Exhibit 10.20
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), effective as of October 8,
2001 (the "Effective Date"), is by and between IVG Corp., a Delaware corporation
("Employer"), and Clay Border ("Executive").
WITNESSETH:
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WHEREAS, Executive desires to enter into the employment of Employer,
and Employer desires to employ Executive provided that, in so doing, it can
protect its confidential information, business, accounts, patronage and
goodwill.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. POSITION; DUTIES. Executive will serve as an officer of
Employer in the position of Vice President, Secretary and Chief Development
Officer. Executive will report to the Chief Executive Officer and the Board of
Directors of the Employer and its designees. Executive will perform the duties
that the Chief Executive Officer and the Board of Directors of the Employer may
from time to time reasonably direct, and such duties as may be specified for his
office in the Bylaws of the Employer. Executive will devote substantially all of
his business time, ability and attention to the business of Employer during the
Original Term and any Renewal Term of this Agreement.
SECTION 2. TERM. This Agreement shall commence on Effective Date and
end three (3) years after the Effective Date (the "Original Term"), unless
terminated earlier pursuant to Section 4 of this Agreement. After the Original
Term, this Agreement shall be automatically renewed for successive terms of one
(1) year each (each a "Renewal Term") unless terminated earlier pursuant to
Section 4 of this Agreement or unless either party gives the other party sixty
(60) days' written notice, prior to the expiration of the Original Term or any
Renewal Term, as the case may be, of that party's intent to terminate this
Agreement at the end of the Original Term or any Renewal Term.
SECTION 3. COMPENSATION. Subject to Section 4, as compensation for
Executive's services, and as compensation for Executive's covenants set forth in
this Agreement, including without limitation Section 5, the Employer agrees as
follows:
(a) BASE SALARY. During the Original Term and any Renewal
Term, the Employer will pay Executive a base salary ("Base Salary") at
the rate of $12,500.00 per month, prorated for any partial pay period.
The Base Salary will be paid in accordance with the Employer's regular
payroll practices and subject to increase by the Board of Directors.
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(b) ANNUAL BONUS. Executive shall be entitled to receive an
annual bonus based upon his performance as determined in the sole
discretion of the Board of Directors of the Employer.
(c) STOCK OPTION AGREEMENT. Executive shall receive an option
to purchase 3,000,000 shares of common stock of Employer at an exercise
price of $0.028 per share, pursuant to the terms of that certain Stock
Option Agreement attached hereto as EXHIBIT A.
(d) MISCELLANEOUS. Executive shall be entitled to the
following additional benefits:
(i) A car allowance not to exceed $800 per month;
(ii) A club membership allowance not to exceed $2,000
per year;
(iii) Reimbursement of all properly documented
business expenses, including, without limitation, wireless
phone service, in accordance with the Employer's policy, as
may be modified from time to time, for reimbursement of
business expenses;
(iv) An annual paid vacation of twenty (20) business
days in accordance with the Employer's vacation policy for
Executives of the Employer generally;
(v) Such other benefits, including health benefits
and participation in Executive benefit plans, made available
to Executives of the Employer generally and provided as soon
as practicable without violation of the Employer's policy
terms; and
(vi) Such stock options as may be granted from time
to time by the Board or any committee thereof.
SECTION 4. TERMINATION; COMPENSATION UPON TERMINATION. Notwithstanding
the provisions of Section 2 of this Agreement, this Agreement and Executive's
employment shall be terminated upon:
(a) THE OCCURRENCE OF CAUSE. For purposes of this Agreement,
Employer shall have "Cause" to terminate the Executive's employment
hereunder only upon:
(i) The willful failure or neglect by the Executive
to substantially perform his assigned duties to the Employer
or any subsidiary (other than any such refusal resulting from
the Executive's disability or incapacity due to physical or
mental illness);
(ii) The engaging by the Executive in criminal
conduct or conduct constituting moral turpitude;
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(iii) The willful insubordination of the Executive;
(iv) The embezzlement, theft or misappropriation by
the Executive of any property of Employer or its affiliates;
(v) Fraud, acts of dishonesty or misrepresentation,
or other acts (including any breach of the Executive's
covenants contained in this Agreement) that cause harm to
Employer or substantial damage to its reputation or that of
its subsidiaries (other than as a consequence of good faith
decisions made by the Executive in the normal performance of
the Executive's duties hereunder);
(vi) A conviction for or plea of nolo contendere to a
felony which carries a minimum prison sentence upon conviction
of one (1) year or longer;
(vii) Executive committing a material breach of this
Agreement or any written policies of Employer;
(viii) breach of Executive's fiduciary obligations to
the Employer or any of its subsidiaries; and/or
(ix) any chemical dependence which materially affects
the performance of Executive's duties and responsibilities to
the Employer or any of its subsidiaries;
PROVIDED, that in the case of the misconduct set forth in clauses (i)
and (ix) above, such misconduct shall continue for a period of thirty
(30) days following written notice thereof by the Company to Employee.
Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for Cause unless and until there shall be delivered to him a
copy of a duly adopted resolution of the Employer's Board of Directors finding
that the Employer has "Cause" to terminate Executive as contemplated in this
Section 4(a). If Employer terminates Executive's employment for Cause, Employer
will pay Executive his Base Salary in effect on the date of termination through
the date of termination, prorated for any partial payroll period.
(b) EXECUTIVE'S DEATH. If this agreement is terminated due to
Executive's death, the Employer will pay Executive's estate his Base
Salary in effect on the date of termination through the date of
termination, prorated for any partial payroll period.
(c) EXECUTIVE'S DISABILITY. For purposes of this Agreement,
"Disability" means a disability by reason of the occurrence of any
injury or disease (including mental illness) or a physical or mental
condition that, in the opinion of an appropriate physician, (i) results
in Executive becoming unable adequately to perform his customary duties
for the Employer, either with or without reasonable accommodation, (ii)
has lasted for a consecutive period of at least ninety (90) days, and
(iii) is expected to continue to last for more than an additional
consecutive period of at least ninety (90) days. If Executive's
employment is terminated due to disability, Employer will pay Executive
his Base Salary in effect on the date of termination through the date
of termination, prorated for any partial payroll period.
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(d) TERMINATION BY EMPLOYER WITHOUT CAUSE. Employer may
terminate this Agreement and Executive's employment without Cause at
any time, with or without notice. If Employer terminates Executive's
employment without Cause, Employer will pay Executive (i) his Base
Salary in effect on the date of termination through the date of
termination, prorated for any partial payroll period and (ii) a
severance payment equal to Employee's Base Salary in effect on the date
of termination for that period of time remaining in the Original Term
or any Renewal Term of this Agreement.
(e) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may
terminate this Agreement at any time upon delivering thirty (30) days'
written notice to the Employer. If Executive voluntarily terminates
this Agreement, other than for "Good Reason," as hereinafter defined,
Employer will pay Executive his Base Salary in effect on the date of
termination through the date of termination, prorated for any partial
payroll period. On or after the date the Employer receives notice of
Executive's resignation (other than resignation for Good Reason), the
Employer may, at its option, pay Executive his Base Salary through the
effective date of his resignation and terminate his employment
immediately.
(f) TERMINATION BY EXECUTIVE FOR GOOD REASON. Executive may,
within sixty (60) days after the occurrence of Good Reason, voluntarily
terminate his employment for Good Reason upon thirty (30) days written
notice thereof to the Company. If Executive voluntarily terminates this
Agreement for Good Reason, Employer will pay Executive (i) his Base
Salary in effect on the date of termination through the date of
termination, prorated for any partial payroll period and (ii) a
severance payment equal to Executive's Base Salary in effect on the
date of termination for that period of time remaining in the Original
Term or any Renewal Term of this Agreement. On or after the date the
Employer receives notice of Executive's resignation for Good Reason,
the Employer may, at its option, pay the amounts set forth in this
Section 4(f) and terminate his employment immediately. For purposes of
this Agreement, Good Reason shall mean the occurrence of any of the
following events: (i) a material reduction in Executive's authority or
responsibility, but not including termination of Executive for "Cause;"
(ii) relocation of the Company's principal offices outside the greater
Houston, Texas metropolitan area; or (iii) a material breach of this
Agreement by the Company; provided that Good Reason shall not include
the temporary appointment of another person to fulfill Executive's
responsibilities during any period of disability of Executive.
(g) TERMINATION BY EXECUTIVE OR EMPLOYEE AFTER CHANGE OF
CONTROL. Within nine months after the occurrence of a "Change of
Control," as defined below, Employer may terminate Executive's
employment and this Agreement without Cause and, upon thirty (30) days'
written notice to Employer, Executive may terminate his employment and
this Agreement for Good Reason. If Executive's employment and this
Agreement is terminated pursuant to this Section 4(g), Employer will
pay Executive (i) his Base Salary in effect on the date of termination
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through the date of termination, prorated for any partial payroll
period and (ii) a severance payment equal to two times the sum of
Executive's Base Salary in effect on the date of termination and the
amount, if any, Executive last received under Section 3(b) of this
Agreement. On or after the date the Employer receives notice of
Executive's termination under this Section 4(g), the Employer may, at
its option, pay the amounts set forth in this Section 4(g) and
terminate Executive's employment immediately. This Section 4(g) shall
not apply if, after a Change of Control, the Employer has Cause (as
defined in Section 4(a) above) to terminate Executive's employment. For
purposes of this Agreement, a "Change of Control" shall be deemed to
exist upon the occurrence of any of the following: (i) the Employer is
merged or consolidated or reorganized into or with another corporation,
and as result of such merger, consolidation, or reorganization less
than a majority of the combined voting power of the then-outstanding
securities of such corporation or entity immediately after such
transaction is held in the aggregate by the holders of Voting Stock (as
hereafter defined) of the Employer immediately prior to such
transaction; (ii) the Employer sells or otherwise transfers all or
substantially all of its assets to any other corporation or legal
person and, as a result of sale or such transfer, less than a majority
of the combined voting power of the then-outstanding securities of such
corporation or legal person immediately after such sale or transfer is
held in the aggregate by the holders of the Voting Stock of the
Employer immediately prior to such sale or transfer; or (iii) if during
any period of twenty-four (24) months following a merger, tender offer,
consolidation, sale of assets, or contested election, at least a
majority of the Board of Directors of the Employer shall cease to be
"Continuing Directors." For purposes of this Section 4(g), "Continuing
Directors" shall mean directors of the Employer prior to such
transaction or who subsequently became directors and whose election or
nomination for election by the stockholders of the Employer was
approved by a vote of at least two-thirds (2/3) of the directors then
still in office prior to such transaction. The term "Voting Stock"
shall mean, for purposes of this Section 4(g), the then-outstanding
securities entitled to vote generally in the election of directors of
the Employer.
(h) OTHER POSITIONS WITH EMPLOYER OR SUBSIDIARIES. Upon the
termination of Executive's employment with Employer, Executive will,
upon request, resign from any position he then holds as an officer or
director of Employer or any subsidiary of Employer. If Executive fails
to do so within three days of such request, Executive agrees that the
Board of Directors of the Employer or any such subsidiary, as
applicable, shall have good cause to remove him from any and all such
positions.
SECTION 5. PROPRIETARY AND CONFIDENTIAL INFORMATION.
(a) Executive acknowledges that he has become, and during the
Original Term and/or any Renewal Term of this Agreement, Employer
agrees that it will provide access to Executive and make Executive
familiar with various trade secrets and confidential information
consisting of, among other things: trade secrets, methods of operation
and production, patents, techniques, designs, processes, technologies,
compilations of information, past, present and prospective customer
lists, records, copyrights, and specifications that are owned and
commercially beneficial and valuable to the Employer, including any
compilation of various trade secrets or data derived from such
information (collectively, the "Proprietary Information"). The
Proprietary Information does not include information which (i) at the
time it is disclosed by the Executive was already in the public domain
or (ii) is required to be disclosed by applicable law, regulation or
judicial or regulatory process.
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(b) Executive agrees that Executive will not disclose, either
during Executive's employment with the Employer or at any time after
Executive's termination, for whatever reason, any Proprietary
Information to any person or entity, except in the course of
Executive's duties on behalf of the Employer, and that, similarly,
Executive will not, at any time, use such information for the benefit
of any person or entity other than the Employer. Executive agrees that
upon Executive's termination of employment, Executive will deposit with
or return to the Employer all copies (in any media, including, without
limitation, electronic storage media) of documents, records, notebooks
or any other information or documentation of the Employer's Proprietary
Information, and all derivatives thereof, whether the Proprietary
Information or documentation was developed or prepared by Executive or
by others. Executive acknowledges that this covenant of nondisclosure
is an integral term of this Agreement and is given in consideration of
Executive's employment and the other consideration granted in this
Agreement.
SECTION 6. NONCOMPETITION.
(a) Executive agrees that prior to the termination of this
Agreement and for a period of two (2) years after the termination of
Executive's employment for Cause or without Good Reason, and whether a
breach of contract is alleged or not, Executive shall not, without the
prior written consent of the Employer, which consent may be withheld in
the Employer's sole discretion, engage, whether for compensation or
not, as an individual proprietor, owner, partner, stockholder, officer,
director, executive, agent, investor, consultant, sales representative
or in any other capacity whatsoever, in any activity or endeavor that
involves any business in which the Employer is then involved
(including, without limitation, within the PEO (Professional Employer
Organization) business and the illuminated promotional products and
gifts industry), in a state where Employer or its affiliates maintains
an office. Additionally, Executive agrees that prior to the termination
of this Agreement and for a period of two (2) years after termination
of Executive's employment, and whether a breach of contract is alleged
or not, Executive will not, directly or indirectly, attempt to solicit
or conduct business with any person or entity that is a client,
customer or active prospect of the Employer at any time in the twelve
(12) months immediately preceding the termination of Executive's
employment if such business would be in competition with the Employer's
business. Executive acknowledges Executive's duty, both by contract and
common law, not to interfere with contractual relationships and not to
use proprietary and confidential information about customers or clients
of the Employer for the advantage of any person or entity other than
the Employer.
(b) Executive further agrees, during Executive's employment
and after Executive's termination for whatever reason, notwithstanding
any allegation of breach of this Agreement, not to solicit, influence
or attempt to influence, directly or indirectly, any employee of the
Employer to terminate his or her employment or other contractual
relationship with the Employer for any reason including, without
limitation, working for a competitor.
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(c) The covenants of the Executive contained in this Section 6
will be construed as independent of any other provision in this
Agreement, and the existence of any claim or cause of action by the
Executive against the Employer will not constitute a defense to the
enforcement by the Employer of said covenants. Executive further agrees
that notwithstanding any other alleged breach of this Agreement, the
provisions of this Section 6 will be valid and binding upon Executive.
(d) The Executive understands that the covenants contained in
this Section 6 are essential elements of the transactions contemplated
by this Agreement and, but for the agreement of the Executive to this
Section 6, the Employer would not have agreed to enter into such
transactions.
(e) Executive further agrees and acknowledges that this
Agreement (i) is reasonable as to length of time, scope and geographic
area for purposes of protecting the commercial advantages enjoyed by
the Employer, (ii) will not interfere with Executive's ability to
pursue a proper livelihood in the event of termination of Executive's
employment with the Employer, (iii) does not impose a greater restraint
than is necessary to protect the goodwill or business interests of the
Employer, and (iv) is more than adequately paid for in the
consideration derived by Executive under this Agreement.
(f) The Employer and Executive also agree that the court under
Section 17(a) or arbitrators under Section 17(b) will have jurisdiction
to modify any provisions of this covenant of noncompetition in
accordance with the court's or arbitrators' respective ruling as to
reasonableness or scope of application and that, consistent with
Section 12 of this Agreement, this Agreement shall remain enforceable
as modified or amended in the jurisdiction where this Agreement is so
modified or amended.
SECTION 7. ASSIGNMENT OF INVENTIONS. Executive hereby assigns and
agrees to assign to Employer, its successors, assigns or nominees, all of
Executive's rights to any discoveries, inventions and improvements, whether
patentable or not, made, conceived or suggested, either solely or jointly with
others, by Executive while in the Employer's employ, whether in the course of
Executive's employment, with the use of Employer's time, material or facilities,
or that is in any way within or related to the existing or contemplated scope of
Employer's business. This Section 7 shall not apply to Executive's music, books,
scripts or similar pursuits that are outside the scope of Executive's
employment, were not created with the use of Employer's time, material or
facilities, and which are unrelated to the existing or contemplated scope of
Employer's business. Upon request by Employer with respect to any such
discoveries, inventions or improvements, Executive will execute and deliver to
Employer, at any time during or after Executive's employment, all appropriate
documents for use in applying for, obtaining and maintaining such domestic and
foreign patents as Employer may desire, and all proper assignments therefor,
when so requested, at the expense of Employer, but without further or additional
consideration. Executive acknowledges that to the extent permitted by law, all
work papers, reports, documentation, drawings, photographs, negatives, tapes and
masters therefor, prototypes and other materials (hereinafter, "items"),
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including, without limitation, any and all such items generated and maintained
on any form of electronic media, generated by Executive during Executive's
employment with Employer will be considered a "work made for hire" and that
ownership of any and all copyrights in any and all such items shall belong to
Employer. The item will recognize Employer as the copyright owner, will contain
all proper copyright notices, e.g., "(creation date) IVG Corp., All Rights
Reserved," and will be in condition to be registered or otherwise placed in
compliance with registration or other statutory requirements throughout the
world.
SECTION 8. EXECUTIVE'S ACKNOWLEDGMENTS AND REPRESENTATIONS. Executive
represents and warrants that he is free to enter into this Agreement and to
perform each of the terms and covenants of it. Executive represents and warrants
that he is not restricted or prohibited, contractually or otherwise, from
entering into and performing this Agreement, and that his execution and
performance of this Agreement is not a violation or breach of any other
agreement between Executive and any other person or entity.
SECTION 9. ATTORNEYS' FEES AND COSTS. If any action in arbitration or
at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party will be entitled to reasonable attorneys' fees,
costs and necessary disbursements in addition to any other relief to which he or
it may be entitled.
SECTION 10. WAIVER OF BREACH. The actual or apparent waiver by either
party to this Agreement of a breach of any provision of this Agreement will not
operate or be construed as an actual or constructive waiver of that breach or
any subsequent breach by any party. Waivers are not effective unless in writing
and signed by the party granting the waiver.
SECTION 11. MULTIPLE COUNTERPARTS. This Agreement may be executed in
counterparts, each of which for all purposes is to be deemed an original, and
all of which constitute, collectively, one agreement. In making proof of this
Agreement, it will not be necessary to produce or account for more than one
counterpart of this Agreement. Furthermore, a photocopy of any counterpart will
be valid and have the same effect as an original.
SECTION 12. SEVERABILITY AND SAVINGS CLAUSE. If any one or more of the
provisions or subjects contained in this Agreement is for any reason held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability will not affect the validity and enforceability of any other
provisions or subjects of this Agreement, and it is the intention of the parties
that there shall be substituted for such invalid, illegal or unenforceable
provision a provision as similar to such provision as may be possible and yet be
valid, legal and enforceable. Further, should any provisions of this Agreement
ever be reformed or rewritten by a judicial or arbitration body, those
provisions as rewritten will be binding on Executive and the Employer as if
contained in the original Agreement.
SECTION 13. SUCCESSORS; SURVIVAL; AFFILIATES. This Agreement and the
rights and obligations under this Agreement will be binding upon and inure to
the benefit of the parties to this Agreement and their respective legal
representatives, and will also bind and inure to the benefit of any successor of
the Employer by merger or consolidation or any assignee of all or substantially
all of the Employer's assets. Except to any such successor or assignee of the
Employer, neither this Agreement nor any rights or benefits under this Agreement
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may be assigned by either party to this Agreement. Each covenant on the part of
Executive contained in Section 5 shall be construed as an agreement independent
of any other provision of this Agreement and shall survive the termination of
this Agreement. The existence of any claim or cause of action of Executive
against the Employer, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Employer of any such
covenant. The protective covenants in Sections 5, 6 and 7 shall also inure to
the benefit of the Employer's affiliates (as hereinafter defined) and these
covenants shall be enforceable against Executive by each of such affiliates as
third party beneficiaries. An "affiliate" of the Employer is any person or
entity that directly, or indirectly through one or many intermediaries, controls
or is controlled by, or is under common control with, the Employer.
SECTION 14. ENTIRE AGREEMENT. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties with respect to
Executive's employment by the Employer (including any prior offer letter or
employment agreement) and contains all of the covenants and agreements between
the parties with respect to such employment. This Agreement can only be changed
by the parties in writing, executed by the party against whom enforcement of any
modifications may be sought.
SECTION 15. GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of Texas without
regard to conflict of law provisions.
SECTION 16. NOTICES. Any notice under this Agreement will be in writing
and will be deemed to have been duly given when delivered personally or three
(3) days after such notice is deposited in the United States mail, registered,
postage prepaid, and addressed, to the Employer, at its principal office, or to
Executive at Executive's last permanent address as shown on the Employer's
records.
SECTION 17. REMEDIES.
(a) INJUNCTIVE RELIEF. Executive agrees that a breach or
threatened breach, based on reasonable and good faith evidence of a
breach on Executive's part, of any covenant contained in Sections 5, 6
or 7 will cause irreparable damage to the Employer. For that reason,
Executive further agrees that the Employer is entitled as a matter of
right to an injunction from any court of competent jurisdiction,
restraining any further violation of any of such covenants by
Executive, Executive's future employers, Executives, partners, agents
or any person or entity related, directly or indirectly, to Executive.
The right to an injunction is in addition to whatever other remedies
the Employer may have, including specifically the recovery of damages.
Venue for any action under this Section 17(a) shall be in the state or
federal courts located in Xxxxxx County, Texas.
(b) ARBITRATION. Except to the extent provided in Section
17(a) above, any controversy of any nature whatsoever, including but
not limited to tort claims, statutory claims or contract disputes,
between the parties to this Agreement (including their directors,
officers, executives, agents, successors, assigns, heirs, executors and
beneficiaries) relating to the formation, execution, interpretation,
breach or enforcement of this Agreement, or relating to any other
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matter arising from Executive's employment with the Employer, shall be
submitted to arbitration before the American Arbitration Association
("AAA"), in accordance with their rules then in effect and the
substantive law of the State of Texas and the United States. The
arbitration shall be held in Xxxxxx County, Texas. Each of the parties
to this Agreement shall appoint one person as an arbitrator to hear and
determine such disputes, and if they should be unable to agree, then
the two arbitrators shall choose a third arbitrator from a panel made
up of experienced arbitrators selected pursuant to the procedures of
the AAA and, once chosen, the third arbitrator's decision shall be
final, binding and conclusive upon the parties to this Agreement. The
arbitrators may not award punitive or exemplary damages for tort,
contract or other common law claims, but will have the power to award
such damages to the extent permitted by an applicable statute and to
award prejudgment interest and attorneys' fees to the prevailing party.
The award of the arbitration panel may be confirmed by any state or
federal court of competent jurisdiction located in Xxxxxx County,
Texas, and may be challenged only upon the grounds provided in Section
10 of the Federal Arbitration Act, Title 9, United States Code. This
agreement to arbitrate shall survive the execution of this Agreement.
THE RIGHT TO ARBITRATE IS INTEGRAL TO AND NOT SEVERABLE FROM THIS
AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS ARBITRATION
AGREEMENT AND KNOWINGLY CONSENT TO ITS CONSEQUENCES, INCLUDING THE
WAIVER OF THE RIGHT TO LITIGATE CERTAIN DISPUTES. The expenses of such
arbitration will be borne by the losing party or in such proportion as
the arbitrators decide. A material or anticipatory breach of any
section of this Agreement will not release either party from the
obligations of this Section 17.
[SIGNATURE PAGE FOLLOWS]
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The parties hereto have executed the Agreement as of the date first
mentioned above.
IVG CORP.
By: /S/ XXXXXXX XXXXXXX
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Name: XXXXXXX XXXXXXX
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Title: CEO
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/S/ CLAY BORDER
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Clay Border
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