College Bound Student Alliance, Inc
Form 10-KSB for Fiscal Year Ended July 31, 2002
Exhibit 10.14
COLLEGE BOUND STUDENT ALLIANCE, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
of
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THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of October 1,
2001, by and between College Bound Student Alliance, Inc., a Nevada corporation
(the "Company"), with an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇, a resident of the State of Colorado, with an
address at ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Employee").
In consideration of the premises and mutual covenants contained herein, the
parties agree as follows:
1. Employment. For a term of five (5) years from the date above (the
"Effective Date"), with automatic annual extensions thereafter, unless either
party gives notice to the other no less than thirty (30) days before the end of
any term that this agreement will not be renewed, Employee shall be employed as
the President of the Company, and shall have the duties and responsibilities
customary to someone in that position, including the duties and responsibilities
set forth on Schedule 1, subject to the Company's right to expand, limit, or
change such duties; provided that it is envisioned by Employee and Company that
Employee shall become the Chief Executive Officer ("CEO") of Company by the end
of the first year of the term of this Agreement, premised upon acceptable
performance by Employee under this Agreement and otherwise as determined by
Company's Board of Directors in its sole and absolute discretion. Company and
Employee understand and agree that Employee is considered to be part of
executive and management personnel of Company and/or professional staff as
contemplated by C.R.S. ss. 8-2-113(2)(d), a copy of which is attached hereto as
Schedule 2 and incorporated into the terms hereof by this reference. During the
term of employment hereunder, Employee shall report to the current Chief
Executive Officer of the Company and/or the Board of Directors and shall devote
his best efforts and full business time and attention to the business and
affairs of the Company, excluding time off for vacation (four (4) weeks per year
pro-rated after the first ninety (90) days of the term of this Agreement) and
reasonable time off for illness and sick days in accordance with the Company's
policies in effect from time to time. Employee shall perform his duties and
responsibilities to the Company hereunder to the best of his abilities in a
diligent, trustworthy, businesslike, and efficient manner.
Employee understands that the employment hereunder and all terms of this
Employment Agreement shall be subject to a ninety (90) day trial period during
which time the employment hereunder may be terminated immediately by either the
Employee or the Company for any lawful reason or no reason at all, without prior
notice and without any further liability. Should Employee's employment hereunder
be terminated by the Company during the ninety (90) day trial period, Employee
shall receive only the base salary compensation for the period of time during
which he was employed by the Company and shall not receive any deferred
compensation, stock options, bonuses, or any other incentives.
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2. Compensation and Benefits.
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a. (1) Employee's Base Salary. In consideration for rendering the services
as set forth herein, Employee shall receive an annual base salary in the
following amount as the case may be: (i) when serving as President, in the
amount of One Hundred and Twenty Thousand ($120,000) Dollars per year, of which
Seventy-Two Thousand ($72,000) Dollars shall be paid semi-monthly in arrears,
and the remaining Forty-Eight Thousand ($48,000) Dollars deferred and payable in
accordance with paragraph 2.b. below; and (ii) when serving as CEO, in the
amount of One Hundred and Sixty Thousand ($160,000) Dollars per year of which
Employee will receive the deferral portion of said One Hundred and Sixty
Thousand ($160,000) Dollars compensation on a basis proportional to receipt of
deferred compensation by the other key principals of the Company. All amounts
payable to Employee as salary, bonus, and other compensation hereunder shall be
subject to taxes and customary withholding by the Company. Employee's salary
will be reviewed by the Company and Employee annually on each anniversary of the
effective date of the Agreement and shall be adjusted only upon mutual agreement
of the parties.
(2) Signing Bonus. Employee shall also receive a signing bonus of Fifty
Thousand ($50,000) Dollars which shall be deferred and paid in accordance with
paragraph 2.b. below.
b. Deferred Compensation. The deferred compensation referenced in
subparagraph (a) above shall be payable to Employee upon the earlier to occur of
(i) November 1, 2002 (provided Employee is employed by Company on such date
pursuant to this Agreement); or (ii) upon Company obtaining equity financing in
the amount of at least One Million Five Hundred Thousand ($1,500,000) Dollars;
or (iii) upon Employee's termination of employment pursuant to this Agreement if
Employee is terminated "without cause" by Company subsequent to the initial
ninety (90) day trial period. In addition, the full applicable periodic
compensation shall be paid and there shall be no deferral in each month where
the Company is realizing over One Hundred Thousand ($100,000) positive cash flow
per month, after payment of all expenses and costs of whatever kind or nature,
including, without limitation, loan repayments, principal and interest.
c. Stock Options. Employee shall receive options to purchase shares of
common stock of the Company pursuant to the Stock Option Agreement which is part
of Schedule 1 annexed hereto and paragraph 3.a. and 3.c. hereof. Employee is
hereby granted the option to purchase a total of five hundred thousand (500,000)
shares of common stock of the Company at a strike price of fifty cents ($0.50)
per share which options will be issued and shall vest annually (at the end of
each year during the term of this Agreement upon each annual anniversary of the
Effective Date) at a rate of one hundred and twenty-five thousand (125,000)
shares per year. Such vested options are exercisable within three (3) years from
the date of vesting as further described in the attached Stock Option
Agreement.; provided that (i) no such options shall vest or be deemed to vest if
the employment hereunder is terminated within the first ninety (90) days of the
term of this Agreement; or (ii) if the employment hereunder is terminated by the
Company "for cause" at any time during the term of this Agreement, then all
remaining options, including all non-vested options and all vested but
unexercised options shall be terminated and shall be null and void,
notwithstanding the fact that in such event, certain of such options may have
otherwise vested (but were not exercised) prior to such termination "for cause."
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d. CEO Compensation. Should Employee become Company CEO, as contemplated by
this Agreement: (i) Employee shall be given a seat on the Company's Board of
Directors; and (ii) Employee's compensation shall be adjusted to the amounts set
forth in Section 2.a. above. Further, in such event Employee shall be granted an
additional option to acquire an additional two hundred fifty thousand (250,000)
shares of the Company's common stock at a strike price of fifty cents ($.50) per
share, further subject to the Stock Option Agreement annexed as part of Schedule
1 hereto. Such additional options will thereafter vest at the rate of sixty-two
thousand five hundred (62,500) shares per year (upon each annual anniversary of
the date of Employee's promotion to CEO).
In the event of a "Change in Control" in the Company as defined below, Employee
shall be vested for all then unconditionally granted stock options. For purposes
of this Agreement, "Change in Control" shall mean: (i) sale of substantially all
of the assets of the Company, or (ii) the acquisition by any corporation or
group of associated persons acting in concert, of an aggregate of fifty-one
percent (51%) of the outstanding shares of voting stock, or (iii) by the
election as directors of the Company of persons who were not directors at the
time of any such acquisition of the Company referenced in subparagraph (ii)
above if such persons shall become a majority of the Board of Directors of the
Company outside of the ordinary course of its business.
e. Bonus. In addition to all other compensation, the Employee within five
(5) days of filing by the Company of the Company's annual 10K statement for the
fiscal year ending July 31, 2002, with the U.S. Securities and Exchange
Commission, shall receive a bonus of Ninety Thousand ($90,000) Dollars in a lump
sum payment, subject to all applicable taxes and withholding, if and only if the
Company generates greater than Eighteen Million ($18,000,000) Dollars in gross
revenues, less taxes, for the fiscal year ending July 31, 2002, as determined by
the Company's independent auditors.
f. Benefits. The Employee shall be eligible to be a participant in any
medical, dental, disability, or health benefit plans which the Company may
provide to similarly situated employees from time to time, as well as be
included in any pension plan or profit sharing that the Company may implement
from time to time, provided that Employee shall be entitled to substantially the
same benefits package as currently enjoyed by similarly situated employees.
g. Expenses. The Company agrees that Employee shall be entitled to
reimbursement for traveling, entertainment, and other expenses reasonably
incurred by Employee in the performance of his employment obligations and
responsibilities and reasonably related automobile expenses as are available to
similarly situated executive employees; provided that such expenses be
pre-approved by the Company and that the Company's liability in this regard
shall otherwise be limited by the terms and conditions of Company policies in
effect on the date that the expense is incurred.
3. Termination.
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a. "For Cause" by Company. This Agreement may be terminated by Company "for
cause," at any time, effective upon written notice to Employee. The term "cause"
shall mean any one of the following: (a) Employee has breached this Agreement,
which breach remains uncured to the reasonable satisfaction of the Board of
Directors of Company for thirty (30) days after Employee receives written notice
thereof from the Board of Directors; (b) Employee has committed willful
misconduct or any willful violation of law in the performance of Employee's
duties to Company; (c) Employee has willfully failed to follow reasonable,
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lawful, and explicit instructions of the Board of Directors of Company
concerning the operations or business of Company; (d) Employee has been
convicted of a felony deemed by Company to be adverse to its business or
reputation; (e) Employee has willfully misappropriated funds or property of
Company; (f) Employee has willfully obtained a personal profit from any
transaction which constitutes a corporate opportunity of Company or any
affiliates, unless the transaction was approved in writing by Company's Board of
Directors after full disclosure of all details relating to such transaction, or
(g) Employee has directly or indirectly caused a breach of the confidentiality
or non-compete provisions of this Agreement, or (h) Employee works part time for
any other entity, where such work interferes with Employee's duties and
responsibilities pursuant to this Agreement, provided that Employee may not work
full-time for another entity in any event.
b. "Without Cause" by Company. This Agreement may be terminated "without
cause" by the Company at anytime effective upon written notice to Employee:
provided that if Employee is terminated "without cause," severance will be paid
to the Employee strictly as follows: (i) if the Employee is terminated "without
cause" subsequent to the first ninety (90) days of the date of the execution of
this Agreement but otherwise within one year of the date of execution of this
Agreement, the Employee shall continue to be paid his base salary for one (1)
month; (ii) if the Employee is terminated "without cause" later than one year
after execution of this Agreement, the Employee shall continue to be paid his
base salary for two (2) months; (iii) if the Employee is terminated "without
cause" later than two years after execution of this Agreement, the Employee
shall continue to be paid his base salary for three (3) months; (iv) if the
Employee is terminated "without cause" later than three years after the
execution of this Agreement, the Employee shall continue to be paid his base
salary for four (4) months; and (iv) if the Employee is terminated "without
cause" later than four years after execution of this Agreement, the Employee
shall continue to be paid his base salary for five (5) months.
c. Voluntarily by Employee. In the event Employee elects to voluntarily
terminate his employment pursuant to notice as provided herein, Company shall
pay Employee the prorated compensation through the date of termination and any
unexercised stock options (whether vested or not) held by Employee shall
automatically expire and automatically be deemed terminated and of no further
force and effect following ninety (90) days after such notice of voluntary
termination. Subject to the foregoing sentence and subparagraph 3.d. below, upon
payment by Company of such prorated compensation, Company shall be relieved of
all further obligations to Employee under this Agreement. In such event,
Employee will continue to be bound by the provisions of Sections 5 and 6 hereof.
d. Effect of Termination on Stock Options as to Sections 3(a) and 3(c). If
Employee is terminated by Company pursuant to subparagraph 3.a. or 3.b. or by
Employee pursuant to subparagraph 3.c. he must exercise all vested stock options
within ninety (90) days of termination, and any unexercised stock options
(whether vested or not) held by Employee in the shares of Company or in the
shares of any affiliate of Company shall automatically expire upon such
termination and automatically be deemed terminated and of no further force and
effect. This provision shall control any inconsistent or conflicting provision
in this Agreement and in any other agreement between Company and Employees or
between any affiliate of Company and Employee.
e. Death or Disability. The term of employment hereunder shall also
terminate immediately upon the death or "permanent disability" of the Employee
("permanent disability" being defined as the inability of the Employee to
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adequately perform his work in accordance with the provisions of this Agreement
for a period of ninety (90) days), and thereupon the Employee shall not be
entitled to receive any further salary or other compensation; provided however,
that the Employee, or the Employee's estate or guardian, as the case may be,
shall be entitled to exercise any vested unexercised stock options pursuant to
their terms, and all non-vested stock options shall be automatically terminated
notwithstanding anything to the contrary in this Agreement
4. Notice Period. Employee and Company understand and agree that should
Employee terminate employment subsequent to the initial ninety (90) day trial
period of this Agreement, he will give Company thirty (30) days' advance written
notice (the "Notice Period"). Company shall give Employee a similar thirty (30)
day notice in the event of any termination "without cause" pursuant to the
Agreement. Company may, at its option, pay Employee for the Notice Period in
lieu of active employment during the Notice Period. A party's exercise of its
rights under this paragraph shall be without prejudice to any other right or
remedy which it may have at law, in equity, or under this Agreement, including,
without limitation, Company's right to terminate such employment without notice
for "for cause."
a. Company agrees to continue in effect during the Notice Period payment of
salary only without bonus or any other compensation to which Employee may
otherwise have been entitled to under this Agreement, which payments shall be
made if and only if the Employee has executed and delivered to the Company a
general release of all claims against the Company and its stockholders,
directors, and employees in form and substance satisfactory to the Company and
only so long as Employee has not breached and during the Notice Period does not
breach the provisions of Sections 5 and 6 hereof, which provisions shall extend
beyond the term of employment and shall survive termination or expiration of
this Agreement.
b. Employee agrees that during the Notice Period he will cooperate fully
with Company in all matters relating to the winding up of any pending work and
the orderly transfer to other Company employees of accounts and matters for
which Employee has been responsible.
c. Employee agrees that, prior to the expiration of the Notice Period, he
will make best efforts to return to Company all lists of prospects, candidates,
and other matters compiled by Company's management and research staff, or by
Employee while employed by Company, and all business records and materials
related thereto, whether in tangible form, or on computer hard disks, diskettes,
on tape drives or any electronic media, computer literature, correspondence,
notes, memoranda, reports, summaries, manuals, proposals, contracts, and other
documents of any kind which relate in any way to the business of Company,
including specifically all materials which comprise or refer to Company's
Confidential Information (as defined below). Employee will not retain any copy,
facsimile, or note intended to memorialize any such data. Employee further
agrees that Company's Confidential Information and trade secrets remains the
sole and exclusive property of Company and subject to the terms of this
Agreement.
d. Employee agrees that, at or about the expiration of the Notice Period,
Company may convene an exit interview to review the status of accounts and
matters for which Employee has most recently been responsible to ensure that
Employee has fully obtained any entitlements which may be available under this
Agreement and/or to confirm that Employee clearly understands the nature and
scope of all of his post-employment obligations.
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5. Confidentiality.
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a. Employee recognizes that by virtue of Employee's employment by Company
Employee will be afforded numerous and extensive resources to assist Employee in
the solicitation, development, production and servicing of business clients.
Employee understands and agrees that all efforts that Employee expends and
programs and strategies Employee develops in this regard shall be for the
permanent and exclusive benefit of Company, that Company shall secure and retain
indefinitely the proprietary interest in all such business clients, and that
Employee will not undertake any action which could in any way disturb Company's
relationship with said business clients or Company accounts.
b. Employee further recognizes that by virtue of his employment
relationship to Company, Employee will be granted otherwise prohibited access to
confidential, proprietary information and data of Company which is not known
either to its competitors or within the collegiate student business and related
financial planning business generally and which has independent economic value
to Company and to its subsidiaries and affiliates. This information (hereinafter
referred to as "Confidential Information") includes trade secrets, as
contemplated by C.R.S. ss.ss.7-74-102(4) and 8-2-113(2)(b) (a copy of which is
attached hereto as Schedule 2 and the terms of which are incorporated herein by
this reference) and also includes, but is not limited to, the whole or any
portion or phase of any technical information, process, procedure, formula,
improvement, confidential business or financial information, business plan,
listing of names, addresses, or telephone numbers, or other information relating
to Company, its subsidiaries and affiliates' business which is secret and of
value, including, but not limited to, data relating to Company, its subsidiaries
and affiliates' unique marketing and servicing programs, procedures and
techniques; business, management and personnel strategies; the criteria and
formulae used by Company, its subsidiaries and affiliates in pricing their
products; lists of prospects, candidates, and other matters compiled by Company,
its subsidiaries and affiliates' management and research staff; the identity,
addresses, telephone numbers, authority and responsibilities of key contacts at
Company accounts or its subsidiaries' or affiliates' accounts, including, but
not limited to, high schools and colleges; details concerning the academic,
athletic and personal backgrounds of student-athlete collegiate scholarship
candidates, including attributes of the scholarship candidates; commission rates
of Company, its subsidiaries and affiliates' personnel; and other data showing
the particularized requirements and preferences of clients and Company, its
subsidiaries and affiliates' accounts, including, but not limited to, high
schools and colleges. Employee recognizes that this Confidential Information
constitutes a valuable property of Company and of its subsidiaries and
affiliates developed over a long period of time and at substantial expense.
Accordingly, Employee agrees that Employee will not, at any time during the
employment relationship with the Company or for a period of three (3) years
after the termination of the Employment relationship with Company, divulge such
Confidential Information or make use of such Confidential Information for
Employee's own purposes or the purposes of another.
6. Non-Compete. Employee recognizes Company's legitimate interest in
protecting, during and for a reasonable period of time following the termination
of Employee's employment, those Company accounts and business contacts with
which Employee will be associated during his employment. Accordingly, Employee
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understands and agrees that while employed by Company and for a period of three
(3) years following termination of employment with Company (unless, the Employee
has been terminated "without cause" by Company, in which case for a period of
one (1) one year following termination), Employee will not compete with the
business of the Company or of any subsidiary or affiliate of Company or solicit
the customers of the Company or of any subsidiary or affiliate of Company. The
geographic limitation within which the Employee shall not compete includes any
states in which Company, including its subsidiaries, conducts its business as of
the date of the termination of Employee's employment with the Company.
Notwithstanding this location limitation, Employee will not, during the
non-competition period, solicit or perform work for any of Company's existing
customers or clients as of the date of termination of Employee's employment,
regardless of the location from which such work is performed. If the time or
geographic limitation set forth herein is deemed to be unreasonable, Employee
agrees to abide by the maximum time or geographic limitation decided by a court
or other tribunal of competent jurisdiction.
7. Breach of Agreement. Employee and Company understand and agree that any
breach or evasion of any term of this Agreement will potentially give rise to
actions for breach of contract or tort, which may be brought in any court of
competent jurisdiction. Employee recognizes that the rights and privileges
granted to Employee by this Agreement and Employee's services and Employee's
corresponding covenants to Company are of a special, unique, and extraordinary
character, the loss of which cannot reasonably or adequately be solely
compensated for in damages in any action at law or through the offset or
withholding of any monies to which Employee otherwise might be entitled from
Company. Accordingly, Employee understands and agrees that Company shall also be
entitled to equitable relief, including a temporary restraining order and
preliminary and permanent injunctive relief, to prevent a breach of this
Agreement. The remedies available to Company under this Agreement are
cumulative. Company may, in its sole and absolute discretion, elect to pursue
all or any of such remedies. Such remedies are in addition to any given by law
or equity and may be enforced successively or concurrently.
8. Successors or Assigns. This Agreement will be binding upon and benefit
the parties hereto and their assigns, executors, heirs, or successors, provided
that Employee will not assign any obligation hereunder without the Company's
prior written consent, which consent may be withheld by Company for any reason,
and any such attempted assignment shall be void.
9. Amendment, Modification, or Waiver. No amendment, modification or waiver
of any condition, provision, or term of this Agreement will be valid or of any
effect unless made in writing and signed by the party or parties to be charged.
Any waiver by any party of any default of the other party will not affect or
impair any rights arising from any subsequent default by such party.
10. Severable Conditions. Each provision of this Agreement is intended to
be severable. If any provision hereof is illegal or invalid for any reason, such
illegality or invalidity shall not affect the remainder of this Agreement.
11. Entire Agreement. This Agreement contains the entire agreement and
understanding of the parties respecting the transaction contemplated hereby and
supersedes all prior agreements and understandings between the parties
respecting the subject matter of this Agreement.
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12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado with exclusive venue for the
enforcement hereof to be in Jefferson County, Colorado. Both parties consent to
personal jurisdiction in the courts of Colorado located in Jefferson County,
Colorado.
13. Attorneys' Fees. The substantially prevailing party in any litigation
or other proceeding enforcing this Agreement shall be entitled to reimbursement
of all costs and expenses including, without limitation, reasonable attorneys'
fees at each trial and appellate levels.
14. Captions. The captions in this Agreement are included for purposes of
reference only and are not part of the text of this Agreement.
15. Counterparts. This agreement may be executed in several counterparts
all of which shall constitute one and the same Agreement.
EXECUTED as of the date first above written.
Employee:
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Date: October ___, 2001
Company:
COLLEGE BOUND STUDENT ALLIANCE, INC., a Nevada corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
Date October ___, 2001
(Corporate Seal)
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SCHEDULE 1
TERMS OF EMPLOYMENT
OF
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SCOPE AND RESPONSIBILITIES
o Guiding and directing the current, ongoing operations.
o Developing and shaping strategies required for future growth
o Broadening the internal infrastructure
o Increasing the company's identity in the markets served
o Directing the future operation and direction towards the goal of
expanding current revenue level of $7.5MM to a level of approximately
$100MM, or more, within a five (5) year period.
o Leadership: Establish one's self as the leader, taking the company to
its next level of company objectives. Facilitate team building,
employee involvement, and focus energy toward successful achievement
of company goals.
o Resource Management: Build, retain, recruit and develop a strong team
of motivated professionals. Ability to identify talent and utilize
that talent to its highest potential. Strengthen and positively
influence the internal culture of the company.
o Organizational Development: Develop the strategic business plan for
the future growth of the company, and identify and implement necessary
infrastructure expansion objectives.
o Financial Advancement: Explore, define, analyze and obtain financing
when required.
o Marketing: Direct the formulation of a strategic marketing plan to
increase name recognition and presence in the marketplace. Establish
and actively pursue business alliances in target markets and related
technologies.
o Sales Management: Expand, structure, and staff an active, effective,
and quality direct sales organization led by qualified and effective
management.
o Product Development: Expand, structure, and staff a competent and
effective development organization led by qualified and effective
management.
o Industry Understanding: Maintain a current understanding of Key events
and trends across the industry and targeted market segments. Be able
to drive strategic and tactical planning.
o Financial Management: Successfully deliver financial objectives
through maintaining staff utilization and financial realization,
margins, fiscal accountability, discipline and control, including full
P&L responsibility.
o Tracking and Reporting: Track expected results and expenditures
measure progress against identified objectives and report outcomes on
a regular basis.
Special Responsibilities: In addition to the responsibilities set forth
above, within six (6) months from the date of this Agreement, Employee will be
responsible for developing and proposing to the Board of Directors an executive
bonus plan applicable to all key executives.
AND STOCK OPTION AGREEMENT ANNEXED HERETO AS PART OF SCHEDULE 1.
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SCHEDULE 2
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Annex Copy of C.R.S.ss.ss.7-74-102(4) and 8-2-113(2)(d)
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