EXHIBIT 10.17
EMPLOYMENT AGREEMENT WITH XXXX X. XXXX
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made this 1st day of January, 1995 by
and between Xxxx X. Xxxx, an individual with offices at 0 Xxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000 ("Employee") and Xxxx Industries Inc., a Utah
corporation ("the Company"), with its principal offices at 0 Xxxx Xxxxx, Xxxxx
000, Xxxxxx, XX 00000
WHEREAS, Employee has over 25 years of experience in mergers,
acquisitions, and corporate finance and management; and,
WHEREAS, the Company desires to employ Employee to serve the Company on
the Company's Board of Directors and as its Chief Executive Officer, and to
provide advice concerning mergers and acquisitions, corporate finance, day to
day management, guidance with respect to general business decisions, and other
duties commonly performed by the Chief Executive Officer of a publicly-held
company.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and
Employee agree as follows:
1. Employment
The Company hereby employs Employee as the Company's Chief Executive
Officer, to provide the Company with advice and services, on an
as-needed basis, effective the date hereof and continuing through the
Employment Period (as defined below).
2. Scope of Services
The services to be provided by Employee under this Agreement shall be
all those necessary or proper to evaluate and advise on transactions
between the Company and third parties.
3. Term of Employment
This Agreement shall have an initial term of five (5) years (the
"Employment Period"). Thereafter, this Agreement will automatically be
extended on a year-to-year basis unless Employee or the Company shall
serve written notice on the other party terminating the Agreement;
provided, however, that Employee and the Company shall agree in writing
as to Employee's continuing compensation. Notice to terminate shall be
in writing and shall be delivered at least ten (10) days prior to the
end of the Employment Period, as extended, as provided herein.
4. Duties of Employee
Employee shall devote that amount of time, as necessary, on a monthly
basis, to fulfilling his obligations under this Agreement. The
particular amount of time may vary from day to day or week to week. The
Company understands that Employee serves as an officer and/or director
for other companies which require some of Employee's professional time
but which do not conflict
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with Employee's obligations hereunder. Employee agrees that he will at
all times, faithfully and to the best of his experience, ability, and
talents, perform all the duties required of him under this Agreement.
5. Compensation
Compensation to Employee for services provided pursuant to this
Agreement shall consist of the following:
A) Fixed Annual Compensation. In consideration for the Services
provided hereunder, the Company shall pay to Employee an annual
salary ("Fixed Annual Compensation") at the rate of $54,000 per
annum. Fixed Annual Compensation payable to Employee by the
Company hereunder shall be paid at such times and in such amounts
as the Company may designate in accordance with the Company's
usual practices, but in no event less than once monthly.
B) Compensation Pool. In addition to the Fixed Annual Compensation,
Employee shall be entitled to participate in the profits of the
Company by way of a Compensation Pool Agreement, a copy of which
is attached hereto as Exhibit "A" (the "Compensation Pool").
The Company shall account to Employee no less frequently than
quarterly with respect to the Compensation Pool beginning with
the Effective Date and continuing for a period of five (5) years
thereafter. Statements, which shall be accompanied by payments of
any amounts shown to be due Employee, shall be delivered to
Employee within forty-five (45) days following the close of the
applicable accounting period (60 days with respect to annual
accountings). Employee shall have the right, exercisable not more
frequently than once annually, to audit the Company's books and
records, which audits shall be performed by a reputable firm of
certified public accountants and which shall not unreasonably
interfere with the operation of the Company's business.
C) Business Expense Reimbursement. Employee shall be entitled to an
aggregate of $1,000 ------------------------------ per month for
employee business expenses in excess of those for which Employee
makes an accounting to the Company. To the extent that Employee
does not utilize all or any portion of the foregoing expense
reimbursement account in any given month, the unused amount shall
be cumulated and carried forward from month-to-month until used.
Employee shall also be entitled to reimbursement of all
reasonable and customary business travel and entertainment
expenses for which Employee makes an adequate accounting to the
Company. The determination of the adequacy of the accounting and
reasonableness of the expenses shall be within the reasonable
discretion of the Company's independent certified accountants
taking into consideration the substantiation requirements of the
Internal Revenue Code of 1986, as amended (the "Code"). If
verification is provided, the non-deductibility of such expenses
for tax purposes shall not affect Employee's right to
reimbursement.
D) Additional Incentive Compensation. In addition to the Fixed
Annual Compensation and the Compensation Pool (if any) to be
provided hereunder to Employee by the Company, the Company shall
provide Employee with such additional incentive compensation
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("Additional Incentive Compensation") in the form of cash, securities
of the Company, stock options or a deferred compensation arrangement
customarily utilized for top management executives in the leisure and
entertainment industries, and shall include but not be limited to the
following:
i) Life Insurance Policy - a split rate life insurance policy for
the benefit of --------------------- Employee in the amount of
not less than $1,000,000 (the "Life Insurance Policy"). The
Company agrees to make all premium payments under the Life
Insurance Policy. Employee shall be entitled to name the Luke
Family Trust u/t/d May 20, 1990 (the "Trust"), the Alison Xxxxxx
Xxxx Trust (the "Alison Trust") or the Xxxxxxx Xxxxx Xxxx Trust
(the "Xxxxxxx Trust"), or in combination of them, as the
beneficiary or beneficiaries of such policy. Upon the death of
Employee during the Initial Employment Period of this Agreement,
and upon the payment of benefits pursuant to the Life Insurance
Policy, such benefits shall be allocated as follows: (i) the
Company shall be entitled to reimbursement of all premiums
actually paid under such policy plus six percent (6%) per annum
interest on such amounts actually paid, and (ii) the beneficiary
or beneficiaries named under such policy shall be entitled to
receive the remainder of such benefits. Employee agrees that the
Company may secure additional insurance on Employee's life for
the benefit of the Company and that Employee shall cooperate with
the Company in connection with the application process for such
insurance.
ii) Directors and Officers Liability Insurance - insurance generally
maintained for by ------------------------------------------
publicly-held companies for the benefit of their directors and
officers against all costs, charges and expenses whatsoever
incurred or sustained in connection with any action, suit or
proceeding to which such officers or directors may be made a
party by reason of being or having been a director or officer.
Such insurance coverage shall be provided by the Company and the
Company shall use its best efforts to cause such insurance to be
maintained in effect for not less than six (6) years from the
date of termination of this Agreement, or from the date of a
change in control (as defined herein), whichever is the longer
period, and containing terms and conditions that are acceptable
to Employee.
iii) Fringe Benefits. In addition to the foregoing, upon request by
Employee, --------------- Employee shall receive and shall
continue to receive such fringe benefits ("Fringe Benefits") as
he now enjoys and as shall become available in the future to
those with similar executive positions in the leisure and
entertainment industries, including without limitation: (i) club
memberships (including initiation fees, annual dues and other
recurring expenses) in an amount not to exceed $20,000 in each
year of the Initial Employment Period; (ii) first-class air
travel and private air travel (if first class air travel is not
practicable in Employee's sole judgment) for all trips made by
Employee outside of the United States in connection with the
Services provided to the Company; (iii) the lease of an
automobile of Employee's choice for use by Employee, and
reimbursement for all expenses incurred in connection with such
automobile, and (iv) reimbursement of Employee's personal legal
and accounting expenses related to Employee's association with
the
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Company in an amount not to exceed $50,000 in each year of the
Initial Employment Period.
iv) Stock Option. The Company agrees to execute with Employee a Stock
Option ------------ Agreement (the "Option") in which the Company
will grant Employee stock options to purchase One Million
(1,000,000) shares of common stock of the Company (the "Option
Shares") at one hundred ten percent (110%) of the Market Value
(as defined herein) as of the date of the Option. Such Options
shall vest to Employee immediately upon execution of the Option.
In the event of any change in the common stock of the Company by
reason of stock dividends, stock splits, reverse stock splits,
spin-offs, mergers, recapitalizations, combinations, conversions,
exchanges of shares or the like or the issuance of shares of
common stock or any class of securities directly or indirectly
convertible into or exchangeable for common stock after the date
hereof, the number and kind of shares subject to the Option shall
be appropriately adjusted.
For the purpose of this Agreement, "Market Price" shall mean the
average bid price on the date of exercise of the Option, or any
portion thereof, or, in case no sale takes place on such day, the
closing bid price for the last executed trade, in each case on
NASDAQ or the securities exchange to which the shares of common
stock of the Company (or its successor, if any) are listed or
admitted to trading or, if not listed or admitted to trading, the
average of the closing bid price as furnished by two members of
the National Association of Securities Dealers Inc. selected by
Employee for that purpose. In the absence of one or more such
quotations, the Market Price shall be based upon the book value
per share calculated on the basis of the Company's most recent
financial statements.
6. Registration of the Company Shares
The Company will register the Option Shares with the Securities and
Exchange Commission on a Form S-1 or other applicable registration
statement within one (1) year from the date hereof. Option Shares
issued prior to registration will be done so only in reliance on
exemptions from registration provided by Section 4(2) of the Securities
Act of 1933 (the "Act"), Regulation D of the Act, and applicable state
securities laws. Such issuance shall be in reliance on representations
and warranties of Employee set forth below, to be updated upon
exercise.
7. Opportunities Rejected by the Company
Opportunity Compensation. If, commencing July 1, 1993, during the
Initial Employment Period, because of the Company's financial
condition, the Board elects not to proceed to acquire any project or
potential acquisition submitted, identified and/or selected by
Employee, then Employee, upon notification to the Company's Board,
shall be entitled to submit the project elsewhere (a "Opportunity") and
Employee shall be entitled to any and all fees or profits resulting
from Employee's referral or placement of such Opportunity (the
"Opportunity Compensation"); provided, however, that (i) Opportunity
Compensation shall be limited to four (4) Opportunities in each
calendar year during the Initial Employment Period; (ii) Employee's
efforts related to such Opportunity shall be of an incidental nature
and shall not interfere with Employee's Services
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4
to the Company other than in a de minimis manner; (iii) the Opportunity
may not be offered to a third party on terms more favorable to such
third party than the terms proposed to the Company at the time that the
Company's Board elected not to proceed.
8. Place of Services
The Services provided by Employee hereunder will be performed primarily
through the Company's offices in Irvine, California, except as
otherwise mutually agreed by Employee and the Company. It is understood
and expected that Employee may make contacts with persons and entities
and perform services in other locations as deemed appropriate and
directed by the Company.
9. Status
Employee will act as an employee in the performance of duties under
this Agreement. Accordingly, the Company will be responsible for
payment of all federal, state, and local taxes on compensation paid
under this Agreement, including income and social security taxes,
unemployment insurance, and any other taxes as may be required.
10. Termination
(A) Termination for Disability. If, during the Employment Period,
Employee shall be unable to provide the Services for three (3)
consecutive months because of illness, accident, or other
incapacity, the Company shall have the right to terminate this
Agreement upon written notice to Employee within ten (10) days
after the end of any such three (3) month period. Termination
under this Paragraph shall be effective upon receipt by
Employee of the written notice.
(B) Death. In the event of Employee's death, this Agreement and
all rights and obligations hereunder shall immediately be
terminated.
(C) Termination for Cause. The Company may, at its option,
terminate this Agreement by giving written notice of
termination to Employee without prejudice to any other remedy
to which the Company may be entitled either at law, in equity,
or under this Agreement, if Employee:
(i) Willfully breaches or neglects the duties that Employee
is required to perform under the terms of this
Agreement;
(ii) Fails to promptly comply with and carry out all
directives of the Company's Board of Directors; or
(iii) Is convicted of committing any dishonest or unlawful
act.
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(D) Termination Other Than For Cause. This Agreement shall terminate
immediately on the occurrence of any one of the following events:
(i) The occurrence of circumstances, in the judgment of the
Company's Board of Directors, that make it impracticable for
the Company to continue its present line(s) of business;
(ii) The decision of and upon notice by Employee to voluntarily
terminate this Agreement;
(iii) The loss by Employee of legal capacity;
(iv) If the Company institutes, or has instituted against it any
bankruptcy proceeding for reorganization for rearrangement
of the party's financial affairs;
(v) If the Company has a receiver of its assets or property
appointed because of insolvency;
(vi) If the Company makes a general assignment for the benefit of
creditors; or
(vii)If the Company otherwise becomes insolvent or unable to
timely satisfy all obligations in the ordinary course of
business.
(E) Effect of Termination on Compensation. In the event of the
Termination Other Than For Cause prior to the completion of the
Employment Period, Employee shall be entitled to a lump sum
payment equal to the balance of all compensation due to Employee,
including but not limited to salary and benefits under this
Agreement, and to the rights to exercise any remaining,
previously unexercised Options. Notwithstanding anything
contained herein to the contrary, Employee's right to exercise
any exercised Options shall continue for two (2) years following
the date of termination.
13. Representations and Warranties of the Company
The Company represents and warrants to Employee that:
(A) Corporate Existence. The Company is a corporation duly organized,
validly existing, and in good standing under the laws of the
State of Utah, with corporate power to own property and carry on
its business as it is now being conducted.
(B) Financial Information. The Company has or will cause to be
delivered concurrently with the execution of this Agreement,
copies of the Disclosure Documents (as defined in Paragraph
14(D)(1)) which accurately set forth the financial condition of
the Company as of the respective dates of such documents.
(C) Capitalization. The capitalization of Company is, as of the date
hereof, comprised of Thirty Million (30,000,000) shares of
authorized $.01 par value common stock of which no more than
Twenty Eight Million (28,000,000) shares are issued and
outstanding, with
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Two Hundred Fifty Thousand (250,000) shares of Series B
Convertible Preferred Stock issued and outstanding and Eighteen
Million (18,000,000) Warrants and Options to purchase common
stock which, upon exercise will result in at least Eighteen
Million (18,000,000) additional shares of common stock being
issued. All issued and outstanding shares are legally issued,
fully paid, and nonassessable, and are not issued in violation of
the preemptive or other right of any person.
(D) No Conflict. This Agreement has been duly executed by the Company
and the execution and performance of this Agreement will not
violate, or result in a breach of, or constitute a default in any
agreement, instrument, judgment, decree or order to which the
Company is a party or to which the Company is subject, nor will
such execution and performance constitute a violation or conflict
of any fiduciary duty to which the Company is subject.
(E) Full Disclosure. The information concerning the Company provided
to Employee pursuant to this Agreement is, to the best of the
Company's knowledge and belief, complete and accurate in all
material respects and does not contain any untrue statement of a
material fact or omit to state a material fact required to make
the statements made, in light of the circumstances under which
they were made, not misleading.
(F) Date of Representations and Warranties. Each of the
representations and warranties of the Company set forth in this
Agreement is true and correct at and as of the date of execution
of this Agreement.
14. Representations and Warranties of Employee
Employee represents and warrants to the Company that he understands and
acknowledges that any Option Shares issued prior to registration will
be so issued in reliance on the exemptions from registration provided
by Section 4(2) of the Act Regulation D, and applicable state
securities laws. Representations and warranties by Employee in this
paragraph will be used and relied upon by the Company to determine
whether any issuance of Option Shares may be made to Employee pursuant
to Section 4(2) of the Act and Regulation D and applicable state
securities laws, and Employee will notify the Company immediately of
any material changes to the representations made herein. In this
regard, Employee represents and warrants that:
(A) Disclosure Documents. Employee has been furnished with a copy of
the Company's most -------------------- recent Annual Report on
Form 10-K and all reports or documents required to be filed under
Sections 13(a), 14(a), and 15(d) of the Securities and Exchange
Act of 1934, as amended, including but not limited to quarterly
reports on Form 10-Q, current reports on Form 8-K, and proxy
statements (the "Disclosure Documents"). In addition, Employee
has been furnished with a description of the Company's capital
structure and any material changes in the Company's financial
condition that may not have been disclosed in the Disclosure
Documents.
(B) Employee Suitability. By reason of Employee's knowledge and
experience in financial and business matters in general, and
investments in particular, Employee is capable of evaluating the
merits and risks of this transaction and in bearing the economic
risks of an
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7
investment in the Option Shares and fully understand the speculative
nature of such securities and the possibility of such loss. Further,
Employee represents to the Company:
(1) Employee is fully aware that any Option Shares issued to Employee
prior to registration will be "Restricted Securities" as defined
by Rule 144 of the Act and that any resale of such securities by
Employee may be governed by Rule 144. Employee is further aware
of the specific restrictions on resale of such securities
contained in Rule 144.
(2) Employee will not sell, transfer or otherwise dispose of any
Option Shares issued or reserved for issuance hereunder prior to
registration except in compliance with the Act.
(3) Any and all certificates representing the Option Shares issued
prior to registration of such shares, and any and all securities
issued in replacement thereof or in exchange therefore, shall
bear the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") and are
"restricted securities" as that term is defined in Rule 144 under
the Act. The shares may not be offered for sale, sold, or
otherwise transferred except pursuant to an effective
Registration Statement under the Act or pursuant to an exemption
from registration under the Act, the availability of which is to
be established to the satisfaction of the Company."
15. Indemnification
the Company and Employee agree to indemnify, defend and hold each other
harmless from and against all demands, claims, actions, losses,
damages, liabilities, costs and expenses, including without limitation,
interest, penalties and attorneys' fees and expenses asserted against
or imposed or incurred by either party by reason of or resulting from a
breach of any representation, warranty, covenant, condition, or
agreement of the other party to this Agreement.
the Company further agrees to indemnify defend and hold Employee
harmless from and against all demands, claims, actions, losses,
damages, liabilities, costs and expenses, including without limitation,
interest, penalties and attorneys' fees and expenses asserted against
or imposed or incurred by Employee arising from Employee's fulfillment
of his duties as an officer and director to the maximum extent
permitted by the Utah Corporation Code.
In addition to the foregoing indemnity, the Company agrees to indemnify
and hold harmless Employee, and each other person controlling Employee
or any of its affiliates (collectively, the "Indemnified Parties" and
each an "Indemnified Party"), within the meaning of either Section 15
of the Act, or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") from and against any losses, claims,
damages and liabilities (or actions in respect thereof), joint or
several, which are related to or arise out of or are based upon any
untrue or alleged untrue statement of material fact or any omission or
alleged omission of material fact required to be stated or necessary to
make other statements, in light of the circumstances in which they are
made, not
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misleading contained in any document, report or material provided to an
relied upon by Employee to prepare any registration statement,
prospectus, prospectus supplement license application or other
materials or reports filed by the Company with any regulatory agency.
16. Inside Information - Securities Laws Violations
In the course of the performance of his duties, Employee may become
aware of information which may be considered "inside information"
within the meaning of the Federal Securities Laws, Rules and
Regulations. Employee acknowledges that his use of such information to
purchase or sell securities of the Company, or its affiliates, or to
transmit such information to any other party with a view to buy, sell
or otherwise deal in the securities of the Company or its affiliates is
prohibited by law and would constitute a breach of this Agreement and
notwithstanding the provisions of this Agreement will result in the
immediate termination of the Agreement.
17. Miscellaneous
(A) Subsequent Events. Employee and the Company each agree to
notify the other party if, subsequent to the date of this
Agreement, either party incurs obligations which could
compromise their efforts and obligations under this
Agreement.
(B) Amendment. This Agreement may be amended or modified at any
time and in any manner only by an instrument in writing
executed by the parties hereto.
(C) Further Actions and Assurances. At any time and from time to
time, each party agrees, at its or their expense, to take
actions and to execute and deliver documents a may be
reasonably necessary to effectuate the purposes of this
Agreement.
(D) Waiver. Any failure of any party to this Agreement to comply
with any of its obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed. The failure of any party to this
Agreement to enforce at any time any of the provisions of
this Agreement shall in no way be construed to be a waiver
of any such provision or a waiver of the right of such party
thereafter to enforce each and every such provision. No
waiver of any breach of or non-compliance with this
Agreement shall be held to be a waiver of any other or
subsequent breach or non-compliance.
(E) Assignment. Neither the Company nor employee shall assign
their rights or obligations under the Agreement without the
prior written consent of the other. However, the Options
granted to Employee shall be assignable by Employee without
the consent of or notice to the Company.
(F) Notices. Any notice or other communication required or
permitted by this Agreement must be in writing and shall be
deemed to be properly given when delivered in person to an
officer of the other party, when deposited in the United
States mails for transmittal by certified or registered
mail, postage prepaid, or when deposited with a public
telegraph company for transmittal, or when sent by facsimile
transmission charges prepared, provided that the
communication is addressed:
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(1) In the case of the Company:
Xxxx Industries Inc.
0 Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
(2) In the case of Employee:
Xxxx X. Xxxx
0 Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other person or address designated by the Company or
Employee to receive notice.
(G) Headings. The section and subsection headings in this
agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this
Agreement.
(H) Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one
and the same instrument.
(I) Governing Law. This Agreement was negotiated and is being
contracted for in the State of California, and shall be
governed by the laws of the State of California,
notwithstanding any conflict-of-law provision to the
contrary.
(J) Binding Effect. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties,
their respective heirs, administrators, executors,
successors, and assigns.
(K) Entire Agreement. This Agreement contains the entire
agreement between the parties hereto and supersedes any and
all prior agreements, arrangements, or understandings
between the parties relating to the subject matter of this
Agreement. No oral understan dings, statements, promises, or
inducements contrary to the terms of this Agreement exist.
No representations, warranties, covenants, or conditions,
express or implied, other than as set forth herein, have
been made by any party.
(L) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in
full force and effect.
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10
(M) Facsimile Counterparts. A facsimile, telecopy, or other
reproduction of this Agreement may be executed by one or
more parties hereto and such executed copy may be delivered
by facsimile of similar instantaneous electronic
transmission device pursuant to which the signature of or on
behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective
for all purposes. At the request of any party hereto, all
parties agree to execute an original of this Agreement as
well as any facsimile, telecopy or other reproduction
hereof.
(N) Termination of Any Prior Agreements. Effective the date
hereof, all prior rights of Employee relating to the accrual
or payment of any form of compensation or other benefits
from the Company based upon any agreements other than this
Agreement, whether written or oral, entered into prior to
the date hereof, are hereby terminated.
(O) Consolidation or Merger. Subject to the provisions hereof,
in the event of a sale of the Company or consolidatiion or
merger of the Company with or into another corporation or
entity, or stock, or the sale of substantially all of the
stock, of the Company, or consolidation or merger of the
Company with or into another corporation or entity, or the
sale of substantially all of the operating assets of the
Company to another corporation, entity or individual, the
Company may assign its rights and obligations under this
Agreement to its successor-in-interest and such
successor-in-interest shall be deemed to have acquired all
rights and assumed all obligations of the Company hereunder;
provided, however, that in no event shall the duties and
services of Employee provided for in Paragraph 2 hereof, or
the responsibilities, authority or powers commensurate
therewith, change in any material respect as a result of
such sale of stock, consolidation, merger or sale of assets.
(P) Time is of the Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective the date first written above.
"Employee"
/s/ Xxxx X. Xxxx
--------------------------------------------
Xxxx X. Xxxx
"Company"
XXXX INDUSTRIES INC.
a Utah corporation
By:--------------------------------------
Name:
Title:
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