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EXHIBIT 10(i)
EMPLOYMENT AGREEMENT
XXXXXXX XXXXXX XXXXXXX
AND MARINEX MULTIMEDIA CORPORATION
AGREEMENT, dated as of the 1st day of June, 1996, among Marinex Multimedia
Corporation, a Nevada corporation, having a place of business at 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Company"), and Xxxxxxx Xxxxxx Xxxxxxx, an
individual residing at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 ("Executive")
WHEREAS, the Company desires to employ Executive as its President; and
WHEREAS, Executive is willing to accept such employment by the Company,
all in accordance with provisions hereinafter set forth; and
NOW, THEREFORE, in consideration of the promises and mutual
representations, covenants and agreements set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Term: The term of this Agreement shall be for a period of five (5)
years commencing effective on the date hereof, and terminating on the fifth
anniversary date hereof subject to earlier termination as provided herein or
unless extended by mutual consent of the parties.
2. Employment: (A) Subject to the terms and conditions and for the
compensation hereinafter set forth, the Company hereby agrees to employ
Executive for and during the term of this Agreement. Executive is hereby
employed by the Company as its President with primary responsibility for the
general management of the Corporation's affairs and its day to day operations,
with the requisite authority to so manage. The Company shall not require
Executive to be employed in any location other than metropolitan New York City
unless he consents in writing to such location.
(B) During the term of this Agreement, Executive shall be furnished with
office space and facilities commensurate with his position and adequate for the
performance of his duties; he shall be provided with the prerequisites
customarily associated with the position of President of the Company.
(C) Executive understands that the Company may obtain key man life and/or
disability insurance on his person of which the Company will be the
beneficiary. Executive agrees to sign all necessary insurance and to make
himself available for any medical examination reasonably required by such
insurer.
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3. Compensation:
(A) Salary: During the term of this Agreement, the Company agrees to pay
Executive, and Executive agrees to accept, an annual salary of not less than
Two Hundred Forty Thousand Dollars ($240,000) per year, payable in accordance
with the Company's policies, for all services rendered by Executive hereunder.
Executive may waive any portion of his salary. Any such waiver shall be
retroactive only and shall not be prospective.
(B) Bonus: As additional compensation, the Company may pay Executive a periodic
bonus as determined by the Board of Directors.
(C) Increases: The annual salary is subject to periodic increases at the
discretion of the Board of Directors with such increases to take effect no
later than on each anniversary date of this Agreement and which shall not be
less than ten percent (10%) each year.
(D) Performance Compensation: Executive will receive ten percent (10%) of the
Company's annual profits, payable within four (4) months of the end of each of
the Company's fiscal years ending within the term of this Agreement. For the
purposes of this Agreement "Profits" shall be an amount equal to the Company's
net income before income taxes for the employment year in question, determined
in accordance with generally accepted accounting principles plus any amounts
deducted by the Company during the relevant year for depreciation of property
and equipment or interest expense, less any nonrecurring or infrequent items
(e.g. sale of property or equipment) which increased net income before income
taxes, plus any nonrecurring or infrequent items which increased net income
before income taxes.
4. Expenses: The Company shall reimburse Executive for all reasonable and
actual business expenses incurred by him in connection with his service to the
Company, upon submission by him of appropriate vouchers and expense account
reports, including but not limited to automobile which automobile expenses
shall not exceed the sum of Thirty Five Thousand Dollars ($35,000) per year.
5. Benefits:
(A) Insurance: In addition to the salary and bonus to be paid to Executive
hereunder, the Company shall maintain family medical and dental insurance, life
insurance in the amount of not less than Two Hundred Fifty Thousand Dollars
($250,000) on the life of Executive and for which executive shall designate the
beneficiary(ies), and long term disability providing monthly disability
insurance disability benefits to Executive of not less than Fifty Four Thousand
Dollars ($54,000). Executive and his dependents shall be entitled to
participate in such other benefits as are extended to active executive
employees of the Company and their dependents including but not limited to
pension, retirement, profit-sharing, 401(k), stock option, bonus and incentive
plans, group insurance,
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hospitalization, medical or other benefits made available by the Company to its
employees generally.
(B) Vacation: Executive shall be entitled to take up to six (6) weeks of paid
vacation annually at a time mutually convenient to the Company and Executive in
any one year shell accumulate to his benefit in the succeeding years and, to
the extent not previously used as of the termination of Executive's period of
active employment, Executive shall be paid in cash in lieu of such unused
vacation.
6. Restricted Covenants: (A) Executive recognizes and acknowledges that
the Company, through the expenditure of considerable time and money, has
developed and will continue to develop in the future, information concerning
customers, clients, marketing, business and operational methods of the Company
and its customers or clients, contracts, financial or other data, technical
data or any other confidential or proprietary information possessed, owned or
used by the Company, and that the same are confidential and proprietary, and
are "confidential information" of the Company. In consideration of his
employment by the Company hereunder, Executive agrees that he will not, without
the consent of the Board, make any disclosure of confidential information now
or hereafter possessed by the Company to any person, partnership, corporation
or entity either during or after the term hereunder, except to employees of the
Company or its subsidiaries or affiliates, as may be necessary in the regular
course of the Company's business and except as may be required pursuant to any
court order, judgment or decision from any court of competent jurisdiction. The
foregoing shall not apply to information which is in the public domain on the
date hereof; which, after it is disclosed to Executive by the Company is
published or becomes part of the public domain through no fault of Executive;
which is known to Executive prior to disclosure thereof to him by the Company
as evidenced by his written records; or, after Executive is no longer employed
by the Company, which is thereafter disclosed to Executive in good faith by a
third party who was not under any obligation of confidence or secrecy to the
Company with respect to such information at the time of disclosure to him. The
provisions of this Section shall continue in full force and effect
notwithstanding any termination of Executive's employment under this Agreement
for a period of six (6) months following said termination of employment.
(B) Except in the ordinary course of his duties as President, or in the
furtherance of the business of the Company, during the period from the date of
this Agreement until twelve (12) months following the date on which his
employment with the Company is terminated, Executive will not, directly or
indirectly:
(i) persuade or attempt to persuade any person or entity which is or was
a customer, client or supplier of the Company on the date on which Executive's
employment with the Company is terminated to cease doing business with the
Company, or to reduce the amount of business it does with the company;
(ii) solicit for himself or any other person or entity other than the
Company the business of any person or entity which is a customer or client of
the Company, or was its
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customer or client within six (6) months prior to the termination of his
employment by the Company, with respect to the clearing or execution or
securities;
(iii) persuade or attempt to persuade any employee of the Company, or any
individual who was an employee of Company during the six (6) month period prior
to the termination of this Agreement, to leave Company's employ, or to become
employed by any person or entity other than the Company; or
(iv) engage in a business that directly competes with the properties of
the Company in those geographic areas in which said properties are offered.
Provided however, that the foregoing shall not prohibit Executive from
creating, developing, marketing and turning to an economic gain any original
entertainment properties.
(C) Executive acknowledges that the restrictive covenants (the
"Restrictive Covenants") contained in this Section 6 are a condition of his
employment and are reasonable and valid in geographical and temporal scope and
in all other respects. If any court determines that any of the Restrictive
Covenants, or any part of any of the Restrictive Covenants, is invalid or
unenforceable, the remainder of the Restrictive Covenants and parts thereof
shall not thereby be affected and shall be given full effect, without regard to
the invalid portion. If any court determines that any of the Restrictive
Covenants, or any pert thereof, is invalid or unenforceable because of the
geographic or temporal scope of such provision, such court shall have the power
to reduce the geographic or temporal scope of such provision, as the case may
be, and, in its reduced form, such provision shall then be enforceable.
(D) If Executive breaches, or threatens to breach, any of the Restrictive
Covenants, the Company, in addition to and not in lieu of any other rights and
remedies it may have at law or in equity, shall have the right to injunctive
relief; it being acknowledged and agreed to by Executive that any such breach
or threatened breach would cause irreparable and continuing injury to the
Company and that money damages would not provide an adequate remedy to the
Company.
7. Termination:
(A) Death: In the event of Executive's death during the term of his
employment, Executive's designated beneficiary, or in the absence of such
beneficiary designation, his estate shall be entitled to payment of Executive's
salary from date of death to the entitled to payment of Executive's salary from
date of death to the expiration of one (1) year thereafter. In addition,
Executive's beneficiary and/or dependents shall be entitled, for the same one
year period to continuation, at the Company's expense, of such benefits as are
than being provided to them under Section 5(A) hereof, and any additional
benefits as may be provided to dependents of the Company's executive officers
in accordance with the terms of the Company's policies and practices. In
addition, any options granted to Executive which have not, by the terms of the
options, vested shall be
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deemed to have vested as of the date of his death and shall thereafter be
exercisable by Executive's beneficiary or estate for the maximum period of time
allowed for exercise thereof under the terms of the option.
(B) Disability:
(a) In the event Executive, by reason of physical or mental incapacity,
shall be disabled for a period of at least twelve (12) consecutive months, the
Company shall have the option at any time thereafter, to terminated Executive's
employment hereunder for disability. Such termination will be effective thirty
(30) days after the Board gives written notice of such termination to
Executive, unless Executive shall have returned to the performance of his
duties prior to the effective date of the notice. All obligations of the
Company hereunder shall cease upon the effectiveness of such termination,
provided that such termination shall not affect or impair any rights Executive
may have under any policy of long term disability insurance or benefits then
maintained on his behalf by the Company. In addition, for a period of one (1)
year following termination of Executive's employment for disability, Executive
and his dependents, as the case may be, shall continue to receive the benefits
set forth under subparagraph 5(A) hereof, as well as such benefits as are
extended to the Company's active executive employees and their dependents
during such period. Any options granted to Executive which have not, by the
terms of the option, vested shall be deemed to have vested at the termination
and shall thereafter be exercisable by Executive, his beneficiary, conservator
or estate, as applicable, for the maximum period of time allowed for exercise
thereof under the terms of the option.
(b) "Incapacity" as used herein shall mean the inability of Executive due
to physical or mental illness, injury or disease to substantially perform his
normal duties as Chief Executive Officer. Executive's salary as provided for
hereunder shall continue to be paid during any period of incapacity prior to
and including the date on which Executive's employment is terminated for
disability.
(C) By The Company For Cause:
(a) The Company shall have the right, before the expiration of the term of
this Agreement, to terminate this Agreement and to discharge Executive for
cause (hereinafter "Cause"). For the purposes of this Agreement, the term
"Cause" shall mean Executive's conviction of a felony related to the Company's
business.
(b) If the Company elects to terminate Executive's employment for Cause
under (C)(a) above, such termination shall be effective fifteen (15) days
after the Company gives written notice of such termination to Executive.
(D) By Executive for Reason:
Executive shall have the right to terminate his employment at any time for
"good reason" (herein designated and referred to as "Reason"). The term Reason
shall mean (i)
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the failure to elect or appoint, or re-elect or re-appoint, Executive to, or
removal or improperly attempted removal of Executive from, his position as
President or superior positions with the Company, except in connection with the
proper termination of Executive's employment by reason of Cause, Death or
Disability; (ii) a reduction in Executive's overall compensation other than
this discretionary bonus under Section 3(B) above or an adverse change in the
nature or scope of the authorities, powers, function or duties normally
attached to Executive's position with the Company; (iii) the Company's failure
or refusal to perform any obligations required to be performed in accordance
with this Agreement after a reasonable notice and an opportunity to cure same;
and (iv) a Change in Control of the Company, as defined herein, occurs.
(E) Severance: (a) In the event Executive's employment hereunder shall
be terminated by Executive for Reason or by the Company for other than Death or
Disability: (1) Executive shall thereupon receive as severance pay in a lump
sum the amount of salary and bonuses which Executive would have received if the
terms of this agreement were for a period of fifteen years; and (2) Executive's
(and his dependents') participation in any and all life, disability, medical
and dental insurance plans shall be continued, or equivalent benefits provided
to him or them by the Company, at no cost to him or them, for a period of two
years from the termination; and (3) any options granted to Executive which have
not, by the terms of the options, vested shall be deemed to have vested at the
termination, and shall thereafter be exercisable for the maximum period of time
allowed for exercise thereof under the terms of the option; and (b) an election
by Executive to terminate his employment under the provisions of this paragraph
shall not be deemed a voluntary termination of employment of Executive for the
purpose of interrupting the provisions of any of the Company's employee benefit
plans, programs or policies.
(F) Resignation: In the event Executive resigns without Reason prior to
the expiration hereof, he shall receive any unpaid fixed salary through such
resignation date, and such benefits to which he is entitled by law.
(G) Extension of Benefits: Any extension of benefits following the
termination of employment provided for herein shall be deemed to be in addition
to, and not in lieu of, any period for benefits continuation provided for by
law at the Company's , Executive's or his dependents' expense.
(H) Change in Control: For purposes hereof, a Change in Control shall be
deemed to have occurred (i) if there has occurred a "change in control" as such
term is used in Item 1(a) of Form 8-K promulgated under the Securities Exchange
Act of 1934, as amended at the date hereof ("Exchange Act"), (ii) if there has
occurred a change in control as the term "control" is defined in Rule 12b-2
promulgated under the Exchange Act, or (iii) when a majority of the directors
elected at any annual or special meeting of stockholders are not individuals
nominated by Executive and Xxxxxxxx Xxxxx.
8. Indemnification: Company hereby indemnifies and holds Executive
harmless to the extent of any and all claims, suits, proceedings, damages,
losses or
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liabilities incurred by Executive and arising out of any acts or decisions done
or made in the authorized scope of his employment hereunder without regard to
whether or not such claims, etc. arise during or after the Executive's
employment with the Company. Company hereby agrees to pay all expenses,
including any and all attorney's fees, actually incurred by Executive in
connection with the investigation of any such matter, the defense of any such
action, suit or proceeding and in connection with any appeal thereon including
the cost of court settlements. Nothing contained herein shall entitle Executive
to indemnification by Company in excess of that permitted under applicable law.
9. Waiver: No delay or omission to exercise any right, power or remedy
accruing to either party hereto shall impair any such right, power or remedy or
shall be construed to be a waiver of or an acquiescence to any breach hereof.
No waiver of any breach hereof shall be deemed to be a waiver of any other
breach hereof theretofore or thereafter occurring. Any waiver of any provision
hereof shall be effective only to the extent specifically set forth in the
applicable writing. All remedies afforded to either party under this Agreement,
by law or otherwise, shall be cumulative and not alternative and shall not
preclude assertion by either party of any other rights or the seeking of any
other rights or remedies against the other party.
10. Governing Law: The validity of this Agreement or of any of the
provisions hereof shall be determined under and according to the laws of the
State of New York, and this Agreement and its provisions shall be construed
according to the laws of the State of New York, without regard to the
principles of conflicts of law.
11. Notice: Any notices, demands or other communications required or
permitted to be given in connection with this Agreement shall be given in
writing, shall be transmitted to the appropriate party by hand delivery, by
certified mail, return receipt requested, postage prepaid or by telegram, telex
or electronic means and shall be addressed to a party at such party's address
shown on the first page hereof. A party may designate by written notice given
to the other parties a new address to which any notice, demand or other
communication hereunder shall thereafter be given. Each notice, demand or other
communication transmitted in the manner described in this Section 11 shall be
deemed to have been given and received for all purposes at the time it shall
have been (I) delivered to the addressee as indicated by the return receipt (if
transmitted by mail), the affidavit of the messenger (if transmitted by hand
delivery) or the answer back or call back (if transmitted by telegram, telefax
or other electronic means) or (ii) presented for delivery during normal
business hours, if such delivery shall not have been accepted for any reason.
12. Assignments: This Agreement shall be binding upon and inure to the
benefit of the parties and each of their respective successors, assigns, heirs
and legal representatives, provided, however, that Executive may not assign or
delegate his obligation, responsibilities and duties hereunder except as
permitted by the Company's by-laws, custom, practice, policies or the Board of
Directors. Company may not assign this Agreement without the prior written
consent of Executive.
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13. Miscellaneous: This Agreement contains the entire understanding
between the parties hereto and supersedes all other oral and written agreements
or understandings between them with respect to the subject matter hereof. No
modification or addition hereto or waiver or cancellation of any provision
shall be valid except by a writing signed by the party to be charges therewith.
14. Obligations of a Continuing Nature: It is expressly understood and
agreed that the covenants, agreements and restrictions undertaken by or imposed
on Executive and the Company hereunder, which are stated to exist or continue
after termination of Executive's employment with the Company, shall exist and
continue irrespective of the method or circumstances of such termination for
the respective periods of time set forth herein.
15. Severability: The parties agree that if any of the covenants,
agreement or restrictions contained herein is held to be invalid by any court
of competent jurisdiction, such holding will not invalidate any of the other
covenants, agreements and/or restrictions herein contained and such invalid
provisions shall be severable so that the invalidity of any such provision
shall not invalidate any others.
16. Venue; Jurisdiction: The Company and Executive hereby agree that any
action, proceeding or claim against either of them arising out of, or relative
in any way to this Agreement shall be brought and enforced in any of the courts
of the State of New York in New York County, New York, or the United States
District Court for the Southern District of New York, and irrevocable submits
to such jurisdiction. The Company and Executive hereby waive any objection to
such jurisdiction and that such courts represent an inconvenient forum. Any
process or summons to be served upon the Company or Executive may be served by
transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to the Company and to Executive at their
respective addresses set forth on the first page hereof or such other address
as one party may so notify the other party. Such mailing shall be deemed
personal service and shall be legal and binding upon the Company and Executive
in any action, proceeding or claim.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
EXECUTIVE
By: /s/Xxxxxxx Xxxxxx Xxxxxxx
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MARINEX MULTIMEDIA CORPORATON
By: /s/ Xxxx Xxxxxx
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/s/ Xxxx Xxxxxx
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