EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into effective
as of the 16th day of November, 2000 by and between Xxxxxxxxxxxx, Inc., a Nevada
corporation (the "Company"), and Xxxxxx Xxxx (the "Employee").
PREMISES
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A. The Company desires to employ Employee and the Employee desires to
accept employment in with the Company.
B. The parties desire to enter into this Employment Agreement to
specify each party's rights and obligations under the employment relationship.
AGREEMENT
---------
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual covenants
contained herein and the mutual benefits to be derived hereunder, the parties
agree as follows:
1. Employment.
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The Company hereby employs Employee, and Employee accepts and agrees to
such employment, on the terms and conditions set forth in this Agreement.
2. Term.
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The term of this Agreement shall be for three (3) years and commence
effective as of November 16, 2000, and expire at midnight on November 16, 2003,
unless earlier terminated in accordance with the provisions of this Agreement.
3. Duties.
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Employee shall perform the duties assigned to Employee by the Company's
Chief Executive Officer or its Board of Directors (the "Board") from time to
time. Employee shall hold such offices and serve in such positions with the
Company and its subsidiaries as shall from time to time be requested by
Company's Chief Executive Officer or the Board. Employee shall not receive any
additional compensation for service as an officer of any subsidiaries of the
Company unless otherwise directed by the Board.
Employee shall devote substantially all of his working time and efforts
to the business of Company and its subsidiaries and shall not during the term of
this Agreement be engaged in any other substantial business activities which
will significantly interfere or conflict with the reasonable performance of his
duties hereunder, except where approved by the Company's Chief Executive Officer
or the Board. Employee may serve or continue to serve as a member of the board
of directors of any companies or organizations which, in the reasonable judgment
of the Company's Chief Executive Officer or the Board, will not present any
conflict of interest with the Company or any of its subsidiaries or materially
adversely affect the performance of Employee's duties under this Agreement.
4. Compensation.
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(a) Base Salary. For all services rendered by Employee,
Company shall pay to Employee a base salary of $125,000 per year
throughout the term of this Agreement, payable in arrears in two equal
monthly installments on or about the first and fifteenth day of each
calendar month. All salary payments shall be subject to withholding and
other applicable taxes. Employee's salary for any partial month at the
beginning or end of this Agreement shall be prorated. The rate of
salary may be increased (but not decreased) at any time as the Board
may determine, based on earnings, increased activities of the Company,
or such other factors as the Board may deem appropriate. The Board
shall review Employee's base salary on not less than an annual basis.
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(b) Participation in Stock Incentive Program. The Company
shall grant Employee 37,500 plan units under the Xxxxxxxxxxxx, Inc.
2000 Stock Incentive Program (the "Stock Incentive Program") pursuant
to which Employee will be awarded one share of the Company's common
stock for each fully vested plan unit, as more particularly described
in the Stock Incentive Program, a copy of which has been delivered to
Employee.
(c) Employee Benefits. The Company shall provide such health
and medical insurance for Employee in the form and program chosen by
the Company for its full-time employees commencing not later than
December 1, 2000. Employee shall be entitled to participate in any
other health, medical, retirement, pension, profit-sharing, disability,
death and dismemberment, life insurance, stock option, vacation and
other benefit plans and programs as in effect from time to time on the
same basis as other similarly situated employees of the Company.
(d) Vacation. Employee shall be entitled to paid vacation in
accordance with the most favorable plans, policies, programs and
practices of the Company and its affiliated companies with respect to
similarly situated employees of the Company. Employee shall initially
be entitled to two (2) weeks paid vacation per calendar year, after one
year of employment.
5. Reimbursement of Expenses.
--------------------------
Company will promptly reimburse Employee for expenses reasonably
incurred in connection with Company's business in accordance with the Company's
policies, including expenses for travel, lodging, meals, and other items on
Employee's periodic presentation of an expense report in the form approved by
the Company.
6. Working Facilities.
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Company shall provide to Employee offices and facilities appropriate to
Employee's position and suitable for the performance of Employee's duties.
7. Nondisclosure of Confidential Information.
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For purposes of this Agreement, the term "Confidential Information"
means information (i) disclosed to or known by Employee as a consequence of or
through his/her employment with the Company, (ii) not generally known outside
the Company, and (iii) which relates to the Company's business. Confidential
Information includes, but is not limited to, information of a technical nature,
such as methods and materials, trade secrets, inventions, processes, formulas,
systems, computer programs and studies, and information of a business nature
such as project plans, market information, costs, customer lists, and so forth.
Confidential Information does not include information that (i) is or becomes
generally available to the public other than as a result of a disclosure by
Employee in violation of this Agreement, or (ii) was in Employee's possession
prior to his introduction to the Company.
Recognizing that the Company is presently engaged, and may hereafter
continue to be engaged, in the research and development of processes and the
performance of services which involve experimental and inventive work, and that
the success of the Company's business may depend upon the protection of its
processes, products and services by patent, copyright or secrecy, and that
Employee has had, or during the course of his engagement may have, access to
Confidential Information, as herein defined, Employee agrees and acknowledges
that:
(a) The Company has exclusive right and title to all
Confidential Information and Employee hereby assigns all rights he
might otherwise possess in any Confidential Information to the Company.
Except as required in the performance of his duties to the Company,
Employee will not at any time during or after the term of his
employment or engagement by the Company, which term shall include any
time in which Employee may be retained by the Company as a consultant,
directly or indirectly use, communicate, disclose or disseminate any
Confidential Information.
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(b) All documents, records, notebooks, notes, memoranda and
similar repositories of, or containing Confidential Information or any
other information of a secret, proprietary, confidential or generally
undisclosed nature relating to the Company or its operations and
activities made or compiled by Employee at any time or made available
to him during the term of his employment or engagement by the Company,
including any and all copies thereof, shall be the property of the
Company, shall be held by him in trust solely for the benefit of the
Company, and shall be delivered to the Company by him on the
termination of his engagement or at any other time on the request of
the Company.
(c) Employee will not assert any rights under any inventions,
trademarks, copyrights, discoveries, concepts or ideas, or improvements
thereof, or know-how related thereto, as having been made or acquired
by him during the term of his employment or engagement if based on or
otherwise related to Confidential Information.
8. Assignment Of Inventions.
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(a) All discoveries, concepts, and ideas, whether or not
patentable or subject to copyright protection, including but not
limited to improvements, know-how, data, processes, methods, formulae,
and techniques, as well as improvements thereof, or know-how related
thereto, concerning any past, present or prospective activities of the
Company which Employee makes, discovers or conceives (whether or not
during the hours of his engagement or with the use of the Company's
facilities, materials or personnel), either solely or jointly with
others during his engagement by the Company or any affiliate and, if
based on or related to Confidential Information, at any time after
termination of such engagement (collectively, the "Inventions"), shall
be the sole property of the Company, and Employee agrees to perform the
provisions of this Section 8 with respect thereto without the payment
by the Company of any royalty or any consideration therefor other than
the regular compensation paid to Employee in his capacity as an
employee or consultant.
(b) Any written notebooks maintained by Employee with respect
to Inventions and studies or research projects undertaken on the
Company's behalf shall at all times be the property of the Company and
shall be surrendered to the Company upon termination of Employee's
engagement or, upon the request of the Company, at any time prior
thereto.
(c) Employee hereby assigns to the Company all of his rights
to Inventions.
(d) Employee shall sign, acknowledge and deliver promptly to
the Company, without charge to the Company, but at its expense, such
written instruments (including applications and assignments) and take
such other acts, such as giving testimony in support of Employee's
inventorship, as may be necessary in the reasonable opinion of the
Company to obtain, maintain, extend, reissue and enforce United States
and/or foreign letters patent and copyrights relating to Inventions
invented by Employee and to vest the entire right and title thereto in
the Company or its nominee. Employee acknowledges and agrees that any
copyright developed or conceived of by Employee during the term of his
employment, which is related to the business of the Company, shall be a
"work for hire" under the copyright law of the United States and other
applicable jurisdictions.
(e) Employee represents that his performance of all the terms
of this Agreement and as an employee of or consultant to the Company
does not and will not breach any trust or contract entered into prior
to his employment by the Company. Employee agrees not to enter into any
agreement either written or oral in conflict herewith and represents
and agrees that he has not brought and will not bring with him to the
Company or use in the performance of his responsibilities at the
Company any materials or documents of a former employer which are not
generally available to the public, unless he has obtained written
authorization from the former employer for their possession and use and
provided a copy of such authorization to the Company.
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(f) No provisions of this Paragraph shall be deemed to limit
the restrictions applicable to Employee under Sections 9 and 10.
9. Shop Rights.
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The Company shall also have the royalty-free right to use in its
business, and to make, use and sell products, processes and/or services derived
from any inventions, discoveries, concepts and ideas, whether or not patentable,
including but not limited to processes, methods, formulas and techniques, as
well as improvements thereof or know-how related thereto, which are not within
the scope of Inventions as defined above but which are conceived of or made by
Employee during the period he is employed or engaged by the Company or with the
use or assistance of the Company's facilities, materials, or personnel.
10. Non-Compete.
------------
Employee hereby agrees that during the term of this Agreement and for a
period of two years from the expiration or earlier termination thereof, Employee
will not:
(a) Own, manage, operate, or control any business that
provides video, audio, or other content to end users over telephone,
cable or similar lines, or by wireless transmission
("video-on-demand"), in any geographic market in which the Company or
any subsidiary thereof is then providing video-on-demand services, or
in any geographic market in which the Company has established plans to
provide video-on-demand services within six months from the date the
determination is being made. For purposes of this paragraph, ownership
of securities of not in excess of five percent (5%) of any class of
securities of a public company listed on the OTC Bulletin Board, a
national securities exchange, or on the National Association of
Securities Dealers Automated Quotation System (NASDAQ) shall not be
considered to be competition with the Company or any subsidiary
thereof;
(b) Provide services in the video-on-demand industry, directly
or indirectly, as an officer, director, executive, consultant,
employee, or agent of any company in any geographic market in which the
Company or any of its subsidiaries is then providing video-on-demand
services, or in any geographic market in which the Company has
established plans to provide video-on-demand services within six months
from the date the determination is being made. This paragraph shall not
be construed to prevent Employee from being employed by a subsidiary or
division of a large corporation which subsidiary or division does not
conduct business in the video services industry, even though another
subsidiary or division of that corporation may be engaged in the video
services industry, as long as proper steps are taken to insure that
Employee will have no involvement, input or oversight with respect to
the corporation's video-on-demand operations;
(c) Solicit any video-on-demand business from, or sell any
video-on-demand products or services to, any company that was within
one year prior to the date of termination of Employee's employment, a
customer, client or associate of the Company or any of its
subsidiaries; or
(d) Solicit the employment of any full-time employee employed
by the Company or its subsidiaries as of the date of termination of
this Agreement.
Provided, however, that this Section 10 shall be void and of no further
force or effect in the event this Agreement is terminated by the Company without
Cause or by Employee for Good Reason, as defined in Section 11 of this
Agreement.
11. Termination.
(a) Death. The Employee's employment shall terminate
automatically upon the Employee's death during the term of this
Agreement.
(b) Disability. If Employee is absent from his full-time
duties with the Company as a result of incapacity due to mental or
physical illness ("Disability") and such absence continues
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uninterrupted for a period of one (1) month, the base salary payable to
Employee under this Agreement shall be reduced by 50% until such time
as Employee resumes the performance of his full-time duties with the
Company or this Agreement is terminated. If Employee's Disability
continues for two (2) consecutive months, the Company may terminate
Employee's employment effective on the 30th day after receipt by
Employee of a notice to that effect (the "Disability Termination
Date"), unless Employee returns to the full-time performance of his
duties prior to the Disability Termination Date.
(c) Cause. The Company may terminate Employee's employment
during the term of this Agreement for Cause. For purposes of this
Agreement, "Cause" shall mean: (i) Employee being convicted of a
felony; (ii) a willful act of personal dishonesty taken by Employee in
connection with his responsibilities as an employee and intended to
result in substantial personal enrichment of Employee; (iii) the
willful and continued failure of the Employee to perform substantially
the Employee's duties with the Company or its affiliates (other than
any such failure resulting from Disability), after a written demand for
substantial performance is delivered to the Employee by the Board which
specifically identifies the manner in which the Board believes Employee
has not substantially performed Employee's duties and Employee has not
performed such duties within 30 days of such notice, or (iv) the
willful engaging by the Employee in illegal conduct or gross misconduct
which is materially and demonstrably injurious to the Company. For
purposes of this provision, no act or failure to act, on the part of
the Employee, shall be considered "willful" unless it is done, or
omitted to be done, by the Employee in bad faith or without reasonable
belief that the Employee's action or omission was in the best interests
of the Company. Any act, or failure to act, based upon authority given
by the Chief Executive Officer and or Board of Directors of the Company
or pursuant to a resolution duly adopted by the Board shall be
conclusively presumed to be done, or omitted to be done, by the
Employee in good faith and in the best interests of the Company.
(d) Good Reason. The Employee's employment may be voluntarily
terminated by Employee at any time within sixty (60) days after the
occurrence of an event constituting Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) the failure by the Company to comply with any of the
material terms of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad
faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Employee;
(ii) the relocation of Employee to any office or location more
than 35 miles from the location of the Company's offices at
the commencement of this Agreement; or
(iii) the occurrence of a Change in Control as defined in
Section 13 of this Agreement.
(e) Notice of Termination. Any termination by the Company for
Cause, or by the Employee for Good Reason, shall be communicated by
Notice of Termination to the other party hereto in accordance with
Section 17 of this Agreement. For purposes of this Agreement, a "Notice
of Termination" means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employee's employment
under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than
thirty days after the giving of such notice). The failure by the
Employee or the Company to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of Good Reason or
Cause shall not waive any right of the Employee or the Company,
respectively, or preclude the Employee or the Company, respectively,
from asserting such fact or circumstance in enforcing the Employee's or
the Company's rights hereunder.
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(f) Date of Termination. "Date of Termination" means (i) if
the Employee's employment is terminated by the Company for Cause, or by
the Employee for Good Reason, the date of receipt of the Notice of
Termination or any later date specified therein, as the case may be,
(ii) if the Employee's employment is terminated by the Company other
than for Cause or Disability, or by the Employee other than for Good
Reason, the Date of Termination shall be thirty (30) days after the
date on which the Company notifies the Employee, or the Employee
notifies the Company, of such termination and (iii) if the Employee's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Employee or the
Disability Termination Date, as applicable.
12. Obligations of the Company upon Termination.
--------------------------------------------
(a) Termination for Good Reason; Termination other Than for
Cause, Death or Disability. If, during the term of this Agreement, the
Company shall terminate the Employee's employment other than for Cause
or Disability or the Employee shall terminate employment for Good
Reason:
(i) The Company shall pay to the Employee in a lump sum in
cash within 30 days after the Date of Termination the
aggregate of the following amounts:
A. The sum of (aa) the Employee's Annual Base Salary
through the Date of Termination to the extent not
theretofore paid, (bb) reimbursement for any and all
monies advanced in connection with Employee's
employment through the Date of Termination, and (cc)
all other payments and benefits to which Employee may
be entitled under the terms of any benefit plan of
the Company through the Date of Termination
(collectively, the "Accrued Obligations"). Where
applicable, such payments shall be prorated based on
a 360 day year and the number of days elapsed during
the year in question.
B. For six (6) months after the Employee's Date of
Termination, the Company shall at its expense provide
health and medical insurance to Employee and his
family of the same type and scope as was provided
during the term of this Agreement.
C. To the extent not theretofore paid or provided,
the Company shall timely pay or provide to the
Employee any other amounts or benefits required to be
paid or provided or which the Employee is eligible to
receive under any plan, program, policy or practice
or contract or agreement of the Company and its
affiliated companies through the Date of Termination
(such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits").
(ii) All unvested plan units of Employee under the Stock
Incentive Program shall vest and the Company shall, within ten
(10) days following the Date of Termination deliver to
Employee the shares of the Company's common stock issuable
upon the conversion of such plan units.
(b) Death. If the Employee's employment is terminated by
reason of the Employee's death during the Employment Period, this
Agreement shall terminate without further obligations to the Employee's
legal representatives under this Agreement, other than for payment of
Accrued Obligations and the timely payment or provision of Other
Benefits. Accrued Obligations shall be paid to the Employee in a lump
sum in cash within 30 days of the Date of Termination and Other
Benefits shall be paid as soon as practicable in accordance with the
most favorable practices, policies and procedures followed by the
Company with respect to members of senior management. In addition, all
unvested plan units of Employee under the Stock Incentive Program shall
vest and the Company shall, within ten (10) days following the Date of
Termination deliver to Employee the shares of the Company's common
stock issuable upon the conversion of such plan units.
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(c) Disability. If the Employee's employment is terminated by
reason of the Employee's Disability during the term of this Agreement,
this Agreement shall terminate without further obligations to the
Employee, other than for payment of Accrued Obligations and the timely
payment or provision of Other Benefits. Accrued Obligations shall be
paid to the Employee in a lump sum in cash within 30 days of the Date
of Termination and Other Benefits shall be paid as soon as practicable
in accordance with the most favorable practices, policies and
procedures followed by the Company with respect to members of senior
management. In addition, all unvested plan units of Employee under the
Stock Incentive Program shall vest and the Company shall, within ten
(10) days following the Date of Termination deliver to Employee the
shares of the Company's common stock issuable upon the conversion of
such plan units.
(d) Cause; Other than for Good Reason. If the Employee's
employment shall be terminated for Cause during the term of this
Agreement, this Agreement shall terminate without further obligations
to the Employee other than for payment of Accrued Obligations and the
timely payment or provision of Other Benefits. If the Employee
voluntarily terminates employment during the Employment Period,
excluding a termination for Good Reason, this Agreement shall terminate
without further obligations to the Employee, other than for Accrued
Obligations and the timely payment or provision of Other Benefits. In
either event, all Accrued Obligations shall be paid to the Employee in
a lump sum in cash within 30 days of the Date of Termination and all
unvested plan units of Employee under the Stock Incentive Program shall
be forfeited.
13. Change of Control.
------------------
A Change of Control (as defined below), shall constitute Good Reason as
defined in Section 11(d) of this Agreement and shall entitle Employee to
voluntarily terminate this Agreement in the manner described in Section 11(d)
above and to receive the benefits provided in Section 12(a) above.
For purposes of this Agreement, "Change of Control" shall mean:
(i) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (a "Person") of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (aa) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock")
or (bb) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this
Agreement, the following acquisitions shall not constitute a
Change of Control: (aa) any acquisition directly from the
Company, (bb) any acquisition by the Company, (cc) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company or (dd) any acquisition by any
corporation pursuant to a transaction which complies with
clauses (aa), (bb) and (cc) of subsection (iii) below; or
(ii) (aa) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a
vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or
removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a
Person other than the Board or (bb) a majority of the members
of the Board ceases to be comprised of Directors whose most
recent election to the Board was approved by at least a
majority of the Incumbent Board prior to such election; or
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(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a "Business
Combination"), in each case, unless, following such Business
Combination, (aa) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more
than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the
corporation resulting from such Business Combination
(including, without limitation, a corporation which as a
result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Company Common Stock
and Outstanding Company Voting Securities, as the case may be,
(bb) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related
trust) of the Company or such corporation resulting from such
Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to
the extent that such ownership existed prior to the Business
Combination and (cc) at least a majority of the members of the
board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination;
or
(iv) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
14. Nontransferability.
-------------------
Neither Employee, Employee's spouse, Employee's designated contingent
beneficiary, nor their estates shall have any right to anticipate, encumber, or
dispose of any payment due under this Agreement. Such payments and other rights
are expressly declared nonassignable and nontransferable except as specifically
provided herein.
15. Indemnification.
----------------
Company shall indemnify Employee and hold Employee harmless from
liability for acts or decisions made by Employee while performing services for
Company to the greatest extent permitted by the Nevada Revised Statutes and
shall advance funds to Employee for the defense of any action, suit or
proceeding prior to the conclusion thereof to the maximum extent permitted by
the Nevada Revised Statutes.
16. Assignment.
-----------
This Agreement may not be assigned by either party without the prior
written consent of the other party.
17. Notice. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally
delivered, if sent by facsimile or telecopy transmission or
other electronic communication confirmed by registered or
certified mail, postage prepaid, or if sent by prepaid
overnight courier addressed as follows:
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If to Employee, to: Xxxxxx Xxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
If to the Company, to: Xxxxxxxxxxxx, Inc.
Attn: Chief Executive Officer
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxx 00000
18. Entire Agreement.
------------------
This Agreement is and shall be considered to be the only agreement or
understanding between the parties hereto with respect to the employment of
Employee by Company. All negotiations, commitments, and understandings
acceptable to both parties have been incorporated herein. No letter, telegram,
or communication passing between the parties hereto covering any matter during
this contract period, or any plans or periods thereafter, shall be deemed a part
of this Agreement; nor shall it have the effect of modifying or adding to this
Agreement unless it is distinctly stated in such letter, telegram, or
communication that it is to constitute a part of this Agreement and is attached
as an amendment to this Agreement and is signed by the parties to this
Agreement.
19. Enforcement.
------------
Each of the parties to this Agreement shall be entitled to any remedies
available in equity or by statute with respect to the breach of the terms of
this Agreement by the other party. Employee hereby specifically acknowledges and
agrees that a breach of the agreements, covenants and conditions contained in
Sections 7, 8, 9 and 10 of this Agreement may cause irreparable harm and damage
to the Company, that the remedy at law, for the breach or threatened breach of
such provisions of this Agreement may be inadequate, and that, in addition to
all other remedies available to the Company for such breach or threatened breach
(including, without limitation, the right to recover damages), the Company shall
be entitled to injunctive relief for any breach or threatened breach of such
sections of this Agreement.
20. Governing Law.
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This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Utah.
21. Severability.
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If and to the extent that any court of competent jurisdiction holds any
provision or any part thereof of this Agreement to be invalid or unenforceable,
such holding shall in no way affect the validity of the remainder of this
Agreement. Upon a determination that any term or other provision is invalid,
illegal or incapable of being enforced, the Parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the maximum extent possible.
22. Waiver.
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No failure by any party to insist upon the strict performance of any
covenant, duty, agreement, or condition of this Agreement or to exercise any
right or remedy consequent upon a breach hereof shall constitute a waiver of any
such breach or of any covenant, agreement, term, or condition.
23. Litigation Expenses.
--------------------
In the event that it shall be necessary or desirable for the Employee
or Company to retain legal counsel and/or incur other costs and expenses in
connection with the enforcement of any or all of the provisions of this
Agreement, the prevailing party shall be entitled to recover from the other
party reasonable attorneys' fees, costs, and expenses incurred by the prevailing
party in connection with the enforcement of this Agreement. Notwithstanding the
foregoing, in the event that following a Change of Control Employee engages
legal counsel to enforce Employee's rights or seek a determination under this
Agreement, the Company shall pay the expenses of such legal counsel regardless
of the outcome of any legal proceeding resulting therefrom.
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24. Survivability.
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The provisions of sections 7, 8, 9, 10, 12, and 13 shall survive
termination of this Agreement.
AGREED AND ENTERED INTO effective as of the date first above written.
Company:
Xxxxxxxxxxxx, Inc.
By_______________________________
Duly Authorized Officer
Employee:
_________________________________
(Signature)
_________________________________
(Print Name)
_________________________________
SS#
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Letter of Amendment
This letter will serve as an amendment to that certain document
entitled "Employment Agreement" between Xxxxxxxxxxxx, Inc., having changed its
name to Videolocity, Inc. ("Employer") and Xxxxxx X. Xxxx, ("Employee") dated
the 16th day of November, 2000.
Wherein it is the desire of the Employer and the Employee to amend
Paragraph 4.(a) Compensation of that certain "Employment Agreement", only, as
follows:
4. Compensation
(a) Base Salary. For all services rendered by Employee,
Company shall pay to Employee a base salary of $137,000.00
per year throughout the term of this Agreement, payable in
arrears in two equal monthly installments on or about the
first and sixteenth day of each calendar month. All salary
payments shall be subject to withholding and other
applicable taxes. Employee's salary for any partial month
at the beginning or end of this Agreement shall be
prorated. The rate of salary may be increased (but not
decreased) at any time as the Board may determine, based
on earnings, increased activities of the Company, or such
other factors as the Board may deem appropriate. The Board
shall review Employee's base salary on not less than an
annual basis.
Whereas all other terms and conditions in that certain aforementioned
"Employment Agreement" as written and as executed on November 16, 2000
remain unchanged.
This Letter of Amendment executed as of the 1st day of October, 2001,
the effective date of this Amendment.
Employer: Employee:
By:____________________________ ___________________________
Videolocity, Inc. Xxxxxx X. Xxxx
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