Exhibit 10.10


 


AMENDED AND RESTATED MANAGEMENT EMPLOYMENT AGREEMENT


 


THIS
AMENDED AND RESTATED MANAGEMENT EMPLOYMENT AGREEMENT (this “Employment
Agreement”) is dated as of September 20, 2010 (“Effective Date”)
by and among NETSPEND CORPORATION, a Delaware corporation (the “Company”),
NETSPEND HOLDINGS, INC., a Delaware corporation (“Holdings”), and
Christopher T. Brown, an individual residing at                          
(the “Executive”).  Certain terms
used herein are defined in Section 7(k) hereof.


 


WITNESSETH:


 


WHEREAS,
the Executive has been employed by the Company pursuant to the terms of that
certain Management Employment Agreement, dated as of November 17, 2006
(the “Prior Agreement”);


 


WHEREAS,
the Company wishes to continue to secure the services of the Executive as
General Counsel of the Company, upon the terms and conditions hereinafter set
forth, and the Executive wishes to continue to render such services to the
Company upon the terms and conditions hereinafter set forth; and


 


WHEREAS,
in consideration of the employment to be provided hereby and the amounts to be
paid as provided herein, the Executive desires to continue to be employed by
the Company and to agree with the Company as further provided herein;


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:


 


1.             Employment by the Company.


 


(a)           Effective as the Effective Date, the Company agrees to continue to
employ the Executive in the position of General Counsel, and the Executive
agrees to continue to perform such duties as the Company’s Chief Executive
Officer and the Board of Directors of the Company (the “Board”), or
either of them, may assign from time to time. During the Term (as hereinafter
defined), the Executive shall report to the Company’s Chief Executive Officer
and shall also have a “dotted line” reporting relationship to the Audit
Committee of the Board.


 


(b)           The Executive agrees to devote his business time and energies to the
business of the Company and to perform his duties hereunder faithfully,
diligently and competently. The Executive, if so requested by the Company, also
shall serve, without additional compensation, as an officer, director or
manager of any of the Company’s Subsidiaries. During the Term, the Executive
shall not engage in any business activity which, in the reasonable judgment of
the Company’s management or the Board, conflicts with the duties of the
Executive hereunder, whether or not such activity is pursued for gain, profit
or other pecuniary advantage.


 


2.             Term of Employment.  Unless otherwise mutually agreed upon by the
parties hereto, the term of this Employment Agreement (the “Term”) shall
be for the period commencing on the Effective Date and ending on the first (1st) anniversary of the
Effective Date, 


 

















 


unless the Executive’s employment is earlier
terminated as provided in Section 4 hereof.  This Employment Agreement shall automatically
renew for additional one (1) year terms beginning on the first (1st) anniversary of the
Effective Date and on each subsequent anniversary thereof (each, an “Expiration
Date”) unless (i) the Executive notifies the Company in writing of his
intention to terminate his employment pursuant to this Employment Agreement at
least thirty (30) days prior to the applicable Expiration Date or (ii) the
Company notifies the Executive in writing of its intention to terminate his
employment pursuant to this Employment Agreement at least thirty (30) days
prior to the applicable Expiration Date.


 


3.             Compensation.  As full compensation for all services to be
rendered by the Executive to the Company and its Affiliates in all capacities,
the Executive shall receive the following compensation and benefits during the
Tem:


 


(a)           Salary.  During the Term, the Executive shall be
entitled to receive a base salary of $325,000.00 (the “Base Salary”),
payable not less frequently than semimonthly in accordance with the
then-customary payroll practices of the Company.  The Base Salary and the Executive’s
performance shall be reviewed for increase (but not decrease) by the
Compensation Committee of the Board (the “Compensation Committee”) at
least annually during the Term. Notwithstanding the foregoing, the Company
shall not be obligated to increase the Base Salary during the Term.


 


(b)           Bonus.  The Executive shall be eligible to
participate in the bonus program of the Company now or hereafter maintained by
the Company (the “Bonus Program”), subject to the terms and conditions
of such Bonus Program; provided that the Executive shall be eligible to earn a
bonus of up to 60% of the Base Salary at 100% target (“Target Bonus”), with a
maximum bonus of 90% of the Base Salary. 
For purposes of clarification, the Board may elect to eliminate or
modify any Bonus Program at any time during the Term.


 


(c)           Participation in Executive Benefit Plans: Other Benefits.


 


(i)            The Executive shall be permitted during the Term, if and to the extent
eligible, to participate in employee benefit plans now or hereafter maintained
by the Company and/or Holdings (including any stock option plan) and generally
provided to the Company’s and/or Holdings’ executives; provided, however,
that the Company shall pay the full cost of health insurance coverage for
Executive and his eligible dependents once Executive is eligible for such
coverage.  In addition, following the
effective date of Executive’s coverage under the Company’s employee benefit
program, the Company shall, at the Company’s expense, provide Executive with
coverage under: (i) an executive life insurance policy with a benefit
equal to eight (8) times Base Salary and Target Bonus; and, (ii) an
executive disability policy with a benefit equal to sixty percent (60%) of his
monthly Base Salary at the date of disability, less any amounts received
through the Company’s disability policy in effect for non-executive employees,
up to a maximum of $15,000 per month for all disability benefits received,
subject to, in each case, Executive’s prompt completion of the required
application forms and approval process with the selected insurance company or
companies, and not being rated in other than a standard risk category.  The Company will also maintain employed
lawyers insurance coverage (or other similar coverage) in reasonable and
appropriate amounts during the Term.


 


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(ii)           Nothing in this Employment Agreement shall preclude the Company and/or
Holdings, as the case may be, from terminating or amending any employee benefit
plans or coverage under any such plans so as to eliminate, reduce or otherwise
change any benefit payable thereunder, so long as such change similarly affects
all Company and/or Holdings executives and such change does not adversely
affect the Executive’s rights with respect to any options then outstanding
under the Holdings stock option plan or any other equity plan of Holdings
(without the Executive’s prior written consent).


 


(d)           Expenses.  The Company shall pay or reimburse the
Executive for all reasonable and necessary expenses actually incurred or paid
by the Executive during the Term in the performance of the Executive’s duties
under this Employment Agreement, upon submission and approval of expense
statements, vouchers or other supporting information in accordance with the
then-customary practices of the Company, including without limitation Texas
State Bar dues, Texas Attorney Occupation Tax, and the reasonable costs of
continuing legal education and membership in professional associations.


 


(e)           Location of Employment.  The principal location of the Executive’s
employment hereunder shall be at the Company’s principal executive offices
located in Austin, Texas.


 


(f)            Vacation.  The Executive shall be entitled to up to four
(4) weeks of personal time off (“PTO”), which shall include,
without limitation, vacation and sick leave.


 


(g)           Withholding of Taxes.  The Company may withhold from any
compensation or benefits payable under this Employment Agreement all federal,
state, city and other taxes as shall be required pursuant to any law or
governmental regulation or ruling.


 


4.             Termination.


 


(a)           Termination upon Death.  If the Executive dies during the Term, the
Term shall terminate as of the date of his death.


 


(b)           Termination upon Disability.  If during the Term the Executive becomes
physically or mentally disabled, whether totally or partially, so that the
Executive is unable to perform his essential job functions hereunder, with or
without, reasonable accommodation in accordance with the Americans With
Disabilities Act, as determined by the Board in its good faith judgment, for:
(i) a period of one hundred twenty (120) consecutive days; or (ii) for
shorter periods aggregating one hundred fifty (150) days during any
twelve-month period, the Company, by written notice to the Executive, may
terminate the Executive’s employment, in which event the Term shall terminate
ten (10) days after the date upon which the Company shall have given
notice to the Executive of its intention to terminate the Executive’s
employment because of the disability. 
Nothing in this Section 4(b) shall be deemed to extend
the Term.


 


(c)           Termination for Cause.  If (i) the Executive commits any felony
or other offense involving moral turpitude or any crime relating to his
employment, (ii) the Executive violates this Employment Agreement, in any
material respect, and fails to cure such violation within fourteen (14) days
after reasonable notice of such conduct, (iii) the Executive commits any
act of fraud, theft or personal dishonesty with respect to the Company or any
Subsidiary or 


 


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otherwise detrimental to
the Company or any Subsidiary, (iv) the Executive performs his duties
hereunder, in the good faith opinion of the Board, in a grossly negligent
manner or with willful malfeasance, (v) the Executive repeatedly fails to
observe material Company policies applicable to executives of the Company, (vi) the
Executive violates any state or federal law relating to sexual harassment or
age, sex or other prohibited discrimination, or (vii) Executive fails at
any time to be a member in good standing of the bar of the State of Texas,
other than as a result of a disability (the foregoing clauses (1) through
(vii) being referred to herein collectively as “Cause”), then the
Company, at any time by written notice to the Executive, may terminate the
employment of the Executive for Cause, which notice shall set forth the reasons
for the Company’s terminating the Executive’s employment for Cause, and
terminate the Term and Executive’s employment pursuant to this Employment
Agreement effective as of the date of such notice and, except as provided in Section 5(b) hereof,
the Executive shall have no right to receive any compensation or benefit
hereunder on and after the date of such notice.


 


(d)           Termination without Cause.  The Company may terminate the Term at any
time, without Cause, upon thirty (30) days’ written notice by the Company to
the Executive and, except as provided in Section 5(a) hereof,
the Executive shall have no right to receive any compensation or benefit
hereunder after such termination.  The
Executive’s termination of employment on any Expiration Date following notice
by the Company to the Executive of the Company’s intention to terminate this
Employment Agreement on such Expiration Date, as provided in Section 2
hereof, shall constitute a termination without Cause hereunder.


 


(e)           Termination for Good Reason.  The Executive may terminate the Term at any
time with Good Reason (as hereinafter defined), upon thirty (30) days’ written
notice by the Executive to the Company (which notice shall be received by the
Company no later than thirty (30) days following the occurrence of any of the
events set forth in clauses (i) or (ii) below) and, except as
provided in Section 5(a) hereof, the Executive shall have no
right to receive any compensation or benefit hereunder after such
termination.  For purposes of this
Employment Agreement, “Good Reason” shall mean, without the Executive’s
written consent: (i) the Company violates this Employment Agreement in any
material respect, including, without limitation, failure of the Company to pay
or provide to the Executive the Base Salary or any reduction in the Base Salary
or any downward change in the Target Bonus (it being understood by the
Executive that the Board may elect not to maintain a Bonus Program at any time
during the Term and that the Company is not obligated to pay the Executive any
Bonus hereunder); (ii) the Company makes a material reduction in the
Executive’s duties as General Counsel as provided in Section 1(a) hereof,
other than by reason of the expiration of the Term or a termination of the Term
pursuant to Sections 4(a), 4(b), 4(c) or 4(d) hereof;
or (iii) the sale or other transfer of all or substantially all of the
assets of the Company to a corporation or other entity in a transaction in
which such corporation or other entity does not assume all of the obligations
of the Company hereunder. Notwithstanding anything contained herein to the
contrary, Good Reason shall not be deemed to exist unless the Company fails to
cure the event giving rise to Good Reason within ten (10) days after
receipt of written notice thereof given by the Executive to the Company, which
notice shall specifically set forth the nature of such event and the corrective
action reasonably sought by the Executive.


 


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5.             Severance Payments.


 


(a)           Certain Severance Payments.  If during the Term the Company terminates the
Term pursuant to Section 4(d) hereof or the Executive
terminates the Term pursuant to Section 4(e) hereof, all
compensation payable to the Executive under Section 3 hereof shall
cease as of the date of termination of the Tern specified in the Company’s or
Executive’s notice, as the case may be (the “Termination Date”), and,
subject to the final sentence of this Section 5(a), the Company
shall pay to the Executive, subject to Sections 5(c), 6 and 7(e) hereof,
the following sums: (i) an amount equal to the sum of (a) the Base
Salary, as in effect on the Termination Date, payable over the twelve (12)
month period following the Termination Date (the “Severance Period”) and
(b) an amount equal to the Target Bonus, payable in a lump-sum within five
(5) Business Days following the Termination Date; (ii) benefits under
group health insurance plans in which the Executive participated prior to
termination through the earlier of (x) the end of the Severance Period and
(y) the date upon which the Executive commences employment with any other
Person; (iii) all accrued and unpaid Base Salary through the Termination
Date; (iv) any accrued but unpaid Bonus in respect of any fiscal year
ending prior to the fiscal year in which the Termination Date falls (which
shall be paid notwithstanding any requirement that the Executive otherwise be
employed by the Company on the date of the payment of such Bonus); (v) any
unpaid or unreimbursed expenses incurred by the Executive through the
Termination Date in accordance with Section 3(d) hereof; and
(vi) to the extent permitted under the applicable plans, programs or
policies, if any, all previously earned, accrued, and unpaid benefits from the
Company and its employee benefit plans, including any such benefits which have
become vested prior to the Termination Date under the retirement plans, and any
other such benefits under disability, and life insurance plans, policies, and
programs applicable to the Company which benefits, if any, shall be payable as
provided therein.  If, prior to the end
of the Severance Period, the Executive violates Section 6 hereof, then the
Company shall have no obligation to make any of the payments that remain
payable by the Company under clauses (i) and (ii) of this Section 5(a) on
or after the date of such violation.


 


(b)           Severance Payments upon Termination for Cause, Resignation, Death or
Disability.  If the Term is terminated by the Company
pursuant to Sections 4(a), 4(b) or 4(c) hereof
or if the Executive terminates the Term other than for Good Reason, the
Executive shall receive only the amounts specified in clauses (iii), (iv), (v) and
(vi) of Section 5(a) hereof.


 


(c)           Eligibility.  Notwithstanding anything contained herein to
the contrary, in order for the Executive to be eligible to receive the
severance payments and benefits provided for in this Section 5, the
Executive will be obligated to execute and deliver to the Company a release
substantially in the form attached hereto as Exhibit A (the “Form of
Release”); provided, however, that the Company shall have the
right to modify the Form of Release as necessary to comply with applicable
law and/or the particular circumstances of termination.


 


(d)           No Mitigation.  The Executive shall not be required to
mitigate the amount of any severance payments provided for in this Section 5
by seeking other employment or otherwise and the amount of any such severance
payments shall not be reduced by any compensation earned as a result of the
Executive’s other employment or otherwise.


 


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6.             Certain Covenants of the
Executive.  To induce
the Company and Holdings to enter into this Employment Agreement, the Executive
covenants and agrees that:


 


(a)           Confidential Information.  During the Restricted Period (as hereinafter
defined) and thereafter, the Executive shall not, directly or indirectly,
disclose to any Person who is not authorized by Holdings and/or the Company to
receive such information, or use or appropriate for his own benefit or for the
benefit of any Person other than Holdings and/or the Company, (i) any
documents or other papers relating to the Company, including, without
limitation, any such information, documents or papers relating to the Company’s
Current Lines of Business (as hereinafter defined) or the customers of the
Company (whether such customers were customers of the Company prior to or after
the date hereof) including, without limitation, files, business relationships
and accounts, royalty relationships, licensing relationships, pricing policies,
customer lists, computer software and hardware or (ii) any other materials
relating to the Company or any trade secrets or confidential information,
including, without limitation, any business or operational methods, know-how,
marketing plans or strategies, product development techniques or plans, product
concepts and designs, business acquisition plans, financial or other
performance data, personnel and other policies of the Company, whether
generated by the Executive or by any other Person and/or whether developed
prior to the date hereof (collectively, “Confidential Information”); provided,
however, that Confidential Information shall not include any information
readily ascertainable from public or published information, or trade sources
(other than as a direct or indirect result of unauthorized disclosure by the
Executive).


 


(b)           Receipt of Confidential Information.  The Executive acknowledges that: (i) the
Company is presently engaged in the marketing, processing and distributing of
prepaid debit cards, stored value cards and other similar products from which
the Company derives substantial revenues (collectively, the “Company’s
Current Lines of Business”); (ii) contemporaneously with the
Executive’s execution of this Employment Agreement, the Company is providing
the Executive with Confidential Information, including, without limitation,
information relating to the Company’s information technology systems, and
related technologies, and information previously or hereafter provided relating
to the Company’s legal affairs and business relationships, and the Company will
continue to provide the Executive with Confidential Information in the future
while the Executive is employed with the Company and Holdings; (iii) the
Executive has received the Confidential Information; (iv) in the
Executive’s position as General Counsel, the Executive will need the
Confidential Information to properly carry out the Executive’s duties
hereunder; (v) the Company’s provision of Confidential Information to the
Executive, in exchange for the Executive’s agreement and covenant to maintain
the confidentiality of the Confidential Information, as set forth in Section 6(a) hereof
gives rise to the Company’s and Holding’s interest in restraining the Executive
from competing against the Company and Holdings as set forth in Sections
6(c), 6(e), 6(f) and 6(g) hereof; (vi) the
Executive’s agreement and covenant not to compete with the Company and Holdings
as set forth in Sections 6(c), 6(e), 6(f) and 6(g) hereof
is designed to enforce the Executive’s agreement and covenant to maintain the
confidentiality of the Confidential Information as set forth in Section 6(a) hereof;
(vii) the agreements and covenants contained in Sections 6(a) through
6(f) hereof (the “Restrictive Covenants”) are essential to
protect the goodwill and profitability of the Company’s Current Lines of
Business; and (viii) the agreements and covenants contained in Sections
6(a) through 6(f) hereof will not involve a substantial
hardship upon the Executive’s 


 


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future livelihood.  Accordingly, the Executive covenants and
agrees for the benefit of Holdings and the Company, with respect to himself, to
comply with the Restrictive Covenants.


 


(c)           Non-Compete.  At all times during the Term and for a period
of one (1) year thereafter (the entirety of such period being the “Restricted
Period”), the Executive shall not, in the United States of America or any
other country in which Holdings or the Company then engages in business,
directly or indirectly, accept employment with, provide services to or have any
interest (as an owner, sole proprietor, shareholder, partner, director,
officer, employee, consultant, agent or otherwise) in any financial
institution, third party processor, member service provider, card association
or independent sales organization or other similar business that directly
competes with the Company’s Current Lines of Business; provided, however, that
the Executive may hold, directly or indirectly, solely as an investment, not
more than one percent (1%) of the outstanding securities of any Person which is
listed on any national securities exchange or regularly traded in the
over-the-counter market.


 


(d)           Property of the Company.  At no time shall the Executive remove or
cause to be removed from the premises of the Company any memorandum, note,
list, record, file, document or other paper, equipment or any like item
relating to the Company (including copies, extracts and summaries thereof)
except as specifically permitted hereunder or in furtherance of the performance
of his duties on behalf of the Company. 
All memoranda, notes, lists, records, files, documents and other papers
and other like items (and all copies, extracts and summaries thereof) made or
compiled by the Executive or made available to the Executive concerning the
Company (whether or not prior to the date hereof), are and shall be the
property of the Company and shall be delivered by the Executive to the Company,
and all electronic copies thereof shall be deleted by the Executive from any
personal computer or other similar device belonging to the Executive promptly
upon the termination of the Executive’s employment with the Company.


 


(e)           Employees of the Company.  During the Restricted Period, the Executive
shall not hire or, directly or indirectly, initiate communications with,
solicit, persuade, entice, induce or encourage any individual who is then or
who has been within the preceding 12-month period, an employee or consultant of
the Company to terminate employment with the Company or to become employed by,
or enter into a contract or any other arrangement with, any other Person, and
the Executive shall not approach any such employee or provider for any such purpose
or authorize or knowingly approve the taking of any such actions by any other
Person.


 


(f)            Solicitation of Customers and/or Suppliers.  During the Restricted Period,
the Executive shall not, directly or indirectly, initiate communications with,
solicit, persuade, entice, induce, or encourage (or assist any other Person to
do any of the foregoing), for the Executive’s benefit or for the benefit of any
Person other than Holdings or the Company, any Person who is then or has been
within the preceding 12-month period a customer, supplier or account of the
Company, or any potential customer, supplier or account whose identity the
Executive learned during the course of his relationship with the Company
(whether or not prior to the date hereof), to terminate its contractual or
other relationship with the Company.


 


(g)           Servicing of Customers.  During the Restricted Period, the Executive
shall not furnish any services similar to those furnished while he was employed
by the Company (whether prior to or after the date hereof) to any customer or
account of the Company.


 


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(h)           Future Employer.  The Executive shall inform any future
employer of the Restrictive Covenants and provide such employer with a copy
thereof, prior to the commencement of that employment.


 


(i)            Corporate Opportunities.  During the Term, the Executive promptly shall
disclose to the Company any business idea or opportunity which falls within the
scope of the Company’s Current Lines of Business, which business idea or
opportunity shall become the sole property of the Company if the Company elects
to pursue such idea or opportunity as part of the Company’s Current Lines of
Business or as a business project. All programs, product concepts, materials, results
or ideas (“Inventions”) conceived, made, developed, reduced to practice,
or worked on, in whole or in part, solely by the Executive or jointly with
others prior to the date of this Employment Agreement, during the Term,
relating to the business of the Company are and shall be deemed to be “work for
hire” and, at the election of the Company, shall be the sole property of the
Company, without any further consideration paid to the Executive.  The Executive shall disclose promptly in
writing to any duly appointed officer of the Company, any Invention, whether or
not patentable or copyrightable or entitled to legal protection as a trade
secret or otherwise.  Upon the request of
the Company, the Executive agrees to disclaim promptly in writing all such
rights and give all reasonable assistance and execute such documents to enable
the Company to prepare and prosecute any application for patent or copyright
registration.  The Company shall have the
sole right as it may deem appropriate to determine the treatment of information
related to any Inventions, including but not limited to the right to keep the
same as a trade secret, to use, disclose, and publish same without prior patent
application or copyright registration and to file the same in its own name or to
follow any other procedure which the Company may deem appropriate.


 


(j)            Rights and Remedies Upon Breach. If the Executive breaches, or
threatens to commit a breach of, any of the Restrictive Covenants, Holdings and
the Company shall have the following rights and remedies, each of which rights
and remedies shall be independent of the other and severally enforceable, and
all of which rights and remedies shall be in addition to, and not in lieu of,
any other rights and remedies available to Holdings and the Company under law
or in equity:


 


(i)            Specific Performance.  The right and remedy to seek from any court
of competent jurisdiction specific performance of the Restrictive Covenants or
injunctive relief against any act which would violate any of the Restrictive
Covenants, it being acknowledged and agreed that any such breach or threatened
breach will cause irreparable injury to the Company and its Affiliates and
Holdings and that money damages will not provide an adequate remedy.


 


(ii)           Accounting.  The right and remedy to require the Executive
to account for and pay over to Holdings and the Company and Affiliates thereof
all compensation, profits, monies, accruals, increments or other benefits
derived or received by the Executive as the result of any transactions
constituting a breach of any of the Restrictive Covenants.


 


(k)           Severability of Covenants.  If any of the Restrictive Covenants, or any
part thereof, is held by a court of competent jurisdiction or any Governmental
Authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the Restrictive 


 


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Covenants shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and such court, government, agency or authority shall be empowered to
substitute, to the extent enforceable, provisions similar to the provisions
governing the term, breadth or geographic scope of the Restrictive Covenants so
as to provide to Holdings and the Company and Affiliates thereof, to the
fullest extent permitted by applicable law, the benefits intended by such
provisions.


 


(l)            Enforceability in Jurisdictions.  Holdings, the Company and the Executive
intend to and hereby confer jurisdiction to enforce the Restrictive Covenants
upon the courts of any jurisdiction within the geographical scope of such
Restrictive Covenants. If the courts of any one or more of such jurisdictions
hold the Restrictive Covenants wholly invalid or unenforceable by reason of the
breadth of such scope or otherwise, it is the intention of Holdings, the
Company and the Executive that such determination not bar or in any way affect
the right of Holdings and the Company, or any of their Affiliates, to the
relief provided above in the courts of any other jurisdiction within the
geographical scope of such Restrictive Covenants, as to breaches of such
Restrictive Covenants in such other respective jurisdictions, such Restrictive
Covenants as they relate to each jurisdiction being, for this purpose, severable
into diverse and independent covenants.


 


(m)          Reasonableness of Restrictions.  The Executive has carefully read and
considered the provisions of this Section 6, and having done so,
agrees that the restrictions set forth herein, including, but not limited to,
the time period of restriction, the geographic areas of restriction, and the
scope of the restriction are fair and reasonable, are supported by sufficient
and valid consideration, and these restrictions do not impose any greater
restraint than is necessary to protect the goodwill and other legitimate
business interests of the Company and Holdings and their respective Affiliates,
officers, directors, stockholders and other employees.


 


7.             Other Provisions.


 


(a)           Notices.  Except as may be otherwise provided herein,
all notices, requests, waivers and other communications under this Employment
Agreement shall be in writing and shall be conclusively deemed delivered and
effective (i) when hand delivered to the other party, (ii) five (5) business
days after being sent by registered or certified mail, return receipt
requested, postage prepaid, (iii) one (1) business day after being
sent via a reputable nationwide overnight courier service guaranteeing next
business day delivery, or (iv) in the case of a facsimile transmission,
upon transmission thereof by the sender and the issuance by the transmitting
machine of a confirmation slip confirming that the number of pages constituting
the notice have been transmitted without error; provided, however, that the sender
shall contemporaneously mail a copy of the notice to the addressee by the
method provided for in (i) or (ii) above, but such mailing shall in
no way alter the time at which the notice sent by facsimile transmission is
deemed received, in each case to the intended recipient as set forth below:


 


(i)            if to the
Company or Holdings, to:


 


NetSpend Corporation


Austin Centre


701 Brazos Street, 12th Floor


 


9

















 


Austin, TX 78701


Telephone: (512) 532-8308


Fax: (512) 532-8325


Attn: Chief Executive Officer


 


and


 


NetSpend Holdings, Inc.


Austin Centre


701 Brazos Street, 12th Floor


Austin, TX 78701


Telephone: (512) 532-8308


Fax: (512) 532-8325


Attn: President


 


(ii)           if to the
Executive, to him at the address set forth on the first page hereof.


 


Any
party may change the address to which notices, requests, consents or other
communications hereunder are to be delivered by giving the other parties notice
in the manner set forth in this Section 7(a).


 


(b)           Entire Agreement.  This Employment Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior contracts and other agreements, written or oral, with
respect thereto, including, without limitation, the Prior Agreement. Neither
the termination of the Executive’s employment hereunder nor the expiration or
termination of the Term or of this Employment Agreement shall affect the
enforceability of Section 6 hereof.


 


(c)           Waivers and Amendments.  This Employment Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance.  No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any right, power or
privilege hereunder, nor any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.


 


(d)           Governing Law.  This Employment Agreement shall be governed
by, and construed in accordance with and subject to, the laws of the State of
Texas applicable to agreements made and to be performed entirely within such
State.


 


(e)           Payment of Severance.  In addition to the provisions of Section 6(c)hereof,
and not in any way in limitation thereof, or in limitation of any right or remedy
otherwise available to the Company, if the Executive violates any provision of Section 6
hereof, any severance payments and/or benefit then or thereafter due from the
Company to the Executive shall be terminated forthwith and the Company’s
obligation to pay and the Executive’s right to receive such severance payments
and/or benefit shall terminate and be of no further force or 


 


10














 


effect, in each case
without limiting or affecting the Executive’s obligations under Section 6
hereof or the Company’s other rights and remedies available at law or equity.


 


(f)            Binding Effect; Benefit.  This Employment Agreement shall inure to the
benefit of and be binding upon the parties hereto and any successors and
assigns. Nothing in this Employment Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or such
successors and assigns, any rights, remedies, obligations or liabilities under
or by reason of this Employment Agreement.


 


(g)           Assignment.  This Employment Agreement, and the
Executive’s rights and obligations hereunder, may not be assigned by the
Executive; provided, however, that it shall be enforceable by the Executive’s
legal representatives and other successors in interest. The Company may assign
this Employment Agreement and its rights, together with its obligations,
hereunder in connection with any sale, transfer or other disposition of all or
substantially all of its assets or business, whether by merger, consolidation
or otherwise.


 


(h)           WAIVER OF JURY TRIAL.  NO PARTY TO THIS EMPLOYMENT AGREEMENT OR ANY
ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF A PARTY SHALL SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION
PROCEDURE BASED UPON OR ARISING OUT OF THIS EMPLOYMENT AGREEMENT OR ANY OF THE
OTHER AGREEMENTS OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE PARTIES. NO
PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS
BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN
WAIVED.  THE PROVISIONS OF THIS SECTION HAVE
BEEN FULLY DISCUSSED BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL BE
SUBJECT TO NO EXCEPTIONS. NEITHER PARTY HAS IN ANY WAY AGREED WITH OR
REPRESENTED TO THE OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL
NOT BE FULLY ENFORCED IN ALL INSTANCES.


 


(i)            Arbitration.  Any and all claims or controversies between
the Company and/or Holdings and the Executive relating to the Executive’s
employment with the Company and/or Holdings, or the termination thereof,
including claims for breach of contract, personal injury, tort, employment
discrimination (including unlawful harassment), and any violation of any state
or federal ,law shall be resolved by final binding arbitration in accordance
with the rules of the American Arbitration Association.  Judgment upon the award rendered by the
arbitrator or arbitrators may be entered in any court having jurisdiction
thereof.  The Executive understands that
this agreement to arbitrate covers any and all claims that the Executive might
bring under Title VII, the Americans With Disabilities Act or the Age
Discrimination in Employment Act.  The
arbitrators shall be selected from a panel provided by the American Arbitration
Association. Any such arbitration shall be conducted in Austin, Texas or such
other place as may be mutually agreed upon by the parties.  Each party shall select one (1) individual
to act as arbitrator, and the two (2) arbitrators so selected shall select
a third arbitrator.  Each party shall
bear its own costs, expenses and attorneys’ fees.  The Executive shall pay a portion of the
arbitrators’ expenses and administrative fees of arbitration equal to the
standard filing fee in the U.S. Federal District Court, Western District in
Austin, Texas.  The Company and/or 


 


11

















 


Holdings shall pay the
remainder of the arbitrators’ expenses and administrative fees of arbitration.
If any party prevails on a statutory claim that affords the prevailing party
attorneys’ fees, then the arbitrator may award reasonable attorneys’ fees and
costs to the prevailing party. Notwithstanding anything to the contrary contained
in this Section 7(i), if the Executive breaches, or threatens to
commit a breach of, any of the Restrictive Covenants, Holdings and the Company
shall have the right and remedy to seek from any court of competent
jurisdiction specific performance of the Restrictive Covenants or injunctive
relief against any act which would violate any of the Restrictive Covenants, it
being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and its Affiliates and Holdings.


 


(j)            Counterparts.  This Employment Agreement may be executed in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.


 


(k)           Headings.  The headings in this Employment Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Employment Agreement.


 


(l)            Certain Definitions.


 


“Affiliate”
means any entity from time to time owned or controlled by the Company or Holdings.


 


“Business
Day” means a day other than Saturday, Sunday or a day on which banks in
Austin, Texas are not required to be open or are authorized to remain closed.


 


“Governmental
Authority” means any United States federal, state or local or foreign government
or governmental, regulatory or administrative authority, department, agency,
commission, entity or other political subdivision thereof or any court,
tribunal, or judicial or arbitral body.


 


“Person”
means any natural person, partnership, corporation, limited liability company,
association, joint stock company, trust, joint venture, unincorporated
organization or Governmental Authority.


 


“Subsidiary”
means any corporation or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by the Company.


 


8.             Section 409A of the
Internal Revenue Code. Notwithstanding anything herein to the contrary,
this Employment Agreement is intended to be interpreted and operated so that
the payments and benefits set forth herein either shall either be exempt from
the requirements of Code Section 409A or shall comply with the
requirements of such provision; provided, however, that in no
event shall the Company be liable to the Executive for or with respect to any
taxes, penalties or interest which may be imposed upon the Executive pursuant
to Section 409A.  The Executive
hereby acknowledges and agrees that no representations have been made to the 


 


12

















 


Executive relating to the tax treatment of any
payment pursuant to this Agreement under Code Section 409A and the
corresponding provisions of any applicable state income tax laws.  Specifically, the parties agree as follows:


 


(a)           Each severance payment shall be treated as a right to a series of
separate payments as set forth in Treasury Regulation 1.409A-2(b)(2)(iii) and
no severance payment shall be paid later than the last day of the second
taxable year of the Executive following the taxable year of the Executive’s
“separation from service” as defined in Treasury Regulation 1.409A-1(h) (“Separation
From Service”).  To the extent that
any severance payment constitutes a “deferral of compensation” subject to Code
Section 409A (a “409A Payment”), then, (A) in the event that a
termination of Executive’s employment does not constitute a Separation From
Service, such 409A Payment shall begin at such time as the Executive has
otherwise experienced such a Separation from Service, and the date of such
Separation from Service shall be deemed to be his Termination Date for purposes
of Section 5 hereof, and (B) if on the date of the Executive’s
Separation from Service, the Executive is a “specified employee,” as such term
is defined in Treas. Reg. Section 1.409A-1(i), as determined from time to
time by the Company, then such 409A Payment shall not be made to the Executive
earlier than the earlier of (i) six (6) months after the Executive’s
Separation from Service; or (ii) the date of his death.  The 409A Payments under this Agreement that
would otherwise be made during such period shall be aggregated and paid in one
lump sum, without interest, on the first business day following the end of the
six (6) month period or following the date of the Executive’s death,
whichever is earlier, and the balance of the 409A Payments, if any, shall be
paid in accordance with the applicable payment schedule provided in Section 5.


 


(b)           With respect to reimbursements (whether such reimbursements are for
business expenses or, to the extent permitted under the Company’s policies,
other expenses) and/or in-kind benefits, in each case, that constitute deferred
compensation subject to Code Section 409A (as determined by the Company in
its sole discretion), each of the following shall apply: (1) no
reimbursement of expenses incurred by Executive during any taxable year shall
be made after the last day of the following taxable year of Executive, (2) the
amount of expenses eligible for reimbursement, or in-kind benefits provided,
during a taxable year of Executive shall not affect the expenses eligible for
reimbursement, or in-kind benefits to be provided, to Executive in any other
taxable year, and (3) the right to reimbursement of such expenses or
in-kind benefits shall not be subject to liquidation or exchange for another
benefit.


 


(c)           To the extent applicable, this Employment Agreement shall be
interpreted, construed and operated in accordance with Section 409A of the
Code, and the Treasury Regulations and other guidance issued thereunder.


 


(d)           Notwithstanding anything to the contrary contained in this Agreement,
the Company shall not make any deductions for money or property that the
Executive owes to the Company, or offset or otherwise reduce any sums that may
be due or become payable to or for the account of the Executive, from amounts
that constitute deferred compensation for purposes of Code Section 409A.


 


(e)           The Executive’s right to any deferred compensation, as defined under
Code Section 409A, shall not be subject to borrowing, anticipation,
alienation, sale, transfer, 


 


13

















 


assignment, pledge,
encumbrance, attachment, garnishment by creditors, to the extent necessary to
avoid tax, penalties and/or interest under Code Section 409A.


 


[Remainder of page intentionally left blank]


 


14

















 


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


 


 


	
   

  	
  NETSPEND
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  George Gresham

  
	
   

  	
   

  	
  George
  Gresham

  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  NETSPEND
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  George Gresham

  
	
   

  	
   

  	
  George
  Gresham

  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/
  Christopher T. Brown

  
	
   

  	
  Christopher
  T. Brown

  



 






 










 


Exhibit A


 


Form of Release


 


This
Release Agreement is by and among NetSpend Corporation, a Delaware corporation
(the “Company”), NetSpend Holdings, Inc., a Delaware corporation (“Holdings”),
and Christopher T. Brown (“Brown”).


 


1.             The parties hereby acknowledge and
agree to the severance terms set forth in Section 5 of the Employment
Agreement, dated as of
                                    
(the “Employment Agreement”), between the Company, Holdings and Brown.  Brown further acknowledges and agrees that he
is not entitled to any severance payment or benefits, pursuant to the
Employment Agreement or otherwise, unless he signs this Release and returns it
to the Company, as required by Section 5(c) of the Employment
Agreement.


 


2.             For and in consideration of the
severance payments and benefits the Company will pay to Brown pursuant to Section 5
of the Employment Agreement, Brown, on his own behalf and on behalf of his
successors and assigns (collectively referred to as “Releasor”), hereby
releases and forever discharges the Company and Holdings and their respective
predecessors, successors, corporate affiliates, officers, directors, agents,
representatives, employees, consultants and advisors (collectively referred to
as “Releasee”), from any and all claims, counterclaims, demands, debts,
actions, causes of action, suits, expenses, costs, attorneys’ fees, damages,
indemnities, obligations and/or liabilities of any nature whatsoever, whether
known or unknown, which Releasor ever had, now has or hereafter can, shall or
may have against Releasee, for, upon or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
Release, including, but not limited to, the following: (i) all such claims
and demands directly or indirectly arising out of or in any way connected with
Brown’s employment with the Company or Holdings or the termination of that
employment; (ii) all such claims and demands related to salary, bonuses,
commissions, stock, stock options, or any other ownership interests in the
Company or Holdings, vacation pay, fringe benefits, expense reimbursements,
severance pay and/or any other form of compensation; (iii) any claims
arising under any federal, state or local law, statute or ordinance, including,
without limitation, Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Older Workers Benefit Protection Act, the
Americans With Disabilities Act, the Civil Rights Act of 1991, the Fair Labor
Standards Act, the Equal Pay Act, the Employee Retirement Income Security Act
of 1974, the Family and Medical Leave Act of 1993, the Consolidated Omnibus
Budget Reconciliation Act of 1985, the Texas Commission on Human Rights Act and
section 8307c of the Texas Workers Compensation Act; and (iv) any claims
for breach of contract, express or implied, including any claim for breach of
any implied covenant of good faith and fair dealing, wrongful discharge,
discrimination, harassment, fraud, defamation, intentional tort, emotional
distress and negligence.


 


3.             Notwithstanding anything to the
contrary contained in this Release, Releasor does not release Releasee from any
(i) claims against Releasee that may arise after this Release has become
effective; (ii) rights to indemnification conferred upon Releasee as an
officer of the Company pursuant to the Company’s certificate of incorporation
or bylaws, in accordance with applicable law; (iii) rights under stock
option plans or agreements, or (iv) claims for group health


 

















 


and/or
life insurance benefits to which Releasor is entitled under Section 5(a) of
the Employment Agreement.


 


4.             Brown acknowledges that he has been
advised to consult independent legal counsel before signing this Release, and
hereby represents that he has executed this Release after having the
opportunity to consult independent counsel and after considering the terms of
this Release for at least twenty one (21) days (although Brown may choose to
voluntarily execute this Release earlier). Brown further represents and
warrants that he has read this Release carefully, that he has discussed it or
has had reasonable opportunity to discuss it with his counsel, that he fully
understands its terms, and that he is signing it voluntarily and of his own
free will.


 


5.             Brown acknowledges that the
consideration for this Release is consideration to which he would not otherwise
be entitled and is in lieu of any rights or claims that he may have with
respect to any severance benefits or other remuneration from the Company or
Holdings.


 


6.             This Release shall not become
effective until the eighth day following the date on which Brown has executed
it, provided that he has not revoked it. 
At any time prior to that effective date, Brown may revoke this Release
by providing notice of revocation to the Board of Directors of the
Company.  If Brown exercises his right to
revoke this Release, any obligation of the Company to pay him severance under
the Employment Agreement shall terminate.


 


7.             Brown agrees that he will not,
either directly or indirectly through any agent or surrogate, and whether
orally or in writing, “Disparage” (as defined herein) the Company or its
affiliates, or the members, directors, managers, officers, or employees of the
Company or its affiliates.  In addition,
the Company agrees that no Board member or executive officer of the Company or
Holdings shall Disparage Brown.  As used
in this Agreement, to “Disparage” includes, but is not limited to, impugning
the character, honesty, integrity, morality, business acumen, abilities,
qualities, or reliability of any person or entity.


 


8.             This Release may not be amended or
modified except by a writing signed by the Company, Holdings and Brown. This
Release shall be governed by and construed in accordance with the laws of the
State of Texas without regard to principles of conflicts of laws thereunder.


 


[Signature Page Follows]


 

















 


 


 


	
   

  	
   

  
	
  Christopher
  T. Brown

  	
   

  



 


Dated:                    This
              
day of
                                                  ,
20    .


 


WITNESSES:


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name

  



 


ACKNOWLEDGEMENT


 


	
  STATE OF TEXAS

  	
  )

  	
   

  	
   

  
	
   

  	
  )

  	
  SS:

  	
   

  
	
  COUNTY
  OF
                          

  	
  )

  	
   

  	
   

  



 


On
this
              day
of
                                  ,
20    , before me, the undersigned officer, personally
appeared Christopher T. Brown, known to me (or satisfactorily proven) to be the
person whose name is subscribed to the within instrument and acknowledged that
he has executed the same for the purposes therein contained and acknowledged
the same to be his free act and deed.


 


In
witness whereof, I have hereunto set my hand.


 


	
   

  	
   

  
	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
   

  	
  My
  Commission Expires:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NETSPEND
  CORPORATION

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NETSPEND
  HOLDINGS, INC.

  
	
   

  	
  By: