EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into this 4th
day of August, 2002, by and between Videolocity, Inc., a Nevada corporation (the
"Company") and Xxxxxxx Xxxxxx (the "Employee") and will become effective the 1st
day of September 2002.
PREMISES
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. The company hereby employs Employee as Chief Financial
Officer of the Company, its parent and other subsidiaries, and Employee accepts
and agrees to such employment, on the terms and conditions set forth in this
Agreement.
2. Term. The term of this Agreement shall be for three (3) years and
commence effective as of September 1, 2002, and expire at midnight on the last
day of August 2005, unless earlier terminated in accordance with the provisions
of this Agreement.
3. Duties. Employee shall perform the duties assigned to Employee by
the parent Company's Executive Committee (the "Executive Committee") and or the
parents Board of Directors (the "Board") from time to time. Employee shall hold
such offices and serve in such positions with the Company, its parent and/or
other subsidiaries as shall from time to time be requested by the "Executive
Committee" and or the "Board." Employee shall not receive any additional
compensation for service as an officer of the parent or its other subsidiaries,
of the company unless as otherwise established by the "Board."
Employee shall devote substantially all of his working time and efforts
to the business of Company and its parent or other subsidiaries and shall not
during the term of this Agreement be engaged in any other substantial business
activities which will interfere or conflict with the reasonable performance of
his duties hereunder, except where approved by the "Executive Committee" and 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 "Executive Committee" or the "Board," will not present any
conflict of interest with the company, its parent or any of its other
subsidiaries which could materially adversely affect the performance of
Employee's duties under this Agreement.
4. Compensation
(a) Base Salary. For all services rendered by Employee, Company shall
pay to Employee a base salary of $90,000.00 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.
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(b) Participation in Stock Incentive Program. The Company shall grant
Employee 40,000 plan units under the Videolocity, 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. 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. 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. 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
Informaiton 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.
(a) 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
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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
(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 therefore 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
invention.
(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
jurisdiction.
(e) 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.
(f) 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.
9. Shop Rights. 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, 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
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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 marketing 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 for 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.
(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 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;
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(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 Executive
Committee and or Board of Directors of the parent 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 an isolated, insubstantial and inadvertent
failure not occurring in bad faith and which is remedied by the Company
promptly after receipt of notice thereof 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 provisions 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 circumstances in enforcing
the Employee's or the Company's rights hereunder.
(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. Obligation 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:
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(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
Employer'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.
(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
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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
13-d3 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.
(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
(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
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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 addresses as follows.
If to Employee, to: Xxxxxxx Xxxxxx
If to the Company, to: Videolocity, Inc.
ATTN: Chief Executive Officer
358 S. 000 X. Xxxxx X-000
Xxxx 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 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
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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. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Utah.
21. Severability. 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. 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.
24. Survivability. 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:
Videolocity, Inc.
By /s/ Xxxxx X. XxXxxxx, CFO
--------------------------
Duly Authorized Officer
Employee:
/s/ Xxxxxxx X. Xxxxxx
---------------------------
(Signature)
Xxxxxxx X. Xxxxxx
---------------------------
(Print Name)
---------------------------
SS#
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