EXHIBIT 10.5.4
FORM OF EMPLOYMENT AGREEMENT BETWEEN
INTERNATIONAL VERIFACT INC. AND J. XXXXXXXX XXXXXX
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into this day of
, 1998, by and between IVI Checkmate Corp., a corporation
(hereinafter, the "Company"), and J. Xxxxxxxx Xxxxxx (hereinafter, "Xxxxxx").
BACKGROUND
Xxxxxx is the Chairman of the Board and Chief Executive Officer of Checkmate
Electronics, Inc., a Georgia corporation ("Checkmate Electronics"). Checkmate
Electronics was acquired by the Company on the date hereof pursuant to a
Combination Agreement, dated as of January , 1998, by and among the
Company, Checkmate Electronics, 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 effective
date (the "Effective Date") of the Combination Transaction.
2. ENGAGEMENT. Xxxxxx is hereby engaged on the Effective Date as 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 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 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 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.
(a) COMPENSATION. During the Engagement Period, the Company 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.
"Base 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.$131,000.
(b) WELFARE BENEFIT PLANS. During the Engagement Period, Xxxxxx 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
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
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.
(a) DEATH OR DISABILITY. Xxxxxx'x engagement shall terminate
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
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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
consulting engagement during the Engagement Period with or without cause.
(c) TERMINATION BY XXXXXX. Xxxxxx may at any time resign as
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
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
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.
(a) TERMINATION BY THE COMPANY OTHER THAN FOR DEATH OR DISABILITY;
TERMINATION BY XXXXXX FOR GOOD REASON. If, during the Engagement Period,
the 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:
(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
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(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
DUE TO DISABILITY. If, during the Engagement Period, Xxxxxx shall
terminate his 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
(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
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
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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.
(a) GENERAL. Xxxxxx and the Company understand and agree that the
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.
(b) DEFINITIONS. The following capitalized terms used in this
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.
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"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.
"Restrictive Covenants" means the restrictive covenants contained in
Section 9(c) hereof.
(c) RESTRICTIVE COVENANTS.
(i) RESTRICTION ON DISCLOSURE AND USE OF CONFIDENTIAL
INFORMATION. Xxxxxx understands and agrees that the Confidential Information
constitutes a valuable 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 understands
and 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. Xxxxxx
understands and agrees that the relationship between the Company and each of its
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
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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
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 prevent or
limit Xxxxxx'x continuing or future 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.
(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 "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.
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12. FULL SETTLEMENT. The Company's obligation to make the 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.
13. REPRESENTATIONS AND WARRANTIES. Xxxxxx hereby represents and 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, Future 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.
(a) XXXXXX. This Agreement is personal to Xxxxxx and without the 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 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.
(a) WAIVER. Failure of either party to insist, in one or more 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 future 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 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 as
limiting the Company from employing other personnel on such terms and conditions
as may be satisfactory to it.
(d) ENTIRE AGREEMENT. Beginning on the Effective Date and except 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
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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, 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 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 or
modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement.
(signatures on following page)
9
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date first above written.
IVI CHECKMATE CORP.
By: __________________________________
Title: _______________________________
EXECUTIVE:
______________________________________
J. Xxxxxxxx Xxxxxx
Acknowledged for purposes of Section
13:
CHECKMATE ELECTRONICS, INC.
By: __________________________________
Title: _______________________________
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