EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), commencing as of the 24th
day of June, 1999, is entered into between MegaMedia Networks, Inc., a Delaware
Corporation (the "Company"), and Xxxx X. Xxxxxxxx, Xx., (the "Employee").
RECITAL
WHEREAS, the Company desires to employ the Employee and the Employee
desires to be employed by the Company upon the terms and subject to the
conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the Recital and of the mutual
promises set forth in this Agreement, the Company and the Employee agree as
follows:
AGREEMENT
1. EMPLOYMENT. The Company employs the Employee as the Chief Technology Officer
and he shall coordinate all of Employer's technical operations, new product
development and implementation of Internet related software and hardware,
management of third party vendor support, relations and alliances, and the
Employee hereby accepts such employment, upon the terms and subject to the
conditions set forth in this Agreement.
2. TERM. The term of this Agreement shall be two (2) years, commencing on June
24, 1999, and ending on June 23, 2001, subject to earlier termination pursuant
to the provisions of Section 9.
3. DUTIES. During the term of this Agreement, subject to the direction of the
Board of Directors of the Company, the Employee shall serve in the capacities
set forth in Section 1 hereof. The Employee shall devote his full business time
and energies to the business and affairs of the Company and shall use his best
efforts, skills and abilities to promote the interests of the Company and to
diligently and competently perform his duties.
4. COMPENSATION, STOCK OPTIONS AND BENEFITS:
A. Executive Compensation. Simultaneous with the execution of this
Agreement, Employee shall receive an annual salary of $105,000 (one hundred five
thousand dollars).
B. Upon execution of this Agreement, the Company shall place into
escrow 100,000 shares of fully paid, non-assessable, common stock of the Company
at a cost of $.01 par value per share for the benefit of Executive. Said shares
shall be held in escrow with Xxxxxxxxxxx Xxxxxxxx, Esq., a duly licensed
attorney who practices law in the Commonwealth of Pennsylvania. An Escrow
Agreement, establishing the terms and conditions of escrow and confirming the
receipt of the 100,000 shares in escrow shall be provided to Executive herewith
as Exhibit A. Provided that Executive has not voluntarily terminated his
employment (other than for "constructive discharge" as defined in paragraph 9C
and provided that Executive's employment has not been terminated "for cause" as
defined in paragraph 9D, prior to June 23, 2000, title to the 100,000 shares
shall vest in Executive on the earliest to occur of the following:
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i. June 23, 2000;
ii. Executive's death;
iii. Executive's permanent disability;
iv. Termination of the Executive by the Company without cause;
v. A "change in control" of the Company, which shall be
defined as (i) a sale, merger or other business combination which results in
transfer to a third party of an ownership interest of greater than 50% of the
Company or any successor entity to the Company prior to June 23, 2000., (ii) a
sale of all or substantially all of the Company's assets, prior to June 23,
2000.
Upon vesting and upon payment to the escrow agent of the stated
par value for the 100,000 shares, a Certificate or Certificates evidencing same
shall be promptly delivered to Executive.
C. Upon execution of this Agreement, the Company shall issue to
Executive one Stock Option Agreement as set forth in Exhibit B, attached here to
and incorporated herein by reference, providing Executive conditional rights to
purchase up to 100,000 shares of fully paid, non-assessable common stock of the
Company.
D. Promptly upon Executive's vesting of stock option rights as provided
in the Stock Option Agreements, the Company shall provide Executive with a
Notice of Vesting confirming such vesting of option rights. The Notice of
Vesting shall set forth the date of vesting, the number, exercise price and term
of the option rights that have vested in Executive. The stock that is subject to
the purchase rights and options referenced herein shall not be subject to any
dilution as to percentage of ownership, that differs from any dilution of
percentage of ownership that may be from time to time be appropriately approved
and undertaken by the Company and that is applicable to all issued and
outstanding stock of the Company. Executive shall also be entitled to
participate in the Employer's standard stock option and benefit programs as may
be generally available to Executives, including 401-K programs. All shares
acquired by Executive under these provisions will be subject to statutory
restrictions, registration and lockup agreements as Employer may reasonably
require of its Executives.
E. Benefits. During the term of this Agreement, the Employee shall be
entitled to participate in or benefit from, in accordance with the eligibility
and other provisions thereof such medical, insurance, pension, retirement, life
insurance, profit sharing and other fringe benefit plans or policies as the
Company may make available to, or have in effect for, its other senior Employee
employees generally from time to time. The Company retains the right to
terminate or alter any such plans or policies from time to time. Participation
of Employee's family in medical insurance plans may be elected at Employee's
expense.
F. Reimbursement of Business Expenses. During the term of this
Agreement, upon submission of appropriate supporting documentation, the Employee
shall be reimbursed by the Company for all reasonable business expenses actually
and necessarily incurred by the Employee on behalf of the Company in connection
with the performance of services under this Agreement.
G. Reimbursement of Other Expenses. During the term of this Agreement,
the Employee shall receive a monthly auto allowance of $400.00 per month and
shall participate in any other reimbursements (ie. cellular phone, pager, etc.)
offered to other senior Employees.
H. Vacation. During the term of this Agreement Employee shall be
eligible for fifteen (15) days paid vacation per year. No vacation days will be
cumulative and they will not carry over from year to year.
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I. Sick Leave. Employee will be eligible for 5 paid sick days per year.
Paid sick days can be used for any purpose during the Employee year. No sick
days will be cumulative and they will not carry over from year to year.
5. REPRESENTATION OF EMPLOYEE: The Employee represents and warrants that he is
not a party to, or bound by, any agreement or commitment, or subject to any
restriction, including but not limited to agreements related to previous
employment containing confidentiality or noncompete covenants, which in the
future may have a possibility of adversely affecting or interfering with the
business of the Company, the full performance by the Employee of his duties
under this Agreement or the exercise of his best efforts hereunder.
6. CONFIDENTIALITY:
A. Confidential Information. The Employee acknowledges that as a result
of his employment and engagement with the Company, the Employee will have
knowledge of and access to, all proprietary and confidential information of the
Company, including, without limitation, all "Confidential Information" (as
defined herein), and that such information, even though it may be contributed,
developed or acquired by the Employee, and whether or not the foregoing
information is actually novel or unique or is actually known by other,
constitutes valuable assets of the Company developed at great expense which are
the exclusive property of the Company or its affiliates. Accordingly, the
Employee shall not, at any time, either during or subsequent to the term of this
Agreement, use, reveal, report, publish, transfer or otherwise disclose to any
person, corporation or other entity (a "person"), any of the Confidential
Information without the prior written consent of the Company's Board of
Directors, except to responsible officers and employees of the Company and other
responsible persons who are in contractual or fiduciary relationship with the
Company and who have a need for such information for purposes in the best
interests of the Company, and except for such information which is or becomes
generally available to the public other than as a result of an unauthorized
disclosure by the Employee. The Employee acknowledges that the Company would not
enter into this Agreement without the covenants set forth in Sections 6, 7 and 8
of this Agreement and that such covenants are given as an integral part of and
incident to this Agreement. As used in this Agreement, "Confidential
Information" shall mean any and all studies, plans, reports, surveys, analysis,
sketches, drawings, specifications, notes, records, memoranda,
computer-generated data, computer programs, algorithms, or documents, and all
other nonpublic information relating to the business activities of the Company,
including, without limitation, all methods, processes, techniques, equipment,
research data, experiments, marketing and sales information, personnel data,
customer lists, pricing data, employee lists, supplier lists, merchandising
systems, financial data, trade secrets, and the like which presently or, in the
future, are in the possession of the Company. Said Confidential Information may
be in either human or computer readable form, including, but not limited to,
software, source code, hex code, or any other form.
B. Return of Confidential Information. Upon the termination of the
Employee's employment and engagement with the Company, the Employee shall
promptly deliver to the Company all manuals, letters, notes, notebooks, reports
and copies thereof and all other materials relating to the Company's business,
including without limitation any materials incorporating Confidential
Information, which are in the Employee's possession or control.
7. NONCOMPETITION: The Employee acknowledges that his services to be rendered
hereunder are of a special and unusual character and have a unique value to the
Company, the loss of which cannot be adequately compensated by damages in any
court of law. In view of the unique value to the Company of
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the services of the Employee, the Employee hereby covenants and agrees that so
long as he remains employed or engaged by the Company (whether under this
Agreement or any other written or oral agreement or arrangement) and for a
period of two (2) years after the termination or expiration of any such
employment or engagement for any reason whatsoever other than that set forth in
Sections 9(b) or 9(d) hereof, the Employee shall not directly or indirectly
engage in or have an active interest in, anywhere in the world, alone or in
association with others, as principal, officer, agent, employee, consultant,
independent contractor, director, partner or stockholder, or through the
investment of capital, lending of money or property, rendering of services or
otherwise, in any business competitive with the business engaged in by the
Company, the Employee hereby acknowledging that the company conducts business
and distributes its products, or contemplates conducting business and
distributing its product, on a worldwide basis; provided, however, that his
Section 9 shall not prevent the Employee from acquiring, solely as an investment
and through market purchases, up to ten percent (10%) of the securities of any
issuer that are registered under Section 12 (b) or 12 (g) of the Securities
Exchange Act of 1934, as amended, and that are listed or admitted for trading on
any United States national securities exchange or that are quoted on the
National Association of Securities Dealers Automated Quotations System. During
the same period, the Employee shall not, and shall not permit, cause or
authorize any of his employees, agents or others under his control to, directly
or indirectly, on behalf of himself or any other Person, to recruit or otherwise
solicit or induce any person who is an employee of; or otherwise engaged by, the
Company or any successor to the business of the Company or any affiliate of the
Company to terminate his or her employment or other relationship with the
Company or such successor or affiliate during the preceding two (2) years. The
Employee shall not at any time, directly or indirectly, use or purport to
authorize any Person to use any name, xxxx, logo, trade dress or other
identifying words or images which are the same as or similar to those used at
any time by the Company or any affiliate in connection with any product or
service, whether or not such use would be in a business competitive with that of
the Company. This Restrictive Covenant on the part of the Employee is given and
made by the Employee to induce MegaMedia to employ the Employee and to enter
into this Employment Agreement with the Employee, and the Employee hereby
acknowledges the sufficiency of the consideration for this Restrictive Covenant.
This Restrictive Covenant shall be construed as an agreement
independent of any other provision in this Agreement, and the existence of any
claim or cause of action of the Employee against MegaMedia, whether predicated
upon this Agreement or otherwise, shall not constitute a defense to the
enforcement by MegaMedia of this Restrictive Covenant. MegaMedia has fully
performed all obligations entitling it to this Restrictive Covenant, and this
Restrictive Covenant therefore is not executory or otherwise subject to
rejection under the Bankruptcy Code. This Restrictive Covenant is a reasonable
and necessary restraint of trade and does not violate the Xxxxxxx Antitrust Act,
the Florida Antitrust Act, or the common law; it is supported by valid business
interests, including the protection of MegaMedia trade secrets and confidential
business information and the protection of MegaMedia's relationships with its
customers and prospective customers, and the two (2) ear restriction is
essential to the full protection of those valid business interests. If any
portion of this Restrictive Covenant is held by a court of competent
jurisdiction to be unreasonable, arbitrary, or against public policy for any
reason, this Restrictive Covenant shall be considered divisible as to line of
business, time, and geographic area; if a court of competent jurisdiction should
determine the specified lines of business, the specified period, or the
specified geographic area to be unreasonable, arbitrary, or against public
policy for any reason, a narrower line of business, a lesser period, or a
smaller geographic area that is determined to be reasonable, non-arbitrary, and
not against public policy for any reason, may be enforced by MegaMedia against
the Employee.
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8. REMEDIES: MegaMedia and the Employee agree that, in the event of a breach by
the Employee of the Restrictive Covenants set forth in Paragraphs 6 and 7,
above, such a breach would irreparably injure MegaMedia and would leave
MegaMedia with no adequate remedy at law, and MegaMedia and the Employee further
agree that, if legal proceedings (including arbitration proceedings) should have
to be brought by MegaMedia against the Employee to enforce the Restrictive
Covenant, MegaMedia shall be entitled to all available civil remedies, including
without limitation:
A. Preliminary and permanent injunctive relief restraining the Employee
from violating, directly or indirectly, either as an individual on his or her
own account or as a partner, joint venturer, Employee, agent, salesman,
contractor, officer, director, or stockholder or otherwise, the restrictions of
Paragraph 6 and 7, above;
B. Attorneys' fees in the trial and appellate courts and in all
arbitration proceedings; and
C. Costs and expenses of investigation, litigation, and arbitration,
including expert witness fees, deposition costs (appearance fees and transcript
charges) , injunction bond premiums, travel and lodging expenses, arbitration
fees and charges, and all other reasonable costs and expenses.
Nothing in this Employment Agreement shall be construed as prohibiting
MegaMedia from pursuing any other legal or equitable remedies available to it
for breach or threatened breach of the Restrictive Covenants.
If the Employee violates the Restrictive Covenants, directly or
indirectly, either as an individual on his or her own account or as a partner,
joint venturer, Employee, agent, salesman, contractor, officer, director, or
stockholder or otherwise, any and all sales of services by the Employee (or the
partnership, joint venture, corporation, or other entity with which he or she is
associated) in competition with the services of MegaMedia shall be conclusively
presumed to have been made by MegaMedia but for the violation of the Restrictive
Covenant.
Should legal proceedings (including arbitration proceedings) have to be
brought by MegaMedia against the Employee to enforce the Restrictive Covenants,
the period of restriction shall be deemed to begin running on the date of entry
of an order granting MegaMedia preliminary injunctive relief and shall continue
uninterrupted for the next succeeding two (2) years; the Employee acknowledges
that such purposes and effect would be frustrated by measuring the period of
restriction from the date of termination of employment where the Employee failed
to honor the Restrictive Covenant until directed to do so by court order.
MegaMedia and the Employee agree that, if MegaMedia is granted preliminary
injunctive relief under this Agreement, an injunction bond of no more than
$5,000 shall be sufficient to indemnify the Employee for any costs or damages
that he or she might incur if the Court ultimately determines that the Employee
was wrongfully enjoined. If the Employee breaches any of the provisions of
Sections 6 or 7, in addition to its other rights and remedies, the Company shall
have the right to require the Employee to account for any pay over to the
Company all compensation, profits, money, accruals and other benefits derived or
received, directly or indirectly, by the Employee from the action constituting
such breach.
9. TERMINATION: This Agreement may be terminated prior to the expiration of the
term set forth in Section 2 upon the occurrence of any of the events set forth
in, and subject to the terms of; this Section 9.
A. Death. This Agreement will terminate immediately and automatically
upon the death of the Employee.
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B. Disability. This Agreement may be terminated at the Company's
option, immediately upon written notice to the Employee, if the Employee shall
suffer a permanent disability. For the purposes of this Agreement, the term
"permanent disability" shall mean the Employee's inability to perform his duties
under this Agreement for a period of 120 consecutive days or for an aggregate of
180 days, whether or not consecutive, in any twelve (12) month period, due to
illness, accident or any other physical or mental condition, as determined by
the Board of Directors of the Company.
C. Cause. This Agreement may be terminated at the Company's option,
immediately upon notice to the Employee, upon: (i) gross negligence or willful
misconduct of the Employee in connection with the performance of his duties
under this Agreement of Employee's willful refusal to perform any of his duties
or responsibilities required pursuant to this Agreement; or (ii) fraud, criminal
conduct (as evidenced by the conviction of the Employee for any criminal action)
or embezzlement by the Employee.
D. Without Cause. This Agreement may be terminated at the Company's
option without cause immediately upon notice to the Employee. In the event the
Company elects to terminate this Agreement without cause pursuant to this
subsection, the Company shall pay to Employee as wages in lieu of notice
$52,500.00 payable $1,050,00 per week over a period of 50 weeks commencing seven
(7) days after notice of termination. Simultaneous with the receipt of the first
installment of the wages in lieu of notice and as a condition to the receipt
thereof, the Employee shall deliver to the Company a general release in form
acceptable to the Company releasing the Company from any and all rights, claims,
demands, judgments, obligations, liabilities and damages, whether accrued or
unaccrued, asserted or unasserted, and whether known or unknown, relating to the
Company which ever existed, then existed, or may thereafter exist, by reason of
the termination of this Agreement without cause, except payment of the
$52,500.00 wages in lieu of notice.
E. Effect of Termination. In the event of any termination under this
Section 9, the Company shall have no further obligation under this Agreement to
make any payment to, or bestow any benefits on, the Employee from and after the
date of the termination other than payments or benefits accrued and due and
payable to him prior to the date of the termination and the stock purchase
rights due if any, and any vested stock option rights.
10. INVENTIONS, IDEAS, PROCESSES, AND DESIGNS: All inventions, ideas, processes
programs, software, and designs (including all improvements) (i) conceived
(whether or not actually conceived during regular business hours) or made by the
Employee during the course of his or her employment with MegaMedia and for a
period of six (6) months subsequent to the termination of such employment with
MegaMedia, and (ii) related to the business of MegaMedia, shall be disclosed in
writing promptly to MegaMedia and shall be the sole and exclusive property of
MegaMedia. The Employee shall cooperate with MegaMedia and its attorneys in the
preparation of patent and copyright applications for such developments and shall
promptly assign all such inventions, ideas, processes, and designs to MegaMedia.
The decision to file for patent or copyright protection or to maintain such
development as a trade secret shall be in the sole discretion of MegaMedia, and
the Employee shall be bound by such decision. The Employee shall provide, on the
back of this Employment Agreement, a complete list of all inventions, ideas,
processes, and designs, if any, patented or unpatented, copyrighted or
uncopyrighted, including a brief description, which he or she made or conceived
prior to his or her employment with MegaMedia and which therefore are excluded
from the scope of this Agreement.
11. CONSIDERATION. The Employee expressly acknowledges and agrees that the
execution by MegaMedia of this Employment Agreement constitutes full, adequate,
and sufficient consideration to the
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Employee from MegaMedia for the duties, obligations, and covenants of the
Employee under this Agreement, including, by way of illustration and not by way
of limitation, the agreements, covenants, and obligations of the Employee under
Paragraphs 6 and 7 of this Agreement. MegaMedia expressly acknowledges and
agrees similarly with respect to the consideration received by it from the
Employee under this Agreement.
12. INDEBTEDNESS. If, during the course of the Employee's employment under this
Employment Agreement, the Employee becomes indebted to MegaMedia for any reason,
MegaMedia may, if it so elects, set off any sum due to MegaMedia from the
Employee and collect from the Employee any remaining balance.
13. TRAINING EXPENSES. MegaMedia shall pay for all reasonable training expenses
incurred by the Employee while he or she is employed under this Employment
Agreement.
14. CONSENT TO PERSONAL JURISDICTION AND VENUE; WAIVER OF JURY TRIAL. The
Employee hereby consents to personal jurisdiction and venue, for any action
brought by MegaMedia arising out of a breach or threatened breach of this
Employment Agreement, exclusively in the United States District Court for the
Middle District of Florida, Orlando Division, or in the circuit court in and for
Orange County, Florida; the Employee hereby agrees that any action brought by
him or her, alone or in combination with others, against MegaMedia, whether
arising out of this Agreement or otherwise, shall be brought exclusively in the
United States District Court for the Middle District of Florida, Orlando
Division, or in the Circuit Court in and for Hillsborough County, Florida. The
Employee hereby agrees that any controversy which may arise under this Agreement
would involve complicated and difficult factual and legal issues. Therefore, if
a court of law determines for any reason that the arbitration clause of
Paragraph 15 of this Agreement is unenforceable, then any action brought by
MegaMedia against the Employee or brought by the Employee, alone or in
combination with others, against MegaMedia, whether arising out of this
Agreement or otherwise, shall be determined by a Judge sitting without a jury.
15. ARBITRATION. All controversies, claims, disputes, and matters in question
arising out of, or related to, this Employment Agreement or the breach of this
Agreement, or the relations between the signatories to this Agreement, shall be
decided by arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. The signatories agree that the arbitration
shall take place exclusively in Orlando, Florida, and shall be governed by the
substantive law of the state of Florida. Any award rendered by the arbitrator
shall be final, and final judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof, including a federal
district court, pursuant to the Federal Arbitration Act. The arbitrator may
grant MegaMedia injunctive relief, including mandatory injunctive relief, to
protect the rights of MegaMedia, but the arbitrator shall not be limited to such
relief. This arbitration provision shall not preclude MegaMedia from seeking
temporary or preliminary injunctive relief in a court of law to protect its
rights, nor shall the filing of such an action constitute any waiver by
MegaMedia of its right to arbitrate. In connection with the arbitration of any
dispute between the signatories to this Agreement, each signatory may utilize
all methods of discovery authorized by the Federal and Florida Rules of Civil
Procedure.
16. SERVICE OF PROCESS-MEGAMEDIA. If the Employee institutes legal proceedings
(including arbitration proceedings) against MegaMedia, the signatories to this
Employment Agreement agree that service of process by registered and certified
U.S. mail of the complaint and summons to the national headquarters of
MegaMedia, currently located at 00 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, is
reasonably calculated to apprise MegaMedia of any legal proceedings (including
arbitration proceedings) instituted against it by the Employee. The
above-described method for service of process shall not
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constitute the consent by MegaMedia to the exercise of personal jurisdiction by
any court except the United States District Court for the Middle District of
Florida, Orlando Division or the Circuit Court for Hillsborough County, Florida,
in connection with any controversy or dispute between the signatories to this
Agreement.
17. SERVICE OF PROCESS-EMPLOYEE. If MegaMedia institutes legal proceedings
(including arbitration proceedings) against the Employee, the parties agree
that, except as provided below, MegaMedia shall serve process by process server
upon the Employee at his or her last known residence address located in the
United States. The Employee shall notify MegaMedia in writing of any change in
his or her residence address within ten (10) calendar days of the change. If the
Employee changes his or her U.S. residence address and fails to notify MegaMedia
in writing within ten (10) calendar days of the change, the signatories agree
that the following specified method of service of process is reasonably
calculated to reach the Employee and to apprise the Employee of the legal
proceedings instituted by MegaMedia:
MegaMedia shall (i) serve copies of the summons and complaint by
certified and registered U.S. Mail to the Employee's last known residence
located in the United States and (ii) place a public notice in a newspaper of
general circulation in the geographic area of the Employee's last known
residence address for a period of two consecutive weeks following commencement
(i.e., filing) of the proceedings. The Employee expressly acknowledges that the
above-described method for service of process is (i) reasonably calculated to
apprise him or her of any legal proceedings (including arbitration proceedings)
instituted against him by MegaMedia and (ii) sufficient for the court issuing
the summons or the American Arbitration Association to exercise personal
jurisdiction over him or her.
18. ACKNOWLEDGMENTS. The Employee hereby acknowledges that he or she has been
provided with a copy of this Employment Agreement for review prior to signing
it, that he or she has been given the opportunity to have this Agreement
reviewed by his or her own attorney prior to signing it, that he or she
understands the purposes and effects of this Agreement, and that he or she has
been given a signed copy of this Agreement for his or her own records. The
parties hereto acknowledge that this Agreement and all matters contemplated
herein, have been negotiated between both of the parties hereto and their
respective legal counsel and that both parties have participated in the drafting
and preparation of this Agreement from the commencement of negotiations at all
times through the execution hereof.
19. WAIVER. The waiver by MegaMedia of a breach or threatened breach of this
Employment Agreement by the Employee shall not be construed as a waiver of any
subsequent breach by the Employee. The refusal or failure of MegaMedia to
enforce the Restrictive Covenant of Paragraph 7 or the prohibitions of Paragraph
6 of this Agreement (or any similar agreement) against any other Employee,
agent, or independent contractor, for any reason, shall not constitute a defense
to the enforcement by MegaMedia of the Restrictive Covenant of Paragraph 7 or
the prohibitions of Paragraph 6, nor shall it give rise to any claim or cause of
action by such Employee, agent, or independent contractor or consultant against
MegaMedia.
20. INDEMNIFICATION. The Company shall indemnify Executive to the fullest extent
permitted by applicable law against damages and expenses (including fees and
disbursements of counsel) in connection with his status or arising out of the
ordinary and proper conduct of his duties as an employee or officer of the
Company.
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21. MISCELLANEOUS.
A. Entire Agreement. This Employment Agreement, together with Exhibits
A and B specifically supersedes and replaces all prior Employment Agreements
between the parties and constitutes the entire agreement between its signatories
pertaining to the subject matters of the Agreement, and it supersedes all
negotiations, preliminary agreements, and all prior and contemporaneous
discussions and understandings of the signatories in connection with the subject
matters of the Agreement. Except as otherwise herein provided, no covenant,
representation, or condition not expressed in this Agreement, or in an amendment
made and executed in accordance with the provisions of the subparagraph (b) of
this paragraph, shall be binding upon the signatories or shall affect or be
effective to interpret, change, or restrict the provisions of this Agreement.
B. Amendments. No change, modification, or termination of any of the
terms, provisions, or conditions of this Employment Agreement shall be effective
unless made in writing and signed or initialed by all signatories to this
Agreement.
C. Governing Law. This Employment Agreement shall be governed and
construed in accordance with the statutory and decisional law of the State of
Florida governing contracts to be performed in their entirety in Florida.
D. Separability. If any paragraph, subparagraph, or provision of this
Employment Agreement, or the application of such paragraph, subparagraph, or
provision, is held invalid by a court of competent jurisdiction, the remainder
of the Agreement, and the application of such paragraph, subparagraph, or
provision to persons or circumstances other than those with respect to which it
is held invalid, shall not be affected.
E. Headings and Captions. The titles and captions of paragraphs and
subparagraphs contained in this Employment Agreement are provided for
convenience of reference only, and they shall not be considered a part of this
Agreement for purposes of interpreting or applying this Agreement; such titles
or captions are not intended to define, limit, extend, explain, or describe the
scope or extent of this Agreement or any of its terms, provisions,
representations, warranties, or conditions in any manner or way whatsoever.
F. Continuance of Agreement. The rights, responsibilities, and duties
of the signatories to this Employment Agreement, and the covenants and
agreements contained in this Agreement, shall continue to bind the signatories,
shall continue in full force and effect until each and every obligation of the
signatories pursuant to this Agreement (and any document or agreement
incorporated hereby by reference) shall have been fully Performed, and shall be
binding upon the successors and assigns of the signatories.
G. Successors and Assigns. Neither party shall have the right to assign
this personal Agreement, or assign any rights or delegate any obligations
hereunder, without the consent of the other party; provided, however, that upon
the sale of all or substantially all of the assets, business and goodwill of the
Company to another company, this Agreement shall inure to the benefit of; and be
binding upon, both Employee and the company purchasing such assets, business and
goodwill, or surviving such merger or consolidation, as the case may be, in the
same manner and to the same extent as though such other company were the
Company. Subject to the foregoing, this Agreement shall inure to the benefit of;
and be binding upon, the parties hereto and their legal representatives, heirs,
successors and assigns.
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H. Additional Acts. The Employee and the Company each agrees to
execute, acknowledge and deliver and file, or cause to be executed, acknowledged
and delivered and filed, any and all further instruments, agreements or
documents as may be necessary or expedient in order to consummate the
transactions provided for in this Agreement and do any and all further acts and
things as may be necessary or expedient in order to carry out the purposes and
intent of this Agreement.
I. Notices. Any notice or other communication under this Agreement,
other than as provided above, shall be in writing and shall be delivered
personally or sent by certified mail, return receipt requested, postage prepaid,
or sent by facsimile or prepaid overnight courier to the parties at the
addresses set for the below (or at such other addresses as shall be specified by
the parties by like notice). Such notices, demands, claims and other
communications shall be deemed given when actually received or (a) in the case
of delivery by overnight service with guaranteed next day delivery, the next day
or the day designated for delivery, (b) in the case of facsimile, the date upon
which the transmitting party received confirmation of receipt by facsimile,
telephone or otherwise.
To the Company: MegaMedia Networks, Inc.
00 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Law Department
To the Employee:
J. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which, together, will constitute
one and the same agreement. Any facsimile version of a manually executed
signature page delivered by one party to the other shall be deemed manually
executed and delivered original.
/s/ /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------ ----------------------------------------
Witness MegaMedia Networks, Inc. Date
By Xxxxxxx X. Xxxxxx, Xx., President
/s/ /s/ Xxxx X. Xxxxxxxx, Xx.
------------------------------ ----------------------------------------
Witness Employee - Xxxx X. Xxxxxxxx, Xx. Date
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