EXHIBIT 10.31
EMPLOYMENT AGREEMENT
This Employment Agreement is executed as of January 1, 1999, by and
between HEARST-ARGYLE TELEVISION, INC., a Delaware corporation ("Hearst-
Argyle"), and XXXXX X. XXXXXXX of 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000
("Employee").
WHEREAS, Employee possesses special, unique and original ability, and
Hearst-Argyle desires to secure Employee's exclusive services for the period and
on the terms hereinafter mentioned, which employment Employee desires to secure
and accept,
NOW, THEREFORE, in consideration of the compensation and the mutual
provisions and conditions herein contained, the parties agree as follows:
FIRST: Hearst-Argyle hereby employs Employee to render exclusive
services to and for Hearst-Argyle as its Executive Vice President and Chief
Operating Officer and Employee agrees to render services to Hearst-Argyle in
such capacities, and shall so serve, subject, however, to such limitations,
instructions, directions, and control as the Board of Directors of Hearst-Argyle
may specify from time to time, during the period beginning on the Commencement
Date, as hereinafter defined, and extending to and terminating on December 31,
2001 (the "Expiration Date") unless terminated earlier in accordance with the
provisions hereof. The Commencement Date shall be January 1, 1999. Employee
hereby accepts the aforesaid employment and agrees to render exclusive services
hereunder on the terms and conditions herein set forth.
SECOND: Hearst-Argyle agrees to pay to Employee and Employee agrees to
accept from Hearst-Argyle, as basic compensation for his services hereunder,
salary at the annual rate of $600,000 beginning with the Commencement Date and
extending to and terminating on the Expiration Date, payable in installments in
accordance with the prevailing payroll practices of Hearst-Argyle during the
term hereof, but in no event less frequently than twice a month.
In or about December 1999 and December 2000, Hearst-Argyle will review
Employee's
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compensation provisions herein contained for the purpose of determining whether
an increase in compensation should be effected in respect of the period
commencing, respectively, with the 1st day of January, 2000 to December 31,
2000, and the first day of January 2001 to the Expiration Date.
As additional compensation hereunder, Employee shall be eligible to
receive a bonus for each calendar year during the term of this Agreement, the
amount and basis of the bonus to be determined in accordance with such criteria
as shall be established by the Compensation Committee of the Board of Directors
of Hearst-Argyle. It is understood and agreed that the maximum additional
compensation payable in respect of each such year shall not exceed a sum equal
to 90% of Employee's base compensation for that year with the "target" bonus
equal to 50% of Employee's base compensation for that year, as such maximum and
target percentages may be increased in the sole discretion of the Compensation
Committee of the Board of Directors of Hearst-Argyle. The Compensation
Committee may, in its discretion, award any special bonus to Employee that it
deems appropriate, notwithstanding any other provisions set forth in this
Agreement.
In determining the amount of additional compensation to be paid to
Employee hereunder, the books of Hearst-Argyle shall be absolute and final and
shall not be open to dispute by Employee. Hearst-Argyle shall pay the
additional compensation, if any, due hereunder at any time prior to March 31 of
the year following each calendar year during the term of this Agreement.
It is mutually understood and agreed that the additional compensation
hereinbefore provided shall be due and payable only for so long as Employee
shall perform services under this Agreement and, in the event Employee's
employment hereunder or this Agreement shall be terminated for any cause, or
should Hearst-Argyle assign this Agreement in accordance with the terms of
Paragraph SIXTH hereof, Hearst-Argyle shall compute the additional compensation
by limiting the amount thereof to the period commencing with the first day of
the calendar year in which such termination or assignment shall take effect to
and including the date of termination or
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assignment.
THIRD: To induce Hearst-Argyle to enter into this Agreement and to
pay the compensation herein provided, Employee hereby represents, warrants and
agrees to the following:
(a) Employee will faithfully and diligently carry out Employee's
duties hereunder.
(b) Employee will work for, and render services to, Hearst-Argyle
exclusively, and Employee will give and devote to the pursuit of Employee's
duties, exclusive time, best skill, attention and energy, and that during the
term of employment, Employee will not perform any work, render any services or
give any advice, gratuitously or otherwise, for or to any other person, firm or
corporation, that shall be inconsistent in any material respect with Employee's
duties or obligations hereunder, as reasonably determined by Hearst-Argyle,
without the prior consent of Hearst-Argyle in each such instance.
Notwithstanding the foregoing, it is the understanding of the parties hereto
that Employee shall be permitted to serve, and in certain instances to continue
to serve, as a member of the board of directors of other organizations,
including charitable or not-for-profit corporations and profit-making
corporations, but only if such board membership does not interfere or conflict
with Employee's work hereunder in any material respect and such board membership
is approved in advance by Hearst-Argyle, which approval shall not be
unreasonably withheld.
Should there be a violation or attempted or threatened violation of
this provision, Hearst-Argyle may apply for and obtain an injunction to restrain
such violation or attempted or threatened violation, to which injunction Hearst-
Argyle shall be entitled as a matter of right, Employee conceding that the
services contemplated by this Agreement are special, unique and extraordinary,
the loss of which cannot reasonably or adequately be compensated in damages in
an action at law, and that the right to injunction is necessary for the
protection and preservation of the rights of Hearst-Argyle and to prevent
irreparable damage to Hearst-Argyle. Such injunctive relief
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shall be in addition to such other rights and remedies as Hearst-Argyle may have
against Employee arising from any breach hereof on Employee's part.
(c) No impediment, contractual or otherwise, exists which limits or
precludes Employee from entering into this Agreement and rendering full
performance in accordance with the terms and conditions herein provided.
FOURTH: During the period of, and after the expiration of, this
Agreement or after the termination of Employee's employment (whether such
employment is pursuant to the terms of this Agreement or otherwise), Employee
will not use, divulge, sell or deliver to or for any other person, firm or
corporation other than Hearst-Argyle or a successor to, or a parent (direct or
indirect), or an affiliate or subsidiary of, Hearst-Argyle (hereinafter in this
paragraph collectively referred to as "HEARST-ARGYLE") any and all confidential
information and material (statistical or otherwise) relating to HEARST-ARGYLE'S
business, including, but not limited to, confidential information and material
concerning broadcasting, magazines, newspapers, cable systems operations, cable
programming, books, syndication, circulation, distribution, marketing,
advertising, customers, authors, employees, literary property and rights
appertaining thereto, copyrights, trade names, trademarks, financial
information, methods and processes incident to broadcasting, programming,
publication or printing, and any other secret or confidential information.
Upon the termination of Employee's employment irrespective of the time, manner
or cause of termination, Employee will surrender to HEARST-ARGYLE all lists,
books and records of or in connection with HEARST-ARGYLE'S business and all
other property belonging to HEARST-ARGYLE. Should there be a violation or
attempted or threatened violation by Employee of any of the provisions contained
in this Paragraph FOURTH, HEARST-ARGYLE shall be entitled to the same rights and
relief by way of injunction and other remedies as are provided for under
subparagraph (b) of Paragraph THIRD hereof.
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FIFTH: Employee's employment hereunder may be terminated by Hearst-
Argyle (a) by reason of a Disability, as hereinafter defined, (b) for Cause, as
hereinafter defined, or (c) Without Cause, as hereinafter defined, all upon
payment of the sums hereinafter set forth. Employee may terminate Employee's
employment hereunder (a) voluntarily, with Good Reason, as hereinafter defined,
or (b) voluntarily, without Good Reason, subject to a covenant not-to-compete as
provided in Paragraph NINTH. In the event of Employee's death, this Agreement
shall terminate and all rights and obligations of this Agreement shall cease
except as otherwise herein provided.
In the event Employee's employment is terminated due to Employee's
death, Employee's legal representative or estate, as the case may be, shall be
entitled to receive any compensation to which Employee was entitled, but which
Employee had not yet received, at the time of Employee's death.
(a) For purposes of this Paragraph FIFTH, Disability shall mean that
for a period of one hundred eighty (180) consecutive days, Employee is
unable to fulfill the duties and responsibilities of Employee's position
because of physical or mental incapacity. If, as a result of a Disability,
Employee shall have been unable to fulfill Employee's duties and
responsibilities, and within thirty (30) days after written Notice of
Termination, as hereinafter defined, is given, Employee shall not have returned
to the performance of Employee's duties hereunder on a full-time basis, Hearst-
Argyle may terminate Employee's employment.
In the event of a termination due to Disability, Employee shall be
entitled to receive compensation through the Date of Termination, as hereinafter
defined. In the event that Employee is otherwise receiving or is entitled to
receive disability benefits at the time Employee's employment is terminated,
nothing herein contained shall be construed to terminate or otherwise adversely
affect Employee's right to receive such benefits.
(b) Employee's employment may be terminated for "Cause" by Hearst-
Argyle. For
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purposes of this Agreement, "Cause" shall mean (i) conviction of a felony; (ii)
willful gross neglect or willful gross misconduct in the performance of
Employee's duties hereunder; (iii) willful failure to comply with applicable
laws with respect to the conduct of Hearst-Argyle's business, resulting in
material economic harm to Hearst-Argyle; (iv) theft, fraud or embezzlement,
resulting in substantial gain or personal enrichment, directly or indirectly, to
Employee at Hearst-Argyle's expense; (v) inability to perform the duties and
responsibilities of Employee's office as a result of addiction to alcohol or
drugs, other than drugs legally prescribed or administered by a duly licensed
physician; or (vi) continued willful failure to comply with the reasonable
directions of the Board of Directors, which directions have been voted upon and
approved by a majority of such Board and of which Employee has been made fully
aware.
A termination for Cause will be deemed to have occurred as of the date
when there shall have been delivered to Employee a copy of a resolution, duly
adopted by the affirmative vote of not less than a majority of the entire
membership of the Board of Directors at a meeting of such Board called and held
for that purpose and any other purpose or purposes (after reasonable written
notice to Employee, and an opportunity for Employee, together with Employee's
counsel, to be heard before the Board), finding that, in the good faith opinion
of the Board, Employee's conduct met the definition of termination for Cause set
forth above.
In the event of a termination for Cause, Employee shall be entitled to
receive compensation through the Date of Termination, as hereinafter defined.
(c) A termination "Without Cause" shall mean a termination of
employment by Hearst-Argyle other than due to Employee's death or Disability or
for Cause.
In the event of a termination Without Cause, Employee shall be
entitled to receive, in a lump sum payment at the time of such termination, an
amount equal to Employee's salary provided in Paragraph SECOND plus an amount
equal to Employee's "target" bonus, as if Employee
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had remained an employee of Hearst-Argyle for the longer of the duration of the
term of this Agreement or one year (the "Payment Period"). In the event
Employee's employment is terminated Without Cause, Employee shall have no duty
to mitigate damages. Notwithstanding the above, Hearst-Argyle's obligation to
pay the amounts referenced hereinabove shall be conditioned on Employee's
signing a general release in form satisfactory to Hearst-Argyle.
(d) At any time during the term of the Agreement, Employee may
voluntarily terminate Employee's employment for "Good Reason". For purposes of
this Agreement, "Good Reason" shall mean, without Employee's express written
consent, the occurrence of any of the following circumstances: (i) the removal
of Employee from the position of Executive Vice President and Chief Operating
Officer of Hearst-Argyle; (ii) the assignment to Employee of any duties or
responsibilities inconsistent with Employee's status and authority as Executive
Vice President and Chief Operating Officer, or a substantial adverse alteration
in the nature or status of Employee's duties or responsibilities from those in
effect at the commencement of this Agreement, if such assignment or alteration
reduces the duties, responsibilities, importance or scope of Employee's
position, (iii) a reduction of Employee's compensation as set forth in this
Agreement; (iv) a material breach of this Agreement by Hearst-Argyle; or (v) the
relocation of the principal executive offices of Hearst-Argyle or of Employee's
principal office to a location more than fifty (50) miles from New York City or
the imposition of a requirement that Employee be based anywhere other than at
such principal executive offices.
Employee's right to terminate Employee's employment shall not be
affected by Employee's incapacity due to physical or mental illness. Employee's
continued employment shall not constitute consent to, or a waiver of rights with
respect to, any circumstances constituting Good Reason hereunder.
If Employee desires to terminate Employee's employment for Good
Reason,
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Employee shall first give Hearst-Argyle Notice of Termination, as hereinafter
defined, and shall allow Hearst-Argyle no less than thirty (30) days to remedy,
cure or rectify the situation giving rise to Employee's Good Reason.
If Employee terminates Employee's employment for Good Reason, Employee
shall receive the same compensation and benefits as if Employee was terminated
by Hearst-Argyle Without Cause.
Any termination of Employee's employment hereunder, whether by Hearst-
Argyle or by Employee, shall be communicated by written "Notice of Termination"
to the other party hereto. For purposes of this Agreement, a Notice of
Termination shall indicate the specific termination provision in this Agreement
relied upon and, if by Hearst-Argyle for Cause or by Employee for Good Reason,
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for such termination.
"Date of Termination" shall mean (i) if Employee's employment is
terminated by death, the date of Employee's death, (ii) if Employee's employment
is terminated due to Disability, thirty (30) days after Notice of Termination is
given (provided that Employee shall not have returned to the performance of
Employee's duties on a full-time basis during such thirty (30) day period),
(iii) if Employee's employment is terminated by Hearst-Argyle Without Cause, the
date specified in the Notice of Termination, which date shall be not less than
five (5) nor more than thirty (30) days from the date Notice of Termination was
given, (iv) if Employee's employment is terminated by Employee for Good Reason,
the date specified in the Notice of Termination, which date shall be not less
than five (5) nor more than thirty (30) working days from the expiration of the
time to remedy, cure or rectify the situation giving rise to Employee's Good
Reason, and (v) if Employee's employment is terminated by Hearst-Argyle for
Cause, the date specified in the Notice of Termination.
Except as otherwise set forth in this Agreement, any payments pursuant
to the
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provisions of this Paragraph FIFTH shall be severance payments or liquidated
damages or both, shall not be subject to any requirements as to mitigation or
offset, except as otherwise specifically provided, and shall not be in the
nature of a penalty. No payment resulting from the termination of Employee's
employment shall adversely affect Employee's entitlement to benefits under any
Hearst-Argyle benefit plan in which Employee was participating at the time of
such termination.
SIXTH: Hearst-Argyle shall have the right to transfer Employee to any
property owned or controlled, directly or indirectly, by it, or constituting a
part of Hearst-Argyle, and should such property be operated by a successor to,
or a subsidiary or an affiliate of, Hearst-Argyle, this Agreement shall be
assignable by Hearst-Argyle to such successor or to such subsidiary or
affiliate. This right of transfer shall be subject however to Employee's rights
under Paragraph FIFTH (d). It is further understood that this Agreement and all
of the rights and benefits hereunder are personal to Employee and neither this
Agreement nor any right or interest of Employee herein or arising hereunder
shall be subject to voluntary or involuntary alienation, assignment,
hypothecation or transfer by him.
SEVENTH: Employee will accept any additional office (whether such be
that of director, officer or otherwise) to which Employee may be elected or
appointed in Hearst-Argyle or in any firm, association or corporation which is a
successor to, or a subsidiary or an affiliate of, Hearst-Argyle or in which
Hearst-Argyle holds an interest. In the event of such election or appointment,
Employee agrees to serve without extra compensation.
EIGHTH: Employee covenants and agrees that during the term hereof and
within the two (2) year period immediately following the termination of this
Agreement, regardless of the reason therefor, Employee shall not solicit,
induce, aid or suggest to (i) any employee, (ii) any author, (iii) any
independent contractor or other service provider, or (iv) any customer, agency
or advertiser of Hearst-Argyle to leave such employ, to terminate such
relationship or to cease doing
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business with Hearst-Argyle. Employee acknowledges that the terms of this
paragraph are reasonable and enforceable and that should there be a violation or
attempted or threatened violation by Employee of any of the provisions contained
in this Paragraph EIGHTH, Hearst-Argyle shall be entitled to the same rights and
relief by way of injunction as are provided for under subparagraph (b) of
Paragraph THIRD hereof. In the event that this non-solicitation covenant shall
be deemed by any court of competent jurisdiction, in any proceedings in which
Hearst-Argyle shall be a party, to be unenforceable because of its duration,
scope, or area, it shall be deemed to be and shall be amended to conform to the
scope, period of time and geographical area which would permit it to be
enforced.
NINTH: Upon the termination of Employee's employment by Hearst-
Argyle for Cause or by Employee without Good Reason, Employee agrees that,
without the express approval of Hearst-Argyle, Employee shall not, for a period
which is the lesser of two (2) years or the remaining term of this Agreement
subsequent to such termination, engage in any activity or render service in any
capacity (whether as principal, five percent (5%) shareholder, employee,
consultant or otherwise) for or on behalf of any person or persons if such
activity or service directly competes with the business of Hearst-Argyle. It is
understood and agreed that nothing herein contained shall prevent Employee from
engaging in discussions concerning business arrangements to become effective
upon the expiration of the term of this covenant not to compete. In the event
Hearst-Argyle shall not offer to renew this Agreement, or a termination by
Hearst-Argyle Without Cause or by Employee with Good Reason, the provisions of
this Paragraph NINTH shall be of no force or effect. Employee acknowledges that
the terms of this paragraph are reasonable and enforceable and that should there
be a violation or attempted or threatened violation by Employee of any of the
provisions contained in this Paragraph NINTH, Hearst-Argyle shall be entitled to
the same rights and relief by way of injunction as are provided for under
subparagraph (b) of Paragraph
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THIRD hereof. In the event that this covenant not to compete shall be deemed by
any court of competent jurisdiction, in any proceedings in which Hearst-Argyle
shall be a party, to be unenforceable because of its duration, scope, or area,
it shall be deemed to be and shall be amended to conform to the scope, period of
time and geographical area which would permit it to be enforced.
TENTH: Hearst-Argyle and Employee acknowledge that the terms of this
Agreement are confidential and, among other things, constitute trade secrets,
the disclosure of which likely would inure to the material detriment of Hearst-
Argyle's business operations. Except as required by securities laws, FCC
regulations, other regulatory requirements, or court order, Hearst-Argyle and
Employee agree not to disclose any of the terms of this Agreement to any other
person or persons, provided, however, that Employee may make a limited
disclosure to Employee's legal or financial advisors, or to members of
Employee's immediate family, on condition that each such person to whom
disclosure is made agrees to maintain the confidentiality of such information
and to refrain from making further disclosure.
ELEVENTH: It is understood and agreed that this Agreement shall be
interpreted, construed and enforced in accordance with the laws of the State of
New York, without regard to New York's conflicts or choice of law rules.
TWELFTH: It is understood and agreed that this Agreement supersedes
all prior agreements and understandings, if any, between Hearst-Argyle and
Employee. No provision of this Agreement may be waived, changed or otherwise
modified except by a writing signed by the party to be charged with such waiver,
change or modification.
THIRTEENTH: Each and every covenant, provision, term and clause
contained in this Agreement is severable from the others and each such covenant,
provision, term and clause shall be valid and effective, notwithstanding the
invalidity or unenforceability of any other such
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covenant, provision, term or clause.
FOURTEENTH: Any notice, request, demand, waiver or consent required
or permitted hereunder shall be in writing and shall be given by prepaid
registered or certified mail, with return receipt requested, addressed as
follows:
If to Hearst-Argyle:
-------------------
Hearst-Argyle Television, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000,
Attention: Secretary
If to Employee:
--------------
Xxxxx X. Xxxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
The date of any such notice and of service thereof shall be deemed to
be the date of mailing. Either party may change its address for the purpose of
notice by giving notice to the other in writing as herein provided.
FIFTEENTH: This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
SIXTEENTH: Hearst-Argyle and Employee agree that any claim which
either party may have against the other under local, state or federal law
including, but not limited to, matters of discrimination, arising out of the
termination or alleged breach of this Agreement or the terms, conditions or
termination of such employment, will be submitted to mediation and, if mediation
is unsuccessful, to final and binding arbitration in accordance with Hearst-
Argyle's Dispute Settlement Procedure ("Procedure"), of which Employee has
received a copy. During the pendency of any claim under this Procedure, Hearst-
Argyle and Employee agree to make no statement orally or in
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writing regarding the existence of the claim or the facts forming the basis of
such claim, or any statement orally or in writing which could impair or
disparage the personal or business reputation of Hearst-Argyle or Employee. The
Procedure is hereby incorporated by reference into this Agreement.
IN WITNESS WHEREOF, Hearst-Argyle and Employee have executed this
Agreement as of the date first written above.
HEARST-ARGYLE TELEVISION, INC.
By: ___________________________
EMPLOYEE
By: ___________________________
Xxxxx X. Xxxxxxx
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