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Exhibit 10.201
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT made as of this _____ day of _________________, 1998,
(this "Agreement") by and between Xxxxxx Communications Corporation, a Delaware
corporation with its principal place of business at 000 Xxxxxxxxxx Xxxx Xxxx,
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000 ("Company") and Xxxxxx X. Tek, an
individual, currently residing at the address set forth under such individual's
signature below (the "Executive") (collectively, the "Parties").
WHEREAS, Company desires to employ Executive as Vice President, Treasurer and
Chief Financial Officer, and the Parties desire to enter into this agreement to
secure Executive's employment as Vice President, Treasurer and Chief Financial
Officer during the term hereof, all on the terms and conditions set forth
herein.
NOW, THEREFORE, the Parties agree as follows:
1. The Company agrees to employ the Executive and the Executive agrees to
serve the Company as Vice President, Treasurer and Chief Financial
Officer based primarily at the Company's West Palm Beach, Florida
offices, on the terms and conditions hereinafter set forth.
2. Employment of the Executive by the Company pursuant to this Agreement
will be for a five (5) year period commencing effective January 1,
1998, unless sooner terminated, pursuant to Paragraph 7 hereof (the
"Term of Employment").
3. Subject to the direction and control of the Chairman of the Board and
Chief Executive Officer, and such other senior executive officer as the
Chairman of the Board may direct to whom Executive will report, the
Executive shall have all of the power and authority inherent in the
position of Vice President, Treasurer and Chief Financial Officer and
shall supervise and be responsible for the operations and management of
the Company and its subsidiaries. The Executive shall also have such
other executive powers and duties, consistent with his responsibilities
as Vice President, Treasurer and Chief Financial Officer, as may, from
time to time, be prescribed by the Chairman of the Board and Chief
Executive Officer. The Executive agrees to render his services under
this Agreement loyally and faithfully, to the best of his abilities and
in substantial conformance with all laws, rules and
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Company policies, and in connection therewith, will not improperly or
without good cause, in the best interest of the Company, disclose any
trade secrets or other confidential information of the Company. Without
limiting the foregoing, except as expressly modified herein, Executive
shall be subject to all of the Company's policies including payola,
plugola and conflicts of interests, as well as the following:
(a) Executive will comply with all the Company and professional
standards governing Executive's objectivity in the performance
of Executive's duties, including restrictions on outside
activities, investments, business interests, or other
involvements which could compromise Executive's objectivity or
create an impression of conflict of interest. Executive will
not, without the prior approval of the Chairman of the Board
or the Chief Executive Officer , accept any gift,
compensation, or gratuity (which excludes business meals and
entertainment received by Executive in the ordinary course of
business) from any person or entity with which the the Company
or any of its broadcast properties is or may be in competition
or in any instance where there is a stated or implied
expectation of favorable treatment of that person or entity.
Executive will not, without the prior written approval of the
Chairman of the Board or the Chief Executive Officer, take
advantage of any business opportunity or situation or engage
in any enterprise or venture of which the the Company may have
an interest on his or her own behalf, if said business
opportunity or situation, enterprise or venture is related in
any way to or is similar to the business of the the Company.
(b) In performing Executive's duties under this Agreement,
Executive shall conduct himself with due regard to social
conventions, public morals and standards of decency, and will
not cause or permit any situation or occurrence which would
tend to degrade, scandalize, bring into public disrepute, or
otherwise lower the community standing of Executive or the
Company's public image.
4. Company will pay the Executive a base salary (the "Base Salary"), to be
paid on the same payroll cycle as other salaried employees of the
Company, at an annual rate for 1998 of $236,250, which Base Salary
shall be increased annually, effective January 1 of each year
thereafter during the Term of Employment, by an amount
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equal to not less than 10% of the Base Salary in effect for the most
recently ended calendar year.
In addition to the Base Salary, the Executive agrees to participate in
the Company's Executive Bonus Plan and receive bonus awards from time
thereunder, subject to the satisfaction of the terms and conditions set
forth therein. Without limiting the foregoing, nothing shall preclude
Executive from receiving special cash bonus awards not included within
the Executive Bonus Plan, as determined from time in the sole
discretion of the Company. In addition to Executive's Base Salary and
participation in the Executive Bonus Plan, Executive may, as determined
from time to time, in the sole discretion of the Company, be eligible
to receive or participate in various non-cash compensation programs,
including, without limitation, annual and special non-cash bonus
awards, grants of stock options, restricted stock, "phantom-equity" and
stock appreciation rights (collectively, "Non-Cash Bonus Awards").
Employee's rights in respect of any Non-Cash Compensation shall be
governed under the terms of a separate document or documents, if any
Non-Cash Compensation is to be awarded to Employee.
The Company will have the right to withhold from payments otherwise due
and owing to Executive or to require the Executive to remit to the
Company in cash upon demand an amount sufficient to satisfy any federal
(including FICA and FUTA amounts), state, and/or local withholding tax
requirements at the time the Executive recognizes income for federal,
state, and/or local tax purposes with respect to any payments to
Executive under the terms hereof or under any other compensation
arrangements, including, Non-Cash Compensation. If any excise tax
withholding by the Company is required pursuant to Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") on an "excess
parachute payment," as this term is defined in Section 4999 of the
Code, in connection with any payments made under the terms hereof, or
under any other compensation arrangements, including, the Executive
Bonus Plan and any Non-Cash Compensation, the Company will be required
to pay compensation to the Executive ("Gross-Up Payment") in an amount
equal to the excise tax withholding required to be withheld by the
Company on such amounts paid to Executive and the Gross-Up Payment
itself. The Company then will withhold the Gross-Up Payment to satisfy
this withholding obligation. Except as otherwise provided by this
Paragraph 4, the Company will not be liable to
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Executive for any tax consequences incurred by Executive with respect
to payments to Executive under the terms hereof or under any other
compensation arrangements, including, Non-Cash Compensation.
5. During the Term of Employment, the Executive shall be eligible to
participate in all employee benefit plans and arrangements now in
effect or which may hereafter be established, which are generally
available to other senior executives of the Company, including, without
limitation, all life, group insurance and medical plans and all
disability, retirement and other employee benefit plans of the Company,
as long as any such plan or arrangement remains generally applicable to
other senior executives of the Company.
6. The Executive shall be reimbursed for all reasonable expenses incurred
by him in the discharge of his duties, including, but not limited to,
expenses for entertainment and travel. The Executive shall account to
the Company for all such expenses.
7. Notwithstanding the provisions of Paragraph 2 of this Agreement, the
Executive's Term of Employment pursuant to this Agreement shall
terminate on the earliest of the following dates:
(a) The date of the Executive's death. In such event, the Company
shall pay to the Executive's legal representatives or named
beneficiaries (as the Executive may designate from time to
time in a writing delivered to the Company) the Executive's
Base Salary for a one (1) year period following the date of
the Executive's death;
(b) If the Board of Directors chooses to give the Executive notice
of termination of his employment due to his disability, as
defined in the Company's Long Term Disability Plan, a date
specified in the notice which shall be not less than thirty
(30) days after the date on which the notice is received by
the Executive. In the event that the Executive's employment is
terminated due to his disability under this subparagraph (b),
the Executive or the Executive's legal representative shall
continue to be paid the Executive's Base Salary then in effect
for the lesser of (i) two years and (ii) the remaining Term of
Employment. If, prior to the specified termination date in
such notice by the Company, the Executive's illness or
disability has terminated and the
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Executive has resumed his duties under this Agreement, the
Executive shall be entitled to resume employment under this
Agreement as though such notice had not been given. The
opinion of the Executive's physician as to disability shall be
deemed presumptively valid;
(c) If the Board of Directors chooses to give the Executive notice
of termination of his employment for "good cause", a date
specified in the notice, consistent with the provisions of
subparagraph (c). The term "good cause" as used in this
Agreement shall mean the occurrence of any of the following
events:
(i) Executive's arrest for the commission of (A) a
felony, (B) any criminal act with respect to
Executive's employment (including any criminal act
involving a violation of the Communications Act of
1934, as amended, or regulations promulgated by the
Federal Communications Commission), or (C) any act
that materially threatens to result in suspension,
revocation, or adverse modification of any FCC
license of any broadcast station owned by any
affiliate of the Company or would subject any such
broadcast station to fine or forfeiture;
(ii) Executive's taking of any action or inaction which
would cause the Company to be in default under any
material contract, lease or other agreement;
(iii) Executive's dependence on alcohol or illegal drugs;
(iv) Failure or refusal to perform according to or follow
the lawful policies and directives of the Chairman of
the Board or the Chief Executive Officer;
(v) Executive's misappropriation, conversion or
embezzlement of the assets of the Company or any
affiliate of the Company;
(vi) A material breach of this Agreement by Executive,
including engaging in action in violation of
Paragraph 8 of this Agreement; or
(vii) Any representation of Executive in Paragraph 9 of
this Agreement being false when made; or
(viii) The Executive voluntarily, including retirement,
ceases his employ with the Company at a time when the
Company is not in material breach of this Agreement.
In the event of a termination under this subparagraph (c),
other than pursuant to clause (c)(vIII), the Company shall
notify the Executive of its
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intentions to terminate his employment and the specific
reason(s) therefore, and the Executive, on at least ten (10)
business days notice, shall have had an opportunity to respond
thereto; and, provided further, if the basis for such
termination is susceptible of being cured by the Executive,
the Company shall afford the Executive a reasonable period,
not to exceed 60 days, to effect such cure, and the
Executive's employment may not be terminated during said
period.
In the event of termination for good cause, the Company will
be released from all further obligation to the Executive under
this Agreement, except for such salary as may have been earned
or bonus award made but not paid prior to the termination;
(d) The date on which the Board of Directors chooses to notify the
Executive that the Board of Directors, in its sole discretion,
has determined that it is in the best interest of the Company
to terminate the Executive's employment. In the event of such
termination, the Executive will continue to be paid the
Executive's Base Salary then in effect for the lesser of (i)
two years and (ii) the remaining Term of Employment;
(e) On the date that the Executive terminates his employment for
Good Reason. For purposes of this subparagraph (e), "Good
Reason" shall mean that the Company has breached any of the
material terms, conditions and provisions of this Agreement.
In such case, the Executive shall notify the Company of his
intentions to terminate his employment and the specific
reason(s) therefor, and the Company, on at least ten (10)
business days notice, shall have an opportunity to respond
thereto; and, provided further, if the basis for such
termination is susceptible of being cured by the Company, the
Executive shall afford the Company a reasonable period, not to
exceed 60 days, to effect such cure, and the Executive may not
terminate his employment during said 60 day period. In the
event of such termination, the Executive will continue to be
paid Executive's Base Salary then in effect for the lesser of
(i) two years and (ii) the remaining Term of Employment;
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(f) If, within one year after a Change of Control (as defined
below), the Company terminates Executive's employment with the
Company without Cause, the Executive will continue to be paid
Executive's Base Salary then in effect for the lesser of (i)
two years and (ii) the remaining Term of Employment. For
purposes of this Agreement:
(i) A "Change of Control" will occur if (a) none of
Xxxxxx X. Xxxxxx, his estate, his wife, his lineal
descendants, or any trust created for the sole
benefit of any one or more of them during their
lifetimes, or any combination of any of the
foregoing, shall (i) own, directly or indirectly, at
least 35 percent of the issued and outstanding
capital stock of the Company or (ii) have voting
control, directly or indirectly, equal to at least 51
percent of the issued and outstanding capital stock
of the Company entitled to vote in the election of
Board of Directors of the Company; (b) the approval
by the shareholders of the Company of a
reorganization, merger, or consolidation, in each
case, with respect to which persons who were
shareholders of the Company immediately prior to this
reorganization, merger or consolidation do not,
immediately thereafter, own more than 50 percent of
the combined voting power entitled to vote generally
in the election of directors of the reorganized,
merged or consolidated company's (or any successor
entity's) then outstanding securities; or (c) a
liquidation or dissolution of the Company or of the
sale of all or at least 80 percent of the Company's
assets.
(g) The expiration of the Term of Employment as described in
Paragraph 2 of this Agreement.
Following the termination of the Executive's employment under
this Agreement upon the original stated Term of Employment,
the Company will have no further liability to the Executive
hereunder and no further payments will be made to him, except
as provided in subparagraphs (a) through (f) above or any
bonus awards not paid as of such termination, and except to
the extent that the Executive qualifies for benefits under any
employee benefit plan available to the Executive as provided
in Paragraph 5.
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8. Executive agrees that from the date of this Agreement until the
Covenant Termination Date (as defined in Paragraph 8(a) below),
Executive will not, directly or indirectly, whether as sole proprietor,
partner, lessor, venturer, stockholder, director, officer, employee,
consultant or in any other capacity as principal or agent or through
any person, subsidiary, affiliate or employee acting as nominee or
agent, engage or participate in any of the following actions:
(i) Owning, leasing, managing, operating, controlling or
providing financial assistance (other than (i) in
connection with services provided by Executive as the
employee of a commercial or investment bank or
similar financial services business or consulting
business which extends credit to, makes investments
in, or provides financial advice or consulting
services to, broadcasting companies;
(ii) as an attorney in a practice of law) to any national
(e.g. reaching more than 30% of nationwide television
households) broadcast or cable television network or
television programming service; (ii) Influencing or
attempting to influence any person or entity who is a
contracting party with the Company or any subsidiary
thereof (the "Xxxxxx Group") to terminate any written
or oral agreement with such member of the Xxxxxx
Group; or
(iii) Hiring or attempting to hire for employment any
person who is employed by any member of the Xxxxxx
Group or attempting to influence any such person to
terminate employment with any member of the Xxxxxx
Group.
Nothing herein shall prohibit Executive from investing in any broadcast
company where such investment does not cause Executive to be an
"affiliate" of such entity under the terms of the Securities Act of
1993.
(a) "COVENANT TERMINATION DATE" means:
(i) If Executive's employment is terminated pursuant toa
termination for good reason pursuant to Paragraph
7(e), the earlier of (i) the last day of the 6th full
calendar month after the termination of employment
and (ii) the expiration of the Term of Employment.
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(ii) If Executive's employment is terminated pursuant to a
termination for good cause under Paragraph 7(c) or a
change of control under Paragraph 7(f), the last day
of the 12th full calendar month after the date on
which Executive's employment is terminated.
(iii) If Executive's employment is terminated pursuant to a
termination for any reason other than by Executive
under Paragraph 7(e), or by Company under Paragraphs
7(c) and 7(f), the date on which Executive's
employment is terminated.
(b) Executive agrees that the Covenant Not to Compete is a
material part of Executive's obligations under this Agreement
for which the Company has agreed to compensate Executive as
provided in this Agreement. Accordingly, if Executive at any
time materially breaches this Covenant Not to Compete and the
Company is in compliance with all of its obligations hereunder
and under any other compensation agreements or arrangements
with Executive, then all rights of Executive to compensation
under this Agreement shall immediately terminate, Company
shall have no further liability to Executive and no further
payments (if any are otherwise required to be made hereunder)
shall be required to be made to Executive.
(c) Executive expressly agrees that the services (s)he will render
are of a special and extraordinary character that gives them a
unique value; that the loss of such services could not be
reasonably or adequately compensated by an action for damages;
and that the Company may enforce this non compete covenant
without proof of actual damages. Executive expressly agrees
that his(her) services have special and unique value to the
Company and that the Company would be irreparably injured by a
breach of this Paragraph 8. Further, Executive acknowledges
the legitimate business interest of the Company in the
protection of its trade secrets, confidential business lists
and records, listener/client goodwill and the training
provided during employment. Necessarily, then, any
relationship of Executive with another broadcast entity in the
markets enumerated above during this non-compete period would
involve the transfer of one or all of these items to that
entity. The Executive agrees that the provisions in these
paragraphs of Paragraph 8 are reasonably necessary for the
protection of the Company's
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business; that they are not unreasonably restrictive of
his(her) rights; and that (s)he feels that any of these
restrictions placed upon him(her) are not prejudicial to the
public interest.
(d) If the covenant in this Paragraph 8 is held to be
unenforceable in any jurisdiction because of the duration or
scope thereof, the court making such determination shall have
the power to reduce the duration and/or scope of the provision
or covenant, and the provision or covenant in its reduced form
shall be enforceable; provided, however, that the
determination of such court shall not affect the
enforceability of this Paragraph 8 in any other jurisdiction.
9. To induce the Company to enter into this Agreement and to employ
Executive Executive, Executive represents and warrants to the Company
as of the date hereof and as of each date of payment of any
compensation under the terms hereof as follows:
(a) The execution, delivery and performance of this Agreement by
Executive does not conflict with result in a breach of, or
constitute a default under any covenant not to compete or any
other agreement, instrument, or license, to which Executive is
a party or by which Executive is bound.
(b) Executive has not:
(i) Been convicted of any felony;
(ii) Committed any criminal act with respect to
Executive's current or any prior employment
(including any criminal act involving a violation of
the Communication Act of 1934, as amended, or
regulations promulgated by the FCC), or
(iii) Committed any act that materially threatened to
result in suspension, revocation, or adverse
modification of any FCC license of any broadcast
station or which subjected any broadcast station to
fine or forfeiture.
(c) Executive is not dependent on alcohol or illegal drugs.
Executive recognizes that the Company shall have the right to
conduct random drug testing of its employees and that
Executive may be called upon in such a manner.
10. Any dispute regarding this Agreement shall be decided by arbitration by
a single arbitrator in West Palm Beach, Florida, in accordance with the
Expedited Arbitration Rules
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of the American Arbitration Association then obtaining unless the
Parties mutually agree otherwise; and, provided further, that both
Parties will be entitled to all rights of discovery in connection with
such arbitration, including, without limitation, all discovery rights
described in the Florida Rules of Civil Procedure. This undertaking to
arbitrate shall be specifically enforceable. The decision rendered by
the arbitrator will be final and judgment may be entered upon it in
accordance with appropriate laws in any court having jurisdiction
thereof. During any arbitration proceeding initiated by the Executive,
the Company agrees, to the extent that it may legally do so, to
continue the Executive in the Company's long-term disability, life and
medical insurance plans.
11. Both during and after the Term of Employment, neither Party will
disclose the financial terms of this Agreement to persons not involved
in the operations of the business of the Company, except as required by
applicable law, regulation, the rules or regulations of a stock
exchange or association on which securities of the Company or any
parent company thereof are listed or legal process (including, without
limitation, oral questions, interrogatories, requests for information
or documents, subpoenas, civil investigative demands, orders, judgments
or decrees). As to persons involved in the operations of the business
of the Company, disclosure of such terms may be made only on a
need-to-know basis. This restriction shall not apply to members of the
Executive's immediate family nor to the Executive's professional
advisers, lenders and investors, provided such persons agree to keep
the financial terms confidential and not disclose them to third
parties.
12. Any waiver by either Party of a breach of any provision of this
Agreement shall not operate as to be construed to be a waiver of any
other breach of such provision of this Agreement. The failure of a
Party to insist upon strict adherence to any term of this Agreement on
one or more occasions shall not be considered a waiver or deprive that
Party of the right thereafter to insist upon strict adherence to that
term or any other term of this Agreement. Neither this Agreement nor
any part of it may be waived, changed or terminated orally, and any
amendment or modification must be in writing and signed by each of the
Parties. Any waiver of any right of the Company hereunder or any
amendment hereof shall require the approval of the members of the
Compensation Committee of the Board of Directors who are not employees
of the Company or, if the Company does not have a Compensation
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Committee or the Compensation Committee does not have any members who
are not employees of the Company, by the members of the Board of
Directors who are not employees of the Company. Until such approval or
waiver has been obtained, no such waiver or amendment shall be
effective.
13. The obligations and rights of the Executive under this Agreement shall
inure to the benefit of and shall be binding upon the heirs and legal
representatives of the Executive. Neither Party may assign this
Agreement without the prior written consent of the other.
14. This Agreement may be executed in any number of counterparts, each of
which shall, when executed, be deemed to be an original and all of
which shall be deemed to be one and the same instrument.
15. No action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or
agreements contained herein or made pursuant hereto.
16. This Agreement will be governed and construed and enforced in
accordance with the laws of the State of Florida.
17. This Agreement contains the entire understanding of the Parties
relating to the subject matter of this Agreement and supersedes all
other prior written or oral agreements. The Executive acknowledges
that, in entering into this Agreement, he does not rely on any
statements or representations not contained in this Agreement.
18. Any term or provision of this Agreement which is determined to be
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction.
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19. Except as otherwise specifically provided in this Agreement, all
notices and other communications required or permitted to be given
under this Agreement shall be in writing and delivery thereof shall be
deemed to have been made when such notice shall have been either (i)
deposited in first class mail, postage prepaid, return receipt
requested, or any comparable or superior postal or air courier service
then in effect, or (ii) transmitted by hand delivery, telegram, telex,
telecopier or facsimile transmission, to the party entitled to receive
the same at the address indicated below or at such other address as
such party shall have specified by written notice to the other party
hereto given in accordance herewith:
if to the Company: Xxxxxx X. Xxxxxx
Chairman
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
if to the Executive: address below Executive's signature below
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties as of the first date written above.
Name: Xxxxxx X. Tek
Address:
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XXXXXX COMMUNICATIONS CORPORATION
By:
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Name:
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Title:
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