Exhibit 99.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 5th day of October, 2004, by
and between 110 MEDIA GROUP, INC., a Delaware corporation (the "Company") and
Xxxx Xxxxxx, (the "Executive").
In consideration of the mutual promises contained in this Agreement and
other good and valuable consideration, the parties hereto make the following
agreement, intending to be legally bound hereby:
1. Term. The term of this Agreement and Executive's employment under this
Agreement shall commence as of October 1, 2004 and, unless sooner terminated as
provided herein, shall continue for an initial term of three (3) years.
Thereafter this Agreement shall automatically renew for additional one year
periods unless either party provides written notice of non-renewal to the other
party at least 60 days prior to the end of the then-current term.
2. Duties.
(a) The Company agrees to employ Executive and Executive agrees to be
employed by the Company for the Term of Employment stated in section 1
hereof, subject to the terms and conditions herein provided. Executive
shall serve as the Vice President of Business Development.
(b) During and throughout his Term of Employment pursuant to this
Agreement, Executive shall devote his full working time and best
efforts using his customary work habits and work patterns to promote
the interests of the Company. Executive shall assist in the management
of the Company's website designers, programmers, marketing personnel
and systems architects, develop new internet opportunities and improve
the Company's internet ventures and to assist the Company in building a
larger customer base and increased revenues and to perform such other
services as may reasonably be assigned to him from time to time by the
Company's Chief Executive Officer ("CEO"), as well as its Board of
Directors ("Board"); provided, Executive, shall not be required to
reside in the New York metropolitan area.
3. Compensation.
(a) During and throughout his Term of Employment pursuant to this
Agreement, the Company shall pay, and Executive shall accept an annual
salary of not less than One Hundred Fifty Thousand Dollars
($150,000.00) subject to the required withholding for applicable state
and Federal taxes, for all services provided pursuant to the terms of
this Agreement payable on a weekly basis. During such time from the
commencement of this agreement until the earlier of (i) the capital
funding of the Company in an amount of at least Three Hundred
Seventy-Five Thousand Dollars ($375,000) net to the Company, or (ii)
the Company's achievement of gross monthly revenues of $60,000 for two
consecutive months, the Company shall pay Executive Six Thousand
Dollars ($6,000) and accrue Six Thousand Five Hundred Dollars ($6,500).
At the time the Company receives the capital funding or achieves
monthly gross revenues of $60,000 for two consecutive months, all
accrued and unpaid salary due Executive shall be paid by the Company
and the Company shall then pay Executive's full salary of Twelve
Thousand Five Hundred Dollars ($12,500) per month.
(b) During and throughout his Term of Employment pursuant to this
Agreement, Executive shall be entitled to participate in any and all
employee welfare, pension or other benefit plans and programs
maintained on or after the effective date of this Agreement for
employees of the Company, including, without limitation, health, life
and other insurance programs. In addition, the Company shall reimburse
Executive for all of his reasonable out-of-pocket expenses incurred in
connection with the performance of his duties hereunder, provided
Executive provides the Company with detailed expense reports and
receipts in accordance with then existing Company policy.
(c) During and throughout his Term of Employment pursuant to this
Agreement, Executive shall not receive any earned compensation from any
other enterprises offering services similar to those offered by the
Company.
(d) During and throughout his Term of Employment pursuant to this
Agreement, Executive shall be entitled to receive a quarterly bonus
equal to 10% of the Company's Net Operating Income. In the event the
Company achieves Net Operating Income in excess of Two Hundred Fifty
Thousand Dollars ($250,000) for any fiscal quarter the bonus shall be
increased to 15% of the Company's Net Operating Income. For purposes of
this Agreement Net Operating Income shall be defined as income before
interest and income taxes but after depreciation produced by operating
assets. Such bonus shall be paid in arrears no later than 60 days after
the end of the Company's last fiscal quarter.
(e) Upon the execution of this Agreement, the Company shall issue the
Executive Two Million Five Hundred Thousand (2,500,000) shares of its
common stock. The shares shall be subject to cancellation based on the
following schedule in the event this Agreement is terminated by (i) the
Executive voluntarily and without cause, (ii) mutual agreement between
the Executive and the Company, or (iii) by the Company For Cause
(defined below).
Shares subject to cancellation:
During first 6 months: 1,875,000
From 6 months to 12 months: 1,250,000
From 12 months to 18 months: 625,000
In addition, the shares of common stock issuable to the Executive shall
have "piggy-back" registration rights. The Company's obligation to
register such shares are more fully described in the Registration
Rights Agreement dated on equal date of this Agreement and attached
hereto as Exhibit 1.
4. Termination. Executive's employment under this Agreement may be
terminated prior to the expiration of the Term of Employment as follows:
(a) By the Company "For Cause" without prior notice for:
(i) the commission by Executive of any act of fraud upon or
an act evidencing dishonesty toward the Company;
(ii) indictment of Executive for any felony or misdemeanor
involving moral turpitude;
(iii) the wrongful misappropriation by Executive of any funds,
property or rights of the Company;
(iv) Habitual absenteeism, bad faith, fraud, refusal to
perform his duties, gross negligence or willful
misconduct on the part of Executive in the performance
of his duties as an employee of the Company, provided
that the Company has given written notice of and an
opportunity of not less than 30 days to cure such
breach, which notice describes in detail the breach
asserted and stating that it constitutes notice pursuant
to this Section 4(a)(iv), provided that no such notice
or opportunity needs to be given if (x) in the judgment
of the Company's Board of Directors, such conduct is
habitual or would unnecessarily or unreasonably expose
the Company to undue risk or harm or (y) one previous
notice had already been given under this section; or
(v) a voluntary resignation by Executive or willful failure
or continuing inability of Executive to carry out
assigned job duties and responsibilities which the
parties agree shall constitute a voluntary resignation.
(b) By reason of Executive's death.
(c) Upon the termination of the employment of Executive pursuant to the
provisions of subsections (a) or (b) above, the Term of Employment
shall expire and he, or his estate in the event of his death, shall be
entitled only to receive two (2) weeks of compensation for services
rendered prior to such termination and the Company shall have no
further obligation to compensate Executive for services performed
hereunder including bonus payments.
(d) If Executive is terminated other than pursuant to subsections (a)
or (b) above, the Company will continue to pay and provide compensation
and benefits as set forth in paragraph 3 above or for a period of 12
months, whichever period is greater.
5. Non-Disclosure of Confidential Information. In addition to any common
law restrictions that may apply, Executive covenants and agrees that he shall
not during his employment hereunder, nor at anytime thereafter, disclose any
confidential, secret or proprietary information or knowledge or any trade
secrets (collectively, the "Confidential Information") for his own purposes or
for the benefit of any person, firm, corporation or other entity (except the
Company) under any circumstances. For purposes of this Section 5, to the fullest
extent permitted by applicable law, as amended from time to time, "Confidential
Information" shall include: (a) any information, process, procedure, formula or
improvement which has not been published or disseminated or otherwise become a
matter of general public knowledge; (b) the whole or any portion of any business
plan, financial information, purchasing data, supply data, accounting data or
other financial information which has not been published or disseminated or
otherwise become a matter of general public knowledge; (c) the whole or any part
of any marketing information, marketing strategies, sales records, customer
lists, prices, profit margins, sales projections or other sales information
which has not been published or disseminated or otherwise become a matter of
general knowledge; and (d) trade secrets as defined by the laws of the state of
New York. Executive acknowledges and agrees that all information failing within
the above definition or otherwise related thereto shall be presumed to be
Confidential Information and that Confidential Information shall also include
any other information which Executive has a reasonable basis to believe to be
Confidential Information.
6. Property of the Company. Executive covenants and agrees that all
memoranda, notes, lists, files, reports, materials, computer disks, programs,
records and other documents (and all copies, recordings, abstracts, synopses,
notes or other representations of any of the foregoing, whether produced
manually or electronically) made or compiled by Executive or made available to
Executive relating to the Confidential Information or to the business of the
Company, shall remain the sole and exclusive property of the Company and shall
be delivered to the Company by Executive promptly upon the termination of
Executive's employment with the Company or at any other time on request.
7. Irreparable Harm. Executive acknowledges and agrees that a breach or
threatened breach of the obligations regarding confidentiality set forth in
Section 5 shall result in irreparable and continuing damage to the Company for
which there is no adequate remedy at law. Executive further agrees that in the
event of any breach or threatened breach of such obligations, the Company
(including its successors and assigns) shall be entitled to a temporary
restraining order, and to preliminary and permanent injunctive relief
restraining such breach or threatened breach and such other and further relief
as may be proper against Executive and all persons acting through or for
Executive, including partners, agents, servants and employees.
8. Waiver. Failure to insist upon a strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of any such
term, covenant or condition, nor shall any such failure at any one time or more
times be deemed a waiver or relinquishment at any other time or times of any
right under the terms, covenants or conditions hereof.
9. Benefit. This Agreement shall inure to the benefit of and be binding
upon the Company, its successors and assigns, including, but not limited to, any
company which may acquire all or substantially all of the Company's assets or
business or into which the Company may be consolidated or merged or by which the
Company's business may be held or prosecuted. The rights of Executive may not be
assigned or otherwise transferred nor may the obligations of Executive be
delegated. This Agreement shall be binding upon the heirs and personal
representatives of Executive insofar as such heirs and personal representatives
shall come into possession by any means whatsoever of any Confidential
Information. It is further agreed that for purposes of this Agreement; "Company"
shall mean 110 Media Group, Inc. and all of its subsidiaries and affiliates.
10. Governing Law. This Agreement is executed and delivered in, and shall
be governed, enforced and interpreted in accordance with the laws of, the State
of New York without regard to the principles of conflict of laws.
11. Severability. Except as otherwise provided on the contrary herein,
each section, paragraph, part, term and/or provision of this Agreement shall be
considered severable, and if, for any reason, any section, paragraph, part, term
and/or provision herein is determined to be invalid or contrary to, or in
conflict with, any existing or future law or regulation of a court or agency
having valid jurisdiction, such shall not impair the operation of, or otherwise
affect, the other sections, paragraphs, parts, terms and/or provisions of this
Agreement as may remain otherwise intelligible, and the latter will continue to
be given full force and effect and bind the parties hereto.
12. Company's Right Recover Costs. Executive undertakes and agrees that if
he breaches or threatens to breach any provision of this Agreement, he shall be
liable for any costs and expenses, including without limitation, any attorney
fees incurred by the Company in enforcing its rights under this Agreement.
13. Executive's Right to Recover Costs. The Company undertakes and agrees
that if it breaches or threatens to breach any provision of this Agreement, it
shall be liable for any costs and expenses, including without limitation, any
attorney fees incurred by Executive in enforcing his rights under this
Agreement.
14. Survival. Executive and the Company agree and acknowledge that all of
Executive's agreements, covenants, obligations and duties under Sections 5 and 6
of this Agreement, and all of the Company's rights and remedies in connection
therewith, shall survive the expiration or termination of the Term of
Employment, regardless of the cause therefor.
15. Notices. All notices, requests, demands and other communications
required or permitted to be given or made under this Agreement shall be given or
made in writing by registered or certified mail, return receipt requested, or by
telex and will be deemed to have been given or made on the date following
receipt of attempted delivery at the following locations:
To the Company:
110 Media Group, Inc.
00 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
To the Executive:
Xxxx Xxxxxx
0 Xxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
or such other address or person as may be designated in writing by one party to
the other party in accordance with these notice provisions.
16. Complete Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter contained herein and
supersedes all prior and contemporaneous oral or written agreements,.
representations and understandings of the parties. No supplement, modification
or amendment of this Agreement shall be binding unless executed in writing by
both parties hereto. No waiver or change in this Agreement shall be binding
unless executed in writing by the party making the waiver or affected by the
change.
17. Captions. The captions contained in this Agreement are included
only for convenience of reference and do not define, limit, explain or modify
this Agreement or its interpretation, construction or meaning and are in no way
to be construed as a part of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer and Executive has set his
hand, both as of the day and year first above written.
110 MEDIA GROUP, INC.:
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, President
Executive:
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
