Exhibit 10.1
EMPLOYMENT AGREEMENT
--------------------
AGREEMENT made this 14th day of June, 2005, by and between MONEY CENTERS OF
AMERICA, INC., a Delaware corporation with offices 000 Xxxxx Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxx xx Xxxxxxx, XX 00000 (the "Company"), and Xxxxx X. Xxxxx, an
individual presently residing at 0 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000
("Executive").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company has offered to employ Executive on the terms and
conditions set forth herein, and Executive has agreed to such employment.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth herein, the parties hereto, intending to be legally bound,
agree as follows:
1. Definitions. The following terms, when capitalized herein, shall
have the meanings set forth in this Section 1:
(a) Disability: As defined under any long-term disability insurance
program of the Company or, if no such program is in place, the good faith
determination by the Company's Board of Directors after consultation with a
qualified physician selected by the Company and approved by Executive (provided
that Executive is mentally and physically competent to give or withhold
approval) that Executive was or will be unable to perform his or her assigned
duties under this Agreement due to physical or mental illness, injury or
incapacity for a period of four (4) consecutive months, or for one hundred
twenty (120) days out of any twelve (12) month period.
(b) Executive: Xxxxx X. Xxxxx.
(c) ERISA: The Executive Retirement Income Security Act of 1974, as
amended.
(d) Good Cause: (i) The commission by Executive of an act or course of
conduct constituting fraud or dishonesty, or actions or failures to act
constituting gross negligence or willful neglect of duties by Executive in the
performance of his or her duties hereunder, as to the Company or its affiliated
companies or his or her employment hereunder, including without limitation any
breach of the Company's Code of Ethics, (ii) conviction of, or entry of a plea
of guilty or nolo contendere to charges of, any felony or other crime which has
or may have a material adverse effect on Executive's ability to carry out his or
her duties under this Agreement or on the reputation or business activities of
the Company, or any crime involving moral turpitude or dishonesty, whether or
not such crime relates to the Company or its affiliated companies or his or her
employment hereunder, or (iii) Executive's failure to comply with a lawful,
reasonable, material directive or policy of the Company known by or communicated
to him or otherwise to comply with this Agreement in any material respect, if
Executive does not take action toward curing the failure within ten (10) days,
or if such failure is not cured within thirty (30) days, after receipt by him of
written notice of such breach containing reasonable details concerning the
nature of the breach; or (iv) the commission by Executive of actions that are
contrary to the best interests of the Company or its subsidiaries and which
would be reasonably expected to have a material adverse effect on the Company or
its subsidiaries, if Executive does not take action toward curing such actions
within ten (10) days, or if such actions are not cured within thirty (30) days,
after receipt by him of written notice thereof containing reasonable details
concerning the nature of the action.
(e) Termination with Good Reason: Termination by Executive of his or
her employment with the Company by written notice to the Company stating that
the Company has committed a material breach of this Agreement or has failed to
maintain a Directors' and Officers' Insurance Policy of at least $1,000,000
covering Executive (and providing details of such breach or failure sufficient
to permit the Company to determine the nature thereof) and that Executive's
employment is terminated effective thirty (30) days following receipt by the
Company of Executive's notice unless such breach has been cured prior to the end
of such thirty (30) day period.
(f) Term of this Agreement: The period of time commencing with the day
and year first above written and ending on the date on which this Agreement
(other than the paragraphs 9 through 11 and 14) terminates pursuant to Section 3
hereof.
(g) Voluntary Termination: Termination by Executive of his employment
with the Company, if such termination is not a Termination with Good Reason.
2. Employment. The Company hereby employs Executive as Vice President
- Finance and Chief Financial Officer, and/or in such other capacities and with
such other titles consistent with such offices as the Company's Chief Executive
Officer shall from time to time reasonably determine, and Executive hereby
accepts such employment, upon the terms and conditions set forth herein.
Notwithstanding the foregoing, the Company may appoint a Chief Financial Officer
having credentials and/or experience materially superior to those of Executive,
in which case Executive shall retain the title of Vice President - Finance, and
the provisions of this Section shall be interpreted by reference to that title.
3. Term. Except as set forth below, the Term of this Agreement will
begin on the Effective Date and shall terminate on the earlier of (i)
Executive's death, (ii) that date specified in a notice by the Company to
Executive of the Company's determination that Executive has suffered a
Disability, (iii) that date specified in a notice by the Company to Executive of
the Company's termination of Executive's employment, whether or not for Good
Cause, (iv) that date specified in a notice by Executive to the Company of
Executive's Termination with Good Reason or Voluntary Termination (which date
shall be no earlier than thirty (30) days following the date the Company
receives such notice, provided that upon receipt of such notice the Company may
elect to accelerate the effective date of Executive's termination set forth
therein to such earlier date, not earlier than the date of the notice, selected
by the Company), or (v) at the close of business on December 31, 2006, provided
that the Term shall automatically renew thereafter for successive one (1) year
periods unless either party elects not to renew by written notice to the other
party at least thirty (30) days prior to the end of the initial or any renewal
Term. Notwithstanding the foregoing, each of Sections 9 through 11 and 14 hereof
shall continue in full force and effect until the expiration (if any) thereof as
set forth therein.
4. Basic Compensation. Executive shall receive an annual salary of not
less than One Hundred and Twenty Thousand Dollars ($120,000). Such annual salary
will be payable in periodic installments consistent with the Company's general
payroll practice, which will initially provide for semi-monthly payments.
Executive's annual salary shall be subject to no less than annual review and
adjustment by the Company's Board of Directors, but shall in no event be less
than One Hundred and Twenty Thousand Dollars ($120,000) per year.
5. Bonus. During the Term of this Agreement, Executive shall be eligible
to receive additional annual performance bonuses of up to Fifty Thousand Dollars
$50,000 per year based upon the Company's achievement of growth and performance
milestones as set forth on Exhibit "A." The bonus for the year ending December
31, 2005 shall be prorated from May 16, 2005. The annual performance bonus for
each fiscal year shall be due and payable no later than thirty (30) days
following completion of the Company's audited financial statements for such
fiscal year. Any annual bonus not paid within ninety (90) days following the
date when due shall accrue interest until paid at the rate of ten percent (10%)
per annum. Notwithstanding the foregoing, in the event that the Company's Audit
Committee does not approve an annual budget for the last six months of 2005 and
for 2006 within forty-five (45) days following submission of a proposed budget
by Executive, Executive shall be deemed to have earned $10,000 of his annual
performance budget for 2005.
6. Stock Options. Simultaneously with the execution of this Agreement,
the Company is granting Executive options (the "Options") to purchase Two
Hundred Thousand (200,000) shares of the Company's Common Stock with an exercise
price of $.42 per share. The Options will have a term of ten (10) years and be
exercisable as follows: (a) Fifty Thousand (50,000) Options shall be exercisable
immediately on the date of grant; (b) Fifty Thousand (50,000) Options shall be
exercisable on June 1, 2006; and (c) One Hundred Thousand (100,000) Options
shall be exercisable on June 1, 2007. Notwithstanding the foregoing, all options
shall be exercisable following a Change in Control (as defined in Section 12
below). These stock options will be issued under an award agreement in the form
attached as Exhibit "B" hereto pursuant to the Amended and Restated 2003 Stock
Incentive Plan and will be registered on an S-8 Registration Statement filed
with the Securities and Exchange Commission at such time as is reasonably
acceptable to the Company to complete such registration.
7. Basic Fringe Benefits. During the term of this Agreement, Executive
will participate (or be entitled to participate) in the health insurance, dental
insurance, retirement, group life insurance, long-term disability insurance and
other benefits plans maintained by the Company for the benefit of its employees
generally, as such benefit plans are in effect from time to time. Executive also
shall be entitled to reimbursement of his reasonable business expenses from time
to time in accordance with the Company's general policy. Reasonable business
expenses shall include, but not be limited to, all fees and expenses for
continuing professional education courses and all fees and expenses incurred to
maintain Executive's active status as a certified public accountant in the
Commonwealth of Pennsylvania. Executive agrees to maintain (and periodically
submit to appropriate personnel) such records and logs as may be required by the
Company with respect to such expense reimbursement. During the Term of this
Agreement, Executive shall be entitled to paid vacation in accordance with the
Company's general personnel policies from time to time in effect.
8. Extent and Nature of Services. Executive shall perform in the
capacities described in Section 2 as directed by the Chief Executive Officer of
the Company, and in so doing shall follow all lawful directives of the Company's
Chief Executive Officer. Executive shall devote his or her time, attention, and
energies to the business of the Company substantially on a full-time equivalent
basis and shall not be engaged in any other business activity, whether or not
such business activity is pursued for gain, profit, or other pecuniary
advantage, provided that, throughout the Term, Executive shall expressly be
permitted to actively pursue real estate investment ventures for personal
business and investment purposes, and shall be permitted to invest his assets in
any form or manner as he chooses and shall be permitted to perform civic or
charitable service; but only so long as any such other activities, investments
or service do not pose a conflict of interest with regard to his duties to the
Company, its subsidiaries or affiliates and do not interfere with his
performance of his duties hereunder. Executive will be furnished with facilities
and services commensurate with his position and adequate for the performance of
his duties.
9. Ownership and Disclosure of Information.
(a) Executive agrees that all Information (defined below) is owned
solely and absolutely by the Company; that Executive shall have no right, title
and interest in and to the Information; and that Executive hereby irrevocably
and absolutely assigns to the Company any such rights, including any and all
patent, trademark or copyright rights, and any and all rights to Information not
yet developed. "Information" shall mean all documentation, know-how and
information relating to the Company's past, present and future business which is
unique to the Company, including without limitation (i) specifications,
information and know-how, software (including, without limitation, the
underlying concept and production methodology of software, source code, object
code and documentation relating thereto), together with any upgrades, revisions,
modifications and any related materials, flowcharts, problem reports, bug
reports, and data dictionaries, (ii) business methods, (iii) marketing
strategies and plans, (iv) financial information and/or projections, (v)
operations manuals, (vi) bulletins, directories and memoranda, (vii) data bases,
(viii) internal specifications and testing procedures, (ix) price and fee lists,
(x) suppliers, clients and customers and materials relating to the Company's
relationship with its suppliers, clients and customers; (xi) information
provided to the Company by its clients and customers, (xii) medical records,
(xiii) any other confidential information which is not generally known to the
public, which if misused or disclosed, could have a reasonable possibility of
adversely affecting the business of the Company, (xiv) any information provided
to the Company under any obligation of confidentiality to a third party, and
(xv) Developments (defined below).
(b) Executive acknowledges that the Company shall be the sole owner of
all the results and proceeds of Executive's services hereunder, including but
not limited to, all patents, patent applications, patent rights, formulas,
copyrights, inventions, developments, discoveries, other improvements, data,
documentation, drawings, charts, and other written, audio and/or visual
materials relating to equipment, methods, products, processes, or programs in
connection with or useful to the Company's business (collectively, the
"Developments") which Executive, alone or in conjunction with any other person,
may conceive, make, acquire, acquire knowledge of, develop or create during the
term of Executive's employment hereunder, free and clear of any claims by
Executive (or any successor or assignee of him) of any kind or character
whatsoever other than Executive's right to compensation hereunder. Executive
acknowledges that all copyrightable Developments shall be considered works made
for hire under the Federal Copyright Act. Executive hereby assigns and transfers
his right, title and interest in and to all such Developments, and agrees that
he shall, at the request of the Company, execute or cooperate with the Company
in any patent applications, execute such assignments, certificates or other
instruments, and do any and all other acts, as the Board of Directors of the
Company from time to time reasonably deems necessary or desirable to evidence,
establish, maintain, perfect, protect, enforce or defend the Company's right,
title and interest in or to any such Developments.
(c) Executive agrees and covenants that he shall promptly disclose to
the Company, and shall not disclose to any other person, any and all
Developments and Information developed by or otherwise in the possession of
Executive which would be useful to the operations of the Company, all of which
shall constitute Information owned by the Company and subject to the terms of
this Agreement whether or not it has been disclosed to the Company.
10. Nondisclosure.
(a) Executive acknowledges that the Company possesses, and the
Information constitutes, distinctive methods and techniques of doing business
and that such methods and techniques are considered confidential and trade
secrets. Executive further recognizes that disclosure of the Information, or of
any proprietary information provided to the Company by any client or customer of
the Company (referred to herein together with the Information as "Confidential
Information") would result in substantial injury to the Company. Executive
hereby agrees that he or she will not copy, or remove from premises authorized
by the Company, any Confidential Information or other material related to the
operations of the Company or its clients or customers and all such items shall
remain at all times the sole property of the Company or such clients or
customers. Executive shall not at any time directly or indirectly disclose any
Confidential Information to any person not directly affiliated with the Company.
Executive agrees that he or she shall not use, either directly or indirectly, at
any time, any Confidential Information other than in furtherance of the
interests of the Company. Executive further agrees that the material disclosure
or use of Information by a spouse or member of the immediate family of Executive
(whether or not residing with Executive), or by any entity of which Executive or
any such family member is a proprietor, equity owner, creditor or otherwise
significant participant, shall be deemed a violation of this Agreement. Upon
termination of his or her employment, Executive will promptly deliver to the
Company all tangible materials and objects containing Information (including all
copies thereof, whether prepared by Executive or others) which he or she may
possess or have under his or her control, and all Confidential Information in
computer memory, regardless of format, shall be erased and Executive shall
certify such erasure to the Company in writing.
(b) Confidential Information shall not include information which (a)
was or becomes generally available to the public other than as a result of
disclosure by Executive to the public or any third party in violation of this
Agreement, (b) is required to be disclosed by Executive by a governmental
agency, court or law, so long as Executive provides the disclosing party with
written notice of the required disclosure promptly upon receipt of notice of the
required disclosure, or (c) is deemed in writing by the Company no longer to be
Confidential Information.
11. Covenant Not to Compete.
(a) For a period beginning with the termination of Executive's
employment with the Company for any reason (except for termination by Executive
for Good Reason, subsequent to which this Section 11 shall not apply), whether
by Executive or by the Company, and continuing until the expiration of twelve
(12) months from the date of termination, Executive covenants and agrees that he
or she will not:
(i) directly or indirectly solicit, entice or induce any client,
customer, or provider of the Company or its affiliates to
become a client, customer, or provider of any other person,
firm or corporation with respect to services then provided
by the Company or its affiliates or to cease doing business
with the Company or its affiliates, and Executive shall not
approach any such person, firm or corporation for such
purpose or authorize or knowingly approve the taking of such
actions by any other person; or
(ii) solicit, entice or induce any person who presently is or at
any time during the term hereof shall be an employee or
agent of the Company to become employed or retained by any
other person, firm or corporation or to leave their
employment or relationship with the Company, and Executive
shall not approach any such employee for such purpose or
authorize or knowingly approve the taking of such actions by
any other person, or do any other act that may result in the
impairment of the relationship between any such employee or
agent and the Company.
For purposes of this Section 11, Executive will be deemed to be directly or
indirectly engaged in such business or line of business if he or she is engaged,
or if he or she is actively negotiating or preparing to engage, in an endeavor
or enterprise as a proprietor, partner, joint venturer, stockholder, director,
officer, lender or other provider of financial assistance, manager, employee,
consultant, or agent, or if he or she otherwise controls such endeavor or
enterprise. Nothing in the foregoing shall prohibit Executive from engaging in
any business that is not in competition with the Company or its affiliates after
termination of employment with the Company, or investing in the securities of
any corporation having securities listed on a national securities exchange,
provided that such investment does not exceed 5% of any class of securities of
any corporation engaged in business in competition with the Company or its
affiliates, and provided that such ownership represents a passive investment and
that neither Executive nor any group of persons including him or her, in any
way, either directly or indirectly, manages or exercises control of any such
corporation, guarantees any of its financial obligations, otherwise takes any
part in its business, other than exercising his or her rights as a shareholder,
or seeks to do any of the foregoing.
(b) Executive represents (i) that his or her experience and
capabilities are such that the restrictions contained herein will not prevent
him or her from obtaining employment or otherwise earning a living at the same
general economic benefit as reasonably required by him or her and (ii) that he
or she has, prior to the execution of this Agreement, reviewed this Agreement
thoroughly with his or her legal counsel or has knowingly waived the opportunity
to do so.
(c) Executive acknowledges that the restrictions contained in Sections
9, 10 and 11 are reasonable and necessary to protect the legitimate business
interests of the Company and that the Company would not have entered into this
Agreement in the absence of such restrictions. By reason of the foregoing,
Executive agrees that if he or she violates any of the provisions of Sections 9,
10 or 11, the Company would sustain irreparable harm and, therefore, irrevocably
and unconditionally (i) agrees that in addition to any other remedies which the
Company may have under this Agreement or otherwise, all of which remedies shall
be cumulative, the Company shall be entitled to apply to any court of competent
jurisdiction for preliminary and permanent injunctive relief and other equitable
relief, (ii) that such relief and any other claim by the Company pursuant hereto
may be brought in the United States District Court for the Eastern District of
Pennsylvania, or if such court does not have subject matter jurisdiction or will
not accept jurisdiction, in any court of general jurisdiction in the
Commonwealth of Pennsylvania; (iii) consents to the non-exclusive jurisdiction
of any such court in any such suit, action or proceeding, and (iv) waives any
objection which Executive may have to the laying of venue of any such suit,
action or proceeding in any such court. Executive also irrevocably and
unconditionally consents to the service of any process, pleadings, notices or
other papers in a manner permitted by the notice provisions hereof. In the event
that any of the provisions of Sections 9, 10 or 11 hereof should ever be
adjudicated to exceed the time, geographic, product or service, or other
limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, product or service, other limitations permitted by applicable law.
(d) Executive agrees that the Company may provide a copy of Sections
9, 10 and 11 to any business or enterprise (i) which Executive may directly or
indirectly own, manage, operate, finance, join, control or participate in the
ownership, management, operation, financing, or control of, or (ii) with which
he or she may be connected as an officer, director, employee, partner,
principal, agent, representative, consultant or otherwise, or in connection with
which he or she may use his or her name or permit his or her name to be used;
provided, however, that this provision shall not apply as to Subsection (a)
after expiration of the time periods set forth therein or with respect to any
activities, entities or persons excluded by the terms hereof. Executive will
provide the names and addresses of any of such persons or entities as the
Company may from time to time reasonably request.
(e) In the event of any breach or violation of the restriction
contained in Subsection (a) above, the period therein specified shall xxxxx
during the time of any violation thereof and that portion remaining at the time
of commencement of any violation shall not begin to run until such violation has
been fully and finally cured.
(f) In the event any court of competent jurisdiction determines that
any of the foregoing provisions is unreasonable or contrary to law with respect
to their time or geographic restriction, or both, the parties hereto authorize
such court to substitute such restrictions as it deems appropriate without
invalidating this Section 11 or this Agreement.
(g) Executive hereby acknowledges and agrees that the Company's
agreement to enter into this Agreement on the terms and conditions set forth
herein, and the basic compensation, annual bonus and severance benefits, if any,
to be paid to him or her hereunder, individually constitutes good and valuable
consideration for the covenant set forth in Subsection (a) above.
12. Early Termination. In the event that Executive's employment by the
Company is terminated prior to then-current expiration date under Section 3(v),
Executive shall be entitled to compensation and benefits as described in this
Section 12.
(a) In the event the Company terminates Executive's employment without
Good Cause, or Executive effects a Termination with Good Reason:
(i) the Company shall pay to Executive 100% of Executive's
annual salary in effect as of the date of such termination
under Section 4 hereof, based on the Company's normal pay
schedule, for a period of (i) the greater of four (4) months
beginning on the date of termination or cessation of
Executive's employment or through the end of the initial
year of the Term of this Agreement; or (ii) the greater of
six (6) months beginning on the date of termination of
Executive's employment or through the end of the initial
year of the Term of this Agreement if such termination
occurs within twelve (12) months following a Change in
Control or announcement of any transaction that if
consummated would constitute a Change in Control;
(ii) Executive will be entitled to payment of accrued but unused
vacation time through the termination date and shall
continue receiving all basic fringe benefits described in
Section 7 during such periods set forth above and such
benefits as described in Subsections (e) and (f) below;
(iii) any performance bonus that would otherwise be payable to
the Executive under Section 5, assuming the Executive had
remained employed for the full calendar year in which the
terminating event occurs, shall be multiplied by a fraction,
the denominator of which is the number of days (365 or 366)
in the calendar year in which termination occurs and the
numerator of which is the number of days in such calendar
year through the date of termination; and
(iv) all unvested stock options held by Executive shall
automatically vest. Any payments under this Subsection (a)
shall constitute a severance benefit and in payment for the
covenant contained in Section 11.
(v) a "Change in Control" of the Company shall be deemed to have
occurred if: (1) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) who did not own
shares of the capital stock of the Company on the date of
this Agreement shall, together with his, her or its
"Affiliates" and "Associates" (as such terms are defined in
Rule 12b-2 promulgated under the Exchange Act), become the
"Beneficial Owner" (as such term is defined in Rule 13d-3
promulgated 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 (any such person being hereinafter
referred to as an "Acquiring Person"); (2) the "Continuing
Directors" shall cease to constitute a majority of the Board
("Continuing Director" shall mean any person who is a member
of the Board, while such person is a member of the Board,
who is not an Acquiring Person, an Affiliate or Associate of
an Acquiring Person or a representative of an Acquiring
Person or of any such Affiliate or Associate and who (A) was
a member of the Board on the date hereof or (B) subsequently
became a member of the Board, upon the nomination or
recommendation, or with the approval of, a majority of the
Continuing Directors); or (3) there should occur (A) any
consolidation or merger involving the Company and the
Company shall not be the continuing or surviving corporation
or the shares of the Company's capital stock shall be
converted into cash, securities or other property; provided,
however, that this subclause (A) shall not apply to any
merger or consolidation in which (I) the Company is the
surviving corporation and (II) the shareholders of the
Company immediately prior to the transaction have the same
proportionate ownership of the capital stock of the
surviving corporation immediately after the transaction; (B)
any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Company; or (C) any
liquidation or dissolution of the Company.
(b) In the event the Company terminates Executive's employment for
Good Cause, then Executive will be entitled to no further benefits under this
Agreement, other than as described in Subsection (e) below, and all rights of
Executive to compensation for any period following the date of termination shall
terminate.
(c) In the event of Executive's Voluntary Termination, or termination
upon death or Disability then Executive will be entitled to no further benefits
under this Agreement, other than as described in Subsection (d) below, and all
rights of Executive to compensation for any period following the date of
termination shall terminate; provided, that if a Voluntary Termination occurs
within three (3) months following a Change in Control, the Company shall pay to
Executive 100% of Executive's annual salary in effect as of the date of such
termination under Section 4 hereof, based on the Company's normal pay schedule,
for a period of two (2) months beginning on the date of termination plus all
accrued but unused vacation through the termination date.
(d) In the event of termination upon Executive's death or Disability,
then Executive will be entitled to no further benefits under this Agreement,
other than as described in Subsection (e) below; provided that (i) Executive or
his estate shall be paid a performance bonus for the calendar year in which
termination occurs equal to the performance bonus that would have been paid to
Executive under Section 5 for such calendar year had Executive remained employed
for the full calendar year, pro rated for the number of days in such calendar
year through the date of termination, (ii) Executive or his estate shall be paid
for all accrued but unused vacation, and (iii) all unvested options shall
immediately become exercisable.
(e) Upon termination of his employment, Executive shall be entitled to
any specified benefits to which he may be entitled under any pension, insurance
or welfare benefit plan of the Company pursuant to the terms thereof, and to no
other benefits except as set forth above.
(f) The parties acknowledge that any severance benefits payable to
Executive under this Section 12 are a separately negotiated benefit and are not
intended to create a benefit plan or program subject to ERISA.
13. Arbitration. To the extent permitted by applicable law, any
controversy or dispute arising out of, or relating to, this Agreement, or any
alleged breach hereof, shall be settled exclusively by arbitration in
Philadelphia, Pennsylvania, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association then in effect, by an arbitration panel
of three (3) individuals acceptable to the parties hereto. In the event that the
parties cannot agree on three arbitrators within twenty (20) days following
receipt by one party of a demand for arbitration from another party, then
Executive and the Company each shall designate one arbitrator and the two
arbitrators selected shall select the third arbitrator. The arbitration panel so
selected shall convene a hearing no later than thirty (30) days following
selection of the panel. The arbitration aware shall be final and binding upon
the parties, and judgment may be entered and execution issued thereon in the any
court of competent jurisdiction. Each party shall be responsible for his, her or
its own expenses and professionals' fees incurred in connection with any
arbitration. This Paragraph shall not apply to disputes arising under Section
11(c).
14. Miscellaneous.
(a) To the extent permitted by applicable law, the Company may
exercise a right of offset at any time and from time to time against any amounts
payable under this Agreement to the extent Executive is indebted to the Company
or any of its affiliated companies.
(b) Executive hereby authorizes the Company to withhold from any
compensation payable hereunder, any amounts required to be withheld under any
federal, state or local law as a result of the accrual by him or her of
compensation during the term of this Agreement (or any prior agreement
superseded hereby).
(c) Any notice required or permitted under this Agreement shall be
sufficient if it is in writing and shall be deemed given at the time sent by
certified mail, postage prepaid, with return receipt requested, addressed as
follows:
If to Executive:
Xxxxx X. Xxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxx, Esquire
Xxxx Xxxxx LLP
Centre Square West
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
If to the Company:
Money Centers of America, Inc.
000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Attention: President
With a copy to:
Xxxxxxxx X. Xxxxx, Esquire
Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Changes in the names and addresses may be effected at any time and from time to
time by notice similarly given.
(d) Failure by either party to this Agreement at any time or times
hereafter to require strict performance by the other party of any of the
provisions, terms, and conditions contained in this Agreement shall not waive,
affect, or diminish any right of the first party at any time or times thereafter
to demand strict performance therewith and with respect to any other provisions,
terms, or conditions contained in this Agreement. Any waiver of such provision,
term, or condition shall not waive or affect any other failure to perform a
provision, term, or condition of this Agreement, whether prior or subsequent
thereto, and whether of the same or a different type. None of the provisions,
terms, or conditions of this Agreement shall be deemed to have been waived by
any act or knowledge of a party hereto except by an instrument in writing signed
by that party and directed to the other party specifying such waiver.
(e) The invalidity or unenforceability of any provision of this
Agreement shall in no event affect the validity or enforceability of any other
provision.
(f) The provisions of this Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto, the successors of the Company, and
the heirs and assigns of Executive. There are no third party beneficiaries of
this Agreement.
(g) This Agreement and all exhibits hereto embody the entire agreement
between the parties with respect to the subject matter hereof, and supersedes
all prior agreements, contracts or understandings with respect thereto.
(h) Wherever any words are used herein in the singular form, they
shall be construed as though they were used in the plural form, as the context
requires; and vice versa.
(i) All captions appearing in this Agreement are inserted for
convenience of reference only. They constitute no part of this Agreement and are
not to be considered in the construction hereof.
(j) This Agreement may be executed in any number of counterparts, each
of which will be deemed one and the same instrument which may be sufficiently
evidenced by any one counterpart.
(k) Except to the extent preempted by federal law, the provisions of
this Agreement are to be construed, administered and enforced in accordance with
the domestic internal law (but not the law of conflict of laws) of the
Commonwealth of Pennsylvania.
[ REMAINDER OF PAGE INTENTIONALLY LEFT BLANK ]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
MONEY CENTERS OF AMERICA, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxxx
------------------------------------
Xxxxxxxxxxx X. Xxxxxxxxxx, President
/s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
EXHIBIT "A"
BONUS MILESTONES
Executive may receive up to a $50,000 bonus annually. The following milestones
are stated as a percentage of the $50,000 bonus. If Executive accumulates more
than 100%, Executive's bonus is capped at $50,000.
1. Bad debt reduction decrease as a percentage of revenue by 25% -
Executive is entitled to 10% of bonus.
2. Bad debt reduction decrease as a percentage of revenue by 50% -
Executive is entitled to 20% of bonus.
3. Bad debt reduction decrease as a percentage of revenue by 75% -
Executive is entitled to 30% of bonus.
4. Company stays within an Audit committee approved budget. 2% for every
month within budget.
5. Executive obtains additional financing for the Company (stock or debt)
- Executive is entitled to a portion of bonus equal to 2.5% of the
gross financing.
6. Executive introduces the Company to a financing source from which the
Company obtains replacement financing - Executive is entitled to 20%
of bonus.
7. Executive negotiates settlement of payables over 90 days for an amount
less than is due - Executive is entitled to a portion of bonus equal
to 5% of each dollar negotiated.
8. 10% of Executive's bonus is at the sole discretion of the board.
9. Decrease in SG & A by 10% as a percentage of revenue - Executive is
entitled to 5% of bonus.
10. Decrease in SG & A by 20% as a percentage of revenue - Executive is
entitled to 15% of bonus.
11. Decrease in SG & A by 30% as a percentage of revenue - Executive is
entitled to 30% of bonus.
Paragraphs 1-3 and 9-11 shall be determined by year-to-year comparisons;
provided that for the year ending December 31, 2005, comparisons shall be to
that portion of 2004 commencing on May 16, 2004.
EXHIBIT "B"
MONEY CENTERS OF AMERICA, INC.
AMENDED AND RESTATED 2003 STOCK INCENTIVE PLAN
AWARD AGREEMENT FOR NON-QUALIFIED STOCK OPTION
----------------------------------------------------
[ SEE EXHIBIT 10.2 ]
