EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of April
1, 2003 between KEN BOENISH, an individual with a residence at 2266 Eagles Nest
Drive, Lafayette Colorado 80026 (the "Executive"), and COLORADO SATELLITE
BROADCASTING, INC., (CSB) A WHOLLY OWNED SUBSIDIARY OF NEW FRONTIER MEDIA INC.
("New Frontier"), a Colorado corporation with a principal office at 7007
Winchester Circle, Suite 200, Boulder, Colorado, recites and provides as
follows:
WHEREAS, CSB desires to retain the services of Executive, and Executive
desires to be employed by CSB, all on the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, CSB and Executive agree as follows:
1. EMPLOYMENT PERIOD. CSB hereby agrees to employ Executive, and
Executive hereby agrees to accept employment by CSB, in accordance with the
terms and provisions of this Agreement, for the period commencing on April 1,
2003 ("the Effective Date") and ending at midnight on March 31, 2005 (the
"Employment Period").
2. TERMS OF EMPLOYMENT.
A. POSITION AND DUTIES.
(i) During the Employment Period, Executive shall perform
such duties, and have such title, as New Frontier Media, Inc., through its Board
of Directors or the Board's designee (collectively "the Board"), in its sole
discretion, shall determine. The Board has determined that, at the outset of the
Employment Period, Executive shall serve as President of CSB, with duties
commensurate with that position.
(ii) During the Employment Period, Executive agrees to
devote his full-time attention to the business and affairs of CSB. Executive's
employment under this Agreement shall be Executive's exclusive employment during
the term of this Agreement.
B. COMPENSATION.
(i) Base Salary. During the Employment Period, Executive
shall receive a base salary ("Base Salary"), which shall be paid in equal
installments on a biweekly basis, at the rate of Three Hundred Thousand Dollars
($300,000.00) per annum.
(ii) Bonus. In addition to Executive's Base Salary,
Executive shall receive bonuses as follows:
(a) Bonus for year 1 (April 1, 2003 through March 31,
2004):
-If and when CSB has received One Million Dollars ($1
million) in revenue from its agreements with On Command,
Executive shall receive a bonus of $25,000;
-If and when CSB has received Two Million Dollars ($2
million) in revenue from its agreements with On Command,
Executive shall receive an additional bonus of $25,000;
-If and when CSB has received Three Million Dollars ($3
million) in revenue from its agreements with On Command,
Executive shall receive an additional bonus of $25,000.
Such bonuses will be payable only if, and to the extent that, the On Command
revenues are received by CSB during year 1, and will be payable at the end of
the quarter in which the relevant benchmark is reached.
(b) Bonus for year 2 (April 1, 2004 through March 31,
2005):
-If and when CSB has received One Million Dollars ($1
million) in revenue from its agreements with On Command,
Executive shall receive a bonus of $25,000;
-If and when CSB has received Two Million Dollars ($2
million) in revenues from its agreement with On Command,
Executive shall receive an additional bonus of $25,000;
-If and when CSB has received Three Million Dollars ($3
million) in revenues from its agreement with On Command,
Executive shall receive an additional bonus of $25,000.
Such bonuses will be payable only if, and to the extent that, the On Command
revenues are received by CSB during year 2, and will be payable at the end of
the quarter in which the relevant benchmark is reached.
(c) Further bonus(es) may be granted to Executive by CSB
in the sole discretion of the compensation committee of
the Board of Directors of New Frontier Media, Inc.
(iii) Expenses. During the Employment Period, Executive
shall be entitled to receive reimbursement for all employment-related expenses
incurred by Executive in accordance with the policies, practices and procedures
of CSB as in effect generally from time to time after the Effective Date with
respect to executives of CSB.
(iv) Vacation. During the Employment Period, Executive
shall be entitled to three weeks paid vacation annually, which may be used in
accordance with the policies, programs and practices of CSB, which are in effect
generally from time to time after the Effective Date with respect to other
executives of CSB.
(v) Sick Leave. During the Employment Period, Executive
shall be entitled to be paid sick leave in accordance with the policies,
programs and practices of CSB, which are in effect generally from time to time
after the Effective Date with respect to other executives of CSB.
(vi) Car Allowance. During the Employment Period, Executive
shall be entitled to a car allowance of $850 per month, in accordance with CSB's
car allowance policy, in lieu of expenses associated with the operation of his
automobile.
(vii) Other Benefits. During the Employment Period,
Executive shall be entitled to such health insurance
and other benefits, as are provided generally to
other executives at CSB, in accordance with the
policies, programs and practices of CSB which are in
effect from time to time after the Effective Date.
(viii) Relationship Subsequent to this Agreement. On
or before September 30, 2004, CSB and Executive shall
address the subject of a new or extended employment
agreement to take effect upon the expiration of this
Agreement. If the parties do not execute a new
written agreement upon the expiration of this
Agreement, but the parties are negotiating a new
agreement in good-faith, Executive shall be paid the
base salary as outlined within this Agreement in
regular bi-weekly installments.
3. EARLY TERMINATION OF EMPLOYMENT.
A. DEATH OR DISABILITY. Executive's employment shall terminate
automatically upon the death of Executive. Executive's employment may be
terminated upon the reasonable and good faith determination of the Board that
Executive is disabled. For purposes of this Agreement, Executive shall be deemed
"disabled" if he is unable, as a result of incapacity due to mental or physical
condition or illness, to perform the material functions of his job, even with
reasonable accommodation, for a total of 90 days out of any 6 month period.
B. CAUSE. CSB may terminate Executive's employment during the
Employment Period for Cause. For purposes of this Agreement, "Cause" shall mean
and be limited to (i) the conviction of Executive for committing an act of
fraud, embezzlement, theft or other act constituting a crime, or the guilty or
nolo contendere plea of Executive to such a crime; (ii) fraudulent conduct or an
act of dishonesty or breach of trust on the part of Executive in connection with
CSB's business or the business of any of its subsidiaries; (iii) material
violation of any CSB policy instituted to protect CSB or its employees; (iv)
material failure, neglect, or refusal by Executive properly to discharge,
perform or observe any or all of Executive's job duties, provided Executive has
been given written notice of such failure, neglect or refusal, and has not cured
such within 10 days thereafter; (v) material breach of any of the
representations, warranties or covenants set forth in this Agreement.
C. WITHOUT CAUSE. CSB may terminate Executive's employment
during the Employment Period without cause.
In the event that CSB (i) terminates Executive's employment
without cause, (ii) materially diminishes Executive's position or
responsibilities, (iii) or otherwise materially breaches this Agreement, or in
the event that there is a change in control as defined in Section 6 herein, CSB
shall honor its payment obligations to Executive, Executive shall not be
required to provide further services to CSB under this Agreement, and Executive
shall be free to seek employment elsewhere without regard to whether any
prospective employer is a competitor of CSB. However, in the event that
Executive becomes employed elsewhere during the term of this Agreement, his
compensation from such other employment shall be applied toward the mitigation
of CSB's payment obligations hereunder.
D. NOTICE OF TERMINATION. Any termination (whether based on
disability, with cause or without cause) shall be communicated by a written
Notice of Termination to the other party, and may be sent via first class mail,
facsimile transmission, email or personal delivery.
E. DATE OF TERMINATION. "Date of Termination" shall mean: (i)
the date of transmission of the Notice of Termination by facsimile, email or
personal delivery, or (ii) three calendar days after the date of mailing by
first class mail, or (iii) if Executive's employment is terminated by reason of
Executive's death, the Date of Termination shall be the date of death of
Executive.
4. OBLIGATIONS OF CSB UPON EARLY TERMINATION.
A. WITHOUT CAUSE. If during the Employment Period, CSB shall
terminate Executive's employment without cause, then CSB shall provide to
Executive the following:
(i) CSB shall pay to Executive, within thirty days after
the Date of Termination, any accrued base salary, vacation pay, expense
reimbursement and any other entitlements accrued by Executive under Section
2(B), to the extent not previously paid (the sum of the amounts described in
this subsection shall be hereinafter referred to as the "Accrued Obligations").
(ii) CSB shall continue to pay to Executive, in regular
bi-weekly installments, Executive's Base Salary under the Agreement for the
duration of the Employment Period and CSB shall pay Executive any applicable
bonus payments under Section 2(B)(ii). If Executive commences employment with
another employer, or if Executive engages in other work for compensation, then
CSB's obligation to pay bi-weekly installments shall be reduced or eliminated to
the extent Executive receives compensation from the other employer or work.
(iii) CSB shall continue to provide benefits to Executive
at least equal to those which would have been provided to him in accordance with
the plans, programs, practices and policies which are generally applicable to
other peer executives, for the duration of the Employment Period. If Executive
commences employment with another employer and is eligible to receive medical or
other welfare benefits under another employer-provider plan, the medical and
other welfare benefits to be provided by CSB as described herein shall
terminate.
B. DEATH. If Executive's employment is terminated by reason of
the death of Executive during the Employment Period, this Agreement shall
terminate without further obligation by CSB to Executive's legal representatives
under this Agreement, other than for payment of Accrued Obligations (which shall
be paid to Executive's estate or beneficiary, as applicable, in a lump sum in
cash within thirty days after the Date of Termination).
C. CAUSE. If Executive's employment shall be terminated for
Cause, this Agreement shall terminate without any further obligations to
Executive whatsoever, other than any obligations which may be required by law.
To the extent CSB is required by law to make payment to Executive based on an
accrued obligation, such payment shall be made within thirty days after the Date
of Termination.
D. RESIGNATION. If Executive resigns his employment with CSB,
this Agreement shall terminate without any further obligations to Executive
whatsoever, other than any obligations which may be required by law. To the
extent CSB is required by law to make payment to Executive based on an accrued
obligation, such payment shall be made within thirty days after the Date of
Termination.
E. DISABILITY. If Executive's employment shall be terminated
by reason of Executive's Disability during the Employment Period, this Agreement
shall terminate without further obligation to Executive, other than for payment
of Accrued Obligations. Accrued Obligations shall be paid to Executive in a lump
sum in cash within thirty days after the Date of Termination.
5.CHANGE IN CONTROL.
In the event of a "Change in Control" (as defined in this Section 6) of
New Frontier during the Employment Period, the Executive may terminate his
employment with CSB by giving 30 days' notice thereof within six months after
the occurrence of such Change in Control. A "Change in Control" of New Frontier
shall be deemed to have occurred as of the first day that any one or more of the
following conditions shall have occurred:
A. Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Act"), becomes
the "beneficial owner" (as defined in Rule 13-d under the Act), directly or
indirectly, of securities representing more than fifty percent (50%) of the
total voting power represented by New Frontier's then outstanding voting
securities;
B. A change in the composition of the Board, as a result of
which fewer than a majority of the directors are Incumbent Directors. "Incumbent
Directors" shall mean directors who either (a) are directors of New Frontier as
of the date hereof, or (b) are elected, or nominated for election, to the Board
with the affirmative votes of at least a majority of the Incumbent Directors at
the time of such election or nomination (but shall not include an individual
whose election or nomination is in connection with an actual or threatened proxy
contest relating to the election of directors of New Frontier); or
C. New Frontier merges or consolidates with any other
corporation after which a majority of the shares of the resulting entity are not
held by the shareholders of New Frontier prior to the merger, or New Frontier
adopts, and the stockholders approve, if necessary, a plan of complete
liquidation of New Frontier, or New Frontier sells or disposes of substantially
all of its assets.
6. CONFIDENTIAL INFORMATION.
A. CONFIDENTIAL INFORMATION. As used in this Agreement,
"Confidential Information" includes, without limitation, design information,
manufacturing information, business, financial, and technical information, sales
and processing information, product information, customer lists, vendors, vendor
lists, pricing information, corporation and, corporation and personal business
opportunities, software, computer disks or files, or any other electronic
information of any kind, Rolodex cards or other lists of names, addresses or
telephone numbers, financial information, projects, potential projects, current
projects, projects in development and future projects, forecasts, plans,
contracts, releases, and other documents, materials, writings or information,
including those which are prepared, developed or created by Executive, or which
come into the possession of Executive by any means or manner, and which relate
directly or indirectly to CSB or any of its owners, predecessors, successors,
subsidiaries, affiliates, and its shareholder, directors and officers (all of
the above collectively referred to as "Confidential Information"). Confidential
Information includes information developed by Executive in the course of
Executive's services for CSB, as well as other Confidential Information to which
Executive may have access in connection with Executive's services. Confidential
Information also includes the confidential information of other individuals or
entities with which CSB has a business relationship. Confidential Information
shall not include any information (a) which is in the public domain or which
enters the public domain through no act of omission of Executive or (b) which
was in the possession of Executive prior to the commencement of his employment
with CSB. For purposes of this section 5, the term "CSB" shall include all of
its predecessors, subsidiaries, affiliates and parent corporation.
B. DUTY OF CONFIDENTIALITY. Executive will maintain in
confidence and will not, directly or indirectly, disclose or use (or allow
others working with or related to Executive to disclose or use), either during
or after the term of this Agreement, any Confidential Information belonging to
CSB, whether in oral, written, electronic or permanent form, except solely to
the extent necessary to perform services on behalf of CSB. Upon termination of
this Agreement, or at the request of CSB prior to its termination, Executive
shall deliver forthwith to
CSB all original Confidential Information (and all copies thereof) in
Executive's possession or control belonging to CSB and all tangible items
embodying or containing Confidential Information.
C. DOCUMENTS, RECORDS, ETC. All documents, records, data,
equipment and other physical property, whether or not pertaining to Confidential
Information, which are furnished to Executive by CSB or are produced by
Executive in connection with Executive's services will be and remain the sole
property of CSB. Executive will return to CSB forthwith all such materials and
property upon the termination of this Agreement or sooner if requested by CSB.
D. ASSIGNMENT OF RIGHTS. Executive shall make full and prompt
disclosure to CSB of any and all designs, intellectual property, software,
inventions, discoveries, or improvements (individually and collectively,
"Inventions") made by Executive as a result or product of his employment
relationship with CSB. Executive hereby assigns to CSB without additional
compensation the entire worldwide right, title and interest in and to such
Inventions, and related intellectual property rights and without limitation all
copyrights, copyright renewals or reversions, trademarks, trade names, trade
dress rights, industrial design, industrial model, inventions, priority rights,
patent rights, patent applications, patents, design patents and any other rights
or protections in connection therewith or related thereto, for exploitation in
any form or medium, of any kind or nature whatsoever, whether now known or
hereafter devised. To the extent that any work created by Executive can be a
work for hire pursuant to U.S. Copyright Law, the parties deem such work a work
for hire and Executive should be considered the author thereof. Executive shall,
at the request of CSB, without additional compensation from time to time
execute, acknowledge and deliver to CSB such instruments and documents as CSB
may require to perfect, transfer and vest in CSB the entire right, title and
interest in and to such inventions. In the event that Executive does not timely
perform such obligations, Executive hereby makes CSB and its officers his
attorney in fact and gives them the power of attorney to perform such
obligations and to execute such documents on Executive's behalf. Executive shall
cooperate with CSB upon CSB's request and at CSB's cost but without additional
compensation in the preparation and prosecution of patent, trademark, industrial
design and model, and copyright applications worldwide for protection of rights
to any Inventions.
E. INJUNCTIVE RELIEF. Executive acknowledges that a violation
or attempted violation on Executive's part of any agreement in this Section 5
may cause irreparable damage to CSB, and accordingly, Executive agrees that CSB
shall be entitled as a manner of right to an injunction from any court of
competent jurisdiction restraining any violation or further violation of such
agreement by Executive; such right to an injunction, however, shall be
cumulative and in addition to whatever other remedies that CSB may have. Terms
and agreements set forth in this Section 5 shall survive the expiration or
termination of this Agreement for any reason. The existence of any claim of
Executive, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by CSB of the covenants contained in
this Agreement.
7. NON-COMPETE; NON-SOLICITATION
A. NON-COMPETE. Except as is set forth below, for a period
commencing on the Effective Date hereof and ending on the date that Executive
ceases to be employed by CSB, (the "Non-Competition Period"), Executive shall
not, directly or indirectly, either for himself or any other person, own,
manage, control, materially participate in, invest in, permit his name to be
used by, act as consultant or advisor to, render material services for (alone or
in association with any person, firm, corporation or other business
organization) or otherwise assist in any manner any business which is then a
provider of adult pay-per-view television services in the US., or is otherwise a
substantial competitor of CSB's business at the date that Executive ceases to be
employed by CSB (collectively, a "Competitor"); provided, however, that the
restrictions set forth above shall immediately terminate and shall be of no
further force or effect (i) in the event of a default by CSB of the performance
of any of the obligations hereunder, which default is not cured within ten (10)
days after notice thereof, (ii) if Executive's employment has been terminated by
CSB without Cause, or (iii) Executive ceases to be employed after a Change In
Control. Nothing herein shall prohibit Executive from being a passive owner of
not more than five percent (5%) of the equity securities of a publicly-traded
enterprise which is a competitor of a substantial portion of CSB's business, so
long as he has no active participation in the business of such enterprise. For
purposes of this section 6, the term "CSB" shall include its affiliates and
parent corporation.
B. NON-SOLICITATION. During the Non-Competition Period and for
one year thereafter, Executive shall not, directly or indirectly, (i) induce or
attempt to induce or aid others in inducing anyone working at CSB to cease
working at CSB, or in any way interfere with the relationship between CSB and
anyone working at CSB except in the proper exercise of Executive's authority or
(ii) in any way interfere with the relationship between CSB and any customer,
supplier, licensee or other business relation of CSB.
C. SCOPE. If, at the time of enforcement of this Section 6, a
court shall hold that the duration, scope, area or other restrictions stated
herein are unreasonable under circumstances then existing, the parties agree
that the maximum duration, scope, area or other restrictions reasonable under
such circumstances shall be substituted for the stated duration, scope, area or
other restrictions.
D. INDEPENDENT AGREEMENT. The covenants made in this Section 6
shall be construed as an agreement independent of any other provisions of this
Agreement, and shall survive the termination of this Agreement. Moreover, the
existence of any claim or cause of action of Executive against CSB, whether or
not predicated upon the terms of this Agreement, shall not constitute a defense
to the enforcement of these covenants.
8.ARBITRATION.
No dispute between CSB (or any of its officers, directors, employees,
subsidiaries, affiliates or parent corporation) and Executive, which is in any
way related to the employment of Executive (including but not limited to claims
of wrongful termination; racial, sexual or other discrimination or harassment;
defamation; and other employment-related claims or allegations) shall be the
subject of a lawsuit filed in state or federal court. Instead, any such dispute
shall be submitted to binding arbitration before the American Arbitration
Association ("AAA") or any other individual or organization on which the parties
agree or which a court may appoint.1 It is understood that both sides are hereby
waiving the right to a jury trial.
The arbitration shall be initiated in Boulder, Colorado and shall be
administered by AAA under its commercial arbitration rules before a single
arbitrator that shall be mutually agreed upon by the parties hereto. If the
parties cannot agree on a single arbitrator, then an arbitrator shall be
selected in accordance with the rules of AAA. The arbitration must be filed
within six months of the act or omission which gives rise to the claim. Each
party shall be entitled to take any discovery as is permitted by the Arbitrator.
In determining the extent of discovery, the Arbitrator shall exercise
discretion, but shall consider the expense of the desired discovery and the
importance of the discovery to a just adjudication.
The Arbitrator shall render an award which conforms to the facts, as
supported by competent evidence (except that the Arbitrator may accept written
declarations under penalty of perjury, in addition to live testimony), and the
law as it would be applied by a court sitting in the state of Colorado. The cost
of arbitration shall be advanced equally by the parties; however, the Arbitrator
shall have the power, in his discretion, to award some or all of the costs of
arbitration and reasonable attorneys' fees to the prevailing party. Any party
may apply to a court of competent jurisdiction for entry of judgment on the
arbitration award.
9. NO CONFLICTING OBLIGATIONS OF EXECUTIVE.
Executive represents and warrants that he is not subject to any duties or
restrictions under any prior agreement with any previous employer or other
person or entity, and that he has no rights or obligations which may conflict
with the interests of CSB or with the performance of Executive's duties and
obligations under this Agreement. Executive agrees to notify CSB immediately if
any such conflicts occur in the future.
Notwithstanding the above, either CSB or Executive may file with an
appropriate state of federal court a claim for injunctive relief in any case
where the filing party seeks provisional injunctive relief or where permanent
injunctive relief is not available in arbitration. The filing of a claim for
injunctive relief in state or federal court shall not allow either party to
raise any other claim outside of arbitration.
10. SUCCESSORS.
A. This Agreement is personal to Executive and shall not be
assignable by Executive.
B. This Agreement shall inure to the benefit of CSB and its
successors and assigns. Upon written approval by Executive, CSB may assign this
Agreement to any successor or affiliated entity, subsidiary, sibling, or parent
company.
11. MISCELLANEOUS
A. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without reference to the
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement contains
the full and complete understanding between the parties hereto and supersedes
all prior understandings, whether written or oral pertaining to the subject
matter hereof. This Agreement may not be amended or modified otherwise than by
written agreement executed by Executive and by the designated representative of
the Board.
B. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, or by facsimile,
or by email, or by hand delivery to such address as either party shall have
furnished to the other in writing in accordance herewith.
C. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
D. CSB may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
E. The failure of either party to insist upon strict
compliance with any provision of this Agreement, or the failure to assert any
right either party may have hereunder, shall not be deemed to be a waiver of
such provision or right or any other provision or right of this Agreement.
IN WITNESS WHEREOF, Executive has hereunto set Executive's
hand and, pursuant to the authorization from its Board of Directors, CSB has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
COLORADO SATELLITE EXECUTIVE
BROADCASTING, INC.
A Colorado Corporation
By /s/ Michael Weiner By /s/ Ken Boenish
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Ken Boenish