Exhibit 10.5 Employment Agreement between Global Media Group, Inc. and Xxxxx Xxx
Global Media Group
EMPLOYMENT AGREEMENT
President
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of May 1, 2006, by and
between Xxxxx Xxx ("Employee") and Global Media Group, Inc., a Nevada
corporation ("Employer" or the "Company").
RECITALS
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WHEREAS, Employer offers media services, content, media related
technology, products, and
WHEREAS, Employee has significant executive management experience and
is deemed to be critically valuable to Employer; and
WHEREAS, Employer desires to employ Employee as the President of the
Employer, and Employee desires to be so retained pursuant to the terms of this
Agreement:
A G R E E M E N T
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NOW, THEREFORE, in consideration of the mutual covenants set forth
below, the parties hereby agree as follows.
Section 1. Employment.
1.1 Term. Employer shall employ Employee, and Employee shall serve
Employer for a term of three (3) years commencing on the date of this Agreement,
subject to the provisions set forth below.
1.2 Duties.
(a) Capacity. Employee shall serve as President of Employer. Employee
agrees to serve the Company in such capacity, with the authority and
responsibilities customarily accorded an executive officer with that title.
Employee shall perform such services and duties as are customarily incident to
such employment, as well as such duties, not inconsistent with this agreement,
as the Board of Directors of Employer (the "Board") may from time to time
direct. The Employee shall report and be responsible to the Chief Executive
Officer.
(b) Schedule. So long as Employee is employed by Employer, Employee
shall devote all of Employee's working time and attention as necessary to
faithfully and fully carry-out his duties described herein. Employee shall at
all times perform his duties and obligations faithfully, diligently and to the
best of Employee's ability.
(c) Key Man Insurance. Employer may for its benefit and at its own
expense insure Employer's life. Employee agrees to submit to such physical
examination and supply such information as may be reasonably required in
connection therewith.
1.3 Compensation. As compensation for the services to be rendered
during such period and the other obligations undertaken by Employee hereunder,
Employee shall be entitled to the following compensation:
(a) Base Salary. Subject to adjustment as described below, Employer
shall pay to Employee a base salary at a monthly rate of Ten Thousand dollars ($
10,000) during the term of this Agreement (the "Base Salary") or such greater
amount as may be determined upon a review of Employee's performance to be
undertaken pursuant to Company policy regarding performance reviews by senior
executive officers at least once annually. Employee's Base Salary shall be
payable in accordance with Employer's standard payroll procedures. At such time
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as the Board determines that Employer has achieved and maintained profitability
for a period of at least ninety (90) days or receives funding of the company
business plan, the Base Salary shall be adjusted upward to market rates (as
determined in good faith by the Board) for executives holding similar titles in
companies of a similar size and type as Employer.
(b) Certain Benefits. Employee shall be entitled to participate in all
employee benefit programs established by Employer from time to time for
employees or executives of Employer to the extent that executives or senior
management employees of Employer generally are eligible to participate in such
programs. Employee shall be further entitled to an annual paid vacation of four
(4) weeks and other benefits in accordance with Employer's policies as from time
to time established by the Board for employees and/or senior executive officers
and the following: (i) medical, dental and vision insurance plans for Employee
and his immediate family consistent with Employer standard; (ii) a per month
automobile leasing, operating, insurance and maintenance expense allowance
similar to that provided to other senior executive officers of the Employer or
the cash equivalent in the form of an expense reimbursement, as might be
standard to senior executives; (iii) cell phone and other communication device
acquisition and operating expenses related to Employer.
(c) Annual Performance Bonus. Employer shall pay Employee an annual
bonus (less required withholdings), subject to meeting mutually agreeable annual
performance criteria mutually established by Employer and Employee between
February 1 and April 1 of each year of this Agreement. Employer and Employee
agree to establish the annual performance criteria for the first year of this
Agreement within sixty (60) days after execution of this Agreement.
(d) Reimbursement of Expenses. Subject to such rules and procedures
which from time to time are reasonably specified by the Employer, Employer shall
reimburse Employee for reasonable and necessary business expenses incurred in
the performance of Employee's duties under this Agreement, including without
limitation travel, entertainment and telecommunications.
(e) Severance Compensation for Termination Without Cause. In the event
that Employee's employment is terminated by Employer for any reason (other than
as a result of the termination of this Agreement pursuant to Sections 3.1 or
3.2) or terminated by Employee as a result of a material breach of this
Agreement by Employer (any of the foregoing, an "Involuntary Termination"),
Employee shall be entitled to receive from Employer an amount equal to the sum
of: (i) Employee's then-current Base Salary during the period commencing on the
effective date of an Involuntary Termination and ending on the earlier of the
date three (3) years later or the date on which this Agreement would have
otherwise terminated pursuant to Section 1.1 above but in no case les than one
year (in each case payable in monthly installments during such period), plus
(ii) any bonus actually earned through that period. In addition, upon an
Involuntary Termination, Employee shall continue to receive (or receive cash
compensation in an amount equivalent thereto) continued health insurance
benefits through the date on which this Agreement would have otherwise
terminated pursuant to Section 1.1 above and all unvested benefits issued to or
otherwise held in Employee's name shall become immediately vested in full.
Receipt of the above benefits on an Involuntary Termination are contingent upon
the execution and delivery by Employee or Employee's personal representative of
a general release reasonably satisfactory to Employer releasing Employer, its
officers, agents, shareholders, and affiliates from any liability for any matter
other than for payments under this Section and from any contractual obligations
under any other written agreements between Employee and Employer.
(f) Most Favored Nations Benefits; Incentive Stock Option Plan.
Employee shall participate in all stock, option and other executive pools and
programs generally offered to other senior executive of Employer, consistent
with the requirements of applicable state and federal law.
Section 2. Nondisclosure and Noncompetition.
2.1 Nondisclosure. Employee recognizes the interests of Employer in
maintaining the confidential nature of its proprietary, and other business and
commercial information. In consideration thereof, Employee shall not (except as
authorized in writing by Employer or in the ordinary and normal course of
performing his duties hereunder) during his employment hereunder or at any time
following termination of Employee's employment, directly or indirectly, publish,
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disclose or use, or authorize anyone else to publish, disclose or use, any
secret or confidential matter, or proprietary or other information not otherwise
available in the public domain and acquired by Employee during his employment
hereunder or through representation on Employer's Board, relating to any aspect
of the operations, activities, or obligations of Employer, and/or or any member
of the consolidated group of corporations affiliated therewith (all of which
companies shall be included within the definition of Employer for purposes of
this Section 2.1) including, without limitation, any confidential material or
information relating to Employer's business, customers, suppliers, trade or
industrial practices, trade secrets, technology, know-how or intellectual
property. All records, files, data, documents and the like relating to
suppliers, customers, costs, prices, systems, methods, personnel, equipment and
other materials relating to Employer shall be and remain the sole property of
Employer. Upon termination of Employee's employment hereunder, Employee shall
not remove from Employer's premises or retain any of the materials described in
this Section 2.1, except with the prior written consent of Employer and all such
materials in Employee's possession shall be delivered promptly to Employer.
2.2 Noncompetition. Employee covenants and agrees that:
(a) During Employee's employment and for any period following the
termination of Employee's employment during respect to which Employee is
receiving severance or separation payments, Employee will not (whether
individually or as principal, partner, member, investor, director, officer,
agent, employee, consultant or otherwise) directly or indirectly (except as an
employee of Employer or an affiliate of Employer) engage in, or directly or
indirectly be financially interested in, any business unit engaged in the
development, manufacture or sale of software or on-line services in support of
the lottery industry. Each of the following activities, without limitation,
shall be deemed to "engage in" a business: to engage in, carry on, work with, be
employed by, consult for, invest in, solicit customers for, have an equity
interest in, advise, lend money to, guarantee the debts or obligations of,
contribute, sell or license intellectual property to, or permit one's name or
any part thereof to be used in connection with, any enterprise or endeavor,
either individually, in partnership or in conjunction with any person, firm,
association, partnership, joint venture, limited liability company, corporation
or other business, whether as principal, agent, shareholder, partner, joint
venturer, member, director, officer, employee, consultant, licensor or in any
other manner whatsoever. However, nothing contained in this Agreement shall
prohibit Employee from (i) being employed by or serving as a consultant to
Employer or any affiliate of Employer, (ii) acquiring or holding at any one time
less than five percent (5%) of the outstanding securities of any publicly traded
company, (iii) holding stock of Employer or any affiliate of Employer, (iv)
acquiring or holding an interest in a mutual fund, limited partnership, venture
capital fund or similar investment entity of which such party is not an
employee, officer or general partner and with respect to which such party has no
power to make, participate in or directly influence investment decisions; (v)
acquiring or holding an interest in any other private company so long as
Employee's interest in such company is less than twenty percent (20%) and
Employee is not an employee, officer, director or general partner of such
entity.
(b) If the scope of any restrictions contained in subparagraph (a) is
too broad to permit enforcement of such restrictions to their full extent, then
such restrictions shall be enforced to the maximum extent permitted by law, and
Employee hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restrictions.
2.3 Specific Performance. Employee acknowledges and agrees that
Employer's remedies at law for a breach or threatened breach of any of the
provisions of this Section 2 would be inadequate and, in recognition of this
fact, Employee agrees that in the event of such a breach or threatened breach,
in addition to any remedies at law, Employer, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available.
Section 3. Termination.
3.1 Death. This Agreement shall terminate upon Employee's death. In the
event of Employee's death while in the employ of Employer, Employer shall pay to
such person or persons as the Employee may specifically designate (successively
or contingently) by filing a written beneficiary designation with Employer
during Employee's lifetime ("Designated Beneficiaries") a death benefit in an
amount equal to six (6) months of Employee's Base Salary as in effect
immediately prior to Employee's death; such amount to be payable to Employee's
Designated Beneficiaries in six (6) monthly installments beginning on the first
month immediately following Employee's death.
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3.2 Cause. Employer shall have the right to terminate this Agreement
(other than Section2, which shall in any event remain in full force and effect)
and Employee's employment hereunder for cause upon written notice to Employee.
"Cause" shall mean the Employee's: (a) dishonesty in the performance of the
Employee's duties hereunder (including, but not limited to, theft or
embezzlement of Company funds or assets); (b) conviction of, or guilty plea or
no contest plea, to a felony charge or any misdemeanor involving moral
turpitude, or the entry of a consent decree with any governmental body; (c)
noncompliance in any material respect with any laws or regulations, foreign or
domestic, affecting the operation of the Company's business; (d) violation of
any express direction or any rule, regulation or policy established by the Board
that is consistent with the terms of this Agreement, if such violation is likely
to have a material adverse effect on the Company; (e) material breach of this
Agreement or material breach of the Employee's fiduciary duties to the Company;
(f) gross incompetence, gross neglect, or gross misconduct in the performance of
the Employee's duties; (g) repeated and consistent failure to devote Employee's
full working time and attention to the service of the Company subject to Section
1.2 of this Agreement; or (h) abuse of alcohol or drugs which interferes with
the Employee's performance of his duties. With respect to those circumstances of
Cause set forth in the preceding clauses (c) through (h) that are reasonably
susceptible to cure, Cause shall only exist where the Company has provided the
Employee with written notice of the alleged problem and the Employee has failed
to cure such condition to the satisfaction of the Company within ten (10)
business days.
Section 4. Miscellaneous.
4.1 Amendment. This Agreement may be amended only be writing executed
by the parties hereto, which has been approved in advance by a majority of the
disinterested members of the Board.
4.2 Mitigation. In the event of a Involuntary Termination of Employee's
employment, Employee shall not be required to seek other employment; in
addition, no amount payable under this Agreement shall be reduced by any
compensation earned by Employee as a result of employment by another employer
after such termination of employment with Employer
4.3 Entire Agreement. This Agreement and the other agreements expressly
referred to herein set forth the entire understanding of the parties hereto
regarding the subject matter hereof and supersede all prior contracts,
agreements, arrangements, communications, discussions, representations and
warranties, whether oral or written, between the parties regarding the subject
matter hereof.
4.4 Notices. Any notice, request, consent and other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given upon the earlier of receipt or five (5) days after being sent by
registered or certified mail, return receipt requested, postage prepaid, to the
parties (and to the persons to whom copies shall be sent) at their respective
addresses set forth below.
If to Employer:
Global Media Group, Inc.
000 Xxx Xxxxx Xxxxxx Xxxx.
Xxxxxxxx, XX 00000
If to Employee:
Xxxxx Xxx
[Omitted]
Any party by written notice to the other party given in accordance with this
Section may change the address or the persons to whom notices or copies thereof
shall be directed.
4.5 Assignability; Successors . This Agreement is personal to Employee
and may not be assigned except to the Employee's personal representative in the
event of the Employee's death or permanent disability. This Agreement is
assignable by Employer; but only to an entity that is affiliated with Employer.
This Agreement shall bind and inure to the benefit of all permitted successors,
heirs and personal representatives of each of the parties hereto.
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4.7 Governing Law; Venue. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California. All parties
agree that venue for any and all claims arising from the Agreement shall be
located in the state or federal courts located in Contra Costa County,
California.
4.8 Severability. If any provision of this Agreement shall be
adjudicated to be, in whole or in part, invalid, ineffective or unenforceable,
the remaining provisions of this Agreement shall not be affected thereby. The
invalid, ineffective and unenforceable provision shall, without further action
by the parties, be automatically amended to effect so much of the original
purpose and intent of the invalid, ineffective or unenforceable provision;
provided, however, that such amendment shall apply only with respect to the
operation of such provision in the particular jurisdiction with respect to which
such adjudication is made.
4.9 Waivers. Any waiver by any party of any violation of, breach of or
default under any provision of this Agreement, by the other party shall not be
construed as, or constitute, a continuing waiver of such provisions, or waiver
of any other violation of, breach of or default under any other provision of
this Agreement.
4.10 Headings. The headings in this Agreement are solely for
convenience of reference and shall not be given any effect in the construction
or interpretation of this Agreement.
4.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together will constitute one and the same Agreement.
4.12 Enforcement. In the event that either party resorts to legal
action to enforce the terms and provisions of this Agreement, the prevailing
party shall be entitled to recover from the non-prevailing party the costs of
such action so incurred, including, without limitation, reasonable attorneys'
fees.
4.13 Legal Representation Employee acknowledges and agrees that he has
read and understands the terms set forth in this Agreement and has been given a
reasonable opportunity to consult with an attorney prior to execution of this
Agreement.
4.14 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER
PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
4.15 Arbitration. Except for ancillary measures in aid of arbitration
and for proceedings to obtain provisional remedies and interim relief,
including, without limitation, injunctive relief, any controversy, dispute or
claim arising out of or in connection with or relating to this Agreement, or the
breach, termination or validity thereof or any transaction contemplated hereby
or thereby (any such controversy, dispute or claim being referred to as a
"Dispute") shall be finally settled by arbitration conducted expeditiously in
accordance with the Commercial Arbitration Rules then in force (the "AAA Rules")
of the American Arbitration Association (the "AAA"). There shall be a panel of
three arbitrators who shall be appointed pursuant to AAA procedures, in each
case, within fifteen (15) business days of the demand for arbitration by the
respondent(s) in any such proceeding. Each of the arbitrators shall be an
attorney with no less than fifteen (15) years' experience in the practice of
business law. Any arbitration pursuant to this Section shall take place in Xxxxx
County, Nevada. A final award shall be rendered as soon as reasonably possible
and, in any event, within ninety (90) days of the filing with AAA any demand for
arbitration; provided, however, that if the arbitrators determine by majority
vote that fairness so requires, such ninety (90) day period may be extended by
no more than sixty (60) additional days. The parties agree that the arbitrators
shall have the right and power to shorten the length of any notice periods or
other time periods provided in the AAA Rules and to implement "Expedited
Procedures" under the AAA Rules in order to ensure that the arbitration process
is completed within the time frames provided herein. The arbitration decision or
award shall be in writing. Judgment on the decision or award rendered by the
arbitrators may be entered and specifically enforced in any court having
jurisdiction thereof. Notwithstanding the provisions of Section any arbitration
held pursuant to the provisions of this Section shall be governed by the Federal
Arbitration Act. All arbitrations commenced pursuant to this Agreement or any
other Related Agreements shall be consolidated and heard by the initially
constituted panel of arbitrators.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
as of the date first above written.
EMPLOYEE:
---------
/s/ Xxxxx Xxx
Xxxxx Xxx
EMPLOYER:
---------
Global Media Group, Inc.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
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