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EXHIBIT 10.1(b)
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of the 1st day of January, 2001 by and between i3
MOBILE, INC., a Delaware corporation with principal executive offices at 181
Harbor Drive, Stamford, Connecticut 06902 ("i3 Mobile"), and STEPHEN G. MALONEY,
residing at 1766 Shippan Avenue, Stamford, Connecticut 06902 ("Maloney").
W I T N E S S E T H :
i3 Mobile is desirous of employing Maloney as Chairman of the Board of
Directors and Chief Strategist of i3 Mobile and Maloney is desirous of serving
i3 Mobile in such capacities, 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 Maloney, and Maloney agrees to be employed by
i3 Mobile, upon the terms and subject to the conditions of this Agreement.
2. TERM.
The employment of Maloney by i3 Mobile as provided in Section 1 will
commence on January 1, 2001 (the "Commencement Date") and terminate on December
31, 2003, 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.
3. DUTIES; BEST EFFORTS; INDEMNIFICATION.
Maloney shall serve as Chairman of the Board of Directors and Chief
Strategist of i3 Mobile, shall preside at all meetings of the stockholders and
the Board of Directors of i3 Mobile and shall be responsible for establishing
the overall strategic direction of i3 Mobile, subject to the general policy
directions of the Board of Directors of i3 Mobile. Maloney shall also have such
other powers and duties as may be from time to time assigned to him by the Board
of Directors, provided that the nature of Maloney's powers and duties so
assigned shall not be inconsistent with Maloney's positions and duties
hereunder.
Maloney shall devote his full 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 Maloney of his duties hereunder or Maloney'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 Maloney
to the fullest extent permitted by the
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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 Maloney in connection with any action, suit, investigation or proceeding
arising out of relating to the performance by Maloney of services for, or the
acting by Maloney as a director, officer or employee of, i3 Mobile, or any other
person or enterprise at i3 Mobile's request if Maloney 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 maintain in full force and effect during the Term directors' and
officers' liability insurance policies providing full and adequate protection to
Maloney for his capacities, provided that the Board of Directors of i3 Mobile
shall have no obligation to maintain such insurance if, in its opinion, coverage
is available only on unreasonable terms.
4. PLACE OF PERFORMANCE.
In connection with his employment by i3 Mobile, Maloney shall be based
at the principal executive offices of i3 Mobile, which shall be in the Stamford,
Connecticut area. If i3 Mobile's principal executive offices are relocated more
than fifty (50) miles from their present location without the consent of
Maloney, Maloney shall have the right prior to such relocation to terminate his
employment hereunder pursuant to Section 6(c) hereof; provided, however, that if
Maloney does not exercise such right and instead remains in the employ of i3
Mobile following such relocation, i3 Mobile will promptly pay (or reimburse
Maloney for) all reasonable moving and moving-related expenses incurred by
Maloney as a consequence of a change of his principal residence in connection
with any such relocation of i3 Mobile's principal executive offices.
5. COMPENSATION.
(a) Base Salary. i3 Mobile shall pay Maloney a base salary (the
"Base Salary") at a rate of $300,000 per annum, payable in equal semimonthly
installments during the Term. The Board of Directors 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 chief executive officer position,
Maloney's performance, the performance of i3 Mobile, inflation and other
relevant factors.
(b) Out-of-Pocket Expenses. i3 Mobile shall promptly pay to Maloney
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 Maloney, shall promptly reimburse him for such payment, provided that Maloney
properly accounts therefor in accordance with i3 Mobile's policy.
(c) Participation in Benefit Plans. Maloney shall be entitled to
participate in i3 Mobile's executive benefits plan that may include, but not be
limited to, a pension plan, profit sharing plan, stock option plan, stock
purchase plan or arrangement, group life insurance plan and health and accident
plan. Maloney shall also be entitled to participate in any other employee
benefit plan or arrangement now available or made available in the future by i3
Mobile to its executives and key management employees.
(d) Key-Man Life Insurance. i3 Mobile shall maintain a key-man life
insurance policy on the life of Maloney in the aggregate amount of at least
$2,000,000, the proceeds of which shall be payable directly to i3 Mobile.
Maloney agrees to submit to such medical examinations, to complete
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such documentation and otherwise to cooperate with i3 Mobile as may be required
to enable i3 Mobile to obtain and maintain such key-man life insurance.
(e) Vacation. Maloney shall be entitled to paid vacation days in
each calendar year determined by i3 Mobile from time to time, but not less than
four (4) weeks in any calendar year, prorated in any calendar year during which
Maloney 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. Maloney shall
also be entitled to all paid holidays given by i3 Mobile to its executives and
key management employees.
(f) Dues and Subscriptions. i3 Mobile shall pay, or reimburse
Maloney for, the cost of dues and subscriptions associated with business
purposes in an amount not to exceed $5,000 annually.
(g) Automobile. i3 Mobile shall provide Maloney with exclusive use
of an automobile for business purposes during the Term and shall pay all costs
in connection therewith, including, without limitation, insurance, gas and
repairs. Such automobile shall be replaced periodically during the Term, and
Maloney shall have the right, at the end of the Term or at any earlier
termination thereof, to purchase the automobile he is then using at its then
depreciated book value.
(h) Stock Options. i3 Mobile shall grant to Maloney stock options
(the "Options") under its 2000 Stock Incentive Plan to acquire an aggregate of
150,000 shares of i3 Mobile's Common Stock at an exercise price per share, (i)
equal to the closing market price of the Common Stock on the Commencement Date
(the "Market Price") for the first 50,000 shares, (ii) equal to the Market Price
plus $2.00 for the next 50,000 shares and (iii) equal to the Market Price plus
$4.00 for the last 50,000 shares. The Options shall vest on the basis of 25,000
shares on the six-month anniversary of the Commencement Date, 25,000 shares on
the twelve-month anniversary of the Commencement Date, 50,000 shares on the
twenty-four month anniversary of the Commencement Date and 50,000 shares on the
thirty-six month anniversary of the Commencement Date. The vesting schedule for
the Options shall be accelerated in the event of either of the events referred
to in Section 6(c)(iv) or (v) hereof unless Maloney's employment continues
without change after the occurrence of either of such events.
6. Termination.
Maloney's employment hereunder shall be terminated upon Maloney's death
and may be terminated as follows:
(a) By i3 Mobile for "Cause." A termination for Cause is a
termination evidenced by a resolution adopted by a vote of a majority of the
members of the Board finding that Maloney 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
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 Maloney shall
receive thirty (30) days' advance written notice that the Board intends to meet
to consider Maloney's termination for Cause and specifying the actions
constituting Cause, Maloney shall not have cured the actions constituting Cause
during such thirty (30) day period and Maloney 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 Maloney's "Disability." For purposes of this
Agreement, a termination for Disability shall occur (i) upon the thirtieth
(30th) day after the Board has provided a written termination notice to Maloney
supported by a written statement from a reputable independent physician to the
effect that Maloney shall have become so incapacitated as to be unable to
resume,
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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 the Board after Maloney 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(e) hereof) by reason of any physical or mental illness. For
purposes of this Section 6(b), Maloney agrees to make himself available and to
cooperate in any reasonable examination by a reputable independent physician
retained by i3 Mobile.
(c) By Maloney for "Good Reason." For purposes of this Agreement,
Good Reason shall mean (i) any circumstance that has the effect of significantly
reducing Maloney's duties or authority provided for or contemplated herein (a
"Material Change"), (ii) a breach by i3 Mobile of its material obligations under
this Agreement (a "Material Breach"), (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 Maloney, (iv) the acquisition by any person (as
such term is defined in Section 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended), directly or indirectly, of securities of i3 Mobile
representing fifty percent (50%) or more of the combined voting power of i3
Mobile's then outstanding securities in a transaction to which Maloney does not
consent, (v) the 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
Maloney does not consent or (vi) the determination by Maloney in his sole
discretion that he is not satisfied with the nature of his roles and
responsibilities with i3 Mobile; provided, however, that a Material Change or a
Material Breach shall constitute Good Reason only if Maloney has notified the
Board in writing of the existence and particulars of such Material Change or
Material Breach and the Board has failed to remedy such Material Change or
Material Breach within thirty (30) days of such notice.
7. COMPENSATION UPON TERMINATION.
(a) In the event of the termination of Maloney's employment as a
result of Maloney's death, i3 Mobile shall (i) pay to Maloney's estate his Base
Salary through the date of his death and (ii) for the longer of (x) eighteen
(18) months following his death or (y) the balance of the Term (as if such
termination had not occurred) provide continuation coverage to Maloney and the
members of Maloney's family under all major medical and other health, accident,
life or other disability plans and programs in which Maloney and such family
members participated immediately prior to his death.
(b) In the event of the termination of Maloney's employment by i3
Mobile for Cause or by Maloney other than for Good Reason, i3 Mobile shall pay
to Maloney his Base Salary through the date of his termination, and Maloney
shall have no further entitlement to any other compensation or benefits from i3
Mobile.
(c) In the event of the termination of Maloney's employment by i3
Mobile due to Maloney's Disability, i3 Mobile shall pay to Maloney his Base
Salary through the date of his termination. In addition, for eighteen (18)
months following any such termination, i3 Mobile shall (i) continue to pay
Maloney the Base Salary in effect at the time of such termination less the
amount, if any, then payable to Maloney under any disability benefits of i3
Mobile and (ii) provide Maloney continuation coverage under all major medical
and other health, accident, life or other disability plans and programs in which
Maloney participated immediately prior to such termination.
(d) In the event that Maloney's employment is terminated by i3
Mobile other than (i) as a result of Maloney's death or (ii) for reasons
specified in Section 6(a) or (b) or by Maloney for Good Reason, i3 Mobile shall
continue to pay to Maloney his Base Salary for the lesser of (x) two (2) years
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following any such termination or (y) the balance of the Term (as if such
termination had not occurred) and provide Maloney continuation coverage under
all major medical and other health, accident, life or other disability plans or
programs in which Maloney participated immediately prior to such termination for
the same period. Notwithstanding the foregoing, the amounts otherwise payable to
Maloney pursuant to this Section 7(d) shall be subject to reduction (but not
below zero) to the extent determined reasonably necessary by i3 Mobile to
prevent any payments or benefits to or for the benefit of Maloney (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.
(e) 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.
(f) If Maloney 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 Maloney all payments Maloney
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(f) shall be reduced by the amount of any payments or benefits
provided under any other provision of Section 7 hereof.
(g) This Section 7 sets forth the only obligations of i3 Mobile with
respect to the termination of Maloney's employment with i3 Mobile, and Maloney
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.
Maloney 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, Maloney 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 Maloney
during the Term and shall be binding upon Maloney's assigns, executors,
administrators and other legal representatives.
9. PROTECTION OF CONFIDENTIAL INFORMATION.
Maloney 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. Maloney further acknowledges that the
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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 Maloney with i3 Mobile is such that Maloney is capable of competing with i3
Mobile from nearly any location in the Territory. In recognition of the
foregoing, Maloney 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, Maloney 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.
The foregoing shall not apply to information or confidential matters of i3
Mobile to the extent, but only to the extent, that such information: (i) is
already known to Maloney free of any restriction at the time it is obtained from
i3 Mobile; (ii) is subsequently learned by Maloney from an independent third
party free of any restriction and without breach of this Agreement or any
agreement with such third party; (iii) becomes publicly available through no
wrongful act of Maloney; or (iv) is independently developed by Maloney without
reference to any confidential matters of i3 Mobile.
10. RESTRICTION ON COMPETITION, INTERFERENCE AND SOLICITATION.
In recognition of the considerations described in Section 9 hereof,
Maloney covenants and agrees that, during the Term and for a period of one (1)
year or such longer period of time during which Maloney is continuing to receive
compensation from i3 Mobile after such termination, Maloney 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) 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 during 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 Maloney from engagement by a
corporation some of the activities of which are competitive with the business of
i3 Mobile if Maloney's engagement does not relate directly to such competitive
business, and nothing contained in this Section 10 shall be deemed to prohibit
Maloney 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.
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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 shall have a
significant ownership or operational interest. It is understood by Maloney 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 Maloney to comply with such covenants, i3 Mobile would not have
agreed to enter into this Agreement. i3 Mobile and Maloney 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.
Maloney agrees that the covenants of Sections 8, 9 or 10 hereof are reasonable
and valid. If Maloney 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, Maloney acknowledges that i3 Mobile may have no adequate
remedy at law if he violates any of the terms hereof. Maloney 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 Maloney to account for and pay over to i3
Mobile all compensation, profits, monies, accruals, increments and other
benefits (collectively "Benefits") derived or received by Maloney as a result of
any transaction constituting a breach of any of the provisions of Sections 8, 9
or 10 and Maloney 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 Sections 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 on 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 Maloney shall dispute any termination of Maloney'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
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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 Maloney's employment under the provisions of
this Agreement or (ii) the position taken by Maloney concerning payments to
Maloney is correct, i3 Mobile shall promptly pay, or if theretofore paid by
Maloney, shall promptly reimburse Maloney for, all costs and expenses (including
reasonable attorneys' fees) reasonably incurred by Maloney 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, i3 Mobile will require
any successor 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 Maloney hereunder shall inure to the
benefit of, and be enforceable by, Maloney's personal or legal representatives,
executors, administrators, administrators cta, successors, heirs, distributees,
devisees and legatees. If Maloney 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 Maloney'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
Suite 500
Stamford, CT 06902
Attn: Chief Executive Officer
Telecopy: (203) 326-7672
With a copy to: Piper Marbury Rudnick & Wolfe LLP
1251 Avenue of the Americas
New York, New York 10020
Attn: Michael Hirschberg, Esq.
Telecopy: (212) 835-6001
To Maloney: 1766 Shippan Avenue
Stamford, Connecticut 06902
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
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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 Board of
Directors of i3 Mobile and is agreed to in writing and signed by Maloney. 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.
By: /s/ John A. Lack
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John A. Lack
President and Chief Executive Officer
/s/ Stephen G. Maloney
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Stephen G. Maloney