Employment Agreement - New Frontier Media Inc. and Thomas Nyiri
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EMPLOYMENT AGREEMENT
BETWEEN
THOMAS NYIRI
AND
NEW FRONTIER MEDIA, INC.
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December 22, 1998
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TABLE OF CONTENTS
Page
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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........................................ 4
(a) Death or Disability.......................................... 4
(b) Cause........................................................ 4
(c) Good Reason.................................................. 4
(d) Termination for Other Reasons................................ 5
(e) Notice of Termination........................................ 5
(f) Date of Termination.......................................... 5
4. Obligations of NFM 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............................ 7
(e) Disability................................................... 7
(f) Nondisclosure to Media....................................... 7
5. Change in Control...................................................... 7
(a) Defined...................................................... 7
(b) Accelerating Event........................................... 8
6. Nonexclusivity of Executive's Rights................................... 8
7. Confidential Information............................................... 8
8. Non-Compete; Non-Solicitation.......................................... 9
9. Remedies for Executive's Breach........................................ 9
10. Dispute Resolution.................................................... 10
11. No Conflicting Obligations of Executive............................... 10
12. Indemnity of Executive................................................ 10
13. Successors............................................................ 10
14. Miscellaneous......................................................... 11
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of
December 22, 1998 between THOMAS NYIRI, an individual (the "Executive"), and NEW
FRONTIER MEDIA, INC. ("NFM"), a Colorado corporation, recites and provides as
follows:
WHEREAS, the Board of Directors of NFM (the "Board") desires
that NFM retain the services of the Executive, and the Executive desires to
remain employed with NFM, 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, NFM and the Executive agree as follows:
1. EMPLOYMENT PERIOD. NFM hereby agrees to employ the
Executive, and the Executive hereby agrees to accept employment by NFM, 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 December 31, 2000 (the "Employment Period").
2. TERMS OF EMPLOYMENT.
(A) POSITION AND DUTIES.
(i) During the Employment Period, the
Executive shall serve as Director of Technology of Colorado Satellite
Broadcasting, Inc., a subsidiary of NFM and shall have such authority and
perform such executive duties as are commensurate with that position. Any
reference to NFM in this Agreement shall include Colorado Satellite
Broadcasting, Inc. The Executive's services shall be performed at NFM's
headquarters in Boulder, Colorado.
(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 NFM 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 NFM 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 semi-monthly basis, at the annual rate
of not less than One Hundred Thousand Dollars ($100,000) per year for calendar
year 1999, and One Hundred Ten Thousand Dollars
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($110,000) for calendar year 2000. During the Employment Period, the Annual Base
Salary shall be reviewed at least annually by the Compensation Committee. 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 for NFM
as set out below.
Bonus Percentage
EBITDA of Annual Base Salary
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At least $1,000,000 10%
The bonus payable pursuant to this Section 2(b)(ii) for any fiscal year shall be
paid to the Executive no later than the 30th day following the issuance of the
audited financial statements of NFM for such year.
(iii) Long-Term Incentives: Stock Options.
The Executive shall receive a grant of nonstatutory stock options on Fifty
Thousand (50,000) shares of NFM common stock. The options shall have a term of
ten (10) years (subject to earlier expiration as hereinafter provided), shall
have an exercise price equal to 100% of the fair market value, as of the close
of trading on the date of this Agreement, of the shares of common stock subject
to such stock options, and shall vest and become exercisable in [three] ([3])
equal annual installments on the first through the third anniversaries of the
Effective Date; provided, however, that such stock options shall vest
immediately and become exercisable in their entirety in the event that an
Accelerating Event (as hereinafter defined in Section 4(a)) occurs. To the
extent not previously exercised, all such stock options shall expire 90 days
following the Date of Termination (as hereinafter defined in Section 3(f));
provided, however, that the Executive, or his heirs or legal representatives in
the event of the Executive's death, may exercise all or any part of such stock
options as were exercisable as of the close of business on the Date of
Termination for a period of two (2) years following such Date of Termination in
the event an Accelerating Event (as hereinafter defined in Section 4(a)) occurs.
Such stock options shall include a provision for adjustment in the option price
to reflect any extraordinary distribution made with respect to the common stock
during the term of the options. In the event of a capital adjustment resulting
from a stock dividend, stock split, reorganization, merger, consolidation,
spinoff, a combination or exchange of shares or other transaction having a
similar substantive effect, the number shares of stock subject to the stock
options and the option price shall be equitably adjusted. Such stock options
shall be evidenced by a written stock option award agreement between NFM and the
Executive, the terms of which shall be agreed to by the parties in good faith as
soon as practical.
(vi) Long-Term Incentives: Other. During
the Employment Period, the Executive shall be entitled to participate in
long-term incentive plans and programs
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applicable generally to other peer executives of NFM. Such participation shall
commence with respect to NFM's 1999 fiscal year.
(vii) 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 executive of NFM.
(viii) 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 NFM (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 NFM.
(ix) 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 NFM as in effect generally
from time to time after the Effective Date with respect to other peer executives
of NFM .
(x) Fringe Benefits. During the
Employment Period, the Executive and/or the Executive's family and dependents
shall be entitled to fringe benefits in accordance with the most favorable
plans, practices, programs and policies of NFM as in effect generally from time
to time after the Effective Date with respect to other peer executives of NFM.
(xi) Office and Support Staff. During the
Employment Period, the Executive shall be entitled to retain the same office as
he currently uses with the same furnishings and other appointments, and to
exclusive personal 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 NFM .
(xii) 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 NFM as in effect
generally from time to time after the Effective Date with respect to other peer
executives of NFM, provided that the vacation will not be not less than three
(3) weeks per year. (xiii) Car Allowance. During the Employment Period, the
Executive shall be entitled to a car allowance of at least $650 per month, in
accordance with NFM's car allowance policy, in lieu of expenses associated with
the operation of his automobile.
(xiv) Employment Conditions. NFM shall
take all possible efforts to maintain the general working conditions for the
Executive at NFM as in existence prior to the date of this Agreement. The
general working conditions include the ability of Executive to
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establish his own working hours, the current style of dress for employees, and
other similar life style matters.
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 NFM 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 NFM 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 NFM 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 NFM 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. NFM 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; or (ii) a
material act of dishonesty or breach of trust on the part of the Executive
resulting or intending to result directly or indirectly in material personal
gain or enrichment at the expense of NFM.
(C) GOOD REASON. The Executive may terminate his
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 NFM 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 NFM
promptly after receipt of notice thereof given by the Executive; or
(ii) any failure by NFM 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. NFM may
terminate the employment of the Executive without Cause by giving notice to the
Executive at least sixty (60)
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days prior to the Date of Termination. The Executive may resign from his
employment without Good Reason hereunder by giving notice to NFM 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 NFM to set forth in the Notice of Termination any fact or circumstance shall
not waive any right of the Executive or NFM hereunder or preclude the Executive
or NFM from asserting such fact or circumstance in enforcing the Executive's or
NFM's rights hereunder.
(F) DATE OF TERMINATION. "Date of Termination"
shall mean (i) if the Executive's employment is terminated by NFM 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 NFM 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 may
be, 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 NFM 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, NFM shall terminate the
Executive's employment other than for Cause, death or Disability or the
Executive shall terminate employment for Good Reason:
(i) NFM 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
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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) NFM 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
(iii) If an Accelerating Event involving
the Executive's termination occurs within twelve (12) months following the date
of this Agreement, NFM shall pay to the Executive an additional One Hundred
Thousand Dollars ($25,000).
(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, NFM 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)(viii) if the
Executive's employment had not been terminated, in accordance with the most
favorable plans, practices, programs or policies of NFM as in effect generally
at any time thereafter with respect to other peer executives of NFM 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
his 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
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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 NFM and their
families.
(F) NONDISCLOSURE TO MEDIA. After the Date of
Termination or the end of Employment Period, the Executive and NFM 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.
5. CHANGE IN CONTROL.
(A) DEFINED. For purposes of this Agreement, a
"Change in Control" of NFM 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")), other than [the new majority owner] or any majority-owned
subsidiary of [the new majority owner] 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 NFM'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 NFM 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
NFM); or
(iii) NFM 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 NFM prior to the merger , or NFM adopts, and
the stockholders approve, if necessary, a plan of complete liquidation of NFM,
or NFM 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).
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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 NFM 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 NFM. 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 NFM 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.
7. CONFIDENTIAL INFORMATION.
(a) The Executive shall hold in a fiduciary capacity
for the benefit of NFM all secret or confidential information, knowledge or data
relating to NFM or any of its affiliated companies, and their respective
businesses, which shall have been obtained by the Executive during the
Executive's employment by NFM 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 NFM, the Executive shall not,
without the prior written consent of NFM 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 NFM 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.
(b) 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 NFM, which
Executive shall use or prepare or otherwise have in his possession in the course
of, or as a result of, his employment hereunder shall, as between the parties
hereto, remain the sole property of NFM. Executive shall use such materials
solely for the benefit of NFM and shall not divulge any such materials other
than in furtherance of NFM's interests. Executive hereby agrees that he will
return all such materials, including copies, to NFM upon demand, or upon the
cessation of his employment.
(c) 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.
(a) 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 NFM (the "Non-Competition
Period"), the Executive shall not, directly or indirectly, either for himself or
any other person, own, manage, control, materially participate in, invest in,
permit his 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
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NFM's business at the date the Executive ceases to be employed by NFM
(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 NFM 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 NFM
other than for Cause, or (iii) if the Executive resigns for Good Reason provided
that the Executive gives written notice to NFM whenever during the
Non-Competition Period that he 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 he has no active participation in the business of
such enterprise.
(b) 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 NFM to leave the employ of NFM, or in any way
interfere with the relationship between NFM and an employee of NFM except in the
proper exercise of the Executive's authority, or (ii) in any way interfere with
the relationship between NFM and any customer, supplier, licensee or other
business relation of NFM.
(c) 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.
(d) 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 NFM 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 NFM may thereafter terminate the payment of any
post-termination benefits hereunder, and NFM 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 NFM. Therefore, NFM
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 NFM has in any way violated the non-discrimination and/or other
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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 NFM. 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, NFM 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.
11. NO CONFLICTING OBLIGATIONS OF EXECUTIVE. Executive
represents and warrants that he is not subject to any duties or restrictions
under any prior agreement with any previous employer or other person, and that
he has no rights or obligations except as previously disclosed to NFM which may
conflict with the interests of NFM or with the performance of the Executive's
duties and obligations under this Agreement. Executive agrees to notify NFM
immediately if any such conflicts occur in the future.
12 INDEMNITY OF EXECUTIVE. NFM shall indemnify and
defend the Executive against all claims relating to the performance of his
duties hereunder to the fullest extent permitted by NFM's Articles of
Incorporation and Bylaws, the relevant provisions of which shall not be amended
in their application to the Executive to be any less favorable to him than as at
present, except as required by law.
13 SUCCESSORS.
(a) This Agreement is personal to the Executive and
without the prior consent of NFM 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.
(b) This Agreement shall inure to the benefit of and
be binding upon NFM and its successors and assigns.
(c) NFM 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 NFM to assume expressly and
agree to perform this Agreement in the same manner and to the same extent that
NFM would be required to perform it if no such succession had taken place. As
used in this Agreement, "NFM" shall mean NFM as hereinbefore 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.
(a) 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 may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) 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.
(c) 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.
(d) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(e) NFM 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.
(f) The Executive's or NFM'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 NFM 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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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, NFM 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
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President
EXECUTIVE:
/s/ Thomas Nyiri
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Thomas Nyiri