AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
AMENDMENT
TO
EXECUTIVE EMPLOYMENT AGREEMENT
This AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT (this “Amendment”), is effective as of the 13th day of August 2013, by and between TSS, INC., a Delaware corporation (f/k/a Fortress International Group, Inc.) (the “Company”), and Xxxxxx X. Xxxxxxxxx (the “Executive”). Each of the Company and Executive are hereinafter individually referred to as a “Party,” and collectively as the “Parties”.
EXPLANATORY STATEMENTS
The Parties are all of the parties to that certain Executive Employment Agreement effective as of January 19, 2007, as amended by Amendment No. 1, dated August 26, 2008, further amended by the Amendment to Executive Employment Agreement effective as of February 28, 2010, further amended by the Amendment to Executive Employment Agreement effective as of January 3, 2012, further amended by the Amendment to Executive Employment Agreement effective as of March 14, 2012, and further amended by the Amendment to Executive Employment Agreement effective as of May 21, 2013, (collectively, the “Employment Agreement”). The Parties desire to amend certain terms and conditions set forth in the Employment Agreement, all as further described and set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
1. Amendments to the Employment Agreement.
(a) Employment Period. Section 2.1 is hereby deleted in its entirety and the following is substituted in lieu thereof:
2.1 Employment Period. The Company hereby employs the Executive, and the Executive hereby accepts said employment and agrees to render services to the Company, on the terms and conditions set forth in this Agreement, for the period (the “Employment Period”) beginning on the date of the closing under the Purchase Agreement (the “Closing Date”) and ending when such period is terminated by the Executive upon thirty (30) days’ written notice to the Company or by the Company upon thirty (30) days’ written notice to the Executive.
(b) Duties. Section 2.2 is hereby deleted in its entirety and the following is substituted in lieu thereof:
2.2. Duties. During the Employment Period, the Executive’s title shall be Chief Technical Officer of the Company. During the Employment Period, the Executive shall report to the Chief Executive Officer of the Company. The Executive shall perform such services for the Company as is consistent with the Executive’s position and as lawfully directed, from time to time, by the Company’s Chief Executive Officer. The Executive shall not, during the Employment Period, be employed or involved in any other business activity for gain, profit or other pecuniary advantage. Notwithstanding the immediately foregoing sentence, the Executive may (a) volunteer services for or on behalf of such religious, educational, non-profit and/or charitable organizations as the Executive may wish to serve; (b) manage his personal, financial and legal affairs; and (c) participate as a director of, or own less than fifty percent (50%) of the equity interest or voting rights in, any other business entity that does not directly or indirectly compete with the business of the Company, so long as (1) the Executive provides the Audit Committee of the Board prior written notice of such activities that describes such activities in reasonable detail (provided, however, that such notice shall not be required for any investment by the Executive that would result in the Executive owning not more than five percent (5%) of the outstanding stock or voting power of a business entity listed on a national securities exchange); (2) such activities do not interfere, or could not reasonably be expected to interfere, with his duties and responsibilities to the Company as provided hereunder, (3) the Executive is not actively involved in the management of such business entity, except to the extent the Executive serves on such business entity’s board of directors or similar governing body; (4) such activities do not violate any of the terms of this Agreement or any other agreement entered into with the Company (including, but not limited to, Sections 2.4 and 7 hereof), and (5) such activities would not be the types of activities required, in the sole discretion of the Audit Committee, to be disclosed under Item 404 of Regulation S-K promulgated by the Securities and Exchange Commission regardless of whether the Company is subject to such disclosure requirements. The Executive acknowledges that the Executive may be required to travel on business in connection with the Executive’s performance of the Executive’s duties hereunder, but that the Executive’s base will be the location of the Company’s headquarters in Columbia, Maryland or such other location as determined by the Board.
(c) Termination. Section 5.2 is hereby deleted in its entirety and the following is substituted in lieu thereof:
5.2. Termination by the Company Other Than for Death, Disability, or Cause or by Executive for a Good Reason. In addition to the payment to the Executive of the Executive’s Base Salary and reimbursement of any applicable expenses pursuant to Section 4.2 through the Date of Termination, if (a) the Employment Period is terminated prior to December 31, 2013, (i) by the Company for reasons other than death, Disability, or Cause, or (ii) by the Executive for a Good Reason, and (b) the Executive executes a general release in the form attached hereto as Exhibit C (the “Release”) on or before the effective Date of Termination, and (c) the Executive has not breached the terms of the “Assignment Agreement” (as defined below); then the Company shall pay the Executive an amount equal to the Executive’s Base Salary (at the rate in effect at the Date of Termination) as though the Executive continued to be employed by the Company until December 31, 2013. Such amount shall be payable in accordance with the Company’s normal payroll practices as though the Executive continued to be employed by the Company until December 31, 2013. If the Executive elects and remains eligible for health coverage pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended (“COBRA”) (and subject to withholding pursuant to Section 3.4 above), then commencing within fifteen (15) business days following the date on which the Release becomes effective pursuant to its terms, the Company will, for a period commencing on the Date of Termination and continuing through December 31, 2013, pay a percentage of the premium for such COBRA health coverage equal to the percentage of the premium for health insurance coverage paid by the Company on the Date of Termination. Notwithstanding the foregoing, if the Employment Period is terminated for any reason after December 31, 2013, the Executive shall only be entitled to receive the Executive’s Base Salary through the Date of Termination and the reimbursement of any applicable expenses pursuant to Section 4.2 through the Date of Termination, and the Executive shall have no right to any other compensation thereafter (other than pursuant to Section 5.3). The Executive shall not be entitled to any other salary or compensation after termination of the Employment Period (other than as set forth in this Section 5.2 and Section 5.3), and no Person shall be entitled hereunder to participate in any employee benefit plan after the Date of Termination if the Employment Period is terminated in connection with this Section 5.2, except as otherwise specifically provided hereunder or as required by applicable law (i.e., COBRA) and provided that nothing herein shall be interpreted to limit the Executive’s conversion rights, if any, under any of the Company’s employee benefit plans. In furtherance of and not in limitation of the foregoing, the Executive may only be terminated by the affirmative vote of a majority of the whole Board (excluding the Executive if he is a member of the Board).
2. Restrictive Covenants. Notwithstanding anything contrary set forth in the Employment Agreement, the Executive shall be subject to the covenants set forth in Section 7 of the Employment Agreement, including without limitation Sections 7.1, 7.2, and 7.3 of the Employment Agreement, for a Restrictive Period beginning on the Date of Termination through the first anniversary of the Date ot Termination.
3. Effect of Amendment. Except as otherwise expressly provided herein, all provisions of the Employment Agreement shall remain in full force and effect. This Amendment and the Employment Agreement contain the entire understanding of the Parties with respect to the subject matter hereof and thereof, and supersede all prior oral or written communications, agreements and understandings between the Parties with respect to the subject matter hereof and thereof. This Amendment is intended to modify the provisions of the Employment Agreement; in the event that there is a conflict between the terms of this Amendment and the Employment Agreement, the Parties intend that the provisions of this Amendment should govern their respective rights and obligations.
4. Miscellaneous. The Explanatory Statements form a material basis for this Amendment and are expressly incorporated herein and made a part hereof. All capitalized terms not otherwise defined in this Amendment shall have the meanings assigned to them in the Employment Agreement. All questions concerning the construction, validity, and interpretation of this Amendment and the performance of the obligations imposed by this Amendment will be governed by the laws of the State governing the Employment Agreement, without reference to any conflict of laws rules that would apply the laws of another jurisdiction. This Amendment may be executed simultaneously in multiple counterparts, each of which will be deemed to be an original copy of this Amendment and all of which together will be deemed to constitute one and the same agreement. The exchange of copies of this Amendment and of signature pages by facsimile transmission or e-mail delivery of a .pdf format data file shall constitute effective execution and delivery of this Amendment as to the Parties and may be used in lieu of the original Amendment and signature pages thereof for all purposes.
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the day and year first written above.
| COMPANY: | EXECUTIVE: | ||
| TSS, INC. | |||
| By: | /s/ Xxxxxxx Xxxxxxxx | /s/ Xxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxx | Xxxxxx X. Xxxxxxxxx | ||
| Title: Chief Executive Officer | |||
