748245 October 5, 2004
Exhibit 10.8
AMENDMENT TO 1991 AGREEMENTS
This Amendment to two 1991 Agreements ("AMENDMENT") is entered into by and
between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇.
▇▇▇▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ Technology Corporation ("BTC"), ▇▇▇▇▇▇▇ Graphics Systems,
Inc. ("BGS") and ▇▇▇▇▇▇▇ Technology Company, Inc. ("BTI") of ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
W I T N E S S E T H:
A. On April 11, 1991, BTI and ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ entered into an agreement
that provided, among other things, that BTI would pay certain sums to ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ each year for the remainder of his natural life in return for the
services and other consideration provided by ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ in accordance with
Agreements ## 1 and 2 (as defined below).
B. Also on April 11, 1991, BTC and BGS entered into an agreement with ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ under which they agree to pay him certain sums for the remainder of
his natural life in return for the services and other consideration provided by
▇▇. ▇▇▇▇▇▇▇▇▇▇▇ in accordance with Agreements ## 1 and 2.
C. There is now a need to correct an unintentional failure by the parties
to increase the payments due ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ under the BTC/BGS 1991 agreement
and agree on the calculation of the monies that were to have been be paid to ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ under the BTC/BGS agreement.
D. The parties wish to agree on the adjustments required for an equitable
provision for future increases in amounts due under the BTC/BGS 1991 agreement
and amend and restate the two agreements in a manner so as to avoid future
problems.
Now, therefore, in consideration of the mutual promises set forth below and
other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows.
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1. DEFINITIONS:
1.1. "AGREEMENT #1" shall mean the agreement dated April 11, 1991 between
▇▇. ▇▇▇▇▇▇▇▇▇▇▇ and BTI.
1.2. "AGREEMENT #2" shall mean the agreement dated April 11, 1991 between
▇▇. ▇▇▇▇▇▇▇▇▇▇▇ and BGS and BTC.
1.3. "BASE PAYMENT" shall mean Four Hundred and Ten Thousand, Forty Dollars
($410,040). The Base Payment shall be comprised of two components: (a)
a "FLAT PAYMENT" of Two Hundred Thousand Dollars ($200,000); and (b),
an "ESCALATING PAYMENT" that shall begin at Two Hundred and Ten
Thousand, Forty Dollars ($210,040), and grow annually pursuant to the
terms set forth in Section 3 below.
1.4. "BGS" shall mean ▇▇▇▇▇▇▇ Graphic Systems, Inc.
1.5. "BTC" shall mean ▇▇▇▇▇▇▇ Technology Corporation.
1.6. "BTI" shall mean ▇▇▇▇▇▇▇ Technology Company, Inc.
1.7. "▇▇▇▇▇▇▇" shall mean BTI, BTC and BGS.
1.8. "EFFECTIVE DATE" shall mean July 1, 2004.
2. AMENDMENT OF AGREEMENTS ## 1 AND 2.
2.1. AGREEMENTS ## 1 AND 2 AMENDED. Upon the execution of this Agreement,
and effective as of July 1, 2004, Agreements ## 1 and 2 are hereby
amended by the parties to be consistent with the terms of this
Amendment. Without limiting the foregoing, the first three (3)
sentences of Section 3 of Agreement # 1 and Section 1 of Agreement # 2
are deleted and replaced by the terms of this Amendment.
2.2. AMENDED OBLIGATIONS. Agreements ## 1 and 2 are hereby amended so that,
with regard to future payments to ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ of the sums
described in Section 1.3 above, ▇▇▇▇▇▇▇ shall have only the following
obligations:
2.2.1. In the twelve month period commencing July 1, 2004, ▇▇▇▇▇▇▇
shall pay to ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ the Base Payment, payable in
twelve equal monthly installments in return for the services
and other consideration provided by ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ in
accordance with Agreements ## 1 and 2. Any payments that
▇▇▇▇▇▇▇ made for this time period under Agreements ## 1 and
2 shall be credited to ▇▇▇▇▇▇▇'▇ obligations under this
Amendment, on a dollar for dollar basis.
2.2.2. In each subsequent twelve month period, commencing July 1, 2005
and continuing for the remainder of ▇▇. ▇▇▇▇▇▇▇▇▇▇▇'▇
natural life, ▇▇▇▇▇▇▇
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shall continue to pay ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ the Flat Payment
($200,000.00) in twelve equal monthly installments in return
for the services and other consideration provided by ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ in accordance with Agreements ## 1 and 2.
2.2.3. In addition to the Flat Payments made pursuant to Section
2.2.2, in each subsequent twelve month period, commencing
July 1, 2005 and continuing for the remainder of ▇▇.
▇▇▇▇▇▇▇▇▇▇▇'▇ natural life, ▇▇▇▇▇▇▇ shall pay to ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ the Escalating Payment in twelve equal monthly
installments in return for the services and other
consideration provided by ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ in accordance with
Agreements ## 1 and 2.
2.3 REMAINING OBLIGATIONS UNDER SECTION 3 OF AGREEMENT #1. In addition,
the parties hereby restate and ratify BTI's obligations under the
remaining portion of Section 3 of Agreement #1, which now reads: "BTI
shall also reimburse you for bona-fide expenses incurred in the
performance of your duties hereunder; provided that all such expenses
shall be submitted monthly and properly documented in the same manner
as required by BTI of its senior executives. Travel reimbursement
shall be at first class rates. BTI shall maintain your current
participation in its group health and life insurance plans in the same
manner as provided in prior years under the Prior Agreements."
2.4. TERMINATION UPON DEATH. ▇▇▇▇▇▇▇'▇ payment obligations under Section
2.2 of this Agreement shall terminate immediately upon the death of
▇▇. ▇▇▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ shall pay a pro-rata amount for the last
month of ▇▇. ▇▇▇▇▇▇▇▇▇▇▇'▇ life. (Example: If ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ were to
die on the 10th of the month in the first year of this Agreement, BTI
would be liable to pay his estate for ten days' worth of the monthly
payment. If the monthly payment was $34,170, BTI would owe $11,390
(assuming a 30-day month)).
3. CALCULATION OF ON-GOING ESCALATION PAYMENTS.
Effective with the payments commencing on July 1, 2005, the Escalating
Payment shall be increased by a percentage amount as follows: If in the
proceeding calendar year, the Consumer Price Index, All Urban Consumers,
Northeast Region Average, All Items (the "CPI") increased, then the Escalating
Payment shall increase by the same percentage; provided however, that in no
event shall the Escalating Payment increase more than Four Percent (4%) in any
one twelve month period.
4. ADDITIONAL ONE-TIME PAYMENT.
4.1 PAYMENT IN LIEU OF PRIOR OBLIGATIONS. In addition to the payments set
forth above, ▇▇▇▇▇▇▇ shall, within thirty (30) days following the execution
of this Agreement, pay to ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ the sum of One Hundred Eighty
Thousand Dollars ($180,000) in total satisfaction all claims ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ had or might have had under Agreements ## 1 and 2 for any past
due amounts.
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5. RELEASE BY ▇▇. ▇▇▇▇▇▇▇▇▇▇▇.
5.1. In consideration of the sum of $180,000 paid to him pursuant to
Section 4 of this Agreement, ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ hereby - irrevocably and
unconditionally releases, acquits and forever discharges ▇▇▇▇▇▇▇ and
each of its agents, directors, officers, shareholders and executives,
from any and all claims, charges, complaints, causes of action,
demands or suits (including attorneys' fees and costs actually
incurred) of any nature whatsoever, known or unknown, including, but
not limited to, rights under federal, state or local laws, which ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ now has, claims to have, own or hold, or which ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ at any time heretofore had arising from Agreement #1 and
Agreement #2, which arose prior to the date of execution of this
Settlement Agreement and Amendment; provided, however, that this
release shall not extend to any claims to enforce the provisions of
this Amendment. Without limiting the foregoing, ▇▇. ▇▇▇▇▇▇▇▇▇▇▇
expressly releases ▇▇▇▇▇▇▇ from any and all claims ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ had
or now has with regard to Agreements ## 1 and 2, whether known or
unknown and waives any and all rights to increases in the payments due
him under Agreement #1 and Agreement #2 except as provided by this
Amendment.
6. PAYMENT IN EVENT OF SALE OF ▇▇▇▇▇▇▇.
6.1 SALE OF ASSETS. In the event that ▇▇▇▇▇▇▇ sells all or substantially
all of its assets to a third party, ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ shall have the following
option:
6.1.1 ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ may elect to have ▇▇▇▇▇▇▇ continue to pay him
under Agreements ## 1 and 2, as amended by this Amendment, on a
year-to-year basis for the remainder of his natural life in
return for the services and other consideration provided by ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ in accordance with Agreements ## 1 and 2; or
6.1.2 ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ may elect to have ▇▇▇▇▇▇▇ make a final payment,
in complete fulfillment of ▇▇▇▇▇▇▇'▇ obligations under Agreements
## 1 and 2, as amended by this Amendment, of ONE AND FOUR-TENTHS
(1.4X) of the then-current annual (i.e., July 1-June 30) payments
being made by ▇▇▇▇▇▇▇ as of the date of the agreement for the
sale of the assets. ▇▇▇▇▇▇▇, as the case may be, shall make that
payment within ninety (90) days following ▇▇. ▇▇▇▇▇▇▇▇▇▇▇'▇
election. After making that payment, neither ▇▇▇▇▇▇▇ nor any
other ▇▇▇▇▇▇▇ entity, nor ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ shall have any further
obligations under Agreements ## 1 and 2 as amended by this
Amendment.
6.1.3 ▇▇▇▇▇▇▇ shall notify ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ of the sale no later than
the second business day following the execution of the sale
agreement. Within thirty (30) calendar days from the date the
sale agreement is executed by both parties to the sale, ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ shall deliver to ▇▇▇▇▇▇▇ his election under Sections
6.1.1 and 6.1.2. If ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ fails to make an election
within that thirty day
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period, ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ shall be deemed to have elected to have
▇▇▇▇▇▇▇ continue to make payments pursuant to Section 6.1.1 of
this Agreement.
6.2 SALE OF STOCK. In the event that a third party (except ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, any of his children, or any of their families) acquires
shares of any class or classes of voting stock of the Company
representing Fifty Percent (50%) or more of the total votes entitled
to be cast by all of the then outstanding shares of all classes of
voting stocks of the Company, ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ shall have the following
option:
6.2.1 ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ may elect to have ▇▇▇▇▇▇▇ continue to pay him
under this Agreement on a year-to-year basis for the remainder of
his natural life in return for the services and other
consideration provided by ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ in accordance with
Agreements ## 1 and 2; or
6.2.2 ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ may elect to have ▇▇▇▇▇▇▇ make a final payment
equal to the then-current annual (i.e., July 1-June 30) payments
being made by ▇▇▇▇▇▇▇ as of the date of the agreement for the
sale of the assets. ▇▇▇▇▇▇▇ shall make that payment within ninety
(90) days following ▇▇. ▇▇▇▇▇▇▇▇▇▇▇'▇ election. After making that
payment, neither ▇▇▇▇▇▇▇ (nor its successor corporation), nor any
other ▇▇▇▇▇▇▇ entity, nor ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ shall have any further
obligations under Agreements ## 1 and 2 as amended by this
Amendment.
6.2.3 ▇▇▇▇▇▇▇ (or its successor corporation) shall notify ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ of the sale of a majority of BTI's outstanding voting
shares of stock no later than the second business day following
transfer of the controlling shares. Within thirty (30) calendar
days from the date the controlling shares are transferred, ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ shall deliver to ▇▇▇▇▇▇▇ (or its successor
corporation) his election under Sections 6.2.1 and 6.2.2. If ▇▇.
▇▇▇▇▇▇▇▇▇▇▇ fails to make an election within that thirty day
period, ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ shall be deemed to have elected to have
▇▇▇▇▇▇▇ (or its successor corporation) continue to make payments
pursuant to Section 6.2.1.
7. MISCELLANEOUS.
7.1 NOTICES. Any notice, demand or request required or permitted to be
given under this Agreement shall be either hand-delivered or deposited, postage
prepaid, in the U.S. mail, certified or registered mail, addressed as follows:
If to ▇▇▇▇▇▇▇: with a copy to
▇▇▇▇▇▇▇ Technology Company, Inc. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ CityPlace I
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Att:President
If to ▇▇. ▇▇▇▇▇▇▇▇▇▇▇: with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ESQ.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, PC
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇
New London, CT 06320
Changes to the foregoing individuals or addresses may be made by notice
similarly given.
7.2 CHOICE OF LAW AND VENUE. This Agreement shall be governed by the laws
of the State of Connecticut, without regard to its choice of law
provisions. ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ consents to the jurisdiction of the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of Connecticut, and to the Superior
Court of the State of Connecticut.
7.3 ENTIRE AGREEMENT. Agreement #1, Agreement #2, and this Amendment are
the entire agreement between ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇. This
Agreement may only be modified by a written amendment signed by both
parties. Except as modified herein Agreements ## 1and 2 are restated
in their entirety; provided, however, in the event of any conflict
between the provisions of this Amendment and Agreements ## 1 and 2,
the provisions of this Amendment shall prevail. Any capitalized terms
used in this Amendment that are not defined herein shall have the
meaning given in Agreements ## 1 and 2.
7.4 FORCE MAJEURE. Neither party shall be liable for delay in performance
hereunder due to forces beyond its control, including but not limited
to acts of God, fires, strikes or other labor disputes, acts of war or
intervention by any governmental authority, and each party shall take
steps to minimize any such delay.
7.5 CONTRACT INTERPRETATION. Both parties have had an opportunity to
review this Amendment with their respective legal counsel and have
negotiated the terms of this Agreement to their satisfaction. In
interpreting the meaning of any provision of this Agreement, the
parties request that the tribunal deem each party to be the drafter of
the Agreement.
7.6 NO WAIVER. The waiver of any breach of this Agreement by the
non-breaching party shall not constitute a waiver of any other breach
or of any future breach of the same obligation.
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7.7 NO ASSIGNMENT. ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ MAY NOT ASSIGN his rights or
obligations under Agreements ## 1 and 2, as amended by this Amendment,
without the prior written consent of ▇▇▇▇▇▇▇. Any attempted assignment
in violation of this sub-section shall be void.
7.8 DUPLICATE AGREEMENTS. This Amendment may be executed in two
counterparts, each of which shall be considered to be an original
contract for evidentiary purposes.
7.9 EFFECTIVE DATE. This Agreement shall be deemed effective as of July 1,
2004.
7.10 SUCCESSORS AND ASSIGNS. The terms and provisions of this Agreement
shall inure to the benefit of and be binding upon the heirs,
successors, personal representatives, and assigns of the parties
hereto.
To signify their acceptance of the terms and conditions set forth above,
the parties have caused their authorized representatives to execute this
Agreement as follows:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
________________________________
Date: ______________________________
▇▇▇▇▇▇▇ TECHNOLOGY COMPANY, INC.
By: _______________________________
Title: ______________________________
Date: ______________________________
▇▇▇▇▇▇▇ TECHNOLOGY CORPORATION
By: _______________________________
Title: ______________________________
Date: ______________________________
▇▇▇▇▇▇▇ GRAPHIC SYSTEMS, INC.
By: _______________________________
Title: ______________________________
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Date: ______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ subscribed, sealed, and declared to be his Amendment
to 1991 Agreements, in the presence of us, who in his presence and at his
request and in the presence of each other have hereunto subscribed our names as
witnesses at ________________, ________________, this ______ day of August,
2004.
__________________________________ of _______________________________
__________________________________ of _______________________________
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We, the undersigned, being duly sworn, depose and say that we witnessed the
execution of the within Amendment to 1991 Agreements by the within named party,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇; that said ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ subscribed said Amendment
to 1991 Agreements in our presence; that we thereafter subscribed the same as
witnesses in the presence of said ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and in the presence of
each other and at the request of said ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇; that the said
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ at the time of the execution of said Amendment to 1991
Agreements appeared to us to be of full age and mentally alert and capable in
every respect to execute a contract dealing with his legal rights and
obligations and appeared to understand that he was releasing certain legal
claims in exchange for a payment of money; and that we make this affidavit at
the request of said ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇.
----------------------------------
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STATE OF _______________ )
) ss. _______________ [date]
COUNTY OF ________________ ) [city]
Then and there personally appeared before me,
____________________________, and ______________________________ and
subscribed and made oath unto the truth of the foregoing affidavit.
___________________________________________
[Commissioner of the Superior Court]
Notary Public
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Commission
Expires:_______________________
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