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EXHIBIT 10.8
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FORM OF
RETIREMENT AGREEMENT
This RETIREMENT AGREEMENT (this "Agreement or this "Retirement
Agreement") is made and entered into as of the 13th day of February 2000, by and
between PERSONNEL GROUP OF AMERICA, INC., a Delaware corporation with its
principal place of business in Charlotte, North Carolina, ("the Company"), and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ("Employee").
STATEMENT OF PURPOSE
Employee has served as an officer, director and employee of the
Company. Employee desires to retire and resign from all of his current positions
with the Company, and Company has agreed to accept Employee's retirement and
resignation, on the terms and conditions set forth below.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the Company and
Employee hereby agree as follows:
1. Date of Termination. Employee hereby retires and resigns from all
executive positions and capacities with the Company and/or the Company's
subsidiaries, including without limitation as an officer and director of the
Company and the Company's subsidiaries, and the Company hereby accepts all such
resignations, and all such resignations are deemed to be effective, as of
February 13, 2000 (the "Retirement Date"). From the Retirement Date through
April 13, 2000 (the "Employment Termination Date"), Employee shall be deemed,
for purposes of salary and certain other benefits expressly provided herein, a
non-executive employee of the Company, entitled to certain benefits expressly
provided herein. Employee hereby resigns his employment with the Company and the
Company's subsidiaries in all capacities, effective as of the Employment
Termination Date.
2. Consulting; Term; Duties. For the period beginning as of the
Employment Termination Date and continuing through April 13, 2002 (the
"Consulting Period"), Employee will act as a consultant and general advisor to
the Company and its subsidiaries on all matters pertaining to the business
conducted by the Company and to the retention of selected employees and the
goodwill and business of the customers and suppliers of the Company and its
subsidiaries. Employee will use his best efforts to maintain the goodwill of the
customers and suppliers of the Company and its subsidiaries and to provide for a
smooth and orderly transition of power and responsibility to Employee's
successor as selected by the Company. Employee will be available to perform
services hereunder on an as needed basis upon the reasonable request of the
Company.
3. Retirement Payments and Other Benefits. Subject to Employee's full
compliance with the terms of this Agreement, including the conditions set forth
below, Employee shall be entitled to the following benefits:
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(a) Salary Continuation. The Company shall continue to pay the
current base salary of Employee ($385,000 per year) from the Retirement Date
through the end of the Consulting Period. These salary continuation payments
shall be payable at times and in accord with the regular payroll practices of
the Company with respect to its executive officers. All such payments shall be
subject to, and reduced by, any applicable federal and state withholding taxes
and other charges for health and other benefits as applicable.
(b) Stock Options. All outstanding options to purchase the
Company's common stock that have been granted to Employee prior to the
Retirement Date and are summarized on Exhibit A attached hereto (collectively,
the "Options") shall continue to be outstanding and shall continue to vest and
become exercisable in accordance with their respective stated vesting schedules
from the Retirement Date throughout the Consulting Period. Employee shall be
entitled to exercise such Options, according to the terms thereof, to the extent
then vested as of the end of the Consulting Period, at any time prior to the
90th day following the end of the Consulting Period (the "Option Expiration
Date"). After the Option Expiration Date, all unexercised Options held by
Employee shall expire.
(c) SERP Benefit. Effective on the last day of the Consulting
Period, Employee shall be entitled to an annual benefit under that certain
Supplemental Retirement Plan for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., effective as of January
1, 1999 (the "SERP"), as if Employee's retirement had occurred on the last day
of the Consulting Period, which benefit would be $150,000 annually, payable in
accordance with the terms of the SERP, for a period of 15 years following the
end of the Consulting Period; provided, however, that notwithstanding the terms
of the SERP, Employee and the Company agree as follows: (1) in no event will the
maximum benefit payable to Employee under the SERP exceed $150,000 per year; (2)
in the event Employee becomes entitled to a benefit under the SERP because of,
or upon the occurrence of, a Change of Control (as defined in the SERP), the
amount of such benefit will be $150,000 per year (irrespective of when such
Change of Control occurs); and (3) the term "employment agreement" in subsection
(a) of Section 2.02 of the SERP, which provides that Employee's benefit may be
forfeited in the event Employee engages in competition with the Company in
violation of his employment agreement, shall be deemed to mean and include this
Agreement. The Company and Employee agree that the SERP is hereby amended if,
and to the extent, necessary to give effect to this Agreement.
(d) Company Property. Employee agrees that, on or prior to
April 13, 2000, he will purchase from the Company, at book value as set forth on
Exhibit B, attached hereto (or exchange, in the manner set forth in Exhibit B),
all Company property set forth on Exhibit B hereto. Employee may continue to use
his Company-issued cellular phone for business-related purposes through April
13, 2000, and shall return such phone to the Company immediately after April 13,
2000.
(e) Company Car. From the Retirement Date through May 9, 2000,
Employee shall be entitled to receive a $1,200 monthly car allowance, which will
be payable towards existing lease payments on the Employee's leased Mercedes
S500 Sedan. As of May 9, 2000, Employee shall either (i) return such vehicle to
the Company for surrender in accordance with the terms of
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such lease or (ii) purchase such vehicle upon payment by Employee of the
residual value and all other fees and expenses required for purchase and payoff
under the terms of such lease.
(f) Health Care Benefits. From and after the Retirement Date,
Employee and his spouse and dependents shall be entitled to continue to be
covered by the Company's group health, dental and life insurance provided to the
Company's executive employees, at the same coverage level and on the same terms
and conditions as in effect on the Retirement Date or as available upon any
amendment of such insurance plans applicable to all executive employees of the
Company (including without limitation, Employee's payment of his portion of
applicable premiums), until the earlier of (i) such time as Employee obtains
alternative comparable coverage under another group plan, which coverage does
not contain any pre-existing condition exclusions or limitations, or (ii) the
end of the Consulting Period. Upon the termination of the benefits coverage
under the preceding sentence, Employee and his spouse and dependents shall be
entitled to obtain, at Employee's sole cost and expense, continuation coverage
under the Company's health insurance plan pursuant to Section 4980B of the
Internal Revenue Code of 1986, as amended, and under any other applicable law,
to the extent required by such laws, as if Employee had terminated employment
with the Company on the date such benefits coverage terminates. Employee agrees
to cooperate with the Company in discharging its obligations hereunder and, in
that connection, to execute any required forms or applications, and to submit
required underwriting information, should they be required by any insurer
hereunder.
(g) Other Benefits. Except as expressly set forth herein,
after the Retirement Date, Employee shall not have the right to participate in
or receive any other benefit under any employee benefit plan of the Company, any
fringe benefit plan of the Company, or any other plan, policy or arrangement of
the Company providing benefits or perquisites to employees of the Company
generally or individually. Specifically, without limitation, Employee shall not
be entitled to payment of any cash bonus, any payment for accrued but unused
vacation time or paid time off or any continuation of Company-paid country club
or dining club membership fees or dues, and Employee shall not be allowed to
continue to participate in the Company's Employee Stock Purchase Plan; provided,
however, that the following benefits will continue from the Retirement Date
through, and terminate effective as of, April 13, 2000: the Company will
continue payment of Employee's existing Carmel Country Club dues and Tower Club
dues (including a pro-rated amount of such dues for April 2000).
EMPLOYEE ACKNOWLEDGES AND AGREES THAT THE COMPANY'S OBLIGATION TO
PROVIDE ALL BENEFITS AND PAYMENTS TO EMPLOYEE PURSUANT TO THIS AGREEMENT IS
EXPRESSLY CONDITIONED UPON EMPLOYEE'S COMPLIANCE IN FULL WITH ALL OF EMPLOYEE'S
OBLIGATIONS HEREUNDER, AND THAT ANY FAILURE OF EMPLOYEE TO COMPLY IN FULL WITH
ALL SUCH OBLIGATIONS WILL CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT, WILL
RELEASE THE COMPANY FROM ANY FURTHER OBLIGATION TO PROVIDE ANY SUCH BENEFITS AND
PAYMENTS.
4. Return of Company Property. All records, files, lists, including
computer generated lists, drawings, notes, notebooks, letters, handbooks,
blueprints, manuals, sketches,
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specifications, formulas, financial documents, sales and business plans,
customer lists, lists of customer contacts, pricing information, computers,
software, cellular phones, credit cards, keys, equipment and similar items
relating to the Company's business, together with any other property of the
Company or property which the Employee received in the course of Employee's
employment with the Company (except as may be purchased by Employee pursuant to
Section 3 hereof), shall be returned to the Company immediately after the
Retirement Date (or, in the case of Company property with respect to which
Employee's usage or benefit has been extended under the terms of Section 3,
hereof, immediately upon the termination of such benefit continuation period).
Employee further represents that Employee will not copy or cause to be copied,
print out or cause to be printed out any software, documents or other materials
originating with or belonging to the Company. Employee will cease usage of all
Company credit cards as of the Retirement Date, and the Company may deactivate
or cancel all such account or access numbers pertaining to any Company credit
cards in Employee's possession as of the Retirement Date.
5. Confidentiality and Nondisparagement. Employee agrees not to make
any statement, written or oral (including but not limited to any media source),
regarding any of the following subjects without the prior approval of the Board
of Directors of the Company: (a) any of the circumstances leading up to or
surrounding Employee's retirement or resignation from the Company; or (b) the
terms of this Agreement. Furthermore, Employee, for the good and valuable
consideration furnished herein, agrees not to disparage, bring into disrepute or
make any negative statement concerning the Company or any of its employees,
officers or directors or make any other statement that would disrupt, impair or
affect adversely the reputation, business interests, or profitability of the
Company, or its employees, officers or directors, or place the Company or such
individuals in any negative light. Any breach of this Agreement by Employee
shall constitute a material breach of this Agreement, and shall permit the
Company to cease all payments to Employee hereunder.
6. Release. As consideration for the payments to be made by the Company
to Employee pursuant to Section 3 hereof, Employee agrees for Employee and for
Employee's heirs, executors, administrators and assigns, to release and forever
discharge the Company and all of its parent and subsidiary corporations,
together with each of their respective agents, officers, employees, directors
and attorneys, from and to waive any and all rights with respect to all manner
of claims, actions, causes of action, suits, judgments, rights, demands, debts,
damages, or accountings of whatever nature, legal, equitable or administrative,
whether the same are now known or unknown, which Employee ever had, now has or
may claim to have, upon or by reason of the occurrence of any matter, cause or
thing whatsoever up to the date of this Agreement, including without limitation:
(i) any claim whatsoever (whether under federal or state statutory or common
law) arising from or relating to Employee's employment or changes in Employee's
employment relationship with the Company, including Employee's retirement,
separation, termination or resignation therefrom, (ii) all claims and rights for
additional compensation or benefits of whatever nature; (iii) any claim for
breach of contract, implied or express, impairment of economic opportunity,
intentional or negligent infliction of emotional distress, wage or benefit
claim, prima facie tort, defamation, libel, slander, negligent termination,
wrongful discharge, or any other tort, whether intentional or negligent; (iv)
all claims and rights under Title VII of the Civil Rights Act of
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1964, the Civil Rights Acts of 1866, 1871, or 1991, the Age Discrimination in
Employment Act, the Employee Retirement Income Security Act, the Americans With
Disabilities Act of 1993, the Family and Medical Leave Act, all as amended, or
any other federal, state, county or municipal statute or ordinance relating to
any condition of employment or employment discrimination; and (v) all claims
under any employment agreement between Employee and the Company; provided,
however, that this release shall not (i) include any claims relating to the
obligations of the Company under this Agreement or (ii) operate to release
Employee's ownership of any common stock or, to the extent provided herein,
options to acquire common stock of the Company.
7. Acknowledgement of Waiver of Rights. Employee acknowledges that
Employee's waiver of rights and claims under this Agreement includes a waiver of
rights and claims under the Federal Age Discrimination in Employment Act of
1967, as amended, and that such waiver and the waiver and release of all other
rights and claims contemplated by the release set forth in Section 6 above are
made knowingly and voluntarily. Employee acknowledges that he has been given a
period of at least twenty-one (21) days to consider the provisions of the
release stated above, and to consult with Employee's attorney, accountant, tax
advisor, spouse or other persons prior to making a decision to sign this
Agreement. Employee further acknowledges that the Company has not pressured or
coerced Employee to execute this Agreement prior to the expiration of 21 days
from the date it was furnished to Employee and that any decision to execute this
Agreement prior to such time has been made freely and voluntarily. Employee
certifies that the Company has advised Employee in writing to consult with an
attorney regarding the legal consequences of the execution of this Agreement.
8. Governing Law and Forum Selection. Employee agrees that any claim
against the Company or any of its affiliates or their employees arising out of
or relating in any way to this Agreement or to Employee's employment with the
Company shall be brought exclusively in the Superior Court of Mecklenburg
County, North Carolina, or the United States District Court for the Western
District of North Carolina, and in no other forum. Employee hereby irrevocably
consents to the personal and subject matter jurisdiction of these courts for the
purpose of adjudicating any claims subject to this forum selection clause.
Employee also agrees that any dispute of any kind arising out of or relating to
this Agreement or to Employee's employment (including without limitation any
claim released herein by Employee) shall at the Company's sole election or
demand be submitted to final, conclusive and binding arbitration before and
according to the rules then prevailing of the American Arbitration Association
in Mecklenburg County, North Carolina, which election or demand may be made by
the Company at any time prior to the last day to answer and/or respond to a
summons and/or complaint or counterclaim made by Employee. The results of any
such arbitration proceeding shall be final and binding both upon the Company and
upon Employee, and shall be subject to judicial confirmation as provided by the
Federal Arbitration Act and/or the terms of Chapter 1, Article 45A of the North
Carolina General Statutes, which are incorporated herein by reference.
9. Entire Agreement. This Agreement contains the entire agreement
between the Company and Employee and supersedes all prior agreements relating to
the subject matter hereof or otherwise, specifically including, without
limitation, that certain Employment Agreement dated as of September 29, 1995 (as
amended), between the Company and Employee and any stock option
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agreements relating to the Options between Employee and the Company, all of
which are hereby expressly terminated, and may be changed only by a writing
signed by the parties hereto. Any and all prior representations, statements and
discussions regarding the subject matter of this Retirement Agreement have been
merged into and replaced by the terms of this Retirement Agreement.
10. Further Conditions. The obligations of the Company set forth in
this Agreement, including specifically in Section 3 hereof, are conditional upon
Employee's execution and full ratification of this Agreement, including the
release set forth herein, no later than twenty-one (21) days following the date
on which this Agreement is submitted to Employee, as well as upon Employee's
failure to revoke the same following the expiration of seven days following such
execution. In the event that Employee fails to execute this Agreement within
such 21-day period or revokes the execution thereof within seven days following
such execution thereof, the Company's obligations hereunder shall be null and
void.
11. Severability. If any of the provisions set forth in this Agreement
shall be held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein; provided, however, that
this provision shall not affect Employee's ability to ratify any provision of
this Agreement.
12. Confidential Information, Non-Solicitation and Non-Competition.
(a) From the date hereof through and including February 13,
2004, Employee shall not, except as may be required to perform his duties
hereunder or as required by applicable law, disclose to others or use, whether
directly or indirectly, any Confidential Information regarding the Company.
"Confidential Information" shall mean information about the Company, its
subsidiaries and affiliates, and their respective clients and customers that is
not available to the general public and that was learned by Employee in the
course of his employment by the Company, including (without limitation) any
proprietary knowledge, trade secrets, data, formulae, information, and client
and customer lists and all papers, resumes, records (including computer records)
and the documents containing such Confidential Information. Employee
acknowledges that such Confidential Information is specialized, unique in nature
and of great value to the Company, and that such information gives the Company a
competitive advantage.
(b) From the date hereof through and including February 13,
2004, Employee shall not, directly or indirectly (e.g., as an advisor,
principal, agent, partner, officer, director, shareholder, employee, member of
any association or otherwise) engage in, work for, consult, provide advice or
assistance or otherwise participate in a business that provides commercial
staffing, commercial permanent placement, information technology consulting,
information technology staffing or information technology permanent placement
services in the following geographic areas: (i) each and every city in which the
Company (which, for purposes of this Section 12, shall mean and include the
Company and its subsidiaries and affiliates) has an office or place of business
as of the Retirement Date; (ii) each and every county in which each of the
cities described in Section 12(b)(i) above is located; (iii) a 50-mile radius
outside the boundary limits of each city described in Section 12(b)(i) above;
and (iv) a 50-mile radius outside the boundary limits
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of each county described in Section 12(b)(ii) above. Employee further agrees
that during such period he will not assist or encourage any other person in
carrying out any activity that would be prohibited by the foregoing provisions
of this Section 12 if such activity were carried out by Employee and, in
particular, Employee agrees that he will not induce any employee of the Company
to carry out any such activity; provided, however, that the "beneficial
ownership" by Employee, either individually or as a member of a "group," as such
terms are used in Rule 13d of the General Rules and Regulations under the
Securities Exchange Act of 1934, of not more than five percent (5%) of the
voting stock of any publicly held corporation shall not be a violation of this
Agreement. It is further expressly agreed that the Company will or would suffer
irreparable injury if Employee were to compete with the Company or any
subsidiary or affiliate of the Company in violation of this Agreement and that
the Company would by reason of such competition be entitled to injunctive relief
in a court of appropriate jurisdiction, and Employee further consents and
stipulates to the entry of such injunctive relief in such a court prohibiting
Employee from competing with the Company or any subsidiary or affiliate of the
Company in violation of this Agreement.
(c) From the date hereof through and including February 13,
2004, Employee shall not, directly or indirectly, influence or attempt to
influence customers or suppliers of the Company or any of its subsidiaries or
affiliates, to divert their business to any competitor of the Company.
(d) Employee recognizes that he will possess confidential
information about other employees of the Company relating to their education,
experience, skills, abilities, compensation and benefits, and interpersonal
relationships with customers of the Company. Employee recognizes that the
information he will possess about these other employees is not generally known,
is of substantial value to the Company in developing its business and in
securing and retaining customers, and was acquired by him because of his
business position with the Company. Employee agrees that, from the date hereof
through and including February 13, 2004, he will not, directly or indirectly,
solicit or recruit any employee of the Company for the purpose of being employed
by him or by any competitor of the Company on whose behalf he is acting as an
agent, representative or employee and that he will not convey any such
confidential information or trade secrets about other employees of the Company
to any other person.
(e) If it is determined by a court of competent jurisdiction
in any state that any restriction in this Section 12 is excessive in duration or
scope or is unreasonable or unenforceable under the laws of that state, it is
the intention of the parties that such restriction may be modified or amended by
the court to render it enforceable to the maximum extent permitted by the law of
that state.
(f) Employee acknowledges that he has been informed of the
time, territory, scope and other essential requirements of the restrictions in
this Section 12 in connection with this Agreement, and Employee further
acknowledges that he has received sufficient and valuable consideration for his
agreement to such restrictions.
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13. Voluntary Agreement. Employee hereby represents that Employee has
carefully read and completely understands the provisions of this Agreement and
that Employee has entered into this Agreement voluntarily and without any
coercion whatsoever, and in order to receive certain benefits not otherwise owed
to Employee by the Company. Employee represents that he has been advised of his
right to secure counsel to assist in his reviewing this Agreement, that he has
retained counsel so to advise him, that he has had sufficient time to review
carefully each of the provisions hereto with his counsel, and that his execution
hereof is the product of his own free will and volition.
14. Assistance and Cooperation. Employee agrees to cooperate with and
provide assistance to the Company and its legal counsel in connection with any
litigation (including arbitration or administrative hearings) or investigation
affecting the Company, in which, in the reasonable judgment of the Company's
counsel, Employee's assistance or cooperation is needed. Employee shall, when
requested by the Company, provide testimony or other assistance and shall travel
at the Company's request in order to fulfill this obligation; provided, however,
that, in connection with such litigation or investigation, the Company shall
attempt to accommodate Employee's schedule, shall provide him with reasonable
notice in advance of the times in which his cooperation or assistance is needed,
and shall reimburse Employee for any reasonable expenses incurred in connection
with such matters. In addition, during the time he is receiving the payments set
forth in Section 3 herein, Employee agrees to cooperate fully with the Company
on all matters relating to his employment and the conduct of the Company's
business. This obligation to cooperate, however, shall not be considered to
prohibit or restrict other employment by the Employee, except as is set forth in
Section 12 herein.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, or caused this Agreement to be duly executed by their authorized
representatives as of the day and year first above written.
COMPANY:
[CORPORATE SEAL] PERSONNEL GROUP OF AMERICA, INC.
Attest:
By: __________________________________
Position: ____________________________
______________________________
____________________ Secretary
EMPLOYEE:
_______________________________ (SEAL)
WITNESS: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
______________________________
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EXHIBIT A
OPTIONEE STATEMENT PERSONNEL GROUP OF AMERICA, INC.
EXERCISABLE AS OF 3/27/2000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SSN ###-##-####
GRANT EXPIRATION GRANT OPTIONS OPTION OPTIONS OPTIONS
DATE DATE PLAN ID TYPE GRANTED PRICE OUTSTANDING VESTED
----- ---------- ------- ----- ------- ------ ----------- -------
9/25/1995 9/25/2005 Non-Qualified 357,144 $7.0000 357,144 357,144 CURRENT
9/26/1996 9/26/2006 Non-Qualified 440,000 $12.4700 440,000 352,000 CURRENT
88,000 ON 9/26/2000
1/2/1997 1/2/2007 Non-Qualified 103,634 $11.5900 103,634 103,634 CURRENT
9/26/1997 9/26/2007 Incentive 23,696 $16.8750 23,696 11,848 CURRENT
5,924 ON 9/26/2000
5,924 ON 9/26/2001
9/26/1997 9/26/2007 Non-Qualified 76,304 $16.8750 76,304 38,152 CURRENT
19,076 ON 9/26/2000
19,076 ON 9/26/2001
12/31/1997 12/31/2007 Incentive 6,236 $16.0313 6,236 6,236 CURRENT
12/31/1997 12/31/2007 Non-Qualified 72,680 $16.0313 72,680 72,680 CURRENT
9/28/1998 9/28/2008 Incentive 100,000 $12.2500 100,000 25,000 CURRENT
25,000 ON 9/28/2000
25,000 ON 9/28/2001
25,000 ON 9/28/2002
12/31/1998 12/31/2008 Incentive 17,114 $17.5313 17,114 17,114 CURRENT
9/28/1999 9/28/2009 Incentive 25,000 $5.3100 25,000 0 CURRENT
6,250 ON 9/28/2000
6,250 ON 9/28/2001
6,250 ON 9/28/2000
6,250 ON 9/28/2003
12/8/1999 12/8/2009 Incentive 25,000 $9.0000 25,000 0 CURRENT
6,250 ON 12/8/2000
6,250 ON 12/8/2001
6,250 ON 12/8/2002
6,250 ON 12/8/2003
TOTALS 1,246,808 1,246,808 983,808
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EXHIBIT B
COMPANY PROPERTY
Property Book Value
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*IBM 600 laptop computer $ 3,198.00
*Battery $ 216.00
*A/C Adaptor $ 65.00
*Docking Station $ 868.00
*Mouse and Keyboard $ 108.00
*Laser Printer $ 659.00
*Monitor $ 1,074.00
*Chair $ 818.00
*Employee and the Company agree that these items may, collectively, be exchanged
by Employee in an even exchange with the Company for Employee's existing
membership and all related rights in the Charlotte Motor Speedway's Speedway
Club.
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