EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (“Agreement”) made effective as of the 23rd day of August, 2000, by and between NetRadio Corporation, a Minnesota corporation (“Company”) and Xxxxxxx Xxxxxx (“Executive”).
WHEREAS, the Company desires to employ the Executive on the terms set forth in this Agreement.
3. Compensation. During the Employment Period, Executive’s compensation shall be as follows:
2
4. Termination. This Agreement may be terminated as follows:
(i) | Refusal of the Executive to perform the Executive’s reasonable duties hereunder or substantial and habitual neglect by Executive of his obligations under this Agreement which is not remedied by Executive within sixty (60) days after his receipt of written notice; | ||
(ii) | (ii) Gross misconduct of Executive which is materially detrimental to the Company; | ||
(iii) | Any fraud, theft or embezzlement by Executive of the Company’s assets; or | ||
(iv) | The commission of any other unlawful or criminal act which is punishable as a felony, or any crime involving dishonesty |
4.2. Death. Subject to the provisions of Section 5, this Agreement shall terminate upon Executive’s death. |
(i) | Executive is removed without his consent as Chief Technology Officer of the Company and such removal is not pursuant to Section 4.1 hereof; |
3
(ii) | Executive’s duties as Chief Technology Officer are reduced to such an extent as to constitute a constructive removal of Executive from the position of Chief Technology Officer; or | ||
(iii) | The Company requires Executive to be based anywhere other than within 50 miles of the Minneapolis/ St. Xxxx, Minnesota metropolitan statistical area, except for required travel on the Company’s business to an extent substantially consistent with the business travel obligations which Executive has typically undertaken on behalf of Company prior to the date of this Agreement |
5. Consequences of Termination of Agreement.
5.1. Death. In the event that this Agreement is terminated due to Executive’s death, Executive’s estate shall be paid in addition to any amount due Executive under any other document or agreement with the Company: |
(i) | His base salary through the end of the month in which his death occurred; | ||
(ii) | Any commissions owing to Executive for sales which were made prior to the time of death, to be paid in accordance with paragraph 3.3 of this Agreement; | ||
(iii) | His accrued but unpaid vacation days for the year in which his death occurred; and | ||
(iv) | Any unpaid expense reimbursement |
5.2. Total Disability. In the event that this Agreement is terminated due to Executive’s Total Disability, Executive shall receive: |
(i) | His base salary through the end of the sixth (6th) month which defines the Total Disability; | ||
(ii) | Any commissions owing to Executive for sales which were made prior to the end of the sixth (6th) month which defines the Total Disability, to be paid in accordance with paragraph 3.3 of this Agreement; | ||
(iii) | His accrued but unpaid vacation days for the year in which such Total Disability occurred; | ||
(iv) | Any unpaid expense reimbursement; and |
4
(v) | Any restricted stock or stock options which are scheduled to vest prior to the end of the sixth (6th) month which defines the Total Disability shall vest as scheduled. |
5.3. Termination by the Company for Company Cause or by Executive Without Executive Cause. If Executive is terminated pursuant to Section 5.1 hereof, or if Executive voluntarily terminates his employment prior to the end of the Employment Period (and such termination is not pursuant to Section 5.5), the Company shall pay to Executive; |
(i) | His base salary through the termination date and commissions owing for sales which were made prior to the termination date to be paid in accordance with paragraph 3.3 of this Agreement; and | ||
(ii) | Any unpaid expense reimbursement. |
5.4. Termination by Executive for Executive Cause or by the Company Without Company Cause. If Executive terminates this Agreement for Executive Cause, or if the Company terminates this Agreement other than in accordance with Section 4.1 hereof, the Company shall pay or distribute to Executive; |
(i) | His base salary, bonus and any other payments or distributions to which, but for such termination, Executive would have been entitled under Section 3 hereof for the remaining term of the Employment Period, paid in regular installments according to the Company’s then current standard payroll practices; | ||
(ii) | Any commissions which, but for such termination, Executive would have been paid during the remainder of the Employment Period; | ||
(iii) | His accrued but unpaid vacation days through the date of termination; | ||
(iv) | Any unpaid expense reimbursement; and | ||
(v) | All unvested stock options or restricted stock previously granted to Executive shall immediately vest |
6. Change in Control.
6.1. Effect of Termination Due to Change in Control. If after or due to a “Change in Control” (as the term is defined below) and prior to the expiration of the Employment Period Executive’s employment is terminated for any reason, Executive is entitled to the following compensation and benefits: |
5
(i) | Executive will receive severance payments for the remainder of the Employment Period, in an amount equal to remaining salary and bonuses outlined in Paragraph 3 herein, with such payments to be made in the same manner as if Executive had remained employed hereunder; | ||
(ii) | All unvested stock options or restricted stock previously granted to Executive shall immediately vest; | ||
(iii) | Executive shall receive payment for his accrued but unpaid vacation days remaining for the Employment Period; and | ||
(iv) | Any unpaid expense reimbursements. |
6.2. Change in Control. For purposes of this Section 6.2, the term “Change in Control” shall mean (a) the sale, lease, exchange or other transfer of all or substantially all of the assets of the Company (in one transaction or in a series of related transactions) to a corporation that is not controlled by the Company, (b) the approval by the shareholders of the Company of any plan or proposal for the liquidation or dissolution of the Company, or (c) a Change in Control of the Company of a nature that would be required to be reported (assuming such event has not been previously reported) in response to Item 1(a) of the Current Report on Form 8-K, as in effect on the effective date of this Agreement, pursuant to Section 13 or 15(d) of the Exchange Act, whether or not the Company is then subject to such reporting requirement; provided, however, that, without limitation, such a Change in Control shall be deemed to have occurred at such time as (d) any person becomes, after the date of this Agreement, the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% or more of the combined voting power of the Company’s outstanding securities ordinarily having the right to vote at election of directors, or (e) individuals who constitute the board of directors of the Company on the date of this Agreement cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to the date of this Agreement whose election or nomination for election by the Company’s shareholders was approved by a vote of at least a majority of the directors comprising the board of directors of the Company on the date of this Agreement (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination) shall be, for the purposes of this clause (e), considered as though such person were a member of the board of directors of the Company on the date of this Agreement. |
7. Ownership of Properties; Confidentiality; Restrictive Covenants.
6
hardware, firmware and related documentation), content development, production and programming strategies, technical information pertaining to Company’s products and services including product data, product specifications, diagrams, flow charts, drawings, test results, processes, inventions, research projects and product development, trade secrets, customer lists and customer information, supplier lists and supplier information, purchasing techniques, advertising strategies, business policies, business plans, financial information including cost information, profits, sales information, accounting and unpublished financial information, methods of operation, marketing programs and methods, customer price lists, information concerning Company’s current and former employees including their compensation, strengths, weaknesses and skills, information submitted to Company by its customers, suppliers, employees, consultants or co-ventures, or any other confidential or secret information concerning the business and affairs of Company or any of its affiliates that is not generally known to the public (hereafter, collectively referred to as “Confidential Information”). |
7.4. Restrictive Covenants. During the term of Executive’s employment with Company, and for a period of six (6) months thereafter, Executive will not: |
(i) | Own, manage, operate or control, or participate in the ownership, management, operation or control of, or be employed by or act as a consultant or advisor to or be connected in any manner with, any corporation, person, firm or other entity that is competitive with the Company; |
7
(ii) | Solicit customers or the business of any person, firm, corporation or other entity who shall have been a customer or account of Company or any of Company’s affiliates while Executive was employed by Company for the purpose of selling to such customer or account any product or service similar to or which competes with any product or service which shall have been sold by Company or any of Company’s affiliates during Executive’s employment with Company; | ||
(iii) | Induce or attempt to induce any employee of or consultant to Company to do any of the foregoing or to discontinue such person’s association with Company; or | ||
(iv) | During Executive’s employment with Company, Executive shall not engage in any business activity that is competitive with Company’s business activities. Further, during Executive’s employment with Company, Executive shall not engage in any other activities that conflict with Company’s best interests |
7.5. Survival of Restrictive Covenants. The restrictive covenants contained in paragraph 7.4 shall survive expiration or termination of this Agreement. |
8.2. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. |
8
8.5. Captions. The headings in this Agreement are for convenience of reference only and do not affect the interpretation of this Agreement. |
8.7. Governing Law. The laws of the State of Minnesota shall govern the validity, construction and performance of this Agreement. Courts in the State of Minnesota shall be the exclusive forum for resolving any disputes relating to this Agreement. |
EXECUTIVE: /s/ XXXXXXX XXXXXX Xxxxxxx Xxxxxx NETRADIO CORPORATION |
By: /s/ XXXXXX
XXXXXXXX Its: President & CEO |
9