EMPLOYMENT AGREEMENT
The
Employment Agreement (the “Agreement”)
is
made as of the 1st day of December, 2006 (the “Effective
Date”),
by
and between HandHeld Entertainment, Inc., a Delaware corporation (the
“Company”)
and
Xxxx Xxxxx (“Employee”),
an
individual residing in the State of Florida.
WHEREAS,
the Company has acquired the Business relating to Xxxxxxxxxx.xxx, which business
was previously managed by Employee; and
WHEREAS,
“Business”
shall
have the meaning set forth in the Asset Purchase Agreement executed by and
among
the Company, Employee and Aperio Technologies, Inc., a Florida corporation,
on
even date herewith (the “Purchase
Agreement”);
and
WHEREAS,
the Company needs an experienced employee to run the Business and the Company
wishes to engage Employee for such purpose;
NOW
THEREFORE, in consideration of the premises and the covenants contained herein,
the parties hereby agree as follows:
1. DUTIES
AND POSITION.
During
the term of the Agreement, Employee agrees to be employed full time by and
to
serve the Company as an employee of Dorks, LLC, a division and wholly-owned
subsidiary of the Company. The Company agrees to employ and retain Employee
in
such capacity and Employee accepts and agrees to such employment, subject to
the
general supervision, advice and direction of the manager of Dorks, LLC, who
is
currently Xxxx Xxxxx. Employee shall manage the Business, which shall include,
without limitation, updating the Xxxxxxxxxx.xxx website with media content,
maintaining link trades, answering user questions, and, in general, ensuring
that the Business is properly functioning.
2. TERMS
OF EMPLOYMENT.
2.1. Term
of Employment.
The
Agreement shall be effective as of the date first set forth above and shall
continue until November 30, 2007, unless sooner terminated pursuant to the
provisions set forth herein (the “Term”).
Place
of Performance.
Employee shall be based at 0000 XX Xxxxxxxxxxxx Xx., Xxxx Xx. Xxxxx, XX 00000
(“Place
of Employment”).
Under
no circumstances shall Employee be assigned to duties and responsibilities
that
would require Employee to move Employee’s principal place of residence to a
location more than twenty five (25) miles from Employee’s Place of
Employment.
3. SALARY,
BENEFITS AND BONUS COMPENSATION.
3.1. Salary.
As
payment for the services to be rendered by Employee as provided in Section
1 and
subject to the terms and conditions of Section 4, the Company agrees to pay
to
Employee a salary equal to $24,000.00 per year, payable in twenty-four equal
installments on the 15th
and the
last day of each month (as may be adjusted from time-to-time, the “Salary”).
Employee’s salary shall be reviewed by the Company’s Board of Directors in
accordance with Company policies, and Employee shall be eligible for increases
in salary and benefits as determined by the Company’s Board
of
Directors in its sole discretion. In no event shall Employee’s salary be reduced
below the Salary except with Employee’s consent which may be withheld in
Employee’s sole discretion.
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3.2. Bonuses.
Employee shall be eligible for bonuses in accordance with Company
policies
3.3. Employee
Benefits.
Employee shall be eligible to participate in all benefit plans generally
available to Employees of the Company including health, dental, life insurance,
stock and bonus compensation programs.
4. TERMINATION.
4.1. Definitions.
For
purposes of the Agreement, the following terms shall have the following
meanings:
(a) “Termination
For Cause”
shall
mean termination by the Company of Employee’s employment by the Company for
reasons of Employee’s conviction of, or plea of “guilty” or “no contest” to, a
felony involving moral turpitude, persistent dishonesty or fraud, persistent
willful breaches of the material terms of the Agreement, or habitual neglect
of
the duties which he is required to perform hereunder.
(b) “Termination
Other Than For Cause”
shall
mean termination by the Company of Employee’s employment by the Company other
than a Termination For Cause.
(c) “Voluntary
Termination”
shall
mean termination of Employee’s employment with the Company by action of Employee
(other than termination by reason of Employee’s disability or death as described
in Sections 4.3 and 4.4).
4.2. Termination
For Cause.
(a) Termination
For Cause may be effected by the Company at any time during the Term and shall
be effected by notice to Employee.
(b) Upon
Termination For Cause, Employee immediately shall be paid any accrued salary,
any bonus compensation to the extent earned, any vested deferred compensation
(other than pension plan or profit sharing plan benefits which will be paid
in
accordance with the applicable plan), any benefits under any plan of the Company
in which Employee is a participant to the full extent of Employee’s rights under
such plans, any accrued vacation pay and any appropriate business expenses
incurred by Employee in connection with Employee’s duties hereunder, all to the
date of termination, but Employee shall not be paid any other compensation
or
reimbursement of any kind, including without limitation, severance
compensation.
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4.3. Termination
by Reason of Disability.
(a) If,
during the Term, Employee is determined by an examining physician to have failed
to perform Employee’s duties under the Agreement on account of illness or
physical or mental incapacity, and such illness or incapacity continues for
a
consecutive period of more than four (4) months, or an aggregate of more than
six (6) months in a twelve (12) month period, the Company shall have the right
to terminate Employee’s employment hereunder by notice to Employee.
(b) Upon
a
termination by reason of disability, the Company shall pay to the Employee
any
accrued salary, any bonus compensation to the extent earned, any vested deferred
compensation (other than pension plan or profit sharing plan benefits which
will
be paid in accordance with the applicable plan), any benefits under any plans
of
the Company in which Employee is a participant to the full extent of Employee’s
rights under such plans, any accrued vacation pay and any appropriate business
expenses incurred by Employee in connection with Employee’s duties hereunder,
all to the date of termination, but no other compensation or reimbursement
of
any kind.
4.4. Death.
(a) In
the
event of Employee’s death during the Term, Employee’s employment shall be deemed
to terminate as of the last day of the month during which Employee’s death
occurs.
(b) Upon
termination by death, the Company shall pay to Employee’s estate any accrued
salary, any bonus compensation to the extent earned, any vested deferred
compensation (other than pension plan or profit sharing plan benefits which
will
be paid in accordance with the applicable plan), any accrued vacation pay and
any appropriate business expenses incurred by Employee in connection with
Employee’s duties hereunder, all to the date of termination, but no other
compensation or reimbursement of any kind.
4.5. Voluntary
Termination.
Employee may effect a Voluntary Termination of Employee’s employment at any time
upon written notice to the Company. The Company requests the courtesy of, and
Employee agrees to provide to the Company, a thirty (30) day notice. In the
event of a Voluntary Termination, the Company immediately shall pay any accrued
salary, any bonus compensation to the extent earned, any vested deferred
compensation (other than pension plan or profit sharing plan benefits which
will
be paid in accordance with the applicable plan), any benefits under any plans
of
the Company in which Employee is a participant to the full extent of Employee’s
rights under such plans, any accrued vacation pay and any appropriate business
expenses incurred by Employee in connection with their duties hereunder, all
to
the date of termination, but no other compensation or reimbursement of any
kind.
5. SEVERANCE
COMPENSATION.
Upon
a
Termination Other Than for Cause, Employee shall receive a severance fee equal
to two (2) months at Employee’s then-current Salary.
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6. PAID
TIME OFF. Employee
shall be eligible to accrue vacation and sick leave according to the Company’s
vacation and sick leave policies in effect from time-to-time applicable to
employees, generally. Employee is ineligible to accrue vacation and sick leave
benefits while Employee is absent without pay including, but not limited to,
unpaid leaves of absence. The purpose of vacation leave is, among other things,
to provide time for recreation and relaxation. The Company encourages all of
its
employees to take accrued vacation leave each year. Accordingly, the maximum
vacation and sick leave Employee will be permitted to accrue is based on time
of
service and once the maximum amount has been reached, no additional vacation
or
sick leave, respectively, will accrue until Employee has reduced the balance
of
unused leave to less than the maximum.
7. HOLIDAYS. Employee
shall be entitled to holidays with pay during each calendar year consistent
with
the holiday schedule applicable to management employees of the Company,
generally.
8. COMPLIANCE
WITH EMPLOYER’S RULES.
8.1 General. The
employment relationship between the parties shall be governed by the general
employment policies, procedures and rules of the Company, including (but not
limited to) those relating to the protection of confidential information and
assignment of inventions; provided, however, that when the terms of the
Agreement differ from or are in conflict with the Company’s general employment
policies or procedures, the Agreement shall control. Employee agrees to abide
by
all of the Company’s policies, procedures and rules in effect from time-to-time.
9. RETURN
OF PROPERTY. Upon
termination of Employee’s employment, Employee shall deliver all property
(including keys, records, notes, lists, data, memoranda, models, and equipment)
that is in the Employee’s possession or under the Employee’s control which is
the Company’s property or related to the Company’s business.
10. INDEMNIFICATION
OF EMPLOYEE.
The
Company shall indemnify Employee against any direct losses incurred by Employee
in the course of Employee’s duties to the fullest extent permissible under
applicable law.
11. MISCELLANEOUS.
11.1. Notice.
Every
notice or other communication required or contemplated by this Agreement by
either party shall be in writing and shall be delivered to the other party
at
the address set forth on the signature page below by: (i) personal delivery;
(ii) postage prepaid, return receipt requested, registered or certified mail;
(iii) internationally recognized express courier, such as Federal Express,
UPS
or DHL; or (iv) facsimile or email with a confirmation copy sent simultaneously
by postal mail. Either party may change its or his or her address for notice
from time-to-time by providing written notice in the manner set forth
above.
11.2. Attorney
Fees. In
the
event that any action, suit or other proceeding at law or in equity is brought
to enforce the provisions of the Agreement, or to obtain money damages for
the
breach thereof, and such action results in the award of a judgment for money
damages or in the granting of any injunction in favor of the Company, then
all
reasonable expenses, including, but not limited to, reasonable attorneys’ fees
and disbursements (including those incurred on appeal) of the Company in such
action, suit or other proceeding shall (on demand of the Company) forthwith
be
paid by Employee. If such action results in a judgment in favor of Employee,
then all reasonable expenses, including but not limited to, reasonable
attorney’s fees and disbursements (including those incurred on appeal) of
Employee in such action, suit or other proceeding shall (on demand of Employee)
forthwith be paid by the Company.
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11.3. Entire
Agreement. The Agreement,
including the policies and procedure referred to in Section 8 above, supersedes
all prior agreements, and the terms set forth herein represent the entire
understanding and agreement between the Company and Employee regarding
compensation, employment, status and position. It is further understood that
the
Company’s policies, procedures and rules may be amended or changed at any time
by the Company.
11.4. Amendment. The
Agreement may be modified or amended only if the amendment is made in writing
and is signed by both parties. The Agreement cannot be altered in any way by
any
oral statement(s) made by Employee or the Company.
11.5. Severability. If
any
provision(s) of the Agreement shall be held to be invalid or unenforceable
for
any reason, the remaining provisions shall continue to be valid and enforceable.
If a court finds that any provision(s) of the Agreement is invalid or
unenforceable, but that by limiting such provision it would become valid or
enforceable, then such provision shall be deemed to be written, construed,
and
enforced as so limited.
11.6. Waiver
Of Contractual Right. The
failure of either party to enforce any provision of the Agreement shall not
be
construed as a waiver or limitation of that party’s right subsequently to
enforce and compel strict compliance with every provision of the
Agreement.
11.7. Applicable
Law. The
Agreement shall be governed by the laws of the State of California.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
By:
/s/ Xxxx
Oscodar
Xxxx
Oscodar, President
000
Xxxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxxxxxxx, XX 00000
Fax:
(000) 000-0000
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EMPLOYEE
By:
/s/ Xxxx
Xxxxx
Xxxx
Xxxxx
0000
XX Xxxxxxxxxxxx Xx.
Xxxx
Xx. Xxxxx, XX 00000
Fax:
___________
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