EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 21st day of
March, 2005 (the "Commencement Date"), and is by and between ▇.▇. ▇▇▇▇▇▇ GROUP
INC., a Delaware corporation with an office at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ (hereinafter "Company"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇ with an address at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (hereinafter the "Executive").
W I T N E S S E T H :
WHEREAS, the Company wishes to retain the services of Executive to serve
as Chief Executive Officer of the Company and its wholly owned subsidiary, ▇.▇.
▇▇▇▇▇▇ Direct, Inc. and in such other capacities as the Company and Executive
shall mutually agree in accordance with the following terms, conditions and
provisions; and
WHEREAS, Executive wishes to perform such services for and on behalf of
Company, in accordance with the terms, conditions and provisions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained the parties hereto intending to be legally bound hereby agree
as follows:
1. EMPLOYMENT. Company hereby employs Executive and Executive accepts such
employment and shall perform his duties and the responsibilities provided for
herein in accordance with the terms and conditions of this Agreement.
2. EMPLOYMENT STATUS. Executive shall at all times be Company's employee
subject to the terms and conditions of this Agreement.
3. TERM. Unless earlier terminated pursuant to terms and provisions of
this Agreement, this Agreement shall have a term (the "Term") of two (2) years
from the Commencement Date. The Term may be extended for additional one year
periods, at the mutual discretion of the parties, on terms to be negotiated.
4. POSITIONS. During Executive's employment hereunder, Executive shall
serve as Chief Executive Officer of the Company and its wholly owned subsidiary,
▇.▇. ▇▇▇▇▇▇ Direct, Inc. and shall work primarily for the Company. In such
position, Executive shall have the customary powers, responsibilities and
authorities of such position in corporations of the size, type and nature of
Company. Executive shall perform such duties and exercise such powers
commensurate with his positions and responsibilities as shall be determined from
time to time by the Board of Directors of Company (the "Board"). Neither
Executive's title nor any of his functions shall be changed, diminished or
adversely affected during the Term without written direction from the Board.
Executive shall be provided with an office, staff and other working facilities
at the executive offices of Company consistent with his positions and as
required for the performance of his duties.
At such time, if any, that the Company secures Directors and
Officers Insurance, and for the balance of the Term, subject to earlier removal,
resignation or replacement, Executive shall also serve as a Director of the
Company.
5. LOCATION. During Executive's employment hereunder, Executive shall be
based at the Company's offices in New York, New York.
6. COMPENSATION. For the performance of all of Executive's services to be
rendered pursuant to the terms of this Agreement, Company will pay and Executive
will accept the following compensation:
6.1 Base Salary. During the Term, Company shall pay Executive a base
annual salary of $250,000 (the "Base Salary") payable in equal semi-monthly
installments. The Company shall deduct and withhold from Executive's
compensation all necessary or required taxes, including but not limited to
Executive's statutory income tax withholding and employment insurance
contributions, and any other applicable amounts required by law or any taxing
authority. 6.2 Stock. As soon as practicable following execution of this
Agreement, the Company will issue to Executive 5,000,000 shares of its
restricted common stock (the "Compensation Shares").
6.3 Warrants. The Company hereby grants Executive common stock
purchase warrants (the "Warrants") to acquire an aggregate of 7,500,000 common
shares of Company stock, the vesting of which is subject to the Company meeting
certain net profit levels. The terms of such Warrants are as follows:
(i) 2,000,000 Warrants, each to acquire one share of the Company's
common stock at a price of $.05 per share at any time during a period of 10
years from issuance. These Warrants are only exercisable in the event that
Company's cumulative net profit during the Term, as such may be extended, as
calculated on a quarterly basis, commencing with the quarter starting April 1,
2005 (net of amounts, if any, distributed from the Company's Bonus Pool) equals
or exceeds $1,500,000;
(ii) an additional 2,000,000 Warrants, each to acquire one share of
the Company's common stock at a price of $.20 per share at any time during a
period of 10 years from issuance. These Warrants are only exercisable in the
event that Company's cumulative net profit during the Term, as such may be
extended, as calculated on a quarterly basis, commencing with the quarter
starting April 1, 2005 (net of amounts, if any, distributed from the Company's
Bonus Pool) equals or exceeds $4,500,000;
(iii) an additional 2,000,000 Warrants, each to acquire one share of
the Company's common stock at a price of $.40 per share at any time during a
period of 10 years from issuance. These Warrants are only exercisable in the
event that Company's cumulative net profit during the Term, as such may be
extended, as calculated on a quarterly basis, commencing with the quarter
starting April 1, 2005 (net of amounts, if any, distributed from the Company's
Bonus Pool) equals or exceeds $7,500,000;
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(iv) an additional 1,500,000 Warrants, each to acquire one share of
the Company's common stock at a price of $.40 per share at any time during a
period of 10 years from issuance. These Warrants are only exercisable in the
event that Company's cumulative net profit during the Term, as such may be
extended, as calculated on a quarterly basis, commencing with the quarter
starting April 1, 2005 (net of amounts, if any, distributed from the Company's
Bonus Pool) equals or exceeds $10,500,000; and
Subject to earlier forfeiture, as provided in this Agreement, in the event
the cumulative net profit target of $10,500,000 set forth in (v) above is not
achieved on or before March 31, 2009, all non-vested Warrants will be forfeited.
If the Company at any time while any Warrants are outstanding shall (i)
pay a stock dividend or otherwise make a distribution of shares of its common
stock payable in shares of its common stock, (ii) subdivide or reclassify
outstanding shares of common stock into a larger number of shares, or (iii)
combine outstanding shares of common stock into a smaller number of shares,
there shall be a corresponding adjustment in the Warrant exercise price and the
number of Warrants issuable upon exercise thereof.
6.4. Bonus Pool Participation. During the Term, Executive will be
eligible to participate in the Company's bonus pool for Company employees (the
"Bonus Pool"). The Bonus Pool, which is not presently in existence, will be
funded with up to 25% of the Company's annual net profit, if any, for the twelve
month periods commencing April 1, 2005. Funding of the Bonus Pool and payments
from the Bonus Pool to eligible participants will be made at the sole discretion
of the Board. Eligible participants that are members of the Board will abstain
from voting on their own participation in the Bonus Pool. A maximum of
$1,000,000 of the first $2,000,000 paid from the Bonus Pool for a given year may
be paid to Executive.
7. EXECUTIVE BENEFITS.
7.1 Executive shall be entitled to receive 4 weeks paid vacation per
year.
1.1 Reasonable travel and other business expenses actually incurred
by Executive in the performance of his duties hereunder shall be reimbursed by
Company in accordance with Company policies as in effect from time to time.
7.3 Executive shall be eligible to participate in all health
insurance and other Company benefit plans maintained by the Company for the
benefit of its employees.
8. TERMINATION.
8.1 Termination by Company Without Cause. Subject to Section 8.6
hereof, the Company shall have the right to terminate Executive's employment
hereunder without cause by giving Executive written notice to that effect. Any
such termination of employment shall be effective on the date specified in such
notice.
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8.2 Termination by Company for Cause. Subject to Section 8.6 hereof,
the Company shall have the right to terminate this Agreement and Executive's
employment hereunder "for cause" by giving Executive written notice to that
effect. Any such termination of employment shall be effective on the date
specified in such notice. For the purpose of this Agreement, "for cause" shall
mean (i) commission of a willful act of dishonesty in the course of Executive's
duties hereunder, (ii) conviction by a court of competent jurisdiction of a
criminal offense or a crime constituting a felony or conviction in respect of
any act involving fraud, dishonesty or moral turpitude resulting in Company's
detriment or reflecting upon Company's integrity (other than traffic infractions
or similar minor offenses), (iii) a material breach by Executive of the terms of
this Agreement and failure to cure such breach within 30 days after receipt of
written notice from Company specifying the nature of such breach or to pay
compensation to Company deemed reasonable by Company if the breach cannot be
cured, or (iv) the discovery by the Company in the course of a background check
on the Executive to be completed by the Company within 60 days of the date
hereof that Executive has previously been convicted of a felony, a criminal
offense involving fraud, dishonesty, or moral turpitude or has engaged in other
activities which in the Company's reasonable judgment brings into question
Executive's ability to properly perform the duties and responsibilities being
undertaken by him hereunder or which could reasonably be deemed to be materially
damaging or detrimental to the Company.
8.3 Death, Incapacitation or Disability.
(a) Subject to Section 8.6 hereof, if Executive dies during
his employment hereunder, this Agreement shall terminate upon the date of
Executive's death.
(b) Subject to Section 8.6 hereof, in the event Executive
suffers Total and Permanent Disability, Company may terminate Executive's
employment. "Total and Permanent Disability" means any condition affecting
Executive that prevents the performance of the essential job functions and which
is expected to be of a long, continued and indefinite duration which has caused
Executive's absence from service, after providing to Executive reasonable
accommodation to perform the requirements of the job if required by law, for not
less than 20 consecutive days or for such shorter periods aggregating 30 days
during any 6 month period. In such instance, a determination of the existence of
Executive's disability and of the duration of the disability may be made by
written agreement between Company and Executive, or Executive's legally
appointed guardian if Executive then is incompetent. If the parties do not
agree, such determination shall be made, and certified in writing, by a licensed
physician and not an employee of Company, and such physician's determination,
after the proper medical examination, shall be binding and conclusive upon the
parties to this Agreement. If Executive is found to be totally disabled,
Executive shall be deemed to remain disabled until found otherwise by the
examining physician.
8.4 Termination by Executive for Good Reason.
(a) Subject to Section 8.6 hereof, Executive shall have the
right to terminate this Agreement and his employment hereunder for "good reason"
if (A) Executive shall have given Company prior written notice of the reason
therefor, (B) such notice shall have been given to Company within fifteen (15)
days after Executive is notified or otherwise first learns of the event
constituting "good reason," and (C) a period of fifteen (15) days following
receipt by Company of such notice shall have lapsed and the matters which
constitute or give rise to such "good reason" shall not have been cured or
eliminated by Company; provided, however, that if such matters are of a nature
that same cannot be cured or eliminated within such fifteen (15) day period,
such period shall be extended up to forty five (45) days, provided that Company
shall take and diligently pursue during such period such action necessary to
cure or eliminate such matters. In the event Company shall not take such action
within such period, Executive may send another notice to Company electing to
terminate his employment hereunder and, in such event, Executive's employment
hereunder shall terminate and the effective date of such termination shall be
the third business day after Company shall have received such notice.
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(b) For the purpose of this Agreement, "good reason" shall
mean the occurrence of any of the following without Executive `s prior written
consent:
(A) Requiring Executive to engage in (x) an illegal act
or (y) an act which is inconsistent with prior practices of Company and
which could reasonably be deemed to be materially damaging or detrimental
to Executive;
(B) A default by Company in the payment of any material
sum or the provision of any material benefit due to Executive pursuant to
this Agreement;
(C) The failure of Company to obtain the assumption of
this Agreement by any successor to substantially all of the assets or
business of Company; or
(D) Any material breach by Company of any provision of
this Agreement which is not corrected by Company or, if the breach cannot
be corrected, as to which Company fails to pay to Executive reasonable
compensation for such breach, within 60 days following receipt by Company
of written notice from Executive specifying the nature of such breach.
8.5 Termination by Executive Without Good Reason. Subject to Section
8.6 hereof, Executive shall have the right to terminate this Agreement and his
employment hereunder without good reason by giving Company 60 days prior written
notice to that effect. The termination of employment shall be effective on the
date specified in such notice, or earlier, at the determination of Company, in
which event such termination shall remain classified as a termination by
Executive without good reason.
8.6 Consideration.
(a) If Company terminates this Agreement "without cause" under
Section 8.1 or if Executive terminates this Agreement for "good reason" under
Section 8.4, then Executive shall be entitled to receive, and Company shall pay
to Executive:
(i) 100% of the total Base Salary remaining for the Term
without reduction for present valuation not later than the next regularly
scheduled payment date in accordance with Section 6.1;
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(ii) any business expenses to be reimbursed but not
reimbursed under Section 7 not later than the next regularly scheduled payment
date in accordance with Section 7;
(b) If Company terminates this Agreement "with cause" under
Section 8.2, or if Executive terminates this Agreement for other than "good
reason" under Section 8.5, or if this Agreement is terminated as a result of the
death of Executive under Section 8.3, then Executive shall be entitled to
receive, and Company shall pay to Executive, or, in the case of death,
Executive's administrator:
(i) all of the accrued but unpaid Base Salary through
the date of termination or death not later than the next regularly scheduled
payment date in accordance with Section 6.1;
(ii) any business expenses to be reimbursed but not
reimbursed under Section 6 not later than the next regularly scheduled payment
date in accordance with Section 6;
(c) If at any time during the initial year of the Term, the
Company terminates this Agreement "with cause" under Section 8.2 or if Executive
terminates this Agreement for other than "good reason" under Section 8.5
Executive shall promptly return the Compensation Shares to the Company for
cancellation.
(d) If this Agreement is terminated as a result of the
disability of Executive under Section 8.3, Executive shall be entitled to
receive, and Company shall pay to Executive:
(iii) the accrued but unpaid Base Salary through the
date of termination not later than the next regularly scheduled payment date in
accordance with Section 6.1;
(iv) any business expenses to be reimbursed but not
reimbursed under Section 7 not later than the next regularly scheduled payment
date in accordance with Section 7;
(e) If the Company terminates this Agreement "without cause"
under Section 8.1; if Executive terminates this Agreement for "good reason"
under Section 8.4; or if this Agreement is terminated as a result of the death
or disability of Executive under Section 8.3, the Warrants shall continue to be
given the opportunity to vest for the remainder of the then existing Term. At
the end of such existing Term all non-vested Warrants shall be cancelled.
(f) If the Company terminates this Agreement "for cause" under
Section 8.2; or if Executive terminates this Agreement "without good reason"
under Section 8.5, all Warrants received by Executive under Section 6.2 shall
become immediately void and of no further effect.
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9. INTELLECTUAL PROPERTY. During the term of this Agreement, Executive
shall disclose immediately to Company all ideas and inventions that he makes,
conceives, discovers or develops during the course of employment with Company,
including but not limited to any inventions, modifications, discoveries,
developments, improvements, trademarks, computer programs, processes, products
or procedures (collectively "Work Product") that: (i) relates to the business of
Company; or (ii) results from tasks assigned to Executive by Company; or (iii)
results from the use of the premises or property (whether tangible or
intangible) owned, leased or contracted for or by Company. Executive agrees that
any Work Product shall be the sole and exclusive property of Company without the
payment of any royalty or other consideration except for the compensation paid
to Executive hereunder. Executive agrees that during the term of this Agreement
and thereafter, upon the request of Company and at its expense, she shall
execute and deliver any and all applications, assignments and other instruments
which Company shall deem necessary or advisable to transfer to and vest in
Company Executive's entire right, title and interest in and to all such ideas,
inventions, trademarks or other developments and to apply for and to obtain
patents or copyrights for any such patentable or copyrightable ideas,
inventions, trademarks and other developments.
10. NON-DISCLOSURE OF INFORMATION.
10.1 Executive acknowledges that by virtue of his position he will
be privy to Company's confidential information and trade secrets, as they may
exist from time to time, and that such confidential information and trade
secrets may constitute valuable, special, and unique assets of Company
(hereinafter collectively "Confidential Information"). Accordingly, Executive
shall not, during the Term and for a period of five (5) years thereafter,
intentionally disclose all or any part of the Confidential Information to any
person, firm, corporation, association or any other entity for any reason or
purpose whatsoever, nor shall Executive and any other person by, through or with
Executive, during the term and for a period of five (5) years thereafter,
intentionally make use of any of the Confidential Information for any purpose or
for the benefit of any other person or entity, other than Company, under any
circumstances.
10.2 Company and Executive agree that a violation of the foregoing
covenants will cause irreparable injury to Company, and that in the event of a
breach or threatened breach by Executive of the provisions of this Section 10,
Company shall be entitled to an injunction restraining Executive from
disclosing, in whole or in part, any Confidential Information, or from rendering
any services to any person, firm, corporation, association or other entity to
whom any such information, in whole or in part, has been disclosed or is
threatened to be disclosed in violation of this Agreement. Nothing herein stated
shall be construed as prohibiting Company from pursuing any other rights and
remedies, at law or in equity, available to Company for such breach or
threatened breach, including the recovery of damages from Executive.
10.3 Notwithstanding anything contained in this Section 10 to the
contrary, "Confidential Information" shall not include (i) information in the
public domain as of the date hereof, (ii) information which enters the public
domain hereafter through no fault of Executive, (iii) information created,
discovered or developed by Executive independent of his association with
Company, provided that such information is supported by accompanying
documentation of such independent development. Nothing contained in this Section
10 shall be deemed to preclude the proper use by Executive of Confidential
Information in the exercise of his duties hereunder or the disclosure of
Confidential Information required by law
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11. ARBITRATION. Other than with respect to a proceeding for injunctive
relief referred to herein, any controversy or claim arising out of or relating
to this Agreement, the performance thereof or its breach or threatened breach
shall be settled by arbitration in New York, New York or other mutually
acceptable place in accordance with the then governing rules of the American
Arbitration Association. The finding of the arbitration panel or arbitrator
shall be final and binding upon the parties with the costs of arbitration to be
equally borne by the plaintiffs and the defendants, i.e. the costs borne by
defendant side in the arbitration, whether single or multiple, shall equal the
costs borne by the plaintiff side in the arbitration, whether single or
multiple. Judgement upon any arbitration award rendered may be entered and
enforced in any court of competent jurisdiction. In no event may the arbitration
determination change Executive's compensation, title, duties or
responsibilities, the entity to whom Executive reports or the principal place
where Executive is to render his services.
12. INDEMNIFICATION.
12.1 (a) Indemnification of Expenses. Except as provided in Section
12(b) hereof, the Company shall indemnify to the fullest extent permitted by law
if Executive was or is or becomes a party to or witness or other participant in,
or is threatened to be made a party to or witness or other participant in, any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Executive in
good faith believes might lead to the institution of any such action, suit,
proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other (hereinafter a "Claim") by reason of (or
arising in part out of) any event or occurrence related to the fact that
Executive is or was a director, officer, employee, agent or fiduciary of
Company, or any subsidiary of Company, or is or was serving at the request of
Company as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, limited liability company, trust or
other enterprise, or by reason of any action or inaction on the part of
Executive while serving in such capacity (hereinafter an "Indemnifiable Event")
against any and all expenses (including attorneys' fees and all other costs,
expenses and obligations incurred in connection with investigating, defending,
being a witness in or participating in (including on appeal), or preparing to
defend, be a witness in or participate in, any such action, suit, proceeding,
alternative dispute resolution mechanism, hearing, inquiry or investigation),
judgments, fines, penalties and amounts paid in settlement (if such settlement
is approved in advance by Company, which approval shall not be unreasonably
withheld) of such Claim and any federal, state, local or foreign taxes imposed
on Executive as a result of the actual or deemed receipt of any payments under
this Agreement (collectively, hereinafter "Expenses"), including all interest,
assessments and other charges paid or payable in connection with or in respect
of such Expenses. Such payment of Expenses shall be made by Company as soon as
practicable but in any event no later than twenty days after Executive presents
written demand therefor to Company.
(b) Limitation on Indemnification. The Company's obligation to
indemnify Executive pursuant to this Agreement shall not extend to acts of
Executive constituting gross negligence or other acts of malfeasance.
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12.2 Expenses; Indemnification Procedure.
(a) Subject to the other terms and conditions of this
Agreement, Company shall advance all Expenses incurred by Executive. The
advances to be made hereunder shall be paid by Company to Executive as soon as
practicable but in any event no later than twenty days after written demand by
Executive therefor to Company.
(b) Executive shall, as a condition precedent to Executive's
right to be indemnified under this Agreement, give Company notice in writing as
soon as practicable of any Claim made against Executive for which
indemnification will or could be sought under this Agreement. Notice to Company
shall be directed to the Board of Directors of Company at the address shown on
the signature page of this Agreement and to the address of each Director (or
such other address as Company shall designate in writing to Executive). In
addition, Executive shall give Company such information and cooperation as it
may reasonably require and as shall be within Executive's power.
(c) For purposes of this Agreement, the determination of any
Claim by judgment, order, settlement (whether with or without court approval) or
conviction, or upon a plea of nolo contendere, or its equivalent, shall not
create a presumption that Executive did not meet any particular standard of
conduct or have any particular belief or that a court has determined that
indemnification is not permitted by applicable law.
(d) If, at the time of the receipt by Company of a notice of a
Claim pursuant to Section 12.2(b) hereof, Company has liability insurance in
effect which may cover such Claim, Company shall give prompt notice of the
commencement of such Claim to the insurers in accordance with the procedures set
forth in the respective policies. Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Executive, all
amounts payable as a result of such action, suit, proceeding, inquiry or
investigation in accordance with the terms of such policies.
(e) In the event Company shall be obligated hereunder to pay
the Expenses of any Claim, Company shall be entitled to assume the defense of
such Claim with counsel approved by Executive, which approval shall not be
unreasonably withheld, upon the delivery to Executive of written notice of its
election so to do. After delivery of such notice, approval of such counsel by
Executive and the retention of such counsel by Company, Company will not be
liable to Executive under this Agreement for any fees of counsel subsequently
incurred by Executive with respect to the same Claim; provided that, (i)
Executive shall have the right to employ Executive's counsel in any such Claim
at Executive's expense and (ii) if (A) the employment of counsel by Executive
has been previously authorized by Company, (B) Executive shall have reasonably
concluded that there is a conflict of interest between Company and Executive in
the conduct of any such defense, or (C) Company shall not continue to retain
such counsel to defend such Claim, then the fees and expenses of Executive's
counsel shall be at the expense of Company. Company shall have the right to
conduct such defense as it sees fit in its sole discretion, including the right
to settle any claim against Executive without the consent of Executive so long
as in the case of the settlement (i) Company has the financial ability to
satisfy any monetary obligation involving Executive under such settlement and
(ii) the settlement does not impose injunctive type relief on the activities of
Executive. In all events, Executive will not unreasonably withhold its consent
to any settlement.
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12.3 Additional Indemnification Rights; Nonexclusivity.
(a) Except as provided in Section 12(b) hereof, the Company
hereby agrees to indemnify Executive to the fullest extent permitted by law,
notwithstanding that such indemnification is not specifically authorized by the
other provisions of this Agreement, Company's Certificate of Incorporation,
Company's Bylaws or by statute. In the event of any change after the date of
this Agreement in any applicable law, statute or rule which expands the right of
a Delaware corporation to indemnify a member of its Board of Directors or an
officer, employee, agent or fiduciary, it is the intent and agreement of the
parties hereto that Executive shall enjoy by this Agreement the greater benefits
afforded by such change. In the event of any change in any applicable law,
statute or rule which narrows the right of a Delaware corporation to indemnify a
member of its Board of Directors or an officer, employee, agent or fiduciary,
such change, to the extent not otherwise required by such law, statute or rule
to be applied to this Agreement, shall have no effect on this Agreement or the
parties' rights and obligations hereunder.
(b) The indemnification provided by this Agreement shall be in
addition to any rights to which Executive may be entitled under Company's
Certificate of Incorporation, its Bylaws, any agreement, any vote of
stockholders or disinterested directors, the Delaware General Corporation Law,
or otherwise. The indemnification provided under this Agreement shall continue
as to Executive for any action Executive took or did not take while serving in
an indemnified capacity even though Executive may have ceased to serve in such
capacity.
(c) Company shall not be liable under this Agreement to make
any payment in connection with any Claim made against Executive to the extent
Executive has otherwise actually received payment (under any insurance policy,
Certificate of Incorporation, Bylaw or otherwise) of the amounts otherwise
indemnifiable hereunder.
(d) If Executive is entitled under any provision of this
Agreement to indemnification by Company for some or a portion of Expenses
incurred in connection with any Claim, but not, however, for all of the total
amount thereof, Company shall nevertheless indemnify Executive for the portion
of such Expenses to which Executive is entitled.
13. NOTICES. Any notice required, permitted or desired to be given under
this Agreement shall be sufficient if it is in writing and (a) personally
delivered to Executive or an authorized member of Company, (b) sent by overnight
delivery or (c) sent by registered or certified mail, return receipt requested,
to Company's or Executive's address as provided in this Agreement or to a
different address designated in writing by either party. Notice is deemed given
on the day it is delivered personally or by overnight delivery, or five (5)
business days after it is sent by registered or certified mail.
14. ASSIGNMENT. Executive acknowledges that his services are unique and
personal. Accordingly, Executive may not assign his rights or delegate his
duties or obligations under this Agreement. Company's rights and obligations
under this Agreement shall inure to the benefit of and shall be binding upon
Company's successors and assigns. 15. WAIVER OF BREACH. Any waiver of a breach
of a provision of this Agreement, or any delay or failure to exercise a right
under a provision of this Agreement, by either party, shall not operate or be
construed as a waiver of that or any other subsequent breach or right.
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16. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties. It may not be changed orally but only by an agreement in writing which
is signed by the parties. The parties hereto agree that any existing employment
agreement between them shall terminate as of the date of this Agreement.
17. GOVERNING LAW; VENUE. This Agreement shall be construed in accordance
with and governed by the laws of the New York as applied to agreements entered
into and to be performed entirely in New York. Any dispute or controversy
concerning or relating to this Agreement shall be exclusively resolved in the
courts located in the City of New York and the State of New York.
18. SEVERABILITY. The invalidity or non-enforceability of any provision of
this Agreement or application thereof shall not affect the remaining valid and
enforceable provisions of this Agreement or application thereof.
19. CAPTIONS. Captions in this Agreement are inserted only as a matter of
convenience and reference and shall not be used to interpret or construe any
provisions of this Agreement.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement. Delivery of signed
counterparts via facsimile transmission shall be effective as manual delivery
thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties hereto has executed their
Agreement as of the date first herein above written.
COMPANY:
▇.▇. ▇▇▇▇▇▇ GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
EXECUTIVE:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
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