Exhibit 10.31
September 1, 2002
Xxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Re: Deferred Compensation Agreement
Dear Don:
This letter will confirm the agreement between you and Integrated Business
Systems and Services, Inc. ("IBSS"), effective the date hereof, pursuant to
which you have agreed to voluntarily defer the receipt of a portion of the
regular periodic semi-monthly annual salary remuneration from IBSS ("Salary")
that you would otherwise be entitled to receive at each date on which you would
otherwise be entitled to receive it under your existing posture as an employee
of IBSS.
Specifically, in consideration of the covenants of IBSS to you as set forth
in this letter agreement, you hereby agree that on each date on which you are
entitled to receive the semi-monthly payment of your Salary covering any period
that is included in the period described below as the Deferral Period, you shall
defer the receipt by you, and IBSS shall be entitled to withhold the payment to
you, of the amount of your semi-monthly Salary compensation set forth below as
the Deferred Portion that would otherwise be due and payable to you on each such
pay date. You agree and understand that in withholding the Deferred Portion,
IBSS shall also not withhold any income or other withholding taxes applicable to
such withheld amount until the date upon which all or a portion of such withheld
amount is actually paid to you, and then only to the extent applicable to such
payment.
Unless otherwise mutually agreed in writing between you and IBSS, and in
consideration of your assistance to IBSS in its cash flow posture by making this
voluntary election to defer the payment of a portion of your Salary, IBSS hereby
agrees that the aggregate amount of all Deferred Portions outstanding and owing
to you (the "Deferred Obligation") shall become an IBSS obligation to you as of
the date of the withholding of that Deferred Portion, and that during the time
that any amount of the Deferred Obligation remains outstanding and owing to you,
such obligation shall bear simple interest at the annual rate of ten percent
(10%) calculated on the basis of a 360-day year.
In further consideration of your voluntary election hereunder, IBSS hereby
agrees that from time to time during the Deferral Period (described below) you
shall be granted IBSS common stock purchase options under one or more of the
qualified stock option plans of IBSS to purchase one (1) share of IBSS common
stock for every two dollars ($2.00) of Deferred Obligation outstanding and owing
to you, excluding for purposes of this calculation: (a) the amount of any
interest payable on the Deferred Obligation as of any such grant date, and (b)
any portion of such Deferred Obligation as to which one or more grants of stock
options have been made to you prior to such grant date under the terms of this
letter. The options shall be ten-year incentive stock options with an exercise
price per share equal to the fair market value per share of IBSS common stock on
the date of grant. The options will fully vest on the date six (6) months and
one day following the date of grant, or earlier if provided for under the stock
option plan of IBSS under which such options are granted.
IBSS agrees that it shall make the first of such stock option grants
effective pursuant to the authority of the IBSS Board of Directors within the
nine (9) month period following the first date of the withholding of any
Deferred Portion under the terms of this letter agreement, or if earlier, (x)
the date upon which your employment with IBSS is terminated by you or IBSS for
any reason, and (y) the effective date of a Change of Control of IBSS as defined
in the IBSS 2001 Stock Incentive Plan.
It is agreed between you and IBSS that the Deferral Period shall commence
effective the date of this letter and terminate (the "Termination Date") on the
date six (6) months following the date of this letter; provided, however, that
in the event the IBSS Board of Directors determines that on the Termination
Date, the working capital of IBSS is not sufficient to commence the payment to
you of amounts owing to you under this letter agreement without adversely
affecting the continuing operations of IBSS, the Termination Date may be
extended by the IBSS Board of Directors in one-month increments (up to a maximum
of three (3) extensions); provided further, that the number of options to be
granted with respect to the Deferred Portion accrued during the time of any such
extension shall increase from one (1) share for every two dollars ($2.00) of
Deferred Portion to one (1) share for every one dollar ($1.00) of Deferred
Portion. In no event shall the Termination Date extend beyond the first
anniversary of the date of this letter agreement.
It is agreed between you and IBSS that (a) on the Termination date, you
shall be entitled to the payment in full of all of the unpaid Deferred
Obligation outstanding on your account with respect to this letter agreement,
including all interest accrued on such Deferred Obligation prior to the
Termination Date, and to the extent not already issued to you, the receipt by
you of all incentive stock options that IBSS is under obligation to issue to you
under the terms of this letter agreement, and (b) prior to the Termination Date,
you shall not be entitled to demand or otherwise have the right to receive from
IBSS the payment to you in cash or in kind of any amount of any Deferred Portion
or any interest payable thereon, except upon the earlier to occur of the events
described in clauses (x) and (y) in the paragraph immediately preceding the
preceding paragraph of this letter agreement.
You and IBSS agree that the deferral arrangement set forth in this letter
agreement shall in no way operate to change, affect, or amend your existing
employment arrangement with IBSS, or otherwise reduce the IBSS obligation to
compensate you at the rate of your current compensation as an employee of IBSS,
or to hereafter increase or decrease your compensation from IBSS, except as to
the change in the timing of the payment to you of such compensation as described
above.
Notwithstanding the provisions for monthly extensions set forth in the
Salary Deferral Agreement dated September 1, 2001 which provided for incremental
increases in the interest rate and the increased option coverage ratio, the
undersigned hereby waives the additional benefits granted to the undersigned by
operation of such extension(s), and agrees that the interest rate of 10% and the
option coverage ratio of one (1) share for every two dollars ($2.00) of Deferred
Portion shall be effective with respect to the undersigned for each of the
months June, July and August, 2002. In order to give effect to this waiver,
appropriate adjustments will be made in connection with future option grants
pursuant to this Agreement.
Please sign this letter where indicated below to signify your agreement
with the terms of the agreement described in this letter.
Very truly yours,
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
/s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Chairman and Chief Executive Officer
Current Annual Compensation Rate: $ 130,000
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Deferred Portion (each semi-monthly period): $ 1,805
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ACKNOWLEDGED AND AGREED Effective the date first written above:
/s/ Xxxxxx X. Xxxxx
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(Signature)
