EXHIBIT 10
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ENGAGEMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of March 17, 2000,
between A-Infocom, Inc., a California corporation (hereafter, "Employee"), at
5901 Warner Avenue, #432, Huntington Beach, CA 92649, whose sole shareholder is
R. A. Moss, and Digital Video Display Technologies, Inc., a Nevada Corporation,
c/o The Marshall Firm, 111 West 40th St., 11th Floor, New York, NY 10018
("Employer"), engaged in the worldwide business of providing digital video and
multimedia entertainment content-on-demand to consumers on an open (web-based)
and closed (location based) system.
WHEREAS, the Employee's unique skills, knowledge and experience with
respect to Employer and Employer's business, and Employee's ongoing
participation and employment by Employer, are a most significant and material
inducement in Employer's decision to enter into an employment agreement with
Employee.
WHEREAS, Employer desires to employ A-Infocom, as the Chief Operating
Officer ("COO") of Employer, and Employee desires to be employed in such
capacity;
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the Employer and the
Employee hereby agree as follows:
1. Employment Duties and Agreements
(a) Employer hereby agrees to employ the Employee (the
"Employment") as the COO of Employer, with such senior and
management duties, responsibilities, obligations and powers
commensurate as will be described herein and which as are
assigned to Employee by the President and CEO and the Board
of Directors of Employer; and
(b) Employee hereby accepts the Employment and agrees to serve
Employer during the period described in Paragraph 1(d)
hereof. In rendering services to Employer, Employee shall be
subject to, and agrees to act in accordance with, the
instructions and directions of Employer's CEO and Board of
Directors and all applicable policies and rules thereof.
(c) During the Employment, Employee will be responsible for the
operations and management of the business of Employer on a
day to day basis.
Additionally, should Employer enter into agreements with
individuals or with such entities involved in the
development of additional products related to Employer's
business of which Employee has specific knowledge and skill,
at Employer's request, Employee will participate in various
aspects of such businesses and with individuals in
Employee's area of expertise. As part of Employee's duties,
it will participate in identifying, appointing and
overseeing employees of Employer and other staff necessary
to operate and manage Employer; the appointment of Employees
of Employer shall be subject to prior approval by Employer's
President and CEO and Board of Directors. Employee will
report directly to Employer's CEO and Employee will keep the
Employer's Board of Directors and CEO updated with written
reports concerning Employer on an ongoing basis per the
policies and practices of Employer. All agreements, whether
oral or written, obligating Employer or it's affiliates for
obligations, whether financial or otherwise, must be
approved by the CEO and General Counsel of Employer.
(d) The initial employment term shall be Three (3) years from
the date of execution of this Agreement, ("Initial
Employment Term"), renewable on terms subject to good faith
negotiations and mutual approval on an annual basis with
Three (3) months written notice prior to the expiration of
the initial term, and thereafter each annual term
("Subsequent Annual Employment Terms").
However, it is understood that it is the essence of this
Employment Agreement that Employee will provide its services
to help oversee Employer's business for not less than
Eighteen (18) months from execution of this Agreement.
Should Employee fail to help oversee the business of
Employer for such a period of time to the best of its
ability, according to reasonable industry standards, and on
an exclusive non-compete basis, it will be in breach of this
Agreement and cause irreparable damage to Employer, and be
subject to all equitable and other legal remedies available
to Employer, including Employer's right to terminate
Employee pursuant to the terms of Paragraphs 3(b)(i)-(v),
and 4(a) and stock and option compensation restraints in
paragraphs 2(c) and (d) of this Agreement.
(e) Employee shall be elected and appointed as a member of
Employer's Board of Directors.
(f) The principal office of the Employee shall be at 5901 Warner
Avenue, #432, Huntington Beach, CA 92649, or other office in
the vicinity of the Employer's present office; provided,
that Employee may be required to travel and render services
outside such area at such reasonable times as may be
necessary to perform his duties hereunder.
(g) During the Employment, Employee shall devote, on an
exclusive basis, its professional time and energy,
attention, skills and ability to the performance of the
Employment and shall faithfully and diligently endeavor to
promote the business and best interests of Employer and it's
affiliates and shall make available to Employer and it's
affiliates, when and if requested, all knowledge possessed
by him relating to any aspect of his duties and
responsibilities hereunder, and shall introduce Employer's
executives and Board of Directors and executives of
Employer's affiliates to all individuals personally known to
Employee in the worldwide Internet, kiosk, multimedia and
location based
entertainment industry that Employer and it's affiliates'
employees or Board of Directors wish to meet or do business
with. For the purposes of this Agreement, the term
"worldwide Internet, kiosk, multimedia and location based
entertainment industry" shall be defined as "that industry
involved in designing, building and providing and/or
obtaining information, e-commerce, and entertainment
involving computer graphics, video, film, graphics, music
and music videos, and sports videos on the worldwide
Internet and/or location based kiosks worldwide
(individually, and in any combination thereof) for use in
display on computers, kiosks and/or film and video mediums
or other distribution mediums now known or hereinafter
devised, whether used for entertainment, information or
educational purposes". Nothing in this Paragraph 1(g)
precludes Employee from making passive investments of up to
Five (5%) percent interest in any entity or business which
may be competitive with Employer or it's affiliates, nor any
passive investment of any amount in any entity or business
which is not competitive with Employer or it's affiliates.
Employee hereby agrees to allow Employer to use its, and its
principal officer's and employee's, name, bio and likeness
in connection with information dissemination concerning
their respective companies. Employee agrees not to make
public announcements or publicity about Employer without
first consulting with Employer's CEO and Board of Directors.
Employee agrees to appear and participate with Employer and
it's affiliates in the general promotion of Employer and
it's affiliates as it may reasonably request.
2. Compensation
(a) Base Compensation for Services
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As compensation for the performance by Employee of its
obligations hereunder during the Employment, and provided
that Employee performs its obligations hereunder, Employer
shall pay Employee a base compensation equal to One Hundred
Twenty Thousand ($120,000) dollars per anum. The Employee's
base compensation shall be payable in equal installments no
less frequently than twice each month.
(b) Annual Bonus
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In addition to the base compensation, Employee shall be
awarded, for each fiscal year during the Employment Term, an
annual bonus (the "Annual Bonus") pursuant to Employer's
annual incentive plans (the "Annual Plans"), to be created
and approved by Employer's Board of Directors, at its sole
discretion, based on Employer's overall performance and
Employee's particular contribution to such performance. The
Annual Bonus will be pro rated in the case of a bonus for
any year during which Employee was employed for less than
Twelve (12) months. Each such Annual Bonus shall be paid no
later than the end of the third month of the fiscal year
next following the fiscal year for which the Annual Bonus is
awarded, unless Employee shall elect to defer the receipt of
such Annual Bonus. Notwithstanding the above, it is the
intent of the parties hereto that the Annual Plans meet all
applicable requirements for the exemption of the payments
thereunder from the limitations of Section 162(m) of the
Internal Revenue Code of 1986, as amended, including the
requirement that the Annual Plans be approved by the
shareholders of Employer prior to the
payment of any bonuses thereunder. The Board may award
Employee bonuses other than pursuant to the Annual Plans at
its discretion.
(c) Grant of Stock
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Employee or its designee will be granted One Million
(1,000,000) shares of Common Stock of Employer at .01 no par
value, which will be 144 Stock, restricted and bearing a
legend to the fact on the stock certificate for a period of
Two (2) years from the date of grant, and as an inducement
to the requirement that Employee provide the individual
services of its principal shareholder Randy A. Moss, for a
period of at least Eighteen (18) months; the One Million
(1,000,000) shares will be earned, vested and transferred to
Employee 1/3, 1/3, 1/3 -i.e., 333,333 shares on September
17, 2000; 333,333 shares on March 17, 2001; and 333,334
shares on September 17, 2001, provided that on each such
date Employee is still employed by Employer as COO of
Employer.
(d) Stock Options
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Employee or its designee will be granted, as of the
effective date hereof, a stock option (the "Option") to
purchase One Hundred Thousand (100,000) shares at the option
price of Five ($5.00) dollars per share of the Employer's
common stock ("Stock"). Employee acknowledges that certain
action will need to be taken by the Compensation Committee
of Employer's Board of Directors to effectuate such Option
grant. The exercise price with respect to each share of
Stock subject to the Option will be the average between the
high bid price and low ask price of the Stock on the over
the counter or NASDAQ market on the date of exercise. The
Option will become exercisable at specific times according
to the plan created by the Compensation Committee.
(e) Expenses
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Employee shall be entitled to receive prompt reimbursement
from Employer for all documented business expenses incurred
by it in the performance of its duties hereunder, provided
that Employee properly accounts therefore in accordance with
Employer's reimbursement policy, including, without
limitation, the submission of supporting evidence as
reasonably requested by Employee.
(f) Other Benefits
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(i) During the Employment, Employee shall be entitled to
participate in such medical, disability, life, accident
or other insurance or welfare plans, programs or
arrangements as are offered generally to the Employees
of Employer and it's affiliates.
(ii) Employee shall be entitled to Four (4) weeks paid
vacation with respect to each calendar year of the
Employment.
(g) Employee, and not Employer, will be responsible to pay any
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and all required federal, state, local and other government
withholdings or deductions required under applicable tax
laws, and Employee, including
its sole officer, Randy A. Moss, personally, and
corporately, indemnifies Employer and each of its Officers
and individual members of the Board of Directors and
affiliates, against any financial and/or other legal
consequences and penalties that such Officers, Board Members
or Employer may incur based on Employee's failure to pay,
withhold or deduct such applicable taxes.
3. Termination Events
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(a) Employment shall commence on the date hereof, and will
continue unless terminated by a Termination Event, as
defined below.
(b) For purposes of this Agreement, the following events shall
constitute "Termination Events":
(i) the expiration of the Initial Employment Term or the
expiration of any Subsequent Annual Employment Terms
when there are no provisions for automatic renewals or
extensions;
(ii) Death of Employee's principal shareholder, R. A. Moss
(iii)Employee's failure to substantially perform the duties
required of him hereunder for a period of Three (3)
consecutive months or for shorter periods aggregating
Three (3) months during any Six (6) month period, on
account of a physical or mental disability or
incapacity, as verified by a written statement from a
physician mutually agreeable to Employer and Employee;
(iv) the termination of Employment by Employer for "Cause".
For purposes of this Agreement, the term "Cause", when
used in connection with the termination of the
Employment by Employer, shall mean Employee's or
Employee's principal shareholder, R. A. Moss' (a)
commission of fraudulent or criminal acts; (b) failure
to act exclusively in the worldwide Internet, kiosk,
multimedia and location based entertainment industry as
defined in Paragraph 1(g), above, on behalf of Employer
in breach of this Employment Agreement; (c) acting
solely or with others in competition with Employer
without Employer's Board of Directors' prior written
consent; (d) failure to substantially perform duties
required of it or its principal shareholder, R. A.
Moss, hereunder for a period of Three (3) consecutive
months or for shorter periods aggregating Three (3)
months during any Six (6) month period; or (e) material
breach of this Agreement.
(v) the voluntary termination of Employment by the
Employee, other than for "Good Reason". For purposes of
this Agreement, the term "Good Reason", when used in
connection with the voluntary termination of the
Employment by the Employee, shall mean the assignment
to the Employee of any duties inconsistent with the
terms of this Agreement or that could result in an
assertion of a breach thereof.
(vi) the voluntary termination of Employment by Employee for
Good Reason.
(vii)This Agreement shall not limit the right of the Board
of Directors of Employer to terminate the Employment at
any time, whether or not for Cause.
4. Payments Upon Termination of Employment
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In the event of the termination of the Employment, either by
Employer or by Employee, Employee shall be entitled to receive
payments from Employer as follows:
(a) Payments in the Event of a Termination Event Described in
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Paragraph 3(b)(i)-(v):
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Upon the termination of Employment as a result of a
Termination Event described in Section 3(b)(i)-(v), above,
Employee shall be entitled to any base compensation and
vacation pay due and owing at the date of such termination,
but not yet paid. The Employee shall not be entitled to any
other compensation or payments hereunder after the date of,
or otherwise with respect to, such termination of the
Employment.
(b) Payments Upon Termination of Employment as a Result of
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Events Described in Paragraphs 3(b)(vi) or 3(b)(vii):
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(i) Upon the termination of Employment as a result of
Termination Events described in Section 3(b)(vi) above,
the Employee shall be entitled to and paid on last date
of Employment any base compensation and pro rated
Annual Bonus, if any, which may be due and owing at the
date of such termination, but not yet paid, plus the
base compensation that would have been payable to
Employee through the expiration of the Initial
Employment Term.
(ii) Upon the termination of Employment as a result of
Termination Events described in Section 3(b)(vii),
above, the Employee shall be entitled to and paid on
last date of Employment and any base compensation and
pro rated Annual Bonus, if any, which may be due and
owing at the date of such termination, but not yet
paid, plus the base compensation that would have been
payable to Employee through the expiration of the
Initial Employment Term.
5. Ownership of Work Product and Ideas
-----------------------------------
During the Employment, any discoveries, inventions, patents,
materials, licenses and ideas related to the worldwide Internet,
kiosk, multimedia and location based entertainment industry
(whether or not patentable or copyrightable and whether created
and owned by Employee personally or owned by Employer prior to or
after the execution of this Agreement) ("Work Product") and all
business opportunities introduced to Employee during the
Employment Term within said worldwide Internet, kiosk, multimedia
and location based entertainment industry, as defined in
Paragraph 1(g), above, will be owned by and belong exclusively to
Employer, and Employee will have no personal interest in such.
Employee will, in such connection, promptly disclose such Work
Product and business opportunities in such industry in which he
may now own an interest.
6. Protection of Confidential Information
--------------------------------------
(a) Employee acknowledges that during the course of his
Employment, he will acquire Proprietary Information and
Trade Secrets (as hereinafter defined) of Employer and it's
potential affiliated companies (Employer and affiliated
companies). For purposes of this Agreement:
(i) "Proprietary Information" shall mean all unpublished
materials and information created, discovered, owned or
otherwise controlled by Employer and affiliated
companies relating to the products of Employer and
affiliated companies, including, but not limited to,
financial information, data or statements, product
research and development, existing and future product
plans, designs and schematics, patents, client lists,
computer data, documentation, algorithms, processes and
know-how (whether or not reduced to writing and whether
or not patentable or copyrightable), and business and
marketing plans and strategies, pricing policies, cost
and profit information, supplier identities, packaging
and the like, whether disclosed orally, in writing, or
by inspection. Proprietary Information shall also
include all other materials and information which have
been clearly identified by Employer as Proprietary
Information, Trade Secrets or Confidential Information.
The term "Proprietary Information" shall not include
any information which is now generally known or
available or which hereafter, through no act or failure
on the part of Employee, becomes generally known or
available;
(ii) "Trade Secrets" shall mean the whole or any portion or
phase of any scientific or technical information,
design, process, procedure, formula or improvement
which is secret and is not generally available to the
public, which Employer and affiliated companies may
consider confidential, and which gives the one who uses
it an advantage over competitors who do not know of or
use the Trade Secret. The Trade Secrets may include,
without limitation, information relating to programs or
products now existing or currently under design or
development.
(b) Non-Disclosure
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Employee agrees to hold the Proprietary Information and
Trade Secrets of which Employee may acquire knowledge
hereunder in the strictest confidence unless ordered to
disclose same subject to legal proceeding instituted by
third parties or as required to fulfill authorized
government requirements. Employee further agrees not to
disclose any Proprietary Information or Trade Secrets except
to the Board of Directors and employees and consultants of
Employer, if any, who reasonably require the same for the
purposes hereof and who are bound by a confidentiality
agreement in form and substance.
(c) Return of Documents and Materials
---------------------------------
Employee agrees to use his best efforts to deliver promptly
upon the termination of Employment, and at any other time as
Employer may request, all documents, technology, software,
source codes, object codes, hardware (and all copies
thereof), in whatever medium, relating to
the business of the Employer or any affiliated employer he
possesses or has under his control.
7. Covenant Not to Compete and Covenant Not to Solicit
---------------------------------------------------
(a) Employee agrees that during the Employment Terms, as such
are defined in Paragraph 1(d), above, ("Initial Non-Compete
Term"), he will not compete, directly or indirectly, with
Employer or any of it's affiliated companies within the
worldwide Internet, kiosk, multimedia and location based
entertainment industry; and
(b) Upon termination of said Employment Terms, provided that
such termination occurs because of expiration or because
Employee is terminated for Cause or voluntarily, as both are
defined in Paragraph 3(b)(i)-(v), above, and for Two (2)
years after such termination ("Second Non-Compete Term"),
Employee will not compete, directly or indirectly, with
Employer or it's affiliated companies within the worldwide
Internet, kiosk, multimedia and location based entertainment
industry; and
(c) Should Employee be terminated by Employer's Board of
Directors other than for Cause prior to the expiration of
any Employment Term, or Employee leaves for Good Reason, as
both are defined in Paragraphs 3(b)(vi) and 3(b)(vii),
Employee will not compete, directly or indirectly, with
Employer or any of it's affiliated companies for a period of
One (1) year from such involuntary termination ("Third
Non-Compete Term"); and
(d) Employee agrees that, during any or all of the Non-Compete
Terms set forth in this Paragraph 7, he will not directly or
indirectly, either as a principal, agent, employee,
employer, consultant, Five (5%) percent or more stockholder,
partner, or in any other personal representative capacity
whatsoever, whether through a corporation, partnership,
trust, sole proprietorship or any other organization, engage
in or assist any other person to engage in, businesses
directly competitive with Employer and any of it's
affiliated companies, nor will he solicit or assist others
to solicit or divert employees of Employer or any of it's
affiliated companies to terminate his or her Employment with
Employer.
However, it is understood and agreed that during the Second
and Third Non-Compete Terms as defined above, Employee may
engage in, or induce others who are not employees of
Employer or any of it's affiliated companies to engage in,
business opportunities in the worldwide Internet, kiosk,
multimedia and location based entertainment industry offered
to Employer or any of it's affiliated companies during the
Initial Non-Compete Term, but which Employer or any of it's
affiliated companies refused to pursue during such Initial
Non-Compete Term, as long as such businesses do not directly
compete with Employer or any of it's affiliated companies.
8. Conflicting Agreements
----------------------
Employee warrants and represents that he has disclosed to
Employer any existing or proposed agreements to which Employee is
a party that may adversely affect Employee's ability to render
its services to Employer hereunder.
9. Indemnification
---------------
Employee hereby indemnifies and holds harmless Employer or any of
it's affiliated companies and their directors, officers, agents
and employees from and against all claims, demands and causes of
action (including, without limitation, reasonable attorneys fees,
court costs and other liabilities) arising out of or in
connection with Employee's breach of its obligations under this
Agreement, including, without limitation, its or its principal
shareholder, R. A. Moss', obligations pursuant to Paragraph 2(g),
above, or any of his activities prior to the execution of this
Agreement. Nothing in this Section 9 imposes on Employee the
obligation to indemnify the Employer or any of it's affiliated
companies with respect to any damages resulting from Employer's
intentional torts or acts of negligence.
10. General Provisions
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(a) Expenses for this Agreement
---------------------------
All costs and expenses incurred by either of the parties in
connection with the negotiation of this Agreement shall be
paid by that party.
(b) Notices
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ALL NOTICES, DEMANDS AND OTHER COMMUNICATIONS HEREUNDER SHALL BE
in writing and shall be given or made (and shall be deemed
to have been duly given or made upon receipt) by delivery in
person, by overnight courier service, by cable, by telecopy,
by telegram, by telex or by registered or certified mail,
return receipt requested, to the respective parties at the
following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this
Section 10(b)):
(i) If to Employer:
Digital Video Display Technologies, Inc.
c/o The Marshall Firm
111 West 40th St., 11th Floor
New York, NY 10018
Attention: Marilyn G. Haft
Telecopy No.: (212) 382-3610 or (212) 749-3194
E-Mail: shahanam@themarshallfirm.com
(ii) If to Employee:
R. A. Moss
A-Infocom, Inc.
5901 Warner Avenue, #432
Huntington Beach, CA 92649
Telecopy No.: (714) 377-8854
E-Mail: randy@aspyre.net
(c) Headings
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The description headings contained in this Agreement are for
convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
(d) Successors; Binding Agreement
-----------------------------
This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs,
devisees, legatees, executors, administrators, successors
and personal or legal representatives. If Employee is
domiciled in a community property state or a state that has
adopted the Uniform Marital Property Act or equivalent or if
Employee is domiciled in a state that grants to his spouse
any other marital rights in Employee's assets (including,
without limitation, dower rights or a right to elect against
Employee's will or to claim a forced share of Employee's
estate), this Agreement shall also inure to the benefit of,
and shall also be binding upon, his spouse. If Employee
should die while any amounts would still be payable to him
hereunder if he had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Employee's
designee or, if there be no such designee, to Employee's
heirs, devisees, legatees or executors or administrators of
Employee's estate, as appropriate.
(e) Severability
------------
If any provision of this Agreement is held to be illegal,
invalid or unenforceable under existing or future laws
effective during the term of this Agreement, such provisions
shall be fully severable, the Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Agreement, and
the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of such
illegal, invalid or unenforceable provision, there shall be
added automatically as part of this Agreement a provision as
similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and
enforceable.
(f) Entire Agreement
----------------
This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and
thereof and supersedes all prior agreements and
understandings, both written and oral, between Employer and
Employee with respect to the subject matter hereof and
thereof.
(g) Assignment
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This Agreement and the rights and duties hereunder are not
assignable by Employee, except that Employee shall have the
right to assign payments and compensation to any one third
party, provided that such assignee has no other beneficial
rights whatsoever in and to this Agreement. It is also of
essence to and an inducement to this Agreement that Randy
Moss, the principal shareholder of Employee, personally and
individually perform the services herein, and Employee may
not assign the obligation to perform such services to any
other individual or entity without Employer's prior written
consent. Should Employee in its corporate capacity cease to
exist or become bankrupt or fail to perform its obligations
hereunder, Randy Moss hereby individually guarantees to
perform Employee's obligations hereunder and indemnifies
Employer, its Officers, directors, agents representatives
and affiliates against any and all claims, losses and
actions which may arise due to Employee, in its corporate
capacity's, failure to perform such obligations under this
Agreement. This Agreement and the
rights and duties hereunder may not be assigned by the
Employer without the express written consent of Employee
(which consent may be granted or withheld in the sole
discretion of Employee), except such consent shall not be
required in order for Employer to assign this Agreement or
the rights or duties hereunder to an affiliate of Employer
or to a third party in connection with the merger or
consolidation of Employer with, or the sale of all or
substantially all of the assets or business of Employer to,
that third party.
(h) Amendment; Waiver
-----------------
This Agreement may not be amended or modified except by an
instrument in writing signed by, or on behalf of, Employer
and Employee. Either party to this Agreement may (a) extend
the time for the performance of any of the obligation or
other acts of the other party or (b) waive compliance with
any of the agreements or conditions of the other party
contained herein. Any such extension or waiver shall be
valid only if set forth in an instrument in writing signed
by the party to be bound thereby. Any waiver of any term or
condition shall not be construed as a waiver of any
subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of
this Agreement. The failure of any party to assert any of
its rights hereunder shall not constitute a waiver of any
such rights.
(i) Governing Law
-------------
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York,
applicable to contracts executed in and to be performed
entirely within that state.
(j) Jurisdiction and Venue
----------------------
The parties hereto agree that all actions or proceedings
initiated by either party hereto and arising directly or
indirectly out of this Agreement which are brought pursuant
to judicial proceedings shall be litigated in a Federal or
State court located in New York County, New York. The
parties hereto expressly submit and consent in advance to
such jurisdiction and agree that service of summons and
complaint or other process or papers may be made by
registered or certified mail, return receipt requested,
addressed to the relevant party at the address to which
notices are to be sent pursuant to Section 10(b) of this
Agreement. The parties hereto waive any claim that a Federal
or State court located in New York County, New York is an
inconvenient forum or an improper forum based on lack of
venue.
(k) Equitable Relief
----------------
Employee acknowledges that the covenants contained in
Sections 5, 6 and 7 are reasonable and necessary to protect
the legitimate interests of Employer, that in the absence of
such covenants will result in irreparable injury to Employer
and that the remedy at law for such breach or threatened
breach would be inadequate. Accordingly, Employee agrees
that Employer, in addition to any other rights or remedies
which it may have, shall be entitled to seek such equitable
and injunctive relief as any be available from any court of
competent jurisdiction to restrain Employee from any breach
or threatened breach of such covenants.
(l) Attorneys' Fees
---------------
If any legal action or other proceeding is brought for the
enforcement of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and other
costs incurred in that action or proceeding, in addition to
any other relief to which it may be entitled.
(m) Counterparts
------------
This Agreement may be executed in one or more counterparts,
and by the parties hereto in separate counterparts, each of
which when executed shall be deemed to be an original while
all of which taken together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, Employer and Employee have executed this Agreement
as of the date and year first written above.
A-INFOCOM, INC: DIGITAL VIDEO DISPLAY TECHNOLOGIES,
INC:
By: ___________________________ By:_______________________________
Title: ___________________________ Title:_____________________________
Print Name _______________________ Print Name:________________________
RANDY A. MOSS, INDIVIDUALLY, AS TO THOSE TERMS APPLICABLE TO HIM:
By: /s/ RANDY A. MOSS
----------------------
Randy A. Moss