Exhibit 10.32
CHAMPION EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") dated as of March 11, 2002 is by
and between Xxxxxx.xxx, Inc., a Delaware corporation ("the Company"), and
Xxxxxxx X. Xxxxxxxx ("Executive"), in connection with the Company's engagement
of Executive for personal services.
1. EMPLOYMENT; DUTIES AND ACCEPTANCE:
Employment by Company.
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The Company hereby engages Executive, and Executive hereby agrees to serve
as President and Chief Operating Officer of the Company, on the terms and
conditions of this Agreement. Throughout the Term of this Agreement, Executive
shall, subject to the provisions contained herein, devote substantially all of
his work time to the employment described hereunder. Executive shall report
solely to the Chief Executive Officer. All executive level officers other than
the Chief Executive Officer and Chief Financial Officer (and those individuals
reporting to such officers) shall report to the Executive. As long as Executive
is acting as President and Chief Operating Officer, Executive shall be a member
of the Board of Directors, but shall resign from the Board of Directors at such
time as he is not acting in such capacity.
Location of Employment.
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Executive shall be based in Philadelphia, Pennsylvania. However, Executive
recognizes that from time to time Executive will need to travel to the Company's
headquarters in Woodland Hills, California to fulfill his responsibilities.
Duties.
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Executive shall have the following duties:
(a) Build a strong management and operating team, implementing
effective motivational initiatives such as gain-sharing incentives, with a focus
on building shareholder value.
(b) Focus on operations and, as needed, take corrective actions to
maintain EBITDA performance as the key benchmark.
(c) Establish performance metrics beyond financial performance.
(d) Work with Magna, Inc., which is a key ally of the Company and
located in Pennsylvania, and work on racing and entertainment products that are
in and around the eastern seaboard.
(e) Evaluate a wide variety of initiatives and organization activities
from an operations perspective (e.g. acquisitions, new clients, new ventures,
etc.).
(f) Establish and ensure effective execution of
management/organization practices and processes that drive results and employee
satisfaction.
(g) Develop, monitor and adjust functional business plans based on
financial targets and changing business environments.
(h) Maintain close contact with key customers and local and state
governments in order to be aware of and anticipate market trends, competitive
actions or other requirements, and scrutinize activities of competitors.
(i) Lead or assist, as appropriate, in the resolution of marketplace
operation issues or field crises that may arise.
(j) Support the Chief Executive Officer and Chairman of the Board in
the management of investor relations activities such as working with Wall Street
analysts, participating in quarterly conference calls, investor conferences,
investment requirements and other related shareholder events.
(k) Participate in mergers and acquisition projects and due diligence,
and drive the integration of newly acquired operations.
(l) Serve as functional consultant/advisor to marketing/sales efforts.
(m) Perform such other executive duties as the Chief Executive Office
may reasonably require.
Outside Business Interests.
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Executive may serve, with the approval of the Chief Executive Officer which
approval shall not be unreasonably withheld, on the boards of directors of, or
in an advisory capacity to, other entities, charitable organizations and
not-for-profit corporations; and may pursue passive investments, provided that
such activities do not unreasonably interfere with Executive's duties and
responsibilities to the Company or create a conflict of interest with the
Company.
2. TERM:
The term of Executive's employment hereunder shall commence as of the date
hereof (the "Effective Time") and end on March 10, 2005 (the "Initial Term")
unless sooner terminated pursuant to Section 7 hereof. The Initial Term will
renew automatically for successive two-year terms unless a party delivers
written notice to the other party terminating the Initial Term or a renewal term
at least 180 days before the expiration of the Initial Term
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or a renewal term, as the case may be. As used in this Agreement, the word the
"Term" shall mean the Initial Term and any and all renewal terms.
3. COMPENSATION AND BENEFITS:
(a) Salary.
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During the first year of the Term, Executive shall receive a salary (the
"Annual Salary") at the rate of $200,000 per annum. During the second year of
the Term, Executive shall receive an Annual Salary of $225,000 or, if the
Company is profitable for the first year of the Term, an Annual Salary of
$250,000. During the third year of the Term, Executive shall receive an Annual
Salary of $225,000 or, if the Company is profitable for the second year of the
Term, an Annual Salary of $275,000. All Salary shall be less such deductions as
shall be required to be withheld by applicable law and regulations and shall be
pro-rated for any period that does not constitute a full twelve (12) month
period. For purposes of determining profitability, the applicable period shall
be April 1 to March 31 and shall be based on EBITDA, excluding any extraordinary
items, as reflected in the Company's securities filings.
(b) Bonuses.
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Executive shall be entitled to bonuses as follows:
(i) Executive shall receive $25,000 as a signing bonus upon
execution of this Agreement. Any other bonus for the first year of the Term
shall be at the Board's discretion with no guaranteed minimum.
(ii) For the second year of the Term, a maximum bonus at the
Board's discretion, but Executive shall receive not less than 40% of the Annual
Salary based on mutually agreed upon business objectives, provided, that in any
event Executive shall receive at least 20% of the Annual Salary if the Company
is profitable for the second year of the Term.
(iii) For the third year of the Term, a maximum bonus at the
Board's discretion, but Executive shall receive not less than 45% of the Annual
salary based on mutually agreed upon business objectives, provided, that in any
event Executive shall receive at least 22.5% of the Annual Salary if the Company
is profitable for the third year of the Term.
(iv) The business objectives for years two and three of the Term
shall be determined before the start of each year of the Term. Profitability
shall be determined as set forth in subparagraph (a) above.
(c) Stock Options.
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Executive is hereby granted 400,000 stock options pursuant to the Company's
1998 Stock Option Plan. The 400,000 stock options will have an exercise price
equal to the closing price of the Company's Common Stock on the Effective Time.
The stock options will vest as follows: the first 100,000 options, ninety (90)
days from the Effective Time, and the remaining options at the rate of 1/36 per
month commencing with the Effective Time. During the second and third years of
the Term, Executive shall be eligible to receive stock options at the discretion
of the Board, provided, however that Executive shall be granted stock options in
amounts and on terms no less favorable than those as may be granted to any other
executive officer of the Company other than the Chief Executive Officer and
Xxxxxxxx Xxxxx. To the extent of any conflict between this Agreement and the
Stock Option plan, this Agreement shall control.
Any unvested options shall terminate as provided in the Company's 1998
Stock Option Plan or as otherwise set forth herein.
All unvested options of the Executive shall immediately vest upon a "Change
of Control" if the Executive is employed with the Company at the time of a
Change of Control.
For purposes of this Agreement, the term "Change of Control" shall mean, a
merger, acquisition or other corporate transaction where (1) substantially all
the Company's assets or fifty percent (50%) or more of the outstanding common
stock of the Company is sold or acquired, or (2) upon the consummation of any
transaction involving over fifty percent (50%) of the assets or outstanding
stock of the Company, the Company's existing Board as of the date immediately
preceding the consummation of the transaction no longer constitute a majority of
the Board as of any date within the twelve (12) consecutive months subsequent to
consummation of the transaction.
4. PARTICIPATION IN EXECUTIVE BENEFIT PLANS:
(a) Fringe Benefits. Executive shall be permitted during the Term to
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participate in any group life, medical, hospitalization, dental, health and
accident and disability plans, supplemental health care plans and plans
providing for life insurance coverage, and any other plans and benefits,
generally maintained by Company for executives of the stature and rank of
Executive during the Term hereof, each in accordance with the terms and
conditions of such plans (collectively referred to herein as "Fringe Benefits");
provided, however, that the Executive shall be eligible for 401(k) withdrawal,
matching, and full-vesting commencing with the Effective Time and provided
further that the Company shall not be required to establish or maintain any such
Fringe Benefits.
(b) Vacation. Executive shall be entitled, in addition to sick days
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and days on which Company is closed, six weeks of paid vacation per year.
(c) Expenses. The Company will reimburse Executive for reasonable and
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customary travel and accommodation costs, entertainment and other business
expenses incurred as a necessary part of discharging the Executive's duties
hereunder, subject to
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receipt of reasonable and appropriate documentation by the Company and in
accordance with Company policy. The Company will also reimburse Executive $750
per month for all business related operating expenses of Executive's automobile.
The Company will reimburse Executive for reasonable legal fees (not to exceed
$3,500) incurred in connection with the negotiation and preparation of this
Agreement. Additionally, Executive will receive or be reimbursed for a cellular
phone and laptop computer, will be provided with an administrative assistant
based at the Company headquarters in Woodland Hills, California, and, to the
extent not covered by medical insurance, reimbursement for an annual physical.
5. CERTAIN COVENANTS OF EXECUTIVE:
Without in any way limiting or waiving any right or remedy accorded to
Company or any limitation placed upon Executive by law, Executive agrees as
follows:
(a) Confidential Information: Executive agrees that, neither during
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the Term nor at anytime thereafter shall Executive (i) disclose to any person,
firm or corporation not employed by the Company or any affiliate of either (the
"Protected Company") or not engaged to render services to any Protected Company
or (ii) use for the benefit of himself, or others, any confidential information
of any Protected Company obtained by the Executive prior to the execution of
this Agreement, during the Term or any time thereafter, including, without
limitation, "know-how," trade secrets, details of suppliers, pricing policies,
financial data, operational methods, marketing and sales information or
strategies, product development techniques or plans or any strategies relating
thereto, technical processes, designs and design projects, and other proprietary
information of any Protected Company; provided, however, that this provision
shall not preclude the Executive from (x) upon advice of counsel and notice to
the Company, making any disclosure required by any applicable law or (y) using
or disclosing information known generally to the public (other than information
known generally to the public as a result of any violation of this Section
5(a)).
(b) Property of Company. Any interest in trademarks, service-marks,
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copyrights, copyright applications, patents, patent applications, slogans,
developments and processes which the Executive, during the Term, may develop
relating to the business of the Company in which the Company may then be engaged
and any memoranda, notes, lists, records and other documents (and all copies
thereof) made or compiled by the Executive or made available to the Executive
concerning the business of any Protected Company shall belong and remain in the
possession of any Protected Company, and shall be delivered to the Company
promptly upon the termination of the Executive's employment with Company or at
any other time on request.
(c) Non-Interference. Executive will not, during the Term hereof and
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for a period of one (1) year after the Term induce any person who is an employee
of the Company to terminate his relationship with the Company.
(d) Non-Competition. Without the prior written consent of the Company,
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Employee shall not be employed by the Internet gaming divisions of Magna, Inc.,
TVG, Inc.
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or by any other Internet gaming division of a direct competitor of the Company
during, or for one year after the termination of, his employment with the
Company. The parties agree that, as of the date this Agreement is being
executed, the only existing competitors of the Company are the Internet gaming
divisions of Magna, Inc. and TVG, Inc.
6. OTHER PROVISIONS:
(a) Rights and Remedies Upon Breach. If the Executive breaches, or
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threatens to commit a breach of, any of the provisions of Section 5 hereof (the
"Restrictive Covenants"), the Company shall have the following rights and
remedies, each of which rights and remedies shall be independent of the other
and severally enforceable, and all of which rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Company at law or in equity.
(b) Severability of Covenants. If any court determines that any of the
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Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
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remainder of the Restrictive Covenants shall not thereby be affected and shall
be given full effect, without regard to the invalid portions.
(c) Blue-Penciling. If any court construes any of the Restrictive
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Covenants, or any part thereof, to be unenforceable because of the duration or
geographic scope of such provision, such court shall have the power to reduce
the duration or scope of such provision and, in its reduced form, such provision
shall then be enforceable.
(d) Enforceability in Jurisdictions. The parties intend to and hereby
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confer jurisdiction to enforce the Restrictive Covenants upon the courts of any
jurisdiction within the geographical scope of such Restrictive Covenants. If the
courts of any one or more of such jurisdictions hold the Restrictive Covenants
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of the parties that such determination not bar or in any way affect
Company's right to the relief provided in this Section 6 in the courts of any
other jurisdiction within the geographical scope of such Restrictive Covenants,
as to breaches of such Restrictive Covenants in such other respective
jurisdictions, such Restrictive Covenants as they relate to each jurisdiction
being, for this purpose, severable into diverse and independent covenants.
(f) Injunctive Relief. Executive agrees and understands that the
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remedy at law for any breach by Executive of the provisions of Section 5 hereof
may be inadequate and that damages resulting from such breach may not be
susceptible to being measured in monetary terms. Accordingly, it is acknowledged
that upon Executive's breach of any provision of Section 5 hereof, the Company
shall be entitled to seek to obtain from any court of competent jurisdiction
injunctive relief to prevent the continuation of such breach. Nothing contained
herein shall be deemed to limit the Company's remedies at law or in equity for
any breach of the provisions of Section 5 hereof which may be available to the
Company.
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7. TERMINATION:
(a) Termination Upon Death. If, during the Term, Executive dies,
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Executive shall be entitled to receive Executive's Annual Salary, any unpaid
bonus for the prior year, accrued share of the Bonus for that Fiscal Year and
unused vacation, if any, and Fringe Benefits earned through the date of
Executive's death. In addition, Executive shall receive all vested options, and
all unvested options of the Executive shall vest during the periods described in
Section 3(c) of this Agreement. All such options shall be exercisable for up to
five years from the date of vesting.
(b) Termination Upon Disability. If, during the Term, Executive should
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become so physically or mentally disabled whether totally or partially, that
Executive is unable to perform the duties, functions and responsibilities
required hereunder for (i) a period of at least six (6) consecutive months or
(ii) shorter periods aggregating at least twelve (12) months ("Disability"),
then in such event, Company may, at any time thereafter, by written notice to
Executive, terminate Executive's employment hereunder. Executive agrees to
submit to reasonable medical examinations upon the request of Company to
determine whether he has a Disability. The determination of whether or not
Executive is subject to a Disability shall be made jointly by the Executive's
doctor (the "Executive's Doctor") and by a board certified doctor selected by
Company of the appropriate recognized field of medicine or psychiatric practice
who has examined Executive (the "Company's Doctor"). If the Executive's Doctor
and the Company's Doctor cannot agree on such determination, then they shall
select a mutually agreeable board certified doctor or practitioner of the
appropriate recognized field of medicine or psychiatric practice (the "Third
Doctor") to make the determination. After the Third Doctor has examined the
Executive and reviewed the findings of the Executive's Doctor and the Company's
Doctor, the Third Doctor shall determine whether the Executive has a Disability,
and his or her determination shall be final and binding. The Company and
Executive shall pay for the cost and expense of their own doctors, and the
Company shall pay for the cost of the Third Doctor, should the Third Doctor be
required. If Executive's services or his employment with the Company are
terminated, as aforesaid, Executive shall be entitled to receive Executive's
Annual Salary, any unpaid bonus for the prior year, accrued share of the Bonus
for that Fiscal Year and unused vacation, if any, and Fringe Benefits earned
through the date of Executive's termination. In addition, Executive shall
receive all vested options, and all unvested options of the Executive shall vest
during the periods described in Section 3(c) of this Agreement. All such options
shall be exercisable for up to five years from the date of vesting.
(c) Designation of Beneficiary. The parties hereto agree that the
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Executive shall designate, by written notice to the Company, a beneficiary to
receive the payments and options described in Section 7 in the event of his
death and the Executive may change the designation of any such beneficiary from
time to time by written notice to the Company. In the event the Executive fails
to designate a beneficiary as herein provided, any payments which are to be made
to the Executive's designated beneficiary under Section 7 shall be made to the
Executive's widow, if any, during her lifetime. If the Executive has no
designees or widow, such payments shall be paid to the Executive's estate.
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(d) Termination for Cause. As used in this Agreement, the term "Cause"
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means only any of the following:
(i) the Executive's theft or embezzlement of the Company's money,
equipment, or securities;
(ii) the Executive's conviction of a felony (other than a traffic
violation) which results in material injury to the Company;
(iii) the Executive's willful act of disloyalty that is intended
to and results in material injury to the Company;
(iv) the failure of the Executive to be licensable in his
capacity as Chief Operating Officer of the Company;
(v) the Executive's chronic alcoholism or addiction to
non-medically prescribed drugs; or
(vi) breach by the Executive of his confidentiality, no
solicitation, and non-competition covenants contained in his employment
agreement with the Company.
Any act or omission of the Executive based upon authority given pursuant to
the Articles of Incorporation of the Company or Bylaws of the Company or a
resolution duly adopted by the Company's Board of Directors or based upon the
advice of counsel for the Company shall be conclusively deemed to be done by
Executive in good faith and in the best interests of the Company.
The Company shall have the option to terminate the services of Executive if
there is "Cause" as defined above. If Executive's services are terminated as set
forth in this subsection, Executive's services shall cease as of such effective
date of termination and all compensation shall cease as of such effective date.
(e) Termination With Good Reason or Without Cause. If during the Term
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the Executive resigns for Good Reason (defined below) or his employment or
services are terminated without Cause (as defined above):
(i) The Company will pay Executive (a) his salary and unused
vacation pay through the last day of his employment with the Company, (b) his
unpaid reimbursable business expenses incurred by him through the last day of
his employment with the Company, and (c) any earned but unpaid annual bonus
compensation for the prior contract year, and the bonus he would have received
had he remained in the employ of the Company for the contract year then in
progress prorated.
(ii) The Company will pay Executive the greater of (a) his Annual
Salary at the time of such termination for one (1) year, or (b) the Annual
Salary the Executive would have been paid had his employment not been terminated
without Cause or for Good Reason.
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(iii) For the remainder of the Term, the Company shall continue
benefits, at its expense, to Executive and his immediate family at least equal
to those which would have been provided to him and them in accordance with the
plans, programs, practices and policies of the Company if his employment had not
ended or, if more favorable to Executive, as in effect generally at any time
thereafter with respect to other executives of the Company and their families,
provided, however, that if Executive becomes reemployed with another employer
and is eligible to receive medical or other welfare benefits under another
employer provided plan, the medical and other welfare benefits of the Company
shall be secondary to those provided under such other plan during such
applicable period of eligibility.
(iv) All stock options of the Executive shall immediately vest
and be exercisable for up to one (1) year following the date of the termination
of the Executive's employment with the Company.
(v) The Company will provide Executive with (a) first-class
outplacement services for up to six months with an outplacement firm mutually
agreed to by the Company and Executive; (b) a favorable reference; and (c) an
agreed-upon designated contact for references. In addition, at Executive's
option, and taking into account the Company's needs as a public company, an
agreed upon statement will be issued to employees and an agreed-upon press
release will be issued to the media concerning the departure of Executive.
(vi) For the first year after the termination of his employment,
Executive shall not be required to seek other employment or take other action in
order to mitigate his damages or to be entitled to the benefits and payments
above. During the first year after the termination of his employment, the
Company shall not be entitled to set off against such benefits and payments due
or any other amounts of money payable to Executive any amounts he earns in other
employment or engagement after the termination of his employment with the
Company without Cause or for Good Reason or any amounts that he might or could
have earned in other employment had he sought such other employment. After the
first year following the termination of his employment, Executive shall be
required to seek other employment or take other action in order to mitigate his
damages to be entitled to the benefits and payments after such first year. After
the first year following the termination of his employment, Company may set off
against such benefits and payments due or any other amounts of money payable to
Executive amounts he earns in other employment or engagement after the first
year following the termination of his employment with the Company without Cause
or for Good Reason or any amounts that he might or could have earned in other
employment had he not failed to seek such other employment.
As used herein, Good Reason shall mean only:
(i) withdrawal by the Company from Executive of any substantial
part of his duties then being performed, or responsibility or authority then
being carried, by him, or a material change in the Executive's reporting lines;
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(ii) assignment by the Company to Executive of substantial
additional duties or responsibilities which are inconsistent with the duties or
responsibilities then being carried by Executive;
(iii) material reduction in the level of Executive's
responsibility, authority, autonomy, title, compensation, executive perquisites,
or other employee benefits;
(iv) failure to keep Executive in office as President and COO
and/or on the Board of Directors of the Company;
(v) the Company's material breach of Executive's employment
agreement (or any other agreement between Executive and the Company); and the
failure of the Company to cure such breach within thirty (30) days of notice
thereof;
(vi) material fraud on the part of the Company; or
(vii) discontinuance of the active operation of business of the
Company, or insolvency of the Company, or the filing by or against the Company
of a petition in bankruptcy or for reorganization or restructuring pursuant to
applicable insolvency or bankruptcy law.
8. EXECUTIVE'S REPRESENTATIONS AND WARRANTIES:
(a) Right to Enter Into Agreement. Executive has the unfettered right
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to enter into this entire Agreement on all of the terms, covenants and
conditions hereof; and Executive has not done or permitted to be done anything,
which may curtail or impair any of the rights granted to Company herein.
(b) Breach Under Other Agreement or Arrangement. Neither the execution
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and delivery of this Agreement nor the performance by Executive of any of his
obligations hereunder will constitute a violation or breach of, or a default
under, any agreement, arrangement or understanding, or any other restriction of
any kind, to which Executive is a party or by which Executive is bound.
9. USE OF NAME:
The Company shall have the right during the Term hereof, , subject to the
approval of the Executive, which approval Executive will not unreasonably
withhold, to use Executive's name, biography and approved likenesses in
connection with Company's business.
10. NOTICES:
(a) Delivery. Any notice, consent or other communication under this
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Agreement shall be in writing and shall be delivered personally, telexed, sent
by facsimile transmission or overnight courier (regularly providing proof of
delivery) or sent by
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registered, certified, or express mail and shall be deemed given when so
delivered personally, telexed, sent by facsimile transmission or overnight
courier, or if mailed two (2) business days after the date of deposit in the
United States mail as follows: to the parties at the following addresses (or at
such other address as a party may specify by notice in accordance with the
provisions hereof to the other):
If to Executive, to his address at:
000 Xxxxxxxx Xxxxx
Xxxxx, Xx. 00000
Copy to:
Xxxxxxxxxx Xxxxxxx Xxxxxxx & Xxxx Ltd.
00 Xxxx Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx, Esq.
If to Company, to its address at:
Xxxxxx.xxx, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Fax (000) 000-0000
Copy to:
Loeb & Loeb LLP
00000 Xxxxx Xxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, XX, 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(b) Change of Address. Either party may change its address for notice
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hereunder by notice to the other party in accordance with this Section 11.
11. COMPLETE AGREEMENT; MODIFICATION AND TERMINATION:
This Agreement contains a complete statement of all the arrangements
between the parties with respect to the matters covered hereby and, supersedes
all existing agreements between the parties concerning the subject matter
hereof. This Agreement may be amended, modified, superseded or canceled, and the
terms and conditions hereof may be waived, by the party waiving compliance. No
delay on the part of any party in exercising any right or
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remedy shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right or remedy, nor any single or partial exercise of any
such right or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy.
12. HEADINGS:
The headings in this Agreement are solely for the convenience of reference
and shall not affect its interpretation.
13. INDEMNIFICATION:
The Company will indemnify, defend, and hold Executive harmless from and
against any and all demands, actions, claims, suits, liabilities, losses,
damages, fees (including reasonable attorneys' fees) and expenses relating to
any acts or omissions to act in the course or scope of his duties he performs on
behalf of the Company while employed by it and/or while serving as an officer
and/or director of the Company, and to provide indemnification and officers and
directors liability insurance to him at least to the same extent that it
provides such indemnification and insurance to the officers and directors of the
Company. Executive will have the option to select his own counsel or be
represented by counsel for the Company. The Company shall pay for or reimburse
Executive for any fees and expenses covered by this Section as and when
incurred. The provisions herein shall survive the termination of Executive's
employment with the Company for any reason.
14. ATTORNEYS' FEES:
If either the Company or the Executive brings an action to enforce the
Executive's employment agreement, the prevailing party will be entitled to
recover its/his reasonable attorneys' fees.
WHEREFORE, the parties hereto have executed this Agreement as of the day
and year first above written.
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Xxxxxxx X. Xxxxxxxx
Agreed to and Accepted:
Xxxxxx.xxx, Inc., a
Delaware corporation
By:
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Its:
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