EXHIBIT 10.43


 


 


EMPLOYMENT
AGREEMENT


This agreement (the “Agreement”) between Official Payments Corporation, a Delaware
corporation (the “Company”)
and Michael P. Presto (the “Employee”), is entered into as of this 18th
day of July, 2002.  This Agreement shall
be effective as of August 1, 2002 (the “Effective Date”).  The term of this Agreement is for the period from the Effective
Date to January 15, 2003, unless sooner terminated.  This Agreement supercedes all previous agreements.


 


Agreement


In consideration of the mutual benefits
derived from this Agreement and of the agreements, covenants and provisions
hereof, the parties hereto agree as follows:


 


A.           EMPLOYEE
POLICY.  As of the Effective Date, the
Company will be a wholly owned subsidiary of Tier Technologies, Inc., a
California Corporation (“Tier”) and as an affiliated company will be subject to
Tier’s employee policies.


 


B.           AT-WILL
EMPLOYMENT.  The Company
employs Employee from and after the Effective Date in the capacity of Chief
Operating Officer, Official Payments Corporation, reporting to the Chief
Executive Officer of Tier, or his designee. 
Employee will be based initially in Stamford, CT, but Tier reserves the
right to move designated offices to an area within reasonable proximity within
the tri-state area, including Manhattan, NY. 
Employee agrees to perform such services as are customary to such office
and as shall from time to time be assigned to him by the Company.  Employee agrees to undertake business travel
as is customary to such capacity, and as shall from time to time be requested
of him by the Company or Tier.  The
parties agree that employment at the Company is at will and may be terminated
by either the Company or Employee at any time with or without cause and, except
as provided in Section 2.1(a)(i), with or without notice.  Employee acknowledges that Employee has no
right to be employed for a specific term and no right to insist on specific
grounds for termination.  Employee
acknowledges and agrees that the at-will nature of this Agreement extends to
all employment decisions and that any change in the terms and conditions of
employment, including without limitation work assignments, production
standards, job responsibilities, compensation and promotions, shall be at the
Company’s sole discretion.


 


1.            COMPENSATION
AND BENEFITS


 


1.1          Base
Salary.  In consideration of
and as compensation for the services to be performed by Employee hereunder, the
Company shall pay Employee a base salary (the “Base Salary”) of not less than $350,000
per year, payable semi-monthly in arrears in accordance with Tier’s regular
payroll practices.


1.2          Bonus.  Employee will be eligible to
receive a one-time bonus payment in the amount of $100,000 net of applicable
withholdings and deductions.  Payment of
this one-time bonus will be made on January 15, 2003.  Payment is contingent upon Employee being actively


 

















 


employed by the Company as of January 15,
2003, or having been terminated by the Company for any reason other than “for
cause,” as defined in Section 2.1(a) (including, without limitation, by reason
of Employee’s death or disability), prior to January 15, 2003.  Employee will not be eligible for such bonus
if he resigns or if the Company terminates his employment for cause prior to
January 15, 2003.


1.3          Participation
in Benefit Plans.  Employee
shall be entitled to participate in any pension plans, profit-sharing plans and
group insurance, medical, hospitalization, disability and other benefit plans
maintained by Tier from time to time, as such are generally applicable to
employees of Tier and to the extent Employee is eligible under the general
provisions thereof.


1.4          Car
Allowance.  Employee shall
be entitled to an automobile allowance equal to $551 per month.


1.5          Reimbursement
of Expenses.  The Company shall
reimburse Employee for all business expenses, including, without limitation,
travel, entertainment and similar expenses, incurred by Employee on behalf of
the Company if such expenses are ordinary and necessary business expenses
incurred on behalf of the Company pursuant to the Tier’s standard expense
reimbursement policy.  Employee shall
provide the Company with such itemized accounts, receipts or documentation for
such expenses as are required under Tier’s policy regarding the reimbursement
of such expenses.


1.6          Vacation
and Personal Leave.  Employee
shall be entitled to carry forward any earned but untaken vacation immediately
prior to the Effective Date and to accrue four (4) weeks’ paid vacation per
year for post-Effective Date periods (pro-rated for post-Effective Date service
shorter than one (1) year).  Employee
shall also be entitled to other paid personal leave in accordance with Tier’s
policy.


2.            TERMINATION


2.1          Termination.


(a)           Termination
for Cause.  Termination
“for cause” shall be limited to the occurrence of any of the following events:


(i)            the
Employee’s failure to substantially perform Employee’s duties with the Company
in good faith (provided in the case of illness, injury or disability that the
Company has provided reasonable accommodation under applicable disabilities
laws), after a demand for substantial performance is delivered to Employee by
the Company which identifies, in reasonable detail, the manner in which the
Company believes that the Employee has not substantially performed Employee’s
duties in good faith and such Employee has not, in the sole discretion of the
Company, improved the performance of Employee’s duties during a period of
fourteen (14) days from such demand for substantial performance;


(ii)           the
Employee’s willful commission of any act which has a material adverse effect on
the Company, including, without limitation, an act of dishonesty, fraud,
willful disobedience, gross misconduct or breach of duty;


 


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(iii)         the
Employee’s commission of any act in contravention of Employee’s undertakings
contained in Section 3 hereof; or


(iv)          the
Employee’s conviction of a felony or a misdemeanor involving dishonesty or
moral turpitude.


(b)           Termination
Without Cause.  The Company
may terminate Employee’s employment under this Agreement without cause or
notice at any time.


2.2          Severance
Payment.  For avoidance
of doubt, Company and Employee agree that Employee, due to previous change in
control provisions, has vested in Employee’s original severance (“Severance
Payment”) in the amount of 
$250,000.  Upon termination of
employment for any reason, whether such termination is by the Company, by
Employee or because of Employee’s death or disability, and upon the Employee’s
furnishing to the Company an executed waiver and release of claims, in the form
of which is attached hereto as Exhibit A, the
Employee shall receive ratable payment of the $250,000 over a period of twelve
(12) months (the “Severance Period”), subject to standard deductions and
withholdings.  In addition, the Company
shall pay Employee a lump sum payment of $6,000 in cash within fourteen (14)
days after termination of his employment, in exchange for Employee’s agreement
not to participate in the Company’s medical and dental coverage at any time
during the period of employment and to waive any right to continue medical and
dental coverage under the provisions of COBRA. 
Further, Employee shall be entitled to a lump sum in cash of $2,500,
such payment to be made within fourteen (14) days after termination of
employment, in lieu of participation during the Severance Period in all other
Company benefit plans in which the Employee participated as of the date of
termination.  Employee shall be entitled
to the Employee’s Base Salary and accrued and unused vacation earned through
the date of termination, subject to standard deductions and withholdings.  Employee shall not be entitled to any other
severance benefits.


3.            NON-COMPETITION,
NON-SOLICITATION AND CONFIDENTIALITY


3.1          Non-Competition.  During the Severance Period,
Employee shall not, either individually or as a partner, joint venturer,
consultant, shareholder, member or Representative of another Person or
otherwise, directly or indirectly, participate in, engage in, or have a
financial or management interest in, promote, or assist any other Person in any
business operation or any enterprise if such business operation or enterprise
engages, or would engage, in a Restricted Business in a Restricted Area; provided,
however, that Employee may own up to one percent of the outstanding
equity securities of any Person.


3.2          Non-Solicitation.  For a period of one (1) year after the
termination of Employee’s employment, Employee shall not, directly or
indirectly (i) employ or seek to employ any Person who at the date of such
termination, or within the twelve (12)-month period preceding the date of such
termination, was an employee, contractor or consultant of the Company or Tier,
or otherwise solicit, encourage, cause or induce any such employee, contractor
or consultant to terminate such relationship with the Company or Tier, or (ii)
take any willful action that would interfere with the relationship of the
Company or Tier with its respective clients or vendors.


3.3          Confidential
Information.


 


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(a)           Employee
acknowledges that the Confidential Information (as hereinafter defined) is
valuable, special and unique; and that the Company and Tier wish to protect
such Confidential Information by keeping it confidential for the use and
benefit of the Company and Tier.  Based
on the foregoing, Employee undertakes:


(i)            to
keep any and all Confidential Information in trust for the use and benefit of
the Company or Tier;


(ii)           except
as required by Employee’s duties hereunder, as may be required by any
governmental authority, or as may be authorized in writing by the Company, not
at any time to disclose or use, directly or indirectly, any Confidential
Information;


(iii)         to
take all reasonable steps necessary, or reasonably requested by the Company or
Tier, to ensure that all Confidential Information is kept confidential for the
use and benefit of the Company or Tier; and


(iv)          upon
termination of Employee’s employment with the Company or at any other time the
Company may in writing so request, to promptly deliver to the Company all
materials constituting Confidential Information (including all copies thereof)
that are in Employee’s possession or under Employee’s control.  Further, the Employee undertakes that, if
requested by the Company, Employee shall return any Confidential Information
pursuant to this subsection and shall not make or retain any copy of or extract
from such materials.


3.4          For
purposes of this Agreement, “Person” means an individual, a
partnership, a limited liability company, a joint venture, a corporation, a
trust, an unincorporated organization, a division or operating group of any of
the foregoing, a government or any department or agency thereof or any other
entity.  “Representative” means
any officer, director, principal, agent, employee, consultant or other
representative of a Person.  “Restricted
Business” means any business involved in the electronic
processing of payments to government or commercial entities or any other
business in which Company is actively engaged on the date of the termination of
Employee’s employment.  “Restricted Area”
means any country in which Company conducts a Restricted Business on the date
of the termination of  Employee’s
employment with Company.  “Confidential
Information” means any and all information developed by
or for the Company or Tier of which the Employee gained knowledge by reason
of  Employee’s employment with the
Company or Tier under this Agreement that is not generally known in the
industry in which the Company or Tier is or may become engaged.  Confidential Information includes, but is not
limited to, any and all information developed by or for the Company or Tier or
customers of the Company or Tier, concerning plans, marketing and sales
methods, materials, processes, business forms, procedures, devices used by the
Company or Tier or contractors or customers with which the Company or Tier has
dealt during the period of employment, plans for development of new products,
services and expansion into new areas or markets, internal operations and any
trade secrets and proprietary information of any type owned by the Company or
Tier together with all written, graphic and other materials relating to all or
any part of the same.


3.5          Remedies.


 


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(a)           Injunctive Relief.  Employee acknowledges and agrees that the
covenants and obligations contained in Sections 3.1, 3.2, 3.3 and 3.4 hereof
relate to special, unique and extraordinary matters and that a violation of any
of the terms of said Sections will cause the Company irreparable injury for
which adequate remedy at law is not available. 
Therefore, Employee agrees that the Company shall be entitled to an
injunction, restraining order, or other equitable relief from any court of
competent jurisdiction, restraining the Employee from committing any violation
of such covenants and obligations.


(b)           Remedies
Cumulative.  The
Company’s rights and remedies in respect of this Section are cumulative and are
in addition to any other rights and remedies the Company may have at law or in
equity.


4.             MISCELLANEOUS


 


4.1          Notices.  Any written notice, required or permitted
under this Agreement, shall be deemed sufficiently given if either hand
delivered or by fax (with written confirmation of receipt) or nationally
recognized overnight courier.  Written
notices must be delivered to the receiving party at its address or facsimile
number on the signature page of this Agreement.  The parties may change the address or facsimile number at which
written notices are to be received in accordance with this Section.


4.2          Indemnification.  The Company shall indemnify
Employee (including his heirs, executors and administrators) to the fullest
extent permitted by law for any and all costs, liabilities, judgments, damages
and expenses incurred by Employee that arise out of, are in connection with or
are related to Employee’s actions or inactions in his performance of his duties
hereunder as an employee, director or committee member or fiduciary of the
Company or any subsidiary or benefit plan thereof and his service prior to the
Effective Date as an employee, director or committee member or fiduciary of the
Company or any subsidiary or benefit plan thereof, that are not covered or
actually paid by the Company’s directors’ and officers’ liability insurance
policies.  The Company shall, within ten
(10) days of presentation of invoices, reimburse Employee (including his heirs,
executors and administrators, as applicable) for all legal fees and
disbursements incurred by the Employee in connection with any potentially
indemnifiable matter.  To the extent
permitted by applicable law, the Company shall, upon the request of Employee,
advance to Employee such amounts as necessary to cover expenses, including
without limitation legal fees and expenses, incurred by the Employee in
connection with any suit or proceeding in which Employee may be involved by
reason of his being or having been a director or officer of the Company or of
any subsidiary thereof.


4.3          Arbitration.  All parties agree that to
the fullest extent permitted by law, any and all controversies between them,
including whether any termination is with or without cause shall be submitted
for resolution to binding arbitration. 
This means that all parties agree that arbitration shall be their
exclusive forum for resolving disputes between them.  All parties expressly waive their entitlement, if any, to have
controversies between them decided by a court or jury.


4.4          Prevailing
Party.  If any dispute arises between
the parties hereto concerning this Agreement or their respective rights, duties
and obligations hereunder, the party


 


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prevailing in such proceeding shall be
entitled to reasonable attorney’s fees and costs, in addition to any other
relief that may be granted.


4.5          Assignment.  The Employee may not assign,
transfer or delegate his rights or obligations hereunder, and any attempt to do
so shall be void.  This Agreement shall
be binding upon and shall inure the benefit of the Company and its successors
and assigns.


4.6          Entire
Agreement.  This
Agreement contains the entire agreement of the parties hereto with respect to
the subject matter hereof, and all other prior agreements, written or oral, are
hereby merged herein and are of no further force or effect.  This Agreement may be modified or amended
only by a written agreement that is signed by the Company and the
Employee.  No waiver of any section or
provision of this Agreement shall be valid unless such waiver is in writing and
signed by the party against whom enforcement of the waiver is sought.  The waiver by the Company of any section of provision
of  this Agreement shall not apply to
any subsequent breach of this Agreement. 
Captions to the various Sections of this Agreement are for the
convenience of the parties only and shall not affect the meaning or
interpretation of this Agreement.  This
Agreement may be executed in several counterparts, each of which shall be
deemed an original, but together they shall constitute one and the same
instrument.


4.7          Severability.  The provisions of this Agreement shall be
deemed severable, and if any part of any provision is held illegal, void or
invalid under applicable law, such provision may be changed to the extent
reasonably necessary to make the provision, as so changed, legal valid and
binding.  If any provision of this
Agreement is held illegal, void or invalid in its entirety, the remaining
provisions of this Agreement shall not in any way be affected or impaired but
shall remain binding in accordance with their terms.


4.8          Continuing
Obligations.  The
provisions contained in Sections 2.2, 3, 4.2, 4.3, 4.7, 4.8 and 4.9 of this
Agreement shall continue and survive the termination of this Agreement.


4.9          Applicable
Law.  This Agreement and the rights
and obligations of the Company and the Employee hereunder shall be governed by
and construed and enforced under the laws of Connecticut, without reference to
any principles of conflict of laws.


IN WITNESS
WHEREOF, the parties here to have executed this Agreement as
of the date first above written


	
   

  	
   

  	
  OFFICIAL
  PAYMENTS CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Laura B. DePole

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Print Name:

  	
   

  	
  Laura B. DePole

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  	
  Secretary/Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Michael P. Presto

  
	
   

  	
   

  	
  Michael
  P. Presto

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile:

  	
   

  	
   

  
															



 


 


 


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EXHIBIT A


RELEASE
AND WAIVER OF CLAIMS


In consideration of the
payments and other benefits set forth in Section 2.2 of the Employment
Agreement dated August 1, 2002, to which this form is attached, I, Michael P.
Presto, hereby furnish Official Payments Corporation and Tier Technologies, Inc
(collectively “the Companies”), with the following release and waiver (the “Release and Waiver”).


 


I hereby release, and
forever discharge the Companies, its officers, directors, agents, employees,
stockholders, successors, assigns, affiliates, parent, subsidiaries, and
benefit plans, of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys’ fees, damages, indemnities and obligations
of every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising at any time prior
to and including my employment termination date with respect to any claims,
including but not limited to those claims relating to my employment and the
termination of my employment; including, but not limited to, claims pursuant to
any federal, state or local law relating to employment, including, but not
limited to, discrimination claims, claims under any local statute governing
discrimination, and the Federal Age Discrimination in Employment Act of 1967,
as amended (“ADEA”),
or claims for wrongful termination, breach of the covenant of good faith,
contract claims, tort claims and wage or benefit claims, including, but not
limited to, claims for salary, bonuses, commissions, stock, stock options,
vacation pay, fringe benefits, severance pay or any form of compensation.


 


I also acknowledge that I
have read and understand Section 1542 of the California Civil Code or any
comparable statute under any other state, which reads as follows: “A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially affected his
settlement with the debtor.” 
I hereby  expressly waive and
relinquish all rights and benefits under that section and any law of any jurisdiction
of similar effect with respect to any claims I may have against the Companies.


 


I acknowledge that, among
other rights, I am waiving and releasing any rights I may have under ADEA, and
that this Release and Waiver is knowing and voluntary.  I further acknowledge that I have been
advised, as required by the Older Workers Benefit Protection Act, that:  (a) the Release and Waiver granted herein
does not relate to claims which may arise after this Release and Waiver is
executed; (b) I have the right to consult with an attorney prior to executing
this Release and Waiver (although I may choose voluntarily not to do so); and
if I am over 40 years of age upon execution of this Release and Waiver:  (c) I have twenty-one (21) days from the
date of termination of my employment with the Company in which to consider this
Release and Waiver (although I may choose voluntarily to execute this Release
and Waiver earlier); (d) I have seven (7) days following the execution of this
Release and Waiver to revoke my consent to this Release and Waiver; and (e)
this Release and Waiver shall not be effective until the seven (7) day
revocation period has expired.


 


Date:_____________________                      By:  ____________________________


 


Print
Name:  ______________________


 


 


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