Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of this 1st day of January 2006
(the "Commencement Date"), by and between Xxxxx X. Xxxxx III, ("Miles") and
Urban Television Network Corporation, a Nevada corporation ("Urban Television").
WHEREAS, Miles is currently employed by Urban Television as its President and
Chief Executive Officer; and
WHEREAS, Urban Television now wishes to enter into an employment with Miles as
its President and Chief Executive Officer, and Miles desires to accept Urban
Television's employment in that capacity;
NOW, THEREFORE, in consideration of the mutual agreements set forth below, the
parties agree as follows:
1.Employment Duties. Urban Television hereby employs Miles and Miles hereby
accepts employment on the terms and conditions set forth by this Agreement.
Miles shall serve as President and Chief Executive Officer. In that capacity,
subject to the direction and control of the Urban Television's Board of
Directors (the "Board"), Miles shall exercise general supervision and control
over Urban Television's property, business and affairs. Miles shall devote his
full-time efforts to Urban Television and shall not undertake self-employment,
nor shall he perform any services or undertake employment for any other employer
except, his relationships with Celebrity Ventures Inc., Grapevine Star
Entertainment Inc. and Miles Investment Group LLC as may be approved in advance
by the Board. Miles further agrees to participate in no activities during his
employment that may conflict with the best interest of Urban Television.
2. Compensation.
a. Base Compensation. Urban Television agrees to pay Miles a base salary of
Two Hundred Thousand Dollars ($225,000) per annum, less all lawful and
applicable withholdings and deductions, payable semi-monthly or on a basis
conforming to the established payroll practices of Urban Television. Base
compensation shall increase a minimum of 5% per year.
b. Incentive Compensation in Addition to Base Salary. In addition to the
basic compensation set forth above, Miles shall be entitled to receive such
performance-based incentive compensation that will be determined by the Board of
Directors. In addition employee shall participate in any non-qualified stock
option plan or other plan or grant plan offered or provided to any other
executive employee at an equal or greater participation level during the term of
this agreement.
3. Term. This Agreement shall continue through December 31, 2009, subject to
earlier termination in accordance with its provisions. Upon its expiration,
unless earlier terminated in accordance with its provisions, this Agreement,
shall be renewed automatically upon the same terms and conditions for successive
periods of one year, commencing January 1, unless otherwise negotiated and
agreed upon by the parties. The successive one year renewals shall also be
subject to the earlier termination provisions of this Agreement.
4. Retirement Plans. Subject to the satisfaction of eligibility requirements,
Miles shall participate in Urban Television's qualified pension, profit-sharing
or other deferred compensation plan or combination thereof, as they may be
adopted and offered by Urban Television in the future.
5. Time Off. Miles shall receive time off for holidays in accordance with Urban
Television's policies. Subject to Urban Television's policies regarding limits
on accrual and payout, Miles shall be entitled to sixteen (16) days of paid time
off per year, accruable at the rate of 5.33 hours per semi-monthly pay period.
6. Reimbursable Expenses. Miles shall be entitled to reimbursement for all
reasonable and necessary expenses including cell phone charges incurred by Miles
and approved by Urban Television in connection with Urban Television's business,
including (i) entertainment and promotional expenses; and (ii) other direct
expenses approved by Urban Television. All such reimbursements shall be paid
monthly, provided Miles has furnished to Urban Television such supporting
documentation as Urban Television may reasonably require. Employee shall be
entitled to a car allowance of $500.00 per month plus all taxes and insurance.
7. Insurance. Miles shall receive similar medical, dental, group disability and
life insurance coverage provided to all other employees of Urban Television and
upon the same terms and conditions, when such is provided by Urban Television.
8. Termination Notwithstanding the Term of this Agreement or any renewals, this
Agreement may be terminated by either party as set forth below:
a. Termination Without Cause. Urban Television may terminate Miles's
employment hereunder without Cause upon written notice to Miles. In the event of
termination of Miles by Urban Television without Cause, and contingent upon
Miles's execution of a release of all claims against Urban Television and its
officers, directors, employees and agents, Urban Television shall pay Miles as a
separation payment a sum equal to eighteen (18) months of his base compensation
as of the date of his termination, less all appropriate deductions (the
"Separation Benefit"). Such sum shall be payable in eighteen (18) equal monthly
installments. All options and grants will immediately vest. Miles's will also be
entitled to his pro-rata share of any incentive compensation earned.
b. Termination for Cause. Urban Television may terminate Miles's employment
hereunder for "Cause" as that term is defined below:
(i) Miles's failure to perform substantially his responsibilities under
this Agreement, after demand for substantial performance has been given by Urban
Television that specifically identifies how Miles has not substantially
performed his responsibilities,
(ii) Miles's conviction of any felony or of a misdemeanor involving fraud,
dishonesty or moral turpitude or the entry against him of any civil judgment
arising from allegations of fraud, dishonesty or moral turpitude, or any
violation of law which has a material adverse effect on Urban Television,
(iii) Miles's breach of this Agreement that results in financial or
reputational detriment to Urban Television,
(iv) Miles's misconduct in the performance of his duties under the
Agreement that results in financial or reputational detriment to Urban
Television, (v) Miles's breach of Urban Television's Code of Ethics or Xxxxxxx
Xxxxxxx Policy, as now in effect or as modified in the future,
(vi) Miles's theft or embezzlement from Urban Television, or
(vi) Miles's attempt to obstruct or failure to cooperate with any
investigation authorized by Urban Television or any governmental or
self-regulatory entity.
In the event of termination "for Cause," all obligations of Urban Television to
pay compensation under this Agreement will immediately cease and Miles shall be
entitled to no further compensation of any kind with the exception of base
compensation accrued to the date of termination.
c. Resignation without Good Reason. Should Miles wish to terminate his
employment with Urban Television without Good Reason (as defined below) during
the term of this Agreement, Miles shall give sixty (60) days prior written
notice to Urban Television specifying the date on which such resignation is to
become effective. In the event of a resignation without Good Reason, Urban
Television shall have no further obligations to pay compensation to Miles under
this Agreement other than to pay Miles his base compensation through the date of
resignation. At Urban Television's sole option, it may elect to end Miles's
service at a date earlier than specified in Miles's written notice and pay his
compensation through the end of a sixty (60) day notice period. d. Resignation
with Good Reason. Miles may terminate his employment hereunder for "Good Reason"
as that term is defined below:
(i) The material diminution of Miles's position, duties, responsibilities
or status with Urban Television,
(ii) Urban Television's assignment of Miles on a substantially full-time
basis to work at a location where the distance between the new location and
Miles's principal residence is at least 60 miles greater than the distance
between the former location and such residence,
(iii) Any reduction in Miles's base salary, or a material reduction in
benefits payable to Miles or the failure of Urban Television to pay Miles any
earned salary, bonus or benefits except during the period when Urban Television
does not have the financial resources after paying its other normal operating
expenses or with Miles's prior written consent,
(iv) Urban Television's failure to obtain an assumption of the obligations
incumbent upon Urban Television under this Agreement by any successor to Urban
Television,
(v) The exclusion or limitation of Miles from participating in some form of
variable compensation plan which provides Miles the opportunity to achieve a
level of total compensation consistent with Miles's potential compensation under
this Agreement, or
(vi) Any demand by any director of the Company that Miles take any action
or refrain from taking any action where such action or inaction, as the case may
be, would violate any law, rule, regulation or other governmental pronouncement,
court order, decree or judgment, or breach any agreement or fiduciary duty.
In the event of a resignation by Miles for Good Reason, and contingent upon
Miles's execution of a release of all claims against Urban Television and its
officers, directors, employees and agents, Urban Television shall pay Miles a
sum equal to eighteen (18) months of his base compensation as of the date of his
resignation, less all appropriate deductions (the "Separation Benefit"). Such
sum shall be payable in eighteen (18) equal monthly installments, beginning when
Urban Television has the financial resources after paying its other normal
operating expenses. All options and grants will immediately vest. Miles's will
also be entitled to his pro-rata share of any incentive compensation earned.
e. Death. This Agreement, Miles's employment hereunder, and Urban
Television's obligations hereunder shall terminate forthwith upon the death of
Miles and Urban Television shall have no further obligation to pay compensation
to Miles or Miles's estate, successors or beneficiaries under this Agreement
other than to pay Miles's base salary through the date of death.
f. Disability. If Miles shall fail or be unable to perform this services
required under this Agreement, with or without reasonable accommodation, because
of any physical or mental disability, and such failure or inability shall
continue for three consecutive months or for a total of ninety (90) days during
any consecutive twelve (12) month period, Urban Television shall have the right
to terminate this Agreement thirty days after delivering written notice of such
termination to Miles; provided, however, that Miles shall continue to receive
his base compensation to the date of termination.
9. Trade Secrets and Confidential Information. a. Miles agrees that both
during and after the Term of the Agreement he will keep confidential and not
disclose or use confidential information relating to Urban Television's
customers, personnel, designs, pricing, sourcing, manufacturing and distribution
policies, methods of doing business, sales volume information, business
prospects or plans, or any other proprietary information which is not otherwise
available to the general public, including, but not limited to, information
covered under the Uniform Trade Secrets Act, RCW 19.108 et. seq., except in
furtherance of the interests of Urban Television.
b. Miles shall neither use nor allow any other person to use any of the
Secrets in any way, except for the benefit of Urban Television. All material
containing or disclosing any portion of the Secrets shall be and remain the
property of Urban Television, and shall be returned to Urban Television upon the
termination of Miles's employment or at the earlier request of the Board of
Directors. At such time, Miles shall also assemble all materials in his
possession or control that contain any of the Secrets, and promptly deliver such
items to Urban Television.
10. Intellectual Properties. a. All ownership, copyright, patent, trade
secrecy and other rights in all works, designs, inventions, ideas, manuals,
improvements, discoveries, processes, customer lists or other properties (the
"Intellectual Properties") made or conceived by Miles during the Term and in
connection with Miles's employment with Urban Television shall be the right and
property solely of Urban Television, whether developed independently by Miles or
jointly with others, and whether or not developed or conceived during regular
working hours or at Urban Television's facilities, and whether or not Urban
Television uses, registers, or markets the same.
b. In accordance with Urban Television's policy and Texas law, this section
does not apply to, and Miles has no obligation to assign to Urban Television,
any invention for which no Urban Television trade secrets and no equipment,
supplies or facilities of Urban Television were used and which was developed
entirely on Miles's own time, unless (i) the invention relates directly to the
business of Urban Television; (ii) the invention relates to actual or
demonstrably anticipated research or development work of Urban Television; or
(iii) the invention results from any work performed by Miles for Urban
Television. c. Miles will assist Urban Television as reasonably requested during
and after the term of his employment to further evidence and perfect, and to
enforce, Urban Television's rights in and ownership of the Intellectual
Properties covered hereby, including without limitation, the execution of
additional instruments of conveyance and assisting Urban Television with
applications for patents or copyright or other registrations.
11. Authority and Non-Infringement. Miles warrants that to the best of his
knowledge any and all items, technology and Intellectual Properties of any
nature developed or provided by him under this Agreement and in any way for or
related to Urban Television will be original to Miles and will not, as provided
to Urban Television or when used and exploited by Urban Television and its
contractors and customers and its and their successors and assigns, infringe in
any respect on the rights or property of any third party. Miles will not,
without prior authorization by the Board, use any equipment, supplies,
facilities or proprietary information of any other party. Miles warrants that he
is fully authorized to enter into employment with Urban Television and to
perform under this Agreement, without conflicting with any other commitments,
understandings, agreements or duties, whether to prior employers or otherwise.
Miles agrees to indemnify Urban Television for all losses, claims and expenses
(including reasonable attorneys' fees) arising from claims brought against Urban
Television as a result of any breach by Miles of this section.
12. Noncompetition, Nonsolicitation and Non-Hire.
a. Subject to the provisions of Section 12.d., below, Miles agrees that,
both during the term and for a period of twelve (12) months following the
termination of Miles's employment with Urban Television, Miles will not in any
capacity, directly or indirectly, engage or invest in, own, manage, operate,
finance, control or participate in the ownership, management, operation,
financing or control of, be employed by, associated with, or in any manner
connected with, lend his name or any similar name to, lend his credit to, render
services or advice to, or assist others to engage in or own a material interest
in any business or activity that is, or is preparing to be, in competition with
Urban Television, its subsidiaries or licensees with respect to any product or
any service sold or provided by Urban Television directly or through a
subsidiary or a licensee of the Urban Television brand in any geographical area
in which such product or service is sold or is actively engaged in.
Notwithstanding any other provision of this section, however, Miles shall be
permitted to maintain an equity ownership interest in a competing business if
that business is subject to reporting obligations under the Securities Exchange
Act of 1934 and Miles's ownership interest does not exceed two percent (2%) of
that entity's outstanding equity securities.
b. Subject to the provisions of Section 12.d., below, Miles further agrees
that both during the Term of this Agreement and for a period of twelve (12)
months following the termination of Miles's employment with Urban Television,
Miles will not: (i) directly or indirectly solicit or accept business from any
actual or identified potential customer of Urban Television or its subsidiaries
which might reasonably be foreseen to decrease such customer's likelihood to
transact future business with Urban Television in a volume consistent with its
historical practices or reasonably anticipated future volume; or (ii) attempt to
entice away from Urban Television or its subsidiaries any actual or identified
potential customer of Urban Television or its subsidiaries, nor will Miles
assist others in doing so. Miles further agrees that during the Term of this
Agreement and for a period of twelve (12) months following termination of his
employment with Urban Television, he will not induce or attempt to induce any
customer, supplier, licensee, shareholder, investor, or business relation of
Urban Television to sever or diminish its relationship with Urban Television, or
refrain from doing business with Urban Television, its subsidiaries, or its
licensees or in any way interfere with the relationship between Urban Television
and any customer, supplier, licensee, shareholder, investor or business relation
of Urban Television.
c. Subject to the provisions of Section 12.d., below, Miles further agrees
that both during the Term of this Agreement and for a period of twelve (12)
months following the termination of his employment with Urban Television, he
will not, directly or indirectly, for himself or any other person or entity; (i)
induce or attempt to induce any employee, consultant, independent sales
representative or independent contractor of Urban Television to leave the employ
of or terminate his, her or its contract with Urban Television; (ii) in any way
interfere with the relationship between Urban Television and any employee,
consultant, independent sales representative or independent contractor of Urban
Television; or (iii) employ, or otherwise engage as an employee, consultant,
independent sales representative or independent contractor, or otherwise, any
individual serving as an employee, consultant, independent sales representative
or independent contractor of Urban Television or its subsidiaries on the date
this Agreement is executed.
d. In the event that Miles receives a Severance Payment under the Change in
Control Agreement, then the restrictions set forth in Sections 12.a., 12.b., and
12.c., above, shall be extended to require Miles to comply with those Sections
for a period of twenty-four (24) months from the termination of his employment.
e. Nothing in this Agreement prohibits Miles from providing truthful
testimony to governmental, regulatory or self regulatory authorities.
f. Miles acknowledges that the covenants contained in this section are
necessary and reasonable to protect Urban Television in the conduct of its
business and that compliance with such covenants will not prevent him from
pursuing his livelihood. However, should any court find that any provision of
such covenants is unreasonable, invalid or unenforceable, whether in period of
time, geographical area or otherwise, then in that event the parties hereby
agree that such covenants shall be interpreted and enforced to the maximum
extent which the court deems reasonable.
13. Remedies. Miles acknowledges that any breach by him of the provisions of
Sections 9, 10, 11 or 12 may be wholly or partly irreparable and not fully
compensable by damages. Miles hereby agrees that such obligations may be
enforced by injunctive relief and other appropriate remedies, as well as by
damages. The remedies available to Urban Television for violations of Sections
9, 10, 11 and 12 are cumulative and not alternative.
14. Amendment; Waivers. This Agreement may be amended only by a written
instrument signed by both parties. No breach of any agreement, warranty or
representation shall be deemed waived unless expressly waived in writing and
signed by the party who might assert such breach. No failure or delay by either
party in exercising any right under this Agreement shall operate as a waiver of
such right nor shall any single or partial exercise of any right preclude any
other or further exercise of such right or the exercise of any other right.
15. Assignment Prohibited. Miles may not assign any of his rights nor delegate
any of his duties hereunder. Urban Television may assign this Agreement and
delegate its duties hereunder in connection with any merger, consolidation, or
sale of assets, or to any of its affiliates at any time owned by, or under
common ownership with, Urban Television, provided that any such successor or
assignee expressly assumes in writing Urban Television's obligations hereunder.
16. Governing Law. This Agreement, including all matters of construction,
validity and performance, shall be governed by, and construed and enforced in
accordance with, the laws of the State of Texas without regard to its choice of
law provisions.
17. Arbitration. Except for Urban Television's right to seek injunctive and
other relief in any court of competent jurisdiction for alleged violations of
Paragraphs 9, 10, 11 and 12 of this Agreement, all disputes and controversies of
every kind between the parties hereto arising out of or in connection with this
Agreement and their employment relationship shall be submitted to binding
arbitration. The arbitrator shall be appointed by an arbitration service agreed
upon by the parties, or if the parties cannot agree upon an arbitration service,
by the Judicial Dispute Resolution of Fort Worth, Texas. The arbitration shall
take place in Tarrant County, Texas. The determination made by the arbitrator
shall be final and binding upon the parties hereto, subject only to the right to
appeal such decision to the District Court on any basis authorized by the
Federal Arbitration Act.
18. Notices. All notices and other communications called for or required by this
Agreement shall be in writing to the parties at their respective addresses
stated below, or to such other address as a party may subsequently specify and
shall be deemed to have been received (i) upon delivery in person, (ii) upon the
passage of seventy-two hours following post by the first class registered or
certified mail, return receipt requested, with postage prepaid, (iii) upon
passage of twenty-four hours following post by overnight receipted courier
service, or (iv) upon transmittal by confirmed telex or facsimile provide that
if sent by facsimile a copy of such notice shall be concurrently sent by U.S.
certified mail, return receipt requested and postage prepaid, with an indication
that the original was sent facsimile and the date of its transmittal.
19. Savings Clause. If any provision of this Agreement, is held to be invalid or
unenforceable to any extent in any context, it shall nevertheless be enforced to
the fullest extent allowed by law in that and other contexts, and the validity
and force of the remainder of this Agreement shall not be affected thereby.
20. Counterparts. This Agreement may be signed in several counterparts, each of
which shall be an original, but all of which together shall constitute the same
instrument.
21. Complete Agreement. This Agreement comprises the entire agreement between
the parties. It supersedes and merges within it all prior agreements,
discussions or understandings between the parties, whether written or oral,
express or implied. In interpreting and construing this Agreement, the fact that
any particular party may have drafted this Agreement or any provision hereof
shall not be given any weight or relevance.
22. Costs and Expenses of Enforcement. If any legal action or arbitration is
brought to interpret or enforce any term or provision of this Agreement, then,
subject to applicable law, the prevailing party shall, in addition to any other
relief to which such party may be entitled, be awarded against the nonprevailing
party, his or its attorney's fees and costs reasonably and actually incurred.
By his signature below, Miles acknowledges that he has read and understood this
Agreement, that its terms have been fully and fairly negotiated between himself
and Urban Television, that he has had the opportunity to seek independent legal
advice and has obtained such independent legal advice about the terms and
conditions of this Agreement as he sees fit, and that he signs it and accepts
its terms, covenants and restrictions voluntarily.
Executed by the parties as of the date first written above.
URBAN TELEVISION NETWORK CORPORATION. XXXXX X. XXXXX III
/s/ Xxxxx Xxxxxxx /s/ Xxxxx X. Xxxxx III
--------------------------------------- ---------------------------------------
By: Xxxxx Xxxxxxx
Its: Executive Vice President/CFO
Notice Address: Notice Address:
0000 Xxxxx Xxxxxx, Xxxxx 000 3416 Hightimber Dr.
Xxxxxxxxx, Xxxxx 00000 Xxxxxxxxx, Xxxxx 00000
Attn: Chief Financial Officer
