110 MEDIA GROUP, INC.
00 Xxxxxxxxxxx Xxxx Xxxxx 000
Xxxxxxxx, XX 00000
Xxxxxxx Xxxxxxx
00 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xxxxxxx:
This letter sets forth the Amended agreement regarding your employment (the
"Agreement") with 110 Media Group, Inc. (the "Company"), a Delaware corporation
that comprises the businesses of wholly-owned subsidiaries, upon the terms and
conditions set forth herein.
START DATE: February 14, 2005
EMPLOYMENT TERM: The term will be for a period of three (3) ("Initial Term")
provided that the Initial Term may be automatically extended for up to two (2)
additional twelve month periods unless either party gives written notice to the
other to not proceed with such renewal at least sixty (60) days prior to the
expiration of the then existing term (the "Renewal Term"). Either the Company or
you may terminate your employment during the Initial Term or any Renewal Term
for any reason, with or without Cause, provided however, you agree to deliver to
the Company written notice of such termination at least one hundred twenty (120)
days prior to your last date of employment.
TITLE AND DUTIES: You will be employed in the position of President of the
Company working from the headquarters of The Company presently located at 00
Xxxxxxxxxxx Xxxx - Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000, or at such other New
York City or Long Island address as the Company shall designate. Your duties and
responsibilities shall be on a full-time basis and shall be subject, at all
times, to the direction and supervision of the Company's Chief Executive Officer
and its Board of Directors ("Board"). Your responsibilities shall include, but
not limited to, using your best efforts to (i) participate, together with
executives and consultants of the Company, its parent, or its affiliates and
subsidiaries in the structuring and negotiation of licensing, sales or related
commercial transactions for Company Products; (ii) execute the overall business
strategy to develop the Company Businesses; (iv) participate in the preparation
of financial budgets and operating plans for the Company, its parent, and its
affiliates and subsidiaries along with the Company's SEC filings; (v)
participate in the analysis of potential acquisition, joint venture, merger and
similar type of transactions for the Company, its parent, and affiliates and
subsidiaries; (vi) participate in the raising of capital for the Company, its
parent, affiliates and subsidiaries operations; (v) manage the Company, its
parent, and affiliates and subsidiaries' personnel in the performance of their
duties, and (vi) to carry out such other matters of a similar nature as directed
by a member of the Company's Board.
BASE SALARY: During each twelve (12) month period of the Initial Term and any
Renewal Term, you will be paid a base salary of $95,000 ("Base Salary"), payable
in accordance with the Company's normal payroll practice, which is presently
weekly. In addition as part of the base salary you will receive 40,000 shares of
S8 stock in the company deliverable immediately upon execution of this
agreement.
QUARTERLY BONUS: In addition to your Base Salary, during the Initial Term, you
will be entitled to receive a performance based bonus ("Quarterly Bonus")
calculated and payable on a quarterly basis in arrears, which will be equal to
2% of the Company's consolidated gross revenue derived from for the prior
calendar quarter, up to a maximum of $20,000 per quarter. Quarterly Bonus's
earned shall be payable thirty (30) days following the end of the last calendar
month of the prior quarter. Quarterly bonus may at your discretion be paid in S8
stock in the Company in lieu of cash.
COMPENSATION REVIEWS: Base Salary reviews shall be performed annually on each
anniversary of your Start Date. Any increases in Base Salary or cash bonuses, or
any continuation of the Quarterly Bonus beyond the initial twelve (12) month
period, shall be made in the Company's discretion on the appropriate anniversary
date by the independent members of the Company's Board of Directors (or
Compensation Committee if so formed), or by the non-interested members of the
Company's Board of Directors if no independent members are elected, pursuant to
both the Company's guidelines as they exist from time to time, and the Company's
overall financial, as well as your individual, performance.
SEVERANCE: In the event that your employment is terminated without Cause by the
Company, or you terminate your employment for Cause, you shall be entitled to
severance at the rate provided by your Base Salary on the following basis:
Months employed Months of severance payment
0-12 4
12-24 9
after 24 12
BENEFITS: You will be eligible to participate in any management bonus plan and
entitled to such benefits, health insurance and vacation which are, or will be,
provided to other senior executives of the Company.
EXPENSES: You will be reimbursed upon submission of appropriate documentation
for all reasonable expenses including travel (local and out of town) incurred by
you in the performance of your employment hereunder, provided however, that you
shall not incur any such expenses in excess of $3,000 without the prior written
consent of an independent member of the Board or an authorized financial officer
of the Company.
TERMINATION:
(a) Your employment shall terminate upon the first to occur of the following:
(1) The expiration of the Initial Term or any Renewal Term specified above.
(2) Upon your (i) death or (ii) permanent disability or incapacity.
(3) For Cause. The Company shall have the right to terminate your employment
upon twenty-four (24) hours' written notice to you For Cause. The grounds for
such termination For Cause shall be:
(i) a material, uncured breach of your agreement of employment hereunder,
including, but not limited to a violation of any noncompetition,
non-solicitation or confidentiality provisions hereinafter set forth,
(ii) Your arrest for fraud, embezzlement, bribery, act of moral turpitude or any
felonious offense (other than strictly a motor vehicle matter, provided that a
conviction for a motor vehicle matter other than a minor traffic violation,
constitutes grounds for termination For Cause); or
(iii) Your commission of any act of fraud, dishonesty or negligence in
connection with the performance of your duties as an employee of the Company; or
(iv) Your willful and repeated failure or refusal (unremedied after five (5)
business days written notice from the Company of such failure or refusal) to
perform your duties and responsibilities as are established by the Company's
Board of Directors (or Audit Committee), from time to time.
(4) Upon written notice from either the Company, or you, which notice if
delivered by you shall be received by the Company no less than one hundred
twenty (120) days prior to the date of termination and if delivered by the
Company, shall be received by you no less than thirty (30) days prior to the
date of termination.
(b) Except as otherwise stated in "Severance" above, if you are terminated for
Cause, the Company shall have no further financial or other obligations to you
following the last date of employment.
AGREEMENT NOT TO COMPETE: In consideration of the above, you agree that during
the Initial Term or any Renewal Term, and for twelve (12) months following the
expiration of such term or earlier termination of your employment, you shall not
either for yourself or on behalf of any other person, partnership, corporation
or entity, directly or indirectly or by action in concert with others:
(a) interfere with any of the Company's or its parent, affiliates' or its
subsidiaries' relationships with, or endeavor to employ or entice away from the
Company or its parent, affiliates or its subsidiaries, any person who, at any
time on or after the date hereof, is or shall be an employee of the Company or
its parent, affiliates or its subsidiaries or under some other contractual
relationship with the Company, interfere with or seek to adversely alter the
Company's or its parent, affiliates or its subsidiaries' relationship with,
solicit or divert any supplier, licensee or distributor of the Company or its
parent, affiliates or its subsidiaries; or
(b) Seek or obtain employment with, or provide services to, any party that has
in the past twelve (12) months had an agreement, or engaged in any business
transaction of a material nature with the Company.
PROPERTY RIGHTS: With respect to information, inventions and discoveries or any
interest in any copyright and/or property right developed, made or conceived of
by you, either alone or with others, at any time during your employment by the
Company and whether or not within working hours (and written six months
thereafter) arising out of such employment or pertinent to any field of business
or research in which, during such employment, the Company is engaged or (if such
is known to or ascertainable by you) is considering engaging, you agree:
(a) that all such information, inventions and discoveries or any interest in any
copyright and/or other property right, whether or not patented or patentable,
shall be and remain the exclusive property of the Company, whether or not it is
protected or protectible under applicable patent, trademark, service xxxx,
copyright or trade secret laws which shall be deemed work made for hire as
defined in Section 101 of the Copyright Act, 15 U.S.C. Section 101. If it is
determined that any such works are not works made for hire, you hereby assign to
the Company all of your right, title and interest, including all rights of
copyright, patent, and other intellectual property rights, to or in such work
product;
(b) to disclose promptly to an authorized representative of the Company all such
information, inventions and discoveries or any copyright and/or other property
right and all information in your possession as to possible applications and
uses thereof;
(c) not to file any patent application relating to any such invention or
discovery except with the prior written consent of an authorized officer of the
Company (other than yourself);
(d) that you hereby waive and release any and all rights you may have in and to
such information, inventions and discoveries and hereby assign to the Company
and/or its nominees all of your right, title and interest in them and all your
right, title and interest in any patent, patent application, copyright or other
property right based thereon. You hereby irrevocably designate and appoint the
Company and each of its duly authorized officers and agents as your agent and
attorney-in-fact to act for you and in your behalf and stead to execute and file
any document and to do all other lawfully permitted acts to further the
prosecution, issuance and enforcement of any such patent, patent application,
copyright or other property right with the same force and effects as if executed
and delivered by you; and
(e) at the request of the Company, and without expense to you, to execute such
documents and perform such other acts as the Company deems necessary or
appropriate, for the Company to obtain patents on such inventions in a
jurisdictions designated by the Company, and to assign to the Company or its
designees such inventions and any and all patent applications and patents
relating thereto.
CONFIDENTIALITY: With respect to the information, inventions and discoveries
referred to above and also with respect to all other information, whatever its
nature and form and whether obtained orally, by observation, from Materials (as
defined below) or otherwise (except such as is generally available through
publication), obtained by you and relating to any invention, improvement,
enhancement, product, know-how, formula, software, process, apparatus, design,
drawings, codes, data printouts, magnetic tapes and disks, recordings, marketing
and sales programs, financial projections, concept or other creation, or to any
use of any of them, or to materials, tolerances, specifications, costs
(including, without limitation, manufacturing costs), pricing formulae, or to
any plans of the Company, or to any other trade secret or proprietary
information of the Company, related to the Business and operations of the
Company or the Company's customers, strategic alliances, licensors, parent,
subsidiaries and affiliates, you agree:
(a) to hold all such information, inventions and discoveries which have not
otherwise become public knowledge in strict confidence and not to publish or
otherwise disclose any thereof to any person or entity other than the Company
except with the prior written consent of an authorized officer of the Company or
as may be required by law;
(b) to take all reasonable precautions to assure that all such information,
inventions and discoveries are properly protected from access by unauthorized
persons;
(c) to make no use of nor exploit in any way any such information, invention or
discovery except as required in the performance of your employment duties of the
Company; and
(d) upon termination of your employment by the Company, or at any time upon
request of the Company, to deliver to it all Materials (as defined below) and
all substances, models, software, prototypes and the like containing or relating
to any such information, invention or discovery, all of which Materials (as
defined below) and other things shall be and remain the exclusive property of
the Company. For purposes of this Agreement, the term "Materials" includes,
without limitation, letters, memoranda, reports, notes, notebooks, books of
accounts, drawings, prints, marketing materials, product designs,
specifications, formulae, software, data printouts, microfilms, e-mails,
magnetic tapes and disks and other documents and recordings, together with all
copies, excerpts and summaries, thereof.
INDEMNITY:You shall be indemnified for all claims, liabilities, damages, losses,
costs and expenses of any nature, including but not limited to, reasonable
attorneys' fees, judgments, settlement, fines and penalties that are incurred by
you in connection with the performance of your duties under this Agreement
unless the claim or alleged claim is based in whole or in part upon acts or
omissions by you constituting willful misconduct, gross negligence or fraud.
MISCELLANEOUS: We agree that it is our intention and covenant that your
employment and performance there under be governed by and construed under the
laws of the State of New York concerning contracts to be made and performed
wholly within such state, without regard to any conflict of law principles and
that any dispute between the parties of any kind shall be adjudicated
exclusively in the courts of the State of New York.
(a) This letter sets forth the entire agreement regarding your employment and
may not be modified or changed except by mutual written agreement. Your
obligations hereunder may not be assigned by you. Your employment agreement is
assignable by the Company to a wholly-owned subsidiary or in the event of any
sale, merger, or similar transaction by the Company with a third party or a
related party.
(b) You represent and warrant that the execution, delivery and performance by
you of this Agreement and the matters contemplated thereunder does not, and will
not, violate, result in a breach of, or constitute a default under any agreement
or arrangement to which you are a party. You also represent and warrant that you
have had the opportunity to consult with the counsel of your choice in the
negotiation and execution of this Agreement and that you are satisfied that you
have been adequately and independently represented.
(c) The invalidity of all or any part of any paragraph or subparagraph of this
Agreement shall not render invalid the remainder of the Agreement and
obligations contemplated hereunder.
(d) This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which when together, shall constitute
one and the same agreement.
(e) Any notice given hereunder shall be in writing and either delivered in
person, by nationally recognized overnight courier, or be registered or
certified first class mail, (postage prepaid, addressed) if to the Company at
110 Media Group, Inc., 00 Xxxxxxxxxxx Xx Xxxxx 000, Xxxxxxxx Xxx Xxxx 00000,
attn: Chairman of the Board and (b) if to the Employee at the address noted
above. Notices delivered personally shall be deemed given as of actual receipt;
notices sent via facsimile transmission shall be deemed given as of one business
day following sender's receipt from sender's facsimile machine of written
confirmation of transmission thereof; notices sent by overnight courier shall be
deemed as given as of one business day following sending; and notices mailed
shall be deemed given as of five business days after proper mailing. Any party
may change its address in notice given to the other party in accordance with
this Section (e).
(f) Each party shall fully indemnify the other for all claims, liabilities,
damages, losses, costs and expenses of any nature, including but not limited to,
reasonable attorneys' fees, judgments, settlement, fines and penalties that are
incurred by the counter-party arising out of or in connection with the
performance of each party's obligations under this Agreement unless the claim or
alleged claim resulted from the willful misconduct, gross negligence or fraud of
the party claiming indemnification
If the above meets with your understanding, please countersign this Agreement at
the lower left to acknowledge your agreement and acceptance with the terms and
conditions outlined above and return a signed copy to me at your earliest
convenience. We look forward to a long and mutually rewarding relationship.
Sincerely, 110 Media Group, Inc.
/s/ Xxxxxxx Xxxxxx 02/15/05
------------------------ ----------------
Xxxxxxx Xxxxxx, date
Chief Executive officer
/s/ Xxxxxxx Xxxxxxx 02/15/05
------------------------ ----------------
Xxxxxxx Xxxxxxx, date
President
ACCEPTED AND AGREED TO THIS 15 day of Feb 2005.
/s/ Xxx Xxxxxxx
------------------------
Xxx Xxxxxxx
