Unassociated Document


    INFINIUM
      LABS OPERATING CORPORATION

    EMPLOYMENT
      AGREEMENT

    


    THIS
      EMPLOYMENT AGREEMENT
      (the
“Agreement”),
      made
      as of January 11, 2006, (“Effective
      Date”),
      between Infinium Labs Operating Corporation (“ILOC”)
      on
      behalf of itself and its parent entity Infinium Labs, Inc. (“IFLB”),
      each a
      Delaware corporation (collectively the “Company”),
      and
      the undersigned named executive (“Executive”).
      

    


    BACKGROUND

    


    The
      Company is currently engaged in the business of: (a) developing and building
      a
      platform to play electronic video games; (b) operating an online game service
      to
      provide on-demand access to multi-player games and interactive entertainment;
      and (c) providing products, entertainment, advertising and services in the
      gaming console market, game rental or games on-demand, and the Internet gaming
      online business (collectively the “Business”).

    


    Company
      desires to obtain the services of Executive or continue the services of
      Executive, and Executive desires to be employed by Company or continue to be
      employed by Company, upon the terms and conditions hereinafter set forth. As
      an
      ancillary and integral part of this Agreement, Company desires to obtain
      Executive’s
      covenant not to compete and other covenants, and Executive desires to make
      a
      covenant not to compete and such other covenants as hereinafter set forth.
      The
      Executive is or will be employed by the Company in a confidential relationship
      wherein the Executive, in the course of Executive’s
      employment with the Company, has and will continue to become familiar with
      and
      be aware of information as to the Company and its subsidiaries and affiliates
      (collectively the “Infinium
      Companies”)
      and
      their respective customers, the specific manner of doing business, including
      the
      processes, techniques and trade secrets utilized by the Infinium Companies,
      and
      future plans with respect thereto, all of which has been and will be established
      and maintained at great expense to the Company, which information is a trade
      secret and constitutes valuable good will of the Company.

    


    NOW,
      THEREFORE,
      in
      consideration of the covenants herein contained, and other good and valuable
      consideration, the receipt and adequacy of which are hereby forever
      acknowledged, the parties, with the intent of being legally bound hereby, agree
      as follows:

     

    
      
        
        

      

      
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    1. Position
      and Responsibilities; Location.


    1.1 Position.
      Executive is employed by the Company to render services to the Company in the
      position of President, Chief Executive Officer, and Interim Chief Financial
      Officer, and as a director on IFLB’s
      Board
      of Directors (subject to IFLB by-laws) and shall perform such duties and
      responsibilities as are normally related to such position in accordance with
      the
      standards of the industry and any additional duties now or hereafter assigned
      to
      Executive by the Company. Executive shall abide by the rules, regulations and
      practices as adopted or modified, from time to time, in the Company’s
      sole
      discretion; and Executive shall use Executive’s
      best
      efforts to promote the interests of Company. 

    


    1.2 Other
      Activities.
      Executive shall not, during the term of this Agreement: (a) accept any other
      employment, or (b) engage, directly or indirectly, in any other business
      activity (whether or not pursued for pecuniary advantage) that might interfere
      with Executive’s
      duties
      and responsibilities hereunder or create a conflict of interest with the
      Company. The foregoing limitations shall not be construed as prohibiting
      Executive from making personal investments in such form or manner as will
      neither require Executive’s
      services in the operation or affairs of the companies or enterprises in which
      such investments are made nor violate the terms of Section 5
      hereof.

    


    1.3 No
      Conflict.
      Executive represents and warrants that Executive’s
      execution of this Agreement, Executive’s
      employment with the Company, and the performance of Executive’s
      proposed duties under this Agreement shall not violate any obligations Executive
      may have to any other employer, person or entity, including any obligations
      with
      respect to proprietary or confidential information of any other person or
      entity. Further, Executive shall indemnify the Company for any claim, including,
      but not limited to, reasonable attorneys’
      fees and
      expenses of investigation, by any such third party that such third party may
      now
      have or may hereafter come to have against the Company, based upon or arising
      out of any non-competition agreement, invention or secrecy agreement between
      Executive and such third party which was in existence as of the date of this
      Agreement.

    


    1.4 Location
      for the Performance of Services.
      Executive is a Citizen of the United States currently residing in the Grand
      Duchy of Luxembourg. Executive’s
      duties
      are almost entirely based in the United States and the Company expects Executive
      to spend considerable time in the United States. Notwithstanding the foregoing,
      Company permits Executive to tele-commute to the extent practicable for the
      position, from a remote location. 

     

    
      
        
        

      

      
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    2. Compensation
      and Benefits.


    


    2.1 Base
      Salary.
      In
      consideration of the services to be rendered under this Agreement, the Company
      shall pay Executive an initial salary equivalent to two hundred fifty thousand
      Dollars ($250,000.00) per year (“Base
      Salary”),
      payable at a rate of Twenty Thousand Eight Hundred Thirty-Three Dollars
      ($20,833.00) per month (less applicable deductions and withholding) beginning
      as
      of the Effective Date. In addition, Executive shall be entitled to receive
      the
      pro-rata amount of Base Salary due from November 18, 2005 through the Effective
      Date as the sole remuneration for Executive’s
      role as
      Chief Executive Officer and Interim Chief Financial Officer. Executive shall
      be
      owed no further compensation than is contained within this Agreement. The Base
      Salary shall be paid in accordance with the Company’s
      regularly established payroll practice and, at the Company’s
      sole
      option, shall be paid in cash or in stock pursuant to the Company’s
      then-current Form S-8 stock compensation plan. Executive’s
      Base
      Salary may be reviewed, from time to time, in accordance with the established
      procedures of the Company for adjusting salaries for similarly situated
      employees and may be adjusted, in the sole discretion of the Board of Directors
      of this Company (the “Board”).
      

     

    2.2 Bonus
      Structure. Bonuses
      shall be available to Executive pursuant to a commission plan for the positions
      to be drafted by the Board of Directors. Each quarter, Executive’s
      target
      bonus under the commission plan will be up to thirty-five percent (35%) of
      Base
      Salary (“Target
      Bonus”).
      Executive’s
      Target
      Bonus, if any, shall be determined and paid pursuant to Executive’s
      commission plan. Determination and payment will occur within thirty (30) days
      after the end of each of the Company’s
      fiscal
      quarters. The parties have initially agreed that the Target Bonus shall be
      comprised of a revenue target component, which will provide up to fifteen
      percent (15%) of the Target Bonus and other Management by Objective components
      that make up the remaining twenty percent (20%). The parties shall use their
      best efforts to determine the actual milestones required for the Target Bonus
      within thirty (30) days of the Effective Date. 

    


    2.3 Health
      Care Benefits.
      So long
      as Executive meets the applicable eligibility requirements, Executive shall
      be
      eligible to participate in the benefits made generally available by the Company
      to similarly-situated employees, in accordance with the benefit plans
      established by the Company, from time to time, and as may be amended, from
      time
      to time, in the Company’s
      sole
      discretion. Company reserves the right to terminate any benefit plan for any
      reason or no reason. Such benefit plans, if adopted, may include coverage for
      health, hospitalization, dental, eye care, life and other insurance plans
      acceptable to the Company from time to time (collectively the “Health
      Plans”).

     

    
      
        
        

      

      
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    2.4 Paid
      Time Off/Holidays.
      The
      Executive shall be entitled to receive paid time off as may be afforded officers
      and key employees generally under the Company’s
      policies in effect from time to time (pro-rated for any year in which the
      Executive is employed for less than a full year). The Executive shall also
      be
      entitled to paid holidays made generally available by the Company to
      similarly-situated employees, in accordance with the benefit plans established
      by the Company, from time to time, and as may be amended, from time to time,
      in
      the Company’s
      sole
      discretion.

    


    2.5  Business
      Expenses; Corporate Credit Card.
      Throughout the term of Executive’s
      employment hereunder, Company shall reimburse Executive for all reasonable
      and
      necessary travel and other business expenses which may be incurred in direct
      connection with the performance of Executive’s
      duties
      in accordance with policies adopted, from time to time, by Company concerning
      expense reimbursement for employees. Executive shall not incur monthly expenses
      in excess of ten thousand dollars ($10,000) without written confirmation from
      the Board. 

    


    Such
      expenses as are authorized for payment or reimbursement shall be paid for by
      Company or reimbursed to Executive upon presentation to Company of an itemized
      expense statement with respect thereto and such other documentation as may
      be
      required by the Company’s
      reimbursement policies from time to time.

    


    Executive
      may have use of a corporate credit card under Company’s
      travel
      and expense policy at such time as the Company can establish a credit card
      with
      itself as the responsible party. 

    


    2.6 Restricted
      Stock Grant.
      Executive shall execute and deliver to Company, as a condition to the
      effectiveness of this Agreement, the Stockholder Vesting Agreement (“SVA”)
      annexed
      hereto as Exhibit 1 and made a part hereof. 

     

    
      
        
        

      

      
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    Executive
      shall receive 5,000,000 shares of the Company’s
      common
      stock, restricted and vesting over a period of two years at par value if
      Executive files an election under Section 83(b) of the Internal Revenue Code
      of
      1986, as amended or, if such election is not made, at the market closing price
      in effect on the Effective Date (“Total
      Shares’).
      From
      the Total Shares, 1,000,000 shares will be fully vested upon execution of the
      Agreement and the Stock Vesting Agreement (“SVA”).
      The
      remaining 4,000,000 shares of common stock shall vest quarterly over two years,
      1/8 per quarter, to the extent Executive is employed with the Company at the
      vesting date. For example, based on the vesting schedule, on or about May 18,
      2006, Executive would vest 1,000,000 shares of the Company’s
      common
      stock. The Total Shares under the SVA and any other shares issued will be
      restricted, with appropriate legends and subject to Rule 144 under the
      Securities Act of 1933. As of the Effective Date, the Company does not have
      sufficient shares to reserve or issue 4,000,000 of the 5,000,000 shares and
      the
      Company can not give any assurances that it will receive IFLB shareholder
      approval to increase its authorized common stock. Executive shall have no claim
      to the 4,000,000 shares, regardless of the vesting schedule, in the event the
      Company does not receive shareholder approval to increase its authorized common
      stock. Executive and Company shall enter into a separate Stockholder Vesting
      Agreement in order to accomplish this objective. 

    


    3. Term.
      Executive agrees that this employment is “at
      will”
      which
      means that it can be terminated at any time by the Company, with or without
      cause and with or without notice. Executive agrees that any promise or
      obligation that employment be on any other basis than “at
      will”
      is
      invalid unless in writing signed on behalf of the Company.

    


    4. Severance. 

    


    4.1 The
      Company agrees that should it exercise its right to terminate your employment
      without “Cause”
      (defined
      below), then:

    


    (a) the
      Company shall pay you severance, consisting of (i) the amount equal to four
      (4)
      months of Base Salary at the rate in effect on the date of termination. Such
      severance payment shall be subject to all applicable US income tax deductions
      and withholding. 

    


    (b) the
      Company shall pay Executive the severance payment in cash within thirty (30)
      days of the effective date of a separation agreement executed by Executive
      and
      delivered to the Company (as more specifically described in subsection (c)).
      Executive shall not be required to mitigate the amount of any severance, nor
      shall any such payment be reduced by any earnings or benefits that you may
      receive from any other source. 

     

    
      
        
        

      

      
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    (c) as
      a
      condition to the receipt of the severance payment, Executive shall be required
      to execute a full and complete waiver and release of all claims occurring on
      or
      prior to the execution of such agreement (as described herein), against the
      Company, its owners, directors, officers, agents and employees, in a form to
      be
      provided by the Company (“Waiver
      and Release”).
      The
      Company shall execute the Waiver and Release in the ordinary course of its
      business, but in no event longer than provided in such Waiver and Release.
      Such
      release shall exclude claims for indemnification from the Company under its
      certificate of incorporation, by-laws, applicable law and claims for directors
      and officers’
      insurance and employee practices liability insurance (if any). The Waiver and
      Release shall further exclude any claim against the owners, directors, officers,
      agents and employees that is independent from (a) their role and relationship
      with the Company, (b) Executive’s
      employment with the Company (including the termination thereof), and (c) any
      other relationship with or action by the Company.

    


    
      	4.2  	
              For
                the purposes of this Section 4, “Cause”
                shall mean any of the following:

            


    

    


    
      	(a)  	
              Gross
                negligence or willful misconduct;

            


    

    


    
      	(b)  	
              Commission
                or conviction of a felony or crime involving dishonesty or moral
                turpitude;

            


    

    


    
      	(c)  	
              Violation
                of a statutory of common law duty of loyalty to the Company, its
                shareholders; 

            


    

    


    
      	(d)  	
              Executive’s
                dishonesty, fraud or misconduct with respect to the business or affairs
                of
                the Company which materially or adversely affects the operations
                or
                reputations of the Company;

            


    

    


    
      	(e)  	
              Issuance
                by the Securities and Exchange Commission (“SEC”)
                of a Wells notice against the Executive;


            


    

    


    
      	(f)  	
              Breach
                of Confidential Information, Inventions, Nonsolicitation and
                Noncompetition Agreement between Executive and the Company;
                and

            


    

     

    
      
        
        

      

      
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      	(g)  	
              Failure
                by the Company to receive an SB-2 Registration Statement, covering
                its
                common stock, declared effective by the SEC, except that the foregoing
                shall be waived and will not be considered Cause on the one-hundred
                and
                twenty-first (121) day after the Effective
                Date.

            


    

    


    4.3 In
      the
      event Executive’s
      employment is terminated (a) for Cause or any other reason not specified herein
      Executive will be entitled to any accrued and unpaid Base Salary and earned,
      unused paid time-off through the date of termination or (b) without Cause,
      Executive will be entitled to the aforementioned Base Salary and earned, unused
      paid time-off plus severance as provided herein. Except as provided in (a)
      and
      (b) above or the extent required by applicable law, Executive shall be entitled
      to no other compensation or benefits from the Company.


    


    5. Confidential
      Information, Inventions, Nonsolicitation and Noncompetition
      Agreement.

    


    a. Executive
      shall sign and be bound by the terms of the Company’s
      Confidential Information, Inventions, Nonsolicitation and Noncompetition
      Agreement with the Company, in the form attached as Exhibit 2 (“CIIN
      Agreement”).
      The
      CIIN Agreement is attached hereto and fully incorporated herein as Exhibit
      2.
      Executive agrees that the covenants in the CIIN Agreement impose a reasonable
      restraint on the Executive in light of the current and changing business
      activities throughout the term of these covenants, whether before or after
      the
      date of termination of the employment of the Executive. 

    


    b. Severability.
      The
      covenants in this Section 5 are severable and separate, and the unenforceability
      of any specific covenant shall not affect the provisions of any other covenant.
      Moreover, in the event any court of competent jurisdiction shall determine
      that
      the scope, time or territorial restrictions of any specific covenant as set
      forth are unreasonable, then it is the intention of the parties that such
      restrictions be enforced to the fullest extent which the court deems reasonable,
      and the Agreement shall thereby be reformed.

    


    c. Independent
      Provisions.
      The
      covenants in the NIIN Agreement shall be construed as an agreement independent
      of any other provision in this Agreement, and the existence of any claim or
      cause of action of the Executive against the Company, whether predicated on
      this
      Agreement or otherwise, shall not constitute a defense to the enforcement by
      the
      Company of any of such covenants. It is specifically agreed that the period
      of
      two (2) years following termination of employment stated at the beginning of
      this Section 5, during which the agreements and covenants of the Executive
      made
      in this Section 5 shall be effective, shall be computed by excluding from such
      computation any time during which the Executive is in violation of any provision
      of this Section 5.

     

    
      
        
        

      

      
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    6.
      Indemnification.
      Executive shall be availed of the Indemnification provisions of the
      Company’s
      By-Laws. 

    


    7.
      Directors and Officers Insurance Policy.
      The
      Company shall use its best efforts to secure a directors and officers insurance
      policy upon cash financing of at least $1,000,000. 

    


    8. Assignment;
      Binding Effect.
      The
      Executive understands that Executive has been selected for employment by the
      Company on the basis of Executive’s
      personal qualifications, experience and skills. The Executive shall not assign
      all or any portion of Executive’s
      performance under this Agreement. Subject to the preceding two (2) sentences,
      this Agreement shall be binding upon, inure to the benefit of and be enforceable
      by the parties hereto and their respective heirs, legal representatives,
      successors and assigns.

    


    9. Termination
      Obligations.
      Following any termination of employment, Executive shall cooperate with the
      Company in the winding up of pending work on behalf of the Company and the
      orderly transfer of work to other employees. Executive shall also cooperate
      with
      the Company in the defense of any action brought by any third party against
      the
      Company that relates to Executive’s
      employment by the Company.

    


    10. Arbitration.

    


    10.1 Arbitrable
      Claims.
      To the
      fullest extent permitted by law, all disputes between Executive (and
      Executive’s
      attorneys, successors and assigns) and Company (and its affiliates,
      shareholders, directors, officers, employees, agents, successors, attorneys
      and
      assigns) of any kind whatsoever, including, without limitation, all disputes
      arising under this Agreement (“Arbitrable
      Claims”),
      shall
      be resolved by arbitration. All persons and entities specified in the preceding
      sentence (other than Company and Executive) shall be considered third party
      beneficiaries of the rights and obligations created by this Section on
      Arbitration. Arbitrable Claims shall include, but are not limited to, contract
      (express or implied) and tort claims of all kinds, as well as all claims based
      on any federal, state or local law, statute or regulation, excepting only claims
      under applicable workers’
      compensation law and unemployment insurance claims. By way of example and not
      in
      limitation of the foregoing, Arbitrable Claims shall include any claims arising
      under Title VII of the Civil Rights Act of 1964, the Age Discrimination in
      Employment Act, the Americans with Disabilities Act and any other applicable
      statutory law or regulation dealing with employment.

     

    
      
        
        

      

      
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    10.2 Procedure.
      Arbitration of Arbitrable Claims shall be in accordance with the National Rules
      for the Resolution of Employment Disputes of the American Arbitration
      Association, as amended (“AAA
      Employment Rules”),
      as
      augmented in this Agreement. Arbitration shall be initiated as provided by
      the
      AAA Employment Rules, although the written notice to the other party initiating
      arbitration shall also include a statement of the claim(s) asserted and the
      facts upon which the claim(s) are based. Arbitration shall be final and binding
      upon the parties and shall be the exclusive remedy for all Arbitrable Claims.
      Either party may bring an action in court to compel arbitration under this
      Agreement and to enforce an arbitration award. Otherwise, neither party shall
      initiate or prosecute any lawsuit or administrative action in any way related
      to
      any Arbitrable Claim. Notwithstanding the foregoing, either party may, at its
      option, seek injunctive relief in connection with Arbitrable Claims under
      applicable law. All arbitration hearings under this Agreement shall be conducted
      in King County, Washington. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE
      TO
      TRIAL BY JURY WITH REGARD TO ARBITRABLE CLAIMS, INCLUDING, WITHOUT LIMITATION,
      ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE, VALIDITY OR
      ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE.

     

    10.3 Arbitrator
      Selection and Authority.
      All
      disputes involving Arbitrable Claims shall be decided by a single arbitrator.
      The arbitrator shall be selected by mutual agreement of the parties within
      thirty (30) days of the effective date of the notice initiating the arbitration.
      If the parties cannot agree on an arbitrator, then the complaining party shall
      notify the AAA and request selection of an arbitrator in accordance with the
      AAA
      Employment Rules. The arbitrator shall have authority to award equitable relief,
      damages, costs and fees to the same extent that, but not greater than, a court
      would have. The fees of the arbitrator shall be split between both parties
      equally, unless this would render this Section of Arbitration unenforceable,
      in
      which case the arbitrator shall apportion said fees so as to preserve
      enforceability. The arbitrator shall have exclusive authority to resolve all
      Arbitrable Claims, including, but not limited to, whether any particular claim
      is arbitrable and whether all or any part of this Agreement is void or
      unenforceable.

     

    
      
        
        

      

      
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    10.4 Continuing
      Obligations.
      The
      rights and obligations of Executive and Company set forth in this Section on
      Arbitration shall survive the termination of Executive’s
      employment and the expiration of this Agreement.

    


    11. Additional
      Provisions.

    


    11.1 Amendments;
      Waivers; Remedies.
      This
      Agreement may not be amended or waived except by a writing signed by Executive
      and by a duly authorized representative of the Company. Failure to exercise
      any
      right under this Agreement shall not constitute a waiver of such right. Any
      waiver of any breach of this Agreement shall not operate as a waiver of any
      subsequent breaches. All rights or remedies specified for a party herein shall
      be cumulative and in addition to all other rights and remedies of the party
      hereunder or under applicable law.

    


    11.2 Assignment.
      The
      performance of Executive is personal hereunder, and Executive agrees that
      Executive shall have no right to assign and shall not assign or purport to
      assign any rights or obligations under this Agreement. This Agreement may be
      assigned or transferred by the Company, and nothing in this Agreement shall
      prevent the consolidation, merger or sale of the Company or a sale of any or
      all
      or substantially all of its assets.

    


    11.3 Binding
      Effect.
      Subject
      to the foregoing restriction on assignment by Executive, this Agreement shall
      inure to the benefit of and be binding upon each of the parties; the affiliates,
      officers, directors, agents, successors and assigns of the Company; and the
      heirs, devisees, spouses, legal representatives and successors of
      Executive.

     

    11.4 Notices.
      Any
      notice under this Agreement must be in writing and addressed to the Company
      or
      to Executive at the corresponding address below. Notices under this Agreement
      shall be effective upon: (a) hand delivery, when personally delivered; (b)
      written verification of receipt, when delivered by overnight courier or
      certified or registered mail; or (c) acknowledgment of receipt of electronic
      transmission, when delivered via electronic mail or facsimile. Executive shall
      be obligated to notify the Company, in writing, of any change in
      Executive’s
      address. Notice of change of address shall be effective only when done in
      accordance with this Section 11.4.

     

    
      
        
        

      

      
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      	 	Company’s
              Notice Address: 	 	Infinium
              Labs Corporation 
	 	 	 	1191 Second Avenue, 5th
              Floor
	 	 	 	Seattle, WA 98101
	 	 	 	Attn.: General Counsel
	 	 	 	Telephone: (206) 393-3026
	 	 	 	Facsimile: (206) 774-1289
	 	 	 	E-mail:
              legal@phantom.net
	 	 	 	 
	 	Executive’s
              Notice Address: 	 	Greg Koler
	 	 	 	9, rue de Reichlange, L-8508
              Redange-sur-Attert Grand-Duchy of Luxembourg
	 	 	 	Telephone: 011.352.061.42.67.65
	 	 	 	Facsimile:
              011.352.22.99.99.54.99
	 	 	 	E-mail:
              gregory@pt.lu


    

     

    11.5 Severability.
      If any
      provision of this Agreement shall be held by a court or arbitrator to be
      invalid, unenforceable or void, such provision shall be enforced to the fullest
      extent permitted by law, and the remainder of this Agreement shall remain in
      full force and effect. In the event that the time period or scope of any
      provision is declared by a court or arbitrator of competent jurisdiction to
      exceed the maximum time period or scope that such court or arbitrator deems
      enforceable, then such court or arbitrator shall reduce the time period or
      scope
      to the maximum time period or scope permitted by law.

    


    11.6 Taxes.
      All
      amounts paid under this Agreement (including, without limitation, Base Salary)
      shall be reduced by all applicable state and federal tax withholdings and any
      other withholdings required by any applicable jurisdiction.

    


    11.7 Dollars.
      All
      references to dollars and associates payments as well as calculations related
      to
      the IFLB common stock shall be in U.S. dollars.

    


    11.8 Governing
      Law.
      The
      validity, interpretation, enforceability and performance of this Agreement
      shall
      be governed by and construed in accordance with the laws of the State of
      Washington, without regard to conflict of laws principles.

     

    
      
        
        

      

      
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    11.9 Interpretation.
      This
      Agreement shall be construed as a whole, according to its fair meaning, and
      not
      in favor of or against any party. Sections and section headings contained in
      this Agreement are for reference purposes only, and shall not affect, in any
      manner, the meaning or interpretation of this Agreement. Whenever the context
      requires, references to the singular shall include the plural and the plural
      the
      singular.

    


    11.10 Survival.
      All of
      those portions of this Agreement that require performance by Executive following
      termination of Executive’s
      employment hereunder shall survive any termination of this
      Agreement.


    11.11 Counterparts.
      This
      Agreement may be executed in several counterparts (including by means of
      telecopied signature pages), each of which shall be deemed an original but
      all
      of which shall constitute one and the same instrument.

    


    11.12 Authority.
      Each
      party represents and warrants that such party has the right, power and authority
      to enter into and execute this Agreement and to perform and discharge all of
      the
      obligations hereunder, and that this Agreement constitutes the valid and legally
      binding agreement and obligation of such party and is enforceable in accordance
      with its terms.

    


    11.13 Additional
      Assurances.
      The
      provisions of this Agreement shall be self-operative and shall not require
      further agreement by the parties except as may be herein specifically provided
      to the contrary; provided, however, at the request of Company, Executive shall
      execute such additional instruments and take such additional acts as Company
      may
      deem necessary to effectuate this Agreement.

    


    11.14 Entire
      Agreement.
      This
      Agreement (including the Exhibits attached hereto, which are incorporated herein
      by reference) is the final, complete and exclusive agreement of the parties
      with
      respect to the subject matter hereof and supersedes and merges all prior or
      contemporaneous representations, discussions, proposals, negotiations,
      conditions, communications and agreements, whether written or oral, between
      the
      parties relating to the subject matter hereof and all past courses of dealing
      or
      industry custom. No oral statements or prior written material not specifically
      incorporated herein shall be of any force and effect, and no changes in or
      additions to this Agreement shall be recognized unless incorporated herein
      by
      amendment, as provided herein (such amendment to become effective on the date
      stipulated therein).


    
      
        
          


           

          


        

        
        

      

      
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    IN
      WITNESS WHEREOF,
      the
      parties have executed this Agreement as of the date first above
      written.

    


    COMPANY:

    


    Infinium
      Labs Operating Corporation on behalf of itself and its parent entity Infinium
      Labs, Inc. 

    


    


    By:/s/
      Richard Angelotti

    Richard
      Angelotti

    Chairman
      of Compensation Committee

    


    


    EXECUTIVE:

    


    


    By:/s/
      Greg Koler

    Greg
      Koler

     

     

    
      
        
        

      

      
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