Exhibit 10.1
EMPLOYMENT
AGREEMENT
This Employment Agreement (the “ Agreement
”) is made and entered into as of the 6th day
of May 2009, by and between Tier Technologies, Inc., a Delaware
corporation (together with its successors and
assigns, the “ Company ”), and Keith
Omsberg (the “ Executive ”).
W I T N E S S E T
H
WHEREAS, the Company desires to continue to employ the Executive as
Vice President, General Counsel & Secretary and to enter into
an employment agreement embodying the terms of such employment;
and
WHEREAS, the Executive desires to enter into this Agreement and to
accept such continued employment, subject to the
terms and provisions of this Agreement;
WHEREAS, the parties also wish to enter into this Agreement to
terminate and supersede all prior agreements including but not
limited to the Nondisclosure and Proprietary/Confidential
Information Non-Competition Agreement the Executive executed on May
30, 2002, and the Employment Agreement of January 9, 2008;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is mutually
acknowledged, the Company and the Executive, intending to be
legally bound, agree as follows:
(a)
“ Base Salary ” shall mean the
Executive’s base salary as determined in accordance with
Section 4 below, including any applicable increases.
(b)
“ Board ” shall mean the Board of
Directors of the Company.
(c)
“ Cause ” shall mean a finding by the
Company of:
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(i)
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a conviction of the Executive of, or a plea of
guilty or nolo contendere by the Executive to, any
felony;
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(ii)
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an intentional violation by the Executive of
federal or state securities laws;
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(iii)
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willful misconduct or gross negligence by the
Executive that has or is reasonably likely to have a material
adverse effect on the Company;
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(iv)
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a failure of the Executive to perform his or
her reasonably assigned duties for the Company that
has or is reasonably likely to have a material adverse effect on
the Company;
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(v)
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a material violation by the Executive of any
material provision of the Company’s Business Code of Conduct
(or successor policies on similar topics) or any other applicable
policies in place;
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(vi)
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a violation by the Executive of any provision
of the Proprietary and Confidential Information,
Developments, Noncompetition and Nonsolicitation Agreement
(“NDA”) attached hereto as Exhibit A; or
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(vii)
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fraud, embezzlement, theft or dishonesty by
the Executive against the Company,
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provided
that no finding of Cause shall be made pursuant to
subsections (ii), (iii), (iv), (v), (vi) or (vii) hereof unless the
Company has provided the Executive with written notice in
accordance with Section 21 below stating with specificity the
facts and circumstances underlying the allegations of Cause and the
Executive has failed to cure such violation, if curable, within
thirty (30) calendar days of receipt thereof. The Board
shall determine whether a violation is curable and/or cured in its
reasonable discretion.
(d)
“ Change in Control ” shall occur
upon:
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(i)
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any person, entity or affiliated group
becoming the beneficial owner or owners of more than fifty percent
(50%) of the outstanding equity securities of the Company, or
otherwise becoming entitled to vote shares representing more than
fifty percent (50%) of the undiluted total voting power of the
Company’s then-outstanding securities eligible to vote to
elect members of the Board (the “ Voting
Securities ”);
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(ii)
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a consolidation or merger (in one transaction
or a series of related transactions) of the Company pursuant to
which the holders of the Company’s equity securities
immediately prior to such transaction or series of related
transactions would not be the holders immediately after such
transaction or series of related transactions of more than fifty
percent (50%) of the Voting Securities of the entity surviving such
transaction or series of related transactions;
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(iii)
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the sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company;
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(iv)
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the dissolution or liquidation of the Company;
or
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(v)
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the date on which (i) the Company consummates
a “going private” transaction pursuant to Section 13,
Rule 13e-3 of the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), or (ii) no longer has
a class of equity security registered under the Exchange Act.
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(e)
“ Code ” shall mean the Internal
Revenue Code of 1986, as amended from time to time.
(f)
“ Compensation Committee ” shall mean the
Compensation Committee of the Board or another committee of the
Board that performs the functions typically associated with a
compensation committee.
(g)
“ Date of Termination ” shall mean
(i) if the Executive’s employment is terminated by
reason of his or her death, the date of his or her death, or
(ii) if the Executive’s employment is terminated
pursuant to any other section, the prospective date specified in
the written notice provided in accordance with Section 21
below.
(h)
“ Disability ” shall mean, for purposes
of this Agreement, the Executive’s inability to substantially
perform his or her duties and responsibilities under this Agreement
for a period of six (6) consecutive months due to a physical
or mental disability, as the term “ physical or mental
disability ” is defined in the Company’s
long-term disability insurance plan then in effect (or would be so
found if the Executive applied for coverage or benefits under such
plan).
(i)
“ Effective Date ” shall mean May 6,
2009.
(j)
“ Good Reason ” shall mean, without the
Executive’s prior written consent, the occurrence of any of
the following events or actions, provided that no
finding of Good Reason shall be made pursuant to subsections (ii),
(iii) or (iv) hereof unless the Executive has provided the Company
with written notice in accordance with Section 21 below within
ninety (90) days after the occurrence of such event or action
stating with specificity the facts and circumstances underlying the
allegations of Good Reason and the Company has failed to cure such
violation within thirty (30) calendar days of receipt thereof:
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(i)
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any reduction in the Executive’s Base
Salary;
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(ii)
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any material diminution of the
Executive’s duties, responsibilities, powers or
authorities;
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(iii)
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any relocation of his or her principal place
of employment by more than fifty (50) miles or requirement that the
Executive relocate his or her principal place of residence by more
than fifty (50) miles; or
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(iv)
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a material breach by the Company of any
material provision of this Agreement.
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(k)
“ Term of Employment ” shall mean
the period specified in Section 2 below, as such period may be
extended.
The Company hereby continues to employ the Executive, and the
Executive hereby accepts such continued employment, for the period
commencing on the Effective Date and ending on May 6, 2011 subject
to earlier termination of the Term of Employment in accordance
with the terms of this Agreement. The expiration of the
Term of Employment will not constitute either a termination without
Cause or a resignation for Good Reason and no severance will be
payable upon or
after such expiration, except as provided in a generally applicable
Company plan.
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Position, Duties and Responsibilities
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As of the Effective Date, the Executive shall be employed as Vice
President, General Counsel & Secretary of the Company or in
such other reasonably comparable position as the
Chief Executive Officer of the Company (the “ Chief
Executive Officer ”) or the Board may determine from
time to time. In this capacity, the Executive shall be
assigned such duties and responsibilities inherent in such position
and such other duties and responsibilities as the
Chief Executive Officer or the Board shall from time
to time reasonably assign to him or her. The Executive
shall serve the Company faithfully, conscientiously, and to the
best of the Executive’s ability and shall promote the
interests and reputation of the Company. The Executive
shall devote all of the Executive’s time, attention,
knowledge, energy and skills during normal working hours, and at
such other times as the Executive’s duties may reasonably
require, to the duties of the Executive’s employment;
provided , however , that the Executive may (a) serve
on civic or charitable boards or committees; or (b) with the
approval of the Chief Executive Officer or the Board, serve on
corporate boards or committees. The Executive shall
report to the Chief Executive Officer in carrying out his or her
duties and responsibilities under this Agreement. The
Executive agrees to abide by the rules, regulations, instructions,
personnel practices and policies of the Company and any changes
therein that may be adopted from time to time.
As of May 6, 2009, the Executive shall be paid an annualized Base
Salary of One Hundred Ninety Thousand dollars ($190,000)
payable in accordance with the regular payroll
practices of the Company. The Base Salary shall be
subject to increase but not decrease thereafter. Any
increase to the Base Salary is to be determined by the Compensation
Committee, in consultation with the Chief Executive Officer.
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Incentive Compensation Arrangements
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During the Term of Employment, the Executive shall be entitled to
participate in any Company incentive compensation plans, programs
and/or arrangements applicable to senior-level executives as
established and modified from time to time by the Compensation
Committee in consultation with the Chief Executive Officer.
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Equity Compensation Programs .
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During the Term of Employment, the Executive shall be entitled to
participate in any equity-based plans, programs or arrangements
applicable to senior-level executives as established and modified
from time to time by the Chief Executive Officer or the Board in
their sole discretion, to the extent that the Executive is eligible
under (and subject to the provisions of) the plan documents
governing those programs.
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Employee Benefit Programs .
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During the Term of Employment, the Executive shall be entitled to
participate in all employee welfare and pension benefit plans,
programs and/or arrangements applicable to senior-level executives,
to the extent that the Executive is eligible under (and subject to
the provisions of) the plan documents governing those programs.
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Reimbursement of Business Expenses
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The Company shall reimburse the Executive for all reasonable
travel, entertainment and other expenses incurred or paid by the
Executive in connection with, or related to, the performance of his
or her duties, responsibilities or services under this Agreement,
upon presentation by the Executive of documentation, expense
statements, vouchers and/or such other supporting information as
the Company may request; provided , however , that
the amount available for such travel, entertainment and other
expenses may be fixed in advance by the Chief Executive Officer or
the Board.
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During the Term of
Employment, the Executive shall be entitled to participate in the
Company’s executive fringe benefit programs (if any)
applicable to the Company’s senior-level executives in
accordance with the terms and conditions of such programs as in
effect from time to time, to the extent that the Executive is e
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