July 25, 2005 Roger C. Gregg Re: Letter Agreement Dear Roger:
Exhibit
10.9
July
25, 2005
Xxxxx
X. Xxxxx
Re:
Letter
Agreement
Dear
Xxxxx:
We
are pleased to inform you that the Board of Directors of IFT Corporation (the
“Company”), the parent company to XxXxxxx Industries, Inc. (“XxXxxxx”), which is
the subsidiary you have been employed with since June 1, 2005, has approved
a
Letter Agreement providing for a long term cash-based incentive bonus for you,
subject to your continued employment and meeting certain criteria, pursuant
to
the terms and conditions below:
1. Transaction
Bonus.
During your employ, upon consummation of a Change in Control, in addition to
any
other payments or benefits applicable that you may be entitled to, you shall
be
entitled to a Transaction Bonus equal to one half of one percent (½ %) of the
“Transaction Value”, which means the aggregate consideration paid in respect of
the Transaction, payable in one lump sum concurrent with the consummation of
the
Transaction; provided you are still employed by the Company.
2. Initial
Eligibility.
You will be eligible for the Transaction Bonus after you cause $10 Million
in
Sales, directly or indirectly by your efforts, to occur.
3. Definition
of Change in Control.
"Change in Control" means an Ownership Change Event or series of related
Ownership Change Events (collectively, a "Transaction")
in which the stockholders of the Company immediately before the Transaction
do
not retain immediately after the Transaction, direct or indirect beneficial
ownership of more than fifty percent (50%) of the total combined voting power
of
the outstanding voting securities of the Company or, in the case of an Ownership
Change Event, the entity to which the assets of the Company were transferred.
An
"Ownership
Change Event"
shall be deemed to have occurred if any of the following occurs with respect
to
the Company: (i) the direct or indirect sale or exchange by the
stockholders of the Company of all or substantially all of the voting stock
of
the Company; (ii) a merger or consolidation in which the Company is a
party; (iii) the sale, exchange, or transfer of all or substantially all of
the assets of the Company (other than a sale, exchange or transfer to one or
more subsidiaries of the Company); or (iv) a liquidation or dissolution of
the Company. The sole exception to Change in Control and Ownership Change Event
as described above shall be any Change in Control or Ownership Change Event
that
may result from the death or incapacity of Xxxxxxx X. Xxxxx wherein his interest
is transferred to his heirs only. In such event for the purposes hereof, no
Change in Control or Ownership Change Event shall be deemed to have
occurred.
4. Amendment
and Termination.
This Letter Agreement may only be amended by written instrument signed by you
and an authorized officer of the Company. This Letter Agreement shall remain
in
effect through May 31, 2009 or earlier termination of your employment with
XxXxxxx Industries, Inc.
5. Termination
for Cause.
The Company may terminate your employment under your Letter Agreement for
“Cause,” at any time, for any of the following reasons: (i) your commission of
any act of fraud, embezzlement or dishonesty, (ii) your unauthorized use or
disclosure of any confidential information or trade secrets of the Company,
(iii) any intentional misconduct or violation of the Company’s Code of Business
Ethics and Conduct by you which has a materially adverse effect upon the
Company’s business or reputation, (iv) your continued failure to perform the
major duties, functions and responsibilities of your position after written
notice from the Company identifying the deficiencies in your performance and
a
reasonable cure period of not less than thirty (30) days or (v) a material
breach of your fiduciary duties as an officer of the Company. Should your
employment cease by reason of a Termination for Cause (as defined herein) or
should you voluntarily resign under circumstances which would otherwise
constitute grounds for a Termination for Cause, then, subject to your
eligibility, no benefits will be payable to you under this Letter
Agreement.
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6. Governing
Law.
This Letter Agreement shall be governed by and construed in accordance with
the
laws of the State of Florida without regard to its conflict of laws principles
to the extent that such principles would require the application of laws other
than the laws of the State of Florida. Venue for any action brought hereunder
shall be exclusively in Broward County, Florida and the parties hereto waive
any
claim that such forum is inconvenient.
7. Arbitration.
Any dispute between the parties to this Letter Agreement in connection with,
arising out of or asserting breach of this Agreement, or any statutory or common
law claim by you relating to the subject matter hereof, shall be exclusively
resolved by binding statutory arbitration. Such dispute shall be submitted
to
arbitration in the city of Fort Lauderdale, County of Broward, state of Florida,
before a panel of three neutral arbitrators in accordance with the Commercial
Rules of the American Arbitration Association then in effect, and the
arbitration determination resulting from any such submission shall be final
and
binding upon the parties hereto. Judgment upon any arbitration award may be
entered in any court of competent jurisdiction.
8. Notices.
All notices required or permitted to be given hereunder shall be in writing
and
shall be personally delivered by courier, sent by registered or certified mail,
return receipt requested or sent by confirmed facsimile transmission addressed
as set forth herein. Notices personally delivered, sent by facsimile or sent
by
overnight courier shall be deemed given on the date of delivery and notices
mailed in accordance with the foregoing shall be deemed given upon the earlier
of receipt by the addressee, as evidenced by the return receipt thereof, or
three (3) days after deposit in the U.S. mail. Notice shall be sent (i) if
to
Company, addressed to Corporate Secretary at Xxxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx
Xxxxx, Xxxxxxx 00000 with a copy to Xxxxx & XxXxxxx, P.A., 0000 Xxxx Xxxxxxx
Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X.
Xxxxx, Esquire, and (ii) if to You, to your address as reflected on the payroll
records of XxXxxxx, or to such other address as either party hereto may from
time to time give notice of to the other.
9. Entire
Agreement.
This Letter Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements, understandings and arrangements, both oral and written, between
you
and the Company with respect to such subject matter. This Agreement may not
be
modified in any way, or any provision waived, unless such modification or waiver
is agreed to in writing and signed by you and by a duly authorized officer
of
the Company.
10. Severability.
The invalidity of any one or more of the words, phrases, sentences, clauses
or
sections contained in this Letter Amendment shall not affect the enforceability
of the remaining portions or any part thereof.
11. At
Will Employment.
Nothing in this Letter Agreement is intended to provide you with any additional
right to continue in the employ of any subsidiary of the Company for any period
of specific duration or interfere with or otherwise restrict in any way your
rights or the rights of our XxXxxxx Industries, Inc. subsidiary, which rights
are hereby expressly reserved by each, to terminate your employment at any
time
and for any reason.
Please
indicate your agreement with the foregoing by signing the Acceptance section
below and returning it to the Company.
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Very
truly yours,
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IFT
CORPORATION
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/s/
Xxxxxxxx Xxxxx
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Witness
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By:
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/s/
Xxxxxxx X. Xxxxxx, President
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/s/
Xxxxxxx Xxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Witness
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Title:
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President
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ACCEPTANCE
I
hereby agree to all the terms and provisions of the foregoing Letter Agreement
as of the date above.
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/s/
Xxxxxx Xxxxx
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Witness
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/s/
Xxxx Mnoles
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By:
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/s/
Xxxxx X. Xxxxx
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Witness
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Name:
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Xxxxx
X. Xxxxx
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