EMPLOYMENT AGREEMENT
AGREEMENT made as of the 26th day of August, 2002, by and between PIPELINE
DATA INC., a Delaware corporation having offices at 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxx 00, Xxxxxxxxx, Xxx Xxxx (the "Company"), NORTHERN MERCHANT SERVICES, INC.,
a New York corporation having offices at 00 Xxxx Xxxx Xx. PO Box 393, Xxxxxxx
Falls, New York ("Subsidiary") and XXXXX XXXXXX (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Company, Subsidiary and the Executive wish to set forth the
terms and conditions of the Executive's employment by the Company under the
terms of this Agreement effective as of the closing date contemplated by that
certain Acquisition Agreement by and among the parties, dated August 26, 2002
(the "Effective Date").
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment. The Company agrees to employ the Executive for the Term
specified in paragraph 2 and in the capacities set forth in paragraph 3 and the
Executive agrees to accept such employment, upon the terms and conditions
hereinafter set forth.
2. Term. This Agreement shall be for a term commencing on the Effective
Date and it shall expire four years thereafter (the "Term").
3. Duties and Responsibilities.
(a) During the Term, the Executive shall serve as an officer of the
Subsidiary and shall have the title of Vice President . In so serving, he shall
report to the President of the Company and shall be the an executive officer of
the Subsidiary with responsibility and status commensurate with such position.
(b) The Executive shall devote his full-time business efforts to the
affairs of the Company and Subsidiary. Other activities of the Executive shall
not materially conflict with the terms of this Agreement. The Executive will (i)
devote his best efforts, skill and ability to promote the Company's and
Subsidiary's interests; (ii) carry out his duties in a competent and
professional manner; (iii) work with other employees of the Company and
Subsidiary in a competent and professional manner; and (iv) generally promote
the best interests of the Company and Subsidiary.
(c) The Executive's principal place of employment shall be at the principal
offices of the Subsidiary (and such locations to which such principal office
shall be relocated) subject to reasonable travel requirements on behalf of the
Company.
4. Compensation.
(a) As compensation for services hereunder and in consideration of his
agreement not to compete as set forth in paragraph 10 below, the Company shall
pay the Executive during the Term, in accordance with the Company's normal
payroll practices, base salary compensation at an annual rate of $150,000 (the
"Base Salary").
(b) The Executive shall be entitled to receive an incentive bonus (the
"Incentive Bonus") of up to $150,000 upon meeting or exceeding certain
financial, sales or other goals set forth annually in advance by the Board of
Directors of the Company.
(c) The Executive shall be entitled to receive a performance bonus (the
"Performance Bonus") upon meeting or exceeding certain financial, sales or other
goals which are above and beyond those goals set forth for the Incentive Bonus
with the amount of such Performance Bonus being determined by the Board of
Directors
5. Expenses; Fringe Benefits.
(a) During the Term, the Executive shall be entitled to participate in the
benefit plans established by the Company for the benefit of its key executives.
(b) The Executive shall be entitled to four (4) weeks of paid vacation.
(c) The Executive shall have an automobile or an automobile allowance of
$600.00 per month minimum.
6. Discharge by Company. The Company shall be entitled to immediately
terminate the Term and to discharge the Executive for cause without further
remuneration, which shall be limited to the following grounds:
(i) fraud, misappropriation or embezzlement by Executive involving Employer
or any subsidiary or affiliate thereof;
(ii) the conviction in any jurisdiction of Executive for any crime
involving a felony; causing material adverse effect to company
(iii) Executive's demonstrated voluntary unwillingness to perform his
duties, including Executive's failure or refusal to carry out or perform such
actions or duties as he is specifically directed to carry out or perform by the
President and Chief Executive Officer or the Board of Directors of Employer,
provided that Executive shall not be required to perform any illegal or
unethical act;
(iv) the willful engaging by Executive in conduct which has or could
reasonably be expected to have a material adverse effect on Employer or any of
its subsidiaries or affiliates;
(v) the material breach by Executive of any representations, warranties,
agreements or covenants made by Executive in this Agreement or any other
agreement between Employer and Executive; or
(vi) Commission of a willful or intentional act or act of gross malfeasance
which could injure the reputation, business or business or business
relationships of the Company including the violation of the terms of paragraphs
9 and/or 10 hereof.
7. Disability, Death.
(a) If the Executive shall be unable to perform his duties hereunder by
virtue of illness or physical or mental incapacity or disability (from any cause
or causes whatsoever) in substantially the manner and to the extent required
hereunder prior to the commencement of such disability as determined by a
competent medical doctor (all such causes being herein referred to as
"Disability") and the Executive shall fail to have performed substantially such
duties for 90 consecutive days or for periods aggregating 180 days, whether or
not continuous, in any continuous period of one year (such 90th or 180th day to
be known as the "Disability Date"), the Company shall have the right to
terminate the Executive's employment hereunder as at the end of any calendar
month thereafter upon written notice to him. The Executive shall be entitled to
his Base Salary for the three month period following disability payable on the
Company's regular payroll schedule.
(b) In case of the death of the Executive, this Agreement shall terminate
and the Company shall be obligated to pay to the Executive's estate or as
otherwise directed by the Executive's duly appointed and authorized legal
representative, his Base Salary for the three month period following death
payable on the Company's regular payroll schedule.
8. Voluntary Termination. If the Executive voluntarily terminates his
employment prior to the end of the Term, he shall entitled to receive his salary
for the twelve month period following his termination as well as his bonus stock
allocation pursuant to the provisions 2.3 that certain Acquisition Agreement
signed by the parties on the date hereof, except that the bonus stock allocation
shall only be awarded for the twelve month period following termination, subject
to the four year expiration period as provided in provision 2.3.
9. Confidential Information. The Executive recognizes that he will occupy a
position of trust with respect to business and technical information of a secret
or confidential nature which is the property of the Company, or any of its
affiliates, and which has been and will be imparted to him from time to time in
the course of his employment with the Company. In light of this understanding,
the Executive agrees that:
(a) the Executive shall not at any time knowingly use or disclose, directly
or indirectly, any of the confidential information or trade secrets which is the
property of the Company, or any of its affiliates, to any person, except that he
may use and disclose to authorized Company personnel, licensees or franchisees
in the course of his employment; and
(b) within five (5) days from the date upon which his employment with the
Company is terminated, for any reason or for no reason, or otherwise upon the
request of the Company, he shall return to the Company any and all documents and
materials which constitute or contain the confidential information or trade
secrets of the Company, or any of its affiliates.
For purposes of this Agreement, the terms "confidential information" or
"trade secrets" shall include all information of any nature and in any form
which is owned by the Company, or any of its affiliates, and which is not
publicly available or generally known to persons engaged in businesses similar
to that of the Company, or any of its affiliates.
10. Non-Competition.
(a) The Executive agrees that his services hereunder are of a special
character, and his position with the Company places him in a position of
confidence and trust with the Company's agents, clients, customers and
employees. The Executive and the Company agree that in the course of employment
hereunder, the Executive has and will continue to develop a personal
acquaintanceship and relationship with the Company's agents, clients and
customers, and a knowledge of those clients' and customers' affairs and
requirements which may constitute the Company's primary or only contact with
such clients and customers. The Executive consequently agrees that it is
reasonable and necessary for the protection of the goodwill and business of the
Company that the Executive make the covenants contained herein. Accordingly, the
Executive agrees that while he is in the Company's employ the Executive will
not, without the prior written consent of the Company, either directly or
indirectly, or in any capacity whether as a promoter, proprietor, partner, joint
venturer, employee, agent, consultant, director, officer, manager, shareholder
(except as a shareholder holding less than five percent (5%) of a publicly
traded company's issued and outstanding capital stock, or otherwise) work for,
act as a consultant to or own any interest in any direct competitor of the
Company which operates in or provides services essentially the same as the
Company in any portion of the geographic territory where the Company operates or
sells its products or services. The Executive further agrees that during the
Term, and for the Three year period following the Executive's termination of
employment with the Company, the Executive will not solicit, entice, induce or
persuade: (i) any employee, agent, client or customer of the Company; or (ii)
any person or entity had been engaged in negotiations with the Company to
become, an employee, artist, client or customer of the Company during the six
month period prior to the Executive's termination of employment with the
Company, to alter, terminate or refrain from extending or renewing any
contractual or other relationship with the Company, or commence a similar or
substantially similar relationship with the Executive, any entity with whom the
Executive is affiliated or employed by or any direct competitor of the Company.
(b) As used in this paragraph 10, the term "Company" shall include
subsidiaries, officers, directors, employees, licensees, sub-licensees and
franchisees of the Company, the term "customer" shall mean any person or entity
who is then, or who had been at any time during the one year period immediately
preceding the date of termination of the Executive's employment, a customer of
the Company, and the term "client" shall mean any person or entity who is then,
or who had been at any time during the one year period immediately preceding the
date of termination of the Executive's employment, a client represented by,
signed by, working for or collaborating with the Company.
(c) The parties hereto agree that the duration and area for which the
covenant not to compete set forth herein is to be effective are reasonable. In
the event that any court determines that the time period or the area, or both of
them, are unreasonable and that such covenant is to that extent unenforceable,
the parties hereto agree that the covenant shall remain in full force and effect
for the greatest time period and in the greatest area that would not render it
unenforceable.
(d) If the Executive commits a material breach or is about to commit a
material breach, of any of the above provisions, the Company shall have the
right to temporary and preliminary injunctive relief to prevent the continuance
or commission of such breach prior to any hearing on the merits and to have the
provisions of this Agreement specifically enforced by any court having equity
jurisdiction without being required to post bond or other security and without
having to prove the inadequacy of the available remedies at law, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company. In addition, the Company may take all such
other actions and remedies available to it under law or in equity and shall be
entitled to such damages as it can show it has sustained by reason of such
breach.
(e) The existence of any claim or cause of action of the Executive against
the Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of those covenants and
agreements.
11. Resolution of Disputes. Any dispute by and among the parties hereto
arising out of or relating to this Agreement, the terms, conditions or a breach
thereof, or the rights or obligations of the parties with respect thereto, shall
be arbitrated in the City of New York, New York before and pursuant to then
applicable commercial rules and regulations of the American Arbitration
Association, or any successor organization. The arbitration proceedings shall be
conducted by a panel of three arbitrators, one of whom shall be selected by the
Company, one by the Executive (or his legal representative) and the third
arbitrator by the first two so chosen. The parties shall use their best efforts
to assure that the selection of the arbitrators shall be completed within 30
days and the parties shall use their best efforts to complete the arbitration as
quickly as possible. In such proceeding, the arbitration panel shall determine
who is a substantially prevailing party and shall award to such party its
reasonable attorneys', accountants' and other professionals' fees and its costs
incurred in connection with the proceeding. The award of the arbitration panel
shall be final, binding upon the parties and nonappealable and may be entered in
and enforced by any court of competent jurisdiction, such court may add to the
award of the arbitration panel additional reasonable attorneys' fees and costs
incurred by the substantially prevailing party in attempting to enforce such
award.
12. Enforceability. The failure of either party at any time to require
performance by the other party of any provision hereunder shall in no way affect
the right of that party thereafter to enforce the same, nor shall it affect any
other party's right to enforce the same, or to enforce any of the other
provisions of this Agreement; nor shall the waiver by either party of the breach
of any provision hereof be taken or held to be a waiver of any subsequent breach
of such provision or as a waiver of the provision itself.
13. Assignment. This Agreement is a personal contract and the Executive's
rights and obligations hereunder may not be sold, transferred, assigned, pledged
or hypothecated by the Executive. The rights and obligations of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company. If any assignment or transfer of rights hereunder is attempted
by the Executive contrary to the provisions hereof, the Company shall have no
further liability for payments hereunder.
14. Modification. This Agreement may not be cancelled, changed, modified or
amended orally, and no cancellation, change, modification or amendment shall be
effective or binding, unless it is in writing, signed by both parties to this
Agreement.
15. Severability; Survival. If any provision of this Agreement is held to
be void and unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement nevertheless shall be binding upon the parties with
the same effect as though the void or enforceable part has been severed and
deleted.
16. Notice. Notices given pursuant to the provisions of this Agreement
shall be sent by certified mail, postage prepaid, or by overnight courier, or by
telex, telecopier or telegraph, charges prepaid, to the addresses first written
above.
17. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
18. No Conflict. The Executive represents and warrants that he is not
subject to any agreement, instrument, order, judgment or decree of any kind, or
any other restrictive agreement of any character, which would prevent him from
entering into this agreement or which would be breached by the Executive upon
his performance of his duties pursuant to this agreement
19. Entire Agreement. This agreement represents the entire agreement
between the Company and the Executive with respect to the subject matter hereof,
and all prior agreements relating to the employment of the Executive, written or
oral, are nullified and superseded hereby.
IN WITNESS WHEREOF, the parties have set their hands and seals on and as of
the day and year first above written.
PIPELINE DATA INC.
By: /s/ XxxXxxxxxxx Xxxxx
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Name: XxxXxxxxxxx Xxxxx
Title: Chief Executive Officer
NORTHERN MERCHANT SERVICES, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: President
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
