EXHIBIT 10.1(s)
CONSULTING AGREEMENT
THIS IS A CONSULTING AGREEMENT (this "Agreement") made and entered into on
April 1, 1997 by and between PMT Services, Inc., a Delaware corporation ("PMT")
and Xxxxxxx X. Xxxx, a resident of Atlanta, Georgia ("Xxxx"), in which the
parties hereto, in consideration of the mutual covenants contained herein and
for $1.00 and other good and valuable consideration, do hereby agree as follows:
1. Consulting; Term. For the period (the "Consulting Period") commencing
on April 1, 1997 and ending on September 30, 1998, PMT hereby engages Xxxx as a
consultant and Xxxx hereby accepts such engagement, all upon the terms and
conditions set forth in this Agreement. Upon the mutual written consent of PMT
and Xxxx, the Consulting Period may be extended for an additional twelve months
on the same terms and conditions as set forth in this Agreement.
2. Duties and Responsibilities. During the Consulting Period, Xxxx shall
undertake such executive level consulting projects as PMT shall reasonably
request, including without limitation, developing business strategies and making
contact with merger and acquisition prospects, alliance and joint venture
partners. This activity shall include, but not be limited to conducting and
leading Due Diligence teams, and structuring, negotiating and closing
transactions following the appropriate PMT Board of Director approval.
In addition, Xxxx shall advise and assist Company management in the
implementation of their business strategy of consolidation of the credit card
and electronic commerce industry. Xxxx shall also provide advice and consulting
services on company administration, legal, and related matters. Xxxx shall have
full authority to coordinate and direct assigned projects subject to final
approval of the PMT CEO and PMT Board of Directors. Xxxx will work closely with
the Chairman of the Board and CEO of PMT, as well as the other officers and
directors of PMT. During the Consulting Period Xxxx shall devote his efforts
and attention on substantially a full time basis, to the performance of the
duties required of him as a Consultant of PMT and, while working from the
Nashville, Tennessee area, will be provided reasonable and suitable office space
and support at PMT's offices to assist in the performance of his obligations
hereunder. Xxxx shall perform such duties to the best of his abilities, shall
use his best efforts to promote the success of the business of PMT and shall not
engage in any other business activity or occupation which is competitive with
PMT's business of marketing and servicing electronic credit card authorization
and payment systems, check verification, ATM processing, and related electronic
commerce activity. Xxxx will be available for travel as necessary and
appropriate to perform his duties under this Agreement. Xxxx may own stock not
to exceed 5% of shares outstanding in one or more public companies that compete
with PMT.
It is acknowledged and agreed that Xxxx is an independent contractor
of PMT and not an employee of PMT and each of the parties to this Agreement
agree to take actions consistent with the foregoing. Xxxx shall be based in
Atlanta, Georgia. Xxxx shall be permitted to hire any employees he deems
necessary to assist him in performing his tasks, and he shall be solely
responsible for compensating any such employees as he deems appropriate. Xxxx
may determine the location from which he works and may set his own hours of
work, provided that he works a sufficient amount of hours to accomplish his
duties under this Agreement. Neither party may assign its duties or obligations
under this Agreement without the other's express and advance approval which may
be given or withheld in his or its sole discretion.
3. Compensation; Reimbursement of Expenses. (a) PMT shall pay Xxxx a
consulting retainer fee of $15,000.00 per month, payable on the fifteenth day of
each month. Payment of any and all taxes, FICA, and medicare payments shall be
the sole responsibility of Xxxx. In the event that PMT is deemed liable by the
Internal Revenue Service, a Court of law, or any other entity for the payment of
such taxes, FICA or medicare payments, Xxxx specifically agrees to indemnify PMT
for such amounts. Provided, however, Xxxx shall not be responsible for paying
any portion of such monies, if any, owed by PMT. PMT will reimburse Xxxx for
all reasonable administrative, travel and entertainment expenses incurred in the
performance of his duties under this Agreement.
(b) In addition to payments made in this Paragraph 3(a), PMT shall pay
Xxxx a commission in cash equal to one percent (1%) of the consideration payable
for any acquisition by PMT of stock or assets, or merger, joint venture,
alliance or similar transaction (collectively referred to herein as a
"Purchase") involving PMT that was directed by Xxxx and closed either during the
term of this Agreement or within six (6) months of the termination of this
Agreement; provided, however, PMT's Board of Directors must approve of any such
Purchase. For this commission calculation purpose, the "consideration" which is
the basis upon which the 1% is to be measured includes consideration in cash or
debt or equity securities or interests and any other form of consideration paid,
contingent or otherwise, including the assumption of debt or other liabilities
by PMT. Such commissions shall become payable upon the closing of any Purchase.
4. Stock Options. The Compensation Committee of the Board of Directors
("Compensation Committee") shall be responsible for drafting a stock option
agreement, under which Xxxx shall receive non-qualified stock options to acquire
up to 50,000 shares of PMT Common Stock. The exercise price for said option
shares shall be equal to the closing price quoted on NASDAQ on the day the
Compensation Committee approves the stock option agreement. Said shares shall
vest over a period of four years, with 12,500 shares vesting on the anniversary
date of the Compensation Committee's approval of the stock option agreement in
the years 1998, 1999, 2000, and 2001.
5. Confidentiality. Xxxx understands and agrees that he will not at any
time, during the term of this Agreement or at any time thereafter, directly or
indirectly, communicate, furnish, divulge or disclose to any person, individual,
firm, association, partnership, corporation
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or other entity any confidential or proprietary knowledge or information that
Xxxx may receive from PMT or its employees, including but not limited to its
trade secrets, confidential or proprietary knowledge or other such information
with respect to any non-public, confidential or proprietary matters concerning
or relating to the business of PMT. Such matters shall include, but not be
limited to (1) PMT's methods of doing business or obtaining business, (2) PMT's
proposals, studies, or marketing plans, (3) all information about the identity
of or any listing of any of the PMT's employees, customers or clients and (4)
the terms and conditions of any of PMT's contracts or agreements. Xxxx agrees
to require that any employees hired by him to assist in the performance of his
duties be bound by the provisions of this paragraph 5. Provided, however,
nothing contained in this paragraph 5 shall apply to any knowledge or
information that (1) is generally available to the public or becomes generally
available to the public other than as a result of a disclosure in violation
hereof by Xxxx or his employee or agent, (2) prior to its disclosure, was
available to Xxxx prior to his association with PMT or (3) becomes available to
Xxxx from a source other than PMT or any of its Representatives, provided that
such source is not, to Xxxx'x knowledge, bound by a confidentiality agreement
with respect to such information. For purposes of this Agreement, the term
"Representatives" shall mean PMT's directors, officers, employees, attorneys,
accountants and others engaged by PMT or intended to be engaged by PMT to advise
it.
6. No Liability; Indemnification. Xxxx shall not be liable to PMT for
any act or failure to act by Xxxx in connection with this Agreement, other than
any act constituting willful misconduct, gross negligence, a breach of this
Agreement, or as specified in Paragraph 3 hereof. PMT shall defend, indemnify
and hold Xxxx harmless with respect to his service under this Agreement to the
full extent permitted by PMT's bylaws and the Delaware General Corporation Law.
7. Termination After Change in Control. Upon any "Termination," as
defined below, within eighteen months after any "Change in Control" of PMT, as
defined below, PMT shall pay Xxxx as severance of his consulting relationship
one year's retainer fee of $180,000.00 and the greater of the amount of
commissions earned for the calendar year in which such Termination occurs or for
the calendar year prior to the year in which such Termination occurs. Said
severance amount shall be paid within 10 days of such Termination.
a. "Termination" shall include:
(1) The assignment to Xxxx of any duties materially inconsistent
with Xxxx'x position, authority, duties or responsibilities as then in
effect, or any other action by PMT which results in a substantial and
material diminution in such position, authority, duties or
responsibilities, excluding for this purpose any action taken with the
written consent of Xxxx.
(2) Any material breach by PMT of this Agreement or any purported
termination by PMT of Xxxx'x consulting relationship otherwise than as
expressly permitted by this Agreement; or
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b. For purposes of this Agreement, "Change in Control" shall mean:
(1) The acquisition (other than from PMT) by any person, entity
or "group" within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act (excluding, for this purpose, any employee benefit plan
of PMT or its subsidiaries which acquires beneficial ownership of
voting securities of PMT) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of
either the then outstanding shares of Common Stock or the combined
voting power of PMT's then outstanding voting securities entitled to
vote generally in the election of directors; or
(2) Approval by the stockholders of PMT of a reorganization,
merger, or consolidation, in which the shares of PMT voting stock
outstanding immediately prior to such reorganization, merger or
consolidation do not constitute or become exchanged for or converted
into more than 50% of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, or a
liquidation or dissolution of PMT or of the sale of all or
substantially all of the assets of PMT.
8. Termination.
a. Termination with Cause. PMT or Xxxx may terminate its or his
obligations under this Agreement, respectively, (other than the obligation
of PMT to pay earned commissions then payable to Xxxx) upon the material
breach or default by the other of any provision of this Agreement if such
breach or default is capable of and not cured within 10 days after written
notice is given to the breaching or defaulting party. Notwithstanding the
foregoing, PMT shall have the right to terminate this Agreement immediately
for any of the following causes:
(1) admission or conviction of, or a plea of guilty or nolo
contendere by Xxxx to (a) any felony, or (b) any crime involving moral
turpitude; or
(2) a determination by PMT's Board of Directors, after a diligent
inquiry by it involving the exercise of due care, that Xxxx has failed
to perform the duties hereunder.
Should PMT terminate this Agreement for cause, Xxxx shall be entitled to a
pro-rata portion of his monthly retainer fee based upon the number of days
worked in the month of said termination and any earned but unpaid
commissions as outlined in paragraph 3(b) of this Agreement, provided,
however, no commissions are earned and payable unless a transaction is
closed within six months of the termination of this Agreement.
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b. Termination on Account of Death or Medical Disability. PMT may
terminate its obligations under this Agreement upon the death of Xxxx or
upon the expiration of sixty days following the commencement of a
continuous period of medical disability (either physical or mental) of Xxxx
causing him to have been substantially unable to perform his duties
pursuant to this Agreement for such sixty-day period; provided, however,
that any stock option which has previously been granted to Xxxx shall
continue in effect to the extent provided in the stock option agreement. A
state of "medical disability" that may be conclusively established by the
parties' agreement that such state exists or by the issuance of a letter
confirming such disability written by a duly licensed and practicing
physician selected by PMT. A state of medical disability shall commence
upon the first day Xxxx is substantially unable to perform his duties
hereunder because of any medical disability.
9. Covenant not to Solicit. For a period of five years after cessation
of this Agreement for whatever reason, Xxxx will not at any time, directly or
indirectly solicit, induce, or attempt to solicit or induce any employee of PMT
to terminate his or her employment with PMT, and Xxxx also agrees not to hire,
solicit, recruit or assist in the hiring, solicitation, or recruitment of, for
purposes of competition with PMT in any fashion, any current employees as of the
last date this Agreement was in effect or former employees of PMT that were
employed at any time during the last year of Xxxx'x association with PMT. For
this same 5 year period, Xxxx furthermore agrees not to contact or call on
clients or customers of PMT (who were clients or customers during Xxxx'x
Agreement with PMT). This covenant by Xxxx shall be construed as an agreement
independent of any other provision of this Agreement. The existence of any
claim or a cause of action of Xxxx against PMT, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by PMT
of this covenant. Provided, further, if any provision of this paragraph 9 is
held invalid, such provision shall be severed and the balance thereof shall
remain valid and enforceable. In the event a court of competent jurisdiction
determines that the scope of business restricted or the time or geographical
limitations imposed are too broad to be capable of enforcement, the parties
hereto agree that such court should ignore such provisions and instead enforce
such provisions as to such scope, time and geographical area as the court deems
proper. Xxxx acknowledges that the remedy at law for breach of this paragraph 9
will be inadequate and that PMT shall be entitled to injunctive relief. The
provisions of this paragraph 9 shall survive the termination of this Agreement.
Xxxx agrees to require that any employees hired by him to assist in the
performance of his duties be bound by the provisions of this paragraph 9.
10. Miscellaneous.
a. Severability. Each of the covenants and agreements contained in
this Agreement shall be independent and severable from the others, and the
invalidity, illegality or unenforceability of any provision of this
Agreement shall not affect any other provision of this Agreement, which
shall remain in full force and effect, nor shall the invalidity, illegality
or unenforceability of a portion of any provision of this Agreement affect
the balance of any such provision.
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b. Assignment; Successors in Interest. Except for the transfer of
options by will or the laws of descent and distribution as provided in the
stock option agreement described in Section 4 of this Agreement, Xxxx shall
have no right to assign or transfer any or all of his rights and
obligations under this Agreement without the prior written consent of PMT.
This Agreement shall be binding upon the parties to this Agreement and
their respective legal representatives, heirs, devises, legatees and
successors and assigns (whether or not permitted), shall inure to the
benefit of the parties to this Agreement and their respective permitted
legal representatives and permitted successors and assigns, and any
reference to a party to this Agreement shall also be a reference to a
successor or permitted assign.
c. Notices. All notices or other communications provided for under
this Agreement shall be in writing signed by the party making the same and
shall be either delivered in person or mailed by first-class mail (postage
prepaid) addressed to:
If to Xxxx, to:
Xxxxxxx X. Xxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Fax No. (000) 000-0000
Phone No. (000) 000-0000
If to PMT, to:
Xxxxxxxxxx X. Xxxxxxx
PMT Services, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Fax No. (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx
A Professional Limited Liability Company
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Fax No. (000) 000-0000
or to such other person or at such different address as a party to this
Agreement may furnish to the other in writing pursuant to the foregoing.
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d. Gender; Number; Captions. Whenever the context of this Agreement
requires, the gender of any pronoun includes the other genders, and the
singular number includes the plural. Titles and captions in this Agreement
are inserted only as a matter of convenience and for reference and in no
way define, limit, extend or describe the scope of this Agreement or the
intent of its provisions.
e. Controlling Law; Integration; Amendment; Waiver. This Agreement
shall be governed by, construed and enforced in accordance with the laws of
the State of Tennessee, unless specifically indicated otherwise. This
Agreement supersedes all prior negotiations, agreements and understandings
between the parties to this Agreement, constitutes the entire agreement
between the parties to this Agreement as to the subject matter of this
Agreement, and may not be altered or amended except in writing signed by
the parties to this Agreement. The failure of either party to this
Agreement at any time or times to require performance of any provision of
this Agreement shall in no manner affect the right to enforce the same; and
no waiver by either party to this Agreement of any provision or of a breach
of any provision of this Agreement, whether by conduct or otherwise, in any
one or more instances shall be deemed or construed either as a further or
continuing waiver of any such provision or breach or as a waiver of any
other provision or of a breach of any other provision of this Agreement.
f. Counterparts. This Agreement may be signed by each party upon a
separate copy, and in such case one counterpart of this Agreement shall
consist of two copies to reflect the signature of each party. This
Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, and it shall not be necessary in making proof of
this Agreement or its terms to produce or account for more than one of such
counterparts.
DULY EXECUTED by the undersigned, as of April 1, 1997.
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Consultant
PMT SERVICES, INC.
By: /s/ Xxxxxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
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