Exhibit 10
EMPLOYMENT AGREEMENT
This Employment Agreement, effective as of April 17, 2006 (the "Effective
Date") between Xxxxxxx XxXxxxx (the "Executive") and Global Payment
Technologies, Inc. (the "Company").
WITNESSETH:
WHEREAS, the Company desires to have the Executive accept employment in a
management capacity with the Company and toward that end has requested that the
Executive enter into an employment agreement with the Company;
WHEREAS, the Executive is willing to accept employment in a management
capacity with the Company and enter into such an employment agreement on the
terms herein provided.
NOW, THEREFORE, in consideration of the respective covenants and agreements
of the parties contained herein, the parties hereto agree as follows.
1. Employment Term.
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The Company hereby agrees to employ the Executive, and the Executive
hereby agrees to serve the Company, on the terms and conditions set forth
herein. The employment of the Executive shall be for a term of one year
commencing on the Effective Date and ending April 16, 2007 ("Employment
Period"). After the conclusion of the Employment Period, the terms of this
Agreement will have no further force or effect.
2. Position and Duties.
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(a) The Executive shall occupy the position and perform the duties of
Vice President/Chief Financial Officer for the Company. Executive shall fulfill
such general management duties and responsibilities as are consistent with this
position (or any substantially similar management position with the Company or
its affiliates to which the Executive is promoted or assigned after the
commencement of the Employment Period), and as are assigned to the Executive
from time to time by the Board of Directors of the Company or its delegate.
(b) The Executive's best efforts and all business time shall be
devoted to the diligent, faithful, efficient and competent performance of the
Executive's duties and responsibilities hereunder and the Executive will not
engage in any other ventures or enterprises which will be a substantial invasion
upon such efforts and time. Executive will not engage in conduct that can
reasonably be expected to prejudice or injure the reputation of the Company or
any of its affiliates in any way. The Executive shall act at all times to
advance the interests of the Company and its affiliates.
3. Termination.
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(a) Death. This Agreement and the Executive's employment hereunder
shall terminate upon the Executive's death.
(b) Cause. The Company may terminate the Executive's employment
hereunder for Cause, upon notice to the Executive. For purposes of this
Agreement, the term "Cause" shall mean (i) a material breach by Executive of any
of the terms of this Agreement, (ii) failure by the Executive to devote all
business time exclusively to the performance of Executive's duties hereunder,
(iii) willful misconduct, (iv) dishonesty, (v) alcoholism or addiction to a
controlled substance or a prescribed drug, (vi) conviction of a felony or
misdemeanor or their equivalent under local law, (vii) habitual or gross
negligence in the performance of Executive's duties, (viii) the willful and
continued failure by the Executive to substantially perform Executive's duties,
(ix) failure to abide by instructions received from the President or the Board
of Directors of the Company or its delegate that are consistent with the terms
of this Agreement, or (x) the material or repeated violation of policies and
practices adopted by the Company. Termination for Cause under (i), (ii), (iii),
(vii), (viii), (ix) and (x) above shall occur only after written notice of such
breach, failure or violation and failure by the Executive to cure such breach,
failure or violation within ten days of the written notice, and in all other
cases above upon written notice.
(c) Disability. This Agreement may be terminated by the Company,
upon notice to the Executive, if as a result of the Executive's disability due
to physical or mental illness or injury, the Executive shall have been unable to
perform adequately Executive's duties for thirty consecutive calendar days.
(d) Termination by the Executive. The Executive may voluntarily
terminate employment hereunder at any time after the Effective Date by giving
the Company thirty days prior notice of intention to terminate. The Company may
designate any day within the thirty-day notice period as Executive's last day of
active employment. If the day so designated by the Company is less than thirty
days from the date the Executive provides notice of intention to terminate, the
Company will pay the Executive for the balance of the thirty days.
4. Place of Employment.
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The Executive shall perform the duties and responsibilities
contemplated hereunder at the Company's offices in Hauppauge in New York, except
for required travel on the Company's business.
5. Compensation and Benefits.
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(a) Base Salary. During the Employment Period, the Company shall pay
or cause to be paid to the Executive as compensation for services hereunder a
base salary at the rate of $200,000 per annum ("Base Salary") less appropriate
deductions (including legally required withholdings and elective deductions),
and payable in accordance with the Company's general payroll practice.
(b) Benefits. During the Employment Period, the Executive shall be
entitled to participate in all employee pension and welfare benefit plans and
programs which are from time to time made available to similarly situated
employees of the Company.
(c) Expenses. During the Employment Period, the Executive shall be
entitled to receive reimbursement for reasonable and customary expenses actually
incurred by Executive in the performance of Executive's duties (in accordance
with Company policies and procedures in effect from time to time), provided that
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any such expenses shall be reimbursable only to the extent that the Executive
properly accounts for them in accordance with Company policy.
(d) Vacations, Holidays and Personal Days. The Executive shall be
entitled to three weeks paid vacation and holidays and personal days ("Paid Time
Off") in accordance with the Company's policy in effect from time to time for
similarly situated employees of the Company.
(e) Housing and Automobile Allowance. During the Employment Period,
the Company shall pay for up to $3,000.00 per calendar month (prorated for any
partial month) for expenses actually incurred by Executive for the rental of
housing and furnishings and the lease of an automobile.
(f) Personal Travel. During the Employment Period, Executive shall
be entitled to reimbursement for expenses actually incurred by Executive for
weekly travel from New York to the Tampa, Florida metropolitan area, which
reimbursement shall be for ground transportation or parking, and coach airfare;
provided that such expenses shall be reimbursable only to the extent Executive
properly accounts for them in accordance with Company policy.
(g) Stock Options. Executive will be awarded options to purchase
250,000 shares of Company's Common Stock, par value $.01 per share, subject to
and in accordance with the terms of the Company's 2006 Stock Option Plan to be
voted upon at the annual meeting of the shareholders of the Company, on April
25, 2006. In the event the shareholders do not approve such Stock Option Plan,
Company and Executive shall negotiate in good faith an alternative financial
arrangement acceptable to both parties.
6. Payments Due Upon Termination.
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(a) Death or Disability. In the event the Executive's employment
is terminated due to the Executive's death or disability as defined in paragraph
3(c) above, Executive's right to further compensation and benefits under this
Agreement shall cease and all options held by the Executive shall be subject to
the terms of the applicable plan and option award agreement. The Executive shall
also remain entitled to any unpaid compensation and benefits accrued prior to
such termination of employment and to any expense reimbursement entitlement at
the date of such termination.
(b) Other Involuntary Termination. In the event the Company
terminates the Executive's employment during the Employment Period for reasons
other than those specified in paragraphs 3(a) through 3(c), the Company agrees
to provide the Executive the following payments and benefits which shall be
referred to as the "Termination Arrangement." If the Executive obtains
employment inside the Company or its affiliates during the period the Executive
is receiving payments and benefits pursuant to the Termination Arrangement, any
and all payments or benefits required pursuant to the Termination Arrangement
will cease.
(i) Executive will be paid whatever Base Salary he is owed
for the balance of the Employment Period. The payments provided pursuant to this
paragraph will be reduced by appropriate payroll deductions (including legally
required withholdings and elective deductions) and will be paid in accordance
with the Company's general payroll practice over a period ending on the last day
of the Employment Period (the "Separation Period").
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(ii) Executive will be eligible for continued benefits
coverage during the Separation Period or until Executive obtains new employment,
whichever occurs first, in accordance with Company policy in effect from time to
time, and will be eligible for continued group medical coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA") thereafter.
(iii) Existing awards made under the plans and programs of the
Company in effect from time to time will be subject to the terms of the
applicable plan and option award agreement. During the Separation Period,
Executive shall have the right to exercise options which by their terms are then
still exercisable subject to the terms and overall administration of applicable
plans and awards. For options held by Executive which will not have become
vested or exercisable on or before the end of the Separation Period, they will
be, in accordance with their terms, canceled and terminated and all eligibility
for payments pursuant thereto will cease at the end of the Separation Period.
(iv) Executive will receive payment for accrued but unused
Paid Time Off as of Executive's last day of active employment.
(c) Voluntary Termination or Termination for Cause. In the event
Executive voluntarily terminates employment hereunder or the Company terminates
the Executive's employment during the Employment Period for a reason specified
in paragraph 3(b), Executive's right to further compensation and benefits under
this Agreement shall cease. The Executive shall, however, remain entitled to any
unpaid compensation and benefits accrued prior to such termination of employment
and to any expense reimbursement entitlement as of the date of such termination.
Options vested at the time of termination shall be exercisable in accordance
with the terms of the applicable plans. Options which have not become vested
will be cancelled and terminated.
(d) Agreement and Release. The Termination Arrangement, except for
COBRA eligibility and vacation pay, is contingent upon the Executive signing an
agreement and release of claims which will be provided by the Company at the
time of termination of employment. The Termination Arrangement is in lieu of any
other severance amounts available under any severance plan or policy of the
Company and shall be deemed to include any local, state or federal statutory or
common law employment separation payments or notification pay including, without
limitation, payments under the federal Worker Adjustment and Retraining
Notification Act.
(e) Sale of Business. In the event the merger, acquisition, sale,
transfer or other disposition of the Company results in the Executive's loss of
employment with the Company, the Company will have no obligation under the
Termination Arrangement if the Executive either (i) is offered employment at the
same base salary and on substantially similar terms with similar duties and
responsibilities by a successor organization, or (ii) accepts employment by a
successor organization at any salary.
(f) Non-Renewal. If at the end of the Employment Period, the
Executive does not continue to remain employed by the Company, Executive must
exercise all exercisable options in accordance with the terms of the applicable
plans and option award agreements. No severance shall be made by the Company
pursuant to the other provisions of this paragraph 6.
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7. Offices.
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The Executive agrees to serve without additional compensation, if
elected or appointed thereto, in one or more offices, or as an officer or a
director of the Company, or any of its respective subsidiaries or affiliates.
8. Compliance with Code of Conduct and Non-Disclosure.
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(a) The Executive agrees that during the Employment Period, the
Executive shall comply with the code of conduct of the Company, as in effect
from time to time, and that after the termination of employment with the Company
the Executive remains subject to the provisions of the Company's confidentiality
provisions.
(b) During the Employment Period and thereafter, the Executive shall
not, without the written consent of the Board of Directors of the Company or a
person authorized thereby, disclose or use (except in the course of employment
hereunder and in furtherance of the business of the Company, its parent or their
subsidiaries and affiliates) any confidential information or proprietary data of
the Company, or its subsidiaries or affiliates, including without limitation,
information relating to suppliers, customers, customer lists, client
relationships, marketing strategies, finances, product features, and technology.
Confidential information shall not include any information known generally to
the public (other than as a result of unauthorized disclosure by the Executive)
or any information not considered by the Company as confidential or of a type
not otherwise considered confidential by persons engaged in the same business or
a business similar to that conducted by the Company, its parent, or their
subsidiaries or affiliates; provided, however, that, in this regard, the
Executive shall be solely responsible for inquiring as to and verifying with the
Company the status of any particular Company information prior to any
disclosure. The agreement made in this paragraph 9(b) shall be in addition to
and not in limitation or derogation of any obligations otherwise imposed by law
or by separate agreement upon the Executive in respect of confidential
information of the Company, its subsidiaries and affiliates.
(c) Executive agrees that upon termination of the Executive's
employment with the Company, for any reason, voluntary or involuntary, with or
without Cause, the Executive will relinquish all titles and authorities and
immediately return to the Company any property, customer lists, information,
forms,, formulae, plans, documents or other written or computer material,
software or firmware, or copies of the same, belonging to the Company, its
subsidiaries or affiliates, or any of their customers, within Executive's
possession, and will not at any time thereafter copy or reproduce the same.
Executive also agrees not to retain or use for Executive's account at any time
any trade name, trademark, service xxxx, or other proprietary business
designation used or owned in connection with the business of the Company, or its
subsidiaries or affiliates.
(d) Executive agrees that all inventions, designs, improvements,
writings and discoveries made by the Executive during the Employment Period
relating to the business of the Company shall belong to and remain the exclusive
property of the Company and shall be deemed to be a work made for hire and made
in the course of services rendered, with the Company having the right to obtain,
hold and renew, in its own name, patents, copyrights, registrations or other
appropriate protection. To the extent that any such material may not be deemed a
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work made for hire, the Executive hereby irrevocably assigns to the Company all
the Executive's right, title and interest therein and agrees to execute any and
all documents necessary to effect transfer and/or to assign to the Company such
ownership rights. The Executive shall cooperate and assist the Company at the
Company's cost and expense in obtaining and maintaining such applicable legal
protections and shall execute all documents and do all things necessary to vest
the Company with full and exclusive right, title and interest thereto, and
protect the same against infringements by others, all at the Company's cost and
expense.
(e) During the Separation Period, the Executive will not at any time
denigrate the Company, its parent or their subsidiaries or affiliates or any of
their respective products, properties, directors, officers, employees or agents
including, without limitation, by way of interviews or the expression of
personal views, opinions or judgments to the news media, provided that nothing
herein shall prevent the Executive from giving truthful testimony in a sworn
deposition or other legal or administrative proceeding.
9. Successors and Assigns.
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This Agreement and all rights hereunder shall inure to the benefit of
and be enforceable by the Executive's personal or legal representatives,
executors, administrators, heirs, distributees, devisees and legatees and by the
Company's successors and assigns. This Agreement is personal in nature and the
Executive shall not assign or transfer this Agreement or any right or obligation
hereunder to any other person. The Company, however, may assign or transfer this
Agreement and any of its rights or obligations hereunder to a subsidiary,
parent, affiliate or successor organization or entity without the consent of the
Executive.
10. Governing Law.
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This Agreement shall be governed by and construed in accordance with
the substantive law but not the choice of law rules of the State of New York.
11. Jurisdiction for Legal Actions.
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The Company and the Executive agree that any legal action commenced by
either party to resolve any dispute arising under this Agreement will be
resolved only in the courts of the State of New York in accordance with Section
5-1.402 of the General Obligations Law of the State of New York or in the courts
of the United States of America for the Southern District of Now York, and that
each party irrevocably submits to the personal jurisdiction of such courts and
hereby waive any and all objections as to venue, inconvenient forum and the
like.
12. Notice.
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For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given or delivered when sent by facsimile or mailed by
registered mail, return receipt requested, postage prepaid, addressed as
follows:
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If to the Executive:
Xxxxxxx XxXxxxx
00000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
If to the Company:
Global Payment Technologies, Inc.
000 X Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: President
Facsimile: 000-000-0000
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: H. Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
or to other such address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective upon receipt.
13. Amendment.
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No amendment, modification, or waiver of this Agreement or any of its
provisions shall be binding upon either parity unless made in writing and signed
by both parties.
14. Validity.
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The invalidity or unenforceability of any provision or provisions of
this Agreement shall not acct the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect, nor
shall the invalidity or unenforceability of any portion of any provision of this
Agreement affect the validity or enforceability of the balance of such
provision.
15. Counterparts.
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This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.
16. Entire Agreement.
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This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and supersedes all other prior
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agreements, understandings and arrangements between the parties hereto, all of
which are merged herein. There are no restrictions, promises, warranties,
covenants or undertakings other than those expressly set forth herein or
incorporated herein by reference.
17. Waiver.
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The observation or performance of any condition or obligation imposed
upon the Executive hereunder may be waived only upon the written consent of the
Company's Chief Executive Officer or a delegate of the Chief Executive Officer.
Such waiver shall be limited to the terms thereof and shall not constitute a
waiver of any other condition or obligation of the Executive under this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date and year first written above.
Global Payment Technologies, Inc. Xxxxxxx XxXxxxx
By: Signature:
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Name:
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Title:
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