EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as of
February 16, 2001 by and between CCC GlobalCom, Corporation, a Nevada
corporation (the "Company"), and Xx. Xxxx X. Xxxxxxx, an individual currently
residing in Katy,, Texas ("Employee").
WHEREAS, the Board of Directors of the Company (the "Board") has made
Employee an offer of employment to serve as Chief Operating Officer and Chief
Financial Officer of the Company, on terms and conditions and for the
consideration hereinafter set forth;
WHEREAS, Employee has accepted the Board's offer of employment as Chief
Operating Offifer and Chief Financial Officer ; and
WHEREAS, the parties wish to memorialize the terms and conditions of
Employee's employment;
NOW, THEREFORE, for and in consideration of the premises and the
respective covenants and agreements of the parties herein contained, the Company
and Employee hereby agree as follows:
ARTICLE 1
EMPLOYMENT
The Company hereby agrees to employ Employee, and Employee hereby agrees
to serve the Company, on the terms and conditions set forth herein.
ARTICLE 2
TERM
The term of this Agreement shall commence as of February 16, 2001
(the"Effective Date") and shall continue through February 16,2003 (the "Term"),
unless sooner terminated as hereinafter provided. "The Employment Period" shall
mean the period commencing on the date hereof and ending on the second
anniversary of the date hereof; provided, however, that commencing on the date
one year after the date hereof, and on each annual anniversary of such date
(such deate and each annual anniversary thereof shall be hereinafter referred to
as the "Renuewal Date"), unless previously terminated, the "Employment Period"
shall be automatically extended so as to terminate two year(s) after such
Renewal Date, unless at least sixty (60) days prior to the Renewal Date the
Company shall give notice to the Employee that the "Employment Period" shall not
be so extended.
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ARTICLE 3
POSITION AND DUTIES
3.1 Employee shall be employed as Chief Operating Officer and Chief
Financial Officer. Employee shall have such responsibilities, duties and
authority reasonably accorded to and expected of a Chief Operating Officer and
Chief Financial Officer and as may from time to time be prescribed by the Board
or pursuant to the Company's bylaws. The parties expressly agree that the Board
is under no obligation to reelect Employee as Chief Operating Officer and Chief
Financial Officer at any time in the future. Employee agrees to resign as Chief
Operating Officer and Chief Financial Officer, , at any time after the date
hereof, if requested to do so by a majority of the members of the Board. The
provisions of Section 6 (a) of this Agreement shall apply with respect to any
such resignation, unless such resignation is for Cause.
3.2 During the Term, and excluding any periods of vacation and sick leave
to which Employee is entitled, Employee shall devote such time and efforts to
the business and affairs of the Company as shall be necessary for him to
discharge the duties and responsibilities assigned to Employee. During the
Employment Period it shall not be a violation of this Agreement for Employee to
(A) serve on corporate, civic or charitable boards or committees, (B) deliver
lectures, fulfill speaking engagements or teach at educational institutions and
(C) manage personal investments, so long as such activities do not significantly
interfere with the performance of Employee' responsibilities as an employee of
the Company in accordance with this Agreement.
ARTICLE 4
COMPENSATION AND RELATED MATTERS
4.1 SIGN-ON BENEFITS.
(a) As a means to facilitate and aid the future growth of the
Company, Employee will receive on the effective date of a "Change of
Control" as defined in Section 8.1 an option to purchase 500,000 shares of
the merged Company's Common Stock at the current fair market value at the
time of issuanace. The option will vest 20 percent per year, beginning one
year after the grant date and will be exercisable as provided by the
Option Agreement for ten years after the grant date.
4.2 SALARY. The Company shall pay to Employee an annual base salary of
$140,000, or such higher rate as may from time to time be determined in the sole
discretion of the Board, provided that the Compensation and Stock Plans
Committee of the Board (the "Compensation Committee") and the Board shall review
Employee' base salary on an annual basis. Employee' base salary shall be paid in
substantially equal semi-monthly installments.
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4.3 INCENTIVE COMPENSATION.
(a) Employee shall be eligible to receive an annual bonus, in cash,
stock, or a combination of both, as determined from time to time based
upon agreed upon objectives and achievements as set forth by the Board of
Directors.
4.4 BENEFITS.
(a) Employee shall be eligible to participate in the Company's
401(k) Savings Plan and the Company's Supplemental Savings Plan, as, and
to the extent such plans are, in effect from time to time during the Term.
(b) Employee and Employee' eligible dependents shall be entitled to
participate and shall receive all benefits under the Company's welfare
benefit plans, including, without limitation, medical, prescription,
dental, disability, salary continuance, group life, accidental death and
travel accident insurance plans and programs, as, and to the extent such
plans and programs are, in effect from time to time during the Term,
provided that Employee shall pay any premiums or other amounts required to
be paid for such benefits.
4.5 VACATION. Employee shall be entitled to twenty days paid vacation
during each year of the Term. Employee shall also be entitled to all paid
holidays and personal time given by the Company to its employees.
4.6 CAR ALLOWANCE. The Company shall pay Employee a car allowance of $600
per month or such other rate as may from time to time be determined in the sole
discretion of the Board.
ARTICLE 5
TERMINATION OF EMPLOYMENT
5. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. Employee' employment shall terminate
automatically upon Employee' death during the Term. If the Company
determines in good faith that the Disability of Employee has occurred
during the Term (pursuant to the definition of Disability set forth
below), it may give to Employee written notice in accordance with Section
8.4 of this Agreement of its intention to terminate Employee' employment.
In such event, Employee' employment with the Company shall terminate
effective 30 days after receipt of such notice by
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Employee (the "Disability Effective Date"), provided that within the
30-day period after such receipt, Employee shall not have returned to
full-time performance of Employee' duties. For purposes of this Agreement,
"Disability" shall mean the absence of Employee from Employee' duties with
the Company on a full-time basis for 180 calendar days as a result of
incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers
and acceptable to Employee or Employee' legal representative.
(b) CAUSE. The Company may terminate Employee' employment during the
Term for Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the material willful misconduct or gross negligence of
Employee in the performance of his duties to the Company and its
affiliates (other than any such misconduct or negligence resulting from
his incapacity due to physical or mental illness), in either such
instances so as to cause substantial financial harm to the Company or one
or more of its affiliates;
(ii) the commission by Employee of fraud,
misappropriation or embezzlement in the performance of his duties
hereunder; or
(iii) the conviction of Employee of a felony that has a
substantial adverse effect on the Company or one or more of its
affiliates.
All conclusions and determinations required for purposes of determining
"Cause" under this provision shall be made by the Board in good faith
after the Board gives Employee written notice of the alleged act or
failure constituting Cause for termination and after Employee is given an
opportunity, together with counsel, to be heard by the Board.
(c) GOOD REASON. Employee' employment may be terminated by Employee
during the Term for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean:
(i) the assignment to Employee of any duties inconsistent in
any respect with Employee' position as Chief Operating Officer and Chief
Financial Officer or his authority, duties or responsibilities hereunder,
or any other action by the Company which results in a diminution in such
position, authority, duties or responsibilities, excluding for this
purpose an isolated, insubstantial and inadvertent action not taken in bad
faith and which is remedied by the Company promptly after receipt of
notice thereof given by Employee; or
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o any purported termination by the Company of
Employee' employment otherwise than as
expressly permitted by this Agreement.
o the requirement by the Company that the Employee
perform the duties of his position at an office
located more than 100 miles from the Company's
existing office.
(d) NOTICE OF TERMINATION. Any termination during the Term by the Company
for Cause, or by Employee for Good Reason, shall be communicated by Notice
of Termination to the other party hereto given in accordance with Section
8.4 hereof. For purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent applicable,
sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Employee' employment under the
provision so indicated and (iii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice, specifies the
termination date (which date shall be not more than 30 days after the
giving of such notice). The failure by Employee or the Company to set
forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right
of Employee or the Company, respectively, from asserting such fact or
circumstance in enforcing Employee' or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" shall mean:
(i) if Employee' employment is terminated by the Company for
Cause, or by Employee for Good Reason, the date of receipt of the Notice
of Termination or any later date specified therein, as the case may be;
(ii) if Employee' employment is terminated by the Company
other than for Cause, death or Disability, the Date of Termination shall
be the date on which the Company notifies Employee of such termination;
and
(iii) if Employee' employment is terminated by reason of death
or Disability, the Date of Termination shall be the date of death of
Employee or the Disability Effective Date, as the case may be.
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ARTICLE 6
COMPANY'S OBLIGATION UPON TERMINATION
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) GOOD REASON; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If,
during the Term, the Company shall terminate Employee' employment other
than for Cause, death or Disability, or Employee shall terminate
employment for Good Reason:
(i) The Company shall pay to Employee in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the
following amounts:
A. the sum of (1) Employee' Annual Base Salary
through the Date of Termination to the extent not theretofore
paid and (2) any compensation previously deferred by Employee
(together with any accrued interest or earnings thereon) and
any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the amounts described in clauses
(1) and (2) shall be hereinafter referred to as the "Accrued
Obligations"), and
B. the amount equal to the product of (1) two
times (2) the sum of (x) Employee' annual base salary and (y)
bonus paid to Employee for the prior fiscal year.
(ii) For two years after Employee' Date of Termination, the
Company shall continue benefits to Employee and/or Employee' family equal
to those which would have been provided to them in accordance with the
Company's employee welfare benefits plan (except for disability plans) as
if Employee' employment had not been terminated; provided, however, that
with respect to any of such plans requiring an employee contribution,
Employee shall continue to pay the monthly employee contribution for same,
and provided further, that if Employee becomes reemployed by another
employer and is eligible to receive medical or other welfare benefits
under another employer-provided plan, the medical and other welfare
benefits described herein shall be secondary to those provided under such
other plan during such applicable period of eligibility;
(iii) For two years after Employee' Date of Termination, the
Company shall provide Employee with life insurance as if his employment
has not been terminated;
(iv) With respect to all options to purchase Common Stock held
by Employee on or prior to the Date of Termination, , said options will
become 100% vested and the term of the option agreement will remain in
place as if Employee' employment had not been terminated.
(v) The Company shall pay Employee a lump sum in cash within 30 days after
Employee' Date of Termination equal to two times Employee' annual car allowance;
and
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(vi) To the extent not theretofore paid or provided, the
Company shall timely pay or provide to Employee any other amounts or
benefits required to be paid or provided or which Employee is eligible to
receive under any plan, program, policy or practice or contract or
agreement of the Company and its affiliated companies (such other amounts
and benefits shall be hereinafter referred to as the "Other Benefits").
(b) DEATH. If Employee' employment is terminated by reason of
Employee' death during the Term, this Agreement shall terminate without
further obligations to Employee' legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely
payment or provision of Other Benefits. Accrued Obligations shall be paid
to Employee' estate or beneficiaries, as applicable, in a lump sum in cash
within 30 days after the Date of Termination. With respect to the
provision of Other Benefits, the term Other Benefits as utilized in this
Section 6(b) shall include, without limitation, and Employee' estate
and/or beneficiaries shall be entitled to receive, benefits at least equal
to the most favorable benefits provided by the Company and affiliated
companies to the estates and beneficiaries of Employee' peer executives of
the Company and such affiliated companies under such plans, programs,
practices and policies relating to death benefits, if any, in effect
immediately preceding the Date of Termination.
(c) DISABILITY. If Employee' employment is terminated by reason of
Employee' Disability during the Term, this Agreement shall terminate
without further obligations to Employee, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to Employee in a lump sum in cash within 30 days
after the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 6(c) shall
include, without limitation, and Employee shall be entitled after the
Disability Effective Date to receive, disability and other benefits at
least equal to the most favorable benefits generally provided by the
Company and its affiliated companies to Employee' disabled peer executives
and/or their families in accordance with such plans, programs, practices
and policies relating to disability, if any, in effect generally on the
Date of Termination.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If Employee' employment is
terminated for Cause during the Term, this Agreement shall terminate
without further obligations to Employee, other than the obligation to pay
to Employee (x) his annual base salary through the Date of Termination,
(y) the amount of any compensation previously deferred by Employee, and
(z) Other Benefits, in each case to the extent theretofore unpaid. If
Employee voluntarily terminates employment during the Term, excluding a
termination for Good
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Reason, this Agreement shall terminate without further obligations to
Employee, other than for Accrued Obligations and the timely payment or
provision of Other Benefits. In such case, all Accrued Obligations shall
be paid to Employee in a lump sum in cash within 30 days after the Date of
Termination.
ARTICLE 7
NON-COMPETITION OBLIGATIONS
7.1 As part of the consideration for the compensation and benefits to be
paid to Employee hereunder, in keeping with Employee' duties as a fiduciary and
in order to protect Employee' interests in the confidential information of the
Company and the business relationships developed by Employee with the clients
and potential clients of the Company, and as an additional incentive for the
Company to enter into this Agreement, the Company and Employee agree to the
non-competition provisions of this Article 7. Employee agrees that during the
period of Employee' non-competition obligations hereunder, Employee will not,
directly or indirectly for Employee or for others, in any geographic area or
market where the Company or any of its affiliates are conducting any business as
of the Date of Termination or have during the previous 12 months conducted any
business:
(a) engage in any business competitive with the business conducted by the
Company or its affiliates;
(b) render advice or services to, or otherwise assist, any other
person, association or entity who is engaged, directly or indirectly, in
any business competitive with the business conducted by the Company or its
affiliates;
(c) induce any employee of the Company or any of its affiliates to
terminate his or her employment with the Company or its affiliates, or
solicit the employment of any such employee by person, association or
entity not affiliated with the Company. These non-competition obligations
shall extend until the latter of (i) the expiration of the Term and (ii)
one year after termination of the employment relationship.
7.2 Employee understands that the foregoing restrictions may limit his
ability to engage in certain businesses anywhere in the world during the period
provided for above, but acknowledges that Employee will receive sufficiently
high remuneration and other benefits (e.g., the right to receive compensation
under Article 6 for the remainder of the Term in certain circumstances) under
this Agreement to justify such restrictions. Employee acknowledges that money
damages would not be sufficient remedy for any breach of this Article 7 by
Employee, and the Company shall be entitled to enforce the provisions of this
Article 7 by terminating any payments then owing to Employee under this
Agreement and/or to specific performance and injunctive relief as remedies for
such breach or any threatened breach. Such remedies shall not be deemed the
exclusive remedies for a breach of this Article 7, but shall be in addition to
all remedies available at
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law or in equity to the Company, including, without limitation, the recovery of
damages from Employee or his or her agents involved in such breach.
7.3 It is expressly understood and agreed that the Company and Employee
consider the restrictions contained in this Article 7 to be reasonable and
necessary to protect the proprietary information of the Company. Nevertheless,
if any of the aforesaid restrictions are found by a court having jurisdiction to
be unreasonable, or overly broad as to geographic area or time, or otherwise
unenforceable, the parties intend for the restrictions therein set forth to be
modified by such court so as to be reasonable and enforceable and, as so
modified by the court, to be enforced.
ARTICLE 8
MISCELLANEOUS
8.1 "Change of Control" shall mean:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 20 percent or more of either (i) the then outstanding shares of
common stock of the Company (the "Outstanding Company Common Stock") or
(ii) the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"); provided, however that for
purposes of this subsection (a), the following acquisitions shall not
constitute a Change of Control:
(A) any acquisition directly from the Company,
(B) any acquisition by the Company,
(C) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company, or
(D) any acquisition by any corporation pursuant to
a transaction which complies with clauses (A), (B) and (C) of
subsection (a) of this Section 8.1; or
(b) Individuals, who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual was a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or
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threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(c) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company (a "Corporate Transaction") in each case, unless, following such
Corporate Transaction, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately
prior to such Corporate Transaction beneficially own, directly or
indirectly, more than 60 percent of, respectively, the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election
of directors, as the case may be, of the corporation resulting from such
Corporate Transaction (including, without limitation, a corporation which
as a result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction, of the Outstanding
Company Common Stock and the Outstanding Company Voting Securities, as the
case may be, (ii) no Person (excluding any corporation resulting from such
Corporate Transaction or any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Corporate Transaction)
beneficially owns, directly or indirectly, 20 percent or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the combined
voting power of the then outstanding voting securities of such corporation
except to the extent that such ownership existed prior to the Corporate
Transaction and (iii) at least a majority of the members of the board of
directors of the corporation resulting from such Corporate Transaction
were members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for such
Corporate Transaction; or
(d) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
8.2 CHANGE OF CONTROL AGREEMENT. Employee is a party to a Change of
Control Agreement (the "COC Agreement") with the Company regarding compensation
and severance arrangements in the event of a change in control (as defined
therein) of the Company. In the event of any termination of Employee' employment
to which the COC Agreement would apply, Employee shall be entitled to all the
benefits provided under either this Agreement or the COC Agreement, whichever
one in its entirety he shall choose, but not under both, and when Employee has
elected which agreement shall apply, the other agreement shall be superseded in
its entirety and shall be of no further force and effect, and neither party
shall have any obligation to the other thereunder.
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8.3 SUCCESSORS; BINDING AGREEMENT. The Company will require any successors
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company, by
agreement in form and substance reasonably satisfactory to Employee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such agreement
prior to the effectiveness of any succession shall be a breach of this Agreement
and shall entitle Employee to compensation from the Company in the same amount
and on the same terms as if he had terminated his employment pursuant to Section
6(a), except that for purposes of implementing the foregoing, the date on which
each such succession become effective shall be the Date of Termination. As used
in this Agreement, "Company" shall mean the Company as hereinbefore defined and
any successor to its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this Section 8.2 or which otherwise
becomes bound by all of the terms and provisions of this Agreement by operation
of law. This Agreement and all rights of Employee hereunder shall inure to the
benefit of and be enforceable by Employee' personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Employee should die while any amounts would still be payable to him
hereunder if he continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to
Employee' designated beneficiaries set forth in a written beneficiary
designation filed with the Company or, if there be no such designated
beneficiary, to Employee' estate.
8.4 NOTICES. For purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company to: Mr. Z. A. Hakim
CCC GlobalCom, Corporation
00000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
If toMr. Xxxx X. Xxxxxxx
00000 Xxxx Xxxxx Xx.
Xxxx, Xxxxx 00000
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
8.5 APPLICABLE LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Texas without regard to the conflict of law principles thereof.
8.6 WAIVER. No provisions of this Agreement may be modified, waived or
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discharged unless such waiver, modification or discharge is agreed to in
writing, signed by Employee and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same time or any prior or subsequent time.
8.7 VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not effect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect.
8.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
8.9 ENTIRE AGREEMENT. This Agreement, together with any exhibits hereto,
constitutes, the entire agreement of the parties with regard to the subject
matter hereof, and contains all the covenants, promises, representations,
warranties and agreements between the parties with respect to the employment of
Employee by the Company. Each party to this Agreement acknowledges that no
representation, inducement, promise or agreement, oral or written, has been made
by either party or by anyone acting on behalf of either party which is not
embodied herein, and that no agreement, statement or promise relating to the
employment of Employee by the Company, which is not contained in this Agreement,
or any exhibits hereto, shall be valid or binding. Any modification or amendment
of this Agreement will be effective only if it is in writing and signed by each
of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
CCC GlobalCom, Corporation
/s/
By:______________________
Employee:
/s/
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