EXHIBIT 10.68
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made effective as of
May 1, 1997, by and between Heartland Communications & Management, Inc., (the
"Employer"), and Xxxxxx Xxxxxx, (The "Employee").
A. Employer is engaged in the business of promoting talk radio
programming selling program time, providing consulting and financial
services to the communications industry, and providing information and
management services and investing in communications and management
based companies, including those engaged in producing print product
such as newspapers, magazines, etc. and those that distribute print
product via the Internet.
B. Employer desires to have the services of the Employee.
C. Employee is willing to be employed by Employer.
Therefore, the parties agree as follows:
1. EMPLOYMENT. Employer shall employ Employee as Vice President to
perform those duties prescribed by the Employer's Articles of
Incorporation and Bylaws and as otherwise directed by the Board of
Directors from time to time. Employee accepts and agrees to such
employment, subject to the general supervision, advice and direction
of Employer's Board of Directors. Employee shall also perform such
other duties as are customarily performed by an employee in a similar
position.
2. BEST EFFORTS OF EMPLOYEE. Employee agrees to perform faithfully,
industriously, and to the best of Employee's ability, experience, and
talents, all of the duties that may be required by the express and
implicit terms of this Agreement, to the reasonable satisfaction of
Employer. Such duties shall be provided at such place(s) as the
needs, business, or opportunities of the Employer may require form
time to time. It is understood that Employee will devote most of his
time to the business of Creative Network, Inc. and/or Xpress Ventures,
Inc.
3. COMPENSATION OF EMPLOYEE. As compensation for the services provided
by Employee under this Agreement, Employee will receive no base
salary, but will be eligible to participate in a bonus pool to be
established by the Employer and will be eligible for stock options as
follows:
A. Base Salary - None.
B. Bonus Compensation - Employer shall establish an annual bonus pool.
The bonus pool shall be subject to the Board of Directors
determination, on an annual basis, of Company criteria (the "Company
Criteria") for establishment of such bonus pool, which shall be based
on profitability and other factors as determined by the Board. Those
persons eligible to participate in this bonus pool shall be
designated by the Employer's Board of Directors. Employee shall be
entitled to participate in this bonus pool. The portion of the bonus
pool to be allocated to each eligible participant shall be at the
sole discretion of the Board of Directors. The Board of Directors
shall establish at the beginning of each year, individual objective
goals required for each eligible participant to earn a minimum stated
percentage of the bonus pool if the Company Criteria are first met.
If an employee does not meet the goals established for him or her,
the Board, in its sole discretion may allocate none, all or a portion
of the minimum stated percentage to such Employee. If all of the
bonus pool is not allocated because certain Employees failed to meet
their goals and were not allocated all of their minimum stated
percentage, the Board in its sole discretion may allocate all, part
or none of the excess bonus pool funds to other eligible participants.
C. Stock Options - Employee shall be eligible to receive options to buy
up to 5,000 shares of Employers' common voting stock for $.10 per
share. The grant of such options and the terms and conditions, other
than price, thereof shall be at the sole discretion of the Employer's
Board of Directors.
Accrued vacation will be paid in accordance with state law and the Employer's
customary procedures.
4. REIMBURSEMENT FOR EXPENSES IN ACCORDANCE WITH EMPLOYER POLICY. The
Employer will reimburse Employee for "out-of-pocket" expenses in accordance
with Employer policies in effect from time to time.
5. CONFIDENTIALITY. Employee recognizes that Employer has and will
have information regarding products, prices, future plans, business affairs,
processes, trade secrets, technical matters, customer lists, product design,
copyrights and other vital and proprietary information (collectively,
"Information") which are valuable, special and unique assets of Employer.
Employee agrees that the Employee will not at any time or in any manner,
either directly or indirectly, divulge, disclose, or communicate in any
manner any Information to any third party, except in the ordinary performance
of his duties, without the prior written consent of the Employer. Employee
will protect the Information and treat it as strictly confidential. A
violation by Employee of this paragraph shall be a material violation of this
Agreement and will justify legal and/or equitable relief in addition to being
grounds for dismissal for cause.
6. UNATHORIZED DISCLOSURE OF INFORMATION. If it appears that Employee
has disclosed (or has threatened to disclose) Information in violation of
this Agreement, Employer shall be entitled to an injunction to restrain
Employee from disclosing, in whole or in part, such Information, or form
providing any services to any party to whom such Information has been
disclosed or may be disclosed. Employer shall not be prohibited by this
provision from pursuing other remedies, including a claim for losses and
damages.
7. CONFIDENTIALITY AFTER TERMINATION OF EMPLOYMENT. The
confidentiality provisions of this Agreement shall remain in full force and
effect for one (1) year after the termination of Employee's employment.
8. NON-COMPETE AGREEMENT. Recognizing that the various items of
information are special and unique assets of the Company, Employee agrees and
covenants that for a period of one (1) year following the end of the Term of
this Agreement, whether such termination is voluntary or involuntary,
Employee will not directly or indirectly engage in any business competitive
with Employer. This covenant shall apply to all geographical areas in which
the Employer conducts business or from which the Employer otherwise derives
revenues and to Internet delivery of said products and services. Directly or
indirectly engaging in any competitive business includes, but is not limited
to, (i) engaging in a business as owner, partner, or agent, (ii) becoming an
employee of any third party that is engaged in such business, (iii) becoming
interested directly or indirectly in any such business, or (iv) soliciting
any customer of Employer for the benefit of a third party that is engaged in
such business. Employee agrees that this non-compete provision will not
adversely affect the Employee's livelihood. Notwithstanding any of the
foregoing provisions of this paragraph 8, this paragraph 8 shall apply only
to products, services, and business lines engaged in by the Employer on the
date of Employee's termination.
9. TERM/TERMINATION
9.1 Employee's employment under this Agreement shall be for three (3)
years, beginning on May 1, 1997.
9.1 If Employee is in violation of this Agreement, Employer may
terminate employment without notice and for cause and with compensation to
Employee only to the date of such termination as provided in paragraph 3
above. The compensation paid under this Agreement shall be the Employee's
exclusive remedy.
9.3 If this Agreement is terminated by Employer without cause
prior to the end of its Term, Employee shall be paid (i) at the rate of his
base salary as provided in paragraph 3 above at the date of termination for
the period after the termination date through the end of the Term of this
Agreement and (ii) any bonus payment that would have been due Employee for
the year in which Employee was terminated based on the objective criteria
established by the Board of Directors. Such payments shall be paid as and
when salary and bonus payments would have been paid to Employee had Employee
not been terminated.
10. NOTICES. All notices required or permitted under this Agreement
shall be in writing and shall be deemed delivered when delivered in person or
deposited in the United States mail, postage paid, addressed as follows:
Employer:
Heartland Communications & Management, Inc.
0000 Xxx Xxxxx Xxxxxx Xxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Employee:
Xxxxxx Xxxxxx, Vice President
The Creative Network
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Such addresses may be changed from time to time by either party by providing
written notice in the manner set forth above.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties and there are no other promises or considerations in any other
agreement whether oral or written. This Agreement supersedes any prior
written or oral agreement between the parties.
12. AMENDMENT. This Agreement may be modified or amended, if the
amendment is made in writing and is signed by both parties.
13. SEVERABILITY. If any provisions of this Agreement shall be held to
be invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision of
this Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid or enforceable, then such provision shall be
deemed to be written, construed, and enforced as so limited.
14. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to
enforce any provision of this Agreement shall not be construed as a waiver or
limitation of that party's right to subsequently enforce and compel strict
compliance with every provision of this Agreement.
15. APPLICABLE LAW. This Agreement shall be governed by the laws of
the Commonwealth of Virginia.
16. ARBITRATION. All disputes under this Agreement that cannot be
resolved by the parties shall be submitted to arbitration under the rules and
regulations of the American Arbitration Association with the arbitration to
be held in Washington, D.C. Either party may invoke this paragraph after
providing 30 days' written notice to the other party. All costs of
arbitration shall be divided equally between the parties. Any award may be
enforced by a court of law.
Employer:
Heartland Communications & Management, Inc.
0000 Xxx Xxxxx Xxxxxx Xxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
By: [sig illegible]
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Title: President
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AGREED TO AND ACCEPTED
Employee:
/s/ Xxxxxx Xxxxxx
--------------------------------
Xxxxxx Xxxxxx
