Employment Agreement - Zenascent Inc. and Adam Goldberg
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the first day
of February 1, 2001, by and between ZENASCENT, INC., a Delaware corporation
maintaining its principal offices at 1 World Trade Center, Suite 7967, New York,
New York 10048 (the "Company") and ADAM GOLDBERG ("Employee"), an individual
residing at 330 16th Street, Brooklyn, New York, 11215.
W I T N E S S E T H:
WHEREAS, the Company desires to employ Employee as President and
Employee desires to gain employment as President of the Company; and
WHEREAS, Employee is willing to accept such employment, upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT OF EMPLOYEE AND SERVICES TO BE RENDERED. The Company
hereby engages Employee as President and Employee agrees that he shall perform
such duties as are customarily rendered by such an employee, as well as such
duties described in Section 3 below.
2. TERM. The Company hereby engages Employee, and Employee hereby
accepts the engagement described hereunder, for a period from the date hereof to
the first anniversary of the date hereof, subject to prior termination by mutual
agreement of the parties hereto or hereinafter provided.
3. POSITION AND DUTIES. Employee shall serve as the Company's President
on a full-time basis. In connection with his responsibilities as President,
Employee shall oversee all day-to-day operations of the Vice President of the
Company. In connection with these duties, Employee shall report directly to the
Company's Board of Directors. Employee shall also have such powers and duties as
may from time to time be prescribed by the Board of Directors or bylaws of the
Company.
4. COMPENSATION.
4.1 Salary. For Employee's services hereunder, the Company shall:
(i) pay the Employee one thousand dollars ($1,000) per
month, payable on the first day following each month of
employment; and
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(ii) upon completion of this Agreement, grant and deliver to
the Employee an option (an "Option") to purchase from
the Company thirty thousand (30,000) shares of the
Company's Common Stock, $0.01 par value per share (the
"Shares") exercisable at a price equal to the closing
bid price of the Company's shares of Common Stock (as
reported by Bloomberg Financial Markets on the OTC
Bulletin Board or such other United States stock
exchange or public trading market which is at the time
the principal exchange for trading of the Common Stock)
on the date of grant. The Options shall be issued
pursuant to the terms and conditions of the 1998
Incentive and Non-Qualified Stock Option Plan ("Plan")
which is incorporated in this Option as though set forth
in full, and shall be subject to the terms set forth in
Section 5 hereto.
4.2 Discretionary Bonus. From time to time during the Term, the
Company may pay to the Employee additional compensation in an amount determined
by the sole discretion of the board of directors.
4.4 401(k) Plan. Employee shall be entitled to participate in any
401(k) program that the Company may institute during the term specified in
Section 2, herein.
5. OPTION RIGHTS.
5.1 Number and Price. The number and price of the Shares subject
to the Option shall be the number and price set forth in Section 4.1(ii) hereto,
subject to any adjustments which may be made pursuant to Section 5.9 below.
5.2 Duration. Subject to the terms and conditions set forth
herein, each Option may be exercised to purchase the Shares covered by that
Option on or before the fifth anniversary of the date of grant of such Option
(the "Expiration Date"). Each Option shall terminate and no Shares may be
purchased after its respective Expiration Date.
5.3 THIS SECTION INTENTIONALLY OMITTED
5.4 Exercise Procedure. Subject to the terms and conditions set
forth herein, the Options are exercisable by a written notice signed by the
Employee and delivered to the Company at its executive offices, signifying the
Employee's election to exercise an Option. The notice must state the number of
Shares as to which the Employee's Option is being exercised, must contain a
statement by the Employee (in a form acceptable to the Company) that such Shares
are being acquired by the Employee for investment and not with a view to their
distribution or resale (unless a Registration Statement covering the Shares has
been declared effective by the Securities and Exchange Commission) and must be
accompanied by the full purchase price of the Shares being purchased. Payment
shall be in cash, or by certified or bank cashier's check payable to the order
of the Company, free from all collection charges.
If notice of the exercise of an Option is given by the person or
persons other than the Employee, the Company may require, as a condition to the
exercise of the Option, the submission to the Company of appropriate proof of
the right of such person or person to exercise the Option.
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Certificate for Shares so purchased will be issued as soon as
practicable and shall bear a restrictive legend stating that the Shares have not
been registered under the Securities Act of 1933, that the shares have been
acquired for investment purposes and not with a view to distribution or resale,
and that the Shares may not be sold, assigned, pledged, hypothecated, or
otherwise transferred without an effective registration statement for such
shares under the Securities Act of 1933 and applicable state securities laws or
an opinion of counsel satisfactory to the Company to the effect that
registration is not required under such laws. The Company, however, shall not be
required to issue or deliver a certificate for any Shares until it has complied
with all requirements of the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, any stock exchange on which the Company's
Stock may then be listed and all applicable state laws in connection with the
issuance or sale of such Shares or the listing of such Shares on such exchange.
Until the issuance of the certificate for such Shares, the Employee or such
other person as may be entitled to exercise the Option, shall have none of the
rights of a stockholder with respect to Shares subject to the Option.
5.5 Delivery of Certificates. As soon as practicable after the
Company receives payment for the Shares, it shall deliver a certificate or
certificates representing the Shares so purchased to the Employee.
5.6 Transferability. The Option is personal to the Employee and
during the Employee's lifetime may be exercised only by the Employee. The Option
shall not be transferable other than by will or the laws of descent and
distribution.
5.7 Expiration. In the event that an option holder ceases to be an
employee of the Company or of any subsidiary for any reason other than permanent
disability (as determined by the Board of Directors) or death, the Option,
including any unexercised portion thereof, which was otherwise exercisable on
the date of termination, shall expire unless exercised within a period of three
months from the date on which the Employee ceased to be so employed, but in no
event after the Expiration Date. In the event of the death of Employee during
this three month period, the Option shall be exercisable by his or her personal
representatives, heirs or legatees to the same extent that the Employee could
have exercised the Option if he or she had not died, for the three months from
the date of death, but in no event after the Expiration Date.
5.8 Employment Rights. The Option does not confer on the Employee
any right to continue in the employ of the Company or interfere in any way with
the right of the Company to determine the terms of the Employee's employment.
5.9 Change in Corporate Structure. In the event of a
reorganization, recapitalization, stock split, stock dividend, combination of
shares, merger, consolidation, rights offering, or any other change in the
corporate structure or Stock of the Company, the Board shall make such
adjustments, if any, as it deems appropriate in the number and kind of shares
covered by the Option, or in the Option price, or both. Notwithstanding any
provision to the contrary, the Committee or the Board may cancel, amend, alter
or supplement any term or provision of the Option to avoid any penalty
provisions of the Code.
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5.10 Compliance with Legal Requirements. The Option shall be
subject to the requirement that if at any time the Board shall determine that
the registration, listing or qualification of the Shares covered hereby upon any
securities exchange or under any federal or state law, or the consent or
approval of any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the granting of the Option or the purchase
of the Shares, the Option may not be exercised unless and until such
registration, listing, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Board. The
Board may require that the person exercising the Option shall make such
representations and agreements and furnish such information as it deems
appropriate to assure compliance with the foregoing or any other applicable
legal requirements.
5.11 Incentive Stock Option Treatment. The Option is intended to
qualify for "incentive stock option" treatment under the provisions of Section
422A of the Internal Revenue Code of 1954, as amended. HOWEVER, THE EMPLOYEE IS
URGED TO CONSULT WITH HIS OR HER INDIVIDUAL TAX ADVISOR PRIOR TO EXERCISING AN
OPTION SINCE THE EXERCISE OF THE OPTION MAY RESULT IN ADVERSE TAX CONSEQUENCES
INCLUDING THE PAYMENT OF ADDITIONAL FEDERAL AND/OR STATE INCOME TAXES.
6. INSURANCE.
6.1 Key Man Insurance. The Company shall have the right to apply
for and take out, in the Company's own name or otherwise, at the Company's
expense, life, health, accident, or other insurance covering Employee, in any
amount the Company deems necessary to protect the Company's interest hereunder,
and Employee shall have no right, title or interest in or to any such insurance.
Employee shall assist the Company in obtaining such insurance by submitting to
usual and customary medical and other examinations and by signing such
applications, statements and other instruments as may be reasonably required by
any insurance company.
7. BUSINESS EXPENSES. During the Term, Employee shall be entitled to
receive reimbursement for all reasonable business expenses incurred by him (in
accordance with the policies and procedures from time to time adopted by the
Board of Directors of the Company for its senior executives and consultants) in
performing services hereunder, provided that Employee properly accounts
therefore in accordance with such policy and procedures and such expenses have
been specifically approved in advance. Moreover, Employee expressly acknowledges
and agrees that prior verbal approval must be obtained from the President of the
Company by Employee for expense greater than one hundred dollars ($100), and
prior written approval for expenses greater than three hundred dollars ($300).
8. CONFIDENTIALITY. Employee recognizes and acknowledges that the
Company's customer lists, proposals and other work product are confidential and
are the property of the Company. Employee further recognizes and acknowledges
that in order to enable the Company to perform services for its clients, those
clients may furnish to the Company confidential information concerning their
business affairs, property, methods of operation or other data; that the
goodwill
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afforded to the Company depends upon, among other things, the Company and its
employees keeping such services and information confidential. All of these
materials and information including that relating to the Company's work product
and the Company's clients, will be referred to below as "Proprietary
Information."
9. NON-DISCLOSURE. Employee agrees that, except as directed by the
Company, and in the ordinary course of the Company's business, Employee will not
at any time, whether during or after Employee's employment with the Company,
disclose to any person or use, directly or indirectly, for Employee's own
benefit or the benefit of others, any Proprietary Information, or permit any
person to examine or make copies of any documents which may contain or is
derived from Proprietary Information, whether prepared by Employee or otherwise
coming into Employee's possession or control. Employee agrees that the
provisions of this paragraph shall survive the termination of this Agreement and
Employee's employment by the Company.
10. POSSESSION. Employee agrees that upon request by the Company, and
in any event upon termination of Employee's employment, Employee shall then over
to the Company all documents, papers or other material in Employee's possession
or under Employee's control which may contain or be derived from Proprietary
Information, together with all documents, notes or Employee's work products
which are connected with or derived from Employee's services to the Company
shall be either returned to the Company.
11. OWNERSHIP. Employee hereby assigns and agrees to assign to the
Company or its subsidiaries or affiliates, as appropriate, its successors,
assigns or nominees, Employee's entire right, title and interest in any
developments, designs, patents, inventions and improvements, trade secrets,
trademarks, copyrightable subject matter or proprietary information which
Employee has made or conceived, or may make or conceive, either solely or
jointly with others, while providing services to the Company, or with the use of
the time, material or facilities of the Company or relating to any actual or
anticipated business, research, development, product, service or activity of the
Company known to Employee while employed at the Company, or suggested by or
resulting from any task assigned to Employee or work performed by Employee for
or on behalf of the Company, whether or not such work was performed prior to the
date of this Agreement.
12. NON-COMPETITION. Employee agrees that because of the confidential
and sensitive nature of the Proprietary Information and because the use of, or
even the appearance of the use of, the Proprietary Information in certain
circumstances may cause irreparable damage to the Company and its reputation, or
to clients of the Company, Employee shall not, until the expiration of one (1)
year after the date on which Employee's employment with the Company terminates
for any reason, engage, directly or indirectly, or through any corporation or
associates in any business, enterprise or employment which directly solicits
business, performs services or delivers goods that are competitive to those of
the Company to any customer or prospect of the Company. The Company and Employee
agree that this covenant is fair and reasonable; however, in the even that a
court should decline to enforce these provisions, Employee and the Company agree
that the provisions should be modified to restrict Employee's competition with
the Company to the maximum extent enforceable, but in no event will the
covenants be interpreted as more restrictive to Employee.
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13. INJUNCTIVE RELIEF. Employee acknowledges that disclosure of any
Proprietary Information by Employee par breach by Employee of any of the
covenants not to compete will give rise to irreparable injury to the Company, or
clients of the Company. Employee also agrees that this injury to the Company, or
clients of the Company, would be inadequately compensated in money damages
alone. Accordingly, the Company or, where appropriate the client of the Company,
may seek and obtain injunctive relief against the breach, or threatened breach,
of the disclosure of any Proprietary Information by Employee, or breach by
Employee of any of the covenants not to compete, in addition to any other legal
remedies which may be available. The Company further acknowledges that the
enforcement of a remedy hereunder by way of injunction would not prevent
Employee from earning a reasonable livelihood since Employee's experience and
capabilities would be such that in the event that Employee's employment with the
Company terminates for any reason, Employee will be able to obtain employment in
business activities which are not restricted by this Agreement.
14. NON-COMPETITION.
14.1 Definitions. For the purpose of this Section 14 and Section
15 hereof, the following terms shall have the meanings ascribed to them below:
(a) "Covenant Term" shall mean a period beginning on
the date hereof and ending on the date which is two
years after the date on which this Agreement, or
Employee's engagement hereunder, is terminated.
(b) "Covenant Territory" shall mean the United States
of America and its properties.
(c) "Business of the Company" shall mean the
development of information technology products or
services designed for use in a medical context.
14.2 Covenant. During the Covenant Term, Employee shall not,
without the prior written consent of the Company, directly or indirectly, (a)
own (except that Employee may own not more than one percent (1%) of the equity
securities or securities convertible into equity securities of any corporation
or other entity the securities of which are traded on a national stock exchange
or listed on the National Association of Securities Dealers Automated Quotation
System), manage, operate, join, control or participate in the ownership,
management, operation or control of, or be connected as a promoter, joint
venturer, agent, director, officer, Employee, partner, consultant or otherwise
with, any profit or non-profit, business or organization which directly or
indirectly, engages in the Business of the Company in the Covenant Territory or
which otherwise, directly or indirectly, competes with the Business of the
Company in the Covenant Territory.
14.3 Interpretation of Unenforceable Provision. The parties intend
for the provisions of this Section 14 to be construed, interpreted, and enforced
to the maximum extent permitted by
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law. The parties acknowledge and agree that they have both participated in the
preparation of this Agreement and it shall not be construed or interpreted
against either party on the basis that it was prepared by such party. In the
event that any provision of this Section 14, or part thereof, shall be
determined by any court of competent jurisdiction to be invalid, illegal, or
unenforceable in any respect for any reason, such provision shall be revised
and/or interpreted to make it enforceable to the maximum extent in all other
respects as to which it may be enforceable, all as determined by such court in
such action.
15. NON-SOLICITATION. Employee agrees that during the Covenant Term, he
will not, directly or indirectly, (a) induce any customer of the Company or its
successors to patronize any business similar to the Business of the Company; (b)
request or advise any customer (including, without limitation, distributors) or
supplier of the Company or its successors to withdraw, curtail or cancel such
customer's or supplier's business with the Company or its successors; (c) except
in the ordinary course of business, disclose to any other person or corporation
the name or addresses of any of the customers of the Company or its successors;
or (d) induce or encourage any Employee to terminate his relationship with the
Company.
16. TERMINATION.
16.1 Death. In the event of Employee's death ("Death") during the
term of his employment, any options granted to Employee which have not, by the
terms of the options, vested shall be deemed to have vested as of the date of
his death and shall thereafter be exercisable by Employee's beneficiary or
estate for the maximum period of time allowed for exercise thereof under the
terms of the option.
16.2 Disability.
(a) In the event Employee, by reason of physical or mental
incapacity, shall be disabled ("Disability") for a
period of at least six (6) consecutive months, the
Company shall have the option at any time thereafter to
terminate Employee's employment hereunder for
disability. Such termination will be effective thirty
(30) days after the Board gives written notice of such
termination to Employee, unless Employee shall have
returned to the performance of his duties prior to the
effective date of the notice. All obligations of the
Company hereunder shall cease upon the effectiveness of
such termination, provided that such termination shall
not affect or impair any rights Employee may have under
any policy of long-term disability insurance or benefits
then maintained on his behalf by the Company. Any
options granted to the Employee which have not, by the
terms of the options, vested shall be deemed to have
vested at the termination and shall thereafter be
exercisable by the Employee, his beneficiary,
conservator or estate, as applicable, for the maximum
period of time allowed for exercise thereof under the
terms of the option.
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(b) "Incapacity" as used herein shall mean the inability of
the Employee due to physical or mental illness, injury
or disease substantially to perform his normal duties as
Vice President. Employee's salary as provided for
hereunder shall continue to be paid during any period of
incapacity prior to and including the date on which
Employee's employment is terminated for disability.
16.2 By The Company For Cause.
(a) The Company shall have the right, before the expiration
of the term of this Agreement, to terminate this
Agreement and to discharge Employee for cause
(hereinafter "Cause"), and all compensation, including
unvested equity, to Employee shall cease to accrue upon
discharge of Employee for Cause. For the purposes of
this Agreement, the term "Cause" shall mean (i)
Employee's conviction of a felony; (ii) the alcoholism
or drug addiction of Employee; (iii) gross negligence or
willful misconduct of Employee in connection with his
duties hereunder; (iv) the determination by any
regulatory or judicial authority (including any
securities self-regulatory organization) that Employee
directly violated, before or after the date hereof, any
federal or state securities law, any rule or regulation
adopted hereunder; or (v) the continued and willful
failure by Employee to substantially and materially
perform his material duties hereunder.
(b) If the Company elects to terminate Employee employment
for Cause under Section 16.2(a) above, such termination
shall be effective fifteen (15) days after the Company
gives written notice of such termination to Employee. In
the event of a termination of Employee's employment for
Cause in accordance with the provisions of Section
16.2(a), the Company shall have no further obligation to
the Employee, except for the payment of all compensation
and other vested benefits which have accrued through the
date of such termination and not paid and any other
benefits to which he or his dependents may be entitled
by law.
16.3 By Employee for Reason. Employee shall have the right to
terminate his employment at any time for "good reason" (herein designated and
referred to as "Reason"). The term Reason shall mean (i) the failure to elect or
appoint, or re-elect or re-appoint Employee to, or removal or improperly
attempted removal of Employee from, his positions as Vice President or superior
positions with the Company, except in connection with the proper termination of
Employee's employment by reason of Cause, Death or Disability; (ii) a reduction
in Employee's overall compensation other than his discretionary bonus under
Section 4.2 above or an adverse
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change in the nature or scope of the authorities, powers, functions or duties
normally attached to the Employee's position with the Company; (iii) the
Company's failure or refusal to perform any obligations required to be performed
in accordance with this Agreement after a reasonable notice and an opportunity
to cure same.
16.4 Severance.
(a) In the event Employee's employment hereunder shall be
terminated by the Employee for Reason or by the Company
for other than Cause, Death or Disability: (1) the
Employee shall thereupon receive as severance pay in a
lump sum the amount of salary and bonuses which the
Employee would have received for the remaining term of
this Agreement had there been no termination, provided
however, that in no event shall such lump sum payment be
less than one year's salary and bonus; and (2) the
Employee's (and his dependents') participation in any
and all life, disability, medical and dental insurance
plans shall be continued, or equivalent benefits
provided to him or them by the Company, at no cost to
him or them, for a period of two years from the
termination; and (3) any options granted to Employee
which have not, by the terms of the options, vested
shall be deemed to have vested at the termination, and
shall thereafter be exercisable for the maximum period
of time allowed for exercise thereof under the terms of
the option.
(b) An election by Employee to terminate his employment
under the provisions of this Section 16.4 shall not be
deemed a voluntary termination of employment of Employee
for the purpose of interrupting the provisions of any of
the Company's employee benefit plans, programs or
policies.
16.5 Resignation. In the event Employee resigns without Reason
prior to the expiration hereof, he shall receive any unpaid fixed salary through
such resignation date and such benefits to which he is entitled by law.
16.6 Extension of Benefits. Any extension of benefits following
the termination of employment provided for herein shall be deemed to be in
addition to, and not in lieu of, any period for the continuation of benefits
provided for by law, either at the Company's, Employee or his dependents'
expense.
16.7 Payment in Change in Control Event. In the event of a Change
in Control, as hereinafter defined, the Company shall, prior to the thirtieth
(30th) day after a Change in Control:
(i) grant and deliver to the Employee an option (the
"Severance Option") to purchase from the Company thirty
thousand (30,000) shares of the
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Company's Common Stock, $0.01 par value per share,
exercisable at a price equal to the closing bid price of
the Company's shares of Common Stock (as reported by
Bloomberg Financial Markets on the OTC Bulletin Board or
such other United States stock exchange or public
trading market which is at the time the principal
exchange for trading of the Common Stock) on the date of
grant. The Severance Options shall be granted and
treated in the same manner as the Options, and shall
similarly be subject to the terms set forth in Section 5
hereto.
17. GENERAL PROVISIONS.
17.1 Notices. All notices required to be given under the terms of
this Agreement shall be in writing and shall be deemed to have been duly given
only if delivered to the addressee in person or mailed by certified mail, return
receipt requested, to the address as included in the Company's records or to any
such other address as the party to receive the notice shall advise by due notice
given in accordance with this paragraph. Any party hereto may change its or his
address for the purpose of receiving notices, demands and other communications
as herein provided, by a written notice given in the manner aforesaid to the
other party hereto. Copies of all correspondence should additionally be sent to
the following:
If to the Company:
Zenascent, Inc.
1 World Trade Center, Suite 7967
New York, New York 10048
with a copy to:
Gregory Sichenzia, Esq.
Sichenzia, Ross & Friedman LLP
135 West 50th Street, 20th Floor
New York, New York 10020
17.2 Benefit of Agreement and Assignment. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective executors, administrators, successors and assigns; provided, however,
that Employee may not assign any of his rights or duties hereunder except upon
the prior written consent of the Board of Directors of the Company.
17.3 Applicable Law. This Agreement is made in and is to be
governed by and construed under the laws of the State of New York.
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17.4 Captions. The captions appearing at the commencement of the
sections hereof are descriptive only and for convenience of reference only and
are not intended to be part of or to effect the meaning or interpretation of
this Agreement.
17.5 Severability. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
17.6 Entire Agreement. This Agreement contains the entire
Agreement of the parties, and supersedes any and all other Agreements, either
oral or in writing, between the parties hereto with respect to the subject
matter hereof. Each party to this Agreement acknowledges that, other than the
Confidentiality Agreement, no representations, inducements, promises, or
Agreements, oral or otherwise, have been made by either party, or anyone acting
on behalf of either party, which are not embodied herein, and that no other
Agreement, statement or promise not contained in this Agreement shall be valid
or binding.
17.7 Amendments. This Agreement may be modified or amended only by
an Agreement in writing signed by the Company and Employee.
17.8 Waiver. No waiver of any provision hereof shall be valid
unless made in writing and signed by the party making the waiver. No waiver of
any provision of this Agreement shall constitute a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver.
17.9 Representations and Warranties. Each party hereto represents
and warrants that it or he has the power and authority to execute and deliver
this Agreement and to perform its or his obligations hereunder.
17.10 Compliance with Laws and Policies. Employee agrees that he
will at all times comply with all applicable laws and all current and future
lawful policies of the Company, not inconsistent with the intent of this
agreement.
17.11 Arbitration. Any dispute or controversy arising under or in
connection with this Agreement, other than matters pertaining to injunctive
relief, including, without limitation, temporary restraining orders, preliminary
injunctions and permanent injunctions, shall, upon the written demand of either
party served upon the other party, be submitted to arbitration. Such arbitration
shall be held in the City of New York, New York, and conducted in accordance
with the Rules of the American Arbitration Association.
17.12 Representation. Each of the parties hereto represents that
each has read and fully understands each of the provisions as contained herein,
and has been afforded the opportunity
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to review same with his attorney of choice; and further that each of the parties
hereto represents that each and every one of the provisions contained in this
Agreement is fair and not unconscionable to either party.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first written above.
ZENASCENT, INC. EMPLOYEE
By:
--------------------------------- ---------------------------------
Name: Adam Goldberg
Title:
Attest:
-----------------------------
Name:
Title:
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