Exhibit 10.40
EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is entered into as of
August 14, 2000 (the "EFFECTIVE DATE"), by and between Xxxxx Xxxxxxx (the
"EXECUTIVE") and Xxxxxxxxxx.xxx, Inc., a Delaware corporation (the "COMPANY").
RECITALS
The Company desires that the Executive be employed by the Company in
the capacities described below, on the terms and conditions hereinafter set
forth, and the Executive is willing to accept such employment on such terms and
conditions.
AGREEMENT
The Executive and the Company agree as follows:
1. DUTIES.
1.1 RETENTION. The Company does hereby hire, engage, and employ the
Executive as the Chief Financial Officer of the Company, and the
Executive does hereby accept and agree to such hiring, engagement, and
employment. During the Period of Employment (as defined in Section 2),
the Executive shall serve the Company in such position, and shall have
duties and authority consistent with such position (including primary
general authority over the Company's finance department), subject,
however, to the other provisions of this Agreement, directives of the
Chief Executive Officer of the Company (the "CEO") and/or the Board of
Directors of the Company (the "BOARD"), and the corporate policies and
budgets of the Company as they presently exist, and as such policies
and budgets may be amended, modified, changed, or adopted during the
Period of Employment. During the Period of Employment, the Executive
shall report to the CEO. The Executive shall also serve as a member of
the Board of Directors during the Period of Employment.
1.2 NO OTHER EMPLOYMENT. Throughout the Period of Employment, the Executive
shall devote his full business time, energy, and skill to the
performance of his duties for the Company (vacations and other leave
authorized under this Agreement excepted) and shall devote his best
efforts to advancing the interests of the Company. The Executive agrees
that any appointment to or continuing service on the board of directors
of any corporation must be approved in writing by the Company, such
approval not to be unreasonably withheld if the Company determines that
such appointment should not interfere with the performance of the
Executive's duties hereunder; provided that the Company's advance
approval is not required for the Executive to serve on the board of
directors or as an officer of any non-profit trade association, or of
any non-profit civic, educational or other charitable organization (in
each case subject to the following sentence). The Executive's continued
membership on any board or in any other position referenced in the
preceding sentence, on or in which he may now or in the future serve,
is subject to the conditions (a)
that the Executive's membership or position does not materially
interfere with the performance of the Executive's duties hereunder, and
(b) that the entity with which the Executive is affiliated does not
compete (within the meaning of Section 9, without giving effect to the
last sentence thereof) with the business of any entity within the
Company Group. For purposes of this Agreement, the "COMPANY GROUP"
includes, collectively, the Company and any subsidiary or affiliate of
the Company.
1.3 NO BREACH OF CONTRACT. The Executive hereby represents to the
Company that his execution and delivery of this Agreement and the
performance of his duties hereunder will not constitute a breach of, or
otherwise contravene, the terms of any employment or other agreement or
policy to which the Executive is a party or otherwise bound. The
Company hereby represents to the Executive that it is authorized to
enter into this Agreement and that the execution and delivery of this
Agreement and the employment of the Executive hereunder will not
constitute a breach of, or otherwise contravene, the terms of any law,
agreement or policy by which it is bound.
2. PERIOD OF EMPLOYMENT.
The "PERIOD OF EMPLOYMENT" shall, unless sooner terminated as provided
herein, be a one (1) year period commencing on the Effective Date and
ending at the close of business on the day before the first (1st)
anniversary of the Effective Date. Notwithstanding the preceding
sentence, commencing on the first anniversary of the Effective Date and
each anniversary thereof (each an "EXTENSION DATE"), the Period of
Employment shall be automatically extended for an additional one-year
period, unless the Company provides the other party hereto at least six
(6) months prior written notice before the next scheduled Extension
Date that the Period of Employment shall not be so extended. The term
"Period of Employment" shall include any extension that becomes
applicable pursuant to the preceding sentence.
3. COMPENSATION.
3.1 BASE SALARY AND BONUS. The Executive's initial Base Salary shall be at
a rate of $157,500 annually, paid in accordance with the Company's
regular payroll practices in effect from time to time, but not less
frequently than in monthly installments. (As used in this Agreement,
"Base Salary" shall mean Base Salary as it may be increased by the
Company, in its discretion, from time to time.) The Executive's Base
Salary, as in effect from time to time, shall not be decreased for any
reason or for any purpose (including for purposes of determining any
amounts due to the Executive upon a termination of his employment)
during the Period of Employment. The Executive shall be eligible for
profit-sharing bonuses and/or discretionary bonuses, to be determined
in amounts consistent with other executive officers.
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a. SIGN-ON BONUS. Executive shall be paid a sign-on bonus in the amount of
$15,000.00. Such amount is considered to be a consulting payment and,
as such, Executive shall be responsible for any taxes and withholding
due as a result of this payment.
b. EQUITY COMPENSATION. As soon as administratively practicable after the
Effective Date, the Executive shall be granted stock options for
100,000 shares of Tekinsight Common Stock. Such options shall become
immediately vested upon grant. The exercise price of the options shall
be $3.00 per share, for a period of ten years. The Executive shall be
considered for additional stock option grants, in accordance with the
policies and procedures of the Company then in effect for executive
management stock option grants.
c. BOARD OF DIRECTOR COMPENSATION. The Executive shall be compensated as a
member of the Board of Directors in an amount consistent with other
Board members of the Company, including annual stock option grants
issued to Board members.
4. BENEFITS.
4.1 HEALTH AND WELFARE. During the Period of Employment, the Executive
shall be entitled to participate in all pension and welfare benefit
plans and programs generally made available to the Company's executive
management, as such plans or programs may be in effect from time to
time, including, without limitation, pension, profit sharing, savings
and other retirement plans or programs, medical, dental,
hospitalization, short-term and long-term disability and life insurance
plans, accidental death and dismemberment protection, travel accident
insurance, and any other pension or retirement plans or programs and
any other employee welfare benefit plans or programs that may be
sponsored by the Company from time to time, including any plans that
supplement the above-listed types of plans or programs, whether funded
or unfunded. The Company shall supplement the insurance coverage and
benefits in a separate executive benefits plan that includes a minimum
of $1 million life insurance coverage and appropriate long-term
disability coverage, which benefit plans, for the Executive and his
dependents, shall be fully paid by the Company.
4.2 REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES; PERQUISITES
4.2.1 EXPENSE REIMBURSEMENT. The Executive is authorized to incur
reasonable expenses in carrying out his duties and
responsibilities under this Agreement and the Company shall
promptly reimburse him for all business expenses incurred in
connection with carrying out the business of the Company,
subject to the Company's reimbursement policies and procedures
for executive officers in effect from time to time. Business
expenses shall include cellular phone costs and a home
business telephone line, with broadband access.
i. PERQUISITES. During the Period of Employment, the Executive
shall be entitled to Company-reimbursed operating expenses for
his vehicle in an amount not to
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exceed $375.00 per month. Such expense reimbursements shall be
submitted on an expense report.
ii. OTHER. Executive shall participate in an executive perk fund
with parameters to be determined by the CEO.
4.3 VACATIONS AND OTHER LEAVE. During the Period of Employment, the
Executive shall receive at least three (3) weeks paid vacation per
year, accrued upon the Effective Date of this Agreement, or on the
extension date of future periods. The Executive shall also be entitled
to all other holiday and leave pay generally available to the Company's
executive management.
5. DEATH OR DISABILITY.
5.1 DEFINITION OF DISABLED AND DISABILITY. For purposes of this Agreement,
the terms "DISABLED" and "DISABILITY" shall mean the Executive's
inability, because of physical or mental illness or injury, to perform
the essential function of his customary duties pursuant to this
Agreement, with or without reasonable accommodation, and the
continuation of such disabled condition for a period of one hundred
twenty (120) continuous days, or for not less than one hundred eighty
(180) days during any continuous twenty-four (24) month period. The
Company reserves the right, in good faith, to make the determination of
disability under this Agreement based upon information supplied by the
Executive and/or his medical personnel, as well as information from
medical personnel or others selected by the Company or its insurers.
5.2 TERMINATION DUE TO DEATH OR DISABILITY. If the Executive dies or
becomes Disabled during the Period of Employment, the Period of
Employment and the Executive's employment shall automatically cease and
terminate as of the date of the Executive's death or the date of
Disability (which date shall be determined under Section 5.1 above), as
the case may be. In the event of the termination of the Executive's
employment due to his death or Disability, the Executive (or, in the
event of his death, his estate) shall be entitled to receive only those
benefits set forth in Section 7.1; provided that if the Executive's
employment is terminated by reason of the Executive's Disability, he
shall, so long as his Disability continues, remain eligible for all
benefits provided under any long-term disability programs of the
Company in effect at the time of such termination, subject to the terms
and conditions of any such programs, as the same may be changed,
modified or terminated for or with respect to employees of the Company
generally.
6. TERMINATION.
6.1 TERMINATION FOR CAUSE. The Company may, by providing written notice to
the Executive, terminate the Period of Employment and the Executive's
employment hereunder for Cause at any time. The term "CAUSE" for
purposes of this Agreement shall mean:
(a) the Executive is convicted of, or has pleaded guilty or
entered a plea of nolo contendere to, a felony (under the
laws of the United States or any state thereof);
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(b) fraudulent conduct by the Executive in connection with the
business affairs of any member of the Company Group or the
theft, embezzlement, or other criminal misappropriation of
funds by the Executive from any member of the Company Group;
(c) the Executive's failure to perform the duties of the Company's
Chief Financial Officer, after reasonable notice has been
provided of such non-performance and, if such failure is
curable, Executive has not cured such failure within a
reasonable period following such notice;
(d) the Executive's failure to comply with reasonable directives
of the Board or the CEO which are communicated to him in
writing, after reasonable notice has been provided of such
non-performance and, if such failure is curable, Executive has
not cured such failure within a reasonable period following
such notice.
If the Executive's employment is terminated by the Company for Cause,
the termination shall take effect on the effective date (pursuant to
Section 14.10) of written notice of such termination to the Executive.
In the event of the termination of the Period of Employment and the
Executive's employment hereunder due to a termination by the Company
for Cause, then the Executive shall be entitled to receive only those
benefits set forth in Section 7.2.1.
6.2 TERMINATION WITHOUT CAUSE. The Company may, with or without reason,
terminate the Period of Employment and the Executive's employment
hereunder without Cause at any time by providing the Executive written
notice of such termination. If the Executive's employment is terminated
without Cause, the termination shall take effect on the effective date
(pursuant to Section 14.9) of written notice of such termination to the
Executive. If the Executive's employment is terminated without Cause,
he shall be entitled to those benefits as specified in Section 7.1 (a),
(b), (c) and (d).
In the event of the termination of the Period of Employment and the
Executive's employment hereunder due to a termination by the Company
without Cause (other than due to the Executive's death or Disability)
on the consummation of, or within four (4) months prior to or
following, a Change in Control (as such term is defined below), or a
requirement that the Executive relocate outside the state of
California, the Executive shall be entitled to receive:
(a) those benefits set forth in Section 7.1 (a), (b), (c) and (d)
hereof;
(b) a lump sum severance payment equal to twelve (12) times the
Executive's monthly Base Salary in effect immediately prior to
such termination; and
If a Change in Control occurs, or in the event of a diminution of the
Executive's senior management position, responsibilities or
compensation and benefits as Chief Financial Officer or a change in his
reporting responsibility to the CEO, he may, within four months of such
Change in Control or diminution or change in reporting responsibility,
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terminate his employment and be entitled to those benefits specified in
Sections 6.2(a) and (b) above.
For purposes of this Section 6.2, "Change in Control" means any of the
following:
(w) Change in a majority of the Board of Directors members during
any 12-month period.
(x) Approval by the shareholders of the Company of the dissolution
or liquidation of the Company;
(y) Consummation of a merger, consolidation, or other
reorganization, with or into, or the sale of all or
substantially all of the Company's business and/or assets as
an entirety to, one or more entities that are not subsidiaries
or other affiliates of the Company (a "Business Combination"),
unless (1) as a result of the Business Combination more than
70% of the outstanding voting power entitled to vote generally
in the election of directors of the surviving or resulting
entity or a parent thereof (the "Successor Entity")
immediately after the reorganization are, or will be, owned,
directly or indirectly, by holders of the Company's voting
securities outstanding immediately prior to the Business
Combination; and (2) no "person" or "group" [as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended, excluding the Successor Entity or an
Excluded Person (as such term is defined below)] beneficially
owns, directly or indirectly, more than 30% of the outstanding
shares or the combined voting power of the outstanding voting
securities of the Successor Entity, after giving effect to the
Business Combination, except to the extent that such ownership
existed prior to the Business Combination; or
(z) Any "person" or "group"(as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended),
other than an Excluded Person becomes the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended), directly or indirectly, of securities of
the Corporation representing more than 30% of the combined
voting power of the Corporation's then outstanding securities
entitled to then vote generally in the election of directors
of the Corporation, other than as a result of an acquisition
by any employee benefit plan (or related trust) sponsored or
maintained by the Company or a Successor Entity.
"Excluded Person" means (a) any person described in and satisfying the
conditions of Rule 13d-1(b)(1) under the Securities Exchange Act of
1934, as amended, (b) the Company, (c) an employee benefit plan (or
related trust) sponsored or maintained by the Company or the Successor
Entity, or (d) any person who is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
more than 10% of the outstanding shares of Common Stock on the
Effective Date (or any affiliate, successor or related party of or to
any such person).
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7. EXPIRATION OF PERIOD OF EMPLOYMENT.
7.1 BENEFITS UPON EXPIRATION OF PERIOD OF EMPLOYMENT. If the Company elects
not to extend the Period of Employment pursuant to Section 2, unless
the Executive's employment is earlier terminated pursuant to Sections 6
or 7, termination of the Executive's employment hereunder shall be
deemed to occur at the close of business on the day immediately
preceding the next anniversary of the Effective Date which occurs at
least six (6) months after delivery of the non-extension notice in
accordance with Section 2. If the Company elects not to extend the
Period of Employment, upon the Executive's termination in accordance
with the preceding sentence he will be entitled to receive:
(a) those benefits set forth in Section 7.2.1 hereof;
(b) the greater of: (i) those payments due under the Period of
Employment or (ii) a lump sum severance payment equal to
twelve (12) times the Executive's monthly Base Salary in
effect immediately prior to such termination; and
(c) all options exercisable to acquire shares of Company Common
Stock granted to the Executive by the Company during his
employment term will become fully vested.
(d) medical and other insurance coverage benefits will be extended
for a period of twelve (12) months from the termination date
7.2 GENERAL TERMINATION PROVISIONS.
7.2.1 GENERAL TERMINATION BENEFITS. Subject to the other provisions
of this Agreement, in the case of any of the foregoing
terminations or the expiration of the Period of Employment,
the Executive or his estate shall be entitled to (without
duplication of benefits):
(a) any accrued but unpaid Base Salary as of the date of
such termination, including unused vacation;
(b) any earned but unpaid cash incentive compensation as
of the date of such termination;
(c) any reimbursements or allowances due but not yet paid
to the Executive; and
(d) such employee benefits described in Section 5.1 as
the Executive or his estate may be entitled to
hereunder or under the employee benefit plans,
programs and arrangements of the Company.
All amounts due the Executive in accordance with this Section
7.2.1 shall be paid promptly following their becoming due as
provided hereunder.
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7.2.2 OTHER TERMINATION PROVISIONS. In the event of any termination
of employment under this Agreement, the Executive shall be
under no obligation to seek other employment and there shall
be no offset against amounts due the Executive under this
Agreement on account of any remuneration attributable to any
subsequent employment that he may obtain except on account of
any claims the Company may have against the Executive. Any
amounts due under Sections 5, 6, or 7 are in the nature of
severance payments considered to be reasonable by the Company
and are not in the nature of a penalty.
8. MEANS AND EFFECT OF TERMINATION.
Any termination of the Executive's employment under this Agreement
shall be communicated by written notice of termination from the
terminating party to the other party. The notice of termination shall
indicate the specific provision(s) of this Agreement relied upon in
effecting the termination and shall set forth in reasonable detail the
facts and circumstances alleged to provide a basis for termination, if
any such basis is required by the applicable provision(s) of this
Agreement.
9. NON-COMPETITION.
The Executive acknowledges and recognizes the highly competitive nature
of the businesses of the Company Group, the amount of sensitive and
confidential information involved in the discharge of the Executive's
position as Chief Financial Officer of the Company, and the harm to the
Company Group that would result if such knowledge or expertise was
disclosed or made available to a competitor, and accordingly agrees as
follows:
(a) During the Period of Employment and, as a result of the
particular nature of the Executive's relationship with the
Company as its Chief Financial Officer, for the two (2) year
period immediately following the termination of the Period of
Employment, the Executive will not, directly or indirectly,
(i) engage in any business for the Executive's own account
that competes with the business of any entity within the
Company Group, (ii) enter the employ of, or render any
services to, any person engaged in any business that competes
with the business of any entity within the Company Group,
(iii) acquire a financial interest in any person engaged in
any business that competes with the business of any entity
within the Company Group, directly or indirectly, as an
individual, partner, shareholder, officer, director,
principal, agent, trustee or consultant, or (iv) interfere
with business relationships (whether formed before or after
the date of this Agreement) between the Company, any of its
affiliates or subsidiaries, and any customers, suppliers,
officers, employees, partners, members or investors of any
entity within the Company Group.
(b) Notwithstanding anything to the contrary in this Agreement,
the Executive may, directly or indirectly, own, solely as an
investment, securities of any person engaged in the business
of the Company or its affiliates which are publicly traded
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on a national or regional stock exchange or on an
over-the-counter market if the Executive (i) is not a
controlling person of, or a member of a group which controls,
such person and (ii) does not, directly or indirectly, own
five percent (5%) or more of any class of securities of such
person.
For purposes of this Agreement, businesses in competition with the
Company Group shall mean (x) businesses which any entity within the
Company Group has specific plans to conduct in the future and as to
which the Executive is aware of such planning.
10. CONFIDENTIALITY.
The Executive will not at any time (whether during or after his
employment with the Company), other in the course of his duties
hereunder or unless compelled by lawful process, disclose or use for
his own benefit or purposes or the benefit or purposes of any other
person, firm, partnership, joint venture, association, corporation or
other business organization, entity or enterprise other than an entity
then within the Company Group, any trade secrets, or other confidential
data or information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, financing methods, or plans of any entity within the
Company Group; provided that the foregoing shall not apply to
information which is generally known to the industry or the public
other than as a result of the Executive's breach of this covenant. The
Executive agrees that upon termination of his employment with the
Company for any reason, he will return to the Company immediately all
memoranda, books, papers, plans, information, letters and other data,
and all copies thereof or therefrom, in any way relating to the
business of any entity within the Company Group, except that he may
retain personal notes, notebooks and diaries that do not contain
confidential information of the type described in the preceding
sentence. The Executive further agrees that he will not retain or use
for his account at any time any trade names, trademark or other
proprietary business designation used or owned in connection with the
business of any entity within the Company Group.
11. ANTISOLICITATION; NO DISPARAGEMENT.
The Executive promises and agrees that during the Period of Employment
and for a period of two (2) years thereafter:
(a) he will not influence or attempt to influence customers of any
entity within the Company Group (as it may now or in the
future be composed), either directly or indirectly, to divert
their business away from the Company Group to any individual,
partnership, firm, corporation or other entity then in
competition with the business of any entity within the Company
Group; and
(b) he will not make disparaging statements, whether oral or
written, regarding any entity within the Company Group.
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The Company promises and agrees that during the Period of Employment
and for a period of two (2) years thereafter that it will not make
disparaging statements, whether oral or written, regarding Executive.
12. SOLICITING EMPLOYEES.
The Executive promises and agrees that for a period of one year
following termination of his employment he will not directly or
indirectly solicit any person who is then, or at any time within six
months prior thereto was, an employee of an entity within the Company
Group who earned on an annual basis $25,000 or more as an employee of
such entity at any time during the last six months of his or her own
employment to work for any business, individual, partnership, firm,
corporation, or other entity then in competition with the business of
any entity within the Company Group.
13. INDEMNIFICATION.
The Company agrees to indemnify the Executive to the fullest extent
permitted by the law of the jurisdiction in which the Company is
incorporated against claims asserted against him personally arising out
of, or related to, the business of the Company or the Executive's
services for the Company. The Company shall provide officers' liability
insurance coverage to the Executive consistent with the levels of
coverage that it provides generally to its other executive officers
from time to time.
14. GENERAL.
14.1 ASSIGNMENT. This Agreement is personal in its nature and neither of the
parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder;
provided, however, that, in the event of a merger, consolidation, or
transfer or sale of all or substantially all of the assets of the
Company with or to any other individual(s) or entity, this Agreement
shall, subject to the provisions hereof, be binding upon and inure to
the benefit of such successor and such successor shall discharge and
perform all the promises, covenants, duties, and obligations of the
Company hereunder.
14.2 GOVERNING LAW. This Agreement and the legal relations hereby created
between the parties hereto shall be governed by and construed under and
in accordance with the internal laws of the State of California,
without regard to conflicts of laws principles thereof.
The Executive and the Company agree (a) that his or its legal counsel
participated in the preparation of this Agreement and/or he or it has
had ample opportunity to have his or its legal counsel fully examine
this Agreement, and (b) that the rule of construction that ambiguities
are to be resolved against the drafting party shall not be employed in
the interpretation of this Agreement to the favor of either party
hereto against the other.
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14.3. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the
parties hereto respecting the matters within its scope. This Agreement
supersedes all prior agreements of the parties hereto on the subject
matter hereof. Any prior negotiations, correspondence, agreements,
proposals or understandings relating to the subject matter hereof shall
he deemed to be merged into this Agreement and to the extent
inconsistent herewith, such negotiations, correspondence, agreements,
proposals, or understandings shall be deemed to be of no force or
effect. There are no representations, warranties, or agreements,
whether express or implied, or oral or written, with respect to the
subject matter hereof, except as set forth herein.
14.4 MODIFICATIONS. This Agreement shall not be modified by any oral
agreement, either express or implied, and all modifications hereof
shall be in writing and signed by the parties hereto.
14.5 WAIVER. Failure to insist upon strict compliance with any of the terms,
covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment
of, or failure to insist upon strict compliance with, any right or
power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
14.6 NUMBER AND GENDER. Where the context requires, the singular shall
include the plural, the plural shall include the singular, and any
gender shall include all other genders.
14.7 SECTION HEADINGS. The section headings in this Agreement are for the
purpose of convenience only and shall not limit or otherwise affect any
of the terms hereof.
14.8 SEVERABILITY. In the event that a court of competent jurisdiction
determines that any portion of this Agreement is in violation of any
statute or public policy, then only the portions of this Agreement
which violate such statute or public policy shall be stricken, and all
portions of this Agreement which do not violate any statute or public
policy shall continue in full force and effect. Furthermore, any court
order striking any portion of this Agreement shall modify the stricken
terms as narrowly as possible to give as much effect as possible to the
intentions of the parties under this Agreement.
14.9 NOTICES. All notices under this Agreement shall be in writing and shall
be either personally delivered or mailed postage prepaid, by certified
United States mail, return receipt requested:
(a) if to the Company, at the address of the Company's principal
executive offices to the attention of the Chief Executive
Officer; or
(b) if to the Executive, at the address of the Executive's
principal residence as last reflected on the Company's
records.
Either party may change its address set forth above by written notice
given to the other party in accordance with the foregoing. Any notice
shall be effective when personally delivered, or five (5) business days
after being mailed in accordance with the foregoing.
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14.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
14.11 WITHHOLDING TAXES. The Company may withhold from any amounts payable
under this Agreement such federal, state and local income, employment,
or other taxes as may be required to be withheld pursuant to any
applicable law or regulation.
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Employment Agreement as of the date first above written.
THE COMPANY
Xxxxxxxxxx.xxx, Inc.,
a Delaware corporation
By: /s/Xxxxxx X. Xxxx
--------------------------------------
Xxxxxx X. Xxxx
Chief Executive Officer
THE EXECUTIVE
/s/Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxxx
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