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EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") by and among COTELLIGENT, INC., a
Delaware corporation ("Cotelligent"), FASTECH, INC. (the "Subsidiary"), a
wholly-owned subsidiary of Cotelligent, and RICHARD M. HIRSH (Employee") is
hereby entered into and effective as of the 4th day of January, 1999 ("Effective
Date"). This Agreement hereby supersedes any other employment agreements or
understandings, written or oral, among the Subsidiary, Cotelligent and Employee.
R E C I T A L S
Whereas, as of the Effective Date, the Subsidiary is engaged primarily in the
business of providing computer consulting and contract programming services;
Whereas, as of the Effective Date, Cotelligent is acquiring all of the capital
stock of Subsidiary pursuant to an Agreement and Plan of Reorganization and
Merger, dated as of even date herewith among Cotelligent; Cotelligent
Philadelphia, Inc.; Broomall SFA, Inc.; and each stockholder of Broomall SFA,
Inc. (the "Purchase Agreement");
Whereas, in order to facilitate, and as a condition to the closing of the
Purchase Agreement, the Employee must enter into this Agreement with the
Subsidiary and Cotelligent, including the non-competition provisions contained
herein;
Whereas Employee is employed hereunder by the Subsidiary in a confidential
relationship wherein Employee, in the course of his employment with the
Subsidiary, has and will continue to become familiar with and aware of
information as to the Subsidiary's and Cotelligent's customers, specific manner
of doing business, including the processes, techniques and trade secrets
utilized by the Subsidiary and Cotelligent, and future plans with respect
thereto, all of which has been and will be established and maintained at great
expense to the Subsidiary and Cotelligent; this information is a trade secret
and constitutes the valuable good will of the Subsidiary and Cotelligent; and
Whereas, the Subsidiary and Cotelligent desire to assure themselves that the
experience and skill of Employee will remain available to the Subsidiary and
Cotelligent and their respective successors.
Therefore, in consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, it is hereby agreed as
follows:
A G R E E M E N T S
1. Employment and Duties.
(a) The Subsidiary hereby employs Employee as President. As such,
Employee shall have responsibilities, duties and authority reasonably
accorded to and
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expected of a President and will report directly to the President and Chief
Operating Officer of Cotelligent or to such other senior executive of
Cotelligent as may be designated by the President and Chief Operating
Officer of Cotelligent. Employee hereby accepts this employment upon the
terms and conditions herein contained and, subject to Section 1(c), agrees
to devote his time, attention and efforts to promote and further the
business of the Subsidiary.
(b) Employee shall faithfully adhere to, execute and fulfill all
lawful policies established by the Subsidiary.
(c) Employee shall not, during the term of his employment hereunder,
be engaged in any other business activity pursued for gain, profit or other
pecuniary advantage if such activity interferes with Employee's duties and
responsibilities hereunder. The foregoing limitations shall not be
construed as prohibiting Employee from making personal investments in such
form or manner as will neither require his or her services in the operation
or affairs of the companies or enterprises in which such investments are
made nor violate the terms of Section 3 hereof.
2. Compensation. For all services rendered by Employee, the Subsidiary shall
compensate Employee as follows:
(a) Base Salary. Effective on the Effective Date, the base salary
payable to Employee shall be $175,000 per year, payable on a regular basis
in accordance with the Subsidiary's standard payroll procedures but not
less than monthly. On at least an annual basis, the President and Chief
Operating Officer will review Employee's performance and may make increases
to such base salary if, in its reasonable discretion, any such increase is
warranted. Such recommended increase would, in all likelihood, require
approval by the Board of Directors of Cotelligent or a duly constituted
committee thereof.
(b) Incentive Bonus Plan. For fiscal year ending March 31, 2000, and
subsequent fiscal years, Employee shall be eligible to participate in the
Cotelligent Compensation Plan, which sets forth the criteria under which
Employee and other officers and key employees will be eligible to receive
bonus awards. Employee shall not be eligible to participate in such
program for the fiscal year ending March 31, 1999.
(c) Executive Perquisites, Benefits and Other Compensation. Employee
shall be entitled to receive additional benefits and compensation from the
Subsidiary in such form and to such extent as specified below:
(i) Participation for Employee in coverage for Employee and his
dependent family members under health, hospitalization, disability,
dental, life and other insurance plans that the Subsidiary or
Cotelligent may have in effect from time to time, benefits provided to
Employee under this clause (i) to be at least equal to such benefits
provided to Cotelligent executives.
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(ii) Reimbursement for all business travel and other out-of-pocket
expenses reasonably incurred by Employee in the performance of his
services pursuant to this Agreement. All reimbursable expenses shall
be appropriately documented in reasonable detail by Employee upon
submission of any request for reimbursement, and in a format and
manner consistent with the Subsidiary's expense reporting policy.
(iii) Four (4) weeks paid vacation for each year during the period
of employment ending on the anniversary of the date on which the
period of employment commenced (pro rated for any year in which
Employee is employed for less than the full year).
(iv) The Subsidiary shall reimburse Employee $500.00 per month for
expenses incurred in connection with the leasing or acquisition of an
automobile.
(v) The Subsidiary shall provide Employee with other executive
perquisites consistent with those provided to other senior executives
of subsidiaries of Cotelligent as may be available to or deemed
appropriate for Employee by the Board of Directors of Cotelligent and
participation in all other Subsidiary-wide or Cotelligent-wide
employee benefits as available from time to time.
3. Non-Competition Agreement.
(a) Employee shall not, during the period of his employment by or with
the Subsidiary, and for a period of two (2) years immediately following the
termination of his employment under this Agreement, for any reason
whatsoever, directly or indirectly, for himself or on behalf of or in
conjunction with any other person, persons, company, partnership,
corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner, partner,
joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales
representative, in any business selling any products or services in
direct competition with the Subsidiary or Cotelligent (including the
respective subsidiaries thereof) within 100 miles of where the
Subsidiary or any of its subsidiaries conducts business (the
"Territory");
(ii) employ, offer to employ or call upon for the purpose or with
the intent of enticing away from or out of the employ of the
Subsidiary or Cotelligent (including the respective subsidiaries
thereof) any employee of the Subsidiary or Cotelligent (including the
respective subsidiaries thereof) who is employed, at that time, within
the Territory, in a sales representative or
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managerial capacity, provided that Employee shall be permitted to call
upon and hire any member of Employee's immediate family;
(iii) call upon any person or entity which is, at that time, or
which has been, within one (1) year prior to that time, a customer of
the Subsidiary or Cotelligent (including the respective subsidiaries
thereof) within the Territory for the purpose of soliciting or selling
products or services in direct competition with the Subsidiary or
Cotelligent within the Territory;
(iv) call upon any prospective acquisition candidate, on
Employee's own behalf or on behalf of any competitor in the computer
consulting and contract computer programming business, which candidate
was to Employee's knowledge called upon by either the Subsidiary or
Cotelligent (including the respective subsidiaries thereof) or for
which the Subsidiary or Cotelligent made an acquisition analysis, for
the purpose of acquiring such entity;
(v) disclose the identity of, or any other information in respect
of any customer, whether in existence or proposed, of the Subsidiary
or Cotelligent (including the respective subsidiaries thereof) or any
subsidiary thereof to any person, firm, partnership, corporation or
business for any reason or purpose whatsoever except to the extent
that the Subsidiary or Cotelligent (including the respective
subsidiaries thereof) has in the past disclosed such information to
the public for valid business reasons.
Notwithstanding the above, the foregoing covenant shall not be deemed
to prohibit Employee from acquiring as an investment not more than one
percent (1%) of the capital stock of a competing business, whose stock is
traded on a national securities exchange or over-the-counter.
(b) Employee acknowledges the difficulty of measuring economic losses
resulting from any breach of any of the provisions of this Section, that
the award of a monetary judgment for any such breach would be an inadequate
remedy and that immediate and irreparable damage could be caused thereby
and consequently, Employee agrees that (i) Cotelligent shall have the
right to obtain, in addition to any other rights Cotelligent may have, in
any court of competent jurisdiction or before any tribunal of arbitrators,
injunctive relief to restrain any breach or threatened breach, of any of
the provisions of this Section or otherwise to enforce specifically any of
the provisions of this Section, (ii) Cotelligent shall not be obligated to
post a bond or other security in seeking such relief and (iii) these
remedies shall be in addition to damages directly or indirectly suffered by
Cotelligent and reasonable attorneys fees.
(c) Employee acknowledges and agrees that each of the foregoing
covenants in this Section 3, individually and taken as a whole, impose a
reasonable restraint on Employee in light of the activities and business of
the Subsidiary or Cotelligent (including Cotelligent's other subsidiaries)
on the date of the execution of this Agreement and the current plans of
Cotelligent (including Cotelligent's other
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subsidiaries) and that it is the intent of the parties that such covenants
be construed and enforced in accordance with the changing activities,
business and locations of the Subsidiary and Cotelligent (including
Cotelligent's other subsidiaries) throughout the term of this covenant. For
example, if, during the term of this Agreement, the Subsidiary or
Cotelligent (including Cotelligent's other subsidiaries) engages in new and
different activities, enters a new business or establishes new locations
for its current activities or business in addition to or other than the
activities or business enumerated under the Recitals above or the locations
currently established therefore, then Employee will be precluded from
soliciting the customers or employees of such new activities or business or
from such new location and from directly competing with such new business
within 100 miles of its then-established operating location(s) through the
term of this covenant.
It is further agreed by the parties hereto that, in the event that
Employee shall cease to be employed hereunder, and shall enter into a
business or pursue other activities not in competition with the Subsidiary
or Cotelligent (including Cotelligent's other subsidiaries), or similar
activities or business in locations the operation of which, under such
circumstances, does not violate clause (i) of this Section 3, and in any
event such new business, activities or location are not in violation of
this Section 3 or of Employee's obligations under this Section 3, if any,
Employee shall not be chargeable with a violation of this Section 3 if the
Subsidiary or Cotelligent (including Cotelligent's other subsidiaries)
shall thereafter enter the same, similar or a competitive (i) business,
(ii) course of activities or (iii) location, as applicable.
(d) The covenants in this Section 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the
provisions of any other covenant.
(e) Employee acknowledges and agrees that a portion of the
consideration received by the Employee pursuant to this Agreement is paid
by the Subsidiary in exchange for the covenants contained in this Section,
and therefore, that each of the scope, time and territorial restrictions,
individually and taken as a whole, are reasonable. Moreover, in the event
any court of competent jurisdiction or any tribunal of arbitrators shall
determine that the scope, time or territorial restrictions set forth are
unreasonable, then it is the intention of the parties that such
restrictions be enforced to the fullest extent which such court or tribunal
of arbitrators deems reasonable, and that the several covenants contained
in this Section shall be thereby reformed.
(f) All of the covenants in this Section 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against the
Subsidiary or Cotelligent, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Cotelligent
or the Subsidiary of such covenants. It is specifically agreed that the
period of two (2) years stated at the beginning of this Section 3, during
which the agreements and covenants of Employee made in this Section 3 shall
be effective, shall be computed
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by excluding from such computation any time during which Employee is in
violation of any provision of this Section 3.
4. Place of Performance.
(a) Employee understands that he may be requested by Cotelligent to
relocate from his present residence to another geographic location in order
to more efficiently carry out his duties and responsibilities under this
Agreement or as part of a promotion or other increase in duties and
responsibilities. In such event, if Employee agrees to relocate, the
Subsidiary will pay all reasonable relocation costs to move Employee, his
immediate family and their personal property and effects. Such costs may
include, by way of example, but are not limited to, pre-move visits to
search for a new residence, investigate schools or for other purposes;
temporary lodging and living costs prior to moving into a new permanent
residence; duplicate home carrying costs; all closing costs on the sale of
Employee's present residence and on the purchase of a comparable residence
in the new location; and added income taxes that Employee may incur if any
relocation costs are not deductible for tax purposes. The general intent
of the foregoing is that Employee shall not personally bear any out-of-
pocket cost as a result of the relocation, with an understanding that
Employee will use his best efforts to incur only those costs which are
reasonable and necessary to effect a smooth, efficient and orderly
relocation with minimal disruption to the business affairs of the
Subsidiary and the personal life of Employee and his family.
(b) Notwithstanding the above, if Employee is requested by Cotelligent
to relocate and Employee refuses, such refusal shall not constitute "cause"
for termination of this Agreement under the terms of Section 5(c).
5. Term; Termination; Rights on Termination. The term of this Agreement
shall begin on the date hereof and continue for three (3) years, unless
terminated sooner as herein provided. This Agreement and Employee's employment
may be terminated in any one of the following ways:
(a) Death. The death of Employee shall immediately terminate this
Agreement with no severance compensation due to Employee's estate.
(b) Disability. If, as a result of incapacity due to physical or
mental illness or injury, Employee shall have been absent from his full-
time duties hereunder for four (4) consecutive months, then thirty (30)
days after receiving written notice (which notice may occur before or after
the end of such four (4) month period, but which shall not be effective
earlier than the last day of such four (4) month period), the Subsidiary
may terminate Employee's employment hereunder provided Employee is unable
to resume his full-time duties at the conclusion of such notice period.
Also, Employee may terminate his employment hereunder if his health should
become impaired to an extent that makes the continued performance of his
duties hereunder hazardous to his physical or mental health or his life,
provided that Employee shall have furnished the Subsidiary with a written
statement from a qualified doctor to such effect and provided,
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further, that, at the Subsidiary's request made within thirty (30) days of
the date of such written statement, Employee shall submit to an examination
by a doctor selected by the Subsidiary who is reasonably acceptable to
Employee or Employee's doctor and such doctor shall have concurred in the
conclusion of Employee's doctor. In the event this Agreement is terminated
pursuant to this Section 5(b), Employee shall receive from the Subsidiary,
in a lump-sum payment, within ten (10) days of the effective date of
termination, the base salary at the rate then in effect for whatever time
period is remaining under the term of this Agreement or for one (1) year,
whichever amount is lesser.
(c) Good Cause. The Subsidiary may terminate the Agreement forthwith
after giving written notice to Employee for good cause, which shall be: (i)
Employee's willful, material and irreparable breach of this Agreement; (ii)
Employee's gross negligence in the performance or intentional
nonperformance (continuing for ten (10) days after receipt of written
notice of need to cure) of any of Employee's material duties and
responsibilities hereunder; (iii) Employee's willful dishonesty, fraud or
misconduct with respect to the business or affairs of the Subsidiary or
Cotelligent which materially and adversely affects the operations or
reputation of the Subsidiary or Cotelligent; (iv) Employee's conviction of
a felony crime other than traffic offenses; or (v) chronic alcohol abuse or
illegal drug abuse by Employee. In the event of a termination for good
cause, as enumerated above, Employee shall have no right to any severance
compensation.
(d) Without Cause. Should Employee be terminated by the Subsidiary
without cause, Employee shall continue to receive from the Subsidiary or
Cotelligent the base salary at the rate then in effect for whatever time
period is remaining under the term of this Agreement or for one (1) year,
whichever amount is lesser.
(e) Good Reason. Employee may resign and terminate his employment
hereunder for "Good Reason" (which shall also be deemed a termination by
the Subsidiary without cause). For purposes of this Agreement, "Good
Reason" means (i) the failure to elect and continue Employee as President
of the Subsidiary, (ii) assignment to Employee of duties, authorities,
responsibilities and reporting requirements materially inconsistent with
his position and otherwise as set forth herein, or if the scope of
Employee's duties and responsibilities as President of the Subsidiary are
in the aggregate materially reduced, (iii) a breach by the Subsidiary or
Cotelligent of any material provision of this Agreement, including, but not
limited to, a reduction in or failure to make timely payment of Employee's
compensation and benefits from those required to be paid or provided in
accordance with the provisions of this Agreement, or (iv) the failure of
the Subsidiary to obtain the written assumption of its obligations to
perform this Agreement by any successor to all or substantially all of the
assets of the Subsidiary at or before consummation of a merger,
consolidation, sale or similar transaction.
(f) If Employee resigns or otherwise terminates his employment without
cause, Employee shall receive no severance compensation.
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6. Return of Subsidiary Property. All records, designs, patents, business
plans, financial statements, financial records, manuals, memoranda, lists and
other property delivered to or compiled by Employee by or on behalf of the
Subsidiary, Cotelligent or their representatives, vendors or customers which
pertain to the business of the Subsidiary or Cotelligent shall be and remain the
property of the Subsidiary or Cotelligent, as the case may be, and be subject at
all times to their discretion and control. Likewise, all correspondence,
reports, records, charts, advertising materials and other similar data
pertaining to the business, activities or future plans of the Subsidiary or
Cotelligent which is collected by Employee shall be delivered promptly to the
Subsidiary without request by it upon termination of Employee's employment.
7. Inventions. Employee shall disclose promptly to Cotelligent and the
Subsidiary any and all significant conceptions and ideas for inventions,
improvements and valuable discoveries, whether patentable or not, which are
conceived or made by Employee, solely or jointly with another, during the period
of employment or within one (1) year thereafter, and which are directly related
to the business or activities of the Subsidiary or Cotelligent and which
Employee conceives as a result of his employment by the Subsidiary. Employee
hereby assigns and agrees to assign all his interests therein to the Subsidiary
or its nominee. Whenever requested to do so by the Subsidiary, Employee shall
execute any and all applications, assignments or other instruments that the
Subsidiary shall deem necessary to apply for and obtain Letters Patent of the
United States or any foreign country or to otherwise protect the Subsidiary's
interest therein.
8. Trade Secrets. Employee agrees that he will not, during or after the term
of this Agreement with the Subsidiary, disclose the specific terms of the
Subsidiary's or Cotelligent's relationships or agreements with their respective
significant vendors or customers or any other significant and material trade
secret of the Subsidiary or Cotelligent, whether in existence or proposed, to
any person, firm, partnership, corporation or business for any reason or purpose
whatsoever other than as required by law or to attorneys or accountants or other
agents of the Subsidiary.
9. Indemnification. In the event Employee is made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by the Subsidiary or
Cotelligent against Employee), by reason of the fact that he is or was
performing services under this Agreement, then the Subsidiary shall indemnify
and hold harmless the Employee against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement, as actually and reasonably
incurred by Employee in connection therewith, provided that Employee has met the
applicable standard of conduct set forth in Section 145(a) of the Delaware
General Corporation Law ("Delaware Code") with respect to such an action, as
determined in accordance with the requirements of Section 145(d) of the Delaware
Code. In the event that both Employee and the Subsidiary are made a party to
the same third-party action, complaint, suit or proceeding, the Subsidiary or
Cotelligent agrees to engage competent legal representation, and Employee agrees
to use the same representation, provided that if counsel selected by Cotelligent
shall have a conflict of interest that prevents such counsel from representing
Employee, Employee
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may engage separate counsel and the Subsidiary or Cotelligent shall pay all
attorneys' fees and costs of such separate counsel. Further, while Employee is
expected at all times to use his best efforts to faithfully discharge his duties
under this Agreement, Employee cannot be held liable to the Subsidiary or
Cotelligent for errors or omissions made in good faith where Employee has not
exhibited gross, willful and wanton negligence and misconduct or performed
criminal and fraudulent acts which materially damage the business of the
Subsidiary.
10. No Prior Agreements. Employee hereby represents and warrants to the
Subsidiary that the execution of this Agreement by Employee and his employment
by the Subsidiary and the performance of his duties hereunder will not violate
or be a breach of any agreement or other duty or obligation with or to any
former employer, client or any other person or entity, including, without
limitation, any non-competition agreement, invention or secrecy agreement
between Employee and any such person or entity which was in existence as of the
date of this Agreement. Further, Employee agrees to indemnify the Subsidiary
for any claim, action, loss, damage, liability or expense (including, but not
limited to, attorneys' fees and expenses of investigation) based upon or arising
out of any breach of the representation and warranty set forth in the preceding
sentence or any assertion by any other person or entity of actions or omissions
by Employee which, if true, constitute such a violation or breach. The
provisions of this Section shall survive the term of Employee's employment
hereunder and any termination of this Agreement.
11. Assignment; Binding Effect. Employee understands that he has been
selected for employment by the Subsidiary on the basis of his personal
qualifications, experience and skills. Employee agrees, therefore, he cannot
assign all or any portion of his performance under this Agreement. Subject to
the preceding two (2) sentences and the express provisions of Section 12 below,
this Agreement shall be binding upon, inure to the benefit of and be enforceable
by the parties hereto and their respective heirs, legal representatives,
successors and assigns.
12. Complete Agreement. This Agreement is not a promise of future
employment. Employee has no oral representations, understandings or agreements
with the Subsidiary or any of its officers, directors or representatives
covering the same subject matter as this Agreement. This written Agreement is
the final, complete and exclusive statement and expression of the agreement
between the Subsidiary and Employee and of all the terms of this Agreement, and
it cannot be varied, contradicted or supplemented by evidence of any prior or
contemporaneous oral or written agreements. This written Agreement may not be
later modified except by a further writing signed by a duly authorized officer
of the Subsidiary and Employee, and no term of this Agreement may be waived
except by writing signed by the party waiving the benefit of such term.
13. Notice. Whenever any notice is required hereunder, it shall be given in
writing addressed as follows:
To the Subsidiary: Fastech, Inc.
401 Parkway Drive
Broomall, PA 19008
Attn: Richard M. Hirsh
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with a copy to: Cotelligent, Inc.
101 California Street
Suite 2050
San Francisco, CA 94111
Attn: General Counsel
To Employee: Mr. Richard M. Hirsh
8 Harvey Lane
Newtown Square, PA 19073
with a copy to: Connolly Epstein Chicco Foxman Ocholm & Ewing
1515 Market Street, 9th Floor
Philadelphia Pennsylvania 19102
Attn: Stephen M. Foxman, Esq.
Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received. Either party
may change the address for notice by notifying the other party of such change in
accordance with this Section.
14. Severability; Headings. If any portion of this Agreement is held invalid
or inoperative, the other portions of this Agreement shall be deemed valid and
operative and, so far as is reasonable and possible, effect shall be given to
the intent manifested by the portion held invalid or inoperative. The Section
headings herein are for reference purposes only and are not intended in any way
to describe, interpret, define or limit the extent or intent of the Agreement or
of any part hereof.
15. Arbitration. Any unresolved dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three (3) arbitrators in Philadelphia, Pennsylvania,
in accordance with the rules of the American Arbitration Association then in
effect. The arbitrators shall not have the authority to add to, detract from,
or modify any provision hereof nor to award punitive damages to any injured
party. The arbitrators shall have the authority to order back-pay, severance
compensation, vesting of options (or cash compensation in lieu of vesting of
options), reimbursement of costs, including those incurred to enforce this
Agreement, and interest thereon in the event the arbitrators determine that
Employee was terminated without disability or good cause, as defined in Sections
5(b) and 5(c), respectively, or that the Subsidiary has otherwise materially
breached this Agreement. A decision by a majority of the arbitration panel
shall be final and binding. Judgment may be entered on the arbitrators' award
in any court having jurisdiction. The direct expense of any arbitration
proceeding shall be borne by the Subsidiary.
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16. Governing Law. Except as specifically required under Section 9 hereof,
this Agreement shall in all respects be construed according to the laws of the
Commonwealth of Pennsylvania.
17. Counterparts. This Agreement may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed an original, and all of
which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
FASTECH, INC.
By: /s/ John E. Higgins
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Name: John E. Higgins
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Title: Vice President
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EMPLOYEE:
/s/ Richard M. Hirsh
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Richard M. Hirsh
COTELLIGENT, INC.
By: /s/ Lorraine E. Vega
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Name: Lorraine E. Vega
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Title: Secretary
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