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Exhibit 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), entered into as of the 11th
day of February, 1999, is by and between Xxxxxxxx.xxx Incorporated, a New York
corporation (the "Company") and Xxxxxxx X. Xxxxxx ("Xxxxxx").
WITNESSETH:
WHEREAS, the Company is engaged primarily in the business of hosting and
administering proprietary on-line enterprise learning solutions and related
services; and
WHEREAS, Xxxxxx is currently employed by the Company as Chairman of the
Board and General Counsel; and
WHEREAS, the Company desires that Xxxxxx continue in the employment of the
Company and Xxxxxx desires to continue to be employed by the Company.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties do hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the meanings set forth below:
"BASE SALARY" means the aggregate annual amount paid by the Company for
base salary as provided in Section 3(a) hereof.
"BOARD" means the Board of Directors of the Company.
"CAUSE" means, as determined in good faith by two-thirds of the Board, (1)
Xxxxxx'x material and irreparable breach of this Agreement, (2) Xxxxxx'x gross
negligence in the performance of any of his material duties and responsibilities
hereunder; (3) Xxxxxx'x willful dishonesty or fraud with respect to the business
or affairs of the Company; (4) Xxxxxx'x conviction of a felony crime; or (5)
chronic alcohol abuse or illegal drug abuse by Xxxxxx.
"CHANGE IN CONTROL" means (i) a consolidation or merger of the Company with
or into any other corporation, or any other entity or person, other than a
wholly-owned subsidiary of the Company, excluding any transaction in which the
stockholders of the Company immediately prior to the transaction will maintain
voting control or own at least 50% (in each case, in substantially the same
proportion as before such event) of the resulting entity after the transaction;
(ii) any corporate reorganization, including an exchange offer, in which the
Company shall not be the continuing or surviving entity resulting from such
reorganization, excluding any transaction in which the stockholders of the
Company immediately prior to the transaction will maintain voting control or own
at least 50% (in each case, in substantially the
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same proportion as before such event) of the resulting entity after the
transaction; or (iii) the sale of a substantial portion of the Company's assets,
which shall be deemed to occur on the date that any one person, or more than one
person acting as a group, acquires (or has acquired during the 12 month period
ending on the date of the most recent acquisition by such person or persons)
assets from the Company that have a total fair market value equal to more than
75% of the total fair market value of all the assets of the Company.
"COMMON SHARES" means shares of the Company's common stock, $.001 par
value.
"COMPLETE DISABILITY" means Xxxxxx'x qualification for benefits under the
long-term disability insurance policy described in Section 3(f) hereof.
"DESIGNATED BENEFICIARY" means the person(s) designated by Xxxxxx to the
Board to be his beneficiary under this Agreement in the event of his death. If
no beneficiary has been designated, or the designated beneficiary has
predeceased Xxxxxx, the Designated Beneficiary shall be Xxxxxx'x estate.
'EMPLOYMENT DATE" means February 11, 1999.
"GOOD REASON" means (i) a material and adverse change in Xxxxxx'x title,
status, authority, duties, function or benefits; (ii) any reduction in Xxxxxx'x
Base Salary or the failure to pay Xxxxxx'x Base Salary for a period of more than
90 days; (iii) the relocation of Xxxxxx'x principal place of employment to a
location outside of the State of Rhode Island; or (iv) a material breach by the
Company of its obligations hereunder.
"INITIAL TERM" means the three (3) year period beginning on the Employment
Date and ending on the third anniversary thereof.
"SEVERANCE" means (i) Base Salary at the rate in effect at the time of the
event triggering the Company's obligation to pay Severance, (ii) the
acceleration of vesting of all options held by Xxxxxx to purchase Company stock,
and the extension of the exercise period of all such options until the second
anniversary of the date of termination; and (iii) for as long as Xxxxxx shall be
living during the period for which he is entitled to Severance, the continuation
of the benefits described in Sections 3(d)-(g) hereof. In the event that Xxxxxx
is not eligible for continued participation in the health insurance plan in
which Xxxxxx was participating at the time of termination, the Company shall pay
the full cost of comparable coverage (determined without regard to cost).
"SUBSEQUENT TERM" means the three (3) year period beginning immediately
following the expiration of the Initial Term and ending on the third anniversary
thereof.
"TERRITORY" means the United States of America.
"TRADE SECRET, PROPRIETARY OR CONFIDENTIAL INFORMATION" means any and all
confidential, trade secret and/or proprietary information of the Company or its
clients, including
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without limitation financial information, projected budgets, marketing
strategies, past performances, client lists, pricing policies, operational
methods, marketing plans or strategies, product development techniques or plans,
flowcharts, software programs, data, systems, techniques, business acquisition
plans, inventions and research projects and other business affairs or any other
documents or materials, whether or not reduced to tangible form, pertaining to
the business of Company.
2. EMPLOYMENT AND DUTIES.
(a) Effective as of the Employment Date, the Company hereby agrees to
employ Xxxxxx as General Counsel of the Company. As such, Xxxxxx shall have the
responsibilities, duties and authority reasonably accorded to and expected of
such position. Xxxxxx will report directly to the Board and carry out its
directives to him. Xxxxxx shall also serve as Chairman of the Board, and shall
serve as a member of Executive Committee of the Board and/or any other committee
of the Board as the Board may request.
(b) Xxxxxx hereby agrees to accept the employment, directorship,
responsibilities and duties described in subparagraph (a) above as of the
Employment Date upon the terms and conditions herein contained. Xxxxxx agrees to
devote substantially all of his business and productive time, skill, attention
and efforts to promote and further the business of the Company. In all aspects
of his employment and directorship, Xxxxxx shall faithfully adhere to, execute
and fulfill all directives, policies and standards established by the Company.
(c) Xxxxxx shall not, during the term of Xxxxxx'x employment hereunder, be
engaged in any other business activity pursued for gain, profit or other
pecuniary advantage if such activity substantially interferes with Xxxxxx'x
duties and responsibilities hereunder. The foregoing limitations shall not be
construed as prohibiting Xxxxxx from making personal investments in such form or
manner as will neither require Xxxxxx'x services in the operation or affairs of
the companies or enterprises in which such investments are made nor violate the
terms of Section 4 hereof.
3. COMPENSATION. For all services rendered by Xxxxxx, the Company shall
compensate Xxxxxx as follows:
(a) BASE SALARY. Effective as of the Employment Date, Base Salary payable
to Xxxxxx shall be $175,000. Provided that the Company shall have raised in
excess of $7,000,000 of new equity capital after the Employment Date and prior
to January 1, 2000, effective as of January 1, 2000, Base Salary shall be
increased to $200,000, and effective as of January 1, 2001, Base Salary shall be
increased to $225,000. Subsequent increases in Base Salary shall be determined
by the Board. Base Salary shall be paid in accordance with the Company's
standard payroll procedures.
(b) BONUS AND/OR PERFORMANCE COMPENSATION. Bonus and/or other performance
compensation may be payable to Xxxxxx at the discretion of the Board.
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(c) STOCK OPTIONS. Effective as of the Employment Date, the Company agrees
to award Xxxxxx an option to purchase 400,000 Common Shares at an exercise price
equal to $4.00 per share. Twenty-five percent (25%) of such option (i.e. 100,000
Common Shares) (hereinafter referred to as the "Class A portion") shall become
vested in 13 equal installments on the first day of each calendar quarter
beginning April 1, 1999, except that the last installment shall vest on the
third anniversary of the Employment Date. Notwithstanding the foregoing, the
Class A portion shall become immediately exercisable in full if the closing bid
of the Common Shares equals or exceeds $15.00 for five consecutive trading days.
The remaining seventy-five percent (75%) of such option (i.e. 300,000 Common
Shares) (hereinafter referred to as the "Class B portion") shall become
exercisable on the third anniversary of the Employment Date; provided, however,
if prior to the third anniversary of the Employment Date, but after June 7,
1999, (i) the closing bid of the Common Shares equals or exceeds $10.00 per
share for five consecutive trading days, then one third (1/3) of such Class B
portion shall become immediately exercisable, (ii) the closing bid of the Common
Shares equals or exceeds $12.50 per share for five consecutive trading days,
then two-thirds (2/3) of the Class B portion (cumulatively) shall be immediately
exercisable; and (iii) the closing bid of the Common Shares equals or exceeds
$15.00 per share for five consecutive trading days, then the Class B portion
shall be immediately exercisable in full. In addition, the option shall become
immediately exercisable in full upon (xi) the consummation of a Change in
Control, (xii) the occurrence of an event resulting in a Company obligation to
pay Xxxxxx Severance as provided in Section 5 hereof, (xiii) Xxxxxx'x death, or
(xiv) Xxxxxx'x Complete Disability. The option shall have a term of 10 years
except as otherwise provided in Section 5 hereof. As soon as practicable after
the Employment Date, the Company shall cause the offering of the option and the
Common Shares covered by such option to be registered with the Securities and
Exchange Commission on a Form S-8 Registration Statement.
(d) WELFARE AND RETIREMENT BENEFITS. During the term of Xxxxxx'x
employment with the Company, at no cost to Xxxxxx, the Company shall provide
Xxxxxx with family coverage under the health insurance plan chosen by Xxxxxx
from the plans offered to the Company's regular full-time employees. Xxxxxx may
participate in such additional employee benefit plans, including but not limited
to 401(k), pension, and dental insurance plans, as the Company makes available
generally to executives of the Company.
(e) LIFE INSURANCE. During the term of Xxxxxx'x employment with the
Company, the Company will continue to pay the premiums with respect to that
certain Northwestern Mutual whole life insurance policy owned by Xxxxxx as of
the date hereof, paying a death benefit in the amount of $600,000.
(f) LONG-TERM DISABILITY INSURANCE. During the term of Xxxxxx'x employment
with the Company, the Company will secure and maintain a long-term disability
insurance policy with respect to Xxxxxx providing for benefits of not less than
$5,000 per month for 60 months.
(g) AUTOMOBILE. During the term of the Xxxxxx'x employment with the
Company, the Company will provide Xxxxxx with a monthly automobile allowance of
$1,000.
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(h) VACATION. During the term of the Xxxxxx'x employment with the Company,
Xxxxxx will be allowed up to five (5) weeks of paid vacation during each
calendar year. Unused vacation during any calendar year may not be carried over
into a succeeding calendar year.
(i) DIRECTORS AND OFFICERS INSURANCE. During the term of Xxxxxx'x
employment with the Company, the Company shall use its best efforts to insure
Xxxxxx for all acts and services he performs and provides hereunder and agrees
to indemnify him for any losses, costs, claims, damages and expenses that he may
incur as a result of his employment activities hereunder which are neither
willful nor grossly negligent to the fullest extent permitted under law.
(j) BUSINESS EXPENSES. During the term of Xxxxxx'x employment with the
Company, the Company will reimburse Xxxxxx for the costs of cell phone and home
fax operation, and an Internet telephone line. The Company will reimburse Xxxxxx
for the ordinary and necessary business travel, lodging, meal and entertainment
expenses he reasonably incurs in furtherance of the business activities of the
Company. The Company's agreement under this subparagraph (j) is subject to
Xxxxxx'x substantiation and reporting of such expenses in accordance with
Company policy and applicable federal and state income tax laws.
4. NON-COMPETITION AGREEMENT.
(a) Xxxxxx will not, during the period of Xxxxxx'x employment by or with
the Company, and for a period of one (1) year immediately following the
termination of Xxxxxx'x employment under this Agreement, for any reason
whatsoever, directly or indirectly, for Xxxxxx or on behalf of or in conjunction
with any other person, persons, company, partnership, corporation or business of
whatever nature:
(i) engage, as an officer, director, stockholder, owner, partner,
joint venturer, or in a managerial, consulting or advisory capacity,
whether as an employee, independent contractor, consultant or advisor,
or as a sales representative, in any business which offers any
services or products in direct competition with Company within the
Territory;
(ii) call upon any person who is, at that time, within the
Territory, an employee of the Company in a managerial capacity for the
purpose or with the intent of enticing such employee away from or out
of the employ of Company;
(iii) call upon any person or entity which is, at that time, or
which has been, within one (1) year prior to that time, a client of
Company within the Territory for the purpose of soliciting or selling
products or services in direct competition with Company within the
Territory;
(iv) call upon any prospective acquisition candidate, on Xxxxxx'x
own behalf or on behalf of any competitor, which candidate was, to
Xxxxxx'x actual knowledge after due inquiry, either called upon by
Company or for which Company made an acquisition analysis, for the
purpose of acquiring such entity;
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or
(v) induce or attempt to induce any person known by Xxxxxx to be
a customer, supplier, or business relation of the Company to cease
doing business with the Company or in any way interfere with the
relationship between the Company and any person known by Xxxxxx to be
a customer, supplier, licensee, or business relation of the Company.
Notwithstanding the above, the foregoing covenants shall not be deemed to
prohibit Xxxxxx from acquiring as an investment not more than one percent (1 %)
of the capital stock of a competing business, whose stock is traded on a
national securities exchange or over-the-counter.
(b) Because of the difficulty of measuring economic losses to Company as a
result of a breach of the foregoing covenants, and because of the immediate and
irreparable damage that could be caused to Company for which Company would have
no other adequate remedy, Xxxxxx agrees that the foregoing covenants may be
enforced by Company in the event of breach by Xxxxxx, by injunctions and
restraining orders.
(c) The covenants in this Section 4 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions of any
other covenant. Moreover, in the event any court of competent jurisdiction shall
determine that the scope, time or territorial restrictions set forth are
unreasonable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable, and this
Agreement shall thereby be reformed.
(d) Xxxxxx acknowledges that the covenants in this Section 4 (i) are
agreed to by Xxxxxx as an inducement for and in consideration of the Company's
entering into this Agreement, and (ii) contain limitations as to time,
geographic area and scope of activity to be restrained that are reasonable and
do not impose a greater restraint than is necessary to protect the goodwill or
other business interests of Company.
(e) Xxxxxx agrees that all of the covenants in this Section 4 shall be
construed as an agreement independent of any other provision in this Agreement,
that Company shall be the beneficiary of and have the right to enforce such
covenants, and that the existence of any claim or cause of action of Xxxxxx
against Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Company of such covenants. It is
specifically agreed that the period of one (1) year following termination of
employment stated at the beginning of this Section 4, during which the
agreements and covenants of Xxxxxx made in this Section 4 shall be effective,
shall be computed by excluding from such computation any time during which
Xxxxxx is in violation of any provision of this Section 4.
5. TERM AND TERMINATION.
(a) TERM. Xxxxxx'x employment pursuant to this Agreement shall begin on
the Employment Date, and shall terminate upon the expiration of the Initial
Term, unless extended as
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provided in subparagraph (b) below. Notwithstanding the foregoing, this
Agreement shall immediately terminate upon the occurrence of the following
events: (i) Xxxxxx'x death; (ii) Xxxxxx'x Complete Disability; (iii) Xxxxxx'x
resignation with or without Good Reason; or (iv) termination of Xxxxxx'x
employment by the Company with or without Cause.
(b) EXTENSION OF AGREEMENT. If neither the Company nor Xxxxxx have given
written notice to the other that this Agreement shall not be renewed at the end
of the Initial Term at least sixty (60) days prior to the expiration thereof,
then Xxxxxx'x employment under this Agreement shall be automatically extended
for the Subsequent Term unless sooner terminated as herein provided. In the
event that the Company does not renew this Agreement through the Subsequent
Term, Executive will receive Severance for one (1) year after expiration of the
Initial Term. That portion of Severance attributable to Base Salary shall be
paid, at the election of the Company, in equal monthly installments through the
end of the one (1) year severance period, or in a single lump sum payment made
not more than 30 days after the expiration of the Initial Term. In the event
that Xxxxxx does not renew this Agreement through the Subsequent Term, any
unvested portion of the option described in Section 3(c) hereof shall terminate
upon the expiration of the Initial Term, and any vested portion of such option
shall terminate if not exercised within 90 days of the expiration of the Initial
Term.
(c) DEATH. If Xxxxxx dies while in the employ of the Company, the Company
will pay to Xxxxxx'x Designated Beneficiary Base Salary accrued through the date
of death. The option described in Section 3(c) hereof shall become immediately
exercisable in full. Such option shall terminate if not exercised within one (1)
year after the date of death.
(d) COMPLETE DISABILITY. In the event of Xxxxxx'x Complete Disability, the
Company will pay Xxxxxx Base Salary accrued through the date of Complete
Disability. The option described in Section 3(c) hereof shall become immediately
exercisable in full. Such option shall terminate if not exercised within one (1)
year after the date of Complete Disability.
(e) EXECUTIVE RESIGNATION; COMPANY TERMINATION WITHOUT CAUSE.
(i) Either Xxxxxx or the Company may terminate this Agreement for an
reason without Cause by providing the other party at least five (5) business
days advance written notice of termination.
(ii) Upon termination of this Agreement by Xxxxxx other than for Good
Reason, Xxxxxx shall be entitled to receive Base Salary accrued through the date
of termination. Any unvested portion of the stock option described in Section
3(c) hereof shall terminate immediately, and any vested portion of such option
shall terminate if not exercised within 90 days of termination.
(iii) Upon termination of this Agreement by Xxxxxx for Good Reason, or by
the Company without Cause, Xxxxxx will receive Severance until the later of (i)
the expiration of the Initial Term or Subsequent Term, as applicable, or (ii)
one (1) year after the date of termination. That portion of Severance
attributable to Base Salary shall be paid at the election of the Company in
equal monthly installments through the end of the severance period or in a
single lump sum
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payment not more than thirty (30) days after termination of this Agreement.
Xxxxxx shall have no obligation to seek or obtain other employment and the
failure to seek or obtain other employment shall not reduce in any way the
Company's obligations under this Section 5(e)(iii).
(f) TERMINATION FOR CAUSE. In the event the Company terminates Xxxxxx'x
employment for Cause, Xxxxxx shall be entitled to Base Salary accrued through
the date of termination, but shall be entitled to no further rights or benefits
hereunder. Any unvested portion of the stock option described in Section 3(c)
hereof shall terminate immediately, and any vested portion of such option shall
terminate if not exercised within 90 days of termination.
6. RETURN OF COMPANY PROPERTY. All records, files, business plans,
financial statements, manuals, memoranda, lists, designs, patents, and other
property delivered to or compiled by Xxxxxx by or on behalf of Company or any of
its representatives, vendors or clients which pertain to the business of Company
shall be and remain the property of Company and be subject at all times to its
discretion and control. Likewise, all correspondence, reports, records, charts,
advertising materials and other similar data pertaining to the business,
activities or future plans of Company which is collected by Xxxxxx shall be
delivered promptly to the Company without request by it upon termination of
Xxxxxx'x employment.
7. INVENTIONS AND WORKS. Xxxxxx shall disclose promptly to the Company
any and all significant conceptions and ideas for inventions, improvements and
valuable discoveries, whether patentable or not, and any and all works of
authorship (including computer software), whether copyrightable or not, which
are conceived or made by Xxxxxx, solely or jointly with another, during the
period of employment or within one (1) year thereafter, and which are directly
related to the business or activities of Company and which Xxxxxx conceives as a
result of Xxxxxx'x employment by the Company. Xxxxxx hereby assigns and agrees
to assign all Xxxxxx'x interests therein to the Company or its nominee. Whenever
requested to do so by the Company, Xxxxxx shall execute any and all
applications, assignments or other instruments that the Company shall deem
necessary to apply for and obtain copyright registration or Letters Patent of
the United States or any foreign country or to otherwise protect the Company's
interest therein.
8. TRADE SECRET, PROPRIETARY AND CONFIDENTIAL INFORMATION. Xxxxxx
acknowledges and agrees that during the course of Xxxxxx'x employment with the
Company, Xxxxxx may learn about, develop or be entrusted with Trade Secret,
Proprietary and Confidential Information. The Company has in the past and will
in the future use reasonable efforts to keep secret the Trade Secret,
Proprietary and Confidential Information. Xxxxxx expressly acknowledges and
agrees that unless the Trade Secret, Proprietary and Confidential Information
becomes publicly known through legitimate means not involving an act or omission
by Xxxxxx: (i) the Trade Secret, Proprietary and Confidential Information is,
and at all times shall remain, the sole and exclusive property of the Company
unless it shall become publicly known in the Company's business without any
involvement on Xxxxxx'x part; (ii) Xxxxxx shall use the utmost diligence to
guard and protect the Trade Secret, Proprietary and Confidential-Information
from disclosure to any other person or entity except in the scope of the
discharge of his duties to the Company; (iii) Xxxxxx shall not use for his own
benefit, or for the benefit of any other person or entity other than the
Company, and shall not disclose, directly or indirectly, to any other person
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or entity, any of the Trade Secret, Proprietary and Confidential Information
except in the scope of the discharge of his dudes to the Company; and (iv)
except in the scope of the discharge of his duties to the Company, Xxxxxx shall
not seek or accept any of the Trade Secret, Proprietary and Confidential
Information from any former, present, or future employee of the Company.
9. NO PRIOR AGREEMENTS. Xxxxxx hereby represents and warrants to the
Company that the execution of this Agreement by Xxxxxx and Xxxxxx'x employment
by the Company and the performance of Xxxxxx'x duties hereunder will not violate
or be a breach of any agreement with a former employer, client or any other
person or entity. Further, Xxxxxx agrees to indemnify the Company for any claim,
including, but not limited to, attorneys fees and expenses of investigation, by
any such third party that such third party may now have or may hereafter come to
have against the Company based upon or arising out of any non-competition
agreement, invention or secrecy agreement between Xxxxxx and such third party
which was in existence as of the date of this Agreement.
10. ASSIGNMENT; BINDING EFFECT. Xxxxxx understands that Xxxxxx has been
selected for employment by the Company on the basis of Xxxxxx'x personal
qualifications, experience and skills. Xxxxxx agrees, therefore, that Xxxxxx
cannot assign all or any portion of Xxxxxx'x performance under this Agreement.
Subject to the preceding two (2) sentences, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, legal representatives, successors and assigns.
11. NO GUARANTEE OF EMPLOYMENT. This Agreement does not create any
obligation of the Board to accept any proposed venture capital investment, or
any guarantee that an Employment Date will occur. In the event that Xxxxxx is
employed by the Company in any capacity prior to an Employment Date, the terms
of this Agreement shall not apply.
12. COMPLETE AGREEMENT. This Agreement is not a promise of future
employment. Xxxxxx has no oral representations, understandings or agreements
with the Company or any of its officers, directors or representatives covering
the same subject matter as this Agreement. This written Agreement is the final,
complete and exclusive statement and expression of the agreement between the
Company and Xxxxxx and of all the terms of this Agreement, and it cannot be
varied, contradicted or supplemented by evidence of any prior or contemporaneous
oral or written agreements. This written Agreement may not be later modified
except by a further writing signed by a duly authorized officer of the Company
and Xxxxxx, and no term of this Agreement may be waived except by writing signed
by the party waiving the benefit of such term.
13. NOTICE. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To the Company: Xxxxxxxx.xxx Incorporated
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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To Xxxxxx: Xxxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Notice shall be deemed given and effective three (3) days after the deposit
in the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received if earlier.
Either party may change the address for notice by notifying the other party of
such change in accordance with this Section 13.
14. SEVERABILITY; HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of this
Agreement or of any part hereof.
15. ARBITRATION. Any dispute, controversy or claim arising out of or
relating to this Agreement or the breach or performance hereof will be settled
by arbitration in accordance with the laws of the State of Delaware by an
arbitrator mutually agreed upon by the Company and Xxxxxx. If an arbitrator
cannot be agreed upon, the Company and Xxxxxx shall each choose an arbitrator,
and these two together shall select a third arbitrator. If the first two
arbitrators cannot agree on the appointment of a third arbitrator, then the
third arbitrator will be appointed by the American Arbitration Association in
Providence, Rhode Island. Such arbitration will be conducted in the City of
Providence in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, except with respect to the selection of arbitrators
which shall be as provided in this Paragraph 15. Judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
16. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Delaware.
17. COUNTERPARTS. This Agreement may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXXXXXX.XXX INCORPORATED
By: /s/ Xxxxx X. High
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Title: President
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Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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