Exhibit 10.2
EMPLOYMENT AGREEMENT
AGREEMENT (the
"Employment Agreement"
or this "Agreement") dated as of the
______ day of November, 2005, between
MediaMax Technology Corporation, a Nevada
corporation (the "Company"), and Kevin
Clement ("Executive").
The Company and
Executive hereby agree as follows:
1. Employment.
The Company hereby agrees to employ Executive, effective as
of November 21, 2005 (the "Effective Date"), and Executive hereby accepts
employment effective on the Effective Date upon the terms and conditions
hereinafter set forth. (As used throughout
this Agreement,
"Company" shall mean
and include the Company and any and all of
its present and future subsidiaries.)
Executive warrants that Executive is free to enter into
and fully perform this
Agreement and is not subject to any
employment, confidentiality, non-competition
or other agreement which would restrict Executive's performance under this
Agreement.
2. Duties.
Executive shall devote
Executive's full time to the performance
of services as the President and Chief Executive Officer of the Company,
responsible for the overall strategy and operations of the Company,
and as a
member of the Board of Directors of the
Company. Executive's
services shall be
completely exclusive to the Company and Executive shall devote Executive's
entire time, attention and energies to the business of the Company and
the
duties to which the Company shall assign
him from time to time. Executive agrees
to perform Executive's services well and faithfully and to the best of
Executive's ability and to carry out the
policies and directives of the Company.
Executive agrees to take no action
prejudicial to the
interests of the Company
during Executive's employment hereunder. Executive shall be based in
offices
located in New York City, but shall work
from the Company's
offices in Phoenix,
Arizona as reasonably necessary to manage the business
and operations
of the
Company. Executive may further be required
from time to time to perform duties
hereunder for reasonably short periods of time outside or
either New York City
or Phoenix, Arizona.
3. Term.
Executive's
employment with the
Company shall commence as of the
Effective Date and shall continue for until December 31, 2008 (the "Term"),
unless earlier terminated in accordance
with the provisions of this Agreement.
4. Compensation.
(a) For all
Executive's services and covenants under this
Agreement, the Company shall pay Executive
a base salary equal to (i) during the
period from the Effective Date through
December 31, 2007 $250,000 per annum, and
(ii) during the period from January 1, 2008
through December 31, 2008, $300,000
per annum, in each case payable in
accordance with the Company's payroll policy
as in effect from time to time ("Base
Salary").
(b) In addition
to the Base Salary
contemplated
above, Executive shall
receive (i) a starting bonus equal to $20,000, payable on the later of the
Effective Date or the first day on which Executive commences work for the
Company and (ii) a special bonus equal to $35,000,
payable upon execution of
defintive documents with Apple Computer Company or its affiliates ("Apple")
regarding a strategic relationship between the Company and Apple and the
introduction into the market of CDs
including the Company's copyright protection
software that is compatible for Apple's
iPods. Between the date hereof and
the
effective date of the pending Merger
Agreemetn between the
Company and SunnComm
International, Inc (the "Merger Effective Date"),
the Board of Directors of the
Company shall establish an executive
bonus plan for Company
employees,
based
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4. Compensation - continued
upon review by the Board of Directors of
bonus compensation plans for comparable
companies comparable to the Company (the
"Management
Bonus Pool").
Executive
shall participate in the Management Bonus Pool on terms, and subject to the
conditions, established from time to time
by the Board of Directors.
(c) Concurrently with the execution of this Agreement, the Board of
Directors of the Company shall grant to
Executive the
following stock options
(collectively, the "Options"):
(i) An option to purchase 8,900,000 shares of Common Stock,
$.001 par
value per share
("Common Stock"), of the Company at an exercise price equal
to $.0425
per;
(ii) An option to
purchase 8,900,000 shares of Common Stock at an
exercise price
equal to $.055 per; and
(iii) An option to
purchase 8.900,000
shares of Common
Stock at an
exercise price
equal to $.07 per share.
One-third of each such Option shall vest on the first anniversary of the
Effective Time, with the balance of each such
Option vesting monthly
over the
following two years. The Option shall be exercisable for a period of 10 years
from the date of grant, but shall not be
exercisable more than 90 days after the
date on which Executive ceases to be an
employee of the Company.;
(d) On or
promptly following
January 1, 2006,
the Company shall
issue to
Executive 4,450,000 shares of the Common
Stock for a purchase price of $.001 per
share (or $4,450.00 in the aggregate). Executive acknowledges that the fair
market value of the Shares may exceed the purchase price therefore and has
consulted his tax advisors with respect to the Federal and state
income tax
consequences of such stock issuance.
5. Expenses. Executive shall be entitled to reimbursement for expenses
reasonably incurred in connection
with the performance of Executive's
duties
hereunder in accordance with such procedures as the Company may
establish from
time to time. The Company shall also pay a
housing allowance of up to $2,500 per
month to reimburse Executive for the actual cost of housing
arrangements
for
Executive in Phoenix, Arizona through December 31, 2006.
Such housing allowance
shall be paid in arrears against
presentation of
invoices or other eveidence of
such expenses.
6. Vacation.
During Employment.
Executive shall be entitled to up to three
weeks of vacation for the first 12 months of the
Term and thereafter
shall be
entitled to up to four weeks of
vacation per year for the balance of the
Term.
Unused vacation shall not roll-over into
successive years.
7. Additional
Benefits. During Executive's employment and subject to any
contribution therefor generally required of
employees of the Company, Executive
shall be entitled to participate in any and
all employee benefit plans from time
to time in effect for employees of the
Company generally, but
the Company shall
not be required to establish any such
program or plan. Such participation shall
be subject to (i) the terms of the
applicable
plan documents, (ii) generally
applicable Company policies and (iii) the discretion
of the Board of Directors
or any administrative or other committee
provided for in or contemplated by such
plan. The Company may alter, modify, add to
or delete its employee benefit plans
at any time as it, in its sole judgment,
determines to be
appropriate,
without
recourse by the Executive.
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8. Termination
of Employment.
8.1 Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death. The Company shall be entitled to
terminate the Executive's employment because of the Executive's Disability
during the Term. "Disability" means that the Executive has been unable, for
either (i) the period specified in the Company's disability plan for senior
executives (if any) or (ii) a period of 90
days out of any 120-day period, to
perform the Executive's duties under this
Agreement, as a result
of physical or
mental illness or injury. A termination of the Executive's employment by the
Company for Disability shall be
communicated to the Executive by written notice,
and shall be effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), unless the Executive returns to
full-time performance of the Executive's
duties before the Disability Effective
Date.
8.2 Termination
By the Company.
8.2.1 With or
Without Cause.
The Company may
terminate the Executive's
employment for Cause or without Cause. "Cause" means the Executive's: (i)
persistent and repeated refusal, failure or neglect to perform the
material
duties of his employment under this Agreement (other by reason of the
Executive's physical or mental illness or
impairment), provided
that such Cause
shall be deemed to occur only after the Company gave notice thereof to the
Executive specifying in reasonable detail
the conduct
constituting Cause,
and
the Executive failed to cure and correct his
conduct within
thirty (30) days
after such notice; (ii) committing any act of fraud
or embezzlement,
provided
that such Cause shall be deemed to occur only
after the Company
gave notice
thereof to the Executive specifying in reasonable
detail the instances
of such
conduct, and the Executive had the
opportunity to be
heard at a meeting of the
Board; (iii) breach of any employee non-disclosure, non-competition or
assignment of inventions agreement entered into during the
Term that results in
a material detriment to the Company;
(iv) conviction of a felony (including
pleading guilty to a felony) or
commitment
of other acts causing
or likely to
cause a material detriment to the reputation of the Company; or (v) habitual
abuse of alcohol or drugs.
8.2.2
Termination Procedure.
A termination of the
Executive's
employment
for Cause shall not be effective
unless it is
accomplished
in accordance with
the following procedures. The Company shall give the
Executive written
notice
("Notice of Termination for Cause") of its intention to terminate the
Executive's employment for Cause, setting forth in reasonable detail the
specific conduct of the Executive that it
considers to constitute Cause and the
specific provisions of this Agreement on
which it relies, and stating the date,
time and place of the Special Board Meeting for Cause. The "Special Board
Meeting for Cause" means a meeting of the
Board called and held specifically for
the purpose of considering the Executive's termination for Cause, that takes
place not less than two nor more than
thirty business
days after the
Executive
is given the Notice of Termination
for Cause.
The Executive
shall be given an
opportunity to be heard at the Special
Board Meeting for Cause. The Executive's
termination for Cause shall be effective when and if a resolution is duly
adopted at the Special Board Meeting for
Cause by affirmative vote of a majority
of the entire membership of the Board
stating that, in the good faith opinion of
the Board, the Executive is guilty of the conduct
described in the
Notice of
Termination for Cause and that such conduct constitutes Cause under this
Agreement.
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8.3 Good
Reason.
8.3.1 The
Executive may
terminate employment for Good Reason or without
Good Reason. "Good Reason" means:
(a) any failure
by the Company to comply with any provision of Paragraph 4
of this
Agreement, other than
an isolated,
insubstantial and
inadvertent
failure that is not taken in bad faith and is remedied by the Company
promptly after
receipt of notice thereof from the Executive;
(b) any other
material breach by the Company of this
Agreement or of
any
other agreement
between the Executive
and the Company that is not remedied
by the Company
within thirty (30) days after receipt of notice thereof from
the
Executive;
(c) any public
disparagement
of the Executive by the Company or senior
executives of
the Company;
(d) any change
in the location of the base of employment of the Executive
to a location
that is more than 25 miles from New York City, New York; or
(e) any material
diminution
in the responsibilities or authority of the
Executive within the Company following a Change of Control Event (as
defined
below), without the prior written
consent of the
Executive. For
purposes of this
Agreement, a Change of Control Event will occur upon:
(i) The acquisition
by any individual, entity or group (within the
meaning of
Sections 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934 (the
"Exchange Act")) (a "Person") of beneficial ownership (within
the
meaning of Rule
13d-3 promulgated
under the Exchange Act) of 50 percent or
more of the then
outstanding
shares of the
Company's stock (the "Stock");
or
(ii) There is
consummated
a merger or consolidation (or similar
transaction
of the Company or any direct or
indirect subsidiary of the
Company
with
any other corporation, other than (a) a merger or
consolidation
(or similar
transaction)
which would
result in the
voting
securities of
the Company outstanding immediately prior thereto
continuing
to represent
directly or indirectly
more than 50% of the
combined voting
power of the
voting securities of
the Company or such
surviving or parent
entity
outstanding
immediately after such merger or consolidation or which
would result in
those persons who are directors immediately prior to such
merger or
consolidation
constituting more than
one half of the membership
of the board of
directors or the board
of directors of such
surviving or
parent
entity immediately after, or subsequently at any time as
contemplated by
or as a result of, such merger or consolidation (or similar
transaction);
or
(iii) The stockholders
of the Company (or
other persons
having the
general
power to direct
the affairs of such entity) approve a plan of
complete
liquidation
of the Company or an agreement for the sale or
disposition
by the Company of all
or substantially
all of the
Company's
assets (or any
transaction having a similar effect).
8.3.2 For
purposes of this Section 8.3, any good faith determination of
"Good Reason" made by the Executive shall be conclusive. A termination of
employment by the Executive for Good Reason
shall be effectuated
by giving the
Company written notice ("Notice of Termination for Good Reason") of the
termination, se
