Exhibit 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement"), effective as of April
17, 2000, Is executed as of the 25th day of August, 2000 by and between
GLOBALEURONET GROUP, INC., a Delaware corporation with its principal office at
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the
"Company"), and Xxx Xxxxxxxx (the "Executive") whose address is 0000 Xxxx
Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000.
RECITALS
A. Pursuant to an oral agreement with the Company, the Executive began
serving as Chief Executive Officer of the Company on April 4, 2000.
B. The oral agreement was subsequently modified and it was determined
that commencing on April 17, the Executive would serve as Co-Chief Executive
Officer of the Company.
C. The Company and the Executive desire to document their agreement and
desire that the Executive serve as Co-Chief Executive Officer, a Director and a
member of the Investment Committee of the Company.
D. The Executive possesses intimate knowledge of the business and affairs
of the Company.
E. The Board of Directors (the "Board") of the Company recognizes that the
Executive's contribution to the growth and success of the Company has been and
will be substantial and desires to assure the Company of the Executive's
continued employment in an executive capacity and to compensate him therefor.
F. The Board has determined that this Agreement will reinforce and
encourage the Executive's continued attention and dedication to the Company.
G. The Executive is willing to make his services available to the Company
on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE in consideration of the premises and of the mutual
covenants and agreement set forth herein, the parties hereby agree as follows:
1. Employment
1.1 Employment and Term. The Executive shall continue to serve the
Company, on the terms and conditions set forth herein, for the period (the
"Term") effective as of April 17, 2000 (the "Commencement Date") and expiring on
the one year anniversary of the completion of each six month period following
the Commencement Date, unless sooner terminated as hereinafter set forth,
provided, however, that the Term of this Agreement shall automatically be
extended under the same terms and conditions as set forth herein unless the
Company or the Executive gives written notice to the other ninety (90) days
prior to any anniversary of the Commencement Date of its or his intention to
terminate this Agreement.
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1.2 Duties of Executive. The Executive shall report to the Company's
Board of Directors. Executive shall devote substantially all his productive
time, ability, and attention to the Company's business during the term of this
Agreement. In his capacity as Co-Chief Executive Officer, Executive shall, in
conjunction with the Company's other Co-Chief Executive Officer, be primarily
responsible for the day-to-day supervision and control of the business and the
employees of the Company. Executive shall do and perform all services, acts, or
things necessary or advisable to discharge his duties under this Agreement, and
such other duties which may, from time to time, be prescribed by the Company
through its Board of Directors. In particular, Executive shall be a member of
the Company's Investment Committee, which shall be the mechanism for approving
the Company's investments. Furthermore, Executive agrees to cooperate with and
work to the best of his ability with Company's management team, which includes
the Board of Directors and the officers and other employees, to continually
improve the Company's reputation in its industry for performance. During his
employment the Executive will not engage in any other business activities,
regardless of whether such activity is pursued for profits, gains, or other
pecuniary advantage. However, nothing in this Agreement shall prevent the
Executive from passively investing in business activities so long as such
investments require no active participation by the Executive, or serving on
Boards of Directors so long as such service is disclosed to and approved by the
Chairman of the Company's Board.
1.3 D & 0 Insurance. The Company will use its best efforts to obtain
Directors and Officers insurance at the earliest practicable opportunity.
2. CompensatIon.
2.1 Base Salary. During the Term and any extension of the Term
pursuant to paragraph 1.1, the Executive shall receive a base salary at the
annual rate of $250,000 (the "Base Salary"). The Base Salary shall be payable in
substantially equal installments consistent with the Company's normal payroll
schedule, subject to applicable withholding and other taxes. Notwithstanding the
above, at the discretion of the Board of Directors of the Company, the Base
Salary may be increased, but shall not be decreased, on each anniversary of the
Commencement Date during the Term and any extension of the Term.
2.2 Bonus. The Executive shall be entitled to receive annual bonuses
as shall be determined in the sole and absolute discretion of the Board or its
Compensation Committee.
2.3 Employee Benefit Plans. Executive shall be entitled, during the
specified period of this Agreement, in addition to those benefits specially
addressed below, to participate equally with other employees of a similar rank
in any retirement, pension, profit-sharing insurance, or other plans which may
now be in effect or which may be adopted by Company. The benefit plans shall be
with such underwriters and shall contain such provisions as Company, in its sole
discretion, may determine from time to time. Company may delete coverages and
otherwise amend and change the type and quantity of benefit plans it provides in
its sole discretion.
2.4 Stock Options, Stock Grants, SARs, Pension, 401-K and Other
Similar Programs. The Executive will participate in all non-cash compensation
arrangements established or to be established by the Company. Executive's level
of participation will be no less than that level of participation granted or
allowed to the other Co-Chief Executive Officer of the Company.
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Specifically with respect to the Stock Option Plan ("the Plan") discussed
in the Company's Offering Memorandum dated February 25, 2000. the Executive will
be granted options for 250,000 shares to be granted under the Plan. The exercise
price will be Five Dollars ($5.00) per share and the granted options will be
exercisable for five (5) years from the date of the grant. The date of grant
will be the Executive's first day of employment with the Company and the options
will vest 50% on the date of grant and 50% on the first anniversary of the
Commencement Date.
2.5 Participation in Carried Interest. Executive's participation in
the percentage of profits in investments made that is to be allocated to Company
employees (the "Carried Interest") will be no less than the greater of 22.222%
of such Carried Interest (i.e. - 5% of the investment profits) or that amount
allowed to the other Co-Chief Executive of the Company, and greater that that
allowed to any other employee of the Company except the Chairman.
3. Expense Reimbursement and Other Benefits.
3.1 Expense Reimbursement. During the Term, the Company, upon the
submission of supporting documentation by the Executive. and in accordance with
Company policies for its executives, shall reimburse the Executive for all
expenses actually paid or incurred by the Executive in the course of and
pursuant to the business of the Company, including expenses for travel,
entertainment, computer allowance, and such other expenses as approved by the
Company.
3.2 Other Benefits. The Company shall obtain or shall continue in
force comprehensive major medical and hospitalization insurance coverage, either
group or individual, for the Executive and his dependents which insurance the
Company shall keep in effect at its sole expense throughout the Term. The
insurance to be provided by the Company shall be on terms as determined by the
Board.
3.3 WorkIng Facilities. The Company shall furnish the Executive with
an office, an executive assistant and such other facilities and services
suitable to his position and adequate for the performance of his duties
hereunder.
4. TermInatIon.
4.1 TermInation for Cause. Notwithstanding anything contained in
this Agreement to the contrary, this Agreement may be terminated by the Company
for Cause. As used in this Agreement "Cause" shall only mean (i) subject to the
following sentences, any action or omission of the Executive which constitutes a
willful and material breach of this Agreement which is not cured or as to which
diligent attempts to cure have not commenced within 20 business days after
receipt by Executive of notice of same, (ii) fraud, embezzlement or
misappropriation as against the Company, or (iii) the conviction (from which no
appeal can be taken) of Executive for any criminal act which is a felony. Upon
any determination by the Board that Cause exists under clause (i) of the
preceding sentence, the Company shall cause a special meeting of The Board to be
called and held at a time mutually convenient to the Board and Executive, but in
no event later than 10 business days after Executive's receipt of the notice
contemplated by clause (i). Executive shall have the right to appear before such
special meeting of the Board with legal counsel of his choosing to refute any
determination of Cause specified in such notice, and any termination of
Executive's employment by reason of such Cause determination shall not be
effective until Executive is afforded such opportunity to appear, any
termination for Cause pursuant to this Paragraph 4.1 shall be made in writing to
Executive,
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which notice shall set forth in detail all acts or omissions upon which the
Company is relying for such termination. The Company shall have no further
liability hereunder (other than for reimbursement for reasonable business
expenses incurred prior to the date of termination, subject, however to the
provisions of Paragraph 3.1 hereof). In addition, upon any termination pursuant
to this paragraph 4.1. the Executive hereby agrees to resign his position as a
member of the Boards of Directors of the Company and any Subsidiary.
4.2 DIsability. Notwithstanding anything to the contrary contained
in this Agreement if, during the term hereof the Executive suffers a disability
(as defined below) the Company shall, subject to the provisions of Paragraph 4.3
hereof continue to pay Executive the compensation provided in Paragraphs 2.1 and
3.2 hereof during the period of his disability, provided, however, that, in the
event Executive is disabled for a period of more than 180 days in any 12 month
period (the "Disability Period"), the Company may, at its election, within 90
days from the end of the Disability Period, terminate this Agreement. In the
event of such termination, (a) payment of the Executive's Base Salary at the
rate prevailing on the date of termination of the Executive and fringe benefits
(to the extent permissible by applicable law) shall be continued for a period of
12 months after such termination. As used in this Agreement the term
"disability" shall mean the complete inability of Executive to perform his
duties under this Agreement as determined by an independent physician selected
with the approval of the Company and the Executive except as provided above, the
Company shall have no further liability hereunder (other than for reimbursement
for reasonable business expenses incurred prior to the date of termination
subject, however, to the provisions of Paragraph 3.1 hereof).
4.3 Death. In the event of the death of Executive during the Term of
this Agreement the Company shall pay to Executive's legal representative any
unpaid Base Salary accrued through the date of his death.
4.4 TermInation WIthout Cause. The Company may terminate this
Agreement without Cause, at any time. Termination of this Agreement shall become
effective 90 days after delivery of written notice to Executive (the
"Termination Date), provided the Company shall pay Executive his Base Salary as
then in effect in substantially equal installments consistent with the Company's
normal payroll schedule, subject to applicable withholding and other taxes, for
a period of one year from the Termination Date.
5. Full Settlement. The Company's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the company may have against the Executive or
others. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement.
6. Restrictive Covenants.
6.1 Agreement Not to Use or Disclose, Confidential/Proprietary
Information. During the Term and thereafter, the Executive, promises and agrees
that he will not disclose or utilize any confidential or proprietary information
acquired during the course of service with the Company and/or its related
business entities. The Executive shall not divulge, communicate, use to the
detriment of the Company or for the benefit of any other person or persons, or
misuse in any way, any confidential or proprietary information pertaining to the
business of the Company. Any confidential or proprietary information or data now
or hereafter acquired by the Executive with respect to the business of the
Company (which shall include, but not be limited
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to, information concerning the Company's financial condition, prospects,
technology, customers, suppliers, methods of doing business and promotion of the
Company's products and services) shall be deemed a valuable, special and unique
asset of the Company that is received by the Executive in confidence and as a
fiduciary. For purposes of this Agreement "Confidential and Proprietary
Information" means information disclosed to the Executive as a consequence of or
through his employment by the Company (including information conceived,
originated, discovered or developed by the Executive) prior to or after the date
hereof and not generally known or in the public domain, about the Company or its
business, This paragraph 6.1 is effective, regardless of the reason for the
termination of the Agreement and regardless of whether the Agreement is
terminated by the Executive, the Company or by its own terms. This restrictive
covenant may be assigned to and enforced by any of the Company's assignees or
successors.
6.2 Competition. During the Term and for a period of one year
thereafter, Executive shall not, directly or indirectly, engage in or have any
interest in, directly or indirectly, by sole proprietorship, partnership,
corporation, business or any other person or entity (whether as an employee,
officer, director, partner, agent, security holder, creditor, consultant or
otherwise) that, directly or indirectly, engages primarily in the development,
marketing, distribution, underwriting or sale of products and services
competitive with the Company's and/or any subsidiary's products and services in
any and all States in which the Company and/or any subsidiary conducts its
business during the Term or at the time Executive's employment with the Company
is terminated (the "Territory") provided, however, that Executive may hold
Company securities and/or acquire, solely as an investment, shares of capital
stock or other equity securities of any publicly held corporation, so long as
Executive does not control, acquire a controlling interest in, or become, a
member of a group which exercises direct or indirect control of, more than five
percent of any class of capital stock of such publicly traded corporation, and
provided further that the Company pays the Executive's Base Salary as then in
effect for this one year period in substantially equal installments consistent
with the Company's normal payroll schedule, subject to applicable withholding
and other taxes.
6.3 Nonsolicitation of Employees. During the Term and for a period
of one year thereafter, Executive shall not directly or indirectly, for himself
or for any other person, firm, corporation, partnership, association or other
entity, attempt to employ or enter into any contractual arrangement with any
employee or former employee of the Company, provided the Company satisfies its
obligations under paragraph 6.2 herein.
6.4 Books and Records. All books, records, accounts and similar
repositories of Confidential and Proprietary Information of the Company, whether
prepared by the Executive or otherwise coming into the Executive's possession,
shall be the exclusive property of the Company and shall be returned immediately
to the, Company on termination of this Agreement or on the Board's request at
any time.
7. Injunction. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Executive of any of the covenants contained in
Paragraph 6 of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Executive recognizes and hereby acknowledges that the Company
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in Paragraph 6 of this Agreement by the Executive or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.
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8. Consolidation, Merger or Sale of Assets. Nothing in this Agreement
shall preclude the Company from consolidating or merging into or with, or
transferring all or substantially all of its assets to, another corporation that
assumes this Agreement and all obligations of the Company hereunder, in writing.
Upon such consolidation, merger, or transfer of assets and assumption, the term
"the Company" as used herein shall mean such other corporation and this
Agreement shall continue in full force and effect.
9. Binding Effect. Except as herein otherwise provided, this Agreement
shall inure to the benefit of and shall be binding upon the parties, hereto,
their personal representatives, successors, heirs and assigns.
10. Terminology. All personal pronouns used in this Agreement, whether
used in the masculine, feminine or neuter gender, shall include all other
genders; the singular shall include the plural and vice versa. Titles of
paragraphs are for convenience only, and neither limit nor amplify the
provisions of the Agreement itself.
11. Further Assurances. At any time, and from time to time, each party
will take such action as may be reasonably requested by the other party to carry
out the intent and purposes of this Agreement.
12. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. It
supersedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
13. Amendment. This Agreement may not be amended, supplemented or modified
in whole or in part except by an instrument in writing signed by the party or
parties against whom enforcement of any such amendment, supplement or
modification is sought.
14. Assignment. This Agreement may not be assigned by any party hereto
without the prior written consent of the other party and except as provided in
Paragraph 8 hereof.
15. Choice of Law. This Agreement will be interpreted, construed and
enforced in accordance with the laws of the State of California, without giving
effect to the application of the principles pertaining to conflicts of laws.
16. Effect of Waiver. The failure of any party at any time or times to
require performance of any provision of this Agreement will in no manner affect
the right to enforce the same. The waiver by any party of any breach of any
provision of this Agreement will not be construed to be a waiver by any such
party of any succeeding breach of that provision or a waiver by such party of
any breach of any other provision.
17. Construction. The parties hereto and their respective legal counsel
participated in the preparation of this Agreement, therefore, this Agreement
shall be, construed neither against nor in favor of any of the parties hereto,
but rather in accordance with the fair meaning, thereof.
18. Severability. The invalidity, illegality or unenforceability of any
provision or provisions of this Agreement will not affect any other provision of
this Agreement, which will remain in full force and effect, nor will the
invalidity, illegality or unenforceability of a portion of any provision of this
Agreement affect the balance of such provision. In the event that any one or
more of the provisions contained in this Agreement or any portion thereof shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be reformed,
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construed and enforced as if such invalid, illegal or unenforceable provision
had never been contained herein.
19. Enforcement. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. Any suit, action or proceeding with
respect to this Agreement shall be brought in the state courts of California,
located within the County of Los Angeles. The parties hereto hereby accept the
exclusive jurisdiction of those courts for the purpose of any such suit, action
or proceeding.
20. Survival. All covenants, agreement, representations and warranties
made herein or otherwise made in writing by any party pursuant hereto, shall
survive the execution and delivery of this Agreement and the termination of the
employment of the Executive.
21. No Third-Party Beneficiaries. No person shall be deemed to possess any
third-party beneficiary right pursuant to this Agreement. It is the intent of
the parties hereto that no direct benefit to any third party is intended or
implied by the execution of this agreement.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original.
23. Notice. Any notice required or permitted to be delivered hereunder
shall be deemed to be delivered when sent by facsimile with receipt confirmed or
when deposited in the United States mail, postage prepaid, registered or
certified mail, return receipt requested, or by overnight courier, addressed to
the parties at the address first stated herein, or to such other address as
either party hereto shall from time to time designate to the other party by
notice in writing as provided herein.
IN WITNESS WHEREOF, this Agreement has been duly signed by the parties
hereto on the day and year first above written.
GLOBALEURONET GROUP, INC.
By /s/ Xxxxxxxxxxx Xxxxxxxx
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Xxxxxxxxxxx Xxxxxxxx
/s/ Xxx Xxxxxxxx
--------------------------------------
Xxx Xxxxxxxx
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AMENDMENT TO EXECUTIVE AGREEMENT
This AMENDMENT TO EXECUTIVE AGREEMENT (the "Amendment") dated as of
December 15, 2000 (the "Amendment Date"), is entered into by and between
GlobalEuronet Group, a Delaware corporation (the "Company"), and Xxx Xxxxxxxx,
an individual (the "Executive" and the Company each a "Party" and collectively,
the "Parties").
W I T N E S S E T H:
WHEREAS, the Parties hereto are parties to that certain Executive
Agreement between the Company and the Executive dated as of August 25, 2000 (the
"Agreement"); and
WHEREAS, Paragraph 13 of the Agreement provides that the Agreement may be
amended by an instrument duly executed by the Parties;
WHEREAS, the Parties intend to continue and strengthen the Executive's
employment status with the Company; and
WHEREAS, the Parties hereto desire to amend the Agreement to add such
terms and conditions as set forth below.
NOW, THEREFORE, the Parties hereby agree as follows:
Section 1. Definitions. Capitalized terms used and not otherwise defined
in this Amendment shall have the meanings as described thereto in the Agreement.
Section 2. Amendment to Section 1. Paragraph 1.1 of the Agreement is
hereby deleted and replaced in its entirety with the following:
"Employment and Term. The Executive shall continue to serve the Company,
on terms and conditions set forth herein, for the period of two (2) years (the
'Term') effective as of April 17, 2000 (the 'Commencement Date'), unless sooner
terminated as hereinafter set forth; provided, however, that the Term shall
automatically be renewed and extended under the same terms and conditions on
each anniversary of the Commencement Date unless the Company or the Executive
gives written notice to the other of its or his intention to terminate this
Agreement ninety (90) days prior to the expiration of the Term as set forth
above."
Section 3. Amendment to Section 3. Section 3 of the Agreement entitled
"Expense Reimbursement and Other Benefits" is hereby amended to add Paragraph
3.4 as follows:
"Indemnification. Executive shall, in addition to any other legal or
contractual rights to indemnification provided by the Company, be provided
coverage under all indemnification policies and director and officer liability
policies maintained by the Company for its senior executives."
Section 4. Amendment to Section 4. Paragraph 4.4 of the Agreement is
hereby deleted and replaced in its entirety with the following:
"Termination Without Cause. The Company can terminate this Agreement
without cause at any time upon 90-day's written notice to Executive, provided
that the Company shall pay to Executive or his representatives:
(i) all Base Salary compensation as is due pursuant to Section 2.1 herein,
prorated through the date of termination of employment (the 'Termination Date');
(ii) a lump sum payment of an amount equal to two (2) years of Executive's
then-current Base Salary;
(iii) payment of COBRA medical insurance coverage for Executive and his
immediate family for eighteen (18) months following the Termination Date;
(iv) immediate vesting of all of Executive's stock options to purchase
equity interests in the Company;
(v) immediate vesting of all pension benefits;
(vi) all expense reimbursements due and owing Executive through the
Termination date under Paragraph 3.1 herein, including reimbursements for
reasonable and necessary business expenses incurred prior to the Termination
Date, as long as Executive submits a written accounting of such expenses in
accordance with Section 3.1 herein within forty-five (45) days of the
Termination Date.
(vii) Executive shall maintain his then-existing percentage interest in
the Company's Equity Incentive Compensation Plan."
Section 5. Amendment to Section 4. Section 4 of the Agreement entitled
"Termination" is hereby amended to add Paragraph 4.5 as follows:
"Termination By Executive For Good Reason. Executive may terminate
employment for 'good reason' at any time upon written notice to the Company if
the Company takes any of the following actions without the express written
consent of Executive: (i) a reduction in the Executive's Base Salary or the
benefits set forth above, and the reduction is not part of a general reduction
in executives' compensation; (ii) the relocation of the Company's headquarters
to a location more than twenty five (25) miles from the Company's current
headquarters at 00000 Xxxxxxxx Xxxx., Xxx Xxxxxxx, Xxxxxxxxxx; (iii) the
assignment of Executive to a lower position in the organization in terms of his
title, responsibility, authority or status unless agreed to in writing by
Executive; or (iv) a Change of Control of the Company, as defined in Exhibit A
attached hereto.
"In the event of termination pursuant to this Paragraph 4.5, the Company
shall pay to Executive or his representatives:
(a) all Base Salary compensation as is due pursuant to Section 2.1 herein,
prorated through the Termination Date;
(b) a lump sum payment of an amount equal to two (2) years of Executive's
then-current Base Salary;
(c) payment of COBRA medical insurance coverage for Executive and his
immediate family for eighteen (18) months following the Termination Date;
(d) immediate vesting of all of Executive's stock options to purchase
equity interests in the Company;
(e) immediate vesting of all pension benefits
(f) all expense reimbursements due and owing Executive through the
Termination date under Paragraph 3.1 herein, including reimbursements for
reasonable and necessary business expenses incurred prior to the Termination
Date, as long as Executive submits a written accounting of such expenses in
accordance with Section 3.1 herein within forty-five (45) days of the
Termination Date.
(g) Executive shall maintain his then-existing percentage interest in the
Company's Equity Incentive Compensation Plan."
Section 6. Amendment to Section 4. Section 4 of the Agreement entitled
"Termination" is hereby amended to add Paragraph 4.6 as follows:
"Excise Tax Gross-Up. In the event any of the payments hereunder shall
become subject to the excise tax imposed under Section 4999 of the Internal
Revenue Code of 1986, as amended (the 'Code'), or any similar or successor
provision of federal, state, or local law, the Company shall pay to Executive
such additional amounts as may be necessary to fully offset the tax effects of
such excise tax or taxes, in accordance with procedures as may be mutually
agreed upon by the parties. In addition, the Company shall be responsible for
any and all fees and expenses incurred by Executive in connection with any audit
by the Internal Revenue Service claiming additional tax pursuant to Section 4999
of the Code."
Section 7. Amendment to Section 4. Section 4 of the Agreement entitled
"Termination" is hereby amended to add Paragraph 4.7 as follows:
"No Mitigation; No Offset. The parties hereto agree that Executive shall
not be required to mitigate damages in respect of any termination benefit or
payment due under this Agreement or in respect of any damage award as a result
of the Company's breach of this Agreement, nor shall any such benefit or award
be offset by any future compensation or income received by Executive from any
other source. The Company shall not have the right to offset against its
obligations hereunder or against any such damage award any amounts payable by
Executive to Company for any reason."
Section 8. Amendment to Exhibits. The Agreement is hereby amended to add
Exhibit A [as follows / attached hereto]:
"CHANGE OF CONTROL
"A 'Change of Control' as used in the Executive Agreement of which this
Exhibit is a part shall mean any of the following:
(1) any 'person,' as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than the
Company or its Affiliate), is or becomes the "beneficial owner" (as defined in
Rule 1 3d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing fifty percent (50%) or more of the combined voting
power of the Company's then outstanding securities; or
(2) in the event that the individuals who on the Amendment Date constitute
the Board of Directors, and any new director whose election by the Board or
nomination for election by the Company's stockholders was approved by a vote of
at least a majority of the Board then still in office who either were members of
the Board on the Amendment Date or whose election or nomination for election was
previously so approved, cease for any reason to constitute at least a majority
thereof; or
(3) the stockholders of the Company approve a merger or consolidation of
the Company with or the sale of the Company to any other entity and, in
connection with such merger, consolidation or sale; individuals who constitute
the Board immediately prior to the time any agreement to effect such merger or
consolidation is entered into fail for any reason to constitute at least a
majority of the board of directors of the surviving corporation following the
consummation of such merger or consolidation; or
(4) the stockholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets to an entity not controlled by the
Company."
Section 9. Continuing Agreement. Except as specifically amended hereby,
all of the terms of the Agreement shall remain and continue in full force and
effect and are hereby confirmed in all respects.
Section 10. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 11. Miscellaneous. Each section of the Agreement from and
including Section 8 through Section 23 including, but not limited to, Section 9
("Binding Effect"), Section 15 ("Choice of Law"), Section 18 ("Severability")
and Section 19 ("Enforcement"), is herein incorporated by this reference.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
GlobalEuronet Group, Inc.
By: __________________________________
Name: ________________________________
Title: _______________________________
By: __________________________________
Name: Xxx Xxxxxxxx
