Exhibit 10.5
EMPLOYMENT AGREEMENT
AGREEMENT, effective as of the 4th day of September, 2001 by and between i3
MOBILE, INC., a Delaware corporation with principal executive offices at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("i3 Mobile"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
residing at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇").
W I T N E S S E T H :
WHEREAS, i3 Mobile is desirous of employing ▇▇▇▇▇▇▇▇▇ as Senior Vice President,
Marketing of i3 Mobile and ▇▇▇▇▇▇▇▇▇ is desirous of serving in such capacity for
i3 Mobile, all upon the terms and subject to the conditions hereinafter
provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto, intending to be legally bound, agree as follows:
1. Employment
i3 Mobile agrees to employ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇▇ agrees to be employed by i3
Mobile, upon the terms and subject to the conditions of this Agreement.
2. Term
The employment of ▇▇▇▇▇▇▇▇▇ by i3 Mobile as provided in Section 1 will be for a
period of two (2) years commencing on the date hereof, unless sooner terminated
as hereinafter provided (the "Term"), and shall automatically renew from year to
year thereafter unless either party gives at least ninety (90) days prior
written notice of termination. ▇▇▇▇▇▇▇▇▇ understands and accepts that all terms
contained herein are subject to the formal written ratification and approval of
the Compensation Committee and/or the Board of Directors of i3 Mobile.
3. Duties; Best Efforts; Indemnification
▇▇▇▇▇▇▇▇▇ shall serve as Senior Vice President, Marketing of i3 Mobile and shall
perform, subject to the policy directions of the President and Chief Executive
Officer and the Board of Directors of i3 Mobile, such duties as are customarily
performed by the Senior Vice President, Marketing. ▇▇▇▇▇▇▇▇▇ shall also have
such other powers and duties as may be from time to time prescribed by the
President and Chief Executive Officer or the Board of Directors of i3 Mobile,
provided that the nature of ▇▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇ and duties so prescribed shall
not be inconsistent with ▇▇▇▇▇▇▇▇▇'▇ position and duties hereunder.
▇▇▇▇▇▇▇▇▇ shall devote her business time, attention and energies to the business
and affairs of i3 Mobile, shall use her best efforts to advance the best
interests of i3 Mobile and shall not, during the Term, be actively engaged in
any other business activity, whether or not such business activity is pursued
for gain, profit or other pecuniary
advantage, that will interfere with the performance by ▇▇▇▇▇▇▇▇▇ of her duties
hereunder or ▇▇▇▇▇▇▇▇▇'▇ availability to perform such duties or that will
adversely affect, or negatively reflect upon, i3 Mobile.
Subject to the provisions of i3 Mobile's Certificate of Incorporation and
Bylaws, each as amended from time to time, i3 Mobile shall indemnify ▇▇▇▇▇▇▇▇▇
to the fullest extent permitted by the General Corporation Law of the State of
Delaware, as amended from time to time, for all amounts (including, without
limitation, judgments, fines, settlement payments, expenses and attorney's fees)
actually and reasonably incurred or paid by ▇▇▇▇▇▇▇▇▇ on a when- and as-incurred
basis in connection with any action, suit, investigation or proceeding arising
out of or relating to the performance by ▇▇▇▇▇▇▇▇▇ of services for, or the
acting by ▇▇▇▇▇▇▇▇▇ as a director, officer, or employee of, i3 Mobile, or any
other person or enterprise at i3 Mobile's request if ▇▇▇▇▇▇▇▇▇ acted in good
faith and in a manner she reasonably believed to be in or not opposed to the
best interests of i3 Mobile, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe her conduct was unlawful. i3
Mobile shall use its best efforts to obtain and maintain in full force and
effect during the Term directors' and officers' liability insurance policies
providing full and adequate protection to ▇▇▇▇▇▇▇▇▇ for her capacity, provided
that the Board of Directors of i3 Mobile shall have no obligation to purchase
such insurance if, in its opinion, coverage is available only on unreasonable
terms. ▇▇▇▇▇▇▇▇▇ agrees that, if it is finally judicially determined or finally
determined by an arbitrator that she is not or was not entitled to any amounts
paid on her behalf or for which she has been reimbursed under this third
paragraph of this Section 3 by virtue of having failed to have met the standards
set forth in the first sentence of this third paragraph of this section 3,
▇▇▇▇▇▇▇▇▇ shall promptly reimburse i3 Mobile for such amounts.
4. Place of Performance
In connection with her employment by i3 Mobile, ▇▇▇▇▇▇▇▇▇ shall be based at the
principal executive offices of i3 Mobile which shall be in the New York
Metropolitan area.
5. Compensation
(a) Base Salary. i3 Mobile shall pay ▇▇▇▇▇▇▇▇▇ a base salary (the "Base Salary")
at a rate of not less than $200,000 per annum, payable in equal semi-monthly
installments during the Term. The President and Chief Executive Officer of i3
Mobile at least annually will review the Base Salary and other compensation
during the Term with a view to increase thereof based upon then prevailing
industry salary scales for equivalently valued businesses for the Senior Vice
President, Marketing position, ▇▇▇▇▇▇▇▇▇'▇ performance, the performance of i3
Mobile, inflation and other relevant factors.
(b) Out-of-Pocket Expenses. i3 Mobile shall promptly pay to ▇▇▇▇▇▇▇▇▇ the
reasonable expenses incurred by her in the performance of her duties hereunder,
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including, without limitation, those incurred in connection with business
related travel or entertainment, or, if such expenses are paid directly by
▇▇▇▇▇▇▇▇▇, shall promptly reimburse her for such payment, provided that
▇▇▇▇▇▇▇▇▇ properly accounts therefore in accordance with i3 Mobile's policy. i3
Mobile shall provide ▇▇▇▇▇▇▇▇▇ with a corporate credit card to be used with
respect to the foregoing expenses.
(c) Participation in Benefit Plans. ▇▇▇▇▇▇▇▇▇ shall be eligible to participate
in the current i3 Mobile health, accident, life and disability insurance,
pension, profit sharing, stock option, stock purchase plans or arrangements.
▇▇▇▇▇▇▇▇▇ shall also be entitled to participate in any other employee benefit
plan or arrangement made available in the future by i3 Mobile to its executives
and key management employees.
(d) Vacation. ▇▇▇▇▇▇▇▇▇ shall be entitled to paid vacation days in each calendar
year determined by i3 Mobile from time to time, in accordance with i3 Mobile's
standard vacation policy, prorated in any calendar year during which ▇▇▇▇▇▇▇▇▇
is employed hereunder for less than an entire year in accordance with the number
of days in such year during which she is so employed. ▇▇▇▇▇▇▇▇▇ shall also be
entitled to all paid holidays given by i3 Mobile to its executives and key
management employees
(e) Incentive Compensation. i3 Mobile shall pay ▇▇▇▇▇▇▇▇▇ a performance bonus
(the "Performance Bonus") which shall be determined by the President and Chief
Executive Officer of i3 Mobile, in addition to and separate from her Base Salary
and subject to the achievement of certain mutually agreed upon performance
goals, in an amount up to $100,000, prorated for partial years of service.
(f) Automobile. i3 Mobile shall provide ▇▇▇▇▇▇▇▇▇ with exclusive use of an
automobile for business purposes during the Term. i3 Mobile shall pay the cost
of the monthly lease for this automobile which amount shall not exceed $500 per
month. ▇▇▇▇▇▇▇▇▇ shall be responsible for all other automobile related expenses
including, without limitation, insurance, gasoline, scheduled maintenance and
repairs.
(g) Stock Options. i3 Mobile shall grant to ▇▇▇▇▇▇▇▇▇ stock options C'Options'9
under its 2000 Stock Incentive Plan, as amended, to acquire 155,000 shares of i3
Mobile's Common Stock at an exercise price equal to the per share closing price
of i3 Mobile's common shares as reported by the NASDAQ National Exchange on the
trading date immediately prior to ▇▇▇▇▇▇▇▇▇'▇ start date, The Options shall vest
as follows: thirty eight thousand three hundred and thirty-three (38,333) shall
vest on the twelve month anniversary of the date hereof, fifty eight thousand
three hundred and thirty-three (58,333) shall vest on the twenty-four month
anniversary of the date hereof and fifty eight thousand three hundred and
thirty-four (58,334) shall veston the thirty-six month anniversary of the date
hereof as reflected on a separate Incentive Stock Option Grant Agreement.
6. Termination
▇▇▇▇▇▇▇▇▇'▇ employment hereunder shall be terminated upon ▇▇▇▇▇▇▇▇▇'▇ death and
may be terminated as follows:
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(a) By i3 Mobile for "Cause." For purposes of this Agreement, a termination for
Cause shall occur if ▇▇▇▇▇▇▇▇▇ has (i) willfully failed to comply with any of
the material terms of this Agreement, (ii) willfully and repeatedly failed to
perform her duties hereunder, (iii) engaged in gross misconduct materially
injurious to i3 Mobile or (iv) been convicted of, or pleaded nolo contendere to,
a felony or a crime of moral turpitude; provided, however, that ▇▇▇▇▇▇▇▇▇ shall
receive thirty (30) days' advance written notice that the Board intends to meet
to consider ▇▇▇▇▇▇▇▇▇'▇ termination for Cause and specifying the actions
constituting Cause, ▇▇▇▇▇▇▇▇▇ shall not have cured the actions constituting
Cause during such thirty (30) day period and ▇▇▇▇▇▇▇▇▇ shall be given a
reasonable opportunity to be heard by the Board on the issue prior to the
Board's vote on the matter.
(b) By i3 Mobile due to ▇▇▇▇▇▇▇▇▇'▇ "Disability." For purposes of this
Agreement, a termination for Disability shall occur (i) upon the thirtieth
(30th) day after i3 Mobile has provided a written termination notice to
▇▇▇▇▇▇▇▇▇ supported by a written statement from a reputable independent
physician to the effect that ▇▇▇▇▇▇▇▇▇ shall have become so incapacitated as to
be unable to resume, within the ensuing twelve (12) months, her employment
hereunder by reason of physical or mental illness or injury, or (ii) upon
rendering of a written termination notice by i3 Mobile after ▇▇▇▇▇▇▇▇▇ has been
unable to substantially perform her duties hereunder for six (6) consecutive
months or for nine (9) months in any twelve (12) month period (exclusive of any
vacation permitted under Section 5(f) hereof) by reason of any physical or
mental illness. For purposes of this Section 6(b), ▇▇▇▇▇▇▇▇▇ agrees to make
himself available and to cooperate in any reasonable examination by a reputable
independent physician retained by i3 Mobile.
(c) By ▇▇▇▇▇▇▇▇▇ for "Good Reason upon Change in Control." For purposes of this
Agreement, "Good Reason" shall mean any of the following that occurs coincident
with or following a Change in Control, if not cured and corrected by i3 Mobile
or its successor within ten business days after written notice thereof by
▇▇▇▇▇▇▇▇▇ to i3 Mobile or its successor: (i) any change in ▇▇▇▇▇▇▇▇▇'▇ title or
position that constitutes a material diminution in authority as compared to the
authority of ▇▇▇▇▇▇▇▇▇'▇ title or position immediately prior to the occurrence
of the Change in Control; (ii) any material reduction in ▇▇▇▇▇▇▇▇▇'▇ annual base
salary as in effect on the effective date of the Change in Control; (iii) the
relocation of the principal executive offices of i3 Mobile in excess of fifty
(50) miles from their present location not consented to by ▇▇▇▇▇▇▇▇▇, or (iv) a
substantial diminution in the ▇▇▇▇▇▇▇▇▇'▇ duties and responsibilities (other
than a change due to ▇▇▇▇▇▇▇▇▇'▇ Total and Permanent Disability or as an
accommodation under the Americans With Disabilities Act); provided, however,
that no diminution of title, position, duties or responsibilities shall be
deemed to occur solely because i3 Mobile becomes a subsidiary of another
corporation or entity or because there has been a change in the reporting
hierarchy incident thereto involving ▇▇▇▇▇▇▇▇▇. "Change in Control" means: (i)
the effective date of any merger, share exchange, consolidation or other
reorganization or business combination of i3 Mobile if immediately after such
transaction either (A) persons who were directors of i3 Mobile immediately prior
to such transaction do not constitute at least a majority of the directors of
the surviving entity, or (B) persons who hold a majority of the outstanding
voting securities entitled to vote
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generally in the election of directors of the surviving entity are not persons
who held a majority of the voting capital stock of i3 Mobile immediately prior
to such transaction; (ii) the closing of a sale or conveyance of all or
substantially all of the assets of i3 Mobile; (iii) an acquisition (other than
from i3 Mobile) in a transaction or a series of related transactions by any
person, entity or "group," within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934 (the "Exchange Act"), (excluding for this
purpose, (A) i3 Mobile or its subsidiaries, (B) any employee benefit plan of i3
Mobile or its subsidiaries which acquires beneficial ownership of voting
securities of i3 Mobile, (C) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (D) any corporation owned,
directly or indirectly, by the stockholders of i3 Mobile in substantially the
same proportions as their ownership of the then outstanding voting securities of
i3 Mobile entitled to vote generally in the election of directors) of beneficial
ownership, within the meaning of Rule 13d-3 promulgated under the Exchange Act,
of 500/c or more of either the then outstanding shares of common stock or the
combined voting power of i3 Mobile's then outstanding voting securities entitled
to vote generally in the election of directors; (iv) individuals who were the
Board's nominees for election as directors immediately prior to a meeting of the
stockholders of i3 Mobile involving an actual or threatened election contest
relating to the election of the directors of i3 Mobile, as such terms are used
in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act, cease to
constitute a majority of the Board following the election; or (v) the
dissolution or liquidation of i3 Mobile.
(d) By ▇▇▇▇▇▇▇▇▇ for "Change of CEO." For purposes of this Agreement, a "Change
of CEO" shall occur only if the Board of Directors of i3 Mobile unilaterally
relieves ▇▇▇▇ ▇. Lack of his duties as CEO of i3 Mobile. ▇▇▇▇▇▇▇▇▇ shall have
ten (10) days from the effective date of the aforesaid action to exercise her
right to terminate under this Section 6(d). This provision shall not apply in
the event ▇▇▇▇ ▇. Lack either voluntary resigns his position or is terminated
for Cause. This provision shall apply to no CEO of i3 Mobile other than ▇▇▇▇ ▇.
Lack.
7. Compensation upon Termination
(a) In the event of the termination of ▇▇▇▇▇▇▇▇▇'▇ employment as a result of
▇▇▇▇▇▇▇▇▇'▇ death, i3 Mobile shall (i) pay to ▇▇▇▇▇▇▇▇▇'▇ estate her Base Salary
through the date of her death and (ii) for twelve (12) months following her
death (as if such termination had not occurred) provide continuation coverage to
the members of ▇▇▇▇▇▇▇▇▇'▇ family under all major medical and other health,
accident, life or other disability plans and programs in which such family
members participated immediately prior to her death.
(b) In the event of the termination of ▇▇▇▇▇▇▇▇▇'▇ employment by i3 Mobile for
Cause or by ▇▇▇▇▇▇▇▇▇ other than for Good Reason upon Change in Control, i3
Mobile shall pay to ▇▇▇▇▇▇▇▇▇ her Base Salary through the date of her
termination, and ▇▇▇▇▇▇▇▇▇ shall have no further entitlement to any other
compensation or benefits from i3 Mobile.
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(c) In the event of the termination of ▇▇▇▇▇▇▇▇▇'▇ employment by i3 Mobile due
to Disability, i3 Mobile shall pay to ▇▇▇▇▇▇▇▇▇ her Base Salary and through the
date of her termination. In addition, for twelve (12) months following any such
termination, i3 Mobile shall (i) continue to pay ▇▇▇▇▇▇▇▇▇ the Base Salary in
effect at the time of such termination less the amount, if any, then payable to
▇▇▇▇▇▇▇▇▇ under any disability benefits of i3 Mobile and (ii) provide ▇▇▇▇▇▇▇▇▇
continuation coverage under all major medical and other health, accident, life
or other disability plans and programs in which ▇▇▇▇▇▇▇▇▇ participated
immediately prior to such termination.
(d) In the event that ▇▇▇▇▇▇▇▇▇'▇ employment is terminated (i) by i3 Mobile
other than (A) as a result of ▇▇▇▇▇▇▇▇▇'▇ death or (B) for reasons specified in
Section 6(a) or (b) or (ii) by ▇▇▇▇▇▇▇▇▇ for Good Reason upon Change in Control
or upon Change of CEO, i3 Mobile shall continue to pay ▇▇▇▇▇▇▇▇▇ (1) if
▇▇▇▇▇▇▇▇▇'▇ employment is terminated before the six (6) month anniversary of her
start date Base Salary for six (6) months following any such termination or (2)
if ▇▇▇▇▇▇▇▇▇'▇ employment is terminated on or after the six (6) month
anniversary of her start date her Base Salary for twelve (12) months following
any such termination and, in either case, ▇▇▇▇▇▇▇▇▇ continuation coverage under
all major medical and other health, accident, life or other disability plans or
programs in which ▇▇▇▇▇▇▇▇▇ participated immediately prior to such termination
and continue all automobile lease payments specified in Section 5(f) for the
same period. Notwithstanding the foregoing, the amounts otherwise payable to
▇▇▇▇▇▇▇▇▇ pursuant to this Section 7(d) shall be subject to reduction (but not
below zero) to the extent determined necessary by i3 Mobile to prevent any
payments or benefits to or for the benefit of ▇▇▇▇▇▇▇▇▇ (whether pursuant to
this Agreement or any other plan, arrangement or agreement) from being treated
as a "parachute payment" under Section 280G of the Internal Revenue Code of
1986, as amended. In the event that ▇▇▇▇▇▇▇▇▇'▇ employment is terminated by
▇▇▇▇▇▇▇▇▇ for Good Reason upon Change in Control, all stock options and other
equity incentive awards granted to ▇▇▇▇▇▇▇▇▇ by i3 Mobile shall immediately
fully vest on an accelerated basis and be exercisable for a 30-day period
following the occurrence of the event comprising Good Reason upon Change in
Control.
(e) If ▇▇▇▇▇▇▇▇▇ disputes the termination of her employment by i3 Mobile
pursuant to Section 6(a) or 6(b) herein and such dispute results in a final
determination to the effect that i3 Mobile did not have a proper basis for such
termination, i3 Mobile shall promptly pay to ▇▇▇▇▇▇▇▇▇ all payments ▇▇▇▇▇▇▇▇▇
would have been entitled to receive had her employment hereunder had not been
improperly terminated; provided, however, that any payments or benefits under
this Section 7(e) shall be reduced by the amount of any payments or benefits
provided under any other provision of Section 7 hereof.
(f) The continuation coverage under any major medical and other health,
accident, life or other disability plans and programs for the periods provided
in Section 7(a), 7(c) and 7(d) shall be provided (i) at the expense of i3 Mobile
and (ii) in satisfaction of i3 Mobile's obligation under Section 4980B of the
Internal Revenue Code (and any similar state law) with respect to the period of
time such benefits are continued hereunder.
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(g) This Section 7 sets forth the only obligations of i3 Mobile with respect to
the termination of ▇▇▇▇▇▇▇▇▇'▇ employment with i3 Mobile, and ▇▇▇▇▇▇▇▇▇
acknowledges that, upon the termination of her employment, she shall not be
entitled to any payments or benefits which are not explicitly provided herein,
8. Covenant Regarding Inventions and Copyrights
▇▇▇▇▇▇▇▇▇ shall disclose promptly to i3 Mobile any and all inventions,
discoveries, improvements and patentable or copyrightable works initiated,
conceived or made by him, either alone or in conjunction with others, during the
Term and related to the business or activities of i3 Mobile and she assigns all
of her interest therein to i3 Mobile or its nominee; whenever requested to do so
by i3 Mobile, ▇▇▇▇▇▇▇▇▇ shall execute any and all applications, assignments or
other instruments which i3 Mobile shall deem necessary to apply for and obtain
letters patent or copyrights of the United States or any foreign country, or
otherwise protect i3 Mobile's interest therein. These obligations shall continue
beyond the conclusion of the Term with respect to inventions, discoveries,
improvements or copyrightable works initiated, conceived or made by ▇▇▇▇▇▇▇▇▇
during the Term and shall be binding upon ▇▇▇▇▇▇▇▇▇'▇ assigns, executors,
administrators and other legal representatives.
9. Protection of Confidential Information
▇▇▇▇▇▇▇▇▇ acknowledges that she has been and will be provided with information
about, and her employment by i3 Mobile will, throughout the Term, bring him into
close contact with, many confidential affairs of i3 Mobile and its subsidiaries,
including proprietary information about costs, profits, markets, sales,
products, key personnel, pricing policies, operational methods, technical
processes and other business affairs and methods, plans for future developments
and other information not readily available to the public, all of which are
highly confidential and proprietary and all of which were developed by i3 Mobile
at great effort and expense. ▇▇▇▇▇▇▇▇▇ further acknowledges that the services to
be performed by him under this Agreement are of a special, unique, unusual,
extraordinary and intellectual character, that the business of i3 Mobile will be
conducted throughout the world (the "Territory"), that its services will be
marketed throughout the Territory, that i3 Mobile competes and will compete in
all of its business activities with other organizations which are located in any
part of the Territory and that the nature of the relationship of ▇▇▇▇▇▇▇▇▇ with
i3 Mobile is such that ▇▇▇▇▇▇▇▇▇ is capable of competing with i3 Mobile from
nearly any location in the Territory. In recognition of the foregoing, ▇▇▇▇▇▇▇▇▇
covenants and agrees during the Term and for a period of five (5) years
thereafter:
(i) That she will keep secret all confidential matters of i3 Mobile and not
disclose them to anyone outside of i3 Mobile, either during or after the Term,
except with i3 Mobile's prior written consent or, if during the Term, in the
performance of her duties hereunder, ▇▇▇▇▇▇▇▇▇ makes a good faith determination
that it is the best interest of i3 Mobile and to disclose such matters;
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(ii) That she will not make use of any such confidential matters for her own
purposes or the benefit of anyone other than i3 Mobile; and
(iii) That she will deliver promptly to i3 Mobile on termination of this
Agreement, or at any time i3 Mobile may so request, all confidential memoranda,
notes, records, reports and other confidential documents (and all copies
thereof) relating to the business of i3 Mobile, which she may then possess or
have under her control.
10. Restriction on Competition, Interference and Solicitation
In recognition of the considerations described in Section 9 hereof, ▇▇▇▇▇▇▇▇▇
covenants and agrees that, during the Term and for a period of one (1) year or
such longer period of time during which ▇▇▇▇▇▇▇▇▇ is continuing to receive
compensation from i3 Mobile after such termination, ▇▇▇▇▇▇▇▇▇ will not, directly
or indirectly, (A) enter into the employ of, or render any services to, any
person, firm or corporation engaged in any business directly competitive with
the business of i3 Mobile in any part of the Territory in which i3 Mobile is
actively engaged in business on the date of termination; (8) engage in any such
business for her own account; (C) become interested in any such business as an
individual, partner, shareholder, creditor, director, officer, principal, agent,
employee, trustee, consultant, advisor, francheree or in any other relationship
or capacity; or (D) interfere with i3 Mobile's relationship with, or endeavor to
employ or entice away from i3 Mobile any person, firm, corporation, governmental
entity or other business organization who or which is or was an employee,
customer or supplier of, or maintained a business relationship with, i3 Mobile
at any time (whether before or after the Term), or which i3 Mobile has solicited
or prepared to solicit; provided, however, that the provisions of clause (A)
shall not be deemed to preclude ▇▇▇▇▇▇▇▇▇ from engagement by a corporation some
of the activities of which are competitive with the business of i3 Mobile if
▇▇▇▇▇▇▇▇▇'▇ engagement does not relate, directly or indirectly, to such
competitive business, and nothing contained in this Section 10 shall be deemed
to prohibit ▇▇▇▇▇▇▇▇▇ from acquiring or holding, solely for investment, publicly
traded securities of any corporation some of the activities of which are
competitive with the business of i3 Mobile so long as such securities do not, in
the aggregate, constitute more than five percent (50/0) of any class or series
of outstanding securities of such corporation.
11. Specific Remedies
For purposes of Sections 8, 9 and 10 of this Agreement, references to i3 Mobile
shall include all current and future majority-owned subsidiaries of i3 Mobile
and all current and future joint ventures in which i3 Mobile may from time to
time be involved. It is understood by ▇▇▇▇▇▇▇▇▇ and i3 Mobile that the covenants
contained in this Section 11 and in Sections 8, 9 and 10 hereof are essential
elements of this Agreement and that, but for the agreement of ▇▇▇▇▇▇▇▇▇ to
comply with such covenants, i3 Mobile would not have agreed to enter into this
Agreement. i3 Mobile and ▇▇▇▇▇▇▇▇▇ have independently consulted with their
respective counsel and have been advised concerning the reasonableness and
propriety of such covenants with specific regard to the nature of the business
conducted by i3 Mobile and all interests of i3 Mobile. ▇▇▇▇▇▇▇▇▇ agrees that
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the covenants of Sections 8, 9 or 10 hereof are reasonable and valid. If
▇▇▇▇▇▇▇▇▇ commits a breach of any of the provisions of Sections 8, 9 or 10
hereof, such breach shall be deemed to be grounds for termination for Cause. In
addition, ▇▇▇▇▇▇▇▇▇ acknowledges that i3 Mobile may have no adequate remedy at
law if she violates any of the terms hereof. ▇▇▇▇▇▇▇▇▇ therefore understands and
agrees that i3 Mobile shall have (i) the right to have such provisions
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach will cause irreparable injury to i3
Mobile and that money damages will not provide an adequate remedy to i3 Mobile,
and (ii) the right to require ▇▇▇▇▇▇▇▇▇ to account for and pay over to i3 Mobile
all compensation, profits, monies, accruals, increments and other benefits
(collectively "Benefits") derived or received by ▇▇▇▇▇▇▇▇▇ as a result of any
transaction constituting a breach of any of the provisions of Sections 8, 9 or
10 and ▇▇▇▇▇▇▇▇▇ hereby agrees to account for and pay over such Benefits to i3
Mobile.
12. Independence, Severability and Non-Exclusivity
Each of the rights enumerated in Sections 8, 9 or 10 hereof and the remedies
enumerated in Section 11 hereof shall be independent of the others and shall be
in addition to and not in lieu of any other rights and remedies available to i3
Mobile at law or in equity. If any of the covenants contained in Sections 8, 9
or 10, or any part of any of them, is hereafter construed or adjudicated to be
invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants or right or remedies which shall be given full effect
without regard to the invalid portions. The parties intend to and do hereby
confer jurisdiction to enforce the covenants contained in Section 8, 9 or 10 and
the remedies enumerated in Section 11 upon the federal and state courts of
Connecticut sitting in Fairfield County. If any of the covenants contained in
Sections 8, 9 or 10 is held to be invalid or unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall be the power to reduce the duration
and/or area of such provision and in its reduced from said provision shall then
be enforceable. No such holding of invalidity or unenforceability in one
jurisdiction shall bar or in any way affect i3 Mobile's right to the relief
provided in Section 11 or otherwise in the courts of any other state or
jurisdiction within the geographical scope of such covenants as to breaches of
such covenants in such other respective states or jurisdictions, such covenants
being, for this purpose, severable into diverse and independent covenants.
13. Disputes
If i3 Mobile or ▇▇▇▇▇▇▇▇▇ shall dispute any termination of ▇▇▇▇▇▇▇▇▇'▇
employment hereunder or if a dispute concerning any payment hereunder shall
exist:
(a) either party shall have the right (but not the obligation), in addition to
all other rights and remedies provided by law, to compel binding, enforceable
and non-appealable arbitration of the dispute in the City of New York under the
rules of the American Arbitration Association by giving written notice of
arbitration to the other party
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within thirty (30) days after notice of such dispute has been received by the
party to whom notice has been given; and
(b) if such dispute (whether or not submitted to arbitration pursuant to Section
13(a) hereof) results in a determination that (i) i3 Mobile did not have the
right to terminate ▇▇▇▇▇▇▇▇▇'▇ employment under the provisions of this Agreement
or (ii) the position taken by ▇▇▇▇▇▇▇▇▇ concerning payments to ▇▇▇▇▇▇▇▇▇ is
correct, i3 Mobile shall promptly pay, or if theretofore paid by ▇▇▇▇▇▇▇▇▇,
shall promptly reimburse ▇▇▇▇▇▇▇▇▇ for, all costs and expenses (including
reasonable attorneys' fees) reasonably incurred by ▇▇▇▇▇▇▇▇▇ in connection with
such dispute.
14. Successors; Binding Agreement
In the event of a future disposition by i3 Mobile (whether direct or indirect),
by sale of assets or stock, merger, consolidation or otherwise of all or
substantially all of its business and/or assets in a transaction to which
▇▇▇▇▇▇▇▇▇ consents, i3 Mobile will require any successor, by agreement in form
and substance satisfactory to ▇▇▇▇▇▇▇▇▇, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that i3 Mobile
would be required to perform if no such disposition had taken place. This
Agreement and all rights of ▇▇▇▇▇▇▇▇▇ hereunder shall inure to the benefit of,
and be enforceable by, ▇▇▇▇▇▇▇▇▇'▇ personal or legal representatives, executors,
administrators, administrators cta, successors, heirs, distributees, devisees
and legatees. If ▇▇▇▇▇▇▇▇▇ should die while any amount would still be payable to
him hereunder if she had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
▇▇▇▇▇▇▇▇▇'▇ estate.
15. Notices
All notices, consents and other communications required or permitted to be given
by any party hereunder shall be in writing (including telecopy or other similar
writing) and shall be given be personal delivery, certified or registered mail,
postage prepaid, or telecopy (or other similar writing) as follows:
To i3 Mobile: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President and Chief Executive Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
To ▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or at such other address or telecopy number (or other similar number) as either
party may from time to time specify to the other. Any notice, consent or other
communication required or permitted to be given hereunder shall have been deemed
to be given on the date of mailing, personal delivery or telecopy or other
similar means (provided the appropriate answer back is received) thereof and
shall be conclusively presumed to
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have been received on the second business day following the date of mailing or,
in the case of personal delivery or telecopy or other similar means, the day of
delivery thereof, except that a change of address shall not be effective until
actually received.
16. Modifications and Waivers
No term, provision or condition of this Agreement may be modified or discharged
unless such modification or discharge is authorized by the President and Chief
Executive Officer or Board of Directors of i3 Mobile and is agreed to in writing
and signed by ▇▇▇▇▇▇▇▇▇. No waiver by either party hereto of any breach by the
other party hereto of any term, provision or condition of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
17. Entire Agreement
This Agreement constitutes the entire understanding between the parties hereto
relating to the subject matter hereof, superseding all negotiations, prior
discussions, preliminary agreements and agreements relating to the subject
matter hereof made prior to the date hereof.
18. Law Governing
Except as otherwise explicitly noted, this Agreement shall be governed by and
construed in accordance with the laws of the State of Connecticut (without
giving effect to the principles of conflicts of law).
19. Invalidity
Except as otherwise specified herein, the invalidity or unenforceability of any
term or terms of this Agreement shall not invalidate, make unenforceable or
otherwise affect any other term of this Agreement which shall remain in full
force and effect,
20. Headings
The headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year set forth above.
i3 MOBILE, INC.
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By: /s/ ▇▇▇▇ ▇. Lack
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▇▇▇▇ ▇. Lack
President and Chief Executive Officer
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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