EMPLOYMENT AGREEMENT
Exhibit 10.1
This
EMPLOYMENT AGREEMENT, entered into as of this 29th day of July,
2020, by and between Liberated Syndication, Inc., a Nevada
corporation with an office at 0000 Xxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter called the
“Company”) and Xxxxxxx X. Xxxxx (hereinafter called the
“Executive”), residing at 000 Xxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000.
RECITALS
WHEREAS, the
Company has reviewed and considered Executive’s
qualifications and desires to engage Executive as Chief Financial
Officer (“CFO”) of the Company, and Executive is
desirous of committing himself to service to the Company on the
terms herein provided.
AGREEMENTS
NOW,
THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged
by the parties hereto, the Company and the Executive agree as
follows:
1. Employment. The Company will
employ the Executive and the Executive accepts employment on the
terms and conditions set forth in this Agreement.
2. Duties. The Executive shall
serve the Company and Subsidiaries as CFO, under the terms and
conditions provided herein. The Executive’s duties hereunder
shall include such duties as are normally incident to the position.
The Executive shall devote the majority of his working time to the
Company and perform his duties hereunder faithfully and to the best
of his abilities and in furtherance of the business of the Company
and to the promotion of its interests. To further perform the
Executive duties as are commonly incumbent upon that position, the
Executive agrees to travel to or work at other locations, from time
to time, as reasonable for the benefit of the company.
3. Term of Employment. The term of
the Executive’s employment hereunder shall be for a two (2)
year term beginning on August 1, 2020 and ending July 31, 2022. On
July 31, 2022, and on each July 31st thereafter (each such date
being hereinafter referred to as a “Renewal Date”), the
term of the Executive’s employment hereunder shall
automatically be extended for an additional one (1) year period
unless the Company notifies the Executive in writing at least
thirty (30) days prior to the applicable Renewal Date that the
Company does not wish to extend this Agreement beyond the initial
two (2) year term or the additional one (1) year term and
subsequent additional one (1) year renewals. The Executive may
terminate this Agreement upon thirty (60) days advance written
notice to the Company at any point during the Executive’s
term of employment.
4. Salary. The Company agrees to
pay and the Executive agrees to accept, in accordance with the
provisions contained herein, as compensation for performance of his
duties and obligations to the Company hereunder, a salary at an
annual rate set by the Board of Directors of the Company (the
“Board”), but shall in no event be less than Two
Hundred Forty Thousand Dollars ($240,000) per year, exclusive of
the benefits described in Section 5, 6 and 7 hereof. Such salary
shall be payable in accordance with Company payroll policy, less
usual, customary and the applicable government mandated payroll
deductions. The Executive’s salary shall be reviewed annually
by the Board for possible increases. All amounts described in this
Section shall be referred to in this Agreement collectively as the
Executive’s “Salary”. The Executive shall be
entitled to participate in such bonus programs that may be made
generally available to the Company’s Executive employees and
employees from time to time at the sole discretion of the CEO,
Board of Directors or the compensation committee. The Executive,
with Board approval, shall be eligible to receive shares of Common
Stock or Options to purchase shares of Common Stock.
Stock.
Executive will receive an initial grant of 40,000 shares of
restricted common stock which shall vest upon 2 years from the date
of the signing of this contract and accepting the role of Chief
Financial Officer. Furthermore, Executive can participate in
a Stock Purchase Matching Plan wherein Company will issue one (1)
restricted “matching share” for every two (2) shares
purchased, up to a total of 50,000 “matching
shares” for 100,000 purchased shares per each
of the two (2) years of the Agreement. Restrictions on the
“matching shares” will include a minimum lockup of two
(2) years on the “matching shares” and that the
participant remain an Executive at the end of the two (2) year
lockup. If Executive has separated employment with the
Company, for any of the Termination reasons identified in Section
9(a) or 9(b), at the end of the two (2) years, Executive forfeits
any “matching stock.”
Cash Bonus. Executive will be
entitled to an annual cash bonus in an amount up to $60,000 per
year, based upon Management by Objectives (MBO’s) created
with Executive (CFO), the CEO, and the President, within 30 days of
entering into this contract. This annual cash bonus will require
approval of the Board of Directors. Notwithstanding any other
provisions in this Agreement to the contrary, the Executive hereby
acknowledges and agrees that incentive-based compensation
(including cash bonus, stock options and matching stock shares)
paid to the Executive is subject to a claw-back for the recovery of
erroneously awarded incentive compensation in the event the Company
is required to prepare an accounting restatement
(“Restatement”) due to the material noncompliance of
the Company with any financial reporting requirements under the
securities laws. The Executive hereby agrees to repay the Company
up to the total value of the incentive awards if the Restatement
has resulted from (i) the willful failure of the Executive to
substantially perform his duties hereunder; (ii) the engaging by
the Executive in dishonesty or other misconduct materially
injurious to the Company; (iii) the commission of fraud by the
Executive, as determined at the sole discretion of the Board of
Directors. Unless otherwise determined by the Company, in the event
that any such Restatement with respect to the Performance Period
becomes necessary during the three (3) year period preceding the
date on which the Company is required to prepare the accounting
restatement, based on the erroneous data, in excess of what would
have been paid to the Executive under the accounting restatement.
The Company will implement this Policy in accordance with the rules
of the Securities Exchange Commission, as they are
promulgated.
5. Change in Control. Whether via
changes in the entity, or any change in the Executive's duties,
titles, or capacities the Executive is entitled to the same
salaries and benefits as if the Executive contract had remained in
force.
(a)
Unless the Executive unilaterally terminates his own contract, or
for other reasons, fails to complete employment agreement, the
Executive will receive the same salary and benefits as were the
stipulated remunerations for performing his duties. Such
remunerations will continue to be paid for consulting and advisory
services or a re-designation to another role in the Company as
agreed to by the executive on a monthly basis for contract
duration.
6. Expenses. All reasonable travel
and other expenses incidental to the rendering of services by the
Executive hereunder shall be paid by the Company in accordance with
the Company’s policies and procedures.
7.
Benefits.
(a) Benefit Plans. The
Executive shall be entitled to participate in all Company benefit
plans as outlined in the EMPLOYEE HANDBOOK, including, without
limitation, medical, hospital, insurance, and 401(k) plans
hereafter adopted by the Board of Directors of the Company for its
Executive employees and employees, and to receive any other fringe
benefits that may be made generally available to the
Company’s Executive employees from time to time.
(b) Vacations. The Executive shall
be entitled to Paid Time Off (PTO) each year in accordance with the
Company’s policies in effect from time to time of up to four
(4) weeks.
8.
Termination.
(a)
Death. The Executive’s
employment hereunder shall terminate upon his Death.
(b)
Cause. The Company may
terminate the Executive’s employment hereunder for Cause. For
the purpose of this Agreement, the Company shall have
“Cause” to terminate the Executive’s employment
hereunder upon (i) the willful failure of the Executive to
substantially perform his duties hereunder; (ii) the engaging by
the Executive in dishonesty or other misconduct materially
injurious to the Company; (iii) the commission by the Executive of
a felony (whether or not involving the Company); or (iv) a material
breach by the Executive of this Agreement, provided that such
breach shall not have been cured by the Executive within thirty
(30) days after written notice thereof from the Company to the
Executive. (v) Gross negligence in the performance of the duties of
the executive for the Company. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to the Executive a
copy of a resolution, duly adopted by the affirmative vote of not
less than seventy-five percent (75%) of the entire membership of
the Board of Directors of the Company at a meeting of the Board
called and held for the purpose (after thirty (30) days prior
written notice to the Executive and an opportunity for him,
together with his counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the Executive was
guilty of conduct set forth above in clause (i), (ii), (iii) or
(iv) of this Section 8(b) and specifying the particulars thereof in
detail.
(c)
Resignation for Good Reason.
The Executive may terminate his employment hereunder for Good
Reason. For the purpose of this Agreement “Good Reason shall
mean:
(1)
a material breach
by the Company, by act or omission, of this Agreement, which the
Company fails to cure within thirty (30) days after receipt of
written notice from the Executive of such material breach (or, in
the case of a material breach which the Company cannot reasonably
cure within said thirty (30) day period which the Company fails to
commence within said thirty (30) day period to diligently
cure);
(2)
material change by
the Company of the Executive’s position which change would
cause the Executive’s position with the company to become
less than a senior manager of the company;
(3)
permanent
assignment or reassignment by the Company of the Executive without
the Executive's consent to another place of employment more than 50
miles from the Executive's current place of employment;
or
(4)
a reduction in the
Executive’s base pay or bonus opportunity from the previous
year.
No such
event described above shall constitute Good Reason unless the
Executive gives timely written notice to the Company, specifying
the event relied upon for such termination of such event and the
Company has not remedied such within 30 days of the notice. The
Company and Executive, upon mutual written agreement may waive any
of the foregoing provisions which would otherwise constitute a Good
Reason.
(d)
Disability. If, as a result of
the Executive’s incapacity due to physical or mental illness,
the Executive shall have been absent from his duties hereunder on a
full time basis for ninety (90) consecutive business days, the
Company may terminate the Executive’s employment
hereunder.
9.
Effect of
Termination.
(a) Termination by the Company for
Cause or Due to Executive’s Death. If the
Executive’s employment hereunder shall be terminated due to
the Executive’s death or for Cause, the Company shall pay the
Executive his full Salary and other benefits through the date of
termination at the rate then in effect. Upon termination of the
Executive’s employment pursuant to subsections 8(a) and 8(b)
hereof, the Company shall have no further obligations to the
Executive under this Agreement.
(b) Termination by the Company Due
to the Executive’s Disability. During any period that
the Executive is prevented from performing his duties hereunder as
a result of incapacity due to physical or mental illness, the
Executive shall continue to receive his Salary and benefits in the
amounts or rates in effect upon the commencement of his disability
(less any amounts payable to the Executive under any Company
disability insurance policy or plan) until the Executive’s
employment hereunder is terminated by the Company pursuant to
Section 8(d)
hereof.
Upon termination of the Executive’s employment pursuant to
subsection 8(d) hereof, the Company shall have no further
obligations to the Executive under this Agreement.
(c) Termination by the Company without
Cause or by Executive Resignation for Good Reason. If the
Executive’s employment hereunder shall be terminated by the
Company, other than for death, Cause or disability, or the
Executive Resigns for Good Reason, the Company agrees to pay as a
severance pay an amount equal to the Salary which would have been
payable over the remaining term of this Agreement or, if such
remaining term is less than twelve (12) months, then for a period
of twelve (12) months immediately following the termination. All
restricted stock and unvested stock options held by the Executive
shall automatically vest. The Company shall also provide to the
Executive the benefits described in Section 7(a) hereof for a term
not shorter than the period that said severance pay shall be
payable. In addition, the Company shall pay to the Executive any
accrued bonus through the date of termination. The Company’s
notice of non- extension of this Agreement, described in Section 3
hereof, shall not constitute a termination by the Company for the
purposes of this Section 9(c).
10. Termination by Change in Control. If, and only
if, the Executive’s employment is terminated following a
Change in Control of the Company, the provisions in Section 9(c) of
this Agreement shall be followed in addition to the provisions in
Section 5 of this agreement.
11. Assignment; Successors. The
provisions of this Agreement shall survive any Change in Control
and is subject to the provisions of Section 10 hereof, if the
Company shall be merged, be the subject of a Tender Offer, or
consolidated into any other corporation or if substantially all of
the assets of the Company shall be transferred to another
corporation, the provisions of this Agreement shall be binding upon
the corporation resulting from such merger or consolidation or to
which assets shall have been transferred (the “Surviving
Corporation”), and this provision shall apply in the event of
any subsequent merger, consolidation or transfer.
In any
such event, the Surviving Corporation shall enter into an agreement
with the Executive whereby the Surviving Corporation and the
Executive shall agree to perform this Agreement, including Section
10 hereof, in the same manner and to the same extent the Company
would be required to perform it if no such merger, consolidation or
transfer had taken place.
12.
Agreement Not to
Compete.
(a) The Executive
hereby covenants and agrees that, provided the Company makes any
payments and provides any benefits which may be required under
Section 9 and 10 hereof, at no time during the Executive’s
employment by the Company, nor for a period of six (6) months
immediately following the termination thereof, will the Executive
for himself or on behalf of any other person, partnership, company
or corporation, directly or indirectly, acquire any financial or
beneficial interest in, provide consulting services to, be employed
by, contract with, or own, manage, operate or control any business
producing, manufacturing, selling, distributing, promoting or
dealing in products or services identical or similar to the
products or services of the Company or Subsidiaries, which is
defined as providing “Internet, web or podcast hosting
services,” or otherwise compete with the Company or
Subsidiaries in the Company’s Service Area, specifically the
northeastern Region of the United States. Nothing in this Agreement
shall prevent the Executive from holding or investing in securities
listed on a national securities exchange or sold in the
over-the-counter market.
(b) The Executive
hereby covenants and agrees that, provided the Company makes any
payments which may be required under Section 9 and 10 hereof, at
all times during his employment by the Company, and for six (6)
months after termination of such employment, the Executive shall
not directly or indirectly contact or solicit any clients of the
Company or employ or seek to employ any person or entity employed
at that time by the Company, Subsidiary, affiliates or licensees or
otherwise encourage or entice such person or entity to leave
employment or terminate such employment.
(c) In the event that
this Section 12 shall be determined by arbitrators or by any court
of competent jurisdiction to be unenforceable by reason of its
extending for too great a period of time or over too large a
geographic area or over too great a range of activities, it shall
be interpreted to extend only over the maximum period of time,
geographic area or range of activities as to which it may be
enforceable.
Confidential Information. The
Executive acknowledges that, in and as a result of his relationship
with the Company, the Executive has access to certain Confidential
Information of the Company, as hereinafter defined. The Executive
recognizes that the Confidential Information is confidential and
solely the property of the Company, and that unauthorized
disclosure or use of such Confidential Information by the Executive
will be deemed a breach of this Agreement. The Executive agrees to
use his best efforts to keep secret and retain in the strictest
confidence all Confidential Information and confidential matters
which relate to the Company, Subsidiary or any affiliate of the
Company. For purposes of this Agreement, Confidential Information
means any and all information related to the Company and its
business, including, but not limited to, products, services,
suppliers, vendors, clients, prospects, business plans, marketing
techniques, pricing, financial information, customer lists,
supplier lists, trade secrets, pricing policies and other business
affairs of the Company, Subsidiary and any affiliate of the
Company, learned by him before or after the date of this Agreement,
regardless of whether such information is reduced to writing and/or
is in existence in the date hereof.The Executive agrees not to
disclose any such Confidential Information to anyone outside the
Company, Subsidiary or any affiliates, whether during or after his
period of service with the Company, except in the course of
performing his duties hereunder. Upon request by the Company, the
Executive agrees to deliver promptly to the Company upon
termination of employment by the Company, or at any time thereafter
as the Company may request, all Company, Subsidiary or any
affiliate materials, memoranda, notes, records, reports, manuals,
drawings, designs, computer files in any media and other documents
(and all copies thereof) relating to the Company’s,
Subsidiary’s or any affiliate’s business and all
property of the Company, Subsidiary or any affiliate of the
Company, which he may then possess or have under his
control.
13. Remedies. The Company’s
obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be
affected by any set- off, counterclaim, recoupment, defense or
other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated
to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement. Each party shall be responsible for
its own expenses and legal fees incurred in connection with any
arbitration, however, in the event that the Executive prevails in
the Arbitration, the Company agrees to pay, all legal fees and
expenses which the Executive may reasonably incur as a result of
any dispute or contest by or with the Company regarding the
validity or enforceability of, or liability under, any provision of
this Agreement, plus in each case interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the Internal
Revenue Code. In any such action brought by the parties, the
parties voluntarily agree that any and all disputes under this
Agreement, either an action at law or an action for injunctive
relief, shall be settled exclusively by arbitration as set forth
hereinafter. The Arbitrator may award any remedies or damages that
a judge could provide under the applicable statute or law. The
obligation of the Company under this Section 14 shall survive the
termination for any reason of this Agreement (whether such
termination is by the Company, by the Executive, upon the
expiration of this Agreement or otherwise).
14. Arbitration. To the extent
permitted by applicable law, any controversy or dispute arising out
of, or relating to, this Agreement, or any alleged breach hereof,
the parties voluntarily agree that said disputes shall be settled
exclusively by arbitration in Pittsburgh, Pennsylvania, in
accordance with Pennsylvania law, and shall be conducted in
accordance with the Rules of the American Arbitration Association
then in effect. The parties hereby consent to the jurisdiction of
the courts of the Commonwealth of Pennsylvania and of the United
States District Court for the Western District of Pennsylvania for
all purposes in connection with the arbitration. The arbitrator
shall be selected by the Executive and Company, the parties. In the
event that the parties cannot agree on the arbitrator within thirty
(30) days following receipt by one party of a demand for
arbitration from another party, then the Arbitrator shall be
selected by the American Arbitration Association. The Arbitrator
shall convene a hearing no later than thirty (30) days following
the selection. The arbitration award shall be final and binding
upon both parties without any right of appeal by either of the
parties. Judgment may be entered and execution issued in any court
of competent jurisdiction. The Company shall pay the total cost of
the Arbitrator’s professional fees and related expenses. The
parties further agree that arbitration proceedings must be
instituted within one year after the claimed breach occurred, and
that failure to institute arbitration proceedings within such
period shall constitute an absolute bar to the institution of any
proceedings and the waiver of all claims.
15. Governing Law. This Agreement
shall be governed by and construed and enforced in accordance with
the laws of the Commonwealth of Pennsylvania.
16. Entire Agreement. This
Agreement constitutes the full and complete understanding and
agreement of the parties with respect to the subject matter hereof,
supersedes all prior understandings and agreements as to employment
of the Executive, and cannot be amended, changed, modified or
terminated without the written consent of the parties
hereto.
17. Waiver of Breach. No provision
of this Agreement shall be deemed waived unless such waiver is in
writing and signed by the party making such waiver. The waiver by
either party of a breach of any term of this Agreement shall not
operate nor be construed as a waiver of any subsequent breach
thereof.
18. Notices. Any notice hereunder
shall be in writing and shall be given by personal delivery or
certified or registered mail, return receipt requested, to the
following addresses:
If to
the Executive:
Xxxxxxx
X. Xxxxx
000
Xxxx Xxxxx Xxxx
Xxxxxxxxxx, XX
00000
or to
such other address as the Executive may have furnished to the
Company in writing: If to the Company:
Xxxxx
Xxxxxxx
Chief
Executive Officer
Liberated
Syndication, Inc.
0000
Xxxx Xxxxxxxxx
Xxxxx
000
Xxxxxxxxxx, XX
00000
or to
such other address as the Company may have furnished to the
Executive in writing.
19. Severability. If any one or
more of the provisions contained in this Agreement shall be
invalid, illegal or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be
affected or impaired thereby.
20. Headings. The headings, titles
or captions of the Sections of this Agreement are included only to
facilitate reference, and they shall not define, limit, extend or
describe the scope
or
intent of this Agreement or any provision hereof; and they shall
not constitute a part hereof or affect the meaning or
interpretation of this Agreement or any part thereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE
/s/ Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx
Liberated
Syndication, Inc.
/s/
Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx
CEO
