OBN HOLDINGS
April 1, 2003
Xx. Xxxxx Xxxx Xxxxx
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Dear Xx. Xxxxx:
OBN Holdings Incorporated ("OBN"), 0000 Xxxxx Xxxxx Xxxx, #X-000X, Xxx
Xxxxx, XX 00000, agrees to employ you and you agree to accept such
employment upon the following terms and conditions:
1. Term. Your employment under this Agreement shall commence on
April 1, 2003 (your "Commencement Date") and, unless terminated by OBN
or you pursuant to paragraph 8(a), (b) or (c) shall continue through
and until the third anniversary of your Commencement Date (the
"Expiration Date"). The period from your Commencement Date through
the Expiration Date is referred to as the "Term" notwithstanding any
earlier termination of your employment for any reason.
2. Duties. You agree to devote your substantially entire business
time, attention and energies to the business of OBN and its
subsidiaries during your employment with OBN. You will be President
and Chief Executive Officer of OBN, and you agree to perform all
duties reasonable and consistent with that office as the Board of
Directors of OBN (the "Board") or other individual designated by the
Board may assign to you from time to time.
3. Compensation.
(a) Salary. For all the services rendered by you in any
capacity under this Agreement, OBN agrees to pay you One Hundred
Twenty Five Thousand Dollars ($125,000) a year in base salary
("Salary"), less applicable deductions and withholding taxes, in
accordance with OBN's payroll practices as they may exist from time to
time. Your Salary will be reviewed each January 1st during the Term,
commencing January 1, 2004, and, assuming satisfactory performance,
will, at that time, be increased (but not decreased) by a percentage
generally consistent with OBN's then applicable compensation policies
for OBN executives at comparable position and performance levels.
(b) Bonus Compensation. You also shall be entitled to receive
annual bonus compensation ("Bonus") during your employment with OBN
under this Agreement, determined and payable as follows:
(i) Your Bonus for each calendar year during your employment
with OBN under this Agreement will be determined in accordance with
OBN's Short-Term Incentive Plan (the " STIP"), as applicable, as the
same may be amended from time to time.
(ii) Your Bonus for any calendar year shall be payable, less
applicable deductions and withholding taxes, by the end of the first
quarter of the following year.
4. Benefits. You shall participate in such vacation, medical,
dental, life insurance, long-term disability insurance, 401(k),
pension, long-term incentive and other plans as OBN may have or
establish from time to time and in which you would be entitled to
participate under the terms of the plan. This provision, however,
shall not be construed to either require OBN to establish any welfare,
compensation or long-term incentive plans, or to prevent the
modification or termination of any plan once established, and no
action or inaction with respect to any plan shall affect this
Agreement.
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5. Business Expenses. During your employment under this Agreement,
OBN shall reimburse you for such reasonable travel and other expenses
incurred in the performance of your duties consistent with OBN's then
applicable expense reimbursement policies.
6. Non-Competition, Confidential Information, Etc.
(a) Non-Competition. You agree that your employment with OBN
is on an exclusive basis and that, while you are employed by OBN, you
will not engage in any other business activity which is in conflict
with your duties and obligations (including your commitment of time)
under this Agreement. You agree that, during the Non-Compete Period
(as defined below), you shall not directly or indirectly engage in or
participate as an owner, partner, stockholder, officer, employee,
director, agent of or consultant for any OBN Competitor (as defined
below); provided, however, that this provision shall not prevent you
from investing as less than a one (1%) percent stockholder in the
securities of any company listed on a national securities exchange or
quoted on an automated quotation system. The Non-Compete Period shall
cover the entire Term plus any period after the Term for which you
receive payments pursuant to paragraph 8(d)(i) or 8(e). An OBN
Competitor is any business entity which engages in (I) television
broadcasting in any form or fashion, (ii) the production, licensing or
distribution of feature films, (iii) the production, licensing or
distribution of television programs, either alone or in association
with another entity. In every case, the good faith judgment of OBN
shall be conclusive as to whether a business entity constitutes an OBN
Competitor.
(b) Confidential Information. You agree that, during the Term
or at any time thereafter, (i) you shall not use for any purpose other
than the duly authorized business of OBN, or disclose to any third
party, any information relating to OBN or any of its affiliated
companies which is proprietary to OBN or any of its affiliated
companies ("Confidential Information"), including any customer
information, trade secret or any written (including in any electronic
form) or oral communication incorporating Confidential Information in
any way (except as may be required by law or in the performance of
your duties under this Agreement consistent with OBN's policies); and
(ii) you will comply with any and all confidentiality obligations of
OBN to a third party, whether arising under a written agreement or
otherwise. Information shall not be deemed Confidential Information
which (x) is or becomes generally available to the public other than
as a result of a disclosure by you or at your direction or by any
other person who directly or indirectly receives such information from
you, or (y) is or becomes available to you on a non-confidential basis
from a source which is entitled to disclose it to you.
(c) No Employee Solicitation. You agree that, during the Term
and for one (1) year thereafter, you shall not, directly or
indirectly, engage, employ or solicit the employment or consulting
services of any person who is then or has been within six (6) months
prior to the time of such action, an employee of OBN or any of its
affiliated companies, or agree to do so.
(d) OBN Ownership. The results and proceeds of your services
under this Agreement, including, without limitation, any works of
authorship resulting from your services during your employment with
OBN and/or any of its affiliated companies and any works in progress
resulting from such services, shall be works-made-for-hire and OBN
shall be deemed the sole owner throughout the universe of any and all
rights of every nature in such works, whether such rights are now
known or hereafter defined or discovered, with the right to use the
works in perpetuity in any manner OBN determines in its sole
discretion without any further payment to you. If, for any reason, any
of such results and proceeds are not legally deemed a work-made-for-
hire and/or there are any rights in such results and proceeds which do
not accrue to OBN under the preceding sentence, then you hereby
irrevocably assign and agree to assign any and all of your right,
title and interest thereto, including, without limitation, any and all
copyrights, patents, trade secrets, trademarks and/or other rights of
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every nature in the work, whether now known or hereafter defined or
discovered, and OBN shall have the right to use the work in perpetuity
throughout the universe in any manner OBN determines in its sole
discretion without any further payment to you. You shall, as may be
requested by OBN from time to time, do any and all things which OBN
may deem useful or desirable to establish or document OBN's rights in
any such results and proceeds, including, without limitation, the
execution of appropriate copyright, trademark and/or patent
applications, assignments or similar documents and, if you are
unavailable or unwilling to execute such documents, you hereby
irrevocably designate the CEO or his designee as your attorney-in-fact
with the power to execute such documents on your behalf. To the extent
you have any rights in the results and proceeds of your services under
this Agreement that cannot be assigned as described above, you
unconditionally and irrevocably waive the enforcement of such rights.
This paragraph 6(d) is subject to, and does not limit, restrict, or
constitute a waiver by OBN or any of its affiliated companies of any
ownership rights to which OBN or any of its affiliated companies may
be entitled by operation of law by virtue of being your employer.
(e) Litigation. You agree that, during the Term, for one (1)
year thereafter and, if longer, during the pendancy of any litigation
or other proceeding, (i) you shall not communicate with anyone (other
than your own attorneys and tax advisors), except to the extent
necessary in the performance of your duties under this Agreement, with
respect to the facts or subject matter of any pending or potential
litigation, or regulatory or administrative proceeding involving OBN
or any of OBN's affiliated companies, other than any litigation or
other proceeding in which you are a party-in-opposition, without
giving prior notice to OBN or OBN's counsel; and (ii) in the event
that any other party attempts to obtain information or documents from
you with respect to matters possibly related to such litigation or
other proceeding, you shall promptly notify OBN's counsel before
providing such information or documents.
(f) No Right to Give Interviews or Write Books, Articles, Etc.
During the Term, except as authorized by OBN, you shall not (i) give
any interviews or speeches, or (ii) prepare or assist any person or
entity in the preparation of any books, articles, television or motion
picture productions or other creations, in either case, concerning OBN
or any of its affiliated companies or any of their respective
officers, directors, agents, employees, suppliers or customers.
(g) Return of Property. All documents, data, recordings, or
other property, whether tangible or intangible, including all
information stored in electronic form, obtained or prepared by or for
you and utilized by you in the course of your employment with OBN or
any of its affiliated companies shall remain the exclusive property of
OBN. In the event of the termination of your employment for any
reason, OBN reserves the right, to the extent permitted by law and in
addition to any other remedy OBN may have, to deduct from any monies
otherwise payable to you the following: (i) all amounts you may owe
to OBN or any of its affiliated companies at the time of or subsequent
to the termination of your employment with OBN; and (ii) the value of
the OBN property which you retain in your possession after the
termination of your employment with OBN. In the event that the law of
any state or other jurisdiction requires the consent of an employee
for such deductions, this Agreement shall serve as such consent.
(h) Non-Disparagement. You agree that, during the Term and for
one (1) year thereafter, you shall not, in any communications with the
press or other media or any customer, client or supplier of OBN or any
of its affiliated companies, criticize, ridicule or make any statement
which disparages or is derogatory of OBN or any of its affiliated
companies or any of their respective directors or senior officers.
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(i) Injunctive Relief. OBN has entered into this Agreement in
order to obtain the benefit of your unique skills, talent, and
experience. You acknowledge and agree that any violation of
paragraphs 6(a) through (h) of this Agreement will result in
irreparable damage to OBN, and, accordingly, OBN may obtain injunctive
and other equitable relief for any breach or threatened breach of such
paragraphs, in addition to any other remedies available to OBN.
(j) Survival; Modification of Terms. Your obligations under
paragraphs 6(a) through (i) shall remain in full force and effect for
the entire period provided therein notwithstanding the termination of
your employment whether under this Agreement or otherwise for any
reason or the expiration of the Term. You and OBN agree that the
restrictions and remedies contained in paragraphs 6(a) through (i) are
reasonable and that it is your intention and the intention of OBN that
such restrictions and remedies shall be enforceable to the fullest
extent permissible by law. If a court of competent jurisdiction shall
find that any such restriction or remedy is unenforceable but would be
enforceable if some part were deleted or the period or area of
application reduced, then such restriction or remedy shall apply with
the modification necessary to make it enforceable.
7. Disability. In the event that you become "disabled" within the
meaning of such term under OBN's Short-Term Disability ("STD") program
and its Long-Term Disability ("LTD") program during the Term (such
condition is referred to as a "Disability"), you will receive
compensation under the STD program for the first twenty-six (26) weeks
of consecutive absence in accordance with its terms. Thereafter, you
will be eligible to receive benefits under the LTD program in
accordance with its terms. If you have not returned to work by
December 31st of a calendar year during the Term, you will receive
bonus compensation for the calendar year(s) during the Term in which
you receive compensation under the STD program, determined as follows:
(i) For the portion of the calendar year from January 1st until
the date on which you first receive compensation under the STD
program, bonus compensation shall be determined in accordance with the
STIP, as applicable, and prorated for such period; and
(ii) For any subsequent portion of that calendar year and any
portion of the following calendar year in which you receive
compensation under the STD program, bonus compensation shall be in an
amount equal to your Target Bonus and prorated for such period(s).
Bonus compensation under this paragraph 7 shall be paid, less
applicable deductions and withholding taxes, by the end of the first
quarter of the year(s) following the year as to which such bonus
compensation is payable. You will not receive bonus compensation for
any portion of the calendar year(s) during the Term while you receive
benefits under the LTD program. For the periods that you receive
compensation and benefits under the STD and LTD programs, such
compensation and benefits and the bonus compensation provided under
this paragraph 7 are in lieu of Salary and Bonus under paragraphs 3(a)
and (b).
8. Termination.
(a) Termination for Cause. OBN may, at its option, terminate
your employment under this Agreement forthwith for Cause and
thereafter shall have no further obligations under this Agreement,
including, without limitation, any obligation to pay Salary or Bonus
or provide benefits. Cause shall mean: (i) embezzlement, fraud or
other similar conduct involving OBN which would constitute a felony;
(ii) conviction of a felony; (iii) unauthorized disclosure of
Confidential Information; (iv) your failure to obey a material lawful
directive that is appropriate to your position from an executive(s) in
your reporting line; (v) your material breach of this Agreement; or
(i) your failure (except in the event of your disability) or refusal
to substantially perform your material obligations under this
Agreement. OBN will give you written notice prior to terminating your
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employment pursuant to (iv), (v) or (vi) of this paragraph 8(a),
setting forth the nature of any alleged failure, breach or refusal in
reasonable detail and the conduct required to cure. Except for a
failure, breach or refusal which, by its nature, cannot reasonably be
expected to be cured, you shall have ten (10) business days from the
giving of such notice within which to cure any failure, breach or
refusal under (iv) or (v) of this paragraph 8(a); provided, however,
that, if OBN reasonably expects irreparable injury from a delay of ten
(10) business days, OBN may give you notice of such shorter period
within which to cure as is reasonable under the circumstances.
(b) Good Reason Termination. You may terminate your employment
under this Agreement for Good Reason at any time during the Term by
written notice to OBN no more than thirty (30) days after the
occurrence of the event constituting Good Reason. Such notice shall
state an effective date no earlier than thirty (30) business days
after the date it is given. OBN shall have thirty (30) business days
from the giving of such notice within which to cure and, in the event
of such cure, your notice shall be of no further force or effect. Good
Reason shall mean without your consent (other than in connection with
the termination or suspension of your employment or duties for Cause
or in connection with your Disability): (i) the assignment to you of
duties or responsibilities substantially inconsistent with your
position(s) or duties; (ii) the withdrawal of material portions of
your duties described in paragraph 2; (iii) the material breach by OBN
of its material obligations under this Agreement, including without
limitation, a reduction in your Salary or Target Bonus; or (iv) OBN's
failure to offer to extend or renew this Agreement no later than
thirty (30) days before the end of the Term on substantially similar
terms.
(c) Termination Without Cause. OBN may terminate your
employment under this Agreement without Cause at any time during the
Term by written notice to you.
(d) Termination Payments/Benefits. In the event that your
employment terminates under paragraph 8(b) or (c), you shall
thereafter receive, less applicable withholding taxes:
(i) Your Salary, as in effect on the date on which your
employment terminates, for twelve (12) months after the date of such
termination or the balance of the Term, whichever is longer, paid in
accordance with OBN's then effective payroll practices;
(ii) Bonus compensation for the calendar year in which such
termination occurs, payable by the end of the first quarter of the
following year, determined as follows:
(x) For the portion of the calendar year from January 1st
until the date of the termination, bonus compensation shall be
determined in accordance with the STIP, as applicable, and prorated
for such period; and
(y) For the remaining portion of such calendar year during
the Term, bonus compensation shall be in an amount equal to your
Target Bonus and prorated for such period;
(iii) Bonus compensation for each subsequent calendar year or
portion thereof during the Term, in an amount equal to your Target
Bonus, prorated for any partial calendar year and payable by the end
of the first quarter of the following year;
(iv) Medical and dental insurance coverage provided under COBRA
at no cost to you (except as hereafter described) pursuant to OBN's
then-current benefit plans until the end of the Term or, if earlier,
the date on which you become eligible for medical and dental coverage
from a third party; provided, that, during the period that OBN
provides you with this coverage, an amount equal to the applicable
COBRA premiums (or such other amounts as may be required by law) will
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be included in your income for tax purposes to the extent required by
law and OBN may withhold taxes from your compensation for this
purpose; and provided, further, that you may elect to continue your
medical and dental insurance coverage under COBRA at your own expense
for the balance, if any, of the period required by law;
(v) Life insurance coverage until the end of the Term pursuant
to OBN's then-current policy in the amount then furnished to OBN
employees at no cost (the amount of such coverage will be reduced by
the amount of life insurance coverage furnished to you at no cost by a
third party employer);
You shall be required to mitigate the amount of any payment provided
for in (i), (ii) and (iii) of this paragraph 8(d) by seeking other
employment, and the amount of such payments shall be reduced by any
compensation earned by you from any source, including, without
limitation, salary, sign-on or annual bonus compensation, consulting
fees, commission payments and, in the event you receive significantly
more long-term compensation than you received from OBN, OBN's good
faith estimate of the present value of the portion of such long-term
compensation in excess of the long-term compensation from OBN;
provided, that mitigation shall not be required, and no reduction for
other compensation shall be made, for twelve (12) months after the
termination of your employment or, if less, the balance of the Term.
You agree to notify OBN with respect to any such compensation earned
by you during the period when such mitigation is required and to
promptly respond to any inquiries from OBN with respect to such
compensation or your efforts to fulfill your mitigation obligations
under this provision.
(e) Termination of Benefits. Notwithstanding anything in this
Agreement to the contrary (except as otherwise provided in paragraph
8(d) with respect to medical and dental benefits and life insurance),
participation in all OBN benefit plans and programs (including,
without limitation, vacation accrual, the 401(k) plan, the pension
plan and the related excess plans, LTD and accidental death and
dismemberment and business travel and accident insurance) will
terminate upon the termination of your employment except to the extent
otherwise expressly provided in such plans or programs and subject to
any vested rights you may have under the terms of such plans or
programs.
(f) Resignation from Official Positions. If your employment
with OBN terminates for any reason, you shall be deemed to have
resigned at that time from any and all officer or director positions
that you may have held with OBN or any of its then current or
previously affiliated companies and all board seats or other positions
in other entities you held on behalf of OBN. If, for any reason, this
paragraph 8(g) is deemed insufficient to effectuate such resignation,
you agree to execute, upon the request of OBN, any documents or
instruments which OBN may deem necessary or desirable to effectuate
such resignation or resignations, and you hereby authorize the
Secretary and any Assistant Secretary of OBN to execute any such
documents or instruments as your attorney-in-fact.
9. Death. In the event of your death prior to the end of the Term
while actively employed, your beneficiary or estate shall receive (i)
your Salary up to the date on which the death occurs; (ii) any Bonus
earned in the prior year but not yet paid; and (iii) bonus
compensation for the calendar year in which the death occurs,
determined in accordance with the STIP, as applicable (i.e., based
upon OBN's achievement of its goals and OBN's good faith estimate of
your achievement of your personal goals), and pro-rated for the
portion of the year through the date of death, payable, less
applicable deductions and withholding taxes, by the end of the first
quarter of the following year. In the event of your death after the
termination of your employment while you are entitled to receive
compensation under paragraph 8(d) your beneficiary or estate shall
receive (x) any Salary payable under paragraph 8(d)(i) up to the date
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on which the death occurs; (y) any bonus compensation earned under
paragraph 8(d)(ii) or (iii) with respect to the prior year but not yet
paid; and (z) any bonus compensation for the calendar year in which
the death occurs, determined in accordance with paragraph 8(d)(ii) or
(iii) and pro-rated for the portion of the year through the date of
death, payable, less applicable deductions and withholding taxes, by
the end of the first quarter of the following year.
10. No Acceptance of Payments. You represent that you have not
accepted or given nor will you accept or give, directly or indirectly,
any money, services or other valuable consideration from or to anyone
other than OBN for the inclusion of any matter as part of any film,
television program or other production produced, distributed and/or
developed by OBN and/or any of its affiliated companies.
11. Equal Opportunity Employer. You recognize that OBN is an
equal opportunity employer. You agree that you will comply with OBN
policies regarding employment practices and with applicable federal,
state and local laws prohibiting discrimination on the basis of race,
color, sex, religion, national origin, citizenship, age, marital
status, sexual orientation, disability or veteran status.
12. Employee Statement of Business Conduct. You agree that you
will comply with the OBN Employee Statement of Business Conduct.
13. Notices. All notices under this Agreement must be given in
writing, by personal delivery or by mail, at the parties' respective
addresses shown on this Agreement (or any other address designated in
writing by either party), with a copy, in the case of OBN, to the
attention of the General Counsel of OBN. Any notice given by mail
shall be deemed to have been given three days following such mailing.
14. Assignment. This is an Agreement for the performance of
personal services by you and may not be assigned by you or OBN except
that OBN may assign this Agreement to any affiliated company of or any
successor in interest to OBN.
15. NEVADA LAW AND JURISDICTION. YOU ACKNOWLEDGE THAT THIS
AGREEMENT HAS BEEN EXECUTED, IN WHOLE OR IN PART, IN NEVADA, AND YOUR
EMPLOYMENT DUTIES ARE PRIMARILY PERFORMED IN NEVADA. ACCORDINGLY, YOU
AGREE THAT THIS AGREEMENT AND ALL MATTERS OR ISSUES ARISING OUT OF OR
RELATING TO YOUR OBN EMPLOYMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEVADA APPLICABLE TO CONTRACTS ENTERED INTO AND PERFORMED
ENTIRELY THEREIN. ANY ACTION TO ENFORCE THIS AGREEMENT SHALL BE
BROUGHT SOLELY IN THE STATE OR FEDERAL COURTS LOCATED IN THE CITY OF
LAS VEGAS.
16. Binding Arbitration. Should any dispute arise as to the
terms of this agreement, you agree to submit to binding arbitration.
17. No Implied Contract. Nothing contained in this Agreement
shall be construed to impose any obligation on OBN or you to renew
this Agreement or any portion thereof. The parties intend to be bound
only upon execution of a written agreement and no negotiation,
exchange of draft or partial performance shall be deemed to imply an
agreement. Neither the continuation of employment nor any other
conduct shall be deemed to imply a continuing agreement upon the
expiration of the Term.
18. Entire Understanding. This Agreement contains the entire
understanding of the parties hereto relating to the subject matter
contained in this Agreement, and can be changed only by a writing
signed by both parties.
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19. Void Provisions. If any provision of this Agreement, as
applied to either party or to any circumstances, shall be found by a
court of competent jurisdiction to be unenforceable but would be
enforceable if some part were deleted or the period or area of
application were reduced, then such provision shall apply with the
modification necessary to make it enforceable, and shall in no way
affect any other provision of this Agreement or the validity or
enforceability of this Agreement.
20. Supersedes Prior Agreements. With respect to the period
covered by the Term, this Agreement supersedes and cancels all prior
agreements relating to your employment by OBN or any of its affiliated
companies.
21. No Restriction on Employment. You represent that you are
not subject to any covenant, agreement, or restriction (including, but
not limited to, a covenant of non-competition) with or by any third
party that would prevent you from beginning your employment on your
Commencement Date and thereafter performing your duties and
responsibilities with OBN, or would impinge upon, interfere with, or
restrict your ability to perform your duties or responsibilities with
OBN under this Agreement.
If the foregoing correctly sets forth our understanding, please sign,
date and return all three (3) copies of this Agreement to the
undersigned for execution on behalf of OBN; after this Agreement has
been executed by OBN and a fully-executed copy returned to you, it
shall constitute a binding agreement between us.
Very truly yours,
OBN HOLDINGS, INCORPORATED
/s/ XXXXXX X. XXXXXX
_________________________
Xxxxxx X. Xxxxxx
Corporate Secretary
ACCEPTED AND AGREED:
/s/ XXXXX XXXX XXXXX
_________________________
XXXXX XXXX XXXXX
Dated: April 1, 2003
