UNITED STATES
SECURITIES EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 30, 2016
Great Elm Capital Group, Inc.
(Exact name of registrant as specified in its charter)
|
Delaware |
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001-16073 |
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94-3219054 |
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(State or Other Jurisdiction
|
|
(Commission
|
|
(I.R.S. Employer
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20 First Street, First Floor
Los Altos, California 94022
(Address of principal executive offices) (Zip Code)
(650) 518-7111
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
The registrant entered into consulting agreements with each of Messrs. Vachon and Teksler as described in Item 5.02.
Item 2.01 Completion of Acquisition or Disposition of Assets.
On June 30, 2016, the registrant completed the divestiture of its intellectual property business to Optis UP, LLC as contemplated by the Purchase and Sale Agreement, dated as of April 6, 2016, as amended (the “Purchase Agreement”) between Optis UP Holding, LLC and the registrant.
The net proceeds of the divestiture are summarized as follows:
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Purchase price |
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$ |
30,000,000 |
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Reimbursement of capital contributions by the registrant to the licensing companies since signing the Purchase Agreement |
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4,200,000 |
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|
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Settlement agreement with McKool Smith PC |
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(4,500,000 |
) |
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Remaining EIP incentive fee |
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(150,000 |
) |
|
|
Licensing business costs incurred but not reimbursable |
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(1,183,000 |
) |
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Teksler and Vachon consulting agreement |
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(524,000 |
) |
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Severance and other employee costs |
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(1,919,000 |
) |
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Transaction costs (legal, etc.) |
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(200,000 |
) |
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Early lease termination |
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(70,500 |
) |
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Other |
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(585,000 |
) |
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Net proceeds |
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$ |
25,064,000 |
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There is no assurance that net proceeds of the divestiture will not be lower than the estimate shown in the foregoing table.
The Purchase Agreement provides for payment of up to an additional $10,000,000 on June 30, 2018 and sharing of net damages (if any) recovered in the registrant’s pending breach of contract litigation with Microsoft Corporation.
Item 2.05 Costs Associated with Exit or Disposal Activities.
The required disclosure is contained in Item 2.01.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Effective July 5, 2016, Philip A. Vachon resigned from the board of directors of the registrant. Mr. Vachon was not a member of any board committee and his resignation was not the result of any disagreement on any matter relating to the registrant’s operations, policies or practices. Mr. Vachon agreed to provide consulting services to the registrant through the time of resolution of any claims made by the purchaser under the Purchase Agreement. On July 5, 2016, the registrant entered into a consulting agreement with Mr. Vachon which is filed as an exhibit to this report.
Effective July 5, 2016, Boris Teksler’s employment as chief executive officer of the registrant concluded. Mr. Teksler will resign from the registrant’s board of directors where he was a member of the strategic committee, upon the closing of the transactions contemplated by the Subscription Agreement, dated as of June 24, 2016, by and among the registrant, Great Elm Capital Corp. and other the parties thereto. Mr. Teksler’s resignation is not the result of any disagreement on any matter relating to the registrant’s
operations, policies or practices. Under the terms of Mr. Teksler’s employment, the registrant will pay him $1,000,000 in severance and on June 30, 2016 all of Mr. Teksler’s compensatory options to purchase shares of the registrant’s common stock became vested. The registrant will also pay health insurance premiums for Mr. Teksler and his family through July 2017. On July 5, 2016, the registrant entered into a consulting agreement with Mr. Teksler which is filed as an exhibit to this report.
The registrant’s general counsel and secretary Noah Mesel’s employment with the registrant concluded on July 5, 2016. Mr. Mesel is entitled to a lump sum severance payment of $292,500, all of his compensatory options became vested and the registrant agreed to pay for Mr. Mesel and his family’s health insurance through April 2017.
Item 9.01 Financial Statements and Exhibits.
Pro forma financial information. As described above, on June 30, 2016, the registrant completed the divestiture of its intellectual property business through the sale of 100% of the equity interests in the two holding companies of Unwired Planet LLC. We refer to the holding companies, Unwired Planet LLC and its subsidiary as the “IP Licensing Companies.”
A limited number of pro forma adjustments are required to illustrate the effects of the divestiture on the registrant’s unaudited consolidated balance sheet as of March 31, 2016, and the registrant’s unaudited consolidated statements of operations for the nine months then ended and for the year ended June 30, 2015. The following narrative description is furnished in lieu of unaudited pro forma consolidated financial statements.
The following description of the registrant’s unaudited pro forma consolidated statements of operations for the nine months ended March 31, 2016 and for the year ended June 30, 2015 assumes the divestiture occurred on July 1, 2015. The IP Licensing Companies’ results of operations comprise over 90% of the registrant’s consolidated expenses for each period.
The following description of the pro forma adjustments to the registrant’s unaudited consolidated balance sheet as of March 31, 2016 assumes the divestiture occurred as of that date. Historically, the registrant did not record as an asset on its balance sheet the value of the patents the IP Licensing Companies acquired from Ericsson or the patents the registrant and its subsidiaries developed. After giving effect to the divestiture, the registrant’s consolidated balance sheet would reflect the net proceeds that received on closing of the divestiture as an increase in cash balance and the related gain as a reduction in the registrant’s accumulated deficit. The deferred licensing costs and the deferred revenue from the Lenovo agreement will be eliminated. The registrant estimates that its March 31, 2016 pro-forma cash balance was $71.5 million.
Exhibits. The exhibit index attached hereto is incorporated herein by reference.
Exhibit 10.1
July 5, 2016
Mr. Boris Teksler
60 Doud Drive
Los Altos, CA 94022
Dear Boris:
This letter agreement (this “Agreement”) confirms the terms of your engagement as a consultant to Great Elm Capital Group, Inc. (the “Company”).
1. Consulting. You and the Company agree that for a period of two years beginning on the Commencement Date, as that term is defined below, you will provide consulting and advisory services from time to time as may be reasonably requested by the Company’s chief executive officer or the Board; provided that such consulting does not unreasonably interfere with, burden or contravene any other consulting services engagement or employment relationship you may enter during such two-year period.
Such consulting services may consist of any matters of concern to the Company’s Chief Executive Officer or Board of Directors (the “Board”); provided that the Company will not require you to travel, such services will not exceed 10 hours of consulting time in any given month, and will take into consideration your other business and personal commitments that may arise during such period . The Company will pay you $500 per month retainer for such consulting services, with 12 months of payments to be made on the first anniversary of the termination of your services as Chief Executive Officer and each subsequent payment to be made monthly. The Company will reimburse all out-of-pocket expenses you reasonably incur in connection with such services, subject in each case to the Company’s travel and expense policies and applicable IRS requirements. The term “Commencement Date” shall mean the time immediately before the termination of your employment as Chief Executive Office of the Company. You and the Company agree that there will be on-going continuity of service as a result of the term of this agreement beginning before your retirement from the Board.
2. Covenants. We mutually agree to the following covenants (in addition to any obligations we each may have by law):
(a) Non-solicitation . During the term of this Agreement, you will not, directly or indirectly induce or attempt to induce any customer, limited partner, shareholder or other investor, supplier, licensee or other business relation of the Company or any affiliate of the Company to cease doing business with the Company or such affiliate, or interfere in any way with the relationship between any such customer, limited partner, shareholder or other investor, supplier, licensee or business relation and the Company or any affiliate of the Company; provided that you will not be prevented from soliciting employment via third party search firms, general solicitations (web sites or advertisements) or persons you can demonstrate contacted you first.
(b) Nondisclosure; Inventions . During the term of this Agreement and at all times thereafter, (i) you will not divulge, transmit or otherwise disclose to any third party directly or indirectly, other than in the regular and proper course of business of the Company and its affiliates, any non-public customer lists, or other trade secrets or confidential knowledge or information with respect to the operations or finances of the Company or any Affiliates including without limitation any confidential or secret processes, services, techniques, customers or plans with respect to the Company or its affiliates, including, without limitation, any know-how, research and development, software, databases, inventions, processes,
formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals concerning the past, current or future business, activities and operations of the Company and its affiliates (all of the foregoing collectively hereinafter referred to as “Confidential Information”), and (ii) you will not use, directly or indirectly, any Confidential Information for the benefit of anyone other than the Company and its affiliates; provided, that you have no obligation, express or implied, to refrain from using or disclosing to others any such knowledge or information which is or hereafter will become available to the general public other than through disclosure by you. Notwithstanding the foregoing, you may comply with any court order compelling you to produce Confidential Information, but only to the extent required, after prompt notice of any such order to the Board and the Company’s legal counsel. All Confidential Information, new processes, techniques, know-how, methods, inventions, plans, products, patents and devices developed, made or invented by you, alone or with others, while an employee of the Company which are related to the business of the Company and its affiliates will be and become the sole property of the Company, unless released in writing by the Board, and you hereby assign any and all rights therein or thereto to the Company. Within ten days of the date hereof, you will return all Company property (including, but not limited to, keys, credit cards, books and records, computers and electronic credentials) to the Company. At the conclusion of this Agreement, the Company may request that you delete Company Confidential Information from your personal computer, and you will confirm that you have used reasonable efforts to erase Company Confidential Information. The Company, at its expense, may validate erasure of all Company Confidential Information from your computer. Notwithstanding the foregoing, Company Confidential Information that you have previously presented at conferences may be retained by you and used without restriction.
(c) No Conflict of Interest . During the term of this Agreement, you will not, directly or indirectly, undertake any activity that creates or could reasonably be expected to create a conflict of interest with the Company. During the term of this Agreement, you agree to be bound by the Company’s code of conduct as then in effect, whether or not your services hereunder result in such code of conduct being applicable to you. A conflict of interest shall be defined to me only a conflict with the Company’s financial services business or consulting with Microsoft during the pendency of Company’s dispute with Microsoft. For avoidance of doubt, any future engagement with PanOptis or any of its related entities shall not be considered a conflict of interest.
(d) Non-Disparagement . During the Restriction Period, you agree to refrain from any disparaging or negative statements or comments about the Company and its current and former employees, officers, and directors, including, without limitation, the business, products, intellectual property, financial standing, or employment/compensation/benefit practices of the Company, and the Company agrees to refrain from any disparaging or negative statements or comments about you; provided that the foregoing shall not be construed to prevent either party from testifying truthfully before any court, tribunal or other legal proceeding. You understand that the Company’s non-disparagement obligations under this paragraph extend only to the Board and officers that report directly to the Company’s chief executive officer and only for so long as each individual is an employee or director of the Company.
(e) Specific Performance . In the event of any breach or threatened breach of any provision of this Section 2 and if the breach is not substantially cured within the cure period specified below, then the non-breaching party will be entitled to seek equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available. With respect to all obligations under Section 2 of this Agreement, the cure period shall be 30 days after receipt of written notice describing with particularity the alleged breach.
3. Miscellaneous.
(a) Assignment . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs (in your case) and permitted assigns. This Agreement is personal to you and neither this Agreement nor any rights hereunder may be assigned by you. No rights or obligations of the Company under this Agreement may be assigned or transferred by the Company except that such rights or obligations may be assigned or transferred pursuant to a merger or consolidation in which the Company is not the continuing entity, or pursuant to a sale of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets of the Company and such assignee or transferee assumes the liabilities, obligations and duties of the Company, as contained in this Agreement, either contractually or as a matter of law.
(b) Mediation and Arbitration . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be referred to mediation, with a mediator, jointly selected by the parties, and with the cost of such mediation evenly split between the parties. Should the mediator thereafter declare that the mediation has failed despite the good faith efforts of the parties, all remaining controversies, disputes or claims shall be settled exclusively by arbitration, before a single arbitrator, in San Francisco, in accordance with the Commercial Rules of Judicial Arbitration and Mediation Services.
(c) Notice . Any notice to either party hereunder shall be in writing, and shall be deemed to be sufficiently given to or served on such party, for all purposes, if the same shall be personally delivered to such party, or sent to such party by registered mail, postage prepaid, at, in the case of the Company, the address first given above and, in the case of Executive, his principal residence address as shown in the records of the Company. Notices to the Company shall be addressed to the General Counsel. Either party hereto may change the address to which notices are to be sent to such party hereunder by written notice of such new address given to the other party hereto. Notices shall be deemed given when received if delivered personally or three days after mailing if mailed as aforesaid.
(d) Governing Law . This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware applicable to contacts made in and solely to be performed therein.
(e) Tax Withholding . The Company shall withhold from any payments made to you under this Agreement any amounts determined by the Company to be required to be withheld by applicable federal, state or local tax law.
(f) Legal Counsel . You acknowledge that you have received, or had the opportunity to receive, independent legal advice from legal counsel of his choice prior to executing this Agreement and that you have no not relied on any representations or statements made by the Company that are not specifically set forth in this Agreement.
(g) Entire Agreement . This Agreement represents the entire understanding of the parties hereto with respect to the matters set forth herein. The terms and provisions of this Agreement may not be modified or amended except in a writing signed by both parties. If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(h) No Waiver . No waiver by either party of any breach by the other party of any condition or provision contained in this Agreement to be fulfilled or performed by such other party shall be deemed a waiver of a similar or dissimilar condition or provision at the same or any prior or subsequent time.
Except to the extent otherwise specifically provided herein, any waiver must be in writing and signed by you or, on behalf of the Company, by the Company’s chief executive officer, as the case may be.
(i) Remedies Not Exclusive . Nothing in this Agreement shall be construed as prohibiting either party from, pursuing any other, remedy or remedies not specified herein, including, without limitation, the recovery of damages.
If this Agreement correctly sets forth our mutual agreement, please sign and return one copy to me.
Very truly yours,
/s/ Richard S. Chernicoff
Richard S. Chernicoff
Chairman of the Board
ACCEPTED AND AGREED AS OF THE DATE FIRST WRITTEN ABOVE:
/s/ Boris Teksler
Boris Teksler
Exhibit 10.2
July 5, 2016
Mr. Philip A. Vachon
6421 NE 204th Drive
Redmond, WA 98053
Dear Phil:
This letter agreement (this “Agreement”) confirms the terms of your retirement from the board of directors (the “Board”) of Unwired Planet, Inc. a Delaware corporation, to be renamed Great Elm Capital Group, Inc. (the “Company”).
1. Retirement. This Agreement confirms the Board’s acceptance of your resignation from the Board effective on the date hereof. You have informed the Board that your resignation is not the result of any disagreement with the Company or the Board with respect to policies or operations. The Board has taken all necessary action to accelerate the vesting of all equity awards you hold on the date hereof. The Company will reimburse all unpaid out-of-pocket expenses in accordance with its policies and applicable IRS rules.
2. Consulting. You agree for a period of two years plus any additional time required to resolve any Claim (as defined below) you will provide consulting and advisory services from time to time as may be reasonably requested by the Company’s chief executive officer or the Board. Such services may consist of any matters of concern to the Company’s chief executive officer; provided that the Company will take into consideration your other business and personal commitments that may arise during such period. Such matters are expected to include, without limitation, negotiating with PanOptis Intellectual Property Holdings, LLC and its affiliates and successors (collectively, “PanOptis”) with respect to potential claims (“Claims”) under the Purchase and Sale Agreement, dated as of April 6, 2016, as amended, and assistance with litigation, government investigations and other adversarial proceedings, whether pending, threatened or hereafter arising. The Company will pay you in cash for your consulting services $500,000 within ten business days of the date of this agreement. The Company will reimburse all out-of-pocket expenses you reasonably incur in connection with such services, subject in each case to the Company’s travel and expense policies and applicable IRS requirements.
3. Covenants. We mutually agree to the following covenants (in addition to any obligations we each may have by law):
(a) Noncompetition . During the period referred to in paragraph 2 (the “Restricted Period”), you will not, within any jurisdiction in which the Company or any of its affiliates is doing or is qualified to do business, directly or indirectly, own, manage, operate, control, be employed by or participate in the ownership, management, operation or control of, or be connected in any manner with, any credit-focused investment management business); provided that your ownership of securities of five percent or less of any class of securities of a public company in a similar business will not, by itself, be considered to be competition with the Company or any Affiliate.
(b) Nonsolicitation . During the Restricted Period, you will not, directly or indirectly, (i) solicit for employment or otherwise contract for the services of any individual who is or was an employee or consultant of the Company or any affiliate of the Company; (ii) otherwise induce or attempt to induce any employee or consultant of the Company or an affiliate of the Company to leave the employ or service of the Company or such affiliate, or in any way interfere with the relationship between the Company or any affiliate of the Company and any employee or consultant respectively thereof; or (iii) induce or attempt to induce any customer, limited partner, shareholder or other investor, supplier, licensee or other business relation of the Company or any affiliate of the Company to cease doing business with the Company or such affiliate, or interfere in any way with the relationship between any such customer, limited partner, shareholder or other investor, supplier, licensee or business relation and the Company or any affiliate of the Company; provided that you will not be prevented from soliciting employment via third party search firms, general solicitations (web sites or advertisements) or persons you can demonstrate contacted you first.
(c) Nondisclosure; Inventions. During the Restricted Period and at all times thereafter, (i) you will not divulge, transmit or otherwise disclose to any third party directly or indirectly, other than in the regular and proper course of business of the Company and its affiliates, any customer lists, trade secrets or other confidential knowledge or information with respect to the operations or finances of the Company or any Affiliates or with respect to confidential or secret processes, services, techniques, customers or plans with respect to the Company or its affiliates, including, without limitation, any know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals concerning the past, current or future business, activities and operations of the Company and its affiliates (all of the foregoing collectively hereinafter referred to as “Confidential Information”), and (ii) you will not use, directly or indirectly, any Confidential Information for the benefit of anyone other than the Company and its affiliates; provided , that you have no obligation, express or implied, to refrain from using or disclosing to others any such knowledge or information which is or hereafter will become available to the general public other than through disclosure by you. Notwithstanding the foregoing, you may comply with any court order compelling you to produce Confidential Information, but only to the extent required, after prompt notice of any such order to the Board and the Company’s legal counsel. All Confidential Information, new processes, techniques, know-how, methods, inventions, plans, products, patents and devices developed, made or invented by you, alone or with others, while an employee of the Company which are related to the business of the Company and its affiliates will be and become the sole property of the Company, unless released in writing by the Board, and you hereby assign any and all rights therein or thereto to the Company. Within ten days of the date hereof, you will return all Company property (including, but not limited to, keys, credit cards, books and records, computers and electronic credentials) to the Company.
(d) No Conflict of Interest . During the Restricted Period, you will not, directly or indirectly, undertake any activity with respect to PanOptis which creates or could reasonably be expected to create or could reasonably be expected to create the appearance of a conflict of interest with the Company, including, but not limited to, employment with PanOptis, equity grants, options to purchase equity, current or future interest, or any other ownership interest in any PanOptis entity, consulting with PanOptis or otherwise assisting PanOptis in licensing, acquiring, selling assets or patent litigation (except that you may provide unpaid testimony required by valid legal process). During the Restricted Period, you agree to be bound by the Company’s code of conduct as then in effect, whether or not your services hereunder result in such code of conduct being applicable to you. Further you represent that you have no current or past arrangement with any PanOptis entity.
(e) Non-Disparagement. During the Restriction Period, you agree to refrain from any disparaging or negative statements or comments about the Company and its current and former employees, officers, and directors, including, without limitation, the business, products, intellectual property, financial standing, or employment/compensation/benefit practices of the Company, and the Company agrees to refrain from any disparaging or negative statements or comments about you; provided that the foregoing shall not be construed to prevent either party from testifying truthfully before any court, tribunal or other legal proceeding. You understand that the Company’s non-disparagement obligations under this paragraph extend only to the Board and officers that report directly to the Company’s chief executive officer and only for so long as each individual is an employee or director of the Company.
(f) Specific Performance . In the event of any breach or threatened breach of any provision of this Section 3, in addition to any remedies at law, either party and will be entitled to seek equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available.
4. Miscellaneous.
(a) Assignment . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs (in your case) and permitted assigns. This Agreement is personal to you and neither this Agreement nor any rights hereunder may be assigned by you. No rights or obligations of the Company under this Agreement may be assigned or transferred by the Company except that such rights or obligations may be assigned or transferred pursuant to a merger or consolidation in which the Company is not the continuing entity, or pursuant to a sale of all or substantially all of the assets of the Company, provided that the assignee or transferee is the successor to all or substantially all of the assets of the Company and such assignee or transferee assumes the liabilities, obligations and duties of the Company, as contained in this Agreement, either contractually or as a matter of law.
(b) Mediation and Arbitration . Any controversy, dispute, or claim between the parties to this Agreement, including any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement shall be referred to mediation, with a mediator, jointly selected by the parties, and with the cost of such mediation evenly split between the parties. Should the mediator thereafter declare that the mediation has failed despite the good faith efforts of the parties, all remaining controversies, disputes or claims shall be settled exclusively by arbitration, before a single arbitrator, in the State of Delaware, in accordance with the Commercial Rules of Judicial Arbitration and Mediation Services.
(c) Notice . Any notice to either party hereunder shall be in writing, and shall be deemed to be sufficiently given to or served on such party, for all purposes, if the same shall be personally delivered to such party, or sent to such party by registered mail, postage prepaid, at, in the case of the Company, the address first given above and, in the case of Executive, his principal residence address as shown in the records of the Company. Notices to the Company shall be addressed to the General Counsel. Either party hereto may change the address to which notices are to be sent to such party hereunder by written notice of such new address given to the other party hereto. Notices shall be deemed given when received if delivered personally or three days after mailing if mailed as aforesaid.
(d) Governing Law . This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware applicable to contacts made in and solely to be performed therein.
(e) Tax Withholding . The Company shall withhold from any payments made to Executive under this Agreement any amounts determined by the Company to be required to be withheld by applicable federal, state or local tax law.
(f) Legal Counsel . You acknowledge that you have received, or had the opportunity to receive, independent legal advice from legal counsel of his choice prior to executing this Agreement and that you have no not relied on any representations or statements made by the Company that are not specifically set forth in this Agreement.
(g) Entire Agreement . This Agreement represents the entire understanding of the parties hereto with respect to the matters set forth herein and supersedes any prior understandings or agreements between the parties with respect thereto. The terms and provisions of this Agreement may not be modified or amended except in a writing signed by both parties. If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(h) No Waiver . No waiver by either party of any breach by the other party of any condition or provision contained in this Agreement to be fulfilled or performed by such other party shall be deemed a waiver of a similar or dissimilar condition or provision at the same or any prior or subsequent time. Except to the extent otherwise specifically provided herein, any waiver must be in writing and signed by you or, on behalf of the Company, by the Company’s chief executive officer, as the case may be.
(i) Remedies Not Exclusive . Nothing in this Agreement shall be construed as prohibiting either party from, pursuing any other, remedy or remedies not specified herein, including, without limitation, the recovery of damages.
If this Agreement correctly sets forth our mutual agreement, please sign and return one copy to me.
Very truly yours,
/s/ Richard S. Chernicoff
Richard S. Chernicoff
Chairman of the Board
ACCEPTED AND AGREED AS OF THE DATE FIRST WRITTEN ABOVE:
/s/ Philip A. Vachon
Philip A. Vachon