EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of this 3rd day of February, 2003 by and
between IA Global, Inc, an Delaware corporation ("Company"), and Xxxxxx Xxxxx
("Executive").
RECITALS
WHEREAS, the Company and Executive desire to enter into arrangements
pertaining to the terms of Executive's employment with the Company;
NOW THEREFORE, in consideration of the mutual covenants and promises
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and Executive, each intending to
be legally bound, agree as follows:
1. TERM
The term of employment ("Term") shall commence as of the date of this
Agreement and shall expire on the 3rd anniversary thereof, unless sooner
terminated as set forth in Section 5 below.
2. DUTIES
Upon the terms and subject to the conditions set forth in this
Agreement, the Company agrees to employ Executive as COO/CFO of the Company.
Executive agrees to serve as COO/CFO of the Company and to perform such duties
in and consistent with that office as may reasonably be assigned to him by the
Company's Board of Directors.
Executive agrees to devote his best effort and skill to the business of
the Company except for periods of vacation and absences made necessary because
of illness, authorized leaves of absence and holidays and to promote the
Company's best interests during the Term. The Company acknowledges that it is
and has long been its policy to encourage its employees, including its officers,
to participate, to a material extent, in civic, charitable, community and
political activities, and the Company agrees that continued participation by
Executive in such activities on a basis and to an extent consistent with his
prior participation is consistent with his obligations under this Agreement.
3. COMPENSATION AND BENEFITS
During the Term, Executive shall be entitled to receive compensation
and benefits as follows:
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(a) Base Compensation. Executive shall receive Base Compensation from
the Company at an annual rate of $ 91,200. Executive's Base Compensation may be
reviewed at least annually and as a result of such review, may be increased.
(b) Additional Benefits. During the Term and thereafter, Executive and
his dependents shall be entitled to participate in any qualified or supplemental
retirement plan, health plan, disability plan and life insurance plan or
arrangement then made available by the Company to its senior executives
generally during the Term or subsequent thereto, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements and the Company's practices with respect to such plans.
Executive is responsible to set up a reasonable Benefit plan for employees.
(c) Vacation. Executive is entitled to 20 days of vacation with full
pay. Vacation will be scheduled by mutual agreement; however, Employee will be
allowed sufficient discretion in scheduling to assure the vacation benefit may
be used.
4. ADDITIONAL COMPENSATION
Additional Compensation including Options Plan shall be in discretion of the
Compensation Committee, once taken effect.
5. TERMINATION OF EMPLOYMENT
(a) Termination for Cause. The Company shall have the right to
terminate Executive's employment with the Company for cause. For purposes of
this Agreement, "cause" shall mean the following: (i) Executive's engagement,
during the performance of Executive's duties hereunder, in acts or omissions
constituting dishonesty, fraud, intentional breach of fiduciary obligation or
intentional wrongdoing or malfeasance; (ii) Executive's conviction of a felony;
(iii) Executive's violation or breach of any material provision of this
Agreement; or (iv) Executive's unreasonable failure or refusal to perform his
duties as the Company reasonably requires or to abide by the Company's policies
for the operation of its business and the continuation thereof after the receipt
by Executive of written notice from the Company or (iv) the Executive's gross
negligence resulting in substantial economic loss or damage to Company or its
reputation.
(b) Termination by Executive. Executive shall have the right, at any
time during the term of this Agreement, and for any reason, to terminate his
employment with the Company upon giving 30 days' written Notice of Termination
as set forth below to the Company.
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(c) Compensation in the Event of Termination for Cause or by Executive.
If Executive's employment with the Company is terminated by the Company for
cause, or if Executive's employment with the Company is terminated by Executive,
then (i) the Base Compensation provided for in Section 3 shall cease to accrue
as of the date of termination of Executive's employment with the Company
("Termination Date") specified in the Notice of Termination as set forth below;
(ii) the Company shall pay to Executive any compensation payable in the amount,
at the time and in the manner set forth in Sections 3 and 4; and (iii) Executive
and his dependents shall cease to participate in the benefit plans and programs,
as provided for in Section 3, as of the Termination Date specified in the Notice
of Termination. Any benefits payable under insurance or health plans as a result
of Executive's participation in such plans through the Termination Date shall be
paid when due under those plans.
(d) Disability. The Company shall have the right to terminate
Executive's employment effective after the determination that Executive is
unable to work due to a Disability. If Executive's employment is terminated
pursuant to this Section 5(d), then: (i) the Base Compensation provided for in
Section 3 shall cease to accrue as of the Termination Date specified in the
Notice of Termination as set forth below; (ii) the Company shall pay to
Executive any compensation payable in the amount, at the time and in the manner
set forth in Sections 3 and 4, to the extent earned notwithstanding such
termination; and (iii) at the option of Executive, Executive and his dependents
may continue to participate in the benefit plans as provided for in Section 3 to
the extent Executive and his dependents are eligible to participate in such
benefit plans pursuant to the terms of such benefit plans. Any benefits payable
under insurance and health plans as a result of Executive's participation in
such plans through the Termination Date shall be paid when due under those
plans. Following the Termination Date, the Company is not obligated to provide
Executive or his dependents the benefits provided for in Section 3 in the event
that Executive or his dependents are not eligible for participation in such
plans pursuant to the terms of such plans due to the termination of Executive's
employment with the Company or for any other reason.
For purposes of this Agreement, "Disability" shall mean a physical or
mental disability, as determined by an independent physician selected by the
Company, that renders Executive incapable of performing his duties under this
Agreement for 180 days or more within any 365-day period, of which at least 90
days are consecutive. The Termination Date pursuant to this Section 5(d) shall
be no earlier than the date of the first day following the 180-day period
described in this paragraph.
(e) Death. If Executive dies during the term of this Agreement, the
Company shall (i) pay Executive's Base Compensation for the period ending on the
date of his death to his Beneficiary; and (ii) pay to Executive's Beneficiary
any compensation payable in the amount, at the time and in the manner set forth
in Sections 3 and 4, to the extent earned notwithstanding Executive's death.
Executive's dependents may continue to participate in the benefit plans as
provided for in Section 3 to the extent Executive's dependents are eligible to
participate in such benefit plans pursuant to the terms of such benefit plans.
Following the Termination Date, the Company is not obligated to provide
Executive's dependents the benefits provided for in Section 3 in the event that
Executive's dependents are not eligible for participation in such plans pursuant
to the terms of such plans due to the termination of Executive's employment with
the Company or for any other reason.
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For purposes of this Agreement, Executive's "Beneficiary" shall be the
personal representative of Executive's estate or if no such representative shall
be appointed within six months after the date of Executive's death, Executive's
heirs under the laws of descent and distribution in effect in the state in which
Executive is domiciled at the date of his death.
(f) Termination Without Cause. The Company shall have the right to
terminate Executive's employment with the Company without cause. If Executive's
employment with the Company is terminated without cause, then (i) the Company
shall pay Executive one-fourth (1/4) of the Executive's annual Base Compensation
in lump sum provided for in Section 3; (ii) the Base Compensation provided for
in Section 3 shall cease to accrue as of the Termination Date specified in the
Notice of Termination set forth below; (iii) the Company shall pay to Executive
any compensation payable in the amount, at the time and in the manner set forth
in Sections 3 and 4; and (iv) Executive and his dependents shall cease to
participate in the benefit plans and programs, as provided for in Section 3, as
of the Termination Date specified in the Notice of Termination. Any benefits
payable under insurance or health plans as a result of Executive's participation
in such plans through the Termination Date shall be paid when due under those
plans.
(g) Notice of Termination. Any termination of Executive's employment
with the Company pursuant to this Section 5 (except in the circumstances of
Executive's death) shall be communicated by a written notice of termination by
the terminating party to the other party ("Notice of Termination") and shall
indicate the Termination Date. The Notice of Termination by the Company for
termination for cause shall indicate the specific provisions of this Agreement
relied upon and shall set forth the reason for such termination.
(h) Survival of Obligations Provided for in Section 6. If Executive's
employment with the Company is terminated for any reason, Executive's
obligations, duties and responsibilities, as provided for in Section 6 shall
survive the termination of Executive's employment and shall continue as set
forth therein.
6. CONFIDENTIALITY
(a) Covenant Concerning Confidentiality. Executive agrees that he shall
not disclose, during the Term and thereafter, without the prior written consent
of the Company, to anyone outside of the Company and its subsidiaries any
confidential matters of the Company or its subsidiaries or their predecessors
for as long as such matters remain confidential and not generally known to the
public, including without limitation, trade secrets, customer lists, pricing
policies, operating methods, any proprietary information of any nature or any
information concerning the business of, or any customer, representative, agent
or employee of, the Company or its subsidiaries or their predecessors that was
obtained by Executive in the course of his employment by the Company or its
subsidiaries or their predecessors, unless such disclosure is made as a proper
part of performing his duties for the Company. Executive further agrees that if
his employment by the Company is terminated for any reason, he will not take
with him, but will leave with and deliver to the Company, any and all records
and papers of whatever nature that relate to his employment by the Company or
bear any information about the Company or its subsidiaries or their
predecessors. In the event Executive violates this provision, the Company shall
be entitled to any and all of its remedies at law or in equity.
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(b) Limitation on Covenant Concerning Confidentiality. Executive's
obligations pursuant to this Section shall not apply to any confidential
information if and to the extent Executive is required pursuant to any statute,
law, ordinance, rule, resolution or order of the U.S. Congress, any state or
local legislature, a judge or an administrative law judge to testify in or to a
legislative, judicial or regulatory proceeding or otherwise to disclose such
confidential information. All such information is and will remain the exclusive
property of the Company. For purposes of this Agreement, the terms "trade
secrets" and "confidential information" include, but are not limited to,
processes, methods, techniques, systems, formulas, patents, models, devices,
compilations, customer lists or any information of whatever nature that gives to
the Company and its subsidiaries an opportunity to obtain an advantage over a
competitor who did not know or use it, but excludes matters which, without
breach of Executive's obligations, are not generally known to the public.
(c) Judicial Modification of Covenant Concerning Confidentiality. If
any provision contained in this Section shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Section, rather
this Section shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. It is the intention of the parties
that if any of the restrictions or covenants contained herein is held to any
extent invalid, such provisions shall not be construed to be null, void or of no
effect, but, to the extent such provision would be valid or enforceable under
applicable law if limited in scope, a court of competent jurisdiction shall
construe and interpret or reform this Section to provide for a covenant having
the maximum enforceable scope and other provisions (not greater than those
contained herein) as shall be valid and enforceable under such applicable law.
7. NO ASSIGNMENT
No interest or amount payable to Executive, his spouse or any other
beneficiary under this Agreement shall be assignable (in law or equity) by
Executive or such beneficiary and shall not be subject to any manner of
alienation, sale, transfer, assignment, claims of creditors, pledge, attachment,
garnishment, levy, execution or encumbrance of any kind. No such interest or
amount payable or right to receive a payment or distribution may be taken,
voluntarily or involuntarily, for the satisfaction of the obligations or debts
of, or other claims against, Executive or his spouse or other beneficiary,
including claims for alimony, support, separate maintenance and claims in
bankruptcy proceedings. This Agreement is personal in nature and, except as set
forth in Section 13, neither this Agreement nor any rights or obligations under
it may be assigned or delegated by either party without the express written
consent of the other.
8. NOTICES
Any notice or communication given pursuant to this Agreement must be in
writing and shall be effective only if delivered personally; or sent by
facsimile transmission; or delivered by overnight courier service; or sent by
certified mail, postage paid, return receipt requested, to the recipient at the
address indicated below or to such other address as the party being notified may
have previously furnished to the other party by written notice pursuant to this
Section 9:
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If to the Company, to:
Xxxx Xxxxxxxxxx
President & CEO
IA Global, Inc.
000 Xxxxxxx Xxxx. Xxxxx 000
Xxxxxxxxxx XX. 00000
If to Executive, to:
Xxxxxx Xxxxx
000 Xxxxxxx Xxx.
Xxxxxxxx, XX. 00000
Notices under this Agreement shall be effective and deemed received on
the date of personal delivery or facsimile transmission (as evidenced by
facsimile confirmation of transmission); on the day after sending by overnight
courier service (as evidenced by the shipping invoice signed by a representative
of the recipient); or on the date of actual delivery to the party to whom such
notice or communication was sent by certified mail, postage prepaid, return
receipt requested (as evidenced by the return receipt signed by a representative
of such party).
9. ENTIRE AGREEMENT; AMENDMENT
This Agreement represents the entire agreement of the Company and
Executive with respect to the matters set forth herein. No amendment or
modification of the terms of this Agreement shall be binding upon the parties
unless reduced to writing and signed by each of the parties.
10. SEVERABILITY
Any provision of this Agreement prohibited by law or deemed
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions.
11. GOVERNING LAW
This Agreement shall be interpreted and construed under the laws of the
State of New York, and the parties consent to the jurisdiction of state and
federal courts located in the State of New York over all matters relating to
this Agreement.
12. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
Company and its successors and assigns.
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13. WAIVER
No waiver by any party at any time of any breach by the other party of,
or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of any other provisions or
conditions at the same time or at any prior or subsequent time.
14. SURVIVAL OF PROVISIONS
The provisions of Sections 6, 8, 10, 11, 12, 13, 14 and 15 of this
Agreement shall survive the termination of Executive's employment with the
Company and the expiration or termination of this Agreement.
15. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original.
16. WITHHOLDING
The Company may withhold from any payment that it is required to make
under this Agreement amounts sufficient to satisfy applicable withholding
requirements under any federal, state or local law.
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IN WITNESS WHEREOF, the parties, intending to be legally bound hereby,
have duly executed this Agreement as of the day and year first set forth above.
IA GLOBAL, INC.
/S/ XXXX XXXXXXXXXX
--------------------------------
XXXX XXXXXXXXXX, PRESIDENT & CEO
/S/ XXXXXX XXXXX
--------------------------------
XXXXXX XXXXX, EXECUTIVE
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