EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
September 30, 2005 (the "Effective Date") by and between Digicorp, a Utah
corporation, with an office located at 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx
Xxxxxx, XX 00000 (the "Company") and Xxx Xxxxxx, an individual with an address
c/o Rebel Crew Films, Inc., 0000 Xxxxxxx Xxxxxx, Xxxxxx Xxx Xxx, XX 00000
("Xxxxxx").
WHEREAS, the Company has entered into an agreement to acquire Rebel Crew
Films Inc. (the "Rebel Acquisition"); and
WHEREAS, the Company desires to retain the services of Xxxxxx as the
Company's Chief Executive Officer and, in the event that the Rebel Acquisition
is consummated, Xxxxxx is willing to be employed by the Company in such
capacity.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. Employment. Upon the Effective Date of this Agreement, Xxxxxx will
become the interim President of the Company, subject to termination of the Rebel
Acquisition. Upon consummation of the Rebel Acquisition, Xxxxxx will serve the
Company as its Chief Executive Officer and Xxxxxx does hereby accept, and Xxxxxx
hereby agrees to such engagement and employment as the Company's Chief Executive
Officer. In addition, Xxxxxx shall be elected to the Company's Board of
Directors upon consummation of the Rebel Acquisition and, during the "Employment
Term" (as defined below), shall also serve as the Chairman of the Board of
Directors of the Company.
2. Duties. Xxxxxx shall be responsible for the overall development,
operations and corporate governance of the Company. In addition, Xxxxxx'x duties
shall be such duties and responsibilities as the Company shall specify from time
to time, but only if and to the extent that such duties and responsibilities are
those customarily performed by the Chief Executive Officer of a company with a
business commensurate with that of the Company. Xxxxxx shall have such
authority, discretion, power and responsibility, and shall be entitled to
office, secretarial and other facilities and conditions of employment, as are
customary or appropriate to his position. Xxxxxx shall diligently and faithfully
execute and perform such duties and responsibilities, subject to the general
supervision and control of the Company's Board of Directors. Xxxxxx shall be
responsible and report to the Company's Board of Directors. Xxxxxx shall devote
such amount of his time, attention, energy, and skill during normal business
hours to the business and affairs of the Company as he may deem reasonably
necessary to fulfill his responsibilities hereunder.
Nothing in this Agreement shall preclude Xxxxxx from devoting reasonable periods
required for:
(a) serving as a director or member of a committee of any
organization or corporation involving no conflict of interest with the interests
of the Company;
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(b) serving as a consultant in his area of expertise (in areas other
than in connection with the business of the Company), to government, industrial,
business and academic panels where it does not conflict with the interests of
the Company; and
(c) managing his personal or family investments or engaging in any
other non-competing business; provided that such activities do not materially
interfere with the regular performance of his duties and responsibilities under
this Agreement.
3. Efforts of Xxxxxx. During his employment and while performing his
services hereunder, Xxxxxx shall, subject to the direction and supervision of
the Company's Board of Directors, use his business judgment, skill and knowledge
to advance the Company's interests and to discharge his duties and
responsibilities hereunder. Notwithstanding the foregoing, nothing herein shall
be construed as preventing Xxxxxx from investing his assets in any business.
4. Employment Term. The term of this Agreement shall commence as of the
Effective Date and shall, unless terminated pursuant to Section 12 of this
Agreement, and continue for a term of three (3) years (the "Initial Term"), and
shall be automatically renewed for successive one (1) year terms (a "Renewal
Term") unless a party hereto delivers to the other party written notice of such
party's intention not to renew at least thirty (30) days prior to the end of the
Initial Term or the applicable Renewal Term, as the case may be. The terms
"Initial Term" and "Renewal Term" are collectively referred to herein as the
"Employment Term."
5. Compensation of Xxxxxx.
(a) Compensation. As compensation for the services provided by
Xxxxxx under this Agreement, the Company shall pay Xxxxxx a base salary of One
Hundred Fifty Thousand Dollars ($150,000) for the initial year of the Employment
Term (the "Initial Salary"). The parties acknowledge and agree that the Initial
Salary does not represent a market salary for an executive of Xxxxxx'x
experience and is based upon the Company's early stage. The Company agrees that
Xxxxxx'x salary for subsequent periods should take into consideration the
Company's growth and the market compensation for executives of Xxxxxx'x caliber,
including compensation and benefits such as life insurance. Irrespective of the
Company's growth, Xxxxxx'x base salary shall increase at least 10% in the second
year of the Employment Term and at least 10% more for the third year of the
Employment Term. The compensation of Xxxxxx under this Section shall be paid in
accordance with the Company's usual payroll procedures.
(b) Stock Options. As a signing bonus, the Company has granted
Xxxxxx options from the Company's existing Stock Option and Restricted Stock
Plan to purchase 4,400,000 shares of the Company's common stock with an exercise
price of $0.85 per share (the fair market value on the grant date), which stock
options shall vest annually in equal portions over a period of three (3) years
from the Effective Date and shall expire five years after the Effective Date.
Xxxxxx acknowledges that such stock options were granted to him by the Company's
Board of Directors on September 30, 2005. Xxxxxx shall also be eligible to
receive shares of the Company's authorized stock and options to purchase shares
of the Company's authorized stock from time to time as determined by the Board
of Directors. Notwithstanding the three (3) year term vesting of said options,
all of the options shall immediately vest on an accelerated basis, and remain
exercisable for a period of five (5) years from the Effective Date on the first
to occur of any of the following: (i) any "change of control" of the Company or
its business including, without limitation, if Xxxxxx ceases to own a majority
of the Company's voting securities, (ii) if the employment of Xxxxxx is
terminated by the Company without "Cause" (as defined below) or by Xxxxxx with
"Good Reason" (as defined below), or (iii) if the employment of Xxxxxx is
terminated upon the death or disability of Xxxxxx. In addition, the Company
hereby agrees to register its existing Stock Option and Restricted Stock Plan on
a Form S-8 registration statement as soon as the Company is eligible to use such
form so Xxxxxx may, subject to Rule 144 under the Securities Act of 1933, as
amended, exercise the above options and freely sell the shares of common stock
obtained thereby in the public market.
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(c) Bonus. In addition to the compensation under Sections 5(a) and
5(b) hereof, Xxxxxx shall be eligible to receive an annual bonus determined by
the Board of Directors based on the performance of the Company.
6. Benefits. Xxxxxx shall also be entitled to participate in any and all
Company benefit plans in effect from time to time for employees of the Company.
Such participation shall be subject to the terms of the applicable plan
documents and shall include, without limitation health, vision, dental, life and
disability insurance. Xxxxxx shall also be entitled to receive a car allowance
as shall be reasonably determined by the Board of Directors.
7. Vacation, Sick Leave and Holidays. Xxxxxx shall be entitled to four (4)
weeks of paid vacation during the first year of the Employment Term and five (5)
weeks per year thereafter. In addition, Xxxxxx shall be entitled to such sick
leave and holidays at full pay in accordance with the Company's policies
established and in effect from time to time.
8. Business Expenses. The Company shall promptly reimburse Xxxxxx for all
reasonable out-of-pocket business expenses incurred in performing Xxxxxx'x
duties and responsibilities hereunder in accordance with the Company's policies,
provided Xxxxxx promptly furnishes to the Company adequate records of each such
business expense. Xxxxxx shall be entitled to reimbursement for first-class
airfare and hotel for Company travel.
9. Location of Xxxxxx'x Activities. Xxxxxx'x principal place of business
in the performance of his duties and obligations under this Agreement shall be
at a place no more than twenty (20) miles from the current Santa Xxxxxx office
of the Company. Notwithstanding the preceding sentence, and subject to Xxxxxx'x
availability, Xxxxxx will engage in such travel as may be reasonably necessary
or appropriate in furtherance of his duties hereunder.
10. Confidentiality. Xxxxxx recognizes that the Company has and will have
business affairs, products, future plans, trade secrets, customer lists, and
other vital information which is valuable to the Company because it is not
public and not required by applicable law to be made public (collectively
"Confidential Information") that are valuable assets of the Company. Xxxxxx
agrees that he shall not at any time or in any manner divulge, disclose or
communicate any Confidential Information to any third party (other than to
attorneys and advisors for the Company and/or Xxxxxx) without the prior written
consent of the Company's Board of Directors.
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11. Non-Competition. Xxxxxx acknowledges that he has gained, and will gain
extensive knowledge in the business conducted by the Company and has had, and
will have, extensive contacts with customers of the Company. Accordingly, Xxxxxx
agrees that he shall not compete with the Company, during the Employment Term
and, if the Company terminates his employment with Cause or if Xxxxxx terminates
his employment without Good Reason, then for an additional one (1) year period
immediately after such termination of Xxxxxx'x employment and shall not, during
such period, make public statements in derogation of the Company. For the
purposes of this Section 11, competing with the Company shall mean engaging as
principal owner, officer, partner, consultant, advisor, either alone or in
association with others, in the operation of any entity engaged in a business
which is similar to and competes with the "Company Business". As used herein,
"Company Business" means the distribution of video content through retail
marketing channels and peripheral hardware storage devices.
12. Termination. Notwithstanding any other provisions hereof to the
contrary, Xxxxxx'x employment hereunder shall terminate under the following
circumstances:
(a) Voluntary Termination by Xxxxxx. Xxxxxx shall have the right to
voluntarily terminate this Agreement and his employment hereunder at any time
during the Employment Term.
(b) Termination by Xxxxxx with "Good Reason". Xxxxxx shall have the
right to terminate this Agreement and his employment hereunder with "Good
Reason" at any time during the Employment Term. As used herein, "Good Reason"
shall mean (i) material breach of this Agreement by the Company including,
without limitation, any diminution in title, office, rights and privileges of
Xxxxxx or failure to receive base salary payments on a timely basis pursuant to
Section 5(a) of this Agreement; (ii) relocation of the principal place for
Xxxxxx to provide his services hereunder to any location more than twenty (20)
miles away from 000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000; (iii)
failure of the Company to maintain in effect directors' and officers' liability
insurance covering Xxxxxx in compliance with Paragraph 17(c) below; (iv) any
assignment or transfer by the Company of any of its rights or obligations under
this Agreement; or (v) any change in control of the Company including, without
limitation, if Xxxxxx shall cease to own a majority of the voting securities of
the Company.
(c) Voluntary Termination by the Company Without "Cause". The
Company shall have the right to voluntarily terminate this Agreement and
Xxxxxx'x employment hereunder at any time after the Initial Term. Termination of
Xxxxxx'x employment pursuant to this Section 12(c) shall not be effective unless
the Company shall have first given Xxxxxx a written notice thereof at least
thirty (30) days prior to the annual anniversary of the Effective Date of
Xxxxxx'x employment under this Agreement.
(d) Termination for Cause. The Company shall have the right to
terminate this Agreement and Xxxxxx'x employment hereunder at any time for
"Cause". As used in this Agreement, "Cause" shall mean (i) continual and
repeated willful refusal by Xxxxxx to substantially implement or adhere to
lawful policies or material directives of the Company's Board of Directors, (ii)
material breach by Xxxxxx of this Agreement, (iii) Xxxxxx'x conviction of a
felony that may have a material adverse impact on the Company's reputation, or
(iv) the criminal misappropriation by Xxxxxx of funds from or resources of the
Company. Cause shall not be deemed to exist unless the Company shall have first
given Xxxxxx a written notice thereof specifying in reasonable detail the facts
and circumstances alleged to constitute "Cause" and thirty (30) days after such
notice such conduct has, or such circumstances have, as the case may be, not
ceased or been remedied.
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(e) Termination Upon Death or for Disability. This Agreement and
Xxxxxx'x employment hereunder shall automatically terminate upon Xxxxxx'x death
or upon written notice to Xxxxxx and certification of Xxxxxx'x disability by a
qualified physician or a panel of qualified physicians if Xxxxxx is unable to
perform the duties contained in this Agreement for a period beyond twelve (12)
months.
(f) Effect of Termination. In the event that this Agreement and
Xxxxxx'x employment is voluntarily terminated by Xxxxxx pursuant to Section
12(a) without Good Reason, or in the event the Company voluntarily terminates
this Agreement pursuant to Section 12(c) or for Cause pursuant to Section 12(d),
all obligations of the Company and all duties, responsibilities and obligations
of Xxxxxx under this Agreement shall cease. Upon such termination, the Company
shall: (i) pay Xxxxxx such compensation pursuant to Section 5(a) equal to all
accrued compensation through the date of termination plus all accrued vacation
pay, reimbursement and bonuses, if any; and (ii) provide, at the Company's
expense, coverage (A) to Xxxxxx under the life, accident and disability
insurance policies available to the senior executive officers of the Company,
and (B) to Xxxxxx and his dependents under the health, dental and vision
insurance plans available to the Company's senior executive officers and their
dependents, in each case for a period of three (3) months after the date of
termination or, in the event any of such life, accident, disability, health,
dental or vision insurance are not continued or Xxxxxx is not eligible for
coverage thereunder due to his termination of employment, the Company shall pay
for the premiums for equivalent coverage, in any event, for a period of three
(3) months after the date of termination. In the event this Agreement is
terminated by the Company without Cause or by Xxxxxx with Good Reason, or upon
the death or disability of Xxxxxx, Xxxxxx shall be entitled to all compensation
pursuant to Section 5 for the period between the effective termination date to
the end of the Employment Term pursuant to Section 4, plus all applicable
vacation pay, reimbursement and bonuses and the same insurance/health benefits
described above, but for the entire remainder of the Employment Term. Payment
will be made to Xxxxxx or Xxxxxx'x appointed trustee.
13. Resignation as Officer. In the event that Xxxxxx'x employment with the
Company is terminated for any reason whatsoever, Xxxxxx agrees to immediately
resign as an Officer of the Company, absent some other agreement by the parties
to the contrary.
14. Governing Law, Jurisdiction and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of California
without giving effect to any applicable conflicts of law provisions and all
actions and proceedings relating hereto shall be brought exclusively in courts
of competent jurisdiction located in Los Angeles County, California.
15. Business Opportunities. During the Employment Term, Xxxxxx agrees to
bring to the attention of the Company's Board of Directors all written business
proposals that come to Xxxxxx'x attention and all business or investment
opportunities of whatever nature that are created or devised by Xxxxxx and that
are within the scope of the Company Business.
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16. Employee's Representations and Warranties. Xxxxxx hereby represents
and warrants that he is not under any contractual obligation to any other
company, entity or individual that would prohibit or impede Xxxxxx from
performing his duties and responsibilities under this Agreement and that he is
free to enter into and perform the duties and responsibilities required by this
Agreement. Xxxxxx hereby agrees to indemnify and hold the Company and its
officers, directors, employees, shareholders and agents harmless from losses
they suffer as a result of his breach of the representations and warranties made
by Xxxxxx in this Section 16.
17. Indemnification.
(a) The Company agrees that if Xxxxxx is made a party, or is
threatened to be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he is or was a director, officer or employee of the Company or is or
was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether or not the basis of such Proceeding is Xxxxxx'x alleged action in an
official capacity while serving as a director, officer, member, employee or
agent, Xxxxxx shall be indemnified and held harmless by the Company to the
fullest extent permitted or authorized by the Company's certificate of
incorporation or bylaws or, if greater, by the laws of the State of Utah,
against all cost, expense, liability and loss (including, without limitation,
attorney's fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by Xxxxxx in
connection therewith, and such indemnification shall continue as to Xxxxxx even
if he has ceased to be a director, member, employee or agent of the Company or
other entity and shall inure to the benefit of Xxxxxx'x heirs, executors and
administrators. The Company shall advance to Xxxxxx to the extent permitted by
law all reasonable costs and expenses incurred by his in connection with a
Proceeding within 20 days after receipt by the Company of a written request,
with appropriate documentation, for such advance. Such request shall include an
undertaking by Xxxxxx to repay the amount of such advance if it shall ultimately
be determined that he is not entitled to be indemnified against such costs and
expenses.
(b) Neither the failure of the Company (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any proceeding concerning payment of
amounts claimed by Xxxxxx that indemnification of Xxxxxx is proper because he
has met the applicable standard of conduct, nor a determination by the Company
(including its Board of Directors, independent legal counsel or stockholders)
that Xxxxxx has not met such applicable standard of conduct, shall create a
presumption that Xxxxxx has not met the applicable standard of conduct.
(c) During the Employment Term, the Company shall maintain in effect
directors' and officers' liability insurance covering Xxxxxx, with coverage
reasonably satisfactory to Xxxxxx.
(d) Promptly after receipt by Xxxxxx of notice of any claim or the
commencement of any action or proceeding with respect to which Xxxxxx is
entitled to indemnity hereunder, Xxxxxx shall notify the Company in writing of
such claim or the commencement of such action or proceeding, and the Company
shall: (i) assume the defense of such action or proceeding; (ii) employ counsel
reasonably satisfactory to Xxxxxx; and (iii) pay the reasonable fees and
expenses of such counsel. Notwithstanding the preceding sentence, Xxxxxx shall
be entitled to employ counsel separate from counsel for the Company and from any
other party in such action if Xxxxxx reasonably determines that a conflict of
interest exists, which makes representation by counsel chosen by the Company not
advisable. In such event, the reasonable fees and disbursements of such separate
counsel for Xxxxxx shall be paid by the Company to the extent permitted by law.
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(e) After the termination of this Agreement and upon the request of
Xxxxxx, the Company agrees to reimburse Xxxxxx for all reasonable travel, legal
and other out-of-pocket expenses related to assisting the Company to prepare for
or defend against any action, suit, proceeding or claim brought or threatened to
be brought against the Company or to prepare for or institute any action, suit,
proceeding or claim to be brought or threatened to be brought against a third
party arising out of or based upon the transactions contemplated herein and in
providing evidence, producing documents or otherwise participating in any such
action, suit, proceeding or claim. In the event Xxxxxx is required to appear
after termination of this Agreement at a judicial or regulatory hearing in
connection with Xxxxxx'x employment hereunder, or Xxxxxx'x role in connection
therewith, the Company agrees to pay Xxxxxx a sum, to be mutually agreed upon by
Xxxxxx and the Company, per diem for each day of his appearance and each day of
preparation therefor.
18. Notices. All demands, notices, and other communications to be given
hereunder, if any, shall be in writing and shall be sufficient for all purposes
if personally delivered, sent by facsimile (with confirmation of receipt) or
sent by a recognized overnight courier service or by United States certified
mail, return receipt requested, to the address below or such other address or
addresses as such party may hereafter designate in writing to the other party as
herein provided.
Company Xxxxxx
Digicorp c/o Rebel Crew Films, Inc.
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000 0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000 Marina del Rey, CA 90292
With a mandatory copy to:
Xxxxx X. Xxxx, Esq.
Xxxxx, Xxxxx & Xxxxxx LLP
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Any such notice shall be deemed given upon personal delivery, upon receipt if
sent via facsimile, upon delivery if by a recognized overnight courier service,
or upon receipt as shown on the United States mail return receipt.
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19. Entire Agreement. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other agreement,
whether oral or written with respect to the subject matter contained herein.
This Agreement supersedes any prior written or oral agreements between the
parties regarding the subject matter hereof. This Agreement may be modified or
amended if the amendment is made in writing and is signed by both parties. This
Agreement is for the unique personal services of Xxxxxx to the Company and is
not assignable or delegable, in whole or in part, by Xxxxxx or the Company. The
headings contained in this Agreement are for reference only and shall not in any
way affect the meaning or interpretation of this Agreement. If any provision of
this Agreement (other than regarding stock options, compensation or benefits)
shall be held to be invalid or unenforceable for any reason, the remaining
provisions shall continue to be valid and enforceable. The failure of either
party to enforce any provision of this Agreement shall not be construed as a
waiver or limitation of that party's right to subsequently enforce and compel
strict compliance with every provision of this Agreement. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument and, in
pleading or proving any provision of this Agreement, it shall not be necessary
to produce more than one of such counterparts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
DIGICORP:
/s/ Xxxxxxx X. Xxxxx /s/ Xxx Xxxxxx
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Xxxxxxx X. Xxxxx, Xxx Xxxxxx
Chief Financial Officer
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