EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), dated as of
June 1, 2005, is made by and between Avenue Group, Inc., a Delaware corporation
(the "Company"), and Xxxxxx Xxxxxx, an individual ("Employee").
RECITALS
WHEREAS, Employee is experienced in the business of providing financial, capital
markets, strategic planning, public relations, investor relations and management
of general business and corporate financial matters(the "Services");
WHEREAS, The Company desires to avail itself of Employee's experience, skills,
knowledge and abilities and to engage the Employee as an employee of the
Company;
WHEREAS, the Company and the Employee wish to secure the services of the
Employee on an ongoing basis;
WHEREAS, the Employee agrees to accept the employment by the Company pursuant to
the terms and conditions set forth in this Agreement; and
NOW, THEREFORE, in consideration of the terms and conditions hereinafter set
forth, the Company and Employee agree as follows:
1. Definitions. As used in this Agreement, the following capitalized terms
shall have the following meanings, unless otherwise expressly provided or unless
the context otherwise requires:
(a) "Board" means the Board of Directors of the Company.
(b) "Cause" means, as used with respect to the involuntary termination of
Executive: (i) The continued failure or refusal by Employee to
substantially perform his duties pursuant to the terms of this Agreement;
(ii) The engaging by Employee in willful misconduct or inaction
materially injurious to the Company; or (iii) The conviction of
Employee for a felony or of a crime involving moral turpitude;
(c) "Change of Control" means any transaction or occurrence after the date
hereof as the result of which:
(i) any person or group of persons (as defined in Rule 13d-5 promulgated under
the Securities Exchange Act of 1934 (the "Act")), together with its affiliates,
other than current members of the Board of Directors or their affiliates, is or
becomes the beneficial owner (as defined in Rule 13d-3 promulgated under the
Act), directly or indirectly, of securities of the Company (including securities
convertible into or exercisable for securities of the Company) ordinarily having
the right to vote in the election of directors which together represent, after
giving effect to any conversion or exercise, in excess of fifty percent (50%) of
the combined voting power of the Company's outstanding securities ordinarily
having the right to vote in the election of directors; or (ii) Continuing
Directors (as defined below) shall cease for any reason to constitute at least a
majority of the Board of Directors; or
(iii) the Company shall merge or consolidate with any other person or entity
other than a subsidiary, and, upon the consummation of such transaction, holders
of the Common Stock immediately prior to such transaction own less than fifty
percent (50%) of the equity securities of the surviving or consolidated entity;
or
(iv) all or substantially all of the assets of the Company are sold or
transferred to another person or entity in a single transaction or a series of
related transactions.
Notwithstanding the foregoing, a Change of Control shall not include the filing
by or on behalf of, or entering against, the Company or its subsidiaries of (a)
a petition, decree or order of bankruptcy or reorganization, or (c) a petition,
decree or order for the appointment of a trustee, receiver, liquidator,
supervisor, conservator or other officer or agency having similar powers over
the Company or its subsidiaries, including any such petitions, orders or decrees
filed or entered by federal or state regulatory authorities. "
(d) "Continuing Director" means any individual who is a member of the Board of
Directors as of the date hereof.
(e) "Good Reason" means, with respect to the voluntary termination by Employee,
the occurrence, without the Employee's express written consent, of any of the
following: i) Except as provided in Section 2 hereof, the assignment to Employee
by the Company of any duties materially inconsistent with, or the diminution of,
Executive's positions, titles, offices, duties and responsibilities with the
Company, as provided in Section 2 below, or any removal of Employee from, or any
failure to re-elect Employee to, any titles, offices or positions held by
Employee pursuant to said Section 2; (ii) Except in accordance with the terms
hereof, a reduction by the Company in Executive's base salary or any other
compensation provided for herein; and (iii) The failure by the Company to
continue in effect any material benefit or compensation plan to which Employee
is entitled, hereunder, or plans providing Employee with substantially similar
benefits, the taking of any action by the Company which would materially and
adversely affect Executive's participation in, or materially reduce Executive's
benefits under, any such benefit plan or deprive Employee of any material fringe
benefits enjoyed by Employee hereunder, or the failure by the Company to provide
Employee with the number of paid vacation days to which Employee is then
entitled (based on years of service) under the Company's normal vacation
policies and practices in effect on the date hereof or in effect from time to
time hereafter; provided, however, that the occurrence of any of the foregoing
shall not constitute Good Reason to the extent that such occurrence is part of a
change in benefits, compensation, policies or practices that affect either: (i)
substantially all of the employees of the Company or (ii) all other senior
executives of the Company of comparable or lower status to the Executive
(f) "Incapacity" means the absence of the Employee from his employment or the
inability of Employee to perform his essential job duties with reasonable
accommodations on a full-time basis by reason of mental or physical illness,
disability or incapacity for a period of ninety (90) consecutive days.
2. Employment, Services and Duties. The Company hereby employs Employee as Vice
President and Secretary, and such title designation(s) as the Company, acting
through its Board and the Employee may from time to time agree upon. The job
duties of Employee shall be as set out and described on Exhibit One attached
hereto and made a part hereof. Employee shall report to and be supervised by the
Chairman of the Company and shall have such additional duties and
responsibilities as normally associated with the position of Secretary,
including but not limited to keeping the Company's Board minutes and records and
assisting in the preparation of the non-financial portions of the Company's
filings with the Securities and Exchange Commission pursuant to the Act, as well
as such other duties and responsibilities not otherwise described in Exhibit One
as the Board and Employee may mutually agree upon from time to time. Employee
shall perform such services from his home office or such other office as
Employee, at Employee's own expense may otherwise utilize. If the Company shall
establish a permanent functioning office within convenient travel distance to
Employee's home, Employee shall work in such office.
3. Acceptance of Employment.
(a) Notwithstanding the provisions of Section 3(b) hereof, Employee and the
Company agree that initially Employee shall be engaged by the Company on a "part
time status" pursuant to which Employee shall work at least one hundred (100)
hours per month on behalf of the Company. During the term of this Agreement,
Employee shall continue to fulfill the responsibilities of Secretary and such
other duties and responsibilities as Employee and the Board may mutually agree
upon.
(b) During the term of this agreement, the Company expressly acknowledges and
agrees that Employee shall be entitled to accept employment with one or more
other enterprises or act as a consultant for other businesses ("Outside
Activities"); provided that such Outside Activities do not violate Sections 11
and 12 hereof.
4. Compensation.
(a) Subject to the provisions of the Additional Salary outlined in Section 3(b)
above, Employee shall be entitled to a salary at a rate of one hundred and four
thousand dollars ($104,000) (USD) per annum or eight thousand dollars ($8666)
(USD) per month ("Base Salary"), or such greater amount as the Board may
determine from time to time. Employee's salary shall be subject to normal
governmental withholding.
(b) The Base Salary due Employee shall be payable in monthly installments in
arrears or in such other installments as may be agreed upon between the parties.
(c) Stock Options.
In Employee's first year of employment, Employee shall receive an option
to purchase 2,400,000 shares of the Company's common stock at $0.05 per
share. This option shall vest at the rate of 200,000 shares per month
commencing as of June 1, 2005 up until May 1, 2006 and shall be for a term
of five years from the date of the vesting of each block of stock. In
Employee's second year of employment, Employee shall receive an additional
option to purchase 2,400,000 shares of the Company's common stock at $0.10
per share. This option shall vest at the rate of 200,000 shares per month
commencing June 1, 2006 up until May 1, 2007 and shall be for a term of
five years from the date of the vesting of each block of stock. The Board
in its discretion may determine to increase this stock option at any time
during its term.
5. Benefits.
(a) In addition to the compensation provided for in Section 5 of this Agreement,
Employee shall have the right to participate in any profit-sharing, pension,
life, health and accident insurance, or other employee benefits ("Benefit
Plan(s)") presently adopted or which hereafter may be adopted by the Company in
a manner comparable to those offered or available to other employees of the
Company located in the State of New York, Colorado or California who are
similarly situated where such plans or programs are available to all such
similarly situated employees pursuant to their terms. Nothing contained herein,
shall require that the Company establish or continue any Benefit Plan or that
the Board designate the Employee as a participant in any new plan or program
where the Board, in its sole discretion, is entitled to designate participants
or qualifications for any new or additional program. Except as set forth above,
the Company reserves the right to add, terminate and/or amend any existing
plans, policies, programs and/or arrangements during the term of this Agreement
without any obligation to the Employee hereunder.
(b) Employee shall also be entitled to fifteen (15) days annual vacation time,
during which time his average Base Salary for the last three completed months
will be paid in full. Unused vacation days at the end of any pay period(s) may
be carried over to subsequent pay period(s), provided that the cumulative number
of vacation days accruing from and after the date of this Agreement carried over
into any subsequent pay period shall not exceed twenty (20) days. Employee shall
not accrue additional vacation days during any pay period once the total number
of accumulated vacation days equals twenty (20) days. Employee shall be entitled
to carry over up to, but not in excess of, such amount of Excess Vacation Days
from pay period to any subsequent pay period. Notwithstanding the foregoing,
Employee shall not be entitled to, nor shall accrue any new vacation days during
any pay period in which Employee has Excess Vacation Days. In the event Employee
reduces the amount of Excess Vacation Days in any year through the utilization
of more than ten (10) vacation days in such year, Employee shall not be entitled
to the restoration of such Excess Vacation Days through the utilization of less
than ten (10) vacation days in any subsequent year and pay period. Employee
shall under no circumstances be entitled to cash in lieu of vacation days,
except in the event of Employee's termination of employment with the Company.
6. Expenses.
The Company shall reimburse Employee for all reasonable travel, hotel,
entertainment and other expenses incurred by Employee in the discharge of
Employee's duties hereunder, in accordance with Company policy regarding same,
only after receipt from Employee of vouchers, receipts or other reasonable
substantiation of such expenses acceptable to the Company.
7. Term of Employment.
Unless sooner terminated pursuant to the terms of this Agreement, the term of
this Agreement and Employee's employment shall be for a period of two (2) years
(the "Initial Term"), commencing as of the date of this Agreement and
terminating on May 1, 2007; provided, however, the Agreement shall automatically
be extended for additional one (1) year periods (the "Annual Renewals), unless
either party delivers written notice to the other of the termination hereof on
or before one hundred and twenty (120) days prior to the completion of the
Initial Term or any annual extension thereof (the "Term") Employee's employment
with the Company pursuant to this Agreement shall terminate prior to the
completion of the Term upon the occurrence of any of the following events:
(a) The death of Employee;
(b) Employee voluntarily leaves the employ of the Company without Good
Reason;
(c) The Incapacity of Employee;
(d) The Company terminates this Agreement for Cause;
(e) The Company terminates this Agreement for any reason other than as
set forth in Sections 7(a), 7(c)or 7(d) hereof;
(f) Employee terminates this Agreement for Good Reason; or
(g) The appointment of a trustee for the Company for the purpose of
liquidating and winding up the Company pursuant to Chapter 7 of the
Federal Bankruptcy Code.
8. Compensation Upon Termination. In the event this Agreement is
terminated pursuant to Section 7, the Company shall pay to Employee
his then current Base Salary, prorated through the Employee's last
day of employment with the Company (the "Termination Date") and
solely those additional bonuses that had been declared or fully
earned by Employee prior to such termination ("Earned Bonuses"), but
had not yet received Earned Bonuses, and any accrued vacation days
through the Termination Date pursuant to Section 5 (the "Termination
Pay"). Except as set forth below, all employment compensation and
benefits shall cease as of the Termination Date. In addition to the
foregoing:
(a) In the event that such termination arises under Section 7(a),
Employee's estate shall be entitled to receive severance compensation
equal to such amount of Employee's then current Base Salary as would
have been paid over an additional thirty (30) day period;
(b) Employee recognizes that this Agreement and Employee's employment
with the Company may be terminated at any time by the Company prior
to the expiration of the Term (the "Expiration Date") "without cause"
and nothing contained herein shall require that the Company continue
to employ the Employee until the Expiration Date ; notwithstanding
the foregoing, if prior to the Expiration Date of this Agreement or
prior to its termination pursuant to Sections 7(a)- 7(d) hereof, this
Agreement is terminated pursuant to Sections 7(e) or 7(f) above, the
Company shall pay the employee (x) the lesser of his then current
Base Salary through the Expiration Date of the Agreement or eighteen
(18) months of the Base Salary, which amount to be due and payable
within five (5) business days from the Employee's Termination Date.
(the "Severance Salary"); (y) the health, dental, disability and life
insurance benefits that Employee was receiving or participating in
pursuant to Section 5 immediately prior to such termination, as
though such termination had not occurred, through the Expiration Date
(the "Severance Benefits"); and(z) any bonus, profit sharing or other
incentive compensation which would otherwise been due Employee
through the end of the fiscal or calendar year in which the
termination occurred as though such termination has not occurred (the
"Severance Bonus Participation"). If the Company is unable to
continue any Severance Benefits, the Company shall obtain or
reimburse Employee for all costs actually incurred by the Employee to
obtain substantially equivalent benefits. The Severance Benefits
shall be provided to Employee as and when such amounts or benefits
would have been paid to Employee had such termination not occurred
until the first to occur of: (1) the Expiration Date, (2) Employee's
Death or (3) until such time as Employee obtains other employment
which offers any such benefits to Employee. The Severance Salary,
Severance Benefits and Severance Bonus Participation are hereinafter
collectively referred to as the "Severance Compensation".
THE SEVERANCE COMPENSATION , PAYABLE PURSUANT TO SUBSECTION 7(b), SHALL BE PAID
OR MADE AVAILABLE TO EMPLOYEE AS LIQUIDATED DAMAGES FOR ALL CLAIMS EMPLOYEE
WOULD HAVE WITH RESPECT TO: (i) THE TERMINATION OF THIS AGREEMENT OR THE
TERMINATION OF EMPLOYEE'S EMPLOYMENT UPON THE EXPIRATION OF THIS AGREEMENT; (ii)
ANY COMPENSATION OR BENEFITS DUE EMPLOYEE FROM THE COMPANY PURSUANT TO THIS
AGREEMENT AND (iii) THE INJURY TO EMPLOYEE'S REPUTATION AS A RESULT OF ANY
TERMINATION OF THIS AGREEMENT OR TERMINATION OF EMPLOYMENT UPON THE EXPIRATION
OF THIS AGREEMENT. IN CONNECTION THEREWITH, THE PARTIES AGREE THAT IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE ACTUAL AMOUNT OF SUCH DAMAGES AND
CLAIMS DUE EMPLOYEE WITH RESPECT THERETO AND THAT SUCH SEVERANCE COMPENSATION
AND/OR TERMINATION PAY SHALL CONSTITUTE A REALISTIC AND REASONABLE VALUATION OF
THE DAMAGES WITH RESPECT TO EMPLOYEE'S CLAIMS.
EMPLOYEE'S INITIALS
COMPANY'S INITIALS
(c) Except as otherwise provided in Section 8 (a), (b) or 8(c) above, all other
compensation and benefits enjoyed by or due to Employee as part of Employee's
employment with Employer shall cease as of the Termination Date; including but
not limited to any rights to office or parking space, vacation or sick pay, use
of telephones, Xeroxing or facsimile equipment, secretarial assistance, any
unpaid bonus other than Earned Bonuses), all benefits and/or rights pursuant to
Section 5 above and the right to receive grants of any stock options which have
not previously been granted to employee or, except as expressly provided in any
applicable stock option agreement or plan, vesting in any stock options
previously granted to Employee which have not vested as of the Termination Date.
(d) In the event Employee does not receive, on or before the Expiration Date, an
offer for a new employment agreement but nevertheless continues as an employee
of the Company after the Expiration Date, Employee shall be thereafter deemed to
be an "at will employee" who may be terminated by the Company at any time. In
the event Employee's employment with the Company is terminated while Employee is
an "at will employee", Employee shall be entitled to only those severance
benefits, if any, which are in accordance with the Company's then existing
Policies Manual or other written personnel policies. Employee acknowledges and
understands that in such event, Employee will no longer be entitled to the
Severance Compensation set forth herein.
(e) All payments of Severance Compensation and all Change of Control Payments,
Severance Benefits, Severance Salary and Termination Pay shall be paid or
provided subject to the usual withholdings, including state and federal taxes.
9 Termination upon Change of Control; Effect of Partial Termination.
If, prior to the termination of this Agreement, there shall occur any Change of
Control, Employee, in his sole discretion, may elect to terminate this Agreement
within thirty (30) days after such Change of Control by giving written notice of
such election to the Company. In such event, Employee shall be entitled to his
then current Base Salary through the Expiration Date of this Agreement (the
"Change of Control Payment")and to all the options, fully vested, due to
Employee through the Expiration Date of this Agreement.
10. Ownership of Intellectual Property.
(a) Intellectual Property shall be defined as all copyrights, patent rights,
trademark rights, confidential information, and all other intangible proprietary
rights, including all goodwill, claims and causes of action related thereto
which arise from or are embodied in all services performed by or material
created by Employee for the Company in the past or by Employee for the Company
hereafter. Such services and materials may result in or be embodied in
processes, designs, drawings, inventions, discoveries, improvements, technology,
methodology, procedures, printed material, machine readable media, software, and
business systems. The parties agree that Intellectual Property shall not include
routine software modules utilized by Employee in the past in connection with
Employee's services on behalf of the Company the rights to which are owned by
third parties.
(b) Employee acknowledges and agrees that all right, title, and interest in all
pre-existing Intellectual Property which Employee created for or in connection
with Employee's services on behalf of the Company is and shall be owned solely
by the Company and Employee agrees that all right, title, and interest in
Intellectual Property hereafter created by Employee during Employee's employment
with the Company shall be solely owned by the Company. With respect to
copyrights in works created during Employee's employment pursuant to this
Agreement, such works shall be deemed works made for hire.
(c) In addition to the ownership of the Intellectual Property, Employee agrees
that the Company does and shall own all physical and tangible embodiments of the
Intellectual Property.
11. Further Assurances.
Employee agrees to perform all acts, and execute, acknowledge and deliver all
documents and instruments, the Company deems necessary or desirable to secure or
confirm any right of the Company including, but not limited to, assignments.
Should Employee fail to take any such action or execute, acknowledge or deliver
any such document or instrument within five (5) business days (or such shorter
period of time as the Company shall reasonably require) after requested by the
Company to do so, automatically and without any affirmative act by Employee, the
Company shall be appointed, and Employee hereby irrevocably appoint, the Company
as Employee's true and lawful attorney-in-fact to take any such action and to
execute, acknowledge and deliver such documents in Employer name and as Employer
attorney-in-fact (with full powers of substitution and delegation), such
appointment being an irrevocable right coupled with an enforceable interest, and
shall survive Employee's subsequent incapacity. If the Company signs any
documents or instruments as Employee's attorney-in-fact, the Company will
provide Employee with copies of any such documents or instruments as promptly as
practicable but no failure to do so shall constitute a breach of this Agreement.
12. Protection of Confidential Information
(a) Confidential Information shall be defined to include confidential
information, proprietary information, trade secrets, and other business,
technical, and commercial information, including but not limited to financial
information, preliminary concepts, marketing proposals, branding strategies,
creative designs and concepts, technical data, internet designs, software,
know-how, technology, formulae, research, personnel data, product plans,
products, customer technical requirements, services, customers, employee lists,
customer lists, business prospects and projects, operations, markets,
developments, inventions, processes, designs, drawings, engineering, apparatus,
techniques, marketing, forecasts, business strategy, finances, contracts,
documents, memoranda, diaries, notes and observations, whether prepared by
Employee, the Company any of its subsidiaries or others.
(b) All Confidential Information acquired by Employee from Company or any
subsidiary of the Company or created by Employee for the Company or subsidiary
of the Company shall be solely owned by the Company or such subsidiary, as the
case may be.
(c) All Confidential Information created by or acquired by Employee from the
Company during the term of this Agreement shall be solely owned by the Company.
(d) During the Term hereof and after the termination of Employee's employment
with the Company for any reason whatsoever, Employee shall not, without the
prior written consent of the Company in each instance or except only as
otherwise required by compulsory legal process (after prior detailed written
notice thereof to the Company and the assertion of all available defenses and
privileges), disclose, use, reveal, divulge or make known, or cause or permit to
be disclosed, used, revealed, divulged or made known to or used by anyone, any
Confidential Information.
(e) Except in the discharge of Employee's duties in connection with the
preparation of any filing pursuant to the Act or related disclosure, without
limiting the generality of the foregoing, Employee shall not act in any way as a
source for, contribute to, participate in, encourage, confirm, corroborate or
authenticate any news or media report relating to Confidential Information
including, but not limited to, by way of any article or news story.
(f) Employee shall not remove from the Company's premises (except to the extent
such removal is for the purpose of the performance of Employee's duties
hereunder at home or while traveling, or except as otherwise specifically
authorized by the Company) any Confidential Information.
(g) All media in which any Confidential Information is recorded or stored, and
which is at any time within Employee's possession or control, immediately shall
be delivered to the Company upon the termination of Employee's employment
hereunder for any reason, or at any other time, upon request by the Company, and
Employee shall make no copy or other reproduction thereof.
(h) Employee agree that it would be difficult to measure damage to the Company
for any breach by Employee of the promises set forth in this Agreement and that
injury to the Company from any such breach would be impossible to calculate, and
that money damages would be an inadequate remedy for any such breach.
Accordingly, Employee agree that if any provision of this Agreement is breached,
the Company shall be entitled, in addition to all other remedies it may have, to
an injunction or other appropriate orders to restrain any such breach by
Employee without showing or proving any actual damage sustained by the Company.
13. Non-Competition and Non-Solicitation.
Employee expressly agrees that, during the Term of this Agreement, Employee
shall not, directly or indirectly own, manage, operate, join, control or become
employed by, or render any services of any advisory nature or otherwise, or
participate in the ownership, management, operation or control of, any business
which competes with the business of the Company or any of its subsidiaries. As
used in this paragraph, the verb "employ" shall include its variations, for
example, "retain" or "engage".
14. Equitable Remedies. In the event of a breach or threatened breach by
Employee of any of his obligations under Sections 9, 10, 11 and 12
of this Agreement, Employee acknowledges that the Company may not
have an adequate remedy at law and therefore it is mutually agreed
between Employee and the Company that, in addition to any other
remedies at law or in equity which the Company may have, the Company
shall be entitled to seek in a court of law and/or equity a
temporary and/or permanent injunction restraining Employee from any
continuing violation or breach of this Agreement.
15. Arbitration.
(a) Binding Arbitration. With the exception of the Company's right to
enforce the provisions found in Sections 9, 10,11 and 12 of this
Agreement pursuant to Section 11 hereof, any and all disputes
arising out of or relating to this Agreement, including the actions
or failure to act by Employee hereunder, the termination of this
Agreement, any claim for unlawful retaliation, wrongful termination
of employment, violation of public policy or unlawful discrimination
or harassment because of race, color, sex, national origin,
religion, age, physical or mental disability or condition, marital
status, sexual orientation or other legally protected characteristic
shall be resolved by final and binding arbitration before a single
arbitrator. All claims, disputes, or controversies (any or all of
which shall hereinafter be referred to as the "Dispute" or the
"Disputes") arising between the parties hereto with respect to the
making, construction, terms, or interpretation of this Agreement or
the Transactional Documents or any breach thereof, or the rights or
obligations of any party hereto or thereto, the Dispute shall, in
lieu of court action, be submitted to mandatory, binding arbitration
upon written demand of either party in accordance with the
procedures set forth below.
(b) Form of Demand. Notice of the demand for arbitration shall be served
by mail upon the party against whom arbitration is sought. Said
notice shall be in conformity with Section 15(f) of this Agreement.
The demand shall set forth a reasonable description of the issues to
be submitted to arbitration, the amount involved, if any, to the
extent known, if any, and the relief sought (the "Demand").
(c) Type of Arbitration. The arbitration shall be conducted in
accordance with the commercial arbitration rules of the Uniform
Arbitration Act adopted by the State of New York (hereinafter the
"AAA").
(d) Selection of Arbitrator. Within ten (10) days after service of the
Demand, the party seeking arbitration shall file the following items
with the office of the AAA nearest to the location of the
arbitration and shall copy the non-initiating party by certified
mail: (i) the Demand; (ii) three (3) copies of this arbitration
provision; (iii) a detailed statement of the Dispute and, if known
and the remedy or remedies sought; and (iv) the appropriate AAA
administrative fee. The submission shall request that the AAA submit
to the parties a list of at least three available (3) disinterested
arbitrators who have no prior dealings (other than prior service as
an arbitrator) with either of the parties. The parties shall jointly
select one (1) of the proposed arbitrators. If no agreement is
reached as to the selection of the arbitrator, the parties may
request that the AAA recommend at least three (3) additional
arbitrators with the above stated qualifications. If the parties
cannot agree on one (1) arbitrator from among the second group
proposed by the AAA, the AAA shall appoint one (1) of the six (6)
previously designated persons to serve a arbitrator.
(e) Evidence. The arbitrator shall be the sole judge of the
admissibility, relevance and materiality of the evidence offered and
conformity with the legal rules of evidence shall not be necessary.
(f) Location of Hearing. Each Party hereby irrevocably submits to the
jurisdiction of the arbitrator in New York, New York and waives any
defense to said venue.
(g) Arbitrator Compensation; Costs of Arbitration. The fees and expenses
of the arbitrator shall be paid by the Company and arbitrator shall
fix his/her compensation together with the time and manner of
payment.
(h) Limitation On Relief Awardable. The sole forms of relief awardable
by the arbitrators shall be to: issue a declaratory judgment on the
construction and/or interpretation of any clause in the Agreement;
and/or award actual money damages plus, if the arbitrator deems
appropriate, pre-award and post award interest at the prime rate, as
reported in the Wall Street Journal, Western Edition, plus 100 basis
points, from the time when such amounts became due until paid. The
arbitrator shall have no authority or power to grant, and no party
shall seek, any award of punitive or exemplary or like damages.
(i) Decision of the Arbitrator and Entry of Judgment. The arbitrator's
decision shall be in writing, setting forth the reasons and grounds
for the arbitrator's decision. The arbitrator's decision shall be
final and binding upon, and enforceable as to, the parties. Judgment
on the arbitration award may be entered in a court having
jurisdiction over the matter.
(j) Payment of Award; Performance of Obligations. The party against whom
the award is rendered shall pay any monetary award and/or comply
with any other order of the arbitrator within five (5) Business Days
of the entry of judgment on the award, or take an appeal, to the
extent that appeals of binding arbitration are permitted under the
AAA procedures.
(k) CONSENT TO ARBITRATION. BY INITIALING IN THE SPACE BELOW, EMPLOYEE
ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED
IN THE "ARBITRATION" PROVISION OF THIS AGREEMENT DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY THE LAWS OF THE STATE OF NEW YORK AND
EMPLOYEE IS GIVING UP ANY RIGHTS EMPLOYEE MIGHT POSSESS TO HAVE THE
DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE
SPACE BELOW EMPLOYEE IS GIVING UP EMPLOYEE'S JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED
IN THE "ARBITRATION" PROVISION OF THIS AGREEMENT. IF EMPLOYEE REFUSE
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, EMPLOYEE
MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE LAWS OF THE
STATE OF NEW YORK. EMPLOYEE AGREE THAT EMPLOYEE'S AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY. EMPLOYEE HAS READ AND UNDERSTAND
THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE
MATTERS INCLUDED IN THE "ARBITRATION" PROVISION OF THIS AGREEMENT TO
NEUTRAL ARBITRATION.
EMPLOYEE'S INITIALS
COMPANY'S INITIALS
15. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the benefit of the Company
and any successor of the Company. Except as set forth in Section 7(g) above,
this Agreement shall not be terminated by the voluntary or involuntary
dissolution of the Company or by any merger, reorganization or other transaction
in which the Company is not the surviving or resulting corporation or upon any
transfer of all or substantially all of the assets of the Company in the event
of any such merger, or transfer of assets. The provisions of this Agreement
shall be binding upon and shall inure to the benefit of the surviving business
entity or the business entity to which such assets shall be transferred in the
same manner and to the same extent that the Company would be required to perform
it if no such transaction had taken place. Neither this Agreement nor any rights
arising hereunder may be assigned or pledged by Employee.
(b) Except as otherwise provided by law or elsewhere
herein, in the event of an act of force majeure, as hereinafter defined, during
the term hereof which event continues for a period of no less than fifteen (15)
days, the Company shall be entitled to suspend this Agreement for the duration
of such event of force majeure. In such event, during the duration of the event
of force majeure the Company shall be relieved of its obligations to the
Employee pursuant to Sections 4 and 5; except for the continuation of any
health, life or disability insurance coverage. For the purposes hereof, "force
majeure" shall be defined as the occurrence of one or more of the following
events:
(i) any act commonly understood to be of
force majeure which materially and adversely
affects the Company's business and
operations, including but not limited to,
the Company having sustained a material
loss, whether or not insured, by reason of
fire, earthquake, flood, epidemic,
explosion, accident, calamity or other act
of God;
(ii) any strike or labor dispute or court or
government action, order or decree;
(iii) a banking moratorium having been
declared by federal or state authorities;
(iv) an outbreak of major armed conflict,
blockade, embargo, or other international
hostilities or restraints or orders of
civic, civil defense, or military
authorities or other national or
international calamity having occurred;
(v) any act of public enemy, riot or civil
disturbance or threat thereof; or
(vi) a pending or threatened legal or
governmental proceeding or action relating
generally to the Company's business, or a
notification having been received by the
Company of the threat of any such proceeding
or action, which could materially adversely
affect the Company.
(c) Except as expressly provided herein, this Agreement contains the entire
understanding between the parties with respect to the subject matter hereof, and
may not be modified, altered or amended except by an instrument in writing
signed by the parties hereto. This Agreement supersedes all prior agreements of
the parties with respect to the subject matter hereof.
(d) This Agreement shall be construed in accordance with the laws of the State
of New York applicable to agreements wholly made and to be performed entirely
within such state and without regard to the conflict of law principles thereof.
e) Nothing in this Agreement is intended to require or shall be construed as
requiring the Company to do or fail to do any act in violation of applicable
law. The Company's inability pursuant to court order to perform its obligations
under this Agreement shall not constitute a breach of this Agreement. If any
provision of this Agreement is invalid or unenforceable, the remainder of this
Agreement shall nevertheless remain in full force and effect. If any provision
is held invalid or unenforceable with respect to particular circumstances, it
shall, nevertheless, remain in full force and effect in all other circumstances.
(f) Any notice to the Company required or permitted hereunder shall be given in
writing to the Company, either personally by messenger, courier or otherwise,
telex, telecopier or, if by mail, by registered or certified mail, return
receipt requested, postage prepaid, duly addressed to the Secretary of the
Company at its then principal place of business. Any such notice to Employee
shall be given to the Employee in a like manner, and if mailed shall be
addressed to Employee at Employee's home address then shown in the files of the
Company. For the purpose of determining compliance with any time limit herein, a
notice shall be deemed given on the fifth day following the postmarked date, if
mailed, or the date of delivery if delivered personally, by telex or telecopier.
(g) A waiver by either party of any term or condition of this Agreement or any
breach thereof, in any one instance, shall not be deemed or construed to be a
waiver of such term or condition or of any subsequent breach thereof.
(h) The section and subsection headings contained in this Agreement are solely
for convenience and shall not be considered in its interpretation.
(i) This Agreement may be executed in one or more counterparts, each of which
shall constitute an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
COMPANY:
Avenue Group, INC.,
a Delaware corporation
By: /s/
---------------------------
Xxxxxx Xxxxxx
Director
EMPLOYEE:
By: /s/
---------------------------
Xxxxxx Xxxxxx
