EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") is being made as of the 1st day of
January 2000 between MARKETING SERVICES GROUP, INC., a Nevada corporation
(the "Company"), having its principal offices at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and XXXX XXXXXX ("Employee"), an individual residing
at: 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board") desires
the Company to employ the Employee as the Chief Financial Officer of the
Company and to compensate him therefor; and
WHEREAS, the Employee desires to serve as Chief Financial Officer of
the Company, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual premises and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Nature of Employment; Term of Employment. The Company hereby
employs Employee and Employee agrees to serve the Company upon the terms and
conditions contained herein, for a term, subject to the provisions of Section
7, commencing as of the date hereof and continuing until December 31, 2003
(the "Initial Term"). This Agreement shall be automatically renewed annually
for an additional term of four (4) years, unless either party hereto shall
provide ninety (90) days notice to the other party hereto, of their intent
not to renew this Agreement.
2. Duties and Powers as Employee. (a) During the Term, the Employee
shall serve as the Chief Financial Officer of the Company and shall have the
authority, functions, duties, powers and responsibilities normally associated
with such position and as from time to time may be prescribed by the Board.
The Employee agrees, subject to his election as Chief Financial Officer and
without additional compensation, to serve during the Employment Term in such
additional offices of comparable stature and responsibility to which he may
be elected from time to time in the Company's Subsidiaries (as defined in
Section 10 below) and to serve as a director and as a member of any committee
of the Board and/or any of the Company's Subsidiaries.
(b) During the Employment Term and subject to the provisions
of Section 2(e), (i) the Employee's services shall be rendered on a
full-time, exclusive basis, (ii) he will apply on a full-time basis all of
his skill and experience to the performance of his duties in such employment,
and shall report only to the Chairman of the Board or any designate appointed
by the Chairman of the Board, (iii) he shall have no other employment or
outside business activities and (iv) unless the Employee otherwise consents,
the location for the performance of his services shall be at the discretion
of the Chairman of the Board, subject to such reasonable travel as the
performance of his duties in the business of the Company may require.
(c) Employee agrees that the Company may obtain a life
insurance policy on the life of Employee naming the Company as the
beneficiary thereof. The Company will also purchase a life insurance policy
for Employee equal to 2X the Base Salary whereby the family of the Employee
will serve as beneficiary.
(d) During the Employment Term, the Employee shall not,
directly or indirectly, without the prior written consent of the Board,
render any services to any Person (as defined in Section 10 below), other
than the Company and its Subsidiaries and other Persons in which the Company
may have an interest, or acquire any interest of any type in any such other
Person that is in competition with the Company or any of its Subsidiaries or
in conflict with his full-time, exclusive position as a senior executive
officer of the Company; provided, however, that the foregoing shall not be
deemed to prohibit the Employee from (i) acquiring, solely as an investment,
securities of any person which are registered under Section 12(b) or 12(g) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
which are publicly traded, so long as he is not part of any group required to
make any filing under Section 13(d) of the Exchange Act in respect of such
person and such securities do not constitute two (2%) percent or more of any
class of outstanding securities of such person, (ii) acquiring, solely as an
investment, any securities of any person (other than a person that has
outstanding securities covered by the preceding clause (i)) so long as he
remains a passive investor in such person and does not become part of any
control group thereof and so long as such person is not, directly or
indirectly, in competition with the Company or any of its Subsidiaries, or
(iii)(A) serving on the boards of directors of a reasonable number of other
corporations (none of which are in competition with the Company or its
Subsidiaries) or the boards of a reasonable number of trade associations
and/or charitable organizations or, with the prior written consent of the
Board, to provide consulting services for any such corporation, trade
association and/or charitable organization, (B) engaging in charitable
activities and community affairs and (C) managing his personal investments
and affairs; provided that the activities referred to in this clause (iii) do
not in the aggregate interfere in any material respect with the proper
performance of his duties and responsibilities as the Company's Chief
Financial Officer. For purposes of the foregoing, a person shall be deemed to
be in competition with the Company or any of its Subsidiaries if it (or its
Subsidiaries or Affiliates (as defined in Section 10 below)) is then engaged
in any line of business that is substantially the same as any line of
business in which the Company or any of its Subsidiaries is engaged.
3. Compensation. (a) As base compensation for his services
hereunder, the Company shall pay Employee a base salary (the "Base Salary"),
payable in weekly installments, at the annual rate of Three Hundred Thousand
($300,000) Dollars for the first full year of the Employment Term and an
amount, not less than the Base Salary, for each other full year of the
Employment Term.
(b) In addition to the Base Salary, Employee shall receive for
his services hereunder options (the "Options") under the Company's 1991 Stock
Option Plan (the "Plan") to purchase two hundred fifty thousand (250,000)
shares of the common stock, $.01 par value per share, of the Company at a per
share exercise price equal to the fair market value of the Company's common
stock on January 13, 2000, which Options shall vest and become exercisable
over a two (2)-year period, beginning as of the date hereof, in accordance
with the Company's current practice and the standard terms and conditions of
the Plan.
(c) During the Employment Term, the Employee shall be entitled
to participate in all employee pension and welfare benefit plans and programs
made available to the Company's senior level executives or its employees
generally, as such plans or programs may be in effect from time to time,
including without limitation, pension, savings, 401(k) and other retirement
plans or programs, medical, dental, hospitalization, short-term and long-term
disability and life insurance plans, and any other employee benefit plans or
programs that may be sponsored by the Company from time to time, whether
funded or unfunded.
(d) Employee shall be eligible to receive bonuses, in a
maximum amount equal to up to fifty percent (50%) of the Base Salary, for
each year of the Employment Term if and as determined by the Board of
Directors of the Company, subject to the approval of the audit committee of
the Company (the "Audit Committee"). Such bonuses, if any, shall be based
upon the Company meeting certain goals as established by the Audit Committee,
as customized to the Employee's performance hereunder. Notwithstanding,
unless this Agreement is terminated prior to December 31, 2000 by the
Employee, the Employee shall receive a bonus in an amount equal to One
Hundred Fifty Thousand ($150,000) Dollars for his services provided to the
Company during the first full year of the Employment Term.
4. Expenses; Vacations. Employee shall be entitled to
reimbursement for reasonable travel and other out-of-pocket expenses
reasonably incurred in the performance of his duties hereunder, upon
submission and approval of written statements and bills in accordance with
the then regular procedures of the Company. Employee shall be entitled to
twenty (20) days paid vacation time in accordance with the then regular
procedures of the Company governing executives as determined from time to
time by the Company's Board of Directors and communicated, in writing, to
Employee. Up to a maximum of five (5) days of unused vacation from any one
year of the Employment Term may be carried over into the subsequent year;
provided, however, that Employee may not use more than twenty-five (25)
vacation days in any single year. In consideration for Employee's right to
carry over unused vacation, Employee hereby waives his right to be paid for
any unused vacation time.
5. Representations and Warranties of Employee. Employee represents
and warrants to the Company that (a) Employee is under no contractual or
other restriction or obligation which is inconsistent with the execution of
this Agreement, the performance of his duties hereunder, or the other rights
of the Company hereunder; (b) Employee's execution of this Agreement does not
require the consent of any person; (c) Employee is under no physical or
mental disability that would hinder his performance of duties under this
Agreement; and (d) this Agreement constitutes the valid and binding
obligation of the Employee enforceable against the Employee in accordance
with its terms.
6. Restrictive Covenants. During the three (3) years following
the end of the Employee's employment by the Company (the "Covenant
Period"):
(a) The Employee agrees that he will not, directly or
indirectly, as a partner, officer, employee, director, stockholder,
proprietor, consultant, representative, agent or otherwise become, be
interested in, associate with or render assistance to any Person: (i) engaged
in the ownership, operation and/or management of any direct marketing and/or
Internet marketing business; or (ii) engaged in such other line of business
within a 250 mile radius of any location at which the Company is then engaged
therein if during the last full fiscal year of the Company preceding the date
of the termination of the Employee's employment, such other line of business
accounted for at least 5% of the Company's revenue during such year. The
foregoing provisions shall not, however, prohibit the ownership by any
Employee of securities in accordance with Section 2(e).
(b) (i) The Employee agrees that he will not, directly or
indirectly, during the Covenant Period, for his own benefit or for the
benefit of any other Person, knowingly solicit the professional services of
any Person employed by the Company, any Subsidiary or any Affiliate thereof
or any Person who had been employed within three (3) months prior thereto, or
otherwise interfere with the relationship between the Company, any Subsidiary
or any Affiliate thereof and any of such Persons.
(ii) If this Agreement is terminated pursuant to Section
7(a), then Employee, for a period of three (3) years from the date of
termination, shall not, directly or indirectly, solicit or encourage any
Person who was a customer of the Company, any Subsidiary or any Affiliate
thereof during the three (3) years prior to the date of such termination to
cease doing business with the Company or to do business with any other Person
that is engaged in the same or similar business to that of the Company.
(iii) If this Agreement shall be terminated other than
pursuant to Section 7(a), then Employee, for a period of one (1) year from
the date of termination, shall not, directly or indirectly, solicit or
encourage any Person who was a customer of the Company, any Subsidiary or any
Affiliate thereof during the three (3) years prior to the date of such
termination to cease doing business with the Company or to do business with
any other Person that is engaged in the same or similar business to that of
the Company.
(c) The Employee recognizes and acknowledges that, in
connection with his employment with the Company, he will have access to
valuable trade secrets and confidential information of the Company and its
Subsidiaries and Affiliates including, but not limited to, customer and
supplier lists, business methods and processes, marketing, promotional,
pricing and financial information and data relating to employees and agents
(collectively, "Confidential Information") and that such Confidential
Information is being made available to the Employee only in connection with
the furtherance of his employment with the Company. The Employee agrees that
during the Employment Term and thereafter, he will not use or disclose any of
such Confidential Information to any Person, except that disclosure of
Confidential Information by the Employee will be permitted: (i) to the
Company, its Subsidiaries and Affiliates and their respective advisors; (ii)
if such Confidential Information has previously become available to the
public through no fault of the Employee; (iii) if required by any court or
governmental agency or body or is otherwise required by law; or (iv) if
expressly consented to by the Company.
(d) The parties agree that a violation of any provision of any
of the foregoing agreements not to compete or disclose, or any provision
thereof, will cause irreparable damage to the Company, and the Company shall
be entitled (without any requirement of posting a bond or other security), in
addition to any other rights and remedies which it may have, at law or in
equity, to an injunction enjoining and restraining the Employee from doing or
continuing to do any such act or any other violations or threatened
violations of this Section 6.
(e) Any interest in patents, patent applications, inventions,
copyrights, developments, and processes ("Such Inventions") which Employee
now or hereafter during any period he is employed by the Company may,
directly or indirectly, own or develop relating to the fields in which the
Company may then be engaged shall belong to the Company; and, forthwith upon
request of the Company, Employee hereby agrees that he shall execute all such
assignments and other documents and take all such other action as the Company
may reasonably request in order to vest in the Company all of his right,
title, and interest in and to Such Inventions, free and clear of all liens,
charges, and encumbrances.
(f) The Employee acknowledges and agrees that the restrictive
covenants set forth in this Section 6 (the "Restrictive Covenants") are
reasonable and valid in geographical and temporal scope and in all other
respects. If any court determines that any of the Restrictive Covenants, or
any part thereof, is invalid or unenforceable, the remainder of the
Restrictive Covenants shall not thereby be affected and shall be given full
force and effect, without regard to the invalid or unenforceable parts.
(g) If any court determines that any of the Restrictive
Covenants, or any part thereof, is invalid or unenforceable for any reason,
such court shall have the power to modify such Restrictive Covenant, or any
part thereof, and, in its modified form, such Restrictive Covenant shall then
be valid and enforceable.
7. Termination. (a) Notwithstanding anything herein contained, if on
or after the date hereof and prior to the end of the Employment Term,
Employee is terminated For Cause (as defined below), then the Company shall
have the right to give notice of termination of Employee's services hereunder
as of a date to be specified in such notice (which may not be less than
fourteen (14) days following the mailing of such notice), and this Agreement
shall terminate on the date so specified. Termination "For Cause" shall mean
Employee shall (i) be convicted of a felony crime, (ii) commit any act, or
omit to take any action, in bad faith and to the material detriment of the
Company, (iii) commit an act of moral turpitude to the material detriment of
the Company, (iv) commit an act of fraud against the Company, (v) refuse to
implement, or adhere to, reasonable policies or directives of the Board, or
(vi) materially breach any term of this Agreement (including Employee's
voluntary resignation or termination of this Agreement prior to the end of
the Employment Term) and fail to correct such breach within ten (10) business
days after written notice thereof; provided, that in the case of a
termination pursuant to (ii), (iii), (iv), (v) or (vi), such determination
must be made by the Board after a meeting at which Employee was given an
opportunity to explain such actions. In the event this Agreement is
terminated For Cause, then Employee shall be entitled to receive only his
salary at the rate provided in Section 3 to the date on which termination
shall take effect plus any compensation which is accrued but unpaid on the
date of termination.
(b) In the event that Employee shall be physically or mentally
incapacitated or disabled or otherwise unable fully to discharge his duties
hereunder for a period of thirty (30) consecutive or non-consecutive days
during the Employment Term, then this Agreement shall terminate upon notice
in writing to Employee, and no further compensation (other than accrued but
unpaid salary or bonus through the date of termination) shall be payable to
Employee, except as may otherwise be provided under any disability insurance
policy or similar instrument.
(c) In the event that Employee shall die during the Employment
Term, then this Agreement shall terminate on the date of Employee's death,
and no further compensation (other than accrued but unpaid salary or bonus
through the date of death) shall be payable to Employee, except as may
otherwise be provided under any insurance policy or similar instrument.
(d) In the event that this Agreement is terminated
Without Cause, Employee shall receive severance pay consisting of a single
lump sum distribution (with no present value adjustment) equal to 2.99 times
the compensation paid during the preceding 12 months, and all outstanding
stock options shall fully vest and become immediately exercisable.
8. Mergers, Etc. In the event of a future disposition of the
properties and business of the Company, substantially as an entirety, by
merger, consolidation, sale of assets, sale of stock, or otherwise, then the
Company may elect to assign this Agreement and all of its rights and
obligations hereunder to the acquiring or surviving corporation. Employee
shall have the right to terminate this Agreement by written notice given
within three (3) months of the date of such acquisition. Upon such
termination, Employee shall receive severance pay consisting of a single lump
sum distribution (with no present value adjustment) equal to 3.99 times the
compensation paid during the preceding 12 months (or, in the case such
termination occurs prior to the employee's completion of 12 months of
service, the distribution shall equal 3.99 times the sum of the employee's
annual base salary plus the first years bonus as outlined in section 3(d)),
and all outstanding stock options shall fully vest and become immediately
exercisable.
9. Certain Additional Payments by the Company. Anything in this
Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the Company to or for the
benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
Section 9) (a "Payment") would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up" Payment) in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income taxes (and
any interest and penalties imposed with respect thereto) and Excise Tax
imposed upon the Gross-Up payment equal to the Excise Tax imposed upon the
Payments.
(a)Subject to the provisions of Section 9 (c), all determination required to be
made under this Section 9, including whether and when a Gross-Up payment is
required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by the certified
public accounting firm which serves as the Company's auditor immediately
prior to the Change of Control (the "Accounting Firm"), which shall provide
detailed supporting calculations both to the Company and the Executive within
15 business days of the receipt of notice from the Executive that there has
been a Payment, or such earlier time as is requested by the Company or the
Executive. In the event that such Accounting Firm declines to act, the
Company shall appoint another nationally recognized accounting firm (which is
acceptable to the Executive) to make the determinations required hereunder
(which accounting firm shall then be referred to as the Accounting Firm
hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Section 9, shall be paid by the Company to the Executive within five days of
the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies pursuant to Section 9 (c) and the Executive thereafter is required
to make a payment of any Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such Underpayment shall
be promptly paid by the Company to or for the benefit of the Executive.
(b)The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than fifteen days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies the Executive in writing prior to
the expiration of such period that it desires to contest such claim, the
Executive shall:
(i) give the Company any information reasonably requested by the Company
relating to such claim,
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company,
(iii)cooperate with the Company in good faith in order effectively to
contest such claim, and
(iv) permit the Company to participate in any proceedings relating to such
claim;
provided, however, that the Company shall ear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall defend, indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of expenses. Without limitation on the foregoing
provisions of this Section 9 (c), the Company shall control all proceedings
taken in connection with such contest and, at its sole option, may pursue or
forgo any and all administrative appeals, proceedings, hearing and
conferences with the taxing authority in respect of such claim and may, at
its sole option, either direct the Executive to pay the tax claimed and xxx
for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company shall determine; provided, however,
that if the Company directs the Executive to pay such claim and xxx for a
refund, the Company shall advance the amount of such payment to the
Executive, on an interest-free basis and shall defend, indemnify and hold the
Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect
to such advance or with respect to any imputed income with respect to such
advance; and further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control
of the contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder, and the Executive shall be entitled to
settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 9 (c), the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject
to the Company's complying with the requirements of Section 9 (c)) promptly
pay to the Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Executive of an amount advanced by the Company pursuant to
Section 9 (c), a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such determination, then
such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount
of Gross-Up Payment required to be paid. 10. Certain Definitions. As used
herein, the following terms shall have the following meanings:
"Affiliate" of a person shall mean any other person that directly or
indirectly controls, is controlled by, or is under common control with the
person specified. For the purposes of this Agreement, "control," when used
with respect to any person, shall mean the power to direct the management and
policies of such person, whether through the ownership of securities, by
contract or otherwise.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, government or any other entity.
"Subsidiary" shall mean, in respect of any person, any corporation,
association, partnership or other business entity of which more than fifty
(50%) percent of the total voting power of shares of capital stock or other
interests (including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) such person, (ii) such person and one or more Subsidiaries
or Affiliates of such person or (iii) one or more Subsidiaries or Affiliates
of such person.
11. Survival. The covenants, agreements, representations, and
warranties contained in or made pursuant to this Agreement (unless otherwise
stated therein) shall survive the termination of this Agreement, irrespective
of any investigation made by or on behalf of any party.
12. Modification. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements between them concerning such subject
matter, and may be modified only by a written instrument duly executed by
each party.
13. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or delivered against receipt to the
party to whom it is to be given, at the address of such party set forth in
the preamble to this Agreement (or to such other address as the party shall
have furnished in writing in accordance with the provisions of this Section
13). In the case of a notice to the Company, a copy of such notice (which
copy shall not constitute notice) shall be delivered to Camhy Xxxxxxxxx &
Xxxxx LLP, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx X. Annex, Esq. Notice to the estate of Employee shall be sufficient if
addressed to Employee as provided in this Section 13. Any notice or other
communication given by certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's address, which
notice shall be deemed given at the time of receipt thereof.
14. Waiver. Any waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party to insist upon strict
adherence to any term of this Agreement on one or more occasions shall not be
considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement. Any
waiver must be in writing and signed by the party against whose waiver is
asserted.
15. Withholding. All payments required to be made by the Company
to the Employee under this Agreement shall be subject to withholding taxes,
Social Security and other payroll deductions in accordance with the Company's
policies applicable to senior executives of the Company and the provisions of
any applicable employee benefit plan or program of the Company.
16. Binding Effect. Employee's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to encumbrance or the claims of Employee's creditors,
and any attempt to do any of the foregoing shall be void. The provisions of
this Agreement shall be binding upon and inure to the benefit of Employee and
his heirs and personal representatives, and shall be binding upon and inure
to the benefit of the Company and its successors and those who are its
assigns under Section 8.
17. Headings. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
18. Counterparts; Governing Law. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. It shall
be governed by, and construed in accordance with, the laws of the State of
New York, without given effect to the rules governing the conflicts of laws.
Each of the parties hereto hereby irrevocably submits to the jurisdiction of
the courts of the State of New York, County of New York, and of any federal
court located in the State of New York, County of New York, in connection
with any action or proceeding arising out of or relating to, or a breach of,
this Agreement. Each of the parties hereto agrees that such court may award
reasonable legal fees and expenses to the prevailing party.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
MARKETING SERVICES GROUP, INC.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Chairman & CEO
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
