EMPLOYMENT AGREEMENT (Mark Mroczkowski)
Exhibit
10.1
(Xxxx
Xxxxxxxxxxx)
This EMPLOYMENT AGREEMENT (this
“Agreement”) is made effective as of the 30th day of September, 2010 (the
“Effective Date”) by and among XXXX X. XXXXXXXXXXX, an individual (“Employee”)
and MEDIANET GROUP TECHNOLOGIES, INC. a Nevada corporation
(“MediaNet”) and its various subsidiaries identified on page 6 hereto; with
reference to the following recitals:
A. Employee
is engaged by MediaNet, pursuant to a consulting agreement dated March 19, 2010
(the “MediaNet Agreement”).
B. Employee
and MediaNet agree that is in the best interest of the parties to enter into an
employment agreement with MediaNet.
NOW, THEREFORE, in consideration of the
foregoing, the mutual covenants and agreements set forth herein, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each of Employee and MediaNet hereby agree as
follows:
1. Employment. MediaNet
hereby employs Employee and hereby affirms the employment of Employee as the
Chief Financial Officer of MediaNet and Employee hereby affirms, renews and
accepts such employment, for the “Term” (as defined in Section 3 below), upon
the terms and conditions set forth herein. This Agreement supersedes and
replaces the MediaNet Agreement in its entirety.
2. Duties. During
the Term, Employee shall serve MediaNet faithfully, diligently and to the best
of his ability, under the direction of the Board of Directors of
MediaNet. Employee shall render such services during the Term at the
Corporation’s principal place of business, as MediaNet may from time to time
reasonably require of him, and shall devote that portion of his business time as
defined in Section 5 below to the performance thereof. Employee shall
have those duties and powers as generally pertain to the respective office,
subject to the control of the Board of Directors of MediaNet. The
precise services and duties that Employee is obligated to perform hereunder may
from time to time be changed, amended, extended or curtailed by the Board of
Directors of MediaNet.
3. Term. The
“Term” of this Agreement shall commence on the Effective Date and continue
thereafter for a term of two (2) years, as may be extended or earlier terminated
pursuant to the terms and conditions of this Agreement. The Term of
this Agreement shall automatically renew for successive one (1) year periods
unless, within sixty (60) days of the expiration of the then existing Term,
MediaNet or Employee provides written notice to the other party that it elects
not to renew the Term. Upon delivery of such notice, this Agreement
shall continue until expiration of the Term, whereupon this Agreement shall
terminate.
4. Compensation.
4.1 Salary. MediaNet
shall pay to Employee a total minimum annual salary of One Hundred and Sixty-Two
Thousand Dollars ($162,000) (the “Minimum Salary”), payable in equal
installments at the end of such regular payroll accounting periods as are
established by the Corporation, or in such other installments upon which the
parties hereto shall mutually agree. The Minimum Salary shall be paid
to Employee by the Corporation, subject to the terms set out
below. In addition, MediaNet may pay additional salary from time to
time, and award bonuses in cash, stock or stock options or other property and
services, as MediaNet may determine in its sole discretion or pursuant to
separate agreements with Employee. The Employee is hereby granted the options
set forth on the Non-Qualified Stock Option Agreement attached hereto as Annex
A.
4.2 Benefits. During
the Term, Employee shall be entitled to participate in all medical and other
employee benefit plans, including vacation, sick leave, retirement accounts,
profit sharing, stock option plans, stock appreciation rights, and other
employee benefits, provided by MediaNet to employees similarly
situated.
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4.3 Expense
Reimbursement. MediaNet shall reimburse Employee for
reasonable and necessary expenses incurred by him on behalf of MediaNet in the
performance of his duties hereunder during the Term, provided that such expenses
are adequately documented in accordance with MediaNet’s then customary
policies.
5. Other
Employment. Employee shall devote as much of his business and
professional time and effort, attention, knowledge, and skill to the management,
supervision and direction of MediaNet’s business and affairs as is necessary to
faithfully and diligently further the business and best interests of
MediaNet. Subject to his fiduciary duties, any applicable laws and
Sections 7 and 8 hereof, Employee may, during the term hereof, be interested
directly or indirectly, in any manner, as partner, officer, director,
stockholder, advisor, employee or in any other capacity in any other
business. Subject to his fiduciary duties, any applicable laws
and Sections 7 and 8 hereof, nothing herein contained shall prevent or limit the
right of Employee to invest any of his surplus funds in the capital stock or
other securities of any corporation, company or limited partnership, or whose
stock or securities are publicly owned or are regularly traded on any public
exchange; nor shall anything herein contained prevent Employee from investing or
limit Employee’s right to invest his surplus funds in real
estate. Subject to his fiduciary duties, any applicable laws and
Sections 7 and 8 hereof, nothing herein shall prevent Employee from serving in a
volunteer capacity as officer, director, or advisor for professional
organizations with which he is affiliated. MediaNet hereby
acknowledges and agrees that Employee may, in good faith, use his discretion in
resolving any conflicts between MediaNet and its subsidiaries and/or among
MediaNet’s subsidiaries, and Employee shall be entitled to rely upon the
direction of the Corporation and the Corporation's Board of Directors to resolve
any such conflicts of interest. The Employee acknowledges and agrees
that he has a fiduciary duty of loyalty to the MediaNet, and that he will not
engage in any activity during the term of this Agreement, which will or could,
in any significant way, harm the business, business interests or reputation of
MediaNet.
6. Indemnification.
6.1 Third Party
Actions. MediaNet hereby indemnifies Employee in the event
that Employee is a party, or is threatened to be made a party, to any proceeding
(other than an proceeding by or in the right of any MediaNet to procure a
judgment in MediaNet’s favor) by reason of Employee’s status as an
officer, director, agent or employee of MediaNet, against expenses,
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with such proceeding if Employee acted in good faith and
in a manner that Employee reasonably believed to be in MediaNet’s
best interests and, in the case of a criminal proceeding, Employee had no
reasonable cause to believe Employee’s conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not, of itself, create
any presumption that (a) Employee did not act in good faith or in a manner which
Employee reasonably believed to be in MediaNet’s best interests or (b) Employee
had no reasonable cause to believe that Employee’s conduct was
unlawful.
6.2 Successful Defense By
Employee. To the extent that Employee has been successful on
the merits in defense of any proceeding referred to in Sections 6.1, or in
defense of any claim, issue, or matter therein, MediaNet shall indemnify
Employee against expenses actually and reasonably incurred by Employee in
connection therewith.
6.3 Advances. Expenses
incurred in defending any proceeding shall be advanced by the Related Companies
before the final disposition of such proceeding upon receipt of an undertaking
by or on behalf of Employee to repay such amounts if it shall be determined
ultimately that Employee is not entitled to be indemnified as authorized in this
Section 7.
6.4 Other Contractual
Rights. The indemnification provided by this Section 6 shall
be deemed cumulative, and not exclusive, of any other rights to which Employee
may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such
office. Nothing in this section shall affect any right to
indemnification to which Employee may be entitled by contract or
otherwise.
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6.5 Insurance. To
the extent available at commercially reasonable rates and limits, MediaNet shall
collectively purchase and maintain insurance on behalf of Employee insuring
against any liability asserted against or incurred by Employee in any capacity
or arising out of Employee’s status as such, whether or not MediaNet has the
power to indemnify Employee against that liability under the provisions of this
Section 6.
6.6 Survival. The
rights provided by this Section 6 shall survive the expiration or earlier
termination of this Agreement pursuant hereto and shall inure to the benefit of
Employee’ heirs, executors, and administrators.
6.7 Amendment. Any
amendment, repeal, or modification of MediaNet's articles or bylaws shall not
adversely affect Employee’s indemnification rights or privileges existing at the
time of such amendment, repeal, or modification.
6.8 Settlements. MediaNet
shall not be liable to indemnify Employee under this Section 6 for (i) any
amounts paid in settlement of any action or claim effected without MediaNet’s
written consent, which consent shall not be unreasonably withheld, or (ii) any
judicial award, if MediaNet was not given a reasonable and timely opportunity to
participate, at MediaNet’s expense, in the defense of such action.
6.9 Subrogation. In
the event of payment under this Section 6, MediaNet shall be subrogated to the
extent of such payment to all Employee’s rights of recovery; and Employee shall
execute all papers required and shall do everything necessary or appropriate to
secure such rights, including the execution of any documents necessary or
appropriate to MediaNet effectively bringing suit to enforce such
rights.
6.10 No Duplication Of
Payments. MediaNet shall not be liable under this Section 6 to
make any payment in connection with any claim made against Employee to the
extent Employee has otherwise actually received payment, whether under a policy
of insurance, agreement, vote, or otherwise, of any amount which is otherwise
subject to indemnification under this Section 6.
6.11 Proceedings And
Expenses. For the purposes of this Section 6, “proceeding” means any
threatened, pending, or completed action or proceeding, whether civil, criminal,
administrative, or investigative; and “expenses” includes, without limitation,
attorney fees and any expenses of establishing a right to indemnification under
this Section 6.
7. Confidential Information/
Inventions.
7.1 Employee
shall not, in any manner, for any reasons, either directly or indirectly,
divulge or communicate to any person, firm or corporation, any confidential
information concerning any matters not generally known in MediaNet's industry or
otherwise made public by MediaNet which affects or relates to MediaNet's
business, finances, marketing and/ or operations, research, development,
inventions, products, designs, plans, procedures, or other data (collectively,
“Confidential Information”) except in the ordinary course of business or as
required by applicable law. Without regard to whether any item of
Confidential Information is deemed or considered confidential, material, or
important, the parties hereto stipulate that as between them, to the extent such
item is not generally known in the MediaNet's industry, such item is important,
material, and confidential and affects the successful conduct of MediaNet’s
business and good will, and that any breach of the terms of this Section 7.1
shall be a material and incurable breach of this Agreement.
7.2 Employee
further agrees that all documents and materials furnished to Employee by
MediaNet and relating to MediaNet’s business or prospective business are and
shall remain the exclusive property of MediaNet as the case may
be. Employee shall deliver all such documents and materials to
MediaNet upon demand therefore and in any event upon expiration or earlier
termination of this Agreement. Any payment of sums due and owing to
Employee by MediaNet upon such expiration or earlier termination shall be
conditioned upon returning all such documents and materials, and Employee
expressly authorizes MediaNet to withhold any payments due and owing pending
return of such documents and materials.
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7.3 All
ideas, inventions, and other developments or improvements conceived or reduced
to practice by Employee, alone or with others, during the term of this
Agreement, whether or not during working hours, that are within the scope of the
business of MediaNet or that relate to or result from any of MediaNet's work or
projects or the services provided by Employee to MediaNet pursuant to this
Agreement, shall be the exclusive property of MediaNet. Employee
agrees to assist MediaNet during the term, at MediaNet’s expense, to obtain
patents and copyrights on any such ideas, inventions, writings, and other
developments, and agrees to execute all documents necessary to obtain such
patents and copyrights in the name of MediaNet.
8. Covenant Not to
Compete. During the term of this Agreement, Employee shall not
engage in any of the following competitive activities: (a) engaging
directly or indirectly in any business or activity substantially similar to any
business or activity engaged in by MediaNet as of the date of this
Agreement; (b) soliciting or taking away any employee, business associate,
agent, representative, contractor, supplier, vendor, customer, franchisee,
lender or investor of MediaNet, or attempting to so solicit or
take away; (c) interfering with any contractual or other relationship
between MediaNet and any employee, business associate, agent,
representative, contractor, supplier, vendor, customer, franchisee, lender or
investor; or (d) using, for the benefit of any person or entity other
than MediaNet, any Confidential Information of
MediaNet. The foregoing covenant prohibiting competitive activities
shall survive the termination of this Agreement and shall extend, and shall
remain enforceable against Employee, for the period of one (1) year following
the date this Agreement is terminated. In addition, during the
two-year period following such expiration or earlier termination, Employee shall
not make or permit the making of any negative statement of any kind concerning
MediaNet.
9. Survival. Employee
agrees that the provisions of Sections 7 and 8 shall survive expiration or
earlier termination of this Agreement for any reasons, whether voluntary or
involuntary, with or without cause, and shall remain in full force and effect
thereafter.
10. Injunctive
Relief. Employee acknowledges and agrees that the covenants
and obligations of Employee set forth in Sections 7 and 8 with respect to
non-competition, non-solicitation, confidentiality and the MediaNet's property
relate to special, unique and extraordinary matters and that a violation of any
of the terms of such covenants and obligations will cause MediaNet irreparable
injury for which adequate remedies are not available at
law. Therefore, Employee agrees that MediaNet shall be entitled to an
injunction, restraining order or such other equitable relief (without the
requirement to post bond) as a court of competent jurisdiction may deem
necessary or appropriate to restrain Employee from committing any violation of
the covenants and obligations referred to in this Section 10. These
injunctive remedies are cumulative and in addition to any other rights and
remedies MediaNet may have at law or in equity.
11. Termination
11.1 Termination by
Employee. Employee may terminate this Agreement without cause
at any time and for any reason upon ninety (90) days notice to
MediaNet. For purposes of this Agreement, the term “good reason” for
termination by Employee shall be (a) a material breach by MediaNet of
any material covenant or obligation hereunder; or (b) the voluntary or
involuntary dissolution of MediaNet. The written notice
given hereunder by Employee to MediaNet shall specify in reasonable detail the
“good reason” for termination, and, in the case of good reason, such termination
notice shall not be effective until ninety (90) days after MediaNet’s receipt of
such notice, during which time MediaNet shall have the right to respond to
Employee’s notice and cure the breach or other event giving rise to the
termination.
11.2 Termination by
MediaNet. MediaNet may terminate its employment of Employee
under this Agreement without cause at any time and for any reason upon ninety
(90) days notice to Employee. MediaNet may terminate its employment
of Employee under this Agreement for cause at any time by written notice to
Employee. For purposes of this Agreement, the term “cause” for
termination by MediaNet shall be (a) a conviction of or plea of guilty or nolo contendere by Employee
to a felony; (b) the consistent refusal by Employee to perform his material
duties and obligations hereunder; or (c) Employee’s willful and intentional
misconduct in the performance of his material duties and obligations as set
forth from time to time in the employee manual. The written notice
given hereunder by MediaNet to Employee shall specify in reasonable detail the
cause for termination. In the case of a termination for the cause
described in (a) above, such termination shall be effective upon receipt of the
written notice. In the case of the causes described in (b) and (c)
above, such termination shall, at the MediaNet’s sole discretion, be effective
(i) upon receipt of the written notice or (ii) ninety (90) days after Employee’s
receipt of such notice, during which time Employee shall have the right to
respond to MediaNet's notice and cure the breach or other event giving rise to
the termination.
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11.3 Severance. Upon
a termination of this Agreement without good reason by Employee or with cause by
MediaNet, MediaNet shall immediately pay to Employee all accrued and unpaid
compensation as of the date of such termination. Upon a termination
of this Agreement with good reason by Employee or without cause by MediaNet,
MediaNet shall immediately pay to Employee all accrued and unpaid compensation
as of the date of such termination plus the Severance Payment. The accrued
compensation due and payable at termination shall bear interest at the lesser of
eight percent (8%) per annum or the maximum rate permitted by law until such
amounts are paid in full. The “Severance Payment” shall equal the total amount
of salary payable to Employee under Section 4.1 of this Agreement from the date
of such termination until six months after termination payable in equal
installments at the end of such regular payroll accounting periods as are
established by the Corporation, or in such other installments upon which the
parties hereto shall mutually agree. Upon such a termination with
good reason by Employee or without cause by MediaNet, any unvested stock options
then held by such Employee will vest immediately and options held by such
Employee will remain exercisable for a period of ninety (90) days from the date
of such termination, but in no event later than the expiration date of the
option.
12. Termination Upon
Death. If Employee dies during the term of this Agreement,
this Agreement shall terminate, except that Employee’s legal representatives
shall be entitled to receive any earned but unpaid compensation due hereunder.
Any unvested stock options then held by the Employee will vest immediately and
options held by the Employee, or his estate, will remain exercisable for three
(3) years from the date of the Employee’s death or termination due to
Disability, but in no event later than the expiration date of the
option.
13. Termination Upon
Disability. If, during the term of this Agreement, Employee
suffers and continues to suffer from a “Disability” (as defined below),
then MediaNet may terminate this Agreement by delivering to Employee
sixty (60) calendar days prior written notice of termination based on such
Disability, setting forth with specificity the nature of such Disability and the
determination of Disability by MediaNet. For the purposes of this
Agreement, “Disability” means Employee’s inability, with reasonable
accommodation, to substantially perform Employee’s duties, services and
obligations under this Agreement due to physical or mental illness or other
disability for a continuous, uninterrupted period of ninety (90) calendar days.
Any unvested stock options then held by the Employee will vest immediately and
options held by the Employee, or his estate, will remain exercisable for three
(3) years from the date of the Employee’s termination due to Disability, but in
no event later than the expiration date of the option.
14. Personnel Policies,
Conditions, And Benefits. Except as otherwise provided herein,
Employee’s employment shall be subject to the personnel policies and benefit
plans which apply generally to MediaNet's employees as the same may be
interpreted, adopted, revised or deleted from time to time, during the term of
this Agreement, by MediaNet in its sole discretion. During
the term hereof, Employee shall receive the following:
14.1 Vacation. Employee
shall be entitled to vacation during each year of the term at the rate of six
(6) weeks per year; provided that no vacation shall accrue from year to year
during the term.
15. Beneficiaries of
Agreement. This Agreement shall inure to the benefit of
MediaNet and any affiliates, successors, assigns, parent corporations,
subsidiaries, and/or purchasers of MediaNet as they now or shall exist while
this Agreement is in effect.
16. No
Waiver. No failure by either party to declare a default based
on any breach by the other party of any obligation under this Agreement, or
failure of such party to act quickly with regard thereto, shall be considered to
be a waiver of any such obligation, or of any future breach.
17. Modification. No
waiver or modification of this Agreement or of any covenant, condition, or
limitation herein contained shall be valid unless in writing and duly executed
by the parties to be charged therewith.
18. Choice Of
Law/Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without regard to
any conflict-of-laws principles. MediaNet and Employee hereby
consent to personal jurisdiction before all courts in the County of Orange,
State of Florida, and hereby acknowledge and agree that Orange County, Florida
is and shall be the most proper forum to bring a complaint before a court of
law.
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19. Entire
Agreement. This Agreement embodies the whole agreement between
the parties hereto and there are no inducements, promises, terms, conditions, or
obligations made or entered into by MediaNet or Employee other than contained
herein.
20. Severability. All
agreements and covenants contained herein are severable, and in the event any of
them, with the exception of those contained in Sections 1 and 4 hereof, shall be
held to be invalid by any competent court, this Agreement shall be interpreted
as if such invalid agreements or covenants were not contained
herein.
21. Headings. The
headings contained herein are for the convenience of reference and are not to be
used in interpreting this Agreement.
IN WITNESS WHEREOF, this Agreement has
been duly executed by the parties hereto as of the date first above
written.
MEDIANET
GROUP TECHNOLOGIES, INC. AND SUBSIDIARIES
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MediaNet
Group Technologies, Inc.
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DUBLICOM
LIMITED
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a
Nevada corporation
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a
Cyprus corporation
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By
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By
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Lenox
Logistik und Service GmbH
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DUBLI
NETWORK LIMITED
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Gesellschaft
mit beschränkter Haftung
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a
British Virgin Island corporation
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By
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By
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Employee
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an
Individual
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Xxxx
Xxxxxxxxxxx
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