EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement ("Agreement") is made this day 18th
of
August, 2006, by and between XXXXXXX XXX ("Executive") and ASIA GLOBAL HOLDINGS
CORP., a publicly-held Nevada corporation, its subsidiaries, affiliates, joint
ventures and partnerships ("AAGH"), effective August 18, 2006 ("Effective
Date").
RECITALS
The
Board
of Directors of AAGH believes it is in the best interests of AAGH to employ
Executive as the President and Chief Executive Officer of AAGH.
AAGH
has
decided to offer Executive an employment agreement, the terms and provisions
of
which are set forth below.
NOW,
THEREFORE, IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
1.
POSITION AND DUTIES.
Executive
will be employed as the President and Chief Executive Officer of AAGH and shall
report only to the Board of Directors of AAGH (the "Board"). Executive shall
perform the duties of his position, as determined by the Board, in accordance
with the policies, practices and bylaws of AAGH. Executive also shall serve
as
an ex-officio member of the Board.
Executive
shall serve AAGH faithfully, loyally, honestly and to the best of his ability.
Executive will devote his best efforts to the performance of his duties for,
and
in the business and affairs of, AAGH.
AAGH
reserves the right, in its sole discretion, to change or modify Executive's
position, title and duties during the term of this Agreement, at which time
Executive may be entitled to terminate this Agreement for Good Reason as
provided in paragraph 7.
2.
COMPENSATION.
A.
BASE
SALARY.
Your
starting salary will be $60,000.00 per year, payable semi-monthly. Thereafter,
Executive's Base Salary will be reviewed at least annually in accordance with
AAGH's executive compensation review policies and practices, as determined
by
the Board, in its sole discretion. Executive's Base Salary may be increased
upon
any such review, but in no event shall the amount of Executive's Base Salary
as
set forth in this paragraph 2A be decreased.
B.
BONUS
The
bonus
is awarded based on performance as evaluated during the performance review
process. If you are awarded a bonus, it will be payable to you if you remain
employed with AAGH through the bonus payment date. Currently, the bonus
potential ranges from 0-120% of your salary during the review period. Your
first
eligibility for a bonus will be August 2007. Any subsequent bonus eligibility
will occur according to AAGH’s executive review policies and
practices.
C.
SIGNING BONUS
Additionally,
you will have the opportunity to receive a signing bonus in the total gross
amount of 2,000,000 000 Xxxxxxxxxx Xxxxxx Stock (“Bonus Shares”). The signing
bonus will be payable upon execution of this Agreement. Your entitlement to
retain the Bonus Shares is conditioned on you remaining continuously employed
by
AAGH for one year after your start date. In the unlikely event that you leave
AAGH before the first anniversary of your start date, the Bonus Shares will
not
be earned and must be returned to AAGH. If your employment ends during the
previously described time period due to death or total or permanent disability,
you will not be required to return any Bonus Shares that have been paid. You
hereby authorize AAGH to withhold the repayable amounts from any monies owed
to
you.
D.
STOCK
AWARD
You
will
be granted a Stock Award of 500,000 shares of Asia Global Holdings Corp. Series
A Convertible Preferred Stock (“Preferred Shares”), convertible at 1 Preferred
Share to 200 shares of Asia Global Holdings Corp. Common Stock (“Common
Shares”). This award is payable upon the execution of this Agreement. The
conversion, of any or all of the Preferred Shares, will take place 10 days
after
written notice by Executive is given to the Board of AAGH.
3. MANAGEMENT INCENTIVE PROGRAM.
Commencing
with the incentive program for the fiscal year ending on December 31, 2006,
and
at all times thereafter, Executive shall be eligible to participate in the
AAGH
Management Incentive Program ("MIP") (or any other plan that is designated
by
the Board as replacing the MIP) and to receive such additional compensation
as
may be provided by the MIP from time to time.
4.
TERM
AND TERMINATION.
This
Agreement will continue in full force and effect until it is terminated by
the
parties. This Agreement may be terminated in any of the following ways: (a)
it
may be renegotiated and replaced by a written agreement signed by both parties;
(b) AAGH may elect to terminate this Agreement with or without "Cause", as
defined below; (c) Executive may elect to terminate this Agreement with or
without "Good Reason", as defined below; or (d) either party may serve notice
on
the other of its desire to terminate this Agreement at the end of the "Initial
Term" or any "Renewal Term".
The
"Initial Term" of this Agreement shall expire by its terms five years from
the
Effective Date of this Agreement, unless sooner terminated in accordance with
the provisions of this Agreement. This Agreement will be renewed at the end
of
the Initial Term for an additional five-year period (a "Renewal Term"), unless
either party serves notice of its desire not to renew or of its desire to modify
this Agreement on the other. Such notice must be given at least forty-five
(45)
days before the end of the Initial Term or the applicable Renewal
Term.
If
AAGH
notifies Executive of its desire not to renew this Agreement pursuant to this
paragraph 4 and at the time of such notification AAGH does not have "Cause"
to
terminate this Agreement pursuant to paragraph 7A, Executive shall receive
the
Severance Benefits pursuant to paragraph 8.
If
Executive notifies AAGH of his desire not to renew this Agreement pursuant
to
this paragraph 4 and at the time of such notification Executive has Good Reason
to terminate this Agreement pursuant to paragraph 6A, Executive shall receive
the Severance Benefits pursuant to paragraph 8. Executive also shall receive
the
Severance Benefits pursuant to paragraph 8 if AAGH proposes to modify this
Agreement in a manner that gives rise to Good Reason pursuant to paragraph
6A
for Executive's termination of employment and Executive rejects such proposed
modifications. Severance Benefits will not be payable pursuant to the preceding
sentence if AAGH rescinds the proposed modifications and offers Executive a
new
Agreement that does not include any proposed modifications that give rise to
Good Reason for Executive's termination of employment.
5. TERMINATION BY AAGH.
A.
TERMINATION FOR CAUSE.
AAGH
may
terminate this Agreement and Executive's employment for Cause at any time upon
written notice. This means that AAGH has the right to terminate the employment
relationship for Cause at any time should there be Cause to do so.
For
purposes of this Agreement, "Cause" shall be limited to discharge resulting
from
a determination by the Board that Executive: (a) has been convicted of a felony
involving dishonesty, fraud, theft or embezzlement; (b) has repeatedly failed
or
refused, after written notice from AAGH, in a material respect to follow
reasonable policies or directives established by AAGH; (c) has willfully and
persistently failed, after written notice from AAGH, to attend to material
duties or obligations imposed upon him under this Agreement; (d) has performed
an act or failed to act, which, if he were prosecuted and convicted, would
constitute a felony involving One Thousand Dollars ($1,000) or more of money
or
property of AAGH; or (e) has misrepresented or concealed a material fact for
purposes of securing employment with AAGH or this Employment Agreement. The
existence of "Cause" shall be determined by AAGH's Board of Directors acting
in
good faith after prior notice to Executive and after providing Executive with
an
opportunity to be heard.
Because
Executive is in a position which involves great responsibilities, AAGH is not
required to utilize its progressive discipline policy.
If
this
Agreement and Executive's employment is terminated for Cause, Executive shall
receive no Severance Benefits.
B. TERMINATION WITHOUT CAUSE.
AAGH
also
may terminate this Agreement and Executive's employment without Cause at any
time by giving sixty (60) days prior written notice to Executive. In the event
this Agreement and Executive's employment are terminated by AAGH without Cause,
Executive shall receive the Severance Benefits pursuant to paragraph 8. AAGH
may
place Executive on a paid administrative leave, and bar or restrict Executive's
access to AAGH facilities, contemporaneously with or at any time following
the
delivery of the written notice to Executive.
6.
TERMINATION BY EXECUTIVE.
Executive
may terminate this Agreement and his employment with or without "Good Reason"
in
accordance with the provisions of this paragraph 6.
A.
TERMINATION FOR GOOD REASON.
Executive
may terminate this Agreement and his employment for "Good Reason" by giving
written notice to AAGH within sixty (60) days, or such longer period as may
be
agreed to in writing by AAGH, of Executive's receipt of notice of the occurrence
of any event constituting "Good Reason", as described below.
Executive
shall have "Good Reason" to terminate this Agreement and his employment upon
the
occurrence of any of the following events: (a) Executive is demoted to a
position of less stature or importance within AAGH than the position described
in paragraph 1; (b) Executive is assigned duties inconsistent with the
positions, duties, responsibility and status of the President and Chief
Executive Officer of AAGH; (c) Executive is required to relocate to an
employment location that is more than twenty-five (25) miles from his current
employment location (which the parties agree is AAGH's present Hong Kong
headquarters); (d) Executive's Base Salary rate (which shall include, for the
first year of Executive's employment only, any additional compensation to which
Executive is entitled under paragraph 2B) is reduced to a level that is at
least
ten percent (10%) less than the salary (and in the case of Executive's first
year of employment only, the additional compensation to which Executive is
entitled under paragraph 2B) paid to Executive during any prior calendar year,
unless Executive has agreed to said reduction; (e) the potential incentive
compensation (or bonus) to which Executive may become entitled under the MIP
at
any level of performance by the Executive or AAGH is reduced by seventy-five
percent (75%) or more as compared to any prior year; or (f) Executive is placed
on an administrative leave or is barred or restricted access to AAGH facilities
for a period of more than sixty (60) days provided, however, that the terms
of
this clause (f) shall not apply in the event that Executive is placed on an
administrative leave pursuant to paragraphs 5B or 6C hereof or in the event
that
Executive is placed on an administrative leave because AAGH has "Cause" to
terminate Executive's employment with AAGH.
If Executive terminates this Agreement and his employment for Good Reason, Executive shall be entitled to receive Severance Benefits pursuant to paragraph 8.
B.
TERMINATION WITHOUT GOOD REASON.
Executive
also may terminate this Agreement and his employment without Good Reason at
any
time by giving thirty (30) days notice to AAGH. If Executive terminates this
Agreement and his employment without Good Reason, Executive shall not receive
Severance Benefits pursuant to paragraph 8.
C.
ADMINISTRATIVE LEAVE.
AAGH
may
place Executive on a paid administrative leave and bar or restrict Executive's
access to AAGH facilities, contemporaneously with or at any time following
the
delivery of the written notice of termination by Executive pursuant to paragraph
6A or 6B.
7.
DEATH
OR DISABILITY.
This
Agreement will terminate automatically on Executive's death. Any compensation
or
other amounts due to Executive for services rendered prior to his death shall
be
paid to Executive's surviving spouse, or if Executive does not leave a surviving
spouse, to Executive's estate. No other benefits shall be payable to Executive's
heirs pursuant to this Agreement, but amounts may be payable pursuant to any
life insurance or other benefit plans maintained by AAGH.
In
the
event Executive becomes "Disabled", Executive's employment hereunder and AAGH's
obligation to pay Executive's Base Salary and, in the event Executive becomes
"Disabled" during the first year of his employment with AAGH any additional
compensation to which Executive may be entitled pursuant to paragraph 2B, (less
any amounts payable to Executive pursuant to any long-term disability insurance
policy paid for by AAGH) shall continue for a period of twelve (12) months
from
the date of Executive's initial absence due to such Disability. If at the end
of
said twelve (12) month period Executive has not recovered from such Disability,
Executive's employment hereunder shall automatically cease and terminate.
Executive shall be considered "Disabled" or to be suffering from a "Disability"
for purposes of this paragraph 7 if, in the judgment of a licensed physician
selected by the Board of Directors of AAGH and confirmed by a licensed physician
designated by Executive, and after any reasonable accommodations required by
applicable law, he is unable to perform the essential functions of his position
due to a physical or mental impairment, and such incapacity is expected to
continue for a period of at least twelve (12) consecutive months from the date
of the initial absence due to such incapacity. The determination by said
physicians shall be binding and conclusive for all purposes. If the physician
selected by the Board and the physician selected by Executive cannot agree,
the
two (2) physicians shall select a third (3rd) physician. The decision of the
third (3rd) physician concerning Executive's Disability then shall be binding
and conclusive on all interested parties.
8. SEVERANCE BENEFITS.
If
during
the Initial Term or any Renewal Term, this Agreement and Executive's employment
are terminated without Cause by AAGH pursuant to paragraph 5B prior to the
last
day of the Initial Term or any Renewal Term, or if Executive elects to terminate
this Agreement for Good Reason pursuant to paragraph 6A, Executive shall receive
the "Severance Benefits" provided by this paragraph. To the extent provided
in
paragraph 4, Executive also shall receive the Severance Benefits if this
Agreement is not renewed. In addition, Executive also shall receive the
Severance Benefits if his employment is terminated due to Disability pursuant
to
paragraph 7.
The
Severance Benefits shall begin immediately following the effective date of
termination of employment and will continue to be payable for the balance,
if
any, of the Initial Term or the then current Renewal Term and for a period
of
twelve (12) months thereafter.
The
Executive's Severance Benefits shall consist of the continuation of the
Executive's then Base Salary and any applicable additional compensation as
set
forth in paragraph 2B for the balance, if any, of the Initial Term or the then
current Renewal Term and for a period of twelve (12) months thereafter;
provided, however, that for the twelve (12) month period following the end
of
the Initial Term or the then current Renewal Term in lieu of receiving the
Base
Salary and any applicable additional compensation called for by paragraph 2B,
Executive shall receive Two Hundred Thousand Dollars ($200,000.00), payable
in
equal semi-monthly installments. The Severance Benefits also shall consist
of
the continuation of any health, life, disability, or other insurance benefits
that Executive was receiving as of his last day of active employment for the
balance, if any, of the Initial Term or the then current Renewal Term and for
a
period of twelve (12) months thereafter. If a particular insurance benefit
may
not be continued for any reason, AAGH shall pay the cash equivalent to the
Executive on a monthly basis or in a single lump sum. The amount of the cash
equivalent of the benefit and whether the cash equivalent will be paid in
monthly installments or in a lump sum will be determined by AAGH in the exercise
of its discretion.
If
Executive voluntarily terminates this Agreement and his employment without
Good
Reason prior to the end of the Initial Term or any Renewal Term, or if AAGH
terminates the Agreement and Executive's employment for Cause, no Severance
Benefits shall be paid to Executive. No Severance Benefits are payable in the
event of Executive's death while in the active employ of AAGH.
Severance Benefits shall immediately cease if Executive commits a material violation of any of the terms of this Agreement relating to confidentiality and non-disclosure, as set forth in paragraph 10, or the Covenant-Not-To-Compete, as set forth in paragraph 11. Only material violations will result in the loss of Severance Benefits. In addition, if a violation, even if material, is one that may be cured, the violation will not be considered to be material unless Executive fails to cure said violation within thirty (30) days after receiving written notice of said violation from AAGH or unless Executive repeats said violation at any time after receiving said notice.
In
the
event that AAGH ceases payment of Severance Benefits to Executive in accordance
with the preceding paragraph due to AAGH's good faith belief that Executive
has
committed a material violation of any of the terms of this Agreement relating
to
confidentiality and non-disclosure, as set forth in paragraph 10, or the
Covenant-Not-To-Compete, as set forth in paragraph 11, the confidentiality
and
non-disclosure requirements set forth in paragraph 11 and the
Covenant-Not-To-Compete set forth in paragraph 11 shall remain in full force
and
effect. In the event that AAGH ceases payment of Severance Benefits to Executive
without a good faith belief the Executive has committed a material violation
of
such provisions, in addition to such other remedies as may be available to
Executive in law or in equity, the confidentiality and non-disclosure
requirements set forth in paragraph 11 and the Covenant-Not-To-Compete set
forth
in paragraph 11 shall lapse and be without force and effect unless AAGH resumes
the payments within sixty (60) days of its receipt of a demand to do so from
Executive.
The
payment of Severance Benefits shall not be affected by whether Executive seeks
or obtains other employment. Executive shall have no obligation to seek or
obtain other employment and Executive's Severance Benefits shall not be impacted
by Executive's failure to mitigate.
9. BENEFITS.
Executive
will be entitled to participate in any benefit plans, including, but not limited
to, retirement plans, stock option plans, disability plans, life insurance
plans
and health and dental plans available to other AAGH executive employees, subject
to any restrictions (including waiting periods) specified in said
plans.
Executive
is entitled to six (6) weeks of paid vacation per calendar year, with such
vacation to be scheduled and taken by Executive in his discretion, provided
that
such vacation shall not interfere with the performance of Executive's duties
hereunder.
10.
CONFIDENTIALITY AND NON-DISCLOSURE.
During
the course of his employment, Executive will become exposed to a substantial
amount of confidential and proprietary information, including, but not limited
to financial information, annual reports, audited and unaudited financial
reports, operational budgets and strategies, methods of operation, customer
lists, strategic plans, business plans, marketing plans and strategies, new
business strategies, merger and acquisition strategies, management systems
programs, computer systems, personnel and compensation information and payroll
data, and other such reports, documents or information (collectively the
"Confidential and Proprietary Information"). In the event his employment is
terminated by either party for any reason, Executive promises that he will
not
take with him any copies of such Confidential and Proprietary Information in
any
form, format, or manner whatsoever (including computer print-outs, computer
tapes, floppy disks, CD-Roms, etc.) nor will he disclose the same in whole
or in
part to any person or entity, in any manner either directly or indirectly.
Excluded from this Agreement is information that is already disclosed to third
parties and is in the public domain or that AAGH consents to be disclosed,
with
such consent to be in writing. The provisions of this paragraph shall survive
the termination of this Agreement.
11. COVENANT-NOT-TO-COMPETE.
A.
INTERESTS TO BE PROTECTED.
The
parties acknowledge that during the term of his employment, Executive will
perform essential services for AAGH, its employees and shareholders, and for
clients of AAGH. Therefore, Executive will be given an opportunity to meet,
work
with and develop close working relationships with AAGH's clients on a first-hand
basis and will gain valuable insight as to the clients' operations, personnel
and need for services. In addition, Executive will be exposed to, have access
to, and be required to work with, a considerable amount of AAGH's Confidential
and Proprietary Information.
The
parties also expressly recognize and acknowledge that the personnel of AAGH
have
been trained by, and are valuable to AAGH, and that if AAGH must hire new
personnel or retrain existing personnel to fill vacancies it will incur
substantial expense in recruiting and training such personnel. The parties
expressly recognize that should Executive compete with AAGH in any manner
whatsoever, it could seriously impair the goodwill and diminish the value of
AAGH's business. The parties acknowledge that this covenant has an extended
duration; however, they agree that this covenant is reasonable and it is
necessary for the protection of AAGH, its shareholders and
employees.
For
these
and other reasons, and the fact that there are many other employment
opportunities available to Executive if he should terminate, the parties are
in
full and complete agreement that the following restrictive covenants (which
together are referred to as the "Covenant-Not-To-Compete") are fair and
reasonable and are freely, voluntarily and knowingly entered into. Further,
each
party has been given the opportunity to consult with independent legal counsel
before entering into this Agreement.
B.
DEVOTION TO EMPLOYMENT.
Executive
shall devote substantially all his business time and efforts to the performance
of his duties on behalf of AAGH. During his term of employment, Executive shall
not at any time or place or to any extent whatsoever, either directly or
indirectly, without the express written consent of AAGH, engage in any outside
employment, or in any activity competitive with or adverse to AAGH's business,
practice or affairs, whether alone or as partner, officer, director, employee,
shareholder of any corporation or as a trustee, fiduciary, consultant or other
representative. This is not intended to prohibit Executive from engaging in
nonprofessional activities such as personal investments or conducting to a
reasonable extent private business affairs which may include other boards of
directors' activity, as long as they do not conflict with AAGH. Participation
to
a reasonable extent in civic, social or community activities is
encouraged.
C. NON-SOLICITATION OF CLIENTS.
During
the term of Executive's employment with AAGH and for a period of twelve (12)
months after the termination of employment with AAGH, regardless of who
initiates the termination and for whatever reason, Executive shall not directly
or indirectly, for himself, or on behalf of, or in conjunction with, any other
person(s), company, partnership, corporation, or governmental entity, in any
manner whatsoever, call upon, contact, encourage, handle or solicit client(s)
of
AAGH with whom he has worked as an employee of AAGH at any time prior to
termination, or at the time of termination, for the purpose of soliciting or
selling such customer the same, similar, or related services that he provided
on
behalf of AAGH.
D.
NON-SOLICITATION OF EMPLOYEES.
During
the term of Executive's employment with AAGH and for a period of twelve (12)
months after the termination of employment with AAGH, regardless of who
initiates the termination and for any reason, Executive shall not directly
or
indirectly, for himself, or on behalf of, or in conjunction with, any other
person(s), company, partnership, corporation, or governmental entity, seek
to
hire, and/or hire any of AAGH's personnel or employees for the purpose of having
such employee engage in services that are the same, similar or related to the
services that such employee provided for AAGH.
E.
COMPETING BUSINESS.
During
the term of this Agreement and for a period of twelve (12) months after the
termination of employment with AAGH, regardless of who initiates the termination
and for any reason, Executive shall not, directly or indirectly, for himself,
or
on behalf of, or in conjunction with, any other person(s), company, partnership,
corporation, or governmental entity, in any manner whatsoever, engage in the
same or similar business as AAGH, which would be in direct competition with
any
AAGH line of business, in any geographical service area where AAGH is engaged
in
business, or was considering engaging in business at any time prior to the
termination or at time of termination. For the purposes of this provision,
the
term "competition" shall mean directly or indirectly engaging in or having
a
substantial interest in a business or operation which has been, is, or will
be,
performing the same services provided by AAGH.
F. JUDICIAL AMENDMENT.
If
the
scope of any provision of this Agreement is found by the Court to be too broad
to permit enforcement to its full extent, then such provision shall be enforced
to the maximum extent permitted by law. The parties agree that the scope of
any
provision of this Agreement may be modified by a judge in any proceeding to
enforce this Agreement, so that such provision can be enforced to the maximum
extent permitted by law. If any provision of this Agreement is found to be
invalid or unenforceable for any reason, it shall not affect the validity of
the
remaining provisions of this Agreement.
G.
INJUNCTIVE RELIEF, DAMAGES AND FORFEITURE.
Due
to
the nature of Executive's position with AAGH, and with full realization that
a
violation of this Agreement will cause immediate and irreparable injury and
damage, which is not readily measurable, and to protect AAGH's interests,
Executive understands and agrees that in addition to instituting legal
proceedings to recover damages resulting from a breach of this Agreement, AAGH
may seek to enforce this Agreement with an action for injunctive relief, to
cease or prevent any actual or threatened violation of this Agreement on the
part of Executive.
H.
SURVIVAL.
The
provisions of this paragraph shall survive the termination of this
Agreement.
12. DEFERRAL OF AMOUNTS PAYABLE UNDER THIS AGREEMENT.
A
payment
due pursuant to this Agreement or the MIP may be deferred if and to the extent
that the payment does not satisfy the requirements to be "qualified
performance-based compensation" (as such term is defined by the regulations
issued under Section 162(m) of the Internal Revenue Code of 1986 (the "Code"))
and when combined with all other payments received during the year that are
subject to the limitations on deductibility under Section 162(m) of the Code,
the payment exceeds the limitations on deductibility under Section 162(m) of
the
Code. The deferral of payments shall be in the discretion of the Compensation
Committee of AAGH, and shall be made pursuant to a Deferred Compensation
Agreement or Plan acceptable to AAGH and Executive. Such deferred amounts shall
be paid no later than the sixtieth (60th) day after the end of the next
succeeding calendar year, provided that such payment, when combined with any
other payments subject to the Section 162(m) limitations received during the
year, does not exceed the limitations on deductibility under Section 162(m)
of
the Code. If the payments in such succeeding calendar year exceed the
limitations on deductibility under Section 162(m) of the Code, such payments
shall continue to be deferred to the next succeeding year. The above procedure
shall be repeated until such payments can be paid without exceeding the
limitation on deductibility under Section 162(m) of the Code.
13.
OTHER
AGREEMENTS.
AAGH
and
Executive will enter into a Change of Control Agreement, which will provide
the
Executive with certain additional protections if his employment is terminated
in
certain instances following a "change of control." Nothing in this Agreement
is
intended to alter or modify the Change of Control Agreement, which, once
executed, shall continue in full force and effect.
14.
BUSINESS EXPENSES.
AAGH
will
reimburse Executive for any and all necessary, customary, and usual expenses,
properly receipted in accordance with AAGH's policies, incurred by Executive
on
behalf of AAGH.
15.
AMENDMENTS.
This
Agreement and the Executive's Change of Control Agreement constitute the entire
agreement between the parties as to the subject mater hereof. Accordingly,
there
are no side agreements or verbal agreements other than those which are stated
above. Any amendment, modification or change in this Agreement must be done
so
in writing and signed by both parties.
16. SEVERABILITY.
In
the
event a court or arbitrator declares that any provision of this Agreement is
invalid or unenforceable, it shall not affect or invalidate any of the remaining
provisions. Further, the court shall have the authority to re-write that portion
of the Agreement it deems unenforceable, to make it enforceable.
17.
GOVERNING LAW.
The
law
of the Sate of Nevada shall govern the interpretation and application of all
of
the provisions of this Agreement.
18.
INDEMNITY.
AAGH
shall indemnify Executive to the fullest extent permitted or required by the
laws of the State of Nevada of and from any "Expenses" incurred by Executive
in
any "Proceeding."
For
purposes of this paragraph 18, "Expenses" shall mean and include all expense,
liability and loss including expenses of investigations, judicial or
administrative proceedings or appeals, attorney, accountant and other
professional fees and disbursements, judgments, fines, and amounts paid in
settlement.
For
purposes of this paragraph 18, "Proceeding" shall mean and include any
threatened, pending or completed action, suit or proceeding, whether brought
in
the right of the Corporation or otherwise and whether of a civil, criminal,
administrative or investigative nature, in which the Executive may be or may
have been involved as a party, witness or otherwise, by reason of the fact
that
the Executive is or was an officer of AAGH or is or was serving at the request
of AAGH as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, whether or not serving
in
such capacity at the time any liability or expense is incurred for which
indemnification may be provided under this Agreement.
AAGH
shall pay the Expenses incurred by Executive in any Proceeding in advance of
the
final disposition of the Proceeding at the written request of Executive, if
Executive (a) furnishes AAGH with a written affirmation of Executive's good
faith belief that he is entitled to indemnification by AAGH; and (b) furnishes
AAGH with a written undertaking to repay the advance to the extent that it
is
ultimately determined that Executive is not entitled to be indemnified by AAGH.
Such undertaking shall be an unlimited general obligation of Executive, but
need
not be secured. Advances pursuant to this paragraph 19 shall be made no later
than twenty (20) days after AAGH's receipt of the affirmation and undertakings
set forth above and shall be made without regard to the Executive's ability
to
repay the amount advanced and without regard to Executive's ultimate entitlement
to indemnification under this Agreement.
19. DISPUTE RESOLUTION.
A.
MEDIATION.
Any
and
all disputes arising under, pertaining to or touching upon this Agreement or
the
statutory rights or obligations of either party hereto, shall, if not settled
by
negotiation, be subject to non-binding mediation under the National Rules for
the Resolution of Employment Disputes of the American Arbitration Association
("AAA") in effect on the date of the first notice of demand for mediation,
before an independent mediator selected by the parties pursuant to paragraph
19D. Notwithstanding the foregoing, both Executive and AAGH may seek preliminary
judicial relief if such action is necessary to avoid irreparable damage during
the pendency of the proceedings described in this paragraph 19. Any demand
for
mediation shall be made in writing and served upon the other party to the
dispute, by certified mail, return receipt requested, at the business address
of
AAGH, or at the last known residence address of Executive, respectively. The
demand shall set forth with reasonable specificity the basis of the dispute
and
the relief sought. The mediation hearing will occur at a time and place
convenient to the parties in Xxxxx County, Nevada, within thirty (30) days
of
the date of selection or appointment of the mediator.
B.
ARBITRATION.
In
the
event that the dispute is not settled through mediation, the parties shall
then
proceed to binding arbitration before a single independent arbitrator selected
pursuant to paragraph 19D. The mediator shall not serve as arbitrator. TO THE
EXTENT ALLOWABLE UNDER APPLICABLE LAW, ALL DISPUTES INVOLVING ALLEGED UNLAWFUL
EMPLOYMENT DISCRIMINATION, BREACH OF CONTRACT OR POLICY, OR EMPLOYMENT TORT
COMMITTED BY AAGH OR A REPRESENTATIVE OF AAGH, INCLUDING CLAIMS OF VIOLATIONS
OF
FEDERAL OR STATE DISCRIMINATION STATUTES OR PUBLIC POLICY, SHALL BE RESOLVED
PURSUANT TO THIS POLICY AND THERE SHALL BE NO RECOURSE TO COURT, WITH OR WITHOUT
A JURY TRIAL. The arbitration hearing shall occur at a time and place convenient
to the parties in Xxxxx County, Nevada, within thirty (30) days of selection
or
appointment of the arbitrator. If AAGH has adopted a policy that is applicable
to arbitrations with executives, the arbitration shall be conducted in
accordance with said policy to the extent that the policy is consistent with
this Agreement and the Federal Arbitration Act, 9 U.S.C. Sections 1-16. If
no
such policy has been adopted, the arbitration shall be governed by the National
Rules for the Resolution of Employment Disputes of AAA in effect on the date
of
the first notice of demand for arbitration. The arbitrator shall issue written
findings of fact and conclusions of law, and an award, within fifteen (15)
days
of the date of the hearing unless the parties otherwise agree.
C. DAMAGES.
In
cases
of breach of contract or policy, damages shall be limited to contract damages.
In cases of discrimination claims prohibited by statute, the arbitrator may
direct payment consistent with the applicable statute. In cases of employment
tort, the arbitrator may award punitive damages if proved by clear and
convincing evidence. The arbitrator may award fees to the prevailing party
and
assess costs of the arbitration to the non-prevailing party. Issues of
procedure, arbitrability, or confirmation of award shall be governed by the
Federal Arbitration Act, 9 U.S.C. Sections 1-16, except that Court review of
the
arbitrator's award shall be that of an appellate court reviewing a decision
of a
trial judge sitting without a jury.
D.
SELECTION OF MEDIATORS OR ARBITRATORS.
The
parties shall select the mediator or arbitrator from a panel list made available
by the AAA. If the parties are unable to agree to a mediator or arbitrator
within ten (10) days of receipt of a demand for mediation or arbitration, the
mediator or arbitrator will be chosen by alternatively striking from a list
of
five (5) mediators or arbitrators obtained by AAGH from AAA. Executive shall
have the first strike.
IN WITNESS WHEREOF, AAGH and Executive have executed this Agreement on this 18th day of August, 2006.
"EXECUTIVE"
By:
/s/ Xxxxxxx Xxx
Xxxxxxx Xxx
AAGH
CORPORATION