EXHIBIT 99.1
ASSET PURCHASE AGREEMENT
This asset purchase agreement (this "Agreement") is dated March 14, 2005
and is between VIVID LEARNING SYSTEMS, Inc., a Delaware corporation ("Vivid"),
and TRUEACTIVE SOFTWARE, Inc., a Washington corporation ("TrueActive").
WHEREAS, the respective Boards of Directors and/or Executive Management
Committees of Vivid and TrueActive have determined that the purchase of the
assets of TrueActive by Vivid pursuant to the terms and conditions of this
Agreement is advisable, fair, and in the best interests of both Vivid and
TrueActive and their respective shareholders;
NOW, THEREFORE, in consideration of the representations, warranties,
covenants, and agreements contained herein and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
ARTICLE I
THE PURCHASE
Section 1.1 The Purchase. This Agreement pertains to the purchase of
specific assets of TrueActive; it does not constitute a purchase of the
TrueActive corporate entity nor of the shares of TrueActive. Upon the terms and
subject to the conditions of this Agreement, at the "Effective Time" as defined
in Section 1.2, Vivid shall have lawful, valid, and indefeasible title to all of
the assets of TrueActive delineated in Exhibit A, as well as full rights to the
names "WinWhatWhere", "TrueActive", and all derivatives thereof.
Within forty-five (45) days from the date of Closing, the original
owner/shareholders of TrueActive shall provide evidence to Vivid's General
Counsel that they are conducting business under a new name. The purpose of the
new entity will be to receive any amortized purchase payments, such as royalty
and note payments, owed by Vivid to TrueActive. In recognition of this, the
parties agree that payables and receivables shall be posted through the closing
date. Vivid shall be responsible for collecting the Interactive, Inc.
receivable. All other receivables shall remain payable to TrueActive. Vivid
shall not be responsible for satisfying any payables, except Vivid shall assume
responsibility for future Internet services (hosting and access) required to
support the sales of TrueActive/Vivid products.
Section 1.2 Effective Time of the Purchase. The Purchase shall become
effective upon the time of closing.
Section 1.3 Closing. The closing of the transactions contemplated by this
Agreement shall take place March 14, 2005 at 1:30 p.m. local time, at the
corporate offices of Vivid located at 000 Xxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxx. At
that time, Vivid shall deliver all funds and documents required by this
Agreement and TrueActive shall deliver a xxxx of sale for the assets.
ARTICLE II
CONSIDERATION
Section 2.1 Consideration. In exchange for the assets sold by True Active
to Vivid and for certain promises as noted in Section 2.2, Vivid shall issue to
TrueActive:
a) A check in the amount of One Hundred Twenty Thousand Dollars
($120,000.00).
b) A one (1) year promissory note with principal due and owing of One
Hundred Twenty Thousand Dollars ($120,000.00), payable in monthly
installments on the first day of each month, beginning May 1st,
2005.
c) Vivid warrants, carrying a four (4) year expiration date from date
of issue, representing a total of Eighty Thousand (80,000) shares of
Vivid Common Stock with an exercise price of One Dollar ($1.00) per
share and a two (2) year vesting schedule, wherein one-eighth (1/8)
shall vest at the end of each quarter. Said warrants shall be
distributed as follows: Thirty-nine Thousand One Hundred Eleven
(39,111) to Xxxxxxx X. Xxxxx; Forty Thousand Seven Hundred Eight
(40,708) to M. Xxxxx Xxxxxx; and One Hundred Eighty-one (181) to
Xxxxxxx Xxxxxxxx-Xxxxx. Such shares as may be issued pursuant to
such exercise will, upon issuance, be duly and validly issued, fully
paid and nonassessable and free from all taxes, liens and charges
with respect to the issuance thereof.
d) An employment agreement with Xxxxxxx X. Xxxxx to include terms as
delineated in the form of Exhibit B.
e) A royalty of eight percent (8%) - based on "net sale amount,"
defined as gross sale amount less credit card fees, shipping and
handling, applicable taxes, returns, reseller commissions, and
discounts - will be paid by Vivid to the corporate entity that is
the successor to TrueActive for all sales of: i) the existing
TrueActive Monitor product, as well as any developments thereto not
yet released; ii) products (un-enhanced) sold as "computer
monitoring" programs under the name "WinWhatWhere"; and, iii)
products under the name "TrueActive" for a period of three (3) years
from Closing. Royalties will be calculated according to calendar
quarters ending in March, June, September and December and, where
applicable, royalty checks will be mailed within the first ten
working days of the end of each quarter.
f) A royalty of four percent (4%) - based on "net sale amount," defined
as gross sale amount less credit card fees, shipping and handling,
applicable taxes, returns, reseller commissions and discounts - will
be paid by Vivid to the corporate entity that is the successor to
TrueActive for all sales of the Vivid branded or "sub-branded"
product(s) based on the existing TrueActive products that include a
refined dashboard and additional Vivid-funded enhancements to the
program for three (3) years after the official launch of the
program. Royalties will be managed as noted in Section 2.1(e).
g) Royalties will not be due to TrueActive for sales of products other
than those delineated above. It is acknowledged by the parties that
a portion of the afore-noted consideration is designated
specifically as the consideration in exchange for the covenant not
to compete and client lists.
h) Any and all taxes incurred as a result of this Agreement shall be
the responsibility of the party incurring said taxes.
Section 2.2 Covenant Not To Compete. TrueActive agrees that from and after
closing, a) the corporate officers of TrueActive will be reasonably available to
assist with the transition; and, b) will not, without Vivid's prior written
consent, directly or indirectly invest or engage in any business that is
competitive with the Vivid business lines, nor accept employment or render
services to a competitor as a director, officer, agent, employee, or consultant
for a period of two (2) years. This non-compete covenant shall be binding on the
officers, directors, and shareholders of TrueActive.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Vivid. Vivid hereby
represents and warrants to TrueActive that:
3.1.1 Organization; Corporate Power and Authority. Vivid is a
corporation duly and validly organized and existing under the laws
of the State of Delaware. Vivid has full power, legal capacity, and
authority to carry on its business as it is now conducted, to own,
lease, and operate its assets and properties, and to enter into,
perform, and comply with this Agreement.
3.1.2 Authorization; Enforceability; No Conflict. The execution,
delivery, and performance of this Agreement by Vivid have been duly
authorized by all necessary corporate action. This Agreement
constitutes the valid and binding obligation of Vivid, enforceable
in accordance with its terms except as limited by bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium, and
similar laws affecting creditors generally and by the availability
of equitable remedies. The execution, delivery, and performance of
this Agreement will not, or at Closing shall not, conflict with, or
result in the breach or termination of, or constitute a default
under, the articles of incorporation or bylaws of Vivid or any
agreement, commitment, or instrument, judgment, or decree to which
Vivid is a party or by which Vivid or its properties are bound.
3.1.3 Disclosure. To the best knowledge of Vivid, neither this
Agreement nor any other instrument/document delivered to TrueActive
pursuant to this Agreement contains any untrue statement of any
material fact or omits to state any material fact required to be
stated or necessary in order to make the statements contained herein
or therein not misleading.
3.1.4 Finances. Vivid represents that it is financially capable of
completing the purchase of TrueActive's business assets and fully
understands its financial obligations under this Agreement.
Section 3.2 Representations and Warranties of TrueActive. TrueActive
hereby represents and warrants to Vivid that:
3.2.1 Organization; Corporate Power and Authority. TrueActive is a
corporation duly and validly organized and existing under the laws
of the State of Washington. TrueActive has full power, legal
capacity, and authority to carry on its business as it is now
conducted, to own, lease, and operate its assets and properties, and
to enter into, perform, and comply with this Agreement.
3.2.2 Authorization; Enforceability; No Conflict. The execution,
delivery, and performance of this Agreement by TrueActive has been
duly authorized by all necessary corporate action. This Agreement
constitutes the valid and binding obligation of TrueActive,
enforceable in accordance with its terms except as limited by
bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium, and similar laws affecting creditors generally and by
the availability of equitable remedies. The execution, delivery, and
performance of this Agreement will not, or at Closing shall not,
conflict with, or result in the breach or termination of, or
constitute a default under, the articles of incorporation or bylaws
of TrueActive or any agreement, commitment, or instrument, judgment
or decree to which TrueActive is a party or by which TrueActive or
the properties of TrueActive are bound.
3.2.3 Liabilities. TrueActive has no liabilities or obligations of
any nature or kind, whether absolute or contingent, known or
unknown, accrued or unaccrued, due or to become due related to the
assets being purchased by Vivid.
3.2.4 Disclosure. To the best knowledge of TrueActive, neither this
Agreement nor any other instrument/document delivered to Vivid
pursuant to this Agreement contains any untrue statement of any
material fact or omits to state any material fact required to be
stated or necessary in order to make the statements contained herein
or therein not misleading.
3.2.5 Title to Assets. TrueActive is the record and beneficial owner
of the assets to be purchased by Vivid from TrueActive, free and
clear of any security interest, claim, lien, pledge, encumbrance, or
restriction whatsoever in law or in equity, and TrueActive's
delivery and/or granting of access to Vivid on closing of this
Agreement will convey to Vivid lawful, valid, and indefeasible title
thereto, free and clear of any security interest, claim, lien,
pledge, encumbrance, or restriction unless listed on Exhibit A.
Section 3.3 No Further Representations or Warranties. The parties hereto
acknowledge that due diligence has occurred. As a result, each party is
adequately informed about the other's past, current, and planned business
activities and strategies. Accordingly, the representations and warranties
contained in Sections 3.1 and 3.2 of this Agreement are exclusive, and no
further representations or warranties shall be deemed to have been made by
either party pursuant to this Agreement.
ARTICLE IV
SECURITIES LAW MATTERS AND REGISTRATION RIGHTS
Section 4.1 Shares for Investment. TrueActive covenants and agrees that
the Vivid warrants to be issued under this Agreement will be held for investment
and not with a view to distribute all or any part thereof in any transaction
which would constitute a "distribution" within the meaning of the Securities Act
of 1933 (hereinafter "Securities Act"). TrueActive and/or its shareholders will
not, directly or indirectly, offer, transfer, sell, assign, pledge, hypothecate,
or otherwise dispose of any of the Vivid warrants except in compliance with the
Securities Act. TrueActive and its shareholders agree that no transfer or
assignment of any Vivid warrants shall be effective if the assignment would
violate the provisions of the securities laws. If Vivid so requires, no
assignment shall be effective unless TrueActive and/or its shareholders deliver
an opinion of counsel to Vivid, which opinion must be satisfactory to Vivid in
all respects, to the effect that such transfer will not violate the securities
laws.
Section 4.2 Registration Rights. In the event Vivid shall undertake to
provide registration rights to its shareholders in general, TrueActive and its
shareholders shall have the right to participate in such registration rights
upon the terms and conditions applicable to all holders of warrants. The parties
acknowledge that the recently completed registration does not invoke the
application of this right nor does the registration of the Vivid Stock Option
Plan.
Section 4.3 Shareholder Information. So long as TrueActive and its
shareholders own the Vivid warrants, TrueActive and it shareholders will be
provided with a copy of any information which Vivid sends to its shareholders in
general.
ARTICLE V
TERMINATION OF AGREEMENT
This Agreement may be terminated at any time before the Closing by
mutual consent of the parties and in no other manner.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnification of TrueActive. Without in any way limiting or
diminishing the warranties, representations, or agreements herein contained or
the rights or remedies available to any party for a breach by one of the other
parties, Vivid agrees to indemnify, defend, and hold harmless TrueActive and its
designees, successors, and assigns from and against all losses, judgments,
liabilities, claims, damages, or expenses (including reasonable attorney fees)
of every kind, nature, and description in existence before or on the Closing,
whether known or unknown, absolute or contingent, joint or several, either
arising out of any failure of any representation or warranty of Vivid contained
in this Agreement to have been correct and materially complete when made or
arising out of or relating to the breach of any covenant or agreement of Vivid
contained in this Agreement.
Section 6.2 Indemnification of Vivid. Without in any way limiting or
diminishing the warranties, representations, or agreements herein contained or
the rights or remedies available to any party for a breach by one of the other
parties, TrueActive agrees to indemnify, defend, and hold harmless Vivid and its
designees, successors, parent company, and assigns from and against all losses,
judgments, liabilities, claims, damages, or expenses (including reasonable
attorney fees) of every kind, nature, and description in existence before or on
the closing, whether known or unknown, absolute or contingent, joint or several,
either arising out of any failure of any representation or warranty of
TrueActive contained in this Agreement to have been correct and materially
complete when made or arising out of or relating to the breach of any covenant
or agreement of TrueActive contained in this Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 Confidentiality. Each of the parties will treat and hold all
of the confidential information of the other exchanged as a result of the due
diligence and the transactions contemplated by this Agreement to the highest
level of care and confidence. No information of another party shall be released
without the prior written approval of said party; provided, however, the parties
may disclose such information as is necessary to comply with any information or
disclosure requirements of any governmental agency. In such event, the party to
whom the information belongs shall be immediately notified by the party from
whom the information has been requested.
Section 7.2 Amendment. This Agreement constitutes the entire agreement of
the parties and may not be modified or amended except by a writing signed by all
the parties.
Section 7.3 Notices. All notices, requests, demands, or other
communications which are required or may be given pursuant to the terms of this
Agreement shall be in writing and shall be deemed to have been duly given: (I)
on the date of delivery if personally delivered by hand, (ii) upon the third day
after such notice is (a) deposited in the United States mail, if mailed by
registered or certified mail, postage prepaid, return receipt requested, or (b)
sent by a nationally recognized overnight express courier, or (iii) by facsimile
upon written confirmation (other than the automatic confirmation that is
received from the recipient's facsimile machine) of receipt by the recipient of
such notice:
If to Vivid: VIVID LEARNING SYSTEMS, INC.
000 Xxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone No.: 509/ 000-0000
Facsimile No.: 509/ 943-5528
If to TrueActive: TRUEACTIVE SOFTWARE, INC.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone No.: 509/ 000-0000
Facsimile No.: 510/ 991-8955
Section 7.4 Survival of Representations. The representations and
warranties given under this Agreement shall be continuing and survive the
Closing of the transaction contemplated by this Agreement.
Section 7.5 Interpretation. The headings contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. Whenever the words "include", "includes", or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
Section 7.6 Miscellaneous. This Agreement (including the documents and
instruments referred to herein): (i) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof;
(ii) shall not be assigned by operation of law or otherwise without the prior
written consent of the other parties hereto; and (iii) shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of Washington, exclusive of the conflict of laws provisions thereof.
Section 7.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
Section 7.8 Parties in Interest. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective permitted successors and assigns, and nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
Specifically, in the event Vivid assigns this Agreement and/or is not the
surviving corporation in a merger, the new party in interest shall honor the
royalty payments delineated in Section 2.1.
Section 7.9 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
Section 7.10 Arbitration. In the event any dispute arises from this
Agreement, and the parties are unable to resolve such controversy, dispute or
disagreement within thirty (30) days after notice thereof is first delivered,
the parties agree to submit such to arbitration in accordance with the rules of
the American Arbitration Association ("AAA"). However, the parties also agree
that they are not required to use the services of the AAA and may mutually agree
to appoint an arbitrator to hear any dispute.
(a) Any arbitrator selected by mutual agreement of the parties shall be
experienced in the matter or action that is the subject of the
arbitration. The arbitrator so chosen shall be impartial and
independent of both parties.
(b) If the parties cannot agree to the mutual selection of an arbitrator
within twenty (20) days after the end of such thirty-day period,
then any party may in writing request the American Arbitration
Association to select an appropriate arbitrator, and such arbitrator
shall hear all arbitration matters arising under this section.
(c) Any arbitration shall take place in Xxxxxx County, Washington. The
decision of the arbitrator is binding and no suit at law or equity
shall be instituted by either party to this agreement except to
enforce the decision of the arbitrator. Any award rendered by the
arbitrator shall be final and judgment may be entered on it in any
court having jurisdiction.
Section 7.11 Attorney Fees. In the event either party is required to
employ an attorney to enforce rights hereunder, including initiating arbitration
to enforce the provisions of this Agreement, or for any cause arising out of
this Agreement, the substantially prevailing party in such action shall be
entitled to reimbursement from the other party for all of its court costs and
reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties are signing this Agreement on the date
stated in the introductory clause.
VIVID LEARNING SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx
Chief Executive Officer
TRUEACTIVE SOFTWARE, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx
President
EXHIBIT A
TRUEACTIVE SOFTWARE INC. LIST OF ASSETS INCLUDED IN SALE TO VIVID LEARNING
SYSTEMS, INC.
1. Complete source code and supporting files for the latest version of
TrueActive Monitor
Note: TrueActive Monitor is currently sold in 3 license
configurations: a 100-day license, a standard single-user,
non-expiring license, and a network starter + clients, non-expiring
license. The configurations are set using a license number. This
source code is sold "as is."
2. Complete source code and supporting files for the last version of
WinWhatWhere, a/k/a WinWhatWhere Investigator
Note: This source code is sold "as is."
3. Copyright for WinWhatWhere dated 3/8/1993 issued to Basic Systems Inc
(original name of TrueActive Software Inc.)
4. Registered Trademarks
WinWhatWhere, registered 6/11/02
WinWhatWhere Investigator, registered 2/26/02
Note: Section 8 of the Trademark Act requires the filing of an
Affidavit of Continued Use prior to the end of the sixth year
following the date of registration.
5. Unregistered Trademarks
TrueActive
TrueActive Software
TrueActive Monitor
6. Web site addresses xxx.xxxxxxxxxx.xxx and xxx.xxxxxxxxxxxx.xxx
7. All web site content
8. Complete customer database
9. Complete evaluation license list (sales leads)
10. Current qualified sales opportunities list
11. One current account receivable: Interactive, Inc., Huntington, NY -
Contact: Xxxx Xxxx Balance Due: $10,825
12. All inventory of software packaging
TrueActive Software CD Jackets, approx. 320
WinWhatWhere Investigator CD Case Inserts
CDs, approx. 400
13. Marketing materials for TrueActive and WinWhatWhere, including folders and
article reprints
EXHIBIT B
March 8, 2005
Xxxxxxx X. Xxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Dear Xxxx,
Based on recent discussions, I am very pleased to extend you an offer of
employment as a Senior Software Developer of Vivid Learning Systems, Inc.
located in Richland, WA, starting on March 16th, 2005. Attached are the terms of
your compensation.
In addition to the monthly salary offer, I am sure you will find the fringe
benefits package provided by Vivid to be competitive. As a Vivid employee, we
will provide you a copy of our employee handbook that outlines our employment
policies and benefits programs.
You will need to provide documentation that establishes identity and employment
eligibility. For example, if you are a U.S. citizen, a current drivers' license
and social security card will be sufficient. If you are not a U.S. citizen, we
will require other documents.
As discussed in our employment policies, your employment and compensation with
Vivid are consistent with Washington State "at will" law in that they can be
terminated with or without cause, and with or without notice, at any time, at
the option of either Vivid or yourself, except as otherwise provided by law.
Therefore, there is no intent that the terms of this offer letter create either
an expressed and/or implied contract of employment with Vivid.
During your work for Vivid, you agree to perform your best efforts, full time
for Vivid, and not to perform work for other businesses. The terms stated in
this letter are in addition to terms of your Vivid "Non-Disclosure Agreement"
wherein you agree not to disclose confidential information, not compete with
Vivid, that your work (whether physical property or intellectual property) is
the property of Vivid and that you will return all materials upon termination of
your work with Vivid.
Let me say again that I am very pleased to make this offer of employment with
Vivid and we all look forward to working with you. You will be a great addition
to our team.
Very truly yours,
Xxxxx X. Xxxxx
President & CEO
Enclosure
cc: HRN
Finance
File
ACCEPTED:
Name: /s/ Xxxxxxx X. Xxxxx
------------------------------
Date: March 14, 2005
------------------------------
TERMS OF EMPLOYMENT - XXXXXXX X. XXXXX ("EMPLOYEE")
EMPLOYMENT OF EMPLOYEE.
Vivid will employ Employee in the capacity of Senior Software Developer.
The term of Employee's employment ("Employment Term") under this Agreement shall
be a period of two (2) years, commencing on March 16th, 2005 and expiring at
5:00 p.m. (local time at Vivid's headquarters) on March 15th, 2007, unless
extended in writing by both Vivid and Employee, or unless earlier terminated
pursuant to these Terms.
Notwithstanding anything in these Terms to the contrary, Employee acknowledges
and agrees that Employee's employment with Vivid is "at will" and that
Employee's employment may be terminated by Vivid at any time and for any reason,
subject to applicable laws.
POSITION AND DUTIES. Employee accepts and agrees to such employment and agrees
to be subject to the general supervision, advice, and direction of the Vivid
Chief Technology Officer or any individual that the Vivid Chief Technology
Officer may designate. Employee shall also perform such other duties as are
customarily performed by an employee in a similar position and such other and
unrelated services and duties as may be assigned from time to time. Employee
shall devote his full business time and attention and best efforts to Vivid's
business and affairs, except with Vivid's prior approval in case of leaves of
absence, vacation, and service on corporate, civil, or charitable boards or
committees involving no conflict of interest with Vivid's interests and not
significantly interfering with the regular performance of his Vivid duties.
COMPENSATION
Base Salary. Employee shall receive an annual base salary of $75,000. Employee's
base salary may be reviewed in accordance with Vivid's regular compensation
practices. Base salary shall be paid in substantially equal periodic
installments, but not less frequently than monthly. The parties acknowledge that
Employee's base salary shall be processed and paid through Human Resource
Novations, Inc. Employee's base salary may be subject to periodic updates and
adjustments, as set forth in the Vivid Employee Compensation Plan and
incorporated herein by reference.
Bonus. Employee may be entitled to performance bonuses and performance based
stock option awards in accordance with the Vivid Employee Compensation Plan.
Fringe Benefits. Employee may participate in all benefit programs that Vivid
from time to time makes available to other employees holding positions similar
to that of Employee, subject to applicable eligibility rules.
Expenses. In accordance with Vivid policies, Employee shall be reimbursed in the
amount of $300 per month for the home office in which Employee will primarily
perform his duties, said reimbursement to continue as long as Employee is
employed by Vivid.
TERMINATION.
Due To Death or Permanent Disability. Employee's employment shall terminate upon
his death or permanent disability.
By Vivid. Vivid may terminate Employee's employment at any time, with or without
Just Cause. Vivid shall have "Just Cause" if its Chief Executive Officer in the
exercise of his reasonable judgment, determines that Employee has committed an
act or acts constituting any of the following: (i) dishonesty or fraud in
connection with his duties for Vivid; (ii) disclosure of confidential or private
information regarding Vivid or its parent company; (iii) sexual harassment or
other violation of laws prohibiting discrimination, in each case, committed in
connection with his duties for Vivid; (iv) materially aiding a competitor of
Vivid or its parent company; (v) misappropriation of a business opportunity of
Vivid; (vi) repeated and/or gross misconduct or negligence, in each case in the
performance of his duties for Vivid; or, (vii) a felony conviction.
By Employee. Employee may terminate his employment at any time, with or without
Good Reason. Employee shall have "Good Reason" to terminate in the event of (i)
a forced relocation of the place for Employee's performance of his duties
reasonably requiring a move of more than fifty (50) miles in Employee's
residence; or, (ii) a material breach of a material provision of these Terms,
which breach remains uncured thirty (30) days after written notice of such
breach is delivered to Vivid. Good Reason shall not exist if Vivid
contemporaneously has Just Cause to terminate Employee's employment.
PAYMENTS UPON TERMINATION.
If Employee's employment is terminated (i) due to Employee's death or permanent
disability; (ii) by Vivid for Just Cause; or, (iii) by Employee without Good
Reason, Vivid shall pay Employee's Base Salary through the date of termination,
and provide such other payments and benefits as applicable law or Vivid's
employee benefit policies may require.
If Employee's employment is terminated (i) by Vivid without Just Cause; or, (ii)
by Employee for Good Reason, then Vivid shall pay Employee an amount equal to
four (4) months salary.
