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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), effective as of the 15th day
of June, 2000, by and among Communication Consulting Services, Inc., a Georgia
corporation (the "Company"), Clear Communications Group, Inc., a Georgia
corporation ("Clear"), and Xxxx X. Xxxxx, an Illinois resident (the
"Executive").
WHEREAS, this Agreement is entered into in connection with and as an
integral part of the purchase by Clear of all the outstanding capital stock of
Company under that certain Stock Purchase Agreement ("Acquisition Agreement")
dated June 15, 2000. Clear and the Company desire the Executive's continued
employment with the Company, and the Executive wishes to accept such continued
employment, upon the terms and conditions set forth in this Agreement. The
execution of this Agreement is a condition to and an inducement to Clear for
consummating the transactions under the Acquisition Agreement.
NOW THEREFORE, in consideration of the foregoing, the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. EMPLOYMENT AND DUTIES. The Company hereby employs the
Executive, and the Executive hereby accepts employment, as Vice-President and
General Manager of the Systems Engineering Division and Chief Technology Officer
of the Company. The Executive agrees to serve in such capacities and to
faithfully and diligently perform such duties, responsibilities and services
that are incidental thereto, as well as such other duties, responsibilities and
services as may be prescribed or requested by the Board of Directors of the
Company from time to time, provided that those duties are commensurate with the
Executive's training, expertise and his position with the Company. The Executive
shall devote his full time, attention and best efforts to the performance of his
duties, responsibilities and services to the Company in a lawful manner and in
accordance with all policies of and instructions from the Company.
2. TERM. The term of this Agreement will commence on the date set
forth above and will terminate three (3) year(s) thereafter (the "Initial
Term"), unless said Agreement is terminated at an earlier date as provided
herein. The Agreement shall automatically renew for successive one (1) year
term(s) unless either party notifies the other of its intention not to renew the
Agreement at least 30 days prior to the expiration of the one year term then in
effect; provided, however, that all post-termination rights and obligations
hereunder shall survive termination or expiration of this Agreement as provided
herein.
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3. COMPENSATION AND THE EXECUTIVE BENEFITS.
(a) Compensation. The Executive shall receive an
annualized salary (the "Base Salary") of One Hundred Seventy-Five Thousand
Dollars ($175,000.00) during the first year of employment hereunder, which shall
be paid in accordance with the Company's regular payroll practices and subject
to any and all withholdings pursuant to applicable law. After the first year of
the Initial Term hereof, the Base Salary shall be based upon a market rate in
the telecommunications industry consistent with the salaries of the Company's
other executive employees with comparable responsibilities and duties, provided
that the Base Salary shall not be less than the Base Salary that the Executive
is earning during the first year of the Initial Term.
(b) Executive/Fringe Benefits. The Executive shall be
eligible to participate in all the Executive benefit programs and fringe
benefits generally made available to executives of the Company, subject to any
and all terms, conditions, and eligibility requirements for said programs and
benefits, as may from time to time be prescribed by the Company. The Company may
alter, modify, add to or delete its executive benefit plans at any time as it
determines in its sole discretion, provided that Executive's benefit programs
and fringe benefits shall remain at the same level as those generally available
to other Company executives with his title and operating and reporting
responsibilities.
(c) Other Business Expenses. The Company shall reimburse
the Executive for his actual out-of-pocket, business expenses that are incurred
by the Executive and are reasonable and necessary in relation to and in
furtherance of the Executive's performance of his duties to the Company. Such
reimbursement shall be subject to compliance with the Company's reimbursement
policies and the provision of substantiating documents of said expenses as may
be reasonably requested by the Company.
(d) Vacation. The Executive shall be entitled to Paid
Time Off (PTO) (which includes vacation, illness and other personal time away
from work) as well as paid holidays in accordance with the Company's normal
policies; provided, that vacation shall be taken at such times as shall not
unreasonably interfere with the Executive's responsibilities hereunder.
(e) Options. Concurrently with the execution of this
Agreement, the Executive and o2wireless Solutions, Inc. ("o2") will enter into
the Incentive Stock Option Agreement for 25,000 shares of common stock (prior to
any stock split or dividend after the date hereof) under the 1998 o2wireless
Solutions, Inc. Incentive Stock Option Plan in the form attached hereto as
Exhibit "A". In addition to the foregoing, the Executive shall be eligible to
participate in any stock option plan or other incentive compensation plan of o2
to the same extent generally as all other similarly situated employees of o2 and
its subsidiaries.
4. TERMINATION. This Agreement may be terminated prior to the
expiration of the term as follows:
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(a) Death or Disability. The Executive's employment
hereunder shall terminate automatically upon the Executive's death. In such
event, the Executive's estate shall be entitled to receive any earned and unpaid
Base Salary, prorated through the date of death. If the Executive is prevented
from performing his material duties hereunder as a result of physical or mental
illness, injury or incapacity for either (i) a period of ninety (90) consecutive
days or (ii) more than one hundred-eighty (180) days in the aggregate in any
twelve (12) month period, then the Company may terminate the Executive's
employment upon written notice to the Executive. While receiving any disability
income payments under the Company's disability income plan, the Executive shall
not be entitled to receive any Base Salary hereunder, but shall continue to
participate in the Company's benefit plans, to the extent permitted by such
plans, until the termination of his employment.
(b) For Cause. The Company may terminate the Executive's
employment hereunder for Cause (as defined below) at any time upon notice to the
Executive setting forth in reasonable detail the nature of such Cause. In the
event that the Company terminates the Executive's employment for Cause (or the
Executive resigns from his employment with the Company), the Company shall not
be obligated to pay any salary or other compensation to the Executive after the
effective date of termination, other than accrued and unpaid Base Salary earned
through the date of termination.
(c) Without Cause. In the event the Company terminates
this Agreement without Cause, then the Executive shall be entitled to (i)
severance pay in the form of continuation of his annualized Base Salary for the
remaining term of this Agreement, be it the Initial Term, or any renewal
thereof, which shall be paid in accordance with the Company's regular payroll
practices and subject to any and all withholdings pursuant to applicable law,
and (ii) a pro rata portion of his incentive bonus, if any, contemplated by
Section 3(a) for the quarter in which his employment terminated based upon the
number of days in the quarter elapsed prior to such termination. Notwithstanding
the preceding sentence, if the Executive obtains other employment prior to the
end of the period during which he is being paid in accordance with the preceding
sentence, he must promptly give notice thereof in writing to the Company, and
the Base Salary and incentive payments to him under this Agreement for any
period after the Executive obtains such other employment will be reduced by the
amount of the cash compensation received and to be received by the Executive
from the Executive's other employment for services performed during such period.
In addition, the Company shall, at its own expense, continue to provide, through
COBRA or otherwise, medical insurance coverage contemplated by Section 3(b) for
a period of twelve months following the date of the Executive's termination
without Cause, or insurance becomes available to the Executive through earlier
employment with any other entity. Payment of the severance benefits set forth
herein shall be subject to the Executive's continued compliance with the
provisions of Section 5 hereof.
(d) By Employee. Upon a minimum of ninety (90) days'
prior written notice to the Company, the Executive may terminate this Agreement.
In such event, the Company shall not be obligated to pay any salary or other
compensation to the Executive after the effective date of termination, other
than accrued and unpaid Base Salary through the date of termination.
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5. PROTECTIVE COVENANTS. The Executive is, and will become during
the course of employment, intimately familiar with Confidential Information,
Trade Secrets, products and services, and other property of the Company, Clear
and/or their affiliate(s). For purposes of Sections 5, 6, 7, 13, and 15, the
term "Company" shall include Clear and its affiliates.
The Executive acknowledges that: (a) public disclosure of such
Confidential Information and Trade Secrets could have an adverse affect on
Company, Clear, and/or its, their business or businesses; (b) Clear has required
that the Executive make the covenants in this Section 5 as a condition to its
consummation of the transactions under the Acquisition Agreement; and (c) the
provisions of this Section 5 are reasonable and necessary to prevent the
improper use or disclosure of Confidential Information and Trade Secrets.
The protection of the Company requires that all such property and
information must remain the sole and private property of the Company to be used
only for the Company's benefit, not to be disclosed to any other party nor used
by the Executive against the Company or for the benefit of any other person. The
Executive shall, upon request of the Company, and without request promptly on
termination of employment, deliver all Company Property in the Executive's
possession or control to the Company. The Executive acknowledges and agrees that
title to all Company Property is vested in the Company.
In addition, the Executive warrants, represents, covenants and agrees,
during the term of his employment and for the periods described below, as
follows:
(a) Covenant Not to Compete in Certain Ways. The
Executive acknowledges that: (i) the services to be performed by him under this
Agreement are of a special, unique, unusual, extraordinary, and intellectual
character; (ii) Company's business is regional in scope, covering the are set
forth in Schedule 1 attached hereto and incorporated herein by this reference
(the "Region"); (iii) the Company competes with other businesses that are or
could be located in any part of the Region; (iv) the covenants set forth in this
Section 5 have been negotiated and agreed to in connection with and as part
consideration for Clear's consummation of the purchase of the common stock of
the Company in accordance with the terms of the Acquisition Agreement.
Accordingly, during his term of employment with the Company hereunder
and during the later of (i) the three (3) year period after the closing of the
Acquisition Agreement or (ii) the one (1) year period beginning on the date of
termination of the Executive's employment with the Company, the Executive shall
not engage or invest in, own, manage, operate, finance, control, or participate
in the ownership, management, operation, financing, or control of, be employed
by, associated with, or any way connected with, lend the Executive's name or any
similar name to, lend the Executive's credit to or render services or advice to,
any business whose products or activities compete in whole or in part with
products or services of Company any where in the Region; provided, however, that
the Executive may purchase or otherwise acquire up to (but not more than) 1% of
any class of securities of any enterprise (but without otherwise participating
in the activities of such enterprise) if such securities are listed on any
national or regional securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934
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and such enterprise offers products or activities that compete in whole or in
part with products or services of Company.
(b) Covenant Not to Solicit Business from Certain
Customers. The Executive acknowledges that during the course of his employment
by the Company, the Executive shall have a duty to, and shall be given an
opportunity to, make contact with and strengthen ties with Customers and
potential Customers of the Company. The Executive shall not, for a period of two
(2) years after termination of his employment with the Company, directly or
indirectly, for himself or any other person or entity, solicit any Customer for
the purchase or license by such Customer of any product or service competitive
with any of the products and services which are offered by the Company within
the one-year period preceding termination of the Executive's employment.
(c) Covenant Not to Solicit the Executives. For a period
of two (2) years following the date of termination of his employment with the
Company, the Executive shall not, directly or indirectly, for himself or any
other person or entity, employ, solicit or recommend the employment of any
executive of the Company for the purpose of causing such executive to take
employment with the Executive or any other person or entity until such executive
or former executive has ceased to be employed by the Company for a period of six
(6) months.
(d) Covenant Not to Disclose Confidential Information or
Trade Secrets. The Executive shall not disclose to any person whatsoever or use
any Trade Secrets or Confidential Information of the Company, other than as
necessary in the fulfillment of his duties to the Company in the course of
employment. This paragraph shall be effective during the term of this Agreement
and for a period of two (2) years after termination of employment with respect
to all Confidential Information, and shall remain in effect with respect to all
Trade Secrets so long as such information remains a trade secret under
applicable law.
(e) Covenant Not to Receive Prohibited Remuneration. The
Executive covenants, warrants and agrees that during his employment with the
Company, that the Executive will not, directly or indirectly,
(i) except for reasonable and normal items such
as lunches, dinners and non-material gifts having a value of
less than $100, receive any remuneration from, or make any
arrangement with, any of the past or present customers or
potential customers or suppliers or source(s) of financing of
or for the Company or any of its affiliates without the
written approval of the Board of Directors of the Company; or
(ii) receive or agree to receive, any gift or
gratuitous payment of any kind, nature or description (whether
in money, property or services), from any past, present or
potential customer, supplier, source of financing, landlord,
subtenant or licensee of the Company, any of its affiliate(s),
or anyone else without the written approval of the Board of
Directors of the Company; and
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(iii) knowingly and willfully solicit or receive
any remuneration (including any kickback, bribe or rebate),
directly or indirectly, overtly or covertly, in cash or in
kind, or offering to receive such remuneration for any act(s)
or omission(s) in any way relating to, in connection with, or
regarding the Company, its affiliate(s), and/or its or their
business or businesses without the written approval of the
Board of Directors of the Company.
(f) Injunctive Relief and Additional Remedy. The Executive
acknowledges that the injury that would be suffered by the Company as a result
of a breach of the provisions of this Agreement (including any provision of
Sections 5 or 6) would be irreparable and that an award of monetary damages to
the Company for such breach would be an inadequate remedy. Consequently, the
Company will have the right, in addition to any other rights it may have, to
obtain injunctive relief to restrain any breach or threatened breach or
otherwise to specifically enforce any provision of this Agreement, and the
Company will not be obligated to post bond or other security in seeking such
relief. Without limiting the rights or any other remedies of the Company, if the
Executive breaches any of the provisions of Sections 5 or 6, the Company will
have the right to cease making any payments otherwise due to the Executive under
this Agreement.
(g) Covenants of Sections 5 and 6 are Essential and Independent
Covenants. The covenants by the Executive in Sections 5 and 6 are essential
elements of this Agreement, and without the Executive's agreement to comply with
such covenants, Clear would not have consummated the transactions under the
Acquisition Agreement, and the Company would not have entered into this
Agreement or employed or continued the employment of the Executive. The Company
and the Executive have independently consulted their respective counsel and have
been advised in all respects concerning the reasonableness of propriety of such
covenants, with specific regard to the nature of the business conducted by the
Company.
The Executive's covenants in Sections 5 and 6 are independent
covenants, and the existence of any claim by the Executive against the Company
under this Agreement or otherwise, or against Clear, will not excuse the
Executive's breach of any covenant in Sections 5 or 6.
If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Sections 5 and 6.
6. MUTUAL NON-DISPARAGEMENT. The Company and the Executive agree
that neither party will undertake any disparaging or harassing conduct directed
at the other at any time during the term of this Agreement or following
termination hereof.
7. EXECUTIVE'S OBLIGATIONS UPON TERMINATION. Upon the termination
of the Executive's employment hereunder for whatever reason, the Executive
automatically tenders the Executive's resignation from any office the Executive
may hold with the Company, and the Executive shall not at any time thereafter
represent himself to be connected or to have any connection with the Company or
its related entities.
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8. ASSIGNMENT. Due to the personal service nature of the
Executive's obligations, the Executive may not assign this Agreement. Subject to
the restrictions in this Section, this Agreement shall be binding upon and
benefit the parties hereto, and their respective heirs, successors or assigns.
9. LEGALITY AND SEVERABILITY. The parties covenant and agree that
the provisions contained herein are reasonable and are not known or believed to
be in violation of any federal, state, or local law, rule or regulation. In the
event a court of competent jurisdiction finds any provision herein (or subpart
thereof) to be illegal or unenforceable, the parties agree that the court shall
modify said provision(s) (or subpart(s) thereof) to make said provision(s) (or
subpart(s) thereof) and this Agreement valid and enforceable. Any illegal or
unenforceable provision (or subpart thereof), or any modification by any court,
shall not affect the remainder of this Agreement, which shall continue at all
times to be valid and enforceable.
10. ENTIRE AGREEMENT; MODIFICATION; GOVERNING LAW. This Agreement
constitutes the entire understanding between the parties regarding the subject
matters addressed herein and supersedes any prior oral or written agreements
between the parties. This Agreement can only be modified by a writing signed by
all of the parties, and shall be interpreted in accordance with and governed by
the laws of the State of Georgia without regard to the choice of law provisions
thereof. Notwithstanding the foregoing, the protective provisions contained in
Sections 5 and 6 hereof shall be governed and enforced in accordance with the
laws of the state in which enforcement of such provisions is sought.
11. NEGOTIATED AGREEMENT. The Executive and the Company agree that
this Agreement shall be construed as drafted by both of them, as parties of
equivalent bargaining power, and not for or against either of them as drafter.
12. REVIEW AND VOLUNTARINESS OF AGREEMENT. The Executive
acknowledges that the Executive has had an opportunity to read, review, and
consider the provisions of this Agreement, that the Executive has in fact read
and does understand such provisions, and that the Executive has voluntarily
entered into this Agreement.
13. NON-WAIVER. The failure of the Company to insist upon or
enforce strict performance of any provision of this Agreement or to exercise any
rights or remedies thereunder will not be construed as a waiver by the Company
to assert or rely upon any such provision, right or remedy in that or any other
instance.
14. NO CONFLICTING OBLIGATIONS. The Executive hereby acknowledges
and represents that the Executive's execution of this Agreement and performance
of employment-related obligations and duties for the Company as set forth
hereunder will not cause any breach, default or violation of any other
employment, non-disclosure, confidentiality, non-competition or other agreement
to which the Executive may be a party or otherwise bound. The Executive hereby
agrees that he will not use in the performance of his duties for the Company (or
otherwise disclose to the Company) any trade secrets or confidential information
of any prior company or
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other person or entity if and to the extent that such use or disclosure may
cause a breach or violation of any obligation or duty owed to such company,
person, or entity under any agreement or applicable law.
15. FORUM; ENCORCEMENT. In the event of litigation arising from
this Agreement, the Executive hereby expressly consents to jurisdiction and
venue in any State or Federal Court sitting in Xxxxxx County, State of Georgia,
and waives any objections to such jurisdiction and venue. The Executive further
agrees that if the Executive were to breach the provisions of Section 5 or 6
hereof, the Company would be irreparably harmed and therefore, in addition to
any other remedies available at law, the Company shall be entitled to equitable
relief, including without limitation, specific performance and preliminary and
permanent injunction, against any breach or threatened breach of said Sections 5
and 6, without having to post bond.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
17. NOTICES. Any notice or other communications under this
Agreement shall be in writing, signed by the party making the same, and shall be
delivered personally or sent by certified or registered mail, postage prepaid,
addressed as follows:
If to the Executive: Xxxx X. Xxxxx
000 Xxxxxx Xxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
With a copy to: Levenfeld Xxxxxxxxxx Xxxxxxxxx Xxxxxxx
Bright Xxxxxxxxx & Xxxxxxxx, LLC
21st Floor, 00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxxxx X. Xxxxxxx, Esq.
If to the Company Clear Communications Group, Inc.
or Clear: 000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
ATTN: Chief Executive Officer
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
ATTN: Xxxxx X. Xxxxxx, Esq.
or to such other address as may hereafter be designated by either party hereto.
All such notices shall be deemed given on the date received.
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18. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
(a) "CAUSE."
(i) The Executive's repeated failure to perform
(other than by reason of disability), or gross negligence in
the performance of, his material duties and responsibilities
hereunder and the continuance of such failure or negligence
for a period of thirty (30) days after notice to the
Executive;
(ii) Material breach by the Executive of any
provision of this Agreement or any other written agreement
between the Executive and the Company or any of its
affiliates; and
(iii) Other conduct by the Executive that involves
a material violation of law or breach of fiduciary obligation
on the part of the Executive or other improper conduct that
has materially harmed the Company or its affiliate(s) with
regard to its or their customers, vendors, or to the public
generally.
(b) "COMPANY PROPERTY." All property, including, without
limitation, real, personal, tangible or intangible, including all computer
programs, electronic data, educational or instructional materials, inventions,
Confidential Information, Trade Secrets, facilities, trade names, logos,
patents, copyrights and all tangible materials and supplies (whether originals
or duplicates and including, but not in any way limited to, computer diskettes,
brochures, materials, sample products, video tape cassettes, film, catalogs,
books, records, manuals, sales presentation literature, training materials,
calling or business cards, customer records, customer files, customer names,
addresses and phone numbers, directives, correspondence, documents, contracts,
orders, messages, memoranda, notes, circulars, agreements, bulletins, invoices
and receipts), which in any way pertain to the business of the Company, Clear,
and/or their affiliate(s), whether furnished to the Executive by the Company or
prepared, compiled or acquired by the Executive while employed by the Company,
all being the sole property of the Company, Clear, or their affiliate(s), as the
case may be.
(c) "CONFIDENTIAL INFORMATION." All information or
material regarding the Company's business that has or could have commercial
value or other utility in the business in which the Company is engaged or
contemplates engaging, or information which if disclosed without authorization
could be detrimental to the business of the Company, including, but not limited
to, its business plans, marketing plans, methods of operation, products,
software programs, documentation of computer programs, programming procedures,
algorithms, formulas, equipment, techniques, existing and contemplated services,
inventions, systems, devices (whether or not patentable), financial information
and practices, plans, pricing, selling and marketing techniques, proposals or
bids for actual or potential customers, names, addresses and phone numbers of
the Company's customers, credit information and financial data of the Company
and the Company's customers, particular business requirements of the Company's
customers, and special methods and processes involved in designing, producing
and selling the
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Company's products and services, all shall be deemed Confidential Information
and the Company's exclusive property; provided, however, that Confidential
Information shall not include information that has entered the public domain
other than through the actions of the Executive. Confidential Information shall
also include the foregoing types of information with respect to Clear and its
affiliates.
(d) "CUSTOMER." Customer means any customer or
prospective customer of the Company, Clear and/or its affiliate(s) with whom the
Executive had Material Contact during the twelve (12) months immediately
preceding the termination of the Executive's employment with the Company.
(e) "MATERIAL CONTACT." Material Contact means
interaction between the Executive and the customer or potential customer which
takes place in an effort to further the business relationship, and shall be
deemed to exist between the Executive and each customer or potential customer of
the Company with whom the Executive dealt, whose dealings with the Company were
coordinated or supervised by the Executive, or about whom the Executive obtained
and used confidential information in the ordinary course of business as a result
of the Executive's association with the Company. Material Contact shall also
include the foregoing types of interaction with respect to Clear and its
affiliates.
(f) "TRADE SECRETS." All information, without regard to
form, including, but not limited to, technical or non-technical data, a formula,
a pattern, a compilation, a program, a device, a method, a technique, a drawing,
a process, financial data, financial plans, product plans, distribution lists or
a list of actual or potential customers, advertisers or suppliers which is not
commonly known by or available to the public and which information: (A) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (B) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. Without
limiting the foregoing, Trade Secret means any item of Confidential Information
that constitutes a "trade secret(s)" under the common law or statutory law of
the State of Georgia. Trade Secrets shall also include the foregoing types of
information with respect to Clear and its affiliates.
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IN WITNESS WHEREOF, the parties hereto have hereunto affixed
their hands and seals as of the date first above written.
THE COMPANY:
Communication Consulting Services, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Authorized Officer
CLEAR:
Clear Communications Group, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Authorized Officer
EXECUTIVE:
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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SCHEDULE 1
REGION
All areas within the United States (including possessions) and within
the continent of Europe.
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