Exhibit 10.11 - Second Amended Employment Agreement between the Company and
Xxxxxx X. Xxxxx
SECOND AMENDED EMPLOYMENT AGREEMENT
THIS SECOND AMENDED EMPLOYMENT AGREEMENT, made this 11th day of August,
2006, by and between Xxxxxx Xxxxx, an individual currently residing at 00000
Xxxxxxx Xxxx, Xxxx, Xxxxxxx 00000 (the "Executive"), and Medical Media
Television, Inc. (f/k/a PetCARE Television Network, Inc.), a Florida
corporation, maintaining business offices at 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxxxx,
Xxxxxxx 00000 (the "Company").
BACKGROUND INFORMATION
The Company and the Executive are currently parties to an Employment
Agreement, dated June 5, 2002 (the "Original Agreement"), and an Amended
Employment Agreement dated March 21, 2006 (the "Amended Agreement"). The Company
and Executive desire to amend and replace the Original Agreement and the Amended
Agreement in their entirety as set forth herein (this "Agreement"). Accordingly,
the parties agree as follows:
OPERATIVE PROVISIONS
1. Employment and Term.
The Company hereby employs Executive and the latter hereby accepts
employment by the Company for the period commencing March 1, 2006 (the
"Commencement Date") and continuing until terminated by the occurrence of one of
the events described in Section 8 hereof (the "Term").
2. Duties. During the Term of this Agreement, the Executive shall render
to the Company services as President and Chief Executive Officer. During the
Term, the Executive shall devote his full business attention, time and energies
to the operations and affairs of the Company and will use his best efforts to
promote the interests and reputations of the Company, provided, however, that
the Executive shall devote no less than 40 hours per week to such duties.
3. Base Compensation. For the services to be rendered by the Executive
under this Agreement the Company shall pay him, while he is rendering such
services and performing his duties hereunder, and the Executive shall accept as
full payment for such services, a base compensation of $150,000, payable in
equal installments of $12,500 per month (the "Base Compensation"). Such Base
Compensation shall be renegotiated at the end of each fiscal year of the Company
during the Term of this Agreement, but Base Compensation shall not be reduced
without the written consent of the Executive, which can be withheld in his sole
and absolute discretion. Additionally, at the discretion of the Board of
Directors, bonuses may be paid to the Executive to reward him for outstanding
service to the Company.
4. Vacation; Fringe Benefits; Reimbursement of Expenses.
During the Term of this Agreement, the Executive shall be entitled to take
such fully paid weeks of vacation as the Company outlines for its executives.
The Executive has full discretion on the timing of his vacation. He shall not be
entitled to receive monetary or other valuable consideration for vacation time
to which he is entitled but does not take.
During his period of employment hereunder, the Executive shall further be
entitled to (a) such leave by reason of physical or mental disability or
incapacity and to such participation in medical and life insurance, pension
benefits, disability and other fringe benefit plans as the Company may make
generally available to its employees from time to time; subject, however, as to
such plans, to such budgetary constraints or other limitations as may be imposed
by the Company from time to time (major medical insurance and long-term
disability policies must be provided to the Executive, whether or not provided
to other employees, and must be in a form as is reasonably acceptable to the
Executive and the Company) and (b) reimbursement for all normal and reasonable
expenses necessarily incurred by him in the performance of his obligations
hereunder, subject to such reasonable substantiation requirements as may be
imposed by the Company. Such expenses shall include, but not be limited to:
a. License fees, membership dues in professional organizations, and
subscriptions to professional journals;
b. The Executive's necessary travel, hotel and entertainment
expenses incurred in connection with overnight, out-of-town trips for
educational, professional or other related meetings or in connection with other
events that contribute to the benefit of the Company;
c. The Executive's necessary travel and entertainment expenses in
connection with in-town events for education, professional and other related
meetings that contribute to the benefit of the Company; and
d. Other expenses as pre-approved;
and (c) the Company shall lease or own the automobile selected and used by the
Executive in the conduct of Executive's business, and the Company shall pay for
all gas, oil, repairs and maintenance, lease payments (if any), installment
purchase payments (if any), allowance for depreciation (if any) and insurance
related to such automobile. In no event shall such amounts exceed in the
aggregate $600.00 per month.
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5. Proprietary Interests.
a. Confidentiality. During or after the expiration of his term of
employment with the Company, the Executive shall not communicate or divulge to,
or use for the benefit of, any individual, association, partnership, trust,
corporation or other entity except the Company, any proprietary or confidential
information of the Company received by the Executive by virtue of such
employment, without first being in receipt of the Company's written consent to
do so; provided that nothing contained herein shall restrict the Executive's use
or disclosure of such information known to the public or known to the Executive
prior to employment by the Company (other than that which he may have disclosed
in breach of this Agreement), or as required by law (so long as the Executive
gives the Company prior notice of such required disclosure).
b. Customer and Employee Information. The Executive acknowledges
that all records with respect to customers serviced by the Company or with
respect to employees of the Company ("Associated Employees) and lists of
customers or proposed customers of the Company, or of Associated Employees, and
all personal, financial or business information concerning the customers or
proposed customers of the Company or of Associated Employees, obtained by the
Executive during the course of the Executive's employment, are valuable and
unique and are proprietary assets of the Company. During the Executive's
employment by the Company and following the termination thereof, the Executive
will not at any time disclose any of the records, lists or information
previously described in this subsection, nor utilize the same for any reason not
previously authorized in writing by the Company.
c. Restrictive Covenant.
i. Scope of Covenant. The Executive shall not, within
any state in which the Company does business during the greater of
(a) a three (3) year period following termination of such
employment, or (b) during any period in which he is being paid
severance pursuant to this Agreement, for himself, or as an owner,
officer, director, agent or employee of, or a consultant for, or on
behalf of or in conjunction with, any person, firm, association,
partnership or corporation, directly or indirectly, engage in any
activity that is in competition with the Company at the time of
Executive's termination of his employment or during the term of
Executive's employment with the Company. Moreover, during such time,
the Executive will not recruit or hire any employee of the Company,
or otherwise induce such employee to leave the employment of the
Company, to become an employee of or otherwise be associated with
Executive or any company or business with which Executive is or may
become associated. The parties hereto agree that the terms of his
restrictive covenant are reasonably necessary for the protection of
the Company's legitimate business interests, and that such terms are
the least restrictive terms necessary to protect such legitimate
business interests.
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ii. Divisibility of Covenant Period. If any portion of
the restrictive covenant contained herein is held to be
unreasonable, arbitrary or against public policy, such covenant
shall be considered divisible both as to time and geographic area,
such that each month within the specified period shall be deemed a
separate period of time and each county in each state in which the
Company does business shall be deemed a separate geographical area,
resulting in an intended requirement that the longest lesser time
and largest lesser geographic area determined not to be
unreasonable, arbitrary or against public policy shall remain
effective and be specifically enforceable against the Executive.
iii. Covenant Independent. Each restrictive covenant on
the part of the Executive set forth in this Agreement shall be
construed as a covenant independent of any other covenant or
provision of this Agreement or any other agreement which the
Executive may have, whether fully performed or executory, and the
existence of any claim or cause of action by the Executive against
the Company, whether predicated upon another covenant or provision
of this Agreement or otherwise, shall not constitute a defense to
the enforcement by the Company or any other covenant.
d. Court Proceedings. In any action or proceeding by the Company
relating to or involving the enforcement of this Section 5, the Executive hereby
waives any and all right to a trial by jury with respect to the action,
proceeding, or other litigation resulting from or involving the enforcement of
this Section 5. Further, in any action or proceeding by the Company to obtain a
temporary restraining order and/or preliminary injunction, the Executive hereby
agrees to waive the necessity of the Company posting an injunction bond in order
to obtain a temporary restraining order and/or preliminary injunction. Should
the Company's action for a temporary restraining order and/or motion for
preliminary injunction be granted in whole or in part and should the Company be
ultimately unsuccessful in obtaining a permanent injunction to enforce the
covenant, the Executive hereby waives any and all rights the Executive may have
against the Company for any injuries or damages, including consequential
damages, sustained by the Executive and arising directly or indirectly from the
issuance of the temporary restraining order and/or preliminary injunction.
e. Indemnification. The Executive hereby agrees to indemnify and
hold the Company harmless from and against any losses, claims, damages or
expenses, and/or all costs of prosecution or defense of its rights hereunder,
whether in judicial proceedings, including appellate proceedings, or whether out
of court, including without limiting the generality of the foregoing, attorney's
fees, and all costs and expenses of litigation, arising from or growing out of
the Executive's breach or threatened breach of any covenant contained herein.
The Company shall indemnify the Executive to the extent permitted by the Florida
Business Corporation Act.
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f. Survival of Covenants. All covenants contained in this Section 5
shall survive the termination of this Agreement.
g. Company Defined. For purposes of this Section 5, the term
"Company" shall include any and all predecessors of the Company.
6. Remedies for Breach of Obligations. The parties agree that the services
of the Executive are of a personal, specific, unique and extraordinary character
and cannot be readily replaced by the Company. They further agree that in the
course of performing his services, the Executive will have access to various
types of proprietary information of the Company, which, if released to others or
used by the Executive other than for the benefit of the Company, in either case
without the Company's consent, could cause the Company to suffer irreparable and
continuing injury. Therefore, the obligations of the Executive established under
Section 5 hereof shall be enforceable by the Company both at law and in equity,
by injunction, specific performance, damages or other remedy; and the right of
the Company to obtain any such remedy shall be cumulative and not alternative
and shall not be exhausted by any one or more uses thereof.
7. Termination of Employment.
a. Death. The Executive's employment hereunder shall terminate in
the event of the Executive's death. In the event of the Executive's death, the
Executive shall be entitled to receive any salary and benefits accrued, vested
and unpaid as of the date of any such termination, as well as one year's Base
Compensation following the date of such termination. Thereafter, the Company
shall be under no further obligation hereunder to the Executive or to his heirs
or personal representatives, and the Executive or his heirs or personal
representatives no longer shall be entitled to receive any payments or any other
rights or benefits under this Agreement.
b. Disability. The Company may terminate the Executive's employment
hereunder if the Executive becomes "Totally and Permanently Disabled" (as
defined below) and remains so for a period of more than twelve months, measured
from the first day of the first calendar month occurring after the beginning of
such disability (the "Disability"). In the event of such Disability, the
Executive shall be entitled to receive any salary and benefits accrued, vested
and unpaid as of the date of any such termination, including all disability
benefits payable thereafter pursuant to any disability insurance policy
maintained by the Company; and upon the Executive's receipt of such salary and
benefits, the Company shall be under no further obligation hereunder to the
Executive, and the Executive no longer shall be entitled to receive any payments
or any other rights or benefits under this Agreement. As used herein, the term
"Totally and Permanently Disabled" means Executive's inability to perform any
substantial duties required of the Executive pursuant to this Agreement.
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c. Termination by the Company for Cause. The Company may terminate
the Executive's employment hereunder for "Cause." For purposes of this
Agreement, "Cause" shall mean any of the following:
i. The Executive's repeated willful misconduct or gross
negligence;
ii. The Executive's repeated conscious disregard of his
obligations hereunder or of any other written duties reasonably
assigned to him by the Board of Directors;
iii. The Executive's repeated conscious violation of any
provision of the Company's by-laws or of its other stated policies,
standards or regulations;
iv. The Executive's commission of any act involving
fraud or moral turpitude; or
v. A determination by an independent medical
practitioner that the Executive has demonstrated a dependence upon
any addictive substance, including alcohol, controlled substances,
narcotics or barbiturates;
provided, however, that if the Board of Directors of the Company desires to
terminate the Executive for any of the reasons set forth in: (1) clause (i),
(ii) or (iii) of this Section 8c., the Company, within the 60 day period
immediately following each alleged commission of a proscribed act or omission,
shall have furnished to the Executive a written description of the allegedly
proscribed act or omission and a statement advising him that the Company views
such conduct as being of the type which could lead to a termination of the
Executive for Cause; (2) clause (ii) or (iii) of this Section 8c., the Board
must be able to demonstrate that the Executive has been furnished with a copy of
the written duty, by-law provision, policy, standard or regulation, the
violation of which the Executive is being accused, at a time prior to the
alleged commission of the violation; or (3) clause (iv) or (v) of this Section
8c., the Board shall first be required to obtain an opinion from Company counsel
to the effect that there is an adequate basis upon which either such
determination may be made. Except for any salary and benefits accrued, vested
and unpaid as of the date of any such termination, the Company shall be under no
further obligation hereunder to the Executive, and the Executive no longer shall
be entitled to receive any payments or any other rights or benefits under this
Agreement.
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d. Termination by the Company Other Than for Cause. The Company may
terminate the Executive's employment hereunder at any time without Cause upon 30
days notice to the Executive, and subject, in either event, to the right of the
Executive, within such notification period, to effect his own "Good Reason"
termination as described in subsection e. below. In the event of either such
termination, the Executive shall be entitled to receive any salary and benefits
accrued, vested and unpaid as of the date of any such termination, as well as,
in the event that the Executive shall have timely effected a Good Reason
termination, those benefits authorized under the provisions of subsection e.;
and following his receipt of such salary and benefits, the Company shall be
under no further obligation hereunder to the Executive, and the Executive no
longer shall be entitled to receive any payments or any other rights or benefits
under this Agreement.
e. Termination by the Executive for Good Reason. Notwithstanding
anything herein to the contrary, the Executive shall be entitled to terminate
his employment hereunder for "Good Reason" without breach of this Agreement. For
purposes of this Agreement, "Good Reason" shall exist upon the occurrence of any
of the following events or matters, in each case without the Company first being
in receipt of the Executive's written consent thereto, and the period of time
within which the Executive shall be required to exercise a Good Reason
termination of service shall be 30 days, measured from the date upon which he is
notified by the Company of such occurrence, or, with respect to the matter
identified in subparagraph iii. below, from the date upon which the Executive
notifies the Company of his belief that a material breach has occurred:
i. A material adverse change in, or a substantial
elimination of, the duties and responsibilities of the Executive;
ii. A material breach by the Company of its obligations
hereunder; or
iii. Receipt by the Executive of the Company's notice
that it intends to terminate him other than for Cause.
In the event of a Good Reason termination by the Executive, the Executive
shall be entitled to continue to receive from the Company his Base Compensation,
his total medical insurance package, and all benefits relating to the use of an
automobile as outlined herein, in effect at the time of termination for a period
of five years, payable as provided in Section 3(a). Except for such continuing
entitlement to compensation following any such termination, and except for any
salary and benefits accrued, vested and unpaid as of the date of any such
termination, the Executive no longer shall be entitled to receive any payments
or any other rights or benefits under this Agreement, and the Company shall have
no further obligation hereunder to the Executive following any such termination.
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f. Termination by the Executive for Other Than Good Reason. The
Executive may terminate his employment hereunder, provided that notice of
termination is provided at least one year before the date of such termination.
In the event of such termination, the Executive shall be entitled to receive any
salary and benefits accrued, vested and unpaid as of the date of any such
termination; and following his receipt of such salary and benefits to the
Company shall be under no further obligation hereunder to the Executive, and the
Executive no longer shall be entitled to receive any payments or any other
rights or benefits under this Agreement.
8. Indebtedness of Executive. If, during the course of his employment, the
Executive becomes indebted to the Company for any reason, the Company shall, if
it so elects, have the right to set-off and to collect any sums due it from the
Executive out of any amounts which it may owe to the Executive for unpaid
compensation. In the event that this Agreement terminates for any reason, all
sums owed by the Executive to the Company shall become immediately due and
payable.
9. Miscellaneous Provisions.
a. Notice: All notices, consents, joinders and other communications
required, permitted or otherwise contemplated hereunder shall be in writing and
shall be considered as properly furnished to the recipient if hand delivered or
sent by first class, certified or express mail, postage prepaid in all cases and
return receipt requested if sent by certified mail; by telegram (with messenger
service specified); by courier services, charges prepaid or billed to the
sender; or by facsimile transmission through the use of telecopier equipment; in
each case to such recipient's published address (or his, her or its published
telecopier or telephone number). If the notice is sent by mail, telegraph or
courier services, it shall be deemed to have been furnished to the recipient
when deposited in the United States mail or with a telegraph office or courier
service for delivery thereto or, in the case of facsimile transmission, when
dispatched. If a recipient's address or telephone or telecopier number is
unpublished, any communication hereunder will be deemed sufficiently furnished
if made to the appropriate address appearing in the preamble hereto or to any
telephone or telecopier number previously furnished by the recipient. Notice of
any change in address or in telephone or telecopier number shall also be
furnished in the manner set forth above. Whenever the furnishing of notice is
required, the same may be waived by the party entitled to receive such notice.
b. Assignability: Neither this Agreement nor any right or interest
hereunder shall be assignable by the Company or the Executive.
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c. Entire Agreement: This Agreement, and any other document
referenced herein, constitute the entire understanding of the parties hereto
with respect to the subject matter hereof, and no amendment, modification or
alteration of the terms hereof shall be binding unless the same be in writing,
dated subsequent to the date hereof and duly approved and executed by each of
the parties hereto.
d. Enforceability: If any term or condition or this agreement shall
be invalid or unenforceable to any extent or in any application, then the
remainder of this agreement, and such term or condition except to such extent or
in such application, shall not be affected thereby and each and every term and
condition of this agreement shall be valid and enforced to the fullest extent
and in the broadest application permitted by law.
e. Application of Law and Venue: This Agreement, and the application
or interpretation thereof, shall be governed exclusively by its terms and by the
laws of the State of Florida. Venue shall be deemed located in Hillsborough
County, Florida.
f. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, or regarding the failure or refusal to
perform the whole or any part of this Agreement shall be settled by arbitration
in Hillsborough County, Florida, in accordance with the rules of the American
Arbitration Association, and the judgment upon the award rendered may be entered
in any court having jurisdiction hereof. Any decision made by an arbitrator or
by the arbitrators under the provision shall be enforceable as a final and
binding decision as it if were a final decision or decree of a court of
competent jurisdiction. Notwithstanding the foregoing, the Company may enforce
its rights pursuant to Section 5 in a court of competent jurisdiction in
Hillsborough County, Florida.
g. Counterparts: This Agreement may be executed by any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
h. Binding Effect: Each of the provisions and agreements herein
contained shall be binding upon and inure to the benefit of the personal
representatives, devisees, heirs, successors, transferees and assigns of the
respective parties hereto.
i. Legal Fees and Costs: If a legal action is initiated by any party
to this Agreement against another, arising out of or relating to the alleged
performance or non-performance of any right or obligation established hereunder,
or any dispute concerning the same, any and all fees, costs and expenses
reasonably incurred by each successful party or his or its legal counsel in
investigating, preparing for, prosecuting, defending against, or providing
evidence, producing documents or taking any other action in respect of, such
action shall be the joint and several obligation of and shall be paid or
reimbursed by the unsuccessful party or parties.
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j. Cancellation of Prior Employment Agreements. The execution of
this Agreement by the Executive shall cancel and nullify all other employment
agreements to which the Executive is a party.
IN WITNESS WHEREOF, the parties have executed this Agreement.
THE COMPANY: EXECUTIVE:
MEDICAL MEDIA TELEVISION, INC.
/s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxxx
Title: Sr. Vice President/CFO
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