AMENDED EMPLOYMENT AGREEMENT
THIS AMENDED EMPLOYMENT AGREEMENT, made this ____ day of March, 2006,
by and between Xxxxxx Xxxxx, an individual currently residing at 00000 Xxxxxxx
Xxxx, Xxxx, Xxxxxxx 00000 (the "Executive"), and Medical Media Television, Inc.
(f/k/a PetCARE Television Network, Inc.), a Florida corporation, maintaining
business offices at 0000 Xxxxxxxx Xxxx, Xxxxx X, Xxxxx, Xxxxxxx 00000 (the
"Company").
BACKGROUND INFORMATION
The Company and the Executive are currently parties to an Employment
Agreement, dated June 5, 2002 (the "Original Agreement"). The Company and
Executive desire to amend and replace the Original Agreement in its entirety as
set forth herein (this "Agreement"). Accordingly, the parties agree as follows:
OPERATIVE PROVISIONS
1. Employment and Term.
The Company hereby employs Executive and the latter hereby accepts
employment by the Company for the period commencing March 1, 2006 (the
"Commencement Date") and continuing until terminated by the occurrence of one of
the events described in Section 8 hereof (the "Term").
2. Duties. During the Term of this Agreement, the Executive shall
render to the Company services as President and Chief Executive Officer, and
shall serve in such additional capacities and perform such additional duties
appropriate to his responsibilities and skills as shall be designated by the
Company, through action of its Board of Directors. During the Term, the
Executive shall devote his full business attention, time and energies to the
operations and affairs of the Company and will use his best efforts to promote
the interests and reputations of the Company, provided, however, that the
Executive shall devote no less than 40 hours per week to such duties.
3. Base Compensation. For the services to be rendered by the Executive
under this Agreement the Company shall pay him, while he is rendering such
services and performing his duties hereunder, and the Executive shall accept as
full payment for such services, a base compensation of $150,000, payable in
equal installments of $12,500 per month (the "Base Compensation"). Such Base
Compensation shall be renegotiated at the end of each fiscal year of the Company
during the Term of this Agreement, but Base Compensation shall not be reduced
without the written consent of the Executive, which can be withheld in his sole
and absolute discretion. Additionally, at the discretion of the Board of
Directors, bonuses may be paid to the Executive to reward him for outstanding
service to the Company.
4. Vacation; Fringe Benefits; Reimbursement of Expenses.
During the Term of this Agreement, the Executive shall be entitled to
take such fully paid weeks of vacation as the Company outlines for its
executives. The Executive has full discretion on the timing of his vacation. He
shall not be entitled to receive monetary or other valuable consideration for
vacation time to which he is entitled but does not take.
During his period of employment hereunder, the Executive shall further
be entitled to (a) such leave by reason of physical or mental disability or
incapacity and to such participation in medical and life insurance, pension
benefits, disability and other fringe benefit plans as the Company may make
generally available to its employees from time to time; subject, however, as to
such plans, to such budgetary constraints or other limitations as may be imposed
by the Company from time to time (major medical insurance and long-term
disability policies must be provided to the Executive, whether or not provided
to other employees, and must be in a form as is reasonably acceptable to the
Executive and the Company) and (b) reimbursement for all normal and reasonable
expenses necessarily incurred by him in the performance of his obligations
hereunder, subject to such reasonable substantiation requirements as may be
imposed by the Company. Such expenses shall include, but not be limited to:
a. License fees, membership dues in professional organizations, and
subscriptions to professional journals;
b. The Executive's necessary travel, hotel and entertainment expenses
incurred in connection with overnight, out-of-town trips for educational,
professional or other related meetings or in connection with other events that
contribute to the benefit of the Company;
c. The Executive's necessary travel and entertainment expenses in
connection with in-town events for education, professional and other related
meetings that contribute to the benefit of the Company; and
d. Other expenses as pre-approved;
and (c) the Company shall lease or own the automobile selected and used by the
Executive in the conduct of Executive's business, and the Company shall pay for
all gas, oil, repairs and maintenance, lease payments (if any), installment
purchase payments (if any), allowance for depreciation (if any) and insurance
related to such automobile. In no event shall such amounts exceed in the
aggregate $600.00 per month.
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5. Proprietary Interests.
a. Confidentiality. During or after the expiration of his term of
employment with the Company, the Executive shall not communicate or divulge to,
or use for the benefit of, any individual, association, partnership, trust,
corporation or other entity except the Company, any proprietary or confidential
information of the Company received by the Executive by virtue of such
employment, without first being in receipt of the Company's written consent to
do so; provided that nothing contained herein shall restrict the Executive's use
or disclosure of such information known to the public or known to the Executive
prior to employment by the Company (other than that which he may have disclosed
in breach of this Agreement), or as required by law (so long as the Executive
gives the Company prior notice of such required disclosure).
b. Customer and Employee Information. The Executive acknowledges that
all records with respect to customers serviced by the Company or with respect to
employees of the Company ("Associated Employees) and lists of customers or
proposed customers of the Company, or of Associated Employees, and all personal,
financial or business information concerning the customers or proposed customers
of the Company or of Associated Employees, obtained by the Executive during the
course of the Executive's employment, are valuable and unique and are
proprietary assets of the Company. During the Executive's employment by the
Company and following the termination thereof, the Executive will not at any
time disclose any of the records, lists or information previously described in
this subsection, nor utilize the same for any reason not previously authorized
in writing by the Company.
c. Court Proceedings. In any action or proceeding by the Company
relating to or involving the enforcement of this Section 5, the Executive hereby
waives any and all right to a trial by jury with respect to the action,
proceeding, or other litigation resulting from or involving the enforcement of
this Section 5. Further, in any action or proceeding by the Company to obtain a
temporary restraining order and/or preliminary injunction, the Executive hereby
agrees to waive the necessity of the Company posting an injunction bond in order
to obtain a temporary restraining order and/or preliminary injunction. Should
the Company's action for a temporary restraining order and/or motion for
preliminary injunction be granted in whole or in part and should the Company be
ultimately unsuccessful in obtaining a permanent injunction to enforce the
covenant, the Executive hereby waives any and all rights the Executive may have
against the Company for any injuries or damages, including consequential
damages, sustained by the Executive and arising directly or indirectly from the
issuance of the temporary restraining order and/or preliminary injunction.
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d. Indemnification. The Executive hereby agrees to indemnify and hold
the Company harmless from and against any losses, claims, damages or expenses,
and/or all costs of prosecution or defense of its rights hereunder, whether in
judicial proceedings, including appellate proceedings, or whether out of court,
including without limiting the generality of the foregoing, attorney's fees, and
all costs and expenses of litigation, arising from or growing out of the
Executive's breach or threatened breach of any covenant contained herein. The
Company shall indemnify the Executive to the extent permitted by the Florida
Business Corporation Act.
e. Survival of Covenants. All covenants contained in this Section 5
shall survive the termination of this Agreement.
f. Company Defined. For purposes of this Section 5, the term "Company"
shall include any and all predecessors of the Company.
6. Remedies for Breach of Obligations. The parties agree that the
services of the Executive are of a personal, specific, unique and extraordinary
character and cannot be readily replaced by the Company. They further agree that
in the course of performing his services, the Executive will have access to
various types of proprietary information of the Company, which, if released to
others or used by the Executive other than for the benefit of the Company, in
either case without the Company's consent, could cause the Company to suffer
irreparable and continuing injury. Therefore, the obligations of the Executive
established under Section 5 hereof shall be enforceable by the Company both at
law and in equity, by injunction, specific performance, damages or other remedy;
and the right of the Company to obtain any such remedy shall be cumulative and
not alternative and shall not be exhausted by any one or more uses thereof.
7. Termination of Employment.
a. Death. The Executive's employment hereunder shall terminate in the
event of the Executive's death. In the event of the Executive's death, the
Executive shall be entitled to receive any salary and benefits accrued, vested
and unpaid as of the date of any such termination, as well as one year's Base
Compensation following the date of such termination. Thereafter, the Company
shall be under no further obligation hereunder to the Executive or to his heirs
or personal representatives, and the Executive or his heirs or personal
representatives no longer shall be entitled to receive any payments or any other
rights or benefits under this Agreement.
b. Disability. The Company may terminate the Executive's employment
hereunder if the Executive becomes "Totally and Permanently Disabled" (as
defined below) and remains so for a period of more than twelve months, measured
from the first day of the first calendar month occurring after the beginning of
such disability (the "Disability"). In the event of such Disability, the
Executive shall be entitled to receive any salary and benefits accrued, vested
and unpaid as of the date of any such termination, including all disability
benefits payable thereafter pursuant to any disability insurance policy
maintained by the Company; and upon the Executive's receipt of such salary and
benefits, the Company shall be under no further obligation hereunder to the
Executive, and the Executive no longer shall be entitled to receive any payments
or any other rights or benefits under this Agreement. As used herein, the term
"Totally and Permanently Disabled" means Executive's inability to perform any
substantial duties required of the Executive pursuant to this Agreement.
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c. Termination by the Company for Cause. The Company may terminate the
Executive's employment hereunder for "Cause." For purposes of this Agreement,
"Cause" shall mean any of the following:
i. The Executive's repeated willful misconduct or gross negligence;
ii. The Executive's repeated conscious disregard of his obligations
hereunder or of any other written duties reasonably assigned to him by the Board
of Directors;
iii. The Executive's repeated conscious violation of any provision of
the Company's by-laws or of its other stated policies, standards or regulations;
iv. The Executive's commission of any act involving fraud or moral
turpitude; or
v. A determination by an independent medical practitioner that the
Executive has demonstrated a dependence upon any addictive substance, including
alcohol, controlled substances, narcotics or barbiturates;
provided, however, that if the Board of Directors of the Company desires to
terminate the Executive for any of the reasons set forth in: (1) clause (i),
(ii) or (iii) of this Section 8c., the Company, within the 60 day period
immediately following each alleged commission of a proscribed act or omission,
shall have furnished to the Executive a written description of the allegedly
proscribed act or omission and a statement advising him that the Company views
such conduct as being of the type which could lead to a termination of the
Executive for Cause; (2) clause (ii) or (iii) of this Section 8c., the Board
must be able to demonstrate that the Executive has been furnished with a copy of
the written duty, by-law provision, policy, standard or regulation, the
violation of which the Executive is being accused, at a time prior to the
alleged commission of the violation; or (3) clause (iv) or (v) of this Section
8c., the Board shall first be required to obtain an opinion from Company counsel
to the effect that there is an adequate basis upon which either such
determination may be made. Except for any salary and benefits accrued, vested
and unpaid as of the date of any such termination, the Company shall be under no
further obligation hereunder to the Executive, and the Executive no longer shall
be entitled to receive any payments or any other rights or benefits under this
Agreement.
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d. Termination by the Company Other Than for Cause. The Company may
terminate the Executive's employment hereunder at any time without Cause upon 30
days notice to the Executive, and subject, in either event, to the right of the
Executive, within such notification period, to effect his own "Good Reason"
termination as described in subsection e. below. In the event of either such
termination, the Executive shall be entitled to receive any salary and benefits
accrued, vested and unpaid as of the date of any such termination, as well as,
in the event that the Executive shall have timely effected a Good Reason
termination, those benefits authorized under the provisions of subsection e.;
and following his receipt of such salary and benefits, the Company shall be
under no further obligation hereunder to the Executive, and the Executive no
longer shall be entitled to receive any payments or any other rights or benefits
under this Agreement.
e. Termination by the Executive for Good Reason. Notwithstanding
anything herein to the contrary, the Executive shall be entitled to terminate
his employment hereunder for "Good Reason" without breach of this Agreement. For
purposes of this Agreement, "Good Reason" shall exist upon the occurrence of any
of the following events or matters, in each case without the Company first being
in receipt of the Executive's written consent thereto, and the period of time
within which the Executive shall be required to exercise a Good Reason
termination of service shall be 30 days, measured from the date upon which he is
notified by the Company of such occurrence, or, with respect to the matter
identified in subparagraph iii. below, from the date upon which the Executive
notifies the Company of his belief that a material breach has occurred:
i. A material adverse change in, or a substantial elimination of, the
duties and responsibilities of the Executive;
ii. A material breach by the Company of its obligations hereunder; or
iii. Receipt by the Executive of the Company's notice that it intends
to terminate him other than for Cause.
In the event of a Good Reason termination by the Executive, the
Executive shall be entitled to continue to receive from the Company his Base
Compensation, his total medical insurance package, and all benefits relating to
the use of an automobile as outlined herein, in effect at the time of
termination for a period of five years, payable as provided in Section 3(a).
Except for such continuing entitlement to compensation following any such
termination, and except for any salary and benefits accrued, vested and unpaid
as of the date of any such termination, the Executive no longer shall be
entitled to receive any payments or any other rights or benefits under this
Agreement, and the Company shall have no further obligation hereunder to the
Executive following any such termination.
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f. Termination by the Executive for Other Than Good Reason. The
Executive may terminate his employment hereunder, provided that notice of
termination is provided at least one year before the date of such termination.
In the event of such termination, the Executive shall be entitled to receive any
salary and benefits accrued, vested and unpaid as of the date of any such
termination; and following his receipt of such salary and benefits to the
Company shall be under no further obligation hereunder to the Executive, and the
Executive no longer shall be entitled to receive any payments or any other
rights or benefits under this Agreement.
8. Indebtedness of Executive. If, during the course of his employment,
the Executive becomes indebted to the Company for any reason, the Company shall,
if it so elects, have the right to set-off and to collect any sums due it from
the Executive out of any amounts which it may owe to the Executive for unpaid
compensation. In the event that this Agreement terminates for any reason, all
sums owed by the Executive to the Company shall become immediately due and
payable.
9. Miscellaneous Provisions.
a. Notice: All notices, consents, joinders and other communications
required, permitted or otherwise contemplated hereunder shall be in writing and
shall be considered as properly furnished to the recipient if hand delivered or
sent by first class, certified or express mail, postage prepaid in all cases and
return receipt requested if sent by certified mail; by telegram (with messenger
service specified); by courier services, charges prepaid or billed to the
sender; or by facsimile transmission through the use of telecopier equipment; in
each case to such recipient's published address (or his, her or its published
telecopier or telephone number). If the notice is sent by mail, telegraph or
courier services, it shall be deemed to have been furnished to the recipient
when deposited in the United States mail or with a telegraph office or courier
service for delivery thereto or, in the case of facsimile transmission, when
dispatched. If a recipient's address or telephone or telecopier number is
unpublished, any communication hereunder will be deemed sufficiently furnished
if made to the appropriate address appearing in the preamble hereto or to any
telephone or telecopier number previously furnished by the recipient. Notice of
any change in address or in telephone or telecopier number shall also be
furnished in the manner set forth above. Whenever the furnishing of notice is
required, the same may be waived by the party entitled to receive such notice.
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b. Assignability: Neither this Agreement nor any right or interest
hereunder shall be assignable by the Company or the Executive.
c. Entire Agreement: This Agreement, and any other document referenced
herein, constitute the entire understanding of the parties hereto with respect
to the subject matter hereof, and no amendment, modification or alteration of
the terms hereof shall be binding unless the same be in writing, dated
subsequent to the date hereof and duly approved and executed by each of the
parties hereto.
d. Enforceability: If any term or condition or this agreement shall be
invalid or unenforceable to any extent or in any application, then the remainder
of this agreement, and such term or condition except to such extent or in such
application, shall not be affected thereby and each and every term and condition
of this agreement shall be valid and enforced to the fullest extent and in the
broadest application permitted by law.
e. Application of Law and Venue: This Agreement, and the application or
interpretation thereof, shall be governed exclusively by its terms and by the
laws of the State of Florida. Venue shall be deemed located in Hillsborough
County, Florida.
f. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, or regarding the failure or refusal to
perform the whole or any part of this Agreement shall be settled by arbitration
in Hillsborough County, Florida, in accordance with the rules of the American
Arbitration Association, and the judgment upon the award rendered may be entered
in any court having jurisdiction hereof. Any decision made by an arbitrator or
by the arbitrators under the provision shall be enforceable as a final and
binding decision as it if were a final decision or decree of a court of
competent jurisdiction. Notwithstanding the foregoing, the Company may enforce
its rights pursuant to Section 5 in a court of competent jurisdiction in
Hillsborough County, Florida.
g. Counterparts: This Agreement may be executed by any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
h. Binding Effect: Each of the provisions and agreements herein
contained shall be binding upon and inure to the benefit of the personal
representatives, devisees, heirs, successors, transferees and assigns of the
respective parties hereto.
i. Legal Fees and Costs: If a legal action is initiated by any party to
this Agreement against another, arising out of or relating to the alleged
performance or non-performance of any right or obligation established hereunder,
or any dispute concerning the same, any and all fees, costs and expenses
reasonably incurred by each successful party or his or its legal counsel in
investigating, preparing for, prosecuting, defending against, or providing
evidence, producing documents or taking any other action in respect of, such
action shall be the joint and several obligation of and shall be paid or
reimbursed by the unsuccessful party or parties.
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j. Cancellation of Prior Employment Agreements. The execution of this
Agreement by the Executive shall cancel and nullify all other employment
agreements to which the Executive is a party.
IN WITNESS WHEREOF, the parties have executed this Agreement.
THE COMPANY: EXECUTIVE:
MEDICAL MEDIA TELEVISION, INC.
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
By:/s/Xxxxxx X. Xxxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxxx
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Title: Sr. Vice President/CFO
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