Employment Agreement - Tier Technologies Inc. and George K. Ross
FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT (the "Agreement") dated as of February 16, 1998, by
and between TIER TECHNOLOGIES, INC., a California corporation (the "Company")
and GEORGE K. ROSS ("Ross").
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. EMPLOYMENT
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1.1. Position. During the Term (as hereinafter defined) of this
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Agreement and subject to the terms and conditions set forth herein, the Company
agrees to employ Ross as its Executive Vice President and Chief Financial
Officer, reporting to the Chief Executive Officer.
1.2. Election to Office. During the Term of this Agreement, the Company
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shall use its best efforts to sustain and continue Ross's position and
designation as Executive Vice President and Chief Financial Officer, subject to
Section 1.3 hereof.
1.3. Fulfillment of Duties. Ross shall devote his full-time efforts to
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the performance of his services hereunder, except during vacation periods and
periods of illness or incapacity, and shall perform his services hereunder
faithfully, diligently and to the best of his skill and ability. If Ross
desires to serve as a director, or member of a committee of, any organization
involving no conflict of interest with the interests of the Company, he shall
first obtain the written consent of the Company's Chief Executive Officer.
1.4. Location. During the Term of this Agreement, Ross will perform his
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duties and services at the Company's principal executive offices in Walnut
Creek, California, or such other location as designated by the Chief Executive
Officer, and Ross agrees to make such business trips to other locations as may
be reasonable and necessary in the performance of his services hereunder.
2. COMPENSATION AND BENEFITS
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2.1. Salary. In consideration of and as compensation for the services
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agreed to be performed by Ross hereunder, the Company agrees to pay Ross during
the Term of this Agreement a base salary (the "Base Salary") of not less than
$230,000 per year, payable semi-monthly in accordance with the Company's regular
payroll practices. The Company may review Ross's Base Salary and other
compensation (including bonuses and incentive compensation) from time to time
during the Term of this Agreement and, at the recommendation of the Compensation
Committee of Board of Directors of the Company (the "Committee"), may increase
his Base Salary or other compensation (including bonuses and incentive
compensation) from time to time. Any increase in Base
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Salary or other compensation (including bonuses and incentive compensation)
shall in no way limit or reduce any other obligation of the Company hereunder.
2.2. Incentive Compensation. During the term of this Agreement, in
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addition to the Base Salary provided in Section 2.1 above, Ross shall be
eligible to receive additional incentive compensation in an amount not to exceed
65% of Ross' then applicable Base Salary, upon achievement of performance or
other goals to be established from time to time by the Committee. Such
incentive compensation may be payable in cash, or in stock, stock options or
other stock based awards, or in any combination of cash and stock based awards,
as shall be determined by the Committee.
2.3. Stock Option. Ross received, within forty-five (45) days
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following execution of this original Agreement of February 1, 1997, an option
(the "Option") to purchase 105,000 shares of Company Class B common stock at an
exercise price which shall be at least the minimum exercise price required by
law, pursuant to an option agreement on the Company's standard form. Subject to
the terms of the Option, one-third of the Option (i.e., 35,000 shares) shall
vest on each of the first, second and third anniversary dates of this original
Agreement of February 1, 1997; provided, however, the Option shall vest as
provided in Section 4.2 or as otherwise set forth in the option agreement.
Notwithstanding anything to the contrary, the Option shall vest in its entirety
immediately upon the sale of substantially all of the assets of the Company,
upon a change in control of the Company or upon the termination, for any reason,
of the services of James L. Bildner as the Company's Chief Executive Officer.
2.4. Participation in Benefit Plans. During the Term of this Agreement,
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Ross shall be entitled to participate in any pension plans, profit-sharing plans
and group insurance, medical, hospitalization, disability and other benefit
plans presently in effect (a partial list of which is attached hereto as Exhibit
A) or hereinafter adopted, which plans are generally applicable to the most
senior executives of the Company and to the extent he is eligible under the
general provisions thereof.
2.5. Reimbursement of Expenses. The Company will reimburse Ross for all
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business expenses, including, without limitation, traveling, entertainment and
similar expenses, incurred by Ross on behalf of the Company during the Term of
this Agreement if such expenses are ordinary and necessary business expenses
incurred on behalf of the Company pursuant to the Company's standard expense
reimbursement policy, provided that Ross 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.
2.6. Vacation and Sick Leave. During the Term of this Agreement, Ross
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will be entitled to three weeks of paid vacation per year. Ross shall also be
entitled to paid sick leave in accordance with the policy applicable to the
other senior executives of the Company.
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2.7. Relocation Loan. Concurrent with the execution of the original
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Agreement on February 1, 1997, the Company offered an unsecured loan to Ross in
the principal amount of $20,000 bearing simple interest at 5.81% per annum,
which amount may be taken all at once or in installments (the "Relocation
Loan"). Repayment of the principal amount of the Relocation Loan and any
interest payable thereon shall be forgiven, as follows: (i) on a pro rata
basis, during Ross's employment with the Company, upon the close of business on
the last business day of each month commencing with the first full month in
which sums are advanced under this Agreement and ending January 31, 2000 and
(ii) in its entirety under the circumstances set forth in Section 4.2 hereof.
In the event that Ross's employment under this Agreement is terminated by Ross
without Good Reason (as defined herein) or for Cause as defined in Section
4.1(iii), Ross shall pay the total of unforgiven principal and interest due
under the Relocation Loan within ninety (90) days of the occurrence of such
event. The Relocation Loan shall be evidenced by a promissory note in form
acceptable to Ross and the Company consistent with the terms of this Agreement.
3. TERM
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3.1. Term. The "Term" of employment under this Agreement means the
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period commencing on the date hereof and expiring on August 1, 2001 or the
earlier termination hereof pursuant to Section 4.1.
4. TERMINATION OF EMPLOYMENT
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4.1. Events of Termination. Upon the occurrence of any of the
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events described in this Section 4.1 during the Term of this Agreement, Ross's
employment hereunder shall terminate and Ross shall be entitled to the benefits
provided in Section 4.2 hereof.
(i) Termination of Ross's employment with the Company due
to Ross's death.
(ii) If, as a result of Ross's incapacity due to physical
or mental illness, injury or disability, Ross shall have been absent from his
duties with the Company on a full-time basis for thirty consecutive days, and
within five days after the receipt of written Notice of Termination (as
hereinafter defined) he shall not have returned to the full-time performance of
his duties, the Company may terminate Ross's employment for "Disability."
"Absent from his duties" means, for the purposes of this Section 4.1( ii ), that
Ross is devoting less than 30 hours per week to his duties under this Agreement.
(iii) The Company shall be entitled to terminate Ross's
employment for Cause. For purposes of this Agreement, "Cause" shall mean:
(A) the willful and continued failure by Ross to
substantially perform his duties with the Company in good faith (other
than any such
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failure resulting from his incapacity due to physical or
mental illness, injury or disability or any such actual or anticipated
failure resulting from his termination for Good Reason (as hereinafter
defined)), after a demand for substantial performance is delivered to
him by the Board of Directors of the Company which identifies, in
reasonable detail, the manner in which the Board of Directors believes
that Ross has not substantially performed his duties in good faith;
(B) the willful engaging by Ross in conduct which causes
material harm to the Company, monetarily or otherwise; or
(C) Ross's conviction of a felony arising from conduct during
the Term of this Agreement.
(iv) Ross shall be entitled to terminate his employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall, without Ross's
express written consent, mean:
(A) the assignment to Ross of any duties substantially
inconsistent with his status as Executive Vice President and Chief
Financial Officer of the Company;
(B) a reduction by the Company in Ross's Base Salary as in
effect on the date hereof;
(C) the failure of the Company to obtain a satisfactory
agreement from any successor (by means of merger, consolidation, sale
of assets or otherwise) to assume and agree to perform this Agreement
as contemplated by Section 5 hereof; or
Ross's right to terminate his employment pursuant to this Subsection
4.1(iv) shall not be affected by his incapacity due to physical or mental
illness, injury or disability. The Company may, solely during the period of
such incapacity, make arrangements for the discharge of any of Ross's duties
hereunder by another officer of the Company, but any such arrangement shall not
affect or in any way diminish Ross's rights hereunder.
(v) Any purported termination by the Company or by Ross shall be
communicated by written Notice of Termination to the other party hereto in
accordance with Sections 4.3 and 8.1 hereof.
4.2. Effect of Termination.
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(i) Upon the termination of Ross's employment as a result of his
Disability, Ross shall be entitled to receive:
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(A) for an additional six months after the date of such
termination, his Base Salary and any and all benefits to which he 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; and (B) a pro rata
portion of the maximum amount of incentive compensation for which Ross
could have become eligible during the year in which such termination
occurs.
(B) the Option shall become immediately accelerated and fully
vested and any restrictions on such Option shall, to the extent
permissible under applicable securities laws, fully lapse; and the
Company shall endeavor to cause any restrictions on such options or
equivalent or similar rights not lapsed by operation of this clause to
so lapse.
(C) forgiveness of the entire outstanding balance of the
Relocation Loan.
(D) the indemnity described in Section 4.2(vi) hereto.
(ii) Upon the termination of Ross's employment as a result of his
death, Ross's heirs, devisees, executors or other legal representatives shall
receive:
(A) for an additional six months from the date of such
termination, his Base Salary and any and all benefits to which he 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; and (B) a pro rata
portion of the maximum amount of incentive compensation for which Ross
could have become eligible during the year in which such termination
occurs.
(B) the Option shall become immediately accelerated and fully
vested and any restrictions on such Option shall, to the extent
permissible under applicable securities laws, fully lapse; and the
Company shall endeavor to cause any restrictions on such options or
equivalent or similar rights not lapsed by operation of this clause to
so lapse.
(C) forgiveness of the entire outstanding balance of the
Relocation Loan.
(D) the indemnity described in Section 4.2(vi) hereto.
(iii) Subject to Section 4.l (vi) hereof if Ross's employment shall
be terminated by the Company for Cause hereto or by Ross without Good Reason,
the
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Company shall pay Ross his full Base Salary and other benefits to which he is
entitled, through the Date of Termination at the rate in effect at the time the
Notice of Termination is given, and the Company shall have no further
obligations to him under this Agreement, with the exception of the indemnity
described in Section 4.2(vi) hereto.
(iv) If Ross's employment by the Company shall be terminated (a) by
the Company other than for Cause, Death or Disability or (b) by Ross for Good
Reason, then Ross shall be entitled to the benefits provided below:
(A) the Company shall pay Ross, not later than the fifth day
following the Date of Termination, a lump sum in cash equal to the sum
of (i) six months of Base Salary, at the rate of Ross's Base Salary on
the Date of Termination, discounted to the then present value at a
discount rate of ten percent per annum applied to each future payment
from the time it would have become payable; and (ii) a pro rata
portion of the maximum amount of incentive compensation for which Ross
could have become eligible during the year in which such termination
occurs;
(B) the Option, together with any other options to purchase
stock (common or otherwise) in the Company granted pursuant to any
plan or otherwise, or any equivalent or similar rights which
appreciate or tend to appreciate as the value of the Company's stock
appreciates, shall become immediately accelerated and fully vested and
any restrictions on such options or equivalent or similar rights
shall, to the extent permissible under applicable securities laws,
fully lapse; and the Company shall endeavor to cause any restrictions
on such options or equivalent or similar rights not lapsed by
operation of this clause to so lapse; and
(C) forgiveness of the entire outstanding balance of the
Relocation Loan.
(D) the indemnity described in Section 4.2(vi) hereto.
(v) Ross shall not be required to mitigate the amount of any payment
provided for in this Section 4.2 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this Section 4.2 be
subject to set-off or reduced by any compensation earned by him as the result of
employment by another employer or by benefits after the Date of Termination, or
otherwise.
(vi) In connection with the termination of Ross's employment for any
reason, the Company will take all necessary action to release Ross from any
obligations under any guarantee by Ross of the Company's corporate debt. Ross's
employment shall not be terminated until such time as he is removed or replaced
with respect to any such guarantee. In addition, after the Date of
Termination, the Company will indemnify Ross for any claims, including all legal
fees and expenses associated therewith, made by any lender with respect to any
such guarantee.
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4.3. Certain Definitions. For the purposes of this Section 4, the
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following terms shall have the meanings set forth in this Section 4.3:
(i) "Notice of Termination" means a written notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of employment under the provision so indicated.
(ii) "Date of Termination" means (i) if employment is terminated
for Disability, five days after Notice of Termination is given (provided that
Ross shall not have returned to the performance of his duties on a full-time
basis during such five-day period), and (ii) if employment is terminated
pursuant to Subsection (iii) or (iv) of Section 4.1 or for any other reason, the
date specified in the Notice of Termination (which, in the case of a termination
pursuant to Subsection (iii) of Section 4.1, shall not be less than ten days
and, in the case of a termination pursuant to Subsection (iv) of Section 4.1,
shall not be more than sixty days, respectively, from the date such Notice of
Termination is given); provided that if within thirty days after any Notice of
Termination is given, the party receiving such Notice of Termination notifies
the other party that a dispute exists concerning the termination (a "Notice of
Dispute"), the Date of Termination shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, by a
binding arbitration award, or by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been perfected); and provided further that the Date of Termination
shall be extended by a Notice of Dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence.
5. SUCCESSORS
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5.1. Assumption by Successors. The Company shall require any successor
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(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Ross to compensation from the Company in the same
amount and on the same terms as he would be entitled hereunder if he terminates
his employment for Good Reason, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business or assets
as aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
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6. NON-COMPETITION AND CONFIDENTIALITY
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6.1. Non-Competition. During Ross's employment by the Company hereunder
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and during the period of one year after the termination of Ross's employment
hereunder by the Company for Cause or by Ross for other than Good Reason:
(i) Ross will not directly compete with the business of the Company
so as to cause the Company to lose material revenue from any client account
which is in existence on the Date of Termination.
(ii) Ross will not directly or indirectly employ or solicit for
employment any person whom he knows to be an employee of the Company or any
subsidiary of the Company.
6.2. Confidential Information.
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(a) Ross agrees and acknowledges that the Confidential Information of
the Company (as hereinafter defined) is valuable, special and unique to its
business; that such business depends on such Confidential Information; and that
the Company wishes to protect such Confidential Information by keeping it
confidential for the use and benefit of the Company. Based on the foregoing,
Ross agrees to undertake the following obligations with respect to such
Confidential Information:
(i) Ross agrees to keep any and all Confidential Information in
trust for the use and benefit of the Company;
(ii) Ross agrees that, except as required by Ross's duties
hereunder or authorized in writing by the Company, he will not at any
time during and for five years after the termination of his employment
with the Company, disclose or use, directly or indirectly, any
Confidential Information of the Company;
(iii) Ross agrees 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) Ross agrees that, upon termination of his employment by the
Company or at any other time the Company may in writing so request, he
will promptly deliver to the Company all materials constituting
Confidential Information (including all copies thereof) that are in
the possession of or under the control of Ross . Ross further agrees
that, if requested by the Company to return any Confidential
Information pursuant to this Subsection 6.2(a) (iv), he will not make
or retain any copy of or extract from such materials.
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(b) For purposes of this Section 6.2, Confidential Information means
any and all information developed by or for the Company of which Ross gained
knowledge by reason of his employment by the Company prior the date hereof or
his employment under this Agreement that is not generally known in any 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 concerning plans, marketing and sales methods, materials, processes,
business forms, procedures, devices used by the Company, contractors and
customers with which the Company has dealt prior to Ross's termination of
employment with the Company, 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.
In the event that Ross is, in the opinion of his legal counsel (which
counsel shall be acceptable to the Company in its reasonable discretion),
required to disclose any Confidential Information to any federal, state, local
or foreign judicial, legislative, administrative or other authority, agency or
instrumentality or is required to disclose such Confidential Information by
reason of his fiduciary duties to the Company or its shareholders or by any
federal, state, local or foreign securities, blue-sky or other similar laws,
rules, regulations or ordinances, then, notwithstanding anything in this Section
6.2 to the contrary, Ross may disclose such Confidential Information to the
extent, and to the persons and entities, so required without any liability
hereunder, without constituting a breach hereunder and without giving rise to a
right of the Company to terminate Ross's employment (for Cause or otherwise)
hereunder. Ross shall notify the Company of any disclosure required to be made
in connection with the preceding sentence as soon as practicable after Ross
becomes aware of such required disclosure.
7. REMEDIES
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7.1. Injunctive Relief. Ross acknowledges and agrees that the covenants
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and obligations contained in Sections 6.1 and 6.2 relate to special, unique and
extraordinary matters and that a violation of any of the terms of such sections
will cause the Company irreparable injury for which adequate remedy at law is
not available. Therefore, Ross agrees that the Company shall be entitled to an
injunction, restraining order, or other equitable relief from any court of
competent jurisdiction, restraining Ross from committing any violation of the
covenants and obligations set forth in Sections 6.1 and 6.2 hereof.
7.2. Remedies Cumulative. The Company's rights and remedies under
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Section 7.1 hereof are cumulative and are in addition to any other rights and
remedies the Company may have at law or in equity.
8. MISCELLANEOUS
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8.1. Notices. Any written notice, required or permitted under this
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Agreement, shall be deemed sufficiently given if either hand delivered or if
sent by fax or overnight
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courier. Written notices must be delivered to the receiving party at his or its
address on the signature page of this Agreement. The parties may change the
address at which written notices are to be received in accordance with this
section.
8.2. Assignment. Neither the Company nor Ross may assign, transfer, or
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delegate its or 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.
8.3. Entire Agreement. This Agreement contains the entire agreement of
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the parties 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 Ross . No waiver of any section or
provision of this Agreement will 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 in 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.
8.4. Severability. The provisions of this Agreement shall be deemed
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severable, and if any part of any provision is held illegal, void, or invalid
under applicable law such provision may 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.
8.5. Continuing Obligations. Sections 4.2, 6.1 and 6.2 of this
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Agreement shall continue and survive the termination of this Agreement.
8.6. Applicable Law. This Agreement and the rights and obligations of
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the Company and Ross thereunder shall be governed by and construed and enforced
under the laws of the State of California applicable to agreements made and to
be performed entirely within such State.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TIER TECHNOLOGIES, INC.
By: /s/ James L. Bildner
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Title: Chairman of the Board,
Chief Executive Officer
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Address: 1350 Treat Blvd., Ste. 250
Walnut Creek, CA 94596
/s/ George K. Ross
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GEORGE K. ROSS
Address: 1350 Treat Blvd., Ste. 250
Walnut Creek, CA 94596
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EXHIBIT A
Benefits for Ross's Employment Agreement
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1. Group Term Insurance
2. Standard medical plan.
3. Standard three weeks vacation.
4. Standard company-approved holidays.
5. Standard long term disability insurance.
6. Standard defined benefit pension plan.
7. D & O liability insurance.
8. 401(k) Plan
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