Exhibit A ALEX KATZ CONSULTING AGREEMENT
Exhibit
A
▇▇▇▇
▇▇▇▇
THIS
CONSULTING AGREEMENT
(this
“Agreement”), executed on this 20th day of July, 2006 (the “Effective Date”), by
and between Jordan 1 Holdings Company, a Delaware corporation (the “Company”),
and ▇▇▇▇ ▇▇▇▇ (“Consultant” or “▇▇▇▇”).
WHEREAS,
Consultant wishes to provide services to the Company, and the Company wishes
to
engage Consultant in such capacity; and
WHEREAS,
the
parties believe it to be in their mutual interest to set forth in writing the
terms and conditions of Consultant’s services for the Company; and
WHEREAS,
this
Agreement shall govern the relationship between the parties from and after
the
date hereof.
NOW,
THEREFORE,
in
consideration of the foregoing, the parties agree as follows:
1. Recitals.
The
above recitals are true and correct and fully incorporate herein and form an
integral part of this Agreement.
2. Engagement.
The
Company hereby retains Consultant and Consultant hereby agrees to act as a
consultant to the Company. Consultant shall perform such services for the
Company as may be assigned to him by the Company’s chief executive officer or
such other senior executive officer as shall be determined by the Company’s
board of directors from time to time (the “Consulting
Services”)
including, but not limited to, the services specified in Appendix A to this
agreement. The Consultant shall exercise his own reasonable judgment and employ
such means as he, in good faith, determines are reasonable in performing the
Consulting Services, and the Company will not exercise any control over the
methods or means employed by the Consultant in performing the Consulting
Services; provided, that Consultant shall comply with the Company’s code of
ethics and general policies. The Consulting Services shall be performed at
such
times and at such locations as Consultant shall determine. Consultant shall
provide the servies of ▇▇▇▇ ▇▇▇▇ (“▇▇▇▇”).
3. Independent
Contractor Status.
It is
understood and agreed that in the performance of the Consulting Services by
the
Consultant hereunder, it is acting as an independent contractor and not in
any
way as an employee or agent of the Company. Neither Consultant nor any employee
of Consultant shall have any power to make any commitment on behalf of the
Company or to execute any document, instrument, letter or intent or any formal
or informal undertaking on behalf of the Company. The Consultant may be required
upon request of the Board, to submit to the Company written or oral reports
regarding his activities. Employees of the Consultant and others retained by
the
Consultant are not employees of the Company for purposes of worker’s
compensation, unemployment insurance, medical, disability and group life
insurance and they are not eligible to participate in any welfare, pension,
profit sharing or fringe benefit plan or arrangement of the Company. Consultant
shall maintain such workers compensation, disability and other insurance as
may
be required by law and shall, at the request of the Company, provide the Company
with evidence of such insurance.
4. Term.
This
Agreement shall commence on the Effective Date and shall expire on the fifth
(5th)
anniversary of the Effective Date (the “Term”); except, however:
A. if
as of
one hundred fifty (150) days before the end of the Term neither the Company
nor
Consultant has given the other written notice that it has declined to renew
this
Agreement at the end of the Term, the Term (which includes any renewal period
pursuant to this clause (a) of Section 4) shall automatically renew on for
an
additional year (i.e., so that, absent 150 days’ prior written notice, the Term
shall automatically renew on a year-to-year basis) until the close of business
on the following anniversary of the Effective Date, and
B. notwithstanding
anything herein to the contrary, the Term shall be subject to early termination
as provided in Section 12 hereof.
5. Compensation
A. Base
Compensation.
For all
services rendered during the Term by Consultant to the Company, Consultant
shall
receive base compensation (“Base Compensation”) determined as follows: (i) until
the first anniversary of the Effective Date, the Base Compensation shall be
$180,000.00 per annum; and (ii) on each anniversary of the Effective Date,
the
Base Compensation for the ensuing year shall be increased in proportion to
the
increase in the Consumer Price Index All Items for All Urban Consumers New
York-Northern New Jersey-Long Island, NY-NJ-PA-CT with Base of (1982-1984=100)
published by the United States Department of Labor and Statistics (“CPI”) as
measured from the preceding anniversary of the Effective Date. For purposes
of
the preceding sentence, if the CPI is not published as of a given date, as
of
the most recent date on which such index has been published; however, if
publication of the CPI is discontinued, the parties hereto shall accept
comparable statistics on the cost of living for the New York, New York area
as
computed and published by an agency of the United States government, or if
no
such agency computes and publishes such statistics, by any regularly published
national financial periodical that does compute and publish such statistics.
In
addition, the Base Salary shall be reviewed periodically by the Company’s board
of directors (the “Board”)
and
shall be increased on a merit basis as determined by the Board. The Company
shall pay Consultant the Base Compensation in twenty-four (24) equal
semi-monthly payments, with such payments to be made on every 15th
and
every 30th
of the
month (except the second payment in the month of February shall be paid on
the
28th)
(each
such date on which payment is due, a “Payment Date”) throughout the Term,
starting with the first Payment Date after the Effective Date.
B. Bonus
Payments and Additional Compensation.
Throughout the Term, if Board of Directors shall determine that Consultant
shall
be entitled to any bonus compensation, options or other equity grants, such
determination shall be made by a compensation committee comprised of independent
directors of the Company.
6. Facilities.
Throughout the Term, Consultant shall be furnished with such facilities and
services as are adequate and sufficient for the performance of his duties.
Without limiting the generality of the foregoing, it is specifically agreed
that
Consultant shall determine his place of work, and Consultant shall not be
required to spend time at other locations with such frequency or for such
periods as would require, as a practical matter, Consultant to relocate his
principal residence.
7. Benefits.
The
Company agrees to provide Consultant with the following benefits:
A. Benefits.Throughout
the Term, any person who generally performs services for the Company for more
than twenty (20) hours per week (exclusive of vacation, holiday, sick time
and
reasonable personal days) shall be entitled to participate in each “Benefit
Plan” (as defined below) on terms and conditions no less favorable to Consultant
than those that apply to any other officer or employee of the Company or any
direct or indirect subsidiary thereof. To the extent permitted by applicable
law
and the terms of any such Benefit Plan, the Company shall cause any waiting
or
non-eligibility period to be waived so that Consultant may participate as soon
as possible. For purposes hereof, “Benefit Plan” means any “employee benefit
plan” (as such term is defined in Section 3(3) of Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), whether or not the plan is subject
to ERISA) maintained, sponsored or contributed to by the Company or any of
its
“Control Affiliates” (as defined in Section 16(B)(v) hereof), including any
entity that would be considered an affiliate for purposes of any provision
of
ERISA. In addition, regardless of any health insurance or other Benefit Plan
that the Company may offer, the Company shall offer Consultant, at no cost
to
Consultant, full participation for Consultant and his family in Blue Cross/Blue
Shield Personal Choice - High Option with Drug Benefits; except, however, if
such health insurance plan is no longer provided in the marketplace, the Company
shall provide coverage for Consultant and his family under an alternate health
insurance plan that is no less favorable to Consultant in any respect. To the
extent that the terms of any Benefit Plan do not permit the Company to include
any employees of Consultant to participate in the Benefit Plan, the Company
will, to the extent practical, reimburse Consultant for the cost of providing
such benefits in an amount not exceeding the amount which the Company would
have
paid if the employees of Consulant who would be covered by the Benefit Plan
were
covered.
B. Automobile
Allowance.
Throughout
the Term, the Company shall provide Consultant with an automobile allowance
in
the amount of $1,000 per month for leasing, insuring, maintaining and repairing
an automobile of Consultant’s choice. In addition, the Consultant shall promptly
reimburse Consultant for all fuel expenses incurred by him in the performance
of
his duties to the Company upon presentation of receipts or other documentation
indicating the amount and business purposes of any such expenses.
8. Reimbursement
of Attorneys’ Fees and Costs.
On the
first Payment Date after the Effective Date, Consultant shall be entitled to
reimbursement for all attorneys’ fees and costs incurred by Consultant in
connection with negotiating and entering into this Agreement and related
matters. .
9. Development
and Other Activity Expenses.
The
Company recognizes that Consultant will have to incur certain out-of-pocket
expenses relating to his services and the Company’s business, and the Company
agrees to promptly reimburse Consultant for all reasonable expenses incurred
by
him in the performance of his duties to the Company upon presentation of a
voucher or documentation indicating the amount and business purposes of any
such
expenses in accordance with the Company’s expense reimbursement policies. These
expenses include, but are not limited to, travel, meals, entertainment,
etc.
10. Indemnification;
Advancement of Expenses.
A. Indemnification.
The
Company agrees to indemnify, defend and hold harmless Consultant from any and
all liabilities, obligations, judgments, awards, settlement payments,
deficiencies, penalties, fines, costs, expenses (including, without limitation,
attorneys’ and other professional fees and costs), losses and other damages of
any kind resulting from any “Covered Claim” (as defined below), except to the
extent expressly prohibited by applicable law. For purposes hereof, “Covered
Claim” means any suit, arbitration, action, audit, hearing, proceeding,
investigation or claim of any kind that may be asserted against or otherwise
involve (whether by subpoena, as a witness or otherwise) Consultant relating
in
any way to Consultant’s services or activities for or Consultant’s duties
(contractual, fiduciary or otherwise) to the Company or any shareholder thereof,
to any direct or indirect subsidiary of the Company, to any Benefit Plan or
participant thereof or to any other person or entity that Consultant may serve
at the request of the Company.
B. Advancement
of Expenses.
The
Company agrees to advance all costs and expenses (including, without limitation,
attorneys’ and other professional fees and costs) incurred by Consultant in
connection with any Covered Claim, except to the extent (i) prohibited by
applicable law or (ii) asserted as a direct claim by the Company based on
conduct by Consultant described in Sections 14(C)(i)-(iv) of this Agreement.
Without limiting the generality of the foregoing, if Consultant retains his
own
independent attorneys or other professionals in connection with any Covered
Claim, the Company shall pay all attorneys’ and other professional fees and
costs so incurred within thirty (30) days of a notice from Consultant informing
the Company of such fees and costs. Without limiting the generality of the
foregoing, the Company specifically agrees to advance all costs and expenses
(including, without limitation, attorneys’ and other professional fees and
costs) incurred by Consultant that would have been covered under a liability
insurance policy maintained by the Company but for application of a deductible
or other limit on the amount of coverage.
C. Indemnification
and Similar Agreements.
During
the Term, if the Company enters into any agreement with any of the Company’s
directors or officers providing exculpation, indemnification, defense, hold
harmless protection, advancement of expenses or any other similar rights or
protections, the Company shall enter into a similar agreement providing
Consultant with exculpation, indemnification, defense, hold harmless protection,
advancement of expenses and all other rights and protections that are no less
favorable to Consultant in any respect (such agreement with Consultant, an
“Indemnification Agreement”).
D. Cumulative
Rights.
All
rights and protections provided to Consultant under this Section 11, any further
agreement entered into pursuant to Section 11(D) hereof, under the
articles/certificate of incorporation or bylaws of the Company, at law, in
equity or otherwise shall be in addition to and cumulative with each
other.
11. Office
and Support Staff.
Throughout the Term, Consultant shall be entitled to an office of a size and
with furnishings and other appointments, and to secretarial and other
assistants, at least equal to those provided to any other management level
employee of the Company.
12. Termination.
A. Grounds.
The
Term shall terminate in the event of the death of ▇▇▇▇. In addition, the Company
shall have the right to terminate this Agreement only (i) in the case of ▇▇▇▇’
Disability, (ii) by Termination with Cause or (iii) Consultant may terminate
this Agreement hereunder pursuant to a Voluntary Termination, a Voluntary
Termination for Good Reason. For purposes of this Agreement, Disability,
Voluntary Termination, Voluntary Termination for Good Reason, and Termination
With Cause are defined in Section 13 of this Agreement.
B. Notice
of Termination.
Any
termination of the Term, other than upon death, shall be communicated by Notice
of Termination. For purposes of this Agreement, a “Notice of Termination” means
a written notice which (i) indicates the specific termination provision in
this
Agreement relied upon and the specific ground for termination; (ii) sets forth
in reasonable detail the facts and circumstances claimed to provided as a basis
for such termination; and (iii) the date of termination in accordance with
(C)
below. The failure of Consultant to set forth in the Notice of Termination
any
fact or circumstance which contributes to a showing of Good Reason shall not
waive any right of Consultant hereunder or preclude Consultant from asserting
such fact or circumstance in enforcing his rights hereunder.
▇. ▇▇▇▇
of Termination.
“Date
of Termination” means the date on which this Agreement terminates pursuant to
this Section 12, determined as follows:
(i) This
Agreement may be terminated by either Consultant or the Company in the event
of
▇▇▇▇’ Disability. The Date of Termination shall be the date of such
notice.
(ii) If
Consultant’s services are terminated by reason of ▇▇▇▇’ Death, the Date of
Termination shall be the date of ▇▇▇▇’ death.
(iii) If
this
Agreement is terminated by Consultant’s by reason of Voluntary Termination, the
Date of Termination shall be thirty (30) days from the date of the Notice of
Termination. In addition, if Consultant voluntarily refuses to provide
substantially all of the services described in Section 3 hereof for a period
of
four (4) consecutive weeks, Consultant shall be deemed to have terminated this
Agreement by Voluntary Termination, with the Date of Termination on the last
day
of such 4-week period. The Company may treat Consultant’s voluntary refusal to
provide services for four consecutive weeks as grounds for Termination With
Cause, by giving Consultant written notice of such grounds for termination,
in
which case Consultant shall have a period of thirty (30) days to cure such
cause
to the reasonable satisfaction of the Board, failing which this Agreement shall
be deemed terminated at the end of the such 30-day period. Notwithstanding
anything herein to the contrary, a voluntary refusal to provide services shall
not include any time absent due to: (a) illness, injury or any other physical
or
mental inability of ▇▇▇▇ or a member of ▇▇▇▇’ immediate family, provided such
illness or injury is adequately substantiated at the reasonable request of
the
Company, (b) reasonable vacation or personal time taken without breach of this
Agreement or (c) any absence from service with written consent of the
Board.
(iv) If
this
Agreement is terminated by reason of Voluntary Termination for Good Reason,
the
Date of Termination shall be the date of the Notice of Termination.
13. Certain
Definitions.
For the
purposes of this Agreement, the following terms shall have the following
definitions:
A. “Disability”
means a physical or mental inability, confirmed by three (3) independent
licensed physicians, to perform substantially all of the services described
in
Section 3 hereof that continues for a period of one hundred twenty (120)
consecutive days.
B. “Voluntary
Termination” means Consultant’s voluntary termination of this Agreement
hereunder for any reason, other than a Voluntary Termination With Good
Reason.
C. “Termination
With Cause” means the termination of this Agreement by act of the Board at a
duly convened meeting, at which Consultant shall be entitled to be present
and
shall have a reasonable opportunity to present information it believes should
be
considered by the Board, for any of the following reasons, if
applicable:
(i) ▇▇▇▇’
conviction of a crime involving some act of dishonesty or moral turpitude
(specifically excepting simple misdemeanors not involving acts of dishonesty
and
all traffic violations other the vehicular homicide);
(ii) ▇▇▇▇’
theft, embezzlement, misappropriation of or intentional and malicious infliction
of damage to the Company’s property or business opportunity;
(iii) ▇▇▇▇’
abuse of alcohol, drugs or other illegal or intoxicating substances as
determined by an independent medical physician; or
(iv) Consultant’s
or ▇▇▇▇’ engaging in gross dereliction of duties, repeated refusal to perform
reasonably assigned duties appropriate for Consultant’s position, or repeated
violation of the Company’s reasonable written policies after written
warning.
(v) Consultant’s
inability to provide the services of ▇▇▇▇ other than as result of ▇▇▇▇’ death,
Disability or Voluntary Termination for Good Reason or as provided in Section
12(C)(iii).
D. “Voluntary
Termination for Good Reason” means Consultant’s termination of this Agreement
after the occurrence of any of the following:
(i) any
failure of the Company to pay or provide Base Compensation, perquisites or
compensation of any kind as and when due under this Agreement;
(ii) a
material reduction in any of the benefits or perquisites provided to Consultant
without Consultant’s consent, even if consistent with a reduction in the same
benefits and perquisites provided to all other officers of the
Company;
(iii) any
imposition of a requirement on Consultant to perform services for a significant
portion of his time at a location other than (a) within a twenty-mile commuting
distance of Jenkintown, Pennsylvania, (b) New York City, New York or (c) a
location agreed to in writing by Consultant;
(iv) assigning
to Consultant any duty that is illegal, unethical, demeaning or otherwise
inappropriate for a person performing high level activities for the
Company;
(v) any
breach of Section 10 hereof (including, without limitation, any failure to
enter
into an Indemnification Agreement as required by Section 11(D) hereof), any
breach of an Indemnification Agreement or any amendment to the
articles/certificate of incorporation or bylaws of the Company which amendment
adversely affects any limitation on Consultant’s personal liability or
Consultant’s rights to indemnification, advancement of expenses or any similar
rights or protections;
(vi) any
material breach of this Agreement by the Company committed intentionally or
knowingly;
(vii) any
other
material breach by the Company of this Agreement that remains uncured for more
than, or is repeated after, thirty (30) days following receipt of written notice
thereof from Consultant
14. Compensation
Upon Termination - Obligations of the Company Upon
Termination.
A. Death,
Disability or Voluntary Termination for Good Reason.
If
Consultant’s service with the Company terminates as a result of ▇▇▇▇’ death,
▇▇▇▇’ Disability or Voluntary Termination for Good Reason, the Company shall pay
Consultant all of the following:
(i) Within
ninety (90) days following the Date of Termination, the Company shall pay
Consultant cash compensation in a lump sum equal to the difference obtaining
by
taking (a) Consultant’s then-current annual Base Compensation and subtracting
(b) the “Disability Proceeds” (as defined below) received from the end of the
120-day period referenced in Section 13(A) hereof through the date on which
payment is due under this Section 15(A)(i), where “Disability Proceeds” means
proceeds received by Consultant under any disability insurance policies paid
for
by the Company.
(ii) On
the
first Payment Date on or after the Date of Termination, the Company shall pay
Consultant’s full Base Compensation up to the Date of Termination at the rate in
effect on the Date of Termination.
(iii) Within
ninety (90) days following the Date of Termination, the Company shall pay
Consultant any compensation previously deferred by Consultant (together with
any
accrued interest thereon) and not yet paid by the Company.
(iv) The
Company shall pay Consultant all other benefits, compensation or amounts owing
to, or earned or accrued by, or vested for the account of, Consultant under
any
policies, programs, arrangements of the Company or Benefit Plans, all in
accordance with the applicable terms of such policies, programs, arrangements
or
Benefits Plans. Anything in this Agreement to the contrary notwithstanding,
the
benefits to be provided to Consultant’s family upon his death shall be no less
favorable in any respect that such benefits to be provided by the Company to
any
other officer or employee under any policies, programs, arrangements or Benefit
Plans.
B. Termination
With Cause or Voluntary Termination.
If
Consultant shall suffer a Termination With Cause or terminate his services
hereunder by a Voluntary Termination, the Company shall pay or provide
Consultant all other benefits and compensation earned or accrued through the
Date of Termination. The Company shall pay the Base Compensation earned through
the Date of Termination on the First Payment Date on or after the Date of
Termination.
15. Change
in Control.
[Deleted]
16. No
Mitigation; No Offset.
In the
event of any termination of Consultant’s services, Consultant shall be under no
obligation to seek other work or otherwise mitigate damages or amounts payable
to him hereunder, and there shall be no offset against amounts due under this
Agreement (whether on account of any remuneration attributable to any subsequent
employment that Consultant may obtain or otherwise), it being agreed that the
Company’s obligation to make the payments pursuant to this Agreement and
otherwise to perform its obligations hereunder shall not be subject to or
affected by any set-off, counterclaim, recoupment, defense or other claim,
right
or action which the Company or any other person or entity may have against
Consultant or any third party. The Company agrees to pay, to fullest extent
permitted by law, all attorneys’ fees and costs which Consultant may reasonably
incur as a result of any contest by the Company or any third party of the
validity or enforceability of, or any liability under, this Agreement (including
as a result of any contest by Consultant regarding the amount of any payment
due
under this Agreement) provided Consultant prevails in the
litigation.
17. Notices.
All
notices required to be given under the Agreement shall be in writing, sent
certified mail, return receipt requested, postage prepaid, to the following
addresses:
A. If
to
Consultant, then to:
▇▇▇▇
▇▇▇▇
▇.▇.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
with
a
copy to:
▇▇▇▇
▇▇▇▇▇▇, Esq.
Fox
Rothschild, LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
B. If
to the
Company, then to:
Jordan
1
Holdings Company
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________
________________________
with
a
copy to:
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇, Esq.
Sichenzia
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Each
party may change its or his address for receipt of notices under this Agreement
from time to time by giving written notice of such change in the manner provided
above.
18. Governing
Law and Venue.
The
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York. Venue for any action or suit brought hereunder or in
connection herewith, or relating hereto, shall lie with the federal and state
courts of competent jurisdiction located in New York County, New
York.
19. Waiver.
A
waiver of a party’s rights under this Agreement shall be effective only to the
extent set forth in a written instrument executed by the waiving party. No
waiver by a party of any misrepresentation or breach (whether intentional or
not), in any one or more instances and for any period of time, shall be deemed
or construed as a waiver of any prior or subsequent misrepresentation or breach
of the same or any other provision. No course of dealing or forbearance,
leniency, delay or other omission by a party to assert, exercise or enforce
any
right or remedy under this Agreement at any one or more times or for any periods
of time shall impair or otherwise affect any such right or remedy or any other
right or remedy, or be construed to be a waiver or acquiescence; nor shall
any
single or partial exercise of any right or remedy, or any abandonment or
discontinuance of steps to enforce such a right or remedy, preclude any further
exercise of the same or any other right or remedy, it being agreed that at
all
times each party shall have the right to insist upon and enforce strict
compliance with each and every provision of this Agreement.
20. Binding
Effect and Assignment.
Consultant acknowledges that his services are unique and personal. Accordingly,
Consultant may not assign his duties or obligations under this Agreement.
Consultant’s rights and obligations under this Agreement shall inure to the
benefit of and shall be binding upon Consultant’s their heirs, personal
representatives and successors and assigns. The Agreement shall be binding
upon
the Company’s successors and/or assigns.
21. Costs
of Collection.
If the
Company fails to make any payment as and when due under this Agreement or fails
to perform completely and timely any other obligation under this Agreement,
the
Company shall be liable, and shall reimburse Consultant upon receipt of written
demand, for any and all costs and expenses (including reasonable attorneys’ fees
and costs) incurred by Consultant in collecting amounts due or otherwise
incurred in enforcing Consultant’s rights under this Agreement.
22. Entire
Understanding; Amendment.
The
Agreement contains the entire understanding of the parties and supersedes any
and all previous agreements between the parties. This Agreement may be amended
or modified only by written agreement of both parties.
23. Construction.
The
terms “hereof,” “hereby,” “hereto” and “hereunder” mean, respective, of, by, to
and under this Agreement as a whole, and not merely to the provision in which
such term is used. The term “or” shall be construed to be inclusive and have the
meaning of “and/or”. The masculine form, wherever used herein, shall be
construed to include the feminine and the neuter, and vice versa, where
appropriate. The singular form, wherever used herein, shall be construed to
include the plural, and vice versa, where appropriate. The definitions in this
Agreement shall apply equally to both the singular and plural of the terms
defined. The term “include” (and correlative terms, such as “includes” and
“including”) shall not be construed as a term of limitation in any context but
shall be construed as if followed by the words “without limitation.” All
references herein to a particular statute, code, regulation or other provision
of applicable law shall include references to all amendments thereto and
legally-binding interpretations thereof and, in the case of the repeal thereof,
shall include any successor thereto enacted, promulgated or issued in
replacement thereof. The captions used in this Agreement are for the convenience
of reference only; they form no part of this Agreement and shall not limit
or
otherwise affect the interpretation of any provision herein. The parties hereto
and their respective counsel participated jointly in the preparation of this
Agreement, and each party has had the opportunity to review, comment upon and
redraft this Agreement; accordingly, no rule of construction shall apply against
or in favor of either party based on the role of such party or his or its
counsel in the drafting thereof.
25. Counting
Days; Timing.
In
computing the number of days for purposes hereof, all days shall be counted,
including Saturdays, Sundays and legal holidays in the State of New York;
provided, however, that if the final day of any time period falls on a Saturday,
Sunday or legal holiday, the final day shall be deemed to be the next day that
is not a Saturday, Sunday or legal holiday. Time is of the essence of every
provision of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
the
day and year first above written.
CONSULTANT:
/s/
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COMPANY: JORDAN
1
HOLDINGS COMPANY
a
Delaware corporation
By:
/s/
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Name:
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Title:
CEO