Exhibit 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made as of this 1st day
of March, 2000, by and between Xxxxxx.xxx, Inc., a Delaware corporation (the
"COMPANY"), and Xxxxxxxx X. XxXxxxxxx (the "EXECUTIVE").
RECITALS:
A. The Company is actively engaged in operating an e-commerce site
(Xxxxxx.xxx) which facilitates both the purchase and sending of liquor, wine,
and other alcoholic or non-alcholic beverage by businesses and individuals for
gift delivery and personal consumption.
B. The Company is currently expanding its business by further utilizing
its existing network of affiliates in the alcholic beverage industry to reduce
the cost and increase the efficiency at each tier of the alcholic beverage
distribution system.
C. The Company desires to employ Executive and the Executive desires to
be employed by the Company.
D. As a condition of the Company entering into this Agreement with the
Executive, Executive has agreed to execute and deliver the
Confidentiality/Invention and Non-Compete Agreement attached hereto as EXHIBIT A
(the "CONFIDENTIALITY AGREEMENT").
NOW, THEREFORE, in consideration of the foregoing and the agreements,
covenants and conditions set forth herein, the Executive and the Company hereby
agree as follows:
ARTICLE I
EMPLOYMENT
1.1 EMPLOYMENT. The Company hereby employs, engages and hires
Executive, and Executive hereby accepts employment, upon the terms and
conditions set forth in this Agreement. The Executive shall serve as an
Executive Vice President of Business Development. Executive shall have and fully
perform such duties and responsibilities that may be, from time to time,
assigned to him by the Company.
1.2 ACTIVITIES AND DUTIES DURING EMPLOYMENT. Executive represents and
warrants to the Company that he is free to accept employment with the Company,
and that he has no prior or other commitments or obligations of any kind to
anyone else which would hinder or interfere with his acceptance of his
obligations under this Agreement, or the exercise of his best efforts as an
officer and employee of the Company. During the Employment Term (as defined
below), Executive agrees:
(a) to devote substantially all of his business, time, attention
and efforts to the faithful and diligent performance of his services to
the Company;
(b) to faithfully serve and further the interests of the Company in
every lawful way, giving honest, diligent, loyal and cooperative
service to the Company; and
(c) to comply with all rules and policies which, from time to time,
may be adopted by the Company.
ARTICLE II
TERM
2.1 TERM. The term of employment under this Agreement shall be one (1)
year (the "INITIAL TERM"), commencing on the date of the Agreement (such term of
employment, as it may be extended or terminated, is herein referred to as the
"EMPLOYMENT TERM"), which Employment Term shall automatically renew for one year
periods unless terminated by either party by written notice not less than sixty
(60) days prior to expiration of the then-current term.
2.2 TERMINATION. The employment of Executive may be terminated as
follows:
(a) By the Company at any time without cause by providing Executive
with written notice of termination. If the Company terminates
Executive's employment hereunder without cause, the Company shall be
obligated to pay Executive's pro-rated base salary only through the
actual effective date of termination. In addition, if Executive
executes a separation agreement including a general release and a
reaffirmation of certain covenants in the Confidentiality Agreement in
a form acceptable to the Company, the Company shall pay to Executive,
in one lump sum, an amount equal to six (6) months of Executive's base
salary.
(b) By the Company immediately for "CAUSE." For the purpose of this
Agreement, "CAUSE" shall mean (i) conduct amounting to fraud,
embezzlement, gross negligence, or willful or illegal misconduct in
connection with Executive's duties under this Agreement; (ii) any act
of dishonesty in connection with the Executive's duties under this
Agreement; (iii) the indictment or conviction of Executive by a court
of proper jurisdiction of (or his written, voluntary and freely given
confession to) a crime which constitutes a felony and/or results in
injury to the Company's property, operation or reputation; (iv) any
failure by the Executive to perform or observe any duty assigned to
Executive hereunder or the breach of any term under this Agreement,
which default has continued for a period of five (5) business days
after written notice thereof from the Company to the Executive,
provided that no notice or cure period shall be required after the
first such offense by Executive; or (v) breach of any term of the
Confidentiality Agreement, except for an unintentional breach that
Executive cures within five (5) business days after written notice
thereof from the Company to the Executive. If the Company terminates
Executive's employment for Cause hereunder, Company shall be obligated
to pay Executive's pro-rated base salary only through the actual
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effective date of termination and shall have no other payment
obligation or liability to Executive under this Agreement or otherwise.
(c) Upon the death of Executive, and in such event, the Company
shall be obligated to Executive's family or estate only for the
pro-rated salary and accrued bonus as of the date of Executive's death.
(d) By either party upon the Total Disability of the Executive. The
Executive shall be considered to have a Total Disability for purposes
of this Agreement if he is unable by reason of accident or illness to
substantially perform his employment duties, and is expected to be in
such condition for periods totaling three (3) months (whether or not
consecutive) during any consecutive period of twelve (12) months.
During a period of disability prior to termination hereunder, Executive
shall continue to receive his base salary. If either party terminates
Executive's employment upon a Total Disability of the Executive, the
Company shall be obligated to pay Executive's pro-rated base salary and
accrued bonus, if any, only through the actual effective date of
termination.
2.3 CESSATION OF RIGHTS AND OBLIGATIONS: SURVIVAL OF CERTAIN
PROVISIONS. On the date of expiration or earlier termination of the Employment
Term for any reason, all of the respective rights, duties, obligations and
covenants of the parties, as set forth herein, shall, except as specifically
provided herein to the contrary, cease and become of no further force or effect
as of the date of said termination, and shall only survive as expressly provided
for herein.
2.4 CESSATION OF COMPENSATION. Upon any termination of the Employment
Term, Executive shall be entitled to receive the compensation set forth above in
SECTION 2.2 and expense reimbursement through the date of termination; PROVIDED,
HOWEVER, that any compensation or expense reimbursement payable to Executive
shall be subject to any set-offs to which the Company may be entitled. Unless
specifically required to be paid by law, other compensation and benefits,
including accrued vacation time, will not be paid or provided after termination
for any reason.
ARTICLE III
COMPENSATION OF BENEFITS
3.1 COMPENSATION.
(a) During the Employment Term, the Company shall pay Executive a
base salary ("BASE SALARY") of One Hundred Fifty Thousand Dollars
($150,000) per year. The Base Salary will be reviewed annually by the
Board of Directors with a view to increasing it.
(b) The Company shall, in addition to Executive's Base Salary,
pay Executive an annual performance bonus (the "PERFORMANCE BONUS")
based on the Company obtaining certain targeted financial goals, as
established by the Board of Directors of the Company.
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3.2 PAYMENT. All compensation shall be payable in intervals in
accordance with the general payroll payment practice of the Company. The
compensation shall be subject to such withholdings and deductions by the Company
as are required by law.
3.3 OPTIONS. The Company shall grant to the Executive incentive stock
options to purchase 50,000 shares of the Company's common stock at an exercise
price equal to $3.52 per share and such other terms and conditions set forth in
the Company's 2000 Stock Plan and the option agreement issued thereunder. The
option shares shall vest as follows: 20,000 shares upon issuance and 2,000
shares each month thereafter until fully vested.
3.4 BUSINESS EXPENSES.
(a) REIMBURSEMENT. The Company shall reimburse the Executive for
all reasonable, ordinary, and necessary business expenses incurred by
him in connection with the performance of his duties hereunder,
including, but not limited to, ordinary and necessary travel expenses
and entertainment expenses.
(b) ACCOUNTING. The Executive shall provide the Company with an
accounting of his expenses, which accounting shall clearly reflect
which expenses are reimbursable by the Company. The Executive shall
provide the Company with such other supporting documentation and other
substantiation of reimbursable expenses as will conform to Internal
Revenue Service or other requirements. All such reimbursements shall be
payable by the Company to the Executive within a reasonable time after
receipt by the Company of appropriate documentation therefor.
3.5 OTHER BENEFITS. Executive shall be entitled to participate in any
retirement, pension, profit-sharing, stock option, health plan, incentive
compensation and welfare or any other benefit plan or plans of the Company which
may now or hereafter be in effect for executive officers of the Company. The
Executive shall be entitled to two weeks paid vacation.
ARTICLE IV
MISCELLANEOUS
4.1 NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given, delivered and received
(a) when delivered, if delivered personally, (b) four days after mailing, when
sent by registered or certified mail, return receipt requested and postage
prepaid, (c) one business day after delivery to a private courier service, when
delivered to a private courier service providing documented overnight service,
and (d) on the date of delivery if delivered by telecopy, receipt confirmed,
provided that a confirmation copy is sent on the next business day by first
class mail, postage prepaid, in each case addressed as follows:
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To Executive at his home address.
To Company at: Xxxxxx.xxx, Inc.
0000 X. Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
Ph: 000-000-0000
Fax: 000-000-0000
With a copy to: Xxxxxxx & Xxxxxxxx Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Any party may change its address for purposes of this paragraph by giving the
other party written notice of the new address in the manner set forth above.
4.2 ENTIRE AGREEMENT; AMENDMENTS, ETC. This Agreement and the
Confidentiality Agreement, and the option plan and agreements referred to herein
contain the entire agreement and understanding of the parties hereto, and
supersedes all prior agreements and understandings relating to the subject
matter thereof. No modification, amendment, waiver or alteration of this
Agreement or any provision or term hereof shall in any event be effective unless
the same shall be in writing, executed by both parties hereto, and any waiver so
given shall be effective only in the specific instance and for the specific
purpose for which given.
4.3 BENEFIT. This Agreement shall be binding upon, and inure to the
benefit of, and shall be enforceable by, the heirs, successors, legal
representatives and permitted assignees of Executive and the successors,
assignees and transferees of the Company. This Agreement or any right or
interest hereunder may not be assigned by Executive without the prior written
consent of the Company.
4.4 NO WAIVER. No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder or pursuant hereto shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder or pursuant thereto.
4.5 SEVERABILITY. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law but, if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement. If any part of any
covenant or other provision in this Agreement is determined by a court of law to
be overly broad thereby making the covenant unenforceable, the parties hereto
agree, and it is their desire, that the court shall substitute
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a judicially enforceable limitation in its place, and that as so modified the
covenant shall be binding upon the parties as if originally set forth herein.
4.6 COMPLIANCE AND HEADINGS. Time is of the essence of this Agreement.
The headings in this Agreement are intended to be for convenience and reference
only, and shall not define or limit the scope, extent or intent or otherwise
affect the meaning of any portion hereof.
4.7 GOVERNING LAW. The parties agree that this Agreement shall be
governed by, interpreted and construed in accordance with the laws of the State
of Illinois, and the parties agree that any suit, action or proceeding with
respect to this Agreement shall be brought in the courts of Xxxx County in the
State of Illinois or in the U.S. District Court for the Northern District of
Illinois. The parties hereto hereby accept the exclusive jurisdiction of those
courts for the purpose of any such suit, action or proceeding. Venue for any
such action, in addition to any other venue permitted by statute, will be Xxxx
County, Illinois.
4.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
4.9 RECITALS. The Recitals set forth above are hereby incorporated in
and made a part of this Agreement by this reference.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered as of the day and year first above
written.
XXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxxxx X. XxXxxxxxx
----------------------------------------
Xxxxxxxx X. XxXxxxxxx
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EXHIBIT A
EMPLOYEE CONFIDENTIALITY/INVENTION
AND NON-COMPETE AGREEMENT
EMPLOYEE CONFIDENTIALITY/INVENTION AND NON-COMPETE AGREEMENT
(this "AGREEMENT") is made and entered into as of March 1, 2000, by and between
Xxxxxx.xxx, Inc., a Delaware corporation, (the "COMPANY"), and Xxxxxxxx X.
XxXxxxxxx ("EMPLOYEE").
R E C I T A L S:
A. The Company has offered Employee to become an employee-at-will of
the Company upon the terms set forth in Employee's Employment Agreement dated as
of March 1, 2000 (the "EMPLOYMENT AGREEMENT").
B. The Employee desires to accept the Company's offer of employment.
C. As a condition to the Company entering into the Employment Agreement
and the Employee's commencement of his employment with the Company, and in
consideration for such employment, the Employee has agreed to become bound by
the following covenants that are intended to protect the goodwill and assets of
the Company.
NOW, THEREFORE, in consideration of the foregoing and the agreements,
covenants and conditions set forth herein, the Company and Employee hereby agree
as follows:
1. AT WILL EMPLOYMENT. The Employee acknowledges that his employment
with the Company is for an unspecified duration and constitutes "at-will"
employment. The Employee acknowledges that his employment relationship may be
terminated at any time, with or without cause, at the option of either the
Company or the Employee, all as further provided for in the Employment
Agreement.
2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Employee hereby
acknowledges and agrees that the duties and services to be performed by Employee
for the Company are special and unique and that as of a result of his employment
by the Company, Employee will acquire, develop, learn, and use information of a
special and unique nature and value that is not generally known to the public or
to the Company's industry, including but not limited to, certain records,
secrets, documentation, manner of operation, software programs, price lists,
ledgers and general information, employee records, mailing lists, customer
lists, customer profiles, prospective customer lists, information regarding its
customers or principles, accounts receivable and payable ledgers, financial and
other records of the Company or its affiliates, and other similar matters (all
such information being hereinafter referred to as "CONFIDENTIAL INFORMATION").
Employee further acknowledges and agrees that the Confidential Information is of
great value to the Company and its affiliates and that the restrictions and
agreements contained in this Agreement are reasonably necessary to protect the
Confidential Information and the goodwill of the Company. Accordingly, Employee
hereby agrees that:
(a) Employee will hold in strictest confidence and will not,
during the period he is employed by the Company or at any time
thereafter, directly or indirectly, except in connection with
Employee's performance of his duties as an employee, or as otherwise
authorized by the Company for the benefit of the Company, divulge to
any person, firm, corporation, limited liability company, or
organization, other than the Company (hereinafter referred to as "THIRD
PARTIES"), or use or cause or authorize any Third Parties to use, the
Confidential Information, except as required by law; and
(b) Upon the termination of his employment term for any reason
whatsoever, Employee shall deliver or cause to be delivered to the
Company any and all Confidential Information, including drawings,
notebooks, keys, data and other documents and materials belonging to
the Company or its affiliates which is in his possession or under his
control relating to the Company or its affiliates, or the Business of
the Company (as defined herein), regardless of the medium upon which it
is stored, and will deliver to the Company upon such termination of
employment any other property of the Company or its affiliates which is
in his possession or under his control.
3. INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. Attached hereto, as Exhibit
A, is a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by
Employee prior to his employment with the Company (collectively
referred to as "Prior Inventions"), which belong to Employee, which
relate to the Company's business, products or research and development,
and which are not assigned to the Company hereunder; or, if no such
list is attached, the Employee represents that there are no such Prior
Inventions. If in the course of employment with the Company, the
Employee incorporates into a Company product, process or machine a
Prior Invention, the Company is hereby granted and shall have a
nonexclusive, royalty free, irrevocable, perpetual, worldwide license
to make, have made, modify, use and sell such Prior Invention as part
of or in connection with such product, process or machine.
(b) ASSIGNMENT OF INVENTIONS. Employee agrees that he will
promptly make full written disclosure to the Company, will hold in
trust for the sole right and benefit of the Company, and hereby assigns
to the Company, or its designee, all his right, title and interest in
and to any and all inventions, original works of authorship,
developments, concepts, improvements or trade secrets, whether or not
patentable or registrable under copyright or similar laws, which
Employee may solely or jointly conceive or develop or reduce to
practice, or cause to be conceived or developed or reduced to practice,
during his employment with the Company (collectively referred to as
"Inventions"). Employee further acknowledges that all original works or
authorship which are made by him (solely or jointly with others) within
the scope of and during the period of his employment with the Company
and which are protectable by copyright are "works made for hire," as
that term is defined in the United States Copyright Act.
Notwithstanding anything to the contrary contained herein,
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to the extent Employee develops an Invention or process in his spare
time, while off the Company premises, in an area not related to the
Company's lines of business ("Retained Inventions") then the Company
shall have no rights in such Retained Inventions.
(c) MAINTENANCE OF RECORDS. Employee agrees to keep and maintain
adequate and current written records of all Inventions made by Employee
(solely or jointly with others) during the term of his employment with
the Company. The records will be in the form of notes, sketches,
drawings, and any other format that may be specified by the Company.
The records will be available to and remain the sole property of the
Company at all times, with the exception of Retained Inventions.
(d) PATENT AND COPYRIGHT REGISTRATIONS. Employee agrees to assist
the Company, or its designee, at the Company's expense, in every proper
way to secure the Company's rights in the Inventions and any
copyrights, patents, mask work rights or other intellectual property
rights relating thereto in any and all countries, including the
disclosure to the Company of all pertinent information and data with
respect thereto, the execution of all applications, specifications,
oaths, assignments and all other instruments which the Company shall
deem necessary in order to apply for and obtain such rights and in
order to assign and convey to the Company, its successors, assigns and
nominees the sole and exclusive rights, title and interest in and to
such Inventions, and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto. Employee further agrees
that his obligation to execute or cause to be executed, when it is in
his power to do so, any such instrument or papers shall continue after
the termination of this Agreement. If the Company is unable because of
Employee's mental or physical incapacity or for any other reason to
secure Employee's signature to apply for or pursue any application for
any United States or foreign patents or copyright registrations
covering Inventions or original works of authorship assigned to the
Company as above, then Employee hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as his
agent and attorney in fact, to act for and in his behalf and stead to
execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon with the same legal force and
effect as if executed by Employee. The foregoing shall not apply to
Retained Inventions.
4. NON-COMPETITION COVENANT. Employee acknowledges that the covenants
set forth in this SECTION 4 are reasonable in scope and essential to the
preservation of the Business of the Company. Employee also acknowledges that the
enforcement of the covenants set forth in this SECTION 4 will not preclude
Employee from being gainfully employed in such manner and to the extent as to
provide a standard of living for himself, the members of his family and the
others dependent upon his of at least the level to which he and they have become
accustomed and may expect. In addition, Employee acknowledges that the Company
has obtained an advantage over its competitors as a result of its name, location
and reputation that is characterized by near permanent relationships with
principals, suppliers and other contacts which it has developed at great
expense. Furthermore, Employee acknowledges that competition by him following
the termination of his
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employment would impair the operation of the Company beyond that which would
arise from the competition of an unrelated third party with similar skills.
Employee shall not, during the period he is employed by the Company and for one
year from the date of termination of his employment (the "RESTRICTED PERIOD"),
directly or indirectly, engage in or become directly or indirectly interested in
any proprietorship, partnership, firm, trust, company, limited liability company
or other entity (whether as owner, partner, lessor, licensor, trustee,
beneficiary, stockholder, member, or otherwise) that competes with the Company
or its affiliates, in the Business of the Company (as defined herein) in the
Restricted Territory (as defined herein); PROVIDED, HOWEVER, that nothing set
forth in this SECTION 4 shall prohibit Employee from owning not in excess of 5%
in the aggregate of any class of capital stock of any corporation if such stock
is publicly traded and listed on any national or regional stock exchange or
reported on the National Association of Securities Dealers Automated Quotations.
For purposes of this Agreement, (i) the term "BUSINESS OF THE COMPANY" shall
mean being engaged in operating an e-commerce site that offers (1) gift delivery
and promotional services; and (2) services to producers, distributors,
wholesalers, retailers, taverns, nightclubs, restaurants and others who
purchase, manufacture, sell and distribute products involving liquor, wine,
spirits or any other alcholic beverage, and such other products as the Company
may handle at the time of Employee's termination; and (ii) the term "RESTRICTED
TERRITORY" means any state in the United States of America. The Employee
specifically acknowledges that the Business of the Company is not naturally
restricted by any geographic boundaries.
5. NON-SOLICITATION COVENANT. Employee hereby covenants and agrees
that during the Restricted Period, he shall not directly or indirectly induce,
attempt to induce or hire any employee (or any person who was an employee during
the year preceding the date of any solicitation) of the Company or its
affiliates to leave the employment of the Company or its affiliates, or in any
way interfere with the relationship between any such employee of the Company or
its affiliates. Employee hereby further covenants and agrees that during the
Restricted Period he shall not directly or indirectly, solicit, interfere with,
or endeavor to entice away from the Company, any person, firm, corporation,
limited liability company or other entity that is a manufacturer, retailer,
wholesaler, distributor, or other person who is a part of the Company's network
of business who use the Company's services.
6. REMEDIES.
(a) INJUNCTIVE RELIEF. Employee expressly acknowledges and agrees
that the Business of the Company is highly competitive and that a
violation of any of the provisions of SECTIONS 2, 3, 4 AND 5 would
cause immediate and irreparable harm, loss and damage to the Company
not adequately compensable by a monetary award. Employee further
acknowl edges and agrees that the time periods and territorial areas
provided for herein are the minimum necessary to adequately protect the
Confidential Information/Inventions and Business of the Company.
Without limiting any of the other remedies available to the Company, at
law or in equity, or the Company's right or ability to collect money
damages, Employee agrees that any actual or threatened violation of any
of the provisions of SECTIONS 2, 3, 4 AND 5 may be restrained or
enjoined by any court of competent jurisdiction, and that
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a temporary restraining order or emergency, preliminary or final
injunction may be issued in any court of competent jurisdiction,
without notice and without bond.
(b) ENFORCEMENT. It is the desire of the parties that the
provisions of SECTIONS 2, 3, 4 AND 5 be enforced to the fullest extent
permissible under the laws and public policies in each jurisdiction in
which enforcement might be sought. Accordingly, if any particular
portion of SECTIONS 2, 3, 4 AND 5 shall ever be adjudicated as invalid
or unenforceable, or if the application thereof to any party or
circumstance shall be adjudicated to be prohibited by or invalidated by
such laws or public policies, such section or sections shall be (i)
deemed amended to delete therefrom such portions so adjudicated or (ii)
modified as determined appropriate by such a court, such deletions or
modifications to apply only with respect to the operation of such
section or sections in the particular jurisdictions so adjudicating on
the parties and under the circumstances as to which so adjudicated.
(c) LEGAL FEES. Employee shall reimburse the Company for all
reasonable costs and expenses, including but not limited to, attorney
fees, incurred by the Company in connection with the enforcement of the
provisions set forth in this Agreement if the Company prevails.
7. ASSIGNMENT AND SUCCESSION. The rights and obligations of the
parties under this Agreement shall inure to the benefit of and be binding upon
their successors and assigns.
8. APPLICABLE LAW. The parties agree that this Agreement shall be
governed by, interpreted and construed in accordance with the laws of the State
of Illinois.
9. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the agreements
referred to herein or therein contain the entire understanding of the parties
hereto with regard to the subject matter contained herein, and supersedes all
prior agreements, understandings or intents between the parties hereto. This
Agreement may be amended, modified or supplemented only pursuant to SECTION 6(a)
or by a writing signed by the parties hereto.
10. WAIVERS. Any term of this Agreement may be waived by the party or
parties entitled to the benefits thereof but only by a writing executed by such
party. No waiver or any breach of this Agreement shall be held to constitute a
waiver of any other or subsequent breach.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be considered an original instrument, but all
of which shall be considered one and the same agreement, and shall become
binding when one or more counterparts have been signed and delivered by each of
the parties hereto.
12. RECITALS: The Recitals set forth above are hereby incorporated in
and made a part hereof by this reference.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
XXXXXX.XXX, INC.
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx
Chief Executive Officer
/s/ Xxxxxxxx X. XxXxxxxxx
------------------------------------
Xxxxxxxx X. XxXxxxxxx
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