EMPLOYMENT AGREEMENT
Exhibit
10.1
EMPLOYMENT AGREEMENT made as
of the 26th day of
January, 2009, by and between VIBE RECORDS, INC., a Nevada
corporation, with principal offices in Westbury, New York (the "Company"), and
XXXXXXX X. XXXXXX., a
resident of the State of New York ("Executive").
1. Employment. The Company
hereby agrees to employ Executive, and Executive hereby accepts such employment,
upon the terms and conditions set forth in this Agreement.
2. Term. The term of
Executive's employment under this Agreement shall commence on the January
26th, 2009,
(“Effective Date”) and shall terminate on the third anniversary of the Effective
Date (the "Termination Date"); provided that, the term of this Agreement will
automatically renew for successive one-year periods thereafter (in which case
the Termination Date shall be extended accordingly), unless, at least thirty
days prior to the applicable Termination Date, either party gives the other
written notice of non-renewal.
3. Position and Duties.
Executive will serve as the President and Chief Executive Officer of the
Company. Executive shall be elected or appointed a member of the Company's Board
of Directors ("Board") as of the Effective Time, and from and after the
Effective Time until the expiration of the Term, the Company shall nominate the
Executive for appointment or election as a member of the Board and shall use
commercially reasonable efforts to cause the Executive to be appointed or
elected a member of the Board. Executive will report directly to the Board.
Except as otherwise specifically provided herein, the duties which may be
assigned to Executive will be the usual and customary duties of the offices of
president and chief executive officer and will be consistent with the provisions
of the Company's Articles or Certificate of Incorporation, By-laws and
applicable law. At the request of the Board, Executive will serve as an officer
or director of the Company's subsidiaries and other affiliates without
additional compensation. Executive will devote all of his business time and
attention to the performance of his obligations, duties and responsibilities
under this Agreement. Executive may engage in personal, charitable, and passive
investment activities to the extent such activities do not conflict or interfere
with his obligations to, or his ability to perform the duties and
responsibilities of his employment by, the Company hereunder, as determined by
the Board in its discretion.
6.
Employee Benefit Programs and Perquisites.
(b)
Reimbursement of Business Expenses. Executive is authorized to incur
reasonable expenses in carrying out his duties and responsibilities under this
Agreement and the Company will promptly reimburse him for all expenses that are
so incurred upon presentation of appropriate vouchers or receipts, subject to
the Company's expense reimbursement policies applicable to senior executive
officers generally.
(c)
Termination by the Company for Cause or Voluntary Termination by Executive. If
the Company terminates Executive's employment for "Cause" (defined below) or if
Executive terminates his employment voluntarily for any reason before the end of
the then-current Term, Executive will be entitled to receive: (1) his Base
Salary through the date his employment terminates, (2) his pro rata bonus and
(3) the immediate issuance of the Additional Consideration shares which are
issuable under Section 5 of this Agreement but which remain unissued at the time
of the Executives termination by the Company with cause. For purposes of this
Agreement, the Company may terminate Executive's employment for "Cause" if: (1)
Executive is engaged in misconduct which is materially injurious to the Company
or its affiliates; (2) perpetration by Executive of an intentional and knowing
fraud against or affecting the Company or any customer, client, agent or
employee of the Company or any of its affiliates; or (3) Executive's commission
of a felony or a crime involving fraud, dishonesty or moral turpitude. In order
for Executive to terminate his employment voluntarily Executive must provide
sixty (60) calendar days written notice to the Company of such termination
pursuant to Section 18 hereof.
9. Company
Property. All records, files, lists, including computer generated lists,
drawings, documents, equipment and similar items related to the Company's
business that Executive shall prepare or receive from the Company shall remain
the Company's sole and exclusive property. Executive will not copy or cause to
be copied, print out, or cause to be printed out any software, documents or
other materials originating with or belonging to the Company other than in
connection with performing his duties. Upon termination of his employment with
the Company, Executive shall promptly return to the Company all property of the
Company in his possession or control and will not retain in his possession or
control any software, documents or other materials originating with or belonging
to the Company.
10. Intellectual
Property. The Company has hired Executive to work full time so anything
Executive produces during the period of his employment with the Company and
applicable to the business of the Company is the property of the Company. Any
writing, invention, design, system, process, development or discovery conceived,
developed, created or made by Executive, alone or with others, during the period
of his employment with the Company and applicable to the business of the
Company, whether or not patentable, registerable or copyrightable, shall become
the sole and exclusive property of the Company. Executive shall disclose the
same promptly and completely to the Company, and shall, during the period of his
employment with the Company, and any time and from time to time thereafter, (1)
execute all documents reasonably requested by the Company for the purpose of
vesting in the Company the entire right, title and interest in and to the same,
(2) execute all documents reasonably requested by the Company for filing such
applications for and procuring all patents, trademarks, service marks or
copyrights as the Company, in its sole discretion, may desire to prosecute, and
(3) give the Company all assistance it may reasonably require, including the
giving of testimony in any suit, action, investigation or other proceeding, in
order to obtain, maintain, and protect the Company's right therein and thereto.
If such assistance is requested after Executive's employment has terminated, the
Company shall pay Executive reasonable compensation in respect of, and reimburse
Executive for Executive's reasonable expenses incurred in connection with,
rendering such assistance and performing such acts. Executive shall not have or
claim any right, title or interest in any trade name, trademark, copyright or
other similar rights belonging to or used by the Company.
11. Litigation
Assistance. Executive will cooperate with the Company, during the term of
his employment and thereafter by making himself reasonably available to testify
on behalf of the Company or any subsidiary or affiliate of the Company in any
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, and to reasonably assist the Company or any such subsidiary or
affiliate in any such action, suit, or proceeding by providing information and
meeting and consulting with the Board or its representatives or counsel, or
representatives or counsel to the Company or any such subsidiary or affiliate,
as reasonably requested; provided, however, that the same does not materially
interfere with his then current professional activities. The Company will
reimburse Executive for all expenses reasonably incurred by him in connection
with his provision of testimony or assistance.
(a)
If any one or more of the provisions (or portions thereof) of this Agreement
shall for any reason be held by a final determination of a court of competent
jurisdiction to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
(or portions of the provisions) of this Agreement, and the invalid, illegal or
unenforceable provisions shall be deemed replaced by a provision that is valid,
legal and enforceable and that comes closest to expressing the intention of the
parties hereto.
(b)
Without limiting the generality of Section 12(a), to the extent that any court
shall hold that any of the covenants set forth in Section 8 are unenforceable
because they are unreasonable as to scope and/or duration, then the parties
intend that such covenant(s) be reduced in scope and/or duration to the extent
required to be held enforceable.
(c)
Executive confirms and agrees that only a monetary remedy for a breach of any of
the covenants set forth in Section 8 would be inadequate, and may be
impracticable and difficult to prove, and further agrees that any such breach
would cause the Company irrevocable harm and damage. Accordingly, Executive
hereby specifically agrees that Company shall be entitled to temporary and
permanent injunctive relief without the necessity of proving actual damages as a
result of any material breach of Section 8 by Executive.
(a)
Agreement to Arbitrate; Injunctive Relief. THE PARTIES HERETO AGREE THAT ANY
CLAIM, DEMAND, DISPUTE, ACTION OR CAUSE OF ACTION ARISING UNDER OR RELATING TO
THE TERMS OF THIS EMPLOYMENT AGREEMENT, WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE (COLLECTIVELY, THE "PARTIES' DISPUTES"), SHALL BE DECIDED, UNLESS
OTHERWISE SPECIFICALLY INDICATED HEREIN, BY ARBITRATION PURSUANT TO THE NATIONAL
RULES FOR THE RESOLUTION OF EMPLOYMENT DISPUTES OF THE AMERICAN ARBITRATION
ASSOCIATION ("AAA RULES") AS MODIFIED HEREBY, AND THAT ANY PARTY TO THIS
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT INCLUDING
THIS SECTION WITH THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA") AS WRITTEN
EVIDENCE OF THE AGREEMENT OF THE PARTIES TO SO ARBITRATE. THE PARTIES HERETO
ACKNOWLEDGE THAT THEY HAVE HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING
THIS SECTION, THAT THEY FULLY UNDERSTAND ITS TERMS, CONTENT AND EFFECT, AND THAT
THEY VOLUNTARILY AND KNOWINGLY AGREE TO THE TERMS OF THIS SECTION AND AGREE TO
ARBITRATE ALL PARTIES' DISPUTES.
(b)
Any arbitration pursuant to this Agreement shall take place in Long Island, NY,
before a panel of three commercially experienced arbitrators appointed in
accordance with the AAA Rules or, if the parties to the arbitration agree, a
single retired judge. Notice of any demand for arbitration shall be provided in
writing to the other party and to the AAA (the "Arbitration Notice"). For the
purposes of this Agreement, an arbitration shall be deemed to have been
commenced at such time as the Arbitration Notice has been delivered to all the
other parties pursuant to the provisions hereof. The parties shall be entitled
to discovery in conjunction with such arbitration (with the scope of discovery
to be co-extensive with discovery rights applicable to an arbitration pursuant
to New York Code of Civil Procedure.). Any award rendered by the arbitrators
(or, if applicable, retired judge) shall be final and may be enforced in the
Superior Court for the State of New York. Each party shall pay half of the fees
and expenses of the arbitrators.
14.
Indemnification. To the extent permitted by its Certificate of
Incorporation and By-laws and subject to applicable law, the Company will
indemnify, defend and hold Executive harmless from and against any claim,
liability or expense (including reasonable attorneys' fees) made against or
incurred by Executive as a result of his employment with the Company or any
subsidiary or other affiliate of the Company, including service as an officer or
director of the Company or any subsidiary or other affiliate of the
Company.
15. Assignment; Binding
Nature. The services and duties to be performed by Executive hereunder are
personal and may not be assigned. This Agreement shall be binding upon and inure
to the benefit of the Company, its successors and assigns and Executive and his
heirs and representatives.
16. No Impediment to
Agreement. Executive covenants that except as otherwise disclosed herein,
he is not, as of the date hereof, and will not be, during the period of his
employment hereunder, employed under contract, oral or written, by any other
person, firm or entity, and is not and will not be bound by the provisions of
any other restrictive covenant or confidentiality agreement, and is not aware of
any other circumstance or condition (legal, health or otherwise) which would
constitute an impediment to, or restriction upon, his ability to enter into this
Agreement and to perform the duties and responsibilities of his employment
hereunder.
17. Amendment or Waiver. No
provision in this Agreement may be amended unless such amendment is agreed to in
writing and signed by Executive and an authorized officer of the Company. Except
as set forth herein, no delay or omission to exercise any right, power or remedy
accruing to any party shall impair any such right, power or remedy or shall be
construed to be a waiver of or an acquiescence to any breach hereof. No waiver
by either party of any breach by the other party of any condition or provision
contained in this Agreement to be performed by such other party shall be deemed
a waiver of a similar or dissimilar condition or provision at the same or any
prior or subsequent time. Any waiver must be in writing and signed by Executive
or an authorized officer of the Company, as the case may be.
18. Survivorship. The
respective rights and obligations of the parties hereunder shall survive any
termination of Executive's employment to the extent necessary to the intended
preservation of such rights and obligations.
19. Governing Law. This Agreement shall
be governed by, construed and interpreted in accordance with the laws of New
York.
20. Notices. Any notice given
to a party shall be in writing and shall be deemed to have been given when
delivered personally or sent by certified or registered mail, postage prepaid,
return receipt requested, or express mail to the recipient at his or its last
known address.
21. Withholding. Employer may
deduct and withhold from the payments to be made to Employee hereunder any
amounts required to be deducted and withheld by Employer under the provisions of
any statute, law, regulation or ordinance now or hereafter enacted.
22. Entire Agreement.
This Agreement contains the entire understanding and agreement between
the parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between the parties with respect thereto.
IN WITNESS WHEREOF, the
undersigned have executed this Agreement on the date first above
written.
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By:
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/s/Xxx Xxxxxx
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Xxx
Xxxxxx
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President
and CEO
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Date:
January 26th
2009
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By:
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/s/Xxx Xxxxxx
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Xxx
Xxxxxx
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President
and CEO
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Date:
January 26th
2009
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