EXHIBIT 10.21
MANAGEMENT SERVICES AGREEMENT
This Agreement is made, as of the 23rd day of July, 1999, by and
between INTRAC ACQUISITION CORPORATION, a Delaware corporation ("IAC"), and
XXXXXX XXXXXXXXX ("MANAGER").
The parties, each intending to be legally bound, hereby agree as follows:
1. POSITION. IAC hereby appoints Manager as Chairman of IAC, pursuant to
the terms of this Agreement, and Manager hereby accepts such appointment and
agrees to perform such services in this capacity as may from time to time be
reasonably requested by IAC's board of directors.
2. TERM. This Agreement shall commence as of July 23, 1999 (the "Effective
Date") and shall, except as provided in paragraph 6, remain in effect for a
period of ten (10) years thereafter. After this ten (10) year term, the
Agreement shall automatically renew from year to year unless either party gives
written notice to the other at least ninety (90) days prior to the expiration of
the then current term that he or it is not renewing.
3. COMPENSATION AND BENEFITS. For all services rendered by Manager
under this Agreement, IAC shall compensate Manager as follows:
(a) Manager shall receive an annual compensation (the "Base
Compensation") in the amount of Four Hundred Thousand Dollars
($400,000), which will be paid jointly by IAC and ATM Service,
Ltd., a New York corporation ("ATM"). IAC will pay Manager, on a
quarterly basis, the difference between the amount of the Base
Compensation and any portion thereof paid by ATM.
(b) Manager shall also be entitled to receive such other benefits as
are contained in Schedule "A".
(c) The Base Compensation shall be subject to annual review, and
Manager shall be entitled to such increase as is determined by
the Board of Directors of IAC. Notwithstanding anything contained
herein to the contrary, the Base Compensation shall be increased
pro rata to any increase in base salary received by Xxxxxx
Xxxxxxxxx ("Xxxxxxxxx"). Manager's entitlement to any stock
options and bonuses or other additional compensation shall
likewise be pro rata with that of any stock options or bonuses or
other additional compensation granted or awarded to Xxxxxxxxx.
4. DUTIES. The duties of Manager are set forth in the attached
Schedule "B". Those duties shall be performed in such manner so as to uphold
the reputation of IAC in the business community. Manager's duties may be
reasonably extended or curtailed from time to time, at the discretion of the
Board of Directors of IAC.
5. TIME AND ATTENTION DEVOTED TO DUTIES. Manager shall devote such time
and attention to the business of IAC as may reasonably be required in order to
perform his duties hereunder. He shall not, during the term of this Agreement,
be engaged in any other business activity which materially interferes with his
ability to perform the duties assigned to him by IAC, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage. This
shall not be construed as preventing Manager from investing his assets in such
form or manner as will not require any services on the part of Manager in the
operation of the affairs of the companies in which such investments are made,
subject to the qualification that Manager may not invest in a company which is
competitive in any manner whatsoever with IAC, its parents, subsidiaries or
affiliates (except for investments constituting less than one percent (l%) of a
publicly owned company).
6. TERMINATION.
(a) Notwithstanding the termination provision of paragraph 2, this
Agreement may be terminated at any time by IAC, upon written
notice to Manager, upon the occurrence of any of the following:
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(i) Manager's inability to perform substantially all of his
duties, through death or total disability in excess of
sixty (60) consecutive days or total disability in excess
of ninety (90) days in any twelve (12) month period;
(ii) Any intentional act of dishonesty or disloyalty by Manager
having a materially adverse affect on IAC;
(iii) Manager's intentional material breach of the
confidentiality provisions of this Agreement; or
(iv) Any other material breach of this Agreement by Manager
which is not cured within a reasonable time following
Manager's receipt of written notice from IAC.
(b) Manager may terminate this Agreement in the event of any material
breach of this Agreement which is not cured within a period of
thirty (30) days following IAC's receipt of written notice from
Manager.
7. REPRESENTATIONS OF MANAGER
(a) Manager represents that, to the best of his knowledge, he is not
the subject of any pending or threatened claim which involves any
criminal or governmental proceedings, or allegations of
misfeasance, and that he has not been charged nor threatened to
be charged by any governmental or administrative body with
violation of law except for minor traffic violations and similar
charges.
(b) Manager further represents and warrants that he is not prohibited
from acting as Chairman of IAC by virtue of the operation of any
non-competition or similar agreement with any prior employer, or
by any applicable statutes, regulations or ordinances or any
other applicable law or by the rules and regulations of the US
Securities and Exchange Commission or any national securities
exchange, and that his acting in the capacity for IAC that is
contemplated by the parties hereto and by virtue of his position
with IAC described in Section 1 hereof will not subject IAC to
claims or materially impair the license status of IAC or its
affiliates or any entity operated by IAC or its affiliates.
8. DEFENSE OF CLAIMS. Manager agrees that during the term of this
Agreement, and at all reasonable times thereafter, he will cooperate with IAC in
the defense of any claim that may be made against IAC or any affiliates, to the
extent that such claims may relate to services performed by Manager for IAC or
its affiliates. In connection therewith, IAC will (i) reimburse Manager for all
of his reasonable out-of-pocket expenses and, to the extent reasonably
practicable, provide Manager with notice at least ten (10) days prior to the
date on which any travel is required, and (ii) if Manager is no longer engaged
by IAC, compensate Manager at a reasonable rate for his time.
9. SEVERABILITY. In the event that any of the provisions of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such invalidity or unenforceability shall not affect the remainder of this
Agreement and same shall be construed as if such invalid or unenforceable
provisions had never been a part hereof. If a court of competent jurisdiction
determines that the length of time, geographical restrictions or any other
restriction, or portion thereof, set forth in this Agreement is overly
restrictive and unenforceable, the parties agree that the court shall reduce or
modify such restrictions to those which it deems reasonable and enforceable
under the circumstances, and as so reduced or modified, the parties hereto agree
that the restrictions of this Agreement shall remain in full force and effect.
10. ENTIRE AGREEMENT. This document constitutes the entire agreement
between IAC and Manager regarding the subject matter hereof and there are no
oral agreements or undertakings affecting this instrument; any
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future modifications, in order to be binding upon the parties, must be reduced
to writing and executed by both parties to this Agreement.
11. NO WAIVER. Either party's failure to strictly enforce any provision of
this Agreement shall not be construed as a waiver or as excusing either party
from future performance.
12. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
the heirs, executors, administrators, successors and assigns of the respective
parties, but in no event may Manager assign to any other party Manager's duties
or obligations under this Agreement.
13. NEW YORK JURISDICTION AND LAW. THIS AGREEMENT HAS BEEN MADE AND
EXECUTED IN THE STATE OF NEW YORK AND THE PARTIES CONSENT TO THE JURISDICTION OF
THE NEW YORK COURTS AND THE APPLICATION OF DELAWARE LAW TO ANY CONTROVERSY
HEREUNDER. THE PARTIES AGREE TO WAIVE A JURY TRIAL IN ANY PROCEEDING BROUGHT TO
ENFORCE ANY OF THE TERMS OF THIS AGREEMENT.
14. HEADINGS. Paragraph headings herein shall have absolutely no legal
significance and are used solely for convenience of reference.
15. ACKNOWLEDGMENT. Manager acknowledges that notwithstanding the date of
Manager's execution and delivery of this Agreement, Manager was made aware of
and consented to the covenants, conditions and agreements of this Agreement that
he is receiving additional consideration for the same, including, but not
limited to, the management services arrangement contained in this Agreement.
16. NOTICES. All notices which either party is required or may desire to
give to the other under or in conjunction with is Agreement shall be in writing
and shall be given by addressing the same to such other party at the address set
forth below, and by depositing the same so addressed, certified mail, postage
prepaid, return receipt requested, or by overnight mail or by reputable courier
service, or by delivering the same personally to such other party.
IF TO THE COMPANY:
Intrac Acquisition Corporation
000 Xxxxxxx Xxx.
Xxx Xxxx, XX 00000
IF TO MANAGER:
Xxxxxx Xxxxxxxxx
XXXxxxxxx.xxx
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Any notice mailed should be deemed to have been given three (3) United
States Post Office delivery days following the date of mailing. Overnight mail
or courier services shall be deemed to have been given on the next business day
following the date of mailing. Any notice delivered in person shall be deemed
effective upon delivery. Either party may change the address for the service of
notice upon it by written notice given to the other in the manner herein
provided for the giving of notice.
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IN WITNESS WHEREOF, the parties hereto have set their hands.
INTRAC ACQUISITION CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
/s/ Xxxxxx Xxxxxxxxx
-------------------------------
XXXXXX XXXXXXXXX
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SCHEDULE A
BENEFITS
Health, life and disability coverages, in each case at least equivalent to the
benefits provided to Xxxxxx Xxxxxxxxx and Xxxx Xxxx by ATM and/or IAC.
Reimbursement for automobile expenses, at a level up to 120% of the expense
reimbursement received by Xxxxxx Xxxxxxxxx and/or Xxxx Xxxx from ATM and/or IAC.
Cell phones, laptop computer, and any other computer/communication requirements.
Reimbursement for business expenses/entertainment; and
Such other benefits and/or perks as may be provided by the Company to any of its
other executive personnel.
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SCHEDULE B
DUTIES
As Chairman of IAC, Manager will have the following duties and
responsibilities:
o Exercising the executive powers of IAC.
o Hiring and firing of employees.
o Setting compensation for all employees.
o Attending and participating in the meetings of the Board of Directors of
IAC.
o Attending and participating in meetings of the Executive Committee of IAC.
o Implementing IAC's policies as adopted by the Board of Directors.
o Representing IAC in dealings with third parties, as directed by the Board
of Directors.
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