EXHIBIT 99.1
AGREEMENT
This Agreement made and entered into this 12th day of April, 2001 by
and between ViaVid Broadcasting, Inc., with an address at 0000 Xxxxxxxx Xxxxxx,
Xxxxxxx, XX, X0X 0X0 (the "Company") and Xxxx Xxxxx, with an address at 000
Xxxxx Xxx, Xxxxxx, Xxxx 00000, (the "Contractor").
WHEREAS, the Company is an Internet video and audio broadcasting
company engaged in the business of providing to customers teleconferencing
services, video production and Internet news and other information broadcasting
and dissemination services (herein referred to as the "Company's Business"); and
WHEREAS, in conjunction with the Company's Business, the Company
desires to obtain the services of the Contractor to provide certain services to
the Company in accordance with the terms of this Agreement,
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Engagement of Contractor.
(a) The Company does hereby engage and appoint the Contractor to
provide the Services set forth herein for the compensation herein provided.
(b) The Contractor hereby accepts his appointment and engagement by the
Company to provide the Services set forth herein for the compensation provided
herein.
2. Activities of the Contractor.
(a) During the term of this Agreement (the "Term"), the Contractor
shall undertake for and on behalf of the Company, and to the extent
hereafter requested in writing by the Company, to provide the
following services (the "Services") to the Company. The Contractor
shall be responsible for making introductions, creating strategic
alliances and potential mergers and/or acquisitions and various
marketing activities designed to enhance the growth of the Company
It is understood and agreed that the foregoing activities do not
include services in connection with the offer or sale of securities
in a capital-raising transaction, or services that directly or
indirectly promote or maintain a market for the Company's
securities.
(b) The Contractor shall be an independent Contractor and not an
employee or agent of the Company, and Contractor shall not be
compensated as an employee or be entitled to benefits the Company
pays or makes available to its employees. Contractor shall not have
the authority to enter into any agreement, make any commitment or
incur any obligations or liabilities binding on the Company
without, in each instance, procuring the prior written approval of
the Company. Consultant may engage, directly or indirectly in other
businesses or ventures, not otherwise proscribed under the terms of
this Agreement, provided, however, such activities shall not
preempt the Contractor's availability to perform Services during
the Term.
3. Compensation.
For his services hereunder the Company agrees to compensate the
Contractor by issuing to the Contractor 200,000 shares of the Common Stock of
the Company.
4. Term.
(a) The Term shall commence on the date hereof and shall continue
thereafter for a period of not less than 12 months and therafter until
terminated by either party on not less than five days' prior written notice.
Upon termination of this Agreement, Contractor shall be entitled to receive all
compensation payable through the expiration of the Term. Delete this if he gets
all compensation up front?
(b) If the Contractor dies or becomes disabled so as to be unable to
continue to discharge his duties hereunder, this Agreement shall terminate
thirty (30) days thereafter, provided the Company shall be obligated to pay to
Contractor or his estate all compensation payable through the expiration of the
Term.
5. Confidentiality; Non Competition.
(a) As used herein, the term Confidential Information shall mean and
include the Company's Business, marketing activities and strategies, customers,
product development plans, supplier and vendor information, forecasts,
strategies and financial plans, know-how, information techniques and data,
databases, trade secrets, names and expertise of employees and consultants,
proprietary data, processes and technology.
(b) Contractor agrees that he will keep confidential all of the
Confidential Information provided to him, regardless of form, and will not,
without the express prior written consent of the Company, disclose, reveal, or
communicate all or any portion of the Confidential Information to any other
person, other than to persons (including officers, Directors, employees,
affiliates, and subcontractors) who shall assist Contractor in his providing
services to the Company. Contractor shall inform each of such persons of the
existence of the confidentiality provisions of this Agreement and prior to
disclosure of any Confidential Information to them shall secure their written
agreement (substantially in the form of the confidentiality provisions of this
Agreement) to adhere to the terms thereof. Contractor shall advise the Company
of the names and addresses of all persons to whom he has provided Confidential
Information, the nature of the Confidential Information provided and a copy of
the written agreement entered into with such person.
(c) Contractor agrees that he will not at any time use, directly or
indirectly, in any manner or for any purpose, other than in connection with
providing services to the Company, Confidential Information in any activities
now or hereafter conducted by Contractor.
(d) Contractor further agrees: (i) not to at any time utilize the
Confidential Information, without the express prior written consent of the
Company, in an effort to solicit any customer, subscriber or advertiser, for any
business, information, opinions or otherwise or solicit the employment of any
employee of the Company or of any of its subsidiaries or affiliates through
which it may conduct its activities, and (ii) to promptly return any
Confidential Information (including all copies of such Confidential Information,
none of which shall be retained by Contractor) to the Company following
termination of this Agreement with the Company to provide consulting services to
the Company. Alternatively, upon the request of the Company, Contractor shall
certify that he has permanently deleted from his electronic storage media or is
otherwise unable to access all Confidential Information (without retaining
copies thereof) and shall provide similar certificates from any person to whom
he has provided Confidential Information with the consent of the Company.
(e) Contractor and each person to whom Contractor discloses any
Confidential Information recognizes that money damages would not be a sufficient
and total remedy in the event of breach of this Agreement. The Company shall be
entitled to injunctive relief and to specific performance, in addition to all
other equitable remedies, damages, and all other rights and remedies provided by
law in the event that Contractor violates this Agreement. Contractor shall pay
all expenses incurred by the Company in enforcing this Agreement or seeking
damages or other relief for a breach or threatened breach of this Agreement.
(f) The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
by any party. No course of conduct by any party hereto shall be deemed an
amendment of this Agreement.
(g) Contractor agrees to comply with the following restrictions during
the term of this Agreement and for a period of 18 months after the expiration of
the Term.
(A) Contractor will not, either individually or in conjunction with any
person, as principal, agent, director, officer, employee, investor or in any
other manner whatsoever, directly or indirectly, engage in or become financially
interested in any person engaged in activities in competition with the Business
anywhere in the world (a "Competitive Business"). The foregoing will not prevent
Contractor from holding:
(i) any class of publicly held shares of a company, partnership or
other organization provided that Contractor, alone or in
conjunction with any other affiliated person, will not directly or
indirectly hold more than 5% of the shares of any such class; nor
(ii) any common shares of the Company.
Contractor acknowledges that the Business is Internet based and that a
Competitive Business may be based anywhere in the world. Contractor therefore
agrees that its covenant contained in this paragraph is appropriate in the
circumstances;
(B) Contractor will not, either directly or indirectly, on his own
behalf or on behalf of others, solicit, divert or appropriate or attempt to
solicit, divert or appropriate to any Competitive Business, any Business or
actively sought prospective Business of the Company or any customers with whom
the Company has current agreements relating to the Business of or with whom
Contractor has dealt, or with whom Contractor has supervised negotiations or
business relations, or about whom Contractor has acquired Confidential
Information in the course of its employment;
(C) Contractor will not, either directly or indirectly, on his own
behalf or on behalf of others, solicit, divert or hire away, or attempt to
solicit, divert, or hire away, any independent contractor or any person employed
by the Company or persuade or attempt to persuade any such individual to
terminate his or her contract or employment with the Company.
(D) Upon termination of this Agreement, in addition to the Contractor's
obligations under paragraph 5(d) above, Contractor will immediately return to
the Company all Company property in his possession, including all written
information, tapes, discs or memory devices and copies thereof, and any other
material on any medium in his possession or control pertaining to the Business
of the Company, without retaining any copies or records of any Confidential
Information whatsoever. Contractor will immediately return any keys, pass cards,
identification cards or other property belonging to the Company.
6. Miscellaneous.
(a) Waiver; Consents. No consent, approval or waiver, express or
implied, by either party hereto, to or of any breach or default by the other
party in the performance by the other party of its obligations hereunder shall
be deemed or construed to be a consent or waiver to or of any other breach or
default in the performance by such other party of the same or any other
obligations of such other party or to declare the other party in default,
irrespective of how long such failure continues, shall not constitute a general
waiver by such party of its rights under this Agreement, and the granting of any
consent or approval in any one instance by or on behalf of the Company shall not
be construed to waive or limit the need for such consent in any other or
subsequent instance.
(b) Governing Law. This Agreement and all matters arising thereunder
shall be governed by the laws of the Province of British Columbia.
(c) Successors, etc. This Agreement shall inure to the benefit of and
be binding upon each of the parties hereto and their respective heirs,
successors and permitted assigns.
(d) Subcontracts. The Contractor shall not delegate or subcontract any
duties or obligations arising hereunder without having received the prior
written approval of the Company. Any such delegation or subcontract shall be
made subject to the terms of this Agreement and the Contractor shall require the
subcontractor, to acknowledge such terms in writing at the time the subcontract
agreement is executed and that the Company may withhold its written approval at
its discretion. No such delegation or subcontracting shall relieve the
Contractor from any of its obligations under this Agreement and a subcontractor
shall, as between the Company and the Contractor, be deemed to be the agent of
the Contractor. In no event shall the Company have any financial or other
liability to any subcontractor, and Contractor agrees to indemnify and hold
harmless the Company, its officers, Directors, employees and agents from any
claim that may be asserted by any subcontractor against any of such persons
arising out of performing any service to the Company under this Agreement or
otherwise.
(e) Assignment. This Agreement may not be assigned by any party except
with the written consent of the other party hereto.
(f) Entire Agreement and Modification. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior agreements
and undertakings, whether oral or written, relative to the subject matter
hereof. To be effective, any modification of this Agreement must be in writing
and signed by the party to be charged thereby.
(g) Headings. The headings of the sections of this Agreement are
inserted for convenience of reference only and shall not in any manner affect
the construction or meaning of anything herein contained or govern the rights or
liabilities of the parties hereto.
(h) Notices. All notices, requests and communications required or
permitted hereunder shall be in writing and shall be sufficiently given and
deemed to have been received upon personal delivery or, if mailed, upon the
first to occur of actual receipt or forty-eight (48) hours after being placed in
the mail, postage prepaid, registered or certified mail, return receipt
requested, respectively addressed to the Company as follows:
The Company:
ViaVid Broadcasting, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0
The Contractor:
Xxxx Xxxxx
000 Xxxxx Xxx
Xxxxxx, XX 00000
or such other address as may be specified in writing to the other party, but
notice of a change of address shall be effective only upon the actual receipt.
(i) Further Assurances. The parties hereto agree from time to time
after the execution hereof to make, do, execute or cause or permit to be made,
done or executed all such further and other lawful acts, deeds, things, devices
and assurances in law whatsoever as may be required to carry out the true
intention and to give full force and effect to this Agreement.
(j) Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed to be an original and all of which
will together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
VIAVID BROADCASTING, INC.
Per:
--------------------------------
Authorized Signatory
/s/ Xxxx Xxxxx
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XXXX XXXXX
