EXHIBIT 10.7.4.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AGREEMENT dated as of October 28, 1996, between XXXXX
XXXXXXXXXXX, residing at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Executive"), and NEWS COMMUNICATIONS, INC., a Nevada corporation having its
principal office at 174-15 Xxxxxx Xxxxxxx Expressway Fresh Xxxxxxx, New York
11365 (the "Company").
W I T N E S S E T H :
WHEREAS, Executive and the Company are parties to an
Employment Agreement dated as of August 20, 1993 (the "Original Agreement"); and
WHEREAS, the parties desire to extend the term of the Original
Agreement, to amend certain other provisions thereof and to restate the Original
Agreement as so extended and amended;
IT IS AGREED that the Original Agreement is hereby amended and
restated to read as set forth herein, effective as of the date first above
written:
1. Employment, Duties and Acceptance.
1.1 The Company hereby employs Executive as Chairman of its Board of
Directors ("Chairman"). All of Executive's powers and authority in any capacity
shall at all times be subject to the reasonable direction and control of the
Board of Directors of the Company ("Board"), to whom he shall report exclusively
in the manner and to the extent that has been in effect during the term of the
Original Agreement.
1.2 Executive's primary functions and duties as Chairman, in addition to
those set forth in the Company's By-Laws, shall include (i) assisting the
Company and its subsidiaries to raise capital and obtain financing and fostering
the Company's relationships with the banking and investment communities, and
(ii) promoting the expansion of the Company's business by seeking to attract
potential acquisition candidates, advertisers, joint venture partners and
others. The Board may assign to Executive such other executive and
administrative duties for the Company or any subsidiary of the Company as are
consistent with his status as Chairman. Notwithstanding the foregoing, it is
recognized that Executive is not required to devote his full business time only
to the conduct of the Company's affairs.
1.3 Executive shall be nominated for election as a member of the Board and
shall be elected as a member of the Board of Directors of each of the Company's
subsidiaries so long as his employment continues under this Agreement.
1.4 Executive accepts such employment and agrees to devote his time,
energies and attention to the performance of his duties to the extent required
of him hereunder.
1.5 Executive's services under this Agreement shall be performed primarily
in New York City, New York, or, at Executive's discretion, in such other place
or places as Executive may from time to time reside, subject, in Executive's
discretion, to reasonable domestic and overseas travel on behalf of the Company.
2. Compensation.
2.1 The Company shall pay to Executive an annual salary of $195,000, in
such periodic installments as the Company determines from time to time for the
payment of salaries to its executives generally ("Basic Salary"). Executive's
compensation shall be reviewed by the Company as of the beginning of each yearly
period during the term of this Agreement for the purpose of
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increasing Executive's compensation, but nothing herein shall require the
Company to grant any increase.
2.2 At the sole discretion of the Board, Executive shall be paid an annual
bonus ("Bonus"), which shall be based upon such factors as the results of
operation of the Company and its subsidiaries and transactions involving the
Company or its subsidiaries which have been introduced to the Company by
Executive or in which Executive has otherwise been involved on behalf of the
Company.
2.3 In consideration of Executive's employment under the Original
Agreement, the Company and Executive executed a Stock Option Agreement pursuant
to which the Company, on September 1, 1993, granted to Executive the option (not
intended to qualify as an incentive stock option under the Internal Revenue
Code) to purchase 300,000 shares of the Company's Common Stock at an exercise
price of $2.375 per share until August 31, 1998. The Stock Option Agreement
requires the Company to lend to Executive, on a non-recourse basis, the amounts
required by Executive to pay federal, state and local income taxes which may
become due and owing by him as a result of the exercise by Executive of the
stock options, which loans are to be repaid with interest (at the lowest
possible rate to avoid the imputation of interest for tax purposes) when
Executive sells the shares purchased under the option. This loan will be secured
by a pledge of the stock purchased by Executive under the option and Executive
shall be afforded certain "piggy back" registration rights with respect to these
shares, all as more fully described in the Stock Option Agreement.
2.4 At the request of Executive, he shall be entitled to (i) such medical
and other benefits and perquisites as are afforded to other senior executives of
the Company and its subsidiaries, and (ii) provision of an automobile or
automobile allowance, garage and mobile or portable telephonic equipment.
2.5 The Company will pay or reimburse Executive for (i) all expenses
relating to maintenance of appropriate office space for Executive, including
rent, and a secretary, (ii) all transportation, hotel rent and other living
expenses reasonably incurred by Executive on business trips and (iii) all other
ordinary out-of-pocket expenses actually and necessarily incurred by him in the
conduct of the business of the Company against itemized vouchers submitted with
respect to any such expenses approved in accordance with customary procedures.
2.6 The Company shall indemnify Executive and hold Executive harmless to
the fullest extent allowed by law with respect to any claim brought against
Executive as a result of or in connection with his employment hereunder or other
affiliation with the Company or its subsidiaries, whether such claim arises from
events occurring during, prior to or after the term of this Agreement, including
reasonable attorneys' fees, settlement costs, and all other costs and expenses
which may be incurred by Executive in connection with the defense or settlement
thereof, which fees, costs and expenses shall be paid on behalf of, or
reimbursed to, Executive as they are incurred to the extent legally permissible.
3. Term and Termination.
3.1 The term of this Agreement shall continue until August 19, 2003, or
until earlier terminated as herein provided.
3.2 Executive may terminate this Agreement at any time during the term
hereof by giving at least 10 days' prior written notice to the Company to such
effect.
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3.3 If Executive shall become permanently disabled or die during the term
of this Agreement, this Agreement shall thereupon terminate, except that the
Company shall continue to pay to Executive or the legal representative of
Executive's estate all monies due hereunder until August 19, 2003, including
Basic Salary and Bonus, at such times as such monies would have been paid to
Executive had he survived or not become disabled.
3.4 The Company, by notice to Executive, may terminate this Agreement and
Executive's employment with the Company for proper cause. As used herein,
"proper cause" shall mean: (a) the commission by Executive of a material breach
of any of the provisions of this Agreement; (b) misappropriating any funds or
property of the Company or any of its subsidiaries; or (c) unreasonable neglect
or refusal to perform the duties assigned to Executive under or pursuant to this
Agreement after not less than ten (10) days notice to Executive of the claimed
neglect or refusal and his failure to correct the same (or take active steps to
do so if it is not reasonable to accomplish within such period).
4. Protection of Confidential Information.
4.1 Executive acknowledges that:
(a) As a result of his employment by the Company, Executive will obtain
secret and confidential information concerning the business of the Company and
its subsidiaries, including, without limitation, the identity of suppliers,
dealers and customers, their needs and requirements, the nature and extent of
contracts with them, and related cost, price and sales information.
(b) The provisions of this Agreement are reasonable and necessary for the
protection of the business of the Company and its subsidiaries.
4.2 Executive agrees that he will not at any time, either during the term
of this Agreement or thereafter, divulge to any person, firm or corporation any
information obtained or learned by him as a result of his employment with the
Company or any of its subsidiaries with regard to the operational, financial,
business or other affairs of the Company or its subsidiaries, their officers and
directors, including, without limitation, trade "know how," secrets, advertiser
and customer lists, dealers, distributors, pricing policies, operational methods
or technical processes, except (i) in the course of performing his duties
hereunder, (ii) with the Company's express written consent; (iii) to the extent
that any such information is in the public domain other than as a result of
Executive's breach of any of his obligations hereunder; or (iv) where required
to be disclosed by court order, subpoena or other government process. In the
event that Executive shall be required to make disclosure pursuant to the
provisions of clause (iv) of the preceding sentence, Executive promptly, but in
no event more than 24 hours after learning of such subpoena, court order, or
other government process, shall notify, by personal delivery or by electronic
means, confirmed by mail, the Company and, at the Company's expense, Executive
shall: (a) take all reasonably necessary steps requested by the Company to
defend against the enforcement of such subpoena, court order or other government
process, and (b) permit the Company to intervene and participate with counsel of
its choice in any proceeding relating to the enforcement thereof.
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4.3 If Executive commits a breach, or threatens to commit a breach, of any
of the provisions of Section 4.2, the Company shall have the right and remedy to
have the provisions of this Agreement specifically enforced by any court having
equity jurisdiction, it being acknowledged and agreed by Executive that any such
breach or threatened breach will cause irreparable injury to the Company and
that money damages will not provide an adequate remedy to the Company.
4.4 If any provision of Section 4.2 is held to be unenforceable because of
the scope or duration of its applica bility, the tribunal making such
determination shall have the power to modify such scope or duration, or either
of them, and such provision or provisions shall then be applicable in such
modified form.
5. Miscellaneous Provisions.
5.1 All notices provided for in this Agreement shall be in writing, and
shall be deemed to have been duly given when delivered personally to the party
to receive the same, when given by electronic means, or when mailed first class
postage prepaid, by registered or certified mail, return receipt requested,
addressed to the party to receive the same at his or its address set forth
below, or such other address as the party to receive the same shall have
specified by written notice given in the manner provided for in this Section
5.1. All notices shall be deemed to have been given as of the date of personal
delivery, transmittal or mailing thereof.
To Executive:
Xx. Xxxxx Xxxxxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Marked "Personal and Confidential"
To the Company:
News Communications, Inc.
174-15 Xxxxxx Xxxxxxx Expressway
Xxxxx Xxxxxxx, Xxx Xxxx 00000
Attn.: President
5.2 This Agreement sets forth the entire agreement of the parties relating
to the employment of Executive and is intended to supersede all prior
negotiations, understandings and agreements. No provisions of this Agreement may
be waived or changed except by a writing by the party against whom such waiver
or change is sought to be enforced. The failure of any party to require
performance of any provision hereof or thereof shall in no manner affect the
right at a later time to enforce such provision.
5.3 All questions with respect to the construction of this Agreement, and
the rights and obligations of the parties hereunder, shall be determined in
accordance with the law of the State of New York applicable to agreements made
and to be performed entirely in New York.
5.4 The article headings are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope or intent of any
provision of this Agreement.
5.5 This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company. This Agreement shall not be assignable by
Executive and shall inure to the benefit of and be binding upon Executive and
his legal representatives.
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5.6 The Company and Executive acknowledge that Graubard Xxxxxx & Xxxxxx,
the Company's general counsel ("Graubard"), has drafted this Agreement in
accordance with the Company's instructions and that Graubard has represented
neither of them in connection herewith and each of the Company and Executive
hereby consents to such activities on the part of Graubard.
5.7 The Company acknowledges that Executive is involved in many business
activities and personal investments other than those involving the Company and
its subsidiaries, that such other activities and investments may at times be
competitive to or in conflict with the interests of the Company and its
subsidiaries and that Executive is under no obligation to either offer
competitive or conflicting opportunities to the Company or to resolve any
conflicts which may arise in a manner which is favorable or not adverse to the
interests of the Company and its subsidiaries.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
By: /s/ XXXXX XXXXXXXXXXX
---------------------------
XXXXX XXXXXXXXXXX
NEWS COMMUNICATIONS, INC.
By: /s/ XXXXXXX XXXXXXXXX
---------------------------
XXXXXXX XXXXXXXXX
Title: President
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