EMPLOYMENT AGREEMENT
EXHIBIT
10.1
THIS
EMPLOYMENT AGREEMENT (this “Agreement”)
is
made, entered into and effective as of October 30, 2006 (the “Effective
Date”),
between GoFish Corporation (the “Company”),
and
Xxxx Xxxxxxxxx, an individual (the “Executive”).
WHEREAS,
the Company and the Executive wish to memorialize the terms and conditions
of
the Executive’s employment by the Company in the position of Chief Technology
Officer;
NOW,
THEREFORE, in consideration of the covenants and promises contained herein,
the
Company and the Executive agree as follows:
1. Employment
Period.
The
Company offers to employ the Executive, and the Executive agrees to be employed
by Company, in accordance with the terms and subject to the conditions of this
Agreement. The Company and Executive agree that Executive is employed “at will”
which means that the employment relationship may be terminated by either party
at any time, for any reason or no reason, subject to the provisions of Section
11 below (the period during which the Executive is employed by the Company
hereinafter referred to as the “Employment
Period”).
The
Executive affirms that no obligation exists between the Executive and any other
entity which would prevent or impede the Executive’s immediate and full
performance of every obligation of this Agreement.
2. Position
and Duties.
During
the term of the Executive’s employment hereunder, the Executive shall continue
to serve in, and assume duties and responsibilities consistent with, the
position of Chief Technology Officer of a public company, which may include,
but
are not limited to, serving a key executive role in the technology/engineering
team; driving overall technology and design in terms of the GoFish technology
and product platforms, application infrastructure, tactical systems management
methodology, and solutions design; working to define best-practices in the
overall design and architecture of the Company’s application architecture;
crafting effective approaches to addressing the unique challenges in and around
reliability, speed, and scale; managing, on an on-going basis, the GoFish
platform and infrastructure; and developing and managing the Company’s
technology strategy and team, as the Chief Executive Officer of the Company
shall determine from time to time. The Company agrees that between the Effective
date and November 16, 2006, the Executive may work part time in order to allow
him to fulfill certain existing business commitments. Thereafter, the Executive
agrees to devote to the Company substantially all of his working time, skill,
energy and best business efforts during the term of his employment with the
Company, and the Executive shall not engage in business activities outside
the
scope of his employment with the Company if such activities would detract from
or interfere with his ability to fulfill his responsibilities and duties under
this Agreement or require substantial amounts of his time or of his
services.
3. No
Conflicts.
The
Executive covenants and agrees that for so long as he is employed by the
Company, he shall inform the Company of each and every future business
opportunity presented to the Executive that arises within the scope of the
Business of the Company (as defined below) and would be feasible for the
Company, and that he will not, directly or indirectly, exploit any such
opportunity for his own account.
4. Hours
of Work.
The
Executive’s normal days and hours of work shall coincide with the Company’s
regular business hours. The nature of the Executive’s employment with the
Company requires flexibility in the days and hours that the Executive must
work,
and may necessitate that the Executive work on other or additional days and
hours.
5. Location.
The
locus of the Executive’s employment with the Company shall be San Francisco,
California and, from time to time as determined by the Company, any other locus
where the Company now or hereafter has a business facility.
6. Compensation.
(a) Base
Salary.
During
the term of this Agreement, the Company shall pay, and the Executive agrees
to
accept, in consideration for the Executive’s services hereunder, pro
rata
payments, twice a month, of the annual salary of $225,000, less all applicable
taxes and other appropriate deductions. The
Executive’s salary for the calendar year 2006 shall be paid pro
rata
for the
portion of the year he is an employee.
The
Compensation Committee (the “Compensation
Committee”)
of the
Board of Directors (the “Board”)
shall
also review the Executive’s base salary annually and shall make a recommendation
to the Board as to whether such base salary should be increased but not
decreased, which decision shall be within the Board’s sole
discretion.
(b) Annual
Bonus.
During
the term of this Agreement, the Executive shall be entitled to an annual bonus
to be determined in consultation with the Board, as follows:
(i) If
Executive accomplishes goals to be determined by the Company’s CEO in
consultation with the Executive during a calendar year, excluding the calendar
year 2006, the Executive will be entitled to an annual bonus of up to 20% of
the
Executive’s base salary. Executive will be eligible for a potential one time
bonus of up to 100,000 options for the year end 2007 upon accomplishment of
the
goals established by the CEO in consultation with Executive.
(ii) The
annual bonus set forth in Section 6(b)(i) above shall be paid by the Company
to
the Executive on or before April 15th,
and in
any event upon completion of the Company’s audit, following the calendar year of
the Employment Period in which such bonus was earned.
No
bonus
shall be paid for the calendar year 2006.
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7. Expenses.
During
the term of this Agreement, the Executive shall be entitled to payment or
reimbursement of any reasonable expenses paid or incurred by him in connection
with and related to the performance of his duties and responsibilities hereunder
for the Company. All requests by the Executive for payment or
reimbursement of such expenses shall be supported by appropriate invoices,
vouchers, receipts or such other supporting documentation in such form and
containing such information as the Company may from time to time require,
evidencing that the Executive, in fact, incurred or paid said
expenses.
8. Vacation.
During
the term of this Agreement, the Executive shall be entitled to accrue, on a
pro
rata basis,
20
vacation days per year, as a combination of Paid Time Off and Paid Vacation
allocation, as defined below in Sections 8(a) and 8(b). However, from the date
of execution of this agreement until the end of 2007 the Executive shall be
entitled to accrue, on a pro
rata
basis,
15 vacation days per year as a combination of Paid Time Off and Paid Vacation
allocation, as defined below in Sections 8(a) and 8(b). The Executive shall
be
entitled to carry over any accrued, unused Paid Vacation days from year to
year
without limitation.
9. Stock
Options.
The
Company hereby agrees that the Executive
shall be granted a stock option on the terms and conditions hereinafter
stated:
(a) Grant
of Option.
On the
Effective Date, the Company will grant
the
Executive an option to purchase an aggregate of 275,000 shares of the
Company’s common voting stock (the “Option”)
under
the Company’s 2006 Equity Incentive Plan (the “Equity
Incentive Plan”).
Such
grant shall be evidenced by an Option Agreement as contemplated by the Equity
Incentive Plan. In subsequent years the Executive shall be eligible for such
grants of Options and other permissible awards (collectively with the Options,
“Awards”) under the Equity Incentive Plan as the Compensation Committee or the
Board shall determine.
(b) Option
Price; Term.
The
exercise
price of the Option shall be $1.50 per share, which represents the fair market
value per share of Company common voting stock on the Effective Date. The term
of the Option shall be ten years from the date of grant.
(c) Option
Vesting and Exercise.
Twenty-five percent (25%) of the Option shall be vested and exercisable on
the
first anniversary of the date of the grant of the Option. On the last day of
each month thereafter, continuing to the fourth anniversary of the date of
the
grant of the Option, an additional one forty-eighth of the Option shall vest,
subject to Section 9(d).
(d) Termination
of Service; Accelerated Vesting.
(i) If
the
Executive’s employment is terminated for Cause, as such term is defined below,
all Awards, whether or not vested, shall immediately expire effective the date
of termination of employment.
(ii) If
the
Executive’s employment is terminated voluntarily by the Executive without Good
Reason, as such term is defined below, all unvested Awards shall immediately
expire effective the date of termination of employment. Vested Awards, to the
extent unexercised, shall expire one month after the termination of
employment.
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(iii) Except
as
set forth in Section 9(d)(iv), if the Executive’s employment is terminated (i)
by the Company without Cause, as defined below; (ii) by the Executive for Good
Reason, as defined below; or (iii) upon death or Disability, as defined below,
all unvested Awards shall immediately expire and the vested Awards, to the
extent unexercised, shall expire one year after any such event.
(iv) If
the
Executive’s employment is terminated as a result of a circumstance contemplated
in Section 11(e)(i)(C), all unvested Awards shall immediately vest and become
exercisable effective on the date of termination of employment, and to the
extent unexercised, shall expire one year after any such event.
(e) Payment.
The
full consideration for any shares purchased by the Executive upon exercise
of
the Options shall be paid in cash.
10. Other
Benefits.
(a) During
the term of this Agreement, the Executive shall be eligible to participate
in
incentive, savings, retirement (401(k)), and welfare benefit plans, including,
without limitation, health, medical,
dental,
vision,
life (including accidental death and dismemberment)
and
disability insurance plans (collectively, “Benefit
Plans”),
in
substantially the same manner, including but not limited to responsibility
for
the cost thereof, and at
substantially the same levels, as the Company makes
such
opportunities available to all of the Company’s managerial
or salaried executive
employees.
(b) The
Executive’s spouse and dependent minor children will be covered under the
Benefit Plans providing health, medical, dental, and vision benefits, in
substantially the same manner, including but not limited to responsibility
for
the cost thereof, and at substantially the same levels, as the Company makes
such opportunities available to the spouses and dependent minor children to
all
of the Company’s managerial or salaried executive employees.
(c)
Until
such time as the Executive becomes covered by Company medical coverage, the
Company shall reimburse the Executive for the Executive’s medical coverage
currently in place.
11. Termination
of Employment.
(a) Death.
In the
event that during the term of this Agreement the Executive dies, this Agreement
and the Executive’s employment with the Company shall automatically terminate
and the Company shall have no further obligations or liability to the Executive
or his heirs, administrators or executors with respect to compensation and
benefits accruing thereafter, except for the obligation to pay the Executive’s
heirs, administrators or executors any earned but unpaid base salary, unpaid
pro
rata
annual
bonus, and unused vacation days accrued through the date of death, and to
reimburse, pursuant to Section 7, any expenses incurred through the date of
death; provided,
that
nothing contained in this paragraph shall be deemed to excuse any breach by
the
Company of any provision of this Agreement. All payments due hereunder shall
be
made within 45 days after the Executive’s death; provided, however, that payment
of any pro
rata
annual
bonus shall be made as specified in Section 11(g). The Company shall deduct,
from all payments made hereunder, all applicable taxes, including income tax,
FICA and FUTA, and other appropriate deductions.
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(b) “Disability.”
In
the
event that, during the term of this Agreement, the Executive shall be prevented
from performing his duties and responsibilities hereunder to the full extent
required by the Company by reason of Disability (as defined below) this
Agreement and the Executive’s employment with the Company shall automatically
terminate and the Company shall have no further obligations or liability to
the
Executive or his heirs, administrators or executors with respect to compensation
and benefits accruing thereafter, except for the obligation to pay the Executive
or his heirs, administrators or executors any earned but unpaid base salary,
unpaid pro
rata
annual
bonus and unused vacation days accrued through the Executive’s last date of
employment with the Company, and to reimburse, pursuant to Section 7, any
expenses incurred through the Executive’s last day of employment with the
Company; provided,
that
nothing contained in this paragraph shall be deemed to excuse any breach by
the
Company of any provision of this Agreement. All payments due hereunder shall
be
made within 15 days after the date of termination of the Executive’s employment;
provided,
however, that payment of any pro
rata
annual
bonus shall be made as specified in Section 11(g). The Company shall deduct,
from all payments made hereunder, all applicable taxes, including income tax,
FICA and FUTA, and other appropriate deductions through
the last date of the Executive’s employment with the Company. For purposes of
this Agreement, “Disability”
shall
mean a physical or mental disability that prevents the performance by the
Executive, with or without reasonable accommodation, of his duties and
responsibilities hereunder for a period of not less than an aggregate of three
months during any twelve consecutive months.
(c) “Cause.”
(i) At
any
time during the term of this Agreement, the Company may terminate this Agreement
and the Executive’s employment hereunder for “Cause.” For purposes of this
Agreement, “Cause”
shall
be defined as the occurrence of: (A)
gross
neglect, malfeasance or gross insubordination in performing the Executive’s
duties under this Agreement; (B) the Executive’s conviction for a felony,
excluding convictions associated with traffic violations; (C) an egregious
act
of dishonesty (including without limitation theft or embezzlement) or a
malicious action by the Executive toward the Company’s customers or employees;
(D) a willful and material violation of any provision of Sections 12 and 13
hereof; (E) intentional reckless conduct that is materially detrimental to
the
business or reputation of the Company; or (F) material failure, other than
by
reason of Disability, to carry out reasonably assigned duties or instructions
consistent with the title of Chief Technology Officer (provided that material
failure to carry out reasonably assigned duties shall be deemed to constitute
Cause only after a finding by the Board of Directors, or a duly constituted
committee thereof, of material failure on the part of the Executive and the
failure to remedy such performance to the Board’s or the committee’s
satisfaction within 30 days after delivery of written notice to the Executive
of
such finding setting forth those duties that are not being performed by the
Executive).
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(ii) Upon
termination of this Agreement for Cause, the Company shall have no further
obligations or liability to the Executive or his heirs, administrators or
executors with respect to compensation and benefits thereafter, except for
the
obligation to pay the Executive any earned but unpaid base salary, unpaid
pro
rata
annual
bonus, and unused vacation days accrued through the Executive’s last day of
employment with the Company, and to reimburse, pursuant to Section 7, any
expenses incurred through the Executive’s last day of employment with the
Company. All payments due hereunder shall be made within 15 days after the
date
of termination of the Executive’s employment; provided,
however, that payment of any pro
rata
annual
bonus shall be made as specified in Section 11(g). The Company shall deduct,
from all payments made hereunder, all applicable taxes, including income tax,
FICA and FUTA, and other appropriate deductions.
(d) Change
of Control.
For
purposes of this Agreement, “Change
of Control”
means
the occurrence of, or the Company’s Board’s vote to approve: (A) any
consolidation or merger of the Company pursuant to which the stockholders
of the Company immediately before the transaction do not retain immediately
after the transaction, in substantially the same proportions as their ownership
of shares of the Company’s
voting
stock immediately before the transaction, direct or indirect beneficial
ownership of more than 50% of the total combined voting power of the outstanding
voting securities of the surviving business entity;
(B) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the Company
other than any sale, lease, exchange or other transfer to any company where
the
Company owns, directly or indirectly, 100% of the outstanding voting securities
of such company after any such transfer; or (C)
the
direct or indirect sale or exchange in a single transaction or series of related
transactions by the stockholders of the Company of more than 50% of the voting
stock of the Company.
(e) “Good
Reason.”
(i) At
any
time during the term of this Agreement, subject to the conditions set forth
in
Section 11(e)(ii) below, the Executive may terminate this Agreement and the
Executive’s employment with the Company for “Good Reason.” For purposes of this
Agreement, “Good
Reason”
shall
mean the occurrence of any of the following events: (A) the
assignment, without the Executive’s consent, to the Executive of duties that are
significantly different from, and that result in a substantial diminution of,
the duties that he assumed on the Effective Date; (B) the
assignment, without the Executive’s consent, to the Executive of a title that is
different from and subordinate to the title specified in Section 2 above; (C)
any termination of the Executive’s employment by the Company, other than a
termination for Cause, within 12 months after a Change of Control; (D) a change
to the principal place of the performance of the Executive’s duties to a
location more than 50 miles from San Francisco, California without the
Executive’s prior written consent; or (E) material
breach by the Company of this Agreement.
(ii) The
Executive shall not be entitled to terminate his employment with the Company
and
this Agreement for Good Reason unless and until he shall have delivered written
notice to the Company of his intention to terminate this Agreement and his
employment with the Company for Good Reason, which notice specifies in
reasonable detail the circumstances claimed to provide the basis for such
termination for Good Reason, and the Company shall not have eliminated the
circumstances constituting Good Reason within 30 days of its receipt from the
Executive of such written notice.
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(iii) In
the
event that the Executive terminates this Agreement and his employment with
the
Company for Good Reason, the Company shall pay or provide to the Executive
(or,
following his death, to the Executive’s heirs, administrators or executors):
(A)
any
earned but unpaid base salary, unpaid pro
rata
annual
bonus, and unused vacation days accrued through the Executive’s last day of
employment with the Company, as well as reimbursement, pursuant to Section
7, of
any expenses incurred through the Executive’s last day of employment with the
Company; and
(B)
severance in an amount equal to three months’ base salary, as in effect
immediately prior to the Executive’s termination hereunder. All payments due
hereunder shall be made within 15 days after the date of termination of the
Executive’s employment;
provided, however, that payment of any pro
rata
annual
bonus shall be made as specified in Section 11(g). The Company shall deduct,
from all payments made hereunder, all applicable taxes, including income tax,
FICA and FUTA, and other appropriate deductions.
(iv) The
Executive shall have no duty to mitigate his damages.
(f) Without
“Cause” or “Good Reason.”
(i) By
The
Executive.
At any
time during the term of this Agreement, the Executive shall be entitled to
terminate this Agreement and the Executive’s employment with the Company without
Good Reason by providing prior written notice of at least 30 days to the
Company. Upon termination by the Executive of this Agreement and the Executive’s
employment with the Company without Good Reason, the Company shall have no
further obligations or liability to the Executive or his heirs, administrators
or executors with respect to compensation and benefits thereafter, except for
the obligation to pay the Executive any earned but unpaid base salary and unused
vacation days accrued through the Executive’s last day of employment with the
Company, and to reimburse, pursuant to Section 7, any expenses incurred through
the Executive’s last day of employment with the Company. All payments due
hereunder shall be made within 15 days after the date of termination of the
Executive’s employment. The Company shall deduct, from all payments made
hereunder, all applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions.
(ii) By
The
Company.
At any
time during the term of this Agreement, the Company shall be entitled to
terminate this Agreement and the Executive’s employment with the Company without
Cause by providing prior written notice of at least 30 days to the Executive.
Upon termination by the Company of this Agreement and the Executive’s employment
with the Company without Cause, the Company shall pay or provide to the
Executive (or, following his death, to the Executive’s heirs, administrators or
executors): (A) any earned but unpaid base salary, unpaid pro
rata
annual
bonus, and unused vacation days accrued through the Executive’s last day of
employment with the Company, as well as reimbursement, pursuant to Section
7, of
any expenses incurred through the Executive’s last day of employment with the
Company, and (B) severance in an amount equal to three months’ base salary, as
in effect immediately prior to the Executive’s termination hereunder. All
payments due hereunder shall be made within 15 days after the date of
termination of the Executive’s employment. The Company shall deduct, from all
payments made hereunder, all applicable taxes, including income tax, FICA and
FUTA, and other appropriate deductions.
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(g) Pro
Rata
Bonus
After Termination.
In the
event the Executive’s employment terminates pursuant to Sections 11(a), 11(b),
11(c) or 11(f)(ii), the Company will, at the time specified in Section 6(b)(ii),
pay any pro
rata
annual
bonus earned pursuant to Section 6(b)(i) prior to the termination of employment.
For example only, and not by way of limitation, if the Executive’s employment
terminated on October 1, 2007 pursuant to Section 11(f)(ii), any annual bonus
earned pursuant to Section 6(b)(i) prior to such termination would be paid
by
the Company to the Executive on or before April 15, 2008, and in any event
upon
completion of the Company’s audit.
12. Confidential
Information.
(a) The
Executive expressly acknowledges that, in the performance of his duties and
responsibilities with the Company, he has been exposed since prior to the
Effective Date, and will be exposed, to the trade secrets, business and/or
financial secrets, and confidential and proprietary information of the Company,
its affiliates and/or its clients, business partners or customers (“Confidential
Information”).
The
term “Confidential Information” includes information or material that has actual
or potential commercial value to the Company, its affiliates and/or its clients,
business partners or customers and is not generally known to and is not readily
ascertainable by proper means to persons outside the Company, its affiliates
and/or its clients or customers. Notwithstanding any other provision of this
Agreement, Confidential Information does not include any information which:
(i)
the Executive can show was already in his possession prior to the receipt of
such information from the Company; (ii) is now or shall become public
information or otherwise generally available to the public through no fault
of
the Executive; (iii) the Executive can show was received by him without
restriction from a third party which is lawfully in possession of such
information and is not in breach of any confidential relationship with the
Company; or (iv) the Executive can show was independently developed by him
or a
person or entity affiliated with him without the use of any Confidential
Information.
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(b) Except
as
authorized in writing by the Board, during the performance of the Executive’s
duties and responsibilities for the Company and until such time as any such
Confidential Information becomes generally known to and readily ascertainable
by
proper means to persons outside the Company, its affiliates and/or its clients,
business partners or customers, the Executive agrees to keep strictly
confidential and not use for his personal benefit or the benefit to any other
person or entity (other than the Company) Confidential Information.
“Confidential Information” includes the following, whether or not expressed in a
document or medium, regardless of the form in which it is communicated, and
whether or not marked “trade secret” or “confidential” or any similar legend:
(i) lists
of
and/or information concerning customers, prospective customers, suppliers,
employees, consultants, co-venturers and/or joint venture candidates of the
Company, its affiliates or its clients or customers; (ii) information
submitted by customers, prospective customers, suppliers, employees, consultants
and/or co-venturers of the Company, its affiliates and/or its clients or
customers; (iii) non-public
information proprietary to the Company, its affiliates and/or its clients or
customers, including, without limitation, cost information, profits, sales
information, prices, accounting, unpublished financial information, business
plans or proposals, expansion plans, markets and marketing methods, advertising
and marketing strategies, administrative procedures and manuals, the terms
and
conditions of the Company’s contracts and trademarks and patents under
consideration, distribution channels, franchises, investors, sponsors and
advertisers; (iv) proprietary
technical information concerning products and services of the Company, its
affiliates and/or its clients, business partners or customers, including,
without limitation, product data and specifications, diagrams, flow charts,
know
how, processes, designs, formulae, inventions and product development; (v)
lists
of
and/or information concerning applicants, candidates or other prospects for
employment, independent contractor or consultant positions at or with any actual
or prospective customer or client of Company and/or its affiliates,
any and
all confidential processes, inventions or methods of conducting business of
the
Company, its affiliates and/or its clients, business partners or customers;
(vi)
acquisition or merger targets; (vii) business plans or strategies, data,
records, financial information or other trade secrets concerning the actual
or
contemplated business, strategic alliances, policies or operations of the
Company or its affiliates; (viii) any
and
all versions of proprietary computer software (including source and object
code), hardware, firmware, code, discs, tapes, data listings and documentation
of the Company;
or (ix)
any other confidential information disclosed to the Executive by, or which
the
Executive obligated under a duty of confidence from, the Company, its
affiliates, and/or its clients, business partners or customers.
(c) The
Executive affirms that he does not possess and will not rely upon the protected
trade secrets or confidential or proprietary information of his prior
employer(s) in providing services to the Company.
(d) In
the
event that the Executive’s employment with the Company terminates for any
reason, the Executive shall deliver forthwith to the Company any and all
originals and copies of Confidential Information.
13. Non-Competition
And Non-Solicitation.
(a) The
Executive agrees and acknowledges that by virtue of his position in the Company,
he is familiar with and in possession of the Company’s trade secrets, customer
information and other Confidential Information which are valuable to the
Company and
that
their goodwill, protection and maintenance constitute a legitimate business
interest of the Company, to be protected by the non-competition restrictions
set
forth herein. The Executive agrees and acknowledges that the non-competition
restrictions set forth herein are reasonable and necessary and do not impose
undue hardship or burdens on the Executive. The Executive also acknowledges
that
the products and services developed or provided by the Company, its
affiliates and/or its clients or customers
are or
are intended to be sold, provided, licensed and/or distributed to customers
and
clients in and throughout the United States (the “Geographic
Boundary”),
and
that the Geographic Boundary, scope of prohibited competition, and time duration
set forth in the non-competition restrictions set forth below are reasonable
and
necessary to maintain the value of the Confidential Information of, and to
protect the goodwill and other legitimate business interests of, the Company,
its
affiliates and/or its clients or customers.
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(b) The
Executive hereby agrees and covenants that he shall not, without the prior
written consent of the Company, directly or indirectly, in any capacity
whatsoever, including, without limitation, as an employee, employer, consultant,
principal, partner, shareholder, officer, director or any other individual
or
representative capacity (other than a holder of less than five percent (5%)
of
the outstanding voting shares of any publicly held company), or whether on
the
Executive’s own behalf or on behalf of any other person or entity or otherwise
howsoever, during the Executive’s employment with the Company and for a period
equal to (i) one year following the termination of this Agreement or of the
Executive’s employment pursuant to Section 11(c) or 11(f)(i) of this Agreement,
or (ii) three months following the termination of this Agreement or of the
Executive’s employment pursuant to Section 11(e) or 11(f)(ii) of this Agreement
(provided that the Company must timely and fully pay the three months’ base
salary severance payment to the Executive in order for this Subsection to be
applicable), in the Geographic Boundary: engage, own, manage, operate, control,
be employed by, consult for, participate in, or be connected in any manner
with
the ownership, management, operation or control of any business in competition
with the Business of the Company. The “Business
of the Company”
is
defined as the Internet video industry within the Geographic
Boundary.
(c) The
Executive agrees that the Company will be irreparably damaged if the Executive
were, during the one-year period following the termination of the Executive’s
employment with the Company for any reason, to, directly or indirectly through
another person, recruit, solicit, interfere with or hire any employee or
independent contractor of the Company to leave the employment (or independent
contractor relationship) thereof, whether or not any such employee or
independent contractor is party to an employment agreement. The Company
acknowledges that this Section will not be violated by general advertising
or
general solicitations that are not targeted or directed specifically to
employees of the Company, nor by the consideration or acceptance of unsolicited
applications for employment by such individuals. Therefore, the Executive hereby
agrees and covenants that he shall not, in the Geographic Boundary, without
the
prior written consent of the Company, directly or indirectly, in any capacity
whatsoever, including, without limitation, as an executive, employer,
consultant, principal, partner, shareholder, officer, director or any other
individual or representative capacity (other than a holder of less than five
percent (5%) of the outstanding voting shares of any publicly held company),
or
whether on the Executive’s own behalf or on behalf of any other person or entity
or otherwise howsoever, during the Executive’s employment with the Company and
for a period equal to one year following the termination of this Agreement
or
the Executive’s employment with the Company is terminated for any reason,
recruit, solicit, interfere with or hire any employee or independent contractor
of the Company to leave the employment (or independent contractor relationship)
thereof, whether or not any such employee or independent contractor is party
to
an employment agreement.
10
(d) The
Executive agrees that the Company will be irreparably damaged if the Executive
were to directly or indirectly through another person, attempt in any manner
to
solicit, or interfere with any relationship, contractual or otherwise between
the Company and any other party, including, without limitation, any supplier,
co-venturer or joint venturer of the Company, or accept from any customer of
the
Company, with whom the Executive had significant contact during the term of
the
Agreement, business of the kind or competitive with the business done by the
Company with such customer or to persuade or attempt to persuade any such
customer to cease to do business or to reduce the amount of business which
such
customer has customarily done or is reasonably expected to do with the Company,
or if any such customer elects to move its business to a person other than
the
Company, provide any services (of the kind or competitive with the Business
of
the Company) for such customer, or have any discussions regarding any such
service with such customer, on behalf of such other person. Therefore, the
Executive hereby agrees and covenants that he shall not, in the Geographic
Boundary, without the prior written consent of the Company, directly or
indirectly, in any capacity whatsoever, including, without limitation, as an
executive, employer, consultant, principal, partner, shareholder, officer,
director or any other individual or representative capacity (other than a holder
of less than five percent (5%) of the outstanding voting shares of any publicly
held company), or whether on the Executive’s own behalf or on behalf of any
other person or entity or otherwise howsoever, during the Executive’s employment
with the Company and for a period equal to one year following the termination
of
this Agreement or the Executive’s employment with the Company is terminated for
any reason, attempt in any manner to solicit, interfere with any relationship,
contractual or otherwise between the Company and any other party, including,
without limitation, any supplier, co-venturer or joint venturer of the Company
or accept from any customer of the Company, with whom the Executive had
significant contact during the term of the Agreement, business of the kind
or
competitive with the business done by the Company with such customer or to
persuade or attempt to persuade such customer to cease to do business with
or to
reduce the amount of business which such customer has customarily done or is
reasonably expected to do with the Company.
14. Dispute
Resolution.
The
Executive and the Company agree that any dispute or claim, whether based on
contract, tort, discrimination, retaliation, or otherwise, relating to, arising
from, or connected in any manner with this Agreement or with the Executive’s
employment with Company shall be resolved exclusively through final and binding
arbitration under the auspices of the American Arbitration Association
(“AAA”).
The
arbitration shall be held in San Francisco, California. The arbitration shall
proceed in accordance with the National Rules for the Resolution of Employment
Disputes of the AAA in effect at the time the claim or dispute arose, unless
other rules are agreed upon by the parties. The arbitration shall be conducted
by one arbitrator who is a member of the AAA, unless the parties mutually agree
otherwise. The arbitrators shall have jurisdiction to determine any claim,
including the arbitrability of any claim, submitted to them. The arbitrators
may
grant any relief authorized by law for any properly established claim. The
interpretation and enforceability of this paragraph of this Agreement shall
be
governed and construed in accordance with the United States Federal Arbitration
Act, 9. U.S.C. § 1, et
seq.
More
specifically, the parties agree to submit to binding arbitration any claims
for
unpaid wages or benefits, or for alleged discrimination, harassment, or
retaliation, arising under Title VII of the Civil Rights Act of 1964, the Equal
Pay Act, the National Labor Relations Act, the Age Discrimination in Employment
Act, the Americans With Disabilities Act, the Employee Retirement Income
Security Act, the Civil Rights Act of 1991, the Family and Medical Leave Act,
the Fair Labor Standards Act, Sections 1981 through 1988 of Title 42 of the
United States Code, COBRA, and any other federal, state, or local law,
regulation, or ordinance, and any common law claims, claims for breach of
contract, or claims for declaratory relief. The Executive acknowledges that
the
purpose and effect of this paragraph is solely to elect private arbitration
in
lieu of any judicial proceeding he might otherwise have available to him in
the
event of an employment-related dispute between him and the
Company.
11
Therefore,
the Executive hereby waives his right to have any such employment-related
dispute heard by a court or jury, as the case may be, and agrees that his
exclusive procedure to redress any employment-related claims will be
arbitration.
15. Notice.
For
purposes of this Agreement, notices and all other communications provided for
in
this Agreement or contemplated hereby shall be in writing and shall be deemed
to
have been duly given when personally delivered, delivered by a nationally
recognized overnight delivery service or when mailed United States Certified
or
registered mail, return receipt requested, postage prepaid, and addressed as
follows:
If
to the
Company:
GoFish
Corporation
000
Xxxxx
Xxxxxx
Xxxxx
000
Xxx
Xxxxxxxxx, XX 00000
(000)
000-0000 (facsimile)
(000)
000-0000 (direct)
If
to the
Executive:
Xxxx
Xxxxxxxxx
0000
Xxxxxxxx Xx.
Xxxxxxx,
XX 00000
Any
party
may change the address to which communications hereunder are to be delivered
by
giving the other party notice in the manner herein set forth.
16. Miscellaneous.
(a) All
issues and disputes concerning, relating to or arising out of this Agreement
and
from the Executive’s employment by the Company, including, without limitation,
the construction and interpretation of this Agreement, shall be governed by
and
construed in accordance with the internal laws of the State of California,
without giving effect to the principles of conflicts of law or choice of law
of
any jurisdiction.
(b) The
Executive and the Company agree that any provision of this Agreement deemed
unenforceable or invalid may be reformed to permit enforcement of the
objectionable provision to the fullest permissible extent. Any provision of
this
Agreement deemed unenforceable after modification shall be deemed stricken
from
this Agreement, with the remainder of the Agreement being given its full force
and effect.
12
(c) The
Company shall be entitled to equitable relief, including injunctive relief
and
specific performance as against the Executive, for the Executive’s threatened or
actual breach of Sections 12 or 13 of this Agreement, as money damages for
a
breach thereof would be incapable of precise estimation, uncertain, and an
insufficient remedy for an actual or threatened breach of Sections 12 or 13
of
this Agreement. The Executive and the Company agree that any pursuit of
equitable relief in respect of Sections 12 or 13 of this Agreement shall have
no
effect whatsoever regarding the continued viability and enforceability of
Section 14 of this Agreement.
(d) Any
waiver or inaction by the Company or the Executive for any breach of this
Agreement shall not be deemed a waiver of any subsequent breach of this
Agreement.
(e) The
Executive and the Company independently have made all inquiries regarding the
qualifications and business affairs of the other which either party deems
necessary. The Executive affirms that he fully understands this Agreement’s
meaning and legally binding effect. Each party has participated fully and
equally in the negotiation and drafting of this Agreement. Each party assumes
the risk of any misrepresentation or mistaken understanding or belief relied
upon by him or it in entering into this Agreement.
(f) The
Executive’s obligations under this Agreement are personal in nature and may not
be assigned by the Executive to any other person or entity.
(g) This
instrument constitutes the entire Agreement between the parties regarding its
subject matter. When signed by all parties, this Agreement supersedes and
nullifies all prior or contemporaneous conversations, negotiations, or
agreements, oral and written, regarding the subject matter of this Agreement.
In
any future construction of this Agreement, this Agreement should be given its
plain meaning. This Agreement may be amended only by a writing signed by the
Company and the Executive.
(h) This
Agreement may be executed in counterparts. A counterpart transmitted via
facsimile, and all executed counterparts, when taken together, shall constitute
sufficient proof of the parties’ entry into this Agreement. The parties agree to
execute any further or future documents which may be necessary to allow the
full
performance of this Agreement. This Agreement contains headings for ease of
reference. The headings have no independent meaning.
(i) As
used
in this Agreement, unless the context expressly indicates otherwise, the word
“or” is inclusive and means “and/or,” and the word “including” and variations on
that word mean “including without limitation.”
(j) If
any
action at law or in equity (including any arbitration proceeding) is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to recover reasonable attorney’s fees, costs, and necessary
disbursements from the non-prevailing party in addition to any other relief
to
which such party may be entitled.
(k) THE
EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT
AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION THEREOF. THIS
13
AGREEMENT
IS EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY BOTH
PARTIES.
[Signature
Page Follows]
14
IN
WITNESS WHEREOF, the Company and the Executive have executed this Employment
Agreement as of the day and year first above written.
|
Xxxx
Xxxxxxxxx
|
|
GoFish
Corporation
|
|
|
By:
|
/s/
Xxxxxxx Xxxxxxx
|
||
|
/s/
Xxxx Xxxxxxxxx
|
|
Name:
Xxxxxxx Xxxxxxx
|
|
|
|
Title:Chief
Executive Officer
|
||
15
