Employment Agreement - New Frontier Media Inc. and Karyn L. Miller
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EMPLOYMENT AGREEMENT
BETWEEN
KARYN L. MILLER
AND
NEW FRONTIER MEDIA, INC.
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AUGUST 1, 1999
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TABLE OF CONTENTS
PAGE NO.
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1. EMPLOYMENT PERIOD............................................... 1
2. TERMS OF EMPLOYMENT............................................. 1
A. POSITION AND DUTIES.................................... 1
B. COMPENSATION........................................... 1
3. EARLY TERMINATION OF EMPLOYMENT................................. 3
A. DEATH OR DISABILITY.................................... 3
B. CAUSE.................................................. 3
C. GOOD REASON............................................ 4
D. TERMINATION FOR OTHER REASONS.......................... 4
E. NOTICE OF TERMINATION.................................. 4
F. DATE OF TERMINATION.................................... 4
4. OBLIGATIONS OF NOOF UPON EARLY TERMINATION...................... 5
A. ACCELERATING EVENT..................................... 5
B. GOOD REASON; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. 5
C. DEATH.................................................. 6
D. CAUSE; OTHER THAN FOR GOOD REASON...................... 6
E. DISABILITY............................................. 6
F. NONDISCLOSURE TO MEDIA................................. 6
5. CHANGE IN CONTROL............................................... 7
A. DEFINED................................................ 7
B. ACCELERATING EVENT..................................... 7
6. NONEXCLUSIVITY OF EXECUTIVE'S RIGHTS............................ 7
7. CONFIDENTIAL INFORMATION........................................ 7
8. NON-COMPETE; NON-SOLICITATION................................... 8
9. REMEDIES FOR EXECUTIVE'S BREACH................................. 9
10. DISPUTE RESOLUTION.............................................. 9
11. NO CONFLICTING OBLIGATIONS OF EXECUTIVE......................... 10
12. INDEMNITY OF EXECUTIVE.......................................... 10
13. SUCCESSORS...................................................... 10
14. MISCELLANEOUS................................................... 10
(i)
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of August 1, 1999
between KARYN L. MILLER, an individual (the "Executive"), and NEW FRONTIER
MEDIA, INC. ("NOOF"), a Colorado corporation, recites and provides as follows:
WHEREAS, the Board of Directors of NOOF (the "Board") desires that NOOF
retain the services of the Executive, and the Executive desires to remain
employed with NOOF, all on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, NOOF and the Executive agree as follows:
1. EMPLOYMENT PERIOD. NOOF hereby agrees to employ the Executive, and
the Executive hereby agrees to accept employment by NOOF, in accordance with the
terms and provisions of this Agreement, for the period commencing on the date of
this Agreement (the "Effective Date") and ending at midnight on July 31, 2002
(the "Employment Period").
2. TERMS OF EMPLOYMENT.
A. POSITION AND DUTIES
(i) During the Employment Period, the Executive
shall serve as Chief Financial Officer of NOOF and shall have such authority and
perform such executive duties as are commensurate with that position.
(ii) During the Employment Period, and excluding
any periods of vacation and leave to which the Executive is entitled, the
Executive agrees to devote reasonable attention and time during normal business
hours to the business and affairs of NOOF and, to the extent necessary to
discharge the duties assigned to the Executive hereunder, to use the Executive's
reasonable efforts to perform faithfully such responsibilities. During the
Employment Period it shall not be a violation of this Agreement for the
Executive to (A) serve on corporate, civic, charitable, and professional
association boards or committees, (B) deliver lectures or fulfill speaking
engagements and (C) manage personal investments, so long as such activities do
not materially interfere with the performance of the Executive's
responsibilities as an employee of NOOF in accordance with this Agreement.
B. COMPENSATION.
(i) Base Salary. During the Employment Period,
the Executive shall receive a base salary ("Annual Base Salary"), which shall be
paid in equal installments on a bi-weekly basis, at the annual rate of not less
than One Hundred Thousand Dollars ($100,000) per year. During the Employment
Period, the Annual Base Salary shall be reviewed at least annually
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by the Compensation Committee of the Board of Directors of NOOF. Any increase in
Annual Base Salary shall not serve to limit or reduce any other obligation to
the Executive under this Agreement. Annual Base Salary shall not be reduced and
the term "Annual Base Salary" as used in this Agreement shall mean the Annual
Base Salary as so increased.
(ii) Short-Term Incentive Bonus. In addition to
Annual Base Salary, the Executive shall participate in an annual incentive bonus
plan. Such plan shall provide the Executive with the opportunity to earn a bonus
based on satisfaction of performance criteria of EBITDA (i.e., earnings before
interest, taxes, depreciation and amortization) of NOOF. Specifically, the
Executive shall be entitled to receive a bonus equal to:
(a) $10,000, if NOOF=s EBITDA for any fiscal
year during the Employment Period exceeds $3
million; or
(b) $20,000, if NOOF's EBITDA for any fiscal
year during the Employment Period exceeds $5
million; or
(c) $50,000, if NOOF=s EBITDA for any fiscal
year during the Employment Period exceeds $6
million.
The bonus payable pursuant to this Section 2(B)(ii) for any fiscal year
shall be paid to the Executive in estimated quarterly payments, with the
year-end payment due no later than the 30th day following the issuance of the
audited financial statements of NOOF for such year. The first full annual period
shall be April 1, 2000 to March 31, 2001 and there shall be a prorated partial
period from the date hereof to March 31, 2000.
(iii) Long-Term Incentives. During the Employment
Period, the Executive shall be entitled to participate in long-term incentive
plans and programs applicable generally to other peer executives of NOOF. Such
participation shall commence with respect to NOOF's 1999 fiscal year.
(iv) Savings and Retirement Plans. During the
Employment Period, the Executive shall be entitled to participate in all savings
and retirement plans, practices, policies and programs applicable generally to
other peer executives of NOOF, including any 401(k) plan maintained by NOOF.
(v) Welfare Benefit Plans. During the Employment
Period, the Executive and/or the Executive's family and dependents, as the case
may be, shall be eligible for participation in and shall receive all benefits
under all welfare benefit plans, practices, policies and programs provided by
NOOF (including, without limitation, medical, prescription, dental, disability,
salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other peer executives of NOOF.
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(vi) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for all
employment-related expenses incurred by the Executive in accordance with the
most favorable policies, practices and procedures of NOOF as in effect generally
from time to time after the Effective Date with respect to other peer executives
of NOOF.
(vii) Car Allowance; Other Fringe Benefits. During
the Employment Period: (i) the Executive shall be entitled to a $400 a month car
allowance; and (ii) the Executive and/or the Executive's family and dependents
shall also be entitled to other fringe benefits in accordance with the most
favorable plans, practices, programs and policies of NOOF as in effect generally
from time to time after the Effective Date with respect to other peer executives
of NOOF.
(viii) Office and Support Staff. During the
Employment Period, the Executive shall be entitled to retain the same office as
she currently uses with the same furnishings and other appointments, and to
secretarial and other assistance, and to facilities and equipment, at least
equal to the most favorable of the foregoing provided generally from time to
time after the Effective Date with respect to other peer executives of NOOF.
(ix) Vacation. During the Employment Period, the
Executive shall be entitled to paid vacation in accordance with the most
favorable plans, policies, programs and practices of NOOF as in effect generally
from time to time after the Effective Date with respect to other peer executives
of NOOF, provided that the vacation will not be not less than four (4) weeks per
year.
3. EARLY TERMINATION OF EMPLOYMENT.
A. DEATH OR DISABILITY. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
If NOOF determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of disability
set forth below), it may give to the Executive notice of its intention to
terminate the Executive's employment. In such event, the Executive's employment
with NOOF shall terminate effective on the thirtieth (30th) day after receipt of
such notice by the Executive (the "Disability Effective Date"), provided that,
within the thirty (30) days after such receipt, the Executive shall not have
returned to full-time performance of the Executive's duties. For purposes of
this Agreement, "Disability" shall mean the absence of the Executive from the
Executive's duties with NOOF on a full-time basis for one hundred eighty (180)
consecutive business days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
NOOF or its insurers and acceptable to the Executive or the Executive's legal
representative (such agreement as to acceptability not to be withheld
unreasonably).
B. CAUSE. NOOF may terminate the Executive's employment during
the Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean (i) the conviction of the Executive for committing an act of fraud,
embezzlement, theft or other act constituting a felony or the guilty or nolo
contendere plea of the Executive to such a felony; (ii) a material act of
dishonesty or breach of trust on the part of the Executive resulting or
intending to
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result directly or indirectly in material personal gain or enrichment at the
expense of NOOF; or (iii) Executive's continuing, repeated, willful failure or
refusal to perform her duties required by this Agreement, provided that
Executive shall have first received written notice from NOOF stating with
specificity the nature of such failure and refusal and affording Executive an
opportunity, as soon as practicable, to correct the acts or omissions complained
of.
C. GOOD REASON. The Executive may terminate her employment for
Good Reason. For purposes of this Agreement, "Good Reason" shall mean, in the
absence of the consent of the Executive, a reasonable determination by the
Executive that any of the following has occurred:
(i) the assignment to the Executive of any
duties inconsistent in any material respect with the Executive's position
(including status, offices, titles and reporting requirements), authority,
duties or responsibilities as contemplated by Section 2(A) of this Agreement, or
any other action by NOOF which results in a material diminution in such
position, authority, duties or responsibilities, excluding for this purpose an
isolated and insubstantial action not taken in bad faith and which is remedied
by NOOF promptly after receipt of notice thereof given by the Executive; or
(ii) any failure by NOOF to comply with any of
the provisions of this Agreement applicable to it, other than any isolated and
insubstantial failure not occurring in bad faith and which is remedied promptly
after notice thereof from the Executive.
D. TERMINATION FOR OTHER REASONS. NOOF may terminate the
employment of the Executive without Cause by giving notice to the Executive at
least sixty (60) days prior to the Date of Termination. The Executive may resign
from her employment without Good Reason hereunder by giving notice to NOOF at
least sixty (60) days prior to the Date of Termination.
E. NOTICE OF TERMINATION. Any termination shall be
communicated by Notice of Termination to the other party. For purposes of this
Agreement, a "Notice of Termination" means a notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated and (iii) if the Date of Termination (as defined below)is
other than the date of receipt of such notice, specifies the termination
date(which date shall be not more than fifteen (15) days after the giving of
such notice, unless otherwise required by Section 3(F)). The failure by the
Executive or NOOF to set forth in the Notice of Termination any fact or
circumstance shall not waive any right of the Executive or NOOF hereunder or
preclude the Executive or NOOF from asserting such fact or circumstance in
enforcing the Executive's or NOOF's rights hereunder.
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F. DATE OF TERMINATION. "Date of Termination" shall mean (i)
if the Executive's employment is terminated by NOOF for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any permitted later date specified therein, as the case may be,(ii) if the
Executive's employment is terminated by NOOF other than for Cause or
Disability or by the Executive other than for Good Reason, the Date of
Termination shall be the sixtieth (60th) day following the date of receipt of
the Notice of Termination or any later date specified therein, as the case
maybe, and (iii) if the Executive's employment is terminated by reason of the
Executive's death or Disability, the Date of Termination shall be the date of
death of the Executive or the Disability Effective Date, as the case may be.
4. OBLIGATIONS OF NOOF UPON EARLY TERMINATION.
A. ACCELERATING EVENT. As used in this Agreement, the term
"Accelerating Event" shall mean any of the following: (i)the Executive's
employment terminates under the circumstances described in Section 3(A), (ii)
the Executive is discharged without Cause, (iii) the Executive resigns with Good
Reason, or (iv) a Change in Control (as defined in Section 5(A)) occurs.
B. GOOD REASON; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If,
during the Employment Period, NOOF shall terminate the Executive's employment
other than for Cause, death or Disability or the Executive shall terminate
employment for Good Reason:
(i) NOOF shall pay to the Executive in a lump
sum in cash within thirty (30) days after the Date of Termination the sum of (A)
the Executive's Annual Base Salary through the Date of Termination to the extent
not theretofore paid; (B) to the extent not theretofore paid, any annual bonus
payable to the Executive for any prior completed fiscal year; (C) the product of
(x) the largest annual bonus paid or payable to the Executive in respect of any
of the three (3) fiscal years immediately preceding the fiscal year in which the
Date of Termination occurs (the "Highest Annual Bonus") and(y) a fraction, the
numerator of which is the number of days in the current fiscal year through the
Date of Termination, and the denominator of which is 365; (D) any compensation
previously deferred by the Executive (together with any accrued interest or
earnings thereon) to the extent not theretofore paid; and (E) any accrued
vacation pay, expense reimbursement and any other entitlements accrued by the
Executive under Section 2(B), to the extent not theretofore paid (the sum of the
amount described in clauses (A), (B), (C), (D)and (E) shall be hereinafter
referred to as the "Accrued Obligations"); and
(ii) NOOF shall pay to the Executive in equal
monthly installments beginning thirty (30) days following the Date of
Termination an amount equal to the larger of (A) the sum of the Executive's
Annual Base Salary and Highest Annual Bonus payable for the remaining term of
this Agreement, or (B) the sum of the Executive's Annual Base Salary and Highest
Annual Bonus payable for 12 months (without duty of mitigation); and
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(iii) If an Accelerating Event involving the
Executive's termination occurs within eighteen (18) months following the date of
this Agreement, NOOF shall pay to the Executive an additional One Hundred
Thousand Dollars ($100,000).
(iv) For the remainder of the Employment Period
(as it would continue but for such early termination), or such longer period as
any plan, program, practice or policy may provide, NOOF shall continue benefits
to the Executive and/or the Executive's family and dependents at least equal to
those which would have been provided to them in accordance with the plans,
programs, practices and policies described in Section 2(B)(vi) if the
Executive's employment had not been terminated, in accordance with the most
favorable plans, practices, programs or policies of NOOF as in effect generally
at any time thereafter with respect to other peer executives of NOOF and their
families ("Welfare Benefit Continuation"). If the Executive becomes reemployed
with another employer and is eligible to receive medical or other welfare
benefits under another employer-provided plan, the medical and other welfare
benefits described herein shall be secondary to those provided under such other
plan during such applicable period of eligibility. For purposes of determining
eligibility (but not the time of commencement of benefits), the Executive shall
be considered to have remained employed until the end of the Employment
Period(as it would continue but for such early termination) and to have retired
on the last day of such period.
C. DEATH. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligation to the Executive's legal
representatives under this Agreement, other than for payment of Accrued
Obligations (which shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within thirty (30) days of the Date of
Termination) and the timely payment or provision of the Welfare Benefit
Continuation.
D. CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's
employment shall be terminated for Cause or the Executive terminates her
employment without Good Reason during the Employment Period, this Agreement
shall terminate without further obligations to the Executive other than the
obligation to pay to the Executive the Accrued Obligations and the amount of any
compensation previously deferred by the Executive, in each case to the extent
theretofore unpaid, all of which shall be paid in cash within thirty (30) days
of the Date of Termination.
E. DISABILITY. If the Executive's employment shall be
terminated by reason of the Executive's Disability during the Employment Period,
this Agreement shall terminate without further obligation to the Executive,
other than for payment of Accrued Obligations and the timely payment or
provision of the Welfare Benefit Continuation. Accrued Obligations shall be paid
to the Executive in a lump sum in cash within thirty (30) days of the Date of
Termination. The Executive shall be entitled after the Disability Effective Date
to receive disability and other benefits as in effect at the Disability
Effective Date with respect to other peer executives of NOOF and their families.
F. NONDISCLOSURE TO MEDIA. After the Date of Termination or
the end of Employment Period, the Executive and NOOF agree that they will not
discuss the Executive's employment and resignation or termination(including the
terms of this Agreement) with any representatives of the media, either directly
or indirectly, without the consent of the other party hereto.
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5. CHANGE IN CONTROL.
A. DEFINED. For purposes of this Agreement, a "Change
in Control" of NOOF shall be deemed to have occurred as of the first day that
any one or more of the following conditions shall have occurred:
(i) Any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Act")), becomes the "beneficial owner" (as defined in Rule 13-d under the Act)
directly or indirectly, of securities representing more than fifty percent (50%)
of the total voting power represented by NOOF's then outstanding voting
securities; or
(ii) A change in the composition of the Board, as
a result of which fewer than a majority of the directors are Incumbent
Directors. "Incumbent Directors" shall mean directors who either (A) are
directors of NOOF as of the date hereof, or (B) are elected, or nominated for
election, to the Board with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or nomination (but shall not
include an individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of directors of
NOOF); or
(iii) NOOF merges or consolidates with any other
corporation after which a majority of the shares of the resulting entity are not
held by the shareholders of NOOF prior to the merger, or NOOF adopts, and the
stockholders approve, if necessary, a plan of complete liquidation of NOOF, or
NOOF sells or disposes of substantially all of its assets.
B. ACCELERATING EVENT. A Change in Control shall be an
Accelerating Event as defined in Section 4(A).
6. NONEXCLUSIVITY OF EXECUTIVE'S RIGHTS. Except as provided in Sections
4(B)(iii), 4(C) and 4(E), nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any plan, program, policy or
practice provided by NOOF or any of its affiliated companies and for which the
Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or agreement with NOOF.
Amounts which are vested benefits or which the Executive is otherwise entitled
to receive under any plan, policy, practice or program of or any contract or
agreement with NOOF at or subsequent to the Date of Termination shall be payable
in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
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7. CONFIDENTIAL INFORMATION.
(i) The Executive shall hold in a fiduciary
capacity for the benefit of NOOF all secret or confidential information,
knowledge or data relating to NOOF or any of its affiliated companies, and their
respective businesses, which shall have been obtained by the Executive during
the Executive's employment by NOOF or any of its affiliated companies and which
shall not be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). After
termination of the Executive's employment with NOOF, the Executive shall not,
without the prior written consent of NOOF or except as may otherwise be required
by law or legal process, communicate or divulge any such information, knowledge
or data to anyone other than NOOF and those designated by it. In no event shall
an asserted violation of the provisions of this Section 7 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive under
this Agreement.
(ii) All records, files, memoranda, reports, price
lists, customer lists, drawings, designs, proposals, plans, sketches, documents,
computer programs, CAD systems, CAM systems, disks, computer printouts and the
like (together with all copies thereof) relating to the business of NOOF, which
Executive shall use or prepare or otherwise have in her possession in the course
of, or as a result of, her employment hereunder shall, as between the parties
hereto, remain the sole property of NOOF. Executive shall use such materials
solely for the benefit of NOOF and shall not divulge any such materials other
than in furtherance of NOOF's interests. Executive hereby agrees that she will
return all such materials, including copies, to NOOF upon demand, or upon the
cessation of her employment.
(iii) Any termination of the Executive's employment
hereunder or of this Agreement shall have no effect on the continuing operation
of this Section 7.
8. NON-COMPETE; NON-SOLICITATION.
(i) Except as is set forth below, for a period
commencing on the Effective Date hereof and ending on the first anniversary of
the date the Executive ceases to be employed by NOOF (the "Non-Competition
Period"), the Executive shall not, directly or indirectly, either for herself or
any other person, own, manage, control, materially participate in, invest in,
permit her name to be used by, act as consultant or advisor to, render material
services for (alone or in association with any person, firm, corporation or
other business organization) or otherwise assist in any manner any business
which is a competitor of a substantial portion of NOOF's business at the date
the Executive ceases to be employed by NOOF (collectively, a "Competitor");
provided, however, that the restrictions set forth above shall immediately
terminate and shall be of no further force or effect (i) in the event of a
default by NOOF of the performance of any of the obligations hereunder, which
default is not cured within ten (10) days after notice thereof, or (ii) if the
Executive's employment has been terminated by NOOF other than for Cause, or
(iii) if the Executive resigns for Good Reason provided that the Executive gives
written notice to NOOF whenever during the Non-Competition Period that she
desires to accept employment with a Competitor; and that the payment specified
in Section 4(B)(ii) hereof shall be mitigated by the amount of salary and pro
rata target bonus payable to the Executive by the Competitor based on the
Executive=s initial terms of employment and attributable to employment during
the Non-Competition Period. Nothing herein shall prohibit the Executive from
being a passive owner of not more than five percent (5%) of the equity
securities of an enterprise engaged in such business which is publicly traded,
so long as she has no active participation in the business of such enterprise.
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(ii) During the Non-Competition Period, the
Executive shall not, directly or indirectly, (i) induce or attempt to induce or
aid others in inducing an employee of NOOF to leave the employ of NOOF, or in
any way interfere with the relationship between NOOF and an employee of NOOF
except in the proper exercise of the Executive's authority, or (ii) in any way
interfere with the relationship between NOOF and any customer, supplier,
licensee or other business relation of NOOF.
(iii) If, at the time of enforcement of this Section
8, a court shall hold that the duration, scope, area or other restrictions
stated herein are unreasonable under circumstances then existing, the parties
agree that the maximum duration, scope, area or other restrictions reasonable
under such circumstances shall be substituted for the stated duration, scope,
area or other restrictions.
(iv) The covenants made in this Section 8 shall be
construed as an agreement independent of any other provisions of this Agreement,
and shall survive the termination of this Agreement. Moreover, the existence of
any claim or cause of action of the Executive against NOOF or any of its
affiliates, whether or not predicated upon the terms of this Agreement, shall
not constitute a defense to the enforcement of these covenants.
9. REMEDIES FOR EXECUTIVE'S BREACH. In the event Executive violates any
provision of Sections 7 or 8 and such violation continues after notice thereof
to the Executive and the expiration of a reasonable opportunity to cure, then
NOOF may thereafter terminate the payment of any post-termination benefits
hereunder, and NOOF will have no further obligation to Executive under this
Agreement. The parties acknowledge that any violation of Section 7 or 8 can
cause substantial and irreparable harm to NOOF. Therefore, NOOF shall be
entitled to pursue any and all legal and equitable remedies, including but not
limited to any injunctions.
10. DISPUTE RESOLUTION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled by binding arbitration, which
shall be the sole and exclusive method of resolving any questions, claims or
other matters arising under this Agreement or any claim that NOOF has in any way
violated the non-discrimination and/or other provisions of Title VII of the
Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act
of 1967, as amended; the Americans with Disabilities Act; the Family and Medical
Leave Act; the Employee Retirement Income Security Act of 1974, as amended; and,
in general, any federal law or the law of the State of Colorado. Such proceeding
shall be conducted by final and binding arbitration before a panel of one or
more arbitrators under the administration of the American Arbitration
Association, and in a location mutually agreed to by the Executive and NOOF. The
Federal and State courts located in the United States of America are hereby
given jurisdiction to render judgment upon, and to enforce, each arbitration
award, and the parties hereby expressly consent and submit to the jurisdiction
of such courts. Notwithstanding the foregoing, in the event that a violation of
the Agreement would cause irreparable injury, NOOF and the Executive agree that
in addition to the other rights and remedies provided in this Agreement (and
without waiving their rights to have all other matters arbitrated as provided
above) the other party may immediately take judicial action to obtain injunctive
relief.
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11. NO CONFLICTING OBLIGATIONS OF EXECUTIVE. Executive represents and
warrants that she is not subject to any duties or restrictions under any prior
agreement with any previous employer or other person, and that she has no rights
or obligations except as previously disclosed to NOOF which may conflict with
the interests of NOOF or with the performance of the Executive's duties and
obligations under this Agreement. Executive agrees to notify NOOF immediately if
any such conflicts occur in the future.
12. INDEMNITY OF EXECUTIVE. NOOF shall indemnify and defend the
Executive against all claims relating to the performance of her duties hereunder
to the fullest extent permitted by applicable law.
13. SUCCESSORS.
(1) This Agreement is personal to the Executive and without
the prior consent of NOOF shall not be assignable by the Executive otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by the Executive's legal representatives.
(2) This Agreement shall inure to the benefit of and be
binding upon NOOF and its successors and assigns
(3) NOOF will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of NOOF to assume expressly and
agree to perform this Agreement in the same manner and to the same extent that
NOOF would be required to perform it if no such succession had taken place. As
used in this Agreement, "NOOF" shall mean NOOF as herein before defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
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14. MISCELLANEOUS.
(1) This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement contains
the full and complete understanding between the parties hereto and supersedes
all prior understandings, whether written or oral pertaining to the subject
matter hereof. This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective successors
and legal representatives.
(2) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, or by telecopier,
or by courier to such address as either party shall have furnished to the other
in writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(3) In the event of a dispute arising out of this Agreement,
any party receiving any monetary or injunctive remedy, whether at law or in
equity, which is final and not subject to appeal shall be entitled to its
reasonable attorneys' fees and costs incurred with respect to obtaining such
remedy from the other party.
(4) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(5) NOOF may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(6) The Executive's or NOOF's failure to insist upon strict
compliance with any provision hereof or any other provision of this Agreement or
the failure to assert any right the Executive or NOOF may have hereunder, shall
not be deemed to be a waiver of such provision or right or any other provision
or right of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, NOOF has caused
these presents to be executed in its name on its behalf, all as of the day and
year first above written.
COMPANY:
NEW FRONTIER MEDIA, INC.
By /s/ Mark Kreloff
------------------------------
EXECUTIVE:
/s/ Karyn Miller
------------------------------
Karyn Miller
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