EXHIBIT 10.26
FORM OF EMPLOYMENT AGREEMENTS
This EMPLOYMENT AGREEMENT is entered into on ____________ __, 2002 by
and among Thane International, Inc., a Delaware corporation ("Thane"), Reliant
Interactive Media Corp., a Nevada corporation (the "Corporation"), and Xxxxx
Xxxxxxxxxx, an individual residing at 0000 Xxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxx
00000 (the "Executive"), under the following terms and conditions:
RECITALS:
WHEREAS, on or about December 6, 2001, Thane, Reliant Acquisition
Corporation, a Nevada corporation wholly owned by Thane ("Acquisition"), the
Corporation, and certain controlling stockholders of the Corporation, including
the Executive, entered into an Amended and Restated Agreement and Plan of
Merger (the "Merger Agreement"), pursuant to which (i) Acquisition shall be
merged with and into the Corporation (the "Merger") with the Corporation
surviving such Merger as a wholly owned subsidiary of Thane and (ii) the
stockholders of the Corporation shall receive shares of the common stock of
Thane; and
WHEREAS, the Executive is a stockholder of the Corporation and will
personally derive significant value from the Merger; and
WHEREAS, the Executive and the Corporation entered into that certain
Employment Agreement, dated as of September 9, 2000 (the "Former Contract"),
pursuant to which the Executive was entitled to certain compensation and
benefits; and
WHEREAS, the execution and delivery of this Employment Agreement, as a
new contract to completely supersede the Former Contract, (i) is an inducement
to each of the Corporation and Thane to enter into the Merger Agreement and is
a condition to Thane's consummation of the Merger and (ii) provides significant
consideration to the Executive; and
WHEREAS, the Corporation desires to retain and employ the Executive,
and the Executive desires to be employed by the Corporation on the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, it is hereby covenanted and agreed by the
Corporation and the Executive as follows:
1. Employment Period. The Corporation hereby agrees to employ
the Executive as its _________________________, and the Executive, in such
capacity, agrees to provide services to the Corporation for the period
beginning on the date of the closing of the Merger (the "Commencement Date")
and ending on March 31, 2005 (the "Employment Period").
2. Performance of Duties. The Executive agrees that during the
Employment Period, while he is employed by the Corporation, he shall devote
substantially all of his business time, energies and talents to serving in the
capacity of ___________________________ of the Corporation in the best
interests of the Corporation, and to perform the duties assigned to him by
the Board of Directors of the Corporation (the "Board") faithfully, efficiently
and in a professional manner. The Executive shall not, without prior written
consent from the Board (which consent shall not be unreasonably withheld):
(a) serve as or be a consultant to or employee, officer,
agent or director of any corporation, partnership or other entity other than
the Corporation or its affiliates (other than civic, charitable, or other
public service organizations); or
(b) have more than a five percent (5%) ownership
interest in any enterprise other than Thane or its affiliates. Set forth on
Schedule 2(b) attached hereto is a detailed list of the Executive's ownership
interests as of the date hereof.
3. Compensation. Subject to the terms and conditions of this
Employment Agreement, during the Employment Period, while he is employed by the
Corporation, the Executive shall be compensated by the Corporation for his
services as follows:
(a) Base Salary. The Executive shall receive, for each
12-consecutive month period beginning on the Commencement Date and each
anniversary thereof, a rate of salary that is not less than $300,000 per year
(the "Base Salary"), payable in substantially equal monthly or more frequent
installments and subject to normal tax withholding. During the Employment
Period the Executive's Base Salary shall be reviewed by the Board on or before
each anniversary of the Commencement Date to determine whether an increase in
the Executive's rate of compensation is appropriate.
(b) Signing Bonus. On the Commencement Date, the
Executive shall be entitled to receive a cash signing bonus in the amount of
$1,500,000.
(c) Incentive Bonus. During each year of the Employment
Period the Executive shall, to the extent provided below, be entitled to
receive a cash incentive bonus (the "Incentive Bonus Amount") based on the
Corporation's performance as follows:
(i) If the Corporation's earnings before
interest and income taxes, excluding (A) extraordinary gains and
losses and purchase accounting adjustments, (B) acquisitions of
businesses made after the Commencement Date and (C) the payment of any
Incentive Bonus Amounts ("EBIT"), as determined in accordance with
U.S. generally accepted accounting principles, consistently applied,
as in existence at the date hereof ("GAAP") for the 2002 fiscal year
(the "2002 EBIT") equals or exceeds $7.0 million, the Executive shall
receive an Incentive Bonus Amount equal to 3.33% of the amount by
which the 2002 EBIT exceeds $7.0 million. For purposes of this
Agreement, the term "fiscal year" shall mean, for any given year, the
period beginning on April 1 in such year and ending on March 31 in the
following year.
(ii) If the Corporation's EBIT for the 2003
fiscal year (the "2003 EBIT") equals or exceeds $9.0 million, the
Executive shall receive an Incentive Bonus Amount equal to 3.33% of
the amount by which the 2003 EBIT exceeds $9.0 million.
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(iii) If the Corporation's EBIT for the 2004
fiscal year (the "2004 EBIT") equals or exceeds $12.0 million, the
Executive shall receive an Incentive Bonus Amount equal to 3.33% of
the amount by which the 2004 EBIT exceeds $12.0 million.
(iv) For purposes of this Section 3, if the
Corporation develops or acquires a product for distribution which
product is distributed by Thane through any distribution channel other
than the Corporation's, the parties agree that 50% of Thane's EBIT (as
defined below) generated from the distribution and sale of such
product(s) shall be added to the Corporation's EBIT for the
appropriate year for purposes of calculating the Incentive Bonus
Amount payable to the Executive. For purposes hereof, Thane's EBIT
shall be Thane's earnings before interest and taxes, excluding (A)
extraordinary gains and losses and purchase accounting adjustments (B)
the Corporation's and its subsidiaries' earnings and (C) acquisitions
of businesses made after the Commencement Date as determined in
accordance with GAAP.
(v) Additionally, for purposes of this Section
3, the Corporation's EBIT shall be calculated to include any benefit
resulting from the Corporation using Thane's cost structure.
(vi) The Corporation shall pay any earned
Incentive Bonus Amount within thirty (30) days after completion of its
audited financial statements for the previous fiscal year.
(d) Options. The Executive shall be entitled to receive
the number of options set forth below to purchase shares of Thane common stock
at an exercise price per share of $0.01 (the "Options") based on the
Corporation achieving certain target levels of EBIT as set forth below. Thane
shall, pursuant to its option plan(s), issue any earned Options to the
Executive within thirty (30) days after completion of its audited financial
statements for the previous fiscal year. The Options for each fiscal year shall
not be deemed earned by the Executive unless the Executive is employed by the
Corporation on the last day of the applicable fiscal year unless the Executive
is terminated without cause hereunder, in which case the Executive shall be
entitled to receive Options in accordance with the provisions of Section
5(a)(i) and (ii) herein.
CORPORATION TARGET EBIT
---------------------------------
MINIMUM MAXIMUM
FISCAL YEARS TARGET EBIT TARGET EBIT OPTIONS(1)
------------ ----------- ----------- ----------
2002 $5,000,000 $10,000,000
2003 $6,500,000 $13,000,000
2004 $8,000,000 $16,000,000
---------
(1) DRAFT NOTE: The number of options will be adjusted for any Thane
recapitalization that occurs prior to the effective date of the
employment agreements.
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(i) In the event the Corporation's EBIT equals
or exceeds the Maximum Target EBIT for the fiscal years set forth in
the chart above, the Executive shall be entitled to receive the full
number of Options for such fiscal year. In the event the Corporation's
EBIT equals or exceeds the Minimum Target EBIT but is less than the
Maximum Target EBIT for such fiscal year as set forth in the chart
above, then the Executive shall receive a ratable portion of the
Options for such fiscal year as set forth in the chart above equal to
the applicable number of Options for such period multiplied by the
following fraction: (i) the numerator of which is the Corporation's
EBIT less the Minimum Target EBIT for such fiscal year, and (ii) the
denominator of which is the Maximum Target EBIT less the Minimum
Target EBIT for such fiscal year.
(ii) In the event that any portion of the 2002
Options is not earned pursuant to this Section 3(d), but the 2003 EBIT
exceeds $13.0 million, then the 2003 EBIT in excess of $13.0 million
shall be added to the 2002 EBIT to determine whether the 2002 Options
have been earned by the Executive.
(iii) In the event that any portion of the 2003
Options is not earned pursuant to this Section 3(d), but the 2004 EBIT
exceeds $16.0 million, then the 2004 EBIT in excess of $16.0 million
shall be added to the 2002 EBIT and/or the 2003 EBIT to determine
whether the 2002 and/or the 2003 Options have been earned by the
Executive.
(iv) The Executive and the Corporation hereby
agree that, effective as of the Commencement Date, any Options granted
to the Executive by the Corporation prior to the Commencement Date
shall be deemed to be expired and shall be of no further force and
effect.
(e) The Executive shall be entitled to receive the
following perquisites:
(i) The Corporation shall provide health and
medical insurance for the Executive in a form and program to be chosen
by the Corporation for certain of its executive employees as a group.
Additionally, the Executive shall be provided with vacation and such
other non-cash benefits provided to other similarly situated
executives of Thane.
(ii) The Corporation shall provide the Executive
with directors and officers liability insurance on substantially the
same terms and conditions as other similarly situated executives of
Thane.
(iii) The Corporation shall reimburse the
Executive's current monthly automobile lease payment until the earlier
of (A) the expiration of the Executive's current automobile lease or
(B) the end of the Employment Period, after which time the Corporation
shall provide the Executive with a monthly automobile allowance
consistent with those provided to other similarly situated executives
of Thane.
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(f) The Executive shall be reimbursed by the Corporation
for all reasonable business, promotional, travel and entertainment expenses
incurred or paid by the Executive during the Employment Period in the
performance of his services under this Employment Agreement: (i) provided that
such expenses constitute business deductions from taxable income for the
Corporation and are excludable from taxable income to the Executive under the
governing laws and regulations of the Internal Revenue Code unless otherwise
agreed to by the Corporation's Board of Directors; and (ii) to the extent that
such expenses do not exceed the amounts allocable for such expenses in budgets
that are approved from time to time by the Corporation. In order that the
Corporation reimburse the Executive for such allowable expenses, the Executive
shall furnish to the Corporation, in a timely fashion, the appropriate
documentation required by the Internal Revenue Code in connection with such
expenses and shall furnish such other documentation and accounting as the
Corporation may from time to time reasonably request.
4. Restrictive Covenants. The Executive acknowledges and agrees
that: (i) the Executive has a major responsibility for the operation,
development and growth of the Corporation's business; (ii) the Executive's work
for the Corporation has brought him and will continue to bring him into close
contact with confidential information of the Corporation, Thane and each of
their respective customers; and (iii) the agreements and covenants contained in
this paragraph 4 and in the Merger Agreement are essential to protect the
business interests of the Corporation and Thane and that the Corporation and
Thane would not enter into the Employment Agreement but for such agreements and
covenants. Accordingly, the Executive covenants and agrees to the following:
(a) Confidential Information. Except as may be required
by the lawful order of a court or agency of competent jurisdiction, the
Executive agrees to keep secret and confidential, both during the Employment
Period and indefinitely after the Executive's employment with the Corporation
terminates, all non-public information concerning the Corporation Thane and
each of their respective affiliates that was acquired by, or disclosed to, the
Executive during the course of his employment by the Corporation, including
information relating to customers (including, without limitation, credit
history, repayment history, financial information and financial statements),
costs, and operations, financial data and plans, whether past, current or
planned and not to disclose the same, either directly or indirectly, to any
other person, firm or business entity, or to use it in any way; provided,
however, that the provisions of this paragraph 4(a) shall not apply to
information that: (a) was, is now, or becomes generally available to the public
(but not as a result of a breach of any duty of confidentiality by which the
Executive is bound); (b) was disclosed to the Executive by a third party not
subject to any duty of confidentiality to the Corporation or Thane prior to its
disclosure to the Executive; or (c) is disclosed by the Executive in the
ordinary course of the Corporation's or Thane's business as a proper part of
his employment in connection with communications with customers, vendors and
other proper parties, provided that it is for a proper purpose solely for the
benefit of the Corporation and/or Thane. The Executive further agrees that he
shall not make any statement or disclosure that (i) would be prohibited by
applicable Federal or state laws, or (ii) is intended or reasonably likely to
be detrimental to the Corporation, Thane or any of their respective
subsidiaries or affiliates.
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(b) Non-Competition. The Executive, the Corporation and
Thane agree that reasonable restrictions upon competition with the Corporation
and/or Thane following termination of the Executive's employment with the
Corporation are necessary to protect the business interests of the Corporation
and Thane.
(i) For purposes of the scope of this Section
4(b), the extent of each of the Corporation's and Thane's business
(the "Business") shall be limited to the actual and intended business
of the Corporation and Thane, as demonstrated by each of their books,
records, contracts, advertising, strategic plans and financial and
budget documents, created or relied upon during the Employment Period
and as of the date the Executive leaves the employment of the
Corporation.
(ii) The Executive and Corporation agree that,
for a period commencing on the Commencement Date and ending on the
later of (A) the one (1) year anniversary of the date on which the
Executive's employment with the Corporation is terminated either (x)
for cause, (y) upon the Executive's disability pursuant to Section
5(e) or (z) upon the voluntary resignation of the Executive pursuant
to Section 5(b), or (B) March 31, 2005 (the "Non-Competition Period"),
the Executive shall not serve as or be a consultant to or employee,
officer, agent, director or owner of more than five percent (5%) of
another corporation, partnership or other entity that competes with
the Corporation or Thane in the Business; provided, however, in the
event the Executive's employment with the Corporation is terminated
without cause, the Non-Competition Period shall immediately terminate
if the Corporation (or Thane) does not continue to pay the Executive's
salary pursuant to Section 5(a) hereof.
(iii) That the nature of the television
production business of the Corporation is interstate and international
in scope, that the global scope of the business renders a global
restriction reasonable and a more narrowly tailored geographic
restriction insufficient to protect the legitimate business interests
of the Corporation.
(c) Remedies. If the Executive breaches, or threatens to
commit a breach of any of the provisions contained in paragraphs 4(a) and 4(b)
(the "Restrictive Covenants"), the Corporation and Thane shall have the
following rights and remedies, each of which shall be enforceable, and each of
which is in addition to, and not in lieu of, any other rights and remedies
available to the Corporation and Thane at law or in equity.
(i) The Executive shall account for and pay
over to the Corporation all compensation, profits, and other benefits
which inure to the Executive's benefit which are derived or received
by the Executive or any person or business entity controlled by the
Executive, or his relatives, resulting from any action or transactions
constituting a breach of any of the Restrictive Covenants.
(ii) Notwithstanding the provisions of
subparagraph 4(c)(i) above, the Executive acknowledges and agrees that
in the event of a violation or threatened violation of any of the
Restrictive Covenants, the Corporation and Thane shall have no
adequate remedy at law and shall therefore be entitled to enforce each
such provision by temporary
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or permanent injunction or mandatory relief obtained in any court of
competent jurisdiction without the necessity of proving damages,
posting any bond or other security, and without prejudice to any other
rights and remedies that may be available at law or in equity, and the
Corporation and Thane shall also be entitled to recover its attorneys'
fees and costs incurred to enforce any of the Restrictive Covenants
from the Executive.
(d) Severability. If any of the Restrictive Covenants,
or any part thereof, are held to be invalid or unenforceable, the same shall
not affect the remainder of the covenant or covenants, which shall be given
full effect, without regard to the invalid or unenforceable portions. Without
limiting the generality of the foregoing, if any of the Restrictive Covenants,
or any part thereof, are held to be unenforceable because of the duration of
such provision or the area covered thereby, the parties hereto agree that the
court making such determination shall have the power to reduce the duration
and/or area of such provision and, in its reduced form, such provision shall
then be enforceable.
(e) Proprietary Rights. The Executive acknowledges and
agrees that all know-how, documents, reports, plans, proposals, marketing and
sales plans, client lists, client files, and any materials made by the
Executive or by the Corporation are the property of the Corporation and shall
not be used by the Executive in any way adverse to the Corporation's interests.
The Executive shall not deliver, reproduce or in any way allow such documents
or things to be delivered or used by any third party without specific direction
or consent of the Board. The Executive hereby assigns to the Corporation any
rights which he may have in any such trade secret or proprietary information.
5. Termination and Compensation Due Upon Termination. The
Executive's right to compensation for periods after the date the Executive's
employment with the Corporation terminates shall be determined in accordance
with the following:
(a) Termination Without Cause or Resignation for Good
Cause. In the event the Corporation terminates the Executive's employment under
this Agreement without cause or the Executive resigns for Good Cause pursuant
to Section 5(d),
(i) and for the twelve month period immediately
preceding the effective date of termination the Corporation had net
income, upon the Executive's prior execution of a written release of
any and all claims, including without limitation any claims for lost
wages or benefits, stock options, compensatory damages, punitive
damages, attorneys' fees, equitable relief, or any other form of
damages or relief (excluding claims for amounts which may be payable
pursuant to this Agreement) the Executive may assert against the
Corporation which release shall be mutually agreed upon by the
Corporation and the Executive, (A) the Corporation shall pay the
Executive in accordance with the provisions of paragraph 3 any
compensation and benefits, including any earned Incentive Bonus Amount
and earned Options owed to the Executive through the effective date of
termination, (B) the Executive shall be entitled to receive any
Incentive Bonus Amount if and when earned in accordance with the
provisions of subparagraph 3(c) through the remainder of the
Employment Period, and (C) the Executive shall be entitled to receive
that number of Options, if and when earned in
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accordance with the provisions of subparagraph 3(d) through the
remainder of the Employment Period; or
(ii) for the twelve month period immediately
preceding the effective date of termination the Corporation had net
loss, upon the Executive's prior voluntary execution of a written
release (to be drafted and provided by the Corporation) of any and all
claims, including without limitation any claims for lost wages or
benefits, stock options, compensatory damages, punitive damages,
attorneys' fees, equitable relief, or any other form of damages or
relief (excluding for amounts which may be payable pursuant to this
Agreement) the Executive may assert against the Corporation, (A) the
Corporation shall pay the Executive in accordance with the provisions
of paragraph 3 any compensation and benefits, including any earned
Incentive Bonus Amount and earned Options owed to the Executive
through the effective date of termination, (B) the Executive shall be
entitled to receive any Incentive Bonus Amount if and when earned in
accordance with the provisions of subparagraph 3(c) through the
remainder of the Employment Period, and (C) the Executive shall be
entitled to receive that number of Options, if and when earned in
accordance with the provisions of subparagraph 3(d) through the
remainder of the Employment Period.
(b) Voluntary Resignation. The Executive may terminate
his employment with the Corporation for any reason (or no reason at all) at any
time by giving the Corporation sixty (60) days prior written notice of
voluntary resignation; provided, however, that the Corporation may decide that
the Executive's voluntary resignation be effective immediately upon notice of
such resignation. The Corporation shall have no obligation to make payments of
any kind or grant Options to the Executive in accordance with the provisions of
paragraph 3 for periods after the date on which the Executive's employment with
the Corporation terminates due to the Executive's voluntary resignation.
(c) Termination for Cause. The Corporation shall have no
obligation to make payments of any kind or grant Options to the Executive in
accordance with the provisions of paragraph 3 or otherwise for periods after
the Executive's employment with the Corporation is terminated on account of the
Executive's discharge for cause. For purposes of this paragraph 5, the
Executive shall be considered terminated for "cause" if he is discharged by the
Corporation on account of the occurrence of one or more of the following
events:
(i) the Executive becomes addicted to drugs or
alcohol;
(ii) the Executive discloses confidential
information in violation of paragraph 4(a) or engages in competition
in violation of paragraph 4(b) to the detriment of the Corporation
and/or Thane;
(iii) the Corporation is directed by regulatory
or governmental authorities to terminate the employment of the
Executive or the Executive engages in activities that cause actions to
be taken by regulatory or governmental authorities that have a
material adverse effect on the Corporation;
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(iv) the Executive is convicted of a felony
crime (other than a felony resulting from a minor traffic violation);
(v) the Executive flagrantly and repeatedly
disregards his duties under this Employment Agreement after (A)
written notice has been given to the Executive by the Board that it
views the Executive to be flagrantly disregarding his duties under
this Agreement and (B) the Executive has been given a period of thirty
(30) days after such notice to cure such misconduct. However, no
notice or cure period shall be required if Executive's disregard of
his duties has materially and adversely affected the Corporation
and/or Thane;
(vi) any event of willful misconduct to the
extent that, in the reasonable judgment of the Board, the Executive's
credibility and reputation no longer conform to the standard of the
Corporation's and Thane's executives; or
(vii) the Executive commits an act of fraud
against the Corporation and/or Thane, violates a duty of loyalty to
the Corporation and/or Thane as defined under Florida law or violates
paragraph 2.
(d) Relocation of Executive. In the event that the
Corporation requests the Executive to relocate to an office outside of the
Tampa/St. Petersburg area, the Executive may object to such request in writing
within thirty (30) days of receiving such request. If the Corporation insists
on the Executive relocating outside of the Tampa/St. Petersburg area after
receiving the Executive's written objection to such relocation request, the
Executive may resign for "Good Cause."
(e) Disability. The Corporation shall have no obligation
to make payments to the Executive in accordance with the provisions of
paragraph 3 for periods after the date the Executive's employment with the
Corporation terminates on account of any long-term disability, except payments
due and owing through the effective date of termination. For purposes of this
subparagraph 5(e), long-term disability shall mean any disability that has a
material adverse effect upon the ability of the Executive to perform on a
full-time basis his customary duties hereunder on a full-time basis either in
the judgment of the Executive's doctors or that continues for a period of
ninety (90) days out of any one hundred and fifty (150) day period.
(f) Death. The Corporation shall have no obligation to
make payments to the Executive in accordance with the provisions of paragraph 3
for periods after the date of the Executive's death, except payments due and
owing as of such date including earned salary, bonuses and Options.
6. Successors. This Agreement shall be binding on, and inure to
the benefit of, each of the Corporation and Thane and each of their respective
successors and assigns and any person acquiring, whether by merger,
consolidation, purchase directly or indirectly of all or substantially all of
the Corporation's assets and business, or otherwise.
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7. Nonalienation. The interests of the Executive under this
Agreement are not subject to the claims of his or her creditors, other than the
Corporation, and may not otherwise be voluntarily or involuntarily assigned,
alienated or encumbered except to the Executive's estate upon his or her death.
8. Waiver of Breach. The waiver by either the Corporation and
Thane, on one hand, or the Executive, on the other hand, of a breach of any
provision of this Agreement shall not operate as, or be deemed a waiver of, any
subsequent breach by either the Corporation, Thane, or the Executive.
9. Notice. Any notice to be given hereunder by a party hereto
shall be in writing and shall be deemed to have been given when received or,
when deposited in the U.S. mail, certified or registered mail, postage prepaid:
(a) to the Executive addressed as follows:
Mr. Xxxxx Xxxxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxx 00000
(b) to the Corporation addressed as follows:
Reliant Interactive Media Corp.
0000 Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention:
Telephone:
Facsimile:
with a copy to:
Thane International, Inc.
00-000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and a copy to:
H.I.G. Capital LLC
0000 Xxxxxxxx Xxx Xxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and a copy to:
White & Case LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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10. Amendment. This Agreement may be amended or canceled by
mutual agreement of the parties in writing without the consent of any other
person and no person, other than the parties hereto (and the Executive's estate
upon his death), shall have any rights under or interest in this Agreement or
the subject matter hereof. The parties hereby agree that no oral conversations
shall be deemed to be a modification of this Agreement and neither party shall
assert the same.
11. Applicable Law. The provisions of this Agreement shall be
construed in accordance with the internal laws of the State of Florida.
12. WAIVER OF JURY TRIAL. THE EXECUTIVE AND THE CORPORATION
EXPRESSLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL CONCERNING ANY CIVIL
ACTION THAT MAY ARISE FROM THIS AGREEMENT, OR THE RELATIONSHIP OF THE PARTIES
HERETO.
13. Termination. All of the provisions of this Agreement shall
terminate after the expiration of the Employment Period, except that paragraph
4(a) shall survive indefinitely, paragraph 4(b) shall terminate upon the
expiration of the Non-Competition Period and paragraph 5(b) shall terminate
upon the expiration of the Employment Period.
* * *
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IN WITNESS WHEREOF, the Executive, the Corporation and Thane have
executed this Employment Agreement as of the day and year first above written.
XXXXX XXXXXXXXXX
----------------------------------
RELIANT INTERACTIVE MEDIA CORP.
By:
-------------------------------
Its:
------------------------------
THANE INTERNATIONAL, INC.
By:
-------------------------------
Its:
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FORM OF EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into on ____________ __, 2002 by
and among Thane International, Inc., a Delaware corporation ("Thane"), Reliant
Interactive Media Corp., a Nevada corporation (the "Corporation"), and Xxxxxxx
Xxxxxxxxxx, an individual residing at ____________________ (the "Executive"),
under the following terms and conditions:
RECITALS:
WHEREAS, on or about December 6, 2001, Thane, Reliant Acquisition
Corporation, a Nevada corporation wholly owned by Thane ("Acquisition"), the
Corporation, and certain controlling stockholders of the Corporation, including
the Executive, entered into an Amended and Restated Agreement and Plan of
Merger (the "Merger Agreement"), pursuant to which (i) Acquisition shall be
merged with and into the Corporation (the "Merger") with the Corporation
surviving such Merger as a wholly owned subsidiary of Thane and (ii) the
stockholders of the Corporation shall receive shares of the common stock of
Thane; and
WHEREAS, the Executive is a stockholder of the Corporation and will
personally derive significant value from the Merger; and
WHEREAS, the Executive and the Corporation entered into that certain
Employment Agreement, dated as of September 9, 2000 (the "Former Contract"),
pursuant to which the Executive was entitled to certain compensation and
benefits; and
WHEREAS, the execution and delivery of this Employment Agreement, as a
new contract to completely supersede the Former Contract, (i) is an inducement
to each of the Corporation and Thane to enter into the Merger Agreement and is
a condition to Thane's consummation of the Merger and (ii) provides significant
consideration to the Executive; and
WHEREAS, the Corporation desires to retain and employ the Executive,
and the Executive desires to be employed by the Corporation on the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, it is hereby covenanted and agreed by the
Corporation and the Executive as follows:
1. Employment Period. The Corporation hereby agrees to employ
the Executive as its _________________________, and the Executive, in such
capacity, agrees to provide services to the Corporation for the period
beginning on the date of the closing of the Merger (the "Commencement Date")
and ending on March 31, 2005 (the "Employment Period").
2. Performance of Duties. The Executive agrees that during the
Employment Period, while he is employed by the Corporation, he shall devote
substantially all of his business time, energies and talents to serving in the
capacity of ___________________________ of the Corporation in the best
interests of the Corporation, and to perform the duties assigned to him by the
Board of Directors of the Corporation (the "Board") faithfully, efficiently and
in a
-13-
professional manner. The Executive shall not, without prior written consent
from the Board (which consent shall not be unreasonably withheld):
(a) serve as or be a consultant to or employee, officer,
agent or director of any corporation, partnership or other entity other than
the Corporation or its affiliates (other than civic, charitable, or other
public service organizations); or
(b) have more than a five percent (5%) ownership
interest in any enterprise other than Thane or its affiliates. Set forth on
Schedule 2(b) attached hereto is a detailed list of the Executive's ownership
interests as of the date hereof.
3. Compensation. Subject to the terms and conditions of this
Employment Agreement, during the Employment Period, while he is employed by the
Corporation, the Executive shall be compensated by the Corporation for his
services as follows:
(a) Base Salary. The Executive shall receive, for each
12-consecutive month period beginning on the Commencement Date and each
anniversary thereof, a rate of salary that is not less than $_______ per year
(the "Base Salary"), payable in substantially equal monthly or more frequent
installments and subject to normal tax withholding. During the Employment
Period the Executive's Base Salary shall be reviewed by the Board on or before
each anniversary of the Commencement Date to determine whether an increase in
the Executive's rate of compensation is appropriate.
(b) Signing Bonus. On the Commencement Date, the
Executive shall be entitled to receive a cash signing bonus in the amount of
$________.
(c) Incentive Bonus. During each year of the Employment
Period the Executive shall, to the extent provided below, be entitled to
receive a cash incentive bonus (the "Incentive Bonus Amount") based on the
Corporation's performance as follows:
(i) If the Corporation's earnings before
interest and income taxes, excluding (A) extraordinary gains and
losses and purchase accounting adjustments, (B) acquisitions of
businesses made after the Commencement Date and (C) the payment of any
Incentive Bonus Amounts ("EBIT"), as determined in accordance with
U.S. generally accepted accounting principles, consistently applied,
as in existence at the date hereof ("GAAP") for the 2002 fiscal year
(the "2002 EBIT") equals or exceeds $7.0 million, the Executive shall
receive an Incentive Bonus Amount equal to 3.33% of the amount by
which the 2002 EBIT exceeds $7.0 million. For purposes of this
Agreement, the term "fiscal year" shall mean, for any given year, the
period beginning on April 1 in such year and ending on March 31 in the
following year.
(ii) If the Corporation's EBIT for the 2003
fiscal year (the "2003 EBIT") equals or exceeds $9.0 million, the
Executive shall receive an Incentive Bonus Amount equal to 3.33% of
the amount by which the 2003 EBIT exceeds $9.0 million.
-14-
(iii) If the Corporation's EBIT for the 2004
fiscal year (the "2004 EBIT") equals or exceeds $12.0 million, the
Executive shall receive an Incentive Bonus Amount equal to 3.33% of
the amount by which the 2004 EBIT exceeds $12.0 million.
(iv) For purposes of this Section 3, if the
Corporation develops or acquires a product for distribution which
product is distributed by Thane through any distribution channel other
than the Corporation's, the parties agree that 50% of Thane's EBIT (as
defined below) generated from the distribution and sale of such
product(s) shall be added to the Corporation's EBIT for the
appropriate year for purposes of calculating the Incentive Bonus
Amount payable to the Executive. For purposes hereof, Thane's EBIT
shall be Thane's earnings before interest and taxes, excluding (A)
extraordinary gains and losses and purchase accounting adjustments (B)
the Corporation's and its subsidiaries' earnings and (C) acquisitions
of businesses made after the Commencement Date as determined in
accordance with GAAP.
(v) Additionally, for purposes of this Section
3, the Corporation's EBIT shall be calculated to include any benefit
resulting from the Corporation using Thane's cost structure.
(vi) The Corporation shall pay any earned
Incentive Bonus Amount within thirty (30) days after completion of its
audited financial statements for the previous fiscal year.
(d) Options. The Executive shall be entitled to receive
the number of options set forth below to purchase shares of Thane common stock
at an exercise price per share of $0.01 (the "Options") based on the
Corporation achieving certain target levels of EBIT as set forth below. Thane
shall, pursuant to its option plan(s), issue any earned Options to the
Executive within thirty (30) days after completion of its audited financial
statements for the previous fiscal year. The Options for each fiscal year shall
not be deemed earned by the Executive unless the Executive is employed by the
Corporation on the last day of the applicable fiscal year unless the Executive
is terminated without cause hereunder, in which case the Executive shall be
entitled to receive Options in accordance with the provisions of Section
5(a)(i) and (ii) herein.
CORPORATION TARGET EBIT
--------------------------------
MINIMUM MAXIMUM
FISCAL YEARS TARGET EBIT TARGET EBIT OPTIONS(2)
------------ ----------- ----------- ----------
2002 $5,000,000 $10,000,000
2003 $6,500,000 $13,000,000
2004 $8,000,000 $16,000,000
---------
(2) DRAFT NOTE: The number of options will be adjusted for any Thane
recapitalization that occurs prior to the effective date of the
employment agreements.
-15-
(i) In the event the Corporation's EBIT equals
or exceeds the Maximum Target EBIT for the fiscal years set forth in
the chart above, the Executive shall be entitled to receive the full
number of Options for such fiscal year. In the event the Corporation's
EBIT equals or exceeds the Minimum Target EBIT but is less than the
Maximum Target EBIT for such fiscal year as set forth in the chart
above, then the Executive shall receive a ratable portion of the
Options for such fiscal year as set forth in the chart above equal to
the applicable number of Options for such period multiplied by the
following fraction: (i) the numerator of which is the Corporation's
EBIT less the Minimum Target EBIT for such fiscal year, and (ii) the
denominator of which is the Maximum Target EBIT less the Minimum
Target EBIT for such fiscal year.
(ii) In the event that any portion of the 2002
Options is not earned pursuant to this Section 3(d), but the 2003 EBIT
exceeds $13.0 million, then the 2003 EBIT in excess of $13.0 million
shall be added to the 2002 EBIT to determine whether the 2002 Options
have been earned by the Executive.
(iii) In the event that any portion of the 2003
Options is not earned pursuant to this Section 3(d), but the 2004 EBIT
exceeds $16.0 million, then the 2004 EBIT in excess of $16.0 million
shall be added to the 2002 EBIT and/or the 2003 EBIT to determine
whether the 2002 and/or the 2003 Options have been earned by the
Executive.
(iv) The Executive and the Corporation hereby
agree that, effective as of the Commencement Date, any Options granted
to the Executive by the Corporation prior to the Commencement Date
shall be deemed to be expired and shall be of no further force and
effect.
(e) The Executive shall be entitled to receive the
following perquisites:
(i) The Corporation shall provide health and
medical insurance for the Executive in a form and program to be chosen
by the Corporation for certain of its executive employees as a group.
Additionally, the Executive shall be provided with vacation and such
other non-cash benefits provided to other similarly situated
executives of Thane.
(ii) The Corporation shall provide the Executive
with directors and officers liability insurance on substantially the
same terms and conditions as other similarly situated executives of
Thane.
(iii) The Corporation shall reimburse the
Executive's current monthly automobile lease payment until the earlier
of (A) the expiration of the Executive's current automobile lease or
(B) the end of the Employment Period, after which time the Corporation
shall provide the Executive with a monthly automobile allowance
consistent with those provided to other similarly situated executives
of Thane.
-16-
(f) The Executive shall be reimbursed by the Corporation
for all reasonable business, promotional, travel and entertainment expenses
incurred or paid by the Executive during the Employment Period in the
performance of his services under this Employment Agreement: (i) provided that
such expenses constitute business deductions from taxable income for the
Corporation and are excludable from taxable income to the Executive under the
governing laws and regulations of the Internal Revenue Code unless otherwise
agreed to by the Corporation's Board of Directors; and (ii) to the extent that
such expenses do not exceed the amounts allocable for such expenses in budgets
that are approved from time to time by the Corporation. In order that the
Corporation reimburse the Executive for such allowable expenses, the Executive
shall furnish to the Corporation, in a timely fashion, the appropriate
documentation required by the Internal Revenue Code in connection with such
expenses and shall furnish such other documentation and accounting as the
Corporation may from time to time reasonably request.
4. Restrictive Covenants. The Executive acknowledges and agrees
that: (i) the Executive has a major responsibility for the operation,
development and growth of the Corporation's business; (ii) the Executive's work
for the Corporation has brought him and will continue to bring him into close
contact with confidential information of the Corporation, Thane and each of
their respective customers; and (iii) the agreements and covenants contained in
this paragraph 4 and in the Merger Agreement are essential to protect the
business interests of the Corporation and Thane and that the Corporation and
Thane would not enter into the Employment Agreement but for such agreements and
covenants. Accordingly, the Executive covenants and agrees to the following:
(a) Confidential Information. Except as may be required
by the lawful order of a court or agency of competent jurisdiction, the
Executive agrees to keep secret and confidential, both during the Employment
Period and indefinitely after the Executive's employment with the Corporation
terminates, all non-public information concerning the Corporation Thane and
each of their respective affiliates that was acquired by, or disclosed to, the
Executive during the course of his employment by the Corporation, including
information relating to customers (including, without limitation, credit
history, repayment history, financial information and financial statements),
costs, and operations, financial data and plans, whether past, current or
planned and not to disclose the same, either directly or indirectly, to any
other person, firm or business entity, or to use it in any way; provided,
however, that the provisions of this paragraph 4(a) shall not apply to
information that: (a) was, is now, or becomes generally available to the public
(but not as a result of a breach of any duty of confidentiality by which the
Executive is bound); (b) was disclosed to the Executive by a third party not
subject to any duty of confidentiality to the Corporation or Thane prior to its
disclosure to the Executive; or (c) is disclosed by the Executive in the
ordinary course of the Corporation's or Thane's business as a proper part of
his employment in connection with communications with customers, vendors and
other proper parties, provided that it is for a proper purpose solely for the
benefit of the Corporation and/or Thane. The Executive further agrees that he
shall not make any statement or disclosure that (i) would be prohibited by
applicable Federal or state laws, or (ii) is intended or reasonably likely to
be detrimental to the Corporation, Thane or any of their respective
subsidiaries or affiliates.
-17-
(b) Non-Competition. The Executive, the Corporation and
Thane agree that reasonable restrictions upon competition with the Corporation
and/or Thane following termination of the Executive's employment with the
Corporation are necessary to protect the business interests of the Corporation
and Thane.
(i) For purposes of the scope of this Section
4(b), the extent of each of the Corporation's and Thane's business
(the "Business") shall be limited to the actual and intended business
of the Corporation and Thane, as demonstrated by each of their books,
records, contracts, advertising, strategic plans and financial and
budget documents, created or relied upon during the Employment Period
and as of the date the Executive leaves the employment of the
Corporation.
(ii) The Executive and Corporation agree that,
for a period commencing on the Commencement Date and ending on the
later of (A) the one (1) year anniversary of the date on which the
Executive's employment with the Corporation is terminated either (x)
for cause, (y) upon the Executive's disability pursuant to Section
5(e) or (z) upon the voluntary resignation of the Executive pursuant
to Section 5(b), or (B) March 31, 2005 (the "Non-Competition Period"),
the Executive shall not serve as or be a consultant to or employee,
officer, agent, director or owner of more than five percent (5%) of
another corporation, partnership or other entity that competes with
the Corporation or Thane in the Business; provided, however, in the
event the Executive's employment with the Corporation is terminated
without cause, the Non-Competition Period shall immediately terminate
if the Corporation (or Thane) does not continue to pay the Executive's
salary pursuant to Section 5(a) hereof.
(iii) That the nature of the television
production business of the Corporation is interstate and international
in scope, that the global scope of the business renders a global
restriction reasonable and a more narrowly tailored geographic
restriction insufficient to protect the legitimate business interests
of the Corporation.
(c) Remedies. If the Executive breaches, or threatens to
commit a breach of any of the provisions contained in paragraphs 4(a) and 4(b)
(the "Restrictive Covenants"), the Corporation and Thane shall have the
following rights and remedies, each of which shall be enforceable, and each of
which is in addition to, and not in lieu of, any other rights and remedies
available to the Corporation and Thane at law or in equity.
(i) The Executive shall account for and pay
over to the Corporation all compensation, profits, and other benefits
which inure to the Executive's benefit which are derived or received
by the Executive or any person or business entity controlled by the
Executive, or his relatives, resulting from any action or transactions
constituting a breach of any of the Restrictive Covenants.
(ii) Notwithstanding the provisions of
subparagraph 4(c)(i) above, the Executive acknowledges and agrees that
in the event of a violation or threatened violation of any of the
Restrictive Covenants, the Corporation and Thane shall have no
adequate remedy at law and shall therefore be entitled to enforce each
such provision by temporary
-18-
or permanent injunction or mandatory relief obtained in any court of
competent jurisdiction without the necessity of proving damages,
posting any bond or other security, and without prejudice to any other
rights and remedies that may be available at law or in equity, and the
Corporation and Thane shall also be entitled to recover its attorneys'
fees and costs incurred to enforce any of the Restrictive Covenants
from the Executive.
(d) Severability. If any of the Restrictive Covenants,
or any part thereof, are held to be invalid or unenforceable, the same shall
not affect the remainder of the covenant or covenants, which shall be given
full effect, without regard to the invalid or unenforceable portions. Without
limiting the generality of the foregoing, if any of the Restrictive Covenants,
or any part thereof, are held to be unenforceable because of the duration of
such provision or the area covered thereby, the parties hereto agree that the
court making such determination shall have the power to reduce the duration
and/or area of such provision and, in its reduced form, such provision shall
then be enforceable.
(e) Proprietary Rights. The Executive acknowledges and
agrees that all know-how, documents, reports, plans, proposals, marketing and
sales plans, client lists, client files, and any materials made by the
Executive or by the Corporation are the property of the Corporation and shall
not be used by the Executive in any way adverse to the Corporation's interests.
The Executive shall not deliver, reproduce or in any way allow such documents
or things to be delivered or used by any third party without specific direction
or consent of the Board. The Executive hereby assigns to the Corporation any
rights which he may have in any such trade secret or proprietary information.
5. Termination and Compensation Due Upon Termination. The
Executive's right to compensation for periods after the date the Executive's
employment with the Corporation terminates shall be determined in accordance
with the following:
(a) Termination Without Cause or Resignation for Good
Cause. In the event the Corporation terminates the Executive's employment under
this Agreement without cause or the Executive resigns for Good Cause pursuant
to Section 5(d),
(i) and for the twelve month period immediately
preceding the effective date of termination the Corporation had net
income, upon the Executive's prior execution of a written release of
any and all claims, including without limitation any claims for lost
wages or benefits, stock options, compensatory damages, punitive
damages, attorneys' fees, equitable relief, or any other form of
damages or relief (excluding claims for amounts which may be payable
pursuant to this Agreement) the Executive may assert against the
Corporation which release shall be mutually agreed upon by the
Corporation and the Executive, (A) the Corporation shall pay the
Executive in accordance with the provisions of paragraph 3 any
compensation and benefits, including any earned Incentive Bonus Amount
and earned Options owed to the Executive through the effective date of
termination, (B) the Executive shall be entitled to receive any
Incentive Bonus Amount if and when earned in accordance with the
provisions of subparagraph 3(c) through the remainder of the
Employment Period, and (C) the Executive shall be entitled to receive
that number of Options, if and when earned in
-19-
accordance with the provisions of subparagraph 3(d) through the
remainder of the Employment Period; or
(ii) for the twelve month period immediately
preceding the effective date of termination the Corporation had net
loss, upon the Executive's prior voluntary execution of a written
release (to be drafted and provided by the Corporation) of any and all
claims, including without limitation any claims for lost wages or
benefits, stock options, compensatory damages, punitive damages,
attorneys' fees, equitable relief, or any other form of damages or
relief (excluding for amounts which may be payable pursuant to this
Agreement) the Executive may assert against the Corporation, (A) the
Corporation shall pay the Executive in accordance with the provisions
of paragraph 3 any compensation and benefits, including any earned
Incentive Bonus Amount and earned Options owed to the Executive
through the effective date of termination, (B) the Executive shall be
entitled to receive any Incentive Bonus Amount if and when earned in
accordance with the provisions of subparagraph 3(c) through the
remainder of the Employment Period, and (C) the Executive shall be
entitled to receive that number of Options, if and when earned in
accordance with the provisions of subparagraph 3(d) through the
remainder of the Employment Period.
(b) Voluntary Resignation. The Executive may terminate
his employment with the Corporation for any reason (or no reason at all) at any
time by giving the Corporation sixty (60) days prior written notice of
voluntary resignation; provided, however, that the Corporation may decide that
the Executive's voluntary resignation be effective immediately upon notice of
such resignation. The Corporation shall have no obligation to make payments of
any kind or grant Options to the Executive in accordance with the provisions of
paragraph 3 for periods after the date on which the Executive's employment with
the Corporation terminates due to the Executive's voluntary resignation.
(c) Termination for Cause. The Corporation shall have no
obligation to make payments of any kind or grant Options to the Executive in
accordance with the provisions of paragraph 3 or otherwise for periods after
the Executive's employment with the Corporation is terminated on account of the
Executive's discharge for cause. For purposes of this paragraph 5, the
Executive shall be considered terminated for "cause" if he is discharged by the
Corporation on account of the occurrence of one or more of the following
events:
(i) the Executive becomes addicted to drugs or
alcohol;
(ii) the Executive discloses confidential
information in violation of paragraph 4(a) or engages in competition
in violation of paragraph 4(b) to the detriment of the Corporation
and/or Thane;
(iii) the Corporation is directed by regulatory
or governmental authorities to terminate the employment of the
Executive or the Executive engages in activities that cause actions to
be taken by regulatory or governmental authorities that have a
material adverse effect on the Corporation;
-20-
(iv) the Executive is convicted of a felony
crime (other than a felony resulting from a minor traffic violation);
(v) the Executive flagrantly and repeatedly
disregards his duties under this Employment Agreement after (A)
written notice has been given to the Executive by the Board that it
views the Executive to be flagrantly disregarding his duties under
this Agreement and (B) the Executive has been given a period of thirty
(30) days after such notice to cure such misconduct. However, no
notice or cure period shall be required if Executive's disregard of
his duties has materially and adversely affected the Corporation
and/or Thane;
(vi) any event of willful misconduct to the
extent that, in the reasonable judgment of the Board, the Executive's
credibility and reputation no longer conform to the standard of the
Corporation's and Thane's executives; or
(vii) the Executive commits an act of fraud
against the Corporation and/or Thane, violates a duty of loyalty to
the Corporation and/or Thane as defined under Florida law or violates
paragraph 2.
(d) Relocation of Executive. In the event that the
Corporation requests the Executive to relocate to an office outside of the
Tampa/St. Petersburg area, the Executive may object to such request in writing
within thirty (30) days of receiving such request. If the Corporation insists
on the Executive relocating outside of the Tampa/St. Petersburg area after
receiving the Executive's written objection to such relocation request, the
Executive may resign for "Good Cause."
(e) Disability. The Corporation shall have no obligation
to make payments to the Executive in accordance with the provisions of
paragraph 3 for periods after the date the Executive's employment with the
Corporation terminates on account of any long-term disability, except payments
due and owing through the effective date of termination. For purposes of this
subparagraph 5(e), long-term disability shall mean any disability that has a
material adverse effect upon the ability of the Executive to perform on a
full-time basis his customary duties hereunder on a full-time basis either in
the judgment of the Executive's doctors or that continues for a period of
ninety (90) days out of any one hundred and fifty (150) day period.
(f) Death. The Corporation shall have no obligation to
make payments to the Executive in accordance with the provisions of paragraph 3
for periods after the date of the Executive's death, except payments due and
owing as of such date including earned salary, bonuses and Options.
6. Successors. This Agreement shall be binding on, and inure to
the benefit of, each of the Corporation and Thane and each of their respective
successors and assigns and any person acquiring, whether by merger,
consolidation, purchase directly or indirectly of all or substantially all of
the Corporation's assets and business, or otherwise.
-21-
7. Nonalienation. The interests of the Executive under this
Agreement are not subject to the claims of his or her creditors, other than the
Corporation, and may not otherwise be voluntarily or involuntarily assigned,
alienated or encumbered except to the Executive's estate upon his or her death.
8. Waiver of Breach. The waiver by either the Corporation and
Thane, on one hand, or the Executive, on the other hand, of a breach of any
provision of this Agreement shall not operate as, or be deemed a waiver of, any
subsequent breach by either the Corporation, Thane, or the Executive.
9. Notice. Any notice to be given hereunder by a party hereto
shall be in writing and shall be deemed to have been given when received or,
when deposited in the U.S. mail, certified or registered mail, postage prepaid:
(a) to the Executive addressed as follows:
Mr. Xxxxxxx Xxxxxxxxxx
---------------------------------
---------------------------------
(b) to the Corporation addressed as follows:
Reliant Interactive Media Corp.
0000 Xxxxx Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention:
Telephone:
Facsimile:
with a copy to:
Thane International, Inc.
00-000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and a copy to:
H.I.G. Capital LLC
0000 Xxxxxxxx Xxx Xxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and a copy to:
White & Case LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-22-
10. Amendment. This Agreement may be amended or canceled by
mutual agreement of the parties in writing without the consent of any other
person and no person, other than the parties hereto (and the Executive's estate
upon his death), shall have any rights under or interest in this Agreement or
the subject matter hereof. The parties hereby agree that no oral conversations
shall be deemed to be a modification of this Agreement and neither party shall
assert the same.
11. Applicable Law. The provisions of this Agreement shall be
construed in accordance with the internal laws of the State of Florida.
12. WAIVER OF JURY TRIAL. THE EXECUTIVE AND THE CORPORATION
EXPRESSLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL CONCERNING ANY CIVIL
ACTION THAT MAY ARISE FROM THIS AGREEMENT, OR THE RELATIONSHIP OF THE PARTIES
HERETO.
13. Termination. All of the provisions of this Agreement shall
terminate after the expiration of the Employment Period, except that paragraph
4(a) shall survive indefinitely, paragraph 4(b) shall terminate upon the
expiration of the Non-Competition Period and paragraph 5(b) shall terminate
upon the expiration of the Employment Period.
* * *
-23-
IN WITNESS WHEREOF, the Executive, the Corporation and Thane have
executed this Employment Agreement as of the day and year first above written.
XXXXXXX XXXXXXXXXX
----------------------------------
RELIANT INTERACTIVE MEDIA CORP.
By:
-------------------------------
Its:
------------------------------
THANE INTERNATIONAL, INC.
By:
-------------------------------
Its:
------------------------------
-24-
FORM OF EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is entered into on ____________ __, 2002 by
and among Thane International, Inc., a Delaware corporation ("Thane"), Reliant
Interactive Media Corp., a Nevada corporation (the "Corporation"), and Xxx
Xxxxxx, an individual residing at 0000 Xxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxx
00000 (the "Executive"), under the following terms and conditions:
RECITALS:
WHEREAS, on or about December 6, 2001, Thane, Reliant Acquisition
Corporation, a Nevada corporation wholly owned by Thane ("Acquisition"), the
Corporation, and certain controlling stockholders of the Corporation, including
the Executive, entered into an Amended and Restated Agreement and Plan of
Merger (the "Merger Agreement"), pursuant to which (i) Acquisition shall be
merged with and into the Corporation (the "Merger") with the Corporation
surviving such Merger as a wholly owned subsidiary of Thane and (ii) the
stockholders of the Corporation shall receive shares of the common stock of
Thane; and
WHEREAS, the Executive is a stockholder of the Corporation and will
personally derive significant value from the Merger; and
WHEREAS, the Executive and the Corporation entered into that certain
Employment Agreement, dated as of September 9, 2000 (the "Former Contract"),
pursuant to which the Executive was entitled to certain compensation and
benefits; and
WHEREAS, the execution and delivery of this Employment Agreement, as a
new contract to completely supersede the Former Contract, (i) is an inducement
to each of the Corporation and Thane to enter into the Merger Agreement and is
a condition to Thane's consummation of the Merger and (ii) provides significant
consideration to the Executive; and
WHEREAS, the Corporation desires to retain and employ the Executive,
and the Executive desires to be employed by the Corporation on the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth below, it is hereby covenanted and agreed by the
Corporation and the Executive as follows:
1. Employment Period. The Corporation hereby agrees to employ
the Executive as its _________________________, and the Executive, in such
capacity, agrees to provide services to the Corporation for the period
beginning on the date of the closing of the Merger (the "Commencement Date")
and ending on March 31, 2005 (the "Employment Period").
2. Performance of Duties. The Executive agrees that during the
Employment Period, while he is employed by the Corporation, he shall devote
substantially all of his business time, energies and talents to serving in the
capacity of ___________________________ of the
-25-
Corporation in the best interests of the Corporation, and to perform the duties
assigned to him by the Board of Directors of the Corporation (the "Board")
faithfully, efficiently and in a professional manner. The Executive shall not,
without prior written consent from the Board (which consent shall not be
unreasonably withheld):
(a) serve as or be a consultant to or employee, officer,
agent or director of any corporation, partnership or other entity other than
the Corporation or its affiliates (other than civic, charitable, or other
public service organizations); or
(b) have more than a five percent (5%) ownership
interest in any enterprise other than Thane or its affiliates. Set forth on
Schedule 2(b) attached hereto is a detailed list of the Executive's ownership
interests as of the date hereof.
3. Compensation. Subject to the terms and conditions of this
Employment Agreement, during the Employment Period, while he is employed by the
Corporation, the Executive shall be compensated by the Corporation for his
services as follows:
(a) Base Salary. The Executive shall receive, for each
12-consecutive month period beginning on the Commencement Date and each
anniversary thereof, a rate of salary that is not less than $__________ per
year (the "Base Salary"), payable in substantially equal monthly or more
frequent installments and subject to normal tax withholding. During the
Employment Period the Executive's Base Salary shall be reviewed by the Board on
or before each anniversary of the Commencement Date to determine whether an
increase in the Executive's rate of compensation is appropriate.
(b) Signing Bonus. On the Commencement Date, the
Executive shall be entitled to receive a cash signing bonus in the amount of
$_________.
(c) Incentive Bonus. During each year of the Employment
Period the Executive shall, to the extent provided below, be entitled to
receive a cash incentive bonus (the "Incentive Bonus Amount") based on the
Corporation's performance as follows:
(i) If the Corporation's earnings before
interest and income taxes, excluding (A) extraordinary gains and
losses and purchase accounting adjustments, (B) acquisitions of
businesses made after the Commencement Date and (C) the payment of any
Incentive Bonus Amounts ("EBIT"), as determined in accordance with
U.S. generally accepted accounting principles, consistently applied,
as in existence at the date hereof ("GAAP") for the 2002 fiscal year
(the "2002 EBIT") equals or exceeds $7.0 million, the Executive shall
receive an Incentive Bonus Amount equal to 3.33% of the amount by
which the 2002 EBIT exceeds $7.0 million. For purposes of this
Agreement, the term "fiscal year" shall mean, for any given year, the
period beginning on April 1 in such year and ending on March 31 in the
following year.
(ii) If the Corporation's EBIT for the 2003
fiscal year (the "2003 EBIT") equals or exceeds $9.0 million, the
Executive shall receive an Incentive Bonus Amount equal to 3.33% of
the amount by which the 2003 EBIT exceeds $9.0 million.
-26-
(iii) If the Corporation's EBIT for the 2004
fiscal year (the "2004 EBIT") equals or exceeds $12.0 million, the
Executive shall receive an Incentive Bonus Amount equal to 3.33% of
the amount by which the 2004 EBIT exceeds $12.0 million.
(iv) For purposes of this Section 3, if the
Corporation develops or acquires a product for distribution which
product is distributed by Thane through any distribution channel other
than the Corporation's, the parties agree that 50% of Thane's EBIT (as
defined below) generated from the distribution and sale of such
product(s) shall be added to the Corporation's EBIT for the
appropriate year for purposes of calculating the Incentive Bonus
Amount payable to the Executive. For purposes hereof, Thane's EBIT
shall be Thane's earnings before interest and taxes, excluding (A)
extraordinary gains and losses and purchase accounting adjustments (B)
the Corporation's and its subsidiaries' earnings and (C) acquisitions
of businesses made after the Commencement Date as determined in
accordance with GAAP.
(v) Additionally, for purposes of this Section
3, the Corporation's EBIT shall be calculated to include any benefit
resulting from the Corporation using Thane's cost structure.
(vi) The Corporation shall pay any earned
Incentive Bonus Amount within thirty (30) days after completion of its
audited financial statements for the previous fiscal year.
(d) Options. The Executive shall be entitled to receive
the number of options set forth below to purchase shares of Thane common stock
at an exercise price per share of $0.01 (the "Options") based on the
Corporation achieving certain target levels of EBIT as set forth below. Thane
shall, pursuant to its option plan(s), issue any earned Options to the
Executive within thirty (30) days after completion of its audited financial
statements for the previous fiscal year. The Options for each fiscal year shall
not be deemed earned by the Executive unless the Executive is employed by the
Corporation on the last day of the applicable fiscal year unless the Executive
is terminated without cause hereunder, in which case the Executive shall be
entitled to receive Options in accordance with the provisions of Section
5(a)(i) and (ii) herein.
CORPORATION TARGET EBIT
--------------------------------
MINIMUM MAXIMUM
FISCAL YEARS TARGET EBIT TARGET EBIT OPTIONS(3)
------------ ----------- ----------- ----------
2002 $5,000,000 $10,000,000
2003 $6,500,000 $13,000,000
2004 $8,000,000 $16,000,000
---------
(3) DRAFT NOTE: The number of options will be adjusted for any Thane
recapitalization that occurs prior to the effective date of the
employment agreements.
-27-
(i) In the event the Corporation's
(ii) EBIT equals or exceeds the Maximum Target
EBIT for the fiscal years set forth in the chart above, the Executive
shall be entitled to receive the full number of Options for such
fiscal year. In the event the Corporation's EBIT equals or exceeds the
Minimum Target EBIT but is less than the Maximum Target EBIT for such
fiscal year as set forth in the chart above, then the Executive shall
receive a ratable portion of the Options for such fiscal year as set
forth in the chart above equal to the applicable number of Options for
such period multiplied by the following fraction: (i) the numerator of
which is the Corporation's EBIT less the Minimum Target EBIT for such
fiscal year, and (ii) the denominator of which is the Maximum Target
EBIT less the Minimum Target EBIT for such fiscal year.
(iii) In the event that any portion of the 2002
Options is not earned pursuant to this Section 3(d), but the 2003 EBIT
exceeds $13.0 million, then the 2003 EBIT in excess of $13.0 million
shall be added to the 2002 EBIT to determine whether the 2002 Options
have been earned by the Executive.
(iv) In the event that any portion of the 2003
Options is not earned pursuant to this Section 3(d), but the 2004 EBIT
exceeds $16.0 million, then the 2004 EBIT in excess of $16.0 million
shall be added to the 2002 EBIT and/or the 2003 EBIT to determine
whether the 2002 and/or the 2003 Options have been earned by the
Executive.
(v) The Executive and the Corporation hereby
agree that, effective as of the Commencement Date, any Options granted
to the Executive by the Corporation prior to the Commencement Date
shall be deemed to be expired and shall be of no further force and
effect.
(e) The Executive shall be entitled to receive the
following perquisites:
(i) The Corporation shall provide health and
medical insurance for the Executive in a form and program to be chosen
by the Corporation for certain of its executive employees as a group.
Additionally, the Executive shall be provided with vacation and such
other non-cash benefits provided to other similarly situated
executives of Thane.
(ii) The Corporation shall provide the Executive
with directors and officers liability insurance on substantially the
same terms and conditions as other similarly situated executives of
Thane.
(iii) The Corporation shall reimburse the
Executive's current monthly automobile lease payment until the earlier
of (A) the expiration of the Executive's current automobile lease or
(B) the end of the Employment Period, after which time the
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Corporation shall provide the Executive with a monthly automobile
allowance consistent with those provided to other similarly situated
executives of Thane.
(f) The Executive shall be reimbursed by the Corporation
for all reasonable business, promotional, travel and entertainment expenses
incurred or paid by the Executive during the Employment Period in the
performance of his services under this Employment Agreement: (i) provided that
such expenses constitute business deductions from taxable income for the
Corporation and are excludable from taxable income to the Executive under the
governing laws and regulations of the Internal Revenue Code unless otherwise
agreed to by the Corporation's Board of Directors; and (ii) to the extent that
such expenses do not exceed the amounts allocable for such expenses in budgets
that are approved from time to time by the Corporation. In order that the
Corporation reimburse the Executive for such allowable expenses, the Executive
shall furnish to the Corporation, in a timely fashion, the appropriate
documentation required by the Internal Revenue Code in connection with such
expenses and shall furnish such other documentation and accounting as the
Corporation may from time to time reasonably request.
4. Restrictive Covenants. The Executive acknowledges and agrees
that: (i) the Executive has a major responsibility for the operation,
development and growth of the Corporation's business; (ii) the Executive's work
for the Corporation has brought him and will continue to bring him into close
contact with confidential information of the Corporation, Thane and each of
their respective customers; and (iii) the agreements and covenants contained in
this paragraph 4 and in the Merger Agreement are essential to protect the
business interests of the Corporation and Thane and that the Corporation and
Thane would not enter into the Employment Agreement but for such agreements and
covenants. Accordingly, the Executive covenants and agrees to the following:
(a) Confidential Information. Except as may be required
by the lawful order of a court or agency of competent jurisdiction, the
Executive agrees to keep secret and confidential, both during the Employment
Period and indefinitely after the Executive's employment with the Corporation
terminates, all non-public information concerning the Corporation Thane and
each of their respective affiliates that was acquired by, or disclosed to, the
Executive during the course of his employment by the Corporation, including
information relating to customers (including, without limitation, credit
history, repayment history, financial information and financial statements),
costs, and operations, financial data and plans, whether past, current or
planned and not to disclose the same, either directly or indirectly, to any
other person, firm or business entity, or to use it in any way; provided,
however, that the provisions of this paragraph 4(a) shall not apply to
information that: (a) was, is now, or becomes generally available to the public
(but not as a result of a breach of any duty of confidentiality by which the
Executive is bound); (b) was disclosed to the Executive by a third party not
subject to any duty of confidentiality to the Corporation or Thane prior to its
disclosure to the Executive; or (c) is disclosed by the Executive in the
ordinary course of the Corporation's or Thane's business as a proper part of
his employment in connection with communications with customers, vendors and
other proper parties, provided that it is for a proper purpose solely for the
benefit of the Corporation and/or Thane. The Executive further agrees that he
shall not make any statement or disclosure that (i) would be prohibited by
applicable Federal or state laws, or (ii) is intended or
-29-
reasonably likely to be detrimental to the Corporation, Thane or any of their
respective subsidiaries or affiliates.
(b) Non-Competition. The Executive, the Corporation and
Thane agree that reasonable restrictions upon competition with the Corporation
and/or Thane following termination of the Executive's employment with the
Corporation are necessary to protect the business interests of the Corporation
and Thane.
(i) For purposes of the scope of this Section
4(b), the extent of each of the Corporation's and Thane's business
(the "Business") shall be limited to the actual and intended business
of the Corporation and Thane, as demonstrated by each of their books,
records, contracts, advertising, strategic plans and financial and
budget documents, created or relied upon during the Employment Period
and as of the date the Executive leaves the employment of the
Corporation.
(ii) The Executive and Corporation agree that,
for a period commencing on the Commencement Date and ending on the
later of (A) the one (1) year anniversary of the date on which the
Executive's employment with the Corporation is terminated either (x)
for cause, (y) upon the Executive's disability pursuant to Section
5(e) or (z) upon the voluntary resignation of the Executive pursuant
to Section 5(b), or (B) March 31, 2005 (the "Non-Competition Period"),
the Executive shall not serve as or be a consultant to or employee,
officer, agent, director or owner of more than five percent (5%) of
another corporation, partnership or other entity that competes with
the Corporation or Thane in the Business; provided, however, in the
event the Executive's employment with the Corporation is terminated
without cause, the Non-Competition Period shall immediately terminate
if the Corporation (or Thane) does not continue to pay the Executive's
salary pursuant to Section 5(a) hereof.
(iii) That the nature of the television
production business of the Corporation is interstate and international
in scope, that the global scope of the business renders a global
restriction reasonable and a more narrowly tailored geographic
restriction insufficient to protect the legitimate business interests
of the Corporation.
(c) Remedies. If the Executive breaches, or threatens to
commit a breach of any of the provisions contained in paragraphs 4(a) and 4(b)
(the "Restrictive Covenants"), the Corporation and Thane shall have the
following rights and remedies, each of which shall be enforceable, and each of
which is in addition to, and not in lieu of, any other rights and remedies
available to the Corporation and Thane at law or in equity.
(i) The Executive shall account for and pay
over to the Corporation all compensation, profits, and other benefits
which inure to the Executive's benefit which are derived or received
by the Executive or any person or business entity controlled by the
Executive, or his relatives, resulting from any action or transactions
constituting a breach of any of the Restrictive Covenants.
-30-
(ii) Notwithstanding the provisions of
subparagraph 4(c)(i) above, the Executive acknowledges and agrees that
in the event of a violation or threatened violation of any of the
Restrictive Covenants, the Corporation and Thane shall have no
adequate remedy at law and shall therefore be entitled to enforce each
such provision by temporary or permanent injunction or mandatory
relief obtained in any court of competent jurisdiction without the
necessity of proving damages, posting any bond or other security, and
without prejudice to any other rights and remedies that may be
available at law or in equity, and the Corporation and Thane shall
also be entitled to recover its attorneys' fees and costs incurred to
enforce any of the Restrictive Covenants from the Executive.
(d) Severability. If any of the Restrictive Covenants,
or any part thereof, are held to be invalid or unenforceable, the same shall
not affect the remainder of the covenant or covenants, which shall be given
full effect, without regard to the invalid or unenforceable portions. Without
limiting the generality of the foregoing, if any of the Restrictive Covenants,
or any part thereof, are held to be unenforceable because of the duration of
such provision or the area covered thereby, the parties hereto agree that the
court making such determination shall have the power to reduce the duration
and/or area of such provision and, in its reduced form, such provision shall
then be enforceable.
(e) Proprietary Rights. The Executive acknowledges and
agrees that all know-how, documents, reports, plans, proposals, marketing and
sales plans, client lists, client files, and any materials made by the
Executive or by the Corporation are the property of the Corporation and shall
not be used by the Executive in any way adverse to the Corporation's interests.
The Executive shall not deliver, reproduce or in any way allow such documents
or things to be delivered or used by any third party without specific direction
or consent of the Board. The Executive hereby assigns to the Corporation any
rights which he may have in any such trade secret or proprietary information.
5. Termination and Compensation Due Upon Termination. The
Executive's right to compensation for periods after the date the Executive's
employment with the Corporation terminates shall be determined in accordance
with the following:
(a) Termination Without Cause or Resignation for Good
Cause. In the event the Corporation terminates the Executive's employment under
this Agreement without cause or the Executive resigns for Good Cause pursuant
to Section 5(d),
(i) and for the twelve month period immediately
preceding the effective date of termination the Corporation had net
income, upon the Executive's prior execution of a written release of
any and all claims, including without limitation any claims for lost
wages or benefits, stock options, compensatory damages, punitive
damages, attorneys' fees, equitable relief, or any other form of
damages or relief (excluding claims for amounts which may be payable
pursuant to this Agreement) the Executive may assert against the
Corporation which release shall be mutually agreed upon by the
Corporation and the Executive, (A) the Corporation shall pay the
Executive in accordance with the provisions of paragraph 3 any
compensation and benefits, including any earned Incentive Bonus Amount
and earned Options owed to the Executive
-31-
through the effective date of termination, (B) the Executive shall be
entitled to receive any Incentive Bonus Amount if and when earned in
accordance with the provisions of subparagraph 3(c) through the
remainder of the Employment Period, and (C) the Executive shall be
entitled to receive that number of Options, if and when earned in
accordance with the provisions of subparagraph 3(d) through the
remainder of the Employment Period; or
(ii) for the twelve month period immediately
preceding the effective date of termination the Corporation had net
loss, upon the Executive's prior voluntary execution of a written
release (to be drafted and provided by the Corporation) of any and all
claims, including without limitation any claims for lost wages or
benefits, stock options, compensatory damages, punitive damages,
attorneys' fees, equitable relief, or any other form of damages or
relief (excluding for amounts which may be payable pursuant to this
Agreement) the Executive may assert against the Corporation, (A) the
Corporation shall pay the Executive in accordance with the provisions
of paragraph 3 any compensation and benefits, including any earned
Incentive Bonus Amount and earned Options owed to the Executive
through the effective date of termination, (B) the Executive shall be
entitled to receive any Incentive Bonus Amount if and when earned in
accordance with the provisions of subparagraph 3(c) through the
remainder of the Employment Period, and (C) the Executive shall be
entitled to receive that number of Options, if and when earned in
accordance with the provisions of subparagraph 3(d) through the
remainder of the Employment Period.
(b) Voluntary Resignation. The Executive may terminate
his employment with the Corporation for any reason (or no reason at all) at any
time by giving the Corporation sixty (60) days prior written notice of
voluntary resignation; provided, however, that the Corporation may decide that
the Executive's voluntary resignation be effective immediately upon notice of
such resignation. The Corporation shall have no obligation to make payments of
any kind or grant Options to the Executive in accordance with the provisions of
paragraph 3 for periods after the date on which the Executive's employment with
the Corporation terminates due to the Executive's voluntary resignation.
(c) Termination for Cause. The Corporation shall have no
obligation to make payments of any kind or grant Options to the Executive in
accordance with the provisions of paragraph 3 or otherwise for periods after
the Executive's employment with the Corporation is terminated on account of the
Executive's discharge for cause. For purposes of this paragraph 5, the
Executive shall be considered terminated for "cause" if he is discharged by the
Corporation on account of the occurrence of one or more of the following
events:
(i) the Executive becomes addicted to drugs or
alcohol;
(ii) the Executive discloses confidential
information in violation of paragraph 4(a) or engages in competition
in violation of paragraph 4(b) to the detriment of the Corporation
and/or Thane;
-32-
(iii) the Corporation is directed by regulatory
or governmental authorities to terminate the employment of the
Executive or the Executive engages in activities that cause actions to
be taken by regulatory or governmental authorities that have a
material adverse effect on the Corporation;
(iv) the Executive is convicted of a felony
crime (other than a felony resulting from a minor traffic violation);
(v) the Executive flagrantly and repeatedly
disregards his duties under this Employment Agreement after (A)
written notice has been given to the Executive by the Board that it
views the Executive to be flagrantly disregarding his duties under
this Agreement and (B) the Executive has been given a period of thirty
(30) days after such notice to cure such misconduct. However, no
notice or cure period shall be required if Executive's disregard of
his duties has materially and adversely affected the Corporation
and/or Thane;
(vi) any event of willful misconduct to the
extent that, in the reasonable judgment of the Board, the Executive's
credibility and reputation no longer conform to the standard of the
Corporation's and Thane's executives; or
(vii) the Executive commits an act of fraud
against the Corporation and/or Thane, violates a duty of loyalty to
the Corporation and/or Thane as defined under Florida law or violates
paragraph 2.
(d) Relocation of Executive. In the event that the
Corporation requests the Executive to relocate to an office outside of the
Tampa/St. Petersburg area, the Executive may object to such request in writing
within thirty (30) days of receiving such request. If the Corporation insists
on the Executive relocating outside of the Tampa/St. Petersburg area after
receiving the Executive's written objection to such relocation request, the
Executive may resign for "Good Cause."
(e) Disability. The Corporation shall have no obligation
to make payments to the Executive in accordance with the provisions of
paragraph 3 for periods after the date the Executive's employment with the
Corporation terminates on account of any long-term disability, except payments
due and owing through the effective date of termination. For purposes of this
subparagraph 5(e), long-term disability shall mean any disability that has a
material adverse effect upon the ability of the Executive to perform on a
full-time basis his customary duties hereunder on a full-time basis either in
the judgment of the Executive's doctors or that continues for a period of
ninety (90) days out of any one hundred and fifty (150) day period.
(f) Death. The Corporation shall have no obligation to
make payments to the Executive in accordance with the provisions of paragraph 3
for periods after the date of the Executive's death, except payments due and
owing as of such date including earned salary, bonuses and Options.
-33-
6. Successors. This Agreement shall be binding on, and inure to
the benefit of, each of the Corporation and Thane and each of their respective
successors and assigns and any person acquiring, whether by merger,
consolidation, purchase directly or indirectly of all or substantially all of
the Corporation's assets and business, or otherwise.
7. Nonalienation. The interests of the Executive under this
Agreement are not subject to the claims of his or her creditors, other than the
Corporation, and may not otherwise be voluntarily or involuntarily assigned,
alienated or encumbered except to the Executive's estate upon his or her death.
8. Waiver of Breach. The waiver by either the Corporation and
Thane, on one hand, or the Executive, on the other hand, of a breach of any
provision of this Agreement shall not operate as, or be deemed a waiver of, any
subsequent breach by either the Corporation, Thane, or the Executive.
9. Notice. Any notice to be given hereunder by a party hereto
shall be in writing and shall be deemed to have been given when received or,
when deposited in the U.S. mail, certified or registered mail, postage prepaid:
(a) to the Executive addressed as follows:
Xx. Xxx Xxxxxx
-----------------------------------
-----------------------------------
(b) to the Corporation addressed as follows:
Reliant Interactive Media Corp.
0000 Xxxxx Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention:
Telephone:
Facsimile:
with a copy to:
Thane International, Inc.
00-000 Xxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and a copy to:
H.I.G. Capital LLC
0000 Xxxxxxxx Xxx Xxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and a copy to:
White & Case LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-34-
10. Amendment. This Agreement may be amended or canceled by
mutual agreement of the parties in writing without the consent of any other
person and no person, other than the parties hereto (and the Executive's estate
upon his death), shall have any rights under or interest in this Agreement or
the subject matter hereof. The parties hereby agree that no oral conversations
shall be deemed to be a modification of this Agreement and neither party shall
assert the same.
11. Applicable Law. The provisions of this Agreement shall be
construed in accordance with the internal laws of the State of Florida.
12. WAIVER OF JURY TRIAL. THE EXECUTIVE AND THE CORPORATION
EXPRESSLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL CONCERNING ANY CIVIL
ACTION THAT MAY ARISE FROM THIS AGREEMENT, OR THE RELATIONSHIP OF THE PARTIES
HERETO.
13. Termination. All of the provisions of this Agreement shall
terminate after the expiration of the Employment Period, except that paragraph
4(a) shall survive indefinitely, paragraph 4(b) shall terminate upon the
expiration of the Non-Competition Period and paragraph 5(b) shall terminate
upon the expiration of the Employment Period.
* * *
-35-
IN WITNESS WHEREOF, the Executive, the Corporation and Thane have
executed this Employment Agreement as of the day and year first above written.
XXX XXXXXX
----------------------------------
RELIANT INTERACTIVE MEDIA CORP.
By:
-------------------------------
Its:
------------------------------
THANE INTERNATIONAL, INC.
By:
-------------------------------
Its:
------------------------------
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