EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
November 1, 2000, by and between NBG Radio Network, Inc., a Nevada corporation
(the "Company"), and Xxxx Xxxxxx, an Oregon resident ("Executive").
Recitals
A. The Company is engaged in the business of radio syndication
and development and developing, marketing and selling related products and
services designed in connection therewith (the "Company Business").
B. Concurrently with the execution and delivery of this
Agreement, the Company and Executive are entering into a Noncompetition
Agreement of even date herewith.
C. The Company desires Executive's continued employment with the
Company, and Executive wishes to accept such continued employment, upon the
terms and conditions set forth in this Agreement.
Accordingly, the parties agree as follows:
Agreement
1. Employment.
1.1 Term. The Company agrees to employ Executive as EVP/Sales for
a term commencing as of the date of this Agreement and continuing until the
first anniversary of the date of this Agreement, unless earlier terminated in
accordance with Section 4. Executive's employment shall be on an "at will"
basis, meaning that the relationship may be terminated by either party at any
time and for any reason in accordance with Section 4.
1.2 Duties. Executive accepts employment with the Company on the
terms and conditions set forth in this Agreement, and agrees to devote his full
time and attention (reasonable period of illness excepted) exclusively to the
performance of his duties under this Agreement. In general, such duties shall
consist of all advertising sales of company including but not limited to the
following: managing staff, building programming lineup of Company, building
relationships with other radio industry executives in the United States, and
identifying new advertising sales opportunities for Company. Executive shall
perform such specific duties and shall exercise such specific authority as may
be assigned to Executive from time to time by the board of directors (or other
executive officers) of the Company. In performing such duties, Executive shall
be subject to the direction and control of the board of directors (or other
executive officers) of the Company. Executive further agrees that in all aspects
of such employment, Executive shall comply with the policies, standards, and
regulations of the Company established from time to time, and shall perform his
duties faithfully, intelligently, to the best of his ability, and in the best
interest of the Company. If requested to do so, Executive shall serve as an
officer or director of the Company without additional compensation. The devotion
of reasonable periods of time by Executive for personal purposes, outside
business activities, or charitable activities shall not be deemed a breach of
this Agreement, provided that such purposes or activities do not materially
interfere with the services required to be rendered to or on behalf of the
Company.
1 - EMPLOYMENT AGREEMENT
2. Compensation; Benefits.
2.1 Base Compensation. In consideration of all services to be
rendered by Executive to the Company, the Company shall pay to Executive base
compensation of $100,000.00 per year. All compensation under this agreement is
guaranteed to Executive.
2.2 Commissions. The Company has the right to pay Executive a
commission of up to 10% based upon net advertising sales.
2.3 Other Benefits. Base compensation and commission compensation
paid to Executive shall be in addition to any contribution made by the Company
for the benefit of Executive to any qualified retirement plan maintained by the
Company for the exclusive benefit of its employees. The Company shall provide to
Executive and Executive's family the same benefits, if any, that the Company
provides to other employees and their families, subject to Executive's
satisfaction of the respective eligibility conditions for such benefits.
2.4 Expenses. Executive shall be entitled to reimbursement from
the Company for reasonable expenses necessarily incurred by Executive in the
performance of Executive's duties under this Agreement, on presentation of
vouchers indicating in reasonable detail the amount and business purpose of each
such expense and on compliance with the other requirements of the Company's
expense reimbursement policy.
2.5 Facilities. Executive shall be provided an office and such
other facilities, supplies, and services as shall be required for the
performance of Executive's duties under this Agreement.
2.6 Vacation. Subject to the guidelines set out in the Company's
Employee Handbook.
2.7 Illness. Subject to the guidelines set out in the Company's
Employee Handbook.
3. Noncompetition; Confidentiality; Inventions.
3.1 Noncompetition and Nonsolicitation. To the fullest extent
allowed by applicable law, for the period commencing on the date of this
Agreement and ending 12 months after the date that Executive's employment with
the Company terminates for any reason, Executive covenants and agrees as
follows:
3.1.1 Executive shall not directly or indirectly engage, within the
United States of America, Canada or Mexico, in the Company Business or in any
other business that competes with a business conducted by the Company on the
date that Executive's employment with the Company terminates for any reason. For
purposes of this paragraph, Executive shall be deemed to be indirectly engaged
in a business if Executive owns an interest in or participates in the
management, operation, or control (except as a shareholder of publicly traded
common stock) of any sole proprietorship, partnership, limited liability
company, corporation, trust, association, or other form of entity or association
(individually, an Enterprise) that is engaged in a business covered by this
paragraph.
3.1.2 Executive shall not directly or indirectly, for the benefit of
Executive or any other person or Enterprise, (a) solicit any business whatsoever
from any customer, supplier, vendor or contractor of the Company, (b) induce or
cause any customer to cease purchasing any service or product from the Company
or to terminate or change such customer's business relationship with the Company
in any manner, or (c) induce or cause any supplier, vendor or contractor to
cease providing or selling any
2 - EMPLOYMENT AGREEMENT
service or product to the Company or to terminate or
change such supplier's business relationship with the Company in any manner. The
foregoing customers, suppliers, vendors and contractors shall include all
prospective customers, suppliers, vendors and contractors with whom Executive or
the Company solicited business or entered into a business relationship within
the 24 months immediately preceding the termination of Executive's employment
with the Company.
3.1.3 Executive shall not directly or indirectly, for the benefit of
Executive or any other person or Enterprise, (a) induce or solicit any person
who is then employed by the Company or has been employed by the Company at any
time during the one-year period preceding such inducement or solicitation, to
leave his or her employment or other position with the Company or to accept any
other employment or position or (b) otherwise assist any person or Enterprise in
hiring or otherwise engaging such person.
3.2 Confidentiality. Executive agrees that all Confidential
Information (as defined below) shall be (i) the sole and exclusive property of
the Company, (ii) considered trade secrets of the Company, and (iii) entitled to
all protections provided by applicable law to trade secrets. Except with the
prior written consent of the Company, Executive agrees during the term of this
Agreement and at all times after the termination of employment with the Company
to (i) hold the Confidential Information in the strictest confidence, (ii) not
disclose the Confidential Information to any person or Enterprise (except to
other employees of the Company on a "need-to-know" basis to the extent necessary
for them to perform the duties of their employment with the Company), and (iii)
exercise the highest degree of care in safeguarding Confidential Information
against loss, theft, or other inadvertent disclosure. During the term of this
Agreement and at all times after the termination of employment with the Company,
Executive agrees not to use the Confidential Information in any manner except in
connection with the performance of his duties of employment with the Company or
except with the prior written consent of the Company.
As used in this Agreement, the "Confidential Information" shall mean
(i) any information that relates to the business, products, technology,
customers, finances, plans, proposals, or practices of the Company, including,
but not limited to, plans and specifications for new products, research and
development, inventions, marketing strategies, lists of the Company's customers
and suppliers, nonpublic financial information, budgets, and projections; (ii)
any other information that the Company designates as "confidential"; and (iii)
any information given to the Company by a customer or supplier or otherwise
designated as being confidential by a customer or supplier. The Confidential
Information shall include information in any form in which such information
exists, whether oral, written, film, tape, computer disk, or other form of
media. The Confidential Information shall exclude any information that is or
becomes part of the public domain other than as a result of acts by Executive in
breach of this Agreement.
3.3 Inventions. Executive agrees that all Inventions (as defined
below) made, authored or conceived by Executive, either solely or jointly with
others, (i) during Executive's employment with Company or (ii) within one year
after the termination of employment if based in whole or in part upon knowledge
acquired as a result of employment by the Company, shall be the sole and
exclusive property of Company. Executive will promptly and without request by
the Company fully disclose to the Company in writing any Inventions. Executive
will assign (and by this Agreement, hereby assigns) to the Company all of
Executive's rights to such Inventions, and to applications for patents or
copyrights in all countries and to patents and copyrights granted in all
countries. Upon the request of the Company, at its expense, Executive will apply
for such United States or foreign patents or copyrights as the Company may deem
desirable, and Executive will do any and all acts necessary in connection with
such applications for patents or copyrights, or assignments, in order to
establish in the Company the entire right, title and interest in and to such
patents or copyrights. If Executive renders assistance to the Company under this
3 - EMPLOYMENT AGREEMENT
paragraph after termination of employment, the Company shall pay a reasonable
fee as determined by the Company for Executive's time and expenses.
As used in this Agreement, the term "Inventions" shall mean
discoveries, improvements and ideas (whether or not in writing or reduced to
practice) and works of authorship, whether or not patentable or copyrightable
(i) which relate directly to the actual or demonstrably anticipated business
activity of the Company, (ii) which result from any work performed by Executive
for the Company, or (iii) for which equipment, supplies, facilities or
Confidential Information of Company utilized.
3.4 Return of Documents. Executive agrees that all originals and
copies of records, data, reports, documents, lists, plans, drawings,
correspondence, memoranda, notes, and other materials related to or containing
any Confidential Information or Inventions, in whatever form they exist, whether
written, film, tape, computer disk, or other form of media, shall be the sole
and exclusive property of the Company and shall be returned promptly to the
Company upon the termination of employment with the Company or on the written
request of the Company.
3.5 Reasonableness of Restrictions. Executive acknowledges that
the covenants set forth in this Section 3 (i) do not impose unreasonable
restrictions or work a hardship on Executive, (ii) are essential to the
willingness of the Company to employ Executive, (iii) are necessary and
fundamental to the protection of the business conducted by the Company, and (iv)
are reasonable as to scope, duration, and territory.
3.6 Injunction. Executive agrees that it may be difficult to
measure damage to the Company from any breach by Executive of Section 3 and that
monetary damages may be an inadequate remedy for any such breach. Accordingly,
Executive agrees that if Executive shall breach or take steps preliminary to
breaching any provision of Section 3, the Company shall be entitled, in addition
to all other remedies it may have at law or in equity, to a restraining order,
temporary and permanent injunctive relief, specific performance, or other
appropriate equitable relief, without showing or proving that any actual damage
has been sustained by the Company.
3.7 No Release. Executive agrees that the termination of
employment with the Company for any reason or the expiration of the term of this
Agreement shall not release Executive from any obligations under Section 3.
4. Termination of Employment.
4.1 Causes or Grounds for Termination of Employment. The
employment of Executive with the Company may be terminated as follows:
4.1.1 Either the Company or Executive may terminate the employment
of Executive for any reason and without cause by giving 90 days' prior written
notice to the other party; provided, however, that the Company may pay to
Executive 90 days of base compensation in lieu of giving such notice.
4.1.2 The Company shall have the right to terminate the employment
of Executive at any time, without notice and without payment of compensation in
lieu of notice, under any of the following conditions:
(a) For cause, including, but not limited to, (i) any form of
dishonesty, criminal conduct, or conduct involving moral turpitude connected
with the employment of Executive or
4 - EMPLOYMENT AGREEMENT
which otherwise reflects adversely on the reputation
or operations the Company, (ii) the refusal of Executive to comply with the
instructions, policies, or rules of the Company, (iii) continuing or repeated
problems with Executives' performance or conduct or Executive's inattention to
duties, or (iv) any material breach of Executive's obligations under this
Agreement; or
(b) Executive has suffered a disability as a result of
illness, accident, or other cause and is unable to perform a substantial portion
of Executive's usual duties of employment for a total (consecutive or
cumulative) of 30 days in any 12-month period after the date the disability
commenced.
4.1.3 Executive shall have the right to terminate his employment
with the Company for any material breach of the Company's obligations under this
Agreement.
4.2 Death. This Agreement and Executive's employment with the
Company shall terminate automatically on Executive's death.
4.3 Effect of Termination. On the termination of employment,
Executive (or Executive's estate in the event of Executives' death) shall
receive Executive's base compensation prorated through the effective date of
termination of employment and any other payments, including, but not limited to,
earned vacation pay, to which Executive is entitled under the Company's
policies. Any termination of employment shall automatically terminate
Executive's right to any additional compensation or other benefits paid by the
Company.
5. Miscellaneous.
5.1 Assignment. Neither this Agreement nor any of the rights,
interests, or obligations under this Agreement shall be assigned by any party
without the prior written consent of the other parties. If this contract is
assigned to a third party, it survives the transfer under the same terms and
conditions outlined herein. If there is a change in control of the Company, the
Executive is entitled to employment under the current terms of the contract or
compensation equal to his annual base compensation package.
5.2 Notices. All notices and other communications under this
Agreement must be in writing and shall be deemed to have been given if delivered
personally, sent by facsimile (with confirmation), mailed by certified mail, or
delivered by an overnight delivery service (with confirmation) to the parties to
the following addresses or facsimile numbers (or at such other address or
facsimile number as a party may designate by like notice to the other parties):
If to Company: NBG Radio Network
The Cascade Building
000 XX Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx
With a copy to: NBG Radio Network, Inc.
000 XX 0xx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxx
5 - EMPLOYMENT AGREEMENT
If to the Executive: Xxxx Xxxxxx
0000 XX Xxxx
Xxxxxxxx, XX 00000
Any notice or other communication shall be deemed to be given (a) on
the date of personal delivery, (b) at the expiration of the third day after the
date of deposit in the United States mail, or (c) on the date of confirmed
delivery by facsimile or overnight delivery service.
5.3 Amendments. This Agreement may be amended only by an
instrument in writing executed by all the parties.
5.4 Construction. The captions used in this Agreement are provided
for convenience only and shall not affect the meaning or interpretation of any
provision of this Agreement. All references in this Agreement to "Section" or
"Sections" without additional identification refer to the Section or Sections of
this Agreement. All words used in this Agreement shall be construed to be of
such gender or number as the circumstances require. Whenever the words "include"
or "including" are used in this Agreement, they shall be deemed to be followed
by the words "without limitation." References to any person shall include the
successors and assigns of such person.
5.5 Counterparts. This Agreement may be executed in counterparts,
each of which will be considered an original and all of which together will
constitute one and the same agreement.
5.6 Facsimile Signatures. Facsimile transmission of any signed
original document, and retransmission of any signed facsimile transmission,
shall be the same as delivery of an original. At the request of either party,
the parties shall confirm facsimile transmitted signatures by signing an
original document.
5.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oregon, without regard to
conflict-of-laws principles.
5.8 Attorney Fees. If any arbitration, suit, or action (including
any proceeding brought under the United States Bankruptcy Code) is instituted to
interpret or enforce the provisions of this Agreement, to rescind this
Agreement, or otherwise with respect to the subject matter of this Agreement,
the party prevailing on an issue shall be entitled to recover with respect to
such issue, in addition to costs, reasonable attorney fees and other legal
expenses incurred in preparation or in prosecution or defense of such
arbitration, suit, or action as determined by the arbitrator or trial court, and
if any appeal is taken from such decision, reasonable attorney fees as
determined on appeal.
5.9 Severability. If any provision of this Agreement shall be
invalid or unenforceable in any respect for any reason, the validity and
enforceability of any such provision in any other respect and of the remaining
provisions of this Agreement shall not be in any way impaired.
5.10 Entire Agreement. This Agreement (including the agreement,
documents and instruments referred to in this Agreement) constitutes the entire
agreement and understanding of the parties with respect to the subject matter of
this Agreement and supersedes all prior understandings and agreements, whether
written or oral, among the parties with respect to such subject matter.
6 - EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE COMPANY: EXECUTIVE:
NBG Radio Network, Inc.
----------------------------------
Xxxx Xxxxxx, individually
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
7 - EMPLOYMENT AGREEMENT
