Employment Agreement - Colorado Satellite Broadcasting Inc. and Daniel Bender
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of ________________ 1997, is made and
entered into by and between COLORADO SATELLITE BROADCASTING, INC., a Colorado
corporation ("Company") and DANIEL BENDER ("Employee"). For the definition of
certain terms used in this Agreement, see Section 6 below.
The Company and Employee agree as follows:
Section 1. EMPLOYMENT.
1.1 ENGAGEMENT. The Company will employ Employee, and Employee
will accept employment, as an Employee of Company for the Term, subject to
and in accordance with the provisions of this Agreement.
1.2 DUTIES. During the Term, Employee will serve Company in
the capacity of Vice President or such other capacity as may be designated by
the Board, or C.E.O. Employee's duties as an Employee of Company include all
of the duties normally associated with such capacity, including but not
limited to those listed in Schedule A. Additionally, Employee's duties will
include such other activities, responsibilities and duties as may reasonably
be assigned from time to time by the C.E.O. or the Board. If Employee is
elected or appointed by the Board as an officer or other position with
Company, Employee will perform the duties of such position as described in
the Company's bylaws or as determined from time to time by the Board.
1.3 ATTENTION AND EFFORT. During normal business hours, for
such periods of time as the Company has specific projects assigned to
Employee, Employee will devote Employee's best efforts, entire productive
time, ability and attention to the business of Company. For such periods of
time as there are no specific projects assigned to Employee, Employee shall
only be required to devote such time, effort and attention to the affairs of
the Company as may from time to time be requested by the President or Board,
subject to the agreement of Employee. Further, during the Term, Employee will
not, without Company's prior written consent, directly or indirectly engage
in any employment, consulting or other activity which would interfere or
conflict with the performance of Employee's duties or obligations to Company
or which would directly or indirectly compete with Company.
Section 2. COMPENSATION.
2.1 BASE SALARY. During the Term, Company will pay Employee a
base salary payable bi-weekly, as follows:
a. Commencing on the date hereof, the base salary shall
initially be $100,000.00 per year.
2.2 INCENTIVE COMPENSATION. In addition to base salary
described in paragraph 2.1, Employee shall be entitled to participate as an
executive officer in the Company's
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Management Bonus Plan, as such plan may be adopted and modified from time to
time by the Board of Directors during the Term.
2.3 STOCK INCENTIVE PLAN. Employee shall be entitled and
eligible to participate in the Stock Plan of New Frontier Media, Inc., the
Company's parent company, as an executive officer and key employee of the
Company on the same basis as other executive officers of New Frontier Media,
Inc., as determined and modified from time to time by the Board of Directors.
All incentive stock options granted to Employee pursuant to the Stock Plan
shall permit the cashless exercise of such options in conformity with
applicable legal requirements.
2.4 BENEFITS. During the Term, Employee will be entitled to
participate in such fringe benefit programs (E.G., medical, dental,
disability, life insurance and vacation programs) as may be provided from
time to time by the Board or any person or committee appointed by the Board
to determine fringe benefit programs, all subject to and in accordance with
the eligibility and other requirements of such programs. Additionally,
Employee shall be entitled to receive an automobile expense allowance of not
more than $600.00 per month, plus automobile insurance.
2.5 EXPENSES. During the Term, Company will reimburse Employee
for reasonable out-of-pocket expenses incurred by Employee in performance of
service for Company under this Agreement (E.G., including business class
airfare for international flights and corporate upgrade for domestic flights
and other reasonable business transportation expenses, lodging and food
expenses incurred while traveling on Company business), and an entertainment
expense allowance in an amount approved by the Board, all subject to such
policies and other requirements as Company may from time to time establish
for its Employees generally.
2.6 WITHHOLDING AND OFFSET. Payment of the base salary and any
other amounts to Employee will be subject to such withholding and offset only
as required for tax purposes or legal process (E.G., for deposition subpoena)
or as consented to by Employee.
2.7 INDEMNIFICATION. Subject to applicable law, the Company
shall indemnify and hold Employee harmless from any and all loss, judgments
or claims Employee may suffer in the proper discharge of Employee's duties
hereunder, including, but not limited to attorney's fees and court costs.
Section 3. TERMS AND TERMINATION.
3.1 TERM. This Agreement shall commence upon execution and closing of
Asset Purchase Agreement dated September 5, 1997 between Colorado Satellite
Broadcasting, Inc. and New Frontier Media, Inc, as buyers and Fifth Dimension
Communications (Barbados) Inc. and Merlin Sierra, Inc., as sellers, and shall
continue in full force and effect for a period of one (1) year thereafter,
unless terminated earlier by operation of and in accordance with this
Agreement. This Agreement may only be extended thereafter by mutual
agreement, unless terminated earlier by operation of and in accordance with
this Agreement.
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3.2 TERMINATION. The Term will terminate upon the first of the
following to occur:
(a) Upon the expiration of the term of this agreement;
(b) Company's termination of Employee's Employment for
Cause pursuant to paragraph 3.3;
(c) Employee resigns from employment as an Employee
of Company pursuant to paragraph 3.4;
(d) Employee terminates his employment for Cause
pursuant to paragraph 3.5,
(e) the death of Employee;
(f) the disability of Employee resulting from injury,
illness or disease, whether of a mental or
physical nature, which substantially impairs or
prevents the ability of Employee to satisfactorily
perform Employee's duties and obligations under
this Agreement for a period of 90 days;
(g) the Change in Control of the Company; or
If the Employee is terminated pursuant to subparagraph 3.2(a), (b),
(c), (e), or (f) the Employee shall be entitled to no additional compensation
under Section 2 herein. However, if an Employee is terminated pursuant to
subparagraphs 3.2(d) or (g), Employee shall be entitled to receive the
Termination Payments provided for in Section 3.8 below.
3.3 TERMINATION FOR CAUSE. Company may at any time terminate Employee's
employment for Cause without prior notice.
3.4 RESIGNATION. Employee may at any time resign from employment with
Company by giving Company notice of thirty (30) days prior to the effective
date of such termination.
3.5 TERMINATION FOR CAUSE BY EMPLOYEE. Employee may at any time
terminate Employee's employment for Cause without prior notice.
3.6 TERMINATION DUE TO CHANGE IN CONTROL. Employee may terminate
Employee's employment due to a Change in Control without prior notice.
3.7 DISABILITY. If in the event of a disability described in paragraph
3.2(f) Company decides not to terminate Employee's employment and Employee is
entitled to receive payments (I.E., in lieu of wages or other compensation
for employment) on account of such disability under any fringe benefit
program provided by Company, the base salary described in paragraph 2.1 will
be reduced to the extent of such entitlement.
3.8 TERMINATION PAYMENTS. In the event the Employee's employment is
terminated pursuant to paragraph 3.2(d) or (g), the Company shall be
obligated to pay to Employee Termination Payments equal to the pro rata
portion of the Employee's average annualized total compensation under this
Agreement, including base salary, incentive
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compensation, commissions, bonuses, fringe benefits and other forms of
compensation, remaining on the Term of this Agreement as defined in Section
3.1 above. Such Termination Payments shall be due and payable in full within
thirty (30) days following the date of such Termination.
3.9 RETURN OF COMPANY PROPERTY. Upon termination of the Term, Employee
will deliver to Company any and all property of Company which is in
Employee's possession or control (including, but not limited to, any and all
Materials).
3.10 SURVIVAL. Sections 4 and 5, together with all other provisions of
this Agreement that may reasonably be interpreted or construed to survive any
termination of the Term, will survive any termination of the Term.
Section 4. CONFIDENTIALITY.
4.1 CONFIDENTIAL INFORMATION. In the course of Employee's employment
with Company, Employee will have access to certain Confidential Information.
Employee will use and disclose Confidential Information solely for the
purposes for which it is provided and will take reasonable precautions to
prevent any unauthorized use or disclosure of the same. Except as my be
required by legal process, Employee will not use or disclose any Confidential
Information (a) other than as required in the course of Employee's employment
with the Company, (b) for Employee's own personal gain, or (c) in any manner
contrary to the best interests of Company.
4.2 PROPRIETARY INFORMATION OF OTHERS. Except as may be required by
legal process, Employee will not use in the course of Employee's employment
with Company, or disclose or otherwise make available to Company any
information, documents or other items which Employee may have received from
any other person (E.G., a prior employer) and which Employee is prohibited
from so using, disclosing or making available (E.G., by reason of any
contract, court order, law or obligation by which Employee is bound).
4.3 WORK PRODUCT. All Work Product which Employee conceives, develops or
first reduces to practice, either alone or with others, during the Term will
be the sole and exclusive property of Company, together with any and all
related Intellectual Property Rights. The foregoing applies to all Work
Product which relates to Employee's performance of services under this
Agreement, Company's Field of Business or Company's actual or demonstrably
anticipated research or development and whether or not such Work Products are
conceived, developed or first reduced to practice during normal business
hours or with the use of any equipment, supplies, facilities, personnel,
Confidential Information or other resource of Company.
4.4 DISCLOSURE AND PROTECTION OF WORK PRODUCTS. Employee will disclose
all Work Products described in paragraph 4.3 to Company, promptly and in
writing. At Company's request and at Company's expense, Employee will assist
Company or its designee in efforts to protect such Work products. Such
assistance may include, but is not necessarily limited to, the following: (a)
making application in the United States and in foreign countries for a patent
or copyright on any Work Products specified by Company;
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(b) executing documents of assignment to Company or its designee of all
Employee's right, title and interest in and to any Work Product and related
Intellectual Property Rights; and (c) taking such additional action
(including, but not limited to, the execution and delivery of documents) to
perfect, evidence or vest in Company or its designee all rights, title and
interest in and to any Work Product and any related Intellectual Property
Right.
4.5 MATERIALS. All Materials and related Intellectual Property Rights
will be the sole and exclusive property of Company, whether or not such
Materials are marked with any Intellectual Property Right notice of Company
or Employee. All such Materials authored, made, conceived or developed by
Employee or made available to Employee (or any copies or extracts thereof)
will be held by Employee in trust solely for the benefit of Company. Employee
will use such Materials only as required in the course of Employee's
employment with Company or as otherwise authorized in writing by Company.
4.6 NOTICE. This Agreement does not apply to any invention, process,
list or other work product for which no equipment, supplies, facility or
trade secret information of Company was used, and which was developed
Employee prior to the term of this Agreement or which was developed entirely
on Employee's own time during the term of this Agreement, unless: (a) the
invention relates (i) directly to the Company or (ii) to Company's actual or
demonstrable anticipated research or development; of (b) the invention
results from any work performed by Employee for Company.
Section 5. NONCOMPETITION AND NONSOLICITATION.
5.1 NONCOMPETITION. During the Term, Employee will not directly or
indirectly be employed by, own, manage, operate, join, control or participate
in the ownership, management, operation or control of or be connected with
any business activity which is within Company's Field of Business within a
radius of 100 miles from any geographical territory or location where the
Company transacts business. For purposes of the foregoing, Employee will be
deemed to be connected with such business if the business is carried on by:
(a) a partnership in which the Employee is general or limited partner; (b) a
corporation of which Employee is a shareholder (other than a shareholder
owning less than 5% of the total outstanding shares of the corporation),
officer, or director, or is any employee, consultant, agent, member or other
representative.
5.2 NONSOLICITATION. During the Term, employee will not directly or
indirectly solicit or entice any of the following to cease, terminate or
reduce any relationship with Company or to divert any business from Company:
(a) any employee, consultant or representative of Company; (b) any contractor
or supplier of Company; (c) any customer or client of Company; or (d) any
prospective customer or client from which Employee solicited business within
the last year of the Term. Further, Employee will not directly or indirectly
disclose the names, addresses, telephone numbers, compensation, or
arrangements between Company and any person or entity described in (a), (b)
or (c) above to any competitor of Company.
Section 6. DEFINITIONS.
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Whenever used in this Agreement with initial letters capitalized, the
following terms will have the following specified meanings:
6.1 "BOARD" means Company's Board of Directors.
6.2 "CAUSE," for purposes of paragraph 3.3, shall include the
occurrence of any of the following:
a. The Employee commits material breach of the terms of this
Agreement, which shall remain uncured for a period of thirty (30) days after
written notice by the Company of such breach;
b. The Employee is shown to have engaged in any act of
dishonesty detrimental to the Company, or fraud upon the Corporation, any of
its affiliated companies, or any of its customers or clients;
c. The Employee fails to devote his full time, attention and
efforts to the business and affairs of the Corporation or its affiliated
companies which condition remains uncured for a period of thirty (30) days
after written notice by the Company; or
d. The Employee has been grossly negligent in the performance
of his employment duties or responsibilities which condition remains uncured
for a period of thirty (30) days after written notice by the Company.
6.3 "CAUSE," for purposes of paragraph 3.5, shall include the occurrence
of any of the following:
a. The breach or violation by the Company of any of the
material terms of this Agreement, which shall remain uncured for a period of
thirty (30) days after written notice by Employee of such breach;
b. Any move of the Company or its principal officers
resulting in or any other requirement that the Employee, without his consent,
change his principal residence; or
c. The Company has shown to have engaged in any active
material dishonesty or fraud upon the Employee.
6.4 "CHANGE OF CONTROL" means any transaction of the Company involving
(i) the merger or consolidation of the Company into or with another entity
where the Company's shareholders receive less than 50% of the outstanding
voting securities of the new or continuing entity, (ii) the sale of all or
substantially all of the Company's assets, (iii) any person not already a
stockholder of the Company becoming a beneficial owner, directly or
indirectly, of the securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities, (iv) a
change in the majority of the Board of Directors of the Company, or (v) the
Company terminating its business or liquidating its assets.
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6.5 "C.E.O." means Company's Chief Executive Officer.
6.6 "COMPANY'S FIELD OF BUSINESS" means any of the fields of the
Company's business. On the date of the Agreement, Company's Field of Business
includes, but is not necessarily limited to, the following: satellite
broadcasting of adult programming material.
6.7 "CONFIDENTIAL INFORMATION" means any information that is
confidential, proprietary or trade secret information of Company or any of
its customer or clients or any other information the use of which by Company
is prohibited or restricted (E.G., by reason of any contract, court order,
law or other obligation by which Company is bound). "Confidential
Information" may include, but is not necessarily limited to, technology,
computer programs, business plans, marketing plans, information as to
existing or future products or services of Company, financial projections,
unpublished works of original authorship, customer, distributor and supplier
lists, financial information and trade secrets.
Notwithstanding the foregoing, the restrictions on disclosure and
use of information and materials as set forth in Section 4 shall not apply to
the following, and the following is not confidential or proprietary
information: (1) any information or materials which were generally available
to the public at the time made available to Employee by the Company; (2) any
information or materials which become, without breach of Section 4 and
through no fault of Employee, generally available to the public; (3) any
information or materials which Employee has received from other sources prior
to the date of this Agreement, subject to no restrictions on disclosure
applicable to Employee; and (4) any information or materials which Employee
at any time lawfully obtains from a third party who is not under any
obligation of secrecy or confidentiality to the Company, under circumstances
permitting disclosure by Employee to others without restriction.
6.8 "INTELLECTUAL PROPERTY RIGHT" means any patent, copyright, trade
secret, trade name, trademark or other intellectual property right.
6.9 "MATERIALS" means hardware, software, programs, manuals, drawings,
designs, articles, writings, data, notes, memorandum, manuscripts, notebooks,
proposals, work plans, interim and final report, project files, client
contract records and other tangible manifestations of any Confidential
Information or Work Products.
6.10 "PRESIDENT" means Company's President.
6.11 "TERM" means the term of Employee's employment as an Employee of
Company pursuant to this Agreement.
6.12 "WORK PRODUCT" means any customer, supplier and distributor list and
other acquired accounts, invention, discovery, concept or idea (including,
but not necessarily limited to, hardware, software programs, or processes,
techniques, know-how, methods, systems, improvements, analytical reports and
other developments.)
Section 7. MISCELLANEOUS.
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7.1 COMPLIANCE WITH LAWS. In the performance of this Agreement, each
party will comply with all applicable laws, regulations, rules, orders and
other requirements of governmental authorities having jurisdiction.
7.2 EQUITABLE RELIEF. Employee acknowledges that: the provisions of
Sections 4 and 5 are essential to Company; Company would not enter into this
Agreement if it did not include such provisions; the damages sustained by
Company as a result of any breach of such provisions cannot be adequately
remedied by damages; and, in addition to any other right or remedy that
Company may have (E.G., under this Agreement, by law or otherwise), Company
will be entitled to injunctive and other equitable relief to prevent or
curtail any breach of any such provisions.
7.3 NONWAIVER. The failure of either party to insist upon or enforce
strict performance by the other of any provision of this Agreement or to
exercise any right, remedy or provision of this Agreement will not be
interpreted or construed as a waiver or relinquishment to any extent of such
party's right to consent or rely upon the same in that or any other instance;
rather, the same will be and remain in full force and effect.
7.4 ENTIRE AGREEMENT. This Agreement constitutes the Entire Agreement,
and supersedes any and all prior Agreements, between Company and Employee. No
amendment, modification or waiver of any of the provision of this Agreement
will be valid unless set forth in a written instrument signed by the party to
be bound thereby.
7.5 APPLICABLE LAW. This Agreement will be interpreted, construed and
enforced in all respects in accordance with the local laws of the State of
Colorado, without reference to its choice of law rules.
7.6 ATTORNEYS FEES. In the event that either party consults or retains
an attorney to enforce the terms of this Agreement, the prevailing party in
any such dispute or litigation shall be entitled to recover from the other
party its reasonable attorneys fees and costs incurred.
7.7 SEVERABILITY. If any of the provisions of this Agreement are held to
be invalid or unenforceable, the remaining provisions shall nevertheless
continue to be valid and enforceable to the extent permitted by law.
COMPANY: COLORADO SATELLITE BROADCASTING, INC.,
a Colorado corporation
By:
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Its:
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EMPLOYEE:
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Daniel Bender