Exhibit
10.5
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “
Agreement ”) is made, entered into and effective as of
_________________ (the “ Effective Date ”),
between GoFish Corporation, its affiliates, successors and assigns
(the “ Company ”), and___________, 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
____________;
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,
commencing on the Effective Date and terminating on the thirty (30)
month anniversary of the Effective Date (the “ Scheduled
Termination Date ”), unless terminated in accordance with
the provisions of Section 10 below, in which case the provisions of
Section 10 shall control; provided, however , that unless
either party provides the other party with written notice of his or
its intention not to renew this Agreement at least thirty (30) days
prior to the expiration of the initial term or any renewal term of
this Agreement (as the case may be), this Agreement shall
automatically renew for additional one-year periods commencing on
the day after such expiration date. The Executive affirms that the
Executive will not violate any legal obligation by entering into
this Agreement and performing the Executive’s obligations
hereunder. The Company affirms that the Company will not violate
any legal obligation by entering into this Agreement and performing
the Company’s obligations hereunder.
2.
Position and Duties
. During the term of the
Executive’s employment hereunder, the Executive shall
continue to serve in the position of ________________ of the
Company, and discharge duties and responsibilities consistent
therewith. The Executive shall have oversight for [DESCRIPTION OF
RESPONSIBILITIES], and such other responsibilities and duties as
are consistent with the Executive’s position. The Executive
agrees not to engage in business activities outside the scope of
his employment with the Company if such activities
would materially detract from or interfere with his ability to
fulfill his responsibilities and duties under this
Agreement and agrees to act in a manner consistent with the
concept that his primary work responsibility is serving as
_________________ of the Company.
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 material, bona fide 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 without first
affording the Company the opportunity to do so and obtaining the
Company’s consent to pursue the opportunity. [The Company is
aware of and consents to the Executive’s continued
involvement in ______________________ in a non executive role. [IF
APPLICABLE]]
4. Location . The Executive’s primary office shall be
at the Company’s office located in New York, NY. The
Executive understands that he will spend such time as reasonably
needed in the Company’s San Francisco office, or any other
locus where the Company now or hereafter has a business facility,
as determined by the Executive in consultation with the
Board.
(a) Base Salary . During the period from the Effective Date
through December 31, 2007, the Company shall pay, and the Executive
agrees to accept, in consideration for the Executive’s
services hereunder, pro rata bi-weekly payments of the
annual salary of$________________, less all applicable taxes and
other appropriate deductions.
The Compensation Committee (the
“Compensation Committee”) of the Company’s board
of Directors (the “Board”) shall review the
Executive’s base salary annually by no later than January 31
of each year beginning with January 2008 and shall make a
recommendation to the Board as to whether such base salary should
be increased, which decision shall be within the Board’s sole
discretion, with any increases to be implemented retroactively to
January 1 of the relevant year; provided [DESCRIBE SPECIFIC
TERMS].
(b) Commissions . During the term of this Agreement, the
Executive shall be entitled to receive commissions which are earned
and paid quarterly based on sales closed. [DESCRIPTION OF
TERMS]
(c) Contingent Commencement Bonus. The Executive
shall be entitled to a commencement bonus, provided [DESCRIPTION OF
TERMS AND CONTINGENCIES] (the “Contingent Commencement
Bonus”).
6. Expenses . During the term of this Agreement, the
Executive shall be entitled to payment or reimbursement (at the
Executive’s option) of any reasonable expenses incurred or
paid 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 .
7. Vacation . During the term of this Agreement, the
Executive shall be entitled to accrue, on a pro rata
basis, 20 vacation days, per year. The Executive shall be entitled
to carry over any accrued, unused vacation days from year to year
without limitation and any accrued but unused vacation shall be
paid out within 10 business days following the Executive’s
final day of employment, or earlier if required by law.
8. Stock Options . From time to time in its sole discretion, the
Company may grant to the Executive stock options on the terms and
conditions hereinafter stated:
(a) Grant of Options . The Company may, in its sole discretion,
decide to grant the Executive an option to purchase shares of the
Company’s common voting stock (the “ Option
”) under the Company’s 2006 Stock Option Plan (the
“ Stock Option Plan ”). Any such grant shall be
evidenced by an Option Agreement as contemplated by the Stock
Option Plan. The Executive shall be eligible for such grants of
Options and other permissible awards (collectively with Options,
“Awards”) under the Stock Option Plan as the
Compensation Committee or the Board shall determine.
(b) Option Price; Term . The per share exercise price of the Option
shall be the fair market value per share of Company common voting
stock at the opening of the market on the date of the grant. The
term of the Option shall be ten years from the date of
grant.
(c) Vesting and Exercise . [DESCRIPTION OF TERMS AND
CONDITIONS].
(d) Termination of Service; Accelerated
Vesting .
(i) If the Executive’s employment is
terminated for Cause, 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 120 days after termination of the 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 120 days after the
termination of employment.
(iii) If the Executive’s employment terminates
on account of death or Disability, as defined below, all unvested
Awards shall immediately expire effective the date of termination
of employment. Vested Awards, to the extent unexercised, shall
expire one year after the termination of employment.
(iv) If the Executive’s employment is
terminated (A) in connection with a Change of Control, as defined
below, (or following a Change of Control event), (B) by the Company
without Cause, or (C) by the Executive for Good Reason, all
unvested Awards shall immediately vest and become exercisable
effective the date of termination of employment, and, to the extent
unexercised, shall expire one year after any such event.
(a) Throughout the term of this Agreement, the
Executive shall be eligible to participate in all 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 any other executive employees. In
addition, the Executive shall be entitled to any perquisites to
which the Company and the Executive agree as.
(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)
The Company shall purchase and
maintain directors and officers liability insurance coverage
covering the Company’s officers and directors, including the
Executive, as of the Effective Date. The Company shall indemnify
the Executive to the extent permitted under the bylaws of the
Company and applicable laws.
(d)
Until such time as Executive
becomes covered by Company medical coverage, the Company shall pay
the cost of COBRA coverage provided by Executive’s prior
employer, to the same extent as such coverage was paid for by such
prior employer.
(e)
Increase in Payments Upon a Change
of Control.
(i) Anything in
this Agreement to the contrary notwithstanding, in the event that
it shall be determined that any payment or distribution by the
Company to or for the benefit of Executive, whether paid or payable
or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a “Payment”), would constitute
an “excess parachute payment” within the meaning of
Section 280G of the Code, the Company shall grant to Executive an
additional number of shares of Company stock with a value equal to
one- half (1/2) of the excise tax imposed under Section 4999 of the
Code (the “Gross-Up Payment Shares”), and one-half
(1/2) of any federal, state and local income tax, employment tax
and excise tax imposed upon award of the Gross-Up Payment Shares.
For purposes of determining the amount of tax on such Shares,
unless Executive specifies that other rates apply, Executive shall
be deemed to pay federal income tax and employment taxes at the
highest marginal rate of federal income and employment taxation in
the calendar year in which the Shares are to be granted and state
and local income taxes at the highest marginal rate of taxation in
the state and locality of Executive’s residence on
Executive’s termination date, net of the maximum reduction in
federal income taxes that may be obtained from the deduction of
such state and local taxes. The Gross-Up Payment Shares shall be
granted to Executive on the effective date of an applicable Change
of Control.
(ii) All
determinations to be made under this Section 9(e) shall be made by
the Company’s independent public accountant immediately prior
to the Change of Control or by another independent public
accounting firm mutually selected by the Company and Executive
before the date of the Change of Control (the “Accounting
Firm”), which firm shall provide its determinations and any
supporting calculations both to the Company and Executive within 20
days after Executive’s termination date. Any such
determination by the Accounting Firm shall be binding upon the
Company and Executive. Within 10 days after the Accounting
Firm’s determination, the Company shall pay the Gross-Up
Payment to Executive.
(iii) All of
the fees and expenses of the Accounting Firm in performing the
determinations referred to in this Section 9(e) shall be borne
solely by the Company.
10. 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, earned but unpaid commissions, unpaid pro rata
annual bonus and unused vacation days accrued through the date of
death, vested but unexercised Awards and any Contingent
Commencement Bonus at the time(s) earned; provided , that
nothing contained in this paragraph shall be deemed to excuse any
breach by the Company of any provision of this Agreement. 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 the essential functions of his positions
hereunder 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, any earned but unpaid commissions, unpaid
pro rata annual bonus and unused vacation days accrued
through the Executive’s last date of Employment with the
Company, vested but unexercised Awards and any Contingent
Commencement Bonus at the time(s) earned; provided , that
nothing contained in this paragraph shall be deemed to excuse any
breach by the Company of any provision of this Agreement. 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 the essential functions of his
positions hereunder for a period of not less than an aggregate of
four and one-half months during any twelve consecutive months, and
“Disability” shall not exist unless and until the
Company engages the Executive in the interactive process provided
for under the Americans with Disabilities Act and relevant state
and/or local law.
(i) At any time during the term of this Agreement,
the Company, by vote of the Board of Directors, 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 Section 11 of this Agreement or the Non-Competition
and Non-Solicitation Agreement referenced in Section 12 of this
Agreement; (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 ___________________ (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 of material
failure on the part of the Executive and the failure to remedy such
performance to the Board’s satisfaction within 30 days after
delivery of a reasonably detailed written notice to the Executive
of the factual basis for such finding); provided Cause shall not
exist unless and until the Company provides the Executive with
reasonably detailed written notice explaining the factual basis for
its intended termination of the Executive’s employment for
Cause, an opportunity to cure any curable conduct or circumstance,
as determined by the Board in its sole discretion, within ten (10)
days after the aforementioned written notice (with respect to (A),
(D) or (E) above), an opportunity to be heard on the matter at a
duly-scheduled meeting of the Board of Directors thereafter, which
is followed by a vote of the Board of Directors to terminate the
Executive’s employment for Cause.
(ii)
Upon the Company’s
termination of this Agreement or the Executive’s employment
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, any earned but unpaid commissions, unpaid
pro rata annual bonus and unused vacation days accrued
through the Executive’s last day of employment with the
Company. 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 indirect sale or exchange in a
single or series of related transactions by the stockholders of the
Company of more than 50% of the voting stock of the
Company.
(i) At any time during the term of this Agreement,
subject to the conditions set forth in Section 10(e)(ii) below, the
Executive may terminate this Agreement and the Executive’s
employment with the Company for “Good Reason.” For
purposes of this Agreement, “ Good Reason ”
shall mean the occurrence of any of the following events: (A) the
assignment, without the Executive’s consent, to the Executive
of duties that are significantly different from or that reflect a
substantial diminution of
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