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Exhibit 10.5
EMPLOYMENT AGREEMENT
This Agreement entered into this 15th day of September, 1998, (the
"Effective Date") by and between Integrated Information Systems, Inc. ("IIS") a
corporation, with its principal place of business located at 0000 Xxxx
Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 (hereinafter called
"Employer"), and Xxxxx Xxxxx (hereinafter called "Employee").
RECITALS:
WHEREAS, Employer is a corporation organized and incorporated under the
laws of the state of Arizona, and has its principal office in Maricopa County,
Arizona;
WHEREAS, Employee is an individual residing in Maricopa County, Arizona
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; and
WHEREAS, Employee voluntarily and freely desires to accept such employment
under the terms and conditions hereinafter set forth.
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 September 15, 1998, Employee is to be employed according to the
terms of this Agreement and Employer's policies and procedures as they relate
to regular, full-time 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
Director of Sales and Marketing (the "Position"). Employee's duties and
responsibilities shall be as follows: (i) develop strategies for acquisition
and retention of customers; (ii) develop organizational structure to meet
business objectives; (iii) develop marketing plans for all services and
products; (vi) develop brand image and positioning; (v) develop strategies to
promote brand; and (vi) work with other executive team members to achieve
business goals. 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 Employer from time to time. For purposes of calculating the receipt of
health or other benefits, 401(k) plans, bonuses, stock options, etc. the
Effective Date of this Agreement is the commencement of Employee's employment
with Employer.
2. Compensation.
A. Employer agrees to pay Employee an initial annual salary of One
Hundred Fifteen Thousand Dollars ($115,000.00) subject to employment taxes and
other payroll deductions as may be required by law or requested by Employee.
Employee's annual salary shall be increased to $125,000.00 at such time
as IIS's gross revenues for a consecutive three-month period total $4,000,000.
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Thereafter, Employee's annual salary shall be increased $150,000.00 at such
time as IIS's gross revenues for a consecutive three-month period total
$8,000,000. Thereafter, any raises shall be at Employer's discretion.
Employee shall be granted access to the books and records of Employer to
determine ITS's gross monthly revenues.
B. During the term of this Agreement, Employer shall provide to
Employee, her spouse and dependents, those benefits including, but not limited
to, health coverage, dental coverage, 401(k), life and disability coverage, and
covered parking. Such health and life benefits provided to Employee shall be
paid for by Employer. Such health and life benefits provided to Employee's
spouse and dependents shall be paid one-half by Employer and one-half by
Employee.
C. Employee may be entitled to receive an annual bonus at the end of
each calendar year, or at such other time in Employer's sole discretion. The
amount of such bonus is discretionary with Employer and will be determined by,
among other things, Employee's performance, level of ability, and overall
contribution to IIS. The annual bonus will include cash and/or stock options in
IIS, or both.
D. Employee shall be granted stock options to purchase 50,000 shares
of IIS's common stock (the "Stock") at an exercise price of $2.00 per share and
an exercise term of ten years (the "Stock Options"). The Stock Options shall
vest in Employee, and be freely exercisable according to the following schedule:
(i) twenty-five percent (25%) of the Stock Options, or 12,500 shares, shall vest
in Employee and be freely exercisable by Employee one (1) year from the
Effective Date; (ii) twenty-five percent (25%) of the Stock Options, or 12,500
shares, shall vest in Employee and be freely exercisable by Employee two (2)
years from the Effective Date; (iii) twenty-five percent (25%) of the Stock
Options, or 12,500 shares, shall vest in Employee and be freely exercisable by
Employee three (3) years from the Effective Date; and (iv) the final twenty-five
percent (25%) of the Stock Options, or 12,500 shares, shall vest in Employee and
be freely exercisable by Employee four (4) years from the Effective Date.
If Employee is granted additional stock options during the term of his
employment as part of a bonus or other compensation, the vesting of such
options shall be determined in a separate agreement to be negotiated between
Employer and Employee.
3. Term of Agreement.
Subject only to the following notice provisions and the Severance Provision
in paragraph 4, the term of this Agreement is for an infinite period of time.
Employee may terminate this Agreement at any time upon three (3) weeks prior
notice to Employer. 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: dishonesty; violation of a law that involves a
felony; gross misconduct; gross neglect of employment duties; or aiding a
competitor. 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.
As of the date of a for cause termination: (i) all stock options, including
the Stock Options, awarded to Employee by Employer that have vested shall remain
vested and freely exercisable by Employee; (ii) all stock options, including the
Stock Options, that are to vest in the calendar year of
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Employee's for cause termination shall vest upon the date of Employee's for
cause termination; and (iii) all stock options, including the Stock Options,
that are to vest after the calendar year in which Employee's employment is
terminated for cause shall be surrendered by Employee to Employer with no
further consideration due Employee for such stock options.
(b) Termination Without Cause. If Employer terminates Employee's
employment without cause, Employee shall be entitled to the following notice
provisions (the "Notice Period"): (a) during the first year of employment:
upon three (3) weeks prior written notice; (b) during the second year of
employment: upon five (5) weeks prior written notice; (c) during the third year
of employment: upon six (6) weeks prior written notice; and (d) at any time
after the third year of employment: upon six (6) weeks prior written notice.
During the Notice Period Employee shall be entitled to full pay and benefits
and all unvested stock options granted to Employee, including the Stock
Options, shall immediately vest in Employee and Employee shall be free to
exercise such options.
4. Severance Provision.
If Employee's employment is terminated by Employer without cause, Employee
shall be entitled to severance pay as follows: (i) if Employee's employment is
terminated before September 15, 1999, a three (3) month continuation of
Employee's salary and benefits in effect at the time of termination; (ii) if
Employee's employment is terminated after September 15, 1999 but before
September 15, 2000, a four (4) month continuation of Employee's salary and
benefits in effect at the time if termination; and (iii) if Employee's
employment is terminated at any time after September 15, 2000, a six (6) month
continuation of Employee's salary and benefits in effect at the time of
termination. Employee shall not be entitled to severance pay if any of the
following conditions occur: (i) Employee is terminated by Employer for "cause";
or (ii) Employee terminates his employment with Employer.
5. Vacation.
Employee shall be entitled to one (1) week paid vacation during the 1998
calendar year. Employee shall be entitled to four (4) weeks paid vacation
during the 1999, 2000, and 2001 calendar years. Thereafter, Employee shall be
entitled to five (5) weeks paid vacation per year.
6. Non-Compete and Non-Solicitation.
Employee agrees that, during the term of this Agreement, and for a period
of twelve (12) months after termination of employment, she will not, either
directly or indirectly, for 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 Employer. 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 twelve (12) months
immediately preceding Employee's date of termination (whether termination is
voluntary or involuntary).
7. Cellular Telephone.
During the term of Employee's employment, Employee shall be entitled to
the use of a cellular phone of her choosing. The monthly service and fees for
such telephone shall be borne by Employer.
8. Tele-Commuting.
During the term of this Agreement, Employee may tele-commute at such times
as are appropriate as long as such tele-commuting does not interfere with
Employee's duties and responsibilities.
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9. Confidentiality and Return of Information.
During the term of this Agreement and for a ten (10) year period
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. Such provision shall survive the termination of this Agreement.
Employee agrees that immediately upon termination of Employee's
employment, or upon request by Employer, Employee will return to Employer 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.
10. Governing Law.
This Agreement shall be governed by the laws 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 made in Maricopa County,
Arizona in accordance with the applicable civil rules of the American
Arbitration Association before one arbitrator mutually chosen by the parties.
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.
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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 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.
IN WITNESS WHEREOF, the parties have executed this Agreement this 15th day
of September, 1998.
XXXXX XXXXX
/s/ Xxxxx Xxxxx
____________________________________
INTEGRATED INFORMATION SYSTEMS, INC.
/s/ Xxxxx X. Xxxxxx
____________________________________
By: Xxxxx X. Xxxxxx, General Counsel
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