Ronald Daw Email address Re: Offer of Position with The Chosen, LLC Dear Ronald,
Exhibit (6)(l)
Xxxxxx
Xxx
Re:
Offer of Position with The Chosen, LLC
Dear
Xxxxxx,
It is
our pleasure to offer you the position of Director of Finance with
The Chosen, LLC on the terms set forth herein. Should you accept
the position on these terms please execute this letter agreement
(this “Agreement”) as indicated
below and return a copy to us for our records. We very much look
forward to working with you.
The
terms of your contract will be as follows:
1.
Services. Xxxxxx Xxx will serve
as the Director of Finance (the “Director”) for the
Chosen, LLC (the “Company”) as an
independent contractor providing services to the Company,
including, but not limited to the following (collectively, the
“Services”):
●
Monitoring business
performance and cash flow;
●
Overseeing the
Company's budget;
●
Work with the
Company's officers and directors to oversee and manage the
accounting and financial control functions of the
Company;
●
Establish a
financial strategy for the Company; and
●
Support and develop
strategies to guide the Company' s business
initiatives.
The
Director shall perform the Services in a timely, professional, and
workmanlike manner in accordance with specifications from the
Company.
2.
Relationship of the Parties.
This Agreement is for the performance of the Services by the
Director. The Director will perform these Services as an
independent contractor and is not an employee of the Company. This
Agreement does not create a joint venture, partnership, or agency
relationship between the parties, nor does it establish a business
relationship between the parties. Director shall supply all
equipment, materials and supplies, not otherwise provided by the
Company.
3.
Term. The term of the provision
of Services under this Agreement will commence on the date
that:
1 this
Agreement has been duly executed and delivered by the parties
hereto; (2) the Confidentiality and Non-Solicitation Agreement
attached hereto as Exhibit
A has been duly executed and delivered by the parties
thereto; and (3) Director has delivered written evidence to the
Company that Director is no longer an associated person of a
registered broker-dealer. Such date is referred to herein as the
“Effective
Date.” The initial term of this Agreement shall
commence on the Effective Date and continue until the date twelve
months after the Effective Date (the “Initial Term”), unless
the Agreement is terminated sooner in accordance with Section 4
below; provided that, at the expiration of the Initial Term and
each month thereafter, the Agreement shall be deemed to be
automatically extended, upon the same terms and conditions, except
as set forth herein, for successive periods of one month (each, a
“Renewal
Term”, and together with the Initial Term, the
“Term”).
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4.
Termination. The relationship
between the parties is subject to termination at any time, with or
without cause, by either party as set forth below. The date of
termination of this Agreement is referred to as the
“Termination
Date.”
(a)
Termination By the Company Without
Cause. The Company may terminate this Agreement at any time
without Cause (as defined below). Upon termination of this
Agreement by the Company without Cause, Director shall be entitled
to receive all of Director's accrued and unpaid Base Salary (as
defined in Section 5) through the Termination Date. If Director is
terminated without Cause prior to expiration of the Initial Term of
this Agreement, Director shall be entitled to receive (i) all of
Director's accrued and unpaid Base Salary through the Termination
Date and (ii) a termination fee in an amount equal to the balance
of the Base Salary payments remaining under this Agreement for the
Initial Term (the “Termination Fee”), so
that the total of the Base Salary and Termination Fee paid to
Director pursuant to this Agreement equals $100,000 in the
aggregate. "Cause" shall include: (i) Director's conviction of, or
plea of guilty or nolo contendere to, a felony, any crime of moral
turpitude or any crime involving the Company;
(ii) Director's
gross negligence or willful misconduct in the performance of his
duties;
(iii) Director's
breach of trust or breach of fiduciary duty in the performance of
the duties or responsibilities of Director's position as Director
of Finance or (iv) Director's breach of any material term or
provision of this Agreement or the Confidentiality
Agreement.
(b)
Termination By the Company for
Cause. The Company may terminate this Agreement at any time
for Cause upon written notice to Director, in which event all
payments under this Agreement shall cease, except for all of
Director's accrued and unpaid Base Salary through the Termination
Date.
(c)
Termination By Director. The
Director may terminate this Agreement of his own volition at any
time. Upon any voluntary termination, the Director shall be
entitled to receive all of Director's accrued and unpaid Base
Salary through the Termination Date.
5.
Compensation.
Taxes, and Reimbursement of Expenses.
(a)
Base Compensation. The Company
shall pay the Director a salary of $100,000 per year, payable in
monthly installments of $8,333 during the Term (the
“Base
Salary”), unless this Agreement is terminated sooner
in accordance with Section 4 above.
(b)
Equity Grant. In addition, the
Director is granted four percent (4.0%) of the membership interests
in The Chosen Productions, LLC, upon the effective date of this
agreement, which will vest upon the initial distribution of Season
1 of The
Chosen television series by VidAngel, Inc.
(c)
Tax Obligations.
Director acknowledges and agrees that Director is a self-employed
independent contractor, and, as such, he is solely responsible for
income taxes associated with payments received for the provision of
the Services.
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(d)
Expenses. The Company shall not
be liable to Director for any expenses paid or incurred by the
Director unless such expenses are pre-approved in writing by the
Company.
6.
Choice of Law. All issues and
questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by, and
construed in accordance with, the laws of the State of Utah,
without giving effect to any choice-of-law or conflict-of-law rules
or provisions (whether of the State of Utah or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Utah.
7.
Consent to
Jurisdiction. The
parties to this Agreement hereby agree and consent that any and all
causes of action arising under this Agreement shall only have
jurisdiction and venue in the state and federal courts located in
the State of Utah. Each of the parties consents to the jurisdiction
and venue provisions stated above for the resolution of all causes
of action arising under this Agreement.
If the foregoing is acceptable to you,
please date and sign a copy of this letter and return it to the
undersigned. We believe you will help us improve and enhance our
current capabilities and we look forward to having you join our
team.
Kind
Regards,
The
Chosen, LLC, a Utah limited liability company
/s/ Xxxxxx
Xxxx
Xxxxxx
Xxxx
Chief
Executive Officer
SEEN AND AGREED TO:
The
Chosen Productions, LLC a Utah
Limited
liability company
/s/ Xxxxxx
Xxxx
Xxxxxx
Xxxx
Manager
/s/ Xxxxxx
Xxx
Xxxxxx
Xxx
Date:
05/22/2018
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EXHIBIT A
The
Chosen, LLC, a Utah limited liability company (the
“Company”), and Xxxxxx Xxxx (“Xxxx”) intend
to enter into a service agreement whereby Shaw will serve as the
Company’s Director of Finance. The acceptance of, and
Xxxx’x agreement to be bound by, this CONFIDENTIALITY AND
NON-SOLICITATION AGREEMENT (the “Agreement”) is a
required precondition to Xxxx’x acceptance of the
Company’s letter agreement for the offer of a position as the
Company’s Director of Finance.
WHEREAS, during the
term of his engagement as the Company’s Director of Finance,
Shaw will have access to, and be provided with, confidential and
proprietary information belonging to the Company.
WHEREAS, it is
vital that the Company maintain control of its confidential and
proprietary information in order to protect its confidential
information, trade secrets and competitive advantage in the
marketplace.
NOW,
THEREFORE, the Company and Shaw hereby agree as
follows:
1.
Term;
Survival of Obligations.
a.
Effective Date. This Agreement
shall commence on the date the Company’s letter agreement to
Shaw (the “Service Agreement”) is accepted by Shaw and
shall continue until terminated by, or with the written consent of,
the Company.
b.
Term of Non-Solicitation
Obligations. Xxxx’x non-solicitation obligations, as
specified in Section 4 of
this Agreement, shall continue for a period of two (2) years
following the termination of the Service Agreement.
c.
Term of Confidentiality and
Non-Disclosure Obligations. Xxxx’x contractual duties
of confidentiality and non-disclosure, as specified in Section 3 of this Agreement, that
relate to the Company’s trade secrets shall remain in effect
as long as the information remains non-public. For all other
Confidential Information, as defined in Section 2 of this Agreement,
Xxxx’x contractual duties of confidentiality and
non-disclosure shall remain in effect for a period of five (5)
years following the termination of the Service
Agreement.
2.
Confidential
Information.
a.
Definition. For the purposes of this
Agreement, “Confidential Information” means any
and all proprietary information, trade secrets, private or
privileged information, including, without limitation, the
Company’s materials related to the production of The Chosen series, and the strategies,
costs, pricing, financial data, plans and proposals, data and
information of and about the Company, its customers, or its
investors that is received or learned by Shaw during the course of
communications or work with the Company.
b.
Exceptions. Any
information which becomes public knowledge shall not be considered
Confidential Information, so long as the disclosure of such
information was not attributable directly or indirectly to any
action or inaction of Shaw.
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3.
Confidentiality
and Non-Disclosure.
a.
Confidentiality. Shaw
acknowledges that any and all Confidential Information provided to
Shaw by the Company during the term of his engagement by the
Company is, and shall remain, the property of the Company. Shaw
agrees to hold the Confidential Information in the strictest
confidence, and not to disclose the Confidential Information to any
third party.
b.
Non-Use. Shaw agrees not to use the Confidential Information for
any purpose other than to provide the Services, as defined in the
Service Agreement, to the Company, without express written
authorization by the Company.
c.
Return of Confidential Information. Upon request, and without need
for request, at the termination of the Service Agreement, Shaw will
provide the Company with full and complete copies of any and all
files and other digital assets for all work created by Shaw,
whether or not completed or previously delivered to the Company.
Upon termination of the Service Agreement, Shaw shall return all
Confidential Information to the Company and destroy any additional
copies, whether in printed or electronic form, which are not
returned.
d.
Exception to Confidentiality and Non-Disclosure. Pursuant to the
Defend of Trade Secrets Act of 2016, Shaw shall not be liable for
the disclosure of Confidential Information if the disclosure is
made in confidence to a Federal, State, or local government
official, either directly or indirectly, or to an attorney, solely
for the purpose of reporting or investigating a suspected violation
of law, or if such disclosure is made in a complaint or other
document filed in a lawsuit or other proceeding, provided such
filing is made under seal.
4.
Non-Solicitation. Shaw agrees that for
a period of two (2) years following termination of the Service
Agreement, whether such termination is affected by Shaw or the
Company, with or without cause, Shaw shall not, directly or
indirectly, as an owner, partner, officer, director, member,
manager, employee, agent, representative, consultant or as an
independent contractor either:
a.
solicit business
from, or otherwise seek to do business with, any person or entity
who paid or engaged the Company during the two (2) years preceding
the termination of the Service Agreement in order to perform
services of any type that the Company can render and has
rendered;
b.
solicit or
otherwise induce any of the Company’s employees to terminate
their employment with the Company in order to perform similar
services for any other business that competes with the services
offered by the Company in any area where that employee provides
services to the Company and its clients, or in any area where the
employee may reasonably expect to be dispatched by the Company to
perform services on its behalf.
5.
Restrictive Covenants of the Essence.
The restrictive covenants herein are of the essence of this
Agreement; they shall be construed as independent of any other
provision in this Agreement or the terms of the Service Agreement.
The existence of any claim or cause of action by Shaw against the
Company, whether predicated on this Agreement or not, shall not
constitute a defense to the enforcement by the Company of the
restrictive covenants contained herein. The Company shall at all
times maintain the right to seek enforcement of these provisions
whether or not the Company has previously refrained from seeking
enforcement of any such provision as to Shaw or any other
individual who has signed an agreement with similar
provisions.
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6.
Rights and Remedies upon Breach. If
Shaw commits a breach of, or threatens to commit a breach of the
restrictive covenants herein, the Company shall have the following
rights and remedies, each of which shall be independent of the
other and severally enforceable, and all of which shall be in
addition to, and not in lieu of, any other rights and remedies
available to the Company under law or in equity:
a.
Equitable Relief. Shaw
recognizes and agrees that any violation of the restrictive
covenants herein may not be reasonably or adequately compensated by
damages. Therefore, in addition to any other relief to which the
Company may be entitled by reason of such violation, the Company
shall also be entitled to permanent and temporary injunctive and
equitable relief, and, pending determination of any dispute with
respect to such violation, no bond or security shall be required in
connection therewith.
b.
Accounting. The Company
shall have the right and remedy to require Shaw to account for and
pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits derived or received by Shaw
as a result of any transactions constituting a breach of the
restrictive covenants herein, and Shaw shall account for and pay
over all such benefits to the Company upon demand by the Company
therefore.
7.
Severability. The provisions of this
Agreement shall be severable and the failure of any court to
enforce any clause, paragraph or provision of this Agreement shall
not adversely affect the validity or enforceability of any other
clause or provision.
8.
Governing Law. This Agreement shall be
construed according to the laws of the State of Utah, exclusive of
its conflicts of law provisions.
9.
Venue; Jurisdiction. The parties agree
that all actions or proceedings seeking the interpretation and/or
the enforcement of this Agreement shall be brought only in state
and federal courts located in Provo, Utah, and both parties hereby
submit themselves exclusively to the jurisdiction of such courts
for such purpose.
10.
Representation. Each signatory to this
Agreement represents and warrants that he has entered into this
Agreement knowingly, voluntarily and intentionally, and that he has
been represented by (or had an opportunity to be represented by)
legal counsel during the negotiation and consummation of this
Agreement.
11.
Headings; Terms. Section headings
contained in this Agreement are included for convenience only and
form no part of the agreement between the parties. The use of the
singular shall include the plural and vice versa and the use of any
gender shall include all genders.
12.
Assignment; Successors and Assigns.
Subject to the restrictions on assignment herein, this Agreement
shall be binding upon and inure to the benefit of the successors
and assigns of the Company.
13.
Waiver. Any forbearance or delay in
exercising any right hereunder or the failure to exercise such
right shall not constitute a waiver. Any covenant, duty, obligation
or undertaking required by the terms of this Agreement shall only
be waived by the express written consent of the party granting such
waiver. A waiver granted on one occasion shall not be construed to
constitute a waiver on any subsequent occasion.
14.
Amendment. No amendment or modification
of this Agreement shall be effective unless set forth in writing
and signed by the party to be bound thereby.
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the
dates set forth below, respectively.
THE CHOSEN, LLC, a Utah limited
liability
company
By:
________________________
Name:
Xxxxxx Xxxx
Title:
Chief Operating Officer
Date:
_______________________
XXXXXX XXXX
By:
______________________
Date:
______________________
[Signature page to the CONFIDENTIALITY AND NON-SOLICITATION
AGREEMENT]
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