EMPLOYMENT AGREEMENT
Exhibit 10.1
This
EMPLOYMENT AGREEMENT, entered into as of this 29th day of December
2017, by and between LIBERATED SYNDICATION INC, a Nevada
corporation with an office at 0000 Xxxx Xxxx. Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter called the
“Company”) and Xxxxxx Xxxx (hereinafter called the
“Executive”).
RECITALS
WHEREAS, the
Executive is employed by the Company as VP of Operations
(“V.P.”) of the Company and President
(“President”) of Webmayhem Inc. (the
“Subsidiary”), and has performed duties of her
employment in a capable and efficient manner, resulting in
substantial benefit to the Company; and
WHEREAS, the
Company desires to assure the continued service of the Executive,
and Executive is desirous of committing herself to continued
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 as V.P. and President of the
Subsidiary, under the terms and conditions provided herein. The
Executive shall also serve, subject to her six-month review as set
forth in Section 4, as President of pair Networks Inc. (the
“New Subsidiary”) upon the Company’s acquisition
of the New Subsidiary. The Executive’s duties hereunder shall
include such duties as are normally incident to the positions. The
Executive shall perform her duties hereunder faithfully and to the
best of her 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. It is
understood and acceptable that the Executive works for other
organizations and businesses outside the Company from time to
time.
3.
Term of Employment.
The term of the Executive’s employment hereunder shall be for
a three (3) year term beginning on January 1, 2018 and ending
December 31, 2020. On January 1, 2021, and on each January
1st
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 ninety (90) days prior to the
applicable Renewal Date that the Company does not wish to extend
this Agreement beyond the initial three (3) year term or the
additional one (1) year term and subsequent additional one (1) year
renewals. The Executive may terminate this Agreement upon thirty
(30) 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 her duties and obligations to the Company hereunder,
a salary at an annual rate set by the Chief Executive Officer of
the Company (the “CEO”), but shall in no event be less
than Two Hundred Fifty Thousand Dollars ($250,000) per year,
exclusive of the benefits described in Section 5, 6 and 7 hereof.
Such salary shall be payable in equal semi-monthly installments,
less usual, customary and the applicable government mandated
payroll deductions. The Executive’s salary and performance
are subject to review by the CEO, no later than June 30, 2018. If
the CEO determines, in his sole discretion, that the Executive is
able to perform the duties and responsibilities of President of the
New Subsidiary effectively and her other duties as V.P. and
President of the Subsidiary, then Executive’s salary shall be
increased effective July 1, 2018 to Three Hundred Thousand Dollars
($300,000) per year, exclusive of the benefits described in Section
5, 6, and 7 hereof and the one time bonus outlined below shall be
increased from one times the Executive’s highest annual
salary to two times the Executive’s highest annual salary.
The Executive’s salary shall be reviewed annually by the CEO
for possible increases. Such salary shall be payable in equal
semi-monthly installments, less usual, customary and the applicable
government mandated payroll deductions. In addition, the Company
agrees to pay and the Executive agrees to accept, in accordance
with the provisions contained herein, as compensation for
performance of her duties and obligations to the Company hereunder,
any fees or payments authorized by the CEO to be paid to the
Executive for membership on the Board or any committee thereof. 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 as the CEO, Board of Directors
or the compensation committee may establish in their sole
discretion. The Executive, with Board approval, shall be eligible
to receive shares of Common Stock or Options to purchase shares of
Common Stock. At the end of the initial three (3) year term of the
employment agreement, the Executive shall receive a bonus equal to
one times the Executive’s highest annual salary. This
additional (one time) bonus is earned as of the renewal date of
January 1, 2021. If the Executive leaves by her own accord and not
a “Resignation for Good Reason” as defined below, at
the end of the initial three (3) year term of the employment
agreement, the Executive shall receive a bonus equal to or greater
than one times the Executive’s highest annual
salary.
5.
Change in Control.
Whether via changes in the entity or its subsidiaries, 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 her own contract, or
for other reasons, fails to complete the remainder of the three (3)
year contract, the Executive will receive the same salary and
benefits, including the bonus, as were the stipulated remunerations
for performing her duties as V.P. and President of the Subsidiary.
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 Executive benefit
plans, including, without limitation, medical, hospital, insurance,
pension and 401(k) plans hereafter adopted by the Board of
Directors of the Company or its Subsidiary 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 vacations each year in accordance
with the Company’s policies in effect from time to time, of
up to four (4) weeks. Vacation shall be granted on January 1 of
each calendar year of this agreement and taken on a calendar basis.
Any unused vacation at the end of the calendar year will be
forfeited and will not accrue or carry forward to the subsequent
calendar year.
(c)
Health Benefits.
Notwithstanding any other provision of this Agreement or any other
agreement between the Executive and the Company, the Company agrees
upon the termination of Executive’s employment for any reason
other than Cause (as hereinafter defined), or upon
Executive’s retirement from the Company, or upon the
Executive’s death while employed by the Company, the Company
shall provide at its sole cost, to Executive, and the
Executive’s spouse at the time of termination of employment
as well as applicable dependents, the same level of health care
benefits as currently provided to Executive and her family, on the
date hereof; for a term of 5 years from the date of separation of
employment unless executive is covered by another company
employment contract.
The
Company further agrees that in the event that the level of health
care benefits provided by the Company to its Executives is expanded
at any time prior to the occurrence of the triggering event
described in either Section 7(c)(i) or Section 7(c)(ii) hereof, the
health care benefit that is required to be provided by Section
7(c)(i) or Section 7(c)(ii) shall be at such expanded
level.
(8)
Termination.
(a)
Death. The
Executive’s employment hereunder shall terminate upon her
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 her 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-six percent (76%) 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 her, together with
her 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 her 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 functions,
duties or responsibilities which change would cause the
Executive’s position with the Company to become of less
dignity, responsibility, importance, prestige or scope, including,
without limitation, a change from being V.P. of a publicly held
company; except as consultant to the Chief Executive Officer (CEO)
and or Board of Directors (BOD) in an advisory capacity as defined
in Section 5, and excluding any change to her position as President
of the New Subsidiary subject to her six-month review as set forth
in Section 4.
(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 her
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 her 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, except as specified in subsection
7(c).
(b)
Termination by the Company
Due to the Executive’s Disability. During any period
that the Executive is prevented from performing her duties
hereunder as a result of incapacity due to physical or mental
illness, the Executive shall continue to receive her Salary and
benefits in the amounts or rates in effect upon the commencement of
her 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, except as specified in subsection
7(c).
(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
unvested stock options held by the Executive shall automatically
vest, all bonuses, including the one time bonus specified in
section 4, due the Executive shall be deemed earned and be paid
immediately upon termination, and all shares due the Executive
shall be immediately vested and/or all milestones achieve with all
shares issued to the Executive. The Company shall also provide to
the Executive the benefits described in Section 7(a) and Section
7(c) 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 herself 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 “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 her 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.
13.
Confidential
Information. The Executive acknowledges that, in and as a
result of her 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 her 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 her 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 her period of service with the Company,
except in the course of performing her 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
her control.
14.
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 setoff, 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).
15.
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.
16.
Governing Law. This
Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of
Pennsylvania.
17.
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.
18.
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.
19.
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, to such address as the Executive may have furnished
to the Company in writing.
If to
the Company:
Chief
Financial Officer
0000
Xxxx Xxxx
Xxxxx
000
Xxxxxxxxxx, XX
00000
or to
such other address as the Company may have furnished to the
Executive in writing.
20.
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.
21.
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.
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EXECUTIVE
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/s/
Xxxxxx X. Xxxx
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Xxxxxx
Xxxx
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Liberated
Syndication
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/s/
Xxxxxxxxxxx Xxxxxxx
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Xxxxxxxxxxx
Xxxxxxx
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Chief
Executive Officer
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