EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into effective
as of the 16th day of January 2002, by and between Videolocity, Inc., a Nevada
corporation (the "Company"), and Robert E. Holt (the "Executive").
PREMISES
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A. The Company desires to employ Executive as its Chief Executive
Officer and the Executive desires to accept employment in such position,
further, it is the desire of Company to cause Executive to be appointed and or
elected to the Board of Directors throughout the term of this Agreement.
B. The parties desire to enter into this Employment Agreement to
specify each party's rights and obligations under the employment relationship.
AGREEMENT
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NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual covenants
contained herein and the mutual benefits to be derived hereunder, the parties
agree as follows:
1. Employment.
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Company hereby employs Executive as Chief Executive Officer of the
Company to perform those duties customarily associated with such position and
such other duties as may be assigned to Executive by the Company's Board of
Directors (the "Board") from time to time. Executive accepts and agrees to such
employment on the terms and conditions set forth in this Agreement.
2. Term.
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The term of this Agreement shall be for three (3) years and commence
effective as of January 16, 2002, and expire at midnight on January 15, 2005,
unless earlier terminated in accordance with the provisions of this Agreement.
3. Duties.
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Executive shall be employed by Company as its Chief Executive Officer
and in such other senior executive positions of comparable status, dignity and
responsibility as requested by the Board from time to time. Executive shall also
serve in similar positions with such subsidiaries of Company as shall, from time
to time, be requested by Company's board of directors. Executive shall not
receive any additional compensation for service as a member of the Board or as
an officer of any subsidiaries of the Company unless otherwise directed by the
Board.
Executive shall devote substantially all of his working time and
efforts to the business of Company and its subsidiaries and shall not during the
term of this Agreement be engaged in any other substantial business activities
which will significantly interfere or conflict with the reasonable performance
of his duties hereunder, except where approved by the Board. Executive may serve
or continue to serve as a member of the board of directors of any companies or
organizations which, in the Board's reasonable judgment, will not present any
conflict of interest with the Company or any of its subsidiaries or materially
adversely affect the performance of Executive's duties under this Agreement.
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4. Compensation.
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The benefits as set forth hereunder in subparagraphs (a), (d) and (d)
(i) become effective, only after and immediately, upon the receipt by the
Company of a minimum of $1,000,000 in capital funding. In the event said funding
received is of a debt structure said funds must have a minimum use of 180 days
to maturity to activate the aforementioned benefits being held subject to the
specific performance set forth herein above.
(a) Bonus. Coincidental with the execution of this Agreement
Company will caused to be issued to Executive 1,000,000 shares of its
common voting stock fully paid and non-assessable bearing a restrictive
144 legend from the authorized but unissued shares of Company.
(b) Base Salary. For all services rendered by Executive,
Company shall pay to Executive a base salary of $240,000 per year
throughout the term of this Agreement, payable in arrears in equal
monthly installments on the first and sixteenth day of each calendar
month. All salary payments shall be subject to withholding and other
applicable taxes. Executive's salary for any partial month at the
beginning or end of this Agreement shall be prorated. The rate of
salary may be increased at any time after the first year as the Board
may determine, based on earnings, increased activities of the Company,
or such other factors as the Board may deem appropriate.
(c) Executive Participation in Stock Incentive Program. The
Company shall grant Executive 900,000 plan units under the Videolocity,
Inc. 2000 Stock Incentive Program (the "Stock Incentive Program")
pursuant to which Executive will be awarded one share of the Company's
common stock for each fully vested plan unit, as more particularly
described in the Stock Incentive Program, and as specifically set forth
in Exhibit "A" attached hereto.
(d) Executive Stock Incentive Program. Simultaneous with the
execution of this Agreement, the Company grants Executive the
opportunity to purchase the following warrants within ten days of the
execution date of this Agreement, each warrant is redeemable for one
share of the common voting stock of Company, as follows; to wit
(i) 9,000,000 Non-transferable warrants @ .001 per share,
exercisable @ $.10 per share for 9,000,000 shares of the common voting
stock of Company, as follows: between the first anniversary date of
this Agreement and continuing thereafter for two consecutive years.
(e) Executive Benefits. The Company shall provide such health
and medical insurance for Executive in the form and program chosen by
the Company for its full-time Executives commencing not later than
thirty (30) days after the execution of this Agreement. Executive shall
be entitled to participate in any other health, medical, retirement,
pension, profit-sharing, disability, death and dismemberment, life
insurance, stock option, vacation and other benefit plans and programs
as in effect from time to time on the same basis as other members of
senior management.
(f) Vacation. Executive shall be entitled to paid vacation
after one year of service in accordance with the most favorable plans,
policies, programs and practices of the Company and its affiliated
companies with respect to members of senior management, however not to
exceed two weeks paid vacation in any given one year period.
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5. Reimbursement of Expenses.
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Company will promptly reimburse Executive for expenses reasonably
incurred in connection with Company's business in accordance with the Company's
policies, including expenses for travel, lodging, meals, and other items on
Executive's periodic presentation of an expense report in the form approved by
the Company.
6. Nondisclosure of Confidential Information.
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For purposes of this Agreement, the term "Confidential Information"
means information (i) disclosed to or known by Executive as a consequence of or
through his/her employment with the Company, (ii) not generally known outside
the Company, and (iii) which relates to the Company's business. Confidential
Information includes, but is not limited to, information of a technical nature,
such as methods and materials, trade secrets, inventions, processes, formulas,
systems, computer programs and studies, and information of a business nature
such as project plans, market information, costs, customer lists, and so forth.
Confidential Information does not include information that (i) is or becomes
generally available to the public other than as a result of a disclosure by
Executive in violation of this Agreement, or (ii) was in Executive's possession
prior to his introduction to the Company.
Recognizing that the Company is presently engaged, and may hereafter
continue to be engaged, in the research and development of processes and the
performance of services which involve experimental and inventive work, and that
the success of the Company's business may depend upon the protection of its
processes, products and services by patent, copyright or secrecy, and that
Executive has had, or during the course of his engagement may have, access to
Confidential Information, as herein defined, Executive agrees and acknowledges
that:
(a) The Company has exclusive right and title to all
Confidential Information and Executive hereby assigns all rights he
might otherwise possess in any Confidential Information to the Company.
Except as required in the performance of his duties to the Company,
Executive will not at any time during or after the term of his
employment or engagement by the Company, which term shall include any
time in which Executive may be retained by the Company as a consultant,
directly or indirectly use, communicate, disclose or disseminate any
Confidential Information.
(b) All documents, records, notebooks, notes, memoranda and
similar repositories of, or containing Confidential Information or any
other information of a secret, proprietary, confidential or generally
undisclosed nature relating to the Company or its operations and
activities made or compiled by Executive at any time or made available
to him during the term of his employment or engagement by the Company,
including any and all copies thereof, shall be the property of the
Company, shall be held by him in trust solely for the benefit of the
Company, and shall be delivered to the Company by him on the
termination of his engagement or at any other time on the request of
the Company.
(c) Executive will not assert any rights under any inventions,
trademarks, copyrights, discoveries, concepts or ideas, or improvements
thereof, or know-how related thereto, as having been made or acquired
by him during the term of his employment or engagement if based on or
otherwise related to Confidential Information.
8. Assignment Of Inventions.
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(a) All discoveries, concepts, and ideas, whether or not
patentable or subject to copyright protection, including but not
limited to improvements, know-how, data, processes, methods, formulae,
and techniques, as well as improvements thereof, or know-how related
thereto, concerning any past, present or prospective activities of the
Company which Executive makes, discovers or conceives (whether or not
during the hours of his engagement or with the use of the Company's
facilities, materials or personnel), either solely or jointly with
others during his engagement by the Company or any affiliate and, if
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based on or related to Confidential Information, at any time after
termination of such engagement (collectively, the "Inventions"), shall
be the sole property of the Company, and Executive agrees to perform
the provisions of this Section 8 with respect thereto without the
payment by the Company of any royalty or any consideration therefore
other than the regular compensation paid to Executive in his capacity
as an executive or consultant.
(b) Any written notebooks maintained by Executive with respect
to Inventions and studies or research projects undertaken on the
Company's behalf shall at all times be the property of the Company and
shall be surrendered to the Company upon termination of Executive's
engagement or, upon the request of the Company, at any time prior
thereto.
(c) Executive hereby assigns to the Company all of his rights
to Inventions.
(d) Executive shall sign, acknowledge and deliver promptly to
the Company, without charge to the Company, but at its expense, such
written instruments (including applications and assignments) and take
such other acts, such as giving testimony in support of Executive's
inventorship, as may be necessary in the reasonable opinion of the
Company to obtain, maintain, extend, reissue and enforce United States
and/or foreign letters patent and copyrights relating to Inventions
invented by Executive and to vest the entire right and title thereto in
the Company or its nominee. Executive acknowledges and agrees that any
copyright developed or conceived of by Executive during the term of his
employment, which is related to the business of the Company, shall be a
"work for hire" under the copyright law of the United States and other
applicable jurisdictions.
(e) Executive represents that his performance of all the terms
of this Agreement and as an Executive of or consultant to the Company
does not and will not breach any trust or contract entered into prior
to his employment by the Company. Executive agrees not to enter into
any agreement either written or oral in conflict herewith and
represents and agrees that he has not brought and will not bring with
him to the Company or use in the performance of his responsibilities at
the Company any materials or documents of a former employer which are
not generally available to the public, unless he has obtained written
authorization from the former employer for their possession and use and
provided a copy of such authorization to the Company.
(f) No provisions of this Paragraph shall be deemed to limit
the restrictions applicable to Executive under Sections 9 and 10.
9. Shop Rights.
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The Company shall also have the royalty-free right to use in its
business, and to make, use and sell products, processes and/or services derived
from any inventions, discoveries, concepts and ideas, whether or not patentable,
including but not limited to processes, methods, formulas and techniques, as
well as improvements thereof or know-how related thereto, which are not within
the scope of Inventions as defined above but which are conceived of or made by
Executive during the period he is employed or engaged by the Company or with the
use or assistance of the Company's facilities, materials, or personnel.
10. Non-Compete.
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Executive hereby agrees that during the term of this Agreement and for
a period of three years from the expiration or earlier termination thereof,
Executive will not:
(a) Own, manage, operate, or control any business that is
directly competitive with any business conducted or proposed to be
conducted by the Company or any subsidiary thereof during the term of
this Agreement in any geographic market in which the Company or any
subsidiary thereof conducts business or proposes to conduct business
during the term of this Agreement. For purposes of this paragraph,
ownership of securities of not in excess of five percent (5%) of any
class of securities of a public company listed on the OTC Bulletin
Board, a national securities exchange or on the National Association of
Securities Dealers Automated Quotation System (NASDAQ) shall not be
considered to be competition with the Company or any subsidiary
thereof;
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(b) Act as, or become employed as, an officer, director,
executive, consultant or agent of any business within the
"video-on-demand" or "wireless broadband" industry which is directly
competitive with the Company or any subsidiary thereof during the term
of this Agreement in any geographic market within the "video-on-demand"
wireless broadband" industry in which the Company or any subsidiary
thereof conducts business during the term of this Agreement. The
"video-on-demand industry" shall mean the industry that provides video,
audio and other content to end users on demand over telephone, cable or
other similar lines, or by wireless transmission.
(c) Solicit any business similar to that of the Company's
from, or sell any products or services that are in direct competition
with the Company's products and services to, any company which was
within one year prior to the date of termination of Executive's
employment, a customer or client of the Company or any of its
subsidiaries; or
(d) Solicit the employment of any full time Executive employed
by the Company or its subsidiaries as of the date of termination of
this Agreement.
Provided, however, that this Section 10 shall be void and of no further
force or effect in the event this Agreement is terminated by the Company without
Cause or by Executive for Good Reason, as defined in Section 11 of this
Agreement.
11. Termination.
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(a) Death. The Executive's employment shall terminate
automatically upon the Executive's death during the term of this
Agreement.
(b) Disability. If Executive is absent from his full-time
duties with the Company as a result of incapacity due to mental or
physical illness ("Disability") and such absence continues
uninterrupted for a period of one (1) month, the base salary payable to
Executive under this Agreement shall be reduced by 50% until such time
as Executive resumes the performance of his full-time duties with the
Company or this Agreement is terminated. If Executive's Disability
continues for two (2) consecutive months, the Company may terminate
Executive's employment effective on the 30th day after receipt by
Executive of a notice to that effect (the "Disability Termination
Date"), unless Executive returns to the full-time performance of his
duties prior to the Disability Termination Date.
(c) Cause. The Company may terminate Executive's employment
during the term of this Agreement for Cause. For purposes of this
Agreement, "Cause" shall mean: (i) Executive being convicted of a
felony; (ii) a willful act of personal dishonesty taken by Executive in
connection with his responsibilities as an Executive and intended to
result in substantial personal enrichment of Executive; (iii) the
willful and continued failure of the Executive to perform substantially
the Executive's duties with the Company or its affiliates (other than
any such failure resulting from Disability), after a written demand for
substantial performance is delivered to the Executive by the Board
which specifically identifies the manner in which the Board believes
Executive has not substantially performed Executive's duties and
Executive has not performed such duties within 30 days of such notice,
or (iv) the willful engaging by the Executive in illegal conduct or
gross misconduct which is materially and demonstrably injurious to the
Company. For purposes of this provision, no act or failure to act, on
the part of the Executive, shall be considered "willful" unless it is
done, or omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive's action or omission was in the
best interests of the Company. Any act, or failure to act, based upon
authority given by the Chief Executive Officer and or Board of
Directors of the Company or pursuant to a resolution duly adopted by
the Board shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests of the
Company.
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(d) Good Reason. The Executive's employment may be voluntarily
terminated by Executive at any time within sixty (60) days after the
occurrence of an event constituting Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(i) the failure by the Company to comply with any of the
material terms of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad
faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(ii) the relocation of Executive to any office or location
more than 35 miles from the location of the Company's offices
at the commencement of this Agreement; or
(iii) the occurrence of a Change in Control as defined in
Section 13 of this Agreement.
(e) Notice of Termination. Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated by
Notice of Termination to the other party hereto in accordance with
Section 17 of this Agreement. For purposes of this Agreement, a "Notice
of Termination" means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of
such notice, specifies the termination date (which date shall be not
more than thirty days after the giving of such notice). The failure by
the Executive or the Company to set forth in the Notice of Termination
any fact or circumstance which contributes to a showing of Good Reason
or Cause shall not waive any right of the Executive or the Company,
respectively, or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the Executive's
or the Company's rights hereunder.
(f) Date of Termination. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause, or
by the Executive for Good Reason, the date of receipt of the Notice of
Termination or any later date specified therein, as the case may be,
(ii) if the Executive's employment is terminated by the Company other
than for Cause or Disability, or by the Executive other than for Good
Reason, the Date of Termination shall be thirty (30) days after the
date on which the Company notifies the Executive, or the Executive
notifies the Company, of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the
Disability Termination Date, as applicable.
12. Obligations of the Company upon Termination.
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(a) Termination for Good Reason; Termination other Than for
Cause, Death or Disability. If, during the term of this Agreement, the
Company shall terminate the Executive's employment other than for Cause
or Disability or the Executive shall terminate employment for Good
Reason:
(i) The Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination the
aggregate of the following amounts:
A. The sum of (aa) the Executive's Annual Base Salary
through the Date of Termination to the extent not
theretofore paid, (bb) reimbursement for any and all
monies advanced in connection with Executive's
employment through the Date of Termination, and (cc)
all other payments and benefits to which Executive
may be entitled under the terms of any benefit plan
of the Company through the Date of Termination
(collectively, the "Accrued Obligations"). Where
applicable, such payments shall be prorated based on
a 360-day year and the number of days elapsed during
the year in question.
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B. For six (6) months after the Executive's Date of
Termination, the Company shall at its expense provide
health and medical insurance to Executive and his
family of the same type and scope as was provided
during the term of this Agreement.
C. To the extent not theretofore paid or provided,
the Company shall timely pay or provide to the
Executive any other amounts or benefits required to
be paid or provided or which the Executive is
eligible to receive under any plan, program, policy
or practice or contract or agreement of the Company
and its affiliated companies through the Date of
Termination (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits").
(ii) All unvested plan units of Executive under the Stock
Incentive Program shall vest and the Company shall, within ten
(10) days following the Date of Termination deliver to
Executive the shares of the Company's common stock issuable
upon the conversion of such plan units.
(b) Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this
Agreement shall terminate without further obligations to the
Executive's legal representatives under this Agreement, other than for
payment of Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to the Executive in a
lump sum in cash within 30 days of the Date of Termination and Other
Benefits shall be paid as soon as practicable in accordance with the
most favorable practices, policies and procedures followed by the
Company with respect to members of senior management. In addition, all
unvested plan units of Executive under the Stock Incentive Program
shall vest and the Company shall, within ten (10) days following the
Date of Termination deliver to Executive the shares of the Company's
common stock issuable upon the conversion of such plan units.
(c) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the term of this Agreement,
this Agreement shall terminate without further obligations to the
Executive, other than for payment of Accrued Obligations and the timely
payment or provision of Other Benefits. Accrued Obligations shall be
paid to the Executive in a lump sum in cash within 30 days of the Date
of Termination and Other Benefits shall be paid as soon as practicable
in accordance with the most favorable practices, policies and
procedures followed by the Company with respect to members of senior
management. In addition, all unvested plan units of Executive under the
Stock Incentive Program shall vest and the Company shall, within ten
(10) days following the Date of Termination deliver to Executive the
shares of the Company's common stock issuable upon the conversion of
such plan units.
(d) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause during the term of this
Agreement, this Agreement shall terminate without further obligations
to the Executive other than for payment of Accrued Obligations and the
timely payment or provision of Other Benefits. If the Executive
voluntarily terminates employment during the Employment Period,
excluding a termination for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than for Accrued
Obligations and the timely payment or provision of Other Benefits. In
either event, all Accrued Obligations shall be paid to the Executive in
a lump sum in cash within 30 days of the Date of Termination and all
unvested plan units of Executive under the Stock Incentive Program
shall be forfeited.
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13. Change of Control.
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A Change of Control (as defined below) shall constitute Good Reason as
defined in Section 11(d) of this Agreement and shall entitle Executive to
voluntarily terminate this Agreement in the manner described in Section 11(d)
above and to receive the benefits provided in Section 12(a) above.
For purposes of this Agreement, "Change of Control" shall mean:
(i) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (a "Person") of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (aa) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock")
or (bb) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this
Agreement, the following acquisitions shall not constitute a
Change of Control: (aa) any acquisition directly from the
Company, (bb) any acquisition by the Company, (cc) any
acquisition by any Executive benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company or (dd) any acquisition by any
corporation pursuant to a transaction which complies with
clauses (aa), (bb) and (cc) of subsection (iii) below; or
(ii) (aa) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a
vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or
removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a
Person other than the Board or (bb) a majority of the members
of the Board ceases to be comprised of Directors whose most
recent election to the Board was approved by at least a
majority of the Incumbent Board prior to such election; or
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a "Business
Combination"), in each case, unless, following such Business
Combination, (aa) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more
than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the
corporation resulting from such Business Combination
(including, without limitation, a corporation which as a
result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Company Common Stock
and Outstanding Company Voting Securities, as the case may be,
(bb) no Person (excluding any corporation resulting from such
Business Combination or any Executive benefit plan (or related
trust) of the Company or such corporation resulting from such
Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to
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the extent that such ownership existed prior to the Business
Combination and (cc) at least a majority of the members of the
board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination;
or
(iv) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
14. Nontransferability.
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Neither Executive, Executive's spouse, Executive's designated
contingent beneficiary, nor their estates shall have any right to anticipate,
encumber, or dispose of any payment due under this Agreement. Such payments and
other rights are expressly declared nonassignable and nontransferable except as
specifically provided herein.
15. Indemnification.
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Company shall indemnify Executive and hold Executive harmless from
liability for acts or decisions made by Executive while performing services for
Company to the greatest extent permitted by the Nevada Revised Statutes and
shall advance funds to Executive for the defense of any action, suit or
proceeding prior to the conclusion thereof to the maximum extent permitted by
the Nevada Revised Statutes.
16. Assignment.
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This Agreement may not be assigned by either party without the prior
written consent of the other party.
17. Notice.
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Any notices or other communications required or permitted hereunder
shall be sufficiently given if personally delivered, if sent by facsimile or
telecopy transmission or other electronic communication confirmed by registered
or certified mail, postage prepaid, or if sent by prepaid overnight courier
addressed as follows:
If to Executive, to: Robert E. Holt
1691 Sagewood Way
San Marcos, CA. 92078
If to the Company, to: Videolocity International, Inc.
Attn: Chief Financial Officer
358 S. 700 E. Suite B604
Salt Lake City, Utah 84102
18. Entire Agreement.
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This Agreement is and shall be considered to be the only agreement or
understanding between the parties hereto with respect to the employment of
Executive by Company. All negotiations, commitments, and understandings
acceptable to both parties have been incorporated herein. No letter, telegram,
or communication passing between the parties hereto covering any matter during
this contract period, or any plans or periods thereafter, shall be deemed a part
of this Agreement; nor shall it have the effect of modifying or adding to this
Agreement unless it is distinctly stated in such letter, telegram, or
communication that it is to constitute a part of this Agreement and is attached
as an amendment to this Agreement and is signed by the parties to this
Agreement.
19. Enforcement.
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Each of the parties to this Agreement shall be entitled to any remedies
available in equity or by statute with respect to the breach of the terms of
this Agreement by the other party. Executive hereby specifically acknowledges
and agrees that a breach of the agreements, covenants and conditions contained
in Sections 7, 8, 9 and 10 of this Agreement may cause irreparable harm and
damage to the Company, that the remedy at law, for the breach or threatened
breach of such provisions of this Agreement may be inadequate, and that, in
addition to all other remedies available to the Company for such breach or
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threatened breach (including, without limitation, the right to recover damages),
the Company shall be entitled to injunctive relief for any breach or threatened
breach of such sections of this Agreement.
20. Governing Law.
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This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Utah.
21. Severability.
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If and to the extent that any court of competent jurisdiction holds any
provision or any part thereof of this Agreement to be invalid or unenforceable,
such holding shall in no way affect the validity of the remainder of this
Agreement. Upon a determination that any term or other provision is invalid,
illegal or incapable of being enforced, the Parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the maximum extent possible.
22. Waiver.
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No failure by any party to insist upon the strict performance of any
covenant, duty, agreement, or condition of this Agreement or to exercise any
right or remedy consequent upon a breach hereof shall constitute a waiver of any
such breach or of any covenant, agreement, term, or condition.
23. Litigation Expenses.
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In the event that it shall be necessary or desirable for the Executive
or Company to retain legal counsel and/or incur other costs and expenses in
connection with the enforcement of any or all of the provisions of this
Agreement, the prevailing party shall be entitled to recover from the other
party reasonable attorneys' fees, costs, and expenses incurred by the prevailing
party in connection with the enforcement of this Agreement. Notwithstanding the
foregoing, in the event that following a Change of Control Executive engages
legal counsel to enforce Executive's rights or seek a determination under this
Agreement, the Company shall pay the expenses of such legal counsel regardless
of the outcome of any legal proceeding resulting there from.
24. Survivability.
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The provisions of sections 7, 8, 9, 10, 12, and 13 shall survive
termination of this Agreement.
AGREED AND ENTERED INTO effective as of the date first above written.
Company: Videolocity International, Inc.
By______________________________
Duly Authorized Officer
Executive: Robert E. Holt
______________________________
(Signature)
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