EXHIBIT
10.2
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “
Agreement ”) is made, entered into and effective as of
October 30, 2006 (the “ Effective Date ”),
between GoFish Corporation (the “ Company ”),
and Lennox Vernon, an individual (the “ Executive
”).
WHEREAS, the Company and the Executive wish to
memorialize the terms and conditions of the Executive’s
employment by the Company in the position of Chief Accounting
Officer and Director of Operations (“CAO”);
NOW, THEREFORE, in consideration of the
covenants and promises contained herein, the Company and the
Executive agree as follows:
1. Employment Period . The Company offers to employ the Executive,
and the Executive agrees to be employed by Company, in accordance
with the terms and subject to the conditions of this Agreement. The
Company and the Executive agree that the Executive is employed
“at will” which means that the employment relationship
may be terminated by either party at any time, for any reason or no
reason, subject to the provisions of Section 11 below (the period
during which the Executive is employed by the Company hereinafter
referred to as the “ Employment Period ”). The
Executive affirms that no obligation exists between the Executive
and any other entity which would prevent or impede the
Executive’s immediate and full performance of every
obligation of this Agreement.
2. Position and Duties . During the term of the Executive’s
employment hereunder, the Executive shall continue to serve in, and
assume duties and responsibilities consistent with, the position of
CAO of a public company, which may include, but are not limited to,
serving a key executive role in the overall leadership, management,
and strategic direction of the Company, assuming responsibility for
the overall financial management of the Company, and managing
operations vital to the organization, including human resources,
administration, and risk management, as the Chief Executive Officer
of the Company shall determine from time to time. The Company
agrees that between the Effective date and November 20, 2006, the
Executive may work part time in order to allow him to fulfill
certain existing business commitments. Thereafter, the Executive
agrees to devote to the Company substantially all of his working
time, skill, energy and best business efforts during the term of
his employment with the Company, and the Executive shall not engage
in business activities outside the scope of his employment with the
Company if such activities would detract from or interfere with his
ability to fulfill his responsibilities and duties under this
Agreement or require substantial amounts of his time or of his
services.
3. No Conflicts . The Executive covenants and agrees that for so
long as he is employed by the Company, he shall inform the Company
of each and every future business opportunity presented to the
Executive that arises within the scope of the Business of the
Company (as defined below) and would be feasible for the Company,
and that he will not, directly or indirectly, exploit any such
opportunity for his own account.
4. Hours of Work . The Executive’s normal days and hours of
work shall coincide with the Company’s regular business
hours. The nature of the Executive’s employment with the
Company requires flexibility in the days and hours that the
Executive must work, and may necessitate that the Executive work on
other or additional days and hours.
5. Location . The locus of the Executive’s employment
with the Company shall be San Francisco, California and, from time
to time as determined by the Company, any other locus where the
Company now or hereafter has a business facility.
(a) Base Salary . During the term of this Agreement, the Company
shall pay, and the Executive agrees to accept, in consideration for
the Executive’s services hereunder, pro rata
payments, twice a month, of the annual salary of $160,000, less all
applicable taxes and other appropriate deductions. The
Executive’s salary for the calendar year 2006 shall be paid
pro rata for the portion of the year he is an
employee.
In consideration for the Executive’s
services during the time period extending from the Effective Date
until November 20, 2006, while the Executive works for the Company
part time, the Company shall pay, and the Executive agrees to
accept, instead of the pro rata portion of the annual
salary set forth above in this Section 6(a), one fourth (1/4) of
the pro rata portion of the annual salary set forth above
in this Section 6(a).
The Compensation Committee (the “
Compensation Committee ”) of the Board of Directors
(the “ Board ”) shall also review the
Executive’s base salary annually and shall make a
recommendation to the Board as to whether such base salary should
be increased but not decreased, which decision shall be within the
Board’s sole discretion.
(b) Annual Bonus . During the term of this Agreement, the
Executive shall be entitled to an annual bonus to be determined in
consultation with the Board, as follows:
(i) If the Executive accomplishes goals to be
determined by the Company’s CEO in consultation with the
Executive during a calendar year, excluding the calendar year 2006,
the Executive will be entitled to an annual bonus of up to 15% of
the Executive’s base salary.
(ii) The annual bonus set forth in Section 6(b)(i)
above shall be paid by the Company to the Executive on or before
April 15 th , and in any event upon completion of the
Company’s audit, following the calendar year of the
Employment Period in which such bonus was earned.
No bonus shall be paid for the calendar year
2006.
7. Expenses . During the term of this Agreement, the
Executive shall be entitled to payment or reimbursement of any
reasonable expenses paid or incurred by him in connection with and
related to the performance of his duties and responsibilities
hereunder for the Company. All requests by the Executive for
payment or reimbursement of such expenses shall be supported by
appropriate invoices, vouchers, receipts or such other supporting
documentation in such form and containing such information as the
Company may from time to time require, evidencing that the
Executive, in fact, incurred or paid said expenses.
8. Vacation . During the term of this Agreement, the
Executive shall be entitled to accrue, on a pro rata
basis, 15 vacation days per year, as a combination of Paid Time Off
and Paid Vacation allocation. However, from the date of execution
of this agreement until the end of 2007 the Executive shall be
entitled to accrue, on a pro rata basis, 15 vacation days
per year as a combination of Paid Time Off and Paid Vacation
allocation, as defined below in Sections 8(a) and 8(b). The
Executive shall be entitled to carry over any accrued, unused Paid
Vacation days from year to year without limitation.
9. Stock Options . The Company hereby agrees that the Executive
shall be granted a stock option on the terms and conditions
hereinafter stated:
(a) Grant of Option . On the Effective Date, the Company will grant
the Executive an option to purchase an aggregate of 62,500 shares
of the Company’s common voting stock (the “
Option ”) under the Company’s 2006 Equity
Incentive Plan (the “ Equity Incentive Plan ”).
Such grant shall be evidenced by an Option Agreement as
contemplated by the Equity Incentive Plan. In subsequent years the
Executive shall be eligible for such grants of Options and other
permissible awards (collectively with the Options,
“Awards”) under the Equity Incentive Plan as the
Compensation Committee or the Board shall determine.
(b) Option Price; Term . The exercise price of the Option shall be
$1.50 per share, which represents the fair market value per share
of Company common voting stock on the Effective Date. The term of
the Option shall be ten years from the date of grant.
(c) Option Vesting and Exercise
. Twenty-five percent (25%) of the
Option shall be vested and exercisable on the first anniversary of
the date of the grant of the Option. On the last day of each month
thereafter, continuing to the fourth anniversary of the date of the
grant of the Option, an additional one forty-eighth of the Option
shall vest, subject to Section 9(d).
(d) Termination of Service; Accelerated
Vesting .
(i) If the Executive’s employment is
terminated for Cause, as such term is defined below, all Awards,
whether or not vested, shall immediately expire effective the date
of termination of employment.
(ii) If the Executive’s employment is
terminated voluntarily by the Executive without Good Reason, as
such term is defined below, all unvested Awards shall immediately
expire effective the date of termination of employment. Vested
Awards, to the extent unexercised, shall expire one month after the
termination of employment.
(iii) Except as set forth in Section 9(d)(iv), if the
Executive’s employment is terminated (i) by the Company
without Cause, as defined below; (ii) by the Executive for Good
Reason, as defined below; or (iii) upon death or Disability, as
defined below, all unvested Awards shall immediately expire and the
vested Awards, to the extent unexercised, shall expire one year
after any such event.
(iv) If the Executive’s employment is
terminated as a result of a circumstance contemplated in Section
11(e)(i)(C), all unvested Awards shall immediately vest and become
exercisable effective on the date of termination of employment, and
to the extent unexercised, shall expire one year after any such
event.
(e) Payment . The full consideration for any shares
purchased by the Executive upon exercise of the Options shall be
paid in cash.
(a) During the term of this Agreement, the
Executive shall be eligible to participate in incentive, savings,
retirement (401(k)), and welfare benefit plans, including, without
limitation, health, medical, dental, vision, life (including
accidental death and dismemberment) and disability insurance plans
(collectively, “ Benefit Plans ”), in
substantially the same manner, including but not limited to
responsibility for the cost thereof, and at substantially the same
levels, as the Company makes such opportunities available to all of
the Company’s managerial or salaried executive
employees.
(b)
The Executive’s spouse and
dependent minor children will be covered under the Benefit Plans
providing health, medical, dental, and vision benefits, in
substantially the same manner, including but not limited to
responsibility for the cost thereof, and at substantially the same
levels, as the Company makes such opportunities available to the
spouses and dependent minor children to all of the Company’s
managerial or salaried executive employees.
(c)
Until such time as the Executive
becomes covered by Company medical coverage, the Company shall
reimburse the Executive for the Executive’s medical coverage
currently in place.
11. Termination of Employment
.
(a) Death . In the event that during the term of this
Agreement the Executive dies, this Agreement and the
Executive’s employment with the Company shall automatically
terminate and the Company shall have no further obligations or
liability to the Executive or his heirs, administrators or
executors with respect to compensation and benefits accruing
thereafter, except for the obligation to pay the Executive’s
heirs, administrators or executors any earned but unpaid base
salary, unpaid pro rata annual bonus, and unused vacation
days accrued through the date of death, and to reimburse, pursuant
to Section 7, any expenses incurred through the date of death;
provided , that nothing contained in this paragraph shall
be deemed to excuse any breach by the Company of any provision of
this Agreement. All payments due hereunder shall be made within 45
days after the Executive’s death; provided, however, that
payment of any pro rata annual bonus shall be made as
specified in Section 11(g). The Company shall deduct, from all
payments made hereunder, all applicable taxes, including income
tax, FICA and FUTA, and other appropriate deductions.
(b) “ Disability .” In the event
that, during the term of this Agreement, the Executive shall be
prevented from performing his duties and responsibilities hereunder
to the full extent required by the Company by reason of Disability
(as defined below) this Agreement and the Executive’s
employment with the Company shall automatically terminate and the
Company shall have no further obligations or liability to the
Executive or his heirs, administrators or executors with respect to
compensation and benefits accruing thereafter, except for the
obligation to pay the Executive or his heirs, administrators or
executors any earned but unpaid base salary, unpaid pro
rata annual bonus and unused vacation days accrued through the
Executive’s last date of employment with the Company, and to
reimburse, pursuant to Section 7, any expenses incurred through the
Executive’s last day of employment with the Company;
provided , that nothing contained in this paragraph shall
be deemed to excuse any breach by the Company of any provision of
this Agreement. All payments due hereunder shall be made within 15
days after the date of termination of the Executive’s
employment; provided , however, that payment of any
pro rata annual bonus shall be made as specified in
Section 11(g). The Company shall deduct, from all payments made
hereunder, all applicable taxes, including income tax, FICA and
FUTA, and other appropriate deductions through the last date of the
Executive’s employment with the Company. For purposes of this
Agreement, “ Disability ” shall mean a physical
or mental disability that prevents the performance by the
Executive, with or without reasonable accommodation, of his duties
and responsibilities hereunder for a period of not less than an
aggregate of three months during any twelve consecutive
months.
(i) At any time during the term of this Agreement,
the Company may terminate this Agreement and the Executive’s
employment hereunder for “Cause.” For purposes of this
Agreement, “ Cause ” shall be defined as the
occurrence of: (A) gross neglect, malfeasance or gross
insubordination in performing the Executive’s duties under
this Agreement; (B) the Executive’s conviction for a felony,
excluding convictions associated with traffic violations; (C) an
egregious act of dishonesty (including without limitation theft or
embezzlement) or a malicious action by the Executive toward the
Company’s customers or employees; (D) a willful and material
violation of any provision of Sections 12 and 13 hereof; (E)
intentional reckless conduct that is materially detrimental to the
business or reputation of the Company; or (F) material failure,
other than by reason of Disability, to carry out reasonably
assigned duties or instructions consistent with the title of
Chief Accounting Officer (provided that material failure to
carry out reasonably assigned duties shall be deemed to constitute
Cause only after a finding by the Board of Directors, or a duly
constituted committee thereof, of material failure on the part of
the Executive and the failure to remedy such performance to the
Board’s or the committee’s satisfaction within 30 days
after delivery of written notice to the Executive of such finding
setting forth those duties that are not being performed by the
Executive).
(ii)
Upon termination of this Agreement
for Cause, the Company shall have no further obligations or
liability to the Executive or his heirs, administrators or
executors with respect to compensation and benefits thereafter,
except for the obligation to pay the Executive any earned but
unpaid base salary, unpaid pro rata annual bonus, and
unused vacation days accrued through the Executive’s last day
of employment with the Company, and to reimburse, pursuant to
Section 7, any expenses incurred through the Executive’s last
day of employment with the Company. All payments due hereunder
shall be made within 15 days after the date of termination of the
Executive’s employment; provided, however, that payment of
any pro rata annual bonus shall be made as specified in
Section 11(g). The Company shall deduct, from all payments made
hereunder, all applicable taxes, including income tax, FICA and
FUTA, and other appropriate deductions.
(d)
Change of Control
. For purposes of this Agreement,
“ Change of Control ” means the occurrence of,
or the Company’s Board’s vote to approve: (A) any
consolidation or merger of the Company pursuant to which the
stockholders of the Company immediately before the transaction do
not retain immediately after the transaction, in substantially the
same proportions as their ownership of shares of the
Company’s voting stock immediately before the transaction,
direct or indirect beneficial ownership of more than 50% of the
total combined voting power of the outstanding voting securities of
the surviving business entity; (B) any sale, lease, exchange or
other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company other than any sale, lease, exchange or other transfer to
any company where the Company owns, directly or indirectly, 100% of
the outstanding voting securities of such company after any such
transfer; or (C) the direct or ind
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