Services Agreement
Exhibit
10.26
This
Services Agreement (this “Agreement”) is made and
entered into as of May13, 2009 by and between FastCash
International Ltd., a corporation organized
and existing under the laws of The British Virgin Islands (the “Company”), and Navigant
Consulting Services, Ltd., a corporation organized and existing
under the laws of The Commonwealth of Dominica (“NCS”).
Recitals
WHEREAS,
the Company is currently engaged in the payday loan business of advancing short
term loans to borrowers secured by the pledge of the respective borrowers’
expected salary payment, and expects to expand its business to provide small
business loans and other financial services (the “Business”); and
WHEREAS,
NCS, through the services of its authorized agent, Xxxxxx X. Xxxxxxxx (the
“Executive”), has
expertise in managing and operating businesses similar to the Business;
and
WHEREAS,
the Company desires to engage NCS to manage and operate the Business
specifically through services to be provided by the Executive to the Company
through NCS and to perform other duties which may be assigned from time to time
by the Board of Directors of the Company or its designee (the “Board”) in its/his discretion;
and
WHEREAS,
the parties desire to enter into this Agreement to be effective from and after
the date hereof.
NOW,
THEREFORE, in consideration of the foregoing, the mutual promises herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Engagement.
(a) Agreement to
Engage. Upon the terms and subject to the conditions of this
Agreement, the Company hereby engages NCS to provide the Services (as
hereinafter defined) to the Company, and NCS hereby accepts such engagement by
the Company.
(b) Term of
Engagement. Subject to Section 7, the term of this Agreement
shall commence as of the date hereof and end on the third anniversary of the
date hereof. Thereafter, the term of this Agreement shall
automatically renew for successive one-year periods unless either party gives
notice to the other at least 45 days prior to the end of the then-current
term. The period during which this Agreement is effective, including
any renewal thereof shall be referred to as the “Engagement
Period.”
2. Services.
(a) During
the Engagement Period, NCS shall provide to the Company the services outlined on
Exhibit
A hereto (the “Services”). NCS
shall report regularly to the Board.
(b) In
connection with the performance of the Services, the Executive is authorized to
execute, on behalf of the Company, all agreements approved by the
Board.
(c) NCS
agrees that the Executive shall provide the services hereunder to the Company on
behalf of NCS and the Executive hereby agrees to act in such capacity in
accordance with the terms hereof. NCS shall cause the Executive to,
and the Executive, shall diligently and conscientiously devote his business time
and attention and best efforts in discharging his duties hereunder and to
affiliates of the Company, as shall be determined by the Company (the “Affiliates”), pursuant to the
terms of services agreements similar to this Agreement entered into with any
Affiliate or pursuant to agreements entered into between the Company and one or
more of such Affiliates.
3. Compensation.
(a) Annual
Fee. The Company shall pay NCS a base annual fee at the rate
of EC$96,000 per annum (“Annual
Base Fee”). The Annual Base Fee will be subject to increase as
from time to time determined by the Board in its sole discretion. The
Annual Base Fee shall be payable monthly and shall not be subject to any
applicable withholding amounts.
(b) Annual
Bonus. In addition to the Annual Base Fee, for each full year
of the Engagement Period, NCS may receive an annual bonus in the discretion of
the Board. Any Bonus shall not be subject to any applicable
withholdings.
4. Benefits. During
the Engagement Period, the Company, together with the Affiliates which engage
NCs to provide services similar to the services provided hereunder, shall
provide NCs and the Executive with the following benefits:
(a) Participation
by the Executive in any group health plans, retirement plans, disability income
insurance and term life insurance policies sponsored or arranged by the Company
for its employees from time to time in accordance with the Company’s personnel
benefits policies and to the extent allowed by such plans. Nothing
herein shall obligate the Company to continue any such benefit plan currently
offered to employees or offered to employees in the future.
(b) The
Executive shall be allowed four (4) weeks per year of paid time off in
accordance with the Company’s policies.
5. Business
Expenses. The Company shall pay or reimburse NCS and the
Executive for all reasonable out-of-pocket expenses incurred or paid by NCS or
the Executive in the course of performing the Services upon presentation of
expense statements or vouchers and such other information as the Company may
reasonably require. NCS and the Executive shall comply with such
budget limitations and prior approval and reporting requirements with respect to
expenses as the Company may establish from time to time.
6. Termination of
Engagement. NCS’s engagement hereunder and any obligations of
the Company to NCS or the Executive will be terminated in accordance with
Sections 6(a) and 6(d), or may be terminated in accordance with Sections 6(b),
(c), (e) and (f), as follows:
(a) NCS’s
engagement and any obligations of the Company to the Executive will be
terminated upon the last day of the Engagement Period without a
renewal.
(b) The
Company may terminate NCS’s engagement hereunder for Cause. For
purposes of this Agreement, the Company shall have “Cause” hereunder upon (i) the
willful and continued failure by NCS or the Executive to substantially perform
their respective duties hereunder, after written demand for substantial
performance is delivered by the Company that specifically identifies the manner
in which the Company believes such duties have not been substantially performed,
which is not cured within 30 days after notice of such failure has been given to
the Executive by the Company, or (ii) the willful engaging by NCS or the
Executive in misconduct which is materially injurious to the Company, monetarily
or otherwise (including conduct that constitutes competitive activity pursuant
to Section 9 hereof). For purposes of this paragraph, no act, or
failure to act, on NCS’s or the Executive’s part shall be considered “willful”
unless done, or omitted to be done, not in good faith and without reasonable
belief that such action or omission was in the best interest of the
Company.
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(c) NCS
may, without incurring liability or forfeiting any compensation or benefit
provided hereunder, terminate this Agreement for Good Reason. For
purposes of this Agreement, “Good Reason” shall mean a
failure by the Company to comply with any material provision of this Agreement
which has not been cured within 30 days after written notice of such
noncompliance has been given by the Executive to the Company.
(d) NCS’s
engagement and any obligations of the Company to the Executive will terminate
upon the death of the Executive.
(e) The
Company may terminate NCS’s engagement and any obligations of the Company to the
Executive if the Executive is Permanently Disabled (as hereafter
defined). For purposes of this Agreement, the term “Permanently Disabled” or
“Permanent Disability”
shall mean (i) becoming permanently disabled as provided in any permanent
disability income policy provided by the Company under this Agreement insuring
the Executive or (ii) in the absence of any such disability income policy, the
inability for a period of three consecutive months, with reasonable
accommodation, due to a mental or physical injury, illness or disorder, of
Executive to provide substantially all of the services required pursuant to this
Agreement to be provided by NCS.
(f) NCS
or the Company may terminate NCS’s engagement and any obligations of the Company
to the Executive hereunder on six months’ advance written notice to the
other.
(g) Any
termination of this Agreement by the Company or NCS (other than termination by
reason of the Executive’s death) shall be communicated by written notice to the
other party. Each such notice shall indicate the specific termination
provision of this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of this
Agreement under the provision so indicated. If, within thirty (30)
days following any written notice of termination, the party receiving the notice
notifies the other party in writing that a dispute exists concerning the
termination, which notice sets forth in reasonable detail the basis for such
dispute, the termination will not be effective until the date when the dispute
is finally determined, either by mutual written agreement of the parties, by a
binding and final arbitration award or by a final judgment, order or decree of a
court of competent jurisdiction (the time for appeal there from having expired
and no appeal having been perfected).
7. Effect of
Termination.
In the
event that this Agreement is terminated for any reason, NCS shall be paid
on the payroll date next following the date of termination, all compensation,
and reimbursement of all expenses, for the Engagement Period accruing through
the effective date of termination. Neither NCS nor the Executive
shall be entitled to any additional payment.
8. [INTENTIONALLY OMITTED]
9. Restrictive
Covenants.
(a) Non-competition.
During the Engagement Period and for a period of three years thereafter, neither
NCS nor the Executive will, directly or indirectly, either as principal, agent,
employee, or in any other capacity, enter into or engage in any business in
which the Company is engaged during the Engagement Period except on behalf of
the Company or an Affiliate. In the event this Agreement is
terminated by the Company pursuant to Section 6(f), the restriction set forth in
the foregoing sentence shall not be applicable. During the Engagement
Period and for a period of three years thereafter, neither NCS nor the Executive
will, directly or indirectly, either as principal, agent, employee, or in any
other capacity, solicit any person or entity who is or was a customer of the
Company at any time during the 12 months preceding the end of the Engagement
Period.
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(b) Confidentiality. During
the Engagement Period and at all times after the termination of this Agreement
for any reason, neither NCS nor the Executive will, directly or indirectly,
disclose to any third party any trade secrets, customer lists or other
confidential information pertaining to the business of the
Company.
(c) Company
Property. Promptly following the termination of this Agreement
for any reason, NCS and the Executive shall return to the Company all property
of the Company, and originals and any copies thereof in NCS’s or the Executive’s
possession or under their respective control, including all confidential
information and trade secrets, in whatever media or in whatever
form.
(d) Non-solicitation of
Employees. During the Engagement Period and for a period of
three years thereafter, neither NCS nor the Executive shall, directly or
indirectly, induce any employee of the Company or any of its affiliates to
terminate employment with such entity, and will not directly or indirectly,
either individually or as owner, agent, employee, consultant or otherwise,
employ or offer employment to any person who is or was employed by the Company
or a subsidiary thereof except on behalf of an Affiliate or unless such person
shall have ceased to be employed by such entity for a period of at least three
months.
(e) Injunctive
Relief with Respect to Covenants. NCS and
the Executive acknowledge and agree that the covenants and obligations of NCSand
the Executive with respect to non-competition, non-solicitation, confidentiality
and Company property relate to special, unique and extraordinary matters and
that a violation of any of the terms of such covenants and obligations will
cause the Company and its subsidiaries irreparable injury for which adequate
remedies are not available at law. Therefore, NCS and the Executive
agree that the Company and its subsidiaries shall be entitled to an injunction,
restraining order or such other equitable relief as a court of competent
jurisdiction may deem necessary or appropriate to restrain NCS or the Executive
from committing any violation of the covenants and obligations contained in this
Section. These injunctive remedies are cumulative and are in addition
to any other rights and remedies the Company or its subsidiaries may have at law
or in equity. In the event (i) the enforceability of any of the
covenants contained in this Section is challenged by NCS or the Executive in any
judicial proceeding, (ii) NCS and the Executive are not enjoined in such
proceeding from breaching such covenant, and (iii) NCS and the Executive do, in
fact, breach such covenant, then, if a court of competent jurisdiction
determines that the challenged covenant is enforceable, the time period set
forth in such covenant shall be deemed tolled upon the initiation of such
proceeding until the dispute is finally resolved and all periods of appeal have
expired.
10. Miscellaneous.
(a) Binding
Effect. This Agreement shall be binding on and inure to the
benefit of the Company and any person or entity which succeeds to the
interest of the Company (regardless of whether such succession occurs by
operation of law, by reason of the sale of all or a portion of the Company’s
stock or assets or a merger, consolidation or reorganization involving the
Company). This Agreement shall also be binding on and inure to the
benefit of NCS and the Executive.
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(b) Assignment. Neither
this Agreement nor any of the rights or obligations hereunder shall be assigned
or delegated by any party hereto without the prior written consent of the other
parties.
(c) Entire
Agreement. This Agreement supersedes any and all prior
agreements between the parties hereto, and constitutes the entire agreement
between the parties hereto with respect to the matters referred to herein, and
no other agreement, oral or otherwise, shall be binding between the parties
unless it is in writing and signed by the party against whom enforcement is
sought. There are no promises, representations, inducements or
statements between the parties other than those that are expressly contained
herein. NCS and the
Executive acknowledge that each is entering into this Agreement of its own free
will and accord, and with no duress, that each has read this Agreement and
understands it and its legal consequences. No parol or
other evidence may be admitted to alter, modify or construe this Agreement,
which may be changed only by a writing signed by the parties
hereto.
(d) Severability;
Reformation. In the event that one or more of the provisions
of this Agreement shall become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not be affected thereby. In the event any of Section
9(a), (b), (c), (d) or (e) is not enforceable in accordance with its terms, NCS,
the Executive and the Company agree that such Section, or such portion of such
Section, shall be reformed to make it enforceable in a manner which provides the
Company the maximum rights permitted under applicable law.
(e) Waiver. Waiver
by any party hereto of any breach or default by another party of any of the
terms of this Agreement shall not operate as a waiver of any other breach or
default, whether similar to or different from the breach or default
waived. No waiver of any provision of this Agreement shall be implied
from any course of dealing between the parties hereto or from any failure by
either party hereto to assert its or his rights hereunder on any occasion or
series of occasions.
(f) Notices. Any
notice required or desired to be delivered under this Agreement shall be in
writing and shall be delivered personally, by courier service, by
registered mail, return receipt requested, or by telecopy and shall be
effective upon dispatch to the party to whom such notice shall be directed, and
shall be addressed to the other party at the address appearing on the signature
page hereto.
(g) Amendments. This
Agreement may not be altered, modified or amended except by a written instrument
signed by each of the parties hereto.
(h) Headings. Headings
to sections in this Agreement are for the convenience of the parties only and
are not intended to be part of or to affect the meaning or interpretation
hereof.
(i) Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original but both of which together shall constitute one and the same
Agreement.
(j) Context. Unless
the context of this Agreement clearly requires otherwise, references to the
plural include the singular, to the singular include the plural, to the
part include the whole, and to the male gender shall also pertain to the female
and neuter genders and vice versa. The term “including” is not
limiting, and the term “or” has the inclusive meaning represented by the
phrase “and/or”. The words “hereof,” “herein,” “hereby”, “hereto”,
“hereunder” and similar terms in this Agreement refer to this Agreement as
a whole and not to any particular provision of this
Agreement. Section and Exhibit and clause references are to this
Agreement unless otherwise specified.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first above written.
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The
Company:
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NCI:
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Fastcash
International ltd.
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Navigant
Consulting Services
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By:
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/s/
Xxxxxx
Xxxxxxxxx
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By:
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/s/
Xxxxxx X.
Xxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxx
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Title:
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Director
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Title:
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Authorized
Agent
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The
undersigned hereby joins in the execution of this Agreement to signify his
agreement to be bound hereby to the extent set forth herein.
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/s/
Xxxxxx X.
Xxxxxxxx
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Xxxxxx
X. Xxxxxxxx
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Exhibit
A
Services
NCS shall
be responsible for the following with respect to the Company, subject to the
discretion of the Board:
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§
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Directing
all regional operations including accounting, financial, legal, and human
resources
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§
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Developing,
under the direction of the Board, strategic, product, marketing and
pricing plans and sales and financial goals, and the implementation
thereof
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§
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Determining
the credit worthiness of the Company’s
customers
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§
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Monitoring
financial performance
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§
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Monthly,
quarterly and annual financial reporting and such other reporting as
directed by the Board
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§
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Compliance
with all relevant regulatory
requirements
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§
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Maintenance
of the Company’s bank accounts, including signature authority over
withdrawals as determined by the
Board
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§
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Technology
and other asset maintenance and
security
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§
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Personnel
and overhead management
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§
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Facilities
and equipment management
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§
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New
markets expansion
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§
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Evaluation
of management performance and compliance with corporate policies and
objectives
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§
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Motivation
of management and staff to achieve a positive working
environment
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§
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Such
other reasonable duties not inconsistent with such roles as may be
directed by the Board
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