Exhibit A
COMDATA PAYMENT SERVICES
EXPRESS CASH STATEMENT OF SERVICES
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(CARDHOLDER AGREEMENT AND DISCLOSURE)
This Comdata Express Cash Cardholder Agreement and funds distribution disclosure
(the "Agreement") covers both your rights and the rights of Comdata Network,
Inc. ("Comdata"), its affiliates and representatives relating to: (a) the
issuance to, and use by, you of Comdata's proprietary Comcheks card (the
"Card"); (b) direct transfers of your payroll payments or other recurring or
periodic payments of an electronic nature to an account established for your
benefit which may be used or accessed by your Card; and (c) Card transactions
(i) at automated teller machines (individually, an "ATM"), (ii) approved
point-of-sale merchant locations ("POS"), (iii) resulting in the issuance of a
Comcheck draft, (iv) long distance services and (v) other approved uses for the
Card.
By accepting and using a Card issued by Comdata or its designee, you agree to
the terms and conditions contained in this Agreement and that such terms and
conditions will apply to your use of the Card.
As used in this Agreement, the words "Cardholder", "you", "your", and "yours"
refers to the persons to whom a Card has been issued pursuant to this Agreement
and the related Funds Distribution Agreement between Comdata and your employer.
The words "we", "us", "our" and "ours" refers to Comdata and, as applicable, its
affiliates and representatives, including First American National Bank,
Nashville, Tennessee or a successor or alternate bank or financial institution
designated by Comdata (the "Bank"). The phrases "business day" means Monday
through Friday, except federal holidays.
Please retain a copy of this Agreement for your records and future reference.
FUNDS DISTRIBUTION AND TRUST AGREEMENT
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1. GENERAL. Comdata's Express Cash Funds Distribution Services (the
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"Service") is a means by which your employer may transfer funds owed to
you, such as wages or expense reimbursements, which funds are then, in
turn, made available for access and use by you by use of the Card. Funds
transferred by your employer to Comdata under the Service will, in turn, be
deposited and held in a non-interest bearing trust account located at the
Bank, as trustee, pursuant to a trust agreement existing between Comdata
and the Bank for the benefit of each Cardholder. Comdata and/or the Bank
will cause funds transfer to be made from funds assigned to each Cardholder
in the Comdata accounts or trust account, be applicable and appropriate, in
accordance with instructions received from you by use of your Card (for
example, withdrawal instructions received from the use of the Cad at an
ATMN or purchase instructions received from a point-of-sale network). By
accepting and/or using the Card, you hereby request and authorize Comdata
and/or the Bank, as applicable, to make such funds transfers from each such
Cardholder's funds in accordance with any such instructions and to pay the
principal amount of any such transactions, including any fee associated
therewith, to the appropriate party or parties.
2. CONSENT TO BE PAID THROUGH THE SERVICE, ACKNOWLEDGEMENTS. (a) Consent to
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Method of Payment. By accepting and/or using the Card, you hereby request
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and authorize your employer to transfer funds due to you through the
Service as described herein and expressly and voluntarily consent to such
payment and funds distribution method.
(b) No interest Paid on Funds. You acknowledge and agree that funds transferred
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to you through the Service will be held in a trust account (which will not
accrue or pay interest for your benefit) at the Bank for your benefit until
used or accessed by you through your use of the Card and that no interest
will be paid on you on such funds. To the extent interest may accrue, if
any, you understand that Comdata or its designee shall be entitle to
receive and keep any such amounts to cover costs associated with the
Service.
(c) Employer Access to Spending Information. You recognize that your employer
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may provide you periodic statements regarding purchases and other activity
with respect to your Card. This Card statement delivery method means that
your employer will have access to information about your use of the Card,
including information such as where purchases have been made by you. You
hereby consent to your employer having access to such information for the
purpose of delivering periodic Card statements to you and waive
confidentiality with respect to such information for this purpose.
3. TRANSACTION LIMITATIONS. Withdrawals or use of funds assigned to your Card
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may only be made from an ATM, POS, issuance of a Comchek draft, use of
certain long distance telecommunications services or other means approved
by Comdata. Withdrawals or use of funds assigned to your Card may not be
made unless there are sufficient, collected funds attributable to your
Card.
4. DEPOSITS; FUNDS AVAILABILITY. Additional deposits assigned to your Card may
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only be made by direct deposit of your pay or other monies (such as expense
reimbursement) from your employer in any amount or by other electronic
transfer as permitted by Comdata in writing. Deposits by check, cash, other
preauthorized transaction or any other manner are not available through the
Service. Any transfers from your employer to your Card will be immediately
available.
5. FEES. Current fees applicable to use of your Card have been provided to you
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on a Fee Schedule. Fees are assessed at the time of the applicable
transaction and may be changed by Comdata or others from time to time upon
written notice to your employer.
6. STATEMENTS; ERROR RESOLUTION.You will receive periodic statements showing
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all Card activity during the statement cycle, including fees or service
charges imposed. If you believe that your statement contains a mistake or
discrepancy, then you must notify us within sixty (60) days of receipt of
the first statement containing a mistake or discrepancy in order to resolve
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the discrepancy. Otherwise, the statement may be deemed correct.
7. CUSTOMER SERVICE. Customer service is available to assist you in obtaining
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Card balance information, lost or stolen card assistance and other matters.
The telephone number for customer service is (800)741-2777. Customer
service representatives are available twenty-four (24) hours a day, seven
(7) days a week.
8. TRANSFERABILITY. Your Card is not transferable. You may not assign, pledge
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or otherwise transfer you interest in funds accessible by the Card without
our prior written consent.
9. RIGHT OF SET-OFF. We have a right of set-off against funds that are
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accessible through use of your Card.
10. WARRANTIES; LIMITATION OF LIABILITY. COMDATA AND THE BANK MAKE NO
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WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES,
PRODUCTS OR EQUIPMENT PROVIDED HERUNDER, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
COMDATA'S SOLE RESPONSIBILITY TO CARDHOLDERS SHALL BE TO MAKE THE SERVICE
AVAILABLE IN ACCORDANCE WITH THE TERMS OF THIS CARDHOLDER AGREEMENT AND
DISCLOSURE. IN NO EVENT SHALL COMDATA OR THE BANK BE LIABLE TO ANY
CARDHOLDER OR ANY OTHER FIRM OR PERSON FOR CONSEQUENTIAL INCIDENTAL,
SPECIAL OR PUNITIVE DAMAGES, EVEN IF COMDATA OR THE BNK HAD PRIOR KNOWLEDGE
OF THE POSSIBILITY OF SAME.
ELECTRONIC FUNDS TRANSFER DISCLOSURE
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1. CARD ISSUANCE AND RESPONSIBILITIES.(a) You will be issued one Card and you
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will select a Personal Identification Number ("PIN") for use with your Card
to access funds distributed to your Card. Upon our acceptance of your
written acceptance of this Agreement, you may use your Card to access or
use such funds.
(b) For security purposes, only you will know your PIN. It is not printed on
the Card, and neither our personal nor your employees have access to it.
The Card and the PIN are not transferable and are provided for your
protection and identification during Card related financial transactions
and other uses of the Card.
(c) You agree that you will; (i) use the Card, PIN and services available
through the Service as instructed; (ii) promptly notify us of any loss or
theft of the Card or disclosure of the PIN; and (iii) accept liability for
misuse of the Card and PIN as described in Section 5 below.
2. CARD USES. By properly using your valid Card and PIN, you may withdraw cash
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at any ATMs bearing the ATM network logo on your Card (i.e., Cirrus) or
other network to which the Card and the Service has access, subject to
applicable limitations. You may also use you Card to purchase goods and
services at POS merchant participating in the POS network(s) to which the
Card has access (i.e., Maestro), subject to applicable limitations.
Further, you can use your Card to purchase a Comchek draft, use long
distance services and obtain other products and services, as may be offered
and authorized by Comdata from time to time.
3. CARD USE LIMITATIONS. There may be a network or ATM owner limitation on the
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dollar amount of cash withdrawals initiated by the use of your Card during
a given time period. This may limit the minimum and maximum amounts that
you may withdraw through use of your Card. The owner of the ATM may also
charge a fee for the transaction, which is in addition to any fees charged
by us. You will be charged by us a fee per transaction, including balance
inquiries, as stated in our then current Fee Schedule. In using your Card,
you agree not to initial a withdrawal, purchase or other transaction which
will exceed the total amount of funds assigned to your Card at that time.
You authorize us or our designee to verify the balance available on your
Card prior to authorizing or completing a transaction.
4. DOCUMENTATION OF TRANSFERS. (a) Transaction Records. You will get a record
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each time you use an ATM or POS; (b) Statements. Periodic Card statements
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will be made available to you which will show information for each
preauthorized transfer as well as other account activity; and (c) Recurring
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Electronic Deposits.
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5. LIABILITIES. (a) Our Liabilities for Failure to Make Transfers. If we do
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not cause the completion of a transfer to or from your account in the
correct amount and manner according to our agreement with your and your
employer, we will be liable for your loses and damages, except as limited
herein. However, there are some exceptions. For example, we will not be
liable under the following circumstances; (i) if through no fault of ours,
you do not have enough money in your account to make the transfer; (ii) if
the ATM where you are making the transfer does not have enough cash; (iii)
if the ATM, POS or other device was not working properly; (iv) if
circumstances beyond our control (such as fire, flood, telecommunications
or computer malfunctions or acts of God) prevent the transfer; (v) if funds
are encumbered through legal process; or (iv) if we receive incomplete or
inaccurate information from governmental or other sources, such as
Automated Clearing Houses.
(b) Your Liability for Unauthorized Transfers. You agree to use the Card, PIN,
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ATMs, POS network and other authorized services or products only for the
purposes outlined in this Agreement. You must tell us immediately if you
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believe your Card has been lost, stolen, or if someone has possibly learned
your PIN. Telephoning us is the best way of keeping your possible losses to
a minimum. You could lose all the money assigned to your Card account. If
you tell us within two (2) business days, you can lose no more than $50 if
someone used your Card without your permission. If you do not tell us
within tow (2) business days after you learn of the loss or theft of your
Card, and we prove we could have stopped someone from using your Card
without your permission if you had told us, you could lose as much as $500.
Further, if your Card statement shows transfers that you did not make, tell
us at once. If you do not tell us within sixty (60) days after the
statement was delivered to you, you may not get back any money you lost
after the 60 days, if we can prove that we could have stopped someone from
taking or using the money if you had told us in time.
If you need to report discrepancies or a lost or stolen card, please call
or write either Comdata or the Bank. Our addresses and telephone numbers
are:
First American National Bank Comdata Network, Inc.
First American Center 5301 Maryland Way
Nashville, TN 37238 Brentwood, TN 37027
(800)741-2777
GENERAL TERMS AND CONDITIONS
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1. CANCELLATION OF AGREEMENT. We reserve the right, in our sole discretion, to
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refuse further funds distributions from your employer to your Card account
and to terminate your Card account and access at any time upon notice to
you. This Agreement may be canceled by either of us at any time by giving
written notice of cancellation. Your cancellation will be effective within
two business days after receipt of any such notice. You will remain
responsible and liable for any transactions initiated prior to the
effective date of the cancellation and any service charges or fees
incurred. Any funds remaining on your Card upon cancellation will be
remitted to you by check or Comcheck draft at the address you provide to us
for such purpose.
2. ENFORCEMENT. If we refer any matter relating to your Card to a lawyer to
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enforce any of the terms of this Agreement, you agree to pay our lawyer's
fees plus court costs, and any other fees or expenses allowed by law in the
event that we are the prevailing party. we can delay enforcing our rights
under this Agreement without losing or waiving them.
3. CHANGES AND MODIFICATIONS. We may amend or change the terms of this
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Agreement and our Fee Schedule at any time by giving [written] notice of
the change and the effective date. We will notify your employer at least 10
days prior to the effective date of any amendment or change in the terms of
this Agreement or the Fee Schedule.
4. GOVERNING LAW; MISCELLANEOUS MATTERS.This Agreement shall be interpreted in
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accordance with the local laws of the State of Tennessee, without regard to
the choice of law rules of such stare. If any of the terms of this
Agreement are determined to be invalid or unenforceable, the remainder of
the Agreement shall survive in full force and effect. This Agreement may be
assigned by us and is binding upon and enforceable against your heirs,
legal representatives or successors.
5. DISCLOSURE OF ACCOUNT INFORMATION. We will keep information about your Card
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account confidential. However, Comdata and/or the Bank will disclose
information to certain parties about your Card activity in the following
situations; (a) to your employee so that Card account statements may be
delivered to you as discussed above; (b) in order to verify the existence
and condition of your account for a third party (such as a credit bureau or
merchant); (c) in order to comply with government agency or court orders;
(d) if you give us written permission to do so; or (e) to lawyers,
accountants, collection agencies, credit bureaus. Financial institutions
and others involved in collection, adjustment, settlement or reporting of
such matters.
Exhibit 10.2.1
REFERRAL AGREEMENT
COMCHEK CASH FUND DISTRIBUTION SERVICE
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THIS AGREEMENT is made and entered into as of the 11th day of November,
1999, by and between Comdata Network, Inc. d/b/a Comdata Corporation, a Maryland
corporation, by and through its Payment Services Division with its principal
offices at 5301 Maryland Way, Brentwood, Tennessee 37027 ("Comdata") and
Pinnacle Business Management with its principal offices at 2963 Gulf To Bay
Blvd, Clearwater, FL 33759 ("Company").
WITNESSETH:
WHEREAS, Comdata has developed, offers and operates a funds distribution
service (the "Service"), which may be used by companies to distribute wages or
salaries to employees, expense reimbursement funds or such other funds to
persons entitled to such funds as may be approved by Comdata, by means of the
Comchek eCash Card (the "Card"), which has access to the CIRRUS ATM Network and
the Maestro POS Debit Network (the "Networks"). The Cards are issued by First
American National Bank ("Issuing Bank"), a Cirrus and Maestro Member; and
NOW THEREFORE, for and in consideration of the premises and the mutual
covenants and promises contained herein, the receipt and sufficiency of which
are hereby acknowledged, Comdata and Company agree as follows:
1. REFERRALS. Comdata hereby grants to Company the right to refer, and
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Company hereby agrees to use reasonable efforts to refer, Prospective
Customers to Comdata, subject to the terms and conditions o this
Agreement. Company shall refer Prospective Customers to Comdata using
Card applications bearing the identification number assigned to
Company by Comdata, which applications shall be sole identification of
the source of the Prospective Customers referred by Company to Comdata
for purposes of determining whether Company is entitled to receive
referral fees pursuant to Section 6.
2. TRAINING. Comdata will provide, and at least one employee of Company
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must attend and complete, an initial training program relating to the
Card and the methods, procedures, and requirements for referring
Prospective Customers to Comdata prescribed by Comdata and Issuing
Bank. Comdata, in its discretion, may provide additional training
programs for attendance by employees of Company.
3. MANUAL. During Comdata's initial training program, Comdata will
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deliver one (1) copy of a manual which sets forth the methods,
procedures, and requirements for referring Prospective Customers to
Comdata prescribed by Comdata and Issuing Bank ("Manual") to Company
for use by its employees during the term of this Agreement. Comdata
may amend the Manual to provide new and revised methods, procedures,
and requirements for referring Prospective Customers to Comdata by
delivery of such new pages, replacement pages, addenda, or revised
copies to Company as Comdata shall determine to be appropriate.
Company must refer Prospective Customers to Comdata in accordance with
methods, procedures, and requirements set forth in the Manual.
4. PROMOTION. Comdata will provide to Company brochures, direct mail
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pieces, customer agreement forms, and other similar materials
pertaining to the Service and the Card for Company's distribution to
Prospective Customers. Company must not advertise or promote the
Service and Card other than by the distribution of such materials and
by telephone conversations and personal meetings with the owners and
employees of Prospective Customers.
5. REFERRAL FEES. Company will be entitled to receive referral fees
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during the term of this Agreement as set forth on Exhibit A, which is
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attached hereto and incorporated herein by this reference, except as
otherwise provided herein. If Company terminates the term of this
Agreement, Company shall not be entitled to receive such referral fees
after the term of this Agreement. Payments of such referral fees will
be made not later than the twenty (20) day of each month for the
previous month's fees.
6. CONFIDENTIAL INFORMATION. All methods, procedures, requirements, and
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other business and technical information disclosed to Company by
Comdata during the term of this Agreement, whether in the Manual or
otherwise, constitute confidential information of Comdata and are
disclosed to Company in confidence. Company must hold such
confidential information in strict confidence, take all reasonable
precautions to prevent the same from reaching third persons, not
disclose the same to third persons without Comdata's prior written
approval, and make no other use of the same except to refer
Prospective Customers to Comdata. Company acknowledges that the
originals and all copies, whether made by Comdata or Company, of the
Manual and all other writings and documents containing such
confidential information are the personal property of Comdata and
agrees to promptly return such originals and copies to Comdata upon
the expiration or termination of the term of this Agreement.
7. RELATIONSHIP OF PARTIES. Company must not represent or hold itself out
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as an agent, legal representative, partner, subsidiary, joint
venturer, or employee of Comdata or Issuing Bank. Company has no right
or power to bind or obligate Comdata or Issuing Bank and must not bind
or obligate Comdata or Issuing Bank in any way, manner, or thing
whatsoever, nor represent that Company has any right to do so. Company
must not use any trademark, service mark, trade name, or other
commercial symbol of Comdata, Issuing Bank, or CIRRUS OR Maestro in
any manner.
8. NETWORK RULES AND REGULATIONS. Comdata and Company each acknowledges
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that this Agreement is subject to and governed by the bylaws, rules,
and regulations of the CIRRUS AND MAESTRO Networks ("Network Rules").
In case of any conflict between the Network Rules and this Agreement,
the Network Rules will control, and this Agreement will be deemed
amended to conform with the Network Rules.
9. TERM OF AGREEMENT. The term of this Agreement shall be for a period of
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one (1) year, commencing as of the date set forth above, unless
terminated sooner as provided elsewhere in this Agreement.
10. NON-ASSIGNMENT. Company must not assign, transfer, or encumber this
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Agreement, or any right or interest herein or hereunder, or suffer or
permit any such assignment, transfer, or encumbrance to occur by
operation of law.
11. TERMINATION. The term of this Agreement will terminate automatically
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if (a) either party becomes insolvent, (b) the Networks prohibit
Comdata from providing services related to the Card, (c) Issuing Bank
ceases to be a Network Member, (d) the term of the Agreement between
Comdata and Issuing Bank pertaining to the issue of Cards expires or
terminates, or (e) the Networks prohibit this Agreement.
12. NON-COMPETITION. During the term of this Agreement, Company must not
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engage in, or enter the employment of, or render services to any
person, partnership, association, corporation, or other entity or
enterprise engaged in, any funds distribution service featuring any
cards which are competitive with the Card.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
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understanding of the parties hereto with respect to the subject matter
hereof and supersedes all prior negotiations, commitments,
representations, and undertakings of the parties with respect to such
subject matter.
14. AUDITS AND REVIEWS. Comdata and Issuing Bank, and their designees have
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the right to conduct procedural audits and reviews at any time to
assure that Company is in compliance with this Agreement, the Manual,
the Network Rules, and all applicable laws and regulations.
15. WAIVERS. The failure of Comdata to exercise any right, power, or
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option give to it hereunder or to insist upon strict compliance with
the terms hereof will not constitute a waiver of the terms and
conditions of this Agreement with respect to any other subsequent
breach thereof nor a waiver of its right at any time thereafter to
require exact and strict compliance with all the terms and conditions
hereof.
16. APPLICABLE LAW. This Agreement, and the rights and obligations of the
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parties hereto, will be construed under and in accordance with the
local laws of the State of Tennessee without reference to the choice
of law rules of such state.
17. NOTICES. Any notice required to be given hereunder must be given in
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writing by personal delivery, or by certified or registered mail,
return receipt requested, directed to the party at its last know
address.
18. SEVERABILITY. If any provision of this Agreement is declared invalid
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or inoperable by any court or other governmental authority of
competent jurisdiction, such finding will not invalidate the remainder
of this Agreement.
19. MODIFICATION. This Agreement cannot be modified except by a writing
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signed by the parties.
20. PARTIES BOUND. This Agreement will be binding on and inure to the
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benefit of Comdata, including its successors and assigns.
The parties hereunto have duly executed, sealed and delivered this Agreement, in
duplicate, on the applicable day and year which appears below.
COMPANY ______________________________ COMDATA NETWORK, INC.
By: __________________________________ By:____________________________
Title: _______________________________ Title:_________________________
EXHIBIT A
REFERRAL FEES
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The schedule for the referral fees to which the Company is entitled to receive
is as follows:
The referral fee will begin 60 days from the first transaction date of each
account. The referral fee will be paid to customer each month by check. The
referral fee for each account will remain in place for a period of one year from
the initial measurement date. The referral fee will be as follows:
APPLICATION GROSS FEE REFERRAL FEE
REBATE AMOUNT
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Load Fee $ 1.50 $ .25
Draft Withdrawal $ 1.50 $ .25
ATM Withdrawal $ 1.50 $ .25
ATM Balance Inquiry $ 1.50 $ .25
ATM Transaction Decline $ 1.50 $ .25
Maestro P.O.S. Debit Transaction $ 1.00 $ .10
Answer Plus Phone Service $0.20/min. $ .01
Customer Initials: _________________
Date:_________________________________
STOCK OPTION AGREEMENT
Pinnacle Business Management, Inc. (the "Company" or "Pinnacle") and Gordon &
Associates Strategic Investments, Inc. and/or its designee(s) ("Gordon" or the
"Optionee"), to be effective as of the 19th day of May 1999 (the "Grant Date").
1. PURPOSE. The company and Optionee have entered into a Consulting
Services Agreement dated May 19, 1999 pursuant to which the Company
agreed to issue shares of common stock, $.001 par value and options to
purchase shares of common stock for providing a strategic and valuable
contact for the Company's business. In order to meet its obligations
under the Consulting Services Agreement, the Company desires to enter
into this Stock Option Agreement to more fully evidence the intent of
the Company to issue stock options and to reward Optionee for its
efforts in contributing to the growth of the Company.
2. NATURE OF OPTION. The options are intended a constitute non-qualified
stock option.
3. GRANT OF OPTIONS. The Company grants to Optionee stock options (the
"Options") to purchase up to a total of 35,322,578 shares of the
Company's common stock, par value $.001 per share (the "Common
Stock"), at such time(s) and at such price(s) as set forth on Exhibit
"A" attached to Consulting Services Agreement and any amendments
thereto (hereinafter referred to as Exhibit "A").
4. VESTING AND EXERCISE OF OPTIONS. The Options vest and are immediately
exercisable upon the occurrence of the opening of facilities at
certain Mailbox, Etc. locations and/or the Company achieving certain
closing prices for its Common Stock, as more fully set forth on
Exhibit "A".
5. ADJUSTMENTS IN THE EVENT OF CERTAIN TRANSACTION. In the event of a
stock dividend, stock split or a combination, reverse stock split, or
other change in the Company's capitalization, or other distribution to
common stockholders other than __________ cash dividends, after the
effective date of this Agreement, the Options will be adjusted
accordingly; provided that in no event will the exercise prices be
increased.
6. ADJUSTMENTS IN THE EVENT OF SIGNIFICANT TRANSACTIONS. In the event
Gordon introduces, initiates, or consults to the Company regarding an
event of a consolidation or merger in which the Company is not the
surviving corporation or which results in the acquisition of
substantially all of the Company's outstanding stock, or in the event
of the sale or transfer of substantially all the Company's assets or a
dissolution or liquidation of the Company, or in the event of a
transaction that would effectively take the Company private or result
in the Company de-listing its shares of stock ("Significant
Transaction"), all outstanding options under this Agreement as of the
effective date of the Significant Transaction shall immediately vest
and become exercisable in full and Gordon shall participate in such
Significant Transaction as a stockholder and the Company shall
immediately upon such exercise issue and deliver shares of Common
Stock representing the Options.
7. EXERCISE PRICE.
a. Registered Shares: In the event that the shares of Common Stock
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covered by the Options are registered and free trading at the
time of exercise, the exercise prices of the Options are at such
prices as set forth on Exhibit "A".
b. Unregistered Shares: In the event the shares of Common Stock
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covered by the Options are not registered and free trading, then
the Company will carry a zero interest promissory note for a
period of time sufficient for Gordon to have the opportunity to
sell, in accordance with the restrictive stock sale provisions of
the Consulting Services Agreement, an amount of registered free
trading securities sufficient to pay the exercise price per
Exhibit "A".
c. Significant Transaction: In the event of a Significant
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Transaction, Gordon will pay the exercise price of the lesser of
twenty-five cents ($.25) per share or 30% of the average closing
bid price for the thirty trading days prior to the first day of
which either the company enters into an agreement to execute a
significant Transaction or disseminates any news release,
announcement or other information to the public or the Company's
shareholders related to the Significant Transaction. In the event
of a Significant Transaction the company will carry a zero
interest promissory note for a period of time sufficient for the
events of the Significant Transaction to either provide Optionee
cash and/or the opportunity to sell, in accordance with the
restrictive stock sale provisions of the Consulting Services
Agreement, an amount of registered free trading securities
sufficient to pay the exercise price.
8. TERM OF OPTIONS. This Option Agreement is valid for the same term as
the Consulting Services Agreement.
9. METHOD OF EXERCISING OPTION. The Options are exercisable by delivering
a written notice signed by the Optionee to the Secretary of the
Company, which shall specify the number of shares to be acquired by
virtue of the exercise of the options. The Optionee shall further
deliver the federal tax identification numbers or social security
numbers of the Optionee, the method of payment elected and the amount
thereof, and the exact name in which the shares will be registered.
The Optionee may withdraw notice of exercise of the Option at any time
before close of business on the business day preceding the exercise
date. If a person or persons other than the Optionee exercises the
Option, such other person or persons must sign such notice.
10. DELIVERY OF SHARES. Upon the exercise of any options under this
Agreement, the Company will deliver to Gordon, within ten (10)
business days, the stock certificates evidencing the options
exercised.
11. METHOD OF PAYMENT.
Registered Shares: If the shares are registered and free trading,
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payment of the exercise price for the shares purchased under the
Options shall be delivered to the Secretary of The Company, within ten
(10) business days after receipt of shares covered by the exercised
options, by any combination of the following:
a. Cash;
b. Certified Check;
c. Cashier's Check;
d. Wire Transfer;
e. Shares of Common Stock. Shares of common stock owned by the
Optionee and valued at the closing price of the common stock at
the date that the payment is due by the Optionee and shall
contain all proper endorsements;
f. Broker-Dealer. The Options are exercisable by a broker-dealer
acting on behalf of the Optionee if the broker-dealer receivers
the following from the Optionee or the Company:
i. This Option Agreement; and
ii. Written instructions, signed by the Optionee, requesting the
Company to deliver the Shares to the broker-dealer on behalf
of such Optionee and specifying the account into which such
Shares should be deposited.
Unregistered Shares or Significant Transaction: If the shares are not
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registered and free trading or in the event of a Significant
Transaction the payment of the exercise price will be made in
accordance with the provisions of paragraph 7 (b) or (c) herein and
delivered to the Secretary of the Company. When payment is required it
shall be made in accordance with (a), (b), (c), (d), (e), or (f) of
this paragraph.
12. RIGHT OF EXERCISE. The Options are exercisable at any time during the term
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of this Option Agreement, in whole or in part, to acquire those Shares that
have vested in accordance with this Option Agreement; provided, however,
that this Option may only be exercisable to acquire whole shares of Common
Stock.
13. APPROVAL. If required by applicable law, the Company will obtain board of
director and shareholder approval of this Option Agreement pursuant to
which the options are covered. The resolutions of the Board of Directors
and Shareholders will authorize the Company to reserve for issuance under
the Stock Option Plan 35,322,578 shares of the Company's Common Stock.
14. SECURITIES REPRESENTATION. The Company is obligated to have previously
registered the shares of Common Stock covered by these Options, however, as
of the date of this Agreement the shares of Common Stock have not been
registered but this in no way eliminates or modifies the Company's
obligation to register all shares of common Stock subject to the Options.
However, Optionee understands that until such shares are registered there
are certain restrictions upon the sale and transfer of such shares and Rule
144 and/or Rule 701 under the Securities Act of 1933 may be available in
connection with any resale of shares of Common Stock. Optionee hereby
represents (and promises to so represent upon any exercise under this
Option) that as of the dates any unregistered shares of Common Stock are
hereafter acquired by Optionee, such unregistered shares shall be acquired
for Optionee's own account, for investment and not with a view to be
distribution thereof.
Company represents and warrants that upon the exercise of Options, the
Company will notify Gordon as to the number of shares issued and
outstanding of the Company so that Gordon may comply with applicable
Securities Laws.
15. MISCELLANEOUS
a. Registration Rights. The company shall register the shares of Common
--------------------
Stock represented by the Options with the Securities and Exchange
Commission pursuant to a registration statement (Securities Acts of
1933 and 1934) as soon as practicable following execution of this
Agreement and in any event no later than one (1) month following the
execution date of this Agreement.
b. Notification. The Company shall notify the Optionee that the
------------
registration statement has been filed within five business days after
such filing. The Company shall include in such registration statement
all shares of Common Stock subject to this Option Agreement,
regardless of whether such shares of Common Stock have been the
subject of an exercise or are currently vested.
c. Modification. This Agreement may not be modified, changed or
------------
terminated verbally, and may only be modified, changed or terminated
by an - agreement in writing signed by the party against whom
enforcement of any such change of termination is sought. Any
modification or change or termination of this Agreement shall not
operate to deny or otherwise take away any right of the Optionee to
exercise the Options to the extent of the vested rights set forth
herein.
d. No Minimum Engagement. The company shall not be deemed by the grant of
---------------------
the Options (as distinguished from the separate Consulting Services
Agreement) to be required to engage Optionee for any minimum period,
nor is Gordon required to perform any further duties or functions for
the Company.
e. Shareholder Rights Prior to and after Exercise. Optionee shall not
-------------------------------------------------
have any rights as a shareholder with respect to any shares covered by
the Options until the date of the exercise of each of the Options and
tender of payment pursuant to the terms and conditions for payment
hereunder. No adjustment shall be made for dividends or other rights
related to shares of Common Stock for which the record date is prior
to the date the Option is exercised. The delay or refusal on the part
of the Company in issuing the stock certificates evidencing the shares
of Common Stock subject to an exercise of the Options shall not result
in a limitation, restriction or denial of the Optionee's rights as a
shareholder of the Company subsequent to such exercise.
f. Governing Law. The laws of the State of Texas shall govern the
--------------
validity, construction and performance of this agreement. Any
invalidity of any provision of this Agreement shall not affect the
validity of any provision.
g. Notice. All offers, notices, demands, requests, acceptances or other
------
communications hereunder shall be in writing and shall be deemed to
have been duly made or given if mailed by registered or certified
mail, return receipt requested. Any such notice mailed to the Company
shall be addressed to its principal office, and any notice mailed to
Optionee shall be addressed to Optionee's residence address as it
appears on the signature page hereof or the books and records of the
Company or to such other address as either party may hereafter
designate in writing to the other.
h. Third Party Beneficiaries. This Agreement shall inure to the benefit
--------------------------
of and bind the legal representatives, successors and assigns of the
parties hereto.
i. No Obligation to Exercise. To Optionee shall have no obligation to
----------------------------
exercise any Option granted by this Agreement.
IN WITNESS WHEREOF, THIS AGREEMENT IS EXECUTED EFFECTIVE AS OF THE GRANT DATE.
GORDON & ASSOCIATES STRATEGIC INVESTMENTS, INC.
By: _______________________________________
Denis Gordon, President
Address: 11191 Westheimer #330
Houston, Texas 77024
PINNACLE BUSINESS MANAGEMENT, INC.
By: ________________________________________
Jeff Turino, Chief Executive Officer
By: ________________________________________
M. Bruce Ball, President
Address: 2963 Gulf to Bay Blvd., Suite 265
Clearwater, Florida 33759
Exhibit 10.2.2
COMDATA PAYMENT SERVICES
EXPRESS CASH STATEMENT OF SERVICES
----------------------------------
(CARDHOLDER AGREEMENT AND DISCLOSURE)
This Comdata Express Cash Cardholder Agreement and funds distribution disclosure
(the "Agreement") covers both your rights and the rights of Comdata Network,
Inc. ("Comdata"), its affiliates and representatives relating to: (a) the
issuance to, and use by, you of Comdata's proprietary Comcheks card (the
"Card"); (b) direct transfers of your payroll payments or other recurring or
periodic payments of an electronic nature to an account established for your
benefit which may be used or accessed by your Card; and (c) Card transactions
(i) at automated teller machines (individually, an "ATM"), (ii) approved
point-of-sale merchant locations ("POS"), (iii) resulting in the issuance of a
Comcheck draft, (iv) long distance services and (v) other approved uses for the
Card.
By accepting and using a Card issued by Comdata or its designee, you agree to
the terms and conditions contained in this Agreement and that such terms and
conditions will apply to your use of the Card.
As used in this Agreement, the words "Cardholder", "you", "your", and "yours"
refers to the persons to whom a Card has been issued pursuant to this Agreement
and the related Funds Distribution Agreement between Comdata and your employer.
The words "we", "us", "our" and "ours" refers to Comdata and, as applicable, its
affiliates and representatives, including First American National Bank,
Nashville, Tennessee or a successor or alternate bank or financial institution
designated by Comdata (the "Bank"). The phrases "business day" means Monday
through Friday, except federal holidays.
Please retain a copy of this Agreement for your records and future reference.
FUNDS DISTRIBUTION AND TRUST AGREEMENT
--------------------------------------
1. GENERAL. Comdata's Express Cash Funds Distribution Services (the
--------
"Service") is a means by which your employer may transfer funds owed to
you, such as wages or expense reimbursements, which funds are then, in
turn, made available for access and use by you by use of the Card. Funds
transferred by your employer to Comdata under the Service will, in turn, be
deposited and held in a non-interest bearing trust account located at the
Bank, as trustee, pursuant to a trust agreement existing between Comdata
and the Bank for the benefit of each Cardholder. Comdata and/or the Bank
will cause funds transfer to be made from funds assigned to each Cardholder
in the Comdata accounts or trust account, be applicable and appropriate, in
accordance with instructions received from you by use of your Card (for
example, withdrawal instructions received from the use of the Cad at an
ATMN or purchase instructions received from a point-of-sale network). By
accepting and/or using the Card, you hereby request and authorize Comdata
and/or the Bank, as applicable, to make such funds transfers from each such
Cardholder's funds in accordance with any such instructions and to pay the
principal amount of any such transactions, including any fee associated
therewith, to the appropriate party or parties.
2. CONSENT TO BE PAID THROUGH THE SERVICE, ACKNOWLEDGEMENTS. (a) Consent to
----------------------------------------------------------- -------
Method of Payment. By accepting and/or using the Card, you hereby request
-----------------
and authorize your employer to transfer funds due to you through the
Service as described herein and expressly and voluntarily consent to such
payment and funds distribution method.
(b) No interest Paid on Funds. You acknowledge and agree that funds transferred
--------------------------
to you through the Service will be held in a trust account (which will not
accrue or pay interest for your benefit) at the Bank for your benefit until
used or accessed by you through your use of the Card and that no interest
will be paid on you on such funds. To the extent interest may accrue, if
any, you understand that Comdata or its designee shall be entitle to
receive and keep any such amounts to cover costs associated with the
Service.
(c) Employer Access to Spending Information. You recognize that your employer
-----------------------------------------
may provide you periodic statements regarding purchases and other activity
with respect to your Card. This Card statement delivery method means that
your employer will have access to information about your use of the Card,
including information such as where purchases have been made by you. You
hereby consent to your employer having access to such information for the
purpose of delivering periodic Card statements to you and waive
confidentiality with respect to such information for this purpose.
3. TRANSACTION LIMITATIONS. Withdrawals or use of funds assigned to your Card
-----------------------
may only be made from an ATM, POS, issuance of a Comchek draft, use of
certain long distance telecommunications services or other means approved
by Comdata. Withdrawals or use of funds assigned to your Card may not be
made unless there are sufficient, collected funds attributable to your
Card.
4. DEPOSITS; FUNDS AVAILABILITY. Additional deposits assigned to your Card may
-----------------------------
only be made by direct deposit of your pay or other monies (such as expense
reimbursement) from your employer in any amount or by other electronic
transfer as permitted by Comdata in writing. Deposits by check, cash, other
preauthorized transaction or any other manner are not available through the
Service. Any transfers from your employer to your Card will be immediately
available.
5. FEES. Current fees applicable to use of your Card have been provided to you
-----
on a Fee Schedule. Fees are assessed at the time of the applicable
transaction and may be changed by Comdata or others from time to time upon
written notice to your employer.
6. STATEMENTS; ERROR RESOLUTION.You will receive periodic statements showing
------------------------------
all Card activity during the statement cycle, including fees or service
charges imposed. If you believe that your statement contains a mistake or
discrepancy, then you must notify us within sixty (60) days of receipt of
the first statement containing a mistake or discrepancy in order to resolve
-----
the discrepancy. Otherwise, the statement may be deemed correct.
7. CUSTOMER SERVICE. Customer service is available to assist you in obtaining
-----------------
Card balance information, lost or stolen card assistance and other matters.
The telephone number for customer service is (800)741-2777. Customer
service representatives are available twenty-four (24) hours a day, seven
(7) days a week.
8. TRANSFERABILITY. Your Card is not transferable. You may not assign, pledge
----------------
or otherwise transfer you interest in funds accessible by the Card without
our prior written consent.
9. RIGHT OF SET-OFF. We have a right of set-off against funds that are
-------------------
accessible through use of your Card.
10. WARRANTIES; LIMITATION OF LIABILITY. COMDATA AND THE BANK MAKE NO
---------------------------------------
WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES,
PRODUCTS OR EQUIPMENT PROVIDED HERUNDER, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
COMDATA'S SOLE RESPONSIBILITY TO CARDHOLDERS SHALL BE TO MAKE THE SERVICE
AVAILABLE IN ACCORDANCE WITH THE TERMS OF THIS CARDHOLDER AGREEMENT AND
DISCLOSURE. IN NO EVENT SHALL COMDATA OR THE BANK BE LIABLE TO ANY
CARDHOLDER OR ANY OTHER FIRM OR PERSON FOR CONSEQUENTIAL INCIDENTAL,
SPECIAL OR PUNITIVE DAMAGES, EVEN IF COMDATA OR THE BNK HAD PRIOR KNOWLEDGE
OF THE POSSIBILITY OF SAME.
ELECTRONIC FUNDS TRANSFER DISCLOSURE
------------------------------------
1. CARD ISSUANCE AND RESPONSIBILITIES.(a) You will be issued one Card and you
-----------------------------------
will select a Personal Identification Number ("PIN") for use with your Card
to access funds distributed to your Card. Upon our acceptance of your
written acceptance of this Agreement, you may use your Card to access or
use such funds.
(b) For security purposes, only you will know your PIN. It is not printed on
the Card, and neither our personal nor your employees have access to it.
The Card and the PIN are not transferable and are provided for your
protection and identification during Card related financial transactions
and other uses of the Card.
(c) You agree that you will; (i) use the Card, PIN and services available
through the Service as instructed; (ii) promptly notify us of any loss or
theft of the Card or disclosure of the PIN; and (iii) accept liability for
misuse of the Card and PIN as described in Section 5 below.
2. CARD USES. By properly using your valid Card and PIN, you may withdraw cash
---------
at any ATMs bearing the ATM network logo on your Card (i.e., Cirrus) or
other network to which the Card and the Service has access, subject to
applicable limitations. You may also use you Card to purchase goods and
services at POS merchant participating in the POS network(s) to which the
Card has access (i.e., Maestro), subject to applicable limitations.
Further, you can use your Card to purchase a Comchek draft, use long
distance services and obtain other products and services, as may be offered
and authorized by Comdata from time to time.
3. CARD USE LIMITATIONS. There may be a network or ATM owner limitation on the
--------------------
dollar amount of cash withdrawals initiated by the use of your Card during
a given time period. This may limit the minimum and maximum amounts that
you may withdraw through use of your Card. The owner of the ATM may also
charge a fee for the transaction, which is in addition to any fees charged
by us. You will be charged by us a fee per transaction, including balance
inquiries, as stated in our then current Fee Schedule. In using your Card,
you agree not to initial a withdrawal, purchase or other transaction which
will exceed the total amount of funds assigned to your Card at that time.
You authorize us or our designee to verify the balance available on your
Card prior to authorizing or completing a transaction.
4. DOCUMENTATION OF TRANSFERS. (a) Transaction Records. You will get a record
-------------------------- -------------------
each time you use an ATM or POS; (b) Statements. Periodic Card statements
----------
will be made available to you which will show information for each
preauthorized transfer as well as other account activity; and (c) Recurring
---------
Electronic Deposits.
-------------------
5. LIABILITIES. (a) Our Liabilities for Failure to Make Transfers. If we do
-----------
not cause the completion of a transfer to or from your account in the
correct amount and manner according to our agreement with your and your
employer, we will be liable for your loses and damages, except as limited
herein. However, there are some exceptions. For example, we will not be
liable under the following circumstances; (i) if through no fault of ours,
you do not have enough money in your account to make the transfer; (ii) if
the ATM where you are making the transfer does not have enough cash; (iii)
if the ATM, POS or other device was not working properly; (iv) if
circumstances beyond our control (such as fire, flood, telecommunications
or computer malfunctions or acts of God) prevent the transfer; (v) if funds
are encumbered through legal process; or (iv) if we receive incomplete or
inaccurate information from governmental or other sources, such as
Automated Clearing Houses.
(b) Your Liability for Unauthorized Transfers. You agree to use the Card, PIN,
------------------------------------------
ATMs, POS network and other authorized services or products only for the
purposes outlined in this Agreement. You must tell us immediately if you
-----------
believe your Card has been lost, stolen, or if someone has possibly learned
your PIN. Telephoning us is the best way of keeping your possible losses to
a minimum. You could lose all the money assigned to your Card account. If
you tell us within two (2) business days, you can lose no more than $50 if
someone used your Card without your permission. If you do not tell us
within tow (2) business days after you learn of the loss or theft of your
Card, and we prove we could have stopped someone from using your Card
without your permission if you had told us, you could lose as much as $500.
Further, if your Card statement shows transfers that you did not make, tell
us at once. If you do not tell us within sixty (60) days after the
statement was delivered to you, you may not get back any money you lost
after the 60 days, if we can prove that we could have stopped someone from
taking or using the money if you had told us in time.
If you need to report discrepancies or a lost or stolen card, please call
or write either Comdata or the Bank. Our addresses and telephone numbers
are:
First American National Bank Comdata Network, Inc.
First American Center 5301 Maryland Way
Nashville, TN 37238 Brentwood, TN 37027
(800)741-2777
GENERAL TERMS AND CONDITIONS
----------------------------
1. CANCELLATION OF AGREEMENT. We reserve the right, in our sole discretion, to
-------------------------
refuse further funds distributions from your employer to your Card account
and to terminate your Card account and access at any time upon notice to
you. This Agreement may be canceled by either of us at any time by giving
written notice of cancellation. Your cancellation will be effective within
two business days after receipt of any such notice. You will remain
responsible and liable for any transactions initiated prior to the
effective date of the cancellation and any service charges or fees
incurred. Any funds remaining on your Card upon cancellation will be
remitted to you by check or Comcheck draft at the address you provide to us
for such purpose.
2. ENFORCEMENT. If we refer any matter relating to your Card to a lawyer to
-----------
enforce any of the terms of this Agreement, you agree to pay our lawyer's
fees plus court costs, and any other fees or expenses allowed by law in the
event that we are the prevailing party. we can delay enforcing our rights
under this Agreement without losing or waiving them.
3. CHANGES AND MODIFICATIONS. We may amend or change the terms of this
---------------------------
Agreement and our Fee Schedule at any time by giving [written] notice of
the change and the effective date. We will notify your employer at least 10
days prior to the effective date of any amendment or change in the terms of
this Agreement or the Fee Schedule.
4. GOVERNING LAW; MISCELLANEOUS MATTERS.This Agreement shall be interpreted in
------------------------------------
accordance with the local laws of the State of Tennessee, without regard to
the choice of law rules of such stare. If any of the terms of this
Agreement are determined to be invalid or unenforceable, the remainder of
the Agreement shall survive in full force and effect. This Agreement may be
assigned by us and is binding upon and enforceable against your heirs,
legal representatives or successors.
5. DISCLOSURE OF ACCOUNT INFORMATION. We will keep information about your Card
---------------------------------
account confidential. However, Comdata and/or the Bank will disclose
information to certain parties about your Card activity in the following
situations; (a) to your employee so that Card account statements may be
delivered to you as discussed above; (b) in order to verify the existence
and condition of your account for a third party (such as a credit bureau or
merchant); (c) in order to comply with government agency or court orders;
(d) if you give us written permission to do so; or (e) to lawyers,
accountants, collection agencies, credit bureaus. Financial institutions
and others involved in collection, adjustment, settlement or reporting of
such matters.