July 12, 2005
TABLE OF CONTENTS
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 Drew Soinski, of 106 North Wilton Place, Los Angeles, California 90004 (the “ Employee ”), as of July 12, 2005. 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:
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.
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 August 1, 2005 (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 Company’s Chief Marketing Officer and Executive Vice President Sales and Marketing. The Employee shall report directly to the Chief Executive Officer of the Company and of Cardtronics, Inc. As the Chief Marketing Officer and Executive Vice President Sales and Marketing, the Employee will responsible for Cardtronics’ sales and revenue, organic growth initiatives, and developing strategies to increase ATM transactions and functionalities. Employees reporting directly to the Chief Marketing Officer and Executive Vice President Sales and Marketing will be the Executive Vice President, National Sales, Vice President, Marketing, and a senior level officer (executive or senior vice president) to head a “Business Development” section, to be created in the very near future. Additionally, the Chief Marketing Officer and
Executive Vice President Sales and Marketing will work closely with the Executive Vice President, Financial Institutions, as a resource to help with bank branding and outsourcing opportunities.
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. Employee shall work at the Company’s principal offices in Houston. Additionally, to effectively carry out his duties, Employee shall be required to travel on a regular to extensive basis; with significant international travel. 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.
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:
Termination under Section 3.2(b) 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.
(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 and the benefits described in Section 4.3(a) 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) 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 B (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 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.
4.1 Base Salary . During the Employment Term, the Company shall pay the Employee a gross base salary of $250,000 (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 50% 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; provided, however with respect only to that portion of the Employment Term that ends on December 31, 2005, so long as Employee has not been terminated for cause the Company will pay Employee a bonus equal to 50% of his Base Salary.
If the Employment Term during any fiscal year is less than the Company’s 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.
(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 four 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.
(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 August 1, 2005, Cardtronics, Inc. shall grant to the Employee an option (the “ Initial Option ”) to purchase 50,000 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 executed contemporaneously herewith, 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 $83.84 per share.
4.4 Sign-On Bonus in lieu of Relocation Expenses
(a) To compensate Employee for any and all expenses incurred commuting to and living in Houston prior to the permanent move as well as any and all expenses incurred in the family’s permanent move to Houston (“Relocation Expenses”). Within ten (10) days of reporting to work, Company will pay a $50,000 relocation bonus. In return, Employee will be solely responsible for any and all Relocation Expenses. In recognition of this benefit, Employee agrees that should at anytime prior to September 1, 2007, Employee voluntarily terminates employment with Company, Employee will pay Company a sum equal to $2,083.00 multiplied by the number of partial or whole months between the date of Employee’s voluntary termination and September 1, 2007.
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.
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 E