Nevada
|
000-52961
|
20-3356659
|
(State or other jurisdiction
of incorporation)
|
(Commission File
Number)
|
(IRS Employer
Identification No.)
|
6630 West Sunset Blvd.
Los Angeles, CA, 90027
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(Address of Principal Executive Offices)
|
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(310) 460-9215
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(Issuer's Telephone Number)
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
☐
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
☐
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
☐
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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ITEM 1.01
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Entry Into a Material Definitive Agreement
|
ITEM 3.02
|
Unregistered Sales of Equity Securities
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ITEM 7.01
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Regulation FD Disclosure
|
ITEM 8.01
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Other Events
|
ITEM 9.01
|
Financial Statements and Exhibits
|
SIGNATURES
|
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EXHIBITS
|
Exhibit No.
|
Description
|
10.6
|
Agreement and Plan of Merger by and among MeeMee Media Inc, All Screens Media LLC.
and the Holders of the Membership Interests of All Screens Media LLC dated May 19, 2015.
|
10.7
|
MeeMee Media Inc. 2015 Stock Option / Stock Issuance Plan
|
10.8
|
Employment Agreement dated May 19, 2015 with Denis Barry (filed as Exhibit A to
the Agreement and Plan of Merger filed as Exhibit 10.6)
|
10.9
|
Employment Agreement dated May 19, 2015 with Peter Heumiller (filed as Exhibit A to
the Agreement and Plan of Merger filed as Exhibit 10.6)
|
10.10
|
Employment Agreement dated May 19, 2015 with Howard Sichel (filed as Exhibit A to
the Agreement and Plan of Merger filed as Exhibit 10.6)
|
10.11
|
Promissory Note dated May 19, 2015 with All Screens Media LLC (filed as Exhibit C to
the Agreement and Plan of Merger filed as Exhibit 10.6)
|
10.12
|
Security Agreement dated May 19, 2015 with All Screens Media LLC (filed as Exhibit D to
the Agreement and Plan of Merger filed as Exhibit 10.6)
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99.1
|
Press release issued May 21, 2015
|
|
MEEMEE MEDIA INC.
|
|
|
May 22, 2015
|
|
|
|
|
/s/
MARTIN DOANE
|
|
Martin Doane
|
|
President and Chief Financial Officer
|
(a)
|
Cancellation and Conversion of ASM Interests
. On the Merger Date, all ASM Interests shall, in the aggregate, be converted into Ten Million (10,000,000) fully paid and non-assessable shares of MeeMee Common Stock, it being understood that all ASM Interests shall thereby be canceled and retired and shall cease to exist, and the ASM Members shall only have the right to receive and divide amongst themselves such shares of MeeMee Common Stock in consideration for such cancellation.
|
(b)
|
Conversion of MergerSub Membership Interests
. On the Merger Date, by virtue of the Merger and without any further action on the part of the Parties, all membership interests in the MergerSub shall be converted into and become one validly issued interest in the Surviving Company and shall constitute the only outstanding interest in the Surviving Company.
|
(c)
|
Issuance of MeeMee Options.
At Closing
,
MeeMee shall issue and deliver the MeeMee Three Million (3,000,000) options to ASM at the per share price existing as of the Effective Date and set forth on
Schedule II
(the "MeeMee Options")
.
The MeeMee Options shall be exercised in accordance with the terms, conditions, rights and preferences set forth in the form of Stock Option Agreement to be negotiated and finalized prior to Closing. It is the intent of the Parties that the MeeMee Options be "incentive stock options" as defined in Section 422 of the Code, provided same is permitted by law. Furthermore, it is the intent of the Parties that incentive stock options, if any, shall
|
(d)
|
Incentive Bonus Stock
. MeeMee shall allocate an additional Five Million (5,000,000) shares of MeeMee Common Stock as incentive bonus stock ("Incentive Bonus Stock") based on 12- and 24-month EBITDA thresholds (the "Incentive Stock Thresholds"). The Parties shall negotiate in good faith and finalize the Incentive Stock Thresholds and other conditions for issuance of the Incentive Bonus Stock prior to Closing.
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(c)
|
Each ASM Member has no Knowledge of any fact or circumstance that would render any Intellectual Property Rights invalid or unenforceable.
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(a)
|
the subject of any bankruptcy petition filed by or against any business of which he was a general partner or executive officer either at the time of the bankruptcy or within two years prior to that time;
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(b)
|
the subject of any conviction in a criminal proceeding or being subject to a pending criminal proceeding (excluding traffic violations and other minor offenses);
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(c)
|
the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining, barring, suspending or otherwise limiting his involvement in any type of business, securities or banking activities; or
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(d)
|
found by a court of competent jurisdiction (in a civil action), the Commission or the Commodity Futures Trading Commission to have violated a federal or state securities or commodities law, and the judgment has not been reversed, suspended, or vacated.
|
(b)
|
Form 8-K
. The Final Draft Form 8-K has been prepared and is capable of being filed immediately after the Closing (or the immediate next Business Day thereafter).
|
(b)
|
MeeMee has extinguished any unpaid or deferred compensation accrued to any director or officer of MeeMee prior to the Closing Date (which for the purposes of clarification shall not include any loans by any director to MeeMee);
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(c)
|
The representations and warranties of MeeMee set out in this Agreement are true and correct in all material respects on and as of the Closing Date as though such representations and warranties were made at and as of such time;
|
(d)
|
(f)
|
ASM is satisfied, in its reasonable discretion, with the
MeeMee Disclosure Schedule
;
|
(g)
|
MeeMee has entered into employment agreements with each of Peter Heumiller, Howard Sichel, and Denis Barry to take effect upon the Closing Date;
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(h)
|
MeeMee has issued MeeMee Options pursuant to Incentive Stock Option Agreement (to be negotiated and finalized prior to Closing) to each of the individuals listed on
Schedule I
at the exercise price and in the amount set forth on
Schedule I;
and
|
(i)
|
the Parties have finalized the Incentive Stock Thresholds and agreed to conditions for the issuance of the Incentive Bonus Stock described in Section 2.1(d).
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(i)
|
The ASM Financial Statements;
|
(iv)
|
(d)
|
All consents, approvals, permits, authorizations and orders required to be obtained from, and all registrations, filings and notices required to be made with or given to, any Regulatory Authority or Person, and any matter requiring consent or mutual agreement of MeeMee as provided in this Agreement, to consummate the transactions contemplated under this Agreement are obtained;
|
(e)
|
There is no Material Adverse Effect on the business, condition or prospects of ASM (including the ASM Subsidiaries) until the Closing Date;
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(f)
|
MeeMee is satisfied, in its reasonable discretion, with the
ASM Disclosure Schedule
; and
|
(c)
|
by ASM if the Merger shall not have been consummated on or before the six (6) month anniversary of the Effective Date or if any of the conditions to the Closing set forth in
Section 7.3 above
shall have become incapable of fulfillment by the six (6) month anniversary of the Effective Date and shall not have been waived in writing by ASM; provided, however, that the right to terminate this Agreement under this
Section 9.1
(b)
shall not be available to ASM if (i) ASM's or the ASM Members' action or failure to act has been a principal cause of or resulted in the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement; or (ii) the ASM Financial Statements have not been delivered to MeeMee;
|
(d)
|
by MeeMee, if the Merger shall not have been consummated on or before the six (6) month anniversary of the Effective Date or if any of the conditions to the Closing set forth in
Section 7.2 above
shall have become incapable of fulfillment by the six (6) month anniversary of the Effective Date and shall not have been waived in writing by MeeMee; provided, however, that the right to terminate this Agreement under this
Section 9.1
(d)
shall not be available to MeeMee if its action or failure to act has been a principal cause of or resulted in the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement; or
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(a)
|
MeeMee (in this context, the "
Indemnifying Party
") shall indemnify and hold harmless ASM and the ASM Members (in this context an "
Indemnified Party
"), from and against any and all demands, claims, actions or causes of action, judgments, assessments, losses, liabilities, damages or penalties and reasonable attorneys' fees and related disbursements (collectively, "
Claims
") suffered by such Indemnified Party resulting from or arising out of (i) any inaccuracy in or breach of any of the representations or warranties made by MeeMee at the time they were made and, except for those representations and warranties that specify a particular date or time (which need only be true and correct as of such date or time), on and as of the applicable Closing Date; (ii) any breach or nonfulfillment of any covenants or agreements made by MeeMee in this Agreement; or (iii) any misrepresentation made by MeeMee in this Agreement or any other document delivered pursuant to this Agreement or in connection with consummating the Merger.
|
(b)
|
ASM Members (in this context, the "
Indemnifying Party
") shall indemnify and hold harmless MeeMee and its officers and directors (in this context an "
Indemnified Party
"), from and against any and all Claims suffered by such Indemnified Party resulting from or arising out of (i) any inaccuracy in or breach of any of the representations or warranties made by ASM or an ASM Member at the time they were made and, except for representations and warranties that specify a particular date or time (which need only be true and correct as of such date or time), on and as of the applicable Closing Date, (ii) any breach or nonfulfillment of any covenants or agreements made by ASM or an ASM Member; and (iii) any misrepresentation made by ASM or an ASM Member in this Agreement or any other document delivered pursuant to this Agreement or in connection with consummating the Merger.
|
(c)
|
For Claims under this Article IX, neither MeeMee nor the ASM Members shall have any liability for Claims unless and until all Claims made by the other parties' Indemnified Persons aggregate at least Fifty Thousand Dollars ($50,000) (the "
Basket
"), after which the other parties' Indemnified Persons shall be entitled to indemnity for the Claims over the amount of the Basket.
|
(a)
|
Upon obtaining knowledge of any Claim by a third party which has given rise to, or is expected to give rise to, a claim for indemnification hereunder (a "
Third Party Claim
"), the Indemnified Party shall give written notice of such Third Party Claim ("
Notice of Claim
") to the Indemnifying Party, specifying in reasonable detail such information as the Indemnified Party may have with respect to such indemnification claim (including copies of any summons,
|
(b)
|
The Indemnifying Party shall have ten (10) Business Days after the date on which Notice of Claim is given to the Indemnified Party to notify Indemnified Party in writing of its election to defend such Claim on behalf of the Indemnified Party. If the Indemnifying Party elects to defend such Third Party Claim, the Indemnified Party shall make available to the Indemnifying Party and its agents and representatives all records and other materials that are reasonably required in the defense of such Third Party Claim and shall otherwise cooperate with and assist the Indemnifying Party in the defense of such Third Party Claim, and so long as the Indemnifying Party is defending such Third Party Claim in good faith, the Indemnified Party shall not pay, settle or compromise such Third Party Claim. If the Indemnifying Party elects to defend such Third Party Claim, the Indemnified Party shall have the right to participate in the defense thereof at the Indemnified Party's sole expense; provided, however, that in the event that the Indemnified Party reasonably determines that representation by the Indemnifying Party's counsel of both the Indemnifying and Indemnified Party could reasonably be expected to present counsel with a conflict of interest, then the Indemnified Party may employ separate counsel and the Indemnifying Party shall pay the fees and expenses of such counsel incurred in the defense of such Third Party Claim and any counterclaims asserted in response thereto. If the Indemnifying Party does not elect to defend the Third Party Claim, the Indemnified Party shall have the right, in addition to any other right or remedy it may have, at the Indemnifying Party's expense, to defend the Third Party Claim; provided, however, that (i) the Indemnified Party shall not have any obligation to participate in the defense of, or to defend, the Third Party Claim; (ii) the Indemnified Party's defense of or its participation in the defense of any the Third Party Claim shall not in any way diminish or lessen the obligations of the Indemnifying Party to indemnify the Indemnified Party as set forth in this Article IX; and (iii) the Indemnified Party may not settle any Third Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
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(c)
|
Notwithstanding anything contained in Section 9.5(b) above, the Indemnifying Party and all Indemnified Parties shall cooperate fully in all aspects of any investigation, defense, pre-trial activities, trial, compromise, settlement or discharge of any Third Party Claim in respect of which indemnity is sought pursuant to this Article IX, including, but not limited to, by providing each other with reasonable access to employees and officers (including as witnesses) and other information, with the costs of out-of-pocket costs or expenses of such cooperation to be borne by the Indemnifying Party.
|
If to MeeMee
:
|
with a copy to
:
|
MeeMee Media Inc.
33 Willow Avenue
Toronto, ON M4E 3K1 Attn: Martin J. Doane, Executive Chairman martin.doane@ubequitycapital.com Phone (310) 460-9215 |
Steven J. Davis, Esq.
Steven James Davis, A Professional Corporation
1042 N. El Camino Real, B-261 Encinitas, California 92024-1322 steve@sjdavislaw.com Phone (619) 788-2383 FAX (858) 367-8138 |
If to ASM
:
|
with a copy to
:
|
All Screens Media, LLC
|
Gordon E. R. Troy, Esq.
|
631 N. Stephanie St., Suite 284
Henderson, NV 89014
Attn: Peter Heumiller, Managing Member
peter.heumiller@allscreensmedia.com
Phone (732) 299-6261 |
5203 Shelburne Rd.
Shelburne, VT 05482
Phone (802) 881-0640
FAX (646) 588-1962
gtroy@webtm.com |
(a)
|
(b)
|
"
Confidential Information
" means the existence and contents of this Agreement and the Schedules and Exhibits hereto, and all proprietary technical, economic, environmental, operational, financial and/or business information or material of one party which, prior to or following the Effective Date, has been disclosed by ASM, on the one hand, or MeeMee, on the other hand, in written, oral (including by recording), electronic, or visual form to, or otherwise has come into the possession of, the other;
|
(c)
|
(d)
|
(e)
|
(h)
|
"
Legal Requirements
" means any applicable federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, order, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity.
|
(j)
|
(k)
|
(l)
|
(m)
|
"
Percentage Interest"
means
with respect to the ASM Interests, the quotient (stated as a percentage) of the Interest of each ASM Member divided by total Interests of all ASM Members.
|
(n)
|
"
Person
" means any individual, corporation, partnership, association, trust or other entity or organization, including a governmental or political subdivision or any agency or institution thereof;
|
(p)
|
MeeMee Media, Inc.
|
All Screens Media, LLC
|
|||
By:
|
/s/ Martin Doane
|
By:
|
/s/ Peter Heumiller
|
|
Name:
|
Martin Doane
|
Name:
|
Peter Heumiller
|
|
Title:
|
Executive Chairman
|
Title:
|
Managing Member
|
|
Date:
|
May 19, 2015
|
Date:
|
May 19, 2015
|
Peter Heumiller
|
Howard Sichel
|
|||
By:
|
/s/ Peter Heumiller
|
By:
|
/s/ Howard Sichel
|
|
Name:
|
Peter Heumiller
|
Name:
|
Howard Sichel
|
|
Title:
|
Holder of ASM Membership Interest
|
Title:
|
Holder of ASM Membership Interest
|
|
Date:
|
May 19, 2015
|
Date:
|
May 19, 2015
|
Denis Barry
|
Andrew Karp
|
|||
By:
|
/s/ Denis Barry
|
By:
|
/s/ Andrew Karp
|
|
Name:
|
Denis Barry
|
Name:
|
Andrew Karp
|
|
Title:
|
Holder of ASM Membership Interest
|
Title:
|
Holder of ASM Membership Interest
|
|
Date:
|
May 20, 2015
|
Date:
|
May 21, 2015
|
Name of
ASM Interest Holder |
Address of ASM
Interest Holder
|
Percentage Interest
in ASM
|
Howard Sichel
|
74 Bayview Avenue, Port
Washington, NY 11059
|
37%
|
Peter Heumiller
|
331 John Henry Drive,
Henderson, NV 89014
|
37%
|
Denis Barry
|
62 Middle Patent Road,
Armonk, NY 10504
|
23%
|
Andrew Karp
|
12 Troy Lane, Bedford NY
10506
|
3%
|
MeeMee Options
|
|||
MeeMee
Option Grantee
|
State of Residence of
MeeMee Option
Grantee
|
Number of
Options or
Warrants
|
Exercise Price
|
Howard Sichel
|
New York
|
1,110,000
|
The price as of the Effective Date
|
Peter Heumiller
|
Nevada
|
1,110,000
|
The price as of the Effective Date
|
Denis Barry
|
New York
|
690,000
|
The price as of the Effective Date
|
Andrew Karp
|
New York
|
90,000
|
The price as of the Effective Date
|
1.
|
Preamble.
|
a.
|
On even date hereof, MEEMEE has entered into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which "MergerSub" (as defined in the Merger Agreement) shall merge with and into All Screens Media, LLC (ASM), ASM shall be the surviving company and become a direct wholly-owned subsidiary of MEEMEE, and BARRY shall become Executive Vice President of MEEMEE.
|
b.
|
It is the intention of the Parties that this Agreement shall take effect immediately upon the consummation of the Merger on the "Merger Date" (as defined in the Merger Agreement) as provided in Section 1.6(b) of the Merger Agreement.
|
c.
|
The execution of this Agreement by the Parties is a condition precedent to consummation of the Merger as stated in Section 7.2(g) of the Merger Agreement.
|
a.
|
Acceptance of Employment
. MEEMEE hereby employs EMPLOYEE and EMPLOYEE hereby accepts employment by MEEMEE upon the terms and conditions set forth in this Agreement.
|
b.
|
Term
. The term of this Agreement ("Term") shall commence upon the Merger Date and expire three (3) years from the anniversary of the Merger Date, provided, however, that the Term shall renew automatically for two-year periods unless one Party notifies the other in writing at least ninety (90) days prior to the expiration of the Term that it does not desire to renew the Agreement.
|
c.
|
Position and Duties
.
|
ii.
|
BARRY shall report to the CEO of MEEMEE.
|
iii.
|
EMPLOYEE shall:
|
A.
|
primarily perform his duties at such locations as EMPLOYEE determines in consultation with the CEO.
|
B.
|
use his best efforts to promote the interests of MEEMEE and its affiliates and subsidiaries throughout the world ("collectively, MEEMEE Affiliates") and devote his business time and attention to his employment under this Agreement. For avoidance of doubt, "MEEMEE Affiliates" is deemed to include any entity in which MEEMEE has share(s), membership interest(s), or other financial or equitable interest(s), either directly or through another MEEMEE Affiliate.
|
iv.
|
EMPLOYEE shall not, without prior written authorization from the CEO and / or Board or Directors (the" Board"), engage in any other business activities that would interfere with the performance of his position and duties as stated in paragraph
2.c.i above
, provided, however, that EMPLOYEE may, without approval from the CEO and / or Board, (I) serve as a member of boards of other corporations or organizations that do not compete with MEEMEE, (II) engage or participate in charitable, religious or civic activities, (III) manage any personal investments, and (IV) serve as an executor, trustee or in other similar fidiciary capacity, so long as, in each case, such activities do not interfere with the performance of his position and duties as stated in paragraph
2.c.i above
.
|
3.
|
Compensation
.
Meemee shall pay employee and employee hereby agrees to accept, as compensation for all services rendered under this agreement and for employee's covenants of confidentiality, non-competition, non-solicitation and non-disparagement as stated in paragraphs
5
,
7
and
8 below
, respectively, the compensation and benefits described in appendix B hereto ("base salary and benefits").
|
a.
|
Events of Termination
. Notwithstanding anything contained in paragraph
2 above
, the Term shall terminate:
|
i.
|
upon Employee's death;
|
ii.
|
for Cause (as defined in paragraph
4.c below
) immediately upon notice from MEEMEE to EMPLOYEE or at such later date as such notice may specify;
|
iii.
|
without Cause upon notice (as set forth in paragraph
4.d below
); or
|
iv.
|
upon EMPLOYEE's resignation or other cressation by EMPLOYEE of his employment (other than as provided in clauses 4a.i. through 4a.iii above).
|
c.
|
Termination for Cause
. MEEMEE may terminate EMPLOYEE's employment at any time for Cause upon written notice to EMPLOYEE. As used in this Agreement, "Cause" means:
|
i.
|
a material breach of this Agreement or any material written Company policy which cannot reasonably be cured within thirty (30) days of EMPLOYEE being notified of such breach;
|
ii.
|
any act of fraud, misappropriation or embezzlement involving MEEMEE or its assets;
|
iii.
|
Employee's insubordination or failure to follow the directions of the CEO, which has continued after at least two (2) prior written warnings by the CEO;
|
iv.
|
a conviction or plea of guilty to any felony, or any misdemeanor involving dishonesty, financial wrongdoing or moral turpitude.
|
d.
|
Termination without Cause
. MEEMEE may terminate EMPLOYEE's employment at any time, for any reason whatsoever or no reason at all, effective upon the date designated by MEEMEE upon thirty (30) days' prior written notice to EMPLOYEE. In the event of Termination without Cause, EMPLOYEE shall be paid all accrued but unpaid (as of the effective date of such termination) Base Salary and Benefits. In addition, provided that EMPLOYEE signs and does not revoke a separation agreement and release in substantially the form attached hereto as Appendix C, EMPLOYEE shall be entitled to receive (i) his full Base Salary and Benefits (including but not limited to any Stock Options earned and Bonuses) for six (6) months from the termination date or the remainder of the then-current calendar year, whichever is longer; (ii) health insurance coverage for a period of one (1) year from the effective date of such termination; and (iii) at such time as the release becomes non-revocable, and in accordance with MEEMEE's then-current payroll schedule, his Base Salary through to the end of the Term, provided, however, that any Base Salary accrued but not paid prior to the date on which the release became non-revocable shall be payable immediately on such date. Except as aforesaid, MEEMEE shall have no further liability or obligation to EMPLOYEE by reason of termination without Cause. Notwithstanding any of the foregoing, if EMPLOYEE is terminated by MeeMee without cause within eighteen (18) months of the Merger Date, EMPLOYEE shall be entitled to receive all of the benefits specified in subparagraphs (i) through (iii) above and the Separation Agreement, but EMPLOYEE shall not be bound by paragraph
7.a.i below
(non-competition).
|
e.
|
Voluntary Termination by Employee
. EMPLOYEE may terminate his employment at any time for any reason, effective upon the date designated by EMPLOYEE but upon no fewer than ninety days (90) prior written notice to MEEMEE. In the event of such termination, EMPLOYEE shall be entitled to receive all accrued but unpaid (as of the effective date of such termination) Base Salary and Benefits. All Base Salary and Benefits shall cease at the time of
|
a.
|
Definition
. As used in this Agreement, "Confidential Information" means all trade secrets, confidential and proprietary information, and knowledge or data, including but not limited to business plans, client lists and client information, related to MEEMEE and MEEMEE Affiliates, and the business of any of the foregoing, which EMPLOYEE learned, developed obtained during the course of his employment, and which is not or does not hereafter become public knowledge (other than by acts or omissions by EMPLOYEE).
|
b.
|
Degree of Care
. EMPLOYEE shall at all times protect Confidential Information from being disclosed using the appropriate degree of care for the particular Confidential Information in question, but not less than a reasonable degree of care.
|
c.
|
Non-Disclosure
. EMPLOYEE shall not, without the prior written consent of MEEMEE or as may be required by Jaw or legal process, communicate or divulge any Confidential Information to anyone other than MEEMEE and those within MEEMEE who have a need to know (including but not limited to the Board).
|
d.
|
Effect of Termination
. Termination of the the Term, however caused, shall have no effect on EMPLOYEE's obligations under this paragraph
5
. Upon termination of the Term or, if earlier, upon request by the Board, EMPLOYEE shall hand over or return all Confidentail Information to MEEMEE regardless of the form or format in which such Confidential Information exists, and shall delete from all personal devices all copies of Confidential Information thereon.
|
a.
|
MEEMEE is and shall be the owner of all rights in and to EMPLOYEE's work, work product, deliverables, material and information created, whether alone or with others, in the course of EMPLOYEE's employment, including but not limited to the proceeds and all Intellectual Property Rights (as hereinafter defined) contained therein or derived therefrom ("Work Product") free and clear of any claim of any kind or nature by EMPLOYEE and anyone claiming through EMPLOYEE. As used in this Agreement, "Intellectual Property Rights" means any and all copyrights, rights in trademarks, service marks, trade names, patents, mask works and industrial design, and all other intangible property rights of an intellectual nature.
|
b.
|
All copyrightable content of Work Product shall be deemed "work made for hire" under the United States Copyright Act, as amended.
|
c.
|
If, for any reason, Work Product is, under the law of any jurisdiction not to belong solely to MEEMEE or constitute "work made for hire" (as applicable), EMPLOYEE hereby irrevocably and exclusively assigns to MEEMEE all Intellectual Property Rights, title and interest in and to such Work Product together with the right to collect any and all proceeds that would otherwise be payable to EMPLOYEE in respect thereof. EMPLOYEE shall fully cooperate with MEEMEE to the extent reasonably required by and at no cost to MEEMEE, to effect such assignment.
|
a.
|
i.
|
directly or indirectly engage in (as a principal, partner, director, officer, agent, employee, consultant, owner, independent contractor or otherwise, with or without compensation), or hold a financial interest in any person or entity that carries on or plans to carry on business activities directly in Competition (as hereinafter defined) with MEEMEE and MEEMEE Affiliates, provided, however, that it shall not be a violationof this paragraph
7.a.i
for EMPLOYEE to become a registered or beneficial owner of up to one percent (1%) of any class of the capital stock of a competing corporation registered under the Securities Exchange Act of 1934, as amended, provided that EMPLOYEE does not actively participate in the business of such corporation until such time as the Restriction Period expires. As used in this Agreement, "Competition" means engagement in developing (for any person other than MEEMEE or MEEMEE Affiliates pursuant to a written agreement signed by MEEMEE or a MEEMEE Affiliate prior to EMPLOYEE's engagement in such development) or marketing, promotion, offering, sale or other exploitation of online digital content for consumers or professionals related to instruction in or practice of exercise modalities and fitness methods, physical therapy, and/or health, fitness and lifestyle regimes.
|
ii.
|
contact, solicit, call on or otherwise deal in any way with any licensor, partner, co-venturer, supplier, vendor, contractor or Customer (as hereinafter defined) of MEEMEE or MEEMEE Affiliates for a purpose that is in Competition with the business of MEEMEE or MEEMEE Affiliates. As used in this Agreement, "Customer" means any entity or person that EMPLOYEE knows or reasonably should know is or has been a customer of MEEMEE or MEEMEE Affiliates at any time within the preceding twelve (12) months;
|
iii.
|
influence or attempt to influence any licensor, partner, co-venturer, supplier, vendor, contractor or Customer of MEEMEE or MEEMEE Affiliates to terminate or modify any written or oral agreement or course of dealing with MEEMEE or MEEMEE Affiliates; and
|
iv.
|
influence or attempt to influence, or arrange to have another person or entity influence or attempt to influence, any person either to terminate or modify any employment, consulting, director, agency or other arrangement with MEEMEE or MEEMEE
|
b.
|
EMPLOYEE warrants and represents in light of the benefits and promises set forth in this Agreement, and the nature of the business of MEEMEE and MEEMEE Affiliates, that the restrictions set forth in paragraph
7.a above
(the "Restrictions") are fair and reasonable as to duration and scope and are reasonably intended to protect the business interests of MEEMEE and MEEMEE Affiliates. Accordingly, EMPLOYEE and MEEMEE convenant and agree that the Restrictions are intended by them to be enforced to the fullest extent permitted under applicable law. If, in any proceeding, a court or mediator refuses to enforce the Restrictions according to their terms, then such court or mediator shall be authorized to modify or limit the scope of the Restrictions in a manner consistent with law and equity.
|
9.
|
Remedies For Certain Breaches
. If employee breaches or threatens to commit a breach of any of its obligations under paragraphs
5
through
8 above
, of if MeeMee breaches or threatens to commit a breach of its obligations under paragraph
8 above
, then MeeMee or employee, as applicable, shall have the following rights and remedies, each of which shall be in addition to, and not in lieu of, any other rights and remedies available to them at law or in equity:
|
a.
|
For breaches or threatened breaches of any obligations contained paragraphs
5
through
8 above
, specific performance without the need to post a bond or other surety or to prove that money damages would not provide an adequate remedy, it being acknowledged and agreed by the Parties that any such breach or threatened breach will cause irreparable harm to the affected Party; and
|
b.
|
For breaches or threatened breaches of any obligations contained paragraphs
5
through
7 above
, the right (A) to seek an accounting from EMPLOYEE of all compensation, profits, monies or other benefits derived or received by EMPLOYEE or any third party as the result of EMPLOYEE's breach or threatened breach; and (B) indemnification of MEEMEE and MEEMEE Affiliates against any and all losses, damages (including special and consequential damages), costs and expenses, including reasonable attorneys' fees, court costs and legal expenses, that may be incurred by them and which result from or arise out of any such breach of threatened breach.
|
10.
|
Notices
.
All notices hereunder shall be sufficiently given for all purposes hereunder if in writing and delivered personally, sent by documented overnight delivery service or, to the extent receipt is confirmed, by telecopy, telefax, email or other electronic transmission to the appropriate address or number as set forth below at the addresses provided below (or any other address duly notified by a party hereto pursuant to the provisions of this paragraph
10
).
|
If to MEEMEE
:
|
with a copy to
:
|
MeeMee Media Inc.
33 Willow Avenue
Toronto, ON M4E 3K1 Attn: Martin J. Doane, Executive Chairman martin.doane@ubequitycapital.com Phone: (416) 903 6691 |
Steven J. Davis, Esq.
Steven James Davis, A Professional Corporation
1042 N. El Camino Real, B-261 Encinitas, California 92024-1322 steve@sjdavislaw.com Phone: (619) 788-2383 Fax: (858) 367-8138 |
If to EMPLOYEE
:
|
with a copy to
:
|
Denis Barry
62 Middle Patent Road
Armonk, NY 10504 denis.barry@allscreensmedia.com Phone: (917) 846-6215 |
Gordon E. R. Troy, Esq.
5203 Shelburne Rd.
Shelburne, VT 05482
Email: gtroy@webtm.com Phone: (802) 881-0640
Fax: (646) 588-1962
|
11.
|
Miscellaneous.
|
a.
|
Amendments in Writing
. No amendment to or modification of this Agreement or any of its terms and conditions shall be valid or binding on the Parties unless made in writing and signed by a duly authorized representative of both Parties.
|
b.
|
Assignment
. Neither Party may transfer or assign this Agreement or any of its rights hereunder, whether temporarily or permanently, voluntarily or involuntarily, and whether by merger (where the transferring or assigning Party is the disappearing corporation or entity), consolidation, dissolution, operation of law or any other manner, except to an entity acquiring all or substantially all of the Assignor's assets. The non-assigning Party shall have the right to void any purported assignment in violation of this paragraph
11.b
. The foregoing right of the non-assigning Party shall be without prejudice to any other claim the non-assigning Party may have for damages or equitable relief. OR
|
c.
|
Assignment
. EMPLOYEE acknowledges and agrees that the services to be rendered by him and unique and personal. Accordingly, he may not assign or delegate any of his rights or obligations under this Agreement. Nothing in this Agreement shall preclude MEEMEE from consolidating or merging with or into, or transferring all or substantially all of its assets to another entity, provided that entity assumes this Agreement and all obligations and undertakings of MEEMEE hereunder.
|
d.
|
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of MEEMEE and its successors, assigns and representatives, and shall be binding upon EMPLOYEE and his heirs, executors and legal representatives.
|
e.
|
Cumulative Remedies
. All rights and remedies of the Parties, whether at law or in equity, shall be cumulative and none of them shall be in limitation of any other right or remedy.
|
f.
|
Effective Date
. If no date is entered on the first line of this Agreement, then the Effective Date shall be the date of signing of the last Party to sign this Agreement.
|
g.
|
Enforceability/Severability
. If any provision of this Agreement shall be held void, voidable, invalid or inoperative, the remaining provisions of this Agreement shall remain in full force and effect. However, if such void, voidable, invalid or inoperative provision is a material term or condition of this Agreement, the Parties shall supply a substitute provision, negotiated in good faith, which comes closest to their original intent.
|
h.
|
Entire Agreement
. This Agreement contains the entire understanding between the Parties relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations and inducements with respect to said subject matter.
|
j.
|
Headings
. The paragraph headings in this Agreement are solely for the convenience of the Parties and have no legal or contractual significance.
|
k.
|
Presumptions
. This Agreement shall be construed without regard to any presumption or other rule permitting construction against the Party causing this Agreement to be drafted and shall not be construed more strictly in favor of or against either Party.
|
l.
|
Prior Agreements
. EMPLOYEE represents to MEEMEE that: (a) his execution of this Agreement and provision of services hereunder shall not constitute a breach of any contract, agreement or understanding, oral or written, to which he is a party or by which he is bound; (b) he is free and able to execute this Agreement and to provide services to MEEMEE, and (c) there are no confidentiality commitments or other employment restrictions that EMPLOYEE has with any other employer, person or entity that he has not disclosed to MEEMEE.
|
m.
|
Rights of Third Parties
. This Agreement shall not be deemed to give any right or remedy to any third party whatsoever.
|
n.
|
Signature and Counterparts
. This Agreement may be signed in counterparts and transmitted by one Party to the other via email or FAX. Said counterparts, taken together, shall constitute one agreement. If this Agreement is signed in counterparts, neither Party shall be bound by this Agreement until both Parties have duly executed a counterpart hereof.
|
o.
|
Survival
. Any provision of this Agreement which contemplates performance, exercise of any right or fulfillment of any obligation subsequent to expiration or termination of the Term, including but not limited to those contained in paragraphs
4
through
9 above
, together with any and all provisions related to contract interpretation and the Parties' remedies, shall survive such expiration or termination.
|
p.
|
Waiver
. No waiver shall be effective unless in writing and signed by an authorized representative of the Party against whom enforcement of the waiver is sought. Neither the failure of either Party to exercise any right, nor the waiver of any default or breach by the other Party, shall constitute a waiver of such right or a waiver of such default or breach with respect to any subsequent default or breach.
|
MeeMee Media, Inc.
|
Denis Barry
|
|||
By:
|
/s/ Martin Doane
|
By:
|
/s/ Denis Barry
|
|
Name:
|
Martin Doane
|
Name:
|
Denis Barry
|
|
Title:
|
Executive Chairman
|
Date:
|
May 19, 2015
|
|
Date:
|
May 19, 2015
|
·
|
Existing and emerging Exercise and Wellness modalities, brands and personalities
|
·
|
Fitness product sourcing and education
|
·
|
Professional trainer certification and continuing education
|
·
|
Physical Therapist education and products
|
·
|
Identifying and presenting new global fitness and wellness business opportunities to the CEO.
|
·
|
Participating in the negotiation of fitness and wellness partnerships and project deals.
|
·
|
Assisting in the preparation and deployment of comprehensive new business plans for greenlit new projects and partnerships.
|
·
|
Recruiting new Company talent as needed for Fitness / Wellness projects
|
·
|
Assisting in / overseeing the development of certification and education courses and materials.
|
·
|
Promoting the Company's Fitness and Wellness business initiatives through favorable publicity and industry conference engagements
|
·
|
Additional responsibilities as determined by the CEO and Board.
|
1.
|
Buccell, LLC investments into bodyART Media and Global Screens Media (Staby and IO Ball products and media). Negotiated. $320K. Anticipated closing 5/1/2015
|
2.
|
Speedball Media. Additional investment into expanding JV business. In discussions. $225K. Projected date: late May 2015.
|
3.
|
Renaissance Fitness. Developing a new fitness media workout brand around owner Danielle. Approx. $200 to $250K. Projected date: June 2015.
|
4.
|
DeepWork Fitness modality media partnership. Approximately $150K. Projected date: May / June 2015.
|
5.
|
Perform Better Europe / Christian Jund Publishing. Potential partnership around Miracle Ball Method project and bodyART Xtreme projects using Perform Better projects. Early discussions. Approximately $100K to $150K June / July 2105.
|
6.
|
TV Atividades JV. Being discussed between Comcast, TV Globo and ASM. Early Stage. Comcast would contribute existing kid's activity library HEUMILLER created there, and TV Globo would fund repurposing library, new productions and distribution.
|
7.
|
Fitness First / NewMoove.com . Early stage partnership discussion about co-producing and co-managing professional and consumer subscription sites in German language markets.
|
8.
|
NuFit Corp. Early stage discussion about producing online education for the Company's revolutionary NUBELLS products. Also discussing ASM becoming exclusive Brazilian distributor.
|
9.
|
Bodies in Balance. Acquisition of digital European Fitness programming channel. Current revenues of $750K. NOTE: This would be an MEEMEE/ASM acquisition requiring a stock grant and working capital funding. ASM would therefore not receive a bonus for this project. However, this acquisition will assist ASM in operating and growing other PIP projects.
|
·
|
As of the first day of EMPLOYEE's employment, MEEMEE shall pay One Hundred Percent (100%) of the reasonable cost of private health insurance for Employee and his spouse, provided, however, that any premiums above $1,000.00 / month shall be subject to the sole discretion of the Board; provided, however, that if MEEMEE establishes a company health insurance plan, then EMPLOYEE shall participate in such plan in lieu of MEEMEE paying his private health insurance premiums.
|
·
|
As of the first day of EMPLOYEE's employment, MEEMEE shall pay Seventy-Five Percent (75%) of the reasonable cost of private dental coverage and vision coverage for Employee to a maximum of $250 / month, provided, however, that if MEEMEE establishes a company dental and/or visual coverage plan, then EMPLOYEE shall participate in such plan in lieu of MEEMEE paying his private premiums.
|
·
|
MEEMEE shall pay 100% of the premiums for life insurance in the amount of $150,000 or one times (1x) EMPLOYEE's then-existing Base Salary, whichever is greater.
|
·
|
If MEEMEE establishes a disability insurance plan, MEEMEE will pay 100% of EMPLOYEE's premiums for short-term and/or long-term disability coverage, but EMPLOYEE will be responsible for paying the applicable taxes on the premium payments.
|
·
|
If MEEMEE establishes a 401(K) Program, EMPLOYEE will be eligible to participate subject to the terms of that program. MEEMEE will match EMPLOYEE's contributions dollar-for-dollar up to four percent (4%) of Employee's then-existing Base Salary, not inclusive of any bonuses.
|
·
|
MEEMEE shall provide EMPLOYEE with an automobile allowance of Three Hundred Dollars ($300.00) per month.
|
·
|
MEEMEE shall provide EMPLOYEE with a cable, internet, phone, cell phone allowance of Three Hundred Dollars ($300.00) per month.
|
·
|
EMPLOYEE is eligible to take the following paid time off per calendar year: twenty (20) vacation days ("PTO"), ten (10) holidays generally observed by MEEMEE in the United States in accordance with the holiday policy established by MEEMEE from time to time, seven (7) sick days and three (3) bereavement days. Unused time off for holidays, sick days and bereavement days may not be carried over into the following year. Unused vacation days may be carried over to the following year, provided, however, that EMPLOYEE may not accrue more than twenty (20) days of unused vacation days without written authorization of MEEMEE. If EMPLOYEE accrues twenty (20) unused vacation days, then he may not earn any additional vacation days until his "bank" of PTO falls below twenty. PTO, sick and bereavement will be pro-rated during EMPLOYEE's first year of employment. Vacation days are earned and accrued on a quarterly basis, with five vacation days accruing for each quarter, but the foregoing shall not prevent EMPLOYEE from using vacation days that will accrue during the same calendar year assuming EMPLOYEE's continued employment. All vacation days shall be taken on no less than thirty (30) days written notice to the Board and subject to the Board's approval, not to be unreasonably withheld.
|
·
|
EMPLOYEE shall be reimbursed for all normal items of travel, entertainment and miscellaneous expenses reasonably incurred by him on behalf of MEEMEE, provided that such expenses are documented and submitted to MEEMEE in accordance with the reimbursement policies established by MEEMEE from time to time.
|
1.
|
Preamble.
|
a.
|
On even date hereof, MEEMEE has entered into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which "MergerSub" (as defined in the Merger Agreement) shall merge with and into All Screens Media, LLC (ASM), ASM shall be the surviving company and become a direct wholly-owned subsidiary of MEEMEE, and HEUMILLER shall become Chief Executive Officer and a member of the Board of MEEMEE.
|
b.
|
It is the intention of the Parties that this Agreement shall take effect immediately upon the consummation of the Merger on the "Merger Date" (as defined in the Merger Agreement) as provided in Section 1.6(b) of the Merger Agreement.
|
c.
|
The execution of this Agreement by the Parties is a condition precedent to consummation of the Merger as stated in Section 7.2(g) of the Merger Agreement.
|
2.
|
Employment Terms and Duties.
|
a.
|
Acceptance of Employment
. MEEMEE hereby employs EMPLOYEE and EMPLOYEE hereby accepts employment by MEEMEE upon the terms and conditions set forth in this Agreement.
|
b.
|
Term
. The term of this Agreement ("Term") shall commence upon the Merger Date and expire three (3) years from the anniversary of the Merger Date, provided, however, that the Term shall renew automatically for two-year periods unless one Party notifies the other in writing at least ninety (90) days prior to the expiration of the Term that it does not desire to renew the Agreement.
|
c.
|
Position and Duties
.
|
i.
|
At all times during the Term, EMPLOYEE shall serve as MEEMEE's Chief Executive Officer with all the customary powers and responsibilities of such position, including but not necessarily limited to those duties and responsibilities set forth in Appendix A hereto, and such other duties as may be assigned to EMPLOYEE from time to time by the Board of Directors.
|
ii.
|
HEUMILLER shall report to the Board of Directors of MEEMEE (the "Board"), of which HEUMILLER shall also be a member.
|
iii.
|
EMPLOYEE shall:
|
A.
|
primarily perform his duties at such locations as EMPLOYEE determines in consultation with the Board.
|
B.
|
use his best efforts to promote the interests of MEEMEE and its affiliates and subsidiaries throughout the world ("collectively, MEEMEE Affiliates") and devote his business time and attention to his employment under this Agreement. For avoidance of doubt, "MEEMEE Affiliates" is deemed to include any entity in which MEEMEE has share(s), membership interest(s), or other financial or equitable interest(s), either directly or through another MEEMEE Affiliate.
|
iv.
|
EMPLOYEE shall not, without prior written authorization from the Board, engage in any other business activities that would interfere with the performance of his position and duties as stated in paragraph
2.c.i above
, provided, however, that EMPLOYEE may, without approval from the Board, (I) serve as a member of boards of other corporations or organizations that do not compete with MEEMEE, (II) engage or participate in charitable, religious or civic activities, (III) manage any personal investments, and (IV) serve as an executor, trustee or in other similar fidiciary capacity, so long as, in each case, such activities do not interfere with the performance of his position and duties as stated in paragraph
2.c.i above
.
|
3.
|
Compensation.
MeeMee shall pay employee and employee hereby agrees to accept, as compensation for all services rendered under this agreement and for employee's covenants of confidentiality, non-competition, non-solicitation and non-disparagement as stated in paragraphs
5
,
7
and
8 below
, respectively, the compensation and benefits described in appendix b hereto ("base salary and benefits").
|
4.
|
Termination.
|
a.
|
Events of Termination
. Notwithstanding anything contained in paragraph
2 above
, the Term shall terminate:
|
i.
|
upon Employee's death;
|
ii.
|
for Cause (as defined in paragraph
4.c below
) immediately upon notice from MEEMEE to EMPLOYEE or at such later date as such notice may specify;
|
iii.
|
without Cause upon notice (as set forth in paragraph
4.d below
); or
|
iv.
|
upon EMPLOYEE's resignation or other cessation by EMPLOYEE of his employment (other than as provided in clauses 4a.i. through 4a.iii above).
|
b.
|
Termination at Death
. In the event that Employee dies during the Term, Employee's employment shall be terminated and MEEMEE shall pay to EMPLOYEE's executors, legal representatives or administrators an amount equal to the accrued and unpaid (as of the effective date of such termination) Base Salary and Benefits, including without limitation any Stock Option benefits. Except as aforesaid, MEEMEE shall have no other liability or obligation to EMPLOYEE's executors, legal representatives or administrators, heirs or assigns (or any person claiming under or through same), except that EMPLOYER's executors, legal representatives or administrators shall be entitled to receive any payment prescribed under any death or disability benefit plans in which EMPLOYEE was a participant as a MEEMEE employee.
|
c.
|
Termination for Cause
. MEEMEE may terminate EMPLOYEE's employment at any time for Cause upon written notice to EMPLOYEE. As used in this Agreement, "Cause" means:
|
i.
|
a material breach of this Agreement or any material written Company policy which cannot reasonably be cured within thirty (30) days of EMPLOYEE being notified of such breach;
|
ii.
|
any act of fraud, misappropriation or embezzlement involving MEEMEE or its assets;
|
iii.
|
Employee's insubordination or failure to follow the directions of the Board of Directors, which has continued after at least two (2) prior written warnings by the Board to EMPLOYEE;
|
iv.
|
a conviction or plea of guilty to any felony, or any misdemeanor involving dishonesty, financial wrongdoing or moral turpitude.
|
d.
|
Termination without Cause
. MEEMEE may terminate EMPLOYEE's employment at any time, for any reason whatsoever or no reason at all, effective upon the date designated by MEEMEE upon thirty (30) days' prior written notice to EMPLOYEE. In the event of Termination without Cause, EMPLOYEE shall be paid all accrued but unpaid (as of the effective date of such termination) Base Salary and Benefits. In addition, provided that EMPLOYEE signs and does not revoke a separation agreement and release in substantially the form attached hereto as Appendix C, EMPLOYEE shall be entitled to receive (i) his full Base Salary and Benefits (including but not limited to any Stock Options earned and Bonuses) for six (6) months from the termination date or the remainder of the then-current calendar year, whichever is longer; (ii) health insurance coverage for a period of one (1) year from the effective date of such termination; and (iii) at such time as the release becomes non-revocable, and in accordance with MEEMEE's then-current payroll schedule, his Base Salary through to the end of the Term, provided, however, that any Base Salary accrued but not paid prior to the date on which the release became non-revocable shall be payable immediately on such date. Except as aforesaid, MEEMEE shall have no further liability or obligation to EMPLOYEE by reason of termination without Cause. Notwithstanding any of the foregoing, if EMPLOYEE is terminated by MeeMee without cause within eighteen (18) months of the Merger Date, EMPLOYEE shall be entitled to receive all of the benefits specified in subparagraphs (i) through (iii) above and the Separation Agreement, but EMPLOYEE shall not be bound by paragraph
7.a.i below
(non-competition).
|
e.
|
Voluntary Termination by Employee
. EMPLOYEE may terminate his employment at any time for any reason, effective upon the date designated by EMPLOYEE but upon no fewer than ninety days (90) prior written notice to MEEMEE. In the event of such termination, EMPLOYEE shall be entitled to receive all accrued but unpaid (as of the effective date of such termination) Base Salary and Benefits. All Base Salary and Benefits shall cease at the time of such termination, subject to the terms of any benefit plan then in force and applicable to EMPLOYEE. EMPLOYEE shall not be entitled to receive any Bonus applicabe to the then-current calendar year. Except as aforesaid, MEEMEE shall have no liability or obligation to EMPLOYEE by reason of EMPLOYEE's voluntary termination. Notwithstanding the
|
5.
|
Confidential Information.
|
a.
|
Definition
. As used in this Agreement, "Confidential Information" means all trade secrets, confidential and proprietary information, and knowledge or data, including but not limited to business plans, client lists and client information, related to MEEMEE and MEEMEE Affiliates, and the business of any of the foregoing, which EMPLOYEE learned, developed obtained during the course of his employment, and which is not or does not hereafter become public knowledge (other than by acts or omissions by EMPLOYEE).
|
b.
|
Degree of Care
. EMPLOYEE shall at all times protect Confidential Information from being disclosed using the appropriate degree of care for the particular Confidential Information in question, but not less than a reasonable degree of care.
|
c.
|
Non-Disclosure
. EMPLOYEE shall not, without the prior written consent of MEEMEE or as may be required by Jaw or legal process, communicate or divulge any Confidential Information to anyone other than MEEMEE and those within MEEMEE who have a need to know (including but not limited to the Board).
|
d.
|
Effect of Termination
. Termination of the the Term, however caused, shall have no effect on EMPLOYEE's obligations under this paragraph
5
. Upon termination of the Term or, if earlier, upon request by the Board, EMPLOYEE shall hand over or return all Confidentail Information to MEEMEE regardless of the form or format in which such Confidential Information exists, and shall delete from all personal devices all copies of Confidential Information thereon.
|
6.
|
Work Product.
|
a.
|
MEEMEE is and shall be the owner of all rights in and to EMPLOYEE's work, work product, deliverables, material and information created, whether alone or with others, in the course of EMPLOYEE's employment, including but not limited to the proceeds and all Intellectual Property Rights (as hereinafter defined) contained therein or derived therefrom ("Work Product") free and clear of any claim of any kind or nature by EMPLOYEE and anyone claiming through EMPLOYEE. As used in this Agreement, "Intellectual Property Rights" means any and all copyrights, rights in
trademarks, service marks, trade names, patents, mask works and industrial design, and all other intangible property rights of an intellectual nature.
|
b.
|
All copyrightable content of Work Product shall be deemed "work made for hire" under the United States Copyright Act, as amended.
|
c.
|
If, for any reason, Work Product is, under the law of any jurisdiction not to belong solely to MEEMEE or constitute "work made for hire" (as applicable), EMPLOYEE hereby irrevocably and exclusively assigns to MEEMEE all Intellectual Property Rights, title and interest in and to such Work Product together with the right to collect any and all proceeds that would otherwise be payable to EMPLOYEE in respect thereof. EMPLOYEE shall fully cooperate
|
7.
|
Non-Competition and Non-Solicitation.
|
a.
|
In consideration of the benefits and other promises set forth in this Agreement, EMPLOYEE shall not, for a period of eighteen (18) months from termination of the Term, however caused (the "Restriction Period"):
|
i.
|
directly or indirectly engage in (as a principal, partner, director, officer, agent, employee, consultant, owner, independent contractor or otherwise, with or without compensation), or hold a financial interest in any person or entity that carries on or plans to carry on business activities directly in Competition (as hereinafter defined) with MEEMEE and MEEMEE Affiliates, provided, however, that it shall not be a violationof this paragraph
7.a.i
for EMPLOYEE to become a registered or beneficial owner of up to one percent (1%) of any class of the capital stock of a competing corporation registered under the Securities Exchange Act of 1934, as amended, provided that EMPLOYEE does not actively participate in the business of such corporation until such time as the Restriction Period expires. As used in this Agreement, "Competition" means engagement in developing (for any person other than MEEMEE or MEEMEE Affiliates pursuant to a written agreement signed by MEEMEE or a MEEMEE Affiliate prior to EMPLOYEE's engagement in such development) or marketing, promotion, offering, sale or other exploitation of online digital content for consumers or professionals related to instruction in or practice of exercise modalities and fitness methods, physical therapy, and/or health, fitness and lifestyle regimes.
|
ii.
|
contact, solicit, call on or otherwise deal in any way with any licensor, partner, co-venturer, supplier, vendor, contractor or Customer (as hereinafter defined) of MEEMEE or MEEMEE Affiliates for a purpose that is in Competition with the business of MEEMEE or MEEMEE Affiliates. As used in this Agreement, "Customer" means any entity or person that EMPLOYEE knows or reasonably should know is or has been a customer of MEEMEE or MEEMEE Affiliates at any time within the preceding twelve (12) months;
|
iii.
|
influence or attempt to influence any licensor, partner, co-venturer, supplier, vendor, contractor or Customer of MEEMEE or MEEMEE Affiliates to terminate or modify any written or oral agreement or course of dealing with MEEMEE or MEEMEE Affiliates; and
|
iv.
|
influence or attempt to influence, or arrange to have another person or entity influence or attempt to influence, any person either to terminate or modify any employment, consulting, director, agency or other arrangement with MEEMEE or MEEMEE Affiliates in order that EMPLOYEE may employ or retain such person on behalf of himself or any third party.
|
b.
|
EMPLOYEE warrants and represents in light of the benefits and promises set forth in this Agreement, and the nature of the business of MEEMEE and MEEMEE Affiliates, that the restrictions set forth in paragraph
7.a above
(the "Restrictions") are fair and reasonable as to duration and scope and are reasonably intended to protect the business interests of MEEMEE
|
8.
|
Non-disparagement
. During the term and thereafter, neither employee nor MeeMee shall make or publish any statement which is, or which may reasonably be considered to be, disparaging to employee, MeeMee, MeeMee affiliates or the directors, officers, employees, oparations, products or services of MeeMee or MeeMee affiliates.
|
9.
|
Remedies for certain breaches.
If employee breaches or threatens to commit a breach of any of its obligations under paragraphs
5
through
8 above
, of if MeeMee breaches or threatens to commit a breach of its obligations under paragraph
8 above
, then MeeMee or employee, as applicable, shall have the following rights and remedies, each of which shall be in addition to, and not in lieu of, any other rights and remedies available to them at law or in equity:
|
a.
|
For breaches or threatened breaches of any obligations contained paragraphs
5
through
8 above
, specific performance without the need to post a bond or other surety or to prove that money damages would not provide an adequate remedy, it being acknowledged and agreed by the Parties that any such breach or threatened breach will cause irreparable harm to the affected Party; and
|
b.
|
For breaches or threatened breaches of any obligations contained paragraphs
5
through
7 above
, the right (A) to seek an accounting from EMPLOYEE of all compensation, profits, monies or other benefits derived or received by EMPLOYEE or any third party as the result of EMPLOYEE's breach or threatened breach; and (B) indemnification of MEEMEE and MEEMEE Affiliates against any and all losses, damages (including special and consequential damages), costs and expenses, including reasonable attorneys' fees, court costs and legal expenses, that may be incurred by them and which result from or arise out of any such breach of threatened breach.
|
10.
|
Notices.
All notices hereunder shall be sufficiently given for all purposes hereunder if in writing and delivered personally, sent by documented overnight delivery service or, to the extent receipt is confirmed, by telecopy, telefax, email or other electronic transmission to the appropriate address or number as set forth below at the addresses provided below (or any other address duly notified by a party hereto pursuant to the provisions of this paragraph
10
).
|
If to MEEMEE
:
|
with a copy to
:
|
MeeMee Media Inc.
33 Willow Avenue
Toronto, ON M4E 3K1 Attn: Martin J. Doane, Executive Chairman martin.doane@ubequitycapital.com Phone: (416) 903 6691 |
Steven J. Davis, Esq.
Steven James Davis, A Professional Corporation
1042 N. El Camino Real, B-261 Encinitas, California 92024-1322 steve@sjdavislaw.com Phone: (619) 788-2383 Fax: (858) 367-8138 |
If to EMPLOYEE
:
|
with a copy to
:
|
Peter Heumiller
331 John Henry Drive
Henderson, NV 89014 peter.heumiller@allscreensmedia.com Phone: (732) 299-6261 |
Gordon E. R. Troy, Esq.
5203 Shelburne Rd.
Shelburne, VT 05482
Email: gtroy@webtm.com Phone: (802) 881-0640
Fax: (646) 588-1962
|
11.
|
Miscellaneous.
|
a.
|
Amendments in Writing
. No amendment to or modification of this Agreement or any of its terms and conditions shall be valid or binding on the Parties unless made in writing and signed by a duly authorized representative of both Parties.
|
b.
|
Assignment
. Neither Party may transfer or assign this Agreement or any of its rights hereunder, whether temporarily or permanently, voluntarily or involuntarily, and whether by merger (where the transferring or assigning Party is the disappearing corporation or entity), consolidation, dissolution, operation of law or any other manner, except to an entity acquiring all or substantially all of the Assignor's assets. The non-assigning Party shall have the right to void any purported assignment in violation of this paragraph
11.b
. The foregoing right of the non-assigning Party shall be without prejudice to any other claim the non-assigning Party may have for damages or equitable relief. OR
|
c.
|
Assignment
. EMPLOYEE acknowledges and agrees that the services to be rendered by him and unique and personal. Accordingly, he may not assign or delegate any of his rights or obligations under this Agreement. Nothing in this Agreement shall preclude MEEMEE from consolidating or merging with or into, or transferring all or substantially all of its assets to another entity, provided that entity assumes this Agreement and all obligations and undertakings of MEEMEE hereunder.
|
d.
|
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of MEEMEE and its successors, assigns and representatives, and shall be binding upon EMPLOYEE and his heirs, executors and legal representatives.
|
e.
|
Cumulative Remedies
. All rights and remedies of the Parties, whether at law or in equity, shall be cumulative and none of them shall be in limitation of any other right or remedy.
|
f.
|
Effective Date
. If no date is entered on the first line of this Agreement, then the Effective Date shall be the date of signing of the last Party to sign this Agreement.
|
g.
|
Enforceability/Severability
. If any provision of this Agreement shall be held void, voidable, invalid or inoperative, the remaining provisions of this Agreement shall remain in full force and effect. However, if such void, voidable, invalid or inoperative provision is a material term or condition of this Agreement, the Parties shall supply a substitute provision, negotiated in good faith, which comes closest to their original intent.
|
h.
|
Entire Agreement
. This Agreement contains the entire understanding between the Parties relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations and inducements with respect to said subject matter.
|
i.
|
Governing Law
. This Agreement and any dispute or controversy arising out of or related to this Agreement and/or the relationship between the Parties established herein ("Claims") shall be governed by and construed, interpreted and resolved in accordance with the laws of the State of Nevada without regard to its choice of law provisions; provided, however, that any procedural or substantive Claim conflicting with or falling under the exclusive jurisdiction of United States federal law shall be governed by, and construed, interpreted and resolved in accordance with United States federal law without regard to its choice of law provisions. All Claims shall be submitted exclusively to the federal and state courts of competent jurisdiction located in Las Vegas, Nevada, and the Parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and venue, and waive any objection they may now or hereafter have with respect thereto.
|
j.
|
Headings
. The paragraph headings in this Agreement are solely for the convenience of the Parties and have no legal or contractual significance.
|
k.
|
Presumptions
. This Agreement shall be construed without regard to any presumption or other rule permitting construction against the Party causing this Agreement to be drafted and shall not be construed more strictly in favor of or against either Party.
|
l.
|
Prior Agreements
. EMPLOYEE represents to MEEMEE that: (a) his execution of this Agreement and provision of services hereunder shall not constitute a breach of any contract, agreement or understanding, oral or written, to which he is a party or by which he is bound; (b) he is free and able to execute this Agreement and to provide services to MEEMEE, and (c) there are no confidentiality commitments or other employment restrictions that EMPLOYEE has with any other employer, person or entity that he has not disclosed to MEEMEE.
|
m.
|
Rights of Third Parties
. This Agreement shall not be deemed to give any right or remedy to any third party whatsoever.
|
n.
|
Signature and Counterparts
. This Agreement may be signed in counterparts and transmitted by one Party to the other via email or FAX. Said counterparts, taken together, shall constitute one agreement. If this Agreement is signed in counterparts, neither Party shall be bound by this Agreement until both Parties have duly executed a counterpart hereof.
|
o.
|
p.
|
Waiver
. No waiver shall be effective unless in writing and signed by an authorized representative of the Party against whom enforcement of the waiver is sought. Neither the failure of either Party to exercise any right, nor the waiver of any default or breach by the other Party, shall constitute a waiver of such right or a waiver of such default or breach with respect to any subsequent default or breach.
|
MeeMee Media, Inc.
|
Peter Heumiller
|
|||
By:
|
/s/ Martin Doane
|
By:
|
/s/ Peter Heumiller
|
|
Name:
|
Martin Doane
|
Name:
|
Peter Heumiller
|
|
Title:
|
Executive Chairman
|
Date:
|
May 19, 2015
|
|
Date:
|
May 19, 2015
|
·
|
Developing, updating and overseeing the deployment of the Company's various international business plans, JVs and projects
|
·
|
Managing the daily activities of the Company and all Executives, employees, consultants and third party service providers and workers (directly or indirectly)
|
·
|
Developing and managing budgets for all Company operations and projects
|
·
|
Overseeing the Company's finances and preparation of required financial documents
|
·
|
Overseeing and working with the Company's business development team(s) and assessing the various global opportunities to present to the Board
|
·
|
Overseeing the negotiation of all major partnerships and project deals, and needed legal agreements
|
·
|
Overseeing the preparation of comprehensive new business plans for greenlit new projects and partnerships.
|
·
|
Recruiting and hiring new Company talent as needed
|
·
|
Promoting the Company through favorable publicity and industry conference engagements
|
·
|
Working with the Chairman and Board to establish and enforce Company policies and employment manuals as needed
|
·
|
Fostering a creative, cooperative and rewarding Company culture
|
·
|
Reviewing all business matters with the Board
|
1.
|
Buccell, LLC investments into bodyART Media and Global Screens Media (Staby and IO Ball products and media). Negotiated. $320K. Anticipated closing 5/1/2015
|
2.
|
Speedball Media. Additional investment into expanding JV business. In discussions. $225K. Projected date: late May 2015.
|
3.
|
Renaissance Fitness. Developing a new fitness media workout brand around owner Danielle. Approx. $200 to $250K. Projected date: June 2015.
|
4.
|
DeepWork Fitness modality media partnership. Approximately $150K. Projected date: May / June 2015.
|
5.
|
Perform Better Europe / Christian Jund Publishing. Potential partnership around Miracle Ball Method project and bodyART Xtreme projects using Perform Better projects. Early discussions. Approximately $100K to $150K June / July 2105.
|
6.
|
TV Atividades JV. Being discussed between Comcast, TV Globo and ASM. Early Stage. Comcast would contribute existing kid's activity library Heumiller created there, and TV Globo would fund repurposing library, new productions and distribution.
|
7.
|
Fitness First / NewMoove.com . Early stage partnership discussion about co-producing and co-managing professional and consumer subscription sites in German language markets.
|
8.
|
NuFit Corp. Early stage discussion about producing online education for the Company's revolutionary NUBELLS products. Also discussing ASM becoming exclusive Brazilian distributor.
|
9.
|
Bodies in Balance. Acquisition of digital European Fitness programming channel. Current revenues of $750K. NOTE: This would be a MEEMEE/ASM acquisition requiring a stock grant and working capital funding. ASM would therefore not receive a bonus for this project. However, this acquisition will assist ASM in operating and growing other PIP projects.
|
·
|
As of the first day of EMPLOYEE's employment, MEEMEE shall pay One Hundred Percent (100%) of the reasonable cost of private health insurance for Employee and his spouse, provided, however, that any premiums above $1,000.00 / month shall be subject to the sole discretion of the Board; provided, however, that if MEEMEE establishes a company health insurance plan, then EMPLOYEE shall participate in such plan in lieu of MEEMEE paying his private health insurance premiums.
|
·
|
As of the first day of EMPLOYEE's employment, MEEMEE shall pay Seventy-Five Percent (75%) of the reasonable cost of private dental coverage and vision coverage for Employee to a maximum of $250 / month, provided, however, that if MEEMEE establishes a company dental and/or visual coverage plan, then EMPLOYEE shall participate in such plan in lieu of MEEMEE paying his private premiums.
|
·
|
MEEMEE shall pay 100% of the premiums for life insurance in the amount of $150,000 or one times (1x) EMPLOYEE's then-existing Base Salary, whichever is greater.
|
·
|
If MEEMEE establishes a disability insurance plan, MEEMEE will pay 100% of EMPLOYEE's premiums for short-term and/or long-term disability coverage, but EMPLOYEE will be responsible for paying the applicable taxes on the premium payments.
|
·
|
If MEEMEE establishes a 401(K) Program, EMPLOYEE will be eligible to participate subject to the terms of that program. MEEMEE will match EMPLOYEE's contributions dollar-for-dollar up to four percent (4%) of Employee's then-existing Base Salary, not inclusive of any bonuses.
|
·
|
MEEMEE shall provide EMPLOYEE with an automobile allowance of Three Hundred Dollars ($300.00) per month.
|
·
|
MEEMEE shall provide EMPLOYEE with a cable, internet, phone, cell phone allowance of Three Hundred Dollars ($300.00) per month.
|
·
|
EMPLOYEE is eligible to take the following paid time off per calendar year: twenty (20) vacation days ("PTO"), ten (10) holidays generally observed by MEEMEE in the United States in accordance with the holiday policy established by MEEMEE from time to time, seven (7) sick days and three (3) bereavement days. Unused time off for holidays, sick days and bereavement days may not be carried over into the following year. Unused vacation days may be carried over to the following year, provided, however, that EMPLOYEE may not accrue more than twenty (20) days of unused vacation days without written authorization of MEEMEE. If EMPLOYEE accrues twenty (20) unused vacation days, then he may not earn any additional vacation days until his "bank" of PTO falls below twenty. PTO, sick and bereavement will be pro-rated during EMPLOYEE's first year of employment. Vacation days are earned and accrued on a quarterly basis, with five vacation days accruing for each quarter, but the foregoing shall not prevent EMPLOYEE from using vacation days that will accrue during the same calendar year assuming EMPLOYEE's continued employment. All vacation days shall be taken on no less than thirty (30) days written notice to the Board and subject to the Board's approval, not to be unreasonably withheld.
|
·
|
EMPLOYEE shall be reimbursed for all normal items of travel, entertainment and miscellaneous expenses reasonably incurred by him on behalf of MEEMEE, provided that such expenses are documented and submitted to MEEMEE in accordance with the reimbursement policies established by MEEMEE from time to time.
|
1.
|
Preamble.
|
a.
|
On even date hereof, MEEMEE has entered into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which "MergerSub" (as defined in the Merger Agreement) shall merge with and into All Screens Media, LLC (ASM), ASM shall be the surviving company and become a direct wholly-owned subsidiary of MEEMEE, and SICHEL shall become Executive Vice President of MEEMEE.
|
b.
|
It is the intention of the Parties that this Agreement shall take effect immediately upon the consummation of the Merger on the "Merger Date" (as defined in the Merger Agreement) as provided in Section 1.6(b) of the Merger Agreement.
|
c.
|
The execution of this Agreement by the Parties is a condition precedent to consummation of the Merger as stated in Section 7.2(g) of the Merger Agreement.
|
2.
|
Employment Terms and Duties.
|
a.
|
Acceptance of Employment
. MEEMEE hereby employs EMPLOYEE and EMPLOYEE hereby accepts employment by MEEMEE upon the terms and conditions set forth in this Agreement.
|
b.
|
Term
. The term of this Agreement ("Term") shall commence upon the Merger Date and expire three (3) years from the anniversary of the Merger Date, provided, however, that the Term shall renew automatically for two-year periods unless one Party notifies the other in writing at least ninety (90) days prior to the expiration of the Term that it does not desire to renew the Agreement.
|
c.
|
Position and Duties
.
|
i.
|
At all times during the Term, EMPLOYEE shall serve as MEEMEE's Executive Vice President with all the customary powers and responsibilities of such position, including but not necessarily limited to those duties and responsibilities set forth in Appendix A hereto, and such other duties as may be assigned to EMPLOYEE from time to time by the Chief Execuitve Officer of MEEMEE (the "CEO").
|
ii.
|
SICHEL shall report to the CEO of MEEMEE.
|
iii.
|
EMPLOYEE shall:
|
A.
|
primarily perform his duties at such locations as EMPLOYEE determines in consultation with the CEO.
|
B.
|
use his best efforts to promote the interests of MEEMEE and its affiliates and subsidiaries throughout the world ("collectively, MEEMEE Affiliates") and devote his business time and attention to his employment under this Agreement. For avoidance of doubt, "MEEMEE Affiliates" is deemed to include any entity in which MEEMEE has share(s), membership interest(s), or other financial or equitable interest(s), either directly or through another MEEMEE Affiliate.
|
iv.
|
EMPLOYEE shall not, without prior written authorization from the CEO and / or Board or Directors (the" Board"), engage in any other business activities that would interfere with the performance of his position and duties as stated in paragraph
2.c.i above
, provided, however, that EMPLOYEE may, without approval from the CEO and / or Board, (I) serve as a member of boards of other corporations or organizations that do not compete with MEEMEE, (II) engage or participate in charitable, religious or civic activities, (III) manage any personal investments, and (IV) serve as an executor, trustee or in other similar fidiciary capacity, so long as, in each case, such activities do not interfere with the performance of his position and duties as stated in paragraph
2.c.i above
.
|
3.
|
Compensation.
MeeMee shall pay employee and employee hereby agrees to accept, as compensation for all services rendered under this agreement and for employee's covenants of confidentiality, non-competition, non-solicitation and non-disparagement as stated in paragraphs
5
,
7
and
8 below
, respectively, the compensation and benefits described in appendix B hereto ("base salary and benefits").
|
4.
|
Termination.
|
a.
|
Events of Termination
. Notwithstanding anything contained in paragraph
2 above
, the Term shall terminate:
|
i.
|
upon Employee's death;
|
ii.
|
for Cause (as defined in paragraph
4.c below
) immediately upon notice from MEEMEE to EMPLOYEE or at such later date as such notice may specify;
|
iii.
|
without Cause upon notice (as set forth in paragraph
4.d below
); or
|
iv.
|
upon EMPLOYEE's resignation or other cressation by EMPLOYEE of his employment (other than as provided in clauses 4a.i. through 4a.iii above).
|
b.
|
Termination at Death
. In the event that Employee dies during the Term, Employee's employment shall be terminated and MEEMEE shall pay to EMPLOYEE's executors, legal representatives or administrators an amount equal to the accrued and unpaid (as of the effective date of such termination) Base Salary and Benefits, including without limitation any Stock Option benefits. Except as aforesaid, MEEMEE shall have no other liability or obligation to EMPLOYEE's executors, legal representatives or administrators, heirs or assigns (or any person claiming under or through same), except that EMPLOYER's executors, legal representatives or administrators shall be entitled to receive any payment prescribed under any death or disability benefit plans in which EMPLOYEE was a participant as a MEEMEE employee.
|
c.
|
Termination for Cause
. MEEMEE may terminate EMPLOYEE's employment at any time for Cause upon written notice to EMPLOYEE. As used in this Agreement, "Cause" means:
|
i.
|
a material breach of this Agreement or any material written Company policy which cannot reasonably be cured within thirty (30) days of EMPLOYEE being notified of such breach;
|
ii.
|
any act of fraud, misappropriation or embezzlement involving MEEMEE or its assets;
|
iii.
|
Employee's insubordination or failure to follow the directions of the CEO, which has continued after at least two (2) prior written warnings by the CEO;
|
iv.
|
a conviction or plea of guilty to any felony, or any misdemeanor involving dishonesty, financial wrongdoing or moral turpitude.
|
d.
|
Termination without Cause
. MEEMEE may terminate EMPLOYEE's employment at any time, for any reason whatsoever or no reason at all, effective upon the date designated by MEEMEE upon thirty (30) days' prior written notice to EMPLOYEE. In the event of Termination without Cause, EMPLOYEE shall be paid all accrued but unpaid (as of the effective date of such termination) Base Salary and Benefits. In addition, provided that EMPLOYEE signs and does not revoke a separation agreement and release in substantially the form attached hereto as Appendix C, EMPLOYEE shall be entitled to receive (i) his full Base Salary and Benefits (including but not limited to any Stock Options earned and Bonuses) for six (6) months from the termination date or the remainder of the then-current calendar year, whichever is longer; (ii) health insurance coverage for a period of one (1) year from the effective date of such termination; and (iii) at such time as the release becomes non-revocable, and in accordance with MEEMEE's then-current payroll schedule, his Base Salary through to the end of the Term, provided, however, that any Base Salary accrued but not paid prior to the date on which the release became non-revocable shall be payable immediately on such date. Except as aforesaid, MEEMEE shall have no further liability or obligation to EMPLOYEE by reason of termination without Cause. Notwithstanding any of the foregoing, if EMPLOYEE is terminated by MeeMee without cause within eighteen (18) months of the Merger Date, EMPLOYEE shall be entitled to receive all of the benefits specified in subparagraphs (i) through (iii) above and the Separation Agreement, but EMPLOYEE shall not be bound by paragraph
7.a.i below
(non-competition).
|
e.
|
Voluntary Termination by Employee
. EMPLOYEE may terminate his employment at any time for any reason, effective upon the date designated by EMPLOYEE but upon no fewer than ninety days (90) prior written notice to MEEMEE. In the event of such termination, EMPLOYEE shall be entitled to receive all accrued but unpaid (as of the effective date of such termination) Base Salary and Benefits. All Base Salary and Benefits shall cease at the
time of
|
5.
|
Confidential Information.
|
a.
|
Definition
. As used in this Agreement, "Confidential Information" means all trade secrets, confidential and proprietary information, and knowledge or data, including but not limited to business plans, client lists and client information, related to MEEMEE and MEEMEE Affiliates, and the business of any of the foregoing, which EMPLOYEE learned, developed obtained during the course of his employment, and which is not or does not hereafter become public knowledge (other than by acts or omissions by EMPLOYEE).
|
b.
|
Degree of Care
. EMPLOYEE shall at all times protect Confidential Information from being disclosed using the appropriate degree of care for the particular Confidential Information in question, but not less than a reasonable degree of care.
|
c.
|
Non-Disclosure
. EMPLOYEE shall not, without the prior written consent of MEEMEE or as may be required by Jaw or legal process, communicate or divulge any Confidential Information to anyone other than MEEMEE and those within MEEMEE who have a need to know (including but not limited to the Board).
|
d.
|
Effect of Termination
. Termination of the the Term, however caused, shall have no effect on EMPLOYEE's obligations under this paragraph
5
. Upon termination of the Term or, if earlier, upon request by the Board, EMPLOYEE shall hand over or return all Confidentail Information to MEEMEE regardless of the form or format in which such Confidential Information exists, and shall delete from all personal devices all copies of Confidential Information thereon.
|
6.
|
Work Product.
|
a.
|
MEEMEE is and shall be the owner of all rights in and to EMPLOYEE's work, work product, deliverables, material and information created, whether alone or with others, in the course of EMPLOYEE's employment, including but not limited to the proceeds and all Intellectual Property Rights (as hereinafter defined) contained therein or derived therefrom ("Work Product") free and clear of any claim of any kind or nature by EMPLOYEE and anyone claiming through EMPLOYEE. As used in this Agreement, "Intellectual Property Rights" means any and all copyrights, rights in trademarks, service marks, trade names, patents, mask works and industrial design, and all other intangible property rights of an intellectual nature.
|
b.
|
All copyrightable content of Work Product shall be deemed "work made for hire" under the United States Copyright Act, as amended.
|
c.
|
If, for any reason, Work Product is, under the law of any jurisdiction not to belong solely to MEEMEE or constitute "work made for hire" (as applicable), EMPLOYEE hereby irrevocably and exclusively assigns to MEEMEE all Intellectual Property Rights, title and interest in and to such Work Product together with the right to collect any and all proceeds that would otherwise be payable to EMPLOYEE in respect thereof. EMPLOYEE shall fully cooperate with MEEMEE to the extent reasonably required by and at no cost to MEEMEE, to effect such assignment.
|
7.
|
Non-Competition and Non-Solicitation.
|
a.
|
In consideration of the benefits and other promises set forth in this Agreement, EMPLOYEE shall not, for a period of eighteen (18) months from termination of the Term, however caused (the "Restriction Period"):
|
i.
|
directly or indirectly engage in (as a principal, partner, director, officer, agent, employee, consultant, owner, independent contractor or otherwise, with or without compensation), or hold a financial interest in any person or entity that carries on or plans to carry on business activities directly in Competition (as hereinafter defined) with MEEMEE and MEEMEE Affiliates, provided, however, that it shall not be a violationof this paragraph
7.a.i
for EMPLOYEE to become a registered or beneficial owner of up to one percent (1%) of any class of the capital stock of a competing corporation registered under the Securities Exchange Act of 1934, as amended, provided that EMPLOYEE does not actively participate in the business of such corporation until such time as the Restriction Period expires. As used in this Agreement, "Competition" means engagement in developing (for any person other than MEEMEE or MEEMEE Affiliates pursuant to a written agreement signed by MEEMEE or a MEEMEE Affiliate prior to EMPLOYEE's engagement in such development) or marketing, promotion, offering, sale or other exploitation of online digital content for consumers or professionals related to instruction in or practice of exercise modalities and fitness methods, physical therapy, and/or health, fitness and lifestyle regimes.
|
ii.
|
contact, solicit, call on or otherwise deal in any way with any licensor, partner, co-venturer, supplier, vendor, contractor or Customer (as hereinafter defined) of MEEMEE or MEEMEE Affiliates for a purpose that is in Competition with the business of MEEMEE or MEEMEE Affiliates. As used in this Agreement, "Customer" means any entity or person that EMPLOYEE knows or reasonably should know is or has been a customer of MEEMEE or MEEMEE Affiliates at any time within the preceding twelve (12) months;
|
iii.
|
influence or attempt to influence any licensor, partner, co-venturer, supplier, vendor, contractor or Customer of MEEMEE or MEEMEE Affiliates to terminate or modify any written or oral agreement or course of dealing with MEEMEE or MEEMEE Affiliates; and
|
iv.
|
influence or attempt to influence, or arrange to have another person or entity influence or attempt to influence, any person either to terminate or modify any employment, consulting, director, agency or other arrangement with MEEMEE or MEEMEE Affiliates in order that EMPLOYEE may employ or retain such person on behalf of himself or any third party.
|
b.
|
EMPLOYEE warrants and represents in light of the benefits and promises set forth in this Agreement, and the nature of the business of MEEMEE and MEEMEE Affiliates, that the restrictions set forth in paragraph
7.a above
(the "Restrictions") are fair and reasonable as to duration and scope and are reasonably intended to protect the business interests of MEEMEE and MEEMEE Affiliates. Accordingly, EMPLOYEE and MEEMEE convenant and agree that the Restrictions are intended by them to be enforced to the fullest extent permitted under applicable law. If, in any proceeding, a court or mediator refuses to enforce the Restrictions according to their terms, then such court or mediator shall be authorized to modify or limit the scope of the Restrictions in a manner consistent with law and equity.
|
8.
|
Non-Disparagement
.
During the term and thereafter, neither employee nor MeeMee shall make or publish any statement which is, or which may reasonably be considered to be, disparaging to employee, MeeMee, MeeMee affiliates or the directors, officers, employees, oparations, products or services of MeeMee or MeeMee affiliates.
|
9.
|
Remedies for Certain Breaches
.
If employee breaches or threatens to commit a breach of any of its obligations under paragraphs
5
through
8 above
, of if MeeMee breaches or threatens to commit a breach of its obligations under paragraph
8 above
, then MeeMee or employee, as applicable, shall have the following rights and remedies, each of which shall be in addition to, and not in lieu of, any other rights and remedies available to them at law or in equity:
|
a.
|
For breaches or threatened breaches of any obligations contained paragraphs
5
through
8 above
, specific performance without the need to post a bond or other surety or to prove that money damages would not provide an adequate remedy, it being acknowledged and agreed by the Parties that any such breach or threatened breach will cause irreparable harm to the affected Party; and
|
b.
|
For breaches or threatened breaches of any obligations contained paragraphs
5
through
7 above
, the right (A) to seek an accounting from EMPLOYEE of all compensation, profits, monies or other benefits derived or received by EMPLOYEE or any third party as the result of EMPLOYEE's breach or threatened breach; and (B) indemnification of MEEMEE and MEEMEE Affiliates against any and all losses, damages (including special and consequential damages), costs and expenses, including reasonable attorneys' fees, court costs and legal expenses, that may be incurred by them and which result from or arise out of any such breach of threatened breach.
|
10.
|
Notices.
All notices hereunder shall be sufficiently given for all purposes hereunder if in writing and delivered personally, sent by documented overnight delivery service or, to the extent receipt is confirmed, by telecopy, telefax, email or other electronic transmission to the appropriate address or number as set forth below at the addresses provided below (or any other address duly notified by a party hereto pursuant to the provisions of this paragraph
10
).
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If to MEEMEE
:
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with a copy to
:
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MeeMee Media Inc.
33 Willow Avenue
Toronto, ON M4E 3K1 Attn: Martin J. Doane, Executive Chairman martin.doane@ubequitycapital.com Phone: (416) 903 6691 |
Steven J. Davis, Esq.
Steven James Davis, A Professional Corporation
1042 N. El Camino Real, B-261 Encinitas, California 92024-1322 steve@sjdavislaw.com Phone: (619) 788-2383 Fax: (858) 367-8138 |
If to EMPLOYEE
:
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with a copy to
:
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Howard Sichel
74 Bayview Avenue
Port Washington, NY 11059 howard.sichel@allscreensmedia.com Phone: (516) 647-0017 |
Gordon E. R. Troy, Esq.
5203 Shelburne Rd.
Shelburne, VT 05482
Email: gtroy@webtm.com Phone: (802) 881-0640
Fax: (646) 588-1962
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11.
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Miscellaneous.
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a.
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Amendments in Writing
. No amendment to or modification of this Agreement or any of its terms and conditions shall be valid or binding on the Parties unless made in writing and signed by a duly authorized representative of both Parties.
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b.
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Assignment
. Neither Party may transfer or assign this Agreement or any of its rights hereunder, whether temporarily or permanently, voluntarily or involuntarily, and whether by merger (where the transferring or assigning Party is the disappearing corporation or entity), consolidation, dissolution, operation of law or any other manner, except to an entity acquiring all or substantially all of the Assignor's assets. The non-assigning Party shall have the right to void any purported assignment in violation of this paragraph
11.b
. The foregoing right of the non-assigning Party shall be without prejudice to any other claim the non-assigning Party may have for damages or equitable relief. OR
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c.
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Assignment
. EMPLOYEE acknowledges and agrees that the services to be rendered by him and unique and personal. Accordingly, he may not assign or delegate any of his rights or obligations under this Agreement. Nothing in this Agreement shall preclude MEEMEE from consolidating or merging with or into, or transferring all or substantially all of its assets to another entity, provided that entity assumes this Agreement and all obligations and undertakings of MEEMEE hereunder.
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d.
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Binding Effect
. This Agreement shall be binding upon and inure to the benefit of MEEMEE and its successors, assigns and representatives, and shall be binding upon EMPLOYEE and his heirs, executors and legal representatives.
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e.
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Cumulative Remedies
. All rights and remedies of the Parties, whether at law or in equity, shall be cumulative and none of them shall be in limitation of any other right or remedy.
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f.
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Effective Date
. If no date is entered on the first line of this Agreement, then the Effective Date shall be the date of signing of the last Party to sign this Agreement.
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g.
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Enforceability/Severability
. If any provision of this Agreement shall be held void, voidable, invalid or inoperative, the remaining provisions of this Agreement shall remain in full force and effect. However, if such void, voidable, invalid or inoperative provision is a material term or condition of this Agreement, the Parties shall supply a substitute provision, negotiated in good faith, which comes closest to their original intent.
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h.
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Entire Agreement
. This Agreement contains the entire understanding between the Parties relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations and inducements with respect to said subject matter.
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i.
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Governing Law
. This Agreement and any dispute or controversy arising out of or related to this Agreement and/or the relationship between the Parties established herein ("Claims") shall be governed by and construed, interpreted and resolved in accordance with the laws of the State of Nevada without regard to its choice of law provisions; provided, however, that any procedural or substantive Claim conflicting with or falling under the exclusive jurisdiction of United States federal law shall be governed by, and construed, interpreted and resolved in accordance with United States federal law without regard to its choice of law provisions. All Claims shall be submitted exclusively to the federal and state courts of competent jurisdiction located in Las Vegas, Nevada, and the Parties hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and venue, and waive any objection they may now or hereafter have with respect thereto.
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j.
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Headings
. The paragraph headings in this Agreement are solely for the convenience of the Parties and have no legal or contractual significance.
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k.
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Presumptions
. This Agreement shall be construed without regard to any presumption or other rule permitting construction against the Party causing this Agreement to be drafted and shall not be construed more strictly in favor of or against either Party.
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l.
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Prior Agreements
. EMPLOYEE represents to MEEMEE that: (a) his execution of this Agreement and provision of services hereunder shall not constitute a breach of any contract, agreement or understanding, oral or written, to which he is a party or by which he is bound; (b) he is free and able to execute this Agreement and to provide services to MEEMEE, and (c) there are no confidentiality commitments or other employment restrictions that EMPLOYEE has with any other employer, person or entity that he has not disclosed to MEEMEE.
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m.
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Rights of Third Parties
. This Agreement shall not be deemed to give any right or remedy to any third party whatsoever.
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n.
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Signature and Counterparts
. This Agreement may be signed in counterparts and transmitted by one Party to the other via email or FAX. Said counterparts, taken together, shall constitute one agreement. If this Agreement is signed in counterparts, neither Party shall be bound by this Agreement until both Parties have duly executed a counterpart hereof.
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o.
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Survival
. Any provision of this Agreement which contemplates performance, exercise of any right or fulfillment of any obligation subsequent to expiration or termination of the Term, including but not limited to those contained in paragraphs
4
through
9 above
, together with any and all provisions related to contract interpretation and the Parties' remedies, shall survive such expiration or termination.
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p.
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Waiver
. No waiver shall be effective unless in writing and signed by an authorized representative of the Party against whom enforcement of the waiver is sought. Neither the failure of either Party to exercise any right, nor the waiver of any default or breach by the other Party, shall constitute a waiver of such right or a waiver of such default or breach with respect to any subsequent default or breach.
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MeeMee Media, Inc.
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Howard Sichel
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|||
By:
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/s/ Martin Doane
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By:
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/s/ Howard Sichel
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Name:
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Martin Doane
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Name:
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Howard Sichel
|
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Title:
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Executive Chairman
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Date:
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May 19, 2015
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Date:
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May 19, 2015
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·
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Existing and emerging Exercise and Wellness modalities, brands and personalities
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·
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Wellness and Fitness product sourcing and education
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·
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Professional trainer certification and continuing education
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·
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Physical Therapist education and products
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·
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Identifying and presenting new global fitness and wellness business opportunities to the CEO.
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·
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Participating in the negotiation of fitness, wellness and therapy partnerships and project deals.
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·
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Assisting in the preparation and deployment of comprehensive new business plans for greenlit new projects and partnerships.
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·
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Recruiting new Company talent as needed for Fitness / Wellness / Therapist projects
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·
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Assisting in / overseeing the development of certification and education courses and materials.
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·
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Promoting the Company's Fitness and Wellness business initiatives through favorable publicity and industry conference engagements
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·
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Additional responsibilities as determined by the CEO and Board.
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·
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Physical Therapist education and products sales
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·
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Pilates education (professionals and consumers)
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1.
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Buccell, LLC investments into bodyART Media and Global Screens Media (Staby and IO Ball products and media). Negotiated. $320K. Anticipated closing 5/1/2015
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2.
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Speedball Media. Additional investment into expanding JV business. In discussions. $225K. Projected date: late May 2015.
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3.
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Renaissance Fitness. Developing a new fitness media workout brand around owner Danielle. Approx. $200 to $250K. Projected date: June 2015.
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4.
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DeepWork Fitness modality media partnership. Approximately $150K. Projected date: May / June 2015.
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5.
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Perform Better Europe / Christian Jund Publishing. Potential partnership around Miracle Ball Method project and bodyART Xtreme projects using Perform Better projects. Early discussions. Approximately $100K to $150K June / July 2105.
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6.
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TV Atividades JV. Being discussed between Comcast, TV Globo and ASM. Early Stage. Comcast would contribute existing kid's activity library that HEUMILLER created there, and TV Globo would fund repurposing library, new productions and distribution.
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7.
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Fitness First / NewMoove.com . Early stage partnership discussion about co-producing and co-managing professional and consumer subscription sites in German language markets.
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8.
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NuFit Corp. Early stage discussion about producing online education for the Company's revolutionary NUBELLS products. Also discussing ASM becoming exclusive Brazilian distributor.
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9.
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Bodies in Balance. Acquisition of digital European Fitness programming channel. Current revenues of $750K. NOTE: This would be an MEEMEE/ASM acquisition requiring a stock grant and working capital funding. ASM would therefore not receive a bonus for this project. However, this acquisition will assist ASM in operating and growing other PIP projects.
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·
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As of the first day of EMPLOYEE's employment, MEEMEE shall pay One Hundred Percent (100%) of the reasonable cost of private health insurance for Employee and his spouse, provided, however, that any premiums above $1,000.00 / month shall be subject to the sole discretion of the Board; provided, however, that if MEEMEE establishes a company health insurance plan, then EMPLOYEE shall participate in such plan in lieu of MEEMEE paying his private health insurance premiums.
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·
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As of the first day of EMPLOYEE's employment, MEEMEE shall pay Seventy-Five Percent (75%) of the reasonable cost of private dental coverage and vision coverage for Employee to a maximum of $250 / month, provided, however, that if MEEMEE establishes a company dental and/or visual coverage plan, then EMPLOYEE shall participate in such plan in lieu of MEEMEE paying his private premiums.
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·
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MEEMEE shall pay 100% of the premiums for life insurance in the amount of $150,000 or one times (1x) EMPLOYEE's then-existing Base Salary, whichever is greater.
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·
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If MEEMEE establishes a disability insurance plan, MEEMEE will pay 100% of EMPLOYEE's premiums for short-term and/or long-term disability coverage, but EMPLOYEE will be responsible for paying the applicable taxes on the premium payments.
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·
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If MEEMEE establishes a 401(K) Program, EMPLOYEE will be eligible to participate subject to the terms of that program. MEEMEE will match EMPLOYEE's contributions dollar-for-dollar up to four percent (4%) of Employee's then-existing Base Salary, not inclusive of any bonuses.
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·
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MEEMEE shall provide EMPLOYEE with an automobile allowance of Three Hundred Dollars ($300.00) per month.
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·
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MEEMEE shall provide EMPLOYEE with a cable, internet, phone, cell phone allowance of Three Hundred Dollars ($300.00) per month.
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·
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EMPLOYEE is eligible to take the following paid time off per calendar year: twenty (20) vacation days ("PTO"), ten (10) holidays generally observed by MEEMEE in the United States in accordance with the holiday policy established by MEEMEE from time to time, seven (7) sick days and three (3) bereavement days. Unused time off for holidays, sick days and bereavement days may not be carried over into the following year. Unused vacation days may be carried over to the following year, provided, however, that EMPLOYEE may not accrue more than twenty (20) days of unused vacation days without written authorization of MEEMEE. If EMPLOYEE accrues twenty (20) unused vacation days, then he may not earn any additional vacation days until his "bank" of PTO falls below twenty. PTO, sick and bereavement will be pro-rated during EMPLOYEE's first year of employment. Vacation days are earned and accrued on a quarterly basis, with five vacation days accruing for each quarter, but the foregoing shall not prevent EMPLOYEE from using vacation days that will accrue during the same calendar year assuming EMPLOYEE's continued employment. All vacation days shall be taken on no less than thirty (30) days written notice to the Board and subject to the Board's approval, not to be unreasonably withheld.
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·
|
EMPLOYEE shall be reimbursed for all normal items of travel, entertainment and miscellaneous expenses reasonably incurred by him on behalf of MEEMEE, provided that such expenses are documented and submitted to MEEMEE in accordance with the reimbursement policies established by MEEMEE from time to time.
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DEBTOR
All Screens Media, LLC
|
||||
By:
|
/s/ Peter Heumiller
|
|||
Peter Heumiller, Managing Member
|
||||
HOLDER
MeeMee Media, Inc.
|
||||
By:
|
/s/ Martin Doane
|
|||
Martin J. Doane, Executive Chairman
|
DEBTOR
ALL SCREENS MEDIA, LLC
|
||||
By:
|
/s/ Peter Heumiller
|
|||
Peter Heumiller, Managing Member
|
||||
SECURED PARTY:
MeeMee Media, Inc.
|
||||
By:
|
/s/ Martin Doane
|
|||
Martin J. Doane, Executive Chairman
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(i)
|
a merger or consolidation in which securities possessing more than fifty percent (50%) of the total combined voting power of the Corporation's outstanding securities are transferred to a person or persons different from the persons holding those securities immediately prior to such transaction, or
|
(ii)
|
the sale, transfer or other disposition of all or substantially all of the Corporation's assets in complete liquidation or dissolution of the Corporation.
|
(i)
|
If the Common Stock is at the time traded on the Financial Industry Regulatory Authority's (FINRA) OTC Marketplace then the Fair Market Value shall be the closing selling price per share of Common Stock on the date in question in the over-the-counter market that is reported by the OTCQX, OTCQB or pink
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(ii)
|
If the Common Stock is at the time listed on any Stock Exchange, then the Fair Market Value shall be the closing selling price per share of Common Stock on the date in question on the Stock Exchange determined by the Plan Administrator to be the primary market for the Common Stock, as such price is officially quoted in the composite tape of transactions on such exchange. If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists.
|
(iii)
|
If the Common Stock is at the time neither listed on any Stock Exchange nor traded on the Nasdaq National Market, nor quoted on the OTCQX, nor quoted on the OTCQB, nor quoted on the pink sheets then the Fair Market Value shall be determined by the Plan Administrator after taking into account such factors as the Plan Administrator shall deem appropriate including the pricing of any recent capital raising the company has completed or is proposed to complete.
|
(i)
|
such individual's involuntary dismissal or discharge by the Corporation for reasons other than Misconduct, or
|
(ii)
|
such individual's voluntary resignation following (A) a change in his or her position with the Corporation which materially reduces his or her level of responsibility, (B) a reduction in his or her level of compensation (including base salary, fringe benefits and target bonuses under any corporate‑performance based bonus or incentive programs) by more than fifteen percent (15%) or (C) a relocation of such individual's place of employment by more than fifty (50) miles, provided and only if such change, reduction or relocation is effected without the individual's consent.
|