THIS EMPLOYMENT AGREEMENT
(“ Agreement
”) is made by and between Cardtronics, LP, a Delaware limited
partnership (the “ Company ”), and Tres
Thompson (“ Employee ”).
WHEREAS , the Company desires to employ Employee on the
terms and conditions, and for the consideration, hereinafter set
forth and Employee desires to be employed by the Company on such
terms and conditions and for such consideration.
NOW, THEREFORE , for and in consideration of the mutual
promises, covenants and obligations contained herein, the Company
and Employee agree as follows:
In addition to the terms defined in the body of
this Agreement, for purposes of this Agreement, the following
capitalized words shall have the meanings indicated
below:
1.1 “Cause” shall mean a determination
by the Company that Employee (a) has engaged in gross
negligence, gross incompetence or willful misconduct in the
performance of Employee’s duties with respect to the Company
or any of its affiliates, (b) has refused without proper legal
reason to perform Employee’s duties and responsibilities to
the Company or any of its affiliates, (c) has materially
breached any material provision of this Agreement or any written
agreement or corporate policy or code of conduct established by the
Company or any of its affiliates, (d) has willfully engaged in
conduct that is materially injurious to the Company or any of its
affiliates, (e) has disclosed without specific authorization
from the Company confidential information of the Company or any of
its affiliates that is materially injurious to any such entity,
(f) has committed an act of theft, fraud, embezzlement,
misappropriation or willful breach of a fiduciary duty to the
Company or any of its affiliates, or (g) has been convicted of
(or pleaded no contest to) a crime involving fraud, dishonesty or
moral turpitude or any felony (or a crime of similar import in a
foreign jurisdiction).
1.2 “Code” shall mean the Internal
Revenue Code of 1996, as amended.
1.3 “Date of Termination” shall mean the
date specified in the Notice of Termination relating to termination
of Employee’s employment with the Company, subject to
adjustment as provided in Section 3.3.
1.4 “Notice of Termination” shall mean a
written notice delivered to the other party indicating the specific
termination provision in this Agreement relied upon for termination
of Employee’s employment and the Date of Termination and
shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Employee’s
employment under the provision so indicated.
1.5 “Section 409A Payment Date”
shall mean the earlier of (a) the date of Employee’s
death or (b) the date that is six months after the date of
termination of Employee’s employment with the
Company.
ARTICLE II
EMPLOYMENT AND DUTIES
2.1 Employment; Effective Date
. The Company agrees to employ
Employee, and Employee agrees to be employed by the Company,
pursuant to the terms of this Agreement beginning as of June 5,
2008 (the “ Effective Date ”) and
continuing for the period of time set forth in Article III of
this Agreement, subject to the terms and conditions of this
Agreement.
2.2 Positions . From and after the Effective Date, the Company
shall employ Employee in the position of Chief Accounting Officer
of the Company or in such other position or positions as the
parties mutually may agree, and Employee shall report to the Chief
Financial Officer of the Company.
2.3 Duties and Services
. Employee agrees to serve in the
position(s) referred to in Section 2.2 hereof and to perform
diligently and to the best of Employee’s abilities the duties
and services appertaining to such position(s), as well as such
additional duties and services appropriate to such position(s)
which the parties mutually may agree upon from time to time.
Employee’s employment shall also be subject to the policies
maintained and established by the Company that are of general
applicability to the Company’s employees, as such policies
may be amended from time to time.
2.4 Other Interests
. Employee agrees, during the period
of Employee’s employment by the Company, to devote
substantially all of Employee’s business time, energy and
best efforts to the business and affairs of the Company and its
affiliates. Notwithstanding the foregoing, the parties acknowledge
and agree that Employee may (a) engage in and manage
Employee’s passive personal investments and (b) engage
in charitable and civic activities; provided, however, that such
activities shall be permitted so long as such activities do not
conflict with the business and affairs of the Company or interfere
with Employee’s performance of Employee’s duties
hereunder.
2.5 Duty of Loyalty
. Employee acknowledges and agrees
that Employee owes a fiduciary duty of loyalty, fidelity and
allegiance to act in the best interests of the Company and to do no
act that would materially injure the business, interests, or
reputation of the Company or any of its affiliates. In keeping with
these duties, Employee shall make full disclosure to the Company of
all business opportunities pertaining to the Company’s
business and shall not appropriate for Employee’s own benefit
business opportunities concerning the subject matter of the
fiduciary relationship.
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ARTICLE III
TERM AND TERMINATION OF EMPLOYMENT
3.1 Term . Subject to the remaining terms of this
Article III, this Agreement shall be for an initial term that
continues in effect through the third anniversary of the Effective
Date (the “ Initial Term ” ) and, unless
terminated sooner as herein provided, shall continue on a
year-to-year basis (each a “Renewal Term”
and together with the Initial Term, the
“Term” ). If the Company or Employee
elects not to renew this Agreement for a Renewal Term, the Company
or Employee must give a Notice of Termination to the other party at
least 90 days before the expiration of the then-current
Initial Term or Renewal Term, as applicable. In the event that one
party provides the other with a Notice of Termination pursuant to
this Section 3.1, no further automatic extensions will occur
and this Agreement shall terminate at the end of the then-existing
Initial Term or Renewal Term, as applicable.
3.2 Company’s Right to
Terminate .
Notwithstanding the provisions of Section 3.1, the Company may
terminate Employee’s employment under this Agreement at any
time for any of the following reasons by providing Employee with a
Notice of Termination:
(a) upon Employee being unable to perform
Employee’s duties or fulfill Employee’s obligations
under this Agreement by reason of any medically determinable
physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not
less than six months as determined by the Company and certified in
writing by a competent medical physician selected by the Company;
or
(d) for any other reason whatsoever or for
no reason at all, in the sole discretion of the Company.
3.3 Employee’s Right to
Terminate .
Notwithstanding the provisions of Section 3.1, Employee shall
have the right to terminate Employee’s employment under this
Agreement for any reason whatsoever or for no reason at all, in the
sole discretion of Employee, by providing the Company with a Notice
of Termination. In the case of a termination of employment by
Employee pursuant to this Section 3.3, the Date of Termination
specified in the Notice of Termination shall not be less than 15
nor more than 60 days, respectively, from the date such Notice
of Termination is given, and the Company may require a Date of
Termination earlier than that specified in the Notice of
Termination (and, if such earlier Date of Termination is so
required, it shall not change the basis for Employee’s
termination nor be construed or interpreted as a termination of
employment pursuant to Section 3.1 or
Section 3.2).
3.4 Deemed Resignations
. Unless otherwise agreed to in
writing by the Company and Employee prior to the termination of
Employee’s employment, any termination of Employee’s
employment shall constitute an automatic resignation of Employee as
an officer of the Company and each affiliate of the Company, and an
automatic resignation of Employee from the board of directors of
the Company (if applicable) and any affiliate of the Company and
from the board of directors or similar governing body of any
corporation, limited liability entity or other entity in which the
Company or any affiliate holds an equity interest and with respect
to which board or similar governing body Employee serves as the
Company’s or such affiliate’s designee or other
representative.
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3.5 Meaning of Termination of
Employment . For all
purposes of this Agreement, Employee shall be considered to have
terminated employment with the Company when Employee incurs a
“separation from service” with the Company within the
meaning of Section 409A(a)(2)(A)(i) of the Code and applicable
administrative guidance issued thereunder.
ARTICLE IV
COMPENSATION AND BENEFITS
4.1 Base Salary . During the term of this Agreement, Employee
shall receive a minimum, annualized base salary of $200,170 (the
“Base Salary” ). Employee’s
annualized base salary shall be reviewed periodically by the
Company and, in the sole discretion of the Company, such annualized
base salary may be increased (but not decreased) effective as of
any date determined by the Company. Employee’s Base Salary
shall be paid in equal installments in accordance with the
Company’s standard policy regarding payment of compensation
to similarly situated employees but no less frequently than
monthly.
4.2 Bonuses . Employee shall be eligible to receive an
annual, calendar-year bonus based on criteria determined in the
discretion of the Company (the “Annual
Bonus” ), it being understood that (a) the
target bonus at planned or targeted levels of performance shall
equal 40% of Employee’s Base Salary and (b) the actual
amount of each Annual Bonus shall be determined in the discretion
of the Company. The Company shall use commercially reasonable
efforts to pay each Annual Bonus with respect to a calendar year on
or before March 15 of the following calendar year (and in no
event shall an Annual Bonus be paid after December 31 of the
following calendar year), provided that (except as otherwise
provided in Section 7.1(b)) Employee is employed by the
Company on such date of payment. If Employee has not been employed
by the Company since January 1 of the year that includes the
Effective Date, then the Annual Bonus for such year shall be
prorated based on the ratio of the number of days during such
calendar year that Employee was employed by the Company to the
number of days in such calendar year.
4.3 Other Perquisites
. During Employee’s employment
hereunder, the Company shall provide Employee with the same
perquisite benefits made available to similarly situated employees
of the Company.
4.4 Expenses . The Company shall reimburse Employee for all
reasonable business expenses incurred by Employee in performing
services hereunder, including all expenses of travel and living
expenses while away from home on business or at the request of and
in the service of the Company; provided, in each case, that such
expenses are incurred and accounted for in accordance with the
policies and procedures established by the Company. Any such
reimbursement of expenses shall be made by the Company upon or as
soon as practicable following receipt of supporting documentation
reasonably satisfactory to the Company (but in any event not later
than the close of Employee’s taxable year following the
taxable year in which the expense is incurred by Employee);
provided, however, that, upon Employee’s termination of
employment with the Company, in no event shall any additional
reimbursement be made prior to the Section 409A Payment Date
to the extent such payment delay is required under
Section 409A(a)(2)(B)(i) of the Code. In no event shall any
reimbursement be made to Employee for such fees and expenses
incurred after the later of (1) the first anniversary of the
date of Employee’s death or (2) the date that is
10 years after the date of Employee’s termination of
employment with the Company.
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4.5 Vacation and Sick Leave
. During Employee’s employment
hereunder, Employee shall be entitled to (a) sick leave in
accordance with the Company’s policies applicable to its
similarly situated employees and (b) four (4) weeks paid
vacation each calendar year (none of which may be carried forward
to a succeeding year); provided, however, that if Employee has not
been employed by the Company since January 1 of the year that
includes the Effective Date, then Employee’s paid vacation
for such year shall be prorated based on the ratio of the number of
days remaining in such calendar year from and after the Effective
Date to the number of days in such calendar year (rounded up to the
nearest whole day).
4.6 Offices . Subject to Articles II, III, and IV hereof,
Employee agrees to serve without additional compensation, if
elected or appointed thereto, as a director of the Company or any
of the Company’s affiliates and as a member of any committees
of the board of directors of any such entities, and in one or more
officer positions of any of the Company’s
affiliates.
ARTICLE V
PROTECTION OF INFORMATION
5.1 Disclosure to and Property of the
Company . For
purposes of this Article V, the term “the Company”
shall include the Company and any of its affiliates, and any
reference to “employment” or similar terms shall
include a director and/or consulting relationship. All information,
trade secrets, designs, ideas, concepts, improvements, product
developments, discoveries and inventions, whether patentable or
not, that are conceived, made, developed or acquired by Employee,
individually or in conjunction with others, during the period of
Employee’s employment by the Company (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, trade secrets, products or services
(including, without limitation, all such information relating to
corporate opportunities, product specification, compositions,
manufacturing and distribution methods and processes, research,
financial and sales data, pricing terms, evaluations, opinions,
interpretations, acquisition 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 production, marketing and merchandising
techniques, prospective names and marks) and all writings or
materials of any type embodying any of such information, ideas,
concepts, improvements, discoveries, inventions and other similar
forms of expression (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). Employee agrees to
perform all actions reasonably requested by the Company or its
affiliates to establish and confirm such exclusive ownership. Upon
termination of Employee’s employment by the Company, for any
reason, Employee promptly shall deliver such Confidential
Information and Work Product, and all copies thereof, to the
Company.
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5.2 Disclosure to Employee
. The Company shall disclose to
Employee, or place Employee in a position to have access to or
develop, Confidential Information and Work Product of the Company
(or its affiliates); and shall entrust Employee with business
opportunities of the Company (or its affiliates); and shall place
Employee in a position to develop business good will on behalf of
the Company (or its affiliates).
5.3 No Unauthorized Use or
Disclosure . Employee
agrees to preserve and protect the confidentiality of all
Confidential Information and Work Product of the Company and its
affiliates. Employee agrees that Employee will not, at any time
during or after Employee’s employment with the Company, make
any unauthorized disclosure of, and Employee shall not remove from
the Company premises, Confidential Information or Work Product of
the Company or its affiliates, or make any use thereof, except, in
each case, in the carrying out of Employee’s responsibilities
hereunder. Employee shall use all reasonable efforts to cause all
persons or entities to whom any Confidential Information shall be
disclosed by Employee hereunder to preserve and protect the
confidentiality of such Confidential Information. 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, 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 at any time, Employee agrees
to deliver to the Company all Confidential Information that
Employee may possess or control. Employee agrees that all
Confidential Information of the Company (whether now or hereafter
existing) conceived, discovered or made by Employee during the
period of Employee’s employment by the Company exclusively
belongs to the Company (and not to Employee), and upon request by
the Company for specified Confidential Information, 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 Employee’s
obligations under this Article V. As a result of
Employee’s employment by the Company, 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. Employee also agrees to preserve and protect
the confidentiality of such third party Confidential Information
and Work Product.
5.4 Ownership by the Company
. If, during Employee’s
employment by the Company, 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 Employee or jointly with others (whether during business
hours or otherwise and whether on the Company’s premises or
otherwise), including any Work Product, the Company shall be deemed
the author of such work if the work is prepared by Employee in the
scope of Employee’s employment; or, if the work relating to
the Company’s business, products, or services is not prepared
by Employee within the scope of 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
the work relating to the Company’s business, products, or
services is neither prepared by Employee within the scope of
Employee’s employment nor a work specially ordered that is
deemed to be a work made for hire during Employee’s
employment by the Company, then Employee hereby agrees to assign,
and by these presents does assign, to the Company all of
Employee’s worldwide right, title, and interest in and to
such work and all rights of copyright therein.
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5.5 Assistance by Employee
. During the period of
Employee’s employment by the Company, Employee 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 Confidential Information and 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. After Employee’s
employment with the Company terminates, at the request from time to
time and expense of the Company or its affiliates, Employee shall
reasonably assist the Company and its nominee, at reasonable times
and for reasonable periods and for reasonable compensation, in the
protection of the Company’s or its affiliates’
worldwide right, title and interest in and to Confidential
Information and 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 . Employee acknowledges that money damages would
not be a sufficient remedy for any breach of this Article V by
Employee, and the Company or its affiliates shall be entitled to
enforce the provisions of this Article V by terminating
payments then owing to 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 V
but shall be in addition to all remedies available at law or in
equity, including the recovery of damages from Employee and
Employee’s agents. However, if it is determined that Employee
has not co
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