EXHIBIT 10.6
EMPLOYMENT AGREEMENT
AGREEMENT, effective as of the 16th day of April, 2001 by and between i3 MOBILE,
INC., a Delaware corporation with principal executive offices at 181 Harbor
Drive, Stamford, Connecticut 06902 ("i3 Mobile"), and BRYAN MCCANN, residing at
12313 Russell Street, Overland Park, KS 66209 ("McCann").
W I T N E S S E T H :
WHEREAS, i3 Mobile is desirous of employing McCann as Senior Vice President,
Products and Services of i3 Mobile and McCann 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 McCann, and McCann agrees to be employed by i3
Mobile, upon the terms and subject to the conditions of this Agreement.
2. TERM
The employment of McCann 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. McCann 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
McCann shall serve as Senior Vice President, Products and Services 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, Products and Services.
McCann 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 McCann's powers and duties
so prescribed shall not be inconsistent with McCann's position and duties
hereunder.
McCann 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 McCann of his
duties hereunder or McCann'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 McCann 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 McCann 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 McCann of services for, or the acting
by McCann as a director, officer, or employee of, i3 Mobile, or any other person
or enterprise at i3 Mobile's request if McCann 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 McCann 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. McCann 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, McCann shall promptly
reimburse i3 Mobile for such amounts.
4. PLACE OF PERFORMANCE
In connection with his employment by i3 Mobile, McCann 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 McCann 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, Products and Services position, McCann's performance, the performance
of i3 Mobile, inflation and other relevant factors.
(b) Out-of-Pocket Expenses. i3 Mobile shall promptly pay to McCann 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
McCann, shall promptly reimburse him for such payment, provided that McCann
properly accounts therefor in accordance with i3
Mobile's policy. i3 Mobile shall provide McCann with a corporate credit card to
be used with respect to the foregoing expenses.
(c) Participation in Benefit Plans. McCann 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. McCann 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. McCann 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 McCann 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. McCann 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 McCann a signing bonus (the
"Signing Bonus") of $50,000 within fifteen (15) days of the signing of this
Agreement. The terms of the Signing Bonus shall be subject to i3 Mobile's
policies then in effect. i3 Mobile shall also pay McCann 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 $100,000. McCann 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 McCann 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. McCann 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 McCann stock options ("Options")
under its 2000 Stock Incentive Plan, as amended, to acquire 200,000 shares of i3
Mobile's Common Stock at an exercise price equal to $1.05 per share, the closing
price of i3 Mobile's common shares on April 13, 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.
(h) Relocation Expenses. i3 Mobile shall either directly pay to third party
vendors or reimburse McCann up to $50,000 for all pre-approved expenses
reasonably incurred by McCann in connection with the relocation of his family to
the New York metropolitan area as further detailed in McCann's document dated
March 15, 2001.
6. TERMINATION
McCann's employment hereunder shall be terminated upon McCann'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 McCann 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 McCann shall
receive thirty (30) days' advance written notice specifying the actions
constituting Cause and McCann shall not have cured the actions constituting
Cause during such thirty (30) day period.
(b) By i3 Mobile due to McCann'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 McCann supported by a
written statement from a reputable independent physician to the effect that
McCann 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 McCann 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), McCann agrees to make himself available and to cooperate in any
reasonable examination by a reputable independent physician retained by i3
Mobile.
(c) By McCann 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 McCann
to i3 Mobile or its successor: (i) any change in McCann's title or position that
constitutes a material diminution in authority as compared to the authority of
McCann's title or position immediately prior to the occurrence of the Change in
Control; (ii) any material reduction in McCann'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 McCann, or (iv) a substantial
diminution in the McCann's duties and responsibilities (other than a change due
to McCann'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 McCann. "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.
7. COMPENSATION UPON TERMINATION
(a) In the event of the termination of McCann's employment as a result of
McCann's death, i3 Mobile shall (i) pay to McCann'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 McCann'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 McCann's employment by i3 Mobile for
Cause or by McCann other than for Good Reason upon Change in Control, i3 Mobile
shall pay to McCann his Base Salary and accrued Performance Bonus through the
date of his termination, and McCann shall have no further entitlement to any
other compensation or benefits from i3 Mobile.
(c) In the event of the termination of McCann's employment by i3 Mobile due to
Disability, i3 Mobile shall pay to McCann 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
McCann the Base Salary in effect at the time of such termination less the
amount, if any, then payable to McCann under any disability benefits of i3
Mobile and (ii) provide McCann continuation coverage under all major medical and
other health, accident, life or other disability plans and programs in which
McCann participated immediately prior to such termination.
(d) In the event that McCann's employment is terminated (i) by i3 Mobile other
than (A) as a result of McCann's death or (B) for reasons specified in Section
6(a) or (b) or (ii) by McCann for Good Reason upon Change in Control, i3 Mobile
shall continue to pay
to McCann his Base Salary for twelve (12) months following any such termination
and provide McCann continuation coverage under all major medical and other
health, accident, life or other disability plans or programs in which McCann
participated immediately prior to such termination. Notwithstanding the
foregoing, the amounts otherwise payable to McCann 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 McCann (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 McCann's employment
is terminated by McCann for Good Reason upon Change in Control, all stock
options and other equity incentive awards granted to McCann 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 McCann 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 McCann all payments McCann 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 McCann's employment with i3 Mobile, and McCann 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
McCann 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,
McCann 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 McCann during the Term and
shall be binding upon McCann's assigns, executors, administrators and other
legal representatives.
9. PROTECTION OF CONFIDENTIAL INFORMATION
McCann 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. McCann 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 McCann with i3
Mobile is such that McCann is capable of competing with i3 Mobile from nearly
any location in the Territory. In recognition of the foregoing and in further
consideration of the salary continuation payments outlined in section 7, McCann
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, McCann 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, McCann
covenants and agrees that, during the Term and for a period of one (1) year or
such longer period of time during which McCann is continuing to receive
compensation from i3 Mobile after such termination, McCann 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 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 McCann from engagement by a corporation some of the
activities of which are competitive with the business of i3 Mobile if McCann's
engagement does not relate, directly or indirectly, to such competitive
business, and nothing contained in this Section 10 shall be deemed to prohibit
McCann 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 McCann 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 McCann to comply
with such covenants, i3 Mobile would not have agreed to enter into this
Agreement. i3 Mobile and McCann 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. McCann agrees that the
covenants of Sections 8, 9 or 10 hereof are reasonable and valid. If McCann
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,
McCann acknowledges that i3 Mobile may have no adequate remedy at law if he
violates any of the terms hereof. McCann 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 McCann to account for and pay over to i3 Mobile all compensation,
profits, monies, accruals, increments and other benefits (collectively
"Benefits") derived or received by McCann as a result of any transaction
constituting a breach of any of the provisions of Sections 8, 9 or 10 and McCann
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 McCann shall dispute any termination of McCann'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 McCann's employment under the provisions of this Agreement or
(ii) the position taken by McCann concerning payments to McCann is correct, i3
Mobile shall promptly pay, or if theretofore paid by McCann, shall promptly
reimburse McCann for, all costs and expenses (including reasonable attorneys'
fees) reasonably incurred by McCann 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 McCann
consents, i3 Mobile will require any successor, by agreement in form and
substance satisfactory to McCann, 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 McCann hereunder shall inure to the benefit of, and be enforceable
by, McCann's personal or legal representatives, executors, administrators,
administrators cta, successors, heirs, distributees, devisees and legatees. If
McCann 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 McCann'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
To McCann: 12313 Russell Street
Overland Park, KS 66209
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 McCann. 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
------------------------------
John A. Lack
President and Chief Executive Officer
/s/ Bryan McCann
------------------------------
Bryan McCann