AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT
TO EMPLOYMENT AGREEMENT
This
Agreement, dated as of July 11, 2007 (“Effective Date”), is between GoFish
Corporation (the “Company”) and Xxxx Xxxxxxxxx, an individual (“Executive”)
(collectively, “the Parties”).
Whereas,
the Company and Executive are parties to an Employment Agreement dated on or
about October 30, 2006 (the “Prior Agreement”);
Whereas
the Parties desire to amend the Prior Agreement and change the officer status
of
Executive as set forth below; and
Whereas
the Prior Agreement as amended by this Agreement shall be referred to as the
“Amended Agreement”;
Therefore,
for good and sufficient consideration the receipt of which is hereby
acknowledged, the Parties agree as follows:
1. Section
2
of the Prior Agreement is hereby amended to read as follows:
2.
Position
and Duties.
During
the term of the Executive’s employment hereunder, and consistent with Section 4
“Hours of Work”, below, the Executive shall continue to serve in, and assume
duties and responsibilities consistent with, the position of Chief Technology
Officer of a public company, which may include, but are not limited to, serving
role in the technology/engineering team; driving overall technology and design
in terms of the Company’s technology and product platforms, application
infrastructure, tactical systems management methodology, and solutions design;
working to define best-practices in the overall design and architecture of
the
Company’s application architecture; crafting effective approaches to addressing
the unique challenges in and around reliability, speed, and scale; managing,
on
an on-going basis, the Company’s platform and infrastructure; developing and
managing the Company’s technology strategy and team; and performing such
additional or different duties as the Chief Executive Officer of the Company
shall determine from time to time.
2. Executive
hereby resigns his status as an officer of GoFish effective as of July 11,
2007,
and GoFish accepts such resignation. Such resignation shall not affect
Executive’s title under the Amended Agreement.
3. Section
4
of the Prior Agreement is hereby amended to read as follows:
4.
Hours
of Work.
The
Executive shall work on average one day (eight hours) per week during the
Company’s regular business hours. The nature of the Executive’s employment with
the Company requires flexibility in the days and hours that the Executive must
work, and may necessitate that the Executive work on other or additional days
and hours on an occasional basis.
4. Section
6
of the Prior Agreement is hereby amended to read as follows:
6.
Compensation.
During
the Employment Period, the Company shall pay Executive at the rate of Three
Thousand Two Hundred Dollars ($3,200) per month. Payments shall be made on
the
Company’s regular payroll dates and shall be net of withholdings required by
law. Executive shall not be eligible for any bonus payments for the calendar
year 2006 or thereafter.
5. Section
8
of the Prior Agreement is hereby amended to read as follows:
8.Vacation.
Executive shall not be eligible for vacation.
6. Sections
9(c) and 9(d) of the Prior Agreement are hereby amended to read as
follows:
(c)
Option
Vesting and Exercise.
Effective as of June 30, 2007, sixteen and two-thirds percent (16.67%) of the
Option (45,834 shares) shall be vested and exercisable and forty-five and
five-sixths percent (45.83%) of the Option (126,042 shares) shall expire,
leaving thirty-seven and one half percent (37.5%) of the Option (103,124 shares)
unexpired as of such date (“Unexpired Option”). On the last day of each month
thereafter, continuing for the next eighteen (18) months so long as Executive
remains employed by the Company, an additional one eighteenth of the Unexpired
Option shall vest, subject to Section 9(d).
(d)
Termination.
If the
Executive’s employment is terminated either by Executive or by the Company, with
or without cause, all unvested Awards shall immediately expire as of the
effective the date of the termination of employment. Vested Awards, to the
extent unexercised, shall expire one month after the termination of
employment.
7. Section
11 of the Prior Agreement is hereby amended to read as follows:
11.
Termination.
Either
Executive or the Company may terminate Executive’s employment with or without
cause upon written notice to the other Party. Upon termination of Executive’s
employment, the Company shall have no further obligations or liability to
Executive or his heirs, administrators or executors with respect to compensation
and benefits thereafter, except for the obligation to pay Executive, or his
heirs, administrators, or executors in the event Executive is no longer living,
any earned but unpaid base salary through Executive’s last day of employment
with the Company, and to reimburse, pursuant to Section 7, any expenses
reasonably incurred through Executive’s last day of employment with the Company.
Executive’s employment with the Company shall terminate automatically upon the
death of Employee.
8. The
provisions of the Prior Agreement not amended by this Agreement shall remain
in
full force and effect.
9. Any
dispute arising under the Prior Agreement, this Agreement, or the Amended
Agreement shall be resolved by arbitration in the manner provided by Section
14,
Dispute Resolution, of the Amended Agreement.
10. The
Amended Agreement is intended to be the final, complete, and exclusive statement
of the terms of Executive’s employment by the Company. The Amended Agreement
supersedes all other prior and contemporaneous agreements and statements,
whether written or oral, express or implied, pertaining in any manner to the
employment of executive, and it may not be contradicted by evidence of any
prior
or contemporaneous statements or agreements. To the extent that the practices,
policies, or procedures of the Company, now or in the future, apply to Executive
and are inconsistent with the terms of the Amended Agreement, the provisions
of
the Amended Agreement shall control
11. This
Agreement and the Amended Agreement shall be construed as a whole, according
to
their fair meaning, and not in favor of or against any party. By way of example
and not in limitation, said Agreements shall not be construed in favor of the
party receiving a benefit nor against the party responsible for any particular
language in said Agreements.
12. This
Agreement and the Amended Agreement may not be amended except by an instrument
in writing, signed by each of the Parties. No failure to exercise and no delay
in exercising any right, remedy, or power under either Agreement shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
remedy, or power under either Agreement preclude any other or further exercise
thereof, or the exercise of any other right, remedy, or power provided herein
or
by law or in equity.
13. Executive
acknowledges that he has had the opportunity to consult legal counsel in regard
to this Agreement and the Amended Agreement, that he has read and understands
this Agreement and the Amended Agreement, that he is fully aware of its legal
effect, and that he has entered into it freely and voluntarily and based on
his
own judgment and not on any representations or promises other than those
contained in this Agreement and the Amended Agreement.
14. This
Agreement shall be governed by California law.
The
Parties have duly executed this Agreement as of the date first written
above.
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/s/
Xxxx Xxxxxxxxx
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Xxxx
Xxxxxxxxx
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GoFish
Corporation
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By: /s
Xxxxxxx Xxxxxx
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| Its: President |
