EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the February 7, 2000, by and between
▇▇▇▇▇▇▇.▇▇▇, INC., a Delaware Corporation with principal offices at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company") and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, an
individual residing at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Executive is a founder of the Company and is experienced and
knowledgeable about the business and affairs of the Company; and
WHEREAS, the Company recognizes that the Executive's contributions as
founder and shareholder, to the growth and success of the Company have been
substantial, and desires to assure the Executive's continued commitment to the
Company and to compensate him therefore; and
WHEREAS, the Executive is desirous of committing himself to serve the
Company on the terms herein provided;
NOW, THEREFORE, it is agreed as follows:
ARTICLE 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings set
forth below:
1.01. "AFFILIATE" of an entity shall mean any entity controlled by,
controlling or under common control with such entity.
1.02. "BASE SALARY" shall mean the Executive's base salary pursuant to
Section 5.01(a) hereof.
1.03. "BOARD" shall mean the Board of Directors of the Company.
1.04. "CAUSE" shall mean (i) any proven act or acts of dishonesty by the
Executive constituting a felony; (ii) any proven act or acts of dishonesty by
the Executive resulting or intended to result directly or indirectly in gain to
or personal enrichment of the Executive at the Company's expense; (iii) any
action by the Executive that would expose the Company to public disrepute; (iv)
any willful act of insubordination by the Executive or refusal by the Executive
to follow the directives of the Company's Board of Directors; or (v) a proven
act or acts by the Executive constituting a substantial violation of a policy
established by the Company's Board
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resulting in a materially adverse consequence to the Company, except that the
Executive shall not be deemed to have been terminated for Cause unless there
shall have been delivered to him a copy of a Notice of Termination from the
Company after reasonable notice to the Executive and an opportunity for him,
together with his counsel, to be heard before a meeting of the Board,
accompanied by a resolution duly adopted by a majority of the directors of the
Company then in office, finding that in the good faith opinion of such directors
the Executive was guilty of the conduct set forth above and specifying the
particulars thereof in reasonable detail.
1.05. "CONSUMER PRICE INDEX" shall mean the Consumer Price Index issued
from time to time by the Bureau of Labor Statistics of the United States
Department of Labor.
1.06. "DATE OF TERMINATION" shall mean (i) if the Executive's employment is
terminated by his death, the date of his death, (ii) if the Executive's
employment is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that the Executive shall not have returned to the
full-time performance of his duties during such thirty (30) day period), (iii)
if the Executive's employment is terminated for Cause, the date specified in the
Notice of Termination, and (iv) if the Term of this Agreement expires, upon the
later of the date of such expiration or the date of the actual termination of
the Executive's employment by the Company.
1.07. "DISABILITY" shall occur upon the earlier of (i) an incapacity due to
physical or mental illness, which causes the Executive to be absent from his
duties under this Agreement on a full-time basis for one hundred and eighty
(180) consecutive days, or (ii) thirty (30) days after written notice from the
Company to the Executive that the Company has received, from a duly licensed
physician selected according to the procedure described below, an opinion that
the Executive will be unable to perform his duties on a full-time basis prior to
the expiration of one hundred and eighty (180) days after an incapacity due to
physical or mental illness began.
Upon request from the Company, the Executive, his spouse or personal
representative shall permit a duly licensed physician selected by the Company to
make an examination which would permit such physician to form an opinion as to
the extent of the Executive's incapacity. At the Executive's option and at the
Company's expense, the Executive may then select an alternate duly licensed
physician to make an examination of the Executive and to render an opinion as to
the extent of the Executive's incapacity. If the two physicians are in
disagreement as to whether the Executive would be unable to perform his duties
on a full-time basis prior to the expiration of one hundred and eighty (180)
days after such incapacity began, such two physicians shall together select a
third duly licensed physician to make an examination and to render an opinion as
to the extent of the Executive's incapacity, and such third physician's opinion
shall be determinative.
1.08. "EXPENSES" shall mean and include without limitation, expenses of
investigations, judicial or administrative proceedings or appeals, amounts paid
in settlement by or on behalf of the Executive, attorneys' fees and
disbursements and any expenses of establishing a right to indemnity under this
Agreement.
1.09. "GOOD REASON" shall mean (i) any assignment to the Executive of any
duties other than those contemplated by, or any limitation of the powers of the
Executive in any respect not
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contemplated by, Section 4.02 hereof, (ii) any removal of the Executive from or
any failure to re-elect the Executive to any of the positions indicated in
Article 4 hereof or of the Company or any Affiliate thereof, except in
connection with termination of the Executive's employment for Cause, death or
Disability, (iii) a reduction in the Executive's rate of compensation, or a
reduction in the Executive's fringe benefits except a reduction effected at the
insistence of the Executive or as otherwise permitted by this Agreement, (iv)
any other failure by the Company to comply with Articles 4 and 5 hereof, or (v)
breach by the Company, or any of the parties thereto, of any of the Other
Agreements.
1.10. "NOTICE OF TERMINATION" shall mean written notice which shall
indicate the specific provision in this Agreement being relied upon and shall
set forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated. Such a notice given by the Company may only be given if approved by
the Board.
1.11. "PROCEEDING" shall mean and include any threatened, pending or
completed action, suit or proceeding, whether brought by or in the right of the
Company or in the name of the Company or otherwise and whether of civil,
criminal, administrative or investigative nature, including but not limited to,
actions, suits or proceedings brought under and/or predicated upon the
Securities Act of 1933, as amended, and/or the Securities and Exchange Act of
1934, as amended, and/or the Investment Advisers Act of 1940, as amended, and/or
the Investment Company Act of 1940, as amended, and/or the Futures Trading Act
of 1982, as amended, and/or the Commodity Exchange Act, as amended, and/or their
respective state counterparts and/or any rule or regulation promulgated
hereunder, in which the Executive may be or may have been involved as a party or
otherwise, by reason of the fact that he is or was an officer, director,
employee or agent of the Company or any Affiliate of the Company or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture or other enterprise, or by
reason of any alleged action or inaction of the Executive while acting in such
capacity or in any other capacity related to the Company or such other
enterprise while serving in such capacity, whether or not he is serving in such
capacity at the time any liability or expense is incurred for which
indemnification is provided under this Agreement.
ARTICLE 2. EMPLOYMENT OF THE EXECUTIVE.
The Company shall continue to employ the Executive, according to the terms
of this Agreement, to perform his duties set forth in Schedule "A" attached
hereto. The Executive accepts such employment and agrees to serve the Company in
such capacities, according to the terms of this Agreement, for the duration
thereof.
ARTICLE 3. TERM.
The term of this Agreement shall begin on February 7, 2000 and shall
continue to and including February 7, 2002 (the "Term"). The Company and the
Executive may, from time to
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time by mutual agreement, extend the Term of this Agreement beyond February 7,
2002, but each such extension shall be to a date certain. If the Executive
continues to be employed by the Company upon the expiration of the Term of this
Agreement, whether as extended or not, the terms of this Agreement shall remain
in full force and effect until such time as a superseding employment agreement
is executed by the Executive and the Company.
ARTICLE 4. DUTIES.
4.01. COMMITMENT. The Executive shall devote his best efforts and the time
and attention he deems necessary to the performance of his duties hereunder.
4.02. DUTIES.
(a) The Executive shall perform such duties as are normally carried out
by a Chairman and Chief Executive Officer as well as such other duties
consistent therewith as may be assigned to the Executive from time to time
by the Board. Any such other duties must be approved by the Executive.
(b) The Company shall not interfere directly or indirectly in the
performance of such duties and shall provide all support reasonably
necessary to the Executive to enable him to perform his duties.
(c) The Executive shall report directly to the Board of Directors. The
Company shall not name any person(s) to occupy positions superior, in title
or in fact, to those held by the Executive without the Executive's prior
written consent.
4.03. POSITIONS. The Executive shall be the Chairman of the Board of
Directors and Chief Executive Officer of the Company.
4.04. SITE. The Executive will perform his duties where it deems necessary
for the success of the Company.
ARTICLE 5. COMPENSATION.
5.01. BASE SALARY.
(a) The Company shall pay the Executive, and the Executive shall be
entitled to receive, a salary of ONE HUNDRED AND TWENTY THOUSAND DOLLARS
(US$120,000.00) per year, payable in equal semi-monthly installments (the
"Base Salary"), commencing on January 1, 2000, provided however that upon
consummation of the secondary offering in Registration No. 333-88065 such
salary shall be ONE HUNDRED EIGHTY THOUSAND DOLLARS (US$180,000) per year
retroactive to January 1, 2000.
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(b) The Executive's Base Salary shall be increased annually on the
anniversary date of this Agreement at a rate equivalent to the rate of the
increase in the Consumer Price Index over the preceding twelve (12) months.
Notwithstanding the foregoing, the Company may increase the Executive's
Base Salary at a higher rate. In no event may the Base Salary be decreased.
5.02. BONUS.
(a) In addition to the Base Salary, the Company shall pay the
Executive, and the Executive shall be entitled to receive, the bonuses
described in this Section 5.02 and such other bonuses as the Board from
time to time may determine (the "Bonus").
(b) During the first two (2) months of every calendar year, the Company
and the Executive shall meet to negotiate the parameters upon which the
Bonus shall be determined for such calendar year or portion thereof. Such
Bonus shall not be less then TWENTY PERCENT (20%) the Executive's Base
Salary.
(c) The Bonus for each calendar year during the Term or portion thereof
shall be paid every six months (calendar year) in a lump sum at the
Executive's option in cash, marketable securities or other equivalent
assets, or contributed to a deferred compensation plan should the Company
establish or adopt one.
(d) If the Executive's employment is terminated prior to the
determination that he would have been entitled to receive the Bonus, he
will be entitled to receive a pro rata portion of the Bonus payable within
thirty (30) days after the Date of Termination.
5.03. STOCK OPTION.
(a) In addition to the Base Salary and Bonus, the Executive shall be
entitled to the benefits of an employee incentive stock option plan.
(b) In September 1999, the Compensation Committee granted to Executive
options to purchase three hundred thousand (300,000) shares of common stock
at an exercise price of $2.75 per share pursuant to the Company's stock
option plan.
(c) If the Executive's employment is terminated prior to the
determination that he would have been entitled to a grant of rights under
the a stock option plan, he will be entitled to receive a pro rata portion
of such grant of rights within thirty (30) days after the Date of
Termination.
5.04. BENEFITS.
(a) The Company shall reimburse the Executive, in accordance with its
standard policies on a monthly basis, for reasonable and proper expenses,
including entertainment expenses, incurred on behalf of the Company against
presentation of itemized statements of such expenditures.
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(b) The Executive shall be entitled to four (4) weeks paid vacation for
every year of the Term. Such vacation time may be accumulated and taken in
a subsequent year.
(c) The Company shall provide the Executive and his dependents with
medical benefits pursuant to a standard group medical insurance policy.
5.05. MISCELLANEOUS.
(a) Any increase in Base Salary or other compensation hereunder shall
in no way limit or reduce any other obligation of the Company hereunder.
(b) The Company shall, at the Executive's election, defer payment of
all or a portion of the Executive's Base Salary, Bonus or other benefits.
(c) The Executive shall be entitled to participate in any deferred
compensation plan that may be adopted or established by the Company for the
benefit of its senior executives, in accordance with the terms thereof.
(d) In addition to the compensation payable to the Executive by the
Company under this Agreement as described in this Article 5, the Executive
shall be entitled to supplemental benefits, including (without limiting the
generality of the foregoing) benefits under stock option, stock purchase,
pension, thrift and deferred profit-sharing plans, employee retirement
plans, hospitalization and medical plans, long-term disability plans, group
life insurance plans, expense reimbursement plans, and other similar
benefits and fringe benefits which may hereafter be instituted by the
Company for its senior executives.
ARTICLE 6. TERMINATION.
6.01. BY THE COMPANY. The Company may terminate the Executive's employment
hereunder only for Cause or Disability.
6.02. BY THE EXECUTIVE. The Executive may terminate his employment
hereunder only for Good Reason. The Executive's right to terminate his
employment hereunder shall not be affected by his incapacity due to physical or
mental illness. The Executive's continued employment after the occurrence of
circumstances which constitute Good Reason shall not constitute consent to or
waiver of rights with respect to any subsequently occurring circumstances which
constitute Good Reason hereunder.
6.03. AUTOMATIC TERMINATION. The Executive's employment hereunder shall
automatically terminate upon his death.
6.04. NOTICE OF TERMINATION. Any termination of the Executive's employment
by the Company for Cause or Disability or by the Executive for Good Reason under
the provisions of
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this Article 6 shall be communicated by the party terminating
the Executive's employment by written Notice of Termination to the other party
hereto.
ARTICLE 7. COMPENSATION DURING DISABILITY OR UPON TERMINATION.
7.01. DISABILITY. During any period that the Executive fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness,
the Executive shall continue to receive all compensation provided for in Article
5 hereof, including without limitation his full Base Salary, Bonus, stock
options and any deferred compensation, for such period until the Date of
Termination, provided that, if the Company terminates the Executive's employment
because it has received an opinion of a physician as described in Section 1.07
hereof, the period during which the Executive shall continue to receive such
payments shall not be less than two hundred ten (210) days from the time such
incapacity began. The Company shall not be obligated to pay the Executive the
compensation provided for in Article 5 hereof during any period in which he is
receiving benefits under any Company salary continuation or disability income
program except to the extent of compensation previously accrued and except to
the extent that the compensation provided for in Article 5 hereof exceeds such
benefits under such program.
7.02. DEATH. If the Executive's employment is terminated by reason of his
death, the Executive's legal representative and/or dependent or beneficiary
shall be entitled to receive, and the Company shall pay to or provide for
payment to the Executive's legal representative and/or dependent or beneficiary,
all amounts and benefits described in sub-Sections 7.04(a) through 7.04(d)
hereof.
7.03. TERMINATION BY THE COMPANY FOR CAUSE TERMINATION BY THE EXECUTIVE
WITHOUT GOOD REASON. If the Executive's employment shall be terminated by the
Company for Cause or if the Executive shall terminate his employment without
Good Reason, the Company shall pay the Executive his full Base Salary through
the Date of Termination at the annual rate in effect at the time such
termination occurs, and thereafter the Company shall have no further obligation
to the Executive under this Agreement, except the Company shall continue to have
its obligations (i) to pay deferred compensation under sub-Sections 5.02(c),
5.05(b) and 5.05(c) hereof, (ii) to pay accumulated benefits under benefits
plans or arrangements under Article 5, (iii) to reimburse the Executive for
expenses incurred pursuant to Section 5.04(a) hereof prior to termination, and
(iv) to indemnify the Executive under Article 10 hereof.
7.04. OTHER. If the Company shall terminate the Executive's employment
other than for Disability or Cause or if the Executive shall terminate his
employment for Good Reason, then:
(a) The Company shall pay the Executive, or his legal representative in
the case of the Executive's death, his full Base Salary through the Date of
Termination at the annual rate then in effect, and Bonus and stock option
for the year of termination as described in Sections 5.02 and 5.03 hereof;
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(b) For the remaining stated Term of this Agreement after the Date of
Termination the Company shall arrange to provide the Executive, and/or any
dependent or other person receiving such benefits prior to the Executive's
death or other termination, with life, disability, accident and health
insurance benefits substantially similar to those which the Executive
and/or such dependent or other person was receiving immediately prior to
the Date of Termination, provided that benefits otherwise receivable by the
Executive and/or such dependent or other person pursuant to this
sub-Section 7.04(c) shall be reduced to the extent comparable benefits are
actually received by the Executive and/or such dependent or other person
from any person other than the Company during the period from the Date of
Termination until the expiration of the stated Term of this Agreement, and
any such benefits actually received by the Executive and/or such dependent
or other person from any person other than the Company shall be promptly
reported in writing to the Company;
(c) The Company shall arrange to provide, and the Executive or, in the
case of the Executive's death, his legal representative or named
beneficiary, shall be entitled to receive, all benefits payable to the
Executive or his named beneficiary under any plan or agreement of the
Company relating to retirement in effect on the Date of Termination and
selected by the Executive or such representative or beneficiary; and
(d) The Executive shall not be required to mitigate the amount of any
payment provided for in this Article 7 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Article
7 be reduced by any compensation earned by the Executive as the result of
employment by another employer after the Date of Termination, or otherwise.
ARTICLE 8. NON-TRANSFERABILITY.
Neither the Executive, his widow, nor his estate shall have the power to
transfer, assign, anticipate, mortgage or otherwise encumber any of the benefits
payable hereunder, nor will said benefits be subject to seizure for the payment
of any debts of, or judgments against, any of such persons, or be transferable
by operation of law in the event of bankruptcy or insolvency of any such
persons.
ARTICLE 9. PROPRIETARY INFORMATION AND NON-COMPETITION.
The Executive acknowledges and agrees that the duties of the Executive
under the terms of this Agreement will involve the use and creation of customer
lists, forecasting techniques and know-how, software, services, future plans and
other trade secrets of the Company in connection with its business which are
valuable, proprietary, confidential and not in the public domain ("Proprietary
Information"). Accordingly, the Executive agrees as follows:
9.01. CONFIDENTIALITY. During the period of his employment by the Company,
except as may be required by applicable law or legal process, the Executive
shall not, without the prior written consent of the Board or a person authorized
thereby, disclose, divulge, permit access to
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or communicate, directly or indirectly, any Proprietary Information to any
person, other than an employee of the Company or one of its Affiliates or a
person to whom disclosure is reasonably necessary or appropriate in connection
with the performance by the Executive of his duties hereunder.
9.02. NO COMPETITION. If the Company terminates the Executive's employment
hereunder for Cause, the Executive agrees that during a period of one (1) year
after the Date of Termination, the Executive will not, directly or indirectly,
own, manage, operate, control or participate in the ownership, management,
operation or control of, or be connected with as an officer, employee, partner,
director or otherwise, or have any financial interest in or aid or assist anyone
else in the conduct of, any business enterprise in competition with the Company
in any place in the United States in which the Company has offices or conducts
business or contemplates conducting business.
Ownership of not to exceed five percent (5%) of the voting stock of any
publicly held corporation shall not constitute a violation hereof. If the
Company terminates the Executive's employment other than for Cause or if the
Executive terminates his employment for Good Reason, or if the Term of this
Agreement expires, the Executive will not be subject to the restrictions of this
Section 9.02.
9.03. INJUNCTIVE RELIEF. The Executive acknowledges and agrees that by
reason of the irreparable harm that would be sustained by the Company in the
event of a breach by the Executive of the covenants contained in this Article 9
for which there would be no adequate remedy at law, the Company shall be
entitled to enforcement of the covenants contained in this Article 9 by
injunction or decree of specific performance by a court of competent
jurisdiction, in addition to any other rights or remedies that the Company may
have under this Agreement or otherwise.
9.04. RIGHTS TO PROPRIETARY INFORMATION. All Proprietary Information
developed by the Executive during the period of his employment by the Company
shall be the property of the Company and the Executive shall execute any and all
documents reasonably requested by the Company in order to substantiate the
Company's rights to such Proprietary Information.
ARTICLE 10. INDEMNIFICATION.
10.01. INDEMNIFICATION. To the fullest extent not prohibited by law, the
Company shall indemnify the Executive against all Expenses, judgments, fines,
amounts and penalties (hereinafter referred to as "Losses") incurred by him in
connection with the defense or settlement of any Proceeding in which he is a
party, or in which he is threatened to be made a party or is otherwise involved,
by reason of the fact that he is or was an officer and/or director of the
Company or any Affiliate thereof, or is or was serving at the request of the
Company as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust or enterprise.
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10.02. INDEMNIFICATION PROCEDURE. Indemnification by the Company of Losses
incurred by the Executive pursuant to this Article 10 shall be made upon
delivery to the Company of (i) an invoice itemizing such Losses certified as
correct by the Executive, and (ii) an undertaking by or on behalf of the
Executive, to repay all amounts so advanced if it shall ultimately be determined
by final judicial decision from which there is no further right to appeal that
the Executive is not entitled to be indemnified for such amounts under this
Article 10 or otherwise. If a claim for indemnification under this Article 10 is
not paid in full by the Company within thirty (30) days after it has been
received in writing by the Company, except in the case of a claim for
reimbursement of Expenses, in which case the applicable period shall be ten (10)
days, the Executive may at any time thereafter institute proceedings against the
Company to recover the unpaid amount of such claim.
10.03. SURVIVAL. The provisions of this Article 10 shall survive the
expiration or termination of the Executive's employment and/or this Agreement
for any reason whatsoever other than (i) termination by the Company for Cause or
(ii) termination by the Executive other than for Good Reason.
ARTICLE 11. GOVERNING LAW.
This Agreement and all transactions pursuant thereto shall be governed by
and construed in accordance with the internal laws of the State of New York.
ARTICLE 12. DISPUTE RESOLUTION AND ARBITRATION.
12.01. ARBITRATION. In the event of any dispute, controversy, claim or
difference that should arise between the parties out of or relating to or in
connection with this Agreement or the breach thereof, the parties shall endeavor
to settle such conflicts amicably among themselves. Should they fail to do so,
the matter in dispute shall be settled by arbitration in New York, New York, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association.
12.02. AWARD TO BE FINAL. Any award or judgment of the arbitrators shall be
final and binding on the parties and shall be enforceable in any court of
competent jurisdiction.
12.03. ATTORNEYS' FEES. All reasonable attorneys' fees incurred by the
prevailing party in the resolution of any dispute, controversy, claim or
difference hereunder shall be borne by the losing party.
ARTICLE 13. ASSIGNMENT.
13.01. BY THE PARTIES. Neither this Agreement, nor any rights hereunder,
may be assigned by the Executive or the Company without the prior written
consent of the other party.
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13.02. SUCCESSORS. This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts would have been still payable to him had he continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisee, legatee, or other designee
or, if there be no such designee, to the Executive's estate.
ARTICLE 14. MISCELLANEOUS.
14.01. ENTIRE AGREEMENT. This Agreement, all Schedules, and Exhibits
attached hereto, and all agreements and instruments to be delivered by the
parties hereto constitute the entire agreement among the parties hereto
pertaining to the subject matter hereof and thereof and supersede all
negotiations, preliminary agreements and all prior or contemporaneous
discussions and understandings of the parties hereto in connection with the
subject matter hereof, whether oral or written, and except as aforesaid, are
intended as a complete and exclusive statement of the terms of the agreement
among the parties.
14.02. BINDING EFFECT. Except as otherwise provided in this Agreement,
every covenant, term, and provision of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective legal
representatives, successors, transferees, heirs and permitted assigns.
14.03. AMENDMENTS. Neither this Agreement nor any part hereof may be
amended, waived, changed or in any way modified except in a writing executed by
the parties hereto with the same formality as this Agreement.
14.04. WAIVER. The failure by any party to insist upon strict performance
of any covenant or condition of this Agreement, in any one or more instances,
shall not be construed as a waiver or relinquishment of any such covenant or
condition in the future, but the same shall be and remain in full force and
effect.
14.05. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party hereto. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
14.06. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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14.07. HEADINGS. Article, Section, other headings and the table of
contents contained in this Agreement are for reference purposes only and are not
intended to describe, interpret, define, or limit the scope, extent, or intent
of this Agreement or any provision hereof, and shall not affect in any way the
meaning or interpretation of this Agreement.
14.08. FORM AND GENDER. Where the context and circumstances so require,
the use of the singular form of a word shall be deemed to include the plural
form thereof (and vice versa) and the masculine gender shall be deemed to
include the feminine and neuter genders thereof (and vice versa).
14.09. CONSTRUCTION. Every covenant, term, and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against any party.
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ARTICLE 15. NOTICES.
Any notice, demand, request or other communication which by any provision
of this Agreement is required or permitted to be given to or served on any party
hereto shall be given in writing (setting forth in reasonable detail the purpose
of such notice, demand, request or communication and identifying the provision
of this Agreement pursuant to which such notice, demand, request or
communication is given), and shall be deemed to be effective for all purposes
when (i) delivered personally, (ii) sent by facsimile transmission, or (iii)
sent by registered or certified mail, return receipt requested, postage prepaid,
to the address set forth below for such party:
(a) If to the Company: ▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Executive: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement as of the day and year first above written.
▇▇▇▇▇▇▇.▇▇▇, INC. Executive
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------- -------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Operating Officer
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SCHEDULE "A"
[As per Articles 2 and 4 of the Agreement]
Duties of the Executive:
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(i) Serve as Chief Executive Officer of the Company;
(ii) Serve as a Chairman of the Board of Directors of the Company; and
(iii) Serve as an officer and director of the Company's subsidiaries, if any.
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