EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 15th day of November 2002, by and between
MediaBay, Inc., a Florida corporation, with offices at 0 Xxxxxxxxx Xxxxxx, Xxxxx
Xxxxxx, Xxx Xxxxxx (the "Company"), and Xxxx Xxxx residing at 000 Xxxxxx Xxxx,
Xxxxx Xxxxxx, Xxx Xxxxxx 00000 (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the audio book club, old time radio and
spoken audio digital download businesses; and
WHEREAS, the Company desires to employ the Executive; and
WHEREAS, the Executive is willing to commit himself to serve and to
establish a minimum period during which he will serve the Company on the terms
and conditions herein provided.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained and intending to be
legally bound hereby, the parties agree as follows:
1. Recitals. The Whereas clauses recited above are hereby incorporated by
reference as though they were fully set forth herein.
2. Employment. The Company shall employ the Executive and the Executive
shall serve the Company, on the terms and conditions set forth herein.
3. Term. The employment of the Executive by the Company as provided in
Section 2 shall commence on November 15, 2002 and end on November 14, 2004 (the
"Term"), subject, however, to the termination provisions contained herein.
4. Position and Duties. The Executive shall be employed by the Company as
Co-Chairman of the Company and, if the Company's current Chairman resigns or no
longer serves in such capacity, as Chairman of the Company. His power and
authority shall be and remain subject to the direction and control of the Board
of Directors. The Executive shall have general strategic oversight of the
business and affairs of the Company. During the Term, the Executive shall be
required to devote a minimum of 20 hours per week (determined by averaging the
number of hours devoted over any fiscal quarter) in the performance of his
duties and the Company's and its subsidiaries' business and affairs.
5. Compensation and Related Matters.
(a) Salary. During the Term of this Agreement, the Company shall pay
to the Executive, as compensation for his services while employed by the
Company, an annual salary of
$135,000 in equal semi-monthly installments in arrears on the 15th and last day
of each month during the first twelve months of the Term of this Agreement.
(b) Expenses. The Executive shall be entitled to receive prompt
reimbursement for all reasonable travel and business expenses in connection with
services performed hereunder in accordance with normal Company policy, as the
same may be determined from time to time.
(c) Stock Options. The Executive will receive stock options to
acquire Five Hundred Seventy Thousand (570,000) shares of Common Stock in the
Company pursuant to and in accordance with the Company's 2001 Stock Incentive
Plan. Options with respect to Two Hundred Eighty Five Thousand (285,000) shares
shall immediately vest and be exercisable commencing one (1) year from the date
of this Agreement and expires on the six (6) year anniversary of the date of
this Agreement at a price per share of $1.25; options with respect to Two
Hundred Eighty Five Thousand (285,000) shares shall immediately vest and be
exercisable commencing two (2) years from the date of this Agreement and expire
on the seven (7) year anniversary of the date of this Agreement at a price per
share equal to $3.25. Such options will be on the terms and conditions as more
specifically provided for in the Company's Stock Option Plan and a Stock Options
Agreement dated as of the date hereof between the Company and the Executive in
the form of Exhibit A hereto.
(d) Registration Statement. The Company will file with the
Securities and Exchange Commission a registration statement on Form S-8 on or
before November 14, 2003 covering the shares of Common Stock issuable upon the
exercise of the stock options granted to the Executive pursuant to Section 5(c)
above.
6. Termination by the Company or the Executive. The Executive's employment
hereunder may be terminated by the Company or the Executive without any breach
of this Agreement under the circumstances described below.
(a) Death. The Executive's employment hereunder shall terminate upon
his death.
(b) Disability. If, as a result of the Executive's incapacity due to
physical or mental illness, the Executive shall have been absent from or unable
to perform his duties hereunder for a consecutive period of sixty (60) days and
after notice of termination is given (which may be given before or after the end
of such sixty (60) day period but which will in no event be effective until, at
the earliest, the day following the sixtieth day of the period) shall not have
returned to the performance of his duties hereunder, as that concept is
contemplated in this Agreement, within ten (10) days after the notice of
termination is given, the Company may terminate the Executive's employment
hereunder.
(c) Cause. The Company, in its sole discretion, may terminate the
Executive's employment under this Agreement at any time for "Cause". For
purposes of this Agreement, the term "Cause" shall mean one or more of the
following: (i) gross negligence or gross misconduct of the Executive, (ii)
failure by the Executive to perform his duties, as contemplated by this
Agreement, which failure is not cured within thirty (30) days after written
notice is given to the Executive by the Company, (iii) conduct which constitutes
a crime or offense involving breach of professional ethics, misuse or
misappropriation of money or other property, moral turpitude, a felony of any
type or
2
alcohol or drug abuse, or (iv) the Executive's material breach of this
Agreement, which breach is not cured within thirty (30) days after written
notice is given to the Executive by the Company, except that Executive shall not
have an opportunity to cure a breach of Section 7 of this Agreement. The
termination shall be evidenced by written notice thereof to the Executive.
(d) Early Termination. Executive's employment under this Agreement
shall automatically terminate on November 14, 2003 unless, prior to such date,
the Company's Board of Directors, by the affirmative vote of at least 75% of the
number of directors comprising the Board of Directors (provided that the
Executive's vote shall not be counted as an affirmative vote), shall determine
that the Executive's employment shall continue until the expiration of the Term.
(e) Without Cause. In addition to any other rights the Company has
to terminate the Executive's employment under this Agreement, the Company may,
at any time, by a vote of not less than fifty percent (50%) of the directors
then in office (excluding the vote of the Executive if he is also a director),
terminate the Executive Without Cause upon twenty (20) days' prior written
notice to the Executive. For purposes of this Agreement, the term "Without
Cause" shall mean termination by the Company on any grounds other than those set
forth in Sections 6(a), (b) or (c) hereof.
(f) Executive Termination. The Executive may terminate his
employment hereunder for any reason upon thirty (30) days prior written notice
to the Company.
(g) Good Reason. The Executive may terminate his employment
hereunder for Good Reason upon thirty (30) days prior written notice to the
Company, provided that the Executive must first give the Company written notice,
setting forth in reasonable detail the alleged basis for resignation for Good
Reason (defined below), and the Company shall thereupon have the right to cure
such Good Reason within such thirty (30)-day period. If the Good Reason is of a
non-monetary nature and the Company has commenced the cure within the thirty
(30)-day period, it will have an additional thirty (30)-day period to cure.
Termination by the Executive of the Executive's employment for "Good Reason"
shall mean termination by the Executive based on one or more of the following:
(i) without the Executive's consent, a material reduction made by the Company in
the Executive's functions, duties or responsibilities, (ii) without the
Executive's consent, the Company requires the Executive to work in an office on
a permanent basis which is more than 35 miles from the location of the Company's
current principal executive office (unless such relocation is to a location
closer to the Executive's residence), it being understood that travel to another
city to work in an office, on a non-permanent basis, of a subsidiary or
affiliate of the Company or of a company acquired by, merged with or transferred
to the Company is not considered relocation to work on a permanent basis, as
such pertains to this paragraph or (iii) the Company's material breach of this
Agreement; provided however, that any actions taken by the Company to
accommodate a disability of the Executive or pursuant to the Family and Medical
Leave Act shall not be a "Good Reason" for purposes of this Agreement.
(h) Severance Pay. In the event that (i) the Company has terminated
the Executive's employment under this Agreement "Without Cause" within six
months following a "Change of Control" (defined below) or (ii) the Executive has
resigned for "Good Reason", then the Executive will be entitled to receive
severance pay equal to the lesser of (A) the balance of his base salary for the
unexpired period of his two (2) year employment Term, payable to the Executive
in equal semi-
3
monthly payments at Executive's regular pay rate immediately prior to the
termination until such amount is paid in full, or (B) one (1) year base salary,
payable to the Executive in equal semi-monthly payments at Executive's regular
pay rate immediately prior to the termination, resignation or Change of Control
over the following one (1) year. In the event of any other termination of
Executive's employment, then the Company shall pay to the Executive (a) the
balance of his accrued and unpaid annual salary through the date of termination
and (b) any unreimbursed expenses approved by the Company.
(i) Change of Control. For purposes of this Agreement, a Change of
Control" shall be deemed to occur, unless previously consented to in writing by
the Executive, and only if the Executive is not offered continued employment
under terms substantially similar to this Agreement, upon (i) the actual
acquisition of fifty percent (50%) or more of the voting securities of the
Company by any company or entity or affiliated group of companies or entities
(other than pursuant to a bona fide underwriting agreement relating to a public
distribution of securities of the Company) not affiliated with the Executive or
Xxxxxx Xxxxxxx and/or any of their affiliates or family members, (ii) the
completion of a tender or exchange offer for more than fifty percent (50%) of
the voting securities of the Company by any company or entity or affiliated
group of companies or entities not affiliated with the Executive or Xxxxxx
Xxxxxxx, (iii) the completion of a proxy contest against the management for the
election of a majority of the Board of Directors of the Company if the group
(other than a group which includes Xxxxxx Xxxxxxx and/or any of his affiliates
or family members) conducting the proxy contest owns, has or gains the power to
vote at least fifty percent (50%) of the voting securities of the Company, or
(iv) a merger or consolidation in which the Company is not the surviving entity
or a sale of all or substantially all of the assets of the Company.
7. Non-Competition and Confidentiality Covenant.
(a) During the Term of this Agreement and for a period of two (2)
years immediately following the termination of his employment, whether said
termination is occasioned by the Company, the Executive or a mutual agreement of
the parties, the Executive shall not, for himself or on behalf of any other
person, persons, firm, partnership, corporation or company, (i) engage or
participate in any activities which are competitive with the Company, and its
subsidiaries including the audiobook, old-time radio and spoken audio digital
download businesses and any businesses which are acquired by, merged with or
transferred to the Company (the "Business"), (ii) solicit or attempt to solicit
the business or patronage of any person, firm, corporation, company or
partnership, which had previously been a customer, consultant or employee of the
Company or its subsidiaries, for the purpose of engaging in the Business or
(iii) solicit, engage or hire any individual who is then employed or was
employed by the Company or its subsidiaries or is then a consultant or was a
consultant for the Company or its subsidiaries.
(b) The Executive acknowledges and agrees that: all mailing lists;
customer, member and prospect names; license or arrangement; front-end and
back-end marketing performance; financial statements; operating system, database
and other computer software, specific to the Company or its subsidiaries; and
all information which is known by the Executive to be subject to a
confidentiality agreement or obligation of confidentiality, even without a
confidentiality agreement between the Company or a subsidiary of the Company and
another person or party, shall be maintained by the Executive in a confidential
manner and the Executive agrees that the Executive
4
will not use such information to the detriment of the Company and its
subsidiaries or disclose such information to any third party, except as may be
necessary in the course of performing the Executive's job responsibilities. The
Executive further agrees that these obligations of confidentiality with respect
to such information shall continue after the Executive ceases to be employed by
the Company. Disclosure of the aforementioned information shall not be
prohibited if such disclosure is directly pursuant to a valid and existing order
of a court or other governmental body or agency within the United States;
provided, however, that (i) the Executive shall first have given prompt notice
to the Company of any such possible or prospective order (or proceeding pursuant
to which any such order may result), (ii) the Company shall have been afforded a
reasonable opportunity to review such disclosure and to prevent or limit any
such disclosure, and (iii) the Executive shall, if requested by the Company and
at the Company's cost and expense, use his best efforts to prevent or limit any
such disclosure by means of a protective order or a request for confidential
treatment. Confidential information shall not include information generally
available to the public.
8. Indemnification. To the maximum extent permitted under the corporate
laws of the State of Florida, (a) the Executive shall be indemnified and held
harmless by the Company, as provided under such corporate laws for any and all
actions taken or matters undertaken, directly or indirectly, in the performance
of his duties and responsibilities under this Agreement or otherwise on behalf
of the Company, provided the Executive did not act wantonly or recklessly or was
not grossly negligent or engaged in willful misconduct, and (b) without limiting
clause (a), the Company shall indemnify and hold harmless the Executive from and
against (i) any claim, loss, liability, obligation, damage, cost, expense,
action, suit, proceeding or cause of action (collectively, "Claims") arising
from or out of or relating to the Executive's acting as an officer, director,
employee or agent of the Company or any of its affiliates or in any other
capacity, including, without limitation, any fiduciary capacity, in which the
Executive serves at the request of the Company, and (ii) any cost or expense
(including, without limitation, fees and disbursements of counsel)
(collectively, "Expenses") incurred by the Executive in connection with the
defense or investigation thereof. If any Claim is asserted or other matter
arises with respect to which the Executive believes in good faith the Executive
is entitled to indemnification as contemplated hereby, the Company shall, at its
election, to be determined in its sole and absolute discretion, either assume
the defense or investigation of such Claim or matter or pay the Expenses
incurred by the Executive in connection with the defense or investigation of
such Claim or matter, when and as incurred, provided that the Executive shall
reimburse the Company for such amounts, plus simple interest thereon at the then
current Prime Rate as in effect from time to time, compounded annually, if the
Executive shall be found, as finally judicially determined by a court of
competent jurisdiction, not to have been entitled to indemnification hereunder.
9. Binding Agreement. This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. In addition, this Agreement and the
obligations and rights of the Company hereunder shall be binding on any person,
firm or corporation which is a successor-in-interest to the Company.
10. Notice. For the purpose of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been
5
duly given when delivered personally, or the next business day if sent by
private overnight courier, or on the third business day after being mailed by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive: To the address at the head of this Agreement
If to the Company: MediaBay, Inc.
0 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
or to such other address as the parties may furnish to each other in writing.
Copies of all notices, demands and communications shall be sent to the home
addresses of all members of the Board of Directors of the Company.
11. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New Jersey (except that the corporate laws of the State
of Florida shall be applicable with respect to Section 8 hereof) and any action
brought by either party shall be commenced in the courts of the State of New
Jersey. The Executive and the Company hereby irrevocably and unconditionally
consent to submit to the exclusive jurisdiction of the courts of the State of
New Jersey and the United States of America located in Xxxxxx County and Essex
County, New Jersey for any and all actions, suits or proceedings arising out of
or resulting from or relating to this Agreement and the transactions
contemplated hereby and the parties agree not to commence any action, suit or
proceeding relating thereto except in such courts. The parties hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any such action, suit or proceeding arising out of, resulting from or relating
to this Agreement or the transactions contemplated hereby in such courts and
hereby further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that such action, suit or proceeding brought in any such
court has been brought in any inconvenient forum.
12. Miscellaneous
(a) No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by the parties hereto, provided, however, that this Agreement may be
modified, waived or discharged by mutual agreement in writing. Any (i) amendment
or modification to this Agreement or other action taken by the Corporation
(including entering into a new agreement), in either case, which increases the
compensation payable to the Executive, as salary, bonus or otherwise, or
provides for the grant of any stock option, restricted stock award, deferred
stock award or other stock-based award to the Executive or (ii) or amendment,
modification, waiver, termination or cancellation of this Section 12(a), must be
approved by (a) the affirmative vote of the compensation committee of the Board
of Directors of the Company and (b) the affirmative vote of at least 75% of the
number of directors comprising the Board of Directors (provided that the
Executive's vote shall not be counted as an
6
affirmative vote). Notwithstanding any termination of this Agreement, this
Section 12(a) shall not be terminated unless expressly provided for in such
termination.
(b) No delay, waiver, omission or forbearance (whether by conduct or
otherwise) by any party hereto at any time to exercise any right, option, duty
or power arising out of breach or default by the other party of any of the
terms, conditions or provisions of this Agreement to be performed by such other
party shall constitute a waiver by such party or a waiver of such party's rights
to enforce any right, option or power as against the other party or as to
subsequent breach or default by such other party, and no explicit waiver shall
constitute a waiver of similar or dissimilar terms, provisions or conditions at
the same time or at any prior or subsequent time.
13. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
14. Counterparts; Facsimile Signatures. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument. Facsimile
signatures shall be effective and binding as originals.
15. Entire Agreement. This Agreement contains the entire understanding of
the Company and the Executive with respect to his employment by the Company.
This Agreement supersedes all prior agreements and understandings whether
written or oral between the Executive and the Company, and there are no
restrictions, agreements, promises, warranties or covenants other than those
stated in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
shown below effective as of the date first written above.
"COMPANY"
Date Signed: November 15, 2002 MEDIABAY, INC., a Florida
corporation
By: /s/ Xxxx X. Xxxx
----------------------------
Printed Name: Xxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
"EXECUTIVE"
Date Signed: November 15, 2002 /s/ Xxxx Xxxx
--------------------
Xxxx Xxxx
7
