EXHIBIT 10(a)
AGREEMENT
THIS AGREEMENT, dated as of January 1, 1996 (the "Effective Date")
is made by and between Xxxxxx X. XxXxxxx, Xx., having an address at 00 Xxxxx
Xxx Xxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxxxx 00000 ("XxXxxxx"), and XXXXXXX RADIO
CORP., a Delaware corporation having an address at Nine Xxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Company").
WITNESSETH
WHEREAS, XxXxxxx and the Company entered into an Employment Agreement
(the "Employment Agreement") dated as of August 15, 1992; and
WHEREAS, XxXxxxx has performed services pursuant to the Employment
Agreement and the Company has compensated XxXxxxx for such services; and
WHEREAS, XxXxxxx and the Company desire to modify the relationship
contemplated by the Employment Agreement in accordance with the terms hereof;
and
WHEREAS, the parties wish to set forth the terms and conditions of the
relationship between XxXxxxx and the Company commencing as of the Effective
Date and continuing thereafter for a period of twelve months until
December 31, 1996 (the "Term"); and
WHEREAS, the parities desire to protect the Company's proprietary and
confidential business information and other lawful business interests;
NOW THEREFORE, in consideration of the mutual obligations set forth
herein, receipt of which is hereby acknowledged, the parties agree as follows:
1. Definitions.
The following capitalized words and phrases shall have the meanings
specified when used in this Agreement, unless the context clearly indicates
otherwise:
1.1. "Agreement" means this Agreement, as it may from time to
time be amended or modified.
1.2. "Company" shall mean Xxxxxxx Radio Corp. and any of its
divisions, subsidiaries, parents, affiliates, successors-in-interests,
predecessors-in-interests, benefit plans or assigns thereof, and any
officer, director, managing agent, employee, administrator, fiduciary, a
gent or other representative of any of the foregoing.
2. Termination of Employment Agreement and Agreement to Provide Consulting
Services.
2.1. The Employment Agreement and employment of XxXxxxx as an
officer of the Company and any other employment XxXxxxx has or had with the
Company shall be and hereby is terminated by mutual consent as of the
Effective Date and he shall be paid his salary and receive all benefits
under the Employment Agreement up to December 31, 1995. All duties and
obligations of XxXxxxx under the Employment Agreement and in respect of any
such employment are ended as of the Effective Date, and all duties and
obligations of the Company to XxXxxxx in respect thereof are terminated at
such time, except as otherwise provided herein.
2.2. XxXxxxx hereby resigns, without any further action required,
from all offices of the Company, effective as of the Effective Date. XxXxxxx
also waives any claim or right to reinstatement. The Company hereby accepts
such resignation from such offices. Subject to the provisions of Section
9.3, the Company acknowledges that upon the execution of this Agreement by
XxXxxxx, all of XxXxxxx'x affirmative obligations under the Employment
Agreement will have been performed in full.
2.3. XxXxxxx agrees to provide to the Company consulting services
during the Term from time to time at the direct request of the Company's
President, Chief Executive Officer, Chief Financial Officer or General
Counsel (or person substantially performing such functions), provided that
the furnishing of such services does not unduly interfere with the performance
by XxXxxxx with any duties required of him by his employer or by self-
employment. Such matters shall include, to the extent necessary, but not be
limited to: (a) the Cineral litigation, (b) the Otake and related persons
litigation and (c) various trademark and license matters.
3. Payments to XxXxxxx.
3.1. In consideration of whatever consulting services are referred
to in Section 2.3 and the other consideration provided herein, the Company
agrees to pay XxXxxxx in the ordinary course of business the aggregate sum of
Two Hundred Ten Thousand and no/100 dollars ($210,000) to be paid in equal
bi-weekly installments for a period of twelve (12) months commencing on the
Effective Date in accordance with the Company's present payroll practice (the
"Consulting Payments"). In the event that the Company's present payroll policy
is changed, the bi-weekly installments shall be changed to conform with such
payroll policy for any Consulting Payments remaining due during the Term.
3.2. The Company may deduct or withhold from any payment required to
be made to XxXxxxx hereunder an amount as may be necessary to satisfy the
Company's obligation with respect to any applicable income and employment tax
withholding under applicable federal and state laws.
4. [INTENTIONALLY OMITTED]
5. Vacation Benefits.
5.1. The parties agree that any accrual of vacation benefits by
XxXxxxx shall and does permanently cease as of the Effective Date.
5.2 XxXxxxx acknowledges that he has used and the Company has fully
compensated him for any accrued vacation benefits and no payment for vacation
benefits is due or owing or will be due and owing hereunder.
6. Pension Benefits.
XxXxxxx shall be entitled to continue to participate in and remain
eligible for the Company's Employee Savings Plan during the Term provided
that the Company shall have no obligation whatsoever to pay or otherwise
provide for any contributions whatsoever. Nothing herein is intended or
should be construed as changing, rescinding or modifying any vested rights
to pension benefits or the Company's Employee Savings Plan benefits XxXxxxx
may have under any such pension benefits or Employee Savings Plan as of the
Effective Date.
7. Health, Life, Disability and Liability Insurance Plans.
7.1. XxXxxxx understands and agrees that the Company will continue
at its expense his existing coverage under the Company's health, dental, life
and disability insurance plans during the Term to the extent legally
permissible under the Company's health, life and disability insurance plans
and applicable federal and state law; provided that XxXxxxx fulfill such
requirements as may be reasonably requested by the Company's insurers.
7.2. If XxXxxxx secures full-time employment before the completion
of the Term and becomes covered under any other employer's plan to at least
the same extent as the existing health, life and disability coverage provided
to XxXxxxx by the Company, he understands that coverage under the company's
health, life and disability insurance plans shall end upon the date of such
coverage by the new employer's plan.
7.3. To the extent permissible by the Company's insurers, and
applicable federal and state law, if XxXxxxx'x health insurance coverage
terminates solely because of a change in insurance carrier, XxXxxxx shall
be accorded the right to participate at the Company's expense in and receive
benefits under and in accordance with the provisions of any Company plan
relating to medical insurance or reimbursement to the extent such plan is in
existence from time to time for the benefit of executives of the Company.
XxXxxxx shall then be entitled to participate in such medical plan to the
same extent as persons holding comparable positions in the Company from time
to time. The Company may discontinue any such plan at any time or times,
without any liability to XxXxxxx. The parties agree that under no
circumstances shall the Company be required to make any payments other than
insurance premiums.
7.4. For purposes of COBRA, 29 U.S.C. Section 1161-1168, XxXxxxx'x
termination is denominated as of December 31, 1996.
7.5. The Company shall, at its sole expense, (i) continue the
existing legal malpractice insurance coverage and (ii) pay for the benefit
of XxXxxxx all sums which are or may be construed as deductible amounts not
otherwise payable by the insurer pursuant to the coverage described in
7.5(i) above each such obligation to be honored in accordance with the
terms of and for the period required under Section 4 of the Employment
Agreement.
8. Full Satisfaction.
XxXxxxx agrees that the payments and credits described in this
Agreement shall be in full satisfaction of any and all claims against the
Company for payment of any nature whatsoever, including but not limited to
all forms of compensation, benefits, stock options (other than the options to
purchase 66,667 shares of the Company's Common Stock which have vested pursuant
to the terms of the applicable plan; the remaining options to purchase 133,333
shares of the Company's Common Stock having been cancelled as of the Effective
Date), severance pay, salary, bonuses and perquisites that XxXxxxx has or may
have against the Company, whether matured or unmatured and whether known or
unknown, arising out of the Employment Agreement, XxXxxxx'x employment
relationship, status as an officer, the termination of XxXxxxx'x status as an
officer of the Company or any other agreement or promise, whether oral or
written, which XxXxxxx may have with the Company. The Company shall request
the Committee administering the Xxxxxxx Radio Corp.Stock Compensation Program
to extend the applicable exercise date from 90 days to six months pursuant
to Article 13 of such program
9. Releases.
9.1. Except as set forth below, in consideration of the provisions
of this Agreement and for other good and sufficient consideration, receipt of
which is hereby acknowledged, XxXxxxx hereby fully and forever releases and
discharges the Company from all actions, causes of actions, suits, covenants,
contracts, controversies, agreements, promises, claims, and demands in law or
equity (regardless of whether or not know at present), which XxXxxxx ever
had, now has, or hereafter may have against the Company, including, but not
limited to (a) claims related to the payment of compensation and benefits,
(b) claims for breach of the Employment Agreement, (c) claims for wrongful
discharge, (d) rights and claims alleging a violation of the Age Discrimination
in Employment Act of 1967, as amended 29 U.S.C. Section 621 et seq., as of the
date this Agreement is executed, (e) claims pursuant to any federal, state or
local law regarding discrimination based on race, color, creed, age, sex,
religion, marital status, affectation or sexual orientation, disability ,
atypical hereditary or cellular blood traits, ancestry, national origin, draft
liability or veteran status, (f) claims for alleged violation of any other
local, state, or federal law, regulations, ordinances or public policy having
any bearing whatsoever on the terms or conditions of XxXxxxx'x employment with
the Company or the termination of such employment, (g) claims pursuant to
common law under tort, contract or any other theories now or hereafter
recognized, (h) claims related in any way to the stock options of the Company
and (i) any other claims arising directly or indirectly by any reason
whatsoever out of XxXxxxx'x employment relationship or the termination of
XxXxxxx'x employment relationship with the Company.
9.2. In consideration of the provisions of this Agreement and
for other good and sufficient consideration, receipt of which is hereby
acknowledged, the Company hereby fully and forever releases and discharges
XxXxxxx from all actions, causes of actions, suits, covenants, contracts,
controversies, agreements, promises, claims, and demands in law or equity
(regardless of whether or not know at present), which the Company ever had,
now has, or, excluding breaches of this Agreement, hereafter may have against
XxXxxxx.
9.3. Notwithstanding the provision of Section 9.1, any claims by
XxXxxxx (a) for indemnification, contribution, advance, reimbursement or
defense under any provisions of the Company's and its successors' and/or
assigns' charter, By-laws, and any applicable policy, or applicable law,
(b) arising out of or relating to events, acts or omissions under the Company's
director and officer liability insurance coverage and (c) relating solely to
events arising subsequent to the effective date of this Agreement or from any
breaches of this Agreement shall not be released.
9.4. XxXxxxx understands that there are various state and federal
laws that prohibit employment discrimination on the basis of age, sex, race,
color, national origin, religion, disability and other categories, and that
these laws are enforced by the courts and various government agencies. XxXxxxx
intends to give up any rights he may have under these laws or any other laws
with respect to his employment with the Company, or the termination of that
employment.
10. Protection of Confidential Information.
10.1 Except as otherwise provided by law or judicial order and
notwithstanding the fact that the parties hereby agree to terminate effective
January 1, 1996 the non-compete covenant in paragraph 6(c) of the Employment
Agreement and of the application to XxXxxxx of any other Company policies
regarding non-competition, and subject to the attorney/client and work product
privileges applicable to XxXxxxx'x services to the Company, XxXxxxx whether
directly or indirectly, either alone or jointly with any person, firm or
corporation and whether as a principal, servant or agent, shall not at any
time make, use for his own purposes or divulge to any person, firm or
corporation any information or fact (excluding information which is generally
available to the public or which the Company has previously made publicly
available and excluding such information as is required to be divulged to a
government agency or pursuant to lawful process) relating to the management,
business (including prospective business), finances, inventions, technologies
or technical processes of the Company or its customers, or the terms of any
contracts between the Company and any of its customers, which have come to the
knowledge of XxXxxxx during his employment by the Company which is
confidential, provided that nothing in this paragraph shall prevent XxXxxxx
from using his own skill in business in which he may lawfully be engaged.
XxXxxxx agrees that he will not during the Term accept employment with or
furnish services for, directly or indirectly, Otake Corp., Orion Sales Corp.
Grand Prix or Sanyo Corp. or any of their respective affiliates.
10.2 Concurrently with the execution of this Agreement, XxXxxxx
represents that he has surrendered or will surrender to the Company any and
all Confidential Material.
10.3 "Confidential Material" shall mean all information of any kind
or nature pertaining to the Company which is not generally available to the
public, including, but not limited to, attorney/client and work product
privileged information, information relating to the Company's agreements,
proprietary rights, research, developments, inventions, know-how, trade
secrets, patents, patent applications, environmental matters, documents of
any kind and manuals, technical advances, commercial arrangements, manufacture,
engineering, products, accounting, sales, strategies, tax returns, financial
records and statement, marketing, customers or customers lists, dealings with
government agencies, and any information of a like nature furnished to or
obtained by XxXxxxx from the Company during his employment by the Company
relating to activities of third parities which said third party or parties
have transmitted to the Company under any agreement or arrangement to hold
the same secret or confidential and any and all documents, memoranda, records,
files, letters, specifications or other papers, computer disks or other
affairs of the Company.
10.4 The Company shall cause to be returned to XxXxxxx all of
XxXxxxx'x personal property that is in the possession of the Company
and XxXxxxx shall cause to be returned to the Company all of the Company's
equipment that is in the possession of XxXxxxx.
10.5 XxXxxxx hereby covenants with the Company that he will not,
for any reason whatsoever and whether directly or indirectly, either alone
of jointly with any person, firm or corporation and whether as principal,
servant or agent in any way make any negative comment about the Company to
third parties or disparage its business capabilities, products, plans or
management to any supplier, vendor, contractor, creditor, shareholder, media,
subcontractor, competitor or customer of the Company
.
10.6 The Company hereby covenants with XxXxxxx that its executive
officers, board members and public relations firm will not, for any reasons
whatsoever and whether directly or indirectly, either alone or jointly with
any person, firm or corporation and whether as principal, servant or agent
in any way make any negative comment about XxXxxxx to third parties.
11. Confidentiality.
11.1. Except as provided in Sections 11.2 and 11.3 hereof and as
otherwise provided by law or judicial order, the parties agree that the terms
and conditions of this Agreement shall remain confidential between them and
shall not be disclosed to any other person.
11.2. Notwithstanding the provision of Section 11.1, nothing in this
Agreement shall prevent XxXxxxx from discussing this Agreement in confidence
with his attorneys, financial advisers, or members of his immediate family or
with any federal or sate taxing authority; provided, however, that before
disclosing any such information to any such person, XxXxxxx shall advise such
person that the terms of the Agreement are confidential.
11.3. Notwithstanding the provision of Section 11.1, the Company
shall be entitled to make any disclosure which it deems necessary in order
to comply with any applicable securities statutes and regulations and
securities exchange rules.
12. Miscellaneous.
12.1. This Agreement contains the entire Agreement of the parties
with respect to its subject matter hereof and supersedes all prior negotiations
and agreements among them.
12.2. This Agreement may be modified, altered or terminated only upon
the express written consent of the parties hereto, which consent must be
signed by the parities.
12.3. In the event a court of competent jurisdiction determines
there exists any default or breach by the Company or XxXxxxx of this
Agreement, (i) INTENTIONALLY OMITTED and (ii) the release under Section
9 by the non-breaching party shall be void and he or it shall be free to
pursue any claims which existed piror to execution of this Agreement.
12.4. The parties mutually warrant that they: (a) have negotiated and
consulted with counsel with respect to the terms hereof, (b) have read this
Agreement, (c) understand all the terms and conditions hereof, (d) are not
incompetent or had a guardian, conservator or trustee appointed for them and
(e) entered into this Agreement of their own free will and volition.
12.5. The waiver of any party of a breach of any provision hereof
shall not operate or be construed as a waiver of any subsequent breach by
any party.
12.6. The article headings contained herein are for convenience
only and shall not in any way affect the interpretation, construction or
enforceability of any provision of this Agreement.
12.7. This Agreement shall be construed and enforced in accordance
with the laws of the State of New Jersey, exclusive any choice of law rules.
12.8. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which together shall constitute one
and the same Agreement.
12.9. This Agreement shall not be assignable by XxXxxxx, but it
shall be binding upon, and shall inure to the benefit of his heirs, executors,
administrator, devises and legal representatives.
12.10. XxXxxxx acknowledges and agrees that he is entitled to at
least twenty-one days within which to consider this Agreement and the Company
advised him to consult an attorney prior to executing this Agreement.
12.11. XxXxxxx'x waiver of claims, if any, alleging a violation for
the Age Discrimination in Employment Act of 1967, as amended, shall become
effective and enforceable on the eighth day after execution by XxXxxxx. The
parities understand and agree that XxXxxxx may revoke his waiver of claims
under the Age Discrimination in Employment Act of 1967, as amended, after
having executed this Agreement by so advising the Company in writing, provided
such writing is received by the Company at the address listed below for notices
to the Company no later than 11:59 p.m. on the seventh day after XxXxxxx'x
execution of this Agreement.
12.12. All notices, requests, demands, and other communications
hereunder shall be sent to the following by certified mail, return receipt
requested.
Notices to XxXxxxx:
Xx. Xxxxxx X. XxXxxxx, Xx.
00 Xxxxx Xxx Xxxxx Xxxx
Xxxxx Xxxxx, Xxx Xxxxxx 00000
Notices to the Company:
Xx. Xxxxxx X. Xxxxx
President
Xxxxxxx Radio Corp.
Nine Xxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Any party may designate other addresses and recipients at any time by
sending written notice of such changes to the other party hereto.
12.13. XXXXXXX ACKNOWLEDGES AND AGREES THAT HE HAS READ AND FULLY
UNDERSTANDS THE MEANING OF EACH PROVISION OF THIS AGREEMENT, INCLUDING
SPECIFICALLY THE RELEASES CONTAINED HEREIN. XXXXXXX FURTHER ACKNOWLEDGES
AND AGREES THAT HE HAS BEEN ADVISED IN WRITING BY THE COMPANY TO CONSULT
COUNSEL, THAT HE HAS HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY CONCERNING
THIS AGREEMENT AND THAT HE FREELY AND VOLUNTARILY ENTERS INTO IT.
12.14. XxXxxxx irrevocably consents that any legal action or
proceeding against him or any of his property, or brought by him, with respect
to this Agreement may only be brought in any state or federal court located
in the County of Xxxxxx, State of New Jersey, as the Company may elect, and by
execution and delivery of this Agreement XxXxxxx hereby submits to and accepts
with regard to any such action or proceeding for himself and in respect of
his property, generally and unconditionally, the exclusive jurisdiction of the
aforesaid courts. XxXxxxx hereby irrevocably waives to the fullest extent
permitted by law, any objection which he may now or hereafter have to the
laying of the venue of any suit, action or proceeding arising out of or
relating to this Agreement brought in a state or federal court located in
the County of Xxxxxx and hereby further irrevocably waives any claim that
any such suit, action or proceeding brought in a state or federal court
located in the County of Xxxxxx has been brought in an inconvenient forum.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
WITNESS:
/s/ Xxxxxx Xxxxxx /s/ Xxxxxx X. XxXxxxx, Xx.
Xxxxxx Xxxxxx Xxxxxx X. XxXxxxx, Xx.
ATTEST: XXXXXXX RADIO CORP.
/s/ Xxxxxx X. XxXxxxx, Xx. /s/ Xxxxxxxx X. Xxxxxx
Xxxxxx X. XxXxxxx, Xx. Xxxxxxxx X. Xxxxxx, Chief
Executive Officer
ACKNOWLEDGMENT
STATE OF NEW JERSEY )
) ss:
COUNTY OF XXXXXX )
On January 12, 1996, before me, Xxxxxxxx X. Xxxx, personally came
Xxxxxxxx X. Xxxxxx, Chief Executive Officer of XXXXXXX RADIO CORP.
(the "Company"), to me known, and known to me to hold the position of
Chief Executive Officer with the Company, and who executed the foregoing
Agreement on behalf of the Company, and duly acknowledged to me that he
executed the same and was authorized to do so on behalf of the Company.
/s/ Xxxxxxxx X. Xxxx
Xxxxxxxx X. Xxxx
Notary Public
ACKNOWLEDGMENT
STATE OF NEW JERSEY )
)ss:
COUNTY OF XXXXXX )
On January 12, 1996, before me, Xxxxxxxx X. Xxxx, personally
came Xxxxxx X. XxXxxxx, Xx., to me known, and known to me to be the
individual described herein, and who executed the foregoing Agreement and
duly acknowledged to me that he voluntarily executed the same.
/s/ Xxxxxxxx X. Xxxx
Xxxxxxxx X. Xxxx
Notary Public
