AMENDMENT TO EMPLOYMENT AGREEMENT
EXHIBIT
10.2
AMENDMENT
TO EMPLOYMENT AGREEMENT
THIS
AMENDMENT TO EMPLOYMENT AGREEMENT
("Amendment") is made, entered into and effective as of February 26, 2007,
between GoFish Corporation (the “Company”),
and
Xxxxxxx Xxxxxxx, an individual (the “Executive”).
RECITALS
WHEREAS,
the
Company and the Executive are parties to an Employment Agreement dated as of
October 27, 2006 (the “Employment Agreement”) pursuant to which the Executive
serves as President and Chief Executive Officer of the Company;
WHEREAS,
simultaneous with the execution of this Amendment, the Executive intends to
resign his title of President and retain his title of Chief Executive Officer
of
the Company; and
WHEREAS,
the
parties hereto desire to amend the Employment Agreement to reflect certain
understandings between the Company and the Executive.
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements herein contained, and
the
parties’ continued performance of their mutual obligations under the Employment
Agreement, the parties hereto agree that the Employment Agreement shall be
amended as follows:
1. Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed
to
such terms in the Employment Agreement.
2. Section
2
of the Employment Agreement is hereby amended and restated to read in its
entirety as follows:
2. Position
and Duties.
During
the term of the Executive’s employment hereunder, the Executive shall continue
to serve in, and assume duties and responsibilities consistent with, the
position of Chief Executive Officer, unless and until otherwise instructed
by
the Company. The Executive agrees to devote to the Company substantially all
of
his working time, skill, energy and best business efforts during the term of
his
employment with the Company, and the Executive shall not engage in business
activities outside the scope of his employment with the Company if such
activities would detract from or interfere with his ability to fulfill his
responsibilities and duties under this Agreement or require substantial amounts
of his time or of his services.
3. Section
12(c)(i) of the Employment Agreement is hereby amended and restated to read
in
its entirety as follows:
12. Termination
of Employment..
...
(c) “Cause.”
(i) At
any
time during the term of this Agreement, the Company 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 Sections 13 and 14
hereof; (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 Chief Executive Officer (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, or a duly constituted
committee thereof, of material failure on the part of the Executive and the
failure to remedy such performance to the Board’s or the committee’s
satisfaction within 30 days after delivery of written notice to the Executive
of
such finding).
4. Section
12(e)(i) of the Employment Agreement is hereby amended and restated to read
in
its entirety as follows:
12. Termination
of Employment.
.
. .
.
(e) “Good
Reason.”
(i) At
any
time during the term of this Agreement, subject to the conditions set forth
in
Section 12(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, and that result in 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 that is
different from and subordinate to the title specified in Section 2 above,
provided, however, that the retention of another executive as Chief Executive
Officer shall not, in and of itself, entitle the Executive to claim a
termination for Good Reason hereunder; (C) any termination of the Executive’s
employment by the Company, other than a termination for Cause, within
12
months after a Change of Control;
(D) the
assignment, without the Executive’s consent, to the Executive of duties that are
significantly different from, and that result in a substantial diminution of,
the duties that he assumed on the Effective Date within 12 months after a Change
of Control; or (E) material
breach by the Company of this Agreement.
5. The
Employment Agreement is hereby amended to add a new subsection 12(e)(i)(1),
which reads in its entirety as follows:
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12. Termination
of Employment.
.
. .
.
(e) “Good
Reason.”
(i)
.
. . .
(1) The
hiring of Xxxxxxx Xxxxxx as President or Co-President of the Company shall
not
constitute “Good Reason” hereunder.
6. All
other
terms of the Employment Agreement shall remain in full force and effect and
shall not be affected by this Amendment. In the event of any conflict between
the terms of this Amendment and the terms of the Employment Agreement, this
Amendment shall control.
7. All
issues and disputes concerning, relating to or arising out of this Amendment
and
from the Executive’s employment by the Company, including, without limitation,
the construction and interpretation of this Amendment, shall be governed by
and
construed in accordance with the internal laws of the State of California,
without giving effect to that State’s principles of conflicts of
law.
8. This
Amendment may be executed in two or more counterparts and shall be binding
upon
the parties hereto as if all the parties executed the original
hereof.
9. THE
EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AMENDMENT
AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION THEREOF. THIS
AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS AMENDMENT BY BOTH
PARTIES.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF,
the
parties have caused this Amendment to be duly executed as of the day and year
first above written.
GoFish
Corporation
/s/________________________
Name:
Xxxx
Xxxxxx
Title: Authorized
Signatory
/s/________________________
Xxxxxxx
Xxxxxxx
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