EXECUTIVE EMPLOYMENT AGREEMENT
THIS
AGREEMENT dated as of the 23rd day of April 2009, to be effective as
of the 7th Day of
May 2009, and amended on January 18, 2011with amendments effective on January
18, 2011(the effective date) by and between, Debut Broadcasting Corporation,
Inc., a Nevada corporation (the “Employer” or “Company”) and Xxxxxx
Xxxxxxx (the “Executive” or “Participant”). In consideration of the
mutual covenants contained in this Agreement, the Employer agrees to employ the
Executive and the Executive agrees to be employed by the Employer upon the terms
and conditions hereinafter set forth.
ARTICLE
1
TERM OF
EMPLOYMENT
1.1 Initial
Term. The initial term of employment hereunder shall
commence as of the effective date first written above (“Commencement Date”) and
shall continue for a period of fives year s from that date, unless terminated
earlier as provided under Article 5.
1.2 Renewal; Non- Renewal
Benefits to Executive. At the end of the initial term of
this Agreement, and on each anniversary thereafter, the term of Executive’s
employment shall be automatically extended one additional year unless, at least
30 days prior to such anniversary, the Executive shall have delivered to the
Employer written notice that the term of the Executive’s employment hereunder
will not be extended. The Employer shall have the right to provide such
non-renewal notice to Executive, on the same terms and conditions.
ARTICLE
2
DUTIES OF THE
EXECUTIVE
2.1 Duties. The
Executive shall be employed with the title of Chief Financial Officer with
responsibilities and authorities as are customarily performed by such position
including, but not limited to those duties as may from time to time be assigned
to Executive by the Board of Directors of Employer. Executive’s responsibilities
and authorities for operating policies and procedures are subject to the general
direction and control of the Board of Directors.
2.2 Extent and Place of
Duties. Executive shall devote working time, efforts,
attention and energies to the business of the Employer on a full time basis
working out of the Nashville, TN offices of the Company in addition to regular
trips for business and meetings on behalf of the Company.
2.3 Relocation. Executive may be
requested at the discretion and need of the company to devote working time,
efforts, attention, and energies to the business of the Employer on a full time
working basis out of a radio station Regional-Cluster office for intervals of up
to six contiguous months.
Should
relocation be required, employer will provide Executive with a minimum 30 days
notice of such relocation. Executive will be provided with a one-time
lump sum relocation allowance of $1,000 (minus applicable taxes) to cover
ancillary expenses associated with this relocation. Employer shall
assume the lessor of the monthly rent or mortgage payment on Executive’s current
residence or temporary residence until such time as the Executive sells the
current residence at a fair market value, or until such time as the six month
period expire, or if prior to six months executive is requested at the
discretion and need of the company to return.
Executive
may at his or her discretion request the company to allow relocation to be
permanent. Should company determine upon request of
executive that it is in the best interest of the company for executive to
relocate to a radio station Regional-Cluster office on a permanent basis, a
one-time lump sum relocation allowance of an additional $7,000 (minus applicable
taxes) to cover ancillary expenses associated with relocation will be
provided.
2.4 Limitation of Executive
Power. Executive is bound to follow all policies and
procedures in the Debut Broadcasting Employee Handbook as revised from time to
time. During the normal course of business, Executive may be
requested to sign contracts associated with the ongoing matters of the
company. Executive may not solely authorize the execution of any
contract. A minimum of two signatures of any of Chief
Executive Officer, Chief Operating Officer, or Chief Financial Officer, shall be
required unless further restricted to Board approval under the Debut
Broadcasting Purchase Order Policy. Should Executive solely authorize
the execution of any contract that becomes disputed by the company, Executive
shall assume full responsibility for any fees incurred during such dispute, not
limited to court costs, attorneys fees, and arbitration.
Executive additionally agrees to follow
the guidelines established by the Securities and Exchange Commission, the bylaws
of the Company, and the Articles of Incorporation of the Company and all
stipulations incorporated therein that limit executive power.
ARTICLE
3
COMPENSATION OF THE
EXECUTIVE
3.1 Salary. As
compensation for services rendered under this Agreement, the Executive shall
receive a salary of $125,000 per year beginning in years one and two of this
agreement, and $150,000 per year for years three four and five of this
agreement. Salary shall be adjusted according to regional standards
for like businesses in each year thereafter. Executive’s salary is
payable in accordance with Employer’s normal business practices, and subject to
the deferred compensation plan. The parties agree that the salary and
compensation package will be reviewed at the end of the initial year by the
Compensation Committee of the Board of Directors.
3.2 Bonus. Executive
shall be eligible for performance based bonuses. Executive shall earn
bonus of $4,000 per quarter in each quarterly period upon the filing of the
company’s quarterly or annual report on form 10Q or 10K with the securities and
exchange commission. Amounts of such bonuses are subject to change
from time to time at the discretion of the board of directors.
3.3 Benefits. Executive
shall be entitled to participate in all of Employer’s employee benefit plans and
employee benefits, including any retirement, pension, profit-sharing, stock
option, insurance, hospital or other plans and benefits which now may be in
effect or which may hereafter be adopted, it being understood that Executive
shall have the same rights and privileges to participate in such plans and
benefits as any other executive employee during the term of this Agreement.
Participation in any benefit plans shall be in addition to the compensation
otherwise provided for in this Agreement.
The Company may lease a vehicle for the
exclusive benefit of the Executive. Should any such lease be entered
into, the monthly expense to the Company for any vehicle shall not exceed
$700. All lease payments shall be made directly to the lessor, and
shall not be included in the compensation of the Executive. All
vehicle and equipment leases shall be the sole property of the company, and may
be terminated by the company at any time. Executive’s privileges and
benefits associated with any lease shall terminate simultaneously with any
termination from employment with the Company. Executive shall be
responsible for the maintenance, care, insurance and management of mileage on
any leased vehicle. Should any vehicle usage by Executive result in
any charge over and above the minimum monthly leasing fee, any and all such
charges shall be the responsibility of the Executive benefiting from usage of
the vehicle.
3.4 Expenses. Executive
shall be entitled to prompt reimbursement for all reasonable expenses incurred
by Executive in the performance of his duties hereunder. Executive shall be
provided a credit card that may be utilized for any reasonable, usual, and
customary expenses that occur in the normal course of business. All
expenses incurred by Executive, whether reimbursed or charged to company
accounts, must comply with the company purchase order policy, as amended from
time to time.
3.5 Employee Stock
Options. Upon the Commencement Date of this Agreement
and on the anniversary of each year of this agreement thereafter, Executive
shall be granted 100,000, options to purchase common stock of the Company at the
market price on the date of such grant. Such options shall be under the
Company’s 2007 Stock Incentive Plan, as amended and may consist of a combination
of Incentive and non-qualified options as are to be determined. Such options
will be subject to the provisions of the Company’s 2007 Stock Incentive
Plan.
3.6 Deferred Compensation
Agreement Upon the Commencement Date of this Agreement,
Executive shall agree that a portion of his or her compensation in an amount
determined from time to time by the Board shall be placed in a separate deferred
compensation account. The deferred compensation amount shall at a
maximum be 30% of the Executive’s gross base annual salary, but shall not reduce
the Executives non-deferred compensation level from date of this
agreement. The deferred compensation shall be credited to the
Participant’s deferred compensation account (“the Account”) on the books of the
Company on the last day of each month of each year commencing April 30,
2009.
The
Account of a Participant shall consist of book entries only, and shall not
constitute a separate fund held in trust for, or as security for, the Company’s
obligation to pay the amount of the Account to the Participant.
3.7 Incentive Stock Awards.
From time to time Executive may be requested to personally guarantee debt
financing on behalf of the employer. Upon the commencement of a
guarantee agreement, Executive shall be awarded stock at the discretion of the
board of directors of the company. On the first day of each quarter
of each year of the guarantee period thereafter, Executive shall be awarded
250,000 shares of common stock of the Company. Such stock awards are
to be restricted for a period of one year, and shall hold piggy-back
registration rights if un-registered at the time of issuance.
ARTICLE
4
NON-COMPETITION;
CONFIDENTIALITY
4.1 During
the term of this Agreement, the Executive may make passive investments in
companies involved in industries in which the Company operates, provided any
such investment does not exceed a 5% equity interest, unless Executive obtains
consent to acquire an equity interest exceeding 5% by a vote of a majority of
the directors.
4.2 During
the term of this Agreement the Executive may maintain any existing outside Board
member positions and that, subject to Debut Board approval, which will not be
unreasonably withheld, the Executive could join additional non-competitive
Boards as an Independent Board member as well, not to exceed a total of five
boards.
4.3 Except
as provided in this Section 4 hereof, the Executive may not participate in any
business or other areas of business in which the Company is engaged during the
term of this Agreement except those he is currently engaged in or through and on
behalf of the Company, without the consent from a majority of the
directors.
4.4 a. The
Executive recognizes and acknowledges that the information, business, list of
the Employer’s customers and any other trade secret or other secret or
confidential information relating to Employer’s business as they may exist from
time to time are valuable, special and unique assets of Employer’s business.
Therefore, Executive agrees as follows:
(1) That
Executive will hold in strictest confidence and not disclose, reproduce, publish
or use in any manner, whether during or subsequent to this employment, without
the express authorization of the Board of Directors of the Employer, any
information, business, customer lists, or any other secret or confidential
matter relating to any aspect of the Employer’s business, except as such
disclosure or use may be required in connection with Executive’s work for the
Employer.
(2) That
upon request or at the time of leaving the employ of the Employer the Executive
will deliver to the Employer, and not keep or deliver to anyone else, any and
all notes, memoranda, documents and, in general, any and all material relating
to the Employer’s business.
(3) That
the Board of Directors of Employer may from time to time reasonably designate
other subject matters requiring confidentiality and secrecy which shall be
deemed to be covered by the terms of this Agreement.
b. In
the event of a breach or threatened breach by the Executive of the provisions of
this paragraph 4.4, the Employer shall be entitled to an injunction (i)
restraining the Executive from disclosing, in whole or in part, any information
as described above or from rendering any services to any person, firm,
corporation, association or other entity to whom such information, in whole or
in part, has been disclosed or is threatened to be disclosed; and/or (ii)
requiring that Executive deliver to Employer all information, documents, notes,
memoranda and any and all other material as described above upon Executive’s
leave of the employ of the Employer. Nothing herein shall be construed as
prohibiting the Employer from pursuing other remedies available to the Employer
for such breach or threatened breach, including the recovery of damages from the
Executive.
c. Executive
hereby agrees that upon the execution of this Agreement he will sign the
Company’s standard forms of; Code of Conduct, Confidentiality, Xxxxxxx Xxxxxxx
Policy and Inventions agreements.
ARTICLE
5
TERMINATION OF
EMPLOYMENT
5.1 Termination.
The Executive's employment hereunder may be terminated
without any breach of this Agreement only under the following
circumstances:
1. By
Executive. Upon the occurrence of any of the following
events, this Agreement may be terminated by the Executive by written notice to
Employer:
(1) if
Employer makes a general assignment for the benefit of creditors, files a
voluntary bankruptcy petition, files a petition or answer seeking a
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any law, or there shall have been filed any petition or
application for the involuntary bankruptcy of Employer, or other similar
proceeding, in which an order for relief is entered or which remains undismissed
for a period of thirty days or more, or Employer seeks, consents to, or
acquiesces in the appointment of a trustee, receiver, or liquidator of Employer
or any material part of its assets;
(2) the
sale by Employer of substantially all of its assets or a change of control of
over 50% of Employer;
(3) a
decision by Employer, approved by the Board to terminate its business and
liquidate its assets;
(4) a
material change in the business of the Employer, diminishing the executive’s job
function or usefulness to the Employer;
2. Death. This
Agreement shall terminate upon the death of Executive.
3. Disability. The
Employer may terminate this Agreement upon the disability of the Executive.
Executive shall be considered disabled (whether permanent or temporary as
defined by the Family Medical Leave Act as a period greater than 12 weeks and
less than 12 months) if he is incapacitated to such an extent that he is unable
to perform substantially all of his duties for Employer that he performed prior
to such incapacitation. Employer shall provide and maintain
disability insurance for an amount equal or greater to 80% of the Executive’s
total compensation for the exclusive benefit of the Executive, his heirs, or
assigns.
4. Other
Termination. The Employer may terminate the Executive’s
employment hereunder for any reason.
5.2 Notice of
Termination. Any termination of the Executive’s
employment by the Employer or by the Executive (other than termination pursuant
to subsection 5.1.2 above) shall be communicated by written Notice of
Termination to the other party.
5.3 Date of
Termination. “Date of Termination” shall mean (i) if the
Executive’s employment is terminated by his death, the date of his death; (ii)
if the Executive’s employment is terminated for Other Termination event (“Other
Termination Event”), the date on which a Notice of Termination is received by
the Executive; and (iii) if the Executive’s employment is terminated for any
other reason stated above, the date specified in a Notice of Termination by
Employer or Executive, which date shall be no less than 30 days following the
date on which Notice of Termination is given.
5.4 Compensation Upon
Termination.
1. Following
the termination of this Agreement pursuant to Section 5.1, the Executive shall
be entitled to compensation only through the Date of Termination; provided,
however, that Executive may be entitled to severance as set forth in this
Section 5.4.
2. Following
the termination of this Agreement pursuant to Section 5.1.2, Employer shall pay
to Executive’s estate the compensation which would otherwise be payable to
Executive for the six months following his death.
3. In
the event of disability of the Executive as described in Section 5.1.3, if
Employer elects to terminate this Agreement, Executive shall be entitled to
receive compensation through the Date of Termination plus the compensation which
would otherwise be payable to Executive for the six months following such
termination for his disability.
4. If Executive
is terminated by Employer for any reason other than death or disability as set
forth in this Article 5, then Executive is entitled to severance payments equal
to the greater of the remainder of the term of this agreement, or thirty six
months compensation following the date of Termination, under this Agreement.
Such amounts being payable at option of employer as a lump sum or
over such thirty six month periods’ normal payroll cycles.
5. If Executive
terminates this Agreement as set forth in Section 5.1.1., then Executive is
entitled to severance payments equal to twelve months compensation following the
date of Termination, under this Agreement. Such amounts being payable over such
twelve month periods’ normal payroll cycles.
5.5 Other Termination
Provisions. Executive agrees that upon termination of
this Agreement and upon reasonable request by the Board of Directors, Executive
shall resign from any then effective Board, Officer or Committee
positions.
5.6
Deferred Compensation
Benefit Payments. The Company agrees to pay the amount of the
Participant’s Account to the Participant or the Participant’s designated
beneficiary only upon the occurrence of the earliest of the
following:
1. If
the Participant’s employment hereunder is terminated on or after the Participant
shall have reached the age of 65, the Company shall pay to Participant in 120
monthly installments an amount equal to the fair market value of the assets in
the Account as of such date. Notwithstanding the foregoing, the total amount
payable to the Participant shall be appropriately increased or decreased as the
case may be, but not more than semi-annually, to reflect the appreciation or
depreciation in value and the net income or loss (if any) on the funds which
remain invested in the Account. If the Participant should die on or after his or
her 65th
birthday and before the 120 monthly payments are made, the unpaid balance will
continue to be paid in installments for the unexpired portion of such 120 month
period to his or her designated beneficiary in the same manner as set forth
above.
2. If
the Participant’s employment hereunder is terminated for any reason other than
death and Disability, but before the Participant shall have reached the age of
65, then the amount in the Account shall continue to be invested or held in cash
as the Board in its discretion may determine and no payments shall be made until
the Participant shall have reached the age of 65, at which time payments shall
be made in the same manner and to the same extent as set forth in Section 5.6.1
above. Notwithstanding the foregoing, if before reaching age 65 the Participant
should die, or if before reaching age 65 the Participant should become disabled,
then payments shall be made in the same manner and to the same extent as set
forth in Section 5.6.3 below.
3. If the
Participant’s employment is terminated because of Disability or death before he
or she has reached the age of 65, and while he or she is in the employ of the
Company, then the Company shall make 120 monthly payments to the Participant (in
the event of Disability) or the Participant’s designated beneficiary (in the
event of death) in the same manner and to the same extent as provided in Section
5.6.1 above.
4. If both
the Participant and his or her designated beneficiary should die before a total
of 120 monthly payments are made by the Company, then the remaining value of the
Account shall be determined as of the date of the death of the designated
beneficiary and shall be paid within 60 days in one lump sum to the estate of
such designated beneficiary.
5. The
beneficiary referred to in this paragraph may be designated or changed by the
Participant (without the consent of any prior beneficiary) on a form provided by
the Company and delivered to the Company before Participant’s death.
If no such beneficiary shall have been designated, or if no
designated beneficiary shall survive the Participant, a lump sum payment shall
be payable to the Participant’s estate within 60 days of the appointment of a
personal representative for the estate.
6. The
installment payments to be made to the Participant under Sections 5.6.1 and
5.6.3 above shall commence on the first day of the month next following the date
of the termination of the Participant’s employment, and the installment payments
to be made to the participant under Section 5.6.2 above shall commence on the
first day of the month next following the date on which the Participant shall
have reached the age of 65. The installment payments to be made to the
designated beneficiary under the provisions of this Section 5.6 shall commence
within 60 days from the date of death of the Participant.
7. No
280G Payments. Notwithstanding the forgoing, all sums payable hereunder shall be
reduced in such manner and to such extent so that no such payments made
hereunder when aggregated with all other payments to be made to the Participant
by the Company shall be deemed an “excess parachute payment” in accordance with
Code 280G and regulations promulgated thereunder and subject the Participant to
the excise tax provided at Section 4999(a) of the Code.
5.6 Remedies. Any
termination of this Agreement shall not prejudice any other remedy to which the
Employer or Executive may be entitled, either at law, equity, or under this
Agreement.
5.7 Default by Executive.
Any breach of this Agreement by Executive, including:
1. Refusal
to perform the duties usual and customary with the position held by the
executive,
2. Inability
to devote full time working hours to the position,
3.
Conflict of interest as further described in exhibit A of this agreement
“Limited Confidentiality and Non-Compete Agreement”
4. Violation
of confidentiality as further described in exhibit A of this
agreement “Limited Confidentiality and Non-Compete
Agreement”
5.
Sharing trade secrets as further described in exhibit B of this agreement
“Proprietary Information and Inventions Agreement”,
6.
Resignation,
7.
Refusal to comply with relocation according to the terms of section 2.2.3
above
8. Abuse
of executive power as defined in section 2.2.4 above, and/or
9. Violation
of any other terms of the agreement.
Shall be
considered voluntary termination by executive, relieving employer of all duties
and liabilities payable to Executive. Such termination, not within
the guidelines set forth in section 5.1.1 above, shall further constitute
forfeiture of the full balance of the Executive’s deferred compensation
account.
ARTICLE
6
INDEMNIFICATION
To
the fullest extent permitted by applicable law, Employer agrees to indemnify,
defend and hold Executive harmless from any and all claims, actions, costs,
expenses, damages and liabilities, including, without limitation, reasonable
attorneys’ fees, hereafter or heretofore arising out of or in connection with
activities of Employer or its employees, including Executive, or other agents in
connection with and within the scope of this Agreement or by reason of the fact
that he is or was a director or officer of Employer or any affiliate of
Employer. To the fullest extent permitted by applicable law, Employer shall
advance to Executive expenses of defending any such action, claim or proceeding.
However, Employer shall not indemnify Executive or defend Executive against, or
hold him harmless from any claims, damages, expenses or liabilities, including
attorneys’ fees, resulting from the gross negligence or willful misconduct of
Executive. The duty to indemnify shall survive the expiration or early
termination of this Agreement as to any claims based on facts or conditions
which occurred or are alleged to have occurred prior to expiration or
termination.
ARTICLE
7
GENERAL
PROVISIONS
7.1 Governing
Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Tennessee.
7.2 Arbitration. Any
controversy or claim arising out of or relating to this Agreement or the breach
thereof shall be settled by arbitration in the City and County
of Davidson, Tennessee in accordance with the rules then existing of
the American Arbitration Association and judgment upon the award may be entered
in any court having jurisdiction thereof.
7.3 Entire
Agreement. This Agreement supersedes any and all other
Agreements, whether oral or in writing, between the parties with respect to the
employment of the Executive by the Employer. Each party to this Agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by either party, or anyone acting on behalf
of any party, that are not embodied in this Agreement, and that no agreement,
statement, or promise not contained in this Agreement shall be valid or
binding.
7.4 Successors and
Assigns. This Agreement, all terms and conditions
hereunder, and all remedies arising herefrom, shall inure to the benefit of and
be binding upon Employer, any successor in interest to all or substantially all
of the business and/or assets of Employer, and the heirs, administrators,
successors and assigns of Executive. Except as provided in the preceding
sentence, the rights and obligations of the parties hereto may not be assigned
or transferred by either party without the prior written consent of the other
party.
7.5 Notices. For
purposes of this Agreement, notices, demands and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States registered mail,
return receipt requested, postage prepaid, addressed as follows:
Executive:
Xxxxxx
Xxxxxxx
Employer:
Debut
Broadcasting Corporation, Inc
With
a
copy
to: Xxxxx Xxxxxxx and Associates, PLLC
or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
7.6 Severability. If
any provision of this Agreement is prohibited by or is unlawful or unenforceable
under any applicable law of any jurisdiction as to such jurisdiction, such
provision shall be ineffective to the extent of such prohibition without
invalidating the remaining provisions hereof.
7.7 Section
Headings. The section headings used in this Agreement
are for convenience only and shall not affect the construction of any terms of
this Agreement.
7.8 Survival of
Obligations. Termination of this Agreement for any
reason shall not relieve Employer or Executive of any obligation accruing or
arising prior to such termination.
7.9 Amendments. This
Agreement may be amended only by written agreement of both Employer and
Executive.
7.10 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute
only one legal instrument. This Agreement shall become effective when copies
hereof, when taken together, shall bear the signatures of both parties hereto.
It shall not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
7.11 Fees and
Costs. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys’ fees, costs and necessary disbursements in
addition to any other relief to which that party may be
entitled.
IN
WITNESS WHEREOF, Employer and Executive enter into this Executive Employment
Agreement effective as of the date first set forth above.
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Debut
Broadcasting Corporation, Inc. - "EMPLOYER"
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By
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Name Xxxxx
Xxxxx
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Title Chairman
of the Compensation Committee
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Xxxxxx
Xxxxxxx - "EXECUTIVE"
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Signed
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Xxxxxx
Xxxxxxx, Individually
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EXHIBIT
A
LIMITED CONFIDENTIALITY AND
NON-COMPETE AGREEMENT
This
AGREEMENT is by and
between Debut Broadcasting Corporation, Inc and any and all of their
predecessors, successors, assigns, subsidiaries, parents, affiliates and their
respective directors, officers, employees, agents, attorneys and
representatives, past, present or future (“the Company”) and Xxxxxx Xxxxxxx
(“Xxxxxxx”).
WHERE AS, Xxxxxxx serves as
Chief Financial Officer of Debut Broadcasting Corporation, and
WHEREAS, the Company and
Xxxxxxx xxxx it desirable to execute a written document setting forth certain
agreements to become effective as of the date of execution of Xxxxxxx’ Executive
Employment Agreement with the Company,
NOW THEREFORE, in
consideration of the promises and mutual obligations set forth in this
Agreement, the Company and Xxxxxxx agree as follows:
I. Consideration.
Beginning
May 7, 2009, and for a period of five (5) years thereafter, Xxxxxxx shall be
eligible and responsible for the rights and responsibilities incorporated herein
by reference to the Executive Employment Agreement by and between Xxxxxxx and
Debut Broadcasting Corporation. Such consideration shall
automatically extend and renew at each renewal period of the Executive
Employment Agreement.
II. Limited Release and
Waiver.
Except as
described below, and except for the Company’s obligations to Xxxxxxx under this
Agreement, in consideration of the benefits described in Section I above, and
other good and valuable consideration, the receipt and sufficiency of which
Xxxxxxx acknowledges by her signature on this Agreement, Xxxxxxx does, for
herself, her heirs, personal representatives, agents and assigns, fully,
absolutely, and unconditionally hereby release the Company from any and all
claims, demands, liabilities, causes of action, and fees (including attorneys’
fees), whether known or unknown, up to the time the Xxxxxxx signs this
Agreement, that could be subject of a lawsuit, including, but not limited to,
those arising out of or in any way related to Xxxxxxx’ employment and/or
resignation from employment by the Company. Xxxxxxx acknowledges that the
released and waived claims include, but are not limited to, those arising out of
or related to the Age Discrimination in Employment Act of 1967, Title VII of the
Civil Rights Act of 1864, the Civil Rights Act of 1866 and 1871, the Americans
with Disabilities Act of 1990, the Tennessee Human Rights Act, the Family and
Medical Leave Act of 1993, and the Employee Retirement Income Security Act of
1974, all as amended, as well as claims of negligence, tort, breach of contract,
or those arising under any other federal or state or local statute, ordinance,
regulation, or common law. Nothing in this Agreement will operate to waive or
release any claim, etc. that arises only after the signing of this Agreement.
Notwithstanding the foregoing, nothing in this Agreement shall operate or be
construed to release, waive, relinquish, modify, or diminish, in any way,
Xxxxxxx’ rights and claims to receive from the Company the specified
compensation, stock, and benefits, and any other compensation, stock, and
benefits to which Xxxxxxx is entitled under any agreement, under the terms of
his employment by the Company or by operation of law except as set forth above,
all of which compensation, stock, and benefits the Company hereby expressly
acknowledges and agrees that Xxxxxxx is entitled to receive, and that the
Company shall pay, convey, grant, or provide to Xxxxxxx.
III. Limited Confidentiality and
Non-Disclosure.
Except as
stated below, in order to protect the legitimate interests of the Company,
Xxxxxxx agrees that she will not disclose to any other persons or entities,
directly or indirectly, any proprietary information relating to the Company’s
business and/or financial plans or other confidential business information
and/or trade secrets of the Company which Xxxxxxx received or to which Xxxxxxx
was given access during her employment with the Company.
However,
with the concurrence of the Board of Directors of Debut Broadcasting
Corporation, this obligation of confidentiality and non-disclosure shall not
apply to mutually agreed statements concerning the existence, subject matter,
content, or substance of this Agreement, nor shall it apply to Xxxxxxx’
disclosure of information to attorneys and/or financial or tax consultants from
whom Xxxxxxx seeks advice.
If the
confidentiality provisions of this Agreement are violated by Xxxxxxx or someone
to whom Xxxxxxx discloses confidential information, then Xxxxxxx will be
responsible for all reasonable enforcement costs, including, but not limited to,
actual and reasonable attorney’s fees.
Xxxxxxx
agrees that she shall not engage in other outside business interests without the
prior approval of the Debut Broadcasting Board of
Directors. Notwithstanding, Xxxxxxx agrees that this obligation of
confidentiality and non-disclosure shall apply in all other business interests
that Xxxxxxx may now be involved in, or may become involved in at a future
time.
Notwithstanding
any other provisions of this Agreement, Xxxxxxx understands that nothing in this
Agreement, including the remedy provisions for any breach by Xxxxxxx, will apply
to any action brought by her to challenge the validity of this Agreement in a
legal proceeding under the Older Workers Benefit Protection Act with respect to
claims under the Age Discrimination in Employment Act.
IV. Effect of Xxxxxxx’ Voluntary
Termination From Employment.
Xxxxxxx
acknowledges and agrees that as the result of any voluntary decision to resign
and the Company’s agreement to accept her decision to resign, employment with
the Company will cease on the effective date of the resignation. Xxxxxxx
understands and agrees that she will not in the future seek, and will not be
eligible for, re-employment by the Company, and Xxxxxxx agrees that she is to be
permanently removed from the Company’s employment force. Notwithstanding the
foregoing, Xxxxxxx agrees that, as requested by the Board of Directors of Debut
Broadcasting, she will fully cooperate with the Company with respect
to any matter in which she was involved during her employment, including, but
not limited to, providing truthful information and testimony, provided that the
Company shall reimburse Xxxxxxx for all of her actual and reasonable expenses
incurred in providing such cooperation to the Company.
V. Limited Non-Solicitation and
Non-Compete Provisions.
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A.
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Limited
Non-Solicitation of Employees. For a period of five (5) years
following the effective date of and resignation or separation from the
company by Xxxxxxx , Xxxxxxx agrees that, except as stated below, she will
not, either on her own behalf or on behalf of any other person or entity,
in any manner, directly or indirectly solicit, hire or encourage any
person who is then an employee of the Company to leave the employment of
the Company;
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B.
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Non-Solicitation
of Customers. For a
period of five (5) years following the effective date of and resignation
or separation from the company by Xxxxxxx, Xxxxxxx agrees that she will
not, either on her own behalf or on behalf of any other person or entity,
directly or indirectly, solicit or contact in any manner any person or
entity who is a Customer of the Company at the time of such solicitation
or contact, with the intent of providing any service or product
competitive with any service or product which is then provided by the
Company. “Customer” refers to any person or entity with whom Xxxxxxx had
actual contact while employed by the Company and any person or
entity about whom Xxxxxxx had knowledge by virtue of her employment with
the Company beyond that available to the general
public.
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C.
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Non-Compete. For a period of five (5) years
following the effective date of and resignation or separation from the
company by Xxxxxxx, Xxxxxxx agrees that she will not, in any manner,
directly or indirectly, compete with the Company or any and all of its
subsidiaries, parents or affiliates by accepting employment from or having
any other relationship with (including, without limitation, through
owning, managing, operating, controlling or consulting) a media business,
or any affiliate thereof, which provides any service or product that, to
Xxxxxxx’ knowledge, is provided or proposed to be provided by the Company,
and which has a business location within fifty (50) miles of any business
location of the Company.
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D.
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Non-Disparagement. Xxxxxxx agrees that she will not
participate in, assist in, or encourage any activity or efforts to damage
the business or personal reputations of the Company or its
employees or their relationships with customers, business partners, or
other individuals or
entities.
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E.
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Acknowledgement. Xxxxxxx acknowledges that as
Chief Financial Officer of Debut Broadcasting Corporation, Inc, that she
has had access to information concerning the business of the Company
(including, but not limited to, business plans, studies, and strategies;
financial data and budgets; personnel information and training materials;
customer lists, files, applications, and anticipated customer
requirements; and computer software and programs of the Company).
Therefore, Xxxxxxx acknowledges and agrees that the restrictions set forth
in Paragraphs A, B, C, and D of this Section are reasonable and necessary
for the protection of the Company business and goodwill. Hopkins further
agrees that if she breaches or threatens to breach any of his obligations
contained in Paragraphs A, B, C, and D of this Section, the Company, in
addition to any other remedies available to it under the law, may obtain
specific performance and/or injunctive relief against Xxxxxxx to prevent
such continued or threatened breach. Xxxxxxx also acknowledges and agrees
that the Company shall be reimbursed by her for all actual and reasonable
attorneys’ fees and costs incurred by it in enforcing any of its rights or
remedies under Paragraphs A, B, C, and D of this
Section.
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VI. Return of Documents,
Materials or Property.
Xxxxxxx
acknowledges and confirms, by her signature, that she has returned to the
Company any and all documents and materials belonging to it, as well as any
other property which belongs to it, and that no such documents or materials or
property have been retained by Xxxxxxx, except as may be authorized by the
Company under the provisions of paragraphs I and IV of this
Agreement.
VII. Applicable
Law.
This
Agreement shall be governed in all respects by the laws of the State of
Tennessee without giving effect to the conflicts of laws principles
thereof.
VIII. Successors; Binding
Agreement.
The
Company’s rights and obligations under this Agreement shall inure to the benefit
of and shall be binding upon the Company’s successors and assigns. Xxxxxxx’
rights and obligations under this Agreement are personal and may not be assigned
to any other person or entity.
IX. Integration.
Except as
stated below, the Company and Xxxxxxx agree that to the extent that any
provision of this Agreement conflicts with any prior agreement between the
Company and Xxxxxxx concerning the subject matter of this Agreement, however
titled, the terms of this Agreement shall prevail. All other provisions
contained in any prior Agreement, specifically including all provisions of the
Directors and Executives Deferred Compensation Plan applicable to Xxxxxxx, will remain enforceable and
will supplement this Agreement. In no event shall this Agreement take precedence
over, override, negate, void, alter, amend, modify, or diminish, in any way, any
agreement between the Company and Xxxxxxx, or any obligation of the Company to
Xxxxxxx, with respect to compensation, stock, or benefits to which Xxxxxxx is
entitled.
X. Severability.
Any term
or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
XI. Drafting.
This
Agreement is a product of negotiations between the parties and in construing the
provisions of this Agreement, no inference or presumption shall be drawn against
either party on the basis of which party or their attorneys drafted this
Agreement.
XII. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
agreement.
XIII. Captions.
The
captions to the various paragraphs of this Agreement are for convenience only
and are not part of this Agreement.
XIV. Knowing and Voluntary
Execution.
Xxxxxxx
acknowledges that she has at least twenty-one (21) calendar days in which to
consider this Agreement to ensure that his execution of this Agreement is
knowing and voluntary. In signing below, Xxxxxxx expressly acknowledges that she
has been afforded at least twenty-one (21) days to consider this Agreement, and
that his execution of same is with full knowledge of the consequences thereof
and is of her own free will. By signing on the date below, if less than
twenty-one (21) days, Xxxxxxx voluntarily elects to forego waiting twenty-one
(21) full days. Xxxxxxx agrees that any change, material or immaterial, to the
terms of this agreement does not restart the running of the twenty-one (21) day
period.
XV. Right of
Revocation.
Xxxxxxx
agrees and recognizes that, for a period of seven (7) calendar days following
his execution of this Agreement, she may revoke and nullify this Agreement by
providing written notice of revocation within this seven (7) day period to Xxxxx
Xxxxx at ______________________________. Xxxxxxx further acknowledges that any
revocation of this Agreement must be exercised, if at all, within seven (7) days
of the date of his signature. This Agreement will not become effective or
enforceable until the expiration of the foregoing seven (7) day
period.
I HAVE
READ THE FOREGOING SETTLEMENT AGREEMENT, HAVE HAD A REASONABLE AND ADEQUATE
OPPORTUNITY TO REVIEW IT, HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY OF MY
CHOICE BEFORE SIGNING IT, AND I FULLY UNDERSTAND THE MEANING AND INTENT OF THIS
AGREEMENT, AND I VOLUNTARILY SIGN THE SAME AS MY OWN FREE ACT.
IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date signed by the last party affixing its/his signature below:
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Debut
Broadcasting Corporation, Inc. - "EMPLOYER"
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By
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Name Xxxxx
Xxxxx
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Title Chairman
of the Compensation Committee
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Xxxxxx
Xxxxxxx -
"XXXXXXX"
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Signed
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Xxxxxx
Xxxxxxx,
Individually
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