Exhibit 10.27
EUROTECH, LTD.
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement" or "Employment Agreement"),
is dated as of February 28, 2002, (the "Effective Date"), by and between
Eurotech, Ltd., a District of Columbia corporation (the "Company") and Xxxx X.
Xxxxx (the "Employee").
WHEREAS, the Company wishes to employ the Employee as Chief Executive
Officer and President of the Company on the terms and conditions set forth in
this Agreement and the Employee wishes to be employed by the Company as Chief
Executive Officer and President on the terms and conditions set forth in this
Agreement.
WHEREAS, it is contemplated that the Company nominate and endorse the
Employee for membership on the Company's Board of Directors at the next Annual
Meeting of the Shareholders of the Company.
WHEREAS, the Employee shall have the option to be employed as Chairman
effective as of March 1, 2003.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties, intending to be legally bound, hereby agree as
follows:
1. EMPLOYMENT. The Company hereby employs the Employee and the Employee
hereby accepts employment on the terms and conditions hereinafter set forth.
2. TERM. Subject to the provisions for termination hereinafter
provided, the initial term of this Agreement shall be two years commencing on
March 1, 2002 and terminating at 11:59 p.m. New York City time on February 29,
2004 (the "Term").
3. COMPENSATION.
(a) Salary. For all services provided by the Employee under this
Agreement as Chief Executive Officer and President of the
Company, the Company shall pay a base annual salary to the
Employee of $210,000, less payroll deductions and all required
withholdings, in 24 equal semi-monthly installments payable on
the first and fifteenth days of each month.
(b) Benefits. The Company shall provide the Employee with medical
and dental coverage and any other benefits provided to other
senior executives or directors of the Company.
(c) Stock Options. Contemporaneously with the execution of this
Agreement, or as soon thereafter as practicable, the Company
shall issue to the Employee a non-qualified stock option grant
to purchase 1,300,000 shares of the common stock of the
Company, par value $.00025 per share, pursuant to the terms
and conditions of a stock option agreement dated
contemporaneously herewith, which, when signed by the Parties,
shall be incorporated herein by reference (the "Grant").
(d) Bonus. In addition to the Employee's salary, the Company
agrees that the Employee shall receive an annual bonus to be
determined at the discretion of the Board of Directors to be
paid on or before December 31 of each year, commencing with
the year ending December 31, 2002. The annual bonus shall be
based on the performance of the Employee and the financial
results and operations of the Company.
4. CHAIRMAN. In addition to the positions of Chief Executive Officer
and President, the Employee shall have the exclusive option to assume the
position of Chairman of the Company as of March 1, 2003. In the event that the
Employee wishes to exercise this option, he shall deliver, on or before 5:00
p.m. New York City time on February 1, 2003 (the "Election Deadline"), written
notice to the Board of Directors of the Company by hand delivery, expressing his
desire to assume the position of Chairman. Upon the receipt of such notice, the
Board of Directors of the Company shall take such action necessary to remove the
then current Chairman and elect the Employee to the position of Chairman. If the
Employee does not so give written notice to the Board of Directors indicating
such desire to become Chairman on or before the Election Deadline, this option
shall expire by its own terms. Such failure to so give such notice shall not, of
itself, affect the Employee's position as Chief Executive Officer and President.
If such notice is received by the Board of Directors on or before the Election
Deadline but the Board of Directors do not elect the Employee to the position of
Chairman on or before March 1, 2003, the Employee may immediately terminate his
employment hereunder and, in such case, shall receive the Entire Severance
Payment pursuant to the terms of Section 11(c).
5. ADDITIONAL CONDITIONS SUBSEQUENT OF EMPLOYMENT. As conditions
subsequent to the Employee's employment hereunder, the following events shall
occur. Notwithstanding the provisions of Section 11(e), if any of the following
conditions subsequent do not occur within thirty days after the date required,
the Employee may terminate his employment hereunder and, in such case, shall
receive the entire Severance Payment pursuant to the terms of Section 11(c).
(a) Initial Nomination for Board of Directors. The Company shall
nominate and endorse the Employee for membership on the
Company's Board of Directors at the annual meeting of the
Shareholders of the Company to be held in March 2002 (the
"2002 Shareholders Meeting"), or any duly authorized
postponement thereof. The Company shall take all reasonable
efforts to effectuate the election of the Employee to the
Board of Directors during the Term of this Agreement.
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(b) Compensation Committee. Promptly after the 2002 Shareholders
Meeting, the Employee shall be elected as a member and the
chairman of the Compensation Committee of the Board of
Directors.
(c) Subsequent Nomination for Board of Directors. At every meeting
of the Shareholders of the Company during the Term of this
Agreement at which Directors of the Company are elected (but
not including the 2002 Shareholders Meeting), the Board of
Directors shall nominate and endorse those persons for
membership on the Company's Board of Directors that have been
set forth by the Employee in a writing delivered to the Board
of Directors prior to the earlier of (i) the date on which the
notice of such meeting must be sent to the Shareholders of the
Company or (ii) the date on which a preliminary proxy
statement must be filed with the United States Securities and
Exchange Commission.
(d) Directors and Officers Insurance. At all times during the Term
and any extensions thereto, the Company shall maintain
directors and officers liability insurance ("D&O Insurance")
for the benefit of the Employee and other Directors and
Officers of the Company in an aggregate amount not less than
Ten Million dollars ($10,000,000) or such other amount agreed
upon by the Employee. The Company shall immediately notify the
Employee of any lapse in the D&O Insurance. The form of any
D&O Insurance policy shall be acceptable to the Employee,
which acceptance shall not be unreasonably withheld.
(e) Board and Committee Meetings. The Company shall have at least
four regularly scheduled meetings of the Board of Directors in
person (or by telephone) each year, as well as regularly
scheduled meetings of the Audit Committee and Compensation
Committee of the Board of Directors.
(f) Director/Officer/Consultant Agreements. No individual
director, officer or consultant of the Company shall bind the
Company to a material agreement or make any material
representations or warranties, unless such agreements or
representations or warranties shall have been reviewed and
approved by the Employee in writing prior to the taking of
such actions or making of such representations or warranties.
For purposes of this paragraph, any action shall be deemed
"material" if the monetary value of such action exceeds
$5,000.
(g) Public Statements. All documents filed with the United States
Securities and Exchange Commission or any other government or
non-government regulatory agency, press releases, written
communications with shareholders of the Company, and any other
public documents shall be reviewed and approved by the
Employee in writing prior to release, subject to applicable
law and review by the accountants and legal counsel for the
Company.
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(h) Securities Law Violations. The Company shall not be found by
the United States Securities and Exchange Commission or any
court of competent jurisdiction to have materially violated
any federal securities law for any action, inaction or
omission of the Company made prior to the date of this
Agreement.
(i) Reduction of Duties. The duties and responsibilities of the
Employee shall not be reduced materially without the prior
written consent of the Employee.
(j) Material Breach. This Agreement shall not be breached
materially by the Company.
(k) Legal Fees of the Employee. In addition to any expenses
incurred by the Employee in accordance with Section 8 hereof
and in addition to any other indemnification to which the
Employee might otherwise be entitled, the Company shall pay
for personal legal services of the Employee up to an aggregate
of $15,000 related to the review by Employee's counsel of the
terms and conditions of this Agreement and all matters related
thereto. The payment shall be made to the Employee (or his
counsel) promptly upon presentation of an invoice or request
for reimbursement.
6. DUTIES. Initially, the Employee is engaged as Chief Executive
Officer and President of the Company. The Employee shall report only to the
Board of Directors of the Company. As Chief Executive Officer and President of
the Company, the Employee's responsibilities to the Company shall include
management of all day-to-day operations of Company, including, without limiting
the foregoing, hiring and firing of all employees, consultants and other
professionals. The Employee shall also be responsible for the implementation of
strategic plans for future operations of the Company, including locating
suitable office space for the Company in New York City or the Metropolitan New
York area. The Employee shall perform all duties incident to his office along
with other duties as from time to time may be reasonably assigned to the
Employee by the Board of Directors. The foregoing duties shall remain the duties
of the Employee when, and if, he becomes the Chairman of the Company.
7. BEST EFFORTS OF THE EMPLOYEE. The Employee shall, with diligence and
to the best of his ability, experience and talents, perform all duties agreed to
be performed by him, pursuant to the express and implicit terms hereof, to the
reasonable satisfaction of the Company and its Board of Directors. The Employee
shall devote his full time (defined for the purposes herein as forty (40) hours
per calendar week) to the activities of the Company. Employee use his good faith
best efforts and judgment in performing his duties as required hereunder and
shall act in the best interests of the Company. The Company acknowledges that
Employee may participate in other business activities so long as those business
activities do not represent a direct conflict of interest with the business
activities of the Company.
8. EXPENSES. In addition to his salary provided for in Section 3
hereof, the Company will promptly reimburse the Employee, in accordance with the
Employee's position with the Company and the Company's policies and practices in
effect from time to time, for all expenses reasonably incurred in performance of
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his duties under this Agreement. The Company shall reimburse the Employee for
all such approved expenses within 30 days of the Employee's presentation of an
itemized account of such expenditures.
9. VACATION. The Employee shall be entitled to three (3) weeks of paid
vacation, six (6) standard holidays and four (4) personal leave days per year.
The Employee will not be entitled to accumulate unused vacation days. The
Employee may not choose to forego vacation and receive additional pay instead of
time-off.
10. PRIOR ACTS. The Company hereby acknowledges, represents and
warrants that the Employee has had no control over any actions or decisions of
the Company or the Board of Directors prior to the date hereof and is in no way
responsible or liable for any such actions, inactions or decisions of the
Company prior to the date hereof. Any indemnification to which the Employee is
entitled under the bylaws of the Company or by law shall extend to such prior
actions, inactions and decisions. Any legal fees incurred by the Employee as a
result of such prior actions, inactions and omissions, including the deposit of
a reasonable retainer to the Employee's legal counsel, shall be paid to such
legal counsel for the Employee as such expenses are incurred.
11. TERMINATION.
(a) By action of its Board of Directors, the Company may
terminate this Agreement for cause at any time upon delivery by hand, overnight
courier or certified, return-receipt U.S. Mail of sixty (60) days written notice
to the Employee of the termination and the reasons therefor. Such notice having
been given, this Agreement shall terminate in accordance herewith. For the
purpose of this Section 11, "cause" shall be defined as (i) Employee's continued
failure to perform his duties and responsibilities in good faith to the best of
his abilities after 30 days prior written notice of non-performance from the
Company; (ii) conviction of a felony; (iii) fraudulent misconduct; (iv)
embezzlement, misappropriation or theft; (v) material breach of confidentiality
agreements; (vi) gross misconduct; (vii) any willful or grossly negligent act by
the Employee that has a material detrimental effect on the Company's reputation
or business; or (viii) any material violation of the terms and conditions of
this Agreement.
Within ten days after the date of delivery of such termination for
cause, the Employee may respond in writing to the notice of termination for
cause, setting forth any basis for his objection to the termination. The Board
of Directors or the Chairman of the Company shall, within ten days after the
receipt of such written response, evaluate the response of the Employee and
determine to either rescind or affirm the termination notice. The Employee shall
be notified in writing by hand delivery, overnight courier or certified,
return-receipt U.S. Mail, of such determination of the Company, upon which
delivery, such determination shall be final. In the event that the termination
for cause is affirmed, this Agreement, the employment of the Employee as Chief
Executive Officer and President and, if applicable, Chairman, shall terminate
immediately. Except as set forth in Section 11(b), if the Employee is terminated
for cause, the Employee shall not be eligible for any severance payment.
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(b) If the Employee is terminated by the Company with "cause",
the Employee or his legal representative or estate, as the case may be, shall be
paid by the Company, in full satisfaction of all of its compensation (base
salary and bonus) obligations under this Agreement an amount equal to the sum of
any base salary due to the Employee to which he was entitled on the last day of
employment, plus any accrued bonus, as determined on a pro rata basis, to which
the Employee may have been entitled on the last day of employment, but had not
received.
(c) In addition to any payments due the Employee under this
Section 11, if employment is terminated by the Company without "cause", the
Employee shall be paid a severance payment of $210,000 (the "Severance
Payment"). Such Severance Payment shall be paid to the Employee within ten (10)
days from the Employee's last day of employment. If the Severance Payment is not
paid within such ten-day period, the Company shall reimburse the Employee for
any costs or expenses incurred by him for the collection of the Severance
Payment, including, without limitation, any attorneys fees incurred by the
Employee, including the deposit of a reasonable retainer to the Employee's legal
counsel, which attorneys fees shall be paid as they are incurred.
(d) Any payment made by the Company pursuant to Section 11(b)
or any Severance Payment made by the Company pursuant to Section 11(c) above (i)
will be subject to offset for any advances, amount receivable, and loans,
including accrued interest, outstanding on the date of the employment
termination; but (ii) will not be subject to any offset on account of any
remuneration paid or payable to the Employee for any subsequent employment the
Employee may obtain, whether during or after the period during which the payment
is made, and the Employee shall have no obligation whatever to seek any
subsequent employment.
(e) The Employee may terminate this Agreement with or without
cause by providing sixty (60) days written notice to the Company. In such event,
the Employee shall receive all compensation and benefits due to him up to the
date of termination. In the event of such voluntary termination, or in the event
that Employee terminates as a result of death or disability, no compensation,
bonus or other payment will be provided for the period after the date of
termination, except as provided in Sections 4 and 5 above.
(f) If employment is terminated either by the Company or by
the Employee, either with or without cause, the Employee will participate in an
exit interview conducted by the Company's representative for the purposes of
finalizing any remaining matters, returning all relevant property and
information to the Company, and assuring a proper transition of duties.
(g) Except as provided otherwise in this Section 11, the
Company and Employee shall not have any further right or remedy against one
another in the event Employee's employment by the Company is terminated. After
termination of employment pursuant to Sections 4, 5 or 11(a), (b) or (e), or
upon the expiration of the Term any extension thereof, the provisions of
Sections 12 (Covenant Not to Compete), 13 (Inventions or Discoveries) 14
(Disclosure of Information), and 15 (Enforcement by Injunctive Relief) hereof
shall remain if full force and effect.
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12. COVENANT NOT TO COMPETE.
(a) For the Term of this Agreement, and for a period of one
(1) year after the expiration of this Agreement or its termination by either the
Company or the Employee, the Employee shall not, either directly or indirectly,
own, manage, operate, control, be employed by, participate in, assist in the
recruitment of employees for, or be connected in any manner with the ownership,
management, operation, or control of any business entity involving technology,
processes, programs or systems which are being sold or marketed by the Company,
or are under active funded development, by the Company during the term of this
Agreement or at the time of the expiration or termination of this Agreement
within the states of New York, New Jersey or Connecticut or in any state,
territory, or city where the Company or its subsidiaries may do business.
(b) During the term of the Employee's employment with the
Company, and for a period of one (1) year thereafter, the Employee shall not (i)
directly or indirectly cause or attempt to cause any employee of the Company to
leave the employ of the Company, (ii) in any way interfere with the relationship
between the Company and any employee, (iii) directly or indirectly hire any
employee of the Company to work for any business of which the Employee is an
officer, director, employee, consultant, independent contractor or owner of an
equity or other financial interest, or (iv) interfere or attempt to interfere
with any transaction in which the Company was involved during the term of the
Employee's employment with the Company or at the time of termination of the
Employee's employment with the Company. However, Employee or Employee's
subsequent employer may hire a former employee of the Company, provided that
such hiring results exclusively from such employee's affirmative response to a
general recruitment effort carried out through public or general solicitation.
13. INVENTIONS OR DISCOVERIES.
(a) The Employee acknowledges that, while in the employ of the
Company, any and all inventions, improvements, discoveries, processes, programs
or systems relating to the business of the Company developed or discovered by
the Employee shall be fully disclosed by him to the Company and shall be the
sole and absolute property of the Company. For the purpose of this Section 13,
the meaning of the phrase "inventions, improvements, discoveries, processes,
programs or systems relating to the business of the Company" includes all
inventions, improvements, discoveries, processes, programs or systems (i)
relating to any of the Company's products, services, potential products, or
potential services; (ii) which result in modifications or enhancements of, or
can be used in connection with or in lieu of, services or products then offered
commercially by the Company; (iii) which are the subject of copyrights or
patents held or applied for by the Company; or (iv) which are under active
funded development by the Company during the term of this Agreement or at the
date of the expiration or termination of this Agreement.
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(b) The Employee acknowledges that upon the request of the
Company, the Employee shall execute, acknowledge and deliver, such assignments,
certificates or other documents as the Company may consider necessary or
appropriate to properly vest all right, title and interest to any such invention
or discovery in the Company. Any such invention or discovery by the Employee
within one (1) year of the termination or expiration of this Agreement shall
fall within the provisions of this Section unless proved conclusively by the
Employee to have been first invented or discovered by him following such
termination or expiration.
14. DISCLOSURE OF INFORMATION. The Employee recognizes and acknowledges
that his employment by the Company will, throughout the Term and any extension
thereof, bring him in contact with many confidential affairs of the Company not
readily available to the public, and plans for future developments. In
recognition of the foregoing, the Employee covenants and agrees that he will not
use or disclose to anyone outside of the Company, as the case may be, any
material confidential matters of the Company, which are not otherwise in the
public domain, either during, or for, a period of one (1) year after the
termination of his employment with the Company, except with the Company's
written consent, or pursuant to a separate confidentiality agreement entered
into between the Company and a third party or as required by court order, law or
subpoena, or other legal compulsion to disclose.
15. ENFORCEMENT BY INJUNCTIVE RELIEF. Irreparable harm should be
presumed if this Agreement is breached in any way. Damages would be difficult if
not impossible to ascertain, and the faithful observance of all terms of this
Agreement is an essential condition of employment with Company. Furthermore,
this Agreement is intended to protect the proprietary rights of Company in
important ways, and even the threat of any misuse of the confidential
information of Company would be extremely harmful to the Company. In light of
these considerations, Employee acknowledges that a court of competent
jurisdiction should immediately enjoin any breach of this Agreement upon
Company's request and Company is released from the requirement of posting any
bond in connection with temporary or interlocutory injunctive relief to the
extent permitted by law. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedy available to the Company for such breach
or threatened breach including, but not limited to, the recovery of damages from
the Employee.
16. NOTICES. Except as set forth otherwise herein, all notices,
consents, instructions, demands or requests (however characterized or described)
required or authorized hereunder shall be deemed sufficiently given if in
writing and delivered personally or sent by registered mail, postage prepaid,
effective ten days after mailing, addressed as follows:
If to Company: Eurotech, Ltd.
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
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with a copy to: Solomon Xxxxx Xxxx Xxxxxxx & Xxxxx LLP
00 Xxxx Xxxxxx-00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to Employee: Xx. Xxxx Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Samor, P.C.
0000 Xxxx Xxxx
Xxxxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
17. ASSIGNMENT OF AGREEMENT. No party may assign or otherwise transfer
this Agreement or any of its rights or obligations hereunder without the prior
written consent to such assignment or transfer by the other party hereto. Any
attempted assignment without written consent by the non-assigning party shall be
void and without force or effect at the option of the latter. All the provisions
of this Agreement shall be binding upon the respective employees, delegatees,
successors, heirs and permitted assignees of the parties.
18. FURTHER INSTRUMENTS. The parties hereto shall execute and deliver
any and all other instruments and shall take any and all other actions as may be
reasonably necessary to carry the intent of this Agreement into full force and
effect.
19. EMPLOYEE HANDBOOK. The Employee acknowledges and understands that
as an employee of the Company he is expected to abide by Company rules and
regulations (except where such rules and regulations are superceded by this
Agreement), and acknowledge in writing the he has read the Company's Employee
Handbook (once it has been made available to him).
20. SEVERABILITY. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative for
any reason by any court of competent jurisdiction, government authority or
otherwise, such holding, declaration or pronouncement shall not effect adversely
any other provisions of this Agreement, which shall otherwise remain in full
force and effect and be enforced in accordance with its terms. The effect of
such holding, declaration or pronouncement shall be limited to the territory or
jurisdiction in which made.
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21. WAIVER. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies
provided by law. No delay or failure on the part of either party in the exercise
of any right or remedy arising from a breach of this Agreement shall operate as
a waiver of any subsequent right or remedy arising from a subsequent breach of
this Agreement. The consent of any party where required hereunder to any act or
occurrence shall not be deemed to be a consent to any other act or occurrence.
22. SURVIVAL. The provisions of Sections 8, 10, 11(c), 12, 13, 14 and
15 shall survive the expiration of this Agreement or its termination by either
the Company or the Employee and shall remain in full force and effect thereafter
as provided herein.
23. GENERAL PROVISIONS. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of New York, without regard to
provisions of conflicts of law. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings relating to this subject matter, including any and all prior
employment or consulting agreements entered into between the Employee and the
Company, which are, as of the date hereof, deemed terminated and released. This
Agreement may not be modified or amended or any term or provision hereof waived
or discharged except in writing signed by the party against whom such amendment,
modification, waiver or discharge is sought to be enforced. The headings of this
Agreement are for convenience in reference only and shall not limit or otherwise
affect the meaning thereof. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and the same instrument.
24. ARBITRATION. Any and all disputes arising out of this Agreement
will be determined by submission to binding arbitration before a three-member
arbitral panel, which arbitration shall be conducted in New York, New York,
pursuant to the Rules of Arbitration of the American Arbitration Association,
the jurisdiction to which all parties hereto, as well as their successors,
assigns and transferees, hereby consent. The Company shall pay all costs and
fees relating to such arbitration, including the reasonable attorneys fees and
costs of the Employee, including the deposit of a reasonable retainer to the
Employee's legal counsel, which attorney fees shall be paid by the Company when
they are incurred, unless an award is made in favor of the Company, in which
case the Employee shall immediately reimburse the Company for all costs and fees
paid by the Company on the Employee's behalf, including, without limitation, the
attorneys fees and costs of the Employee, one-half of the cost of commencing the
arbitration, and one-half of the costs and fees of the three-member arbitral
panel.
EMPLOYEE ACKNOWLEDGES THAT, BEFORE SIGNING THIS AGREEMENT, HE WAS GIVEN
AN OPPORTUNITY TO READ IT, EVALUATE IT AND WAS ENCOURAGED BY THE COMPANY TO
DISCUSS IT WITH HIS PERSONAL ADVISORS AND ATTORNEY AND WITH REPRESENTATIVES OF
THE COMPANY. EMPLOYEE ACKNOWLEDGES THAT HE FULLY UNDERSTANDS ALL TERMS,
CONDITIONS AND IMPLICATIONS OF THIS AGREEMENT. IN LIGHT OF THE FOREGOING
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ACKNOWLEDGEMENT, IT IS FURTHER UNDERSTOOD THAT TO THE EXTENT THAT THERE MAY BE
ANY AMBIGUITIES IN ANY PROVISION HEREIN THAT MIGHT HAVE TWO OR MORE PLAUSABLE
CONSTRUCTIONS, THE LANGUAGE OF THE AGREEMENT SHALL NOT BE CONSTRUED AGAINST
EITHER PARTY HERETO.
IN WITNESS WHEREOF, the parties have executed this Agreement on
February 28, 2002.
Eurotech, Ltd.
By: /S/ XXX X. XXXXXXXXX
-------------------------------------
Xxx X. Xxxxxxxxx,
President and Chief Executive Officer
The Employee
/S/ XXXX X. XXXXX
-------------------------------------
Xxxx X. Xxxxx
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