EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made by and between
TOWNE SERVICES, INC., a Georgia corporation (the "Company"), and XXXXXXX X.
XXXXXX, an individual resident of Georgia (the "Employee"), as of the 9th day of
February, 2001 (the "Effective Date").
The Company desires to employ the Employee as its Senior Vice
President/Chief Financial Officer. The Employee is willing to serve the Company
on the terms and condition, herein provided.
In consideration of the foregoing, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree that on the Effective Date:
1. The Company shall employ the Employee, and the Employee shall serve
the Company, as Senior Vice President/CFO upon the terms and conditions set
forth herein. The Employee shall have such authority and responsibilities
consistent with his position and which may be set forth in the Company's bylaws
or assigned by the President/COO (the "President") from time to time. The
Employee shall devote his full business time, attention, skill and efforts to
the performance of his duties hereunder, except during periods of illness or
periods of vacation and leaves of absence consistent with Company policy. The
Employee may devote reasonable periods of time to serve as a director or advisor
to other organizations, to perform charitable and other community activities,
and to manage his personal investments; provided, however, that such activities
do not materially interfere with the performance of his duties hereunder and are
not in conflict or competitive with, or adverse to, the interests of the
Company.
2. Term. Unless earlier terminated as provided herein, the Employee's
employment under this Agreement shall be for a term (the "Term") of one (1)
year. Beginning on the first anniversary of the Effective Date and on each
anniversary of the Effective Date, the Term shall, without further action by
Employee or the Company, be extended by an additional one (1) year period;
provided, however, that either party may, by notice to the other given not less
than 30 days prior to the expiration of the then current Term, cause the Term to
cease to extend automatically. Upon such notice, Employee's employment shall
terminate upon the expiration or the then-current Term, including any prior
extensions.
3. Compensation and Benefits.
a. The Company shall pay the Employee a salary at a rate of
not less than $132,000 per annum in accordance with the salary payment practices
of the Company. The President shall review the Employee's salary at least
annually and may increase the Employee's base salary if lie determines in his
sole discretion that an increase is appropriate.
b. The Employee shall be eligible to participate in a
management incentive program. The bonus will he based on an MBO format and paid
at the discretion of the Chairman/CEO.
c. The Employee shall participate in the Company's stock
option plan and be eligible for the grant of stock options, restricted stock and
other awards (hereunder. These options will be granted to you (based on Board
approval) at the market price as of the grant date.
d. The Employee shall participate in all retirement, welfare,
deferred compensation, life and health insurance, and other benefit plans or
programs of the Company now or hereafter applicable to the Employee or
applicable generally to employees of the Company or to a class of employees that
includes senior vice presidents of the Company; provided, however, that during
any period during the Term that the Employee is subject to a Disability, and
during (the 180-day period of physical or mental infirmity leading up to the
Employee's Disability, the amount of the Employee's compensation provided under
this Section 3 shall be reduced by the sum of the amounts, if any, paid to the
Employee for the same period under any disability benefit or pension plan of the
Company or any of its subsidiaries.
e. The Company shall provide to the Employee an automobile of
a make and model appropriate to the level or a car allowance of $500.00 per
month.
f. The Company shall reimburse the Employee for travel,
seminar, and other expenses related to the Employee's duties which are incurred
and accounted for in accordance with the historic practices of the Company.
g. The Employee shall receive three (3) weeks paid vacation
each year. Unused vacation may not he carried over to subsequent years.
4. Termination.
a. The Employee's employment under this Agreement may he
terminated prior to the end of the Term only as follows:
(i) upon the death of the Employee;
(ii) by the Company due to the Disability of the Employee upon
delivery of a Notice of Termination to the Employee;
(iii) by the Company for Cause upon delivery of' a Notice of
Termination to the Employee;
(iv) by either party for any reason upon 30 days notice to the
other party.
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b. If the Employee's employment with the Company shall be
terminated during the Term (i) by reason of the Employee's death, or (ii) by the
Company for Disability or Cause, the Company shall pay to the Employee (or in
the case of his death, the Employee's estate) within fifteen days after the
Termination Date a lump sum cash payment equal to the Accrued Compensation.
c. If the Employee's employment with the Company shall be
terminated by the Company other than for Disability or Cause. Employee shall
receive severance payments equal to three (3) months salary (minus applicable
withholdings), paid in accordance with the normal payroll schedule of the
Company.
d. If the Employee's employment is terminated by Employee or
by the Company for any reason within 30 days of a Change in Control, Employee
shall receive severance payments equal to six (6) months salary (minus
applicable withholdings), paid in accordance with the normal payroll schedule of
the Company.
e. The severance pay and benefits provided for in this Section
4 shall be in lieu of any other severance or termination pay to which the
Employee may be entitled under any Company severance or termination plan,
program, practice or arrangement. The Employee's entitlement to any other
compensation or benefits shall be determined in accordance with the Company's
employee benefit plans and other applicable programs, policies and practices
then in effect.
5. Trade Secrets. The Employee shall not, at any time, either during
the Term of his employment or after the Termination Date, use or disclose any
Trade Secrets of the Company, as defined by applicable statutes, except in
fulfillment of his duties as the Employee during his employment, for so long as
the pertinent information or data remain Trade Secrets, whether or not the Trade
Secrets are in written or tangible form.
6. Protection of Other Confidential Information. Employee recognizes
the interest of the Company in maintaining the confidential nature of its
proprietary and other business and commercial information. In connection
therewith, Employee covenants that during the term or Employee's employment with
Company under this Agreement, and for a period of two (2) years thereafter,
Employee will not, directly or indirectly, except as necessary to perform
Employee's duties for the Company, publish, disclose or use any Confidential
Information of the Company. "Confidential Information" shall mean any internal,
non-public information (other than Trade Secrets already addressed above)
concerning the Company's financial position and results of operations (including
revenues, assets, net income, etc.); pricing structure, annual and long-range
business plans; product or service plans; marketing plans and methods; training,
educational and administrative manuals; customer and supplier information and
purchase histories; and employee lists. The provisions of Sections 5 and 6 shall
be sufficient to protect Trade Secrets and Confidential Information of third
parties provided to the Company under an obligation of secrecy.
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7. Return of Materials. Employee shall surrender to the Company,
promptly upon its request and in any event upon termination of Employee's
employment with the Company, all media, documents, notebooks, computer programs,
handbooks, data files, models, samples, price lists, drawings, customer lists,
prospect data, or other material of any nature whatsoever (in tangible or
electronic form) in Employee's possession or control, including all copies
thereof, relating to the Company, its business, or its customers. Upon the
request of the Company, Employee shall certify in writing compliance with the
foregoing requirement.
8. Non-Solicitation of Customers. During the term of this Agreement and
for a period of two (2) years after termination of Employee's employment with
the Company for any reason, Employee shall not directly or indirectly, through
one or more intermediaries or otherwise, solicit or attempt to solicit any
Customers to induce or encourage them to acquire or obtain from any individual
or entity other than (he Company, any product or service competitive with or
substitute for any Company Product. For purposes of this Section, a "Customer"
refers to any person or group of persons with whom Employee had direct material
contact with regard to the selling, delivery or support of Company Products,
including servicing such person's or group's account, during the period of
twelve (12) months preceding termination of Employee's employment; and "Company
Products" refers to the products and services that the Company offered or sold
within six (6) months of the date of termination of Employee's employment.
9. Non-Solicitation of Employees. During the term of this Agreement and
for a period of two (2) years after termination of employment with the Company
for any reason, Employee shall not, alone or in concert with others, solicit or
induce any other Company employee to leave the employ of the Company or recruit
or attempt to recruit such person to accept employment with another business.
Provided, however, that this restriction shall only apply to Company employees
with whom Employee had direct material contact during the period of twelve (12)
months preceding the termination of Employee's employment.
10. Successors; Binding Agreement.
a. This Agreement shall be binding upon and shall inure to the
benefit of the Company, its Successors; and Assigns and the Company shall
require any Successors and Assigns to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place.
b. Neither this Agreement nor any right or interest hereunder
shall be assignable or transferable by (he Employee, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Employee's
legal personal representative.
11. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by
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certified mail, return receipt requested, postage prepaid, addressed to the
respective addresses last given by each party to the other; provided, however,
that all notices to the Company shall be delivered or sent directed to the
attention of the Board with a copy to the Secretary of the Company. All notices
and communications shall be deemed to have been received on the date of delivery
thereof.
12. Modification and Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Employee and the Company. No waiver by
any party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
13. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Georgia without giving
effect to the conflict of laws principles thereof.
14. Arbitration. Any controversy or claim against either party arising
from, out of or relating to this Agreement, the breach thereof (other than
controversies or claims arising from, out of or relating to the provisions in
Sections 5, 6, 7, 8, and 9 above, which may be litigated in a court of competent
jurisdiction), or the employment or termination thereof of Employee by the
Company which would give rise to a claim under federal, state or local law
(including but not limited to claims based in tort or contract, claims for
discrimination under state or federal law, and/or claims for violation of any
federal, state or local law, statute or regulation) ("Claims") shall be
submitted to an impartial mediator ("Mediator") selected jointly by the parties.
Both parties shall attend a mediation conference and attempt to resolve any and
all Claims. If they are not able to resolve all Claims, any unresolved Claims,
including ally dispute as to whether a matter constitutes a Claim which must be
submitted to arbitration, shall be determined by final and binding arbitration
in Georgia in accordance with the Model Employment, Dispute Resolution Rules
("Rules") of the American Arbitration Association, by an experienced employment
arbitrator licensed to practice law in the State of Georgia in accordance with
the Rules. The arbitrator shall be selected by alternate striking from a list of
six arbitrators, half of which shall be supplied by the Company and half by
Employee. The party not initiating the arbitration shall strike first. The
process shall be repeated twice until an arbitrator is selected. If an
arbitrator is still not selected, the Mediator shall provide a list of three
names which will be alternately struck, with the party initiating the
arbitration Striking first, until a selection is made.
A demand for arbitration shall be made within a reasonable time after the Claim
has arisen. In no event shall the demand for arbitration be made after the date
when institution of legal and/or equitable proceedings based on such Claim would
be barred by (lie applicable statute of limitations. Each party to the
arbitration will be entitled to be represented by counsel and will have the
opportunity to Lake one deposition of an opposing party or witness before the
arbitration hearing. By mutual agreement of the parties, additional depositions
may be taken. The arbitrator shall have (he authority to hear and grant a motion
to dismiss and/or for summary judgment, applying the standards governing such
motions under the Federal Rules of
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Civil Procedure. Each party shall have the right to subpoena witnesses and
documents for the arbitration hearing. A court reporter shall record all
arbitration proceedings.
With respect to any Claim brought to arbitration hereunder, either
party may be entitled to recover whatever damages would otherwise be available
to that party in any legal proceeding based upon the federal and/or state law
applicable to the matter and as specified by Section 13. The decision of the
arbitrator may be entered and enforced in any court of competent jurisdiction by
either the Company or Employee. Each party shall pay the fees of their
respective attorneys (except as otherwise awarded by the arbitrator), the
expenses of their witnesses and any other expenses connected with presenting
their Claim or defense. Except as otherwise awarded by the arbitrator, other
costs of the arbitration, including the fees of the Mediator, the arbitrator,
the cost of any record or transcript of the arbitration, administrative fees,
and other fees and costs, shall be borne equally by the parties, one-half by
Employee, on the one hand, and one-half by the Company, on the other hand.
Should Employee or the Company pursue any dispute or matter covered by this
Section by any method other than said arbitration, the responding party shall be
entitled to recover from the other party all damages, costs, expenses, and
attorneys' fees incurred ,is a result of such action. The provisions contained
in this Section 14 shall survive the termination and/or expiration of this
Agreement.
The parties indicate their acceptance of the foregoing arbitration
requirement by initialing below:
___________________ ___________________
For the Company Employee
15. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof,
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
17. The headings of Sections herein are included solely for convenience
of reference and shall not control the meaning or interpretation of any of the
provisions of this Agreement.
18. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
19. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
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a. "Accrued Compensation,, shall mean an amount which shall
include all amounts earned or accrued through the Termination Date but not paid
as of the Termination Date including (i) base salary, (ii) reimbursement for
reasonable and necessary expenses incurred by the Employee oil behalf of the
Company during the period ending on the Termination Date, and (iii) bonuses and
incentive compensation.
b. "Act" shall mean the Securities Act of 1933, as amended.
c. "Base Amount" shall mean the greater of the Employee's
annual base salary (i) at the rate in effect on the Termination Date or (ii) at
the highest rate in effect at any time during the 90-day period prior to the
Change in Control, and shall include all amounts of his base salary that are
deferred under the qualified and non-qualified employee benefit plans of the
Company or any other agreement or arrangement.
d. "Board" shall have the meaning set forth in the recitals.
e. "Bonus Amount" shall mean the greater of (i) the most
recent annual bonus paid or payable to the Employee, or, if greater, the annual
bonus paid or payable for the full fiscal year ended prior to the fiscal year
during which a Change in Control occurred or (ii) the average of the annual
bonuses paid or payable during the three full fiscal years ended prior to the
Termination Date or, if greater, the three full fiscal years ended prior to the
Change in Control (or, in each case, such lesser period for which annual bonuses
were paid or payable to the Employee).
f. The termination of the Employee's employment shall be for
"Cause" if it is a result of:
(i) any act that (A) constitutes, on (be part of the Employee,
fraud, dishonesty, malfeasance of duty, or conduct inappropriate
to the Employee's office, and (B) is demonstrably likely to lead
to material injury to the Company or resulted or was intended to
result in direct or indirect gain to or personal enrichment of the
Employee; or
(ii) the conviction (from which no appeal may be or is timely
taken) of the Employee of a felony; or
(iii) Employee's failure to perform his job duties to the
satisfaction of the President;
provided, however, that in the case of clause (i) above, such
conduct shall not constitute Cause:
(x) unless (A) there shall have been delivered to the Employee
a written notice setting forth with specificity the reasons that the
President believes the Employee's conduct constitutes the criteria
set forth in clause (i), (B) the Employee
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shall have been provided the opportunity to be heard in person by the
President (with the assistance of the Employee's counsel if the
Employee so desires); or
(y) if such conduct (A) was believed by the Employee
in good faith to have been in or not opposed to the interests of the
Company, and (B) was not intended to and did not result in the direct
or indirect gain to or personal enrichment of the Employee.
Provided further, in order for the Company to terminate Employee's employment
pursuant to clause (iii) above, the Company must first give Employee written
notice of such Cause and thirty (30) days to cure such Cause.
g. A "Change in Control" shall mean the occurrence during the
Term of any of the following events:
(i) An acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities") by
any "Person" (as the term person is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934 (the " 1934
Act")) immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the
0000 Xxx) of 50% or more of the combined voting power of the
Company's then outstanding Voting Securities; provided, however,
that in determining whether a Change in Control has occurred,
Voting Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (1) an employee benefit
plan (or a trust forming a part thereof) maintained by (x) the
Company or (y) any corporation or other Person of which a majority
of its voting power or its equity securities or equity interest is
owned directly or indirectly by the Company (a "Subsidiary"), (2)
the Company or any Subsidiary, or (3) any Person in connection
with a "Non-Control Transaction" (as hereinafter defined).
(ii) The individuals who, as of the date of this Agreement,
are members of the Board (the "Incumbent Board") cease for any
reason to constitute at least two-thirds of the Board; provided,
however, that if the election, or nomination for election by the
Company's stockholders, of any new director was approved by a vote
of at least two-thirds of the Incumbent Board, such new director
shall, for purposes or this Agreement, be considered as a member
of the Incumbent Board; provided, further, however, that no
individual shall be considered a member of the Incumbent Board if
such individual initially assumed office as a result of either an
actual or threatened "Election Contest" (as described in Rule
14a-11 promulgated under the 0000 Xxx) or other actual or
threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board 01 "Proxy Contest") including by
reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or
(iii) Approval by stockholders of the Company of:
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(A) (1) A merger, consolidation or
reorganization involving
the Company, unless
(x) the stockholders of the
Company, immediately before
such merger, consolidation
or reorganization, own,
directly or indirectly,
immediately following such
merger, consolidation or
reorganization, at least
two-thirds of the combined
voting power of the
outstanding voting
securities of the
corporation resulting from
such merger or
consolidation or
reorganization (the
"Surviving Corporation") in
substantially the same
proportion as their
ownership of the Voting
Securities immediately Wore
such merger, consolidation
or reorganization, and
(y) the individuals who were
members of the Incumbent
Board immediately prior to
the execution of the
agreement providing for
such merger, consolidation
or reorganization
constitute at least
two-thirds of the members
of the board of directors
of the Surviving
Corporation;
(A transaction described in clauses
(x) and (y) shall herein be referred
to as a "Non-Control Transaction").
(iv) Notwithstanding anything contained in this Agreement to
the contrary, if the Employee's employment is terminated prior to
a Change in Control and the Employee reasonably demonstrates that
such termination (A) was at the request of a third party who has
indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in Control
(a "Third Party") or (B) otherwise occurred in connection with, or
in anticipation of, a Change in Control which actually occurs,
then for all purposes of this Agreement, the date of a Change in
Control with respect to the Employee shall mean the date
immediately prior to the (late of such termination of the
Employee's employment.
h. "Disability" shall mean, subject to applicable state and
federal laws, a physical or mental infirmity which impairs the Employee's
ability to substantially perform his duties with the Company for a period of 180
consecutive days, as determined by an independent physician selected with the
approval of both the Company and the Employee.
i. "Notice of Termination" shall mean a written notice of
termination from the Company or the Employee which specifics an effective date
of termination, indicates the specific termination provision in this Agreement
relied upon, and sets forth in reasonable
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detail the facts and circumstances claimed to provide a basis for termination of
the Employee's employment under the provision so indicated.
j. "Successors and Assigns" shall mean a corporation or other
entity acquiring all or substantially all the assets and business of the Company
(including this Agreement), whether by operation of law or otherwise.
k. "Termination Date" shall mean, in the case of the
Employee's death, his date of death, and in all other cases, the date specified
in the Notice of Termination.
l. "Trade Secrets" shall mean any information, including but
not limited to technical or non-technical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing, a process,
financial data, financial plans, product plans, information on customers, or a
list of actual or potential customers or suppliers, which: (i) derives economic
value, actual or potential, from not being generally known to, and not being,
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use, and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers thereunto duly
authorized, and the Employee has signed and scaled this Agreement, effective as
of the date first above written.
TOWNE SERVICES, INC.
ATTEST:
By: /s/ Chez Xxxxxxxxx By: /s/ G. Xxxx Xxxxx
------------------------------------- -----------------------
Name: Chez Xxxxxxxxx Name: G. Xxxx Xxxxx
Title: Assistant Secretary Title: Chairman / CEO
(CORPORATE SEAL) EMPLOYEE
/s/ Xxxxxxx X. Xxxxxx
------------------------------
XXXXXXX X. XXXXXX
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