EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT made this 6th day of June 2005, by and between MediaBay,
Inc., a Florida corporation with offices at 0 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx,
Xxx Xxxxxx 00000 (the "Company"), and Xxxxxxx X. Xxxxxx residing at 000 Xxx
Xxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000 (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 June 6, 2005 (the "Effective Date") and shall end on June 6,
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 Executive Officer of
MediaBay, Inc. His power and authority shall be and remain subject to the
direction and control of the Board of Directors and the Chairman of the Company.
The Executive shall have profit and loss responsibility for the Company and its
subsidiaries (including Audio Book Club, Inc., Xxxxx Xxxxxxx, Inc. and
XxxxxXxx.xxx, Inc.) as well as operational and marketing oversight of the
business and affairs of the Company and its subsidiaries, and any other
businesses which the Company or its subsidiaries may acquire.
5. Time and Attention. During the Term, the Executive shall devote his
best efforts, except during periods of vacation, sick leave, or other duly
authorized leave of absence, and his full occupational time and attention to the
performance of his 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 his consent, to
relocate his 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 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.
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
$280,000 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 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 recommended by the compensation
committee of Board of Directors (the "Compensation Committee") and approval by
the Board. 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 Executive
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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 his employment by the Company and to
be paid for unused vacation upon termination of his employment for any reason.
(f) Options and Other Stock-Based Awards. The Executive shall
be entitled to receive stock option grants and other stock-based awards as
recommended by the Compensation Committee of the Board of Directors and approved
by the Board of Directors.
7. Non-Competition and Confidentiality Covenant.
(a) (i) During the Term and for a period of one (1) year
immediately following the termination of his employment, whether said
termination is occasioned by the Company, the Executive or a mutual agreement of
the parties for any reason whatsoever, the Executive shall not, for himself or
on behalf of any other person, persons, firm, partnership, corporation or
company, 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").
(ii) During the Term and for a period of two (2) year
immediately following the termination of his employment, whether said
termination is occasioned by the Company, the Executive or a mutual agreement of
the parties for any reason whatsoever, the Executive shall not, for himself or
on behalf of any other person, persons, firm, partnership, corporation or
company, 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.
(iii) 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.
(iv) 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, against him, 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
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(but only those existing during the time of the Executive's employment by the
Company, or at the termination of his 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.
(v) 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 his 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.
(vi) 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
(A) the Company would be irreparably injured in the event of a breach by the
Executive of any of his obligations under this Section 7, (B) monetary damages
would not be an adequate remedy for any such breach, and (C) 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
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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.
(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.
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(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
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
him, unused accrued vacation and pro-rata bonus and shall make available to the
Executive continuation of his 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 and 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 twelve (12)
months of the Employee's base salary as of the date of termination payable as
set forth in Section 6(a) above, a pro rata portion of any bonus earned through
the date of termination in accordance with Section 6(b) 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) Definition of Cause. For purposes of this Section 9,
"Cause" shall mean that the Board of Directors (by vote of a majority of the
full 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 other
misconduct which is materially harmful 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 his 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.
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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
shall promptly pay the Executive any reimbursable expenses owed to him and make
available to the Executive continuation of his medical, surgical and
hospitalization benefits as required by COBRA.
(b) Good Reason. The Executive may terminate his 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 his employment for Good Reason
within six (6) months following the occurrence of an event giving rise to "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 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. The Executive's employment hereunder shall
terminate upon his 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
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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.
13. Indemnification. The Company shall indemnify and hold harmless the
Executive to the fullest extent permitted by the Florida Business Corporation
Act, the federal securities laws, the Xxxxxxxx-Xxxxx Act of 2002 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 2002 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
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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. This Agreement shall be construed in accordance with
the laws of the State of New Jersey (except that Section 13 shall be governed by
and construed in accordance with the Florida Corporation Business Act) and any
action brought by either party shall be commenced in the state or federal courts
of the State of New Jersey. The Executive and the Company hereby irrevocably and
unconditionally consent to submit to the exclusive jurisdiction of the state or
federal courts of the State of New Jersey for any and all actions, suits or
proceedings arising out of or resulting from or relating to this Agreement and
the transactions contemplated hereby and the parties agree not to commence any
action, suit or proceeding relating thereto except in such courts. The parties
hereby irrevocably and unconditionally waive any objection to the laying of
venue of any such action, suit or proceeding arising out of, resulting from or
relating to this Agreement or the transactions contemplated hereby in such
courts and hereby further irrevocably and unconditionally waive and agree not to
plead or claim in any such court that such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum.
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:
If to the Executive: To his home address as listed in Company records
at the time notice is given;
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.
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(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,
including the employment agreement dated as of January 28, 2004 by and between
the Company and the Executive, other than any option agreement between the
Company and the Executive relating to the grant of stock options by the Company
to the Executive, and there are no restrictions, agreements, promises,
warranties or covenants other than those stated in this Agreement.
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
Title: Chairman
"EXECUTIVE"
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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