Unassociated Document


    EXHIBIT
      10.5

     

    EMPLOYMENT
      AGREEMENT

    


    THIS
      EMPLOYMENT AGREEMENT (this “Agreement”)
      is
      made, entered into and effective as of October 27, 2006 (the “Effective
      Date”),
      between GoFish Corporation (the “Company”),
      and
      Michael Downing, 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 positions of President and
      Chief Executive Officer; 

    


    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 fourth
      anniversary of the Effective Date (the “Scheduled
      Termination Date”),
      unless terminated in accordance with the provisions of Section 12 below, in
      which case the provisions of Section 12 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 90 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
      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
      positions of President and Chief Executive Officer, unless and until otherwise
      instructed by the Company. 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 the Company’s
      office located in San Francisco, California and any other locus where the
      Company now or hereafter has a business facility. 

    


    6. Compensation.
      

    


    (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
      bi-weekly payments of the annual salary of $175,000.00, less all applicable
      taxes and other appropriate deductions. 

    


    The
      Compensation Committee (the “Compensation Committee”) of the Company’s 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, which decision shall be within the Board’s sole
      discretion.

    


    (b) Bonus.
      During
      the term of this Agreement, the Executive shall be entitled to receive a bonus,
      which may be paid annually or semi-annually at the discretion of the
      Compensation Committee (or by the independent members of the Board if there
      exists no Compensation Committee), the aggregate of which bonus shall not exceed
      40% of his base salary, and the actual amount of which bonus shall be determined
      according to achievement of performance-related financial and operating targets
      established annually for the Company and the Executive by the Compensation
      Committee (or by the independent members of the Board if there exists no
      Compensation Committee). As of the Effective Date, and unless modified by the
      Compensation Committee (or by the independent members of the Board if there
      exists no Compensation Committee), the Executive shall be entitled to receive
      a
      semi-annual bonus. The performance targets described above for each fiscal
      year
      shall be adopted by the Compensation Committee promptly after the end of the
      prior fiscal year, but in no event later than March 31st
      of the
      current fiscal year (except for fiscal year 2006, the performance targets for
      which are annexed to this Agreement as Exhibit A). Each bonus, or in the case
      of
      a semi-annual bonus, one installment of the semi-annual bonus, shall be paid
      by
      the Company to the Executive promptly after the first meeting of the Board
      following the completion of the annual audit, which meeting shall occur on
      or
      about April 15th of each year. 

    


    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 of
      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.


     

    
      
        
        

      

      
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    8. 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.

    


    9. Lock-Up
      Agreement.
      The
      Executive shall enter into a Lock-Up Agreement with the Company in the form
      attached hereto as Exhibit B.

    


    10. Stock
      Options.
      The
      Company hereby agrees that the Executive
      shall be granted a non-qualified stock option on the terms and conditions
      hereinafter stated:

    


    (a) Grant
      of Options.
      On the
Effective
      Date,
      the
      Company will grant
      the
      Executive an option to purchase an aggregate of 500,000 shares of the
      Company’s common voting stock (the “Option”)
      under
      the Company’s 2006 Stock Option Plan (the “Stock
      Option Plan”).
      Such
      grant shall be evidenced by an Option Agreement as contemplated by the Stock
      Option Plan. In subsequent years 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. The Executive agrees that he is receiving substantial consideration,
      including a share in the goodwill of the Company, as a result of the Grant
      of
      Options and Vesting provisions herein.

    


    (b) Option
      Price; Term.
      The
      per
      share
      exercise price of the Option shall be $1.50, 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) Vesting
      and Exercise.
      One-third (1/3) of the Option shall be vested and exercisable on the first
      anniversary of the grant of the Option. Thereafter, an additional one-thirty
      sixth (1/36) of the Option shall be vested and become exercisable on the last
      day of each month, subject to the provisions of Section 10(d)
      below.

    


    (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.

     

    
      
        
        

      

      
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    (iv) If
      the
      Executive’s employment is terminated (A) in connection with a Change of Control
      (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.

    


    (e) Payment.
      The
      full consideration for any shares purchased by the Executive upon exercise
      of
      the Option shall be paid in cash. 

     

    11. Other
      Benefits.
      

    


    (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) The
      Company shall purchase and maintain traditional directors and officers liability
      insurance coverage in the amount of at least $5,000,000 covering the Company’s
      officers and directors, including the Executive, as of the Effective
      Date.

    


    (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.

    


    12. 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 Executor’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 vested
      but
      unexercised Awards; 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.

     

    
      
        
        

      

      
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    (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 vested but unexercised Awards; provided,
      that
      nothing contained in this paragraph shall be deemed to excuse any breach by
      the
      Company of any provision of this Agreement including any failure to maintain
      the
      long-term disability insurance coverage required pursuant to Section 10(b)(iv).
      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. 

    


    (c) “Cause.”
      

    


    (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 13 and 14
      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 titles of President and Chief Executive 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).

    


    (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. The Company shall deduct, from all payments made
      hereunder, all applicable taxes, including income tax, FICA and FUTA, and other
      appropriate deductions.

     

    
      
        
        

      

      
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    (d) Change
      of Control.
      For
      purposes of this Agreement, “Change
      of Control”
means
      the occurrence of, or the Company’s Board votes 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.

    


    (e) “Good
      Reason.”

     

    (i) At
      any
      time during the term of this Agreement, subject to the conditions set forth
      in
      Section 12(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, and that result in a substantial diminution of,
      the duties that he assumed on the Effective Date; (B) the
      assignment, without the Executive’s consent, to the Executive of a title that is
      different from and subordinate to the title specified in Section 2 above,
      provided, however, that the retention of another executive as President or
      Chief
      Executive Officer shall not, in and of itself, entitle the Executive to claim
      a
      termination for Good reason hereunder; (C) any termination of the Executive’s
      employment by the Company, other than a termination for Cause, within
      12
      months after a Change of Control;
      (D) the
      assignment, without the Executive’s consent, to the Executive of duties that are
      significantly different from, and that result in a substantial diminution of,
      the duties that he assumed on the Effective Date within 12 months after a Change
      of Control; or (E) material
      breach by the Company of this Agreement. 

    


    (ii) The
      Executive shall not be entitled to terminate his employment with the Company
      and
      this Agreement for Good Reason unless and until he shall have delivered written
      notice to the Company of his intention to terminate this Agreement and his
      employment with the Company for Good Reason, which notice specifies in
      reasonable detail the circumstances claimed to provide the basis for such
      termination for Good Reason, and the Company shall not have eliminated the
      circumstances constituting Good Reason within 30 days of its receipt from the
      Executive of such written notice. 

    


    (iii) In
      the
      event that the Executive terminates this Agreement and his employment with
      the
      Company for Good Reason, the Company shall pay or provide to the Executive
      (or,
      following his death, to the Executive’s heirs, administrators or executors):
      (A)
      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; (B) the
      Executive’s full base salary through the Scheduled Termination Date (as the same
      may have been extended through any extensions of this Agreement); (C)
the
      value
      of vacation days that the Executive would have accrued through the Scheduled
      Termination Date; (D) continued
      coverage, at the Company’s expense, under all Benefits Plans in which the
      Executive was a participant immediately prior to his last date of employment
      with the Company, or, in the event that any such Benefit Plans do not permit
      coverage of the Executive following his last date of employment with the
      Company, under benefit plans that provide no less coverage than such Benefit
      Plans, through the Scheduled Termination Date;
      and (E)
      severance in an amount equal to one year’s base salary, as in effect immediately
      prior to the Executive’s termination hereunder. All payments due hereunder shall
      be made within 45 days after the date of termination of the Executive’s
      employment.
      The
      Company shall deduct, from all payments made hereunder, all applicable taxes,
      including income tax, FICA and FUTA, and other appropriate
      deductions.

     

    
      
        
        

      

      
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    (iv) The
      Executive shall have no duty to mitigate his damages, except that continued
      benefits required to be provided under Section 11(e)(iii)(D) shall be canceled
      or reduced to the extent of any comparable benefit coverage offered to the
      Executive during the period prior to the Scheduled Termination Date by a
      subsequent employer or other person or entity for which the Executive performs
      services, including but not limited to consulting services. 

    


    (f) Without
      “Cause.”

     

    (i) By
      The
      Executive.
      At any
      time during the term of this Agreement, the Executive shall be entitled to
      terminate this Agreement and the Executive’s employment with the Company without
      Cause by providing prior written notice of at least 90 days to the Company.
      Upon
      termination by the Executive of this Agreement and the Executive’s employment
      with the Company without 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, 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.

    


    (ii) By
      The
      Company.
      At any
      time during the term of this Agreement, the Company shall be entitled to
      terminate this Agreement and the Executive’s employment with the Company without
      Cause by providing prior written notice of at least 90 days to the Executive.
      Upon termination by the Company of this Agreement and the Executive’s employment
      with the Company without Cause, the Company shall pay or provide to the
      Executive (or, following his death, to the Executive’s heirs, administrators or
      executors): (A) 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; (B) the Executive’s full base salary through the
      Scheduled Termination Date (as the same may have been extended through any
      extensions of this Agreement); (C) the value of vacation days that the Executive
      would have accrued through the Scheduled Termination Date; and (D) continued
      coverage, at the Company’s expense, under all Benefits Plans in which the
      Executive was a participant immediately prior to his last date of employment
      with the Company, or, in the event that any such Benefit Plans do not permit
      coverage of the Executive following his last date of employment with the
      Company, under benefit plans that provide no less coverage than such Benefit
      Plans, through the Scheduled Termination Date, and for 12 months following
      the
      Termination Date; and (E) severance in an amount equal to one year’s base
      salary, as in effect immediately prior to the Executive’s termination hereunder.
      All payments due hereunder shall be made within 45 days after the date of
      termination of the Executive’s employment. The Company shall deduct, from all
      payments made hereunder, all applicable taxes, including income tax, FICA and
      FUTA, and other appropriate deductions. 

     

    
      
        
        

      

      
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    13. Confidential
      Information.
      

    


    (a) The
      Executive expressly acknowledges that, in the performance of his duties and
      responsibilities with the Company, he has been exposed since prior to the
      Effective Date, and will be exposed, to the trade secrets, business and/or
      financial secrets and confidential and proprietary information of the Company,
      its affiliates and/or its clients, business partners or customers (“Confidential
      Information”).
      The
      term “Confidential Information” includes information or material that has actual
      or potential commercial value to the Company, its affiliates and/or its clients,
      business partners or customers and is not generally known to and is not readily
      ascertainable by proper means to persons outside the Company, its affiliates
      and/or its clients or customers.

    


    (b) Except
      as
      authorized in writing by the Board, during the performance of the Executive’s
      duties and responsibilities for the Company and until such time as any such
      Confidential Information becomes generally known to and readily ascertainable
      by
      proper means to persons outside the Company, its affiliates and/or its clients,
      business partners or customers, the Executive agrees to keep strictly
      confidential and not use for his personal benefit or the benefit to any other
      person or entity (other than the Company) the Confidential Information.
“Confidential Information” includes the following, whether or not expressed in a
      document or medium, regardless of the form in which it is communicated, and
      whether or not marked “trade secret” or “confidential” or any similar legend:
      (i) lists
      of
      and/or information concerning customers, prospective customers, suppliers,
      employees, consultants, co-venturers and/or joint venture candidates of the
      Company, its affiliates or its clients or customers; (ii) information
      submitted by customers, prospective customers, suppliers, employees, consultants
      and/or co-venturers of the Company, its affiliates and/or its clients or
      customers; (iii) non-public
      information proprietary to the Company, its affiliates and/or its clients or
      customers, including, without limitation, cost information, profits, sales
      information, prices, accounting, unpublished financial information, business
      plans or proposals, expansion plans (for current and proposed facilities),
      markets and marketing methods, advertising and marketing strategies,
      administrative procedures and manuals, the terms and conditions of the Company’s
      contracts and trademarks and patents under consideration, distribution channels,
      franchises, investors, sponsors and advertisers; (iv) proprietary
      technical information concerning products and services of the Company, its
      affiliates and/or its clients, business partners or customers, including,
      without limitation, product data and specifications, diagrams, flow charts,
      know
      how, processes, designs, formulae, inventions and product development; (v)
      lists
      of
      and/or information concerning applicants, candidates or other prospects for
      employment, independent contractor or consultant positions at or with any actual
      or prospective customer or client of Company and/or its affiliates,
      any and
      all confidential processes, inventions or methods of conducting business of
      the
      Company, its affiliates and/or its clients, business partners or customers;
      (vi)
      acquisition or merger targets; (vii) business plans or strategies, data,
      records, financial information or other trade secrets concerning the actual
      or
      contemplated business, strategic alliances, policies or operations of the
      Company or its affiliates; or (viii) any
      and
      all versions of proprietary computer software (including source and object
      code), hardware, firmware, code, discs, tapes, data listings and documentation
      of the Company;
      or (ix)
      any other confidential information disclosed to the Executive by, or which
      the
      Executive obligated under a duty of confidence from, the Company, its
      affiliates, and/or its clients, business partners or customers.

     

    
      
        
        

      

      
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    (c) The
      Executive affirms that he does not possess and will not rely upon the protected
      trade secrets or confidential or proprietary information of his prior
      employer(s) in providing services to the Company. 

    


    (d) In
      the
      event that the Executive’s employment with the Company terminates for any
      reason, the Executive shall deliver forthwith to the Company any and all
      originals and copies of Confidential Information.

    


    14. Non-Competition
      And Non-Solicitation.
      

     

    (a) The
      Executive agrees and acknowledges that by virtue of his position in the Company,
      he is familiar with and in possession of the Company’s trade secrets, customer
      information and other Confidential Information which are valuable to the
      Company and
      that
      their goodwill, protection and maintenance constitute a legitimate business
      interest of the Company, to be protected by the non-competition restrictions
      set
      forth herein. The Executive agrees and acknowledges that the non-competition
      restrictions set forth herein are reasonable and necessary and do not impose
      undue hardship or burdens on the Executive. The Executive also acknowledges
      that
      the products and services developed or provided by the Company, its
      affiliates and/or its clients or customers
      are or
      are intended to be sold, provided, licensed and/or distributed to customers
      and
      clients in and throughout the United States (the “Geographic
      Boundary”)
      (to
      the extent the Company comes to own or operate any material asset in other
      areas
      of the United States during the term of the Executive’s employment, the
      definition of Geographic Boundary shall be expanded to cover such other areas),
      and that the Geographic Boundary, scope of prohibited competition, and time
      duration set forth in the non-competition restrictions set forth below are
      reasonable and necessary to maintain the value of the Confidential Information
      of, and to protect the goodwill and other legitimate business interests of,
      the
      Company, its
      affiliates and/or its clients or customers.
      

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

    


    (b) The
      Executive agrees that the Company will be irreparably damaged if Executive
      were
      to provide services or to otherwise participate in the business of any Person
      or
      other company competing with the Company in violation of this Agreement and
      any
      such competition by the Executive would result in significant loss of goodwill
      by the Company. Therefore, the Executive hereby agrees and covenants that he
      shall not, without the prior written consent of the Company, directly or
      indirectly, in any capacity whatsoever, including, without limitation, as an
      employee, employer, consultant, principal, partner, shareholder, officer,
      director or any other individual or representative capacity (other than a holder
      of less than one percent (1%) of the outstanding voting shares of any publicly
      held company), or whether on the Executive’s own behalf or on behalf of any
      other person or entity or otherwise howsoever, during the Executive’s employment
      with the Company and for a period equal to the greater of (i) one year (two
      years, if termination of this Agreement or of Executive’s employment is pursuant
      to Section 12(f)(i) hereof) following the termination of this Agreement or
      of
      the Executive’s employment with the Company or (ii) the period during which the
      Executive continues to receive his base salary pursuant to Sections 12(e) or
      12(f)(ii) of this Agreement following the termination of this Agreement and
      of
      the Executive’s employment, in the Geographic Boundary:

    


    (i) Directly
      or indirectly engage, own, manage, operate, control, be employed by, consult
      for, participate in, render services for or be connected in any manner with
      the
      ownership, management, operation or control of any business in competition
      with
      the Business of the Company. The “Business
      of the Company”
is
      defined as the Internet video industry within the Geographic Boundary.


    


    (ii) Directly
      or indirectly through another person recruit, solicit interfere with or hire,
      or
      attempt to recruit, solicit, interfere with or hire, any employee, or
      independent contractor of the Company to leave the employment (or independent
      contractor relationship) thereof, whether or not any such employee or
      independent contractor is party to an employment agreement. The Company
      acknowledges that this Section will not be violated by general advertising
      or
      general solicitations that are not targeted or directed specifically to
      employees of the Company, nor by the consideration or acceptance of unsolicited
      applications for employment by such individuals. 

    


    (iii) Directly
      or indirectly through another person, attempt in any manner to solicit or accept
      from any customer of the Company, with whom the Executive had significant
      contact during the term of the Agreement, business of the kind or competitive
      with the business done by the Company with such customer or to persuade or
      attempt to persuade any such customer to cease to do business or to reduce
      the
      amount of business which such customer has customarily done or is reasonably
      expected to do with the Company, or if any such customer elects to move its
      business to a person other than the Company, provide any services (of the kind
      or competitive with the Business of the Company) for such customer, or have
      any
      discussions regarding any such service with such customer, on behalf of such
      other person.

    


    (iv) Interfere
      with any relationship, contractual or otherwise, between the Company and any
      other party, including; without limitation, any supplier, co-venturer or joint
      venturer of the Company to discontinue or reduce its business with the Company
      or otherwise interfere in any way with the Business of the Company.

    


    15. Dispute
      Resolution.
      The
      Executive and the Company agree that any dispute or claim, whether based on
      contract, tort, discrimination, retaliation, or otherwise, relating to, arising
      from, or connected in any manner with this Agreement or with the Executive’s
      employment with Company shall be resolved exclusively through final and binding
      arbitration under the auspices of the American Arbitration Association
      (“AAA”).
      The
      arbitration shall be held in San Francisco, CA. The arbitration shall proceed
      in
      accordance with the National Rules for the Resolution of Employment Disputes
      of
      the AAA in effect at the time the claim or dispute arose, unless other rules
      are
      agreed upon by the parties. The arbitration shall be conducted by one arbitrator
      who is a member of the AAA, unless the parties mutually agree otherwise. The
      arbitrators shall have jurisdiction to determine any claim, including the
      arbitrability of any claim, submitted to them. The arbitrators may grant any
      relief authorized by law for any properly established claim. The interpretation
      and enforceability of this paragraph of this Agreement shall be governed and
      construed in accordance with the United States Federal Arbitration Act, 9.
      U.S.C. § 1, et
      seq.
      More
      specifically, the parties agree to submit to binding arbitration any claims
      for
      unpaid wages or benefits, or for alleged discrimination, harassment, or
      retaliation, arising under Title VII of the Civil Rights Act of 1964, the Equal
      Pay Act, the National Labor Relations Act, the Age Discrimination in Employment
      Act, the Americans With Disabilities Act, the Employee Retirement Income
      Security Act, the Civil Rights Act of 1991, the Family and Medical Leave Act,
      the Fair Labor Standards Act, Sections 1981 through 1988 of Title 42 of the
      United States Code, COBRA, the New York State Human Rights Law, the New York
      City Human Rights Law, and any other federal, state, or local law, regulation,
      or ordinance, and any common law claims, claims for breach of contract, or
      claims for declaratory relief. The Executive acknowledges that the purpose
      and
      effect of this paragraph is solely to elect private arbitration in lieu of
      any
      judicial proceeding he might otherwise have available to him in the event of
      an
      employment-related dispute between him and the Company. Therefore, the Executive
      hereby waives his right to have any such employment-related dispute heard by
      a
      court or jury, as the case may be, and agrees that his exclusive procedure
      to
      redress any employment-related claims will be arbitration.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    


    16. Notice.
      For
      purposes of this Agreement, notices and all other communications provided for
      in
      this Agreement or contemplated hereby shall be in writing and shall be deemed
      to
      have been duly given when personally delivered, delivered by a nationally
      recognized overnight delivery service or when mailed United States Certified
      or
      registered mail, return receipt requested, postage prepaid, and addressed as
      follows:

    


    If
      to the
      Company: 

    


    GoFish
      Corporation

    500
      Third
      Street

    Suite
      260

    San
      Francisco, CA 94107

    (415)
      738-8834 (facsimile)

    (415)
      738-8705 (direct)

     

    If
      to the
      Executive:

    


    Michael
      Downing

    2299
      Pacific #51

    San
      Francisco, CA 94115

    (415)
      810-5580 (direct) 


    


    17. Miscellaneous.

    


    (a) All
      issues and disputes concerning, relating to or arising out of this Agreement
      and
      from the Executive’s employment by the Company, including, without limitation,
      the construction and interpretation of this Agreement, shall be governed by
      and
      construed in accordance with the internal laws of the State of California,
      without giving effect to that State’s principles of conflicts of
      law.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    


    (b) The
      Executive and the Company agree that any provision of this Agreement deemed
      unenforceable or invalid may be reformed to permit enforcement of the
      objectionable provision to the fullest permissible extent. Any provision of
      this
      Agreement deemed unenforceable after modification shall be deemed stricken
      from
      this Agreement, with the remainder of the Agreement being given its full force
      and effect.

    


    (c) The
      Company shall be entitled to equitable relief, including injunctive relief
      and
      specific performance as against the Executive, for the Executive’s threatened or
      actual breach of Sections 13 or 14 of this Agreement, as money damages for
      a
      breach thereof would be incapable of precise estimation, uncertain, and an
      insufficient remedy for an actual or threatened breach of Sections 13 or 14
      of
      this Agreement. The Executive and the Company agree that any pursuit of
      equitable relief in respect of Sections 13 or 14 of this Agreement shall have
      no
      effect whatsoever regarding the continued viability and enforceability of
      Section 15 of this Agreement.

    


    (d) Any
      waiver or inaction by the Company for any breach of this Agreement shall not
      be
      deemed a waiver of any subsequent breach of this Agreement.

    


    (e) The
      Executive and the Company independently have made all inquiries regarding the
      qualifications and business affairs of the other which either party deems
      necessary. The Executive affirms that he fully understands this Agreement’s
      meaning and legally binding effect. Each party has participated fully and
      equally in the negotiation and drafting of this Agreement. Each party assumes
      the risk of any misrepresentation or mistaken understanding or belief relied
      upon by him or it in entering into this Agreement.

    


    (f) The
      Executive’s obligations under this Agreement are personal in nature and may not
      be assigned by the Executive to any other person or entity.

    


    (g) This
      instrument constitutes the entire Agreement between the parties regarding its
      subject matter. When signed by all parties, this Agreement supersedes and
      nullifies all prior or contemporaneous conversations, negotiations, or
      agreements, oral and written, regarding the subject matter of this Agreement.
      In
      any future construction of this Agreement, this Agreement should be given its
      plain meaning. This Agreement may be amended only by a writing signed by the
      Company and the Executive.

    


    (h) This
      Agreement may be executed in counterparts, a counterpart transmitted via
      facsimile, and all executed counterparts, when taken together, shall constitute
      sufficient proof of the parties’ entry into this Agreement. The parties agree to
      execute any further or future documents which may be necessary to allow the
      full
      performance of this Agreement. This Agreement contains headings for ease of
      reference. The headings have no independent meaning.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

    


    (i) THE
      EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT
      AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION THEREOF. THIS
      AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY BOTH
      PARTIES.


    


    [Signature
      Page Follows]



    
      
        
        

      

      
        13

        
          

        

      

       

    


    IN
      WITNESS WHEREOF, the Company and the Executive have executed this 

    Employment
      Agreement as
      of the
      day and year first above written.

    
      	 	 	 
	Executive	GoFish
              Corporation
	 
 	 
 	 
 
	/s/
              Michael Downing	By:  	/s/ Louis
              W.
              Zehil
	
              
Michael
              Downing	
              
Name: Louis
              W. Zehil
	 	Title: Corporate
              Secretary




             

    
      
        
        

      

      
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