THIS EMPLOYMENT CONTRACT, dated as of September 15, 2006, is between INTEGRATED MEDIA HOLDINGS, INC. (“Company”), a Delaware corporation,, and Paul D Hamm, an individual, residing at 700 High Hampton Run, Alpharetta, GA 30328 (“Executive”). The...
EXHIBIT
10.3
THIS
EMPLOYMENT CONTRACT,
dated as
of September 15, 2006, is between INTEGRATED MEDIA HOLDINGS, INC. (“Company”), a
Delaware corporation,, and Xxxx X Xxxx, an individual, residing at 000
Xxxx
Xxxxxxx Xxx, Xxxxxxxxxx, XX 00000 (“Executive”).
The
Company desires to engage Executive to perform executive management services
for
the Company, any present or future parent, subsidiary, or affiliate of
the
Company, and (subject to Section 11) any successor or assign of any of
them (the
“Corporations”), and Executive desires to perform such services, on the terms
and conditions hereinafter set forth.
Term
The
Company agrees to employ Executive, and Executive agrees to serve, on
the terms
and conditions of this Agreement for a period commencing on September
15, 2006
(the “Commencement Date”) and ending 2 years from the commencement date, or such
shorter period as may be provided for herein. The period during which
Executive
is employed hereunder is hereinafter referred to as the “Employment
Period.”
Duties
and Services
During
the Employment Period, Executive shall be employed as President of the
Company
and shall also perform duties and services in the capacity of Chief Executive
officer of the Company. In the absence of a separate Chief Financial
Officer
(“CFO”) being hired by the Company, Executive shall serve as interim CFO.
Executive shall have such powers and duties in the management of the
Company as
may be prescribed in one or multiple resolutions by the Board of Directors
of
the Company. (“Board of Directors”), and, to the extent not so provided, as
generally pertain to the office of Chief Executive Officer, subject to
the
direction and oversight of the Board of Directors. Executive agrees to
his
employment as described in this Section 2 and agrees to devote substantially
all
of his business time and efforts to the performance of his duties under
this
Agreement and to promote and advance the business interests of the Company
in a
lawful, diligent and proper manner, in conjunction with his role and
responsibilities with Endavo Media and Communications, Inc., a subsidiary
of the
Company, as described in a separate executive management agreement with
Endavo.
Executive shall comply with the policies and procedures of the Company
adopted
by the Board of Directors and executive management from time to time.
Executive
shall not be required to change his residence, but shall be available
to travel
as the needs of the business require.
Consulting
Provision
Without
limiting all other rights under this agreement, including compensation
due and
payable under the agreement, Executive may convert this Employment Contract
into
a consulting contract, with the non-competition clause in Section 7 no
longer
applicable, if:
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Executive
is not elected a director or does not continue to serve as a
director
while he desires to be a director,
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Executive
is not elected to and maintained in the executive position of
President as
specified in the Employment Contract or is not allowed to perform
his
duties as Chief Executive Officer as specified in the Employment
Contract,
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Executive
has a policy dispute with the Board of Directors of the Company,
with
officers of the Company senior to him, or with the Board of Directors
or
any officer of any of the Conglomerates Corporations (as defined
below),
or the control of the Company or of any of the Conglomerates
Corpora-tions
changes.
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Compensation
As
full
compensation for his services hereunder, the Company shall (i) issue
a
non-qualified employee stock option to the Executive, in the form of
option
typically used by the Company and under a current and effective Stock
Option
Plan established by the Company, to purchase up to 2,000,000 shares of
common
stock of the Company, free and clear of any encumbrances, at the fair
market
value, defined as lowest trading price of the common stock on the date
of issue
of the options, (ii) provide Executive with health and life insurance
policies,
if requested, or alternatively shall pay Executive a monthly health insurance
reimbursement not to exceed $500, without further agreement by the Company,
based on submission of proper insurance premium expense documentation
and (iii)
reimburse Executive for Executive’s legal expenses related to negotiating this
Agreement and the Non-Qualified Stock Option Agreement of an amount not
to
exceed $1,000. Nothing contained herein shall preclude Executive from
participating in the present or future Executive benefit or bonus compensation
plans of the Company if he meets the eligibility requirements therefore.
Executive shall be entitled to reasonable vacations in accordance with
the then
regular procedures of the Company.
Executive
reserves the right to request, from time to time, a cash salary from
the Company
by seeking approval from the Company’s Board of Directors once the Company,
through its subsidiaries, generates sufficient revenues and expansion
of
operations to support such a cash salary for the Company’s executive officers.
Executive reserves the right to terminate this agreement for Good Reason,
as
defined below, if the Board of Directors unreasonably withholds approval
for
reasonable cash salary if a formal request is made to the Board of Directors
by
the Executive.
Expenses
Executive
shall be entitled to reimbursement for reasonable travel and other out-of-pocket
expenses necessarily incurred in the performance of his duties hereunder,
upon
submission and approval of written statements and bills in accordance
with the
then regular procedures of the Company.
Participation
in Benefit Plans.
During
the Employment Period, Executive shall be eligible to participate in
all
Executive benefit plans and arrangements now in effect or which may hereafter
be
established, including, without limitation, all life, group insurance
and
medical care plans and all disability, 401k and other Executive benefit
plans of
Employer.
Representations
and Warranties of Executive
Executive
represents and warrants to the Company that (a) Executive is under no
contractual or other restriction or obligation which is inconsistent
with the
execution of this Agree-ment, the performance of his duties hereunder,
or the
other rights of the Company hereunder and (b) Executive is under no physical
or
mental disability that would preclude his performance, with or without
reasonable accommodation, of the essential duties of his position.
Non-Competition
A. Executive
agrees that he will not (a) during the period he is employed by any of
the
Corporations under this Agreement or otherwise engage in, or otherwise
directly
or indirectly be employed by, or act as a consultant or lender to, or
be a
director, officer, manager, owner, or partner of, any other business
or
organization, whether or not such business or organization now is or
shall then
be competing with the Company, and (b) for a period of one year after
he ceases
to be employed by the Company under this Agreement or otherwise, directly
or
indirectly compete with or be engaged in the same business as of the
Company, or
be employed by, or act as consultant or lender to, or be a director,
officer,
manager, owner, or partner of, any business or organization which, at
the time
of such cessation, directly or indirectly competes with or is engaged
in the
same business as the Company, except that in each case the provisions of
this Section 7 will not be deemed breached merely because Executive owns
not
more than 1% of the outstanding common stock of a corporation, if, at
the time
of its acquisition by Executive, such stock is listed on a national securities
exchange, is reported on NASDAQ, or is regularly traded in the over-the-counter
market by a member of a national securities exchange.
B. In
the
event that there is a dispute between Executive and Company whereby (i)
Executive is no longer an executive manager of the Company, (ii) a Change
of
Control has occurred, or (iii) the Company has failed to honor is obligations
hereunder; Executive shall no longer be subject to the terms of this
Section 7
Non-Competition clause.
Patents,
Etc.
Any
interest in patents, patent applications, inventions, copyrights, developments,
and processes (“Such Inventions”) which Executive now or hereafter during the
period he is employed by the Company under this Agreement or otherwise
may own
or develop relating to the fields in which the Company may then be engaged
shall
belong to the Company; and forthwith upon request of the Company Executive
shall
execute all such assignments and other documents and take all such other
action
as the Company may reasonably request in order to vest in the Company
all his
right, title, and interest in and to Such Inventions free and clear of
all
liens, charges, and encumbrances.
Confidential
Information
All
confidential information which Executive may now possess, may obtain
during or
after the Employment Period, or may create prior to the end of the period
he is
employed by the Company under this Agreement or otherwise relating to
the
business of the Company or of any customer or supplier of any of them
shall not
be published, disclosed, or made accessible by him to any other person,
firm, or
corporation either during or after the termination of his employment
or used by
him except during the Employment Period in the business and for the benefit
of
the Company, in each case without prior written permission of the Company.
Executive shall return all tangible evidence of such confidential information
to
the Company prior to or at the termination of his employment.
Life
Insurance
If
requested by the Company, Executive shall submit to such physical examinations
and otherwise take such actions and execute and deliver such documents
as may be
reasonably necessary to enable the Company, at its expense and for its
own
benefit, to obtain life insurance on the life of Executive. Executive
has no
reason to believe that his life is not insurable with a reputable insurance
company at rates now prevailing for healthy men of his age.
Termination
The
Executive’s employment hereunder may be terminated under the following
circumstances:
(a)
Death. The Executive’s employment hereunder shall terminate upon his
death.
(b)
Disability. If the Board determines in good faith, based on medical evidence
acceptable to it, that the Executive has become physically or mentally
disabled
or incapacitated during his employment hereunder for a continuous period
of
ninety (90) days to such an extent that he shall be unable to perform
his duties
hereunder then the Company may, after the expiration of said ninety (90)
day
period and during the continuance of such disability or incapacity, give
to the
Executive a Notice of Termination
(as defined in Section 11(e)
hereof) of the Executive's employment hereunder and such employment shall
terminate on
the
date provided in Section 11(f)
hereof.
(c)
Termination by the Company. The Company may terminate the Executive's
employment
hereunder at any time with or without Cause. For purposes of this Agreement,
the
Company shall have "Cause" to terminate the Executive's employment hereunder
upon (A) the engaging by the Executive in willful misconduct that is
materially
injurious to the Company, (B) the embezzlement or misappropriation of
funds or
property of the Company by the Executive or the conviction of the Executive
of a
felony or the entrance of a plea of guilty by the Executive to a felony
or (C)
the failure or refusal by the Executive to devote his full business time
and
attention to the performance of his duties and responsibilities hereunder
or
other breach by the Executive of this Agreement in any material respect
if such
breach has not been cured by the Executive within thirty (30) days after
the
Preliminary Notice (as defined below) has been given to the Executive.
For
purposes of this paragraph, no act, or failure to act, on the Executive's
part
shall be considered "willful" unless done, or omitted to be done, by
him not in
good faith and without reasonable belief that his action or omission
was in the
best interest of the Company. The Executive shall not be deemed to have
been
terminated for Cause, unless the Company shall have given the Executive
(i)
notice (the "Preliminary Notice") setting forth, in reasonable detail
the facts
and circumstances claimed to provide a basis for termination for Cause,
(ii) a
reasonable opportunity for the Executive, together with his counsel,
to be heard
before the Board and (iii) a Notice of Termination stating that, in the
good
faith judgment of the Board, the Executive was guilty of conduct set
forth in
clauses (A), (B) or (C) above, and specifying the particulars thereof
in
reasonable detail. Upon receipt of the Preliminary Notice, the Executive
shall
have thirty (30) days in which to appear before the Board with counsel,
or take
such other action as he may deem appropriate, and such thirty (30) day
period is
hereby agreed to as a reasonable opportunity for the Executive to be
heard.
(d)
Termination by the Executive. The Executive may voluntarily terminate
his
employment hereunder at any time with or without Good Reason. For purposes
of
this Agreement, "Good Reason" shall mean, so long as the Executive has
not been
guilty of the conduct set forth in clauses (A), (B) or (C) of Section
11(c)
hereof, (i) a failure by the Company to comply with any material provision
of
this Agreement that has not been cured within thirty (30) days after
written
notice of such noncompliance has been given by the Executive to the Company
or
(ii) the assignment to the Executive by the Company of duties inconsistent
with
the Executive's position, duties or responsibilities as in effect immediately
prior to the Effective Date, including, but not limited to, any material
reduction in such position, duties or responsibilities or material change
in his
title. The Executive's election to terminate under this Section 11(d)
shall be
made by giving Notice of Termination not later than 60 days from, as
applicable,
the date that the Company fails to cure under (i) above, the assignment
of
duties under (ii) above, and the date that the Executive is advised of
the
termination under (iii) above. Notwithstanding the provisions of clause
(ii) of
the first sentence of this Section 11(d), a change in title which represents
a
promotion and the assignment of different or additional duties or
responsibilities in connection therewith shall not constitute "Good Reason."
(e)
Notice of Termination. Any termination of the Executive's employment
by the
Company or by the Executive (other than termination pursuant to Section
11(a)
hereof) shall be communicated by written Notice of Termination to the
other
party hereto. For purposes of this Agreement, a "Notice of Termination"
shall
mean a notice that shall indicate the specific termination provision
in this
Agreement relied upon and shall set forth in reasonable detail the facts
and
circumstances, if any, claimed to provide a basis for termination of
the
Executive's employment under the provision so indicated.
(f)
Date
of Termination. Except to the extent otherwise herein provided, "Date
of
Termination" shall mean (i) if the Executive's employment is terminated
pursuant
to Section 11(a), the date of his death, (ii) if the Executive's employment
is
terminated pursuant to Section 11(b) or (c), the date of or a later date
specified in the Notice of Termination, (iii) if the Executive's employment
is
terminated pursuant to Section 11(d), the date on which the Notice of
Termination is given and (iv) if this Agreement is continued in effect
to the
end of the Term, the last day of the Term. Except as provided in and
subject to
Section 12 hereof, the Company shall not have any obligation to Executive
for
salary continuation, severance or termination pay upon termination of
this
Agreement.
Compensation
Upon Termination
If
the
Executive's employment is terminated (i) by the Company for Cause, (ii)
by the
Executive other than for Good Reason, or (iii) by reason of the Executive's
death or disability (pursuant to Section 11(b) hereof), then the Company
shall
pay the Executive his full Base Salary or Incentive Salary Rate through
the Date
of Termination (to the extent not otherwise paid through the Date of
Termination) at the rate in effect immediately prior to the Date of Termination,
provided that if the Executive's employment hereunder terminates by reason
of
his death, the Company shall continue to make salary payments at the
rate of the
Base Salary then in effect in respect of the month of death and three
calendar
months immediately following the month of death. (b) If the Executive's
employment is terminated (i) by the Company without Cause (other than
for
disability pursuant to Section 5(b) hereof), or (ii) by the Executive
for Good
Reason, then the Company shall pay to the Executive as severance pay
in a lump
sum, not later than the fifth day following the Date of Termination,
the
following amounts, which shall not be discounted to take into account
present
value:
(i)
to
the extent not otherwise paid through the Date of Termination, the amount
of
salary through the Date of Termination at the rate in effect at the time
Notice
of Termination is given; and
(ii)
in
lieu of any further salary and bonus or other incentive compensation
payments to
the Executive for periods subsequent to the Date of Termination, the
total
amount of salary then in effect that would be paid for three calendar
months.
Merger,
Etc.
In
the
event of a future disposition of more than 51% of the properties or business
of
the Company, by merger, consolidation, sale of assets, or otherwise (a
“Change
of Control”), then the Company may elect:
to
assign
this Agreement and all of its rights and obligations hereunder to the
acquiring
or surviving corporation; provided that such corporation shall assume
in writing
all of the obligations of the Company hereunder; and provided further
that the
Company (in the event and so long as it remains in business as an independent
going enterprise) shall remain liable for the performance of its obligations
hereunder in the event of an unjustified failure of the acquiring corporation
to
perform its obligations under this Agreement; or convert this Employment
Contract into a consulting contract, except with the non-competition
clause
described in Section 7 herein no longer being applicable.
If
the
agreement is not assigned by the acquiring or surviving corporation or
if a
consulting contract is not agreed upon, then a Termination Payment shall
be made
as defined in Section 12(b)(i) and 12(b)(ii) of this agreement.
Survival
The
covenants, agreements, representations, and warranties contained in or made
pursuant to this Agreement shall survive Executive’s termination of employment,
irrespective of any investigation made by or on behalf of any
party.
Modification
This
Agreement and the exhibits thereto sets forth the entire understanding
of the
parties with respect to the subject matter hereof, supersedes all existing
agreements between them concerning such subject matter, and may be modified
only
by a written instrument duly executed by each party.
Notices
Any
notice or other communication required or permitted to be given hereunder
shall
be in writing and shall be given by Federal Express, Express Mail, or
similar
overnight delivery or courier service or delivered against receipt to
the party
to whom it is to be given at the address of such party set forth below
(or to
such other address as the party shall have furnished in writing in accordance
with the provisions of this Section 16. Notice to the estate of Executive
shall
be sufficient if addressed to Executive as provided in this Section 16.
Any
notice or other communication given by certified mail or such comparable
method
shall be deemed given at the time of certification therefore comparable
act, except for a notice changing a party’s address which shall be deemed given
at the time of receipt thereof. Any notice given by other means permitted
by
this Section 16 shall be deemed given at the time of receipt
thereof.
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If
to the Company, to:
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If
to Executive, to:
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Xxxx
X Xxxx
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00
XxxxXxxx Xxxxxxx, Xxx 000
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000
Xxxx Xxxxxxx Xxx
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Xxxxxxx,
XX 00000
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Xxxxxxxxxx,
XX 00000
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Facsimile
No. (000) 000-0000
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with
a copy to
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with
a copy to
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Sonfield
& Sonfield
000
Xxxxx
Xxxx Xxx Xxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Waiver
Any
waiver by either party of a breach of any provision of this Agreement
shall not
operate as or be construed to be a waiver of any other breach of such
provision
or of any breach of any other provision of this Agreement. The failure
of a
party to insist upon strict adherence to any term of this Agreement on
one or
more occasions shall not be considered a waiver or deprive that party
of the
right thereafter to insist upon strict adherence to that term or any
other term
of this Agreement. Any waiver must be in writing.
Binding
Effect
Executive’s
rights and obligations under this Agreement shall not be transferable
by
assignment or otherwise, such rights shall not be subject to commutation,
encumbrance, or the claims of Executive’s creditors, and any attempt to do any
of the foregoing shall be void. The provisions of this Agreement shall
be
binding upon and inure to the benefit of Executive and his heirs and
personal
representatives, and shall be binding upon and inure to the benefit of
the
Company and its successors and those who are its assigns under Section
13.
Separability
If
any
provision of this Agreement is invalid, illegal, or unenforceable, the
balance
of this Agreement shall remain in effect, and if any provision is inapplicable
to any person or circum-stance, it shall nevertheless remain applicable
to all
other persons and circumstances.
No
Third Party Beneficiaries
This
Agreement does not create, and shall not be construed as creating, any
rights
enforceable by any person not a party to this Agreement (except as provided
in
Section 19).
Headings
The
headings in this Agreement are solely for the convenience of reference
and shall
be given no effect in the construction or interpretation of this
Agreement.
Counterparts;
Governing Law
This
Agreement may be executed in any number of counterparts, each of which
shall be
deemed an original, but all of which together shall constitute one and
the same
instrument. It shall be governed by and construed in accordance with
the laws of
the State of Delaware, without giving effect to conflict of laws.
Arbitration
Any
dispute or controversy arising out of or relating to this Agreement or
any
breach of this Agreement shall be settled by arbitration to be held in
the State
of Delaware in accordance with the National Rules for the Resolution
of
Employment Disputes rules then in effect of the American Arbitra-tion
Association or any successor thereto. The arbitrator may grant injunctions
or
other relief in such dispute or controversy. The decision of the arbitrator
shall be final, conclusive, and binding on the parties to the arbitration.
Judgment may be entered on the arbitrator’s decision in any court having
jurisdiction, and the parties irrevocably consent to the jurisdiction
of courts
of the State of Delaware and of any federal court located in such State
for this
purpose. The losing party in such arbitration shall pay all the costs
and
expenses of such arbitration and all the reasonable attorneys’ fees and expenses
of the other party(ies) thereto. Notwithstanding the foregoing, either
party may
apply to any court of the State of Delaware or any federal court located
in such
State for injunctive relief to maintain the status quo until the arbitration
award is rendered or the controversy is otherwise resolved, and each
party
hereby consents to the exclusive jurisdiction and venue of such courts
for such
purpose; and either party may apply to any court of competent jurisdiction
for
injunctive relief and specific performance under Section 7, 8 or 9.
Attorneys’
Fees.
Attorneys’
Fees.
In the
event any dispute or litigation arises hereunder between any of the parties
hereto, their heirs, personal representatives, agents, successors or
assigns,
the prevailing party shall be entitled to all reasonable costs and expenses
incurred by it in connection therewith (including, without limitation,
all
reasonable attorneys’ and paralegals’ fees and costs incurred before and at any
trial, arbitration, or other proceeding and at all tribunal levels),
as well as
all other relief granted in any suit or other proceeding.
Jurisdiction
and Service of Process
Each
party hereby irrevocably consents to the jurisdiction of the courts of
the State
of Delaware and of any federal court located in such State in connection
with
any action or proceeding arising out of or relating to this Agreement
or a
breach of this Agreement. In any such action or proceeding, each party
waives
personal service of any summons, complaint, or other process and agrees
that
service thereof may be made in accordance with Section 17. Within 30
days after
such service, or such other time as may be mutually agreed upon in writing
by
the attorneys for the parties to such action or proceeding, a party so
served
shall appear or answer such summons, complaint, or other process. Should
such
party so served fail to appear or answer within such 30-day period or
such
extended period, as the case may be, such party shall be deemed in default
and
judgment may be entered by the other party against such party or the
amount as
demanded in any summons, complaint, or other process so served.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written and the Company’s board has approved this
Agreement, a copy of which shall remain attached to this Agreement.
By:
_______________________
Name:
Xxxx X Xxxx
Title:
Chairman of the Board
By:
_______________________
Name:
_______________________
Director:
_______________________
By:
_______________________
Name:
_______________________
Director:
_______________________
EXECUTIVE
_______________________
Xxxx
X
Xxxx
