Employment Agreement - Cardtronics LP and Jack M. Antonini
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EMPLOYMENT AGREEMENT
BETWEEN
CARDTRONICS, LP
AND
JACK M. ANTONINI
JANUARY 20, 2003
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TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS....................................................... 1
1.2 CONSTRUCTION...................................................... 1
ARTICLE 2
EMPLOYMENT AND DUTIES
2.1 EMPLOYMENT; EFFECTIVE DATE........................................ 1
2.2 POSITION.......................................................... 1
2.3 DUTIES AND SERVICES............................................... 1
2.4 DUTY OF LOYALTY................................................... 2
ARTICLE 3
STATED TERM AND TERMINATION OF EMPLOYMENT
3.1 EMPLOYMENT TERM................................................... 2
3.2 THE COMPANY'S RIGHT TO TERMINATE.................................. 2
3.3 EFFECT OF TERMINATION............................................. 2
ARTICLE 4
COMPENSATION, BONUSES AND BENEFITS
4.1 BASE SALARY....................................................... 4
4.2 BONUSES........................................................... 4
4.3 BENEFITS.......................................................... 4
ARTICLE 5
PROTECTION OF INFORMATION
5.1 DISCLOSURE TO AND PROPERTY OF THE COMPANY......................... 5
5.2 DISCLOSURE TO THE EMPLOYEE........................................ 5
5.3 NO UNAUTHORIZED USE OR DISCLOSURE................................. 5
5.4 OWNERSHIP BY COMPANY.............................................. 6
5.5 ASSISTANCE BY THE EMPLOYEE........................................ 6
5.6 REMEDIES.......................................................... 6
ARTICLE 6
STATEMENTS CONCERNING THE COMPANY
6.1 IN GENERAL........................................................ 7
ARTICLE 7
NON-COMPETITION AFTER TERMINATION
7.1 IN GENERAL........................................................ 7
EMPLOYMENT AGREEMENT
TABLE OF CONTENTS
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ARTICLE 8
MISCELLANEOUS
8.1 NOTICES........................................................... 9
8.2 APPLICABLE LAW.................................................... 9
8.3 NO WAIVER......................................................... 9
8.4 SEVERABILITY...................................................... 9
8.5 COUNTERPARTS...................................................... 10
8.6 WITHHOLDING OF TAXES AND OTHER EMPLOYEE DEDUCTIONS................ 10
8.7 HEADINGS.......................................................... 10
8.8 GENDER AND PLURALS................................................ 10
8.9 ASSIGNMENT........................................................ 10
8.10 AMENDMENT; ENTIRE AGREEMENT....................................... 10
8.11 ARBITRATION....................................................... 10
8.12 EMPLOYEE'S REPRESENTATION......................................... 11
8.13 OTHER MATTERS..................................................... 11
EXHIBITS:
A - Definitions
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into by and
between Cardtronics, LP, a Delaware limited partnership (the "COMPANY"), and
Jack M. Antonini (the "EMPLOYEE") effective as of January 20, 2003 (the
"EFFECTIVE DATE").
NOW, THEREFORE, in consideration of the employment by the Company, and
of the compensation and other remuneration to be paid by the Company to the
Employee for such employment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Employee, the
Company and the Employee agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. In addition to terms defined in the body of this
Agreement, capitalized terms used herein shall have the meanings given to them
in Exhibit A.
1.2 CONSTRUCTION. Unless the context requires otherwise: (a)
references to Articles and Sections refer to articles and sections of this
Agreement; (b) references to Exhibits and Schedules are to exhibits and
schedules attached to this Agreement, each of which is made a part of this
Agreement for all purposes; and (c) references to money refer to legal currency
of the United States of America.
ARTICLE 2
EMPLOYMENT AND DUTIES
2.1 EMPLOYMENT; EFFECTIVE DATE. Subject to the terms of this
Agreement, the Company agrees to employ the Employee, and the Employee agrees to
be employed by the Company, beginning as of the Effective Date and continuing
until the last day of the Employment Term.
2.2 POSITION. During the Employment Term, the Employee shall serve
as the President and Chief Executive Officer. The Employee shall also serve as a
member of the board of directors for Cardtronics GP, Inc. (the "General
Partner") and to Cardtronics Group, Inc. (the "Parent Company").
2.3 DUTIES AND SERVICES. The Employee shall perform diligently and
to the best of his abilities the duties and services appertaining to the
Employee's position as provided in Section 2.2, as well as such additional
duties and services appropriate to such position that the Board of Directors of
the Company (the "BOARD") may determine from time to time. The Employee's
employment shall also be subject to the policies maintained and established by
the Board, as the same may be amended from time to time. In furtherance of the
foregoing, the Employee shall devote his full business time, energy and efforts
to the business and affairs of the Company and its Affiliates and shall not
engage, directly or indirectly, in any other business or
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businesses, whether or not similar to that of the Company. The foregoing
notwithstanding, the parties recognize that the Employee may engage in passive
personal investments and other non-competitive business activities that do not
conflict with the business and affairs of the Company or its Affiliates or
interfere with the Employee's performance of his duties hereunder.
2.4 DUTY OF LOYALTY. The Employee acknowledges and agrees that the
Employee owes a fiduciary duty of loyalty, fidelity and allegiance to act at all
times in the best interests of the Company and its Affiliates and to do no act
that would injure the business, interests or reputation of the Company or any of
its Affiliates. In keeping with these duties, the Employee shall make full
disclosure to the Board of all business opportunities pertaining to the
Company's business and shall not appropriate for the Employee's own benefit any
such business opportunities.
ARTICLE 3
STATED TERM AND TERMINATION OF EMPLOYMENT
3.1 EMPLOYMENT TERM. The term of this Agreement shall commence on
the Effective Date and end on January 20, 2006 (the "STATED TERM") unless
earlier terminated in accordance with this Agreement (such period of employment,
as it may be earlier terminated, being referred to herein as the "EMPLOYMENT
TERM").
3.2 THE COMPANY'S RIGHT TO TERMINATE. Notwithstanding the
provisions of Section 3.1, the Employee's employment shall terminate prior to
the expiration of the Stated Term (a) upon the Employee's death or voluntary
resignation or (b) upon termination by the Company for any of the following
reasons:
(i) the Employee's becoming incapacitated by accident,
sickness or other circumstance that renders him Totally Disabled;
(ii) for Cause; or
(iii) for any reason not described in Section 3.2(a) or
Sections 3.2(b)(i) or 3.2(b)(ii) ("WITHOUT CAUSE TERMINATION"), and the
Company shall give Employee 30 days advanced notice of any such Without
Cause Termination; or
(c) upon termination by the Employee for the following
reason:
(i) a Change of Control occurs.
3.3 EFFECT OF TERMINATION.
(a) If the Employee's employment shall
terminate upon the expiration of the Stated Term or
pursuant to Section 3.2(a), 3.2(b)(i) or 3.2(b)(ii),
then, notwithstanding any other provision herein, all
compensation, bonuses and benefits to the Employee
not yet accrued or
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vested hereunder shall terminate contemporaneously
with the expiration of the Employment Term.
(b) If the Employee's employment shall
terminate pursuant to Section 3.2(b)(iii), then the
Employee shall be entitled to receive severance pay
equal to the Base Salary for the lesser of (A) six
months or (B) the number of months remaining in the
Stated Term and all other compensation, bonuses,
benefits and other rights then accrued or vested.
(c) If the Employee's employment shall
terminate pursuant to Section 3.2(c)(i), then the
Employee shall be entitled to receive severance pay
equal to the Base Salary for the lesser of (A) 12
months or (B) the number of months remaining in the
Stated Term and all other compensation, bonuses,
benefits and other rights then accrued or vested.
(d) All payments due under this Section
3.3 shall be due and payable in such installments as
would have been payable if the Employee had not been
so terminated.
(e) In light of the difficulties in
estimating the damages for an early termination of
this Agreement, the Company and the Employee hereby
agree that the payments, if any, to be received by
the Employee pursuant to this Section 3.3 shall be
received by the Employee as liquidated damages, and
the Employee shall not have any right to any other
payment or damages except for such liquidated
damages.
(f) The Company may set off any amounts
of money, goods or services owed by the Employee to
the Company against any final payments made to the
Employee, as appropriate under applicable state law.
(g) In the event the Employment Term is
terminated and the Company is obligated to make
payments pursuant to this Section 3.3, the Employee
upon receipt of such payments hereby releases and
waives any and all claims against the Company, its
subsidiaries, and their respective officers,
directors, employees, agents, or representatives,
stockholders and Affiliates relating to this
Agreement and to his employment and, as a condition
to receiving salary continuation or severance
payments, the Employee will enter into and deliver to
the Company a separate release and waiver in a form
reasonably satisfactory to the Company to further
evidence such release and waiver.
(h) Articles 5, 6, 7 and 8 shall
survive and continue to be binding after the
termination of the Employment Term and/or the breach
or termination of this Agreement.
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ARTICLE 4
COMPENSATION, BONUSES AND BENEFITS
4.1 BASE SALARY. During the Employment Term, the Company shall pay
the Employee a gross base salary of $25,000 per calendar month (the "BASE
SALARY"), which the Company shall pay to the Employee in equal installments in
accordance with the Company's regular payroll practice for management employees.
4.2 BONUSES. In addition to the Base Salary due under Section 4.1,
the Employee will be eligible for a bonus (a "BONUS") in each fiscal year during
the Employment Term in accordance with and pursuant to the Company's
then-current bonus plan ("BONUS PLAN"). The Bonus Plan will be implemented and
administered by the Compensation Committee of the Board, and any bonuses payable
thereunder shall be based upon a number of factors determined and set by the
Compensation Committee in its sole discretion. Such factors may include, but not
be limited to, the achievement by the Company of certain performance objectives
and the operation of the Company within the budgets approved by the Board.
Subject to achieving the performance standards set by the Compensation
Committee, the targeted Bonus payable to the Employee will be 40% of the
Employee's annual Base Salary, but the ultimate Bonus amount paid to the
Employee, if any, will be determined at the sole discretion of the Compensation
Committee. The Bonus, if any, paid to Employee for any partial year, but
excluding calendar year 2003 for which there will be no proration, shall be
prorated for the actual number of days Employee is employed by the Company in
such year.
4.3 BENEFITS.
(a) During the Employment Term, the Employee shall be
eligible for participation in and to receive all benefits under welfare benefit
plans, practices, policies and programs of the Company, including the Company's
medical, disability, and 401K plans as may be in effect from time to time for
other similarly situated employees of the Company. The Employee shall be
entitled to vacations and sick leave in accordance with the Company's prevailing
policy for its executives, with the parties anticipating at the minimum that the
Employee will receive four weeks paid vacation during each one-year period
commencing on the Effective Date and each anniversary thereof.
(b) Contemporaneously with the execution and delivery of
this Agreement, the Parent Company and the Employee have entered into a
Restrictive Stock Agreement pursuant to which the Parent Company has sold to the
Employee eighty thousand (80,000) shares of Common Stock of the Parent Company.
Such Restrictive Stock Agreement (and the Investors Agreement referenced
therein) shall govern Employee's ownership and disposition of said shares.
(c) At the discretion of the Compensation Committee,
Employee may be granted stock options as part of his Bonus. If and when such
stock options are granted, the Company and the Employee will enter into a
Nonstatutory Stock Option Agreement in the form attached hereto as Exhibit "B".
Such Nonstatutory Stock Option Agreement (and the stock option plan referenced
therein) shall govern any options granted to the Employee pursuant to said
agreement.
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ARTICLE 5
PROTECTION OF INFORMATION
5.1 DISCLOSURE TO AND PROPERTY OF THE COMPANY. All information,
designs, ideas, concepts, improvements, product developments, discoveries and
inventions, whether patentable or not, that are conceived, made, developed or
acquired by the Employee, individually or in conjunction with others, during the
Employment Term (whether during business hours or otherwise and whether on the
Company's premises or otherwise) that relate to the Company's or any of its
Affiliates' business, products or services (including, without limitation, all
such information relating to corporate opportunities, research, financial and
sales data, pricing terms, evaluations, opinions, interpretations, acquisitions
prospects, the identity of customers or their requirements, the identity of key
contacts within the customer's organizations or within the organization of
acquisition prospects, or marketing and merchandising techniques, prospective
names and marks) (collectively, "CONFIDENTIAL INFORMATION") shall be disclosed
to the Company and are and shall be the sole and exclusive property of the
Company or its Affiliates. Moreover, all documents, videotapes, written
presentations, brochures, drawings, memoranda, notes, records, files,
correspondence, manuals, models, specifications, computer programs, E-mail,
voice mail, electronic databases, maps, drawings, architectural renditions,
models and all other writings or materials of any type embodying any of such
information, ideas, concepts, improvements, discoveries, inventions and other
similar forms of expression (collectively, "WORK PRODUCT") are and shall be the
sole and exclusive property of the Company or its Affiliates. Upon termination
of the Employee's employment by the Company, for any reason, the Employee
promptly shall deliver such Confidential Information and Work Product, and all
copies thereof, to the Company.
5.2 DISCLOSURE TO THE EMPLOYEE. The Company may disclose to the
Employee, or place the Employee in a position to have access to or develop,
Confidential Information and Work Product of the Company or its Affiliates.
Except as required for the operations of the business of the Company, the
Employee agrees to preserve and protect the confidentiality of all Confidential
Information or Work Product of the Company or its Affiliates.
5.3 NO UNAUTHORIZED USE OR DISCLOSURE. The Employee agrees that he
will not, at any time during or after the Employee's employment by the Company,
make any unauthorized disclosure of, and will use reasonable efforts to prevent
the removal from the Company premises of, Confidential Information or Work
Product of the Company or its Affiliates, or make any use thereof, except in the
carrying out of the Employee's responsibilities hereunder. The Employee shall
use commercially reasonable efforts to have procedures prepared to cause all
persons or entities to whom any Confidential Information shall be disclosed by
him hereunder to observe the terms and conditions set forth herein as though
each such person or entity was bound hereby. The Employee shall have no
obligation hereunder to keep confidential any Confidential Information if and to
the extent disclosure thereof is specifically required by law; provided,
however, that in the event disclosure is required by applicable law, the
Employee shall provide the Company with prompt notice of such requirement prior
to making any such disclosure, so
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that the Company may seek an appropriate protective order. At the request of the
Company, the Employee agrees to deliver to the Company, at any time during the
Employment Term, all Confidential Information that he may possess or control.
The Employee agrees that all Confidential Information of the Company (whether
now or hereafter existing) conceived, discovered or made by him during the
Employment Term exclusively belongs to the Company (and not to the Employee, and
the Employee will promptly disclose such Confidential Information to the Company
and at the expense of the Company perform all actions reasonably requested by
the Company to establish and confirm such exclusive ownership. Affiliates of
Company shall be third party beneficiaries of the Employee's obligations under
this Section. As a result of the Employee's employment by Company, the Employee
may also from time to time have access to, or knowledge of, Confidential
Information or Work Product of third parties, such as customers, suppliers,
partners, joint venturers, and the like, of Company and its Affiliates. The
Employee also agrees to preserve and protect the confidentiality of such third
party Confidential Information and Work Product to the same extent, and on the
same basis, as Company's Confidential Information and Work Product.
5.4 OWNERSHIP BY COMPANY. If, during the Employee's employment by
Company, the Employee creates any work of authorship fixed in any tangible
medium of expression that is the subject matter of copyright (such as
videotapes, written presentations, or acquisitions, computer programs, E-mail,
voice mail, electronic databases, drawings, maps, architectural renditions,
models, manuals, brochures, or the like) relating to Company's business,
products, or services, whether such work is created solely by the Employee or
jointly with others (whether during business hours or otherwise and whether on
Company's premises or otherwise), Company shall be deemed the author of such
work if the work is prepared by the Employee in the scope of the Employee's
employment; or, if the work is not prepared by the Employee within the scope of
the Employee's employment but is specially ordered by Company as a contribution
to a collective work, as a part of a motion picture or other audiovisual work,
as a translation, as a supplementary work, as a compilation, or as an
instructional text, then the work shall be considered to be work made for hire
and Company shall be the author of the work. If such work is neither prepared by
the Employee within the scope of the Employee's employment nor a work specially
ordered that is deemed to be a work made for hire, then the Employee hereby
agrees to assign, and by these presents does assign, to Company all of the
Employee's worldwide right, title, and interest in and to such work and all
rights of copyright therein.
5.5 ASSISTANCE BY THE EMPLOYEE. During the period of the
Employee's employment by the Company and thereafter, the Employee at the expense
of the Company shall assist the Company and its nominee, at any time, in the
protection of the Company's or its Affiliates' worldwide right, title and
interest in and to Work Product and the execution of all formal assignment
documents requested by the Company or its nominee and the execution of all
lawful oaths and applications for patents and registration of copyright in the
United States and foreign countries.
5.6 REMEDIES. The Employee acknowledges that money damages would
not be sufficient remedy for any breach of this Article 5 by the Employee, and
the Company or its Affiliates shall be entitled to enforce the provisions of
this Article 5 by specific performance and injunctive relief as remedies for
such breach or any threatened breach. Such remedies shall not be deemed the
exclusive remedies for a breach of this Article, but shall be in addition to all
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EMPLOYMENT AGREEMENT OF JACK M. ANTONINI
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remedies available at law or in equity, including the recovery of damages from
the Employee and his agents.
ARTICLE 6
STATEMENTS CONCERNING THE COMPANY
6.1 IN GENERAL. The Employee shall refrain, both during the
Employment Term and thereafter, from publishing any oral or written statements
about the Company, any of its Affiliates or any of such entities' officers,
employees and consultants, agents or representatives that are (a) slanderous,
libelous or defamatory, (b) that disclose Confidential Information about the
Company, any of its Affiliates or any of such entities' business affairs,
officers, employees and consultants, agents or representatives except as
required by the business of the Company, (c) that constitute an intrusion into
the seclusion or private lives of any officers, employees and consultants,
agents or representatives of the Company or any of its Affiliates except as
required by the business of the Company, (d) that give rise to unreasonable
publicity about the private lives of any officers, employees and consultants,
agents or representatives of the Company or any of its Affiliates, (e) that
place the Company, any of its Affiliates, or any of such entities' officers,
employees and consultants, agents or representatives in a false light before the
public or (f) that constitute a misappropriation of the name or likeness of the
Company, any of its Affiliates or any of such entities' officers, employees and
consultants, agents or representatives. A violation or threatened violation of
this prohibition may be enjoined by the courts. The rights afforded the Company
and its Affiliates under this provision are in addition to any and all rights
and remedies otherwise afforded by law.
ARTICLE 7
NON-COMPETITION AFTER TERMINATION
7.1 IN GENERAL. The Employee agrees that, from the date hereof
until 24 months after the end of the Employment Term (the "NON-COMPETE PERIOD"),
the Employee shall not:
(a) directly or indirectly participate in the ownership,
management, operation or control of, or be connected as an officer, employee,
partner, director, contractor or otherwise with, or have any financial interest
in or aid or assist anyone else in the conduct of, any business in any of the
business territories in which the Company is presently or from time-to-time
conducting business that either conducts a business similar to that conducted by
the Company or its Affiliates or provides or sells a service or product that is
the same, substantially similar to or otherwise competitive with the products
and services provided or sold by the Company or its Affiliates (a "COMPETITIVE
OPERATION"); provided, however, that this provision shall not preclude the
Employee from (i) being employed by any financial institution so long as
Employee's principal duties as such institution are not directly and primarily
related to the principal business of the Company, as such business exists on the
date Employee's employment with the Company terminates; or (ii) owning less than
2% of the equity securities of any publicly held Competitive Operation so long
as the Employee does not serve as an employee, officer, director or consultant
to such business;
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(b) directly or indirectly, either as principal, agent,
independent contractor, consultant, director, officer, employee, employer,
advisor, stockholder, partner or in any other individual or representative
capacity whatsoever, either for his own benefit or for the benefit of any other
person or entity either (i) hire, contract or solicit, or attempt any of the
foregoing, with respect to hiring any employee of the Company or its Affiliates,
or (ii) induce or otherwise counsel, advise or encourage any employee of the
Company or its Affiliates to leave the employment of the Company or its
Affiliates;
(c) directly or indirectly, either as principal, agent,
independent contractor, consultant, director, officer, employee, employer,
advisor, stockholder, partner or in any other individual or representative
capacity whatsoever, either for his own benefit or for the benefit of any other
person or entity call upon, solicit, divert or take away, any customer or vendor
of the Company or its Affiliates with whom the Employee dealt, directly or
indirectly, during his engagement with the Company or its Affiliates, in
connection with a Competitive Operation;
(d) call upon any prospective acquisition candidate on
the Employee's own behalf or on behalf of any Competitive Operation, which
candidate is a Competitive Operation or which candidate was, to the Employee's
knowledge after due inquiry, either called upon by the Company or for which the
Company or any of its Affiliates made an acquisition analysis, for the purpose
of acquiring such entity; provided, however, this restriction shall apply to
Employee only during the term of his employment with the Company; or
(e) directly or indirectly participate in the ownership,
management, operation or control of more than 5% of the ownership interest in
any customer, vendor, supplier or lessor of goods and services to the Company
without the written consent of the Board. This restriction shall include any
Family Member of the Employee. Further, the Employee shall, on an annual basis
or from time to time as required by the Company, disclose which entities, if
any, in which they or any Family Member directly or indirectly participate in
the ownership, management, operation or control of, or are connected as an
officer, employee, partner, director or otherwise with, or have any financial
interest in or aid or assist anyone else in the conduct of any business that is
a customer, vendor, supplier or lessor of goods, services or real property to
the Company.
(f) It is agreed by the parties that the foregoing
covenants in this Article 7 impose a reasonable restraint on the Employee.
(g) The covenants in this Article 7 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. Moreover, in the event any court of competent
jurisdiction shall determine that the scope, time or territorial restrictions
set forth are unreasonable, then it is the intention of the parties that such
restrictions be enforced to the fullest extent that the court deems reasonable,
and the Agreement shall thereby be reformed.
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EMPLOYMENT AGREEMENT OF JACK M. ANTONINI
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ARTICLE 8
MISCELLANEOUS
8.1 NOTICES. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company to: Cardtronics, LP
3110 Hays, Suite 300
Houston, Texas 77082
Attention: General Counsel
With a copy to: CapStreet Group, LLC
600 Travis, Suite 6110
Houston, Texas 77002
Attention: Mr. Fred Lummis
If to the Employee to: Jack M. Antonini
22107 Laurel Terrace Ct
Katy, Texas 77450
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
8.2 APPLICABLE LAW. This Agreement is entered into under, and
shall be governed for all purposes by, the laws of the State of Texas.
8.3 NO WAIVER. No failure by either party hereto at any time to
give notice of any breach by the other party of, or to require compliance with,
any condition or provision of this Agreement shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at any prior or subsequent
time.
8.4 SEVERABILITY. To the extent permitted by applicable law, the
Company and the Employee hereby agree that any term or provision of this
Agreement that renders such term or provision or any other term or provision
hereof invalid or unenforceable in any respect shall be modified to the extent
necessary to avoid rendering such term or provision invalid or unenforceable,
and such modification shall be accomplished in the manner that most nearly
preserves the benefit of the Company and the Employee's bargain hereunder. If a
court of competent jurisdiction determines that any term or provision of this
Agreement is invalid or unenforceable, then the invalidity or unenforceability
of that term or provision shall not affect the validity or enforceability of any
other term or provision of this Agreement, and all other terms or provisions
shall remain in full force and effect so long as the economic or legal substance
of the transactions contemplated hereby is not affected in a materially adverse
manner with respect to either party.
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8.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
8.6 WITHHOLDING OF TAXES AND OTHER EMPLOYEE DEDUCTIONS. The
Company may withhold from any benefits and payments made pursuant to this
Agreement all federal, state, city and other taxes as may be required pursuant
to any law or governmental regulation or ruling and all other normal employee
deductions made with respect to the Company's employees generally.
8.7 HEADINGS. The section headings have been inserted for purposes
of convenience and shall not be used for interpretive purposes.
8.8 GENDER AND PLURALS. Wherever the context so requires, the
masculine gender includes the feminine or neuter, the singular number includes
the plural and vice-versa, "or" has the inclusive meaning identified with the
phrase "and/or" and "including" has the inclusive meaning frequently identified
with the phrase "but not limited to."
8.9 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the Company and any successor of the Company, by merger or
otherwise. Except as provided in the preceding sentence and except that the
Company may assign its rights together with its obligations (such obligations
being guaranteed by the Company) hereunder to an Affiliate, this Agreement and
the rights and obligations of the parties hereunder are personal and neither
this Agreement nor any right, benefit or obligation of either party hereto shall
be subject to voluntary or involuntary assignment, alienation or transfer,
whether by operation of law or otherwise, without the prior written consent of
the other party.
8.10 AMENDMENT; ENTIRE AGREEMENT. This Agreement may not be changed
orally but only by an agreement in writing agreed to and signed by both parties.
This Agreement constitutes the entire agreement of the parties with regard to
the subject matter hereof, contains all the covenants, promises,
representations, warranties and agreements between the parties with respect to
employment of the Employee by the Company and supersedes any and all prior
agreements, including employment agreements, bonus plans, benefit plans and
other compensation or benefit plans and agreements.
8.11 ARBITRATION. In the event of any dispute, difference or
question arising between the Company and the Employee in connection with this
Agreement or the discussion, negotiation, drafting or making hereof, or any
clause or the construction thereof, or the rights, duties or liabilities of
either party, then and in every such case, unless the parties agree on the
appointment of a single arbitrator, the matter of difference shall be referred
to one arbitrator appointed by the American Arbitration Association, and the
arbitration of such dispute shall be administered in accordance with the
employment rules of the American Arbitration Association. The arbitrator shall
determine the place or places in Harris County, Texas, where meetings are to be
held. The arbitrator must base his or her decision, with respect to the
difference before him or her, on the contents of this Agreement and the relevant
facts, and the decision of the arbitrator shall be binding on both parties.
Nothing herein is or shall be deemed to preclude the Company's resort to the
injunctive relief prescribed in this Agreement, including any injunctive relief
implemented by the arbitrators pursuant to this Section 8.11.
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8.12 EMPLOYEE'S REPRESENTATION. The Employee hereby warrants and
represents to Company that the Employee has carefully reviewed the Agreement and
has consulted with such advisors as the Employee considers appropriate in
connection with this Agreement, and is not subject to any covenants, agreements
or restrictions, including without limitation any covenants, agreements or
restrictions arising out of the Employee's prior employment that would be
breached or violated by the Employee's execution of this Agreement or by the
Employee's performance of his duties hereunder.
8.13 OTHER MATTERS. Employee agrees and herby acknowledges that the
obligations owed to the Employee under this Agreement are solely those of the
Company, and that none of the Company's stockholders, directors, officers,
Affiliates, representatives, agents or lenders will have any obligations or
liabilities in respect of this Agreement and the subject matter hereof.
[The remainder of this page is intentionally left blank]
CARDTRONICS, LP
EMPLOYMENT AGREEMENT OF JACK M. ANTONINI
11
<PAGE>
EXHIBIT A
DEFINED TERMS
As used in the Agreement, the following terms shall have the respective
meanings set forth below.
"AFFILIATE" shall mean, with respect to any other person or entity, any
other person or entity (a) that is directly or indirectly controlled by the
person or entity in question, (b) that directly or indirectly controls the
person or entity in question, or (c) that directly or indirectly is under common
control with the person or entity in question. For purposes of the foregoing
definition, (x) a person or entity controls another entity if it or he directly
or indirectly owns, or has the right to vote, at least 20% of the beneficial
interests in the entity or if through other agreements (e.g., management
agreement) has the right to control the policies of such entity; (y) indirect
control includes control held through one or more tiers of subsidiary or
intervening entities (such as corporations, partnerships, trusts, or limited
liability companies); and (z) "control" includes the ability, directly or
indirectly, to direct the management or policies of such entity, whether through
the ownership of voting rights, pursuant to a contract, or otherwise.
"CAUSE" shall mean if the Employee (A) has engaged in gross negligence
or willful misconduct in the performance of the duties required of him
hereunder, (B) has been indicted with respect to a felony offense, (C) has
willfully refused to perform the duties and responsibilities required of him
hereunder which would not be materially injurious to the Company or its
Affiliates in his capacity of the Chief Executive Officer as required expressly
by the Board of Directors of the Company, (D) has materially breached any
Company policy or code of conduct established by the Company of which he is
aware or should have been aware, (E) has willfully engaged in conduct that he
knows or should know is materially injurious to the Company or any of its
Affiliates or (F) has materially breached and failed to cure within a reasonable
period of time any provision of this Agreement.
"CHANGE OF CONTROL" shall mean any event or events that result in the
Summit Investors collectively selling sufficient holdings of Common Stock of the
Company so that either (i) the Summit Group's equity ownership in the Company is
no longer sufficient to elect a majority of the Board of Directors; or (ii)
selling more than fifty percent (50%) of their existing holdings of common stock
of the Company, whichever is less.
"COMPENSATION COMMITTEE" shall mean a committee formed by the Board for
the purpose of determining compensation levels (including base salary, bonus and
stock options) of key management and officers of the Company; provided, however,
that in the event the Board does not appoint such a committee, the Board shall
be considered the Compensation Committee for purposes of this Agreement.
"FAMILY MEMBER" shall mean any relative or spouse of such person or any
relative of such spouse, any one of whom has the same home as such person.
CARDTRONICS, LP
EMPLOYMENT AGREEMENT OF JACK M. ANTONINI
EXHIBIT A
<PAGE>
"TOTALLY DISABLED" shall mean failure by the Employee, by reason of
illness, incapacity or other disability, to perform his duties or fulfill his
obligations under this Agreement in the view of the Company and as certified in
writing by a competent medical physician chosen by the Company, for a cumulative
total of 180 days in any 12-month period.
[End of Exhibit "A"]
CARDTRONICS, LP
EMPLOYMENT AGREEMENT OF MICHAEL E. KELLER
EXHIBIT A - DEFINED TERMS
Page 2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above, to be effective as of the Effective Date.
The Company:
CARDTRONICS, LP
By: /s/ Fred Lummis
-------------------------------------------
Fred Lummis, Chairman
EMPLOYEE:
/s/ JACK M. ANTONINI
-----------------------------------------------
JACK M. ANTONINI
CARDTRONICS, LP
EMPLOYMENT AGREEMENT OF JACK M. ANTONINI
SIGNATURE PAGE