THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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EXHIBIT 10.3
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THIRD
AMENDED AND RESTATED
This
Third Amended and Restated Employment Agreement (“Agreement”) is made by and
between ubroadcast, inc., a duly organized Delaware corporation (“Employer”),
and Xxxxx Xxxxxx, a resident of the State of Louisiana
(“Employee”).
W I T N E
S S E T H:
WHEREAS,
Employee has, since executing his Second Amended and Restated Employment
Agreement, served as Executive Vice President of Employer, without being paid
any compensation, having only accrued salary; and
WHEREAS,
Employer desires to reward Employee for his performing above and beyond his
required duties as Executive Vice President of Employer with having been paid
under his Second Amended and Restated Employment Agreement;
WHEREAS,
this Third Amended and Restated Employment Agreement is intended to replace al
prior agreements between Employer and Employee; and
WHEREAS,
Employee is, throughout the term of this Agreement, willing to be employed by
Employer, and Employer is willing to employ Employee, on the terms, covenants
and conditions hereinafter set forth; and
NOW,
THEREFORE, in consideration of such employment and other valuable consideration,
the receipt and adequacy of which is hereby acknowledged, Employer and Employee
hereby agree as follows:
SECTION
I. EMPLOYMENT OF EMPLOYEE
Employer
hereby employs, engages and hires Employee as Executive Vice
President of Employer, and Employee hereby accepts and agrees to such
hiring, engagement and employment, subject to the direct supervision of the
president of Employer and the general supervision of the Board of Directors of
Employer. Employee shall perform duties as are customarily performed by one
holding such position in other, same or similar businesses or enterprises as
that engaged in by Employer, and shall also additionally render such other and
unrelated services and duties as may be reasonably assigned to him from time to
time by Employer. Employee shall devote all necessary efforts to the performance
of his duties as Executive Vice
President of Employer.
SECTION
II. EMPLOYEE’S PERFORMANCE
Employee
hereby agrees that he will, at all times, faithfully, industriously and to the
best of his ability, experience and talents, perform all of the duties that may
be required of and from him pursuant to the express and implicit terms hereof,
to the reasonable satisfaction of Employer.
SECTION
III. COMPENSATION OF EMPLOYEE
Employer
shall pay Employee, and Employee shall accept from Employer, in full payment for
Employee’s services hereunder, compensation as follows:
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A.
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Bonus. Employee
shall be issued, as and for a bonus, 1,760,000 shares of Employer’s $.001
value common stock, which shall be valued at $.025 per share, the closing
price of the common stock, as reported by the OTC Bulletin Board, on
August 28, 2009, or $44,000, in the
aggregate.
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B.
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Prior
Agreement. Under Employer’s prior agreement with Employee, Employer
would owe Employee approximately $325,000 on terms that have been
determined by the board of directors of Employer to be an impediment to
Employer’s securing capital. Employee has advised Employer that he is
amenable to entering into this Agreement, in order to assist Employer in
its attempts to secure capital. In consideration of Employee’s changing
his legal position and entering into this Agreement, Employer shall issue
to Employee 7,000,000 restricted shares of Employer’s common
stock.
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C.
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Salary.
Employee shall be paid as and for a salary the sum of $11,000 per calendar
month, which salary shall be payable on the 1st day of each calendar
month, in advance, subject to deduction of lawful and required
withholding; provided, however, that, for the first month of the initial
term of this Agreement, Employee shall be paid the sum of $50,000 and
that, for the second month of the initial term of this Agreement, Employee
shall be paid the sum of $15,000.
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Employee’s
unpaid salary shall accrue until paid by Employer. Employee shall have the
right, but not the obligation, to be paid all or a portion of his accrued and
unpaid salary in shares of Employer’s common stock, on the following
basis:
on the
15th day of each calendar month, should Employee desire to convert his accrued
and unpaid salary from the immediately preceding month into shares of Employer’s
common stock, Employee shall deliver to Employer a written notice (a “Salary
Conversion Notice”) of his intent to have Employer pay such accrued and unpaid
salary in shares of Employer’s common stock. Each Salary Conversion Notice shall
set forth (1) the amount of accrued and unpaid salary to be converted into
shares of Employer’s common stock and (2) the number of shares of Employer’s
common stock which are to be issued to Employee based on the following
formula:
Amount of
accrued and unpaid salary from the immediately preceding month divided by the
Applicable Share Price (defined below) equals the number of shares to be issued
to Employee. By way of example only, if Employee’s accrued and unpaid salary
totals $5,000 and the Applicable Share Price is $.05, Employer would issue
100,000 shares of its common stock to Employee ($5,000 divided by $.05 equals
100,000 shares).
“Applicable
Share Price” shall mean the average closing sale price of Employer’s common
stock, as reported by the OTC Bulletin Board, for the three trading days
immediately preceding the 15th day of each month.
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D.
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Cellular Phone.
Employer shall provide Employee with a cellular phone for his use in
performing his responsibilities with Employer. In the alternative,
Employer shall pay Employee’s cellular phone
expense.
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E.
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Automobile.
Employer shall provide Employer with an automobile for Employee’s use in
performing his responsibilities with
Employer.
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F.
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Insurance and Other
Benefits. As further consideration for his covenants contained
herein, Employer will add Employee, including Employee's family, with such
health, dental and vision insurance as it offers other employees and other
benefits, including a 401(k) plan, as may be established by Employer from
time to time with respect to its employees in accordance with Employer's
established procedures. Employee shall be entitled to Directors' and
Officers' indemnification insurance coverage to the same extent as is
provided to other persons employed as officers of
Employer.
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G.
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Other Compensation
Plans. Employee shall be entitled to participate, to the same
extent as is provided to other persons employed by Employer, in any future
stock bonus plan, stock option plan or employee stock ownership plan of
Employer.
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H.
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Other Expenses.
Employee agrees that he shall be responsible for all expenses incurred in
his performance hereunder, unless Employer shall have agreed, in advance
and in writing, to reimburse Employee for any such
expenses.
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I.
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Vacations.
During the term of this Agreement, Employee shall be entitled to three (3)
weeks of vacation.
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SECTION
IV. INDEMNIFICATION OF EMPLOYEE
Employer
and Employee specifically agree that the existing Indemnity Agreement, Agreement
Not to Compete and Confidentiality Agreement, each dated September 5, 2004,
shall remain of full force and effect, to survive the expiration of this
Agreement.
SECTION
V. COMPANY POLICIES
Employee
agrees to abide by the policies, rules, regulations or usages applicable to
Employee as established by Employer from time to time and provided to Employee
in writing.
SECTION
VI. TERM AND TERMINATION
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A.
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Term. The
initial term of this Agreement shall be a period of three years,
commencing on April 15, 2009. This Agreement shall renew for an additional
three-year period, provided neither party hereto submits a written notice
of termination within ninety (90) days prior to the termination of the
initial term hereof.
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B.
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Termination.
Employer agrees not to terminate this Agreement except for “just cause”.
For purposes of this Agreement, “just cause” shall mean (1) the willful
failure or refusal of Employee to implement or follow the written policies
or directions of Employer’s Board of Directors, provided that Employee’s
failure or refusal is not based upon Employee’s belief in good faith, as
expressed to Employer in writing, that the implementation thereof would be
unlawful; (2) conduct which is inconsistent with Employee’s position with
Employer and which results in a material adverse effect (financial or
otherwise) or misappropriation of assets of Employer; (3) conduct which
violates the provisions contained in the existing Confidentiality
Agreement or the Non-Competition Agreement between Employer and Employee;
(4) the intentional causing of material damage to Employer’s physical
property; and (5) any act involving personal dishonesty or criminal
conduct against Employer.
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Although
Employer retains the right to terminate Employee for any reason not specified
above, Employer agrees that if it discharges Employee for any reason other than
just cause, as is solely defined above, Employee will be entitled to full
compensation hereunder. If Employee should cease his employment hereunder
voluntarily for any reason, or is terminated for just cause, all future
compensation and benefits payable to Employee shall thereupon, without any
further writing or act, cease, lapse and be terminated. However, all salary and
reimbursements which accrued prior to Employee’s ceasing employment or
termination will become immediately due and payable and shall be payable to
Employee’s estate should his employment cease due to death.
SECTION
VII. COMPLETE AGREEMENT
This
Agreement contains the complete agreement concerning the employment arrangement
between the parties hereto and shall, as of the effective date hereof, supersede
all other agreements between the parties, including all other employment
agreements. The parties hereto stipulate that neither of them has made any
representation with respect to the subject matter of this Agreement or any
representations including the execution and delivery hereof, except such
representations as are specifically set forth herein and each of the parties
hereto acknowledges that he or it has relied on his or its own judgment in
entering into this Agreement. The parties hereto further acknowledge that any
payments or representations that may have heretofore been made by either of them
to the other are of no effect and that neither of them has relied thereon in
connection with his or its dealings with the other.
SECTION
VIII. WAIVER; MODIFICATION
The
waiver by either party of a breach or violation of any provision of this
Agreement shall not operate as, or be construed to be, a waiver of any
subsequent breach hereof. No waiver or modification of this Agreement or of any
covenant, condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding or litigation between the parties hereto arising out of, or
affecting, this Agreement, or the rights or obligations of the parties
hereunder, unless such waiver or modification is in writing, duly executed as
aforesaid, and the parties further agree that the provisions of this Section
VIII may not be waived except as herein set forth.
SECTION
IX. SEVERABILITY
All
agreements and covenants contained herein are severable, and in the event any
one of them, with the exception of those contained in Sections I, III, IV and V
hereof, shall be held to be invalid in any proceeding or litigation between the
parties, this Agreement shall be interpreted as if such invalid agreements or
covenants were not contained herein.
SECTION
X. NOTICES
Any and
all notices will be sufficient if furnished in writing, sent by registered mail
to his last known residence, in case of Employee, or, in case of Employer, to
its principal office address.
SECTION
XI. REPRESENTATIONS OF EMPLOYER
The
execution of this Agreement by Employer has been approved by the Board of
Directors of Employer.
SECTION
XII. REPRESENTATIONS OF EMPLOYEE
Employee
hereby represents to Employer that he is under no legal disability with respect
to his entering into this Agreement.
SECTION
XIII. COUNTERPARTS
This
Agreement may be executed in duplicate counterparts, each of which shall be
deemed an original and, together, shall constitute one and the same agreement,
with one counterpart being delivered to each party hereto.
SECTION
XIV. BENEFIT
The
provisions of this Agreement shall extend to the successors, surviving
corporations and assigns of Employer and to any purchaser of substantially all
of the assets and business of Employer. The term “Employer” shall be deemed to
include Employer, any joint venture, partnership, limited liability company,
corporation or other juridical entity, in which Employer shall have an interest,
financial or otherwise.
SECTION
XV. ARBITRATION
The
parties agree that any dispute arising between them related to this Agreement or
the performance hereof shall be submitted for resolution to the American
Arbitration Association for arbitration in the San Diego, California, office of
the Association under the then-current rules of arbitration. The Arbitrator or
Arbitrators shall have the authority to award to the prevailing party its
reasonable costs and attorneys fees. Any award of the Arbitrators may be entered
as a judgment in any court competent jurisdiction.
Notwithstanding
the provisions contained in the foregoing paragraph, the parties hereto agree
that Employer may, at its election, seek injunctive or other equitable relief
from a court of competent jurisdiction for a violation or violations by Employee
of the existing Confidentiality Agreement or the Non-Competition
Agreement.
SECTION
XVI. LEGAL REPRESENTATION
Employer
and Employee both acknowledge that each has utilized separate legal counsel with
respect to this Agreement. Specifically, Employee acknowledges that the law firm
of Xxxxxx & Xxxxxx has drafted this Agreement on behalf of Employer.
EMPLOYEE IS ADMONISHED TO SEEK HIS OWN LEGAL COUNSEL.
SECTION
XVII. GOVERNING LAW
It is the
intention of the parties hereto that this Agreement and the performance
hereunder and all suits and special proceedings hereunder be construed in
accordance with and under and pursuant to the laws of the State of Delaware, and
that, in any action, special proceeding or other proceeding that may be brought
arising out of, in connection with or by reason of this Agreement, the laws of
the State of Delaware shall be applicable and shall govern to the exclusion of
the law of any other forum, without regard to the jurisdiction in which any such
action or special proceeding may be instituted.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the 28th
day of August, 2009.
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By:
/s/
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XXXX
X. XXXXXXXXXXX
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Xxxx
X. Xxxxxxxxxxx
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President
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/s/
XXXXX XXXXXX
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Xxxxx
Xxxxxx, individually
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Address
of Employee:
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