EMPLOYMENT AGREEMENT
Exhibit
10.5
THIS
EMPLOYMENT AGREEMENT (this “Agreement”)
is
made, entered into and effective as of _________________ (the “Effective
Date”),
between GoFish Corporation, its affiliates, successors and assigns (the
“Company”),
and___________, an individual (the “Executive”).
WHEREAS,
the Company and the Executive wish to memorialize the terms and conditions
of
the Executive’s employment by the Company in the position of ____________;
NOW,
THEREFORE, in consideration of the covenants and promises contained herein,
the
Company and the Executive agree as follows:
1. Employment
Period.
The
Company offers to employ the Executive, and the Executive agrees to be employed
by Company, in accordance with the terms and subject to the conditions of this
Agreement, commencing on the Effective Date and terminating on the thirty
(30)
month
anniversary of the Effective Date (the “Scheduled
Termination Date”),
unless terminated in accordance with the provisions of Section 10 below, in
which case the provisions of Section 10 shall control; provided,
however,
that
unless either party provides the other party with written notice of his or
its
intention not to renew this Agreement at least thirty
(30)
days
prior to the expiration of the initial term or any renewal term of this
Agreement (as the case may be), this Agreement shall automatically renew for
additional one-year periods commencing on the day after such expiration date.
The Executive affirms that the
Executive will not violate any legal obligation by entering into this Agreement
and performing the Executive’s obligations hereunder. The Company affirms that
the Company will not violate any legal obligation by entering into this
Agreement and performing the Company’s obligations hereunder.
2. Position
and Duties.
During
the term of the Executive’s employment hereunder, the Executive shall
continue
to serve in the position of ________________ of the Company, and discharge
duties and responsibilities consistent therewith. The
Executive shall have oversight for [DESCRIPTION OF RESPONSIBILITIES],
and
such
other responsibilities and duties as are consistent with the Executive’s
position. The Executive agrees
not
to
engage
in business activities outside the scope of his employment with the Company
if
such activities would materially
detract
from or interfere with his ability to fulfill his responsibilities and duties
under this Agreement and
agrees to act in a manner consistent with the concept that his primary work
responsibility is serving as _________________ of the Company.
3. No
Conflicts.
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 material,
bona fide
business
opportunity presented to
the
Executive that arises within the scope of the Business of the Company (as
defined below) and would be feasible for the Company, and that he will not,
directly or indirectly, exploit any such opportunity for his own
account
without
first affording the Company the opportunity to do so
and
obtaining the Company’s consent to pursue the opportunity.
[The
Company is aware of and consents to the Executive’s continued involvement in
______________________
in a non executive role. [IF APPLICABLE]]
4. Location.
The
Executive’s
primary
office
shall be
at
the
Company’s office located in New York, NY. The Executive understands that he will
spend such time as reasonably
needed
in
the Company’s San Francisco office, or any other locus where the Company now or
hereafter has a business facility, as determined by the Executive in
consultation with the Board.
5 Compensation.
(a) Base
Salary.
During
the period
from the Effective Date through December 31, 2007,
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$________________,
less all
applicable taxes and other appropriate deductions.
The
Compensation Committee (the “Compensation Committee”) of the Company’s board of
Directors (the “Board”) shall review
the Executive’s base salary annually by
no
later than January 31 of each year beginning with January 2008 and
shall
make a recommendation to the Board as to whether such base salary should be
increased, which decision shall be within the Board’s sole
discretion,
with
any increases to be implemented retroactively to January 1 of the relevant
year;
provided [DESCRIBE SPECIFIC TERMS].
(b) Commissions.
During
the term of this Agreement, the Executive shall be entitled to receive
commissions
which are earned and
paid
quarterly
based on
sales closed. [DESCRIPTION
OF TERMS]
(c) Contingent
Commencement Bonus. The Executive shall be entitled to a commencement bonus,
provided [DESCRIPTION OF TERMS AND CONTINGENCIES] (the “Contingent Commencement
Bonus”).
6. Expenses.
During
the term of this Agreement, the Executive shall be entitled to payment or
reimbursement (at
the
Executive’s option) of
any
reasonable expenses incurred
or
paid
by him
in connection with and related to the performance of his duties and
responsibilities hereunder for the Company. All requests by the Executive for
payment or
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
require, evidencing that the Executive, in fact, incurred or paid said
expenses.
7. Vacation.
During
the term of this Agreement, the Executive shall be entitled to accrue, on a
pro
rata basis,
20
vacation days, per year. The Executive shall be entitled to carry over any
accrued, unused vacation days from year to year without limitation
and any
accrued but unused vacation shall be paid out within 10 business days following
the Executive’s final day of employment, or earlier if required by
law.
8. Stock
Options.
From
time to time in its sole discretion, the Company may grant
to
the Executive stock options on the terms and conditions hereinafter
stated:
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(a) Grant
of Options.
The
Company may, in its sole discretion, decide to grant
the
Executive an option to purchase shares of the
Company’s common voting stock (the “Option”)
under
the Company’s 2006 Stock Option Plan (the “Stock
Option Plan”).
Any
such grant shall be evidenced by an Option Agreement as contemplated by the
Stock Option Plan. The Executive shall be eligible for such grants of Options
and other permissible awards (collectively with Options, “Awards”) under the
Stock Option Plan as the Compensation Committee or the Board shall determine.
(b) Option
Price; Term.
The
per
share
exercise price of the Option shall be the fair market value per share of Company
common voting stock at the opening of the market on the date of the grant.
The
term of the Option shall be ten years from the date of grant.
(c) Vesting
and Exercise.
[DESCRIPTION OF TERMS AND CONDITIONS].
(d) Termination
of Service; Accelerated Vesting.
(i) If
the
Executive’s employment is terminated for Cause, as such term is defined below,
all unvested Awards shall immediately expire effective the date of termination
of employment. Vested Awards, to the extent unexercised, shall expire 120 days
after termination of the employment.
(ii) If
the
Executive’s employment is terminated voluntarily by the Executive without Good
Reason, as such term is defined below, all unvested Awards shall immediately
expire effective the date of termination of employment. Vested Awards, to the
extent unexercised, shall expire 120 days after the termination of
employment.
(iii) If
the
Executive’s employment terminates on account of death or Disability, as defined
below, all unvested Awards shall immediately expire effective the date of
termination of employment. Vested Awards, to the extent unexercised, shall
expire one year after the termination of employment.
(iv) If
the
Executive’s employment is terminated (A) in connection with a Change of Control,
as defined below, (or following a Change of Control event), (B) by the Company
without Cause, or (C) by the Executive for Good Reason, all unvested Awards
shall immediately vest and become exercisable effective the date of termination
of employment, and, to the extent unexercised, shall expire one year after
any
such event.
9. Other
Benefits.
(a) Throughout
the term
of this Agreement, the Executive shall be eligible to participate in
all
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, including but not limited to responsibility
for
the cost thereof, and at
substantially the same levels,
as the
Company makes such
opportunities available
to any
other executive
employees.
In
addition, the Executive shall be entitled to any perquisites to which the
Company and the Executive agree as.
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(b) The
Executive’s spouse and dependent minor children will be covered under the
Benefit Plans providing health, medical, dental, and vision benefits,
in
substantially the same manner, including but not limited to responsibility
for
the cost thereof, and at substantially the same levels, as the Company makes
such opportunities available to the spouses
and
dependent minor children to
all
of the
Company’s
managerial or salaried executive employees.
(c) The
Company shall purchase and maintain directors
and officers liability insurance coverage covering the Company’s officers and
directors, including the Executive, as of the Effective Date.
The
Company shall indemnify the Executive to the extent permitted under the bylaws
of the Company and applicable laws.
(d)
Until
such time as Executive becomes covered by Company medical coverage, the Company
shall pay the cost of COBRA coverage provided by Executive’s prior employer, to
the same extent as such coverage was paid for by such prior
employer.
(e) Increase
in Payments Upon a Change of Control.
(i)
Anything in this Agreement to the contrary notwithstanding, in the event that
it
shall be determined that any payment or distribution by the Company to or for
the benefit of Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (a
“Payment”), would constitute an “excess parachute payment” within the meaning of
Section 280G of the Code, the Company shall grant to Executive an additional
number of shares of Company stock with a value equal to one- half (1/2) of
the
excise tax imposed under Section 4999 of the Code (the “Gross-Up Payment
Shares”), and one-half (1/2) of any federal, state and local income tax,
employment tax and excise tax imposed upon award of the Gross-Up Payment Shares.
For purposes of determining the amount of tax on such Shares, unless Executive
specifies that other rates apply, Executive shall be deemed to pay federal
income tax and employment taxes at the highest marginal rate of federal income
and employment taxation in the calendar year in which the Shares are to be
granted and state and local income taxes at the highest marginal rate of
taxation in the state and locality of Executive’s residence on Executive’s
termination
date, net of the maximum reduction in federal income taxes that may be obtained
from the deduction of such state and local taxes. The Gross-Up Payment Shares
shall be granted to Executive on the effective date of an applicable Change
of
Control.
(ii)
All
determinations to be made under this Section 9(e) shall be made by the Company’s
independent public accountant immediately prior to the Change of Control or
by
another independent public accounting firm mutually selected by the Company
and
Executive before the date of the Change of Control (the “Accounting Firm”),
which firm shall provide its determinations and any supporting calculations
both
to the Company and Executive within 20 days after Executive’s termination date.
Any such determination by the Accounting Firm shall be binding upon the Company
and Executive. Within 10 days after the Accounting Firm’s determination, the
Company shall pay the Gross-Up Payment to Executive.
(iii)
All
of the fees and expenses of the Accounting Firm in performing the determinations
referred to in this Section 9(e) shall be borne solely by the
Company.
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10. 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 or liability to the Executive
or his heirs, administrators or executors with respect to compensation and
benefits accruing thereafter, except for the obligation to pay the Executive’s
heirs, administrators or executors any earned but unpaid base salary,
earned
but unpaid commissions,
unpaid
pro
rata
annual
bonus and unused vacation days accrued through the date of death, vested
but unexercised Awards
and any
Contingent Commencement Bonus at the time(s) earned;
provided,
that
nothing contained in this paragraph shall be deemed to excuse any breach by
the
Company of any provision of this Agreement. 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 the
essential functions of his positions
hereunder
by
reason of Disability (as defined below) this Agreement and the Executive’s
employment with the Company shall automatically terminate and the Company shall
have no further obligations or liability to the Executive or his heirs,
administrators or executors with respect to compensation and benefits accruing
thereafter, except for the obligation to pay the Executive or his heirs,
administrators or executors any earned but unpaid base salary,
any
earned but unpaid commissions,
unpaid
pro
rata
annual
bonus and unused vacation days accrued through the Executive’s last date of
Employment with the Company, vested
but unexercised Awards
and any
Contingent Commencement Bonus at the time(s) earned;
provided,
that
nothing contained in this paragraph shall be deemed to excuse any breach by
the
Company of any provision of this Agreement. 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 prevents the performance by the
Executive, with or without reasonable accommodation, of the
essential functions of his positions
hereunder for a period of not less than an aggregate of four
and
one-half
months
during any twelve consecutive months,
and
“Disability” shall not exist unless and until the Company engages the Executive
in the interactive process provided for under the Americans with Disabilities
Act and relevant state and/or local law.
(c) “Cause.”
(i) At
any
time during the term of this Agreement, the Company, by vote of the Board of
Directors, may terminate this Agreement and the Executive’s employment hereunder
for “Cause.” For purposes of this Agreement, “Cause” shall be defined as the
occurrence of: (A)
gross
neglect,
malfeasance,
or
gross insubordination
in
performing the Executive’s duties under this Agreement; (B) the Executive’s
conviction for a felony, excluding convictions associated with traffic
violations; (C)
an
egregious act of dishonesty (including without limitation
theft or
embezzlement)
or a
malicious action by the Executive toward the Company’s customers or
employees;
(D) a
willful and material violation of any provision of Section 11 of this Agreement
or the Non-Competition and Non-Solicitation Agreement referenced in Section
12
of this Agreement;
(E)
intentional reckless conduct that is materially detrimental to the business
or
reputation of the Company; or (F) material failure, other than by reason of
Disability, to carry out reasonably assigned duties or instructions consistent
with the title of ___________________ (provided that material failure to carry
out reasonably assigned duties shall be deemed to constitute Cause only after
a
finding by the Board of Directors of material failure on the part of the
Executive and the failure to remedy such performance to the Board’s satisfaction
within 30 days after delivery of a reasonably detailed written notice to the
Executive of the factual basis for such finding); provided
Cause shall not exist unless and until the Company provides the Executive with
reasonably detailed written notice explaining the factual basis for its intended
termination of the Executive’s employment for Cause, an opportunity to cure any
curable conduct or circumstance, as determined by the Board in its sole
discretion, within ten (10) days after the aforementioned written notice (with
respect to (A), (D) or (E) above), an opportunity to be heard on the matter
at a
duly-scheduled meeting of the Board of Directors thereafter, which is followed
by a vote of the Board of Directors to terminate the Executive’s employment for
Cause.
5
(ii) Upon
the
Company’s termination
of this Agreement or
the
Executive’s employment 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,
any
earned but unpaid commissions,
unpaid
pro
rata
annual
bonus and unused vacation days accrued through 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.
(d) Change
of Control.
For
purposes of this Agreement, “Change
of Control”
means
the occurrence of, or the Company’s Board’s vote to approve: (A) any
consolidation or merger of the Company pursuant to which the stockholders of
the
Company immediately before the transaction do not retain immediately after
the
transaction, in substantially the same proportions as their ownership of shares
of the Company’s
voting
stock immediately before the transaction, direct or indirect beneficial
ownership of more than 50% of the total combined voting power of the outstanding
voting securities of the surviving business entity; (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% of the outstanding voting securities
of such company after any such transfer; or (C) the direct or indirect sale
or
exchange in a single or series of related transactions by the stockholders
of
the Company of more than 50% of the voting stock of the Company.
(e) “Good
Reason.”
(i) At
any
time during the term of this Agreement, subject to the conditions set forth
in
Section 10(e)(ii) 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 of any of the following events: (A) the
assignment, without the Executive’s consent, to the Executive of duties that are
significantly different from
or
that
reflect
a
substantial diminution of, the duties that he assumed on the Effective Date;
(B)
the
assignment, without the Executive’s consent, to the Executive of a title
other
than __________________
of the Company; (C) any
refusal by the Company or a successor entity to honor the terms of this
Agreement or to provide comparable compensation, benefits, and equity rights,
other than a termination for Cause, within 12 months after a Change of Control;
(D) any
attempt by the
Company,
without
the Executive’s
written
consent,
to move
the
Executive’s primary work location from the Manhattan borough of New York
City;
(E)
a
change
in the lines of reporting such that the Executive no longer reports exclusively
to the Board of Directors; or (F) any
material
breach by the Company of this Agreement
including any material failure by the Company to provide any of the
consideration reflected in Section 5 hereof as prescribed therein.
6
(ii) The
Executive shall not be entitled to terminate his employment with the Company
and
this Agreement for Good Reason unless and until he shall have delivered written
notice to the Company of his intention to terminate this Agreement and his
employment with the Company for Good Reason, which notice specifies in
reasonable detail the circumstances claimed to provide the basis for such
termination for Good Reason, and the Company shall not have eliminated the
circumstances constituting Good Reason,
to the
extent curable,
within
30 days
of its receipt from the Executive of such written notice.
(iii) In
the
event that the Executive terminates this Agreement and his employment with
the
Company for Good Reason
or the
Company terminates the Executive’s employment without Cause,
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, any
earned but unpaid pro rata commissions, (which
shall be measured by the draw set forth in Section 5(b) if the Executive is
not
eligible for any other commission at the time of any such
termination),
and
unused vacation days accrued through the Executive’s last day of employment with
the Company; (B) the
value
of vacation days that the Executive would have accrued through the Executive’s
last day of employment with the Company; (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, through the
Executive’s last day of employment with the Company, and for
12
months
thereafter; (D)
a
severance
payment
in
the
amount equal to the Executive’s base salary in the prior 12 months, plus 12
months’ draw
and (E)
any Contingent Commencement Bonus at the time(s) earned.
All
payments due hereunder shall be made within 45 days after the date of
termination of the Executive’s employment
(and
certain payments may be due earlier pursuant to legal requirements).
The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA, and FUTA, and other appropriate
deductions.
(iv) The
Executive shall have no duty to mitigate his damages, except that continued
benefits required to be provided under Section 10(e)(iii)(C) shall be canceled
or reduced to the extent of any comparable benefit coverage offered to the
Executive during the period prior to the Scheduled Termination Date by a
subsequent employer or other person or entity for which the Executive performs
services, including but not limited to consulting services.
7
(f) 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 by providing prior written notice of at least 45 days
to
the Company. Upon termination by the Executive of this Agreement and the
Executive’s employment with the Company without 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, and
unused vacation days accrued through the Executive’s last day of employment with
the Company
and to
pay any Contingent Commencement Bonus at the time(s) earned.
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 by providing prior written notice of at least 45 days
to
the Executive. 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): (A) any
earned but unpaid base salary, any
earned but unpaid pro rata commissions, (which shall be measured by the draw
set
forth in Section 5(b) if the Executive is not eligible for any other commissions
at the time of any such termination),
and
unused vacation days accrued through the Executive’s last day of employment with
the Company;
(B) the
value of vacation days that the Executive would have accrued through the
Executive’s last day of employment with the Company; and (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, through the
Executive’s last day of employment with the Company, and for 12 months
thereafter; (D)
a
severance
payment
in
the
amount equal to the Executive’s base salary in the prior 12 months, plus 12
months’ draw.
All
payments due hereunder shall be made within 45 days after the date of
termination of the Executive’s employment
(and
certain payments may be due earlier pursuant to legal requirements);
and (E)
any Contingent Commencement Bonus at the time(s) earned.
The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA, and FUTA, and other appropriate
deductions.
11. Confidential
Information.
(a) The
Executive expressly acknowledges that, in the performance of his duties and
responsibilities with the Company, he has been exposed since prior to the
Effective Date, 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, business partners, or customers
(“Confidential
Information”).
The
term “Confidential Information” includes information or material that has actual
or potential commercial value to the Company, its affiliates and/or its clients,
business partners, or customers,
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
and is
treated as confidential by the Company in practice.
8
(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
means
other
than the Executive’s malfeasance to
persons outside the Company, its affiliates, and/or its clients, business
partners, 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
(other than the Company) Confidential Information
(other
than to the extent the Executive, in consultation with the Board and/or CEO,
reasonably deems it appropriate to make disclosures in the conduct of his duties
for the Company and subject to any appropriate protections).
“Confidential Information” includes 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
(but
assuming it is treated as confidential by the Company in practice):
(i)
lists
of
and/or information concerning customers, prospective customers, suppliers,
employees, consultants, co-venturers, and/or joint venture candidates of the
Company, its affiliates, or its clients or customers; (ii) information
submitted by customers, prospective customers, suppliers, employees,
consultants, and/or co-venturers of the Company, its affiliates, and/or its
clients or customers; (iii) non-public
information proprietary to 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, expansion plans (for current and proposed facilities),
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) proprietary
technical information concerning products and services of the Company, its
affiliates, and/or its clients, business partners, 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, business partners, or customers;
(vi) acquisition or merger targets; (vii) business plans or strategies, data,
records, financial information, or other trade secrets concerning the actual
or
contemplated business, strategic alliances, policies, or operations of the
Company or its affiliates; or (viii) 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; or (ix) any other confidential information disclosed to the
Executive by, or which the Executive obligated under a duty of confidence from,
the Company, its affiliates, and/or its clients, business partners or
customers.
(c) 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
(excluding any materials relating to the terms and conditions of the Executive’s
employment with the Company and the termination thereof).
9
12. Non-Competition
And Non-Solicitation Agreement.
The
Executive shall enter into a Non-Competition and Non-Solicitation Agreement
with
the Company in the form attached hereto as Exhibit A.
13. Dispute
Resolution.
The
Executive and the Company 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 or with the Executive’s
employment with the Company, except for an action by either party for injunctive
relief, shall be resolved exclusively through final and binding arbitration
under the auspices of the American Arbitration Association (“AAA”). The
arbitration shall be held in San Francisco, CA.
The
Company agrees to cover one-half of the travel and lodging costs for the
Executive and attorneys in connection with any arbitration proceeding under
this
Section 13 and to advance a reasonable amount of funds to the Executive to
defray such costs at the outset of any such arbitration proceeding.
The
arbitration shall proceed in accordance with the National Rules for the
Resolution of Employment Disputes of the 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 arbitrator
shall
have jurisdiction to determine any claim, including the arbitrability of any
claim submitted. The arbitrators may grant any relief authorized by law for
any
properly established claim. The interpretation and enforceability of this
paragraph of this Agreement shall be governed and construed in accordance with
the United States Federal Arbitration Act, 9. U.S.C. § 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, Sections 1981 through 1988 of Title 42 of the
United States Code, COBRA, the New York State Human Rights Law, the New York
City Human Rights Law, 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 and
the
Company acknowledge
that the
purpose and effect of this paragraph is solely to elect private arbitration
in
lieu
of
any judicial proceeding that might
otherwise be
available in
the
event of a
dispute
between them.
Therefore, the Executive and
the
Company hereby
waive
any
rights
to have
any dispute,
other than a request for injunctive relief, heard by a court or jury, as the
case may be, and agree that the
exclusive procedure to redress any such
dispute
will be
arbitration.
14. 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:
GoFish
Corporation
000
Xxxxx
Xxxxxx
Xxxxx
000
Xxx
Xxxxxxxxx, XX 00000
(000)
000-0000 (facsimile)
(000)
000-0000 (direct)
10
If
to the
Executive:
15. Miscellaneous.
(a) 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
New York, without giving effect to the conflicts of law principles of any
jurisdiction.
(b) The
Executive and the Company 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.
Notwithstanding any other provision with respect to the timing of payments
under
this Agreement, if, at the time of the Executive’s termination, the Executive is
deemed to be a “specified employee” (within the meaning of Section 409A(a)(2)(B)
of the Internal Revenue Service Code, and any successor statute, regulation
and
guidance thereto) of the Company, then only to the extent necessary to comply
with the requirements of Section 409A of the Code, any payments to which the
Executive may become entitled under this Agreement as a result of the
Executive’s termination of employment which are subject to Section 409A of the
Code (and not otherwise exempt from its application) will be withheld until
the
first business day of the seventh month following the Date of Termination,
at
which time the Executive shall be paid an aggregate amount equal to six months
of payments otherwise due to the Executive under the terms of or a full lump
sum, whichever is greater. Further, notwithstanding anything herein, to the
extent that the Executive or the Company reasonably believes that Section 409A
of the Code will result in adverse tax consequences to the Executive as a result
of this Agreement, then the Executive and the Company shall renegotiate this
Agreement in good faith in order to minimize or eliminate such tax consequences
and retain the basic after-tax economics of this Agreement for the Executive
to
the extent possible, and if such an agreement cannot be reached, the Company
shall pay the Executive a gross up to cover any applicable excise
tax.
(c) 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 11 or the agreement referenced in Section 12 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
Section 11 of this Agreement or the Non-Competition and Non-Solicitation
Agreement referenced in Section 12 of this Agreement. The Executive and the
Company agree that any pursuit of equitable relief in respect of Section 11
of
this Agreement or the Non-Competition and Non-Solicitation Agreement referenced
in Section 12 of this Agreement shall have no effect whatsoever regarding the
continued viability and enforceability of Section 13 of this
Agreement.
11
(d) 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.
(e) The
Executive and the Company 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. Each party assumes
the risk of any misrepresentation or mistaken understanding or belief relied
upon by him or it in entering into this Agreement.
(f) 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.
(g) 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
Company and the Executive.
(h) 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.
(i) 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.
[Signature
Page Follows]
13
12
IN
WITNESS WHEREOF, the Company and the Executive have executed this Employment
Agreement as of the day and year first above written.
| Executive | GoFish Corporation | ||
| |
|
|
|
| By: | |||
|
Name: Xxxxxxx
Xxxxxxx
Title: Chief
Executive Officer
|
|||
13
Exhibit
A
Non-Competition
and Non-Solicitation Agreement
THIS
Non-Competition and No-Solicitation Agreement (this “Agreement”) is made,
entered into and effective as of _________________ , between GoFish Corporation,
a Nevada corporation, its affiliates, successors and assigns (the “Company”),
and
__________________, an individual (the “Executive”).
Reference
is made to that certain Merger
Agreement
(the
“Merger
Agreement”),
dated
as
of
______________,
relating to a proposed business combination (the “Transactions”)
by and
among the
Company,
BM Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of
the Company, Bolt, Inc. (a/k/a Bolt Media, Inc.), a Delaware corporation
(referred to therein as the “Company” and referred to herein as
“Bolt”)
and the
Indemnification Representative named therein. In consideration of the Company
and Bolt entering into the Transactions, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Executive hereby agrees as follows:
(a) The
Executive agrees and acknowledges that by virtue of his position in the Company,
he is familiar with and in possession of the Company’s trade secrets, customer
information, and other Confidential Information (as defined in Section 11 of
the
Executive’s Employment Agreement with the Company), which are valuable to the
Company, and that their goodwill, protection, and maintenance constitute a
legitimate business interest of the Company, 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”)
(to
the extent the Company comes to own or operate any material asset in other
areas
of the United States during the term of the Executive’s employment, the
definition of Geographic Boundary shall be expanded to cover such other areas),
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.
(b) The
Executive agrees that the Company will
be
irreparably damaged if the Executive were to provide services
or to otherwise participate in
the
business of any Person or other company competing
with the Company in violation of this Agreement, and any such competition by
the
Executive would
result
in significant loss of goodwill by the Company. Therefore, the Executive hereby
agrees and covenants that he shall not, without the prior written consent of
the
Company, directly
or
indirectly,
in any
capacity whatsoever, including, without limitation, as an employee, employer,
consultant, principal, partner, shareholder, officer, director, or in 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
one
year
following the termination of this Agreement or of the Executive’s employment
with the Company, in the Geographic Boundary:
(i) Directly
or indirectly engage, own, manage, operate, control, be employed by, consult
for, participate in, render services for, or be connected in any manner with
the
ownership, management, operation, or control of any business in competition
with
the Business of the Company
on
behalf of any entity or any division, segment, or subsidiary of such entity
that
has derived at least seventy-five percent (75%) of its income from the Business
of the Company (as defined in the next sentence) over the trailing twelve (12)
month period.
The
“Business of the Company” is defined as the internet
video
industry within
the Geographic Boundary.
(ii) Directly
or
indirectly through another person recruit, solicit,
interfere with, or hire,
or
attempt to recruit, solicit,
interfere with, or hire,
any
employee or independent contractor of the Company to leave the employment (or
independent contractor relationship) thereof, whether or not any such employee
or independent contractor is party to an employment agreement. The Company
acknowledges that this Section will not be violated by general advertising
or
general solicitations that are not targeted or directed specifically to
employees of the Company, nor by the consideration or acceptance of unsolicited
applications for employment by such individuals.
(iii) Directly
attempt
in any manner to solicit or
accept
from
any
customer of the Company, with whom the Executive had significant contact during
the term of the Executive’s Employment Agreement, business competitive
with the business done by the Company with such customer on
behalf
of any entity or any division, segment, or subsidiary of such entity that has
derived at least seventy-five percent (75%) of its income from the Business
of
the Company over the trailing twelve (12) month period, or
to
persuade or attempt to persuade any such customer to cease to do business or
to
reduce the amount of business which such customer has customarily done or is
reasonably expected to do with the Company.
(iv) Interfere
with any relationship, contractual or otherwise, between the Company and any
other party, including; without limitation, any supplier, co-venturer or joint
venturer of the Company or solicit such party to discontinue or reduce its
business with the Company.
Notwithstanding
the foregoing provisions of Section (b), if the Executive wishes to participate
in a bona fide opportunity that may be in conflict with Sections (b)(i) or
(iii)
hereof: (1) the Executive shall provide the Company with advance, written notice
of such opportunity, (2) the Company shall then, within fourteen days of such
written notice, notify the Executive as to whether it will agree to waive the
portions of Section (b) that might otherwise prevent the Executive from pursuing
the bona fide opportunity that is the subject of his written notice to the
Company. The Company is under no duty to waive any portion of this Agreement.
The Company’s sole duty upon receiving written notice from the Executive under
this Section is to consider, in its sole discretion, the Executive’s request as
to this issue.
(c) All
issues and disputes concerning, relating to, or arising out of this Agreement,
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 New York, without giving effect to the conflicts of law
principles of any jurisdiction. Further, all disputes arising out of this
Agreement or any agreement attached hereto will be heard in the courts of the
State of New York. All parties to this Agreement and any agreement attached
hereto hereby submit to the jurisdiction of the courts of the State of New
York
and waive all objections to service of process.
(d) The
Executive and the Company 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.
(e) 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 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 this Agreement.
(f) With
the
exception of the procedure set forth in the final paragraph of Section (b)
hereof, any
waiver
or inaction by the Company for any breach of this Agreement shall not be deemed
a waiver of any subsequent breach 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.
(h)
To
the
extent any provision of this Agreement is inconsistent with the Employment
Agreement; the terms of the Employment Agreement shall govern.
IN
WITNESS WHEREOF, the Company and the Executive have executed this Agreement
as
of the day and year first above written.
| Executive | GoFish Corporation | ||
| |
|
|
|
| By: | |||
|
Name: Xxxxxxx
Xxxxxxx
Title: Chief
Executive Officer
|
|||
