Employment Agreement - Cardtronics LP, Cardtronics Inc. and Chris Brewster
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EMPLOYMENT AGREEMENT
AMONG
CARDTRONICS, LP,
CARDTRONICS, INC.
AND
CHRIS BREWSTER
MARCH 31, 2004
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TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS; CONSTRUCTION
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................................................2
2.4 DUTY OF LOYALTY....................................................2
ARTICLE 3
EMPLOYMENT TERM, TERMINATION AND RELATED MATTERS
3.1 EMPLOYMENT TERM....................................................2
3.2 TERMINATION........................................................2
3.3 EFFECT OF TERMINATION..............................................3
3.4 MISCELLANEOUS TERMS RELATING TO TERMINATION........................4
ARTICLE 4
COMPENSATION, BONUSES, BENEFITS AND STOCK PURCHASE
4.1 BASE SALARY........................................................5
4.2 BONUSES............................................................5
4.3 BENEFITS...........................................................5
ARTICLE 5
PROTECTION OF INFORMATION
5.1 DISCLOSURE TO AND PROPERTY OF THE COMPANY..........................6
5.2 DISCLOSURE TO THE EMPLOYEE.........................................6
5.3 NO UNAUTHORIZED USE OR DISCLOSURE..................................7
5.4 OWNERSHIP BY COMPANY...............................................8
5.5 ASSISTANCE BY THE EMPLOYEE.........................................8
5.6 REMEDIES...........................................................8
ARTICLE 6
STATEMENTS CONCERNING THE COMPANY AND THE EMPLOYEE
6.1 IN GENERAL.........................................................8
ARTICLE 7
NON-COMPETITION AFTER TERMINATION
7.1 IN GENERAL.........................................................9
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ARTICLE 8
MISCELLANEOUS
8.1 NOTICES...........................................................11
8.2 APPLICABLE LAW....................................................11
8.3 NO WAIVER.........................................................11
8.4 SEVERABILITY......................................................11
8.5 COUNTERPARTS......................................................12
8.6 WITHHOLDING OF TAXES AND OTHER EMPLOYEE DEDUCTIONS................12
8.7 HEADINGS..........................................................12
8.8 GENDER AND PLURALS................................................12
8.9 ASSIGNMENT........................................................12
8.10 AMENDMENT; ENTIRE AGREEMENT.......................................12
8.11 ARBITRATION.......................................................12
8.12 EMPLOYEE'S REPRESENTATION.........................................13
8.13 OTHER MATTERS.....................................................13
8.14 INDEMNIFICATION...................................................13
EXHIBITS:
A - Defined Terms
B - Form of Nonstatutory Stock Option Agreement
C - Form of Release Agreement
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EMPLOYMENT AGREEMENT
(Chris Brewster)
This EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into by and among
Cardtronics, LP, a Delaware limited partnership (the "COMPANY"), Cardtronics,
Inc., a Delaware corporation ("CARDTRONICS, INC."), and Chris Brewster, a
resident of Harris County, Texas (the "EMPLOYEE"), as of March 31, 2004.
Cardtronics, Inc. joins in the execution of this Agreement for the sole purpose
of evidencing its agreement to the provisions set forth in Sections 4.3(d), 6.1
and 8.14.
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; CONSTRUCTION
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. All article, section, subsection and exhibit
references used in this Agreement are to this Agreement unless otherwise
specified. Exhibits attached to this Agreement constitute a part of this
Agreement and are incorporated herein. Unless the context of this Agreement
clearly requires otherwise, (a) the singular shall include the plural and the
plural shall include the singular wherever and as often as may be appropriate,
(b) the words "includes" or "including" shall mean "including without
limitation," and (c) the words "hereof," "herein," "hereunder" and similar terms
in this Agreement shall refer to this Agreement as a whole and not any
particular section or article in which such words appear.
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 February 17, 2004 (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 Chief Financial Officer of the Company or such other position as the Company
and the Employee mutually agree. As long as Cardtronics, Inc. is the direct or
indirect owner of the Company, the Employee shall also serve as the Chief
Financial Officer of Cardtronics, Inc. The Employee shall report directly to the
Chief Executive Officer of the Company and of Cardtronics, Inc. As the Chief
Financial Officer of the Company and Cardtronics, Inc., the Employee will have
primary responsibility, subject to the direction of the Board and the Chief
Executive Officer, of the Company's and Cardtronics, Inc.'s financial operations
including accounting functions,
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financial reporting, taxes, risk management, budgets, financial projections,
financial support to the Board and assistance with investor relations.
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 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
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
EMPLOYMENT TERM, TERMINATION AND RELATED MATTERS
3.1 EMPLOYMENT TERM. The term of this Agreement shall commence on the
Effective Date and end on the third anniversary of the Effective Date (the
"STATED TERM") unless earlier terminated in accordance with this Agreement (the
Employee's actual period of employment, whether extending through the Stated
Term or terminated earlier in accordance with this Agreement, is referred to
herein as the "EMPLOYMENT TERM").
3.2 TERMINATION. Notwithstanding the provisions of Section 3.1, the
Employee's employment shall terminate prior to the expiration of the Stated Term
as follows:
(a) automatically, upon the Employee's death or voluntary
resignation;
(b) by the Company, upon notice to the Employee:
(i) upon the Employee becoming incapacitated by accident,
sickness or other circumstance that renders him Totally
Disabled;
(ii) upon the occurrence of any conduct or event constituting
Cause, but only after (A) an act or omission occurs
which may constitute Cause, (B) the Company notifies the
Employee (the "FOR CAUSE NOTICE") that the Company
intends to terminate his employment for Cause (and the
acts or
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omissions which allegedly constitute Cause must be
described by the Company in reasonable detail in the For
Cause Notice); and (C) in the case of an act or omission
described in clauses (a), (c), (d) or (f) of the
definition of the term Cause set forth in Exhibit A,
within 10 days after receiving such notice from the
Company, the Employee fails to cure the circumstances
which gave rise to a potential termination for Cause or
otherwise prevent the event which constituted grounds
for Cause before the occurrence of such event; or
(iii) at any time after 120 days after the Effective Date, for
any reason other than (A) the expiration of the Stated
Term or (B) a reason described in Section 3.2(a),
3.2(b)(i) or 3.2(b)(ii) (termination by the Company
under this clause (iii) being referred to as a "WITHOUT
CAUSE TERMINATION");
(c) by the Employee, if:
(i) a Good Reason Event occurs;
(ii) the Employee notifies the Company (the "GOOD REASON
NOTICE") within one year of the occurrence of the Good
Reason Event that the Employee intends to terminate his
employment with the Company because of the occurrence of
a Good Reason Event (which event must be described by
the Employee in reasonable detail in the Good Reason
Notice); and
(iii) within 20 days after receiving such notice from the
Employee, the Company fails to reinstate the Employee to
the position he was in, or otherwise cure the
circumstances giving rise to the Good Reason Event,
before the occurrence of such event.
Termination under Section 3.2(c) is referred to elsewhere in this
Agreement as a "GOOD REASON TERMINATION."
3.3 EFFECT OF TERMINATION
(a) If the Employee's employment under this Agreement terminates
at the expiration of the Stated Term or for any reason described in Section
3.2(a), 3.2(b)(i) or 3.2(b)(ii), all compensation, bonuses and benefits to the
Employee not yet accrued hereunder shall terminate contemporaneously with the
expiration of the Employment Term, but the Employee will be entitled to (i)
payment of all accrued and unpaid Base Salary to the date of termination, (ii)
reimbursement for all incurred but unreimbursed expenses for which the Employee
is entitled to reimbursement in accordance with the Company's written policies,
(iii) benefits to which the Employee is entitled under the terms of any
applicable benefit plan or program, and (iv) in the case of termination of
employment for any reason other than Cause as described in Section 3.2(b)(ii),
payment of any unpaid bonus for the fiscal year ending prior to the date of such
termination and a pro rata bonus for the fiscal year in which such termination
occurs.
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(b) If the Employee's employment terminates because of a Without
Cause Termination by the Company or a Good Reason Termination by the Employee,
subject to delivery (without revocation) of the release described in Section
3.4(c) and subject to the severance mitigation provisions of Section 3.4(a), the
Employee (or his estate, as applicable) shall be entitled to receive all
benefits described in clauses (i) through (iv) of Section 3.3(b) and severance
pay equal to the Base Salary for 12 months (the "SEVERANCE PERIOD"). All
severance payments due under this Section 3.3(b) shall become due and payable at
such times and in such installments as would have been payable if the Employee
had not been so terminated. During the portion, if any, of the Severance Period
that the Employee elects to continue coverage for himself and his eligible
dependents under the Company's group health plans under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended (COBRA), and/or Sections 601
through 608 of the Employee Retirement Income Security Act of 1974, as amended,
the Company shall promptly reimburse the Employee on a monthly basis for the
difference between the amount the Employee pays to effect and continue such
coverage and the employee contribution amount that active senior executive
employees pay for the same or similar coverage under the Company's group health
plans. In addition, during the Severance Period, the Employee will be entitled
to continued coverage under all other Company welfare benefit plans, subject
only to the requirement that he continue to pay the required premiums, if any,
applicable to active senior executive employees for the same or similar
coverage.
3.4 MISCELLANEOUS TERMS RELATING TO TERMINATION.
(a) (a) If the Employee is entitled to severance pay under Section
3.3(b) and the Employee subsequently accepts employment with or provides
services to a third party for compensation on a full-time basis (which shall
mean 20 hours or more per week), then the Company's obligation to pay the
Employee any severance pay thereafter shall be reduced by the gross earnings
paid to or earned by the Employee from such other employment or provision of
services during the Severance Period. The Employee agrees promptly to notify the
Company if he accepts any employment or enters into any service arrangement as
described above that provides the Employee with compensation.
(b) Notwithstanding anything to the contrary in this Agreement,
the Company may set off any amounts of money owed by the Employee to the Company
(arising under this Agreement or otherwise) against any payments owed by the
Company to the Employee (arising under this Agreement or otherwise).
(c) In light of the difficulties in estimating the damages for a
termination of this Agreement before the expiration of the Stated Term, the
Company and the Employee hereby agree that the severance payments, if any, to be
received by the Employee pursuant to Section 3.3(b) 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. As a condition to
receiving any severance payments owing under this Agreement, the Employee will
enter into and deliver to the Company a separate full release and waiver
substantially in the form attached hereto as Exhibit C (with such changes to
such form as the Company or the Employee may reasonably require to reflect the
circumstances relating to the termination of the Employee's employment and/or
changes in applicable law). Notwithstanding anything to the contrary in this
Agreement, severance payments will not be payable by the Company unless and
until the release
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has been executed by the Employee and has not been revoked and is no longer
subject to revocation by the Employee.
(d) Termination of the Employee's employment with the Company
(whether because of the expiration of the Stated Term or for any other reason)
shall not affect the continuing applicability of the terms set forth in Articles
5, 6, 7 and 8, all of which shall continue in full force and effect during and
after the Employee's employment hereunder.
ARTICLE 4
COMPENSATION, BONUSES, BENEFITS AND STOCK PURCHASE
4.1 BASE SALARY. During the Employment Term, the Company shall pay the
Employee a gross base salary of $225,000 (as such may be adjusted from time to
time pursuant to the following sentence) (the "BASE SALARY"), which the Company
shall pay to the Employee in bi-weekly installments in accordance with the
Company's regular payroll practice for management employees. The Base Salary is
expected to increase by 5% of the prior year's Base Salary on each anniversary
of the Effective Date; provided, whether an increase actually occurs is subject
to the sole discretion of the Board. Thus, no obligation to increase Base Salary
shall exist by reason of the foregoing expectation.
4.2 BONUSES. In addition to the Base Salary due under Section 4.1, the
Employee may 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. If the
Employment Term during any fiscal year is less than the full fiscal year, the
Bonus, if any, attributable to any fiscal year shall be prorated for the actual
number of days of the Employment Term that elapses during such fiscal year.
4.3 BENEFITS.
(a) During the Employment Term, except as expressly provided
otherwise in this Agreement (e.g. severance, vacation, bonuses and equity
incentive compensation), 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, dental, disability,
and 401(k) plans as may be in effect from time to time for other similarly
situated employees of the Company.
(b) The Employee shall be entitled to three weeks paid vacation
for each 12-month period during the Employment Term and sick leave in accordance
with the Company's prevailing policy for its executives.
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(c) The Company shall reimburse the Employee for all reasonable
and proper travel and out-of-pocket expenses incurred by the Employee in
connection with the performance of his duties, all in accordance with the
Company's written policies as provided to the Employee from time to time.
(d) Effective as of March 31, 2004, Cardtronics, Inc. shall grant
to the Employee an option (the "INITIAL OPTION") to purchase 45,000 shares of
Common Stock of Cardtronics, Inc. pursuant to a stock incentive plan maintained
by Cardtronics, Inc. The Initial Option shall be evidenced by a Nonstatutory
Stock Option Agreement in the form attached hereto as Exhibit B, and such
agreement and the plan referenced therein shall govern the terms and conditions
of the Initial Option. The purchase price for each share of Common Stock of
Cardtronics, Inc. subject to the Initial Option shall be equal to $52 per share.
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 shall 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;
and/or shall entrust the Employee with business opportunities of the Company or
its Affiliates; and/or shall place the Employee in a position to develop
business good will on behalf of the Company or its Affiliates. The Employee
agrees to preserve and protect the confidentiality of all Confidential
Information or Work Product of the Company or its Affiliates.
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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 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 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 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, or thereafter, 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 perform all actions reasonably requested by the Company to
establish and confirm such exclusive ownership. Affiliates of the Company shall
be third party beneficiaries of the Employee's obligations under this Section.
As a result of the Employee's employment by the 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 the 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 the Company's Confidential Information and Work Product.
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5.4 OWNERSHIP BY COMPANY. If, during the Employment Term 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 the 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 the Company's premises or otherwise),
the 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 the 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 the 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 the 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 Employment Term and
thereafter, the Employee, upon reasonable notice and in exchange for
reimbursement of any expenses reasonably incurred, 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 terminating payments then owing to the Employee under this
Agreement or otherwise and to 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 remedies available at law or in equity, including the recovery
of damages from the Employee and his agents.
ARTICLE 6
STATEMENTS CONCERNING THE COMPANY AND THE EMPLOYEE
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, (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, (d) that give
rise to unreasonable publicity about the private lives of any officers,
employees and consultants, agents or representatives of the Company or
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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;
provided, however, that nothing in this Agreement shall apply to or restrict in
any way the communication of information by the Employee to any state or federal
law enforcement agency or require notice to the Company thereof, and the
Employee will not be in breach of the covenant contained above solely by reason
of his testimony which is compelled by process of law. The Company and
Cardtronics, Inc. shall refrain, both during the Employment Term and thereafter,
from publishing any oral or written statements regarding the Employee that are
(a) slanderous, libelous or defamatory, (b) that constitute an intrusion into
the seclusion or private lives of the Employee or any member of his family, (c)
that give rise to unreasonable publicity about the private lives of the Employee
or his family, or (d) that place the Employee or his family in a false light
before the public; provided, however, that nothing in this Agreement shall apply
to or restrict in any way the communication of information by the Company or
Cardtronics, Inc. to any state or federal law enforcement agency or require
notice to the Employee thereof, and the Company and Cardtronics, Inc. will not
be in breach of the covenant contained above solely by reason of their testimony
which is compelled by process of law. A violation or threatened violation of
this prohibition may be enjoined by the courts. The rights afforded the Company
and its Affiliates and the Employee 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. As part of the consideration for the compensation and
benefits to be paid to the Employee hereunder; to protect the trade secrets and
Confidential Information of the Company or its Affiliates that will in the
future be disclosed or entrusted to the Employee, the business good will of the
Company or its Affiliates that will in the future be developed in the Employee,
or the business opportunities that will in the future be disclosed or entrusted
to the Employee by the Company or its Affiliates; and as an additional incentive
for the Company to enter into this Agreement, the Company and the Employee agree
to the provisions of this Section 7.1. 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, the segment or division 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 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; or
(e) directly or indirectly participate in the ownership,
management, operation or control of more than 2% of the ownership interest in
the segment or division of any business which is a customer, vendor, supplier or
lessor of goods and services to the Company without the written consent of the
Board which, after the Employment Term, shall not be unreasonably withheld. 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.
It is agreed by the parties that the foregoing covenants in this Article 7
impose a reasonable restraint on the Employee.
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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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: Chief Executive Officer
with a copy to: Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2300
Houston, Texas 77002
Attention: Mr. Bruce C. Herzog
If to the Employee to: Chris Brewster
2935 Chevy Chase Dr.
Houston, Texas 77019
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 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 hereby acknowledges that the
obligations owed to the Employee under this Agreement are solely those of the
Company, and, where expressly noted, Cardtronics, Inc. and that none of the
Company's stockholders, directors, officers, other Affiliates, representatives,
agents or lenders will have any obligations or liabilities in respect of this
Agreement and the subject matter hereof.
8.14 INDEMNIFICATION. The Company agrees to indemnify the Employee to
the extent set forth in the Company's and Cardtronics, Inc.'s partnership
agreement or Certificate of Incorporation and By-Laws, as applicable, in effect
as of the date hereof.
[The remainder of this page is intentionally left blank]
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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/ Jack M. Antonini
----------------------------------------
Jack M. Antonini
President and Chief Executive Officer
EMPLOYEE:
/s/ Chris Brewster
--------------------------------------------
Chris Brewster
SOLELY FOR PURPOSES OF SECTIONS 4.3(d),
6.1 AND 8.14:
CARDTRONICS, INC.
By: /s/ Jack M. Antonini
----------------------------------------
Jack M. Antonini
President and Chief Executive Officer
<PAGE>
EXHIBIT A
DEFINED TERMS
As used in the Agreement, the following terms shall have the respective
meanings set forth below or set forth in the provision of the Agreement
following such term.
"AFFILIATE" means, 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,
(i) 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; (ii) 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 (iii) "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.
"BASE SALARY" shall have the meaning ascribed to such term in Section 4.1
of this Agreement.
"BOARD" means the Board of Directors of Cardtronics, Inc., a Delaware
corporation that indirectly owns all of the partnership interests of the
Company. Cardtronics, Inc. is the sole managing partner of the general partner
of the Company. In such capacity, the Board makes certain decisions on behalf of
Cardtronics, Inc., which acts on behalf of the general partner of the Company.
"BONUS" shall have the meaning ascribed to such term in Section 4.2 of
this Agreement.
"CAPSTREET INVESTORS" has the meaning given such term in the Investors
Agreement of Cardtronics, Inc., a Delaware corporation, among Cardtronics, Inc.
and certain of its stockholders including CapStreet II, L.P.
"CAUSE" shall exist 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,
(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 any provision of
this Agreement.
"CHANGE IN CONTROL" means:
(a) prior to the date of an IPO, (i) any transaction or event
pursuant to which the CapStreet Investors cease to collectively own 50% or
more of the number of shares of Common Stock of Cardtronics, Inc. that
they own on the Effective Date or (ii) all or
<PAGE>
substantially all of the assets of Cardtronics, Inc. are transferred to an
entity that is not owned (in substantially the same proportions) by the
holders of equity securities of Cardtronics, Inc. immediately prior to
such transaction; and
(b) from and after the date of an IPO, (i) a merger of
Cardtronics, Inc. with another entity, a consolidation involving
Cardtronics, Inc., or the sale of all or substantially all of the assets
of Cardtronics, Inc. to another entity if, in any such case, (A) the
holders of equity securities of Cardtronics, Inc. immediately prior to
such transaction or event do not beneficially own immediately after such
transaction or event equity securities of the resulting entity entitled to
60% or more of the votes then eligible to be cast in the election of
directors generally (or comparable governing body) of the resulting entity
in substantially the same proportions that they owned the equity
securities of Cardtronics, Inc. immediately prior to such transaction or
event or (B) the persons who were members of the Board immediately prior
to such transaction or event shall not constitute at least a majority of
the board of directors of the resulting entity immediately after such
transaction or event, (ii) the dissolution or liquidation of Cardtronics,
Inc., (iii) when any person or entity, including a "group" as contemplated
by Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(other than the CapStreet Investors) acquires or gains ownership or
control (including, without limitation, power to vote) of more than 50% of
the combined voting power of the outstanding securities of, (A) if
Cardtronics, Inc. has not engaged in a merger or consolidation,
Cardtronics, Inc. or (B) if Cardtronics, Inc. has engaged in a merger or
consolidation, the resulting entity or (iv) as a result of or in
connection with a contested election of directors, the persons who were
members of the Board immediately before such election shall cease to
constitute a majority of the Board. For purposes of this paragraph (b),
(I) "resulting entity" in the context of a transaction or event that is a
merger, consolidation or sale of all or substantially all assets shall
mean the surviving entity (or acquiring entity in the case of an asset
sale) unless the surviving entity (or acquiring entity in the case of an
asset sale) is a subsidiary of another entity and the holders of common
stock of Cardtronics, Inc. receive capital stock of such other entity in
such transaction or event, in which event the resulting entity shall be
such other entity and (II) subsequent to the consummation of a merger or
consolidation that does not constitute a Change in Control, the term
"Cardtronics, Inc." shall refer to the resulting entity and the term
"Board" shall refer to the board of directors (or comparable governing
body) of the resulting entity.
Notwithstanding the foregoing, in no event shall an IPO constitute a
Change in Control.
"COMPANY" shall have the meaning ascribed to such term in the preamble of
this Agreement.
"COMPENSATION COMMITTEE" means 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.
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"COMPETITIVE OPERATION" shall have the meaning ascribed to such term in
Section 7.1(a) of this Agreement.
"CONFIDENTIAL INFORMATION" shall have the meaning ascribed to such term in
Section 5.1 of this Agreement.
"EMPLOYEE" shall have the meaning ascribed to such term in the preamble of
this Agreement.
"EMPLOYMENT TERM" shall have the meaning ascribed to such term in Section
3.1 of the Agreement.
"FAMILY MEMBER" means any relative or spouse of such person or any
relative of such spouse, any one of whom has the same home as such person.
"GOOD REASON EVENT" means any of the following events:
(a) a Change in Control occurs;
(b) without the Employee's prior consent, the assignment to the
Employee by the Company of duties inconsistent with the Employee's
position as Chief Financial Officer of the Company or Cardtronics, Inc.,
or any significant reduction or significant change in either position or
job function, except in connection with the termination of employment for
Cause or in connection with the termination of employment by reason of the
Employee becoming Totally Disabled;
(c) without the Employee's prior consent, the Company requires the
Employee to relocate more than 100 miles from the Company's existing
corporate headquarters in Houston, Texas; or
(d) a material breach of Article 4 of the Agreement by the Company
or an Affiliate.
"IPO" means the initial sale of any class of common stock of Cardtronics,
Inc. pursuant to an effective registration statement under the Securities Act
(other than a registration statement on Form S-8, Form S-4 or any successor
forms).
"NON-COMPETE PERIOD" shall have the meaning ascribed to such term in
Section 7.1 of this Agreement.
"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.
"WORK PRODUCT" shall have the meaning ascribed to such term in Section 5.1
of this Agreement.
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EXHIBIT B
THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR APPLICABLE STATE SECURITIES LAWS
(THE "STATE ACTS"), AND SHALL NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR
OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE SUBSCRIBER
EXCEPT BY REGISTRATION OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UPON THE
ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF COUNSEL OR OTHER EVIDENCE
REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY SUCH TRANSFER
SHALL NOT BE IN VIOLATION OF THE 1933 ACT AND THE STATE ACTS.
NONSTATUTORY STOCK OPTION AGREEMENT
[CHRIS BREWSTER]
This NONSTATUTORY STOCK OPTION AGREEMENT is made as of the 31st day of
March, 2004 (the "DATE OF Grant"), between CARDTRONICS, INC., a Delaware
corporation (the "COMPANY"), and CHRIS BREWSTER ("EMPLOYEE").
To carry out the purposes of the CARDTRONICS 2001 STOCK INCENTIVE PLAN
(the "PLAN"), by affording Employee the opportunity to purchase shares of the
common stock of the Company, par value $.0001 per share ("STOCK"), and in
consideration of the mutual agreements and other matters set forth herein and in
the Plan, the Company and Employee hereby agree as follows:
1. EMPLOYMENT AGREEMENT; DEFINED TERMS. Cardtronics, LP and Employee
have heretofore entered into an Employment Agreement dated as of March 31, 2004
(as the same may be amended from time to time, the "EMPLOYMENT AGREEMENT")
setting forth certain terms and conditions relating to Employee's employment by
Cardtronics, LP. For all purposes of this Agreement, the terms "CAUSE," "CHANGE
IN CONTROL," "GOOD REASON TERMINATION," "IPO," "TOTALLY DISABLED," and "WITHOUT
CAUSE TERMINATION" shall have the meanings assigned to such terms in the
Employment Agreement. Other capitalized terms used but not defined in this
Agreement shall have the meaning attributed to such terms under the Plan, unless
the context requires otherwise.
2. GRANT OF OPTION. The Company hereby irrevocably grants to Employee
the right and option ("OPTION") to purchase all or any part of an aggregate of
45,000 shares of Stock on the terms and conditions set forth herein and in the
Plan, which Plan is incorporated herein by reference as a part of this
Agreement. In the event of any conflict between the terms of this Agreement and
the Plan, the Plan shall control. This Option shall not be treated as an
incentive stock option within the meaning of section 422(b) of the Code. This
Option constitutes the stock option described in Section 4.3(d) of the
Employment Agreement.
3. PURCHASE PRICE. The purchase price of Stock purchased pursuant to the
exercise of this Option shall be $52 per share.
<PAGE>
4. EXERCISE OF OPTION. Subject to the earlier expiration of this Option
as herein provided, this Option may be exercised, by written notice to the
Company at its principal executive office addressed to the attention of its
Secretary (or such other officer or employee of the Company as the Company may
designate from time to time), at any time and from time to time after the Date
of Grant, but, except as otherwise provided below, this Option shall not be
exercisable for more than a percentage of the aggregate number of shares offered
by this Option determined by the number of full years from February 17, 2004
(which is the effective date of the Employment Agreement), to the date of such
exercise, in accordance with the following schedule:
PERCENTAGE OF SHARES
NUMBER OF FULL YEARS THAT MAY BE PURCHASED
-------------------- ---------------------
Less Than One Year 0%
One Year 33 1/3%
Two Years 66 1/3%
Three Years or More 100%
This Option may be exercised only while Employee remains an employee of the
Company and will terminate and cease to be exercisable upon Employee's
termination of employment with the Company, except that:
(a) If Employee's employment with the Company terminates by reason
of Employee becoming Totally Disabled, then this Option may be exercised
by Employee (or Employee's estate or the person who acquires this Option
by will or the laws of descent and distribution or otherwise by reason of
the death of Employee) at any time during the period of one year following
such termination, but only as to the number of shares Employee was
entitled to purchase hereunder as of the date Employee's employment so
terminates.
(b) If Employee dies while in the employ of the Company,
Employee's estate, or the person who acquires this Option by will or the
laws of descent and distribution or otherwise by reason of the death of
Employee, may exercise this Option at any time during the period of one
year following the date of Employee's death, but only as to the number of
shares Employee was entitled to purchase hereunder as of the date of
Employee's death.
(c) If a Change in Control occurs while Employee is in the employ
of the Company and prior to the date of an IPO, then this Option may be
exercised by Employee (or Employee's estate or the person who acquires
this Option by will or the laws of descent and distribution or otherwise
by reason of the death of Employee) while he is employed or for the
three-year period following any subsequent termination of employment, but
only as to the greater of (i) the number of shares determined pursuant to
the schedule above as of the date of the Change in Control plus an
additional 50% of the number of shares covered by this Option as provided
in the first sentence of Paragraph 2 of this Agreement (as adjusted
pursuant to the terms and provisions of the Plan) or (ii) the
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<PAGE>
number of shares determined pursuant to the schedule above as of the
earlier of the date of any such exercise or the date of Employee's
termination of employment; provided, however, that in no event shall this
Option be exercisable for more than 100% of the number of shares covered
by this Option as provided in the first sentence of Paragraph 2 of this
Agreement (as adjusted pursuant to the terms and provisions of the Plan).
(d) If Employee's employment with the Company terminates prior to
the date of an IPO due to a Without Cause Termination by the Company or a
Good Reason Termination by Employee, then, subject to Employee's delivery
(without revocation) of the release described in Section 3.4(c) of the
Employment Agreement, this Option may be exercised by Employee (or
Employee's estate or the person who acquires this Option by will or the
laws of descent and distribution or otherwise by reason of the death of
Employee) at any time during the period of three years following such
termination, but only as to a number of shares equal to the sum of (i) the
number of shares Employee was entitled to purchase hereunder as of the
date of such termination and (ii) 50% of the number of shares covered by
this Option as provided in the first sentence of Paragraph 2 of this
Agreement (as adjusted pursuant to the terms and provisions of the Plan);
provided, however, that in no event shall this Option be exercisable for
more than 100% of the number of shares covered by this Option as provided
in the first sentence of Paragraph 2 of this Agreement (as adjusted
pursuant to the terms and provisions of the Plan).
(e) If a Change in Control occurs while Employee is in the employ
of the Company and on or after the date of an IPO, then this Option may be
exercised in full by Employee (or Employee's estate or the person who
acquires this Option by will or the laws of descent and distribution or
otherwise by reason of the death of Employee) while he is employed or for
the three-year period following any subsequent termination of employment.
(f) If Employee's employment with the Company terminates on or
after the date of an IPO due to a Without Cause Termination by the Company
or a Good Reason Termination by Employee, then, subject to Employee's
delivery (without revocation) of the release described in Section 3.4(c)
of the Employment Agreement, this Option may be exercised in full by
Employee (or Employee's estate or the person who acquires this Option by
will or the laws of descent and distribution or otherwise by reason of the
death of Employee) at any time during the period of three years following
such termination.
(g) If Employee's employment with the Company terminates for any
reason other than as described in (a), (b), (c), (d), (e) or (f) above,
unless such employment is terminated for Cause, then this Option may be
exercised by Employee at any time during the period of three months
following such termination, or by Employee's estate (or the person who
acquires this Option by will or the laws of descent and distribution or
otherwise by reason of the death of Employee) during a period of one year
following Employee's death if Employee dies during such three month
period, but in each case only
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as to the number of shares Employee was entitled to purchase hereunder as
of the date of such termination.
Notwithstanding the foregoing, this Option shall not be exercisable in any event
after the expiration of ten years from the Date of Grant. The purchase price of
shares as to which this Option is exercised shall be paid in full at the time of
exercise (a) in cash (including check, bank draft or money order payable to the
order of the Company), (b) by delivering or constructively tendering to the
Company shares of Stock having a Fair Market Value equal to the purchase price
(provided such shares used for this purpose must have been held by Employee for
such minimum period of time as may be established from time to time by the
Compensation Committee), (c) if the Stock is readily tradable on a national
securities market, through a "cashless-broker" exercise in accordance with a
Company established policy or program for the same, or (d) any combination of
the foregoing. No fraction of a share of Stock shall be issued by the Company
upon exercise of an Option or accepted by the Company in payment of the exercise
price thereof; rather, Employee shall provide a cash payment for such amount as
is necessary to effect the issuance and acceptance of only whole shares of
Stock. Unless and until a certificate or certificates representing such shares
shall have been issued by the Company to Employee, Employee (or the person
permitted to exercise this Option in the event of Employee's death) shall not be
or have any of the rights or privileges of a shareholder of the Company with
respect to shares acquirable upon an exercise of this Option.
5. WITHHOLDING OF TAX. To the extent that the exercise of this Option or
the disposition of shares of Stock acquired by exercise of this Option results
in compensation income or wages to Employee for federal, state or local tax
purposes, Employee shall deliver to the Company at the time of such exercise or
disposition such amount of money or shares of Stock as the Company may require
to meet its minimum obligation under applicable tax laws or regulations. No
exercise of this option shall be effective until Employee (or the person
entitled to exercise this Option, as applicable) has made arrangements approved
by the Company to satisfy all applicable minimum tax withholding requirements of
the Company.
6. INVESTORS AGREEMENT. Shares of Stock purchased pursuant to the
exercise of this Option shall be subject to the terms of that certain Investors
Agreement dated as of June 4, 2001, among the Company and certain of its
stockholders, as the same may be amended or restated from time to time (the
"INVESTORS Agreement"); provided, however, that if this Option has not been
exercised in full by Employee, then this Option shall constitute a "Security"
for purposes of Section 8 of Exhibit B to the Investors Agreement. Employee
agrees that Employee and Employee's spouse, if any, will, on the first date of
exercise of this Option, execute and deliver to the Company such documents and
instruments as the Board, in its discretion, may require to evidence such
persons' agreement to be bound by the terms of the Investors Agreement.
7. LOCK-UP PROVISION. Employee hereby agrees that in the event of any
underwritten public offering of stock, including an initial public offering of
stock, made by the Company pursuant to an effective registration statement filed
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), Employee
shall not offer, sell, contract to sell, pledge, hypothecate, grant any option
to purchase or make any short sale of, or otherwise dispose of any
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shares of stock of the Company or any rights to acquire stock of the Company for
such period of time from and after the effective date of such registration
statement as may be established by the underwriter for such public offering;
provided, however, that such period of time shall not exceed 180 days from the
effective date of the registration statement to be filed in connection with such
public offering. The foregoing limitation shall not apply to shares registered
in the public offering under the Securities Act.
8. STATUS OF STOCK. Employee understands that at the time of the
execution of this Agreement the shares of Stock to be issued upon exercise of
this Option have not been registered under the Securities Act, or any state
securities law, and that the Company does not currently intend to effect any
such registration. Until the shares of Stock acquirable upon the exercise of the
Option have been registered for issuance under the Securities Act, the Company
will not issue such shares unless the holder of the Option provides the Company
with a written opinion of legal counsel, who shall be satisfactory to the
Company, addressed to the Company and satisfactory in form and substance to the
Company's counsel, to the effect that the proposed issuance of such shares to
such Option holder may be made without registration under the Securities Act. In
the event exemption from registration under the Securities Act is available upon
an exercise of this Option, Employee (or the person permitted to exercise this
Option in the event of Employee's death or incapacity), if requested by the
Company to do so, will execute and deliver to the Company in writing an
agreement containing such provisions as the Company may require to assure
compliance with applicable securities laws.
Employee agrees that the shares of Stock which Employee may acquire by
exercising this Option shall be acquired for investment without a view to
distribution, within the meaning of the Securities Act, and shall not be sold,
transferred, assigned, pledged or hypothecated in the absence of an effective
registration statement for the shares under the Securities Act and applicable
state securities laws or an applicable exemption from the registration
requirements of the Securities Act and any applicable state securities laws.
Employee also agrees that the shares of Stock which Employee may acquire by
exercising this Option will not be sold or otherwise disposed of in any manner
which would constitute a violation of any applicable federal or state securities
laws.
In addition, Employee agrees that (i) the certificates representing the
shares of Stock purchased under this Option may bear such legend or legends as
the Compensation Committee deems appropriate in order to assure compliance with
the terms and provisions of the Investors Agreement, Paragraph 7 of this
Agreement, and applicable securities laws, (ii) the Company may refuse to
register the transfer of the shares of Stock purchased under this Option on the
stock transfer records of the Company if such proposed transfer would in the
opinion of counsel satisfactory to the Company constitute a violation of the
terms and provisions of the Investors Agreement, Paragraph 7 of this Agreement,
or any applicable securities law, and (iii) the Company may give related
instructions to its transfer agent, if any, to stop registration of the transfer
of the shares of Stock purchased under this Option.
9. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, Employee
shall be considered to be in the employment of the Company as long as Employee
remains an employee
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of either the Company, an Affiliate, or a corporation or a parent or subsidiary
of such corporation assuming or substituting a new option for this Option.
Without limiting the scope of the preceding sentence, it is expressly provided
that Employee shall be considered to have terminated employment with the Company
at the time of the termination of the "Affiliate" status under the Plan of the
entity or other organization that employs Employee. Any question as to whether
and when there has been a termination of such employment, and the cause of such
termination, shall be determined by the Compensation Committee and its
determination shall be final.
10. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of any successors to the Company and all persons lawfully claiming
under Employee.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties with regard to the subject matter hereof, and contains all the
covenants, promises, representations, warranties and agreements between the
parties with respect to the Option granted hereby. Without limiting the scope of
the preceding sentence, all prior understandings and agreements, if any, among
the parties hereto relating to the subject matter hereof are hereby null and
void and of no further force and effect. Any modification of this Agreement
shall be effective only if it is in writing and signed by both Employee and an
authorized officer of the Company.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
[The remainder of this page is intentionally left blank]
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and Employee has executed
this Agreement, all as of the day and year first above written.
CARDTRONICS, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
--------------------------------------
CHRIS BREWSTER
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<PAGE>
EXHIBIT C
RELEASE AGREEMENT
This Release Agreement (this "AGREEMENT") constitutes the release referred
to in that certain Employment Agreement (the "EMPLOYMENT AGREEMENT") dated as of
March 31, 2004, by and among Chris Brewster ("EMPLOYEE"), Cardtronics, LP (the
"COMPANY") and Cardtronics, Inc. ("PARENT").
For good and valuable consideration, including the Company's provision of
certain payments and benefits to Employee in accordance with Section 3.3(b) of
the Employment Agreement [and an increase in the vested percentage of the
Initial Option (as such term is defined in the Employment Agreement)], Employee
hereby releases, discharges and forever acquits the Company, Parent, their
respective Affiliates (as such term is defined in the Employment Agreement) and
the past, present and future stockholders, members, partners, directors,
managers, employees, agents, attorneys, heirs, legal representatives, successors
and assigns of the foregoing, in their personal and representative capacities
(collectively, the "COMPANY PARTIES"), from liability for, and hereby waives,
any and all claims, damages, or causes of action of any kind related to
Employee's employment with any Company Party, the termination of such
employment, and any other acts or omissions related to any matter on or prior to
the date of this Agreement including without limitation any alleged violation
through the date of this Agreement of: (i) the Age Discrimination in Employment
Act of 1967, as amended; (ii) Title VII of the Civil Rights Act of 1964, as
amended; (iii) the Civil Rights Act of 1991; (iv) Section 1981 through 1988 of
Title 42 of the United States Code, as amended; (v) the Employee Retirement
Income Security Act of 1974, as amended; (vi) the Immigration Reform Control
Act, as amended; (vii) the Americans with Disabilities Act of 1990, as amended;
(viii) the National Labor Relations Act, as amended; (ix) the Fair Labor
Standards Act, as amended; (x) the Occupational Safety and Health Act, as
amended; (xi) the Family and Medical Leave Act of 1993; (xii) any state
anti-discrimination law; (xiii) any state wage and hour law; (xiv) any other
local, state or federal law, regulation or ordinance; (xv) any public policy,
contract, tort, or common law claim; (xvi) any allegation for costs, fees, or
other expenses including attorneys' fees incurred in these matters; (xvii) any
and all rights, benefits or claims Employee may have under any employment
contract, incentive compensation plan or stock option plan with any Company
Party or to any ownership interest in any Company Party except as expressly
provided in the Employment Agreement, the Investors Agreement of Cardtronics,
Inc. and any stock option or other equity compensation agreement between
Employee and Parent and (xviii) any claim for compensation or benefits of any
kind not expressly set forth in the Employment Agreement or any such stock
option or other equity compensation agreement (collectively, the "RELEASED
CLAIMS"). In no event shall the Released Claims include any claim which arises
after the date of this Agreement or any claim to vested benefits under an
employee benefit plan . This Agreement is not intended to indicate that any such
claims exist or that, if they do exist, they are meritorious. Rather, Employee
is simply agreeing that, in exchange for the consideration recited in the first
sentence of this paragraph, any and all potential claims of this nature that
Employee may have against the Company Parties, regardless of whether they
actually exist, are expressly settled, compromised and waived. By signing this
Agreement, Employee is bound by it. Anyone who succeeds to Employee's rights and
responsibilities, such as heirs or the executor of
<PAGE>
Employee's estate, is also bound by this Agreement. This release also applies to
any claims brought by any person or agency or class action under which Employee
may have a right or benefit. THIS RELEASE INCLUDES MATTERS ATTRIBUTABLE TO THE
SOLE OR PARTIAL NEGLIGENCE (WHETHER GROSS OR SIMPLE) OR OTHER FAULT, INCLUDING
STRICT LIABILITY, OF ANY OF THE COMPANY PARTIES.
Employee agrees not to bring or join any lawsuit against any of the
Company Parties in any court relating to any of the Released Claims. Employee
represents that Employee has not brought or joined any lawsuit or filed any
charge or claim against any of the Company Parties in any court or before any
government agency and has made no assignment of any rights Employee has asserted
or may have against any of the Company Parties to any person or entity, in each
case, with respect to any Released Claims.
By executing and delivering this Agreement, Employee acknowledges that:
(a) Employee has carefully read this Agreement;
(b) Employee has had at least 21 days to consider this Agreement
before the execution and delivery hereof to the Company;
(c) Employee has been and hereby is advised in writing that
Employee may, at Employee's option, discuss this Agreement with an
attorney of Employee's choice and that Employee has had adequate
opportunity to do so; and
(d) Employee fully understands the final and binding effect of
this Agreement; the only promises made to Employee to sign this Agreement
are those stated in the Employment Agreement and herein; and Employee is
signing this Agreement voluntarily and of Employee's own free will, and
that Employee understands and agrees to each of the terms of this
Agreement.
This Agreement will not be effective unless Employee executes this
Agreement before a notary public on a day after _______________ and before
__________________ and delivers an original counterpart of the executed and
notarized Agreement to the Company on or prior to __________________.
Notwithstanding the initial effectiveness of this Agreement, Employee may
revoke the delivery (and therefore the effectiveness) of this Agreement within
the seven day period beginning on the date Employee delivers this Agreement to
the Company (such seven day period being referred to herein as the "RELEASE
REVOCATION PERIOD"). To be effective, such revocation must be in writing signed
by Employee and must be delivered to the Chief Executive Officer of the Company
before 11:59 p.m., Houston, Texas time, on the last day of the Release
Revocation Period. If an effective revocation is delivered in the foregoing
manner and timeframe, this Agreement shall be of no force or effect and shall be
null and void ab initio. No consideration shall be paid [nor increase in the
vested percentage of the Initial Option shall occur] if this Agreement is
revoked by Employee in the foregoing manner.
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<PAGE>
Executed on this ___________ day of _____________, _______.
---------------------------------------
Chris Brewster
STATE OF _____________ ss.
ss.
COUNTY OF ____________ ss.
BEFORE ME, the undersigned authority personally appeared Chris Brewster,
by me known or who produced valid identification as described below, who
executed the foregoing instrument and acknowledged before me that he subscribed
to such instrument on this ____ day of ______________, ______.
_______________________________________
NOTARY PUBLIC in and for
the State of __________________________
My Commission Expires:_________________
Identification produced:
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