EXHIBIT 10.1(b)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") made and entered as of September 24,
1999, by and among Media Vision Productions, Inc. (the "Company"), a Delaware
corporation, and Xxxxxxx X. Xxxxxxxx (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 Executive Vice President/Corporate Secretary
and Director. 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 e 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 an annual salary as follows:
(1) for the year ending September 24, 2000, $150,000;
(2) for the year ending September 24, 2001, $165,000;
(3) for the year ending September 24, 2002, $181,500, 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 of 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.
(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 the
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 connection 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 automobile 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 one hundred thousand (100,000) 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) thirty-three thousand, three hundred and thirty-three
(33,333) shares as of April 1, 2000;
(ii) thirty-three thousand, three hundred and thirty-three
(33,333) shares as of September 30, 2000;
(iii) thirty-three thousand, three hundred and thirty-four
(33,334) shares as of March 31, 2001.
Options will be exercisable upon vesting. In the event of a change in control
such that would require the Company to file a Form 8K with the Securities and
Exchange Commission if the Company was a reporting company, all unvested
options will be immediately exercisable. Options may be exercised 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. Eligibility 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 two hundred thousand (200,000) 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 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
DEATH or 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 thirty (30) days
after the 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
may be, 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 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 the 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 Company 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 their successors or
assigns might have for such breach.
(d) SCOPE OF COVENANT. Should the duration, geographical area or
range or proscribed activities contained in subparagraph (a) above be held
unreasonable by any court of competent jurisdiction, then such duration,
geographical area or range of proscribed activities shall be modified to such
degree as to make it or them reasonable and enforceable.
12. INDEMNITY.
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 act, failure
to act, omission or decision by him while performing services as an officer,
director or employee of the Company, other than as 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. Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxx, XX 00000
The foregoing addresses may be changed at any time by written notice given in
the manner herein provided.
(b) INTEGRATION; MODIFICATION. This Agreement constitutes the
entire understanding and agreement between the Company and the Executive
regarding its subject matter and supercedes 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 the case may require, and this Agreement shall be construed and
enforced to the maximum extent permitted by law as if such provision had been
originally incorporated herein as so modified or restricted, or 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 waiver of any such
condition or breach or a 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 the 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.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
