AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED EMPLOYMENT AGREEMENT (this "Agreement") is entered into as
of July 1, 2001, 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 creating, producing,
syndicating, distributing and acting as a sales representative for radio
programs and offering miscellaneous other products and services to the radio
industry (the "Company Business").
B. The parties entered into an Employment Agreement dated November 1,
1998, which includes among other items covenants regarding proprietary and
confidential information, inventions and noncompetition. The parties acknowledge
that the terms and conditions of this Agreement regarding the covenants
concerning proprietary and confidential information and inventions supplement
and clarify any similar preexisting covenants in the Employment Agreement or
other agreement or understanding. The parties acknowledge that the terms of the
noncompetition covenant (Paragraphs 3.1 and 3.2) remain the same as those
contained in the Employment Agreement.
C. The parties acknowledge and agree that the terms and conditions of
this Agreement constitute a bona fide advancement of Executive with the Company.
D. 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 Executive Vice
President of Sales for a term commencing as of the date of this Agreement and
continuing through December 31, 2004, 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 supervising, directing and administering all advertising sales of the
Company, which includes managing staff, building programming lineup of the
Company, building relationships with other radio industry executives in the
United States, and identifying new advertising sales opportunities for the
Company. Executive shall perform such specific duties and shall exercise such
specific authority as may be assigned to Executive
1 - EMPLOYMENT AGREEMENT
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.
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 $350,000.00 per year, payable in equal periodic installments
according to the Company's customary payroll practices. Executive's base
compensation shall be reviewed and adjusted annually by the board of directors
of the Company, but in no event shall the base compensation be less than
$350,000 per year plus a minimum annual raise equal to the current rate of the
Consumer Price Index plus an additional 10% raise in each year that the
Company's revenues equal or exceed the amount listed below:
2002 $20 million
2003 $25 million
2.2 Incentive Compensation. As further compensation, commencing on or
after June 1, 2001, Executive shall be entitled to the following performance
bonuses:
2.2.1 In the event that actual revenues of the Company equal
or exceed any monthly revenue performance target set forth on Exhibit 2.2, the
Company shall pay to Executive the corresponding monthly performance bonus set
forth on Exhibit 2.2, payable on the tenth day of every month for each preceding
month.
2.2.2 In the event that the actual EBITDA (as defined below)
equals or exceeds the annual EBITDA performance target for any fiscal year as
set forth on Exhibit 2.2, the Company shall pay to Executive the corresponding
annual performance bonus set forth on Exhibit 2.2, payable within 90 days of the
end of the fiscal year end. Except as provided in Section 4.2, Executive must be
employed by Company for the entire fiscal year in order to receive the annual
performance described in this Section 2.2.2.
2.2.3 In the event that the actual EBITDA equals or exceeds
the annual EBITDA performance target for any fiscal year as set forth on Exhibit
2.2, the Company shall within 90 days of the end of the fiscal year grant to
Executive nonqualified stock options to purchase the number of shares of the
Company's common stock indicated on Exhibit 2.2 at 90% of then-current fair
market value of the common stock as of the last day of the fiscal year, in
accordance with the terms and conditions contained in the Company's 1998 Stock
Incentive
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Plan. All such options will vest upon the third anniversary of this Agreement
unless Executive is involuntarily terminated, without cause, pursuant to Section
4.2 prior to the third anniversary of this Agreement, in which case all options
earned by Executive prior to such termination will vest immediately. The board
of directors of the Company shall make a good faith determination of the fair
market value of the common stock of the Company. If the common stock of the
Company is not publicly traded on the date that the exercise price is determined
(i.e., the last day of the applicable fiscal year), the board of directors may
consider any valuation methods it deems appropriate and may, but is not required
to, obtain one or more independent appraisals of the Company. If the common
stock of the Company is publicly traded on the date that the exercise price is
determined, the fair market value shall be deemed to be the average closing
price of the common stock as reported on the OTC Bulletin Board, any exchange or
NASDAQ over the last 30 trading days preceding the date that the exercise price
is determined, or, if there has been no sales during the last 30 days, on the
last preceding date on which a sale occurred or such other value of the common
stock as shall be specified by the board of directors of the Company.
2.2.4 For purposes of this Agreement, the term "EBITDA" means
the Company's earnings before interest, taxes, depreciation and amortization
calculated by reference to the audited consolidated accounts of the Company
(including all of its subsidiaries) for each calendar year prepared on the basis
of generally accepted accounting principles consistently applied. EBITDA shall
be determined by the certified public accounting firm regularly engaged by the
Company and such determination shall be binding upon the Company and Executive.
The Company and Executive agree to negotiate in good faith and in advance the
performance targets and bonuses for any period for which no performance target
or bonus has been established on Exhibit 2.2 and to amend Exhibit 2.2 from time
to time to reflect the results of such negotiations.
2.3 Other Benefits. Base compensation and incentive 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. Executive shall be entitled to vacation time as set forth
in the Company's Employee Handbook.
2.7 Illness. Executive shall be entitled to paid sick leave as set
forth in the Company's Employee Handbook.
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3. Noncompetition; Confidentiality; Inventions.
3.1 Noncompetition. 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 Section, 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
Section.
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 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.
3.2 Nonsolicitation. To the fullest extent allowed by applicable law,
for the period commencing on the date of this Agreement and ending 24 months
after the date that Executive's employment with the Company terminates for any
reason, Executive covenants and agrees that 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.
3.3 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
4 - EMPLOYMENT AGREEMENT
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.
3.4 As used in this Agreement, "Confidential Information" means (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.
3.5 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 paragraph
after termination of employment, the Company shall pay a reasonable fee as
determined by the Company for Executive's time and expenses.
3.6 As used in this Agreement, the term "Inventions" means 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 Company Business or other 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 the Company was utilized.
3.7 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
5 - EMPLOYMENT AGREEMENT
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.
3.8 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.
3.9 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.
3.10 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. The employment of Executive with the
Company may be terminated as follows:
4.1 Executive may terminate the employment of Executive for any reason
and without cause by giving 90 days' prior written notice to the Company. If
Executive voluntarily resigns, Executive shall receive (i) Executive's base
compensation prorated through the effective date of the resignation, (ii) any
incentive compensation under Section 2.2.1 prorated through the effective date
of the termination, and (iii) any accrued but unused vacation pay through the
effective date of the resignation to which Executive is entitled under this
Agreement and the Company's policies. All payments of base compensation and
incentive compensation shall be made on the Company's standard payroll schedule
as if Executive had not voluntarily resigned unless required earlier by
applicable law. Executive's right to any additional compensation (including
incentive compensation under Sections 2.2.2 and 2.2.3) or other benefits paid by
the Company will cease as of the effective date of the resignation.
4.2 Subject to Section 5, the Company may terminate the employment of
Executive for any reason and without cause by giving 90 days' prior written
notice to Executive; provided, however, that the Company may pay to Executive 90
days of base compensation in lieu of giving such notice. If Executive is
terminated without cause, Executive shall receive (i) Executive's base
compensation prorated through the effective date of the termination (less any
base compensation paid in lieu of providing notice), (ii) any incentive
compensation under Section 2.2.1 prorated through the effective date of the
termination, (iii) any incentive compensation under Sections 2.2.2 and 2.2.3
prorated through the effective date of the termination, (iv) any accrued but
unused vacation pay through the date of termination to which Executive is
entitled under this Agreement and the Company's policies, and (v) one year
severance pay equal to 75% of Executive's base compensation on the date of the
termination paid in 12 equal monthly
6 - EMPLOYMENT AGREEMENT
installments. All payments of base compensation and incentive compensation shall
be made on the Company's standard payroll schedule as if Executive had not been
terminated unless required earlier by applicable law. Executive's right to any
additional compensation (including incentive compensation under Sections 2.2 for
the remainder of any measuring period) or other benefits paid by the Company
will cease as of the effective date of the termination.
4.3 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, 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. If Executive is properly terminated for cause, Executive
shall receive (i) Executive's base compensation prorated through the effective
date of the termination, and (ii) any accrued but unused vacation pay through
the date of termination to which Executive is entitled under this Agreement and
the Company's policies. All payments shall be made in accordance with applicable
law. Executive's right to any additional compensation (including incentive
compensation under Sections 2.2 for the remainder of any measuring period) or
other benefits paid by the Company will cease as of the effective date of the
termination.
4.4 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, if 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. If
Executive is properly terminated under this Section, Executive shall receive (i)
Executive's base compensation prorated through the effective date of the
termination, (ii) any incentive compensation under Section 2.2.1 prorated
through the effective date of the termination, (iii) any incentive compensation
under Sections 2.2.2 and 2.2.3 prorated through the effective date of the
termination, and (iv) any accrued but unused vacation pay through the date of
termination to which Executive is entitled under this Agreement and the
Company's policies. All payments of base compensation and incentive compensation
shall be made on the Company's standard payroll schedule as if Executive had not
been terminated unless required earlier by applicable law. Executive's right to
any additional compensation (including incentive compensation under Sections 2.2
for the remainder of any measuring period) or other benefits paid by the Company
will cease as of the effective date of the termination.
4.5 Subject to Section 5, Executive shall have the right to terminate
his employment with the Company for (i) any material breach of the Company's
obligations under this Agreement or (ii) assignment of Executive without his
consent to a position, responsibilities or duties of a materially lesser status
or degree of responsibility than his position, responsibilities or duties at the
effective date of this Agreement, by giving 90 days' prior written notice (which
cites the specific events giving rise to the right to terminate this Agreement)
to the Company. If such grounds for termination exist, the Company may pay to
Executive 90 days of base compensation in lieu of continued service by Executive
to the Company. If Executive
7 - EMPLOYMENT AGREEMENT
voluntarily resigns following constructive termination, Executive shall receive
(i) Executive's base compensation prorated through the effective date of the
termination (less any base compensation paid in lieu of providing continued
service), (ii) any incentive compensation under Section 2.2.1 earned through the
effective date of the termination, (iii) any incentive compensation under
Sections 2.2.2 and 2.2.3 prorated through the effective date of the termination,
and (iv) any accrued but unused vacation pay through the date of termination to
which Executive is entitled under this Agreement and the Company's policies. All
payments of base compensation and incentive compensation shall be made on the
Company's standard payroll schedule as if Executive had not been terminated
unless required earlier by applicable law. Executive's right to any additional
compensation (including incentive compensation under Sections 2.2 for the
remainder of any measuring period) or other benefits paid by the Company will
cease as of the effective date of the termination.
4.6 Executive's employment with the Company shall terminate
automatically on Executive's death. If Executive's employment is terminated by
reason of death, Executive's estate shall receive (i) Executive's base
compensation prorated through the effective date of the termination, (ii) any
incentive compensation under Section 2.2.1 prorated through the effective date
of the termination, (iii) any incentive compensation under Sections 2.2.2
prorated through the effective date of the termination, and (iv) any accrued but
unused vacation pay through the date of termination to which Executive is
entitled under this Agreement and the Company's policies. All payments of base
compensation and incentive compensation shall be made on the Company's standard
payroll schedule as if Executive had not been terminated unless required earlier
by applicable law. Executive's right to any additional compensation (including
incentive compensation under Sections 2.2 for the remainder of any measuring
period) or other benefits paid by the Company will cease as of the effective
date of the resignation.
5. Change in Control.
5.1 Change in Control. Notwithstanding anything to the contrary in
Sections 4.2 or 4.5, if Executive's employment is terminated by the Company
without cause pursuant to Section 4.2 or Executive resigns pursuant to Section
4.5 within a year after a Control Change (as defined below), Executive shall
receive (i) 12 months of base compensation (instead of 90 days of base
compensation as provided in Sections 4.2 or 4.5, respectively) less any base
compensation paid in lieu of providing notice or continue service, as the case
may be, (ii) any incentive compensation under Section 2.2.1 prorated through the
effective date of the termination, (iii) any incentive compensation under
Sections 2.2.2 and 2.2.3 prorated through the effective date of the termination,
and (iv) any accrued but unused vacation pay through the date of termination to
which Executive is entitled under this Agreement and the Company's policies. All
payments of base compensation and incentive compensation shall be made on the
Company's standard payroll schedule as if Executive had not resigned or been
terminated. Executive's right to any additional compensation (including
incentive compensation under Sections 2.2 for the remainder of any measuring
period) or other benefits paid by the Company will cease as of the effective
date of the termination.
5.2 For purposes of this Agreement, a "Control Change" means the sale
of substantially all of the Company's assets to, or acquisition of a majority of
the Company's
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voting stock or entry into a voting or common control agreement covering a
majority of the Company's voting stock by, a person or entity (or a set of
persons or entities under effective common control) in which those controlling
the acquiring person, persons, entity or entities are not the same as those who
have majority ownership and effective control of the Company before the sale or
acquisition.
5.3 Equivalent Treatment Transactions. The Company may engage in
acquisitions, mergers, or other similar transactions that do not amount to a
Control Change, but as a result of which the Company determines to restructure
its executive team. If the board of directors of the Company (or any committee
of the board charged with responsibility for executive compensation) in its sole
discretion determines that Executive's employment was (or is to be) terminated
without cause pursuant to Section 4.2 due to changes in the executive team
occasioned by such a transaction, then that transaction will be treated as one
in which a Control Change occurred on the date Executive's employment is
terminated, or on the date of the determination, whichever is later.
6. Miscellaneous.
6.1 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; provided, however, the
Company may assign its rights, interests, or obligations under this Agreement to
any affiliate of the Company without the prior written consent of Executive. If
this Agreement is assigned to a third party, it survives the transfer under the
same terms and conditions set forth in this Agreement.
6.2 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):
6.3 If to Company: NBG Radio Network, Inc.
The Cascade Building
000 XX Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, III
6.4 With a copy to: Xxxxxxx, Xxxxxxxxxx & Xxxxx, P.C.
0000 XX Xxxxx Xxxxxx, Xxxxxx 0000-0000
Xxxxxxxx, Xxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx
6.5 If to the Executive: Xxxx Xxxxxx
0000 XX Xxxx
Xxxxxxxx, Xxxxxx 00000
9 - EMPLOYMENT AGREEMENT
6.6 Any notice or other communication shall be deemed to be given (i)
on the date of personal delivery, (ii) at the expiration of the third day after
the date of deposit in the United States mail, or (iii) on the date of confirmed
delivery by facsimile or overnight delivery service.
6.7 Amendments. This Agreement may be amended only by an instrument in
writing executed by all the parties.
6.8 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.
6.9 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.
6.10 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.
6.11 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.
6.12 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.
6.13 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.
6.14 Entire Agreement. Except with respect to Executive's stock option
agreements and Executive's agreements and covenants with the Company concerning
proprietary and confidential information, inventions and competition, this
Agreement (including the agreement, documents and instruments referred to in
this Agreement) supersedes all prior employment agreements or understandings
between the parties, whether written or oral. With respect to Executive's stock
option agreements and Executive's agreements and covenants with the
10 - EMPLOYMENT AGREEMENT
Company concerning proprietary and confidential information, inventions and
competition, this Agreement supplements such agreements and covenants.
6.15 Arbitration. Any controversy or claim arising out of or relating
to this Agreement, including, without limitation, the making, performance, or
interpretation of this Agreement, shall be settled by arbitration. Unless
otherwise agreed, the arbitration shall be conducted in Portland, Oregon and
administered by the Arbitration Service of Portland in accordance with its
then-current commercial arbitration rules. Unless otherwise agreed, the
arbitration shall be held before a single arbitrator. The arbitrator shall be
chosen from a panel of attorneys knowledgeable in the field of business law. If
the arbitration is commenced, the parties agree to permit discovery proceedings
of the type provided by the Federal Rules of Civil Procedure both in advance of,
and during recesses of, the arbitration hearings. The parties agree that the
arbitrator shall have no jurisdiction to consider evidence with respect to or
render an award or judgment for punitive damages (or any other amount awarded
for the purpose of imposing a penalty). The parties agree that all facts and
other information relating to any arbitration arising under this Agreement shall
be kept confidential to the fullest extent permitted by law. Any party may apply
to any court of competent jurisdiction for a judgment or decree enforcing the
arbitral award. The parties will advance jointly the arbitrators' fees and costs
of arbitration. The arbitrators shall award fees as specified in Section 6.8 and
may, in the arbitrators' discretion, award the prevailing party reimbursement
for its share of the arbitral fees and costs advanced. Any party may, without
inconsistency with this Agreement, seek from a court any interim or provisional
relief that may be necessary to protect the rights or property of that party
pending the selection of the arbitrators (or pending the arbitrators'
determination of the merits of the controversy or claim).
[SIGNATURE PAGE FOLLOWS]
------------------------
11 - EMPLOYMENT AGREEMENT
6.16 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.
By: /s/ XX Xxxxxxxxx /s/ Xxxx Xxxxxx
-------------------- --------------------
Name: XX Xxxxxxxxx Xxxx Xxxxxx, individually
Title: Secretary
12 - EMPLOYMENT AGREEMENT
EXHIBIT 2.2
INCENTIVE COMPENSATION
Section 2.2.1
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
Period Revenue Target Bonus if Bonus if Bonus if Bonus if Bonus if
95-99.9% of 100-100.9% of 101-105.9% of 106-110.9% of >111% of
Revenue Target Revenue Target Revenue Target Revenue Target Revenue Target
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
6/01 $1,340,108 $6,094 $6,250 $6,406 $6,719 $6,875
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
7/01 $1,592,130 $6,094 $6,250 $6,406 $6,719 $6,875
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
8/01 $1,592,130 $6,094 $6,250 $6,406 $6,719 $6,875
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
9/01 $1,592,130 $6,094 $6,250 $6,406 $6,719 $6,875
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
10/01 $1,835,152 $6,094 $6,250 $6,406 $6,719 $6,875
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
11/01 $1,953,732 $6,094 $6,250 $6,406 $6,719 $6,875
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
12/01 XXX XXX XXX XXX XXX XXX
------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
For example, if actual revenues in September 2001 equal $1,703,579 (or
107% of the performance revenue target for such period), then Executive's
performance bonus for September will be $6,719.
All monthly periods beginning December 2001 through December 2004 shall
be negotiated by the parties in accordance with Section 2.2 of the Employment
Agreement.
Section 2.2.2 and 2.2.3
---------------------------- -------------------------- ------------------------- --------------------------
Year EBITDA Target Cash Bonus Stock Option Bonus
---- ------------- ---------- ------------------
---------------------------- -------------------------- ------------------------- --------------------------
2001 $1,700,000 $75,000 100,000 Shares
---------------------------- -------------------------- ------------------------- --------------------------
2002 $3,000,000 $75,000 100,000 Shares
---------------------------- -------------------------- ------------------------- --------------------------
2003 $3,800,000 $75,000 100,000 Shares
---------------------------- -------------------------- ------------------------- --------------------------
2004 $5,000,000 $75,000 100,000 Shares
---------------------------- -------------------------- ------------------------- --------------------------
1 - EXHIBIT 2.2
