EXHIBIT 10.40
AGREEMENT
Agreement dated May 28, 2003 between Xxxxxx Xxxxxxx ("Xxxxxxx")
and Salton, Inc. ("Salton").
Whereas:
X. Xxxxxxx is well known celebrity in the United States and other parts of the
world, possesses a demonstrated ability to interest consumers in the
purchase of goods and services and is an independent contractor in the
business of acting as a spokesperson for various businesses and their
products and services and appearing as a TV commentator for sporting
events.
X. Xxxxxx is in the business of marketing products, including, particularly,
products that are used and useful in the preparation of food and
nonalcoholic beverages, personal care products, and other products intended
to be attractive to consumers.
X. Xxxxxx desires to have the benefit of Xxxxxxx'x services as a consultant
and spokesperson for Salton, including participating in the making of and
appearing in TV infomercials and TV commercials, as well as other types of
personal appearances in order to promote products marketed by Salton; and
X. Xxxxxxx and Salton have agreed on compensation to be paid to Xxxxxxx for
his services and appearances.
Therefore, Xxxxxxx and Salton agree as set forth below.
1. Term. The term of this Agreement begins on the date that it is executed by
Xxxxxxx and is delivered to Salton and it ends on November 30, 2006 (the
"Term"). The Term is divided into three (3) separate service periods
("Service Periods"); the first ends November 30, 2004, the second ends
November 30, 2005 and the third and final Service Period ends November 30,
2006.
2. Fees for Services.
2.1 For the three separate services described in Section 3, during each
Service Period, Xxxxxxx shall be paid total of $3,000,000 divided into 4
installments in each period. The following amounts for each installment of
service rendered by Xxxxxxx:
Promotional Appearances $300,000
Attendance at Conferences, shows and meetings $100,000
TV Appearances, Infomercials and Commercials $350,000
--------
Total Per Quarter $750,000
2.2 The amounts owed to Xxxxxxx for each installment shall be paid with the
first installment due September 30th, 2003.
2.3 Salton shall have the option to pay Xxxxxxx up to fifty percent (50%)
of the full amount owed to Xxxxxxx for each quarterly period by delivering,
in lieu of cash, shares of Salton common stock (the "Shares") to Xxxxxxx
provided that: (i) Salton gives notice to Xxxxxxx on or before the forty
fifth (45th) day following the end of each quarter and (ii) the Shares, at
the time they are issued and delivered to Xxxxxxx, have been registered
with the United States Securities and Exchange Commission (the "SEC"), so
that the Shares will not contain only restrictive legend and can, at
Xxxxxxx'x election, be freely sold by Xxxxxxx immediately upon delivery to
Xxxxxxx or at such
later time as Xxxxxxx elects so long as the registration statement covering
the Shares remains in effect as set forth in Exhibit A to this Agreement.
2.4 The terms and conditions on which the Shares are issued to Xxxxxxx,
including the valuation of the Shares for payment purposes, Xxxxxxx'x right
to additional payments if the Shares fall in value, Xxxxxxx'x obligation to
share with Salton any increase in the value of the Shares and other terms
and conditions relating to the registration of the Shares for sale by
Xxxxxxx are set forth in Exhibit A.
3. Services Defined.
3.1 General. Generally, Xxxxxxx shall assist Salton in developing sales of
Xxxxxxx trademarked products for Salton and in maintaining good business
relations with Salton's customers and suppliers. Throughout each of the
three Service Periods under the Agreement, Xxxxxxx'x specific assignments
shall be determined by Xxxx Xxxxxxxx, the Chief Executive Officer of Salton
and, in the absence of Dreimann, by another officer of Salton designated by
the Board of Directors of Salton.
3.2 Initial Services. Initially, Xxxxxxx'x assignment shall be the
following:
(i) attend conferences, shows and meetings on behalf of Salton
and meet with executives of retailing companies and other
types of companies and meet with marketing personnel and
store managers of retailers;
(ii) make public appearances for promotional purposes in stores
of retail customers of Salton and appearances at other
private and public events to promote sales of products for
Salton;
(iii) act in TV commercials and TV informercials promoting
products of the Company, particularly Xxxxxxx trademarked
products, including initial shoots and any additional shoots
or remakes required or desirable in order to complete the
commercials and infomercials, make appearances on television
shopping channels, such as QVC and to promote such products.
The assignment shall be performed both in the United States and other areas
of the world where Salton products are marketed to consumers; such areas
include, at the present time, Canada, the United Kingdom and portions of
Western Europe, including Germany and France, Australia, New Zealand and
South Africa.
3.3 Xxxxxxx Availability and Condition. During the Service Periods, and
excluding any periods of vacation, temporary illness or temporary
disability, Xxxxxxx agrees to keep himself available and ready in order to
perform the services designated and assigned under this Agreement and to
use his best efforts to perform faithfully and efficiently, and to give all
of the time reasonably required in order to perform each of the services
and tasks that Salton requests of him, as set forth in this Agreement. It
is a condition to continued payment under this Agreement that Xxxxxxx
maintain a healthy condition and appearance (other than in cases of
temporary illness or temporary disability) that permits Xxxxxxx, to the
extent that he has demonstrated over the past three years, to continue to
travel, appear and speak on behalf of Salton and its products.
3.4 Other Activities. While Salton shall have the right to call on Xxxxxxx
to perform services at any time during each of the Service Periods, Salton
agrees to make reasonable accommodations to Xxxxxxx'x own schedule of
activities in order to allow Xxxxxxx to (a) serve on civic or charitable
boards or committees; (b) continue his work for his church; (c) supervise
the Xxxxxxx sports facility which he now operates for the benefit of
children near his Texas home; (d) act in infomercials promoting products
and services which he has promoted in the past; (e) deliver lectures and
fulfill engagements or appearances related to the sport of boxing and the
published autobiography of his
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life that he is now promoting and (f) manage his personal investments, so
long as such activities do not interfere in a material way with Xxxxxxx
performing his services as an independent agent performing services for
Salton under this Agreement.
3.5 Xxxxxxx shall refrain from commenting or taking actions which might
reasonably be determined to be derogatory to Salton.
4. Travel Cost Reimbursement. In connection with all appearances by Xxxxxxx
under this Agreement, Salton shall reimburse Xxxxxxx for his documented
travel and travel related out of pocket expenses, including first class
airfare, first class hotel, limousine travel and a bodyguard to accompany
Xxxxxxx during his travel and appearance time.
5. Products on which Xxxxxxx Receives a Profit Sharing, Royalty or other
Payment. Sections 2, 3 and 4 do not apply to appearances for products where
Xxxxxxx receives separate compensation in profits, royalties, or other
payments which are covered by separate agreements with Salton which are
described in this Section 5. In any instance where, based on a separate
agreement between Xxxxxxx and Salton, Xxxxxxx receives a share of the
profits, a royalty or other compensation or payments based on the sale of
the product or service for which Xxxxxxx makes an appearance, Xxxxxxx'x
efforts shall not be considered part of the work that can be required of
Xxxxxxx as an independent contractor rendering services to Salton under
this Agreement and his appearances on behalf of such products are not part
of this Agreement. Xxxxxxx shall receive only his share of the profits,
royalty or other payments related to the sale of such products or services
based on his separate agreements with Salton. As an example, Xxxxxxx and
Salton have agreed to share profits in connection with a promotion on the
QVC television network of a steakburger made by the Kansas City Steak
Company which Xxxxxxx has endorsed and which may be advertised by under
Xxxxxxx'x name or picture. In the case of such an appearance, Xxxxxxx will
be compensated in accordance with his separate agreement with Salton.
However, Xxxxxxx will be compensated in any event for his travel expenses
in connection with appearances as detailed in Section 4.
6. Independent Agent. Xxxxxxx is acting as an independent agent under this
Agreement and not as an employee or agent of Salton.
Salton, Inc.
By: /s/ Xxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxx
--------------------------- ---------------------------
Xxxx Xxxxxxxx Xxxxxx Xxxxxxx
Chief Executive Officer
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EXHIBIT A TO AGREEMENT DATED AS OF MAY 28, 2003
BETWEEN
SALTON, INC. (the "Company") AND XXXXXX XXXXXXX ("Xxxxxxx").
WHEREAS:
A. the Company and Xxxxxxx are parties to an agreement (the "Service
Agreement") dated as of May 28, 2003 pursuant to which Xxxxxxx, as an
independent contractor/consultant/spokesperson agrees to perform certain
services for the Company over three consecutive periods ending on November
30, 2004. November 30, 2005 and November 30, 2006 (each referred to in the
Service Agreement as a "Service Period") and
B. under the Service Agreement, Xxxxxxx has the right to receive quarterly
payments during each Service Period;
C. under the Service Agreement, the Company has a continuing option (the
"Option") to pay to Xxxxxxx on or before the date when each quarterly
payment is due and owing under the Service Agreement one half of the
quarterly installment in shares of common stock, $.01 par value per share,
of the Company (the "Shares") in lieu of one half of the quarterly cash
payment owing pursuant to Section 2 of the Service Agreement, provided
that: (i) a registration statement on Form 8 covering the Shares has been
filed with the United States Securities and Exchange Commission ("SEC");
and (ii) such registration statement has become effective so that the
Shares can be sold by Xxxxxxx at any time after his receipt of the Shares;
and
D. the purpose of this Exhibit A is to set forth the terms and conditions on
which the Shares shall be issued to Xxxxxxx, if and whenever Salton
exercises its Option;
THEREFORE, the Company and Xxxxxxx agree as follows:
1. Representations, Warranties and Agreements of the Company. The Company
hereby represents and warrants to and agrees with Xxxxxxx that:
(a) Organization and Standing of the Company. The Company is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware.
(b) Authority. The Company has the requisite corporate power and
authority to enter into this Agreement and to carry out its
obligations hereunder. The execution, delivery and performance of
this Agreement by the Company have been duly and validly
authorized by all requisite corporate proceedings on the part of
the Company and do not require the approval or consent of any
stockholders of the Company. This Agreement has been duly
executed and delivered by the Company and is (assuming the due
authorization, execution and delivery by Xxxxxxx) a valid and
binding agreement of the Company, enforceable against it in
accordance with its terms, except as such enforceability may be
limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally or by the
availability of equitable remedies and except as rights of
indemnity or contribution may be limited by federal or state
securities or other laws or the public policy underlying such
laws.
(c) Status of Shares. The Shares have been (or will be) duly
authorized by all necessary corporate action on the part of the
Company (no consent or approval of stockholders being required by
law, the Certificate of Incorporation of the Company, as amended
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and restated, or its By-laws). The Shares, when delivered
pursuant to this Agreement, will be validly issued and
outstanding, fully paid and nonassessable and free and clear of
any liens (other than those imposed by the securities laws), and
the issuance of such Shares is not and will not be subject to
preemptive or similar rights of any other stockholder of the
Company. For purposes of this Exhibit A, Shares shall mean both
the shares of Common Stock issued to Xxxxxxx pursuant to this
Agreement, and any additional shares of Common Stock issued to
Xxxxxxx in accordance with Section 3(f) of this Exhibit A.
(d) Shares issued to Xxxxxxx shall be delivered to Xxxxxxx not later
that the tenth business day next following the date on which the
Company gives notice to Xxxxxxx that it is exercising its option
to pay Xxxxxxx up to fifty percent (50%) of the amount owed to
Xxxxxxx for his services under the Service Agreement for the
preceding quarter. The Shares delivered to Xxxxxxx shall be
valued at the average closing price of the NYSE Corporate
Reporting System as published in The Wall Street Journal or, if
not published therein, in another alternative source during the
ninety (90) trading days ending on the fifth (5th) trading day
preceding the date of payment (the "Issuing Value")
2. Representations and Warranties of Xxxxxxx. Xxxxxxx hereby represents and
warrants to the Company that this Agreement has been duly executed and
delivered by Xxxxxxx and is (assuming the due authorization, execution and
delivery by the Company) a valid and binding agreement of Xxxxxxx,
enforceable against Xxxxxxx in accordance with its terms except as may be
limited by bankruptcy and insolvency laws and by other laws affecting the
rights of creditors generally and except as may be limited by the
availability of equitable remedies and except as rights of indemnity or
contribution may be limited by federal or state securities or other laws or
the public policy underlying such laws.
3. Registration.
(a) The Company agrees that prior to any time that the Company exercises
its option to pay Xxxxxxx in Shares of the Company, the Company shall,
at its sole expense, have prepared and filed with the United States
Securities and Exchange Commission (the "Commission") a registration
statement under the Securities Act of 1933, as amended, on Form S-8
(including a prospectus therein) (or amend and continue the
effectiveness of any other then appropriate and existing registration
statement) with respect to the Shares to be issued to Xxxxxxx and to
have caused the registration to become effective prior to the delivery
of such Shares to Xxxxxxx and shall cause the registration to remain
effective for such period as may be necessary to permit the successful
marketing by Xxxxxxx of such Shares. The date on which Xxxxxxx is
entitled to use such prospectus for the sale of the Shares is
sometimes referred to herein as the "Effective Date".
(b) Notwithstanding the foregoing, the Company shall be entitled to
prohibit any offers or sales of the Shares pursuant to the prospectus
after the Effective Date for a reasonable period of time (but not
exceeding an aggregate of ninety (90) days during any 12 month period)
if the Company determines, in its sole discretion, that (i) the
Company is in possession of material information that has not been
disclosed to the public and the Company reasonably determines in its
sole discretion that it would be significantly detrimental to the
Company and its stockholders to disclose such information at such time
in a registration statement or (ii) such registration and sale by
Xxxxxxx would interfere with any financing, acquisition, corporate
reorganization or other material transaction involving the Company or
any of its affiliates and, in any such case, the Company promptly
gives Xxxxxxx written notice
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of such determination, containing a general statement of the reasons
for such postponement and an approximation of the anticipated delay.
Xxxxxxx agrees that, upon receipt of any such written notice, he will
forthwith discontinue disposition of any Shares until he receives
notice in writing from the Company that the use of the prospectus may
be resumed. The Company shall furnish to Xxxxxxx promptly after the
date when the registration statement becomes effective a number of
prospectuses as may be reasonably required in order to facilitate the
public sale of the Shares. Xxxxxxx shall furnish to the Company such
information regarding Xxxxxxx and the sale of the Shares as the
Company may from time to time reasonably request in order to comply
with the Securities Act.
(c) If Shares are issued to Xxxxxxx in payment for amounts owing to
Xxxxxxx with respect to a Service Period and the sum (the "Realized
Value") of:
(i) the aggregate proceeds (after reasonable and customary
brokerage commissions) from the sale by Xxxxxxx to the public
of Shares issued to Xxxxxxx as pay with respect to that
Service Period during the period ("Measuring Period") that (x)
begins on the date of issuance of such Shares with respect to
that Service Period and (y) ends on the first anniversary of
such date plus
(ii) the market value (based on the average closing price of the
Common Stock of Salton (as reported on the NYSE Composite
Transactions Reporting System as published in The Wall Street
Journal or, if not published therein, in another alternative
source) during the ninety (90) trading days ending on the last
day of the Measuring Period of the Shares issued to Xxxxxxx as
pay with respect to that Service Period and which Xxxxxxx
continued to hold on the last day of the Measuring Period is
less than
(iii) a sum equal to the product of (x) the number of such Shares
issued to Xxxxxxx as pay with respect to that Service Period
multiplied by (y) the Issuing Value as that term is defined in
Section 1(d) above
then, the Company shall pay to Xxxxxxx an amount in cash (or, at the
election of the Company in accordance with Section 3(f) hereof, in
additional Shares equal to the difference between (a) the Issuing
Value and (b) the Realized Value").
(d) If the Realized Value of the Shares issued with respect to a Service
Period and valued in accordance with Section 3(d) above exceeds the
Issuing Value of those Shares, then Xxxxxxx shall pay to the Company
an amount in cash equal to fifty percent (50%) of the excess following
the notice from Salton to Xxxxxxx of determination of the Realized
Value and the amount of the excess of the Realized Value over the
Issuing Value. Payment shall be made as required by Section 3(f).
(e) Xxxxxxx agrees that he will not sell in the aggregate more than 50,000
Shares during any trading day and that he will use his reasonable best
efforts to obtain the best available sales price for any Shares
received in pay for a Service Period.
(f) Payments required to be made by any party to any other party pursuant
to Section 3(d) or 3(e) shall be made promptly after the amount of the
payment is determined (and in any event not later than sixty (60) days
after the one year anniversary of the end of the Service Period). The
Company shall have the right to make any payment required by Section
3(d) hereof with respect to any Service Period by issuing additional
shares of Common Stock to Xxxxxxx, and if the
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Company makes such election, then the Company shall issue to Xxxxxxx
that number of shares of Common Stock that is equal to (1) the dollar
amount of the payment required, divided by (2) the average closing
price of the Common Stock (as reported on the NYSE Corporate Reporting
System as published in The Wall Street Journal or, if not published
therein, in another alternative source) during the ninety (90) trading
days ending on the fifth (5th) trading day preceding the date of
payment. Each of the parties will cooperate with each other and
furnish each other information (including, without limitation,
documented information concerning any sales of the Shares) to
determine the amount of payments due pursuant to Sections 3(d) and (e)
above. For purposes of this Section 3, in the event that Xxxxxxx sells
any of the Shares pursuant to a merger, tender offer or similar
transaction involving the Company, he shall be deemed to have sold
such Shares to the public for an amount equal to the aggregate
consideration he receives for the sale or transfer of such Shares in
such transaction.
(g) The Company shall indemnify and hold harmless Xxxxxxx any expenses,
losses, claims, damages or liabilities, joint or several, to which
Xxxxxxx may become subject under the Securities Act or the Securities
Exchange Act of 1934, as amended, including any of the foregoing
incurred in settlement of any litigation, commenced or threatened,
insofar as such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact
contained in the registration statement or final prospectus contained
therein, or any amendment or supplement thereto; or (ii) any omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and
shall reimburse each Xxxxxxx for any legal or any other expenses
reasonably incurred by him in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to the
extent that any such expense, loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the registration
statement or said prospectus or said amendment or supplement in
reliance upon and in conformity with written information furnished to
the Company by Xxxxxxx specifically for use in the preparation
thereof.
(h) Xxxxxxx shall indemnify and hold harmless the Company and each person,
if any, who controls the Company within the meaning of the Securities
Act, each officer of the Company who signs the registration statement
and each director of the Company, against any and all such expenses,
losses, claims, damages or liabilities referred to in Section 3(h)
above if the statement, alleged statement, omission or alleged
omission in respect of which such expense, loss, claim, damage or
liability was made in reliance upon and in conformity with information
furnished in writing to the Company by Xxxxxxx specifically for use in
connection with the preparation of the registration statement,
prospectus, amendment or supplement.
(i) Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party,
notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 3 or to the extent that it has not
been prejudiced as a proximate result of such failure. In case any
such action shall be brought against any indemnified party, and it
shall notify the indemnifying party of the
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commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, to assume
the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any
such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have
the right to select one separate counsel to assert such legal defenses
(in which case the indemnifying party shall not have the right to
direct the defense of such action on behalf of the indemnified party
or parties). Upon the permitted assumption by the indemnifying party
of the defense of such action, and approval by the indemnified party
of counsel, the indemnifying party shall not be liable to such
indemnified party under this Section 3 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof (other than reasonable costs or investigation) unless
(i) the indemnified party shall have employed one separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence, (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time, (iii) the indemnifying party and its counsel do not
actively and vigorously pursue the defense of such action or (iv) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party.
(j) If the Company issues Shares to Xxxxxxx with respect to any Service
Period, then, from the end of such Service Period until eighteen (18)
months next following the end of such Service Period under the Service
Agreement, the Company also agrees to use its reasonable best efforts
to file with the Commission such information as is required under the
Securities Exchange Act of 1934, as amended, and to take all actions
as may be required as a condition to the availability of Rule 144
under the Securities Act.
4. Miscellaneous.
(a) Specific Performance. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement
were not performed by the applicable party hereto in accordance with
the specific terms of this Agreement or were otherwise breached. Each
of the parties hereto shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement by the other and to
enforce specifically the terms and provisions hereof in addition to
any other remedy to which such party is entitled at law or in equity,
and each party waives the posting of any bond or security in
connection with any proceeding related thereto.
(b) Expenses. Except for the Company's payment of the costs and expenses
of filing a registration statement (including a prospectus therein)
with respect to the sale of the Shares, no party hereto shall be
responsible for the payment of any other party's expenses incurred in
connection with this Agreement.
(c) Third Party Beneficiaries. The terms and provisions of this Agreement
are intended solely for the benefit of each party hereto and his or
its respective successors and permitted assigns, and it is not the
intention of the parties to confer third party beneficiary rights upon
any other person or entity.
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(d) Amendments. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written
agreement executed by each of Xxxxxxx and the Company.
(e) Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, in whole or in part, by
Xxxxxxx without the prior written consent of the Company. Subject to
the preceding sentence, this Agreement will be binding upon, inure to
the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
(f) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given
only when delivered and if delivered by one of the following methods:
(i) delivered personally; (ii) sent by a nationally recognized
overnight courier (providing proof of delivery) or (iii) mailed by
U.S. registered or certified mail, return receipt requested to the
parties at the following addresses (or at such other address for a
party as shall be specified by like notice).
(i) if to Xxxxxxx, to Xxxxxx Xxxxxxx
with a copy to:
Xxxx Frankfort, Xxxxx & Xxxx
00 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx III
(ii) if to the Company, to
Salton, Inc.
0000 Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Chief Executive Officer
with a copy to:
Salton, Inc.
0000 Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
(g) Governing Law. This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of Delaware, without regard to the
conflict of law principles thereof. All actions and proceedings arising out
of or relating to this Agreement shall be heard and determined in any state
or Federal court sitting in Delaware. Each of the parties hereto (i)
consents to submit such party to the personal jurisdiction of any Federal
court located in the State of Delaware or any Delaware state court in the
event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (ii) agrees that such party will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave
from any such court, (iii) agrees that such party will not bring any action
relating to this
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Agreement or the transactions contemplated hereby in any court other than a
Federal court sitting in the State of Delaware or a Delaware state court
and (iv) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
(h) Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to constitute an original. This Agreement
shall become effective when one counterpart signature page has been signed
by each party hereto and delivered to each of the other parties.
(i) Effect of Headings. The descriptive headings contained herein are for
convenience of reference only and shall not affect in any way the meaning
or interpretation of this Agreement.
(j) Further Assurances. Each of the parties hereto agrees to execute and
deliver all such further documents, certificates and instruments, and take
all such further reasonable action as may be necessary or reasonably
appropriate, in order to consummate the transactions contemplated hereby.
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