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EMPLOYMENT AGREEMENT
WITH J. XXXXXXX XXXXXXX
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into as of July 28, 1999, but is effective for all purposes as of the
Commencement Date (as hereinafter defined), by and between CLASSIC
COMMUNICATIONS, INC., a Delaware corporation, and CLASSIC CABLE, INC., a
Delaware corporation (collectively, the "Employer"), and J. XXXXXXX XXXXXXX,
residing at 0000 Xxxxxxx Xxxx, Xxxxxx, Xxxxx 00000 (the "Employee").
R E C I T A L S:
The Employer recognizes the important contributions that the
Employee has made to the Employer as an officer and key employee, as currently
evidenced by an Employment Agreement, dated as of January 31, 1998 (the "1998
Agreement"), between the Employer, Classic Cable, Inc. and Employee.
The Employer wishes to take steps to ensure that the Employer
will continue to have the Employee's services available to the Employer and its
subsidiaries, and the Employer and the Employee desire to terminate and replace
the 1998 Agreement as of the Closing (as defined as that certain Investment
Agreement, dated as of May 24, 1999, between the Employer and Brera Classic, LLC
(the "Investment Agreement")).
In consideration of the foregoing, the mutual provisions
contained herein, and for other good and valuable consideration, the parties
agree to amend and restate in its entirety the 1998 Agreement, and agree with
each other as follows:
1. Employment. The Employer hereby employs the Employee, and
the Employee hereby accepts such employment, upon the terms and subject to the
conditions set forth in this Agreement.
2. Term. The term of employment under this Agreement shall
commence on the date of the Closing (the "Commencement Date") and shall continue
through July ___, 2001, provided, however, that beginning on the Commencement
Date, and on each day thereafter, the term of this Agreement shall be extended
by one additional day, unless either party to this Agreement gives the other
written notice of termination of employment.
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3. Compensation; Reimbursement.
(a) The Employer shall pay to the Employee as
compensation for all services rendered by the Employee during the term of this
Agreement a basic annualized salary of $350,000 per year (the "Basic Salary"),
or such other amount as the parties may agree on from time to time, payable in
equal monthly installments or in other more frequent installments, as determined
by the Employer. The Board of Directors of the Employer shall have the right to
increase the Employee's compensation from time to time by action of the Board of
Directors. In addition, the Board of Directors of the Employer, in its
discretion, may, with respect to any year during the term hereof, award a bonus
or bonuses to the Employee in addition to the bonuses provided for in Section
3(b). The compensation provided for in this Section 3(a) shall be in addition to
any pension or profit sharing payments set aside or allocated for the benefit of
the Employee.
(b) In addition to the Basic Salary paid
pursuant to Section 3(a), the Employer may pay as incentive compensation an
annual bonus based upon the Employee's performance, as determined each year by
the Board of Directors of the Employer.
(c) The Employer shall reimburse the Employee
for all reasonable expenses incurred by the Employee in the performance of his
duties under this Agreement; provided, however, that the Employee must furnish
to the Employer an itemized account, satisfactory to the Employer, in
substantiation of such expenditures.
(d) The Employee shall be entitled to continue
the use of his current corporate vehicle and such fringe benefits, including,
but not limited to, split-dollar life insurance, medical and other insurance
benefits, as may be provided from time to time by the Employer to other senior
officers of the Employer.
(e) The Employer will use all reasonable efforts
to have the appropriate provisions of this Agreement approved by the Employer's
shareholders, or take such other actions reasonably required to restructure the
payments hereunder in order to avoid taxes under Section 280G of the Internal
Revenue Code of 1986, as amended.
4. Duties. The Employee is engaged as the Chief Executive
Officer of the Employer and of the Employer's various subsidiaries. The Employee
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shall be a member of the Boards of Directors of the Employer and the Employer's
subsidiaries for so long as he is employed by the Employer. In addition, the
Employee shall have such other duties and hold such other offices as may from
time to time be reasonably assigned to him by the Board of Directors of the
Employer.
5. Extent of Services; Vacations and Days Off.
(a) During the term of his employment under this
Agreement, the Employee shall devote substantially all of his time, energy and
attention during regular business hours to the benefit and business of the
Employer in performing his duties pursuant to this Agreement.
(b) The Employee shall be entitled to vacations
with pay and to such personal and sick leave with pay in accordance with the
policy of the Employer as may be established from time to time by the Employer
and applied to other senior officers of the Employer.
6. Facilities. The Employer shall provide the Employee
with a fully furnished office, and the facilities of the Employer shall be
generally available to the Employee in the performance of his duties pursuant to
this Agreement, it being understood and contemplated by the parties that all
equipment, supplies and office personnel required for performance of the
Employee's duties under this Agreement shall be supplied by the Employer in
Austin, Texas.
7. Termination on Death, Illness or Incapacity.
(a) If the Employee dies during the term of his
employment, the Employer shall pay to the estate of the Employee the Basic
Salary that would have otherwise been paid to Employee through the end of the
term of this Agreement (provided that the term shall cease to be extended daily
pursuant to Section 2 hereof upon the death of Employee) plus any bonus
compensation earned but not yet paid up to the end of the month in which his
death occurs. The Employer shall have no additional financial obligation under
this Agreement to the Employee or his estate. After receiving the payments
provided in this subparagraph (a), the Employee and his estate shall have no
further rights under this Agreement.
(b) (i) During any period of disability,
illness or incapacity during the term of this Agreement which renders the
Employee at least temporarily unable to perform the services required under this
Agreement for a period which does not exceed one hundred and eighty (180)
continuous days in any one-year period, the
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Employee shall receive the compensation payable under Section 3(a) of this
Agreement plus any bonus compensation earned but not yet paid, less any benefits
received by him under any disability insurance carried by or provided by the
Employer. Upon the Employee's permanent disability (as defined below), the
Employee shall continue to receive the Basic Salary that would have otherwise
been paid to the Employee through the end of the term of this Agreement,
provided that the term shall cease to be extended daily pursuant to Section 2
hereof upon the permanent disability of Employee. Notwithstanding the
continuation of the Basic Salary as set forth above, the Employee shall continue
to receive any disability benefits to which he may be entitled under any
disability income insurance which may be carried by or provided by the Employer
from time to time.
(ii) The term "permanent disability" as
used in this Agreement shall mean the inability of the Employee, as determined
by the Board of Directors of the Employer, by reason of physical or mental
disability to perform the duties required of him under this Agreement for a
period of one hundred and eighty (180) days in any one-year period. Successive
periods of disability, illness or incapacity will be considered separate periods
unless the later period of disability, illness or incapacity is due to the same
or related cause and commences less than six months from the ending of the
previous period of disability. Upon such determination, the Board of Directors
may terminate the Employee's employment under this Agreement upon ten (10) days'
prior written notice. If any determination of the Board of Directors with
respect to permanent disability is disputed by the Employee, the parties hereto
agree to abide by the decision of a panel of three physicians. The Employee and
the Employer shall each appoint one member, and the third member of the panel
shall be appointed by the other two members. The Employee agrees to make himself
available for and to submit to examinations by such physicians as may be
directed by the Employer. Failure to submit to any such examination shall
constitute a breach of a material part of this Agreement.
8. Other Terminations.
(a) (i) The Employee may terminate his
employment hereunder upon giving at least ninety (90) days' prior written notice
to the Employer. In addition, the Employee shall have the right to terminate his
employment hereunder on the conditions and at the times provided for in Section
8(e) and Section 8(f) of this Agreement.
(ii) If the Employee gives notice pursuant
to Section 8(a) above, the Employer shall have the right to relieve the
Employee, in
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whole or in part, of his duties under this Agreement (without reduction in
compensation through the termination date set forth in the notice to the
Employer).
(b) The Employer may terminate Employee's
employment hereunder at any time, without prior notice.
(c) If the Employer shall terminate the
employment of the Employee without good cause (as defined below) effective on a
date earlier than the termination date provided for in Section 2, the Employee
shall have the nonforfeitable right to receive, the Basic Salary, matching 401-K
contributions consistent with past practice (to the extent permitted by law),
health insurance and other existing benefits, paid monthly, that he is entitled
to for the remainder of the term of this Agreement, and the Employer shall
continue to provide him with medical insurance coverage for the remainder of the
term of this Agreement; provided that, notwithstanding such termination of
employment, the Employee's covenants set forth in Sections 10 and 11 are
intended to and shall remain in full force and effect.
(d) (i) If the employment of the Employee is
terminated for good cause, or if the Employee voluntarily terminates his
employment without reliance on Section 8(e) or Section 8(f), the Employer shall
pay to the Employee any compensation earned but not paid to the Employee prior
to the effective date of such termination. Under such circumstances, such
payment shall be in full and complete discharge of any and all liabilities or
obligations of the Employer to the Employee hereunder, and the Employee shall be
entitled to no further benefits under this Agreement.
(ii) "Good cause" shall include:
(1) the Employee's
conviction of a criminal offense that has a material adverse effect
upon the business or reputation or the Employer or any affiliate of the
Employer;
(2) commission by the
Employee of a material breach of his duty of loyalty to the Employer or
any affiliate of the Employer, Sections 9 or 11 of this Agreement,
Section 2.3 of the Registration Rights Agreement, or the material
obligations under the Stockholder Agreement; provided, however, that
Employee shall have received written notice of such breach, providing
him an opportunity to cure such breach within ten (10) days of receipt
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of such warning and such breach is not cured within such time frame;
and
(3) the Employee's
willful failure or refusal to perform his assigned duties, which
willful refusal has had, or if continued, could reasonably be expected
to have, a material adverse effect on the Employer or the affiliates of
the Employer or their respective businesses or prospects, and which
willful refusal has continued after Employee has received at least one
written warning specifically advising him or his shortcomings and
providing him with an opportunity to resume performance in accordance
with his assigned duties and such shortcomings are not cured within ten
(10) days of receipt of such written warning.
(e) If (1) the Board of Directors of the
Employer elects to employ an executive chairman, or other executive officer to
whom the Employee would report, who is not a present member or employee of Brera
Capital Partners, LCC, and who will play a significant role in the Employer's
management and will receive a significant salary or an equity investment in the
Employer and (2) Employee determines, within ten (10) days of receiving notice
of the Board of Directors desire to employ such executive chairman, that such
individual is not reasonably acceptable to Employee to serve on such position,
then the Employee may, at his election, terminate his employment hereunder
during such ten (10) day period, and have such termination treated as a
termination without good cause by the Employer for all purposes of this
Agreement.
(f) If the Employer elects to terminate the
employment of Xxxxxx Seach without good cause (as defined in his Employment
Agreement with the Employer, dated as of the date hereof), then the Employee
may, at his election, terminate his employment hereunder within ten (10) days of
receiving notice of such termination of Xxxxxx Seach from the Employer, and have
such termination treated as a termination without good cause by the Employer for
all purposes of this Agreement.
(g) If the Employee's employment with the
Employer is terminated by the Employer without good cause or by the Employee
pursuant to Section 8(e) or Section 8(f), then all of the Employee's stock
options, and unvested common stock of the Employer will vest immediately. If the
Employee's employment with the Employer is terminated by the Employer with good
cause or by the Employee other than pursuant to Section 8(e) or Section 8(f),
then all of the
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Employee's unvested stock options shall no longer be eligible for vesting or
exercise. All vested stock options will be exercisable in accordance with their
terms.
(h) The parties agree that, because there can be
no exact measure of the damage that would occur to the Employee as a result of a
termination by the Employer of the Employee's employment without good cause, the
payments and benefits paid and provided pursuant to this Agreement shall be
deemed to constitute liquidated damages and not a penalty for the Employer's
termination of the Employee's employment without good cause, and the Employer
agrees that the Employee shall not be required to mitigate his damages.
9. Disclosure. The Employee agrees that during the term of his
employment by the Employer, he will disclose and disclose only to the Employer
all material ideas, methods, plans, developments or improvements known by him
which relate directly or indirectly to the business of the Employer, whether
acquired by the Employee before or during his employment by the Employer.
Nothing in this Section 9 shall be construed as requiring any such communication
where the idea, plan, method or development is lawfully protected from
disclosure as a trade secret of a third party or by any other lawful prohibition
against such communication.
10. Confidentiality. The Employee agrees to keep in strict
secrecy and confidence any and all information the Employee assimilates or to
which he has access during his employment by the Employer and which has not been
publicly disclosed and is not a matter of common knowledge in the fields of work
of the Employer. The Employee agrees that both during and after the term of his
employment by the Employer, he will not, without the prior written consent of
the Employer, disclose any such confidential information to any third person,
partnership, joint venture, company, corporation or other organization.
11. Non-Competition; Non-Solicitation. The Employee hereby
acknowledges that, during and solely as a result of his employment by the
Employer, he has received and shall continue to receive: (1) special training
and education with respect to the operations of a cable television company and
other related matters, and (2) access to confidential information and business
and professional contacts. In consideration of the special and unique
opportunities afforded to the Employee by the Employer as a result of the
Employee's employment, as outlined in the previous sentence, the Employee hereby
agrees as follows:
(a) During a period starting on the date hereof
and ending two years following the termination of his employment under this
Agreement, the
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Employee shall not, without the prior written consent of the Employer, (i)
directly or indirectly engage in any business that competes with the Employer or
any Affiliate of the Employer in their conduct of the cable television business,
or otherwise receive compensation for any services rendered regarding any aspect
of the cable television business anywhere within the states in which any cable
television system is operated by the Employer or any Affiliate of the Employer;
provided, however, that the Employee may participate as a passive investor in
businesses which are similar to that of the Employer so long as the investment
is limited to not more than 10% of the ownership interests of such entity;
provided further, that the Employee may continue to invest in Mid-South
Telecommunications Company, or (ii) engage or participate, directly or
indirectly, in any business which is substantially similar to that of the
Employer or any Affiliate of the Employer, including, without limitation,
serving as a consultant, administrator, officer, director, employee, manager,
landlord, lender, guarantor, or in any similar or related capacity or otherwise
receive compensation for services rendered regarding any aspect of the cable
television business anywhere within the states in which any cable television
system is operated by the Employer or any Affiliate of the Employer. The
Employee acknowledges that these limited prohibitions are reasonable as to time,
geographical area and scope of activities to be restrained and that the limited
prohibitions do not impose a greater restraint than is necessary to protect the
Employer's goodwill, proprietary information and other business interests. The
mere ownership of a de minimis amount of securities in any competitive
enterprise and exercise of rights appurtenant thereto, and participation in
management of any such enterprise or business operation other than in connection
with the competitive operation of such enterprise, are not prohibited.
(b) During his employment with the Employer and,
except as may be otherwise herein provided, for a period of two (2) years
following the termination of his employment with the Employer, regardless of the
reason for such termination, the Employee agrees he will refrain from and will
not, directly or indirectly, as an individual, partner, officer, director,
stockholder, employee, advisor, independent contractor, joint venturer,
consultant, agent, representative, salesman or otherwise (1) solicit any of the
employees of the Employer to terminate their employment or (2) accept employment
with or seek remuneration by any of the clients or customers of the Employer
with whom the Employer did business during the term of the Employee's
employment.
(c) The period of time during which the Employee
is prohibited from engaging in certain business practices pursuant to Sections
11(a) or (b) shall be extended by any length of time during which the Employee
is in breach of such covenants.
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(d) It is understood by and between the parties
hereto that the foregoing restrictive covenants set forth in Sections 11(a)
through (c) are essential elements of this Agreement, and that, but for the
agreement of the Employee to comply with such covenants, the Employer would not
have agreed to enter into this Agreement. Such covenants by the Employee shall
be construed as agreements independent of any other provision in this Agreement.
The existence of any claim or cause of action of the Employee against the
Employer, whether predicated on this Agreement, or otherwise, shall not
constitute a defense to the enforcement by the Employer of such covenants.
(e) It is agreed by the Employer and Employee
that if any portion of the covenants set forth in this Section 11 are held to be
invalid, unreasonable, arbitrary or against public policy, then such portion of
such covenants shall be considered divisible both as to time and geographical
area. The Employer and the Employee agree that, if any court of competent
jurisdiction determines the specified time period or the specified geographical
area applicable to this Section 11 to be invalid, unreasonable, arbitrary or
against public policy, a lesser time period or geographical area which is
determined to be reasonable, non-arbitrary and not against public policy may be
enforced against the Employee. The Employer and the Employee agree that the
foregoing covenants are appropriate and reasonable when considered in light of
the nature and extent of the business conducted by the Employer.
12. Specific Performance. The Employee agrees that damages at
law will be an insufficient remedy to the Employer if the Employee violates the
terms of Section 9, 10 or 11 of this Agreement and that the Employer would
suffer irreparable damage as a result of such violation. Accordingly, it is
agreed that the Employer shall be entitled, upon application to a court of
competent jurisdiction, to obtain injunctive relief to enforce the provisions of
such Sections, which injunctive relief shall be in addition to any other rights
or remedies available to the Employer. The Employee agrees to pay to the
Employer all costs and expenses incurred by the Employer relating to the
enforcement of the terms of Section 9, 10 or 11 of this Agreement, including
reasonable fees and disbursements of counsel (both at trial and in appellate
proceedings).
13. Put and Call Provisions with Respect to Employee.
(a) Termination without Good Cause. If the
Employee's employment with the Employer is terminated by the Employer without
good cause or
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by the Employee pursuant to Section 8(e) or Section 8(f), (i) the Employer shall
have the right 180 days after such termination (or, in the case of termination
by the Employee pursuant to Section 8(e), upon termination) to redeem from the
Employee, and the Employee shall have the obligation to permit the Employer to
redeem (a "Call"), all or part of the Employer's common stock owned by the
Employee and his "family members" (as defined in the Stockholders Agreement
dated as of July , 1999 among the Employer, the Employee and certain other
stockholders of the Employer), including all stock the Employee is entitled to
purchase under the stock options granted hereunder (collectively, the "Employee
Shares"), and (ii) for a period of 60 days from the date of such termination,
the Employee shall have the right to require the Employer to redeem, and the
Employer shall have the obligation to redeem, subject to the existence of
legally available funds therefore (a "Put"), all or part of the Employee Shares.
The purchase price of each share of the Employee Shares purchased pursuant to a
Put exercised hereunder shall be equal to its Fair Market Value on the date of
the Employee's termination. The purchase price of each share of the Employee
Shares purchased pursuant to a Call shall be equal to its Fair Market Value on
the date the Call is exercised. Notwithstanding the foregoing, any payment in
respect of a Put or a Call under this Section 13(a) shall be subject to any
covenant restrictions on such payment that might exist in the Employer's credit
agreements or indentures as from time to time in effect. If any Put or Call
pursuant to this Section 13(a) is prohibited by any covenant restrictions on
such payments under the Employer's credit agreements or indentures, the Employer
will use all reasonable efforts to obtain a waiver of such covenant
restrictions.
(b) Resignation; Permanent Disability. In the
event that Employee's employment with the Employer is terminated because he
resigns or because of his Permanent Disability, the Employer shall have the
right for a period of 60 days from the date of such termination to Call all of
the Employee Shares owned by Employee and members of his "family group". The
purchase price the Employee Shares purchased pursuant to a Call exercised
pursuant to this Section 13(b) shall be equal to its Fair Market Value on the
date of Employee's termination.
(c) Termination for Good Cause. In the event
that Employee's employment with the Employer is terminated for "good cause," the
Employer shall have the right to Call all or part of the Employee Shares owned
directly or indirectly by Employee and members of his "family group" as of the
date of his termination. The purchase price for all such Employee Shares shall
be equal to the Fair Market Value of the Employee Shares acquired by the
Employer.
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(d) Notice and Delivery. The closing with
respect to any Put or Call of Employee Shares pursuant to this Section 13 shall
occur within 30 days of the delivery of a Put notice and 30 days within delivery
of a Call notice. The Employee and the Employer each agree to negotiate in good
faith determine the Fair Market Value of any Employee Shares to be purchased by
the Employer pursuant to this Section 13.
(e) Definitions.
(i) "Appraiser" means an independent
investment bank of national reputation.
(ii) "Appraised Value" means the value of
Employee Shares determined by one or more Appraisers. In the event that the
Employer and Employee cannot agree as to Fair Market Value for purposes of this
Agreement within 30 days of the event giving rise to the need to determine Fair
Market Value, the Employer and the Employee shall select an Appraiser to
determine Fair Market Value. If the Employer and the Employee cannot agree on
any one Appraiser within 10 days, the Employer and the Employee shall each
select an Appraiser within 5 days after such 10 day period and those two
Appraisers will select a third Appraiser within 5 days, the cost of which will
be split on an equal basis by the Employer and the Employee. The Appraisers will
be directed to determine Fair Market Value as soon as reasonably practicable,
but in no event later than 30 days from the date of their selection. If more
than one Appraiser is retained to determine Fair Market Value, Appraised Value
shall mean the average of the values determined by the Appraisers.
(iii) "Fair Market Value" means (A) as to
securities traded in the organized securities markets, the Market Value; and (B)
as to all securities not traded in the securities markets and other property,
the fair market value of such securities of property as determined in good faith
by the Board of Directors of the Employer; provided, however, if Employee and
the Employer cannot agree upon the fair market value of the Employee Shares to
be repurchased such fair market value will be determined as set forth below. In
the event that Employee and the Employer are unable to agree upon the Fair
Market Value of such securities or other property, then the Fair Market Value of
such securities or property will be the Appraised Value.
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(iv) "Market Value" as of a certain date
means, per share of common stock:
(1) the average of the
last sale prices, regular way, on the 20 consecutive business days
immediately preceding such date or, if there shall have been no sale on
any such day, the average of the closing bid and asked prices on such
date, in each case as officially reported on the principal national
securities exchange on which such common stock is at the time listed or
admitted to trading, or
(2) if such common
stock is not then listed or admitted to trading on any national
securities exchange, but is designated as a national market system
security by the NASD, the last trading price of the common stock on
such date, or if there shall have been no trading on such date or if
the common stock is not so designated, the average of the reported
closing bid and asked prices on such 20 days as shown by the NASD
automated quotation system.
14. Stock Options
(a) The Employee will be granted two stock
options to purchase common stock of Classic Communications, Inc. (the "Common
Stock") upon completion of the Closing. The stock options will have a ten (10)
year term. The first stock option will entitle Employee to purchase 279,874
shares of Common Stock at an exercise price of $14.57 per share and will vest
(i) on a monthly basis over a three-year period (1/36 per month) (subject to
accelerated vesting pursuant to this Agreement) or (ii) immediately upon closing
of a Liquidity Event which involves a sale of all of the Common Stock of the
Employee for cash or a sale of all or substantially all of the assets of the
Employer. The second stock option will entitle Employee to purchase 279,874
shares of Common Stock at the Liquidity Event Exercise Price (as defined below)
and will vest (y) on a monthly basis over a three-year period (1/36 per month)
which begins on the date of the closing of a Liquidity Event (as defined below)
which involves an initial public offering or a stock-for-stock merger or (z)
immediately upon the closing of a Liquidity Event which involves a sale of all
of the Common Stock of the Employee for cash or a sale of all or substantially
all of the assets of the Employer.
(b) For purposes of this Section 14, (i) the
term "Liquidity Event" means the sale of all of the outstanding Common Stock for
cash, stock or
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other securities by merger, tender offer, stock purchase or otherwise, the sale
of all or substantially all of the assets of the Employer, or an initial public
offering of the Employer's Common Stock; and (ii) the term "Liquidity Event
Exercise Price" shall mean (A) the gross sale price per share of Common Stock in
the initial public offering of the Employer's Common Stock and (B) in the event
the Liquidity Event involves a sale of the Employer's stock or assets, an amount
equal to $14.57 per share increased by 14% per annum from the Closing to the
date of the closing of such Liquidity Event.
(c) If the Employer shall effect (i) a
subdivision or consolidation of shares or other capital readjustment, the
payment of a stock dividend, or other increase or reduction of the number of
shares of the Common Stock outstanding without receiving compensation therefor
in money, services, or property, (ii) a merger of one or more corporations into
the Employer, or (iii) the merger of the Employer into or its consolidation with
another corporation, then the shares subject to the stock options as set forth
in this Section 14 shall, at no additional cost, include the number and class of
shares of stock or other securities to which the Employee is entitled pursuant
to the terms of such subdivision, consolidation, capital readjustment, stock
dividend, increase or reduction of the number of shares of Common Stock, or
merger, as the case may be, and the exercise price shall be adjusted
accordingly. If any such adjustment shall result in a fractional-share interest
being issuable, such fraction shall be disregarded.
15. Compliance with Other Agreements. The Employee represents
and warrants that the execution of this Agreement by him and his performance of
his obligations hereunder will not conflict with, result in the breach of any
provision of or the termination of or constitute a default under any Agreement
to which the Employee is a party or by which the Employee is or may be bound.
16. Waiver of Breach. The waiver by the Employer of a breach
of any of the provisions of this Agreement by the Employee shall not be
construed as a waiver of any subsequent breach by the Employee.
17. Assignment. The rights and obligations of the Employer
under this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Employer. This Agreement is a personal employment
contract and the rights, obligations and interests of the Employee hereunder may
not be sold, assigned, transferred, pledged or hypothecated.
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18. Entire Agreement. This Agreement contains the entire
agreement and supersedes all prior agreements and understandings, oral or
written, between the Employer (or its subsidiaries) and Employee, with respect
to the subject matter hereof, including, without limitation, the 1998 Agreement.
Employee agrees that he has no further rights under the 1998 Agreement or under
any other employment agreement or consulting agreement with Employer or any of
its affiliates provided that the Employee has been paid his accrued and unpaid
transaction compensation of $1,500,000 whether or not there has been any change
of control and additional compensation due upon a change of control in the
amount of $780,000(1) in connection with previous agreements. This Agreement may
be changed only by an agreement in writing signed by the party against whom any
waiver, change, amendment, modification or discharge is sought.
19. Construction and Interpretation.
(a) Notwithstanding the choice of law provisions
in the Investment Agreement and the other Transaction Agreements (as defined in
the Investment Agreement) this Agreement shall be governed by and construed
pursuant to the laws of the State of Texas.
(b) The headings of the various sections in this
Agreement are inserted for convenience of the parties and shall not affect the
meaning, construction or interpretation of this Agreement.
(c) Any provision of this Agreement which is
determined by a court of competent jurisdiction to be prohibited, unenforceable
or not authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or
non-authorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction. In any such case, such determination shall not affect any
other provision of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect. If any provision or term of
this Agreement is susceptible to two or more constructions or interpretations,
one or more of which would render the provision or term void or unenforceable,
the parties agree that a construction or interpretation which renders the term
or provision valid shall be favored.
----------------------------
(1)$700,000 for Xxxxx.
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20. Notice. All notices which are required or may be given
under this Agreement shall be in writing and shall be deemed to have been duly
given when received if personally delivered; when transmitted if transmitted by
telecopy or similar electronic transmission method; one working day after it is
sent, if sent by recognized expedited delivery service; and five days after it
is sent, if mailed, first class mail, certified mail, return receipt requested,
with postage prepaid. In each case notice shall be sent:
To the Employer: Classic Communications, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
With copies to: Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
And copies to: Brera Classic, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxx
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And copies to: Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois)
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
To the Employee: at the address dated in the preamble hereto
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first-above written.
CLASSIC COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Seach
------------------------------------------
Name: Xxxxxx X. Seach
Title: President and Chief Financial Officer
CLASSIC CABLE, INC.
By: /s/ Xxxxxx X. Seach
------------------------------------------
Name: Xxxxxx X. Seach
Title: President and Chief Financial Officer
J. XXXXXXX XXXXXXX
/s/ J. Xxxxxxx Xxxxxxx
------------------------------------------
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