EXHIBIT 10.12
EXECUTIVE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of April 2nd, 2004 (the
"Effective Date"), between Video Without Boundaries, Inc. a Florida corporation
(the "Company"), and Xxxxx X. Xxxxx (the "Executive").
W I T N E S S E T H
WHEREAS, the Company desires to employ the Executive as its Chief Technology
Officer ("CTO");
WHEREAS, the Company and the Executive desire to enter into the Agreement as to
the terms of his employment by the Company;
NOW THEREFORE, in consideration of the foregoing, of the mutual promises
contained herein and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. POSITION/DUTIES.
(a) During the Employment Term (as defined in Section 2 below), the
Executive shall serve as CTO of the Company. In this capacity the
Executive shall have such duties, authorities, and responsibilities
commensurate with the duties, authorities, and responsibilities of
persons in similar capacities in similarly sized companies, related
to the management of set-top box product design, production, and
product line development and other duties and responsibilities as
mutually agreed as per semi-annual Executive performance and
management objectives reviews. For the avoidance of doubt, the CTO
position does not include selling or account management or any
sales commission-based duties or responsibilities. The Executive
shall report exclusively to the Chief Executive Officer ("CEO") of
the Company.
(b) During the Employment Term, the Executive shall only serve on the
board of directors or advisory boards of other companies or
educational organizations with prior written approval by the
Company.
2. EMPLOYMENT TERM. The Executive's term of employment under this
Agreement (such term of employment, as it may be extended or
terminated, is herein referred to as the "Employment Term") shall be
for a term commencing on the Effective Date and, unless terminated
earlier as provided in Section 7 hereof, ending three years from the
Effective Date (the "Original Employment Term"), provided that the
Employment Term shall be automatically extended, subject to earlier
termination as provided in Section 7 hereof, for successive additional
one (1) year periods (the "Additional Term(s)"), unless, at least sixty
(60) days prior to the end of the Original Employment Term or the then
Additional Term, the Company or the Executive has notified the other in
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writing that the Employment Term shall terminate at the end of the then
current term.
3. BASE SALARY. The Company agrees to pay the Executive a base salary (the
"Base Salary") at an annual rate of not less than US $180,000, payable
in accordance with the regular payroll practices of the Company, but
not less frequently than twice monthly. The Executive's Base Salary
shall be subject to annual review by the CEO and the Company's Board of
Directors (or a committee thereof) and may be increased from time to
time by the CEO or the Board and decreased only by written agreement by
the Executive. No increase to Base Salary shall be used to offset or
otherwise reduce any obligations of the Company to the Executive
hereunder or otherwise. The base salary as determined herein from time
to time shall constitute "Base Salary" for purposes of this Agreement.
Any calculation to be made under this Agreement with respect to Base
Salary shall be made using the then current Base Salary in effect at
the time of the event for which such calculation is made.
4. BONUSES.
(a) SIGN-ON BONUS. Upon execution of this Agreement, the Company shall
pay the Executive a one-time non-refundable lump sum cash payment
in the amount of US $50,000 (the "Sign-On Bonus").
(b) MINIMUM ANNUAL BONUS. The Executive shall receive a minimum cash
bonus payable within thirty (30) days of the end of each fiscal
year ending each December 31 (the "Bonus Date"), equal to the
lesser of one hundred percent (100%) of Base Salary or fifteen
percent (15%) of Gross Profit. "Gross Profit" shall be the gross
profit of the Company mutually agreed or determined in accordance
with generally accepted accounting practices by a mutually selected
independent accounting firm at the Company's expense. The
determination of the Gross Profit made by the independent
accounting firm shall be final and binding upon Executive and
Company.
(c) ANNUAL BONUS. In addition to the MINIMUM ANNUAL BONUS, the
Executive shall be eligible to participate in the Company's bonus
and other incentive compensation plans and programs for the
Company's senior executives at a level commensurate with his
position. The Executive shall have the opportunity to earn an
additional annual target bonus measured against objective financial
criteria to be determined by the Company.
5. EQUITY AWARDS.
(a) SIGN-ON WARRANT GRANT. The Company shall award the Executive as of
the Effective Date five-year warrants to purchase 100,000 Company
Rule-144 shares (the "Common Stock"). The exercise price shall be
equal to the current Market bid price in US dollars.
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(b) SIGN-ON STOCK GRANT. The Company shall issue the Executive 250,000
Company Rule-144 shares of stock issued in his name. One hundred
thousand (100,000) shares shall be due, issued, vested, and
delivered to the Executive upon execution of this agreement. The
remaining one hundred and fifty thousand (150,000) shares shall be
vested and delivered in fifty thousand (50,000) share lots on each
the 180th, 270th, and 360th day following execution of this
agreement. All deliveries of shares will be via a common courier or
in person.
(c) ANNUAL WARRANT GRANT. The Company shall award the Executive as of
each anniversary of the Effective Date (the "Anniversary"),
five-year warrants to purchase at least 100,000 Company Rule-144
shares (the "Annual Warrants"). The Company shall set the exercise
price within the 30 days prior to each Anniversary.
(d) DISCRETIONARY GRANTS. In addition to the equity awards contemplated
under this Section 5, at the sole discretion of the Company, the
Executive shall be eligible for additional annual grants of stock
options and/or warrants and other equity awards.
(e) ACCELERATION EVENTS. If (i) the Executive's employment by the
Company is terminated by the Company other than for Cause, Death,
or Disability or by the Executive for Good Reason or (ii) Change in
Control (as defined in Exhibit A hereto) occurs, all then
outstanding unvested and undelivered equity awards shall be fully
vested and delivered.
6. EMPLOYEE BENEFITS.
(a) BENEFIT PLANS.
(i) The Executive shall be entitled to participate in all employee
benefit plans of the Company including, but not limited to, equity,
pension, thrift, profit sharing, medical coverage, education, or
other retirement or welfare benefits that the Company has adopted
or may adopt, maintain or contribute to for the benefit of its
senior executives at a level commensurate with his positions
subject to satisfying the applicable eligibility requirements. Such
benefits, in the aggregate, shall be no less favorable than the
level of benefits in effect on the Effective Date; provided,
however, that in the event there is a reduction of employee
benefits applicable to senior executives generally, nothing herein
shall preclude the Company's ability to reduce the Executive's
benefits consistent with such reduction.
(ii) Without limiting the generality of the foregoing, during the
Employment Term, the Company shall either (A) provide for the
Executive and his family, (B) pay the Executive quarterly in
advance for, or (C) pay the invoices for (at the Executive's
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discretion) health insurance, dental insurance, vision insurance,
term life insurance, accidental death and dismemberment insurance,
and short-term and long-term disability insurance covering the
Executive and his family. The policies for such insurance shall
provide coverage parameters, such as but not limited to
co-payments, deductibles, and limits, equivalent to the 2004 United
Healthcare policy from the Executive's prior employer. Without
limiting the Executive's alternatives for the insurance coverages
provided for in this Section 6(a)(ii) the Executive's COBRA plan is
hereby agreed to be one example of such insurance coverages. In the
case of (B) or (C), annual payment of premiums is capped at
fourteen thousand five hundred US dollars (US $14,500).
(b) SUPPLEMENTAL RETIREMENT BENEFIT.
The Company shall match the Executive's contributions up to the
maximum percentage of the Base Salary identified by the federal
government for 401K or similar plan contributions ("Company Match")
once the company establishes a qualified retirement fund program
and according to the rules of that program.
(c) VACATIONS. The Executive shall be entitled to an annual paid
vacation in accordance with the Company's policy applicable to
senior executives, but in no event less than four weeks per year
(as prorated for partial years), which vacation may be taken at
such times as the Executive elects with due regard to the needs of
the Company. The Executive shall accrue vacation time year-to-year
with a cap of twelve (12) weeks.
(d) PERQUISITES. The Company shall provide to the Executive, at the
Company's cost, all perquisites which other senior executives of
the Company are generally entitled to receive.
(e) BUSINESS AND ENTERTAINMENT EXPENSES.
(i) The Company shall provide a Company credit card and
discretionary expense account to the Executive for the purposes of
Business and Entertainment Expenses. The limits of said credit card
and account shall be set and revised by the Company.
(ii) Upon presentation of appropriate documentation, the Executive
shall be reimbursed in accordance with the Company's expense
reimbursement policy for all reasonable and necessary business and
entertainment expenses incurred in connection with the performance
of his duties hereunder.
(f) TRAVEL. All expenses related to business travel shall be paid by
the Company. The Executive shall have access to coach class
commercial air travel for flights under three (3) hours and
business class commercial air travel for flights greater than three
(3) hours, all on main tier airlines (such as but not limited to
USAir, United, Continental, Delta). All frequent flyer miles earned
while traveling for the Company are the Executive's for use at his
discretion.
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(g) LOCATION AND RELOCATION.
(i) The Executive's principal place of employment shall be at the
Company's principal headquarters in Pompano Beach, Florida.
(ii) In the event the Company and the Executive mutually agree to
relocate the Executive's principal place of employment to a new
principal Company headquarters location, the Executive will
relocate to the vicinity of the Company's new principal
headquarters within a time frame mutually agreed upon between the
Executive and the Company (the "Relocation Period"). The Executive
shall be entitled to relocation benefits in accordance with the
Company's relocation policy and such additions thereto as mutually
agreed to by the Executive and the Company, including, but not
limited to, reimbursement for all costs associated with moving the
Executive and his family, possessions, and vehicles, and any costs
and commissions associated with the sale of the Executive's
residence and purchase of a new residence. In addition, the Company
shall pay for or reimburse the Executive for the reasonable cost of
travel between the Executive's current residence and the Company's
new principal headquarters and, prior to the Executive's
relocation, the Company shall provide suitable temporary housing
for the Executive's use when he is at the Company's new principal
headquarters plus living expenses, as mutually agreed to by the
Executive and the Company. The Company shall gross up for tax
purposes any deemed income arising pursuant to the payment or
benefits provided under this Section 6(g)(ii), so that the economic
benefit is the same to the Executive as if such payment or benefits
were provided on a non-taxable basis to the Executive.
7. TERMINATION. The Executive's employment and the Employment Term shall
terminate on the first of the following to occur:
(a) DISABILITY. Upon written notice by the Company to the Executive of
termination due to Disability, while the Executive remains
Disabled. For purposes of this Agreement, "Disability" shall be
defined as the inability of the Executive to have performed his
material duties hereunder due to a physical or mental injury,
infirmity or incapacity for 180 days (including weekends and
holidays) in any 365-day period. An independent physician mutually
selected by the Company and the Executive shall determine the
existence or nonexistence of a Disability.
(b) DEATH. Automatically on the date of death of the Executive.
(c) CAUSE. Immediately upon written notice by the Company to the
Executive of a termination for Cause. "Cause" shall mean:
(i) The Executive shall have been indicted for a felony other than
one based on Limited Vicarious Liability, or
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(ii) The termination is evidenced by a resolution adopted in good
faith by at least two-thirds of, if a Board is in place, the
members of the Board, else if no Board is in place, a committee
formed by at least three of the Company's executives, concluding
that Executive intentionally and continually failed substantially
to perform his reasonably assigned duties with the Company (other
than a failure resulting from Executive's incapacity due to
physical or mental illness or from the assignment to Executive of
duties that would constitute Good Reason), which failure has
continued for a period of at least 30 days after a written notice
of demand for substantial performance, signed by the CEO, has been
delivered to Executive specifying the manner in which Executive has
failed substantially to perform
(iii) Notwithstanding anything in the foregoing to the contrary, if
the Executive has been terminated ostensibly for Cause because he
has been indicted for a felony (other than one involving Limited
Vicarious Liability), and he is not convicted of, or does not plead
guilty or nolo contendere to, such felony or a lesser offense
(based on the same operative facts), such termination shall be
deemed to be a termination without Cause as of the date of the
termination; provided, however, that, in the event that the
Executive has been terminated ostensibly for Cause because he has
been indicted for a felony (other than one involving Limited
Vicarious Liability)
(A) Undelivered Rule-144 stock shares shall only be
forfeited in the event that the Executive is convicted of or
pleads guilty or nolo contendere to a felony or a lesser
offense and any vesting or distribution shall be suspended
until a final determination in such proceeding is reached;
(B) Any cash payments shall be paid after a final
determination in such proceeding is reached; and
(C) The Company will pay the Executive an amount equal to
the value of health and welfare benefits that would
otherwise been provided to the Executive as a result of the
termination, if any, after a final determination in such
proceeding is reached.
(iv) For purposes of the foregoing, the term Limited Vicarious
Liability shall mean any liability which is based on acts of the
Company for which Executive is responsible solely as a result of
his office(s) with the Company; provided that
(A) he was not directly involved in such acts and either had
no prior knowledge of such intended actions or, upon
obtaining such knowledge, promptly acted reasonably and in
good faith to attempt to prevent the acts causing such
liability or;
(B) after consulting with the Company's counsel, he
reasonably believed that no law was being violated by such
acts.
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(d) WITHOUT CAUSE. Upon fifteen-days (15) written notice by the Company
to the Executive of an involuntary termination without Cause, other
than for death or Disability.
(e) GOOD REASON. Upon written notice by the Executive to the Company of
a termination for Good Reason, unless such events are corrected in
all material respects by the Company within thirty (30) days
following written notification by the Executive to the Company that
he intends to terminate his employment hereunder for one of the
reasons set forth below. "Good Reason" shall mean, without the
express written consent of the Executive, the occurrence of any of
the following events:
(i) assignment to the Executive of any duties inconsistent in any
material respect with the Executive's position (including titles
and reporting relationships), authority, duties or responsibilities
as contemplated by this Agreement, or any other action by the
Company which results in a significant diminution in such position,
authority, duties or responsibilities;
(ii) any failure by the Company to comply with any of the material
provisions regarding Executive's Base Salary, bonus, annual equity
incentive, benefits and perquisites, retirement benefit,
relocation, and other benefits and amounts payable to Executive
under this Agreement;
(iii) the Executive being required to relocate to a principal place
of employment more than thirty (30) miles from the Company's
principal headquarters in Pompano Beach, Florida;
(iv) the delivery by the Company of a notice of non-renewal
pursuant to Section 2 hereof;
(v) any breach of the Company's representations set forth in
Section 21 hereof which has a material adverse impact on the
Company; or
(vi) any termination by the Executive during the 30-day period
immediately following the first anniversary of the date of any
Change in Control.
(f) WITHOUT GOOD REASON. Upon fifteen (15) business days' prior written
notice by the Executive to the Company of the Executive's voluntary
termination of employment without Good Reason (which the Company
may, in its sole discretion, make effective earlier than any notice
date).
8. CONSEQUENCES OF TERMINATION. Upon termination as per Section 7 above
the following amounts and benefits shall be due and paid to the
Executive.
(a) DISABILITY. Upon such termination, the Company shall pay or provide
the Executive:
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(i) any unpaid Base Salary through the date of termination and any
accrued vacation;
(ii) any unpaid bonus earned with respect to any fiscal year ending
on or preceding the date of termination;
(iii) reimbursement for any unreimbursed expenses incurred through
the date of termination; and
(iv) all other payments, benefits or fringe benefits to which the
Executive may be entitled under the terms of any applicable
compensation arrangement or benefit, equity or fringe benefit plan
or program or grant or this Agreement (sections (i) through (iv)
are collectively, "Accrued Amounts").
(b) DEATH. In the event the Employment Term ends on account of the
Executive's death, the Executive's estate shall be entitled to any
Accrued Amounts.
(c) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. If the Executive's
employment should be terminated (i) by the Company for Cause, or
(ii) by the Executive without Good Reason, the Company shall pay to
the Executive any Accrued Amounts.
(d) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If the Executive's
employment by the Company is terminated by the Company other than
for Cause (other than a termination for Disability) or by the
Executive for Good Reason, the Company shall pay or provide the
Executive with:
(i) Accrued Amounts;
(ii) a pro-rata portion of the Executive's bonus for the
performance year in which the Executive's termination occurs by the
Bonus Date (determined by multiplying the amount the Executive
would have received had employment continued through the end of the
performance year by a fraction, the numerator of which is the
number of days during the performance year of termination that the
Executive is employed by the Company and the denominator of which
is 365);
(iii) a lump sum in cash in an amount equal to eighteen (18) months
of the then current Base Salary ("Severance Pay");
(iv) a lump sum in cash in an amount equal to eighteen (18) months
premiums for the Benefits in Section 6(ii).
(e) NON-COMPETE.
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(i) In the event the Executive is paid the Severance Pay in full as
defined in Section 8, during the nine (9) month period thereafter,
the Executive will not directly or indirectly (as an employee,
director, officer, consultant, manager, independent contractor, or
advisor) engage in competition with, or own any interest in,
perform any services for, participate in or be connected with the
division or business unit of any business or organization which
engages in direct competition with the Company as defined in
Section 8(e)(ii) below; provided, however, that the provisions of
this Section shall not be deemed to prohibit the Employee's (A)
ownership of not more than two percent (2%) of the total shares of
all classes of stock outstanding of any publicly held company, or
(B) ownership, whether through direct or indirect stock holdings or
otherwise, of one percent (1%) or less of any other business.
(ii) For the purposes of this Section 8(e) the division or business
unit of a business or organization shall be deemed to be engaging
in direct competition with the Company if such division or business
unit is engaged in the manufacture of PC-television convergence
devices. The parties agree that the intent of Section 8 is to
prohibit the Executive from directly competing against the Company.
As a result, the parties agree that the Company or the Executive
may request a revision of Section 8(e)(ii) on an annual basis to
ensure that the definition accurately reflects the business of the
company. Upon request of either party, the definition may be
revised annually. However, as stated in Section 19, any revision to
the definition, and thus, any amendment or supplement to this
agreement, must be in writing and signed by the Executive and such
officer or director as may be designated by the Company.
9. CONFIDENTIALITY, NONSOLICITATION, NONDISPARAGMENT, REFORMATION,
SURVIVAL OF PROVISIONS, INVENTIONS
(a) CONFIDENTIALITY. The Executive agrees that he shall not, directly
or indirectly, use, make available, sell, disclose or otherwise
communicate to any person, other than in the course of the
Executive's assigned duties and for the benefit of the Company,
either during the period of the Executive's employment or at any
time thereafter, any nonpublic, proprietary or confidential
information, knowledge or data relating to the Company, any of its
subsidiaries, affiliated companies or businesses, which shall have
been obtained by the Executive during the Executive's employment by
the Company. The foregoing shall not apply to information that
(i) was known to the public prior to its disclosure to the
Executive;
(ii) becomes known to the public subsequent to disclosure to the
Executive through no wrongful act of the Executive or any
representative of the Executive; or
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(iii) the Executive is required to disclose by applicable law,
regulation or legal process (provided that the Executive provides
the Company with prior notice of the contemplated disclosure and
reasonably cooperates with the Company at its expense in seeking a
protective order or other appropriate protection of such
information). Notwithstanding clauses (i) and (ii) of the preceding
sentence, the Executive's obligation to maintain such disclosed
information in confidence shall not terminate where only portions
of the information are in the public domain.
(b) NONDISPARAGMENT. Each of the Executive and the Company agrees not
to make any public statements that disparage the other party, or in
the case of the Company, its respective affiliates, employees,
officers, directors, products or services. Notwithstanding the
foregoing, statements made in the course of sworn testimony in
administrative, judicial or arbitral proceedings (including,
without limitation, depositions in connection with such
proceedings) shall not be subject to this Section 9 (b).
(c) REFORMATION. If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 9 is
excessive in duration or scope or is unreasonable or unenforceable
under the laws of that state, it is the intention of the parties
that such restriction may be modified or amended by the court to
render it enforceable to the maximum extent permitted by the law of
that state.
(d) SURVIVAL OF PROVISIONS. The obligations contained in this Section 9
shall survive the termination or expiration of the Executive's
employment with the Company and shall be fully enforceable
thereafter.
(e) INVENTIONS AND OWNERSHIP.
(i) Programs, inventions, innovations or improvements
("Inventions") made, developed or created by the Executive during
the course of and related to fulfilling his duties during the term
of this employment and which may be directly useful in, or relate
to, the business of the Company shall be promptly and fully
disclosed by the Executive to the Company and, shall be the
Company's exclusive property. Upon request, the Employee shall
promptly deliver to an appropriate representative of the Company as
designated by the Board all software, programs, code,
specifications, proposals, papers, drawings, models, data and other
material relating to any inventions made, developed or created by
the Employee as aforesaid. The Employee shall, at the request of
the Company and without any payment therefore, execute any
documents necessary or advisable in the opinion of the Company's
counsel to direct issuance of patents or copyrights to the Company
with respect to such inventions as are to be the Company's
exclusive property or vest in the Company title to such inventions.
The expense of securing any such patent or copyright shall be borne
by the Company. The provisions of this Section 9(e) shall survive
the termination of this Agreement.
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(ii) The Company acknowledges that the Executive has a history of
invention including but not limited to personally funded granted
patents and that the Executive will continue to develop his own
existing and new inventions and patents. No transfer or assignment
of any rights is made or implied herein to any such existing
patents or new inventions or patents developed outside the course
of, and not related to, fulfilling the Executive's duties.
10. ATTORNEY'S FEES.
In the event of any dispute arising out of or under this Agreement or
the Executive's employment with the Company, if the arbitrator or court
of competent jurisdiction, whichever is hearing the matter, determines
that the Executive has prevailed on the issues in the arbitration or
court proceeding, as the case may be, the Company shall, upon
presentment of appropriate documentation, at the Executive's election,
pay or reimburse the Executive for all reasonable legal and other
professional fees, costs of arbitration and other reasonable expenses
incurred in connection therewith by the Executive.
11. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto. Except as
provided in Section 11(b) below, no party may assign or delegate
any rights or obligations hereunder without first obtaining the
written consent of the other party hereto.
(b) The Company may assign this Agreement to any successor to all or
substantially all of the business and/or assets of the Company
provided the Company shall require such successor to expressly
assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform it
if no such succession had taken place.
12. NOTICE. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given (i) on the date of delivery if
delivered by hand, (ii) on the date of transmission, if delivered by
confirmed facsimile, (iii) on the first business day following the date
of deposit if delivered by guaranteed overnight delivery service, or
(iv) on the fourth business day following the date delivered or mailed
by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
Xxxxx X. Xxxxx
000 XX 0xx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
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If to the Company:
VWB
Xxxxxxx Xxxxxxx
President
00 XX 00xx Xxx., Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change
of address shall be effective only upon receipt.
13. SECTION HEADINGS; INCONSISTENCY. The section headings used in this
Agreement are included solely for convenience and shall not affect, or
be used in connection with, the interpretation of this Agreement. In
the event of any inconsistency between the terms of this Agreement and
any form, award, plan or policy of the Company, the terms of this
Agreement shall control.
14. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity of unenforceability of any provision shall
not affect the validity or enforceability of the other provisions
hereof.
15. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which
together will constitute one and the same instruments.
16. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement, other than damages for breach of Section 9, shall
be settled exclusively by arbitration, conducted before a single
independent arbitrator in Broward County Florida mutually selected by
the Company and the Executive. The arbitrator will have the authority
to permit discovery and to follow the procedures that he or she
determines to be appropriate. The arbitrator will have no power to
award consequential (including lost profits), punitive or exemplary
damages. The decision of the arbitrator will be final and binding upon
the parties hereto. Judgment may be entered on the arbitrator's award
in any court having jurisdiction. Subject to Section 10, each party
shall bear its own legal fees and costs and equally divide the forum
fees and cost of the arbitrator.
17. INDEMNIFICATION. The Company hereby agrees to indemnify the Executive
and hold him harmless to the fullest extent permitted by law and under
the by-laws of the company against and in respect to any and all
actions, suits, proceedings, claims, demands, judgments, costs,
expenses (including reasonable attorney's fees), losses, and damages
resulting from the Executive's good faith performance of his duties and
obligations with the Company. The Company shall cause the entities
listed on Exhibit C hereto to execute indemnity commitments in the form
of Exhibit D hereto.
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18. LIABILITY INSURANCE. Should the Company appoint the Executive as a
member of its Board of Directors or as an Officer of the Corporation
the Company shall cover the Executive under directors and officers
liability insurance both during and, while potential liability exists,
after the term of this Agreement for the greater of the same amount and
the same extent as the Company covers its other officers and directors
and one-million dollars ($1,000,000).
19. MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed
to in writing and signed by the Executive and such officer or director
as may be designated by the Company. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent
time. This Agreement together with all exhibits hereto sets forth the
entire agreement of the parties hereto in respect of the subject matter
contained herein. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been
made by either party which are not expressly set forth in this
Agreement. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of Florida
without regard to its conflicts of law principles.
20. FULL SETTLEMENT. Except as set forth in this Agreement, the Company's
obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by
any circumstances, including without limitation, set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company
may have against the Executive or others, except to the extent any
amounts are due the Company or its subsidiaries or affiliates pursuant
to a judgment against the Executive; provided, however, that
notwithstanding the foregoing, the Company shall have the right to
offset any payment provided for in this Agreement or any accrued
obligation or other payments (if any) by any outstanding portion of the
Sign-On Bonus which is required to be returned to the Company pursuant
to Section 4(a) that has not otherwise been timely returned. In no
event shall the Executive be obliged to seek other employment or take
any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement, nor shall the
amount of any payment hereunder be reduced by any compensation earned
by the Executive as a result of employment by another employer.
21. REPRESENTATIONS.
(a) The Company represents and warrants that, as of the Effective Date,
all financial statements for each quarter and fiscal year since
Company inception fairly present in all material respects the
financial position of the Company in conformity with Generally
Accepted Accounting Principles as of the applicable reporting dates
except as reported in the notes to those financial statements.
Company Initials ______ Page 13 of 14 Executive Initials ______
(b) The Executive represents and warrants to the Company that he has the
legal right to enter into this Agreement and to perform all of the
obligations on his part to be performed hereunder in accordance with
its terms and that he is not a party to any agreement or
understanding, written or oral, which could prevent him form entering
into this Agreement or performing all of his obligations hereunder.
22. WITHHOLDING. The Company may withhold from any and all amounts payable
under this Agreement such federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
Video Without Boundaries, Inc.
By: ----------------------------------------
Name: Xxxxxxx Xxxxxxx
Its: President
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Xxxxx X. Xxxxx
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Witness
Printed: -----------------------------------
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Witness
Printed: -----------------------------------
Company Initials ______ Page 14 of 14 Executive Initials ______
