Attached files
| file | filename |
|---|---|
| 8-K - Debut Broadcasting Corporation, Inc. | v208474_8k.htm |
| EX-10.5 - Debut Broadcasting Corporation, Inc. | v208474_ex10-5.htm |
| EX-10.3 - Debut Broadcasting Corporation, Inc. | v208474_ex10-3.htm |
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
01, 2011 (the effective date) by and between, Debut Broadcasting Corporation,
Inc., a Nevada corporation (the “Employer” or “Company”) and Robert Marquitz
(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 Operating 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. 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, Insider Trading 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 he has reached the age of
65, and while he or he 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:
Robert Marquitz
Employer:
Debut Broadcasting Corporation,
Inc
With
a
copy
to: James Freeman 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 Harry
Lyles
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Title Chairman
of the Compensation Committee
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Robert
Marquitz - "EXECUTIVE"
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Signed
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Robert
Marquitz,
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 Robert Marquitz
(“Marquitz”).
WHERE AS, Marquitz serves as
Chief Financial Officer of Debut Broadcasting Corporation, and
WHEREAS, the Company and
Marquitz deem it desirable to execute a written document setting forth certain
agreements to become effective as of the date of execution of Marquitz’
Executive Employment Agreement with the Company,
NOW THEREFORE, in
consideration of the promises and mutual obligations set forth in this
Agreement, the Company and Marquitz agree as follows:
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I.
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Consideration.
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Beginning
January 1, 2011, and for a period of five (5) years thereafter, Marquitz shall
be eligible and responsible for the rights and responsibilities incorporated
herein by reference to the Executive Employment Agreement by and between
Marquitz and Debut Broadcasting Corporation. Such consideration shall
automatically extend and renew at each renewal period of the Executive
Employment Agreement.
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II.
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Limited Release and
Waiver.
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Except as
described below, and except for the Company’s obligations to Marquitz 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
Marquitz acknowledges by her signature on this Agreement, Marquitz 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 Marquitz 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 Marquitz’ employment and/or
resignation from employment by the Company. Marquitz 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,
Marquitz’ rights and claims to receive from the Company the specified
compensation, stock, and benefits, and any other compensation, stock, and
benefits to which Marquitz 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 Marquitz is entitled to receive, and that the
Company shall pay, convey, grant, or provide to Marquitz.
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III.
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Limited Confidentiality and
Non-Disclosure.
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Except as
stated below, in order to protect the legitimate interests of the Company,
Marquitz agrees that he 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 Marquitz received or to which Marquitz
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 Marquitz’
disclosure of information to attorneys and/or financial or tax consultants from
whom Marquitz seeks advice.
If the
confidentiality provisions of this Agreement are violated by Marquitz or someone
to whom Marquitz discloses confidential information, then Marquitz will be
responsible for all reasonable enforcement costs, including, but not limited to,
actual and reasonable attorney’s fees.
Marquitz
agrees that he shall not engage in other outside business interests without the
prior approval of the Debut Broadcasting Board of Directors.
Notwithstanding, Marquitz agrees that this obligation of confidentiality and
non-disclosure shall apply in all other business interests that Marquitz may now
be involved in, or may become involved in at a future time.
Notwithstanding
any other provisions of this Agreement, Marquitz understands that nothing in
this Agreement, including the remedy provisions for any breach by Marquitz, 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.
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IV.
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Effect of Marquitz’ Voluntary
Termination From Employment.
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Marquitz
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. Marquitz
understands and agrees that he will not in the future seek, and will not be
eligible for, re-employment by the Company, and Marquitz agrees that he is to be
permanently removed from the Company’s employment force. Notwithstanding the
foregoing, Marquitz agrees that, as requested by the Board of Directors of Debut
Broadcasting, he will fully cooperate with the Company with respect
to any matter in which he was involved during her employment, including, but not
limited to, providing truthful information and testimony, provided that the
Company shall reimburse Marquitz for all of her actual and reasonable expenses
incurred in providing such cooperation to the Company.
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V.
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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 Marquitz , Marquitz agrees that, except as stated below, he
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 Marquitz, Marquitz agrees that he 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 Marquitz had
actual contact while employed by the Company and any person or
entity about whom Marquitz 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 Marquitz, Marquitz agrees that he 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
Marquitz’ 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. Marquitz agrees that he 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. Marquitz acknowledges that as
Chief Financial Officer of Debut Broadcasting Corporation, Inc, that he
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, Marquitz 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.
Marquitz further agrees that if he 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
Marquitz to prevent such continued or threatened breach. Marquitz 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.
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Return of
Documents, Materials or
Property.
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Marquitz
acknowledges and confirms, by her signature, that he 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 Marquitz, except as may be authorized by the
Company under the provisions of paragraphs I and IV of this
Agreement.
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VII.
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Applicable
Law.
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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.
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VIII.
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Successors;
Binding Agreement.
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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. Marquitz’
rights and obligations under this Agreement are personal and may not be assigned
to any other person or entity.
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IX.
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Integration.
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Except as
stated below, the Company and Marquitz agree that to the extent that any
provision of this Agreement conflicts with any prior agreement between the
Company and Marquitz 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 Marquitz, 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 Marquitz, or any obligation of the Company to
Marquitz, with respect to compensation, stock, or benefits to which Marquitz is
entitled.
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X.
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Severability.
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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.
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XI.
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Drafting.
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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.
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XII.
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Counterparts.
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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.
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XIII.
|
Captions.
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The
captions to the various paragraphs of this Agreement are for convenience only
and are not part of this Agreement.
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XIV.
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Knowing and Voluntary
Execution.
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Marquitz
acknowledges that he 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, Marquitz expressly acknowledges that he
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, Marquitz voluntarily elects to forego waiting twenty-one
(21) full days. Marquitz 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.
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XV.
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Right of
Revocation.
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Marquitz
agrees and recognizes that, for a period of seven (7) calendar days following
his execution of this Agreement, he may revoke and nullify this Agreement by
providing written notice of revocation within this seven (7) day period to Harry
Lyles at ______________________________. Marquitz 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 Harry
Lyles
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Title Chairman
of the Compensation Committee
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Robert
Marquitz - "MARQUITZ"
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Signed
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Robert
Marquitz,
Individually
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