1
EXHIBIT 10.34
EMPLOYMENT AGREEMENT
AGREEMENT made and entered into as of the 1st day of June, 1999, by and
between PULITZER INC., a Delaware corporation with its principal offices in St.
Louis, Missouri (the "Company"), and XXXXXX X. XXXXXXX, a resident of the State
of Missouri ("Xx. Xxxxxxx").
1. Employment. The Company will continue to employ Xx. Xxxxxxx, and Xx.
Xxxxxxx will continue to be employed by the Company, upon the terms and
conditions set forth in this Agreement.
2. Term of Employment. Subject to earlier termination in accordance
with Section 7, the term of Xx. Xxxxxxx'x employment under this Agreement will
be begin as of the date hereof and will end on August 31, 2001.
3. Position, Duties and Responsibilities. Xx. Xxxxxxx will serve as
Senior Vice President-Finance or in such other senior executive capacity as the
Board of Directors of the Company (the "Board") may determine. Xx. Xxxxxxx will
report directly to the Chairman of the Board and the Chief Executive Officer of
the Company. Xx. Xxxxxxx will devote substantially all of his business time and
attention to the performance of his duties and responsibilities under this
Agreement. Xx. Xxxxxxx may engage in personal, charitable, investment,
professional and other activities to the extent such activities do not prevent
him from properly fulfilling his obligations to the Company under this
Agreement.
4. Compensation.
(a) Base Salary. The Company will pay salary to Xx. Xxxxxxx at an
annual rate of $360,000, in accordance with its regular payroll practices. The
Board will review Xx. Xxxxxxx'x salary at least annually. The Board, acting in
its discretion, may increase (but may not decrease) the annual rate of Xx.
Xxxxxxx'x salary in effect at any time.
(b) Annual Incentive Awards. Xx. Xxxxxxx will participate in any bonus
plan that may be established by the Company on the same basis as other senior
executives. At a minimum, Xx. Xxxxxxx will be eligible for an annual target
incentive opportunity of 40% of salary. Annual bonuses will be payable promptly
after the end of the year for which they are earned, subject to deferral
requirements that may be imposed by the Company in order to preserve its income
tax deduction or elective deferral opportunities that may be afforded by the
Company.
(c) Employee Benefit Programs and Perquisites. Xx. Xxxxxxx will be
entitled to participate in such employee retirement, pension, welfare and fringe
benefit plans, arrangements and programs of the Company as are made available to
the Company's employees generally and to receive such additional benefits and
perquisites as are made available to other senior level executives of the
Company from time to time. The Company has assumed the obligations of Pulitzer
Publishing Company ("PPC") under its split dollar life insurance agreement dated
December 30,1996 with Xxxxx X. Xxxxxxx and Boatmen's Trust Company, as
amended. Xx. Xxxxxxx will be entitled to participate in any stock option,
restricted stock or other equity-based plans or programs of the Company that are
made available to other executives of the Company.
(d) SERP. The Company has assumed the obligations of PPC to Xx. Xxxxxxx
for benefits accrued by Xx. Xxxxxxx under PPC's Supplemental Executive Benefit
Pension Plan ("SERP")
2
prior to the closing (the "Closing") of the transactions contemplated by the
Amended and Restated Agreement and Plan of Merger, dated as of May 25, 1998, by
and among PPC, the Company and Hearst-Argyle Television Inc., and the Company
will either continue to maintain the SERP for the benefit of its eligible
employees (including Xx. Xxxxxxx) or will establish another plan or arrangement
that will provide Xx. Xxxxxxx with continuing future benefits and accruals that
are at least as favorable as would have been provided under the terms of the
SERP in effect immediately prior to the Closing.
(e) Retirement. Notwithstanding anything to the contrary contained
herein or in any other agreement, plan, program or arrangement, if Xx. Xxxxxxx
continues his employment with the Company through the end of the stated term or
if his employment ends sooner for any reason other than death, termination by
the Company for Cause (as defined in Section 7(c) hereof) or voluntary
termination by Xx. Xxxxxxx without Good Reason (as defined in Section 7(d)
hereof), then, for all purposes of this Agreement and for the purposes of
determining Xx. Xxxxxxx'x and his dependents' or beneficiaries' rights and
entitlements under any pension, retiree medical, retiree life insurance, or any
other employee benefit plan, program or arrangement (except any tax-qualified
retirement pension or savings plan in which Xx. Xxxxxxx is then a participant),
including, without limitation, the right to receive his total accrued SERP
benefit (without reduction for early retirement or otherwise) and the
acceleration of his vesting under any stock option, restricted stock or other
equity compensation plan or arrangement of the Company, Xx. Xxxxxxx will be
deemed to have terminated active employment by reason of his normal retirement.
5. Place and Conditions of Employment. Xx. Xxxxxxx'x place of
employment during the term of his employment under this Agreement will be in
the St. Louis metropolitan area, subject to the need for occasional business
travel. The conditions of Xx. Xxxxxxx'x employment, including, without
limitation, office space and accouterments, secretarial, administrative and
other support, will be consistent with his status as a senior executive officer
of the Company.
6. Reimbursement of Business Expenses. Xx. Xxxxxxx is authorized to
incur reasonable expenses in carrying out his duties and responsibilities under
this Agreement, and the Company will promptly reimburse him for all such
expenses that are so incurred upon presentation of appropriate vouchers or
receipts, subject to the Company's expense reimbursement policies applicable to
senior executive officers generally.
7. Termination of Employment.
(a) Death. If Xx. Xxxxxxx'x employment with the Company terminates
before the end of the stated term of this Agreement by reason of his death,
then, as soon as practicable thereafter, the Company will pay to his estate an
amount equal to his "Accrued Compensation" (defined below). Xx. Xxxxxxx'x spouse
and covered dependents will be entitled to continue to participate in the
Company's group health plan(s) at the same benefit level at which they
participated immediately before Xx. Xxxxxxx'x death for a period of at least one
year after Xx. Xxxxxxx'x death or, if longer, for the balance remaining in the
stated term of this Agreement at the time of his death, and, thereafter, for
such additional continuation period as may be available under COBRA or under any
post-retirement group health plan or arrangement in which Xx. Xxxxxxx
participated prior to his death. For the purposes hereof, the term "Accrued
Compensation" means, as of any date, the amount of any unpaid salary earned by
Xx. Xxxxxxx through that date, plus a pro rata amount of Xx. Xxxxxxx'x target
annual incentive award for the year in which such date occurs, plus any
-2-
3
additional amounts and/or benefits payable to or in respect of Xx. Xxxxxxx under
and in accordance with the provisions of any employee plan, program or
arrangement under which Xx. Xxxxxxx is covered immediately prior to his death.
(b) Disability. If the Company terminates Xx. Xxxxxxx'x employment
before the end of the stated term of this Agreement by reason of Xx. Xxxxxxx'x
"disability" (defined below), then Xx. Xxxxxxx will be entitled to (1) his
Accrued Compensation through his employment termination date (determined with
regard to Section 4(e)), (2) continuing salary payments (at the rate in effect
at the time his employment terminates), reduced by any amounts payable to him
pursuant to a Company-sponsored long term disability program, during the
one-year period following the termination of his employment, and (3) continuing
participation in the Company's group health plan(s) at the same benefit level at
which he and his covered dependent(s) participated immediately before the
termination of his employment for a period of at least one year after such
termination or, if longer, for the balance remaining in the stated term of this
Agreement at the time of such termination of employment, and, thereafter, for
such additional continuation period as may be available under COBRA or under any
post-retirement group health plan or arrangement in which Xx. Xxxxxxx
participated prior to the termination of his employment by reason of his
disability. For purposes of this Agreement, the term "disability" means the
inability of Xx. Xxxxxxx to substantially perform the customary duties of his
employment for the Company for a period of at least 120 consecutive days by
reason of a physical or mental incapacity which is expected to result in death
or last indefinitely.
(c) Termination by the Company for Cause or Voluntary Termination by
Xx. Xxxxxxx without Good Reason. If the Company terminates Xx. Xxxxxxx'x
employment for "Cause" (defined below) or if Xx. Xxxxxxx voluntarily terminates
his employment without "Good Reason" (as defined in subsection(d) below) before
the end of the stated term of this Agreement, then Xx. Xxxxxxx will be entitled
to receive his Accrued Compensation through the date his employment terminates,
determined without regard to pro rata bonus, and nothing more. For purposes
hereof, the Company may terminate Xx. Xxxxxxx'x employment for "Cause" if (1)
Xx. Xxxxxxx commits a felony involving moral turpitude, or (2) Xx. Xxxxxxx fails
to carry out the duties and responsibilities of his employment due to his
willful gross neglect or willful gross misconduct which cannot be cured or
which, if curable, is not cured within 30 days after receipt of written notice
by the Company and a reasonable opportunity to appeal to the Board (in person or
through a representative), provided that, in either case (1 or 2), Xx. Xxxxxxx'x
conduct results in material harm to the financial condition or reputation of the
Company.
(d) Termination by the Company Without Cause or by Xx. Xxxxxxx for Good
Reason. If Xx. Xxxxxxx'x employment is terminated by the Company without Cause
or by Xx. Xxxxxxx for Good Reason, then Xx. Xxxxxxx will be entitled to receive
(1) Accrued Compensation through the termination date (determined with regard to
Section 4(e)), (2) continued salary for a period of six months after the
termination date (or, if longer, for the balance of the stated term of this
Agreement) at his annual rate of salary in effect immediately prior to the
termination date, (3) a single sum payment in an amount equal to 40% of the
highest annual rate of salary in effect before the termination date (or, if
higher, the highest annual incentive award paid or payable to Xx. Xxxxxxx for
any of the three preceding years (including, for this purpose, employment with
PPC) multiplied by the number of years (including fractions of a year) covered
by the period described in (2), (4) continued participation in the Company's
group health plan(s) at the same benefit level at which he and his covered
dependent(s) participated immediately before the termination of his
-3-
4
employment for a period of at least one year after such termination or, if
longer, for the balance remaining in the stated term of this Agreement at the
time of such termination of employment, and, thereafter, for such additional
continuation period as may be available under COBRA or under any post-retirement
group health plan or arrangement in which Xx. Xxxxxxx participated prior to the
termination of his employment, (5) continued participation for at least one year
or, if longer, for the then balance remaining in the stated term of this
Agreement in the Company's life insurance plans at the same benefit level in
effect immediately prior to the termination date, (6) elimination of all
restrictions, other than those required by law, on any restricted or deferred
stock awards previously granted to Xx. Xxxxxxx and outstanding at the time of
his termination of employment, and (7) immediate vesting of all stock options
previously granted to Xx. Xxxxxxx and outstanding at the time of his termination
of employment. For the purposes hereof, Xx. Xxxxxxx may terminate his employment
for "Good Reason" if:
(A) the Company materially diminishes Xx. Xxxxxxx'x duties,
responsibilities or employment conditions in a manner which is
inconsistent with the provisions hereof or with his status as a senior
executive officer of the Company or which has or reasonably can be
expected to have a material adverse effect on Xx. Xxxxxxx'x status or
authority within the Company;
(B) the Company wilfully fails or refuses to satisfy any of its
compensation obligations under this Agreement or violates the location
covenant set forth in section 5; or
(C) the Company fails to perform or breaches its obligations under any
other material provision of this Agreement and does not correct such
failure or breach (if correctable) within 30 days following notice
thereof by Xx. Xxxxxxx to the Company.
8. No Mitiqation; No Offset. Xx. Xxxxxxx will have no obligation to
seek other employment or to otherwise mitigate the Company's obligations to him
arising from the termination of his employment, and no amounts paid or payable
to Xx. Xxxxxxx by the Company under this Agreement shall be subject to offset
for any remuneration to which Xx. Xxxxxxx may become entitled from any other
source after his employment with the Company terminates, whether attributable to
subsequent employment, self-employment or otherwise.
9. Restrictive Covenants.
(a) Nondisclosure of Confidential Information. Xx. Xxxxxxx acknowledges
that, during the course of his employment with the Company, he has had and will
have access to confidential and proprietary information, documents and other
materials relating to the Company which are not generally known to persons
outside the Company (whether conceived or developed by Xx. Xxxxxxx or others)
and confidential information, documents and other materials entrusted to the
Company by third parties, including, without limitation, financial information,
trade secrets, techniques, know-how, marketing and other business plans, data,
strategies and forecasts, and the substance of arrangements and agreements with
customers, suppliers and others (collectively, "Confidential Information"). Any
Confidential Information conceived or developed by Xx. Xxxxxxx during the period
of his employment will be the exclusive property of the Company. Except as
specifically authorized by the Company, Xx. Xxxxxxx will not (during or after
his employment
-4-
5
hereunder) disclose Confidential information to any third person, firm or entity
or use Confidential Information for his own purposes or for the benefit of any
third person, firm or entity other than (1) as may be legally required in
response to any summons, order or subpoena issued by a court or governmental
agency, or (2) Confidential Information which is or becomes available to the
general public through no act or failure to act by Xx. Xxxxxxx.
(b) Non-solicitation. During employment and for a period of one year
after the termination of his employment, Xx. Xxxxxxx will not, directly or
indirectly, solicit, induce or otherwise attempt to influence any employee of
the Company or any subsidiary or other affiliate thereof to leave employment
therewith.
(c) Remedies. Xx. Xxxxxxx acknowledges and agrees that damages in an
action at law for breach of any of the provisions of this section will be
difficult to determine and will not afford a full and adequate remedy and,
therefore, agrees that the Company, in addition to seeking damages in an action
at law, may seek specific performance and such equitable or other remedies as
may be available for breach of this section, including, without limitation, the
issuance of a temporary or permanent injunction, without the necessity of a
bond. Except as otherwise provided in this section, the provisions of this
subsection (c) shall not be construed as a waiver by Xx. Xxxxxxx of any rights
which Xx. Xxxxxxx may have to offer defenses to any request made by the Company
for injunctive relief.
(d) Survival. The obligations set forth in this section 9 shall survive
the termination of Xx. Xxxxxxx'x employment or service under this Agreement.
10. Litigation Assistance. Xx. Xxxxxxx will cooperate with the Company,
during the term of his employment and thereafter, by making himself reasonably
available to testify on behalf of the Company or any subsidiary or affiliate of
the Company in any action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, and to reasonably assist the Company or any
such subsidiary or affiliate in any such action, suit, or proceeding by
providing information and meeting and consulting with the Board or its
representatives or counsel, or representatives or counsel to the Company or any
such subsidiary or affiliate, as reasonably requested; provided, however, that
the same does not materially interfere with his then current personal or
professional activities. The Company will reimburse Xx. Xxxxxxx, on an after-tax
basis, for all expenses reasonably incurred by him in connection with his
provision of testimony or assistance.
11. Resolution of Disputes. Any controversy or claim arising out of or
relating to this Agreement or any breach or asserted breach hereof, other than
an action or claim seeking injunctive relief under section 9, shall be resolved
by binding arbitration, to be held in St. Louis in accordance with the rules and
procedures of the American Arbitration Association. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. Pending the resolution of any arbitration or court proceeding, the
Company will continue payment of all amounts and benefits due Xx. Xxxxxxx under
this Agreement. All costs and expenses of any arbitration or court proceeding
(including fees and disbursements of counsel) shall be borne by the respective
party incurring such costs and expenses, but the Company shall reimburse Xx.
Xxxxxxx for such reasonable costs and expenses in the event he substantially
prevails in such arbitration or court proceeding.
-5-
6
12. Indemnification. If Xx. Xxxxxxx is made a party, or is threatened
to be made a party, to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of the fact that he
is or was a director, officer or employee of the Company, PPC or any subsidiary
or affiliate thereof or was serving at the request of the Company or any
subsidiary or affiliate as a director, officer, member, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether or not the
basis of such Proceeding is Xx. Xxxxxxx'x alleged action in an official capacity
while serving as a director, officer, member, employee or agent, then the
Company will indemnify Xx. Xxxxxxx and hold him harmless to the fullest extent
legally permitted or authorized by the Company's certificate of incorporation or
bylaws or resolutions of the Company's Board or, if greater, by the laws of the
State of Delaware, against all cost, expense, liability and loss (including,
without limitation, attorney's fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by Xx. Xxxxxxx in connection therewith, except to the extent
attributable to Xx. Xxxxxxx'x xxxxx negligence or fraud, and such
indemnification shall continue as to Xx. Xxxxxxx even if he has ceased to be a
director, member, officer, employee or agent of the Company or other entity and
shall inure to the benefit of Xx. Xxxxxxx'x heirs, executors and administrators.
The Company will advance to Xx. Xxxxxxx all reasonable costs and expenses to be
incurred by him in connection with a Proceeding within 20 days after receipt by
the Company of a written request for such advance. Such request shall include an
undertaking by Xx. Xxxxxxx to repay the amount of such advance if it shall
ultimately be determined that he is not entitled to be indemnified against such
costs and expenses. The provisions of this section shall not be deemed exclusive
of any other rights of indemnification to which Xx. Xxxxxxx may be entitled or
which may be granted to him and shall be in addition to any rights of
indemnification to which he may be entitled under any policy of insurance.
13. Assignment; Binding Nature. The services and duties to be performed
by Xx. Xxxxxxx hereunder are personal and may not be assigned. This Agreement
shall be binding upon and inure to the benefit of the Company, its successors
and assigns and Xx. Xxxxxxx and his heirs and representatives. The Company may
assign this Agreement to a successor in interest, provided that any such
assignee affirmatively adopts and agrees to fulfill all obligations to Xx.
Xxxxxxx hereunder and the Company remains secondarily liable to Xx. Xxxxxxx
therefor.
14. No Impediment to Agreement. The Company represents and warrants
that it is fully authorized and empowered to enter into this Agreement and that
the performance of its obligations under this Agreement will not violate any
agreement between it and any other person, firm or organization. Xx. Xxxxxxx
represents and warrants that there is no legal or other impediment which would
prohibit him from entering into this Agreement or which would prevent him from
performing his duties hereunder.
15. Amendment or Waive. No provision in this Agreement may be amended
unless such amendment is agreed to in writing and signed by Xx. Xxxxxxx and an
authorized officer of the Company. Except as set forth herein, no delay or
omission to exercise any right, power or remedy accruing to any party shall
impair any such right, power or remedy or shall be construed to be a waiver of
or an acquiescence to any breach hereof. No waiver by either party of any breach
by the other party of any condition or provision contained in this Agreement to
be performed by such other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same
-6-
7
or any prior or subsequent time. Any waiver must be in writing and signed by Xx.
Xxxxxxx or an authorized officer of the Company, as the case may be.
16. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
17. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of Xx. Xxxxxxx'x employment to the
extent necessary to the intended preservation of such rights and obligations.
-7-
8
18. Beneficiaries; References. Xx. Xxxxxxx shall be entitled, to the
extent permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Xx. Xxxxxxx'x death by giving the Company written notice thereof. In the event
of Xx. Xxxxxxx'x death or a judicial determination of his incompetence,
reference in this Agreement to Xx. Xxxxxxx shall be deemed, where appropriate,
to refer to his beneficiary, estate or other legal representative.
19. Notices. Any notice given to a party shall be in writing and shall
be deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the party concerned at the address indicated below or to such changed address as
such party may subsequently give such notice of:
If to the Company: Pulitzer Inc.
000 Xxxxx Xxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Secretary
If to Xx. Xxxxxxx: Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxxxx Xxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
20. Withholding. The Company may withhold taxes from any and all
amounts due Xx. Xxxxxxx as may be required to be withheld pursuant to applicable
law.
21. Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of Delaware without reference to
principles of conflict of laws.
22. Entire Agreement. This Agreement contains the entire understanding
and agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
Except as specifically provided in this Agreement, the existence of this
Agreement shall not be interpreted to preclude, prohibit or restrict Xx.
Xxxxxxx'x participation in any other employee benefit or other plans or programs
in which he currently participates.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
PULITZER INC.
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
By: Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
-8-
