EXHIBIT 10.33(B)
XXXXXX OPTION AGREEMENT
NEITHER THIS OPTION NOR THE SHARES OF COMMON STOCK ISSUABLE UPON THE
EXERCISE OF THIS OPTION HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND THEY MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT
WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM
REGISTRATION UNDER THE ACT, BUT ONLY UPON A EMPLOYEE HEREOF FIRST HAVING
OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE ISSUER, OR OTHER COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER, THAT THE PROPOSED DISPOSITION IS EXEMPT
FROM REGISTRATION UNDER THE ACT.
OPTION AGREEMENT
This AGREEMENT (the "Option Agreement") dated this 8th day of March,
2004 ("Grant Date") is issued by Avenue Group, Inc., a Delaware corporation (the
"Issuer"), to Xxxxxx Xxxxxx ("Employee") with respect to the issuer's grant to
Employee of a non-transferable option (the "Option") to acquire up to Four
Million Five Hundred Thousand (4,500,000) shares of the Issuer's common stock
(collectively, the "Option Shares"), pursuant to the terms of this Option
Agreement.
RECITALS
WHEREAS, Employee has entered into an Employment Agreement with the
Issuer of even date herewith (the "Employment Agreement") to serve of the
Issuer's Director of Strategic Planning; and
WHEREAS, the Board of Directors of the issuer believes it to be in the
best interests of the Issuer to reward and create, through the grant of the
Option, an additional incentive for the Employee's continued employment with the
Issuer.
NOW, THEREFORE, in consideration of these premises and the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
Issuer and Employee agree as follows:
AGREEMENT
1. Grant of Option.
The Issuer hereby grants to Employee, effective as of the date
hereof, the Option (the "Grant Date"), upon the terms and subject to the
conditions set forth in this Option Agreement, to purchase the Option Shares, at
a per share exercise price equal to fifteen cents ($0.15) per share (the
"Exercise Price").
2. Administration.
Employee agrees that this Option shall be administered by the
Board of Directors of the Issuer (the "Administrator"). The Administrator shall
have sole authority and discretion to construe and interpret this Option
Agreement and the Option granted and to make all of the determinations necessary
or advisable for administration this Option The interpretation and construction
by the Administrator of any provision of this Option Agreement, shall be final
and binding upon all parties. No member of the Board shall be liable for any
action or determination undertaken or made in good faith with respect to the
Plan or this Agreement.
3. Grant of Option.
The Issuer hereby grants as of the date hereof to Employee the Option,
upon the terms and subject to the conditions set forth in this Option Agreement,
at an exercise price of Fifteen Cents ($.15) per share (the "Exercise Price").
4. Term of Option.
The Option shall terminate and expire, no further Options may be
exercised and all unexercised Options shall automatically expire and be of no
further force or effect at 5:00 p.m., Pacific Standard Time upon the first to
occur of either of the following (the "Option Expiration Date"):
(a) Three (3) years from the Vesting Date solely with respect to each
Monthly Trance (as such terms are defined below); or
(b) one year after the "Termination Date", as such term is defined in
the Employment Agreement, only if Employee's employment with the Issuer
terminates for "cause", as such term is defined in the Employment Agreement;
provided, however, that no further Options may vest after such Termination Date.
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5. Vesting of Option.
(a) Options to purchase Three Hundred and Seventy Five Thousand
(375,000) Option Shares shall vest on each monthly anniversary of this Option
Agreement (the "Monthly Tranche"), commencing on March 8, 2004 and continuing
through February 8, 2005 (each such date with respect to the Option Shares then
vested the "Vesting Date").
(b) Notwithstanding the foregoing, the Employee agrees that no
additional portion of the Option shall to vest after the Termination Date of
Employee's employment with the Issuer if the Employee's employment is terminated
pursuant to Sections 6(b) or 6(d) of the Employment Agreement. In the event the
Termination Date occurs for any reason other than as set forth in Sections 6(b)
or 6(d) of the Employment Agreement, the Option shall continue to vest in
accordance with Sections 3(a) above. In addition, notwithstanding the foregoing,
Employee agrees that no portion of any vested Option may be exercised unless and
until any then-applicable requirements of all state and federal securities laws
shall have been fully complied with to the reasonable satisfaction of the Issuer
and its counsel; provided, however, that the Issuer use its best efforts to
comply with the requirements of all such state and federal securities laws.
6. Exercise of Option.
There is no obligation to exercise the Option, but any Option Shares
which have previously vested may be exercised in whole or in part at any time or
from time to time on or prior to the Option Expiration Date. The Option must be
exercised by delivery to the Issuer of:
(b) written notice of exercise in substantially the form of Exhibit "A"
attached to this Option; and
(a) payment of the Exercise Price of the Option Shares pursuant to
Section 5.
Upon receipt of the foregoing, the Issuer shall promptly issue in the
name of the Employee one or more stock certificates evidencing the Option Shares
issued pursuant to such exercise and deliver such certificate(s) to the Employee
in such denominations, as the Employee shall request.
7. Delivery of Shares; Payment of Exercise Price.
Payment of the Exercise Price shall be made in United States currency
by wire transfer to an account designated by the Issuer or by cash or by
delivery of a certified check, bank draft or postal or express money order
payable to the order of the Issuer.
8. Restrictions on Transfer of Option and Option Shares.
Employee may not offer, sell, transfer, pledge, hypothecate or
assign either by operation of law or otherwise ("Transfer") all or any portion
of the Option or the Option Shares prior to their exercise. In addition, the
Employee may not Transfer all or any portion of the Option Shares except
pursuant to a Registration Statement under the Act which has become effective
and is current under the Act or pursuant to a specific exemption from the
registration requirements of the Act and then with the written opinion of legal
counsel acceptable to the Issuer to such effect. Any purported transfer of all
or any portion of the Option or the Option Shares in violation of this Section
shall be null and void.
Unless the Issuer has on file with the Securities and Exchange
Commission (the "SEC") an effective registration statement covering the reoffer
or resale of the Option Shares issued to the Employee, each certificate for
Option Shares issued upon the exercise of the Option, shall be stamped or
otherwise imprinted with a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THEY MAY NOT BE OFFERED, SOLD,
PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (i) PURSUANT TO A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND
IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (ii) PURSUANT TO A SPECIFIC
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, BUT ONLY UPON A EMPLOYEE
HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE ISSUER, OR
OTHER COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER, THAT THE PROPOSED DISPOSITION
IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT.
Employee is aware that pursuant to Rule 144 promulgated under
the Securities Act, there currently exists an exemption from the registration
requirements of the Securities Act, which may enable Employee to sell all or a
portion of any Option Shares issued to Employee pursuant to the terms of this
Option Agreement one year after their issuance to the Employee upon the exercise
of the Option subject to the qualifications, restrictions and limitations set
forth in such Rule 144.
9. Piggy-Back Registration Rights
(a) Whenever the Issuer proposes to register any of its Common
Stock under the Securities Act for a public offering for cash and/or qualify any
of its Common Stock for public distribution under any state securities laws,
whether as a primary or secondary offering (or pursuant to the registration
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rights granted to holders of other securities of the Company), other than
registration relating to employee benefit plans, including but not limited to
any Form S-8 Registration Statement (the "Registration Statement"), the Issuer
will:
(i) Promptly give to Employee written notice
of the intent to so register its securities; and
(ii) Include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, any Option Shares previously issued to the
Employee as specified in a written request or requests from the Employee made
within 15 days after receipt of such written notice from the Company, except as
set forth in paragraph 2 below.
(b) Underwriting. If the registration of which the Issuer
gives notice for a registered public offering involving an underwriting, the
Issuer shall so advise the Purchaser as a part of the written notice given
pursuant to subparagraph 1 above. In such event the right of the Purchaser to
registration shall be conditioned upon Employee's participation in such
underwriting and the inclusion of Employee's Shares in the underwriting to the
extent provided herein. In the event the Employee elects to distribute its
securities through such underwriting, the Employee shall (together with the
Issuer and the other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Issuer or by
holders exercising demand registration rights, as the case may be. Nevertheless,
if the underwriter determines that marketing factors require a limitation of the
number of shares to be included in the underwriting, the underwriter may exclude
some of the Option Shares in accordance with the following provisions: after
inclusion of all shares to be offered by the Issuer, Option Shares of the
Employee shall be included on a pro rata basis with the shares of other holders
of registration rights.
If the Employee disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom at any time prior to filing of
the registration statement by written notice to the Issuer and the underwriter.
Any Option Shares excluded or withdrawn from such underwriting shall not be
included in such registration.
(c) Registration Statement Delaying or Suspension Events.
(i) Notwithstanding anything to the contrary
contained herein, the Issuer shall be entitled to (y) postpone the filing of any
Registration Statement that includes the Option Shares ("Registration
Statement") or (ii) withdraw the Registration Statement after its filing but
before it has been declared effective, if, in either case, the Issuer in its
good faith discretion determines that such registration would interfere in any
material respect with any proposal or plan by the Issuer to engage in any
financing or any material acquisition or disposition by the Issuer or any
subsidiary thereof of the capital stock or assets (other than in the ordinary
course of business), any tender offer or any offering, merger, consolidation,
corporate reorganization or restructuring or other similar transaction material
to the Issuer and its subsidiaries as a whole ("Material Event"). In the event
the filing of the Registration Statement is postponed or withdrawn, the Issuer
shall file or re-file the Registration Statement within twenty (20) business
days after the Issuer, in its good faith discretion, determines that the
Material Event has been completed or terminated.
(ii) The Employee further acknowledges and agrees
that after the effective date of the Registration Statement the Issuer may, in
its good faith discretion, determine that there is a Material Event and that the
use of the Prospectus should be suspended until such time as an amendment or
supplement to the Registration Statement or the prospectus included therein
("Prospectus") has been filed by the Issuer and any such amendment to the
Registration Statement is declared effective by the SEC, or until such time as
the Issuer has filed an appropriate report with the SEC pursuant to the
Securities Exchange Act of 1934, as amended, to report the Material Event. The
Employee hereby covenants that it will not sell any Option Shares pursuant to
the Prospectus during the period commencing at the time at which the Issuer
gives the Employee written notice of the suspension of the use or the Prospectus
and ending at the time the Issuer gives the Employee written notice that the
Employee may thereafter effect sales pursuant to the Prospectus.
(iii) The Issuer shall disclose to the Employee the
nature of any Material Event or the business purpose for which it has delayed or
withdrawn the Registration Statement or suspended the use of the Prospectus,
provided the Employee agrees to keep any information so disclosed confidential
and not complete any trades of Common Stock until the Issuer informs the
Employee the information is considered public information or is no longer
material.
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(d) Registration Expenses. All expenses incident to the
Issuer's performance of or compliance with this Agreement including, without
limitation (i) all registration and filing fees, all fees and expenses
associated with filings required to be made with the NASD, as may be required by
rules and regulations of the NASD (other than fees required in excess of fees
which would otherwise pertain in the event that the Employee is a member of the
NASD), fees and expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel in connection with blue sky
qualifications for the Option Shares), if any, rating agency fees, printing
expenses (including expenses of printing certificates for the Option Shares in a
form eligible for deposit with the Depository Trust Issuer and of printing
prospectuses, messenger and delivery expenses, (ii) internal expenses
(including, without limitation, all salaries and expenses of their officers and
employees performing legal or accounting duties), and (iii) fees and expenses of
counsel for the Issuer and its independent certified public accountants (all
such expenses being herein called "Registration Expenses") will be borne by the
Issuer, all other expenses shall be borne by the Employee, including, without
limitation, any underwriting discounts or commissions attributable to the sale
of the Option Shares or any direct out-of-pocket expenses of the Employee,
including fees and expenses of counsel or accountants for the Employee. In the
event that following effectiveness of the Registration Statement, it becomes
necessary for the Issuer to prepare and file a supplemental prospectus or
amended prospectus in order to maintain the effectiveness of such Registration
Statement, the Issuer shall pay all printing costs associated with the printing
of such supplemental or amended Prospectus to be distributed in connection with
sales of their securities pursuant thereto.
10. No Rights as Stock Holder.
Employee shall have no rights as a stockholder of the Issuer with
respect to the Option Option Shares until the date the exercise notice is
received by the Issuer together with payment (the "Exercise Date"). No
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to the Exercise Date.
11. Taxes.
Employee agrees to be responsible for all Canadian or US federal,
provincial, federal, state or local taxes arising out of or relating to Issuer's
grant or Employee's exercise of the Option, including but not limited to any
employer or employee withholding taxes which may become due with respect thereto
("Taxes") and agrees to indemnify the Issuer against any claims, losses,
damages, charges or judgments or any kind whatsoever relating to such Taxes.
Issuer shall be entitled to deduct from Employee's salary withholding taxes, if
any, due upon the exercise of all or any portion of the Option at the applicable
rate.
12. Adjustment.
(a) If outstanding shares of the Common Stock of the Issuer shall be
subdivided into a greater number of shares, or a dividend in Common Stock or
other securities of the Issuer convertible into or exchangeable for Common Stock
(in which latter event the number of shares of Common Stock issuable upon the
conversion or exchange of such securities shall be deemed to have been
distributed), shall be paid or distributed in respect to the Common Stock of the
Issuer, the number of Option Shares for which this Option may be exercised
immediately prior to such subdivision or at the record date of such dividend
shall, simultaneously with the effectiveness of such subdivision or immediately
after the record date of such dividend or other distribution, be proportionately
increased, and conversely, if outstanding shares of the Common Stock of the
Issuer shall be combined into a smaller number of shares, the number of Option
Shares for which this Option may be exercised prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
decreased. Any adjustment to the Option Shares under this Section 11(a) shall
become effective at the close of business on the date the subdivision or
combination referred to herein becomes effective.
(b) In the event of any recapitalization, consolidation, merger or
reorganization ("Reorganization"), where the Issuer shall not be the surviving
entity the Employee of the Options shall at the sole discretion of the Issuer be
entitled to either (1) receive, and provision shall be made therefore in any
agreement relating to any such Reorganization, upon exercise of the Option the
kind and number of shares of Common Stock or other securities or property
(including cash) of the Issuer, which the Employee would have received in
connection with the Reorganization as the Employee of the number of shares of
Common Stock into which the Option could have been exercised in full immediately
prior to such Reorganization; and in any such case appropriate adjustment shall
be made in the application of the provisions herein set forth with respect to
the rights and interests thereafter of the Employees, to the end that the
provisions set forth herein (including the specified changes and other
adjustments to the number of Option Shares) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares, to such other securities
or property thereafter receivable upon issuance of the Option Shares or (b) no
less than thirty (30) days prior notice of such Reorganization, during which
time the Employee may elect to exercise all Options which have then vested. In
such event all unexercised Options shall expire upon the consummation of the
Reorganization. The provisions of this Section 12(b) shall similarly apply to
successive Reorganizations. For purposes of this Section 12, the term
"Reorganization" shall include the acquisition of the Issuer by another entity
by means of a merger, consolidation or other reorganization.
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(c) In addition to the adjustments to the number of Option Shares or
other property receivable upon exercise of the Options as provided in Sections
12(a) and (b) above, the Exercise Price per Option Share shall be appropriately
adjusted so that the aggregate exercise price shall remain constant.
13. Certificate of Adjustment.
Within thirty (30) days following any event requiring an adjustment or
readjustment of the number of shares of Common Stock or other securities
issuable upon exercise of the Option, the Issuer shall cause its Chief Financial
Officer to compute such adjustment or readjustment in accordance with this
Option and to prepare a certificate showing such adjustment or readjustment, and
shall mail such certificate, by first-class mail, postage prepaid, to the
Employee at the address set forth in Section 16(b). The certificate shall set
forth such adjustment or readjustment, showing in detail the facts upon which
such adjustment or readjustment is based.
14. Modification.
The Board or a committee thereof may modify, extend or renew the Option
or accept the surrender of, and authorize the grant of a new option in
substitution for the Option (to the extent not previously exercised). No
modification of the Option which adversely affects the rights of the Employee
shall be made without the written consent of Employee.
15. Employee Representations and Warranties.
(a) Employee represents and warrants that the Option and Option Shares
are being acquired for Employee's own account, for investment purposes only, and
not for the account of any other person, and not with a view to reoffer,
distribute, assign, or resell to others or to fractionalize in whole or in part
and that the acquisition of the shares is intended to be exempt from
registration under the Act by virtue of the fact that the Option and the Option
Shares issuable thereunder are being offered and sold in Canada to the Employee
who is a non-citizen and resident of the United States and pursuant to Section
4(2) of the Act promulgated thereunder. In furtherance thereof, Employee
represents, warrants and agrees as follows: (i) no other person has or will have
a direct or indirect beneficial interest in such Option or the Option Shares and
the Employee will not sell, hypothecate, or otherwise transfer the Option or the
Option except in accordance with the Act and applicable US or Canadian state or
provincial laws or unless, in the opinion of counsel for Issuer , an exemption
from the registration requirements of the Act and such laws is available. The
Issuer is under no obligation to register the Option or the Option Shares or to
assist Employee in complying with any exemption from registration.
(b) Employee represents and warrants that it is an "accredited
investor" as such term is defined in Section 501(a) or otherwise of Regulation D
of the Act.
(c) In connection with the grant of the Option and the issuance of the
Option Shares upon the exercise thereof and concurrently with the execution of
this Agreement, Employee has executed a Subscription Agreement and Investor's
Questionnaire substantially in the form attached hereto as Exhibit "B"
(d) The grant of the Option and the issuance of the Option Shares upon
the exercise thereof by the Issuer to Employee under this Agreement will be in
full compliance with all applicable Canadian securities laws; and the
performance of the Services by the Employee shall not violate any provision of
law (including, without limitation U.S. and Canadian securities laws). Employee
agrees to indemnify and hold harmless the Issuer from any and all losses,
liabilities, costs, damages or expenses (including reasonable attorneys' fees)
which the Issuer may suffer or incur arising out of or due to a breach or any
covenant, representation or warranty of the Employee contained in this
Agreement.
16. General Provisions.
(a) Further Assurances. Employee shall promptly take all actions and
execute all documents requested by the Issuer, which the Issuer deems to be
reasonably necessary to effectuate the terms and intent of this Option.
(b) Notices. All notices, requests, demands and other communications
under this Option shall be in writing and shall be given to the parties hereto
as follows:
If to the Issuer, to:
Avenue Group, Inc.
00000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
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If to Employee, to:
Xxxxxx Xxxxxx
The Regional Group Companies, Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
or at such other address or addresses as may have been furnished by
either party in writing to the other party hereto. Any such notice, request,
demand or other communication shall be effective (i) if given by mail, two days
after such communication is deposited in the mail by first-class certified mail,
return receipt requested, postage prepaid, addressed as aforesaid, or (ii) if
given by any other means, when delivered at the address specified in this
subparagraph (b).
(c) Governing Law, Resolution of Disputes.
(i) This Option Agreement shall be governed by
and construed in accordance with the Laws of the State of California applicable
to contracts made in, and to be performed in, that state.
(ii) The parties hereto agree that all disputes
arising out of or relating to this Option Agreement, including but not limited
to the interpretation or enforcement of any the terms hereof (the "Dispute")
shall be adjudicated in accordance with the terms of Section 14 of the
Employment Agreement.
BY INITIALING IN THE SPACE BELOW, THE ISSUER AND THE EMPLOYEE ARE
AGREEING TO HAVE ANY DISPUTE ARISING OUT THIS OPTION AGREEMENT DECIDED BY
NEUTRAL ARBITRATION AS PROVIDED BY THE LAWS OF THE STATE OF CALIFORNIA PURSUANT
TO THE TERMS OF THE "ARBITRATION OF DISPUTES" PROVISION OF THE EMPLOYMENT
AGREEMENT AND THE ISSUER AND THE EMPOYEE ARE GIVING UP ANY RIGHTS THEY MIGHT
POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN
THE SPACE BELOW THE ISSUER AND THE EMPLOYEE ARE GIVING UP THEIR RESPECTIVE
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION OF THE EMPLOYMENT AGREEMENT.
IF EITHER PARTY REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, SUCH PARTY MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE
LAWS OF THE STATE OF CALIFORNIA. THE EMPLOYEE AGREES THAT EMPLOYEE'S AGREEMENT
TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION
OF THE EMPLOYMENT AGREEMENT TO NEUTRAL ARBITRATION.
EMPLOYEE'S INITIALS ______
ISSUER'S INITIALS ______
(d) Amendment; Waiver. This Option Agreement shall be binding upon and
inure to the benefit of the Employee and the Issuer and their respective
successors, heirs and personal representatives. No provision of this Option
Agreement may be amended or waived unless in writing signed by the Employee and
the Issuer. Waiver of any one provision of this Option Agreement shall not be
deemed to be a waiver of any other provision.
(e) Time is of the Essence. All times and dates in this Option
Agreement and each and every provision hereof in which time is an element are of
the essence; provided, however, that if the time period for exercising any
right, option or election provided in this Option Agreement or the time period
for the performance of any act required under this Option Agreement falls on a
Saturday, Sunday or legal or bank holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
(f) Counterparts. This Option Agreement may be executed in two (2) or
more counterparts, each of which shall be considered an original and all of
which shall be considered one and the same agreement and shall become effective
when two (2) or more counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all parties need not
sign the same counterpart.
(g) Severability. If any term or other provision of this Option
Agreement is invalid, illegal or unenforceable, all other provisions of this
Option Agreement shall remain in full force and effect so long as the economic
or legal substance of the Agreement is not affected in any manner materially
adverse to any party. In the event that the enforceability of any
non-competition or similar covenants contained in this Option Agreement is
called into question as the result of time, geographical or other applicable
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limitations specified in such covenants, such time, geographical or other
applicable limitations shall be deemed modified to the minimum extent necessary
to render the applicable provisions of such covenants enforceable.
(h) Construction; Interpretation. The headings contained in this Option
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Option Agreement. Article, Section, Schedule,
Exhibit, recital and party references are to this Option Agreement unless
otherwise stated. No party, nor the counsel of such party, shall be deemed the
drafter of this Option Agreement for purposes of construing the provisions of
this Option Agreement, and all provisions of this Option Agreement shall be
construed in accordance with the fair meaning of such provisions, and not
strictly for or against any party.
(i) Entire Agreement; Amendments and Waivers. This Option Agreement and
Section 14 of the Employment Agreement, together with all Schedules and Exhibits
hereto, constitutes the entire agreement among the parties pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties. No
supplement, modification or waiver of this Option Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver of any of
the provisions of this Option Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.
IN WITNESS WHEREOF, the Issuer has caused this Option Agreement to be
executed as of the date first above written.
AVENUE GROUP, INC.
/s/ Xxxxxxxx Xxxxxx
-----------------------------
Xxxxxxxx Xxxxxx
Its: Executive Vice President
AGREED TO AND ACCEPTED THIS
8th DAY OF MARCH, 2004.
/s/ Xxxxxx Xxxxxx
-----------------------------
Xxxxxx Xxxxxx
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EXHIBIT "A"
NOTICE OF EXERCISE
(To be signed only upon exercise of the Option)
To: Avenue Group, Inc.
The undersigned hereby irrevocably elects to exercise at fifteen cents
($0.15) per share the purchase right represented by the Option purchased by the
undersigned pursuant to that Option Agreement dated March __, 2004 and to
purchase thereunder _______ shares (the "Option Shares") of Common Stock of
Avenue Group, Inc., a Delaware corporation (the "Issuer") for the aggregate sum
of $___________. In connection therewith enclosed is a check payable to the
Issuer in the sum of $___________ reflecting the full exercise price for the
Option Shares.
By:
