Employment Agreement - DMC Cinema Inc. and Allan Martin
CONFIDENTIAL EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
August 24, 2000, by and between DMC Cinema, Inc., a Delaware Corporation (the
"Company"), and Allan Martin, an individual residing in the State of Florida
(the "Employee").
WHEREAS, the Company is engaged in business of providing Advertising Media
on an internet-based platform (such activities, present and future, being
hereinafter referred to as the "Business"); and
WHEREAS, the Company desires to secure the services and employment of the
Employee; and on behalf of the Company, and the Employee desires to enter into
employment with the Company, upon the terms and conditions hereinafter set
forth; and
WHEREAS, the Company and Employee desire to enter into this Agreement in
order to memorialize their understandings as to employment, to assure the
Company of the services of Employee for the benefit of the Company, and to set
forth the respective rights and duties of the parties hereto.
NOW, THEREFORE, in consideration of the promises and mutual covenants,
terms and conditions contained herein, each intending to be legally bound, the
Company and Employee agree as follows:
1. Employment.
1.1 Employment and Title. The Company hereby employs the Employee, and Employee
accepts such employment, as CEO, DMC Cinema, Inc., of the Company, and the
Employee accepts such employment for the term of employment specified in Section
2 below. During the Term (as defined below), the Employee shall perform such
duties as shall be reasonably required of such an employee of the Company, and
shall have such other powers and perform such other additional executive duties
as may from time to time be assigned to him by the Board of Directors of the
Company. Except as provided by Section 1.3 below, the Company acknowledges that
the Employee's primary place of business shall be Westport, CT and the Employee
acknowledges that in performance of his duties hereunder, the Employee shall be
required to travel to the Company's facilities located throughout the United
States all upon the terms and conditions set forth herein.
1.2 Services. During the Term of this Agreement, Employee shall perform
diligently and in good faith such duties and services for the Company as are
consistent with the position held by Employee, under the direction and authority
of the Chief Executive Officer of Distributed Media Corporation (the "CEO") and
the Board Of Directors of DMCC or such person as the CEO may designate from time
to time. The Employee will serve the Company faithfully and to the best of
his/her ability and will devote all of his/her time, energy, experience and
talents during regular business hours and as otherwise reasonably necessary to
such employment, to the exclusion of all other business activities.
1.3 Location. The principal place of employment and the location of Employee's
principal office shall be in Westport, CT; provided, however, Employee shall,
when directed by the CEO, or may, if Employee determines it to be reasonably
necessary, temporarily perform outside of Westport, CT, such services as are
reasonably required for the execution of his/her duties under this Agreement.
1.4 Representations. Each party represents and warrants to the other that such
representing party has full power and authority to enter into and perform this
Agreement and that execution and performance of this Agreement by such party
shall not constitute a default under or breach of any of the terms of any other
agreement to which he/she/it is a party or under which he/she/it is legally
bound. Each party represents that no consent or approval of any third party is
required for their respective execution, delivery and performance of this
Agreement or that all consents or approvals of any third party required for such
execution, delivery and performance of this Agreement have been obtained any
provided to the other party.
1.5 Commencement of Services. Employee shall begin providing services hereunder
on the date hereof, (the "Commencement Date").
1.6 Authority of CEO or Designate. The Employee recognizes and acknowledges that
the Board of Directors of the Company has granted the CEO of Distributed Media
Corporation (DMC) authority with regard to all matters arising in connection
with this Agreement, including the administration and execution hereof, that the
CEO of DMC may designate, at his discretion, another officer or employee of the
Company to so act on his/her and the Company's behalf with respect ta the
transactions contemplated herein.
2. Term.
2.1 Term. The employment term hereunder (the "Term") shall begin as of the
Commencement Date and shall continue through June 30, 2003, unless earlier
terminated pursuant to Section 7 below of this Agreement. This Agreement shall
not be automatically renewable.
3. Compensation.
3.1 Base Salary. During the Term, the Company shall pay the Employee an annual
base salary of not less than one hundred thirty-five Thousand and no/100 Dollars
($135,000), which base salary shall accrue monthly (prorated for periods less
than a month) and shall be paid in equal bi-weekly installments, in arrears, or
on such other payment schedule as the Company may adopt as policy from time to
time with regard to regular executive compensation payments, subject to
withholding and other applicable taxes. Annual increases to the base salary will
be reviewed annually, or otherwise as appropriate from time to time, by the
Company.
3.2 Incentive Cash Compensation The Employee shall participate in and be
eligible to an annual performance-based compensation award of up to 75 % of
his/her base salary based upon the satisfaction of targets established by
management (as set forth on Exhibit A) and approved by the Board of Directors of
the Company on or before January 31 of each year for such year.
3.3 Founder's Stock . In exchange for industry knowledge, the Company has
granted to the Employee, Founder's stock equal to 4 1/6%, of DMC Cinema, Inc.'s
fully paid and non-assessable voting common stock.]
3.4 DMC Stock Options. Options shall be granted if and when approved by the
Company's Board of Directors. (as set forth in Exhibit B)
3.5 Benefits. The Employee shall be entitled, at the Company's expense, during
the Term hereof, to the same medical, hospital, pension, profit sharing, dental,
disability, and life insurance coverage and benefits as may be made available
from time to time to executives' of the Company holding similar positions and/or
responsibilities and in accordance with the Company's established practices,
including, but not limited to, the following:
(a) A monthly automobile allowance of $450.00.
(b) Four (4) weeks of paid vacation, accrued on a bi-weekly basis, for each
year term hereof and subject to review by the CEO of DMC for any renewal
terms, and shall be entitled to sick leave in accordance with policies
established by the Company with respect to its executive level employees.
3.6 Withholding. Any and all amounts payable under this Agreement, including,
without limitation, amounts payable under this Section 3 and Section 4, are
subject to withholding for such federal, state and local taxes as the Company,
in its reasonable judgment, determines to be required pursuant to any applicable
law, rule or regulation.
4. Working Facilities, Expenses and Key-Man Insurance.
4.1 Working Facilities. The Employee shall be furnished with an office at the
principal executive offices of the Company, or at such other location as agreed
to by the Employee and the Company, and other working facilities and secretarial
and other assistance suitable to his/her position and reasonably required for
the performance of his/her duties hereunder.
4.2 Expenses. The Company shall reimburse the Employee for all of the Employee's
reasonable expenses incurred in the course of performing his/her duties under
and in accordance with the terms and conditions of this Agreement, subject to
the Employee's full and appropriate documentation, including, without
limitation, receipts for all such expenses in the manner required pursuant to
Company's policies and procedures and the Internal Revenue Code of 1986, as
amended (the "Code") and applicable regulations as are in effect from time to
time.
4.3 Insurance. The Company may secure in its own name or otherwise, and at its
own expense, life, disability and other insurance covering the Employee or
others, and the Employee shall not have any right, title or interest in or to
such insurance other than as expressly provided to the contrary by the Company.
The Employee agrees to assist the Company in procuring such insurance by
submitting to the usual and customary medical and other examinations at the
Company's expense, to be conducted by such physicians(s) as the Company or such
insurance company may designate and by signing, upon adequate time to review and
consult appropriate counsel, such necessary applications and other written
instruments as may be required by any insurance company to which application is
made for such insurance.
5. Illness or Incapacity.
5.1 Right to Terminate. During the Term of this Agreement, if the Employee is
unable to perform in all material respects his/her duties under this Agreement
for a period of six (6) consecutive months by reason of illness or incapacity,
and the Employee thereafter, in the sole but reasonable judgment of the Company,
is unable to resume and perform such duties in all material respects on a
full-time basis, the Employee may be replaced pursuant to Section 5.2 or this
Agreement may be terminated by the Company pursuant to Section 7.1 hereof.
5.2 Right to Replace, If the Employee's illness or incapacity, whether by
physical or mental cause, renders such Employee unable for a minimum period of
six (6) consecutive months to carry out his/her duties and responsibilities as
set forth herein, the Company shall have the right to designate a person to
replace said Employee in the capacity described in Section 1 hereof; provided,
however, that if Employee returns to work from such illness or incapacity within
the six (6) month period set forth in 5.1 above and if a position is offered to
the Employee that does not hold either similar duties and benefits or enhanced
duties and/or benefits, the Employee may elect to reject the new position and
terminate this Agreement.
5.3 Rights Prior to Termination. Notwithstanding the provisions set forth in 5.1
and 5.2 above, during any illness or incapacity as described in this Section 5,
in which the illness or injury continues up to and beyond six (6) consecutive
months, the Employee shall be entitled to receive his/her full remuneration and
benefits hereunder, for the six (6) months prior to any disability insurance
becoming effective.
5.4 Determination of Illness or Incapacity. For purposes of this Section 5, the
determination of the Employee's inability to perform his/her duties in all
material respects and the existence of "illness or incapacity" as the reason for
such inability and continuing inability, shall be determined by the Board of
Directors of the Company in its sole reasonable discretion. The Employee shall
have ten (10) days from receipt of notice from the Company as to its
determination of illness or incapacity and its decision to terminate Employee's
employment to protest such finding in writing. If such a written protest is made
or there is otherwise a dispute regarding the existence, extent, or continuance
of the illness or incapacity, the parties agree to abide by the decision of a
panel of three physicians. The Employee and the Company shall each appoint one
member, and the third member of the panel shall be appointed by the other two
members. The Employee agrees to make himself/herself available for and submit to
examinations by such physicians as may be directed by the Company. Failure to
appoint a physician to the panel within twenty (20) days of the notice of
protest to the Company by Employee or failure to submit to any medical
examination shall constitute a material breach of this Agreement.
6. Confidential Information.
6.1 Confidentiality. During the Term of this Agreement and at all times
thereafter, the Employee shall not divulge, communicate, use to the detriment of
the Company, or for the benefit of any other business, firm, person, partnership
or corporation, or otherwise misuse, any "Confidential Information" pertaining
to the Company, including, without limitation, all: (i) data or trade secrets,
including secret processes, formulas or other technical data; (ii) production
methods; (iii) customer lists; (iv) personnel lists; (v) proprietary
information; (vi) financial or corporate records; (vii) operational, sales,
promotional and marketing methods and techniques; (viii) development ideas,
acquisition strategies and plans; (ix) financial information and records; (x)
"know-how" and methods of doing business; and (xi) computer programs, including
source codes and/or object codes and other proprietary, competition-sensitive or
technical information or secrets developed with or without the help of the
Employee. The Employee acknowledges that any such information or data he/she may
have acquired was received in confidence and by reason of his/her relationship
to the Company. Confidential Information shall not include any information
which: (i) at the time of disclosure is within the public domain; (ii) after
disclosure to the Employee becomes a part of the public domain or generally
known within the industry through no fault, act or failure to act, error, effort
or breach of this Agreement by the Employee; (iii) is known to the recipient at
the time of disclosure; (iv) is discovered by the Employee subsequent to
termination of his/her employment and independently, and not directly or
indirectly resulting from, of any disclosure by the Company; (v) is required by
order, statute, or regulation of any governmental authority to be disclosed to
any federal or state agency, court or other body; or (vi) is obtained from a
third party who has acquired a legal right to possess and disclose such
information.
6.2 Non-Removal of Records. All equipment, office supplies, documents, papers,
materials, notes, books, correspondence, drawings and other written and graphic
records relating to the Business of the Company, whether or not constituting
Confidential Information, which the Employee shall prepare, use, or come into
contact with shall be and remain the sole property of the Company and, effective
immediately upon the termination of the Employee's employment with the Company
for any reason, shall not be removed from the Company's premises without the
Company's prior written consent.
7. Termination.
7.1 Termination For Cause. This Agreement and the Employee's employment
hereunder may be terminated by the Company under any one of the following
circumstances, any of which shall be deemed, and shall be sufficient to
constitute, a termination "for cause":
(a) Employee commits any material act of fraud, misappropriation, theft,
dishonesty or unethical practice against the Company or in connection with
the performance of his/her duties hereunder.
(b) Employee defaults under or commits a breach of any material provision of
this Agreement and Employee fails to cure such breach within 30 days of
receipt of notice from the Company identifies such breach.
(c) Employee engages in material willful misconduct in the performance of
his/her duties hereunder, commits insubordination (in the sole, reasonable
discretion of the CEO of DMC or the Board of Directors of DMC Cinema and/or
DMC), or otherwise refuses to perform his/her duties hereunder as directed
by the CEO of DMC.
(d) Employee is guilty of, pleads to, is convicted of, or pleads guilty or nolo
contendre to, a felony, crime of moral turpitude or other serious criminal
offense.
Unless otherwise specifically provided herein, any determination as to a
justifiable "for cause" termination shall be made by and in the good faith
determination of the Company. A termination for cause under this Section 7.1
shall be effective upon the date set forth in a written notice of termination
delivered to the Employee, and Employee shall not be entitled to any Severance
Payments from the Company. All Options then held by Employee which have vested
must be exercised within 30 days following a termination by the Company "for
cause" and if not so vested shall be deemed forfeited. Unvested options shall
terminate immediately prior to termination "for cause."
7.2 Voluntary Termination. In the event that the Employee voluntarily agrees to
terminate his/her employment with the Company, and is not otherwise subject to
termination by the Company under Section 7.1, the Employee shall receive all
employment compensation up the date of termination, and all stock options that
have accrued and vested to the benefit of the Employee up to the date of the
termination, shall remain fully vested and be exercisable in accordance with
their terms so long as Employee complies with Section 9 herein. Unvested options
held by Employee shall terminate on the date of termination. Employee shall not
be entitled to any Severance Payments upon a voluntary termination.
8. Payments Upon Termination Without Cause or Upon Constructive Termination.
8.1 Definitions. For the purposes of this Agreement: (a) "Accrued Benefits"
shall be and include the following amounts, payable as described herein:
(i) all accrued but unpaid base salary for the time period ending with the
effective date of termination (the "Termination Date");
(ii) reimbursement for any and all reasonable expenses incurred by the Employee
on behalf of the Company for the time period ending with the Termination
Date;
(iii)any and all compensation or other cash earned through the Termination Date
and deferred at the election of the Employee or pursuant to any deferred
compensation plan then in effect; and
(iv) all other payments and benefits to which the Employee (or in the event of
the Employee's death, the Employee's surviving spouse or other beneficiary)
may be entitled as compensatory fringe benefits or under the terms of any
benefit plan of the Company, excluding severance payments under any Company
severance policy, practice or agreement in effect immediately prior to the
Termination pate.
Payment of Accrued Benefits shall be made promptly in accordance with the
Company's prevailing practice with respect to clauses (i) and (ii) of this
Section 8.1 or with respect to clauses (iii) and (iv) of this Section 8.1,
pursuant to the terms of the benefit plan or practice establishing such
benefits.
(b) "Severance Payments" shall include only the following:
(A) Employee's annual base salary as in effect immediately prior to the
Termination Date, shall be paid by the Company in accordance with its
normal payroll practices; provided however that if the Termination Date
occurs within the 6 month period prior to the end of the Term, the Company
shall be obliged to pay Employee his base salary only through the 6 month
after the end of the Term;
(B) the Company shall pay Employee an amount equal to the average annual bonus
for the three (3) previous years. Employee shall not be required to
mitigate the amount of the Severance Payments by securing other employment
or otherwise, nor will such Severance Payments be reduced by reason of the
Employee securing other employment or for any other reason. The Severance
Payments shall be in lieu of any other severance payments under any Company
severance policy, practice or agreement, and acceptance by the Employee of
the Severance Payments shall constitute the Employee's release of any
rights of the Employee to any such payments.
(c) "Constructive Termination" shall mean any one or more of the following:
(i) A significant change in the nature or the scope of the Employee's present
authority or present duties, responsibilities and status without the
consent of Employee;
(ii) Employee is assigned duties of a nonexecutive nature for a substantial
period of time and for which the Employee is not reasonably equipped by
his/her skills and experience;
(iii) There is a reduction in the Employee's monthly rate of base salary;
(iv) The present site must be Westport, CT. As agreed, Allan Martin needs to
move to the Westport, CT area (ON OR BEFORE SEPTEMBER 1, 2001. "AM")
8.2 Effect of Termination Without Cause. If Employee's employment is terminated
by the Company during the Term of this Agreement "without cause", or Employee
terminates this Agreement by reason of circumstances constituting a Constructive
Termination, Employee shall be entitled to the following:,
(a) the Accrued Benefits;
(b) the Severance Payments; and
(c) all options to purchase capital stock of the Company held by Employee, to
the extent unvested, shall, immediately upon the Termination Date, become
fully vested and exercisable in accordance with the terms under which such
options were granted. To the extent such acceleration of vesting of such
options is not permissible pursuant to the terms under which such options
were granted, the Company will pay to Employee an amount equal to the
excess, if any, of the aggregate fair market value of all stock of
underlying such options, determined on the Termination Date over the
aggregate exercise price for such stock pursuant to the terms under which
the options were granted.
8.3 Termination on Change of Control. Twelve (12) months after a change of
control and for a period of thirty (30) days employee may trigger a "change of
control" termination. Employee shall be entitled to receive the benefits under
Section 8 above. If Employee triggers a change of control termination, three (3)
months notice is required. Employee and Employer may modify this provision by
mutual agreement any time during the twelve (12) months following a change of
control.
8.4 Change of Control. For purposes of Section 8.4 of this Agreement, "Change of
Control" shall mean any of the following with exception of mergers into a public
shell:
The sale, assignment or transfer of assets of the Company or any subsidiary or
subsidiaries, in a transaction or series of transactions, if the aggregate
consideration received or to be received by the Company or any such subsidiary
in connection with such sale, assignment or transfer is greater than fifty
percent (50%) of the book value, determined by the Company in accordance with
generally accepted accounting principles of the Company's assets determined on a
consolidated basis immediately before such transaction or the first of such
transactions; or The merger, consolidation, share exchange or reorganization of
the Company (or one or more subsidiaries of the Company) as a result of which
the holders of all of the shares of capital stock of the Company as a group
would receive less than fifty percent (50%) of the voting power of the capital
stock or other interests of the surviving or resulting corporation or entity; or
The adoption of a plan of liquidation or the approval of the dissolution of the
Company; or The commencement (within the meaning of SEC Rule 14d 2 under the
Exchange Act) of a tender or exchange offer which, if successful, would result
in a change of control of the Company.
9. Non-Competition and Non-Solicitation.
9.1 Premises for Covenants. The Employee acknowledges that the Company, through
its employment of the Employee, will provide Employee with certain special,
unique, extraordinary, and valuable confidential business and professional
information, substantial business and professional contacts and relationships,
and the ability to have access to the Company's vendors, customers, employees,
and consultants and other professionals and service providers. The Employee
further acknowledges that such confidential information, business and
professional contacts, and the ability to have access to the Company's customers
and clients are solely the result of his/her employment by the Company, and that
they constitute valuable, legitimate, and protectible business interests of the
Company. In consideration of the foregoing and of the benefits generally
provided to the Employee by the Company pursuant to the terms of this Agreement
and otherwise, the Employee agrees to abide and be bound by the restrictions and
prohibitions of this Section 9.1 and Section 6 hereof, which restrictions are
intended by the parties to extend to any and all activities of the Employee,
whether as an independent contractor, consultant, officer, director, agent,
employee, partner, joint venturer, stockholder, or member of or for any person,
firm, partnership, corporation or other entity, or otherwise.
9.2 Prohibition Against Competition During the term of the Employee's
employment, whether pursuant to this Agreement, or otherwise, and for a period
of twenty-four (24) months following the termination of employment consistent
with the terms hereof or expiration of this Agreement or any extension thereto,
the Employee shall not, directly or indirectly, within the United States (the
"Restricted Territory"), be engaged or employed by, consult with, assist or
participate in any manner whatsoever, or provide financing with or for any
entity, regardless of form, or person, that is engaged in a business competitive
with Company at the time of termination or expiration, including, without
limitation any of which utilizes internet connectivity for in-theater media
related to the above said areas. Notwithstanding the foregoing, the restrictive
covenants contained in this Section 9.2 shall not apply if Employee is
terminated without cause.
9.3 Prohibition Against Solicitation: During the term of the Employee's
employment, whether pursuant to this Agreement, any automatic or other renewal
hereof, or otherwise, and for a period of twenty-four (24) months following the
termination of such employment consistent with the terms hereof, or the
expiration of this Agreement or any extension thereto, the Employee shall not,
directly or indirectly, solicit or otherwise communicate with any of the
employees, vendors or customers of the Company with the purpose of causing such
person or entity to terminate their employment or business relationship with the
Company, as the case may be. In addition, the Employee agrees that during such
period he/she shall not, directly or indirectly, (i) engage, employ, or
otherwise hire any of the employees of the Company, or (ii) provide products or
services to any person or entity who was a customer of, or is or was in
substantive discussions with Company with respect to becoming a customer of
Company.
9.4 Automatic Extension of Restricted Time Period: The period of time during
which the Employee is prohibited from engaging in certain business practices
pursuant to Sections 9.1, 9.2 or 9.3 shall be extended by the length of time
during which the Employee is in breach of such covenants.
9.5 Restrictive Covenants as Essential Elements of this Agreement: It is
understood by and between the parties hereto that the foregoing restrictive
covenants set forth in Sections 9. 1 - 9.3 are essential elements of this
Agreement, and that, but for the agreement of the Employee to comply with such
covenants, the Company would not have agreed to enter into this Agreement. The
existence of any claim or cause of action of the Employee against the Company,
whether predicated on this Agreement, or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants unless and until
Company has been given written notice by Employee of such claim or cause of
action and has been given reasonable opportunity to cure same.
9.6 Divisibility of Covenants; Survivability:
(a) It is agreed by the Company and the Employee that if any portion of the
covenants set forth in this Section 9 are held to be invalid, unreasonable,
arbitrary, or against public policy, then such portion of such covenants
shall be considered divisible as to scope, time and geographical area. The
Company and the Employee agree that, if any court of competent jurisdiction
determines the specified commercial activities, time period or geographic
area applicable to this Section 9 to be invalid, unreasonable, arbitrary or
against public policy, a lesser scope or commercial activity, time period
or geographic area which is determined to be reasonable, non-arbitrary and
not against public policy may be enforced against the Employee. The Company
and the Employee agree that the foregoing covenants are appropriate and
reasonable when considered in light of the nature and extent of the
business conducted by the Company.
(b) Except as otherwise provided for in this Agreement, the restrictive
covenants and the duties, obligations, responsibilities and covenants of
the Employee herein contained shall be deemed independent and separable
from the rest of this Agreement and shall survive the execution and any
termination or expiration hereof, and in the event of termination or
expiration hereof shall continue to bind the parties hereto and continue in
full force and effect until each and every obligation herein shall have
been fully performed.
9.7 Specific Performance. The Employee hereby acknowledges and agrees that any
violation by him/her of any provision of Section 6 of this Agreement or this
Section 9 shall cause the Company irreparable harm and damage, and the Employee
further acknowledges and agrees that damages at law shall be an insufficient
remedy to the Company if the Employee violates the terms of Sections 6 or 9 of
this Agreement. Accordingly, it is agreed that the Company shall be entitled,
upon application to a court of competent jurisdiction, to obtain injunctive
relief to enforce the provisions of such sections, which injunctive relief shall
be in addition to any other rights or remedies available to the Company.
10. Miscellaneous.
10.1 No Waivers. The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver of any such provision, nor prevent
such party thereafter from enforcing such provision or any other provision of
this Agreement.
10.2 Notices. Any notice to be given to the Company and Employee under the terms
of this Agreement may be delivered personally, by telecopy, telex or other form
of written electronic transmission, or by registered or certified mail, postage
prepaid, and shall be addressed as follows:
If to the Company:
James A. McManus
Distributed Media Corporation, Inc.
20 Ketchum Street
Westport, CT 06880
Facsimile no.: (203) 226-3509
If to Employee:
Allan Martin
DMC Cinema
20 Ketchum Street
Westport, CT 06880
Either party may hereafter notify the other in writing of any change in address.
Any notice shall be deemed duly given (i) when personally delivered, (ii) when
telecopied, telexed or transmitted by other form of written electronic
transmission (upon confirmation of receipt) or (iii) on the third day after it
is mailed by registered or certified mail, postage prepaid, as provided herein.
10.3 Severability. The provisions of this Agreement are severable and if any
provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
10.4 Successors and Assigns. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the Company, including the survivor upon any merger,
consolidation, share exchange or combination of the Company with any other
entity. Employee shall not have the right to assign, delegate or otherwise
transfer any duty or obligation to be performed by him/her hereunder to any
person or entity.
10.5 Entire Agreement. This Agreement, including all exhibits, schedules,
appendices, and attachments is the entire agreement among the parties and
supersedes all prior and contemporaneous agreements and understandings between
the parties hereto, oral or written, and may not be modified or terminated
orally. No modification, termination or attempted waiver shall be valid unless
in writing, signed by the party against whom such modification, termination or
waiver is sought to be enforced. This Agreement was the subject of negotiation
by the parties hereto and their counsel. The parties agree that no prior drafts
of this Agreement shall be admissible as evidence (whether in any arbitration or
court of law) in any proceeding which involves the interpretation of any
provisions of this Agreement.
10.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut.
10.7 Section Headings. The section headings contained herein are for the
purposes of convenience only and are not intended to define or limit the
contents of said sections.
10.8 Further Assurances. Each party hereto shall cooperate and shall take such
further action and shall execute and deliver such further documents as may be
reasonably requested by the other party in order to carry out the provisions and
purposes of this Agreement.
10.9 Gender. All pronouns and variations thereof shall be deemed to refer to the
masculine, feminine or neuter, and to the singular or plural, as the identity of
the person or entity or person or entities may require.
10.10 Counterparts. This Agreement may be executed in counterparts, all of which
taken together shall be deemed one original.
10.11 Survival of Certain Provisions. The provisions of Sections 6, 7 and 8 of
this Agreement shall survive the termination of this Agreement.
10.12 Dispute Resolution. In the event that a dispute arises over the
interpretation or enforcement of the terms and conditions of this Agreement, the
venue shall be before the American Arbitration Association in New York, New
York.
10.13 Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE THE RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THIS AGREEMENT OR
THE SUBJECT MATTER OF THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY,
AND VOLUNTARILY MADE BY THE PARTIES AND THE PARTIES ACKNOWLEDGE THAT NO PERSON
ACTING ON BEHALF OF ANOTHER PARTY TO THIS AGREEMENT HAS MADE ANY REPRESENTATIONS
OF FACT TO INDUCE THIS WAIVER OF TRAIL BY JURY OR IN ANY WAY TO MODIFY OR
NULLIFY ITS EFFECT THE PARTIES HERETO FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN
REPRESENTED (OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF
THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL BEFORE SIGNING THIS AGREEMENT
10.14 Prior Agreements. This Agreement supersedes and replaces any prior
Employment Agreements and Option Agreements between the parties, including their
respective subsidiary companies and/or affiliate entities.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
hereunto executed this Agreement as of the day and year first above written.
Distributed Media Corporation, Inc A Delaware Corporation
By: /s/ JAMES MCMANUS
Name: James A. McManus
Title: 'President and C.E.O.
/s/ ALLAN MARTIN
Name: Allan Martin
Title: C.E.O. DMC Cinema
NCT Group, Inc. Guarantee in regard to severance payments .
/s/ MICHAEL PARRELLA
Name: Michael Parrella
Title: President and C.E.O., NCT Group, Inc. A Delaware Corp.