EXECUTIVE EMPLOYMENT
AGREEMENT
This EXECUTIVE
EMPLOYMENT AGREEMENT is effective as of February 12, 2004 (the
“Commencement Date”), by and between NGTV , a
California corporation (“Company”), and ALLAN
BROWN , an individual (“Executive”). In
consideration of the mutual covenants, terms and conditions
hereinafter contained, and for other good and valuable
consideration, the parties hereby agree as follows:
1.
Term of Employment. Company hereby employs Executive
and Executive hereby accepts such employment for the period
commencing on the Commencement Date and continuing in full force
and effect for a period of two (2) years (the
“Term”).
2.
Duties. Executive shall perform the duties and
obligations of Co-Chief Executive Officer of the Company and
diligently perform such duties on behalf of the Company as the
Company’s Board of Directors may from time to time reasonably
agree upon with Executive. Executive shall be provided with a
secretary and shall devote such time as is reasonably necessary to
these duties, but need not devote all of his business time and
efforts to the rendition of such services. Executive shall not be
required to devote any specific minimum amount of time or report or
perform his duties hereunder on a fixed or periodic basis. Subject
to Sections 7, 8 and 9 of this Agreement, Executive may engage
or participate in such other activities as part of, and related to
other employment, occupations or business ventures or enterprises
as do not materially interfere or conflict with his ability to
perform his duties under this Agreement. Executive shall, at all
times during the Employment Term, in all material respects adhere
to and obey any and all written internal rules and regulations
governing the conduct of Company’s employees, as established
or modified from time to time; provided, however, in the event of
any conflict between the provisions of this Agreement and any such
rules or regulations, the provisions of this Agreement shall
control.
3.
Definitions. Unless the context otherwise requires,
references to the business of the “Company” shall
include any future subsidiaries or affiliates of the Company.
“Programs” mean uncensored music related, entertainment
based reality television programming and audio/visual recordings
and other audio/visual or written materials owned or duly licensed
by the Company and forming a material part of such programming, by
means of broadcast television, cable television, pay per view,
satellite broadcast and similar technology whether or not now in
existence.
a.
Base Salary. In consideration for Executive’s
services hereunder, Company shall pay Executive a monthly base
salary of Twenty Thousand Dollars ($20,000) during the Term (the
“Base Salary”). Payment shall be made in accordance
with Company’s regular payroll schedule from time to time
(less any deductions required for Social Security, state, federal
and local withholding taxes, and any other authorized or mandated
withholdings).
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b.
Additional Compensation. In addition to the payment
referred to above, the Company shall grant Executive, in
consideration for Executive’s Services herein and all past
Services, if any, rendered by Executive to Company prior to the
Commencement Date, the right to purchase 2,280,607 shares of the
Company’s common stock at a price per share of $.001 (the
“Option”). The Option (and the shares of stock received
upon exercise of the Option will vest 570,157 shares six
(6) months from the Commencement Date and 95,025 shares on the
first day of each succeeding calendar month thereafter for the
subsequent eighteen (18) months during the Term, unless
earlier terminated. The Option shall be exercisable in whole or in
part at any time during its Term and may be exercised multiple
times until all shares covered by the Option have been issued to
Executive. The Option shall expire five (5) years from the
Commencement Date.
c.
Participation in Benefits Plans. Executive shall be
entitled to participate in all executive welfare and health benefit
plans and other employee benefit plans, including without
limitation, pension plans, established by Company from time to time
for the benefit of all executives of Company. Executive shall be
required to comply with the conditions attendant to coverage by
such plans and shall comply with and be entitled to benefits only
in accordance with the terms and conditions of such plans as they
may be amended from time to time. Nothing herein contained shall be
construed as requiring Company to establish or continue any
particular benefit plan in discharge of its obligations under this
Agreement.
d.
Reimbursement for Expenses. Company shall reimburse
Executive for reasonable and necessary business and entertainment
expenses incurred by him in connection with the performance of his
duties hereunder including, without limitation, expenses for
business development, business or first class travel, meals and
first class accommodations and related expenditures in accordance
with Company policies as amended from time to time. Executive shall
submit to Company periodic statements of all expenses so incurred.
Subject to such audits as Company may deem necessary, Company shall
reimburse Executive the full amount of any such expenses advanced
by him in the ordinary course of business. Any and all frequent
flyer miles accrued by Executive for travel in connection with
Executive’s employment with Company shall be used at the sole
discretion of Executive.
5.
Termination of Employment.
a.
Termination for Cause. Company may terminate
Executive’s employment upon the occurrence of any one or more
of the following events, which events shall be deemed termination
for cause:
(i)
Willful Breach. If Executive (X) willfully
commits a material breach of this Agreement or (Y) a material
breach of any fiduciary duties owed to Company, which is not cured
to the reasonable satisfaction of a majority of the Board
of
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Directors
(excluding Executive if he is then a member of the Board) within
thirty (30) days of written notice to Executive.
(ii)
Wrongful Acts. If Executive is (X) convicted of
a felony or any other serious crime, (Y) commits fraud, or
(Z) is guilty of gross negligence in the operation of
Company.
(iii)
Disability. If Executive is physically or mentally
disabled from the performance of a material portion of his duties
for a continuous period of ninety (90) days or greater,
provided, however, that if Executives disability is the result of a
serious health condition as defined by the federal Family and
Medical Leave Act (or its California equivalent).
(“FMLA”), Executive’s employment shall not be
terminated during any period of FMLA qualifying leave except as
permitted by the FMLA. If there should be a dispute between Company
and Executive as to Executive’s physical or mental disability
for purposes of this Agreement, the question shall be settled by
the opinion of an impartial reputable physician or psychiatrist
agreed upon by the parties or their representatives, or if the
parties cannot agree within ten (10) days after a request for
designation of such party, then a physician or psychiatrist
designated by the Los Angeles County Medical Association. The
certification of such physician or psychiatrist as to the
questioned dispute shall be final and binding upon the
parties.
b.
Termination Without Cause. Company may terminate
Executive’s employment under this Agreement at any time
without cause on thirty (30) days prior written notice upon
the vote or written consent of 2/3rds of the vote of the members of
the Board of Directors, excluding Executive if he is then a member
of the Board.
c.
Effectiveness on Notice. Any termination under this
Section 5 shall be effective upon receipt of notice by
Executive of such termination or upon such other later date as may
be specified by Company in the notice (“Termination
Date”),
d.
Termination by Executive Without Good Reason.
Executive may terminate this Agreement upon thirty (30) days
advance written notice to the Company.
e.
Termination by Executive for Good Reason. Executive
may terminate this Agreement at any time upon written notice to
Company for “Good Reason” and shall include in the
notice of termination the grounds substantiating the termination
for Good Reason. For purposes of this Agreement, “Good
Reason” shall mean a material breach by the Company of this
Agreement or the material representations and warranties forming
part of the Common Stock Purchase Agreement between the Company and
Executive.
f.
Effect of Termination. Payment of Base Salary
and Expense upon Termination . If the Term is
terminated by the Company for cause or by Executive without good
reason, all benefits provided to Executive by Company hereunder
shall thereupon cease and Company shall pay or cause to be paid to
Executive all accrued but unpaid compensation. In addition, Company
will promptly
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reimburse
Executive all unpaid expenses incurred prior to the Termination
Date. In the event the Term is terminated by the Company without
cause or by Executive for good reason, in addition to the immediate
vesting in full of any unvested Options provided below, Executive
shall be paid the full monthly Base Salary payment for the
remainder of the original Term of this Agreement plus any
extensions that have been agreed to in writing provided that the
Executive elects to have the noncompete and noninterference
restrictions provided in Sections 7 and 9 below run for one
(1) year rather than six (6) months from the date of the
termination of this Agreement.
g.
Effect of Termination Vesting of Unvested Options. In
the event of a termination of Executive’s employment by the
Company for cause or by Executive without Good Reason, any unvested
Options shall expire immediately. In the event of a termination of
Executive’s employment by the Company without Cause or by
Executive for Good Reason, any unvested Options (and the Shares
covered by such Options) shall immediately vest in full.
6.
Confidential Information. Executive hereby
acknowledges that, based on Executive’s past or current
relationship with the Company, Executive has had access to and
become acquainted with the Confidential Information (as defined
below). Executive hereby covenants and agrees that he shall not, in
any fashion, form or manner, unless previously and specifically
consented to in writing by the Company, either directly or
indirectly use, divulge, transmit or otherwise disclose or cause to
be used, divulged, transmitted or otherwise disclosed to any
person, firm, partnership, corporation or other entity now existing
or hereafter created, in any manner whatsoever (other than as
required by law), any Confidential Information of any kind, nature
or description. Executive hereby further acknowledges and agrees
that the sale or unauthorized use, transmission or other disclosure
of any of the Confidential Information which is in his possession
constitutes unfair competition and Executive covenants and agrees
that he shall not engage in any unfair competition with the Company
(collectively, the “Confidentiality Covenants”). The
foregoing provisions shall not be construed to prevent Executive
from making use of or disclosing information that (1) is or
becomes, at the time of disclosure, in the public domain;
(2) is known to Executive prior to being disclosed by Company
to Executive; (3) Executive learns from sources other than the
Company from a person or entity under no duty known to Executive to
keep such information confidential; and (4) is required by law
to be disclosed. The foregoing provisions shall also not be
construed as preventing Executive from reasonable and bona
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