EXHIBIT 10.28
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), dated as of March 1, 1999,
is entered into by and among IFS International, Inc., a Delaware corporation
(the "Company"), whose principal executive office is located at Rensselaer
Technology Park, 000 Xxxxxx Xxxx, Xxxx, Xxx Xxxx 00000, IFS International, Inc.,
a New York corporation and a wholly owned subsidiary of the Company, and any
other subsidiary of the Company, (the Company and its subsidiaries are sometimes
collectively referred to in this Agreement as the "Companies") and Xxxx X.
Xxxxxxxxx, the "Consultant"), an individual whose address is 0000 Xxxxxxxxx
Xxxxxx, Xxxxxxxxx , XX with reference to the following facts:
RECITALS:
WHEREAS, in June, 1998 the Company retained the services of the
Consultant for a minimum of 4 days per month to assist in fund raising
activities with the Investment Community, to provide advice on the Companies
strategic plan, and to work on other consulting efforts as directed by the
Companies' CEO.
WHEREAS, the Executive and the Company wish to memorialize with this
Agreement their agreement as to the terms and conditions of the Consultant's
employment.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, the parties to this Agreement
(collectively "parties" and individually a "party") agree as follows:
AGREEMENT:
1. DEFINITIONS
Set forth below are definitions of capitalized terms which are
generally used throughout this Agreement and not defined elsewhere in it:
(a) "Affiliate" means any "Person" (as defined below) controlling,
controlled by, or under common control with a party.
(b) "Board" means the Board of Directors of the Company, as such body
may be reconstituted from time to time.
(c) "Change In Control" shall mean, subject to subsections (iv) and
(v) below, the occurrence of any of the following events:
(i) An acquisition of control by an "Acquiring Person" where,
immediately after the subject acquisition, such "Person"
holds "Beneficial Ownership" of more than fifty percent
(50%) of the "Total Combined Voting Power" of the Company's
then outstanding "Voting Securities". The terms in
quotations in the immediately preceding sentence shall, for
purposes of this Agreement, have the following meanings:
(A) "Acquiring Person" shall mean any "Person" which
acquires the defined percentage of securities, with the
exception of: (A) any Employee Benefit Plan (or a trust
forming a part thereof) maintained by the Companies (or
any of them), or any corporation or entity in which the
Companies (or any of them) hold fifty percent (50%) or
more of the "Voting Securities" (each, a "Controlled
Subsidiary"); (B) the Company or any Controlled
Subsidiary; or (C) any "Person" which acquires the
threshold percentage of "Voting Securities" through a
"Non-Control Transaction" (as defined below);
(B) "Non-Control Transaction" shall mean any transaction in
which the stockholders of the Company immediately
before such transaction, directly or indirectly own
immediately following such transaction at least a
majority of the "Total Combined Voting Power" of the
outstanding "Voting Securities" of the surviving
corporation (or other entity) resulting from such
transaction, in substantially the same proportion as
such stockholders' ownership of the "Voting Securities"
of the Company immediately before such transaction;
(C) "Person," "Beneficial Ownership," "Total Combined
Voting Power" and "Voting Securities" shall have the
meanings ascribed to such terms in Sections 13(d) and
14(d) of the Securities Exchange Act and Rule 13d-3
promulgated thereunder; or
(ii) During any period of three (3) consecutive years after the
date of this Agreement, the individuals who constituted the
Company's Board at the beginning of such period (the
"Incumbent Board") cease to constitute a majority of the
Company's Board, for any reason(s) other than (A) the
voluntary resignation of one or more Board members; (B) the
refusal by one or more Board members to stand for election
to the Board; and/or (C) the removal of one or more Board
members for good cause; provided, however, (1) that if the
nomination or election of any new director of the Company
was approved by a vote of at least a majority of the
Incumbent Board, such new director shall be deemed a member
of the Incumbent Board; and (2) that no individual shall be
considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an
actual or threatened "Election Contest" (as described in
Rule 14a-11 promulgated under the Securities Exchange Act of
1934), or as a result of a solicitation of proxies or
consents by or on behalf of an Acquiring Person, other than
a member of the Board (a "Proxy Contest"), or as a result of
any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or
(iii) The Board or the stockholders of the Company approve:
(A) A merger or consolidation or reorganization of the
Company with:
(1) any Controlled Subsidiary, and such transaction is not
a Non-Control Transaction; or
(2) any other corporation or other entity, and such
transaction is not a Non-Control Transaction; or
(B) A complete liquidation or dissolution of the Company,
and such transaction is not a Non-Control Transaction;
or
(C) An agreement for the sale or other disposition of all
or substantially all of the assets of the Company to
(1) any Controlled Subsidiary, and such transaction is
not a Non-Control Transaction, or (2) to any other
Person, and such transaction is not a Non-Control
Transaction.
(iv) Notwithstanding subsections (i) through (iii) above, a
Change In Control shall not be deemed to ----------------
----- have occurred solely because any Person acquired
Beneficial Ownership of more than the threshold percentage
of the outstanding Voting Securities as a result of an
acquisition of Voting Securities by the Company (each, a
"Redemption") which, by reducing the number of Voting
Securities outstanding, increased the percentage of
outstanding Voting Securities Beneficially Owned by such
Person; provided, however, that if (A) a Change In Control
would occur as a result of a Redemption but for the
operation of this sentence, and (B) after such Redemption,
such Person becomes the Beneficial Owner of any additional
Voting Securities, which increase the percentage of the then
outstanding Voting Securities Beneficially Owned by such
Person over the percentage owned as a result of the
Redemption, then a Change In Control shall be deemed to
occur.
(v) Notwithstanding any other provision of this subsection (c),
if the Executive or an Affiliate of the Executive who is
then a stockholder or director of the Company, either: (i)
expressly voted in favor of the transaction constituting the
Change In Control in such Person's capacity as either a
stockholder or as a director of the Company; or (ii)
expressly abstained from voting (other than by reason of an
"interest" in a matter or transaction); and/or (iii) failed
or refused to vote, then the transaction shall not
constitute a Change in Control.
(d) "Disability" (or the related term "Disabled") means any of the
following: (i) the receipt of any disability insurance benefits
by the Executive; (ii) a declaration by a court of competent
jurisdiction that the Executive is legally incompetent; (iii) the
Executive's material inability due to medically documented mental
or physical illness or disability to fully perform the
Executive's regular duties of his employment, for a three (3)
month continuous period, or for six (6) cumulative months within
any one (1) year continuous period; or (iv) the reasonable
determination by the Chief Executive Officer that the Executive
will not be able to fully perform the Executive's regular duties
of his employment for a three (3) month continuous period. If the
Chief Executive Officer determines that the Executive is Disabled
under subsection (iv) above, and the Executive disagrees with the
conclusion of the Chief Executive Officer, then the Company shall
engage a qualified independent physician reasonably acceptable to
the Executive to examine the Executive at the sole expense of the
Company. The determination of such physician shall be provided in
writing to the parties and shall be final and binding upon the
parties for all purposes of this Agreement. The Executive hereby
consents to examination in the manner set forth above, and waives
any physician-patient privilege arising from any such examination
as it relates to the determination of the purported disability.
If the parties cannot agree upon a physician, a physician shall
be appointed by the American Arbitration Association according to
the rules and practices of the American Arbitration Association
from time-to-time in force.
(e) "Person" (other than for purposes of determining a Change in
Control) means an individual or natural person, a corporation,
partnership (limited or general), joint-venture, association,
business trust, limited liability company or partnership, trust
(whether revocable or irrevocable), pension or profit sharing
plan, individual retirement account, or fiduciary or custodial
arrangement.
(f) "Termination By Companies For Cause" means a termination of the
Consultant caused by a determination of two-thirds of the
Company's Board, excluding the Executive if then a member of the
Board, that one of the following events has occurred:
(i) Any of the Consultant's representations or warranties in
this Agreement is not materially true, accurate and/or
complete;
(ii) The Consultant has intentionally and continually breached or
wrongfully failed and/or refused to fulfill and/or perform
(A) any of the Executive's obligations, promises or
covenants under this Agreement, or (B) any of the
warranties, obligations, promises or covenants in any
agreement (other than this Agreement) entered into between
the Companies (or any of them) and the Consultant, without
cure, if any, as provided in such agreement;
(iii)The Consultant has intentionally failed and/or refused to
obey any lawful and proper order or directive of the Board
or the Chief Executive Officer, and/or the Consultant has
intentionally interfered with the compliance by other
employees of the Companies (or any of them) with any such
orders or directives;
(iv) The Consultant has intentionally breached the Executive's
fiduciary duties to the Companies (or any of them);
(v) The Consultant has intentionally caused the Companies (or
any of them) to be convicted of a crime, or to incur
criminal penalties in material amounts;
(vi) The Consultant has committed: (A) any act of fraud,
misrepresentation, theft, embezzlement or misappropriation,
and/or any other dishonest act against the Companies (or any
of them); or (B) any other offense involving moral
turpitude, which offense is followed by conviction or by
final action of any court of law; or (C) a felony;
(vii)The Consultant repeatedly and intemperately uses alcohol or
drugs, to the extent that such use (A) interferes with or is
likely to interfere with the consultant's ability to perform
the Consultant's duties, and/or (B) endangers or is likely
to endanger the life, health, safety, or property of the
Consultant, the Companies (or any of them), or any other
person;
(viii) The Consultant has intentionally demonstrated or committed
such acts of racism, sexism or other discrimination as would
tend to bring the Companies (or any of them) into public
scandal or ridicule, or could otherwise result in material
and substantial harm to the business, reputation,
operations, affairs or financial position of the Companies
(or any of them); and/or
(ix) The Consultant engaged in other conduct constituting legal
cause for termination.
No act, nor failure to act, on the Consultant's part shall be considered
"intentional" unless the consultant has acted, or failed to act, with a lack of
good faith and with a lack of reasonable belief that the consultant's action or
failure to act was in the best interests of the Companies (or any of them). In
the event the consultant is both Disabled and the provisions of subsection (vii)
of this section 1(f) are applicable, the Companies shall have the right to deem
such event as a Termination By Companies For Cause.
(g) "Termination By Consultant For Good Reason" means the
consultant's termination of this Agreement based on his
reasonable determination that one of the following events has
occurred:
(i) Any of the representations or warranties in this Agreement
made by the Companies are not materially true, accurate
and/or complete;
(ii) The Companies (or any of them) intentionally and continually
breach or wrongfully fail to fulfill or perform (A) their
obligations, promises or covenants under this Agreement; or
(B) any warranties, obligations, promises or covenants in
any agreement (other than this Agreement) entered into
between the Companies (or any of them) and the Consultant,
without cure, if any, as provided in such agreement;
(iii)The Companies terminate this Agreement and the Consultant's
employment hereunder, and such termination does not
constitute Termination By Companies For Cause;
If any of the events described in this section 1(g) occurs, and such event is
reasonably susceptible of being cured, the Companies shall be entitled to a
grace period of thirty (30) days following receipt of written notice of such
event to effect such cure.
2. EMPLOYMENT OBLIGATIONS
(a) Engagement; Duties. The Company hereby engages the Consultant to continue
to execute the duties as described in the recitals.
The Consultant shall report solely to the Company's Chief Executive Officer. The
Executive's responsibilities with respect to the Companies may be changed or
supplemented by the Chief Executive Officer from time-to-time, in his
discretion. The Consultant shall be reasonably available to travel as the needs
of the business of the Companies may require.
(b) Performance. The Consultant shall devote a minimum of 4 days per month
solely and exclusively to the performance of the Consultant's duties
hereunder and the business of the Companies. The Consultant shall at all
times faithfully, loyally, conscientiously, diligently and, to the best of
the consultant's ability, perform all of the Consultant's duties and
obligations under this Agreement, and otherwise promote the interests and
welfare of the Companies, all consistent with the highest and best
standards of the Companies' industry. The Consultant: (i) shall strictly
comply with and adhere to all applicable laws, and the Companies' Articles
of Incorporation, Bylaws and policies; (ii) shall obey all reasonable rules
and regulations and policies now in effect or as subsequently modified
governing the conduct of employees of the Companies, and (iii) shall not
commit any acts of gross negligence, willful misconduct, dishonesty, fraud
or misrepresentation, racism, sexism or other discrimination, or any other
acts which would tend to bring the Companies (or any of them) into public
scandal or ridicule, or would otherwise result in material harm to the
business or reputation of the Companies or any of them.
(c) Facilities and Services. The Companies shall provide such support staff,
facilities, equipment and supplies as are reasonably necessary or suitable
for the adequate performance of the Consultant's duties and obligations
under this Agreement, including technical and secretarial help.
3. TERM
(a) Initial Term. Unless this Agreement is previously terminated by either
party as provided in section 10 below, the Companies hereby employ the
Consultant pursuant to the terms of this Agreement, and the Consultant
hereby accepts such engagement, for the period beginning on March 1, 1999
and ending on February 28, 2002. (the "Initial Term").
(b) Automatic Renewal; Termination by the Companies. This Agreement will be
automatically renewed for additional and consecutive one (1) year terms
(each, a "Renewal Term") following the expiration of each Initial or
Renewal Term, (each a "Term"), unless either party gives written notice to
the other party, no later than sixty (60) days prior to the expiration of
the then pending Term, of its or his election not to automatically renew
this Agreement for an additional year.
4. COMPENSATION
(a) Annual Fee. During the Term, the Companies shall pay to the Consultant an
annual fee of One Hundred Twenty Thousand Dollars ($120,000). The fee shall
be paid in monthly installments of ten thousand dollars per month on the
first working day of each calendar month.
(b) Annual Review. Commencing on March 1, 2000, and on each March 1st
thereafter, the then effective Annual Fee may be increased (but may not be
decreased) by an amount deemed appropriate by the Company's compensation
committee
(c) Payment of Compensation. The compensation to be paid hereunder shall be
paid entirely by the Company or in part by the Company and any other
subsidiary, as they may mutually agree.
5. BUSINESS EXPENSES
During the Term of this Agreement the Consultant is authorized to incur, and the
Companies shall directly pay or reimburse to the Consultant, his reasonable and
necessary business expenses, duly and actually incurred in connection with the
duties and services to be performed by the Consultant pursuant to this
Agreement, including without limitation entertainment, meals, travel, lodging
and other similar out-of-pocket expenses, upon the Consultant's submission to
the Companies of itemized expense statements setting forth the date, purpose and
amount of the expense incurred, together with corresponding receipts showing
payment by the Consultant in cases where he seeks reimbursement, all in
conformity with business expense payment and/or reimbursement policies
established by the Companies from time to time, all of which shall comply with
the substantiation requirements of any applicable taxing authorities, and
regulations promulgated by such authorities thereto, pertaining to the
deductibility of such expenses. Direct payment and/or reimbursement shall be
made by the Companies no later than fifteen (15) days from the date that the
foregoing documentation is submitted by the Consultant.
6. NONCOMPETITION, NONSOLICITATION AND NONINTERFERENCE AND
PROPRIETARY PROPERTY AND CONFIDENTIAL
INFORMATION PROVISIONS.
(a) Noncompetition.
(1) "Applicable Definitions" For purposes of this section 9, the
following capitalized terms shall have the definitions set
forth below:
i. "Business Segments" - The term "Business Segments" is
defined as each of the Companies' products or product
lines.
ii. "Competitive Business" - The term "Competitive
Business" is defined as any business that directly
competes with the Companies' Business Segments, whether
such business is conducted by a proprietorship,
partnership, corporation or other entity or venture.
iii. "Territory" - The term "Territory" is defined as the
geographic area (both within the United States and
internationally) in which each Business Segment is
carried on including, by way of example and not
limitation, the entire geographic area in which the
Companies conduct various phases of such Business
Segment, including purchasing, production,
distribution, promotional and marketing activities, and
sales.
(2) Covenant Not To Compete. The Executive hereby covenants and
agrees that during the term of this Agreement, and for a
period of one (1) year from the date this Agreement is
terminated or expires, the Executive shall not, with respect
to each Business Segment and within the boundaries of the
Territory applicable to such Business Segment, without the
prior written consent of the Companies (which consent may be
withheld in the sole and absolute discretion of Companies),
directly or indirectly, either alone or in association or in
connection with or on behalf of any person, firm,
partnership, corporation or other entity or venture now
existing or hereafter created: (i) be or become interested
or engaged in, directly or indirectly, with any Competitive
Business including, without limitation, being or becoming an
organizer, investor, lender, partner, joint venturer,
stockholder, officer, director, employee, manager,
independent sales representative, associate, consultant,
agent, supplier, vendor, vendee, lessor, or lessee to any
Competitive Business, or (ii) in any manner associate with,
or aid or abet or give information or financial assistance
to any Competitive Business, or (iii) use or permit the use
of the Executive's name or any part thereof to be used or
employed in connection with any Competitive Business
(collectively and severally, the "Noncompetition
Covenants"). Notwithstanding the foregoing, the provisions
of this section 9(a)2 shall not be deemed to prevent the
purchase or ownership by the Executive as a passive
investment of the outstanding capital shares of any publicly
held corporation, so long as any other obligation or duty
under the Noncompetition Covenants are not breached.
(3) Separate Covenants. The Noncompetition Covenants shall be
construed to be divided into separate and distinct
Noncompetition Covenants with respect to (i) each Business
Segment and (ii) each matter or type of conduct described
therein. Each of such divided Noncompetition Covenants shall
be separate and distinct from all such other Noncompetition
Covenants with respect to the same or any other Business
Segment.
(4) Acknowledgements. The Executive acknowledges that: (i) the
covenants and the restrictions contained in the
Noncompetition Covenants are necessary, fundamental, and
required for the protection of the business of the
Companies; (ii) the Noncompetition Covenants relate to
matters which are of a special, unique and extraordinary
value; and (iii) a breach of any of the Noncompetition
Covenants will result in irreparable harm and damages which
cannot be adequately compensated by a monetary award.
(5) Judicial Limitation. Notwithstanding the foregoing, if at
any time a court of competent jurisdiction holds that any
portion of any Noncompetition Covenant is unenforceable by
reason of its extending for too great a period of time or
over too great a geographical area or by reason of its being
too extensive in any other respect, such Noncompetition
Covenant shall be interpreted to extend only over the
maximum period of time, maximum geographical area, or
maximum extent in all other respects, as the case may be, as
to which it may be enforceable, all as determined by such
court in such action.
(b) Nonsolicitation and Noninterference.
(1) Covenants. The Consultant hereby covenants and agrees
that during the term of this Agreement, and for a
period of two (2) years from the date this Agreement
terminates or expires, the Executive shall not, either
for the Consultant's own account or directly or
indirectly in conjunction with or on behalf of any
person, partnership, corporation or other entity or
venture:
i. Solicit or employ or attempt to solicit or employ any
person who is then or has, within twelve (12) months
prior thereto, been an officer, partner, manager, agent
or employee of the Companies or any affiliate of the
Companies whether or not such a person would commit a
breach of that person's contract of employment with the
Companies (or any of them), if any, by reason of
leaving the service of the Companies (the
"Nonsolicitation Covenant"); or
ii. On behalf of, directly or indirectly, any Competitive
Business (as such term is defined in section 9(a)1.ii.,
or for the purpose of or with the reasonably
foreseeable effect of harming the business of the
Companies, solicit the business of any person, firm or
company which is then, or has been at any time during
the preceding twelve (12) months prior to such
solicitation, a customer, client, contractor, supplier
or vendor of the Companies (or any of them) (the
"Noninterference Covenant)".
(2) Acknowledgments. Each of the parties acknowledges that: (i)
the covenants and the restrictions contained in the
Nonsolicitation and Noninterference Covenants are necessary,
fundamental, and required for the protection of the
Companies' businesses; (ii) such Covenants relate to matters
which are of a special, unique and extraordinary value; and
(iii) a breach of either of such Covenants will result in
irreparable harm and damages which cannot be adequately
compensated by a monetary award.
(3) Judicial Limitation. Notwithstanding the foregoing, if at
any time, despite the express agreement of the Companies and
the Consultant, a court of competent jurisdiction holds that
any portion of any Nonsolicitation or Noninterference
Covenant is unenforceable by reason of its extending for too
great a period of time or by reason of its being too
extensive in any other respect, such Covenant shall be
interpreted to extend only over the maximum period of time
or to the maximum extent in all other respects, as the case
may be, as to which it may be enforceable, all as determined
by such court in such action.
(c) Proprietary Property; Confidential Information.
(1) "Applicable Definitions" For purposes of this section
9(c), the following capitalized terms shall have the
definitions set forth below:
i. "Confidential Information" - The term
"Confidential Information" is collectively and severally defined as any
information, matter or thing of a secret, confidential or private
nature, whether or not so labeled, which is connected with the business
or methods of operation of the Companies (or any of them) or concerning
any of their suppliers, customers, licensors, licensees or others with
whom the Companies (or either of them) have a business relationship,
and which has current or potential value to the Companies (or any of
them) or the unauthorized disclosure of which could be detrimental to
the Companies (or any of them). Confidential Information shall be
broadly defined and shall include, by way of example and not
limitation,: (i) matters of a business nature available only to
management and owners of the Companies of which the Executive may
become aware (such as information concerning customers, vendors and
suppliers, including their names, addresses, credit or financial
status, buying or selling habits, practices, requirements, and any
arrangements or contracts that the Companies may have with such
parties, the Companies' marketing methods, plans and strategies, the
costs of materials, the prices for which the Companies obtain or have
obtained or at which the Companies sell or have sold their products or
services, the Companies' manufacturing and sales costs, the amount of
compensation paid to employees of the Companies and other terms of
their employment, financial information such as financial statements,
budgets and projections, and the terms of any contracts or agreements
the Companies have entered into) and (ii) matters of a technical nature
(such as product information, trade secrets, know-how, formulae,
innovations, inventions, devices, discoveries, techniques, formats,
processes, methods, specifications, designs, patterns, schematics,
data, compilation of information, test results, and research and
development projects). For purposes of the foregoing, the term "trade
secrets" shall mean the broadest and most inclusive interpretation of
trade secrets as defined by the Uniform Trade Secrets Act and cases
interpreting the scope of the Uniform Trade Secrets Act.
ii. "Proprietary Property" - The term "Proprietary
Property" is collectively and severally defined as any written or
tangible property, or information stored in electronic media owned or
used by the Companies in connection with the business of the Companies,
whether or not such property also qualifies as Confidential
Information. Proprietary Property shall be broadly defined and shall
include, by way of example and not limitation, products, samples,
equipment, files, lists, books, notebooks, records, documents,
memoranda, reports, patterns, schematics, compilations, designs,
drawings, data, test results, contracts, agreements, literature,
correspondence, spread sheets, computer programs and software, computer
print outs, other written and graphic records, and the like, whether
originals, copies, duplicates or summaries thereof, affecting or
relating to the business of Company, financial statements, budgets,
projections, invoices.
(2) Ownership of Proprietary Property. The Consultant acknowledges that
all Proprietary Property which the Consultant may prepare, use,
observe, come into possession of and/or control shall, at all times,
remain the sole and exclusive property of the Companies. The
Consultant shall, upon demand by the Companies at any time, or upon
the cessation of the Consultant's employment, irrespective of the
time, manner, cause or lack of cause of such cessation, immediately
deliver to the Companies or their designated agent, in good condition,
ordinary wear and tear and damage by any cause beyond the reasonable
control of the Consultant excepted, all items of the Proprietary
Property which are or have been in the Consultant's possession or
under his control, as well as a statement describing the disposition
of all items of the Proprietary Property beyond the consultant's
possession or control in the event that the Consultant has not
previously returned such items of the Proprietary Property to the
Companies.
(3) Agreement Not to Use or Divulge Confidential Information. The
Consultant agrees that he will not, in any fashion, form or manner,
unless specifically consented to in writing by the Companies, either
directly or indirectly use, divulge, transmit or otherwise disclose or
cause to be used, divulged, transmitted or otherwise disclosed to any
person, firm or corporation, in any manner whatsoever (other than in
the consultant's performance of duties for the Companies or except as
required by law) any Confidential Information of any kind, nature or
description. The foregoing provisions shall not be construed to
prevent the consultant from making use of or disclosing information
which is in the public domain through no fault of the cjonsultant,
provided, however, specific information shall not be deemed to be in
the public domain merely because it is encompassed by some general
information that is published or in the public domain or in the
consultant's possession prior to the consultant's employment with the
Companies.
(4) Acknowledgment of Secrecy. The consultant acknowledges that the
Confidential Information is not generally known to the public or to
other persons who can obtain economic value from its disclosure or use
and that the Confidential Information derives independent economic
value thereby, and the Executive agrees that he shall take all efforts
reasonably necessary to maintain the secrecy and confidentiality of
the Confidential Information and to otherwise comply with the terms of
this Agreement.
(5) Inventions, Discoveries. The Consultant acknowledges that any
inventions, discoveries or trade secrets, whether patentable or not,
made or found by the Consultant in the scope of his employment with
the Companies constitute property of the Companies and that any rights
therein now held or hereafter acquired by the Consultant individually
or in any capacity are hereby transferred and assigned to the
Companies, and agrees to execute and deliver any confirmatory
assignments, documents or instruments of any nature necessary to carry
out the intent of this section when requested by the Companies without
further compensation therefor, whether or not the Cjonsultant is at
the time employed by the Companies. Provided, however, notwithstanding
the foregoing, the Executive shall not be required to assign his
rights in any invention which the Consultant developed entirely on his
own time without using the Companies' equipment, supplies, facilities
or trade secret information except for those inventions that either:
(i) Relate at the time of conception or reduction to practice of the
invention to the Companies' business, or actual or demonstrably
anticipated research or development of the Companies; or
(ii) Result from any work performed by the Consultant for the
Companies.
The Consultant understands that he bears the full burden of
proving to the Companies that an invention qualifies fully under this section
9(c)(5).
10. TERMINATION OF AGREEMENT BEFORE EXPIRATION OF TERM
(c) Death or Disability. Notwithstanding any other term of this
Agreement, the applicable Term shall terminate upon the death or
Disability of the Consultant.
(d) Change In Control. Notwithstanding any other term of this
Agreement, the applicable Term shall, at the election of the
Consultant delivered by written notice to the Company, terminate
effective upon a Change In Control.
(e) Termination of Agreement by Companies for Cause. The
Companies may terminate this Agreement and the Consultant's employment hereunder
at any time in the event such termination constitutes Termination By Companies
For Cause, upon giving written notice to the Consultant specifying in reasonable
detail (i) the event which constitutes the cause; (ii) the pertinent facts and
circumstances underlying the cause; and (iii) the effective date of the
termination (not to exceed ninety {90} days from the date of such notice, but
which date may, at the Companies' election, be effective upon receipt of said
written notice by the Consultant). Such notice shall also afford the Consultant
an opportunity to be heard in person by the Board (with the assistance of the
Consultant's legal counsel, if the Consultant so desires). Such hearing shall be
held reasonably promptly after such notice but, in any event, before the
effective date of the prospective termination.
(f) Termination of Agreement by Executive for Good Reason. The
Consultant may terminate this Agreement and the Consultant's employment
hereunder at any time in the event such termination constitutes Termination By
Executive For Good Reason, upon giving written notice to the Companies
specifying in reasonable detail (i) the event which constitutes the good reason;
(ii) the pertinent facts and circumstances underlying the good reason; and (iii)
the effective date of termination (which, in the case of an event described in
section 1(g) which is reasonably susceptible of being cured, shall not be less
than thirty {30} days from the date of such notice).
.
11. EFFECT OF TERMINATION ATTRIBUTABLE TO DEATH OR DISABILITY; TERMINATION BY
COMPANIES FOR CAUSE; TERMINATION BY EXECUTIVE WITHOUT GOOD REASON:
In the event the Consultant's employment hereunder is
terminated before the expiration of a Term, and such termination is attributable
to (i) an event defined as Death or Disability; (ii) an event defined as
Termination By Companies For Cause; (iii) termination by the Executive which
does not constitute Termination By Executive For Good Reason, then all rights
and obligations of the Companies and the Consultant under section 2 [Employment
Obligations], section 4 [Compensation], section 5 [Business Expenses], and
section 9 [Noncompetition, Nonsolications and Noninterference and Proprietary
Property and Confidential Information Provisions] shall terminate as of the
effective date of the termination; provided, however:
(a) The Companies shall pay the Consultant's accrued but
unpaid Annual Fees through the effective date of the termination on or before
the close of business on such effective date,. provided, that if the termination
is due to the death or Disability of the Executive, then the Companies shall
also pay to the Consultant or his estate the Consultant's then effective Annual
Fee as set forth in section 4(a), said payment to be calculated for the balance
of the year during which the death or Disability occurred, but in no event shall
such payment total less than one-half of the Annual Fee for the year
(b) The Companies shall reimburse the Consultant for any
business expenses incurred prior to the effective date of the termination,
within three (3) business days after the Consultant's submission of the
Consultant's expense report to the Companies;
12. EFFECT OF TERMINATION WHERE TERMINATION ATTRIBUTABLE TO CHANGE IN CONTROL;
TERMINATION BY CONSULTANT FOR GOOD REASON; TERMINATION BY COMPANIES WITHOUT
CAUSE
In the event the Consultant's employment hereunder is terminated before
the expiration of a Term, and such termination is attributable to (i) an event
defined as a Change in Control; (ii) an event defined as a Termination by
Executive for Good Reason; and/or (iii) termination by the Board of Directors of
IFS International, Inc., a Delaware corporation, which does not constitute a
Termination for Cause; then all rights and obligations of the Companies and the
Consultant under section 2 [Employment Obligations], section 4 [Compensation],
and section 5 [Business Expenses shall terminate as of the effective date of the
termination date; provided, however: that the Consultant shall receive, in a
lump sum and without discount to present value, an amount equal to: the sum of
the Consultant's Annual Fee (calculated at the then current rate) multiplied by
the larger of either (x) the number of years then remaining in the term of this
Agreement (calculated to the nearest day as of the termination date), or (y) two
years. In addition:
(a) The Companies shall reimburse the Consultant for the
Consultant's business expenses incurred through the effective date of
the termination, within three (3) business days of the Consultant's
submission of the Consultant's expense report to the Companies.
The Consultant shall not be required to mitigate the amount of any payment
pursuant to this section 12 by seeking other employment or otherwise, and no
such payment shall be offset or reduced by the amount of any compensation or
benefits provided to the Consultant in any subsequent employment. The provisions
of this section 12 shall be in lieu of any remedy or damages to which the
Consultant may be entitled by reason of a breach of this Agreement by the
Companies, whether such remedy may be recovered at law or in equity.
13. REPRESENTATIONS AND WARRANTIES OF PARTIES
Each of the parties to this Agreement hereby represents and
warrants to each of the other parties to this Agreement, each of which is deemed
to be a separate representation and warranty, as follows:
(x) Organization, Power and Authority. Such party has all
requisite corporate or other power and authority to enter
into this Agreement.
(xi) Authorization and Validity of Agreement. This Agreement has
been duly executed and delivered by such party and, assuming
due authorization, execution and delivery by all of the
other parties hereto, is valid and binding upon such party
in accordance with its terms, except as limited by: (1)
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditor
rights generally; and (2) general principles of equity
(regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(xii)No Breach or Conflict. Neither the execution or delivery of
this Agreement, nor the performance by such party of the
transactions contemplated herein: (i) if such party is an
entity, will breach or conflict with any of the provisions
of such party's governing organizational documents; or (ii)
to the best of such party's knowledge and belief, will such
actions violate or constitute an event of default under any
agreement or other instrument to which such party is a
party.
14. MISCELLANEOUS
(a) Preparation of Agreement; Costs and Expenses. This
Agreement was prepared by the Companies solely on behalf of such party. Each
party acknowledges that: (i) he or it had the advice of, or sufficient
opportunity to obtain the advice of, legal counsel separate and independent of
legal counsel for any other party hereto; (ii) the terms of the transactions
contemplated by this Agreement are fair and reasonable to such party; and (iii)
such party has voluntarily entered into the transactions contemplated by this
Agreement without duress or coercion. Each party further acknowledges that such
party was not represented by the legal counsel of any other party hereto in
connection with the transactions contemplated by this Agreement, nor was he or
it under any belief or understanding that such legal counsel was representing
his or its interests. Except as expressly set forth in this Agreement, each
party shall pay all legal and other costs and expenses incurred or to be
incurred by such party in negotiating and preparing this Agreement; in
performing due diligence or retaining professional advisors; in performing any
transactions contemplated by this Agreement; or in complying with such party's
covenants, agreements and conditions contained herein. Each party agrees that no
conflict, omission or ambiguity in this Agreement, or the interpretation
thereof, shall be presumed, implied or otherwise construed against any other
party to this Agreement on the basis that such party was responsible for
drafting this Agreement.
(b) Cooperation. Each party agrees, without further
consideration, to cooperate and diligently perform any further acts, deeds and
things, and to execute and deliver any documents that may be reasonably
necessary or otherwise reasonably required to consummate, evidence, confirm
and/or carry out the intent and provisions of this Agreement, all without undue
delay or expense.
(c) Interpretation.
(i) Survival. All representations and warranties made by any party in
connection with any transaction contemplated by this Agreement
shall survive the execution and delivery of this Agreement, and
the performance or consummation of any transaction described in
this Agreement.
(ii) Entire Agreement/No Collateral Representations. Each party
expressly acknowledges and agrees that this Agreement, and the
agreements and documents referenced herein: (1) are the final,
complete and exclusive statement of the agreement of the parties
with respect to the subject matter hereof; (2) supersede any
prior or contemporaneous agreements, memorandums, proposals,
commitments, guaranties, assurances, communications, discussions,
promises, representations, understandings, conduct, acts, courses
of dealing, warranties, interpretations or terms of any kind,
whether oral or written (collectively and severally, the "prior
agreements"), and that any such prior agreements are of no force
or effect except as expressly set forth herein; and (3) may not
be varied, supplemented or contradicted by evidence of prior
agreements, or by evidence of subsequent oral agreements. No
prior drafts of this Agreement, and no words or phrases from any
prior drafts, shall be admissible into evidence in any action or
suit involving this Agreement.
(iii)Amendment; Waiver; Forbearance. Except as expressly provided
herein, neither this Agreement nor any of its terms, provisions,
obligations or rights may be amended, modified, supplemented,
augmented, rescinded, discharged or terminated (other than by
performance), except by a written instrument or instruments
signed by all of the parties to this Agreement. No waiver of any
breach of any term, provision or agreement, or of the performance
of any act or obligation under this Agreement, or of any
extension of time for performance of any such act or obligation,
or of any right granted under this Agreement, shall be effective
and binding unless such waiver shall be in a written instrument
or instruments signed by each party claimed to have given or
consented to such waiver. Except to the extent that the party or
parties claimed to have given or consented to a waiver may have
otherwise agreed in writing, no such waiver shall be deemed a
waiver or relinquishment of any other term, provision, agreement,
act, obligation or right granted under this Agreement, or of any
preceding or subsequent breach thereof. No forbearance by a party
in seeking a remedy for any noncompliance or breach by another
party hereto shall be deemed to be a waiver by such forbearing
party of its rights and remedies with respect to such
noncompliance or breach, unless such waiver shall be in a written
instrument or instruments signed by the forbearing party.
(iv) Remedies Cumulative. The remedies of each party under this
Agreement are cumulative and, except as otherwise herein
provided, shall not exclude any other remedies to which such
party may be lawfully entitled.
(v) Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any
extent, be determined to be invalid, illegal or unenforceable
under present or future laws, then, and in that event: (1) the
performance of the offending term or provision (but only to the
extent its application is invalid, illegal or unenforceable)
shall be excused as if it had never been incorporated into this
Agreement, and, in lieu of such excused provision, there shall be
added a provision as similar in terms and amount to such excused
provision as may be possible and be legal, valid and enforceable;
and (2) the remaining part of this Agreement (including the
application of the offending term or provision to persons or
circumstances other than those as to which it is held invalid,
illegal or unenforceable) shall not be affected thereby, and
shall continue in full force and effect to the fullest legal
extent.
(vi) Parties in Interest. Nothing in this Agreement shall confer any
rights or remedies under or by reason of this Agreement on any
persons other than the parties hereto and their respective
successors and assigns, if any, or as may be permitted hereunder;
nor shall anything in this Agreement relieve or discharge the
obligation or liability of any third person to any party to this
Agreement; nor shall any provision give any third person any
right of subrogation or action over or against any party to this
Agreement.
(vii)No Reliance Upon Prior Representation. Each party acknowledges
that: (1) no other party has made any oral representation or
promise which would induce them prior to executing this Agreement
to change their position to their detriment, to partially
perform, or to part with value in reliance upon such
representation or promise; and (2) such party has not so changed
its position, performed or parted with value prior to the time of
the execution of this Agreement, or such party has taken such
action at its own risk.
(viii) Headings; References; Incorporation; Gender; Statutory
References. The headings used in this Agreement are for
convenience and reference purposes only, and shall not be used in
construing or interpreting the scope or intent of this Agreement
or any provision hereof. References to this Agreement shall
include all amendments or renewals thereof. All cross-references
in this Agreement, unless specifically directed to another
agreement or document, shall be construed only to refer to
provisions within this Agreement. Any Exhibit referenced in this
Agreement shall be construed to be incorporated in this Agreement
by such reference. As used in this Agreement, each gender shall
be deemed to include the other gender, including neutral genders
appropriate for entities, if applicable, and the singular shall
be deemed to include the plural, and vice versa, as the context
requires. Any reference to statutes or laws will include all
amendments, modifications, or replacements of the specific
sections and provisions concerned.
(d) Enforcement.
(i) Applicable Law. This Agreement and the rights and remedies of
each party arising out of or relating to this Agreement
(including, without limitation, equitable remedies) shall (with
the exception of the applicable securities laws) be solely
governed by, interpreted under, and construed and enforced in
accordance with the laws (without regard to the conflicts of law
principles) of the State of New York, as if this Agreement were
made, and as if its obligations are to be performed, wholly
within the State of New York.
(ii) Consent to Jurisdiction; Service of Process. Any "action or
proceeding" (as such term is defined below) arising out of or
relating to this Agreement in which the Company seeks injuncture
or other equitable relief shall be filed in and heard and
litigated solely before the state courts of New York. Each party
generally and unconditionally accepts the exclusive jurisdiction
of such courts and venue therein; consents to the service of
process in any such action or proceeding by certified or
registered mailing of the summons and complaint in accordance
with the notice provisions of this Agreement; and waives any
defense or right to object to venue in said courts based upon the
doctrine of "forum non conveniens."
(iii)Waiver of Right to Jury Trial. Each party hereby waives such
party's respective right to a jury trial of any claim or cause of
action which is to be heard and litigated in New York's courts.
Each party acknowledges that this waiver is a material inducement
to each other party hereto to enter into the transaction
contemplated hereby; that each other party has already relied
upon this waiver in entering into this Agreement; and that each
other party will continue to rely on this waiver in their future
dealings. Each party warrants and represents that such party has
reviewed this waiver with such party's legal counsel, and that
such party has knowingly and voluntarily waived its jury trial
rights following consultation with such legal counsel.
(iv) Consent to Specific Performance and Injunctive Relief and Waiver
of Bond or Security. Each party acknowledges that the other
party(s) hereto may, as a result of such party's breach of its
covenants and obligations under this Agreement, sustain immediate
and long-term substantial and irreparable injury and damage which
cannot be reasonably or adequately compensated by damages at law.
Consequently, each party agrees that in the event of such party's
breach or threatened breach of its covenants and obligations
hereunder, the other non-breaching party(s) shall be entitled to
obtain from a court of competent equitable relief including,
without limitation, enforcement of all of the provisions of this
Agreement by specific performance and/or temporary, preliminary
and/or permanent injunctions enforcing any of the rights of such
non-breaching party(s), requiring performance by the breaching
party, or enjoining any breach by the breaching party, all
without proof of any actual damages that have been or may be
caused to such non-breaching party(s) by such breach or
threatened breach and without the posting of bond or other
security in connection therewith. The party against whom such
action or proceeding is brought waives the claim or defense
therein that the party bringing the action or proceeding has an
adequate remedy at law and such party shall not allege or
otherwise assert the legal position that any such remedy at law
exists. Each party agrees and acknowledges: (i) that the terms of
this subsection are fair, reasonable and necessary to protect the
legitimate interests of the other party(s); (ii) that this waiver
is a material inducement to the other party(s) to enter into the
transaction contemplated hereby; (iii) that the other party(s)
has already relied upon this waiver in entering into this
Agreement; and (iv) that each party will continue to rely on this
waiver in their future dealings. Each party warrants and
represents that such party has reviewed this provision with such
party's legal counsel, and that such party has knowingly and
voluntarily waived its rights following consultation with legal
counsel.
(v) Recovery of Fees and Costs. If any party institutes or should the
parties otherwise become a party to any action or proceeding
based upon or arising out of this Agreement including, without
limitation, to enforce or interpret this Agreement or any
provision hereof, or for damages by reason of any alleged breach
of this Agreement or any provision hereof, or for a declaration
of rights in connection herewith, or for any other relief,
including equitable relief, in connection herewith, the
"prevailing party" (as such term is defined below) in any such
action or proceeding, whether or not such action or proceeding
proceeds to final judgment or determination, shall be entitled to
receive from the non-prevailing party as a cost of suit, and not
as damages, all fees, costs and expenses of enforcing any right
of the prevailing party (collectively, "fees and costs"),
including without limitation, (1) reasonable attorneys' fees and
costs and expenses, (2) witness fees (including experts engaged
by the parties, but excluding shareholders, officers, employees
or partners of the parties), (3) accountants' fees, (4) fees of
other professionals, and (5) any and all other similar fees
incurred in the prosecution or defense of the action or
proceeding; including, without limitation, fees incurred in the
following: (A) postjudgment motions; (B) contempt proceedings;
(C) garnishment, levy, and debtor and third party examinations;
(D) discovery; and (E) bankruptcy litigation. All of the
aforesaid fees and costs shall be deemed to have accrued upon the
commencement of such action and shall be paid whether or not such
action is prosecuted to judgment. Any judgment or order entered
in such action shall contain a specific provision providing for
the recovery of attorney the aforesaid fees, costs and expenses
incurred in enforcing such judgment and an award of prejudgment
interest from the date of the breach at the maximum rate of
interest allowed by law. The term "prevailing party" is defined
as the party who is determined to prevail by the court after its
consideration of all damages and equities in the action or
proceeding, whether or not the action or proceeding proceeds to
final judgment (the court shall retain the discretion to
determine that no party is the prevailing party in which case no
party shall be entitled to recover its costs and expenses under
this subsection).
(e) Arbitration.
(i) Jurisdiction. Except as otherwise provided in Par. 14(d)(ii)
above, The parties hereby agree that all controversies, claims
and matters of difference arising out of or in connection with to
the transactions contemplated by this Agreement (collectively,
the "Controversies"), shall, to the maximum extent allowed by
law, be resolved by binding arbitration (an "Arbitration
Proceeding") before the American Arbitration Association (the
"Arbitration Authority") according to the rules and practices of
the Arbitration Authority from time-to-time in force. Without
limiting the generality of the foregoing, the following shall be
considered Controversies for this purpose: (A) all questions
relating to the breach of any obligation, warranty, promise,
right or condition hereunder; (B) the failure of any party to
deny or reject a claim or demand of any other party; and (C) any
question as to whether the right to arbitrate a certain dispute
exists. This agreement to arbitrate shall be self-executing
without the necessity of filing any action in any court and shall
be specifically enforceable under the prevailing arbitration law.
(ii) Initiation. A party shall institute an Arbitration Proceeding by
sending written notice of an intent to arbitrate (the
"Arbitration Notice") to the other parties and to the Arbitration
Authority pursuant to the rules and regulations of the
Arbitration Authority. The Arbitration Notice shall set forth a
description of the dispute, the amount in controversy, and the
remedy sought. An Arbitration Proceeding may proceed in the
absence of any party if the Arbitration Notice has been properly
given to such party.
(iii)Selection of Arbitrator. Within ten (10) business days after
receipt of an Arbitration Notice by the parties, they shall
mutually agree upon a single arbitrator (the "Arbitrator")
selected from a panel of retired judges from the Arbitration
Authority. If the parties are unable to agree upon the
Arbitrator, then the parties shall, within fifteen (15) business
days after receipt of an Arbitration Notice by the parties,
obtain a list of panelists from the Arbitration Authority equal
to the number of parties plus one. The Arbitration Authority
shall arrange and conduct a conference in person and/or by
telephone with all of the parties at a mutually acceptable time
no earlier than ten (10) business days, and no later than twenty
(20) business days, after its delivery of the list of panelists.
At such conference, the parties shall, in such order as
determined by the Arbitration Authority, strike one name from
such list (with no party being allowed to strike a name
previously stricken), and the remaining panelist shall be the
Arbitrator. In the event two or more parties desire to strike the
name of the same arbitrator, then the first party to notify the
Arbitration Authority of their decision shall be deemed to have
stricken such name, in which case such other party or parties
must strike another name.
(iv) Representation. Each party shall have the right to be represented
by legal counsel throughout the Arbitration.
(v) Discovery. The parties shall have the right to engage any and all
comment discovery pertaining to civil litigation as they would be
entitled to pursuant to the laws of civil procedure of the state
of New York.
(vi) Application of Law; Scope of Powers; Written Decision. The
Arbitrator shall apply such principles of law and shall endeavor
to decide the controversy as though the Arbitrator was a judge in
a New York court of law.
(vii)Written Decision. The Arbitrator shall prepare a written
decision, signed by the Arbitrator, that shall be sent to the
parties within thirty (30) calendar days following the conclusion
of the hearing.
(viii) Awards. The parties agree to abide by any award, judgment,
decree or order rendered in any Arbitration Proceeding by the
Arbitrator. The award, judgment, decree or order of the
Arbitrator, and the findings of the Arbitrator, shall be final,
conclusive and binding upon the parties hereto. Any judgment,
decree or order of relief granted by the Arbitrator may be
entered or obtained in any court of competent jurisdiction, state
or federal, in the county in which the residence or principal
office of a non-prevailing party is located, as a basis for
judgment and for the issuance of execution for its collection
and, at the election of the party making such filing, with the
clerk of one or more other courts, state or federal, having
jurisdiction over the party against whom such an award is
rendered, or such party's property.
(f) Assignment and Delegation; Successors and Assigns.
(i) Prohibition Against Assignment or Delegation. Except as
specifically provided in this Agreement, neither party may sell,
license, transfer or assign (whether directly or indirectly, or
by merger, consolidation, conversion, sale of assets, sale or
exchange of securities, or by operation of law, or otherwise) any
of such party's rights or interests or delegate such party's
duties or obligations under this Agreement, in whole or in part,
including to any subsidiary or any Affiliate, without the prior
written consent of the other party, which consent may be withheld
in such other party's sole discretion, provided, however:
(A) Subject to subsections (B) and (C) below, the Companies may,
with the prior written consent of the Consultant, which
consent the Consultant shall not unreasonably withhold,
assign all of the rights and delegate all of the obligations
of the Companies under this Agreement to any other Person in
connection with the transfer or sale of the entire business
of the Company(ies), or the merger or consolidation of the
Companies with or into any other Person, so long as such
transferee, purchaser or surviving Person shall expressly
assumes such obligations of the Companies;
(B) Notwithstanding subsection (A) above to the contrary, no
assignment or transfer under subsection (A) may be
effectuated unless the proposed transferee or assignee first
executes such agreements (including a restated employment
agreement) in such form as Consultant may deem reasonably
satisfactory to (1) evidence the assumption by the proposed
transferee or assignee of the obligations of the Companies;
and (2) to ensure that the Consultant continues to receive
such rights, benefits and protections (both legal and
economic) as were contemplated by the Executive when
entering into this Agreement; and
(C) Notwithstanding subsection (A) above to the contrary: (1)
any assumption by a successor or assign under subsection (A)
above shall in no way release the Companies from any of
their obligations or liabilities while a party to this
Agreement; and (2) any merger, consolidation,
reorganization, sale or conveyance under subsection (A)
above shall not be deemed to abrogate the rights of the
Executive elsewhere contained in this Agreement, including
without limitation those resulting from a Change In Control.
Any purported assignment or transfer in violation of the terms of this
subsection 15(f) shall be null and void ab initio and of no force and effect,
and shall vest no rights or interests in the purported assignee or transferee.
(ii) Successors and Assigns. Subject to subsection 15(f)(i) above, each and
every representation, warranty, covenant, condition and provision of this
Agreement as it relates to each party hereto shall be binding upon and
shall inure to the benefit of such party and his, her or its respective
successors and permitted assigns, spouses, heirs, executors, administrators
and personal and legal representatives, including without limitation any
successor (whether direct or indirect, or by merger, consolidation,
conversion, purchase of assets, purchase of securities or otherwise).
(g) Counterparts; Electronically Transmitted Documents. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument, binding on all parties hereto. Any signature page of this Agreement
may be detached from any counterpart of this Agreement and reattached to any
other counterpart of this Agreement identical in form hereto by having attached
to it one or more additional signature pages. If a copy or counterpart of this
Agreement is originally executed and such copy or counterpart is thereafter
transmitted electronically by facsimile or similar device, such facsimile
document shall for all purposes be treated as if manually signed by the party
whose facsimile signature appears.
(h) Notices. Unless otherwise specifically provided in this
Agreement, all notices, demands, requests, consents, approvals or other
communications (collectively and severally called "notices") required or
permitted to be given hereunder, or which are given with respect to this
Agreement, shall be in writing, and shall be given by: (i) personal delivery
(which form of notice shall be deemed to have been given upon delivery), (ii) by
telegraph or by private airborne/overnight delivery service (which forms of
notice shall be deemed to have been given upon confirmed delivery by the
delivery agency), (iii) by electronic or facsimile or telephonic transmission,
provided the receiving party has a compatible device or confirms receipt thereof
(which forms of notice shall be deemed delivered upon confirmed transmission or
confirmation of receipt), or (iv) by mailing in the United States mail by
registered or certified mail, return receipt requested, postage prepaid (which
forms of notice shall be deemed to have been given upon the fifth {5th} business
day following the date mailed. Notices shall be addressed at the addresses first
set forth above, or to such other address as the party shall have specified in a
writing delivered to the other parties in accordance with this paragraph. Any
notice given to the estate of a party shall be sufficient if addressed to the
party as provided in this section.
WHEREFORE, the parties hereto have executed this Agreement in the City
of Albany, State of New York, as of the date first set forth above.
COMPANIES: IFS INTERNATIONAL, INC.
a Delaware corporation
By:
IFS INTERNATIONAL, INC.
a New York corporation
By:
EXECUTIVE: Xxxx X. Xxxxxxxxx, Consultant
