EMPLOYMENT, CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
This Agreement dated the ____day of February, 2001.
Between
Global Internet Communications Inc.
(hereinafter referred to as the "Company")
and:
Xxxxx Xxxxxx
(hereinafter referred to as the "Employee")
For good and valuable consideration, which is acknowledged received by the
respective parties, the Company employees the Employee on the following terms
and conditions.
1. Term of Employment.
Subject to the provisions for termination set forth below, this Agreement will
begin on the date of execution.
2. Salary.
The Company shall pay the Employee a salary as decided by the Board of
Directors for the services of the Employee, payable at the first of every
month. Payment shall commence on the date to be decided by the Board of
Directors.
3. Duties and Position.
The Employee shall have the position of Chief Technology Officer and be
responsible for all technological and technical issues arising in the use of
the Kyxpyx Technologies Inc. Internet streaming video technology. The
Employee's duties may be reasonably modified at the Company's discretion from
time to time.
4. Employee to Devote Part Time to Company.
The Employee shall devote part time, attention, and energies to the business
of the Company, and, during his employment, may engage in any other business
activity,. The Employee is not prohibited from making personal investments in
any other businesses provided those investments do not require active
involvement in the operation of said companies.
5. Reimbursement of Expenses.
The Employee may incur reasonable expenses for furthering the Company's
business, including expenses for entertainment, travel, and similar items. The
Company shall reimburse the Employee for all business expenses after the
Employee presents an itemized account of expenditures, pursuant to Company
policy.
6. Vacation.
The Employee shall be entitled to a vacation every year and its duration and
vacation pay shall be determined by the Board of Directors.
7. Disability.
If the employee cannot perform the duties because of illness or incapacity for
a period of more than 2 (two) months, the compensation otherwise due during
said illness or incapacity will be reduced by 50 (fifty) percent. The
Employee's full compensation will be reinstated upon return to work. However,
if the Employee is absent from work for any reason for a continuous period of
over 4 (four) months, the Company may terminate the Employee's employment, and
the Company's obligations under this Agreement will cease on that date.
8. Termination of Agreement.
Without cause, the Company may terminate this Agreement at any time upon 60
(sixty) days written notice to the Employee. If the Company requests, the
Employee shall continue to perform his duties and may be paid his regular
salary up to the date of termination. Without cause, the Employee may
terminate his employment upon 30 (thirty) days' written notice to the Company.
The employee may be required by the Company to perform his duties and shall be
paid the regular salary to date of termination. Notwithstanding anything to
the contrary contained in this Agreement, the Company may terminate the
Employee's employment upon 60 (sixty) days' notice to the Employee, and shall
pay the employee regular salary up to the date of termination and any
severance allowance negotiated after this Agreement is executed as if the
Company had terminated this Agreement without cause, should any of the
following events occur:
a) The sale of substantially all of the Company's assets to a single
purchaser or group of associated purchasers; or
b) The sale, exchange, or other disposition, in one transaction of the
majority of the Company's outstanding corporate shares;
c) The Company's decision to terminate its business and liquidate its
assets;
d) The merger or consolidation of the Company with another company;
e) Bankruptcy or chapter 11 reorganization.
9. Death Benefit.
Should the Employee die during the term of employment, the Company shall pay
to Employee's estate any compensation due through the end of the second month
in which death occurred.
10. Non-Competition Provisions
Unless approved by the company in writing, the Employee hereby agrees not to
directly or indirectly compete with the business of the Company and its
successors and assigns except as it relates to involvement with KyxPyx
Technology Inc. in North America during the period of employment and for a
period of 2 (two) years following termination of employment and
notwithstanding the cause or reason for termination. The term "not compete" as
used herein shall mean that the Employee shall not own, manage, operate,
consult or to be employed in a business substantially similar to, or
competitive with, the present business of the Company or such other business
activity which the Company may substantially engage during the term of
employment. The Employee acknowledges that the Company shall or may in
reliance of this Agreement provide the Employee access to trade secrets,
customers and other confidential data and good will. Subject to the provisions
of paragraph 18 herein, the Employee agrees to retain said information as
confidential and not to use said information on his or her own behalf or
disclose same to any third party.
11. Assistance in Litigation.
The Employee shall upon reasonable notice, furnish such information and proper
assistance to the Company as it may reasonably require in connection with any
litigation in which it is, or may become, a party either during or after
employment.
12. Effect of Prior Agreements.
This Agreement supersedes any prior agreement between the Company or any
predecessor of the Company and the Employee, except that this Agreement shall
not affect or operate to reduce any benefit or compensation inuring to the
Employee of a kind elsewhere provided and not expressly provided in this
Agreement.
13. Settlement by Arbitration.
Any claim or controversy that arises out of or relates to this Agreement, or
the breach of it, shall be settled by arbitration in accordance with the rules
of the arbitration Act in force in the jurisdiction where the Company's head
office is located. A judgment upon the award rendered may be entered in any
court with jurisdiction. The Company and the Employee may together waive this
provision of the Agreement and settle their dispute in a court of competent
jurisdiction.
14. Limited Effect of Waiver by Company.
Should the Company waive any breach of any provision of this Agreement by the
Employee, that waiver will not operate or be construed as a waiver of further
breach by the Employee. Should the Employee waive any breach of any provision
of this Agreement by the Company, that waiver will not operate or be construed
as a waiver of further breach by the Company.
15. Severability.
If, for any reason, any provision of this Agreement is held invalid, all other
provisions of this Agreement shall remain in effect.
16. Assumption of Agreement by Company's Successors and Assignees.
The Company"s and Employee"s respective rights and obligations under this
Agreement will inure to the benefit and be binding upon the Company"s and
Employee"s respective successors and assignees.
17. Oral Modifications Not Binding.
This instrument is the entire Agreement of the Company and the Employee. Oral
changes have no effect. This Agreement may be altered only by a written
agreement signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
18. Non-Disclosure Provisions
For the purposes of this Agreement, "Confidential Information" means the
Source Code form of the Kyxpyx streaming video technology (the "Technology"),
Company-authored Derivative Works of the Technology and information that
relates to (i) Company hardware or software, (ii) the customer lists, business
plans and related information of either party, and (iii) any other technical
or business information of the parties, including the terms and conditions of
this Agreement. In all cases, information which a party wishes to be treated
as "Confidential Information" shall be marked as "confidential" or
"proprietary" (or with words of similar import) in writing by the disclosing
party on any tangible manifestation of the information transmitted in
connection with the disclosure, or, if disclosed orally, designated as
"confidential" or "proprietary" (or with words of similar import) at the time
of disclosure or within a reasonable time thereafter unless the circumstances
of the disclosure indicate that such disclosure is intended by a party to be
confidential.
The parties agree that all disclosures of Confidential Information shall be
governed by and treated in accordance with the terms of the Confidential
Disclosure Agreement (the "CDA") attached hereto as Exhibit "A" and
incorporated herein by reference, modified as follows:
(a) The definition of "Confidential Information" shall be as set forth
herein notwithstanding any definition set forth in the CDA;
(b) the obligations of confidentiality expressed in the CDA shall extend 3
(three) years beyond termination or expiration of this Agreement, except
with respect to Source Code form of the Technology, which shall be held
confidential in perpetuity; and
(c) the term of the CDA shall extend to coincide with the Term for purposes
of disclosures of Confidential Information for purposes of this
Agreement.
19. Obligation to Disclose Confidential Information to Employee.
Nothing herein shall require the Employer to disclose any of its information
to the Employee.
20. Destruction of Confidential Information.
At the Employer's option, any documents or other media held or controlled by
the Employee containing Confidential Information may be destroyed by the
Employee. The Employee shall provide a written certificate to the Employer
regarding destruction within ten (10) days thereafter.
21. Confidentiality and Effects of Bankruptcy, Receivership, etc.
The obligation not to disclose shall not be affected by bankruptcy,
receivership, assignment, attachment or seizure procedures, whether initiated
by or against the Employee, nor by the rejection of any agreement between
Employer and Employee, by a trustee of the Employee in bankruptcy, or by the
Employee as a debtor-in-possession or the equivalent of any of the foregoing
under local law.
22. No License.
Nothing contained herein shall be construed as granting or conferring any
rights by license or otherwise in any Confidential Information. It is
understood and agreed that neither party solicits any change in the
organization, business practice, service or products of the other party, and
that the disclosure of Confidential Information shall not be construed as
evidencing any intent by a party to purchase any products or services of the
other party nor as an encouragement to expend funds in development or research
efforts. Confidential Information may pertain to prospective or unannounced
products. The Employee agrees not to use any Confidential Information as a
basis upon which to develop or have a third party develop a competing or
similar product.
23. No Publicity.
The Employee agrees not to disclose the terms and conditions of the Agreement.
24. Governing Law and Equitable Relief.
The provisions of this Agreement shall be governed and construed in accordance
with the laws of the jurisdiction in which the Company has its head office and
the Employee consents to the exclusive jurisdiction of the Court in that
jurisdiction for any dispute arising out of this Agreement. The Employee
agrees that in the event of any breach or threatened breach by him, the
Employer may obtain, in addition to any other legal remedies which may be
available, such equitable relief as may be necessary to protect the Employer
against any such breach or threatened breach.
25. Copyright
The copyright in an work done by the Employee shall be held by the Employer,
unless otherwise agreed to in writing by both parties prior to the work being
done.
27. Headings.
Headings used in this Agreement are provided for convenience only and shall
not be used to construe meaning or intent.
Signed this 1st day of February 2001.
______________________________ ____________________________
Witness Global Communications Inc.
______________________________ ____________________________
Witness Xxxxx Xxxxxx
EXHIBIT "A"
CONFIDENTIAL DISCLOSURE AGREEMENT
BI-LATERAL DISCLOSURE
Global Communications Inc., and Xxxxx Xxxxxx agree as follows:
1. (a) The information disclosed under this Agreement ("Information") includes
the following: Kyxpyx Information: business information related to its
Technology associated technologies, licensing practices and fees, research and
development plans, customers, and marketing and future business plans.
(b) The permitted use of Information is for the purpose of employment
obligations by the Employee.
2. This Agreements covers all Information that has been disclosed between the
Company, its officers, directors and consultants. Each party's obligations
regarding Information expires 3 (three) years after the date of disclosure
(except for Kyxpyx Technology source code, which shall be protected in
perpetuity). Information shall be used solely as permitted above, and shall
not be disclosed to a third party other than a subsidiary, agent, or
subcontractor of the receiving party who has agreed to be bound by the terms
of this Agreement. Each party shall protect Information of the other party
using the same degree of care, but not less than a reasonable degree of care,
as such party to protect its own confidential information. Upon termination of
this Agreement or the disclosing party's written request, the receiving party
shall cease use of Information and return or destroy all information.
3. Each party shall be obligated to protect only Information: (a) disclosed in
tangible form clearly labeled as confidential or proprietary at the time of
disclosure; or (b) disclosed in non-tangible form, identified as confidential
or proprietary at the time of disclosure, and summarized in writing,
designated as confidential or proprietary, and delivered to the other party
within thirty (30) days after disclosure.
4. This Agreement imposes no obligation upon the receiving party with respect
to Information which: (a) was in the possession of, or was known by, the
receiving party prior to its receipt from the disclosing party, without an
obligation to maintain its confidentiality; (b) is or becomes generally known
to the public without violation of this Agreement; (c) is obtained by the
receiving party from a third party, without an obligation to keep such
information confidential; or (d) is independently developed by the receiving
party without use of Information.
5. Disclosure of the other party's Information is not prohibited if prior
notice is given to the other party and such disclosure is: (a) compelled
pursuant to a legal proceeding or (b) otherwise required by law. Information
is delivered "AS IS," and all representations and warranties, express or
implied, including fitness for a particular purpose, merchantability, and
noninfringement, are hereby disclaimed. Neither party has an obligation to
sell or purchase any item from the other party. Neither party shall be liable
for any special, incidental, consequential or punitive damages by reason of
any alleged breach of this Agreement based on any theory of liability. Nothing
is this Agreement shall be construed as a representation that the receiving
party will not develop or acquire information that is the same as or similar
to Information, provided that the receiving party does not do so in breach of
this Agreement. The receiving party agrees that any breach of this Agreement
will result in irreparable harm to the disclosing party for which damages
would be an inadequate remedy and, therefore, in addition to its rights and
remedies otherwise available at law, the disclosing party shall be entitled to
equitable relief, including injunction, in the event of such breach. The
receiving party does not acquire any rights in Information, except the limited
rights to use Information as described above.
6. This Agreement constitutes the entire agreement between the parties
concerning its subject matter. All additions or modifications to this
Agreement must be made in writing and must be signed by an authorized
representative of each party. The parties agree to comply strictly with all
applicable export control laws and regulations. Any action relating to this
Agreement will be governed by California law, excluding choice of law rules.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Signed this _____ day of _______________ 2001.
______________________________ ____________________________
Witness Global Internet Communications Inc.
______________________________ ____________________________
Witness Xxxxx Xxxxxx
