Employment Agreement
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Effective Date
December 4, 2006
Parties
ROO Group, Inc. ("RGI" or the "Company"; all RGI
related entities may be referred to in the singular or
plural as a "ROO Company") of 228 East 45th Street, 8th
Floor, New York, NY 10017; and
Lou Kerner of 42 Hawkes Close, Irvington, NY
("Employee").
Recitals
The Company and the Employee desire to enter into an
employment relationship under the terms and conditions
set forth in this Agreement; and
In consideration of the mutual covenants and agreements
herein contained and other good and valuable
consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
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1. TERM OF
EMPLOYMENT.
The Employee's term of employment starts on the Effective Date,
above, and ends
in accordance with the terms of this Agreement.
2. TITLE
AND DUTIES.
The Employee's title is Chief Financial Officer, ROO Group, Inc.
The Employee
will: (i) Faithfully, exclusively and diligently perform the job
duties that are
usual and customary for this position (including, but not limited
to, the duties
and responsibilities listed in Schedule A, attached) at a company
in the primary
business of providing online video content; (ii) Perform at all
times with the
standard of diligence and care reasonably expected of a person with
comparable
qualifications and duties; (iii) Dedicate substantially all of
Employee's time,
ability and attention to the affairs of the company; and (iv)
Perform additional
services and duties, such as travel, that the Company may from time
to time
designate that are consistent with this position.
Employee will report to the Chief Executive Officer, ROO Group,
Inc,
currently Rob Petty.
3.
COMPENSATION AND BENEFITS
(a) Base
Salary.
The
Company will pay the Employee a Base Salary of Three Thousand
Eight
Hundred Forty-Six Dollars and Fifteen Cents ($3,846.15) per week,
subject to all
applicable income tax withholdings. All payments of Base Salary
will be made in
installments according to the Company's regular payroll practice,
prorated
weekly where appropriate. The Company shall review Employee's Base
Salary not
less than once each calendar year and may offer (but is not
required) to vary
the Base Salary going forward.
(b)
Employment Benefit Plans. The Employee will be entitled to
participate
in all 401(k), pension and any other retirement plans, incentive
compensation
plans, and all group health, hospitalization, disability or other
insurance
plans, paid vacation, sick leave and other employee welfare benefit
plans in
which any employees of the Company may participate. The maximum
aggregate
liability of the Company in connection with this Agreement shall be
limited to
those benefits, payments and entitlements expressly set out in this
Agreement or
any subsequent written amendment signed by a duly authorized
representative of
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the Company. If Employee participates in any share or option plan
relating to
employment with the Company (the "Plan"), ROO Group, Inc., or any
subsidiary or
affiliated company including any corporation, trust, partnership,
joint venture
or any other entity of any description in which ROO Group, Inc. has
an ownership
interest of 30% or more ("ROO Group"), the Employee agrees to
comply with and be
bound by the rules and terms of the Plan, including, without
limitation, to the
extent the Employee wishes to exercise any rights or interests the
Employee may
have in, or in relation to, the Plan.
(c)
Expenses. The Company may pay or reimburse the Employee for all
normal
and reasonable employment-related expenses incurred by the Employee
in
connection with the Employee's responsibilities to the Company in
accordance
with the Company's expense reimbursement policy.
(d)
Training. The Company has a policy of ensuring that its
employees
receive adequate training and continuing education to carry out
their duties to
the Company. From time to time, the Company may agree or suggest
that the
Employee attend a third party training, course, seminar or
conference at Company
expense.
(e) Paid
Leave / Sick Leave. Employee shall receive: (i) Three (3) weeks
Paid Leave per calendar year which must be taken prior to December
31st of each
year or it is forfeited; (ii) one paid day off for the approved
Company Holidays
as per Schedule C; and (iii) Five (5) days paid Sick Leave per year
which must
be taken prior to December 31st of each year or it is forfeited.
Sick Leave in
excess of three (3) consecutive days requires a written doctor's
excuse before
being paid.
(f)
Additional Compensation or Benefits. Additional compensation or
benefits, if any, are detailed in Schedule B, attached.
4.
NONDISCLOSURE OF CONFIDENTIAL INFORMATION AND IMPROVEMENTS.
Confidential Information means any information which reasonably
regarded by the
Company as confidential to it or which is expressly designated as
such,
including, without limitation, trade secrets, know-how and
information of a
commercially sensitive nature and information relating to the
business, affairs,
technology, clients, suppliers, processes, products or services of
or belonging
to the Company, which is disclosed or given to or observed, gained
or otherwise
obtained by Employee at any time during the Term of this
Agreement.
Confidential Information includes, but is not limited to:
(a) the
policies, objectives and financial performance of a ROO
Company,
such as their financial statements and accounts;
(b) the
terms on which a ROO Company engages its employees and
consultants
and the nature and state of the its relationship with each of
them;
(c) the
terms on which a ROO Company deals with its customers, clients
and
suppliers and the nature and state of its relationship with each of
them;
(d) any
precedent, pro-forma or the like type document or agreement
prepared by or for, or used by, any ROO Company and any guideline,
directive,
policy, practice or procedure circulated, published or otherwise
made known by a
ROO Company;
(e) the
development or expansion plans of any ROO Company;
(f)
information relating to the accounting, marketing plans, sales
plans,
prospects, price information, client or supplier lists, research,
management,
financing, products, inventions, designs or processes of any ROO
Company;
(g)
computer databases, computer software, data, lists,
specifications,
drawings, records, reports, statements and Improvements (as defined
below);
(h) any
other information which is or which Employee should reasonably
know is confidential, secret or commercially sensitive to any ROO
Company;
(i) the
particulars of any confidential work performed by Employee for
any
ROO Company;
(j) the
terms of this Agreement; and
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(k) any
note, calculation, conclusion, summary, copy, photocopy,
reproduction or other material derived or produced in whole or in
part from any
of the above and any record or copy of record of information
however compiled,
recorded or stored;
(l) any
information as to which there is any uncertainty as to its
status
as Confidential Information or is lawfully in the public domain,
unless Employee
is advised by the Company in writing to the contrary.
Improvements means any inventions, improvements, information,
discoveries,
models, drawings, reports, proposals, designs, writings, materials,
items,
documents, works, concepts, strategies, plans, processes, software,
programming
codes, theories, methodologies, copyrighted works and other subject
matter
("Works")(including, but not limited to, "work for hire" and any
associated or
connected copyright, industrial or intellectual property rights or
any other
rights or interests in any Works) which Employee (solely, jointly
with others or
an any other capacity) built, conceived, designed, made, invented,
created,
discovered, generated, developed, improved, produced, supplied,
composed, worked
on or otherwise provided or otherwise contributed to during, in
connection with,
arising from or relating to Employee's employment with the Company
(whether or
not during regular working hours). Improvements shall also include
and comprise
any note, calculation, conclusion, summary, copy, photocopy,
reproduction or
other material derived or produced partly or wholly from the above
and any
record or copy of record of information however compiled, recorded
or stored
that contains or incorporates any Improvement or that was brought
into existence
or created in connection with an Improvement.
Employee acknowledges that the Company owns all Improvements and
all rights,
title and interests in, to and with respect to, the Improvements.
Furthermore,
Employee has affirmative obligation to promptly and fully disclose
the existence
of Improvements to the Company. If any letter patent, design
registration,
copyright or other form of protection is granted to the Employee in
respect of
any Improvement during or after the Term, Employment will
immediately assign
same to the Company.
During the course of the Employee's employment with the Company,
the Company
will provide the Employee with access to Confidential Information.
All
Confidential Information is and shall remain the sole and exclusive
property of
the Company and the Company reserves all rights in the Confidential
Information
and no rights are granted, licensed or otherwise provided to
Employee pursuant
to this Agreement. The Company provides on an ongoing basis such
Confidential
Information as the Company deems necessary or desirable to aid the
Employee in
the performance of his duties. Employee may not make any copy or
summary of any
Confidential Information except as required to do so in the
ordinary course of
employment with the Company.
Additionally, during the course of the Employee's employment with
the Company,
the Company will provide the Employee with access to, or may be
involved with,
the IT and computer system of the Company ("IT System"). Upon
termination of
this Agreement, Employee, and any entity controlled by Employee,
agrees not to
allow any unauthorized access to or to take any action or do
anything with
respect to the IT System, including, without limitation, accessing
or seeking
access to the IT System for any purpose.
The Employee understands and acknowledges that such Confidential
Information is
confidential and proprietary, and agrees to secure and use
Employee's best
efforts not to disclose such Confidential Information to anyone
outside the
Company except to the extent that (i) the Employee deems such
disclosure or use
reasonably necessary or appropriate in connection with performing
his duties on
behalf of the Company; (ii) the Employee is required by order of a
court of
competent jurisdiction (by subpoena or similar process) to disclose
or discuss
any Confidential Information, provided that in such case, the
Employee shall
promptly inform the Company of such event, shall cooperate with the
Company in
attempting to obtain a protective order or to otherwise restrict
such
disclosure, and shall only disclose Confidential Information to the
minimum
extent necessary to comply with any such court order; or (iii) such
Confidential
Information becomes generally known to and available for use in the
industries
in which the Company does business, other than as a result of any
action or
inaction by the Employee.
Employee acknowledges that any breach of this Paragraph 4 regarding
Confidential
Information and the IT System may not be adequately compensated by
an award of
damages and such breach entitles the Company, in addition to any
other remedies
available at law or in equity, to seek an injunction to restrain
the committing
of any breach, whether momentary or continuing in nature.
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Employee consents unconditionally and irrevocably, to the fullest
extent
permitted by law, to any and all acts or omissions by the Company,
whether
occurring before or after the date of this consent, which would,
but for this
consent, infringe any of Employee's moral or similar rights in
relation to any
Improvements or Works (both existing and future) howsoever arising
connection
with this Agreement, including, without limitation, choosing to
publish or not
to publish Works, with or without attribution or editing or
otherwise modifying
Works. Nothing in this Agreement may be deemed or construed as
an
acknowledgement that any act or omission with respect to the
Improvements or
Works constitutes an infringement of Employee's moral or similar
rights.
The Employee further agrees that he will not during employment
and/or at any
time thereafter use such Confidential Information for his/her own
benefit or in
competing, directly or indirectly, with the Company. This
nondisclosure covenant
is binding on the Employee, as well as his heirs, successors, and
legal
representatives, and will survive the termination of this Agreement
for any
reason. This Paragraph 4 shall survive the termination of this
Agreement.
5.
NON-COMPETITION.
To further
preserve the rights of the Company pursuant to the
nondisclosure covenant discussed above, and for the consideration
promised by
the Company under this Agreement, during the Employee's employment
with the
Company and for a period of 12 months thereafter, the Employee will
not,
directly or indirectly, as an owner, director, principal, agent,
officer,
employee, partner, consultant, servant, or otherwise, carry on,
operate, manage,
control, or become involved in any manner with any business,
operation,
corporation, partnership, association, agency, or other person or
entity which
is in the same business as the Company in any location in which the
Company, or
any subsidiary or affiliate of the Company, operates or has plans
or has
projected to operate during the Employee's employment with the
Company,
including any area within a 50-mile radius of any such location.
The foregoing
shall not prohibit the Employee from owning up to 5.0% of the
outstanding stock
of any publicly held company.
To further preserve the rights of the Company pursuant to the
nondisclosure
covenant discussed above, and for the consideration promised by the
Company
under this Agreement, during the term of the Employee's employment
with the
Company and for a period of 12 months thereafter, the Employee will
not,
directly or indirectly, either for himself or for any other
business, operation,
corporation, partnership, association, agency, or other person or
entity, call
upon, compete for, solicit, divert, or take away, or attempt to
divert or take
away current or prospective customers, including, without
limitation, any
customer with whom the Company, or any subsidiary or affiliate of
the Company
has an existing agreement or business relationship.
The Company and the Employee agree that the restrictions contained
in this
noncompetition covenant are reasonable in scope and duration and
are necessary
to protect the Company's business interests and Confidential
Information. If any
provision of this noncompetition covenant, as applied to any party
or to any
circumstance, is adjudged by a court or arbitrator to be invalid
or
unenforceable, the same will in no way affect any other
circumstance or the
validity or enforceability of this Agreement. If any such
provision, or any part
thereof, is held to be unenforceable because of the scope,
duration, or
geographic area covered thereby, the parties agree that the court
or arbitrator
making such determination shall have the power to reduce the scope
and/or
duration and/or geographic area of such provision, and/or to delete
specific
words or phrases, and in its reduced form, such provision shall
then be
enforceable and shall be enforced. The parties agree and
acknowledge that the
breach of this noncompetition covenant will cause irreparable
damage to the
Company, and upon breach of any provision of this noncompetition
covenant, the
Company shall be entitled to injunctive relief, specific
performance, or other
equitable relief; provided, however, that this shall in no way
limit any other
remedies which the Company may have (including, without limitation,
the right to
seek monetary damages).
Should the
Employee violate the provisions of this noncompetition
covenant, then in addition to all other rights and remedies
available to the
Company at law or in equity, the duration of this covenant shall
automatically
be extended for the period of time from which the Employee began
such violation
until such violation ceases.
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6.
TERMINATION.
The
Employee's employment may be terminated under the following
circumstances:
(a) Death.
The Employee's employment with the Company shall terminate upon
his death.
(b)
Disability. The Company may give one (1) month's notice that it
will
terminate the Employee's employment with the Company if, as a
result of the
Employee's incapacity due to physical or mental illness, the
Employee is unable
to perform his duties under this Agreement on a full-time basis for
more than 90
consecutive days.
(c)
Termination By The Company for Cause. The Company may terminate
this
agreement for Cause. A termination for Cause may be for one or more
of
