**Exhibit 10.2**

 

**CHANGE INCONTROL SEVERANCE PAY AGREEMENT**

 

                **THISSEVERANCE PAY AGREEMENT** is made as of May 13, 2009, by andbetween Goldleaf Financial Solutions, Inc., a Tennessee corporation(hereinafter the “Company”), and Daniel Owens, a resident of the State ofGeorgia (the “Employee”).

 

                WHEREAS, the Company previouslyhas employed the Employee, either directly or through a wholly ownedsubsidiary; and

 

                WHEREAS, the Company recognizesthat the Employee’s contribution to the Company’s growth and success has beenand continues to be substantial;

 

                WHEREAS, the Company wishes toencourage the Employee to remain with and devote full time and attention to thebusiness affairs of the Company and wishes to provide income protection to theEmployee for a period of time in the event of a Change in Control of theCompany;

 

                **NOW,THEREFORE**, in consideration of the mutual promises, covenants andagreements made herein, the parties, intending to be legally bound hereby,agree as follows:

 

                1.             Severance Pay.

 

                                A.            In the event there is a “Change inControl” of the ownership of the Company, and if (i) the Company withinsix (6) months preceding such Change of Control, terminates Employee’semployment (or Employee resigns in such period and delivers notice to theCompany that such resignation constitutes a constructive discharge), (ii) theCompany within twelve (12) months following such Change in Control, terminatesEmployee’s employment,   or (iii) Employee,upon not less than ninety (90) days prior written notice, terminates hisemployment, then Employee shall be entitled to receive as a severance paymentin a lump sum an amount equal to 100% of his annual base salary (not includingincentive compensation or benefits).  Inaddition, any earned but unpaid base salary, unpaid incentive compensation fromprior years, and accrued vacation will be paid.

 

                                B.            A “Change in Control” shall bedeemed to have occurred if (i) a tender offer shall be made andconsummated for the ownership of more than 50% of the outstanding voting securitiesof the Company, (ii) the Company shall be merged or consolidated (or agreeto be merged or consolidated) with another entity and as a result of suchmerger or consolidation less than 50% of the outstanding voting securities ofthe surviving or resulting entity shall be owned in the aggregate by the formershareholders of the Company, as the same shall have existed immediately priorto such merger or consolidation, (iii) the Company shall sell all orsubstantially all (or agree to sell all or substantially all) of its assets toanother entity that is not a wholly-owned subsidiary,  (iv) a person, within the meaning of Section 3(a)(9) orof Section 13 (d)(3) (as in effect on the date hereof) of theSecurities and Exchange Act of 1934 (“Exchange Act”), shall acquire more than50% of the outstanding voting securities of the Company (whether directly,indirectly, beneficially or of record), or (v) the individuals who, as ofthe date of this Agreement, are members of the Board (the “Incumbent Board”)cease for any reason to constitute 

 

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at least amajority of the Board; provided, however, that if the election or nominationfor election by the Company’s stockholders of any new director was approved byat least two-thirds of the Incumbent Board, such new director shall, forpurposes of this Agreement, be considered a member of the Incumbent Board;provided, further that notwithstanding any such two-thirds approval of theIncumbent Board, any such new director shall not be considered a member of theIncumbent Board if, within two years of such director’s initial election to theBoard, any person nominates an alternative slate of directors to any slate setforth by the Incumbent Board.  Forpurposes hereof, ownership of voting securities shall take into account andshall include ownership as determined by applying the provisions of Rule 13d-3(d)(1)(i) (asin effect on the date hereof) pursuant to the Exchange Act.

 

                2.             Compliance Programs.  The Employee will at all times while employedwith the Company comply fully with the Company’s “Guidelines of CompanyPolicies and Conduct” and any other compliance program, as such programs may beamended from time to time, and acknowledges that his obligations under suchprograms as an employee are contractual in nature.

 

                3.             Confidential Information.

 

                                A             As used in this Agreement, the term“Confidential Information” means all technical and non-technical information ofGoldleaf or its customers, vendors or business partners, regardless of themedia or manner in which it is stored or conveyed to Employee, that relates tothe business of Goldleaf or its customers, vendors or business partners, andthat (a) Goldleaf has taken reasonable measures under the circumstances toprotect from unauthorized use or disclosure, or (b) which would under thecircumstances appear to a reasonable person to be confidential orproprietary.  Confidential Informationincludes information Employee learns or develops in connection with hisemployment with Goldleaf, including, but not limited to; product information,plans, specifications, designs and pricing; non-public financial information,including forecasts, budgets and data; marketing and advertising plans, budgetsand studies; business strategies; the identities of the key decision makers at Goldleaf’scustomers, vendors or other business partners; the particular needs andpreferences of Goldleaf’s customers or other business partners, and Goldleaf’sapproaches and strategies for satisfying those needs and preferences;contracts, credit procedures and terms; research and development plans;software; hardware; employment and personnel information (including, withoutlimitation, the names, addresses, compensation, specific capabilities, andperformance evaluations of Goldleaf personnel; information regarding, and used,in employee training; and information relating to employee stock ownership orentitlement); information relating to Goldleaf stock or assets or proposed orongoing acquisitions or takeovers by or on behalf of Goldleaf; and know-how.  The foregoing are only examples ofConfidential Information.  If Employee isuncertain as to whether any particular information or material constitutesConfidential Information, he shall ask his direct supervisor or, if no longeremployed by Goldleaf, Goldleaf’s then General Counsel.

 

                                B.            Confidential Information does notinclude information that can be shown by competent proof (a) was generallyknown to the relevant public at the time of disclosure, or became generallyknown after disclosure to me without breach of this Agreement; (b) waslawfully received by Employee from a third party who was not under suchrestrictions; (c) was known to Employee without such restrictions prior toits receipt from Goldleaf; (d) was independently developed by Employee outsidethe scope of his employment or independent third 

 

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parties; or (e) is required tobe disclosed pursuant to judicial order or other compulsion of law, but only asrequired by such order and provided that Employee provides to Goldleaf promptnotice of any efforts to obtain such order and comply with any protective orderimposed on such disclosure.

 

                                C.            Employee acknowledges and agreesthat in the course of his employment with Goldleaf, he may gain access toGoldleaf’s Confidential Information, that Confidential Information consists ofvaluable, special and unique assets of Goldleaf and its affiliates’ businesses,and that access to such Confidential Information is granted only for thepurpose of enabling Employee to perform duties for Goldleaf.

 

                                D.            Employee agrees that both during andfollowing the termination of employment with Goldleaf for any reason, he shallhold in confidence all Confidential Information of Goldleaf furnished byGoldleaf, or reproduced or developed by Employee.  Employee agrees that, except with Goldleaf’sprior written permission or in furtherance of his duties for Goldleaf, he shallnot, directly or indirectly, use, disclose, reproduce, distribute, reverseengineer, or otherwise misappropriate any Confidential Information, in whole orin part.  Upon termination of employmentwith Goldleaf for any reason, or upon any earlier request by Goldleaf, Employeeshall promptly return to Goldleaf or destroy all documents or materials, of anynature, in my possession, custody or control containing ConfidentialInformation (regardless of the medium in which such information is stored) thathave been furnished by Goldleaf to him, or reproduced or developed by him.

 

                                E.             This Agreement (a) does not inany way restrict my right or the right of Goldleaf to terminate my employment, (b) inuresto the benefit of successors and assigns of Goldleaf, and (c) is bindingupon my heirs and legal representatives. Goldleaf shall have the right toenforce this Agreement and any of its provisions by injunction, specificperformance or other equitable relief, without bond and without prejudice toany other rights and remedies that Goldleaf may have for a breach of thisAgreement.

 

                4.             General Release. As a condition to the payment described in Section 1 above,Employee shall be required to execute a General Release in reasonable formwhereby Employee fully and forever releases the Company, its successors,assigns, affiliates, insurers, officers, directors, employees and agents, fromany and all liability, causes of action, suits, damages, claims and demandswhatsoever that Employee may have and that arise from or relate in any way tohis employment with the Company or the conduct of the Company’s businessthrough the date thereof.  Any suchrelease shall also include a similarly situated release from the Company toEmployee.

 

                5.             Successors and Assigns.  The provisions hereof shall inure to thebenefit of and be binding upon the permitted successors and assigns of theparties hereto.

 

                6.             Non-Assignability by the Employee.  Notwithstanding anything to the contrary setforth herein, the rights and obligations of the Employee hereunder are notassignable.

 

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                7.             Governing Law. This Agreement shall be interpreted under, subject to and governed bythe laws of the State of Georgia and all questions concerning its validity,construction, and administration shall be determined in accordance thereby.

 

                8.             Waivers. The waiver of a breach by either party of a term or provision of thisAgreement, at any time or times, shall not be deemed or construed to be awaiver of any subsequent breach or breaches of the same or of any other termsor provisions of this Agreement at any time or times.

 

                9.             Invalidity. The invalidity or unenforceability of any provision of this Agreementshall not affect any other provision hereof, and this Agreement shall beconstrued in all respects as if such invalid or unenforceable provision wasomitted.  Furthermore, in lieu of suchillegal, invalid or unenforceable provision there shall be added automaticallyas a part of this Agreement a provision as similar in terms to such illegal,invalid or unenforceable provision as may be possible and be legal, valid andenforceable.

 

                10.           Exclusiveness. This Agreement constitutes the entire understanding and agreementbetween the parties with respect to the employment or severance arrangements ofthe Employee and supersedes any and all other agreements, oral or written,between the parties.  This Agreementreplaces any prior change of control agreements between the parties.  No waiver, modification, or amendment to thisAgreement shall be valid unless the same be reduced to writing and signed bythe parties hereto.

 

                11.           Modification. This Agreement may not be modified or amended except in writing signedby the parties.  No term or condition ofthis Agreement will be deemed to have been waived except in writing by theparty charged with waiver.  A waivershall operate only as to the specific term or condition waived and will notconstitute a waiver for the future or act on anything other than that which isspecifically waived.

 

                12.           Consolidation, Merger or Sale of Assets.  Nothing in this Agreement shall preclude orotherwise restrict the Company from consolidating or merging into or with, ortransferring all or substantially all of its assets to, another individual,entity or business that assumes this Agreement and all obligations of theCompany hereunder.

 

[*Signatures on the following page*.]

 

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                **IN WITNESSWHEREOF**, the parties have executed this Agreement as of the datefirst above written.

 
|   | **“COMPANY”**            |
|--------|------------------------------------|
|   |                               |
|   | GOLDLEAF FINANCIAL SOLUTIONS, INC. |
|   |                               |
|   | By:                                | /s/Gregory Lynn Boggs |
|   | Title:                             | President/CEO |
|   |                               |
|   |                               |
|   | **“EMPLOYEE”**           |
|   |                               |
|   | /s/Daniel Owens                    |
|   | Daniel Owens                       |

 

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