Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
January 1, 2001, by and between NBG Radio Network, Inc., a Nevada corporation
(the "Company"), and Xxxxxx X. 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 VP/Controller for a
term commencing as of the date of this Agreement and continuing until the third
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 financial aspects of company including but not limited to the
following: payroll, cash flow management, xxxxxxxx/collections, accounts
payable, accounts receivable, stock option management, SEC filings, post-buy
reports, payroll, medical/sarsep plans, host payments, yearly audit, commission
tracking, and Account Executive assistance with sales department. 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 $99,999.99 per year in year 1, $110,000 in year 2, and $120,000
in year 3, payable in equal bi-monthly installments on the first and fifteenth
day of each month.
2.2 Bonuses. The Company may pay to Executive a bonus, at such times
and in such amounts as the Company may determine in its sole discretion;
provided, however, that this Agreement shall not be construed to require the
Company to pay any bonus to Executive. Bonus plan for Executive is attached as
Exhibit "A".
2.3 Other Benefits. Base compensation and bonus 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
2 - EMPLOYMENT AGREEMENT
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
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
3 - EMPLOYMENT AGREEMENT
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
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 30 days' prior written
notice to the other party; provided, however, that the Company must pay to
Executive 180 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:
45 - EMPLOYMENT AGREEMENT
(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 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.
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: Xxxxxxx Xxxxxxxxxx & Xxxxx, P.C.
0000 XX Xxxxx Xxxxxx.
Xxxxx 0000, Xxxxxxx Center
Xxxxxxxx, Xxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx
5 - EMPLOYMENT AGREEMENT
If to the Executive: Xxxxxx X. Xxxxxx
0000 XX Xxxxx Xx
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.
/s/XXXXXX X. XXXXXX
----------------------------------
Xxxxxx X. Xxxxxx, individually
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
EXHIBIT A
Executive has the potential to earn an extra $60,000 per year in bonuses. The
$60,000 in bonus money is not guaranteed by the Company. Executive must perform
the following duties in an "above satisfactory" manner to be considered to
receive the bonus money at the Company's sole discretion.
Each of the following five (5) duties must be completed in an "above
satisfactory" level to have the potential to receive bonus money. Each duty will
count toward $1,000 in bonus money per month. For example, Executive has the
potential to receive $5,000 per month in bonus money. Each of the five items
accounts for 1/5 of that monthly allotment. If Executive successfully completes
4 of the 5 duties in an "above satisfactory" manner, then Executive is available
to receive a $4,000 bonus at the Company's sole discretion. However, this
Exhibit shall not be construed to require the Company to pay any bonus to
Executive.
1. Work a minimum of 8am-5pm Monday through Friday. Also to be on call 24
hours per day. If for any reason Executive will not be at work by the
stated times, then there must be a reasonable excuse phoned in before the
time slated for starting to President of the Company or XX Xxxxxxxxx.
2. Increase AQH on music shows programmed by Company on a monthly basis.
Always have positive AQH growth each month.
3. Manage and direct the in-house affiliate clearance staff and in-house
production/distribution staff of Company. In-house affiliate clearance
staff must always have a positive growth number on a weekly basis for
additions/deletions and the studio must always get programming and
commercials out in a timely manner each week. Manage in house design and
computer systems team. Must have low rate of complaints.
4. Affidavit retrieval for Company programming must be at 90% return each
month.
5. Staff must work 8am-5pm for all people you manage. Executive must also work
each workday 8am-5pm in order to receive this bonus. Appointments and sick
days are the only out from this clause for Executive.
