Exhibit 10.29
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT ("Agreement"), is made effective as
of July 1, 2000, by and between XxxxxxxxXxxxxxx.xxx, Inc., a Nevada corporation
(the "Corporation"), InternetStudios Entertainment Finance Inc., a British
Columbia company (the "Company") and Xxxxxx Xxxxxxx ("Executive").
The parties hereby agree as follows:
1. EMPLOYMENT; TERM.
(a) The Company hereby employs Executive, and Executive hereby
accepts employment with the Company, upon the terms and conditions contained in
this Agreement. The term of Executive's employment hereunder (the "Employment
Period") shall commence on July 1, 2000 (the "Effective Date") and shall
continue for a period of three (3) years from and after the Effective Date,
unless sooner terminated as hereinafter provided.
(b) The Employment Period may be extended for two (2)
successive one year periods by mutual written agreement of the parties hereto.
If either party intends not to renew this Agreement upon the expiration of the
Employment Period then in effect, such party shall give the other party notice
of such intention not less than ninety (90) days prior to the expiration of such
Employment Period.
(c) Should the Employment Period then in effect be terminated
by reason of discontinuation of the Company's business, Executive shall be
entitled to not less than six (6) months notice of the Company's intention and
upon conclusion of the Executive's Employment Period, any non competition
restrictions provided for in this Agreement shall be void.
2. DUTIES.
(a) During the Employment Period, Executive shall serve as the
President of the Company (or in such other capacity as is mutually agreed upon
from time to time), with the duties and, subject to the terms of this Agreement,
powers, customarily associated with such position, at its principle place of
business in the Vancouver area. Executive shall report directly to the Board of
Directors of the Corporation (the "Board"). Executive shall faithfully perform
for the Company the duties of Executive's office and such other duties as may be
designated from time to time by the Board of Directors of the Corporation
consistent with Executive's position as the President (or in such other capacity
as is mutually agreed upon from time to time). Subject to Section 2(b) below,
Executive shall devote substantially all of Executive's business time and effort
to the performance of Executive's duties to the Company hereunder.
(b) Notwithstanding anything to the contrary contained in
Section 2(a) above, Executive shall be permitted to engage in the management of
Executive's personal investments and affairs, provided that such activities do
not, individually or in the aggregate, materially interfere or conflict with
Executive's duties and responsibilities to the Company, as determined by the
Board.
3. COMPENSATION.
(a) The Company shall pay to Executive an initial salary at an
annual rate of Cdn.$260,000. The salary payable pursuant to this Section 3 (the
"Base Salary") shall be payable in accordance with the Company's payroll
practices, as in effect from time to time. The Base Salary shall be subject to a
review at the conclusion of each year of the term of this Agreement and, as a
result thereof, may be increased (but not decreased) at the sole discretion of
the Board. The base salary paid to you shall be subject to deduction of the
amounts required by law to be deducted and those authorized by you.
(b) In addition the Company shall pay to Executive an
additional amount equal to 10 percent of the pre-tax profit from the Company
less the Base Salary for a given year. The calculation for such bonus shall take
into account the allocations of revenue made between the Company and the
Corporation so as to maximize the revenues of the Corporation, and such revenues
shall be added back into the bonus calculation. Such bonus shall be paid
annually within forty-five (45) days from the anniversary of the commencement of
Executive's employment.
(c) In addition to Executive's Base Salary, the Company may
grant to Executive a bonus or bonuses as further compensation and in special
recognition of Executive's services to the Company. Any such bonus or bonuses
may be granted at the sole discretion of the Board and at such times and in such
manner as the Board may deem appropriate. The Company shall no less frequently
than annually consider the propriety of a discretionary bonus.
(d) In addition, while the Executive is employed or within a
period of twelve (12) months from the date of the Executive's termination from
employment, the Company or the Corporation shall pay to the Executive an
additional amount of 10% of the sale amount of the Company in excess of the
Company's retained earning in the event that the Company is sold.
4. STOCK OPTION GRANT. Executive shall be granted an employee stock
option from the Corporation's 1999 Non-US Stock Option Plan to purchase 150,000
shares of the Corporation at an exercise price equal to the fair market value of
the shares of the Corporation on the Commencement Date, such options to vest at
the rate of 1/24 of such shares per month. As a senior member of the
Corporation's management, Executive shall be entitled to participate further in
the Corporation's 2000 Non-U.S. stock option plan, if instituted, at a level
consistent with the other key executives of the Corporation, subject to the
discretion of the Board or its duly appointed Option Committee.
5. EXPENSES; BENEFITS.
(a) During the Employment Period, the Company agrees promptly
to reimburse Executive, in accordance with the Company's policies, for all
reasonable expenses paid or incurred by Executive in connection with the
performance of Executive's duties for the Company hereunder upon presentation of
evidence in form of receipts satisfactory to the Company substantiating claimed
expenditures.
(b) During the Employment Period, Executive shall be entitled
to the number of paid vacation days in each calendar year determined by the
Company from time to time for its
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senior executive officers, but not less than 20 days in any calendar year
(prorated in any calendar year during which the Executive is employed under this
Agreement for less than the entire year such in accordance with the number of
days in such calendar year during which he is also employed). Subject to the
preceding sentence, as a senior executive of the Company the Executive shall be
entitled to customary flexibility in using such vacation time without strict
regard to the actual accrual of vacation. Executive shall also be entitled to
all paid holidays given to the Company's senior executive officers.
(c) During the Employment Period, Executive shall be entitled
to participate in and enjoy the benefits of any health, life, disability,
retirement, pension, profit-sharing, group insurance, or other similar plan or
plans which may be instituted by the Company for the benefit of its senior
executive staff employees generally, upon such terms as may be therein provided.
Company will reimburse employee for expenses of medical, dental and vision
insurance covering both employee and dependents until such date as Company
provides such coverage through a company plan.
(d) The Company shall pay to the Executive on a
non-accountable basis, a fixed sum of Cdn.$900 per month as an automobile
allowance. Such payment shall be subject to any required deductions and
withholdings.
(e) The Company shall pay the Executive's relocation expenses
from Toronto, Ontario to Vancouver, British Columbia up to the amount of
Cdn.$75,000 upon presentation of evidence in form of receipts satisfactory to
the Company substantiating claimed expenditures. In the event the relocation
expenses are less than $75,000, the Company shall pay the Executive the
difference as a signing bonus.
(f) Executive will be provided with, or reimbursed for, the
following business-related equipment and services: Laptop computer, cell
phone/usage, Palm computer and high speed Internet access.
(g) Executive will be reimbursed for parking expenses.
6. TERMINATION. Executive's employment hereunder may be terminated by
the Company and the Corporation, only as follows:
(a) Automatically in the event of the death of Executive;
(b) At the option of the Company, by written notice to
Executive upon the occurrence of any one or more of the following events:
(i) any action by Executive constituting malfeasance,
fraud, embezzlement or dishonesty in the course of Executive's
employment hereunder;
(ii) any conviction of or guilty plea by Executive
involving an indictable offence or crime involving moral turpitude;
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(iii) gross neglect or willful refusal by Executive
to perform Executive's duties hereunder for a period of ten (10) days
following notice thereof by the Company;
(iv) failure or refusal by Executive to comply with
any valid and legal directive of the Board consistent with Executive's
position hereunder; or
(v) a breach by Executive of any material obligation
under this Agreement, if such breach is not curable or, if curable, is
not cured within thirty (30) days after written notice thereof by the
Company to Executive.
(c) At the option of Executive, by written notice to the
Company at any time upon the occurrence of any of the following events unless,
in the case of subsections (i), (ii) or (iii), the event occurs with Executive's
express prior written consent:
(i) the Company's assignment to Executive of any
title, duties, responsibilities or status with the Company that, when
compared to Executive's duties, responsibilities and status with the
Company immediately prior thereto, are inconsistent, degrading to
Executive or inconsistent with Executive's qualifications and if (a)
Executive thereafter notifies the Company in writing of the fact that
the Employee believes such has occurred, describing with reasonable
particularity the facts upon which such conclusion is based and (b) the
Company fails, within seven (7) days following its receipt of such
notice, to reassign to Employee duties and responsibilities
substantially consistent with those described in Section 2 hereof;
(ii) any failure by the Company to effect the
assumption of this Agreement by any successor or assign of the Company;
(iii) Executive's relocation to any place other than
the primary location at which Executive performs Executive's duties as
of the Effective Date;
(iv) within one hundred twenty (120) days after
Executive becomes aware of the occurrence of a material breach of any
material obligation under this Agreement by the Company if such breach
is not curable or, if curable, is not cured within thirty (30) days
after written notice thereof by Executive to the Company;
(v) within thirty (30) days if the Company shall have
failed to pay Executive the Base Salary in accordance with Section 3
and such failure shall not have been cured within seven (7) days of
such failure; or
(d) The Company may terminate this Agreement at any time
without cause, subject to the Company's obligations under Section 7(c).
(e) Any termination by the Company or the Executive pursuant
to this Section shall be effected by written notice of termination
given to the other, and such termination shall be effective upon the
giving of such notice.
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7. SEVERANCE COMPENSATION UPON TERMINATION.
(a) In the event of the Company's termination of Executive's
employment hereunder for any reason, the Company shall have no liability or
obligation to Executive other than as specifically set forth in this Section 7.
(b) Upon the termination by the Company of Executive's
employment with the Company hereunder pursuant to Section 6(a), or 6(b),
Executive shall not be entitled to severance compensation; provided, however,
Executive (or Executive's heirs or legal representatives) shall be entitled to
receive any and all other benefits to which Executive shall be entitled pursuant
to the terms of any employee benefit plans, stock option plans or other
agreements of the Company in which Executive is a participant or to which
Executive is a party.
(c) Upon the termination of Executive's employment hereunder
either by the Executive pursuant to Section 6(c), or by the Company pursuant to
Section 6(d) or for any reason other than pursuant to Sections 6(a) or 6(b),
then the following shall apply as severance compensation payable by the Company
or the Corporation in lieu of any further salary payments to Executive and the
continuation of any Company or Corporation paid benefits except as set out
herein, for periods subsequent to the date of the termination of Executive's
employment (the "Date of Termination"):
(i) Executive shall be entitled to receive a lump sum
severance payment equal to one and one-half times Executive's Base
Salary in effect on the Date of Termination;
(ii) Executive shall receive any accrued and unpaid
vacation pay or other benefits to which Executive has become entitled
prior to the Date of Termination;
(iii) Executive shall receive any accrued and unpaid
Bonus to which Executive has or would have, become entitled to for
employment prior to the Date of Termination; and
(iv) all of Executive's stock options with respect to
the Corporation's and the Company's stock shall be granted and become
immediately and fully vested and exercisable and shall continue to be
exercisable pursuant to their terms and the terms of applicable stock
option plan.
(d) The severance compensation provided for in this Section 7
shall be paid in a lump sum eight (8) days after Executive signs and returns to
the Company (i) a Confidential Severance Agreement in the form of Exhibit "A"
hereto ("Severance Agreement"), and (ii) a letter in the form of Exhibit "B"
hereto confirming that Executive did not exercise a right of rescission as
provided for in the Severance Agreement. In consideration of the payments
provided for in this Agreement, Executive expressly waives any rights under any
formal or informal, written or unwritten, severance policy, severance program or
severance plan that would otherwise provide benefits or payments to Executive
because of Executive's termination of employment with the Company. Executive
understands that all payments made by the Company under this Agreement may be
subject to withholding and standard payroll deductions for federal and
provincial taxes.
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(e) Upon the termination of Executive's employment hereunder
for any reason, Executive shall immediately surrender to the Company all notes,
data, sketches, drawings, manuals, documents, records, data bases, programs,
blueprints, memoranda, specifications, customer lists, financial reports,
equipment except for the equipment set out in paragraph 5(f) which shall become
the property of the Executive, and all other physical forms of expression
incorporating or containing any Confidential Information (as defined in Section
8 hereof), it being distinctly understood that all such writings, physical forms
of expression and other things are exclusive property of the Company.
(f) If the Company terminates Without Cause the Executive's
employment under this Agreement, or if the Executive terminates such Employment
For Cause pursuant to Section 6(c), then upon either such event the Company or
the Corporation shall continue at its sole expense to provide the Executive and
his family with such medical, dental, vision and life insurance coverage as the
Company would be obligated to provide hereunder if the Executive had remained
employed pursuant to this Agreement, for a period of twelve (12) months
following the termination of Executive's employment;
8. CONFIDENTIAL INFORMATION.
(a) Executive recognizes and acknowledges that during the
course of Executive's employment with the Company, Executive shall have access
to Confidential Information. "Confidential Information" means all information or
material not publicly known about the Company or relating to any of its
respective products, services or any phase of its operations, business or
financial affairs which (i) gives the Company some competitive business
advantage or the opportunity of obtaining such advantage or the disclosure of
which could be detrimental to the interests of the Company; (ii) is owned by the
Company or in which the Company has an interest (including information
conceived, originated, discovered or developed in whole or in part by
Executive); and (iii) is either (A) marked "Confidential Information,"
"Proprietary Information" or other similar marking, (B) known by Executive to be
considered confidential and proprietary by the Company, or (C) from all the
relevant circumstances should reasonably be assumed by Executive to be
confidential and proprietary to the Company. Confidential Information includes,
but is not limited to, the following types of information and other information
of a similar nature (whether or not reduced to writing): trade secrets,
inventions, drawings, file data, documentation, diagrams, specifications,
know-how, processes, formulas, models, flow charts, software in various stages
of development, source codes, object codes, research and development procedures,
test results, marketing techniques and materials, marketing and development
plans, price lists, pricing policies, business plans, information relating to
customers and/or suppliers' identities, characteristics and agreements,
financial information and projections and employee files. Confidential
Information also includes any information described above which the Company
obtains from another party and which the Company treats and/or has an obligation
to treat as proprietary or designates as Confidential Information, whether or
not owned or developed by the Company. Confidential Information shall not
include any information which is or becomes (i) generally available to the
public other than as a result of disclosure in violation of this Agreement, or
(ii) generally known in the industry in which the Company is or may become
involved other than as a result of disclosure in violation of this Agreement.
(The term "Company," as used in this Section 8, means not only
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XxxxxxxxXxxxxxx.xxx, Inc., but also any company, partnership or entity which,
directly or indirectly, controls, is controlled by or is under common control
with XxxxxxxxXxxxxxx.xxx, Inc.)
(b) Both during the Employment Period and at all times
thereafter, all Confidential Information which Executive may obtain during the
Employment Period, or may create prior to the end of the Employment Period will
be held confidential by Executive, and Executive will not (nor will Executive
assist any other person to do so), directly or indirectly, (i) reveal, report,
publish or disclose such Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever
(other than in the course of carrying out Executive's duties hereunder or as
expressly authorized by the Company), (ii) render any services to any person,
firm, corporation, association or other entity to whom any such Confidential
Information, in whole or in part, has been disclosed or is threatened to be
disclosed by or at the instance of Executive, or (iii) use such Confidential
Information except for the benefit of the Company and in the course of
Executive's employment with the Company; provided, however that the foregoing
will not apply to the extent Executive is required to disclose any Confidential
Information by applicable law or legal process so long as Executive promptly
notifies the Company of such pending disclosure and consults with the Company
prior to such disclosure concerning the advisability of seeking a protective
order or other means of preserving the confidentiality of the Confidential
Information.
(c) All memoranda, notes, lists, records and other documents
(and all copies thereof) constituting Confidential Information made or compiled
by Executive or made available to Executive during the Employment Period shall
be the Company's property, shall be kept confidential in accordance with the
provisions of this Section 8 and shall be delivered to the Company at any time
on request and in any event upon the termination of Executive's employment with
the Company for any reason.
9. COVENANT AGAINST COMPETITION; NON-SOLICITATION. Executive covenants
and agrees that:
(a) During the Non-Compete Period (as hereinafter defined),
Executive shall not, directly or indirectly, in any Geographic Area (as
hereinafter defined): (i) engage for Executive's own account in any business
directly competitive with the Company Business (as hereinafter defined); (ii)
render ANY services that are the same to those provided by the Executive while
employed with the Company, in any capacity to any person or entity (other than
the Company or its Affiliates) engaged in any business directly competitive with
the Company Business; or (iii) acquire an interest in any person or entity
engaged in any business directly or competitive with the Company Business (other
than the Company) as a partner, shareholder, director, officer, employee,
principal, manager, member, agent, trustee, consultant or in any other
relationship or capacity; provided, however, Executive may own, directly or
indirectly, solely as a passive investment, securities of any such entity which
are traded on any national securities exchange if Executive (A) is not a
controlling person of, or a member of a group which controls, such entity, and
(B) does not, directly or indirectly, own five percent or more of any class of
securities of such entity.
(b) During the Non-Compete Period, Executive shall not,
without the prior written consent of the Company, directly or indirectly,
knowingly solicit or encourage any employee of the Company or any of its
Affiliates to leave the employment of the Company or
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any of its Affiliates within one year of the termination of such employee's
employment with the Company or any of its Affiliates, or solicit any customer,
client or account of the Company for business directly competitive with the
Company Business.
(c) During any portion of the Non Compete Period during which
Executive is not employed by the Company, Executive shall not, in any Geographic
Area, directly or indirectly, knowingly solicit or encourage any customer or
client of the Company to engage, for business directly competitive with the
Company Business, the services of Executive or any person or entity (other than
the Company) in which Executive is a partner, shareholder, director, officer,
employee, principal, member, manager, agent, trustee, consultant or engaged in
any other relationship or capacity;
(d) If any provision of Sections 8 or 9 (the "Restrictive
Covenants") are held to be unenforceable because of the scope, duration, area of
its applicability or otherwise, it is the intention of the parties that the
court making such determination shall modify such scope, duration or area, or
all of them, and that such provision shall then be applicable in such modified
form. Executive hereby waives any and all right to attack the validity of the
Restrictive Covenants on the grounds of breadth of their geographic scope or the
length of their term.
(e) As used herein:
(i) "Affiliate" shall mean any entity directly or
indirectly controlling, controlled by, or under common control with the
Company and any entity in which the Company is a general partner,
member, manager or holder of greater than a 10% common equity,
partnership or membership interest.
(ii) "Company Business" shall mean the financing of
feature films and television by use of the Internet in conjunction with
and in support of on-line sales of filmed entertainment.
(iii) "Geographic Area" shall mean the countries of
the world where the Company has engaged in Company Business.
(iv) "Non-Compete Period" shall mean the period of
one year following the termination, pursuant to Sections 6(b) and 6(d)
herein, of Executive's employment with the Company. Notwithstanding
the foregoing, the Non-Compete Period shall end immediately if, during
the twelve-month period following the Executive's termination from
employment, upon any resolution being passed or any action or
proceeding is taken with respect to the liquidation, dissolution or
wind up, of the Company or the Corporation.
10. ENFORCEMENT BY INJUNCTION. Since the Company will be irreparably
damaged if the provisions of Sections 8 or 9 are not specifically enforced, the
Company shall be entitled to (i) an injunction or any other appropriate decree
of specific performance (without the necessity of posting any bond or other
security in connection therewith) restraining any violation or non-fulfillment
of Executive's covenants under Sections 8 or 9, (ii) damages in an amount equal
to all compensation, profits, monies, accruals, increments or other benefits
derived or received by Executive (or any associated party deriving such
benefits) as a result of any such breach of
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Executive's covenants under Sections 8 or 9. Such remedies shall not be
exclusive and shall be in addition to any other remedy, at law or in equity,
which the Company may have for any breach or threatened breach of Sections 8 or
9 by Executive.
11. NO OBLIGATION TO MITIGATE DAMAGES; NO EFFECT ON OTHER CONTRACTUAL
RIGHTS.
(a) Executive shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment provided for under
this Agreement be reduced by any compensation earned by Executive as the result
of employment by another employer after the termination of Executive's
employment, or otherwise.
(b) The provisions of this Agreement, and any payment provided
for hereunder, shall not reduce any amounts otherwise payable, or in any way
diminish Executive's existing rights, or rights which would accrue solely as a
result of the passage of time, under any benefit or incentive plan or
arrangement, plan or arrangement to receive securities of the Company,
employment agreement or other contract, plan or arrangement of the Company.
12. SUCCESSORS.
(a) The Company and the Corporation will require any successor
or assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all the business and/or assets of the Company
or the Corporation by agreement in form and substance satisfactory to Executive,
to expressly, absolutely and unconditionally assume and agree to perform this
Agreement in the same manner and to the same extent that the Company and the
Corporation would be required to perform it if no such succession or assignment
had taken place. Any failure of the Company or the Corporation to obtain such
agreement prior to the effectiveness of any such succession or assignment shall
be a material breach of this Agreement and shall entitle Executive to terminate
Executive's employment as provided for in Section 6 hereof. As used in this
Agreement, the "Company" and the "Corporation" shall mean the Company and the
Corporation as hereinbefore defined and any successor or assign to its business
and/or assets as aforesaid which executes and delivers the agreement provided
for in this Section 12 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
Executive should die while any amounts are still payable to Executive hereunder,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to Executive's devisee, legatee, or other
designee or, if there be no such designee, to Executive's estate.
(c) In the event of a liquidation of the Company or the
Corporation, the payments to the Executive provided for hereunder shall be made
forthwith and before any property or asset of the Company is distributed to any
holder of Common Stock.
13. NOTICES. Any and all notices or other communications required or
permitted to be given under any of the provisions of this Agreement shall be in
writing and shall be deemed to
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have been duly given when personally delivered or mailed by first class
registered mail, return receipt requested, or by commercial courier or delivery
service, or by facsimile, addressed to the parties at the addresses set forth
below their signatures hereto (or at such other address as any party may specify
by notice to all other parties given as aforesaid).
14. INDEMNIFICATION TO EMPLOYEE. The Company shall, to the maximum
extent permitted by law, indemnify the Executive against expenses (including
reasonable attorney's fees, judgments, claims, fines, settlements and other
amounts actually and reasonably incurred) in connection with any proceedings
arising by reason of the fact that the Executive is or was an officer,
consultant, representative, or agent of the Company and was performing his
duties in accordance with this Agreement or was acting in accordance with the
directions of the Board of Directors of the Company; provided however, that the
Company shall have no obligation to indemnify the Executive for such expenses,
judgments, claims, fines, settlements or other amounts which are finally
judicially determined to have resulted from illegal, bad faith or knowingly
fraudulent conduct on the part of the Executive or the Executive's knowing and
intentional violation of third party rights. The Company shall advance to the
Executive the expenses incurred in defending any such proceedings to the maximum
extent provided by law; provided however, that the Executive is not entitled to
indemnification in accordance with the preceding sentence. The Company's
obligations under this Section shall not cease upon termination of this
Agreement.
15. LEGAL FEES. (a) In the event that any legal action is required to
enforce Executive's rights under this Agreement, Executive, if the prevailing
party, shall be entitled to recover from the Company any expenses for attorneys'
fees and disbursements reasonably incurred by Executive and other fees and
expenses incurred by the Executive. (b) The Company shall directly pay the
attorney's fees and disbursements reasonably incurred on behalf of the Executive
in the review and execution of this Management Agreement.
16. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement (including, without limitation, any controversy
as to the arbitrability of any dispute) shall be settled exclusively by
arbitration to be held in Vancouver, British Columbia, before a single
arbitrator in accordance with the rules of the British Columbia International
Commercial Arbitration Center then in effect. Each party will bear its own fees
and expenses in connection with the arbitration and 50% of the fees and expenses
of the British Columbia International Commercial Arbitration Center and the cost
of any transcript, subject to the provisions of Section 15. Judgment may be
entered on the arbitrator's award in any court having jurisdiction, and the
parties consent to the jurisdiction of the British Columbia courts for that
purpose.
17. MISCELLANEOUS.
(a) This writing constitutes the entire agreement of the
parties with respect to the subject matter hereof and may not be modified,
amended or terminated except by a written agreement signed by all of the parties
hereto.
(b) No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by Executive and the Company. No waiver by a party hereto at any time
of any breach by another party hereto
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of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions.
(c) If any provision of this Agreement shall be held invalid
or unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render invalid or unenforceable
any other severable provision of this Agreement, and this Agreement shall be
carried out as if any such invalid or unenforceable provision were not contained
herein, unless the invalidity or unenforceability of such provision
substantially impairs the benefits of the remaining portions of this Agreement.
(d) The section headings contained herein are for the purposes
of convenience only and are not intended to define or limit the contents of said
sections.
(e) This Agreement may be executed in two or more
counterparts, all of which taken together shall be deemed one original.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia, without giving
effect to any choice or conflict of laws provision or rule that could cause the
application of the domestic substantive laws of any other jurisdiction.
(g) This Agreement shall not confer any rights or remedies
upon any person or entity other than the parties hereto and their respective
successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
XXXXXXXXXXXXXXX.XXX, INC
By:
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Name:
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Its:
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Address:
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Attn:
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INTERNETSTUDIOS ENTERTAINMENT
FINANCE INC.
By:
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Name:
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Its:
----------------------------
Address:
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Attn:
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EXECUTIVE
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Xxxxxx Xxxxxxx
Address:
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Attn:
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Exhibit 10.29
SCHEDULE "A"
CONFIDENTIAL AGREEMENT
This CONFIDENTIAL AGREEMENT ("AGREEMENT") is made in the Province of
British Columbia by and between _____________ ("EXECUTIVE") and INTERNETSTUDIOS
ENTERTAINMENT FINANCE INC., a British Columbia company (the "COMPANY").
RECITALS
A. Executive has been retained by the Company.
B. The Company and Executive are parties to that certain Management
Agreement, dated ___________, 2000 (the "MANAGEMENT AGREEMENT").
Executive's employment has been terminated under circumstances that
entitle Executive to receive certain additional compensation, benefits
and other rights pursuant to Section 7 of the Management Agreement (the
"ADDITIONAL COMPENSATION").
C. Pursuant to Section 7(e) of the Management Agreement, payment of the
Additional Compensation is conditioned upon the execution of this
Agreement by Executive.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, covenants, and provisions contained in this Agreement, the parties
agree and declare as follows:
1. TERMINATION OF EMPLOYMENT. Executive's employment is terminated
effective end of day, ________________. The parties acknowledge and agree that
Executive will not be an employee of the Company after this date,
notwithstanding Executive's continued receipt of certain sums or benefits as
described in the Management Agreement.
2. WAIVER AND RELEASE OF CLAIMS. In consideration of the payment and
receipt of the Additional Compensation, Executive waives and releases all of
Executive's existing rights to, any relief of any kind from the Company, its
affiliates, subsidiaries, parent corporations, divisions, directors, officers,
shareholders, employees, agents, attorneys, successors, and assigns
(collectively, the "COMPANY'S AFFILIATES"), including, without limitation, all
claims, demands, liabilities, obligations, causes, and causes of action of
whatever kind or nature, whether known or unknown, past or present, suspected or
unsuspected, including, without limitation, those that arise out of or that
relate to: Executive's relationship with the Company; the termination of the
employment services provided to the Company; all statements or actions of the
Company's Affiliates; all claims for wrongful discharge; all claims for relief
or other benefits under any federal, provincial, or local statute, ordinance,
regulation, or rule of decision; all claims that the Company's Affiliates
engaged in conduct prohibited on any basis under any provincial, or local
statute, ordinance, regulation, or rule of decision; and, other than claims with
respect to the Additional Compensation, all claims for wages, stock, stock
options, or other rights with respect to equity securities of the Company,
severance pay, compensation, attorney's fees, liquidated
damages, punitive damages, costs, expense reimbursements, and disbursements
(collectively "CLAIMS").
3. MUTUAL CONFIDENTIALITY.
a. GENERAL STANDARD. The parties intend that the terms and
conditions upon which this matter has been settled, including the provisions of
this Agreement ("CONFIDENTIAL INFORMATION"), will be forever treated as
confidential. Executive and the Company will not disclose Confidential
Information to any person or entity at any time, except as provided herein.
b. EXCEPTIONS.
(1) It will not be a violation of this Agreement for
Executive to disclose Confidential Information to Executive's attorneys, spouse,
accountants, or tax planners, provided that if Executive discloses Confidential
Information to any such person, Executive must simultaneously inform that person
that the person must keep the information strictly confidential and that the
person may not disclose the information to any other person without the advance
written consent of Executive and the Company. Any disclosure of Confidential
Information by any such person will be considered a disclosure by Executive.
(2) It will not be a violation of this Agreement for the
Company to disclose Confidential Information to its attorneys, auditors,
insurers, accountants, tax planners, or its affiliates, divisions, directors,
officers, shareholders, employees, representatives, other agents who have a
legitimate reason to obtain Confidential Information in the course of performing
their duties or responsibilities for the Company, others in connection with the
Company's business, as required by law, and to the extent the Company deems such
disclosure necessary or advisable in connection with it disclosures or reports
or under applicable securities laws, other laws, and accounting principles.
(3) It will not be a violation of this Agreement for a party
to give truthful testimony in response to direct questions asked pursuant to an
enforceable court order obtained after providing notice to the other party,
which order pays due regard to the concerns for confidentiality expressed by the
parties herein.
4. NON-DISPARAGEMENT. Executive will not disparage, defame, or besmirch
the reputation, character, image or services of the Company, its affiliates,
divisions, parent corporations, directors, officers, shareholders, employees or
agents. The Company and the Corporation will not disparage, defame or besmirch
the reputation, character, integrity, skill or expertise of the Executive.
5. CLAIMS INVOLVING THE COMPANY. Executive will not recommend or
suggest to any potential claimants or plaintiffs or their attorneys or agents
that they initiate claims or lawsuits against the Company or any of its
affiliates, divisions, parent corporations, directors, officers, shareholders,
employees, agents, successors, or assigns, nor will Executive voluntarily aid,
assist or cooperate with any such claims, or lawsuits; provided, however, that
this paragraph will not be
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construed to prevent Executive from giving truthful testimony in response to
direct questions asked pursuant to a lawful subpoena during any future legal
proceedings.
6. TIME TO CONSIDER AGREEMENT. Executive understands that Executive may
take twenty-one (21) calendar days to decide whether to sign this Agreement.
7. RIGHT TO REVOKE. Executive understands that Executive has the right
to revoke this Agreement for any reason within seven (7) calendar days after
Executive signs it. Executive understands that this Agreement will not become
effective or enforceable unless and until Executive has not revoked it and the
applicable revocation period has expired.
8. EXPIRATION OF OFFER. The Company's offer to Executive that is
reflected in this Agreement shall expire at 5:00 P.M. ON ____________, unless
Executive executes the Agreement and the Company receives it prior to that time,
or unless the Company revokes the offer prior to Executive's acceptance.
9. FULL COMPENSATION. The payments made and the other consideration
provided under the Management Agreement constitute full compensation for and
extinguish all of Executive's Claims including, but not limited to, all Claims
for attorneys' fees, costs, and disbursements, and all Claims for any type of
legal or equitable relief. Executive acknowledges that once the Additional
Compensation is received by the Executive, the Executive has been paid all
consultant fees and other compensation to which it was or is entitled to.
10. RETURN OF COMPANY PROPERTY. Executive agrees to promptly return to
the Company all property that belongs to the Company, including without
limitation all equipment, supplies, documents, files, computer disks, and
Executive agrees to remove from any personal computer all data files containing
Company information and return to the Company.
11. CONFIDENTIALITY AGREEMENT. Executive hereby reaffirms Executive's
obligations and commitments contained in any employment agreement and invention
and non-disclosure agreements that Executive executed.
12. NO ADMISSION OF WRONGDOING. This Agreement does not constitute an
admission that any person or entity violated any local, state or federal
ordinance, regulation, ruling, statute, rule of decision, or principle of common
law, or that any person or entity engaged in any improper or unlawful conduct or
wrongdoing. Executive will not characterize this Agreement or the payment of any
money or other consideration in accord with the Management Agreement as an
admission or indication that any person or entity engaged in any improper or
unlawful conduct or wrongdoing.
13. ACKNOWLEDGMENT OF UNDERSTANDING. Executive acknowledges that the
Company has advised Executive to consult with Executive's own attorney prior to
executing this Agreement. Executive further acknowledges that Executive has had
a full opportunity to consider this Agreement, that Executive has had a full
opportunity to ask any questions that Executive may have concerning this
Agreement, and that in deciding whether to sign this Agreement, Executive has
not relied upon any statements made by the Company or its attorneys,
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other than the statements made in this Agreement. Executive further acknowledges
that Executive has read and understands the contents of this Agreement and that
Executive executes this Agreement knowingly and voluntarily and with the
opportunity to obtain independent legal advice of Executive's own choice.
14. AUTHORITY. Executive represents and warrants that Executive has the
authority to enter into this Agreement, and that Executive has not assigned any
Claims to any person or entity.
15. INVALIDITY. In the event that a court of competent jurisdiction
determines that any provision of this Agreement is invalid, illegal, or
unenforceable in any respect, such a determination will not affect the validity,
legality, or enforceability of the remaining provisions of this Agreement, and
the remaining provisions of this Agreement will continue to be valid and
enforceable.
16. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the parties and their respective representatives,
successors, and assigns.
17. ENTIRE AGREEMENT. This Agreement and the Management Agreement
represent the entire agreement of the parties with respect to their subject
matters, and this Agreement and the Management Agreement supersede any
agreement(s) previously entered into with respect to the subject matters hereof
and thereof, except where expressly specified herein or therein. Neither party
has made any representations, warranties, inducements or oral agreements except
as expressly set forth herein and therein. The parties may not change, modify,
or rescind this Agreement except in a writing, signed by both parties. Any
attempt at oral modification of this Agreement will be void and of no effect.
18. HEADINGS. The descriptive headings of the paragraphs and
subparagraphs of this Agreement are intended for convenience only, and do not
constitute parts of this Agreement.
19. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
20. GOVERNING LAW. This Agreement will be construed in accord with, and
any dispute or controversy arising from any breach of this Agreement will be
governed by, the laws of the Province of British Columbia. In the event of any
judicial proceeding to enforce any provision of this Agreement, the prevailing
party will recover its reasonable attorneys' fees, expenses, and cost of
investigation.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates indicated at their respective signatures below.
DATED this __________ day of, _____ 2000. XXXXXX XXXXXXX
----------------------------
DATED this __________ day of, ______ 2000 INTERNETSTUDIOS
ENTERTAINMENT FINANCE INC.
By:
-------------------------
Its:
------------------------
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Exhibit 10.29
SCHEDULE "B"
Date:
-------------------------
PERSONAL AND CONFIDENTIAL
Human Resources Manager
InternetStudios Entertainment Finance Inc.
000-0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Dear _________:
This is to confirm that I have not revoked and will take no action to
revoke the Confidential Agreement that I executed on ______________ with
InternetStudios Entertainment Finance Inc.
Sincerely,
XXXXXX XXXXXXX
