Exhibit
10.1


 


EXECUTION
COPY


 


THIS AGREEMENT IS SUBJECT TO ARBITRATION


 


	
  STATE OF
  FLORIDA

  	
  §

  
	
   

  	
  §

  
	
  COUNTY OF
  PALM BEACH

  	
  §

  



 


EMPLOYMENT AGREEMENT


 


THIS
EMPLOYMENT AGREEMENT is made and entered into as of the 2nd day of
November, 2007, but effective as of the 1st day of September, 2007, by
and between DG FastChannel, Inc., a Delaware corporation (the “Company”),
and Pamela Maythenyi (the “Employee”).


 


WHEREAS, the
Company desires to extend the employment relationship with the Employee on
certain terms and conditions as set forth herein, which employment relationship
was previously on the terms and conditions set forth in that certain Employment
Agreement dated August 31, 2004 between the Company and the Employee; and


 


WHEREAS, the
Employee is willing to accept such continued employment;


 


NOW,
THEREFORE, the parties hereto, in consideration of the mutual covenants and
promises hereinafter contained, do hereby agree as follows:


 


1.                                       Employment.
The Company hereby employs Employee and Employee hereby accepts employment by
the Company, on the terms and subject to the conditions hereinafter set forth.


 


2.                                       Duties.
The Employee’s principal duties and responsibilities shall be those duties
assigned to Employee from time to time by the Chief Executive Officer or Chief
Financial Officer of the Company, or such other persons specified by such
officers, provided such duties and responsibilities are commensurate with
Employee’s title as Senior Vice President. Employee agrees to perform such
services and duties and hold such offices as may be assigned to her from time
to time by the Company and to devote substantially her full time, energies and
best efforts to the performance thereof to the exclusion of all other business
activities. Notwithstanding the foregoing, the Company agrees that Employee
shall be permitted to attend approximately five meetings per year on behalf of
Heads of Production Associates, Inc., a Florida corporation owned in part by
Employee, at the Company’s expense.


 

















 


3.                                       Term.
The term of employment under this Agreement shall begin on the effective date
hereof and continue until terminated as herein provided.


 


4.                                       Salary
and Other Compensation. As compensation for the services to be rendered by
the Employee to the Company pursuant to this Agreement, the Employee shall be
paid the following compensation and other benefits:


 


(a)                                  Salary:  (i) $195,000 from the effective date hereof
until the first anniversary of the effective date hereof, (ii) $210,000 from
the first anniversary until the second anniversary of the effective date
hereof, and (iii) $220,000 from the second anniversary until the third
anniversary of the effective date hereof, each payable in equal monthly
installments in arrears, or such higher compensation as may be established by
the Company from time to time. Should the Employee become “Partially Disabled,”
which for purposes of this subsection means the inability because of any
physical or emotional illness to perform her assigned duties under this
Agreement for 40 hours per week, the Employee’s salary shall be adjusted based
on the percentage of a 40-hour work week during which Employee is able to
perform her duties. If the Employee, during any period of Partial Disability,
receives any periodic payments representing lost compensation under any health
and accident policy or under any salary continuation insurance policy, the
premiums for which have been paid by the Company, the amount of salary that the
Employee would be entitled to receive from the Company during the Partial
Disability shall be decreased by the amounts of such payments. Sick days taken
by Employee in accordance with the Company’s sick day policies for its other
employees shall not be considered a Partial Disability.


 


(b)                                 Bonus:  Employee shall be eligible to receive an
annual bonus in an amount equal to $30,000 multiplied by the percentage of
budgeted revenues actually obtained by the Company (or the division or
subsidiary of the Company to which Employee devotes most of her time); provided, however, Employee shall not be
entitled to any bonus if the percentage of budgeted revenues actually obtained
is less than 60%. The parties agree to negotiate in good faith the
budgeted revenues for each year during the term hereof. Employee shall be
eligible for an additional annual bonus in an amount of $15,000 per year,
provided the Company (or the division or subsidiary of the Company to which
Employee devotes most of her time) exceeds such budgeted revenues.


 


(c)                                  Stock
Incentive Plans:  The Employee shall be
eligible to participate in the Company’s stock incentive plans, subject to
approval of the Compensation Committee (or other applicable committee) of the
Board of Directors, and subject to any limitation as may be provided by
applicable law or regulation.


 


(d)                                 Car
Allowance:  The Company shall pay to the
Employee a car allowance in an amount equal to $500 per month during the term
of employment under this Agreement.


 


(e)                                  Employee
Benefit Plans:  The Employee shall be
eligible to participate, to the extent she may be eligible, in any profit sharing,
retirement, insurance or other employee benefit plan maintained by the Company.


 


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5.                                       Vacations
and Leave. The Employee shall be entitled to the same vacation and leave
time as the other employees of the Company performing similar functions. At a
minimum, Employee shall be entitled to not less than four weeks paid vacation.


 


6.                                       Non-Disclosure
of Confidential Information. The Employee acknowledges that in and as a
result of her employment by the Company, she will be making use of, acquiring,
and/or adding to confidential information of a special and unique nature and
value relating to such matters as the Company’s patents, copyrights,
proprietary information, trade secrets, systems, procedures, manuals, confidential
reports, and lists of customers (which are deemed for all purposes confidential
and proprietary), as well as the nature and type of services rendered by the
Company, the equipment and methods used and preferred by the Company’s
customers, and the fees paid by them. As a material inducement to the Company
to enter into this Agreement and to pay to Employee the compensation stated in
Section 4, Employee covenants and agrees that she shall not, at any time during
or following the term of her employment, directly or indirectly divulge or
disclose for any purpose whatsoever any confidential information that has been
obtained by, or disclosed to, her as a result of her employment by the Company.


 


7.                                       Covenants
Against Competition. The Employee acknowledges that the services she is to
render are of a special and unusual character with a unique value to the
Company, the loss of which cannot adequately be compensated by damages in
action at law. In view of the unique value to the Company of the services of
Employee because of the confidential information to be obtained by or disclosed
to Employee, as hereinabove set forth, and as a material inducement to the
Company to enter into this Agreement and to pay to Employee the compensation
stated in Section 4, Employee covenants and agrees that during Employee’s
employment and for a period of four years after she ceases to be employed by
the Company for any reason, she will not, except as otherwise authorized by
this Agreement, compete with the Company or any affiliate of the Company,
solicit the Company’s customers or the customers of any affiliate or directly
or indirectly solicit for employment any of the Company’s employees. Notwithstanding
the foregoing, Employee shall have the right to be employed by, or provide
consulting services to, an advertising agency so long as such employment or
consulting services do not relate to advertising and production database
information services. Furthermore, the restrictive covenants set forth in this
Section 7 shall be void and inapplicable in the event this Agreement is
terminated by Employee due to a material breach by the Company that is not
remedied within thirty (30) days after written notice thereof. For purposes of
this Section:


 


(a)                                  the
term “compete” means engaging in the same or any substantially similar business
as the Company or any of its affiliates in any manner whatsoever (other than as
a passive investor), including without limitation, as a proprietor, partner,
investor, shareholder, director, officer, employee, consultant, independent
contractor, or otherwise;


 


(b)                                 the
term “affiliate” means any legal entity that directly or indirectly through one
or more intermediaries controls, is controlled by, or is under the common
control with the Company; and


 


(c)                                  the
term “customers” means all persons to whom the Company or any of its affiliates
has sold any product or service whether or not for compensation within a period
of five years prior to the time Employee ceases to be employed by the Company.


 


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8.                                       Reasonableness
of Restrictions


 


(a)                                  The
Employee has carefully read and considered the provisions of Sections 6 and 7,
and, having done so, agrees that the restrictions set forth in these sections,
including, but not limited to, the time period of restriction and geographical
areas of restriction are fair and reasonable and are reasonably required for
the protection of the interests of the Company and its parent or subsidiary
companies, officers, directors, shareholders and other Employees.


 


(b)                                 In
the event that, notwithstanding the foregoing, any of the provisions of
Sections 6 and 7 shall be held to be invalid or unenforceable, the remaining
provisions thereof shall nevertheless continue to be valid and enforceable as though
the invalid or unenforceable parts had not been included therein. In the event
that any provision of Sections 6 or 7 relating to the time period and/or the
areas of restriction and/or related aspects shall be declared by a court of
competent jurisdiction to exceed the maximum restrictiveness such court deems
reasonable and enforceable, the time period and/or areas of restriction and/or
related aspects deemed reasonable and enforceable by the court shall become and
thereafter be the maximum restriction in such regard, and the restriction shall
remain enforceable to the fullest extent deemed reasonable by such court.


 


9.                                       Remedies
for Breach of Employee’s Covenants of Non-Disclosure and Noncompetition. In
the event of a breach of any of the covenants in Sections 6 and 7, the Company
shall have the right to seek monetary damages for any such breach. In addition,
in the event of a breach or threatened breach of any of the covenants in
Section 6 and 7, the Company shall have the right to seek equitable relief,
including specific performance by means of an injunction against the Employee
or against the Employee’s partners, agents, representatives, servants,
employers, employees, family members and/or any and all persons acting directly
or indirectly by or with her, to prevent or restrain any such breach.


 


10.                                 Termination.
Employment of the Employee under this Agreement may/will be terminated:


 


(a)                                  By
the Employee’s death.


 


(b)                                 If
the Employee is Totally Disabled. For the purposes of this Agreement, the
Employee will be totally disabled if she is “totally disabled” as defined in
and for the period necessary to qualify for benefits under any disability
income insurance policy and any replacement policy or policies covering
Employee and the Employee has been declared to be totally disabled by the
insurer for a period of three consecutive months.


 


(c)                                  When
the Employee reaches mandatory retirement age under any retirement policy
applicable to Employee.


 


(d)                                 By
mutual agreement of the Employee and the Company.


 


(e)                                  By
the dissolution and liquidation of the Company (other than as part of a
reorganization, merger, consolidation or sale of all or substantially all of
the assets of the


 


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Company
whereby the business of the Company is continued). In such event, the
restrictive covenants in Section 7 above shall be inapplicable with respect to
Employee.


 


(f)                                    By
the Company for Just Cause. This Agreement and the Employee’s employment with
the Company may be terminated for “Just Cause” at any time in accordance with
subsection (h) of this section. For purposes of this Agreement, Just Cause
shall mean only the following:  (i) a
conviction of or a plea of guilty or nolo
contendre by the Employee to a felony or misdemeanor involving fraud,
embezzlement, theft or dishonesty or other criminal conduct, (ii) habitual
neglect of the Employee’s duties or failure by the Employee to perform or
observe any substantial lawful obligation of such employment that is not
remedied within thirty (30) days after written notice thereof from the Company
or its Board of Directors or (iii) any material breach by the Employee of this
Agreement or written policies of the Company applicable to employees generally
that can be remedied and is not remedied within thirty (30) days after written
notice thereof from the Company or its Board of Directors. Should the Employee
dispute whether she was terminated for Just Cause, then the Company and the
Employee shall enter immediately into binding arbitration pursuant to the
Commercial Arbitration Rules of the American Arbitration Association, the cost
of which shall be the non-prevailing party.


 


(g)                                 At
the election of the Employee upon six months advance notice or upon material
breach of the terms hereof by the Company.


 


(h)                                 Notice
of Termination. Any purported termination by the Employee’s employment, either
by the Company for Just Cause or by the Employee pursuant to Section 10(g),
shall be communicated by a written Notice of Termination to the other party
hereto. Such notice shall indicate a specific termination provision in this
Agreement which is relied upon, recite the facts and circumstances claimed to
provide the basis for such termination and specify the “Date of Termination.”  As used in this Agreement, Date of Termination
shall mean the date specified in the Notice of Termination, which date shall
not be less than thirty (30) nor more than sixty (60) days from the date the
Notice of Termination is given. If within thirty (30) days from the date the
Notice of Termination is given, the party receiving such notice notifies the
other party that a dispute exists concerning such termination, the Date of
Termination shall be the date on which the dispute is finally resolved. The
Date of Termination shall be extended by a notice of dispute only if such
notice is given in good faith and the party giving such notice pursues the
resolution of such dispute by entering immediately into binding arbitration
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association, the cost of which shall be borne by the non-prevailing party.


 


(i)                                     At
the end of three years from the effective date hereof.


 


(j)                                     In
the event Employee’s employment is terminated by the Company without Just Cause,
or for any reason not covered by subsections 10(a) through 10(g) above, the
Company shall pay to Employee the amount otherwise payable to Employee for the
remainder of the term this Agreement in accordance with Employer’s normal
payroll practices as though Employee were employed by the Company through the
end of such term. Furthermore, the restrictive covenants in Section 7 shall
become inapplicable.


 


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11.                                 Payments
Upon Termination. If the Employee is terminated upon death pursuant to 10(a),
Total Disability pursuant to Section 10(b), retirement pursuant to
Section 10(c), mutual agreement of Employer and Employee pursuant to
Section 10(d), dissolution and liquidation of the Company pursuant to
Section 10(e), Just Cause pursuant to Section 10(f), at Employee’s
election pursuant to Section 10(g), or time certain pursuant to
Section 10(i), the Employee shall be entitled to all arrearages of salary
and expenses as of the Date of Termination but shall not be entitled to further
compensation.


 


12.                                 Resignation
Upon Termination. In the event of termination of this Agreement other than
for death, the Employee hereby agrees to resign from all positions held in the
Company, including without limitations any position as a director, officer,
agent, trustee or consultant of the Company or any affiliate of the Company. For
the purposes of this provision, the term “affiliate” has the same meaning as in
Section 7.


 


13.                                 Waiver.
A party’s failure to insist on compliance or enforcement of any provision of
this Agreement, shall not affect the validity or enforceability or constitute a
waiver of future enforcement of that provision or of any other provision of
this Agreement by that party or any other party.


 


14.                                 Governing
Law. This Agreement shall in all respects be subject to, and governed by,
the laws of the State of Florida. Venue for any litigation or arbitration
arising out of this Agreement shall be proper only in Palm Beach County,
Florida. The parties hereto hereby consent to the personal jurisdiction of the
state and Federal courts situated in Palm Beach County, Florida.


 


15.                                 Severability.
The invalidity or unenforceability of any provision in the Agreement shall not
in any way affect the validity or enforceability of any other provision, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision had never been in the Agreement.


 


16.                                 Notice.
Any and all notices required or permitted herein shall be deemed delivered if
delivered personally or if mailed by registered or certified mail to the
Company at its principal place of business and to the Employee at the address
hereinafter set forth following the Employee’s signature, or at such other
address or addresses as either party may hereafter designate in writing to the
other.


 


17.                                 Amendments.
This Agreement may be amended at any time by mutual consent of the parties
hereto, with any such amendment to be invalid unless in writing, signed by the
Company and the Employee.


 


18.                                 Entire
Agreement. This Agreement, along with the Company handbook to the extent it
does not specifically conflict with any provision of this Agreement, contains
the entire agreement and understanding by and between the Employee and the
Company with respect to the employment of the Employee, and no representations,
promises, agreements, or understandings, written or oral, relating to the
employment of the Employee by the Company not contained herein shall be of any
force or effect.


 


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19.                                 Burden
and Benefit. This Agreement shall be binding upon, and shall inure to the
benefit of, the Company and Employee, and their respective heirs, personal and
legal representatives, successors, and assigns.


 


20.                                 References
to Gender and Number Terms. In construing this Agreement, feminine or
number pronouns shall be substituted for those masculine in form and vice
versa, and plural terms shall be substituted for singular and singular for
plural in any place which the context so requires.


 


21.                                 Headings.
The various headings in this Agreement are inserted for convenience only and
are not part of the Agreement.


 


22.                                 Assignment.
This Agreement is not assignable by either party without the prior written
consent of the other party.


 


[REMAINDER
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IN WITNESS
WHEREOF, the Company and Employee have duly executed this Agreement as of the
day and year first above written.


 


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  DG
  FASTCHANNEL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Omar A. Choucair

  
	
   

  	
   

  	
  Omar A
  Choucair

  
	
   

  	
   

  	
  Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice Purposes:

  	
   

  
	
   

  	
   

  
	
  DG
  FastChannel, Inc.

  	
   

  
	
  750 West
  John Carpenter Freeway

  	
   

  
	
  Suite 700

  	
   

  
	
  Irving,
  Texas 75039

  	
   

  
	
  Attention:  Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  /s/ PAMELA MAYTHENYI

  
	
   

  	
  PAMELA
  MAYTHENYI