EMPLOYMENT AGREEMENT
AGREEMENT made this lst day of January, 1997, by and between CENTURY
COMMUMICATIONS CORP., a corporation organized and subsisting under the laws of
New Jersey, and whose address for the purposes of this Agreement is 00 Xxxxxx
Xxxxxx, Xxx Xxxxxx, XX 00000 (the "Company"), and XXXXX X. XXXXXXXXX, an
individual, residing at 00 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("Employee").
W I T N E S S E T H:
WHEREAS:
A. The Employee is presently employed by the Company in charge of
its accounting and financial functions other than those which are the
responsibility of the chief financial officer of the company.
B. The Company desires that it continue to employ the Employee as
its chief financial officer in charge of its accounting, fiscal and financial
functions and in such other capacities as may be permitted by this Agreement,
and under all of the terms, provisions and conditions set forth herein.
C. Employee is willing to accept such continued employment, and
such other employment as may be provided for herein, all under the terms,
provisions and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth and other good and valuable consideration, the receipt and
adequacy of which is mutually acknowledged, it is agreed by and between the
parties as follows:
1. Representations and Warranties
1.1 Employee represents and warrants that he is not subject to
any restrictive covenants or other agreements or legal restrictions in favor of
any person which would in any way preclude, inhibit, impair or limit his
employment by the Company or the performance of his duties, all as contemplated
herein.
2. Employment
2.1 The Company hereby employs Employee and Employee accepts such
employment as chief financial officer of the Company and in charge of its
fiscal, accounting and financial affairs. In such capacity, Employee shall
supervise and be responsible for administering the fiscal, accounting and
financial activities of the Company, subject to the direction and control of the
chief executive officer of the Company and the Board of Directors of the
Company. At the direction of the chief executive officer or the Board of
Directors of the Company, Employee shall also serve in such other senior
executive and/or administrative capacities with any subsidiaries of the Company
("Subsidiaries" or individually a "Subsidiary", as hereafter defined), as the
Board of Directors or the chief executive of the Company may determine. Without
limitation of the foregoing, Employee agrees to act as chief financial officer
of Centennial Cellular Corp.
2.2 Subject to Employee's election as such by the Board of
Directors and/or the Board of Directors of one or more Subsidiaries, Employee
agrees to act and serve as an officer of the Company and all applicable
Subsidiaries and, if duly elected, agrees further to serve and act as a director
of the Company and all applicable Subsidiaries. Without limitation of the
foregoing, employee agrees to acts as a Director and as senior Vice President of
Centennial Cellular Corp. Employee agrees to adhere to all fiduciary duties and
responsibilities inherent in any such office and as an officer of any of the
Subsidiaries and, if elected, as a director of the Company and of any
Subsidiaries, and to comply with all applicable laws relating to same.
3. Place of Employment
3.1 Employee shall render his services where and as required by
the Company, it being understood and agreed, however, that Employee's base of
operations shall be the greater Fairfield County, Connecticut and/or Westchester
County, New York areas and that Employee shall not be required to render his
services on a permanent basis outside of said areas. In conformance with the
foregoing and not in limitation thereof, Employee agrees to take such trips
outside said areas from time to time as shall be consistent with or reasonably
necessary in connection with his duties.
4. Term
4.1 The term of this Agreement (the "Term") shall be three
consecutive years commencing January 1, 1997 and expiring on December 31, 1999.
4.2 In the event this Employment Agreement has not then been
terminated, the parties hereto agree that within the last six months of the
Term, they shall meet to negotiate the terms and provisions relating to a
renewal or extension of this Agreement, it being understood and agreed that
nothing herein shall obligate either of the parties to come to agreement with
respect to any such renewal or extension.
5. Compensation
5.1 Subject to prior termination, as compensation for all
services rendered and to be rendered by Employee hereunder and the fulfillment
by Employee of all of his obligations herein, the Company shall pay Employee a
base salary (the "Base Salary") at the rate of $250,000 per year for each year
of the Term on such days as the Company normally pays its employees and subject
to such withholdings as may be required by law. The Base Salary for each of the
second and third years of the Term (the "Applicable Year") shall be increased by
the percentage increase in the Consumer Price Index prepared by the United
States Labor Department for the United States as a whole, or equivalent measure
of increase in the cost of living if such Consumer Price Index is not then being
issued (hereafter sometimes referred to as the "Consumer Price Index"), for the
first calendar month in such Applicable Year over and above such Consumer Price
Index for the first full calendar month of the year immediately preceding the
commencement of the Applicable Year.
5.2 Nothing herein shall prevent or preclude the Board of
Directors of the Company or the applicable committee of the Board of Directors,
in its sole discretion, and from
time to time, from awarding a bonus or bonuses to Employee for his service as an
Employee and/or from awarding or granting Employee (i) options to acquire shares
of stock in the Company or (ii) shares of stock in the Company or (iii) any
other incentive or stock related awards in addition to Base Salary. In
exercising its discretion with respect to whether a bonus should be awarded and
the amount thereof, the Board or the applicable Committee may consider among
other factors, the contribution of Employee (i) to the growth in revenues, cash
flow and subscribers of the Company and those subsidiaries to or for which
Employee renders service, (ii) in connection with acquisitions, offering of
securities and various financings, and (iii) to the operations of the Company
and its various subsidiaries as an entity.
6. Reimbursement for Business Expenses
Fringe Benefits
6.1 The Company agrees that all reasonable expenses incurred by
Employee in the discharge and fulfillment of his duties for the Company, as set
forth in Section 2, will be reimbursed or paid by the Company upon written
substantiation therefor signed by Employee, itemizing said expenses and
containing all applicable vouchers. Without limitation of the foregoing the
Company shall provide Employee with an automobile for use by Employee in the
performance of his duties and for the maintenance thereof. The automobile shall
be of the type presently being provided to Employee by the Company and shall be
no more than three years old.
6.2 The Company agrees that it will cause Employee to be insured
under such group life, medical, major medical and disability insurance that the
Company may maintain and keep in force from time to time during the Term for the
benefit of all of the Company employees, subject to the terms, provisions and
conditions of such insurance and the agreements with underwriters relating to
same. It is understood and agreed that in its discretion the Company, from time
to time may terminate or modify any or all of such insurance without obligation
or liability to Employee.
7. Exclusivity
7.1 During the Term, employee agrees to devote his services and
his best energies and abilities, exclusively, to the business and activities of
the Company, including any Subsidiaries, and not engage or have an interest in
or perform services for any other business or entity of any kind or nature;
provided, however, that nothing herein shall prevent Employee from investing in
(but not rendering services to) other businesses (other than for chargeable
organizations, provided same does not interfere with Employee's performance of
his duties hereunder) which are not competitive in any manner with the business
then being conducted by the Company or any of its Subsidiaries, or in investing
in (but not rendering services to) other businesses which are competitive in any
manner with the business then being constructed by the Company, provided in the
latter instance, that (i) the shares of such business are listed and traded over
either a national securities exchange or in the over-the-counter market, and
(ii) employee's stock interest or potential stock interest (based on grants,
options, warrants, or other arrangements or agreements then in existence) in any
such business which is so traded (together
with any and all interest, actual and potential, of all members of Employee's
immediate family) is not a controlling or substantial interest and specifically
does not exceed one percent of the issued and outstanding shares or a one
percentage interest of or in such business.
8. Uniqueness
8.1 Employee agrees that his services hereunder are special,
unique and extraordinary and that in the event of any material breach or
attempted material breach of this Agreement by Employee including, without
limitation, the provisions of Section 9 and 10, the Company will sustain
substantial injury and damage, and Employee hereby consents and agrees that, in
the event of breach hereof, the Company shall be entitled to injunctive relief
against Employee or any third party to prevent or in respect of any such breach,
in addition to such other rights or remedies available to it. Employee's said
consent and agreement shall not survive the expiration date set forth in Section
4.1 (December 31, 1999) except as same relates to any of Employee's obligations
pursuant to Section 9.1 and 10.1 hereof.
9. Trade Secrets
9.1 Employee acknowledges that his employment hereunder will
necessarily involve his understanding of and access to certain trade secrets and
confidential information pertaining to the businesses and activities of the
Company and its Subsidiaries. Accordingly, Employee agrees that during the
period of employment and at all times thereafter, he will not disclose to any
unauthorized third party any such trade secrets or confidential information and
will not (other than in connection with carrying out his duties) for any reason
remove or retain
without the express consent of the Company any figures or calculations, letters,
papers, records or other information of a type likely to be regarded as
confidential. The provisions of this Section shall survive the termination, for
any reason, of this Agreement or the Employee's employment.
10. Inventions, Creations
10.1 All right, title and interest of every kind and nature
whatsoever in and to inventions, patents, trademarks, copyrights, films,
scripts, ideas, creations, intellectual property and literary, intellectual and
other properties furnished to the Company or any of its Subsidiaries and/or used
in connection with any of the activities of the Company or any of its
Subsidiaries, or with which employee is connected or associated in connection
with the performance of his services, shall as between the parties hereto be,
become and remain the sole and exclusive property of the Company or any of its
Subsidiaries, as the case may be, for any and all purposes and uses whatsoever,
regardless of whether the same were invented, created, written, developed,
furnished, produced or disclosed by Employee or by any other party, and Employee
shall have no right, title or interest of any kind or nature therein or thereto,
or in any results and proceeds therefrom. Employee agrees during and after the
term hereof to execute any and all documents which the Company may deem
necessary and appropriate to effectuate the provisions of this Section 10.1 and,
further, that the provisions of this Section shall survive the termination, for
any reason, of this Agreement or Employee's employment.
11. Death - Permanent Incapacity
11.1 The death of Employee shall work an immediate termination of
this Agreement, in which event no additional Base Salary shall be paid to
Employee except that the payments of Base Salary, to which Employee would have
been entitled to receive were he not deceased and were he fully performing his
obligations hereunder, shall continue to be paid to his Estate or legal
representatives during the balance of the Term.
11.2 In the event Employee suffers a disability which prevents
him from performing his services hereunder (herein called "Disability"), and in
the event such Disability continues for longer than 90 consecutive days or 120
days in any 12-month period, Employee shall be deemed to have suffered a
Permanent Incapacity, in which event the Company shall have the right to
terminate this Agreement upon not less than fifteen days' notice to Employee,
and this Agreement shall terminate on the date set forth therefor in said
notice.
Upon termination of this Agreement by reason of such Permanent
Incapacity, Employee's Base Salary shall continue to be paid to Employee or his
legal representatives during the greater of (i) the balance of the Term and (ii)
a period of not less than 12 months.
11.3 In the event there is a dispute between the parties as to
whether or not Employee has suffered a Permanent Incapacity, same shall be
determined by an impartial physician located in the City of New York and agreed
upon by the parties or, failing agreement within 10 days of a written request
therefor by either of the parties to the other, then such a physician as may be
designated by the then acting President of the New York Academy of
Medicine or if he fails or is unable to designate such impartial physician, then
one designated by the Chief of Medicine at one of the following hospitals
located in New York City and selected by the Company: (i) New York Hospital,
(ii) Columbia Presbyterian Hospital, (ii) New York University (or Tisch)
Hospital, (iv) Mt. Sinai Hospital, and if no such hospital shall designate such
physician, as designated by the American Arbitration Association. The
determination of any such physician shall be final and binding upon the parties
hereto. In the event any of said hospitals is merged with or into, or is
acquired by another of said hospitals, the surviving hospital in such merger or
acquisition shall be deemed to be one of the designated hospitals.
12. Termination
12.1 In addition to Termination pursuant to Section 11,
Employee's employment hereunder may be terminated for "cause". "Cause" for
purposes of this Agreement shall mean the following:
(i) alcoholism or drug addition materially affecting Employee's
performance, (ii) conviction for a felony involving moral turpitude,
(iii) failure to comply within a period of ten business days with a
reasonable directive of the chief executive officer, or the Board of
Directors of the Company relating to Employee's duties or Employee's
performance and consistent with Employee's position, after written
notice that such failure will be deemed to be "cause", to the extent
such failure can be cured within such ten business days and if not so
curable, fails to commence curing during said ten day period and
diligently pursue the curing of same until cured, (iv) gross neglect or
gross
misconduct of Employee in carrying out his duties under this Agreement,
resulting, in either case, in material economic harm to the Company,
unless Employee believed in good faith that such act or nonact was in
the best interests of the Company and, (v) misappropriation of corporate
assets or corporate opportunity or other act of dishonesty or breach of
fiduciary obligation to the Company.
12.2 In the event the Company terminates this Agreement and
Employee's employment other than for "cause", and other than for death or
disability, Employee shall be entitled, in addition to whatever other rights and
remedies which may be available to him, to the following, subject to the other
applicable provisions of the Company's 1985 Employee Stock Option Plan the
Company's 1992 Management Equity Incentive Plan and other applicable plan: (i)
the right to exercise any stock option in full, whether or not fully
exercisable, for the remainder of the original term of such option, (ii) the
balance of payments of Base Salary, to be paid at the times they would otherwise
have become payable to Employee pursuant to the terms of this Agreement, (iii) a
cash bonus payable for each remaining year of the term (or fraction of year if
termination occurs during a particular year of the term and a bonus has not
previously been paid to Employee for such year) in an amount equal to the most
recently paid cash bonus paid to Employee. Additionally any restrictions on
shares of stock previously issued to Employee shall be deemed inoperative and of
no further force and effect.
12.3 Employee shall be deemed to have been terminated without
cause if (i) he is not elected a Senior Vice President of the Company during the
term, and is not designated a
Company's Chief Financial Officer, (ii) his Base Salary is reduced (iii) is
relocated in violation of Section 3.1 or (iv) there has been a material
diminution in the Employee's duties or the assignment to Employee of duties
which are materially inconsistent with his duties or which materially impair the
Employee's ability to function as a Senior Vice President and Chief Financial
Officer.
13. Vacation
13.1 Employee shall be entitled to a vacation of four weeks
duration in the aggregate during each year of the Term at times reasonably
agreeable to both Employee and the Company, it being understood that any portion
of such vacation not taken in such year shall not be available to be taken
during any other year.
14. Insurance
14.1 In addition to insurance referenced in Section 6.2, Employee
agrees that the Company or any Subsidiary may apply for and secure and/or own
and/or be the beneficiary of insurance on the Employee's life or disability
insurance (in each instance, in amounts determined by the Company), and Employee
agrees to cooperate fully in the applying and securing of same, including the
submission to various physical and other examinations and the answering of
questions and furnishing of information as may be required by various insurance
carriers. However, nothing contained herein shall require the Company to obtain
any such life or disability insurance.
15. Miscellaneous
15.1 The Company shall have the right to assign this Agreement
and to delegate all duties and obligations hereunder to any successor,
affiliated or parent company or to any person, firm or corporation which
acquires the Company or substantially all of its assets, or with or into which
the Company may consolidate or merge. This Agreement shall be binding upon and
inure to the benefit of the permitted successors and assigns of the Company.
Employee agrees that this Agreement is personal to him and may not be assigned
by him.
15.2 This Agreement is being delivered in the State of
Connecticut and shall be construed and enforced in accordance with the laws of
such State applicable to contracts made and fully to be performed therein, and
without any reference to any rules of conflicts of laws.
15.3 Except as may herein otherwise be provided, all notices,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or if mailed,
first class postage prepaid, registered or certified mail, return receipt
requested, or if sent by telecopier or overnight express delivery service, (a)
to Employee at his address set forth on the facing page hereof or at such other
address as Employee may have notified the Company, sent by registered or
certified mail, return receipt requested, or by telecopier or overnight express
delivery service, or (b) if to the Company, at its address set forth on the
facing page hereof, attention: Chairman of the Board, or at such other address
as the Company may have notified Employee in writing sent by registered or
certified mail, return receipt requested or by telecopier or overnight express
delivery service, and with a copy to
Xxxxx, Xxxxxxxxxx & Xxxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 10036
(Attention: Xxxxx X. Xxxxxxxxxx, Esqs.). Notice shall be deemed given (i) upon
personal delivery, or (ii) on the second business day immediately succeeding the
posting of same, prepaid, in the U.S. mail, (iii) on the date sent by telecopy
if the addressee has compatible receiving equipment and provided the transmittal
is made on a business day during the hours of 9:00 A.M. to 6:00 P.M. of the
receiving party and if sent on other times, on the immediately succeeding
business day, or (iv) on the first business day immediately succeeding delivery
to the express overnight carrier for the next business day delivery.
15.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Each party shall deliver
such further instruments and take such further action as may be reasonably
requested by the other in order to carry out the provisions and purposes of this
Agreement. This Agreement represents the entire understanding of the parties
with reference to the transaction set forth herein and neither this Agreement
nor any provision thereof may be modified, discharged or terminated except by an
agreement in writing signed by the party against whom the enforcement of any
waiver, change, discharge or termination is sought. Any waiver by either party
of a breach of any provision of this Agreement must be in writing and no waiver
of a particular breach shall operate as or be construed as a waiver of any
subsequent breach thereof.
15.5 "Subsidiaries" or "Subsidiary" shall include and mean any
corporation, partnership or other entity 50% or more of the then issued and
outstanding voting stock is owned directly or indirectly by the Company in the
instance of a Corporation, or 50% or more of the interest in capital or in
profits is owned directly or indirectly by the Company in the instance of a
partnership and/or other entity, or any corporation, partnership, venture or
other entity, the business of which is managed by the Company or any of its
Subsidiaries.
IN WITNESS WHEREOF, the parties hereto have executed and have caused
this Agreement to be executed as of the day and year first above written.
CENTURY COMMUNICATIONS CORP.
By: /s/ Xxxxxxx Xxx
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Its Chairman of the Board
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------
XXXXX X. XXXXXXXXX
