Exhibit 10.7
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of April 1, 2000, between INTEREP NATIONAL RADIO SALES,
INC., a New York corporation (the "Company"), and XXXX X. GUILD ("Guild").
W I T N E S S E T H:
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WHEREAS, the Company and Guild are parties to an Employment Agreement,
dated as of January 1, 1991, and amended as of June 29, 1998 (as so amended and
restated, the "Original Agreement"); and
WHEREAS, the Company and Guild wish to amend and restate the Original
Agreement in order to extend its term and to make certain other changes;
NOW, THEREFORE, in consideration of the mutual agreements set forth below,
the parties agree that the Original Agreement is amended and restated to read as
follows:
1. Employment
(a) Term. Subject to the terms and conditions of this Agreement, the
Company employs Guild, and Guild agrees to serve, as President-Marketing
Division of the Company for a term commencing on the date hereof and ending on
March 31, 2005, unless extended as provided in the following sentence (the
"Term"). On April 1, 2001 and each following April 1 during the Term, the Term
shall automatically be extended for one additional year, unless the Company or
Guild notifies the other on or before the immediately preceding March 1 that the
Term is not to be so extended. For example, (i) if no such notice is given on
March 1, 2001, the Term would automatically be extended by one year and would
end on March 31, 2006 (unless subsequently extended) or (ii) if such notice is
given by the Company or Guild on March 1, 2001, the Term would end on March 31,
2005 and the Consulting Period (as defined in Section 1(c)) would begin on the
following day.
(b) Duties. Guild shall report directly to Xxxxx X. Guild, Chief Executive
Officer of the Company. The Company shall use its best efforts to cause Guild to
be elected a director of the Company at all times during the Term. Guild shall
perform his duties to the best of his ability and shall devote substantially all
of his business time, energies and skills to such duties, subject to the
understanding that he has various investments which may, from time to time,
require his attention, but which shall not interfere with the performance of his
duties to the Company.
(c) Consulting. If the Company gives Guild notice pursuant to Section 1(a)
that the Term of this Agreement is not to be extended, the Company shall retain
Guild as a consultant for a period of two years beginning on the day after the
last day of the Term (the "Consulting Period"). During the Consulting Period,
Guild shall provide the Company with such advice, assistance and services
regarding any aspect of the Company's business and affairs as the Company and
Guild shall from time to time agree. During the Consulting Period, the Company
shall pay
Guild annual consulting fees in an amount equal to Guild's base salary under
Section 2(a) in effect at the end of the Term, the Company shall provide him
with the health, hospitalization and welfare benefits referred to in Section 3,
and the provisions of Section 4 (other than those respecting vacations) shall
apply. The Company shall pay such consulting fees to Guild in equal semi-monthly
installments or, if Guild requests the Company in writing at any time, the
Company shall pay to Guild an amount equal to the total consulting fees payable
during the Consulting Period (or then remaining balance thereof) discounted at
the discount rate (as defined in Section 7(b)) to present value as of the date
of such request. Any such accelerated payment shall not relieve Guild of his
obligation to perform the consulting services contemplated by this Section 1(c).
2. Base Salary and Incentive Bonus. During the Term, the Company shall pay
Guild a base salary of not less than $360,000 per year ("base salary"), payable
in equal semi-monthly installments. In addition, Guild shall be entitled to
receive a minimum incentive bonus of $90,000 (the "Incentive Bonus") in respect
of each year during the Term, if the Company and/or Guild achieves the
performance goals for that year which are established by the Company's Chief
Executive Officer and Guild prior to the beginning of that year. The Incentive
Bonus for each year shall be payable in quarterly installments, based on the
Company's best estimates of actual performance against performance goals. The
foregoing shall not preclude Guild from receiving salary increases or awards of
bonuses, incentive or other types of additional compensation (in addition to the
Incentive Bonus) which the Company in its sole discretion may wish to pay.
3. Benefit Plans. Guild shall be entitled to participate in all employee
fringe benefit plans and policies that the Company may make available to, or
have in effect for, its senior executives from time to time, including, without
limitation, health, hospitalization and welfare benefits, pension,
profit-sharing and similar plans, stock option, incentive compensation, savings,
investment, retirement and supplemental benefit plans, in each case subject to
the eligibility and other provisions of any such plan or policy. Nothing in this
Section 3 shall require the Company to institute or make available to Guild any
particular benefit plan or policy.
4. Expenses; Vacations; Facilities. Guild shall be entitled to incur on
behalf of the Company reasonable and necessary expenses in connection with the
performance of his duties and in accordance with the customary practice of the
Company. The Company shall reimburse Guild for any such expenses paid by him.
Whenever Guild is required to travel in connection with his duties, he may
arrange for his wife to accompany him and for the Company to reimburse him for
the related cost. During each 12-month period during the Term, Guild shall be
entitled to paid vacation in accordance with his status and the policies of the
Company regarding paid vacation time for its senior executives. During the Term
and any Consulting Period, the Company shall provide Guild with all reasonable
secretarial assistance and office and technical facilities necessary for the
performance of his duties hereunder and suitable to his position.
5. Temporary Disability. If, during the Term, Guild becomes disabled,
through illness or otherwise, from performing his duties hereunder, he shall be
entitled to a leave of absence for up to six consecutive months. The Company
shall continue to pay Guild's compensation during any such leave of absence. If
such disability continues beyond such period, it shall be deemed to be a
permanent disability subject to the provisions of Sections 6(b) and 7(a).
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6. Rights of Termination.
(a) Termination for Cause by the Company. The Company shall have the right
to terminate Guild's employment forthwith for cause, limited to (i) an action by
Guild involving willful malfeasance or gross negligence or (ii) Guild's
incapacity to perform the duties called for under this Agreement by reason of
the abuse of alcohol or drugs.
(b) Permanent Disability; Death. If Guild is disabled through illness or
otherwise from performing his duties hereunder for a period in excess of six
consecutive months, so that such disability is deemed to be a permanent
disability the Company shall have the option, exercisable on written notice to
Guild and only so long as such disability continues, to terminate his employment
under this Agreement. Any such termination shall be effective as of the end of
the month in which such written notice is given to Guild. If Guild dies, the
Term shall end on the date of his death.
(c) Termination for Cause by Guild. Guild shall have the right, exercisable
within six months after the occurrence of any of the following events, to
terminate his employment under this Agreement on delivery of 30 days' written
notice thereof to the Company:
(i) if the Company violates this Agreement in any material respect,
and such violation is not cured within 15 days of Guild's written notice
thereof to the Company;
(ii) if Guild is not re-elected or re-appointed to the office of
President-Marketing Division, other than by his own choice, by reason of
his permanent disability, or is removed from such office, other than for
reasons justifying termination by the Company under Section 6(a);
(iii) if Guild ceases to be a member of the Board of Directors of the
Company, other than by his own choice, by reason of his permanent
disability or for reasons justifying termination under Section 6(a); or
(iv) in the event of a change of control of the Company as a result of
(A) a contest for the control of the Company, (B) the consolidation of the
Company with, or merger of the Company into, any other corporation, (C) the
acquisition of the Company, of a controlling interest in the Company or of
all or substantially all of the assets of the Company by another person,
(D) the cessation of the corporate existence of the Company or failure to
continue such existence in full force and effect as a result of any cir
cumstances or (E) any other circumstances which are deemed to constitute a
change of control under the terms of any stock option granted by the
Company to Guild.
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7. Effects of Termination.
(a) Termination for Permanent Disability. If Guild's employment terminates
under Section 6(b) on account of Guild's permanent disability, the Company shall
continue to pay (or cause to be paid) to Guild, for the remainder of the Term
(the "Remainder Term"), in equal semi-monthly installments, 75% of his then
current salary, plus 75% of Guild's then current Incentive Bonus, whether or not
the related performance goals have been achieved, less the aggregate amount of
all income disability benefits which he may receive or to which he may be
entitled for such period by reason of (i) any group health insurance plan which
is intended to function as a salary replacement plan, (ii) any applicable
compulsory state disability law, (iii) the Federal Social Security Act, (iv) any
applicable workmen's compensation law or similar law and (v) any disability plan
to which the Company or any of its affiliates has contributed or for which it
has made payroll deductions, other than those which reimburse for actual medical
expenses.
(b) Payment on Termination by Reason of Death or by Guild for Cause. If
Guild dies during the Term or the Remainder Term, or if Guild elects to
terminate his employment hereunder pursuant to Section 6(c), (i) the Company
shall continue to pay (or cause to be paid) to Guild or his designated
beneficiary (or, if no beneficiary has been designated, his estate), for the
Remainder Term, in equal semi-monthly installments, the base salary that would
have been payable to Guild during the Remainder Term pursuant to Section 2(a)
had Guild's employment not been terminated, plus 75% of Guild's then current
Incentive Bonus, whether or not the related performance goals have been
achieved, and (ii) after the Remainder Term, if Guild elected to terminate his
employment hereunder pursuant to Section 6(c), the Company shall also pay during
the Consulting Period the consulting fees that would have been payable during
the Consulting Period as if the Company had elected not to extend the Term
pursuant to Section 1(a). If, however, Guild or his designated beneficiary or
estate so requests the Company in writing at any time after Guild's election to
terminate his employment pursuant to Section 6(c) or Guild's death, the Company
shall pay to him or his designated beneficiary (or, if no beneficiary has been
designated, his estate), an amount equal to the total base salary and Incentive
Bonus and, if applicable, consulting fees, otherwise owing pursuant to the
preceding sentence, discounted at the Discount Rate (as defined below) to its
present value as of the date of such request (the "Notice Date"). The Company
shall pay such amount in a lump sum not later than 30 days after the Notice
Date. "Discount Rate" means the yield to maturity, as determined on the Notice
Date, on U.S. Treasury obligations having an original maturity comparable to the
Remainder Term plus, if applicable, the Consulting Period. Guild may waive his
right to receive all or part of any payment otherwise owing pursuant to this
Section 7(b) by written notice to the Company and may also elect to receive a
portion of any payments owing to him pursuant to this Section 7(b) on the
installment basis referred to in the first sentence of this Section 7(b) and a
portion on the lump sum basis referred to in the second sentence hereof.
(c) General. Except as otherwise set forth in Sections 7(a) and 7(b),
Guild's right to receive the base salary provided for in Section 2(a) shall
cease on the effective date of any termination of his employment under Section
6, nor shall he have any right to any Incentive Bonus in respect of the year in
which termination occurs, unless it occurs as of December 31 of such year.
Termination of Guild's employment under any provision of this Agreement shall
not affect the right
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of Guild or his designated beneficiary or estate to receive benefits accrued to
him through the date of such termination under this Agreement or any employee
benefit plan of the Company in which he is then participating; provided,
however, that the rights of Guild or his designated beneficiary or estate under
any such plan and any termination of his participation thereunder shall be
governed by the terms of such plans as then in effect. All payments and rights
under Sections 7 (a) and 7(b) shall be in lieu of any other amounts Guild (or
his estate) might be entitled to receive under this Agreement for any breach
hereof by the Company. Payments under Sections 7(a) or 7(b) shall not affect
Guild's right to receive any severance payments or other benefits to which he is
entitled in accordance with the Company's policy. At Guild's request at any time
prior to the termination of his employment hereunder, the Company shall provide
him with such reasonable security as Guild shall reasonably request to secure
payment of all amounts payable to him after such termination, such as a bank
letter of credit, bond or security interest in a portion of the Company's
assets.
8. Confidentiality. All information possessed by Guild relative to the
activities of the Company which is of a secret or confidential nature, including
business plans, sales or marketing data, financial data, developments and
administrative procedures, is the property of the Company. Guild shall not,
during the Term and any Remainder Term, disclose any such information to others
not in the employ of the Company or its subsidiaries or use it for his benefit
or that of any third party. Nothing herein shall prevent Guild, subsequent to
the termination of his employment hereunder, from using and availing himself of
his general skill, knowledge and experience, including that pertaining to or
derived from the non-confidential aspects of the business of the Company.
9. Non-Competition. During the Term , any Remainder Term with respect to
which he is receiving payment hereunder and any Consulting Period, Guild shall
not, anywhere in the United States of America, without the consent of the Board
of Directors of the Company:
(a) engage in any national radio sales representation business on behalf of
any party other than the Company and its subsidiaries;
(b) solicit business from or represent any client of the Company or any of
its subsidiaries in connection with national radio sales representation; or
(c) offer employment to or hire any employee of the Company or any of its
subsidiaries.
10. Notices. Any notice given by either party to the other shall be in
writing and delivered by personal delivery or registered or certified mail,
return receipt requested, addressed to Guild at his address of record with the
Company, or to the Company at is principal office, as the case may be, or, in
either case, at such other place as Guild or the Company may from time to time
designate in writing. The date of personal delivery or the date of mailing any
such notice shall be deemed to be the date of delivery thereof.
11. Prior Agreements; Amendments. This Agreement constitutes the entire
agreement between the Company and Guild with regard to its subject matter and
merges and supersedes any employment understandings or agreements which may have
been previously made
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between the Company and Guild, including, without limitation, the Original
Agreement. This Agreement may not be changed, waived, discharged or terminated
orally, but only by an instrument in writing, signed by the party against which
enforcement of such change, waiver, discharge or termination is sought.
12. Parties in Interest. Neither this Agreement nor any rights or
obligations hereunder may be assigned by one party without the consent of the
other, except that this Agreement (a) shall be binding on and inure to the
benefit of any successor of the Company whether by merger, consolidation, sale
of assets or otherwise, and references to the Company shall be deemed to include
any such successor, and (b) to the extent provided herein, shall be binding on
and inure to the benefit of the estate, heirs, designated beneficiaries or
personal representatives, if any, of Guild, and references to Guild shall be
deemed to include such estate, heirs, designated beneficiaries or personal
representatives. Any designation by Guild of a beneficiary to receive payments
hereunder in the event of Guild's death or permanent disability, and any change
in such designation, shall be made by written notice from Guild to the Company.
13. Severability. If any provision of this Agreement is held invalid,
illegal or unenforceable by a court or tribunal of competent jurisdiction, the
remainder of this Agreement shall not be affected thereby, and such provision
shall be carried out as nearly as possible according to its original terms and
intent to eliminate such invalidity or unenforceability. In this regard, the
parties agree that the provisions of Section 9, including, without limitation,
the scope of the territorial and time restrictions, are reasonable and necessary
to protect and preserve the Company's legitimate interests. If the provisions of
Section 9 are held by a court of competent jurisdiction to be in any respect
unreasonable, then such court may reduce the territory or time to which it
pertains or otherwise modify such provisions to the extent necessary to render
such provisions reasonable and enforceable.
14. Miscellaneous. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Headings used in this Agreement are for
convenience only and shall not be used in the interpretation of this Agreement.
References to Sections are to the sections of this Agreement. 15. Governing Law.
This Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of New York applicable to agreements made and fully
to be performed therein by residents thereof.
15. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and fully to be performed therein by residents thereof.
16. Arbitration. Any dispute arising out of or relating to any provision of
this Agreement or to the parties' performance of any of their respective
obligations hereunder shall be resolved before a single arbitrator chosen in
accordance with the Rules of the American Arbitration
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Association as at the time in effect New York, New York. The arbitration shall
take place in New York, New York in accordance with such Rules.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
INTEREP NATIONAL RADIO SALES, INC.
By /s/ Xxxxxxx X. XxXxxxx, Xx.
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Xxxxxxx X. XxXxxxx, Xx.,
Vice President
/s/ Xxxx X. Guild
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XXXX X. GUILD
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