FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
FIRST
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS
FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is
made as of January 1, 2005 (the “Effective
Date”), by
and between Q COMM INTERNATIONAL, INC., a Utah corporation (the “Company”),
having its principal place of business at 000 Xxxx Xxxxxxxxxx Xxx. Xxxxxxxx X,
Xxxx, Xxxx 00000, and XXXXXXX X. XXXXXX, residing at 0000 Xxxxx Xxxx, Xxxx Xxxx
Xxxx, XX 00000 (the “Executive”).
W
I T N E S S E T H:
WHEREAS,
the
Company and Executive entered into that certain Employment Agreement, effective
as of November 30, 2004 (the “Original Agreement”); and
WHEREAS,
the
Company and Executive wish to amend and restate the terms of the Original
Agreement, effective as of January 1, 2005.
NOW,
THEREFORE, in
consideration of the foregoing and the mutual covenants in this Agreement, the
Company and the Executive agree as follows:
1. Employment
as Chief Executive Officer/President. The
Company hereby employs the Executive as its Chief Executive Officer/President on
the terms and conditions provided in this Agreement and Executive agrees to
accept such employment subject to the terms and conditions of this Agreement.
The Executive is responsible for the overall management and operations of the
Company and performs the duties and responsibilities as are customary for the
officer of a corporation in such positions and performs such other duties and
responsibilities as are reasonably determined from time to time by the Company's
Board of Directors (the “Board”). The
Executive reports to and is supervised by the Board.
2. Other
Directorships and Activities. The
Executive may engage in the following activities (and shall be entitled to
retain all economic benefits thereof including fees paid in connection
therewith) as long as they do not interfere in any material respect with the
performance of the Executive's duties and responsibilities hereunder: (i) serve
on corporate, civic, religious, educational and/or charitable boards or
committees, provided that the Executive shall not serve on any board or
committee of any corporation or other business which competes with the Business
(as defined in Section 12(a) below); (ii) deliver lectures, fulfill speaking
engagements or teach on a part-time basis at educational institutions; and (iii)
make investments in businesses or
enterprises and manage his personal investments; provided that with respect to
such activities Executive shall comply with any business conduct and ethics
policy applicable to employees of the Company. During the Employment Term the
Executive may not join the board of directors of any company or any committee
appointed by the board of directors of any company without the prior consent of
a majority of the Board, which consent may not be unreasonably withheld. The
Executive has provided the Company with a list of
entities on whose boards he serves and the Company agrees that he may
continue to serve
on these boards.
3. Place
of Performance. In
connection with the Executive’s employment by the Company and unless the parties
hereto mutually agree otherwise, the Executive shall be based at the Company’s
Offices in Orem, Utah, or such other location within the Wasatch Front, except
for required travel on Company business.
4. Term. The
term of this Agreement commenced on January 1, 2005 (the “Commencement
Date”), and
shall terminate on December 31, 2006, unless extended or earlier terminated in
accordance with the terms of this Agreement (the “Termination
Date”). This
Agreement shall renew automatically for successive one-year periods unless
either party notifies the other in writing at least 90 days before the
Termination Date, or any anniversary of the Termination Date, as the case may
be, that he or it chooses not to extend the Employment Term. The period
beginning on the Commencement Date and ending on the Termination Date is herein
referred to as the “Employment Term.”
5. Compensation. As
compensation for performing the services required by this Agreement, and during
the term of this Agreement, the Executive shall be compensated as
follows:
(a) Base
Compensation. The
Company shall pay to the Executive an annual salary of $250,000 (the
“Base
Compensation”). The
Base Compensation shall be payable in equal installments pursuant to the
Company's customary payroll procedures in effect for its executive personnel at
the time of payment, but in no event less frequently than monthly, subject to
withholding for applicable federal, state, and local income and employment
related taxes.
(b) Cash
Bonuses. In
addition to the Base Compensation, the Executive will be eligible to receive
additional compensation in an amount equal to 30% of the Base Compensation (the
“Cash Bonus”). The Cash Bonus will be adjusted based on whether and to what
extent the Company achieves or falls short of certain operational and/or
financial targets (the “Targets”) set
forth in a business plan adopted and approved by the Board and the Executive.
The Cash Bonus shall be paid to the Executive by March 31 of the year following
the year in which they were earned and shall be subject to applicable
withholding for federal, state and local income and employment related taxes.
Subject to the terms of the Termination provision below, should Executive’s
employment termination result in a partial year of employment, Executive shall
be entitled to his Cash Bonus on a pro rata basis.
(c) Stock
Options. Subject
to the approval of the Board and the Company's stockholders, on December 6,
2004, the Company shall grant Executive stock options covering 150,000 shares of
the Company's common stock, the vesting and exercisability of which shall be set
forth in a separate stock option agreement, substantially in the form of Exhibit
A hereto (the “Stock
Option Agreement”).
6. Employee
Benefits. During
the Employment Term the Executive and his eligible dependants shall be entitled
to such benefits (including but not limited to, the right to participate
in any retirement plans (qualified and non-qualified), pension, insurance,
health, disability or other benefit plan or program that has been or is
hereafter adopted by the Company (or in which the Company participates), as
shall be determined by the Board from time to time; provided, however, that the
Executive shall always be entitled to such benefits as are generally made
available to the senior executives of the Company. The Company shall, in
accordance with standard Company policy and practices in effect from time to
time, reimburse the Executive for all reasonable business expenses incurred by
him in connection with the performance of his duties hereunder.
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7. Personal
Time Off. The
Executive shall be entitled to the normal and customary amount of paid vacation,
sick leave, and personal days (vacation, sick leave, personal days collectively
referred to as “PTO”) provided to senior executive officers of the Company.
Executive agrees to give reasonable notice of his PTO scheduling requests, which
shall be allowed subject to the Company’s reasonable business needs. Executive’s
PTO shall be limited to 22 business days per calendar year. (For this purpose,
2004 shall be counted as a partial year and prorated accordingly). Upon any
termination of this Agreement for any reason whatsoever, any accrued and unused
vacation shall be dealt with in accordance with Company policy.
8. Indemnification. The
rights of the Executive to indemnification from the Company for acts or
omissions in connection with his employment by the Company are set forth in the
Indemnification Agreement, dated November 30, 2004, between the Company and the
Executive (the “Indemnification
Agreement”).
9. Termination
and Termination Benefits.
(a) Termination
by the Company.
(i) For
Cause.
Notwithstanding any provision contained herein, the Company may terminate this
Agreement at any time during the Employment Term for “Cause.” For purposes of
this subsection 10(a)(i), “Cause” shall mean (w) if the Company fails to achieve
a majority of the Targets by 30% or more in any calendar year; (x) the willful
failure by the Executive to substantially perform his duties hereunder for any
reason other than total or partial incapacity due to physical or mental illness,
(y) a conviction (or plea of no contest) of Executive of any crime (other than a
routine traffic violation) that constitutes a felony in the jurisdiction in
which the crime was committed or the conviction (or plea of no contest) of
Executive of any act that constitutes moral turpitude or (z) Executive having
committed any act constituting fraud, theft or conversion of property as
determined by a court of competent jurisdiction or by the reasonable judgment of
a majority of the Board after a good faith investigation. Termination pursuant
to this subsection 10(a)(i) shall be effective immediately upon the delivery of
written notice thereof from the Company to the Executive specifying the acts or
omissions constituting the failure and requesting that they be remedied;
provided, however, that in the case of a termination pursuant to clause (x) the
Executive shall have 15 days from the date of such notice to cure the failure
specified in such notice and termination shall occur immediately upon the
expiration of such 15-day cure period if the Executive has not cured such
failure in the good faith judgment of a majority of the Board. In the event of a
termination pursuant to this subsection 10(a)(i), the Executive shall be
entitled to payment of his Base Compensation and the benefits pursuant to
Section 7 hereof up to the effective date of such termination.
(ii) Disability. If due
to illness, physical or mental disability, or other incapacity,
the
Executive shall fail, for a total of any six consecutive months (“Disability”), to
substantially perform the principal duties required by this Agreement as
determined in good faith by a majority of the Board, the Company may terminate
this Agreement upon 30 days' written notice to the Executive. In such event, the
Executive shall (A) be paid his Base Compensation and pro rata Cash Bonus until
the Termination Date, and (B) be provided with employee benefits pursuant to
Section 7 (other than transportation and hotel accommodations), to the extent
available, for the remainder of the Employment Term; provided,
however, that
any compensation to be paid to the Executive pursuant to this subsection
10(a)(ii) shall be offset against any payments received by the Executive
pursuant to any policy of disability insurance, the premiums of which are paid
for by the Company under normal Company policies.
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(iii) Without
Cause. The
Company may terminate the Executive's employment hereunder at any time without
Cause. If the Company terminates the Executive's employment hereunder without
Cause, other than due to death or Disability, the Executive shall (i) be paid
the Base Compensation and the target annual Cash Bonus to which he would have
been entitled had the Company not terminated this Agreement and (ii) be provided
with the employee benefits pursuant to Section 7, to the extent available, for a
period ending on the later of (A) the one-year anniversary of the Termination
Date or (B) the date on which the Employment Term would have terminated had the
Company not terminated this Agreement without Cause (the “Benefit
Period”);
provided, however, if the Executive obtains new employment and such employment
makes the Executive eligible for health and welfare or long-term disability
benefits which are equal to or greater in scope than the benefits then being
offered by the Company, then the Company shall no longer be required to provide
such benefits to the Executive pursuant to Section 7.
(b) Termination
by the Executive. The
Executive may terminate this Agreement at any time upon ninety (90) days prior
written notice to the Company. Unless such termination is for Good Reason (as
defined below), in such event the Company's sole obligation to the Executive
shall be to pay the Executive the Base Compensation and the benefits described
in Section 10 hereof, up to the date of such termination. In addition, the
Executive shall be entitled to receive a pro rata portion (computed on a per
diem basis) of the Cash Bonus he would have received had he not terminated this
Agreement. If the Executive terminates this Agreement for Good Reason, such
termination shall be treated as if the Company had terminated this Agreement
without Cause and the provisions of Section 10(a)(iii) shall apply.
As used
herein, “Good
Reason” means
and shall be deemed to exist if, without the prior express written consent of
the Executive, (a) the Company breaches this Agreement in any material respect;
(b) the Company fails to obtain the full assumption of this Agreement by a
successor; (c) the Company employs another senior executive and requests that
the Executive report to such officer; (d) the Company materially reduces the
Executive's responsibilities, as set forth herein; (e) the Company reduces the
Base Compensation without the Executive's prior consent; or (f) the Company
materially reduces the benefits to which the executive is entitled to pursuant
to Section 10 of this Agreement as of the date
hereof, except if such reduction applies
to all senior executives of the Company; provided, however, that with respect to
items (a) - (f) above, within fifteen (15) days of written notice of termination
by the Executive, the Company has not cured, or commenced to cure, such failure
or breach.
(c) Vesting
of Stock Grants and Stock Options. In the
event of any termination of this Agreement, Executive's rights with regard to
any stock grants or stock options shall be as set forth in the respective
agreement containing the terms and conditions pertaining thereto.
Notwithstanding the foregoing, in the event that the Executive is terminated
for reasons other than for “Cause,” or in the event the Executive terminates
this Agreement for “Good Reason,” or in the event this Agreement is terminated
by reason of Executive's death, any stock options
then held by the Executive shall immediately vest in the Executive and shall
remain exercisable for the period specified in the grant agreement.
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(d) Death
Benefit.
Notwithstanding any other provision of this Agreement, this Agreement shall
terminate on the date of the Executive's death. In such event, any stock options
granted to the Executive that have previously vested or that would have
vested before
the end of the calendar year in which his death occurs, shall immediately vest
in the executive's estate and shall remain exercisable for the period specified
in the Stock Option Agreement notwithstanding any provision therein to the
contrary,
and the
Base Compensation and Cash Bonus that would have been payable to the Executive
through the end of the calendar year in which his death occurs shall be payable
to his estate. Any benefits to which members of the Executive's immediate family
would have been entitled by reason of kinship shall continue to be provided to
them through the end of the calendar year in which his death
occurs.
10. Company
Property. All
advertising, promotional, sales, suppliers, manufacturers and other materials or
articles or information, including without limitation data processing reports,
customer lists, customer sales analyses, invoices, product lists, price lists or
information, samples, or any other materials or data of any kind furnished to
the Executive by the Company or developed by the Executive on behalf of the
Company or at the Company's direction or for the Company's use or otherwise in
connection with the Executive's employment hereunder, are and shall remain the
sole and confidential property of the Company. If the Company requests the
return of such materials at any time during or at or after the termination of
the Executive's employment, the Executive shall immediately deliver the same to
the Company.
11. Covenant
Not To Compete.
(a) Covenants
against Competition. As of
the date of this Employment Agreement (i) the Company is engaged in the business
of selling prepaid products and services, providing electronic
transaction processing
for prepaid products and services, and
selling or licensing an integrated
electronic point of sale activation system or any other related areas into which
the Company may expand (the “Business”); (ii)
the Company's Business is conducted currently throughout the United
States,
Canada
and in certain countries in Europe
and Asia and may be expanded to other locations; (iii) the
Executive’s employment with the Company will have given him access to
confidential information concerning the Company;
and (iv) the agreements
and covenants contained in this Agreement are essential to protect the business
and goodwill of the Company. Accordingly, the Executive covenants and agrees as
follows:
(i) Non-Compete. Without
the prior written consent of the Board, the Executive shall not during the
Restricted Period (as defined below) within the Restricted Area (as defined
below) (except in the Executive's capacity as an officer of the Company or any
of its affiliates), (a) engage or participate in the Business; (b) enter the
employ of, or render any services (whether or not for a fee or other
compensation) to, any person engaged in the Business; or (c) acquire an equity
interest in any such person; provided, however, that during the Restricted
Period the Executive may own, directly or indirectly, up to 1%, solely as a
passive investment, of the securities of any company traded on any national
securities exchange or on the National Association of Securities Dealers
Automated Quotation System.
As used
herein, “Restricted
Period” shall
mean the period commencing on the Effective Date and ending on the second
anniversary of the Executive's termination of employment. In the event the
Company elects not to renew the Agreement, pursuant to Section 5, above, the
Restricted Period shall be shortened to the period commencing on the Effective
Date and ending on the first anniversary of the Executive’s termination of
employment.
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“Restricted
Area” shall
mean any geographic area in which the Company is conducting its Business or is
actively seeking to conduct its Business
(ii) Confidential
Information; Personal Relationships. The
Executive acknowledges that the Company has a legitimate and continuing
proprietary interest in the protection of its confidential information and has
invested substantial sums and will continue to invest substantial sums to
develop, maintain and protect its confidential information. The Executive agrees
that, without the prior written consent of the Board, the Executive shall keep
secret, shall retain in strictest confidence, and shall not knowingly use for
the benefit of himself or others all confidential matters relating to the
Company's business including, without limitation, operational methods, marketing
or development plans or strategies, business acquisition plans, joint venture
proposals or plans, and new personnel acquisition plans, learned by the
Executive heretofore or hereafter (such information shall be referred to herein
collectively as “Confidential
Information”);
provided, that nothing in this Agreement shall prohibit the Executive from
disclosing or using any Confidential Information (A) in the performance of his
duties hereunder, (B) as required by applicable law, (C) in connection with the
enforcement of his rights under this Agreement or any other agreement with the
Company, or (D) in connection with the defense or settlement of any claim, suit,
or action brought or threatened against the Executive by or in the right of the
Company. Notwithstanding any provision contained herein to the contrary, the
term Confidential Information shall not be deemed to include any general
knowledge, skills, or experience acquired by the Executive or any knowledge or
information known or available to the public in general. Moreover, the Executive
shall be permitted to retain copies of, or have access to, all such Confidential
Information relating to any disagreement, dispute, or litigation (pending or
threatened) involving the Executive.
(iii) Employees
of the Company and its Affiliates. During
the Restricted Period, without the prior written consent of the Board, the
Executive shall not, directly or indirectly, hire or solicit, or cause others to
hire or solicit, for employment by any person other than the Company or any
affiliate or successor thereof, any employee of, or person employed within the
two years preceding the Executive's hiring or solicitation of such person by,
the Company and its affiliates or successors or encourage any such employee to
leave his employment. For this purpose, any person whose employment has been
terminated involuntarily by the Company shall he excluded from those persons
protected by this Section for the benefit of the Company.
(iv) Business
Relationships. During
the Restricted Period, the Executive shall not, directly or indirectly, request
or advise a person that has a business relationship with the Company to curtail
or cancel such person's business relationship with the Company.
(b)
Rights and
Remedies upon Breach. If the
Executive breaches, threatens to commit a breach of, any of the provisions
contained in Section 12 of this Agreement (the “Restrictive
Covenants”), the
Company shall have the following rights and remedies, each of which rights and
remedies shall be independent of the others and severally enforceable, and each
of which is in addition to, and not in lieu of, any other rights and remedies
available to the Company under law or in equity:
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(i) Specific
Performance and Injunctive Relief. The
right and remedy to have the Restrictive Covenants specifically enforced by any
court of competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to the
Company and that money damages would not provide an adequate remedy to the
Company. Therefore, Executive agrees that the Company shall be entitled to an
injunction, restraining order or such other equitable relief (without the
requirement to post bond) as a court of competent jurisdiction may deem
necessary or appropriate to restrain Executive from committing any violation of
the Restrictive Covenants. These injunctive remedies are cumulative and in
addition to any other rights and remedies the Company may have.
(ii) Accounting. The
right and remedy to require the Executive to account for and pay over to the
Company all compensation, profits, monies, accruals, increments or other
benefits derived or received by the Executive as the result of any action
constituting a breach of Restrictive Covenants.
(c) Severability
of Covenants. The
Executive acknowledges and agrees that the Restrictive Covenants are reasonable
and valid in duration and geographical scope and in all other respects. If any
court determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect without regard to the invalid
portions. The provisions set forth in this Section 12 above shall be in addition
to any other provisions of the business conduct and ethics policy applicable to
employees of the Company and its subsidiaries during the term of Executive's
employment.
(d) Saving
Clause. If the
period of time or the area specified in subsection (a) above should be adjudged
unreasonable in any proceeding, then the period of time shall be reduced by such
number of months or the area shall be reduced by the elimination of such portion
thereof or both so that such restrictions may be enforced in such area and for
such time as
is adjudged
to be reasonable.
12. Executive's
Representation and Warranties.
Executive represents and warrants that he has the full right and authority to
enter into this
Agreement and fully perform his obligations hereunder,
that he is not subject to any non-competition agreement other than with the
Company, and that his past, present and anticipated future activities
have not and will
not infringe on the proprietary
rights of others. Executive further represents and warrants that he is not
obligated under any contract (including, but not limited to, licenses, covenants
or commitments of any nature) or other agreement or subject
to any judgment, decree or
order of any court or administrative agency which would conflict with his
obligation to use his best efforts to perform his duties hereunder or which
would conflict with the Company's business and operations as presently
conducted or
proposed to be conducted. The Executive has provided the Company with an
accurate and complete list of all boards of directors, boards of
trustees, boards of
advisors and committees thereof of which he is a member as of the date hereof.
Neither the execution nor delivery of this Agreement, nor the carrying on of the
Company's business as officer and employee by Executive will conflict with or
result in a breach of the terms, conditions or provisions of or constitute a
default under any contract, covenant or instrument to which Executive is
currently a party.
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13. Miscellaneous.
(a) Integration;
Amendment. This
Agreement, the Stock Option Agreement and the Indemnification Agreement are the
only agreements between the parties hereto with respect to the matters set forth
herein and supersede and render of no force and effect all prior understandings
and agreements between the parties with respect to the matters set forth herein.
No amendments or additions to this Agreement shall be binding unless in writing
and signed by both parties.
(b) Severability. If any
part of this Agreement is contrary to, prohibited by, or deemed invalid under
applicable law or regulations, such provision shall be inapplicable and deemed
omitted to the extent so contrary, prohibited, or invalid, but the remainder of
this Agreement shall not be invalid and shall be given full force and effect so
far as possible.
(c) Waivers. The
failure or delay of any party at any time to require performance by the other
party of any provision of this Agreement, even if known, shall not affect the
right of such party to require performance of that provision or to exercise any
right, power, or remedy hereunder, and any waiver by any party of any breach of
any provision of this Agreement shall not be construed as a waiver of any
continuing or succeeding breach of such provision, a waiver of the provision
itself, or a waiver of any right, power, or remedy under this Agreement. No
notice to or demand on any party in any case shall, of itself, entitle such
party to other or further notice or demand in similar or other
circumstances.
(d) Power
and Authority. The
Company represents and warrants to the Executive that it has the requisite
corporate power to enter into this Agreement and perform the terms hereof; that
the execution, delivery and performance of this Agreement by it has been duly
authorized by all appropriate corporate action; and that this Agreement
represents the valid and legally binding obligation of the Company and is
enforceable against it in accordance with its terms.
(e) Successors
and Assigns; Survival. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, personal and legal representatives,
successors and assigns. In addition to, and not in limitation of, anything
contained in this Agreement, it is expressly understood and agreed that Sections
10-14 above, shall survive any termination of this Agreement.
(f) Governing
Law; Headings. This
Agreement and its construction, performance, and enforceability shall be
governed by, and construed in accordance with, the laws of the State of Utah.
Headings and titles herein are included solely for convenience and shall not
affect, or be used in connection with, the interpretation of this
Agreement.
(g) Jurisdiction. Except
as otherwise provided for herein, each of the parties (a) submits to the
exclusive jurisdiction of any state court sitting in Utah County, Utah or
federal court sitting in Utah in any action or proceeding arising out of or
relating to this Agreement, (b) agrees that all claims in respect of the action
or proceeding may be heard and determined in any such court and (c) agrees not
to bring any action or proceeding arising out of or relating to this Agreement
in any other court. Each of the parties waives any defense of inconvenient forum
to the maintenance of any action or proceeding so brought and waives any bond,
surety or other security that might be required of any other party with respect
thereto. Any party may make service on another party by sending or delivering a
copy of the process to the party to be served at the address and in the manner
provided for giving of notices in Section 14(h). Nothing in this Section,
however, shall affect the right of any party to serve legal process in any other
manner permitted by law.
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(h) Notices. All
notices called for under this Agreement shall be in writing and shall be deemed
given upon receipt if delivered personally or by confirmed facsimile
transmission and followed promptly by mail, or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties at their
respective addresses as set forth in the preamble to this Agreement or to any
other address or addressee as any party entitled to receive notice under this
Agreement shall designate, from time to time, to others in the manner provided
in this subsection
14(h) for the service of notices.
Any
notice delivered to the party hereto to whom it is addressed shall be deemed to
have been given and received on the day it was received; provided,
however, that if
such day is
not a
business day then the notice shall be deemed to have been given and received on
the business day next following such day. Any notice sent by facsimile
transmission shall be deemed to have been given and received on the business day
next following the day of transmission.
(i) Number
of Days. In
computing the number of days for purposes of this Agreement, all days shall be
counted, including Saturdays, Sundays and holidays; provided,
however, that if
the final day of any time period falls on a Saturday, Sunday or holiday on which
federal banks are or may elect to be closed, then the final day shall be deemed
to be the next day which is not a Saturday, Sunday or such holiday.
(j) Construction. The
Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or disfavoring any
Party by virtue of the authorship of any of the provisions of this Agreement.
Any reference to any federal, state, local, or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. The word “including” shall mean including
without limitation.
IN
WITNESS WHEREOF, the
parties have duly executed this Agreement as of the date first above
written.
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Q
COMM INTERNATIONAL, INC.
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|
By:
|
___________________________________ | |
|
Name:
Xxxxxxx X. Xxxxxx | ||
|
Title:
Chairman of the Board
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| ___________________________________ | ||
|
XXXXXXX
X. XXXXXX
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