EXHIBIT 10.2
TNX TELEVISION HOLDINGS, INC.
0000 XXXXXXXX XXXXXX, XXXXX 000
XXXXXXXXXXXX, XXXXXXXXXXXX 00000
August 16, 2004
Xxxxx X. Xxxxxxx
c/o TNX Television Holdings, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Re: Employment Agreement
Dear Xx. Xxxxxxx:
This letter is to confirm our understanding with respect to (i) your
future employment by TNX Television Holdings, Inc. (the "Company"), (ii) your
agreement not to compete with the Company, or any present or future parent,
subsidiary or affiliate of the Company (each, a "Company Affiliate" and
collectively, together with the Company, the "Company Group"), (iii) your
agreement to protect and preserve information and property which is confidential
and proprietary to the Company Group and (iv) your agreement with respect to the
ownership of inventions, ideas, copyrights and patents which may be used in the
business of the Company Group (the terms and conditions agreed to in this letter
are hereinafter referred to as the "Agreement"). In consideration of the mutual
promises and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, we have agreed as follows:
1. Employment.
(a) Subject to the terms and conditions of this Agreement, the
Company will employ you, and you will be employed by the Company and/or
any Company Affiliate designated by the Company, as Vice President of
Strategic Planning and Finance and Secretary of the Company reporting to
the Chairman & CEO. You will have the responsibilities, duty and authority
commensurate with the position of Vice President of Strategic Planning and
Finance, including, without limitation, working with the CFO to assist
with US security filings and provide overall business analysis and
strategic planning. As Corporate Secretary you will have the
responsibilities, duty and authority commensurate with the position of
Corporate Secretary, including, without limitation, draft and distribute
minutes of Board meetings, assist in the preparation and distribution of
the proxy statement and notice of shareholders meetings, work closely with
the Chairman and senior management in preparing the script and agenda for
the annual meeting and execute documents on behalf of the corporation. You
will also perform such other and/or different services for the Company as
may be assigned to you from time to time by the Board and CEO. The
principal location at which you will perform such services will be the
Company's facility located at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, although you will be available to
perform services at any other Company facility and to travel as the needs
of business may require.
(b) Devotion to Duties. While you are employed hereunder, you will
use your best efforts, skills and abilities to perform faithfully all
duties assigned to you pursuant to this Agreement and will devote your
full business time and energies to the business and affairs of the
Company. While you are employed hereunder, you will not undertake any
other employment from any person or entity without the prior written
consent of the Company.
1
2. Term; Termination. Your employment hereunder will commence on November
13, 2003 (the "Commencement Date") and will be on an "at-will" basis and may be
terminated by the Company or by you for any reason or for no reason.
3. Compensation.
(a) Base Salary. While you are employed hereunder, the Company will
pay you a base salary at the annual rate of $180,000 (the "Base Salary").
The Base Salary shall be reviewed by the Company prior to the expiration
of the 30-day period immediately subsequent to the annual anniversary of
the Commencement Date and may be subject to adjustment in the discretion
of the Company. The Base Salary will be payable in substantially equal
installments in accordance with the Company's payroll practices as in
effect from time to time. The Company will deduct from each such
installment all amounts required to be deducted or withheld under
applicable law or under any employee benefit plan in which you
participate. You understand and acknowledge that the annualized amount of
the Base Salary is set forth as a matter of convenience and does not
constitute nor will be deemed to constitute an agreement by the Company to
employ you for any specific period of time.
(b) Bonus. In addition to the Base Salary, the Company may pay you
an annual bonus pursuant to the Company's Bonus Plan (the "Bonus"). Upon
the achievement of certain goals previously agreed to by you and the
Company, you shall be entitled to a bonus equal to 60% of your Base Salary
(the "Targeted Bonus Level"). Upon the achievement of the goals referred
to in the immediately preceding sentence, as well as the achievement of
additional goals previously agreed to by you and the Company, you shall be
entitled to a bonus of up to 90% of your Base Salary ("Additional Targeted
Bonus Level").
(c) Equity Compensation. At the discretion of and subject to
approval by the Board, and pursuant to a written stock option agreement
(the "Stock Option Agreement") between the Company and you under the TNX
Television Holdings, Inc Director, Officer and Consultant Stock Option
Plan (the "Plan"), you will be eligible to receive an annual option (the
"Option") to purchase shares of the Company's common stock (the "Common
Stock"). The exercise price for the Option will be the fair market value
per share of the Common Stock on the date the Option is granted and the
other terms and conditions of the Option will be as set forth in the Plan
and the Stock Option Agreement. The Option will be an incentive stock
option to the extent permissible under applicable law. Nothing in this
Agreement, the Plan or the Stock Option Agreement will be construed to
create an express or implied contract or promise to employ you for any
specific period of time.
(d) Vacation. You will be entitled to 20 days of paid vacation and
three personal days in each calendar year and paid holidays in accordance
with the Company's policies for its senior executives as in effect from
time to time. All vacation days will be taken at times mutually agreed by
you and the Company and will be subject to the business needs of the
Company. Up to five (5) days of accrued unused vacation may be carried
over from year to year.
(e) Fringe Benefits. You will be entitled to participate in employee
benefit plans which the Company provides or may establish for the benefit
of its senior executives generally (for example, group life, disability,
medical, dental and other insurance, retirement, pension, profit-sharing
and similar plans) (collectively, the "Fringe Benefits"), provided that
the Fringe Benefits will not include any stock option or similar plans
relating to the grant of equity securities of the Company. Your
eligibility to participate in the Fringe Benefits and receive benefits
thereunder will be subject to the plan documents governing such Fringe
Benefits. Nothing contained herein will require the Company to establish
or maintain any Fringe Benefits.
(f) Reimbursement of Expenses. Upon presentation of documentation of
such expenses reasonably satisfactory to the Company, the Company will
reimburse you for all ordinary and reasonable out-of-pocket business
expenses that are reasonably incurred by you in furtherance of the
Company's business in accordance with the Company's policies with respect
thereto as in effect from time to time.
4. Severance Compensation.
2
(a) Definition of Accrued Obligations. For purposes of this
Agreement, "Accrued Obligations" means (i) the portion of your Base Salary
as has accrued prior to any termination of your employment with the
Company and has not yet been paid, (ii) an amount equal to the value of
your accrued unused vacation days, (iii) the amount of any Bonus earned
and accrued but not yet paid, which amount will include a pro rata portion
of any Bonus which would have been earned if such termination had not
occurred and (iv) the amount of any expenses properly incurred by you on
behalf of the Company prior to any such termination and not yet
reimbursed.
(b) Termination Without Cause or for a Good Reason. If your
employment hereunder is terminated either by the Company without Cause or
by you for a Good Reason (either pursuant to Section 4(c) or 4(d) below):
(i) The Company will pay the Accrued Obligations to you
promptly following such termination.
(ii) The Company will continue to make monthly payments to you
in the aggregate amount equal to 50% of your Base Salary at the rate
in effect at such termination in accordance with Section 3(a) of
this Agreement for the period commencing on the date of such
termination and ending on the six-month anniversary of the date of
such termination, plus the Company shall pay you an additional 8.33%
of your Base Salary for each full year of employment with the
Company commencing on the Commencement Date, provided, however,
notwithstanding the length of your employment with the Company, you
shall not be entitled to payments in excess of 100% of your Base
Salary at the rate in effect at such termination.
(iii) The Company will continue to provide you with the Fringe
Benefits for so long as it is obligated to continue payments equal
to the Base Salary pursuant to Section 4(b)(ii) above, subject to
applicable law and the terms of the respective policies.
(iv) The Company will pay you accrued unused vacation.
(v) The Company will continue to pay you the Bonus in
accordance with Section 3(b) of this Agreement. The amount of such
bonus after the date of such termination will equal the greater of
(A) the pro rata portion of the last such Bonus paid before the date
of such termination, (B) the average of the three most recent
Bonuses paid before the date of such termination (and all such prior
bonuses if less than three); or (C) the Targeted Bonus Level.
(vi) All unvested Options issued to you by the Company prior
to or during your employment shall fully vest.
(c) Definition of "Cause". For purposes of this Agreement, "Cause"
means (i) your conviction of a felony, either in connection with the
performance of your obligations to the Company or which otherwise
materially and adversely affects your ability to perform such obligations,
(ii) your willful disloyalty or deliberate dishonesty, (iii) the
commission by you of an act of fraud or embezzlement against the Company,
or (iv) a material breach by you of any material provision of this
Agreement which breach is not cured within 30 days after delivery to you
by the Company of written notice of such breach, provided that if such
breach is not capable of being cured within such 30 day period, you will
have a reasonable additional period to cure such breach but only if you
promptly commence and continue good faith efforts to cure such breach. Any
determination under this Section 4(c) will be made by a majority of the
Board voting on such determination. With respect to any such
determination, the Board will act fairly and in utmost good faith and will
give you and your counsel an opportunity to appear and be heard at a
meeting of the Board or and present evidence on your behalf. No act or
omission on your part will be considered "willful" unless done, or
admitted to be done, by you in bad faith or without your reasonable belief
that such act or omission was in the best interest of the Company.
(d) Definition of "Good Reason". For purposes of this Agreement, a
"Good Reason" means any of the following:
3
(i) The relocation of the Company's offices to any location
that is not within a 15-mile radius of Philadelphia, Pennsylvania (a
"Relocation"); provided, however, that in the event that the Company
offers to either (A) permit you to work from your home and agrees to
pay you reasonable expenses to maintain a home office (including,
but not limited to, the costs of an additional phone line and
broadband internet connection) and reasonable expenses to travel to
the Company's new offices as deemed required by the Chief Executive
Officer of the Company (including an automobile allowance of $500
per month) or (B) if you remain with the Company in the event of a
Relocation, pay for all of your reasonable expenses associated with
relocating (including, but not limited to, temporary housing,
housing search, closing costs, automobile allowance, etc.),
provided, however, that you are in agreement with the terms of the
relocation package proposed by the Company, then a Relocation shall
not be deemed a Good Reason for purposes of this Agreement.
(ii) A material adverse change by the Company in your duties,
authority or responsibilities as Vice President of Strategic
Planning and Finance of the Company which causes your position with
the Company to become of less responsibility or authority than your
position as of immediately following the Commencement Date, provided
that such change is not in connection with a termination of your
employment hereunder by the Company;
(iii) The assignment to you of duties not commensurate or
consistent with your position as Vice President of Strategic
Planning and Finance of the Company without your prior written
consent;
(iv) A reduction in your compensation or other benefits except
such a reduction in connection with a general reduction in
compensation or other benefits of all senior executives of the
Company;
(v) A material breach of this Agreement by the Company that
has not been cured within 30 days after written notice thereof by
you to the Company;
(vi) A Change of Control (as defined in Section 4(e) below) of
the Company; or
(vii) Failure by the Company to obtain the assumption of this
Agreement by any successor to the Company.
(e) Definition of "Change of Control" For purposes of this
Agreement, a Change of Control means with respect to the Company or any of
its major subsidiaries that any of the following events has occurred:
(i) Any person (as such term is used in Section 13(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")), other than
the Company, any employee benefit plan of the Company or any entity
organized, appointed or established by the Company for or pursuant
to the terms of any such plan, together with all "affiliates" and
"associates" (as such terms are defined in Rule 12b-2 under the
Exchange Act) becomes the beneficial owner or owners (as defined in
Rule I 3d-3 and 13d-5 promulgated under the Exchange Act), directly
or indirectly (the "Control Group"), of more than 50% of the
outstanding equity securities of the Company, or otherwise becomes
entitled, directly or indirectly, to vote more than 50% of the
voting power entitled to be cast at elections for directors ("Voting
Power") of the Company, provided that a Change of Control will not
have occurred if such Control Group acquired securities or Voting
Power solely by purchasing securities from the Company, including,
without limitation, acquisition of securities by one or more third
party investors such as venture capital investor(s);
(ii) A consolidation or merger (in one transaction or a series
of related transactions) of the Company pursuant to which the
holders of the Company's equity securities immediately prior to such
transaction or series of related transactions would not be the
holders, directly or indirectly, immediately after such transaction
or series of related transactions of more than 50% of the Voting
Power of the entity surviving such transaction or series of related
transactions;
4
(iii) The sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Company or its major
subsidiaries; or
(iv) The liquidation or dissolution of the Company or the
Company ceasing to do business.
5. Prohibited Competition.
(a) Certain Acknowledgements and Agreements.
(i) We have discussed, and you recognize and acknowledge the
competitive and proprietary aspects of the business of the Company
Group.
(ii) You acknowledge that a business will be deemed
competitive with the Company Group if it performs any of the
services or manufactures or sells any of the products provided or
offered by the Company Group or if it performs any other services
and/or engages in the production, manufacture, distribution or sale
of any product similar to services or products, which services or
products were performed, produced, manufactured, distributed, sold,
under development or planned by the Company Group during the period
while you are employed hereunder.
(iii) You further acknowledge that, while you are employed
hereunder, the Company Group will furnish, disclose or make
available to you Confidential Information (as defined below) related
to the business of the Company Group and that the Company Group may
provide you with unique and specialized training. You also
acknowledge that such Confidential Information and such training
have been developed and will be developed by the Company Group
through the expenditure by the Company Group of substantial time,
effort and money and that all such Confidential Information and
training could be used by you to compete with the Company Group. You
also acknowledge that if you become employed or affiliated with any
competitor of the Company Group in violation of your obligations in
this Agreement, it is inevitable that you would disclose the
Confidential Information to such competitor and would use such
Confidential Information, knowingly or unknowingly, on behalf of
such competitor. Further, while you are employed hereunder, you will
be introduced to customers and others with important relationships
to the Company Group. You acknowledge that any and all "goodwill"
created through such introductions belongs exclusively to the
Company Group, including, without limitation, any goodwill created
as a result of direct or indirect contacts or relationships between
yourself and any customers of the Company Group.
(iv) For purposes of this Agreement, "Confidential
Information" means confidential and proprietary information of the
Company Group, whether in written, oral, electronic or other form,
including but not limited to, information and facts concerning
business plans, customers, future customers, suppliers, licensors,
licensees, partners, investors, affiliates or others, training
methods and materials, financial information, sales prospects,
client lists, inventions, or any other scientific, technical or
trade secrets of the Company Group or of any third party provided to
you or the Company Group under a condition of confidentiality,
provided that Confidential Information will not include information
that is in the public domain other than through any fault or act by
you. The term "trade secrets," as used in this Agreement, will be
given its broadest possible interpretation under the law of
Pennsylvania and will include, without limitation, anything tangible
or intangible or electronically kept or stored, which constitutes,
represents, evidences or records secret scientific, technical,
merchandising, production or management information, or any design,
process, procedure, formula, invention, improvement or other
confidential or proprietary information or documents.
(b) Non-Competition; Non-Solicitation. While you are employed
hereunder and for a period of one year following the termination of your
employment hereunder for any reason or for no reason, you will not,
without the prior written consent of the Company:
5
(i) For yourself or on behalf of any other person or entity,
directly or indirectly, either as principal, partner, stockholder,
officer, director, member employee, consultant, agent,
representative or in any other capacity, own, manage, operate or
control, or be concerned, connected or employed by, or otherwise
associate in any manner with, engage in or have a financial interest
in, any business which is competitive with the business of the
Company Group (each, a "Restricted Activity") within the United
Kingdom of Great Britain and Ireland and any other territories in
which the Company or its major subsidiaries generates substantial
revenue (the "Restricted Territory"), except that (A) nothing
contained herein will preclude you from purchasing or owning
securities of any such business if such securities are publicly
traded, and provided that your holdings do not exceed one percent of
the issued and outstanding securities of any class of securities of
such business and (B) nothing contained herein will prohibit you
from engaging in a Restricted Activity for or with respect to any
subsidiary, division or affiliate or unit (each, a "Unit") of an
entity if that Unit is not engaged in any business which is
competitive with the business of the Company Group, irrespective of
whether some other Unit of such entity engages in such competition
(as long as you do not engage in a Restricted Activity for such
other Unit); or
(ii) Either individually or on behalf of or through any third
party, directly or indirectly, solicit, divert or appropriate or
attempt to solicit, divert or appropriate, for the purpose of
competing with the Company Group, any customers or patrons of the
Company Group, or any prospective customers or patrons with respect
to which the Company Group has developed or made a sales
presentation (or similar offering of services); or
(iii) Either individually or on behalf of or through any third
party, directly or indirectly, (A) solicit, entice or persuade or
attempt to solicit, entice or persuade any employees of or
consultant to the Company Group to leave the service of the Company
Group for any reason, or (B) employ, cause to be employed, or
solicit the employment of, any employee of or consultant to the
Company Group while any such person is providing services to the
Company Group or within six months after any such person has ceased
providing services to the Company Group; or
(iv) Either individually or on behalf of or through any third
party, directly or indirectly, interfere with, or attempt to
interfere with, the relations between the Company Group and any
vendor or supplier to the Company Group.
(c) Reasonableness of Restrictions. You further recognize and
acknowledge that (i) the types of employment which are prohibited by this
Section 5 are narrow and reasonable in relation to the skills which
represent your principal salable asset both to the Company Group and to
your other prospective employers and (ii) the time period and the specific
but broad geographical scope of the provisions of this Section 5 is
reasonable, legitimate and fair to you in light of the Company Group's
need to market its services and sell its products in a large geographic
area in order to have a sufficient customer base to make the Company
Group's business profitable and in light of the limited restrictions on
the type of employment prohibited herein compared to the types of
employment for which you are qualified to earn your livelihood.
(d) Survival of Acknowledgements and Agreements. Your
acknowledgements and agreements set forth in this Section 5 will survive
the termination of this Agreement and the termination of your employment
hereunder for any reason or for no reason.
6. Protected Information. You will at all times, both during the period
while you are employed hereunder and after the termination of this Agreement and
the termination of your employment hereunder for any reason or for no reason,
maintain in confidence and will not, without the prior written consent of the
Company Group, use, except as required in the course of performance of your
duties for the Company Group or by court order, disclose or give to others any
Confidential Information. In the event you are questioned by anyone not employed
by the Company or by an employee of or a consultant to the Company not
authorized to receive Confidential Information, in regard to any Confidential
Information, or concerning any fact or circumstance relating thereto, you will
promptly notify the Company. Upon the termination of your employment hereunder
for any reason or for no reason, or if the Company Group otherwise requests, you
will return to the Company Group all tangible Confidential Information and
copies thereof (regardless how such Confidential Information or copies are
maintained). The terms of this Section 6 are in addition to, and not in lieu of,
any statutory or other contractual or legal obligation that you may have
relating to the protection of the Company Group's Confidential Information. The
terms of this Section 6 will survive indefinitely any termination of this
Agreement and/or any termination of your employment hereunder for any reason or
for no reason.
6
7. Ownership of Ideas, Copyrights and Patents.
(a) Property of the Company. All ideas, discoveries, creations,
manuscripts and properties, innovations, improvements, know-how,
inventions, designs, developments, apparatus, techniques, methods and
formulae (collectively, the "Inventions") which may be used in the current
or planned business of the Company Group or which in any way relates to
such business, whether patentable, copyrightable or not, which you may
conceive, reduce to practice or develop while you are employed hereunder
(and, if based on or related to any Confidential Information, within two
years after termination of such employment for any reason or for no
reason), alone or in conjunction with another or others, whether during or
out of regular business hours, whether or not on the Company Group's
premises or with the use of its equipment, and whether at the request or
upon the suggestion of the Company Group or otherwise, will be the sole
and exclusive property of the Company Group, and that you will not publish
any of the Inventions without the prior written consent of the Company
Group. Without limiting the foregoing, you also acknowledge that all
original works of authorship which are made by you (solely or jointly with
others) within the scope of your employment or which relate to the
business of the Company Group and which are protectable by copyright are
"works made for hire" pursuant to the United States Copyright Act (17
U.S.C. Section 101). You hereby assign to the Company Group all of your
right, title and interest in and to all of the foregoing. You further
represent that, to the best of your knowledge and belief, none of the
Inventions will violate or infringe upon any right, patent, copyright,
trademark or right of privacy, or constitute libel or slander against or
violate any other rights of any person, firm or corporation, and that you
will use your best efforts to prevent any such violation.
(b) Cooperation. At any time during your employment hereunder or
after the termination of your employment hereunder for any reason or for
no reason, you will cooperate fully with the Company Group's and its
attorneys and agents in the preparation and filing of all papers and other
documents as may be required to perfect the Company Group's rights in and
to any of such Inventions, including, but not limited to, joining in any
proceeding to obtain letters patent, copyrights, trademarks or other legal
rights with respect to any such Inventions in the United States and in any
and all other countries, provided that the Company Group will bear the
expense of such proceedings, and that any patent or other legal right so
issued to you personally will be assigned by you to the Company Group
without charge by you.
8. Disclosure to Future Employers. You will provide, and the Company, in
its discretion, may similarly provide, a copy of the covenants contained in
Sections 5, 6 and 7 of this Agreement to any business or enterprise which you
may, directly or indirectly, own, manage, operate, finance, join, control or in
which you may participate in the ownership, management, operation, financing, or
control, or with which you may be connected as an officer, director, employee,
partner, principal, agent, representative, consultant or otherwise.
9. Records. Upon termination of your employment hereunder for any reason
or for no reason and at any other time requested by the Company, you will
deliver to the Company Group any property of the Company Group which may be in
your possession, including products, materials, memoranda, notes, records,
reports, or other documents or photocopies of the same.
10. Insurance. The Company, in its sole discretion, may apply for and
purchase key person life insurance on your life in an amount determined by the
Company with the Company Group as beneficiary and one or more other policies of
insurance insuring your life. You will submit to any medical or other
examinations and to execute and deliver any applications or other instruments in
writing that are reasonably necessary to effectuate such insurance.
11. Representations. You hereby represent and warrant to the Company that
you understand this Agreement, that you enter into this Agreement voluntarily
and that your employment under this Agreement will not conflict with any legal
duty owed by you to any other party, or with any agreement to which you are a
party or by which you are bound, including, without limitation, any
non-competition or non-solicitation provision contained in any such agreement.
You will indemnify and hold harmless the Company Group and its officers,
directors, security holders, partners, members, employees, agents and
representatives against loss, damage, liability or expense arising from any
claim based upon circumstances alleged to be inconsistent with such
representation and warranty.
7
12. General.
(a) Notices. All notices, requests, consents and other
communications hereunder which are required to be provided, or which the
sender elects to provide, in writing, will be addressed to the receiving
party's address set forth above or to such other address as a party may
designate by notice hereunder, and will be either (i) delivered by hand,
(ii) sent by overnight courier, or (iii) sent by registered or certified
mail, return receipt requested, postage prepaid. All notices, requests,
consents and other communications hereunder will be deemed to have been
given either (i) if by hand, at the time of the delivery thereof to the
receiving party at the address of such party set forth above, (ii) if sent
by overnight courier, on the next business day following the day such
notice is delivered to the courier service, or (iii) if sent by registered
or certified mail, on the fifth business day following the day such
mailing is made.
(b) Entire Agreement. This Agreement and the other agreements
specifically referred to herein, embodies the entire agreement and
understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement of any kind not expressly
set forth in this Agreement will affect, or be used to interpret, change
or restrict, the express terms and provisions of this Agreement.
(c) Modifications and Amendments. The terms and provisions of this
Agreement may be modified or amended only by written agreement executed by
the parties hereto.
(d) Waivers and Consents. The terms and provisions of this Agreement
may be waived, or consent for the departure therefrom granted, only by
written document executed by the party entitled to the benefits of such
terms or provisions. No such waiver or consent will be deemed to be or
will constitute a waiver or consent with respect to any other terms or
provisions of this Agreement, whether or not similar. Each such waiver or
consent will be effective only in the specific instance and for the
purpose for which it was given, and will not constitute a continuing
waiver or consent.
(e) Assignment. The Company may assign its rights and obligations
hereunder to any person or entity that succeeds to all or substantially
all of the Company's business or that aspect of the Company's business in
which you are principally involved or to any Company Affiliate. You may
not assign your rights and obligations under this Agreement without the
prior written consent of the Company and any such attempted assignment by
you without the prior written consent of the Company will be void.
(f) Benefit. All statements, representations, warranties, covenants
and agreements in this Agreement will be binding on the parties hereto and
will inure to the benefit of the respective successors and permitted
assigns of each party hereto. Nothing in this Agreement will be construed
to create any rights or obligations except between the Company and you,
except for your obligations to the Company Group as set forth herein, and
no person or entity (except for a Company Affiliate as set forth herein)
will be regarded as a third-party beneficiary of this Agreement.
(g) Governing Law. This Agreement and the rights and obligations of
the parties hereunder will be construed in accordance with and governed by
the law of Pennsylvania, without giving effect to the conflict of law
principles thereof.
(h) Jurisdiction, Venue and Service of Process. Any legal action or
proceeding with respect to this Agreement that is not subject to
arbitration pursuant to Section 12(i) below will be brought in the courts
of Pennsylvania or of the United States of America for the Eastern
District of Pennsylvania. By execution and delivery of this Agreement,
each of the parties hereto accepts for itself and in respect of its
property, generally and unconditionally, the exclusive jurisdiction of the
aforesaid courts.
8
(i) Arbitration. Any controversy, dispute or claim arising out of or
in connection with this Agreement, other than a controversy, dispute or
claim arising under Section 5, 6 or 7 hereof, will be settled by final and
binding arbitration to be conducted in Philadelphia. Pennsylvania or other
agreed to jurisdiction pursuant to the national rules for the resolution
of employment disputes of the American Arbitration Association then in
effect. The decision or award in any such arbitration will be final and
binding upon the parties and judgment upon such decision or award may be
entered in any court of competent jurisdiction or application may be made
to any such court for judicial acceptance of such decision or award and an
order of enforcement. In the event that any procedural matter is not
covered by the aforesaid rules, the procedural law of Pennsylvania will
govern. ANY DISAGREEMENT AS TO WHETHER A PARTICULAR DISPUTE IS ARBITRABLE
UNDER THIS AGREEMENT SHALL ITSELF BE SUBJECT TO ARBITRATION IN ACCORDANCE
WITH THE PROCEDURES SET FORTH HEREIN.
(j) Severability. The parties intend this Agreement to be enforced
as written. However, (i) if any portion or provision of this Agreement is
to any extent declared illegal or unenforceable by a duly authorized court
having jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those
as to which it is so declared illegal or unenforceable, will not be
affected thereby, and each portion and provision of this Agreement will be
valid and enforceable to the fullest extent permitted by law and (ii) if
any provision, or part thereof, is held to be unenforceable because of the
duration of such provision, the geographic area covered thereby, or other
aspect or scope of such provision, the court making such determination
will have the power to reduce the duration, geographic area of such
provision, or other aspect or scope of such provision, and/or to delete
specific words and phrases ("blue-penciling"), and in its reduced or
blue-penciled form, such provision will then be enforceable and will be
enforced.
(k) Headings and Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and
will in no way modify or affect the meaning or construction of any of the
terms or provisions hereof.
(l) Injunctive Relief. You hereby expressly acknowledge that any
breach or threatened breach of any of the terms and/or conditions set
forth in Section 5, 6 or 7 of this Agreement will result in substantial,
continuing and irreparable injury to the Company Group. Therefore, in
addition to any other remedy that may be available to the Company Group,
the Company Group will be entitled to injunctive or other equitable relief
by a court of appropriate jurisdiction in the event of any breach or
threatened breach of the terms of Section 5, 6 or 7 of this Agreement. The
period during which the covenants contained in Section 5 will apply will
be extended by any periods during which you are found by a court to have
been in violation of such covenants.
(m) No Waiver of Rights, Powers and Remedies. No failure or delay by
a party hereto in exercising any right, power or remedy under this
Agreement, and no course of dealing between the parties hereto, will
operate as a waiver of any such right, power or remedy of the party. No
single or partial exercise of any right, power or remedy under this
Agreement by a party hereto, nor any abandonment or discontinuance of
steps to enforce any such right, power or remedy, will preclude such party
from any other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The election of any remedy by a party
hereto will not constitute a waiver of the right of such party to pursue
other available remedies. No notice to or demand on a party not expressly
required under this Agreement will entitle the party receiving such notice
or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving
such notice or demand to any other or further action in any circumstances
without such notice or demand.
(n) Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties hereto on separate counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
(o) Opportunity to Review. You hereby acknowledge that you have had
adequate opportunity to review these terms and conditions and to reflect
upon and consider the terms and conditions of this Agreement, and that you
have had the opportunity to consult with counsel of your own choosing
regarding such terms. You further acknowledge that you fully understand
the terms of this Agreement and have voluntarily executed this Agreement.
9
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10
If the foregoing accurately sets forth our agreement, please so indicate
by signing and returning to us the enclosed copy of this Agreement.
Very truly yours,
TNX Television Holdings, Inc.
By:/s/ Xxxx Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxx Xxxxxxxxx
Title: Chairman Compensation Committee
Accepted and Approved
/s/ Xxxxx X. Xxxxxxx August 16, 2004
--------------------------- ---------------
Print Name: Date
11
