Exhibit 10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (“
Agreement ”) is made as of this 20th day of January,
2009, by and between GAME LINK LLC., a limited liability company
(the “ Company ”), and ILAN BUNIMOVITZ (“
Employee ”).
Recitals
A. Concurrently with the execution
and delivery of this Agreement, pursuant to an Agreement and Plan
of Reorganization dated as of January 20, 2009 (the “
Merger Agreement ”), by and among Private Media Group,
Inc. (“ Private ”), the Company, eLine LLC
(“ eLine ”), and certain affiliates of the
Company and eLine, including Employee, Private will become the
indirect owner of Game Link and eLine.
B. The execution and delivery of
this Agreement is a condition to the consummation of the
transactions contemplated by the Merger Agreement. The Company
desires to employ Employee, and Employee wishes to accept such
employment, upon the terms and conditions set forth in this
Agreement.
C. All capitalized terms which are
not defined herein shall have the respective meanings ascribed to
such terms in the Merger Agreement.
NOW, THEREFORE, in consideration of
the foregoing, and the mutual covenants contained herein, the
parties hereto, intending to be legally bound, agree as
follows:
1. Employment and Duties
.
1.1. Employment; Duties
. During the
“Term” (as such quoted term is defined in
Section 3 of this Agreement), the Company shall employ
Employee, and Employee hereby accepts such employment, as the
Executive Vice President of the consolidated Internet and
Internet-related business conducted by Private and its subsidiaries
(the “ Private Group ”) (the Internet and
Internet-related business conducted by the Private Group from time
to time, including the business of the Company and e-Line, is
referred to as the “ Online Media Business ”),
and shall report to the Chief Operating Officer of the Private
Group. Employee shall have such titles, responsibilities and
duties, consistent with his position and expertise, as may from
time to time be prescribed by the Company and the Private Group,
including without limitation those set forth in
Exhibit “A” to this Agreement.
1.2 Full Time .
Employee shall devote all of his
business time, energy, and skill to the business and affairs of the
Private Group’s Online Media Business. Employee acknowledges
and agrees that he shall observe and comply with all of the
reasonable policies as prescribed from time to time by the Private
Group. Nothing in this Section 1, however, shall prohibit
Employee from (i) serving as a director, trustee, officer of,
or partner or investor in, any other firm, trust, corporation or
partnership; provided that such activities are not
inconsistent with Employee’s duties under this Agreement; or
(ii) engaging in additional activities in connection with
personal investments and community affairs that are not
inconsistent with Employee’s duties under this
Agreement.
2. Compensation
.
2.1. Base Salary
. In consideration of the
services rendered to the Company (and/or its Affiliates) by
Employee, during the Term Employee shall receive an annual salary
(“ Base Salary ”), payable bi-weekly or
semi-monthly in accordance with the Private Group’s standard
payroll practices, as follows:
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First 12 month period:
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$
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281,828
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Second 12 month period:
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$
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271,070
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Third 12 month period:
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$
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302,648
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2.2 . Benefits. During the Term,
Employee shall be entitled to participate in employee benefit plans
(such as health, dental, vision, pension, retirement and similar
plans) and receive fringe benefits that are substantially similar
to those provided to other key executives of the Private Group and
as are generally now or hereafter available to employees and/or
other senior executives of the Private Group in accordance with
their then existing terms and conditions. Additionally, during the
Term, the Company shall reimburse Employee for all reasonable
expenses incurred in connection with Employee’s use of an
automobile, not to exceed $1,500 per month, including lease
payments, insurance, gasoline, maintenance and parking and
otherwise subject to the presentation of appropriate
documentation.
2.3 . Vacation . During the Term,
Employee shall be entitled to a total of 20 vacation days or paid
time off per year, exclusive of holidays observed by the Private
Group, in accordance with the vacation policies of the Private
Group in effect for their U.S. employees from time to time, which
shall be scheduled in a reasonable manner by Employee. Vacation
days which are not used during any calendar year may be accrued or
paid in accordance with Company policy.
2.4 . Expenses . During the Term,
Employee will be entitled to reimbursement of all reasonable
expenses incurred in the ordinary course of business on behalf of
the Company, including its Affiliates, subject to the presentation
of appropriate documentation and approved in accordance with the
then existing terms and conditions of the Private Group’s
policies.
2.5 . Withholding . The Company may
withhold from compensation payable to Employee all applicable
federal, state and local withholding taxes.
2.6. Employee Stock Options
and Grants . During
the Term of this Agreement if Berth Milton shall receive a grant of
stock options from Private, Employee shall be entitled to receive
at such time a grant of a “Proportionate Amount” amount
of stock options with the same exercise price and exercise period,
and with vesting provisions as determined by Private’s Option
Committee, not to exceed three years from the date of grant. For
purposes of this Agreement “ Proportionate Amount
” means, at the time of grant, the amount based upon the
ratio of the percentage ownership of Private Common Stock owned
directly or indirectly by Berth Milton in proportion to the
percentage ownership of Private Common Stock owned by Employee.
Stock options granted to Employee under this Section 2.6 shall
provide for the full and immediate vesting thereof if (i) the
Company shall terminate Employee’s employment, unless
terminated for Cause or by reason of Employee’s Death or
Disability, or (ii) or Employee shall terminate his employment
with the Company for Good Reason.
3. Term .
The term of employment under this
Agreement shall be a period commencing on the date hereof and
ending on the third anniversary of the date hereof (the “
Expiration Date ”), unless terminated earlier in
accordance with the other provisions hereof (the “ Initial
Term ”). Absent a written notice from the Company or
Employee to the contrary, this Agreement shall automatically extend
in one month increments following the Initial Term (each such
extension period shall be referred to herein as a “
Renewal Term ”). This Agreement shall terminate
automatically 30 days after written notice by the Company or
Employee delivered after the Initial Term, without any severance
pay, termination pay or any severance obligation whatsoever. The
Initial Term and Renewal Term(s) are collectively referred to
herein as the “ Term .”
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4. Termination
.
4.1.
Definitions . As
used herein, the following terms shall have the following
meanings:
4.1.1. “Notice of
Termination ” means a written notice specifying the
termination provision in this Agreement relied upon.
4.1.2. “ Date of
Termination ” means (i) where termination is due to
the death of the Employee, the date of death, or (ii) the
earlier of the date specified in the Notice of Termination or the
last day Employee is employed by the Company, as the case may
be.
4.1.3. “ Cause ”
means that Employee has (i) breached any fiduciary duty or
material legal or contractual obligation to the Company (including
any Affiliate), which breach is not cured within thirty
(30) days after notice to the Employee thereof or, if cured,
such conduct recurs (it being agreed that such cure right for any
particular conduct shall only be available once during the Initial
Term and each Renewal Term), (ii) failed to perform
satisfactorily Employee’s material job duties or to follow
any material reasonable directive of the Chief Operating Officer of
the Private Group or the Board of Directors of Private, which
failure is not cured within thirty (30) days after notice to
Employee thereof or, if cured, such conduct recurs (it being agreed
that such cure right for any particular conduct shall only be
available once during the Initial Term and each Renewal Term),
(iii) engaged in gross negligence, gross insubordination,
willful misconduct, fraud, embezzlement, acts of material
dishonesty or a conflict of interest (without the prior, informed
written consent of Private), in any such case relating to the
affairs of the Company or any of its Affiliates, or (iv) been
convicted of or pleaded no contest to (A) any misdemeanor
relating to the affairs of the Company or any of its Affiliates or
(B) any felony, unless in either case (1) the felony or
misdemeanor involved actions or omissions of Employee in the
ordinary course of the Private Group’s business, and
(2) Employee was acting in good faith and what he reasonably
believed to be the best interests of the Private Group.
4.1.4. “ Good Reason
” means Employee’s voluntary termination within thirty
(30) days following the occurrence of one or more of the
following: (i) a material diminution Employee’s
authority, duties, reporting structure or responsibilities that is
not remedied by the Company within 30 days after receipt of notice
thereof given by Employee, or (ii) a material breach of this
Agreement by the Company, which breach is not cured within thirty
(30) days after notice thereof given by Employee, or
(iii) a change by the Company in the geographical location at
which Employee must provide the services described in this
Agreement by more than twenty-five (25) miles from his current
location in San Francisco, California, excluding reasonable
travel.
4.1.5. “ Disability
” means illness (mental or physical) or accident, which
results in Employee being unable to perform Employee’s duties
as an employee of the Company on a full time basis, for a period of
sixty (60) consecutive days, or one hundred twenty
(120) days, whether or not consecutive, in any twelve month
period. In the event of a dispute as to whether Employee
is