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Exhibit 10.8
EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of July 16, 1999, by and
between Inland Entertainment Corporation, a Utah corporation (the "Company") and
Xxxxxx Xxxxxxx, an individual (the "Employee").
RECITALS
A. The Employee, prior to the date hereof, has been the President and
a significant member of Typhoon Capital Consultants, LLC, a California Limited
Liability Company doing business as xxxxxxx-xxxxxxxx.xxx ("Typhoon Capital").
B. Pursuant to the Asset Purchase Agreement by and among the Company,
Typhoon Capital and the Employee and dated of even date herewith and the
agreements related thereto (collectively, the "Asset Purchase Agreement"), the
Company has acquired certain of the assets of Typhoon Capital.
C. The Company desires to employ the Employee upon the terms and
conditions set forth in this Agreement.
D. The Employee is willing to enter into this Agreement with respect
to the Employee's employment and services upon the terms and conditions set
forth in this Agreement.
AGREEMENT
In consideration of the provisions set forth in this Agreement, the
parties agree as follows:
1. Employment; Duties and Obligations
1.1 Employment. The Company hereby employs the Employee in the
capacity of Vice President, Investor Relations Officer of the Company and
President of a newly-formed, non-incorporated division of the Company referred
to as the Internet Consulting Division (the "IC Division") each for the term of
this Agreement, and the
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Employee hereby accepts such employment upon the terms and conditions
hereinafter set forth.
1.2 Service to the Company. The Employee shall have primary
responsibility for, among other things, managing and directing the day-to-day
(a) investor relations activities of the Company and (b) business of the IC
Division, in each case subject to applicable law and the policies of the
Company's Board of Directors.
1.3 Devotion of Time to the Business. Except with respect to the
activities contemplated in the Asset Purchase Agreement relating to the winding
up of the business affairs of Typhoon Capital, the Employee shall devote his
entire professional time and best efforts to the business of the Company and its
subsidiaries, and shall not during the term of this Agreement engage, directly
or indirectly, in any other business activities. This Agreement shall not be
interpreted to prohibit the Employee from making passive personal investments or
conducting private business affairs if those activities do not, in the sole
judgment of the Company, materially interfere with, or may be deemed to be in
conflict with, the services required under this Agreement. The Employee shall
not, directly or indirectly, acquire, hold, or retain any interest in any
business (a) competing with or similar in nature to the business of the Company
or any of its subsidiaries or affiliates or (b) for which the Company performs
services or otherwise has an interest.
2. Term. The term of this Agreement shall commence as of July 16, 1999
and shall continue in effect until July 16, 2000 (the "Term"). In the event that
the Company shall provide written notice of termination to the Employee prior to
the end of the Term, the Employee will be entitled to the severance benefits set
forth in Section 4.3 herein. In the event that the Employee shall, prior to the
end of the Term, provide written notice of termination to the Company pursuant
to Section 4.4, the Employee shall be entitled to the severance benefits set
forth in Section 4.4 herein. Upon the payment of such severance benefits under
Sections 4.3 or 4.4 herein, the Company and Employee shall be relieved from any
liability for the expired term of this Agreement.
3. Compensation
3.1 Base Salary. For all services rendered by the Employee under
this Agreement, the Company (or its designee) shall pay the Employee an annual
base salary related to the fiscal year of the Company (the "Base Salary"),
payable in accordance with the regular payroll practices of the Company (but at
least once a month), at a rate determined in accordance with this Agreement.
3.1.1 Initial Base Salary. The initial Base Salary to be paid
hereunder is $180,000 per annum or $15,000 per month, in all cases prorated
downward for services rendered for a period of less than a calendar month.
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3.1.2 Adjustments to Base Salary. The Compensation Committee of
the Board (or in the absence of a compensation committee, the Board committee
performing equivalent functions or the entire Board of Directors of the Company)
may review the Base Salary of the Employee and determine whether to adjust it;
provided however that the Base Salary for any fiscal year shall not be less than
the initial Base Salary to be paid to the Employee hereunder.
3.2 Performance Bonus. The Compensation Committee (or in the absence
of a compensation committee, the Board committee performing equivalent functions
or the entire Board of Directors of the Company) may evaluate the Employee's
performance at the end of each fiscal year commencing with the Company's fiscal
year ending June 30, 2000, or at such other time(s) as such committee (or the
Board, as the case may be) shall deem it to be appropriate, and determine
whether the Employee's performance merits payment of a performance bonus to the
Employee. The performance bonus is wholly discretionary.
3.3 Long-Term Incentive Compensation. The Employee shall be eligible
to participate in all of the Company's long-term incentive compensation plans,
including, but not limited to, any Company stock option, restricted stock or SAR
plan (with the exception of those plans only applicable to non-employee
directors). As an inducement essential to the Employee entering into this
Agreement, the Compensation Committee of the Board has (a) granted on July 16,
1999 a nonstatutory stock option to purchase 262,500 shares of the Company's
common stock, $.001 par value per share ("Common Stock"), at an exercise price
per share equal to the fair market value on the date of grant and (b) agreed to
grant in the future a nonstatutory stock option to purchase 240,000 shares of
Common Stock, at an exercise price of $10.00 per share on the date that the fair
market value (as defined in the Company's 1995 Stock Option Plan, as amended) of
a share of Common Stock is $10.00, provided, however, that to be granted such
option the Employee must be an employee of the Company or one of its
subsidiaries on such date of grant, in each case pursuant to the terms
established by the Compensation Committee.
3.4 Other Benefits. The Employee shall be eligible to participate
in, and be covered by, all such other employee benefits generally provided to an
executive officer of the Company. Such benefits include but are not limited to,
health (including coverage for family members subject to plan limitations), life
and disability insurance, vacation and sick leave.
3.5 No Prohibition as to Other Compensation. Nothing herein shall be
deemed to preclude the Company, or any of the Company's subsidiaries, from
awarding additional compensation or benefits to the Employee during the term of
this Agreement, upon approval of the Compensation Committee (or in the absence
of a compensation
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committee, the Board committee performing equivalent functions or the entire
Board of Directors of the Company), whether in the form of raises, bonuses,
additional fringe benefits or otherwise.
3.6 Expenses. The Company, in accordance with its policy (which may
be modified from time to time) shall promptly reimburse the Employee for all
expenses incurred by the Employee in relation to the business, including,
without limitation, expenses pertaining to travel, lodging, meals,
entertainment, seminars and periodicals. The Employee shall provide the Company
or the applicable subsidiary of the Company, as the case may be, with reasonable
documentation showing the business purpose and cost of each item of expense
submitted for reimbursement.
3.7 Tax Withholding. The Company and, to the extent applicable, any
other subsidiary of the Company, shall have the right to deduct and withhold
from the compensation payable to the Employee hereunder such amounts as may be
necessary to satisfy such corporation's obligations to federal, state and local
authorities to withhold taxes from compensation otherwise payable to the
Employee.
4. Termination
4.1 Termination for Cause. The Company may terminate this Agreement
and discharge the Employee for cause at any time following any applicable cure
period (if any is specifically designated in this Section 4.1) upon written
notice specifying the reasons for such termination. For purposes of this
Agreement, "cause" shall mean (a) the failure to follow the reasonable
instructions of the Board of Directors of the Company or the Executive Committee
of the Board of Directors, and, if a breach should occur, failure to cure such
breach within thirty (30) days after written notice thereof from the Company, as
the case may be, (b) the material breach of any term of this Agreement or the
Asset Purchase Agreement and failure to cure such breach within thirty (30) days
after written notice thereof from the Company, as the case may be, or (c) the
misappropriation of assets of the Company or any subsidiary of the Company by
the Employee resulting in a material loss to such entity. The Employee shall not
be entitled to receive any further payments or other benefits under this
Agreement after the expiration of 30 days from the date of such notice, other
than benefits which have previously vested in the Employee. The exercise of the
right of the Company to terminate the employment of the Employee pursuant to
this Section 4.1 shall not abrogate the rights and remedies of the terminating
party in respect of the breach or misappropriation giving rise to such
termination.
4.2 Termination Upon Death. This Agreement shall automatically
terminate upon the death of the Employee, and the Employee shall not be entitled
to receive any further payments or benefits under this Agreement, except that
the Company
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and/or its subsidiaries, as the case may be, shall pay to the Employee's legal
representative the full salary for the month in which he dies and such legal
representative shall be entitled to receive those benefits which have previously
vested in the Employee.
4.3 Termination by the Company Without Cause. In the event the
Company shall terminate the Employee without cause during the Term, the
Employee's term of employment shall terminate on the close of business on the
day such notice is given (the "Termination Date"). In the event of such
termination, the Company shall (a) pay to the Employee within 180 days of such
termination, an aggregate amount of $200,000 in cash as a severance benefit (b)
transfer or assign, in each case with the appropriate release of liability
agreements, to the Employee such furniture and office equipment listed on
Exhibit A to the Asset Purchase Agreement without any further consideration from
the Employee (c) to the extent that the Company is the lessee or Sublessee under
the 3420 Lease (hereinafter defined), upon execution by Xxxxxxx Properties,
L.P., a California Limited Partnership (or its successor-in-interest) and the
Employee of an Assignment and Assumption of Lease and Release of Liability
Agreement in form and substance acceptable to the Company, assign to the
Employee that certain Lease dated March 22, 1999 of certain premises described
in said Lease and otherwise known as 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxx Xxxxxx, Xxxxxxxxxx 00000 (the "3420 Lease"), (d) for a maximum period of
six (6) months commencing with the first complete month after the Employee's
termination date pay to the Employee as an additional severance benefit, 10% of
the monthly net revenues received by the Company and solely attributable to
services rendered during such six months on internet consulting accounts
originated by the IC Division and which the Employee and the Company agreed in
writing at the time of origination that should be included in accounts upon
which this portion of the severance benefit be based (the "Designated IC
Accounts"), such amounts to be payable to the Employee within 15 days after the
end of the month in which the Company received the payment, and (e) consistent
with applicable securities laws and with the approval of the applicable issuer
whose consent shall not be unreasonably withheld, transfer to the Employee
without further consideration to the Employee, 10% of any equity securities
(including transferable vested options or warrants), paid to the Company or the
IC Division with respect to any Designated IC Accounts.
4.4 Termination By the Employee. Notwithstanding anything to the
contrary herein, this Agreement may be terminated by the Employee upon 60 days
prior written notice. In the event that the Employee elects to terminate on or
before the expiration of the Term (which would require written notice no later
than May 17, 2000), the Company shall (a) transfer to the Employee such
furniture and office equipment listed on Exhibit A to the Asset Purchase
Agreement without any further consideration from the Employee (b) to the extent
that the Company is the lessee or sublessee under the 3420 Lease, upon execution
by Xxxxxxx Properties, L.P., a California Limited Partnership (or its
successor-in-interest) and the Employee of an Assignment and Assumption of Lease
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and Release of Liability Agreement in form and substance acceptable to the
Company, assign to the Employee the 3420 Lease, (c) for a maximum period of six
(6) months commencing with the first complete month after the Employee's
termination date pay to the Employee as a severance benefit, 10% of the monthly
net revenues received by the Company and solely attributable to services
rendered during such six months on the Designated IC Accounts, such amounts to
be payable to the Employee within 15 days after the end of the month in which
the Company received the payment, and (d) consistent with applicable securities
laws and with the approval of the applicable issuer whose consent shall not be
unreasonably withheld, transfer to the Employee without further consideration to
the Employee, 10% of any equity securities (including transferable vested
options or warrants), paid to the Company or the IC Division with respect to any
Designated IC Accounts.
5. Resignation as Director and Officer. In the event of any termination
or resignation pursuant to Sections 4.1, 4.3 or 4.4, the Employee shall be
deemed to have resigned voluntarily as an officer and director of the Company
(and of any subsidiaries of the Company) if he was serving in any of such
capacities at the time of termination.
6. Inventions and Improvements.
(a) The Employee hereby assigns to the Company (or, at the
discretion of the Company, any of its subsidiaries that it designates) an
exclusive right to all inventions, discoveries, domain names, ideas and
improvements made by him, whether alone or jointly with others, relevant to the
subject matter of his employment, prior to the date of his employment hereunder.
(b) In carrying out research, developmental and productive
activities for the Company and its subsidiaries, the Employee shall accurately
record the precise nature thereof and the data derived therefrom, and all such
data and records shall be and remain the sole and exclusive property of the
Company and its subsidiaries.
(c) The Employee hereby recognizes as the exclusive property of the
Company (and, as appropriate, its subsidiaries) and hereby assigns to the
Company (and, as appropriate, its subsidiaries) without further consideration:
(i) all inventions, discoveries, domain names, ideas, copyright
rights, maskworks, improvements and any other intellectual property made,
conceived or discovered, by the Employee during the term of this Agreement,
whether by himself or jointly with others (whether or not employees of the
Company or its subsidiaries) and whether or not made at the Company's premises
or during working hours, relating or pertaining in any way to the kind of
business or any tests, research or development carried on by the Company, or any
subsidiary or affiliate of the Company; and
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(ii) all of his right, title and interest in and to each
application for Letters Patent of the United States or of any foreign country
that he either alone or jointly with others (whether or not employees of the
Company or its subsidiaries), may hereafter file with respect to any such
invention, discovery, domain names, idea or improvement and each patent that may
be issued thereon.
(d) The Employee agrees to execute any assignments to the Company or
its nominee of his rights, title and interest in any such inventions,
discoveries, ideas, domain names, copyright rights, maskworks, improvements, and
any other intellectual property, and any other instruments and documents
requisite or desirable in applying for and obtaining patents, trademarks or
copyrights, at the cost of the Company with respect thereto in the United States
and all foreign countries as and when requested by the Company. The Employee
further agrees, whether in the employ of the Company (or its subsidiaries) or
not, to cooperate to the extent and in the manner requested by the Company in
the prosecution or defense of any patent claims or any litigation or other
proceedings involving any inventions, discoveries or improvements covered by
this Agreement, but all expenses thereof shall be paid by the Company or one of
its subsidiaries. Any invention, discovery, domain names, idea or improvement
within the scope of this Section 6 shall be disclosed promptly in writing to the
Board of Directors of the Company.
(e) In the event the Company is unable to secure the Employee's
signature on any document or documents needed to apply for or prosecute any
patent, copyright or other right or protection relating to an invention,
discovery, idea, domain name, or improvement, whether because of his physical or
mental incapacity or for any other reason whatsoever, the Employee hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as his agent and attorney-in-fact, to act for and in his behalf and
stead to execute and file any such application or applications and to do all
other lawfully permitted acts to further the prosecution and issuance of
patents, copyrights, or similar protections thereon with the same legal force
and effect as if executed by him.
7. No Conflict With Other Employment Agreements. The Employee represents
and warrants that there are no other agreements or duties on the Employee's part
now in existence to assign inventions, discoveries, domain names, ideas, or
improvements to any party other than the Company or one of its subsidiaries. The
Employee will not disclose to the Company or one of its subsidiaries or induce
the Company or one of its subsidiaries to use any confidential information or
material that he is now or shall become aware of that belongs to a former
employer (other than Typhoon Capital) or any party other than the Company or one
of its subsidiaries.
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8. Confidential Information; Covenant Not to Hire Employees. The
Employee acknowledges that in the course of his employment hereunder he will
have access and be made privy to the marketing, business and financial plans and
trade secrets of the Company and the Company's subsidiaries and affiliates (for
purposes of Sections 8 and Section 10 herein, collectively and, as the case may
be, each such subsidiary or affiliate individually, referred to as the
"Company") and will have access to information of the Company important to its
operations. The Employee recognizes that it is vital to the Company's business
that such plans and secrets not be disclosed to or used by others, and that the
Company's relations with its employees not be disrupted. The Employee hereto
covenants and agrees to execute, contemporaneously herewith, a Confidentiality
and Non-Disclosure Agreement substantially in the form attached hereto as
Exhibit A. The Employee shall not at any time during the term of this Agreement
and for a period of one year after such termination (a) employ any individual
who was employed by the Company or any of its affiliates, during the one (1)
year period commencing one (1) year prior to the date Employee's employment
terminates, or (b) in any way, cause, influence, or participate in the
employment of any such individual by anyone else during said period; provided,
however, that this covenant not to hire set forth in this sentence shall not
apply to the following employees: Xxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxx Xxxx and
Xxxxx Xxxxxxxx.
9. Securities Trading Policy. The Employee hereto covenants and agrees
to execute, contemporaneously herewith, a copy of the Policy on Trading in
Company Securities by Company Personnel attached hereto as Exhibit B.
10. Injunctive Relief. If there is a breach or threatened breach of the
provisions of Sections 8 or 9 of this Agreement, the Company shall be entitled
to an injunction restraining the Employee from such breach. Nothing herein shall
be construed as prohibiting the Company from pursuing any other remedies for
such breach of threatened breach.
11. Authority. The Company represents and warrants to the Employee that
the performance of this Agreement and consummation of the transactions
contemplated hereby have been duly authorized by all requisite action and that
the individual executing this Agreement on behalf of the Company has the power
and authority to execute this Agreement.
12. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be given by hand delivery, facsimile,
telecopy, overnight courier service, or by United States certified or registered
mail, return receipt requested. Each such notice, request, demand or other
communication shall be effective (a) if delivered by hand or by overnight
courier service, when delivered at the address specified in this Section; (b) if
given by facsimile or telecopy, when such facsimile or
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telecopy is transmitted to the facsimile or telecopy number specified in this
Section and confirmation is received; and (c) if given by certified or
registered mail, five days after the mailing thereof.
Address for notices (unless and until written notice is given of
any other address):
If to the Company:
Inland Entertainment Corporation.
00000 Xxx Xxx Xxxxx Xxxxx, #000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx Xx. Xxxxxx,
General Counsel and Secretary
Fax: (000) 000-0000
If to the Employee:
Xx. Xxxxxx Xxxxxxx
0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
13. Further Documents and Acts. Each of the parties hereto agrees to
cooperate in good faith with the other and to execute and deliver such further
instruments and perform such other acts as may be reasonably necessary or
appropriate to consummate and carry into effect the transactions contemplated
under this Agreement.
14. Financial Reporting. Any computation pertaining to the Company's
financial affairs to be made hereunder or referenced herein shall be based on
generally accepted accounting principles, applied on a consistent basis.
15. Attorneys' Fees. In any action, litigation or proceeding between the
parties arising out of or in relation to this Agreement, the prevailing party in
such action shall be awarded, in addition to any damages, injunctions or other
relief, and without regard to whether or not such matter be prosecuted to final
judgment, such party's costs and expenses, including reasonable attorneys' fees.
16. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California without regard to the
conflicts of law principles thereof.
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17. Venue. The parties hereby irrevocably and unconditionally consent to
submit to the exclusive jurisdiction of the courts of the State of California,
County of San Diego, and/or the United States District Court for the Southern
District of California for any actions, suits, controversies or proceedings
arising out of or relating to this Agreement and the transactions contemplated
hereby (and the parties agree not to commence any action, suit or proceeding
relating thereto except in such courts), and further agree that service of any
process, summons, notice or document by U.S. registered mail to the respective
addresses set forth above shall be effective service of process for any action,
suit or proceeding brought against the parties in any such court. The parties
hereby irrevocably and unconditionally waive any objection to the laying of
venue of any action, suit, controversies or proceeding arising out of this
agreement or the transactions contemplated hereby, in the courts of the State of
California, County of San Diego and/or the United States District Court for the
Southern District of California, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient or improper forum.
18. Amendments/Waiver. This Agreement may be amended, supplemented,
modified and/or rescinded only through an express written instrument signed by
all the parties or their respective successors and assigns. Any party may
specifically and expressly waive in writing any portion of this Agreement or any
breach hereof, but no such waiver shall constitute a further or continuing
waiver of any preceding or succeeding breach of the same or any other provision.
The consent by one party to any act for which such consent was required shall
not be deemed to imply consent or waiver of the necessity of obtaining such
consent for the same or similar acts in the future.
19. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
20. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity
and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired or affected, it
being intended that all of the rights and privileges shall be enforceable to the
fullest extent permitted by law.
21. Entire Agreement. This Agreement contains the entire and complete
understanding between the parties concerning its subject matter and all
representations, agreements, arrangements and understandings between or among
the parties, whether oral or written have been fully merged herein and are
superseded hereby.
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22. Remedies. All rights, remedies, undertakings, obligations, options,
covenants, conditions and agreements contained in this Agreement shall be
cumulative and no one of them shall be exclusive of any other.
23. Successors. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective heirs, legatees, legal
representatives, personal representatives, successors and assigns.
24. Interpretation. The language in all parts of this Agreement shall be
in all cases construed simply according to its fair meaning and not strictly for
or against any party. Whenever the context requires, all words used in the
singular will be construed to have been used in the plural, and vice versa, and
each gender will include any other gender. The captions of the Sections of this
Agreement are for convenience only and shall not affect the construction or
interpretation of any of the provision herein.
25. Miscellaneous. Each provision of this Agreement to be performed by a
party hereto shall be deemed both a covenant and condition, and shall be a
material consideration for the other party's performance hereunder, and any
breach thereof by the party shall be deemed a material default hereunder. The
recitals and all other documents referenced in this Agreement are fully
incorporated into this Agreement by reference. Unless expressly set forth
otherwise, all references herein to a "day" shall be deemed to be a reference to
a calendar day. Unless expressly stated otherwise, cross-references herein shall
refer to provisions within this Agreement, and shall not be deemed to be
references to the overall transaction or to any other document. Time is of the
essence in the performance of this Agreement.
EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT AND UNDERSTANDS
ITS CONTENTS. EMPLOYEE ALSO ACKNOWLEDGES THAT THE COMPANY HAS INFORMED HIM THAT
THIS AGREEMENT DOES NOT REQUIRE EMPLOYEE TO ASSIGN TO THE COMPANY ANY INVENTION
WHICH QUALIFIES FULLY UNDER THE PROVISIONS OF SECTION 2870 OF THE CALIFORNIA
LABOR CODE, A COPY OF WHICH IS ATTACHED AS EXHIBIT C TO THIS AGREEMENT. BY
SIGNING THIS AGREEMENT, EMPLOYEE AGREES TO BE BOUND BY ALL OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT.
(Signature page follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMPANY: INLAND ENTERTAINMENT CORPORATION,
a Utah corporation
By: /s/ L. XXXXXX XXXXX, XX
-----------------------------------------
L. Xxxxxx Xxxxx, XX
Chairman of the Board, Chief
Executive Officer and President
EMPLOYEE: /s/ XXXXXX XXXXXXX
-----------------------------------------
Xxxxxx Xxxxxxx
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EXHIBIT A
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
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EMPLOYEE AGREEMENT REGARDING CONFIDENTIALITY
AND NON-DISCLOSURE
In return for new or continued employment by INLAND ENTERTAINMENT
CORPORATION (the "Company"), I acknowledge and agree that:
1. DEFINITION. For purposes of this Agreement, unless otherwise noted,
all references to the "Company" shall include the Company and/or all of its
direct and indirect subsidiaries.
2. OBLIGATIONS OF CONFIDENTIALITY. I will maintain in confidence and
will not, either during or at any time after the term of my employment without
the prior express written consent of the Company, communicate or disclose to, or
use for the benefit of myself or any other person, firm, association or
corporation (including, without limitation, any subsequent employer) any
proprietary or confidential information, trade secret or know-how belonging to
the Company ("Proprietary Information"), whether or not it is in written or
permanent form, except to the extent required to perform duties on behalf of the
Company in my capacity as an employee. Such Proprietary Information includes,
but is not limited to, techniques, processes, plans or methods of the Company in
developing, marketing and licensing products and services, and technical and
business information relating to the Company's inventions or products, research
and development, production processes, manufacturing and engineering processes,
machines and equipment, finances, existing and potential customers and
suppliers, marketing and future business plans. However, such Proprietary
Information shall not include any materials, techniques, or information of the
type specified to the extent that such materials, techniques or information are
publicly known or generally utilized by others engaged in the same business or
activities as that in the course of which the Company utilized, developed or
otherwise acquired such materials, techniques, or information. Upon termination
of my employment or at the request of my supervisor before termination, I will
deliver to the Company all written and tangible material in my possession
belonging to the Company incorporating the Proprietary Information or otherwise
relating to the Company's Business. These obligations with respect to
Proprietary Information extend to information belonging to customers and
suppliers of the Company who may have disclosed such information to me as the
result of my status as an employee of the Company. The covenants made in this
Section 2 shall commence on the date hereof and shall be perpetual with respect
to any Proprietary Information. Notwithstanding anything to the contrary herein,
in response to a valid court order or other governmental body (including any
administrative body or legislative body, including a committee thereof, with
jurisdiction to order the Company to divulge, disclose or make accessible such
information), the Employee may divulge Proprietary Information; provided
however, that
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the Employee shall immediately notify the Company of his receipt of any subpoena
or other notice to testify (orally or in writing) or appear and/or produce
documents to enable the Company to take action to prevent such Proprietary
Information from being made public or otherwise disclosed.
3. POSSESSION OF INFORMATION IN TANGIBLE FORM. All Proprietary
Information consisting of records, reports, notes, compilations, computer
software programs or disks or other recorded matter, and copies or reproductions
thereof, relating to the Company's operations, activities or business, made or
received by me during any period of employment with the Company are and shall be
the Company's exclusive property, and I will keep the same at all times in the
Company's custody and subject to its control, and will surrender the same at the
termination of my employment if not before.
4. COMPANY'S REMEDIES FOR BREACH. I acknowledge that a breach by me of
this Agreement cannot reasonably or adequately be compensated in damages in an
action at law, and that a breach of any of the provisions contained in this
Agreement will cause the Company irreparable injury and damage. By reason
thereof, I agree that the Company shall be entitled, in addition to any other
remedies it may have under this Agreement or otherwise, to preliminary and
permanent injunctive and other equitable relief to prevent or curtail any breach
of this Agreement; provided, however, that no specification in this Agreement of
a specific legal or equitable remedy shall be construed as a waiver or
prohibition against the pursuing of other legal or equitable remedies in the
event of such a breach.
5. SEVERABILITY. In the event that any provision of this Agreement or
any word, phrase, clause, sentence or other portion thereof should be held to be
unenforceable or invalid for any reason, such provision or portion thereof shall
be modified or deleted in such a manner so as to make this Agreement as modified
legal and enforceable to the fullest extent permitted under applicable laws.
6. BINDING EFFECT. This Agreement shall be binding upon my heirs,
executors, administrators or other legal representatives or assigns and shall
inure to the benefit of and be enforceable by the Company and its successors and
assigns.
7. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California without regard to the
conflicts of law principles thereof.
8. VENUE. The parties hereby irrevocably and unconditionally consent to
submit to the exclusive jurisdiction of the courts of the State of California,
County of San Diego, and/or the United States District Court for the Southern
District of California for any actions, suits, controversies or proceedings
arising out of or relating to this
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Agreement and the transactions contemplated hereby (and the parties agree not to
commence any action, suit or proceeding relating thereto except in such courts),
and further agree that service of any process, summons, notice or document by
U.S. registered mail to the respective addresses set forth above shall be
effective service of process for any action, suit or proceeding brought against
the parties in any such court. The parties hereby irrevocably and
unconditionally waive any objection to the laying of venue of any action, suit,
controversies or proceeding arising out of this Agreement or the transactions
contemplated hereby, in the courts of the State of California, County of San
Diego and/or the United States District Court for the Southern District of
California, and hereby further irrevocably and unconditionally waive and agree
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient or improper forum.
(signature page follows)
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IN WITNESS WHEREOF, I have hereunto set my hand as of this 16th day of
July, 1999.
-------------------------------------
Xxxxxx Xxxxxxx
Address:
0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Accepted and agreed:
INLAND ENTERTAINMENT CORPORATION,
a Utah corporation
-------------------------------------
L. Xxxxxx Xxxxx, XX
Chairman of the Board, Chief Executive
Officer and President
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EXHIBIT B
COMPANY POLICY ON TRADING IN COMPANY SECURITIES
BY COMPANY PERSONNEL
19
SECURITIES TRADING
COMPANY POLICY
ON
TRADING IN COMPANY SECURITIES
BY
COMPANY PERSONNEL
20
INTRODUCTION
PROHIBITION ON XXXXXXX XXXXXXX; STATEMENT OF COMPANY POLICY - SECURITIES TRADES
BY COMPANY PERSONNEL
As you may be aware, due to the fact that Inland is a small, publicly
traded corporation and most of us are privy to very sensitive information
regarding the growth of the corporation and the development of various programs
and projects, it is imperative that each of us understand, appreciate and comply
with the limitations which are imposed upon us by law concerning the exercise of
stock options and the purchase and/or sale of Inland securities (stock).
As a general rule, employees with "material" information concerning the
corporation and its operations are prohibited from trading the corporations
stock until such time as the information becomes public. As set forth in the
attached policy statement, "material information" is any information that a
reasonable investor would consider important in a decision to buy, hold, or sell
stock. In short, any information which could reasonably affect the price of the
stock." This prohibition applies also to family, friends and to other third
parties to whom we might impart the information.
As the penalties are quite severe, I have attached a copy of the company
policy together with a compliance form that each employee must read and sign on
an annual basis. A signed copy of your compliance form will be maintained in
your employee file. If you have questions in regards to the policy, form or
compliance with the regulations prohibiting xxxxxxx xxxxxxx, please contact
Xxxxx XxXxxxxx, or if not available either Xxxx Xxxx or me.
/s/ XXXXXXXXXX XX. XXXXXX
----------------------------
Xxxxxxxxxxx Xx. Voisin
General Counsel
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INLAND ENTERTAINMENT CORPORATION
STATEMENT OF COMPANY POLICY
RE: SECURITIES TRADES BY COMPANY PERSONNEL
THE NEED FOR A POLICY STATEMENT
The Securities and Exchange Commission (the "SEC") and the U.S.
Attorneys have been vigorously pursuing violations of xxxxxxx xxxxxxx laws. To
date their efforts have concentrated on individuals directly involved in trading
abuses. In 1988, however, to further deter xxxxxxx xxxxxxx violations, Congress
expanded the authority of the SEC and the Justice Department, adopting the
Xxxxxxx Xxxxxxx and Securities Fraud Enforcement Act. In addition to increasing
the penalties for xxxxxxx xxxxxxx, the Act puts the onus on companies and
possible other "controlling persons" for violations by company personnel.
Although the Act was aimed primarily at the securities industry, lawyers
have recently begun to focus on the application of the new laws to companies in
other industries. The conclusion that many are now coming to is that if
companies like ours do not take active steps to adopt preventive policies and
procedures covering the securities trades by company personnel, the consequences
could be severe.
In addition to responding to the Act, we are adopting this Policy
Statement to avoid even the appearance of improper conduct on the part of anyone
employed by or associated with Inland Entertainment Corporation ("Inland" or the
"Company"), not just so-called insiders.
We have all worked hard over the years to establish our reputation for
integrity and ethical conduct. We cannot afford to have it damaged.
THE CONSEQUENCES
The consequences of xxxxxxx xxxxxxx violations can be staggering. For
individuals who trade on inside information (or tip information to others):
- A civil penalty of up to three times the profit gained or loss
avoided;
- A criminal fine (no matter how small the profit) of up to $1
million; and
- A jail term of up to ten years.
For a company (as well as possibly any supervisory person) that fails to
take appropriate steps to prevent illegal trading:
- A civil penalty of the greater of $1 million or three times the profit
gained or loss avoided as a result of the employee's violation; and
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- A criminal penalty of up to $2.5 million.
Moreover, if an employee violates the Company's xxxxxxx xxxxxxx policy,
Company imposed sanctions, including dismissal for cause, could result for
failing to comply with the Company's policy or procedures. Needless to say, any
of the above consequences, even an SEC investigation that does not result in
prosecution, can tarnish one's reputation and irreparably damage a career.
OUR POLICY
To help avoid the above-referenced consequences to the Company and its
personnel, we have designed the following practices which all directors,
officers and employees of the Company are required to follow:
1. Material nonpublic information about the Company shall not be
revealed to any other person (even a family member), except when necessary in
the course of the business of Inland.
2. Securities of the Company shall not be purchased or sold when the
purchaser or seller knows of material nonpublic information.
Assuming that the purchaser or seller knows of no material nonpublic
information, (a) all directors, all executive officers and the controller of the
Company must contact and obtain clearance from the Chief Financial Officer with
notice to the company's General Counsel and SEC Coordinator, prior to engaging
in a purchase or sale of securities of the Company (see additional provision for
corporate directors & officers); (b) all other employees of the Company must
obtain clearance from the SEC Coordinator if any transaction in the Company's
securities involves (i) options (other than granted by the Company); (ii) the
purchase of securities on margin; (iii) short sales; or (iv) buying or selling
puts or calls.
Material nonpublic information about another public company (e.g.,
companies doing business with the Company) obtained in the course of employment
at the Company shall not be revealed to any other person (even a family member)
and securities of such public company shall not be purchased or sold when the
purchaser or seller knows of material nonpublic information. You must contact
the SEC Coordinator and General Counsel prior to any trade if you question
whether you are in possession of such nonpublic information.
The very same restrictions apply to your family members and others
living in your household. Directors, officers and employees are expected to be
responsible for the compliance of their family and personal household.
3. Annually, each director, officer and employee of the Company must
submit written confirmation that such person understands and agrees to follow
the policies and procedures set forth above.
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Transactions that may be necessary or justifiable for independent
reasons (such as the need to raise money for an emergency expenditure) are no
exception. As noted above, even the appearance of an improper transaction must
be avoided to preserve our reputation for adhering to the highest standards of
conduct.
MATERIAL INFORMATION
Material information is any information that a reasonable investor would
consider important in a decision to buy, hold or sell stock. In short, any
information that could reasonably affect the price of the stock.
TWENTY-TWENTY HINDSIGHT
Remember, if your securities transactions become the subject of
scrutiny, they will be viewed after-the-fact with the benefit of hindsight. As a
result, before engaging in any transaction you should carefully consider how
regulators and others might view your transaction in hindsight.
TIPPING INFORMATION TO OTHERS
Whether the information is proprietary information about the Company or
information that could have an impact on the Company's stock price, directors,
officers, and employees must not pass material information on to others. The
above penalties apply, whether or not you derive any benefit from another's
actions. In fact, in recent years the SEC imposed a $470,000 penalty on a tipper
even though he did not profit from his tippees' trading.
WHEN INFORMATION IS PUBLIC
As you can appreciate, it is also improper for a director, officer or
employee to enter a trade immediately after the Company has made a public
announcement of material information, including earnings releases. Because the
Company's shareholders and the investing public should be afforded the time to
receive the information and act upon it, as a general rule you should not engage
in any transactions until the third business day after the information has been
released. Thus, if an announcement is made on a Monday, Thursday generally would
be the first day on which you should trade. If an announcement is made on
Friday, Wednesday generally would be the first day.
COMPANY ASSISTANCE
Any person who has any questions about this Policy Statement may obtain
additional guidance from the SEC Coordinator or General Counsel. Remember,
however, the ultimate responsibility for adhering to the Policy Statement and
avoiding improper transactions rests with you. In this regard, it is imperative
that you use your best judgment.
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TRADING WINDOW FOR CORPORATE OFFICERS AND DIRECTORS
Because officers and directors have access to more information than
other employees, they have an "insiders" advantage in regards to making
decisions related to trading in shares of the company. Accordingly, officers and
directors should refrain from trading in Inland securities (this includes the
exercise of options), during certain times of the year. The trading "windows"
for officers and directors, (allowable times to trade in shares of the company),
are typically short in duration. The trading "window" is closed from the time
key employees in a corporation (directors and officers) have sufficient
information to make an estimate as to quarterly profitability and operational
success for a given fiscal quarter, until the 3rd day after the release of such
results. (Also see sections above for additional time periods trading windows
may be closed i.e. Material Information, etc.)
For Inland, knowledge of quarterly profitability, (start of trading
"blackout" period), is determined to be the 20th day of the 3rd month of the
quarter (i.e. March 20th, June 20th, September 20th, and December 20th). Release
of quarterly results, (end of "blackout" period the 3rd day after such release),
is no later than the filing of the quarterly 10-QSB normally released 40 to 45
days after the end of a given quarter, or the annual earnings report 10-KSB due
90 days subsequent to fiscal year end (June 30). An earnings press release is
often done one to two weeks before the filings of the 10-QSB or 10-KSB. If this
is the case, the trading window will open three business days subsequent to this
earlier earnings release.
Example 1: A director would like to exercise options in the quarter
ending December 31st. Once the prior quarter earning report (10-QSB) has been
released (which would be approximately November 14th) the director has to wait
until three (3) business days after the earnings release before trading. As such
the first available date would be November 17th (presuming the 17th is not a
Saturday or Sunday). At the same time, the 20th day of the third month of the
quarter ending on December 31st is December 20th. Consequently, the officer or
director has a trading "window" of November 18th through December 20th.
Example 2: A director would like to exercise options in the 1st Quarter
ending September 30th, however the prior quarter annual earnings report (10-KSB)
will not be released until approximately September 28th (i.e. 90 days after June
30th). September 20th started the blackout period for 2nd Quarter results.
Therefore, the blackout period for 4th quarter commencing June 20th overlaps
with the blackout period for 1st Quarter and therefore the trading window is not
open again until 3 days after 2nd Quarter results are released, which would be
approximately November 17th as noted in Example 1 above.
In all cases, officers and directors are required to contact the SEC
coordinator prior to executing a trade or exercising an option.
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STATEMENT OF COMPLIANCE REGARDING
COMPANY POLICY
CONCERNING SECURITIES TRADES
BY
COMPANY PERSONNEL
I, ____________________________________ hereby acknowledge and confirm
that I have read the attached STATEMENT OF COMPANY POLICY concerning securities
trades by company personnel, that I understand the legal requirements and
limitations concerning trading in company securities and agree to be bound at
all times by the company policy.
I further acknowledge and agree that I will at all times comply with the
company's policy concerning trading in company securities and will contact the
company's SEC Coordinator or their designee concerning any questions I might
have and prior to either selling or purchasing company securities.
------------------------------
Employee Signature Date
------------------------------
Print Name
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EXHIBIT C
SECTION 2870 OF THE CALIFORNIA LABOR CODE
27
SECTION 2870 OF THE CALIFORNIA LABOR CODE
SECTION 2870. EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of
the invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer; or
(2) Result from any work performed by the employee for the
employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
