EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is entered into December
22, 2004 to be effective as of January 1, 2005 (the "EFFECTIVE DATE") by and
between Craig Potts ("EXECUTIVE"), an individual, and Cash Systems, Inc. (the
"COMPANY"), a Delaware corporation.
RECITALS:
A. Executive has previously been employed as the Company's President
and Chief Executive Officer, as well as a member of the Company's Board of
Directors. Executive desires to resign as President and Chief Executive Officer.
To induce the Company to facilitate the sale of outstanding shares of Company
common stock by Executive and his spouse, Executive is entering into this
Employment Agreement.
AGREEMENTS:
NOW THEREFORE, in consideration of the foregoing Recitals, and for
other good, fair and valuable consideration, receipt and sufficiency of which
are acknowledged, the Company and Executive agree:
ARTICLE I
EMPLOYMENT AND DUTIES
1.1 EMPLOYMENT AND DUTIES. The Company hereby employs Executive on an
approximately one-half time basis to assist the Company with sales and marketing
and product development and to otherwise facilitate the transition of
Executive's former duties and responsibilities as an officer of the Company to
the Company's new Chief Executive Officer and/or Chief Operating Officer (the
"Position"). Executive hereby accepts such employment. Executive shall devote
approximately 20 hours per week to performance of the duties of the Position.
Executive, at all times during employment with the Company, shall comply with
the Company's rules, regulations, policies and directives as the same may be in
effect from time to time.
1.2 PERFORMANCE LOCATION. Executive shall perform the duties of the
Position at the Company's offices in Las Vegas, Nevada and/or, upon the
Company's request, at the business locations of Company's customers and
prospective customers. The Company shall not, without Executive's prior written
agreement, change the location at which the duties of the Position are
performed.
1.3 RESIGNATION. As of the Effective Date, Executive resigns as the
Company's President and Chief Executive Officer.
1.4 TERM OF EMPLOYMENT. Subject to the provisions for termination set
forth in Article III, the term of this Agreement and performance of Executive's
services in the Position shall commence upon the Effective Date and shall
continue for a period of one (1) year thereafter (the "TERM"). Upon the
expiration of the Term or any renewal term, Executive and the Company may agree
in writing to renew the Term for subsequent renewal terms of one (1) year each.
ARTICLE II
COMPENSATION
2.1 COMPENSATION. For all the services rendered by Executive to the
Company in the Position, Executive shall be compensated by the Company in
accordance with this Article II. Such compensation shall be paid in accordance
with the Company's customary payroll practices, and shall be subject to
withholdings required by federal, state and local laws and otherwise with the
consent of Executive.
2.2 BASE COMPENSATION. The Company shall pay Executive a salary (the
"SALARY") at the rate of One Hundred Fifty Thousand Dollars ($150,000) per year
of the Term.
2.3 COMMISSION. During the Term and any renewal term, Executive shall
be eligible to receive commissions and bonuses ("COMMISSIONS") under the
Company's commission and bonus program for 2005 as adopted by the Company's
Board of Directors.
2.4 OTHER BENEFITS. During the Term and any renewal term, Executive
shall continue to receive health, dental, short-term disability and life
insurance benefits. Except for the foregoing, Executive shall not be entitled to
participate in, be covered by or receive benefits under, any vacation,
severance, stock option or other employee benefit plan or policy of the Company.
2.5 REIMBURSEMENT OF AUTHORIZED EXPENSES. During the Term and any
renewal term, the Company will reimburse Executive for all ordinary and
necessary business expenses incurred by Executive at the Company's specific
request. Payment or reimbursement to Executive will be made upon submission by
Executive of vouchers, receipts or other evidence of such expenses in a form
reasonably satisfactory to the Company and in compliance with applicable
requirements of the taxing authorities.
ARTICLE III
TERMINATION OF AGREEMENT
3.1 DEATH OF EXECUTIVE. This Agreement shall automatically terminate if
Executive dies during the Term and any renewal term.
3.2 PERMANENT DISABILITY. The Company may terminate the Term as a
result of Executive's "Permanent Disability," which for purposes of this
Agreement shall mean the inability of Executive, due to illness, accident or any
other physical or mental incapacity, to discharge or perform Executive's normal
and customary day-to-day business and employment obligations and functions on
behalf of the Company for at least thirty (30) business days (calendar days
minus Saturdays, Sundays and national holidays), in the aggregate, within any
given period of ninety (90) consecutive business days.
3.3 TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate the
Term for Cause by written notice to Executive, stating the grounds therefor and
the effective date of such termination. The term "Cause" as used in this
Agreement shall mean:
a. The Executive's demonstrable and repeated failure to perform
the duties of the Position after prior written notice of such
failure(s) and a reasonable opportunity to cure the same.
b. The Executive's breach of a material provision of this
Agreement, not encompassed by the preceding Section, after
prior written notice of such breach and a reasonable
opportunity to cure the same.
c. The conviction of the Executive for a felony or other crime of
moral turpitude by a court of competent jurisdiction.
d. The written confession by the Executive to the commission of a
felony or other crime of moral turpitude.
e. Embezzlement or misappropriation of funds of the Company or
any of its affiliates by the Executive.
f. Demonstrable, material dishonesty in connection with the
Executive's performance of services to the Company.
The items of "Cause" defined in Sections c. through f. shall be deemed
not curable.
3.4 RESIGNATION BY THE EXECUTIVE. The Executive may terminate the Term
upon not less than ninety (90) days prior written notice of resignation to the
Company (the "Executive Required Termination Notice Period").
ARTICLE IV
PAYMENTS IN THE EVENT OF EARLY TERMINATION OF TERM
4.1 DEATH OR PERMANENT DISABILITY OF THE EXECUTIVE. If the Term
terminates as a result of Executive's death or Permanent Disability, as
described in Sections 3.1 and 3.2, the Company will Executive or his estate all
Salary and Commissions earned prior to the date of Executive's death or the
thirtieth day of Executive's Permanent Disability, and Executive shall not be
entitled to any other compensation in connection with such termination.
4.2 TERMINATION FOR CAUSE. If the Term is duly terminated by the
Company for Cause, the Company will pay Executive only Salary and Commissions
earned through the effective date of termination, and Executive will:
a. not be entitled to any other compensation or benefits, except as
expressly required by applicable law;
b. will forfeit any and all benefits arising or accruing after the
effective date of the termination;
c. Stock Options which were not exercisable at the time of termination
shall not thereafter be exercisable; and,
d. Stock Options which were exercisable at the time of termination
shall be exercisable only for the period permitted by the Option Plan.
4.3 TERMINATION WITHOUT CAUSE. If the Company terminates the Term for
no reason or a reason which is not defined as Cause in Section 4.2, the Company
shall pay Executive his Salary through the end of the Term and Commissions
earned prior to such termination, and Executive shall not be entitled to any
other compensation in connection with such termination.
4.4 RESIGNATION BY THE EXECUTIVE. If the Executive terminates the Term
by resigning, the Company shall pay Executive his Salary and Commissions earned
through the end of the Executive Required Termination Notice Period, and
Executive shall not be entitled to any other compensation in connection with
such termination The Company reserves the right to accelerate the effectiveness
of Executive's resignation upon delivery of Executive's notice of resignation or
at any other time during the Executive Required Termination Notice Period, in
which event the Executive Require Notice Period shall be deemed to end upon such
Company notice.
ARTICLE V
NON-DISCLOSURE AND NON-COMPETITION OBLIGATIONS OF EXECUTIVE
5.1 DEFINITIONS.
a. "Confidential Information" shall mean any information, compilation
of information, knowledge and know-how that Executive receives from the
Company or any of its affiliates, becomes aware of, learns of or
develops during the course of his employment which is not generally
known or readily ascertainable by proper means by persons who are not
employees of the Company. It includes, but is not limited to,
information relating to any of the trade secrets, technological
information, products, design or research, information relating to any
of the business affairs of the Company or any of its affiliates,
pricing information, marketing information, selling information,
leasing information, servicing and financing information, compensation
information, forecasts, expansion, customer and client information,
customer lists, manuals, training material, correspondence, research
and development, engineering and other manufacturing processes, and any
other material relating to the business of the Company or any of its
affiliates.
b. "Innovations" shall mean any invention, improvement, discovery or
idea and, whether or not shown or described in writing or reduced to
practice, and works of authorship, whether or not patentable or
copyrightable, which (i) relate directly to the business of the Company
or any of its affiliates, (ii) relate to the actual or demonstrably
anticipated research and development of the Company or any of its
affiliates, (iii) result from any work performed by the Company's
employees, agents, independent contractors, shareholders or officers of
the Company or any of its affiliates, or (iv) are developed or
conceived through the use of Confidential Information or equipment,
supplies or facilities of the Company or any of its affiliates.
c. "Company Product" shall mean any product, product line or service,
including any component thereof or research to develop information
useful in connection with a product or service, that is or is being
designed, developed, manufactured, marketed or sold by the Company or
any of its affiliates or with respect to which the Company or any of
its affiliates has acquired Confidential Information which it intends
to use in the design, development, manufacture, marketing or sale of a
product or service.
d. "Competitive Product" shall mean any product, product line or
service, including any component thereof or research to develop
information useful in connection with a product or service, that is
being designed, developed, manufactured or sold by any person other
than the Company or any of its affiliates and is of the same general
type, performs similar functions, or is used for the same purpose as a
Company Product.
e. "Noncompete Term" shall mean the period (i) during the Term and any
renewal term hereof, plus (ii) for so long as the Company elects to pay
Executive $12,500 per month (net of any required withholdings) by the
fifth day of each month, an additional period of up to two (2) years
after the expiration or earlier termination of the Term or any renewal
term. For the sake of clarification, the Company shall have the option
to continue Executive's noncompete obligations on a monthly basis for
up to two years after the end of the Term and any renewal term by
paying Executive $12,500 per month (net of any required withholdings)
by the fifth day of such month.
5.2 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Executive has received
and may continue to receive Confidential Information. Executive hereby
acknowledges that the Confidential Information, as it may exist from time to
time, is a valuable, special and unique asset of the business of the Company.
Executive shall not, during or after the Term and any renewal term, make any use
of any Confidential Information, or disclose any Confidential Information to any
person, firm, corporation, associate, person or entity for any reason or purpose
whatsoever, other than in connection with the normal performance of Executive's
duties. The obligations of this Section shall not apply to any information that
Executive proves (i) has been disclosed in publicly available sources of
information; (ii) is hereafter disclosed, through no fault of the Executive, in
publicly available sources of information; or (iii) is generally related to and
determinable in the technical fields of interest to the Company, but not
specifically derived from the Company's research and development activities or
results of such activities.
5.3 AGREEMENT NOT TO USE CONFIDENTIAL INFORMATION OF OTHERS. Executive
agrees that he will not, during or after the Term and any renewal term,
wrongfully utilize any proprietary material of any other party in the
Executive's work for the Company, will not knowingly infringe on the patent,
copyright or trademark of any other party in Executive's work for the Company,
and is not bound or restricted in Executive's work for the Company as a result
of any non-competition, confidentiality, non-disclosure or other agreement or
agreements to which Executive is bound.
5.4 ASSIGNMENT OF INNOVATIONS. Executive hereby assigns to the Company
all of Executive's rights, title and interests in and to the Innovations made,
authored or conceived by Executive either individually or jointly with others,
during the Term and any renewal term. Executive shall promptly and fully
disclose and describe Innovations to the Company, and shall acknowledge and
deliver to the Company such written instruments and do such other acts as may be
necessary in the opinion of the Company to preserve the Company's property
rights to the Innovations against forfeiture, abandonment or loss, and to obtain
and maintain letters, patents and copyrights to the Innovations, if applicable,
and to vest the entire right, title and interest thereto in the Company.
The obligations of Section 5.4 shall continue beyond the Term and any
renewal term with respect to Innovations generated, conceived of or reduced to
practice by Executive during the
Term and any renewal term, and shall be binding upon Executive's assigns,
executors, administrators and other legal representatives.
NOTICE REQUIRED BY MINNESOTA LAW: Pursuant to Minnesota Statute Section
181.78, Subdivision 3, Executive is notified the Agreement does not apply to any
Innovation for which no equipment, supplies, facility or trade secret
information of the Company was used, and which was developed entirely on
Executive's own time, and (1) which does not relate (a) directly to the business
of the Company or (b) to the Company's actual or demonstrably anticipated
research or development, or (2) which does not result from any work performed by
Executive for the Company.
5.5 DOCUMENTS AND TANGIBLE ITEMS. All documents and tangible items,
including, but not limited to, manuals, written descriptions and other
documentary evidence or manifestations of Confidential Information and
Innovations, provided to Executive by the Company or any of its affiliates, or
created by Executive for use in connection with his employment with the Company
are the property of the Company. Upon expiration of or the termination of the
Term, Executive shall promptly return all such documents and tangible items
together with all copies, recordings, abstracts, notes, computer diskettes,
computer or computer assisted data storage or reproductions of any kind made
from or about the documents and tangible items or the information they contain.
5.6 TRADE SECRETS ACT. Executive acknowledges that he has been given a
copy of and has reviewed Chapter 325C of Minnesota Statutes, known as the
Minnesota Uniform Trade Secrets Act (the "ACT"), and acknowledges that violation
of the Act or of Executive's agreements, covenants and representations contained
in this Agreement may give rise to a cause of action in favor of the Company
against Executive for general and special damages, exemplary damages, injunctive
relief and attorney's fees.
5.7 OTHER BUSINESS ACTIVITIES. During the Term and any renewal term,
Executive will not, without the express prior written permission of the Board,
engage in any substantial private business activities, whether or not the same
are entered into for profit, outside or separate from Executive's employment
with the Company that would in any way interfere with the fulfillment of his
obligations hereunder.
5.8 COVENANT NOT TO COMPETE. During the Noncompete Term (as defined
above), Executive shall not, directly or indirectly, engage or participate in or
assist, as owner, part owner, partner, manager, director, officer, trustee,
employee, agent, consultant or in any other capacity, any person, business or
other organization designing, developing, manufacturing, licensing, providing,
selling or marketing any product, process, system or service, then in existence
or under development and which is the same or similar to, competes with, or has
a usage allied to, a product, process, system or service offered by the Company
or any of its affiliates. The foregoing restriction shall apply only where any
part of such activities takes place at, or is managed, supported, or
administered from a place of business located within a market in which the
Company maintains an office or actively promotes and markets its products,
processes, systems or services, directly or indirectly, including, without
limitation, the United States, Canada and Mexico. Executive expressly agrees
that the time period and the described scope of this Section are the reasonable
and necessary time and scope needed to protect the legitimate business interests
of the Company.
5.9 COVENANT NOT TO RECRUIT. During the Term and any renewal term, and
for a period of two (2) years after the expiration or earlier termination of the
Term or any renewal term, Executive shall not, directly or indirectly, hire,
attempt to hire, solicit, recruit, employ or retain the services of any
individual, in any capacity, whether as an employee, independent contractor,
consultant, agent or otherwise, of the Company or any customers or prospective
customer of the Company, affiliates of the Company, or any individual providing
services to the Company, whether as an employee, independent contractor,
consultant or agent, as of the date hereof or at any time hereafter.
5.10 REMEDIES. Executive agrees that all of the provisions contained in
Article V are necessary to protect the legitimate business interests of the
Company, and to prevent the unauthorized dissemination and use of Confidential
Information and Innovations to and by competitors of the Company. Executive also
agrees that the Company will be irreparably harmed, and that damages alone
cannot adequately compensate the Company if there is a violation or breach by
Executive of Article V, and that injunctive relief is essential for the
protection of the Company. Executive therefore agrees that the Company shall
have the right, in addition to any other rights and remedies existing in its
favor, to enforce its rights and the obligations under Article V not only by an
action or actions for damages, but also by an action or actions for specific
performance, injunction and/or other equitable relief without posting any bond
or security to enforce or prevent any violations, whether anticipatory,
continuing or future, of the provisions of this Article, including, without
limitation, the extension of the periods hereunder by a period equal to (i) the
length of the violation of Sections 5.7, 5.8 and/or 5.9 plus (ii) the length of
any court proceedings necessary to stop such violation. Executive expressly
waives any right to contest any subpoena to any host of an internet site seeking
to learn the identity of Executive in making any communication which is the
subject of Section 5.10.
5.11 PUBLIC POLICY. It is the desire and intent of the Company and
Executive that the provisions contained in Article V be enforced to the fullest
extent permissible under the laws and public policy applied in each jurisdiction
in which enforcement is sought. Accordingly, if, at the time of enforcement of
Article V, a court shall hold that the duration, scope or area restrictions
stated in this Agreement are unreasonable under circumstances then existing, the
parties agree that the maximum duration, scope or area reasonable under such
circumstances shall be substituted for the stated duration, scope or area.
5.12 INDEPENDENT COVENANTS; SURVIVAL OF COVENANTS. The covenants on the
part of the Executive contained in Article V shall be construed as an agreement
independent of any other provisions of this Agreement, and it is agreed that
relief for any claim or cause of action of Executive against the Company,
whether predicated on this Agreement or otherwise, shall be measured in damages,
and shall not constitute a defense to enforcement by the Company of those
covenants. The provisions contained in Article V, together with the other
covenants, agreements, and obligations of Executive set forth elsewhere in this
Agreement, shall, in all events, survive the expiration of the Term and any
renewal term or the earlier termination of the Term.
ARTICLE VI
EXECUTIVE'S REPRESENTATIONS
6. EXECUTIVE'S REPRESENTATIONS. As a material inducement to the Company
to enter into this Agreement, Executive represents and warrants to the Company
as follows:
a. The information Executive provided to the Company in connection with
this Agreement is true, complete and accurate in all respects and does
not contain any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements contained
therein or in this Agreement not misleading.
b. The execution, delivery and performance by the Executive of this
Agreement will not violate any provision of any indenture, agreement or
other instrument to which the Executive is a party or is bound, or be
in conflict with, result in a breach of or constitute a default under
any such indenture, agreement or other instrument.
c. To Executive's knowledge, the Company's representations and
warranties set forth in the form of Subscription Agreement and Letter
of Investment Intent entered into in connection with Executive's
spouse's sale of shares of Company common stock are correct. Executive
is not aware of any material or potentially material non-public
information regarding the Company or its business or prospects that is
not also known to all other members of the Company's Board of
Directors.
d. Executive shall indemnify and hold the Company harmless from and
against any and all damages, expenses, costs, and liability with
respect to any breach of the foregoing representations and warranties.
ARTICLE VII
MISCELLANEOUS
7.1 NOTICES. All notices given hereunder shall be in writing, and shall
be personally served or sent by registered or certified mail, return receipt
requested. Notices to the Company shall be given to the Company at its corporate
headquarters, which as of the date of this Agreement is 3201 West County Road
42, Suite 106, Burnsville, MN 55306, attention COO. Notices to Executive shall
be addressed to Executive at Executive's residence address as the same appears
on the records of the Company. Notices to the Company or Executive shall be sent
to such other addresses as the Company or Executive shall specify in writing to
the other.
7.2 ENTIRE AGREEMENT. This Agreement is the entire agreement between
the parties concerning the subject matter hereof, and supersedes and replaces
any existing agreement between the parties hereto relating to Executive's
employment, and the Company and Executive hereby acknowledge that there are no
other agreements or understandings of any nature, oral or written, regarding
Executive's employment, apart from this Agreement.
7.3 MODIFICATION OF AGREEMENT. No provision of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
agreed to in writing signed by Executive and the Company.
7.4 WAIVER. No waiver by either party at any time of any breach of or
noncompliance with any condition or provision of this Agreement to be performed
by the other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or any prior or subsequent time. No failure on the
part of the Company to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right hereunder by the Company preclude any other or further exercise
thereof or the exercise of any other right.
7.5 SEVERABILITY. If any part, term or provision of this Agreement is
held unenforceable in the jurisdiction in which either party seeks enforcement
of the Agreement, this Agreement shall be construed as if not containing the
invalid provision or provisions. Invalidity or unenforceability of any portion
or provision of this Agreement shall not affect the validity or enforceability
of the remaining provisions of this Agreement, which shall remain in full force
and effect, and shall govern the rights and obligations of the parties.
7.6 RIGHT TO CONSULT COUNSEL. Executive acknowledges that he has had an
opportunity to consult with independent legal counsel of Executive's choosing
with regard to the terms of this Agreement, or has been advised by the Company
of his right to seek such consultation, and that Executive has entered into this
Agreement pursuant to such independent legal consultation or notwithstanding his
decision not to seek such consultation, as the case may be.
7.7 GOVERNING LAW. This Agreement will be performed by Executive in the
State of Minnesota and shall be governed by and construed and interpreted in
accordance with the laws of the United States of America and the State of
Minnesota, without regard to principles of conflict of laws. All judicial
actions, suits or proceedings brought by or against the Company, the Executive,
or their respective permitted successors and assigns, with respect to their
rights, obligations, liabilities or any other matter under or arising out of or
in connection with this Agreement or for recognition or enforcement of any
judgment rendered in any such proceedings shall be brought in any state or
federal court in the State of Minnesota. By execution and delivery of this
Agreement, the Company and Executive, on behalf of themselves and their
permitted successors and assigns, accept, generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts and irrevocably agree to be
bound by any final judgment rendered thereby in connection with this Agreement
from which no appeal has been taken or is available. The Company and Executive,
on behalf of themselves and their permitted successors and assigns, each hereby
irrevocably waive any objections, including without limitation any objection to
the laying of venue or based on the grounds that the forum is not convenient
(known as the doctrine of "forum non conveniens"), which they may now or
hereafter have to the bringing of any such action or proceeding in any such
jurisdiction. The Company and Executive, on behalf of themselves and their
permitted successors and assigns, acknowledge that final judgment against it in
any action, suit or proceeding referred to in this Section shall be conclusive
and may be enforced in any other jurisdiction by suit on the judgment, a
certified or exemplified copy of which shall be conclusive evidence of the same.
The Company and Executive, on behalf of themselves and their permitted
successors and assigns, waive their right to trial by jury in any action, suit
or proceeding brought with respect to this Agreement.
7.8 ATTORNEY'S FEES, PREVAILING PARTY. Should any action, proceeding or
litigation be commenced between the parties hereto on any matters whatsoever
arising out of, or in any way connected with, this Agreement, the party hereto
prevailing in such litigation shall be entitled, in addition to such other
relief as may be granted, to a reasonable sum as and for its attorney's fees and
costs incurred in such litigation which shall be determined by the court in such
litigation or in a separate action brought for that purpose.
7.9 PERSONAL AGREEMENTS. This Agreement is personal in nature, and
cannot be assigned by Executive. The terms, conditions and covenants in this
Agreement shall be binding upon the heirs and personal representatives of
Executive, and the successors or assigns of the Company.
7.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement.
7.11 HEADINGS; RECITALS; ARTICLES AND SECTIONS. The headings in this
Agreement are inserted for convenience or reference only, and are not a part of
this Agreement. The preliminary Recitals set forth above on the initial page of
this Agreement, and this Agreement shall be construed in light thereof.
References to "Article", "Articles", "Section" or "Sections" shall mean and
refer to the Articles or Sections of this Agreement unless the context expressly
states otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Executive
Employment Agreement to be executed as of the date first written above.
Cash Systems, Inc.
By /s/ Chris Larson
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Chris Larson, Chief Financial Officer
/s/ Craig Potts
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Craig Potts