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EXECUTIVE EMPLOYMENT AGREEMENT
PLAYBOX AND MALONEY
THIS AGREEMENT is made as of this 14
th day of December , 2007
| BETWEEN |
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PLAYBOX (US) INC. , a
company incorporated under the |
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laws of the State of Nevada having a
business address at Suite |
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5.18, MLS Business Centre, 130
Shaftesbury Avenue, |
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London, England. W1D 5EU |
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(the " Company ") |
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OF THE FIRST PART |
| AND : |
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HARRY C. MALONEY , having
an address at The Manse, |
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34 High Street, Stoke Goldington,
Buckinghamshire, |
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England. MK16 8NR |
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(the " Executive ") |
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OF THE SECOND
PART |
WHEREAS :
A. The Company is
in the business of commercialising an on-line, Internet based music
software and hardware application known as the PlayBOX (the “
Business ”);
B. The Board of
the Company (the " Board ") consider the Executive to be of
significant value to the Company and the Executive has acquired
special skills and abilities and an extensive background in, and
knowledge of, the business and industry in which the Company is
engaged; and
C. The Board
recognises that it is in the best interests of the Company that the
Company retain the continuing dedication of the Executive; and
D. The Company has
agreed to offer employment to the Executive upon the terms and
conditions herein set forth;
NOW THEREFORE in consideration of
£1.00 paid by each party to each of the others, receipt of
which is acknowledged, in consideration of the confidential and
proprietary information provided to the Executive by the Company,
in consideration of the mutual covenants herein contained and for
other good and valuable consideration (the receipt and sufficiency
of consideration is hereby acknowledged by the Executive) the
parties hereto agree as follows:
1.1. Offer and
Acceptance : The Executive will become an employee for a term
set out in Section 5.1 the Company will continue to employ the
Executive to be the “ Director of Business
Strategy ” of the Company, and to assist the Company
as set out herein, and the Executive hereby accepts such
employment.
1.2. Duties and
Responsibilities : The primary duties and responsibilities of
the Executive shall be as set out in Schedule “A”
attached hereto (the “ Services ”). The
Executive’s normal place of work is Suite 5.18, MLS Business
Centre, 130 Shaftesbury Avenue, London, England, W1D 5EU, or such
other places in the UK which the Board or Company may reasonably
require for the proper performance of his duties. The Executive
further agrees to travel on the Company’s businesses (both
within the UK or abroad) at the Company’s expense as may be
required for the proper performance of his duties.
1.3.
1.4. Full-Time
Employment : The Executive agrees to devote his best efforts,
skills, judgement and abilities to the performance of his
employment duties and responsibilities as set out herein and agrees
to work on a full-time basis for the Company.
1.5. Obey
Board : The Executive shall at all times obey and carry out all
lawful orders given to him by the Board of Directors of the
Company.
1.6. Company
Policies : In the course of providing the Services to the
Company, the Executive agrees to comply with the Company’s
corporate policies including, without limitation, the companies
privacy policy, and code of conduct as determined by the Company
from time to time.
1.7.
Confidentiality Agreement : The employment of the Executive
with the Company is subject to the Executive signing and agreeing
to be bound to the terms and provisions of the Confidentiality
Agreement attached hereto as Schedule "B".
2.1. Annual
Salary : The Company shall pay the Executive an annual salary
of 50,000 GBP per year (the " Salary "). The Salary
shall be payable in equal monthly instalments, payable in arrears,
subject to the usual statutory source deductions, including income
tax and other deductions required by the applicable government
legislation. Payment of the Salary shall be made on the 28th day of
each month, provided that if such day is not a business day, the
salary and any other amounts payable to the Executive that are due
on such date shall be paid to the Executive on the immediately
preceding business day. For greater certainty, due to the
management nature of the Employee’s engagement, the Employee
shall not be entitled to any overtime pay in addition to the
Salary. Assuming that this Agreement is still in effect, at the end
of the first year of employment the Company will increase the
Executive’s Annual Salary to 60,000GBP.
2.2. Bonus
: The Company will, within 120 days of the end of each fiscal year,
make a payment to the Executive of an annual performance bonus
based upon the following criteria; 2.2.1 The
Company achieving its proposed budget for the relevant fiscal
year.
2.2.2 The bonus will be 100% of the Annual
Salary.
2.3. Should the
Executive’s employment cease proior to the end of a fiscal
year, the bonus will be calculated on a pro rata basis. the (the
“ Performance Bonus ”).
2.4. Benefits: The
Company will provide the Executive with a vehicle or the cash
equivalent of 750GBP per calendar month plus all costs associated
with running the vehicle. Additionally, the Company will provide
the Executive with private health insurance cover; and life
insurance to a sum of £500,000;
Stock Options : In addition to the above
compensation, and as additional consideration for the agreement of
the Executive to the covenants and agreements herein, the Company
agrees to cause the grant to the Executive of an option for the
Executive to acquire up that number of Common shares in the capital
of the Company that is equal to five percent (2%) of the number of
issued Common shares in the capital of the Company outstanding at
the date of grant, at an exercise price of US$0.25 per
Common share, such options to be in accordance with the terms of
the Company’s Stock Option Plan and Option Certificate
attached hereto as Schedule “D”
| 3. |
REIMBURSEMENT OF EXPENSES AND
BENEFITS TO EXECUTIVE |
3.1.
Reimbursement : The Company will reimburse the Executive for
all expenses incurred by the Executive in the performance of this
Agreement, provided that the Executive must provide the Company
with written expense accounts with respect to each of the
expenditures incurred by the Executive in the prior calendar month,
and provided that the Company will not reimburse the Executive for
single expenses over £5,000 or a monthly aggregate of expenses
over £10,000.00, if the Executive does not obtain the prior
written approval of the Chairman of the Board of the Company, or if
the Chairman is the Executive, any other director of the
Company.
3.2.
Vacations : The Executive shall be entitled initially to 25
days paid vacation during each fiscal year of the Company adjusted
pursuant to the Company policy based on years employed by the
Company, at such times as the Executive and the Company may
mutually agree. . In the case of unused vacation a maximum of 5
days entitlement may be carried forward to the following year In
addition, the Executive shall be entitled to all statutory
holidays. On termination of the Executive’s employment the
Executive shall be entitled to be paid in lieu of accrued but
undertaken holiday.
3.3.
Sick Days : Should the Executive
become ill during the term of employment the Company will continue
to make and he will continue to receive full pay and contractual
benefits under this Agreement while absent due to incapacity. The
maximum period during which such payments will be made by the
Company will be six months from the first day that the Executive
became incapacitated.
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TITLE TO INTELLECTUAL
PROPERTY |
4.1. Title to
Property. As a consequence of the Executive’s employment
with the Company the
Executive will have access to and may develop
intellectual property in the course of the Executive’s
employment and, accordingly, the Executive hereby assigns the
following rights to the Company:
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(a) |
all discoveries, concepts, inventions or
improvements, whether patentable or not, made, discovered,
conceived, invented or improved by the Executive during the period
commencing on the date hereof and ending on the date the Executive
ceases for any reason to be an employee of the Company, and whether
or not made, discovered, conceived, invented or improved by the
Executive on the Company’s premises or with the other
persons;
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(b) |
any ideas, plans, concepts, copyrightable
materials, trade dress, copyrights, trademarks, the equity concept
of the Company, and any other intellectual property conceived or
created by the Executive during the period commencing on the date
hereof and ending on the date the Executive ceases for any reason
to be an employee of the Company; and
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(c) |
any process, formula, plan, skill, design,
know-how, method of advertising, marketing, research, equipment,
device or method of doing business, developed or being developed,
made, used, sold or installed by or made known to the Executive
during the period of the Executive’s employment hereunder or
resulting from or suggested by any work which the Executive may do
for the Company or its affiliates at the request of the Company or
its affiliates and relating to any business carried on or proposed
to be carried on by the Company or its affiliates,
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(such rights are, collectively, the
“Intellectual Property”) and the Intellectual Property
shall at all times belong to and be the property of the
Company.
4.2. Disclose
Intellectual Property to the Company. The Executive covenants
and agrees with the Company that the Executive will fully and
freely (and without expense to the Company) communicate and
disclose to the Company any and all Intellectual Property developed
by the Executive.
4.3. Protect
Intellectual Property. The Executive acknowledges that the
success, profitability, and competitive position of the Company
require that strict confidentiality be maintained at all times with
respect to all Intellectual Property, and that any breach of the
terms of this Agreement is capable of causing substantial damage to
the Company. Accordingly, the Executive covenants and agrees with
the Company that during the period in which the Executive provides
services to the Company and at all times thereafter to:
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(a) |
at the expense of the Company, at all times
(both during the period of the Executive’s employment
hereunder and at all times thereafter) assist the Company, its
subsidiaries and affiliates or their nominees in every way to
protect the Intellectual Property of the Company and its
subsidiaries and affiliates under this Agreement and to vest in the
Company or its affiliates, the entire right, title and interest,
including, without limitation, the copyright, in and to any and all
of the Intellectual Property;
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(b) |
keep all Intellectual Property in the strictest
confidence;
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(c) |
hold all Intellectual Property in trust for the
Company;
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(d) |
will notify the Company promptly in writing of
any misuse or misappropriation of, or unauthorized access to, the
Intellectual Property which may come to the Executive’s
attention and will take all reasonable steps requested by the
Company to prevent any such misuse, misappropriation or
unauthorized access; and
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(e) |
not to directly, indirectly or in any other
manner:
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(i) |
publish or in any way participate or assist in
the publishing of any Intellectual Property;
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(ii) |
use any Intellectual Property, except as may be
required for and in the course of carrying out the terms of this
Agreement; or
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(iii) |
disclose or assist in the disclosure of any
Intellectual Property to any person, firm or corporation.
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4.4. Waiver of
Moral Rights. The Executive agrees to and does hereby
irrevocably and expressly waive in favour of the Company, and
agrees to hereafter irrevocably and expressly waive in favour of
the Company, any and all moral rights arising under all applicable
legislation, including but not limited to such legislation in force
in the United States and England (or any successor legislation of
similar force and effect) or similar legislation in other
applicable jurisdictions or at common law that the Executive has
with respect to any of the Intellectual Property created or
prepared by the Executive, including without limitation, the right
to attribution of authorship, the right to restrain or claim
damages for any distortion, mutilation, modification or enhancement
of any of the Intellectual Property and the right to remain, use or
reproduce any of the Intellectual Property in any context and in
connection with a product, service, cause or institution, and the
Executive agrees that the Company may use or alter the Intellectual
Property, or any part thereof, as the Company sees fit in its
absolute discretion.
4.5. Return of
Property. The Executive acknowledges and agrees that the
Executive shall return to the Company any property, documents,
software, manuals, reports, charts, equipment or any other
materials used in connection with the Executive’s employment
forthwith after termination of the engagement of the Executive.
4.6.
Exemptions . The provisions of Section 4.3 shall not apply
to any Intellectual Property which:
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(a) |
is in the public domain, is publicly disclosed
by the Company, or becomes public knowledge through no fault of the
Executive;
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(b) |
the Company provides prior written consent for
the disclosure of, provided that the disclosure is made in
compliance with any conditions imposed in connection with the
permission of such disclosure; or
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(c) |
the Executive had knowledge of prior to the date
of their employment by the
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Company and which was
not previously acquired from the Company or from any party having
an obligation of confidence to the Company.
4.7. Fiduciary
Duty. The Executive acknowledges and agrees that as a result of
the sensitive nature of the Intellectual Property, the Executive
holds the same in trust for the Company and its principals and the
Executive stands in a fiduciary relationship with the Company. The
Executive agrees to act accordingly.
4.8.
Remedies. The Executive acknowledges that any breach of the
terms of this Part 4 will cause irreparable harm to the Company
which cannot be calculated or fully or adequately compensated by
recovery of damages alone. Accordingly, the Executive agrees that
the Company shall be entitled to interim and permanent injunctive
relief, specific performance and other equitable remedies, and that
resort to such relief will not be considered a waiver of any other
rights or remedies that the Company may have for damages or
otherwise.
4.9. Further
Agreements Regarding Intellectual Property . The Executive also
agrees to execute such further documents not inconsistent with this
Agreement and to do such further acts and things which are not
unlawful for the Executive to do for the purpose of keeping protect
the Intellectual Property and in order to preserve the proprietary
rights therein which the Company is entitled to protect.
4.10. Duration
and Survival . Notwithstanding any other term of this
Agreement, the terms of this Part 4 shall be for a term and shall
survive the termination of this Agreement. Except with the prior
consent of the Company, the obligations of the Executive under such
Part shall not be in any way diminished or otherwise affected for
any reason whatsoever including, without limiting the generality of
the foregoing, the breach by the Company of any term or condition
of this Agreement or the termination of this Agreement.
5.1. Term :
Subject to the other provisions in this Part 5, the Executive's
employment by the Company will commence as of the Commence Date and
will continue in perpetuity thereafter, subject to the terms of
this Agreement.
5.2.
Termination by Executive : The Executive may terminate his
employment with the Company pursuant to the terms of this
Agreement:
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(a) |
at any time, upon the Executive providing the
Company with two (2) months prior notice in writing; or
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(b) |
upon a material breach or default of any of the
terms of this Agreement by the Company if such material breach or
default has not been remedied within 30 days after written notice
of material breach or default has been delivered by the Executive
to the Company.
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5.3.
Termination by the Company for Cause : Not withstanding the
provision of clause 5.5 below, the Company may immediately and
without notice terminate the Executive's employment under this
Agreement immediately upon the occurrence of any of the following
events: the conviction of the Executive of a criminal offence under
the laws of the United Kingdom (other than an offence under any
road traffic legislation, or other in the United Kingdom or
elsewhere for which a fine or non-custodial penalty is
imposed)..
(b)the Executive commits
any serious or repeated breach or non-observance of any of the
provisions of this agreement or refuses or neglects to comply with
any reasonable and lawful directions of the Board or is, in the
reasonable opinion of the Board, negligent and incompetent in the
performance of his duties.
(c) the Executive is guilty of and fraud or dishonestly or acts in
a manner which in the opinion of the Board brings or is likely to
bring the Executive or Company into disrepute or is materially
adverse to the interest of the Company.
(d) the Executive dying or becoming permanently disabled or
disabled for a period exceeding 60 consecutive days or 60 days
calculated on a cumulative basis over any 12-month period during
the term of this Agreement. Save that the Company shall not
terminate the Executive’s employment solely on such grounds
where any entitlement to benefit from sick pay would be
forfeited.
(e) becomes of unsound mind or a patient under any statute relating
to mental health.
(and any such event is called “Just
Cause”).
Notwithstanding the foregoing, the Executive
shall not be deemed to have been terminated for Just Cause unless
and until:
(f) the Executive and,
if the Executive wishes, the Executive’s counsel have had a
reasonable opportunity to make submissions to the Board in respect
of the termination of the Executive’s employment; and,
subsequently,
(g) there has been delivered to the Executive a certified copy of a
resolution approved by a majority of the Board approving such
termination.
5.4.
Compensation due to the Executive upon Termination with Just
Cause : In the event of the termination of the Executive's
employment under this Agreement for Just Cause (as set out in
Section 5.3), the Company shall pay to the Executive within 10 days
of termination the full amount accrued pursuant to Clauses 2 and 3
of the Agreement as of the Date of Termination, and the Company
shall have no further severance obligations and the Executive shall
have no further entitlements from the Company.
5.5.
Termination by the Company other than for Just Cause : The
Company may terminate the Executive's employment under this
Agreementon two month’s notice.
5.6.
Compensation due to the Executive upon Termination without Cause
or for Good Reason : If, at any time, the Executive’s
employment is terminated by the Company other than for Just Cause,
or
is terminated by the Executive for Good Reason
(as defined in Schedule “C”), then the Company will pay
to the Executive or to the Executive’s order a total amount
of 20,000GBP and the Company will take such actions and pay such
other amounts as are set out in section 2 of Schedule
“C”, provided that:
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(a) |
if the Executive is at any time by reason of
illness or mental or physical disability or incapacity prevented
from, or incapable of, performing the Executive’s duties
hereunder, the Executive shall not be entitled to receive
remuneration for that portion of the notice period during which
such incapacity continues if the Executive is also entitled to
receive any disability insurance provided;
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For greater certainty, if the Executive
terminates the Executive’s employment other than for Good
Reason then this section shall not apply.
The Company may delay payment of any payments
which may be contemplated
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