EXHIBIT 10.7
EMPLOYMENT AGREEMENT BETWEEN THE REGISTRANT
AND XXXX X. XXXXXXXX, COO/CFO, DATED
DECEMBER 16, 2003
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into this 16th day
of December 2003 by and between New Millennium Media International, Inc., a
Colorado corporation (the "Employer"), and Xxxx X. Xxxxxxxx (hereinafter called
the "Employee").
Whereas, Employee desires to serve as Chief Operating Officer and Chief
Financial Officer of Employer;
Whereas, Employee and Employer would like to structure a mutually beneficial
business relationship whereby Employee serves in the capacities enumerated in
this Agreement in exchange for compensation similarly enumerated;
Whereas, Employee and Employer desire to clarify the nature of their business
relationship and obligations to the other;
Now therefore, in consideration of the premises and mutual covenants set forth
herein, the parties hereto, intending to be legally bound, agree as follows:
1. Employment
1.1 Employment. The Employer hereby agrees to employ the Employee
and the Employee hereby agrees to serve the Employer on the terms and conditions
set forth herein.
1.2 Duties of Employee. Employee shall be employed as Chief
Operating Officer and Chief Financial Officer Employer and shall perform such
duties as shall be reasonably assigned to him by the Chief Executive Officer of
the Employer which are consistent with his office. Employee shall server at the
direction of and be responsible to the Chief Executive Officer of Employer.
Throughout the period of his employment hereunder, the Employee shall: (i)
devote his full business time, attention, knowledge and skills, faithfully,
diligently and professional, to the active performance of his duties and
responsibilities hereunder on behalf of the Employer at a level at least equal
to that generally expected of an employee of a business comparable to that of
the Employer, having the rank and responsibilities of the Employee; (ii) observe
and carry out such rules, regulations, policies, directions and restrictions of
general application to all employees of Employer having a rank comparable to
that of the Employee as may reasonably be established from time to time by the
Employer's Board of Directors, including but not limited to the standard
policies and procedures of the Employer as in effect from time to time; and
(iii) do such traveling as may reasonably be required in connection with the
performance of such duties and responsibilities. The Employee shall devote his
entire productive time, ability, and attention to the business of the Employer
during the term of this contract. The Employee shall not directly or indirectly
render any services of a business, commercial, or professional nature to any
other person or organization, whether for compensation or otherwise, without the
prior written consent of the Board of Directors of the Employer. The Employee
represents that the services to be performed under the terms of this contract
are of a special unique, unusual, extraordinary, and intellectual character that
gives them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law. The Employee therefore
expressly agrees that the Employer, in addition to any other rights or remedies
that the Employer may possess, shall be entitled to injunctive and other
equitable relief to prevent a breach of this contract by the Employee.
2. Term.
2.1 Term. The term of this Agreement, and the employment of the
Employee hereunder, shall commence on January 1, 2004 (the "Commencement Date")
and shall expire on December 31, 2006 (the "Expiration Date") unless sooner
terminated in accordance with the terms and conditions hereof (the "Term").
3. Compensation
3.1 Base Salary. As compensation for services under this Agreement,
the Employee shall receive a salary at the rate of $120,000 per annum for the
first year of employment, $150,000 for the second year of employment and
$180,000 for the third year of employment, except as noted below, payable in
equal monthly installments during the employment term (the "Base Salary").
3.2 Bonuses. During the Term of this Agreement, the Employee shall
be eligible to receive bonuses, at the discretion of the Employer, pursuant to
any bonus plan established by the Employer for bonus compensation for employees
of the Employer having a rank comparable to that of the Employee. Payable on or
before March 31, 2004 the Employer shall pay to the Employee a "sign-on" bonus
in the amount of $10,000. 3.3 Employer Shares.
3.3 Employer Shares.
(a) The Employer shall issue to the Employee on the dates as noted
the following shares (the "Shares") of NMMI Stock: 120,000 shares of NMMI Series
A convertible Preferred stock on June 2004; 120,000 shares of NMMI Series A
convertible Preferred stock on January 2005, 120,000 shares of NMMI Series A
convertible Preferred stock on June 2005 and a warrant to purchase 100,000
shares of NMMI $0.001 common stock at a per share purchase price of $0.25 at any
time before December 1, 2006. In the event of a change in control of NMMI
management through acquisition, merger or reorganization issuance of the shares
of NMMI Series A convertible Preferred stock shall immediately accelerate and be
issued within 30 days from receipt by NMMI of written notice from the Employee
of intent to accelerate issuance of the said shares. on December 2004 ("Common
Stock") of the Employer as provided in this Section 3.3. The Shares shall vest
to the Employee at the time of issuance subject to each of the following:
i. This Agreement shall not have been terminated as of the date such
Shares vest, except for vesting after termination under Sections 3.3 ii or 3.3
vii.
ii. If this Agreement is terminated without cause under Section 5.4,
then any Shares vesting through the second anniversary of the date of this
Agreement shall vest on the date of termination, and all additional Shares shall
be forfeited.
iii. In the event that a Change in Control of the Employer occurs,
then all Shares that vest through the second anniversary of the date of this
Agreement shall vest on the date on which such Change in Control occurs. For
purposes hereof, "Change in Control" shall mean approval by the shareholders of
the Employer of (x) a reorganization, merger, consolidation or other form of
corporate transaction or series of transactions, in each case, with respect to
which
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4.2 Compensation/Benefit Programs. During the term of this
Agreement, the Employee shall be entitled to participate in all medical and
dental insurance plans, and any and all other employee benefit plans as are
presently and hereinafter offered by the Employer to its employees having rank
comparable to that of the Employee, subject to the general eligibility and
participation provisions set forth in such plans.
4.3 Automobile Allowance. Employer shall pay Employee automobile
travel allowance according to the mileage allowance allowed by the Internal
Revenue Code. Payment of such allowance shall constitute all reimbursement to
which Employee shall be entitled for use of an automobile during the employment
of the Employee hereunder.
4.4 Other Benefits. The Employee shall be entitled to 4 weeks of
vacation each calendar year during the term of this Agreement, to be taken at
such times as the Employee and Employer shall mutually determine and provided
that no vacation time shall interfere with the material duties required to be
rendered by the Employer hereunder. Any vacation time not taken by Employee
during any calendar year may not be carried forward into any succeeding calendar
year.
5. Termination
5.1 Termination for Cause. The Employer shall at all times have the
right, upon written notice to the Employee, to terminate the Employee's
employment hereunder, for Cause. For purposes of this Agreement, the term
"Cause" shall mean (i) an action or omission of the Employee which constitutes a
breach of this Agreement which is not cured within 30 days of the Employer's
giving notice of termination to the Employee specifying in reasonable detail the
reasons for termination, (ii) the Employee's committing an act constituting
fraud, theft, conversion, a crime, or breach of fiduciary duty, (iii) gross
negligence in connection with the performance of this Employee's material duties
hereunder, (iv) the material failure or refusal (other than as a result of a
disability) by the Employee to perform his duties hereunder, (v) the Employee's
abuse of drugs or alcohol that adversely affects the performance of the
Employee's duties hereunder; (vi) the Employee's commission of an act of
misconduct, to the extent that in the reasonable judgment of the Employer, the
Employee's credibility and reputation no longer conform to the standards of the
Employer's senior officers; (vii) the Employee not being qualified in the
Employer's reasonable judgment to discharge properly the duties of the
Employee's employment hereunder. Upon any termination pursuant to this Section
5.1, the Employer shall pay to the Employee his Base Salary to the date of
termination. The Employer shall have no further liability hereunder.
5.2 Disability. Subject to applicable law the Employer shall at all
times have the right in its discretion, upon written notice to the Employee, to
terminate the Employee's employment hereunder, if the Employee shall as the
result of mental or physical incapacity, illness or disability, become unable to
perform his obligations hereunder for a total of 120 days in any 180 day period,
or any 90 consecutive days. Upon any termination pursuant to this Section 5.2,
the Employer shall (i) pay to the Employee any unpaid Base Salary though the
effective date of termination specified in such notice, and (ii) pay to the
Employee severance payments equal to three months of the Employee's Base Salary
at the time of the termination of the Employee's employment with the Employer,
payable on the Employer's normal payroll payment schedule. The Employer shall
have no further liability hereunder (other than for (x) reimbursement for
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reasonable business expenses incurred prior to the date of termination, subject,
however to the provisions of Section 4.1, (y) payment of compensation for unused
vacation days that have accumulated during the calendar year in which such
termination occurs, (z) issuances of Shares under Section 3.vii), and (aa)
payment of unpaid benefits that have accrued through the date of termination.
5.3 Death. In the event of the death of the Employee during the Term
of his employment hereunder, the Employer shall pay to the estate of the
deceased Employee any unpaid Base Salary through the Employee's date of death.
The Employer shall have no further liability hereunder (other than for (x)
reimbursement for reasonable business expenses incurred prior to the date of the
Employee's death, subject, however to the provisions of Section 4.1, (y) payment
of compensation for unused vacation days that have accumulated during the
calendar year in which such termination occurs, (z) issuances of Shares under
Section 3.3vii, and (aa) payment of unpaid benefits that have accrued through
the date of termination).
5.4 Termination Without Cause. At any time the Employer shall have
the right to terminate the Employee's employment hereunder by ten days prior
written notice to the Employee. Upon any termination pursuant to this Section
5.4 (that is not a termination under any of Sections 5.1, 5.2, or 5.3), Employer
shall (i) pay to the Employee any unpaid Base Salary through the effective date
of termination specified in such notice, and (ii) continue to pay the Employee's
Base Salary for a period of 12 months following the termination of the
Employee's employment with the Employer, in the manner and at such time as the
Base Salary otherwise would have been payable to the Employee. The Employer
shall have no further liability hereunder (other than for (x) reimbursement for
reasonable business expenses incurred prior to the date of termination, subject,
however, to the provisions of Section 4.1, (y) payment of compensation for
unused vacation days that have accumulated during the calendar year in which
such termination occurs, (z) issuances of Shares under Section 3.3ii (aa)
payment of unpaid benefits that have accrued through the date of termination).
5.5 Resignation. Upon any termination of employment pursuant to this
Section 5, the Employee shall be deemed to have resigned as an officer, and if
he or she was then serving as a director of the Employer, as a director, and if
required by the Board, the Employee hereby agrees to immediately execute a
resignation letter to the Board.
6. Restrictive Covenants.
6.1 Non-Competition. At all times while the Employee is employed by
the Employer and for a 1 year period after the termination of the Employee's
employment with the Employment by the voluntary resignation of the Employee, the
Employee shall not, directly or indirectly, engage in or have any interest in
any sole proprietorship, partnership, corporation or business or any other
person or entity (whether as an employee, officer, director, partner, agent,
security holder, creditor, consultant or otherwise) that directly or indirectly
(or through any affiliated entity) Engages in competition with the Employer;
provided that such provision shall not apply to the Employee's ownership of
Common Stock of the Employer or the acquisition by the Employee, solely as an
investment, of securities of any issuer having securities registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, that
are listed or admitted for trading on any United States national securities
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exchange or that are quoted on the National Association of Securities Dealers
Automated Quotations System, or any similar system of automated dissemination of
quotations of securities prices in common use, so long as the Employee does not
control, acquire a controlling interest in or become a member of a group which
exercises direct or indirect control of, more than five percent of any class of
capital stock of such corporation.
6.2 Nondisclosure. The Employee shall not at any time divulge,
communicate, use to the detriment of the Employer or for the benefit of the
Employee or any other person, or misuse in any way, any Confidential Information
(as hereinafter defined) pertaining to the business of the Employer. Any
Confidential Information or data now or hereafter acquired by the Employee with
respect to the business of the Employer (which shall include, but not be limited
to information concerning the Employer's financial condition, prospects,
technology, customers, suppliers, sources of leads and methods of doing
business) shall be deemed a valuable, special and unique asset of the Employer
that is received by the Employee in confidence and as a fiduciary, and Employee
shall remain a fiduciary to the Employer with respect to all of such
information. For purposes of this Agreement, "Confidential Information" means
information disclosed to the Employee or known by the Employee as a consequence
of or through his employment by the Employer (including information conceived,
originated, discovered or developed by the Employee) prior to or after the date
hereof, and not generally known, about the Employer or its business.
Notwithstanding the foregoing, nothing herein shall be deemed to restrict the
Employee from disclosing Confidential Information to the extent required by law.
This Section 6.2 shall not apply to information that (i) is generally known to
the Employee prior to its disclosure to the Employee: (ii) is or becomes
publicly available other than by unauthorized disclosure by the Employee; or
(iii) is received by the Employee from a third party who is rightfully in
possession of such information free of any obligation to maintain its
confidentiality; or (iv) is known by the Employee prior to his employment by the
Employer.
6.3 Nonsolicitation of Employees and Clients. At all times while the
Employee is employed by the Employer and for a 1 year period after the
termination of the Employee's employment with the Employer for any reason, the
Employee shall not, directly or indirectly, for himself or for any other person,
firm, corporation, partnership, association or other entity (a) employ or
attempt to employ or enter into any contractual arrangement with any employee or
former employee of the Employer, and/or (b) call on or solicit any of the
Employer's actual or targeted prospective customers, suppliers, providers of
products or services to the Employer's actual or targeted prospective customers,
or comparable parties ("Customers/Providers") on behalf of any person or entity
in connection with any business competitive with the business of the Employer as
defined herein, nor shall the Employee make known the names and addresses of
Customers/Providers or any information relating in any manner to the Employer's
trade or business relationships with Customers/Providers, other than in
connection with the performance of Employee's duties under this Agreement;
provided however that this Section 6.3 shall not apply to any solicitation of
users of the Internet generally through a web site that can be accessed by the
public so long as such solicitation does not involve direct contact with
Customers/Providers.
6.4 Ownership of Developments. All copyrights, patents, trade
secrets, or other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes, or works of authorship developed or
created by Employee during the course of performing work for the Employer or its
clients (collectively, the "Work Product") shall belong exclusively to the
Employer and shall, to the extent possible, be considered a work made by the
Employee for hire for the Employer within the meaning of Title 17 of the United
States Code. To the extent the Work Product may not be considered work made by
the Employee for hire for the Employer, the Employee agrees to assign, and
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automatically assigns at the time of creation of the Work Product, without any
requirement of further consideration, any right, title, or interest the Employee
may have in such Work Product. Upon the request of the Employer, the Employee
shall take such further actions, including execution and delivery of instruments
of conveyance, as may be appropriate to give full and proper effect to such
assignment.
6.5 Books and Records. All books, records, and accounts relating in
any manner to the customers or clients of the Employer, whether prepared by the
Employee or otherwise coming into the Employee's possession, shall be the
exclusive property of the Employer and shall be returned immediately to the
Employer on termination of the Employee's employment hereunder or on the
Employer's request at any time.
6.6 Definition of Employer. Solely for purposes of this Section 6,
the term "Employer" also shall include any existing or future subsidiaries of
the Employer that are operating during the time periods described herein and any
other entities that directly or indirectly, through one or more intermediaries,
control, are controlled by or are under common control with the Employer during
the periods described herein.
6.7 Acknowledgment by Employee. The Employee acknowledges and
confirms that (a) the restrictive covenants contained in this Section 6 are
reasonably necessary to protect the legitimate business interests of the
Employer, and (b) the restrictions contained in this Section 6 (including
without limitation the length of the term of the provisions of this Section 6)
are not overbroad, overlong, or unfair and are not the result of overreaching,
duress or coercion of any kind. The Employee further acknowledges and confirms
that his full, uninhibited and faithful observance of each of the covenants
contained in this Section 6 will not cause him any undue hardship, financial or
otherwise, and that enforcement of each of the covenants contained herein will
not impair his ability to obtain employment commensurate with his abilities and
on terms fully acceptable to him or otherwise to obtain income required for the
comfortable support of him and his family and the satisfaction of the needs of
his creditors. The Employee acknowledges and confirms that his special knowledge
of the business of the Employer is such as would cause the Employer serious
injury or loss if he were to use such ability and knowledge to the benefit of a
competitor or were to compete with the Employer in violation of the terms of
this Section 6. The Employee further acknowledges that the restrictions
contained in this Section 6 are intended to b, and shall be, for the benefit of
and shall be enforceable by, the Employer's successors and assigns.
6.8 Reformation by Court. In the event that court of competent
jurisdiction shall determine that any provision of this Section 6 is invalid or
more restrictive than permitted under the governing law of such jurisdiction,
then only as to enforcement of this Section 6 within the jurisdiction of such
court, such provision shall be interpreted and enforced as if it provided for
the maximum restriction permitted under governing law.
6.9 Extension of Time. If the Employees shall be in violation of any
provision of this Section 6, then each time limitation set forth in this Section
6 shall be extended for a period of time equal to the period of time during
which such violation or violations occur. If the Employer seeks injunctive
relief from such violation in any court, then the covenants set forth in this
Section 6 shall be extended for a period of time equal to the tendency of such
proceeding including all appeals by the Employee.
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7. Injunction. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Employee of any of the covenants contained in
Section 6 of this Agreement will cause irreparable harm and damage to the
Employer, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Employee recognizes and hereby acknowledges that the Employer
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in Section 6 of this Agreement by the Employee or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Employer may posses.
8. Mediation. Except to the extent the Employer has the right to seek an
injunction under Section 7 hereof, in the event a dispute arises out of or
relates to this Agreement, or the breach thereof, and if the dispute cannot be
settled through negotiation, the parties hereby agree first to attempt in good
faith to settle the dispute by mediation administered by the American
Arbitration Association under Employment Mediation Rules before resorting to
litigation or some other dispute resolution procedure.
9. Assignment. Neither party shall have the right to assign or delegate
his rights or obligations hereunder, or any portion thereof, to any other
person.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
11. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and, upon
its effectiveness, shall supersede all prior agreements, understandings and
arrangements, both oral and written, between the Employee and the Employer (or
any of its affiliates) with respect to such subject matter. This Agreement may
not b modified in any way unless by a written instrument signed by both the
Employer and the Employee.
12. Notices. All notices required or permitted to be given hereunder shall
be in writing and shall be personally delivered by courier, sent by registered
or certified mail, return receipt requested or sent by confirmed facsimile
transmission addressed as set forth herein. Notices personally delivered, sent
by facsimile or sent by overnight courier shall be deemed given on the date of
delivery and notices mailed in accordance with the foregoing shall be deemed
given upon the earlier of receipt by the addresses, as evidenced by the return
receipt thereof, or three (3) days after deposit in the U.S. mail. Notice shall
be sent (i) if to the Employer, addressed to NMMI, 000 0xx Xxxxxx Xxxxx, Xxxxx
000, Xxxxxx Xxxxxx, Xxxxxxx 00000 and (ii) if to the Employee, to his address as
reflected on the payroll records of the Employer, or to such other address as
either party hereto may from time to time give notice to the other.
13. Benefits; Binding Effect. This Agreement shall be for the benefit of
and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, and successors. 14. Severability. The
invalidity of any one ore more of the words, phrases, sentences, clauses or
sections contained in this Agreement shall not affect the enforceability of the
remaining portions of this Agreement or any part thereof, all of which are
inserted conditionally on their being valid in law, and, in the event that any
one or more of the words, phrases, sentences, clauses or sections 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, or section or sections had not been inserted. If such invalidity is
caused by length of time or size of area, or both, the otherwise invalid
provision will be considered to be reduced to a period or area which would cure
such invalidity.
14. Severability. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and, in the
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event that any one or more of the words, phrases, sentences, clauses or sections
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, or section or sections had not been inserted. If
such invalidity is caused by length of time or size of area, or both, the
otherwise invalid provision will be considered to be reduced to a period or area
which would cure such invalidity.
15. Waivers. The waiver by either party hereto of a breach or violation of
any term or provision of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach or violation.
16. Section Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. No Third Part Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Employer, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
18. Venue. In the event of litigation arising out of this Agreement, venue
shall be in Pinellas County, Florida.
19. Survival. The provisions of this Sections 6-18 hereof shall survive
the termination of this Agreement, as applicable.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
Employer:
New Millennium Media International, Inc.
By: /s/ Xxxx Xxxxxx
------------------------------- Dated this 16th day of December 2003.
Xxxx "JT" Thatch, CEO/President
Employee:
Dated this 16th day of December 2003.
----------------------------------
Xxxx X. Xxxxxxxx
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