Employment Agreement - Baseline Inc. and Rafi Gordon
EMPLOYMENT AGREEMENT
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THIS AGREEMENT ("Agreement") is made and entered into this 14th day of
January, 2002 by and between Baseline, Inc., a Delaware corporation ("Company"),
and Rafi Gordon ("Employee").
RECITALS
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A. Company is engaged in the business of compiling, producing and licensing
data related to the entertainment industry;
B. Fountainhead Media Services, Inc., of which Employee is a principal
shareholder, is contributing its assets and business to Baseline
Acquisitions Corp., the parent company of the Company, pursuant to a
Transfer and Shareholders Agreement dated January 14, 2002 (the "Transfer
Agreement") and it is a condition precedent to the closing of that
transaction that Company and Employee enter into this Agreement;
C. Employee is experienced in, and knowledgeable concerning, one or more
aspects of the business of Company and is able to render services to the
Company which are of a special, unique, extraordinary and intellectual
character concerning the Company's business; and
D. Company and Employee mutually desire to agree upon the terms of Employee's
future employment with Company and to certain obligations of such
employment.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties agree as follows:
1. Term and Employment Period. The term of the Employee's employment under
this Agreement and the effective date of all terms and conditions of this
Agreement shall commence on January 14, 2002 (the "Effective Date") and shall
terminate on the date two (2) years following the Effective Date. The term of
the Employee's employment is referred to as the "Employment Period."
2. Duties and Acceptance. Employee shall be based in Los Angeles,
California and employed as President of Company under the direction of Nicholas
Hall (the "Supervisor") or Supervisor's designee, with such duties as are
assigned or delegated to Employee by the Supervisor to utilize Employee's
special, unique and extraordinary skills in conjunction with the Company's
businesses. Employee accepts such employment upon the terms and conditions
contained in this Agreement.
3. Compensation. Employee shall be paid a base annual salary of $65,000
during the Employment Period. Employee shall receive a commission payable
quarterly equal to 3.33% of payments received by Company during the Employment
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Period pursuant to any licensing agreement entered into by the Company during
the Employment Period with any film studio, production company or talent agency.
4. Extent of Services. Employee shall devote Employee's entire business
time, attention and energy exclusively to the business of the Company in the
advancement of the best interests of Company and shall not pursue any outside
for-profit business activities without the prior written consent of the Company.
5. Vacation. Employee shall be entitled to vacation accruable in accordance
with the Company's general vacation policy, commensurate with other employees of
the Company holding similar titles. If Employee's employment is terminated
(whether with or without cause and whether during or after the Employment
Period), Employee will not be paid for accrued, but unused, vacation consistent
with the Company's vacation policy.
6. Employee Benefits. Employee shall be eligible to participate in all
employee benefit plans and benefit programs of Company in effect during the
Employment Period to the same extent as other active employees of the Company,
including, without limitation, the employee stock option plan of the Company's
majority owning parent company, Hollywood Media Corp. The Company may, without
notice, change, modify, amend, or terminate any bonus plans, employee benefit
plans and benefit programs that may be in effect either on the Effective Date or
as may be adopted later.
7. Trade Secrets. Employee acknowledges and agrees that, among Employee's
duties for Company, Employee will be employed by Company in a position which
could provide the opportunity for conceiving, designing and/or reducing to
practice improvements, developments, ideas or discoveries, whether patentable or
unpatentable (collectively hereinafter referred to as "Trade Secrets"). Employee
acknowledges that all Trade Secrets which occur as a result of Employee's
employment shall be and remain the sole and exclusive property of the Company.
Employee hereby assigns, and agrees to assign, to Company all of Employee's
right, title and interest in and to any and all Trade Secrets which occur as a
result of Employee's employment to the Company.
Employee's Initials _________
8. Copyrights. Employee agrees that all right, title and interest in any
and all copyrights, copyright registrations and copyrightable subject matter
which occur as a result of Employee's employment with the Company shall be the
sole and exclusive property of the Company, and agrees that such works comprise
works made for hire. Employee hereby assigns, and agrees to assign, all right,
title and interest in any and all copyrights, copyright registrations and
copyrightable subject matter which occur as a result of Employee's employment to
the Company.
Employee's Initials _________
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9. Unfair Competition. Employee agrees that during Employee's employment
with Company Employee will not interfere with the business of Company in any
manner. Particularly, but without limitation, Employee agrees to refrain from
planning or organizing or in any manner becoming associated with a competitive
business during Employee's Employment Period. Employee further agrees that, for
a period of twenty-four (24) months immediately following Employee's termination
of employment with Company (voluntary or otherwise), Employee (a) will refrain
from planning or organizing or in any manner becoming associated, directly or
indirectly, with any business involved in the compilation, production or
licensing of data related to the entertainment industry, and (b) will not
interfere with the business of Company within the United States or Canada in any
manner for the purpose of (i) hiring away any employees of Company, or (ii)
soliciting customers or business relationships of Company.
Employee's Initials _________
10. Proprietary Information. Employee acknowledges and agrees that certain
non-public information obtained by Employee relating or pertaining to the
Company's businesses, projects, products, services, trade secrets, confidential
information (including customer lists, supplier lists, methods of operations and
financial information), unpublished know-how (whether patented or unpatented)
and other business information not easily accessible to other persons in the
trade (collectively, the "Proprietary Information"), are proprietary in nature;
provided, however, there shall be excluded from the meaning of Proprietary
Information any information which is or becomes generally known within the
industry through some non-confidential source other than Employee. Employee
acknowledges that the Proprietary Information shall be considered by Employee to
be confidential, and Employee covenants and agrees not publish, disclose or
reveal (whether directly or indirectly) any part of the Proprietary Information
to any entity or person or use the same for his/her own purposes or personal
gain or the purposes of other, during the term of this Agreement or after its
termination or expiration. Upon termination (voluntary or otherwise) of
Employee's employment with the Company, Employee will return to the Company all
things belonging to the Company, and all documents, records, notebooks and
tangible articles containing or embodying any Proprietary Information, including
copies thereof, then in Employee's possession or control, whether prepared by
Employee or others, will be left with the Company.
Employee's Initials _________
11. Termination.
(a) Death or Disability. In the event Employee dies or becomes
disabled during the Employment Period, this Agreement shall terminate on the
date on which death or disability occurs (except as to salary and rights already
accrued), and the sole remaining obligations of the Company under this Agreement
shall be to pay Employee or Employee's named beneficiary or heirs the salary
amounts due Employee to the date of Employee's disability or death. For purposes
of this Agreement, Employee shall be considered "disabled" when, as the result
of injury or sickness, Employee has been wholly and continuously disabled and
prevented from performing Employee's duties for ninety (90) consecutive days.
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(b) Cause. The Company may terminate Employee's employment and all
Company's obligations hereunder by written notice to Employee, for "cause" (as
defined below). In the event the Company invokes its right as described in this
paragraph, and Employee challenges the Company's interpretation of the
definition of cause, then such dispute shall be settled by binding arbitration,
the cost of which shall be borne by the losing party. For purposes of this
Agreement, "cause" shall be defined as Company's failure to earn the Minimum
Revenue Amounts (as defined below) at any time during the Employment Period,
willful misconduct or intentional or continual failure to perform stated and
material duties after reasonable notice and opportunity to cure any failure or
default, a known breach of fiduciary duties where such breach is made known to
Employee and Employee is given a reasonable opportunity to remedy or cure the
breach, or if Employee commits any acts of material dishonesty, fraud,
misrepresentation or other acts of moral turpitude against the Company. In the
event the Company terminates this Agreement for cause, or in the event Employee
leaves the employment of Company on Employee's own initiative other than for
"good reason" (as defined below), the Company shall no longer be obligated to
make any further salary payments to Employee beginning on such date. As used
herein, "Minimum Revenue Amounts" means revenue earned by the Company from new
data license agreements entered into by the Company during the Employment Period
in amounts equal to no less than:
First six months: $375,000
Second six months: $375,000
Third six months: $750,000
Fourth six months: $750,000
(c) Other. The Company may at any time terminate Employee's
employment for reasons other than for cause, in the sole discretion of the
Company. In the event that this Agreement is terminated by Employee for good
reason, or by the Company other than for cause, death or disability, the
Company's sole obligations to Employee shall be to continue to pay Employee the
salary and commissions described in Section 3 for the shorter of (i) the
remainder of the Employment Period and (ii) three months after the date of
termination. In addition, if this Agreement is terminated by Employee for good
reason, or by the Company other than for cause, death or disability, the options
to purchase common stock of Hollywood Media Corp. held by Employee and scheduled
to vest on the next scheduled vesting date shall vest upon such termination and
be exercisable thereafter on the terms set forth in the option grant agreement.
As used herein, the term "good reason" means that without Employee's prior
written consent the Company has (a) reduced Employee's base salary by 10% or
more from the rate set forth herein, (b) has deprived Employee of the title set
forth herein in Section 2, (c) has materially changed or eliminated Employee's
duties or authority, or (d) has required that Employee relocate to a location
greater than 50 miles from Los Angeles, California.
(d) Consideration payable under the Transfer Agreement is not
contingent upon Employee's employment with the Company.
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12. Breach. Employee acknowledges that Employee's services are of a
special, unique, unusual, extraordinary and intellectual character with regard
to the development of the Company's businesses and that in the event of any
breach of any terms and conditions of this Agreement by Employee (including but
not limited to Sections 7, 8, 9 and 10), the Company's remedies at law may be
inadequate and that the Company shall be entitled to injunctive relief in
addition to any other remedies. Employee further agrees that Sections 7, 8, 9
and 10 shall be enforceable by Company whether or not there is any claim of
breach of any other term of this Agreement. In the event that a court of any
jurisdiction holds this Agreement wholly or partially unenforceable because of
the breadth of its scope or otherwise, it is the intention of the Company and
the Employee that such a holding shall not bar or in any way affect the
Company's right to relief in the course of any other jurisdiction within the
scope of this Agreement.
Employee's Initials _________
13. General.
(a) Notices. All notices, requests, consents and other
communications, required or permitted to be given hereunder, shall be in writing
and shall be deemed to have been duly given when personally delivered or sent by
registered or certified mail, return receipt requested or when sent by overnight
delivery service, obtained signature for delivery or by facsimile upon
confirmation of successful transmission of the facsimile.
if to Employee at: 2 Ketch Street, #108
Marina Del Ray, CA 90292
Attention: Rafi Gordon
Telecopier No.: 310-306-2656
and if to Company at: Baseline, Inc.
2255 Glades Road
Suite 237W
Boca Raton, FL 33431
Attention: Mitchell Rubenstein,
Chief Executive Officer
Telecopier No.: (561) 998-2974
with a copy to:
Baseline, Inc.
2255 Glades Road
Suite 237W
Boca Raton, FL 33431
Attention: General Counsel
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(b) Assignment. This Agreement shall inure to the benefit of,
and shall be binding upon, the Company and its successors and assigns, including
any person with which the Company may merge, consolidate or transfer all or
substantially all of its assets. Insofar as the Employee is concerned, this
Agreement, being personal, cannot be assigned.
(c) Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of New York.
(d) Captions. The section headings contained herein are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement
(e) Entire Agreement. This Agreement contains the entire
agreement between the parties hereto and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof.
(f) Amendment. This Agreement may not be amended, modified,
superseded, canceled, renewed or extended other than by written instrument
executed by both of the parties hereto, or in the case of waiver, by the party
waiving compliance.
(g) Arbitration. All disputes between the parties hereto
concerning this Agreement or which would otherwise require or allow resort to
any court or other governmental dispute resolution forum (including, but not
limited to, all claims of discrimination or harassment) shall be settled by
binding arbitration in New York, New York in accordance with the model
employment dispute rules of the American Arbitration Association ("Rules") and
by one arbitrator appointed in accordance with the Rules. The expense of such
arbitration, shall be borne in accordance with the award of the arbitrator. Any
such award shall be final and binding on the parties thereto, and may be entered
in any court having competent jurisdiction.
(h) Waiver. The failure of either party at any time or times to
require performance of any provision hereof shall in no manner affect the right
at a later time to enforce the same. No waiver by either party of the breach of
any term or covenant contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or waiver of the breach of
any other term or covenant contained in this Agreement.
(i) Severability. Invalidity or unenforceability of any provision of
this Agreement shall in no way affect the validity or enforceability of any
other provisions.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY: EMPLOYEE:
Baseline, Inc.
By: __________________________ _________________________
Name: Mitchell Rubenstein Rafi Gordon
Title: Co-Chief Executive Officer
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