EMPLOYMENT AGREEMENT
EXHIBIT
10.2
This
Employment Agreement (“Agreement”) is made this 14th day of April, 2009, by and
between ubroadcast, inc., a duly organized Delaware corporation (“Employer”),
and Xxxxx Xxxxxxxx, a resident of the State of California
(“Employee”).
W I T N E S S E T H:
WHEREAS,
Employee has, since Employer’s acquisition of ubroadcast, Inc., served as
Executive Vice President of Employer, without compensation; and
WHEREAS,
Employer desires to retain the services of Employee and Employee desires to
continue to serve as Executive Vice President of Employer; and
WHEREAS,
Employee is willing to be employed by Employer, and Employer is willing to
employ Employee, on the terms, covenants and conditions hereinafter set forth;
and
NOW,
THEREFORE, in consideration of such employment and other valuable consideration,
the receipt and adequacy of which is hereby acknowledged, Employer and Employee
hereby agree as follows:
SECTION I.
EMPLOYMENT OF EMPLOYEE
Employer
hereby employs, engages and hires Employee as Executive Vice
President of Employer, and Employee hereby accepts and agrees to such
hiring, engagement and employment, subject to the general supervision of the
Board of Directors of Employer. Employee shall perform duties as are customarily
performed by one holding such position in other, same or similar businesses or
enterprises as that engaged in by Employer, and shall also additionally render
such other and unrelated services and duties as may be reasonably assigned to
him from time to time by the Board of Directors of Employer. Employee shall
devote his full-time efforts to the performance of his duties as Executive Vice
President of Employer.
SECTION II.
EMPLOYEE’S PERFORMANCE
Employee
hereby agrees that he will, at all times, faithfully, industriously and to the
best of his ability, experience and talents, perform all of the duties that may
be required of and from him pursuant to the express and implicit terms hereof,
to the reasonable satisfaction of Employer.
SECTION III.
COMPENSATION OF EMPLOYEE
Employer
shall pay Employee, and Employee shall accept from Employer, in full payment for
Employee’s services hereunder, compensation as follows:
A. Salary.
Employee shall be paid as and for a salary the sum of $11,000 per calendar
month, which salary shall be payable on the 1st and 15th days of each calendar
month, in advance, subject to deduction of lawful and required
withholding.
Employee’s unpaid salary
shall accrue until paid by Employer. Employee shall have the right, but not the
obligation, to be paid all or a portion of his accrued and unpaid salary in
shares of Employer’s common stock, on the following basis:
on the first business day
of each calendar quarter, should Employee desire to convert his accrued and
unpaid salary from the immediately preceding calendar quarter into shares of
Employer’s common stock, Employee shall deliver to Employer a written notice (a
“Salary Conversion Notice”) of his intent to have Employer pay such accrued and
unpaid salary in shares of Employer’s common stock. Each Salary Conversion
Notice shall set forth (1) the amount of accrued and unpaid salary to be
converted into shares of Employer’s common stock and (2) the number of shares of
Employer’s common stock which are to be issued to Employee based on the
following formula:
Amount of accrued and unpaid
salary from the immediately preceding calendar quarter divided by the Applicable
Share Price (defined below) equals the number of shares to be issued to
Employee. By way of example only, if Employee’s accrued and unpaid salary totals
$5,000 and the Applicable Share Price is $.05, Employer would issue 100,000
shares of its common stock to Employee ($5,000 divided by $.05 equals 00,000
shares).
“Applicable Share Price”
shall mean the average closing sale price of Employer’s common stock, as
reported by the OTC Bulletin Board, for the last ten (10) trading days of the
subject calendar quarter.
B. Cellular
Phone. Employer shall provide Employee with a cellular phone for his use in
performing his responsibilities with Employer. In the alternative, Employer
shall pay Employee’s cellular phone expense.
C. Automobile.
Employer shall provide Employer with an automobile for Employee’s use in
performing his responsibilities with Employer.
D. Insurance
and Other Benefits. As further consideration for his covenants contained herein,
Employer will add Employee, including Employee's family, with such health,
dental and vision insurance as it offers other employees and other benefits,
including a 401(k) plan, as may be established by Employer from time to time
with respect to its employees in accordance with Employer's established
procedures. Employee shall be entitled to Directors' and Officers'
indemnification insurance coverage to the same extent as is provided to other
persons employed as officers of Employer.
E. Other
Compensation Plans. Employee shall be entitled to participate, to the same
extent as is provided to other persons employed by Employer, in any future stock
bonus plan, stock option plan or employee stock ownership plan of
Employer.
F. Other
Expenses. Employee agrees that he shall be responsible for all expenses incurred
in his performance hereunder, unless Employer shall have agreed, in advance and
in writing, to reimburse Employee for any such expenses.
G. Vacations.
During the term of this Agreement, Employee shall be entitled to three (3) weeks
of vacation.
SECTION IV.
INDEMNIFICATION OF EMPLOYEE
As
further consideration of Employee's executing this Agreement, Employer shall
have executed, prior to the execution of this Agreement, an Indemnity Agreement
(the “Indemnity Agreement”), in the form attached hereto as Exhibit IV. The
obligations under the Indemnity Agreement shall survive the termination of this
Agreement.
SECTION V.
COMPANY POLICIES
Employee
agrees to abide by the policies, rules, regulations or usages applicable to
Employee as established by Employer from time to time and provided to Employee
in writing.
SECTION VI.
CONFIDENTIALITY AGREEMENT
A. Confidentiality
Agreement. In consideration of Employer’s executing this Agreement, Employee
shall have executed, prior to the execution of this Agreement, a Confidentiality
Agreement (the “Confidentiality Agreement”), in the form attached hereto as
Exhibit VI(A).
B. Survival.
The obligations under the Confidentiality Agreement shall survive the
termination of this Agreement.
SECTION VII.
TERM AND TERMINATION
A. Term.
The initial term of this Agreement shall be a period of three years, commencing
on April 15, 2009. This Agreement shall renew for an additional three-year
period, provided neither party hereto submits a written notice of termination
within ninety (90) days prior to the termination of the initial term
hereof.
B. Termination.
Employer agrees not to terminate this Agreement except for “just cause”. For
purposes of this Agreement, “just cause” shall mean (1) the willful failure or
refusal of Employee to implement or follow the written policies or directions of
Employer’s Board of Directors, provided that Employee’s failure or refusal is
not based upon Employee’s belief in good faith, as expressed to Employer in
writing, that the implementation thereof would be unlawful; (2) conduct which is
inconsistent with Employee’s position with Employer and which results in a
material adverse effect (financial or otherwise) or misappropriation of assets
of Employer; (3) conduct which violates the provisions contained in the existing
Confidentiality Agreement or the Non-Competition Agreement between Employer and
Employee; (4) the intentional causing of material damage to Employer’s physical
property; and (5) any act involving personal dishonesty or criminal conduct
against Employer.
Although Employer retains the
right to terminate Employee for any reason not specified above, Employer agrees
that if it discharges Employee for any reason other than just cause, as is
solely defined above, Employee will be entitled to full compensation hereunder.
If Employee should cease his employment hereunder voluntarily for any reason, or
is terminated for just cause, all future compensation and benefits payable to
Employee shall thereupon, without any further writing or act, cease, lapse and
be terminated. However, all salary and reimbursements which accrued prior to
Employee’s ceasing employment or termination will become immediately due and
payable and shall be payable to Employee’s estate should his employment cease
due to death.
SECTION VIII.
COMPLETE AGREEMENT
This
Agreement contains the complete agreement concerning the employment arrangement
between the parties hereto and shall, as of the effective date hereof, supersede
all other agreements between the parties, including all other employment
agreements. The parties hereto stipulate that neither of them has made any
representation with respect to the subject matter of this Agreement or any
representations including the execution and delivery hereof, except such
representations as are specifically set forth herein and each of the parties
hereto acknowledges that he or it has relied on his or its own judgment in
entering into this Agreement. The parties hereto further acknowledge that any
payments or representations that may have heretofore been made by either of them
to the other are of no effect and that neither of them has relied thereon in
connection with his or its dealings with the other.
SECTION IX.
WAIVER; MODIFICATION
The
waiver by either party of a breach or violation of any provision of this
Agreement shall not operate as, or be construed to be, a waiver of any
subsequent breach hereof. No waiver or modification of this Agreement or of any
covenant, condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding or litigation between the parties hereto arising out of, or
affecting, this Agreement, or the rights or obligations of the parties
hereunder, unless such waiver or modification is in writing, duly executed as
aforesaid, and the parties further agree that the provisions of this Section IX
may not be waived except as herein set forth.
SECTION X.
SEVERABILITY
All
agreements and covenants contained herein are severable, and in the event any
one of them, with the exception of those contained in Sections I, III, IV, V and
VI hereof, shall be held to be invalid in any proceeding or litigation between
the parties, this Agreement shall be interpreted as if such invalid agreements
or covenants were not contained herein.
SECTION XI.
NOTICES
Any
and all notices will be sufficient if furnished in writing, sent by registered
mail to his last known residence, in case of Employee, or, in case of Employer,
to its principal office address.
SECTION XII.
REPRESENTATIONS OF EMPLOYER
The
execution of this Agreement by Employer has been approved by the Board of
Directors of Employer.
SECTION XIII.
REPRESENTATIONS OF EMPLOYEE
Employee
hereby represents to Employer that he is under no legal disability with respect
to his entering into this Agreement.
SECTION XIV.
COUNTERPARTS
This
Agreement may be executed in duplicate counterparts, each of which shall be
deemed an original and, together, shall constitute one and the same agreement,
with one counterpart being delivered to each party hereto.
SECTION XV.
BENEFIT
The
provisions of this Agreement shall extend to the successors, surviving
corporations and assigns of Employer and to any purchaser of substantially all
of the assets and business of Employer. The term “Employer” shall be deemed to
include Employer, any joint venture, partnership, limited liability company,
corporation or other juridical entity, in which Employer shall have an interest,
financial or otherwise.
SECTION XVI.
ARBITRATION
The
parties agree that any dispute arising between them related to this Agreement or
the performance hereof shall be submitted for resolution to the American
Arbitration Association for arbitration in the Dallas, Texas, office of the
Association under the then-current rules of arbitration. The Arbitrator or
Arbitrators shall have the authority to award to the prevailing party its
reasonable costs and attorneys fees. Any award of the Arbitrators may be entered
as a judgment in any court competent jurisdiction.
Notwithstanding
the provisions contained in the foregoing paragraph, the parties hereto agree
that Employer may, at its election, seek injunctive or other equitable relief
from a court of competent jurisdiction for a violation or violations by Employee
of the existing Confidentiality Agreement.
SECTION XVII.
LEGAL REPRESENTATION
Employer
and Employee both acknowledge that each has utilized separate legal counsel with
respect to this Agreement. Specifically, Employee acknowledges that the law firm
of Xxxxxx & Xxxxxx has drafted this Agreement on behalf of Employer.
EMPLOYEE IS ADMONISHED TO SEEK HIS OWN LEGAL COUNSEL.
SECTION XVIII.
GOVERNING LAW
It
is the intention of the parties hereto that this Agreement and the performance
hereunder and all suits and special proceedings hereunder be construed in
accordance with and under and pursuant to the laws of the State of Delaware, and
that, in any action, special proceeding or other proceeding that may be brought
arising out of, in connection with or by reason of this Agreement, the laws of
the State of Delaware shall be applicable and shall govern to the exclusion of
the law of any other forum, without regard to the jurisdiction in which any such
action or special proceeding may be instituted.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
first above written.
By:
/s/ XXXX X. XXXXXXXXXXX
Xxxx
X. Xxxxxxxxxxx
President
/s/
XXXXX XXXXXXXX
Xxxxx
Xxxxxxxx, individually
Address
of Employee:
_______________________________
_______________________________
_______________________________
Exhibit
IV
Form of
Indemnity Agreement
INDEMNITY
AGREEMENT
THIS
AGREEMENT is made and entered into as of the 14th day of April, 2009, by and
between ubroadcast, inc., a Delaware corporation (the “Corporation”), and Xxxxx
Xxxxxxxx (“Agent”).
RECITALS
WHEREAS,
Agent performs a valuable service to the Corporation in his capacity as
Executive Vice President of the Corporation;
WHEREAS,
the Corporation’s bylaws (the “Bylaws”) provide for the indemnification of the
directors, officers, employees and other agents of the Corporation, including
persons serving at the request of the Corporation in such capacities with other
corporations or enterprises, as authorized by the Delaware General Corporation
Law (the “GCL”);
WHEREAS,
the Bylaws and the GCL, by their non-exclusive nature, permit contracts between
the Corporation and its agents, officers, employees and other agents with
respect to indemnification of such persons; and
WHEREAS, in
order to induce Agent to continue to serve as Executive Vice President of the
Corporation, the Corporation has determined and agreed to enter into this
Agreement with Agent;
NOW,
THEREFORE, in consideration of Agent’s continued service as Executive Vice
President of the Corporation after the date hereof, the parties hereto agree as
follows:
AGREEMENT
1. SERVICES
TO THE CORPORATION. Agent will serve, at the will of the Corporation or under
separate contract, if any such contract exists, as a director, officer or other
fiduciary of an affiliate of the Corporation (including any employee benefit
plan of the Corporation) faithfully and to the best of his ability so long as he
is duly elected and qualified in accordance with the provisions of the Bylaws or
other applicable charter documents of the Corporation or such affiliate;
provided, however, that Agent may at any time and for any reason resign from
such position (subject to any contractual obligation that Agent may have assumed
apart from this Agreement) and that the Corporation or any affiliate shall have
no obligation under this Agreement to continue Agent in any such
position.
2. INDEMNITY
OF AGENT. The Corporation hereby agrees to hold harmless and indemnify Agent to
the fullest extent authorized or permitted by the provisions of the Bylaws and
the GCL, as the same may be amended from time to time (but, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than the Bylaws or the GCL permitted prior to adoption of such
amendment), as follows:
(a) against
any and all expenses (including attorneys’ fees), witness fees, damages,
judgments, fines and amounts paid in settlement and any other amounts that Agent
becomes legally obligated to pay because of any claim or claims made against him
in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, arbitrational, administrative or
investigative (including an action by or in the right of the Corporation) to
which Agent is, was or at any time becomes a party, or is threatened to be made
a party, by reason of the fact that Agent is, was or at any time becomes a
director, officer, employee or other agent of Corporation, or is or was serving
or at any time serves at the request of the Corporation as a director, officer,
employee or other agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise; and
(b) otherwise
to the fullest extent as may be provided to Agent by the Corporation under the
non-exclusivity provisions of the GCL and the Bylaws.
3. LIMITATIONS
ON ADDITIONAL INDEMNITY. No indemnity pursuant to Section 2 hereof shall be paid
by the Corporation:
(a) on
account of any claim against Agent solely for an accounting of profits made by
Agent in violation of Section 16 of the Securities Exchange Act of 1934 and
amendments thereto or similar provisions of any federal, state or local
statutory law;
(b) on
account of Agent’s conduct that is established by a final judgment as knowingly
fraudulent or deliberately dishonest or that constituted willful
misconduct;
(c) on
account of Agent’s conduct that is established by a final judgment as
constituting a breach of Agent’s duty of loyalty to the Corporation or resulting
in any personal profit or advantage to which Agent was not legally
entitled;
(d) for
which payment is actually made to Agent under a valid and collectible insurance
policy or under a valid and enforceable indemnity clause, bylaw or agreement,
except in respect of any excess beyond payment under such insurance, clause,
bylaw or agreement;
(e) if
indemnification is not lawful (and, in this respect, both the Corporation and
Agent have been advised that the Securities and Exchange Commission believes
that indemnification for liabilities arising under the federal securities laws
is against public policy and is, therefore, unenforceable and that claims for
indemnification should be submitted to appropriate courts for adjudication);
or
(f) in
connection with any proceeding (or part thereof) initiated by Agent, or any
proceeding by Agent against the Corporation or its directors, officers,
employees or other agents, unless (i) such indemnification is expressly required
to be made by law, (ii) the proceeding was authorized by the Board of Directors
of the Corporation, (iii) such indemnification is provided by the Corporation,
in its sole discretion, pursuant to the powers vested in the Corporation under
the GCL, or (iv) the proceeding is initiated pursuant to Section 8
hereof.
4. CONTINUATION
OF INDEMNITY. All agreements and obligations of the Corporation contained herein
shall continue during the period Agent is a director, officer, employee or other
agent of the Corporation (or is or was serving at the request of the Corporation
as a director, officer, employee or other agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise)
and shall continue thereafter so long as Agent shall be subject to any possible
claim or threatened, pending or completed action, suit or proceeding, whether
civil, criminal, arbitrational, administrative or investigative, by reason of
the fact that Agent was serving in the capacity referred to herein.
5. PARTIAL
INDEMNIFICATION. Agent shall be entitled under this Agreement to indemnification
by the Corporation for a portion of the expenses (including attorneys’ fees),
witness fees, damages, judgments, fines and amounts paid in settlement and any
other amounts that Agent becomes legally obligated to pay in connection with any
action, suit or proceeding referred to in Section 2 hereof even if not entitled
hereunder to indemnification for the total amount thereof, and the Corporation
shall indemnify Agent for the portion thereof to which Agent is
entitled.
6. NOTIFICATION
AND DEFENSE OF CLAIM. Not later than thirty (30) days after receipt by Agent of
notice of the commencement of any action, suit or proceeding, Agent will, if a
claim in respect thereof is to be made against the Corporation under this
Agreement, notify the Corporation of the commencement thereof; but the omission
so to notify the Corporation will not relieve it from any liability which it may
have to Agent otherwise than under this Agreement. With respect to any such
action, suit or proceeding as to which Agent notifies the Corporation of the
commencement thereof:
(a) the
Corporation will be entitled to participate therein at its own
expense;
(b) except
as otherwise provided below, the Corporation may, at its option and jointly with
any other indemnifying party similarly notified and electing to assume such
defense, assume the defense thereof, with counsel reasonably satisfactory to
Agent. After notice from the Corporation to Agent of its election to assume the
defense thereof, the Corporation will not be liable to Agent under this
Agreement for any legal or other expenses subsequently incurred by Agent in
connection with the defense thereof except for reasonable costs of investigation
or otherwise as provided below. Agent shall have the right to employ separate
counsel in such action, suit or proceeding but the fees and expenses of such
counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of Agent unless (i) the employment of
counsel by Agent has been authorized by the Corporation, (ii) Agent shall have
reasonably concluded, and so notified the Corporation, that there is an actual
conflict of interest between the Corporation and Agent in the conduct of the
defense of such action or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the fees
and expenses of Agent’s separate counsel shall be at the expense of the
Corporation. The Corporation shall not be entitled to assume the defense of any
action, suit or proceeding brought by or on behalf of the Corporation or as to
which Agent shall have made the conclusion provided for in clause (ii) above;
and
(c)
the Corporation shall not be liable to indemnify Agent under this Agreement for
any amounts paid in settlement of any action or claim effected without its
written consent, which shall not be unreasonably withheld. The Corporation shall
be permitted to settle any action except that it shall not settle any action or
claim in any manner which would impose any penalty or limitation on Agent
without Agent’s written consent, which may be given or withheld in Agent’s sole
discretion.
7. EXPENSES.
The Corporation shall advance, prior to the final disposition of any proceeding,
promptly following request therefor, all expenses incurred by Agent in
connection with such proceeding upon receipt of an undertaking by or on behalf
of Agent to repay said amounts if it shall be determined ultimately that Agent
is not entitled to be indemnified under the provisions of this Agreement, the
Bylaws, the GCL or otherwise.
8. ENFORCEMENT.
Any right to indemnification or advances granted by this Agreement to Agent
shall be enforceable by or on behalf of Agent in any court of competent
jurisdiction if (i) the claim for indemnification or advances is denied, in
whole or in part, or (ii) no disposition of such claim is made within ninety
(90) days of request therefor. Agent, in such enforcement action, if successful
in whole or in part, shall be entitled to be paid also the expense of
prosecuting his claim. It shall be a defense to any action for which a claim for
indemnification is made under Section 3 hereof (other than an action brought to
enforce a claim for expenses pursuant to Section 8 hereof, provided that the
required undertaking has been tendered to the Corporation) that Agent is not
entitled to indemnification because of the limitations set forth in Section 4
hereof. Neither the failure of the Corporation (including its Board of Directors
or its shareholders) to have made a determination prior to the commencement of
such enforcement action that indemnification of Agent is proper in the
circumstances, nor an actual determination by the Corporation (including its
Board of Directors or its shareholders) that such indemnification is improper
shall be a defense to the action or create a presumption that Agent is not
entitled to indemnification under this Agreement or otherwise.
9. SUBROGATION.
In the event of payment under this Agreement, the Corporation shall be
subrogated to the extent of such payment to all of the rights of recovery of
Agent, who shall execute all documents required and shall do all acts that may
be necessary to secure such rights and to enable the Corporation effectively to
bring suit to enforce such rights.
10. NON-EXCLUSIVITY
OF RIGHTS. The rights conferred on Agent by this Agreement shall not be
exclusive of any other right which Agent may have or hereafter acquire under any
statute, provision of the Corporation’s Amended and Restated Certificate of
Incorporation or Bylaws, agreement, vote of shareholders or directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office.
11. SURVIVAL
OF RIGHTS.
(a) The
rights conferred on Agent by this Agreement shall continue after Agent has
ceased to be a director, officer, employee or other agent of the Corporation or
to serve at the request of the Corporation as a director, officer, employee or
other agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise and shall inure to the benefit of Agent’s
heirs, executors and administrators.
(b) The
Corporation shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business or assets of the Corporation, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Corporation
would be required to perform if no such succession had taken place.
12. SEPARABILITY.
Each of the provisions of this Agreement is a separate and distinct agreement
and independent of the others, so that if any provision hereof shall be held to
be invalid for any reason, such invalidity or unenforceability shall not affect
the validity or enforceability of the other provisions hereof. Furthermore, if
this Agreement shall be invalidated in its entirety on any ground, then the
Corporation shall nevertheless indemnify Agent to the fullest extent provided by
the Bylaws, the GCL or any other applicable law.
13. ARBITRATION.
The parties agree that any dispute arising between them related to this
Agreement or the performance hereof shall be submitted for resolution to the
American Arbitration Association for arbitration in the San Diego, California,
office of the Association under the then-current rules of arbitration. The
Arbitrator or Arbitrators shall have the authority to award to the prevailing
party its reasonable costs and attorneys fees. Any award of the Arbitrators may
be entered as a judgment in any court competent jurisdiction.
14. GOVERNING
LAW. This Agreement shall be interpreted and enforced in accordance with the
laws of the State of Delaware.
15. AMENDMENT
AND TERMINATION. No amendment, modification, termination or cancellation of this
Agreement shall be effective unless in writing signed by both parties
hereto.
16. IDENTICAL
COUNTERPARTS. This Agreement may be executed in one or more counterparts, each
of which shall for all purposes be deemed to be an original but all of which
together shall constitute but one and the same Agreement. Only one such
counterpart need be produced to evidence the existence of this
Agreement.
17. HEADINGS.
The headings of the sections of this Agreement are inserted for convenience only
and shall be deemed to constitute part of this Agreement or to affect the
construction hereof.
18. NOTICES.
All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) upon delivery if
delivered by hand to the party to whom such communication was directed or (ii)
upon the third business day after the date on which such communication was
mailed if mailed by certified or registered mail with postage prepaid:
(a) If
to Agent, at the address indicated on the signature page hereof; and
(b) If
to the Corporation, to: ubroadcast, inc., 1600 Xxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000, or to such other address as may have been furnished to
Agent by the Corporation.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the day and year first above written.
By:
/s/ XXXX X. XXXXXXXXXXX
Xxxx
X. Xxxxxxxxxxx
President
AGENT:
/s/
XXXXX XXXXXXXX
Xxxxx
Xxxxxxxx, individually
Address
of Agent:
________________________
________________________
________________________
Exhibit
VI(A)
Form of
Confidentiality Agreement
April 14, 2009
1600 Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Re: Confidentiality
Agreement
Gentlemen:
In connection with the execution of an
employment agreement (the "Employment Agreement") between the undersigned and
ubroadcast, inc. (together with affiliates, the "Company"), the Company will
furnish to the undersigned certain information concerning its business,
financial position, operations, business contacts, assets and liabilities, as
well as other proprietary information. As a condition to such information's
being furnished to the undersigned and as a condition to the undersigned's
entering into an employment agreement with the Company, the undersigned agrees
to treat any information concerning the Company (whether prepared by the
Company, its advisors, or otherwise, and irrespective of the form of
communication) which is furnished to the undersigned now or in the future by or
on behalf of the Company (together with the material described below, herein
collectively referred to as the "Confidential Material") in accordance with the
provisions of this letter agreement, and to take or abstain from taking certain
other actions hereinafter set forth.
The undersigned understands that the term
"Confidential Material" also includes all notes, analysis, compilations,
studies, interpretations or other documents prepared by the Company or its
representatives which contain, reflect or are based upon, in whole or in part,
the information furnished to the undersigned. The term "Confidential Material"
does not include information which (A) is or becomes generally available to the
public other than as a result of a disclosure by the undersigned, or (B) was
lawfully within the undersigned's possession prior to its being furnished to the
undersigned by or on behalf of the Company, provided that the source of such
information was not known by the undersigned to be bound by a confidentiality
agreement with, or other contractual, legal or fiduciary obligation of
confidentiality to, the Company or any other party with respect to such
information, or (C) is disclosed to the undersigned by a third party, provided
that such third party was not known by the undersigned to be bound by a
confidentiality agreement with, or other contractual, legal or fiduciary
obligation of confidentiality to, the Company or any other party with respect to
such information.
The undersigned hereby agrees that he will use
the Confidential Material solely in connection with the undersigned's
performance of his duties under the employment agreement, that the Confidential
Material will be kept confidential and that the undersigned will not disclose
any of the Confidential Material in any manner whatsoever.
In the event that the undersigned is requested
or required (by oral questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Confidential Material, the undersigned
will provide the Company with prompt written notice of any such request or
requirement so that the Company may seek a protective order or other appropriate
remedy and/or waive compliance with the provisions of this letter agreement. If,
in the absence of a protective order or other remedy or the receipt of a waiver
by the Company, the undersigned is, nonetheless, in the opinion of counsel,
legally compelled to disclose Confidential Material, the undersigned may,
without liability hereunder, disclose only that portion of the Confidential
Material specifically required by an order of Court. Additionally, the
undersigned shall make every reasonable effort and take every reasonable action,
including, without limitation, by cooperating with the Company, to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Confidential Material.
Upon termination of the Employment Agreement or
at any time upon the request of the Company, the undersigned will promptly
deliver to the Company or certify destruction of, at the Company's direction,
all Confidential Material (and all copies thereof) furnished to the undersigned
by or on behalf of the Company pursuant hereto. All oral Confidential Material
provided to the undersigned shall continue to be held confidential hereunder.
Notwithstanding the return or destruction of the Confidential Material, the
undersigned will continue to be bound by obligations of confidentiality
hereunder.
The undersigned agrees that the Company,
without prejudice to any rights to judicial relief he may otherwise have, shall
be entitled to equitable relief, including injunctive relief and specific
performance, in the event of any breach of the provisions of this letter
agreement and that the undersigned will not oppose the granting of such relief.
The undersigned also agrees that he will not seek and agrees to waive any
requirement for the securing and posting of a bond in connection with the
Company's seeking or obtaining such relief. In the event of litigation relating
to this letter agreement, if a court of competent jurisdiction determines that
the undersigned has breached this letter agreement, then the undersigned will be
liable to pay to the Company the reasonable legal fees incurred in connection
with such litigation, including any appeal therefrom. Also, in the event a court
of competent jurisdiction determines that the undersigned has not breached this
letter agreement, then the Company will be liable to pay to the undersigned the
reasonable legal fees incurred in connection with such litigation, including any
appeal therefrom.
This letter agreement is for the benefit of the
Company, and shall be construed (both as to validity and performance) and
enforced in accordance with, and governed by, the laws of the State of Delaware
applicable to agreements made and to be performed wholly within such
jurisdiction. This letter agreement shall remain in full force and effect until
the earlier of the date that is three years from the termination of the
undersigned's employment by the Company or the date that this
agreement is terminated by the
Company.
Please confirm your agreement with the
foregoing by signing and returning one copy of this letter to the undersigned
whereupon this letter agreement shall become a binding agreement.
Very truly yours,
/s/ XXXXX XXXXXXXX
Xxxxx Xxxxxxxx
individually
AGREED AND
ACCEPTED as
of the date
first written above:
By: /s/ XXXX X. XXXXXXXXXXX
Xxxx
X. Xxxxxxxxxxx
President