Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of March 8, 2004,
between Q COMM INTERNATIONAL, INC., a Utah corporation (the "Company"), having
its principal place of business at 000 Xxxx Xxxxxxxxxx Xxx. Xxxxxxxx X, Xxxx,
Xxxx 00000, and XXXXX XXXXXX, residing at 00 Xxxx Xxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxx 00000 (the "Executive").
W I T N E S S E T H
WHEREAS, the Executive is currently employed by the Company on an interim
basis; and
WHEREAS, the Company, recognizing the unique skills and abilities of the
Executive, wishes to hire the Executive on a permanent and full-time basis; and
WHEREAS, the Executive desires to be employed by the Company; and
WHEREAS, the Company and the Executive desire to set forth the terms and
conditions of their employment relationship.
NOW, THEREFORE, in considera tion of the foregoing and the mutual covenants
in this Agreement, the Company and the Executive agree as follows:
1. Employment and Duties. The Company hereby employs the Executive as its
Chief Executive Officer on the terms and conditions provided in this Agreement
and Executive agrees to accept such employment subject to the terms and
conditions of this Agreement. The Executive shall be responsible for the overall
management and operations of the Company and shall perform the duties and
responsibilities as are customary for the officer of a corporation in such
positions and perform such other duties and responsibilities as are reasonably
determined from time to time by the Company's Board of Directors (the "Board").
The Executive shall report to and be supervised by the Board. During the first
six months of the Employment Term (as defined below), the Executive shall be
based at the Company's executive offices for an average minimum of three working
days out of each workweek (which may be adjusted due to holidays or vacation).
Thereafter, the Executive shall be based at the Company's executive offices for
an average minimum of two working days out of each workweek computed on a
monthly basis. To the extent the Executive is traveling on Company business, the
days of such travel shall be counted as days based in the Company's executive
offices. For the remainder of each workweek, the Executive shall perform his
duties hereunder out of his home office, which shall be at a location in the
continental United States as selected by the Executive (the "Home Office"). The
Executive agrees to devote substantially all his attention and time during
normal business hours (regardless of where he may be) to the business and
affairs of the Company and to use his reasonable best efforts to perform
faithfully and efficiently the duties and responsibilities of his position and
to accomplish the goals and objectives of the Company as may be established by
the Board. Notwithstanding the foregoing, the Executive may engage in the
following activities (and shall be entitled to retain all economic benefits
thereof including fees paid in connection therewith) as long as they do not
interfere in any material respect with the performance of the Executive's duties
and responsibilities hereunder: (i) serve on corporate, civic, religious,
educational and/or charitable boards or committees, provided that the Executive
shall not serve on any board or committee of any corporation or other business
which competes with the Business (as defined in Section 9(a) below); (ii)
deliver lectures, fulfill speaking engagements or teach on a part-time basis at
educational institutions; and (iii) make investments in businesses or
enterprises and manage his personal investments; provided that with respect to
such activities Executive shall comply with any business conduct and ethics
policy applicable to employees of the Company. During the Employment Term the
Executive may not join the board of directors of any company or any committee
appointed by the board of directors of any company without the prior consent of
a majority of the Board, which consent may not be unreasonable withheld. The
Executive has provided the Company with a list of entities on whose boards he
serves and the Company agrees that he may continue to serve on these boards.
2. Term. The term of this Agreement shall commence on March 8, 2004 (the
"Commencement Date"), and shall terminate on March 31, 2006, unless extended or
earlier terminated in accordance with the terms of this Agreement (the
"Termination Date"). This Agreement shall renew automatically for successive
one-year periods unless either party notifies the other in writing at least 90
days before the Termination Date (as defined below), or any anniversary of the
Termination Date, as the case may be, that he or it chooses not to extend the
Employment Term. The period beginning on the Commencement Date and ending on the
Termination Date is herein referred to as the "Employment Term".
3. Compensation. As compensation for performing the services required by
this Agreement, and during the term of this Agreement, the Executive shall be
compensated as follows:
(a) Base Compensation. The Company shall pay to the Executive an
annual salary of $225,000 (the "Base Compensation"). The Base Compensation
shall be payable in equal installments pursuant to the Company's customary
payroll procedures in effect for its executive personnel at the time of
payment, but in no event less frequently than monthly, subject to
withholding for applicable federal, state, and local income and employment
related taxes.
(b) Cash Bonuses. In addition to the Base Compensation, the Executive
will be eligible to receive additional compensation in an amount equal to
122% of the Base Compensation (the "Cash Bonus"). The Cash Bonus will be
adjusted based on whether and to what extent the Company achieves or falls
short of certain operational and/or financial targets (the "Targets") set
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forth in a business plan adopted and approved by the Board and the
Executive. All Cash Bonuses shall be paid to the Executive by February 28
of the year following the year in which they were earned and shall be
subject to applicable withholding for federal, state and local income and
employment related taxes. The Executive shall be entitled to his Cash Bonus
with respect to 2004 as if he had been employed by the Company for the
entire year. With respect to 2006, the Executive shall be entitled to 25%
of the Cash Bonus that he would have earned had he been employed by the
Company for the entire year. In addition, with respect to 2004, the Cash
Bonus shall be divided into two parts: the first part, which shall equal
100% of the Base Compensation shall be earned as set forth in the second
sentence of this Section 3(b); the second part, which shall equal 22% of
the Base Compensation shall be earned if and only if the Company shall have
hired a new sales team by December 31, 2004. A new sales team shall consist
of a minimum of one new Vice President of Sales and six sales associates,
which shall include inside, outside and international sales representatives
and account managers unless the Board and the Executive mutually agree to a
smaller sales team.
(c) Stock Options. Subject to the approval of the Board and the
Company's stockholders, the Company shall grant Executive stock options
covering 255,000 shares of the Company's common stock, the vesting and
exercisability of which shall be set forth in a separate stock option
agreement, substantially in the form of Exhibit A hereto (the "Stock Option
Agreement").
4. Employee Benefits. During the Employment Term the Executive and his
eligible dependents shall be entitled to such benefits (including but not
limited to, the right to participate in any retirement plans (qualified and
non-qualified), pension, insurance, health, disability or other benefit plan or
program that has been or is hereafter adopted by the Company (or in which the
Company participates), as shall be determined by the Board from time to time;
provided, however, that the Executive shall always be entitled to such benefits
as are generally made available to the senior executives of the Company. The
Company shall, in accordance with standard Company policy and practices in
effect from time to time, reimburse the Executive for all reasonable business
expenses incurred by him in connection with the performance of his duties
hereunder, including, but not limited to, one round-trip coach ticket per week
between his Home Office and the Company's executive offices and shall provide
the Executive with an apartment or room at a within commuting distance from its
executive offices when the Executive is working from the Company's executive
office.
5. Vacation. The Executive shall be entitled to the normal and customary
amount of paid vacation provided to senior executive officers of the Company,
but in no event less than four weeks during each calendar year. (For this
purpose, 2004 shall be counted as a full year and 2006 shall be counted as a
partial year.) Upon any termination of this Agreement for any reason whatsoever,
any accrued and unused vacation shall be dealt with in accordance with Company
policy.
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6. Indemnification. The rights of the Executive to indemnification from the
Company for acts or omissions in connection with his employment by the Company
are set forth in the Indemnification Agreement, dated November 10, 2003, between
the Company and the Executive (the "Indemnification Agreement"). Until such time
as the Company's average market capitalization (i.e., the result obtained by
multiplying the closing price per share by the number of shares of Common Stock
issued and outstanding on such date) for any consecutive period consisting of 60
trading days (i.e., a day on which shares are traded on the American Stock
Echange) exceeds $40 million, the Company shall maintain a minimum of $3 million
of Directors and Officers liability insurance. At such time as the Company's
average market capitalization for any consecutive period consisting of 60
trading days exceeds $40 million, the Company shall increase the amount of
insurance to $5 million.
7. Termination and Termination Benefits.
(a) Termination by the Company.
(i) For Cause. Notwithstanding any provision contained
herein, the Company may terminate this Agreement at any time
during the Employment Term for "Cause". For purposes of this
subsection 7(a)(i), "Cause" shall mean(w) if the Company fails to
achieve a majority of the Targets by 30% or more in any calendar
year; (x) the willful failure by the Executive to substantially
perform his duties hereunder for any reason other than total or
partial incapacity due to physical or mental illness, (y) a
conviction of Executive of any crime (other than a routine
traffic violation) that constitutes a felony in the jurisdiction
in which the crime was committed or the conviction of Executive
of any act that constitutes moral turpitude or (z) Executive
having committed any act constituting fraud, theft or conversion
of property as determined by a court of competent jurisdiction or
by the reasonable judgment of a majority of the Board after a
good faith investigation. Termination pursuant to this subsection
7(a)(i) shall be effective immediately upon the delivery of
written notice thereof from the Company to the Executive
specifying the acts or omissions constituting the failure and
requesting that they be remedied; provided, however, that in the
case of a termination pursuant to clause (x) the Executive shall
have 15 days from the date of such notice to cure the failure
specified in such notice and termination shall occur immediately
upon the expiration of such 15-day cure period if the Executive
has not cured such failure in the good faith judgment of a
majority of the Board. In the event of a termination pursuant to
this subsection 7(a)(i), the Executive shall be entitled to
payment of his Base Compensation and the benefits pursuant to
Section 4 hereof up to the effective date of such termination.
(ii) Disability. If due to illness, physical or mental
disability, or other incapacity, the Executive shall fail, for a
total of any six consecutive months ("Disability"), to
substantially perform the principal duties required by this
Agreement as determined in good faith by a majority of the Board,
the Company may terminate this Agreement upon 30 days' written
notice to the Executive. In such event, the Executive shall be
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(A) paid his Base Compensation and Cash Bonus until the
Termination Date, and (B) provided with employee benefits
pursuant to Section 4 (other than transportation and hotel
accommodations), to the extent available, for the remainder of
the Employment Term; provided, however, that any compensation to
be paid to the Executive pursuant to this subsection 7(a)(ii)
shall be offset against any payments received by the Executive
pursuant to any policy of disability insurance the premiums of
which are paid for by the Company.
(iii) Without Cause. The Company may terminate the
Executive's employment hereunder at any time without Cause. If
the Company terminates the Executive's employment hereunder
without Cause, other than due to death or Disability, the
Executive shall be (i) paid the Base Compensation and the target
annual Cash Bonus to which he would have been entitled had the
Company not terminated this Agreement and (ii) provided with the
employee benefits pursuant to Section 4 (other than
transportation and hotel accommodations), to the extent
available, for a period ending on the later of (A) the one-year
anniversary of the Termination Date or (B) the date on which the
Employment Term would have terminated had the Company not
terminated this Agreement without Cause (the "Benefit Period") ;
provided, however, if the Executive obtains new employment and
such employment makes the Executive eligible for health and
welfare or long-term disability benefits which are equal to or
greater in scope then the benefits then being offered by the
Company, then the Company shall no longer be required to provide
such benefits to the Executive.
(b) Termination by the Executive. The Executive may terminate this
Agreement at any time upon ninety (90) days prior written notice to the
Company. Unless such termination is for Good Reason (as defined below), in
such event the Company's sole obligation to the Executive shall be to pay
the Executive the Base Compensation and the benefits described in Section 4
hereof, up to the date of such termination. In addition, the Executive
shall be entitled to receive a pro rata portion (computed on a per diem
basis) of the Cash Bonus he would have received had he not terminated this
Agreement. If the Executive terminates this Agreement for Good Reason, it
shall be treated as if the Company terminated this Agreement without Cause
and the provisions of Section 7(a)(iii) shall apply.
As used herein, "Good Reason" means and shall be deemed to exist if,
without the prior express written consent of the Executive, (a) the Company
breaches this Agreement in any material respect; (b) the Company fails to
obtain the full assumption of this Agreement by a successor; (c) the
Company purports to terminate the Executive's employment for Cause and such
purported termination of employment is not effected in accordance with the
requirements of this Agreement; (d) the Company employs another senior
executive and requests that the Executive report to such officer; (e) the
Company materially reduces the Executive's responsibilities; (f) the
Company reduces the Base Compensation without the Executive's prior
consent; or (g) the Company materially reduces the benefits to which the
executive is entitled to pursuant to Section 4 of this Agreement as of the
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date hereof, except if such reduction applies to all senior executives of
the Company; provided, however, that with respect to items (a) - (g) above,
within fifteen (15) days of written notice of termination by the Executive,
the Company has not cured, or commenced to cure, such failure or breach.
(c) Vesting of Stock Grants and Stock Options. In the event of any
termination of this Agreement, Executive's rights with regard to any stock
grants or stock options shall be as set forth in the respective agreement
containing the terms and conditions pertaining thereto. Notwithstanding the
foregoing, in the event that the Executive is terminated for reasons other
than for "Cause" or in the event the Executive terminates this Agreement
for "Good Reason," or in the event this Agreement is terminated by reason
of Executive's death, any stock options then held by the Executive shall
immediately vest in the Executive and shall remain exercisable for the
period specified in the grant agreement.
(d) Death Benefit. Notwithstanding any other provision of this
Agreement, this Agreement shall terminate on the date of the Executive's
death. In such event, any stock options granted to the Executive that have
previously vested or that would have vested before the end of the calendar
year in which his death occurs, shall immediately vest in the executive's
estate and shall remain exercisable for the period specified in the Stock
Option Agreement notwithstanding any provision therein to the contrary, and
the Base Compensation and Cash Bonus that would have been payable to the
Executive through the end of the calendar year in which his death occurs
shall be payable to his estate. Any benefits to which members of the
Executive's immediate family would have been entitled by reason of kinship
shall continue to be provided to them through the end of the calendar year
in which his death occurs.
8. Company Property. All advertising, promotional, sales, suppliers,
manufacturers and other materials or articles or information, including without
limitation data processing reports, customer lists, customer sales analyses,
invoices, product lists, price lists or information, samples, or any other
materials or data of any kind furnished to the Executive by the Company or
developed by the Executive on behalf of the Company or at the Company's
direction or for the Company's use or otherwise in connection with the
Executive's employment hereunder, are and shall remain the sole and confidential
property of the Company; if the Company requests the return of such materials at
any time during or at or after the termination of the Executive's employment,
the Executive shall immediately deliver the same to the Company.
9. Covenant Not To Compete.
(a) Covenants Against Competition. As of the date of this Employment
Agreement (i) the Company is engaged in the business of selling prepaid
products and services, providing electronic transaction processing for
prepaid products and services and selling or licensing an integrated
electronic point of sale activation system (the "Business"); (ii) the
Company's Business is conducted currently throughout the United States,
Canada and in certain countries in Europe and Asia and may be expanded to
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other locations; (iii) the Executive's employment with the Company will
have given him access to confidential information concerning the Company;
and (iv) the agreements and covenants contained in this Agreement are
essential to protect the business and goodwill of the Company. Accordingly,
the Executive covenants and agrees as follows:
(i) Non-Compete. Without the prior written consent of the Board,
the Executive shall not during the Restricted Period (as defined
below) within the Restricted Area (as defined below) (except in the
Executive's capacity as an officer of the Company or any of its
affiliates), (a) engage or participate in the Business; (b) enter the
employ of, or render any services (whether or not for a fee or other
compensation) to, any person engaged in the Business; or (c) acquire
an equity interest in any such person; provided, further, that during
the Restricted Period the Executive may own, directly or indirectly,
up to 5%, solely as a passive investment, of the securities of any
company traded on any national securities exchange or on the National
Association of Securities Dealers Automated Quotation System.
As used herein, "Restricted Period" shall mean the period
commencing on the Effective Date and ending on the first anniversary
of the Executive's termination of employment.
"Restricted Area" shall mean any place within the United States
and any other country in which the Company is then actively has an
ongoing Business relationship or is actively negotiating Business.
(ii) Confidential Information; Personal Relationships. The
Executive acknowledges that the Company has a legitimate and
continuing proprietary interest in the protection of its confidential
information and has invested substantial sums and will continue to
invest substantial sums to develop, maintain and protect confidential
information. The Executive agrees that, during and after the
Restricted Period, without the prior written consent of the Board, the
Executive shall keep secret and retain in strictest confidence, and
shall not knowingly use for the benefit of himself or others all
confidential matters relating to the Company's Business including,
without limitation, operational methods, marketing or development
plans or strategies, business acquisition plans, joint venture
proposals or plans, and new personnel acquisition plans, learned by
the Executive heretofore or hereafter (such information shall be
referred to herein collectively as "Confidential Information");
provided, that nothing in this Agreement shall prohibit the Executive
from disclosing or using any Confidential Information (A) in the
performance of his duties hereunder, (B) as required by applicable
law, (C) in connection with the enforcement of his rights under this
Agreement or any other agreement with the Company, or (D) in
connection with the defense or settlement of any claim, suit or action
brought or threatened against the Executive by or in the right of the
Company. Notwithstanding any provision contained herein to the
contrary, the term Confidential Information shall not be deemed to
include any general knowledge, skills or experience acquired by the
Executive or any knowledge or information known or available to the
public in general. Moreover, the Executive shall be permitted to
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retain copies of, or have access to, all such Confidential Information
relating to any disagreement, dispute or litigation (pending or
threatened) involving the Executive.
(iii) Employees of the Company and its Affiliates. During the
Restricted Period, without the prior written consent of the Board, the
Executive shall not, directly or indirectly, hire or solicit, or cause
others to hire or solicit, for employment by any person other than the
Company or any affiliate or successor thereof, any employee of, or
person employed within the two years preceding the Executive's hiring
or solicitation of such person by, the Company and its affiliates or
successors or encourage any such employee to leave his employment. For
this purpose, any person whose employment has been terminated
involuntarily by the Company shall be excluded from those persons
protected by this Section for the benefit of the Company.
(iv) Business Relationships. During the Restricted Period, the
Executive shall not, directly or indirectly, request or advise a
person that has a business relationship with the Company to curtail or
cancel such person's business relationship with the Company.
(b) Rights and Remedies Upon Breach. If the Executive breaches,
threatens to commit a breach of, any of the provisions contained in Section
9 of this Agreement (the "Restrictive Covenants"), the Company shall have
the following rights and remedies, each of which rights and remedies shall
be independent of the others and severally enforceable, and each of which
is in addition to, and not in lieu of, any other rights and remedies
available to the Company under law or in equity.
(i) Specific Performance. The right and remedy to have the
Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of
the Restrictive Covenants would cause irreparable injury to the
Company and that money damages would not provide an adequate remedy to
the Company.
(ii) Accounting. The right and remedy to require the Executive to
account for and pay over to the Company all compensation, profits,
monies, accruals, increments or other benefits derived or received by
the Executive as the result of any action constituting a breach of
Restrictive Covenants.
(c) Severability of Covenants. The Executive acknowledges and agrees
that the Restrictive Covenants are reasonable and valid in duration and
geographical scope and in all other respects. If any court determines that
any of the Restrictive Covenants, or any part thereof, is invalid or
unenforceable, the remainder of the Restrictive Covenants shall not thereby
be affected and shall be given full effect without regard to the invalid
portions. The provisions set forth in this Section 9 above shall be in
addition to any other provisions of the business conduct and ethics policy
applicable to employees of the Company and its subsidiaries during the term
of Executive's employment.
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(d) Saving Clause. If the period of time or the area specified in
subsection (a) above should be adjudged unreasonable in any proceeding,
then the period of time shall be reduced by such number of months or the
area shall be reduced by the elimination of such portion thereof or both so
that such restrictions may be enforced in such area and for such time as is
adjudged to be reasonable.
10. Executive's Representation and Warranties. Executive represents and
warrants that he has the full right and authority to enter into this Agreement
and fully perform his obligations hereunder, that he is not subject to any
non-competition agreement other than with the Company, and that his past,
present and anticipated future activities have not and will not infringe on the
proprietary rights of others. Executive further represents and warrants that he
is not obligated under any contract (including, but not limited to, licenses,
covenants or commitments of any nature) or other agreement or subject to any
judgment, decree or order of any court or administrative agency which would
conflict with his obligation to use his best efforts to perform his duties
hereunder or which would conflict with the Company's business and operations as
presently conducted or proposed to be conducted. The Executive has provided the
Company with an accurate and complete list of all boards of directors, boards of
trustees, boards of advisors and committees thereof of which he is a member as
of the date hereof. Neither the execution nor delivery of this Agreement, nor
the carrying on of the Company's business as officer and employee by Executive
will conflict with or result in a breach of the terms, conditions or provisions
of or constitute a default under any contract, covenant or instrument to which
Executive is currently a party.
11. Miscellaneous.
(a) Integration; Amendment. This Agreement, the Stock Option Agreement
and the Indemnity Agreement are the only agreements between the parties
hereto with respect to the matters set forth herein and supersede and
render of no force and effect all prior understandings and agreements
between the parties with respect to the matters set forth herein. No
amendments or additions to this Agreement shall be binding unless in
writing and signed by both parties. Notwithstanding the foregoing, nothing
in this Agreement shall prevent or limit the Executive's continuing or
future participation in any benefit, bonus, incentive or other plan or
program provided or maintained by the Company and for which the Executive
may qualify, nor shall anything herein limit or otherwise prejudice such
rights as the Executive may have under any other existing or future
agreements with the Company. Except as otherwise expressly provided for in
this Agreement, amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plans or programs of the Company at
or subsequent to the date of termination shall be payable in accordance
with such plans or programs.
(b) Severability. If any part of this Agreement is contrary to,
prohibited by, or deemed invalid under applicable law or regulations, such
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provision shall be inapplicable and deemed omitted to the extent so
contrary, prohibited, or invalid, but the remainder of this Agreement shall
not be invalid and shall be given full force and effect so far as possible.
(c) Waivers. The failure or delay of any party at any time to require
performance by the other party of any provision of this Agreement, even if
known, shall not affect the right of such party to require performance of
that provision or to exercise any right, power, or remedy hereunder, and
any waiver by any party of any breach of any provision of this Agreement
shall not be construed as a waiver of any continuing or succeeding breach
of such provision, a waiver of the provision itself, or a waiver of any
right, power, or remedy under this Agreement. No notice to or demand on any
party in any case shall, of itself, entitle such party to other or further
notice or demand in similar or other circumstances.
(d) Power and Authority. The Company represents and warrants to the
Executive that it has the requisite corporate power to enter into this
Agreement and perform the terms hereof; that the execution, delivery and
performance of this Agreement by it has been duly authorized by all
appropriate corporate action; and that this Agreement represents the valid
and legally binding obligation of the Company and is enforceable against it
in accordance with its terms.
(e) Burden and Benefit; Survival. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
executors, personal and legal representatives, successors and assigns. In
addition to, and not in limitation of, anything contained in this
Agreement, it is expressly understood and agreed that the Company's
obligations during the Benefit Period as set forth in Section 7(a)(iii) and
as set forth in Section 7(d) shall survive any termination of this
Agreement.
(f) Governing Law; Headings. This Agreement and its construction,
performance, and enforceability shall be governed by, and construed in
accordance with, the laws of the State of Utah. Headings and titles herein
are included solely for convenience and shall not affect, or be used in
connection with, the interpretation of this Agreement.
(g) Jurisdiction. Except as otherwise provided for herein, each of the
parties (a) submits to the exclusive jurisdiction of any state court
sitting in Utah County, Utah or federal court sitting in Utah in any action
or proceeding arising out of or relating to this Agreement, (b) agrees that
all claims in respect of the action or proceeding may be heard and
determined in any such court and (c) agrees not to bring any action or
proceeding arising out of or relating to this Agreement in any other court.
Each of the parties waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any bond,
surety or other security that might be required of any other party with
respect thereto. Any party may make service on another party by sending or
delivering a copy of the process to the party to be served at the address
and in the manner provided for giving of notices in Section 11(i). Nothing
in this Section, however, shall affect the right of any party to serve
legal process in any other manner permitted by law.
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(h) Notices. All notices called for under this Agreement shall be in
writing and shall be deemed given upon receipt if delivered personally or
by confirmed facsimile transmission and followed promptly by mail, or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at their respective addresses (or at such other
address for a party as shall be specified by like notice; provided that
notices of a change of address shall be effective only upon receipt
thereof) as set forth in the preamble to this Agreement or to any other
address or addressee as any party entitled to receive notice under this
Agreement shall designate, from time to time, to others in the manner
provided in this subsection 11(i) for the service of notices.
Any notice delivered to the party hereto to whom it is addressed shall
be deemed to have been given and received on the day it was received;
provided, however, that if such day is not a business day then the notice
shall be deemed to have been given and received on the business day next
following such day. Any notice sent by facsimile transmission shall be
deemed to have been given and received on the business day next following
the day of transmission.
(i) Number of Days. In computing the number of days for purposes
of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any
time period falls on a Saturday, Sunday or holiday on which federal
banks are or may elect to be closed, then the final day shall be
deemed to be the next day which is not a Saturday, Sunday or such
holiday.
(j) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the Parties and no presumption
or burden of proof shall arise favoring or disfavoring any Party by
virtue of the authorship of any of the provisions of this Agreement.
Any reference to any federal, state, local, or foreign statute or law
shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word
"including" shall mean including without limitation. Nothing in the
Disclosure Schedule shall be deemed adequate to disclose an exception
to a representation or warranty made herein unless the Disclosure
Schedule identifies the exception with particularity and describes the
relevant facts in detail.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
Q COMM INTERNATIONAL, INC.
By: -----------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
------------------------------------------
XXXXX XXXXXX
