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Exhibit 10.7(a)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of the 4th day of February, 1999,
is between Secure Commerce Services, Inc., a Delaware corporation with its
principal offices at 00 Xxxxxx Xxxxx, Xxxxx X00, Xxxxxxxxx, XX 00000 (the
"Company") and Flint X. Xxxx ("Employee").
WHEREAS, Employee is one of the founders of the Company and has been
employed by the Company since its inception; and
WHEREAS, the Company and Employee both desire to document the terms and
conditions under which Employee shall continue his employment with the
Company.
NOW, THEREFORE, in consideration of the mutual promises and of the
representations, warranties, covenants and agreements herein contained, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Employment. The Company shall employ Employee, and Employee
hereby accepts such employment and agrees to perform his duties and
responsibilities hereunder, in accordance with the terms and conditions
hereinafter set forth. Notwithstanding anything to the contrary set forth in
this Agreement, this Agreement shall be null and void and of no further force
and effect unless and until the consummation of the Transaction, it being
understood that any waiver under or amendment or modification to the Purchase
Agreement by any of the parties thereto shall not affect or otherwise modify
in any regard Employee's obligations hereunder.
1.1 Employment Term. The term of this Agreement including the
original and any renewal terms (the "Employment Term") shall commence upon
the date of this Agreement, and shall continue for two years, unless
terminated prior thereto in accordance with Section 8 hereof. Unless either
party elects to terminate this Agreement at the end of the original or any
renewal term by giving the other party written notice of such election at
least 90 days before the expiration of the then current term, this Agreement
shall be deemed to have been renewed for an additional term of one year
commencing on the day after expiration of the then current term. Nothing in
this Agreement shall be construed as giving Employee any right to be retained
in the employ of the Company beyond the expiration of the Employment Term,
and Employee specifically acknowledges that he shall be subject to discharge
pursuant to Section 8 hereof.
1.2 Duties and Responsibilities.
(a) During the Employment Term, Employee shall serve as
Chief Operating Officer and perform all duties and accept all
responsibilities incidental to and in keeping with such position. Employee
shall also cooperate fully with the board of directors and other executive
officers of the Company.
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(b) Employee represents to the Company that he is not
subject to or a party to any employment agreement, non-competition covenant,
non-disclosure agreement or other agreement, covenant, understanding or
restriction of any nature whatsoever which would prohibit Employee from
executing this Agreement and performing fully his duties and responsibilities
hereunder, or which would in any manner, directly or indirectly, limit or
affect the duties and responsibilities which may now or in the future be
assigned to Employee by the Company.
(c) Employee shall at all times comply with policies and
procedures adopted by the Company for employees of the Company and its
subsidiaries, including without limitation, procedures and policies regarding
conflicts of interest.
1.3. Extent of Service. During the Employment Term, Employee
agrees to use his best efforts to carry out his duties and responsibilities
under Section 1.2 hereof and to devote his full time, attention and energy
thereto. Except as provided in Section 5 hereof, the foregoing shall not be
construed as preventing Employee from making investments in other businesses
or enterprises provided that Employee agrees not to become engaged in any
other business activity which may, in the sole judgment of the board of
directors of the Company, interfere with his ability to discharge his duties
and responsibilities to the Company. Employee further agrees not to work
either on a part-time or independent contracting basis for any other business
or enterprise during the Employment Term without the prior written consent of
the board of directors of the Company.
1.4. Base Compensation.
(a) For all the services rendered by Employee hereunder,
the Company shall pay Employee an annual salary of $100,000 for the
Employment Term, plus in each additional year such additional amounts, if
any, as may be approved by the Company's board of directors at Employee's
annual review to be held on or about the anniversary date of the Employment
Term (annual increases exceeding 10% must be approved unanimously by the
board of directors), less withholding required by law or agreed to by
Employee.
(b) During the Employment Term, Employee shall also be
entitled to participate in such vacation pay and other fringe benefit plans,
if any, as may be authorized from time to time by the board of directors in
its sole discretion for employees of the Company.
1.5. Bonus. In addition to the base compensation provided
under Section 1.4 hereof, Employee shall be entitled to receive from the
Company during the Employment Term bonus compensation for each complete
calendar year during the Employment Term, such bonus compensation to be
approved by a majority of the board of directors (excluding Employee), less
withholding required by law or agreed to by Employee.
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2. Expenses. Employee shall be reimbursed for the reasonable
business expenses incurred by him in connection with his performance of
services hereunder during the Employment Term upon presentation of an
itemized account and written proof of such expenses in accordance with
policies established by the Company.
3. Developments. All developments, including inventions, whether
patentable or otherwise, trade secrets, discoveries, improvements, ideas and
writings which either directly or indirectly relate to or may be useful in
the business of the Company or any of its affiliates (the "Developments")
which Employee, either by himself or in conjunction with any other person or
persons, shall conceive, make, develop, acquire or acquire knowledge of
during the Employment Term or at any time thereafter during which he is
employed by the Company, shall, on and after the closing of the Transaction,
become the sole and exclusive property of the Company. Employee hereby
assigns, transfers and conveys, and agrees to so assign, transfer and convey
to the Company, all of his right, title and interest in and to any and all
such Developments and to disclose fully as soon as practicable, in writing,
all such Developments to the board of directors of the Company. At any time
and from time to time, upon the request and at the expense of the Company,
Employee will execute and deliver any and all instruments, documents and
papers, give evidence and do any and all other acts which, in the opinion of
counsel for the Company, are or may be necessary or desirable to document
such transfer or to enable the Company to file and prosecute applications for
and to acquire, maintain and enforce any and all patents, trademark
registrations or copyrights under United States or foreign law with respect
to any such Developments or to obtain any extension, validation, reissue,
continuance or renewal of any such patent, trademark or copyright. The
Company will be responsible for the preparation of any such instruments,
documents and papers and for the prosecution of any such proceedings and will
reimburse Employee for all reasonable expenses incurred by him in compliance
with the provisions of this Section.
4. Confidential Information. Employee recognizes and acknowledges
that by reason of his employment by and service to the Company he will
continue to have (both during the Employment Term and at any time thereafter
during which he may be employed by the Company), access to confidential
information of the Company and its affiliates, including without limitation,
information and knowledge pertaining to products and services offered,
inventions, innovations, designs, ideas, plans, trade secrets, proprietary
information, advertising, distribution and sales methods and systems, sales
and profit figures, customer and client lists, and relationships between the
Company and its affiliates and dealers, customers, clients, suppliers and
others who have business dealings with the Company and its affiliates
("Confidential Information"). Employee acknowledges that such Confidential
Information is a valuable and unique asset and covenants that he will not,
either during or at any time after the Employment Term, disclose any such
Confidential Information to any person for any reason whatsoever (except as
his duties described herein may require) without the prior written
authorization of the board of directors of the Company, unless such
information is in the public domain through no fault of Employee or except as
may be required by law.
5. Non-Competition.
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(a) During the Employment Term and for the one-year
period following the date the employment of Employee by the Company or any of
its affiliates has ended (whether or not such employment is pursuant to this
Agreement), Employee will not, unless acting pursuant hereto or with the
prior written consent of the board of directors of the Company, directly or
indirectly, own, manage, operate, join, control, finance or participate in
the ownership, management, operation, control or financing of, or be
connected as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with or use or permit his name to be
used in connection with, any business or enterprise engaged in the business
in which the Company is engaged at the date of termination of Employee's
employment by the Company in any portion of the United States.
(b) The foregoing restriction shall not be construed to
prohibit the ownership by Employee of not more than five percent (5%) of any
class of securities of any corporation which is engaged in any of the
foregoing businesses having a class of securities registered pursuant to the
Securities Exchange Act of 1934, provided that such ownership represents a
passive investment and that neither Employee nor any group of persons
including Employee in any way, either directly or indirectly, manages or
exercises control of any such corporation, guarantees any of its financial
obligations, otherwise takes any part in its business, other than exercising
his rights as a shareholder, or seeks to do any of the foregoing.
6. No Solicitation. During the Employment Term and for the
one-year period following the date the employment of Employee by the Company
or any of its affiliates has ended (whether or not such employment is
pursuant to this Agreement), Employee will not, either directly or
indirectly, (i) call on or solicit any person, firm, corporation or other
entity who or which at the time of such termination was, or within two years
prior thereto had been, a customer of the Company with respect to the
activities prohibited by Section 5 hereof or (ii) solicit the employment of
any person who was employed by the Company on a full or part-time basis at
any time during the last year of Employee's employment, unless such person
prior to such solicitation of employment was involuntarily discharged by the
Company.
7. Equitable Relief.
(a) Employee acknowledges that the restrictions contained
in Sections 3, 4, 5 and 6 hereof are reasonable and necessary to protect the
legitimate interests of the Company and its affiliates, that the Company
would not have entered into this Agreement or the Purchase Agreement, in the
absence of such restrictions, and that any violation of any provision of
those Sections will result in irreparable injury to the Company. Employee
represents that his experience and capabilities are such that the
restrictions contained in Sections 5 and 6 hereof will not prevent Employee
from obtaining employment or otherwise earning a living at the same general
level of economic benefit as is provided by his current employment or as is
anticipated by this Agreement. EMPLOYEE FURTHER REPRESENTS AND ACKNOWLEDGES
THAT (i) HE HAS BEEN ADVISED BY THE COMPANY TO CONSULT HIS OWN LEGAL COUNSEL
IN RESPECT OF THIS AGREEMENT, (ii) THAT HE HAS HAD FULL OPPORTUNITY, PRIOR TO
EXECUTION OF THIS AGREEMENT, TO REVIEW THOROUGHLY THIS AGREEMENT WITH HIS
COUNSEL, AND (iii) HE
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HAS READ AND FULLY UNDERSTANDS THE TERMS AND PROVISIONS OF THIS AGREEMENT.
(b) Employee agrees that the Company shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits
and other benefits arising from any violation of Sections 3, 4, 5 or 6
hereof, which rights shall be cumulative and in addition to any other rights
or remedies to which the Company may be entitled. In the event that any of
the provisions of Sections 3, 4, 5 or 6 hereof should ever be adjudicated to
exceed the time, geographic, product or service, or other limitations
permitted by applicable law in any jurisdiction, then such provisions shall
be deemed reformed in such jurisdiction to the maximum time, geographic,
product or service, or other limitations permitted by applicable law.
(c) Employee irrevocably and unconditionally (i) agrees
that any suit, action or other legal proceeding arising out of this
Agreement, including without limitation, any action commenced by the Company
for preliminary or permanent injunctive relief or other equitable relief, may
be brought in any court of general jurisdiction in the Commonwealth of
Pennsylvania, (ii) consents to the non-exclusive jurisdiction of any such
court in any such suit, action or proceeding, and (iii) waives any objection
which Employee may have to the laying of venue of any such suit, action or
proceeding in any such court. Employee also irrevocably and unconditionally
consents to the service of any process, pleadings, notices or other papers in
a manner permitted by the notice provisions of Section 12 hereof.
(d) Employee agrees that he will provide, and that the
Company may similarly provide, a copy of Sections 3, 4, 5 and 6 of this
Agreement to any business or enterprise (i) which he may directly or
indirectly own, manage, operate, finance, join, participate in the ownership,
management, operation, financing, or control of, or (ii) with which he may be
connected with as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise, or in connection with which he may
use or permit his name to be used; provided, however, that this provision
shall not apply in respect of Sections 5 and 6 of this Agreement after
expiration of the time periods set forth therein.
8. Termination. This Agreement shall terminate prior to the
expiration of its term set forth in Section 1.1 above upon the occurrence of
any one of the following events:
8.1. Disability. In the event that Employee is unable fully to
perform his duties and responsibilities hereunder to the full extent required
by the Company by reason of illness, injury or incapacity for 90 consecutive
days, during which time he shall continue to be compensated as provided in
Section 1.4 hereof (less any payments due Employee under disability benefit
programs, including Social Security disability, worker's compensation, and
disability retirement benefits), this Agreement may be terminated by the
Company, and the Company shall have no further liability or obligation to
Employee for compensation hereunder; provided, however, that Employee will be
entitled to receive the payments prescribed under any disability benefit plan
which may be in effect for employees of the Company and in which he
participated. Employee agrees, in the event of any dispute under this
Section 8.1, to submit to a physical
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examination by a licensed physician selected by the board of directors of the
Company.
8.2. Death. In the event that Employee dies during the
Employment Term, the Company shall pay to his executors, legal
representatives or administrators any amounts due and owing to the date of
death to Employee as part of the salary set forth in Section 1.4(a) hereof
through the date of death, and thereafter the Company shall have no further
liability or obligation hereunder to his executors, legal representatives,
administrators, heirs or assigns or any other person claiming under or
through him; provided, however, that Employee's estate or designated
beneficiaries shall be entitled to receive the payments prescribed for such
recipients under any death benefit plan which may be in effect for employees
of the Company and in which Employee participated.
8.3. Cause. Nothing in this Agreement shall be construed to
prevent its termination by the Company at any time for "cause." For purposes
of this Agreement, "cause" shall mean the failure of Employee to perform or
observe any of the terms or provisions of this Agreement in any material
respect after written notice of such failure and an opportunity to cure,
dishonesty to the board of directors of the Company, conviction of a crime
involving moral turpitude, substance abuse which affects Employee's
performance of his duties under this Agreement, misappropriation of funds or
disparagement of the Company (or its management). In the event of
termination for cause, the Company shall have no further liability or
obligation to Employee for compensation hereunder. Such termination shall be
effected by notice thereof delivered by the Company to Employee and shall be
effective as of the date of such notice.
8.4. Without Cause by the Company. The Company may terminate
this Agreement upon not less than 90 days' notice to Employee at and for the
Company's sole convenience and in its sole discretion and without specifying
any cause as set forth in Section 8.3 hereof. In such event, and contingent
upon the resignation of Employee from all positions of any nature which
Employee may then have held with the Company and any of its affiliates, the
Company (i) shall continue to pay Employee until the end of the notice period
plus severance equal to 18 months base salary set forth in Section 1.4(a)
hereof which Employee was receiving prior to the effective date of such
termination or (ii) in lieu of 90 days' notice, pay Employee severance equal
to 21 months (amount in (i) plus 3 months base salary set forth in Section
1.4(a) hereof which Employee was receiving prior to the effective date of
such termination.
9. Survival. Notwithstanding the termination of this Agreement by
the Company by reason of Employee's disability under Section 8.1, for cause
under Section 8.3, or without cause under Section 8.4, his obligations under
Sections 3, 4, 5, and 6 hereof shall survive and remain in full force and
effect for the periods therein provided, and the provisions for equitable
relief against Employee in Section 7 hereof shall continue in force, along
with the provisions of Sections 9 through 17 hereof.
10. Governing Law. This Agreement shall be governed by and
interpreted under the laws of the State of Delaware without giving effect to
any conflict of laws provisions.
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11. Litigation Expenses. In the event of a lawsuit by either party
to enforce the provisions of this Agreement, the prevailing party shall be
entitled to recover reasonable costs, expenses and attorney's fees from the
other party.
12. Notices. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall
be in writing and shall be deemed to have been given when hand delivered or
mailed by registered or certified mail, as follows (provided that notice of
change of address shall be deemed given only when received):
If to the Company, to:
Secure Commerce Services, Inc.
00 Xxxxxx Xxxxx, Xxxxx X00
Xxxxxxxxx, XX 00000
Attn: President
Telecopy: (000) 000-0000
With a required copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
If to Employee, to:
Flint X. Xxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxxx Xxx. XX 00000
or to such other names or addresses as the Company or Employee, as the case
may be, shall designate by notice to each other person entitled to receive
notices in the manner specified in this Section.
13. Entire Agreement; Contents of Agreement.
(a) This Agreement supersedes all prior agreements and
sets forth the entire understanding among the parties hereto with respect to
the subject matter hereof and cannot be changed, modified, extended or
terminated except upon written amendment executed by Employee and approved by
the board of directors of the Company and executed on behalf of the Company
by a duly authorized officer. Employee acknowledges that the effect of this
provision is that no oral modifications of any nature whatsoever to this
Agreement shall be permitted.
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(b) Employee acknowledges that from time to time, the
Company may establish, maintain and distribute employee manuals or handbooks
or personnel policy manuals, and officers or other representatives of the
Company may make written or oral statements relating to personnel policies
and procedures. Such manuals, handbooks and statements are intended only for
general guidance. No policies, procedures or statements of any nature by or
on behalf of the Company (whether written or oral, and whether or not
contained in any employee manual or handbook or personnel policy manual), and
no acts or practices of any nature, shall be construed to modify this
Agreement or to create express or implied obligations of any nature to
Employee.
14. Assignment. 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, executors, administrators, legal representatives,
successors and assigns of the parties hereto, except that the duties and
responsibilities of Employee hereunder are of a personal nature and shall not
be assignable or delegable in whole or in part by Employee.
15. Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect any other provision or application of this Agreement which can be
given effect without the invalid or unenforceable provision or application
and shall not invalidate or render unenforceable such provision or
application in any other jurisdiction.
16. Remedies Cumulative; No Waiver. No remedy conferred upon the
Company by this Agreement is intended to be exclusive of any other remedy,
and each and every such remedy shall be cumulative and shall be in addition
to any other remedy given hereunder or now or hereafter existing at law or in
equity. No delay or omission by the Company in exercising any right, remedy
or power hereunder or existing at law or in equity shall be construed as a
waiver thereof, and any such right, remedy or power may be exercised by the
Company from time to time and as often as may be deemed expedient or
necessary by the Company in its sole discretion.
17. Miscellaneous. All section headings are for convenience only.
This Agreement may be executed in several counterparts, each of which is an
original. It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound,
have executed this Agreement as of the date first above written.
SECURE COMMERCE SERVICES, INC.
By /s/ Xxxxxx X. XxXxxxxxxx
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Name: Xxxxxx X. XxXxxxxxxx
Title: President
EMPLOYEE
/s/ Flint X. Xxxx
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Flint X. Xxxx
