AGREEMENT
Exhibit 10.3
AGREEMENT
This Agreement (this “Agreement”), dated as of July 20, 2017 (the “Effective Date”), by and between Yappa World Incorporated, a Delaware corporation with principal offices at 0000 Xxx Xxxxxx, Xxxx X000, Xxxxxx Xxx Xxx, XX 00000 (the “Company”), and Xxxxx Xxxxxxx (“Xxxxxxx”).
WITNESSETH:
WHEREAS, the Company desires to retain Xxxxxxx as Chief Financial Officer of the Company, and Xxxxxxx desires to serve the Company in such capacity, upon the terms and subject to the conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto hereby agree as follows:
1. Retention. Beginning on July 20, 2017 (the ‘‘Effective Date”), Xxxxxxx shall be retained by the Company as Chief Financial Officer. Xxxxxxx shall perform such duties as are consistent with his position as Chief Financial Officer (as applicable, the “Services”). Xxxxxxx agrees to perform such duties faithfully, to devote such of his working time, attention and energies to the business of the Company as is required to fulfill such duties, and while he remains retained by the Company, not to engage in any other business activity that is in conflict with his duties and obligations to the Company.
2. Term. The term of this Agreement (the “Term”) shall commence as of the Effective Date and shall continue for twelve (12) months unless sooner terminated pursuant to Section 8 of this Agreement. Notwithstanding anything to the contrary contained herein, the provisions of this Agreement governing protection of Confidential Information shall continue in effect as specified in Section 5 hereof and survive the expiration or termination hereof.
3. Best Efforts: Place of Performance.
(a) Xxxxxxx shall devote such of his business time, attention and energies to the business and affairs of the Company and shall use his best efforts to advance the best interests of the Company and shall not during the Term be actively engaged in any other business activity, whether or not such business activity is pursued for gain, profit or other pecuniary advantage, that will interfere with the performance by Xxxxxxx of his duties hereunder or Xxxxxxx’x availability to perform such duties or that will adversely affect, or negatively reflect upon, the Company.
(b) The duties to be performed by Xxxxxxx hereunder shall be performed primarily at the office of Xxxxxxx, subject to reasonable travel requirements on behalf of the Company, or such other place as the Company may reasonably designate.
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4. Compensation. As full compensation for the performance by Xxxxxxx of his duties under this Agreement, the Company shall pay Xxxxxxx as follows:
(a) Fees. As compensation for the services performed by Xxxxxxx on behalf of the Company, the Company shall issue Xxxxxxx an aggregate of 100,000 shares of Company common stock (with standard restrictive legend) as follows: 25,000 on each of the Effective Date, and each three month anniversary thereafter (provided this Agreement remains in effect). Xxxxxxx acknowledges that he is sophisticated and has such knowledge of the Company to evaluate the risks involved in accepting shares of common stock in lieu of cash compensation.
(b) Expenses. The Company shall reimburse Xxxxxxx in a timely manner for all normal, usual and necessary expenses incurred by Xxxxxxx in furtherance of the business and affairs of the Company, including reasonable travel and entertainment and necessary travel-related medical expenses, upon timely receipt by the Company of appropriate vouchers or other proof of Xxxxxxx’x expenditures and otherwise in accordance with any expense reimbursement policy as may from time to time be adopted by the Company.
5. Confidential Information and Inventions.
(a) Xxxxxxx recognizes and acknowledges that in the course of his duties he is likely to receive confidential or proprietary information owned by the Company, its affiliates or third parties with whom the Company or any such affiliates has an obligation of confidentiality. Accordingly, during and after the Term, Xxxxxxx agrees to keep confidential and not disclose or make accessible to any other person or use for any other purpose other than in connection with the fulfillment of his duties under this Agreement, any Confidential and Proprietary Information (as defined below) owned by, or received by or on behalf of, the Company or any of its affiliates. “Confidential and Proprietary Information” shall include, but shall not be limited to, confidential or proprietary scientific or technical information, data, and related concepts, business plans (both current and under development), client lists, promotion and marketing programs, trade secrets, or any other confidential or proprietary business information relating to development programs, costs, revenues, marketing, investments, sales activities, promotions, credit and financial data, manufacturing processes, financing methods, plans or the business and affairs of the Company or of any affiliate or client of the Company. Xxxxxxx expressly acknowledges the trade secret status of the Confidential and Proprietary Information and that the Confidential and Proprietary Information constitutes a protectable business interest of the Company. Xxxxxxx agrees: (i) not to use any such Confidential and Proprietary Information for himself or others; and (ii) not to take any Company material or reproductions (including but not limited to writings, correspondence, notes, drafts, records, invoices, technical and business policies, computer programs or disks) thereof from the Company’s offices at any time during the Term, except as required in the execution of Xxxxxxx’x duties to the Company. Xxxxxxx agrees to return immediately all Company material and reproductions (including but not limited, to writings, correspondence, notes, drafts, records, invoices, technical and business policies, computer programs or disks) thereof in his possession to the Company upon request and in any event immediately upon termination of this Agreement.
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(b) Except with prior written authorization by the Company, Xxxxxxx agrees not to disclose or publish any of the Confidential and Proprietary Information, or any confidential, technical or business information of any other party to whom the Company or any of its affiliates owes an obligation of confidence, at any time during or after the Term of this Agreement. Confidential and Proprietary Information shall not include any information or data which (i) was in the receiving party’s lawful possession prior to the submission thereof by the other party, (ii) is later lawfully made available to the receiving party by a third party having no obligation of secrecy to the other party, (iii) is independently developed by the receiving party, or (iv) is or later becomes available to the public through no act or failure to act by the receiving party in violation of this Agreement. If the receiving party is required to disclose Confidential and Proprietary Information of the other party by a regulatory authority, governmental agency or by a proper order of a court of competent jurisdiction, to the extent legally permissible the receiving party shall promptly notify the other party of such demand and tender to it the defense of such demand, use commercially reasonable efforts to minimize such disclosure and, at the disclosing party’s cost, consult with and assist the disclosing party in obtaining a protective order prior to such disclosure. Notwithstanding the foregoing, either party may disclose the Confidential and Proprietary Information to any court or arbitrator having jurisdiction over any dispute between the parties hereto related to the subject matter hereof.
(c) Xxxxxxx agrees that all inventions, discoveries, improvements and patentable or copyrightable works initiated, conceived or made by his, either alone or in conjunction with others, through the use of the resources of the Company or directly related to the business of the Company that qualify as “work made for hire” as defined in 17 U.S.C. § 101 (1976), as amended, during the Term (the “Inventions”) shall be the sole property of the Company to the maximum extent permitted by applicable law. The Company shall be the sole owner of all patents, copyrights, trade secret rights, and other intellectual property or other rights in the Inventions. Xxxxxxx hereby assigns to the Company all right, title and interest he may have or acquire in all such Inventions; provided, however, that the Board of Directors of the Company may in its sole discretion agree to waive the Company’s rights pursuant to this Section 6(c). Xxxxxxx further agrees to assist the Company in every proper way (but at the Company’s [sole] expense) to obtain and from time to time enforce patents, copyrights or other rights on such Inventions in any and all countries, and to that end Xxxxxxx will execute all documents necessary (even after termination of this Agreement):
(i) to apply for, obtain and vest in the name of the Company alone (unless the Company otherwise directs) letters patent, copyrights or other analogous protection in any country throughout the world and when so obtained or vested to renew and restore the same; and
(ii) to defend any opposition proceedings in respect of such applications and any opposition proceedings or petitions or applications for revocation of such letters patent, copyright or other analogous protection.
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(d) Xxxxxxx acknowledges that while performing the Services under this Agreement Xxxxxxx may locate, identify and/or evaluate patented or patentable inventions, discoveries, improvements and patentable or copyrightable works, intellectual property or other business opportunities (the “Third Party Inventions”) having commercial potential and other fields which may be of potential interest to the Company or one of its affiliates. Xxxxxxx understands, acknowledges and agrees that all rights to, interests in or opportunities regarding, all Third-Party Inventions identified by the Company, any of its affiliates or either of the foregoing persons’ officers, directors, employees, agents or consultants during the Term shall be and remain the sole and exclusive property of the Company or such affiliate and Xxxxxxx shall have no rights whatsoever to such Third-Party Inventions and will not pursue for herself or for others any transaction relating to the Third- Party Inventions which is not on behalf of the Company. Notwithstanding the foregoing, if the Company, having been presented with the opportunity by Xxxxxxx to pursue such Third Party Inventions chooses not to do so, then Xxxxxxx may pursue such Third Party Inventions herself without accounting to the Company therefore. Nothing in this Agreement will restrict Xxxxxxx’x use of Third Party Inventions that (i) are or become publicly available through no breach of this Agreement; (ii) are previously known to Xxxxxxx; (iii) are acquired by Xxxxxxx through work performed outside the scope of this Agreement; or (iv) are unrelated to the business of the Company, its affiliates or subsidiaries.
(e) Xxxxxxx agrees that he will promptly disclose to the Company, or any persons designated by the Company, all improvements, Inventions made or conceived or reduced to practice or learned by his, either alone or jointly with others, during the Term.
(f) The provisions of this Section 5 shall survive any termination of this Agreement.
6. Non-Competition, Non-Solicitation and Non-Disparagement.
(a) During the Term and for a period of 24 months thereafter, Xxxxxxx shall not, directly or indirectly, without the prior written consent of the Company:
(i) solicit or induce any employee or consultant of the Company, or any of its affiliates to leave the Company or any such affiliate; or hire for any purpose any employee or consultant of the Company or any affiliate or any employee who has left the Company or any affiliate, within one year of the termination of such persons relationship with the Company or any such affiliate, or at any time in violation of such employee or consultant’s non-competition agreement with the Company or any such affiliate; or
(ii) solicit or accept employment or be retained by any Person who, at any time during the term of this Agreement, was an agent, employee, consultant, client or customer of the Company or any of its affiliates where his position will be related to the business of the Company or any such affiliate; or
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(iii) solicit or accept the business of any agent, employee, consultant, client or customer of the Company or any of its affiliates with respect to products or services which compete directly with the products or services provided or supplied by the Company or any of its affiliates.
(b) The Company and Xxxxxxx each agree that both during the Term and at all times thereafter, neither party shall directly or indirectly disparage, whether or not true, the name or reputation of the other party or any of its affiliates, including but not limited to, any officer, director, employee or controlling shareholder (which shall mean a shareholder owning greater than ten percent (10%) of the outstanding securities of the Company), of the Company.
(c) In the event that Xxxxxxx breaches any provisions of Section 5 or this Section 6 or there is a threatened breach, then, in addition to any other rights which the Company may have, the Company shall be entitled, without the posting of a bond or other security, to seek injunctive relief to enforce the restrictions contained in such Sections, in addition to any other remedies at law or in equity to which the Company may be entitled.
(d) Each of the rights and remedies enumerated in Section 6(c) shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company at law or in equity. If any of the covenants contained in this Section 6, or any part of any of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. If any of the covenants contained in this Section 6 is held to be invalid or unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and in its reduced form such provision shall then be enforceable.
(e) In the event that an actual proceeding is brought in equity to enforce the provisions of Section 5 or this Section 6, Xxxxxxx shall not use as a defense that there is an adequate remedy at law nor shall the Company be prevented from seeking any other remedies which may be available.
(f) The provisions of this Section 6 shall survive any termination of this Agreement.
7. Representations and Warranties by Xxxxxxx. Xxxxxxx hereby represents and warrants to the Company as follows:
(a) To Xxxxxxx’x knowledge, neither the execution or delivery of this Agreement nor the performance by Xxxxxxx of his duties and other obligations hereunder violate or will violate any statute, law, determination or award, or conflict with or constitute a default or breach of any covenant or obligation under (whether immediately, upon the giving of notice or lapse of time or both) any prior agreement, contract, or other instrument to which Xxxxxxx is a party or by which he is bound.
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(b) Xxxxxxx has the full right, power and legal capacity to enter and deliver this Agreement and to perform his duties and other obligations hereunder. This Agreement constitutes the legal, valid and binding obligation of Xxxxxxx enforceable against his in accordance with its terms. No approvals or consents of any persons or entities are required for Xxxxxxx to execute and deliver this Agreement or perform his duties and other obligations hereunder.
8. Termination. This Agreement may be terminated by either party upon thirty (30) days written notice.
9. Miscellaneous.
(a) This Agreement shall be exclusively governed by, and construed and interpreted in accordance with, the laws of the State of California, without giving effect to its principles of conflicts of laws.
(b) Any dispute arising out of, or relating to, this Agreement or the breach thereof (other than Sections 5 or 6 hereof), or regarding the interpretation thereof, shall be finally settled by arbitration conducted in California in accordance with the rules of the American Arbitration Association then in effect before a single arbitrator appointed in accordance with such rules. Judgment upon any award rendered therein may be entered and enforcement obtained thereon in any court having jurisdiction. The arbitrator shall have authority to grant any form of appropriate relief, whether legal or equitable in nature, including specific performance. For the purpose of any judicial proceeding to enforce such award or incidental to such arbitration or to compel arbitration and for purposes of Sections 5 and 6 hereof, the parties hereby submit to the non- exclusive jurisdiction of the Supreme Court of the State of Los Angeles County, and agree that service of process in such arbitration or court proceedings shall be satisfactorily made upon it if sent by registered mail addressed to it at the address referred to in paragraph (g) below. Each party shall be responsible for its/his own attorney’s fees in such arbitration, and all of the costs and expenses incurred with respect to the arbitration proceeding (except for the filing fee, which shall be borne solely by the party commencing the arbitration) shall be divided equally between the parties. Judgment on the arbitration award may be entered by any court of competent jurisdiction.
(c) This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective heirs, legal representatives, successors and assigns.
(d) This Agreement, and Xxxxxxx’x rights and obligations hereunder, may not be assigned by Xxxxxxx. The Company may assign its rights, together with its obligations, hereunder in connection with any sale, transfer or other disposition of all or substantially all of its business or assets or other change of control.
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(e) This Agreement cannot be amended orally, or by any course of conduct or dealing, but only by a written agreement signed by the parties hereto.
(f) The failure of either party to insist upon the strict performance of any of the terms, conditions and provisions of this Agreement shall not be construed as a waiver or relinquishment of future compliance therewith, and such terms, conditions and provisions shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either party shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such party.
(g) All notices, requests, consents and other communications, required or permitted to be given hereunder, shall be in writing and shall be delivered personally or by an overnight courier service or sent by registered or certified mail, postage prepaid, return receipt requested, to the parties at the addresses set forth on the first page of this Agreement, and shall be deemed given when so delivered personally or by overnight courier, or, if mailed, five days after the date of deposit in the United States mails. Either party may designate another address for receipt of notices hereunder by giving notice to the other party in accordance with this subparagraph (g).
(h) This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral, relating to the subject matter hereof. No representation, promise or inducement has been made by either party that is not embodied in this Agreement, and neither party shall be bound by or liable for any alleged representation, promise or inducement not so set forth.
(i) As used in this Agreement, “affiliate” of a specified Person shall mean and include any Person controlling, controlled by or under common control with the specified Person.
(j) The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
(k) This Agreement may be executed in any number of counterparts, each of which shall constitute an original, but all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| Yappa World Incorporated | ||
| By: | /s/ Xxxxxxxx Xxxx | |
| Name: | Xxxxxxxx Xxxx | |
| Title: | President. CEO | |
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Chief Financial Officer | |
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