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EXHIBIT 10.1
CLASSIC COMMUNICATIONS, INC.
EMPLOYMENT AGREEMENT
WITH J. XXXXXXX XXXXXXX
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of January 31, 1998, but is effective for all purposes as of the Commencement
Date (as hereinafter defined), by and between CLASSIC COMMUNICATIONS, INC., a
Delaware corporation, and CLASSIC CABLE, INC., a Delaware corporation (together,
the "Employer"), and J. XXXXXXX XXXXXXX, residing at 0000 Xxxxxxx Xxxx, Xxxxxx,
Xxxxx 00000 (the "Employee").
R E C I T A L S :
The Employer recognizes the important contributions that the Employee
has made to the Company as an officer and key employee, as currently evidenced
by an Employment Agreement, dated as of November 1, 1997 (the "1997 Agreement"),
between Classic Cable, Inc. and Employee.
The Employer wishes to take steps to assure that the Employer will
continue to have the Employee's services available to the Employer and its
subsidiaries, and the Employer and the Employee desire to terminate and replace
the 1997 Agreement.
In consideration for the foregoing, the mutual provisions contained
herein, and for other good and valuable consideration, the parties agree to
amend and restate in its entirety the 1997 Agreement, and agree with each other
as follows:
1. EMPLOYMENT. The Employer hereby employs the Employee, and the
Employee hereby accepts such employment, upon the terms and subject to the
conditions set forth in this Agreement.
2. TERM. The term of employment under this Agreement shall commence on
May 26, 1998 (the "Commencement Date") and shall continue through May 25, 1999,
provided, however, that beginning on May 27, 1998, and on each day thereafter,
the term of this Agreement shall be extended by one additional day, unless
either party to this Agreement gives the other written notice of termination of
employment, and further, provided, that upon a Successful Recapitalization (as
defined below), the term "May 25, 1999" above shall be amended to read "May 25,
2000".
3. COMPENSATION; REIMBURSEMENT.
(a) The Employer shall pay to the Employee as compensation for all
services rendered by the Employee during the term of this Agreement a basic
annualized salary of $200,000 per year
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(the "Basic Salary"), or such other amount as the parties may agree on from time
to time, payable in equal monthly installments or in other more frequent
installments, as determined by the Employer. The Board of Directors of the
Employer shall have the right to increase the Employee's compensation from time
to time by action of the Board of Directors. In addition, the Board of Directors
of the Employer, in its discretion, may, with respect to any year during the
term hereof, award a bonus or bonuses to the Employee in addition to the bonuses
provided for in Section 3(b). The compensation provided for in this Section 3(a)
shall be in addition to any pension or profit sharing payments set aside or
allocated for the benefit of the Employee.
(b) In addition to the Basic Salary paid pursuant to Section 3(a), the
Employer may pay as incentive compensation an annual bonus based upon the
Employee's performance, as determined each year by the Board of Directors of the
Employer.
(c) The Employer shall reimburse the Employee for all reasonable
expenses incurred by the Employee in the performance of his duties under this
Agreement; provided, however, that the Employee must furnish to the Employer an
itemized account, satisfactory to the Employer, in substantiation of such
expenditures.
(d) The Employee shall be entitled to continue the use of his current
corporate vehicle and such fringe benefits, including, but not limited to,
medical and insurance benefits, as may be provided from time to time by the
Employer to other senior officers of the Employer.
(e) As soon as possible after the effective date of this Agreement, the
Employer shall adopt a restricted stock award plan pursuant to which stock
awards will be granted for a total of 24,040 shares of the Employer's Common
Stock, or approximately 7.5 percent of the Employer's shares outstanding on the
date hereof, on a fully diluted basis. Restricted stock issued pursuant to such
awards shall be subject to a restriction that the first $38 of distributions,
whether dividends, upon liquidation, or otherwise shall be withheld by the
Employer and distributed to the other holders of Employer's Common Stock. Such
awards shall vest evenly on a monthly basis over three years (1/36 per month)
beginning on the effective date of a Successful Recapitalization (defined
below). Vesting of such awards shall accelerate upon death, disability, or a
Liquidation Event. Previous restricted stock awards made to Employee pursuant to
the Employer's 1996 Restricted Stock Award Plan shall be canceled upon issuance
of the new awards as provided herein.
(f) In addition to the compensation provided for in this Agreement, the
Employer and the Employee acknowledge that they have previously agreed to the
retention by Employer of Employee (or at Employee's direction, an entity
controlled by the Employee) to provide consulting services for which no
compensation is paid pursuant to this Agreement. Employee (or such entity) is to
receive a transaction fee of $300,000 upon a Successful Recapitalization prior
to September 1, 1998. "Successful Recapitalization" shall mean any issuance of
equity and/or debt securities by Classic Communications, Inc. and/or Classic
Cable, Inc. approved by the Board of Directors of the Employer. In addition, the
Employee (or such entity) and Xxxxxx X. Seach ("Seach") are to receive, in the
aggregate, a 1% transaction fee on the "Transaction Value" of each "Net
Additional Financing" by and all "M&A Activity" of Employer. Such 1% fee may be
allocated by Employee
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and Seach in such manner as they may agree between themselves. A "Net Additional
Financing" means any financing by the Employer or any of its subsidiaries,
whether equity or debt, to the extent that immediately subsequent to such
financing the Employer's total capitalization is greater than it was immediately
prior to such financing. "M&A Activity" means the acquisition, through the
purchase of assets, a merger, or otherwise, of cable television systems,
telephony systems, internet systems, and other communications and new media
services or products. A Net Additional Financing and M&A Activity do not include
any transaction included in or closed concurrently with the Successful
Recapitalization, the sale of securities pursuant to options or other rights
outstanding upon completion of the Successful Recapitalization, nor any
transaction deemed to be a Change of Control pursuant to Section 8(e)(ii)(B),
(C) or (D) below. It is the intent of the parties that if any transaction or
series of related transactions constitute both M&A Activity and a Net Additional
Financing, the 1% fee will not be paid on both the Net Additional Financing and
M&A Activity financed by the proceeds from the Net Additional Financing.
"Transaction Value" means (i) with respect to a Net Additional Financing", the
net amount by which the Employer's capitalization has increased, and (ii) with
respect to M&A Activity, the value of all consideration paid by the Employer or
any of its affiliated companies in the form of cash, stock, or other securities,
debt (including the assumption of debt and capital lease obligations), and other
property. The value of any securities (whether debt or equity) or other property
paid as consideration in connection with M&A Activity is determined as follows:
(i) the value of securities that are freely tradeable in an established public
market will be determined on the basis of the last closing market price prior to
the public announcement of the transaction constituting the M&A Activity; (ii)
the value of securities that are not freely tradeable or have no established
public market, or if the consideration utilized consists of property other than
securities, the value of such other property shall be the fair market value
thereof as mutually agreed upon by both parties to the transaction; and (iii) to
the extent such consideration is contingent upon the future performance of the
business purchased or sold, the Transaction Value will be calculated assuming
the financial projections are achieved.
4. DUTIES. The Employee is engaged as the Chairman of the Board and
Chief Executive Officer of the Employer and of the Employer's various
subsidiaries. The Employee shall be a member of the Boards of Directors of the
Employer and the Employer's subsidiaries. In addition, the Employee shall have
such other duties and hold such other offices as may from time to time be
reasonably assigned to him by the Board of Directors of the Employer.
5. EXTENT OF SERVICES; VACATIONS AND DAYS OFF.
(a) During the term of his employment under this Agreement, the
Employee shall devote substantially all of his time, energy and attention during
regular business hours to the benefit and business of the Employer in performing
his duties pursuant to this Agreement.
(b) The Employee shall be entitled to vacations with pay and to such
personal and sick leave with pay in accordance with the policy of the Employer
as may be established from time to time by the Employer and applied to other
senior officers of the Employer.
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6. FACILITIES. The Employer shall provide the Employee with a fully
furnished office, and the facilities of the Employer shall be generally
available to the Employee in the performance of his duties pursuant to this
Agreement; it being understood and contemplated by the parties that all
equipment, supplies and office personnel required for performance of the
Employee's duties under this Agreement shall be supplied by the Employer.
7. TERMINATION ON DEATH, ILLNESS OR INCAPACITY.
(a) If a Successful Recapitalization shall have occurred, and if the
Employee dies during the term of his employment, the Employer shall pay to the
estate of the Employee the Basic Salary that would have otherwise been paid to
Employee through the end of the term of this Agreement (provided that the term
shall cease to be extended daily pursuant to Section 2 hereof upon the death of
Employee) plus any bonus compensation earned but not yet paid up to the end of
the month in which his death occurs. The Employer shall have no additional
financial obligation under this Agreement to the Employee or his estate. After
receiving the payments provided in this subparagraph (a), the Employee and his
estate shall have no further rights under this Agreement.
(b) (i) During any period of disability, illness or incapacity during
the term of this Agreement which renders the Employee at least temporarily
unable to perform the services required under this Agreement for a period which
does not exceed one hundred and eighty (180) continuous days in any one-year
period, the Employee shall receive the compensation payable under Section 3(a)
of this Agreement plus any bonus compensation earned but not yet paid, less any
benefits received by him under any disability insurance carried by or provided
by the Employer. Upon the Employee's permanent disability (as defined below),
Employee shall continue to receive the Basic Salary that would have otherwise
been paid to Employee through the end of the term of this Agreement, provided
that the term shall cease to be extended daily pursuant to Section 2 hereof upon
the permanent disability of Employee. Notwithstanding the continuation of the
Basic Salary as set forth above, the Employee shall continue to receive any
disability benefits to which he may be entitled under any disability income
insurance which may be carried by or provided by the Employer from time to time.
(ii) The term "permanent disability" as used in this Agreement
shall mean the inability of the Employee, as determined by the Board of
Directors of the Employer, by reason of physical or mental disability to perform
the duties required of him under this Agreement for a period of one hundred and
eighty (180) days in any one-year period. Successive periods of disability,
illness or incapacity will be considered separate periods unless the later
period of disability, illness or incapacity is due to the same or related cause
and commences less than six months from the ending of the previous period of
disability. Upon such determination, the Board of Directors may terminate the
Employee's employment under this Agreement upon ten (10) days' prior written
notice. If any determination of the Board of Directors with respect to permanent
disability is disputed by the Employee, the parties hereto agree to abide by the
decision of a panel of three physicians. The Employee and the Employer shall
each appoint one member, and the third member of the panel shall be appointed by
the other two members. The Employee agrees to make himself available for and
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to submit to examinations by such physicians as may be directed by the Employer.
Failure to submit to any such examination shall constitute a breach of a
material part of this Agreement.
8. OTHER TERMINATIONS.
(a) (i) The Employee may terminate his employment hereunder upon giving
at least ninety (90) days' prior written notice to the Employer. In addition,
the Employee shall have the right to terminate his employment hereunder on the
conditions and at the times provided for in Section 8(e) of this Agreement.
(ii) If the Employee gives notice pursuant to Section 8(a) above,
the Employer shall have the right to relieve the Employee, in whole or in part,
of his duties under this Agreement (without reduction in compensation through
the termination date).
(b) The Employer may terminate Employee's employment hereunder at any
time, without prior notice.
(c) If the Employer shall terminate the employment of the Employee
without good cause (as defined below) effective on a date earlier than the
termination date provided for in Section 2, the Employee shall have the
nonforfeitable right to receive, the Basic Salary, paid monthly, that he is
entitled to for the remainder of the term of this Agreement, and the Employer
shall continue to provide him with medical insurance coverage for the remainder
of the term of this Agreement; provided that, notwithstanding such termination
of employment, the Employee's covenants set forth in Section 10 and Section 11
are intended to and shall remain in full force and effect.
(d) (i) If the employment of the Employee is terminated for good cause,
or if the Employee voluntarily terminates his employment by written notice to
the Employer under Section 8(a) of this Agreement without reliance on Section
8(e), the Employer shall pay to the Employee any compensation earned but not
paid to the Employee prior to the effective date of such termination. Under such
circumstances, such payment shall be in full and complete discharge of any and
all liabilities or obligations of the Employer to the Employee hereunder, and
the Employee shall be entitled to no further benefits under this Agreement.
(ii) "Good cause" shall include:
(1) the Employee's conviction of a criminal
offense that has a material adverse effect upon the business or reputation or
the Employer or any affiliate of the Employer;
(2) commission by the Employee of a material
breach of his duty of loyalty to the Employer or any affiliate of the Employer;
and
(3) the Employee's willful failure or refusal to
perform his assigned duties, which willful refusal has had, or if continued,
could reasonably be expected to have, a material adverse effect on the Employer
or the affiliates of the Employer or their respective businesses or
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prospects, and which willful refusal has continued after Employee has received
at least two written warnings specifically advising him or his shortcomings and
providing him with an opportunity to resume performance in accordance with his
assigned duties.
(iii) Termination of the employment of the Employee for
reasons other than those expressly specified in this Agreement as good cause
shall be deemed to be a termination of employment "without good cause".
(e) (i) If a Change in Control of the Employer (as defined below) shall
occur, then the Employee shall have, instead of the further rights described
herein, the right to terminate his employment under this Agreement immediately
and the nonforfeitable right to receive, payable in a lump sum, the Basic Salary
that he is entitled to for the unexpired term of this Agreement, and the
Employer shall continue to provide him with medical insurance coverage for the
unexpired term of this Agreement; provided that, notwithstanding such
termination of employment, the Employee's covenants set forth in Section 10 and
Section 11 are intended to and shall remain in full force and effect.
(ii) "Change in Control" means:
(A) X. Xxxxxxx Xxxxxxx, Xxxxxx X. Seach, Austin Ventures,
L.P., a Delaware limited partnership, Austin Ventures III-A, L.P., a Delaware
limited partnership, Austin Ventures III-B, L.P., a Delaware limited
partnership, BT Capital Partners, Inc., a Delaware corporation, Texas Growth
Fund, a trust fund created by the Constitution of the State of Texas, and
NationsBanc Capital Corp., a Texas corporation, cease to own at least a majority
of the issued and outstanding shares of Employer's Common Stock.
(B) there is a sale of all or substantially all of Employer's
assets, or all or substantially all of Employer's capital stock, or one or more
of its subsidiaries, in one or more transactions for cash or freely salable
securities and a subsequent liquidation of the Employer in which its
stockholders receive liquidating distributions of such proceeds of sale after
payment or provision for the valid debts and liabilities of the Employer;
(C) there is a merger or consolidation of the Employer, or one
or more of its subsidiaries, with or into one or more corporations, limited
liability companies or partnerships in which the Employer, or its subsidiaries,
as the case may be, receive cash or freely salable securities for all of its or
their assets, and a subsequent liquidation of the Employer, or one or more of
its subsidiaries, in which the stockholders of the Employer, or its
subsidiaries, as the case may be, receive liquidating distributions of such
proceeds of sale, merger or consolidation after payment or provision for the
valid debts and liabilities of the Employer, or its subsidiaries, as the case
may be; or
(D) there is a merger or consolidation of the Employer or the
majority (based on the value of assets held by the subsidiaries) of the
Employer's subsidiaries, with or into another
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corporation, limited liability company or a partnership in which the
stockholders of the Employer or its subsidiaries, as the case may be, receive
cash or marketable securities for all of their stock.
(f) The provisions of Section 8(c) and Section 8(e) are mutually
exclusive and Employee shall be entitled to payment only under one of those
Sections.
(g) The parties agree that, because there can be no exact measure of
the damage that would occur to the Employee as a result of a termination by the
Employer of the Employee's employment without good cause, the payments and
benefits paid and provided pursuant to this Agreement shall be deemed to
constitute liquidated damages and not a penalty for the Employer's termination
of the Employee's employment without good cause, and the Employer agrees that
the Employee shall not be required to mitigate his damages.
9. DISCLOSURE. The Employee agrees that during the term of his
employment by the Employer, he will disclose and disclose only to the Employer
all material ideas, methods, plans, developments or improvements known by him
which relate directly or indirectly to the business of the Employer, whether
acquired by the Employee before or during his employment by the Employer.
Nothing in this Section 9 shall be construed as requiring any such communication
where the idea, plan, method or development is lawfully protected from
disclosure as a trade secret of a third party or by any other lawful prohibition
against such communication.
10. CONFIDENTIALITY. The Employee agrees to keep in strict secrecy and
confidence any and all information the Employee assimilates or to which he has
access during his employment by the Employer and which has not been publicly
disclosed and is not a matter of common knowledge in the fields of work of the
Employer. The Employee agrees that both during and after the term of his
employment by the Employer, he will not, without the prior written consent of
the Employer, disclose any such confidential information to any third person,
partnership, joint venture, company, corporation or other organization.
11. NON-COMPETITION; NON-SOLICITATION.
The Employee hereby acknowledges that, during and solely as a result of
his employment by the Employer, he has received and shall continue to receive:
(1) special training and education with respect to the operations of a cable
television company and other related matters, and (2) access to confidential
information and business and professional contacts. In consideration of the
special and unique opportunities afforded to the Employee by the Employer as a
result of the Employee's employment, as outlined in the previous sentence, the
Employee hereby agrees as follows:
(a) During a period ending two years following the termination of his
employment under this Agreement, the Employee shall not, without the prior
written consent of the Employer, (i) directly or indirectly engage in any
business that competes with the Employer or any Affiliate of the Employer in
their conduct of the cable television business, or otherwise receive
compensation for any services rendered regarding any aspect of the cable
television business anywhere within the service area of any cable television
system operated by the Employer or any Affiliate of the
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Employer, or (ii) engage or participate, directly or indirectly, in any business
which is substantially similar to that of the Employer or any Affiliate of the
Employer, including, without limitation, serving as a consultant, administrator,
officer, director, employee, manager, landlord, lender, guarantor, or in any
similar or related capacity or otherwise receive compensation for services
rendered regarding any aspect of the cable television business anywhere within
the service area of any cable television system operated by the Employer or any
Affiliate of the Employer. The Employee acknowledges that these limited
prohibitions are reasonable as to time, geographical area and scope of
activities to be restrained and that the limited prohibitions do not impose a
greater restraint than is necessary to protect the Employer's goodwill,
proprietary information and other business interests. The mere ownership of a de
minimis amount of securities in any competitive enterprise and exercise of
rights appurtenant thereto, and participation in management of any such
enterprise or business operation other than in connection with the competitive
operation of such enterprise, are not prohibited.
(b) During his employment with the Employer and, except as may be
otherwise herein provided, for a period of two (2) years following the
termination of his employment with the Employer, regardless of the reason for
such termination, the Employee agrees he will refrain from and will not,
directly or indirectly, as an individual, partner, officer, director,
stockholder, employee, advisor, independent contractor, joint venturer,
consultant, agent, representative, salesman or otherwise (1) solicit any of the
employees of the Employer to terminate their employment or (2) accept employment
with or seek remuneration by any of the clients or customers of the Employer
with whom the Employer did business during the term of the Employee's
employment.
(c) The period of time during which the Employee is prohibited from
engaging in certain business practices pursuant to Sections 11(a) or (b) shall
be extended by any length of time during which the Employee is in breach of such
covenants.
(d) It is understood by and between the parties hereto that the
foregoing restrictive covenants set forth in Sections 11(a) through (c) are
essential elements of this Agreement, and that, but for the agreement of the
Employee to comply with such covenants, the Employer would not have agreed to
enter into this Agreement. Such covenants by the Employee shall be construed as
agreements independent of any other provision in this Agreement. The existence
of any claim or cause of action of the Employee against the Employer, whether
predicated on this Agreement, or otherwise, shall not constitute a defense to
the enforcement by the Employer of such covenants.
(e) It is agreed by the Employer and Employee that if any portion of
the covenants set forth in this Section 11 are held to be invalid, unreasonable,
arbitrary or against public policy, then such portion of such covenants shall be
considered divisible both as to time and geographical area. The Employer and
Employee agree that, if any court of competent jurisdiction determines the
specified time period or the specified geographical area applicable to this
Section 11 to be invalid, unreasonable, arbitrary or against public policy, a
lesser time period or geographical area which is determined to be reasonable,
non-arbitrary and not against public policy may be enforced against the
Employee. The Employer and the Employee agree that the foregoing covenants are
appropriate and reasonable when considered in light of the nature and extent of
the business conducted by the Employer.
(f) Notwithstanding any provision of this Section 11 to the contrary,
during the term of this Agreement, the Employee may acquire, engage in business
with, and receive compensation from any other company or business, provided,
however, that (i) in the case of an acquisition of a business operating cable
television systems, telephony systems, internet systems, or other communication
or new media services or products, Employer must have been offered the
opportunity to acquire such business on terms and conditions not less favorable
than the terms upon which Employee purchases such business; (ii) such other
company or business shall not be in competition with Employer; and (iii)
Employee shall continue to devote substantially all of his time to the business
affairs of the Employer. The Employer will be deemed to have been afforded an
opportunity to purchase a business if, at least 60 days prior to any such
acquisition by the Employee, the Employer is presented a description of such
business and a detailed description of the terms upon which such business is to
be purchased, and the Board of Directors of the Employer (i) votes not to
acquire such business pursuant to such terms, (ii) fails to make a determination
whether to acquire such business within 20 days of receipt of such description
of such business and such terms, or (iii) terminates negotiations with such
business after initially determining to negotiate to acquire such business.
12. SPECIFIC PERFORMANCE. The Employee agrees that damages at law
will be an insufficient remedy to the Employer if the Employee violates the
terms of Sections 9, 10 or 11 of this Agreement and that the Employer would
suffer irreparable damage as a result of such violation. Accordingly, it is
agreed that the Employer shall be entitled, upon application to a court of
competent jurisdiction, to obtain injunctive relief to enforce the provisions of
such Sections, which injunctive relief shall be in addition to any other rights
or remedies available to the Employer. The Employee agrees to pay to the
Employer all costs and expenses incurred by the Employer relating to the
enforcement of the terms of Sections 9, 10 or 11 of this Agreement, including
reasonable fees and disbursements of counsel (both at trial and in appellate
proceedings).
13. COMPLIANCE WITH OTHER AGREEMENTS. The Employee represents and
warrants that the execution of this Agreement by him and his performance of his
obligations hereunder will not conflict with, result in the breach of any
provision of or the termination of or constitute a default under any Agreement
to which the Employee is a party or by which the Employee is or may be bound.
14. WAIVER OF BREACH. The waiver by the Employer of a breach of any of
the provisions of this Agreement by the Employee shall not be construed as a
waiver of any subsequent breach by the Employee.
15. ASSIGNMENT. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Employer. This Agreement is a personal employment contract
and the rights, obligations and interests of the Employee hereunder may not be
sold, assigned, transferred, pledged or hypothecated.
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reasonable when considered in light of the nature and extent of the business
conducted by the Employer.
(f) Notwithstanding any provision of this Section 11 to the contrary,
during the term of this Agreement, the Employee may acquire, engage in business
with, and receive compensation from any other company or business, provided,
however, that (i) in the case of an acquisition of a business operating cable
television systems, telephony systems, internet systems, or other communication
or new media services or products, Employer must have been offered the
opportunity to acquire such business on terms and conditions not less favorable
than the terms upon which Employee purchases such business; (ii) such other
company or business shall not be in competition with Employer; and (iii)
Employee shall continue to devote substantially all of his time to the business
affairs of the Employer. The Employer will be deemed to have been afforded an
opportunity to purchase a business if, at least 60 days prior to any such
acquisition by the Employee, the Employer is presented a description of such
business and a detailed description of the terms upon which such business is to
be purchased, and the Board of Directors of the Employer (i) votes not to
acquire such business pursuant to such terms, (ii) fails to make a determination
whether to acquire such business within 20 days of receipt of such description
of such business and such terms, or (iii) terminates negotiations with such
business after initially determining to negotiate to acquire such business.
12. SPECIFIC PERFORMANCE. The Employee agrees that damages at law will
be an insufficient remedy to the Employer if the Employee violates the terms of
Sections 9, 10 or 11 of this Agreement and that the Employer would suffer
irreparable damage as a result of such violation. Accordingly, it is agreed that
the Employer shall be entitled, upon application to a court of competent
jurisdiction, to obtain injunctive relief to enforce the provisions of such
Sections, which injunctive relief shall be in addition to any other rights or
remedies available to the Employer. The Employee agrees to pay to the Employer
all costs and expenses incurred by the Employer relating to the enforcement of
the terms of Sections 9, 10 or 11 of this Agreement, including reasonable fees
and disbursements of counsel (both at trial and in appellate proceedings).
13. COMPLIANCE WITH OTHER AGREEMENTS. The Employee represents and
warrants that the execution of this Agreement by him and his performance of his
obligations hereunder will not conflict with, result in the breach of any
provision of or the termination of or constitute a default under any Agreement
to which the Employee is a party or by which the Employee is or may be bound.
14. WAIVER OF BREACH. The waiver by the Employer of a breach of any of
the provisions of this Agreement by the Employee shall not be construed as a
waiver of any subsequent breach by the Employee.
15. ASSIGNMENT. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Employer. This Agreement is a personal employment contract
and the rights, obligations and interests of the Employee hereunder may not be
sold, assigned, transferred, pledged or hypothecated.
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16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
supersedes all prior agreements and understandings, oral or written, between the
Employer (or its subsidiaries) and Employee, with respect to the subject matter
hereof, including, without limitation, the 1996 Agreement and Section D.3 of the
Amended and Restated Stockholders Agreement dated as of October 31, 1995, among
Classic Communications, Inc., the Employee, and the other stockholders of
Classic Communications, Inc., as amended, which agreement provides for severance
compensation to the Employee upon termination of his employment with Classic
Communications, Inc. This Agreement may be changed only by an agreement in
writing signed by the party against whom any waiver, change, amendment,
modification or discharge is sought.
17. CONSTRUCTION AND INTERPRETATION.
(a) This Agreement shall be governed by and construed pursuant to the
laws of the State of Texas.
(b) The headings of the various sections in this Agreement are inserted
for convenience of the parties and shall not affect the meaning, construction or
interpretation of this Agreement.
(c) Any provision of this Agreement which is determined by a court of
competent jurisdiction to be prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction. In any such case, such
determination shall not affect any other provision of this Agreement, and the
remaining provisions of this Agreement shall remain in full force and effect. If
any provision or term of this Agreement is susceptible to two or more
constructions or interpretations, one or more of which would render the
provision or term void or unenforceable, the parties agree that a construction
or interpretation which renders the term or provision valid shall be favored.
18. NOTICE. All notices which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
received if personally delivered; when transmitted if transmitted by telecopy or
similar electronic transmission method; one working day after it is sent, if
sent by recognized expedited delivery service; and five days after it is sent,
if mailed, first class mail, certified mail, return receipt requested, with
postage prepaid. In each case notice shall be sent:
To the Employer: Classic Communications, Inc.
Classic Cable, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
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With a copy to: Xxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
To the Employee at his address herein above written.
19. VENUE; PROCESS. The parties to this Agreement agree that
jurisdiction and venue in any action brought pursuant to this Agreement to
enforce its terms or otherwise with respect to the relationships between the
parties shall properly lie in the District Court of the State of Texas in and
for Xxxxxx County. Such jurisdiction and venue are merely permissive;
jurisdiction and venue shall also continue to lie in any court where
jurisdiction and venue would otherwise be proper. The parties agree that they
will not object that any action commenced in the foregoing jurisdiction is
commenced in a forum non conveniens. The parties further agree that the mailing
by certified or registered mail, return receipt requested, of any process
required by any such court shall constitute valid and lawful service of process
against them, without the necessity for service by any other means provided by
statute or rule of court.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
CLASSIC COMMUNICATIONS, INC.
By: /s/ XXXXXX X. SEACH
-----------------------------------
Xxxxxx X. Seach
President
CLASSIC CABLE, INC.
By: /s/ XXXXXX X. SEACH
-----------------------------------
Xxxxxx X. Seach
President
By: /s/ J. XXXXXXX XXXXXXX
-----------------------------------
J. XXXXXXX XXXXXXX
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