This Employee Retention Agreement involves
Title: EMPLOYMENT AGREEMENT
Governing Law: Texas Date: 1/25/2007
Law Firm: Graubard Miller
THIS AGREEMENT is entered into by and between Leonard L. Firestone, a resident of the State of Texas (the "Executive") and FIRESTONE COMMUNICATIONS, INC. , a Delaware corporation (the "Company").
WHEREAS , Executive is employed by the Company and the Company and Executive desire to continue the employment of Executive on the terms set forth herein, effective on the date ("Effective Date") of the consummation of the transactions contemplated by that certain Agreement and Plan of Merger dated the date hereof among Juniper Partners Acquisition Corp. ("Parent"), Firecomm Acquisition, Inc., the Company and certain Stockholders of the Company ("Merger Agreement"); and
WHEREAS , the Company and Executive desire to further set forth in a written agreement the complete terms and conditions pursuant to which Executive shall continue to be employed by the Company; and
WHEREAS , the Company and Executive intend that this Agreement shall supersede any and all previous oral or written employment agreements between the Company and Executive.
NOW, THEREFORE , in consideration of the covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
As used in this Agreement, the following words and/or phrases shall have the meanings set forth below unless a different meaning plainly is required by context:
1.1 Agreement shall mean this Employment Agreement between the Company and Executive.
1.2 Affiliate shall mean any parent, brother-sister or subsidiary corporation of the Company, any joint venture in which the Company owns at least a 50 percent interest, and any partnership, limited liability partnership or limited liability corporation in which the Company or any of its wholly-owned subsidiaries owns at least a 50 percent interest.
1.3 Cause shall mean (i) Executive’s breach of a material provision of this Agreement; (ii) Executive’s failure to perform any substantial duty and responsibility of his position with the Company and its affiliates (other than any such failure resulting from incapacity due to Disability); (iii) Executive’s engagement in any illegal conduct or misconduct which is injurious to the Company; (iv) violation of or failure to adhere to any published Company policy or procedure or any directive of the Company’s Board of Directors; (v) Executive’s being charged with or conviction of, or a plea of guilty or nolo contendere to, (a) a felony or (b) a misdemeanor involving moral turpitude; (vi) violation of any of the restrictive covenants contained in Section 4 hereof; (vii) violation of any rule or regulation or agreement applicable to the Company’s business; (viii) Executive’s self-employment or employment of Executive by any person or entity other than the Company or its affiliates; or (ix) Executive’s engagement in any activity that is in conflict of interest or competitive with the Company or its affiliates (other than any isolated, insubstantial or inadvertent action not taken in bad faith and which is promptly remedied by Executive upon notice by the Company).
1.4 Company shall mean FIRESTONE COMMUNICATIONS, INC. , its successors and assigns, and any other corporation, partnership, limited liability company, sole proprietorship or other type of business entity into which the Company may be merged, consolidated or otherwise combined.
1.5 Confidential Information shall mean any data or information, other than Trade Secrets, that is valuable to the Company and is not generally known by the public. To the extent consistent with the foregoing, Confidential Information includes, but is not limited to, lists (whether or not in writing) of the Company’s current or potential sponsors or advertisers; current or potential programming or ideas; lists of and other information about the Company’s executives and employees; financial information (whether or not in writing) that has not been released to the public by the Company; marketing techniques; price lists and pricing policies; the
Company’s business methods, contracts and contractual relations with the Company’s sponsors, advertisers, and cable and satellite television systems; and future business plans and strategies. Confidential Information also includes any information or data described above which the Company obtains from another party and which the Company treats as proprietary or designates as confidential information whether or not owned or developed by the Company.
1.6 Disability shall mean a physical or mental impairment that prohibits Executive from performing the duties of his position, for which he becomes eligible to receive benefits under the Company’s long-term disability plan, if such a plan is then in existence, or as determined in the sole direction of the Company’s Board of Directors.
1.7 Executive shall mean Leonard L. Firestone.
1.8 Good Reason shall exist if the Company, without Executive’s written consent, (a) takes any action that is inconsistent with, or results in the reduction of, Executive as a senior executive officer of the Company; (b) commits a breach of this Employment Contract which is not remedied by the Company within thirty (30) days of receiving written notice by Executive of such breach; (c) requires Executive to relocate more than five hundred (500) miles from the location of the Company’s offices in Fort Worth, Texas; or (d) any successor or assignee of the Company fails to assume and perform the Company’s obligations under this Employment Contract.
1.9 Termination Date shall mean the date of Executive’s official termination of employment for any reason (including death or disability).
1.10 Trade Secret shall mean information, without regard to form, including, but not limited to, technical or non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, programming plans or a list of actual or potential customers, sponsors or suppliers which is not commonly known by or available to the public and which information: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its
secrecy. Trade Secrets also includes any information or data described above which the Company obtains from another party and which the Company treats as proprietary or designates as trade secrets, whether or not owned or developed by the Company.
DUTIES AND AUTHORITY
2.1 Duties and Authority. Executive is engaged and agrees to perform services for and on behalf of the Company as its President and Chief Operating Officer and shall report to the Chief Executive Officer of the Company. Executive’s duties shall include the planning and directing of all functional activities of the company including marketing, sales, accounting production, broadcasting, technical services, materials management and general administration. Executive will establish and monitor the company goals and annual budget. Executive will review, on a continuous basis, the general business climate for the company to develop new business opportunities, ensure excellent customer service, expand business and maintain existing relationships with vendors. Executive will also promote a marketing and promotional strategy aimed at increasing sales and measuring company performance. Additionally, Executive will control the process of attaining higher company productivity by analyzing organizational structure, culture and systems. Executive will identify resources (staff, equipment, funds) required, and communicate with pertinent department managers on the supporting strategies and needs involving company goals. Executive will also develop and maintain a effective company through the selection, termination, training, compensation, review and motivation of department managers. Executive’s duties may be modified or enhanced at the discretion of the Company’s Chief Executive Officer or Board of Directors or as dictated by the Company’s bylaws. Executive agrees to perform such duties diligently and efficiently and in accordance with the reasonable directions of the Company’s Chief Executive Officer and Board of Directors. Executive shall conduct himself at all times in a business-like and professional manner as appropriate for his position and shall represent the Company in all respects in compliance with good business and ethical practices. In addition, Executive shall be subject to and abide by the policies and procedures of the Company applicable to personnel of the Company, as may be adopted from time to time.
2.2 Best Efforts. During the term of this Agreement, Executive shall devote his full attention, energies and best efforts to rendering services on behalf of the Company. Executive is not prohibited from investing or trading in stocks, bonds, commodities or other forms of investment, including real property, so long as Executive does not "participate" (within the meaning of Treas. Reg. §§1.469-5(f) and 1.469-5T(f)) in such investments.
2.3 Term. The term of Executive’s employment pursuant to this Agreement shall commence on the Effective Date hereof and shall continue until three years after the Effective Date, subject to earlier termination as provided in this Agreement.
2.4 Prior Agreement. Prior to the Effective Date, the terms of Executive’s employment by the Company shall be governed by the Employment Agreement between the Company and the Executive dated December 20, 2004, as the same has been or may hereafter be amended (the "Prior Agreement"). From and after the Effective Date, the Prior Agreement shall be terminated and null, void and of no further effect.
COMPENSATION AND BENEFITS
3.1 Annual Base Salary. The Company shall pay to Executive as compensation for his services provided hereunder a base salary of Two Hundred Thirty-Five Thousand Dollars ($235,000) per year ("Base Salary"), payable on a periodic basis consistent with the regular payroll practices of the Company. All payments to Executive shall be subject to all applicable tax withholdings. Such Base Salary shall be reviewed annually by the Company’s Board of Directors and may be increased in its sole discretion.
3.2 Incentive Compensation. At the discretion of the Company’s Board of Directors, Executive may be paid a bonus for the year 2006, notwithstanding that the Effective Date shall be later than December 31, 2006. Executive shall qualify for additional annual bonuses based on his individual performance and the performance of the Company, in accordance with performance goals established by the Company’s Board of Directors, the determination with respect to such qualification to be within the sole judgment of the Company’s Board of
Directors. Such bonuses shall be up to an amount not to exceed fifty percent (50%) of his annual Base Salary, as in effect from time to time.
3.3 Employee Benefit Plans and Policies. Executive shall be entitled to participate in each employee benefit plan, policy or arrangement which is sponsored, maintained or contributed to by the Company and in which the current executive officers of the Company may participate, in accordance with the terms and provisions of such plans in effect from time to time, which may include group health insurance, 401(k) plan participation, and group life insurance benefits. If the Company does not have a group health insurance plan in place as of the Effective Date, the Company shall reimburse Executive for the reasonable costs of obtaining individual health insurance coverage until such time as a group plan is established, in an amount not to exceed $750 per month. The Company shall also reimburse Executive for premiums for personal term life insurance policies maintained by Executive on his life, up to a maximum of $1,000 per year. Any prior obligation of the Company to reimburse Executive for other life insurance premiums is hereby terminated from and after the Effective Date.
3.4 Vacation. Executive shall be entitled to such paid vacation time as is generally provided to the Company’s executive officers, but not less than four weeks of paid vacation time, pursuant to the Company’s policies, which may be amended from time to time. Executive shall not be entitled to carry over, or receive any payment for, any vacation time which is not used during the calendar year.
3.5 Expense Reimbursement. The Company shall reimburse Executive for reasonable, ordinary and necessary travel and other business related expenses, including entertainment expenses, incurred by him in performance of the business of the Company in accordance with the Company’s standard expense reimbursement practices and policies in existence from time to time for senior executive officers of the Company, subject to such dollar limitations and verification and record keeping requirements as may be established from time to time by the Company.
3.6 Equity Grant. In accordance with and subject to the terms of Parent Plan (as defined in the Merger Agreement) and subject to the approval of such plan by the stockholders of Parent and to the approval of the Board of Directors of Parent, and subject to any additional
terms and conditions of such grant to be as specified in the Parent Plan, Executive shall be granted, effective on the Effective Date, an option to purchase 120,000 shares of Parent’s common stock, such option to vest in three equal portions on each of the first three anniversaries of the Effective Date and to be exercisable at the price established pursuant to the Parent Plan for the business day next preceding the Effective date.
4.1 Nondisclosure of Trade Secrets and Confidential Information. In the course of Executive’s employment by the Company, Executive has had access to and will have access to the Company’s most sensitive and most valuable trade secrets, proprietary information, and confidential information concerning the Company and its subsidiaries, their present and future business plans, development and programming projects, customers, sponsors, advertisers, multiple system operator (MSO) relationships and busi