Employment Agreement
Exhibit
10.20
This
Employment Agreement (this "Agreement"),
dated as of August 13, 2009, to be effective as of May 5, 2009 (the “Effective
Date”), is entered into between ACIES CORPORATION, a Nevada
corporation, having a place of business at 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Employer"),
and XXXX XXXXX, an
individual ("Executive").
WHEREAS, the parties were
previously party to an Employment Agreement dated May 5, 2006, which expired on
May 4, 2009 (the “Prior
Agreement”);
WHEREAS, Employer desires to
continue to employ Executive as its President and Chief Executive Officer;
and
WHEREAS, Executive is willing
to accept such continued employment on the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in
consideration of the mutual agreements set forth herein, Employer and Executive
hereby agree as follows:
ARTICLE
I
EMPLOYMENT;
POSITION, DUTIES AND AUTHORITY
1.01 Employment.
Employer agrees to, and does hereby, continue to employ Executive, and Executive
agrees to, and does hereby accept such continued employment, upon the terms and
subject to the conditions set forth in this Agreement. Executive represents and
warrants to Employer that (A) Executive has the legal capacity to execute and
perform this Agreement, (B) this Agreement is a valid and binding agreement
enforceable against Executive according to its terms, and (C) the execution and
performance of this Agreement by Executive does not violate the terms of any
existing agreement or understanding to which Executive is a party or by which
Executive otherwise may be bound.
1.02
Position, Duties and Authority. During the Term (as defined below), Executive
shall serve as President and Chief Executive Officer of Employer and its
subsidiary, Acies, Inc., and in such other position or capacity for Employer
and/or its affiliates and subsidiaries as Employer may request, and shall have
such responsibilities, duties and authority that are customary for the positions
of President and Chief Executive Officer, subject at all times to the control
and direction of the Board of Directors of Employer (the "Employer
Board") and the Board of Directors of Acies, Inc. (the "Acies,
Inc. Board," and together with the Employer Board, the "Boards")
and shall perform such services as customarily are provided by the President and
Chief Executive Officer of a corporation and such other services consistent with
his positions, as shall be assigned to him from time to time by the Boards.
During the Term, Employer shall take reasonable and lawful actions to cause
Executive to be re-nominated to serve on the Boards. During the Term, Executive
shall (A) report to the Boards, (B) serve Employer and its affiliates and
subsidiaries faithfully and to the best of Executive's ability, and (C) except
during any period of illness or incapacity or vacation to which he is entitled,
devote all of Executive's business time, attention, skill and efforts
exclusively to the business and affairs of Employer and its affiliates and
subsidiaries and the promotion of their interests; provided, however, Executive
may engage in charitable, educational, religious, civic and similar types of
activities and serve as a member of the board of directors of other entities to
the extent that such activities and/or memberships do not inhibit or prohibit
the performance of Executive's duties hereunder, inhibit, conflict with or
compete with the business of Employer or its affiliates and subsidiaries, or
otherwise violate the terms of Article V below and provided that Executive
promptly discloses such activities and/or memberships to the
Boards.
Nothing
in this Section 2.01 shall be deemed to preclude Executive from making passive
investments (constituting ownership of less than five (5%) percent of any class
of equity interest) in a publicly held corporation, or passive investments
(constituting ownership of less than a controlling interest) in a non-public
business, firm or entity, so long as such investment does not interfere with
Executive's duties to Employer, its affiliates or subsidiaries or otherwise
violate the terms of the provisions set forth in Article V hereof. Executive
shall perform his duties in a diligent manner; shall not engage in activities
that are or could be detrimental to the existing or future business or
reputation of Employer or its affiliates and subsidiaries; and shall observe and
comply with all laws, customs, standards of business ethics and honest business
practices, and policies and procedures of Employer and its affiliates and
subsidiaries in place from time to time. Executive's principal base of operation
for the performance of Executive's duties under this Agreement shall be in
Miami, Florida; provided, however, that Executive shall perform such duties and
responsibilities at such other places as shall from time to time be reasonably
necessary to fulfill Executive's obligations under this Agreement in the
discretion of Employer.
Furthermore,
Executive shall not be precluded from serving on the Board of Directors of
and/or performing services for Merchant Capital Holding Corp. or Star Capital
Management, LLC or any of their subsidiary companies, which entities the
Employer acknowledges currently provide services in competition with the
Employer (the “Excluded
Businesses”).
ARTICLE
II
TERM
2.01 Term
of Employment. Executive's employment under this Agreement shall commence on May
5, 2009 (the "Commencement
Date") and, subject to earlier termination pursuant to Article IV hereof,
shall continue until May 4, 2012 (the "Term");
provided, however, unless either party hereto gives written notice to the other
at least ninety (90) days prior to the expiration of the then-current Term that
such party elects not to renew this Agreement, the then-current Term shall be
automatically extended for additional one-year periods. The election of Employer
or Executive not to extend the then-current Term, as provided in this Section
2.01, shall not be deemed to be a termination by Employer under Sections 4.01(A)
or 4.01(B) or by Executive for Good Reason (as defined below) under Section
4.01(C), and, in such event, Executive only shall be entitled to the payments
and benefits set forth in Section 4.02(B).
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ARTICLE
III
COMPENSATION
AND BENEFITS; EXPENSES
3.01 Compensation
and Benefits. For all services rendered by Executive in any capacity during the
Term, including, without limitation, services as an officer, director or member
of any committee of Employer, or any subsidiary, affiliate or division thereof,
Executive shall be compensated as follows (subject, in each case, to the
provisions of Article IV below):
(A)
Base Salary. During the Term, Employer shall pay to Executive a base salary at
the initial rate of $215,000 on an annualized basis ("Base
Salary"). Executive's Base Salary shall be subject to periodic review
(which shall occur at least annually) and such periodic adjustments as the
Employer Board or the Compensation Committee of the Employer Board (the "Compensation
Committee") shall deem appropriate; provided, however, in no event shall
any decrease in Executive's Base Salary be greater than the average percentage
decrease applicable to Employer's and Acies, Inc.'s other employees. The term
"Base
Salary" as used in this Agreement shall refer to Base Salary as may be
adjusted from time to time. Base Salary shall be payable in accordance with the
customary payroll practices of Employer in place from time to time.
(B) Bonuses.
(i) Incentive
Bonus. During the Term, Executive shall be eligible to earn periodically an
incentive bonus (the "Incentive
Bonus"). Qualification for, and the amount of, each Incentive Bonus shall
be related to the achievement of milestones and/or objectives during the
applicable performance period (the "Performance
Period") established by the Employer Board or the Compensation Committee
from time to time. For the fiscal year ending 3/31/10, Executive shall be
eligible to earn quarterly Incentive Bonus payments in the aggregate annual
maximum amount of up to 70% of Executive's annualized Base Salary based upon the
achievement of milestones and objectives established by the Employer Board
relating to revenue growth, net income, and cash flow from operations. The
Incentive Bonus milestones and objectives, amount, manner and method of payment,
and applicable Performance Periods for periods following 3/31/10 shall be
established by the Employer Board or the Compensation Committee in its
discretion.
(ii) Discretionary
Bonus. During the Term, Executive also shall be eligible to earn a discretionary
annual bonus, in such amount as may be determined by the Employer Board or the
Compensation Committee ("Discretionary
Bonus"). Qualification for the Discretionary Bonus and the amount of the
Discretionary Bonus, if any, shall be determined by the Employer Board or the
Compensation Committee based upon Employer's and its subsidiaries' financial
performance and both a subjective and objective review of Executive's
achievements throughout the applicable fiscal year which may include, without
limitation, the extent to which Executive (a) achieved his goals and objectives
for the fiscal year, (b) carried out the elements of Employer's and its
subsidiaries' strategic plans, (c) was effective in dealing with challenges, (d)
improved infrastructure, (e) achieved a significantly enhanced distribution
network, (e) succeeded in obtaining financing, and (f) strengthened Employer's
and its subsidiaries' management team, as well as other tangible and intangible
factors in the Employer Board's or the Compensation Committee's discretion. The
Discretionary Bonus, if any, shall be determined as of the end of each full
fiscal year during the Term, payable within three and one-half (3.5) months
after the last day of each such fiscal year. Executive's target Discretionary
Bonus for the fiscal year ending 3/31/10 shall be 30% of Executive's annualized
Base Salary; provided, however, the actual amount of the Discretionary Bonus, as
determined by the Employer Board or the Compensation Committee, may be less than
or greater than the target amount. Executive's target Discretionary Bonus for
periods following 3/31/10 shall be determined by the Employer Board or the
Compensation Committee in its discretion.
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To be
eligible to earn any Incentive Bonus (or any portion thereof), Executive must be
employed by Employer on the last day of the applicable Performance Period.
Further, to be eligible to receive any Discretionary Bonus (or portion thereof),
Executive must be employed by Employer both at the time the amount of the
Discretionary Bonus, if any, is determined, and at the time any such
Discretionary Bonus is to be paid.
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(C)
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Equity
Compensation.
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(i) Immediately
upon the execution of this Agreement, the Board of Directors of the Employer
shall take whatever action necessary to approve, ratify and designate 1,000
shares of the Employer’s Series A Preferred Stock (with such terms and
conditions as described in the Series A Preferred Stock Designation, attached
hereto as Exhibit
A (the “Designation”)).
Following the approval, designation and valid filing of the Designation with the
Secretary of State of Nevada, the Employer shall issue Executive all 1,000
shares of Series A Preferred Stock in consideration for Executive agreeing to
the terms and condition of this Agreement, which shares shall be Executive’s
sole property, and which ownership of such shares shall in no way be dependent
on Executive’s performance of this Agreement or the Term hereof.
(ii) During
the Term, Executive shall be eligible to receive from time to time additional
stock option grants and/or restricted stock awards in amounts to be approved by
the Employer Board or the Compensation Committee in its sole discretion. The
additional stock option grants and restricted stock awards, if any, will be
based upon a combination of company performance and performance by Executive, as
determined by the Employer Board or the Compensation Committee in its sole
discretion. Such additional stock option grants or restricted stock awards will
be subject to the terms and conditions established within any equity
compensation plan as may be in place from time to time ("Equity
Compensation Plan") and a separate stock option grant or restricted stock
award agreement between Employer and Executive that sets forth the terms and
conditions of the award (e.g., exercise price, expiration date and vesting
schedule of stock options; the restricted period and/or other restrictions such
as performance objectives relating to stock awards). With respect to any option
grants or restricted stock awards granted on or after the Commencement Date, the
terms of the Equity Compensation Plan and the applicable stock option or
restricted stock award agreement shall govern Executive's rights and obligations
upon termination.
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(D) Benefits.
During the Term, Executive shall be entitled to participate in all Employer's
employee benefit plans and programs (excluding severance plans, if any) as
Employer generally maintains from time to time during the Term for the benefit
of its senior executive-level employees, in each case subject to the eligibility
requirements, enrollment criteria and the other terms and provisions of such
plans or programs. Employer may amend, modify or rescind any employee benefit
plan or program and change employee contribution amounts to benefit costs
without notice in its discretion.
(E) Vacation,
Sick and Personal Days. During the Term, Executive shall be entitled to paid
vacation, sick and personal days in accordance with Employer's policies with
respect to such vacation, sick and personal days in place from time to
time.
3.02 Expenses.
Executive shall be entitled to receive reimbursement from Employer for all
reasonable out-of-pocket expenses incurred by Executive during the Term in
connection with the performance of Executive's duties and obligations under this
Agreement, according to Employer's expense account and reimbursement policies in
place from time to time and provided that Executive shall submit reasonable
documentation with respect to such expenses. During the Term, Employer also
shall pay, or reimburse Executive, for the premium payments (not to exceed
$1,350 per month) for an up to $1,000,000 whole life insurance policy naming
Executive's designee as beneficiary. In addition, during the Term, Employer
shall provide Executive with an automobile allowance in an amount not to exceed
$1,500 per month, which allowance shall be intended to cover the cost of
Executive's vehicle and insurance thereon, as well as all incidental costs
incurred by the Executive related to the operation of the vehicle, including
gas, maintenance, parking/garage and tolls.
ARTICLE
IV
TERMINATION
4.01 Events
of Termination. This Agreement and Executive's employment hereunder shall
terminate upon the occurrence of any one or more of the following
events:
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(A)
Termination by Employer for Cause. Employer may, at its option, terminate this
Agreement and Executive's employment hereunder for Cause (as defined herein)
immediately upon giving notice of termination to Executive. As used in this
Agreement, "Cause"
shall mean Executive's (i) conviction of, guilty plea to or confession of guilt
of a felony or act involving moral turpitude, (ii) commission of a fraudulent,
illegal or dishonest act in respect of Employer or any of its affiliates or
subsidiaries, (iii) willful misconduct or gross negligence that reasonably could
be expected to be injurious in the reasonable discretion of Employer to the
business, operations or reputation of Employer or any of its affiliates or
subsidiaries (monetarily or otherwise), (iv) material violation of Employer's
policies or procedures in effect from time to time; provided, however, to the
extent that such violation is subject to cure, Executive shall have an
opportunity to cure such violation within ten (10) days following written notice
of such violation from Employer, (v) after a written warning and a ten (10) day
opportunity to cure such non-performance, material failure or refusal to perform
specific written directives consistent with his duties and responsibilities as
set forth in Section 1.02, (vi) breach or threatened breach of Executive's
obligation under Article V, or (vii) material breach of any other term of this
Agreement; provided, however, to the extent such breach is subject to cure,
Executive shall have an opportunity to cure such breach within ten (10) days
following written notice such breach from Employer.
For purposes of this Section 4.01(A), no act or failure to act, on the part of
Executive, shall be considered "willful"
unless it is done, or omitted to be done, by Executive in bad faith or without
reasonable belief that Executive's action or omission was in the best interests
of Employer. Any act, or failure to act, based upon authority given pursuant to
a resolution duly adopted by the Employer Board or based upon the advice of
counsel for Employer shall be conclusively presumed to be done, or omitted to be
done, by Executive in good faith and in the best interests of Employer.
Employer's termination of the Executive's employment shall not be deemed to be
for "Cause"
unless and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Employer Board at a meeting of the Employer Board
called and held for such purpose (after reasonable notice is provided to
Executive and Executive is given an opportunity, together with counsel, to be
heard before such Employer Board), finding that, in the good faith opinion of
the Employer Board, Executive is guilty of the conduct described in any of
subparagraphs (i) through (vii) above, and specifying the particulars thereof in
detail. Executive acknowledges and agrees that placing Executive on temporary
paid leave pending a good faith inquiry into whether Executive has engaged in
conduct that could constitute "Cause"
under this Agreement shall not be considered Good Reason.
(B) Without Cause by
Employer. Employer may, at its option, at any time terminate Executive's
employment for no reason or for any reason whatsoever (other than for Cause or
as a result of Executive's death or Disability) by providing thirty (30) days
advance written notice to Executive of its intention to terminate this Agreement
and Executive's employment hereunder. During all or a portion of the thirty (30)
day notice period described in the preceding sentence, Employer may place
Executive on a paid leave of absence, remove Executive from his position(s) with
Employer and/or its affiliates and subsidiaries, and/or require Executive to
provide services relating to the transition of his duties.
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(C) Termination
By Executive. Executive may terminate this Agreement and Executive's employment
hereunder without Good Reason by giving ninety (90) days prior written notice to
Employer or for Good Reason by giving thirty (30) days prior written notice of
termination to Employer; provided, however, that Employer reserves the right to
accept Executive's notice of termination and to accelerate such notice and make
Executive's termination effective immediately, or on any other date prior to
Executive's intended last day of work as Employer deems appropriate. For
purposes of this Agreement, "Good
Reason" shall mean, in the absence of a written consent of
Executive:
(i) any
action by Employer that results in a material diminution in Executive's title,
position, authority or duties from those contemplated by Section
1.02;
(ii) the
failure of Employer to pay any amounts due to Executive or to fulfill any other
material obligations to Executive under this Agreement;
(iii) a
reduction in Executive's Base Salary, unless such reduction is not greater than
the average percentage reduction in the base salary of Employer's and Acies,
Inc's other employees;
(iv) a
change by Employer in the location at which Executive performs his principal
duties for Employer to a new location that is both (a) outside a radius of 35
miles from Executive's principal residence, and (b) more than 20 miles from the
location at which Executive performs his principal duties for Employer
immediately prior to the date on which such change occurs; or
(v) any
failure by Employer to comply with and satisfy its obligations pursuant to
Section 6.01(B) below.
Notwithstanding
the foregoing, the occurrence of any of the events or actions described in
clauses (i)-(v) (inclusive) above shall not constitute "Good
Reason" if, within thirty (30) days after the giving by Executive of
notice to Employer of the occurrence or existence of an event or circumstance
that would otherwise constitute "Good
Reason", such event of circumstance has been fully corrected and
Executive has been compensated for any actual damages or losses resulting
therefrom.
(D) Death. In the
event of Executive's death, this Agreement and Executive's employment hereunder
shall automatically terminate on the date of death.
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(E) Disability.
To the extent permitted by law, in the event of Executive's physical or mental
disability that prevents Executive from performing Executive's duties under this
Agreement for a period of at least 90 consecutive days in any 12-month period or
120 non-consecutive days in any 12-month period, Employer may terminate this
Agreement and Executive's employment hereunder upon written notice to
Executive.
(F) Mutual
Agreement. This Agreement and Executive's employment hereunder may be terminated
at any time by the mutual agreement of Employer and Executive.
(G) Expiration
of Term. This Agreement and Executive's employment hereunder shall automatically
terminate upon the expiration of the Term.
4.02 Employer's
Obligations Upon Termination.
(A) For
Cause; Other than For Good Reason; Mutual Agreement. If, during the Term,
Employer shall terminate this Agreement and Executive's employment hereunder for
Cause, Executive shall terminate this Agreement and Executive's employment
hereunder other than for Good Reason, or this Agreement and Executive's
employment hereunder shall terminate by mutual agreement of the parties, then
(i) Employer's sole obligation to Executive under this Agreement or otherwise
shall be to: (a) on the next regular paydate following the date of termination,
(1) pay to Executive any Base Salary earned, but not yet paid to Executive,
prior to the date of such termination, (2) reimburse Executive for any expenses
incurred by Executive through the date of termination, and (3) pay to Executive
any accrued, but unused, vacation days through the date of termination; (b) pay
to Executive any Incentive Bonus payments earned, but not yet paid or payable,
with respect to a Performance Period that ended prior to the date of
termination, which Incentive Bonus payments shall be payable on the date that
such Incentive Bonus payments would otherwise be paid if Executive's employment
had not terminated or, if such Incentive Bonus payments were due and payable on
the date of termination, such Incentive Bonus payments shall be made on the next
regular payroll date following the date of termination; and (c) pay and/or
provide any amounts or benefits that are vested amounts or vested benefits or
that Executive is otherwise entitled to receive under any plan, program, policy
or practice (with the exception of those, if any relating to severance) on the
date of termination, in accordance with such plan, program, policy or practice
(clauses (a), (b) and (c) of this sentence are collectively referred to herein
as the "Accrued
Obligations"), (ii) any granted options pursuant to stock incentive plans
that are unvested as of the date of termination shall be forfeited in such
option grants, and (iii) any granted options pursuant to stock incentive plans
that are vested as of the date of termination shall remain exercisable for a
period of thirty (30) days following the date of termination, but in no event
later than their expiration date prior to the termination, except as otherwise
provided in such option grants.
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(B) Expiration
of Term. Upon the expiration of the Term, this Agreement and Executive's
employment hereunder shall terminate and Employer's sole obligation to Executive
under this Agreement or otherwise shall be to pay and/or provide, as applicable,
the Accrued Obligations, which Accrued Obligations shall be paid or provided in
manner described in Section 4.02(A) above.
(C) Death. If, during
the Term, this Agreement and Executive's employment hereunder shall terminate as
a result of Executive's death, then (i) Employer's sole obligation to
Executive's estate under this Agreement or otherwise shall be to: (a) pay and/or
provide, as applicable, to Executive's estate the Accrued Obligations, which
Accrued Obligations shall be paid or provided in manner described in Section
4.02(A) above; and (b) if Executive's eligible dependents timely elect COBRA
coverage, Employer shall waive their healthcare continuation payments under
COBRA for a period of twelve (12) months following the date of Executive's
death, and (ii) all options granted shall be deemed fully vested as of the date
of Executive's death and shall remain exercisable by Executive's estate until
such date(s) provided in the option grants.
(D) Disability.
If, during the Term, this Agreement and Executive's employment hereunder shall
terminate as a result of Executive's Disability, then (i) Employer's sole
obligation to Executive under this Agreement or otherwise shall be to: (a) pay
and/or provide, as applicable, to Executive the Accrued Obligations, which
Accrued Obligations shall be paid or provided in manner described in Section
4.02(A) above; and (b) if Executive timely elects COBRA coverage and provided
that Executive continues to make contributions to such continuation coverage
equal to Executive's employee contribution in effect immediately preceding the
date of termination, Employer shall waive the remaining portion of Executive's
healthcare continuation payments under COBRA for a period of twelve (12) months
following Executive's termination (unless Executive sooner becomes eligible to
obtain alternate healthcare coverage from a new employer, in which case
Employer's obligation to waive the remaining portion of Executive's healthcare
continuation payments under COBRA shall cease), and (ii) all options granted
shall be deemed fully vested as of the date of Executive's termination and shall
remain exercisable by Executive until such date(s) provided in the option
grants.
(E)
Without Cause; for Good Reason
(i) If,
during the Term, Employer terminates this Agreement and Executive's employment
hereunder without Cause or Executive terminates this Agreement and Executive's
employment hereunder for Good Reason, then (a) Employer's sole obligation to
Executive under this Agreement or otherwise shall be to: (1) pay and/or provide,
as applicable, to Executive the Accrued Obligations, which Accrued Obligations
shall be paid or provided in manner described in Section 4.02(A) above; (2) if
Executive timely elects COBRA coverage and provided that Executive continues to
make contributions to such continuation coverage equal to Executive's employee
contribution in effect immediately preceding the date of termination, Employer
shall waive the remaining portion of Executive's healthcare continuation
payments under COBRA for a period of twelve (12) months following Executive's
termination (unless Executive sooner becomes eligible to obtain alternate
healthcare coverage from a new employer, in which case Employer's obligation to
waive the remaining portion of Executive's healthcare continuation payments
under COBRA shall cease); and (3) continue to pay to Executive his Base Salary
(at the rate in effect on the date of termination) for a period equal to the
greater of (y) twelve (12) months, or (z) through the end of the then-current
Term, and (b) all options granted shall be deemed fully vested as of the date of
termination and shall remain exercisable by Executive until such date(s)
provided in the option grants.
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(ii) Notwithstanding
the provisions of Section 4.02(E)(i) above, in the event that, within the period
commencing three (3) months prior to the consummation of a Change in Control (as
defined below) and ending on the twenty-four (24) month anniversary of the
consummation a Change in Control, Employer terminates this Agreement and
Executive's employment hereunder without Cause or Executive terminates this
Agreement and Executive's employment hereunder for Good Reason, then, in lieu of
the amounts to be paid and benefits to be provided by Employer pursuant to
Section 4.02(E)(i) above and subject to Section 6.07 below, (a) Employer's sole
obligation to Executive under this Agreement or otherwise shall be to: (1) pay
and/or provide, as applicable, to Executive the Accrued Obligations, which
Accrued Obligations shall be paid or provided in manner described in Section
4.02 (A) above; (2) if Executive timely elects COBRA coverage and provided that
Executive continues to make contributions to such continuation coverage equal to
Executive's employee contribution in effect immediately preceding the date of
termination, Employer shall waive the remaining portion of Executive's
healthcare continuation payments under COBRA for a period of eighteen (18)
months following Executive's termination (unless Executive sooner becomes
eligible to obtain alternate healthcare coverage from a new employer, in which
case Employer's obligation to waive the remaining portion of Executive's
healthcare continuation payments under COBRA shall cease); and (3) continue to
pay to Executive his Base Salary (at the rate in effect on the date of
termination) for a period equal to thirty (36) months, and (b) all options
granted shall be deemed fully vested as of the date of termination and shall
remain exercisable by Executive until such date(s) provided in the option
grants.
As used
in this Agreement, "Change in
Control" shall mean (a) in any one or series of related or unrelated
transactions (i) the sale of all or substantially all of the assets of Employer,
(ii) the merger or consolidation of Employer with another corporation or entity
in which Employer is not the surviving entity, (iii) the acquisition by any
single person or entity or related persons or entities of more than fifty
percent (50%) of the outstanding and issued voting securities of Employer, or
(iv) a merger or consolidation of Employer with another corporation or entity
that results in the former stockholders of Employer, as they existed immediately
prior to such merger or consolidation, owning in the aggregate less than 50% of
the outstanding voting securities of the surviving or resulting corporation or
entity, or (b) during any period of two consecutive years, when individuals who
at the beginning of such period constitute the Board of Directors of Employer
cease for any reason to constitute at least a majority thereof, unless the
election, or the nomination for election by the stockholders of Employer, of
each new director was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such
period
(iii) The
salary continuation payments contemplated by this Section 4.02(E) shall commence
to be paid on the next regular paydate following the 8th day after Executive's
execution and delivery of the Release (as defined in Section 4.02(F) below);
provided, however, if necessary to comply with the restriction in Section
409(A)(a)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code")
concerning payments to "specified
employees," the salary continuation payments shall commence on the first
regular paydate in the seventh (7th) month following the date of Executive's
termination and the first such payment shall include the cumulative amount of
any payments that would have been paid prior to such date if not for such
restriction, together with interest on such cumulative amount during the period
of such restriction at a rate, per annum, equal to the applicable federal
short-term rate (compounded monthly) in effect under Section 1274(d) of the Code
on the date of termination.
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(F) Release.
Except with respect to the Accrued Obligations, Employer shall not be required
to make the payments and provide the benefits specified in this Section 4.02
unless Executive or his estate, as applicable, executes and delivers to Employer
(and does not revoke) a general release in a form reasonably satisfactory to
Employer (the "Release").
The Release shall include, without limitation, a general release of Employer,
its affiliates and subsidiaries and their respective officers, directors,
managers, members, shareholders, partners, employees, agents and other related
parties (the "Releasees")
from all liability (excluding Employer's obligations to pay and provide the
post-termination payments and benefits described in Section 4.02), a covenant
not to xxx the Releasees and such other terms deemed reasonably necessary by
Employer for its protection.
(G) No Mitigation or
Offset. Executive shall have no obligation to mitigate the payments or benefits
provided in this Section 4.02 by seeking substitute employment or otherwise and,
except as provided in Sections 4.02(D)(i)(b), 4.02(E)(i)(a)(2), and
4.02(E)(ii)(a)(2), there shall be no offset of the payments or benefits provided
in Section 4.02. In addition, except as provided in Section 5.07 below,
Employer's obligation to make any payment pursuant to, or otherwise perform its
obligation under, this Agreement shall not be affected by any claim or other
right Employer may have against Executive.
ARTICLE
V
Confidentiality,
Assignment of Inventions,
Non-Competition,
Non-Solicitation and Other Covenants
5.01 Confidentiality.
While working or performing services for Employer or otherwise, Executive may
have previously developed or acquired, or may in the future develop or acquire,
knowledge in Executive's work or from directors, officers, employees, agents or
consultants of Employer and its subsidiaries and affiliates (collectively, the
"Company")
or otherwise of Confidential Information relating to the Company, its business,
potential business or that of their respective customers and merchants. "Confidential
Information" includes all trade secrets, know-how, show-how, theories,
technical, operating, financial, and other business information, whether or not
reduced to writing or other medium and whether or not marked or labeled
confidential, proprietary or the like, specifically including, but not limited
to, information regarding source codes, software programs, computer systems,
algorithms, formulae, apparatus, concepts, creations, costs, plans, materials,
enhancements, research, specifications, works of authorship, techniques,
documentation, models and systems, sales and pricing techniques, designs,
inventions, discoveries, products, improvements, modifications, methodology,
forecasts, processes, concepts, records, files, memoranda, reports, plans,
proposals, price lists, customer and merchant lists, customer and merchant
preferences, product development and project procedures. Confidential
Information does not include general skills, experience or information that is
generally available to the public, other than information which has become
generally available as a result of Executive's direct or indirect act or
omission.
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With
respect to Confidential Information of the Company and its customers and
merchants:
(A) Executive
has used, and will use, Confidential Information only in the performance of
Executive's duties for Employer. Executive has not used, and will not use,
Confidential Information at any time (during or after Executive's employment
with Employer) for Executive's personal benefit, for the benefit of any other
individual or entity, or in any manner adverse to the interests of the Company
and its customers and merchants;
(B) Executive
has not disclosed, and will not disclose, Confidential Information at any time
(during or after Executive employment with Employer) except to authorized
Employer personnel, unless Employer consents in advance in writing or unless the
Confidential Information indisputably becomes of public knowledge or enters the
public domain (other than through Executive's direct or indirect act or
omission);
(C) Executive
has safeguarded, and will safeguard, the Confidential Information by all
reasonable steps and has abided, and will abide, by all policies and procedures
of Employer in effect from time to time regarding storage, copying and handling
of documents; and
(D) Executive
will return all materials, substances, models, software, prototypes and the like
containing and/or relating to Confidential Information, together with all other
property of the Company (all of which shall remain the exclusive property of the
Company) and its customers and merchants, to Employer when Executive's
employment relationship with Employer terminates or otherwise on demand and, at
that time Executive will certify to Employer, in writing and under oath, that
Executive has complied with this Agreement. Executive shall not retain any
copies or reproductions of correspondence, memoranda, reports, notebooks,
drawings, photographs, databases, diskettes, or other documents or
electronically stored information of any kind relating in any way to the
business, potential business or affairs of the Company and its customers and
merchants.
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5.02 Assignment
of Developments. Executive has disclosed, and will disclose, promptly and fully
to Employer and to no one else: (A) all inventions, ideas, improvements,
discoveries, works, modifications, processes, software programs, works of
authorship, documentation, formulae, techniques, designs, methods, trade
secrets, technical specifications and technical data, know-how and show-how,
concepts, expressions or other developments whatsoever or any interest therein
(whether or not patentable or registrable under copyright, trademark or similar
statutes or subject to analogous protection) made, authored, devised, developed,
discovered, reduced to practice, conceived or otherwise obtained by Executive
("Developments"),
solely or jointly with others, during the course of Executive's employment with
Employer (whether prior to of after the Commencement Date) that (i) are related
to the business of the Company or any of the products or services being
researched, developed, distributed, manufactured or sold by the Company or which
may be used in relation therewith or (ii) result from tasks assigned to
Executive by the Company; (B) any Development which is related to the business
of the Company and in which Executive had an assignable interest at the time of
Executive's first employment by Employer; or (C) any Development made using the
time, materials or facilities of the Company, even if such Development does not
relate to the business of the Company. The determination as to whether a
Development is related to the business of the Company shall be made solely by an
authorized representative of Employer. Any Development relating to the business
of the Company and disclosed to the Company within one year following the
termination of Executive's employment with Employer shall be presumed to fall
within the provisions of this Section 5.02. The "business
of the Company" as used in this Section 5.02 includes the actual business
currently conducted by the Company, as well as any business in which the Company
proposes to engage at any time during the period of Executive's employment.
Executive agrees that all such Developments listed above and the benefits
thereof are and shall immediately become the sole and absolute property of
Employer from conception, as "works
made for hire" (as that term is used under the U.S. Copyright Act of
1976, as amended) or otherwise. Executive shall have no interest in any
Developments. To the extent that title to any Developments or any materials
comprising or including any Developments does not, by operation of law, vest in
Employer, Executive hereby irrevocably assigns to Employer all of Executive's
right, title and interest, including, without limitation, tangible and
intangible rights such as patent rights, trademarks and copyrights, that
Executive may have or may acquire in and to all such Developments, benefits
and/or rights resulting therefrom, and agrees promptly to execute any further
specific assignments related to such Developments, benefits and/or rights at the
request of Employer. Executive also hereby assigns to Employer, or waives if not
assignable, all of Executive's "moral
rights" in and to all such Developments, and agrees promptly to execute
any further specific assignments or waivers related to moral rights at the
request of Employer.
Executive agrees to assist Employer without charge for so long as Executive is
an employee of Employer and for as long thereafter as may be necessary (but at
Employer's expense including reasonable compensation to Executive if Executive
is no longer an employee of Employer): (1) to apply, obtain, register and renew
for, and vest in, Employer's benefit alone (unless Employer otherwise directs),
patents, trademarks, copyrights, mask works, and other protection for such
Developments in all countries, and (2) in any controversy or legal proceeding
relating to Developments. In the event that Employer is unable to secure
Executive's signature after reasonable effort in connection with any patent,
trademark, copyright, mask work or other similar protection relating to a
Development, Executive hereby irrevocably designates and appoints Employer and
its duly authorized officers and agents as Executive's agent and
attorney-in-fact, to act for and on Executive's behalf and stead to execute and
file any such application and to do all other lawfully permitted acts to further
the prosecution and issuance of patents, trademarks, copyrights, mask works or
other similar protection thereon with the same legal force and effect as if
executed by Executive.
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5.03 Obligations
to Other Persons. Executive is not a party to or otherwise bound by any
non-competition agreements, non-solicitation agreements or other restrictive
covenants with any previous employer or other individual or entity that would
prohibit, limit or conflict with the performance of Executive's duties to
Employer or any of its affiliates or subsidiaries. Executive shall not disclose
to Employer or any of its affiliates or subsidiaries or induce Employer or any
of its affiliates or subsidiaries to use any secret or confidential information
or material belonging to others, including, without limitation, Executive's
former employers, if any.
5.04 Covenant
Against Competition and Solicitation.
(A)
Executive acknowledges and understands that, in view of the position that
Executive holds as an executive-level employee of Employer, Executive's
relationship with Employer will afford Executive extensive access to
Confidential Information of the Company. Executive therefore agrees that during
the course of Executive's employment with Employer and for a period of eighteen
(18) months after termination of Executive's employment with Employer (for any
reason or no reason) (collectively, "Restricted
Period"), Executive shall not: (i) anywhere within the United States of
America or any other country in which the Company then conducts or proposes to
conduct business, either directly or indirectly, as an owner, stockholder,
member, partner, joint venturer, officer, director, consultant, independent
contractor, agent or employee, engage in any business or other commercial
activity which is engaged in or is seeking to engage in a "competitive
business." As used in this Agreement, the term "competitive
business" shall mean any individual or enterprise other than the Excluded
Businesses, engaged in or seeking to engage in (a) the business of providing
payment processing solutions to merchants, or (b) the development research,
production, marketing, distribution or sale of any product or service that is
directly competitive with, or that may be purchased in replacement of
substitution of, any product of service that is being produced, marketed,
distributed, sold, or actively developed by Employer or any of its affiliates or
subsidiaries. A product or service shall be deemed to be under "active
development" by Employer, its affiliates or subsidiaries as of a
particular date, if Employer or such affiliate or subsidiary has devoted
material resources to the development thereof and intends to produce, market,
distribute or sell such product or service within the following eighteen (18)
months.
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(B)
Executive further agrees that, during the Restricted Period, Executive shall
not, directly or indirectly, either on Executive's own behalf or on behalf of
any other individual or commercial enterprise: (i) contact, communicate, solicit
or transact any business with or assist any third party in contacting,
communicating, soliciting or transacting any business with (a) any of the
customers or merchants of the Company, (b) any prospective customers or
merchants of the Company being solicited at the time of Executive's termination,
or (c) any individual or entity who or which was within the most recent twelve
(12) month period a customer or merchant of Company, for the purpose of inducing
such customer or merchant or potential customer or merchant to be connected to
or benefit from any competitive business or to terminate its or their business
relationship with the Company; (ii) solicit, induce or assist any third party in
soliciting or inducing any individual or entity who or which is then (or was at
any time within the preceding 12 months) an employee, consultant, independent
contractor or agent of Company) to leave the employment of the Company or cease
performing services for the Company; (iii) hire or engage or assist any third
party in hiring or engaging, any individual or entity that is or was (at any
time within the preceding 12 months) an employee, consultant, independent
contractor or agent of the Company; or (iv) solicit, induce or assist any third
party in soliciting or inducing any other person or entity (including, without
limitation, any third-party service provider or distributor) to terminate its
relationship with the Company or otherwise interfere with such
relationship.
5.05 Non-Disparagement.
Executive will not at any time (during or after Executive employment with
Employer) disparage the reputation of Employer, its affiliates and their
respective customers and merchants and its or their respective officers,
directors, agents or employees.
5.06 Cooperation.
Executive agrees to cooperate both during and after Executive's employment with
Employer, at Employer's sole cost and expense, with the investigation by the
Company involving the Company or any employee or agent of the
Company.
5.07 Reasonable
Restrictions/Damages Inadequate Remedy. Executive acknowledges that the
restrictions contained in this Article V are reasonable and necessary to protect
the legitimate business interests of the Company and that any breach by
Executive of any provision contained in this Article V will result in immediate
irreparable injury to the Company for which a remedy at law would be inadequate.
Executive further acknowledges that the restrictions contained in this Article V
will not prevent Executive from earning a livelihood during the applicable
period of restriction. Accordingly, Executive acknowledges that, in the event of
a breach or threatened breach by Executive of any provisions of this Article V,
Employer and/or its affiliates and subsidiaries shall be entitled to temporary,
preliminary and permanent injunctive or other equitable relief (without being
obligated to post a bond or other collateral) and an equitable accounting of all
earnings, profits and other benefits arising, directly or indirectly, from such
violation, which rights shall be cumulative and in addition to (rather than
instead of) any other rights or remedies to which Employer, its affiliates
and/or its subsidiaries may be entitled at law or in equity. In addition (and
not instead of those rights), Executive further covenants that Executive shall
be responsible for payment of the fees and expenses of Employer's and its
affiliates' and subsidiaries' attorneys and experts, as well as their respective
court costs, pertaining to any suit, arbitration, mediation, action or other
proceeding (including the costs of any investigation related thereto) arising
directly or indirectly out of Executive's violation or threatened violation of
any of the provisions of this Article V. Further, in the event that a court of
competent jurisdiction determines that Executive has breached his obligations
set forth in this Article V in any material respect (other than through the
issuance of an injunction issued without a determination on the merits),
Employer, in addition to pursuing all available remedies under this Agreement,
at law or otherwise, and without limiting its right to pursue the same, shall be
entitled to cease all payments due the Executive under this Agreement as of the
date of such determination.
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5.08 Separate
Covenants. In the event that any court of competent jurisdiction shall determine
that any one or more of the provisions contained in this Article V shall be
unenforceable in any respect, then such provision shall be deemed limited and
restricted to the extent that the court shall deem the provision to be
enforceable. It is the intention of the parties to this Agreement that the
covenants and restrictions in this Article V be given the broadest
interpretation permitted by law. The invalidity or unenforceability of any
provision of this Article V shall not affect the validity or enforceability of
any other provision hereof. If, in any judicial or arbitration proceedings, a
court of competent jurisdiction or arbitration panel should refuse to enforce
all of the separate covenants and restrictions in this Article V, then such
unenforceable covenants and restrictions shall be eliminated from the provisions
of this Agreement for the purpose of such proceeding to the extent necessary to
permit the remaining separate covenants and restrictions to be enforced in such
proceeding.
ARTICLE
VI
MISCELLANEOUS
6.01 Benefit
of Agreement and Assignment.
(A)
This Agreement shall inure to the benefit of Employer, its affiliates and
subsidiaries and its and their respective successors and assigns (including,
without limitation, the purchaser of all or substantially all of any such
entity's assets) and shall be binding upon Employer and its successors and
assigns. This Agreement also shall inure to the benefit of and be binding upon
Executive and Executive's heirs, administrators, executors and assigns.
Executive may not assign or delegate Executive's duties under this Agreement,
without the prior written consent of Employer.
(B)
Employer will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of Employer to assume expressly in writing and agree to perform
this Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Employer"
shall mean the Employer as defined in the caption of this Agreement and any
successor to its business and/or assets that assumes and agrees to perform this
Agreement by operation of law or otherwise.
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6.02 Indemnification;
D&O Insurance. Employer shall indemnify Executive against all claims arising
out of Executive's actions or omissions occurring during Executive's employment
with Employer to the fullest extent provided (A) by Employer's Certificate of
Incorporation and/or Bylaws, (B) under Employer's Directors and Officers
Liability and general insurance policies, and (C) under the Nevada General
Corporation Law, as each may be amended from time to time. Employer agrees that
it will continue to maintain Directors and Officers Liability and general
insurance policies to fund the indemnity described above in the same amount and
to the same extent it maintains such coverage for the benefit of its other
officers and directors.
6.03 Notices.
Any notice required or permitted hereunder shall be in writing and shall be
sufficiently given if personally delivered or if sent by telecopier, overnight
delivery service or by registered or certified mail, postage prepaid, with
return receipt requested, addressed in the case of the Company to:
Acies
Corporation:
000 Xxxx
00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
and in
the case of Executive to:
Xxxx
Xxxxx
0000
Xxxxx Xxxx 000xx
Xxxxxx
Xxxxx
000
Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Any party
may notify the other party in writing of the change in address by giving notice
in the manner provided in this Section 6.03. Service of process in connection
with any suit, action or proceeding (whether arbitration or otherwise) may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement.
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6.04 Entire
Agreement. This Agreement contains the entire agreement of the parties hereto
with respect to the terms and conditions of Executive's employment during the
Term and activities following termination of this Agreement and supersedes any
and all prior agreements and understandings, whether written or oral, between
the parties with respect to the subject matter of this Agreement. This Agreement
may not be changed or modified except by an instrument in writing, signed by
both the Chairman of the Employer Board or the Chairman of the Compensation
Committee and Executive.
6.05 No
Attachment. Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect; provided, however, that nothing in this Section 6.04 shall
preclude the assumption of such rights by executors, administrators or other
legal representatives of Executive or his estate and their assigning any rights
hereunder to the person or persons entitled thereto.
6.06 Source
of Payment. All payments provided for under this Agreement shall be paid in cash
from the general funds of Employer. Employer shall not be required to establish
a special or separate fund or other segregation of assets to assure such
payments, and, if Employer shall make any investments to aid it in meeting its
obligations hereunder, Executive shall have no right, title or interest whatever
in or to any such investments except as may otherwise be expressly provided in a
separate written instrument relating to such investments. Nothing contained in
this Agreement, and no action taken pursuant to its provisions, shall create or
be construed to create a trust of any kind, or a fiduciary relationship, between
Employer and Executive or any other person. To the extent that any person
acquires a right to receive payments from Employer hereunder, such right,
without prejudice to rights which employees may have, shall be no greater than
the right of an unsecured creditor of Employer.
6.07 Limitation
as to Amounts Payable. In the event that any payment, coverage or benefit
provided under this Agreement would, in the opinion of counsel for Employer, not
be deemed to be deductible in whole or in part in the calculation of the Federal
income tax of Employer, or any other person making such payment or providing
such coverage or benefit, by reason of Section 280G of the Code, the aggregate
payments, coverages or benefits provided under this Agreement shall be reduced
to the "safe
harbor" level under Section 280G so that the entire amount which is paid
to Executive shall be deductible notwithstanding the provisions of Section 280G
of the Code.
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6.08 No
Waiver. The waiver by other party of a breach of any provision of this Agreement
shall not operate or be construed as a continuing waiver or as a consent to or
waiver of any subsequent breach hereof.
6.09 Headings.
The Article and Section headings in this Agreement are for the convenience of
reference only and do not constitute a part of this Agreement and shall not be
deemed to limit or affect any of the provisions hereof.
6.10 Governing
Law; Jurisdiction. Any and all actions or controversies arising out of this
Agreement or Executive's employment, including, without limitation, tort claims,
shall be construed and enforced in accordance with the internal laws of the
State of Florida, without regard to the choice of law principles thereof. Any
and all actions arising out of this Agreement or Executive's employment by
Employer or termination therefrom shall be brought and heard in the state and
federal courts of the State of Florida and the parties hereto hereby irrevocably
submit to the exclusive jurisdiction of any such courts. Employer and Executive
hereby agree to waive their respective rights to a trial by jury.
6.11 Validity.
The invalidity or enforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision
or provisions of this Agreement, which shall remain in full force and
effect.
6.12 Employee
Withholdings and Deductions. All payments to Executive hereunder shall be
subject to such withholding and other employee deductions as may be required by
law.
6.13 Counterparts.
This Agreement may be executed in one more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.
6.14 Agreement
to Take Actions. Each party to this Agreement shall execute and deliver such
documents, certificates, agreements and other instruments, and shall take all
other actions, as may be reasonably necessary or desirable in order to perform
his or its obligations under this Agreement.
6.15 Survival.
The provisions of Section 4.02, Article V and Article VI shall survive the
termination of this Agreement and Executive's employment by
Employer.
6.16 Legal
Counsel. Executive acknowledges and warrants that (A) he has been advised that
Executive's interests may be different from Employer's interests, (B) he has
been afforded a reasonable opportunity to review this Agreement, to understand
its terms and to discuss it with an attorney and/or financial advisor of his
choice and (C) he knowingly and voluntarily entered into this Agreement.
Employer and Executive shall each bear their own costs and expenses in
connection with the negotiation and execution of this
Agreement.
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IN WITNESS WHEREOF, Employer
and Executive have duly executed this Agreement as of the date first written
above.
EMPLOYER:
ACIES
CORPORATION
By: /s/ Xxxx
Xxxxx
Its:
Chief Executive
Officer
Printed
Name: Xxxx
Xxxxx
EXECUTIVE:
/s/ Xxxx
Xxxxx
Xxxx
Xxxxx, individually
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