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EXHIBIT 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") dated as of January
31, 2000, is made by and between Xxxxxxx Mezzanine Holdings, LLC, a Delaware
limited liability company (together with any successor thereto, the "Company")
and Xxxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Company desires to assure itself of the services of the
Executive, and the Executive desires to commit himself to serve the Company, on
the terms herein provided;
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements set forth below the parties hereto agree as
follows:
1. CERTAIN DEFINITIONS.
(a) "Annual Base Salary" shall have the meaning set forth in Section
4.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Cause" for the Company to terminate the Executive's employment
hereunder shall exist upon the Executive's:
(i) failure substantially to perform his duties hereunder, other
than any such failure resulting from the Executive's Disability, after
notice and reasonable opportunity for cure, all as determined by the Board;
(ii) conviction of a felony or a crime involving moral turpitude;
or
(iii) fraud or personal dishonesty involving Company assets.
(d) "Company" shall have the meaning set forth in the preamble
hereto.
(e) "Compensation Committee" means the compensation committee of the
Board.
(f) "Contract Year" shall mean each twelve month period beginning on
the Effective Date hereof or an annual anniversary thereof.
(g) "Date of Termination" shall mean (i) if the Executive's
employment is terminated by his death, the date of his death; and (ii) if the
Executive's employment is terminated pursuant to any of Sections 5(a)(ii)
through 5(a)(vi), the date specified in the Notice of Termination.
(h) "Disability" shall mean the absence of the Executive from the
Executive's duties to the Company on a full-time basis for a period of 180
consecutive days as a result of incapacity due to mental or physical illness.
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(i) "Effective Date" of this Agreement shall mean the date of
effectiveness of the registration statement registering the initial public
offering of shares of Class A common stock of the Company.
(j) "Executive" shall have the meaning set forth in the preamble
hereto.
(k) "Good Reason" for the Executive to terminate his employment shall
exist in the event that the Company fails to make any payment or provide any
benefit hereunder or commits a material breach of this Agreement and does not
cure such failure or breach after notice and a reasonable opportunity to cure.
(l) "Notice of Termination" shall have the meaning set forth in
Section 5(b).
(m) "Term of Employment" shall have the meaning set forth in Section
2(b).
2. EMPLOYMENT.
(a) Initial Term. The Company shall employ the Executive and the
Executive shall enter the employ of the Company, for the period set forth in
this Section 2, in the position set forth in Section 3 and upon the other terms
and conditions herein provided. The initial term of employment under this
Agreement (the "Initial Term") shall be for the period beginning on the
Effective Date of this Agreement and shall expire on the third anniversary
thereof, unless earlier terminated as provided in Section 5.
(b) Extension. The employment term hereunder shall automatically be
extended for successive one-year periods ("Extension Terms" and, collectively
with the Initial Term, the "Term of Employment") unless either party gives
notice of non-extension to the other no later than 90 days prior to the
expiration of the then-applicable Term of Employment.
3. POSITION AND DUTIES.
(a) Generally. The Executive shall serve as the Vice President of
Operations of the Company. Subject to reasonable modification from time to time
by the Board or by the Chief Executive Officer, Executive shall report to the
Chief Operating Officer and shall, for such radio stations as designated by the
Chief Executive Officer or by the Chief Operating Officer, supervise, control
and have responsibility for the daily operating activities of such designated
stations, including without limitation supervision of station management,
personnel matters, short- and long-term strategic decision making, station
budgets, management of third party relationships, and disbursements. Executive
will, on a full-time basis, apply all of his skill and experience to the
performance of his duties in such employment and will not, without the prior
consent of the Board, devote substantial amounts of time to outside business
activities. Notwithstanding the foregoing, Executive may devote a reasonable
amount of his time to civic, community, charitable or passive investment
activities.
(b) Subsidiaries. If elected or appointed thereto, and only for the
duration of such elected term or appointment, the Executive shall serve as a
director of the Company and any of its subsidiaries and/or in one or more
executive offices of any of such subsidiaries, provided
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that the Executive is indemnified for serving in any and all such capacities on
a basis consistent with that provided by the Company to other directors of the
Company or similarly situated executive officers of any such subsidiaries.
4. COMPENSATION AND RELATED MATTERS.
(a) Annual Base Salary. The Executive shall receive a base salary at
a rate of $300,000 per annum during the first 12 months of the Initial Term,
increased by five percent per annum on each anniversary of the Contract Year
during the Term of Employment. In its sole discretion, the Compensation
Committee may review the Annual Base Salary with a view toward consideration of
merit increases as the Compensation Committee deems appropriate. The Annual Base
Salary shall be paid in arrears in substantially equal installments at monthly
or more frequent intervals, in accordance with the normal payroll practices of
the Company.
(b) Bonus. Executive shall be eligible to receive an annual bonus for
each fiscal year of the Company ending during the Term of Employment at the sole
discretion of the Board.
(c) Benefits. The Executive shall be eligible to participate in the
2000 Equity Plan of Xxxxxxx Broadcasting Group, Inc. and such other equity based
or incentive compensation plans or programs as may be adopted by the Company
from time to time (collectively, the "Equity Plan") for its senior executives,
at such level and in such amounts as may be determined by the Board in its sole
discretion, subject to the terms and conditions of the Equity Plan and any
applicable award agreements; provided, however, that in the event Executive
violates Section 7 or Section 8 of this Agreement, all stock options or other
equity based or incentive compensation awards granted under the Equity Plan or
otherwise (whether or not vested) shall, immediately upon the time of the first
such violation, cease to be exercisable and shall thereupon be cancelled and be
of no further force and effect. At the expense of the Company, the Executive
shall be entitled to participate in the other employee benefit plans, programs
and arrangements of the Company (including, without limitation, health
insurance, long-term disability coverage and vacation for Executive and his
eligible dependents) now (or, to the extent determined by the Board, hereafter)
in effect which are applicable to the senior officers of the Company, subject to
and on a basis consistent with the terms, conditions and overall administration
thereof.
(d) Expenses. The Company shall reimburse the Executive for all
reasonable travel and other business expenses incurred by him in the performance
of his duties to the Company, in accordance with the Company's documentation and
other policies with respect thereto.
5. TERMINATION.
The Executive's employment hereunder may be terminated by the Company
or the Executive, as applicable, without any breach of this Agreement only under
the following circumstances:
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(a) Circumstances.
(i) Death. The Executive's employment hereunder shall terminate
upon his death. In the event of the death of the Executive during the Term
of this Agreement, Company shall pay to Executive's widow, if surviving,
otherwise to his estate or legal representative, compensation at the Annual
Base Salary rate then being received by Executive for a period of one year
following Executive's death.
(ii) Disability. If the Company determines in good faith that the
Executive has incurred a Disability, the Company may give the Executive
written notice of its intention to terminate the Executive's employment. In
such event, the Executive's employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the Executive,
provided that within the 30 days after such receipt, the Executive shall
not have returned to full-time performance of his duties. The Executive
shall continue to receive his Annual Base Salary until the Date of
Termination.
(iii) Termination for Cause. The Company may terminate the
Executive's employment hereunder for Cause.
(iv) Termination without Cause. The Company may terminate the
Executive's employment hereunder without Cause.
(v) Resignation for Good Reason. The Executive may terminate his
employment for Good Reason.
(vi) Resignation without Good Reason. The Executive may resign
his employment without Good Reason upon 90 days written notice to the
Company.
(b) Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive under this Section 5 (other than
termination pursuant to Section 5(a)(i)) shall be communicated by a written
notice to the other party hereto indicating the specific termination provision
in this Agreement relied upon, setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and specifying a Date of
Termination which, except in the case of termination for Cause, shall be at
least fourteen days following the date of such notice (a "Notice of
Termination"), or thirty days if termination is pursuant to Section 5(a)(ii).
6. SEVERANCE PAYMENTS.
(a) Entitlement to Severance Payments. If the Executive's employment
shall terminate without Cause (pursuant to Section 5(a)(iv)) or for Good Reason
(pursuant to Section 5(a)(v)), the Company shall:
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(i) Pay to the Executive, in accordance with its regular payroll
practice, following the Date of Termination, an amount equal to his then
Annual Base Salary for the longer of one year or the remainder of the
Initial Term (the "Severance Period").
(ii) At the expense of the Company continue for one year the
Executive's coverage under all Company benefit plans and programs in which
the Executive was entitled to participate immediately prior to the Date of
Termination, to the extent permitted thereunder until the earlier of (A)
the expiration of the Severance Period or (B) the date the Executive has
commenced new employment and has thereby become eligible for comparable
benefits. In the event that the Executive's participation in any such plan
or program is not permitted, the Company shall arrange to provide the
Executive with benefits substantially similar to those which the Executive
would otherwise have been entitled to receive under such plans and
programs.
(iii) Notwithstanding the terms or conditions of the Equity Plan
or any stock option or other award agreement between the Company and the
Executive, all such stock options or other awards shall become fully vested
and exercisable as of the Date of Termination and shall remain exercisable
until the earlier to occur of (A) the expiration of such stock option or
other award pursuant to its terms or (B) the expiration of 90 days
following the Date of Termination.
(b) Survival. The expiration or termination of the Term of Employment
shall not impair the rights or obligations of any party hereto which shall have
accrued hereunder prior to such expiration.
(c) Mitigation of Damages. In no event shall the Executive be
obligated to seek other employment or take any other action by way of mitigation
of the amount payable to the Executive under any of the provisions of this
Agreement and such amounts shall not be reduced (except as provided in Section
6(a)(ii)) whether or not the Executive obtains other employment. Neither the
Executive nor the Company shall be liable to the other party for any damages in
addition to the amounts payable under Section 6 arising out of the termination
of the Executive's employment prior to the end of the Term of Employment (except
as provided in Section 9).
7. COMPETITION.
(a) Conduct of Executive. The term of Non-Competition (herein so
called) shall be for a term beginning on the date hereof and continuing until
the first anniversary of the Date of Termination; provided, however, that if the
Executive's employment is terminated by the Company other than for Cause or by
the Executive for Good Reason the term of Non-Competition shall expire upon the
earlier of the first anniversary of the Date of Termination or the date that the
Executive waives his entitlement to any further payments under Section 6(a)(i)
hereunder. During the term of Non-Competition, the Executive shall not, without
the prior written consent of the Board, directly or indirectly engage in, or
have any equity interest in, or manage or operate any person, firm, corporation,
partnership or business (whether as director,
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officer, employee, agent, representative, partner, security holder, consultant
or otherwise) that engages in any business which competes with any business of
the Company or any entity owned by it that is within 75 miles of any
transmission site on which the Company or any entity owned by it operates a
radio station at the Date of Termination provided, however, that the Executive
shall be permitted to acquire a stock interest in such a corporation provided
such stock is publicly traded and the stock so acquired is not more than five
percent (5%) of the outstanding shares of such corporation.
(b) Construction of this Section. In the event the terms of this
Section 7 shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a period of time or over
too great a geographical area or by reason of its being too extensive in any
other respect, it will be interpreted to extend only over the maximum period of
time for which it may be enforceable, and/or over the maximum geographical area
as to which it may be enforceable and/or to the maximum extent in all other
respects as to which it may be enforceable, all as determined by such court in
such action.
8. NONDISCLOSURE OF PROPRIETARY INFORMATION.
(a) Confidentiality. Except as required in the faithful performance
of the Executive's duties hereunder or pursuant to subsection (c), the Executive
shall, in perpetuity, maintain in confidence and shall not directly, indirectly
or otherwise, use, disseminate, disclose or publish, or use for his benefit or
the benefit of any person, firm, corporation or other entity any confidential or
proprietary information or trade secrets of or relating to the Company,
including, without limitation, information with respect to the Company's
operations, processes, products, inventions, business practices, finances,
principals, vendors, suppliers, customers, potential customers, marketing
methods, costs, prices, contractual relationships, regulatory status,
compensation paid to employees or other terms of employment, or deliver to any
person, firm, corporation or other entity any document, record, notebook,
computer program or similar repository of or containing any such confidential or
proprietary information or trade secrets. The parties hereby stipulate and agree
that as between them the foregoing matters are important, material and
confidential proprietary information and trade secrets and affect the successful
conduct of the businesses of the Company (and any successor or assignee of the
Company).
(b) Return of Materials. Upon termination of the Executive's
employment with Company for any reason and upon the Company's request, the
Executive will promptly deliver to the Company all correspondence, drawings,
manuals, letters, notes, notebooks, reports, programs, plans, proposals,
financial documents, or any other documents concerning the Company's customers,
business plans, marketing strategies, products or processes and/or which contain
proprietary information or trade secrets.
(c) Response to Legal Process. The Executive may respond to a lawful
and valid subpoena or other legal process but shall give the Company the
earliest possible notice thereof, and shall, as much in advance of the return
date as possible, make available to the Company and its counsel the documents
and other information sought and shall assist such counsel in resisting or
otherwise responding to such process.
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9. INJUNCTIVE RELIEF.
It is recognized and acknowledged by the Executive that a breach of
the covenants contained in Sections 7 and 8 will cause irreparable damage to
Company and its goodwill, the exact amount of which will be difficult or
impossible to ascertain, and that the remedies at law for any such breach will
be inadequate. Accordingly, the Executive agrees that in the event of a breach
of any of the covenants contained in Sections 7 and 8, in addition to any other
remedy which may be available at law or in equity, the Company will be entitled
to specific performance and injunctive relief.
10. BINDING ON SUCCESSORS.
This Agreement shall be binding upon and inure to the benefit of the
Company, the Executive and their respective successors, assigns, personnel and
legal representatives, executors, administrators, heirs, distributees, devisees,
and legatees, as applicable.
11. GOVERNING LAW.
This Agreement shall be governed, construed, interpreted and enforced
in accordance with the substantive laws of the State of Florida.
12. VALIDITY.
The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. NOTICES.
Any notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt)
and shall be in writing and delivered personally or sent by telex, telecopy, or
certified or registered mail, postage prepaid, as follows:
(a) If to the Company:
Xxxxxxx Mezzanine Holdings, LLC
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: B. Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, XX, Xxxxx 0000
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Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
(b) If to the Executive, to him at the address set forth below under
his signature; or at any other address as any party shall have specified by
notice in writing to the other parties.
14. COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one
and the same Agreement.
15. ENTIRE AGREEMENT.
The terms of this Agreement are intended by the parties to be the
final expression of their agreement with respect to the employment of the
Executive by the Company and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this Agreement shall
constitute the complete and exclusive statement of its terms and that no
extrinsic evidence whatsoever may be introduced in any judicial, administrative,
or other legal proceeding to vary the terms of this Agreement.
16. AMENDMENTS; WAIVERS.
This Agreement may not be modified, amended, or terminated except by
an instrument in writing, signed by the Executive and the Chief Financial
Officer. By an instrument in writing similarly executed, the Executive or the
Company may waive compliance by the other party or parties with any provision of
this Agreement that such other party was or is obligated to comply with or
perform, provided, however, that such waiver shall not operate as a waiver of,
or estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder
preclude any other or further exercise of any other right, remedy, or power
provided herein or by law or in equity.
17. NO INCONSISTENT ACTIONS.
The parties hereto shall not voluntarily undertake or fail to
undertake any action or course of action inconsistent with the provisions or
essential intent of this Agreement. Furthermore, it is the intent of the parties
hereto to act in a fair and reasonable manner with respect to the interpretation
and application of the provisions of this Agreement.
18. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators in Washington, D.C. in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that the
Company shall be entitled to seek a restraining order or injunction in
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any court of competent jurisdiction to prevent any continuation of any violation
of the provisions of Sections 7 or 8 of this Agreement and the Executive hereby
consents that such restraining order or injunction may be granted without the
necessity of the Company's posting any bond. The fees and expense of the
arbitrator shall be borne by the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
THE COMPANY
Xxxxxxx Mezzanine Holdings, LLC
By: /s/ B. XXXXXXXX XXXXXXX
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Name: B. Xxxxxxxx Xxxxxxx
Title: Chief Financial Officer
THE EXECUTIVE
/s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Address: 0000 Xxxxxxx Xxxxx Xxxxx 000
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Xxxxxx, XX 00000
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