EXHIBIT 10.16
THIS MANAGEMENT SERVICES AGREEMENT is made as of the 25th day of June,
1998.
B E T W E E N
IVI CHECKMATE CORP., a corporation incorporated under the laws of the
State of Delaware,
(hereinafter individually referred to as the "IVI Checkmate" and
collectively with International Verifact Inc. and Checkmate
Electronics, Inc. as the "Corporations")
OF THE FIRST PART
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INTERNATIONAL VERIFACT INC., a corporation incorporated under the laws
of the Province of Ontario,
(hereinafter individually referred to as "IVI" and collectively with
IVI Checkmate Corp. and Checkmate Electronics, Inc. as the
"Corporations")
OF THE SECOND PART
- and -
CHECKMATE ELECTRONICS, INC., a company incorporated under the laws of
the State of Georgia,
(hereinafter individually referred to as "Checkmate" and collectively
with IVI Checkmate Corp. and International Verifact Inc. as the
"Corporations")
OF THE THIRD PART
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L.B.T. INVESTMENTS INC., a corporation incorporated under the laws of
the Province of Ontario,
(hereinafter referred to as the "Manager")
OF THE FOURTH PART
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L. XXXXX XXXXXXX, of the Town of Oakville, in the Province of Ontario,
(hereinafter referred to as the "Thomson")
OF THE FIFTH PART
WHEREAS the Manager has heretofore provided certain services to IVI
pursuant to a Management Services Agreement made as of the 8th day of May, 1996,
as amended by agreements made as of October 1, 1996, July 30. 1997 and February
25, 1998 (the "Original Services Agreement");
AND WHEREAS effective as of the date of this Agreement IVI Checkmate
has become the parent company of IVI and Checkmate;
AND WHEREAS the Corporations desire to retain the Manager to provide
certain services to the Corporations, including the provision of Thomson to act
in the capacity of President and Chief Executive Officer of IVI Checkmate,
President and Chief Executive Officer of IVI, and the Chief Executive Officer of
Checkmate;
AND WHEREAS the Manager is prepared to provide the services required
by the Corporation;
AND WHEREAS Thomson is prepared, at the request of the Manager, to
accept the appointments set forth above;
AND WHEREAS the Manager and IVI have agreed to terminate the Original
Services Agreement upon the execution of this Agreement;
and sufficiency of which is hereby acknowledged) and for other good and valuable
consideration, the parties agree as follows:
1. Term
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This Agreement shall be in effect immediately upon execution and shall
remain in effect until it is terminated as provided in Section 5 hereafter.
2. Appointment, Acceptance and Duties
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(a) The Corporations hereby retain the Manager to provide to the
Corporations the services of Thomson to serve the Corporations and any
subsidiaries and affiliates of the Corporations in such capacity or capacities
and to perform such duties and to exercise such powers pertaining to the
management and operation of the Corporations and their respective subsidiaries
and affiliates as may be determined from time to time by the Board of Directors
of IVI Checkmate consistent with Thomson's experience and, without limiting the
generality of the
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foregoing, to serve as the President and Chief Executive Officer of IVI
Checkmate, and initially, until such time as determined otherwise by the Board
of Directors of IVI Checkmate, as the President and Chief Executive Officer of
IVI, the Chief Executive Officer of Checkmate and the Chairman of IVI Ingenico
Inc. and the Manager agrees to provide such services. During the currency of
this Agreement, Thomson shall:
(i) report to the board of directors of IVI Checkmate and shall devote
his full time and attention and his best efforts during normal
business hours to the business and affairs of the Corporations;
(ii) exercise the powers and authorities and fulfil the responsibilities
of his position honestly, diligently and faithfully to the best of
his abilities and in the best interests of the Corporations; and
(iii) use his best efforts to promote the interests and goodwill of the
Corporations.
(b) During the currency of this Agreement the Corporations and the
Manager agree that the Corporations shall, unless Thomson
otherwise requests, ensure that Thomson will be nominated by
management of the Corporations as a director of each of IVI
Checkmate, IVI, Checkmate and IVI Ingenico Inc.
3. Management Fee
--------------
(a) For the provision of the services herein set forth, subject to review
as hereinafter provided, the Corporations agree to pay to the Manager in the
aggregate a fee at an annual rate of US$275,000 for the period from the date
hereof to December 31, 1998, an annual fee of US$300,000 for the calendar year
1999 and an annual fee of US$335,000 for the calendar year 2000; provided always
that the annual fee for the remainder of the calendar year 1998 and calendar
years 1999 and 2000 may be at such higher amount as may be agreed by the Manager
and IVI Checkmate. The Manager agrees that it will provide invoices to the
Corporations as they may direct in writing, on a monthly basis, in arrears, for
one-twelfth of the then current annual fee. The Corporations and the Manager
agree that on or before October 1, 2000 and thereafter before October 1 of each
subsequent year during the currency of this Agreement, the annual fee shall be
reviewed by the Manager and the board of directors of IVI Checkmate with a view
to ensuring that the Manager's fee is fair and reasonable considering the
services to be provided and considering the performance of Thomson in carrying
out his obligations set forth in Subsection 2(a) hereof. It is understood and
agreed that in no event shall the annual fee to be paid to the Manager be
reduced without the Manager's prior written consent. The amount of any increase
in the annual fee shall be determined solely by the board of directors of IVI
Checkmate in their absolute discretion.
(b) The Manager shall be entitled to receive a performance bonus of not
less than US$50,000.00 during each calendar year of this Agreement (including
the 1998 calendar year). The Manager and the board of directors of IVI Checkmate
shall determine the Manager's bonus program on or before April I in each year
(commencing April 1, 1999) for that calendar year and
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such program will be based upon the Manager meeting reasonably set, measurable
performance objectives approved by the board of directors of IVI Checkmate.
(c) The Manager shall permit Thomson to participate in such stock options
plans as may from time to time be established for directors and senior officers
of the Corporations. including the 1998 Long-Term Incentive Plan of IVI
Checkmate (the "Plan") and any like plan adopted by the Corporations or any of
them, in such manner as the board of directors of IVI Checkmate may, in their
absolute discretion, determine. IVI Checkmate hereby confirms and agrees that:
(i) Thomson has been granted 233,250 Options (as such term is defined
in the Plan) as of the date of this Agreement which Options vest
immediately, expire, subject to the terms of the Plan, on the
25th day of June, 2007 and are exercisable at an exercise price
per share of Stock (as such term is defined in the Plan) at the
greater of US$6.81 and the Fair Market Value (as such term is
defined in the Plan) as of the date of this Agreement; and
(ii) Thomson shall be granted, so long as this Agreement shall not be
otherwise terminated in accordance with the terms hereof, 150,000
Options (as such term is defined in the Plan) on January 14,
1999, which Options shall vest on the date of the grant, shall
expire, subject to the terms of the Plan, on January 14, 2007 and
shall be exercisable at an exercise price per share of Stock (as
such term is defined in the Plan) at the Fair Market Value (as
such term is defined in the Plan) as of January 14, 1999.
(d) The Manager shall submit to the Corporations or as they may direct in
writing, monthly in arrears, in addition to the invoice in respect of its fees,
an invoice in respect of its reasonable expenses actually and properly incurred
by it in connection with carrying out its duties hereunder which such expenses
will include an amount (presently Cdn.$1,000.00 per month (the "automobile
payment") plus reasonable operating and maintenance expenses) as agreed by the
Manager and IVI Checkmate from time to time, in respect of the provision of an
automobile for Thomson. The Corporations agree that they shall reimburse the
Manager for such expenses no later than the 15th day of the month following
the month in which the Manager submitted same.
(e) The Corporations shall permit Thomson to be registered with such health
benefit programs as the Corporations may implement from time to time on behalf
of its employees (which shall include at least life insurance, medical
insurance, disability insurance, dental insurance and a drug plan) and the
Corporations will reimburse the Manager for the costs of providing such benefits
to Thomson.
(f) The Corporations shall reimburse the Manager for its costs in paying
for Thomson's annual membership or association fees for such trade and C.E.O.
associations as the Corporation and the Manager may agree (to an aggregate
maximum amount of Cdn.$6,000.00
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per year) and its costs in paying for Thomson's annual fees in a social club (to
a maximum of Cdn.$3,000.00 per year).
(g) The Corporations acknowledge that IVI is presently a Corporate Member
of The Xxxx Xxxxxx Club (the "Club") with Thomson designated as the designated
executive entitled to the privileges of Club membership. The Corporations agree
to maintain the membership in the Club on behalf of IVI and to designate Thomson
as the designated executive entitled to membership privileges during the
currency of this agreement and to pay on a timely basis all annual fees with
respect to such membership. If this Agreement is terminated for any reason other
than reasons set forth in Section 5, then the Corporations shall forthwith take
all necessary steps, at their expense, including without limitation, the payment
of all transfer fees, to transfer the membership in the Club to the Manager or
Thomson, as directed in writing by the Manager.
4. Vacation
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The Manager agrees that Thomson shall be entitled to only four weeks
vacation per year and that Thomson shall only take such vacation at the most
appropriate time considering the demands of the business of the Corporations and
taking into account the staffing requirements of the Corporations and the need
for the timely performance of the services to be provided pursuant to the terms
of this Agreement.
5. Termination
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(a) IVI Checkmate, on behalf of the Corporations, may terminate this
Agreement without notice or any payment in lieu of notice for cause.
(b) This Agreement may immediately be terminated by IVI Checkmate, on
behalf of the Corporations, without notice to the Manager if Thomson becomes
permanently disabled. Thomson shall be deemed to have become permanently
disabled if in any year during the currency of this Agreement, because of ill
health, physical or mental disability, or for other causes beyond control of
Thomson, Thomson has been continuously unable or unwilling or has failed to
perform his duties for 120 consecutive days, or if, during any year during the
currency of this Agreement he has failed to perform his duties for a total of
180 days, consecutive or not. The term "any year during the currency of this
Agreement" means any period of 12 consecutive months during which the Agreement
is in full force and effect.
(c) IVI Checkmate, on behalf of the Corporations, may terminate this
Agreement without notice upon the death of Thomson.
(d) The Manager may terminate this Agreement on not less than 30 days'
notice to the Corporation.
6. Termination Payments
--------------------
(a) Upon termination of this Agreement for the reason set forth in
Subsection 5(a) above, the Manager shall not be entitled to any termination
payment other than its fees calculated
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pro rata up to and including the date of termination and payment of any
outstanding amounts due under Subsections 3(d), 3(e) and 3(f) hereof. Upon
termination of this Agreement for any of the reasons set forth in Subsections
5(b), (c) or (d) above, the Manager shall be entitled to Attorney's fees
calculated pro rata up to and including the date of termination, payment of any
outstanding amounts due under Subsections 3(d), 3)(e) and 3(f) hereof and the
Corporations shall pay to the Manager its pro rata entitlement under the then
current bonus program contemplated by Subsection 3(b) hereof.
(b) If this Agreement is terminated by IVI Checkmate, on behalf of the
Corporations, for any reason, other than the reasons set forth in Section 5,
then the Corporations shall forthwith pay to the Manager or as the Manager
directs the following:
(i) three times the aggregate of the annual fee (referred to in
Subsection 3(a)) and the performance bonus (referred to in
Subsection 3(b)) paid and/or earned by the Manager in the year
immediately preceding the year of termination;
(ii) three times the total automobile payments referred to in
Subsection 3(d) paid in the year immediately preceding the year
of termination;
(iii) three times the cost of providing the benefits referred to in
Subsections 3(e) and 3(f) in the year immediately preceding the
year of termination; and
(iv) the cost of the Manager retaining on behalf of Thomson
outplacement services provided by the KPMG Management Consulting
C.E.O. Program or an equivalent firm acceptable to the Manager.
The termination payments described in this Subsection are the only
payments the Manager will receive in the event of the termination of this
Agreement for the reasons contemplated in this Subsection (b).
7. Confidentiality
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Each of the Manager and Thomson acknowledge and agree that:
(a) in the course of providing the services contemplated by this Agreement
and in particular in the case of Thomson performing his duties and
responsibilities as the Chief Executive Officer of the Corporations,
each of them has had and will continue in the future to have access to
and has been and will be entrusted with detailed confidential
information and trade secrets (printed or otherwise) concerning past,
present, future and contemplated products, services, operations,
technology and marketing techniques and procedures of the Corporations
and their subsidiaries, including, without limitation, Information
relating to addresses, preferences, needs and requirements of past,
present and prospective clients, customers, suppliers and employees of
the Corporations and their subsidiaries
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(collectively, "Confidential Information"), the disclosure of any of
which to competitors of the Corporations or to the general public, or
the use of same by the Manager, Thomson or any competitor of the
Corporations or any of its subsidiaries, would be highly detrimental
to the interests of the Corporations;
(b) in the course of performing his duties and responsibilities for the
Corporations, Thomson has been and will continue in the future to be a
representative of the Corporations to their customers, clients and
suppliers and as such has had and will continue in the future to have
significant responsibility for maintaining and enhancing the goodwill
of the Corporations with such customers, clients and suppliers and
would not have, except by virtue of the provision of services pursuant
to this Agreement, developed a close and direct relationship with the
customers, clients and suppliers of the Corporations;
(c) Thomson, in acting in the capacity of the Chief Executive Officer of
the Corporations, owes fiduciary duties to the Corporations, including
the duty to act in the best interests of the Corporations;
(d) the right to maintain the confidentiality of the Confidential
Information, the right to preserve the goodwill of the Corporations
and the right to the benefit of any relationship that has developed
between Thomson and the customers, clients and suppliers of the
Corporations by virtue of the provision of service pursuant to this
Agreement constitute proprietary rights of the Corporations, which the
Corporations are entitled to protect; and
(e) the Manager and Thomson shall forthwith transfer to the benefit of the
Corporations any rights and interest in any invention and discovery of
any process or technology related in any manner to the business of the
Corporations Thomson could imagine, conceive or create during the term
of this Agreement.
In acknowledgement of the matters described above and in consideration of the
payments to be paid to the Manager pursuant to this Agreement, the Manager and
Thomson hereby agree that they will not, directly or indirectly, disclose to any
person or in any way make use of (other than for the benefit of the
Corporations), in any manner, any of the Confidential Information, provided that
such Confidential Information shall be deemed not to include information that is
or becomes generally available to the public other than as a result of
disclosure by the Manager or Thomson.
8. Non-Solicitation
----------------
The Manager and Thomson hereby agree that they will not, during the
currency of this Agreement and for a period of three years after the termination
of this Agreement, be a party to or abet any solicitation of customers, clients
or suppliers of the Corporations or any of their subsidiaries, to transfer
business from the Corporations or any of its subsidiaries to any other person,
or seek in any way to persuade or entice any employee of the Corporations
(except the
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person who fills the position of Executive Assistant to Thomson) or any of their
subsidiaries to leave that employment or to be a party to or abet any such
action.
9. Disclosure
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During the currency of this Agreement, the Manager and Thomson shall
promptly disclose to the board of directors of IVI Checkmate, IVI, and
Checkmate, as applicable, by written notice to the Secretary of such company
full information concerning any interest, direct or indirect, of the Manager or
Thomson (as owner, shareholder, partner, lender or other investor, director,
officer, employees, consultant or otherwise) or any member of Thomson's family
in any business that is reasonably known to the Manager or to Thomson to
purchase or otherwise obtain services or products from, or to sell or otherwise
provide services or products to any of the Corporations or to any of their
suppliers or customers. Notwithstanding the foregoing it is agreed and
acknowledged that both the Manager and Thomson shall be entitled to engage in
normal dealings with any customer of or supplier to the Corporations and to
invest in any public company provided that any such investment does not exceed
5% of the outstanding securities of such public company.
10. Return of Materials
-------------------
All files, forms, brochures, books, materials, written correspondence,
memoranda, documents, manuals, computer disks, software products and lists
(including lists of customers, suppliers, products and prices) pertaining to the
business of the Corporations or any of their subsidiaries and associates that
may come into the possession or control of the Manager or Thomson shall at all
times remain the property of the Corporations or such subsidiary or associate,
as the case may be. On termination of this Agreement for any reason, the Manager
and Thomson agree to deliver promptly to the Corporations all such property of
the Corporations in their possession or directly or indirectly under their
control. The Manager and Thomson agree not to make for their own use or that of
any other party reproductions or copies of any such property or other property
of the Corporations.
11. Governing Law
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This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario. The parties do hereby irrevocably attorn to
the non-exclusive jurisdiction of the courts of the Province of Ontario.
12. No Assignment
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This Agreement may not be assigned without the consent of all of the
parties hereto.
13. Survival
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The parties agree and acknowledge that notwithstanding the termination
of this Agreement pursuant to Section 5 hereof the provisions of Section 7, 10
and 15 hereof shall
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survive in perpetuity and the provisions of Section 8 shall survive for three
(3) years from the date of such termination.
14. Severability
------------
If any provision in this Agreement including the breadth or scope of
such provision, is determined to be invalid or unenforceable in whole or in part
by any court of competent jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remaining provisions. or
part thereof, of this Agreement and such remaining provisions, or part thereof,
shall remain enforceable and binding.
15. Enforceability
--------------
The Manager and Thomson hereby confirm and agree that the covenants
and restrictions pertaining to them contained in this Agreement are reasonable
and valid and hereby further acknowledge and agree that the Corporations would
suffer irreparable injury in the event of any breach by the Manager or Thomson
of their obligations under any such covenant or restriction. Accordingly, each
of the Manager and Thomson hereby acknowledge and agree that damages would be an
inadequate remedy at law in connection with any such breach and that the
Corporations shall therefore be entitled in lieu of any action for damages,
temporary and permanent injunctive relief enjoining and restraining the Manager
and Thomson from any such breach.
16. Successors
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This Agreement shall be binding on and enure to the benefit of the
successors and permitted assigns of the Corporations and the Manager and the
heirs, executors, personal legal representatives and permitted assigns of
Thomson.
17. Notices
-------
Any notice or other communication required or permitted to be given
hereunder shall be in writing and either delivered by hand or telecommunications
facility or mailed by prepaid registered mail. At anytime other than during a
general discontinuance of postal service due to strike, lock-out or otherwise, a
notice so mailed shall be deemed to have been received three business days after
the post-marked date thereof or, if delivered by hand or telecommunications
facility, shall be deemed to have been received at the time it is delivered. If
there is general discontinuance of postal service due to strike, lock-out or
otherwise, a notice sent by prepaid registered mail shall be deemed to have been
received three business days after the resumption of postal service. Notices
shall be addressed as follows:
(a) if to the Corporations:
IVI Checkmate Corp.
0000 Xxxxxxx Xxxx
Xxxxxxx, XX
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XXX 00000
(b) if to the Manager:
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
(c) if to Thomson:
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
18. Legal Advice
------------
Thomson hereby represents and warrants to the Manager and to the
Corporations and acknowledges and agrees that he had the opportunity to seek and
was not prevented nor discouraged by the Corporations or the Manager from
seeking independent legal advice prior to the execution and delivery of this
Agreement and that, in the event that he did not avail himself with that
opportunity prior to signing this Agreement, he did so voluntarily without any
undue pressure and agrees that his failure to obtain independent legal advice
shall not be used by him as a defense to the enforcement of his obligations
under this Agreement.
19. Waiver of Breach
----------------
The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
thereof.
20. Termination of Original Services Agreement
------------------------------------------
The Manager and Thomson agree that upon execution of this Agreement
they shall execute an agreement terminating the Original Services Agreement with
IVI.
21. Amendments
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This Agreement may only be amended by instrument in writing executed
by all of the parties hereto.
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IN WITNESS THEREOF the parties have executed this Agreement on the
date first written above.
IVI CHECKMATE CORP.
Per: /s/ X. X. Xxxxxx
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Name: J. Xxxxxxxx Xxxxxx
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Title: Chairman
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INTERNATIONAL VERIFACT INC.
Per: /s/ X. Xxxxxxx
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Name: X. Xxxxxxx
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Title: Chairman
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CHECKMATE ELECTRONICS, INC.
Per: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
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Title: President
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L.B.T. INVESTMENTS INC.
Per: /s/ L. Xxxxx Xxxxxxx
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Name:
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Title:
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/s/ Xxxx X. Xxxxxxx /s/ L. Xxxxx Xxxxxxx
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Witness L. XXXXX XXXXXXX
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