SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 99.7
SECOND AMENDED AND RESTATED
This Second Amended and Restated Employment Agreement (“Agreement”) is made this 7th day of October, 2010, by and between Santeon Group, Inc., a duly organized Delaware corporation (“Employer”), and Xxxxx Xxxxxxxx, a resident of the State of California (“Employee”).
W I T N E S S E T H:
WHEREAS, on August 28, 2009, Employee entered into the First Amended and Restated Employment Agreement with ubroadcast,inc.;
WHEREAS, on December 15, 2009, Employee and ubroadcast,inc. executed Amendment Number One to the First Amended and Restated Agreement and on May 12, 2010, Employee and ubroadcast, inc. entered into Amendment Number Two to the First Amended and Restated Employment Agreement (collectively the “Amendments”);
WHEREAS, pursuant to the Amendments, among other, Employee’s title was changed to Vice President of Finance, Employee received a salary and reimbursement for expenses, and the term of the agreement was extended;
WHEREAS, on May 10, 2010, ubroadcast, inc. and Santeon, Inc. entered into and executed an Agreement and Plan of Merger (the “Merger”) whereby Santeon, Inc. was acquired by a wholly-owned subsidiary of ubroadcast, inc.;
WHEREAS, immediately subsequent, and pursuant to, the Merger, ubroadcast, inc. changed its corporate name to Santeon Group, Inc. and therefore any and all references to the Employer shall include and incorporate any and all transactions related to ubroadcast, inc. prior to the Merger as stated above;
WHEREAS, Employee has, since executing the Amendments to his First Amended and Restated Employment Agreement, served as Vice President of Finance;
WHEREAS, since the date of the Merger, the Employer and Employee have agreed that in order to satisfy the terms and conditions of the First Amended and Restated Employment Agreement and Amendments thereto, the Employer will be deprived of financial resources necessary to secure additional capital crucial for the growth and expansion of the Employer;
WHEREAS, Employer desires to reward Employee for his continued performance of his duties as Vice President of Finance while also giving effect to the current financial limitations of Employer and its inability to satisfy the terms and conditions of Employee’s First Amended and Restated Employment Agreement and Amendments thereto.
WHEREAS, Employee wishes to continue his employment under Employer under new terms and conditions;
WHEREAS, Employer and Employee mutually agree that it is in their best interests to enter into a Second Amended and Restated Employment Agreement to define each of their rights, duties, and obligations;
WHEREAS, this Second Amended and Restated Employment Agreement is intended to replace all prior agreements between Employer and Employee; and
WHEREAS, Employee is, throughout the term of this Agreement, willing to be employed by Employer, and Employer is willing to employ Employee, on the terms, covenants and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of such employment and other valuable consideration, the receipt and adequacy of which is hereby acknowledged, Employer and Employee hereby agree as follows:
SECTION I. EMPLOYMENT OF EMPLOYEE
Employer hereby employs, engages and hires Employee as Vice President of Finance of Employer, and Employee hereby accepts and agrees to such hiring, engagement and employment, subject to the general supervision
of the Board of Directors of Employer. Employee shall perform duties as are customarily performed by one holding such position in other, same or similar businesses or enterprises as that engaged in by Employer, and shall also additionally render such other and unrelated services and duties as may be reasonably assigned to him from time to time by the Board of Directors of Employer. Employee shall devote his full-time efforts to the performance of his duties of Employer.
SECTION II. EMPLOYEE’S PERFORMANCE
Employee hereby agrees that he will, at all times, faithfully, industriously and to the best of his ability, experience and talents, perform all of the duties that may be required of and from him pursuant to the express and implicit terms hereof, to the reasonable satisfaction of Employer.
SECTION III. COMPENSATION OF EMPLOYEE
Employer shall pay Employee, and Employee shall accept from Employer, in full payment for Employee’s services hereunder, compensation as follows:
|
|
A.
|
Salary. Employee shall be paid as and for a salary the sum of two thousand five hundred dollars ($2,500) per calendar month, which salary shall be payable on the 1st day of each calendar month subject to deduction of lawful and required withholding.
|
|
|
B.
|
Other Expenses. Except for personal cell phone, Employee agrees that he shall be responsible for all expenses incurred in his performance hereunder unless Employer shall have agreed, in advance and in writing, to reimburse Employee for any such expenses.
|
|
|
C.
|
Vacations. During the term of this Agreement, Employee shall be entitled to three (3) weeks of vacation.
|
SECTION IV. OTHER AGREEMENTS WITH EMPLOYEE
Employer and Employee specifically agree that the existing Indemnity Agreement and Confidentiality Agreement between the parties, each dated April 15, 2009, shall remain of full force and effect, to survive the expiration of this Agreement.
SECTION V. COMPANY POLICIES
Employee agrees to abide by the policies, rules, regulations or usages applicable to Employee as established by Employer from time to time and provided to Employee in writing.
SECTION VI. TERM AND TERMINATION
|
A.
|
Term. The term of this Agreement shall be a period of one year commencing on September 27, 2010.
|
|
| B. | Termination. Employer agrees not to terminate this Agreement except for “just cause”. For purposes of this Agreement, “just cause” shall mean (1) the willful failure or refusal of Employee to implement or follow the written policies or directions of Employer’s Board of Directors, provided that Employee’s failure or refusal is not based upon Employee’s belief in good faith, as expressed to Employer in writing, that the implementation thereof would be unlawful; (2) conduct which is inconsistent with Employee’s position with Employer and which results in a material adverse effect (financial or otherwise) or misappropriation of assets of Employer; (3) conduct either prior to, or subsequent to the execution of this Agreement which violates securities laws, whether in the capacity as Employee or as a shareholder (4) conduct which violates the provisions contained in the existing Confidentiality Agreement and/or the Indemnity Agreement between Employer and Employee; (5) the intentional causing of material damage to Employer’s physical property; and (6) any act involving personal dishonesty or criminal conduct against Employer. |
Although Employer retains the right to terminate Employee for any reason not specified above, Employer agrees that if it discharges Employee for any reason other than just cause, as is solely defined above, Employee will be entitled to full compensation hereunder. If Employee should cease his employment hereunder voluntarily for any reason, or is terminated for just cause, all future compensation and benefits payable to Employee shall thereupon, without any further writing or act, cease, lapse and be terminated. However, all salary and reimbursements which were earned prior to Employee’s ceasing employment or termination will become immediately due and payable and shall be payable to Employee’s estate should his employment cease due to death.
SECTION VII. COMPLETE AGREEMENT
This Agreement contains the complete agreement concerning the employment arrangement between the parties hereto and shall, as of the effective date hereof, supersede all other agreements between the parties, including all other employment agreements and amendments thereto. The parties hereto stipulate that neither of them has made any representation with respect to the subject matter of this Agreement or any representations including the execution and delivery hereof, except such representations as are specifically set forth herein and each of the parties hereto acknowledges that he or it has relied on his or its own judgment in entering into this Agreement. The parties hereto further acknowledge that any payments or representations that may have heretofore been made by either of them to the other are of no effect and that neither of them has relied thereon in connection with his or its dealings with the other.
SECTION VIII. WAIVER; MODIFICATION
The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach hereof. No waiver or modification of this Agreement or of any covenant, condition or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith and no evidence of any waiver or modification shall be offered or received in evidence of any proceeding or litigation between the parties hereto arising out of, or affecting, this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid, and the parties further agree that the provisions of this Section VIII may not be waived except as herein set forth.
SECTION IX. SEVERABILITY
All agreements and covenants contained herein are severable, and in the event any one of them, with the exception of those contained in Sections I, III, IV, V and VI hereof, shall be held to be invalid in any proceeding or litigation between the parties, this Agreement shall be interpreted as if such invalid agreements or covenants were not contained herein.
SECTION X. NOTICES
Any and all notices will be sufficient if furnished in writing, sent by registered mail to his last known residence, in case of Employee, or, in case of Employer, to its principal office address.
SECTION XI. REPRESENTATIONS OF EMPLOYER
The execution of this Agreement by Employer has been approved by the Board of Directors of Employer.
SECTION XII. REPRESENTATIONS OF EMPLOYEE
Employee hereby represents to Employer that he is under no legal disability with respect to his entering into this Agreement.
SECTION XIII. COUNTERPARTS
This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original and, together, shall constitute one and the same agreement, with one counterpart being delivered to each party hereto.
SECTION XIV. BENEFIT
The provisions of this Agreement shall extend to the successors, surviving corporations and assigns of Employer and to any purchaser of substantially all of the assets and business of Employer. The term “Employer” shall be deemed to include Employer, any joint venture, partnership, limited liability company, corporation or other juridical entity, in which Employer shall have an interest, financial or otherwise.
SECTION XV. ARBITRATION
The parties agree that any dispute arising between them related to this Agreement or the performance hereof shall be submitted for resolution to the American Arbitration Association for arbitration in the San Diego, California, office of the Association under the then-current rules of arbitration. The Arbitrator or Arbitrators shall have the authority to award to the prevailing party its reasonable costs and attorneys fees. Any award of the Arbitrators may be entered as a judgment in any court competent jurisdiction.
Notwithstanding the provisions contained in the foregoing paragraph, the parties hereto agree that Employer may, at its election, seek injunctive or other equitable relief from a court of competent jurisdiction for a violation or violations by Employee of the existing Confidentiality Agreement.
SECTION XVI. LEGAL REPRESENTATION
Employer and Employee both acknowledge that each has utilized separate legal counsel with respect to this Agreement. Specifically, Employee acknowledges that the law firm of Xxxxx & Xxxxxxxxxxx, LLP has drafted this Agreement on behalf of Employer. EMPLOYEE IS ADMONISHED TO SEEK HIS OWN LEGAL COUNSEL.
SECTION XVII. GOVERNING LAW
It is the intention of the parties hereto that this Agreement and the performance hereunder and all suits and special proceedings hereunder be construed in accordance with and under and pursuant to the laws of the State of Virginia, and that, in any action, special proceeding or other proceeding that may be brought arising out of, in connection with or by reason of this Agreement, the laws of the State of Virginia shall be applicable and shall govern to the exclusion of the law of any other forum, without regard to the jurisdiction in which any such action or special proceeding may be instituted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day first above written.
|
SANTEON GROUP, INC.
|
||
|
By:
|
/s/ Ash X. Xxxxxx | |
|
Ash X. Xxxxxx
|
||
|
Chariman/CEO
|
||
|
EMPLOYEE:
|
||
| /s/ Xxxxx Xxxxxxxx | ||
|
Xxxxx Xxxxxxxx, individually
|
||
|
Address of Employee:
0000 Xxxxxx Xxx., Xxxxx 000
Xxx Xxxxx, XX 00000
|
||
