EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
this 6 day of 8/06/ 2001, by and between SmartGate, L.C., a Florida limited
liability company, (the "Company") and Xxxx Xxxxx ("Employee").
RECITALS:
WHEREAS, Employee wishes to be employed by the Company, and the Company
wishes to employ the Employee; and
WHEREAS, the Company and the Employee are desirous of setting forth in
this definitive Employment Agreement their respective rights and obligations in
respect to Employee's employment with the Company.
NOW, THEREFORE, in consideration of Employee's employment or continued
employment by the Company and in consideration of the mutual promises in this
Agreement, and for additional good and valuable consideration, the receipt and
sufficiency of which is acknowledged by the parties hereto, the Company and the
Employee agree as follows:
1. EMPLOYMENT AND TERM. On the terms and subject to the conditions of
this Agreement, the Company agrees to employ the Employee and the Employee
accepts such employment. Employee's employment under this Agreement shall
commence on the date hereof, and shall continue in effect for a period of three
years from the date hereof and it shall terminate at the end of said three year
period ("Termination Date"), unless earlier terminated pursuant to Paragraph 6
hereinbelow. It is anticipated that Employer may offer a new employment
agreement during or at the end of the term to provide for extension or
promotion.
2. DUTIES. The Employee is employed by the Company to perform the
Duties specified from time to time by the President and as set forth on Exhibit
"A" which is attached hereto, incorporated herein and made a part hereof
("Duties").
3. COMPENSATION. As compensation for Employee performing the Duties,
the Company shall pay Employee the compensation, as set forth on Exhibit "B"
which is attached hereto, incorporated herein and made a part hereof
("Compensation").
4. VACATIONS. Employee shall be entitled each year to a vacation as
provided in Exhibit "B", during which time Employee's Compensation shall be paid
in full.
5. FRINGE BENEFITS AND REIMBURSEMENT OF EXPENSES.
a. Employee shall be entitled to participate in any group plans
or programs maintained by the Company, if any, such as health insurance or other
related benefits as may be in effect from time to time and offered to the other
Employees of the Company ("Benefits").
b. The Company will reimburse Employee for Employee's out-of-
pocket expenses for entertainment, travel, and similar expenses reasonably
incurred by Employee in the performance of Employee's Duties hereunder
("Expenses") provided such Expenses are consistent with policy and budgets
established by the Board of Directors from time to time. The Employee shall
provide an itemized account of such Expenses, itemizing such Expenses in
reasonable detail, and reimbursement for Expenses approved by the Board of
Directors or its designated officer shall be made in a reasonable time following
the Employee's delivery of the itemized account.
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c. The Company shall provide Employee actual gasoline expenses
for Company business at IRS rates.
6. TERMINATION OF EMPLOYMENT.
6.1 Prior to the Termination Date, this Agreement and all the
rights and obligations of the parties hereto shall terminate immediately: (i) in
the event of the Employee's death; or (ii) if the Company ceases to conduct
business.
6.2 Prior to the Termination Date, the Company may, upon written
notice to the Employee, immediately thereafter terminate the Employee's
employment for proper cause, as limited to the grounds set forth herein ("For
Cause"), and in the event of such For Cause termination, the Employee shall not
be entitled to any Compensation or Severance Package Compensation following the
date set forth on the written notification of such For Cause termination. The
following shall be considered the exclusive grounds for For Cause termination,
and the Company shall notify the Employee of the specific event or events on
which it has based its bona fide and good faith determination that grounds exist
to terminate the Employee For Cause, which grounds shall be limited to the
following: (i) the Employee's conviction of a felony or of any lesser crime or
offense involving the property of the Company or of any customer or client of
the Company; (ii) the commission by the Employee of an act of fraud,
misappropriation or embezzlement against the Company; (iii) the commission by
the Employee of an act, or failure by the Employee to take any action, which
results in the willful malfeasance or gross negligence in the performance of the
Employee's Duties hereunder to the Company; (iv) the Employee's conviction of
any crime or the commission of any act of moral turpitude which reasonably could
be expected to affect the reputation of the Company or the Employee's ability to
perform the Duties required hereunder; (v) the Employee engaging in behavior
which is detrimental to the performance of his Duties or disruptive to the
performance of other Company employees in the performance of their duties; (vi)
the Employee's failure to adequately perform his Duties; or (vii) the Employee's
material breach of this Agreement; or the Covenant Not To Compete Agreement
attached hereto as Exhibit "C"; or the Confidentiality/Waiver of Interest
Agreement attached hereto as Exhibit "D".
6.3 Prior to the Termination Date, the Company may, upon 30 days
written notice to the Employee, immediately thereafter terminate the Employee's
employment without cause (For Cause being limited to the grounds set forth in
Paragraph 6.2 herein above). In the event of such without cause termination,
after the initial 12 months of employment with the Company, the Company shall
pay to Employee, a severance package consisting of the Compensation (as set
forth on Exhibit "B") and Benefits as described in Paragraph 5 hereinabove
("Severance Package Compensation"), which would have been due and owing to
Employee during the 90 day period following the date of such Termination
("Severance Payment Period"). In the event of a termination without cause, which
occurs after the 24 months of employment by Employee under this Agreement, the
Severance Package Compensation shall be increased from 90 days to 180 days. In
the event of termination without cause during the initial 12 months of
employment by Employee under this Agreement, no severance payment shall be due
as a result of such termination. The Severance Package Compensation shall be
paid during the Severance Payment Period at the same intervals as the
Compensation and Benefits would have been paid had the employment not been
terminated.
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6.4 Prior to the Termination Date, the Employee may, upon 30
days written notice to the Company, terminate Employee's employment with the
Company, and in such event, Employee shall not be entitled to any Compensation
or Severance Package Compensation following the date of such termination.
6.5 In the event this Agreement is not terminated prior to its
Termination Date as set forth hereinabove in this Paragraph 6, then in such
event this Agreement shall terminate upon the Termination Date.
7. NON-COMPETITION. Simultaneously with his execution of this
Agreement, Employee shall execute a Covenant Not to Compete Agreement with the
Company, as set forth on Exhibit "C" which is attached hereto, incorporated
herein and made a part hereof.
8. CONFIDENTIALITY/WAIVER OF INTEREST. Simultaneously with his
execution of this Agreement, Employee shall execute a Confidentiality/Waiver of
Interest Agreement with the Company, as set forth on Exhibit "D" which is
attached hereto, incorporated herein and made a part hereof.
9. NOTICES. Any notice provided for in this Agreement must be in
writing and must be either personally delivered or mailed by certified mail,
return receipt required, to the recipient at the address indicated below:
TO THE COMPANY: TO THE EMPLOYEE:
SmartGate, L.C. Xxxx Xxxxx
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
10. SEVERABILITY. In the event that any provision of this Agreement
shall be held to be unreasonable, invalid, or unenforceable for any reason
whatsoever, the parties agree that: (i) such invalidity or unenforceability
shall not affect any other provision of this Agreement and the remaining
covenants, restrictions, and provisions hereof shall remain in full force and
effect; and (ii) any court of competent jurisdiction may so modify the
objectionable provision as to make it valid, reasonable, and enforceable, and
such provision, as so modified, shall be valid and binding as though the
invalid, unreasonable, or unenforceable portion thereof had not been included
therein.
11. COMPLETE AGREEMENT. This Agreement contains the entire agreement
of the parties and supersedes and preempts any prior understandings, agreements
or representations between Employee and Company regarding the employment of
Employee.
12. COUNTERPARTS. This Agreement may be simultaneously executed in two
counterparts, each of which shall be an original, and all of which shall
constitute but one and the same instrument.
13. CHOICE OF LAW. This Agreement shall be governed by and construed
in accordance with the laws of the state of Florida, with venue in Sarasota
County, Florida.
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14. ATTORNEY'S FEES. In the event that either party to this Agreement
shall be forced to retain the services of any attorney to enforce any of the
provisions hereof, than the prevailing party in any ensuing litigation shall be
entitled to recover from the non-prevailing party the prevailing party's
reasonable attorney's fees, court costs or other expenses of litigation, whether
incurred at trial or upon appeal. XXXXXX & XXXXX, P.A. represented SmartGate,
L.C. in connection with this Agreement and Employee was advised to consult with
independent legal counsel.
15. AMENDMENTS/WAIVERS. This Agreement may only be modified, amended,
or waived by a writing duly authorized and executed by all parties.
16. DRAFTSMAN. In construing this Agreement, neither of the parties
hereto shall have any term or provision of this Agreement construed against such
party solely by reason of such party having drafted same as each provision of
this Agreement is deemed by the parties to have been jointly drafted by the
Company and the Employee.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
THE COMPANY: EMPLOYEE:
SMARTGATE, L.C.
By: /s/ XXXXXXX X. XXXXXXX, PRESIDENT /s/ XXXX XXXXX
--------------------------------- ----------------------------
Xxxxxxx X. Xxxxxxx, President Xxxx Xxxxx
EXHIBIT "A"
EMPLOYMENT AGREEMENT
between SmartGate, L.C.
and
Xxxx Xxxxx
In accordance with Paragraph 2, Employee shall perform the following
duties:
All duties, as assigned by the President, in association with the
Employee serving as the Company's "Director of Operations".
EXHIBIT "B"
EMPLOYMENT AGREEMENT
between SmartGate, L.C.
and
Xxxx Xxxxx
In accordance with Paragraph 3, Employee shall be paid the following
Compensation payable as set forth below:
1. The salary to be paid by Employer hereunder shall be $70,000 per
year, gross salary, payable monthly in two increments (less customary
withholding for federal and state employment taxes).
2. Stock Option. The Employee shall be granted, as of the date
hereof, a stock option to purchase 100,000 shares of the Company's common stock
at a purchase price equal to the average market price for the ten trading days
preceding the grant. The shares, which may be purchased under the right to
purchase, shall be subject to vesting as follows: (i) one-third of the shares
eligible for purchase shall be deemed vested on the date of grant; (ii) another
one-third of the shares eligible to be purchased shall be deemed vested on the
one-year anniversary of the date of grant, provided the Employee has remained an
Employee of the Company on that date; and (iii) the final one-third of the
shares eligible for purchase shall vest on the second anniversary of the date of
grant, provided the Employee has remained an Employee of the Company on that
date. The exercise period under the right to purchase shall be seven years from
the date of grant. This right to purchase will be subject to several additional
terms and conditions which will be set forth in a Definitive Stock Option
Agreement and the Company's 2000 Employee, Director, Consultant and Advisor
Stock Compensation Plan ("Plan"), and the Employee acknowledges and agrees that
the Definitive Stock Option Agreement and the Plan, and the terms and conditions
therein, will govern and supersede the right to purchase summarized hereinabove.
The shares, which may be purchased under the Definitive Stock Option Agreement
and the Plan, will be subject to restrictions on transfer and other matters set
forth in a Letter of Investment Intent the Employee shall be required to execute
and deliver to the Company upon purchase of the stock.
3. In year one, one week vacation after six months. In year two, two
weeks vacation. In year three and thereafter, three weeks vacation. Use
restrictions include: (i) no more than one week in any 90-day period during the
first two years; and (ii) 30 days advance written notice required with approval
from President.
EXHIBIT "C"
Covenant Not to Compete
COVENANT NOT TO COMPETE
This Covenant Not to Compete is made and entered into by and between
SmartGate, L.C., a Florida limited liability company (hereinafter referred to as
the "Company"), and Xxxx Xxxxx (hereinafter referred to as the "Second Party").
RECITALS:
WHEREAS, the Company is in the business of developing, manufacturing and
marketing products based upon proprietary technologies.
WHEREAS, Second Party is an employee of the Company; and
WHEREAS, Second Party acknowledges that the Company's business
activities extend throughout the world; and
WHEREAS, Second Party acknowledges that through such employment he has
and/or will acquire a special knowledge of the processes, technologies,
drawings, designs and methods of manufacture of the Company's Products; and the
clients, accounts, business lists, prospects, records, corporate policies,
operational methods and techniques and other useful information and trade
secrets of the Company (hereinafter all collectively referred to and defined as
"Confidential Information"); and
WHEREAS, Second Party acknowledges that the Company's legitimate
business interests include the Confidential Information and the Company's
customer goodwill (hereinafter referred to and defined as the "Company's
Legitimate Business Interests") and that the Company's Legitimate Business
Interests would be harmed if Second Party engaged in competitive activities with
the Company anywhere worldwide where the Company conducts business; and
WHEREAS, the Company and Second Party, pursuant to the provisions of
Florida Statutes 542.33 and 542.335, wish to enter into an agreement as embodied
herein whereby Second Party will refrain from owning, managing, or in any manner
or capacity working for a business conducting business activities which are
similar to or competitive with those of the Company and from soliciting
customers of the Company and employees of the Company for competitive purposes
during Second Party's employment with the Company and during the period of five
years after Second Party's cessation of employment with the Company in the
geographical location of anywhere worldwide where the Company conducts business.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and for additional
good and valuable consideration the receipt and sufficiency of which is
acknowledged by the parties, including, but not limited to, the Second Party's
employment with the Company and the continuation of the Second Party's
employment with the Company, the parties mutually agree as follows:
1. CONFIRMATION OF RECITALS - The foregoing recitals are true and
correct and are hereby ratified and confirmed by the parties and made an
integral part of this Agreement; as such, the recitals shall be used in any
construction of this Agreement, especially as it relates to the intent of the
parties.
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2. NON-COMPETE - The Second Party will not do, or intend to do, any
of the following, either directly or indirectly, during Second Party's
employment with the Company and during the period of five (5) years after Second
Party's cessation of employment with the Company, anywhere worldwide where the
Company conducts business:
A. Own, manage, operate, control, consult for, be an officer or
director of, work for, or be employed in any capacity by any company or any
other business, entity, agency or organization which conducts operations or
activities that are in any manner similar to those conducted by the Company or
that are in any manner competitive with those of the Company; or
B. Solicit prior or current customers of the Company; or
C. Solicit any employees employed by the Company.
The Second Party and Company agree that the phrase "Second Party's
cessation of employment with the Company" as used in this Agreement, refers to
any separation of Second Party from his employment at the Company either
voluntarily or involuntarily, either with cause or without cause, or whether the
separation is at the behest of the Company or the Second Party (hereinafter
referred to and defined as "Second Party's Cessation of Employment").
3. INJUNCTION AND DAMAGES. Second Party agrees that this Agreement is
important, material, confidential, and gravely effects the effective and
successful conduct of the business of the Company, and it effects its reputation
and good will and is necessary to protect the Company's Legitimate Business
Interests. Second Party recognizes and agrees that the Company will suffer
irreparable injury in the event of Second Party's breach of any covenant or
agreement contained herein and cannot be compensated by monetary damages alone,
and Second Party therefore agrees that the Company, in addition to and without
limiting any other remedies or rights that it may have, either under this
Agreement or otherwise, shall have the right to obtain injunctive relief, both
temporary and permanent, against the Second Party from any court of competent
jurisdiction. Second Party further agrees that in the event of Second Party's
breach of any covenant or agreement contained herein, the Company, in addition
to its right to obtain injunctive relief, shall further be entitled to seek
damages, including, but not limited to, compensatory, incidental, consequential,
exemplary, and lost profits damages. Second Party agrees to pay the Company's
reasonable attorney's fees and costs for enforcement of this Agreement, if the
Second Party breaches this Agreement.
4. MISCELLANEOUS. Wherever used in this Agreement, the phrase
"directly or indirectly" includes, but is not limited to Second Party acting
through Second Party's wife, children, parents, brothers, sisters, or any other
relatives, friends, trustees, agents, associates or entities with which Second
Party is affiliated with in any capacity. The Company may waive a provision of
this Agreement only in a writing signed by a representative of the Board of
Directors of the Company and specifically stating what is waived. The rights of
the Company under this Agreement may be assigned; however, the covenants,
warranties, and obligations of the Second Party cannot be assigned without the
prior written approval of the Company. The title of this Agreement and the
paragraph headings of this Agreement are not substantive parts of this Agreement
and shall not limit or restrict this Agreement in any way. This Agreement
survives after the Second Party's Cessation of Employment. No change, addition,
deletion, or amendment of this Agreement shall be valid or binding upon Second
Party or the
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Company unless in writing and signed by Second Party and the Company. This
Agreement is intended to be a valid contract under Sections 542.33 and 542.335,
Florida Statutes. In the event a court of competent jurisdiction determines any
covenant set forth herein to be too broad to be enforceable or determines this
Agreement to be unreasonable, then said court may reduce the geographical area
and/or the length of time provisions herein, in order to make this Agreement
enforceable and reasonable. This Agreement shall be governed by Florida law. The
parties agree that venue for any action brought under this Agreement shall be in
Sarasota County, Florida. In construing this Agreement, neither of the parties
hereto shall have any term or provision construed against such party solely by
reason of such party having drafted same as each provision of this Agreement is
deemed by the parties to have been jointly drafted by the Company and Second
Party.
5. SECOND PARTY ACKNOWLEDGMENT - The Second Party, acknowledges that
he has voluntarily and knowingly entered into this Agreement and that this
Agreement encompasses the full and complete agreement between the parties with
respect to the matters set forth herein.
Executed on this 6 day of August, 2001.
SMARTGATE, L.C.
/s/ X. XXXX By: /s/ XXXXXXX X. XXXXXXX, PRESIDENT
----------------------- ---------------------------------
Xxxxxxx X. Xxxxxxx, President
/s/ XXXXXXX X. XXXXX
-----------------------
SECOND PARTY
/s/ X. XXXX
-----------------------
/s/ XXXXXXX X. XXXXX /s/ XXXX XXXXX
----------------------- ---------------------------------
Xxxx Xxxxx
EXHIBIT "D"
Confidentiality/Waiver of Interest Agreement
CONFIDENTIALITY/WAIVER OF INTEREST AGREEMENT
THIS AGREEMENT is made and entered into by and between SmartGate, L.C.,
a Florida limited liability company (hereinafter referred to and defined as the
"Company") and Xxxx Xxxxx (hereinafter referred to and defined as the "Second
Party").
WHEREAS, the Company is in the business of creating, developing,
manufacturing and marketing products based upon proprietary technologies
("Products").
WHEREAS, Second Party is an Employee of the Company who stands to
benefit if the Company is successful and profitable through meeting its business
goals and objectives; and
WHEREAS, Second Party is fully aware and knowledgeable of the Products
in existence as of the date hereof; and
WHEREAS, Second Party recognizes that by virtue of Second Party's
relationship with the Company, Second Party has or will acquire a special
knowledge of the processes, technologies, drawings, designs, and methods of
manufacture of the Products and future Products; and the clients, accounts,
business lists, prospects, records, corporate policies, operational methods and
techniques and other useful information and trade secrets of the Company
(hereinafter all collectively and referred to and defined as "Confidential
Information"); and
WHEREAS, Second Party acknowledges that the Company's Confidential
Information represents valuable, special and unique assets of the Company; and
WHEREAS, Second Party acknowledges that the Company's legitimate
business interests include the Confidential Information and the Company's
customer goodwill (hereinafter referred to and defined as "the Company's
Legitimate Business Interests") and that the Company's Legitimate Business
Interests would be harmed if Second Party would divulge or disclose the
Confidential Information to any third-party while the Second Party is an
Employee of the Company, or at anytime thereafter; and
WHEREAS, in addition to the foregoing, the Second Party acknowledges
that it is in Second Party's and the Company's best interest that any of the
Products developed by or with the assistance of Second Party shall be the
exclusive property of the Company.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and for additional
good and valuable consideration the receipt and sufficiency of which is
acknowledged by the parties, the parties mutually agree as follows:
1. CONFIRMATION OF RECITALS. The foregoing recitals are true and
correct and are hereby ratified and confirmed by the parties and are made an
integral part of this Agreement; as such, the recitals shall be used in any
construction of this Agreement, especially as it relates to the intent of the
parties.
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2. WAIVER OF INTEREST. Second Party acknowledges and agrees that the
Company shall be the sole and exclusive owner of all rights in or to the
Products and all technologies, drawings, designs, confidential ideas, trade
secrets, documentation, annotation and other information related to the Products
whether developed by Second Party or otherwise, including any patent
applications, patents, trade names, trademarks, and copyrights related thereto
(hereinafter collectively referred to and defined as "Rights and Information").
Accordingly, Second Party irrevocably, perpetually, and absolutely
assigns and relinquishes to the Company all right, title, claim or interest
Second Party has or may have in or to the Products and all technologies,
drawings, designs, confidential ideas, trade secrets, documentation, annotation
and other information related to the Products developed by Second Party or with
the assistance of Second Party, including any patent applications, patents,
trade names, trademarks and copyrights related thereto, and Second Party agrees
to execute any and all documentation necessary to effectuate the above described
transfer of ownership.
3. FUTURE IMPROVEMENTS. Second Party acknowledges and agrees that the
provisions of Paragraph 2 above shall govern and apply to any new Products or
later developed Products and to all Rights and Information related thereto, and
to any improvements, modifications or alterations to the Products and to all
Rights and Information related thereto as fully and completely it as applies to
the Products and to all Rights and Information related thereto in existence on
the date hereof.
4. CONFIDENTIALITY. Second Party agrees with the Company that Second
Party shall maintain all Confidential Information on a confidential basis and
shall not at any time in the future disclose nor divulge the Confidential
Information to any third party, except when Second Party has obtained the prior
written approval of the Company.
5. INJUNCTION AND DAMAGES. Second Party agrees that this Agreement is
important, material and gravely affects the effective and successful conduct of
the business of the Company, and it also affects the Company's reputation and
goodwill, and is necessary to protect the Company's Legitimate Business
Interests. The Second Party further recognizes and agrees that the Company will
suffer irreparable injury in the event of Second Party's breach of any covenant
or agreement contained in this Agreement and cannot be compensated by monetary
damages alone. Accordingly, the Second Party agrees that, in addition to and
without limiting any other remedies or rights that the Company may have, the
Company shall have the right to obtain injunctive relief, both temporary and
permanent, against the Second Party from any court of competent jurisdiction. In
addition to said injunctive relief, the Company shall also be entitled to seek
damages, including, but not limited to, compensatory, incidental, consequential,
exemplary, and lost profits damages. Second Party agrees to pay the Company's
reasonable attorney's fees and costs for enforcement of this Agreement, if the
Second Party breaches this Agreement.
6. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida. The parties agree that
venue for enforcement of any type under this Agreement shall be in Sarasota
County, Florida.
7. SURVIVORS. This Agreement survives after Second Party is no longer
an employee of the Company.
8. MISCELLANEOUS. No change, addition, deletion, or amendment of this
Agreement shall be valid or binding upon Second Party or the Company unless in
writing and signed by Second Party and the Company. The rights of the Company
under this Agreement may be assigned; however, the
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covenants and agreements of the Second Party pursuant to this Agreement cannot
be assigned. The title of this Agreement and the paragraph headings of this
Agreement are not substantive parts of this Agreement and shall not limit or
restrict the Agreement in any way. In construing this Agreement, neither of the
parties hereto shall have any term or provision of this Agreement construed
against such party solely by reason of such party having drafted same as each
provision of this Agreement is deemed by the parties to have been jointly
drafted by the Company and Second Party.
9. SECOND PARTY ACKNOWLEDGMENT. The Second Party, acknowledges that
Second Party has voluntarily and knowingly entered into this Agreement and that
this Agreement encompasses the full and complete agreement between the parties
with respect to the matters set forth herein.
Executed on this 6 day of August, 2001.
SMARTGATE, L.C.
By: /s/ Xxxxxxx X. Xxxxxxx, President
---------------------------------
Xxxxxxx X. Xxxxxxx, President
SECOND PARTY
/s/ Xxxx Xxxxx
-------------------------------
Xxxx Xxxxx
