Exhibit 10.54
TERMINATION AGREEMENT
Termination Agreement dated as of February 8, 1999 ("Agreement") between
Xxxxxxxx Broadcast Group, Inc., a Maryland corporation ("Xxxxxxxx") and Xxxxx
Xxxxx ("Xxxxx").
Whereas, Xxxxxxxx and Xxxxx have entered into an Employment Agreement dated
as of April 10, 1996 (the "Original Employment Agreement"), as amended by a
First Amendment to Employment Agreement dated as of May , 1998 (the "First
Amendment" and the Original Employment Agreement, as amended by the First
Amendment, being referred hereto as the "Amended Employment Agreement");
Whereas, Xxxxxxxx and Xxxxx have entered into a Consulting Agreement dated
as of April 10, 1996 (the "Consulting Agreement");
Whereas, pursuant to Section 10.3.1 (g) of the Amended Employment
Agreement, Xxxxx has the right to terminate the Agreement Term (as defined
therein) in the event that the Effective Date (as defined therein) shall not
have occurred by December 31, 1998, unless such failure is solely due to actions
or failure to take actions on the part of Xxxxx (other than the failure of Xxxxx
to eliminate his attributable interest in RCB and RCLP (each as defined
therein);
Whereas, the Effective Date has not occurred by December 31, 1998, and such
failure has not been as a result of actions or the failure to take actions on
the part of Xxxxx;
Whereas, Xxxxx desires to terminate the Amended Employment Agreement
pursuant to Section 10.3.1(g) of the Amended Employment Agreement;
Whereas, pursuant to Section 1.2 of the Consulting Agreement, the term of
Xxxxx'x engagement as a consultant to Xxxxxxxx terminates upon the termination
of the Agreement Term (as defined therein);
Whereas, Xxxxxxxx and Xxxxx desire to confirm and clarify their agreements
regarding termination of Xxxxx'x employment and Xxxxx'x engagement as a
consultant, as well as to provide for certain additional matters set forth
herein;
Now, therefore, in consideration of the foregoing, Xxxxxxxx and Xxxxx agree
as follows:
1. The Agreement Term, and Xxxxx'x engagement as a consultant pursuant to
the Consulting Agreement, (collectively referred to as "Xxxxx'x
employment with Xxxxxxxx") shall end on a date between March 8 and
April 8, 1999. At any time either Xxxxxxxx or Xxxxx may specify in
writing to the other a date between March 8 and April 8, 1999 at which
the Agreement Term and Xxxxx'x employment with Xxxxxxxx shall end. If
neither Xxxxxxxx nor Xxxxx specify in writing to the other such a
date, the Agreement Term shall end
on April 8, 1999. If either Xxxxxxxx or Xxxxx specify in writing a
date between March 8 and April 8, 1999, the Agreement Term and Xxxxx'x
employment with Xxxxxxxx shall terminate on the date specified. If
Xxxxxxxx and Xxxxx both specify a date, the Agreement Term and Xxxxx'x
employment with Xxxxxxxx shall terminate on the earlier of the two
dates specified. The date on which the Employment Term terminates is
referred to herein as the "Employment Termination Date". Xxxxx shall
not receive Base Salary under Section 4.1 of the Amended Employment
Agreement after March 8, 1999.
2. On March 8, 1999, Xxxxxxxx shall comply with its obligations under
clauses (a) and (b) of Section 10.3.2 of the Amended Employment
Agreement by wire transferring to Xxxxx (to an account to be specified
by Xxxxx to Xxxxxxxx in writing no later than March 6, 1999)
immediately available funds in an amount equal to $5,802,303.40 which
includes an amount equal to $575,615.00 which is the Bonus payable to
Xxxxx in respect of 1998 under Section 4.2.4 of the Employment
Agreement. An agreed calculation of such amount is set forth in
Exhibit X. Xxxxx waives his rights to payments of Bonus with respect
to the period from January 1, 1999 through the Employment Termination
Date under Section 4.2.4 of the Amended Employment Agreement.
3. Except as expressly provided otherwise hereunder, Xxxxxxxx and Xxxxx
each hereby acknowledge and confirm that they will strictly perform
all of their obligations according to their terms under the Amended
Employment Agreement and the Consulting Agreement. Without limitation
of the foregoing, Xxxxxxxx shall strictly perform all of its other
obligations referred to under Sections 6.3(a), 7, 10.3.2, 10.4, 15 and
Section 16.7 of the Amended Employment Agreement in respect of a
termination of Employment under Section 10.3.1(g). Any amounts
credited to Xxxxx'x account under any Xxxxxxxx deferred compensation
plan shall be paid to Xxxxx as provided in such plan.
4. On or prior to the Employment Termination Date, Xxxxxxxx shall pay in
full all remaining amounts for the membership and dues assessments of
Xxxxx as Cave's Valley Golf Club so that the membership of Xxxxx in
such club is paid in full. Xxxxxxxx shall also thereafter cooperate to
take such additional actions, if any, as may be necessary to fully
transfer such membership to Xxxxx.
5. Xxxxxxxx and Xxxxx agree that Article VI. (Exchange Rights) of the
Registration Rights Agreement dated as of May 31, 1996, as amended as
of October 31, 1996 ("Registration Rights Agreement"), provides
Holders (as defined therein), including without limitation Xxxxx, (i)
the right to sell from time to time less than all of such Holder's
Class A Common Stock that was converted from Series B Preferred Stock
and (ii) to present the remainder of such shares to the Company for
conversion into Series B Preferred Stock of Xxxxxxxx in accordance
with the terms of the Registration Rights Agreement and the Company's
charter.
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6. Notwithstanding the provisions of the Registration Rights Agreement,
Xxxxx Xxxxx shall have 160 days from the Employment Termination Date
to present the remainder of the shares referred to in Section 5 of
this Agreement to the Company for conversion into Series B Preferred
Stock. Xxxxx acknowledges that the Series B Preferred Stock referred
to in this Section 6 may, if necessary as a result of the provisions
of the Articles of Incorporation and Maryland law, be a class of
preferred stock of Xxxxxxxx identical in all respects to the
attributes of the Series B Preferred Stock. With respect to any shares
of Class A Common Stock referred to in Section 5 of this Agreement
that Xxxxx presents to Xxxxxxxx for conversion into Series B Preferred
Stock, and which have not been presented for conversion within 120
days of the Employment Termination Date, Xxxxx agrees that Xxxxxxxx
may, if it desires, fix the date and give notice of a redemption of
such shares to occur 180 days after the Employment Termination Date
not less than 170 days after such Employment Termination Date, and
Xxxxx waives the 30 day advance notice provision in Section 5(i) of
the Articles Supplementary relating to the Series B Preferred Stock to
the extent (and only to the extent) inconsistent with the other
provisions of this sentence.
7. Xxxxx agrees that, regardless of whether Xxxxxxxx or Xxxxx shall have
notified the other of a date pursuant to Section 1 of this Agreement,
Xxxxx shall support Xxxxxxxx'x business entertainment activities in
Park City, Utah scheduled for February 13, 1999 through March 8, 1999,
including by making Xxxxx'x house in Park City available for such
activities.
8. Xxxxxxxx and Xxxxx agree to the press release set forth as Exhibit B.
9. On or prior to February 18, 1999, Xxxxxxxx shall take or cause to be
taken all commercially reasonable actions (including actions by its
board of directors or compensation committee or both) as is necessary
to permit Xxxxx to transfer all or a portion of his employee stock
options in Xxxxxxxx, and all rights associated therewith, to any
member of his immediate family or one or more entities established for
the benefit of any member of Xxxxx'x immediate family.
10. Xxxxx shall have the same rights with respect to any dispute or
disagreement arising hereunder or related hereto as is set forth in
Section 16.7 of the Amended Employment Agreement with respect to any
dispute or disagreement arising out of the Amended Employment
Agreement.
11. Except with respect to the provisions of Section 5, nothing in this
Agreement, express or implied, is intended to confer on any person
other than the parties hereto or their respective successors and
permitted assigns, any rights remedies, obligations or liabilities
under or by reason of this Agreement. The
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Holders referred to in Section 5 hereof are express third party
beneficiaries of the provisions of Section 5 of this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
XXXXXXXX BROADCAST GROUP, INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
XXXXX XXXXX
/s/ Xxxxx Xxxxx
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