EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into effective as
of the 15th day of September, 1997 between Princeton Media Group, Inc., a
Canadian corporation (the "Company"), and Xxxx Xxxxxxx, an individual resident
of Brooklyn, New York (the "Employee").
WITNESSETH:
WHEREAS, it is the desire of the Company to offer the Employee employment
with the Company upon the terms and subject to the conditions set forth herein;
and
WHEREAS, it is the desire of the Employee to accept the Company's offer of
employment with the Company upon the terms and subject to the conditions set
forth herein.
NOW THEREFORE, in consideration of the premises and mutual covenants,
conditions and agreements contained herein and for such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, each intending to be legally bound hereby, agree as follows:
1. Employment. The Company hereby agrees to employ the Employee and
the Employee hereby agrees to be employed by the Company upon the terms and
subject to the conditions set forth herein for the period of employment as set
forth in Section 2 hereof (the "Period of Employment").
The Employee represents and warrants that he is not party to any agreement, oral
or written, which restricts in any way: (a) his ability to perform his
obligations hereunder; or (b) his right to compete with a previous employer or
such employer's business.
2. Term; Period of Employment. Subject to extension or termination as
hereinafter provided, the Period of Employment hereunder shall be from the date
hereof (the "Effective Date") through the one-year anniversary of the Effective
Date and may be extended by mutual agreement of the parties for additional one-
year terms (the "Renewal Period"). The phrase "Period of Employment" as used
herein shall, unless otherwise indicated, specifically include any extensions
permitted hereunder or provided herein, except as otherwise noted.
3. Office and Duties. During the Period of Employment:
(a) the Employee shall be employed as the Chief Financial Officer
of the Company with the responsibilities reasonably prescribed for such position
by the Board of Directors of the Company (the "Board of Directors") in
accordance with the Bylaws;
(b) the Employee shall devote full time to the business and
affairs of the Company except for vacations, illness or incapacity, as
hereinafter set forth. In consideration of such employment, the Employee agrees
that he shall not, directly or indirectly, individually or as a member of any
partnership or joint venture, or as an officer, director, stockholder, employee
or agent of any other person, firm, corporation, business organization or other
entity, engage in any trade or business activity or pursuit for his own account
or for, or on behalf of, any other person, firm, corporation, business
organization or other entity, if such activity competes, conflicts or interferes
with that of the Company or the performance of the Employee's obligations
hereunder;
(c) the Employee shall report only to the Chairman, President,
and/or Chief Executive Officer of the Company; and
(d) the Employee shall be entitled to vacation time of four weeks
per year.
4. Compensation and Benefits. In exchange for the services rendered by
the Employee pursuant hereto during the Period of Employment, the Employee shall
be compensated as follows:
(a) Compensation. The Company shall pay the Employee compensation
equal to One Hundred Fifty Thousand Dollars ($150,000) per annum ("Annual
Compensation") at a rate of Twelve Thousand Five Hundred Dollars ($12,500) per
month ("Monthly Compensation"). Such salary shall be payable in accordance with
the customary payroll practices of the Company.
(b) Withholding and Employment Tax. Payment of all compensation
hereunder shall be subject to customary withholding tax and other employment
taxes as may be required with respect to compensation paid by an
employer/corporation to an employee.
5. Business Expenses. The Company shall pay or reimburse the Employee
for all reasonable travel or other expenses incurred by the Employee in
connection with the performance of his duties under this Agreement, provided
that the same are previously authorized by the Company, in accordance with such
procedures as the Company may from time to time establish for employees and as
required to preserve any deductions for federal income taxation purposes to
which the Company may be entitled.
6. Disability. The Company shall provide the Employee with
substantially the same disability insurance benefits as those, if any, currently
being provided by the Company, if any, for similar employees. Such benefits
shall commence on the effective date of this Agreement.
7. Death. The Company shall provide the Employee with substantially
the same life insurance benefits as those currently being provided by the
Company for similar employees, if any. Such benefits shall commence on the
effective date of this Agreement. In the event of the Employee's death, the
obligation of the Company to make payments pursuant to Section 4 hereof shall
cease as of the date of such Employee's death and the Company shall pay to the
estate of the Employee any amount due to the Employee under Sections 4 and 5
which has accrued up to the date of death.
8. Other Benefits. The Employee shall be entitled to participate in
fringe benefit, deferred compensation and stock option plans or programs of the
Company, if any, to the extent that his position, tenure, salary, age and other
qualifications make him eligible to participate commensurate with participation
by other employees of the Company, subject to the rules and regulations
applicable thereto, and with respect to non-standard benefits such as deferred
compensation plans, only if such participation is determined by the Board of
Directors in its sole discretion. Such additional benefits may include, but not
be limited to, paid sick leave and individual health insurance (all in
accordance with the policies of the Company) and professional dues and
association memberships. Such benefits shall commence on the effective date of
this Agreement.
9. Termination of Employment. Notwithstanding any other provision of
this Agreement, employment hereunder may be terminated:
(a) By the Company, in the event of the Employee's death or
Disability or for "Just Cause." "Just Cause" shall be defined to be limited to:
(i) theft, embezzlement or fraud by Employee;
(ii) any of the following which continues
unremedied for two months' after written notice to
Employee by Company:
(A) other gross misconduct or gross dishonesty by
Employee which, in the opinion of the Company's Board of
Directors jeopardizes the Company or Employee's ability
to perform in accordance with the terms hereof;
(B) Employee's willful failure to perform, or gross
negligence in the performance of, his duties and
responsibilities to the Company or any material breach
by Employee of this Agreement;
(C) prolonged or repeated absence from duty without
the consent of the Company (for reasons other than the
Employee's health or incapacity).
In the event of termination due to the Employee's death, the Employee's
employment hereunder shall be deemed terminated as of the date of death. In the
event of termination pursuant to subsection (i) above, the Employee's employment
hereunder shall be deemed terminated as of the date of written notice by the
Company to the Employee of the event or circumstance which constitutes "Just
Cause," and such notice shall be given within thirty (30) days after discovery
of the occurrence of an event or circumstance which constitutes "Just Cause."
The Employee shall be deemed to have a "Disability" for purposes of this
Agreement if he is unable to perform, by reason of physical or mental
incapacity, a material portion of his duties or obligations under this Agreement
for a period of ninety (90) consecutive days in any 365-day period. The Board
of Directors shall determine whether and when the Disability of the Employee has
occurred and such determination shall not be arbitrary or unreasonable. The
Company shall give the Employee three months' notice in the event of termination
due to Disability.
(b) By the Employee, upon four months' written notice to the
Company.
10. Non-Competition. Notwithstanding any earlier termination, during
the Period of Employment and thereafter for the lesser of two (2) years, or a
length of time equal to the actual length of the Period of Employment:
(a) the Employee shall not, anywhere in North America directly or
indirectly, individually or as a member of any partnership or joint venture, or
as an officer, director, stockholder, employee or agent of any other person,
firm, corporation, business organization or other entity, participate in, engage
in, solicit or have any financial or other interest in any activity or any
business or other enterprise in any field which at the time of termination is
competitive with the business or is in substantially the same business as the
Company or any affiliate, subsidiary or division thereof (unless the Board of
Directors shall have authorized such activity and the Company shall have
consented thereto in writing), as an individual or as a member of any
partnership or joint venture, or as an officer, director, stockholder, investor,
employee or agent of any other person, firm, corporation, business organization
or other entity. For purposes hereof, "competitive with the business or in
substantially the same business" shall be limited to the business of publishing
(whether print, electronic, or other medium utilized by the Company or any
affiliate, subsidiary or division thereof) in any of the particular niche areas
in which the Company engages or has engaged in during the term of employment
hereunder, in publishing;
(b) the Employee shall not: (i) solicit or induce any employee of
the Company to terminate his employment or otherwise leave the Company's employ;
or (ii) contact or solicit any clients or customers of the Company, either as an
individual or as a member of any partnership or joint venture, or as an officer,
director, stockholder, investor, employee or agent of any other person, firm,
corporation, business organization or other entity.
PROVIDED, however, that none of the provisions of this Section 10 shall apply in
the event of termination of this Agreement or of the Period of Employment which
constitutes a breach by the Company of the terms of this Agreement.
11. Confidential Information. The parties hereto recognize that it is
fundamental to the business and operation of the Company, its affiliates,
subsidiaries and divisions thereof to preserve the specialized knowledge, trade
secrets, and confidential information of the foregoing concerning the field of
advertising, marketing and interactive Internet solutions. The strength and
good will of the Company is derived from the specialized knowledge, trade
secrets, and confidential information generated from experience through the
activities undertaken by the Company, its affiliates, subsidiaries and divisions
thereof. The disclosure of any of such information and the knowledge thereof on
the part of competitors would be beneficial to such competitors and detrimental
to the Company, its affiliates, subsidiaries and divisions thereof, as would the
disclosure of information about the marketing practices, pricing practices,
costs, profit margins, design specifications, analytical techniques, concepts,
ideas, process developments (whether or not patentable), customer and client
agreements, vendor and supplier agreements and similar items or technologies.
By reason of his being an employee of the Company, in the course of his
employment, the Employee has or shall have access to, and has obtained or shall
obtain, specialized knowledge, trade secrets and confidential information such
as that described herein about the business and operation of the Company, its
affiliates, subsidiaries and divisions thereof. Therefore, the Employee hereby
agrees as follows, recognizing and acknowledging that the Company is relying on
the following in entering into this Agreement:
(a) The Employee hereby sells, transfers and assigns to the
Company, or to any person or entity designated by the Company, any and all
right, title and interest of the Employee in and to all creations, designs,
inventions, ideas, disclosures and improvements, whether patented or unpatented,
and copyrightable material, made or conceived by the Employee solely or jointly,
in whole or in part, during or before the term hereof (commencing with the date
of the Employee's engagement as a consultant to the Company) which: (i) relate
to methods, apparatus, designs, products, processes or devices created,
promoted, marketed, distributed, sold, leased, used, developed, relied upon or
otherwise provided by the Company or any affiliate, subsidiary or division
thereof; or (ii) otherwise relate to or pertain to the business, operations or
affairs of the Company or any affiliate, subsidiary or division thereof.
Whether during the Period of Employment or thereafter, the Employee shall
execute and deliver to the Company such formal transfers and assignments and
such other papers and documents as may be required of the Employee to permit the
Company or any person or entity designated by the Company to file, enforce and
prosecute the patent applications relating to any of the foregoing and, as to
copyrightable material, to obtain copyright thereon; and
(b) Notwithstanding any earlier termination, during the Period of
Employment and for a period of one (1) year thereafter, the Employee shall,
except as otherwise required by or compelled by law, keep secret and retain in
strict confidence, and shall not use, disclose to others, or publish any
information, other than information which is in the public domain or becomes
publicly available through no wrongful act on the part of the Employee, which
information shall be deemed not to be confidential information, relating to the
business, operation or other affairs of the Company, its affiliates,
subsidiaries and divisions thereof, including but not limited to confidential
information concerning the design and marketing practices, pricing practices,
costs, profit margins, products, methods, guidelines, procedures, engineering
designs and standards, design specifications, analytical techniques, technical
information, customer, client, vendor or supplier information, employee
information, and any and all other confidential information acquired by him in
the course of his past or future services for the Company or any affiliate,
subsidiary or division thereof. The Employee shall hold as the Company's
property all notes, memoranda, books, records, papers, letters, formulas and
other data and all copies thereof and therefrom in any way relating to the
business, operation or other affairs of the Company, its affiliates,
subsidiaries and divisions thereof, whether made by him or otherwise coming into
his possession. Upon termination of his employment or upon the demand of the
Company, at any time, the Employee shall deliver the same to the Company within
twenty-four (24) hours of such termination or demand.
12. Reasonableness of Restrictions. The Employee hereby agrees that the
restrictions in this Agreement, including without limitation, those relating to
the duration of the provisions hereof and the territory to which such
restrictions apply, are necessary and fundamental to the protection of the
business and operation of the Company, its affiliates, subsidiaries and
divisions thereof, and are reasonable and valid.
13. Reformation of Certain Provisions. In the event that a court of
competent jurisdiction or an arbitrating authority determines that the
non-compete or the confidentiality provisions hereof are unreasonably broad or
otherwise unenforceable because of the length of their respective terms or the
breadth of their territorial scope, or for any other reason, the parties hereto
agree that such court or arbitrating authority may reform the terms and/or scope
of such covenants so that the same are reasonable and, as reformed, shall be
enforceable.
14. Remedies. Other than with respect to terminations governed by
Section 9 hereof, and subject to Section 15 below, in the event of a breach of
any of the provisions of this Agreement, the non-breaching party shall provide
written notice of such breach to the breaching party. The breaching party shall
have thirty (30) days after receipt of such notice in which to cure its breach.
If, on the thirty-first (31st) day after receipt of such notice, the breaching
party shall have failed to cure such breach, the non-breaching party thereafter
shall be entitled to seek damages. It is acknowledged that this Agreement is of
a unique nature and of extraordinary value and of such a character that a breach
hereof by the Employee shall result in irreparable damage and injury to the
Company for which the Company may not have any adequate remedy at law.
Therefore, if, on the thirty-first (31st) day after receipt of such notice, the
breaching party shall have failed to cure such breach, the non-breaching party
shall also be entitled to seek a decree of specific performance against the
breaching party, or such other relief by way of restraining order, injunction or
otherwise as may be appropriate to ensure compliance with this Agreement. The
remedies provided by this section are non-exclusive and the pursuit of such
remedies shall not in any way limit any other remedy available to the parties
with respect to this Agreement, including, without limitation, any remedy
available at law or equity with respect to any anticipatory or threatened breach
of the provisions hereof. In the event of any litigation or other proceeding
between the Company and the Employee with respect to the subject matter of this
Agreement and the enforcement of the rights hereunder, the losing party shall
reimburse the prevailing party for all of his/its reasonable costs and expenses,
as well as any forum fees, relating to such litigation or other proceeding,
including, without limitation, his/its reasonable attorneys' fees and expenses,
provided that such litigation or proceeding results in a final settlement
requiring payment to the prevailing party; or final judgement.
15. Certain Provisions; Specific Performance. In the event of a breach
by the Employee of the non-competition or confidentiality provisions hereof,
such breach shall not be subject to the cure provision of Section 14 above and
the Company shall be entitled to seek immediate injunctive relief and a decree
of specific performance against the Employee. Such remedy is non-exclusive and
shall be in addition to any other remedy to which the Company or any affiliate,
subsidiary or division thereof may be entitled.
16. Consolidation; Merger; Sale of Assets. Nothing in this Agreement
shall preclude the Company from combining, consolidating or merging with or
into, transferring all or substantially all of its assets to, or entering into a
partnership or joint venture with, another corporation or other entity, or
effecting any other kind of corporate combination, provided that, the
corporation resulting from or surviving such combination, consolidation or
merger, or to which such assets are transferred, or such partnership or joint
venture assumes this Agreement and all obligations and undertakings of the
Company hereunder. Upon such a consolidation, merger, transfer of assets or
formation of such partnership or joint venture, this Agreement shall inure to
the benefit of, be assumed by, and be binding upon such resulting or surviving
transferee corporation or such partnership or joint venture, and the term
"Company," as used in this Agreement, shall mean such corporation, partnership
or joint venture, or other entity and this Agreement shall continue in full
force and effect and shall entitle the Employee and his heirs, beneficiaries and
representatives to exactly the same compensation, benefits, perquisites,
payments and other rights as would have been their entitlement had such
combination, consolidation, merger, transfer of assets or formation of such
partnership or joint venture not occurred.
17. Survival. Sections 10 through 15 shall survive the termination for
any reason of this Agreement (whether such termination is by the Company, by the
Employee, upon the expiration of this Agreement by its terms or otherwise);
provided, however, that in the event that the Company ceases to exist and
neither an affiliate, subsidiary or division thereof has assumed, at its option,
the obligations of the Company hereunder, the Employee shall no longer be bound
by the Non-Competition provision set forth in Section 10 hereof.
18. Mitigation of Damages by Employee not Applicable. Regardless of
whether applicable law requires the Employee to mitigate damages in the event of
a breach by the Company of this Agreement, the parties hereby agree that the
amount of any salary or other compensation received by Employee from any other
entity after termination of his employment with the Company shall not offset or
mitigate any damages for which the Company is or becomes liable to Employee in
connection with such breach.
19. Severability. The provisions of this Agreement shall be considered
severable in the event that any of such provisions are held by a court of
competent jurisdiction or an arbitrating authority to be invalid, void or
otherwise unenforceable. Such invalid, void or otherwise unenforceable
provisions shall be automatically replaced by other provisions which are valid
and enforceable and which are as similar as possible in term and intent to those
provisions deemed to be invalid, void or otherwise unenforceable.
Notwithstanding the foregoing, the remaining provisions hereof shall remain
enforceable to the fullest extent permitted by law.
20. Entire Agreement; Amendment. This Agreement contains the entire
agreement between the Company and the Employee with respect to the subject
matter hereof and thereof. This Agreement may not be amended, changed, modified
or discharged, nor may any provision hereof be waived, except by an instrument
in writing executed by or on behalf of the party against whom enforcement of any
amendment, waiver, change, modification or discharge is sought. No course of
conduct or dealing shall be construed to modify, amend or otherwise affect any
of the provisions hereof.
21. Notices. All notices, request, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given when
(a) physically delivered, (b) delivered by express mail or other expedited
service, or (c) mailed, postage prepaid, via first class mail with simultaneous
facsimile transmittal, as follows:
(a) To the Company: Princeton Media Group, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: President
Fax: (000) 000-0000
With an additional copy
by like means to: Xxxxxxx & X'Xxxxx, P.C.
000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. X'Xxxxx, Esq.
Fax: (000) 000-0000
(b) To the Employee: Xx. Xxxx Xxxxxxx
00 Xxxxxx Xxx.
Xxxxxxxx, XX 00000
Fax:
and/or to such other persons and addresses as any party hereto shall have
specified in writing to the other.
22. Assignability. This Agreement shall not be assignable by the
Employee, but shall be binding upon and shall inure to the benefit of his heirs,
executors, administrators and legal representatives. This Agreement shall be
assignable by the Company to any affiliate, subsidiary or division thereof and
to any successor in interest.
23. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New York, without regard to the principles of
conflicts of laws thereof.
24. Waiver and Further Agreement. Any waiver of any breach of any terms
or conditions of this Agreement shall not operate as a waiver of any other
breach of such terms or conditions or any other term or condition hereof, nor
shall any failure to enforce any provision hereof operate as a waiver of such
provision or of any other provision hereof. Each of the parties hereto agrees
to execute all such further instruments and documents and to take all such
further action as the other party may reasonably require in order to effectuate
the terms and purposes of this Agreement.
25. Headings of No Effect. The headings contained in this Agreement are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
26. Arbitration. In the event of any dispute between the parties to
this Agreement regarding the subject matter of this Agreement, such dispute
shall be submitted to binding arbitration at New York, New York in accordance
with the rules of the American Arbitration Association.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PRINCETON MEDIA GROUP, INC.
By: /s/Xxxxx X. XxXxxxxx
Xxxxx X. XxXxxxxx
Chairman
THE EMPLOYEE
/s/Xxxx Xxxxxxx
Xxxx Xxxxxxx
