[Exhibit 10.2.9]
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement (" Agreement") is entered into as
of May 23, 2003, between Xxxxxxx Xxxxxxxxx ("Employee"), 0000
Xxxx Xxxxxx Xxxx, Xxxxxxx Xxx, Xxxxxxxxxx 00000, and Film and
Music Entertainment. Inc. ("Company"), 0000 Xxxxxxx Xxxx Xxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, XXX, on the following
terms and conditions:
1. Engagement of Services. Company wishes to retain the
-----------------------
services of Employee in connection with certain matters relating
to Company's business, as more fully described in Section 3
hereof, and Employee is willing to provide such services.
2. Term. The term of this Agreement (the "Term") shall
----
commence as of the date set forth above and continue until
completion of Employee's services hereunder, or upon thirty
days' prior written notice from either party.
3. Services To Be Provided. Employee agrees that Employee
-----------------------
will, on a non-exclusive basis and consistent with Employee's
other professional commitments render to Company such Employment
services as Vice President Creative Services and a Member of the
Board of Directors of Company. Employee further agrees at all
times not to engage in conduct which will disparage the
reputation of Company and/or Company's technology, products and
services or which might tend to adversely affect the market
price of Company's common stock. Employee shall not be required
at any time to render services that would materially interfere
with Employee's prior professional obligations.
4. Consideration. Provided Employee shall faithfully and
-------------
completely perform the services required hereunder and otherwise
fulfill his obligations under this Agreement, Company shall pay
Employee, as full compensation for the services requested of
Employee hereunder for all work performed at the rate of
Dollar ($ .00) per year.
5. Expenses
--------
(a) In General. Employee may incur various costs and
----------
expenses in performing his services under this Agreement.
Company agrees to pay for only those reasonable costs and
expenses by prior written agreement of the Company.
(b) Out of Town Travel. Company agrees to pay
---------------------
transportation, meals, lodging and all other costs of any
necessary out-of-town travel by Employee (with air travel to be
coach class for Employee). Prior written approval by Company
shall be required for all air travel in connection with this
Agreement.
Employee shall invoice Company promptly for the foregoing
expenses. Such invoices shall be payable within 30 days of
receipt.
6. Confidentiality. In connection with Employee's services
---------------
hereunder, Company will be disclosing to Employee certain
confidential information all of which Company considers to be
secret or proprietary ("Proprietary Information"), and Employee
agrees, during the Term and forever after the expiration or
termination of this Agreement, to hold the Proprietary
Information in confidence, and not to disclose such Proprietary
Information to third parties (except pursuant to judicial
process) or to use such Proprietary Information for Employee's
own account, without Company's prior written authorization.
Proprietary Information shall be used by Employee only in
connection with services rendered pursuant to this Agreement
Proprietary information shall
???
Agreement by Employee, or (b) is already in the possession of
Employee, as evidenced by written documents, prior to the
disclosure thereof by Company, or ( c ) is rightfully received
from a third entity having no obligation to Company and without
violation of this Agreement by Employee. Employee shall not
issue any publicity or statements to the press or third parties
regarding Company, or its technology, products or services,
without Company's prior written consent in each instance.
7. Company's Dutys. Company agrees to cooperate with
---------------
Employee, to abide by this Agreement, and to pay Employee's bills
on time.
8. Warranties. Employee warrants that Employee is under no
----------
obligation to any third party that would prevent Employee from
rendering the services contemplated by this Agreement, and that
Employee is free to enter into this Agreement. Company warrants
that Company is under no obligation to any third party that
would prevent Company from performing its obligations under this
Agreement and that Company is free to enter into this Agreement.
9. Indemnity. Employee will indemnify and hold harmless
---------
Company from any and a1l liabilities, costs, and expenses
(including attorney's fees) incurred by reason of any breach of
this Agreement by Employee. The Company will indemnify and hold
harmless Employee from any and all liabilities, costs, and
expenses (including attorney's fees) incurred by reason of any
breach of this Agreement by Company.
10. No Injunctive Relief. In the event of any breach or an
--------------------
alleged breach of this Agreement by Company, it is acknowledged
that Employee's rights and remedies shall be strictly limited
to the right of Employee to recover damages in an action at law,
and in no event shall Employee be entitled to rescind this
Agreement, revoke any of the rights herein granted or to
equitable or injunctive relief, including without limitation
specific performance.
11. Notices. Any notice required or permitted to be given
-------
hereunder shall be in writing and shall be personally
delivered, including by messenger or courier (e.g., delivery by
Federal Express or other similarly recognized air express
company), or by certified or registered mail, return receipt
requested, postage prepaid, to Employee at the address
previously inscribed or to Company at Pervasys, Inc., 0000
Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
XXX, with a copy to Alexander, Xxx, Xxxxxxxx & Xxxxxx, LLP,
Attention: Xxxxxx X. Nan, 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, XXX. Any party may change its
address for notices hereunder by giving written notice in the
manner provided for herein.
12. Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties. No modification or amendment of
this Agreement shall be binding unless executed in writing by all
the parties.
13. Assignability. This Agreement is not assignable by
-------------
either party without the prior written consent of the other.
14. Arbitration. Any dispute, controversy or claim arising
-----------
out of or relating to the enforcement, interpretation or alleged
breach of this Agreement, or the services rendered pursuant to
this Agreement, shall be submitted to and resolved by binding
arbitration in Los Angeles, California in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the
arbitrator may be entered in and enforceable by any court having
jurisdiction.
(Balance of page intentionally left blank)
2
15. Choice of Law. This Agreement shall be construed and
-------------
enforced in accordance with the laws of the State of California,
United States of America.
In Witness Whereof, tile undersigned have executed this
Agreement as of the date first set forth above.
Xxxxxxx Xxxxxxxxx
("Employee")
By: /s/Xxxxxxx Xxxxxxxxx
------------------------------
("Company")
Film and Music Entertainment, Inc.
/s/Xxxx Xxxxx
----------------------------------
Its: Employer
3
