SECTION 5.06(a)(1)
EMPLOYMENT AGREEMENT
This agreement (the "Agreement") between OFFICIAL PAYMENTS CORPORATION, a
Delaware corporation (the "Company") and wholly-owned subsidiary of Tier
Technologies, Inc., a California Corporation ("Tier"), and ______________ (the
"Employee"), is entered into as of this ___ day of May, 2002. This Agreement
shall become effective only if, and when, the Company consummates the merger
transaction (the "Effective Date") contemplated by the Agreement and Plan of
Merger between the Company and Tier, dated as of May 30, 2002 and otherwise
shall be null and void in its entirety.
AGREEMENT
In consideration of the mutual benefits derived from this Agreement and of
the agreements, covenants and provisions hereof, the parties hereto agree as
follows:
1. AT-WILL EMPLOYMENT. The Company hereby employs Employee in the capacity of
_________. Employee agrees to perform such services as are customary to such
office and as shall from time to time be assigned to him by the Company. The
parties agree that employment at the Company is at will and may be terminated by
either the Company or Employee at any time with or without cause and with or
without notice. Employee acknowledges that Employee has no right to be employed
for a specific term and no right to insist on specific grounds for termination.
Employee acknowledges and agrees that the at will nature of this Agreement
extends to all employment decisions and that any change in the terms and
conditions of employment, including without limitation work assignments,
production standards, job responsibilities, compensation and promotions, shall
be at the Company's sole discretion.
2. COMPENSATION AND BENEFITS
2.1 Base Salary. In consideration of and as compensation for the services
to be performed by the Employee hereunder, the Company shall pay the Employee a
base salary (the "Base Salary") of not less than ____________ per year, payable
semi-monthly in arrears in accordance with the Company's regular payroll
practices. The Company shall review the Employee's Base Salary no less
frequently than annually during the Term and, in its sole discretion, may
increase the amount of the Employee's Base Salary to appropriately reflect the
Employee's performance and any expansion of Employee's responsibilities.
2.2 Bonus. In the Company's sole discretion, Employee may be eligible to
receive additional discretionary bonus compensation of up to $______ per year
based on the Company's achievements and Employee's performance, in each case as
determined by the Company.
2.3 Participation in Benefit Plans. The Employee shall be entitled to
participate in any pension plans, profit-sharing plans and group insurance,
medical, hospitalization, disability and other benefit plans maintained by Tier
from time to time, as such are generally applicable to
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employees of the Tier and to the extent Employee is eligible under the general
provisions thereof.
2.4 Reimbursement of Expenses. The Company shall reimburse the Employee for
all business expenses, including, without limitation, traveling, entertainment
and similar expenses, incurred by the Employee on behalf of the Company if such
expenses are ordinary and necessary business expenses incurred on behalf of the
Company pursuant to the Company's standard expense reimbursement policy. The
Employee shall provide the Company with such itemized accounts, receipts or
documentation for such expenses as are required under the Company's policy
regarding the reimbursement of such expenses.
2.5 Vacation and Personal Leave. The Employee shall accrue ______ days of
paid vacation per year, pro-rated for any partial year of employment, subject to
Company policy. The Employee shall also be entitled to paid personal leave in
accordance with Company policy.
3. TERM AND TERMINATION
3.1 Termination.
(a) Termination for Cause. The Company may terminate Employee's
employment under this Agreement, in its sole discretion, "for cause." Grounds
for the Company to terminate this Agreement "for cause" shall be limited to the
occurrence of any of the following events:
(i) the Employee's failure to substantially perform Employee's
duties with the Company in good faith (provided in the case of illness, injury
or disability that the Company has provided reasonable accommodation under
applicable disabilities laws), after a demand for substantial performance is
delivered to Employee by the Company which identifies, in reasonable detail, the
manner in which the Company believes that the Employee has not substantially
performed Employee's duties in good faith and such Employee has not, in the sole
discretion of the Company, improved the performance of Employee's duties during
a period of fourteen (14) days from such demand for substantial performance;
(ii) the Employee's commission of any act which detrimentally
affects the Company, including, without limitation, an act of dishonesty, fraud,
willful disobedience, gross misconduct or breach of duty;
(iii) the Employee's commission of any act in contravention of
Employee's undertakings contained in Section 4 hereof; or
(iv) the Employee's conviction of a felony or a misdemeanor
involving dishonesty or moral turpitude.
(b) Termination Without Cause. The Company may terminate Employee's
employment under this Agreement without cause or notice at any time.
(c) Effect of Termination.
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(i) Upon the termination of the Employee's employment as a result
of Employee's disability, the Employee shall be entitled to receive for an
additional thirty (30) days after the date of such termination, Employee's Base
Salary in effect at the time of termination and any and all benefits to which
Employee is entitled on the date of such termination under the Company's
pension, life, disability, accident and health and other benefit plans in
accordance with the provisions of such plans.
(ii) Upon termination of the Employee's employment as a result of
Employee's death, the Employee's heirs, devisees, executors or other legal
representatives shall receive for an additional thirty (30) days from the date
of death, Employee's Base Salary in effect at the time of death.
(iii) If the Employee's employment hereunder shall be terminated
by the Company without cause, then the Employee shall be entitled to the
Employee's Base Salary and accrued and unused vacation earned through the date
of termination, subject to standard deductions and withholdings, and upon the
Employee's furnishing to the Company an executed waiver and release of claims,
in the form of which is attached hereto as Exhibit A, the Employee shall also be
entitled to continuation of the Employee's Base Salary in effect at the time of
termination for a period of _____ months, subject to standard deductions and
withholdings.
(iv) If the Employee's employment hereunder shall be terminated
by the Company for cause or by the Employee by resignation, the Company shall
have no further obligation to the Employee under this Agreement other than
accrued Base Salary and other accrued benefits required by law, prorated to the
date of termination.
4. NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY
4.1 Non-Competition. For a period of ____ months after the termination of
Employee's employment, Employee shall not, either individually or as a partner,
joint venturer, consultant, shareholder, member or Representative of another
Person or otherwise, directly or indirectly, participate in, engage in, or have
a financial or management interest in, promote, or assist any other Person in
any business operation or any enterprise if such business operation or
enterprise engages, or would engage, in a Restricted Business in a Restricted
Area; provided, however, that Employee may own up to one percent of the
outstanding equity securities of any Person.
4.2 Non-solicitation. For a period of one year after the termination of
Employee's employment, Employee shall not, directly or indirectly (i) employ or
seek to employ any Person who at the date of such termination, or within the
twelve-month period preceding the date of such termination, was an employee,
contractor or consultant of the Company, or otherwise solicit, encourage, cause
or induce any such employee, contractor or consultant to terminate such
relationship with the Company, or (ii) take any action that would interfere with
the relationship of the Company with its respective clients or vendors.
4.3 Confidential Information.
(a) The Employee acknowledges that the Confidential Information (as
hereinafter defined) of the Company is valuable, special and unique to the
Company; and that the
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Company wishes to protect such Confidential Information by keeping it
confidential for the use and benefit of the Company. Based on the foregoing, the
Employee undertakes:
(i) to keep any and all Confidential Information in trust for the
use and benefit of the Company;
(ii) except as required by the Employee's duties hereunder or as
may be authorized in writing by the Company not at any time to disclose or use,
directly or indirectly, any Confidential Information of the Company;
(iii) to take all reasonable steps necessary, or reasonably
requested by the Company, to ensure that all Confidential Information of the
Company is kept confidential for the use and benefit of the Company; and
(iv) upon termination of Employee's employment with the Company
or at any other time the Company may in writing so request, to promptly deliver
to the Company all materials constituting Confidential Information (including
all copies thereof) that are in Employee's possession or under Employee's
control. Further, the Employee undertakes that, if requested by the Company,
Employee shall return any Confidential Information pursuant to this subsection
and shall not make or retain any copy of or extract from such materials.
4.4 For purposes of this Agreement, "Person" means an individual, a
partnership, a limited liability company, a joint venture, a corporation, a
trust, an unincorporated organization, a division or operating group of any of
the foregoing, a government or any department or agency thereof or any other
entity. "Representative" means any officer, director, principal, agent,
employee, consultant or other representative of a Person. "Restricted Business"
means any business involved in the processing of payments to government entities
or any other business in which Company is actively engage on the date of the
termination of Employee's employment. "Restricted Area" means any country in
which Company conducts a Restricted Business on the date of the termination of
Employee's employment with Company. "Confidential Information" means any and all
information developed by or for the Company of which the Employee gained
knowledge by reason of Employee's employment with the Company or Tier under this
Agreement that is not generally known in the industry in which the Company is or
may become engaged. Confidential Information includes, but is not limited to,
any and all information developed by or for the Company or Tier or customers of
the Company or Tier, concerning plans, marketing and sales methods, materials,
processes, business forms, procedures, devices used by the Company or
contractors or customers with which the Company has dealt during the period of
employment, plans for development of new products, services and expansion into
new areas or markets, internal operations and any trade secrets and proprietary
information of any type owned by the Company together with all written, graphic
and other materials relating to all or any part of the same.
4.5 Remedies.
(a) Injunctive Relief. Employee acknowledges and agrees that the
covenants and obligations contained in Sections 4.1, 4.2 and 4.3 hereof relate
to special, unique and extraordinary matters and that a violation of any of the
terms of said Sections will cause the
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Company irreparable injury for which adequate remedy at law is not available.
Therefore, Employee agrees that the Company shall be entitled to an injunction,
restraining order, or other equitable relief from any court of competent
jurisdiction, restraining the Employee from committing any violation of such
covenants and obligations.
(b) Remedies Cumulative. The Company's rights and remedies in respect
of this Section are cumulative and are in addition to any other rights and
remedies the Company may have at law or in equity.
5. MISCELLANEOUS
5.1 Notices. Any written notice, required or permitted under this
Agreement, shall be deemed sufficiently given if either hand delivered or by fax
(with written confirmation of receipt) or nationally recognized overnight
courier. Written notices must be delivered to the receiving party at its address
or facsimile number on the signature page of this Agreement. The parties may
change the address or facsimile number at which written notices are to be
received in accordance with this Section.
5.2 Arbitration. All parties agree that to the fullest extent permitted by
law, any and all controversies between them, including whether any termination
is with or without cause shall be submitted for resolution to binding
arbitration. This means that all parties agree that arbitration shall be their
exclusive forum for resolving disputes between them. All parties expressly waive
their entitlement, if any, to have controversies between them decided by a court
or jury.
5.3 Prevailing Party. If any dispute arises between the parties hereto
concerning this Agreement or their respective rights, duties and obligations
hereunder, the party prevailing in such proceeding shall be entitled to
reasonable attorney's fees and costs, in addition to any other relief that may
be granted.
5.4 Assignment. The Employee may not assign, transfer or delegate his
rights or obligations hereunder, and any attempt to do so shall be void. This
Agreement shall be binding upon and shall inure to the benefit of the Company
and its successors and assigns.
5.5 Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter hereof, and all other prior
agreements, written or oral, are hereby merged herein and are of no further
force or effect. This Agreement may be modified or amended only by a written
agreement that is signed by the Company and the Employee. No waiver of any
section or provision of this Agreement shall be valid unless such waiver is in
writing and signed by the party against whom enforcement of the waiver is
sought. The waiver by the Company of any section or provision of this Agreement
shall not apply to any subsequent breach of this Agreement. Captions to the
various Sections of this Agreement are for the convenience of the parties only
and shall not affect the meaning or interpretation of this agreement. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but together they shall constitute one and the same instrument.
5.6 Severability. The provisions of this Agreement shall be deemed
severable, and if any part of any provision is held illegal, void or invalid
under applicable law, such provision may
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be changed to the extent reasonably necessary to make the provision, as so
changed, legal valid and binding. If any provision of this Agreement is held
illegal, void or invalid in its entirety, the remaining provisions of this
Agreement shall not in any way be affected or impaired but shall remain binding
in accordance with their terms.
5.7 Continuing Obligations. The provisions contained in Sections 4, 5.2,
5.4 and 5.7 of this Agreement shall continue and survive the termination of this
Agreement.
5.8 Applicable Law. This Agreement and the rights and obligations of the
Company and the Employee hereunder shall be governed by and construed and
enforced under the laws of the __________, without reference to any principles
of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
OFFICIAL PAYMENTS CORPORATION
By:
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Print Name:
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Title:
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[EMPLOYEE]
Address:
Facsimile:
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6.
EXHIBIT A
RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in Section
3.2(d)(iii) of the Employment Agreement dated May __ 2002, to which this form is
attached, I, ________, hereby furnish Tier Technologies, Inc. (the "Company"),
with the following release and waiver (the "Release and Waiver").
I hereby release, and forever discharge the Company, its officers,
directors, agents, employees, stockholders, successors, assigns, affiliates,
parent, subsidiaries, and benefit plans, of and from any and all claims,
liabilities, demands, causes of action, costs, expenses, attorneys' fees,
damages, indemnities and obligations of every kind and nature, in law, equity,
or otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising at any time prior to and including my employment
termination date with respect to any claims, including but not limited to those
claims relating to my employment and the termination of my employment; including
but not limited to, claims pursuant to any federal, state or local law relating
to employment, including, but not limited to, discrimination claims, claims
under any local statute governing discrimination, and the Federal Age
Discrimination in Employment Act of 1967, as amended ("ADEA"), or claims for
wrongful termination, breach of the covenant of good faith, contract claims,
tort claims, and wage or benefit claims, including but not limited to, claims
for salary, bonuses, commissions, stock, stock options, vacation pay, fringe
benefits, severance pay or any form of compensation.
I also acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A general release does not extend
to claims which the creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him must have materially
affected his settlement with the debtor." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of any
jurisdiction of similar effect with respect to any claims I may have against the
Company.
I acknowledge that, among other rights, I am waiving and releasing any
rights I may have under ADEA, that this Release and Waiver is knowing and
voluntary, and that the consideration given for this Release and Waiver is in
addition to anything of value to which I was already entitled as an employee of
the Company. I further acknowledge that I have been advised, as required by the
Older Workers Benefit Protection Act, that: (a) the Release and Waiver granted
herein does not relate to claims which may arise after this Release and Waiver
is executed; (b) I have the right to consult with an attorney prior to executing
this Release and Waiver (although I may choose voluntarily not to do so); and if
I am over 40 years of age upon execution of this Release and Waiver: (c) I have
twenty-one (21) days from the date of termination of my employment with the
Company in which to consider this Release and Waiver (although I may choose
voluntarily to execute this Release and Waiver earlier); (d) I have seven (7)
days following the execution of this Release and Waiver to revoke my consent to
this Release and Waiver; and (e) this Release and Waiver shall not be effective
until the seven (7) day revocation period has expired.
Date: __________________ By:
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Print Name: ____________