Attached files
| file | filename |
|---|---|
| 8-K - ACIES CORP | acies8k021810.htm |
| EX-10.2 - ACIES CORP | ex10-2.htm |
| EX-99.1 - ACIES CORP | ex99-1.htm |
Exhibit
10.1
Employment
Agreement
This Employment Agreement (this
"Agreement"), dated as of February 18,
2010, to be effective as of
March 1, 2010 (the
"Effective
Date"), is entered into
between ACIES
CORPORATION, a Nevada
corporation, having a place of business at 132 West 36th Street, 3rd Floor, New
York, New York 10018 ("Employer"), and STEVEN WOLBERG, an individual ("Executive").
WHEREAS, Employer desires to employ Executive as its Chief Strategic Officer;
and
WHEREAS, Executive is willing
to accept such continued employment on the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in
consideration of the mutual agreements set forth herein, Employer and Executive
hereby agree as follows:
ARTICLE
I
EMPLOYMENT;
POSITION, DUTIES AND AUTHORITY
1.01
Employment. Employer agrees to, and does hereby, continue to employ Executive,
and Executive agrees to, and does hereby accept such continued employment, upon
the terms and subject to the conditions set forth in this Agreement. Executive
represents and warrants to Employer that (A) Executive has the legal capacity to
execute and perform this Agreement, (B) this Agreement is a valid and binding
agreement enforceable against Executive according to its terms, and (C) the
execution and performance of this Agreement by Executive does not violate the
terms of any existing agreement or understanding to which Executive is a party
or by which Executive otherwise may be bound.
1.02 Position,
Duties and Authority. During the Term (as defined below), Executive shall serve
as Chief Strategic Officer
of Employer and its subsidiary, Acies, Inc., and in such other position or
capacity for Employer and/or its affiliates and subsidiaries as Employer may
request, and shall have such responsibilities, duties and authority that are
customary for the positions of Chief Strategic Officer, subject at
all times to the control and direction of the Board of Directors of Employer
(the "Employer
Board") and the Board of Directors of Acies, Inc. (the "Acies,
Inc. Board," and together with the Employer Board, the "Boards")
and shall perform such services as customarily are provided by the Chief Strategic Officer of a
corporation and such other services consistent with his positions, as shall be
assigned to him from time to time by the Boards. During the Term, Employer shall
take reasonable and lawful actions to cause Executive to be re-nominated to
serve on the Boards. During the Term, Executive shall (A) report to the Boards,
(B) serve Employer and its affiliates and subsidiaries faithfully and to the
best of Executive's ability, and (C) except during any period of illness or
incapacity or vacation to which he is entitled, devote Executive's business
time, attention, skill and efforts to the business and affairs of Employer and
its affiliates and subsidiaries and the promotion of their
interests.
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Executive
shall perform his duties in a diligent manner; and shall observe and comply with
all laws, customs, standards of business ethics and honest business practices,
and policies and procedures of Employer and its affiliates and subsidiaries in
place from time to time. Executive's principal base of operation for the
performance of Executive's duties under this Agreement shall be in Boston, Massachusetts; provided,
however, that Executive shall perform such duties and responsibilities at such
other places as shall from time to time be reasonably necessary to fulfill
Executive's obligations under this Agreement in the discretion of
Employer.
Furthermore,
Executive shall not be precluded from serving on the Board of Directors of
and/or performing services for Prime Portfolios, LLC, SOL Enterprises, LLC or such other
entities, which entities the Employer acknowledges currently provide
services in competition with the Employer (the "Excluded
Businesses").
ARTICLE
II
TERM
2.01
Term of Employment. Executive's employment under this Agreement shall commence
on March 1, 2010 (the
"Commencement
Date") and, subject to earlier termination pursuant to Article IV hereof,
shall continue until February 28,
2013 (the "Term");
provided, however, unless either party hereto gives written notice to the other
at least ninety (90) days prior to the expiration of the then-current Term that
such party elects not to renew this Agreement, the then-current Term shall be
automatically extended for additional one-year periods. The election of Employer
or Executive not to extend the then-current Term, as provided in this Section
2.01, shall not be deemed to be a termination by Employer under Sections 4.01(A)
or 4.01(B) or by Executive for Good Reason (as defined below) under Section
4.01(C), and, in such event, Executive only shall be entitled to the payments
and benefits set forth in Section 4.02(B).
ARTICLE
III
COMPENSATION
AND BENEFITS; EXPENSES
3.01
Compensation and Benefits. For all services rendered by Executive in any
capacity during the Term, including, without limitation, services as an officer,
director or member of any committee of Employer, or any subsidiary, affiliate or
division thereof, Executive shall be compensated as follows (subject, in each
case, to the provisions of Article IV below):
(A)
Base Salary. During the Term, Employer shall pay to Executive a base salary at
the initial rate of $200,000 on an annualized basis
("Base
Salary"). Executive's Base Salary shall be subject to periodic review
(which shall occur at least annually) and such periodic adjustments as the
Employer Board or the Compensation Committee of the Employer Board (the "Compensation
Committee") shall deem appropriate; provided, however, in no event shall
any decrease in Executive's Base Salary be greater than the average percentage
decrease applicable to Employer's and Acies, Inc.'s other employees. The term
"Base
Salary" as used in this Agreement shall refer to Base Salary as may be
adjusted from time to time. Base Salary shall be payable in accordance with the
customary payroll practices of Employer in place from time to time. Executive agrees that Base Salary
shall accrue until Employer has closed on any acquisition or debt or equity
financing transaction (the "Accrued
Salary"). Thereafter
salary payments shall be paid to Executive monthly or pursuant to Employer's
customary payroll practices. Accrued Salary will be paid in equal installments
over a period of six month or sooner as agreed by the
parties.
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(B) Bonuses.
(i)
Incentive Bonus. During the Term, Executive shall be eligible to earn
periodically an incentive bonus (the "Incentive
Bonus"). Qualification for, and the amount of, each Incentive Bonus shall
be related to the achievement of milestones and/or objectives during the
applicable performance period (the "Performance
Period") established by the Employer Board or the Compensation Committee
from time to time. For the fiscal year ending 3/31/11 Executive shall be eligible
to earn quarterly Incentive Bonus payments in the aggregate annual maximum
amount of up to 70% of Executive's annualized Base Salary based upon the
achievement of milestones and objectives established by the Employer Board
relating to revenue growth, net income, and cash flow from operations. The
Incentive Bonus milestones and objectives, amount, manner and method of payment,
and applicable Performance Periods for periods following 3/31/11 shall be established by the
Employer Board or the Compensation Committee in its discretion.
(ii)
Discretionary Bonus. During the Term, Executive also shall be eligible to earn a
discretionary annual bonus, in such amount as may be determined by the Employer
Board or the Compensation Committee ("Discretionary
Bonus"). Qualification for the Discretionary Bonus and the amount of the
Discretionary Bonus, if any, shall be determined by the Employer Board or the
Compensation Committee based upon Employer's and its subsidiaries' financial
performance and both a subjective and objective review of Executive's
achievements throughout the applicable fiscal year which may include, without
limitation, the extent to which Executive (a) achieved his goals and objectives
for the fiscal year, (b) carried out the elements of Employer's and its
subsidiaries' strategic plans, (c) was effective in dealing with challenges, (d)
improved infrastructure, (e) achieved a significantly enhanced distribution
network, (e) succeeded in obtaining financing, and (f) strengthened Employer's
and its subsidiaries' management team, as well as other tangible and intangible
factors in the Employer Board's or the Compensation Committee's discretion. The
Discretionary Bonus, if any, shall be determined as of the end of each full
fiscal year during the Term, payable within three and one-half (3.5) months
after the last day of each such fiscal year. Executive's target Discretionary
Bonus for the fiscal year ending 3/31/11 shall be 30% of Executive's
annualized Base Salary; provided, however, the actual amount of the
Discretionary Bonus, as determined by the Employer Board or the Compensation
Committee, may be less than or greater than the target amount. Executive's
target Discretionary Bonus for periods following 3/31/11 shall be determined by the
Employer Board or the Compensation Committee in its discretion.
To be
eligible to earn any Incentive Bonus (or any portion thereof), Executive must be
employed by Employer on the last day of the applicable Performance Period.
Further, to be eligible to receive any Discretionary Bonus (or portion thereof),
Executive must be employed by Employer both at the time the amount of the
Discretionary Bonus, if any, is determined, and at the time any such
Discretionary Bonus is to be paid.
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(C)
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Equity
Compensation.
|
During
the Term, Executive shall be eligible to receive from time to time additional
stock option grants and/or restricted stock awards in amounts to be approved by
the Employer Board or the Compensation Committee in its sole discretion. The
additional stock option grants and restricted stock awards, if any, will be
based upon a combination of company performance and performance by Executive, as
determined by the Employer Board or the Compensation Committee in its sole
discretion. Such additional stock option grants or restricted stock awards will
be subject to the terms and conditions established within any equity
compensation plan as may be in place from time to time ("Equity
Compensation Plan") and a separate stock option grant or restricted stock
award agreement between Employer and Executive that sets forth the terms and
conditions of the award (e.g., exercise price, expiration date and vesting
schedule of stock options; the restricted period and/or other restrictions such
as performance objectives relating to stock awards). 'With respect to any option
grants or restricted stock awards granted on or after the Commencement Date, the
terms of the Equity Compensation Plan and the applicable stock option or
restricted stock award agreement shall govern Executive's rights and obligations
upon termination.
(D)
Benefits. During the Term, Executive shall be entitled to participate in all
Employer's employee benefit plans and programs (excluding severance plans, if
any) as Employer generally maintains from time to time during the Term for the
benefit of its senior executive-level employees, in each case subject to the
eligibility requirements, enrollment criteria and the other terms and provisions
of such plans or programs. Employer may amend, modify or rescind any employee
benefit plan or program and change employee contribution amounts to benefit
costs without notice in its discretion.
(E)
Vacation, Sick and Personal Days. During the Term, Executive shall be entitled
to paid vacation, sick and personal days in accordance with Employer's policies
with respect to such vacation, sick and personal days in place from time to
time.
3.02 Expenses. Executive shall be
entitled to receive reimbursement from Employer for all reasonable out-of-pocket
expenses incurred by Executive during the Term in connection with the
performance of Executive's duties and obligations under this Agreement,
according to Employer's expense account and reimbursement policies in place from
time to time and provided that Executive shall submit reasonable documentation
with respect to such expenses. During the Term, Employer also shall pay, or
reimburse Executive, for the premium payments (not to exceed $1,350 per month)
for an up to $1,000,000 whole life insurance policy naming Executive's designee
as beneficiary. In addition, during the Term, Employer shall provide Executive
with an automobile allowance in an amount not to exceed $1,500 per month, which
allowance shall be intended to cover the cost of Executive's vehicle and
insurance thereon, as well as all incidental costs incurred by the Executive
related to the operation of the vehicle, including gas, maintenance,
parking/garage and tolls.
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ARTICLE IV
TERMINATION
4.01
Events of Termination. This Agreement and Executive's employment hereunder shall
terminate upon the occurrence of anyone or more of the following
events:
(A)
Termination by Employer for Cause. Employer may, at its option, terminate this
Agreement and Executive's employment hereunder for Cause (as defined herein)
immediately upon giving notice of termination to Executive. As used in this
Agreement, "Cause"
shall mean Executive's (i) conviction of, guilty plea to or confession of guilt
of a felony or act involving moral turpitude, (ii) commission of a fraudulent,
illegal or dishonest act in respect of Employer or any of its affiliates or
subsidiaries, (iii) willful misconduct or gross negligence that reasonably could
be expected to be injurious in the reasonable discretion of Employer to the
business, operations or reputation of Employer or any of its affiliates or
subsidiaries (monetarily or otherwise), (iv) material violation of Employer's
policies or procedures in effect from time to time; provided, however, to the
extent that such violation is subject to cure, Executive shall have an
opportunity to cure such violation within ten (10) days following written notice
of such violation from Employer, (v) after a written warning and a ten (10) day
opportunity to cure such non-performance, material failure or refusal to perform
specific written directives consistent with his duties and responsibilities as
set forth in Section 1.02, (vi) breach or threatened breach of Executive's
obligation under Article V, or (vii) material breach of any other term of this
Agreement; provided, however, to the extent such breach is subject to cure,
Executive shall have an opportunity to cure such breach within ten (10) days
following written notice such breach from Employer.
For
purposes of this Section 4.01(A), no act or failure to act, on the part of
Executive, shall be considered "willful"
unless it is done, or omitted to be done, by Executive in bad faith or without
reasonable belief that Executive's action or omission was in the best interests
of Employer. Any act, or failure to act, based upon authority given pursuant to
a resolution duly adopted by the Employer Board or based upon the advice of
counsel for Employer shall be conclusively presumed to be done, or omitted to be
done, by Executive in good faith and in the best interests of Employer.
Employer's termination of the Executive's employment shall not be deemed to be
for "Cause"
unless and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Employer Board at a meeting of the Employer Board
called and held for such purpose (after reasonable notice is provided to
Executive and Executive is given an opportunity, together with counsel, to be
heard before such Employer Board), finding that, in the good faith opinion of
the Employer Board, Executive is guilty of the conduct described in any of
subparagraphs (i) through (vii) above, and specifying the particulars thereof in
detail. Executive acknowledges and agrees that placing Executive on temporary
paid leave pending a good faith inquiry into whether Executive has engaged in
conduct that could constitute "Cause"
under this Agreement shall not be considered Good Reason.
(B)
Without Cause by Employer. Employer may, at its option, at any time terminate
Executive's employment for no reason or for any reason whatsoever (other than
for Cause or as a result of Executive's death or Disability) by providing thirty
(30) days advance written notice to Executive of its intention to terminate this
Agreement and Executive's employment hereunder. During all or a portion of the
thirty (30) day notice period described in the preceding sentence, Employer may
place Executive on a paid leave of absence, remove Executive from his
position(s) with Employer and/or its affiliates and subsidiaries, and/or require
Executive to provide services relating to the transition of his
duties.
-5-
(C)
Termination By Executive. Executive may terminate this Agreement and Executive's
employment hereunder without Good Reason by giving ninety (90) days prior
written notice to Employer or for Good Reason by giving thirty (30) days prior
written notice of termination to Employer; provided, however, that Employer
reserves the right to accept Executive's notice of termination and to accelerate
such notice and make Executive's termination effective immediately, or on any
other date prior to Executive's intended last day of work as Employer deems
appropriate. For purposes of this Agreement, "Good
Reason" shall mean, in the absence of a written consent of
Executive:
(i)
any action by Employer that results in a material diminution in Executive's
title, position, authority or duties from those contemplated by Section
1.02;
(ii)
the failure of Employer to pay any amounts due to Executive or to fulfill any
other material obligations to Executive under this Agreement;
(iii)
a reduction in Executive's Base Salary, unless such reduction is not greater
than the average percentage reduction in the base salary of Employer's and
Acies, Inc's other employees;
(iv)
a change by Employer in the location at which Executive performs his principal
duties for Employer to a new location that is both (a) outside a radius of 35
miles from Executive's principal residence, and (b) more than 20 miles from the
location at which Executive performs his principal duties for Employer
immediately prior to the date on which such change occurs; or
(v)
any failure by Employer to comply with and satisfy its obligations pursuant to
Section 6.01(B) below.
Notwithstanding
the foregoing, the occurrence of any of the events or actions described in
clauses (i)-(v) (inclusive) above shall not constitute "Good
Reason" if, within thirty (30) days after the giving by Executive of
notice to Employer of the occurrence or existence of an event or circumstance
that would otherwise constitute "Good
Reason", such event of circumstance has been fully corrected and
Executive has been compensated for any actual damages or losses resulting
therefrom.
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(D)
Death. In the event of Executive's death, this Agreement and Executive's
employment hereunder shall automatically terminate on the date of
death.
(E)
Disability. To the extent permitted by law, in the event of Executive's physical
or mental disability that prevents Executive from performing Executive's duties
under this Agreement for a period of at least 90 consecutive days in any
12-month period or 120 non-consecutive days in any 12-month period, Employer may
terminate this Agreement and Executive's employment hereunder upon written
notice to Executive.
(F)
Mutual Agreement. This Agreement and Executive's employment hereunder may be
terminated at any time by the mutual agreement of Employer and
Executive.
(G)
Expiration of Term. This Agreement and Executive's employment hereunder shall
automatically terminate upon the expiration of the Term.
4.02
Employer's Obligations Upon Termination.
(A)
For Cause; Other than For Good Reason; Mutual Agreement. If, during the Term,
Employer shall terminate this Agreement and Executive's employment hereunder for
Cause, Executive shall terminate this Agreement and Executive's employment
hereunder other than for Good Reason, or this Agreement and Executive's
employment hereunder shall terminate by mutual agreement of the parties, then
(i) Employer's sole obligation to Executive under this Agreement or otherwise
shall be to: (a) on the next regular paydate following the date of termination,
(1) pay to Executive any Base Salary earned, but not yet paid to Executive,
prior to the date of such termination, (2) reimburse Executive for any expenses
incurred by Executive through the date of termination, and (3) pay to Executive
any accrued, but unused, vacation days through the date of termination; (b) pay
to Executive any Incentive Bonus payments earned, but not yet paid or payable,
with respect to a Performance Period that ended prior to the date of
termination, which Incentive Bonus payments shall be payable on the date that
such Incentive Bonus payments would otherwise be paid if Executive's employment
had not terminated or, if such Incentive Bonus payments were due and payable on
the date of termination, such Incentive Bonus payments shall be made on the next
regular payroll date following the date of termination; and (c) pay and/or
provide any amounts or benefits that are vested amounts or vested benefits or
that Executive is otherwise entitled to receive under any plan, program, policy
or practice (with the exception of those, if any relating to severance) on the
date of termination, in accordance with such plan, program, policy or practice
(clauses (a), (b) and (c) of this sentence are collectively referred to herein
as the "Accrued
Obligations"), (ii) any granted options pursuant to stock incentive plans
that are unvested as of the date of termination shall be forfeited in such
option grants, and (iii) any granted options pursuant to stock incentive plans
that are vested as of the date of termination shall remain exercisable for a
period of thirty (30) days following the date of termination, but in no event
later than their expiration date prior to the termination, except as otherwise
provided in such option grants.
(B) Expiration of Term. Upon the expiration of the Term, this Agreement
and Executive's employment hereunder shall terminate and Employer's sole
obligation to Executive under this Agreement or otherwise shall be to pay and/or
provide, as applicable, the Accrued Obligations, which Accrued Obligations shall
be paid or provided in manner described in Section 4.02(A) above.
-7-
(C) Death. If, during the Term, this Agreement and Executive's employment
hereunder shall terminate as a result of Executive's death, then (i) Employer's
sole obligation to Executive's estate under this Agreement or otherwise shall be
to: (a) pay and/or provide, as applicable, to Executive's estate the Accrued
Obligations, which Accrued Obligations shall be paid or provided in manner
described in Section 4.02(A) above; and (b) if Executive's eligible dependents
timely elect COBRA coverage, Employer shall waive their healthcare continuation
payments under COBRA for a period of twelve (12) months following the date of
Executive's death, and (ii) all options granted shall be deemed fully vested as
of the date of Executive's death and shall remain exercisable by Executive's
estate until such date(s) provided in the option grants.
(D) Disability. If, during the Term, this Agreement and Executive's
employment hereunder shall terminate as a result of Executive's Disability, then
(i) Employer's sole obligation to Executive under this Agreement or otherwise
shall be to: (a) pay and/or provide, as applicable, to Executive the Accrued
Obligations, which Accrued Obligations shall be paid or provided in manner
described in Section 4.02(A) above; and (b) if Executive timely elects COBRA
coverage and provided that Executive continues to make contributions to such
continuation coverage equal to Executive's employee contribution in effect
immediately preceding the date of termination, Employer shall waive the
remaining portion of Executive's healthcare continuation payments under COBRA
for a period of twelve (12) months following Executive's termination (unless
Executive sooner becomes eligible to obtain alternate healthcare coverage from a
new employer, in which case Employer's obligation to waive the remaining portion
of Executive's healthcare continuation payments under COBRA shall cease), and
(ii) all options granted shall be deemed fully vested as of the date of
Executive's termination and shall remain exercisable by Executive until such
date(s) provided in the option grants.
(E)
Without Cause; for Good Reason
(i)
If, during the Term, Employer terminates this Agreement and Executive's
employment hereunder without Cause or Executive terminates this Agreement and
Executive's employment hereunder for Good Reason, then (a) Employer's sole
obligation to Executive under this Agreement or otherwise shall be to: (1) pay
and/or provide, as applicable, to Executive the Accrued Obligations, which
Accrued Obligations shall be paid or provided in manner described in Section
4.02(A) above; (2) if Executive timely elects COBRA coverage and provided that
Executive continues to make contributions to such continuation coverage equal to
Executive's employee contribution in effect immediately preceding the date of
termination, Employer shall waive the remaining portion of Executive's
healthcare continuation payments under COBRA for a period of twelve (12) months
following Executive's termination (unless Executive sooner becomes eligible to
obtain alternate healthcare coverage from a new employer, in which case
Employer's obligation to waive the remaining portion of Executive's healthcare
continuation payments under COBRA shall cease); and (3) continue to pay to
Executive his Base Salary (at the rate in effect on the date of termination) for
a period equal to the greater of (y) twelve (12) months, or (z) through the end
of the then-current Term, and (b) all options granted shall be deemed fully
vested as of the date of termination and shall remain exercisable by Executive
until such date(s) provided in the option grants.
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(ii)
Notwithstanding the provisions of Section 4.02(E)(i) above, in the event that,
within the period commencing three (3) months prior to the consummation of a
Change in Control (as defined below) and ending on the twenty-four (24) month
anniversary of the consummation a Change in Control, Employer terminates this
Agreement and Executive's employment hereunder without Cause or Executive
terminates this Agreement and Executive's employment hereunder for Good Reason,
then, in lieu of the amounts to be paid and benefits to be provided by Employer
pursuant to Section 4.02(E)(i) above and subject to Section 6.07 below, (a)
Employer's sole obligation to Executive under this Agreement or otherwise shall
be to: (1) pay and/or provide, as applicable, to Executive the Accrued
Obligations, which Accrued Obligations shall be paid or provided in manner
described in Section 4.02 (A) above; (2) if Executive timely elects COBRA
coverage and provided that Executive continues to make contributions to such
continuation coverage equal to Executive's employee contribution in effect
immediately preceding the date of termination, Employer shall waive the
remaining portion of Executive's healthcare continuation payments under COBRA
for a period of eighteen (18) months following Executive's termination (unless
Executive sooner becomes eligible to obtain alternate healthcare coverage from a
new employer, in which case Employer's obligation to waive the remaining portion
of Executive's healthcare continuation payments under COBRA shall cease); and
(3) continue to pay to Executive his Base Salary (at the rate in effect on the
date of termination) for a period equal to thirty (36) months, and (b) all
options granted shall be deemed fully vested as of the date of termination and
shall remain exercisable by Executive until such date(s) provided in the option
grants.
As used
in this Agreement, "Change in
Control" shall mean (a) in any one or series of related or
unrelated transactions (i) the sale of all or substantially all of the assets of
Employer, (ii) the merger or consolidation of Employer with another corporation
or entity in which Employer is not the surviving entity, (iii) the acquisition
by any single person or entity or related persons or entities of more than fifty
percent (50%) of the outstanding and issued voting securities of Employer, or
(iv) a merger or consolidation of Employer with another corporation or entity
that results in the former stockholders of Employer, as they existed immediately
prior to such merger or consolidation, owning in the aggregate less than 50% of
the outstanding voting securities of the surviving or resulting corporation or
entity, or (b) during any period of two consecutive years, when individuals who
at the beginning of such period constitute the Board of Directors of Employer
cease for any reason to constitute at least a majority thereof, unless the
election, or the nomination for election by the stockholders of Employer, of
each new director was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such
period
(iii)
The salary continuation payments contemplated by this Section 4.02(E) shall
commence to be paid on the next regular paydate following the 8th day after
Executive's execution and delivery of the Release (as defined in Section 4.02(F)
below); provided, however, if necessary to comply with the restriction in
Section 409(A)(a)(2)(B) of the Internal Revenue Code of 1986, as amended (the
"Code")
concerning payments to "specified
employees," the salary continuation payments shall commence on the first
regular paydate in the seventh (7th) month following the date of Executive's
termination and the first such payment shall include the cumulative amount of
any payments that would have been paid prior to such date if not for such
restriction, together with interest on such cumulative amount during the period
of such restriction at a rate, per annum, equal to the applicable federal
short-term rate (compounded monthly) in effect under Section 1274(d) of the Code
on the date of termination.
(F)
Release. Except with respect to the Accrued Obligations, Employer shall not be
required to make the payments and provide the benefits specified in this Section
4.02 unless Executive or his estate, as applicable, executes and delivers to
Employer (and does not revoke) a general release in a form reasonably
satisfactory to Employer (the "Release").
The Release shall include, without limitation, a general release of Employer,
its affiliates and subsidiaries and their respective officers, directors,
managers, members, shareholders, partners, employees, agents and other related
parties (the "Releasees")
from all liability (excluding Employer's obligations to pay and provide the
post-termination payments and benefits described in Section 4.02), a covenant
not to sue the Releasees and such other terms deemed reasonably necessary by
Employer for its protection.
(G)
No Mitigation or Offset. Executive shall have no obligation to mitigate the
payments or benefits provided in this Section 4.02 by seeking substitute
employment or otherwise and, except as provided in Sections 4.02(D)(i)(b),
4.02(E)(i)(a)(2), and 4.02(E)(ii)(a)(2), there shall be no offset of the
payments or benefits provided in Section 4.02. In addition, except as provided
in Section 5.07 below, Employer's obligation to make any payment pursuant to, or
otherwise perform its obligation under, this Agreement shall not be affected by
any claim or other right Employer may have against Executive.
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ARTICLE
V
Confidentiality,
Assignment of Inventions,
Non-Competition,
Non-Solicitation and Other Covenants
5.01 Confidentiality. While working or performing services for Employer or
otherwise, Executive may have previously developed or acquired, or may in the
future develop or acquire, knowledge in Executive's work or from directors,
officers, employees, agents or consultants of Employer and its subsidiaries and
affiliates (collectively, the "Company")
or otherwise of Confidential Information relating to the Company, its business,
potential business or that of their respective customers and merchants. "Confidential
Information" includes all trade secrets, know-how, show-how, theories,
technical, operating, financial, and other business information, whether or not
reduced to writing or other medium and whether or not marked or labeled
confidential, proprietary or the like, specifically including, but not limited
to, information regarding source codes, software programs, computer systems,
algorithms, formulae, apparatus, concepts, creations, costs, plans, materials,
enhancements, research, specifications, works of authorship, techniques,
documentation, models and systems, sales and pricing techniques, designs,
inventions, discoveries, products, improvements, modifications, methodology,
forecasts, processes, concepts, records, files, memoranda, reports, plans,
proposals, price lists, customer and merchant lists, customer and merchant
preferences, product development and project procedures. Confidential
Information does not include general skills, experience or information that is
generally available to the public, other than information which has become
generally available as a result of Executive's direct or indirect act or
omission.
With
respect to Confidential Information of the Company and its customers and
merchants:
(A) Executive
has used, and will use, Confidential Information only in the performance of
Executive's duties for Employer. Executive has not used, and will not use,
Confidential Information at any time (during or after Executive's employment
with Employer) for Executive's personal benefit, for the benefit of any other
individual or entity, or in any manner adverse to the interests of the Company
and its customers and merchants;
(B) Executive
has not disclosed, and will not disclose, Confidential Information at any time
(during or after Executive employment with Employer) except to authorized
Employer personnel, unless Employer consents in advance in writing or unless the
Confidential Information indisputably becomes of public knowledge or enters the
public domain (other than through Executive's direct or indirect act or
omission);
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(C) Executive
has safeguarded, and will safeguard, the Confidential Information by all
reasonable steps and has abided, and will abide, by all policies and procedures
of Employer in effect from time to time regarding storage, copying and handling
of documents; and
(D) Executive
will return all materials, substances, models, software, prototypes and the like
containing and/or relating to Confidential Information, together with all other
property of the Company (all of which shall remain the exclusive property of the
Company) and its customers and merchants, to Employer when Executive's
employment relationship with Employer terminates or otherwise on demand and, at
that time Executive will certify to Employer, in writing and under oath, that
Executive has complied with this Agreement. Executive shall not retain any
copies or reproductions of correspondence, memoranda, reports, notebooks,
drawings, photographs, databases, diskettes, or other documents or
electronically stored information of any kind relating in any way to the
business, potential business or affairs of the Company and its customers and
merchants.
5.02
Assignment of Developments. Executive has disclosed, and will disclose, promptly
and fully to Employer and to no one else: (A) all inventions, ideas,
improvements, discoveries, works, modifications, processes, software programs,
works of authorship, documentation, formulae, techniques, designs, methods,
trade secrets, technical specifications and technical data, know-how and
show-how, concepts, expressions or other developments whatsoever or any interest
therein (whether or not patentable or registrable under copyright, trademark or
similar statutes or subject to analogous protection) made, authored, devised,
developed, discovered, reduced to practice, conceived or otherwise obtained by
Executive ("Developments"),
solely or jointly with others, during the course of Executive's employment with
Employer (whether prior to of after the Commencement Date) that (i) are related
to the business of the Company or any of the products or services being
researched, developed, distributed, manufactured or sold by the Company or which
may be used in relation therewith or (ii) result from tasks assigned to
Executive by the Company; (B) any Development which is related to the business
of the Company and in which Executive had an assignable interest at the time of
Executive's first employment by Employer; or (C) any Development made using the
time, materials or facilities of the Company, even if such Development does not
relate to the business of the Company. The determination as to whether a
Development is related to the business of the Company shall be made solely by an
authorized representative of Employer. Any Development relating to the business
of the Company and disclosed to the Company within one year following the
termination of Executive's employment with Employer shall be presumed to fall
within the provisions of this Section 5.02. The "business
of the Company" as used in this Section 5.02 includes the actual business
currently conducted by the Company, as well as any business in which the Company
proposes to engage at any time during the period of Executive's employment.
Executive agrees that all such Developments listed above and the benefits
thereof are and shall immediately become the sole and absolute property of
Employer from conception, as "works
made for hire" (as that term is used under the U.S. Copyright Act of
1976, as amended) or otherwise. Executive shall have no interest in any
Developments. To the extent that title to any Developments or any materials
comprising or including any Developments does not, by operation of law, vest in
Employer, Executive hereby irrevocably assigns to Employer all of Executive's
right, title and interest, including, without limitation, tangible and
intangible rights such as patent rights, trademarks and copyrights, that
Executive may have or may acquire in and to all such Developments, benefits
and/or rights resulting therefrom, and agrees promptly to execute any further
specific assignments related to such Developments, benefits and/or rights at the
request of Employer. Executive also hereby assigns to Employer, or waives if not
assignable, all of Executive's "moral
rights" in and to all such Developments, and agrees promptly to execute
any further specific assignments or waivers related to moral rights at the
request of Employer.
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Executive
agrees to assist Employer without charge for so long as Executive is an employee
of Employer and for as long thereafter as may be necessary (but at Employer's
expense including reasonable compensation to Executive if Executive is no longer
an employee of Employer): (1) to apply, obtain, register and renew for, and vest
in, Employer's benefit alone (unless Employer otherwise directs), patents,
trademarks, copyrights, mask works, and other protection for such Developments
in all countries, and (2) in any controversy or legal proceeding relating to
Developments. In the event that Employer is unable to secure Executive's
signature after reasonable effort in connection with any patent, trademark,
copyright, mask work or other similar protection relating to a Development,
Executive hereby irrevocably designates and appoints Employer and its duly
authorized officers and agents as Executive's agent and attorney-in-fact, to act
for and on Executive's behalf and stead to execute and file any such application
and to do all other lawfully permitted acts to further the prosecution and
issuance of patents, trademarks, copyrights, mask works or other similar
protection thereon with the same legal force and effect as if executed by
Executive.
5.03
Obligations to Other Persons. Executive is not a party to or otherwise bound by
any non-competition agreements, non-solicitation agreements or other restrictive
covenants with any previous employer or other individual or entity that would
prohibit, limit or conflict with the performance of Executive's duties to
Employer or any of its affiliates or subsidiaries. Executive shall not disclose
to Employer or any of its affiliates or subsidiaries or induce Employer or any
of its affiliates or subsidiaries to use any secret or confidential information
or material belonging to others, including, without limitation, Executive's
former employers, if any.
5.04 Covenant Against Competition and Solicitation.
(A)
Executive acknowledges and understands that, in view of the position that
Executive holds as an executive-level employee of Employer, Executive's
relationship with Employer will afford Executive extensive access to
Confidential Information of the Company. Executive therefore agrees that during
the course of Executive's employment with Employer and for a period of eighteen
(18) months after termination of Executive's employment with Employer (for any
reason or no reason) (collectively, "Restricted
Period"), Executive shall not: (i) anywhere within the United States of
America or any other country in which the Company then conducts or proposes to
conduct business, either directly or indirectly, as an owner, stockholder,
member, partner, joint venturer, officer, director, consultant, independent
contractor, agent or employee, engage in any business or other commercial
activity which is engaged in or is seeking to engage in a "competitive
business." As used in this Agreement, the term "competitive
business" shall mean any individual or enterprise other than the Excluded
Businesses, engaged in or seeking to engage in (a) the business of providing
payment processing solutions to merchants, or (b) the development research,
production, marketing, distribution or sale of any product or service that is
directly competitive with, or that may be purchased in replacement of
substitution of, any product of service that is being produced, marketed,
distributed, sold, or actively developed by Employer or any of its affiliates or
subsidiaries. A product or service shall be deemed to be under "active
development" by Employer, its affiliates or subsidiaries as of a
particular date, if Employer or such affiliate or subsidiary has devoted
material resources to the development thereof and intends to produce, market,
distribute or sell such product or service within the following eighteen (18)
months.
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(B)
Executive further agrees that, during the Restricted Period, Executive shall
not, directly or indirectly, either on Executive's own behalf or on behalf of
any other individual or commercial enterprise: (i) contact, communicate, solicit
or transact any business with or assist any third party in contacting,
communicating, soliciting or transacting any business with (a) any of the
customers or merchants of the Company, (b) any prospective customers or
merchants of the Company being solicited at the time of Executive's termination,
or (c) any individual or entity who or which was within the most recent twelve
(12) month period a customer or merchant of Company, for the purpose of inducing
such customer or merchant or potential customer or merchant to be connected to
or benefit from any competitive business or to terminate its or their business
relationship with the Company; (ii) solicit, induce or assist any third party in
soliciting or inducing any individual or entity who or which is then (or was at
any time within the preceding 12 months) an employee, consultant, independent
contractor or agent of Company) to leave the employment of the Company or cease
performing services for the Company; (iii) hire or engage or assist any third
party in hiring or engaging, any individual or entity that is or was (at any
time within the preceding 12 months) an employee, consultant, independent
contractor or agent of the Company; or (iv) solicit, induce or assist any third
party in soliciting or inducing any other person or entity (including, without
limitation, any third-party service provider or distributor) to terminate its
relationship with the Company or otherwise interfere with such
relationship.
5.05
Non-Disparagement. Executive will not at any time (during or after Executive
employment with Employer) disparage the reputation of Employer, its affiliates
and their respective customers and merchants and its or their respective
officers, directors, agents or employees.
5.06
Cooperation. Executive agrees to cooperate both during and after Executive's
employment with Employer, at Employer's sole cost and expense, with the
investigation by the Company involving the Company or any employee or agent of
the Company.
5.07
Reasonable Restrictions/Damages Inadequate Remedy. Executive acknowledges that
the restrictions contained in this Article V are reasonable and necessary to
protect the legitimate business interests of the Company and that any breach by
Executive of any provision contained in this Article V will result in immediate
irreparable injury to the Company for which a remedy at law would be inadequate.
Executive further acknowledges that the restrictions contained in this Article V
will not prevent Executive from earning a livelihood during the applicable
period of restriction. Accordingly, Executive acknowledges that, in the event of
a breach or threatened breach by Executive of any provisions of this Article V,
Employer and/or its affiliates and subsidiaries shall be entitled to temporary,
preliminary and permanent injunctive or other equitable relief (without being
obligated to post a bond or other collateral) and an equitable accounting of all
earnings, profits and other benefits arising, directly or indirectly, from such
violation, which rights shall be cumulative and in addition to (rather than
instead of) any other rights or remedies to which Employer, its affiliates
and/or its subsidiaries may be entitled at law or in equity. In addition (and
not instead of those rights), Executive further covenants that Executive shall
be responsible for payment of the fees and expenses of Employer's and its
affiliates' and subsidiaries' attorneys and experts, as well as their respective
court costs, pertaining to any suit, arbitration, mediation, action or other
proceeding (including the costs of any investigation related thereto) arising
directly or indirectly out of Executive's violation or threatened violation of
any of the provisions of this Article V. Further, in the event that a court of
competent jurisdiction determines that Executive has breached his obligations
set forth in this Article V in any material respect (other than through the
issuance of an injunction issued without a determination on the merits),
Employer, in addition to pursuing all available remedies under this Agreement,
at law or otherwise, and without limiting its right to pursue the same, shall be
entitled to cease all payments due the Executive under this Agreement as of the
date of such determination.
5.08
Separate Covenants. In the event that any court of competent jurisdiction shall
determine that any one or more of the provisions contained in this Article V
shall be unenforceable in any respect, then such provision shall be deemed
limited and restricted to the extent that the court shall deem the provision to
be enforceable. It is the intention of the parties to this Agreement that the
covenants and restrictions in this Article V be given the broadest
interpretation permitted by law. The invalidity or unenforceability of any
provision of this Article V shall not affect the validity or enforceability of
any other provision hereof. If, in any judicial or arbitration proceedings, a
court of competent jurisdiction or arbitration panel should refuse to enforce
all of the separate covenants and restrictions in this Article V, then such
unenforceable covenants and restrictions shall be eliminated from the provisions
of this Agreement for the purpose of such proceeding to the extent necessary to
permit the remaining separate covenants and restrictions to be enforced in such
proceeding.
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ARTICLE
VI
MISCELLANEOUS
6.01 Benefit of Agreement and Assignment.
(A)
This Agreement shall inure to the benefit of Employer, its affiliates and
subsidiaries and its and their respective successors and assigns (including,
without limitation, the purchaser of all or substantially all of any such
entity's assets) and shall be binding upon Employer and its successors and
assigns. This Agreement also shall inure to the benefit of and be binding upon
Executive and Executive's heirs, administrators, executors and assigns.
Executive may not assign or delegate Executive's duties under this Agreement,
without the prior written consent of Employer.
(B)
Employer will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of Employer to assume expressly in writing and agree to perform
this Agreement in the same manner and to the same extent that Employer would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Employer"
shall mean the Employer as defined in the caption of this Agreement and any
successor to its business and/or assets that assumes and agrees to perform this
Agreement by operation of law or otherwise.
6.02
Indemnification; D&O Insurance. Employer shall indemnify Executive against
all claims arising out of Executive's actions or omissions occurring during
Executive's employment with Employer to the fullest extent provided (A) by
Employer's Certificate of Incorporation and/or Bylaws, (B) under Employer's
Directors and Officers Liability and general insurance policies, and (C) under
the Nevada General Corporation Law, as each may be amended from time to time.
Employer agrees that it will continue to maintain Directors and Officers
Liability and general insurance policies to fund the indemnity described above
in the same amount and to the same extent it maintains such coverage for the
benefit of its other officers and directors.
6.03
Notices. Any notice required or permitted hereunder shall be in writing and
shall be sufficiently given if personally delivered or if sent by telecopier,
overnight delivery service or by registered or certified mail, postage prepaid,
with return receipt requested, addressed in the case of the Company
to:
Acies
Corporation:
132 West
36th Street, 3rd Floor
New York,
New York 10018
Attn:
and in the case of Executive
to:
Steven
Wolberg
234
Arnold Road
Newton,
Massachusetts 02459
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Any party
may notify the other party in writing of the change in address by giving notice
in the manner provided in this Section 6.03. Service of process in connection
with any suit, action or proceeding (whether arbitration or otherwise) may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement.
6.04
Entire Agreement. This Agreement contains the entire agreement of the parties
hereto with respect to the terms and conditions of Executive's employment during
the Term and activities following termination of this Agreement and supersedes
any and all prior agreements and understandings, whether written or oral,
between the parties with respect to the subject matter of this Agreement. This
Agreement may not be changed or modified except by an instrument in writing,
signed by both the Chairman of the Employer Board or the Chairman of the
Compensation Committee and Executive.
6.05
No Attachment. Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect; provided, however, that nothing in this Section 6.04 shall
preclude the assumption of such rights by executors, administrators or other
legal representatives of Executive or his estate and their assigning any rights
hereunder to the person or persons entitled thereto.
6.06
Source of Payment. All payments provided for under this Agreement shall be paid
in cash from the general funds of Employer. Employer shall not be required to
establish a special or separate fund or other segregation of assets to assure
such payments, and, if Employer shall make any investments to aid it in meeting
its obligations hereunder, Executive shall have no right, title or interest
whatever in or to any such investments except as may otherwise be expressly
provided in a separate written instrument relating to such investments. Nothing
contained in this Agreement, and no action taken pursuant to its provisions,
shall create or be construed to create a trust of any kind, or a fiduciary
relationship, between Employer and Executive or any other person. To the extent
that any person acquires a right to receive payments from Employer hereunder,
such right, without prejudice to rights which employees may have, shall be no
greater than the right of an unsecured creditor of Employer.
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6.07
Limitation as to Amounts Payable. In the event that any payment, coverage or
benefit provided under this Agreement would, in the opinion of counsel for
Employer, not be deemed to be deductible in whole or in part in the calculation
of the Federal income tax of Employer, or any other person making such payment
or providing such coverage or benefit, by reason of Section 280G of the Code,
the aggregate payments, coverages or benefits provided under this Agreement
shall be reduced to the "safe
harbor" level under Section 280G so that the entire amount which is paid
to Executive shall be deductible notwithstanding the provisions of Section 280G
of the Code.
6.08
No Waiver. The waiver by other party of a breach of any provision of this
Agreement shall not operate or be construed as a continuing waiver or as a
consent to or waiver of any subsequent breach hereof.
6.09
Headings. The Article and Section headings in this Agreement are for the
convenience of reference only and do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions
hereof.
6.10
Governing Law; Jurisdiction. Any and all actions or controversies arising out of
this Agreement or Executive's employment, including, without limitation, tort
claims, shall be construed and enforced in accordance with the internal laws of
the State of Florida, without regard to the choice of law principles thereof.
Any and all actions arising out of this Agreement or Executive's employment by
Employer or termination therefrom shall be brought and heard in the state and
federal courts of the State of Florida and the parties hereto hereby irrevocably
submit to the exclusive jurisdiction of any such courts. Employer and Executive
hereby agree to waive their respective rights to a trial by jury.
6.11
Validity. The invalidity or enforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other
provision or provisions of this Agreement, which shall remain in full force and
effect.
6.12
Employee Withholdings and Deductions. All payments to Executive hereunder shall
be subject to such withholding and other employee deductions as may be required
by law.
6.13
Counterparts. This Agreement may be executed in one more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
6.14
Agreement to Take Actions. Each party to this Agreement shall execute and
deliver such documents, certificates, agreements and other instruments, and
shall take all other actions, as may be reasonably necessary or desirable in
order to perform his or its obligations under this Agreement.
6.15
Survival. The provisions of Section 4.02, Article V and Article VI shall survive
the termination of this Agreement and Executive's employment by
Employer.
6.16
Legal Counsel. Executive acknowledges and warrants that (A) he has been advised
that Executive's interests may be different from Employer's interests, (B) he
has been afforded a reasonable opportunity to review this Agreement, to
understand its terms and to discuss it with an attorney and/or financial advisor
of his choice and (C) he knowingly and voluntarily entered into this Agreement.
Employer and Executive shall each bear their own costs and expenses in
connection with the negotiation and execution of this Agreement.
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IN WITNESS WHEREOF, Employer
and Executive have duly executed this Agreement as of the date first written
above.
EMPLOYER:
ACIES
CORPORATION
By: /s/ Oleg
Firer
Its:
Chief Executive
Officer
Printed
Name: Oleg
Firer
EXECUTIVE:
/s/ Steven
Wolberg
Steven
Wolberg
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