Exhibit 2.5
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated effective as of January 31,
2002, among Network Lifestyle Radio (Canada) Corp. (the "Company"), a Canadian
corporation, MicroAccel, Inc., a Utah corporation and parent of the Company (the
"Parent"), and Xxxxxxx Xxxxxxx (also known as Xxxxx Xxxxx) (the "Employee"), a
resident of British Columbia.
WHEREAS, the Employee serves as President and CEO of the Company and the
Company provides management services to it Network Lifestyle Radio Corp. ("NLR")
and Xxxx.XX, Inc.;
WHEREAS, the Company wishes to employ the Employee to render services for
the Company on the terms and conditions set forth in this Agreement, and the
Employee wishes to be retained and employed by the Company on such terms and
conditions;
WHEREAS, the Parent, NLR and the shareholders of NLR have entered into
certain share exchange agreement under which Parent will acquire NLR and its
subsidiaries, including the Company (the "Share Exchange");
WHEREAS, under the terms of the Share Exchange, the Parent wishes Employee
and Employee has agreed to serve as President and CEO and a member of the board
of directors of the Parent;
NOW, THEREFORE, in consideration of the premises, the mutual agreements set
forth below and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
1. Employment. The Company hereby employs the Employee, and the Employee
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accepts such employment and agrees to perform services for the Company, for the
period and upon the other terms and conditions set forth in this Agreement.
2. Term. Unless terminated at an earlier date in accordance with Section
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7 of this Agreement, the term of the Employee's employment hereunder shall be
for a period of two (2) years, commencing on the date of this agreement.
Thereafter, the term of this Agreement shall be automatically extended for
successive one-year periods unless either party objects to such extension by
written notice to the other party at least 30 days prior to the expiration of
the initial term or any extension term.
3. Position and Duties.
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(a) Service with Company. During the term of the Employee's
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employment, the Employee agrees to serve as Chief Executive Officer of the
Company, and to perform such reasonable employment duties as the Board of
Directors of the Company shall assign to him from time to time. The Employee
also agrees to serve, for any period for which he is elected as a Director of
the Company and the Parent and as officer and director of corporations
affiliated with the Company.
(b) Performance of Duties. The Employee agrees to serve the Company
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faithfully and to the best of his ability and to devote time, attention and
efforts to the business and affairs of the Company during his employment by the
Company. The Employee hereby confirms that he is under no contractual
commitments inconsistent with his obligations set forth in this Agreement and
that during the term of this Agreement, he will not render or perform services
for any other corporation, firm, entity or person which are inconsistent with
the provisions of this Agreement. While he remains employed by the Company, the
Employee may participate in reasonable business activities, charitable
activities and personal investment activities so long as such activities do not
interfere with the performance of his obligations under this Agreement.
4. Compensation.
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(a) Base Salary. As compensation in full for all services to be
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rendered by the Employee under this Agreement, the Company shall pay to the
Employee an annual base salary of $150,000 USD, less deductions and
withholdings, which salary shall be paid on a monthly basis in arrears in
accordance with the Company's normal payroll procedures and policies. The
compensation payable to the Employee during each year after the first year of
the Employee's employment shall be established by the Company's Board of
Directors following an annual performance review, but in no event shall the
salary for any subsequent year be less than the salary in effect for the prior
year.
(b) Incentive Compensation. In addition to the base salary, the Employee
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shall be eligible to participate in any bonus or incentive compensation plans
that may be established by the Board of Directors of the Company from time to
time applicable to the Employee.
(c) Participation in Benefit Plans. While he is employed by the Company,
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the Employee shall also be eligible to participate in all employee benefit plans
or programs (including vacation time) of the Company to the extent that the
Employee meets the requirements for each individual plan. The Company provides
no assurance as to the adoption or continuance of any particular employee
benefit plan or program, and the Employee's participation in any such plan or
program shall be subject to the provisions, rules and regulations applicable
thereto.
(d) Expenses. The Company will pay or reimburse the Employee for all
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reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the Company's normal
policies for expense verification. The Employee acknowledges and agrees that
the Company will not pay any allowance or expense for automobile use.
5. Confidential Information. Except as permitted or directed by the
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Company's Board of Directors, during the term of his employment or at any time
thereafter, the Employee shall not divulge, furnish or make accessible to anyone
or use in any way (other than in the ordinary course of the business of the
Company) any confidential or secret knowledge or information of the Company that
the Employee has acquired or become acquainted with or will acquire or become
acquainted with prior to the termination of the period of his employment by the
Company (including employment by the Company or any affiliated companies prior
to the date of this Agreement).
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6. Noncompetition Covenant.
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(a) Agreement Not to Compete. During the term of his employment with the
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Company and for a period of one month after the termination of such employment
(whether such termination is with or without cause, or whether such termination
is occasioned by the Employee or the Company), he shall not, directly or
indirectly, engage in competition with the Company in any manner or capacity
(e.g., as an advisor, principal, agent, partner, officer, director, stockholder,
employee, member of any association or otherwise) in any phase of the business
which the Company is conducting during the term of this Agreement or seek to
hire any current or former employee of the Company.
(b) Geographic Extent of Covenant. The obligations of the Employee under
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Section 6(a) shall apply to any geographic area in which the Company (i) has
engaged in business during the term of this Agreement through production,
promotional, sales or marketing activity, or otherwise, or (ii) has otherwise
established its goodwill, business reputation or any customer or supplier
relations.
(c) Limitation of Covenant. Ownership by the Employee, as a passive
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investment, of less than five percent of the outstanding shares of capital stock
of any corporation listed on a national securities exchange or publicly traded
on Nasdaq shall not constitute a breach of this Section 6.
(d) Indirect Competition. The Employee will not, directly or indirectly,
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assist or encourage any other person in carrying out, directly or indirectly,
any activity that would be prohibited by the above provisions of this Section 6
if such activity were carried out by the Employee, either directly or
indirectly. In particular the Employee agrees that he will not, directly or
indirectly, induce any employee of the Company to carry out, directly or
indirectly, any such activity.
(e) Acknowledgment. The Employee agrees that the restrictions and
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agreements contained in this Section 6 are reasonable and necessary to protect
the legitimate interests of the Company and that any violation of this Section 6
will cause substantial and irreparable harm to the Company that would not be
quantifiable and for which no adequate remedy would exist at law and accordingly
injunctive relief shall be available for any violation of this Section 6.
7. Termination of Employment.
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(a) Grounds for Termination. The Employee's employment shall terminate
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prior to the expiration of the initial term set forth in Section 2 or any
extension thereof in the event that at any time:
(i) The Board of Directors of the Company elects to terminate this
Agreement for "cause" and notifies the Employee in writing of such
election,
(ii) The Board of Directors of the Company elects to terminate this
Agreement without "cause" and notifies the Employee in writing of such
election, or
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(iii) The Employee elects to terminate this Agreement and notifies the
Company in writing of such election.
If this Agreement is terminated pursuant to clause (i) or (iii) of this
Section 7(a), such termination shall be effective immediately. If this
Agreement is terminated pursuant to clause (ii) of this Section 7(a), such
termination shall be effective 30 days after delivery of the notice of
termination.
(b) "Cause" Defined. "Cause" means:
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(i) The Employee has breached the provisions of Section 5 or 6 of this
Agreement in any material respect,
(ii) The Employee has engaged in willful and material misconduct,
including willful and material failure to perform the Employee's duties as
an officer or employee of the Company and has failed to cure such default
within 30 days after receipt of written notice of default from the Company,
(iii) The Employee has committed fraud, misappropriation or
embezzlement in connection with the Company's business,
(iv) The Employee has been convicted or has pleaded nolo contendere to
criminal misconduct (except for misdemeanors, parking violations and minor
traffic violations) or a crime of moral turpitude, or
In the event that the Company terminates the Employee's employment for "cause"
pursuant to clause (ii) of this Section 7(b) and the Employee objects in writing
to the Board's determination that there was proper "cause" for such termination
within 20 days after the Employee is notified of such termination, the matter
shall be resolved by arbitration in accordance with the provisions of Section
(f). If the Employee fails to object to any such determination of "cause" in
writing within such 20-day period, he shall be deemed to have waived his right
to object to that determination. If such arbitration determines that there was
not proper "cause" for termination, such termination shall be deemed to be a
termination pursuant to clause (ii) of Section 7(a) and the Employee's sole
remedy shall be to receive the wage continuation benefits contemplated by
Section 7(e).
(c) Effect of Termination Notwithstanding any termination of this
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Agreement, the Employee, in consideration of his employment hereunder to the
date of such termination, shall remain bound by the provisions of this Agreement
which specifically relate to periods, activities or obligations upon or
subsequent to the termination of the Employee's employment.
(d) Surrender of Records and Property. Upon termination of his employment
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with the Company, the Employee shall deliver promptly to the Company all
records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof that relate in
any way to the business, products, practices or techniques of the Company, and
all other property, trade secrets and confidential information of the Company,
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including, but not limited to, all documents that in whole or in part contain
any trade secrets or confidential information of the Company, which in any of
these cases are in his possession or under his control.
(e) Salary Continuation. If the Employee's employment by the Company is
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terminated by the Company pursuant to clause (ii) of Section 7(a), the Company
shall continue to pay to the Employee his base salary (less any payments
received by the Employee from any disability income insurance policy provided to
him by the Company) through the earlier of (a) the date that the Employee has
obtained other full-time employment with a position, duties, responsibility,
compensation and status of Employee's employment under this Agreement, or (b)
remainder of the term of this Agreement. If this Agreement is terminated
pursuant to clauses (i) or (iii) of Section 7(a), the Employee's right to base
salary and benefits shall immediately terminate, except as may otherwise be
required by applicable law.
In either event, if the Employee's employment by the Company terminates
within six months of the end of any fiscal year of the Company, the Employee
shall also be entitled to receive a pro rata portion (based on the number of
days of employment during that fiscal year) of any bonus payment that would have
been payable to him for that fiscal year pursuant to Section 4(b) if the
Employee had been in the employ of the Company for the full fiscal year. No
bonus will be payable to the Employee with respect to any fiscal year in which
the Employee was employed by the Company for less than six months or with
respect to any fiscal year after the fiscal year in which the Employee's
employment terminated.
8. Miscellaneous.
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(a) Entire Agreement. This Agreement (including the exhibits,
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schedules and other documents referred to herein) contains the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes any prior understandings, agreements or representations,
written or oral, relating to the subject matter hereof.
(b) Counterparts. This Agreement may be executed in separate counterparts,
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each of which will be an original and all of which taken together shall
constitute one and the same agreement, and any party hereto may execute this
Agreement by signing any such counterpart.
(c) Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such a manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable under any applicable law or rule, the validity,
legality and enforceability of the other provision of this Agreement will not be
affected or impaired thereby. In furtherance and not in limitation of the
foregoing, should the duration or geographical extent of, or business activities
covered by, any provision of this Agreement be in excess of that which is valid
and enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which may validly and enforceably
be covered. The Employee acknowledges the uncertainty of the law in this respect
and expressly stipulates that this Agreement be given the construction which
renders its provision valid and enforceable to the maximum extent (not exceeding
its express terms) possible under applicable law.
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(d) Successors and Assigns. This Agreement shall be binding upon and inure
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to the benefit of the parties hereto and their respective heirs, personal
representatives and, to the extent permitted by subsection (e), successors and
assigns.
(e) Assignability. Neither this Agreement nor any right, remedy,
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obligation or liability arising hereunder or by reason hereof shall be
assignable (including by operation of law) by either party without the prior
written consent of the other party to this Agreement, except that the Company
may, without the consent of the Employee, assign its rights and obligations
under this Agreement to any corporation, firm or other business entity with or
into which the Company may merge or consolidate, or to which the Company may
sell or transfer all or substantially all of its assets, or of which 50% or more
of the equity investment and of the voting control is owned, directly or
indirectly, by, or is under common ownership with, the Company. After any such
assignment by the Company, the Company shall be discharged from all further
liability hereunder and such assignee shall thereafter be deemed to be the
Company for the purposes of all provisions of this Agreement including this
Section 8.
(f) Modification, Amendment, Waiver or Termination. No provision of this
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Agreement may be modified, amended, waived or terminated except by an instrument
in writing signed by the parties to this Agreement. No course of dealing
between the parties will modify, amend, waive or terminate any provision of this
Agreement or any rights or obligations of any party under or by reason of this
Agreement. No delay on the part of the Company in exercising any right
hereunder shall operate as a waiver of such right. No waiver, express or
implied, by the Company of any right or any breach by the Employee shall
constitute a waiver of any other right or breach by the Employee.
(g) Notices. All notices, consents, requests, instructions, approvals or
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other communications provided for herein shall be in writing and delivered by
personal delivery, overnight courier, mail, electronic facsimile or e-mail
addressed to the receiving party at the address set forth herein. All such
communications shall be effective when received.
To Company: Network Lifestyle Radio (Canada) Corp.
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxxxxxxx, X.X.
X0X 0X0
To Employee: MichaelWoodman
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxxx, XX
X0X 0X0
With a copy to:
Xxxxxx, Xxxxxxxxxx
0000-0000 Xxxx Xxxxxxxx
Xxxxxxxxx, XX
X0X 0X0
Attention: Xx. Xxxxxxx X. Xxxxxx, Esq.
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Any party may change the address set forth above by notice to each other party
given as provided herein.
(h) Headings. The headings and any table of contents contained in this
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Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
(i) Governing Law: This Agreement shall be governed by and construed in
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accordance with the laws of the Province of British Columbia and the laws of
Canada applicable therein and the courts of British Columbia shall have
jurisdiction over every dispute hereunder. Each of the parties hereto
irrevocable attorns to the jurisdiction of the courts of British Columbia.
(j) Third-Party Benefit. Nothing in this Agreement, express or implied, is
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intended to confer upon any other person any rights, remedies, obligations or
liabilities of any nature whatsoever.
(k) Withholding Taxes. The Company may withhold from any benefits payable
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under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth in the first paragraph.
NETWORK LIFESTYLE RADIO (CANADA) CORP.
PER:
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Print Name and Title
EMPLOYEE
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Xxxxxxx Xxxxxxx (also known as Xxxxx Xxxxx)
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