Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT made this 1st day of April, 2005, by and
between MediaBay, Inc., a Florida corporation with offices at 0 Xxxxxxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000 (the "Company"), and Xxxxxxxx X.
Xxxxxxxx, residing at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
(the "Executive"),
WITNESSETH:
WHEREAS, the Company is engaged in the audio book club,
old-time radio and spoken audio digital download businesses; and
WHEREAS, the Company desires to employ the Executive; and
WHEREAS, the Executive is willing to serve the Company on the
terms and conditions herein provided.
NOW, THEREFORE, in consideration of the promises and the
respective covenants and agreements of the parties herein contained and
intending to be legally bound hereby, the parties agree as follows:
1. Recitals. The Whereas clauses recited above are hereby incorporated
by reference as though they were fully set forth herein.
2. Employment. The Company shall employ the Executive, and the
Executive shall serve the Company, on the terms and conditions set forth herein.
3. Term. The term of Executive's employment pursuant to this Agreement
shall commence on April 4, 2005 (the "Effective Date") and shall end on March
31, 2008, if not terminated earlier pursuant to the termination provisions
contained herein (the "Term").
4. Position and Duties. Subject to the terms set forth herein, the
Executive shall be employed by the Company as Chief Operating Officer of the
Company. Her power and authority shall remain subject to the direction and
control of the Chief Executive Officer and the Board of Directors of the
Company. The Executive shall have marketing, public relations, customer service,
merchandising, publisher relations and new product development responsibilities
for the Company and its subsidiaries (including Audio Book Club, Inc., Xxxxx
Xxxxxxx, Inc. and XxxxxXxx.xxx), as well as operational and marketing oversight
of the business and affairs of the Company and its subsidiaries, and any other
businesses that the Company or its subsidiaries may hereafter acquire.
5. Time and Attention. During the Term, the Executive shall devote her
best efforts, except during periods of vacation, sick leave, or other duly
authorized leave of absence, and her full occupational time and attention to the
performance of her duties and to the Company's and its subsidiaries' business
and affairs. The Executive shall work at the Company's offices, currently at 0
Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx; in the event of a relocation of the
Company's offices, the Executive shall not be required, without her consent, to
relocate her residence. It will not be a violation of this Agreement for the
Executive to serve as an officer or director of a cooperative apartment, as a
non-executive director of any business entity, or civic or charitable
organization or committee, to perform speaking engagements, or to manage
personal passive investments, so long as such activities (individually or
collectively) do not conflict or materially interfere with the performance of
the Executive's duties hereunder. The Company agrees that Executive may
participate as a member of the Board of Directors of Web Clients, Synova
Healthcare, Terra Nova Marketing Solutions, Terra Nova Marketing Services and
the Direct Marketing Association.
6. Compensation and Related Matters.
(a) Base Salary. For services rendered pursuant to this
Agreement, the Company shall pay to the Executive an annual base salary of
$215,000 in installments in accordance with the Company's regular payroll
practices, but in no event less frequently than semimonthly, subject to
applicable withholding and other taxes.
(b) Bonus. The Executive will receive a one-time starting
bonus of $50,000, paid as of the Executive's first day of employment under this
Agreement. The Executive will also be eligible to participate in the Company's
discretionary bonus plan that is currently under development. Eligibility for a
bonus will be based upon a set of financial and non-financial objectives set by
the Chief Executive Officer whose recommendation is subject to approval by the
compensation committee of Board of Directors (the "Compensation Committee"). The
rules governing the discretionary bonus plan will be governed by the plan
document for each fiscal year (which ends on December 31). The bonus will be
prorated if the Executive's employment hereunder is terminated other than for
Cause (as defined below). Determinations as to whether the Executive shall
receive any bonus, including the determination as to whether objectives have
been met, shall be made at the sole discretion of the Compensation Committee.
Any bonus awarded will be paid no later than the later of March 15 of the
following year and the tenth (10th) business day after the Company has filed its
Form 10-K for such fiscal year.
(c) Expenses. The Executive shall receive prompt reimbursement
for all reasonable travel and business expenses in connection with services
performed hereunder in accordance with normal Company policy, as the same may be
determined from time to time. The Executive will be allowed to travel business
class for any international business trips. In conjunction with this provision,
the Executive shall receive reimbursement for expenses related to ISP, broadband
Internet connection and cell phone service for business-related usage.
(d) Insurance and Employee Benefits. The Executive shall be
eligible to receive such medical, surgical, hospitalization, disability and life
insurance and retirement benefits as are made available to executive employees
of the Company, subject to the general eligibility and participation provisions
set forth in such plans. The Company reserves the right to adopt, amend or
discontinue any employee benefit, plan, or program in accordance with then
applicable law; provided, however, that if the effect of any such amendment or
discontinuation results is an economic detriment to the Executive as compared to
the benefits in force on the date hereof, the Company shall make cash payments
from time to time in order to provide the Executive with the after-tax
substantial equivalent of the benefits now in force. Any and all cash payments
that may be provided as per the previous sentence shall be made on a monthly
basis and shall in no case exceed the monthly contributions made by Company on
behalf of Executive for any employee benefit, plan, or program that has been
discontinued or amended.
(e) Vacation. The Executive shall receive during each full
year of this Agreement four (4) weeks' (twenty [20] working days') paid
vacation. In explanation and not in limitation of the foregoing sentence, the
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Executive shall be entitled to four weeks' paid vacation at times reasonably
convenient to the Executive and the Company during the first twelve months of
the term of this Agreement. The Executive shall be entitled to carry over any
unused portion of such paid vacation to subsequent years of her employment by
the Company and to be paid for unused vacation upon termination of her
employment for any reason.
(f) Stock Options. On the Effective Date, the Executive shall
be granted options to purchase Eight Hundred Fifty Thousand (850,000) shares of
common stock of the Company, exercisable on or prior to the tenth anniversary of
the Effective Date, pursuant to and in accordance with (and therefore subject to
all terms and conditions of) the Company's 2004 Stock Incentive Plan and a stock
option agreement in form reasonably acceptable to counsel for both parties. Such
options shall be incentive stock options of the type contemplated by I.R.C. ss.
422. The exercise price of the stock options will be equal to the fair market
value (as defined in the said Plan) on the Effective Date. The stock options
will vest according to the following schedule: 40% on the Effective Date; 20% on
the first anniversary of the Effective Date, 20% on the Second Anniversary of
the Effective Date and 20% on the third anniversary of the Effective Date.
7. Non-Competition and Confidentiality Covenant.
(a) (i) During the Term and for a period of two (2) years
immediately following the termination of her employment, whether said
termination is occasioned by the Company, the Executive or a mutual agreement of
the parties for any reason whatsoever, and provided that the Company is not in
material breach of this Agreement, the Executive shall not, for herself or on
behalf of any other person, persons, firm, partnership, corporation or company,
(i) engage, have an interest in, participate in or render any services to any
business (whether as owner, manager, operator, licensor, licensee, lender,
partner, equity holder, joint venturer, employee, consultant or otherwise) in
substantial and direct competition with any business conducted by the Company or
its subsidiaries at the time of termination (including the audio book, old-time
radio and spoken audio digital download businesses and any businesses which are
hereafter acquired by, merged with or transferred to the Company prior to such
termination [collectively, the "Business"]), or (ii) solicit or attempt to
solicit the business or patronage of any person, firm, corporation, company or
partnership, which had previously been an employee of the Company or its
subsidiaries, for the purpose of engaging in the Business. Notwithstanding the
foregoing, nothing herein shall prevent the Executive from owning stock in a
publicly traded corporation whose activities compete with those of the Company
and/or its subsidiaries, provided that such stock holdings are not greater than
five percent (5%) of such corporation.
(ii) Provided the Company is not in material breach of this
Agreement, the Executive shall not, during the Term and for a period of two (2)
years thereafter, directly or indirectly, take any action which constitutes an
interference with or a disruption of any of the Company's business activities
including, the solicitations of the Company's customers or vendors, or persons
listed on the personnel lists of the Company.
(iii) For purposes of clarification, but not of limitation,
the Executive hereby acknowledges and agrees that the provisions of this Section
7(a) shall serve as a prohibition, provided that the Company is not in material
breach of this Agreement, against her, during the period referred to therein,
directly or indirectly, hiring, offering to hire, enticing, soliciting or in any
other manner persuading or attempting to persuade any officer, employee, agent,
lessor, lessee, licensor, licensee or customer of the Company (but only those
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existing during the time of the Executive's employment by the Company, or at the
termination of her employment), to discontinue or alter his, her or its
relationship with the Company. The preceding sentence shall not apply to any
employees of Company who were employees of Terra Nova Marketing Solutions as of
the date of this Agreement.
(iv) The Company and the Executive acknowledge that the
services to be performed by the Executive under this Agreement are unique and
extraordinary and that, as a result of such employment, the Executive shall be
in possession of confidential information relating to the business practices of
the Company. The term "confidential information" shall mean any and all
information (oral or written) relating to the Company or to any of its
affiliates, or to any of their respective activities, other than such
information which (A) is or comes into the public domain (such information not
being deemed to be in the public domain merely because it is embraced by more
general information which is in the public domain) other than as the result of
breach of the provisions of this Section 7, (B) was known to the Executive
without obligation of confidentiality prior to its disclosure by the Company, as
demonstrated by competent documentary evidence in Executive's possession, (C)
which properly becomes available to the Executive, under conditions which do not
restrict further disclosure, from a third-party source who shall not have
obtained such information either directly or indirectly from the Company or its
affiliates, or (D) the Executive is required to disclose under any applicable
laws, regulations or directives of any government agency, tribunal or authority
having jurisdiction in the matter or under subpoena or other process of law. The
Executive shall not, during the Term and thereafter, except as may be required
in the course of the performance of her duties hereunder, directly or
indirectly, use, communicate, disclose or disseminate to any person, firm or
corporation any confidential information regarding the clients, customers or
business practices of the Company acquired by the Executive, without the prior
written consent of the Company; and the Executive also understands that
Executive shall be prohibited from misappropriating any trade secret at any time
during or after the Term.
(v) Upon the termination of the Executive's employment for any
reason whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession of the Executive, including all copies thereof,
shall be promptly returned to the Company.
(b) During the Term and thereafter, the Executive shall not
directly or indirectly disparage the commercial, business or financial
representation of the Company or any of its officers, directors, employees or
affiliates.
(c) (i) The parties hereto hereby acknowledge and agree that
(i) the Company would be irreparably injured in the event of a breach by the
Executive of any of his obligations under this Section 7, (ii) monetary damages
would not be an adequate remedy for any such breach, and (iii) the Company shall
be entitled to injunctive relief, in addition to any other remedy which it may
have, in the event of any such breach.
(ii) Each of the rights and remedies enumerated in Section 7
shall be independent of the other, and shall be severally enforceable, and all
of such rights and remedies shall be in addition to, and not in lieu of, any
other rights and remedies available to the Company under law or in equity.
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(iii) If any provision contained in this Section 7 is found to
be unenforceable by reason of the extent, duration or scope thereof, or
otherwise, then the court making such determination shall have the right to
reduce such extent, duration, scope or other provision and in its reduced form
any such restriction shall thereafter be enforceable as contemplated hereby.
(iv) It is the intent of the parties hereto that the covenants
contained in this Section 7 shall be enforced to the fullest extent permissible
under the laws and public policies of each jurisdiction in which enforcement is
sought (the Executive hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is hereby agreed
that if any of the provisions of this Section 7 shall be adjudicated to be
invalid or unenforceable for any reason whatsoever, said provision shall be
(only with respect to the operation thereof in the particular jurisdiction in
which such adjudication is made) construed by limiting and reducing it so as to
be enforceable to the extent permissible, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of said
provision in any other jurisdiction.
(v) The Executive's obligations under this Section 7 shall
survive the termination of this Agreement for any reason whatsoever.
8. Executive's Representations and Warranties.
(a) No Breach of Contract. Executive represents and warrants
that the execution and delivery of this Agreement by the Executive and the
performance of the Executive's obligations hereunder does not and will not
conflict with or breach any agreement, order or decree to which the Executive is
a party or by which the Executive is bound.
(b) No Conflict of Interest. Executive warrants that Executive
is not, to the best of Executive's knowledge and belief, involved in any
situation that might create, or appear to create, a conflict of interest with
Executive's loyalty to or duties for the Company.
(c) Notification of Materials or Documents from Other
Employees. Executive further warrants that Executive has not brought and will
not bring to the Company or use in the performance of Executive's
responsibilities at the Company any materials or documents of a former employer
that are not generally available to the public, unless Executive has obtained
express written authorization from the former employee for their possession and
use.
(d) Notification of Other Post-Employment Obligations.
Executive also understands that, as part of Executive's employment with the
Company, Executive is not to breach any obligation of confidentiality that
Executive has to former employers, and Executive agrees to honor all such
obligations to former employers during Executive's employment with the Company.
Executive warrants that Executive is subject to no employment agreement or
restrictive covenant preventing full performance of Executive's duties under
this Agreement.
(e) Indemnification for Breach; Survival. In addition to other
remedies which the Company might have for breach of this Agreement, Executive
agrees to indemnify and hold the Company harmless from any breach of the
provisions of this Section 8. The terms of this Section 8 shall survive any
termination of this Agreement.
9. Termination by the Company.
(a) General. The Company shall have the right to terminate the
Executive's employment pursuant to this Agreement with or without Cause at any
time during the term of this Agreement by giving written notice to the
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Executive. The termination shall become effective on the date specified in the
notice. Upon termination by the Company without Cause (as defined below), the
Company shall immediately pay the Executive any reimbursable expenses owed to
her, unused accrued vacation and pro-rata bonus and shall make available to the
Executive continuation of her medical, surgical and hospitalization benefits as
required by COBRA.
(b) Cause. In the event that the Executive is terminated for
Cause, the Company shall pay the Executive any unpaid base salary due Executive
through the date of termination Executive shall not be entitled to any
additional salary, bonus payments, severance, or other compensation.
(c) Without Cause. In the event that the Executive is
terminated without Cause, in addition to paying the Executive through the date
of termination and, if applicable, complying with subparagraph (a) above, the
Company shall pay to the Executive severance compensation equal to six (6)
months of the Employee's Base Salary as of the date of termination (twelve [12]
months of the Executive's Base Salary, if such termination occurs on or after
the first anniversary of this Agreement) payable as set forth in Section 6(a)
above, and any options to purchase common stock of the Company then held by the
Executive shall, as of the date of such termination, be deemed to be fully
vested for all purposes.
(d) Cause. For purposes of this Section 9, "Cause" shall mean
that the Board of Directors has reasonably determined that the Executive has
engaged in any of the following: (i) any material breach of Section 7 of this
Agreement; (ii) any other act or omission which constitutes a material breach
of, or material failure or refusal to perform duties under this Agreement or any
covenant or condition thereof, except in this case of Section 7, after notice of
such and failure to cure the same within fifteen (15) business days; (iii) any
act constituting dishonesty, fraud, immoral or disreputable conduct or breach of
fiduciary duty or other misconduct which is materially harmful (monetarily or
otherwise) to the Company or its reputation; (iv) any conviction of a felony
under applicable law; (v) refusal to abide by or implement a lawful directive of
the Board of Directors after notice of such and failure to cure the same within
fifteen (15) business days; or (vi) gross negligence or gross misconduct of the
Executive in the performance of her duties hereunder.
(e) Mitigation. It shall not be a condition of Executive's
right to obtain any payment or continuation of compensation and benefits under
this Section 9 or under Section 10(b) that the Executive mitigate any damages.
The Company expressly acknowledges that the Executive shall not be required to
mitigate any damages, nor shall the Company at any time raise or assert any
defense based upon the Executive's purported failure to mitigate damages.
10. Termination by the Executive.
(a) General. The Executive may terminate this Agreement at any
time by giving at least thirty (30) days' prior written notice to the Company.
Any such termination shall become effective on the date specified in such
notice. Notwithstanding the foregoing, at the option of the Company, the
termination of Executive's employment may become effective on any date on or
after the date of the notice upon notice to the Executive by the Company and
payment by the Company of the Executive's base salary through the date of such
notice; such termination shall be deemed a voluntary termination by the
Executive and not termination by the Company. Upon termination, the Company
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shall promptly pay the Executive any reimbursable expenses owed to her and make
available to the Executive continuation of her medical, surgical and
hospitalization benefits as required by COBRA.
(b) Good Reason. The Executive may terminate her employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean: (a)
any material failure by the Company to pay the compensation and benefits
provided for in this Agreement or any other material breach by the Company of
any provision of this Agreement, which breach or failure shall continue uncured
for ten (10) days following notice thereof having been given to the Company; (b)
the sale or discontinuation of substantially all of the business of the Company
under the Executive's management; or (c) a Change in Control of the Company (as
hereinafter defined). If the Executive terminates her employment for Good
Reason, then the Executive shall receive the compensation and benefits set forth
in Section 9(c) applicable to termination of the Executive's employment without
Cause.
(c) Change of Control. For purposes of this Agreement, a
"Change of Control" shall be deemed to occur, unless previously consented to in
writing by the Executive, upon (i) the actual acquisition of fifty percent (50%)
or more of the voting securities of the Company by any company or entity or
affiliated group of companies or entities (other than pursuant to a bona fide
underwriting agreement relating to a public distribution of securities of the
Company) not affiliated with the Executive or Satellite Asset Management and/or
any of its affiliates (ii) the completion of a proxy content against the
management for the election of a majority of the Board of Directors of the
Company if the group (other than a group which includes Satellite Asset
Management and/or any of its affiliates) conducting the proxy contest owns, has
or gains the power to vote at least fifty percent (50%) of the voting securities
of the Company, or (iii) a merger or consolidation in which the Company is not
the surviving entity or a sale of all or substantially all of the assets of the
Company.
11. Termination by Death or Disability of the Executive.
(a) Death. In the event of the Executive's death during the
term of this Agreement, all obligations of the parties hereunder shall terminate
immediately, and the Company shall pay to the Executive's legal representatives
the Base Salary (and any earned bonuses) due the Executive through the day on
which Executive's death shall have occurred.
(b) Disability. Subject to applicable state and federal law,
the Company shall at all times have the right, upon written notice to the
Executive, to terminate this Agreement based on the Executive's Disability (as
defined below). Upon any termination pursuant to this Section, the Company shall
pay to the Executive any unpaid Base Salary through the effective date of
termination specified in such notice. The Company shall have no further
liability hereunder (other than for reimbursement for reasonable business
expenses incurred prior to the date of termination, subject, however, to the
provisions hereof). Termination by the Company of the Executive's employment
based on "Disability" shall mean termination because the Executive is unable to
perform the essential functions of Executive's position with or without
accommodation due to a disability (as such term is defined in the Americans with
Disabilities Act) for six (6) consecutive months. This definition shall be
interpreted and applied consistent with the Americans with Disabilities Act, the
Family and Medical Leave Act and other applicable law.
12. Termination by Mutual Consent. If at any time during the term of
this Agreement the parties by mutual consent decide to terminate this Agreement,
they shall do so by separate agreement setting forth the terms and conditions of
such agreement.
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13. Indemnification. The Company shall indemnify the Executive to the
fullest extent permitted by the Florida Business Corporation Act, the federal
securities laws, the Xxxxxxxx-Xxxxx Act of 2003 and the Company's Articles of
Incorporation and By-laws, each as amended from time to time, for all amounts
(including without limitation, judgments, fines, settlement payments, expenses
and attorney's fees) incurred or paid by the Executive in connection with any
action, suit, investigation or proceeding arising out of or relating to the
performance by the Executive of services for, or the acting by the Executive as
a director, officer or employee of the Company, or any other person or
enterprise at the Company's request. If any claim is asserted or other matter
arises with respect to which the Executive believes in good faith the Executive
is entitled to indemnification as contemplated hereby, the Company shall have
the right to assume the defense or investigation of such Claim or matter. The
Executive shall reimburse the Company for any amounts advanced to the Executive,
plus simple interest thereon at the then current Prime Rate as in effect from
time to time, compounded annually, if the Executive shall be found, as finally
judicially determined by a court of competent jurisdiction, not to have been
entitled to indemnification hereunder. To the fullest extent permitted by the
Florida Business Corporation Act, the federal securities laws, the
Xxxxxxxx-Xxxxx Act of 2003 and the Company's Articles of Incorporation and
By-laws, each as amended from time to time, the Company shall advance and pay
the expenses (including attorneys' fees and disbursements) incurred by the
Executive in defending any proceeding in advance of its final disposition. If a
claim by the Executive for indemnification or payment of expenses under this
Section 13 is not paid in full after a written claim therefor has been received
by the Company, the Executive may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim, including reasonable attorneys' fees; in any
such action, the Company shall have the burden of proving that the Executive is
not entitled to the requested indemnification or payment of expenses under
applicable law. This Section 13 shall survive the termination of this Agreement.
14. Governing Law. Except as preempted by federal law, this Agreement
shall be executed, construed and performed in accordance with the laws of the
State of New Jersey without reference to conflict of principles (except that
Section 13 shall be construed and performed in accordance with the Florida
Business Corporation Act). The parties agree that the venue for any dispute
hereunder will be the state or federal courts in New Jersey, and the parties
hereby agree to the exclusive jurisdiction thereof.
15. Binding Agreement. This Agreement and all rights and obligations
hereunder shall inure to the benefit of and be enforceable by the parties and
their personal or legal representatives, executors, administrators, successors,
heirs, distributes, devisees and legatees and assigns, including, without
limitation any successor to the Company whether by merger, consolidation, sale
of stock or otherwise. Neither this Agreement nor any right or obligation
hereunder may be sold, transferred, assigned, or pledged by the Company (except
to an affiliate or successor) or by Executive without the prior written consent
of the other.
16. Notices. For the purpose of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered personally, or by private
overnight courier or mail service, postage prepaid or (unless otherwise
specified) mailed by United States registered or certified mail, return receipt
requested, postage pre-paid, addresses as follows:
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If to the Executive: To her home address as listed in Company
records at the time notice is given, with a
copy in like manner to Xxxxxx X. Xxxxxx,
Esq., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000-0000;
If to the Company: To its corporate headquarters at the time
notice of given. "Attention: Board of
Directors," with a copy in like manner to
Xxxx X. Xxxxx, Esq., 000 Xxxxxxx Xxx Xx 00,
Xxx Xxxx, Xxx Xxxx 00000-0000;
or to such other address as the parties may furnish to each other in writing.
Service of process in any action, proceeding or counterclaim arising hereunder
or with respect to the subject matter hereof may be made in the manner herein
set forth for notices, each party hereby waiving the requirement for personal
service or service by any other means.
17. Waiver and Modification.
(a) No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is in writing signed by
the parties hereto.
(b) No delay, waiver, omission or forbearance (whether by
conduct or otherwise) by any party hereto at any time to exercise any right,
option, duty or power arising out of breach or default by the other party of any
of the terms, conditions or provisions of this Agreement to be performed by such
other party shall constitute a waiver by such party of a waiver of such party's
rights to enforce any right, option or power as against the other party or as to
a subsequent breach or default by such other party, and no explicit waiver shall
constitute a waiver of similar or dissimilar terms, provisions or conditions at
the same time or at any prior or subsequent time.
18. Severability. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provision of this agreement; and, in the event that any one or more
of the words, phrases, sentences, clauses, provisions, sections or articles
contained in this Agreement shall be declared invalid, this Agreement shall be
construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, provision or provisions, section or sections or
article or articles had not bee inserted and the remainder of this Agreement
shall remain in full force and effect.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument. A photocopy or electronic
facsimile of this Agreement or of any signature hereon shall be deemed and
original for all purposes.
20. Entire Agreement. This Agreement contains the entire understanding
of the Company and the Executive with respect to the subject matter hereof. This
Agreement supersedes all prior agreements and understandings, whether written or
oral, between the Executive and the Company with respect to such subject matter,
and there are no restrictions, agreements, promises, warranties or covenants
other than those stated in this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
"COMPANY"
MediaBay, Inc., a Florida Corporation
By /s/ Xxxxxx Xxxxxxx
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Printed Name Xxxxxx Xxxxxxx
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Title Chairman
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"EXECUTIVE"
/s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
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