn: General Counsel
with copy to: Xxxxx & Xxxxxx L.L.P.
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
FAX: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to Xxxxxx: Xxxxx Xxxxxx
0000 Xxxx Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
FAX: (000) 000-0000
or to such other address as IIS or Xxxxxx may, from time to time, designate in
writing by notice hereunder. Notices delivered hereunder shall be deemed to
have been duly given: when delivered by hand, if personally delivered; three
(3) business days after being deposited in the mail, postage prepaid, if
delivered by mail; and when receipt is acknowledged, if telecopied.
23. Entire Agreement. This Agreement and any other document which is
specifically referred to in this Agreement constitute and embody the full and
complete understanding and agreement of the parties hereto with respect to the
subject matter hereof, and supersedes all prior understandings or agreements,
whether oral or in writing.
24. Binding Nature. This Agreement shall be binding upon and inure to the
benefit of IIS and its successors and assigns, and upon Xxxxxx and his heirs
and legal representatives.
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25. CAPTIONS; HEADINGS. The captions and paragraph headings included in
this Agreement are for convenience of reference only and do not constitute a
part of this Agreement.
26. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute one and
the same document.
27. WITHHOLDING. Xxxxxx acknowledges and agrees that payments made to
Xxxxxx by IIS pursuant to the terms of this Agreement may be subject to tax
withholding and that IIS may withhold against payments due Xxxxxx any such
amounts as well as any other amounts payable by Xxxxxx to IIS.
28. ASSIGNMENT BY IIS. Nothing in this Agreement shall preclude IIS from
consolidating or merging into or with, or transferring all or substantially all
of IIS's assets to, another corporation or entity that assumes this Agreement
and all obligations and undertakings of IIS hereunder. Upon such consolidation,
merger or transfer of assets and assumption, the term "IIS" as used herein
shall mean such other corporation or entity, and this Agreement shall continue
in full force and effect.
29. ASSIGNMENT BY XXXXXX. This Agreement, or any right or interest
hereunder, may not be assigned by Xxxxxx, his beneficiaries or legal
representatives, without IIS's prior written consent; provided, however, that
nothing in this Section 29 shall preclude Xxxxxx from designating a beneficiary
to receive, or assigning to a trust or other entity established by Xxxxxx for
estate or financial planning purposes, any benefit hereunder upon Xxxxxx'x
death, or shall preclude the executors, administrators or other legal
representatives of Xxxxxx or his estate from assigning any right or interest
hereunder to the person or persons entitled to such right or interest.
30. MODIFICATION. No modification, supplement, amendment or waiver of
this Agreement shall be binding unless executed in writing by all parties
hereto. A waiver of any of the provisions of this Agreement shall be not be
deemed to or constitute a waiver of any other provision hereof, nor shall any
such waiver constitute a continuing waiver unless otherwise expressly provided.
31. GOVERNING LAW. This Agreement has been executed and delivered in the
State of Arizona, and its validity, interpretation, performance and enforcement
shall be governed by the laws of that state without regard to conflict of law
principles.
32. CONSTRUCTION. This Agreement shall be construed fairly as to both
parties and not in favor of or against either party, regardless of which party
prepared this Agreement.
33. RELEASE. Receipt of any of the benefits to be provided to Xxxxxx
under this Agreement following termination of Xxxxxx'x employment hereunder
shall be subject to Xxxxxx'x compliance with any reasonable and lawful policies
or procedures of IIS relating to employee
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severance including the execution of a mutual release of any and all claims that
Xxxxxx and IIS may have against one another or any related person, except for
the continuing obligations provided herein, and an agreement that the parties
shall not disparage one another.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
INTEGRATED INFORMATION SYSTEMS, INC.,
an Arizona corporation
By: /s/ Xxxxx Xxxxxxxx
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Its: CFO
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XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
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