EMPLOYEE CONFIDENTIAL INFORMATION AND NONCOMPETITION AGREEMENT
Exhibit 10.35
EMPLOYEE CONFIDENTIAL INFORMATION
AND
NONCOMPETITION AGREEMENT
This Employee Confidential Information and Noncompetition Agreement is made and entered into
on this 16th day of March, 2007, by and between Xxxxxx X.X. Xxxxxxx, Xx., hereinafter “Employee,”
and Heartland Payment Systems, Inc., a Delaware corporation (collectively with any and all current
and future subsidiary and/or affiliate companies, the “Company”).
WHEREAS, Employee has established an employment relationship with the Company and has
received, and may continue to receive, certain benefits including stock grants and options; and
WHEREAS, by reason of employment by the Company, Employee has received, and will continue to
receive, the value and advantage of confidential information and special training and skills, and
the expert knowledge and experience of the contacts with other Company employees; and
WHEREAS, the future granting of stock grants and options represents an advantage to Employee
and was conditioned upon Employee entering into this Agreement; and
WHEREAS, the Company and Employee are parties to that certain November 2001 Employee
Confidential Information and Noncompetition Agreement, as modified by a December 2002 supplement
(collectively, the “Old Agreement”); and
WHEREAS, the Company and Employee desire to revoke and terminate the Old Agreement and enter
into this Agreement.
NOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of
which is hereby acknowledged, it is agreed as follows:
Section 1. Scope of Agreement.
(a) This contract is not a contract of employment for any particular term. Employee’s
employment by the Company is at will, unless otherwise agreed by the Company and Employee in
writing.
(b) Severance policies and procedures are as set forth in the Employee Policy Manual of the
Company; provided, that in the event of a conflict between this Agreement and the Employee Policy
Manual, this Agreement shall govern.
Section 2. Severance and Bonuses.
(a) In consideration of the covenants by Employee contained below, in the event of a
termination of Employee’s employment by action of the Company other than for Cause or Disability,
the Employee will receive severance pay, in an amount equal to the base salary that would have been
paid for a period of twelve (12) months payable in accordance with the Company’s regular payroll
practices, plus medical benefits for such period; provided, that the Employee shall not be eligible
to receive such severance pay unless such termination of employment occurs after the ninetieth
(90th) day of the Employee’s employment by the Company. Medical benefit continuation during such
severance period shall be counted against the benefit continuation period required under COBRA.
(b) In the event of a termination of Employee’s employment by action of the Company other than
for Cause or in the event of termination of Employee’s employment by death of Employee, the
Employee shall also be entitled to receive a pro rata portion (based on the number of days of
Employee’s employment during the fiscal quarter in which the Employee’s employment is terminated)
of any bonus payment that would have been payable to him for that fiscal quarter if the Employee
had been in the employ of the Company for the full fiscal quarter. If the Employee’s compensation
arrangement did not contemplate a bonus payable on a quarterly basis, but instead contemplated a
bonus paid on some longer fiscal period (such as a half-year or full year), then the pro rata bonus
shall be computed based on the number of days of Employee’s employment during such longer fiscal
period in which the Employee’s employment is terminated and the amount of the bonus payment that
would have been payable to him for such longer fiscal period. No bonus will be payable to the
Employee with respect to any bonus period commencing after the bonus period in which the Employee’s
employment terminated.
(c) In the event of a termination of Employee’s employment on or before January 31, 2008,
other than for Cause, the Employee shall also be entitled to receive that portion of any unvested
stock options held by Employee (and that are subject to the terms of a stock option agreement) on
such date that would have vested on the next anniversary date of any stock option award within
twelve (12) months following the termination date and shall vest immediately upon such termination.
(d) Cause. “Cause” means:
(i) The Employee has breached the provisions of Section 4, Section 5, Section 6, or
Section 7 of this Agreement in any material respect;
(ii) The Employee has been convicted of, or plead guilty or no contest to, (A) fraud,
misappropriation or embezzlement in connection with the Company’s business, or (B) a felony,
and has failed to submit a resignation in accordance with Section 2(f) below; or
(iii) The Employee has breached his or her duties hereunder or failed to perform his or
her duties as an officer or employee of the Company, if such breach or failure has not been
cured within thirty (30) days after receipt of written notice from the Company of such
breach or failure.
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Notwithstanding the foregoing, the Employee shall not be deemed to have been terminated for
Cause pursuant to clause (i) above unless and until there shall have been delivered to the Employee
(A) a notice of termination and (B) a copy of a resolution duly adopted by the Board of Directors
of the Company finding that, after reasonable notice to the Employee and an opportunity to be
heard, in the good faith opinion of the Board of Directors of the Company, the Employee has engaged
in conduct constituting Cause for termination hereunder.
(e) Disability. “Disability” means any mental or physical condition that renders the Employee
unable to perform the essential functions of his position, with or without reasonable
accommodation, for a period in excess of six (6) months.
(f) If the Employee is ever convicted of, or pleads guilty or no contest to, any felony
offense, then the Employee shall immediately tender a resignation from each and every position the
Employee then holds with the Company (whether as officer, director, employee, consultant or
otherwise).
Section 3. Employees’ Acknowledgments.
(a) The Employee understands and acknowledges that because of the confidential and sensitive
nature of the information to which the Employee will have access during the course of his
employment with the Company, any unauthorized use, disclosure or misappropriation of such
information will cause irreparable damage to the Company.
(b) The Employee acknowledges that the Company has expended considerable resources to develop
the confidential information and the relationships that the Company enjoys with its customers,
suppliers, employees, officers and other agents, and these assets of the Company are critical to
the business of the Company. The Employee agrees that the restrictions set forth below are
necessary to prevent even the inadvertent disclosure of this confidential information or the
interference with these relationships and to protect the legitimate business interests of the
Company and are reasonable in scope and content.
Section 4. Protection of Information.
(a) The Employee hereby covenants with Company that, throughout the term of his employment by
the Company, Employee will serve Company’s best interests loyally and diligently. Throughout the
course of employment by Company and thereafter, Employee will not disclose to any person, firm,
corporation or entity (except when expressly authorized in writing by Company) any information
relating to Company’s business, including, without limitation, merchant application processing and
credit underwriting software, merchant information systems, sales compensation and sales force
automation software and systems, electronic payment transaction processing software, fraud and risk
analysis systems, human resources and time and attendance information systems and software, payroll
services information systems and payroll application processing software, sales policy documents,
marketing communications materials, information relating to trade secrets, business methods,
products, processes, procedures, development or experimental projects, suppliers, customer lists or
the needs of customers or prospective customers, clients, etc., and will not use such information
for his own purpose or for the purpose of any person, firm, corporation or entity except the
Company.
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(b) Upon termination of his employment with the Company, the Employee shall deliver promptly
to the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof that relate in any way to the
business, products, practices or techniques of the Company, and all other property trade secrets
and confidential information of the Company, including, but not limited to, all documents that in
whole or in part contain any trade secrets or confidential information of the Company, which in any
of these cases are in his possession or under his control.
Section 5. Covenant Not to Compete.
(a) During the Restricted Period (as defined below), Employee will not (i) directly or
indirectly engage in any business or activity which markets, sells or is developing products or
services which compete with the products or services marketed, sold or being developed by the
Company at the time of such termination (such business or activity being hereinafter sometimes
called a “Competing Business”), in any country, state, territory, region or other geographic area,
whether in the United States or otherwise, in which, at the time the Employee becomes no longer
employed by the Company, the Company transacts business or sells or markets its products or
services, whether such engagement by the Employee shall be as an officer, principal, agent,
director, owner, employee, partner, affiliate, consultant or other participant in any Competing
Business, or (ii) assist others in engaging in any Competing Business in any manner described in
the foregoing clause (i).
(b) The Employee understands that the foregoing restrictions may limit his ability to earn a
livelihood in a business competitive to the business of the Company, but he nevertheless believes
that he has received and will receive sufficient consideration and other benefits in connection
with the Company’s issuance of certain stock and stock options to the Employee as well as other
benefits to clearly justify such restrictions which, in any event (given his education, skills and
ability), the Employee does not believe would prevent him from earning a living.
(c) “Restricted Period” shall mean the period commencing on the date hereof and ending on the
last day of the twelfth (12th) full calendar month following the Employee’s termination for any
reason whatsoever including but not limited to involuntary termination (with or without Cause)
and/or voluntary termination; provided that the Restricted Period shall be extended by any amount
of time that the Employee has failed to comply with his promises contained in this Section 5 of
this Agreement.
Section 6. Non Solicitation.
(a) During the period commencing on the date hereof and ending on the last day of the twelfth
(12th) full calendar month following the Employee’s termination for any reason whatsoever including
but not limited to involuntary termination (with or without Cause) and/or voluntary termination,
Employee hereby covenants that he will not, directly or indirectly, solicit, entice or induce any
Customer or Supplier (as defined below) of the Company to (i) become a Customer or Supplier of any
other person or entity engaged in any business activity that competes with any business conducted
by the Company at any time during the period of Employee’s employment with the Company, or any
business planned by the Company at any time during the period of Employee’s employment with the
Company or (ii) cease doing
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business with the Company, and Employee agrees that he will not assist any person or entity in
taking any action described in the foregoing clauses (i) and (ii). For purposes of this Section 6,
(A) a “Customer” of the Company means any person, corporation, partnership, trust, division,
business unit, department or agency which, at the time of termination or within one year prior
thereto, shall be or shall have been a customer, distributor or agent of the Company or shall be or
shall have been contacted by the Company for the purpose of soliciting it to become a customer,
distributor or agent of the Company; and (B) a “Supplier” of the Company means any person,
corporation, partnership, trust, division, business unit, department or agency which, at the time
of termination or within one year prior thereto, shall be or shall have been a supplier, vendor,
manufacturer or developer for any product or service or significant component used in any product
or service of the Company.
(b) During the period commencing on the date hereof and ending on the last day of the
twenty-fourth (24th) full calendar month following the Employee’s termination for any reason
whatsoever, including but not limited to involuntary termination (with or without Cause) and/or
voluntary termination, the Employee will not, directly or indirectly, induce other employees of the
Company to terminate their employment with the Company or engage in any Competing Business.
Section 7. Company Right to Inventions.
(a) The Employee shall promptly disclose, grant and assign ownership to the Company for its
sole use and benefit any and all inventions, improvements, technical information and suggestions
relating in any way to the business of the Company (whether patentable or not), which he may
develop, acquire, conceive or reduce to practice while employed by the Company (whether or not
during usual working hours), together with all patent applications, letters patent, copyrights and
reissues thereof that may at any time be granted for or upon any such invention, improvement or
technical information. In connection therewith:
(b) The Employee shall without charge, but at the expense of the Company, promptly at all
times hereafter execute and deliver such applications, assignments, descriptions and other
instruments as may be necessary or proper in the opinion of the Company to vest title to any such
inventions, improvements, technical information, patent applications, patents, copyrights or
reissues thereof in the corporation and to enable it to obtain and maintain the entire right and
title thereto throughout the world; and
(c) The Employee shall render to the Company at its expense (including a reasonable payment
for the time involved in case he is not then in its employ) all such assistance as it may require
in the prosecution of applications for said patents, copyrights or reissues thereof, in the
prosecution or defense of interferences which may be declared involving any said applications,
patents or copyrights and in any litigation in which the Company may be involved relating to any
such patents, inventions, improvements or technical information.
Section 8. Remedies; Survival.
(a) The Employee acknowledges and understands that the provisions of this Agreement are of a
special and unique nature, the loss of which cannot be accurately
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compensated for in damages by an action at law, and that the breach or threatened breach of
the provisions of this Agreement would cause the Company irreparable harm. In the event of a breach
or threatened breach by the Employee of the provisions in Section 4, Section 5, Section 6, or
Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief restraining
him from such breach without posting any bond. Nothing herein contained shall be construed as
prohibiting the Company from pursuing any other additional or alternative remedies available for
any breach or threatened breach of this Agreement, including but not limited to monetary damages.
(b) Notwithstanding anything contained in the Agreement to the contrary, the provisions of
Section 4, Section 5, Section 6, Section 7 or and this Section 8, shall survive the expiration or
other termination of this Agreement or employment of the Employee by the Company until by their
terms, such provisions are no longer operative.
Section 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.
(a) Employee represents and warrants to the Company that except for agreements set forth in
Exhibit A attached hereto, if any, he is not a party to any agreement or other arrangement with any
other corporation, partnership or entity relating to noncompetition with such entity or to
non-disclosure of confidential and proprietary information of such entity or to other matters
similar to the matters set forth in this Agreement.
(b) Employee represents, warrants and agrees that he can and will perform his duties for the
Company without the unauthorized use of any confidential and/or proprietary information of others.
Section 10. General Provisions.
(a) This Agreement and any or all terms hereof may not be changed, waived, discharged, or
terminated orally, but only by way of an instrument in writing executed by the Company and the
Employee.
(b) This Agreement shall be governed by and construed in accordance with the laws of the State
of New Jersey without regard to legal principles pertaining to conflict of laws.
(c) It is the desire and intent of the parties hereto that the provisions of this Agreement
shall be enforced to the fullest extent permissible under the laws and public policies applied in
each jurisdiction in which enforcement is sought. Accordingly, to the extent that a restriction
contained in this Agreement is more restrictive than permitted by the laws of any jurisdiction
where this Agreement may be subject to review and interpretation, the terms of such restriction,
for the purpose only of the operation of such restriction in such jurisdiction, shall be the
maximum restriction allowed by the laws of such jurisdiction and such restriction shall be deemed
to have been revised accordingly herein.
(d) Any suit, action or proceeding arising out of or relating to this Agreement shall be
brought only in the Superior Court in the County of Xxxxxx, New Jersey or the United States
District Court for the District of New Jersey, and Employee hereby agrees and consents to the
personal and exclusive jurisdiction of said courts over him or her as to all suits, actions and
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proceedings arising out of or relating to this Agreement, and Employee further waives any
claim that such suit, action or proceeding is brought in an improper or inconvenient forum.
(e) If any portion of this Agreement shall be found to be invalid or contrary to public
policy, the same may be modified or stricken by a Court of competent jurisdiction, to the extent
necessary to allow the Court to enforce such provision in a manner which is as consistent with the
original intent of the provision as possible. The striking or modification by the Court of any
provision shall not have the effect of invalidating the Agreement as a whole.
(f) This Agreement constitutes the entire and exclusive agreement between Employee and Company
pertaining to the subject matter thereof, and supersedes and replaces any and all earlier
confidential information, invention and noncompetition agreements between Company and Employee and
representations and understandings of the parties with respect thereto, without extinguishing
whatsoever rights heretofore acquired by Company under any previous agreements.
(g) The Company may assign any of its rights under this Agreement to any successor entity to
the Company, including, but not limited to, any entity formed by the Company to carry on the
business of the Company.
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IN WITNESS WHEREOF, the Agreement has been executed as aforesaid.
| COMPANY HEARTLAND PAYMENT SYSTEMS, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Chairman and CEO | |||
| EMPLOYEE: |
||||
| By: | /s/ Xxxxxx X.X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxx X.X. Xxxxxxx, Xx. | |||
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