EXHIBIT 10.19
TERMINATION AGREEMENT
THIS AGREEMENT is made and entered into this 29th day of April, 1999, by and
between NETRADIO CORPORATION, a Minnesota corporation (the "Company") and
XXXXXXX XXXX, the Company's Chief Financial Officer (the "Executive").
WHEREAS, the Company is engaged in the business of developing, marketing, and
selling products on the Internet; and
WHEREAS, the Company and Executive mutually desire to enter into a
Termination Agreement outlining specific terms and conditions that would
entitle the Executive to receive a severance payment in a case where certain
events trigger either the Executive's termination or diminishment in position
after a sale of the Company.
NOW, THEREFORE, in consideration of the above recitals and the mutual
promises herein contained, the parties hereto agree as follows:
1. TERMINATION. This Agreement and the obligation to pay the Executive
under Paragraph 2 of this Agreement will only be triggered if (i) there
is "Change in Control" (as defined below) and (ii) within one (1) year
after such Change in Control, any one of the following events occurs:
(a) Executive's employment with the Company is terminated by the Company;
or
(b) There is any material adverse change in Executive's status or position
as an executive officer of the Company, including without limitation,
any material adverse change in Executive's status or position as a
result of a material diminution in Executive's duties,
responsibilities, or authority immediately prior to the Change in
Control or the assignment to Executive of any duties or
responsibilities which, in Executive's reasonable judgment, are
inconsistent with the Executive's status or position; or
(c) The Company substantially reduces the Executive's base salary that was
in effect immediately before the Change in Control or otherwise
changes the eligibility requirements or performance criteria for any
benefit other than salary, which materially and adversely effects the
Executive.
2. PAYMENTS DUE. If any of the events described in Paragraph 1 above are
triggered, the Company shall pay Executive the "Severance Payment" (as
defined below) in cash within ten (10) business days of the triggering
event; provided, however, that in no event shall the amount due and payable
hereunder constitute a "Parachute Payment" within the meaning of Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended. In the event
that any portion of the Severance Payment would be deemed a Parachute
Payment, the amount of the Severance Payment shall be reduced only to the
extent necessary to eliminate any such treatment or characterization.
3. DEFINITIONS. For purposes of this Agreement, the following definitions
apply:
(a) "Change in Control" shall mean:
(i) the sale of all or substantially all of the assets of the
Company;
(ii) the acquisition by any means of more than fifty percent (50%) of
the issued and outstanding voting stock of the Company by any
entity, person, or group of persons acting in concert; provided,
however, this subparagraph (ii) does not apply to any offering
by the Company to the public that has been approved by the
Company's Board of Directors;
(iii) the commencement by an entity, person or group (other than the
Company or a subsidiary of the Company) of a tender offer or an
exchange offer for fifty percent (50%) or more of the
outstanding voting stock of the Company; or
(iv) the election to the Board of Directors of the Company without
the recommendation or approval of the incumbent Board of
Directors of the Company, the lesser of (1) three directors or
(2) directors constituting a majority of the number of directors
of the Company then in office.
(b) "Executive Salary" shall mean Executive's salary in effect when Change
in Control occurs.
(c) "Severance Payment" shall mean an amount equal to six (6) months of
Executive's Salary.
4. MODIFICATIONS - WAIVER. No termination or modification of any provisions
of this Termination Agreement or waiver of any right provided in it shall
be effective for any purpose unless specifically set forth in a writing
signed by the party to be bound thereby. No waiver of any right or remedy
in respect of any occurrence or event on one occasion shall be deemed a
waiver of such right or remedy in respect of such occurrence or event on
any other occasion.
5. ENTIRE AGREEMENT. This Termination Agreement contains the entire agreement
of the parties with respect to the subject matter hereof and supersedes all
other agreements, oral or written, with respect to the subject matter
contained in this Agreement.
6. CONTROLLING LAW. All questions concerning the validity and operation of
this Termination Agreement and the performance of the obligations imposed
upon the parties hereunder shall be governed by the laws of the State of
Minnesota.
IN WITNESS WHEREOF, the parties have executed this Termination Agreement as
of the date first set forth above.
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NETRADIO CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxx
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XXXXXXX XXXX
Its President & C.E.O.
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