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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made as of the 30th day
of May, 2000, by and between INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC., a
South Carolina corporation (the "Company"), and XXXXXXX XXXXXXX XXXXXXXX
("Employee").
WHEREAS, the Company desires to employ Employee, and Employee desires
to be employed by the Company, in accordance with the terms and conditions
hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual promises herein set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties, intending to be legally bound, agree
as follows:
1. Employment. The Company hereby agrees to employ Employee to perform
the duties described below subject to and in accordance with the terms and
conditions hereof, and Employee hereby accepts such employment. In accepting
employment by the Company, Employee shall undertake and assume the
responsibility of performing for and on behalf of the Company the duties of
Chief Financial Officer and General Counsel of the Company. During the term of
this Agreement, Employee shall also be entitled to hold the position of partner,
of counsel, or otherwise be affiliated with the law firm of Xxxxxx Xxxxx Xxxxxx
& Xxxxxxx, LLP or any successor firm. Except as specified herein, any such
affiliation shall not affect the obligations hereunder of either of the parties
to this Agreement.
2. Term. The initial term of employment hereunder shall commence on the
date hereof, and unless earlier terminated in accordance with Section 5 hereof,
shall continue for a term of three (3) years ending on May 30, 2003; provided,
however, that the employment of Employee as Chief Financial Officer shall not
commence until August 1, 2000. This Agreement shall be automatically renewed for
additional terms of one (1) year each, unless no less than one hundred eighty
(180) days prior to the end of the then current term of this Agreement the
Company notifies Employee in writing or Employee notifies the Company in writing
of the intention not to renew this Agreement. References to this Agreement's
term shall mean the initial term and all successive terms unless the context
clearly indicates otherwise.
3. Compensation. As compensation for the services to be rendered by
Employee for the Company under this Agreement, Employee shall be compensated as
follows:
(a) Salary. Employee shall be compensated by the Company on the basis
of a minimum annual base salary ("Salary") of Two Hundred Fifty Thousand
($250,000) Dollars commencing on the effective date of this Agreement. Such
Salary shall be payable in pay periods as determined by the Company, but in no
event less frequently than semi-monthly. The Salary payable to Employee for each
twelve-month period during the term of this Agreement following the first
anniversary of the effective date of this Agreement shall be reviewed by the
Board of Directors (or an appropriate committee of the Board), and may be
increased, but in no event decreased, if the Board of Directors (or such
committee) determines that an increase is appropriate.
(b) Bonuses. In addition to the Salary, Employee shall also be eligible
to receive one or more bonuses, annually or more frequently, the amount and
grant of which shall be at the discretion of the Company.
(c) Vacation and Leaves of Absence. In addition to all regular Company
holidays, the Company shall provide Employee with twenty (20) business days of
paid vacation time during each calendar year during the term of employment
hereunder. Such vacation days are to be taken at such
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time or times as Employee may reasonably request, subject to the Company's
convenience and prior approval, which approval shall not be unreasonably
withheld. The Company may grant additional vacation time and time off in its
sole discretion. Vacation time shall not cumulate year to year, and the Company
shall bear no obligation with respect to unused vacation time at the time of any
termination hereunder. In addition to the foregoing, Employee shall be granted
leaves of absence with full payment of Salary up to ten (10) business days each
calendar year during the term of this Agreement for attendance at professional
conventions, continuing education seminars and other professional or business
activities consistent with duties of Employee hereunder and/or for the
maintenance of any professional license(s) held by Employee. All expenses
reasonably and necessarily incurred by Employee in connection with the
maintenance of any professional license(s) held by Employee shall be paid for,
or reimbursed by, the Company.
(d) Reimbursement For Expenses. The Company shall provide reimbursement
of all reasonable expenses incurred by Employee for the benefit of the Company
in the performance of Employee's duties hereunder, provided that reasonable
written documentation is provided to the Company in support of such
reimbursement.
(e) Other Benefits. The Company shall provide at its expense other
benefits (e.g., health insurance coverage (including payment of benefits under
COBRA), disability insurance coverage, retirement plan participation, etc.)
reasonably comparable to, and no less favorable to Employee than, those benefits
generally provided to other senior executives of the Company, provided, however,
that during the term of this Agreement the Company shall also pay and maintain
for Employee's benefit Employee's existing Jefferson Pilot life insurance policy
insuring Employee's life in the face amount of $500,000.
(f) Transition. The Company and Employee acknowledge and agree that
there shall be an initial employment transition phase of up to three months from
the effective date of this Agreement during which period Employee shall be
engaged in the reduction of his customary professional duties as an attorney
carried out by Employee prior to the effective date of this Agreement and the
commencement of his duties hereunder. During such three month period, Employee
shall maintain for review by the Company's Chief Executive Officer an
appropriate written account of the division of his time between his former and
current employment hereunder, and Employee's monthly Salary otherwise payable
hereunder during such period shall be reduced proportionately during such three
month period as determined by the Company's Chief Executive Officer to reflect
the respective allocations of Employee's professional activities.
4. Stock Options. As a material inducement to Employee to enter into
this Agreement, on the date of Employee's commencement of employment hereunder,
the Company shall grant to Employee effective the date hereof and pursuant to
the Company's Stock Option Plan (the "Plan") or directly outside of the Plan as
set forth below:
(a) Stock Options Under the Plan: stock options to purchase a total of
forty-nine thousand, nine hundred ninety-eight (49,998) shares of the Company's
common stock under the Plan at an exercise price per share of six and
ninety-one/100ths ($6.91) Dollars. Such options shall vest as follows: sixteen
thousand, six hundred sixty-six (16,666) shares on each of November 30, 2000,
May 31, 2001, and May 31, 2002. It is intended that such options shall be
structured to satisfy the requirements of Section 422A of the Internal Revenue
Code and shall be designated as incentive stock options.
(b) Stock Options Outside of the Plan: stock options to purchase a
total of fifty thousand, two (50,002) shares of the Company's common stock at an
exercise price per share of Six and No/100ths ($6.00) Dollars. Such options
shall vest as follows: (i) eight thousand, three hundred thirty-four (8,334)
shares on each of November 30, 2000, May 31, 2001, and May 31, 2002, and (ii)
twenty-five thousand (25,000) shares on November 30, 2001.
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(c) Agreements and Adjustments. The Company and Employee shall execute
and deliver appropriate Stock Option Agreements in the form contemplated by the
Plan or otherwise as necessary to reflect the grant of options hereunder.
Consistent with the adjustments contemplated with respect to options granted
under the Plan, all option amounts and exercise prices shall be adjusted for any
subsequent stock splits, stock dividends, recapitalizations or similar events.
(d) Change in Control. Notwithstanding any vesting provisions
identified in this Section 4, upon the occurrence of a "Change in Control" of
the Company as defined herein, all unvested options granted pursuant to this
Section 4 shall immediately vest and become fully exercisable and remain
exercisable throughout their entire term. For purposes of this Agreement, the
term "Change in Control" shall mean that any one of the following events shall
have occurred: (i) a person, partnership, joint venture, corporation or other
entity, or two or more of any of the foregoing acting as a group (or a "person"
within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), other than the Company, a majority-owned subsidiary
of the Company, an employee benefit plan (or related trust) of the Company or
such subsidiary, (A) directly or indirectly become(s) after the effective date
of grant of the stock options hereunder the "beneficial owner" (as defined in
Rule 13(d)(3) under the 0000 Xxx) of 15% or more of the then outstanding voting
stock of the Company, or (B) makes a tender offer for 15% or more of the
outstanding voting securities of the Company; or (ii) individuals who constitute
a majority of the Board of Directors at the effective date hereof, or
individuals elected or nominated directly or indirectly by at least a majority
of such current directors, no longer constitute a majority of the Company's
Board of Directors; or (iii) the Company enters into (A) a plan of complete
liquidation of the Company; or (B) an agreement for the sale or disposition of
all or substantially all of the Company's assets (other than to a subsidiary of
the Company); or (C) a merger, consolidation, or reorganization of the Company
with or involving any other corporation, other than a merger, consolidation, or
reorganization that would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least seventy- five percent (75%) of the combined voting
power of the voting securities of the Company (or such surviving entity)
outstanding immediately after such merger, consolidation or reorganization.
5. Termination
(a) For Cause By the Company. Notwithstanding any other provision
hereof, the Company may terminate Employee's employment under this Agreement at
any time "for cause." For purposes hereof, the term "for cause" means one of the
following acts by Employee: theft or embezzlement from the Company; knowingly
falsifying Company records; indictment for a felony; drug or alcohol addiction
or abuse; or a material violation of the terms and provisions of this Agreement
which remains uncured by Employee fifteen (15) days after notice from the
Company to Employee of such violation. All compensation (including, without
limitation, the Salary and all perquisites and fringe benefits, but excluding
vested stock options) to which Employee would otherwise be entitled for periods
after the effective date of such termination shall be discontinued and forfeited
as of the effective date of such termination. Employee shall not be deemed to
have been terminated "for cause" without delivery to Employee of a written
notice of termination from the Company explaining the Company's intention to
terminate Employee "for cause" and specifying in reasonable detail the facts and
circumstances that are the basis for terminating Employee's employment; and
providing an opportunity for Employee to cure any curable default specified in
such notice of termination for a period of fifteen (15) days after Employee's
receipt of such notice.
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(b) Without Cause By the Company / For Good Reason by Employee. The Company may
voluntarily terminate this Agreement "without cause" upon sixty (60) days prior
written notice to Employee, and Employee may voluntarily terminate this
Agreement "for good reason" upon sixty (60) days prior written notice to the
Company. For purposes hereof, the term "for good reason" shall include, but not
be limited to, the commission of any of the following by the Company: reduction
of Employee's minimum base salary; assignment to Employee of duties inconsistent
with his duties, responsibilities or status with the Company as Chief Financial
Officer and General Counsel; material change in Employee's reporting
responsibilities, title or office; movement of Employee's principal office for
his performance hereunder to a location more than fifteen miles from the
Company's existing executive offices; diminution in Employee's employee
benefits; failure to cure any Company breach of this Agreement within fifteen
(15) days following the Company's receipt from Employee of written notice of
such breach. In the event of such termination, all compensation (including
without limitation the Salary and any perquisites and fringe benefits, if any)
to which Employee would otherwise be entitled (for periods after the effective
date of the termination) shall be discontinued and forfeited as of the effective
date of such termination. Notwithstanding the foregoing, upon the occurrence of
such termination by the Company "without cause" or by Employee "for good reason"
(as such term is defined above) the following shall occur:
(i) Employee shall be paid any and all accrued and unpaid Salary,
bonuses and any and all unreimbursed expenses for periods prior and up
to the effective date of termination, and Employee shall be paid the
aggregate Salary that Employee would otherwise have been entitled to
receive during the remaining term of this Agreement had Employee's
employment not terminated;
(ii) Employee shall be paid severance compensation equal to eighteen
months of base Salary at the rate of base Salary in effect immediately
preceding the date of termination;
(iii) all unvested options granted pursuant to Section 4 hereof and all
unvested options granted subsequent to the effective date of this
Agreement shall immediately vest; and
(iv) Employee shall receive from the Company, at the Company's expense,
all benefits set forth in Section 3(e) for one (1) year following such
termination; provided however, that during such period, should a third
party provide any such benefit(s) to Employee, the Company's obligation
pursuant to this paragraph to provide the benefit(s) being so provided
by the third party shall be reduced by the amount and to the extent
such benefit(s) is (are) provided to Employee by such third party.
The Company shall pay the amounts set forth under paragraphs 5(b)(i)
and 5(b)(ii) above in a lump sum amount within thirty days after Employee's date
of termination of employment under this Section 5(b). Termination of Employee's
employment hereunder by reason of the death of Employee or the "permanent and
total disability" (as that term is defined and construed under Section 22(e)(3)
of the Internal Revenue Code of 1986, as amended, and any regulations or rulings
promulgated thereunder) of Employee shall be deemed termination of this
Agreement pursuant to this Section 5(b).
(c) Termination Without Cause By Employee. Employee may voluntarily
without cause terminate this Agreement upon sixty (60) days prior written notice
to the Company. In the event of such termination (unless such termination is by
Employee "for good reason" as such term is defined above), all compensation
(including without limitation the Salary and all perquisites and fringe
benefits, but excluding any vested stock options) to which Employee would
otherwise be entitled for periods after the effective date of such termination
shall be discontinued and forfeited as of the effective date of such
termination.
(d) Change in Control. Notwithstanding the operation of the other
provisions of this Section 5, upon any termination of this Agreement by the
Company following the occurrence of a
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"Change in Control" as that term is defined in Section 4 hereof, the Company
shall be obligated to pay the amounts and provide the benefits set forth in
paragraphs (i) through (iv) of Section 5(b) hereof in accordance with the terms
of Section 5(b).
The Company's obligations under Section 5(b) and Section 5(d) hereunder
shall survive the expiration of and any earlier termination of Employee's
employment hereunder.
6. Confidentiality and Secrecy. Employee acknowledges that in and as a
result of Employee's employment hereunder, Employee will be making use of,
acquiring, and/or adding to confidential information of a special and unique
nature and value relating to the Company's business, including without
limitation technological knowhow, copyrights, proprietary information, trade
secrets, systems, procedures, manuals, confidential reports, records, lists of
customers and projects, the nature and type of services rendered by the Company,
the equipment and methods used and preferred by the Company's customers, and the
fees paid by them (all of which are deemed for all purposes confidential and
proprietary). As a material inducement to the Company to enter into this
Agreement and to pay to Employee the compensation stated in Sections 3 and 4,
Employee covenants and agrees that during the term of Employee's employment
hereunder, and for one (1) year after the expiration or earlier termination of
Employee's employment hereunder, Employee shall not without the prior written
consent of the Company, directly or indirectly, make use of, or disclose to any
person, any confidential information of the Company or its affiliates.
7. Covenants Against Competition. Employee acknowledges and understands
that during the term of this Agreement, the Company intends to conduct its
operations on a nationwide basis which may involve all or substantially all of
the United States of America and various foreign countries. In view of the
unique value to the Company of the services of Employee for which the Company
has contracted hereunder, because of the confidential information to be obtained
by or disclosed to Employee, as hereinabove set forth, and because Employee's
employment hereunder will result in Employee's development of a unique
relationship with customers, suppliers, service providers and employees, as a
material inducement to the Company to enter into this Agreement and to pay to
Employee the compensation stated in Sections 3 and 4, Employee covenants and
agrees as follows:
(a) During Employee's employment by the Company, and for a period
expiring on the date two (2) years after the earlier to occur of the expiration
of this Agreement or the earlier termination of Employee's employment hereunder
for any reason other than the Company's termination of Employee "without cause"
pursuant to Section 5(b) hereof or Employee's termination "for good reason"
pursuant to Section 5(b) hereof, Employee shall not directly or indirectly
solicit, divert or convert, or assist another person or entity to solicit,
divert or convert, customers or employees of the Company or an affiliate of the
Company to any other company or entity providing substantially the same or
competitive services or products as the Company or an affiliate of the Company.
(b) During Employee's employment by the Company, and for a period
expiring on the date two (2) years after the earlier to occur of the expiration
of this Agreement or the earlier termination of Employee's employment hereunder
for any reason other than the Company's termination of Employee "without cause"
pursuant to Section 5(b) hereof or Employee's termination "for good reason"
pursuant to Section 5(b) hereof, Employee shall not within the geographic area
specified below engage in any business or perform any services, directly or
indirectly, in competition with the business of the Company or any affiliate of
the Company, or have any interest, whether as a proprietor, partner, employee,
controlling stockholder (directly or beneficially), principal, agent,
consultant, director, officer, or in any other capacity or manner whatsoever, in
any enterprise that shall so engage, or otherwise be a controlling person of, or
a member of a group that controls, such enterprise or be otherwise affiliated in
any capacity with such enterprise. The restrictions of this Section 7(b) shall
apply in every state, territory or other jurisdiction in which the Company is
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conducting its operations or maintains an office or branch at any time during
the term of this Agreement.
8. Reasonableness, Enforceability and Remedies.
(a) Employee has carefully read and considered the provisions of
Sections 6, 7, and 8, and, having done so, agrees that the restrictions set
forth in these Sections, including, but not limited to, the time period of
restriction and geographic limitations set forth in Section 7, are fair and
reasonable and are reasonably required for the protection of the interests of
the Company and its officers, directors, shareholders, employees, and
affiliates.
(b) In the event that, notwithstanding the foregoing, any of the
provisions of Sections 6, 7, or 8 or any parts thereof shall be held to be
invalid or unenforceable, the remaining provisions or parts thereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable portions or parts had not been included therein. In the event that
any provision of Sections 6 or 7 relating to the time period and/or geographic
restrictions and/or related aspects shall be declared by a court of competent
jurisdiction to exceed the maximum restrictiveness such court deems reasonable
and enforceable, the time period and/or geographic restrictions and/or related
aspects deemed reasonable and enforceable by the court shall become and
thereafter be the maximum restriction in such regard, and the restriction shall
remain enforceable to the fullest extent deemed reasonable by such court.
(c) Employee acknowledges that the services Employee is to render are
of a special and unusual character with a unique value to the Company, the loss
of which cannot adequately be compensated by damages in an action at law. In the
event of a breach or threatened breach by Employee of any of the provisions of
Sections 6 or 7, the Company, in addition to and not in limitation of, any other
rights, remedies, or damages available to the Company under this Agreement,
shall be entitled to a permanent injunction in order to prevent or restrain any
such breach by Employee or by Employee's partners, agents, representatives,
servants, employers, employees, consulting clients, and/or any and all persons
directly or indirectly acting for or with Employee.
(d) Employee's obligations under Sections 6 and 7 shall survive the
expiration of and any earlier termination of Employee's employment hereunder.
9. Notice. Any notice, request, approval, consent, demand or other
communication hereunder shall be effective if in writing and upon the first to
occur of the following: (i) upon receipt by the party to whom such notice,
request, approval, consent, demand or other communication is being given; or
(ii) three (3) business days after being duly deposited in the U.S. Mail,
certified, return receipt requested, and addressed as follows:
Employee: Xxxxxxx X. XxXxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
the Company: Integrated Business Systems and Services, Inc.
000 Xxxxxx Xxx, Xxxxx 000
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
ATTN: President
The parties hereto may change their respective addresses by notice in writing
given to the other party to this Agreement.
10. Waiver. Any waiver by either party of any breach or any term or
condition hereof shall be effective only if in writing and such writing shall
not be deemed to be a waiver of any subsequent or other breach, term or
condition of this Agreement.
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11. Governing Law/Jurisdiction. The construction and interpretation of
this Agreement shall at all times and in all respects be governed by the laws of
the State of South Carolina. The parties hereby (i) agree that any litigation,
action or proceeding arising out of or relating to this Agreement may be
instituted in a state or federal court in the State of South Carolina, (ii)
waives any objection which it might have now or hereafter to any such
litigation, action or proceeding based upon improper venue or inconvenient
forum, and (iii) irrevocably submits to the jurisdiction of such courts in any
such litigation, action or proceeding. For all purposes of this Agreement, the
parties hereby further agree that service of process upon any party may be
effected pursuant to United States mail.
12. Burden and Benefit. This Agreement shall be binding upon, and shall
inure to the benefit of, the Company and Employee, and their respective heirs,
personal and legal representatives, successors, and permitted assigns.
13. Assignment/Modification/Severability. This Agreement and any rights
hereunder are personal to Employee and shall not be assigned or otherwise
transferred by Employee. Subject to the rights of Employee under Section 5
hereunder, the Company shall be entitled to assign this Agreement to any
corporation controlled by the Company. This Agreement can only be modified by a
written agreement duly signed by authorized representatives of the parties
hereto. The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any one or more of the provisions of this
Agreement shall not affect the validity and enforceability of the other
provisions. Without limiting the generality of the foregoing or of Section 8,
each provision, sub-provision, part, and sub-part of Sections 7 or 8 shall be
deemed severable.
14. Usage. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Terms such as "hereof",
"hereunder", "hereto", "herein", and words of similar import shall refer to this
Agreement in its entirety and all references shall refer to specified portions
of this Agreement, unless the context clearly requires otherwise.
15. Entire Agreement. This Agreement contains the entire agreement and
understanding by and between the Company and Employee with respect to the
subject matter hereof and supersedes all prior and contemporaneous written or
oral agreements (other than the agreements contemplated in Section 4 hereof) and
representations between the parties with respect thereto.
16. No Inference Against Author. No provision of this Agreement shall
be interpreted against any party because such party or its legal representative
drafted such provision.
IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement under seal to be effective as of the day and year first above written.
EMPLOYEE:
(SEAL)
/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx Xxxxxxx XxXxxxxx
INTEGRATED BUSINESS SYSTEMS AND SERVICES, INC.
(SEAL)
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
President and Chief Executive Officer
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