Exhibit 10.17
PERSONAL SERVICES AGREEMENT
This PERSONAL SERVICES AGREEMENT is made as of November 17, 1999 and shall
be effective as of the date of the consummation of VStream, Inc.'s Series D
Preferred Stock Financing (the "Effective Date"), by and between VStream, Inc.,
a Delaware corporation (the "Company") having its principal place of business at
0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and Xxxx Xxxxxxxxx
("Executive").
WHEREAS, the Company desires to employ Executive pursuant to the terms and
conditions and for the consideration set forth in this Agreement and Executive
desires to enter the employ of the Company pursuant to such terms and conditions
and for such consideration;
WHEREAS, the provisions of this Agreement are a condition of Executive
being employed by Company, of Executive's having access to confidential business
and technological information, and of Executive's being eligible to receive
certain benefits of the Company. This Agreement is entered into, and is
reasonably necessary, to protect confidential information and customer
relationships to which Executive may have access, and to protect the goodwill
and other business interests of the Company; and
WHEREAS, the provisions of this Agreement are also a condition to
Executive's agreement to provide personal services to Company.
NOW THEREFORE, in consideration of the mutual promises and covenants agreed
to herein, the receipt and sufficiency of which are hereby acknowledged, Company
and Executive agree as follows:
1. Position, Term, Duties, Responsibilities
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(a) Position. Executive shall be employed by the Company in the
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capacity as Chief Executive Officer and Chairman of the Board of Directors
of the Company (the "Board") to act in accordance with the terms and
conditions hereinafter set forth.
(b) Duties. The Executive shall, during the term of his employment
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hereunder, devote his full normal working time, energies and attention to
the duties of his employment, as they may be established from time to time
by the Board consistent with the position and office occupied by Executive.
Executive shall comply with the provisions of this Agreement and all
reasonable rules, regulations and administrative directions now or
hereafter established by the Company.
(c) Term. This Agreement shall be for a term beginning on the
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Effective Date and terminating the earlier of (i) two years from the
Effective Date (the "Expiration Date"), or (ii) the date on which
Executive's employment is terminated pursuant to Section 3 of this
Agreement (the "Term"); provided that the term shall be automatically
extended indefinitely thereafter until either party shall have given notice
to the contrary
(the "Term Termination Notice"), in which event the Term shall expire on
the six month anniversary of such Term Termination Notice.
(d) Other Activities. During Executive's employment with the Company,
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Executive shall devote his entire business time, attention and energies to
the performance of his duties and functions under this Agreement; provided,
however that nothing in this Agreement shall prevent Executive from: (i)
serving as a director of any entity that is not a Competitive Business (as
defined in Section 5); (ii) managing his personal investments and affairs
and the personal investments and affairs of any of his family members;
(iii) acquiring any interest in any entity, whether or not part of a
control group, that is directly or indirectly owned or controlled, in whole
or in part, by Executive and/or one or more members of his family, or a
partnership, trust or other entity held by or for the benefit of Executive
and/or one or more members of his family and/or (iv) performing any
services for any entity, whether or not part of a control group, that is
directly or indirectly owned or controlled, in whole or in part, by
Executive and/or one or more members of his family, or a partnership, trust
or other entity held by or for the benefit of Executive and/or one or more
members of his family; provided, however, that any service shall be
insubstantial and shall not include any active involvement in the
management of such entity and provided further that such entities do not
constitute a Competitive Business (as defined in Section 5).
2. Compensation, Bonuses and Benefits
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(a) Base Salary. During Executive's employment with the Company, the
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Company shall pay Executive a base annual salary, (the "Base Salary") which
at the time of the execution of this Agreement is Two Hundred and Fifteen
Thousand Dollars ($215,000). The Base Salary shall be payable in accordance
with the Company's normal payroll schedule, less all applicable tax
withholdings for state and federal income taxes, FICA and other deductions
as required by law and/or authorized by the Executive. The Executive's Base
Salary shall be reviewed no less frequently than annually to determine
whether or not the same should be increased in light of the duties and
responsibilities of the Executive and the performance thereof, as
determined by review of comparably situated companies and, if it is
determined that an increase is merited, such increase shall be promptly put
into effect and the base salary of the Executive as so increased shall
constitute the base salary of the Executive for purposes of this Section 2.
(b) Incentive Compensation Program. During Executive's employment with
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the Company, Executive shall be eligible for a discretionary
performance-based bonus based upon the actual performance of the Company in
relation to target milestones agreed upon by the Compensation Committee of
the Board, or the Board. The Compensation Committee or the Board will set
such milestones on or before December 31st of each year of the Term. Any
bonus payable as a performance bonus shall be in the amount, and paid at
the time and in the manner, as determined by the Compensation Committee or
the Board.
(c) Initial Stock Options. At the Effective Date, the Company shall
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grant Executive stock options in 200,000 shares of the Company's $.00l par
value common
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stock pursuant to the Company's 1997 Stock Option/Stock Issuance Plan (the
"1997 Plan") with the purchase price, expiration date, type of option,
vesting and other terms all as described on Exhibit A attached hereto.
Subsequent grants may be awarded based on your performance and
contributions to the business. Any stock options are subject to the
approval of the Board.
(d) Benefits. Executive shall also be entitled to participate in such
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employee benefit plans which the Company provides or may establish from
time to time for the benefit of employees, subject to the terms of each
such plan and subject to the right of the Company and the Board to modify,
revise or eliminate such benefit plans from time to time in their sole
discretion. Executive shall pay for the portion of the cost of such
benefits as is from time-to-time established by Company as the portion of
such cost to be paid by senior executives of Company.
(e) Costs and Expenses. Executive shall be entitled to reimbursement
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for all ordinary reasonable out-of-pocket business expenses which are
reasonably incurred by him in the furtherance of the Company's business, in
accordance with the policies adopted from time to time by the Company or
the Board. Executive will comply with the Company's travel policies as
established from time to time by the Company or the Board.
(f) Vacation. During the Term, Executive shall be entitled to four
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weeks of paid vacation per year so long as the absence of Executive does
not interfere in any material respect with the performance by Executive of
Executive's duties hereunder. Executive will use his best efforts to
schedule vacation periods to minimize disruption of the Company's business.
3. Termination.
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(a) Mutual Agreement. This Agreement may be terminated at any time by
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the mutual agreement of the Company and Executive, expressed in writing.
(b) Voluntary. Executive may terminate this Agreement with or without
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the consent of the Company by giving written notice of his intent to
terminate with the effective date of termination at least one hundred (100)
days after the effective date of the notice of termination. After such
notice the Company may accelerate the date of termination without being in
breach hereof.
(c) Without Cause. The Company may terminate this Agreement at any
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time without Cause upon twenty (20) days prior notice.
(d) Disability or Death. The Company may terminate this Agreement upon
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the death or disability of Executive. For purposes of this Agreement,
Executive shall be considered disabled if he is unable to perform his
duties under this Agreement as a result of injury, illness or other
disability for a period of one hundred eighty (180) consecutive days, or
one hundred eighty (180) days in a three hundred sixty-five (365) day
period, and the Board reasonably determines that Executive has been unable
to perform his
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duties for the one hundred eighty (180) day period as a result of injury,
illness or other disability.
(e) For Cause by the Company. The Company may terminate this
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Agreement for "Cause", as defined below, immediately upon written notice to
Executive. "Cause" shall mean:
(i) If Executive materially violates any term of this Agreement
and such action or failure is not substantially remedied or reasonable
steps to effect such substantial remedy are not commenced within
twenty (20) days of written notice from the Company to Executive.
(ii) Dishonesty which is not the result of an inadvertent or
innocent mistake of Executive with respect to the Company or any of
its subsidiaries;
(iii) Willful misfeasance or nonfeasance of duty by Executive
intended to injure or having the effect of injuring in some material
fashion the reputation, business or business relationships of the
Company or any of its subsidiaries or any of their respective
officers, directors or employees;
(iv) Conviction of Executive upon a charge of any crime
involving moral turpitude or a crime other than a vehicle offense
which could reflect in some material fashion unfavorably upon the
Company or any of its subsidiaries; or
(v) Willful or prolonged absence from work by the Executive
(other than by reason of disability due to physical or mental illness)
or failure, neglect or refusal by the Executive to perform his duties
and responsibilities without the same being corrected upon twenty (20)
days prior written notice.
(f) For Good Reason by the Executive. If (i) there is a material
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reduction or change of Executive's reporting relationship, job duties,
responsibilities or requirements that is inconsistent with the position or
positions listed in Section 1(a) and the Executive's prior reporting
relationship, duties, responsibilities or requirements; (ii) there is a
reduction in Executive's salary then in effect, other than a reduction
comparable to reductions generally applicable to similarly situated
employees of the Company; (iii) the Company requires Executive to relocate
to a facility or location more than 50 miles from the Company's current
location; or (iv) the Company materially breaches this Agreement, Executive
may at his option terminate his employment and such termination shall be
considered to be a termination of Executive's employment by the Company for
reasons other than Cause. Such termination is a termination by Executive
for Good Reason.
(g) Termination of Executive Upon Change of Control. In the event
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Executive's employment is terminated prior to the Expiration Date by a
Change of Control of the Company, as defined below, Company shall: (i) pay
to Executive, in a lump sum within ten (10) days after the date Executive's
employment is terminated, the amount of Executive's then current Base
Salary pursuant to Section 2(a) above through
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the termination date of this Agreement or for a period of eighteen (18)
months, whichever is longer, beginning in the month next following such
termination; (ii) pay to Executive the portion of the incentive
compensation for the year of such termination which is (A) determined by
objective measurement standards under Section 2(b), and (B) would have been
paid to Executive had Executive been continuously employed under this
Agreement through the Expiration Date. Payment of such portions of
incentive compensation, if any, shall be made to Executive within 10
business days after the date, if any, on which senior executives of Company
receive payment of their incentive compensation under such incentive
compensation program; and (iii) the Initial Stock Options shall irrevocably
vest immediately prior to the consummation of a Change of Control (as
defined below) and, if such event results in a successor firm, Executive
shall receive, in lieu of the shares so vested, the cash, stock and other
securities or property in the successor firm to which he would have been
entitled if he had exercised the Initial Stock Options immediately prior to
the Change of Control or, at the Company's election, the Initial Stock
Options shall be converted into an equivalent number of like securities,
fully vested as aforesaid, preserving the post-tax economics of the Initial
Stock Options, including the substantive terms thereof. The term of the
Initial Stock Options shall be ten years from the date of grant. The
Initial Stock Options shall not be transferable except by will or by reason
of the laws of descent and distribution. Thereafter Executive shall not be
entitled to receive, and the Company shall not be obligated to provide
Executive with any additional salary, payments or benefits of any kind
other than those specifically set forth in this Section 3(g).
As used herein, "Change of Control" shall mean the occurrence of one
or more of the following:
(i) a person or entity other than an Affiliate becomes an
Acquiring Person;
(ii) a complete liquidation or dissolution of the Company other
than a liquidation or dissolution occurring after any of the following
transactions: the merger or consolidation of the Company with an
Affiliate, the transfer of fifty percent (50%) or more of the Voting
Stock of the Company to an Affiliate or Affiliates or the sale or
other transfer of all or substantially all of the assets of the
Company to an Affiliate or Affiliates;
(iii) the sale of all or substantially all of the Company's
assets to a single purchaser or group of affiliate purchasers, other
than any Affiliate or Affiliates; or
(iv) the Company engages in a merger or consolidation with
another entity other than an Affiliate and immediately after that
merger or consolidation, the persons or entities which were
shareholders of the Company immediately prior to that merger or
consolidation hold, directly or indirectly, less than fifty person
(50%) of the Voting Stock of the surviving entity.
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"Affiliate" shall mean any corporation, partnership, trust or other
entity of which the Company and/or any of its Affiliates directly or
indirectly owns a majority of the outstanding shares of any class of equity
security of such corporation, partnership, trust or other entity and any
corporation, partnership, trust or other entity which directly or
indirectly owns a majority of the outstanding shares of any class of equity
security of the Company or any of its Affiliates.
"Voting Stock" shall mean, with respect to a corporation, the capital
stock of any class or classes of that corporation having general voting
power under ordinary circumstances, in the absence of contingencies, to
elect directors of such corporation and, with respect to any other entity,
the securities of that entity having such general voting power to elect the
members of the managing body of that entity.
4. Payments at Termination.
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(a) Upon (i) termination of this Agreement by the Company under
Section 3(c) titled "Without Cause" or (ii) termination of this Agreement
by Executive under Section 3(f) titled "For Good Reason by the Executive,"
Executive shall receive monthly payments equal to his Base Salary prior to
termination ("Applicable Base Salary") through the termination date of this
Agreement or for a period of eighteen (18) months, whichever is longer,
beginning in the month next following such termination. In either case
Executive shall receive all accrued compensation and unreimbursed expenses
to the date of termination as provided herein. The monthly payments
provided for in this Section 4(a) shall be paid in accordance with the
Company's normal payroll schedule, less applicable tax withholdings for
state and federal taxes and other deductions required by law and shall not
be reduced by compensation the Executive may receive from other sources. In
either such case of termination, all unexercised options granted pursuant
to the Company's stock option plan (the "Plan") shall vest and become
exercisable on the day of termination. For any such non-statutory stock
option or incentive stock option, the period for exercise of the option
shall continue for the shorter of the maximum length of time the option is
exercisable under the Plan as though the service of Executive had not
terminated, and three (3) years after the date of termination of service,
provided, however, that if the existence of this sentence would cause any
incentive stock option not to qualify as an incentive stock option pursuant
to Section 422 of the Internal Revenue Code of 1986, as amended, ("Section
422") at any time prior to ninety (90) days after termination of employment
as provided in Section 422, this sentence shall be null and void as to such
incentive stock option.
(b) If the Company terminates this Agreement due to disability, under
Section 3(d) titled "Disability or Death," Executive or his estate shall
receive the disability payments provided for by the Company's disability
insurance policy.
(c) If Executive terminates this Agreement without cause under Section
3(b), titled "Voluntary", or if this Agreement is terminated under Section
3(a), titled "Mutual Agreement," or if this Agreement is terminated by the
Company under Section 3(e) titled "For Cause by the Company," Executive
shall not be entitled to any further payments
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except unreimbursed expenses to the date of termination as provided herein
and any accrued compensation and as provided in Section 4(d).
(d) In each of the foregoing cases, termination is the date of actual
termination, not the date notice of termination is given. Other than
payments owing under a provision providing for payments at a different
time, all payments for accrued unpaid monthly compensation shall be made
within ten (10) days after the end of the month following the month in
which termination occurred and all payments for reimbursement shall be made
within forty-five (45) days after the end of the month following the month
in which termination occurred.
(e) Unless specified otherwise in any bonus plan or bonus agreement,
if termination occurs during a bonus period pursuant to Section 3(c).
titled "Without Cause" or Section 3(f) titled "For Good Reason by the
Executive," or Section 3(d) titled "Disability or Death," and based upon
the results of the full bonus period the bonus would have been earned, any
bonus which would have been earned shall be based upon the number of
calendar days in such bonus period which have elapsed at the date of
termination. Unless specified otherwise in any such bonus plan or bonus
agreement, if Executive is terminated "For Cause by the Company" (Section
4(e)), or Executive terminates without Cause (Section 4(c).) or Executive
after termination violates a confidentiality, covenant not to compete, or
"no hire" or "no raid" agreement with the Company, its parent (if any) or a
direct or indirect Company subsidiary or affiliate, then the Company shall
have no obligation to pay any earned or unearned bonus or the payments
provided for in the first sentence of Section 4(a) hereof.
(f) The foregoing rights in this Section 4 are Executive's exclusive
rights to payment from the Company in the event of termination of this
Agreement except for amounts which the Company is required to pay under
applicable statute or regulation, payments under insurance policies, and
payments owing under other written agreement(s) (if any) between the
Company and Executive.
(g) Employment at Will After Termination of Agreement. If, upon the
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termination of this Agreement pursuant to Section 3, the parties to this
Agreement agree that Executive shall remain employed by the Company, then
Executive's employment with the Company will continue in accordance with,
and subject to, the terms and conditions of this Agreement, except that
Executive's continued employment will not be for any specific term but will
be at-will and either the Company or Executive may terminate the employment
relationship at any time for any reason whatsoever. If the Company then
terminates the employment of Executive pursuant to Section 3(c) or
Executive terminates the relationship for Good Reason pursuant to Section
3(f), Executive shall be entitled to his salary and bonus through the date
of termination. If the Company terminates the employment of Executive for
Cause pursuant to Section 3(e) or Executive voluntarily terminates his
employment pursuant to Section 3(b), Executive shall be entitled to his
salary through the date of termination and no bonus payments.
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5. Non-Competition.
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(a) Executive covenants and agrees with the Company that so long as he
is employed by the Company and for a period of the longer of (i) twelve
(12) months after termination of Executive's employment for any reason or
(ii) during which any payments are made to Executive or for his benefit
following termination of his employment pursuant to Section 4 of this
Agreement, Executive will not engage or participate, directly or
indirectly, as principal, agent, employee, employer, consultant, advisor,
sole proprietor, stockholder, partner, independent contractor, trustee,
joint venturer or in any other individual or representative capacity
whatever, in the conduct or management of, or own any stock or other
proprietary interest in, or debt of, any business organization, person,
firm, partnership, association, corporation, enterprise or other entity
that shall be engaged in any business (whether in operation or in the
planning, research or development stage) that is a Competitive Business
anywhere in the Restricted Territory, unless Executive shall obtain the
prior written consent of the Board, given in its sole discretion, which
consent shall make express reference to this Agreement. Notwithstanding the
foregoing, Executive may make passive investments in any company whose
stock is listed on a national securities exchange or traded in the
over-the-counter market so long as he does not come to own, directly or
indirectly, more than five percent (5%) of the equity securities of such
company. For purposes of this Agreement, a business shall be considered a
"Competitive Business" if it involves or relates to (i) any business in
which the Company is actively engaged on the date of termination or any
business in which during the twelve (12) months immediately preceding the
date of termination the Company actively contemplated engaging (as
evidenced by inclusion in a written business plan or proposal) or (ii) any
business in which an Affiliate is actively engaged on the date of
termination or any business in which during the twelve (12) months
immediately preceding the date of termination an Affiliate actively
contemplated engaging (as evidenced by inclusion in a written business plan
or proposal). The term "Restricted Territory" shall mean each and every
county, province, state, city or other political subdivision of the United
States.
(b) During the time of Executive's employment and for the longer of
(i) twelve (12) months after termination of Executive's employment for any
reason or (ii) during which any payments are made to Executive or for his
benefit following termination of his employment pursuant to Section 4 of
this Agreement, without the express, prior written consent of an executive
officer of the Company, Executive shall not engage in any of the following
conduct:
(i) Hire, attempt to hire or assist any other person or entity in
hiring or attempting to hire any current employee of the Company or
any person who was a Company employee within the three (3) month
period prior to the termination of Executive's employment; provided,
however that this prohibition on solicitation of the Company's
employees shall not apply to the person acting as the Executive's
current executive assistant as of the date of termination of
Executive's employment; and provided further that Executive agrees
that Executive will provide the Company with thirty (30) days prior
written notice of Executive's
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intent to solicit and/or hire such executive assistant upon
Executive's termination of employment.
(ii) Solicit, divert, or take away, in competition with the
Company, the business or patronage of any current Company customer.
Notwithstanding the foregoing, this restriction shall not apply to any
person or entity who is no longer a customer at the time of any such
solicitation by Executive.
(c) Executive agrees that if he acts in violation of Sections 5 or 7
of this Agreement, the number of days that such violation exists will be
added to any period of limitations on the specific activities.
(d) The covenants contained in paragraph (a) shall be construed as a
series of separate covenants, one for each county, province, state, city or
other political subdivision of the Restricted Territory. Except for
geographic coverage, each such separate covenant shall be deemed identical
in terms to the covenant contained in paragraph (a). If, in any judicial
proceeding, a court refuses to enforce any of such separate covenants (or
any part thereof), then such unenforceable covenant (or such part) shall be
eliminated from this Agreement to the extent necessary to permit the
remaining separate covenants (or portions thereof) to be enforced. In the
event that the provisions of this Section 5 are deemed to exceed the time,
geographic or scope limitations permitted by applicable law, then such
provisions shall be reformed to the maximum time, geographic or scope
limitations, as the case may be, permitted by applicable laws.
(e) Without limitation of any of the provisions of this Section 5, any
payments to be made to Executive or for his benefit following termination
of his employment with the Company pursuant to Section 4 of this Agreement
shall be deemed to secure his agreements set forth in this Section 5 and
such payments may be terminated by the Company if Executive fails to
observe the agreements set forth in this Section 5 and fails to cure such
failure within ten (10) days of receipt of written notice of such failure.
(f) Executive (i) acknowledges that his skills and experience are such
that he can anticipate finding employment at a senior level in his
profession, and (ii) represents and agrees that the restrictions imposed by
this Section 5 on engaging in competitive business activities are necessary
for the protection of the legitimate interests and competitive position of
the Company and do not impose undue hardships on him.
6. Termination Obligations of Executive
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(a) Return of the Company's Property. Executive hereby acknowledges
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and agrees that all personal property, including, without limitation, all
books, manuals, records, reports, notes, contracts, lists, files, disks and
other media with Company information, blueprints, and other documents, or
materials, or copies thereof, and equipment furnished to or prepared by
Executive in the course of or incident to Executive's employment, belong to
the Company and shall be promptly returned to the Company upon termination
of Executive's employment.
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(b) Cooperation in Pending Work. For two (2) months after termination
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of Executive's employment, Executive agrees to fully cooperate with the
Company in all matters relating to the winding up of pending work on behalf
of the Company and the orderly transfer of work to other employees of the
Company following any termination of Executive's employment. For two (2)
years after termination of Executive's employment, Executive shall also
cooperate in the resolution of any dispute, including litigation of any
action, involving the Company that relates in any way to Executive's
activities while employed by the Company. In the event, however,
Executive's services to the Company under this Section 6(b) exceed forty
(40) hours, the Company shall pay Executive for his services at a rate
equivalent to his Base Salary at the time of termination of employment and
shall pay Executive's out-of-pocket expenses incurred in connection with
his services. Executive shall not be entitled to compensation under this
Section 6(b) if Executive is terminated for "Cause" as defined in Section
3(e) of this Agreement. Such activities and all such activities shall be
scheduled for mutually convenient times.
7. Confidentiality.
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(a) Confidential Information. Executive acknowledges that he has had
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and will have access to certain information related to the business,
operations, future plans and customers of the Company, the disclosure or
use of which could cause the Company substantial losses and damages.
Accordingly, Executive covenants that during the term of his employment
with the Company and thereafter he will keep confidential all information
and documents furnished to him by or on behalf of the Company and not use
the same to his advantage, except to the extent such information or
documents are lawfully obtained from other sources on a non-confidential
(as to the Company) basis or are in public domain through no fault on his
part or is consented to in writing by the Company.
(b) Innovations, Patents, and Copyrights. Executive agrees to promptly
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disclose, in writing, all Innovations to the Company. Executive further
agrees to provide all assistance requested by the Company, at its expense,
in the preservation of its interests in any Innovations, and hereby assigns
and agrees to assign to the Company all rights, title and interest in and
to all worldwide patents, patent applications, copyrights, trade secrets
and other intellectual property rights or "Moral Rights" in any Innovation.
Furthermore, during the term of this Agreement, the Company may, with
Executive's written permission (such permission not to be unreasonably
withheld), use Executive's name and image as appropriate in the conduct of
its business.
"Innovations" shall mean all developments, improvements, designs,
original works of authorship, formulas, processes, software programs,
databases, and trade secrets, whether or not patentable, copyrightable or
protectable as trade secrets, that Executive by himself or jointly with
others, creates, modifies, develops, or implements during the period of
Executive's employment which relate in any way to the Company's business.
The term Innovations shall not include Innovations developed entirely on
Executive's own time without using the Company's equipment, supplies,
facilities or Confidential Information, and which neither relate to the
Company's business, nor result from any work performed by or for the
Company.
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8. Right to Injunctive Relief. Executive agrees and acknowledges that a
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violation of the covenants contained in Sections 5, 6 and 7 of this Agreement
will cause irreparable damage to the Company, and that it is and may be
impossible to estimate or determine the damage that will be suffered by the
Company in the event of a breach by Executive of any such covenant. Therefore,
Executive further agrees that in the event of any violation or threatened
violation of such covenants, the Company shall be entitled as a matter of course
to an injunction out of any court of competent jurisdiction restraining such
violation or threatened violation by Executive, such right to an injunction to
be cumulative and in addition to whatever other remedies the Company may have.
9. Alternative Dispute Resolution. The Company and Executive mutually agree
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that any controversy or claim arising out of or relating to this Agreement or
the breach thereof, or any other dispute between the parties relating in any way
to Executive's employment with the Company or the termination of that
relationship, including disputes arising under the common law and/or any federal
or state statutes, laws or regulations, shall be submitted to mediation before a
mutually agreeable mediator, which cost is to be borne equally by the parties.
In the event mediation is unsuccessful in resolving the claim or controversy,
such claim or controversy shall be resolved exclusively by binding arbitration.
The claims covered by this Agreement ("Arbitrable Claims") include, but are not
limited to, claims for wages or other compensation due; claims for breach of any
contract (including this Agreement) or covenant (express or implied); tort
claims; claims for discrimination (including, but not limited to, race, sex,
religion, national origin, age, marital status, medical condition, or
disability); claims for benefits (except where an employee benefit or pension
plan specifies that its claims procedure shall culminate in an arbitration
procedure different from this one), and claims for violation of any federal,
state, or other law, statute, regulation, or ordinance, except claims excluded
in the following paragraph. The parties hereby waive any rights they may have to
trial by jury in regard to Arbitrable Claims.
Claims Executive or the Company may have regarding Workers' Compensation or
unemployment compensation benefits and the noncompetition provisions of this
Agreement are not covered by the arbitration and mediation provisions of this
Agreement. Claims Executive or the Company may have for violation of the
proprietary information provisions of this Agreement as well as the terms and
provisions of Exhibit A of this Agreement are not covered by the arbitration and
mediation provisions of this Section 9 of this Agreement.
Arbitration under this Agreement shall be the exclusive remedy for all
Arbitrable Claims. The Company and Executive agree that arbitration shall be
held in or near either Boulder or Denver, Colorado and shall be in accordance
with the then-current Employment Dispute Resolution Rules of the American
Arbitration Association, before an arbitrator licensed to practice law in
Colorado. The arbitrator shall have authority to award or grant both legal,
equitable, and declaratory relief. Such arbitration shall be final and binding
on the parties. The Federal Arbitration Act shall govern the interpretation and
enforcement of this Section 9 pertaining to Alternative Dispute Resolution.
This Agreement to mediate and arbitrate survives termination of Executive's
employment.
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10. Use of Executive's Likeness. For so long as Executive is employed by
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the Company or an Affiliate, Executive authorizes the Company or an Affiliate to
use, reuse and to reasonably grant others the right to use and reuse without
additional compensation, Executive's name, photograph, likeness (including
caricature), voice and biographical information and any reproduction or
simulation thereof in any media now known or hereafter developed, for valid
business purposes of the Company or an Affiliate.
11. Exclusion of Property of Others. Executive will not bring to the
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Company or use in the performance of his duties any documents or materials of a
former employer that are not generally available to the public or that have not
been legally transferred to the Company.
12. Executive's Authorization to Deduct Amounts Owed. Upon Executive's
------------------------------------------------
separation from employment, Company is authorized to deduct from Executive's
final wages or other monies due Executive any debts or amounts owed to Company
by Executive.
13. Integration. This Agreement and any exhibits attached hereto shall
-----------
constitute the entire Agreement relating to the employment of Executive. This
Agreement shall be governed by the laws of Colorado, excluding laws on choice of
law. Any litigation regarding this Agreement shall only be brought and heard in
the federal or state courts located in Denver, Colorado and no transfer of venue
outside such area shall be permitted.
14. Unenforceability. If any paragraph or subparagraph of this Agreement or
----------------
any part thereof shall be unenforceable under any applicable laws,
notwithstanding such unenforceability the remainder of this Agreement shall
remain in full force and effect.
15. Binding. This Agreement shall inure to the benefit of and be binding
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upon, the Company and its affiliates and subsidiaries.
16. Attorneys' Fees. In the event of any legal or arbitration action or
---------------
proceeding to enforce or interpret the provisions hereof, the prevailing party
shall be entitled to reasonable attorneys' fees and costs, whether or not the
proceeding results in a final judgment.
17. Survival. Terms which by their terms or sense are to survive
--------
termination hereof shall so survive.
18. Notice. All notices or other communications required or permitted
------
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered by hand, overnight delivery or mailed, postage prepaid, by
certified or registered mail, return receipt requested, and addressed to the
Company:
VStream, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Board of Directors
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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and to Executive at:
Xxxx Xxxxxxxxx
0000 Xxxx Xxxx
Xxxxxxx XX 00000
Telephone: (000) 000-0000
Executive and the Company shall be obligated to notify the other party of any
change in address. Notice of change of address shall be effective only when made
in accordance with this Section.
19. Executive Acknowledgment. The parties acknowledge (a) that they have
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consulted with or have had the opportunity to consult with independent counsel
of their own choice concerning this Agreement, and (b) that they have read and
understand the Agreement, are fully aware of its legal effect, and have entered
into it freely based on their own judgment and not on any representations or
promises other than those contained in this Agreement. Executive expressly
acknowledges that his counsel is associated with a member of the Compensation
Committee of the Board, and Executive expressly represents that he will not
assert any claims against the Company, the Compensation Committee or the Board,
alleging in any manner that he was inadequately represented by counsel or that
his counsel had a conflict of interest that prevented such counsel from properly
advising or representing Executive in all matters associated with the
negotiation of this Agreement. Executive expressly waives, holds harmless and
covenants not to xxx the Company, the Compensation Committee and the Board from
any and all claims, demands, causes of action, judgments and damages arising out
of, relating to or alleged to have resulted from any real or perceived
inadequate representation or conflict of interest involving his counsel.
IN WITNESS WHEREOF, the parties have executed this Personal Services
Agreement as of the Effective Date.
VSTREAM, INC.
By: /s/ Illegible
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Title: CEO
-------------------------
EXECUTIVE
/s/ Xxxx X Xxxxxxxxx
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Xxxx X Xxxxxxxxx
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