EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
effective as of June 3, 2005 ("Effective Date"), between Radium Ventures, Inc, a
Nevada corporation, (the "Company"), and Xxxxxxx Xxxxx, an individual (the
"Executive").
RECITALS:
A. The Company, through its wholly-owned subsidiary, is in the Internet
Protocol Television subscription based business that will sell an Internet
appliance allowing subscribers to view content using proprietary hardware
and software that connects a television set to the Internet (the
"Business").
B. Executive has experience in the Business and the Company wishes to employ
Executive pursuant to the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Company and the Executive hereby agree as follows:
1. Employment. The Company hereby agrees to employ Executive as Chief
Executive Officer of the Company, and Executive hereby accepts such employment,
upon the terms and conditions hereinafter set forth. During the "Term"
(including any renewals thereof) as defined herein, Executive's duties and
responsibilities shall be limited to supervisory duties generally performed by
Chief Executive Officers of publicly traded companies. Executive shall report to
the Board of Directors. In no event shall Executive be required to travel or
perform services outside of Los Angeles or Orange County more than fourteen
nights in any calendar month. Employer will provide appropriate staff and office
space within Los Angeles County or Orange County. Executive shall devote
substantially all of his time and effort to his duties to the Company, provided,
however, that Executive shall not be prevented from serving as a director in
other companies or investing his personal assets or personal time in investments
in business entities which are not a Competitive Business, as hereinafter
defined.
2. Compensation/Benefits.
a. Salary. Company shall pay Executive a base salary of Two Hundred
and Forty Thousand Dollars ($240,000) per year during the Term. Said salary
shall be paid in twenty-four (24) equal payments of Ten Thousand Dollars
($10,000) and each payment shall be paid on the 1st and the 15th day of each
calendar month (the "Base Salary").
b. Equity Compensation. Company shall pay Executive a signing bonus
of Five Hundred Eighty One Thousand Seven Hundred and Sixty Seven (581,767)
shares of the Company's common stock as consideration for the Executive agreeing
to become an officer of the Company (hereafter, the "Shares"). The Shares are
valued at Ten Cents ($.10) per share based on a recent sale of the Company's
common stock between a shareholder and an unrelated third party. As such, upon
issuance of the Shares, the Executive shall be deemed to have received
compensation of Fifty Eight Thousand One Hundred and Seventy Six Dollars
($58,176) and shall pay the Company Sixteen Thousand Seven Hundred and Fourteen
Dollars ($16,714) for the relevant withholding taxes the Company is required to
withhold.
c. Piggyback Registrations. The Company shall notify Executive in
writing at least thirty (30) days prior to the filing of any registration
statement under the Securities Act for purposes of a public offering of
securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company,
offerings of securities of the Company initiated by any party exercising its
demand registration rights and registration statements relating to employee
benefit plans) and will afford Executive an opportunity to include in such
registration statement all or part of any securities of the Company held by
Executive (the "Securities"). If Executive desires to include in any such
registration statement all or any part of his Securities, Executive shall,
within fifteen (15) days after receipt of the above-described notice from the
Company, so notify the Company in writing. If Executive decides not to include
all of his Securities in any registration statement thereafter filed by the
Company, the Executive shall nevertheless continue to have the right to include
any Securities in any subsequent registration statement or registration
statements as may be filed by the Company with respect to offerings of its
securities, all upon the terms and conditions set forth herein.
d. Performance Bonus. If the Company has a positive EBITDA for any
calendar year during the Term, Executive shall receive an annual bonus ("Bonus")
as determined by the Company's Board of Directors in its sole discretion.
e. Employee Benefits. The Executive shall be entitled to participate
in all benefit programs of the Company currently existing or hereafter made
available by the Board of Directors to executives and/or other executive
employees, including, but not limited to, pension and other retirement plans,
including any 401K Plan, group life insurance, dental, hospitalization, surgical
and major medical coverage, sick leave, salary continuation, vacation and
holidays, long-term disability and other benefits.
f. Vacation. During each calendar year of the Company, the Executive
shall be entitled to Eight (8) weeks of paid vacation time.
g. Business Expense Reimbursement. The Executive shall be entitled
to receive reimbursement for reasonable, out-of-pocket expenses incurred in
accordance with Company policies established by the Board of Directors and
Executive shall provide appropriate written documentation evidencing such
expenses so as to enable the Company to deduct them for federal income tax
purposes.
3. Term. The Term of employment hereunder will commence as of the
Effective Date and end three (3) years from the Effective Date ("Term"), unless
terminated pursuant to Section 4 of this Agreement. The Term shall automatically
renew ("Renewal Term") for successive one (1) year terms, unless written
notification is provided by either party no less than 60 days prior to the
expiration of the Term.
4. Death, Disability and Termination.
a. Death. In the event of the death of the Executive during the Term
or the Renewal Term of the Agreement, salary shall be paid to the Executive's
designated beneficiary, or, in the absence of such designation, to the estate or
other legal representative of the Executive only for the period ending at the
date of death. The Company shall also pay to the Executive's estate or heirs, as
the case may be, any accrued and unpaid Bonus.
b. Disability.
(i) In the event of the Executive's disability, as hereinafter
defined, the Executive shall only be entitled to compensation in accordance with
the Company's disability compensation practice for senior executives, including
any separate arrangement or policy covering the Executive, but in all events the
Executive shall continue to receive the Executive's salary for a period ending
at the date of termination for Disability as determined below. Any amounts
provided for in this Section 4(b) shall be offset by other long-term disability
benefits provided to the Executive by the Company.
(ii)"Disability" for the purposes of this Agreement, shall be
deemed to have occurred in the event (a) the Executive is unable by reason of
sickness or accident to perform the Executive's duties under this Agreement for
a cumulative total of twelve (12) weeks within any one calendar year or (b) the
Executive is unable to perform Executive's duties for ninety (90) consecutive
days or (c) the Executive has a guardian of the person or estate appointed by a
court of competent jurisdiction. Termination due to disability shall be deemed
to have occurred upon the first day of the month following the determination of
Disability as defined in the preceding sentence.
Anything herein to the contrary notwithstanding; if, following
a termination of employment hereunder due to Disability as provided in the
preceding paragraph, the Executive becomes reemployed, whether as an Executive
or a consultant, any salary, annual incentive payments or other benefits earned
by the Executive from such employment shall offset any salary continuation due
to the Executive hereunder commencing with the date of reemployment.
c. Termination by the Company for Cause.
(i) Nothing herein shall prevent the Company from terminating
the Executive's employment for "Cause" as hereinafter defined. The Executive
shall continue to receive salary only for the period ending with the date of
such termination as provided in this Section 4(c). Any rights and benefits the
Executive may have in respect of any other compensation shall be determined in
accordance with the terms of such other compensation arrangements or such plans
or programs.
(ii)"Cause" shall mean (a) committing or participating in an
injurious act of fraud, gross neglect, misrepresentation, embezzlement or
dishonesty against the Company; (b) committing or participating in any other
injurious act or omission wantonly, willfully, recklessly or in a manner which
was grossly negligent against the Company (monetarily or otherwise); (c)
engaging in a criminal enterprise involving moral turpitude; (d) conviction of
an act or acts constituting a felony under the laws of the United States or any
state thereof, (e) Executive's failure to substantially perform his material
duties hereunder or to substantially comply with any other material provision of
this Agreement, (f) a willful act by Executive as a result of which he knowingly
receives an improper material personal benefit at the expense of the Company,
(g) any other willful misconduct by Employee that is materially injurious to the
business or business reputation of Employer, or (h) any other circumstance which
constitutes "cause" under applicable law.
(iii) Notwithstanding anything else contained in this
Agreement, this Agreement will not be deemed to have been terminated for Cause
unless and until there shall have been delivered to the Executive a notice of
termination stating that the Executive committed one of the types of conduct set
forth in this Section 4(c) contained in this Agreement and specifying the
particulars thereof and the Executive shall be given a ten (10) day period to
cure such conduct set forth in Section 4(c).
d. Termination by the Company Other than for Cause.
(i) The foregoing notwithstanding, the Company may terminate
the Executive's employment for whatever reason it deems appropriate; provided,
however, that in the event such termination is not based on Cause, as provided
in Section 4(c) above, the Company shall continue to be obligated to pay to
Executive his base salary through the earlier of (A) twelve (12) months or (B)
the remaining term of this Agreement. In such event, Executive shall have a duty
to mitigate such payments.
(ii)In the event that the Executive's employment with the
Company is terminated pursuant to this Section 4(d), then Section 5 of this
Agreement and all references thereto shall be inapplicable as to the Executive
and the Company. e. Voluntary Termination. In the event the Executive terminates
the Executive's employment on the Executive's own volition prior to the
expiration of the Term or Renewal Term of this Agreement, including any renewals
thereof, such termination shall constitute a voluntary termination and in such
event the Executive shall receive base salary only for the period ending with
the date of such termination. Any rights and benefits the Executive may have in
respect of any other compensation shall be determined in accordance with the
terms of such other compensation arrangements or such plans or programs.
5. Covenant Not to Compete. Executive acknowledges and recognizes the
highly competitive nature of Company's business and the goodwill and business
strategy of the Company and continued patronage constitute a substantial asset
of the Company. Executive further acknowledges and recognizes that during the
course of the Executive's employment Executive will receive specific knowledge
of Company's business, access to trade secrets and Confidential Information, as
defined in Section 6, participate in business acquisitions and corporate
decisions, and that it would be impossible for Executive to work for a
Competitive Business without using and divulging this valuable confidential
information. Executive acknowledges that Company is without an adequate remedy
at law in the event this covenant is violated. Executive further acknowledges
that this covenant not to compete is an independent covenant within this
Agreement. The Executive recognizes that the terms of this covenant are
reasonable and necessary for the protection of the Company's business because
the value of Executive's services will be enhanced by his association with the
Company. Accordingly, Executive agrees to the following:
a. That during the term of this Agreement (including any renewals or
extensions thereof) and for so long thereafter, if any, that Executive receives
any payments from the Company under or related to this Agreement (the
"Restricted Period"), Executive will not individually or in conjunction with
others, directly or indirectly engage in any Competitive Business, other than on
behalf of the Company and as agreed by the Company and Executive, whether as an
officer, director, proprietor, employer, employee, partner independent
contractor, investor (other than as a holder of less than one percent (1%) of
the outstanding capital stock of a publicly traded corporation), consultant,
advisor, agent or otherwise. For purposes of this Agreement, a "Competitive
Business" is a business which designs, manufactures, sells, distributes or
licenses, directly or indirectly, an internet appliance that enables an end user
to connect an internet connection to a television so as to enable the television
to display streamed media delivered over the internet.
b. That during the Restricted Period, Executive will not, indirectly
or directly, compete with the Company by soliciting, inducing or influencing any
of the Company's customers or employees at any time during the Restricted Period
to discontinue or reduce the extent of such relationship with the Company.
c. That during the Restricted Period, Executive will not (i)
directly or indirectly recruit or solicit any employee or agent of the Company
to discontinue such employment or agency relationship with the Company, or (ii)
employ or seek to employ, or cause to permit any Competitive Business to employ
or seek to employ for any Competitive Business any person who is then (or was at
any time within three (3) months prior to the date Executive or the Competitive
Business employs or seeks to employ such person) employed by the Company.
d. That during the Restricted Period, Executive will not interfere
with, disrupt or attempt to disrupt any past, present or prospective
relationship contractual or otherwise, between the Company and any of the
Company's employees or agents.
e. The provision of this Section 5 will not be in effect for any
corporation or partnership the Company is a direct or indirect shareholder or
interest holder, and/or has entered into any kind of joint venture relationship
or partnership with the Company.
6. Non-Disclosure of Confidential Information.
a. Executive acknowledges that the Company's trade secrets, private
or secret processes, methods and ideas as they exist from time to time,
information concerning the Company's products, business records and plans,
inventions, acquisition strategy, price structure and pricing, discounts, costs,
computer programs and listings, source code and/or subject code, copyright
trademark proprietary information, formulae, protocols, forms, procedures,
training methods, development technical information, know-how, show-how, new
product and service development, advertising budgets, past, present and future
marketing, activities and procedures, method for operating the Company's
Business, credit and financial data concerning the Company's Clients and
customer lists, which customer lists shall not only mean one or more of the
names and address of the customers of the Company, but it shall also encompass
any and all information whatsoever regarding them, including their needs, and
marketing; advertising, promotional and sales strategies, sales presentations,
research information, revenues, acquisitions, practices and plans and
information which is embodied in written or otherwise recorded form, and other
information of a confidential nature not known publicly or by other companies
selling to the same markets and specifically including information which is
mental, not physical (collectively, the "Confidential Information"), are
valuable, special and unique assets of the Company, access to and knowledge of
which have been provided to Executive by virtue of Executive's association with
the Company. In light of the highly competitive nature of the industry in which
the Company's business is conducted, Executive agrees that all Confidential
Information, heretofore or in the future obtained by Executive as a result of
Executive's association with the Company shall be considered confidential.
b. The Executive agrees that the Executive shall (i) hold in
confidence and not disclose or make available to any third party any such
Confidential Information obtained directly or constructively from the Company,
unless so authorized in writing by the Company; (ii) exercise all reasonable
efforts to prevent third parties from gaining access to the Confidential
Information; (iii) not use, directly or indirectly, the Confidential Information
except in order to perform the Executive's duties and responsibilities to the
Company; (iv) restrict the disclosure or availability of the Confidential
Information to those who have agreed to maintain the confidentiality of the
Confidential Information and who have a need to know the information in order to
achieve the purposes of this Agreement; (v) not copy or modify any Confidential
Information without prior written consent of the Company, provided, however,
that such copy or modification of any Confidential Information does not include
any modifications or copying which would otherwise prevent the Executive from
performing his/her duties and responsibilities to the Company; (vi) take such
other protective measures as may be reasonably necessary to preserve the
confidentiality of the Confidential Information; (vii) relinquish all rights it
may have in any matter, such as drawings, documents, models, samples,
photographs, patterns, templates, molds, tools or prototypes, which may contain,
embody or make use of the Confidential Information; and (viii) promptly deliver
to the Company any such matter as the Company may direct at any time, and not
retain any copies or other reproductions thereof.
c. Executive further agrees (i) that Executive shall promptly
disclose in writing to the Company all ideas, inventions, improvements and
discoveries which may be conceived, made or acquired by Executive as the direct
or indirect result of the disclosure by the Company of the Confidential
Information to Executive; (ii) that all such ideas, inventions, improvements and
discoveries conceived, made or acquired by Executive, alone or with the
assistance of others, relating to the Confidential Information in accordance
with the provisions hereof shall belong to the Company, and that Executive shall
not acquire any intellectual property rights under this Agreement except the
limited right to use set forth in this Agreement; and (iii) that Executive shall
assist in the preparation and execution of all applications, assignments and
other documents which the Company may deem necessary to obtain patents,
copyrights and the like in the United States and in jurisdictions foreign
thereto, and to otherwise protect the Company.
d. Excluded from the Confidential Information, and therefore not
subject to the provisions of this Agreement, shall be any information which the
Executive can show (i) at the time of disclosure, is in the public domain as
evidenced by printed publications; (ii) after the disclosure, enters the public
domain by way of printed publication through no fault of the Executive; (iii) by
written documentation was in its possession at the time of disclosure and which
was not acquired directly or indirectly from the Company; or (iv) by written
documentation was acquired, after disclosure, from a third party who did not
receive it from the Company, and who had the right to disclose the information
without any obligation to hold such information confidential. The foregoing
exceptions shall apply only from and after the date that the information becomes
generally available to the public or is disclosed to the Executive by a third
party, respectively. Specific information shall not be deemed to be within the
foregoing exceptions merely because it is embraced by more general information
in the public domain. Additionally, any combination of features shall not be
deemed to be within the foregoing exceptions merely because individual features
are in the public domain. If the Executive intends to avail himself/herself of
any of the foregoing exceptions, the Executive shall notify the Company in
writing of his/her intention to do so and the basis for claiming the exception.
e. Upon written request of the Company, Executive shall return to
the Company all written materials containing the Confidential Information.
Executive shall also deliver to the Company written statements signed by
Executive certifying all materials have been returned within five (5) days of
receipt of the request.
7. Remedies.
a. The Executive acknowledges and agrees that the Company's remedy
at law for a breach or threatened breach of any of the provisions of Section 5
and Section 6 herein would be inadequate and the breach shall be per se deemed
as causing irreparable harm to the Company. In recognition of this fact, in the
event of a breach by the Executive of any of the provisions of Section 5 or
Section 6, the Executive agrees that, in addition to any remedy at law available
to the Company including, but not limited to, monetary damages, the Company,
without posting any bond, shall be entitled to obtain, and the Executive agrees
not to oppose the Company's request for equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available to the Company.
b. The Executive acknowledges that the granting of a temporary
injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Confidential Information would not be an adequate remedy
upon breach or threatened breach of Section 5 or Section 6 and consequently
agrees, upon proof of any such breach, to the granting of injunctive relief
prohibiting any form of involvement with any Competitive Business. Nothing
herein contained shall be construed as prohibiting the Company from pursuing any
other remedies available to it for such breach or threatened breach.
c. In the event that the Executive shall be in violation of the
aforementioned restrictive covenants as set forth in Section 5 or Section 6,
then the time limitation during which breach or breaches should occur, and in
the event the Company should be required to seek relief from such breach in any
court or other tribunal, then the covenant shall be extended for a period of
time equal to the pendency of such proceedings, including appeal.
8. Amendments. This Agreement shall not be modified or amended except by
written agreement duly executed by the parties hereto.
9. Headings. All sections and descriptive headings of this Agreement are
inserted for convenience only, and shall not affect the construction or
interpretation hereof.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall be an original,
but all counterparts shall together constitute one and the same instrument.
11. Entire Agreement. This Agreement hereto constitutes the entire
understanding between the parties. Nothing in this Agreement will prevent or
restrict Executive from serving on the Board of Directors of public or private
companies and receive compensation from such service.
12. Governing Law. This Agreement is to be construed and enforced
according to the laws of the State of California. This Agreement shall not be
construed more strictly against one party than the other, merely by virtue of
the fact that it may have been prepared by counsel for one of the parties, it
being recognized that both Company and Executive have contributed substantially
and materially to the negotiation and preparation of this Agreement.
13. Venue. Venue in any action arising from this Agreement shall be in
Orange County, California.
14. Attorneys' Fees. In connection with any controversy arising out of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees and costs at pretrial, trial, and appellate levels from the non-prevailing
party.
15. Severability. Inapplicability or unenforceability of any provision of
this Agreement shall not limit or impair the operation or validity of any other
provision of this Agreement or any such other instrument.
16. Non-Assignability. This Agreement is personal in nature and not
assignable by any party hereto.
17. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties, its' successors, transferees and assigns.
18. Construction. In construing this Agreement, the singular shall include
the plural and the plural shall include the singular, and the use of any gender
shall include every other and all genders.
19. Relationship and Covenants of Executive. Executive acknowledges that
the relationship between the parties hereto is exclusively that of Company and
employee. The Company shall be the sole owner of all the fruits and proceeds of
Executive's services hereunder, including, but not limited to, all ideas,
concepts, formats, software designs, suggestions, developments, arrangements,
articles, stories, writings, compilations, campaigns, packages, programs,
promotions and other intellectual properties which Executive may create in
connection with Executive's activities as an employee of the Company during the
Term ("Executive's Work Product"), free and clear of any and all claims by
Executive (or anyone claiming under or through Executive). Executive is
rendering his services hereunder as an employee-for-hire by the Company and that
all such writings and materials developed by Executive in connection with the
Company's business are work-made-for-hire under the copyright law of the United
States.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written in Orange County, California.
THE COMPANY
By:
---------------------------------
Name:
Its:
EXECUTIVE
Xxxxxxx Xxxxx
