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EXHIBIT 10.16
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
entered into as of October 28, 1996, between Graphix Zone, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxx, Xx. ("Employee").
RECITALS
WHEREAS, Employee and the Company had previously entered in an
Employment Agreement dated April 18, 1996 (the "Old Agreement"), whereby
Employee was employed as President of the Company; and
WHEREAS, Employee, with the consent of the Board of Directors of the
Company, has resigned as President of the Company; and
WHEREAS, the parties desire that Employee remain with the Company to
assist management in various ways.
NOW, THEREFORE, in consideration of the foregoing premises, the
following mutual covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each of the parties hereto, the parties hereto agree, intending
to be legally bound, that this Amended and Restated Employment Agreement shall
supersede and replace the Old Agreement in its entirety, and shall henceforth
read as follows:
AGREEMENT
1. SERVICES.
(a) The Company hereby employs Employee as an assistant to
management of the Company and Employee hereby accepts such employment on the
terms and conditions set forth herein. In this regard, Employee shall perform
and discharge well and faithfully the duties and responsibilities that shall be
assigned to him from time to time by the Company in connection with the conduct
of its business, including special projects which may be mutually agreed upon
from time-to-time, consistent with the duties customarily performed by an
employee of similar stature, and shall devote approximately one-half (1/2) of
normal working hours to such duties and responsibilities.
(b) Employee is not and shall not be engaged directly or
indirectly in any other business activity, or previously have contracted to
perform such activity at a future date which would prevent the performance of
the obligations hereunder or involve activities which would result in a breach
of any provision of this Agreement.
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2. TERM.
(a) The term of this Agreement shall begin on the date
hereof and shall cease and terminate upon the earliest of (i) the close of
business on April 30, 1997; (ii) the death of Employee; (iii) termination by the
Company for "cause" (as defined in Section 2(b)) or otherwise; or (iv)
termination by mutual agreement between the parties.
(b) As used in this Section 2, "cause" shall mean and be
limited to one or more of the following occurrences with respect to Employee:
(i) the willful and continued failure by Employee to
substantially perform his duties with the Company (other than
any such failure resulting from his incapacity due to physical
or mental illness) after a written demand for a substantial
performance is delivered to Employee by the Board of Directors
of the Company which specifically identifies the manner in which
the Board of Directors believes that Employee has not
substantially performed his duties; or
(ii) gross negligence or willful misconduct of Employee
in the performance of his duties.
(c) The term of this Agreement shall automatically be
extended for successive six (6) month terms unless either party gives written
notice to the other at least thirty (30) days prior to the end of the term (or
any extended term) that such party desires to terminate this Agreement at the
end of the term (or any extended term).
3. COMPENSATION.
(a) The Company shall pay to Employee a base salary of
Thirty Thousand Dollars ($30,000) per 6 month period, payable in semi-monthly
installments.
(b) Employee shall receive additional compensation from
time-to-time at the discretion of the Company's Board of Directors.
(c) If Employee's employment pursuant to this Agreement is
terminated by the Company other than for "cause" (as defined in Section 2
hereof), the Company shall continue to pay Employee his base salary until the
end of the term (or any extended term), plus any amounts accrued through the end
of the term (or any extended term) as additional compensation referred to in
clause (b) above.
(d) During the term of his employment, Employee shall be
entitled to participate in employee benefit plans or programs of the Company, if
any, to the extent his position, tenure, salary, age, health and other
qualifications makes him eligible to
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participate, subject to the rules and regulations applicable thereto; provided,
however, that Employee shall be entitled to participate in the Company's health
insurance program to the same extent as a full-time employee for the remainder
of his life, and the Company shall pay all premiums with respect thereto.
(e) Employee shall not be entitled to paid vacation, per
se; however, because Employee will essentially be a "half-time" employee, he
shall not be required to follow any particular schedule and work a particular
number of hours, other than that, during the term of this Agreement, he shall
devote a number of hours to the Company's business which shall be approximately
equal to one-half (1/2) of the hours a regular, full-time employee would devote
during a time period equal to the term.
4. EXPENSES. The Company will reimburse Employee for direct
out-or-pocket expenses properly incurred by him in his performance of this
Agreement and provided that a written accounting is made to the Company by
Employee, and as approved in advance by the Company's President.
5. CONFIDENTIALITY.
(a) Employee acknowledges that as a consequence of his
relationship with the Company, he has been and will continue to be given access
to confidential information which may include the following types of
information: financial statements and related financial information with
respect to the Company, trade secrets, computer programs, certain methods of
operation, procedures, improvements, systems, customer lists, supplier lists
and specifications and other private and confidential materials concerning the
Company's business (collectively, "Confidential Information"). Employee agrees
that he shall maintain any Confidential Information in strictest confidence and
shall not disclose any Confidential Information to third parties during the
term of this Agreement and after the termination hereof, however such
termination shall occur, unless previously approved by the Board of Directors
of the Company in writing.
(b) Notwithstanding the foregoing, nothing herein shall be
construed as prohibiting Employee from disclosing any Confidential Information
(i) which, at the time of disclosure, Employee can demonstrate either was in
the public domain and generally available to the public by publication or
otherwise through no act of Employee; (ii) which Employee can show was received
by him after the termination of this Agreement from a third party who did not
acquire it directly or indirectly from the Company under an obligation of
confidence; (iii) to the extent that Employee can reasonably demonstrate such
disclosure is required by law or in any legal proceeding, governmental
investigation, or other similar proceeding.
6. PREVIOUS EMPLOYMENT. Employee hereby represents that
Employee's execution of this Agreement, employment with the Company and
performance of Employee's proposed duties to the Company in the development of
its business will not violate any obligations Employee may have to any former
employer, including, but not
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limited to, any obligations to keep confidential any proprietary or
confidential information of any such employer. Employee has not entered into,
and Employee will not enter into, any agreement which conflicts with or would,
if performed by Employee, cause Employee to breach this Agreement. Employee
hereby represents, warrants and covenants to the Company, that in the course of
performing Employee's duties to the Company, Employee will not utilize any
proprietary or confidential information of any former employer.
7. NO WAIVER; AMENDMENTS, ETC. The failure of any party to insist
upon the strict performance of any of the terms, conditions or provisions of
this Agreement shall not be construed as a waiver or relinquishment of future
compliance therewith, and said terms, conditions and provisions shall remain in
full force and effect. No interpretation, amendment, changes, or other
modifications or waivers of any of the provisions of this Agreement shall be
binding upon the Company or Employee unless in writing and signed by the person
to be bound.
8. RIGHTS, OBLIGATIONS AND ASSIGNMENT. the rights and obligations
of the Company under this Agreement shall inure to the benefit of, and shall be
binding upon, its successors and assigns. The duties of Employee to any such
successor entity shall not be greater than the duties performed for the Company
prior to such succession. Employee is prohibited from making any assignment of
this Agreement.
9. ENTIRE AGREEMENT. This Agreement embodies the entire
understanding between the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements and understandings of the parties in
connection therewith.
10. SEVERABILITY. If any of the provisions of this Agreement shall
for any reason be adjudged by any court of competent jurisdiction to be invalid
or unenforceable, such judgment shall not affect, impair or invalidate the
remainder of this Agreement, but shall be confined in its operations to the
provision of this Agreement directly involved in the controversy in which such
judgment shall have been rendered.
11. NOTICES. Notices, other communications or deliveries required
or permitted under this Agreement shall be in writing directed as follows:
If to the Company, at: Graphix Zone, Inc.
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Chairman of the Board
If to Employee, at: Xx. Xxxxxxx X. Xxxxxxxxx, Xx.
00 Xxx Xxxxx Xxx
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
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The parties may designate by notice to each other any new
address for the purpose of this Agreement. Unless otherwise specified in this
Agreement, all notices shall be effective when mailed postage prepaid by
registered or certified mail, return receipt requested.
12. APPLICABLE LAW. This Agreement shall be interpreted, enforced
and construed in accordance with the laws of the State of California.
13. HEADINGS. The captions and headings contained in this
Agreement are for reference purposes only and shall not affect the
interpretation or meaning of this Agreement.
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14. ATTORNEYS' FEES. In any dispute related to this Agreement, the
prevailing party shall, in addition to all damages, be entitled to recover
reasonable attorneys' fees and costs.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Employment Agreement as of the date and year first above written.
COMPANY:
GRAPHIX ZONE, INC.
By: /s/ X. X. XXXXXX
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Xxxxxx X. Xxxxxx,
Chairman of the Board
COMPANY:
By: /s/ XXXXXXX X. XXXXXXXXX, XX.
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Xxxxxxx X. Xxxxxxxxx, Xx.
