EXHIBIT 10.16
AGREEMENT REGARDING TRANSFER OF SHARES
AND SATISFACTION OF PROMISSORY NOTE
This Agreement (the "Agreement") is made as of the 19th day of
December, 2003 (the "Effective Date"), by and between Xxxxxx X. Xxxxxxxxx
("Executive") and MSX International, Inc. (the "Company").
BACKGROUND
A. Executive is the debtor with limited recourse under the terms
of an Amended and Restated Promissory Note dated as of February 28, 2002, the
total principal amount due and owing under which is $3,261,483 including accrued
interest of $63,874 as of the Effective Date (the "Promissory Note") and the
Company is the Lender under the terms of the Promissory Note.
B. Executive has pledged to the Company 600,000 shares of Common
Stock of the Company (the "Shares") as collateral to secure Executive's
obligations to the Company under the Promissory Note pursuant to a Pledge
Agreement dated as of February 28, 2002, by and between Executive and the
Company (the "Pledge Agreement"). The parties hereto have agreed that the fair
market value of the Shares as of the Effective Date is $1.15 per Share, or
$690,000 in the aggregate.
C. There is limited recourse under the Promissory Note against
Executive and his assets (apart from the Shares). Such recourse portion of the
Promissory Note is equal to $799,402.
D. Executive is terminating his employment as Chief Executive
Officer of the Company effective December 31, 2003.
E. Executive and the Company desire for Executive to transfer the
Shares to the Company in full satisfaction of all amounts owed by Executive
pursuant to the Promissory Note.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. Representations and Warranties.
1.1 Each party hereto represents and warrants to the other party
that this Agreement has been duly authorized, executed and delivered by
such party and is enforceable against such party in accordance with its
terms. The Company has all requisite corporate power and authority
necessary to authorize this Agreement and to consummate the
transactions contemplated hereby.
1.2 Executive hereby represents and warrants to the Company that
he owns the Shares of record and beneficially, free and clear of any
lien, pledge, security interest or other encumbrance or claim of any
person or entity, other than as set forth in the Promissory Note or
Pledge Agreement.
2. Satisfaction of Promissory Note.
2.1 As of the Effective Date, the Executive shall transfer the
600,000 Shares (which the parties agree have a fair market value as of
the Effective Date of $1.15 per Share) with a total value of $690,000,
and the Company shall cancel the Promissory Note. The Company shall
accept the transfer of Shares in full satisfaction of all obligations
of Executive under the Promissory Note.
2.2 As of the Effective Date and upon transfer of the Shares to
the Company in accordance with Section 3 hereof, the Promissory Note
shall be cancelled and shall terminate, and the Company shall deliver
to Executive an original copy of the Promissory Note, duly marked as
cancelled and free and clear of all liens.
3. Termination of Pledge Agreement. As of the Effective Date, the Pledge
Agreement shall terminate, and Executive shall transfer the Shares to the
Company by delivering a certificate or certificate(s) representing the Shares to
the Company duly endorsed for transfer, and the Shares shall be released from
the pledge and shall be free and clear of rights of the Company under the Pledge
Agreement.
4. Assignment; Successors. Neither the Company nor Executive may assign
any rights or obligations hereunder to any other party without the prior written
consent of the other party. This Agreement and all obligations and benefits
hereunder shall inure to the successors and permitted assigns of the parties.
5. Counterparts. This Agreement may be executed and delivered by each
party hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
6. Entire Agreement; Modification; Governing Law. The terms and conditions
hereof constitute the entire agreement between the parties hereto with respect
to the subject matter of this Agreement and supersede all previous
communications, either oral or written, representations and warranties of any
kind whatsoever, except as expressly set forth herein. No modifications of this
Agreement nor waiver of the terms or conditions thereof shall be binding upon
either party unless approved in writing by an authorized representative of such
party. All issues concerning this Agreement shall be governed by and construed
in accordance with the laws of the State of Michigan, without giving effect to
any choice of law or conflict of law provision or rule (whether of the State of
Michigan or any other jurisdiction) that would cause the application of the law
of any jurisdiction other than the State of Michigan.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MSX INTERNATIONAL, INC.
By: /S/ XXXXXXXXX X. XXXXXXX
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Executive Vice President & CFO
EXECUTIVE
/S/ XXXXXX X. XXXXXXXXX
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Xxxxxx X. Xxxxxxxxx
