Exhibit
10.1


 


EXECUTIVE
EMPLOYMENT AGREEMENT


 


 


THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”)
is made and entered into effective as of July 1, 2003 by and between USA Broadband, Inc., a Delaware corporation
(the “Company”) and Grant Miller (“EXECUTIVE”).  The Company and EXECUTIVE are hereinafter
collectively referred to as the “Parties,” and individually referred to as each
or any “Party.”


 


RECITALS:


 


A.                                   WHEREAS,
the Company desires assurance of the continued association and services of
EXECUTIVE in order to retain EXECUTIVE’s experience, skills, abilities,
background and knowledge, and is willing to confirm the continued engagement of
EXECUTIVE’s services on the terms and conditions set forth in this Agreement;
and


 


B.                                     WHEREAS,
EXECUTIVE desires to continue in the employment of the Company, and is willing
to continue such employment on the terms and conditions set forth in this
Agreement.


 


AGREEMENT:


 


In consideration of the foregoing premises and the
mutual covenants herein contained, and for other good and valuable
consideration, the Parties, intending to be legally bound, agree as follows:


 


1.                                       Employment.


 


1.1                                 The
Company hereby employs EXECUTIVE, and EXECUTIVE hereby accepts employment by
the Company, upon the terms and conditions set forth in this Agreement for the
period beginning on the date hereof and ending as provided in Paragraph 3
hereof (the “Employment Period”).


 


1.2                                 During
the Employment Period, EXECUTIVE shall serve as Chief Financial Officer of the
Company, and shall have the normal duties, responsibilities and authority of
such office, unless otherwise determined from time to time by the Company’s
Board of Directors.  EXECUTIVE shall do
and perform all services, acts or responsibilities necessary or advisable to
carry out the job duties of Chief Financial Officer as assigned by the Company,
provided, however, that at all times during his employment EXECUTIVE shall be
subject to the direction and policies from time to time established by the
Board of Directors of the Company.


 


2.                                       Loyal
and Conscientious Performance.


 


2.1                                 During
his employment by the Company, EXECUTIVE shall devote sufficient energy,
abilities and productive time to the proper and efficient performance of this
Agreement necessary to properly carry out the duties of Chief Financial
Officer.


 

















 


3.                                       Term
of Employment.


 


3.1                                 EXECUTIVE
shall be employed pursuant to the terms of this Agreement for a three (3) year
term beginning on July 1, 2003 and expiring at midnight on July 1, 2006,
provided that this Agreement shall be automatically extended for successive
additional one-year terms unless one party gives the other party written
notice, at least ninety (90) days prior to the end of such one year term, of
its/his intent not to renew this Agreement. The initial term of employment and
any extensions thereof shall be referred to as the “Employment Period”.


 


4.                                       Compensation.


 


4.1                                 Beginning
with the Effective Date of this Agreement, Company shall pay EXECUTIVE a salary
(the “Base Salary”) of Two Hundred and Forty Thousand Dollars ($240,000.00) per
year, payable twice monthly in accordance with the Company’s normal payroll
practices for Executives.


 


4.2                                 EXECUTIVE’s
compensation may be changed only by mutual agreement of EXECUTIVE and the Board
of Directors of the Company.  Any such
agreement shall be evidenced by a written amendment of this Agreement, which,
among other things, shall specify with particularity any change in EXECUTIVE’s
compensation and the date or dates when each such change shall become
effective.


 


4.3                                 Upon
the effective date of this Agreement, EXECUTIVE shall also receive from the
Company an additional stock option granting EXECUTIVE the right to purchase
500,000 shares of the Company’s common stock at the price of $1.10 per share
during the option period. The terms and conditions of this grant of stock
option shall be set forth in a separate stock option agreement. The Parties
acknowledge and confirm that this stock option is in addition to the stock
option rights EXECUTIVE currently holds under a previously issued grant of
500,000 shares of the Company’s common stock at a price of $1.33 per share.


 


4.4                                 In
addition to the Base Salary payable to EXECUTIVE hereunder, the EXECUTIVE shall
be entitled to the following benefits during the Employment Period:


 


4.4.1                        All
benefits to which other Executive officers of the Company are entitled, as
determined by the Company’s Board of Directors, on terms comparable thereto,
including but not limited to, participation in any and all pension and profit
sharing plans, bonus and incentive payment programs, group life insurance
policies and plans, medical, health, dental and disability insurance policies
and plans, and the like, which may be maintained by the Company for the benefit
of its Executive officers.


 


4.4.2                        Four
(4) weeks vacation per year, which shall accrue annually beginning with the
effective date of this Agreement.  If
the EXECUTIVE does not utilize the entire four weeks of annual vacation in a
given year, he may carry over not more than four weeks into the following
calendar year.


 


4.4.3                        EXECUTIVE
shall receive a performance bonus (“Performance Bonus”) of up to 100% Base
Salary based upon EXECUTIVE’s achievement of certain milestones by EXECUTIVE as
set forth by the Board of Directors.


 


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4.5                                 The
Company shall reimburse EXECUTIVE for all reasonable out-of-pocket expenses
incurred by him in the course of performing his duties under this Agreement,
which are consistent with the Company’s policies in effect from time to time with
respect to travel, entertainment and other business expenses, subject to the
Company’s requirements with respect to reporting and documentation of such
expenses pursuant to Company policy.


 


4.6                                 The
Company shall provide EXECUTIVE with an automobile for use in Company business,
and EXECUTIVE shall maintain and provide to the Company records of the use of
that automobile for other than Company purposes, as well as all other records
relating to such automobile.


 


4.7                                 All
of EXECUTIVE’s compensation shall be subject to customary federal and state
withholding taxes and any other employment taxes as are commonly required to be
collected or withheld by the Company.


 


4.8                                 Change
of Control.  Should there be a
Change of Control of the Company or any other transaction in which the Company
is not the surviving entity during the Employment Period, then as part of that
transaction, the Company will require the surviving entity to modify this
Agreement in an equitable manner to provide EXECUTIVE with the same Base Salary
and benefits.  Any unvested options granted to the EXECUTIVE hereunder shall
fully vest upon a Change of Control or upon a termination of the EXECUTIVE’s
employment under this Agreement by the Company Without Cause.


 


5.                                       Termination.


 


5.1                                 Termination
for Cause.  The Company may
terminate this Agreement for Cause (as defined herein) by delivery of written
notice to EXECUTIVE specifying the cause or causes relied upon for such
termination.  If EXECUTIVE’s employment
under this Agreement is terminated by the Company for Cause before the last day
of any calendar month, EXECUTIVE shall be entitled to receive as compensation
for such calendar month, only the Base Salary set forth in Section 4.1 prorated
to the date of termination on the basis of a 30-day calendar month.  Grounds for the Company to terminate this
Agreement for “Cause” shall include only the occurrence of any of the following
events:


 


5.1.1                        EXECUTIVE’s
willful misconduct or gross negligence in the performance of his duties
hereunder;


 


5.1.2                        EXECUTIVE’s
willful failure or refusal to perform in the usual manner at the usual time
those duties which he regularly and routinely performs in connection with the
business of the Company or such other duties reasonably related to the capacity
in which he is employed hereunder which may be assigned to him by the Board of
Directors of the Company, if such failure or refusal has not been substantially
cured to the satisfaction of the Board of Directors within thirty (30) days
after written notice of such failure or refusal has been given by the Company
to EXECUTIVE.


 


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5.1.3                        EXECUTIVE’s
performance of any action when specifically and reasonably instructed not to do
so by the Board of Directors of the Company;


 


5.1.4                        EXECUTIVE’s
engaging or in any manner participating in any activity which is directly
competitive with or intentionally injurious to the Company;


 


5.1.5                        EXECUTIVE’s
commission of any fraud against the Company or use or appropriation for his
personal use or benefit of any funds or properties of the Company not
authorized by the Board of Directors to be so used or appropriated; or


 


5.1.6                        EXECUTIVE’s
conviction of any crime involving moral turpitude.


 


For purposes of this definition, no act or failure to act by the
EXECUTIVE shall be considered “willful” or “grossly negligent” if the EXECUTIVE
acted (or failed to act) in good faith with the reasonable belief that his
actions or omission was in the Company’s best interest.


 


Any notice of termination given pursuant to this
Section 5.1 shall effect termination as of the date specified in such notice
or, in the event no such date is specified, on the last day of the month in
which such notice is delivered.


 


5.2                                 Termination
Without Cause.  The Company may
voluntarily terminate this Agreement without Cause by giving not less than
thirty (30) days written notice to EXECUTIVE. 
Any such notice shall specify the exact date of termination (the
“Termination Date”).  If EXECUTIVE’s
employment under this Agreement is terminated by the Company without Cause (as
defined herein), EXECUTIVE shall be entitled to receive a) his Base Salary and
health insurance coverage, both at the rate existing at the date of
termination, for an additional twelve (12) months after the Termination Date.  All Base Salary payments shall be paid over
time in accordance with the Company’s general payroll practices, as and when
such Base Salary would have been paid had EXECUTIVE’s employment not
terminated; b)
any business expenses which are properly owing to EXECUTIVE through the date of
termination; and c) any options granted to EXECUTIVE to purchase shares of the
Company’s common stock that are unvested at the time of such termination
without Cause shall vest immediately and be immediately exercisable for the
term of such options pursuant to the applicable stock option agreement. The
Executive shall not be under any obligation to mitigate the Company’s
obligation by securing other employment or otherwise.


 


5.2.1                        EXECUTIVE
may voluntarily terminate this Agreement upon no less than thirty (30) days
written notice of such termination submitted to the Board of Directors, and in
such event EXECUTIVE shall be entitled to receive all amounts due to him
through the date of termination.


 


5.3                                 This
Employment Agreement is a personal services contract whereby the Company is
engaging the services of EXECUTIVE.  By
entering into this Agreement, the Company is relying on EXECUTIVE’s performing
his services for the Company throughout the entire term of this Agreement.


 


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6.                                       Death
or Disability During Term of Employment.


 


6.1                                 This
Agreement shall terminate without notice upon the date of EXECUTIVE’s death or
the date when EXECUTIVE becomes “completely disabled” as that term is defined
in Section 6.4.


 


6.2                                 In
the event of EXECUTIVE’s death, all rights of EXECUTIVE to compensation
hereunder shall automatically terminate immediately upon his death, except that
EXECUTIVE’s heirs, personal representatives or estate shall be entitled to any
unpaid portion of his salary and accrued benefits earned up to the date of his
death.


 


6.3                                 In
the event EXECUTIVE is disabled, EXECUTIVE shall be entitled to receive such
disability benefits as would apply to other senior Executives in the Company,
subject to the terms and conditions of any such Company disability program.


 


6.4                                 The
term “completely disabled” as used in this Agreement shall mean the inability
of EXECUTIVE to perform his duties under this Agreement because he has become
permanently disabled within the meaning of any policy of disability income
insurance covering Executives of the Company then in force.  In the event the Company has no policy of
disability income insurance covering Executives of the Company in force when
EXECUTIVE becomes disabled, the term “completely disabled” shall mean the
inability of EXECUTIVE to perform his normal and customary duties under this
Agreement for a total of four (4) consecutive months by reason of any
incapacity, physical or mental, which the Board of Directors of the Company,
based upon medical advice or an opinion provided by a licensed physician
acceptable to the Board of Directors of the Company, determines to have
incapacitated EXECUTIVE from satisfactorily performing all of his usual
services for the Company during the foreseeable future.  The action of the Board of Directors of the
Company shall be final and binding and the date such action is taken shall be
the date of such complete disability for purposes of this Agreement, and upon
such date this Agreement shall become null and void and of no further force and
effect.


 


7.                                       Proprietary
and Confidential Information.


 


7.1                                 EXECUTIVE,
during the term of this Agreement, will have access to and become acquainted
with various information of substantial value to the Company, including trade
secrets, which is generally not known in the industry, and which gives the
Company an advantage over its competitors who do not know or use it, including,
but not limited to, trade secrets, research and development, sales and customer
information, customer and prospect lists, and business and financial
information relating to the business, products, practices, and techniques of
the Company or its business partners or vendors (collectively, the
“Confidential Information”).  EXECUTIVE
agrees to regard and preserve as confidential such Confidential Information
obtained by EXECUTIVE from whatever source and will not, either during
EXECUTIVE’s employment or thereafter, publish or disclose any part of such
Confidential Information in any manner at any time, or use such Confidential
Information except on behalf of the Company, without the prior written consent
of the Company.  All files, records,
documents, drawings, specifications, equipment, computer disks and software,
and other electronic media or similar items relating to the business of the
Company, whether prepared by the EXECUTIVE or


 


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otherwise coming into EXECUTIVE’s possession, shall remain the
exclusive property of the Company.


 


7.2                                 Preservation
of Property.  EXECUTIVE will
exercise reasonable care, consistent with good business judgment, to preserve
in good working order, subject to reasonable wear and tear from authorized
usage, and to prevent loss of, any equipment, instruments or accessories of the
Company in his custody for the purpose of conducting the business of the
Company.  Upon request, EXECUTIVE will
promptly surrender the same to the Company at the conclusion of his employment,
or if not surrendered, EXECUTIVE will account to the Company to its reasonable
satisfaction as to the present location of all such instruments or accessories
and the business purpose for their placement at such location.  At the conclusion of EXECUTIVE’s employment
with the Company, he agrees to return such instruments or accessories to the
Company or to account for same to the Company’s reasonable satisfaction.


 


7.3                                 No
Inconsistent Agreements.  EXECUTIVE
affirms that he has no agreement with any other party that would preclude his
compliance with any obligations under this Agreement.


 


8.                                       Assignment
and Binding Effect.


 


8.1                                 This
Agreement shall be binding upon and inure to the benefit of EXECUTIVE and
EXECUTIVE’s heirs, executors, administrators, estate, beneficiaries, and legal
representatives.  Neither this Agreement
nor any rights or obligations under this Agreement shall be assignable by
either party without the prior express written consent of the other party.  This Agreement shall be binding upon and
inure to the benefit of the Company and its successors, assigns and legal
representatives.


 


9.                                       Notices.


 


9.1                                 All
notices or demands of any kind required or permitted to be given by the Company
or EXECUTIVE under this Agreement shall be given in writing and shall be
personally delivered (and receipted for) or sent by facsimile (with
confirmation receipt), or sent by recognized commercial overnight courier, or
mailed by certified mail, return receipt requested, postage prepaid, addressed
as follows:


 


	
   

  	
  If to the Company:

  	
  Ric Landry

  Maroon Bells

  269 Market Square

  Lake Forest, IL 60045

  Telephone:  (847) 295-8000

  Facsimile:  (847) 295-8035

  
	
   

  	
   

  	
   

  
	
   

  	
  If to EXECUTIVE:

  	
  Grant Miller

  4 Tobago Way

  Coronado, CA 92118

  Telephone: (619) 424-3544

  Facsimile: (619) 424-8040

  



 


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Any such written notice shall be deemed received when personally
delivered or upon receipt in the event of facsimile or overnight courier, or
three (3) days after its deposit in the United States mail by certified mail as
specified above.  Either Party may
change its address for notices by giving notice to the other Party in the
manner specified in this section.


 


10.                                 Choice
of Law.


 


10.1                           This
Agreement is made in San Diego, California. 
This Agreement shall be construed and interpreted in accordance with the
internal laws of the State of California. 
Each of the parties hereto agree to the exclusive jurisdiction of the
state and federal courts located in the State of California for any and all
actions between the parties.  Any
controversy or claim arising out of or relating to this Agreement or the breach
thereof, whether involving remedies at law or in equity, shall be adjudicated
in San Diego County, California.


 


11.                                 Integration.


 


11.1                           This
Agreement contains the entire agreement of the parties relating to the subject
matter of this Agreement, and supersedes all prior oral and written employment
agreements or arrangements between the Parties.  This Agreement cannot be amended or modified except by a written
agreement signed by EXECUTIVE and the Company.


 


12.                                 Waiver.


 


12.1                           No
term, covenant or condition of this Agreement or any breach thereof shall be
deemed waived, except with the written consent of the Party against whom the
waiver is claimed, and any waiver of any such term, covenant, condition or
breach shall not be deemed to be a waiver of any preceding or succeeding breach
of the same or any other term, covenant, condition or breach.  No failure or exercise, delay in exercising,
or single or partial exercise of any right, power or remedy by either party
hereto shall constitute a waiver thereof or shall preclude any other or further
exercise of the same or any other right, power or remedy.


 


13.                                 Severability.


 


13.1                           The
unenforceability, invalidity or illegality of any provision of this Agreement
shall not render any other provision of this Agreement unenforceable, invalid
or illegal.


 


14.                                 Interpretation;
Construction.


 


14.1                           The
headings set forth in this Agreement are for convenience only and shall not be
used in interpreting this Agreement. The Parties acknowledge that each Party
and its counsel has reviewed and revised, or had an opportunity to review and
revise, this Agreement, and the normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement.


 


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15.                                 Attorneys’
Fees.


 


15.1                           In
any controversy or claim arising out of or relating to this Agreement or the
breach thereof, which results in legal action, proceeding or arbitration, the
prevailing party in such action, as determined by the court or arbitrator,
shall be entitled to recover reasonable attorneys’ fees and costs incurred in
such action.


 


16.                                 Counterparts.


 


16.1                           This
Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall together constitute an original hereof.


 


17.                                 Representations
and Warranties.


 


17.1                           EXECUTIVE
represents and warrants that he is not restricted or prohibited, contractually
or otherwise, from entering into and performing each of the terms and covenants
contained in this Agreement, and that his execution and performance of this
Agreement will not violate or breach any other agreement between EXECUTIVE and
any other person or entity.


 


18.                                 Arbitration.


 


Any controversy or claim arising out or relating to this Agreement, or
the breach hereof, or arising out of or relating to the rights, duties or
obligations of the Company or of EXECUTIVE shall be settled by binding arbitration
conducted in San Diego County, California in accordance with, and by an
arbitrator appointed pursuant to, the rules of the American Arbitration
Association in effect at the time, and the judgment upon the award rendered
pursuant thereto shall be in writing and may be entered in any court having
jurisdiction, and all rights or remedies of the Company and of the Executive to
the contrary are hereby expressly waived. 
The Company shall pay the arbitration fees and the costs for such
arbitrator.


 


IN WITNESS WHEREOF, the Parties have executed this
Agreement as of the date first above written.


 


	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  a Delaware Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ RIC LANDRY

  
	
   

  	
   

  	
  Ric Landry, 
  Director

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ GRANT MILLER

  
	
   

  	
  Grant Miller

  



 


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