EXHIBIT 10.27
AGREEMENT
AGREEMENT (this "Agreement") dated April 4, 2000 by and among IFS
International Holdings, Inc. ("IFS") a Delaware Corporation with principal
executive office at 300 Jordan Road, Troy, New York 12180; FRANK PASCUITO
("Pascuito") an individual whose address is 1 Feather Foil Road, Ballston Spa,
New York 12020; and Go2Pay.Com, Inc. ("Go2Pay") a Delaware corporation with
principal executive office located at 300 Jordan Road, Troy, New York 12180.
RECITALS
A. Pascuito is currently employed by IFS and has devoted his full time
and efforts since January 1, 2000 and a substantial portion of his time and
efforts prior to January 1,2000 to the creation of an electronic payment
transactions facility to process transactions for customers in a service
bureau environment (the "Processing Business").
B. Pascuito has, with consent of IFS, caused Go2Pay to be formed as a
Delaware Corporation, for the purpose of serving as the corporate vehicle
to conduct the Processing Business. No shares of the common capital stock
of Go2Pay have been issued, and Go2Pay has no assets or liabilities as of
the date of this Agreement.
C. Due to financial and operational constraints, IFS believes that
Go2pay may offer IFS the opportunity of sharing in the benefits of a
domestic processing center without having to divert substantial amounts of
capital and resources to its establishment and operation. In addition,
Pascuito's' unique position with the local Capitol area financial community
offers an excellent opportunity to raise significant capital for the
processing venture. IFS will share in the success of any such venture based
on its minority ownership position in Go2pay, and its ongoing relationship
with Go2pay as an IFS customer. Thus the parties mutually agree that
majority ownership in Go2Pay shall be held by Pascuito, with IFS to retain
a minority interest, that IFS shall continue to fund Go2Pay's development
of its Processing Business, and that Go2Pay shall repay certain funds
advanced both before and after the date of this Agreement.
D. The parties further desire that Pascuito shall terminate his
existing employment agreement with IFS (the "Employment Agreement"), and
shall receive comparable pay from Go2Pay for a specific time period (such
compensation to be funded by advances from IFS to Go2Pay) all as more
particularly set forth herein.
NOW THEREFORE, in consideration of mutual covenants and promises
contained herein, and for valuable consideration, the receipt and sufficiency
which are hereby mutually acknowledged, the parties to this Agreement (each
individually a "party" and collectively the "parties") agree as follows:
1. Creation of Independent Processing Center. As stated in the
recitals, Pascuito has spent a substantial amount of time in efforts to
create and develop the Processing Business. Thus the parties have agreed
that Pascuito may pursue this line of business via creation of the Go2Pay
corporate entity, with IFS to retain a share in the ownership of Go2Pay,
and with Pascuito to retain the controlling share interest. IFS has agreed
to provide Go2Pay and Pascuito with certain assistance in the continued
development of the Processing Business, and has further agreed to relieve
Pascuito of his other corporate responsibilities, so as to allow Pascuito
to concentrate on development of the Processing Business.
2. Issuance of Stock. Upon signing of this Agreement, Go2Pay shall
issue five million six hundred thousand (5.6 million) shares of its Common
capital stock to Pascuito and shall issue two million, four hundred
thousand (2.4 million) shares of its Common capital stock to IFS, such that
Pascuito and IFS own the issued and outstanding shares of Go2Pay in a ratio
of seventy percent (70%) Pascuito - thirty percent (30%) IFS immediately
after the closing. All of the shares shall be issued as fully paid and
nonassessable shares. The parties acknowledge that Go2Pay may be required
to issue additional equity shares, options to purchase equity shares and/or
securities convertible into its equity shares in connection with raising
funds to further develop the Processing Business. Pascuito and Go2Pay are
free to do so, so long as (i) such shares are issued for full and fair
consideration in money or money's worth, and (ii) Pascuito on the one hand,
and IFS on the other, continue to hold Go2Pay's equity shares between them
in the ratio of 70%-Pascuito and 30%-IFS.
The consideration for the issuance of the thirty percent (30%) share
ownership to IFS shall be the licensing of certain IFS software as
described in Section 3 hereof.
The consideration for the shares to be issued to Pascuito shall include his
agreement to terminate his existing Employment Agreement with IFS, his
services rendered in connection with the creation of the Processing
Business, and the other covenants made by Pascuito pursuant to this
Agreement.
3. Software Licensing. IFS shall grant Go2Pay a non-exclusive
seventy-five (75) year license to certain selected modules of IFS
proprietary TPII software (the "Software") for the purposes of processing
electronic payment transactions in connection with Go2Pay's Processing
Business. Neither Go2Pay nor Pascuito may resell, sublicense or otherwise
transfer the Software to its customers or to other third parties. The
specific terms and conditions of the licensing of Software are to be set
forth in a separate software licensing agreement to be entered into between
IFS as licensor and Go2Pay as licensee, in substantially the form of
Exhibit "A" attached to this Agreement.
4. Director Representation. So long as IFS owns at least fifty per
cent (50%) of the original Go2pay shares granted under this agreement, IFS
shall be entitled to have at least one representative nominated and elected
as a director on the Go2Pay board of directors.
5. Use of Facilities; Rentals.
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A. IFS agrees to allow Go2Pay to use portions of its headquarters
facilities at 300 Jordan Road, Troy, New York in connection with the
development, marketing and operation of the Processing Business. The
parties will identify the space to be occupied by Go2Pay, together
with Go2Pay's allocable portion of the common areas, such as reception
area, conference rooms, rest rooms, driveways, parking facilities, and
the like, such area to be identified on Exhibit "B" attached hereto
and made a part hereof. The parties may hereafter enlarge, reduce or
otherwise modify the space to be occupied by Go2Pay, and shall
thereupon revise or replace Exhibit "B" with a new document, to be
signed or initialed by representatives of IFS and Go2Pay, stating the
new square footage allocable to Go2Pay, and the effective date of the
change.
B. As rental for the facilities provided by IFS, Go2Pay shall pay
its proportionate share of all costs of owning and operating the
Jordan Road facility, including mortgage (debt service) payments, real
estate taxes (including property taxes, school taxes, water, sewer and
similar charges), insurance on the structures (both casualty and
liability), electric and other utilities, maintenance, upkeep and
janitorial, together with the fully loaded cost of the receptionist.
Go2Pay's "proportionate share" shall be a fraction, the numerator of
which is the square footage set forth on Exhibit "B", and the
denominator of which is the total square footage of usable space in
the building. Any "build-outs, sinage or renovations" of the IFS
building done to accommodate Go2pay needs are subject to the approval
of IFS International. Rental costs shall be accumulated but not
payable until the earlier of (i) eleven (11) months have elapsed since
the date of this Agreement, or (ii) Go2Pay shall have raised
significant external financing, as more particularly set forth in
paragraph 7C hereof. At such time, Go2Pay shall pay IFS for all back
rents accumulated. Thereafter, Go2Pay shall pay IFS a rental of
fifteen dollars per square foot per month ($15.00/sq ft/month) for the
remainder of the current calendar year, and IFS shall provide Go2Pay
with an accounting or reconciliation of estimated payments vs. actual
costs incurred for the period between that rentals become payable and
year-end, within 90 days after year-end. If actual costs exceed the
estimated rentals paid, then Go2Pay shall pay IFS the difference
within ten (10) days after the receipt of the accounting. If estimated
payments exceed actual costs, then IFS shall issue Go2Pay a credit for
such amount against future rentals. Once the accounting is given,
future estimated rentals shall be based upon costs shown in the
accounting, and annual reconciliation shall be given thereafter.
C. IFS shall be obligated to provide Go2Pay with space in its
facility until at least January 1, 2005. Thereafter, the rental of
space shall be on an at will basis, with either IFS of Go2Pay having
the right or option to discontinue the rental arrangement upon sixty
(60) day's notice in writing to the other. Nothing set forth in
subsection 5(B) concerning annual reconciliation shall be construed as
constituting an agreement on the part of IFS to provide use of its
facilities for a longer period than set forth in this subparagraph
5(C).
6. In-Kind Services. IFS agrees to provide Go2Pay with access to and
the use of IFS employees for the purpose of providing Go2Pay with certain
services commonly provided by IFS to its customers, such as functional
specification, installation, training, certification, software creation,
hardware configuration, software support, transaction processing and other
operational support. IFS shall provide such services to Go2Pay upon
request, provided however, that IFS shall only be responsible to provide
Go2Pay with such services to extent that IFS has capacity available, and
nothing herein shall be deemed to require IFS to provide availability of
any specific personnel, where to do so would impair IFS' ability to honor
its contractual commitments to other customers. IFS shall charge Go2Pay for
such services based upon seventy percent of IFS' standard list prices. IFS
will invoice Go2Pay for such services on a monthly or other periodic basis
as appropriate, but Go2Pay shall not be obligated to begin repaying IFS for
such services until the earlier of (i) eleven (11) months from the date of
this Agreement, or (ii) such date as Go2Pay receives funding from one or
more private placements, venture capital placements, initial public
offerings or other funding sources.
7. Advancement and Repayment of Certain Expenses.
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A. Prior Expenses. The parties mutually acknowledge that it is
not possible to accurately identify each item of expense incurred by
IFS in creating the Processing Business before the date of this
Agreement. However, the parties mutually agree that their best
estimate for costs incurred by IFS in creating Processing Business
prior to the date of this Agreement is One hundred and fifty thousand
dollars ($150,000). Such amount, together with all advances made in
the future under paragraph 9C, shall be reimbursed by Go2Pay to IFS in
accordance with the procedures set forth for repayment of future
advances, as set forth in paragraph 7D.
B. Future Advances for Expenses. IFS agrees to advance funds to
Go2Pay to cover expenses incurred in the continuing development of the
Processing Business. Such expenses shall include:
(i) travel and other out-of-pocket expenses incurred by
Pascuito amounts not to exceed $2,500 per month, subject however
to approval of IFS executive officer as to any single item
costing in excess of $500; and
(ii) such other expenses as IFS may agree to pay from time
to time, for the account of Go2Pay in connection with the
continued development of the Processing Business or otherwise.
IFS agrees to provide a monthly or other periodic accounting to
Go2Pay for all amounts advanced for the account of Go2Pay. Go2Pay
shall repay such amounts in accordance with the payment
procedures set forth in subparagraph (C) below.
C. Commencement of Repayment Obligation. Go2Pay shall begin to
repay amounts advanced by IFS at the earlier of (i) eleven (11) months
from the date of this Agreement, or (ii) such date as Go2Pay receives
funding from one or more private placements, venture capital
placements, initial public offerings or other funding sources. If
repayment does not commence within 11 months of this agreement,
interest will accrue at the rate of ten percent per annum on the
accrued amount owed IFS plus any additional Go2pay obligations to IFS.
D. Repayment Procedures. The following procedures shall apply
once Go2Pay's repayment obligations are triggered under subparagraph
(C) above:
i. The parties mutually anticipate that funds for the
repayment of expenses advanced pursuant to this paragraph 5 shall
come from capital funds raised by Go2Pay. Accordingly, Go2Pay
agrees that thirty percent (30%) of each capital infusion raised
by Go2Pay from any source other than operating revenues
(regardless of whether such capital infusion is in the form of an
equity investment, loan, convertible or hybrid security or
otherwise) shall be utilized to repay IFS for amounts advanced
pursuant to this Agreement. Such amounts shall be paid to IFS
within ten (10) days after Go2Pay=s receipt of such funds. All
payments made by Go2Pay to IFS shall allocated first to the
oldest category of expenses, thereafter to the next oldest and so
forth.
ii. If the entire amount of expenses advanced under this
Agreement is not repaid within eleven (11) months after the date
of this Agreement, then Go2Pay agrees to pay thirty percent (30%)
of its gross profits from operating revenues to the repayment of
such advances. Such payments shall be made on a quarterly basis,
with Go2Pay to provide copies of income statements setting forth
the amount of revenue and gross profits. The term "gross profits"
shall mean revenues less direct costs as such term is commonly
understood, and shall be computed in accordance with generally
accepted accounting principles, except that revenues shall be
determined on a cash basis, rather than on the accrual basis.
iii. Notwithstanding any of the foregoing, if the total
amount of all advances is not repaid on or before eleven (11)
months after the date of this Agreement, IFS may, at its sole
option, accelerate payment of the remaining balance by written
notice to Go2Pay, in which case Go2Pay shall pay the remaining
balance within ten (10) days after the notice is sent.
8. Modification of Employment Agreement.
A. In consideration of the other provisions contained in this
Agreement, IFS and Pascuito hereby mutually agree to terminate the
existing Pascuito Employment Agreement, effective as of the date of
signing of this Agreement. IFS agrees to release Pascuito from his
obligations to provide executive services for the benefit of IFS, but
IFS nevertheless agrees to continue to compensate Pascuito in
accordance with his current employment agreement for a period from the
date of this Agreement until the earlier of (i) eleven (11) months
from the date of this Agreement, or (ii) such time as Go2Pay raises at
least $1 million, in the manner set forth in subparagraph 7C above.
B. IFS does hereby further acknowledge that it has no claims
against Pascuito with respect to any alleged breach or nonperformance
of the Employment Agreement prior to the date hereof, and Pascuito
hereby acknowledges that he has no claims against IFS, or any of its
subsidiaries or affiliates with respect to any breach or
nonperformance of its or their obligations under the Employment
Agreement prior to the date hereof.
9. Maintenance of Software & Other Services.
A. Initial Maintenance Period. IFS agrees to maintain the
Software licensed to Go2pay on the terms and conditions set forth in
the standard IFS software maintenance agreement, a copy of which is
attached to this Agreement as Exhibit "C" (the "Maintenance
Agreement").
B. Subsequent Maintenance Services. Thereafter, IFS shall
continue to maintain the Software in accordance with the terms set
forth in Exhibit "C", but Go2Pay shall pay for such maintenance
services at the rate of fifteen percent (15%) of the amount then being
charged by IFS for license fees for software packages substantially
equivalent to those licensed to Go2Pay. The annual fifteen percent
(15%) maintenance fee shall be due and payable at in advance, as
provided in the standard maintenance agreement.
C. Other Services. All other services provided by IFS to Go2Pay
with respect to the licensed Software (such as, but without
limitation, custom programming services) will be based upon seventy
percent of IFS' standard list prices, unless otherwise negotiated
between IFS and Go2Pay.
10. Referral Fees. If IFS refers any processing business to Go2Pay,
IFS shall receive a fee equal to two percent (2%) of all net revenues (Net
revenues defined as Gross revenues minus the cost of goods sold, i.e.,
processing fees paid to 3rd parties, commissions, and other direct costs of
the sale) realized by Go2Pay from such customer and its affiliates.
Likewise, if Go2Pay refers any business to IFS, Go2Pay shall receive a fee
equal to two percent (2%) of all license fees realized by IFS from such
customer and its affiliates. Both IFS and Go2Pay agree to make such
referrals by means of written communication, and the receiving party agrees
to confirm the referral (and its obligation to pay the 2% fee) in writing
upon request.
11. No Authority. Pascuito acknowledges and agrees that, after the
date of this Agreement, and regardless of the fact that he may continue to
receive his salary for a period of time hereafter, he is no longer
authorized to sign on behalf of IFS or its subsidiaries or other
affiliates, may not make commitments on their behalf, and will not hold
himself out as an officer or employee of IFS. Pascuito further agrees that
he will not allow any other Go2Pay employees or representatives to incur
any obligation or liability on behalf of IFS, its subsidiaries and
affiliates. Pascuito agrees to indemnify and hold IFS and its subsidiaries
and affiliates harmless from any and all liabilities and costs they may
incur as a result of any breach of this provision.
12. Releases.
A. By IFS. IFS, on its own behalf and on behalf of its
subsidiaries and corporate affiliates does hereby REMISE, RELEASE AND
FOREVER DISCHARGE Pascuito, and his heirs, successors and assigns from
any and all obligations and claims whatsoever, arising at any time
prior to the signing of this Agreement except for obligations arising
under (i) this Agreement, (ii) the Software License Agreement, or
(iii) the Maintenance Agreement.
B. By Pascuito. Pascuito, for himself, and his heirs, successors
and assigns, does hereby REMISE, RELEASE AND FOREVER DISCHARGE IFS,
its subsidiaries and affiliates, and their respective officers and
directors, from any and all obligations and claims arising prior to
the date of this Agreement, excepting only obligations arising under
(i) this Agreement, (ii) the Software License Agreement, (iii) the
Maintenance Agreement and (iv) obligations relating to Pascuito's
continuing stock ownership in IFS and continuing ownership of certain
stock options, all as set forth in paragraph 13 below.
13. Stock Ownership; Stock Options.
A. Stock Ownership. Pascuito shall continue to own, without
change or modification, all of the standing shares of common capital
stock in IFS that he now owns. Nothing contained in this Agreement
shall be deemed as negating or limiting any rights Pascuito may have
as a stockholder of IFS, which arise after the date of this Agreement.
Pascuito confirms and acknowledges that he has no existing claims
against IFS or its officers and directors in his capacity as a
stockholder, and that the release provisions of subparagraph 9(B)
above are intended to release all potential claims arising before the
date of this Agreement.
B. Stock Options. Pascuito owns options covering a significant
number of shares of IFS common stock and shall continue to hold such
options after the date of this Agreement. The terms and conditions
upon which such options are granted shall not be changed by the making
of this Agreement. Pascuito shall not be deemed to have suffered
termination of his employment with IFS, solely for the purposes of
determining vesting under the existing IFS stock option plans.
14. 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) 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 (ii)
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.
15. Interpretation and Miscellaneous.
A. 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:
i. Organization, Power and Authority. Such party has all
requisite corporate or other power and authority to enter into
this Agreement.
ii. 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).
iii. 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.
B. Preparation of Agreement; Costs and Expenses. 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.
C. 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.
D. 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.
E. 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.
F. 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.
G. 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.
H. 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.
I. Parties in Interest; No Third Party Beneficiaries. 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.
J. 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.
K. 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.
L. 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.
M. Recovery of Fees and Costs. If any party institutes or should
the parties otherwise become involved in any legal proceeding based
upon or arising out of this Agreement or for damages by reason of any
alleged breach of this Agreement, or for a declaration of rights in
connection herewith, or for any other relief, in connection herewith,
the "Prevailing party" (as such term is defined below) in any such
proceeding shall be entitled to receive from the non-prevailing party,
all fees, disbursements, costs and expenses of enforcing any right of
the prevailing party (collectively, "fees and costs"), including
without limitation, (1) reasonable attorneys' fees and costs , (2)
witness fees and costs (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. Costs and expenses shall be
recoverable with respect to services rendered in connections with (A)
all preparation and discovery phases, (B) the trial or hearing, and
(C) post-hearing proceedings including, without limitation,
proceedings to convert the arbitration award into a judgment,
garnishment, levy, debtor and third party examinations, and other
post-judgment proceedings. Any judgment or order entered in such
action shall contain a specific provision providing for the recovery
of attorney the aforesaid fees and costs, 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 or arbitration panel hearing
the dispute (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).
N. Arbitration.
i. Jurisdiction. The parties agree that all controversies,
claims and disputes 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 term
"Controversies" shall include all questions relating to the
breach of any obligation, warranty, promise, right or condition
hereunder, and any question as to whether the right to arbitrate
a certain dispute exists.
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. Reasoned Decision. The parties hereby request the
Arbitrator to prepare a written decision which sets forth the
basis of the Arbitrator's decision.
iv. 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.
WHEREFORE, THE PARTIES HERETO HAVE EXECUTED THIS Agreement in the City of Troy,
State of New York as of the date first set forth above.
IFS INTERNATIONAL HOLDINGS, INC.
A Delaware Corporation
By ___________________________________
David L. Hodge
President & CEO
Go2Pay.Com, INC.
By ___________________________________
Frank Pascuito
President & CEO
EXECUTIVE:
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Frank Pascuito
