Exhibit 10.1
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
This Agreement ("Agreement") is made as of December 16, 2002 by and
between Xxxxxx Interactive Inc. ("Xxxxxx"), a Delaware corporation with offices
at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, and Xxxxxx X. Black ("Black"),
an individual with an address of 0000 X. Xxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxx 00000.
WHEREAS, Black has been and continues to be employed by Xxxxxx as its
Chairman and Chief Executive Officer, and
WHEREAS, Black and Xxxxxx entered into a Confidentiality and
Non-Competition Agreement dated as of September 1, 1999 (the "Non-Compete
Agreement"), and
WHEREAS, the parties desire to replace the Non-Compete Agreement and to
set forth in writing their mutual agreements regarding the continued employment
of Black,
NOW THEREFORE, in consideration of the mutual promises and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
"Base Salary" means $300,000 per annum, or such higher base salary as
may hereafter be approved by the Board of Directors.
"Bonus" shall mean non-salary, discretionary cash compensation, whether
paid under a performance-based bonus plan or otherwise.
"Cause" means Black's: (a) refusal to perform, failure to perform, or
misconduct in the performance of, the duties set forth in Section 3 hereof
provided that such refusal, failure, or misconduct is material and has continued
after Xxxxxx has given Black fifteen days written notice specifying the same in
reasonable detail, and further provided that failure to perform by reason of
Disability shall not be Cause, (b) overt and willful disobedience of lawful
orders or directives issued by the Board of Directors of Xxxxxx that are within
the scope of Black's duties to Xxxxxx, provided that such overt and willful
disobedience has continued after Xxxxxx has given Black fifteen days' written
notice specifying the same in reasonable detail, (c) conviction or of commission
of any felony, whether or not related to performance of duties under this
Agreement, (d) commission of any other illegal act if committed in connection
with the performance of duties for Xxxxxx if such act could reasonably tend to
bring Xxxxxx or Black into disrepute in the community, (e) breach of the
material terms of this Agreement provided, however, in the case of any breach
that is curable in all material respects, such breach has continued uncured
after Xxxxxx has given Black fifteen days' written notice specifying the same in
reasonable detail, and/or (f) material violation of Xxxxxx'x written rules,
regulations or policies provided that such violation has continued after Xxxxxx
has given Black fifteen days written notice specifying the same in reasonable
detail.
"Change in Control" means the occurrence of any of the following
events:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of Xxxxxx (not including in the securities
beneficially owned by such Person any securities acquired directly from
Xxxxxx or its Affiliates) representing 50% or more of the combined
voting power of Xxxxxx'x then outstanding securities; or
(ii) the following individuals cease for any reason to
constitute a majority of the number of directors then serving as
directors of Xxxxxx: individuals who, on the date hereof, constitute
the Board of
Directors of Xxxxxx and any new director (other than a director whose
initial assumption of office is in connection with the settlement of an
actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of Xxxxxx)
whose appointment or election by the Board of Directors of Xxxxxx or
nomination for election by Xxxxxx'x stockholders was approved or
recommended by a vote of at least a majority of the directors then
still in office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously so
approved or recommended; or
(iii) there is consummated a merger or consolidation of Xxxxxx
or any direct or indirect subsidiary of Xxxxxx with any other
corporation or entity, other than (A) a merger or consolidation which
would result in the voting securities of Xxxxxx outstanding immediately
prior to such merger or consolidation continuing to represent (either
by remaining outstanding or by being converted into voting securities
of the surviving entity or any Parent thereof), in combination with the
ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of Xxxxxx or any subsidiary of Xxxxxx, at least
50% of the combined voting power of the securities of Xxxxxx, such
surviving entity or any Parent thereof outstanding immediately after
such merger or consolidation or (B) a merger or consolidation effected
solely to implement a recapitalization of Xxxxxx (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of Xxxxxx (not including in the
securities beneficially owned by such Person any securities acquired
directly from Xxxxxx or its Affiliates) representing 50% or more of the
combined voting power of Xxxxxx'x then outstanding securities; or
(iv) the stockholders of Xxxxxx approve a plan of complete
liquidation or dissolution of Xxxxxx, or there is consummated a sale or
disposition by Xxxxxx or any of its subsidiaries of any assets which
individually or as part of a series of related transactions constitute
all or substantially all of Xxxxxx'x consolidated assets, other than
any such sale or disposition to an entity at least 50% of the combined
voting power of the voting securities of which stockholders of Xxxxxx
are Beneficial Owners in substantially the same proportions as their
Beneficial Ownership of the voting securities of Xxxxxx immediately
prior to such sale or disposition.
As used herein, "Affiliate" shall have the meaning set forth in Rule
12b-2 promulgated under Section 12 of the Exchange Act; "Beneficial Owner" shall
have the meaning set forth in Rule 13d-3 under the Exchange Act; "Exchange Act"
shall mean the Securities Exchange Act of 1934, as amended from time to time;
"Parent" shall mean any entity that becomes the Beneficial Owner of at least 80%
of the voting power of the outstanding voting securities of Xxxxxx or of an
entity that survives any merger or consolidation of Xxxxxx or any direct or
indirect subsidiary of Xxxxxx; and "Person" shall have the meaning given in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and
14(d) thereof, except that such term shall not include Xxxxxx or any of its
subsidiaries, a trustee or other fiduciary holding securities under an employee
benefit plan of Xxxxxx or any of its Affiliates, an underwriter temporarily
holding securities pursuant to an offering of such securities, or a corporation
or entity owned, directly or indirectly, by the stockholders of Xxxxxx in
substantially the same proportions as their ownership of stock of Xxxxxx.
"Confidential Information" means any and all information and material
proprietary to Xxxxxx or not generally known or available to the public in which
Xxxxxx has any interest or rights now or in the future, including without
limitation Xxxxxx'x business strategies, client lists, supplier lists, partners,
agreement terms, pricing, databases, products, designs, processes, systems,
methods; trade secrets, know-how, data, technical plans, drawings, information,
inventions, formulas, technology and anything else that might be construed as
proprietary or confidential in nature. Confidential Information shall not
include information and material (i) publicly available through no action by
Black, (ii) released by Xxxxxx with a written waiver of confidentiality, (iii)
lawfully obtained from third parties, or (iv) previously known or developed by
third parties independently of Xxxxxx and Black provided that such knowledge or
development can be independently substantiated.
"Disability" shall mean a disability that would, after the passage of
any applicable waiting period, entitle Black to coverage under Xxxxxx'x long
term disability insurance policies covering executive employees ("Disability
Policies").
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"Good Reason" means: (a) material breach of Xxxxxx'x obligations
hereunder provided that such breach continues after Black has given Xxxxxx
fifteen days written notice specifying the same in reasonable detail, or (b)
Xxxxxx'x continued assignment to Black of substantial duties that are
inconsistent with those described in Section 3 hereof after fifteen days written
notice of objection by Black specifying the same in reasonable detail.
"Termination Date" means (a) the earlier of (i) December 31, 2003, (ii)
the date of Black's death, and (iii) the date on which Black's employment is
terminated under Section 7(c), or (b) a later date, if any, to which such date
is extended by mutual agreement of the parties.
2. Employment. Xxxxxx shall employ Black, and Black accepts employment
from Xxxxxx, as Chairman and Chief Executive Officer of Xxxxxx.
3. Duties.
(a) Through and including the Termination Date, Black shall perform
such duties, consistent with those of his office, as may be reasonably requested
from time to time by the Board of Directors. Among other duties and as so
requested by the Board of Directors, Black's primary focus and efforts shall be
(i) to act as spokesperson for Xxxxxx in connection with, meet with, and
otherwise assist Xxxxxx in its dealings with, the investment community, market
research industry organizations, and potential strategic partners, (ii) to
assist Xxxxxx with its relationships with major clients and potential clients,
(iii) to assist Xxxxxx in achieving conversion of existing clients from
traditional to internet research methodologies, and (iv) to assist Xxxxxx with
continued development and implementation of its research capabilities and
methodologies as well as other strategic matters. In connection therewith, Black
shall cooperate and coordinate with the executive officers of Xxxxxx including
without limitation the President and Chief Operating Officer and the Group
Presidents. Black shall report only to the Board of Directors (or a duly
authorized committee thereof). Black acknowledges that the Board of Directors
reserves the right in its sole discretion to modify Black's title to any one or
more of Chief Executive Officer, Chairman, Executive Chairman, or Chairman
Emeritus, with a corresponding adjustment of his duties and efforts consistent
with his changed office, provided, that it shall not be deemed a violation of
this Agreement if, in connection with or after a Change in Control, the Board of
Directors (or its successor following a Change in Control) modifies (or subject
to Section 7(b), eliminates) Black's title, duties, or efforts so long as after
any such modification any ongoing title or office is consistent with the status
of a Chairman Emeritus and his duties and efforts, if any, are consistent with
his changed title and office. Subject at all times to the authority and
direction of the Board of Directors, Black shall have such authority as is
reasonably necessary to carry out his duties hereunder.
(b) Until the Termination Date, Black shall assist the Board of
Directors in developing and implementing a senior management succession plan and
other transition issues.
(c) Until the Termination Date, Black agrees to devote the time and
effort reasonably necessary to perform his duties. Black's principal office
shall remain in the Rochester, New York metropolitan area, although the parties
acknowledge that Black will be expected to undertake a reasonable amount of
travel in furtherance of the duties described in Section 3(a).
(d) Until and following the Termination Date, Black will act and
communicate in a manner consistent with maintenance of the good will and
positive internal and public perception of Xxxxxx.
4. Board of Directors.
(a) Black shall continue as a member of the Board of Directors of
Xxxxxx until the earliest of (i) the expiration of his elected term(s) of office
as a director, (ii) his resignation as a director, or (iii) his removal as a
director pursuant to Delaware law and the Certificate of Incorporation and
Bylaws of Xxxxxx.
(b) During the term of this Agreement and for so long as he is
receiving payments under Section 5(a)(iii), Black shall not be entitled to
compensation for services as a director applicable only to non-employee
directors of Xxxxxx.
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5. Payment and Provision of Benefits to Black. Subject to and in
consideration of Black's compliance with this Agreement, and in lieu of any and
all other compensation and benefits whether pursuant to agreement, company
policy or otherwise (except as otherwise required by law):
(a) Xxxxxx shall provide to Black:
(i) his Base Salary through and including the Termination
Date, payable in monthly installments on the last business day of each
calendar month,
(ii) Bonus under the existing bonus programs applicable to
Black for the current fiscal year, and any other programs approved by
the Compensation Committee of Xxxxxx'x Board of Directors applicable to
executive employees, pro rated for the period through and including the
Termination Date,
(iii) following the Termination Date (unless Black's
employment shall have been validly terminated under Section 7(c)),
payments in consideration of his continuing obligations under Sections
3(d), 9, and 11 hereof equal to two times his Base Salary payable in
twenty-four equal monthly installments commencing on the first day of
the first month following the Termination Date,
(iv) health and dental insurance benefits comparable to those
then provided to other executive employees of Xxxxxx, subject to the
same co-pay, deductibles, and the like applicable to such executive
employees, through and including the Termination Date,
(v) following the Termination Date (unless Black's employment
shall have been validly terminated under Section 7(c)), coverage by
Xxxxxx'x health and dental insurance plans, or if such coverage is not
available, reimbursement for health and dental insurance benefits
obtained by Black, in an amount equal to the amount then paid by Xxxxxx
for such benefits for other executive employees and subject to the same
co-pay, deductibles, and the like, commencing the day after the
Termination Date and continuing through and including Black's
sixty-fifth (65th) birthday (provided, that Xxxxxx and Black shall
cooperate to take such steps as are reasonably practical to qualify
Black for continued coverage by Xxxxxx'x health and dental insurance
plans following the Termination Date),
(vi) term life insurance and long and short term disability
coverage under policies of general applicability to Xxxxxx'x executive
employees, through and including the Termination Date,
(vii) a car allowance of $700 per month through and including
the Termination Date, and
(viii) participation to the extent he is otherwise eligible
therefor in Xxxxxx'x 401(k) Plan and Employee Stock Purchase Plan,
through and including the Termination Date.
(b) Through and including the Termination Date, Xxxxxx will maintain
the existing $300,000 whole life insurance policy on Black's life issued by the
Prudential Insurance Company, and the existing $1,000,000 term life insurance
policy on his life issued by the Prudential Insurance Company. At Black's
election, exercised by giving written notice to Xxxxxx before or within thirty
days after the Termination Date, Xxxxxx will transfer to Black ownership of and
beneficial interests in such policies. Prior to any such transfer, Xxxxxx may
receive a distribution of the cash value of such policies and after any such
transfer Xxxxxx shall have no further obligations, including without limitation
obligations to pay premiums, with respect to such policies. If Black does not
elect to have such policies transferred to him, Xxxxxx shall be free to retain,
cancel, change beneficiaries of, or otherwise deal in any manner with such
policies.
(c) Through and including the Termination Date, Black shall continue to
accrue, and may use, vacation time in accordance with company policy. Subject to
company policy regarding limitations on carry-over of vacation time, Xxxxxx
shall pay Black all of his vacation time accrued and unused, as well as
reimbursement for ordinary and customary business expenses incurred through and
including, the Termination Date.
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(d) If a Disability of Black occurs prior to the Termination Date, then
during the period that Black is receiving disability payments under Xxxxxx'x
Disability Policies: (i) until and including the Termination Date, such
disability payments shall be in lieu of any payments to which Black would be
otherwise entitled under Section 5(a)(i) and, to the extent applicable to such
period, payments to which Black would be otherwise entitled under Section
5(a)(ii) hereof; and (ii) following the Termination Date, the monthly payments
otherwise due Black under Section 5(a)(iii) shall be reduced by an amount equal
to any monthly disability payment to which he is entitled under the Disability
Policies for the month in which such Section 5(a)(iii) payment is made.
(e) Xxxxxx shall reimburse Black for his attorney fees and
disbursements related to the transactions contemplated by this Agreement up to a
maximum of $30,000.
(f) All payments hereunder shall be subject to any required withholding
of federal, state and local taxes pursuant to any applicable law or regulation.
(g) If a Change of Control shall have occurred, then (i)
notwithstanding anything to the contrary in Section 7(c) hereof or otherwise,
but subject to Black's continuing obligation to comply with Sections 3(d), 9,
10, and 11 hereof, Black shall in all events be entitled to the payments and
benefits described in Sections 5(a)(iii) and 5(a)(v) hereof, and (ii) in
addition to any other rights he may have hereunder, Black may elect by notice to
Xxxxxx, to receive all amounts not yet paid under Section 5(a)(iii) in a lump
sum, payable on the later of ten days after such notice is given or the
Termination Date.
6. Research Activities. For a period of two years after the Termination
Date, Black shall have access to and a fully paid, irrevocable license to use,
existing Xxxxxx research data without charge for the purpose of preparing books
and articles based on this research, giving appropriate credit to Xxxxxx.
Following the Termination Date, if Black so requests, Xxxxxx shall continue to
provide to Black, without charge, such secretarial and technical support as the
Board of Directors of Xxxxxx shall xxxx reasonable in connection with the
research then being conducted. In addition, prior to a Change of Control Xxxxxx
shall give fair consideration to any appropriate requests by Black for
additional internet data collection in connection with such research, provided
the same can be accomplished without undue cost or disruption to Xxxxxx. Section
10 hereof shall not apply to any intellectual property developed or created by
Black in connection with the post-Termination Date activities described herein,
all of which shall be and remain the property of Black; provided, however,
intellectual property developed or created by Xxxxxx shall remain the property
of Xxxxxx and Xxxxxx shall have a fully paid, irrevocable license to use the
intellectual property developed or created by Black based in whole or in
material part on Xxxxxx research and intellectual property in connection with
its business or operations, giving appropriate credit to Black. In case of
conflict between the provisions of this Section 6 and Section 9 or Section 11,
the provisions of Section 9 and Section 11 shall be controlling.
7. Termination.
(a) Xxxxxx reserves the right to terminate Black's employment at any
time with or without Cause, and Black reserves the right to terminate his
employment at any time with or without Good Reason and in any of such events,
neither party shall have any further obligation to the other under Section 2 or
Section 3 hereof.
(b) If Xxxxxx terminates Black's employment without Cause or Black
validly terminates his employment for Good Reason prior to the Termination Date,
Xxxxxx shall nonetheless remain liable for, and pay or provide to Black, all of
the payments and benefits specified in Section 5 through the Termination Date,
and thereafter as specified in Section 5(a)(iii) and Section 5(a)(v).
(c) If Xxxxxx validly terminates Black's employment with Cause or Black
terminates his employment without Good Reason (including by death) prior to a
Termination Date that occurs other than by operation of this Section 7(c),
Xxxxxx'x obligations under Section 5 shall be cancelled and of no further effect
as of the Termination Date, but Xxxxxx shall remain liable to pay Black all
amounts accrued hereunder prior to the Termination Date. The cessation of
employment of Black shall not be deemed to be for Cause unless and until there
shall have been delivered to Black a copy of a resolution adopted by the
affirmative vote of a majority of the entire membership of the Board of
Directors after at least five business days notice is provided to Black and
Black is given an opportunity,
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together with counsel, to be heard by the Board of Directors of Xxxxxx at a
meeting (which may be by telephonic conference call), finding that in the good
faith opinion of the Board of Directors of Xxxxxx Black is guilty of the conduct
described in the definition of Cause and describing in reasonable detail the
particulars thereof. The cessation of employment of Black shall not be deemed to
be for Good Reason unless and until Black shall have provided to Xxxxxx at least
five business days' notice describing in reasonable detail the particulars
thereof.
8. Non-Compete Agreement. The Non-Compete Agreement and any other
understandings or agreements between Xxxxxx and Black related to the terms and
conditions of his employment are hereby terminated, shall have no further force
and effect, and are replaced hereby.
9. Confidentiality. During the course of his employment, Black may have
access to, develop, or otherwise be exposed to or aware of Confidential
Information. Black acknowledges that the Confidential Information must be kept
strictly confidential. During and after termination of Black's employment by
Xxxxxx Black agrees: (a) to take every reasonable precaution to safeguard and
treat the Confidential Information as confidential, (b) not to disclose the
Confidential Information to any third party except as part and in furtherance of
the business of Xxxxxx, and (c) not to disclose or use the Confidential
Information in any manner that would not be in furtherance of the interests of
Xxxxxx.
10. Ownership of Intellectual Property. During Black's employment with
Xxxxxx prior to the date hereof, Black individually or with others may have been
involved in the development, invention, or creation of proprietary material,
methods, intellectual property, inventions, or technology including without
limitation items or materials that may be patentable, and during his future
employment with Xxxxxx, Black individually or with others may be involved in the
same. All such materials, methods, intellectual property, inventions, and
technology are developed on behalf of Xxxxxx and in the course of Black's
employment by Xxxxxx, and Xxxxxx shall be the sole and exclusive owner thereof
and shall have all proprietary rights therein. Black shall execute and deliver
any assignments, licenses, or other agreements necessary or desirable from time
to time to give Xxxxxx the full benefit of such ownership.
11. Non-Competition.
(a) Prior to the Termination Date, Black shall not, directly or
indirectly in any capacity (including among others as a director, officer,
employee, agent, consultant, partner or equity owner of any entity, except as
owner of less than 5% of the shares of the publicly traded stock of a
corporation), compete in any manner with Xxxxxx.
(b) During the two-year period following the Termination Date, Black
shall not, directly or indirectly in any capacity (including among others as a
director, officer, employee, agent, consultant, partner or equity owner of any
entity, except as owner of less than 5% of the shares of the publicly traded
stock of a corporation), compete with Xxxxxx. Without limitation, Black shall
not competitively solicit or otherwise deal in a competitive way with any of the
clients or customers of Xxxxxx as of the time of his termination (including any
client to whom Xxxxxx has sold services or products in the two years prior to
termination and any prospective client or customer who has been targeted or
approached by Xxxxxx within the previous six months) with respect to any
services or products competitive with those of Xxxxxx, or which otherwise
directly or indirectly in any manner compete with Xxxxxx in any line of business
carried on or planned by Xxxxxx during Black's employment.
(c) Black acknowledges that damages for any breach of this Section 11
will be difficult, if not impossible, to calculate and that legal remedies for
breach of this provision will be inadequate. Therefore, Xxxxxx shall be entitled
to obtain injunctive relief to enforce this provision in addition to any other
remedy at law or equity including termination of payments hereunder.
12. Related Agreements/Further Assurances. The parties agree to
mutually cooperate in the execution and delivery of any documents and
agreements, and in the taking of any actions, reasonably necessary or desirable
to effectuate the purposes of this Agreement. Among others and as a condition of
the post Termination Date benefits to be provided hereunder, on the Termination
Date Black shall deliver to Xxxxxx a release in favor of Xxxxxx in the form
attached hereto as Exhibit A.
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13. Notices. Any notice or demand upon any party hereto shall be deemed
to have been sufficiently given or served for all purposes hereof when in
writing and delivered in person or by nationally recognized overnight courier
with receipt requested, or three business days after it is mailed certified mail
postage prepaid, return receipt requested, addressed to the address shown in the
preamble to this Agreement or to such other address as may be designated by any
party by notice given to the other in the manner described in this Section 13,
and in the case of notice to Xxxxxx, with a copy given or served in the same
manner addressed to Xxxx Xxx Xxxxxxx, Xxxxxx Beach LLP, 00 Xxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000, and in the case of Black, with a copy given or served
in the same manner addressed to Xxxxxxx X. Xxxxxxxx, Xxxxxxxxx Xxxxxxx, Xxxx &
Xxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
14. Representation/Drafting. Each of the parties acknowledges that it
has been represented by legal counsel in the negotiation and drafting of this
Agreement, that this Agreement has been drafted by mutual effort, and that no
ambiguity in this Agreement shall be construed against either party as
draftsperson.
15. Successors and Assigns. This Agreement shall inure to the benefit
of, and shall be binding upon, the respective heirs, legal representatives,
successors, and assigns of the parties hereto.
16. Term. The term of this Agreement shall commence on the date hereof
and shall expire on the Termination Date, except that the obligations provided
in Sections 3(d), 4(b), 5(a)(iii), 5(a)(v), 5(b), 5(f), 5(g), 6, 8, 9, 10,
11(b), 11(c), 12, 14, 15, 16, 17, 18, 19, and 20 shall survive and be continuing
in accordance with their terms, and except that any financial obligation accrued
prior to the Termination Date shall survive until discharged by the payment
thereof.
17. Governing Law. This Agreement shall be construed under and governed
by the laws of the State of New York, without reference to principles of
conflicts of laws. The parties hereto consent to exclusive venue in the courts
of the State of New York sitting in Monroe County, or in the United States
Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx xx Xxx Xxxx with respect to any dispute
regarding the subject matter hereof. If any legal action is commenced to enforce
or interpret the provisions of this Agreement, or to recover damages for its
breach, all reasonable legal fees, disbursements, and court costs paid or
incurred by the prevailing party arising out of or resulting from such action or
proceeding shall be reimbursed by the other party to the prevailing party in
such action or proceeding.
18. Entire Agreement/Waivers. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and shall not
be modified or amended except in writing signed by both of the parties. No
waiver of any breach of this Agreement shall be a waiver of any preceding or
succeeding breach, and no waiver of any right under this Agreement shall be
construed as a waiver of any other right. Xxxxxx and Black shall not be required
to give notice to enforce strict adherence to all terms of this Agreement.
19. Severability. If one or more of the provisions in this Agreement
are deemed unenforceable by law, then the remaining provisions shall continue in
full force and effect.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which,
when taken together, shall be deemed to constitute the same Agreement.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXX INTERACTIVE INC.
By: /s/ XXXXX X. XXXXXX
-------------------------
Title: Chief Financial Officer,
Secretary and Treasurer
-------------------------
/s/ XXXXXX X. BLACK
---------------------------------
XXXXXX X. BLACK
