EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of the
first (1st) day of February, 1999 (the "Effective Date"), by and between
AMERICA'S DOCTOR, INC., a Delaware corporation (the "Company"), and XXXXX X.
XXXXXX, M.D. (the "Executive").
Explanatory Statement
A. The Company provides on-line medical information to the general public
through the Internet and America On-line.
B. The Executive has specialized expertise related to the business of the
Company.
C. The Company desires to employ the Executive to render the services
described in this Agreement, and the Executive is willing to accept such
employment, upon the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the Explanatory Statement, which shall
be deemed to be a substantive part of this Agreement, and the mutual covenants
and representations contained herein, the parties hereto agree as follows:
1. Employment and Duties.
1.1. Duties. As of the Effective Date, the Company shall employ the
Executive as its President, on a full-time basis to render such services and
perform such duties customary to his position for and on behalf of the Company,
and the Executive shall render such other and further services and perform such
other and further duties for and on behalf of the Company as may be assigned
reasonably to the Executive by the Company's Board of Directors (the
"Services"). The Executive shall perform his duties faithfully and to the best
of his abilities.
1.2. Extent of Service. During the Term, the Executive shall devote
a significant portion of his time and efforts to the business of the Company and
will at such times devote such efforts as are reasonably sufficient for
fulfilling the significant responsibilities entrusted to him. The Executive
shall be permitted to engage in other activities, including, without limitation,
supervising his personal investments, participating in civic, political and
charitable activities, giving lectures and teaching, and serving on boards or as
a trustee of other organizations and corporations (subject to Section 8) so long
as such activities, in the aggregate, do not interfere with the performance by
the Executive of his duties hereunder. The Executive shall be entitled to retain
for his own account any and all income, compensation, fees, and revenue received
by the Executive arising out of, in connection with, or related to the
Executive's permitted activities.
2. Compensation and Benefits. In consideration of Executive's Services
under this Agreement, the Executive shall be compensated as follows:
2.1. Annual Salary. The Company shall pay the Executive during each
fiscal year of the Company during the Term an annual salary of Two Hundred
Twenty-Five Thousand Dollars ($225,000) plus annual cost-of-living adjustments
(determined as of the first day of the Company's fiscal year) (the "Annual
Salary"); the Annual Salary shall be prorated for that portion of the Company's
fiscal year during which the Term commenced and/or terminated if such
commencement and/or termination occurred on a day other than the first day and
last day, respectively, of the Company's fiscal year. The Annual Salary shall be
payable in semi-monthly installments. The Annual Salary shall be reviewed by the
Board each year during the Term and may be adjusted in the sole and absolute
discretion of the Board, provided that no such adjustment shall result in a
decrease of the Annual Salary.
2.2. Bonus. The Executive is eligible to receive, in addition to the
Annual Salary, an annual bonus ("Bonus") with respect to each fiscal year the
Executive is employed by the Company. The amount of the Bonus shall be
determined by the Compensation Committee of the Company in its sole discretion,
and the determination of the Compensation Committee shall be final, conclusive
and binding upon each of the parties. The Bonus shall not exceed $100,000.00 for
any year. The amount of the Bonus shall be based on the Executive's performance
and on goals and objectives to be mutually determined by the Executive and the
Compensation Committee
2.3. Stock Options. The Executive has the right to participate in
the Company's 1999 Long-Term Incentive Stock Option Plan (the "Option Plan").
The Option Plan provides for a three-year vesting schedule. On the Effective
Date, the Company shall grant the Executive an option to purchase Eighteen
Thousand (18,000) shares of the Company's common stock at a price of $66.18 per
share. The Board of Directors may, but is not obligated to, grant the Executive
additional options or option rights. Such options, if granted, shall be granted
at the end of each fiscal year.
2.4. Benefits. During the Term, the Executive shall be entitled to
receive employee benefits consisting of participation in the Company's pension
and retirement plans, group life insurance, group health insurance and such
other perquisites as may be provided by the Company from time to time to
executives equivalent to the Executive (collectively the "Perquisites") in
accordance with the policies of the Company in effect from time to time.
2.5. Vacations and Personal Leave. During each 12-month period
during the Term, the Executive shall be entitled to twenty (20) paid vacation
days. The Executive shall take his vacation at such time or times as shall be
approved by his supervisor or the Board of Directors, which approval shall not
be unreasonably withheld.
2.6. Relocation Assistance.
(a) The Company will reimburse the Executive for all normal
and customary costs associated withthe sale of the Executive's current
residence, which is located at 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, XX 00000. The
Company will also reimburse the Executive for all normal and customary costs
associated with (a) the purchase of a new home and (b) the relocation of the
Executive's household effects. Costs to be reimbursed include, but are not
limited to, attorney's fees, brokerage fees, seller's closing costs, moving
charges, mortgage origination fees relating to any mortgage on the Executive's
new residence (except that reimbursement of mortgage origination fees shall be
limited to a maximum of three per cent (3%) of the principal amount of the
mortgage). In the event the Executive is obligated to treat any of these
reimbursed costs as taxable income, the Company will also reimburse all federal
and state income taxes relating to such reimbursed costs.
(b) The Company will also pay the Executive for all costs, up
to a maximum of Seven Thousand Five Hundred Dollars ($7,500.00), associated with
up to six months of temporary housing and up to three (3) house-hunting trips
relating to the relocation of the Executive
3. Withholding. The Company shall withhold from any Annual Salary or Bonus
payment and any other compensation or benefits payable under this Agreement, all
federal, state, city and other taxes as shall be required pursuant to law.
4. Reimbursement of Certain Expenses. Subject to such policies as may from
time to time be established by the Board, the Company shall pay or reimburse the
Executive for all ordinary, necessary and reasonable expenses (including,
without limitation, travel, meetings, dues, subscriptions, fees, educational
expenses, computer equipment and the like) actually incurred or paid by the
Executive during the Term in the performance of the Services (including, without
limitation, expenses incident to attendance at board or management meetings of
the Company) upon presentation of expense statements or vouchers or such other
supporting information as the Board may require.
5. Disability.
5.1. Definitions. For purposes of this Agreement, the Executive
shall be "disabled" or have a "disability" if the Executive shall have an
illness, injury, or other physical or mental condition which results in the
Executive's inability to perform substantially the Services to the extent the
Executive was performing the Services immediately prior to the commencement of
such condition.
5.2. Temporary Disability. In the event that the Executive shall be
disabled for not more than 90 consecutive days or any 90 days during any twelve
(12) - month period during the Term, then the Executive, during the continuance
of such disability, shall remain employed by the Company hereunder and shall
continue to be paid his Annual Salary and Bonus and otherwise shall have all of
the rights and be subject to all of the Executive's obligations and
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duties under this Agreement, other than the obligation and duty to render the
Services otherwise in accordance with this Agreement.
5.3. Permanent Disability. In the event that the Executive shall be
disabled for more than 180 consecutive days or any 180 days during any twelve
(12) - month period during the Term, the Executive shall be deemed to be
"Permanently Disabled" for purposes of this Agreement, and this Agreement and
the Executive's employment hereunder shall cease and terminate, whereupon
neither party shall have any further rights, duties or obligations under this
Agreement, except for the Executive's obligations and duties under Sections 7, 8
and 9 hereof and the Company's obligations and duties under Sections 2, 3 and 4
hereof, but each party shall remain liable and responsible to the other for all
prior obligations and duties hereunder and for all acts and omissions of such
party prior to such termination. If the Executive's employment is terminated
under this Section 5.3, his right to receive his Bonus hereunder for any
Employment Year which has ended shall remain vested, but his right to receive
his Bonus for the year in which he is terminated shall be prorated to the
Termination Date, and if the Executive shall have no further right to receive a
Bonus except as stated hereinabove.
5.4. Arbitration of Disability Dispute. If the Company and the
Executive are unable to agree whether the Executive is Permanently Disabled
within the meaning of this Section, then that limited issue shall be submitted
to and settled by binding arbitration under and pursuant to the Maryland Uniform
Arbitration Act and the rules and regulations of the American Arbitration
Association, and the decision in such arbitration shall be final, conclusive and
binding upon each of the parties and judgment may be entered thereon in any
court of competent jurisdiction.
6. Death of the Executive. In the event of the death of the Executive
during the Term, this Agreement and the Executive's employment hereunder shall
terminate, whereupon neither party shall have any further rights, duties or
obligations under this Agreement, except that the Executive's estate shall be
bound by the Executive's obligations and duties under Sections 7, 8 and 9
hereof, the Company shall remain liable for the Company's obligations and duties
under Sections 2, 3 and 4 hereof, and further, the Company and the Executive's
estate shall remain liable and responsible to the other for all prior
obligations and duties hereunder and for all acts and omissions of the parties
prior to the Executive's death. If the Executive dies during the Term, his
eligibility to receive a Bonus hereunder for any Employment Year which has ended
shall remain vested, but his eligibility to receive a Bonus for the Employment
Year in which he has died shall be prorated to the date of his death. If the
Executive dies during the Term, the Executive shall have no further right or
eligibility to receive Bonus except as stated hereinabove.
7. Confidential Information.
7.1. Non-Disclosure of Confidential Information. The Executive
acknowledges that in the Executive's employment hereunder, the Executive will be
making use of, acquiring and adding to confidential information of a special and
unique nature and value
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relating to such matters as, but not limited to, the Company's business
operations, internal structure, financial affairs, systems, procedures, manuals,
confidential reports and lists of accounts, trade secrets, customers and
vendors, as well as the amount, nature and type of services used and preferred
by the Company's accounts and customers and the fees paid by such accounts, all
of which shall be deemed to be confidential information. In consideration of
employment by the Company, the Executive agrees that during the Term and upon
and after ceasing to be employed by the Company for any reason whatsoever, the
Executive shall not, for any reason or purpose whatsoever, directly or
indirectly, divulge or disclose to any person or entity any of such confidential
information which was obtained by the Executive as a result of the Executive's
employment with the Company, or any information or knowledge respecting the
affairs of the Company or any of its officers, directors, executives,
stockholders, accounts, customers or referrers of accounts learned or conceived
by the Executive while in the employ of the Company, but shall hold all of the
same inviolate.
7.2. Confidential Records. All financial books, records, instruments
and documents; client lists; data; reports; programs; software; tapes;
rolodexes; telephone and address books; card decks; listings; programming and
any other instruments, records or documents relating or pertaining to the
accounts serviced by the Company or the Executive, the Services rendered by the
Executive, or the Company (collectively, the "Records") shall at all times be
and remain the property of the Company. Upon ceasing to be employed by the
Company for any reason whatsoever, the Executive shall return to the Company all
Records (whether furnished by the Company or prepared by the Executive), and the
Executive shall neither make nor retain any copies of any of such Records after
such cessation of employment.
7.3 All inventions and other creations, whether or not patentable or
copyrightable or trademarkable, and all ideas, reports and other creative works,
including, without limitation, computer programs, manuals and related materials,
made or conceived in whole or in part by the Executive while employed by the
Company and within one (1) year of termination of the Executive's employment
under this Agreement for any reason whatsoever, which relate in any manner
whatsoever to the business, existing or proposed, of the Company or any other
business or research or development effort in which the Company or any of its
subsidiaries or affiliates engages during the Executive's employment by the
Company will be disclosed promptly by the Executive to the Company and shall be
the sole and exclusive property of the Company. All copyrightable works created
by the Executive and covered by this Section 7.3 shall be deemed to be works
made for hire. The Executive shall cooperate with the Company in patenting or
copyrighting or trademarking all such inventions, ideas, reports and other
creative works, shall execute, acknowledge, seal and deliver all documents
tendered by the Company to evidence its ownership thereof throughout the world,
and shall cooperate with the Company in obtaining, defending, and enforcing its
rights therein.
8. Restrictive Covenants.
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8.1. Non-Competition. The Executive and the Company recognize than
an important part of the Executive's duties will be to develop good will for the
Company through the Executive's personal contacts with customers, clients,
accounts, agents and others having business relationships with the Company, and
that there is a danger that this good will, a proprietary asset of the Company,
may follow the Executive if and when the Executive's relationship with the
Company is terminated. Accordingly, the Executive covenants that for a period of
one (1) year after the Executive ceases to be employed by the Company, the
Executive shall not, without the prior written consent of the Company, directly
or indirectly:
(a) Engage, either as a consultant, independent contractor,
proprietor, stockholder, partner, officer, director, executive, owner or
otherwise, in any business or activity that competes with the Company and the
Company's business;
(b) Render or attempt to render any services which were
rendered by the Company during the two (2) year period immediately preceding
such cessation of the Executive's employment with the Company to any clients,
customers or accounts of the Company with whom the Executive had direct or
indirect contact and/or to whom the Executive rendered any services at any time
during such two (2) year period, to or for the benefit or account of the
Executive or to or for the benefit or account of any other person or entity; and
(c) Solicit for employment or employ to or for the benefit or
account of the Executive or to or for the benefit or account of any other person
or entity any Executive of the Company, nor shall the Executive urge, directly
or indirectly, any client or referrer of clients, customers, or accounts of the
Company to discontinue, in whole or in part, business with the Company or not to
do business with the Company. For purposes of this Section 8.1(c) of this
Agreement, the term "referrer of clients" shall mean any person or entity who or
which referred a client, customer or account to the Company at any time prior to
such cessation of the Executive's employment with the Company.
8.2. Severability and Modification. The Parties hereto agree that to
the extent that any provision or portion of Section 8.1 of this Agreement shall
be held, found or deemed to be unreasonable, unlawful or unenforceable by a
court of competent jurisdiction, then any such provision or portion thereof
shall be deemed to be modified to the extent necessary in order that any such
provision or portion thereof shall be legally enforceable to the fullest extent
permitted by applicable law; and the parties hereto do further agree that any
court of competent jurisdiction shall, and the parties hereto do hereby
expressly authorize, request and empower any court of competent jurisdiction to,
enforce any such provision or portion thereof or to modify any such provision or
portion thereof in order that any such provision or portion thereof shall be
enforced by such court to the fullest extent permitted by applicable law.
8.3. Definitions. As used in Sections 7 and 8, "clients,"
"customers," and "accounts" shall include any person or entity that, directly or
indirectly, through one or more
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intermediaries, controls or is controlled by, or is under common control with,
any such "clients," "customers," or "accounts."
9. Termination of Employment.
9.1 Termination for Cause. If the Executive engages in (i) fraud,
(ii) embezzlement, (iii) any other crime involving moral turpitude, (iv) gross
or willful neglect of duty, or (v) material breach of any of the provisions of
this Agreement, on his part to be performed by him, the Company may at any time
thereafter terminate the Executive's employment hereunder by written notice to
him, effective immediately and the date the notice shall be the Termination Date
hereunder. Any such termination shall be deemed to be termination for cause, for
purposes of this Agreement. If the Executive's employment is terminated for
cause hereunder, then the Executive shall be entitled to receive only the
following payments: any portion of his Annual Salary accrued to the date of such
termination and not theretofore paid to him; any Bonus to which he is entitled
for any completed Employment Year under this Agreement which has not theretofore
been paid to him; any vested rights the Executive has under the Option Plan;
plus reimbursement for any expenses properly incurred by the Executive, and
supported by appropriate vouchers, which expenses have been incurred prior to
the date of such termination and which have not theretofore been reimbursed.
Except as set forth in the immediately preceding sentence, all of the
Executive's rights of compensation hereunder shall be terminated as of the
Termination Date in the event of termination for cause.
9.3. Other Termination of Employment by the Company. Anything
contained in this Agreement to the contrary notwithstanding, the Company may
discharge the Executive at any time upon written notice. In the event the
Company terminates the employment of the Executive hereunder other than pursuant
to any of the prior provisions hereof, without the Executive's consent, and in
accordance with this Section, then the Executive shall be deemed to have been
constructively terminated by the Company. Upon such termination, the Executive
shall be entitled to receive (a) his Annual Salary installment payments
(calculated as of the date of such termination) for a period of twelve (12)
months following such termination, and (b) group health insurance coverage for a
period of twelve (12) months following such termination. The Executive shall not
be entitled to any other compensation, reimbursement or benefits.
9.4. Other Termination of Employment by Executive. If the Executive
quits his employment (other than as authorized under Section 9.2 hereof), then
he shall be deemed to have been terminated by the Company for cause and shall be
subject to the provisions of Section 9.1 hereof.
9.5 Termination in the Event of Sale Merger or Consolidation. Upon a
change in control of the Company as a result of a sale, merger or consolidation,
if the Executive's total compensation, benefits, responsibilities or position
within the Company is diminished within six (6) months after such change of
control, sale, merger or consolidation, the Executive may elect to terminate his
employment by the Company, in which event the Executive would receive all of
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the compensation and benefits set forth in Section 9.3, above. In addition, upon
such termination, the Executive's rights under the Option Plan and any annual
incentive plan established by the Company shall immediately vest.
9.6. Injunctive Relief. It is recognized that damages, in the event
of a breach or threatened breach by the Executive of the Executive's obligations
and duties under this Agreement, would be difficult to ascertain, and it is,
therefore, agreed that the Company, in addition to, and without limiting any
other power, remedy or right it may have, shall have the right to seek an
injunction or other equitable relief in any court of competent jurisdiction,
seeking to enjoin any such breach, and the Executive hereby waives any and all
defenses he may have on the ground of lack of jurisdiction or competence of the
court to grant such an injunction or other equitable relief and any substantive
defenses to the granting of such injunctive relief. The existence of this right
shall not preclude any other powers, rights and remedies at law, in equity or
otherwise which the Company may have, but shall be in addition to, and
cumulative with, any other remedy available to the Company at law, in equity or
otherwise.
9.7. Indemnification. The Executive shall defend, indemnify and hold
harmless the Company from and against any and all claims, demands, threats,
charges, suits, actions, proceedings, liabilities, damages, losses, costs and
expenses (including attorneys' and experts' fees, interest and court costs) of
every kind and nature arising out of, resulting from, or in connection with any
breach or threatened breach of this Agreement by the Executive. The Company
shall defend, indemnify and hold harmless the Executive from and against any and
all claims, demands, threats, charges, suits, actions, proceedings, liabilities,
damages, losses, costs and expenses (including attorneys' and experts' fees,
interest and court costs) of every kind and nature arising out of or resulting
from the Executive's actions in his capacity as an officer or director of the
Company.
9.8. Setoff. Anything contained in this Agreement to the contrary
notwithstanding, the Company may setoff against any amount of money or other
consideration due to the Executive under this Agreement, any amount of money or
other consideration that is, or may become, due from the Executive to the
Company pursuant to Section 9.6 of this Agreement or otherwise under or outside
of this Agreement.
10. Term.
10.1. Duration. The term of this Agreement and the Company's
employment of the Executive (the "Term") shall commence on the July 1, 1999
and shall continue until the first to occur of the following: (i) the close
of business on the fifth (5th) anniversary of the date of this Agreement (the
"Initial Term"), or such later date to which the Executive's employment is
extended as provided in Section 10.2; (ii) the Executive's normal retirement
date under the Company's retirement policy or plan as in effect from time to
time ("Normal Retirement Date"); (iii) the death or Permanent Disability of
the Executive; (iv) the termination of this Agreement pursuant to Section 9;
(v) at the Executive's option, pursuant to Section 10.3.
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10.2. Extension of Term. The Term shall be extended automatically
after the Initial Term, without any further action on the part of the Executive
or the Company, indefinitely (but not beyond (a) the Executive's Normal
Retirement Date or (b) a termination as defined in Section 9, and not in the
event of the death or Permanent Disability of the Executive) for additional
one-year terms (each a "Renewal Term"), unless the Company or the Executive
notifies the other to the contrary in writing not less than three (3) months
prior to the end of the Initial Term or any Renewal Term.
10.3 Initial Public Offering; Executive's Right to Renegotiate. In
the event of a firmly underwritten initial public offering of the Company's
common stock at a before-the-money market capitalization of not less than
$75,000,000, the Executive, in his sole discretion, may require the Company to
renegotiate the terms of this Agreement. In such event, the Executive shall be
entitled to compensation and other benefits consistent with the compensation and
benefits of other Chief Executive Officers of similarly situated companies.
10.4. Obligations Upon Termination. Upon the cessation of the
Company's employment of the Executive for any reason whatsoever, neither party
shall thereafter have any further rights, duties or obligations under this
Agreement, except for the Executive's obligations and duties arising under
Sections 7, 8 and 9 hereof and the Company's obligations and duties arising
under Sections 2, 3, 4 and 9 hereof, but each party shall remain liable and
responsible to the other for all prior obligations and duties hereunder and for
all acts and omissions of such party prior to such termination.
11. Insurance. The Executive hereby consents to the Company, in its
discretion, taking out and maintaining during the Term, such life, disability
and disability buyout insurance policies with respect to the Executive, in such
amounts, with such insurance companies and upon such terms and conditions as may
be determined by the Board in its discretion, to fund or partially fund the
Company's obligation to repurchase any Stock owned by the Executive at the time
of the Executive's death or Permanent Disability, which the Company is obligated
to repurchase under the terms of any stockholders' agreement to which the
Executive and the Company are parties or for any other Company purpose.
12. Benefit. This Agreement shall inure to the benefit of and be binding
upon the Company, its successors and assigns, including, but not limited, to (i)
any corporation which may acquire all or substantially all of the Company's
assets and business, (ii) any corporation with or into which the Company may be
consolidated or merged, or (iii) any corporation that is the successor
corporation in a share exchange, and the Executive, his heirs, guardians and
personal and legal representatives.
13. Notices.
All notices and other communications required or permitted to be given
hereunder shall be in writing, and shall be hand-delivered against receipted
copy, telecopied to the telephone
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number set forth below or mailed by United States registered or certified mail,
return receipt requested, postage prepaid, to the address set forth below:
If to the Company to:
America's Doctor, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Rifkin, Livingston, Xxxxxxx & Silver, LLC
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
And if to the Executive during the Term, in care of the Company;
And if to the Executive after the Term, to:
XXXXX X. XXXXXX, M.D.
00 Xxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
or to such other address or telephone number as the Executive or the Company may
notify the other in writing pursuant to this Section. Notices hand-delivered or
transmitted in accordance with this provision shall be deemed to have been
received on the date so hand-delivered or telecopied or three (3) days after the
date so mailed.
14. Notification Requirement. During the period of noncompetition provided
in Section 8 of this Agreement, the Executive shall give notice to the Company
of each new business activity in which he plans to undertake at least one
hundred twenty (120) days prior to beginning such activity. Such notice shall
state the name and address of the person for whom such activity is undertaken,
the business address of the activity, and the nature of Executive's business
relationship and/or position with such person, company or project. The Executive
shall provide the Company with such information as the Company may reasonably
request in order to determine Executive's continued compliance with
non-competition agreements.
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15. Conflicting Agreements. Executive hereby represents and warrants to
the Company that his execution of this Agreement and the performance of his
obligations hereunder will not breach or be in conflict with any other agreement
to which he may be a party or may be bound and is not subject to any covenant
against competition or similar covenants that would affect performance of his
duties and obligations hereunder. Executive shall not use for the benefit of the
Company any proprietary information of a third party without such third party's
consent.
16. Miscellaneous.
16.1. Binding effect. This Agreement shall be effective as of the
date hereof and shall be binding upon and inure to the benefit of the Executive,
his heirs, personal and legal representatives, and guardians and shall be
binding upon and inure to the benefit of the Company and its successors and
assigns.
16.2. Assignment. This Agreement may not be assigned by the
Executive without the prior written consent of the Company.
16.3. Integrated Agreement. This Agreement represents the full,
complete, entire and integrated agreement between the Executive and the Company
with respect to the subject matter hereof, and supersedes all prior oral and
written agreements, understandings and negotiations with respect to the subject
matter hereof.
16.4. Amendments. This Agreement may not be changed, modified, or
discharged orally, but only by an instrument in writing signed by the parties.
16.5. Applicable Law. This Agreement is entered into in, and shall
be governed by, construed and enforced in accordance with the laws of the State
of Maryland, without reference to principles of conflicts of laws.
16.6. Explanatory Statement; Exhibits; Headings. The Explanatory
Statement and each exhibit attached hereto are substantive parts hereof;
headings of the sections of this Agreement are for convenience of reference only
and are not substantive parts hereof.
16.7. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall be one
and the same instrument.
16.8. Gender. The use of any gender herein shall be deemed to be or
include the other genders and the neuter and the use of the singular herein
shall be deemed to be and include the plural (and vice versa), wherever
appropriate.
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16.9 Severability. The parties hereto agree that to the extent that
any provision or portion of this Agreement shall be held, found or deemed to be
unreasonable, unlawful or unenforceable by a court of competent jurisdiction,
then any such provision or portion thereof shall be deemed to be modified to the
extent necessary in order that any such provision or portion thereof shall be
legally enforceable to the fullest extent permitted by applicable law.
16.10 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall be one
and the same instrument.
IN WITNESS WHEREOF, the parties have executed, acknowledged, sealed and
delivered this Agreement as of the date first above written.
ATTEST: XXXXXXXXXXXXXX.XXX, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------ -------------------------------
Xxxxx X. Xxxxxxx
----------------------------------
Name (printed)
Chief Financial Officer
----------------------------------
Title
WITNESS: XXXXX X. XXXXXX, M.D.
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxx
------------------------ ----------------------------------
STATE OF MARYLAND TO WIT:
CITY/COUNTY OF
I HEREBY CERTIFY that on this 29 day of January, 1999, before me, the
subscriber, a Notary Public in and for the City/County and State aforesaid,
personally appeared Xxxxx X. Xxxxxxx, who acknowledged himself to be the
Chief Financial Officer of XxxxxxxxXxxxxx.xxx, Inc., a Delaware corporation
(the "Corporation"), known to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument, and he
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acknowledged that he executed the same for the purposes therein contained as the
duly authorized ____________________ of said Corporation by signing the name of
the Corporation by himself as ____________________.
AS WITNESS my hand and Notarial Seal.
/s/
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Notary Public
My Commission Expires: 5-1-02
I HEREBY CERTIFY that on this _____ day of _______________, 1999, before
me, the subscriber, a Notary Public in and for the City/County and State
aforesaid, personally appeared XXXXXXX X. XXXXX, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument, who
acknowledged the foregoing instrument to be his act.
AS WITNESS my hand and Notarial Seal.
/s/
------------------------------------
Notary Public
My Commission Expires: 5-1-02
-13-
