Exhibit 10.1
AGREEMENT
The Agreement is effective as of the 29th day of June, 2000. The parties to
this Agreement are Xxxxxxx X. Xxxxx ("X. Xxxxx") and his wife, Xxxxx X. Xxxxx
("X. Xxxxx"), collectively "the Scotts", and Xxxxxx Companies Inc. ("FCI") and
Xxxxxx Broadcasting Inc. ("FBI"), collectively "Xxxxxx".
Preamble:
X. X. Xxxxx is a long term, valuable employee of FCI's subsidiary, FBI, and is
separating from FBI due to a disability.
X. Xxxxxx wishes to assist X. Xxxxx in bridging the income gap left by his
anticipated separation prior to normal retirement.
Therefore, the parties agree as follows:
1. Separation Due to Disability. Effective January 31, 2001 ("the Separation
Date"), X. Xxxxx'x employment with FBI will be terminated due to his present
disability. Due to his disability, X. Xxxxx will also resign as an officer and
director of FBI effective as of the Separation Date or, at an earlier date, if
requested by Xxxxxx. Prior to the Separation Date, X. Xxxxx will perform such
duties as reasonably possible in light of his disability. Beginning August 1,
2000, X. Xxxxx will utilize his unused accrued sick leave and, thereafter, if
necessary, vacation leave (the parties agree that X. Xxxxx'x unused accrued
vacation leave totaled 1067 hours as of December 31, 1999). To the extent
possible, this time will be applied against the six month elimination period
under the Plan (as defined below). To the extent not used before the Separation
Date, X. Xxxxx may receive the cash value of his remaining vacation leave, such
cash value to be based upon his current base compensation and to be paid to him
not later than the Separation Date. Unused sick leave will be forfeited. After
the Separation Date, X. Xxxxx will have no ongoing duties or responsibilities
for Xxxxxx or its successors, but he agrees, if requested, to provide limited
consultation from time to time as reasonably requested and possible in light of
his disability, to assure a smooth transition of X. Xxxxx'x responsibilities.
Such consultation shall be provided at no expense to Xxxxxx.
2. Announcement of Separation. The parties agree that X. Xxxxx'x separation
will be announced and described as an early retirement requested by X. Xxxxx.
The precise timing and place of any such announcement(s) will be as mutually
agreed. The details of this Agreement and the fact of X. Xxxxx'x disability
will remain confidential, except as expressly provided elsewhere in this
Agreement.
3. Disability Benefits. Within ten (10) business days after the date of this
Agreement, X. Xxxxx will file the appropriate applications for, and the parties
to this Agreement will use their best
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efforts to obtain initially and then retain, disability benefits for X. Xxxxx
under all applicable disability insurance policies in existence as of the
effective date of this Agreement. It is expected that such efforts by X. Xxxxx
will include without limitation submitting to periodic physical examinations and
responding to insurance company inquiries. All such disability benefits will be
paid to X. Xxxxx immediately following the receipt thereof by Xxxxxx, subject to
applicable withholding as contemplated by paragraph 7 of this Agreement.
4. Supplemental Pension Plan Benefits. Subject to paragraph 3 of this
Agreement and to the conditions of the Supplemental Pension Plan, X. Xxxxx shall
be entitled to receive the following benefits:
a. Benefits Under the Plan. X. Xxxxx shall receive such disability and
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retirement benefits or such other benefits as are provided under the
Supplemental Pension Plan effective as of March 7, 1996 (the "Plan").
b. Separation/Disability Pay. It is projected that X. Xxxxx'x monthly
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disability payment under the Plan will be $21,153 (based on 60% of Average
Compensation (as defined in the Plan) of $423,056). Xxxxxx maintains four
disability insurance policies on X. Xxxxx, the aggregate monthly benefits from
which are expected to be $15,450. The parties acknowledge that it is possible
(although not expected) that X. Xxxxx may not initially or continue until age 65
to qualify for the full amount of such benefits. Xxxxxx agrees to provide up
to, but not to exceed, $1,000,000 in disability payments to be paid between the
Separation Date and X. Xxxxx attaining age 65, as follows:
(i) the difference between the projected monthly disability payment of
$21,153 and the aggregate amount of the expected monthly disability
insurance proceeds of $15,450 or $5,703; and
(ii) any reduction in the aggregate monthly disability insurance proceeds
in the event any disability insurance benefit is denied initially or after
commencement due to a determination by an insurance carrier that X. Xxxxx
is not or has ceased to be disabled.
In the event all the disability insurance carriers determine that X. Xxxxx is
not or is no longer disabled, Xxxxxx will make or continue to make monthly
disability payments to X. Xxxxx of $21,153 until the full amount of the
$1,000,000 has been expended. In such event, X. Xxxxx'x accrual of service
credit under the Plan will continue until the $1,000,000 has been paid, at which
time the continued accrual of service credit will cease and his retirement
benefit will be calculated as of that time pursuant to the Plan. If any amount
of the $1,000,000 has not been expended at the time X. Xxxxx attains age 65,
Xxxxxx will pay such amount to him in a lump sum payment within thirty (30) days
after his 65/th/ birthday.
c. No Affect. This Agreement will not affect X. Xxxxx'x vested rights under
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the FBI Defined Pension Trust or 401(K) Plan.
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5. Medical and Dental Coverage. Xxxxxx will provide, at its expense, continued
medical and dental insurance coverage for X. Xxxxx until he attains age 65, for
X. Xxxxx until she attains age 65, and for their son Xxxx for the same period of
time that he would be eligible to remain on X. Xxxxx'x medical and dental
coverage which is in effect as of the Separation Date. If for any reason Xxxxxx
is no longer able to provide such benefits under its existing plans, Xxxxxx will
either procure individual policies with comparable benefits or will reimburse X.
Xxxxx, X. Xxxxx and their son for the premiums on such comparable policies. If
X. Xxxxx and/or X. Xxxxx become eligible for medical or dental coverage by
reason of the employment of either, then Xxxxxx'x obligation to provide coverage
or reimbursement will terminate as of the date of such eligibility.
6. Xxxxxx Stock Options and Grants. The Committee under the Xxxxxx Companies
Incentive Plan of 1995 has determined, based on a medical opinion from X.
Xxxxx'x physician, that X. Xxxxx'x employment with FBI is terminating because of
a disability within the meaning of such Plan, as amended prior to the effective
date of this Agreement. X. Xxxxx will have all rights accorded to employees
terminating due to disability set forth in the Amended and Restated Xxxxxx
Companies Incentive Plan of 1995 and in X. Xxxxx'x existing stock option and
restricted stock rights agreements.
7. Withholding. All payments required by this Agreement to be made by Xxxxxx
will be subject to the withholding of such amounts, if any, relating to tax and
other payroll deductions as Xxxxxx may reasonably determine should be withheld
or paid according to any applicable law or regulation.
8. Confidentiality. X. Xxxxx acknowledges that during the course of his
relationship with Xxxxxx, he has had and may continue to have access to and make
use of certain trade secrets and confidential information (collectively,
"Confidential Information"). "Confidential Information" refers to all nonpublic
information relating to Xxxxxx or its affiliates that is disclosed to or
produced by X. Xxxxx or that X. Xxxxx otherwise obtains during employment with
FBI, including but not limited to business strategies, financial results, lists
of current or future customer accounts, key persons to contact with regard to
customer accounts, customer needs, contractual agreements between Xxxxxx and
others, ideas, and compilations of information and records owned by Xxxxxx and
regularly used in business operations by Xxxxxx. X. Xxxxx agrees that he will
not disclose any Confidential Information, directly or indirectly, or use any of
it in any way, except as required in the course of his relationship with Xxxxxx.
X. Xxxxx further agrees that all files, records, documents, drawings,
specifications, lists, equipment, graphics, designs, and similar items relating
to the business of Xxxxxx, including any copies, whether prepared by X. Xxxxx or
otherwise coming into his possession, will remain the exclusive property of
Xxxxxx and will not be removed from the premises of Xxxxxx without the prior
written consent of Xxxxxx, or if already removed will either be returned to
Xxxxxx prior to the Separation Date or destroyed by X. Xxxxx and such
destruction certified in writing to Xxxxxx. The parties agree that the terms of
this Agreement are confidential, that the Scotts will not disclose any such
terms to any third party (including without limitation any employees of Xxxxxx,
unless authorized by Xxxxxx to discuss same with specific employees) except
their attorney and financial advisors (who the Scotts will use their best
efforts to ensure comply with this confidentiality commitment) or as required by
law, and that
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Xxxxxx will not disclose any such terms to any third party (including without
limitation those employees of Xxxxxx who have no need to know such terms) except
their attorneys and employee benefit advisors (who Xxxxxx will use their best
efforts to ensure comply with this confidentiality commitment) or as required by
law.
9. Release. The Scotts waive all claims against Xxxxxx, its past and/or
present affiliated entities, and/or their past and/or present shareholders,
owners, officers, directors, employees and/or agents in connection with X.
Xxxxx'x employment by and separation from FBI. This waiver covers all existing
claims, whether known to the Scotts now or not, including but not limited to
claims which could be made under the federal Age Discrimination in Employment
Act ("ADEA"), the federal Americans with Disabilities Act, the federal Civil
Rights Acts, any other federal, state or local law, or any express or implied
contract, as well as any claims for attorneys fees. The Scotts acknowledge that
nothing in this Agreement is to be interpreted as an admission by Xxxxxx or any
other entity or person of any wrongdoing.
10. Execution and Revocation. X. Xxxxx acknowledges that he has been advised
in writing, by this paragraph, to consult an attorney before signing this
Agreement. X. Xxxxx also acknowledges that he has had an opportunity to consult
with an attorney and that he has had the opportunity to take at least 21 days to
consider this Agreement and whether to accept its terms. The Scotts acknowledge
that they sign this Agreement voluntarily and that they fully understand its
terms. X. Xxxxx understands that he may revoke his acceptance of this Agreement
during the seven days following his execution of this Agreement only by delivery
of a written notice to Xxxxxx. If X. Xxxxx does so revoke such acceptance, this
Agreement will not become effective or enforceable.
11. General Provisions.
a. Disputes. Any dispute or controversy arising out of or in connection with
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this Agreement will be arbitrated in Seattle, Washington before a single
arbitrator under the rules of the American Arbitration Association, except to
the extent a non-breaching party seeks injunctive relief, in which case the
action may be filed in court in King County, Washington, which the parties agree
is the appropriate venue for any such action. Further, the parties agree that
Washington law, without regard to its conflict of laws provisions, will govern
any dispute between the parties. The results of any arbitration will be final,
binding on all parties, and a judgment thereon may be entered in any court.
The claimant in the arbitration will have the burden of proving its/his/her
claim by a preponderance of the evidence. The arbitrator will render a written
decision, naming the substantially prevailing party.
b. Attorney's Fees. If any party initiates an arbitration or lawsuit to
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enforce this Agreement or to recover damages for the breach thereof, the
substantially prevailing party will be entitled to recover its/his/her costs and
attorney's fees in such action.
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c. Assignment. No party may assign its/his/her rights and obligations under
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this Agreement without the prior written consent of the other parties, which
consent will not be unreasonably withheld.
d. Binding Effect; Beneficiaries. This Agreement will bind and inure to the
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benefit of the parties, their permitted assigns, and the Scotts legal
representatives and heirs, as well as the Scotts' son in connection with
Xxxxxx'x commitment in this Agreement to provide medical and dental coverage to
him. With the exception of medical and dental coverage for X. Xxxxx
individually, Xxxxxx'x obligations in this Agreement will survive X. Xxxxx'x
death. Xxxxxx shall cause any successor to it to assume Xxxxxx'x continuing
obligations under this Agreement, including any obligations under the benefit
plans referred to herein.
e. Authority. Xxxxxx warrants that it has been duly authorized to enter into
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this Agreement.
f. Miscellaneous. This Agreement constitutes a single integrated contract
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expressing the entire agreement of the parties and may be amended only in
writing. There are no other representations or agreements, whether oral or
written, in regard to this Agreement or its subject matter. The parties further
agree that this Agreement will not be construed in favor of or against any
party. If any provision of this Agreement is held invalid, it will be
considered severable from the remainder, and the remaining provisions will be
given full force and effect.
Signed on the dates indicated below.
Date: June 28, 2000 /s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
Date: June 28, 2000 /s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX
XXXXXX COMPANIES INC.
Date: June 29, 2000 By /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
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Its President & CEO
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XXXXXX BROADCASTING INC.
Date: June 29, 2000 By /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
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