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EXHIBIT 10.26
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of April
15,1999 (the "Effective Date"), by and between MICRO GENERAL CORPORATION, a
Delaware corporation (the "Company"), and XXXX XXXXXXXX (the "Employee"), and
supersedes any and all prior employment agreements or understandings entered
into between the parties; provided, however, this Agreement shall not supersede
or otherwise affect (i) any Company options or other securities previously
granted the Employee or (ii) the terms and conditions of that certain Inducement
Agreement, dated August 11, 1998. In consideration of the mutual covenants and
agreements set forth herein, the parties agree as follows:
1. Employment and Duties. Subject to the terms and conditions of this
Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as the President and Chief Executive Officer of the Company,
and the Employee accepts such employment and agrees to perform such reasonable
responsibilities and duties commensurate with the aforesaid positions as
lawfully directed by the Company's Board of Directors (the "Board"), or as set
forth in the Bylaws of the Company.
2. Term. The term of this Agreement shall commence on the Effective Date
and shall continue for a period of three (3) years ending April 14, 2002,
subject to prior termination as set forth in Section 7, below (the "Term"). The
Term may be extended at any time upon mutual agreement of the parties.
3. Salary. During the Term, the Company shall pay the Employee a minimum
base annual salary of Two Hundred Fifty Thousand Dollars ($250,000), payable at
the times and in the manner dictated by the Company's standard payroll policies
(the "Base salary"). The Base Salary shall be periodically reviewed and
increased at the discretion of the Board to reflect, among other matters, cost
of living increases and performance results.
4. Other Compensation and Fringe Benefits. During the Term, as
additional compensation, the Employee shall be entitled to receive and
participate in the following:
(a) Incentive Bonus. A year-end bonus equal to ten percent (10%)
of the "audited pre-tax profits" of the Company for each calendar year during
the Term of this Agreement (the "Incentive Bonus"). For calendar year 1999 only,
the Incentive Bonus calculation shall be pro-rated for the period from the
Effective Date through December 31, 1999, but shall in no event be less than One
Hundred Fifty Thousand Dollars ($150,000). For calendar year 2002 only, he
Incentive Bonus calculation shall be pro-rated for the period from January 1,
2002 through the end of the Term. As used herein, "audited pre-tax profits"
shall mean the audited pre-tax profits of the Company determined by the
Company's outside accounting firm in accordance with generally accepted
accounting principles ("GAAP") applied on a consistent basis and will include
the results of the Company and its subsidiaries on a consolidated basis. In
addition, "audited pre-tax profits" shall be determined only after the amount of
the Employee's year-end Incentive Bonus has been taken into account by the
Company and shall be adjusted by deduction of supplementary bonuses and/or
advances paid to other "key" employee's of the Company for the applicable year
(which employees shall be designated and agreed upon by the Employee and the
Board). The accrual of the Incentive Bonus shall commence as of the Effective
Date. Although the Incentive Bonus is deemed earned on December 31 of the year
for which such bonus is being calculated, if the Employee's employment with the
Company is terminated pursuant to Section 7 below, whether voluntarily or
involuntarily, prior to December 31 of the year to which the Incentive
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Bonus relates, then the Company's obligation to pay the Employee all or a
portion of the Incentive Bonus for the year in which termination occurs shall be
governed by the appropriate provision of Section 7 below; provided, however,
that expiration of the Term shall not constitute a voluntary or involuntary
termination of employment. Any Incentive Bonus due for a given year of the term
shall be paid no later than April 15th of the following year (including no later
than April 15, 2003 for the pro-rated bonus earned in 2002); and
(b) Transaction Bonus. In connection with the sale or transfer to
a person or entity other than Fidelity National Financial Inc. ("FNFI") or its
"affiliates" (as defined in Section 21 below) of (i) all or a majority of the
outstanding capital stock or other equity interest of any subsidiary of the
Company; or (ii) all or substantially all of the assets of any material division
of the Company or any of its subsidiaries, the Company shall pay the Employee a
bonus (the "Transaction Bonus") equal to five percent (5%) of "Net Transaction
Proceeds." For purposes of this subsection (b), the term "Net Transaction
Proceeds" shall mean (A) the value of the consideration actually received by the
Company in connection with such transaction, less (B) the sum of (i) the
Company's cost basis, as determined by the Company's outside accounting firm in
accordance with GAAP, in the securities or assets being sold (the "Company's
Investment"), plus (ii) an amount equal to a ten percent (10%) cumulative
annualized rate of return on the Company's Investment. Notwithstanding anything
to the contrary above, the Transaction Bonus shall not apply to a sale or
transfer by the Company of the assets comprising the postal meter and/or postal
scale division of the Company. The Transaction Bonus shall be paid to the
Employee within ninety (90) days of the later of (i) the closing of the
applicable transaction; or (ii) the date on which the Company actually receives
at least eighty percent (80%) of the total consideration to be received in
connection with such transaction. In addition, the Transaction Bonus will be due
and payable to the Employee notwithstanding the termination of this Agreement if
(i) this Agreement is terminated (a) as a result of the failure by the Company
to extend the Term, (b) after the first full year of this Agreement, by either
the Company pursuant to Section 7(b) or the Employee for Good Reason pursuant to
Section 7(b), (c) as a result of the Employee's disability or death pursuant to
Sections 7(c) and 7(d), respectively and (ii) prior to such termination, the
transaction giving rise to the Transaction Bonus was reduced to a definitive
written agreement and the transaction closes within six (6) months of the date
of termination in substantial accordance with the terms of the written
agreement. Moreover, if this Agreement is terminated by the Employee under
Section 7(b) for any reason other than Good Reason, then the Transaction Bonus
will be due and payable to the Employee notwithstanding the termination of this
Agreement, provided the transaction in question formally closed prior to the
date of termination.
(c) Options. A grant on the Effective Date under the Company's
Executive Stock Option Plan of options to purchase Fifty Thousand (50,000)
shares of the Company's Common Stock. The exercise price for such options shall
be the closing price on the Effective Date of the Company's publicly traded
Common Stock. In addition, all such options shall vest options the Effective
Date, after which the Employee shall have ten (10) years to exercise the
options, subject to any terms to the contrary in the Company's Executive Stock
Option Plan; and
(d) Standard Benefits. The standard Company benefits enjoyed by
the Company's other senior executives; and
(e) Club Membership. Payment by the Company of the Employee's
membership dues in a social and/or recreational club as deemed necessary and
appropriate by the Employee (and pre-approved by the Company) to maintain
various business relationships on behalf of the Company;
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provided, however, that the Company shall not be obligated to pay for any of the
Employee's personal purchases and expenses at such club; and
(f) Medical Insurance. Provision by the Company during the Term
and any extensions thereof to the Employee and his dependents of the medical and
other insurance coverage provided by FNFI to its senior executives; and
(g) Life Insurance. The procurement of insurance on the
Employee's life in the amount of one million dollars ($1,000,000). The premiums
of such policy shall be paid by the Company and the Employee shall be entitled,
in his sole discretion, to designate the beneficiary of such policy. At the
Employee's request at the end of the Term, the Company will assign the insurance
policy to the Employee and the Employee shall have no obligation to the Company
in respect of premiums previously paid.
The Company shall deduct from all compensation payable under this Agreement to
the Employee any taxes or withholdings the Company is required to deduct
pursuant to applicable state and federal laws or by mutual agreement between the
parties.
5. Vacation. For and during each year of the Term and any extensions
thereof, the Employee shall be entitled to reasonable paid vacation periods
consistent with his position with the Company and in accordance with the
Company's standard policies, or such greater entitlement as the Board may
approve. In addition, the Employee shall be entitled to such holidays consistent
with the Company's standard policies or such greater entitlement as the Board
may approve.
6. Expense Reimbursement. In addition to the compensate and benefits
provided herein, the Company shall, upon receipt of appropriate documentation,
reimburse the Employee each month for his reasonable travel, lodging,
entertainment, promotion and other ordinary and necessary business expenses. The
arrangement set forth in this Section 6 is intended to constitute an accountable
plan within the meaning of Section 162 of the Internal Revenue Code, as amended
(the "Code"), and the accompanying regulations, and the Employee agrees to
comply with all reasonable guidelines established by the Company from time to
time to meet the requirements of Section 162 of the Code and the accompanying
regulations.
7. Termination.
(a) For Cause. Notwithstanding anything to the contrary contained
herein, the Company may terminate this Agreement immediately for "cause" upon
written notice to the Employee, in which event the Company shall be obligated to
pay the Employee that portion of the Base Salary due him through the date of
termination, and accrued and unpaid expense reimbursement pursuant to Section 6
hereof. For purposes of this Agreement, "cause" shall mean (i) a material breach
by the Employee of this Agreement, which breach is not cured within thirty (30)
days after written notice thereof from the Company to the Employee; (ii) the
repeated failure of the Employee to comply with the Company's lawful corporate
policies to the extent set forth in writing; (iii) misconduct, dishonesty,
insubordination, or any other act by the Employee that in any way has a direct
and substantial adverse effect on the Company's business or reputation, or its
relationship with its customers or employees, including, without limitation (a)
the use of alcohol such as to materially interfere with the Employee's
obligations hereunder, (b) the use of illegal drugs, or (c) conviction of a
felony or of any crime involving moral turpitude or theft; or (iv) the failure
by the Employee to comply with applicable laws or governmental regulations
pertaining to his employment hereunder which non-compliance has a material
adverse effect on the Company.
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(b) Without Cause. Either party may terminate this Agreement
immediately without cause by giving written notice to the other. If the Company
terminates under this Section 7(b) within the first (1st) full year of this
Agreement, then the Company shall only be obligated to pay to the Employee that
portion of the Base Salary due him through the date of termination, and accrued
and unpaid expense reimbursement pursuant to Section 6 hereof. If, after the
first (1st) full year of this Agreement, the Company terminates under this
Section 7(b) or if the Employee resigns for "Good Reason" (as defined below),
then the Company shall pay to the Employee an amount equal to the Base Salary in
effect as of the date of termination multiplied by the greater of (A) the number
of years (including partial years) remaining in the Term, or (B) the number two
(2); (ii) any pro-rated Incentive Bonus earned by the Employee through the date
of termination; (iii) any Transaction Bonus due the Employee in accordance with
the terms of Section 4(b); and (iv) accrued and unpaid expense reimbursement
pursuant to Section 6 hereof Such payment shall be made in a lump sum on or
before the fifth (5th) day following the date of termination, or as otherwise
directed by the Employee; provided, however, that the pro-rated Incentive Bonus
and the Transaction Bonus, if any, shall be paid in accordance with Sections
4(a) and 4(b), respectively. For purposes of this Section 4(b), the term "Good
Reason" shall mean a material and substantial reduction in the Employee's
responsibilities and duties hereunder, which reduction was not preapproved in
writing by the employee. If the Employee terminates under this Section 7(b)
other than for Good Reason, then the Company shall only be obligated to pay the
Employee (i) the Base Salary due him through the date of termination; (ii)
accrued and unpaid expense reimbursement pursuant to Section 6 hereof, and (iii)
any Transaction Bonus, provided the transaction in question formally closed
prior to the date of termination.
(c) Disability. If the Employee fails to perform his duties
hereunder on account of illness or other incapacity for a period of four (4)
consecutive months, then the Company shall have the right upon written notice to
the Employee to terminate this Agreement without further obligation by paying
the Employee (1) the Base Salary, without offset, for the remainder of the Term
in a lump sum or as otherwise directed by the Employee; (ii) any pro-rated
Incentive Bonus earned by the Employee through the date of termination; (iii)
any Transaction Bonus due the Employee in accordance with the terms of Section
4(b); and (iv) accrued and unpaid expense reimbursement pursuant to Section 6
hereof Such payment shall be made in a lump sum on or before the fifth (5th) day
following the date of termination, or as otherwise directed by the Employee;
provided, however, that the pro-rated Incentive Bonus and the Transaction Bonus,
if any, shall be paid in accordance with Sections 4(a) and 4(b), respectively.
(d) Death. If the Employee dies during the Term, then this
Agreement shall terminate immediately and the Employee's legal representatives
shall be entitled to receive (i) the Base Salary through the date of death (ii)
any pro-rated Incentive Bonus earned by the Employee through the date of death;
(iii) any Transaction Bonus due the Employee in accordance with the terms of
Section 4(b); and (iv) accrued and unpaid expense reimbursement pursuant to
Section 6 hereof. Such payment shall be made in a lump sum on or before the
fifth (5th) day following the date of death, or as otherwise directed by the
Employee's legal representative; provided, however, that the pro-rated Incentive
Bonus and the Transaction Bonus, if any, shall be paid in accordance with
Sections 4(a) and 4(b), respectively.
(e) Effect of Termination. Termination for any reason or for no
reason shall not constitute a waiver of the Company's or the Employee's rights
under this Agreement nor a release of the Employee from any obligation hereunder
except his obligation to perform his day-to-day duties as an employee. The
Company's payment obligations to the Employee under Section 7 shall survive any
such termination.
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8. Severance Payment.
(a) The Employee may terminate his employment hereunder in the
event of a if change in control of the Company," which, for purposes of this
Agreement, shall be deemed to have occurred if (i) there shall be consummated
(x) any consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation, or pursuant to which shares of the
Company's Common Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of the
Company's Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock of the surviving corporation immediately
after the merger, or (y) any sale, lease exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company, or (ii) the stockholders of the Company approve
any plan or proposal for the liquidation or dissolution of the Company, or (iii)
any "person" (such as that term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")), other than the Company,
FNFI or any "person" who, on the date hereof, is a director or officer of the
Company, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities, unless such
"person" acquires such securities from FNFI. The Employee may only terminate
this Agreement due to a change in control of the Company during the period
commencing 60 days and expiring 365 days after such change in control.
(b) If, after a change in control of the Company, the Company
terminates the Employee's employment in breach of this Agreement or pursuant to
Section 7(b), or the Employee resigns for Good Reason pursuant to Section 7(b),
then:
(i) the Company shall pay the Base Salary due him through
the date of termination;
(ii) in lieu of any further salary and bonus payments or
other payments due to the Employee for periods subsequent to the date of
termination, the Company shall pay, as severance to the Employee, an amount
equal to the product of (A) the Employee's Base Salary in effect as of the date
of termination plus the total Incentive Bonus paid or payable to the employee
for the most recently ended calendar year, multiplied by (B) the number 2, such
payment to be made in a lump sum on or before the fifth (5th) day following the
date of termination; and
(iii) the Company shall maintain in full force and effect,
for the continued benefit of the Employee for the number of years (including
partial years) remaining in the Term, all employee benefit plans and programs in
which the Employee was entitled to participate immediately prior to the date of
termination, provided that the Employee's continued participation is possible
under the general terms and provisions of such plans and programs. In the event
that the Employee's participation in any such plan or program is prohibited, the
Company shall, at it's expense, arrange to provide the Employee with benefits
substantially similar to those which the Employee would otherwise have been
entitled to receive under such plans and programs from which his continued
participation is prohibited.
(c) The Employee shall not be required to mitigate the amount of
any payment provided for in this Section 8 or Section 7(b), above, by seeking
other employment or otherwise, nor
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shall any compensation or other payments received by the Employee after the date
of termination reduce any payments due under this Section 8 or Section 7(b),
above.
(d) Notwithstanding anything to the contrary herein, if any
payment pursuant to this Section 8 would be a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code of 1986, as amended), such payment
shall be limited to the largest portion of such payment as can be paid without
being deemed a "parachute payment."
9. Non-Delegation of Employee's Rights. The obligations, rights and
benefits of the Employee hereunder are personal and may not be delegated,
assigned or transferred in any manner whatsoever, nor are such obligations,
rights or benefits subject to involuntary alienation, assignment or transfer.
10. Confidential Information. The Employee acknowledges that 'n his
capacity as an employee of the Company he will occupy a position of trust and
confidence and he further acknowledges that he will have access to and learn
substantial information about the Company and its "affiliates" (as defined in
Section 21 below) and their respective operations that is confidential or not
generally known in the industry including, without limitation, information that
relates to purchasing, sales, customers, marketing, and the Company's and its
affiliates' financial position and financing arrangements (the "Confidential
Information"). The Employee agrees that all such Confidential Information is
proprietary or confidential, or constitutes trade secrets and is the sole
property of the Company and/or its affiliates. The Employee will keep
confidential, and will not reproduce, copy or disclose to any other person or
entity, any such Confidential Information, nor will the Employee advise, discuss
with or in any way assist any other person or entity in obtaining or learning
about any such Confidential Information; provided, however, that the Employee
(i) shall be able to use the Confidential Information in the course of
performing his duties hereunder; and (ii) may disclose any Confidential
Information pursuant to any law, subpoena or regulation. Accordingly, the
Employee agrees that during the Term and at all times thereafter he will not
disclose, or permit or encourage anyone else to disclose, any such information,
nor will he utilize any such information, either alone or with others, outside
the scope of his duties and responsibilities with the Company. The term
"Confidential Information" shall not include (i) any information available to
the general public; or (ii) any information known by the Employee prior to the
date he became a member of the Board which was obtained from a source who was
not bound by a confidentiality obligation to the Company.
11. Non-Competition During Employment Term. The Employee agrees that,
during the Term and any extensions thereof, he will devote substantially all his
business time and effort, and give undivided loyalty, to the Company.
Notwithstanding anything to the contrary in the preceding sentence, the Employee
shall be entitled to (i) be on the Board of Directors of the companies that are
disclosed on Schedule I hereto; and (ii) spend time on charitable and community
organizations that do materially not interfere with the Employee's perfon-xxxxx
of his obligations hereunder. During the Term, the Employee will not engage in
any way whatsoever, directly or indirectly (other than being on the Board of
Directors of the companies set forth on Schedule I hereto), in any business that
is competitive with the Company or its affiliates, nor solicit, or in any other
manner work for or assist any business which is competitive with the Company or
its affiliates. In addition, during the Tenn and any extensions thereof, the
Employee will undertake no planning for or organization of any business activity
competitive with the work he perfon-ns as an employee of the Company, and the
Employee will not combine or conspire with any other employee of the Company or
any other person for the purpose of organizing any such competitive business
activity.
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12. Non-Solicitation After Employment Term. The parties acknowledge that
the Employee will acquire substantial knowledge and information concerning the
business of the Company and its affiliates as a result of his employment. The
parties further acknowledge that the scope of business in which the Company is
engaged as of the Effective Date is national and very competitive and one in
which few companies can successfully compete. The solicitation of the Company's
customers or employees by the Employee after this Agreement is terminated would
severely injure the Company. Accordingly, for a period of one (1) year after
this Agreement is terminated or the Employee leaves the employment of the
Company for any reason whatsoever, the Employee agrees not to solicit any person
or business that was at the time of such termination and remains a customer or
prospective customer, or an employee of the Company or any of its affiliates,
except for the Employee's administrative assistant.
13. Return of Company Documents. Upon termination of this Agreement,
Employee shall return promptly to the Company all records and documents of or
pertaining to the Company and shall not make or retain any copy or extract of
any such record or document.
14. Improvements and Inventions. Any and all improvements or inventions
which the Employee may conceive, make or participate in during the period of his
employment, which are based upon or relate to such employment, shall be the sole
and exclusive property of the Company. The Employee will, whenever requested by
the Company, at the sole cost and expense of the Company, execute and deliver
any and all documents which the Company shall deem appropriate in order to apply
for and obtain patents for such improvements or inventions or in order to assign
and convey to the Company the sole and exclusive right, title and interest in
and to such improvements, inventions, patents or applications.
15. Actions. The parties agree and acknowledge that the rights conveyed
by this Agreement are of a unique and special nature and that the Company will
not have an adequate remedy at law in the event of a failure by the Employee to
abide by its terms and conditions nor will money damages adequately compensate
for such injury. It is therefore agreed between the parties that, in the event
of a breach by the Employee of any of his obligations contained in this
Agreement, the Company shall have the right, among other rights, to damages
sustained thereby and to obtain an injunction or decree of specific performance
from any court of competent jurisdiction to restrain or compel the Employee to
perform as agreed herein. The Employee agrees that this Section 14 shall survive
the termination of his employment and he shall be bound by its ten-ns at all
times subsequent to the termination of his employment for so long a period as
Company continues to conduct the same business or businesses as conducted during
the Ten-n or any extensions thereof Nothing herein contained shall in any way
limit or exclude any other right granted by law or equity to the Company.
16. Indemnification. For the period commencing on the Effective Date and
continuing for five (5) years following the expiration or prior termination of
this Agreement, regardless of the reason therefor, the Employee shall be
indemnified under the Company's Articles of Incorporation and Bylaws, and the
Employee shall be covered by the directors' and officers' liability insurance,
the fiduciary liability insurance and the professional liability insurance
policies that are the same as, or provide coverage at least equivalent to, those
applicable or made available by the Company to the senior management of the
Company. Independent of the above provisions, if at any time the Employee is
made, or threatened to be made, a party to any legal action or proceeding,
whether civil or criminal, by reason of the fact that the Employee is or was a
director or officer of the Company, then the Employee shall be indemnified by
the Company, and the Company pay the Employee's related expenses (including,
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without limitation, reasonable attorneys' fees and costs) when and as incurred,
all to the fullest extent permitted by law.
17. Amendment. This Agreement contains, and its terms constitute, the
entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement.
18. Governing Law. California law shall govern the construction and
enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be adjudicated in courts located in
California.
19. Severability. If any section, subsection or provision hereof is
found for any reason whatsoever to be invalid or inoperative, that section,
subsection or provision shall be deemed severed and shall not affect the force
and validity of any other provision of this Agreement. If any covenant herein is
determined by a court to be overly broad thereby making the covenant
unenforceable, the parties agree and it is their desire that such court shall
substitute a reasonable judicially enforceable limitation in place of the
offensive part of the covenant and that as so modified the covenant shall be as
fully enforceable as if set forth herein by the parties themselves in the
modified form. The covenants of the Employee in this Agreement shall each be
construed as an agreement independent of any other provision in this Agreement,
and the existence of any claim or cause of action of the Employee against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of the covenants in this Agreement.
20. Notices. Any notice, request, or instruction to be given hereunder
shall be in writing and shall be deemed given when personally delivered or three
(3) days after being sent by United States certified mail, postage prepaid, with
return receipt requested, to the parties at their respective addresses set for
the below:
To the Company: Micro General Corporation
0000 Xxxxx Xxx Xxxx Xxxxxx
Xxxxx Xxx, XX 00000
With a copy to: Xxxxxxx X. Xxxx, Esq.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
To the Employee: Xxxx Xxxxxxxx
--------------------------------------
--------------------------------------
With a copy to: Xxxxxx Xxxx Xxxxxxxx, Esq.
Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
20. Waiver of Breach. The waiver by any party of any provisions of this
Agreement shall not operate or be construed as a waiver of any prior or
subsequent breach by the other party.
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21. Definition of "Affiliate". For purposes of this Agreement, the term
"affiliate" shall mean a person or entity that directly or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Company.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS VMEREOF the parties have executed this Agreement to be
effective as of the date first set forth above.
MICRO GENERAL CORPORATION
By:
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Its:
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XXXX XXXXXXXX
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