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EXHIBIT 10.25
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of
December 9, 1996 (the "Effective Date"), by and between EAGLE RIVER
INTERACTIVE, INC., a Delaware corporation (the "Company"), and XXXXX XXXX (the
"Executive").
RECITALS:
A. The Company desires to obtain the benefit of the Executive's
knowledge, skills and experience and assure itself of the ongoing right to
Executive's services, beginning on the Effective Date, and is willing to do so
on the terms and conditions set forth in this Agreement; and
B. The Executive is willing and able to render services to the
Company, beginning on the Effective Date, on the terms and conditions set forth
in this Agreement;
AGREEMENTS:
In consideration of the mutual agreements, provisions and covenants
contained in this Agreement, the Company and Executive hereby agree as follows:
1. EMPLOYMENT.
(a) Title and Duties of Executive. Subject to all of the terms
and conditions provided in this Agreement, the Company hereby employs Executive
as Executive Vice President, and Executive hereby accepts employment with the
Company. Executive shall report to the Chairman, President and Chief Executive
Officer of the Company (the "Reporting Officer"), or such other person as may
be designated by the Reporting Officer. Executive's initial area of
responsibility shall be to lead the interactive development division of the
Company. Executive's duties together with his title are subject to
modification by the Reporting Officer, provided that any such modification
shall be consistent with Executive's skills and experience and in the best
interests of the Company. Executive shall at all times be subject to and shall
observe and carry out such reasonable rules, regulations, policies, directions
and restrictions as may be established from time to time by the Company.
(b) Performance. Throughout the period of Executive's employment
hereunder, Executive shall devote his full business time, attention, knowledge
and skills, faithfully, diligently and to the best of Executive's ability, to
the active performance of his duties hereunder, and do such traveling as may
reasonably be required in connection with the performance of such duties.
2. TERM OF EMPLOYMENT.
Unless terminated as provided in Section 5 hereof, the term of this
Agreement shall be for a period of four years, commencing on the Effective Date
and continuing through and including the day immediately preceding the fourth
anniversary of the Effective Date (the "Employment Period").
3. COMPENSATION AND BENEFITS.
(a) Base Salary. As compensation for the services to be rendered
by Executive hereunder, the Company shall pay to Executive a base salary of
$200,000 per year (the annual base salary payable hereunder, as the same may be
adjusted from time to time, is referred to herein as the "Base Salary"),
payable in periodic installments (but in no event less frequently than monthly)
in accordance with the standard payroll practices of the Company in effect from
time to time, less income tax withholdings and other required employee
deductions. Executive's Base Salary shall be reviewed on a merit basis on the
first
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anniversary date of this Agreement.
(b) Bonus. For each fiscal year during the Employment Term, the
Company will set a target bonus for Executive equal to $200,000 through
Executive's participation in the Company's Performance Bonus Plan for its
senior executive officers and senior management officers, as implemented by the
Compensation Committee of the Company. The amount of the bonus actually paid,
if any, will be determined by the Company based upon the financial objectives
as set forth in such Performance Bonus Plan. If Executive's employment has
been terminated prior to the end of any fiscal year by Company without cause,
Executive shall be entitled to receive a portion of the bonus which would have
been payable to him under the Performance Bonus Plan with respect to such
Fiscal Year, if any, such amount to be determined by the Compensation Committee
of the Company in good faith.
(c) Business Expenses; Car Allowance. In accordance with the
Company's policies established from time to time, the Company will pay or
reimburse Executive for all reasonable and necessary out-of-pocket expenses
incurred by him in the performance of his duties under this Agreement, subject
to the presentation by Executive of appropriate receipts and vouchers. The
Company shall pay to Executive an automobile allowance in the amount of $650
per month.
(d) Stock Options. Forthwith following the Effective Date,
Executive shall be granted an option to purchase 300,000 shares of the common
stock of the Company (the "Stock Option"). The Stock Option shall vest and
become exercisable in four annual installments of 75,000 shares, beginning on
the day immediately preceding the first anniversary of the Effective Date, at
the exercise price per share equal to the per share fair market value of the
common stock of the Company determined as of the last trading day prior to the
option grant date. The Stock Option shall be granted under the Company's 1995
Executive Stock Option Plan, and shall be subject to the terms and conditions
of such plan and the Stock Option Agreement, to be executed by the Executive
and the Company in the form attached hereto as Exhibit A. Notwithstanding the
foregoing, the grant of the Stock Options to the Executive will ratably lapse
(based on all option grants in excess of the number of shares authorized under
the Executive Stock Option Plan) if, at the next annual meeting of
Stockholders, the Stockholders of the Company do not approve an increase in the
number of shares authorized under the Executive Stock Option Plan so as to
sufficiently cover all grants of Stock Options outstanding at the time of such
Stockholder's approval. In the event, some or all of the Stock Options granted
to Executive lapse as a result of the failure of the Company's stockholders to
approve a sufficient increase in the number of shares authorized under the
Executive Stock Option Plan, the Company shall in good faith offer the
Executive stock appreciation rights, a bonus, or other form of compensation in
order to compensate the Executive for any loss of the economic benefit of the
such lapsed Stock Options.
(e) Fringe Benefits. The Company shall make available to
Executive, throughout the period of employment hereunder, such benefits and
perquisites as are generally provided by the Company to its executive
employees. Without limiting the foregoing, the Company shall make available to
Executive any benefits payable following a change in control of the Company,
including severance benefits, as are generally provided by the Company to its
executive employees subject to any terms and conditions which are generally
applicable to such executive officers. Furthermore, without limiting the
foregoing, Executive shall be eligible to participate in the pension plan,
group life, health or accident insurance, or other such plan or policy which
may presently be in effect or which may hereafter be adopted by the Company for
the benefit of its executive employees generally, in each case subject to the
terms and conditions of any such plan or policy.
(f) Severance Pay. In consideration of his employment and the
covenants and agreements accepted by the Executive hereunder, including without
limitation, Executive's covenants set forth in Section 8 hereof, the Company
shall pay to the Executive severance compensation in accordance with the
provisions of this Section 3(f). In the event Executive's employment with the
Company is terminated by the Company without cause pursuant to Section 5(d)
herein, or if Executive resigns from employment with the Company for Good
Reason (as defined below), and the effective date of such termination or
resignation
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is during the initial Employment Period, the Company shall pay to the Executive
severance pay an aggregate amount equal to (i) 75% of the Base Salary that he
was receiving immediately before his termination if such termination or
resignation is effective at any time prior to the third anniversary of this
Agreement, or (ii) 50% of the Base Salary that he was receiving immediately
before his termination if such termination or resignation is effective at any
time on or after the third anniversary of this Agreement (in either case, the
"Severance Amount"). The Severance Amount shall be payable in periodic
installments subject to the terms of Section 3(a), less income tax withholdings
and other required employee deductions. For purposes of this Agreement, "Good
Reason" means that the Executive is required as a condition of his employment
to relocate his office more than 40 miles from the present location of the
Company's Chicago office, the Company changes Executive's duties such that
Executive's job responsibilities and working conditions are materially and
adversely affected without the consent of the Executive, or the amount of
Executive's Base Salary is reduced below the initial Base Salary set forth in
Section 3(a) above without the consent of the Executive.
4. VACATION.
Throughout the period of Executive's employment hereunder, Executive
shall be entitled to take, from time to time, on an annual basis, four weeks of
vacation with pay, at such times as shall be mutually convenient to Executive
and the Company.
5. TERMINATION.
(a) Cause. At any time during the term of Agreement, the Company
may, without any further liability hereunder, forthwith terminate the term of
Executive's employment under this Agreement at any time "for cause."
Termination "for cause" shall mean termination by action of the Board of
Directors (or an officer designated by the Board) because of any one or more of
the following: (i) the Executive's conviction of, or plea of nolo contendere
to, a felony; (ii) the Executive's breach of any legal duty of loyalty to the
Company, misappropriation of the Company's funds, or dishonest, fraudulent,
illegal or unethical business conduct; (iii) the failure of Executive to
perform the duties provided in Section 1 or comply with the reasonable rules,
regulations, policies, directions and restrictions generally applicable to
employees in similar positions as may be established from time to time by the
Company, which failure to so perform or comply shall continue after notice from
the Company; (iv) the Executive's breach of the obligations provided in
Sections 6, 7, 8 and 9 of this Agreement; (v) the Executive's illegal use of
controlled substances; or (vi) any material breach of this Agreement by the
Executive (other than one identified above) which shall continue after notice
from the Company. Termination "for cause" shall be effective immediately for
those events described in subparagraphs (i), (ii), (iv), and (v). Termination
"for cause" shall be effective immediately upon the giving of written notice by
the Company to Executive of the continuance of Executive's failure to perform
or comply with respect to the items described in subparagraph (iii) above or
the continuance of a breach described in subparagraph (vi) above. In the event
that the Executive is purportedly terminated for cause and a court, arbitration
panel or other tribunal having jurisdiction determines that "cause" as defined
herein was not present, then such purported termination for cause shall be
deemed a termination without cause pursuant to Section 5(d) and the Executive's
rights and remedies will be governed by Section 3(f) hereof, in full
satisfaction and in lieu of any and all other or further remedies the Executive
may have.
(b) Death of Executive. This Agreement shall terminate
automatically upon the death of Executive.
(c) Disability. This Agreement shall terminate upon a
determination by the Board of Directors that the Executive is unable to perform
the essential functions of his employment position, due to a disability of
Executive that cannot be reasonably accommodated by the Company, the
effectiveness of such termination to be the date on which Executive becomes
eligible to receive benefits under the long term disability plan of the Company
in effect on the date of such termination, or such later date as determined by
the Board of Directors.
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(d) Termination Without Cause. This Agreement may be terminated
by either party without cause, or by the Executive for Good Reason (as defined
in Section 3(f) above), by giving written notice of termination at least two
weeks prior to the effective date of such termination.
6. CONFIDENTIAL INFORMATION.
(a) Disclosure and Use. Executive shall not disclose or use at
any time, either during or after Executive's employment with the Company or any
other direct or indirect subsidiary of the Company (collectively referred to
herein as the "Company"), any trade secrets or other confidential information,
whether patentable or not, of the Company, including but not limited to,
technical or non-technical data, a formula, pattern, compilation, program,
device, method, technique, drawing, process, financial data, or list of actual
or potential customers or suppliers, of which Executive is or becomes informed
or aware during said employment, whether or not developed by Executive, except
(i) as may be required for Executive to perform his employment duties with the
Company; (ii) to the extent such information has been disclosed to Executive by
a third party who is not subject to restriction on the dissemination of such
information or becomes generally available to the public other than as a result
of a disclosure by a party who is not subject to restriction on the
dissemination of such information; (iii) information which must be disclosed as
a result of a subpoena or other legal process, after the Company has had the
opportunity to request a suitable protective order for such information, or
(iv) unless Executive shall first secure the Company's prior written
authorization. This covenant shall survive the termination of Executive's
employment with the Company, and shall remain in effect and be enforceable
against Executive for so long as any such Company secret or confidential
information retains economic value, whether actual or potential, from not being
generally known to other persons who can obtain economic value from its
disclosure or use. Executive shall execute such reasonable further agreements
of Executive's obligations to the Company concerning non-disclosure of Company
trade secrets and confidential information as the Company may require from time
to time.
(b) Return of Materials. Upon termination of his employment with
the Company, Executive shall promptly deliver to the Company all customer
lists, specifications, drawings, listings, documentation, manuals, letters,
notes, note books, reports, and copies thereof, and all other materials of a
secret or confidential nature relating to the Company's business, which are in
the possession or under the control of Executive.
7. INVENTIONS AND DISCOVERIES.
Executive hereby assigns to the Company all of Executive's rights,
title and interest in and to all inventions, discoveries, processes, designs
and other intellectual property (hereinafter referred to collectively as the
"Inventions"), and all improvements on existing Inventions made or discovered
by Executive during the term of Executive's employment by the Company.
Promptly upon the development or making of any such Invention or improvement
thereon, Executive shall disclose the same to the Company and shall execute and
deliver to the Company such reasonable documents as the Company may request to
confirm the assignment of Executive's rights therein and, if requested by the
Company, shall assist the Company in applying for and prosecuting any patents
which may be available in respect thereof. The Company acknowledges and hereby
notifies Executive that this Section 7 does not apply to an Invention for which
no equipment, supplies, facility or trade secret information of the Company was
used and which was developed entirely on Executive's own time, unless (a) the
Invention relates to (i) the business of the Company, or (ii) the Company's
actual or demonstrably anticipated research or development, or (b) the
Invention results from any work performed by Executive for the Company.
8. RESTRICTIVE COVENANT. As conditions of his employment and in
consideration of his employment, Executive covenants and agrees as follows:
(a) during his employment with the Company, and for a
period of 12 months
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thereafter, he will not, without the prior written consent of the Board of
Directors of the Company, directly or indirectly, as a stockholder (except as a
stockholder owning beneficially or of record less than 5% of the outstanding
shares of any class of publicly traded stock of any issuer), or as an officer,
director, employee, partner, joint venturer, proprietor or otherwise, engage
in, become interested in, consult with, lend to or borrow from, advise or
negotiate for or on behalf of, any business which is competitive with any
business in which the Company is engaged during the one year period immediately
preceding the termination of Executive's employment with the Company and which
is conducting such competitive business in the United States or any other
jurisdiction in which the Company is doing business during the one year period
immediately preceding the termination of Executive's employment with the
Company (a "Competitive Company"); provided, however, that notwithstanding the
foregoing, but subject to the other provisions of this Section 8, the Executive
shall be permitted to become an employee of a Competitive Company if: (i) the
Competitive Company's competitive line of business does not constitute a
principal business activity of such company; (ii) Executive's activities with
respect to the Competitive Company are unrelated in any material respect to the
competitive business during the effective period of this Section 8(a); (iii)
the Executive provides the Company reasonable evidence of his compliance with
this Section 8(a) and Section 8(d) below; and (iv) the Competitive Company
acknowledges to the Company in writing that it will not take any action the
effect of which would be to cause or otherwise allow the Executive to violate
his obligations under this Section 8.
(b) during his employment with the Company, and for a
period of 12 months thereafter, he will not solicit (or employ or cause to be
employed other than by the Company) other employees of the Company or any
affiliate or subsidiary of the Company, directly or indirectly, for the purpose
of enticing them to leave their employment with the Company or any affiliate or
subsidiary of the Company;
(c) during his employment with the Company, and for a
period of 12 months thereafter, he will not attempt in any manner to solicit
from any client of the Company at any time during the Employment Period any
business of the type performed by the Company or to persuade any such client to
cease doing business, or to reduce the amount of business which such client has
customarily done or contemplates doing, with the Company, whether or not the
relationship between the Company and such client was originally established in
whole or in part through his efforts;
(d) during his employment with the Company, and for a
period of 12 months thereafter, he will make full and complete disclosure of
the existence of this Agreement and the content of this Section 8 to all
prospective employers with whom he may discuss possible employment;
(e) he will refrain from any disparagement, whether
direct or indirect, through innuendo or otherwise, of the Company or any of its
employees, agents, officers, directors, shareholders or affiliates, it being
acknowledged that this provision shall not be deemed to limit the expression by
the Executive of his honest and fair opinion given to the Company's directors,
officers, or employees in the course of the performance of Executive's
employment;
(f) during his employment with the Company, he will not,
without the prior written consent in each case of the President and Chief
Executive Officer or Board of Directors of the Company: (i) participate
actively in any other business interests or investments which would conflict
with his responsibilities under this Agreement or (ii) borrow money from, or
lend to, customers (except those commercial institutions whose business it is
to lend money) or individuals or firms from which the Company, or any affiliate
or subsidiary of the Company, buys services, materials, equipment or supplies,
or with whom the Company, or any affiliate or subsidiary of the Company, does
business;
(g) that, during his employment with the Company, he will
not, without the prior written consent in each case of the President and Chief
Executive Officer or Board of Directors of the Company: (i) exchange goods,
products or services of the Company in return for goods, products or services
of any individual or firm or (ii) accept gifts or favors from any outside
organization or agency
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which, individually or collectively, may cause undue influence in his selection
of goods, products or services for the Company;
(h) that, after the termination of his employment with
the Company, he will not secure, or attempt to secure, from any employee or
former employee of the Company or any affiliate or subsidiary of the Company,
any information relating to the Company or any affiliate or subsidiary of the
Company or its business operations; and
(i) that, he will promptly and voluntarily advise the
President and Chief Executive Officer or Board of Directors of the Company of
any activities which might result in a conflict of interest with his duties to
the Company hereunder. Executive represents and warrants to the Company that,
notwithstanding the operation of the covenants contained in this Section 8,
upon the termination of his employment hereunder, Executive will be able to
obtain employment for the purpose of earning a livelihood.
9. AGREEMENTS REGARDING PRIOR EMPLOYMENT.
(a) As used in this Section 9 the following terms have
the following meanings.
"Trade Secret" means the whole or any portion of the
property of a person (the "Owner") consisting of any information,
pattern, compilation, data, list, document, memorandum, process,
program, device, method, technique, formula or improvement, whether
patentable or not, relating to the business of the Owner (i) of which
Executive became aware as a consequence of or through his relationship
with the Owner; (ii) which derives independent economic value, actual
or potential, from not being generally known to the public or to other
persons who can obtain economic value from its disclosure or use; and
(iii) which is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. Assuming these three criteria
are met, Trade Secrets shall include information relating to the
financial affairs, customers, employees, employees' compensation,
research, development, inventions, existing and future products and
services, plans and designs, and marketing of the Owner. Trade
Secrets shall not include any data or information that has been
voluntarily disclosed to the public by the Owner or become generally
known to the public.
"Former Employer" means, collectively, Systemhouse,
Inc. and Xxxxxxxx Consulting, as well as any parent, subsidiary, and
affiliate corporations of either of them.
(b) To induce the Company to enter into this Agreement,
Executive represents to the Company that the following statements are true and
correct:
(i) Executive has not delivered to the Company,
directly or indirectly, any document, writing or other physical
manifestation containing or disclosing any Trade Secret of a Former
Employer;
(ii) Executive has not, to the best of his
knowledge, orally disclosed to the Company, directly or indirectly,
any Trade Secret of a Former Employer;
(iii) Executive has delivered all documents which
set forth Executive's obligations to any Former Employer with respect
to the nondisclosure of information, competition, or the solicitation
of the employees or customers;
(iv) No Former Employer has asserted that
Executive has misappropriated, wrongfully disseminated or otherwise
improperly used any of their respective Trade Secrets;
(v) Executive has not threatened or otherwise
expressed an intent to disclose to any person any Trade Secret of any
Former Employer;
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(vi) Executive does not believe that the
performance of his duties and responsibilities arising from this
Agreement will require his reliance on, use of or disclosure of any
Trade Secret of any Former Employer.
(c) Executive and the Company make the following
covenants to each other:
(i) Neither the Company nor Executive intends to
obtain, learn, disclose or use any Trade Secret of a Former Employer;
(ii) Executive will not disclose to the Company
any Trade Secret of a Former Employer, and the Company will not
request Executive to make any such disclosure.
10. SEVERABILITY.
If any provision of this Agreement is held invalid or unenforceable,
either in its entirety or by virtue of its scope or application to given
circumstances, such provision shall thereupon be deemed modified only to the
extent necessary to render the same valid, or not applicable to the given
circumstances, or excised from this Agreement, as the situation may require,
and this Agreement shall be construed and enforced as if such provision had
been included herein as so modified in scope or application, or had not been
included herein, as the case may be. Should this Agreement, or any one or more
of its provisions hereof, be held to be invalid, illegal or unenforceable
within any governmental jurisdiction or subdivision thereof, the Agreement or
any such provision or provisions shall not as a consequence thereof be deemed
to be invalid, illegal or unenforceable in any other governmental jurisdiction
or subdivision thereof. The existence of any claim or cause of action which
Executive may have against the Company shall not constitute a defense or bar to
the enforcement of any of the provisions of this Agreement and shall be pursued
through separate court action by the Executive.
11. LEGAL REMEDIES.
Executive hereby acknowledges that the Company would suffer
irreparable injury if the provisions of paragraphs 6, 7, 8, and 9 above, which
shall survive the termination of the Agreement, were breached and that the
Company's remedies at law would be inadequate in the event of such breach.
Accordingly, Executive hereby agrees that any such breach or threatened breach
may, in addition to any and all other available remedies, be preliminarily
enjoined by the Company without bond or other security and without having to
prove the inadequacy of the available remedies at law. In the event of
litigation under this Agreement, each of the Company and Executive shall pay
its own attorneys' fees and expenses.
12. NON-ASSIGNABILITY.
In light of the unique personal services to be performed by Executive
hereunder, it is acknowledged and agreed that any purported or attempted
assignment or transfer by Executive of this Agreement or any of Executive's
duties, responsibilities or obligations hereunder shall be void. This
Agreement may be assigned by the Company to any subsidiary or affiliate of the
Company without the prior written consent of Executive.
13. NOTICES.
Any notice, request, demand or other communication required or
permitted under this Agreement shall be in writing and shall be deemed to have
been given when delivered personally or when mailed by certified mail, return
receipt requested, addressed as follows:
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If to the Company:
Eagle River Interactive, Inc.
000 Xxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: President
with a copy to:
Xx. Xxxx X. XxXxxxxxxxx
Eagle River Interactive, Inc.
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
If to Executive:
Xxxxx Xxxx
00000 Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
or to such other address or addresses as may be specified from time to time by
notice; provided, however, that any notice of change of address shall not be
effective until its receipt by the party to be charged therewith.
14. GENERAL.
(a) Amendments. Neither this Agreement nor any of the terms or
conditions hereof may be waived, amended or modified except by means of a
written instrument duly executed by the party to be charged therewith.
(b) Captions and Headings. The captions and paragraph headings
used in this Agreement are for convenience of reference only, and shall not
affect the construction or interpretation of this Agreement or any of the
provisions hereof.
(c) Assumption of Obligations. The Company agrees that it shall
not enter into any merger, reorganization, sale of substantially all its assets
or other similar agreement or transaction without specifically providing that
any successor entity shall assume the obligations of the Company hereunder.
Executive agrees that the Company may assign its rights hereunder to such
successor entity provided that such assignment shall not offset, reduce, or
diminish any rights which shall accrue to Executive as a result of any Change
in Control (as defined in the 1995 Executive Stock Option Plan of Eagle River
Interactive, Inc.) which may thereby occur. Except as set forth in this
Section, neither the Company nor Executive shall assign their rights under this
Agreement without the consent of the other party.
(d) Successors and Assigns. Subject to Section 14(c), this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original hereof, but all
of which together shall constitute one and the same instrument.
(f) Entire Agreement. Except as otherwise set forth or referred
to in this Agreement, this Agreement constitutes the sole and entire agreement
and understanding between the parties hereto as to the
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subject matter hereof, and supersedes all prior discussions, agreements and
understandings of every kind and nature between them as to such subject matter.
(g) Reliance by Third Parties. This Agreement is intended for the
sole and exclusive benefit of the parties hereto and their respective heirs,
executors, administrators, personal representatives, successors and permitted
assigns, and no other person or entity shall have any right to rely on this
Agreement or to claim or derive any benefit therefrom absent the express
written consent of the party to be charged with such reliance or benefit.
(h) Governing Law. This Agreement shall be construed in
accordance with and governed in all respects by the laws of the State of
Illinois (without giving effect to the conflicts of laws provisions thereof).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the date first set forth above.
EAGLE RIVER INTERACTIVE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, President
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
