NON-COMPETITION AGREEMENT
Exhibit 1.3d
This
Non-Competition Agreement (the “Agreement”) is entered
into by and between VidAngel, Inc. (the "Employer" or
“Company”), and Xxxxxxx Xxxxxx (the
"Employee").
As a
condition of Employee’s continued employment with Employer,
its subsidiaries, affiliates, successors or assigns, and in
consideration of Employee’s employment with the Company and
his receipt of the compensation now and hereafter paid to him by
Company, Employee agrees to the following:
1. Notification of New Employer. In the
event that Employee leaves the employ of the Company, Employee
hereby grants consent to notification by the Company to
Employee’s new employer about his obligations under this
Agreement.
2. Non-Compete
Covenant.
A. Covenant Not to Compete. Employee
agrees that during the course of his employment and for a period of
twelve (12) months immediately following the termination of his
employment with the Company for any reason, whether with or without
cause, at the option either of the Company or Employee, with or
without notice, Employee will not, without the prior written
consent of the Company: (i) serve as a partner, principal,
licensor, licensee, employee, consultant, officer, director,
manager, agent, affiliate, representative, advisor, promoter,
associate, investor, or otherwise for (except for passive ownership
of one percent (1%) or less of any entity whose securities have
been registered under the Securities Act of 1933, as amended, or
Section 12 of the Securities Exchange Act of 1934, as amended);
(ii) directly or indirectly, own, purchase, organize or take
preparatory steps for the organization of; or (iii) build, design,
finance, acquire, lease, operate, manage, control, invest in, work
or consult for or otherwise join, participate in or affiliate
himself with, any business whose business, products or operations
are in any respect involved in the Covered Business. For
purposes of this Agreement, “Covered Business” shall mean any
“filtering” business (i.e., making imperceptible,
skipping, or removing limited portions of the audio or video
content of a Motion Picture or the creation or provision of a
computer program or other technology that enables such filtering)
without the written authorization of the copyright owner in which
the Company is engaged or in which the Company has taken steps to
be engaged, or any service that the Company provides or has taken
steps to provide. The foregoing covenant shall cover
Employee’s activities in every part of the Territory.
For purposes of this Agreement, “Territory” shall mean: (i) all
states of the United States of America; and (ii) any other
countries in which the Company maintains non-trivial operations or
facilities, provides goods or services, has customers, or otherwise
conducted business at any time during the two-year period prior to
the date of the termination of Employee’s employment with the
Company. Should Employee obtain other employment during his
employment with the Company or within twelve (12) months
immediately following the termination of Employee’s
employment with the Company, Employee agrees to provide written
notification to the Company as to the name and address of
Employee’s new employer, the position that Employee expects
to hold, and a general description of Employee’s duties and
responsibilities, at least three (3) business days prior to
starting such employment.
B.
Acknowledgements. Employee
acknowledges that his fulfillment of the obligations contained in
this Agreement, including, but not limited to, Employee’s
obligations not to compete above, is necessary to protect to
preserve the value and goodwill of the Company. Employee also
acknowledges the time, geographic and scope limitations of his
obligations under subsection (A) above are fair and reasonable in
all respects, especially in light of the scope and nature of the
Company’s business, and that Employee will not be precluded
from gainful employment if Employee is obligated not to compete
with the Company during the period and within the Territory as
described above. In the event of Employee’s breach or
violation of this Agreement, or good faith allegation by the
Company of Employee’s breach or violation of this Agreement,
the restricted periods set forth in this Section 2 shall be tolled until such
breach or violation, or dispute related to an allegation by the
Company that Employee has breached or violated this Agreement, has
been duly cured or resolved, as applicable.
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D. Separate
Covenants. The covenants contained in subsection (A) above
shall be construed as separate covenants, one for each city, county
and state of any geographic area in the Territory. Except for
geographic coverage, each such separate covenant shall be deemed
identical in terms to the covenant contained in subsections (A)
above. If, in any judicial or arbitral proceeding, a court or
arbitrator refuses to enforce any of such separate covenants (or
any part thereof), then such unenforceable covenant (or such part)
shall be revised, or if revision is not permitted it shall be
eliminated from this Agreement, to the extent necessary to permit
the remaining separate covenants (or portions thereof) to be
enforced. In the event that the provisions of subsection (A)
above are deemed to exceed the time, geographic or scope
limitations permitted by applicable law, then such provisions shall
be reformed to the maximum time, geographic or scope limitations,
as the case may be, then permitted by such law. In the event that
the applicable court or arbitrator does not exercise the power
granted to it in the prior sentence, Employee and the Company agree
to replace such invalid or unenforceable term or provision with a
valid and enforceable term or provision that will achieve, to the
extent possible, the economic, business and other purposes of such
invalid or unenforceable term.
E. Enforcement
of Covenants.
(1)
Employee agrees that any breach by him of any of the foregoing
covenants during his employment by the Company shall be grounds for
Employee’s immediate dismissal, and unless prohibited by law,
forfeiture of any accrued bonuses or commissions, or other
compensation as liquidated damages, which shall be in addition to
and not exclusive of any and all other rights and remedies the
Company may have against Employee.
(2)
Employee further agrees that any breach of any of the foregoing
covenants may cause the Company irreparable harm. Accordingly, in
the event of any such breach, Employee consents to the entry of an
appropriate temporary and/or permanent injunction in a Court of
appropriate jurisdiction without the necessity of the Company
posting a bond or other security to the extent permitted by
applicable law. Such injunction shall be in addition to and not in
lieu of any other relief to which the Company may be entitled under
law.
3. Protected Activity Not Prohibited.
Employee understands that
nothing in this Agreement shall in any way limit or prohibit
Employee from engaging for a lawful purpose in any Protected
Activity. For purposes of this Agreement,
“Protected
Activity”
means filing a charge or complaint, or otherwise communicating,
cooperating, or participating with, any state, federal, or other
governmental agency, including the Securities and Exchange
Commission, the Equal Employment Opportunity Commission, and the
National Labor Relations Board. Notwithstanding any restrictions
set forth in this Agreement, Employee understands that he is not
required to obtain authorization from the Company prior to
disclosing information to, or communicating with, such agencies,
nor is Employee obligated to advise the Company as to any such
disclosures or communications. Employee further understands that
“Protected Activity” does not include the disclosure of
any Company attorney-client privileged communications, and that any
such disclosure without the Company’s written consent shall
constitute a material breach of this Agreement. In addition,
Employee hereby acknowledges that the Company has provided Employee
with notice in compliance with the Defend Trade Secrets Act of 2016
regarding immunity from liability for limited disclosures of trade
secrets. The full text of the notice is attached in Exhibit
A.
4. General Provisions.
A. At Will Employment. Employee
understands and agrees that nothing in this Agreement creates a
contract, express or implied, of employment for any specified
period. Employee understands and acknowledges that his employment
with the Company is for an unspecified duration and constitutes
“at-will” employment. Employee also understands that
any representation to the contrary is unauthorized and not valid
unless it is in a writing signed by the Board of Directors of the
Company. Accordingly, Employee acknowledges that his employment
relationship may be terminated at any time, with or without notice,
with or without good cause and for any reason, at Employee’s
option or at the option of the Company.
B. Governing Law. This Agreement will be
governed by the laws of the State of Utah without giving effect to
any choice of law rules or principles that may result in the
application of the laws of any jurisdiction other than
Utah.
C. Entire Agreement. This Agreement,
together with the Exhibit hereto, sets forth the entire agreement
and understanding between the Company and Employee relating to the
subject matter herein and supersedes all prior discussions or
representations between the parties, whether written or oral. No
modification of or amendment to this Agreement, nor any waiver of
any rights under this Agreement, will be effective unless in
writing signed by the Board of Directors of the Company and
Employee. Any subsequent change or changes in Employee’s
duties, salary or compensation will not affect the validity or
scope of this Agreement.
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D. Attorneys’ Fees. In the event it
is necessary or reasonably desirable to enforce the terms of this
Agreement, the party prevailing by judicial order or decision shall
recover, in addition to any other remedy, its reasonable costs and
attorneys’ fees incurred in enforcing the terms of this
Agreement.
E. Severability. If one or more of the
provisions in this Agreement are deemed void by law, then the
remaining provisions will continue in full force and
effect.
F. Successors and Assigns. This Agreement
will be binding upon Employee’s heirs, executors, assigns,
administrators and other legal representatives and will be for the
benefit of the Company, its successors, and its assigns. There are
no intended third party beneficiaries to this Agreement except as
expressly stated.
G. Waiver. Waiver by the Company of a
breach of any provision of this Agreement will not operate as a
waiver of any other or subsequent breach.
H. Survivorship. The rights and
obligations of the parties to this Agreement will survive
termination of Employee’s employment with the
Company.
I. Signatures. This Agreement may be
signed in two counterparts, each of which shall be deemed an
original, with the same force and effectiveness as though executed
in a single document.
Agreed
by the parties:
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By its
authorized signatory:
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Xxxxxxx Xxxxxx
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_________________________________
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/s/ Xxxxxxx
Xxxxxx
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Signature
_________________________________
Print
Name
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Signature
Xxxxxxx
Xxxxxx
Print
Name
|
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_________________________________
Title
_________________________________
Date
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09 / 03 /
2020
Date
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Exhibit A
SECTION 7 OF THE DEFEND TRADE SECRETS ACT OF 2016
“
.. . . An individual shall not be held criminally or civilly liable
under any Federal or State trade secret law for the disclosure of a
trade secret that—(A) is made—(i) in confidence to a
Federal, State, or local government official, either directly or
indirectly, or to an attorney; and (ii) solely for the purpose of
reporting or investigating a suspected violation of law; or (B) is
made in a complaint or other document filed in a lawsuit or other
proceeding, if such filing is made under seal. . . . An individual
who files a lawsuit for retaliation by an employer for reporting a
suspected violation of law may disclose the trade secret to the
attorney of the individual and use the trade secret information in
the court proceeding, if the individual—(A) files any
document containing the trade secret under seal; and (B) does not
disclose the trade secret, except pursuant to court
order.”
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