EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made effective as of the 20th day of February, 2004
BETWEEN: NS8 CORPORATION, a Company incorporated under the laws of the State
---------------
of Delaware, having offices at Two Union Square, 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000 and Xxxxx 000, 0000 Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
(hereinafter called "Employer" or "NS8", as the context implies)
AND: XXXX XXXXXXX,residing at 00000 XX 000xx Xxxxxx, Xxxxxxx, Xxxxx xx
Xxxxxxxxxx, Xxxxxx Xxxxxx of America 98053
(hereinafter called the "Executive")
RECITALS
A. The Employer is in the business of designing and producing online
business applications in the areas of streaming software, digital media rights
and data-content management, audio-video communications, and corporate
collaboration systems.
B. The Executive is in the business of designing and developing marketing
strategies and business development programs for technology related businesses
and producing marketing materials collateral thereto.
C. The Employer wishes to employ the Executive as it's Chief Marketing
Officer and the Executive wishes to be employed as the Chief Marketing Officer
of the Employer pursuant to the mutual covenants, terms, and conditions of this
agreement (the "Agreement").
AGREEMENT
In consideration of the mutual covenants, terms, and conditions of this
Agreement, the parties hereto agree as follows:
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1. APPOINTMENT AND DUTIES AS CHIEF MARKETING OFFICER
-------------------------------------------------------
(a) The Employer hereby appoints the Executive to the positions of Chief
Marketing Officer of NS8 and the Executive hereby accepts such appointment and
agrees to carry out the duties, responsibilities, and obligations of that
position and to duly exercise the powers afforded to him by such appointment
upon the terms and conditions set forth in this Agreement. As Chief Marketing
Officer, the responsibilities of Executive will include, but will not be limited
to, the following:
(i) Assuming overall responsibility for Employer's go-to-market strategy,
tactics, messaging, branding, positioning, competitive analysis, collateral
development, market launch, and execution of the foregoing, with positioning to
Business Decision Makers (BDM), Technical Decision Makers (TDM), and Information
Technology (IT) Professionals in terms of economic justification and business
case development;
(ii) Assisting the President and other senior executives of Employer in New
Business Development, executing the Employer's business, marketing, and
strategic plans, and participating in key marketing and project roll-outs;
(iii) Reporting to and assisting the Board of Directors regarding strategic
direction matters, business development and related opportunities;
(iv) Assisting in leading the Employer to technological and competitive
market dominance, including participating in key negotiations;
(v) Executing any other duties and carrying out such other functions as
might be reasonably required by the Board of Directors of the Employer;
(vi) Preparing or assisting in the preparation of materials for shareholder
or public dissemination; and
(vii) Being willing to act as a director and officer of the Employer or any
of its subsidiaries or joint ventures.
(b) As Chief Marketing Officer, the Executive's critical responsibilities
and overall performance will be reviewed by the Board of Directors of the
Employer every quarter (three months) during the Term of this Agreement (the
"Review(s)"). Within 30 days after the completion of each quarterly Review the
Board of Directors will prepare a written report (the "Report(s)") that will
summarize the essential elements of the relevant quarterly Review. The Reports
will include, without limiting the generality of the foregoing, the Board of
Directors' (i) evaluation of the critical responsibilities and overall
performance of the Executive as Chief Marketing Officer of the Employer during
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the preceding quarter; (ii) recommendations regarding the upgrading of the
Executive's involvement in the operations of the Employer; and (iii)
recommendations regarding the increase or decrease of the Executive's duties,
responsibilities and obligations as an executive of the Employer. Upon the
completion of each Report, the relevant Report will be presented to the
Executive for his review and consideration. The Executive or designated
representatives of the Board of Directors may then request and require a meeting
with the other to discuss the Report and implement such action as might be
deemed appropriate in the circumstances. The failure or delay in the production
of any quarterly Report will not be deemed a default on the part of the Board of
Directors or the Employer and any such Report may be prepared as soon as the
Board is able to do so.
(c) Executive shall complete an officers and directors questionnaire and
when appropriate, provide full, true, and accurate disclosures as may be
necessary from time to time, and provide full disclosures regarding any
potential conflicts of interest and other information that might materially
affect Employer or otherwise as may be required to comply with Xxxxxxxx-Xxxxx
legislation, securities laws, and other applicable legislation.
2. TERM OF APPOINTMENT
---------------------
The appointment of the Executive to the position of Chief Marketing Officer will
commence March 1, 2004 (the "Commencement Date"), and shall continue until
terminated in accordance with the provisions of this Agreement. The initial six
(6) months of the term hereof shall be a probationary period ("Probation
Period"), during which period the Employer may terminate Executive with cause
immediately and without any advance notice, or without cause upon two weeks
advance written notice. After the expiration of the Probation Period, Employer
may only terminate Executive pursuant to Section 10 hereof.
3. COMPENSATION
------------
(a) The fixed remuneration of the Executive for his services shall be at the
rate of One Hundred Twenty-five Thousand Dollars (US$125,000) per annum for the
first year of employment; provided, however, that at the end of the Probation
Period the performance of the Executive and Employer's business shall be
reviewed and evaluated by the Board of Directors (the "Board") to determine if
the performance of Executive justifies an increase of the fixed remuneration and
to determine if Employer then has the ability to pay Executive a greater rate of
fixed remuneration for the balance of the first year of Employment or for a part
thereof. If the Board determines that in all the circumstances it is appropriate
that the fixed remuneration should be increased then it will be adjusted
accordingly. The fixed remuneration shall thereafter be reviewed and, if
appropriate, adjusted on each anniversary of the Commencement Date of his
employment pursuant to this Agreement upon agreement of Executive and Employer.
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The review will be undertaken by assessing the Executive's achievement of the
over-all objectives established by the Employer and by having regard to the
market rates of remuneration paid in the United States for similar duties and
responsibilities for similar sized companies. Employer shall withhold all
federal income and payroll taxes from such compensation as required by law.
(b) In addition to the fixed remuneration, the Executive might receive from
the Employer, at the sole discretion of Employer's Board, a cash or stock bonus
payment based on a percentage of sales of the Employer's business for each year
during the period of his employment under this Agreement from and including the
employment year commencing on the Commencement Date of this Agreement (the
"Sales Bonus"). If granted, the Sales Bonus will be based on a percentage of
sales to be determined by the Board upon the achievement by the Executive and
the Employer's business of certain performance benchmarks and criteria
determined by the Board. The Board will determine whether all or any part of
the Sales Bonus will be paid in the form of Employer's common stock. Employer
shall withhold all federal income and payroll taxes from such compensation as
required by law.
(c) Upon the date of this Agreement first written above (the "Effective
Date"), Employer will grant the Executive (i) Two Million (2,000,000) shares of
Employer's common stock as restricted shares (the "Granted Shares"), and (ii)
nonqualified stock options to acquire One and One-half Million (1,500,000)
shares of the Employer's common stock at an exercise price which equals the
closing market price of the stock as of the Effective Date of this Agreement
(the "NSO's), which NSO's shall be subject to all terms, conditions, and
qualifications set forth in Section 4A hereof. All such Granted Shares and
NSO's shall be forfeit to the Employer in the event the Employer terminates this
Agreement in accordance with Section 10(a)(ii) during the first year hereof
calculated from the Commencement Date, or if Executive shall terminate this
Agreement during the first year hereof calculated from the Commencement Date for
any reason. The Employer will issue the share certificate representing the
Granted Shares to Executive on the anniversary date of the Commencement Date if
the Granted Shares have not previously been forfeited to the Employer.
(d) In addition to the Executive's Granted Shares and NSO's, the Executive
will also be able to participate, to the extent determined by the Compensation
Committee of the Board of Directors, in additional stock bonus or stock option
plans of the Employer after completing one (1) year of service to the Employer
calculated from the Commencement Date.
4. BENEFITS
--------
(a) Automobile and Travel. The Employer will reimburse the Executive for his
automobile expenses based on his actual mileage at the rate of $0.375USD per
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mile; provided, however, Employer's total obligation for reimbursement of
Executive's automobile expenses shall not exceed $600USD per month. Employer
will withhold all federal income and payroll taxes from such compensation as
required by law. Other "non-automobile" travel expenditures will be dealt with
in the manner described in sub-paragraph 4(b). The Executive will be provided
with a reasonable allowance for hotel or necessary housing in the event that the
Executive might be required to reside outside of the area of his current
residential location.
(b) Expenses. It is understood and agreed that the Executive will incur
expenses in connection with his duties under this Agreement. The Employer will
reimburse the Executive for any reasonable and necessary expenses provided that
the Executive provides to the Employer an itemized written account and receipts
acceptable to the Employer within 30 days after they have been incurred. The
Employer will reimburse the Executive monthly provided the Executive submits his
itemized written account and receipts acceptable to the Employer on a regular
monthly basis in a timely fashion. Employer shall not be obligated to reimburse
Executive for any item in excess of $2,000USD unless approved in advance by the
Board.
(c) Benefit Plans. Employer has arranged a benefits plan for its Canadian
resident employees, including dental, medical and extended health care benefits
and life insurance. Since the Employer's existing benefits plan is unable to
accommodate the Executive because of his status as a resident of the United
States of America, Executive will be covered by a new benefits coverage plan
package being arranged in the United States for the Executive and for all
personnel of Employer who are residents of the United States, with coverage to
be effective upon the Commencement Date, if possible. Employer will reimburse
the Executive for premiums paid for the period after the Commencement Date for
Executive's current individual policies for dental, medical and extended health
care benefits for Executive and his spouse until the benefits plan for U.S.
residents is implemented. Employer will only pay the premiums for life
insurance coverage included under the current individual policies for dental,
medical and extended health care benefits of Executive and his spouse and not
for any other life or disability policies covering Executive and his spouse.
The life insurance coverage under the U.S. benefits coverage package shall be in
the amount provided under Employer's Canadian benefits coverage package. The
U.S. benefits plan will be subject to the approval of the Board.
(d) throughout the term hereof, the Employer shall obtain and maintain one
or more policies of directors and officers liability insurance providing
coverage on a claims made basis, limits, and deductibles comparable to those
obtained by other similarly situated companies, and reasonably acceptable to
Executive. Employer shall maintain such insurance following the termination of
this Agreement for any reason for the statute of limitations on covered risks in
respect of the period of Executive's employment, or shall obtain tail coverage
for the benefit of Executive for such period of limitations, at Employer's
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expense. It is understood and agreed by the parties that while Employer will
exercise all reasonable efforts to obtain such coverage, it might be required to
accept a lesser amount of coverage on less favorable terms due to insurance
market conditions and the availability of coverage. In addition, Employer shall
indemnify Executive as described on Exhibit A hereto, in addition to Executive's
indemnification rights under Employer's Articles of Incorporation and Bylaws.
(e) Executive agrees that Employer will be permitted to obtain insurance
coverage in respect of the Executive, if possible, for an amount not less than
$1,000,000 USD as part of Employer's key-man insurance and that the beneficiary
of such insurance in the event of the death or disability of Executive will be
the Employer.
4A. TERMS AND CONDITIONS OF NSO'S
---------------------------------
(a) The NSO's shall be exercisable at any time, in whole or in part, during
the five (5) year period commencing upon the expiration of one year following
the Commencement Date of this Agreement.
(b) If at any time during the option period the Employer registers any of
its securities for sale, Executive shall be entitled to require the registration
of the shares to be issued pursuant to the NSO's. Further, if at any time
during the option period the Employer shall be entitled to register the shares
to be issued pursuant to the NSO's on Form S-3, Executive shall be entitled to
demand registration of such shares.
(c) Executive shall be entitled to participate in any proposed sale
arrangement with other founders and/or executives of the Employer pursuant to
exemptions from registration, subject to all restrictions of the Securities Act
of 1933.
(d) The NSO's shall be nontransferable, other than to an entity in which
Executive exercises 100% control, or to a trust in which all beneficial
interests are held by members of Executive's immediate family.
(e) The shares to be issued upon exercise of the NSO's are restricted
shares, and, unless registered, will bear legends imposed by the Securities Act
of 1933. So long as Executive is employed by Employer, Rule 144 will limit and
control all dispositions of such shares.
(f) If at any time a purchaser is to acquire more than twenty percent (20%)
of the issued and outstanding capital stock of the Employer, then Executive
shall be deemed to have exercised all NSO's then held, and the Employer shall
pay additional compensation to Executive in an amount such that, after
withholding all payroll and other taxes associated with such additional
compensation, the net additional compensation shall be equal to the total tax
obligation of Executive resulting from the exercise of all NSO's then held,
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which net sum the Employer shall withhold and deposit with appropriate tax
authorities on behalf of Executive as provided by law.
(g) If Employer shall adopt a stock option plan after the date hereof to
which the NSO's shall be subject, the provisions of this Agreement shall control
over any contrary provisions in such plan.
5. AUTHORITY
---------
(a) The Executive shall have, subject always to the general or specific
instructions and directions of the Board of the Employer, full power and
authority to manage and direct the marketing program and the Marketing
Department (the "Marketing Functions") of the Employer (except for those matters
and duties as by law must be transacted or performed by the Board, the Chairman
of the Board, the Chief Executive Officer or the President of Employer). With
respect to Marketing Functions, the Executive will have the power and authority
to enter into contracts, engagements or commitments in the name of and on behalf
of the Employer and to engage, employ and dismiss employees, consultants and
agents of the Employer other than officers or Directors of the Employer,
provided that in each such case Executive obtains the prior approval of the
Board to the proposed action.
(b) The Executive shall conform to all lawful instructions and directions
given to him by the Board of Directors of the Employer, and obey and carry out
the Articles and By-laws of the Employer.
(c) Notwithstanding the forgoing, during the Probation Period, Executive
shall not have authority, without the prior written approval of the Board of
Directors, to execute any financial transaction document on behalf of the
Employer, or to hire or terminate any executive of the Employer.
6. SERVICE
-------
(a) The Executive, throughout the term of his appointment and except as
otherwise disclosed in writing as of the Commencement Date, shall devote his
full business time and attention to the business and affairs of the Employer,
its affiliates and subsidiaries and shall not, without the consent in writing of
the Board undertake any other business or occupation or become a director,
officer, employee, consultant or agent of any other company, firm, or
individual.
(b) The Executive shall well and faithfully serve the Employer, its
affiliates and subsidiaries and use his best efforts to promote the interests
thereof and shall not disclose the private affairs or trade secrets of the
Employer, its affiliates, or subsidiaries to any person other than to the
Directors of the Employer or disclose for any purpose other than for those of
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the Employer any information the Executive might acquire in relation to the
Employer's business.
(c) The Executive shall attend at the Employer's office in Seattle on a
daily basis during regular business hours, Monday to Friday, except when he is
required to attend at the Vancouver, BC office or elsewhere to attend to
Employer's business.
7. INTENTIONALLY OMITTED
----------------------
8. CONFIDENTIAL INFORMATION
-------------------------
The Executive acknowledges that as the Chief Marketing Officer and in any other
position as the Executive may hold, the Executive will acquire information about
certain matters and things which are confidential to the Employer, and which
information is the exclusive property of the Employer. As of the Commencement
Date and at all times thereafter, Executive shall be bound by and observe the
Employer's Non-Disclosure Agreement previously executed and delivered by
Executive. Further, the Executive shall at all times comply with Employer's
standard policies and procedures in office security monitoring and surveillance
activities within the premises of Employer.
9. VACATION
--------
The Executive shall be entitled during each year to five (5) weeks paid
vacation. The vacation shall be taken at the time or times as the Board may
approve. The Executive shall be allowed to carry forward two (2) unused vacation
into the next calendar year but not further.
10. TERMINATION OF EMPLOYMENT
---------------------------
(a) The parties understand and agree that this Agreement may be terminated
in the following manner in the specified circumstances:
(i) by the Executive, at any time, for any reason, on the giving of 8 weeks
written notice to the Employer. The Employer may waive notice, in whole or in
part.
(ii) by the Employer, without any notice or pay in lieu thereof, for good
cause shown. For the purposes of this Agreement, good cause shown shall be
limited to:
(1) any material breach by the Executive of the provisions of this Agreement
involving deceit or fraud, or any material breach by the Executive of the
Non-Disclosure Agreement causing the Employer material damage;
(2) any conduct of the Executive which results in publicity which, in the
reasonable opinion of the Employer, which opinion shall be subject to the
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dispute resolution provisions hereof, brings himself or the Employer into public
disrepute;
(3) conviction of the Executive of a criminal offense punishable as a
felony.
Failure by the Employer to rely on the provision of this paragraph in any given
instance or instances, shall not constitute a precedent or be deemed a waiver of
its rights hereunder.
(iii) at any time after the Commencement Date by the Employer for any of the
following reasons upon giving the Executive at least one month's advance notice
in writing and on paying to the Executive termination (severance) pay in an
amount equal to one month's compensation (as defined in sub-paragraph 3(a)
above) for each full year of his employment:
(1) Executive is convicted of a criminal offense (other than a felony or
traffic violations);
(2) Executive fails to provide adequate reporting of progress and material
results to the Board of Directors, or, in the absence of the Board of Directors,
to the Chairman of the Board of Directors;
(3) Executive commits an act of corporate espionage, or any act constituting
a breach of any of the Employer's rules or agreements governing confidentiality
of trade secrets or confidential information;
(4) Executive distributes or exchanges any confidential information
regarding the Employer or its products or services which, directly or
indirectly, has a material adverse effect on the Employer or its business;
(5) Executive is convicted of any criminal or quasi-criminal offense
relating to xxxxxxx xxxxxxx, or it is determined by any relevant governing
authority that Executive has violated any legislation, regulation, or rule
relating to xxxxxxx xxxxxxx;
(6) Executive fails to adequately perform his duties and responsibilities
pursuant to the terms and conditions of this Agreement or as directed by the
Board of Directors of Employer; or
(7) Executive is in violation of or fails to adequately comply with any
material term or condition of this Agreement or any direction of the Board of
Directors of the Employer.
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(b) The parties understand and agree that the giving of notice or the
payment of pay in lieu of notice by the Employer to the Executive on termination
of the Executive's employment shall not prevent the Employer from alleging cause
for the termination.
(c) On termination of employment the Executive shall immediately resign all
offices held (including directorships) in the Employer, its affiliates and
subsidiaries and except as provided in this Agreement, the Executive shall not
be entitled to receive any severance payment or compensation for loss of office
or otherwise by reason of the resignation. If the Executive fails to resign as
mentioned the Employer is irrevocably authorized to appoint some person in the
Executive's position, place and xxxxx and in his name and on the Executive's
behalf to sign any documents or do any things necessary or requisite to give
cause to such resignation.
11. EMPLOYER'S PROPERTY
--------------------
The Executive acknowledges that all items of every nature or kind created or
used by the Executive pursuant to the Executive's employment under this
Agreement, or furnished by the Employer to the Executive, and all equipment,
automobiles, credit cards, software or hardware, books, records, reports, files,
diskettes, manuals, literature, confidential information or other materials
shall remain and be considered the exclusive property of the Employer ("Employer
Property") at all times and shall be immediately surrendered to the Employer at
the request of the Employer, or in the absence of a request, on the termination
of the Executive's employment the Employer shall have the right to repossess or
seize any or all of the Employer Property from the Executive without notice
where ever the Employer Property may me located.
11A. INTELLECTUAL PROPERTY RIGHTS
------------------------------
(a) For purposes of this Agreement, "Inventions" includes, without
limitation, information, inventions, contributions, improvements, ideas, or
discoveries, whether protectable or not, and whether or not conceived or made
during work hours. Executive shall be entitled to proportionate credit with
respect to all Inventions to which Executive makes a direct contribution.
Notwithstanding the forgoing, however, Executive shall assert no ownership claim
with respect to any Invention (i) unless the Board of Directors of the Employer
determines that Employer cannot commercially exploit such Invention, (ii) unless
the Employer becomes insolvent, (iii) at any time when such Invention
constitutes collateral held by any financial institution to secure financing for
the Employer, or (iv) during the course of or following the sale of such
Invention by Employer.
(b) Executive agrees to promptly disclose in writing to Employer during the
term hereof, all Inventions developed during the term hereof in which Executive
believes he directly participated and claims an interest so that Executive's
rights and Employer's rights in such Inventions can be determined.
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(c) NOTICE: IN ACCORDANCE WITH WASHINGTON LAW, THIS SECTION DOES NOT APPLY
------
TO INVENTIONS FOR WHICH NO EQUIPMENT, SUPPLIES, FACILITY, OR TRADE SECRET
INFORMATION OF EMPLOYER WAS USED AND WHICH WAS DEVELOPED ENTIRELY ON EXECUTIVE'S
OWN TIME, UNLESS: (A) THE INVENTION RELATES (I) DIRECTLY TO THE BUSINESS OF
EMPLOYER OR (II) TO EMPLOYER'S ACTUAL OR DEMONSTRABLY ANTICIPATED RESEARCH OR
DEVELOPMENT, OR (B) THE INVENTION RESULTS FROM ANY WORK PERFORMED BY EXECUTIVE
FOR EMPLOYER.
11B. RESOLUTION OF DISPUTES
------------------------
(a) Except for the right of Employer and Executive to seek injunctive relief
in court, any controversy, claim or dispute of any type arising out of or
relating to Executive's employment or the provisions of this Agreement shall be
resolved in accordance with this Section regarding resolution of disputes, which
will be the sole and exclusive procedure for the resolution of any disputes.
This Agreement shall be enforced in accordance with the Federal Arbitration Act,
the enforcement provisions of which are incorporated by this reference. Matters
subject to these provisions include, without limitation, claims or disputes
based on statute, contract, common law and tort and will include, for example,
matters pertaining to termination, discrimination, harassment, compensation and
benefits. Matters to be resolved under these procedures also include claims and
disputes arising out of statutes such as the Fair Labor Standards Act, Title VII
of the Civil Rights Act, the Age Discrimination in Employment Act, the
Washington Minimum Wage Act, and the Washington Law Against Discrimination.
Nothing in this provision is intended to restrict Executive or Employer from
submitting any matter to an administrative agency with jurisdiction over such
matter.
(b) Employer and Executive will make a good faith attempt to resolve any and
all claims and disputes by submitting them to mediation in Seattle, Washington,
before resorting to arbitration or any other dispute resolution procedure. The
mediation of any claim or dispute must be conducted in accordance with the
then-current JAMS procedures for the resolution of employment disputes by
mediation, by a mediator who has had both training and experience as a mediator
of general employment and commercial matters. If the parties to this Agreement
cannot agree on a mediator, then the mediator will be selected by JAMS in
accordance with JAMS' strike list method. Within thirty (30) days after the
selection of the mediator, Employer and Executive and their respective attorneys
will meet with the mediator for one mediation session of at least four hours.
If the claim or dispute cannot be settled during such mediation session or
mutually agreed continuation of the session, either Employer or Executive may
give the mediator and the other party to the claim or dispute written notice
declaring the end of the mediation process. All discussions connected with this
mediation provision will be confidential and treated as compromise and
settlement discussions. Nothing disclosed in such discussions, which is not
independently discoverable, may be used for any purpose in any later proceeding.
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The mediator's fees will be paid in equal portions by Employer and Executive,
unless Employer agrees to pay all such fees.
(c) If any claim or dispute has not been resolved in accordance with
subsection (b) of this Section, then the claim or dispute will be determined by
arbitration in accordance with the then-current JAMS employment arbitration
rules and procedures, except as modified herein. The arbitration will be
conducted by a sole neutral arbitrator who has had both training and experience
as an arbitrator of general employment and commercial matters and who is and for
at least ten (10) years has been, a partner, a shareholder, or a member in a law
firm. If Employer and Executive cannot agree on an arbitrator, then the
arbitrator will be selected by JAMS in accordance with Rule 13 of the JAMS
employment arbitration rules and procedures. No person who has served as a
mediator under the mediation provision, however, may be selected as the
arbitrator for the same claim or dispute. Reasonable discovery will be
permitted and the arbitrator may decide any issue as to discovery. The
arbitrator may decide any issue as to whether or as to the extent to which any
dispute is subject to the dispute resolution provisions in Section 12 and the
arbitrator may award any relief permitted by law. The arbitrator must base the
arbitration award on the provisions of this Section and applicable law and must
render the award in writing, including an explanation of the reasons for the
award. Judgment upon the award may be entered by any court having jurisdiction
of the matter, and the decision of the arbitrator will be final and binding.
The statute of limitations applicable to the commencement of a lawsuit will
apply to the commencement of arbitration under this subsection (c). The
arbitrator's fees will be paid in equal portions by Employer and Executive.
(d) Unless otherwise agreed, the prevailing party will be entitled to its
costs and reasonable attorneys' fees incurred in the resolution of any dispute
relating to the interpretation or enforcement of this Agreement.
12. ASSIGNMENT OF RIGHTS
----------------------
The rights which accrue to the Employer under this Agreement shall pass to the
successors or assigns of the business of Employer as a going concern if the
assignment of this Agreement is a condition of such transfer of the business of
Employer. The rights of the Executive under this Agreement are not assignable
or transferable in any manner.
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13. NOTICES
-------
(a) Any notice required or permitted to be given to the Executive shall be
sufficiently given if delivered to the Executive personally or if mailed by
registered mail to the Executive's address last known to the Employer, or if
delivered to the Executive via facsimile.
(b) Any notice required or permitted to be given to the Employer shall be
sufficiently given if mailed by registered mail to the Employer's Vancouver, BC
office at its address last known to the Executive, or if delivered to the
Employer via facsimile.
14. SEVERABILITY
------------
In the event that any provision or part of this Agreement shall be deemed void
or invalid by a court of competent jurisdiction, the remaining provisions or
parts shall be and remain in full force and effect.
15. ENTIRE AGREEMENT
-----------------
This contract constitutes the entire Agreement between the parties with respect
to the employment and appointment of the Executive as Chief Marketing officer
and any and all previous agreements, written or oral, express or implied,
between the parties or on their behalf, relating to the employment and
appointment of the Executive by the Employer, are terminated and canceled and
each of the parties releases and forever discharges the other of and from all
manner of actions, causes of action, claims and demands whatsoever, under or in
respect of any agreement.
16. MODIFICATION OF AGREEMENT
---------------------------
Any modification to this Agreement must be in writing and signed by the parties
or it shall have no effect and shall be void.
17. HEADINGS
--------
The headings used in this Agreement are for convenience only and are not to be
construed in any way as additions to or limitations of the covenants and
agreements contained in it.
REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK
NEXT PAGE IS EXECUTION PAGE
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18. GOVERNING LAW
--------------
This Agreement shall be construed in accordance with the laws of the State of
Washington, United States of America.
IN WITNESS WHEREOF this Agreement has been executed by the parties as of
the day, month and year first above written.
SIGNED, SEALED AND DELIVERED
BY XXXX XXXXXXX
in the presence of: )
)
________________________________) _____________________________
Witness - Signature ) Executive's Signature
)
________________________________) _____________________________
Witness - Print Name ) Executive - Social Security Number
AGREED TO AND ACCEPTED BY:
NS8 CORPORATION
Per: _______________________________
Authorized Signing Officer/Director
Per: _______________________________
Authorized Signing Officer/Director
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EXHIBIT A
ADDENDUM TO EMPLOYMENT AGREEMENT
This is an Addendum to that certain Employment Agreement (the "Agreement")
having an Effective Date as of February ____, 2004, between NS8 CORPORATION, as
"Employer," and XXXX XXXXXXX, as "Executive," whereby the Employer and Executive
hereby mutually agree to amend the Agreement to add the following
indemnification provisions to the Agreement:
1. Indemnification of Executive
------------------------------
The Employer agrees to indemnify and hold harmless the Executive from and
against any claims, losses, damages, expenses or liabilities (collectively,
"Losses"), including without limitation legal fees and accounting fees (subject
to the limitations set forth below), incurred in connection with investigating,
preparing, defending, paying, settling or compromising any action, claim; or
proceeding (whether or not in connection with any pending or threatened
litigation in which the Executive is a named party) to which the Executive may
become subject and which is related to or arises out of the engagement or
performance of the services of the Executive contemplated in this Agreement.
The Employer will not, however, be responsible to the Executive with respect to
any Losses to the extent that a court of competent jurisdiction shall have
determined by a final judgment that such Losses resulted from actions taken or
omitted to be taken by the Executive due to the Executive's gross negligence or
wilful misconduct.
The Employer will reimburse the Executive for Losses as such Losses are incurred
or paid, notwithstanding the absence of judicial determination as to the
propriety or enforceability of the Employer's obligation to reimburse the
Executive for such Losses and the possibility that such payments might later be
held by a court of competent jurisdiction to have been improper. To the extent
that any such interim reimbursement is so held to have been improper, the
Executive shall promptly return it to the Employer, together with interest,
compounded annually, equal to the prime rate announced from time to time by Bank
of America, San Francisco, California.
The Employer also agrees that Executive shall have no liability, whether at law
or in equity, to the Employer or its affiliates, directors, officers, employees,
agents, advisors, representatives, control persons or stockholders, directly or
indirectly, related to or arising out of the engagement or performance of the
services of the Executive contemplated in this Agreement, except Losses incurred
by the Employer to the extent a court of competent jurisdiction shall have
determined by a final judgment that such Losses resulted primarily from actions
taken or omitted to be taken by the Executive due to the Executive's gross
negligence or wilful misconduct. In no event, regardless of the legal theory
34
advanced, shall the Executive be liable for any consequential, indirect,
incidental or special damages of any nature.
2. Addendum Incorporated into Agreement by Reference
------------------------------------------------------
All of the terms, provisos and conditions of this Addendum are hereby
incorporated into the Agreement by reference and shall form a part thereof for
all purposes
IN WITNESS WHEREOF, the parties have duly signed and delivered this Addendum to
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the Agreement as of the day and year first above written.
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NS8 CORPORATION
By:
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Name:
------------------
Title:
-----------------
XXXX XXXXXXX
By:
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Name: Xxxx Xxxxxxx
00
