EXHIBIT 10.15
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into this 25th
day of June, 1998, by and between IVI Checkmate Corp., a Delaware corporation
(hereinafter, the "Company"), and J. Xxxxxxxx Xxxxxx (hereinafter, "Xxxxxx").
BACKGROUND
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Xxxxxx is the Chairman of the Board and Chief Executive Officer of
Checkmate Electronics, Inc., a Georgia corporation ("Checkmate Electronics,
Inc."). Checkmate Electronics, Inc. was acquired by the Company on the date
hereof pursuant to a Combination Agreement, dated as of January 16, 1998, by and
among the Company, Checkmate Electronics, Inc., International Verifact Inc., a
Canadian corporation, and a merger subsidiary of the Company (the "Combination
Transaction").
The Company desires to engage Xxxxxx in the capacity set forth herein,
in accordance with the terms and conditions of this Agreement. Xxxxxx is
willing to serve as such in accordance with the terms and conditions of this
Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Effective Date. This Agreement shall be effective as of the
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effective date (the "Effective Date") of the Combination Transaction.
2. Engagement. Xxxxxx is hereby engaged on the Effective Date as
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a consultant to the Company and as the Chairman of the Board of Directors of the
Company. In his capacity as consultant and Chairman of the Board, Xxxxxx will
report directly to the Board of Directors of the Company.
3. Engagement Period. Unless earlier terminated herein in
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accordance with Section 7 hereof, Xxxxxx'x engagement under this Agreement shall
begin on the Effective Date and extend for a period (the "Engagement Period")
ending on the date which is five (5) years after the Effective Date.
4. Directorship. Pursuant to the Combination Transaction, as of
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the Effective Date, Xxxxxx was elected to a one-year term as a director of the
Company. At the end of such term as director and thereafter during the
Engagement Period, the Board of Directors of the Company shall, subject to the
satisfaction of its fiduciary responsibilities, nominate Xxxxxx for re-election
to the Board of Directors and, if so elected by the shareholders of the Company,
shall appoint Xxxxxx as Chairman of the Board.
5. Extent of Service. During the Engagement Period, Xxxxxx
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agrees to devote substantial time and attention to the performance of his duties
as Chairman of the Board and to make himself reasonably available on a
substantially full-time basis for consultation with the Board of Directors and
executive management of the Company on matters pertaining to the business of the
Company, including, without limitation, such matters as acquisitions and
corporate strategy, as well as ongoing operational and business issues.
6. Compensation and Benefits.
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(a) Compensation. During the Engagement Period, the Company
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will pay to Xxxxxx compensation ("Compensation") at the Adjusted Annual Rate,
less normal withholdings, payable in equal monthly or more frequent installments
as are customary under the Company's payroll practices from time to time.
For purposes of this Section 6(a), the following terms have the
following meanings.
"Adjusted Annual Rate" shall mean, for each calendar year during the
Engagement Period, the product of the Base Rate, multiplied by the sum of
(1.00) plus the Percent Index Change for such calendar year.
"Rate" shall mean U.S.$220,000 per year, provided that the Base
Rate shall be automatically reduced from U.S.$220,000 to U.S.$150,000 per
year upon the occurrence of any of the events described in Section 8(b)
hereof.
"Percent Index Change" shall mean with respect to each January 1, a
percentage equal to: (Current Index for such January 1 - the Base
Index)/Base Index, but not less than zero.
"Current Index" shall mean with respect to each January 1 during the
Engagement Period, the CPI published as final for August of the previous
calendar year.
"Base Index" shall mean the CPI published as final for August 1997.
"CPI" shall mean the Consumer Price Index for All Urban Consumers,
U.S. City Average, for all Items (1982-1984 = 100), as published from time
to time by the Bureau of Labor Statistics of the U.S. Department of Labor
(or if such index is no longer published, another comparable measure
established by a source mutually agreeable to Xxxxxx and the Company).
For example, if the Base rate is U.S.$220,000, and the Percent Index
Change for calendar year 1999 is +5%, then the Adjusted Annual Rate for calendar
year 1999 is U.S.$231,000.
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(b) Welfare Benefit Plans. During the Engagement Period, Xxxxxx
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and Xxxxxx'x family shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and programs provided
by the Company and its affiliated companies (including, without limitation,
medical, disability, life, and accidental death insurance plans and programs) to
the extent applicable generally to the executive officers of the Company and its
affiliated companies, and on the same basis as such other executive officers.
Without limiting the foregoing, during the Engagement Period, the Company shall
at a minimum provide Xxxxxx and his spouse with comprehensive medical and
hospitalization insurance coverage.
(c) Expenses. During the Engagement Period, Xxxxxx shall be
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entitled to receive prompt reimbursement for all reasonable expenses incurred by
Xxxxxx in accordance with the policies, practices and procedures of the Company
and its affiliated companies to the extent applicable generally to other
executive officers of the Company and its affiliated companies.
(d) Fringe Benefits. During the Engagement Period, Xxxxxx shall be
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entitled to fringe benefits in accordance with the plans, practices, programs
and policies of the Company and its affiliated companies in effect for executive
officers of the Company and its affiliated companies. Without limiting the
foregoing, during the Engagement Period, the Company shall provide Xxxxxx with
an automobile of Xxxxxx'x choosing and pay related lease payments, insurance and
maintenance expenses thereon.
7. Termination of Engagement.
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(a) Death or Disability. Xxxxxx'x engagement shall terminate
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automatically upon Xxxxxx'x death during the Engagement Period. If the Company
determines in good faith that the Disability of Xxxxxx has occurred during the
Engagement Period (pursuant to the definition of Disability set forth below), it
may give to Xxxxxx written notice in accordance with this Agreement of its
intention to terminate Xxxxxx'x engagement. In such event, Xxxxxx'x engagement
with the Company shall terminate effective on the 30th day after receipt of such
written notice by Xxxxxx (the "Disability Effective Date"), provided that,
within the 30 days after such receipt, Xxxxxx shall not have returned to full-
time performance of Xxxxxx'x duties. For purposes of this Agreement,
"Disability" shall mean a mental or physical disability as determined by the
Board of Directors of the Company in accordance with standards and procedures
similar to those under the Company's employee long-term disability plan, if any.
At any time that the Company does not maintain such a long-term disability plan,
Disability shall mean the inability of Xxxxxx, as determined by the Board, to
substantially perform the essential functions of his regular duties and
responsibilities due to a medically determinable physical or mental illness
which has lasted (or can reasonably be expected to last) for a period of six
consecutive months.
(b) Termination by the Company. The Company may terminate Xxxxxx'x
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consulting engagement during the Engagement Period with or without cause.
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(c) Termination by Xxxxxx. Xxxxxx may at any time resign as
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Chairman of the Board with or without retaining his consulting engagement for
the remainder of the Engagement Period. Xxxxxx may at any time terminate his
consulting engagement with or without Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) a reduction by the Company in Xxxxxx'x Compensation and
benefits as in effect on the Effective Date or as the same may be increased from
time to time; or
(ii) Xxxxxx'x removal or failure to be reelected as a director
of the Company or as Chairman of the Board, but not including Xxxxxx'x voluntary
resignation or failure to accept nomination as a director or as Chairman of the
Board; or
(iii) any failure by the Company to comply with and satisfy
Section 14(b) of this Agreement.
(d) Notice of Termination. Any termination by the Company, or by
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Xxxxxx for Good Reason, shall be communicated by Notice of Termination to the
other party hereto given in accordance with this Agreement. For purposes of
this Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Xxxxxx'x engagement
under the provision so indicated and (iii) if the Date of Termination (as
defined below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than 30 days after the giving of
such notice). The failure by Xxxxxx to set forth in the Notice of Termination
any fact or circumstance which contributes to a showing of Good Reason shall not
waive any right of Xxxxxx hereunder or preclude Xxxxxx from asserting such fact
or circumstance in enforcing Xxxxxx'x rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
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Xxxxxx'x engagement is terminated by the Company other than for Xxxxxx'x death
or Disability, or by Xxxxxx for Good Reason, the date of receipt of the Notice
of Termination or any later date specified therein, as the case may be, and (ii)
if Xxxxxx'x engagement is terminated by reason of death or Disability, the Date
of Termination shall be the date of death or the Disability Effective Date, as
the case may be.
8. Obligations of the Company upon Termination.
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(a) Termination by the Company other than for Death or Disability;
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Termination by Xxxxxx for Good Reason. If, during the Engagement Period, the
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Company shall terminate Xxxxxx'x consulting engagement other than for death or
Disability, or Xxxxxx shall terminate his consulting engagement for Good Reason,
then in consideration of Xxxxxx'x services rendered prior to such termination
and of Xxxxxx'x covenants contained in Section 9 hereof:
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(i) the Company shall pay to Xxxxxx in a lump sum in cash
within 30 days after the Date of Termination the sum of (1) Xxxxxx'x
Compensation through the Date of Termination to the extent not theretofore paid,
and (2) any compensation previously deferred by Xxxxxx (together with any
accrued interest or earnings thereon) to the extent not theretofore paid (the
sum of the amounts described in clauses (1) and (2) shall be hereinafter
referred to as the "Accrued Obligations"); and
(ii) the Company shall continue to pay to Xxxxxx his
Compensation in accordance with 6(a) hereof for the period beginning on the Date
of Termination and ending on the last day of the scheduled Engagement Period
(the "Remaining Engagement Period"); and
(iii) for the Remaining Engagement Period, or such longer
period as may be provided by the terms of the appropriate plan, program,
practice or policy, the Company shall continue benefits to Xxxxxx and/or
Xxxxxx'x family at least equal to those which would have been provided to them
in accordance with the welfare plans, programs, practices and policies described
in Section 6(b) of this Agreement if Xxxxxx'x engagement had not been terminated
or, if more favorable to Xxxxxx, as in effect generally at any time thereafter
with respect to other peer executives of the Company and its affiliated
companies and their families, provided, however, that if Xxxxxx becomes re-
employed with another employer and is eligible to receive medical or other
welfare benefits under another employer provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided under
such other plan during such applicable period of eligibility ("Welfare
Benefits"); and
(iv) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to Xxxxxx any other amounts or benefits
required to be paid or provided or which Xxxxxx is eligible to receive under any
plan, program, policy or practice or contract or agreement of the Company and
its affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits"). With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 8(a) shall
include, without limitation, Xxxxxx'x continued use during the Engagement Period
of a Company automobile as provided in Section 6(e) hereof.
(b) Termination by Xxxxxx other than for Good Reason; Termination
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due to Disability. If, during the Engagement Period, Xxxxxx shall terminate his
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consulting engagement other than for Good Reason, or Xxxxxx'x engagement is
terminated due to his Disability, then in consideration of Xxxxxx'x services
rendered prior to such termination and of Xxxxxx'x covenants contained in
Section 9 hereof:
(i) the Company shall pay to Xxxxxx in a lump sum in cash
within 30 days after the Date of Termination the Accrued Obligations; and
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(ii) the Company shall continue to pay Xxxxxx his Compensation
in accordance with Section 6(a) hereof (but with the Base Rate reduced to
U.S.$150,000) for the Remaining Engagement Period; and
(iii) the Company shall continue to provide Xxxxxx the Welfare
Benefits for the Remaining Engagement Period, or such longer period as may be
provided by the terms of the applicable Welfare Benefits; and
(iv) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to Xxxxxx the Other Benefits. With respect
to the provision of Other Benefits, the term Other Benefits as utilized in this
Section 8(b) shall include, without limitation, and Xxxxxx shall be entitled (i)
to the continued use during the Engagement Period of a Company automobile as
provided in Section 6(e) hereof, and (ii) to receive, benefits under such plans,
programs, practices and policies relating to disability benefits, if any, as
applicable generally to executive officers of the Company and its affiliated
companies and their beneficiaries, and on the same basis as such executive
officers and their beneficiaries.
(c) Death. If Xxxxxx'x engagement is terminated by reason of
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Xxxxxx'x death during the Engagement Period, this Agreement shall terminate
without further obligations to Xxxxxx'x legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. Accrued Obligations shall be paid to Xxxxxx'x
estate or beneficiary, as applicable, in a lump sum in cash within 30 days of
the Date of Termination. With respect to the provision of Other Benefits, the
term Other Benefits as utilized in this Section 8(c) shall include, without
limitation, and Xxxxxx'x estate and/or beneficiaries shall be entitled to
receive, benefits under such plans, programs, practices and policies relating to
death benefits, if any, as applicable generally to executive officers of the
Company and its affiliated companies and their beneficiaries, and on the same
basis as such executive officers and their beneficiaries.
9. Restrictive Covenants.
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(a) General. Xxxxxx and the Company understand and agree that the
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purpose of the provisions of this Section 9 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
eliminate Xxxxxx'x post-engagement competition with the Company per se, nor is
it intended to impair or infringe upon Xxxxxx'x right to work, earn a living, or
acquire and possess property from the fruits of Xxxxxx'x labor. Xxxxxx hereby
acknowledges that the restrictions set forth in this Section 9 are reasonable
and that they do not, and will not, unduly impair Xxxxxx'x ability to earn a
living after the termination of this Agreement. Therefore, subject to the
limitations of reasonableness imposed by law upon the restrictions set forth
herein by the time and geographical area described below, Xxxxxx shall be
subject to the restrictions set forth in this Section 9.
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(b) Definitions. The following capitalized terms used in this
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Section 9 shall have the meanings assigned to them below, which definitions
shall apply to both the singular and the plural forms of such terms:
"Competitive Services" means the manufacture and sale to
distributors, retailers and financial service institutions of point-of-sale
software and terminals, comprising check readers, MICRO analyzers, payment
authorization and point-of-transaction promotion loyalty systems, signature
capture devices and electronic transaction processing equipment.
"Confidential Information" means any confidential or
proprietary information possessed by the Company or its affiliated entities or
relating to its or their business, including without limitation, any
confidential "know-how", customer lists, details of client or consultant
contracts, current and anticipated customer requirements, pricing policies,
price lists, market studies, business plans, operational methods, marketing
plans or strategies, product development techniques or plans, computer software
programs (including object code and source code), data and documentation, data
base technologies, systems, structures and architectures, inventions and ideas,
past, current and planned research and development, compilations, devices,
methods, techniques, processes, financial information and data, business
acquisition plans, new personnel acquisition plans and any other information
that would constitute a trade secret under the common law or statutory law of
the State of Georgia.
"Determination Date" means the date of termination of
Xxxxxx'x engagement with the Company hereunder.
"Person" means any individual or any corporation, partnership,
joint venture, association or other entity or enterprise.
"Principal or Representative" means a principal, owner,
partner, shareholder, joint venturer, investor, member, trustee, director,
officer, manager, employee, agent, representative or consultant.
"Protected Clients" means clients of the Company that obtained
any of the Competitive Services from the Company within one (1) year prior to
the Determination Date.
"Protected Employees" means employees of the Company who were
employed by the Company at any time within six (6) months prior to the
Determination Date.
"Restricted Period" means the original Engagement Period,
regardless of any earlier termination of Xxxxxx'x engagement with the Company
hereunder.
"Restricted Territory" means the northern part of the State
of Georgia.
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"Restrictive Covenants" means the restrictive covenants
contained in Section 9(c) hereof.
(c) Restrictive Covenants.
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(i) Restriction on Disclosure and Use of Confidential
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Information. Xxxxxx understands and agrees that the Confidential Information
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constitutes avaluable asset of the Company and its affiliated entities, and may
not be converted to Xxxxxx'x own use. Accordingly, Xxxxxx hereby agrees that he
shall not, directly or indirectly, at any time during the Restricted Period
reveal, divulge, or disclose to any Person not expressly authorized by the
Company any Confidential Information, and Xxxxxx shall not, directly or
indirectly, at any time during the Restricted Period use or make use of any
Confidential Information in connection with any business activity other than
that of the Company. The parties acknowledge and agree that this Agreement is
not intended to, and does not, alter either the Company's rights or Xxxxxx'x
obligations under any state or federal statutory or common law regarding trade
secrets and unfair trade practices.
Anything herein to the contrary notwithstanding, Xxxxxx shall
not be restricted from disclosing or using Confidential Information that: (i) is
or becomes generally available to the public other than as a result of an
unauthorized disclosure by Xxxxxx or Xxxxxx'x agent; (ii) becomes available to
Xxxxxx in a manner that is not in contravention of applicable law from a source
(other than the Company or its affiliated entities or one of its or their
officers, employees, agents or representatives) that is not bound by a
confidential relationship with the Company or its affiliated entities or by a
confidentiality or other similar agreement; (iii) was known to Xxxxxx on a non-
confidential basis and not in contravention of applicable law or a
confidentiality or other similar agreement before its disclosure to Xxxxxx by
the Company or its affiliated entities or one of its or their officers,
employees, agents or representatives; or (iv) is required to be disclosed by
law, court order or other legal process; provided, however, that in the event
disclosure is required by law, Xxxxxx shall provide the Company with prompt
notice of such requirement so that the Company may seek an appropriate
protective order prior to any such required disclosure by Xxxxxx.
(ii) Nonsolicitation of Protected Employees. Xxxxxx
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understands and constitutes agrees that the relationship between the Company and
each of its Protected Employees constitutes a valuable asset of the Company and
may not be converted to Xxxxxx'x own use. Accordingly, Xxxxxx hereby agrees that
during the Restricted Period Xxxxxx shall not directly or indirectly on Xxxxxx'x
own behalf or as a Principal or Representative of any Person or otherwise
solicit or induce any Protected Employee to terminate his or her employment
relationship with the Company or to enter into employment with any other Person.
(iii) Restriction on Relationships with Protected Clients.
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Xxxxxx understands and agrees that the relationship between the Company and each
of its
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Protected Clients constitutes a valuable asset of the Company and may not be
converted to Xxxxxx'x own use. Accordingly, Xxxxxx hereby agrees that, during
the Restricted Period, Xxxxxx shall not, without the prior written consent of
the Company, directly or indirectly, on Xxxxxx'x own behalf or as a Principal or
Representative of any Person or otherwise, solicit a Protected Client for the
purpose of providing or selling Competitive Services; provided, however, that
the prohibition of this covenant shall apply only to Protected Clients with whom
Xxxxxx had Material Contact on the Company's behalf during the twelve (12)
months immediately preceding the termination of Xxxxxx'x engagement hereunder.
For purposes of this Agreement, Xxxxxx had "Material Contact" with a Protected
Client if (a) Xxxxxx had business dealings with the Protected Client on the
Company's behalf; (b) Xxxxxx was responsible for supervising or coordinating the
dealings between the Company and the Protected Client; or (c) Xxxxxx obtained
Confidential Information about the customer as a result of Xxxxxx'x association
with the Company.
(iv) Noncompetition with the Company. During the Restricted
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Period, Xxxxxx, unless acting in accordance with the Company's prior written
consent, will not directly provide any Competitive Services to, and will not,
directly or indirectly, on his own or on behalf of any Person, be affiliated
with as a Principal or Representative any Person engaged, in whole or in part,
in the provision of Competitive Services in a capacity where Xxxxxx'x duties or
responsibilities for such Person will include strategic planning, policymaking
or management; provided, however, that the provisions of this Agreement shall
not be deemed to prohibit the ownership by Xxxxxx of any securities of the
Company or its affiliated entities or not more than five percent (5%) of any
class of securities of any corporation having a class of securities registered
pursuant to the Securities Exchange Act of 1934, as amended.
10. Non-exclusivity of Rights. Nothing in this Agreement shall
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prevent or limit Xxxxxx'x continuing or Checkmate Electronics, Inc.
participation in any plan, program, policy or practice provided by the Company
or any of its affiliated companies and for which Xxxxxx may qualify, nor,
subject to Section 15(d), shall anything herein limit or otherwise affect such
rights as Xxxxxx may have under any contract or agreement with the Company or
any of its affiliated companies. Amounts which are vested benefits or which
Xxxxxx is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
11. Limitation of Benefits in Certain Instances.
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(a) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any benefit, payment or distribution by
the Company to or for the benefit of Xxxxxx (whether payable or distributable
pursuant to the terms of this Agreement or otherwise) (a "Payment") would, if
paid, be subject to the excise tax (the
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"Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), then prior to the making of any Payment to Xxxxxx, a
calculation shall be made comparing (i) the net benefit to Xxxxxx of the Payment
after payment of the Excise Tax, to (ii) the net benefit to Xxxxxx if the
Payment had been limited to the extent necessary to avoid being subject to the
Excise Tax. If the amount calculated under (i) above is less than the amount
calculated under (ii) above, then the Payment shall be reduced to the extent
necessary of avoid the imposition of the Excise Tax. Xxxxxx may select the
Payments to be limited or reduced.
(b) All determinations required to be made under this Section 11,
including whether an Excise Tax would otherwise be imposed and the assumptions
to be utilized in arriving at such determination, shall be made by Ernst & Young
LLP or such other certified public accounting firm as may be designated by
Xxxxxx (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and Xxxxxx within 15 business days of the
receipt of notice from Xxxxxx that a Payment is due to be made, or such earlier
time as is requested by the Company. In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the change of control, Xxxxxx may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company. Any
determination by the Accounting Firm shall be binding upon the Company and
Xxxxxx. As a result of the uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the Accounting Firm hereunder,
it is possible that Payments hereunder will have been unnecessarily limited by
this Section 11 ("Underpayment"), consistent with the calculations required to
be made hereunder. The Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Company to or for the benefit of Xxxxxx.
12. Full Settlement. The Company's obligation to make the
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payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
Xxxxxx or others. In no event shall Xxxxxx be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to Xxxxxx under any of the provisions of this Agreement, and such amounts shall
not be reduced whether or not Xxxxxx obtains other employment. The Company
agrees to pay as incurred, to the full extent permitted by law, all legal fees
and expenses which Xxxxxx may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, Xxxxxx or others of the
validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by Xxxxxx about the amount of any payment pursuant to this Agreement),
plus in each case interest on any delayed payment at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Code.
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13. Representations and Warranties. Xxxxxx hereby represents and
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warrants to the Company that Xxxxxx'x execution of this Agreement and
performance of his obligations hereunder will not violate the terms or
conditions of any contract or obligation, written or oral, between Xxxxxx and
any other person or entity. By executing this Agreement, Checkmate Electronics,
Inc. hereby consents to Xxxxxx'x entrance into this Agreement and acknowledges
that the same does not constitute a violation of the covenants of Xxxxxx
contained in that certain Settlement Agreement, dated as of June 15, 1989, by
and among Xxxxxx, Xxxxx X. Xxxxxx, Stanford Technologies, Inc. and Xxxxxx X.
Xxxxx, Xx. (the "Settlement Agreement").
14. Assignment and Successors.
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(a) Xxxxxx. This Agreement is personal to Xxxxxx and without the
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prior written consent of the Company shall not be assignable by Xxxxxx otherwise
than by will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by Xxxxxx'x legal representatives.
(b) The Company. This Agreement shall inure to the benefit of
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and be binding upon the Company and its successors and assigns. The Company will
require any successor to all or substantially all of the business and/or assets
of the Company (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. As used in this Agreement, "the
Company" shall mean the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise.
15. Miscellaneous.
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(a) Waiver. Failure of either party to insist, in one or more
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instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the Checkmate Electronics, Inc.
performance of any such term or condition or of any other term or condition of
this Agreement, unless such waiver is contained in a writing signed by the party
making the waiver.
(b) Severability. If any provision or covenant, or any part
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thereof, of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted
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as limiting the Company from employing other personnel on such terms and
conditions as may be satisfactory to it.
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(d) Entire Agreement. Beginning on the Effective Date and except
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as specifically provided herein, this Agreement contains the entire agreement
between the Company and Xxxxxx with respect to the subject matter hereof, and,
except as provided to the contrary herein, it supersedes and invalidates any
previous agreements or contracts between them which relate to the subject matter
hereof; provided, however, that this Agreement does not supersede or invalidate
the Settlement Agreement. No representations, inducements, promises or
agreements, oral or otherwise, which are not embodied herein shall be of any
force or effect.
(e) Governing Law. Except to the extent preempted by federal law,
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and without regard to conflict of laws principles, the laws of the State of
Georgia shall govern this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other
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communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered or three days after mailing if
mailed, first class, certified mail, postage prepaid:
To the Company: IVI Checkmate Corp.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Chief Executive Officer
To Xxxxxx: J. Xxxxxxxx Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended
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or modified only by a writing signed by both parties hereto, which makes
specific reference to this Agreement.
(signatures on following page)
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first above written.
IVI CHECKMATE CORP.
By:
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Title:
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EXECUTIVE:
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J. Xxxxxxxx Xxxxxx
Acknowledged for purposes of Section 13:
CHECKMATE ELECTRONICS, INC.
By:
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Title:
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