EMPLOYMENT AGREEMENT
Exhibit
10.2
THIS
EMPLOYMENT AGREEMENT (this “Agreement”)
is dated as of November 19, 2009 (the “Effective
Date”), and is by and between Alamo Energy Corp., a Nevada corporation
(the “Corporation”),
and Xxxxxx Xxxx (the “Executive”).
WHEREAS,
the Corporation desires to employ the Executive, and the Executive
desires to be employed by the Corporation and to render services to it, on the
terms and subject to the conditions in this Agreement.
NOW,
THEREFORE, in consideration of the premises and the respective
undertakings of the Corporation and the Executive set forth below, the
Corporation and the Executive agree as follows:
1.
Employment.
The Corporation hereby employs the Executive in the position of Chief
Financial Officer, and the Executive accepts such employment and agrees to
perform services for the Corporation, for the period and upon the other terms
and conditions set forth in this Agreement. As Chief Financial Officer, the
Executive shall be responsible for:
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overseeing
all accounting practices of the Corporation, including preparing budgets,
financial reports, tax and audit
functions;
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directing
financial strategy, planning and forecasts;
and
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such
other duties, consistent with the Executive’s position, as the Board may
delegate to the
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Executive
from time to time.
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The
Executive shall report to the Board.
The
Executive will devote sufficient business time and efforts to the performance of
the Executive’s duties and responsibilities under this Agreement and to the
business and affairs of Corporation, its subsidiaries and affiliates. The
Executive may engage in personal, charitable, professional and investment
activities to the extent such activities do not materially conflict or interfere
with the Executive’s duties and obligations under this Agreement or the
Executive’s ability to perform his duties and responsibilities under this
Agreement. During the Term (as such term is defined below), the Executive shall
not serve on the board of directors (or similar governing body) of any other
business entity which has competing interests with the Corporation without the
prior approval of the Board. The Executive shall resign from any such board of
directors (or similar governing body) on which he may serve (even if such
service has been approved by the Board) if the Executive’s activities on such
board (or other body) conflict or interfere with the performance of the
Executive’s duties for the Corporation.
2.
Term.
The “Term”
shall, unless sooner terminated as provided herein, be a period of three (3)
years commencing on the Effective Date and ending at the close of business on
the day before the third anniversary of the Effective Date (day before the third
anniversary of the Effective Date is referred to as the “Initial
Extension Date”). Notwithstanding the preceding sentence, on Initial
Extension Date and on each annual anniversary of the Initial Extension Date (the
Initial Extension Date and each annual anniversary thereof is referred to as an
“Extension
Date”), the Term shall be automatically extended through and shall end
with the close of business on the first (1st) anniversary of that Extension Date
(for example, on the Initial Extension Date the Period of Employment shall be
automatically extended through the close of business on the day before the
fourth anniversary of the Effective Date), unless at least sixty (60) days prior
to such Extension Date, the Corporation or the Executive has provided the other
with written notice that the Term shall not be extended or further extended, as
the case may be. The term “Term”
shall include any extension thereof pursuant to the preceding sentence.
Provision of notice that the Term shall not be extended or further extended, as
the case may be, shall not constitute a breach of this Agreement, and shall not
entitle the Executive to severance benefits pursuant to Section
7.
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3.
Compensation.
3.1
Base
Salary. As compensation in full for the services to be rendered by the
Executive under this Agreement during the Term, the Corporation shall pay to the
Executive a base salary at a monthly rate of Four Thousand Dollars ($4,000) per
month (the “ Base
Salary ”), which Base Salary shall be paid in accordance with the
Corporation’s normal payroll procedures and policies. The Base Salary amount
shall increase by Five Hundred Dollars ($500) after the last day of each of the
Corporation’s fiscal quarters during the first fiscal year of this Agreement.
The Base Salary amount shall be subject to annual review and increase (but not
decrease) by the Compensation Committee of the Board.
3.2
Bonus
Opportunity. For each fiscal year of the Corporation during the Term, the
Corporation shall grant to the Executive the opportunity to earn a
bonus. Each such bonus opportunity will be based on objectives
established with respect to that year, each as determined by the Compensation
Committee of the Board. The specific bonus opportunity with respect to a
particular fiscal year will be established by the Compensation Committee prior
to or within the first three months of that fiscal year.
3.3
Participation
in Benefit Plans. During the Term, the Executive shall also be entitled
to participate in all employee benefit plans or programs of the Corporation to
the extent that his position, title, tenure, salary, age, health and other
qualifications make him eligible to participate in accordance with the terms of
the applicable plans or programs. The Corporation does not guarantee the
adoption or continuance of any particular employee benefit plan or program
during the Term, and the Executive’s participation in any such plan or program
shall be subject to the provisions, rules and regulations applicable thereto and
as amended from time to time.
3.4
Withholding
Taxes. The Corporation may withhold from any compensation or other
benefits payable under this Agreement, all federal, state, city or other taxes
as shall be required to be withheld pursuant to any law or governmental
regulation or ruling.
4.
Confidential
Information. Except
as provided below, the Executive shall not, during the Term or at any time
thereafter, divulge, furnish or make accessible to anyone or use in any way
(other than in the ordinary course of the business of the Corporation or any of
its respective affiliates) any confidential or secret knowledge or information
of the Corporation which the Executive has acquired or become acquainted with or
will acquire or become acquainted with prior to the termination of the period of
his employment by the Corporation (including employment by the Corporation or
any affiliated or predecessor companies prior to the date of this Agreement),
whether developed by himself or by others, concerning any trade secrets,
confidential or secret designs, processes, formulae, plans, devices or material
(whether or not patented or patentable) directly or indirectly useful in any
aspect of the business of the Corporation, any customer or supplier lists of the
Corporation, any confidential or secret development or research work of the
Corporation, or any other confidential information or secret aspects of the
business of the Corporation. The Executive acknowledges that the above-described
knowledge or information constitutes a unique and valuable asset of the
Corporation and represents a substantial investment of time and expense by the
Corporation, and that any disclosure or other use of such knowledge or
information other than for the sole benefit of the Corporation and its
affiliates would be wrongful and would cause irreparable harm to the
Corporation. Both during and after the Term, the Executive shall refrain from
any acts or omissions that would reduce the value of such knowledge or
information to the Corporation. The foregoing obligations of confidentiality,
however, shall not apply to any knowledge or information which is now published
or which subsequently becomes generally publicly known, other than as a direct
or indirect result of the breach of this Agreement by the Executive. The
foregoing obligations of confidentiality shall not, however, limit the
Executive’s disclosure of information (1) to the extent necessary to comply with
government disclosure requirements or other applicable laws, (2) pursuant to
subpoena or order of any judicial, legislative, executive, regulatory or
administrative body, or for the Executive to enforce the Executive’s rights
under this Agreement, (3) to employees, advisors, counsel, financial advisors
and other third parties as may be necessary and appropriate in connection with
the proper performance and enforcement of this Agreement; and (4) pursuant to
the Executive’s normal reporting procedures as an executive of a publicly traded
company (e.g., pursuant to Xxxxxxxx-Xxxxx requirements or
otherwise).
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5.
Ventures.
If, during the Term, the Executive is engaged in or associated with the
planning or implementing of any project, program or venture involving the
Corporation and a third party or parties, all rights with respect to such
project, program or venture shall belong to the Corporation. Except as approved
by the Board, the Executive shall not be entitled to any interest in such
project, program or venture or to any commission, finder’s fee or other
compensation in connection therewith other than the salary to be paid to the
Executive as provided in this Agreement.
6.
Noncompetition
Covenant.
6.1
Agreement
not to Compete. The Executive agrees that during the Term of this
Agreement the Executive shall not, without the written consent of the Board,
directly or indirectly, engage in competition with the Corporation in any manner
or capacity (e.g., as an advisor, principal, agent, partner, officer, director,
stockholder, employee, member of any association, or otherwise) in any phase of
the business which the Corporation is conducting during the Term; provided,
however, that nothing herein shall prevent the Executive from investing as less
than five percent (5%) stockholder in the securities of any company
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6.2
Scope
of Covenant. The obligations of the Executive under Section 6.1 shall
apply to any geographic area in which the Corporation has engaged in business
during the Term.
6.3
Non-Solicitation.
The Executive agrees that during the Term and for a period of twenty-four
(24) months thereafter, he will not, without the prior written approval of the
Board, hire, solicit or endeavor to entice away from the Corporation or,
following termination of the Executive’s employment, otherwise interfere with
the relationship of the Corporation with any employee of the Corporation or one
of its subsidiaries who earned annually $50,000 or more as an employee of the
Corporation or one of its subsidiaries during the last twelve months of the
Executive’s own employment by the Corporation, or any person or entity who was,
within the then most recent prior 12-month period, a customer, supplier or
contractor of the Corporation or any of its affiliates.
7.
Termination.
7.1
Termination
of Employment. The Executive’s employment by the Corporation, and the
Term, may be terminated at any time during the Term by the Corporation: (1) with
Cause (as such term is defined below), or (2) without Cause, or (3) in the event
of the Executive’s death, or (4) in the event of the Executive’s Disability (as
such term is defined below) (in the case of Disability, the termination shall be
effective ten (10) days after notice thereof is given to the Executive). The
Executive’s employment by the Corporation, and the Term, may be terminated at
any time during the Term by the Executive, on no less than sixty (60) days prior
written notice to the Corporation. After the expiration of the Term, the Board
may continue the employment of the Executive and the Executive may accept the
employment on an at-will basis.
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7.2
Benefits
Upon Termination. If the Executive’s employment by the Corporation is
terminated during the Term for any reason by the Corporation or by the
Executive, or upon or following the expiration of the Term, the Corporation
shall have no further obligation to make or provide to the Executive, and the
Executive shall have no further right to receive or obtain from the Corporation,
any payments or benefits except:
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(a)
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the
Corporation shall pay the Executive (or, in the event of his death, the
Executive’s estate) any Accrued Obligations (as such term is defined
below); and
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(b)
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if,
during the Term (but not upon or following the expiration of the Term),
the Executive’s employment is terminated either by the Corporation or the
Executive due to the death or Disability of the Executive, by the
Corporation other than for Cause (as such term is defined below), the
Corporation shall, subject to the conditions set forth in the following
paragraph, also pay the Executive (or, in the event of the Executive’s
death, the Executive’s estate) a severance benefit equal to three months
of Base Salary. Subject to the conditions set forth in the following
paragraph, the aggregate amount of such severance benefit shall be paid in
a series of twelve (12) substantially equal monthly installments (without
interest, with each installment equal to approximately 1/12th of the
aggregate amount of the severance benefit) commencing with the month
following the month in which the Executive’s employment by the Corporation
terminates and continuing for the following eleven months until paid in
full (subject to the Executive’s compliance with the following paragraph
and the provisions of Section 6);
and
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(c)
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if,
during the Term (but not upon or following the expiration of the Term),
the Executive’s employment is terminated by the Corporation without Cause
(and, in each case, other than due to either (1) the Executive’s death, or
(2) a good faith determination by the Board that the Executive has a
Disability), the Corporation shall, subject to the conditions set forth in
the following paragraph, also pay the Executive a one-time lump sum amount
equal to three months of Base
Salary.
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As a
condition precedent to any Corporation obligation to the Executive pursuant to
Section 7.2(b) or (c) above, the Executive (or, in the event of his death, the
Executive’s estate on behalf of the Executive) shall, upon or promptly following
his last day of employment with the Corporation, provide the Corporation with a
valid, executed, written Release (as such term is defined below) (in a form
provided by the Corporation) and such release shall have not been revoked by the
Executive pursuant to any revocation rights afforded by applicable law. The
Corporation shall have no obligation to make any payment to the Executive
pursuant to Section 7.2(b) or (c) above unless and until the Release
contemplated by this paragraph becomes irrevocable by the Executive in
accordance with all applicable laws, rules and regulations.
The
Executive agrees that the payments contemplated by Section 7.2 shall constitute
the exclusive and sole remedy for any termination of his employment and the
Executive covenants not to assert or pursue any other remedies, at law or in
equity, with respect to any termination of employment. The Corporation and
Executive acknowledge and agree that there is no duty of the Executive to
mitigate damages under this Agreement. All amounts paid to the Executive
pursuant to Section 7.2 shall be paid without regard to whether the Executive
has taken or takes actions to mitigate damages.
The
foregoing provisions of this Section 7.2 shall not affect any rights that the
Executive may have under and with respect to a stock option or restricted stock
award, to the extent that such award was granted before the date that the
Executive’s employment by the Corporation terminates and to the extent expressly
provided in the written agreement evidencing such award.
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As used
herein, “Accrued
Obligations” means:
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any
Base Salary that had accrued but had not been paid prior to the date of
termination; and
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any
reimbursement of reasonable business expenses incurred by the Executive
prior to the
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termination
of the Executive's employment and in accordance with the Corporation's
expense
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reimbursement
policies and which had not previously been
paid.
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As used
herein, “Cause”
means:
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The
Executive’s willful and material failure to perform his duties hereunder
(other than any
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such
failure due to the Executive's physical or mental illness), or the
Executive's willful
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and
material breach of his obligations hereunder;
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The
Executive’s engaging in willful and serious misconduct that has caused or
is reasonably
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expected
to result in material injury to the Corporation;
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The
Executive’s being convicted of, or entering a plea of guilty or nolo
contendre to, a crime
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that
constitutes a felony; or
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The
Executive’s failure or inability to obtain or retain any license required
to be obtained or
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retained
by him in any jurisdiction in which the Corporation does or proposes to do
business.
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As used
herein, “Disability”
means a physical or mental impairment which substantially limits a major life
activity of the Executive and which renders the Executive unable to perform the
essential functions of the Executive’s position, even with reasonable
accommodation which does not impose an undue hardship on the Corporation, for
ninety (90) days in any consecutive one-hundred eighty (180) day period. The
Board reserves the right, in good faith, to make the determination of whether or
not a Disability exists for purposes of this Agreement based upon information
supplied by the Executive and/or his medical personnel, as well as information
from medical personnel (or others) selected by the Corporation or its
insurers.
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As used
herein, “Release”
shall mean a written release, discharge and covenant not to xxx entered into by
the Executive on behalf of himself, his descendants, dependents, heirs,
executors, administrators, assigns, and successors, and each of them, of and in
favor of the Corporation, its parent (if any), the Corporation’s subsidiaries
and affiliates, past and present, and each of them, as well as its and their
trustees, directors, officers, agents, attorneys, insurers, employees,
stockholders, members, representatives, assigns, and successors, past and
present, and each of them (the “releasees”), with respect to and from any and
all claims, wages, demands, rights, liens, agreements, contracts, covenants,
actions, suits, causes of action, obligations, debts, costs, expenses,
attorneys’ fees, damages, judgments, orders and liabilities of whatever kind or
nature in law, equity or otherwise, whether now known or unknown, suspected or
unsuspected, and whether or not concealed or hidden, which he may then own or
hold or he at any time theretofore owned or held or may in the future hold as
against any or all of said releasees, arising out of or in any way connected
with the Executive’s employment relationship with the Corporation and each of
its subsidiaries with which the Executive has had such a relationship, or the
termination of his employment or any other transactions, occurrences, acts or
omissions or any loss, damage or injury whatever, known or unknown, suspected or
unsuspected, resulting from any act or omission by or on the part of said
releasees, or any of them, committed or omitted prior to the date of such
release including, without limiting the generality of the foregoing, any claim
under Section 1981 of the Civil Rights Act of 1866, Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, the Family and Medical Leave Act of 1993, the California Fair
Employment and Housing Act, the California Family Rights Act, any other claim
under any other federal, state or local law or regulation, and any other claim
for severance pay, bonus or incentive pay, sick leave, holiday pay, vacation
pay, life insurance, health or medical insurance or any other fringe benefit,
medical expenses, or disability (except that such release shall not constitute a
release of any Corporation obligation to the Executive that may be due to the
Executive pursuant to Section 7.2(b) or (c), as applicable, upon the
Corporation’s receipt of such release or any obligations referred to in the last
paragraph of Section 7.2). The Release shall also contain the Executive’s
warrant that he has not theretofore assigned or transferred to any person or
entity, other than the Corporation, any released matter or any part or portion
thereof and that he will defend, indemnify and hold harmless the Corporation and
the aforementioned releasees from and against any claim (including the payment
of attorneys’ fees and costs actually incurred whether or not litigation is
commenced) that is directly or indirectly based on or in connection with or
arising out of any such assignment or transfer made, purported or
claimed.
7.4
Resignation
From Board. Upon or promptly following any termination of Executive’s
employment with the Corporation, the Executive agrees to resign from (1) each
and every board of directors (or similar body, as the case may be) of the
Corporation and each of its affiliates on which the Executive may then serve (if
any), and (2) each and every office of the Corporation and each of its
affiliates that the Executive may then hold, and all positions that he may have
previously held with the Corporation and any of its
affiliates.
7.5
Means
and Effect of Termination. Any termination of the Executive’s employment
under this Agreement shall be communicated by written notice of termination from
the terminating party to the other party. The notice of termination shall
indicate the specific provision(s) of this Agreement relied upon in effecting
the termination.
8.
Miscellaneous.
8.1
Governing
Law. This Agreement and all rights and obligations hereunder, including,
without limitation, matters of construction, validity and performance, is made
under and shall be governed by and construed in accordance with the internal
laws of the State of Nevada, without regard to principles of conflict of
laws.
8.2
Amendments.
No amendment or modification of this Agreement shall be deemed effective
unless made in writing and signed by all of the parties
hereto.
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8.3
No
Waiver. No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel to enforce any provisions of this
Agreement, except by a statement in writing signed by the party against whom
enforcement of the waiver or estoppel is sought. Any written waiver shall not be
deemed a continuing waiver unless specifically stated, shall operate only as to
the specific term or condition waived and shall not constitute a waiver of such
term or condition for the future or as to any act other than that specifically
waived.
8.4
Severability.
To the extent any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted herefrom and the remainder of such
provision and of this Agreement shall be unaffected and shall continue in full
force and effect. In furtherance and not in limitation of the foregoing, should
the duration or geographical extent of, or business activities covered by, any
provision of this Agreement be in excess of that which is valid and enforceable
under applicable law, then such provision shall be construed to cover only that
duration, extent or activities which may validly and enforceably be covered. The
Executive acknowledges the uncertainty of the law in this respect and expressly
stipulates that this Agreement be given the construction which renders its
provisions valid and enforceable to the maximum extent (not exceeding its
express terms) possible under applicable law.
8.5
Assignment.
This Agreement shall not be assignable, in whole or in part, by either
party without the written consent of the other party.
8.6
Injunctive
Relief. Each party agrees that it would be difficult to compensate the
non-breaching party fully for damages for any violation of any provision set
forth in Section 4 or Section 6 hereof. Accordingly, each party specifically
agrees that the other party shall be entitled to temporary and permanent
injunctive relief to enforce the provisions of Sections 4 and 6 of this
Agreement and that such relief may be granted without the necessity of proving
actual damages. This provision with respect to injunctive relief shall not,
however, diminish the right of the non-breaching party to claim and recover
damages in addition to injunctive relief.
8.7
Arbitration.
Any controversy or claim arising out of or relating to this Agreement or
the Executive’s employment by the Corporation shall, except for claims for
injunctive relief set out in paragraph 8.6 above, be settled by binding
arbitration, with a single neutral arbitrator, in accordance with the rules of
the American Arbitration Association relating to employment. In any action to
enforce this Agreement, the Executive and the Corporation each agree to accept
service of process by mail at its address, as applicable, as set forth in
Section 8.8 below (or at any different address of which the Executive has
notified the Corporation, or the Corporation has notified the Executive, as
applicable, in writing). In any action in which service is made pursuant to this
paragraph, the Executive and the Corporation each waive any challenge to the
personal jurisdiction of the American Arbitration Association. Any judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. In reaching his or her decision, the arbitrator shall have
no authority to change or modify any provision of this
Agreement.
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8.8
Notices.
All notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given and made if (1) delivered by hand, (2) otherwise delivered
against receipt therefor, or (3) sent by registered or certified mail, postage
prepaid, return receipt requested. Any notice shall be duly addressed to the
parties as follows:
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If
to the Corporation:
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00000
Xxxx xxx Xxxxxxx Xxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
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If
to the Executive:
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Xxxxxx
Xxxx
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10497
Town and Xxxxxxx Xxx, Xxxxx 000
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Xxxxxxx,
Xxxxx 00000
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Any party
may alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the foregoing provisions.
Any communication shall be effective when delivered by hand, when otherwise
delivered against receipt therefor, or five (5) business days after being mailed
in accordance with the foregoing.
8.9
Section
Headings. The section headings of, and titles of paragraphs and
subparagraphs contained in, this Agreement are for the purpose of convenience
only, and they neither form a part of this Agreement nor are they to be used in
the construction or interpretation thereof.
8.11
Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original as against any party whose signature appears
thereon, and all of which together shall constitute one and the same instrument.
This Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories. Photographic copies of such signed
counterparts may be used in lieu of the originals for any
purpose.
8.12
Entire
Agreement. This Agreement embodies the entire agreement of the parties
hereto respecting the matters within its scope. This Agreement supersedes all
prior and contemporaneous agreements of the parties hereto that directly or
indirectly bears upon the subject matter hereof. Any prior negotiations,
correspondence, agreements, proposals or understandings relating to the subject
matter hereof shall be deemed to have been merged into this Agreement, and to
the extent inconsistent herewith, such negotiations, correspondence, agreements,
proposals, or understandings shall be deemed to be of no force or effect. There
are no representations, warranties, or agreements, whether express or implied,
or oral or written, with respect to the subject matter hereof, except as
expressly set forth herein.
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IN
WITNESS WHEREOF, the Executive and the Corporation have executed this
Agreement as of the date set forth in the first paragraph.
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EXECUTIVE
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By: /s/ Xxxxx Millmaker______________
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By: /s/ Xxxxxx Mann____
_________
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Xxxxx
Xxxxxxxxx Xxxxxx
Xxxx
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Its:
Chief Executive Officer
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