Exhibit 10.4
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, (the "Agreement")is entered into as of the 6th day of
July, 1999, ("Effective Date"), by and between THE ENTERTAINMENT INTERNET, INC.,
a Nevada corporation, (the "Employer") and Xxxxxxx Xxxxx (the "Employee")
ARTICLE I
DUTIES
Employer agrees to employ Employee primarily in the capacity of Chairman of the
Board for Employer. As Chairman of the Board, Employee shall be primarily
responsible for overall operational control of Employee. Employee hereby
warrants and represents that Employee has the qualifications and experience to
duly undertake and perform such primary duties in the employment generally as
contemplated in the Agreement. Employee expressly understands that Employee may
be required to perform such other duties and to work in such other capacities as
Employer may deem necessary or advisable and as may be assigned to Employee from
time to time by Employer. Employee agrees to duly undertake and perform all such
work as may be required by the positions assigned to Employee and to serve
Employer faithfully, diligently and to the best of his ability. Employee agrees
during the term of this Agreement to devote his best efforts, attention, energy
and skill to the performance of his employment duties and to furthering the
interests of Employer. Employee shall be subject to the oversight of and report
to the Board of Directors.
ARTICLE II
Employee's employment under this Agreement shall commence on July 6, 1999, or
such other time as the parties may mutually agree and continue through July 6,
2002, constituting three years (the "Contract Period"), unless sooner terminated
as hereinafter provided, Employee shall faithfully keep and observe all of the
rules which may be prescribed from time to time by the Employer or by any
political, governmental, or other authority, for the conduct, whether personal
or in the line of duty, of employees and other persons in and about the area of
employment.
THIS AGREEMENT SHALL ONLY COMMENCE UPON EVIDENCE THAT THE COMPANY HAS OBTAINED
ADEQUATE DIRECTORS AND OFFICERS LIABILITY INSURANCE.
ARTICLE III
AREA OF EMPLOYMENT
Employee's first assignment is expected to be in all states, but due to the
nature of the work, Employer shall have the right to change the area to which
Employee is assigned hereinafter sometimes called the Area of Employment at any
time and from time to time during the term of this Agreement. However, Employee
resides in Los Angeles and shall not be required to change residence or to
travel frequently to other areas.
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ARTICLE IV
COMPENSATION
4.1 Employer shall pay Employee an annual salary for 1999 of One Hundred Fifty
Thousand Dollars (pro-rated), for 2000 of Two Hundred Thousand Dollars and
for 2001 and thereafter, Two Hundred Fifty Thousand Dollars per annum.
This salary will be paid by Employer to Employee in semi-annual
installment payment, less taxes payable. If Employer does not have the
funds available to make salary payments to Employee. the Board of
Directors of Employer shall make the payments in stock or options as
determined in their sole discretion.
4.2 Employer may, at its option, pay for a policy of key man life insurance.
Employer shall pay the premium for Employee's medical and dental
insurance. Employee agrees to fill out any forms and submit to a medical
examination, if required.
4.3 No bonus pay or other salary, other than as stated herein, shall be
required to be made to Employee.
4.4 Employee shall receive 3 weeks of vacation per year.
4.5 Employee shall have favored nations status.
4.6 Employee shall also be eligible for the Employer's Stock Option Plan at
levels to be determined by the Employer's compensation committee, and
shall be reimbursed for all reasonable business expenses, including cell
phone, travel, entertainment and other business expenses.
4.7 As consideration for the execution of this Agreement Employee shall
receive 1,000,000 shares of common stock of Employer; Employee shall also
be granted options to purchase 1,000,000 shares of common stock of
Employer, at a price of $1.125, exercisable for 5 years and immediately
vested.
ARTICLE V
TERMINATION
5.1 By Employer. Employer may terminate this Agreement with or without Cause
at any time upon ten (10) days written notice to Employee specifying the
effective date of termination. If Employer terminates Employee's
employment with Cause then Employer shall not be required to continue the
compensation or benefits provided in Section 4 beyond such termination
date. if Employer terminates without cause, Employee shall retain all
compensation provided herein for a period of six (6) months after
termination.
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5.2 As used herein, "Cause" shall mean any of the following occurrences:
(a) unexcused absences of Employee; or
(b) willful violation by Employee of any statute, regulation, or
ordinance of the United States or any state or local governing
authority in the United States, the compliance with which is
necessary for operation of the business of Employer; or
(c) material violations or breach by Employee of any of the provisions
of the Agreement; or
(d) commission by Employee of one or more acts of misconduct or
disobedience in connection with his duties as described in writing
by Employer or described hereunder, which, when considered
individually or in the aggregate, Employer deems material; or
(e) failure to abide by the wntten rules and regulations of Employer or
its clients, or failure to observe general rules of good conduct, in
the line of business; or
(f) consistent failure of Employee to perform his duties in a reasonably
proficient manner; or
(g) Employee being convicted of a felony; or
(h) mental or physical illness of Employee, which in Employer's good
faith judgment prevents, inhibits or impairs Employee's ability to
perform his duties in a reasonably proficient and safe manner; or
(i) death or disability which prevents Employee from fulfilling his
duties.
5.3 Voluntary. Employee may terminate this Agreement prior to the end of its
term by written notice to Employer. A notice of voluntary termination
shall specify a proposed effective date or termination of at least ten
(10) days after the date of deposit in the U.S. mail. Employer may accept
the proposed termination date or may set in the U.S. mail a sooner
termination date by mailing notice of such earlier date to Employee by
U.S. mail. In the event Employee voluntarily terminates this Agreement, he
will receive the compensation and benefits due hereunder through the
effective date of termination and no other compensation or benefits,
except as earned on a pro-rated basis as of the date of termination.
"Cause" shall be determined by the Employer's Board of Directors, provided
that Employee is given thirty (30) days written notice and permitted to
cure any purported violations. If Employee deems the matter cured, but
Employer's Board of Directors disagrees, tile matter shall be submitted to
arbitration under Paragraph 8.2 hereof, but Employee's employment shall
continue until final determination by the arbitrators adverse to the
Employee.
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ARTICLE VI
OTHER ACTIVITIES
Employee shall devote such portion of his working time and efforts (estimated at
50% of normal working hours) during the Company's normal business hours
(reasonable vacations and sick leave excluded) to the business and affairs of
the company and to achieve the duties and responsibilities assigned to him
pursuant to this Agreement. Notwithstanding the foregoing, Employee may devote a
reasonable amount of his time to civic, community, or charitable activities.
Employee in all events shall be free to invest his assets in such manner as will
not require any substantial service by Employee in the conduct of the businesses
or affairs of the entities or in the management of the assets in which such
investments are made during normal business hours of Employer. Employee serves
on the Board of Directors of other public companies and may continue to do so.
ARTICLE VII
CONFIDENTIALITY
7.1 Employee agrees that he will not, at any time, in any fashion, form or
manner, either directly or indirectly, divulge, disclose or communicate to
any person, firm, corporation or other entity in any manner whatsoever,
any trade secret information of any kind, nature regarding the Company
obtained while in the employ of Employer, including all matters known
regarding Employer's operations.
7.2 For one (1) year after the Contract Period ends, Employee agrees that it
will not, at any time, in any fashion, form or manner, either directly or
indirectly, divulge, disclose, or communicate to any person, firm,
corporation, or other entity in any manner whatsoever, any information of
any kind, nature or description concerning trade secret or relating to the
Company, or any other business conducted by the Employer ("Confidential
Information")
7.3 The parties hereto recognize and agree that in the event that the Employee
breaches any of the terms or provisions of paragraph 7 of this Agreement,
the nature and extent of the resulting damages to the Employer will be
difficult if not impossible, of exact computation and calculation, and
accordingly, the rights of the Employer hereunder may be enforced by an
injunction issued by a court of competent jurisdiction enjoining the
Employee from engaging in any activities or practices which are a breach
of this Agreement. The parties stipulate and agree that if a Court of
appropriate jurisdiction should find the duration and our extent of the
agreements herein made by the Employee to be unreasonable, then the same
should not be held void, but rather should be reformed to that which is
reasonable.
7.4 The provisions of paragraph 7 shall survive termination of this
Agreement.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Additional Assurances, The provisions of this Agreement shall be
self-operative and shall not require further agreement by the parties
except as may be specifically pr(3~ved to the contrary in this Agreement;
provided, however, at the request of Company, Employee shall execute such
additional instruments and take such additional acts as Company may deem
necessary to effectuate this Agreement.
8.2 Arbitration. With the exception of Paragraph 7 of this Agreement any
dispute as to the rights and duties of the parties under this Agreement or
to its Construction, validity or enforcement shall be submitted to binding
arbitration in Los Angeles pursuant to the rules of the American
Arbitration Association with discovery proceedings pursuant to such rules.
The decision of the arbitrators shall be enforceable in any court of
competent jurisdiction. The prevailing party in such arbitration or any
proceeding in respect thereof or challenging such arbitration, shall be
entitled to receive its or her attorney fees and court incurred in
connection therewith.
8.3 Waiver of Breach. The waiver by Company of Employee of a breach or
violation of any provision of this Agreement shall not operate as, or be
construed to be, a waiver by Company or Employee of any subsequent breach
of the same or other provision hereof.
8.4 Gender and Number. Whenever the context of this Agreement requires, the
gender of all words herein shall include the masculine, feminine, and
neuter, and the number of all words herein shall include the singular and
the plural.
8.5 Divisions and Headings. The division of this Agreement into sections and
the use of captions and headings in connection therewith are solely for
convenience and shall have no legal effect in construing the provisions of
this Agreement.
8.6 Severability. In the event that any of the provisions of this Agreement
shall be held invalid or unenforceable by any court of competent
jurisdiction, such invalidity or unenforceability shall not affect the
remainder of this Agreement and same shall be construed as if such invalid
or unenforceable provisions had never been a part hereof.
8.7 Notices. Any notices provided for in this Agreement shall be given in
writing and transmitted by personal delivery or prepaid first class
registered or certified U.S mail address as follows:
Employer: The Entertainment Internet, Inc.
0000 Xxxxxxxx Xxxxxxxxx Xxxxx 000
Xxx Xxxxxxx, XX 00000
Employee: ____________
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8.8 Successors to Employer. Except as otherwise provided herein, this
Agreement shall be binding upon the inure to the benefit of Employer and
any successor of Employer, including, without limitation, any corporation
or Corporations acquiring directly or indirectly all of substantially all
of the assets or business of Employer whether by merger, consolidation,
sale or otherwise (and such successor shall thereafter be deemed
"Employer" for the purposes of this Agreement), but shall not otherwise be
assignable by Employer.
8.9 Governing Law. This Agreement shall governed by the laws of the State
of California.
8.10 Choice of Forum. The parties hereto agree that in the event that any legal
suits, actions, or proceedings arising out of this Agreement are
instituted by any party hereto, such suits, actions or proceedings shall
be instituted only in the state or federal courts in the County of Los
Angeles and the Slate of California. The parties hereto do hereby consent
to the jurisdiction of such courts and waive any objection which they may
now or hereafter have to the venue of any such suits, actions or
proceedings; provided, however, that any party hereto shall have the right
to institute proceedings in another jurisdiction if the purpose of such
proceedings is to enforce or realize upon any final court judgment arising
out of this Agreement.
8.11 Consent to Service. Service of any and all process which may be served on
any party hereto in any suit, action, or proceeding related to this
Agreement may be made by registered or certified mail, return receipt
requested, to Employee or Employer at their respective address for notice
as set forth in Section 8.7, and service so made shall be taken and held
to be valid personal service upon such party by any party to this
Agreement on whose behalf such service is made.
8.12 Entire Agreement This Agreement constitutes the entire agreement between
the parties, superseding all prior understandings, arrangements and
agreements, whether oral or written, and may not be amended except by a
writing signed by the parties hereto. As used herein) unless the context
otherwise indicates, the term "this Agreement" includes any renewals
and/or amendments hereof.
This Agreement shall not be amended or modified except by instrument in
writing signed by the parties hereto. No failure of either party to insist
upon the strict performance by the other of any provision of this
Agreement shall be construed to waive the right of such party to
subsequently insist upon strict performance of that or any other
provision.
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IN WITNESS WHEREOF, Employer has, by its appropriate officers executed this
Agreement and Employee has executed this Agreement effective the date first
written above.
THE ENTERTAINMENT INTERNET, INC.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
EMPLOYEE:
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
