EXHIBIT 10.29
AGREEMENT FOR SERVICES
This Agreement for Services (the "Agreement"), dated as of March 1,
1999, is entered into by and among IFS International, Inc., a Delaware
corporation (the "Company"), whose principal executive office is located at
Rensselaer Technology Park, 000 Xxxxxx Xxxx, Xxxx, Xxx Xxxx 00000, IFS
International, Inc., a New York corporation and a wholly owned subsidiary of the
Company, and any other subsidiary of the Company, (the Company and its
subsidiaries are sometimes collectively referred to in this Agreement as the
"Companies") and Xxxx X. Xxxxxxxxx, (the "Executive"), an individual whose
address is 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx , XX with reference to the following
facts:
RECITALS:
WHEREAS, in November, 1998 the Company's Board of Directors, elected
Xxxx X. Xxxxxxxxx as its Chairman, and desires to fairly and adequately
compensate XX. Xxxxxxxxx (the Executive) for his services as Chairman of the
Board, Chairman of the Board's Acquisition Committee, Chairman of the Board's
Executive Committee and member of the Board's Compensation Committee.
WHEREAS, the Executive and the Company wish to memorialize with this
Agreement their agreement as to the terms and conditions of the Executive's
compensation.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, the parties to this Agreement
(collectively "parties" and individually a "party") agree as follows:
AGREEMENT:
1. DEFINITIONS
Set forth below are definitions of capitalized terms which are
generally used throughout this Agreement and not defined elsewhere in it:
(a) "Affiliate" means any "Person" (as defined below) controlling,
controlled by, or under common control with a party.
(b) "Board" means the Board of Directors of the Company, as such body
may be reconstituted from time to time.
(c) "Change In Control" shall mean, subject to subsections (iv) and
(v) below, the occurrence of any of the following events:
(i) An acquisition of control by an "Acquiring Person" where,
immediately after the subject acquisition, such "Person" holds
"Beneficial Ownership" of more than fifty percent (50%) of the "Total
Combined Voting Power" of the Company's then outstanding "Voting
Securities". The terms in quotations in the immediately preceding
sentence shall, for purposes of this Agreement, have the following
meanings:
(A) "Acquiring Person" shall mean any "Person" which
acquires the defined percentage of securities, with the exception
of: (A) any Employee Benefit Plan (or a trust forming a part
thereof) maintained by the Companies (or any of them), or any
corporation or entity in which the Companies (or any of them)
hold fifty percent (50%) or more of the "Voting Securities"
(each, a "Controlled Subsidiary"); (B) the Company or any
Controlled Subsidiary; or (C) any "Person" which acquires the
threshold percentage of "Voting Securities" through a
"Non-Control Transaction" (as defined below);
(B) "Non-Control Transaction" shall mean any transaction in
which the stockholders of the Company immediately before such
transaction, directly or indirectly own immediately following
such transaction at least a majority of the "Total Combined
Voting Power" of the outstanding "Voting Securities" of the
surviving corporation (or other entity) resulting from such
transaction, in substantially the same proportion as such
stockholders' ownership of the "Voting Securities" of the Company
immediately before such transaction;
(C) "Person," "Beneficial Ownership," "Total Combined Voting
Power" and "Voting Securities" shall have the meanings ascribed
to such terms in Sections 13(d) and 14(d) of the Securities
Exchange Act and Rule 13d-3 promulgated thereunder; or
(ii) During any period of three (3) consecutive years after the date
of this Agreement, the individuals who constituted the Company's Board at
the beginning of such period (the "Incumbent Board") cease to constitute a
majority of the Company's Board, for any reason(s) other than (A) the
voluntary resignation of one or more Board members; (B) the refusal by one
or more Board members to stand for election to the Board; and/or (C) the
removal of one or more Board members for good cause; provided, however, (1)
that if the nomination or election of any new director of the Company was
approved by a vote of at least a majority of the Incumbent Board, such new
director shall be deemed a member of the Incumbent Board; and (2) that no
individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated
under the Securities Exchange Act of 1934), or as a result of a
solicitation of proxies or consents by or on behalf of an Acquiring Person,
other than a member of the Board (a "Proxy Contest"), or as a result of any
agreement intended to avoid or settle any Election Contest or Proxy
Contest; or
(iii) The Board or the stockholders of the Company approve:
(A) A merger or consolidation or reorganization of the Company with:
(1) any Controlled Subsidiary, and such transaction is not a
Non-Control Transaction; or
(2) any other corporation or other entity, and such transaction
is not a Non-Control Transaction; or
(B) A complete liquidation or dissolution of the Company, and such
transaction is not a Non-Control Transaction; or
(C) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to (1) any Controlled
Subsidiary, and such transaction is not a Non-Control Transaction, or (2)
to any other Person, and such transaction is not a Non-Control Transaction.
(iv) Notwithstanding subsections (i) through (iii) above, a
Change In Control shall not be deemed to have occurred solely because
any Person acquired Beneficial Ownership of more than the threshold
percentage of the outstanding Voting Securities as a result of an
acquisition of Voting Securities by the Company (each, a "Redemption")
which, by reducing the number of Voting Securities outstanding,
increased the percentage of outstanding Voting Securities Beneficially
Owned by such Person; provided, however, that if (A) a Change In
Control would occur as a result of a Redemption but for the operation
of this sentence, and (B) after such Redemption, such Person becomes
the Beneficial Owner of any additional Voting Securities, which
increase the percentage of the then outstanding Voting Securities
Beneficially Owned by such Person over the percentage owned as a
result of the Redemption, then a Change In Control shall be deemed to
occur.
(v) Notwithstanding any other provision of this subsection (c),
if the Executive or an Affiliate of the Executive who is then a
stockholder or director of the Company, either: (i) expressly voted in
favor of the transaction constituting the Change In Control in such
Person's capacity as either a stockholder or as a director of the
Company; or (ii) expressly abstained from voting (other than by reason
of an "interest" in a matter or transaction); and/or (iii) failed or
refused to vote, then the transaction shall not constitute a Change in
Control.
(d) "Person" (other than for purposes of determining a Change in
Control) means an individual or natural person, a corporation, partnership
(limited or general), joint-venture, association, business trust, limited
liability company or partnership, trust (whether revocable or irrevocable),
pension or profit sharing plan, individual retirement account, or fiduciary
or custodial arrangement.
2. EMPLOYMENT OBLIGATIONS
(a) Engagement; Duties. The Company hereby engages the
Executive to faithfully execute the duties of his Board appointments. These
duties shall primarily consist of the Management of the Board of Directors and
its activities as well as personal intervention in critical policy and
Investment community matters as requested by the CEO and/or the Board of
Directors. The Executive shall report solely to the Company's Board of Directors
except in cases where he has accepted a task from the CEO, in which case he
shall report to the CEO.. The Executive shall be reasonably available to travel
as the needs of the business of the Companies may require.
(b) Performance. The Executive shall at all times faithfully,
loyally, conscientiously, diligently and, to the best of the executive's
ability, perform all of the Executive's duties and obligations under this
Agreement, and otherwise promote the interests and welfare of the Companies, all
consistent with the highest and best standards of the Companies' industry. The
Executive: (i) shall strictly comply with and adhere to all applicable laws, and
the Companies' Articles of Incorporation, Bylaws and policies; (ii) shall obey
all reasonable rules and regulations and policies now in effect or as
subsequently modified governing the conduct of employees of the Companies, and
(iii) shall not commit any acts of gross negligence, willful misconduct,
dishonesty, fraud or misrepresentation, racism, sexism or other discrimination,
or any other acts which would tend to bring the Companies (or any of them) into
public scandal or ridicule, or would otherwise result in material harm to the
business or reputation of the Companies or any of them.
(c) Facilities and Services. The Companies shall provide such
support staff, facilities, equipment and supplies as are reasonably necessary or
suitable for the adequate performance of the Executive's duties and obligations
under this Agreement, including technical and secretarial help.
3. TERM
(a) Initial Term. Unless this Agreement is previously terminated by
either party as provided in section 10 below, the Companies hereby employ
the Executive pursuant to the terms of this Agreement, and the Executive
hereby accepts such employment, for the period beginning on March 1, 1999
and ending on February 28, 2002. (the "Initial Term").
(b) Automatic Renewal; Termination by the Companies. This Agreement
will be automatically renewed for additional and consecutive one (1) year
terms (each, a "Renewal Term") following the expiration of each Initial or
Renewal Term, (each a "Term"), unless either party gives written notice to
the other party, no later than sixty (60) days prior to the expiration of
the then pending Term, of its or his election not to automatically renew
this Agreement for an additional year.
4. COMPENSATION
(a) Annual Fee. During the Term, the Companies shall pay to the Executive
an annual retainer of ten thousand dollars ($10,000) plus a fee of two thousand
dollars ($2000) for each quarterly Board meeting for a total annual compensation
of eighteen thousand dollars ($18,000). In addition, the Executive will be
granted one hundred thousand (100,000) options to purchase the Company's stock,
options upon thirty-three thousand shares (33,000) to be vested on March 1,
1999, options upon thirty three thousand shares (33,000) to be vested on March
1, 2000, and options upon thirty -four thousand shares (34,000) to be vested on
March 1, 2001.
(b) Payment of Compensation. The annual retainer for the year 1999 will be
prorated. The quarterly meeting fees will be paid on the day of each Board
meeting.
5. BUSINESS EXPENSES
During the Term of this Agreement the Executive is authorized
to incur, and the Companies shall directly pay or reimburse to the Executive,
his reasonable and necessary business expenses, duly and actually incurred in
connection with the duties and services to be performed by the Executive
pursuant to this Agreement, including without limitation entertainment, meals,
travel, lodging and other similar out-of-pocket expenses, upon the Executive's
submission to the Companies of itemized expense statements setting forth the
date, purpose and amount of the expense incurred, together with corresponding
receipts showing payment by the Executive in cases where he seeks reimbursement,
all in conformity with business expense payment and/or reimbursement policies
established by the Companies from time to time, all of which shall comply with
the substantiation requirements of any applicable taxing authorities, and
regulations promulgated by such authorities thereto, pertaining to the
deductibility of such expenses. Direct payment and/or reimbursement shall be
made by the Companies no later than fifteen (15) days from the date that the
foregoing documentation is submitted by the Consultant.
6. EFFECT OF TERMINATION OF EXECUTIVE AS A RESULT OF A CHANGE IN CONTROL
In the event the Executive's employment hereunder is terminated before
the expiration of a Term, and such termination is attributable to an event
defined as a Change in Control; then all rights and obligations of the Companies
and the Executive under section 2 [Employment Obligations], section 4
[Compensation], and section 5 [Business Expenses shall terminate as of the
effective date of the termination date; provided, however: that the Executive
shall receive, in a lump sum and without discount to present value, an amount
equal to: the sum of the Executive's Annual Retainer and meeting fees,
(calculated at the then current rate) multiplied by the larger of either (x) the
number of years then remaining in the term of this Agreement (calculated to the
nearest day as of the termination date), or (y) two years. In addition:
(a) The Companies shall reimburse the Executive for the
Executive's business expenses incurred through the effective date of
the termination, within three (3) business days of the Executive's
submission of the Executive's expense report to the Companies.
13. REPRESENTATIONS AND WARRANTIES OF PARTIES
Each of the parties to this Agreement hereby represents and
warrants to each of the other parties to this Agreement, each of which is deemed
to be a separate representation and warranty, as follows:
(v) Organization, Power and Authority. Such party has all requisite
corporate or other power and authority to enter into this Agreement.
(vi) Authorization and Validity of Agreement. This Agreement has been duly
executed and delivered by such party and, assuming due authorization, execution
and delivery by all of the other parties hereto, is valid and binding upon such
party in accordance with its terms, except as limited by: (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditor rights generally; and (2) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(vii) No Breach or Conflict. Neither the execution or delivery of this
Agreement, nor the performance by such party of the transactions contemplated
herein: (i) if such party is an entity, will breach or conflict with any of the
provisions of such party's governing organizational documents; or (ii) to the
best of such party's knowledge and belief, will such actions violate or
constitute an event of default under any agreement or other instrument to which
such party is a party.
14. MISCELLANEOUS
(a) Preparation of Agreement; Costs and Expenses. This
Agreement was prepared by the Companies solely on behalf of such party. Each
party acknowledges that: (i) he or it had the advice of, or sufficient
opportunity to obtain the advice of, legal counsel separate and independent of
legal counsel for any other party hereto; (ii) the terms of the transactions
contemplated by this Agreement are fair and reasonable to such party; and (iii)
such party has voluntarily entered into the transactions contemplated by this
Agreement without duress or coercion. Each party further acknowledges that such
party was not represented by the legal counsel of any other party hereto in
connection with the transactions contemplated by this Agreement, nor was he or
it under any belief or understanding that such legal counsel was representing
his or its interests. Except as expressly set forth in this Agreement, each
party shall pay all legal and other costs and expenses incurred or to be
incurred by such party in negotiating and preparing this Agreement; in
performing due diligence or retaining professional advisors; in performing any
transactions contemplated by this Agreement; or in complying with such party's
covenants, agreements and conditions contained herein. Each party agrees that no
conflict, omission or ambiguity in this Agreement, or the interpretation
thereof, shall be presumed, implied or otherwise construed against any other
party to this Agreement on the basis that such party was responsible for
drafting this Agreement.
(b) Cooperation. Each party agrees, without further
consideration, to cooperate and diligently perform any further acts, deeds and
things, and to execute and deliver any documents that may be reasonably
necessary or otherwise reasonably required to consummate, evidence, confirm
and/or carry out the intent and provisions of this Agreement, all without undue
delay or expense.
(c) Interpretation.
(i) Survival. All representations and warranties made by any party in
connection with any transaction contemplated by this Agreement shall
survive the execution and delivery of this Agreement, and the performance
or consummation of any transaction described in this Agreement.
(ii) Entire Agreement/No Collateral Representations. Each party
expressly acknowledges and agrees that this Agreement, and the agreements
and documents referenced herein: (1) are the final, complete and exclusive
statement of the agreement of the parties with respect to the subject
matter hereof; (2) supersede any prior or contemporaneous agreements,
memorandums, proposals, commitments, guaranties,
(d) Arbitration.
(i) Jurisdiction. The parties hereby agree that all controversies,
claims and matters of difference arising out of or in connection with to
the transactions contemplated by this Agreement (collectively, the
"Controversies"), shall, to the maximum extent allowed by law, be resolved
by binding arbitration (an "Arbitration Proceeding") before the American
Arbitration Association (the "Arbitration Authority") according to the
rules and practices of the Arbitration Authority from time-to-time in
force. Without limiting the generality of the foregoing, the following
shall be considered Controversies for this purpose: (A) all questions
relating to the breach of any obligation, warranty, promise, right or
condition hereunder; (B) the failure of any party to deny or reject a claim
or demand of any other party; and (C) any question as to whether the right
to arbitrate a certain dispute exists. This agreement to arbitrate shall be
self-executing without the necessity of filing any action in any court and
shall be specifically enforceable under the prevailing arbitration law.
(ii) Initiation. A party shall institute an Arbitration Proceeding by
sending written notice of an intent to arbitrate (the "Arbitration Notice")
to the other parties and to the Arbitration Authority pursuant to the rules
and regulations of the Arbitration Authority. The Arbitration Notice shall
set forth a description of the dispute, the amount in controversy, and the
remedy sought. An Arbitration Proceeding may proceed in the absence of any
party if the Arbitration Notice has been properly given to such party.
(iii) Selection of Arbitrator. Within ten (10) business days after
receipt of an Arbitration Notice by the parties, they shall mutually agree
upon a single arbitrator (the "Arbitrator") selected from a panel of
retired judges from the Arbitration Authority. If the parties are unable to
agree upon the Arbitrator, then the parties shall, within fifteen (15)
business days after receipt of an Arbitration Notice by the parties, obtain
a list of panelists from the Arbitration Authority equal to the number of
parties plus one. The Arbitration Authority shall arrange and conduct a
conference in person and/or by telephone with all of the parties at a
mutually acceptable time no earlier than ten (10) business days, and no
later than twenty (20) business days, after its delivery of the list of
panelists. At such conference, the parties shall, in such order as
determined by the Arbitration Authority, strike one name from such list
(with no party being allowed to strike a name previously stricken), and the
remaining panelist shall be the Arbitrator. In the event two or more
parties desire to strike the name of the same arbitrator, then the first
party to notify the Arbitration Authority of their decision shall be deemed
to have stricken such name, in which case such other party or parties must
strike another name.
(iv) Representation. Each party shall have the right to be represented
by legal counsel throughout the Arbitration.
(v) Discovery. The parties shall have the right to engage any and all
document discovery as they would be entitled to pursuant to the laws of
civil procedure of the state of New York.
(vi) Written Decision. The Arbitrator shall prepare a written
decision, signed by the Arbitrator, that shall be sent to the parties
within thirty (30) calendar days following the conclusion of the hearing.
(vii) Awards. The parties agree to abide by any award, judgment,
decree or order rendered in any Arbitration Proceeding by the Arbitrator.
The award, judgment, decree or order of the Arbitrator, and the findings of
the Arbitrator, shall be final, conclusive and binding upon the parties
hereto. Any judgment, decree or order of relief granted by the Arbitrator
may be entered or obtained in any court of competent jurisdiction, state or
federal, in the county in which the residence or principal office of a
non-prevailing party is located, as a basis for judgment and for the
issuance of execution for its collection and, at the election of the party
making such filing, with the clerk of one or more other courts, state or
federal, having jurisdiction over the party against whom such an award is
rendered, or such party's property.
(e) Assignment and Delegation; Successors and Assigns.
(i) Prohibition Against Assignment or Delegation. Except as
specifically provided in this Agreement, neither party may sell, license,
transfer or assign (whether directly or indirectly, or by merger,
consolidation, conversion, sale of assets, sale or exchange of securities,
or by operation of law, or otherwise) any of such party's rights or
interests or delegate such party's duties or obligations under this
Agreement, in whole or in part, including to any subsidiary or any
Affiliate, without the prior written consent of the other party, which
consent may be withheld in such other party's sole discretion, provided,
however:
(A) Subject to subsections (B) and (C) below, the Companies may, with
the prior written consent of the Executive, which consent the Executive
shall not unreasonably withhold, assign all of the rights and delegate all
of the obligations of the Companies under this Agreement to any other
Person in connection with the transfer or sale of the entire business of
the Company(ies), or the merger or consolidation of the Companies with or
into any other Person, so long as such transferee, purchaser or surviving
Person shall expressly assumes such obligations of the Companies;
(B) Notwithstanding subsection (A) above to the contrary, no
assignment or transfer under subsection (A) may be effectuated unless the
proposed transferee or assignee first executes such agreements (including a
restated employment agreement) in such form as Executive may deem
reasonably satisfactory to (1) evidence the assumption by the proposed
transferee or assignee of the obligations of the Companies; and (2) to
ensure that the Executivee continues to receive such rights, benefits and
protections (both legal and economic) as were contemplated by the Executive
when entering into this Agreement; and
(C) Notwithstanding subsection (A) above to the contrary: (1) any
assumption by a successor or assign under subsection (A) above shall in no
way release the Companies from any of their obligations or liabilities
while a party to this Agreement; and (2) any merger, consolidation,
reorganization, sale or conveyance under subsection (A) above shall not be
deemed to abrogate the rights of the Executive elsewhere contained in this
Agreement, including without limitation those resulting from a Change In
Control.
Any purported assignment or transfer in violation of the terms of this
subsection 15(f) shall be null and void ab initio and of no force and
effect, and shall vest no rights or interests in the purported assignee or
transferee.
(ii) Successors and Assigns. Subject to subsection 15(f)(i) above,
each and every representation, warranty, covenant, condition and provision
of this Agreement as it relates to each party hereto shall be binding upon
and shall inure to the benefit of such party and his, her or its respective
successors and permitted assigns, spouses, heirs, executors, administrators
and personal and legal representatives, including without limitation any
successor (whether direct or indirect, or by merger, consolidation,
conversion, purchase of assets, purchase of securities or otherwise).
(f) Counterparts; Electronically Transmitted Documents. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument, binding on all parties hereto. Any signature page of this Agreement
may be detached from any counterpart of this Agreement and reattached to any
other counterpart of this Agreement identical in form hereto by having attached
to it one or more additional signature pages. If a copy or counterpart of this
Agreement is originally executed and such copy or counterpart is thereafter
transmitted electronically by facsimile or similar device, such facsimile
document shall for all purposes be treated as if manually signed by the party
whose facsimile signature appears.
(h) Notices. Unless otherwise specifically provided in this
Agreement, all notices, demands, requests, consents, approvals or other
communications (collectively and severally called "notices") required or
permitted to be given hereunder, or which are given with respect to this
Agreement, shall be in writing, and shall be given by: (i) personal delivery
(which form of notice shall be deemed to have been given upon delivery), (ii) by
telegraph or by private airborne/overnight delivery service (which forms of
notice shall be deemed to have been given upon confirmed delivery by the
delivery agency), (iii) by electronic or facsimile or telephonic transmission,
provided the receiving party has a compatible device or confirms receipt thereof
(which forms of notice shall be deemed delivered upon confirmed transmission or
confirmation of receipt), or (iv) by mailing in the United States mail by
registered or certified mail, return receipt requested, postage prepaid (which
forms of notice shall be deemed to have been given upon the fifth {5th} business
day following the date mailed. Notices shall be addressed at the addresses first
set forth above, or to such other address as the party shall have specified in a
writing delivered to the other parties in accordance with this paragraph. Any
notice given to the estate of a party shall be sufficient if addressed to the
party as provided in this section.
WHEREFORE, the parties hereto have executed this Agreement in the City
of Albany, State of New York, as of the date first set forth above.
COMPANIES: IFS INTERNATIONAL, INC.
a Delaware corporation
By:
Xxxxx X. Xxxxx, President & CEO
IFS INTERNATIONAL, INC.
a New York corporation
By:
EXECUTIVE: Xxxx X. Xxxxxxxxx, Executive, Chairman of the Board
