EXHIBIT 10.188
SEVENTH AMENDMENT TO EMPLOYMENT AGREEMENT
THIS SEVENTH AMENDMENT to the Employment Agreement (the "Amendment") is
entered into as of September 30, 1999, by and between CATALINA LIGHTING, INC., a
Florida corporation (the "Company") and Xxxx Xxxxxxxxx (the "Employee").
RECITALS:
A. The Company and the Employee entered into an Employment Agreement,
dated October 1, 1989, which was subsequently amended by addendum dated May 7,
1990 and amendments dated August 27, 1990, April 8, 1991, June 20, 1992, October
1, 1993, October 1, 1994 and June 4, 1999, pursuant to which the Employee has
been employed as the Vice President of the Company (collectively, the
"Agreement").
B. The Company and the Employee wish to enter into this Seventh
Amendment in order to further amend the terms of the Agreement.
NOW, THEREFORE, each of the parties agrees as follows:
1. Section 3.2 of the Agreement is hereby amended by the addition of a new
subsection 3.2(c) at the end to read as follows:
"(c) Effective October 1, 1999, the Employee shall not be
entitled to a Bonus, as described in subsections 3.2(a) and (b) hereof,
until the Employee and the Company mutually agree upon a revised bonus
structure. Notwithstanding the foregoing, in the event of an
Acquisition of Control, as defined in subsection 5.1(b) hereof, prior
to March 31, 2000, the Employee shall be entitled to the Bonus, as
described in subsections 3.2(a) and (b) hereof, and this subsection
3.2(c) shall be null and void and shall have no force or effect."
2. Section 5.7 of the Agreement is deleted in its entirety and shall be replaced
by the following:
"5.7 CHANGE IN CONTROL.
(a) Notwithstanding the provisions of Sections 5.1 through
5.6, but subject to Section 5.9, hereof, in the event that (i) there is
an Acquisition of Control, and (ii) either (A) the Employee is employed
by the Company on the 180th day following the date on which the
Acquisition of
Control occurs, or (B) the Employee's employment with the Company is
terminated either by the Company without Cause or by the Employee for
Good Reason within 180 days after the date on which the Acquisition of
Control occurs (the events referred to in clauses (A) and (B) hereof
being referred to hereinafter as "Triggering Events"), then
(A) the Company shall pay to the Employee an amount
equal to three (3) times the sum of (x) the Employee's Salary
for the then current fiscal year of the Company, and (y) the
Bonus payable to the Employee for the fiscal year immediately
preceding the fiscal year in which the Triggering Event occurs
(the "Change in Control Payment");
(B) the Company shall continue to provide welfare
benefits and automobile allowances to the Employee and/or the
Employee's family at least equal to those which would have
been provided to them in accordance with the plans, programs,
practices and policies of the Company if the Employee's
employment had not been terminated, including health, dental,
disability insurance, life insurance, automobile lease and
related expense allowances, in accordance with the most
favorable plans, practices, programs or policies of the
Company during the 180-day period immediately preceding the
date on which the Triggering Event occurs, or, if more
favorable to the Employee, as in effect at any time thereafter
with respect to other key executives and their families, for a
period of three (3) years commencing as of the date on which
the Triggering Event occurs; and
(C) the provisions of subsection 6.1(b) hereof shall
be of no further force or effect.
The Change in Control Payment shall be made by the Company to
the Employee in a single lump sum payment immediately upon the
occurrence of a Triggering Event. Notwithstanding anything in this
Agreement to the contrary, if the Employee's employment with the
Company is terminated either by the Company without Cause or by the
Employee for Good Reason prior to the date on which an Acquisition of
Control occurs, and it is reasonably demonstrated that such termination
(x) was at the request of a third party who has taken steps reasonably
calculated to effect an Acquisition of Control, or (ii) otherwise arose
in connection with an Acquisition of Control, then the Acquisition of
Control shall be deemed to be a Triggering Event for the Employee and
the Employee shall be entitled to the benefits under this Section 5.7.
In addition to the foregoing, upon the termination of the
Employee's employment with the Company for any reason after the date on
which an Acquisition of Control occurs, the Company shall continue to
pay to the Employee the Employee's Compensation (as defined in
subsection 5.1(b) hereof) (subject to any applicable payroll and/or
other taxes required by law to be withheld) through the date of
termination of the Employee's employment.
(b) In addition, if the Employee's employment with the Company
terminates for any reason other than for Cause within one (1) year
following an Acquisition of Control, then the Employee shall have the
option, for thirty (30) days after the date of such termination of
employment, to enter into a three (3) year consulting and
non-competition agreement (the "Consulting Agreement") with the
Company, in the form attached as Exhibit A hereto, which shall take
effect as of the date it is executed and delivered to the Company."
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3. Section 5.9 of the Agreement is deleted in its entirety and shall be replaced
by the following:
"5.9 CERTAIN REDUCTION OF PAYMENTS BY THE COMPANY.
(a) 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 Employee, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or
otherwise (a "Payment"), would be nondeductible by the Company
for Federal income tax purposes because of Section 280G of the
Code, then the aggregate present value of amounts payable or
distributable to or for the benefit of the Employee pursuant
to this Agreement (such payments or distributions pursuant to
this Agreement are hereinafter referred to as "Agreement
Payments") shall be reduced to the Reduced Amount. The
"Reduced Amount" shall be an amount expressed in present value
which maximizes the aggregate present value of Agreement
Payments without causing any Payment to be nondeductible by
the Company because of Section 280G of the Code. For purposes
of this Section 5.9, present value shall be determined in
accordance with Section 280G(d)(4) of the Code. For purposes
of this Section 5.9, the terms "Payment" and "Agreement
Payments" shall not include any payments required to be made
to the Employee pursuant to the Consulting Agreement (as
defined in Section 5.7 hereof), and any payments pursuant to
the Consulting Agreement shall be disregarded in making any
determinations, and thus shall not be subject to any
reductions or cause any Payments to be reduced, pursuant to
this Section 5.9.
(b) All determinations required to be made under this
Section 5.9 shall be made by Deloitte & Touche LLP or, at the
Company's option, any other nationally recognized firm of
independent public accountants selected by the Employee and
approved by the Company, which approval shall not be
unreasonably withheld or delayed (the "Accounting Firm"),
which shall provide detailed supporting calculations both to
the Company and the Employee as of the date on which the
Acquisition of Control occurs or such other time as is
requested by the Company. Any such determination by the
Accounting Firm shall be binding upon the Company and the
Employee. The Employee shall determine which and how much of
the Payments shall be eliminated or reduced consistent with
the requirements of this Section 5.9, provided that, if the
Employee does not make such determination within ten business
days of the receipt of the calculations made by the Accounting
Firm, the Company shall elect which and how much of the
Payments shall be eliminated or reduced consistent with the
requirements of this Section 5.7 and shall notify the Employee
promptly of such election. All fees and expenses of the
Accounting Firm incurred in connection with the determinations
contemplated by this Section 5.9 shall be borne by the
Company."
4. In all other respects, the Agreement shall remain unchanged by this
Amendment.
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IN WITNESS WHEREOF, the Company and the Employee have caused this
instrument to be executed the day and year first above written.
CATALINA LIGHTING, INC., A FLORIDA CORPORATION
Dated: By: /s/ Xxxxxx Xxxxx
----------------------- -------------------------------------------
Xxxxxx Xxxxx, Chairman, President and Chief
Employee Officer
EMPLOYEE:
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XXXX XXXXXXXXX
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EXHIBIT A
CONSULTING AND NONCOMPETITION AGREEMENT
THIS CONSULTING AND NONCOMPETITION AGREEMENT (this "Agreement") is made
and entered into effective as of September 30, 1999, by and among CATALINA
LIGHTING, INC., a Florida corporation (the "Company") and XXXX XXXXXXXXX (the
"Consultant").
R E C I T A T I O N S
A. The Company recognizes that the Consultant possesses extensive
knowledge and experience regarding the businesses in which the Company is
engaged and all aspects of the Company's operations. The Company believes that
the Consultant's business advice will be extremely beneficial to the Company and
wishes to obtain such advice and the benefit of the Consultant's knowledge and
experience.
B. The Company desires to retain the services of the Consultant and the
Consultant desires to provide services to the Company, subject to the terms and
conditions set forth in this Agreement.
O P E R A T I V E P R O V I S I O N S
In consideration of the foregoing recitations, the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged hereby, the parties hereto, intending
legally to be bound, hereby covenant and agree as follows:
ARTICLE I
ENGAGEMENT OF SERVICES
1.1 ENGAGEMENT OF CONSULTANT. The Company hereby engages the Consultant
and the Consultant hereby agrees to provide consulting services as set forth in
Section 1.2 of this Agreement.
1.2 SERVICES TO BE PROVIDED.
(a) SERVICES. During the term of this Agreement, the Consultant
shall make himself available to consult with the Chief Executive Officer (the
"CEO"), upon reasonable notice from the Company, during the Company's normal
business hours. The Consultant shall report exclusively to the CEO and shall
perform such consulting services (consistent with the services the Consultant
previously provided to the Company while he was an employee) as shall be
requested by the CEO from time to time (collectively referred to herein as the
"Services")
(b) PERFORMANCE OF SERVICES. The Consultant is responsible for
reasonably determining the method, details and means of performing the Services
required under this Agreement. The Consultant shall maintain all permits,
licenses and authorizations necessary to Consultant's performance of Services
hereunder and shall at all times perform such Services and conduct Consultant's
business and affairs in accordance with all applicable federal, state and local
laws and regulations. Such consultation may be by telephone, in writing or by
other method of communication selected in the reasonable exercise of the
Consultant's discretion. Unless otherwise agreed to in writing by the
Consultant, the Consultant shall provide the Services required hereunder at
Miami, Florida or the location or locations which the Consultant and the Company
mutually agree.
(c) HOURS. During the Term of this Agreement, it is agreed that the
Consultant shall not be required to devote more than ten (10) hours (the "Agreed
Hours") in any calendar month in the performance of the Services set forth in
subsection 1.2(a) hereof.
1.3 TERM OF AGREEMENT. The term of this Agreement shall commence on the
date it is executed by the Consultant and delivered to the Company pursuant to
subsection 5.7(b) of the Employment Agreement (the "Commencement Date") and
shall continue for thirty-six (36) months after the Commencement Date (the
"Term").
1.4 NATURE OF CONSULTING RELATIONSHIP. It is agreed and understood by
the parties to this Agreement that, for all purposes, during the term of this
Agreement, the Consultant shall serve solely as an independent contractor of the
Company and shall not be an employee of the Company in any capacity. Nothing in
this Agreement shall be interpreted or construed as creating or establishing the
relationship of employer and employee between the Consultant and Company. As an
independent contractor, the Consultant shall accept any directions issued by the
Company pertaining to the goals to be attained and the results to be achieved by
him, but shall be solely responsible for the manner and hours in which he will
perform his services under this Agreement.
ARTICLE II
COMPENSATION
2.1 FEES. In consideration for the services to be provided by the
Consultant pursuant to Section 1.2 hereof, as well as the Consultant's agreement
to abide by the restrictive covenant provisions contained in Article IV of this
Agreement, the Company shall pay a fee to the Consultant equal to Seven Hundred
Fifty Thousand Dollars ($750,000) (the "Compensation") for the Term of this
Agreement, payable in thirty-six (36) equal consecutive monthly installments of
Twenty Thousand Eight Hundred Thirty Three Dollars and 33 Cents ($20,833.33) per
month, commencing on the Commencement Date.
2.2 EXPENSE REIMBURSEMENT. During the Term of this Agreement, the
Company shall reimburse the Consultant for all reasonable business expenses
actually paid or incurred by the Consultant in the course of and pursuant to the
business of the Company, upon proper submission of supporting documentation by
the Consultant and in accordance with such policies and
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guidelines as from time to time may be established by the Company.
ARTICLE III
DEATH & DISABILITY
3.1 DEATH OR DISABILITY. Notwithstanding anything to the contrary
contained in this Agreement, in the event of the Consultant's death or
Disability during the Term of this Agreement, the Consultant, his beneficiary,
his estate or personal representative shall continue to receive the Compensation
provided for in Section 2.1 hereof, at such times and in such amounts as if the
Consultant had not died or suffered a Disability; provided that during the term
of any such Disability the Consultant continues to abide by the restrictive
covenant provisions in Article IV of this Agreement. For purposes of this
Agreement, "Disability" shall mean if the Consultant shall as a result of mental
or physical incapacity, illness or disability, become unable to perform his
obligations hereunder for a period of 180 days in any 12-month period.
ARTICLE IV
RESTRICTIVE COVENANTS
4.1 NONSOLICITATION. At all times during the Term of this Agreement,
the Consultant shall not, directly or indirectly, for himself or for any other
person, firm, corporation, partnership, association or other entity which
competes in any manner with the Company or any of its subsidiaries or affiliates
in the United States of America or its territories or possessions or any other
country in which the Company conducts its business on the Commencement Date or
within one year prior to the Commencement Date (collectively, the "Territory"),
attempt to employ, employ or enter into any contractual arrangement for
employment with any employee or former employee of the Company or any of its
subsidiaries or affiliates, unless such employee or former employee has not been
employed by the Company for a period of at least two (2) years.
4.2 NON-COMPETITION. At all times during the Term of this Agreement,
the Consultant shall not, directly or indirectly, (a) acquire or own in any
manner any interest in, or loan any amount to, any person, firm, partnership,
corporation, association or other entity which engages in a Competing Business
in the Territory; (b) be employed by or serve as an employee, agent, officer,
director of, or as a consultant or independent contractor to any person, firm,
partnership, corporation, association or other entity, other than the Company
and its subsidiaries and affiliates, which engages in a Competing Business in
the Territory, or (c) engage in a Competing Business in the Territory. For
purposes of this Section 4.2, the term "Competing Business" shall mean the
manufacture and/or sale of lighting products for use in the residential,
commercial, manufactured home and home building markets. The foregoing
provisions of this Section 4.2 shall not prevent the Consultant from acquiring
or owning not more than five percent (5%) of the equity securities of any entity
whose securities are listed for trading on a national securities exchange or are
regularly traded in the over-the-counter securities market. The Consultant
agrees that the restrictions imposed upon him by the provisions of this section
are fair and reasonable considering
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the nature of the Company's business, and are reasonably required for the
protection of the Company. The Consultant further agrees that the provisions of
this section relating to areas of restriction, business limitations, or time
periods of restriction were specifically discussed in good faith and are
acceptable to the Consultant.
4.3 NONDISCLOSURE. The Consultant shall not at any time disclose,
directly or indirectly, to any person, firm, corporation, partnership,
association or other entity, any confidential information relating to the
Company or any of its subsidiaries or affiliates, or any information concerning
the financial condition, assets, personnel, procedures, techniques, customers,
sources of leads and methods of obtaining new businesses or the methods
generally of doing and operating the respective businesses of the Company and
its subsidiaries and affiliates, except to the extent that such information is a
matter of public knowledge or is required to be disclosed by law or judicial or
administrative process.
4.4 REFORMATION BY COURT. In the event that a court of competent
jurisdiction shall determine that any provision of this Article IV is invalid or
more restrictive than permitted under the governing law of such jurisdiction,
then only as to enforcement of this Article IV within the jurisdiction of such
court, such provision shall be interpreted and enforced as if it provided for
the maximum restriction permitted under such governing law. If any part of this
Article IV is held to be invalid or unenforceable, the remaining parts shall
nevertheless continue to be valid and enforceable as though the unenforceable
provisions were absent.
4.5 SURVIVAL. The provisions of this Article IV shall survive the
termination of this Agreement, as applicable.
4.6 INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Consultant of any of the covenants contained in
Article IV of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Consultant recognizes and hereby acknowledges that the Company
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in Article IV of this Agreement by the Consultant or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.
4.7 REASONABLENESS AND FAIRNESS OF RESTRICTIONS. In addition to Section
4.2 above, the Consultant acknowledges and agrees that the terms, conditions,
covenants, restrictions and other provisions of this Article IV are fair and
reasonable considering the nature of the Company's business, and are reasonably
required for the protection of the Company. The Consultant further acknowledges
and agrees that the terms, conditions, covenants, restrictions and other
provisions of this Article IV relating to areas of restriction, business
limitations, and/or time periods of restriction were specifically discussed in
good faith and are acceptable to the Consultant. Finally, the Consultant
acknowledges and agrees that he had the opportunity to seek advice, and has
sought advice as he deemed appropriate, from his personal advisors and counsel
regarding the fairness, reasonableness and effect of the terms, conditions,
covenants, restrictions
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and other provisions of this Agreement prior to the execution of this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
discussions, both written and oral, among the parties hereto. This Agreement may
not be amended or modified in any way except by a written instrument executed by
the Company and the Consultant.
5.2 NOTICE. All notices under this Agreement shall be in writing and
shall be given by personal delivery, or by registered or certified United States
mail, postage prepaid, return receipt requested, to the address set forth below:
If to the Consultant: Xxxx Xxxxxxxxx
00000 Xxxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
with copy to: Xxxxxxxxx Xxxxxxx P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
If to the Company: CATALINA LIGHTING, INC.
00000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Corporate Secretary
or to such other person or persons or to such other address or addresses as the
Consultant and the Company or their respective successors or assigns may
hereafter furnish to the other by notice similarly given. Notices, if personally
delivered, shall be deemed to have been received on the date of delivery, and if
given by registered or certified mail, shall be deemed to have been received on
the fifth business day after mailing.
5.3 GOVERNING LAW. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of Florida, without
giving effect to the conflict of laws principles of each State. With respect to
any disputes concerning federal law, such disputes shall be determined in
accordance with the law as it would be interpreted and applied by the United
States Court of Appeals for the Eleventh Circuit. The parties hereby
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irrevocably waive their right to a jury trial.
5.4 ASSIGNMENT: SUCCESSORS AND ASSIGNS. Neither the Consultant nor the
Company may make an assignment of this Agreement or any interest herein, by
operation of laws or otherwise, without the prior written consent of the other
party; provided that the Company shall assign its rights and obligations under
this Agreement to any corporation, partnership, organization or other entity in
the event that the Company shall effect a reorganization, consolidate with or
merge into such other corporation, partnership, organization or other entity, or
transfer all or substantially all of its properties or assets to such other
corporation, partnership, organization or other entity. This Agreement shall
inure to the benefit of and be binding upon the Company and the Consultant,
their respective heirs, personal representatives, executors, legal
representatives, successors and assigns.
5.5 WAIVER. The waiver by any party hereto of the other party's prompt
and complete performance or breach or violation of any provision of this
Agreement shall not operate nor be construed as a waiver of any subsequent
breach or violation, and the waiver by any party hereto to exercise any right or
remedy which he or it may possess shall not operate nor be construed as the
waiver of such right or remedy by such party or as a bar to the exercise of such
right or remedy by such party upon the occurrence of any subsequent breach or
violation.
5.6 SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of this Agreement
or any part thereof, all of which are inserted conditionally on their being
valid in law, and, in the event that any one or more of the words, phrases,
sentences, clauses, sections or subsections contained in this Agreement shall be
declared invalid by a court of competent jurisdiction, then this Agreement shall
be construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, section or sections, or subsection or subsections
had not been inserted.
5.7 ATTORNEYS FEES. In the event that any litigation shall arise
between the Company and the Consultant based, in whole or in part, upon this
Agreement or any provisions contained herein, the prevailing party in any
litigation shall be entitled to recover from the non-prevailing party, and shall
be awarded by a court of competent jurisdiction, any and all reasonable fees and
disbursements of trial and appellate counsel paid, incurred or suffered by such
prevailing party as the result of, arising from, or in connection with, any such
litigation.
5.8 COMPLIANCE WITH LEGAL REQUIREMENTS. The Company shall not be
required, by reason of this Agreement, to provide workers' compensation,
disability insurance, Social Security or unemployment compensation coverage nor
any other statutory benefit to the Consultant. The Consultant shall comply at
his expense with all applicable provisions of workers' compensation laws,
unemployment compensation laws, federal Social Security law, the Fair Labor
Standards Act, federal, state and local income tax laws, and all other
applicable federal, state and local laws, regulations and codes relating to
terms and conditions of employment required to be fulfilled by employers or
independent contractors.
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5.9 GENDER AND NUMBER. Wherever the context shall so require, all words
herein in the male gender shall be deemed to include the female or neuter
gender, all singular words shall include the plural and all plural words shall
include the singular.
5.10 SECTION HEADINGS. The section or other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of any or all of the provisions of this Agreement.
5.11 NO THIRD PARTY BENEFICIARY OTHER THAN COMPANY. Nothing expressed
or implied in this Agreement is intended, or shall be construed, to confer upon
or give any person, firm, corporation, partnership, association or other entity,
other than the parties hereto and each of their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
5.12 NO AUTHORITY TO BIND COMPANY. The Consultant does not and shall
not have any authority to enter into any contract or agreement for, on behalf of
or in the name of the Company, or to legally bind the Company to any commitment
or obligation.
5.13 INDEMNIFICATION. To the maximum extent permitted by law, the
Company shall indemnify, hold harmless, protect and defend (with counsel
reasonably acceptable to Consultant) Consultant and all others who could be
liable for the obligations of any of them from and against any and all claims,
demands, actions, fines, penalties, liabilities, losses, damages, injuries and
expenses (including without limitation, actual attorneys', consultant's and
expert witness' fees and costs at the pre trial, trial and appellate levels and
in bankruptcy proceedings) related to, arising out of or resulting from the
performance by the Consultant of his obligations and duties hereunder in
accordance with the terms hereof, provided, however, that the Company does not
hereby agree, and shall not be obligated to, so indemnify the Consultant from
any such loss, cost, damage, liability or expense (i) arising out of any act or
omission of the Consultant or any of his agents, officers, employees,
independent contractors or representatives, which act or omission constitutes
gross negligence, willful misconduct or fraud or is in material breach of this
Agreement, and (ii) relating to any obligation of the Consultant to comply with
the provisions of Section 5.8 above including, but not limited to, the
Consultant's obligation to pay tax under any federal, state or local tax law.
Notwithstanding any other provisions of this Agreement to the contrary, the
Company's obligations under this Section 5.13 shall survive the expiration,
termination or cancellation of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
THE COMPANY:
CATALINA LIGHTING, INC., a Florida
corporation
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Xxxxxx Xxxxx, President
THE CONSULTANT:
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XXXX XXXXXXXXX
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