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EXHIBIT 10.3
AMENDMENT NO. 1 TO RESTATED EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO RESTATED EMPLOYMENT AGREEMENT ("Amendment") is made
and entered into as of this 28th day of February, 1997, by and between XXXXX X.
XXXXXX, an individual resident of the State of Georgia ("Employee") and AHL
SERVICES, INC., a Georgia corporation (the "Employer").
WITNESSETH:
WHEREAS, Employer and Employee executed a Restated Employment Agreement
dated as of February 1, 1997 (the "Employment Agreement");
WHEREAS, Employer and Employee desire to amend the Employment Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual promises
and agreements contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Section 4.1(a) of the Employment Agreement is hereby amended and
restated to read in its entirety as follows:
"(a) Option Grant. Effective as of December 1, 1996, Employee is
hereby granted options to purchase 107,500 shares of common stock of
Employer at an exercise price of $10.75 per share. In addition,
effective as of February 28, 1997, Employee is hereby granted options to
purchase 2,500 shares of common stock of Employer at an exercise price
of $10.75 per share. Twenty percent of the options will be exercisable
on the date of grant and the balance will become exercisable 20% per
year on December 1, commencing December 1, 1997. The options granted
under this Section 4.1(a) will expire ten years from the date of grant,
except as otherwise provided in Section 4.2."
2. Binding Effect. This Amendment inures to the benefit of, and is
binding upon, Employer and its successors and assigns, and Employee,
together with Employee's executor, administrator, personal representative,
heirs, and legatees.
3. Entire Agreement. This Amendment is intended by the parties hereto
to amend and supplement the Employment Agreement and, except as otherwise
stated herein, the Employment Agreement shall remain in full force and
effect.
4. Governing Law. This Amendment shall be deemed to be made in, and
in all respects shall be interpreted, construed, and governed by and in
accordance with, the laws of the State of Georgia. No provision of this
Amendment shall be construed against or interpreted to the disadvantage of
any party hereto by any court or other governmental or judicial authority
or by any board of arbitrators by reason of such party or its counsel
having or being deemed to have structured or drafted such provision.
5. Headings. The section and paragraph headings contained in this
Amendment are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Amendment.
6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
AHL SERVICES, INC.
By: /s/ XXXXX X. XXXXXXXXXXX, XX.
------------------------------------
Xxxxx X. Xxxxxxxxxxx, Xx.
Chairman and Co-Chief Executive
Officer
EMPLOYEE
/s/ XXXXX X. XXXXXX
--------------------------------------
Xxxxx X. Xxxxxx
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RESTATED EMPLOYMENT AGREEMENT
THIS RESTATED AGREEMENT ("Agreement") is made and
entered into as of this 1st day of February, 1997, by and between XXXXX X.
XXXXXX, an individual resident of the State of Georgia ("Employee"), and AHL
SERVICES, INC., a Georgia corporation (the "Employer").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee, and Employee
desires to be employed by Employer, on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, the parties hereto, intending
to be legally bound, hereby agree as follows:
Section 1 Employment.
Subject to the terms hereof, the Employer hereby employs
Employee, and Employee hereby accepts such employment. Employee will serve as
Chief Financial Officer of Employer or in such other executive capacity as the
Board of Directors of Employer (the "Board of Directors") may hereafter from
time to time determine. Employee agrees to devote his full business time and
best efforts to the performance of the duties that Employer may assign Employee
from time to time.
Section 2 Term of Employment.
The term of Employee's employment hereunder (the "Term") shall
be from October 15, 1996 until the earlier of (a) December 31, 2001 or (b) the
occurrence of any of the following events:
(i) The death or total disability of Employee (total disability
meaning the failure to fully perform his normal required
services hereunder for a period of three (3) months during any
consecutive twelve (12) month period during the term hereof,
as determined by the Board of Directors, by reason of mental
or physical disability);
(ii) The termination by Employer of Employee's employment
hereunder, upon prior written notice to Employee, for "good
cause", as determined by the Board of Directors. For purposes
of this Agreement, "good cause" for termination of Employee's
employment shall exist (A) if Employee is convicted of, pleads
guilty to, or confesses to any felony or any act of fraud,
misappropriation or embezzlement, (B) if Employee has engaged
in a dishonest act to the damage or
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prejudice of Employer or an affiliate of Employer, or in
conduct or activities materially damaging to the property,
business, or reputation of Employer or an affiliate of
Employer, (C) if Employee fails to comply with the terms of
this Agreement, and, within thirty (30) days after written
notice from Employer of such failure, Employee has not
corrected such failure or, having once received such notice of
failure and having so corrected such failure, Employee at any
time thereafter again so fails, or (D) if Employee violates
any of the provisions contained in Sections 5 of this
Agreement; or
(iii) The termination of this Agreement by either party upon at
least ninety (90) days prior written notice.
Section 3 Compensation.
3.1 Term of Employment. Employer will provide Employee
with the following salary, expense reimbursement and additional employee
benefits during the term of employment hereunder:
(a) Salary. Employee will be paid a salary (the "Salary")
of no less than One Hundred Sixty-Five Thousand
Dollars ($165,000) per annum, less deductions and
withholdings required by applicable law. The Salary
shall be paid to Employee in equal monthly
installments (or on such more frequent basis as the
other executives of Employer are compensated). The
Salary shall be reviewed by the Board of Directors of
Employer on at least an annual basis.
(b) Bonus. Employee will be entitled to an annual bonus
(the "Bonus") of up to 30% of Salary, which Bonus
shall be dependent upon Employer's financial
performance versus budget and achievement of personal
objectives established for Employee by Employer. The
Bonus shall be paid promptly upon the availability of
annual financial results (which is expected to occur
in early February of each year).
(c) Car Allowance. Employee shall receive a car allowance
of Six Hundred Dollars ($600) per month.
(d) Club Dues. Employee shall be reimbursed for monthly
dues of The One- Ninety- One Club so that this
facility may be used for client entertainment.
(e) Vacation. Employee shall receive three (3) weeks
vacation time per calendar year during the term of
this Agreement. Any unused vacation days in any
calendar year may not be carried over to subsequent
years.
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(f) Expenses. Employer shall reimburse Employee for all
reasonable and necessary expenses incurred by
Employee at the request of and on behalf of Employer.
(g) Benefit Plans. Employee may participate in such
medical, dental, disability, hospitalization, life
insurance and other benefit plans (such as pension
and profit sharing plans) as Employer maintains from
time to time for the benefit of other senior
executives of Employer, on the terms and subject to
the conditions set forth in such plans.
3.2 Effect of Termination. Except as hereinafter
provided, upon the termination of the employment of Employee hereunder for any
reason, Employee shall be entitled to all compensation and benefits earned or
accrued under Section 3.1 as of the effective date of termination (the
"Termination Date"), but from and after the Termination Date no additional
compensation or benefits shall be earned by Employee hereunder. Employee shall
be deemed to have earned any Bonus payable with respect to the calendar year in
which the Termination Date occurs on a prorated basis (based on the number of
days in such calendar year through and including the Termination Date divided
by 365). Any such Bonus shall be payable on the date on which the Bonus would
have been paid had Employee continued his employment hereunder. If Employee's
employment hereunder is terminated by Employer pursuant to Section 2(b)(iii)
hereof, then, in addition to any other amount payable hereunder, Employer shall
continue to pay Employee his normal Salary pursuant to Section 3.1(a) for the
six-month period immediately following the Termination Date (on the same basis
as if Employee continued to serve as an employee hereunder for such six-month
period). All stock options granted to Employee pursuant to Section 4 hereof
shall be governed in accordance with Section 4.2 hereof upon termination of
Employee's employment.
Section 4 Stock Options.
4.1 Term of Employment. So that Employee can share in the
increase in value of the business of Employer over time, Employee will be
granted stock options as follows:
(a) Option Grant. Effective as of December 1, 1996,
Employee is hereby granted stock options to purchase
107,500 shares of common stock of Employer at an
exercise price of $11.76 per share. Twenty percent of
each option grant will be exercisable immediately,
and the balance will become exercisable 20% per year
on the first, second, third and fourth anniversary of
the date of grant. The options granted under this
Section 4.1(a) will expire ten years from the date of
grant, except as otherwise provided in Section 4.2.
(b) Sale or Merger. All options granted to Employee
pursuant to this Agreement will become fully
exercisable if Employer is sold (or all or
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substantially all of the assets of Employer are sold)
(by stock sale, merger or otherwise) to a third
party.
(c) Stock Splits and Recapitalization. The number of
shares of common stock issuable upon exercise of
options granted hereby and the exercise price of such
options shall be automatically adjusted to reflect
any change in the capitalization of Employer,
including, but not limited to, such changes as stock
dividends, stock splits or recapitalizations. If any
adjustment under this Section would create the right
of Employee to acquire a fractional share of stock,
such fractional share shall be disregarded and the
number of shares of common stock subject to the
options shall be the next lower number of whole
shares of common stock, rounding all fractions
downward.
4.2 Termination of Employment. The grant of stock
options to Employee under this Agreement shall not restrict or in any manner
affect Employer's right to terminate the employment of Employee at any time,
with or without cause, as herein provided. If Employee's employment is
terminated pursuant to Section 2(b)(i) hereof or if Employee's employment is
terminated by Employer pursuant to Section 2(b)(iii), all options granted to
Employee pursuant to Section 4.1(a) hereof shall immediately become exercisable
upon such termination. In the case of a termination pursuant to Section 2(b)(i)
hereof, the options will expire in accordance with their respective scheduled
expiration dates. In the case of a termination by Employer pursuant to Section
2(b)(iii) hereof, the options will expire on the first anniversary of the
effective date of the termination of Employee's employment hereunder. Upon the
death of Employee, any options which Employee would otherwise be entitled to
exercise hereunder may be exercised by his personal representatives or heirs,
as applicable. If Employee's employment is terminated by Employer pursuant to
Section 2(b)(ii) or by Employee pursuant to Section 2(b)(iii), those options
which are exercisable as of the date of such termination shall be exercisable
for a period of one year after such termination (and all other options not then
exercisable shall be forfeited as of such date), and after such one year
period, all unexercised options will expire.
4.3 Exercise. The options granted under Section 4.1 may
be exercised by Employee upon five business days' written notice of exercise to
Employer, specifying the number of shares to be purchased and the total
purchase price, accompanied by a check to the order of Employer, in the payment
of such price. The exercise price of the options granted under Section 4.1
shall be payable in cash only. If Employer is required to withhold on account
of any present or future tax imposed as result of any option exercise, the
notice of exercise shall be accompanied by a check to the order of Employer for
payment of the amount of such withholding. Employee agrees to enter into any
agreement that Employer may request in connection with the exercise of any
options.
4.4 Nontransferable. No option granted under Section 4.1
shall be transferable by Employee other than by will or by the laws of descent
and distribution, and the options granted
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under Section 4.1 shall be exercisable during Employee's lifetime only by
Employee. The options shall not be otherwise transferred, assigned, pledged,
hypothecated or disposed of in any way, whether by operation of law or
otherwise.
4.5 Securities Act. THE OPTIONS AND THE SHARES OF COMMON STOCK
(THE "SHARES") ISSUABLE UPON EXERCISE OF THE OPTIONS HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY APPLICABLE
STATE SECURITIES LAWS. THE OPTIONS AND SHARES ARE OFFERED PURSUANT TO EXEMPTIONS
PROVIDED BY SECTION 4(2) OF THE ACT AND CERTAIN RULES AND REGULATIONS
PROMULGATED PURSUANT THERETO. THE SHARES MAY NOT BE TRANSFERRED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO EMPLOYER AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
4.6 Non-Incentive Options. The options granted under Section
4.1 are not intended to be, and shall not be treated as, incentive stock options
under Section 422 of the Internal Revenue Code of 1986, as amended.
4.7 Registration Statement on Form S-8. Following the
consummation of an initial public offering of the common stock of Employer (the
"IPO"), Employer undertakes to file a Registration Statement on Form S-8 (the
"Form S-8") to register the shares of common stock issuable upon exercise of the
options. Employer shall use its reasonable good faith efforts to file the Form
S-8 on or before the date that is six months after the consummation of the IPO.
Section 5 Partial Restraint on Post-termination
Competition.
5.1 Definitions. For the purposes of this Section 5, the
following definitions shall apply:
(a) "Company Activities" means the business of
providing security services, including,
without limitation, contractual security
services, investigative services, polygraph
services and pre-employment testing and/or
screening or providing transportation,
including but not limited to guided bus
tours.
(b) "Competitor" means any business, individual,
partnership, joint venture, association,
firm, corporation or other entity, other
than the Employer or its affiliates or
subsidiaries, engaged, wholly or partly, in
Company Activities.
(c) "Competitive Position" means (i) the direct
or indirect ownership or control of all or
any portion of a Competitor; or (ii) any
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employment or independent contractor
arrangement with any Competitor whereby
Employee will serve such Competitor in any
managerial capacity.
(d) "Confidential Information" means any
confidential, proprietary business
information or data belonging to or
pertaining to Employer that does not
constitute a "Trade Secret" (as hereinafter
defined) and that is not generally known by
or available through legal means to the
public, including, but not limited to,
information regarding Employer's customers
or actively sought prospective customers,
suppliers, manufacturers and distributors
gained by Employee as a result of his
employment with Employer.
(e) "Customer" means actual customers or
actively sought prospective customers of
Employer during the Term.
(f) "Noncompete Period" or "Nonsolicitation
Period" means the period beginning the date
hereof and ending on the second anniversary
of the termination of Employee's employment
with Employer.
(g) "Territory" means the area within a
thirty-five (35) mile radius of any
corporate office of Employer or any of its
subsidiaries, affiliates or divisions.
(h) "Trade Secrets" means information or data of
or about Employer, including but not limited
to technical or non-technical data,
formulas, patterns, compilations, programs,
devices, methods, techniques, drawings,
processes, financial data, financial plans,
products plans, or lists of actual or
potential customers, clients, distributees
or licensees, information concerning
Employer's finances, services, staff,
contemplated acquisitions, marketing
investigations and surveys, that (i) derive
economic value, actual or potential, from
not being generally known to, and not being
readily ascertainable by proper means by,
other persons who can obtain economic value
from their disclosure or use; and (ii) are
the subject of efforts that are reasonable
under the circumstances to maintain their
secrecy.
(i) "Work Product" means any and all work
product, property, data documentation or
information of any kind, prepared,
conceived, discovered, developed or created
by Employee for Employer or its affiliates,
or any of Employer's or its affiliates'
clients or customers.
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5.2 Trade Name and Confidential Information.
(a) Employee hereby agrees that (i) with regard
to each item constituting all or any portion
of the Trade Secrets, at all times during
the Term and all times during which such
item continues to constitute a Trade Secret
under applicable law; and (ii) with regard
to any Confidential Information, during the
Term and the Noncompete Period:
(i) Employee shall not, directly or by
assisting others, own, manage,
operate, join, control or
participate in the ownership,
management, operation or control of,
or be connected in any manner with,
any business conducted under any
corporate or trade name of Employer
or name similar thereto, without the
prior written consent of Employer;
(ii) Employee shall hold in confidence
all Trade Secrets and all
Confidential Information and will
not, either directly or indirectly,
use, sell, lend, lease, distribute,
license, give, transfer, assign,
show, disclose, disseminate,
reproduce, copy, appropriate or
otherwise communicate any Trade
Secrets or Confidential Information,
without the prior written consent of
Employer; and
(iii) Employee shall immediately notify
Employer of any unauthorized
disclosure or use of any Trade
Secrets or Confidential Information
of which Employee becomes aware.
Employee shall assist Employer, to
the extent necessary, in the
procurement or any protection of
Employer's rights to or in any of
the Trade Secrets or Confidential
Information.
(b) Upon the request of Employer and, in any
event, upon the termination of Employee's
employment with Employer, Employee shall
deliver to Employer all memoranda, notes,
records, manuals and other documents,
including all copies of such materials and
all documentation prepared or produced in
connection therewith, pertaining to the
performance of Employee's services hereunder
or Employer's business or containing Trade
Secrets or Confidential Information, whether
made or compiled by Employee or furnished to
Employee from another source by virtue of
Employee's employment with Employer.
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(c) To the greatest extent possible, all Work
Product shall be deemed to be "work made for
hire" (as defined in the Copyright Act, 17
U.S.C.A.ss.ss.101 et seq., as amended) and
owned exclusively by Employer. Employee
hereby unconditionally and irrevocably
transfers and assigns to Employer all
rights, title and interest Employee may have
in or to any and all Work Product,
including, without limitation, all patents,
copyrights, trademarks, service marks and
other intellectual property rights. Employee
agrees to execute and deliver to Employer
any transfers, assignments, documents or
other instruments which Employer may deem
necessary or appropriate to vest complete
title and ownership of any and all Work
Product, and all rights therein, exclusively
in Employer.
5.3 Noncompetition.
(a) The parties hereto acknowledge that Employee
is conducting Company Activities throughout
the Territory. Employee acknowledges that to
protect adequately the interest of Employer
in the business of Employer it is essential
that any noncompete covenant with respect
thereto cover all Company Activities and the
entire Territory.
(b) Employee hereby agrees that, during the Term
and the Noncompete Period, Employee will
not, in the Territory, either directly or
indirectly, alone or in conjunction with any
other party, accept, enter into or take any
action in conjunction with or in furtherance
of a Competitive Position. Employee shall
notify Employer promptly in writing if
Employee receives an offer of a Competitive
Position during the Noncompete Term, and
such notice shall describe all material
terms of such offer.
Nothing contained in this Section 5 shall prohibit Employee
from acquiring not more than five percent (5%) of any company whose common stock
is publicly traded on a national securities exchange or in the over-the-counter
market.
5.4 Nonsolicitation During Employment Term. Employee
hereby agrees that Employee will not, during the Term, either directly or
indirectly, alone or in conjunction with any other party:
(a) solicit, divert or appropriate or attempt to
solicit, divert or appropriate, any Customer
for the purpose of providing the
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Customer with services or products
competitive with those offered by Employer
during the Term; or
(b) solicit or attempt to solicit any employee,
consultant, contractor or other personnel of
Employer or any of its affiliates or
subsidiaries to terminate, alter or lessen
that party's affiliation with Employer or
such affiliate or subsidiary or to violate
the terms of any agreement or understanding
between such employee, consultant,
contractor or other person and Employer.
5.5 Nonsolicitation During Nonsolicitation Period.
Employee hereby agrees that Employee will not, during the Nonsolicitation
Period, either directly or indirectly, alone or in conjunction with any other
party:
(a) solicit, divert or appropriate or attempt to
solicit, divert or appropriate, any Customer
for the purpose of providing the Customer
with services or products competitive with
those offered by Employer during the Term;
provided, however, that the covenant in this
clause shall limit Employee's conduct only
with respect to those Customers with whom
Employee had substantial contact (through
direct or supervisory interaction with the
Customer or the Customer's account) during a
period of time up to but no greater than two
(2) years prior to the last day of the Term;
or
(b) solicit or attempt to solicit any "key"
employee, consultant, contractor or other
personnel of Employer or any of its
affiliates or subsidiaries residing at the
time of the solicitation in the Territory to
terminate, alter or lessen that party's
affiliation with Employer or such affiliate
or subsidiary or to violate the terms of any
agreement or understanding between such
employee, consultant, contractor or other
person and Employer. For purposes of this
clause (b), "key" employees, consultants,
contractors, or other personnel are those
with knowledge of or access to Trade Secrets
and Confidential Information.
Section 6 Miscellaneous.
6.1 Severability. The covenants in this Agreement shall
be construed as covenants independent of one another and as obligations
distinct from any other contract between Employee and Employer. Any claim that
Employee may have against Employer shall not constitute a defense to
enforcement by Employer of this Agreement.
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6.2 Survival of Obligations. The covenants in Section 5
of this Agreement shall survive termination of Employee's employment,
regardless of who causes the termination and under what circumstances.
6.3 Notices. Any notice or other document to be given
hereunder by any party hereto to any other party hereto shall be in writing and
delivered in person or by courier, by telecopy transmission or sent by any
express mail service, postage or fees prepaid at the following addresses:
EMPLOYER
AHL Services, Inc.
Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, XX
Suite 0000, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. X.X. Xxxxxxxxxxx, Xx.
Chairman
Telecopy No.: (000) 000-0000
EMPLOYEE
Xx. Xxxxx X. Xxxxxx
000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
or at such other address or number for a party as shall be specified by like
notice. Any notice which is delivered in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party or its agent.
6.4 Binding Effect. This Agreement inures to the benefit
of, and is binding upon, Employer and their respective successors and assigns,
and Employee, together with Employee's executor, administrator, personal
representative, heirs, and legatees.
6.5 Entire Agreement This Agreement is intended by the
parties hereto to be the final expression of their agreement with respect to
the subject matter hereof and is the complete and exclusive statement of the
terms thereof, notwithstanding any representations, statements or agreements to
the contrary heretofore made. This Agreement supersedes and terminates all
prior employment and compensation agreements, arrangements and understandings
between or among Employer and Employee (including, without limitation, the
Employment Agreement, dated December 1, 1996, between Xxxxxxxxxxx Holdings
Limited, The ADI Group and Employee and the Long Term Incentive Agreement,
dated August 9, 1995, between
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Xxxxxxxxxxx Holdings Limited and Employee). This Agreement may be modified only
by a written instrument signed by all of the parties hereto.
6.6 Governing Law. This Agreement shall be deemed to be made
in, and in all respects shall be interpreted, construed, and governed by and in
accordance with, the laws of the State of Georgia. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority or by any
board of arbitrators by reason of such party or its counsel having or being
deemed to have structured or drafted such provision.
6.7 Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
6.8 Specific Performance. Each party hereto hereby agrees that
any remedy at law for any breach of the provisions contained in this Agreement
shall be inadequate and that the other parties hereto shall be entitled to
specific performance and any other appropriate injunctive relief in addition to
any other remedy such party might have under this Agreement or at law or in
equity.
6.9 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
AHL SERVICES, INC.
By: /s/ X.X. Xxxxxxxxxxx, Xx.
------------------------------------
X.X. Xxxxxxxxxxx, Xx.
Chairman
EMPLOYEE
/s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
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