EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT (this “Agreement”)
is
made and entered into and effective as of February 26, 2007 (the “Effective
Date”),
between GoFish Corporation (the “Company”),
and
Xxxxxxx Xxxxxx, an individual (the “Executive”).
WHEREAS,
the Company and the Executive wish to memorialize the terms and conditions
of
the Executive’s employment by the Company in the position of President, Head of
Strategy and Corporate Development;
NOW,
THEREFORE, in consideration of the covenants and promises contained herein,
the
Company and the Executive agree as follows:
1. Employment
Period.
The
Company offers to employ the Executive, and the Executive agrees to be employed
by Company, in accordance with the terms and subject to the conditions of this
Agreement, commencing on the Effective Date and terminating on the fourth
anniversary of the Effective Date (the “Scheduled
Termination Date”),
unless terminated in accordance with the provisions of Section 10 below, in
which case the provisions of Section 10 shall control; provided,
however,
that
unless either party provides the other party with written notice of his or
its
intention not to renew this Agreement at least 90 days prior to the expiration
of the initial term or any renewal term of this Agreement (as the case may
be),
this Agreement shall automatically renew for additional one-year periods
commencing on the day after such expiration date. The Executive affirms that
no
obligation exists between the Executive and any other entity which would prevent
or impede the Executive’s immediate and full performance of every obligation of
this Agreement.
2. Position
and Duties.
During
the term of the Executive’s employment hereunder, the Executive shall continue
to serve in, and assume duties and responsibilities consistent with, the
position of President, unless and until otherwise instructed by the Company.
The
Executive agrees to devote to the Company eighty percent (80%) of his working
time, as well as his skill, energy, and best business efforts, during the term
of his employment with the Company, and the Executive shall not engage in
business activities outside the scope of his employment with the Company if
such
activities would detract from or interfere with his ability to fulfill his
responsibilities and duties under this Agreement or require substantial amounts
of his time or of his services. Notwithstanding the foregoing provisions of
this
Section 2, the Company is aware of and consents to the Executive’s continuing
involvement with Global Asset Capital.
3. No
Conflicts.
The
Executive covenants and agrees that for so long as he is employed by the
Company, he shall inform the Company of each and every future business
opportunity presented to the Executive that arises within the scope of the
Business of the Company (as defined below) and would be feasible for the
Company, and that he will not, directly or indirectly, exploit any such
opportunity for his own account.
4. Location.
The
locus of the Executive’s employment with the Company shall be the Company’s
office located in San Francisco, California and any other locus where the
Company now or hereafter has a business facility.
5. Compensation.
(a) Base
Salary.
During
the term of this Agreement, the Company shall pay, and the Executive agrees
to
accept, in consideration for the Executive’s services hereunder, pro
rata
bi-weekly payments of the annual salary of $175,000.00, less all applicable
taxes and other appropriate deductions.
The
Compensation Committee (the “Compensation Committee”) of the Company’s Board of
Directors (the “Board”) shall also review the Executive’s base salary annually
and shall make a recommendation to the Board as to whether such base salary
should be increased, which decision shall be within the Board’s sole
discretion.
(b) Bonus.
During
the term of this Agreement, the Executive shall be entitled to receive a bonus,
which may be paid annually or semi-annually at the discretion of the
Compensation Committee (or by the independent members of the Board if there
exists no Compensation Committee), the aggregate of which bonus shall not exceed
40% of his base salary, and the actual amount of which bonus shall be determined
according to achievement of performance-related financial and operating targets
established annually for the Company and the Executive by the Compensation
Committee (or by the independent members of the Board if there exists no
Compensation Committee). As of the Effective Date, and unless modified by the
Compensation Committee (or by the independent members of the Board if there
exists no Compensation Committee), the Executive shall be entitled to receive
a
semi-annual bonus. The performance targets described above for each fiscal
year
shall be adopted by the Compensation Committee promptly after the end of the
prior fiscal year, but in no event later than March 31st
of the
current fiscal year. Each bonus, or in the case of a semi-annual bonus, one
installment of the semi-annual bonus, shall be paid by the Company to the
Executive promptly after the first meeting of the Board following the completion
of the annual audit, which meeting shall occur on or about April 15th of each
year.
(c) Initial
Compensation.
As an
incentive to formalize his existing relationship with the Company, and in
recognition of the Executive’s seven months of full-time work already completed
without compensation on behalf of the Company, the Executive will receive,
and
the Company agrees to pay, a cash amount of $100,000, payable within 45 days
of
the execution of this Agreement.
6. Expenses.
During
the term of this Agreement, the Executive shall be entitled to payment or
reimbursement of any reasonable expenses paid or incurred by him in connection
with and related to the performance of his duties and responsibilities hereunder
for the Company. All requests by the Executive for payment of
reimbursement of such expenses shall be supported by appropriate invoices,
vouchers, receipts, or such other supporting documentation in such form and
containing such information as the Company may from time to time require,
evidencing that the Executive, in fact, incurred or paid said expenses.
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7. Vacation.
During
the term of this Agreement, the Executive shall be entitled to accrue, on a
pro
rata basis,
20
vacation days per year. The Executive shall be entitled to carry over any
accrued, unused vacation days from year to year without limitation.
8. Stock
Options.
The
Company hereby agrees that the Executive
shall be granted stock options on the terms and conditions hereinafter
stated:
(a) Grant
of Options.
In its
sole discretion and at any time during the term of this Agreement, the Company
may grant
the
Executive an option to purchase shares of the
Company’s common voting stock (the “Option”)
under
the Company’s 2006 Stock Option Plan (the “Stock
Option Plan”).
Each
such grant shall be evidenced by an Option Agreement as contemplated by the
Stock Option Plan. The Executive shall be eligible for such grants of Options
and other permissible awards (collectively with Options, “Awards”) under the
Stock Option Plan as the Compensation Committee or the Board shall determine
in
its sole discretion.
(b) Option
Price; Term.
The
per
share
exercise price of the Option shall be the market value of a share of the Company
on the date of the grant. The term of the Option shall be ten years from the
date of grant.
(c) Vesting
and Exercise.
One-third (1/3) of the Option shall be vested and exercisable on the first
anniversary of the grant of the Option. Thereafter, an additional one-thirty
sixth (1/36) of the Option shall be vested and become exercisable on the last
day of each month, subject to the provisions of Section 8(d) below.
(d) Termination
of Service; Accelerated Vesting.
(i) If
the
Executive’s employment is terminated for Cause, as such term is defined below,
all unvested Awards shall immediately expire effective the date of termination
of employment. Vested Awards, to the extent unexercised, shall expire 120 days
after termination of employment.
(ii) If
the
Executive’s employment is terminated voluntarily by the Executive without Good
Reason, as such term is defined below, all unvested Awards shall immediately
expire effective the date of termination of employment. Vested Awards, to the
extent unexercised, shall expire 120 days after the termination of
employment.
(iii) If
the
Executive’s employment terminates on account of death or Disability, as defined
below, all unvested Awards shall immediately expire effective the date of
termination of employment. Vested Awards, to the extent unexercised, shall
expire one year after the termination of employment.
(iv) If
the
Executive’s employment is terminated (A) in connection with a Change of Control
(or following a Change of Control event), (B) by the Company without Cause,
or
(C) by the Executive for Good Reason, all unvested Awards shall immediately
vest
and become exercisable effective the date of termination of employment, and
to
the extent unexercised, shall expire one year after any such event.
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9. Other
Benefits.
(a) During
the term of this Agreement, the Executive shall be eligible to participate
in
incentive, savings, retirement (401(k)), and welfare benefit plans, including,
without limitation, health, medical,
dental,
vision,
life (including accidental death and dismemberment),
and
disability insurance plans (collectively, “Benefit
Plans”),
in
substantially the same manner, including but not limited to responsibility
for
the cost thereof, and at
substantially the same levels, as the Company makes
such
opportunities available to all of the Company’s managerial
or salaried executive
employees.
(b) The
Executive’s spouse and dependent minor children will be covered under the
Benefit Plans providing health, medical, dental, and vision benefits, in
substantially the same manner, including but not limited to responsibility
for
the cost thereof, and at substantially the same levels, as the Company makes
such opportunities available to the spouses and dependent minor children to
all
of the Company’s managerial or salaried executive employees.
(c) The
Company shall purchase and maintain traditional directors and officers liability
insurance coverage in the amount of at least $5,000,000 covering the Company’s
officers and directors, including the Executive, as of the Effective
Date.
(d)
Until
such time as Executive becomes eligible for coverage by the Company’s medical
coverage, the Company shall pay the cost of COBRA coverage provided by the
Executive’s prior employer, to the same extent as such coverage was paid for by
such prior employer.
10. Termination
of Employment.
(a) Death.
In the
event that during the term of this Agreement the Executive dies, this Agreement
and the Executive’s employment with the Company shall automatically terminate
and the Company shall have no further obligations or liability to the Executive
or his heirs, administrators, or executors with respect to compensation and
benefits accruing thereafter, except for the obligation to pay the Executive’s
heirs, administrators, or executors any earned but unpaid base salary, unpaid
pro
rata
annual
bonus, and unused vacation days accrued through the date of death, and vested
but unexercised Awards; provided,
that
nothing contained in this Paragraph shall be deemed to excuse any breach by
the
Company of any provision of this Agreement. The Company shall deduct, from
all
payments made hereunder, all applicable taxes, including income tax, FICA,
and
FUTA, and other appropriate deductions.
(b) “Disability.”
In
the
event that, during the term of this Agreement, the Executive shall be prevented
from performing his duties and responsibilities hereunder to the full extent
required by the Company by reason of Disability (as defined below), this
Agreement and the Executive’s employment with the Company shall automatically
terminate, and the Company shall have no further obligations or liability to
the
Executive or his heirs, administrators, or executors with respect to
compensation and benefits accruing thereafter, except for the obligation to
pay
the Executive or his heirs, administrators, or executors any earned but unpaid
base salary,
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unpaid
pro
rata
annual
bonus, and unused vacation days accrued through the Executive’s last date of
Employment with the Company, and vested but unexercised Awards; provided,
that
nothing contained in this Paragraph shall be deemed to excuse any breach by
the
Company of any provision of this Agreement. The Company shall deduct, from
all
payments made hereunder, all applicable taxes, including income tax, FICA,
and
FUTA, and other appropriate deductions through
the last date of the Executive’s employment with the Company. For purposes of
this Agreement, “Disability”
shall
mean a physical or mental disability that prevents the performance by the
Executive, with or without reasonable accommodation, of his duties and
responsibilities hereunder for a period of not less than an aggregate of three
months during any twelve consecutive months.
(c) “Cause.”
(i) At
any
time during the term of this Agreement, the Company may terminate this Agreement
and the Executive’s employment hereunder for “Cause.” For purposes of this
Agreement, “Cause”
shall
be defined as the occurrence of: (A)
gross
neglect, malfeasance, or gross insubordination in performing the Executive’s
duties under this Agreement; (B) the Executive’s conviction for a felony,
excluding convictions associated with traffic violations; (C) an egregious
act
of dishonesty (including without limitation theft or embezzlement) or a
malicious action by the Executive toward the Company’s customers or employees;
(D) a willful and material violation of any provision of Sections 11 and 12
hereof; (E) intentional reckless conduct that is materially detrimental to
the
business or reputation of the Company; or (F) material failure, other than
by
reason of Disability, to carry out reasonably assigned duties or instructions
consistent with the title of President and Head of Strategy and Corporate
Development (provided that material failure to carry out reasonably assigned
duties shall be deemed to constitute Cause only after a finding by the Board
of
Directors, or a duly constituted committee thereof, of material failure on
the
part of the Executive and the failure to remedy such performance to the Board’s
or such committee’s satisfaction within 30 days after delivery of written notice
to the Executive of such finding).
(ii) Upon
termination of this Agreement for Cause, the Company shall have no further
obligations or liability to the Executive or his heirs, administrators, or
executors with respect to compensation and benefits thereafter, except for
the
obligation to pay the Executive any earned but unpaid base salary, unpaid
pro
rata
annual
bonus, and unused vacation days accrued through the Executive’s last day of
employment with the Company. The Company shall deduct, from all payments made
hereunder, all applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions.
(d) Change
of Control.
For
purposes of this Agreement, “Change
of Control”
means
the occurrence of, or the Company’s Board’s vote to approve: (A) any
consolidation or merger of the Company pursuant to which the stockholders
of the Company immediately before the transaction do not retain immediately
after the transaction, in substantially the same proportions as their ownership
of shares of the Company’s
voting
stock immediately before the transaction, direct or indirect beneficial
ownership of more than 50% of the total combined voting power of the outstanding
voting securities of the surviving business entity;
(B) any
sale, lease, exchange, or other transfer (in one transaction or a series of
related transactions) of all, or substantially all,
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of
the
assets of the Company other than any sale, lease, exchange, or other transfer
to
any company where the Company owns, directly or indirectly, 100% of the
outstanding voting securities of such company after any such transfer; or
(C)
the
direct or indirect sale or exchange in a single or series of related
transactions by the stockholders of the Company of more than 50% of the voting
stock of the Company.
(e) “Good
Reason.”
(i) At
any
time during the term of this Agreement, subject to the conditions set forth
in
Section 10(e)(ii) below, the Executive may terminate this Agreement and the
Executive’s employment with the Company for “Good Reason.” For purposes of this
Agreement, “Good
Reason”
shall
mean the occurrence of any of the following events: (A) the
assignment, without the Executive’s consent, to the Executive of duties that are
significantly different from, and that result in a substantial diminution of,
the duties that he assumed on the Effective Date; (B) the
assignment, without the Executive’s consent, to the Executive of a title that is
different from and subordinate to the title specified in Section 2 of this
Agreement, provided,
however,
that
the retention of another executive as President or Chief Executive Officer
shall
not, in and of itself, entitle the Executive to claim a termination for Good
reason hereunder; (C) upon
a
Change of Control,
the
failure of the entity acquiring the Company to assume duties and liabilities
toward the Executive that are substantially similar to those outlined in this
Agreement; (D) the assignment, without the Executive’s consent, to the Executive
of duties that are significantly different from, and that result in a
substantial diminution of, the duties that he assumed on the Effective Date
within 12 months after a Change of Control; or (E) material
breach by the Company of this Agreement.
(ii) The
Executive shall not be entitled to terminate his employment with the Company
and
this Agreement for Good Reason unless and until he shall have delivered written
notice to the Company of his intention to terminate this Agreement and his
employment with the Company for Good Reason, which notice specifies in
reasonable detail the circumstances claimed to provide the basis for such
termination for Good Reason, and the Company shall not have eliminated the
circumstances constituting Good Reason within 30 days of its receipt from the
Executive of such written notice.
(iii) In
the
event that the Executive terminates this Agreement and his employment with
the
Company for Good Reason, the Company shall pay or provide to the Executive
(or,
following his death, to the Executive’s heirs, administrators, or executors):
(A) any earned but unpaid base salary, unpaid pro
rata
annual
bonus, and unused vacation days accrued through the Executive’s last day of
employment with the Company; (B) the Executive’s full base salary through the
Scheduled Termination Date (as the same may have been extended through any
extensions of this Agreement); (C) the
value
of vacation days that the Executive would have accrued through the Scheduled
Termination Date; (D) continued coverage, at the Company’s expense, under all
Benefits Plans in which the Executive was a participant immediately prior to
his
last date of employment with the Company, or in the event that any such Benefit
Plans do not permit coverage of the Executive following his last date of
employment with the Company, under benefit plans that provide no less coverage
than such Benefit Plans, through the Scheduled Termination Date; and (E)
severance in an amount equal to one year’s base salary, as in effect immediately
prior to the Executive’s termination hereunder. All
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payments
due hereunder shall be made within 45 days after the date of termination of
the
Executive’s employment.
The
Company shall deduct from all payments made hereunder, all applicable taxes,
including income tax, FICA, and FUTA, and other appropriate
deductions.
(iv) The
Executive shall have no duty to mitigate his damages, except that continued
benefits required to be provided under Section 10(e)(iii)(D) shall be canceled
or reduced to the extent of any comparable benefit coverage offered to the
Executive by a subsequent employer or other person or entity for which the
Executive performs services, including, but not limited to, consulting services.
(f) Without
“Cause” or “Good Reason.”
(i) By
The
Executive.
At any
time during the term of this Agreement, the Executive shall be entitled to
terminate this Agreement and the Executive’s employment with the Company without
Good Reason by providing prior written notice of at least 45 days to the
Company. Upon termination by the Executive of this Agreement and the Executive’s
employment with the Company without Good Reason, the Company shall have no
further obligations or liability to the Executive or his heirs, administrators,
or executors with respect to compensation and benefits thereafter, except for
the obligation to pay the Executive any earned but unpaid base salary and unused
vacation days accrued through the Executive’s last day of employment with the
Company. The Company shall deduct from all payments made hereunder all
applicable taxes, including income tax, FICA, and FUTA, and other appropriate
deductions.
(ii) By
The
Company.
At any
time during the term of this Agreement, the Company shall be entitled to
terminate this Agreement and the Executive’s employment with the Company without
Cause by providing prior written notice of at least 45 days to the Executive.
Upon termination by the Company of this Agreement and the Executive’s employment
with the Company without Cause, the Company shall pay or provide to the
Executive (or, following his death, to the Executive’s heirs, administrators, or
executors): (A) any earned but unpaid base salary, unpaid pro
rata
annual
bonus, and unused vacation days accrued through the Executive’s last day of
employment with the Company; (B) the Executive’s full base salary through the
Scheduled Termination Date (as the same may have been extended through any
extensions of this Agreement); (C) the value of vacation days that the Executive
would have accrued through the Scheduled Termination Date; (D) continued
coverage, at the Company’s expense, under all Benefits Plans in which the
Executive was a participant immediately prior to his last date of employment
with the Company, or in the event that any such Benefit Plans do not permit
coverage of the Executive following his last date of employment with the
Company, under benefit plans that provide no less coverage than such Benefit
Plans, through the Scheduled Termination Date; and (E) severance in an amount
equal to one year’s base salary, as in effect immediately prior to the
Executive’s termination hereunder. All payments due hereunder shall be made
within 45 days after the date of termination of the Executive’s employment. The
Company shall deduct from all payments made hereunder all applicable taxes,
including income tax, FICA, and FUTA, and other appropriate deductions.
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11. Confidential
Information.
(a) The
Executive expressly acknowledges that, in the performance of his duties and
responsibilities with the Company, he has been exposed since prior to the
Effective Date, and will be exposed, to the trade secrets, business and/or
financial secrets, and confidential and proprietary information of the Company,
its affiliates, and/or its clients, business partners, or customers
(“Confidential
Information”).
The
term “Confidential Information” includes information or material that has actual
or potential commercial value to the Company, its affiliates, and/or its
clients, business partners, or customers and is not generally known to and
is
not readily ascertainable by proper means to persons outside the Company, its
affiliates, and/or its clients or customers.
(b) Except
as
authorized in writing by the Board, during the performance of the Executive’s
duties and responsibilities for the Company and until such time as any such
Confidential Information becomes generally known to and readily ascertainable
by
proper means to persons outside the Company, its affiliates, and/or its clients,
business partners, or customers, the Executive agrees to keep strictly
confidential and not use for his personal benefit or the benefit to any other
person or entity (other than the Company) Confidential Information.
“Confidential Information” includes the following, whether or not expressed in a
document or medium, regardless of the form in which it is communicated, and
whether or not marked “trade secret” or “confidential” or any similar legend:
(i) lists
of
and/or information concerning customers, prospective customers, suppliers,
employees, consultants, co-venturers, and/or joint venture candidates of the
Company, its affiliates, or its clients or customers; (ii) information
submitted by customers, prospective customers, suppliers, employees,
consultants, and/or co-venturers of the Company, its affiliates, and/or its
clients or customers; (iii) non-public
information proprietary to the Company, its affiliates, and/or its clients
or
customers, including, without limitation, cost information, profits, sales
information, prices, accounting, unpublished financial information, business
plans or proposals, expansion plans (for current and proposed facilities),
markets and marketing methods, advertising and marketing strategies,
administrative procedures and manuals, the terms and conditions of the Company’s
contracts and trademarks and patents under consideration, distribution channels,
franchises, investors, sponsors, and advertisers; (iv) proprietary
technical information concerning products and services of the Company, its
affiliates, and/or its clients, business partners, or customers, including,
without limitation, product data and specifications, diagrams, flow charts,
know
how, processes, designs, formulae, inventions, and product development; (v)
lists
of
and/or information concerning applicants, candidates, or other prospects for
employment, independent contractor or consultant positions at or with any actual
or prospective customer or client of the Company and/or its
affiliates,
any and
all confidential processes, inventions or methods of conducting business of
the
Company, its affiliates, and/or its clients, business partners, or customers;
(vi) acquisition or merger targets; (vii) business plans or strategies, data,
records, financial information, or other trade secrets concerning the actual
or
contemplated business, strategic alliances, policies, or operations of the
Company or its affiliates; (viii) any
and
all versions of proprietary computer software (including source and object
code), hardware, firmware, code, discs, tapes, data listings, and documentation
of the Company;
or (ix)
any other confidential information disclosed to the Executive by, or which
the
Executive obligated under a duty of confidence from, the Company, its
affiliates, and/or its clients, business partners, or customers.
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(c) The
Executive affirms that he does not possess and will not rely upon the protected
trade secrets or confidential or proprietary information of his prior
employer(s) in providing services to the Company.
(d) In
the
event that the Executive’s employment with the Company terminates for any
reason, the Executive shall deliver forthwith to the Company any and all
originals and copies of Confidential Information.
12. Non-Competition
And Non-Solicitation.
(a) The
Executive agrees and acknowledges that by virtue of his position in the Company,
he is familiar with and in possession of the Company’s trade secrets, customer
information, and other Confidential Information, which are valuable to the
Company and
that
their goodwill, protection, and maintenance constitute a legitimate business
interest of the Company, to be protected by the non-competition restrictions
set
forth herein. The Executive agrees and acknowledges that the non-competition
restrictions set forth herein are reasonable and necessary and do not impose
undue hardship or burdens on the Executive. The Executive also acknowledges
that
the products and services developed or provided by the Company, its
affiliates, and/or its clients or customers
are or
are intended to be sold, provided, licensed, and/or distributed to customers
and
clients in and throughout the United States (the “Geographic
Boundary”)
(to
the extent the Company comes to own or operate any material asset in other
areas
of the United States during the term of the Executive’s employment, the
definition of Geographic Boundary shall be expanded to cover such other areas),
and that the Geographic Boundary, scope of prohibited competition, and time
duration set forth in the non-competition restrictions set forth below are
reasonable and necessary to maintain the value of the Confidential Information
of, and to protect the goodwill and other legitimate business interests of,
the
Company, its
affiliates, and/or its clients or customers.
(b) The
Executive agrees that the Company will be irreparably damaged if the Executive
were to provide services or to otherwise participate in the business of any
person or other company competing with the Company in violation of this
Agreement and that any such competition by the Executive would result in
significant loss of goodwill by the Company. Therefore, the Executive hereby
agrees and covenants that he shall not, without the prior written consent of
the
Company, directly or indirectly, in any capacity whatsoever, including, without
limitation, as an employee, employer, consultant, principal, partner,
shareholder, officer, director or in any other individual or representative
capacity (other than a holder of less than one percent (1%) of the outstanding
voting shares of any publicly held company), or whether on the Executive’s own
behalf or on behalf of any other person or entity or otherwise howsoever, during
the Executive’s employment with the Company and for a period equal to one year
(two years, if termination of this Agreement or of Executive’s employment is
pursuant to Section 10(f)(i) hereof) following the termination of this Agreement
or of the Executive’s employment with the Company, in the Geographic
Boundary:
(i) Directly
or indirectly engage, own, manage, operate, control, be employed by, consult
for, participate in, render services for, or be connected in any manner with
the
ownership, management, operation, or control of any business in competition
with
the Business of the Company. The “Business
of the Company”
is
defined as the Internet video industry within the Geographic Boundary.
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(ii) Directly
or indirectly through another person recruit, solicit, interfere with, or hire,
or attempt to recruit, solicit, interfere with, or hire, any employee or
independent contractor of the Company to leave the employment (or independent
contractor relationship) thereof, whether or not any such employee or
independent contractor is party to an employment agreement. The Company
acknowledges that this Section will not be violated by general advertising
or
general solicitations that are not targeted or directed specifically to
employees of the Company, nor by the consideration or acceptance of unsolicited
applications for employment by such individuals.
(iii) Directly
or indirectly through another person, attempt in any manner to solicit or accept
from any customer of the Company with whom the Executive had significant contact
during the term of the Agreement, business of the kind or competitive with
the
business done by the Company with such customer or persuade or attempt to
persuade any such customer to cease to do business or to reduce the amount
of
business which such customer has customarily done or is reasonably expected
to
do with the Company, or if any such customer elects to move its business to
an
entity other than the Company, provide any services (of the kind or competitive
with the Business of the Company) for such customer, or have any discussions
regarding any such service with such customer on behalf of such other
person.
(iv) Interfere
with any relationship, contractual or otherwise, between the Company and any
other party, including without limitation, any supplier, co-venturer, or joint
venturer of the Company or attempt to persuade such entity to discontinue or
reduce its business with the Company or otherwise interfere in any way with
the
Business of the Company.
13. Dispute
Resolution.
The
Executive and the Company agree that any dispute or claim, whether based on
contract, tort, discrimination, retaliation, or otherwise, relating to, arising
from, or connected in any manner with this Agreement or with the Executive’s
employment with Company shall be resolved exclusively through final and binding
arbitration under the auspices of the American Arbitration Association
(“AAA”).
The
arbitration shall be held in San Francisco, CA. The arbitration shall proceed
in
accordance with the National Rules for the Resolution of Employment Disputes
of
the AAA in effect at the time the claim or dispute arose, unless other rules
are
agreed upon by the parties. The arbitration shall be conducted by one arbitrator
who is a member of the AAA, unless the parties mutually agree otherwise. The
arbitrators shall have jurisdiction to determine any claim, including the
arbitrability of any claim, submitted to them. The arbitrators may grant any
relief authorized by law for any properly established claim. The interpretation
and enforceability of this Paragraph of this Agreement shall be governed and
construed in accordance with the United States Federal Arbitration Act, 9.
U.S.C. § 1, et
seq.
More
specifically, the parties agree to submit to binding arbitration any claims
for
unpaid wages or benefits, or for alleged discrimination, harassment, or
retaliation, arising under Title VII of the Civil Rights Act of 1964, the Equal
Pay Act, the National Labor Relations Act, the Age Discrimination in Employment
Act, the Americans With Disabilities Act, the Employee Retirement Income
Security Act, the Civil Rights Act of 1991, the Family and Medical Leave Act,
the Fair Labor Standards Act, Sections 1981 through 1988 of Title 42 of the
00
Xxxxxx
Xxxxxx Code, COBRA, the New York State Human Rights Law, the New York City
Human
Rights Law, the California Fair Employment and Housing Act, and any other
federal, state, or local law, regulation, or ordinance, and any common law
claims, claims for breach of contract, or claims for declaratory relief. The
Executive acknowledges that the purpose and effect of this Paragraph is solely
to elect private arbitration in lieu of any judicial proceeding he might
otherwise have available to him in the event of an employment-related dispute
between him and the Company. Therefore, the Executive hereby waives his right
to
have any such employment-related dispute heard by a court or jury, as the case
may be, and agrees that his exclusive procedure to redress any
employment-related claims will be arbitration.
14. Notice.
For
purposes of this Agreement, notices and all other communications provided for
in
this Agreement or contemplated hereby shall be in writing and shall be deemed
to
have been duly given when personally delivered, delivered by a nationally
recognized overnight delivery service or when mailed United States Certified
or
registered mail, return receipt requested, postage prepaid, and addressed as
follows:
If
to the
Company:
GoFish
Corporation
000
Xxxxx
Xxxxxx
Xxxxx
000
Xxx
Xxxxxxxxx, XX 00000
(000)
000-0000
(facsimile)
(000)
000-0000 (direct)
If
to the
Executive:
Xxxxxxx
Xxxxxx
0000
Xxxxxxxx #000
Xxx
Xxxxxxxxx, XX 00000
(000)
000-0000 (direct)
15. Miscellaneous.
(a) All
issues and disputes concerning, relating to, or arising out of this Agreement
and from the Executive’s employment by the Company, including, without
limitation, the construction and interpretation of this Agreement, shall be
governed by and construed in accordance with the internal laws of the State
of
California, without giving effect to the principles of conflicts of law of
any
jurisdiction.
(b) The
Executive and the Company agree that any provision of this Agreement deemed
unenforceable or invalid may be reformed to permit enforcement of the
objectionable provision to the fullest permissible extent. Any provision of
this
Agreement deemed unenforceable after modification shall be deemed stricken
from
this Agreement, with the remainder of the Agreement being given its full force
and effect.
11
(c) The
Company shall be entitled to equitable relief, including injunctive relief
and
specific performance as against the Executive, for the Executive’s threatened or
actual breach of Section 11 or 12 of this Agreement, as money damages for a
breach thereof would be incapable of precise estimation, uncertain, and an
insufficient remedy for an actual or threatened breach of Section 11 or 12
of
this Agreement. The Executive and the Company agree that any pursuit of
equitable relief in respect of Section 11 or 12 of this Agreement shall have
no
effect whatsoever regarding the continued viability and enforceability of
Section 13 of this Agreement.
(d) Any
waiver or inaction by the Company for any breach of this Agreement shall not
be
deemed a waiver of any subsequent breach of this Agreement.
(e) The
Executive and the Company independently have made all inquiries regarding the
qualifications and business affairs of the other which either party deems
necessary. The Executive affirms that he fully understands this Agreement’s
meaning and legally binding effect. Each party has participated fully and
equally in the negotiation and drafting of this Agreement. Each party assumes
the risk of any misrepresentation or mistaken understanding or belief relied
upon by him or it in entering into this Agreement.
(f) The
Executive’s obligations under this Agreement are personal in nature and may not
be assigned by the Executive to any other person or entity.
(g) This
instrument constitutes the entire Agreement between the parties regarding its
subject matter. When signed by all parties, this Agreement supersedes and
nullifies all prior or contemporaneous conversations, negotiations, or
agreements, oral and written, regarding the subject matter of this Agreement.
In
any future construction of this Agreement, this Agreement should be given its
plain meaning. This Agreement may be amended only by a writing signed by the
Company and the Executive.
(h) This
Agreement may be executed in counterparts, a counterpart transmitted via
facsimile, and all executed counterparts, when taken together, shall constitute
sufficient proof of the parties’ entry into this Agreement. The parties agree to
execute any further or future documents which may be necessary to allow the
full
performance of this Agreement. This Agreement contains headings for ease of
reference. The headings have no independent meaning.
(i) THE
EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT
AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION THEREOF. THIS
AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY BOTH
PARTIES.
[Signature
Page Follows]
12
IN
WITNESS WHEREOF, the Company and the Executive have executed this Employment
Agreement as of the day and year first above written.
| Executive | GoFish Corporation | ||
| /s/ |
By:
|
/s/ | |
|
Xxxxxxx Xxxxxx |
Name:
Xxxxxxx Xxxxxxx
Title: Chief Executive
Officer
|
