EXHIBIT 10.3
NoBidding Inc
Executive Employment Agreement
THIS EMPLOYMENT AGREEMENT, dated as of the 28th day of August, 2003, is
between NoBidding Inc with its principal offices at 000 Xxxxxxxxx Xx., Xxx. 000,
Xxxxxxxxxx, XX 00000 (the "Company") and Xxxxxxx Xxxxxxxx ("Employee").
THEREFORE, in consideration of the mutual promises and of the
representations, warranties, covenants and agreements herein contained, the
parties hereto, intending to be legally bound according to the terms of this
Agreement, hereby agree as follows:
1. Employment
(a) During the Employment Term, Employee shall serve as Chief Executive
Officer ( CEO ) and perform all duties and accept all responsibilities
incidental to such position.
(b) Employee represents to the Company that he is not subject or a party to
any employment agreement, non-competition covenant, non-disclosure
agreement or other agreement, covenant, understanding or restriction of any
nature whatsoever which would prohibit Employee from executing this
Agreement and performing fully his duties and responsibilities hereunder,
or which would in any manner, directly or indirectly, limit or affect the
duties and responsibilities which may now or in the future be assigned to
Employee by the Company.
1.1 Duties and Responsibilities.
(a) During the Employment Term, Employee shall serve as Director of
Information Technologies and perform all duties and accept all
responsibilities incidental to such position.
(b) Employee represents to the Company that he is not subject or a party to
any employment agreement, non-competition covenant, non-disclosure
agreement or other agreement, covenant, understanding or restriction of any
nature whatsoever which would prohibit Employee from executing this
Agreement and performing fully his duties and responsibilities hereunder,
or which would in any manner, directly or indirectly, limit or affect the
duties and responsibilities which may now or in the future be assigned to
Employee by the Company.
1.2 Extent of Service.
The Term of this Agreement shall be for a period of three years (the
"Employment Term"). During the Employment Term, Employee agrees to use his
best efforts to carry out his duties and responsibilities under Section 1.
hereof. Except as provided in Section 5 hereof, the foregoing shall not be
construed as preventing Employee from making investments in other
businesses or enterprises provided that Employee agrees not to become
engaged in any other business activity which may, in the judgment of the
Board of Directors of the Company, interfere with his ability to discharge
his duties and responsibilities to the Company.
1.3 Base Compensation.
(a) For all the services rendered by Employee hereunder, the Company shall
pay Employee an annual base salary of One hundred twenty thousand (
$120,000.00 ) dollars.
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(b) Stock Participation - Employee will have Options available on Two
million ten thousand (2,010,000.) Shares at $.001 per share.
(c) Bonuses - Employee is eligible for bonus participation if the following
goals are met during the first 12 months of operation commencing October 1,
2003 ending September 30, 2004:
1. Membership enrollment: If enrollments reach 210,000 members, a
Fifteen thousand ($15,000.) dollar bonus will be paid. If enrollments
exceed 270,000 an additional Five thousand ($5,000.) dollar bonus will be
paid.
2. Revenue: If revenues reach Two million two hundred thousand
($2,2000,000) dollars, a Fifteen thousand ($15,000.) dollar bonus will be
paid. If revenues exceed Two million eight hundred thousand ($2,800,000.)
dollars an additional Five thousand ($5,000.) dollar bonus will be paid.
3. Net Income: If net income reached Two hundred sixty-four thousand
($264,000.) dollars, a Fifteen thousand ($15,000.) dollar bonus will be
paid. If net income exceeds Three hundred thirty-six thousand ($336,000.)
dollars, an additional Five thousand ($5,000.) dollar bonus will be paid.
4. Performance: An overall performance bonus of Fifteen thousand
($15,000) to Twenty thousand ($20,000) dollars may be paid out at the
discretion of the Board of Directors.
1.4 Term.
Upon the Thirteenth month (13) Employee shall receive Thirty-three and
one-third percent (33.3% ) of their Optioned Shares, if exercised, and then
on each twelve successive month anniversary of the Agreement date until all
Optioned Shares are received.
(c) Medical benefits will be offered by the Company. During the Employment
Term, Employee shall also be entitled to participate in such programs as
vacation pay and other fringe benefit plans authorized from time to time by
the Board of Directors of the Company in its discretion for employees of
the Company.
(d) Additional incentive compensation, if any, shall be at the discretion
of the Board of Directors of the Company.
2. Expenses
Employee shall be reimbursed for the reasonable business expenses incurred
by him in connection with his performance of services hereunder during the
Employment Term upon presentation of an itemized account of such expenses in
accordance with the policies and procedures established by the Company. This
amount is not to exceed $500.00 for any single 30-day period without Secretary
or Tearsurer's prior written approval.
3. Developments
All developments, including inventions, whether patentable or otherwise,
trade secrets, discoveries, improvements, ideas and writings which either
directly or indirectly relate to or may be useful in the business of the Company
or any of its affiliates (the "Developments") which Employee, either by himself
or in conjunction with any other person or persons, has conceived, made,
developed, acquired or acquired knowledge of during his employment by the
Company. Employee hereby assigns, transfers and conveys, and agrees to so
assign, transfer and convey to the Company, all of his right, title and interest
in and to any and all such Developments to the Board of Directors of the
Company. At any time and from time to time, upon the request and at the expense
of the Company, Employee will execute and deliver any and all instruments,
documents and papers, give evidence and do any and all other acts which, in the
opinion of counsel for the Company, are or may be necessary or desirable to
document such transfer or to enable the Company to file and prosecute
applications for and to acquire, maintain and enforce any and all patents,
trademark registrations or copyrights under United States or foreign law with
respect to any such Developments or to obtain any extension, validation,
reissue, continuance or renewal of any such patent, trademark or copyright. The
Company will be responsible for the preparation of any such instruments,
documents and papers and for the prosecution of any such proceedings and will
reimburse Employee for all reasonable expenses incurred by him in compliance
with the provisions of this Section.
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4. Confidential Information
(a) Employee recognizes and acknowledges that by reason of his employment
by and service of the Company, he has had, and will continue to have (both
during the Employment Term and at any time thereafter during which he may be
employed by the Company), access to confidential information of the Company and
its affiliates, including without limitation, information and knowledge
pertaining to products and services offered, ideas, plans, trade secrets,
proprietary information, advertising, distribution and sales methods and
systems, sales and profit figures, customer and client lists, and relationships
between the Company and its affiliates and customers, clients, suppliers and
others who have business dealings with the Company and its affiliates
("Confidential Information"). Employee acknowledges that such Confidential
Information is a valuable and unique asset and covenants that he will not,
either during or at any time after the Employment Term, disclose any such
Confidential Information to any person for any reason whatsoever (except as his
duties described herein may require) without the prior written authorization of
the Board of Directors of the Company, unless such information is in the public
domain through no fault of Employee or except as may be required by law.
(b) Employee will not disclose the terms of his employment or the contents
of this agreement to any person for any reason whatsoever (except as his duties
described herein may require) without the prior written authorization of the
Board of Directors of the Company, unless such information is in the public
domain through no fault of Employee or except as may be required by law.
5. Non-Competition
(a) During the Employment Term and for a Twenty-four (24) month period
following the date the employment of Employee by the Company or any of its
affiliates has ended (whether or not such employment is pursuant to this
Agreement), Employee will not, unless acting pursuant hereto or with the prior
written consent of the Board of Directors of the Company, directly or
indirectly, own, manage, operate, control, finance or participate in the
ownership, management, operation, control or financing of, or be connected as an
officer, director, partner, principal or otherwise with any business or
enterprise engaged within any portion of the United States in the auction
Internet sites or in any other business in which the Company was engaged at the
date of termination of Employee's employment by the Company or at any time for
one year after termination of employment with the Company. It is recognized by
Employee that the business of the Company and Employee's connection therewith is
or will be involved in auction Internet sites throughout the United States, and
that more limited geographical limitations on this non-competition covenant and
the non-solicitation covenant set forth in Section 6 hereof are therefore not
appropriate.
(b) The foregoing restrictions shall not be construed to prohibit the
ownership by Employee of not more than five percent (5%) of any class of
securities of any corporation which is engaged in any of the foregoing
businesses as described in Sect. 5.b, provided that such ownership represents a
passive investment and that neither Employee nor any group of persons including
Employee in any way, either directly or indirectly, manages or exercises control
of any such corporation, guarantees any of its financial obligations, otherwise
takes any part in its business, other than exercising his rights as a Membership
Unit owner, or seeks to do any of the foregoing.
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(c) In the event that Employee is terminated Without Cause by the Company
pursuant to Section 8.4 and Employee desires to be employed by a company (the
"Prospective Employer") in violation of the covenants set forth in Section 5(a)
above, Employee may request a waiver of Section 5(a) above and such waiver shall
be granted by the Company unless the Prospective Employer is a Direct Competitor
of the Company in the current geographic markets the Company is engaged.
6. No Solicitation
During the Employment Term and for the one year period following the date
employment of Employee by the Company or any of its affiliates has ended
(whether or not such employment is pursuant to the Agreement), Employee will
not, either directly or indirectly, (i) call on or solicit any person, firm,
corporation or other entity who or which at the time of such termination was, or
within two years prior thereto had been, a customer of the Company or any of
their respective affiliates with respect to the activities prohibited by Section
6 hereof or (ii) solicit the employment of any person who was employed by the
Company or any of Its affiliates on a full or part-time basis at any time during
the course of Employee's employment, unless such person prior to such
solicitation of employment (A) was involuntarily discharged by the Company or
such affiliate, or (B) voluntarily terminated his/her relationship with the
Company or such affiliate.
7. Equitable Relief
(a) Employee acknowledges that the restrictions contained in Sections 3, 4,
5 and 6 hereof are reasonable entered into this Agreement, in the absence of
such restrictions, and that any violation of any provision of those Sections
will result in irreparable injury to the Company.
(b) EMPLOYEE FURTHER REPRESENTS AND ACKNOWLEDGES THAT (i) HE HAS BEEN
ADVISED BY THE COMPANY TO CONSULT HIS OWN LEGAL COUNSEL IN RESPECT OF THIS
AGREEMENT, (ii) THAT HE HAS HAD FULL OPPORTUNITY, PRIOR TO EXECUTION OF THIS
AGREEMENT, TO REVIEW THOROUGHLY THIS AGREEMENT WITH HIS COUNSEL, AND (iii) HE
HAS READ AND FULLY UNDERSTANDS THE TERMS AND PROVISIONS OF THIS AGREEMENT.
(c) Employee agrees that the Company shall be entitled to preliminary and
permanent injunctive relief, without the necessity of providing actual damages,
as well as an equitable accounting of all earnings, profits and other benefits
arising from any violation of Sections 3, 4, 5 or 6 hereof, which rights shall
be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. In the event that any of the provisions of Sections 5,
or 6 hereof should ever be adjudicated to exceed the time, geographic, product
or service, or other limitations permitted by applicable law in any
jurisdiction, then such provisions shall be deemed reformed in such jurisdiction
to the maximum time, geographic, product or service, or other limitations
permitted by applicable law.
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(d) Employee irrevocably and unconditionally (i) agrees that any suit,
action or other legal proceeding arising out of this Agreement, including
without limitation, any action commenced by the Company for preliminary or
permanent injunctive relief or other equitable relief, must be brought in the
United States District Court for the Southern District of Florida, or if such
court does not have jurisdiction or will not accept jurisdiction, in any court
of general jurisdiction in Palm Beach County (ii) consents to the non-exclusive
jurisdiction of any such court in any such suit, action or proceeding, and (iii)
waives any objection which Employee may have to the laying of venue of any such
suit, action or proceeding in any such court. Employee also irrevocably and
unconditionally consents to the service of any process, pleadings, notices or
other papers in a manner permitted by the notice provisions of Section 12
hereof.
8. Termination
This Agreement shall terminate prior to the expiration of its term set
forth in Section 1.1 above upon the occurrence of any one of the following
events:
8.1 Disability.
In the event that Employee is unable fully to perform his essential duties
and responsibilities hereunder to the full extent required by the Board of
Directors of the Company by reason of illness, injury or incapacity for one
hundred and twenty consecutive days, during which time he shall continue to
be compensated as provided in Section 1.4 hereof (less any payments due
Employee under disability benefit programs, including Social Security
disability, worker's compensation hereunder; provided, however, that
Employee will be entitled to receive the payments prescribed under any
disability benefit plan which may be in effect for employees of the Company
and in which he participated. Employee agrees, in the event of any dispute
under this Section 8.1, to submit to a physical examination by a licensed
physician selected by the Board of Directors of the Company.
8.2 Death.
In the event that Employee dies during the Employment Term, the Company
shall pay to his executors, legal representatives or administrators any
amounts due and owing to the date of death to Employee as part of the
salary set forth in Section 1.4(a) hereof, and thereafter the Company shall
have no further liability or obligation hereunder to his executors, legal
representatives, administrators, heirs or assigns or any other person
claiming under or through her; provided, however, that Employee's estate or
designated beneficiaries shall be entitled to receive the payments
prescribed for such recipients under any death benefit plan which may be in
effect for employees of the Company and in which Employee participated.
8.3 Cause.
Nothing in this Agreement shall be construed to prevent its termination by
the Company at any time for "cause." For purposes of this Agreement,
"cause" shall mean and be limited to Employee's:
(a) Commission of any act of fraud, misappropriation or personal dishonesty
relating to or involving the Company in any material way;
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(b) Gross negligence in the performance of his duties or in any way
relating to the obligations and duties which he owes the Company;
(c) Violation of any express direction of the Company or any material
violation of any rule, regulation, policy or plan established by the
Company from time to time regarding the conduct of its Employees and/or its
business, if such violation is not remedied by Employee within thirty (30)
days of receiving notice of such violation from the Company;
(d) Demonstrably willful and deliberate violation of any obligation owed by
Employee to the Company;
(e) Material disclosure or use of Confidential Information, other than as
required in the performance of Employee's duties under this Agreement;
(f) Conviction of a crime constituting a felony or any other crime
involving moral turpitude or criminal indictment for a crime involving
moral turpitude in which the substantial weight of credible evidence
indicates that Employee has committed such a crime.
In the event of termination for cause under section 8.3(a) or (f) of this
Section 8.3, Employee shall be suspended pending an independent
investigation by persons retained by the Company.
In the event of a termination for cause, the Company shall have no
obligation to make any further payments or to provide any further benefits
or compensation hereunder to Employee for any period subsequent to the date
of such termination.
8.4 Without Cause by the Company.
The Company may terminate this Agreement upon not less than 5 days' written
notice to Employee at and for the Company's sole convenience and in its
sole discretion and without specifying any cause as set forth in Section
8.3 hereof. In such event, and contingent upon (i) receipt by the Company
of a valid and fully effective release (in form and substance satisfactory
to the Company) of all claims under the Age Discrimination and Employment
Act, 29 U.S.C. ss. 621 et. seq (ii) the resignation of Employee from all
positions of any nature which Employee may then have held with the Company
and any of its affiliates.
9. Survival.
Notwithstanding the termination of this Agreement by the Company by reason
of Employee's disability under Section 8.1, for cause under Section 8.3, without
cause under Section 8.4, or as a result of a Change of Control under Section
8.5, his obligations under Sections 3, 4, 5 and 6 hereof shall survive and
remain in full force and effect for the periods therein provided, and the
provisions for equitable relief against Employee in Section 8 hereof shall
continue in force, along with the provisions of Sections 10 through 18 hereof.
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10. Governing Law.
This Agreement shall be governed by and interpreted under the laws of the
State of Florida without giving effect to any conflict of laws provisions.
11. Litigation Expenses.
In the event of a lawsuit by either party to enforce the provisions of this
Agreement each Party must pay their costs and expenses.
12. Notices.
All notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing and shall be
deemed to have been given when hand delivered or mailed by registered or
certified mail, as follows (provided that notice of change of address shall be
deemed given only when received):
If to the Company: 000 X Xxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
If to Employee: 0000 Xxxx Xx.
Xxxx Xxxxxx, XX 00000
or to such other names or addresses as to the Company or Employee, as the case
may be, shall designate by notice to each other person entitled to receive
notices in the manner specified in this Section.
13. Entire Agreement: Contents of Agreement.
(a) This Agreement supersedes any and all other agreements, either oral or
written, between the parties with respect to the employment of Employee by
Employer for the purposes set forth in Section 1.2, and contains all of the
covenants and agreement between the parties with respect to such employment
whatsoever. Each party to this agreement acknowledges that no representation,
inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding. Any modification of this agreement will be
effective only if it is in writing and signed by both parties to this agreement.
(b) Employee acknowledges that from time to time, the Company may
establish, maintain and distribute employee manuals or handbooks or personnel
policy manuals, and officers or other representatives of The Company may make
written or oral statements relating to personnel policies and procedures. Such
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manuals, handbooks and statements are intended only for general guidance. No
policies, procedures or statements of any nature by or on behalf of The Company
or the Company (whether written or oral and whether or not contained in any
employee manual or handbook or personnel policy manual), and no acts or
practices of any nature, shall be construed to modify this Agreement or to
create express or implied obligations of any nature to Employee.
(c) Words used herein, regardless of the number and gender specifically
used, shall be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the context
indicates is appropriate.
14. Assignment.
All of the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs, executors,
administrators, legal representatives, successors and assigns of the parties
hereto, except that the duties and responsibilities of Employee hereunder are of
a personal nature and shall not be assignable or delegatable in whole or in part
by Employee.
15. Severability
If any provision of this Agreement or application thereof to anyone or
under any circumstances is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect any other
provision or application and shall not invalidate or render unenforceable such
provision or application in any other jurisdiction.
16. Remedies Cumulative: No Waiver:
No remedy conferred upon the Company or the Employee by this Agreement is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to any remedy given hereunder or
now or hereafter existing at law or in equity. No delay or omission by the
Company or employee in exercising any right, remedy or power hereunder or
existing at law or in equity shall be construed as a waiver thereof, and any
such right, remedy or power may be exercised by the Company or the employee from
time to time and as often as may be deemed expedient or necessary by the Company
or the employee at its sole discretion.
17. Indemnification:
17.1 Third-Party Proceedings.
The Company shall indemnify Employee if Employee is or was a party or is
threatened to be made a party to any threatened, pending, or completed
action or proceedings, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the Company) by
reason of the fact that Employee is or was a director, officer, employee,
or agent of the Company or a Subsidiary (as hereinafter defined), by reason
of any action or inaction on the part of Employee while a director,
officer, employee, or agent or by reason of the fact that Employee is or
was serving at the request of the Company as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, or
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other enterprise, against expenses (including reasonable attorneys fees),
judgments, fines, and amounts paid in settlement (if such settlement is
approved in advance by the Company, which approval shall not be
unreasonably withheld) actually and reasonably incurred by Employee in
connection with such action or proceeding unless the Company shall
establish that (a) Employee did not act in good faith and in a manner
Employee reasonably believed to be in the best interests of the Company
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe Employee's conduct was unlawful; (b) Employee's actions
amounted to gross negligence; or (c) Employee's actions were performed with
knowledge and intent to harm the Company, The termination of any action or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption (i) that Employee did not act in good faith and in a manner
which Employee reasonably believed to be in the best interests of the
Company; or (ii) with respect to any criminal action or proceeding, that
Employee had reasonable cause to believe that Employee's conduct was
unlawful.
17.2 Proceedings by or in the Right of the Company.
The Company shall indemnify Employee if Employee was or is a party or is
threatened to be made a party to any threatened, pending, or completed
action or proceeding by or in the right of the Company or any Subsidiary of
the Company to procure a judgment in its favor by reason of the fact that
Employee is or was a director, officer, employee, or agent of the Company,
or any Subsidiary of the Company, by reason of any action or inaction on
the part of Employee while a director, officer, employee, or agent or by
reason of the fact that Employee is or was serving at the request of the
Company as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses
(including reasonable attorney's fees) and, to the fullest extent permitted
by law, amounts paid in settlement of such action or proceeding unless the
Company shall establish any of the following concerning the action:
a. That Employee did not act in good faith;
b. Employee acted in a manner Employee could not have reasonably believed
to be in the best interests of the Company and its Members;
c. The Employee actions were intentional and with knowledge that such
actions would result in the harm complained of; d. Employee's actions
amount to gross negligence; or
e. Employee's actions were outside the scope of his employment.
No indemnification shall be made in respect of any claim, issue or matter
as to which Employee shall have been adjudged to be liable to the Company
in the performance of Employee's duty to the Company or any Subsidiary of
the Company unless and only to the extent that the court in which such
action or proceeding is or was pending shall determine upon application
that, in view of all the circumstances of the case, Employee is fairly and
reasonably entitled to indemnity for expenses or amounts paid in settlement
and then only to the extent that the court shall determine.
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17.3 Procedure.
Any indemnification provided for in this Agreement shall be made no later
than forty-five (45) days after the resolution (by judgment, settlement,
dismissal, or otherwise) of the claim to which indemnification is sought.
If a claim under this Agreement, under any statute, or under any provision
of the Company's Articles of Incorporation or bylaws providing for
indemnification, is not paid in full by the Company within such period,
Employee may, but need not, at any time thereafter bring an action against
the Company to recover the unpaid amount of the claim and, subject to ss.
17 of this Agreement, Employee shall also be entitled to be paid for the
expenses (including reasonable attorneys' fees) of bringing such action. It
shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in connection with any action or
proceeding in advance of its final disposition) that Employee has not met
the standards of conduct which make it permissible under applicable law for
the Company to indemnify Employee for the amount claimed, but the burden of
proving such defense shall be on the Company, and Employee shall be
entitled to receive interim payments of expenses pursuant to this Agreement
unless and until such defense may be finally adjudicated by court order or
judgment from which no further right appeal exists. It is the parties'
intention that if the Company contest Employee's right to indemnification,
the question of Employee's right to indemnification shall be for the court
to decide, and neither the failure of the Company (including its Board of
Directors, any committee or subgroup of the Board of Directors, independent
legal counsel, or its Members) to have made a determination that
indemnification of Employee is proper in the circumstances because Employee
has met the applicable standard of conduct required by applicable law, nor
an actual determination by the Company (including its Board of Directors,
any committee or subgroup of the Board of Directors, independent legal
counsel, or its Members) that Employee has not met such applicable standard
of conduct, shall create a presumption that Employee has or has not met the
applicable standard of conduct.
17.4 Notice to Insurers.
If, at the time of the receipt of a notice of a claim pursuant to this
Agreement, the Company has directors' and officers' liability insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in
the respective policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the Employee,
all amounts payable as a result of such proceeding in accordance with the
terms of such policies.
17.5 Relationship to Other Sources.
Employee shall not be required to exercise any rights against any other
parties (for example, under any insurance policy purchased by the Company,
Employee, or any other person or entity) before Employee, or Agreement.
However, to the extent the Company actually indemnifies Employee or
advances expenses, the Company shall be entitled to enforce any such rights
which Employee may have against third parties. Employee shall assist the
Company in enforcing those rights if the Company pays Employee's reasonable
costs and expenses of doing so.
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17.6 Selection of Counsel.
In the event the Company shall be obligated under this Agreement to pay the
expenses of any proceeding against Employee, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, with counsel
approved by Employee, which approval shall not be unreasonably withheld,
upon the delivery to Employee of written notice of its election to do so.
After delivery of such notice, approval of such counsel by Employee and the
retention of such counsel by the Company, the Company will not be liable to
Employee under this Agreement for any fees of counsel subsequently incurred
by Employee with respect to the same proceeding, provided that (i) Employee
shall have the right to employ counsel in any such proceeding at Employee's
expense; and (ii) if (A) the employment of counsel by Employee has been
previously authorized by the Company (B) Employee shall have reasonably
concluded that there may be a conflict of interest between the Company and
Employee in the conduct of any such defense, or (C) the Company shall not,
in fact, have employed counsel to assume the defense of such proceeding,
then the reasonable fees and expenses of Employee's counsel shall be at the
expense of the Company.
17.7 Additional Rights
a. Scope. Notwithstanding any other provision of this Agreement, the
Company hereby agrees to indemnify the Employee to the fullest extent
permitted by law, notwithstanding that such indemnification is not
specifically authorized by the other provisions of this Agreement, the
Company's Articles of Incorporation, the Company's bylaws, or by statute.
In the event of any change, after the date of this Agreement, in any
applicable law, statute, or rule which expands the right of a Limited
Liability Company or other corporate entity to indemnify a member of its or
a Subsidiary's board of directors or an officer, such changes shall be,
ipso facto, within the purview of Employee's rights and the Company's
obligations, under this Agreement. In the event of any change in any
applicable law, statute, or rule which narrows the right of a Limited
Liability Company or other corporate entity to indemnify a member of its or
a Subsidiary's Board of Directors or an officer, such changes, to the
extent not otherwise required by such law, statute, or rule to be applied
to this Agreement shall have no effect on this Agreement or the parties
rights and obligations hereunder.
b. Nonexclusivity. The indemnification provided by this Agreement shall not
be deemed exclusive of any rights to which Employee my be entitled under
the Company's Articles of Incorporation, its bylaws, any agreement, any
vote of Members or disinterested directors, the General Corporation Law of
the State of Delaware, or otherwise, both as to action in Employee's
official capacity and as to action or inaction in another capacity while
holding such office. The indemnification provided under this Agreement
shall continue as to Employee for any action taken or not taken while
serving in an indemnified capacity even though Employee may have ceased to
serve in such capacity at the time of any action or other cover proceeding
is commenced.
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c. Partial Indemnification. Employee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of
the expenses judgments, fines, or penalties actually or reasonably incurred
in the investigation, defense, appeal, or settlement of any civil or
criminal action or proceeding, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Employee for the portion
of such expenses, judgments, fines, or penalties to which Employee is
entitled.
d. Acknowledgment. Both the Company and Employee acknowledge that in
certain instances, federal law or applicable public policy may prohibit the
Company from indemnifying its directors and officers under this Agreement
or otherwise. Employee understands and acknowledges that the Company has
undertaken or may be required in the future to undertake with the
Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of
the Company's right under public policy to indemnify Employee.
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18. Miscellaneous.
All section headings are for convenience only. This Agreement may be
executed in several counterparts, each of which is an original. It shall not be
necessary in making proof of this Agreement or any counterpart hereof to produce
or account for any of the other counterparts.
IT IS AGREED & ACKNOWLEDGED THAT THIS AGREEMENT IS CONTINGENT UPON THE
SUCCESSFUL ACQUISITION OF NOBIDDING, INC.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxxxx
------------------------ ------------------------
NoBidding Inc Employee
Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxx
------------------------ ------------------------
Printed Name Printed Name
Secretary/Treasurer Chief Executive Officer
------------------------ ------------------------
Title Title
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