EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") by and between MGi2,
Inc., a Delaware corporation (the "Company"), and Xxxxxxxx X. XxXxxxxxx
("Executive") is hereby entered into and effective as of the ____ day of
April, 2000, as follows:
In consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, it is hereby agreed
as follows:
AGREEMENTS
1. SUPERCEDES OTHER EMPLOYMENT AGREEMENTS
This Agreement hereby supersedes any other employment agreements or
understandings, written or oral, between the Company or its subsidiaries and
Executive.
2. EMPLOYMENT AND DUTIES.
(a) The Company hereby employs Executive as President of the
Company. As such, Executive shall have responsibilities, duties and authority
reasonably accorded to, expected of and consistent with Executive's position
as President of the Company and will report directly to the Board of
Directors of the Company (the "Board"). Executive hereby accepts this
employment upon the terms and conditions herein contained and, subject to
paragraph 2(c), agrees to devote substantially all of his business-related
time, attention and efforts to promote and further the business and interests
of the Company and its affiliates.
(b) Executive shall faithfully adhere to all lawful policies
established by the Company.
(c) Executive shall not, during the term of his employment
hereunder, be engaged in any other business activity pursued for gain, profit
or other pecuniary advantage if such activity interferes in any material
respect with Executive's duties and responsibilities hereunder. The foregoing
limitations shall not be construed as prohibiting Executive from (i) making
personal investments in such form or manner as will neither require his
services in the operation or affairs of the companies or enterprises in which
such investments are made; (ii) participating in professional development
activities; or (iii) acting as a director of other corporations provided such
representation does not adversely impact the Executive's duties hereunder.
(d) Executive cannot be required by the Company to relocate unless
the Executive consents to such relocation. The Executive's refusal to
relocate shall not be considered "cause" for termination. Furthermore,
Executive shall not be required to commute to another location or travel
extensively in lieu of relocation.
3. COMPENSATION. For all services rendered by Executive, the Company
shall compensate Executive beginning upon the consummation of the initial
public offering of the common stock of the Company (the "IPO") as follows:
(a) BASE SALARY. The base salary payable to Executive shall be
$175,000.00 per year commencing upon the consummation of the IPO, and payable
on a regular basis in accordance with the Company's standard payroll
procedures but not less than monthly. Such base salary may be increased (but
not decreased) from time to time, at the discretion of the Board, in light of
Executive's annual review, position, responsibilities and performance.
(b) BONUS. Executive shall receive an annual bonus to be determined
by the Board.
(c) EXECUTIVE PERQUISITES, BENEFITS AND OTHER COMPENSATION.
Executive shall be entitled to receive additional benefits and compensation
from the Company in such form and to such extent as specified below:
(i) Payment of all premiums for coverage for Executive and his
dependent family members under health, hospitalization, disability,
dental, life and other insurance plans that the Company may have in
effect from time to time (all in an amount not less than such benefits
provided to other Company executives).
(ii) Reimbursement for all business travel and other
out-of-pocket expenses and professional dues and fees reasonably
incurred by Executive in the performance of his services pursuant to
this Agreement. All reimbursable expenses shall be appropriately
documented in reasonable detail by Executive upon submission of any
request for reimbursement, and in a format and manner consistent with
the Company's expense reporting policy.
(iii) Other executive perquisites as may be available to or
deemed appropriate for Executive by the Board and Executive shall be
eligible for participation in all other Company-wide employee benefits
as are available from time to time.
(iv) Reimbursement for all operating costs associated with one
automobile including, without limitation, repairs, maintenance and
insurance.
(v) Payment of all premiums for a disability policy in favor
of Executive having substantially the same terms as the disability
policy benefitting the Executive and existing as of the date hereof.
(vi) Three weeks paid vacation per year.
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(d) Notwithstanding anything contained herein to the contrary, at no
time shall the amount of Base Salary plus the Bonus for any one year paid or
payable to the Executive exceed the sum of $500,000.
4. TERM; TERMINATION; RIGHTS ON TERMINATION. (a) The term of this
Agreement shall begin on the consummation of the IPO and continue for three
(3) years (the "Term"), and, unless terminated sooner as herein provided,
shall continue thereafter on a year-to-year basis ("Renewal Period") on the
same terms and conditions contained herein in effect as of the time of
renewal. This Agreement and Executive's employment may be terminated in any
one of the followings ways:
(i) DEATH. The death of Executive shall immediately terminate this
Agreement with no severance compensation due to Executive's estate.
(ii) DISABILITY. If, as a result of incapacity due to physical or
mental illness or injury, Executive shall have been absent from his full-time
duties hereunder for four (4) consecutive months, then thirty (30) days after
receiving written notice (which notice may occur before or after the end of
such four (4) month period, but which shall not be effective earlier than the
last day of such four (4) month period), the Company may terminate
Executive's employment hereunder, provided that Executive is unable to resume
his full-time duties at the conclusion of such notice period. Also, Executive
may terminate his employment hereunder if his health should become impaired
to an extent that makes the continued performance of his duties hereunder
hazardous to his physical or mental health or his life, provided that
Executive shall have furnished the Company with a written statement from a
qualified doctor to such effect and provided, further, that, at the Company's
request made within thirty (30) days of the date of such written statement,
Executive shall submit to an examination by a doctor selected by the Company
who is reasonably acceptable to Executive or Executive's doctor and such
doctor shall have concurred in the conclusion of Executive's doctor. In the
event this Agreement is terminated as a result of Executive's disability,
Executive shall receive from the Company, in a lump-sum payment due within
ten (10) days of the effective date of termination, the base salary at the
rate then in effect for whatever time period is remaining under the Initial
Term (as hereinafter defined) of this Agreement, provided that such period
shall not exceed one (1) year.
(iii) GOOD CAUSE. The Company may terminate the Agreement thirty
(30) days after written notice to Executive for good cause, which shall be:
(i) Executive's breach of any material provision of this Agreement
(continuing for ten (10) days after receipt of written notice of need to
cure); (ii) Executive's gross negligence in the performance or intentional
nonperformance (continuing for ten (10) days after receipt of written notice
of need to cure) of any of Executive's material duties and responsibilities
hereunder which is harmful or injurious to the Company; (iii) Executive's
dishonesty, fraud or misconduct with respect to the business or affairs of
the Company or its subsidiaries which materially and adversely affects the
operations or reputation of the Company or its subsidiaries; (iv) Executive's
conviction of a felony crime; or (v) alcohol abuse
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or a confirmed positive illegal drug test result. In the event of a
termination for good cause, as enumerated above, Executive shall have no
right to any severance compensation but shall receive all compensation due
and payable through the date of termination.
(iv) WITHOUT CAUSE. At any time after the commencement of
employment, Executive may, without cause, and without Good Reason terminate
this Agreement and Executive's employment, effective thirty (30) days after
written notice is provided to the Company. Should Executive be terminated by
the Company without cause or should Executive terminate with Good Reason
during the Term, Executive shall receive from the Company, in a lump-sum
payment due on the effective date of termination, the base salary at the rate
then in effect for whatever time period is remaining under the Initial Term
of this Agreement or for one (1) year, whichever amount is greater. If
Executive resigns or otherwise terminates his employment without cause,
rather than the Company terminating his employment pursuant to this paragraph
4(a)(iv), or if Executive terminates without Good Reason, Executive shall
receive no severance compensation.
Executive shall have "Good Reason" to terminate this Agreement and
his employment hereunder upon the occurrence of any of the following events:
(a) Executive experiences a significant reduction in authority,
responsibilities or duties to a position of less stature or importance within
the Company than the position described in paragraph 1 hereof (b) a material
breach of this Agreement by the Company that is not due to the act or actions
of the Executive and which continues for thirty (30) days after receipt of
written notice of breach is received by the Company from the Employee or (c)
Executive is required to support (by action or silence) conduct which
constitutes dishonesty, fraud or willful misconduct with respect to the
business or affairs of the Company or its subsidiaries which is not due to
the act or actions of the Executive.
(v) END OF TERM OR RENEWAL PERIOD. This Agreement and the Employee's
employment may be terminated as of the end of the Term or any Renewal Period
upon thirty (30) days written notice by the Company or the Executive to the
other party prior to the end of the Term or any Renewal Period. If this
Agreement is terminated as of the end of the Term or any Renewal Period,
Executive shall receive no severance compensation but shall be entitled to
receive all compensation due and payable through the date of termination.
Upon termination of this Agreement for any reason provided above,
Executive shall be entitled to receive all compensation earned and/or accrued
and all benefits and reimbursements due and/or accrued through the effective
date of termination. Additional compensation subsequent to termination, if
any, will be due and payable to Executive only to the extent and in the
manner expressly provided above or in paragraph 11. All other rights and
obligations of the Company and Executive under this Agreement shall cease as
of the effective date of termination, except that the Executive's obligations
under paragraphs 5, 6, 7 and 8 herein and the Company's obligations with
respect to stock grants, stock options, and severance shall survive such
termination in accordance with their terms.
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(b) CHANGE IN CONTROL OF THE COMPANY. In the event of a "Change in
Control" of the Company (as defined below) during the Term or any extension
or renewal thereof, refer to paragraph 11 below.
(c) TREATMENT OF STOCK OPTIONS AND STOCK OPTION GRANTS. Any unvested
portion of any awards of stock options or stock grants pursuant to this
Agreement in connection with Executive's employment shall be treated in the
following manner in the event of a termination of Executive's employment.
(i) If Executive's employment is terminated by the Company for
cause or if Executive resigns or terminates his employment other than
for Good Reason, then any unvested portion of any awards of stock
options or stock grants shall lapse or shall be forfeited.
(ii) If Executive's employment is terminated by the Company
without cause or if Executive terminates his employment for Good
Reason, then any unvested portion of any awards of stock options or
stock grants shall immediately vest to their fullest extent
(notwithstanding any vesting provisions to the contrary) and Executive
shall be entitled to all rights and privileges associated with such
awards (subject to applicable securities laws and regulations and terms
of any applicable stock option agreements).
(iii) If Executive's employment is terminated pursuant to a
"Change in Control," then the stock options and stock awards shall be
treated in the manner provided in paragraph 11 hereof.
5. RETURN OF COMPANY PROPERTY. All records, designs, patents,
business plans, financial statements, manuals, memoranda, lists and other
property delivered to or compiled by Executive by or on behalf of the
Company, its subsidiaries or their representatives, vendors or customers
which pertain to the business of the Company or its subsidiaries shall be and
remain the property of the Company or its subsidiaries, as the case may be,
and be subject at all times to their discretion and control. Likewise, all
correspondence, reports, records, charts, advertising materials and other
similar data pertaining to the business, activities or future plans of the
Company or its subsidiaries which is collected by Executive shall be
delivered promptly to the Company without request by it upon termination of
Executive's employment.
6. INVENTIONS. Executive shall disclose promptly to the Company any
and all significant conceptions and ideas for inventions, improvements and
valuable discoveries, whether patentable or not, which are conceived or made
by Executive, solely or jointly with another, during the period of
employment, and which are directly related to the business or activities of
the Company and which Executive conceives as a result of his employment by
the Company. Executive hereby assigns and agrees to assign all his interests
therein to the Company or its nominee. Whenever
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requested to do so by the Company, Executive shall execute any and all
applications, assignments or other instruments that the Company shall deem
necessary to apply for and obtain Letters Patent of the United States or any
foreign country or to otherwise protect the Company's interest therein.
7. TRADE SECRETS. Executive agrees that he will not, during or after
the Term of this Agreement with the Company, disclose the specific terms of
the Company's or its subsidiaries' relationships or agreements with their
respective significant vendors or customers or any other significant and
material trade secret of the Company or its subsidiaries, whether in
existence or proposed, to any person, firm, partnership, corporation or
business for any reason or purpose whatsoever, except in connection with (a)
any legal proceeding of the Company in which such disclosure is required to
be made by the Company (b) obtaining the advice of outside consultants
engaged by the Company (c) discussions with the Company's outside auditors
(d) obtaining or maintenance of the Company's credit facility or (e)
otherwise with the consent of the Company's Board of Directors.
8. CONFIDENTIALITY.
(a) Executive acknowledges and agrees that all Confidential
Information (as defined below) of the Company is confidential and a valuable,
special and unique asset of the Company that gives the Company an advantage
over its actual and potential, current and future competitors. Executive
further acknowledges and agrees that Executive owes the Company a fiduciary
duty to preserve and protect all Confidential Information from unauthorized
disclosure or unauthorized use, that certain Confidential Information
constitutes "trade secrets" under applicable laws, and that unauthorized
disclosure or unauthorized use of the Company's Confidential Information
would irreparably injure the Company.
(b) Both during the term of Executive's employment and after the
termination of Executive's employment for any reason (including wrongful
termination), Executive shall hold all Confidential Information in strict
confidence, and shall not use any Confidential Information except for the
benefit of the Company, in accordance with the duties assigned to Executive.
Executive shall not, at any time (either during or after the term of
Executive's employment), disclose any Confidential Information to any person
or entity (except other employees of the Company who have a need to know the
information in connection with the performance of their employment duties),
or copy, reproduce, modify, decompile or reverse engineer any Confidential
Information, or remove any Confidential Information from the Company's
premises, without the prior written consent of the board of directors of the
Company or a committee thereof comprised of a majority of nonemployee
directors, or permit any other person to do so. In the event Executive is
requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or other
process) to disclose any Confidential Information, Executive will provide the
Company with immediate written notice of any such request or requirement so
that the Company may seek an appropriate protective order, seek with
Executive's cooperation to narrow the request
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or demand or waive Executive's compliance with the provisions of this
Agreement. If, failing the entry of a protective order or the receipt of a
waiver hereunder, Executive is, in the opinion of his counsel, compelled to
disclose Confidential Information, Executive may disclose only that portion
of the Confidential Information which Executive's counsel advises Executive
in writing that Executive is compelled to disclose and Executive will
exercise his or her best efforts to obtain assurance that confidential
treatment will be accorded such Confidential Information. In any event,
Executive will not oppose action by the Company to obtain an appropriate
protective order or other reliable assurance that confidential treatment will
be accorded the Confidential Information. Executive shall take reasonable
precautions to protect the physical security of all documents and other
material containing Confidential Information (regardless of the medium on
which the Confidential Information is stored). This Agreement applies to all
Confidential Information, whether now known or later to become known to
Executive.
(c) Upon the termination of Executive's employment with the Company
for any reason, and upon request of the Company at any other time, Executive
shall promptly surrender and deliver to the Company all documents and other
written material of any nature containing or pertaining to any Confidential
Information and shall not retain any such document or other material. Within
five days of any such request, Executive shall certify to the Company in
writing that all such materials have been returned.
(d) As used in this Agreement, the term "Confidential Information"
shall mean any information or material known to or used by or for the Company
(whether or not owned or developed by the Company and whether or not
developed by Executive) that is not generally known to the public.
Confidential information includes, but is not limited to, the following: all
trade secrets of the Company; all information that the Company has marked as
confidential or has otherwise described to Executive (either in writing or
orally) as confidential; all nonpublic information concerning the Company's
products, services, prospective products or services, research, product
designs, prices, discounts, costs, marketing plans, marketing techniques,
market studies, test data, customers, customer lists and records, suppliers
and contracts; all Company business records and plans; all Company personnel
files; all financial information of or concerning the Company; all
information relating to operating system software, application software,
software and system methodology, hardware platforms, technical information,
inventions, computer programs and listings, source codes, object codes,
copyrights and other intellectual property; all technical specifications; any
proprietary information belonging to the Company; all computer hardware or
software manual; all training or instruction manuals; and all data and all
computer system passwords and user codes.
9. NO PRIOR AGREEMENTS. Executive hereby represents and warrants to
the Company that the execution of this Agreement by Executive and his
employment by the Company and the performance of his duties hereunder will
not violate or be a breach of any agreement with a former employer, client or
any other person or entity. Further, Executive agrees to indemnify the Company
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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
Executive and such third party which was in existence as of the date of this
Agreement.
10. ASSIGNMENT; BINDING EFFECT. Executive understands that he has
been selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Executive agrees, therefore, that he
cannot assign all or any portion of his performance under this Agreement.
Subject to the preceding two (2) sentences and the express provisions of
paragraph 11 below, 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. CHANGE IN CONTROL.
(a) Unless he elects to terminate this Agreement pursuant to
subsections b, c or d below, Executive understands and acknowledges that the
Company may be merged or consolidated with or into another entity and that
such entity shall automatically succeed to the rights and obligations of the
Company hereunder or that the Company may undergo another type of Change in
Control. In the event such a merger or consolidation or other Change in
Control (as defined herein) is initiated prior to the end of the Term or any
extension or renewal thereof, then the provisions of this paragraph 11 shall
be applicable.
(b) In the event of a Change in Control wherein the Company and
Executive have not received written notice at least five (5) business days
prior to the date of the event giving rise to the Change in Control from the
successor to all or a substantial portion of the Company's business and/or
assets that such successor is willing as of the closing to assume and agrees
to perform the Company's obligations under this Agreement in the same manner
and to the same extent that the Company is hereby required to perform, then
Executive may, at Executive's sole discretion, elect to terminate Executive's
employment on such Change in Control by providing written notice to the
Company prior to the closing of the transaction giving rise to the Change in
Control. In such case, the applicable provisions of paragraph 4(a)(iv) will
apply as though the Company had terminated Executive without cause during the
Initial Term; however, the amount of the lump sum severance payment due
Executive pursuant to this paragraph 11(b) shall be the amount calculated
under the terms of paragraph 4(a)(iv).
(c) In any Change in Control situation, Executive may, at
Executive's sole discretion, elect to terminate Executive's employment upon
the effective date of such Change in Control by providing written notice to
the Company at least ten (10) business days prior to the closing of the
transaction (or ten (10) business days after receipt of notice of such
transaction, whichever is later) giving rise to the Change in Control. In
such case, the applicable provisions of paragraph 4(a)(iv)
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will apply as though the Company had terminated Executive without cause
during the Initial Term; however, the amount of the lump sum severance
payment due Executive pursuant to this paragraph 11(c) shall be the amount
calculated under the terms of paragraph 4(a)(iv).
(d) If, on or within one year following the effective date of a
Change in Control the Company terminates Executive's employment other than
for cause or if Executive's employment with the Company is terminated by the
Company within three months before the effective date of a Change in Control
other than for cause and it is reasonably demonstrated that such termination
(i) was at the request of a third party that has taken steps reasonably
calculated to effect a Change in Control, or (ii) otherwise arose in
connection with or anticipation of a Change in Control, then Executive shall
receive from Company, in a lump sum payment due on the effective date of
termination, the same amount which Executive would have received pursuant to
a termination under paragraph 4(a)(iv).
(e) Solely for purposes of applying paragraph 4 under the
circumstances described in (b) above, the effective date of termination will
be the closing date of the transaction giving rise to the Change in Control
and all compensation, reimbursements and lump-sum payments due Executive must
be paid in full by the Company at or prior to such closing.
(f) A "Change in Control" shall be deemed to have occurred if:
(i) after the IPO, any person, other than the Company or
benefit plan of the Company, acquires, directly or indirectly, the
beneficial ownership (as defined in Section 13(d) of the Securities
Exchange Act of 1934, as amended) of any voting security of the Company
and immediately after such acquisition such person is, directly or
indirectly, the beneficial owner of voting securities representing
forty (40%) or more of the total voting power of all of the
then-outstanding voting securities of the Company;
(ii) the stockholders of the Company shall approve a merger,
consolidation, recapitalization or reorganization of the Company, or
consummation of any such transaction if stockholder approval is not
obtained, other than any such transaction which would result in at
least fifty-one percent (51%) of the total voting power represented by
the voting securities of the surviving entity outstanding immediately
after such transaction being beneficially owned by at least fifty-one
percent (51%) of the holders of outstanding voting securities of the
Company immediately prior to the transactions with the voting power of
each such continuing holder relative to other such continuing holders
not substantially altered in the transaction; or
(iii) the stockholders of the Company shall approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or a
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substantial portion of the Company's assets (i.e., fifty (50%) or more
of the total assets of the Company).
(g) Executive shall be fully "grossed up" by the Company or its
successor for any excise taxes that Executive incurs under Section 4999 of
the Internal Revenue Code of 1986 (as well as for income tax on the "gross
up" amount, as a result of any Change in Control. Such amount will be due and
payable by the Company on the date of the Change of Control.
(h) Upon the occurrence of a Change of Control, any unvested portion
of any awards of stock options or stock grants pursuant to this Agreement or
otherwise shall immediately vest and become exercisable to their fullest
extent (notwithstanding any vesting periods specified elsewhere) and
Executive shall be entitled to all rights and privileges associated with such
awards (subject to applicable securities laws and regulations). With respect
to option awards which vest pursuant to this paragraph, Executive shall have
a period of not less than twelve (12) months from the date of vesting in
which to exercise such options.
12. COMPLETE AGREEMENT. This Agreement is not a promise of future
employment. Executive 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 Executive 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
Executive, and no term of this Agreement may be waived except by a 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: c/o MGi2, Inc.
0000 Xxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
To Executive: Xxxxxxxx X. XxXxxxxxx
00000 Xx. Xxxx'x Xxxx
Xxxxxxx, Xxxxx 00000
Notice shall be deemed given and effective on the earlier of 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,
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or when actually received. Either party may change the address for notice by
notifying the other party of such change in accordance with this paragraph 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 the Agreement or of any part hereof.
15. ARBITRATION. With the exception of paragraphs 7 and 8, any
unresolved dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a
panel of three (3) arbitrators in Houston, Texas, in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association ("AAA") then in effect, provided that the parties may
agree to use arbitrators other than those provided by the AAA. The
arbitrators shall not have the authority to add to, detract from or modify
any provision hereof nor to award punitive damages to any injured party. The
arbitrators shall have the authority to order back pay, severance
compensation, vesting of options and grants (or cash compensation in lieu of
vesting of options), reimbursement of legal fees and costs, including those
incurred to enforce this Agreement, and interest thereon in the event the
arbitrators determine that Executive was terminated without disability or
good cause, as described in paragraphs 4(a)(ii) and 4(a)(iii), respectively,
or that the Company has otherwise materially breached this Agreement. A
decision by a majority of the arbitration panel shall be final and binding.
Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The direct expense of any arbitration proceeding shall be borne
by the Company.
16. GOVERNING LAW. This Agreement shall in all respects be construed
according to the laws of the State of Texas.
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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"EXECUTIVE"
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XXXXXXXX X. XxXXXXXXX
"COMPANY"
MGi2, INC.
By:
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Name:
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Title:
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