Exhibit 10.27
EXECUTIVE AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into as of this 17th day of December, 1999, by and between GLOBAL MEDIA
CORP., a Nevada corporation (the "Company"), and Xxxx Xxxxxxxxxx (the
"Executive").
RECITALS
The Company desires to retain the services of the Executive as its
President on the terms and subject to the conditions set forth in this
Agreement, and the Executive desires to make his services available to the
Company on the terms and subject to the conditions set forth in this Agreement.
AGREEMENT
1. EMPLOYMENT.
1.1 GENERAL. The Company hereby agrees to employ the Executive as
President during the Term of this Agreement on the terms and subject to the
conditions contained in this Agreement, and the Executive hereby agrees to
accept such employment on the terms and subject to the conditions contained in
this Agreement. On the Commencement Date (as hereinafter defined), the Board of
Directors shall resolve to increase the size of the Board of Directors by one
director and appoint Executive to fill the resulting vacancy. During the Term
(as hereinafter defined), so long as Executive is employed by the Company as its
President, the Company agrees to nominate Executive for election to the Board of
Directors at meetings of the Company's shareholders called for the election of
directors. Executive agrees that if his employment as President is terminated
for any reason whatsoever, he shall immediately resign from the Board of
Directors. Payment of any Severance Benefits to which Executive may otherwise be
entitled under Section 5.2 may be conditioned upon Executive's tender of such
resignation.
1.2 DUTIES OF EXECUTIVE. During the Term of this Agreement, the
Executive shall diligently perform all duties and responsibilities as may be
assigned to him by the Chairman of the Board and, to the extent not inconsistent
with such duties and responsibilities as are assigned by the Chairman, those
assigned by the CEO. The Executive shall devote his full business time and
attention to the business and affairs of the Company as necessary to perform his
duties and responsibilities hereunder, render such services to the best of his
ability, and use his best efforts to promote the interests of the Company.
Further, during the Term, Executive will not, without Company's prior written
consent, directly or indirectly engage in any employment, consulting, or other
activity that would interfere or conflict with the performance of Executive's
duties or obligations to Company or which would directly or indirectly compete
with Company. Executive acknowledges that at least during the first year after
the Commencement Date, he shall be required to spend a reasonable portion of his
working time in the Company's Vancouver, B.C. headquarters to the extent not
otherwise travelling on Company business.
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2. COMMENCEMENT. Employment shall commence January 17, 2000 or such
later date as the parties may mutually agree (not to exceed 30 days after
January 17, 2000) in order to enable Executive to satisfy obligations to his
current employer ("Commencement Date").
3. TERM. Subject to Paragraph 4, below, the term of employment (the
"Term") shall be for a period of two (2) years from the Commencement Date. ----
4. COMPENSATION.
4.1 SALARY. During the first year of the Term, Executive shall receive
an annual salary of Three Hundred Thousand United States Dollars (US$300,000)
("Base Compensation") payable after the Commencement Date in installments
consistent with the Company's normal payroll schedule on or about either the
first or fifteenth day of the month, subject to all withholding as is legally
required or directed by Executive. Executive's salary for the second year of the
Term shall be reviewed by the Board of Directors of the Company and shall be no
less than Base Compensation for the first year.
4.2 MILESTONE BONUS. Executive shall be eligible for a bonus of up to
Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars (US$100,000) per year, to be paid
based upon achievement of goals and milestones, the terms and achievement of
which shall be determined at the discretion of the Board of Directors.
4.3 STOCK OPTIONS. In connection with the commencement of Executive's
employment, the Company shall grant Executive an option to purchase 350,000
shares of Company's Common Stock at the current market value of the Common Stock
as of the Commencement Date. The stock options shall vest at 20% on the
Commencement Date, with an additional 20% vesting at the end of each full
quarter of continuous service during the first year of the Term; provided,
however, that if Executive's employment is terminated without Cause prior to the
end of the first year of the Term, vesting of any unvested stock options shall
be immediately and fully accelerated. The stock options shall be granted under
the Company's 1999 Stock Option Plan and the Company's standard form option
agreement (consistent with the terms described above), to be entered into as of
the Commencement Date. Executive acknowledges that the grant of such options,
Executive's exercise of such options, and the disposition of shares issued on
exercise shall be subject to all requirements under the Securities Act, the
Securities Exchange Act of 1934 and the rules and regulations thereunder.
4.4 RESTRICTED STOCK SALES.
(A) INITIAL STOCK SALE. On the Commencement Date, Xxxxxxx Xxxxxxxx,
the principal shareholder of the Company ("Metcalfe"), will sell to Executive
500,000 shares of Company Common Stock owned by Metcalfe (the "Initial Stock")
at a price per share of $0.01 and, on that date, the Executive will pay to
Metcalfe the purchase price for the Initial Stock by cash or certified check.
Executive acknowledges that (i) he will acquire the Initial Stock for investment
only, not with a view to the distribution or other disposition thereof in
violation of the Securities Act of 1933, as amended (the "Securities Act"), (ii)
the Initial Stock shall be "restricted securities" within the meaning of Rule
144 under the Securities Act and the stock certificate evidencing the Initial
Stock will bear customary restricted securities legends, (iii) Executive's
holding period with respect to those shares under Rule 144(d) shall commence on
the Commencement Date, (iv) such shares may not be sold or otherwise transferred
(other than a
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transfer without consideration pursuant to Executive's will or the laws of
intestacy) for a period of one (1) year after the Commencement Date (the
"Initial Lockup Period"), (v) the Company is under no obligation to register
such shares for public resale under the Securities Act at any time, (vi) the
grant of such shares, Executive's holding of such shares and any disposition of
such shares shall otherwise be subject to all requirements under the Securities
Act, the Securities Exchange Act of 1934 and the rules and regulations
thereunder. The Initial Stock shall be held in escrow by the Company until the
end of the Initial Lockup Period at which time, subject to the following
sentence, such shares shall be released to Executive. In the event that
Executive's employment is terminated at any time prior to the end of the Initial
Lockup Period for Cause (as defined in Section 5.1) or due to Executive's
Voluntary Termination (as defined in Section 5.1), such shares shall be subject
to a right of repurchase, exercisable upon written notice to Executive within
sixty (60) days following the effective date of such termination, and payment by
cash or certified check to Executive of the repurchase price of $0.01 per share.
The Initial Stock shall be sold pursuant to a mutually acceptable written
agreement between Executive, Metcalfe and the Company, consistent with the
foregoing terms, to be entered into on the Commencement Date (the "Restricted
Stock Purchase Agreement").
(B) ADDITIONAL STOCK SALE. On the first anniversary of the
Commencement Date, Metcalfe will sell to Executive an additional 500,000 shares
of Common Stock owned by Metcalfe (the "Additional Stock") at a price per share
of $0.01 and, on that date, the Executive will pay to Metcalfe the purchase
price for the Initial Stock by cash or certified check; provided, however, that
if Executive's employment has been terminated for any reason prior to such date,
Executive shall not be entitled to, and Metcalfe shall not have any obligation
with respect to the sale of, the Additional Stock. Executive acknowledges that
(i) he will acquire the Additional Stock shares for investment only, not with a
view to the distribution or other disposition thereof in violation of the
Securities Act of 1933, as amended (the "Securities Act"), (iii) the Additional
Stock will be "restricted securities" within the meaning of Rule 144 under the
Securities Act and the stock certificate evidencing the Additional Stock will
bear customary restricted securities legends, (iv) Executive's holding period
with respect to those shares under Rule 144(d) shall commence on the effective
date of the sale of the Additional Stock by Metcalfe to Xxxxxxxxxx, (v) such
shares may not be sold or otherwise transferred (other than a transfer without
consideration pursuant to Executive's will or the laws of intestacy) for a
period of one (1) year after the effective date of the of the sale of the
Additional Stock (the "Extended Lockup Period"), (vi) the Company is under no
obligation to register such shares for public resale under the Securities Act at
any time, (vii) the grant of such shares, Executive's holding of such shares and
any disposition of such shares shall otherwise be subject to all requirements
under the Securities Act, the Securities Exchange Act of 1934 and the rules and
regulations thereunder. The Additional Stock shall be held in escrow by the
Company until the end of the Extended Lockup Period at which time, subject to
the following sentence, such shares shall be released to Executive. In the event
that Executive's employment is terminated at any time prior to the end of the
Extended Lockup Period for Cause (as defined in Section 5.1) or due to
Executive's Voluntary Termination, such shares shall be subject to a right of
repurchase, exercisable upon written notice to Executive within sixty (60) days
following the effective date of such termination, and payment to Executive of
the repurchase price of $0.01 per share. The sale of the Additional Stock shall
be subject to the terms of the Restricted Stock Purchase Agreement referred to
in Section 4.4(a) above.
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4.5 VACATION. Executive shall be entitled to fifteen (15) business
days paid vacation plus government holidays during the Initial Period and, if
applicable, the Extended Period; provided that Executive agrees that he will not
be entitled to more than ten (10) consecutive days vacation during any one year.
Such vacation shall be taken at a time mutually convenient to Company and
Executive. During each year of continuous service under this Agreement, up to
five (5) days of unused vacation time may be accumulated and carried over to the
succeeding year. In the event this Agreement is terminated by either Company or
Executive, except for "Cause," Executive shall be paid for any unused vacation
time from the current year (on a pro rata basis) plus any unused approved
carry-over vacation time from the prior year.
4.6 BENEFIT PLANS. During the Term of this Agreement, the Executive
shall be entitled to participate in all perquisites and benefit plans adopted
for the general benefit of the Company's executives, such as pension plans,
profit sharing plans, medical plans, group or other insurance plans and
benefits, if any, to the extent that the Executive is and remains eligible to
participate therein and subject to the eligibility provisions of such plans in
effect from time to time. In lieu of medical and dental benefits under Company
plans, the Company may reimburse Executive for the cost of continuing coverage
under Executive's prior employer for the maximum period allowable under COBRA.
4.7 LIVING AND OTHER EXPENSES. For the first six months following
the Commencement Date, Executive shall, at the Company's option, (i) be
reimbursed for the reasonable rental cost of an apartment in Vancouver, British
Columbia, or (ii) use of a corporate apartment in Vancouver, British Columbia.
All other living expenses shall be Executive's responsibility. Executive shall
be entitled to reimbursement of reasonable business expenses in accordance with
Company policies in effect from time to time.
5. TERMINATION OF EMPLOYMENT AND SEVERANCE BENEFITS.
5.1 TERMINATION OF EMPLOYMENT. Executive's employment may be
terminated upon the occurrence of any of the following events, and subject to
the following conditions:
A. TERMINATION FOR CAUSE. The Company may terminate Executive
for Cause (as hereafter defined) which shall be effective
immediately after the Company provides to the Executive written
notice of such termination. For purposes of this Agreement, "Cause"
means dishonesty, gross neglect of duties, conflict of interest,
professional negligence, fraud or misrepresentation, refusal or
repeated failure to carry out reasonable directives of the Chairman
and CEO, conviction of or pleading guilty or no contest to a felony
or crime involving moral turpitude, any material breach of this
Agreement, or any other act or failure to act that, in the
reasonable good faith business judgment of the Board of Directors,
substantially impairs Company's business or reputation.
B. TERMINATION WITHOUT CAUSE. The Company may terminate
Executive's employment without cause, which determination may be
made by the Company at any time at the Company's sole discretion,
for any or no reason. Termination without cause shall be
immediately upon written notice to the Executive of such
termination
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C. VOLUNTARY TERMINATION. Executive may terminate his
employment with the Company at any time for any reason ("Voluntary
Termination"). The effective date shall be at least ninety (90)
days after written notice to the Company from Executive.
D. DEATH. Executive's employment will terminate immediately
upon Executive's death.
E. DISABILITY. Executive's employment will terminate
immediately upon Executive's Disability (as defined in paragraph
5.3 below).
5.2 COMPENSATION AND SEVERANCE BENEFITS.
A. TERMINATION UNDER ANY CIRCUMSTANCE. Upon termination of
Executive's employment for any reason, Executive shall be paid at the next
regularly scheduled pay period(s) for Base Compensation, Bonus Compensation, if
any, which has been declared by the Board of Directors but is unpaid as of the
date of termination, and vacation benefits to which Executive is entitled under
Section 4.5 above through the effective date of Executive's termination of
employment. Except as specifically contemplated in Section 4.3, vesting of any
unvested stock options held by Executive as of the date of Executive's
termination of employment shall terminate as of the effective date of
Executive's termination of employment. Executive shall have ninety (90) days
from the effective date of termination to exercise any options that are vested
as of the effective date of Executive's termination of employment (including any
options for which vesting has been accelerated pursuant to Section 4.3), after
which the options shall terminate.
X. XXXXXXXXX BENEFITS UNDER CERTAIN CIRCUMSTANCES. Executive
shall be entitled to receive Severance Benefits (as hereinafter defined) upon
termination of employment only to the extent specifically set forth below.
Severance Benefits will consist of Base Compensation for the Severance Period
(as defined below), and, except in the case of termination under Section 5.1(d),
Company health insurance (or separate insurance providing comparable coverage)
and other employee benefits, if any, in which Executive is participating at the
time of termination of employment. Severance Benefits shall immediately cease
upon Executive's acceptance of other employment.
I. VOLUNTARY TERMINATION. If Executive's employment
terminates by Voluntary Termination with proper notice, then
Executive shall be entitled to no Severance Benefits whatsoever.
II. INVOLUNTARY TERMINATION. If Executive's employment is
terminated under Section 5.1(b) or (d) above (an "Involuntary
Termination"), Executive (or his estate) will be entitled to
receive Severance Benefits equal to the longer of (i) the remaining
Term or (ii) ninety (90) days. Such payments shall be made ratably
over the Severance Period according to the Company's standard
payroll schedule.
III. TERMINATION FOR CAUSE. If Executive's employment is
terminated for "Cause" Executive shall receive no severance
benefits.
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5.3 DEFINITION OF DISABILITY. "Disability" shall mean that
Executive has been unable to perform his duties hereunder as a
result of his incapacity due to physical or mental illness, and
such inability, which continues for at least 60 consecutive
calendar days or 90 nonconsecutive days during any consecutive 12
month period after its commencement, and which is determined to be
total and permanent by a physician selected by Company.
6. AGREEMENT NOT TO COMPETE.
6.1 As used in this Agreement, "Competing Business" shall
mean any business or enterprise that is engaged in (i) streaming media services
or the sale or licensing of technologies related thereto, or (ii) consumer
e-commerce or the sale or licensing of technologies related thereto.
6.2 The Executive agrees that Company is engaged in a highly
competitive business in an international marketplace, and that during the Term
of this Agreement and for a period of one year following the termination or
expiration of his employment for any reason whatsoever, he will not, without the
prior written consent of the Company, either directly or indirectly, on his own
behalf or in the service of or on behalf of others as a shareholder, director,
officer, trustee, consultant, independent contractor, employee or agent, engage
in, or be employed by, or solicit business for, or provide services to, any
Competing Business, in North America.
7. AGREEMENT NOT TO ESTRANGE CUSTOMERS. The Executive agrees that,
during the Term of this Agreement and for two years following the termination or
expiration of his employment for any reason whatsoever, he will not, without the
prior written consent of the Company, either directly or indirectly attempt to
or induce any actual or prospective client or customer of the Company to cease
to do business or to reduce or limit its business with Company or any of its
subsidiaries or affiliates. A prospective customer is one with whom Company or
its subsidiaries or affiliates have had discussion or contact during the Term of
this Agreement, or with whom Executive has been notified that the Company or its
subsidiaries or affiliates are contemplating doing business.
8. AGREEMENT NOT TO ESTRANGE PERSONNEL. The Executive agrees that
during the Term of this Agreement and for two years following the termination or
expiration of his employment for any reason whatsoever, he will not, either
directly or indirectly, on his own behalf or in the service or on behalf of
others, solicit, divert, or attempt to solicit, divert or in any way induce any
person employed by the Company or any subsidiary or affiliate to discontinue or
reduce employment or association therewith, whether or not such person is a full
time employee, consultant, contractor, or temporary employee of the Company or
any subsidiary or affiliate and whether or not such employment is for a
determined period or is at will.
9. AGREEMENT NOT TO ESTRANGE SUPPLIERS AND VENDORS. The Executive
agrees that during the Term of the Agreement and for two years following the
termination or expiration of his employment for any reason whatsoever, he will
not, either directly or indirectly, on his own behalf or in the service or on
behalf of others, solicit, divert, or attempt to induce any supplier, vendor or
other provider to discontinue or limit its association with the Company or any
subsidiary or affiliate thereof.
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10. OWNERSHIP AND NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL
INFORMATION.
10.1 Company and Executive contemplate, that during the period of
this Agreement, Executive will be assisting in the development of new business
strategies, products, and services, and will gain access to confidential and
proprietary information of the Company. As used in this Agreement, "Confidential
Information" includes all material and information that is considered
confidential or a trade secret of Company under RCW 19.108, the value of which
arises from the fact that it is not generally known to others who might be able
to benefit from it, and also includes but is not limited to customer sales and
marketing information, customer account records, proprietary receipts and/or
processing techniques, information regarding vendors and products, training and
operations memoranda and similar information, personnel records, pricing
information, financial information and information concerning or relating to the
business, accounts, customers, employees and affairs of the Company, or any
subsidiary or affiliate thereof, created or obtained by or furnished, disclosed
or disseminated to the Executive, or obtained, assembled or compiled by the
Executive or under his supervision during the course of his employment by the
Company, and all physical embodiments of the foregoing, all of which are hereby
agreed to be the property of and confidential to the Company.
10.2 The Executive acknowledges and agrees that all Confidential
Information, and all physical embodiments thereof, are confidential to and shall
be and remain the sole and exclusive property of the Company. Upon request by
the Company, and in any event upon termination of the Executive's employment
with the Company, as a prior condition to the Executive's receipt of any final
salary or benefit payments hereunder, the Executive shall deliver to the Company
all property belonging to the Company or any of its subsidiaries or affiliates,
including, without limitation, all Confidential Information (and all embodiments
thereof), then in his custody, control or possession, but any forfeiture of such
salary or benefit shall not be considered a satisfaction or a release of or
liquidated damages for any claim(s) for damages against the Executive which may
accrue to the Company, as a result of any breach of this Section 9 by the
Executive.
10.3 The Executive agrees that he will not, either during the Term
of this Agreement or at any time thereafter, without the prior written consent
of the Company, use, disclose or make available any Confidential Information to
any person or entity, nor shall he use, disclose, make available or cause to be
used, disclosed or made available, or permit or allow, either on his own behalf
or on behalf of others, any use or disclosure of such Confidential Information
other than in the proper performance of the Executive's duties hereunder.
11. INVENTIONS AND WORK PRODUCT. The Executive shall disclose promptly
to the Company any and all conceptions and ideas for inventions, improvements,
valuable discoveries, marketing or other plans, customer lists, or ideas
(including but not limited to manuals, software, training programs, databases,
techniques, improvements, and other developments), and all tangible
manifestations thereof, whether patentable or not that are conceived or made by
the Executive, solely or jointly with another, during the Term of this Agreement
and that are related to the business or activities of the Company regardless of
whether or not such ideas, inventions, or improvements qualify as "works for
hire." The Executive hereby assigns and agrees to assign all his interests
therein to the Company or its nominee, excepting only to the extent that the
invention is one for which no equipment, supplies, facility or trade secret
information of the Company was used and which was developed entirely on the
Executive's own time, unless
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(a) the invention relates (i) directly to the business of the Company, or (ii)
to the Executive's actual or demonstrably anticipated research or development,
or (b) the invention results from any work performed by the Executive for the
Company. Whenever requested to do so by the Company, the Executive shall execute
any and all applications, assignments or other instruments that the Company
shall deem necessary to apply for and obtain Letters Patent of the United States
or any foreign country or to otherwise protect the Company's interest therein.
12. REASONABLENESS OF RESTRICTIONS. In the event that any provision
relating to time period or geographic area of any restriction set forth in
Sections 6, 7, 8 or 9 in this Agreement shall be declared by a court of
competent jurisdiction to exceed the maximum time period or area of restriction
that the court deems reasonable and enforceable, the time period or area of
restriction which the court finds to be reasonable and enforceable shall be
deemed to become, and thereafter shall be, the maximum time period or geographic
area of such restriction as to Executive.
13. ENFORCEABILITY. Any provision of Sections 5, 6, 7, 8 and 9 which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, but shall be enforced to the
maximum extent permitted by law, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
14. REMEDIES. Executive recognizes and agrees that the obligations in
Sections 6, 7, 8, 9, 10, and 11 are the essence of this Agreement, and are
reasonable and necessary to protect the legitimate business interest and
goodwill of Company. Executive acknowledges that the restrictions placed upon
him by these provisions do not unreasonably interfere with his ability to earn a
living during the restricted period.
A. INJUNCTION. It is recognized and hereby acknowledged and
admitted by Executive that a breach by the Executive of any of the
covenants contained in Sections 6, 7, 8, 9, 10 or 11 of this
Agreement will, cause immediate and irreparable harm and damage to
the Company and that Company's ability to seek monetary damages,
including liquidated damages, is not sufficient to prevent such
irreparable harm. As a result, the Executive recognizes and
acknowledges that the Company shall be entitled to an injunction
from any court of competent jurisdiction enjoining and restraining
any violation of any or all of the covenants contained in Sections
6, 7, 8, 9, 10 or 11 of this Agreement by the Executive or any of
his affiliates, associates, partners, or agents, either directly or
indirectly, and that such right to injunction shall be cumulative
and in addition to whatever other remedies the Company may possess.
B. LIQUIDATED DAMAGES. In the event that Executive violates
paragraph 6 of this Agreement, Executive agrees that, in addition
to Company's right to injunctive relief, Executive will pay
liquidated damages if any Company clients or customers begin doing
business with any person, business, or other entity to whom
Executive has provided services in violation of this Agreement. The
parties agree that Executive will pay to Company thirty-five
percent (35%) of the gross of any and all fees paid to or incurred
by any such customers or clients
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to any such person, business, or entity during the thirty-six (36)
months after Executive leaves the employ of Company. In the event
that Executive violates paragraph 8 of this Agreement, Executive
agrees that, in addition to Company's right to injunctive relief,
Executive will pay liquidated damages equal to one-half (1/2) the
annual compensation payable any employee, consultant, or contractor
who leaves or, on a pro rata basis reduces, his or her employment
with Company due to Executive's conduct. The parties agree that
these amounts are not intended to be a penalty, but rather
represent a reasonable forecast of the actual damages that would be
suffered by Company, which would otherwise be incapable or very
difficult to ascertain.
15. SECTION HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered by hand or three (3) days after sent by registered or certified United
States mail, return receipt requested, postage prepaid, or the next business day
following dispatch by a reputable overnight courier service, addressed as
follows,
(i) If to the Executive:
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(ii) If to the Company
Global Media Corp.
Attn: Chief Financial Officer and Chairman of the
Board 000 Xxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0 Xxxxxx
or to such other addresses as either party hereto may from time to time give
notice of to the other party hereto in the aforesaid manner.
17. ASSIGNMENT. Executive agrees that his obligations under this
Agreement are in the nature of requiring his personal service, and that he will
not assign, sell, transfer, or delegate any rights or obligations under this
Agreement. Any such purported assignment, transfer, or delegation shall be null
and void. The Company shall have the right to assign its rights and obligations
under this Agreement to any or all of its qualifying subsidiary or affiliated
companies, or the majority owner of Company or any of its affiliated or
subsidiary companies.
18. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the parties hereto
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and their respective heirs, executors, personal representative, legal
representative, successors and assigns, any rights or remedies under or by
reason of this Agreement.
19. BINDING EFFECT. This Agreement shall be for the benefit of and
binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns.
20. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of this Agreement
or any part thereof, all of which are inserted conditionally on their being
valid in law, and, in the event that any one or more of the words, phrases,
sentences, clauses, sections or subsections contained in this Agreement or any
put thereof shall be declared invalid, this Agreement shall be construed as if
such invalid word or words, phrase or phrases, sentence or sentences, clause or
clauses, section or sections or subsection or subsections had not been inserted.
If such invalidity is caused by length of time or size of area or both, the
otherwise invalid provision will be considered to be reduced to a period or area
which would cure such invalidity.
21. GOVERNING LAW. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of Washington,
excluding the choice of law rules thereof. The Company and the Executive each
hereby irrevocably submit to the jurisdiction of the state or federal courts
located in Washington in connection with any suit, action or other proceeding
arising out of or relating to this Agreement and hereby agree not to assert, by
way of motion, as a defense, or otherwise in any such suit, action or proceeding
that the suit, action or proceeding is brought in an inconvenient forum. that
the venue of the suit, action or proceeding is improper or that this Agreement
or the subject matter hereof may not be enforced by such courts.
22. RESOLUTION OF CLAIMS.
A. ARBITRATION. A claim by either party for breach or
enforcement of a provision of this Agreement and any other
claim or dispute related to or arising out of Executive's
employment by Company is subject to binding arbitration, and
the parties hereby waive their right to jury trial. The
arbitration shall be conducted through the American
Arbitration Association ("AAA"), and held before such
arbitrator as the parties may agree or, if they are unable to
do so, to be selected by obtaining nine proposed arbitrators
from AAA and alternatively striking names (Executive shall
strike first) until one name remains. The arbitration shall be
conducted in Seattle, Washington according to the AAA
Commercial Arbitration Rules then in effect. A claim may be
initiated by either party by submitting a written claim to
AAA, with a copy to the other party. The decision of the
arbitrator shall be final and conclusive, and the parties
waive the right to trial de novo or appeal, excepting only for
the purpose of enforcing the arbitrator's decision, for which
purpose the parties agree that the Superior Court for King
County, Washington shall have jurisdiction. The substantially
prevailing party will be entitled to recover reasonable
attorneys' fees and costs of the arbitration and any action
necessary for enforcement, the amount of the award to be
determined by the arbitrator and court, respectively. This
arbitration provision
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shall not apply to any claims for benefits under a benefits
plan that contains an arbitration provision.
B. TEMPORARY RESTRAINING ORDER / INJUNCTION. Irrespective of
the foregoing, Company may, at its option, proceed directly to
King County Superior Court to seek a temporary restraining
order, preliminary injunction, and/or other injunctive relief
for any violations by Executive of paragraphs 5, 6, 7, 8, 9,
and 10. The substantially prevailing party shall be entitled
to recover its reasonable costs and attorneys' fees.
23. AMENDMENT; MODIFICATION; WAIVER. No amendment, modification or
waiver of the terms of this Agreement shall be valid unless made in writing and
duly executed by the Company and the Executive. No delay or failure at any time
on the part of the Company in exercising any right, power or privilege under
this Agreement, or in enforcing any provision of this Agreement, shall impair
any such right therein, or shall affect the right of the Company thereafter to
enforce each and every provision of, power or privilege, or be construed as a
waiver of any default or as any acquiescence this Agreement in accordance with
its terms. The waiver by either party hereto of a breach or violation of any
term or provision of this Agreement shall neither operate nor be construed as a
waiver of any subsequent breach or violation.
24. CONFIDENTIALITY OF AGREEMENT. The terms of this Agreement shall be
held in confidence by each of the parties and shall not be disclosed by either
party without the other party's consent, except to the extent that disclosure is
required by applicable law, including the rules and regulations of the
Securities and Exchange Commission, or by order of a court of competent
jurisdiction.
25. BOARD APPROVAL. The Company represents and warrants to Executive
that the terms of this Agreement have been approved by the Company's Board of
Directors prior to its execution by the Company.
26. OBLIGATIONS TO OTHERS. Executive represents that his employment by
the Company and the performance of services hereunder will not result in a
breach of any non-competition or similar obligations to any former employer or
other party. Executive agrees that in the course of his employment with the
Company, he will not use, disclose or otherwise make available to the Company
any information, documents or other items which Executive may have received from
any other person (such as a former employer) and which Executive is prohibited
from so using or making available (whether by reason of any contract, court
order, law or other legal obligation by which Employee is bound).
27. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings and arrangements, both oral and
written, between the parties hereto with respect to such subject matter. This
Agreement may not be modified in any way, unless by a written instrument signed
by both the Company and the Executive.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
GLOBAL MEDIA CORP.
By: /s/ Xxx Xxxxxx
---------------------
Name: Xxx Xxxxxx
-------------------
Title: CEO
------------------
EXECUTIVE:
/s/ Xxxx Xxxxxxxxxx
---------------------
XXXX XXXXXXXXXX
By signing below, the
undersigned acknowledges
and agrees to be bound by
the provisions of Section
4.4 of this Agreement (and
solely those provisions):
/s/ Xxxxxxx Xxxxxxxx
---------------------
XXXXXXX XXXXXXXX
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