EMPLOYMENT AGREEMENT
Exhibit 10.5
Execution Copy
Execution Copy
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is dated as of July ___, 2005, and is between
A-XXXX PRECIOUS METALS, INC., a New York corporation (“Company”), and XXXX XxXXXX, an individual
(“Xx. XxXxxx”), and is made with reference to the following facts.
STATEMENTS OF FACT:
A. Xx. XxXxxx is currently employed by Company as its Senior Vice President, pursuant to
that certain employment agreement dated August 18, 1995, between Company and Xx. XxXxxx (the
“Existing Agreement”).
B. Company now wishes to continue to employ Xx. XxXxxx, and Xx. XxXxxx wishes to continue to
be so employed, on the terms and conditions set forth in this Agreement. The Existing Agreement
is hereby superceded and replaced in its entirety.
NOW, THEREFORE, Company and Xx. XxXxxx hereby agree as follows:
1. Employment; Term. Company hereby employs Xx. XxXxxx, and Xx. XxXxxx hereby
accepts employment with Company, in accordance with and subject to the terms and conditions set
forth in this Agreement. The initial term of this Agreement (the “Initial Term”) commences on
the date of this Agreement and, unless earlier terminated in accordance with Section 6, will
terminate on the fifth anniversary of the date of this Agreement. Company and Xx. XxXxxx may
extend the term of this Agreement for one or more additional one (1) year periods by written
agreement signed by them prior to the end of the Initial Term or the then-current extension
thereof, as applicable (the Initial Term and any extensions thereof, the “Term”).
2. Duties. (a) During the Term, Xx. XxXxxx shall serve as Senior Vice President of
Company and shall report to the Chief Executive Officer of Company. Xx. XxXxxx’x primary duties
will be to identify, fully disclose and present to Company for its possible investment, any and
all business opportunities, whether passive or active, whether related or unrelated to Company’s
primary business that he becomes aware of while an employee of Company, either because of his
position as Senior Vice President or otherwise. In addition, he will have such duties and
responsibilities as are customary for Xx. XxXxxx’x position and any other duties or
responsibilities he may be reasonably assigned by Company’s Chief Executive Officer.
(b) During the period Xx. XxXxxx is employed by Company, Xx. XxXxxx shall be required to
devote his full business time and best efforts exclusively to the business and affairs of
Company and will not directly or indirectly engage in any other business or competitive activity
which has not been disclosed to and approved in writing by Company, including, without
limitation, any investments of financial arrangements related to precious
metals, coins and stamps, sports memorabilia, space memorabilia, autographs, historical
documents or books.
Employment
Agreement — Page 1
(c) Except in the ordinary course of performing his duties hereunder and in accordance with
Company’s annual business plan and any other guidelines or policies approved by Company’s Chief
Executive Officer or Board of Directors, Xx. XxXxxx shall not have the authority to create or
execute any contract or obligation, either express or implied, on behalf of or in the name of
Company or any of its affiliates, which is intended to be binding upon Company or for which
Company would be liable without the prior written consent of Company’s Chief Executive Officer.
3. Compensation. (a) Company shall pay Xx. XxXxxx a salary of Two Hundred Nine
Thousand Dollars ($209,000.00) per annum (the “Base Salary”). In addition, Xx. XxXxxx will receive
a one-time signing payment in the amount of Fifty Thousand Dollars ($50,000.00) (“Signing
Payment”) upon execution of this Agreement and a year-end performance bonus (“Percentage Bonus”)
calculated and paid as described below. Payment of the Base Salary, Signing Payment and Percentage
Bonus will be in accordance with Company’s standard payroll practices and subject to all legally
required or customary withholdings.
(b) For each fiscal year of employment in which Company’s shareholder equity is in excess of
Ten Million Dollars ($10,000,000.00), Company shall pay to Xx. XxXxxx, within ninety (90) calendar
days from the close of that fiscal year, a Percentage Bonus equal to seven and one-half percent
(7½%) of its Net Pre-Tax Annual Income (as defined below). For this purpose Company’s
“shareholder equity” shall only be reduced by losses from its business operations as determined by
the independent certified accountants regularly retained by Company, in accordance with
consistently and conservatively applied generally accepted accounting principles. Nothing herein
prevents the Company from paying Xx. XxXxxx additional bonus amounts.
(c) In the event that Xx. XxXxxx’x employment is terminated by Company during a fiscal year
and Xx. XxXxxx is entitled to receive the Percentage Bonus for the period of such fiscal year
during which Xx. XxXxxx was employed by Company pursuant to Section 7(a) or 7(c) below, the parties
agree that: (i) Percentage Bonus shall be calculated on the Net Pre-Tax Annual Income of Company
reported only during the period of the then current fiscal year during which Xx. XxXxxx was
employed, and (ii) the determination of Net Pre-Tax Annual Income shall take into account only
sales revenues arising from those transactions with respect to which Company entered into binding
contracts or purchases and sales tickets prior to the termination of employment and which are
consummated within sixty (60) days following such date.
(d) Subject to the provisions of this Section 3(e), the “Net Pre-Tax Annual Income” as used in
this Agreement shall mean the pre-tax operating income, before bonuses are paid, as per the books
and records for a fiscal year, or the portion thereof during which Xx. XxXxxx is employed if less
than a full fiscal year, as determined by the independent certified accountants regularly retained
by Company, in accordance with consistently and conservatively applied generally accepted
accounting principles, adjusted for (i) any and all compensation paid,
or accrued and payable, to other employees and independent contractors of Company, and (ii)
any other amounts payable to Xx. XxXxxx pursuant to this Agreement. In determining the Net
Pre-Tax Annual Income all interest on loans accrued or paid by Company, whether to third
parties, shareholders of Company or to affiliated entities, shall be deducted from Company’s
Employment
Agreement — Page 2
gross income prior to arriving at the Net Pre-Tax Annual Income. No increase in historical
amortization of goodwill, if any, nor any direct cost incurred in connection with the consummation
of the transactions contemplated by the Stock Purchase Agreement, dated as of the date hereof, by
and among Spectrum PMI, Inc., A-Xxxx Holding, Inc. and Xxxxxx X. Xxxxxxx shall be deducted from
Company’s gross income prior to arriving at the Net Pre-Tax Annual Income.
4. Stock Appreciation Right. Concurrently with execution and delivery of this
Agreement, Xxxx Xxxxxxx Auctions, Inc. (“GMAI”), the indirect 80% parent of Company shall, pursuant
to a Stock Appreciation Right Agreement between GMAI and Xx. XxXxxx in the form of Exhibit A
attached hereto, grant to Xx. XxXxxx a stock appreciation right with respect to Twenty-Five
Thousand (25,000) shares of common stock of GMAI.
5. Benefits.
(a) Upon submission by Xx. XxXxxx of vouchers in accordance with Company’s standard
procedures, Company shall reasonably promptly reimburse Xx. XxXxxx for all reasonable and
necessary travel, business entertainment and other business expenses incurred by Xx. XxXxxx in
connection with the performance of his duties under this Agreement.
(b) Xx. XxXxxx is entitled to participate in any and all medical insurance, group health,
disability insurance, employee bonus compensation programs and other benefit plans that are made
generally available by Company to employees of Company. Company shall pay all premiums payable in
connection with medical insurance provided for Xx. XxXxxx. Additionally, Xx. XxXxxx is entitled
to receive four (4) weeks paid vacation a year and paid holidays made available pursuant to
Company’s policy to all employees of Company. Company, in its sole discretion, may at any time
amend or terminate any such benefit plans or programs.
6. Termination. Xx. XxXxxx’x employment hereunder may be terminated prior to the end
of the Term under the following circumstances:
(a) Xx. XxXxxx’x employment hereunder will terminate upon Xx. XxXxxx’x death.
(b) Except as otherwise required by law, Company may terminate Xx. XxXxxx’x employment
hereunder at any time after Xx. XxXxxx becomes Totally Disabled. For purposes of this Agreement,
Xx. XxXxxx will be “Totally Disabled” as of the earlier of (1) the date Xx. XxXxxx becomes
entitled to receive disability benefits under Company’s long-term disability plan, or (2) Xx.
XxXxxx’x inability to perform the duties and responsibilities contemplated under this Agreement
for a period of more than ninety (90) consecutive days due to physical or mental incapacity or
impairment.
(c) Company may terminate Xx. XxXxxx’x employment hereunder for Cause at any time after
providing written notice to Xx. XxXxxx. For purposes of this Agreement, “Cause” means any of
the following:
Employment Agreement — Page 3
(1) Xx. XxXxxx’x neglect or failure or refusal to perform his duties under this Agreement
(other than as a result of total or partial incapacity due to physical or mental illness);
(2) any wrongful act by or omission of Xx. XxXxxx that materially injures the reputation,
business, or business relationship of Company or any of its affiliates, or that, in the good faith
judgment of Company, constitutes fraud or intentional misconduct;
(3) Xx. XxXxxx’x conviction (including conviction on a nolo contendere
plea) of a felony or any crime involving, in the good faith judgment of Company, fraud, dishonesty
or moral turpitude;
(4) the breach of an obligation set forth in Section 8, 9 or 10;
(5) any other material breach of this Agreement; or
(6) upon the sale of all or substantially all of the stock or assets of Company or the
shutdown of its operations.
In the cases of “neglect or failure” to perform his duties under this Agreement as set forth in
6(c)(1) above, or material breach as set forth in 6(c)(5) above, a termination by Company with
Cause shall be effective only if, within thirty (30) days following delivery of a written notice
by Company to Xx. XxXxxx that Company is terminating his employment with Cause (which notice shall
set forth the basis of the alleged neglect, failure or breach), Xx. XxXxxx has failed to cure the
circumstances giving rise to such Cause.
(d) Company may terminate Xx. Xxxxxx’x employment hereunder for any reason, upon thirty (30)
days’ prior written notice.
(e) Xx. XxXxxx may terminate his employment hereunder for “Good Reason” if Company decreases
or fails to pay Xx. XxXxxx’x Base Salary or Percentage Bonus as provided in Section 3 or the
benefits described in Section 5 above, or if Company makes a material change in Xx. XxXxxx’x job
description or duties. A termination by Xx. XxXxxx shall be effective only if, within thirty (30)
days following delivery of a written notice by Xx. XxXxxx to Company that Xx. XxXxxx is
terminating his employment (which notice shall set forth the alleged decrease or failure by
Company), Company has failed to cure the circumstances giving rise to the termination.
7. Compensation Following Termination Prior to the End of the Term. In the event that
Xx. XxXxxx’x employment hereunder is terminated prior to the end of the Term, Xx. XxXxxx will be
entitled only to the following compensation and benefits upon such termination:
(a) In the event that Xx. XxXxxx’x employment hereunder is terminated prior to the
expiration of the Term by reason of Xx. XxXxxx’x death or
if he becomes Totally Disabled pursuant
to Sections 6(a) or 6(b), respectively, Company shall pay the following amounts to Xx. XxXxxx (or
to Xx. XxXxxx’x estate, as the case may be):
Employment Agreement — Page 4
(1) any
accrued but unpaid Base Salary (as determined pursuant to Section 3) for services
rendered to the date of termination;
(2) any
incurred but unreimbursed expenses required to be reimbursed pursuant to Sections 5(a)
or 5(b), payable within thirty (30) days following
Xx. XxXxxx’x submission of vouchers in accordance
with Company’s standard business procedures;
(3) any vacation accrued and unused to the date of termination; and
(4) Percentage
Bonus through the termination date for the fiscal year in which termination
occurs, payable within sixty (60) days of the date of termination.
(b) In
the event that Xx. XxXxxx’x employment hereunder is terminated prior to the expiration
of the Term by Company for Cause pursuant to Section 6(c), or by
Xx. XxXxxx without Good Reason,
Company shall pay the following amounts to Xx. XxXxxx:
(1) any
accrued but unpaid Base Salary (as determined pursuant to Section 3) for services
rendered to the date of termination;
(2) any
incurred but unreimbursed expenses required to be reimbursed pursuant to Sections 5(a)
or 5(b), payable within thirty (30) days following
Xx. XxXxxx’x submission of vouchers in accordance
with Company’s standard business procedures; and
(3) any vacation accrued and unused to the date of termination.
(c) In
the event that Xx. XxXxxx’x employment hereunder is terminated by Company without Cause
pursuant to Section 6(d), or by Xx. XxXxxx with Good Reason
pursuant to Section 6(e), Company shall
pay the following amounts to Xx. XxXxxx:
(1) any
accrued but unpaid Base Salary (as determined pursuant to Section 3) for services
rendered to the date of termination;
(2) any
incurred but unreimbursed expenses required to be reimbursed pursuant to Sections 5(a)
or 5(b), payable within thirty (30) days following
Xx. XxXxxx’x submission of vouchers in accordance
with Company’s standard business procedures;
(3) any vacation accrued and unused to the date of termination;
(4) Percentage
Bonus through the termination date for the fiscal year in which termination
occurs, payable within sixty (60) days of the date of termination; and
(5) continued
payments of Base Salary until the one year anniversary of the date of termination
of Xx. XxXxxx’x employment, payable in installments in
accordance with Company’s standard payroll
practices. Except as otherwise required by law, the payment of any
amounts pursuant to this Section 7(c)(5) shall be due and payable only after the delivery by Xx. XxXxxx to Company of a release in
form and substance reasonably satisfactory to Company of any and all claims Xx. XxXxxx may have
against Company and its directors, officers, employees, subsidiaries, affiliates, stockholders,
successors, assigns, agents and representatives
Employment Agreement — Page 5
as of the date of such release arising out of or related to Xx. XxXxxx’x employment by Company and
the termination of such employment.
(d) In
the event Xx. XxXxxx’x employment hereunder is terminated by Company pursuant to Section
6(c)(6), Xx. XxXxxx shall receive, in addition to any other payments he is entitled to hereunder,
continued payments of Base Salary until the one year anniversary of the date of termination of Xx.
XxXxxx’x employment, payable in installments in accordance with Company’s standard payroll
practices, unless Xx. XxXxxx is offered an opportunity to retain his then current position and
compensation package with the new owner of Company or its business, in which event no severance pay
shall be paid.
(e) The
benefits to which Xx. XxXxxx may be entitled upon termination pursuant to the plans,
policies and arrangements referred to in Section 5(b) will be
determined and paid in accordance
with the terms of those plans, policies and arrangements.
(f) Except
as may be provided under this Agreement, under the terms of any incentive
compensation, employee benefit, or fringe benefit plan applicable to
Xx. XxXxxx at the time of
termination of Xx. XxXxxx’x employment prior to the end of
the Term, Xx. XxXxxx will not be
entitled to receive any other compensation, or to participate in any
other plan, arrangement or
benefit, with respect to any future period after his termination or resignation.
8. Proprietary Information.
(a) Xx. XxXxxx
acknowledges that during the course of his employment with Company he will
necessarily have access to and make use of proprietary information
and confidential records of
Company and its affiliates. Xx. XxXxxx shall not during the Term
or at any time thereafter
directly or indirectly use for his own purpose or for the benefit of
any person or entity other
than Company or it affiliates, nor otherwise disclose any proprietary information to any person or
entity, unless that disclosure has been authorized in writing by Company or is otherwise required
by law.
(b) Xx. XxXxxx understands that subject to Section 8(c), the term
“proprietary information” includes, but is not limited to, the following:
(1) the
name and address of any customer or vendor of Company or any of its affiliates,
including without limitation any information concerning the
transactions with such customers and
vendors, buying and selling requirements of such customers and vendors, or their criteria or habits,
or Company’s relations with any such customer or vendor, including credit policies, all of which
constitutes Company’s trade secrets;
(2) any
information concerning any product, technology, or procedure employed by Company or its
affiliates but not generally known to their customers, vendors or competitors, or under development
by or being tested by Company or its affiliates, but not at the time offered generally to customers
or vendors;
(3) any
information relating to Company’s or its affiliates computer software, computer
systems, pricing or marketing methods, sales margins, credit policies, cost of
Employment Agreement — Page 6
goods, cost of material, capital structure, operating results, borrowing arrangements or business
plans;
(4) any
information which is generally regarded as confidential or proprietary in any line of
business engaged in by Company or its affiliates;
(5) any
business plans, budgets, advertising or marketing plans of Company or its affiliates;
(6) any
information contained in any of Company’s or its affiliates written or oral policies
and procedures or manuals;
(7) any
information belonging to customers, vendors or affiliates of Company or any other
person or entity which Company has agreed to hold in confidence;
(8) any
inventions, innovations or improvements covered by this Agreement;
(9) salary,
staffing, employment and contractor information of Company or its
affiliates; and
(10) all
materials relating to or embodying any of the foregoing, whether in a handwritten,
printed, graphic, video, audio, electronic or other medium.
(c) Xx. XxXxxx acknowledges that information that is not novel
or copyrighted or patented may nonetheless be proprietary information.
(d) The
term “proprietary information” does not include information generally available to
and known by the public or information that is or becomes available
to Xx. XxXxxx on a
non-confidential basis from a source other than Company or its
affiliates or their respective
directors, officers, employees, partners, principals or agents (other
than as a result of a breach
of any obligation of confidentiality).
(e) Xx. XxXxxx
acknowledges and agrees that the unauthorized sale or use of Company’s
proprietary information constitutes unfair competition.
Xx. XxXxxx covenants and agrees not to
engage in any unfair competition with Company either during the Term
or any time thereafter.
(f) Xx. XxXxxx
acknowledges and agrees that no employee of Company, including himself, has
any private space within Company’s premises.
9. Surrender of Records. All proprietary information is and will remain the sole and
exclusive property of Company (or its affiliates, as the case may be) during the Term and
thereafter. Following termination of his employment hereunder for any reason, Xx. XxXxxx may not
retain any proprietary information, nor any copies thereof and shall promptly return to Company any
proprietary information and all copies thereof in his possession or control.
Employment Agreement — Page 7
10. Intellectual Property. All inventions, innovations or improvements
(including, without limitation, policies, procedures, products, software, ideas and discoveries,
whether patents, copyrights, trademarks, service marks, or otherwise) conceived or made by Xx.
XxXxxx, either alone or jointly with others, in the course of his employment by Company, and
any derivatives of any such inventions, innovations, or improvements,
belong to Company. Xx. XxXxxx
shall promptly disclose to Company in writing all such inventions,
innovations or improvements and
perform all actions reasonably requested by Company to establish and confirm ownership by Company,
including, but not limited to, cooperating with and assisting Company in obtaining patents,
copyrights, trademarks, or service marks for Company in the United States and in foreign countries.
11. Confidentiality. Xx. XxXxxx shall keep confidential the terms of this
Agreement. This provision does not prohibit Xx. XxXxxx from providing this information to his
attorneys or accountants for purposes of obtaining legal or tax advice or as otherwise required by
law. Company shall not disclose the terms of this Agreement except as necessary in the
ordinary course of its business or as required by law.
12. Enforcement.
Xx. XxXxxx acknowledges that, by virtue of his position, his services
and access to and use of confidential records and proprietary
information, any violation by him of
any of the undertakings contained in Sections 8 through 11 may
cause Company and its affiliates
immediate, substantial and irreparable injury for which it has no
adequate remedy at law.
Accordingly, Xx. XxXxxx consents to Company and its affiliates
seeking entry of an injunction or
other equitable relief from a court of competent jurisdiction
restraining any violation or
threatened violation of any undertaking contained in Sections 8
through 11. Xx. XxXxxx waives
posting by Company of any bond otherwise necessary to secure any such injunction or other equitable
relief. Rights and remedies provided for in this Section 12 are cumulative and shall be in
addition to rights and remedies otherwise available to the
parties hereunder or under any other
agreement or applicable law.
13. Notices. Every notice or other communication required or contemplated by
this Agreement must be in writing and sent by one of the following
methods: (1) personal delivery, in
which case delivery is deemed to occur the day of delivery; (2) certified or registered
mail, postage prepaid, return receipt requested, in which case delivery is deemed to occur the day
it is officially recorded by the U.S. Postal Service as delivered to the intended recipient; or (3)
next-day delivery to a U.S. address by recognized overnight delivery service such as Federal
Express, in which case delivery is deemed to occur one business day after being sent. In each
case, a notice or other communication sent to a party must be directed to the address for that party
set forth below, or to another address designated by that party by written notice:
Employment Agreement — Page 8
| If to Company, to: | ||||||
| A-XXXX PRECIOUS METALS, INC. | ||||||
| c/o Spectrum Numismatics International, Inc. | ||||||
| 00000 Xxxxx, Xxxxx 000 | ||||||
| Xxxxxx, Xxxxxxxxxx 00000 | ||||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||||
| With a copy to: | ||||||
| XXXXXX XXXXX XXXXXXXX & XXXXXXX LLP | ||||||
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||||
| Attention: Xxxxx X. Xxxxxxxxx, Esq. | ||||||
| and a copy to: | ||||||
| XXXX & XXXXX, LLP | ||||||
| 00000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxx X000 | ||||||
| Xxxxxx, Xxxxxxxxxx 00000 | ||||||
| Attention: Xxxxxxx Xxxx, Esq. | ||||||
| If to Xx. XxXxxx, to: | ||||||
| XXXX XXXXXX | ||||||
| With a copy to: | ||||||
| Attention: | ||||||
14. Assignability; Binding Effect. This Agreement is a personal contract calling for
the provision of unique services by Xx. XxXxxx, and Xx. XxXxxx’x rights and obligations hereunder
may not be sold, transferred, assigned, pledged or hypothecated. In the event of any attempted
assignment or transfer of rights or obligations hereunder by Xx. XxXxxx contrary to the provisions
of this Agreement (other than any assignment or transfer of rights as may be required by law),
Company will have no further liability for payments under this Agreement. The rights and
obligations of Company under this Agreement bind and run in favor of the successors and assigns of
Company. Company may assign this Agreement or any or all of Company’s rights and obligations
hereunder without the prior consent of Xx. XxXxxx.
Employment Agreement — Page 9
15. Complete Understanding. Except for the Stock Option Agreement attached
hereto, this Agreement constitutes the complete understanding between the parties with respect
to the employment of Xx. XxXxxx by Company and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the subject matter
of
this Agreement, including without limitation, the Existing Agreement.
16. Amendments;
Waivers. This Agreement may not be amended except by an
instrument in writing signed on behalf of Company and Xx. XxXxxx. No waiver by any party of
any breach under this Agreement will be deemed to extend to any prior or subsequent breach or
affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
Waiver by either party of any breach by the other party will not operate as a waiver of any
other
breach, whether similar to or different from the breach waived. No delay on the part of
Company or Xx. XxXxxx in the exercise of any of their respective rights or remedies will
operate
as a waiver of that right.
17. Severability. If any provision of this Agreement or its application to any person
or circumstances is determined by any court of competent jurisdiction to be unenforceable to
any
extent, that unenforceable provision will be deemed eliminated to the extent necessary to
permit
the remaining provisions to be enforced, and the remainder of this Agreement, or the
application
of the unenforceable provision to other persons or circumstances, will not be affected
thereby. If
any provision of this Agreement, or any part thereof, is held to be unenforceable because of
the
scope or duration of or the area covered by that provision, the court making that
determination
shall reduce the scope, duration of or area covered by that provision or otherwise amend the
provision to the minimum extent necessary to make that provision enforceable to the fullest
extent permitted by law.
18. Survivability. The provisions of this Agreement that by their terms call for
performance subsequent to termination of Xx. XxXxxx’x employment hereunder, or of this
Agreement, will survive such termination.
19. Governing Law. This Agreement is governed by the laws of the State of
California, without giving effect to principles of conflict of laws.
20. Binding Arbitration. (a) Any controversy, dispute or claim arising out of or
relating to the interpretation, performance or breach of this Agreement, or Xx. XxXxxx’x
employment or termination of employment hereunder, shall be resolved by binding arbitration,
at
the request of either party, in Los Angeles County, California, in accordance with the rules
of the
American Arbitration Association then in effect. The arbitrators shall have the power to grant
all
legal and equitable remedies and award compensatory damages provided by California law. The
arbitrators shall issue a statement of findings of facts. The arbitrators shall be deemed to
have
“exceeded his powers” for purposes of California Code of Civil Procedure Sections 1286.2 or
1286.6 if they commit errors of law or legal reasoning. The award of the arbitrators may be
vacated or corrected pursuant to California Code of Civil Procedure. If for any reason a court
of
competent jurisdiction refuses to review the arbitration award for errors of law or legal
reasoning, at the request of either party, a three-person private review panel shall hear such
matters. Each of the parties shall select one member of the private review panel, and these
two
panel members shall select the third member of the panel. Any judgment upon any award
Employment
Agreement — Page 10
rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. In the event
of any such arbitration, the prevailing party shall be entitled to receive, in addition to any
award or judgment, full costs, including reasonable attorneys’ fees and costs incurred in
connection with such proceeding or arbitration.
(b) Notwithstanding the foregoing, any action or proceeding (1) seeking injunctive relief
pursuant to Section 12 hereof, (2) arising in connection with an arbitration proceeding brought
under clause (i) above, or (3) relating to any matter which is not legally arbitrable for any
reason, shall be instituted and prosecuted in the state courts of the State of California, County
of Los Angeles, or the federal district court in and for the Central District of California located
in Los Angeles, and each party waives the right to change the venue.
[Remainder of page intentionally left blank.]
Employment
Agreement — Page 11
IN WITNESS WHEREOF, the undersigned have executed and delivered, or caused to be executed and
delivered by an authorized representative, this EMPLOYMENT AGREEMENT on the date stated in the
introductory clause.
| “Company” | ||||||
| A-XXXX PRECIOUS METALS, INC. A New York Corporation |
||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: Title: |
XXXX XXXXXX CEO |
|||||
| “Xx. XxXxxx” | ||||||
| /s/ Xxxx XxXxxx | ||||||
| XXXX XxXXXX, individually | ||||||
[Signature Page — LeShay Employment Agreement]
