exv10w4



 



Exhibit 10.4




EMPLOYMENT AGREEMENT



     
This Agreement is made by and between NGTV, INC., a California
Company (“Company”), and RICHARD DAVID
(“Executive”).



     
The parties agree as follows:




1. Employment. The Company hereby employs the
Executive and the Executive hereby accepts employment by the
Company to serve initially as its Senior Vice President, Finance
and Administration, including head of Human Resources. During
the Term, the Executive will devote to the business and affairs
of the Company his full employment time, efforts, and attention.




2. Duties and Authority. Executive shall, at this
time and until further notice, have reporting responsibilities
to both the Chief Executive Officer, Allan Brown and the
Co-President Jay Vir
and shall work with senior management to perform all duties
typically related to the position of Senior Vice President,
Finance and Administration, including the oversight and
responsibility of the overall financial and administrative
requirements of the Company, establishment and maintenance of
the Company’s financial controls; oversight of the
Company’s Human Resources function, corporate and health
insurance policies, payroll and benefits plans; production of
timely financial statements, tax returns, budgets and other
critical financial information. Executive shall use his best
reasonable efforts to carry out such duties for the Company.




3. Compensation.




a. Base Compensation: Beginning March 14, 2005,
Executive shall be paid the sum of $180,000 (One-Hundred and
Eighty Thousand Dollars) per annum, payable in equal bi-weekly
installments in accordance with the Company’s normal pay
practices. No later than March 13, 2006, Executive’s
salary shall be reviewed and increased as warranted, but by no
less than 5%. In addition to the base compensation, Executive
shall be entitled to receive bonuses at the discretion of
Management.




b. Other Compensation: The Company acknowledges that
a bonus of $55,000 (Fifty-Five Thousand Dollars) is currently
due and payable to the Executive for significant contribution to
the company over the prior twelve months, 50% of which is to be
paid on July 31, 2005 with the remaining 50% to be paid on
January 15, 2006. In the event of termination of this
Agreement, for any reason, the remaining unpaid balance of this,
as well as any other unpaid compensation, will be immediately
due and payable to Executive.




 



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c.  Stock
Options. Executive shall be entitled to options to acquire
shares of the Common Stock of the Company pursuant to the terms of
the Company’s Equity Incentive Plan(s) or other means available
for the issuance of such options.



 i.  The
Company acknowledges that in addition to the stock options previously
issued to Executive in 2004, Executive is due an additional amount of
stock options, commensurate with the senior nature of his position
within the company, and that these options are pending eminent
issuance to the Executive, pursuant to appropriate approvals by the
NGTV Board of Directors. The number of these options to be issued
shall be no less than 1,000,000 shares (the “Minimum Number of Options”), which shall vest
1/24 for each month
during the term of this agreement. The Company further agrees that
all of the options shall have an exercise price of $0.18, and shall
be fully vested upon (i) receipt of gross financing proceeds of
$15 million by the Company and (ii) the exchange of Company
shares and options with a publicly traded entity, pursuant to a
merger or a reverse merger transaction.



ii.  Executive
shall be issued a least the Minimum Number of Options, fully vested,
upon the following events: (a) the termination of Executive
without cause, or (b) the acquisition of the Company by merger,
sale or transfer, or (c) a transfer of controlling interest of
the Company’s assets, or (d) other significant
reorganization or change in control.



d.  Deductions
and Withholding. All payments by the Company to the Executive
will be subject to such deductions and withholdings as are from time
to time required to be made pursuant to law, government regulation or
order, and by agreement with or consent of the Executive. Company
shall make payment of all amounts withheld to the appropriate
governmental agencies as required by law.



4.  Term.
The term of this agreement and of the Executive’s employment
hereunder is for a period of two years commencing on March 14,
2005 and will continue through March 10, 2007, unless sooner
terminated by the Company for one of the causes of termination set
forth below (such period being hereinafter referred to as the
“Term”).



5.  Fringe
Benefits and Reimbursements.



a.  Insurance
and other Benefit Plans. During the term of this Agreement,
Executive shall be entitled to participate in the Company’s
insurance and other benefit plans



 










 




as they may exist from time to time on the same basis as is
generally offered by the Company for senior executives.




b.     Vacations. The
Executive will be entitled to a minimum of three weeks paid
vacation during each year covered by this Agreement in
accordance with the Company’s vacation policy.




c.     Automobile. In
the event that the Company extends to senior executives the use
of Company supplied automobiles, or automobile allowances,
Executive shall be entitled to the use of a company supplied
automobile, or a similar automobile allowance, commensurate to
the level of his position.




d.     Business Expense
Reimbursement. The Executive
will be entitled to reimbursement by the Company for the
reasonable business expense paid by him on behalf of the Company
in the course of his employment hereunder on presentation to the
Company of appropriate vouchers (accompanied by receipts or paid
bills) setting forth information sufficient for the Company to
establish that such expense is, a) within the
Company’s guidelines and policies and b) deductible
under Treasury Regulations
Section 1.162-17
(dealing with required substantiation of business expenses). Any
individual item of expense in excess of $1,500 shall require the
advance written approval of the officer of the Company to whom
Executive reports.




6.     Insurance and
Indemnity. Executive shall be
entitled to coverage under Directors and Officers insurance
providing reasonable limits and reasonable coverage for his
activities. In addition, the Company shall hold Executive
harmless, and indemnify him against any loss, liability, damage,
or costs or fees (including, but not limited to attorney fees,)
suits, actions, claims, or investigations arising out of, or in
connection with his employment by the Company; provided however,
that if a court of competent jurisdiction issues a final,
non-appealable judgment holding that Executive breached any of
his obligations under this agreement, and that such breach was
in bad faith, then Executive shall reimburse the Company for any
defense costs that the Company has paid on his behalf.




7.     Representations. The
Executive hereby represents and warrants that (1) he has
the right to enter into this Agreement with the Company and to
grant the rights contained herein, (2) the provisions of
this Agreement do not violate any other contracts or agreements
that he has entered into with any other individual or entity or
any other contract or agreements by which he is bound,
(3) this Agreement constitutes the legal, valid, and
binding obligation of the Executive, enforceable against the
Executive in accordance with its terms.




8.     Termination. The
Executive’s employment hereunder




 







 



may be terminated by the Company under the circumstances set
forth below:




a. expiration of term.




b. upon the Executive’s death.




c. upon the Executive’s total disability (total
disability meaning the inability of the Executive to perform
substantially all of his current duties as required hereunder
for a continuous period of one hundred eighty (180) days because
of mental or physical condition, illness or injury).




d. for “Good Cause”. “Good Cause” shall
mean:




(1) the Executive is convicted of any felony or a crime
involving theft, fraud, or moral turpitude;




(2) the Executive habitually engages in the immoderate use
of alcoholic beverages or engages in the illegal use of a
controlled substance;




(3) in the event of the Executive’s fraud or
embezzlement;




(4) the Executive materially breaches any representation or
warranty in this Agreement.




e. “Without Cause”. The Company may terminate
Executive’s employment hereunder at any time without cause,
provided, however, that Executive shall be entitled to severance
pay in the amount of the lesser of one year’s salary owed
under the term of this Agreement, plus any accrued vacation and
unpaid compensation, bonuses and other reimbursements, as well
as any and all unissued stock options to be granted under the
Agreement, or the remaining balance of Base Salary plus any
accrued vacation and unpaid bonuses and other reimbursements, as
well as any and all unissued stock options to be granted under
this Agreement.




9. Notices. A notice to the Company or the Executive
hereunder will be sufficient if in writing and delivered
personally or sent by certified mail to their last known address
and shall be deemed to have been given on receipt, if delivered
personally, or three days after mailing, if mailed.




10. Integration and Amendment. This Agreement
constitutes the entire understanding between the Company and the
Executive




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relating to the subject matter hereof, and neither this
agreement nor any of the provisions hereof can be changed or
discharged orally. All prior agreements and understandings
relating to Executive’s employment by the Company are
hereby superseded and canceled.




11.     Applicable Law. This
Agreement has been executed in the State of California and all
questions pertaining to its validity, construction, and
administration shall be determined in accordance with the
internal laws of that state.




12.     Invalidity of Provision.
In the event that any provision of this Agreement is determined
to be illegal, invalid, or void for any reason, the remaining
provisions hereof will not be affected thereby and shall
continue in full force and effect.




13.     Section Headings. The
section headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or
interpretation of the provisions of this Agreement.




14.     Attorney’s Fees and
Costs. In any proceeding to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to
reasonable attorney’s fees and costs, and necessary
disbursements in addition to any other relief to which he or it
may be entitled. The parties agree to make the best efforts to
settle any disputes through State of California sanctioned
Arbitration.



 







 




Richard David Employment Agreement


     IN WITNESS
WHEREOF, the parties have hereunto executed or caused this Agreement
to be executed on the day and year first above written.




NGTV, INC.

a California Company



	 	 	 	 	 
	By	 	[ILLEGIBLE SIG]	 	3/14/05
	 	 	 	 	Date
	 	 	 	 	 
	 	 	[ILLEGIBLE SIG]	 	3/14/05
	 	 	 	 	Date
	 	 	 	 	 
	 	 	 	 	 
	EXECUTIVE
	 	 	 	 	 
	 	 	 	 	 
	 	 	/s/ Richard David	 	March 14, 2005
	 	 	Richard David	 	Date