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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), effective as of June 21,
1999 between Digital Lava Inc., a Delaware corporation (with its successors and
assigns, referred to as the "Corporation"), and Xxxxxx X. Xxxxxx (referred to as
"Employee").
Preliminary Statement
The Corporation desires to employ Employee, and Employee wishes to be
employed by the Corporation, upon the terms and subject to the conditions set
forth in this Agreement. The Corporation and Employee also wish to enter into
the other agreements set forth in this Agreement, all of which are related to
Employee's employment under this Agreement.
W I T N E S S E T H
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the adequacy and sufficiency of which are hereby
acknowledged, the parties hereto agree hereby as follows:
1. Employment for Term. The Corporation hereby employs Employee and
Employee hereby accepts employment with the Corporation for the period beginning
on the date hereof (the "Commencement Date") and ending on the three-year
anniversary of such date (the "Initial Term"), or upon the earlier termination
of the Term pursuant to Section 6. This Agreement shall be automatically renewed
for additional one-year periods (the "Renewal Terms;" together with the Initial
Term, the "Term") unless either party notifies the other in writing of its
intention not to so renew this Agreement no less than 120 days prior to the
expiration of the Initial Term or a Renewal Term. The termination of Employee's
employment under this Agreement shall end the Term but shall not terminate
Employee's or the Corporation's other agreements in this Agreement, except as
otherwise provided herein.
2. Position and Duties. During the Term, Employee shall serve as Chief
Executive Officer of the Corporation. During the Term, Employee shall also hold
such additional positions and titles as the Board of Directors of the
Corporation (the "Board") may determine from time to time. During the Term,
Employee shall devote his full business time and efforts to his duties as an
employee of the Corporation. Employee shall not, during the term of this
Agreement, engage in any business activity that interferes with the performance
of his obligations under this Agreement.
3. Compensation.
(a) Base Salary. The Corporation shall pay Employee a base
salary, beginning on the first day of the Term and ending on the last day of the
Term, of not less than $300,000 per annum, payable at least monthly on the
Corporation's regular pay cycle for professional employees.
(b) Stock Options. Pursuant to the Corporation's stock option
plan, the Corporation hereby grants to Employee as of the date hereof ten-year
incentive and non-qualified options (the "Options") under the Corporation's 1996
Incentive and Non-Qualified Stock Option
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Plan (the "Plan") to purchase 376,820 shares of the common stock of the
Corporation, par value $.0001 per share (the "Common Stock") at an exercise
price equal to $6.125 (the "Exercise Price"). Of the 376,820 Options, 65,304
shall be designated as Incentive Stock Options under the Plan and 311,516 shall
be designated as Nonstatutory Stock Options under the Plan. The terms and
provisions of the Options are more fully set out in Section 9 hereof. The
Company hereby represents and warrants to Employee that the Options, if
exercisable in full and actually exercised as of the Commencement Date, would
have resulted in the issuance of shares of Common Stock representing five
percent (5%) of the outstanding Common Stock on a fully diluted basis as of the
Commencement Date. Adjustments in the number of Options will be made in
accordance with the provisions of Section 10 hereof if the Corporation shall, on
or before December 21, 1999, sell or issue shares of Common Stock or Convertible
Securities (as defined herein) in connection with any equity or debt financing
at a price less than the Exercise Price.
(c) Other Compensation. The preceding sections establish the
minimum compensation during the Term and shall not preclude the Board from
awarding Employee a higher salary or any bonuses or stock options in the
discretion of the Board during the Term at any time. Employee will also be
eligible to receive an annual bonus of up to $100,000 which will be based on
criteria to be mutually determined by Employee and the Board.
(d) Residence. The Corporation will provide Employee with a
studio or one-bedroom apartment in the Los Angeles area with maximum annual rent
in an amount to be determined by the Board in its reasonable discretion.
4. Employee Benefits. During the Term, Employee shall be entitled to the
employee benefits, including vacation, 401(k) plan, health plan and other
insurance and additional benefits made available by the Corporation to any other
employee of the Corporation. Employee shall be entitled to four (4) weeks' paid
vacation. The Corporation shall cause Employee to be included for coverage on
the Corporation's Directors and Officers liability insurance policy.
5. Expenses. The Corporation shall reimburse Employee for actual
out-of-pocket expenses incurred by him in the performance of his services for
the Corporation upon the receipt of appropriate documentation of such expenses.
6. Termination.
(a) General. The Term shall end immediately upon Employee's
death. The Term may also end for Cause or Disability, as defined in Section 7
below.
(b) Notice of Termination. Promptly after it ends the Term, the
Corporation shall give Employee notice of the termination, including a statement
of whether the termination was for Cause or Disability (as defined in Section
7(a) and 7(b) below). The Corporation's failure to give notice under this
Section 6(b) shall not, however, affect the validity of the Corporation's
termination of the Term.
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7. Severance Benefits.
(a) "Cause" Defined. "Cause" is defined herein as either (i)
willful malfeasance or willful misconduct by Employee in connection with his
employment; (ii) Employee's gross negligence in performing any of his duties
under this Agreement; (iii) Employee's conviction of, or entry of a plea of
guilty to, or entry of a plea of nolo contendere with respect to, any crime
other than a traffic violation or infraction which is a misdemeanor; (iv)
Employee's engaging in repeated substance abuse; (v) Employee's material breach
of any written policy applicable to all employees adopted by the Corporation
which is not cured to the reasonable satisfaction of the Corporation within
fifteen (15) business days after notice thereof; (vi) material breach by
Employee of any of his agreements in this Agreement which is not cured to the
reasonable satisfaction of the Corporation within fifteen (15) business days
after notice thereof; or (vii) the dissolution and liquidation of the
Corporation. Any determination by the Corporation of whether Cause exists to
terminate Employee shall be made by the Board, which shall deliver to Employee
written notice of a meeting to be held for such purpose at least five (5) days
prior to such meeting, which Employee and his counsel shall be offered an
opportunity to attend.
(b) Disability Defined. "Disability" shall mean Employee's
incapacity due to physical or mental illness that results in his being unable to
substantially perform his duties hereunder for six consecutive months (or for
six months out of any nine month period). During a period of Disability,
Employee shall continue to receive his base salary hereunder, provided that if
the Corporation provides Employee with disability insurance coverage, payments
of Employee's base salary shall be reduced by the amount of any disability
insurance payments received by Employee due to such coverage. The Corporation
shall give Employee written notice of termination at the end of such six-month
period, which shall take effect sixty (60) days after the date it is sent to
Employee unless Employee shall have returned to the performance of his duties
hereunder during such sixty (60) day period (whereupon such notice shall become
void).
(c) Termination.
(i) If the Corporation ends the Term for Cause or
Disability, or if Employee resigns as an employee of the Corporation for reasons
other than a material breach by the Corporation of its obligations under this
Agreement, or if Employee dies, then the Corporation shall have no obligation to
pay Employee any amount, whether for salary, benefits, bonuses, or other
compensation or expense reimbursements of any kind, accruing after the end of
the Term, and such rights shall, except as otherwise required by law, be
forfeited immediately upon the end of the Term.
(ii) If the Corporation ends the Term without Cause or
Disability, then the Corporation shall be obligated to pay Employee a severance
payment equal to the sum of Employee's annual base salary, a pro rated amount of
his prior year's bonus compensation and accrued vacation pay, payable upon the
effective date of termination.
(iii) If Employee ends the Term for any reason, the
Corporation shall not be obligated to pay any severance payment to Employee,
unless Employee has elected to terminate as a result of a substantial diminution
of his duties hereunder ("Good Reason"), in
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which case the Corporation will be obligated to make the severance payment
referred to in Section 7(c)(ii).
8. Confidentiality, Ownership, and Covenants.
(a) "Corporation Information" and "Inventions" Defined.
"Corporation Information" means all information, knowledge or data of or
pertaining to (i) the Corporation, its employees, and (ii) any other person,
firm, corporation or business organization with which the Corporation may do
business during the Term, that is not in the public domain (and whether relating
to methods, processes, techniques, discoveries, pricing, marketing or any other
matters). "Inventions" collectively refers to any and all inventions, trade
secrets, source and object codes, data, programs, other works of authorship and
developments regarding any of the foregoing.
(b) Confidentiality. (i) Employee hereby recognizes that the
value of all trade secrets and other proprietary data and all other information
of the Corporation not in the public domain disclosed by the Corporation in the
course of his employment with the Corporation may be attributable substantially
to the fact that such confidential information is maintained by the Corporation
in strict confidentiality and secrecy and would be unavailable to others without
the expenditure of substantial time, effort or money. Employee, therefore,
except as provided in the next two sentences, covenants and agrees that all
Corporation Information shall be kept secret and confidential at all times
during the Term and for the three (3) year period after the end of the Term and
shall not be used or divulged by him outside the scope of his employment as
contemplated by this Agreement, except as the Corporation may otherwise
expressly authorize by action of the Board and except if such Corporation
Information is then in the public domain through no action (or nonaction) on the
part of Employee. In the event that Employee is requested in a judicial,
administrative or governmental proceeding to disclose any of the Corporation
Information, Employee will promptly so notify the Corporation so that the
Corporation may seek a protective order or other appropriate remedy and/or waive
compliance with this Agreement. If disclosure of any of the Corporation
Information is required, Employee may furnish the material so required to be
furnished, but Employee will furnish only that portion of the Corporation
Information that legally is required to be so disclosed.
(ii) Employee also hereby agrees to keep the terms of
this Agreement confidential to the same extent that the Corporation maintains
such confidentiality (except with regard to any disclosure by the Corporation
required under applicable securities laws).
(c) Ownership of Inventions, Patents and Technology. Employee
hereby assigns to the Corporation all of Employee's right (including patent
rights, copyrights, trade secret rights, and all other rights throughout the
world), title and interest in and to Inventions, whether or not patentable or
registrable under copyright or similar statutes, made or conceived or reduced to
practice or learned by Employee, either alone or jointly with others, during the
course of the performance of services for the Corporation. Employee shall also
assign to, or as directed by, the Corporation, all of Employee's right, title
and interest in and to any and all Inventions, the full title to which is
required to be in the United States government by a contract between the
Corporation and the United States government or any of its agencies. The
Corporation shall have all right, title and interest in all research and work
product produced by Employee as an employee of the Corporation. Upon request by
the Corporation, Employee shall, without
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compensation other than Employee's usual and customary salary, bonus and
benefits hereunder, execute all such assignments and other documents and perform
all such acts necessary to enable the Corporation to obtain or uphold for its
benefit patents or copyrights for, and other rights to, such Inventions relating
thereto, which shall be owned by the Corporation, whether or not Employee is the
inventor thereof.
(d) Non-Competition Period Defined. "Non-Competition Period"
means the one-year period beginning on the date following the end of the Term;
provided, however, that the covenants set forth in Section 8(e) shall not apply
if the Corporation ends the Term without Cause or if Employee ends the Term for
Good Reason.
(e) Covenants Regarding the Term and Non-Competition Period.
Employee acknowledges and agrees that his services pursuant to this Agreement
are unique and extraordinary; that the Corporation will be dependent upon
Employee for; and that he will have access to and control of confidential
information of the Corporation. Employee further acknowledges that the business
of the Corporation is national in scope and cannot be confined to any particular
geographic area of the United States. For the foregoing reasons and to induce
the Corporation to enter this Agreement, Employee covenants and agrees that
during the Term and the Non-Competition Period, Employee shall not unless with
written consent of the Corporation:
(i) engage in the business of development and commercial
sale in direct or indirect competition with the Corporation of any digital video
analysis computer software program, product or process in which the Corporation
had been engaged during the last 90 days of the Term (the "Prohibited Activity")
in the United States or elsewhere for his own account;
(ii) directly or indirectly, enter the employ of, or
render any services with respect to a Prohibited Activity only, including but
not limited to consultations, to any individual, corporation, limited liability
company, partnership or other business entity (a "Person") engaged in any
Prohibited Activity in the United States or elsewhere; or
(iii) become interested in any Person engaged in any
Prohibited Activity in the United States, directly or indirectly, as an
individual, partner, shareholder, officer, member, principal, agent, employee,
trustee, consultant or in any other relationship or capacity; provided, however,
that Employee may serve as a director of any such Person and may own directly or
indirectly, solely as an investment, securities of any Person which are traded
on any national securities exchange if Employee (x) is not a controlling person
of, or a member of a group which controls, such person or (y) does not, directly
or indirectly, own 5% or more of any class of securities of such person;
(iv) directly or indirectly solicit, entice or induce
any person which at any time during the last 180 days of the Term or during the
entire Non-Competition Period was a customer of the Corporation to become a
customer of any other person for any product or services related to any
Prohibited Activity; or
(v) directly or indirectly hire, employ or retain any
person who at any time during the last 90 days of the Term or during the entire
Non-Competition Period was an
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employee of the Corporation or directly or indirectly solicit, entice, induce or
encourage any such person to become employed by any other person.
(f) Remedies. Employee hereby acknowledges that the covenants
and agreements contained in Section 8 (collectively, the "Restrictive
Covenants") are reasonable and valid in all respects and that the Corporation is
entering into this Agreement, inter alia, on such acknowledgment. If Employee
breaches, or threatens to commit a breach, of any of the Restrictive Covenants,
the Corporation shall have the following rights and remedies, each of which
rights and remedies shall be independent of the other and severally enforceable,
and all of which rights and remedies shall be in addition to, and not in lieu
of, any other rights and remedies available to the Corporation under law or in
equity: (i) the right and remedy to have the Restrictive Covenants specifically
enforced by any court having equity jurisdiction, it being acknowledged and
agreed that any such breach or threatened breach will cause irreparable injury
to the Corporation and that money damages will not provide an adequate remedy to
the Corporation; (ii) the right and remedy to require Employee to account for
and pay over to the Corporation all compensation, profits, monies, accruals,
increments or other benefits (collectively, "Benefits") derived or received by
Employee as the result of any transactions constituting a breach of any of the
Restrictive Covenants, and Employee shall account for and pay over such Benefits
to the Corporation; (iii) if any court determines that any of the Restrictive
Covenants, or any part thereof, is invalid or unenforceable, the remainder of
the Restrictive Covenants shall not thereby be affected and shall be given full
effect, without regard to the invalid portions; and (iv) if any court construes
any of the Restrictive Covenants, or any part thereof, to be unenforceable
because of the duration of such provision or the area covered thereby, such
court shall have the power to reduce the duration or area of such provision and,
in its reduced form, such provision shall then be enforceable and shall be
enforced.
(g) Jurisdiction. The parties intend to and hereby confer
jurisdiction to enforce the Restrictive Covenants upon the courts of any
jurisdiction within the geographical scope of such Covenants. If the courts of
any one or more such jurisdictions hold the Restrictive Covenants wholly
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of the parties that such determination not bar or in any way affect
the Corporation's right to the relief provided above in the courts of any other
jurisdiction, within the geographical scope of such Covenants, as to breaches of
such Covenants in such other respective jurisdictions such Covenants as they
relate to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
9. Stock Options.
(a) Grant. Subject to the terms hereof and of the Plan, the
Options shall be designated as Incentive Stock Options and Nonstatutory Stock
Options and shall become and be exercisable according to the following schedule
(each date referred to as a "Vesting Date"):
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On the date hereof -0-
June 21, 2000 -150,728 shares of Common Stock, consisting
of 16,326 Incentive Stock Options and 134,402
Nonstatutory Stock Options
June 21, 2001 -75,364 shares of Common Stock, consisting of
16,326 Incentive Stock Options and 59,038
Nonstatutory Stock Options
June 21, 2002 -75,364 shares of Common Stock, consisting of
16,326 Incentive Stock Options and 59,038
Nonstatutory Stock Options
June 21, 2003 -75,364 shares of Common Stock, consisting of
16,326 Incentive Stock Options and 59,038
Nonstatutory Stock Options;
provided, however, that the Options will vest immediately prior to the
occurrence of any sale, merger or change of control as provided in Section 10(c)
of the Plan; and provided, further that in the event the Corporation ends the
term without Cause or Disability or if the Employee ends the Term for Good
Reason, the vesting of the Options will be accelerated as follows:
1. For a termination for Good Reason occurring 1/4 of the Options otherwise vesting
between a Vesting Date of a particular year on the next Vesting Date
and 45 days thereafter
2. For a termination for Good Reason occurring 1/2 of the Options otherwise vesting
between 45 days after a Vesting Date of a on the next Vesting Date
particular year and 135 days after such Vesting Date
3. For a termination for Good Reason occurring 3/4 of the Options otherwise vesting
between 136 days after a Vesting Date of a on the next Vesting Date
particular year and 225 days after such Vesting Date
4. For a termination for Good Reason occurring All of the Options otherwise vesting
between 226 days after a Vesting Date of a on the next Vesting Date
particular year and 315 days after such Vesting Date
5. For a termination for Good Reason occurring All of the Options otherwise vesting on the
between 316 days after a Vesting Date of a next Vesting Date and 1/4 of the Options
particular year and the next Vesting Date otherwise vesting on the Vesting Date next
after the next Vesting Date
(b) Term and Exercise of Option. Subject to the provisions of
the Plan and of this Agreement, the Options may be exercised for up to the
number of vested shares of Common Stock at any time through the expiration date
of June 21, 2009, unless terminated earlier in
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accordance with the provisions of Section 9(c). Once a portion of the Options
has vested, that portion of the Options shall be exercisable until the
expiration date, regardless of whether there has been any prior termination for
any reason of Employee's status as an employee with or consultant to the
Corporation. The Options may be exercised by delivering to the Secretary of the
Corporation (i) a written notice of an intention to exercise signed by the
Employee and specifying the number of shares of Common Stock Employee desires to
purchase, (ii) payment in full of the exercise price for all such shares of
Common Stock in cash, certified check or surrender of shares of Common Stock of
the Corporation having a value equal to the exercise price of the shares of
Common Stock as to which Employee is exercising the Option, provided that such
surrendered shares, if previously acquired by exercise of a stock option of the
Corporation, have been held by Employee at least six months prior to their
surrender. As a holder of the Options, Employee shall have the rights of a
stockholder with respect to the shares of Common Stock issuable upon the
exercise of the Options only after they shall have been issued to Employee upon
the exercise of the Options. Subject to the terms and provisions of this
Agreement and the Plan, the Corporation shall use its best efforts to cause the
shares of Common Stock issuable upon exercise of the Options to be issued as
promptly as practicable after receipt of Employee's written notice of intention
to exercise.
(c) Termination of Options. If Employee is dismissed for Cause
(as defined in Section 7(a) above, the non-vested portion of the Options shall
terminate and expire on the day Employee is notified of his dismissal or on such
earlier date as the Board may determine. If Employee's employment shall
terminate by reason of Disability (as defined in Section 7(b) above), retirement
at age 65 or older, resignation for Good Reason or with the Corporation's prior
consent or expiration of the Initial Term or any Renewal Term, the Options shall
be exercisable but only to the extent they were exercisable at the time of such
termination (in the case of resignation for Good Reason, as provided in Section
9(a)) and only until the the expiration date of the Options granted. If Employee
dies while in the employ of the Corporation or a subsidiary, the Options shall
be exercisable, but only to the extent they were exercisable at the time of
death and only until the the expiration date of the Options. Any such exercise
following Employee's death may be made only by such Employee's personal
representative, unless Employee's will specifically disposes of the Option, in
which case such exercise may be made only by the recipient of such specific
disposition. If Employee's personal representative or the recipient of a
specific disposition under Employee's will shall be entitled to exercise all, or
a portion of, the Options pursuant to the preceding sentence, such
representative or recipient shall be bound by all the terms and conditions of
the Plan and this Agreement which would have applied to Employee's exercise of
the Options (if he had lived).
(d) Non-transferability of Options. The Options shall not be
transferable and may be exercised only by Employee during his lifetime. Any
purported transfer or assignment of the Options shall be void and of no effect,
and shall give the Corporation the right to terminate the Options as of the date
of such purported transfer or assignment. No transfer of an option by Employee
by will or by the laws of descent and distribution shall be effective unless the
Corporation shall have been furnished with written notice thereof, and such
other evidence as the Board may deem necessary to establish the validity of the
transfer and conditions of the Options, and to establish compliance with any
laws or regulations pertaining thereto.
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(e) Plan Provisions to Prevail. The Options shall be subject to
all of the terms and provisions of the Plan. If there is any inconsistency
between the provisions of this Agreement with respect to the Options and the
Plan, the provisions of the Plan shall govern.
(f) Securities Restrictions. Employee understands that the
shares of Common Stock which he may acquire upon the exercise of the Options
will not be registered under the Securities Act of 1933, as amended, or under
state securities laws and that the resale by him of such shares will, therefore,
be restricted. He will be unable to sale or dispose of such shares without
either registration under such Act and compliance with applicable state
securities laws or the availability of an exemption therefrom. Employee
represents and warrants to the Corporation that all shares of Common Stock which
he may acquire upon the exercise of the Options will be acquired by him for his
own account for investment and that he will not sell or otherwise dispose of any
such shares except in compliance with all applicable federal and state
securities laws. Employee agrees that the Corporation may place a legend upon
each certificate representing shares acquired by him upon the exercise of the
Option, which legend will refer to the restrictions on transferability
contained, or referred to, herein.
10. Additional Option Adjustments for Dilutive Issuances.
(a) Formula. In addition to any adjustments to the Options to be
made in accordance with the provisions of Section 10(a) of the Plan, if the
Corporation shall, on or before December 21, 1999, sell or issue shares of
Common Stock or Convertible Securities (as defined herein) in connection with
any equity or debt financing transaction at a price less than the Exercise Price
(collectively, the "Event"), then the Exercise Price shall be adjusted to a new
Exercise Price (calculated to the nearest cent) determined by dividing
(i) an amount equal to (A) the total number of Shares
Outstanding (as defined below) on the date of the Event multiplied by the
Exercise Price in effect on the date of the Event; plus (B) the aggregate of the
amount of all consideration, if any, received by the Corporation in connection
with the Event, by
(ii) the total number of Shares Outstanding immediately
after the Event.
In no event shall any such adjustment be made pursuant to this Section 10(a) if
it would increase the Exercise Price, in effect immediately prior to such
adjustment. Upon each adjustment of the Exercise Price pursuant to this Section
10(a), Employee shall thereafter be entitled to purchase, at the Exercise Price
resulting from such adjustment, the number of shares of Common Stock obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of shares of Common Stock purchasable pursuant hereto immediately
prior to such adjustment, and dividing the product thereof by the Exercise Price
resulting from such adjustment.
(b) Definitions. For purposes of this Section 10, the following
definitions shall apply:
(i) "Convertible Securities" shall mean any indebtedness
or securities convertible into or exchangeable for shares of Common Stock
including but not limited to warrants or options to purchase shares of Common
Stock.
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(ii) "Shares Outstanding" shall mean the aggregate of
all shares of Common Stock outstanding and all Shares issuable upon exercise or
conversion of all outstanding Convertible Securities.
(c) Cash Consideration. In case of the issuance or sale of
additional shares of Common Stock for cash, the consideration received by the
Corporation therefor shall be deemed to be the amount of cash received by the
Corporation for such shares of Common Stock, without deducting therefrom any
compensation or discount paid or allowed to underwriters or dealers or others
performing similar services or for any expenses incurred in connection
therewith.
(d) Non-Cash Consideration. In case of the issuance (otherwise
than upon conversion or exchange of Convertible Securities) or sale of
additional shares of Common Stock or Convertible Securities for a consideration
other than cash or a consideration a part of which shall be other than cash, the
fair value of such consideration as determined by the Board in the good faith
exercise of its business judgment, irrespective of the accounting treatment
thereof, shall be deemed to be the value, for purposes of this Section 10 of the
consideration other than cash received by the Corporation for such securities.
(e) Convertible Securities.
(i) Issuance of Convertible Securities. If the
Corporation shall issue any Convertible Securities, the total maximum number of
shares of Common Stock issuable upon the exercise, conversion or exchange of the
total maximum amount of such Convertible Securities at the time such Convertible
Securities first become convertible or exchangeable shall be deemed to be issued
and to be outstanding for the purpose of this Section 10 and to have been issued
for the sum of the amount (if any) paid for such Convertible Securities and the
amount (if any) payable upon the exercise, conversion or exchange of such
Convertible Securities at the time such Convertible Securities first become
convertible or exchangeable; provided that, subject to the provisions of Section
10(e)(ii), no further adjustment of the Exercise Price shall be made upon the
actual issuance of any such shares of Common Stock or Convertible Securities or
upon the conversion or exchange of any such Convertible Securities.
(ii) Change in Option Price or Conversion Rate. If the
exercise price or rate at which any Convertible Securities referred to in
subsection 10(e)(i) convertible into or exchangeable for shares of Common Stock
shall change at any time (other than under or by reason of provisions designed
to protect against dilution), then, for purposes of any adjustment required by
Section 10(e)(i), the Exercise Price in effect at the time of such event shall
forthwith be readjusted to the Exercise Price that would have been in effect at
such time had such Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate, as the case
may be, at the time initially granted, issued or sold, provided that if such
readjustment is an increase in the Exercise Price, such readjustment shall not
exceed the amount (as adjusted) by which the Exercise Price was decreased
pursuant to Section 10(e)(i) upon the issuance of the Convertible Security. If
the purchase price or the additional consideration (if any) payable upon the
conversion or exchange of any Convertible Securities, or the rate at which any
Convertible Securities are convertible into or exchangeable for shares of Common
Stock, shall be reduced at any time under or by reason of provisions with
respect thereto designed to protect against dilution, then in case of the
delivery of shares of
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Common Stock upon the exercise or upon conversion or exchange of any such
Convertible Security, the Exercise Price then in effect hereunder shall, upon
issuance of such shares of Common Stock, be adjusted to such amount as would
have obtained had such Convertible Security never been issued and had
adjustments been made only upon the issuance of the shares of Common Stock
delivered as aforesaid and for the consideration actually received for such
Convertible Security and the shares of Common Stock, provided that if such
readjustment is an increase in the Exercise Price, such readjustment shall not
exceed the amount (as adjusted) by which the Exercise Price was decreased
pursuant to Section 10(e)(i) upon the issuance of the Convertible Security.
(iii) Termination of Conversion Rights. In the event of
the termination or expiration of any right to purchase shares of Common Stock or
of any right to convert or exchange Convertible Securities, the Exercise Price
shall, upon such termination, be readjusted to the Exercise Price that would
have been in effect at the time of such expiration or termination had such
Convertible Security, to the extent outstanding immediately prior to such
expiration or termination, never been issued, and the shares of Common Stock
issuable thereunder shall no longer be deemed to be Shares Outstanding, provided
that if such readjustment is an increase in the Exercise Price, such
readjustment shall not exceed the amount (as adjusted) by which the Exercise
Price was decreased pursuant to Section 10(e)(i) upon the issuance of the
Convertible Security. The termination or expiration of any right to purchase
shares of Common Stock under any right to convert or exchange Convertible
Securities issued prior to the date of this Agreement shall not trigger any
adjustment to the Exercise Price, but the shares of Common Stock issuable under
such Convertible Securities shall no longer be counted in determining the number
of Shares Outstanding on the date of this Agreement for purposes of subsequent
calculations under this Section 10.
11. Successors and Assigns.
(a) Employee. This Agreement is a personal contract, and the
rights and interests that the Agreement accords to Employee may not be sold,
transferred, assigned, pledged, encumbered, or hypothecated by him. All rights
and benefits of Employee shall be for the sole personal benefit of Employee, and
no other person shall acquire any right, title or interest under this Agreement
by reason of any sale, assignment, transfer, claim or judgment or bankruptcy
proceedings against Employee. Except as so provided, this Agreement shall inure
to the benefit of and be binding upon Employee and his personal representatives,
distributees and legatees.
(b) The Corporation. This Agreement shall be binding upon the
Corporation and inure to the benefit of the Corporation and of its successors
and assigns, including (but not limited to) any Person that may acquire all or
substantially all of the Corporation's assets or business or into or with which
the Corporation may be consolidated or merged. The Corporation's obligations
under this Agreement shall cease, however, if the successor to, the purchaser or
acquirer either of the Corporation or of all or substantially all of its assets,
or the entity with which the Corporation has affiliated, shall assume in writing
the Corporation's obligations under this Agreement (and deliver an executed copy
of such assumption to Employee), in which case such successor or purchaser, but
not the Corporation, shall thereafter be the only party obligated to perform the
obligations that remain to be performed on the part of the Corporation under
this Agreement.
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12. Entire Agreement. This Agreement represents the entire agreement
between the parties concerning Employee's employment with the Corporation and
supersedes all prior negotiations, discussions, understandings and agreements,
whether written or oral, between Employee and the Corporation relating to the
subject matter of this Agreement.
13. Amendment or Modification, Waiver. No provision of this Agreement
may be amended or waived unless such amendment or waiver is agreed to in writing
signed by Employee and by a duly authorized officer of the Corporation. No
waiver by any party to this Agreement of any breach by another party of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of a similar or dissimilar condition or provision at
the same time, any prior time or any subsequent time.
14. Notices. Any notice to be given under this Agreement shall be in
writing and delivered personally or sent by overnight courier or registered or
certified mail, postage prepaid, return receipt requested, addressed to the
party concerned at the address indicated below, or to such other address of
which such party subsequently may give notice in writing:
If to Employee: Xxxxxx X. Xxxxxx
17507 Xxxx de Miel
Xxxxxx Xxxxx Xx, XX 00000
If to the Corporation: Digital LAVA Inc.
00000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxx xxx Xxx, XX 00000
Attention: Chairman
Any notice delivered personally or by overnight courier shall be deemed given on
the date delivered and any notice sent by registered or certified mail, postage
prepaid, return receipt requested, shall be deemed given on the date mailed.
15. Severability. If any provision of this Agreement or the application
of any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid and unenforceable to any extent,
the remainder of this Agreement or the application of such provision to such
person or circumstances other than those to which it is so determined to be
invalid and unenforceable shall not be affected, and each provision of this
Agreement shall be validated and shall be enforced to the fullest extent
permitted by law. If for any reason any provision of this Agreement containing
restrictions is held to cover an area or to be for a length of time that is
unreasonable or in any other way is construed to be too broad or to any extent
invalid, such provision shall not be determined to be entirely null, void and of
no effect; instead, it is the intention and desire of both the Corporation and
Employee that, to the extent that the provision is or would be valid or
enforceable under applicable law, any court of competent jurisdiction shall
construe and interpret or reform this Agreement to provide for a restriction
having the maximum enforceable area, time period and such other constraints or
conditions (although not greater than those contained currently contained in
this Agreement) as shall be valid and enforceable under the applicable law.
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16. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
17. Headings. All descriptive headings of sections and paragraphs in
this Agreement are intended solely for convenience of reference, and no
provision of this Agreement is to be construed by reference to the heading of
any section or paragraph.
18. Withholding Taxes. All salary, benefits, reimbursements and any
other payments to Employee under this Agreement shall be subject to all
applicable payroll and withholding taxes and deductions required by any law,
rule or regulation of and federal, state or local authority.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together constitute one and same instrument.
20. Applicable Law; Arbitration. The validity, interpretation and
enforcement of this Agreement and any amendments or modifications hereto shall
be governed by the laws of the State of California (without regard to its
conflicts of laws provisions), as applied to a contract executed within and to
be performed in such State. The parties agree that any disputes shall be
definitively resolved by binding arbitration before the American Arbitration
Association in Los Angeles, California and consent to the jurisdiction to the
federal court located in Los Angeles, California or, if there shall be no
jurisdiction, to the state courts located in Los Angeles, California, to enforce
any arbitration award rendered with respect thereto. Each party shall choose one
arbitrator and the two arbitrators shall choose a third arbitrator. All costs
and fees related to such arbitration (and judicial enforcement proceedings, if
any) shall be borne by the unsuccessful party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
DIGITAL LAVA INC.
By: /s/ XXXXX XXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Director
/s/ XXXXXX X. XXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxx
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