EMPLOYMENT AGREEMENT
This Agreement is made and entered into by and between XXXX X.
XXXXX hereinafter referred to as "Employee," and VIDESSENCE,
INC., a California corporation, hereinafter referred to as "Employer," as
of the 31st day of December 1996.
WHEREAS, NETTER DIGITAL ENTERTAINMENT, INC. ("NDEI")
is the sole shareholder of Employer.
WHEREAS, Employee and Employer desire to set out the terms of
Employee's employment, all as more particularly set forth below.
NOW, THEREFORE, in consideration of the mutual promises of the
parties and the mutual benefits they will gain by their performances
thereof, all in accordance with the provisions hereinafter set forth:
I. Term of Employment.
a. Basic Term. Employer hereby agrees to employ Employee to
render services to Employer in the position and with the duties and
responsibilities described in Section 2 until the earlier of (i) the date five
(5) years from the date of this Agreement ("Initial Term Date"), as
extended pursuant to Section I (b); or (ii) the date this Agreement is
terminated in accordance with Section 4 (the period from the date hereof
until such date being the "Period of Employment"). Employer shall pay
Employee the compensation to which he is entitled under Section 3
through the end of the Period of Employment. Employee hereby accepts
and agrees to such hiring, engagement and employment.
b. Renewal. Subject to Section 4, Employee's employment will be
automatically renewed for an additional one (1) year period (without any
action by either party) on the Term Date and on each anniversary date
thereof, unless Employer gives written notice of termination to Employee
at least one (1) month prior to the expiration of the then-current term of
the Agreement. Employees right to terminate the Period of Employment
under this Section I (b), instead of renewing the Agreement, shall be with
or without cause.
2. Position, Duties, Responsibilities.
a. Position. Employee hereby accepts employment with Employer as
President. Employee shall devote his best efforts and his full time and
attention to the performance of the services customarily incident to such
office and to such other services as may be reasonably requested by
Employer. Employer shall use its best efforts to have Employee
appointed as a director of the Employer. Employee agrees to serve
Employer in such capacities and positions during the Period of
Employment. Employee shall be accountable to the Chief Operating
Officer of NDEI, subject to the authority of the Chairman of the
Board/Chief Executive Officer of NDEI and the Board of NDEI, and
shall have supervision and control over, and responsibility for such
management and operation of the Employer as may be delegated by the
Board of Directors of the Employer.
b. Other Activities. Except upon the prior written consent of the
Board of Directors of the Employer, Employee, during the Period of
Employment, will not (i) accept any other employment or (ii) engage,
directly or indirectly, in any other business activity (whether or not
pursued for pecuniary advantage) that is or may be competitive with, or
that might place him in a competing position to that of Employer.
3 . Compensation- Benefits, Expenses.
a. Compensation. In consideration of the services to be rendered
hereunder, Employee shall be paid a base annual salary at the rate of One
Hundred Fifty Thousand Dollars ($150,000) per year as increased under
Section 3(b), payable in equal semimonthly payments on Employer's
normal payroll dates.
b. Salary Increases. Employee is entitled to reasonable annual
increases in Employee's base salary to be established at the discretion of
the Compensation Committee of the NDEI Board of Directors.
C. Option Grant. NDEI, through Employer, its wholly-owned
subsidiary, grants to Employee options to purchase 90,000 shares of
common stock of Employer, exercisable at $3.00 per share, according to
the terms and conditions set forth in the Option Agreement, attached
hereto as Exhibit "A."
d. Other Options and Warrants. At the sole discretion of the
Compensation Committee of NDEI, the Employee shall be entitled to
participate in the granting of all options or warrants for stock and any
qualified or non-qualified stock option or bonus plans, phantom stock
plans, employee stock ownership plans or other similar plans or
arrangements established from time to time by NDEI or Employer for the
benefit of senior executive employees of Employer in the same manner
as may be established for Board members or other senior executive
employees of NDEI or Employer, as the case may be.
e. Benefits.
(1) Insurance. Employer shall provide Employee with insurance
benefits in accordance with the insurance benefits provided by Employer
to senior executive employees and shall include, but not be limited to, the
following:
(a) Health and Dental Insurance. Employer shall provide Employee
with all health, medical and dental insurance available or offered to senior
officers of NDEI and of Employer. The premium for Employee, his
spouse and his dependents who live full-time in the same house as
Employee shall be paid for by Employer. In the event Employer does not
provide group medical and dental insurance coverage, Employer shall
reimburse Employee for the reasonable premium cost Employee incurs in
obtaining such insurance coverage on an individual basis.
(b) Life Insurance. Employer shall provide Employee, at Employer
expense, with term life insurance with a minimum One Million Dollars
($1,000,000) coverage during the Period of Employment, with the
beneficiary of such insurance to be Employee's spouse or such other
beneficiary as may be lawfully designated by Employee. Employer shall
have the right at its own expense to apply for and to secure such life
insurance for the benefit of Employee or his family. Employee agrees to
submit to usual and customary medical examinations and otherwise to
cooperate with Employer in connection with the procurement of any such
insurance, or in the procurement of any additional "key man" insurance
for the benefit of Employer.
(c) Disability Insurance. Employer shall provide Employee with such
prepaid disability insurance coverage as it provides senior officers of
NDEI and of Employer. In the event Employer does not provide such
disability insurance coverage, Employer shall reimburse Employee for the
reasonable premium cost Employee incurs in obtaining such insurance
coverage on an individual basis on terms that are usual and customary in
the industry for an employee in Employee's position.
(2) Retirement Plan/Profit Sharing or Similar Plans. Employee shall be
eligible to participate in any profit sharing, pension, retirement, savings,
stock option or similar plan adopted by the Board of Directors of
Employer.
(3) Sick Leave/Disability. Employee shall be entitled to six paid sick
days per year. Unused sick days shall carry over to the next year, but
Employee shall cease accruing further sick days at any time he has
accrued six days. Employee is not entitled to cash in lieu of sick leave.
Additionally, Employee shall be eligible for any short term or long term
disability benefits that Employer may establish, on the same terms as
applicable to other senior officers of NDEI.
(4) Vacation. Employee shall earn paid vacation time at the rate of
three (3) calendar weeks per year. Unused vacation shall carry over to
the next year, but Employee shall cease accruing further vacation time at
any time he has accrued three (3) weeks of unused accrued vacation,
and shall not accrue further vacation time until using some or all of the
accrued time. Any unused vacation time shall be paid in a cash lump sum
payment promptly after Employee's termination of employment,
regardless of the reason for such termination, or at such earlier time as
required to avoid forfeiture of accrued but unused vacation time as
described above.
(5) Expenses. Employer shall reimburse Employee on a monthly basis
for receipts he submits for all reasonable and necessary travel and other
business expenses incurred by Employee in the performance of his duties
hereunder, consistent with Employees normal expense reimbursement
policy.
4. Termination of Employment. Employee's employment may only be
terminated prior to the Period of Employment upon the first to occur of
the following events:
a. Mutual Agreement. The mutual written agreement of Employer
and Employee.
b. By Death. Employee's employment will terminate automatically
on the death of Employee. Employer will pay to Employee's beneficiaries
or estate, as appropriate, the compensation to which he is entitled
pursuant to Section 3 above through the end of the day of such
termination, and thereafter Employees obligation to Employee and/or to
his beneficiaries or estate will terminate. Employee will cooperate with
Employees efforts to obtain fife insurance to reimburse Employer for its
costs of payments to Employee or his estate, if Employer chooses to
obtain insurance for such purpose.
c. By Disability. If Employee will be prevented from fully performing
his duties under this Agreement because of any illness or physical or
mental disability for a period or periods of more than ninety (90) days in
the aggregate during any calendar year or thirty (30) consecutive days in
any twelve (12) month period, then Employee's employment will
terminate on the last day of the period in which the day evidencing
incapacity occurs (i.e., the final day of the 90-day aggregate period or of
the 30-day consecutive period). Upon such termination, Employer will
continue Employee's then-current base salary for a period of six (6)
months, in semi-monthly installments of salary as would otherwise
become due. All of Employees other obligations win terminate on the
date of termination. Employee will cooperate with Employees efforts to
obtain disability insurance to reimburse Employer for its costs of such
payment, if Employer chooses to obtain disability insurance for such
purpose.
A determination of whether Employee is disabled will be made by
Employer in good faith; provided, however, that if Employee disagrees
with Employees determination in that regard and the parties are unable to
resolve the dispute between themselves, the dispute will be submitted to
arbitration in Los Angeles, California in accordance with the employment
arbitration rules of the American Arbitration Association, and the decision
of the arbitrator(s) will be final and binding.
d. By Employer with Cause. Employer may terminate this Agreement
for Cause, by majority vote of the Board. For purposes of this
Agreement "Cause" shall mean:
(i) the conviction of Employee of a felony;
(ii) the habitual neglect by Employee of his duties, following written
notice from the Board and a reasonable opportunity to demonstrate the
lack of habitual neglect;
(iii) Employee refuses or fails to act in accordance with any material
lawful direction or order by the Board of Directors of Employer;
(iv) the participation by Employee in dishonesty, criminal acts, or
frauds affecting Employer, Employer's good reputation in the community
or Employee's job performance; or
(vi) Employee materially breaches any term of this Agreement, the
Non Competition Agreement, or the Confidentiality and Nondisclosure
Agreement.
To the extent the occurrence of any of the foregoing (a "Default") is not
susceptible to cure, Employer may terminate Employee's employment
immediately. To the extent the occurrence is curable, Employee shall
have thirty (30) days after written notice from Employer to cure the
Default in the event of a termination under subsections 4(d) (ii) or (vii),
and ten (10) days in the event of a termination under subsections 4(d) (iv)
or (v). No cure period win be provided under subsection 4(d) (ii). If the
Default cannot be reasonably cured within the applicable 3 0 or 10 day
period, Employee will be afforded a reasonable extension of time
provided Employee shall have diligently and expeditiously attempted to
cure the Default within the original time period and continues to do so
during the period of the extension. Any notice of termination provided by
Employer to Employee under this Section 4(d) shall identify the events or
conduct constituting the grounds for termination with sufficient specificity
so as to enable Employee to take steps to cure the same (if susceptible to
cure).
e. By Employer Without Cause. After the Earn-Out Period (as
defined in the Merger Agreement) has ended, Employer may terminate
Employee without Cause upon five (5) days prior written notice. In the
event Employer terminates Employee's employment without cause, the
liability of Employer to Employee as a result of or in connection with such
termination, and Employee's exclusive remedy for such termination, will
be limited to payment of severance compensation consisting of payments
to be made semi-monthly to Employer's normal payroll -practices for a
period of six (6) months from date of termination. Upon such termination,
Employee will be entitled to profit sharing, or any other benefits which
Employee would accrue or vest up until date of termination. Nothing
herein will be construed to limit or modify the duty of Employee to
mitigate his damages in the event Employer terminates his employment
without cause. In no event shall Employer terminate Employee's
employment without cause prior to the end of the Earn-Out Period (as
defined in the Merger Agreement).
f. By Employee for Good Reason. The Employee may terminate his
employment during the Period of Employment for Good Reason. For
purposes of this Agreement, "Good Reason" shall mean:
(i) The reduction in the Employee's base salary as specified in Section
3(a) of this Agreement (as increased pursuant to Section 3(b)) or any
other benefit or payment described in Section 3 of this Agreement;
(ii) the change without his consent of the Employee's title, authority,
duties or responsibilities as specified in Section 2(a) of this Agreement; or
(iii) the Employer requiring the Employee without his consent to be
based at any office or location other than the location where the
Employee is currently employed; or
(iv) any breach by the Employer of any other material provision
of this Agreement.
5. Employer Representation. Employer represents and warrants that:
(i) this Agreement has been approved by NDEI's and Employees Board
of Directors and is binding; (ii) this Agreement will not violate the
corporate charter or by-laws of Employer; and (iii) Employer will not
hereafter enter into any covenants or undertake any other acts which
conflict with this Agreement.
6. Confidentiality and Nondisclosure agreement. Concurrently
herewith, Employee will execute and deliver to Employer a Confidentiality
and Nondisclosure Agreement, substantially in the form attached hereto
as Exhibit "B" the terms of which are incorporated herein by this
reference.
7. Headings. The headings and captions of this Agreement are
inserted for convenience only and shall not be used to interpret or
construe any provisions of this Agreement.
8. Notices. All notices or other communications required hereunder
shall be made in writing and shall be deemed to have been duly given if
delivered by hand or mailed, postage prepaid, by certified or registered
mail, return receipt requested, and addressed to Employer/NDEI at:
Netter Digital Entertainment, Inc.
0000 Xxxxxxxxxx Xxxx. Xxxxx 000
X. Xxxxxxxxx, XX 00000
or to Employee at:
Xxxx X. Xxxxx
000 Xxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Notice of change of address shall be effective only when done in
accordance with this Section.
9. Entire Agreement.
a. This Agreement supersedes any and all other agreements, either
oral or in writing, between the parties hereto with respect to the
employment of Employee by Employer. This Agreement contains all of
the covenants and agreements between the parties with respect to such
employment, except as provided herein. The terms of this Agreement
are intended by the parties to be the final expression of their agreement
and may not be contradicted by evidence of any prior, contemporaneous
or subsequent agreement. The parties further intend that this Agreement
shall constitute the complete and exclusive statement of its terms and that
no extrinsic evidence whatsoever may be introduced in a judicial,
administrative or other legal proceeding involving this Agreement. The
terms of this Agreement may only be modified if done so in writing and
signed by the parties.
b. In the event Employer has or will promulgate a general employee
manual or other written employment policies for its employees,
appropriate policies shall apply to Employee except to the extent such
policies are contrary to this Agreement.
10. Attorneys' Fees. In the event of any arbitration or court action
concerning the execution, performance, termination or other aspect of this
Agreement, or of the employment relationship between Employee and
Employer, the prevailing party in any such dispute shall be entitled to an
award of reasonable attorneys' fees and costs including, without
limitation, expert witness fees and disbursements.
11. Amendments and Waivers. This Agreement may not be modified,
amended or terminated except as provided in the Agreement or by an
instrument in writing, signed by Employee and by a duly authorized
representative of Employer other than Employee. Through an instrument
in writing similarly executed, either Employee or Employer, as the case
may be, may waive compliance by the other party with any provision of
this Agreement that such other party was or is obligated to comply with
or period provided, however, that such waiver shall not operate as a
waiver of, or estoppel with respect to, any other or subsequent failure.
The failure of any party to insist in any one or more instances upon
performance with any term or condition of this Agreement shall not be
construed as a waiver of its or his future performance. The obligations of
either party with respect to such term, covenant or condition shall
continue in full force and effect.
12. Law Governing Agreement. The validity, interpretation,
enforceability and performance of this Agreement shall be governed by
and construed in accordance with the laws of the State of California.
13. Severability and Enforcement. If any terms, covenants or
conditions in this Agreement, or the applications thereof to any person,
party, place or circumstance, shall be held by an arbitrator or court of
competent jurisdiction to be invalid, unenforceable or void, the remainder
of this Agreement or the application of such terms, covenants or
conditions as applied to other persons, parties, places and circumstances
shall remain in full force and effect.
14. Employee Acknowledgment. Employee acknowledges (i) that he
has consulted with or has had the opportunity to consult with independent
counsel of his own choice, concerning this Agreement and has been
advised to do so by Employer, and (ii) that he has read and understands
the Agreement, is fully aware of its legal effect and has entered into it
freely based on his own judgment.
15. Joint Preparation. This Agreement is deemed to have been
prepared jointly by the parties hereto and to any uncertainty or ambiguity
existing herein, if any, shall not be interpreted against any party, but shall
be interpreted according to the application of the rules of interpretation
for arms length agreements taking into account the specific intention of
the parties wherever such intention is discernible.
16. Binding Arbitration Agreement. In the event of any dispute
between Employee and Employer or any of its agents, employees,
affiliated entities, successors or assigns, arising out of or relating to the
interpretation, application, breach, arbitrability, or enforceability of this
Agreement, or any other dispute arising out of or relating to Employee's
employment or relationship with Employer, any such dispute must be
resolved in accordance with the Arbitration Agreement, attached hereto
as Exhibit "C."
The parties have duly executed this Agreement as of the day and year
set forth above.
EMPLOYER: VIDESSENCE, INC.
By: /s/Xxxxxxx Xxxxxx Dated:
Xxxxxxx Xxxxxx,
Chairman of the Board of Directors
Dated:
Xxxx X. Xxxxx
EXHIBIT A
OPTION AGREEMENT
NETTER DIGITAL ENTERTAINMENT, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is effective
as of
December 31, 1996 by and between Netter Digital Entertainment, Inc., a
Delaware corporation (the "Company"), and Xxxx Xxxxx ("Optionee"),
with reference to the following facts:
A. Pursuant to an Employment Agreement entered into as of
December 31, 1996, the Company retained the services of Optionee.
B. As part of Optionee's compensation and to align Optionee's
interests with those of the Company, the Company agreed to grant
Optionee an option to purchase shares of the Company's common stock.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth, it is agreed as follows:
I Grant of Option. The Company hereby grants to Optionee a stock
option ("Option") to purchase shares of the Company's common stock
upon the following terms:
a. Option Grant Date: December 31, 1996
b. Number of Shares: 90,000 shares of common stock
c. Exercise Price: $3.00
d. Vesting Schedule: 18,000 shares shall vest on 12/31/96
18,000 shares shall vest on 12/31/97
18,000 shares shall vest on 12/31/98
18,000 shares shall vest on 12/31/99
18,000 shares shall vest on 12/31/2000
e. Type of Option: nonstatutory stock option
2. Term of Option. The Option shall expire on the earliest of (i) ninety
(90) days from the date on which Optionee. ceases to be an employee of
the Company for any reason other than death; (ii) one year from the date
of death of Optionee; or (iii) December 31, 2001.
Other than as described in Section 3 of this Agreement or as provided in
the Employment Agreement mentioned above, if Optionee ceases for any
reason to be an employee of the Company, that portion of the Option
which has not yet become vested shall be terminated, unless the
Company's Board of Directors in its discretion accelerates the vesting
schedule in which case it may impose whatever conditions it considers
appropriate on the accelerated portion.
3 . Acceleration upon Change in Control. Notwithstanding any
vesting provisions of the Option or anything else herein to the contrary, all
shares evidenced by the Option shall vest and become exercisable
immediately prior to any Change in Control, if Optionee is an employee of
the Company at that time. For purposes hereof, "Change in Control" shall
have the meaning set forth in Exhibit A attached hereto.
4. Exercise of Option. Optionee shall exercise the Option to the extent
exercisable, in whole or in part, by sending written notice to the Company
of his intent to exercise. Said notice shall specify the number of shares
which Optionee desires to purchase pursuant to this Agreement and the
date (which date shall be within five (5) days after receipt by the
Company of said notice) on which he desires to complete his purchase.
a. On or before the date specified in such notice for the completion of
the purchase of the shares, Optionee shall pay the Company, by cash, or
by check, the exercise price of the shares purchased.
b. Subject to the Company's compliance with all applicable laws, rules,
and regulations relating to the issuance of such shares and Optionee's
compliance with all the terms and conditions of this Option, the Company
shall promptly deliver the, shares to Optionee upon receipt of the exercise
price therefore.
5. Minimum, Share Purchase. Not less than One Hundred (100)
shares may be purchased at any one time. No fractional share shall be
purchased hereunder.
6. Option Not Transferable. The Option granted hereunder shall not
be transferable in any manner other than upon the death of Optionee. In
the event of Optionee's death, the executor or administrator of his estate
or the person to whom the Option shall have been transferred pursuant to
will or the laws of descent and distribution may exercise the Option to the
extent it was exercisable on the date of his death subject to Section 2
hereof, provided, however, that such transferee shall be entitled to no
greater rights than Optionee hereunder. More particularly (but without
limiting the foregoing), the Option may not be assigned, transferred
(except as expressly provided herein), pledged, or hypothecated in any
way, shall not be assignable by operation of law and shall not be subject
to execution, attachment, or similar process. Any attempted assignment,
transfer, pledge, hypothecation, or other disposition of the Option contrary
to the provisions hereof, or the levy of any execution, attachment, or
similar process upon the Option, shall be null and void and without effect.
7. Adjustments to Option Shares. The Company shall adjust the
number of shares granted under this Agreement, and which Optionee has
not purchased, as follows:
a. The grant of this Option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations, or changes of its capital or business structure, or to
merge, consolidate, dissolve, liquidate, sell, or transfer all or any part of
its business or assets.
b. Except as expressly provided herein, Optionee shall have no other
rights by reason of any subdivision or consolidation of shares of stock of
any class or the payment of any stock dividend or any other increase or
decrease in the number of shares of stock of any class or by reason of
any dissolution, liquidation, merger or consolidation or spin-off of assets or
stock of another corporation. Any issue by the Company of shares of
stock of any class or securities convertible into shares of stock of any
class shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares subject to the Option.
c. In the event there are splits, subdivisions, combinations or
reclassifications of the Company's stock subsequent to the Option Grant Date,
the number of shares reserved for issuance pursuant to this Option shall be
increased or decreased proportionately, as the case may be, to appropriately
reflect such event.
9. No Right to Continued Employment. This Agreement does not
confer upon Optionee any right to continue in the employ of the
Company, nor does it limit in any way the right of the Company to
terminate employment at any time, with or without cause.
10. Acknowledgments of Optionee. Optionee acknowledges and
agrees that:
a. Optionee is aware that this Option is NOT an Incentive Stock
Option as contemplated under the Internal Revenue Code;
b. Optionee and his transferees have no rights as a stockholder with
respect to any shares covered by this Agreement until the date of the
issuance of a stock certificate to him for such shares. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or distributions or other right for which the
record date is prior to the date such stock certificate is issued, except as
provided herein.
11. Withholding Taxes. Whenever under this Agreement, shares are
to be issued, the Company shall have the right to require Optionee to
remit to the Company an amount sufficient to satisfy federal, state, and
local withholding tax requirements prior to issuance and/or delivery of any
certificate or certificates for such shares.
12. Successors and Assigns. This Agreement shall bind and inure to
the benefit of the parties' heirs, legal representatives, successors, and
assigns. Nothing in this Section 12 shall be construed to limit the
provisions of Section 6 herein or any agreements executed or required to
be executed pursuant thereto.
13. Entire Agreement. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter contained
herein and shall supersede all prior and contemporaneous agreements,
representations, and understandings of the parties. No supplement,
modification, or amendment of this Agreement shall be binding unless
executed in writing by all of the parties. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provisions, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
14. Governing Low. This Agreement shall be construed according to
the laws of the State of California.
15. Validity. Should any portion of this Agreement be declared invalid
and unenforceable, then such portion shall be deemed to be severable
from this Agreement and shall not affect the remainder hereof
16. Litigation and Attorneys' Fees. If any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because
of an alleged dispute or default in connection with any of its provisions,
the successful or p party shall be entitled to recover reasonable attorneys'
fees and other costs incurred in such action or proceeding, in addition to
any relief to which such party may be deemed entitled.
IN WITNESS WHEREOF, this Agreement is made effective as of the
day and year above first written.
NETTER DIGITAL ENTERTAINMENT INC., OPTIONEE
a Delaware corporation
By:
Xxxxxxx Xxxxxx, Chief Executive Officer Xxxx X. Xxxxx
Name:
Last Name of Employee
EXHIBIT B
NETTER DIGITAL ENTERTAINMENT INC.
OWNERSHIP OF EMPLOYEE DEVELOPMENTS,
NON-DISCLOSURE AND CONFIDENTIALITY
AGREEMENT
THIS AGREEMENT, is effective as of the date shown below, by and
between Netter Digital Entertainment, Inc.(Employer) and Xxxx Xxxxx, as
an employee ("Costa" or "Employee") and is in consideration of the
services to be provided by Costa for Employer and the compensation for
those services to be provided to Costa by Employer, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged. Costa and Employer agree as follows:
1. OWNERSHIP OF EMPLOYEE DEVELOPMENTS
1.1 Existing Proprietary Rights. To the best knowledge of Costa, the
only intangible interests and properties (e.g., patents, patent applications,
copyrights, trade secrets, and trademarks) that Costa owns or has an
interest in at the time of execution of this Agreement are those, if any,
listed in Exhibit A attached hereto.
1.2 Ownership of Work Product.
a. For purposes hereof, "Work Product" shall mean all intellectual
property rights, including all Trade Secrets, U.S. and international
copyrights, patentable inventions, discoveries and improvements, and
other intellectual property rights, in any programming, documentation,
technology, or other Work Product that relates to the business and
interests of Employer and that Costa conceives, develops, or delivers to
Employer at any time during the term of Costa's employment, except that
"Work Product' shall not include any invention (i) that Costa developed
entirely on Costa's own time, without using Employer's equipment,
supplies, facilities or trade secret information and (ii) which neither (A)
related at the time of conception or reduction to practice to Employers
business or actual or demonstrably anticipated research or development
nor (B) resulted from any work performed by Costa for Employer. Work
Product shall also include all intellectual property rights in any
programming, documentation, technology, or other work product that is
now contained in any of the products or systems, including development
and support systems, of Employer to the extent Costa conceived,
developed, or delivered such Work Product to Employer while Costa was
engaged as an independent contractor or an employee of Employer.
Costa hereby irrevocably relinquishes for the benefit of Employer and its
assigns any moral rights in the Work Product recognized by applicable
law.
b. Employer shall own all Work Product. All Work Product shall be
considered work made for hire by Costa and owned by Employer.
c. If any of the Work Product may not, by operation of law, be
considered work made for hire by Costa for Employer, or if ownership of
all right, title, and interest of the intellectual property rights therein
shall not otherwise vest exclusively in Employer, Costa agrees to assign,
and upon creation there of automatically assign, without consideration, the
ownership of all Work Product, to Employer, its successors, and assigns.
d. Employer and its successors, and assigns shall have the right to
obtain and hold m its or their own name copyrights, registrations, and any
other protection available in the foregoing Work Product.
x. Xxxxx agrees to perform, upon the reasonable request of Employer,
during or after Costa's employment, such acts as may be necessary to
transfer, perfect, and defend Employer's ownership of the Work Product,
including, but not limited to,
actions to:
1. Execute, acknowledge, and deliver any requested affidavits and
documents of assignment and conveyance;
2. Obtain and aid in the enforcement of copyrights and, if applicable,
patents with respect to the Work Product in any countries;
3. Provide testimony in connection with any proceeding affecting the
right, title, or interest of Employer in any Work Product; and Employer
shall reimburse all reasonable out-of -pocket expenses incurred by Costa
at Employer's request in connection with the foregoing, including (unless
Costa is otherwise being compensated at the time) a reasonable per diem
or hourly fee for services rendered following termination of Costa's
employment.
1.3 Clearance procedure for Proprietary Rights not Claimed by
Employer.
a. If Costa ever wishes to create or develop during the term of his
employment with Employer, on Costa's own time and with Costa's own
resources, anything that would be considered Work Product but to which
Costa believes Costa should be entitled to the personal benefit of, Costa is
required to follow the clearance procedure set forth in this section in
order to ensure that Employer has no claim to the proprietary rights that
may arise.
b. Before Costa begins any development work on such Work Product
on Costa's own time, Costa must give Employer advance notice of
Costa's plans and supply a description of the development under
consideration. Employer will determine, in good faith within thirty (30)
days after Costa has fully disclosed Costa's plans to Employer, whether
the development is claimed by Employer. If Employer determines that it
does not claim such development, Costa will be notified in writing and
may retain ownership of the development to the extent of what has been
disclosed to Employer. Costa should submit for further clearance any
significant improvement, modification , or adaptation relates to the
business or interests of Employer
2. CONFIDENTIALITY
2.1 Confidential Information Defined. For purposes of this Agreement,
"Confidential Information" means all information and material winch is
proprietary to Employer, whether or not marked as "confidential" or
"proprietary" and which is disclosed to or obtained by Employee, which
relates to Employer's past, present, or future research, development, or
business activities. Confidential Information is all information or materials
prepared by or for Employer and includes, without limitation, all of the
following: designs, drawings, specifications, techniques, models, data,
source codes, object codes, documentation, diagrams, flow charts,
research, development, processes, procedures "know-how," new product
or new technology information, product prototypes, product copies,
manufacturing, development or marketing techniques and material,
development or marketing timetables, strategies, and development plans,
including trade names, trademarks, customer, supplier, or personal names,
and other information related to customers, suppliers, or personnel, pricing
policies and financial information, and other information of a similar
nature, whether or not reduced to writing or other tangible form, and
other trade secrets or nonpublic business information. Confidential
Information does not included any information which (a) was in the lawful
and unrestricted possession of Employee prior to its disclosure to
Employee by Employer, (b) is or becomes generally available to the public
by acts other than those of the Employee after receiving it, or (c) has
been received lawfully and in good faith by Employee from a third party
who did not derive it from Employer.
2.2. Restrictions on Use and Disclosure of Confidential Information.
Costa agrees not to use, copy, disclose or allow access to any
Confidential Information of Employer during Costa's employment and for
so long afterwards as the pertinent information or data remain
Confidential Information, regardless of whether the Confidential
Information is in written or tangible form, except as required to perform
any duties for Employer.
2.3 Screening of Public Releases of Information. In addition, and
without and intention of limiting Costa's other obligation under this
Agreement in any way, during Costa's employment, reveal any nonpublic
information concerning the technology pertaining to the proprietary
products and manufacturing processes of Employer (particularly
technology under current development or improvement), unless Costa has
obtained approval from Employer in advance. In that connection , Costa
must first submit to Employer for review any proposed scientific and
technical articles and the text of any public speeches relating to work
done for Employer before they are released or delivered. Employer has
the right to disapprove or prohibit, or delete any parts of, such articles or
speeches that might disclose Employer's Confidential Information or
otherwise be contrary to Employer's business interests.
3. Return of Materials. Upon the request of Employer and, in any
event, upon the termination of Costa's employment, Costa must return to
Employer and leave at its disposal all memoranda, notes, records,
drawings, manuals, computer programs, documentation, diskettes,
computer tapes, and other documents or media pertaining to the business
of Employer or Costa's specific duties for Employer, including all copies
of such materials. Costa must also return to Employer and leave at its
disposal all materials involving any Confidential Information of Employer.
This Section 2 is intended to apply to all materials or compiled by Costa,
as well as materials furnished to Costa by anyone else in connection with
Costa's employment.
4. MISCELLANEOUS
4.1 Survival of Obligation. The covenants on Sections 1.2, 2.2, and 3
of this Agreement shall survive termination of Costa's employment,
regardless of who causes the termination and under what circumstances.
4.2 Construction. The heading used herein are for convenience or
reference only and shall not affect the construction of, or be taken into
consideration in interpreting, any provision of this Agreement. In the
interpretation and construction of this Agreement, the acknowledge that
the terms hereof reflect extensive negotiations between the parties and
that this Agreement shall not be deemed, for the purpose of construction
and/or interpretation, that either party drafted this Agreement.
4.3 Governing Law, Jurisdiction and Venue. This Agreement will be
governed by and construed in accordance with the laws of the State of
California without reference to its choice of law rules and as if wholly
performed within the State of California. Any litigation regarding the
interpretation, breach or enforcement of this Agreement will be filed and
in heard by the state or federal courts with jurisdiction to hear such
disputes in Los Angeles County, California, and the parties hereby
expressly submit to the jurisdiction of such courts.
4.4 Entire Agreement. This Agreement sets forth the entire
understanding and agreement between the parties with respect to the
subject matter hereof and supersedes all other or written representations
and understandings. This Agreement may only be modified by a writing
signed by Employee and Employer.
4.5 No Implied License. No rights or obligations other than those
expressly recited herein are to be implied from this Agreement. No
license is hereby granted, directly or indirectly, to any of any Confidential
Information disclosed.
4.6 Severability. The parties agree that this Agreement is severable
and that in the event any provision of this Agreement is held to be illegal,
invalid or unenforceable, the legality, validity and enforceability of the
remaining provision will not be affected or impaired. Additionally, the
parties expressly grant to any court or other entity interpreting this
Agreement the power and authority to modify the terms of this
Agreement to extent necessary to allow enforcement of this Agreement
to the fullest extent allowed by law.
4.7 Successors and Assigns. This Agreement shall be binding upon
the successors, assigns and legal representatives of Employee, and inures
to the benefit of any successors or assigns of Employer.
4.8 Waivers. No waiver of any of the provision of this Agreement
shall be deemed to be or shall constitute a waiver of any other provision
of this Agreement, whether or not similar, nor shall any waiver constitute
waiver. No waiver of any provision of this Agreement shall be binding on
the parties hereto unless it is executed in writing by the party making the
waiver.
IN WITNESS WHEREOF, the parties have entered into this agreement
as of the date set forth below.
EXHIBIT A
Employee Owned Intangible Interests or Properties
1. None
EXHIBIT C
EMPLOYEE ARBITRATION AGREEMENT
THIS ARBITRATION AGREEMENT ("Agreement") is made and
effective as of December 31, 1996, by and between Videssence, Inc.
("Employer"), and Xxxx X. Xxxxx ("Employee").
The purpose of this Agreement is to establish final and binding
arbitration for all disputes arising out of Employee's employment or the
termination of Employee's employment. Employee and Employer desire
to arbitrate their disputes on the terms and conditions set forth below, in
order to gain the benefits of a speedy, impartial dispute-resolution
procedure. Employee and Employer agree to the following:
1. Claims Covered By The Agreement. Employee and Employer
mutually consent to the resolution by final arbitration of all claims or
controversies ("claims") that Employer may have against Employee or
that Employee may have against Employer or against its officers,
directors, partners, employees, agents, pension or benefit plans,
administrators, or fiduciaries, or any subsidiary or affiliated company or
corporation (collectively referred to as "Employer"), relating to, resulting
from or in any way arising out of Employee's employment relationship
with Employer and/or the termination of Employee's employment
relationship with Employer. The claims covered by this Agreement
include, but are not limited to, claims for wages or other compensation
due; claims for breach of any contract or covenant (express or implied);
tort claims; claims for discrimination (including, but not limited to, race,
sex, religion, national origin, age, marital status or medical condition,
disability, or sexual orientation); claims for benefits (except where an
employee benefit or pension plan specifies that its claims procedure shall
culminate in an arbitration procedure different from this one); and claims
for violation of any federal, state or other governmental law, statute,
regulation or ordinance, except claims excluded in the following section.
2. Claims Not Covered By The Agreement. Claims Employee may
have for Workers' Compensation or unemployment compensation
benefits are not covered by this Agreement. Also not covered are claims
by Employer for injunctive and/or other equitable relief for unfair
competition and/or the use and/or unauthorized disclosure of trade secrets
or confidential information, as to which Employee understands and agrees
that Employer may seek and obtain relief from a court of competent
jurisdiction.
3. Required Notice Of Claims And Statute Of Limitations. Arbitration
may be initiated by Employee by serving or mailing a written notice to the
Chairman of the Board of Directors of Employer. In the case of a
termination of employment, the notice must be served or mailed within
one (1) year of the termination of employment. In an arbitration not
arising out of termination of Employee's employment, the written notice
must be served or mailed within one (1) year of the event which gave rise
to the claim for arbitration. Employer may initiate an arbitration by
serving or mailing a written notice to Employee at the last address
recorded in Employee's personnel file, within one (1) year of the event
which gave rise to the arbitration. The notice shall identify and describe
the nature of all claims asserted and the facts upon which such claims are
based. Failure to comply with all the requirements of this paragraph will
constitute a waiver of all rights that the party seeking arbitration may
have against the other party, and any such claims shall be void.
4. Arbitration Procedures.
(a) After demand for arbitration has been made by serving written
notice under the terms of Section 3 of this Agreement, the party
demanding arbitration shall file a demand for arbitration with the
American Arbitration Association ("AAA") in Los Angeles County.
(b) Except as otherwise provided in this Agreement, the arbitration will
be conducted according to the then current version of the AAA
Employment Dispute Resolution Rules. The AAA shall give each party a
list of seven arbitrators from its panel of labor and employment
arbitrators. Each party shall alternatively strike one of the arbitrators
from the fist until only one arbitrator remains. A coin flip will determine
which party chooses whether it desires to strike first or second.
(c) The arbitrator shall apply the substantive law (and the law of
remedies, if applicable) of the state of California, or federal law, or both,
as applicable to the claim(s) asserted. The arbitrator shall have exclusive
authority to resolve any dispute relating to the interpretation, applicability,
enforceability or formation of this Agreement, including but not limited to
any claim that all or any part of this Agreement is void or voidable.
5. Arbitration Decision. The arbitrator's decision will be final and
binding. A party's right to appeal the decision is limited to grounds
provided under applicable federal or state law.
6. Place Of Arbitration. The arbitration will be at a mutually
convenient location which must be within 50 miles of Employee's last
employment location with Employer. If the parties cannot agree upon a
location, then the arbitration will be held at the AAA's office nearest to
Employee's last employment location with Employer.
7. Construction. Should any portion of this Agreement be found to be
unenforceable, such portion will be severed from this Agreement, and the
remaining portions shall continue to be enforceable.
8. Consideration. Employer's offer of employment to Employee and
the promises by Employer and Employee to arbitrate differences, rather
than litigate them before courts or other bodies, provide consideration for
each other.
9. Arbitration Fees and Costs. The losing party shall be responsible for
the arbitrator's fees and costs. Each party may be represented by an
attorney or other representative selected by the party. Each party shall
be responsible for its own attorneys' or representative's fees. However,
if any party prevails on a statutory claim which affords the prevailing
party's attorneys' fees, or if there is a written agreement providing for
fees, the arbitrator may award reasonable fees to the prevailing party.
10. Waiver of Jury Trial/Exclusive Remedy. EMPLOYEE AND
EMPLOYER WAIVE ANY CONSTITUTIONAL RIGHT TO HAVE
ANY DISPUTE BETWEEN THEM COVERED BY THE TERMS OF
THIS AGREEMENT DECIDED BY A COURT OF LAW AND/OR
BY A JURY IN A COURT PROCEEDING AND/OR BY ANY
ADMINISTRATIVE AGENCY.
11. Sole And Entire Agreement. This Agreement expresses the entire
Agreement of the parties and there are no other agreements, oral or
written, concerning arbitration, except as provided herein. This
Agreement is not, and shall not be construed to create, any contract of
employment, express or implied.
12. Requirements for Modification or Revocation. This Agreement to
arbitrate shall survive the termination of Employee's employment. It can
only be revoked or modified by a writing signed by the Chairman of the
Board of Directors of Employer and Employee which specifically states
an intent to revoke or modify this Agreement.
13. Voluntary Agreement. EMPLOYEE ACKNOWLEDGES THAT
EMPLOYEE HAS CAREFULLY READ THIS AGREEMENT,
UNDERSTANDS ITS TERMS, AND AGREES THAT ALL
UNDERSTANDINGS AND AGREEMENTS BETWEEN
EMPLOYER AND. EMPLOYEE RELATING TO THE SUBJECTS
COVERED IN THE AGREEMENT ARE CONTAINED IN IT.
EMPLOYEE HAS VOLUNTARILY ENTERED INTO THE
AGREEMENT WITHOUT RELIANCE ON ANY PROVISIONS OR
REPRESENTATIONS BY EMPLOYER, OTHER THAN THOSE
CONTAINED IN THIS AGREEMENT.
EMPLOYEE FURTHER ACKNOWLEDGES THAT EMPLOYEE
HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS
AGREEMENT WITH EMPLOYEE'S PRIVATE LEGAL COUNSEL
AND EMPLOYEE HAS UTILIZED THAT OPPORTUNITY TO
THE EXTENT DESIRED.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the date first written above.
EMPLOYER:
VIDESSENCE, INC., a California corporation
Xxxxxxx Xxxxxx, Chairman of the
Board of Directors
EMPLOYEE:
Xxxx X. Xxxxx
