EXHIBIT 10.5.2
EMPLOYMENT AGREEMENT
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AGREEMENT made as of the 1st day of January, 2000 by and between Lighthouse
Landings Inc., a New Jersey corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and ▇▇▇▇▇▇▇ Capazze
(the "Employee") residing at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H
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WHEREAS, the Company wishes to assure itself of the services of the
Employee, and the Employee wishes to serve in the employ of the Company, upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Employment Term.
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1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the position and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement shall
be the period commencing on the date hereof and continuing through December 31,
2002, unless sooner terminated in accordance with this Agreement.
2. Position, Duties. The Employee shall serve the Company as the
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President and Chief Executive Officer of the Company. The Employee shall report
to, and shall have such duties and responsibilities as shall be reasonably
assigned to the Employee, by the Board of Directors of the Company which duties
and responsibilities shall include responsibility for the Company's business
plans budgets corporate policies and programs. The Employee shall perform his
duties and responsibilities hereunder faithfully and diligently. The Employee
shall devote such time and attention as is required for the performance of his
duties and responsibilities hereunder. The Employee hereby represents that he is
not bound by any confidentiality agreements or restrictive covenants with anyone
other then the Company which restrict or may restrict his ability to perform
his duties hereunder, and agrees that he will not enter into any such agreements
or covenants during the term of his employment hereunder, except such
restrictive covenants or confidentiality agreements which are required by the
Company. The Employee shall be based at the offices of the Company for the
duration of the term of this Agreement.
3. Compensation.
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3.1 Base Salary. During the term of this Agreement, in consideration
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of the performance by the Employee of the services set forth in Section 2 and
his observance of the other covenants set forth herein, the Company shall pay
the Employee, and the Employee shall accept, a base salary at the rate of One
Hundred and Fifty Thousand Dollars ($150,000.00) per annum, payable in
accordance with the standard payroll practices of the Company. In addition to
the base salary payable hereunder, the Employee shall be entitled to receive
merit increases in salary during the term hereof in amounts and at such times as
shall be determined by the Board of Directors of the Company in its sole
discretion.
3.2 Bonus. The Employee shall be eligible to receive an annual bonus
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based on achievement by the Company of growth performance goals as established
by the Board of Directors in its sole discretion.
3.3 Warrants. Employer shall issue three stock warrants to Employee
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each warrant permitting Employee to purchase 100,000 shares of Employer stock
within a three year period from the date of issuance at $1.00 per share. The
first warrant shall be issued to Employee upon the execution hereof and the
2/nd/ and 3/rd/ warrants shall be issued on the 2/nd/ and 3/rd/ annual
anniversary of this Agreement.
3.4 Anti Dilution. The Employer shall take no action nor permit any
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action to be taken which would in any manner cause the Employer stock warrants
to be diluted in any fashion including but not limited to, stock dividends, or a
stock split without notice to Employee and the amendment of Employee's warrants
to enable Employee to participate in any such enhancement of his warrants.
4. Expense Reimbursement. During the term of the Employee's
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employment by the Company pursuant to this Agreement, consistent with the
Company's policies and procedures as may be in effect from time to time, the
Company shall reimburse the Employee for all reasonable and
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necessary out-of-pocket expenses incurred by him in connection with the
performance of his duties hereunder, upon the presentation of proper accounts
there for in accordance with the Company's policies. Employees shall be entitled
to a $1,000.00 per month automobile allowance.
5. Other Benefits. During the term of the Employee's employment by
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the Company pursuant to this Agreement, the Employee shall be entitled to
receive four weeks paid vacation time per annum and such other benefits as are
from time to time made available to Employee by the Board of Directors. In
addition, the Employee shall be entitled to receive (i) a Five Hundred Thousand
Dollar ($500,000.00) term life insurance policy on the life of the Employee and
(ii) disability insurance with maximum allowable coverage and a 90 day waiting
or elimination period.
6. Termination of Employment.
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6.1 Death. In the event of the death of the Employee during the term
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of this Agreement, the Company shall pay to the estate or other legal
representative of the Employee the salary provided for in Section 3.1 (at the
annual rate then in effect) accrued to that date which is six months after the
Employee's date of death and not theretofore paid, and the estate or other legal
representative of the Employee shall have no further rights under this
Agreement.
6.2 Disability. If the Employee shall become incapacitated by reason
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of sickness, accident or other physical or mental disability and shall for a
period of ninety (90) consecutive days be unable to perform his normal duties
hereunder, with or without reasonable accommodation, the employment of the
Employee hereunder may be terminated by the Company upon thirty (30) days' prior
written notice to the Employee. Promptly after such termination, the Company
shall pay to the Employee the salary provided for in Section 3.1 (at the annual
rate then in effect) accrued to the date of such termination and not theretofore
paid. Neither the Employee nor the Company shall have any further rights or
obligations under this Agreement, except as provided in Sections 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
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terminated by the Company at any time during the term of this Agreement for Due
Cause (as hereinafter defined). In the event of such termination, the Company
shall pay to the Employee the salary provided for in Section 3.1 (at the annual
rate then in effect) accrued to the date of such termination and not theretofore
paid to the Employee, and, after the satisfaction of any claim of the Company
against the Employee arising as a direct and proximate result of such Due Cause,
neither the
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Employee nor the Company shall have any further rights or obligations under this
Agreement, except as provided in Sections 7, 8, 9 and 10. For purposes hereof,
"Due Cause shall mean (a) a material breach of any of the Employee's obligations
hereunder (it being understood that any breach of the provisions of Sections 2,
7, 8 or 9 hereof shall be considered material); (b) the habitual abuse of
alcohol or unprescribed drugs by the Employee to an extent that such use
interferes with the performance by the Employee of his responsibilities
hereunder; or (c) that the Employee, in carrying out his duties hereunder, has
been guilty of gross mismanagement resulting in material harm to any member of
the Company Group (as hereinafter defined); or (d) that the Employee has been
convicted of, or entered a plea of nolo contendere to, (i) a felony or (ii) any
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lesser crime or offense involving moral turpitude. In the event of an occurrence
under this Section 6.3, the Employee shall be given written notice by the
Company that it intends to terminate the Employee's employment for Due Cause
under this Section, which written notice shall specify the act or acts upon the
basis of which the Company intends so to terminate the Employee's employment. If
the basis for such written notice is an act or acts described in clause (a) or
(b) above (and not involving moral turpitude), the Employee shall be given
twenty (20) days with respect to an act or acts described in clause (a) and
sixty (60) days with respect to an act or acts described in clause (b) to cease
or correct the performance (or nonperformance) giving rise to such written
notice and, upon failure of the Employee within such twenty (20) days or sixty
(60) days, as applicable, to cease or correct such performance (or
nonperformance), the Employee s employment by the Company shall automatically be
terminated hereunder for Due Cause.
6.4 Other Termination by the Company. The Company may terminate the
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Employee's employment prior to the expiration of the term of this Agreement for
whatever reason it deems appropriate; provided, however, that in the even that
such termination is not pursuant to Sections 6.1, 6.2 or 6.3, the Company shall
(i) pay to the Employee in a lump sum one and one half times his annual salary
provided for in Section 3.1 (at the annual rate then in effect) and (ii) give
employee warrants granting Employee the right to purchase 150,000 shares of the
Company's common stock at $1.00 her share over a period of five (5) years from
the date of termination. Neither the Employee nor the Company shall have any
further rights or obligations under this Agreement, except as provided in
Sections 7, 8, 9 and 10.
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6.5 Termination by the Employee by Resignation. This Agreement may
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be terminated by the Employee, at any time upon 30 days prior written notice to
the Company, upon the occurrence of a change in the Employee's responsibilities
which represents a material adverse change from his responsibilities as
described in Section 2 (which, is not cured within such 30-day period).
Upon any such termination in accordance with this Section 6.5, the
Company shall continue to pay to the Employee (or his estate or other legal
representative in the case of the death of the Employee subsequent to such
termination), in the same periodic installments as his annual salary was paid,
the salary provided for in Section 3.1 (at the annual rate then in effect) until
end of term.
6.6 Intentionally Left Blank.
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6.7 Rights to Benefits. Upon termination of employment under any
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provision contained in this Section 6, rights and benefits of the Employee, his
estate or other legal representative under the employee benefit plans and
programs of the Company, if any, will be determined in accordance with the
terms and provisions of such plans and programs. Neither the Employee nor the
Company shall have any further rights or obligations under this Agreement,
except as provided in Sections 7, 8, 9 and 10.
7. Confidential Information.
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7.1 (a) The Employee shall, during the Employee's employment with
the Company and at all times thereafter, treat all confidential material (as
hereinafter defined) of the Company or any of the Company's subsidiaries,
affiliates or parent entities (the Company and the Company's subsidiaries,
affiliates and parent entities being hereinafter collectively referred to as the
"Company Group") confidentially. The Employee shall not, without the prior
written consent of the Board of Directors of the Company, disclose such
confidential material, directly or indirectly, to any party, who at the time of
such disclosure is not an employee or agent of any member of the Company Group,
or remove from the Company's premises any notes or records relating thereto,
copies or facsimiles thereof (whether made by electronic, electrical, magnetic,
optical, laser, acoustic or other means), or any other property of any member of
the Company Group. The Employee agrees that all confidential material, together
with all notes and records of the Employee relating thereto, and all
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copies or facsimiles thereof in the possession of the Employee (whether made by
the foregoing or other means) are the exclusive property of the Company.
(b) For the purposes hereof, the term "confidential material"
shall mean all information in any way concerning the activities, business or
affairs of any member of the Company Group or any of the customers of any member
of the Company Group, including, without limitation, information concerning
trade secrets, together with all sales and financial information concerning any
member of the Company Group and any and all information concerning projects in
research and development or marketing plans for any products or projects of the
Company Group, and all information concerning the practices and customers of any
member of the Company Group; provided, however, that the term "confidential
material" shall not include information which becomes generally available to the
public other than as a result of a disclosure by the Employee.
7.2 Promptly upon the request of the Company, the Employee shall
deliver to the Company all confidential material relating to any member of the
Company Group in the possession of the Employee without retaining a copy
thereof, unless, in the written opinion of counsel for the Company delivered to
the Employee, either returning such confidential material or failing to retain a
copy thereof would violate any applicable Federal, state, local or foreign law,
in which event such confidential material shall be returned without retaining
any copies thereof as soon as practicable after such counsel advises in writing
to the Employee that the same may be lawfully done.
7.3 In the event that the Employee is required, by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process, to disclose any confidential material
relating to any member of the Company Group, the Employee shall provide the
Company with prompt notice thereof so that the Company may seek an appropriate
protective order and/or waive compliance by the Employee with the provisions
hereof.
8. Non-Competition.
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8.1 The Employee acknowledges that the services to be rendered by him
to the Company are of a special and unique character. The Employee agrees that,
in consideration of his employment hereunder, the Employee will not, (a) (A)
during the term of this Agreement and (B) until two (2) years from the date of
termination of the Employee's employment with the Company or any other member of
the Company Group, directly or indirectly, (w) engage, whether as principal,
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agent, investor, distributor, representative, stockholder, employee, consultant,
volunteer or otherwise, with or without pay, in any activity or business venture
which is competitive with the Business (as hereinafter defined), (x) solicit or
entice or endeavor to solicit or entice away from any member of the Company
Group any person who was or is at the time of solicitation, a director, officer,
employee, agent or consultant of such member of the Company Group, on the
Employee's own account or for any person, firm, corporation or other
organization, whether or not such person would commit any breach of such
person's contract of employment by reason of leaving the service of such member
of the Company Group, (y) solicit or entice or endeavor to solicit or entice
away any of the clients or customers or potential clients or customers of any
member of the Company Group, either on the Employee's own account or for any
other person, firm, corporation or organization, or (z)employ any person who was
or is at the time of employment, a director, officer or employee of any member
of the Company Group or any person who is or may be likely to be in possession
of any confidential information or trade secrets relating to the business of any
member of the Company Group, or (b) at any time take any action or make any
statement, the effect of which would be, directly or Company Group or the
business reputation or good name of any indirectly, to impair the good will of
any member of the member of the Company Group, or be otherwise detrimental to
the Company, including any action or statement intended, directly or indirectly,
to benefit a competitor of any member of the Company Group. For purposes
hereof, "Business" shall mean the business of the Company and any member of the
Company Group including but not limited to Lighthouse Landings Inc. and
Lighthouse Fast Ferry Holdings Inc. their affiliates and subsidiaries, and any
other related activities developed by the Company or any member of the Company
Group.
8.2 The Employee and the Company agree that if, in any proceeding,
the court or authority shall refuse to enforce the covenants herein set forth
because such a geographic area or too long a period of time, any such covenant
shall be deemed appropriately amended and modified in keeping with the intention
of the parties to the maximum extent permitted by law.
8.3 The Employee expressly acknowledges and agrees that the covenants
and agreements set forth in this Section 8 are reasonable in all respects, and
necessary in order to protect, maintain and preserve the value and goodwill of
the Company Group, as well as the proprietary and other legitimate business
interests of the members of the Company Group. The Employee
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acknowledges and agrees that the covenants and agreements of the Employee set
forth in this Section 8 constitute a significant part of the consideration given
by the Employee to the Company in exchange for the salary and benefits provided
for in this Agreement, and are a material reason for such payment.
9. Intellectual Property.
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9.1 Any and all intellectual property, inventions or software made,
developed or created by the Employee (a) during the term of this Agreement or
(b) within a period of one year after the termination of the Employee's
employment with the Company or any other member of the Company Group, which
reasonably relate to the business of the Company or any other member of the
Company Group or which reasonably relate to any business conducted by the
Company during the term of the Employee's employment by the Company (each, an
"Invention"), whether at the request or suggestion of the Company or otherwise,
whether alone or in conjunction with others, and whether during regular working
hours of work or otherwise, shall be promptly and fully disclosed by the
Employee to the Board of Directors of the Company and shall be the Company's
exclusive property as against the Employee, and the Employee shall promptly
deliver to the Board of Directors all papers, drawings, models, data and other
material relating to any Invention made, developed or created by him as
aforesaid. In addition, the Employee covenants and agrees to disclose to the
Board of Directors any Invention developed or created by the Employee during the
term of this Agreement, whether or not such Invention relates to the business
being conducted by the Company or any other member of the Company Group at the
time of development or creation of such Invention.
9.2 The Employee hereby expressly acknowledges and agrees that any
Invention developed or created by the Employee during the term of this Agreement
which reasonably relates to the business of the Company or any other member of
the Company Group or which reasonably relates to the business conducted by the
Company during the Employee's employment by the Company shall be considered
"works made for hire" within the meaning of the Copyright Act of 1976, as
amended (17 U.S.C. (S) 101). Each such invention as well as all copies of such
Invention in whatever medium fixed or embodied, shall be owned exclusively by
the Company as of the date of creation.
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9.3 The Employee shall, upon the Company's request and without any
payment therefor, execute any documents necessary or advisable in the opinion of
the Company's counsel to direct issuance of patents or copyrights of the Company
with respect to such Invention as are to be in the Company's exclusive property
as against the Employee under this Section 9 or to vest in the Company title to
such inventions as against the Employee, the expense of securing any such patent
or copyright, to be borne by the Company. In addition, the Employee agrees not
to file any patent, copyright or trademark applications related to such
Invention.
10. Equitable Relief. In the event of a breach or threatened breach by
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the Employee of any of the provisions of Sections 7, 8 or 9 of this Agreement,
the Employee hereby consents and agrees that the Company shall be entitled to
pre-judgment injunctive relief or similar equitable relief restraining the
Employee from committing or continuing any such breach or threatened breach or
granting specific performance of any act required to be performed by the
Employee under any of such provisions, without the necessity of showing any
actual damage or that money damages would not afford an adequate remedy and
without the necessity of posting any bond or other security. The parties hereto
hereby consent to the jurisdiction of the federal courts located in New Jersey
and the state courts located in such District for any proceedings under this
Section 10. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity which it may have.
11. Successors and Assigns.
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11.1 Assignment by the Company. The Company may assign this
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Agreement to any member of the Company Group or to any entity which acquires
substantially all the assets and business of the Company, and the Employee
hereby consents to such assignment.
11.2 Assignment by the Employee. The Employee may not assign this
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Agreement or any part hereof without the prior written consent of the Board of
Directors of the Company.
12. Governing Law. This Agreement shall be deemed a contract made under,
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and for all purposes shall be construed in accordance with, the laws of New
Jersey or such other State in which the Employee's principal business office is
located if his principal business office no longer is in New Jersey applicable
to contracts to be performed entirely within such State.
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13. Entire Agreement. This Agreement contains all the understandings and
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representations between the parties hereto pertaining to the subject matter
hereof and supersede all undertakings and agreements, whether oral or in
writing, if there be any, previously entered into by them with respect thereto;
provided, however, that Section 8 shall not serve as a limitation of the terms
of-any other non-competition agreement between the Employee and any member of
the Company Group.
14. Modification and Amendment; Waiver. The provisions of this Agreement
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may be modified, amended or waived, but only upon the written consent of the
party against whom enforcement of such modification, amendment or waiver is
sought and then such modification, amendment or waiver shall be effective only
to the extent set forth in such writing. No delay or failure on the part of any
party hereto in exercising any right, power or remedy hereunder shall effect or
operate as a waiver thereof, nor shall any single or partial exercise thereof or
any abandonment or discontinuance of steps to enforce such right, power or
remedy preclude any further exercise thereof or of any other right, power or
remedy.
15. Notices. All notices, requests or instructions hereunder shall be in
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writing and delivered personally, sent by telecopier or sent by registered or
certified mail, postage prepaid, as follows:
If to the Company: To the address set forth above.
Attention: Chief Executive Officer
Telecopy No.
Telephone No.
If to the Employee:
▇▇▇▇▇▇▇ Capazze
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Either of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the
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date of delivery, if hand delivered or telecopied, and two business days after
the date of mailing, if mailed.
16. Arbitration. Any controversy or claim arising out of or relating to
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this Agreement, or any breach hereof, shall, except as provided in Section 10
hereof, be settled by arbitration in accordance with the rules of the American
Arbitration Association for a single arbitrator then in effect and judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The arbitration shall be held in the Newark, New Jersey
area.
18. Expenses. Each of the parties hereto shall bear his or its own costs
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and expenses, including attorneys fees and disbursements, incurred in connection
with this Agreement and the transactions contemplated hereby.
19. Titles. Titles of the sections of this Agreement are intended solely
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for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
20. Severability. Should any provision of this Agreement be held by a
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court of competent jurisdiction to be enforceable only if modified, such holding
shall not affect the validity of the remainder of this Agreement, the balance of
which shall continue to be binding upon the parties hereto with any such
modification to become a part hereof and treated as though originally set forth
in this Agreement. The parties further agree that any such court is expressly
authorized to modify any such unenforceable provision of this Agreement in lieu
of severing such unenforceable provision from this Agreement in its entirety,
whether by rewriting the offending provision, deleting any or all of the
offending provision, adding additional language to this Agreement, or by making
such other modifications as it deems warranted to carry out the intent and
agreement of the parties as embodied herein to the maximum extent permitted by
law. The parties expressly agree that this Agreement as so modified by the court
shall be binding upon and enforceable against each of them. In any event, should
one or more of the provisions of this Agreement be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this Agreement shall be construed
as if such invalid, illegal or unenforceable provisions had never been set forth
herein.
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21. Survivorship. The respective rights and obligations of the parties
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hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
LIGHTHOUSE LANDINGS, INC., Employer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
Title:
/s/ ▇▇▇▇▇▇▇ Capazze
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▇▇▇▇▇▇▇ Capazze, Employee
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