June 7, 2007 Mr. George Hayes
June
7,
2007
Mr.
Xxxxxx Xxxxx
000
Xxxxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Dear
Xxxxxx:
When
executed by you and by Mohen, Inc. d/b/a SpiralFrog, a Delaware Corporation
(the "Corporation"), this document shall constitute an employment agreement
(the
"Agreement") between you and the Corporation, as follows:
1.0
The
Corporation hereby employs you on a full-time basis as Senior Vice President
of
Marketing
and Sales for the term commencing June 7, 2007 for a period of three (3)
years,
unless terminated sooner by either the Corporation or you. You are an employee
at-will
and both the Corporation and you have the right to terminate the employment
relationship
at any time for any lawful reason. This Agreement may be extended if
neither
party gives to the other party notice of non-renewal on or before ninety days
(90) days
prior to the third anniversary hereof, and in that case, the term shall continue
from the
third
anniversary hereof for successive one year periods thereafter unless either
party gives
notice of non-renewal not less than ninety days (90) days prior to the next
succeeding
expiration date, or your employment is terminated sooner.
You
will
be responsible for the marketing and sales of the Corporation. You accept such
employment
and shall devote your entire business time and best efforts to the faithful
performance
of the duties to which you are assigned during the term hereof to the
exclusion
of all other employment or any business activity which involves more than
incidental and occasional use of your time.
Your
performance of services hereunder shall be subject to the direction of the
Chief
Executive Officer. You agree to accept and perform without further consideration
the duties
of
such offices, directorships and titles to which you are elected or named by
the
Corporation.
You shall perform all travel requested by the Corporation or otherwise necessary
in the performance of your responsibilities.
2.0
Compensation: In
consideration of and in full payment for the due and faithful performance
of the services rendered by you hereunder, commencing June 7, 2007, the
Corporation
shall pay you and you agree to accept a base salary at the rate of One
Hundred
Seventy-Five Thousand Dollars ($175,000) per annum; after the Corporation
launches its music services and is receiving United States based revenues for
three (3) months, commencing on the first day of month four (4), the base salary
shall be Two Hundred
Thousand Twenty-Five Dollars ($225,000) per annum. The Corporation shall
pay
the
Executive incentive compensation at the rate of 35% of base salary in each
of
the two
stair-step scenarios, and the Corporation's Compensation Committee shall
determine the
criteria. All incentive compensation shall be payable on the first day of the
second month
of
the next calendar year. There shall be at least an annual review of your
compensation in each subsequent year, no later than the anniversary date of
the
commencement
of the term hereof based on your performance.
Xxxxxx
Xxxxx 00 Xxxxxx Xxxxxx Xxx
Xxxx,
XX 00000 - xxxxxxxxxxxxx.xxx
Payments
to you of salary hereunder shall be made two times per month on the dates
established
by the Corporation. All payments under this Agreement shall be subject to all
deductions
and withholding as required by law and shall be subject to the condition of
your
full
compliance with the terms hereof.
You
shall
be entitled to reimbursement for reasonable expenses incurred by you in
connection with your employment upon presentation of proper vouchers therefore
in accordance
with the usual procedures of the Corporation.
3.0
Additional Compensation — Stock: In
consideration for your commitment to the Corporation
you have been granted Two Hundred Fifty Thousand (250,000) Restricted
Shares/Stock
Options for shares of Common Stock of Mohen, Inc., commencing on June
7,
2007.
4.0
Benefits: You
shall
be entitled to participate in and receive benefits under and in accordance
with the provisions of the Corporation's employee benefit plans or programs
now
or
hereafter in effect that are applicable to you.
You
shall
be entitled to fifteen (15) days annual paid vacation. Unused vacation time
may
not
be carried over to a subsequent year and you will not receive payment for unused
vacation
time.
C
Tprminatinn•
Von
chaff
have no further riohtc hereunder after the date of
termination
and all obligations of the Corporation to provide compensation and benefits
(including,
without limitation, the obligation to pay the base salary and incentive
compensation)
shall cease, effective as of the date of termination, except that any unpaid
base
salary accrued as of such date shall be paid to you accordingly.
6.0
Proprietary Information: For
purposes of this Agreement, "Proprietary Information"
shall mean any information relating to the business of the Corporation that
has
not
previously been publicly released by duly authorized representatives of the
Corporation and shall include (but shall not be limited to) Corporation
information encompassed
in all drawings, designs, plans, proposals and all methods, concepts, and/or
ideas
used in and which have or may have a material importance to the business of
the
Corporation,
including without limitation, computer software and supporting documentation
relating to the website.
a.
You
agree to regard and to preserve as confidential all Proprietary Information
pertaining to the Corporation's business that has been or may be obtained by
you
during your
employment with the Corporation, whether you have such information in your
memory
or
in writing or other physical form.
b.
Upon
termination of your employment hereunder, you shall deliver up to the
Corporation
all proprietary information, including without limitation, all lists of
customers,
correspondence, accounts, records, and any other documents or property made
or
held
by you or under your control in relation to the business affairs of the
Corporation or
its
affiliates, and no copy of any such proprietary information shall be retained
by
you.
7.0
Non Disclosure of Corporation Business Information: In
the
course of your service
to the Corporation, you may be given or have access to certain proprietary
information
relating to the Corporation's business that is not generally known to persons
outside the Corporation. This information may include, but is not limited to,
financial information,
marketing and sales information, customer information (including the
identity
of the Corporation's customers and prospects), product information, and any
information
of any third party that has been provided to the Corporation in confidence.
Such
Corporation business information will not include any information that is (i)
voluntarily
disclosed to the public by the Corporation or by the third party providing
the
information
in confidence to the Corporation, (ii) independently developed and disclosed
by
others, or (iii) otherwise enters the public domain through lawful
means.
8.0
Non-Compete: During
the employment relationship with the Corporation and for a period
of
one year after the termination of such employment, you will not, directly or
indirectly,
as an individual proprietor, partner, stockholder, officer, employee, director,
joint venturer, investor, lender, consultant, agent, or in any other capacity
whatsoever (other
than as the holder of not more than one percent (1%) of the combined voting
power
of
the outstanding stock of a publicly held company) compete with the Corporation
in ad supported free music.
9.0
You
acknowledge that the services to be rendered by you to the Corporation are
of a
special
and unique character and that the restrictions specified in Sections 6.0, 7.0
and 8.0 of
this
Agreement are reasonable and shall survive the termination of your employment.
In
the
event of a breach or threatened breach by you of any of the provisions of either
Sections
6.0, 7.0 or 8.0 of this Agreement, the Corporation shall be entitled to an
injunction
restraining you from the commission of such breach, in addition to all other
remedies
provided at law and equity.
10.0
The
Corporation may assign this Agreement and all its rights hereunder to any
entity
controlling, controlled by, or under common control with the Corporation. You
may
not
at any time assign this Agreement nor any right or interest
hereunder.
11.0
Any
notice required or permitted to be given hereunder shall be in writing and
shall
be
delivered personally to you, the Chief Executive Officer, or the President
of
the Corporation,
or duly mailed to the other party by prepaid registered or certified mail,
return
receipt requested. The address for notices shall be (a) for you, the one set
forth above;
and (b) for the Corporation: MOHEN, INC, d/b/a SpiralFrog, 00 Xxxxxx Xxxxxx,
Xxx
Xxxx,
XX 00000, or such new headquarters address as the Corporation may relocate
to in the future. If any provision of this agreement or the application thereof
shall
for
any reason be invalid or unenforceable, such provision shall be limited only
to
the
extent necessary in the circumstances to make such provision valid or
enforceable and its
partial or total invalidity or unenforceability shall in any event not affect
the remaining provisions
of this agreement, which shall continue in full force and effect.
12.0
This
Agreement shall be construed according to the laws of the State of New York;
constitutes
the entire understanding between the parties, and cannot be changed or
terminated
orally but only by an instrument in writing signed by both parties hereto,
and
cancels
and supersedes all prior oral or written understandings and agreements between
the
parties hereto. The sole jurisdiction and venue for any litigation arising
out
of this Agreement shall be an appropriate federal or state court in the state
of
New York.
If
this
is in agreement with your understanding, kindly so indicate by signing in the
space provided below.
|
MOHEN
INC. d/b/a SpiralFrog
|
||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxx | |
|
Xxxxxxx Xxxxxx |
||
|
Corporate
Secretary
For
the Board of Directors
|
||
ACCEPTED
AND AGREED TO:
| /s/ Xxxxxx Xxxxx | |||
|
Xxxxxx Xxxxx |
|||
Date: 6-8-07 |
