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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
AGREEMENT, effective as of the 21st day of February, 2001 by and between i3
MOBILE, INC., a Delaware corporation with principal executive offices at 181
Harbor Drive, Stamford, Connecticut 06902 ("i3 Mobile"), and JOHN MCMENAMIN,
residing at 9 Colonial Court, New Canaan, CT 06840 ("McMenamin").
W I T N E S S E T H :
WHEREAS, i3 Mobile is desirous of employing McMenamin as Executive Vice
President, Sales of i3 Mobile and McMenamin 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 McMenamin, and McMenamin agrees to be employed by i3
Mobile, upon the terms and subject to the conditions of this Agreement.
2. TERM
The employment of McMenamin 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. McMenamin 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
McMenamin shall serve as Executive Vice President, Sales 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 Executive Vice President, Sales. McMenamin 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 McMenamin's powers and duties so prescribed shall not be
inconsistent with McMenamin's position and duties hereunder.
McMenamin shall devote his business time, attention and energies to the business
and affairs of i3 Mobile, shall use his 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 McMenamin of his duties hereunder or McMenamin's 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 McMenamin
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,
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without limitation, judgments, fines, settlement payments, expenses and
attorney's fees) actually and reasonably incurred or paid by McMenamin 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 McMenamin of
services for, or the acting by McMenamin as a director, officer, or employee of,
i3 Mobile, or any other person or enterprise at i3 Mobile's request if McMenamin
acted in good faith and in a manner he 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 his 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 McMenamin for his 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. McMenamin agrees that, if it is finally judicially
determined or finally determined by an arbitrator that he is not or was not
entitled to any amounts paid on his behalf or for which he 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, McMenamin shall promptly reimburse i3 Mobile for such amounts.
4. PLACE OF PERFORMANCE
In connection with his employment by i3 Mobile, McMenamin 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 McMenamin a base salary (the "Base
Salary") at a rate of not less than $250,000 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
Executive Vice President, Sales position, McMenamin's performance, the
performance of i3 Mobile, inflation and other relevant factors.
(b) Out-of-Pocket Expenses. i3 Mobile shall promptly pay to McMenamin the
reasonable expenses incurred by him in the performance of his duties hereunder,
including, without limitation, those incurred in connection with business
related travel or entertainment, or, if such expenses are paid directly by
McMenamin, shall promptly reimburse him for such payment, provided that
McMenamin properly accounts therefor in accordance with i3 Mobile's policy. i3
Mobile shall provide McMenamin with a corporate credit card to be used with
respect to the foregoing expenses.
(c) Participation in Benefit Plans. McMenamin 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. McMenamin 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. McMenamin 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
McMenamin is employed hereunder for less than an entire year in accordance with
the number of days in such year during which he is so employed. McMenamin shall
also be entitled to all paid holidays given by i3 Mobile to its executives and
key management employees.
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(e) Incentive Compensation. i3 Mobile shall pay McMenamin a signing bonus
(the "Signing Bonus") of $25,000 within one (1) week of the signing of this
Agreement. i3 Mobile shall also pay McMenamin 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 his Base Salary
and subject to the achievement of certain mutually agreed upon performance
goals, in an amount up to $150,000. McMenamin shall be entitled to the
Performance Bonus on a pro-rata basis for partial achievement of the performance
goals.
(f) Automobile. i3 Mobile shall provide McMenamin 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 $650 per
month. McMenamin 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 McMenamin stock options
("Options") under its 2000 Stock Incentive Plan, as amended, to acquire 250,000
shares of i3 Mobile's Common Stock at an exercise price equal to $2.00 per
share, the closing price of i3 Mobile's common shares on February 20, 2001. The
Options shall vest one-third on the twelve month anniversary of the date hereof,
one-third on the twenty-four month anniversary of the date hereof and one-third
on the thirty-six month anniversary of the date hereof as reflected on a
separate Incentive Stock Option Grant Agreement.
6. TERMINATION
McMenamin's employment hereunder shall be terminated upon McMenamin's death and
may be terminated as follows:
(a) By i3 Mobile for "Cause." For purposes of this Agreement, a termination
for Cause shall occur if McMenamin has (i) willfully failed to comply with any
of the material terms of this Agreement, (ii) willfully and repeatedly failed to
perform his 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 McMenamin shall
receive thirty (30) days' advance written notice specifying the actions
constituting Cause and McMenamin shall not have cured the actions constituting
Cause during such thirty (30) day period.
(b) By i3 Mobile due to McMenamin's "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
McMenamin supported by a written statement from a reputable independent
physician to the effect that McMenamin shall have become so incapacitated as to
be unable to resume, within the ensuing twelve (12) months, his employment
hereunder by reason of physical or mental illness or injury, or (ii) upon
rendering of a written termination notice by i3 Mobile after McMenamin has been
unable to substantially perform his 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), McMenamin agrees to make
himself available and to cooperate in any reasonable examination by a reputable
independent physician retained by i3 Mobile.
(c) By McMenamin 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 McMenamin to i3 Mobile or its successor: (i) any change in McMenamin's title
or position that constitutes a material diminution in authority as compared to
the authority of
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McMenamin's title or position immediately prior to the occurrence of the Change
in Control; (ii) any material reduction in McMenamin's 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 McMenamin, or (iv) a substantial
diminution in the McMenamin's duties and responsibilities (other than a change
due to McMenamin's 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 McMenamin. "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 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 50% 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 McMenamin 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 John A. Lack of his duties as CEO of i3 Mobile. McMenamin
shall have ten (10) days from the effective date of the aforesaid action to
exercise his right to terminate under this Section 6(d). This provision shall
not apply in the event John A. Lack either voluntary resigns his position or is
terminated for Cause. This provision shall apply to no CEO other than John A.
Lack.
7. COMPENSATION UPON TERMINATION
(a) In the event of the termination of McMenamin's employment as a result of
McMenamin's death, i3 Mobile shall (i) pay to McMenamin's estate his Base Salary
and Performance Bonus through the date of his death and (ii) for twelve (12)
months following his death (as if such termination had not occurred) provide
continuation coverage to the members of McMenamin's 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 his death.
(b) In the event of the termination of McMenamin's employment by i3 Mobile
for Cause or by McMenamin other than for Good Reason upon Change in Control, i3
Mobile shall pay to McMenamin his
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Base Salary and accrued Performance Bonus through the date of his termination,
and McMenamin shall have no further entitlement to any other compensation or
benefits from i3 Mobile.
(c) In the event of the termination of McMenamin's employment by i3 Mobile
due to Disability, i3 Mobile shall pay to McMenamin his Base Salary and accrued
Performance Bonus through the date of his termination. In addition, for twelve
(12) months following any such termination, i3 Mobile shall (i) continue to pay
McMenamin the Base Salary in effect at the time of such termination less the
amount, if any, then payable to McMenamin under any disability benefits of i3
Mobile and (ii) provide McMenamin continuation coverage under all major medical
and other health, accident, life or other disability plans and programs in which
McMenamin participated immediately prior to such termination.
(d) In the event that McMenamin's employment is terminated (i) by i3 Mobile
other than (A) as a result of McMenamin's death or (B) for reasons specified in
Section 6(a) or (b) or (ii) by McMenamin for Good Reason upon Change in Control
or upon Change of CEO, i3 Mobile shall continue to pay to McMenamin (1) if
McMenamin's employment is terminated before January 1, 2002 his Base Salary for
twelve (12) months following any such termination or (2) if McMenamin's
employment is terminated on or after January 1, 2002 his Base Salary and
Performance Bonus for twelve (12) months following any such termination and, in
either case, provide McMenamin continuation coverage under all major medical and
other health, accident, life or other disability plans or programs in which
McMenamin 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 McMenamin
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 McMenamin (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 McMenamin's employment is terminated by McMenamin for Good Reason
upon Change in Control or Change of CEO, all stock options and other equity
incentive awards granted to McMenamin 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 or Change
of CEO.
(e) If McMenamin disputes the termination of his 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 McMenamin all payments McMenamin
would have been entitled to receive had his 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.
(g) This Section 7 sets forth the only obligations of i3 Mobile with respect
to the termination of McMenamin's employment with i3 Mobile, and McMenamin
acknowledges that, upon the termination of his employment, he shall not be
entitled to any payments or benefits which are not explicitly provided herein.
8. COVENANT REGARDING INVENTIONS AND COPYRIGHTS
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McMenamin 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 he assigns all
of his interest therein to i3 Mobile or its nominee; whenever requested to do so
by i3 Mobile, McMenamin 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 McMenamin
during the Term and shall be binding upon McMenamin's assigns, executors,
administrators and other legal representatives.
9. PROTECTION OF CONFIDENTIAL INFORMATION
McMenamin acknowledges that he has been and will be provided with information
about, and his 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. McMenamin 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 McMenamin with
i3 Mobile is such that McMenamin is capable of competing with i3 Mobile from
nearly any location in the Territory. In recognition of the foregoing, McMenamin
covenants and agrees during the Term and for a period of five (5) years
thereafter:
(i) That he 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 his duties hereunder, McMenamin makes a good faith
determination that it is the best interest of i3 Mobile and to disclose such
matters;
(ii) That he will not make use of any such confidential matters for
his own purposes or the benefit of anyone other than i3 Mobile; and
(iii) That he 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 he may then possess
or have under his control.
10. RESTRICTION ON COMPETITION, INTERFERENCE AND SOLICITATION
In recognition of the considerations described in Section 9 hereof, McMenamin
covenants and agrees that, during the Term and for a period of one (1) year or
such longer period of time during which McMenamin is continuing to receive
compensation from i3 Mobile after such termination, McMenamin 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; (B)
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engage in any such business for his own account; (C) become interested in any
such business as an individual, partner, shareholder, creditor, director,
officer, principal, agent, employee, trustee, consultant, advisor, franchisee 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
McMenamin from engagement by a corporation some of the activities of which are
competitive with the business of i3 Mobile if McMenamin's engagement does not
relate, directly or indirectly, to such competitive business, and nothing
contained in this Section 10 shall be deemed to prohibit McMenamin 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 (5%) 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 McMenamin 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 McMenamin to
comply with such covenants, i3 Mobile would not have agreed to enter into this
Agreement. i3 Mobile and McMenamin 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. McMenamin agrees that the
covenants of Sections 8, 9 or 10 hereof are reasonable and valid. If McMenamin
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,
McMenamin acknowledges that i3 Mobile may have no adequate remedy at law if he
violates any of the terms hereof. McMenamin 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 McMenamin to account for and pay over to i3 Mobile all
compensation, profits, monies, accruals, increments and other benefits
(collectively "Benefits") derived or received by McMenamin as a result of any
transaction constituting a breach of any of the provisions of Sections 8, 9 or
10 and McMenamin 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
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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 McMenamin shall dispute any termination of McMenamin's
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 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 McMenamin's employment under the provisions of this
Agreement or (ii) the position taken by McMenamin concerning payments to
McMenamin is correct, i3 Mobile shall promptly pay, or if theretofore paid by
McMenamin, shall promptly reimburse McMenamin for, all costs and expenses
(including reasonable attorneys' fees) reasonably incurred by McMenamin 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
McMenamin consents, i3 Mobile will require any successor, by agreement in form
and substance satisfactory to McMenamin, 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 McMenamin hereunder shall inure to the benefit of,
and be enforceable by, McMenamin's personal or legal representatives, executors,
administrators, administrators cta, successors, heirs, distributees, devisees
and legatees. If McMenamin should die while any amount would still be payable to
him hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
McMenamin's 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: 181 Harbor Drive
Stamford, CT 06902
Attn: President and Chief Executive Officer
Telecopy: (203) 428-3204
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To McMenamin: 9 Colonial Court
New Canaan, CT 06840
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 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 McMenamin. 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/ John A. Lack
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John A. Lack
President and Chief Executive Officer
/s/ John McMenamin
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John McMenamin