Exhibit 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), effective this 21st day of
July, 2000 (the "Commencement Date"), is made by and between XxxxXxxxxxx.xxx,
Incorporated, a Nevada corporation ("HomeSeekers"), and Xxx Xxxxxxx
("Employee").
WHEREAS, HomeSeekers and the sole members of Immediate Results through
Intuitive Systems, LLC, a California limited liability company ("IRIS"),
including Employee, have entered into that certain Purchase Agreement dated July
21, 2000, whereby HomeSeekers has purchased all of the issued and outstanding
membership interests in IRIS (the "Purchase Agreement");
WHEREAS, pursuant to the closing of the Purchase Agreement, HomeSeekers
wishes to employ Employee as Vice President, with such other duties and
responsibilities as HomeSeekers may reasonably assign to Employee consistent
with the nature and character of such employment;
WHEREAS, pursuant to the closing of the Purchase Agreement, Employee
wishes to accept such employment subject to the terms and conditions of this
Agreement;
NOW, THEREFORE, pursuant to the closing of the Purchase Agreement, in
consideration of such employment and other valuable consideration, receipt of
which is hereby acknowledged, HomeSeekers and Employee agree as follows:
SECTION 1. EMPLOYMENT.
HomeSeekers hereby employs Employee, and Employee hereby accepts
employment, as Vice President.
SECTION 2. TERM.
2.1 TERM. The term of this Agreement ("Term") shall be three years,
beginning on the Commencement Date .
2.2 TERMINATION OF EMPLOYMENT BY DEATH. Employee's employment with
HomeSeekers shall terminate automatically upon Employee's death.
2.3 TERMINATION OF EMPLOYMENT BY DISABILITY. HomeSeekers shall have the
right to discharge Employee during any period in which Employee is considered by
HomeSeekers to be disabled. Employee shall be considered disabled if, based upon
the results of a qualified physician's examination, in the sole opinion of
HomeSeekers, Employee is prevented, after reasonable accommodation by
HomeSeekers, from properly performing his duties due to a
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mental or physical illness, sickness, or other condition for a period of ninety
(90) consecutive business days in any twelve (12) month period.
2.4 TERMINATION OF EMPLOYMENT FOR CAUSE. HomeSeekers shall have the
right to discharge Employee at any time for cause, after thirty (30) days
written notice. For this purpose, "cause" shall mean the occurrence of any of
the following, while Employee is employed by HomeSeekers:
(a) Employee materially breaches this Agreement or the
Purchase Agreement, and fails to cure such breach
within thirty (30) days of written notice by
HomeSeekers of such breach;
(b) Employee willfully performs any action or engages in
any misconduct which is materially injurious to
HomeSeekers or any affiliate of HomeSeekers,
monetarily or otherwise, and fails to cure such
breach within thirty (30) days of written notice by
HomeSeekers of such breach;
(c) Employee is convicted in a final non-appealable
manner of, or pleads NOLO CONTENDERE to, (i) any
criminal violation involving dishonesty, fraud, or
breach of trust; or (ii) any felony;
(d) Employee commits any material act of dishonesty,
fraud, willful misrepresentation or other act of
moral turpitude;
(e) Employee willfully or habitually neglects any of
Employee's duties that he is required to perform
under the terms of this Agreement for a period of
more than twenty (20) business days after being
delivered a written demand for performance that
identifies such failure;
(f) Employee fails to faithfully and loyally abide by the
policies, rules, regulations and usages applicable to
Employee, as established by HomeSeekers from time to
time, as long as such policies, rules, regulations
and usages are applicable to all similarly situated
employees of HomeSeekers; or
(g) Employee violates any material fiduciary duty owed to
HomeSeekers.
2.5 TERMINATION OF EMPLOYMENT FOR ANY OTHER REASON. HomeSeekers may
terminate Employee's employment at any time upon thirty (30) days written notice
to Employee.
2.6 OBLIGATIONS OF EMPLOYEE ON TERMINATION. Employee acknowledges and
agrees that all property, including keys, credit cards, books, manuals, records,
reports, notes, contracts, customer lists, confidential information, copies of
any of the foregoing and any equipment
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furnished to Employee by HomeSeekers, belong to HomeSeekers and shall be
promptly returned to HomeSeekers upon termination of employment.
2.7 OBLIGATIONS OF HOMESEEKERS UPON TERMINATION OTHER THAN PURSUANT TO
SECTION 2.5. If Employee's employment is terminated by HomeSeekers other than
solely pursuant to Section 2.5, this agreement shall terminate as provided by
its terms and HomeSeekers' obligations to Employee under this Agreement shall be
limited to (i) the prorated payment of Employee's salary through the date of
termination to the extent not paid by then; (ii) the payment of earned bonus or
incentive payments due Employee, if any, at the time of termination under any
bonus or incentive plans in which Employee participated prior to termination;
and (iii) the payment of any reimbursable business expenses that were incurred
by Employee prior to termination in accordance with HomeSeekers' policies and
that were not reimbursed by HomeSeekers at the time of the termination of this
Agreement.
2.8 OBLIGATIONS OF HOMESEEKERS UPON TERMINATION PURSUANT TO SECTION
2.5. If Employee's employment is terminated by HomeSeekers solely pursuant to
Section 2.5 of this Agreement, this Agreement shall terminate as provided by its
terms and HomeSeekers' obligations to Employee under this Agreement shall be
limited to (i) payment of a sum equal to twelve months base salary specified in
Section 3.1 of this Agreement; (ii) the payment of earned bonus or incentive
payments due Employee, if any, at the time of termination under any bonus or
incentive plans in which Employee participated prior to termination; (iii) the
payment of any reimbursable business expenses that were incurred by Employee
prior to termination in accordance with HomeSeekers' policies and that were not
reimbursed by HomeSeekers at the time of the termination of this Agreement. and
(iv) stock options granted to Employee pursuant to 3.3 hereunder that would
otherwise vest on the next anniversary of the Commencement Date shall
immediately vest as of the date immediately prior to such termination; e.g., if
termination occurs during the second year of employment, all options granted
hereunder that would otherwise vest upon the second anniversary of the
Commencement Date will immediately vest as of the date of termination (in
addition to the previously vested first year options). As of the date of
termination of this Agreement, and on payment of any sums due hereunder,
HomeSeekers' obligations to Employee under this Agreement shall terminate and
HomeSeekers will have no further obligation to pay Employee or his estate,
beneficiaries, or legal representatives any compensation or any other amounts,
except as otherwise provided by law.
2.9 TERMINATION BY EMPLOYEE. Employee may terminate his or her
employment hereunder, upon thirty (30) days written notice and opportunity to
cure, in the event of a) material reduction in compensation and benefits without
Employee's consent, or in the absence of failure of Employee to meet performance
standards as set from time to time by HomeSeekers; b) the assignment to Employee
of duties substantially and materially inconsistent with the position and nature
of Employee's employment as set forth in Sections 1 and 5, and c) the relocation
of Employee's place of employment to a location other than Orange County,
California.
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SECTION 3. COMPENSATION.
3.1 BASE SALARY. As compensation for services rendered under this
Agreement, Employee shall be entitled to receive a salary of One Hundred Ten
Thousand Dollars ($110,000) per year. Such salary shall be earned bi-weekly and
shall be payable bi-weekly in accordance with HomeSeekers' customary practices
for peer employees. HomeSeekers shall withhold and deduct from the salary all
taxes required by federal and state laws and any other authorized deductions.
HomeSeekers will review Employee's salary at least annually. HomeSeekers may in
its sole discretion increase Employee's base salary. Increases will be granted
according to Employee's performance, annual review, and job classification as
described in the HomeSeekers' Policies and Procedures Manual then in effect.
Increases will have parity within job classifications.
3.2 BONUS. In addition to the annual base salary set forth in paragraph
3.1 of this Agreement, at the discretion of HomeSeekers' management, Employee
shall be a candidate for an annual target bonus that shall be based on
performance standards established by the Chief Executive Officer of HomeSeekers
or his designee and that shall equal a maximum bonus opportunity of thirty-five
percent (35%) of Employee's salary for the preceding quarter to the extent that
the Employee attains the maximum performance standards. The performance
standards applied to Employee shall be established no later than thirty (60)
days following the Commencement Date, and may include individual and corporate
objectives, as well as qualitative and quantitative standards.
3.3 STOCK OPTIONS. Pursuant to the HomeSeekers 1996 Stock Option Plan,
as amended, HomeSeekers shall grant Employee forty thousand (40,000) incentive
common stock options sixty-one (61) days following the Commencement Date.
Pursuant to the HomeSeekers 1996 Stock Option Plan, the per share price required
to exercise each stock option granted hereunder shall be the closing sale price
for a share of HomeSeekers common stock on the Commencement Date. One-third of
the stock options granted hereunder shall vest on the first anniversary of the
Commencement Date, provided that Employee remains employed by HomeSeekers.
One-third of the stock options granted hereunder shall vest on the second
anniversary of the Commencement Date, provided that Employee remains employed by
HomeSeekers. The remaining one-third of the stock options granted hereunder
shall vest on the third anniversary of the Commencement Date, provided that
Employee remains employed by HomeSeekers. Each stock option granted hereunder
shall have a life of three years after vesting.
SECTION 4. FRINGE BENEFITS.
4.1 WELFARE BENEFIT PLANS. As Employee becomes eligible, Employee may
participate in and shall receive benefits under welfare benefit plans, policies,
and programs, including medical, dental, disability, and life insurance plans
and programs made available by HomeSeekers to other peer employees of
HomeSeekers.
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4.2 RETIREMENT PLANS. As Employee becomes eligible, Employee shall be
entitled to participate in all retirement plans, policies and programs made
available by HomeSeekers to other peer employees of HomeSeekers.
4.3 BUSINESS EXPENSES. HomeSeekers shall reimburse Employee for all
reasonable business-related expenses incurred by Employee in connection with
his/her employment with HomeSeekers, including entertainment, travel, meals, and
lodging in accordance with the policies, practices, and procedures in effect
generally with respect to other peer employees of HomeSeekers.
4.4 CHANGES BY COMPANY. HomeSeekers reserves the right to modify,
suspend, or discontinue any and all of the above-mentioned plans, practices,
policies, and programs at any time as long as such action is taken generally
with respect to other peer employees of HomeSeekers.
SECTION 5 EMPLOYEE OBLIGATION.
5.1 DUTIES AND POSITION OF EMPLOYEE. Employee, as Vice President, shall
perform duties in accordance with the best interest of HomeSeekers, subject to
the direction and authority of the Chief Executive Officer of HomeSeekers or his
designee, provided that Employee shall not be required to accept any duties or
responsibilities that are inconsistent with Employee's position, status, duties,
responsibilities. Employee shall follow all lawful policies and procedures
established by HomeSeekers' Board of Directors. The parties agree that during
the performance of this Agreement, Employee shall remain located in and operate
from Orange County, California, and Employer shall not require Employee to
change its principal place of residence or business location for any reason.
Employee shall travel on HomeSeekers business as is reasonably required in the
discharge of his or her duties.
5.2 SERVICES TO HOMESEEKERS ONLY. Employee shall devote its productive
time, ability and attention during the normal working day to the business of
HomeSeekers during the term of this Agreement. Employee shall not directly or
indirectly render any services of a business, commercial or professional nature
to any person or firm that is engaged in a business similar to that of or in
competition with the Employer without the prior written consent of HomeSeekers.
5.3 COMPANY POLICIES. Employee agrees to abide by the policies, rules,
regulations or usages applicable to Employee as established by HomeSeekers from
time to time and provided to Employee, and to perform the duties assigned to
him, consistent with this Agreement, faithfully and loyally.
5.4 LIMITATIONS ON AUTHORITY. Employee shall comply with the policies
set forth in HomeSeekers' document entitled "Delegation of Spending Authority,"
and all amendments thereto. Notwithstanding any other provision in this
Agreement to the contrary, Employee shall
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not take any of the following actions on behalf of HomeSeekers or any of its
subsidiaries without the express, written prior approval of HomeSeekers' Chief
Executive Officer:
(a) Borrow or obtain credit or execute any guarantee;
(b) Permit any customer of HomeSeekers to become indebted
to HomeSeekers other than in the ordinary course of
business;
(c) Purchase or cause the expenditure of funds for
capital equipment;
(d) Sell or transfer any capital asset of HomeSeekers;
(e) Execute any contract or make any commitment for the
purchase or sale of HomeSeekers' products outside of
the ordinary course of business;
(f) Execute any lease of real or personal property; and
(g) Issue or cause to be issued any public announcement
or press release with respect to HomeSeekers'
financial results.
SECTION 6. ACCESS TO CONFIDENTIAL INFORMATION; NONCOMPETE.
6.1 COVENANT NOT TO COMPETE.
(a) Employee acknowledges that HomeSeekers is in the business
of developing, marketing, and servicing Internet based MLS systems, real estate
agent Internet web sites, and real estate magazines, agent and broker
productivity software, and real estate brokerage intranet systems. Employee
acknowledges that Employee has been both a member and a manager of IRIS, which
is in the business of selling and servicing real estate productivity software
under the IRIS and Lightning brands. Employee acknowledges that, by virtue of
the closing of the Purchase Agreement, HomeSeekers has acquired all of the
issued and outstanding membership interests in IRIS, that IRIS has thereby
become a wholly owned subsidiary of HomeSeekers, and that the confidential
information, customers, and other assets of IRIS have become the property of
HomeSeekers and its subsidiaries. Employee acknowledges that, in connection with
the foregoing, HomeSeekers and its subsidiaries have accumulated valuable
Confidential Information including, but not limited to, trade secrets, know-how,
technology, contracts, copyrights, trademarks, patents, software, products,
proprietary information, marketing plans, sources of supply, business
strategies, customer lists, prospects, source codes, object codes, and other
intellectual property and business records (the "Confidential Information").
Employee recognizes and acknowledges that all such Confidential Information
shall be and remain the property of HomeSeekers. Employee further acknowledges
that, as a key management employee, Employee will be involved, on a high level,
in the development, implementation and management of the business strategies and
plans of HomeSeekers. By virtue
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of Employee's unique and sensitive position and special background, employment
of Employee by a competitor of HomeSeekers represents a serious competitive
danger to HomeSeekers, and the use of Confidential Information about
HomeSeekers' business, strategies and plans can and would constitute a valuable
competitive advantage over HomeSeekers.
(b) In view of the foregoing, Employee agrees to maintain as
secret and confidential all Confidential Information. During Employee's
employment by HomeSeekers and after the termination of Employee's employment,
Employee shall not, without prior written authorization and consent of
HomeSeekers' Chief Executive Officer, or as may otherwise be required by law or
legal process, use or communicate or disclose any such Confidential Information
for as long as such Confidential Information remains confidential. Confidential
Information shall not include information which (a) becomes generally available
to the public other than as a result of a disclosure by Employee, (b) was
rightfully available to Employee on a non-confidential basis from a source other
than HomeSeekers or its subsidiaries (provided such source was not bound by a
confidentiality agreement with HomeSeekers or otherwise prohibited from
transmitting the information to Employee by a contractual, legal, or fiduciary
obligation), (c) is readily ascertainable by proper means, or (d) is required to
be disclosed by operation of law.
(c) Also, in view of the foregoing, Employee covenants and
agrees that during the period of Employee's employment by HomeSeekers and for a
period of one (1) year thereafter Employee shall not directly or indirectly:
(i) entice, persuade, or induce any individual who
presently is, or at any time during the period of his employment hereunder was
an employee of HomeSeekers or any HomeSeekers subsidiary, to terminate or
refrain from renewing or extending his or her employment with HomeSeekers or any
HomeSeekers subsidiary or to become employed by or enter into a contractual
relationship with Employee or a business in which Employee is involved in
business activities which are in competition with HomeSeekers or any HomeSeekers
subsidiary;
(ii) engage or be engaged, in any capacity, directly
or indirectly, including but not limited as employee, agent, consultant,
partner, joint venturer, independent contractor, manager, executive, owner or
security holder (except as a passive investor holding less than a 5% equity
interest in any enterprise) in any business entity engaged in business
activities which are in competition with HomeSeekers or any HomeSeekers
subsidiary;
(iii) call upon any person who is, to Employee's
knowledge, at that time, an employee of HomeSeekers or any HomeSeekers
subsidiary in a management capacity for the purpose or with the intent of
enticing such employee away from or out of the employ of HomeSeekers or any
HomeSeekers subsidiary;
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(iv) call upon any person or entity which is, to
Employee's knowledge, at that time, or which has been, within one (1) year prior
to that time, a customer of HomeSeekers or any HomeSeekers subsidiary for the
purpose of soliciting or selling products or services in competition with
HomeSeekers or any HomeSeekers subsidiary;
(v) call upon any prospective acquisition candidate
of HomeSeekers or any HomeSeekers subsidiary, known to Employee to be such
candidate, on Employee's own behalf or on behalf of any competitor;
(vi) except in furtherance of HomeSeekers business,
disclose or contact customers, whether in existence or proposed, of HomeSeekers
or any HomeSeekers subsidiary to any person, firm, partnership, corporation or
business for any reason or purpose which is competitive with HomeSeekers or any
HomeSeekers subsidiary; or
(vii) disparage, ridicule, defame, or otherwise harm
or diminish the reputation and character of HomeSeekers or its officers,
directors, or its business.
The geographic scope of this covenant not to compete shall be any market in
which HomeSeekers or any HomeSeekers subsidiary displays real estate listings or
markets any of its products or services (the "Restricted Territory").
6.2 CONTINUING OBLIGATIONS. Subject to the limitations of Section
6.1(c), this entire Section 6 of this Agreement shall survive the termination or
expiration of this Agreement. Employee agrees that, for one (1) year following
his termination of employment with HomeSeekers, Employee shall keep HomeSeekers
informed of the identification of Employee's employer and the nature of such
employment or of Employee's self-employment.
6.3 INJUNCTIVE RELIEF. The parties agree and acknowledge that the
restrictions contained in this Section are reasonable in scope and duration, and
are necessary to protect HomeSeekers and its subsidiaries. The parties intend
that the covenants contained in this Section shall be construed as a series of
separate covenants, (a) one for each country, county, city and state (or
comparable political subdivision) in the Restricted Territory, and, within such
territorial divisions, (b) one for each month to which the Member is bound by
such covenants. Except for geographic coverage, each such separate covenant
shall be deemed identical in terms to the covenant contained in the preceding
paragraphs. If, in any judicial proceeding, a court shall refuse to enforce any
of the separate covenants (or any part thereof) deemed included in such
paragraphs, then such unenforceable covenant (or such part) shall be deemed
eliminated from this Agreement for the purpose of those proceedings to the
extent necessary to permit the remaining separate covenants (or portions
thereof) to be enforced by such court. It is the intent of the parties that the
covenants set forth herein be enforced to the maximum degree permitted by
applicable law. In the event that the provisions of this Section should ever be
deemed to exceed the scope, time or geographic limitations of applicable law
regarding covenants not to compete, then such provisions shall be reformed to
the maximum scope, time or geographic limitations, as
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the case may be, permitted by applicable laws. The parties further agree and
acknowledge that any breach of this Section will cause irreparable injury to
HomeSeekers and upon any breach or threatened breach of any provision of this
Section, HomeSeekers shall be entitled to injunctive relief, specific
performance or other equitable relief, without the necessity of posting bond.
The undertakings herein shall not be construed as any limitation upon the
remedies HomeSeekers might, in the absence of this Agreement, have at law or in
equity.
SECTION 7. GENERAL PROVISIONS.
7.1 ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties in respect of its subject matter and supersedes all prior
agreements and understandings (oral or written) between or among the parties
with respect to such subject matter.
7.2 WAIVER. This Agreement may not be modified, amended, supplemented,
canceled or discharged, except by written instrument executed by all parties.
The failure of any party to enforce any of the provisions of this Agreement
shall not be deemed a waiver of any provisions or of the right of the party
thereafter to enforce any provisions.
7.3 ASSIGNMENT. This Agreement is personal to Employee and shall not be
assigned by Employee. Any such assignment shall be null and void.
7.4 SEVERABILITY. In case any provision of this Agreement shall, for
any reason, be held to be invalid, unenforceable, or illegal, such provision
shall be severed from this Agreement, and such invalidity, unenforceable or
illegality shall not affect any other provisions of this Agreement.
7.5 COUNTERPARTS; FACSIMILE. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument. Executed copies of this
Agreement of this Agreement may be delivered by facsimile, and delivery of
executed facsimile copies to the parties and their counsel shall be deemed to be
a delivery of a duplicate original and sufficient delivery to result in entry to
this Agreement by the transmitting party; provided, however, that within ten
(10) days thereafter a signed duplicate original shall be forwarded to the party
to whom a facsimile copy was forwarded.
7.6 GOVERNING LAW, JURISDICTION AND WAIVER OF VENUE. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Nevada regardless of the fact that any of the parties hereto may be or may
become a resident of a different country, state, or jurisdiction. Any suit or
action arising out of this Agreement shall be filed in a court of competent
jurisdiction within the County of Washoe, State of Nevada. The parties hereby
consent to the personal jurisdiction of such courts within Washoe County, State
of Nevada. The parties hereby waive any objections to venue in such courts
within Washoe County, State of Nevada.
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7.7 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered (and shall
be deemed delivered) by certified or registered mail (first class postage
pre-paid), guaranteed overnight delivery, or facsimile transmission if such
transmission is confirmed by delivery by certified or registered mail (first
class postage pre-paid) or guaranteed overnight delivery, to the following
addresses and facsimile numbers (or to such other addresses or facsimile numbers
which such party shall designate in writing to the other party):
(a) IF TO HOMESEEKERS:
XxxxXxxxxxx.xxx, Incorporated
0000 Xxxxx XxXxxxxx Xxxx., Xxxxx 00
Xxxx, XX 00000
Attn: Xxxx Xxxxxxx, Chairman/CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO:
Xxxxxxx & Xxxxxx
000 Xxxxxxx Xxxx
Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) IF TO EMPLOYEE:
Xxx Xxxxxxx
00 Xxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
WITH A COPY TO:
Xxxxx & Xxxxxx, LLP
000 Xxxxx Xxxx., Xxxxx 0000
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Dallas, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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7.8 ATTORNEYS' FEES. In the event of any dispute between the parties
arising out of this Agreement, the prevailing party shall be entitled, in
addition to any other rights and remedies it may have, to recover its reasonable
attorney fees and costs.
7.9 ACKNOWLEDGMENT BY EMPLOYEE. Employee represents that he is
knowledgeable and sophisticated as to business matters, including the subject
matter of this Agreement, that he has read this Agreement, and that he
understands its terms. Employee acknowledges that prior to assenting to the
terms of this Agreement he has been given a reasonable time to review it, to
consult with counsel of his own choice, and to negotiate at arms length with
HomeSeekers as to its terms and contents Each party and its counsel cooperated
in the drafting and preparation of this Agreement and the documents referred to
herein. Accordingly, any rule of law or any legal decision that would require
interpretation of any ambiguities in this Agreement against the party that
drafted it is of no application and is hereby expressly waived.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
XXXXXXXXXXX.XXX, INCORPORATED, a
Nevada corporation
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
EMPLOYEE
/s/ Xxx Xxxxxxx
---------------------------------------
XXX XXXXXXX
