EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") dated and effective as of
August 23, 2005 (the "Effective Date") is entered into by and between InfoSearch
Media, Inc., a Delaware corporation, with its principal place of business
located at 0000 Xxx Xxx Xxxxxx, Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000 its affiliates,
subsidiaries, successors and assigns (the "Company") and Xxxxxx Xxxxxxx, an
individual residing at 000 Xxxxx Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
(the "Executive").
1. Employment Period. As of the Effective Date, the Company shall employ
the Executive, and the Executive agrees to be employed by Company in the
position of Chief Executive Officer in accordance with the terms and subject to
the conditions of this Agreement, commencing on the Effective Date and
terminating in accordance with the provisions of Section 11 below, in which case
the provisions of Section 11 shall control (the "Term"). The Executive also
agrees to serve as a member of the Company's Board of Directors in accordance
with the Company's By-laws.
The Executive affirms that, except as otherwise set forth herein, 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 Chief Executive Officer,
unless and until otherwise instructed by the Company, and shall also serve as a
member of the Company's Board of Directors (the "Board"). The Executive agrees
to devote his working time, as set forth in Section 4 hereof, utilizing his
skill, energy and best business efforts on behalf of the Company.
Notwithstanding anything to the contrary contained herein, upon written notice
to the Board, the Executive may hold officer and non-executive director
positions (or the equivalent position) in or at other entities not inconsistent
with the best interests of the Company so long as the Board has not provided
Executive written notice that it has determined that such activities will
materially interfere with his ability to perform his duties and responsibilities
hereunder. The Company acknowledges and agrees that the Executive may continue
to serve as an officer and director of MCS Ventures and Yoga Works, Inc., and
any of their respective affiliates, to the extent such obligations do not
materially interfere with Executives performance of his duties to the Company
hereunder.
3. No Conflicts. Except with respect to the companies disclosed in the
last sentence of Section 2 and to the extent that no actual or apparent conflict
of interest arises, 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 business
opportunity related to the business of the Company of which he becomes aware,
and that he will not, directly or indirectly, exploit any such opportunity for
his own account, nor will he render any services to any other person or
business, acquire any interest of any type in any other business or engage in
any activities that conflict with the Company's best interests or which is in
competition with the Company.
4. Days/Hours of Work and Work Week. The Executive shall normally work
four (4) days per week and his hours of work shall be appropriate to the nature
of the Executive's duties and responsibilities with the Company, it being
recognized that such duties and responsibilities require flexibility in the
Executive's work schedule.
5. Location. The locus of the Executive's employment with the Company
shall be the Company's office located at 0000 Xxx Xxx Xxxxxx, Xxxxxx Xxx Xxx,
Xxxxxxxxxx 00000. The Executive shall be required to spend the amount of time at
the Company's office located in Marinia Del Rey, California as is reasonably
necessary to effectively manage the operations of the Company.
6. 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 $150,000, less all applicable taxes and other appropriate deductions. In
addition, the Board shall review the Executive's base salary annually and shall
determine whether upward adjustment is appropriate given the Company's operating
performance over the relevant Term.
(b) Annual Bonus. During the Term of this Agreement, the Executive
shall be entitled to an annual bonus in an amount not to exceed $150,000 for
each calendar year (or pro-rata portion thereof in the case of a period of less
than twelve (12) months within the Board's sole discretion based on its review
of the operating performance of the Company during the fiscal year to which the
bonus pertains. Such review by the Board shall be based on an evaluation of the
Company's results of operations relative to the Company's achievement of certain
milestones established for the Company's operational performance and milestones
established for the Executive's performance that shall be agreed to by the
Executive and the Board within sixty (60) days of the date hereof. Each annual
bonus shall be paid by the Company to the Executive promptly after the first
meeting of the Board following the previous calendar year, but in no case later
than March 30th of each year.
7. Business Expenses. During the Term of this Agreement, the Executive
shall be entitled to payment or reimbursement of any and all reasonable expenses
paid or incurred by him in connection with and related to the performance of his
duties and responsibilities hereunder for the Company, including an automobile
allowance of $600 per month. 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 reasonably
require, evidencing that the Executive, in fact, incurred or paid said expenses.
8. Vacation. During the Term of this Agreement, the Executive shall be
entitled to accrue 20 vacation days, per year. The Executive shall be entitled
to carry over any accrued, unused vacation days from year to year without
limitation. Notwithstanding anything in the forgoing to the contrary, it is
agreed that the Executive shall be entitled to an additional vacation from
August 29 through September 2, 2005.
9. Restricted Stock Awards.
(a) Grant of Restricted Stock. Within thirty (30) days of the
Effective Date of this Agreement the Company shall grant to the Executive
675,000 shares of Restricted Stock under the Company's 2004 Stock Option Plan.
Provided that this Agreement has not been terminated by the Company for Cause
pursuant to Section 11(c)(i)(a) or by the Executive pursuant to Section 11(e)(i)
under circumstances where the Executive also resigns from the Board, the
aforementioned shares of Restricted Stock shall vest as follows:
(i) 225,000 shares of Restricted Stock on September 23, 2005;
(ii) 150,000 shares of Restricted Stock on February 23, 2006;
(iii) 150,000 shares on April 23, 2006; and
(iv) 150,000 shares August 23, 2006.
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(b) Taxes. The Company will permit the Executive to participate as a
selling stockholder in one or more contemplated financing transactions in order
to enable the Executive to satisfy his tax obligations incident to the
Restricted Stock award set forth above. In the event the Company is unable to
complete a financing transaction prior to the date the tax is due, then the
Company will pay to the Executive the amount required to satisfy the tax
liability; provided, however, that the Company's obligation to pay such amount
shall be conditioned on the Executive's timely filing of an 83(b) election
within 15 business days of the Effective Date.
10. 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 and at
substantially the same levels as the Company makes such opportunities available
to the Company's executive employees.
(b) Notwithstanding anything to the contrary in past practice of the
Company, the Company shall maintain in effect and good standing a directors and
officers liability insurance policy covering the Executive having a coverage
amount of not less than $5,000,000.
11. 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 to the Executive or his heirs, administrators or executors with
respect to compensation and benefits accruing thereafter, except for the
obligation to pay the Executor'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, including any carryover days. 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 hereinbelow, this Agreement and the Executive's
employment with the Company shall automatically terminate and the Company shall
have no further obligations to the Executive or his heirs, administrators or
executors with respect to compensation and benefits accruing thereafter, except
for the obligation to pay the Executor'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 Disability, including any carryover days. 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, in
the Board's discretion, based upon the medical opinions of two qualified
physicians specializing in the area or areas of the Executive's affliction, one
of whom shall be chosen by the Board and one of whom shall be chosen by the
Executive, prevents the performance by the Executive, with or without reasonable
accommodation, of his duties and responsibilities hereunder for a continuous
period of not less than six consecutive months.
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(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 mean: (a) the willful and
continued failure of the Executive to perform substantially his duties and
responsibilities for the Company (other than any such failure resulting from a
Disability) after a written demand by the Board for substantial performance is
delivered to the Executive by the Company, which specifically identifies the
manner in which the Board believes that the Executive has not substantially
performed his duties and responsibilities, which willful and continued failure
is not cured by the Executive within thirty (30) days of his receipt of said
written demand; (b) the conviction of, or plea of guilty or nolo contendere to a
felony; or (c) fraud, dishonesty, competition with the Company, unauthorized use
of any of the Company's or any subsidiary's trade secrets or confidential
information, or gross misconduct which is materially and demonstratively
injurious to the Company. Termination under sections 11(c)(i)(b) and 11(c)(i)(c)
above shall not be subject to cure.
(ii) Termination of the Executive for "Cause" pursuant to
Section 11(c)(i)(a) shall be made by delivery to the Executive of a copy of the
written demand referred to in Section 11(c)(i)(a), or pursuant to Sections
11(c)(i)(b) or (c) by delivery to the Executive of a written notice from the
Board, either of which shall specify the basis of such termination, the conduct
justifying such termination, and the particulars thereof and finding that in the
reasonable judgment of the Board, the conduct set forth in Sections 11(c)(i)(a),
11(c)(i)(b) or 11(c)(i)(c), as applicable, has occurred and that such occurrence
warrants the Executive's termination of employment. Upon receipt of such demand
or notice, the Executive, shall be entitled to appear before the Board for the
purpose of demonstrating that "Cause" for termination does not exist or that the
circumstances which may have constituted "Cause" have been cured in accordance
with the provisions of Section 11(c)(i). No termination shall be final until the
Board has reached a determination regarding "Cause" following such appearance.
(iii) 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, including any
carryover days. The Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
(d) "Good Reason."
(i) At any time during the Term of this Agreement, subject to
the conditions set forth in Section 11(d)(iii) 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, without the Executive's consent, of any of the following events: (a)
the assignment 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 Start Date;; or (b) a material breach of this Agreement by the Company. In
addition, a Change of Control (as defined in Section 11(d)(ii) herein below)
that results in the termination of the Executive's employment with the Company
or a material adverse change in Executives duties and responsibilities shall
also be deemed a termination by the Executive for Good Reason.
(ii) For purposes of this Agreement, "Change of Control" means
the Company's Board votes to approve: (a) any consolidation or merger of the
Company pursuant to which 50 percent or more of the outstanding voting
securities of the surviving or resulting company are not owned collectively by
the common share and warrant holders of the Company as of the Effective Date
(the "Current Control Group"); (b) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, 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 percent of the outstanding voting securities of such company
after any such transfer; (c) any person or persons (as such term is used in
Section 13(d) of the Exchange Act of 1934, as amended), other than the Current
Control Group, shall acquire or become the beneficial owner (within the meaning
of Rule 13d-3 under the Exchange Act) whether directly, indirectly, beneficially
or of record, of 50 percent or more of outstanding voting securities of the
Company; or (d) commencement by any entity, person, or group (including any
affiliate thereof, other than the Company) of a tender offer or exchange offer
where the offeree acquires more than fifty (50%) percent of the then outstanding
voting securities of the Company.
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(iii) The Executive shall be entitled to terminate this
Agreement and his employment with the Company for "Good Reason" provided that he
has delivered written notice to the Company of his intention to terminate this
Agreement and his employment with the Company for "Good Reason" within five (5)
business days after either (a) the date on which the Executive receives written
notice from the Company of the occurrence of any event included within the
meaning of "Good Reason" under Section 11(d)(i) hereof or (b) the date on which
the Executive obtains actual knowledge of the occurrence of any event included
within the meaning of "Good Reason" under Section 11(d)(i) hereof. Such notice,
if given by the Executive pursuant to Section 11(d)(iii)(b) hereof, shall
specify in reasonable detail the circumstances claimed to provide the basis for
such termination for "Good Reason." Notwithstanding the foregoing, the Executive
shall not be entitled to terminate this Agreement and his employment with the
Company if the Company has eliminated the circumstances constituting "Good
Reason" within 30 days of its receipt from the Executive of the written notice
described in this Section 11(d)(iii).
(iv) 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, including any carryover days; (b) the
Executive's full base salary for six (6) months; (c) the Executive's annual
bonuses that he would have been awarded during the same six (6) month period;
and (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, for a period of six (6) months (collectively subsection 11(d)(iv)(a),
11(d)(iv) (b), 11(d)(iv) (c) and 11(d)(iv) (d) are referred to as the "Continued
Benefits"). Payment of the Continued Benefits shall be paid to the Executive
within forty-five (45) days of 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. In addition to the Continued Benefits, any unvested shares of
Restricted Stock granted pursuant to Section 9(a) will automatically vest in the
event that the Executive terminates this Agreement and his employment with the
Company pursuant to this Section 11(d)(iv)
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(e) Without "Cause."
(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 "Cause" or without "Good Reason"
as these terms are defined hereinabove, by providing prior written notice of at
least forty-five (45) days to the Company. Upon termination by the Executive of
this Agreement and the Executive's employment with the Company pursuant to this
Section 11(e)(i), the Company shall have no further obligations to the Executive
or his heirs, administrators or executors with respect to compensation and
benefits thereafter, except for the obligation to pay the Executive (or,
following his death, to the Executive's heirs, administrators or executors) any
earned but unpaid base salary, pro rata annual bonus and unused vacation days
accrued through the Executive's last day of employment with the Company,
including any carryover days. 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," as that term is defined
in Section 11(c)(i) hereinabove by providing written notice to the Executive at
least forty-five (45) days prior to the termination date. 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): 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,
including any carryover days. In addition, so long as Executive has not and does
not violate the provisions of Sections 12, 13 and 14 of this Agreement, the
Company shall pay or provide to the Executive (a) the Executive's full base
salary for a period of six (6) months; (b) the Executive's annual bonuses that
he would have been awarded during the same six (6) month period; (c) 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, for a period of six (6) months (collectively subsection 11(e)(ii)(a),
11(e)(ii) (b), 11(e)(ii) (c) and 11(d)(iv) (d) are referred to as the "Continued
Benefits"). Payment of the Continued Benefits shall be paid to the Executive
within forty-five (45) days of 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. In addition to the Continued Benefits, any unvested shares of
Restricted Stock granted pursuant to Section 9(a) will automatically vest in the
event that the Company terminates this Agreement with the Executive pursuant to
this Section 11(e)(ii).
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12. Confidential Information.
(a) The Executive expressly acknowledges that, in the performance of
his duties and responsibilities with the Company, he has been exposed, 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 or customers ("Confidential Information"). The term "Confidential
Information" means, without limitation, information or material that has actual
or potential commercial value to the Company, its affiliates and/or its clients
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 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 the Confidential Information, whether or not prepared or
developed by the Executive. Confidential Information includes, without
limitation, 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, suppliers, employees, consultants, and/or
co-venturers of the Company, its affiliates or its clients or customers; (ii)
information submitted by customers, suppliers, employees, consultants and/or
co-venturers of the Company, its affiliates and/or its clients or customers;
(iii) information concerning the business of 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, 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) technical information concerning products and services of the
Company, its affiliates and/or its clients 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 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 or customers; (vi) 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, its affiliates and/or its clients or customers; (vii) any other
information disclosed to the Executive by, or which the Executive obtained under
a duty of confidence from, the Company, its affiliates and/or its clients or
customers; (viii) all other information concerning the Company not generally
known to the public which, if misused or disclosed, could reasonably be expected
to adversely affect the business of the Company, its affiliates and/or its
clients or customers.
(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.
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13. Ownership and Assignment of Inventions.
(a) The Executive acknowledges that, in connection with his duties
and responsibilities relating solely to his employment with the Company, he
and/or other employees of the Company working with him, without him or under his
supervision, may create, conceive of, make, prepare, work on or contribute to
the creation of, or may be asked by the Company or its affiliates to create,
conceive of, make, prepare, work on or contribute to the creation of, without
limitation, lists, business diaries, business address books (except for business
addresses and business address books not related to the Company), documentation,
ideas, concepts, inventions, designs, works of authorship, computer programs,
audio/visual works, developments, proposals, works for hire or other materials
("Inventions"). To the extent that any such Inventions relate to any actual or
reasonably anticipated business of the Company or any of its affiliates, or
falls within, is suggested by or results from any tasks assigned to the
Executive for or on behalf of the Company or any of its affiliates, the
Executive expressly acknowledges that all of his activities and efforts relating
to any Inventions, whether or not performed during his or the Company's regular
business hours, are within the scope of his employment with the Company and that
the Company owns all right, title and interest in and to all Inventions,
including, to the extent that they exist, all intellectual property rights
thereto, including, without limitation, copyrights, patents and trademarks in
and to all Inventions. The Executive also acknowledges and agrees that the
Company owns and is entitled to sole ownership of all rights and proceeds to all
Inventions.
(b) The Executive expressly acknowledges and agrees to assign to the
Company, and hereby assigns to the Company, all of the Executive's right, title
and interest in and to all Inventions, including, to the extent they exist, all
intellectual property rights thereto, including, without limitation, copyrights,
patents and trademarks in and to all Inventions.
(c) In connection with all Inventions, the Executive agrees to
disclose any Invention promptly to the Company and to no other person or entity.
The Executive further agrees to execute promptly, at the Company's request,
specific written assignments of the Executive's right, title and interest in any
Inventions, and do anything else reasonably necessary to enable the Company to
secure or obtain a copyright, patent, trademark or other form of protection in
or for any Invention in the United States or other countries.
(d) The Executive acknowledges that all rights, waivers, releases
and/or assignments granted in this Section 13 by the Executive are freely
assignable by the Company and are made for the benefit of the Company and its
Affiliates, subsidiaries, licensees, successors and assigns.
(e) Nothing contained in this Section 13 shall be construed to grant
the Company any interest in any intellectual property owned or controlled by MCS
Ventures or Yoga Works, Inc., or their respective affiliates, to the extent such
intellectual property (i) was conceived on or prior to the Effective Date, or
(ii) is not conceived or reduced to practice by the Executive in connection with
his duties and responsibilities relating solely to his employment with the
Company.
14. Non-Competition And Non-Solicitation.
(a) The Executive agrees and acknowledges that the Confidential
Information that the Executive has already received and will receive are
valuable to the Company, its affiliates and/or its clients or customers, and
that its protection and maintenance constitutes a legitimate business interest
of Company, its affiliates and/or its clients or customers 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"), 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. The
Executive also acknowledges that the business of the Company is providing search
engine marketing services, online media and web analytic software (the "Business
of the Company").
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(b) The Executive hereby agrees and covenants that he shall not,
directly or indirectly, in any capacity whatsoever, including, without
limitation, as an employee, employer, consultant, principal, partner,
shareholder, officer, director or 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 of two years
following the termination of this Agreement and the Executive's employment with
the Company for any reason, in the Geographic Boundary:
(i) Engage, own, manage, operate, control, be employed by,
consult for, participate in, or be connected in any manner with the ownership,
management, operation or control of any business in competition with the
Business of the Company;
(ii) Solicit, persuade or induce any Customer: to terminate,
reduce or refrain from renewing, extending, or entering into contractual or
other relationships with the Company or to become a customer of or enter into
any contractual or other relationship with any other individual, person or
entity for the purpose of purchasing competitive products or services; or
(iii) Recruit, hire, induce, contact, divert or solicit, or
attempt to recruit, induce, contact, divert or solicit, any employee of the
Company to leave the employment thereof, whether or not any such employee is
party to an employment agreement.
(c) The limitations set forth in Section 14(i) shall not be
construed to apply to the Executive's ownership or involvement with MCS Ventures
or Yoga Works, Inc., or their respective affiliates, to the extent such
ownership or involvement does not materially interfere with the Executives
duties and responsibilities to the Company.
15. Indemnification. The Company hereby covenants and agrees to indemnify
the Executive to the fullest extent permitted by law and to hold the Executive
harmless fully, completely, and absolutely against and in any respects to any
and all actions, suits, proceedings, claims, demands, judgments, costs, expenses
(including attorneys' fees), losses, and damages resulting from the Executive's
good faith performance of his job duties pursuant to this Agreement. The Company
also hereby agrees to cover the Executive under a directors' and officers'
liability insurance policy at all times, with such coverage no less favorable
than that given to other executive employees of the Company.
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16. Dispute Resolution. The Parties 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 and
the terms and conditions of the Executive's employment with the 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
the Los Angeles, California. The arbitration shall proceed in accordance with
the National Rules for the Resolution of Employment Disputes of the American
Arbitration Association ("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 Section of this Agreement
shall be governed and construed in accordance with the United States Federal
Arbitration Act, 9. U.S.C. ss.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, or Sections 1981
through 1988 of Title 42 of the United States Code, COBRA, , 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 Section 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.
Notwithstanding this agreement to arbitrate, the Parties agree that any
violation of Sections 12, 13 or 14 of this Agreement may be restrained by the
issuance of an injunction or other equitable relief by a court of competent
jurisdiction, in addition to other remedies provided by law or this Agreement.
In the event of any legal action or other proceeding arising out of or
related to or for the enforcement of this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys' fees, costs and expenses
incurred in that action or proceeding, including attorneys' fees, costs and
expenses incurred on appeal, if any, in addition to any other relief to which
such party may be entitled, from the non-prevailing party, but only to the
extent permitted by applicable law.
17. 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:
InfoSearch Media, Inc.
0000 Xxx Xxx Xxxxxx
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
If to the Executive:
Xxxxxx Xxxxxxx
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
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18. Miscellaneous.
(a) Telephones, stationery, postage, e-mail, the internet and other
resources made available to the Executive by the Company, are solely for the
furtherance of the Company's business.
(b) 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 that State's principles of conflicts of
law. The Executive hereby consents to jurisdiction in the courts of California.
(c) The Parties 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.
(d) 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 Sections 12, 13 and 14 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 Sections 12, 13 and 14 of this Agreement. The Parties agree that any
pursuit of equitable relief in respect of Sections 12, 13 and 14 of this
Agreement shall have no effect whatsoever regarding the continued viability and
enforceability of Section 16 of this Agreement.
(e) Any waiver or inaction by the Company or the Executive for any
breach of this Agreement shall not be deemed a waiver of any subsequent breach
of this Agreement.
(f) The Parties 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.
(g) 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.
This Agreement shall be enforceable by the Company and its parents, affiliates,
successors and assigns.
(h) 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 Parties.
(i) 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.
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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.
UNDERSTOOD, AGREED, AND ACCEPTED:
EXECUTIVE COMPANY
Xxxxxx Xxxxxxx: InfoSearch Media, Inc.
---------------------------------- By:
----------------------------------
Date: Name:
----------------------------- --------------------------------
Title:
-------------------------------
Date:
--------------------------------
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