EXHIBIT 10.1(a)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") made and entered as of September 24,
1999, by and among Media Vision Productions, Inc. (the "Company"), a Deleware
corporation, and Xxxx X. Xxxxxxx
(the "Executive").
BACKGROUND
The parties desire to enter into an employment agreement and to set forth
herein the terms and conditions of the Executive's employment by the Company.
Accordingly, in consideration of the mutual covenants and agreements set forth
herein and the mutual benefits to be derived here from, and intending to be
legally bound hereby, the Company and the Executive agree as follows:
1. EMPLOYMENT.
(a) DUTIES. The Company shall employ the Executive, on the terms set
forth in this Agreement, as Chief Executive Officer/Chairman of the Board of
Directors. The Executive accepts such employment with the Company and shall
perform and fulfill such duties as are reasonable and necessary for such
position, subject to the Board of Directors of the Company (the "Board"), for
the Company and its subsidiaries, devoting his best efforts to the performance
and fulfillment of his duties and to the advancement of the interests of the
Company, subject only to the direction, approval, control and directives of the
Board.
(b) PLACE OF PERFORMANCE. In connection with his employment by the
Company, the Executive shall be based in the West Palm Beach, FL metropolitan
area, except for required travel on Company business.
2. TERM.
The Executive's employment under this Agreement shall be for a five-year
term (the "Term") commencing as of September 24, 1999 (the "Commencement Date")
and shall continue uninterrupted for the Term. Each year, on the anniversary
date of the Commencement Date, the Term shall be extended for an additional
year, the effect of which is intended by the parties to be that there shall
always be a full five-year Term outstanding under this Agreement.
3. COMPENSATION.
(a) BASE SALARY. During the Term, the Executive shall be entitled to
receive annual salary as follows:
(1) for the year ending September 24, 2000, $240,000;
(2) for the year ending September 24, 2001, $264,000;
(3) for the year ending September 24, 2002, $290,400, which shall be the
base salary (the "Base Salary") for the remaining Term, payable in
installments at such times as the Company customarily pays its other
senior executive employees (but in any event no less often than
monthly).
(b) Each year thereafter, for the Term, the Executive shall receive an
increase in Base Salary of at least ten percent (10%)(but which may be greater
in the determination of the Compensation Committee) of the current Base Salary,
which increase shall be added to the then-current Base Salary to become the new
Base Salary for the purposes for this Agreement.
(c) In the event of a change in control such as would require the Company
to file a Form 8-K with the Securities and Exchange Commission if the Company
was a reporting company, the Executive shall be entitled to a lump sum payment
equal to the Base Salary, with minimum ten percent (10%) increases each year,
for the remaining Term, plus a lump sum bonus equal to five times the largest
bonus paid to Executive under this Agreement.
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(d) BONUS. Executive shall receive an annual bonus in accordance with a
Company Bonus Plan adopted by the Compensation Committee of the Board.
4. HEALTH INSURANCE AND OTHER BENEFITS.
During the Term, the Executive shall be entitled to all employee benefits
offered by the Company to its senior executives and key management employees,
including, without limitation, all pension, profit sharing, retirement, stock
option, salary continuation, deferred compensation, disability insurance,
hospitalization insurance, major medical insurance, medical reimbursement,
survivor income, life insurance or any other benefit plan or arrangement
established and maintained by the Company, subject to the rules and regulations
then in effect regarding participation therein. In addition, the Company shall
procure and fund for Executive a life insurance policy in the amount of one
million dollars ($1,000,000), with a beneficiary to be named by Executive.
5. REIMBURSEMENT OF EXPENSES.
The Executive shall be reimbursed for all items of travel, entertainment and
miscellaneous expenses which the Executive reasonably incurs in connections with
the performance of his duties hereunder, provided that the Executive submit to
the Company such statements and other evidence supporting said expenses as the
Company may reasonably require.
6. AUTOMOBILE ALLOWANCE.
The Company shall pay Executive a monthly autombile allowance of seven
hundred dollars ($700) for the first year of this Agreement, eight hundred
dollars ($800) per month for the second year and one thousand dollars ($1,000)
per month thereafter, subject to increase by the Board.
7. OPTIONS: GRANT OF SHARES.
(a) Upon the executive of this Agreement, the Company will issue to
Executive options to purchase at least two hundred thousand (200,000) shares
(the "Shares") of the Company's common stock $0.08 par value, exercisable at the
price of $0.625 per share. These options shall expire seven years from the date
hereof and shall vest as follows:
(i) sixty-six thousand, six hundred and sixty-six (66,666) shares as of
April 1, 2000;
(ii) sixty-six thousand, six hundred and sixty-six (66,666) shares as of
September 30, 2000;
(iii) sixty-six thousand, six hundred and sixty-eight (66,668) shares as
of March 31, 2000;
Options will be exercisable upon vesting. In the event of a change in control
such that would require the Company to file a Form 8-K with the Securities and
Exchange Commission if the Company was a reporting company, all unvested options
will be immediately exercisable. Options may be execised by the Executive giving
the Company a note equal to the exercise price of the options exercised, which
shall bear interest at a floating rate equal to the Federal Funds Rate published
in the Wall Street Journal as adjusted from time to time.
(b) The Executive will also be eligible to participate in the 1999 Stock
Option Plan when, as and if approved by the Board. Eligibilty in no way
creates an obligation on the part of the Company to issue options to the
Executive, which shall be in the sole and absolute discretion of the
Compensation Committee of the Board.
(c) Upon execution of this Agreement, Executive shall receive a grant of
three million (3,000,000) shares of the Company's common stock.
8. VACATIONS.
The Executive shall be entitled to the number of paid vacation days in each
calendar year determined by the Company from time to time for its senior
executive officers, but not less than four (4) weeks in any
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calendar year (prorated in any calendar year during which the Executive is
employed hereunder for less than the entire year in accordance with the number
of days in such calendar year during which he is so employed). The Executive
shall also be entitled to all paid holidays given by the Company to its senior
executive officers.
9. TERMINATION OF EMPLOYMENT.
(a) DEATH OF TOTAL DISABILITY. In the event of the death of the Executive
during the Term, this Agreement shall terminate as of the date of the
Executive's death. Salary for the remaining Term shall be paid to Executive's
beneficiary or estate, and all health insurance benefits for Executive's family
shall be continued for at least two years following the Executive's death. In
the event of the Total Disability (as that term is defined below) of the
Executive for any consecutive twelve months during the Term, the Company shall
have the right to terminate this Agreement by giving the Executive thirty (30)
days' prior written notice thereof, and upon the expiration of such thirty (30)
day period, the Executive's employment under this Agreement shall terminate. In
the event of such termination, the salary for the remaining Term shall be paid
to Executive. If the Executive shall resume his duties within (30) days after
receipt of such a notice of termination, this Agreement shall continue in full
force and effect. Upon termination of this Agreement under this Section 9 (a),
the Company shall have no further obligations or liabilities under this
Agreement, except to pay to the Executive's estate or the Executive, as the case
maybe, the portion of salary that remains unpaid for the Term, including minimum
increases and continuation of benefits.
The term "Total Disability", as used herein, shall mean a mental or physical
condition which in the reasonable opinion of an independent medical doctor
selected by the Company renders the Executive unable or incompetent to carry out
the material duties and responsibilities of the Executive under this Agreement
at the time the disabling condition was incurred. If the Executive is covered
under any policy of disability insurance under paragraph 4, the definition of
Total Disability hereunder shall be the definition of that term in such policy.
10. NO MITIGATION.
The Executive shall not be required to mitigate the amount of any payment or
benefit provided for in this Agreement by seeking by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Agreement be
reduced by any compensation earned by the Executive as a result of his
employment by another employer.
11. RESTRICTIVE COVENANT.
(a) COMPETITION. Executive undertakes and agrees that until two years
after termination of this Agreement, he will not compete, directly or
indirectly, or participate as a director, officer, employee, consultant agent,
consultant, representative or otherwise, or as a stockholder, partner or joint
venturer, or have any direct or indirect financial interest, including, without
limitation, the interest of a creditor, in any business competing directly or
indirectly with the business of the Company or any of its subsidiaries.
(b) TRADE SECRETS. During the Term hereof and after termination for any
reason, Executive shall not disclose, divulge, copy or otherwise use any trade
secret of the Company or its subsidiaries, it being acknowledged that all such
information and materials complied or obtained by or disclosed to Executive
while employed by the Company or its subsidiaries hereunder or otherwise are
confidential and the exclusive property of the Comapny and its subsidiaries.
(c) INJUNCTIVE RELIEF. The parties hereto agree that the remedy at law for
any breach of the provisions of this paragraph 11 will be inadequate and that
the Company or any of its subsidiaries or other successors or assigns shall be
entitled to injunctive relief without bond. Such injunctive relief shall not be
exclusive, but shall be in addition to any other rights and remedies Company or
any of its subsidiaries or thier successor or assigns might have for such
breach.
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(d) SCOPE OF COVENANT. Should the duration, goegraphical area or range or
proscribed activities contained in subparagraph (a) above be held unreasonable
by any court of competent jurisdiction, then such duration, geographical areaa
of range of proscribed activities shall be modified to such degree as to make it
or them reasonable and enforceable.
12. INDEMITY.
The Company shall indemnify and hold the Executive harmless to the maximum
extent permitted by law against any claim, action, demand, loss, damage, cost,
expense, liability or penalty arising out of any acti, failure to act, omission
or decision by him while performing services as an officer, director or employee
of the Company, other than act, omission or decision by the Executive which is
not in good faith and is without his reasonable belief that same is, or was, in
the best interests of the Company. To the extent permitted by law, the Company
shall pay all attorney's fees, expenses and costs actually incurred by the
Executive in connection with the defense of any of the claims referenced herein.
13. MISCELLANEOUS.
(a) NOTICES. Any notice, demand or communication required or permitted
under this Agreement shall be in writing and shall either be hand-delivered to
the other party or mailed to the addresses set forth below by registered or
certified mail, return receipt requested, or sent by overnight express mail or
courier or facsimile to such address, if a party has a facsimile machine. Notice
shall be deemed to have been given and received when so hand-delivered or after
three business days when so deposited in the U.S. Mail, or when transmitted and
received by facsimile or sent by express mail properly addressed to the other
party.
The addresses are:
To the Company:
Media Vision Productions Inc.
000 X. Xxxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, XX 00000
To the Executive:
Xx. Xxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
The foregoing addresses may be changed at any time by written notice given in
the manner herein provided.
(b) INTEGRATION; MODIFICATION. This Agreement constitues the entire
understanding and agreement between the Company and the executive regarding its
subject matter and supersedes all prior negotiations and agreements, whether
oral or written, between them with respect to its subject matter. This Agreement
may not be modified except by a written agreement signed by the Executive and a
duly authorized officer of the Company.
(c) ENFORCEABILITY. If any provision of this Agreement shall be invalid or
unenforceable, in whole or in part, such provision shall be deemed to be
modified or restricted to the extent and in the manner necessary to render the
same valid and enforceable, or shall be deemed excises from this Agreement, as
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the case may require, and this Agreement shall be construed and enforced to the
maximum extent permitted by law as if such provision had not been originally
incorporated herein, as the case may be.
(d) BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties, including and their respective heirs, executors,
successors and assigns, except that this Agreement may not be assigned by the
Executive.
(e) WAIVER OF BREACH. No waiver by either party of any condition or of the
breach by the other of any term or covenant contained in this Agreement, whether
by conduct or otherwise, in any one or more instances shall be deemed or
construed as a further or continuing waiger of any such condition or breach or
waiver of any other condition, or the breach of any other term or covenant set
forth in this Agreement. Moreover, the failure of either party to exercise any
right hereunder shall not bar the later exercise thereof.
(f) GOVERNING LAW AND INTERPRETATION. This Agreement shall be governed by
the internal laws of Delaware. Each of the parties agrees that he or it, as the
case may be, shall deal fairly and in good faith with the other party in
performing, observing and complying with the covenants, promises, duties,
obligations, terms and conditions to be performed, observed or complied with by
him or it, as the case may be, hereunder; and that this Agreement shall be
interpreted, construed and enforced in accordance with the foregoing covenant
notwithstanding any law to the contrary.
(g) HEADINGS. The headings of the various sections and paragraphs have
been included herein for convenience only and shall not be considered in
interpreting this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by the Executive
and on behalf of the Company by its duly authorized officer(s) on the date first
above written.
MEDIA VISION PRODUCTIONS, INC.
/s/ XXXXXXX XXXXXXXX
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Xxxxxxx Xxxxxxxx
By:
/s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
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