EMPLOYMENT AGREEMENT
Exhibit
10.2
Exhibit
10.1
This
EMPLOYMENT
AGREEMENT
(“Agreement”) is made and entered into by and between Alert Merchant Services,
Inc., a Florida corporation, (the “Company”), and Xxxxxxxx
Xxxxx(“Employee”) effective as of January 4, 2008 or the actual
date Employee first reports for work ("Start Date").
RECITAL
The
Company
desires to employ Employee, and Employee is willing to accept employment
by the
Company, in each case on the terms and subject to the conditions set forth
in
this Agreement. NOW,
THEREFORE, the parties hereto hereby agree as follows:
AGREEMENT
1.
Position
and
Duties.
1.1
During the term of this Agreement, Employee agrees to be employed by and
to
serve the Company on a part-time basis as Vice-President
of Operations, and to
perform such duties consistent with such position as may be assigned to him
from
time to time by the Board of Directors or his designee as the Board shall
determine is necessary or appropriate in connection with the operation of
the
Company. Employee’s principal place of business with respect to his services to
the Company shall be Tampa, Florida, provided that
employee agrees to undertake such travel as may be required in the performance
of his duties. All travel expenses of Employee shall be reimbursed in
accordance with Section 3.3 (c) below.
1.2
Employee shall carry out his duties under the general supervision and direction
of the Board in accordance with the Company’s policies, rules and procedures in
force from time to time. All Company policies, rules and procedures currently
in
force must be provided to Employee in writing before execution of this
Agreement. Any changes to Company policies, rules and procedures must
be provided to Employee in writing thirty (30) days prior to the changes
becoming effective.
1.3
During the term of this Agreement, Employee shall devote adequate time,
attention, skill and efforts to his tasks and duties hereunder and to the
affairs of the Company on a regular (approximately 10-15 hours per week),
“best
efforts”, and professional basis and at all times such efforts shall be under
the direction of the Board of Directors.
2. Term
of
Employment.
2.1 Basic
Term. The
term of employment under this Agreement (the “Term”) shall begin on Start Date
and shall continue through one (1) calendar year after the Start Date (the
“Expiration Date”), unless earlier terminated in accordance with Article 2 or
extended pursuant to the following sentence. Unless written notice is
given by the Company or Employee to the other at least ninety (90) days prior
to
the Expiration Date (or any later date to which the Term shall have been
extended in accordance with this Section 2.1) advising that the one giving
such
notice does not desire to extend or does desire to further extend this
Agreement, the Term shall automatically be extended for an additional one-year
period without further action of either the Company or Employee.
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2.2
Termination for
Cause. Termination for Cause (as defined in Section 2.8(a)
below) may be effected by the Company at any time during the Term of this
Agreement and shall be effected by written notification to Employee from
the
Chairman of the Board of Directors or his designee, stating the reason for
termination. Such termination shall be effective immediately upon the
giving of such notice, unless the President or the Board of Directors shall
otherwise determine. Upon Termination for Cause, Employee shall be
paid all accrued salary, any benefits under any plans of the Company in which
Employee is a participant to the full extent of Employee’s rights under such
plans, accrued vacation pay and any appropriate business expenses incurred
by
Employee in connection with his duties hereunder prior to such termination,
all
to the date of termination, but Employee shall not be entitled to any other
compensation or reimbursement of any kind, including without limitation,
severance compensation.
2.3
Termination at
Will. Notwithstanding anything else in this Agreement, the
Company may effect a Termination at Will (as defined in Section 2.8(b) below)
at
any time during the Term of this Agreement upon giving written notice to
Employee of such termination. Upon any Termination at Will, Employee
shall be paid all accrued salary, any benefits under any plans of the Company
in
which Employee is a participant to the full extent of Employee’s rights under
such plans, accrued vacation pay, any appropriate business expenses incurred
by
Employee in connection with his duties hereunder, all to the date of
termination, and all severance compensation required under Section 4.1, but
no
other compensation or reimbursement of any kind. The Company may effect a
Termination at Will by giving sixty (60) days written notice to Employee
of such
termination.
2.4
Voluntary
Termination. In the event of a Voluntary Termination (as
defined in Section 2.8(c) below), the Company shall pay to Employee all accrued
salary, bonus compensation to the extent earned, any benefits under any plans
of
the Company in which Employee is a participant to the full extent of Employee’s
rights under such plans, accrued vacation pay and any appropriate business
expenses incurred by Employee in connection with his duties hereunder, all
to
the date of termination, but no other compensation or reimbursement of any
kind,
including without limitation, severance compensation. Employee may effect
a
Voluntary Termination by giving sixty (60) days’ written notice of such
termination to the Company.
2.5
Termination by
Death. In the event of Employee’s death during the Term of
this Agreement, Employee’s employment shall be deemed to have terminated as of
the last day of the month during which his death occurs and the Company shall
pay to his estate or such beneficiaries, as Employee may from time to time
designate all accrued salary, any benefits under any plans of the Company
in
which Employee is a participant to the full extent of Employee’s rights under
such plans, accrued vacation pay and any appropriate business expenses incurred
by Employee in connection with his duties hereunder, all to the date of
termination, but Employee’s estate shall not be paid any other compensation or
reimbursement of any kind, including without limitation, severance
compensation.
2.6
Termination by Reason of
Disability. If, during the Term of this Agreement, a physician
selected by the Company certifies that Employee has become physically or
mentally incapacitated or unable to perform his full-time duties under this
Agreement, and that such incapacity has continued for a period of five
consecutive months or 180 calendar days within any period of 365 consecutive
days, the Company shall have the right to terminate Employee’s employment
hereunder by written notification to Employee, and such termination shall
be
effective on the seventh (7th)
day
following the giving of such notice (“Termination by Reason of
Disability”). In such event, the Company will pay to Employee all
accrued salary, any benefits under any plans of the Company in
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which
Employee is a participant to the full extent of Employee’s rights under such
plans, accrued vacation pay, any appropriate business expenses incurred by
Employee in connection with his duties hereunder, all to the date of
termination, and all severance compensation required under Section 4.1, but
Employee shall not be paid any other compensation or reimbursement of any
kind. In the event of a Termination by Reason of Disability, upon the
termination of the disability, the Company will use its best efforts to reemploy
Employee, provided that such reemployment need not be in the same capacity
or at
the same salary or benefits level as in effect prior to the Termination by
Reason of Disability.
2.7
Employee’s Obligation Upon
Termination. Upon the Termination of Employee’s employment for any
reason, Employee shall within ten (10) days of such termination return to
the
Company all personal property and proprietary information in Employee’s
possession belonging to the Company. Unless and until all such
property and information is returned to the Company (which shall be determined
by the Company's standard termination and check-out procedures), the Company
shall have no obligation to make any payment of any kind to Employee
hereunder.
2.8
Definitions. For
purposes of this Agreement the following terms shall have the following
meanings:
a) “Termination
for Cause” shall mean termination by the Company of Employee’s employment
by the Company by reason of:
(i) Employee’s
willful dishonesty towards, fraud upon, or deliberate injury or attempted
injury
to, or breach of fiduciary duty to, the Company;
(ii) Employee’s
material breach of this Agreement, including any Exhibit hereto, or any other
agreement to which Employee and the Company are parties;
(iii) Employee’s
use or possession of illegal drugs at any time, use of alcoholic beverages
during working hours or on Company property except when specifically allowed
by
a company sponsored function, improper use of prescription drugs during working
hours or on Company property or Employee reporting to work under the influence
of illegal drugs or alcohol;
(iv) Conduct
by Employee, whether or not in connection with the performance of the duties
contemplated hereunder, that would result in serious prejudice to the interests
of the Company if Employee were to continue to be employed, including, without
limitation, the conviction of a felony or a good faith determination by the
Board of Directors that Employee has committed acts involving moral turpitude;
or
(v) Any
material violation of any rule, regulation or policy of the Company by Employee
or Employee’s failure to follow reasonable instructions or directions of the
President, or the Board of Directors of the Company or any policy, rule or
procedure of the Company (as it relates to the Employee’s written job
description) in force from time to time. All Company policies, rules,
regulations and procedures currently in force must be provided to Employee
in
writing before execution of this Agreement. Any changes to Company
policies, rules and procedures must be provided to Employee in writing thirty
(30) days prior to the changes becoming effective.
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b) “Termination
at Will” shall mean termination by the Company of Employee’s employment
by the Company other than (i) Termination for Cause, (ii) Termination by
Reason
of Disability (iii) Termination by reason of Employee’s Death, and (iv)
Voluntary Termination.
c) “Voluntary
Termination” shall mean termination by Employee of Employee’s employment
other than (i) Termination by Reason of Disability and (ii) Termination by
reason of Employee’s Death.
3. Salary,
Benefits and Bonus Compensation.
3.1 Base
Salary. Base Salary. As
payment for the services to be rendered by Employee as provided in Section
1 and
subject to the terms and conditions of Section 2, the Company agrees to
pay to
Employee a “Base Salary at the rate of $2,000 (U S Dollars) per month payable in
accordance with the Company’s regular payroll practices (twice monthly). Such
rate and Employee’s performance shall be reviewed by the Company’s Board of
Directors on an annual basis, commencing Starting Date, for a determination
of
whether an adjustment in Employee’s Base Salary should be made, which adjustment
shall be in sole discretion of the Company’s Board of
Directors.
3.2 Salary
Review. The Board of
Directors (or the Employment Committee if one exist, shall review the work
performed by employee and compensation six months into this agreement,
and make
changes to the salary amount as it deems appropriate.
3.3 Bonus.
A
signing bonus will be
paid in the amount to Employee based on the attainment of specific
goals. The Board of Directors will establish a goal for the company
each year. The amount of the bonus shall be determined by the Board
of Directors in its sole discretion.
3.4 Additional
Benefits. During the Term of this Agreement, Employee shall be
entitled to the following fringe benefits:
(a)
Employee Benefits.
Employee
shall be included in
all group insurance plans and other benefit plans and programs made available
to
management employees of the Company.
(b)
Vacation.
Employee
is entitled to take 2 weeks
paid vacation within one year from his Starting Date and 3 weeks each additional
year (adjusted for the part-time vs full time effort during the term of the
agreement).
(c)
Reimbursement
for
Expenses. The
Company shall reimburse Employee for reasonable and properly documented
out-of-pocket business and/or entertainment expenses incurred by Employee
in
connection with his duties under this Agreement in accordance with the Company’s
reimbursement policy in effect from time to time. Company’s reimbursement policy
currently in force must be provided to Employee in writing before execution
of
this Agreement. Any changes to Company’s policy must be provided to
Employee in writing thirty (30) days prior to the changes becoming
effective.
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4. Severance
Compensation.
4.1 Severance
Compensation in the Event
of a Termination at Will or Termination by Reason of
Disability. In the event Employee’s employment is terminated
in a Termination At Will or a Termination by Reason of Disability prior
to the
end of the then current Term, Employee shall be entitled to receive his
most
recent Base Salary and insurance coverage from the date of termination
for one
month after a release of all claims against Company is negotiated and signed
by
both parties. Such severance compensation is the only compensation to which
Employee shall be entitled following a Termination at Will or a Termination
by
Reason of Disability. For a Termination at Will, this severance amount
is in
addition to any required notification period as described in Section
2.3.
4.2 Acceleration
of
Payments. The Company may, in the Company’s sole discretion,
if Employee so requests within thirty (30) days following a Termination
at Will
or a Termination by Reason of Disability, elect to pay to Employee a lump
sum
severance payment by bank cashier’s check equal to the present value of the flow
of cash payments that would otherwise be paid to Employee pursuant to Section
4.1 above. Such present value shall be determined as of the date of
payment and shall be based on a discount rate equal to the interest rate
on
90-day U.S. Treasury bills, as reported in the Wall Street Journal (or
similar
publication), on the date of payment. If the Company elects to make a
lump sum severance payment, the Company shall make such payment to Employee
within ten (10) days following the date on which the Company notifies Employee
of its agreement to make a lump sum payment.
4.3 No
Severance Compensation Under Other
Termination. In the event of a Voluntary Termination,
Termination for Cause, or Termination by reason of Employee’s Death, neither
Employee nor his estate shall be paid any severance
compensation.
5.Other
Agreements. Employee agrees that to induce the Company to
enter into this Agreement, he has concurrently executed and delivered to
the
Company (a) an Employee Non-Disclosure Agreement and Proprietary Rights
Assignment dated as of event date herewith, in the form of Exhibit A hereto,
and
(b) a Non-Solicitation and Non-Competition Agreement dated as of event
date
herewith, in the form of Exhibit B
hereto. Employee hereby covenants and agrees to fully
abide by each and every term of such agreements, and agrees and understands
that
a breach or violation by Employee of any provision of any provision of
either of
such agreements shall constitute grounds for Termination for Cause under
Section
2.8(a)(ii) of this Agreement, and that no such termination shall limit
or affect
any other rights and remedies of the Company arising out of or in connection
with any such breach or violation. The covenants on the part of
Employee contained in such agreements shall survive termination of this
Agreement, regardless of the reason for such termination unless specifically
excluded by this agreement. Employee hereby represents and
acknowledges that the Company is relying on the covenants contained in
such
agreements in entering into this Agreement, and that the terms and conditions
of
the covenants contained in such agreements are fair and reasonable.
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6. Miscellaneous.
6.1 Waiver. The
waiver
of the breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach of the same or other provision
hereof.
6.2 Entire
Agreement;
Modifications. This Agreement represents the entire
understanding among the parties with respect to the subject matter hereof,
and
this Agreement supersedes any and all prior understandings, agreements,
plans
and negotiations, whether written or oral with respect to the subject matter
hereof including without limitation, any understandings, agreements or
obligations respecting any past or future compensation, bonuses, reimbursements
or other payments to Employee from the Company. All modifications to
this Agreement must be in writing and signed by both parties
hereto.
6.3 Notices. All
notices and other communications under this Agreement shall be in writing
and
shall be given by first class mail, certified or registered with return
receipt
requested, and shall be deemed to have been duly given three (3) days after
mailing to the respective persons named below:
If
to the
Company: Alert
Merchant Services, Inc.
Address: 0000
Xxxxxxxx Xxx,
Xxxxx 000X
Xxxxx,
Xx. 00000
Attn: Board
of
Directors
If
to
Employee: Xxxxxxxx
Xxxxx
0000
Xxxx
Xxxxxx Xxxxx
Xxxxx,
Xx 00000
Any
part
may change such party’s address for notices by notice duly given pursuant to
this Section
6.4 Headings. The
Section headings herein are intended for reference and shall not by themselves
determine the construction or interpretation of this
Agreement.
6.5 Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Florida.
6.6 Severability. Should
a court or other body of competent jurisdiction determines that any provision
of
this Agreement is invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, and all other provisions of this Agreement
shall be deemed valid and enforceable to the extent possible.
6.7 Benefits
of
Agreement. The provisions of this Agreement shall be binding
upon and inure to the benefit of the executors, administrators, heirs,
successors and assigns of the parties; provided, however,
that except as herein expressly provided, this Agreement shall not
be
assignable either by the Company (except to an affiliate of the Company)
or by
Employee.
6.8 Counterparts. This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one and the same Agreement.
6.9 Withholdings. All
compensation and benefits to Employee hereunder shall be reduced by all
federal,
state, local and other withholdings and similar taxes and payments required
by
applicable law.
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6.10 Remedies. All
rights and remedies of the Company hereunder shall be cumulative and the
exercise of any right or remedy shall not preclude the exercise of
another.
6.11 Interpretation
Review. Counsel in the negotiation and execution of this
Agreement has represented both parties to this Agreement, and no inference
shall
be drawn against the drafting party. Employee acknowledges that he
has in fact reviewed and discussed this Agreement with his counsel and
that he
understands and assents to the terms hereof.
6.12 Arbitration. Any
controversy or claim arising out of or relating to this agreement, or breach
thereof shall be settled by binding arbitration to be held in Dallas, Texas,
in
accordance with the Rules of the American Arbitration Association, and
judgement
upon any proper award rendered by the arbitrators may be entered in any
court
having jurisdiction thereof. There shall be three (3) arbitrators, one
(1) to be
chosen directly by each party at will, and the third arbitrator to be selected
by the two (2) arbitrators so chosen. To the extent permitted by the rules
of
the American Arbitration Association, the selected arbitrators may grant
equitable relief. Each party shall pay the fees of the arbitrator selected
by
him and his own attorneys, and the expenses of his witnesses and all other
expenses connected with the presentation of his case. The cost of the
arbitration including the cost of the record of transcripts thereof, in
any,
administrative fees, and all other fees and cost shall be borne equally
by the
parties.
IN
WITNESS WHEREOF,
the parties hereto have executed this Agreement effective as of the day and
year
first above written.
AS
TO THE
COMPANY
By:__
/s/
Xxxx Xxxxxxxxxx
________
Xxxx
Xxxxxxxxxx
Title:
CEO.
EMPLOYEE:
__
/s/ Xxxxxxxx
Xxxxx ___________
Xxxxxxxx
Xxxxx
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