Exhibit 10.6


 


AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


This Amended
and Restated Employment Agreement (the “Agreement”) is made effective as of April 22,
2008 by and between Goldleaf Financial Solutions, Inc., a Tennessee
corporation (the “Company”), and Henry M. Baroco (the “Executive”).


 


WHEREAS,
the Company and the Executive entered into an employment agreement on July 1,
2004 which was amended on October 21, 2005, and the Company and the
Executive now desire to amend and restate that employment agreement in its
entirety.


 


NOW
THEREFORE, in consideration of the mutual covenants
contained in this Agreement, the parties hereby agree as follows:


 


SECTION I

EMPLOYMENT


 


The Company
desires to employ the Executive, and the Executive agrees to be employed by the
Company upon the terms and conditions provided in this Agreement.


 


SECTION II

POSITION AND RESPONSIBILITIES


 


During the
Period of Employment, as such term is defined herein below, the Executive
agrees to serve as President- RMSA Division of the Company and to be
responsible for such duties as may be assigned to Executive by the Chief
Executive Officer of the Company.


 


SECTION III

TERMS AND DUTIES


 


A.            Period of Employment.


 


The period of
Executive’s employment under this Agreement began as of July 1, 2004, and
continued through June 30, 2006 (the “Initial Term”) and thereafter has
continued on annual basis through the date hereof and will continue subject to
extension or termination as provided in this Agreement (“Period of Employment”).  The Period of Employment automatically
extends through April 22, 2010 and for additional one-year periods
thereafter unless either party gives written notice at least one hundred eighty
(180) days in advance of the expiration of the then current Period of
Employment of such party’s intent not to extend the Period of Employment for an
additional year.


 


B.            Duties.


 


During the
Period of Employment, the Executive shall devote substantially all of his
business time, attention and skill to the business and affairs of the Company’s
RMSA division; provided, however, that it shall not be a violation of this
Agreement for the Executive to (i) devote reasonable periods of time to
charitable and community activities and, with the approval of the Company,
industry or professional activities, and/or (ii) manage personal business
interests and investments, so long as such activities do not interfere with the
performance of the


 

















 


Executive’s responsibilities under this Agreement..  The Executive will perform faithfully the
duties that may be reasonably assigned to him by the chief executive officer of
the Company.  The Executive shall report
directly to the chief executive officer of the Company.


 


SECTION IV

COMPENSATION


 


For all
services rendered by the Executive in any capacity during the Period of
Employment, the Executive shall be compensated as follows:


 


A.            Base Salary.


 


The Company shall pay the Executive an annual
base salary (“Base Salary”) of Two Hundred Ten Thousand Dollars ($210,000) for
the first year following the execution date of this Agreement, with increases,
if any, thereafter as determined by the chief executive officer in his sole
discretion.  The Base Salary shall be
payable according to the customary payroll practices of the Company, but in no
event shall the payments be made less frequently than on a monthly basis.  Executive’s Base Salary in subsequent years
shall not be reduced by the Company.


 


B.            Annual Incentive Award.


 


The Company
and Executive shall mutually agree upon annual incentive compensation targets
and criteria for annual incentive awards (the “Annual Incentive Award”).


 


C.            Benefits.


 


The Company shall provide Executive during the Term any additional
compensation and benefits plans or programs maintained by Company from
time-to-time in which other senior executives of Company participate on terms
comparable to those applicable to such other executives commensurate with
Executive’s position with Company.  
These benefits currently consist of: four weeks annual vacation;
provision of cell phone and other electronic communications devices (including
payment for monthly and usages fees related thereto); participation in Company
retirement plans; and Company paid insurance benefits described on the attached
Schedule A.


 


SECTION V

BUSINESS


 


The Company
and Executive shall mutually agree upon the location from which Executive shall
perform duties hereunder. The Company shall reimburse the Executive for all
reasonable travel, accommodations and other expenses incurred by the Executive
in connection with the performance of his duties and obligations under this
Agreement wherever they may arise.


 


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SECTION VI

DISABILITY


 


A.            Effect of Disability.


 


In the event
of disability of the Executive during the Period of Employment, the Company
will continue to pay the Executive according to the compensation provisions of
this Agreement during the period of his disability, until such time as
Executive’s long-term disability insurance benefits are available.  However, in the event the Executive is
disabled for a continuous period of six (6) months after the Executive
first becomes disabled, the Company may terminate the employment of the
Executive.  In this case, normal
compensation will cease except for any and all payments and/or benefits to be
made available to Executive and Executive’s spouse under Section XII of
this Agreement, earned but unpaid Base Salary and Annual Incentive Awards,
which awards would be payable on a prorated basis for the year in which the
disability occurred, and all other unpaid benefits to which he is otherwise
entitled under any plan, policy or program of the Company applicable to
Executive as of the date of Termination.


 


B.            Obligations During Disability.


 


During the
period the Executive is receiving payments of either regular compensation or
disability insurance described in this Agreement and as long as he is
physically and mentally able to do so, the Executive shall furnish information
and assistance to the Company and from time to time will make himself available
to the Company to undertake assignments consistent with his prior position with
the Company and his physical and mental health. 
If the Company fails to make a payment or provide a benefit required as
part of the Agreement, the Executive’s obligation to fulfill information and
assistance will end.


 


C.            Definition of Disability.


 


The term “disability”
will have the same meaning as under any disability insurance provided pursuant
to this Agreement or otherwise.


 


SECTION VII

DEATH


 


In the event
of the death of the Executive during the Period of Employment, the Company’s
obligation to make payments under this Agreement shall cease as of the date of
death, except for any and all payments and/or benefits to be made available to
Executive and Executive’s spouse under Section XII of this Agreement,
earned but unpaid Base Salary and the Annual Incentive Award, which will be
paid on a prorated basis for that year in which the death occurred, and all
other unpaid benefits to which he is otherwise entitled under any plan, policy
or program of the Company applicable to Executive as of the date of
Termination.


 


SECTION VIII

EFFECT OF TERMINATION OF EMPLOYMENT


 


A.            Payments Upon a Without Cause
Termination.


 


If the
Executive’s employment terminates due to a Constructive Discharge or a Without
Cause Termination, or a Voluntary Termination following a change in control of
the RMSA division (each as defined later in Paragraph D below), the Company
shall pay (no later than thirty (30) days following such Constructive Discharge
or Without Cause Termination) the


 


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Executive in a lump sum upon such Termination or Constructive Discharge
an aggregate amount equal to the sum of (i) two hundred percent (200%) of
his Base Salary as in effect at the time of such termination, plus (ii) one
hundred percent (100%) of the average of his Annual Incentive Awards paid for
the two prior two years.  Any earned but
unpaid Base Salary shall also be paid in a lump sum at the time of termination.
Such termination shall not relieve the Company of its obligations with respect
to any and all payments and/or benefits to be made available to Executive and
Executive’s spouse under Section XII of this Agreement.


 


B.            Payments Upon a Termination for
Cause or a Voluntary Termination.


 


If the
Executive’s employment terminates due to a Termination for Cause or a Voluntary
Termination (other than as set forth in paragraph A above) or if either party
to this Agreement elects not to extend the Period of Employment, earned but
unpaid Base Salary will be paid on a pro-rated basis for the year in which the
termination occurs, all unpaid benefits to which he is otherwise entitled under
any plan, policy or program of the Company applicable to Executive through the
date of Termination will be paid to executive, and no other payments will be
made by the Company to Executive or on behalf of Executive. Notwithstanding the
foregoing, such termination shall not relieve the Company of its obligations
with respect to any and all payments and/or benefits to be made available to
Executive and Executive’s spouse under Section XII of this Agreement.  Upon termination of the Executive’s
employment, the Period of Employment will cease as of the date of the
termination.


 


C.            Treatment of Options.


 


In the event
that Executive’s employment is terminated for any reason by either Company or
Executive (except for a Voluntary Termination by Executive within six months of
the date hereof that is not preceded by a change in control of the Company or
the Company’s RMSA division), then, without further action, all of Executive’s
stock options (“Options”) granted under any stock option program (each and
collectively, the “Plan(s)”) that are vested on the termination date shall
remain exercisable until the date on which each such option would have
terminated had Executive remained employed by the Company, notwithstanding any
provision in any Option or Plan that would otherwise  impose a time limit to exercise (or lose)
such options within a specified time period following the termination. In
furtherance of the prior sentence, the Company will take all necessary actions
to ensure that such options remain exercisable in accordance with the terms of
this Agreement. This paragraph supercedes any provision to the contrary in the
Options or the Plan.


 


D.            Definitions.


 


For this
Agreement, the following defined terms shall have the meanings described below:


 


1.     A “Termination for Cause” means termination
of the Executive’s employment by the Company’s Board of Directors, by written
notice to the Executive specifying the event(s) relied upon for such
termination which must be based on, (i) a willful refusal by Executive to
substantially follow a lawful order of the Board of Directors, subject,
however, to Executive’s right to receive written notice of the order not
followed by Executive and the opportunity to


 


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promptly follow the order; (ii) Executive’s
willful engagement in conduct materially injurious to the business interests of
the Company or any of its subsidiaries and affiliates as a group (as determined
by the Board of Directors in its reasonable judgment); (iii) Executive’s
indictment or conviction for any felony, which in the reasonable judgment of
the Board materially affects Employee’s ability to perform his duties pursuant
to the Agreement; or (iv) Executive’s material breach of his duties,
responsibilities and obligations under this Agreement (except due to Executive’s
incapacity as a result of physical or mental illness) that has not been
corrected or remedied within 60 days after Executive’s receipt of written
notice from the Board specifying such breach; provided, however, (A) such
cure period may be extended if Executive is working diligently to cure such
breach and reasonably needs an extension to effect such cure, and (B) no
such cure period will be provided if, in the Board of Directors’ reasonable
judgment, such breach cannot be sufficiently corrected or remedied so as to
avoid any material detriment to the Company.


 


2.     A “Constructive Discharge” means
termination of the Executive’s employment by the Executive due to a failure of
the Company to fulfill its obligations under this Agreement in any material
respect, including (i) a change in geographic location of the
position  without Executive’s prior
consent; (ii) a reduction in Executive’s Base Salary; (iii) a failure
by the Company to require a successor corporation of the Company to honor the
terms of this Agreement; or (iv) any material change by the Company in the
functions, duties, or responsibilities which would reduce the title, ranking or
level, reporting lines, responsibility, importance or scope of the Executive’s
position.  The Executive shall provide
the Company a written notice which describes the circumstances being relied on
for the termination with respect to the Agreement within thirty (30) days after
the event giving rise to the notice.  The
Company will have thirty (30) days to remedy the situation prior to the
termination for Constructive Discharge. Executive and the Company acknowledge
and agree that the execution of this Agreement does not constitute a
Constructive Discharge under the Executive’s prior employment agreement).


 


3.     A “Without Cause Termination” means a
termination of the Executive’s employment (a) by the Company for any
reason other than a Termination for Cause or as a result of the death or
disability of Executive; or (b) by Executive as a result of a Constructive
Discharge.


 


4.     A “Voluntary Termination” means a termination
of the Executive’s employment by the Executive not as a result of a
Constructive Discharge.


 


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SECTION VIIIA

OTHER DUTIES OF THE EXECUTIVE DURING

AND AFTER THE PERIOD OF EMPLOYMENT


 


A.            Cooperation.


 


The Executive
will, with reasonable notice during or after the Period of Employment, furnish
information as may be in his possession and cooperate with the Company as may
reasonably be requested in connection with any claims or legal actions in which
the Company is or may become a party.


 


B.            Confidential Information.


 


The
Executive recognizes and acknowledges that all information pertaining to the
affairs, business, clients, customers or other relationships of the Company, as
hereinafter defined, is confidential and is a unique and valuable asset of the
Company.  Access to and knowledge of this
information are essential to the performance of the Executive’s duties under
this Agreement.  The Executive will not
during the Period of Employment or for an eighteen (18) month period thereafter
except to the extent reasonably necessary in performance of the duties under
this Agreement, give to any person, firm, association, corporation or
governmental agency any confidential information concerning the affairs, business,
clients, customers or other relationships of the Company except as required by
law.  The Executive will not make use of
this type of confidential information for his own purposes or for the benefit
of any person or organization other than the Company.  The Executive will also use his best efforts
to prevent the disclosure of this information by others.  All records, memoranda, and similar documents
relating to the business of the Company whether made by the Executive or
otherwise coming into his possession are confidential and will remain the
property of the Company.  For purposes of
this Agreement “confidential information” does not include (i) information
that is or becomes generally available to the public other than as a result of
disclosure by Executive or by another party in violation of a similar
obligation of confidentiality, (ii) information that is or becomes
available to Executive on a non-confidential basis from a source not subject to
a confidentiality obligation to Company, (iii) information that was in
Executive’s possession on a non-confidential basis prior to Company’s
disclosure to Executive, or (iv) information that is independently
developed by Executive without the use of the confidential information after
the Term.


 


C.            Protection of Company Business
Interests.


 


During the
Period of Employment and for a eighteen (18) month period following termination
of the Period of Employment, so long as the Company is in compliance in all
material respects with its obligations under the Agreement: (i) the
Executive without prior express written approval by the Board of Directors of
the Company shall not directly or indirectly own or hold any Proprietary
Interest (as defined below) in or be employed by or receive compensation from
any party engaged in competition with the business of the Company or the
Company’s product lines as they existed upon termination of the Period of
Employment; (ii) the Executive without express prior written approval from
the Board of Directors, will not solicit any of the then current clients of the
Company or discuss with any employee of the 


 


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Company information related to the operation of any business intended
to compete with the Company; and (iii) the Executive will not directly or
indirectly hire any employee of the Company during the period while such person
is an employee of the Company or for a period of six (6) months thereafter
or solicit or encourage any such employee to leave the employ of the Company.
For the purposes of the Agreement, a “Proprietary Interest” means legal or
equitable ownership, whether through stock holdings or otherwise, of a debt or
equity interest (including options, warrants, rights and convertible interests)
in a business firm or entity, other than ownership of less than 5% of any class
of equity interest in a publicly-held company. 
The Executive acknowledges that the covenants contained herein are
reasonable as to geographic and temporal scope.


 


D.            Non-Disparagement.


 


During the
Period of Employment and following termination of the Period of Employment, the
Executive shall not disparage, verbally or in writing, the Company or any of
its employees, officers, or directors.


 


E.             Remedies.


 


The Executive
acknowledges that his breach or threatened or attempted breach of any provision
of Section VIIIA would cause irreparable harm to the Company not
compensable in monetary damages and that the Company shall be entitled, in
addition to all other applicable remedies, to a temporary and permanent injunction
and a decree for specific performance of the terms of Section VIIIA
without being required to prove damages or furnish any bond or other security.


 


F.             Effect of Breach by the Company.


 


The Executive
shall not be bound by the provisions of Section VIIIA in the event of the
default by the Company in its obligations under this Agreement that are to be
performed upon or after termination of this Agreement that has not been
corrected or remedied within thirty (30) days after Company’s receipt of
written notice from the Executive specifying such default.


 


G.            Scope of Restrictions.


 


If the period
of time or other restrictions specified in this Section should be adjudged
unreasonable at any proceeding, then the period of time or such other
restrictions shall be reduced by the elimination or reduction of such portion
thereof so that such restrictions may be enforced in a manner adjudged to be
reasonable.


 


SECTION IX

INDEMNIFICATION, LITIGATION


 


The Company
shall indemnify the Executive to the fullest extent permitted by the laws of
the state of incorporation in effect at that time, or certificate of
incorporation and bylaws of the Company whichever affords the greater
protection to the Executive.  The
Executive will be entitled to any insurance proceeds related to any award, or
any fees or expenses incurred by Executive in connection with any action, suit
or proceeding brought by a third-party to which he


 


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may be made a party by reason of being a director or an officer of the
Company.  The Company will use its best
efforts to obtain directors and officers liability insurance covering the
Executive in an amount and with terms and provisions reasonably acceptable to
Executive.  In the event the Company
obtains such insurance for any employee, officer, director or affiliate, the
Company shall cause such insurance to cover Executive.


 


SECTION X

CHANGE IN CONTROL


 


A.            Effect
of Change-in-Control.


 


In the event there is a Change in Control (as defined below) and the
obligations of this Agreement are not assumed, the Company shall pay the
Executive the amounts that would be due under this Agreement as if a “Without
Cause Termination” had occurred.


 


B.            Definition of Change-in-Control.


 


A “Change in
Control” shall be deemed to have occurred if (i) a tender offer shall be
made and consummated for the ownership of more than fifty percent (50%) of the
outstanding voting securities of the Company, (ii) the Company shall be merged
or consolidated with another corporation or entity and as a result of such
merger or consolidation less than seventy-five percent (75%) of the outstanding
voting securities of the surviving or resulting corporation or entity shall be
owned in the aggregate by the former shareholders of the Company, as the same
shall have existed immediately prior to such merger or consolidation, (iii) the
Company shall sell all or substantially all of its assets to another
corporation or entity which is not a wholly- owned subsidiary, or (iv) a
person, within the meaning of Section 3(a)(9) or of Section 13(d)(3) (as
in effect on the date hereof) of the Securities and Exchange Act of 1934 (“Exchange
Act”)), shall acquire more than fifty percent (50%) of the outstanding Voting
securities of the Company (whether directly, indirectly, beneficially, or of
record). For purposes hereof, ownership of voting securities shall take into
account and shall include ownership as determined by applying the provisions of
Rule 13d-3(d)(1)(i) (as in effect on the date hereof) pursuant to the
Exchange Act.


 


C.            Excise Tax Indemnification.


 


If the
Internal Revenue Service asserts, or if Executive or the Company is advised in
writing by a nationally recognized accounting firm, that any payment in the
nature of compensation to, or for the benefit of, Executive from the Company
(or any successor in interest) constitutes an “excess parachute payment” under
section 280G of the Internal Revenue Code, whether paid pursuant to this
Agreement or any other agreement, and including property transfers pursuant to
securities and other employee benefits that vest upon a change in the ownership
of effective control of the Company (collectively, the “Excess Parachute
Payments”) the Company shall pay to Executive, on demand, a cash sum sufficient
(on a grossed- up basis) to indemnify Executive and hold him harmless from the
following (the “Tax Indemnity Payment”):


 


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(i)            The
amount of excise tax under section 4999 of the Internal Revenue Code on the
entire amount of the Excess Parachute Payments and all Tax Indemnity Payments
to Executive pursuant to this subsection C;


 


(ii)           The
amount of all estimated local, state, and federal income taxes on all Tax
Indemnity Payments to Executive pursuant to this subsection C (determined in
each case at the highest marginal tax rate); and


 


(iii)          The
amount of any fines, penalties, or interest that have been or potentially will
be, assessed in respect of any excise or income tax described in the preceding
clauses (i) or (ii); so the amounts of Excess Parachute Payments received
by Executive will not be diminished by an excise tax imposed under section 4999
of the Internal Revenue Code or by any local, state, or federal income tax
payable in respect of the Tax Indemnity Payments received by Executive pursuant
to this subsection C.


 


SECTION XI

WITHHOLDING TAXES


 


The Company may directly or indirectly withhold from any payments under
this Agreement all federal, state, city or other taxes that shall be required
pursuant to any law or governmental regulation.


 


SECTION XII

EFFECTIVE PRIOR AGREEMENTS


 


This Agreement contains the entire understanding between the Company
and Executive with respect to the subject matter and supersedes any and all
prior employment or severance agreements between the Company, and its
affiliates, and the Executive. 
Notwithstanding the foregoing, the Company and Executive both hereby
agree to the following and acknowledge that the following obligations shall survive
termination of the Period of Employment:


 


A. For the
period from the Termination Date, which includes termination for any reason
including death and disability, until the date Executive reaches the age
sixty-five (65) (or, with respect to benefits provided to Executive’s spouse,
until the date Executive’s spouse reaches the age sixty-five (65)) (the “Continuation Period”), the Company
shall at its expense on behalf of the Executive and his spouse arrange for the
continuation of the insurance benefits as described on Schedule A.  Nothing provided herein shall be construed to
limit Executive’s post-employment continuation rights under COBRA, and to the
extent any such benefits are continued pursuant to COBRA, the Company shall
periodically reimburse Executive for his out-of-pocket premiums for benefits
continued pursuant to COBRA.  The Company’s
obligation hereunder with respect to the foregoing benefits shall be limited to
the extent that the Executive obtains any such benefits pursuant to a
subsequent employer’s benefit plans, in which case the Company may reduce the
coverage of any benefits it is required to provide the Executive hereunder as
long as the aggregate coverages and benefits of the combined benefit plans is
no less favorable to the Executive than the coverages and benefits required to
be provided hereunder. This Paragraph shall not be interpreted so as to limit
any benefits to which the Executive or his dependents or beneficiaries may be
entitled under any of the Company’s employee benefit plans, programs or 


 


9

















 


practices following the Executive’s termination of employment,
including without limitation, retiree medical and life insurance benefits.


 


SECTION XIII

ASSIGNMENT; CONSOLIDATION, MERGER OR SALE OF ASSETS


 


Neither Company nor Executive may assign any rights or delegate any
obligations under this Agreement without the prior written consent of the other
party; provided that nothing in this Agreement shall preclude the Company from
consolidating or merging into or with, or transferring all or substantially all
of its assets to, another corporation or entity and to assign   this Agreement and all obligations and
undertakings of the Company hereunder in connection therewith without the
consent of Executive.  Upon such a
Consolidation, Merger or Sale of Assets, the term “the Company” as used will
mean the other corporation or entity and this Agreement shall continue in full
force and effect.  This Section XIII
is not intended to modify or limit the rights of the Executive hereunder,
including without limitation, the rights of Executive under Section X.


 


SECTION XIV

MODIFICATION


 


This Agreement may not be modified or amended except in writing signed
by the parties.  No term or condition of
this Agreement will be deemed to have been waived except in writing by the
party charged with waiver.  A waiver
shall operate only as to the specific term or condition waived and will not
constitute a waiver for the future or act on anything other than that which is
specifically waived.


 


SECTION XV

GOVERNING LAW; ARBITRATION


 


This Agreement has been executed and delivered in the State of
Tennessee its validity, interpretation, performance and enforcement shall be
governed by the laws of that state.


 


Any dispute
among the parties hereto shall be settled by arbitration in Nashville,
Tennessee in accordance with the rules then obtaining of the American
Arbitration Association and judgment upon the award rendered may be entered in
any court having jurisdiction thereof.


 


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SECTION XVI

NOTICES


 


All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been made when delivered or
mailed first-class postage prepaid by registered mail, return receipt
requested, or when delivered if by hand, overnight delivery service or
confirmed facsimile transmission, to such addresses as may have been furnished
by one party to the other party in writing.


 


SECTION XVII

BINDING AGREEMENT


 


This Agreement shall be binding on the parties’ successors, heirs and
assigns.


 


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IN WITNESS
WHEREOF, the undersigned have executed this Agreement as of the date first
above written.


 


 


	
   

  	
  GOLDLEAF FINANCIAL SOLUTIONS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ G. Lynn Boggs

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Henry M. Baroco

  
	
   

  	
  Henry M. Baroco

  



 


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Schedule A


 


DESCRIPTION OF INSURANCE BENEFITS


 


During
the Period of Employment or as otherwise agreed to the Company will continue to
provide and pay the insurance premiums listed below:


 


	
  PLAN

  	
   

  	
  COVERED

  PERSONS

  	
   

  
	
  Medical –
  BuyUp Plan

  (Company
  pays deductibles)

  	
   

  	
  Employee + 1

  	
   

  
	
  Dental

  (Company
  pays deductibles)

  	
   

  	
  Employee + 1

  	
   

  
	
  Vision

  (Company pays deductibles)

  	
   

  	
  Employee + 1

  	
   

  
	
  Short Term Disability, Long Term
  Disability,

  AD & D, Group Life

  (Company
  pays deductibles)

  	
   

  	
  Employee
  Only

  	
   

  
	
  Supplemental Income Protection

  (Company pays deductibles)

  	
   

  	
  Employee
  Only

  	
   

  
	
  Voluntary Benefit – Accident, Cancer, 

  Hospital & Intensive Care

  (Company
  pays deductibles)

  	
   

  	
  Employee + 1

  	
   

  



 


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