EXHIBIT 10.1
EMPLOYMENT, NONSOLICITATION
AND ARBITRATION AGREEMENT
This Employment, Confidentiality, Nonsolicitation and Arbitration
Agreement ("Agreement") is made effective as of March 1, 2001 (the "Effective
Date"), between HBC Management Company, Inc. ("Employer") and Xxxx Xxxxx
("Employee").
This Agreement is made in consideration of the parties' mutual desire
to enter into an employment relationship and the parties' recognition of
Employer's need to protect its legitimate business interests including its
confidential information and trade secrets, public image, market share, business
relationships, customer information and goodwill. In consideration of the mutual
promises set out in this Agreement and for other good and valuable
consideration, Employer and Employee agree to the following:
1. EMPLOYMENT. Employer hereby employs Employee and Employee accepts such
employment as of the Effective Date for the compensation and upon the
terms and conditions set forth in this Agreement.
2. COMPENSATION.
(a) BASE SALARY.
During the Term of Employment (as hereinafter defined), subject to
the conditions hereinafter set forth, as full compensation for all
services to be rendered pursuant to this Agreement, Employer shall
pay to Employee a salary, as set forth on Exhibit A attached
hereto, payable semi-monthly ("Base Salary"). The Employee's Base
Salary shall be reviewed by Employer not less frequently than on
an annual basis, and may be increased at Employer's sole
discretion. It is understood that modifications of Employee's Base
Salary, as determined by the sole discretion of Employer, shall be
based on factors including, but not limited to: (i) an evaluation
of Employee's performance, (ii) achievement of established budget
goals that are objectively measured, reasonable and mutually
agreed upon, (iii) a change in business conditions, (iv) a change
in Employee's performance, (v) a change in Employer's financial
condition, or (vi) Employer increasing Employee's duties to
include management of additional stations. The Base Salary paid to
Employee shall be payable in accordance with Employer's general
payroll practices, less such deductions or withholdings as may be
required or authorized by applicable law.
(b) PROFIT SHARING
Each year during the Term of Employment, Employer agrees to pay
Employee, if eligible, Profit Sharing in accordance with the
criteria and under such terms and conditions as set forth on
Exhibit A attached hereto, less applicable withholdings or
deductions. The Profit Sharing shall not be considered accrued or
earned until paid
(c) DISCRETIONARY BONUS.
Each year during the Term of Employment, Employer agrees to pay
Employee, if eligible, a
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Bonus in accordance with the criteria and under such terms and
conditions as set forth on Exhibit A attached hereto, less
applicable withholdings or deductions. The Bonus shall not be
considered accrued or earned until paid.
(d) ADDITIONAL BENEFITS.
During the Term of Employment, and subject to the right of
Employer to amend or terminate any employee benefit plan, and
further subject to Employer's policies, procedures and plans
generally applicable to full-time, regular, exempt employees,
Employee shall be entitled to (i) vacation and leave benefits,
(ii) participation in medical and dental plans, and other employee
and/or group benefit plans, subject to the restrictions of those
plans, (iii) reimbursement of pre-approved reasonable and
necessary business expenses incurred in connection with the
performance of Employee's duties in the normal course of business
of Employer, and (iv) any other benefit that Employer offers to
comparable members of management.
(e) CONFIDENTIALITY OF COMPENSATION.
Absent Employer's written consent and unless otherwise prohibited
by state law, Employee agrees not to discuss or disclose his
compensation with any current, former or prospective employee, any
customer, competitor, or any individual employed in the
broadcasting industry.
3. DUTIES OF EMPLOYEE.
(a) DESCRIPTION OF DUTIES.
Employee shall be employed in the position of Senior Vice
President and Chief Operating Officer. The services to be rendered
by Employee hereunder shall include, without limitation and
subject to modification based on Employer's sole discretion, all
services customarily rendered by persons engaged in the same or a
similar capacity in the radio broadcast industry and such other
services as Employer reasonably may require of Employee from time
to time. Employee shall render Employee's services during the term
of this Agreement when and where required by Employer,
conscientiously, and to the full limit of Employee's ability,
subject in all respects to the supervision, control and direction
of Employer. Employer's judgment shall be final and controlling in
all matters including, without limitation, matters of artistic
taste and business judgment.
(b) CONDUCT.
Employee shall exclusively devote his full time, attention and
best efforts in performing his duties as Senior Vice President and
Chief Operating Officer and in promotion of the affairs and
interests of Employer. Employee agrees to at all times perform
faithfully and to the best of his ability, experience and talent
all of the duties that may be required of him under this Agreement
and conduct himself in a manner to enhance the public image and
acceptance of Employer and its programming.
Employee agrees further to comply at all times with all rules and
regulations of applicable governmental agencies and with the
standards, policies, instructions, directions, rules and
regulations which may from time to time be established by
Employer, related to the
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performance of his duties as Senior Vice President and Chief
Operating Officer. In addition, Employee shall comply with and
conform to all policies, rules and regulations of Employer's current
version of the EMPLOYMENT POLICIES AND BENEFITS HANDBOOK or any
other document setting forth Employer's policies, rules and
regulations, except to the extent they are inconsistent with the
terms of this Agreement in which case this Agreement shall control.
(c) EXCLUSIVITY OF SERVICE.
Employee agrees to devote all of his working time, best efforts
and attention to the affairs and interests of Employer, and
Employer shall be entitled to Employee's services and the benefits
of Employee's skills and efforts as a full-time employee. Employee
shall not, directly or indirectly, render any service of a
business, commercial or professional nature to any other person or
organization, whether for compensation or otherwise, without the
prior written consent of Employer.
(d) ABSENCE OF RESTRICTIONS.
Employee represents and warrants to Employer that he knows of no
reason that he cannot legally enter into this Agreement and
perform the services described hereunder for Employer's benefit.
Specifically, Employee represents that he is not a party to any
existing agreement containing a noncompetition provision or any
other restrictive agreement with respect to (i) the nature of any
services of business which he is entitled to perform or conduct
under this Agreement, (ii) the disclosure or use of any
information which directly or indirectly relates to the nature of
the business of Employer or the services to be rendered by
Employee under this Agreement, or (iii) any other restriction
which would restrict his employment by Employer or the performance
of his duties under this Agreement.
(e) FORMER EMPLOYER'S CONFIDENTIAL INFORMATION.
Employee agrees that he will not improperly use or disclose any
confidential information or trade secrets of any former employer
or other person or entity and that he will not bring onto the
premises of Employer any unpublished document or proprietary
information belonging to any such former employer, person or
entity unless consented to in writing by such former employer,
person or entity.
4. DURATION OF EMPLOYMENT. The term of Employee's employment shall
continue pursuant to this Agreement from the Effective Date for a
period of three (3) years ("Initial Term of Employment"), subject to a
later extension or earlier termination under the provisions of this
paragraph ("Term of Employment").
(a) OPTIONS TO EXTEND.
Employer shall have two irrevocable, exclusive and consecutive
options to extend the Initial Term of Employment for two
additional periods of one year each, on the same terms and
conditions as set forth herein. Each option must be exercised, if
at all, by 60-day written notice to Employee before the expiration
of the Initial Term or the then current Term of Employment.
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(b) RIGHT OF FIRST REFUSAL.
Notwithstanding Employer's rights under sub-paragraphs 4 (a), (c),
(d) and (e) and Employee's obligations under paragraph 9, Employee
agrees that Employer will have the exclusive option to further
extend the Term of Employment if Employee receives a bona fide
offer from a third party to render services in connection with the
radio broadcasting industry in any of the markets in which
Employer or any of its affiliates operates. Employee shall provide
written notice to Employer of his intent to accept such offer of
employment, and such notice is required to include all of the
financial terms and conditions of the offer made to Employee which
Employee is willing to accept, the identity of the third party
offeror and inclusion of any written documents of the third party
offer received by Employee. If Employer makes an offer to Employee
on financial terms and conditions at least as favorable to
Employee as the financial terms and conditions of said third party
offer, Employee must accept the Employer's offer or refrain from
directly or indirectly engaging in or being employed by any
Spanish Language radio programming business, Spanish Language
radio station, or Spanish Language television station whose signal
is broadcast in the same market as the market covered by
Employer's offer. If Employer does not make an offer to Employee,
Employee must still comply with the nonsolicitation restrictions
contained in sub-paragraphs (a) and (b) of paragraph 9, but will
be free to accept the offer in the market that has been disclosed
to Employer.
(c) TERMINATION WITHOUT CAUSE.
Employer shall have the right to terminate Employee's employment
under this Agreement, at Employer's election in its sole
discretion, without Just Cause, at any time, upon one
hundred-eighty (180) days written notice or upon payment of
180-days of Base Salary plus a pro rata portion of estimated
bonuses for the 180-day period following termination (either a
lump sum payment or six equal semi-monthly payments, at Employer's
option) in lieu of notice, to Employee, but in either case
Employer shall also (1) continue group medical coverage for
Employee and his family at Employer's expense for a period of six
months following the date of termination (after which Employee may
continue such coverage at his expense under COBRA) and; (2)
accelerate the vesting of all outstanding stock options previously
granted to Employee to the extent that such options would have
vested if Employee's employment had continued for 180 days
following the date of termination.
(d) TERMINATION BY DEATH OR DISABILITY.
Employee's employment shall terminate automatically upon the death
or disability of Employee. For purposes of this Agreement,
disability means Employee's inability, with or without reasonable
accommodation in accordance with the Americans With Disabilities
Act, whether a physical or mental disability, to substantially
perform his services hereunder (i) for a period of four
consecutive months, or (ii) for shorter periods aggregating six
months during any twelve month period. If Employer and Employee
are unable to agree whether Employee is disabled, the question
will be decided by a licensed physician to be designated and paid
for by Employer, subject to the approval of Employee, which
approval may not be unreasonably withheld, whereby the designated
physician's determination is agreed by both parties to be final
and binding.
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(e) TERMINATION FOR JUST CAUSE.
Employer shall have the right to terminate the employment of
Employee under this Agreement, without advance notice, for "Just
Cause," which for purposes of this Agreement shall mean the
occurrence of any of the following:
i. The neglect or failure of Employee to perform his job
duties satisfactorily;
ii. The conviction or pleading of nolo contendre of Employee
for a felony or a misdemeanor involving fraud,
embezzlement, theft, dishonesty, or any act of moral
turpitude;
iii. Any material breach of any of the terms of this Agreement;
iv. Any unlawful treatment of Employer's employees by Employee;
v. Any act of dishonesty, misconduct, disloyalty, fraud, gross
negligence, insubordination or misappropriation of
confidential information;
vi. A failure to follow any instructions, policies or rules
from or by Employee's supervisor including the policies
contained in Employer's current EMPLOYMENT POLICIES AND
BENEFITS HANDBOOK;
vii. The abuse of alcohol or use of any illegal drug;
viii. The violation of any state or federal law, rule or
regulation; or
ix. Any other conduct that is detrimental to Employer's
business or reputation and/or exposes Employer to liability
based upon the act(s) of Employee.
Employer, however, will provide Employee with 30-days in which to
cure any violation of items 4 (e) i, iii, iv, vi, vii, viii, and
ix. Employee will receive written notification from Employer
describing the specific area of non-performance or violation.
Should the nonperformance or violation not be remedied to
Employer's reasonable satisfaction, Employee will be terminated at
the end of this 30-day period without any additional notice.
(f) RESIGNATION BY EMPLOYEE
Employee shall also have the right to terminate his employment
voluntarily under this Agreement by giving Employer at least
ninety (90) days written nice of resignation.
5. PAYMENT UPON TERMINATION OF EMPLOYMENT. In the event of the termination
of Employee's employment under sub-paragraphs 4(d) or (e) of this
Agreement, Employer's obligations under paragraph 2 of this Agreement
shall cease without further responsibility by Employer to Employee or
Employee's legal representative, other than for the payment of accrued
Base Salary through the date of termination, the payment or provision
of other accrued benefits required by law, and the coverage, benefits
or provision of any employee benefit plan as required by law.
Additionally, in the event of the termination of Employee's employment
under subparagraph 4(d) of this Agreement, all stock options granted to
Employee prior to such termination shall fully vest.
6. PROPERTY RIGHTS. All recordings, programming, commercials, data, copy,
marketing materials, business plans, customer lists, financial
information, research results, and written materials, whether or not
generated or created by Employee during the term of this Agreement, are
the exclusive property of Employer. All documents or other tangible
property and concepts or inventions or other intangible property
relating in any way to the business of Employer which are conceived of
or generated by Employee or come into Employee's possession during
employment shall be and remain the property of Employer. Employee
hereby assigns and irrevocably grants
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to Employer any and all of his rights in such property. Employee must
return all such documents and tangible property to Employer on
termination of employment or at such earlier time as Employer may request.
7. NO OBLIGATION TO ACCEPT EMPLOYEE'S SERVICES. Notwithstanding any other
provision of this Agreement, Employer shall have no obligation to
actually utilize or continue to use Employee's services. Employer's
obligations to Employee under this Agreement shall be fully performed
by the payment to Employee of the Base Salary provided for in this
Agreement with respect to which Employer is obligated to pay Employee
during the Term of Employment, subject to all of Employer's rights
hereunder.
8. CONFIDENTIALITY.
(a) DEFINITION OF CONFIDENTIAL INFORMATION.
The term "Confidential Information" as used in this Agreement
shall include all ideas, materials, information, data, records,
trade secrets, methods or plans developed, used or employed by
Employer or any of its radio stations, affiliates or customers and
not generally known to the public. Confidential Information also
includes, without limitation, all information regarding Employer,
or any of its radio stations, affiliates or customers with regard
to their respective financial affairs, accounts, marketing plans,
operations, policies, procedures, strategies, program formats,
plans for development of new services and expansion into new areas
or markets, internal operations, business strategies, budgets,
pricing, products, properties, processes, rate structure,
services, listening audience information, customer or advertiser
lists and specific information relating to needs, preferences, and
pricing structure, sales and promotional programs targeting direct
and agency accounts, information regarding prospective and
strategic alliances and acquisitions, commission structure,
employee names and addresses, employment histories, compensation,
placements, or any other customer and employee information
contained in Employer's files, together with all written, graphic,
recorded and other materials relating to all or any of the same;
provided, however, that Confidential Information shall not include
information which properly and lawfully has become generally known
to the public other than as a result of the act or omission of
Employee.
(b) IMPORTANCE OF CONFIDENTIAL INFORMATION.
Employee acknowledges that in and as a result of his employment by
Employer, he will be making use of, acquiring, accessing and/or
adding to Confidential Information. Employee recognizes that
access to and knowledge of this information is essential to the
performance of Employee's duties hereunder. Employee acknowledges
and agrees that Employer's Confidential Information is a valuable,
special and unique asset of Employer and such Confidential
Information is extremely important in the highly competitive radio
broadcast industry. Employee acknowledges that the disclosure of
any Confidential Information may cause imminent harm and
substantial, irreparable injury, including loss of profit and
other damages such as loss of goodwill and a decrease in market
share which are difficult to calculate. Employee acknowledges that
Employer retains a proprietary interest in its Confidential
Information that persists beyond the termination of Employee's
employment by Employer. Employee further acknowledges that the
preservation and protection of the Confidential Information is an
essential part of Employee's employment by and business
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relationship with Employer and that Employee has a duty of
fidelity and trust to Employer in handling the Confidential
Information.
(c) NON-DISCLOSURE OR MISUSE.
As a material inducement to Employer to enter into this Agreement
and pay Employee the Base Salary as set forth on Exhibit A
attached hereto, Employee covenants and agrees that he shall not,
at any time (whether during the term of this Agreement or after
expiration or termination), without the prior written consent of
Employer in each instance or as otherwise may be required by law
or legal process, disclose to any person or entity any
Confidential Information, or utilize such Confidential Information
for Employee's own benefit, or for the benefit of any third party,
until such time, if ever, as such Confidential Information becomes
general public knowledge (unless caused by any act of Employee in
violation of this Agreement). Employee will take all reasonable
steps necessary, or reasonably requested by Employer, to ensure
that all Confidential Information is kept confidential for the use
and benefit of Employer. Further, all memoranda, records or other
documents constituting Confidential Information compiled by, made
available to or under the control of Employee during the Term of
this Agreement, relating to Employer, shall be the property of
Employer and shall be promptly delivered to Employer on the
termination of Employee's employment or at any other time upon the
request of Employer. Employee agrees he will not make or retain
any copy of or extract from such materials.
9. NONCOMPETITION AND NONSOLICITATION AGREEMENTS. Employee acknowledges
and agrees that information, including the Confidential Information, he
has acquired and will acquire during the course of his employment will
enable Employee to irreparably injure Employer if Employee should
engage in any business that is competitive with the business conducted
by Employer. Employee also acknowledges that his position is one which
requires public involvement with Employer, thus the position requires
loyalty to preserve a positive public image of Employer and to prevent
injury to Employer by participating in a competing business. Therefore,
in consideration of the compensation and benefits provided to Employee
and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, Employee hereby agrees as follows:
(a) NONCOMPETITION.
During the Term of this Agreement and for a period of one (1) year
following the termination of Employee's employment with Employer
for any reason, excluding only termination without cause, Employee
will not, directly or indirectly, be employed by any other Spanish
language radio programming business, Spanish language radio
station, Spanish language television station, or Spanish language
internet-based entertainment content provider, whose signal or
programming is available by over-the-air broadcast, subscription,
or via the internet, within the Total Survey Area (TSA) any of the
markets in which Employer operates, as defined by The Arbitron
Company in its Radio Market Reports.
(b) NONSOLICITATION OF EMPLOYEES.
During the Term of this Agreement and for a period of one (1) year
following the termination of Employee's employment with Employer
for any reason, including termination without cause, Employee
shall not, on Employee's own behalf or on behalf of any other
person or entity, hire, solicit, seek to hire, or offer employment
to any person who is, during such time
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frame, an employee of Employer or in any other manner attempt,
directly or indirectly, to influence, induce, or encourage any
employee of Employer to leave the employment of Employer.
(c) NONSOLICITATION OF BUSINESS RELATIONSHIPS.
During the Term of this Agreement and for a period of one (1) year
following the termination of Employee's employment with Employer
for any reason, including termination without cause, Employee will
not, within the Total Survey Area (TSA) of any of the markets in
which Employer operates, as defined by The Arbitron Company in its
Radio Market Reports, directly or indirectly solicit Employer's
customers, for the purpose of engaging in any business which is
the same as or similar to the business in which Employer is
engaged. For purposes of this Agreement, the term "customers"
means all persons or entities with whom Employee has, during the
period of Employee's employment with Employer, had contact with by
virtue of Employee's position with Employer, and to whom Employer
or any of its radio stations or affiliates has sold any product or
service, whether or not for compensation, within a period of one
year prior to the time Employee ceases to be employed by Employer.
(d) REASONABLENESS OF RESTRICTIONS.
Employee has carefully read and considered the provisions of this
paragraph 9, and having done so, agrees that the restrictions set
forth herein, including, but not limited to, the time period of
restriction, the geographic areas of restriction, and the scope of
the restriction are fair and reasonable, are supported by
sufficient and valid consideration, and these restrictions do not
impose any greater restraint than is necessary to protect the
goodwill and other legitimate business interests of Employer and
its affiliated entities, officers, directors, shareholders and
other employees. Employee acknowledges that these restrictions
will not prevent him from obtaining gainful employment in
Employee's occupation or field of expertise or cause him undue
hardship; that there are numerous other employment and business
opportunities available to him that are not affected by these
restrictions; and that Employee's ability to earn a livelihood
without violating such restrictions is a material condition to
employment with Employer.
(e) NOTIFICATION.
Employee agrees that Employer may notify any person or entity
employing Employee or evidencing an intention of employing
Employee of the existence and provisions of this Agreement.
10. COMMUNICATIONS ACT. Reference is made to Section 508 of the Federal
Communications Act which provides, in part, as follows:
"[A]ny person, who in connection with the production or
preparation of any program or program matter which is intended
for broadcasting over any [radio] stations, accepts or agrees
to accept, or pays or agrees to pay, any money, services or
other valuable consideration for the inclusion of any matter
as a part of such program or program matter, shall, in advance
of such broadcast, disclose the fact of such acceptance or
payment or agreement to the payee's employer, or to the person
for whom such
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program or program matter is being produced, or to the license
of such station over which such program is broadcast. [A]ny
person who supplies to any other person any program or program
matter, which is intended for broadcasting over any [radio]
station shall, in advance of such broadcast, disclose to such
other person any information of which he has knowledge, or which
has been disclosed to him, as to any money, service or other
valuable consideration which any person has paid or accepted, or
has agreed to pay or accept, for the inclusion of any matter as
a part of such program or program matter."
Employee acknowledges that Employee is familiar with the requirements
of Section 508 of the Federal Communications Act and is aware that the
violation of any of the provisions thereof constitutes a criminal
offense. Employee represents and warrants that Employee has not
violated and will not violate any of the provisions of said Section
508, and has not done and will not do any act which would require
disclosure pursuant to said Section 508.
11. COURT'S RIGHT TO REFORM RESTRICTIONS. The parties have attempted to
limit Employee's right to Employer's property and to use Employer's
information, and Employee's right to solicit only to the extent
necessary to protect Employer from unfair competition. However, should
a court of competent jurisdiction determine that the scope of the
covenants contained in paragraphs 8 and 9 exceeds the maximum
restrictiveness such court deems reasonable and enforceable, the
parties intend that the court should reform, modify and enforce the
provision to such narrower scope as it determines to be enforceable
under the circumstances existing at that time.
12. SEVERABILITY. If any provision, paragraph or subparagraph of this
Agreement is held by any court to be void or unenforceable in whole or
in part, such adjudication shall not affect the validity of the
remainder of the Agreement, including any other provision, paragraph or
subparagraph. Each provision, paragraph or subparagraph is separable
and severable from every other provision, paragraph and subparagraph,
and this Agreement shall be construed and enforced as if such void or
unenforceable portion were never a part of this Agreement and the
remaining provisions, paragraphs and subparagraphs of this Agreement
shall remain in full force and effect.
13. ENFORCEMENT OF COVENANTS. Employee acknowledges that compliance with
the confidentiality and nonsolicitation restrictive covenants contained
in paragraphs 8 and 9 of this Agreement is necessary to protect the
business and goodwill of Employer. Employee also acknowledges that a
breach of such covenants will result in irreparable and continuing
damages to Employer, for which money damages may be an insufficient
remedy to Employer. Further, Employee acknowledges that the
ascertainment of the full amount of damages in the event of Employee's
breach of any provision of this Agreement would be difficult.
Consequently, Employee agrees that, in the event of a breach or
threatened breach the restrictive covenants, that the parties, in
addition to all other remedies they may have, and in lieu of or in
addition to arbitration proceedings, shall be entitled to both (a)
temporary, preliminary and/or permanent injunctive relief in any court
of competent jurisdiction to restrain the breach of or otherwise to
specifically enforce any of the covenants in order to prevent the
continuation of such harm; and (b) money damages insofar as they can be
determined. Nothing in this Agreement shall be construed to prohibit
Employer from also pursuing any other remedy, the parties having agreed
that all remedies are cumulative.
14. ARBITRATION. As a part of, and in consideration for this Agreement and
the compensation and other benefits paid herein and in consideration
for the Employer's mutual agreement to arbitrate
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certain claims, Employee agrees that any dispute he may have against
Employer, its subsidiaries, affiliates, directors, officers, agents,
representatives, attorneys, employees, successors or assigns, under
either state or federal law, arising out of this Agreement, Employee's
employment or Employee's termination of employment, will be submitted to
final and binding arbitration in accordance with Employer's then current
arbitration procedures. However, nothing in this paragraph 14 shall be
construed to prevent Employer from asking a court of competent
jurisdiction to enter appropriate equitable relief to enjoin a violation
of the confidentiality or nonsolicitation provisions contained in
paragraphs 8 and 9 of this Agreement. Employer shall have the right to
seek such relief in connection with or apart from the parties' rights
under this clause to arbitrate all disputes.
Employee expressly acknowledges that Employer's arbitration procedures
requires Employee to initiate the arbitration procedure within one
hundred and eighty days (180) days after Employee's termination or
resignation or after Employee knows or should have known of the adverse
employment action. By agreeing to arbitrate, Employee understands that
Employee and Employer are mutually agreeing to submit all disputes to
an arbitral rather than judicial forum.
Employee and Employer agree that, based on Employer's current
arbitration procedures, which procedures may be changed by Employer
with thirty (30) days written notice to Employee, an arbitrator will be
selected from JAMS/Endispute (JAMS) and that JAMS shall schedule any
arbitration and appoint the arbitrator, if the parties cannot agree on
the selection of the arbitrator. Employee understands that the cost of
the arbitrator will be borne equally by Employee and Employer, and that
the decision of the arbitrator shall be final and binding. In the event
that either party to this Agreement brings or pursues a dispute in a
court of law, which dispute is subject to final and binding arbitration
in accordance with this Agreement and should have been brought or
submitted to arbitration, that party shall pay all reasonable
attorneys' fees and court costs incurred by the other party in filing
any motion to compel arbitration, motion to dismiss or other pleading
with said court to enforce arbitration under those procedures.
15. ACKNOWLEDGMENT. Employee acknowledges and agrees with each of the
following statements:
(a) I am executing this Agreement voluntarily and without any
duress or undue influence by Employer or anyone else;
(b) I have carefully read this Agreement. I have asked any
questions needed for me to understand the terms, consequences
and binding effect of this Agreement and I fully understand
the terms, consequences and effect of this Agreement; and
(c) I was given ample time to seek the advice of an attorney of my
choice before signing this Agreement.
16. NOTICES. Any notices or writings required under this Agreement shall be
regarded as delivered when a copy of the same shall have been sent by
certified mail with postage prepaid or personally delivered to such
parties at the following addresses or at such other addresses as the
parties shall hereafter designate in writing:
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TO EMPLOYEE: ___________________________
___________________________
___________________________
TO EMPLOYER: HBC Management Company, Inc.
0000 Xxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
Hand-delivered notices shall be deemed communicated upon receipt;
mailed notices shall be deemed communicated four days after mailing.
Any party may change the address to which notices should be sent by
giving notice as provided in this section.
17. MODIFICATION. No change or modification of this Agreement shall be
valid or binding upon the parties to this Agreement, nor shall any
waiver of any term or condition in the future be so binding, unless
such change or modification or waiver is in writing and signed by the
parties to this Agreement.
18. APPLICABLE LAW, VENUE AND JURISDICTION. This Agreement shall be
governed by and construed in accordance with the substantive laws of
the state of Texas, without regard to the rules governing conflicts of
laws. The parties agree that this Agreement will be deemed to be
executed and performable in Dallas County, Texas.
19. ASSIGNMENT. By reason of the special and unique nature of the services
hereunder, it is agreed that neither party hereto may assign any
interest, rights or duties which it or they may have in this Agreement
without the written consent of the other, provided, however, that
Employer may, without the written consent of Employee, assign this
Agreement to (a) any entity into which Employer is merged or to which
Employer transfers substantially all of its assets, or (b) any entity
controlling, under common control with, or controlled by Employer.
20. NO WAIVER. The failure to enforce at any time any of the provisions of
this Agreement or to require at any time performance by the other party
of any of the provisions of this Agreement shall in no way be construed
(a) to be a waiver of such provisions, or (b) to affect the validity of
this Agreement, or any part of this Agreement, or the right of either
party to enforce each provision in accordance with the terms of this
Agreement.
21. COSTS. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be
entitled to attorney's fees and costs in addition to any other relief
to which the prevailing party may be entitled.
22. ENTIRE AGREEMENT. This written Agreement supercedes the prior Agreement
between Employer and Employee dated January 1, 1999, and contains the
sole and entire agreement and understanding between the parties, and
supersedes any and all other prior agreements and understandings
regarding Employee's employment. The execution of this Agreement will
not affect the status of any stock options granted to Employee prior to
the date hereof. The parties acknowledge and agree that no
representations with respect to the subject matter of this Agreement or
any representations, promises, agreements or understandings, whether
written or oral, relating to the employment of Employee by Employer not
contained herein shall be of any force or effect. Further, each of the
parties hereto acknowledges that they have relied upon their own
judgment in entering into this Agreement.
B - 11
THIS AGREEMENT has been executed in duplicate counterparts and each of
the duplicate originals shall be deemed to be an original.
EXECUTED this 9 day of February, 2001.
EMPLOYER: EMPLOYEE:
HBC MANAGEMENT COMPANY, INC.
By: /s/ XxXxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxx Xxxxx
------------------------------- ------------------------
Chief Executive Officer Xxxx Xxxxx
B - 12
XXXX XXXXX
EXHIBIT "A"
Base Salary: $262,500.00 per year, paid semi-monthly. Profit
Sharing: Target of $162,500. Profit Sharing will be
paid at ___% of Employer's monthly actual Broadcast
Cash Flow ("BCF"), less corporate expenses.
Year-End Discretionary Bonus: Target of $100,000
based upon the achievement, as determined by
Employer's Board of Directors, of goals to be
established and mutually agreed upon between Employer
and Employee.
Loan: Employee shall promptly put his Calabassas residence
up for sale and shall pay off his existing loan on
that residence when it is sold. After the payoff of
this existing loan, Employee shall receive a new loan
of up to $1.3 million from Employer for the purchase
of a residence in the Dallas area, to be repaid
monthly interest only at 6% interest. The new loan
will mature five (5) years after the Effective Date
and will be secured by the Employee's new home.
Moving Expenses: Employee will receive reimbursement of moving
expenses, upon the submission of receipts, and after
receiving quotes from three different moving
companies.
Housing Allowance: Employee will receive $6,000.00 per month, from the
Effective Date, for a period of three (3) months or
until he has closed the purchase of a new home in
the Dallas area, whichever comes first, for travel
and temporary housing expenses.
Options: Employee was previously granted stock options prior
to the Effective Date which shall continue to vest
and be exercisable by their original terms. In
addition, Employee shall be granted options to
purchase an additional 30,000 shares of Employer's
common stock at a price to be established on the date
this Agreement is executed, to vest in accordance
with Employer's current vesting schedule as follows:
20% on the first anniversary of the stock option
grant, with an additional 20% vesting on each of the
following four anniversaries.
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