**Exhibit10.1**

 

**EXECUTIVEEMPLOYMENT 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 hereinaftercollectively referred to as the “Parties,” and individually referred to as eachor any “Party.”

 

RECITALS:

 

A.                                   WHEREAS,the Company desires assurance of the continued association and services ofEXECUTIVE in order to retain EXECUTIVE’s experience, skills, abilities,background and knowledge, and is willing to confirm the continued engagement ofEXECUTIVE’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 willingto continue such employment on the terms and conditions set forth in thisAgreement.

 

AGREEMENT:

 

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

 

# 1.                                       Employment.

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

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## 1.2                                 Duringthe Employment Period, EXECUTIVE shall serve as Chief Financial Officer of theCompany, and shall have the normal duties, responsibilities and authority ofsuch office, unless otherwise determined from time to time by the Company’sBoard of Directors.  EXECUTIVE shall doand perform all services, acts or responsibilities necessary or advisable tocarry out the job duties of Chief Financial Officer as assigned by the Company,provided, however, that at all times during his employment EXECUTIVE shall besubject to the direction and policies from time to time established by theBoard of Directors of the Company.

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# 2.                                       Loyaland Conscientious Performance.

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## 2.1                                 Duringhis employment by the Company, EXECUTIVE shall devote sufficient energy,abilities and productive time to the proper and efficient performance of thisAgreement necessary to properly carry out the duties of Chief FinancialOfficer.

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# 3.                                       Termof Employment.

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

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# 4.                                       Compensation.

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## 4.1                                 Beginningwith 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) peryear, payable twice monthly in accordance with the Company’s normal payrollpractices for Executives.

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

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## 4.3                                 Uponthe effective date of this Agreement, EXECUTIVE shall also receive from theCompany an additional stock option granting EXECUTIVE the right to purchase500,000 shares of the Company’s common stock at the price of $1.10 per shareduring the option period. The terms and conditions of this grant of stockoption shall be set forth in a separate stock option agreement. The Partiesacknowledge and confirm that this stock option is in addition to the stockoption rights EXECUTIVE currently holds under a previously issued grant of500,000 shares of the Company’s common stock at a price of $1.33 per share.

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## 4.4                                 Inaddition to the Base Salary payable to EXECUTIVE hereunder, the EXECUTIVE shallbe entitled to the following benefits during the Employment Period:

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### 4.4.1                        Allbenefits to which other Executive officers of the Company are entitled, asdetermined by the Company’s Board of Directors, on terms comparable thereto,including but not limited to, participation in any and all pension and profitsharing plans, bonus and incentive payment programs, group life insurancepolicies and plans, medical, health, dental and disability insurance policiesand plans, and the like, which may be maintained by the Company for the benefitof its Executive officers.

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### 4.4.2                        Four(4) weeks vacation per year, which shall accrue annually beginning with theeffective date of this Agreement.  Ifthe EXECUTIVE does not utilize the entire four weeks of annual vacation in agiven year, he may carry over not more than four weeks into the followingcalendar year.

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### 4.4.3                        EXECUTIVEshall receive a performance bonus (“Performance Bonus”) of up to 100% BaseSalary based upon EXECUTIVE’s achievement of certain milestones by EXECUTIVE asset forth by the Board of Directors.

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## 4.5                                 TheCompany shall reimburse EXECUTIVE for all reasonable out-of-pocket expensesincurred 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 withrespect to travel, entertainment and other business expenses, subject to theCompany’s requirements with respect to reporting and documentation of suchexpenses pursuant to Company policy.

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## 4.6                                 TheCompany shall provide EXECUTIVE with an automobile for use in Company business,and EXECUTIVE shall maintain and provide to the Company records of the use ofthat automobile for other than Company purposes, as well as all other recordsrelating to such automobile.

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## 4.7                                 Allof EXECUTIVE’s compensation shall be subject to customary federal and statewithholding taxes and any other employment taxes as are commonly required to becollected or withheld by the Company.

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4.8                                 Changeof Control.  Should there be aChange of Control of the Company or any other transaction in which the Companyis not the surviving entity during the Employment Period, then as part of thattransaction, the Company will require the surviving entity to modify thisAgreement in an equitable manner to provide EXECUTIVE with the same Base Salaryand benefits.  Any unvested options granted to the EXECUTIVE hereunder shallfully vest upon a Change of Control or upon a termination of the EXECUTIVE’semployment under this Agreement by the Company Without Cause.

 

# 5.                                       Termination.

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## 5.1                                 Terminationfor Cause.  The Company mayterminate this Agreement for Cause (as defined herein) by delivery of writtennotice to EXECUTIVE specifying the cause or causes relied upon for suchtermination.  If EXECUTIVE’s employmentunder this Agreement is terminated by the Company for Cause before the last dayof any calendar month, EXECUTIVE shall be entitled to receive as compensationfor such calendar month, only the Base Salary set forth in Section 4.1 proratedto the date of termination on the basis of a 30-day calendar month.  Grounds for the Company to terminate thisAgreement for “Cause” shall include only the occurrence of any of the followingevents:

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### 5.1.1                        EXECUTIVE’swillful misconduct or gross negligence in the performance of his dutieshereunder;

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### 5.1.2                        EXECUTIVE’swillful failure or refusal to perform in the usual manner at the usual timethose duties which he regularly and routinely performs in connection with thebusiness of the Company or such other duties reasonably related to the capacityin which he is employed hereunder which may be assigned to him by the Board ofDirectors of the Company, if such failure or refusal has not been substantiallycured to the satisfaction of the Board of Directors within thirty (30) daysafter written notice of such failure or refusal has been given by the Companyto EXECUTIVE.

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### 5.1.3                        EXECUTIVE’sperformance of any action when specifically and reasonably instructed not to doso by the Board of Directors of the Company;

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### 5.1.4                        EXECUTIVE’sengaging or in any manner participating in any activity which is directlycompetitive with or intentionally injurious to the Company;

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### 5.1.5                        EXECUTIVE’scommission of any fraud against the Company or use or appropriation for hispersonal use or benefit of any funds or properties of the Company notauthorized by the Board of Directors to be so used or appropriated; or

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### 5.1.6                        EXECUTIVE’sconviction of any crime involving moral turpitude.

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

 

Any notice of termination given pursuant to thisSection 5.1 shall effect termination as of the date specified in such noticeor, in the event no such date is specified, on the last day of the month inwhich such notice is delivered.

 

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

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### 5.2.1                        EXECUTIVEmay voluntarily terminate this Agreement upon no less than thirty (30) dayswritten notice of such termination submitted to the Board of Directors, and insuch event EXECUTIVE shall be entitled to receive all amounts due to himthrough the date of termination.

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## 5.3                                 ThisEmployment Agreement is a personal services contract whereby the Company isengaging the services of EXECUTIVE.  Byentering into this Agreement, the Company is relying on EXECUTIVE’s performinghis services for the Company throughout the entire term of this Agreement.

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# 6.                                       Deathor Disability During Term of Employment.

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## 6.1                                 ThisAgreement shall terminate without notice upon the date of EXECUTIVE’s death orthe date when EXECUTIVE becomes “completely disabled” as that term is definedin Section 6.4.

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## 6.2                                 Inthe event of EXECUTIVE’s death, all rights of EXECUTIVE to compensationhereunder shall automatically terminate immediately upon his death, except thatEXECUTIVE’s heirs, personal representatives or estate shall be entitled to anyunpaid portion of his salary and accrued benefits earned up to the date of hisdeath.

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

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## 6.4                                 Theterm “completely disabled” as used in this Agreement shall mean the inabilityof EXECUTIVE to perform his duties under this Agreement because he has becomepermanently disabled within the meaning of any policy of disability incomeinsurance covering Executives of the Company then in force.  In the event the Company has no policy ofdisability income insurance covering Executives of the Company in force whenEXECUTIVE becomes disabled, the term “completely disabled” shall mean theinability of EXECUTIVE to perform his normal and customary duties under thisAgreement for a total of four (4) consecutive months by reason of anyincapacity, physical or mental, which the Board of Directors of the Company,based upon medical advice or an opinion provided by a licensed physicianacceptable to the Board of Directors of the Company, determines to haveincapacitated EXECUTIVE from satisfactorily performing all of his usualservices for the Company during the foreseeable future.  The action of the Board of Directors of theCompany shall be final and binding and the date such action is taken shall bethe date of such complete disability for purposes of this Agreement, and uponsuch date this Agreement shall become null and void and of no further force andeffect.

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# 7.                                       Proprietaryand Confidential Information.

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## 7.1                                 EXECUTIVE,during the term of this Agreement, will have access to and become acquaintedwith various information of substantial value to the Company, including tradesecrets, which is generally not known in the industry, and which gives theCompany an advantage over its competitors who do not know or use it, including,but not limited to, trade secrets, research and development, sales and customerinformation, customer and prospect lists, and business and financialinformation relating to the business, products, practices, and techniques ofthe Company or its business partners or vendors (collectively, the“Confidential Information”).  EXECUTIVEagrees to regard and preserve as confidential such Confidential Informationobtained by EXECUTIVE from whatever source and will not, either duringEXECUTIVE’s employment or thereafter, publish or disclose any part of suchConfidential Information in any manner at any time, or use such ConfidentialInformation except on behalf of the Company, without the prior written consentof 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 theCompany, whether prepared by the EXECUTIVE or

 

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

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## 7.2                                 Preservationof Property.  EXECUTIVE willexercise reasonable care, consistent with good business judgment, to preservein good working order, subject to reasonable wear and tear from authorizedusage, and to prevent loss of, any equipment, instruments or accessories of theCompany in his custody for the purpose of conducting the business of theCompany.  Upon request, EXECUTIVE willpromptly surrender the same to the Company at the conclusion of his employment,or if not surrendered, EXECUTIVE will account to the Company to its reasonablesatisfaction as to the present location of all such instruments or accessoriesand the business purpose for their placement at such location.  At the conclusion of EXECUTIVE’s employmentwith the Company, he agrees to return such instruments or accessories to theCompany or to account for same to the Company’s reasonable satisfaction.

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## 7.3                                 NoInconsistent Agreements.  EXECUTIVEaffirms that he has no agreement with any other party that would preclude hiscompliance with any obligations under this Agreement.

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# 8.                                       Assignmentand Binding Effect.

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## 8.1                                 ThisAgreement shall be binding upon and inure to the benefit of EXECUTIVE andEXECUTIVE’s heirs, executors, administrators, estate, beneficiaries, and legalrepresentatives.  Neither this Agreementnor any rights or obligations under this Agreement shall be assignable byeither party without the prior express written consent of the other party.  This Agreement shall be binding upon andinure to the benefit of the Company and its successors, assigns and legalrepresentatives.

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# 9.                                       Notices.

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## 9.1                                 Allnotices or demands of any kind required or permitted to be given by the Companyor EXECUTIVE under this Agreement shall be given in writing and shall bepersonally delivered (and receipted for) or sent by facsimile (withconfirmation receipt), or sent by recognized commercial overnight courier, ormailed by certified mail, return receipt requested, postage prepaid, addressedas 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 personallydelivered or upon receipt in the event of facsimile or overnight courier, orthree (3) days after its deposit in the United States mail by certified mail asspecified above.  Either Party maychange its address for notices by giving notice to the other Party in themanner specified in this section.

 

10.                                 Choiceof Law.

 

## 10.1                           ThisAgreement is made in San Diego, California. This Agreement shall be construed and interpreted in accordance with theinternal laws of the State of California. Each of the parties hereto agree to the exclusive jurisdiction of thestate and federal courts located in the State of California for any and allactions between the parties.  Anycontroversy or claim arising out of or relating to this Agreement or the breachthereof, whether involving remedies at law or in equity, shall be adjudicatedin San Diego County, California.

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# 11.                                 Integration.

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

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# 12.                                 Waiver.

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12.1                           Noterm, covenant or condition of this Agreement or any breach thereof shall bedeemed waived, except with the written consent of the Party against whom thewaiver is claimed, and any waiver of any such term, covenant, condition orbreach shall not be deemed to be a waiver of any preceding or succeeding breachof 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 partyhereto shall constitute a waiver thereof or shall preclude any other or furtherexercise of the same or any other right, power or remedy.

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13.                                 Severability.

 

13.1                           Theunenforceability, invalidity or illegality of any provision of this Agreementshall not render any other provision of this Agreement unenforceable, invalidor illegal.

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# 14.                                 Interpretation;Construction.

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14.1                           Theheadings set forth in this Agreement are for convenience only and shall not beused in interpreting this Agreement. The Parties acknowledge that each Partyand its counsel has reviewed and revised, or had an opportunity to review andrevise, this Agreement, and the normal rule of construction to the effect thatany ambiguities are to be resolved against the drafting party shall not beemployed in the interpretation of this Agreement.

 

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# 15.                                 Attorneys’Fees.

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

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# 16.                                 Counterparts.

 

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

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# 17.                                 Representationsand Warranties.

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

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# 18.                                 Arbitration.

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Any controversy or claim arising out or relating to this Agreement, orthe breach hereof, or arising out of or relating to the rights, duties orobligations of the Company or of EXECUTIVE shall be settled by binding arbitrationconducted in San Diego County, California in accordance with, and by anarbitrator appointed pursuant to, the rules of the American ArbitrationAssociation in effect at the time, and the judgment upon the award renderedpursuant thereto shall be in writing and may be entered in any court havingjurisdiction, and all rights or remedies of the Company and of the Executive tothe contrary are hereby expressly waived. The Company shall pay the arbitration fees and the costs for sucharbitrator.

 

IN WITNESS WHEREOF, the Parties have executed thisAgreement 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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