Exhibit 10.(j)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated May 23, 1996, between
XXXXXX X. XXXXXX, a resident of the State of New Jersey
("Employee"), and ATS MONEY SYSTEMS, INC., a Nevada corporation
with its executive offices in the State of New Jersey (the
"Company").
Terms and Conditions
1. Position. The Company hereby employs Employee
as, and Employee hereby agrees with the Company that he shall
serve as and execute the duties of and assume the
responsibilities of, President and Chief Executive Officer of
the Company, reporting to the Board of Directors of the Company.
Employee, during the Term (as hereinafter defined), and without
any additional compensation, shall serve as a member of the
Board of Directors of the Company (the "Board of Directors") and
of any Executive Committee of the Board of Directors.
2. Extent of Services. Employee, during the Term,
shall devote his full working time, attention and efforts to the
business and affairs of the Company; provided, however, that
Employee may engage in personal and not-for-profit activities of
a non-competing nature as long as such activities do not
materially interfere with the performance of his duties to the
Company.
3. Duties and Responsibilities. Employee shall be
responsible for the overall activities of the Company, assisted
by marketing, sales and finance personnel, all in accordance
with budgets and lawful general policies and other matters as
determined from time to time by the Board of Directors.
4. Salary, Benefits, Incentive Bonus.
(a) Salary. As compensation for his services
hereunder, the Company shall pay Employee an annual salary of
not less than One Hundred and Fifty Two Thousand Dollars
($152,000). Such annual salary shall be subject to review, at
least annually, by the Compensation Committee of the Board of
Directors (the "Compensation Committee"), and if there is no
Compensation Committee, then by the Board of Directors, and
shall be increased by such amounts, if any, as the Compensation
Committee shall determine in its sole discretion; and such
higher annual salary shall thereafter be
deemed Employee's annual salary for purposes of this
Agreement. Annual salary shall be payable in equal installments
on the Company's regular paydays, subject to the usual and
required employee payroll deductions and withholding.
(b) Benefits. Employee shall be entitled to:
(i) four (4) weeks annual paid vacation and all
Company holidays;
(ii) the exclusive use of an automobile of
Employee's choice (at least equivalent to the automobile
currently supplied Employee) and all related expenses (including
maintenance and insurance), which shall be refurnished at least
every three (3) years;
(iii) participate in all employee benefit programs
now or hereafter provided by the Company, to the extent that
Employee meets the eligibility provisions thereof; and
(iv) all business and other prerequisites of
employment generally afforded executives of the Company.
(c) Profit Incentive Bonus. It is the intention,
but not the obligation, of the Company to utilize a portion of
its annual net profits each year to create a fund to be
distributed annually to deserving employees to compensate them
for their efforts on behalf of the Company. If such a fund is
created, Employee shall be paid such portion thereof as the
Compensation Committee determines in its sole discretion, which
determination shall be final.
5. Term. The term of this Agreement (the "Term")
shall commence as of January 1, 1996 and, subject to the
provisions for termination set forth in Paragraph 6, shall
initially expire at the close of business on the third
anniversary of the date hereof. The Term shall be extended
automatically for additional periods, so that the unexpired Term
of this Agreement shall continue to be two (2) years, unless
notice of non-renewal of this Agreement is given by the Company
to Employee not less than two (2) years, or by Employee to the
Company not less than one (1) year, prior to the end of the
then-existing Term.
6. Termination.
(a) Illness or Disability. If Employee is absent
from his employment by reason of illness or other incapacity for
more than six (6) consecutive months during any twelve (12)
consecutive month period, the Board of Directors may, after the
six (6) month period of such absence, terminate Employee's
employment; provided, however, that at least thirty (30) days'
prior notice (given as provided in this Agreement) of intention
to terminate was given to Employee during his period of absence.
In the event of such termination, the Company shall be obligated
to pay Employee his then accrued annual salary, accrued vacation
and accrued benefits to the date of termination of his
employment.
(b) Death. If Employee shall die, this Agreement
shall terminate automatically, and the Company shall be
obligated to pay Employee's then accrued annual salary, accrued
vacation and accrued benefits to the date of his death; and
shall pay his widow, if any, an amount equal to his then annual
salary for a period of three (3) months after his death. In
addition, if the Company is the beneficiary of insurance on
Employee's life at the time of Employee's death, Employee's
estate shall be entitled to receive, upon payment of any such
insurance proceeds, a lump sum equal to the lesser of such
proceeds or Employee's then annual salary at the date of his
death. Employee acknowledges that the Company has no obligation
to maintain insurance on Employee's life, and such insurance, if
maintained, may be discontinued at any time; provided, however,
that if any such insurance is discontinued, Employee shall have
the option, if such insurance is assignable, to continue such
insurance at his expense upon payment of any then cash surrender
value thereof to the Company.
(c) Termination for Cause. The Company may
terminate Employee's employment at any time for Cause. "Cause"
shall exist only if (i) Employee wilfully and continuously fails
substantially to perform his reasonably assigned duties (other
than as a result of Employee's absence due to illness or other
incapacity), if such failure continues for more than ten (10)
business days after notice thereof (given as provided in this
Agreement) from the Board of Directors; or (ii) Employee is
convicted of a felony likely to result in his incarceration; or
(iii) Employee wilfully commits an act of fraud or dishonesty,
of a material nature, against the Company. Upon such
termination, the Company shall be obligated to pay Employee his
then accrued annual salary, accrued vacation and accrued
benefits to the date of his termination.
(d) Termination for Good Reason or Without Cause.
If Employee voluntarily terminates his employment during the
Term for Good Reason, or if the Company terminates Employee's
employment during the Term without Cause (i) Employee shall be
paid, on the date of his termination, a lump sum amount equal to
(A) his then accrued annual salary, accrued vacation and accrued
benefits to the date of his termination, plus (B) the amount
Employee would have received from the Company during the period
equal to the greater of (x) one (1) year, or (y) the then
remaining Term of this Agreement (for which purpose, Employee
shall be deemed to be entitled to receive an annual bonus equal
to the sum of (1) the average annual bonus paid to Employee with
respect to the two (2) preceding years, and (2) the average
annual accrual allocated to Employee under the Company's Profit
Sharing Plan, if any, with respect to such years), and (ii)
Employee automatically shall become fully vested in all of the
Company's benefit programs in which he participated. "Good
Reason" shall exist only if there is a breach of a material
obligation of the Company under this Agreement which is not
remedied within ten (10) business days after notice (given as
provided in this Agreement) from Employee specifically
delineating each such act of claimed breach and setting forth
Employee's intention to terminate his employment if such breach
is not duly remedied. A breach of a material obligation shall
include any of the following events: (i) the removal of
Employee from his position as President and Chief Executive
Officer; (ii) Employee not being appointed or elected as a
member of the Board of Directors and of any Executive Committee
thereof; (iii) a material decrease in Employee's
responsibilities or authority as provided under this Agreement
(or which are hereafter assigned to him) without his consent;
(iv) a reduction in Employee's then annual salary without his
consent or the failure of the Company to pay Employee without
his consent any amounts owed to Employee pursuant to this
Agreement within five (5) days of the date such payment was due
to Employee; (v) the relocation of Employee's principal place of
employment from the New York metropolitan area; or (vi) any
other action by the Company which materially interferes with
Employee's ability to carry out his responsibilities under this
Agreement.
(e) Voluntary Termination Other Than for Good
Reason. If Employee voluntarily terminates his employment
during the Term other than for Good Reason, Employee shall be
paid the unpaid portion of his then accrued annual salary,
accrued vacation and accrued benefits to the date of
termination.
7. Restrictive Covenant. During Employee's
employment under this Agreement, and for a period of one (1)
year after termination of Employee's employment if such
employment is terminated (a) by the Company for Cause, or (b) by
Employee voluntarily other than for Good Reason, Employee shall
not, either directly or indirectly as a partner, joint venturer,
employee, agent, salesman, officer, director or stockholder for
any other party (a) enter into or engage in any business
competitive with that carried on by the Company (or any of its
subsidiaries) within any territory in which the Company (or such
subsidiary) is then doing business; or (b) solicit or attempt to
solicit any employees of the Company (or any of its
subsidiaries) for such purpose.
8. Confidential Information and Discoveries.
Employee agrees that all information of a technical or business
nature, such as know-how, trade secrets, secret business
information, plans, data, processes, techniques, customer
information, inventions, discoveries, formulae, patterns,
devices, etc. (the "Confidential Information", which is not
intended to include knowledge or skills which are known, in
general, to Employee's profession or information which at the
time disclosed by Employee is generally available to the trade),
acquired by Employee in the course of his employment are
valuable business property rights of the Company or companies
affiliated with the Company, as the case may be. Employee shall
not, at any time during or after the termination of Employee's
employment with the Company, reveal, divulge or otherwise make
known to any person any Confidential Information made known to
Employee or of which Employee has become aware, except and to
the extent that such disclosure is necessary to carry out
Employee's employment by the Company. Upon termination of this
Agreement for any reason, Employee shall immediately turn over
to the Company all books of account and other records and
property of the Company used by, or in the possession or control
of, Employee, and Employee shall certify to the Company at such
time that the Employee has complied with this requirement.
9. Expenses. The Company shall reimburse Employee
in accordance with the Company's standard business expense
policies for all reasonable expenses incurred in the performance
of his duties on behalf of the Company; provided, however, that
Employee shall have properly accounted for such expenses to the
extent necessary to substantiate the Company's Federal Income
Tax deductions for such expenses under the Internal Revenue Code
of 1986, and the regulations promulgated thereunder, or under
any successor statute of similar import.
10. Place of Employment. Employee shall perform
his primary duties under this Agreement in the New York
metropolitan area at the offices of the Company. Employee
agrees to travel on temporary trips to such other places as may
be required from time to time to perform his duties under this
Agreement. Employee shall be entitled to appropriate travel and
hotel accommodations with respect to all such business trips.
11. Indemnification. To the extent that Employee
performs his duties for the Company in good faith and in a
manner he reasonably believes to be in, or not opposed to, the
best interests of the Company, and not in contravention of the
provisions of this Agreement, the Company shall indemnify
Employee to the full extent as permitted by the Nevada General
Corporation Law, and Employee shall be required to return any
payments made to him as a result thereof as required by the
Nevada General Corporation Law. The foregoing indemnification
shall be in addition to any indemnification required by the
ByLaws and Certificate of Incorporation of the Company, as in
effect on the date of this Agreement. Employee shall provide
the Company with prompt notice of the commencement of any
litigation in which indemnification from the Company may be
sought, and shall cooperate with the Company, at the Company's
expense, in the defense of any such litigation; the Company
shall have the right to select counsel for Employee and control
the defense of such litigation, as long as the Company acts in a
timely manner. The provisions of this Paragraph shall survive
the Term and the termination of this Agreement.
12. Failure to Make Required Payments. If
Employee's employment is terminated before the conclusion of the
Term (a) by the Company for any reason, or (b) by Employee for
Good Reason, and the Company does not pay Employee, on the date
of his termination, the amounts then due pursuant to the
provisions of this Agreement, Employee shall be entitled to
interest on such unpaid amounts, from the date of termination
until the date actually paid, at a rate equal to the lesser of
(x) the prime rate (as published in the New York Times, from
time to time) plus five percent (5%), or (b) the maximum amount
permitted by law.
13. Miscellaneous.
(a) Assignment. This Agreement is not assignable
by either party except that it may, in the sole discretion of
the Board of Directors, be assigned by the Company incident to
any merger, consolidation or sale of all or substantially all of
the assets and business of the Company. In such an event,
Employee shall have the right to terminate this Agreement at any
time after such permitted assignment on one (1) months' notice
(given as provided in this Agreement); in which event, and
notwithstanding any provision of this Agreement to the contrary
(i) the provisions of Paragraph 7 shall not apply after such
termination, and (ii) Employee shall then be paid, on the date
of his termination, a lump sum amount equal to (A) his then
accrued annual salary, accrued vacation and accrued benefits to
the date of his termination, plus (B) the amount Employee would
have received from the Company during the period equal to the
lesser of (x) six (6) months, or (y) the then remaining Term of
this Agreement.
(b) Modification and Waiver. This Agreement may
not be released, discharged, abandoned, changed or modified in
any manner, except by an instrument in writing signed on behalf
of both of the parties hereto or their duly authorized
representatives. The failure of either party to enforce at any
time any of the provisions of this Agreement shall in no way be
construed to be a waiver of any such provision, nor in any way
affect the validity of this Agreement or any part thereof. Any
waiver of any breach of this Agreement shall not be held to be a
waiver of any other or subsequent breach even if of a similar or
identical nature.
(c) Provisions Void. If any term or provision of
this Agreement is adjudicated invalid or unenforceable by a
Court of competent jurisdiction, the remaining terms and
provisions of this Agreement shall remain unimpaired.
(d) Construction. This Agreement shall be
interpreted and construed under the laws of the State of New
Jersey.
(e) Arbitration. Any controversy or claim arising
out of, or related to, this Agreement shall be resolved by
binding arbitration. The arbitration shall be conducted by one
arbitrator at a location selected by the Company in Bergen or
Union County, New Jersey, in accordance with the then governing
rules of the New Jersey office of the American Arbitration
Association. In the event that the parties, or their attorneys,
if they are represented by attorneys, cannot agree to the
selection of an arbitrator, the arbitrator shall be selected by
the presiding chancery judge of the Bergen County Court. The
prevailing party shall be determined by the arbitrator and shall
be entitled to recover his or its attorney fees and expenses;
and the fees and expenses of the arbitration shall be paid by
the non-prevailing party, unless otherwise determined by the
arbitrator. The decision of the arbitrator shall be binding and
conclusive on all parties involved; and any judgment on the
decision of the arbitrator may be entered in the highest court
of any forum, federal or state, having jurisdiction.
(f) Notice. Any notice given hereunder shall be in
writing and may be sent by certified or registered mail, return
receipt requested, or by recognized overnight courier service,
to the parties at the following addresses or at such other
address as either party may, from time to time, designate in
writing:
Company: ATS Money Systems, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn.:_____________________________
with a courtesy copy to:
Kraemer, Burns, Mytelka & Xxxxxx, P.A.
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Employee: Xxxxxx X. Xxxxxx
000 Xxxx Xxxxxx
Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Notices are effective upon actual receipt or the
refusal of acceptance thereof.
14. Entire Agreement. This Agreement represents
all the terms and conditions and the entire understanding
between the parties with respect to the subject matter hereof.
All of the terms and provisions of this Agreement shall be
binding upon, and inure to the benefit of and be enforceable by
the respective heirs, representatives, successors and permitted
assigns of the parties, except that the duties and
responsibilities of Employee hereunder are of a personal nature
and shall not be assignable in whole or in part by Employee.
15. Survival. Notwithstanding the termination of
this Agreement for any reason, the obligations of Employee under
Paragraphs 7 and 8 shall survive and remain in full force and
effect.
The undersigned have executed or caused the
execution of this Employment Agreement as of the date first
above written.
Attest: ATS MONEY SYSTEMS, INC.
___________________________ By:/s/________________________
Witness:
___________________________ /s/___________________________
Xxxxxx X. Xxxxxx
