Private Media Group (PRVT)

4. Termination.

4.1. Definitions. As used herein, the following terms shall have the following meanings:

4.1.1. “Notice of Termination” means a written notice specifying the termination provision in this Agreement relied upon.

4.1.2. “Date of Termination” means (i) where termination is due to the death of the Employee, the date of death, or (ii) the earlier of the date specified in the Notice of Termination or the last day Employee is employed by the Company, as the case may be.

4.1.3. “Cause” means that Employee has (i) breached any fiduciary duty or material legal or contractual obligation to the Company (including any Affiliate), which breach is not cured within thirty (30) days after notice to the Employee thereof or, if cured, such conduct recurs (it being agreed that such cure right for any particular conduct shall only be available once during the Initial Term and each Renewal Term), (ii) failed to perform satisfactorily Employee’s material job duties or to follow any material reasonable directive of the Chief Operating Officer of the Private Group or the Board of Directors of Private, which failure is not cured within thirty (30) days after notice to Employee thereof or, if cured, such conduct recurs (it being agreed that such cure right for any particular conduct shall only be available once during the Initial Term and each Renewal Term), (iii) engaged in gross negligence, gross insubordination, willful misconduct, fraud, embezzlement, acts of material dishonesty or a conflict of interest (without the prior, informed written consent of Private), in any such case relating to the affairs of the Company or any of its Affiliates, or (iv) been convicted of or pleaded no contest to (A) any misdemeanor relating to the affairs of the Company or any of its Affiliates or (B) any felony, unless in either case (1) the felony or misdemeanor involved actions or omissions of Employee in the ordinary course of the Private Group’s business, and (2) Employee was acting in good faith and what he reasonably believed to be the best interests of the Private Group.

4.1.4. “Good Reason” means Employee’s voluntary termination within thirty (30) days following the occurrence of one or more of the following: (i) a material diminution Employee’s authority, duties, reporting structure or responsibilities that is not remedied by the Company within 30 days after receipt of notice thereof given by Employee, or (ii) a material breach of this Agreement by the Company, which breach is not cured within thirty (30) days after notice thereof given by Employee, or (iii) a change by the Company in the geographical location at which Employee must provide the services described in this Agreement by more than twenty-five (25) miles from his current location in San Francisco, California, excluding reasonable travel.

4.1.5. “Disability” means illness (mental or physical) or accident, which results in Employee being unable to perform Employee’s duties as an employee of the Company on a full time basis, for a period of sixty (60) consecutive days, or one hundred twenty (120) days, whether or not consecutive, in any twelve month period. In the event of a dispute as to whether Employee is Disabled, the Company may refer the same to a mutually acceptable licensed practicing physician, whose written report shall be final and binding upon the parties, and Employee agrees to submit to such tests and examination as such physician shall deem appropriate. If Employee fails or refuses for any reason to promptly submit to any examination requested by such physician, then Employee shall be considered to be Disabled.

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4.2. General. Employee’s employment with the Company may be terminated at any time by the Company with Cause or in the event of the Disability of Employee, effective (except in the event of Employee’s death) immediately upon receipt by Employee of written Notice of Termination or upon such other date specified in such Notice of Termination. Employee’s employment shall automatically terminate upon his death. Employee may resign for Good Reason after at least thirty (30) days prior written Notice of Termination thereof from Employee to the Company.

4.3. Effects of Termination. If the Company terminates the Employee’s employment during the Initial Term of the Agreement other than for Cause, or if Employee terminates his employment with the Company for Good Reason, the Company shall pay to Employee (a) any and all Base Salary, accrued vacation and expense reimbursement that had accrued but had not been paid prior to the Date of Termination, which amounts shall be paid promptly after the Date of Termination, (b) an amount equal to Employee’s monthly Base Salary multiplied by the remaining number of whole months left in the Initial Term, which amount shall be paid in monthly installments consistent with how the Company historically pays Employee’s Base Salary, and (c) the cost of premiums to continue health insurance coverage for Employee and his dependents under COBRA (provided that Employee is eligible and timely elects COBRA coverage) during the remaining Initial Term, payable monthly as and when incurred by Employee, and otherwise the Company shall have no further obligation to make any payments or provide any benefits to Employee hereunder after the Date of Termination; provided however, that no portion of the amounts set forth in clause (b) above shall become payable before a Separation from Service occurs. As used herein, a “Separation from Service” occurs when Employee dies, retires, or otherwise has a termination of employment with Company that constitutes a “separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h)(1), without regard to the optional alternative definitions available thereunder. If Employee’s employment is terminated for any other reason, the Company shall have no further obligation to make any payments or provide any benefits to Employee hereunder after the Date of Termination except for payments of Base Salary and expense reimbursement that had accrued but had not been paid prior to the Date of Termination, less all deductions or offsets for amounts owed by Employee to the Company.

4.4. Procedure upon Termination. On termination of employment regardless of the reason, Employee (or his heirs, representatives or estate as the case may be) shall promptly return to the Company all documents (including copies) and other property containing or disclosing Confidential Information, including customer lists, manuals, letters, materials, reports and records in Employee’s possession or control no matter from whom or in what manner acquired.