EMPLOYMENT AGREEMENT
BY AND BETWEEN
PROCESSING SOURCE INTERNATIONAL, INC.
AND
XXXXXX XXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, effective as of the 1st day of August, 2000,
("Agreement"), is entered into by and between Processing Source International,
Inc., a California Corporation ("Company"), and Xxxxxx Xxxxxx, an Individual
("Executive").
R E C I T A L S
WHEREAS, the Company desires to employ and obtain the services of
Executive and Executive desires to assume employment with the Company;
WHEREAS, the undersigned parties desire to formalize such employment
relationship; and,
WHEREAS, the undersigned parties agree and intend that the execution of
this Agreement effectively terminates and cancels the Employment Agreement
executed by and between the Executive and the Company on July 31, 1999.
NOW, THEREFORE, in consideration of the promises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement agree as follows:
1. TERM. The Company agrees to employ Executive and Executive agrees to
serve the Company as provided in this Agreement. Executive's employment pursuant
to this Agreement shall be for a period of six (6) year(s) and shall commence
upon the date of execution hereof (the "Commencement Date") and shall continue
to and including July 30, 2005 (the "Termination Date") unless earlier
terminated in accordance with the provisions of Paragraphs 8 or 9 of this
Agreement; provided further that the term of this Agreement may be extended by
the mutual agreement of the parties hereto.
2. DUTIES OF EXECUTIVE. The duties of Executive shall be as follows:
2.1. Executive shall assume the duties of the Chief Executive
Officer and shall perform such duties incident thereto as may be assigned to
Executive from time to time which duties shall include, without limitation,
responsibility for daily operations, purchasing, inventory, personnel and
accounting for all locations, and such customary executive, managerial, planning
and implementation duties of any such position as these duties shall be defined
by Company from time to time. Executive shall perform and hold such other
positions and duties as may be assigned to Executive by the Company and as are
not inconsistent with the provisions of this Agreement. Executive agrees to
devote Executive's best efforts and skills to the business interests of the
Company, to do Executive's utmost to further enhance and develop the interests
and welfare of the
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Company, and to devote all of Executive's working time and attention to the
business of the Company.
2.2. Executive shall truthfully and accurately make, maintain
and preserve all records and reports that the Company may, from time to time,
request or require, and shall fully account for all money, records, equipment,
materials or other property belonging to the Company of which Executive may have
custody and shall pay over and deliver same promptly whenever and however
Executive may be directed to do so.
2.3. Executive shall obey all lawful rules, regulations,
special instructions, and directives as directed by the Company applicable to
Executive and shall endeavor to improve Executive's ability and knowledge of the
business in an effort to increase the value of Executive's services for the
mutual benefit of the parties to this Agreement.
2.4. Executive shall make available to the Company any and all
information of which Executive has knowledge that is relevant to the Company's
business, and make all suggestions and recommendation which Executive believes
will be of benefit to the Company.
3. COMPENSATION. For and in consideration of the performance by
Executive of the services, terms, conditions, covenants and promises herein
recited, the Company agrees and promises to pay to Executive at the times and in
the manner herein stated, to be reviewed and possibly adjusted annually (but,
with regard to annual compensation, never below the Base Pay, as set forth
below), the following:
3.1. As the principal consideration of the services to be
performed by Executive hereunder during the term of this Agreement, Executive
shall receive the sum of Two Hundred Thousand Dollars ($200,000.00) per year,
payable monthly, semimonthly, or in the manner and on the timetable in which the
Company's payroll customarily is handled. This annual compensation may sometimes
be herein referred to as Executive's "Base Pay". The Executive's Base Pay shall
be increased to Four Hundred Thousand Dollars ($400,000.00) per year on the
first day of the first month immediately following the Company's generation of
One Million Dollars ($1,000,000.00) per month gross revenue. The Executive's
Base Pay shall be increased to Six Hundred Thousand Dollars ($600,000.00) per
year on the first day of the fist month immediately following the Company's
generation of Two Million Five Hundred Thousand Dollars ($2,500,000.00) per
month gross revenue.
(a) When necessitated by the Company's adverse financial condition, the
Company may defer a portion of Executive's Base Pay in exchange for a note
payable equal to the amount of compensation deferred. The Employee authorizes
the Company to defer twenty five (25%) percent of Executive's Base Pay annually
for the first two (2) years. Such deferred compensation shall be exchanged for a
note payable at the rate of eight (8%) percent interest per annum. A note shall
be executed at the end of each twelve month period from the date of execution of
this Agreement and shall become payable at the end of twelve months from the
execution of each note. At the end of two years from commencement of this
Agreement, the Company may defer, and Executive is in concurrence, up to twenty
five (25%) percent of Executive's Base Pay. Furthermore, at any time during the
term of this Agreement, the Company may defer up to an additional $1,500.00
monthly of Executive's Base Pay without the Executive's consent. Any
compensation deferred shall be
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exchanged for a promissory note, in form and content acceptable to Executive, at
the end of each twelve month period, which said promissory note will accrue
interest at the rate of eight (8%) percent per annum, from the date of each
compensation deferral, and shall be due and payable at the end of twelve months
from execution thereof. The Company and Executive may negotiate and mutually
agree to repay any outstanding note payable in shares or options for shares of
Common Stock in lieu of cash.
3.2. The Company may pay Executive compensation in addition to
Executive's Base Pay upon Company's attainment of revenue levels in the form of
a bonus as outlined below, and, as may be determined in the sole discretion of
the board of directors of the Company from time to time.
3.2(a) Additional Compensation. This additional compensation
shall be computed on an annual basis at the close of the Company's fiscal year
and paid to Executive within ten days of completion of the annual audit.
Notwithstanding the foregoing, the Company reserves the right to change, repeal,
modify or amend any such bonus compensation plan at any time. Upon the
occurrence of any such change, repeal, modification or amendment, the Executive
shall have the absolute discretion and right, for a period of thirty (30) days
thereafter to terminate this Agreement and to declare all restrictive covenants,
if any, null and void. The Company shall provide Executive with an employment
review within thirty (30) days of each anniversary date of Executive's
commencement of employment hereunder.
(i) Revenue Attainment. Company may pay Executive a cash bonus if
Employer realizes certain gross revenue attainment during the term of each full
fiscal year. The cash bonus may be based upon the following schedule:
CUMULATIVE
REVENUE ATTAINMENT CASH BONUS
------------------ ----------
$ 4,500,000 $ 15,000
$ 9,000,000 $ 25,000
$ 18,000,000 $ 40,000
$ 36,000,000 $ 60,000
The foregoing schedule shall apply in respect of the fiscal year ending July 31,
2001 for the preceding twelve (12) month period. The revenue attainment levels
set forth in the schedule shall be increased annually by thirty five (35%)
percent per annum for each subsequent 12 month period during the term of this
Agreement.
4. SPECIAL COMPENSATION BENEFITS. Executive shall be provided with
the following benefits within sixty (60) days of the consummation of the sale of
substantially all of the assets of the Company:
4.1 Payment in an amount equal to six (6) months salary
at the rate of salary then paid to Executive;
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4.2 Payment for all accrued but unused vacation time as
may be required by law; and,
4.3 Vesting of all offered but unvested stock options
pursuant to this Agreement, subject to exercise and other applicable terms,
conditions and restrictions as set forth herein and in any applicable Plan or
Option Agreement.
5. STOCK INCENTIVES. The Company may (but shall be not be obligated to)
issue you certain stock bonuses, stock options, stock appreciation rights, stock
awards, phantom stock awards, or performance awards ("Awards") in conjunction
herewith or otherwise from time to time. Based upon the performance review
described in Section 3.2(a) herein, the Company will issue Executive stock
options, the value of which, on an annual basis, shall be in an amount up to,
but shall not exceed, One hundred thousand dollars ($100,000.00) of the then
current closing price of the Company's common stock on the date of the stock
option issue. This stock option grant is intended to qualify as an incentive
stock option within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended. Any Awards shall be issued, and, to the extent applicable,
vest and be exercised, pursuant to the terms and conditions of a separate
agreement ("Grant Agreement") and in accordance with the provisions of any
incentive plan adopted by the Company or, at the discretion of the Company, the
Accesspoint Corporation 1999 Stock Incentive Plan ("Plan"). You hereby agree to
execute and deliver any such reasonable Grant Agreement. The terms "Award" and
"Grant Agreement" shall be used herein as defined and used in the Plan.
6. BENEFITS. In addition to the above compensation, the Company shall
provide Executive with the following:
6.1. Participation in Company health plan including coverage
for major medical, dental and vision insurance. The Company shall sponsor up to
the first $500.00 of such medical benefit plan which may provide for coverage of
the Executives direct family members;
6.2. Participation in any Executive profit sharing plan, if
eligible;
6.3. Reimbursement, from time to time, upon Executive's
submission of expense account and supporting documents as required by the
Internal Revenue Service, for all reasonable out of town travel, entertainment,
and other ordinary, reasonable and necessary business expenses incurred by
Executive as part of and in connection with the direct performance of duties
specified herein;
6.4. Company credit cards as may be determined by the
Board of Directors of the Company from time to time (which may include, but not
be limited to, a major credit card and oil company gasoline credit card);
6.5. As benefit consideration for the Company's use of
Executives automobile, by Executive, for all reasonable travel, entertainment,
and other ordinary, reasonable and necessary automobile business use expenses
incurred by Executive as part of and in connection with the direct performance
of duties specified herein, Executive shall receive, the sum of Fourteen
Thousand Four Hundred Dollars ($14,400.00) per year, payable monthly,
semimonthly, or in the manner and on the
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timetable in which the Company's payroll customarily is handled, provided that
Executive shall be responsible for all maintenance and insurance associated with
any such automobile;
6.6. Fuel reimbursement in an amount sufficient to compensate
Executive for gasoline costs incurred during business uses of Executive's
automobile;
6.7 Key Man Life Insurance. At the request of Company,
Executive shall cooperate with Employer to secure, for Company, a key man life
insurance policy on the life of Executive in the amount of $500,000 to be
divided in half and paid in equal sums to Company and Executives elected
benefactors upon Executive's death; and,
6.8 Other Benefits. The Company may in its sole discretion
(but shall not be obligated to) provide these and other and further benefits.
Notwithstanding the foregoing, the Company may change, suspend or discontinue
any such benefits at any time without notice to Executive due only to adverse
financial condition of the Company.
7. VACATIONS AND HOLIDAYS. Company shall:
7.1. Permit Executive three (3) weeks of vacation per year.
Such amount may be increased in the sole discretion of the board of directors of
the Company from time to time. Vacation may be taken in Executive's discretion,
so long as it is not inconsistent with the reasonable business needs of the
Company.
7.2. Permit Executive to take those holidays and other days
that the other Executives of the Company are entitled to take.
8. TERMINATION. This Agreement may be terminated as follows:
8.1. In accordance with the provisions of Section 9 hereof.
8.2. Notwithstanding the foregoing, the Company may, at its
option, terminate the employment of Executive at any time during the term of
this Agreement without notice, only for good cause. Dismissal for good cause
shall include, but not be limited to, any of the following:
8.2.1. The conviction of Executive by a court of
competent jurisdiction (and to which no further appeal can be taken) of a felony
or any other crime involving moral turpitude;
8.2.2. The commission by Executive of an act of
fraud or other act materially evidencing bad faith or dishonesty, as determined
by the final non-appealable judgment of a court of competent jurisdiction;
8.2.3. The misappropriation by Executive of any
material assets of the Company, as determined by the Board of Directors of the
Company;
8.2.4. The suspension or removal or termination of
Executive by or as a requirement of any governmental authority having
jurisdiction over the Company;
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8.2.5. The willful refusal to follow any lawful,
reasonable, and material directive of the Board of Directors of Company;
8.2.6. The breach by Executive of any material terms
of this Agreement or any other agreement between Executive on the one hand and
the Company or its parent corporation, or any affiliate of the Company or its
parent corporation, on the other hand; and
8.2.7 Upon the death of the Executive.
Upon termination for good cause, Executive shall be paid, as full
and final severance compensation, Executive's unpaid Base Pay accrued through
the date of termination, any unpaid but accrued benefits, and any unpaid but
accrued vacation time.
9. PERMANENT DISABILITY OF EXECUTIVE. In the event Executive becomes
mentally or physically disabled to such an extent that Executive is unable to
substantially perform Executive's normal duties on behalf of the Company as
described in this Agreement for a period of thirty (30) days or more, the
Company, at any time thereafter, shall have the right, at its sole option, to
declare Executive permanently disabled and thereupon terminate employment
hereunder. In such event, Executive, as full and final severance compensation,
shall be paid Executive's unpaid Base Pay and any unpaid but accrued and earned
benefits, all of which shall be as accrued through the date of the Company's
declaration of permanent disability and termination.
10. DUTY OF LOYALTY. During the term of this Agreement, and at all
times that Executive is employed by the Company, Executive shall not, directly
or indirectly, either as a principal, partner, member, stockholder, corporate
officer, director, employee, representative, consultant, agent, or in any other
individual or representative capacity, own, manage, engage or participate in any
business that is in competition in any manner whatsoever with the business of
Company without the prior written consent of Company. Notwithstanding the
foregoing, Executive may own, as a passive or portfolio investment, stock or
other equity interest not exceeding five percent (5%) of the total ownership
interests of any competing business, provided that Executive is not a director,
officer, manager, employee, consultant, or active in the management of such
business or compensated, directly or indirectly, in any manner by such business
(other than normal and customary stock dividends or distributions made to all
shareholders or equity owners without distinction). Executive shall be deemed a
fiduciary of the Company with all duties attendant to a fiduciary owed by
Executive to the Company. All rights of enforcement and remedies regarding
fiduciaries shall inure to the Company. Violation of the foregoing provisions
shall constitute unfair competition and shall be a breach of this Agreement and
of Executive's fiduciary duties hereunder.
11. NON-SOLICITATION. During the term of this Agreement, and for a
period of two (2) years after the termination of this Agreement or any
employment by the Company, Executive shall not solicit any of the directors,
officers or employees of the Company for the benefit of any competing business
or otherwise interfere in or with the relationship between the Company and any
such employee. Executive shall be deemed a fiduciary of the Company so long as
employed by the Company, and even after the termination of this Agreement or any
employment by the Company, to the extent required by law. All rights of
enforcement and remedies regarding fiduciaries shall inure
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to the Company. Violation of the foregoing provisions shall constitute unfair
competition and shall be a breach of this Agreement and of Executive's fiduciary
duties hereunder
12. SPECIFIC PERFORMANCE. The obligations of Executive under this
Agreement are unique. If Executive should default in any obligations under this
Agreement, Executive acknowledges that it would be extremely impracticable to
measure the resulting damages; accordingly, the Company, in addition to any
other available rights or remedies, may xxx in equity for specific performance
without the necessity of posting a bond or other security, and Executive
expressly waives the defense that a remedy in damages will be adequate.
13. AMENDMENTS. This Agreement may be amended only in writing
executed by Executive and Company and approved in writing by the majority vote
of the Board of Directors of the Company.
14. EFFECT OF HEADINGS. The subject headings of the paragraphs
and subparagraphs of this Agreement are included for purposes of convenience
only, and shall not affect the construction or interpretation of any of its
provisions.
15. PARTIES IN INTEREST. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Contract, nor shall any provision give any third person any right of subrogation
or action over against any party to this Agreement.
16. RECOVERY OF LITIGATION COSTS. If any legal action or any
arbitration or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover as an
element of their damages, reasonable attorneys' fees and other costs incurred in
that action or proceeding, in addition to any other relief to which they may be
entitled.
17. GENDER; NUMBER. Whenever the context of this Contract requires,
the masculine gender includes the feminine or neuter gender, and the singular
number includes the plural.
18. TIME OF ESSENCE. Time shall be of the essence in all things
pertaining to the performance of this Agreement unless waived in writing by the
undersigned parties.
19. AUTHORITY. The parties to this Agreement warrant and represent that
they have the power and authority to enter into this Agreement in the names,
titles and capacitates herein stated and on behalf of any entities, persons or
firms represented or purported to be represented by each respective party.
20. WAIVER. A Waiver by either party of any of the terms and conditions
of this Agreement in any instance shall not be deemed or construed to a waiver
of such terms of condition
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for the future, or of any subsequent breach thereof, or of any other term and
condition of this Agreement. All waivers must be made in writing executed by the
waiving party.
21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties respecting the subject matter hereof, and there are no
representations, warranties, agreements or commitments between the parties
hereto except as set forth herein. The Agreement controls over any and all
provisions or guidelines contained in any Employee Manual, Employee Handbook,
Company Policy Manual or other similar document. Executive expressly
acknowledges that no Employee Manual, Employee Handbook, Company Policy Manual
or other similar document is or shall become a contract between the Company and
Executive.
22. NOTICES. Any notice, request, demand or other communication
permitted to be given hereunder shall be in writing and shall be deemed to be
duly given when personally delivered to an executive officer of the Company or
to Executive, as the case may be, or when deposited in the United States mail,
by certified or registered mail, return receipt requested, postage prepaid, at
the respective addresses of the Company and Executive as shown on the signature
page hereto. Either party may change by notice the address to which notices are
to be sent.
23. CHOICE OF LAW. This Agreement shall be construed, interpreted
and enforced in accordance with the laws of the State of California, and the
venue in regard to any disputes arising hereunder shall be in Orange County,
California.
24. SEVERABILITY. If any provision of this Agreement shall, for any
reason, be held unenforceable, such provision shall be severed from the
contract. The invalidity of such specific provision, however, shall not affect
the enforceability of any other provision herein, and the remaining provision
shall remain in full force and effect.
25. CONFIDENTIALITY. You (Executive) agree that all lists of, and other
information pertaining to, customers, merchants, ISOs, salespersons (or any part
or section of such lists or information), financial records, computer software
programs, strategic plans, contracts, agreements, literature, manuals,
brochures, books, records, correspondence, computer programs, software, source
codes, computations, data files, algorithms, techniques, processes, designs,
specifications, drawings, charts, plans, schematics, computer disks, magnetic
tapes, books, files, records, reports, documents, Instruments, agreements,
contracts, correspondence, letters, memoranda, financial, accounting, sales,
purchase and employment data, capital structure information, corporate
organizational information, identities, names and address of, and any
information pertaining to, shareholders, directors, officers, employees,
contractors, vendors, suppliers, customers, clients, lenders, financing and
business participants, and all persons associated with the Company, information
pertaining to business models, business plans, projections, assumptions and
analyses, particular projects, and all other data and information and similar
items relating to the business of the Company and all other data and information
and similar Items relating to the Company of whatever kind or nature and whether
or not prepared or compiled by the Company and all other materials furnished or
made available to you by the Company or any of its affiliates (as hereinafter
defined) relating to the business conducted by the Company, save and except for
all information and data Executive knew as of the date of his employment by the
Company or that is or may become known to the general public except by an
unauthorized disclosure by the Executive ("Confidential Information"), is and
are proprietary and
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confidential and are and shall remain the sole property of the Company.
Affiliate as used in this section shall mean Company, any entity in which
Company owns a majority ownership (directly or indirectly), or any entity that
owns a majority ownership of Company (directly or indirectly). You acknowledge
that the Confidential Information derives independent economic value, actual or
potential, from not being generally known to the public or to other persons who
can obtain economic value from its disclosure or use and that this
confidentiality provision constitutes efforts that are reasonable under the
circumstances to maintain the secrecy thereof.
You agree that you will not, directly or indirectly, at any time during
or after termination of employment use or reveal, divulge, disclose,
disseminate, distribute, license, sell, transfer, assign or otherwise make
known, directly or indirectly, the Confidential Information to any person or
entity not expressly authorized by the Company to receive such Confidential
Information. You shall exercise the highest degree of care and discretion in
accordance with your duty hereunder to prevent improper use or disclosure of the
Confidential Information and will retain all such Confidential Information in
trust in a fiduciary capacity unless: (i) such use or disclosure has been
authorized in writing by the Company through an executive officer, or (ii) is
required to be disclosed by law, a court of competent jurisdiction or a
governmental or regulatory agency. However, you, if permitted by such authority,
agree to immediately inform the Company or any such requirement prior to the
disclosure so that the Company can seek to protect such information. Further,
you agree to return and deliver all such materials, including all copies,
remnants, or derivatives thereof to the Company upon the termination of your
employment with the Company or at any other time upon request.
26. PATENTS AND INVENTIONS. Any interest in patents, patent
applications, inventions, technological innovations, copyrights, copyrightable
works, developments, discoveries, designs, and processes which Executive now or
hereafter during the period Executive is employed by the Company under this
Agreement or otherwise and for one (1) year thereafter may own, conceive of, or
develop and either relating to the fields in which the Company may then be
engaged or contemplates (as demonstrated by the records of the Company) being
engaged or conceived of or developed utilizing the time, material, facilities,
or information of the Company ("Inventions") shall belong to the Company. As
soon as Executive owns, conceives of, or develops any such Invention, Executive
agrees immediately to communicate such fact in writing to the Secretary of the
Company, and without further compensation, but at the Company's expense (except
as set forth below in item (a) of this Section 13, immediately upon request of
the Company, Executive shall execute all such assignments and other documents
(including applications for patents, copyrights, trademarks, and assignments
thereof) and perform any and all acts as the Company may reasonably request in
order (a) to vest in the Company all Executive's right, title, and interest in
and to such Inventions, free and clear of liens, mortgages, security interests,
pledges, charges, and encumbrances arising from the acts of Executive ("Liens")
(Executive to take such action, at Executive's expense, as is necessary to
remove all such Liens) and (b), if patentable or copyrightable, to obtain
patents or copyrights (including extensions and renewals) therefore in any and
all countries in such name as the Company shall determine.
27. ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, including the arbitrability of any
controversy or claim, shall be settled by arbitration in accordance with the
Commercial Arbitration Rules and the Optional Rules for Emergency Measures of
Protection of the American Arbitration Association ("AAA"), and
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judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. Any provisional remedy which would be
available from a court of law, shall be available from the arbitrator, to the
parties to this Agreement pending arbitration. Civil discovery shall be
permitted for the production of documents and taking of depositions. The
arbitrator(s) shall be guided by the California Rules of Civil Procedure in
allowing discovery and the arbitrator(s) shall decide all issues regarding
compliance with discovery requests. The Federal Arbitration Act shall govern all
arbitration proceedings under this Agreement. This Agreement shall in all other
respects be governed and interpreted by the laws of the State of California,
excluding any conflicts or choice of law rule or principles that might otherwise
refer construction or interpretation of this Agreement to the substantive law of
another jurisdiction. The arbitration shall be conducted in Orange County,
California by one neutral arbitrator chosen by AAA according to its Commercial
Arbitration Rules if the amount of the claim is one million dollars
($1,000,000.00) or less and by three neutral arbitrators chosen by AAA in the
same manner if the amount of the claim is more than one million dollars
($1,000,000.00). Neither party nor the arbitrator(s) may disclose the existence,
content, or results of any arbitration hereunder without the prior written
consent of both parties. All fees and expenses of the arbitration shall be borne
by the parties equally. However, each party shall bear the expense of its own
counsel, experts, witnesses, and preparation and presentation of proofs. The
prevailing party, according to the arbitrator(s), shall be entitled to an award
of reasonable attorney's fees and arbitration fees and administrative expenses.
This agreement to arbitrate shall survive the termination or repudiation of this
Agreement.
IN WITNESS WHEREOF, this Agreement is effective on the date first
set forth above.
By: /s/ XXX X. XXXXXXXXX
----------------------------------------------
Xxx X. Xxxxxxxxx,
as Chairman of Accesspoint Corporation
By: /s/ XXXXXX XXXXXX
----------------------------------------------
Xxxxxx Xxxxxx,
an individual
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