Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT made as of this lst day of January, 1997 by and between
CENTURY COMMUNICATIONS CORP., a corporation organized and subsisting under the
laws of New Jersey, and whose address for the purposes of this Agreement is 00
Xxxxxx Xxxxxx, Xxx Xxxxxx, XX 00000 (the "Company"), and XXXXXXX X. XXXXXXXXX,
an individual, residing at 000 Xxxx Xxxx Xxxx Xxxx, Xxx Xxxxxx, XX 00000
("Employee").
W I T N E S S E T H:
WHEREAS:
A. The Employee is presently employed by the Company as its
chief operating officer.
B. The Company desires that it continue to employ the Employee
in such capacity or such other capacities as may be permitted by this Agreement,
and under all of the terms, provisions and conditions set forth herein.
C. Employee is willing to accept such continued employment,
and such other employment as may be provided for herein, all under the terms,
provisions and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth and other good and
valuable consideration, the receipt and adequacy of which is mutually
acknowledged, it is agreed by and between the parties as follows:
1. Representations and Warranties
1.1 Employee represents and warrants that he is not subject to
any restrictive covenants or other agreements or legal restrictions in favor of
any person which would in any way preclude, inhibit, impair or limit his
employment by the Company or the performance of his duties, all as contemplated
herein.
2. Employment
2.1 The Company hereby employs Employee and Employee accepts
such employment as chief operating officer of the Company. As its chief
operating officer, Employee shall supervise and be responsible for the
operations and administration of the business activities of the Company, subject
to the direction and control of the chief executive officer of the Company
and/or the Board of Directors of the Company. At the direction of the chief
executive officer or Board of Directors of the Company, Employee shall also
serve in such other senior executive and/or administrative capacities with any
subsidiaries of the Company ("Subsidiaries" or individually a "Subsidiary", as
hereafter defined), as the Board of Directors or the chief executive officer of
the Company may determine. Without
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limitation of the foregoing, Employee agrees to act as chief executive officer
of Centennial Cellular Corp.
2.2 Subject to Employee's election as such by the Board of
Directors and/or the Board of Directors of one or more Subsidiaries, Employee
agrees to act and serve as President of the Company and as Chairman or President
of all applicable Subsidiaries and, if duly elected, agrees further to serve and
act as a director of the Company and all applicable Subsidiaries. Without
limitation of the foregoing, Employee agrees to act as a Director and as
Chairman of Centennial Cellular Corp. Employee also agrees to adhere to all
fiduciary duties and responsibilities inherent in the office of President of the
Company and as an officer of any of the Subsidiaries and, if elected, as a
director of the Company and of any Subsidiaries, and to comply with all
applicable laws relating to same.
3. Place of Employment
3.1 Employee shall render his services where and as required
by the Company, it being understood and agreed, however, that Employee's base of
operations shall be the greater Fairfield County, Connecticut and/or Westchester
County, N.Y. areas and that Employee shall not be required to render his
services on a permanent basis outside of said areas. In conformance with the
foregoing and not in limitation thereof, Employee agrees to take such trips
outside said areas from time to time as shall be consistent with or reasonably
necessary in connection with his duties.
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4. Term
4.1 The term of this Agreement (the "Term") shall be three
consecutive years commencing January 1, 1997 and expiring on December 31, 1997.
4.2 In the event this Employment Agreement has not then been
terminated, the parties hereto agree that within the last six months of the
Term, they shall meet to negotiate the terms and provisions relating to a
renewal or extension of this Agreement, it being understood and agreed that
nothing herein shall obligate either of the parties to come to agreement with
respect to any such renewal or extension.
5. Compensation
5.1 Subject to prior termination, as compensation for all
services rendered and to be rendered by Employee hereunder and the fulfillment
by Employee of all of his obligations herein, the Company shall pay Employee a
base salary (the "Base Salary") at the rate of $400,000 per year for each year
of the Term on such days as the Company normally pays its employees and subject
to such withholdings as may be required by law. The Base Salary for each of the
second and third years of the Term (an "Applicable Year"), as the case may be,
shall be increased by the percentage increase in the Consumer Price Index
prepared by the United States Labor Department for the United States as a whole,
or equivalent measure of increase in the cost of living if such Consumer Price
Index is not then being issued (hereafter
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sometimes referred to as the "Consumer Price Index"), for the last
calendar month in the year immediately preceding such Applicable Year (the
"Preceding Year") over and above such Consumer Price Index for the corresponding
month of the year immediately preceding the "Preceding Years".
5.2 Nothing herein shall prevent or preclude the Board of
Directors of the Company or the applicable committee of the Board of Directors,
in its sole discretion, and from time to time, to award a bonus or bonuses to
Employee for his services as an Employee and/or from awarding or granting
Employee (i) options to acquire shares of stock in the Company or (ii) shares of
stock in the Company or (iii) any other incentive or stock related awards in
addition to Base Salary. In exercising its discretion with respect to whether a
bonus should be awarded and the amount thereof, the Board or the applicable
Committee may consider among other factors, the contribution of Employee (i) to
the growth in revenues, cash flow and subscribers of the Company and those
subsidiaries to or for which Employee renders service, (ii) in connection with
acquisitions, offering of securities and various financings, and (iii) to the
operations of the Company and its various subsidiaries.
6. Reimbursement for Business Expenses Fringe Benefits
6.1 The Company agrees that all reasonable expenses incurred
by Employee in the discharge and fulfillment of his duties for the Company, as
set forth in
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Section 2, will be reimbursed or paid by the Company upon written substantiation
therefor signed by Employee, itemizing said expenses and containing all
applicable vouchers. Without limitation of the foregoing the Company shall
provide Employee with an automobile for use by Employee in the performance of
his duties, and for the maintenance thereof. The automobile shall be of the type
presently being provided to Employee by the Company and shall be no more than
three years old.
6.2 The Company agrees that it will cause Employee to be
insured under such group life, medical, major medical and disability insurance
that the Company may maintain and keep in force from time to time during the
Term for the benefit of all of the Company employees, subject to the terms,
provisions and conditions of such insurance and the agreements with underwriters
relating to same. It is understood and agreed that in its discretion the
Company, from time to time may terminate or modify any or all of such insurance
without obligation or liability to Employee.
7. Exclusivity
7.1 During the Term, employee agrees to devote his services
and his best energies and abilities, exclusively, to the business and activities
of the Company, including any Subsidiaries, and not engage or have an interest
in or perform services for any other business or entity of any kind or nature;
provided, however, that
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nothing herein shall prevent Employee from investing in (but not rendering
services to) other businesses (other than for charitable organizations, provided
same does not interfere with Employee's performance of his duties hereunder)
which are not competitive in any manner with the business then being conducted
by the Company or any of its Subsidiaries, or in investing in (but not rendering
services to) other businesses which are competitive in any manner with the
business then being constructed by the Company, provided in the latter instance,
that (i) the shares of such business are listed and traded over either a
national securities exchange or in the over-the-counter market, and (ii)
employee's stock interest or potential stock interest (based on grants, options,
warrants, or other arrangements or agreements then in existence) in any such
business which is so traded (together with any and all interest, actual and
potential, of all members of Employee's immediate family) is not a controlling
or substantial interest and specifically does not exceed one percent of the
issued and outstanding shares or a one percentage interest of or in such
business.
8. Uniqueness
8.1 Employee agrees that his services hereunder are special,
unique and extraordinary and that in the event of any material breach or
attempted material breach of this Agreement by Employee including, without
limitation, the provisions of Section 9 and 10, the Company will sustain
substantial injury and damage, and Employee hereby consents
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and agrees that, in the event of breach hereof, the Company shall be entitled to
injunctive relief against Employee or any third party to prevent or in respect
of any such breach, in addition to such other rights or remedies available to
it. Employee's said consent and agreement shall not survive the expiration date
set forth in Section 4.1 (December 31, 1999) except as same relates to any of
Employee's obligations pursuant to Section 9.1 and 10.1 hereof.
9. Trade Secrets
9.1 Employee acknowledges that his employment hereunder will
necessarily involve his understanding of and access to certain trade secrets and
confidential information pertaining to the businesses and activities of the
Company and its Subsidiaries. Accordingly, Employee agrees that during the
period of employment and at all times thereafter, he will not disclose to any
unauthorized third party any such trade secrets or confidential information and
will not (other than in connection with carrying out his duties) for any reason
remove or retain without the express consent of the Company any figures or
calculations, letters, papers, records or other information of a type likely to
be regarded as confidential. The provisions of this Section shall survive the
termination, for any reason, of this Agreement or the Employee's employment.
10. Inventions, Creations
10.1 All right, title and interest of every kind and nature
whatsoever in and to inventions, patents,
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trademarks, copyrights, films, scripts, ideas, creations, intellectual property
and literary, intellectual and other properties furnished to the Company or any
of its Subsidiaries and/or used in connection with any of the activities of the
Company or any of its Subsidiaries, or with which Employee is connected or
associated in connection with the performance of his services, shall as between
the parties hereto be, become and remain the sole and exclusive property of the
Company or any of its Subsidiaries, as the case may be, for any and all purposes
and uses whatsoever, regardless of whether the same were invented, created,
written, developed, furnished, produced or disclosed by Employee or by any other
party, and Employee shall have no right, title or interest of any kind or nature
therein or thereto, or in any results and proceeds therefrom. Employee agrees
during and after the term hereof to execute any and all documents which the
Company may deem necessary or appropriate to effectuate the provisions of this
Section 10.1 and, further, that the provisions of this Section shall survive the
termination, for any reason, of this Agreement or Employee's employment.
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11. Death - Permanent Incapacity
11.1 The death of Employee shall work an immediate termination
of this Agreement, in which event no additional Base Salary shall be paid to
Employee except that the payments of Base Salary, to which Employee would have
been entitled to receive were he not deceased and were he fully performing his
obligations hereunder, shall continue to be paid to his estate or legal
representatives during the balance of the Term.
11.2 In the event Employee suffers a disability which prevents
him from performing his services hereunder (herein called "Disability"), and in
the event such Disability continues for longer than 90 consecutive days or 120
days in any 12-month period, Employee shall be deemed to have suffered a
Permanent Incapacity, in which event the Company shall have the right to
terminate this Agreement upon not less than fifteen days' notice to Employee,
and this Agreement shall terminate on the date set forth therefor in said
notice.
Upon termination of this Agreement by reason of such Permanent
Incapacity, Employee's Base Salary shall continue to be paid to Employee or his
legal representatives during the greater of (i) the balance of the Term, and
(ii) a period of not less than 12 months.
11.3 In the event there is a dispute between the parties as to
whether or not Employee has suffered a Permanent Incapacity, same shall be
determined by an
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impartial physician located in the City of New York and agreed upon by the
parties or, failing agreement within 10 days of a written request therefor by
either of the parties to the other, then such a physician as may be designated
by the then acting President of the New York Academy of Medicine or if he fails
or is unable to designate such impartial physician, then one designated by the
Chief of Medicine at one of the following hospitals or medical centers located
in New York City and selected by the Company: (i) New York Hospital, (ii)
Columbia Presbyterian Hospital, (ii) New York University (or Tisch) Hospital,
(iv) Mt. Sinai Hospital, and if no such hospital shall designate such physician,
as designated by the American Arbitration Association. The determination of any
such physician shall be final and binding upon the parties hereto. In the event
any of said hospitals is merged or consolidated with or into, or is acquired by
another of said hospitals, the surviving hospital in such merger, consolidation
or acquisition shall be deemed to be one of the designated hospitals.
12. Termination
12.1 In addition to termination pursuant to Section 11,
Employee's employment hereunder may be terminated for "cause". "Cause" for
purposes of this Agreement shall mean the following:
(i) alcoholism or drug addiction materially affecting
Employee's performance, (ii) conviction for a
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felony involving moral turpitude, (iii) failure to comply within a
period of ten business days with a reasonable directive of the chief
executive officer, or the Board of Directors of the Company relating to
Employee's duties or Employee's performance and consistent with
Employee's position, after written notice that such failure will be
deemed to be "cause", to the extent such failure can be cured within
such ten business days and if not so curable, fails to commence curing
during said ten day period and diligently pursue the curing of same
until cured, (iv) gross neglect or gross misconduct of Employee in
carrying out his duties under this Agreement, resulting, in either
case, in material economic harm to the Company, unless Employee
believed in good faith that such act or nonact was in the best
interests of the Company and, (v) misappropriation of corporate assets
or corporate opportunity or other act of dishonesty or breach of
fiduciary obligation to the Company.
12.2 In the event the Company terminates this Agreement and
Employee's employment other than for "cause", and other than for death or
disability, Employee shall be entitled, in addition to whatever other rights and
remedies which may be available to him, to the following, subject to the
applicable provisions of the Company's 1985 and 1994 Employee Stock Option
Plans, the Company's 1992 Management Equity Incentive Plan and other applicable
Plans: (i) the
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right to exercise any stock option in full, whether or not then fully
exercisable, for the remainder of the original term of such option, (ii) the
balance of payments of Base Salary, to be paid at the times they would otherwise
have become payable to Employee pursuant to the terms of this Agreement and
(iii) a cash bonus payable for each remaining year of the term (or fraction of
year if termination occurs during a particular year of the term and a bonus has
not previously been paid to Employee for such year) in an amount equal to the
most recently paid cash bonus paid to Employee. Additionally any restrictions on
shares of stock previously issued to Employee shall be deemed inoperative and of
no further force and effect.
12.3 Employee shall be deemed to have been terminated without
cause if, without Employee's written consent, (i) Employee is not elected
President of the Company during the term, and is not designated chief operating
officer of the Company, (ii) his Base Salary is reduced, (iii) he is relocated
in violation of Section 3.1 or (iv) there has been a material diminution in the
Employee's duties or the assignment to Employee of duties which are materially
inconsistent with his duties or which materially impair the Employee's ability
to function as Chief Operating Officer of the Company.
13. Vacation
13.1 Employee shall be entitled to a vacation of four weeks
duration in the aggregate during each year of the
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Term at times reasonably agreeable to both Employee and the Company, it being
understood that any portion of such vacation not taken in such year shall not be
available to be taken during any other year.
14. Insurance
14.1 In addition to insurance referenced in Section 6.2,
Employee agrees that the Company or any Subsidiary may apply for and secure
and/or own and/or be the beneficiary of insurance on the Employee's life or
disability insurance (in each instance in amounts determined by the Company),
and Employee agrees to cooperate fully in the applying and securing of same,
including, without limitation, the submission to various physical and other
examinations and the answering of questions and furnishing of information as may
be required by various insurance carriers. However, nothing contained herein
shall require the Company to obtain any such life or disability insurance.
15. Miscellaneous
15.1 The Company shall have the right to assign this Agreement
and to delegate all duties and obligations hereunder to any successor,
affiliated or parent company or to any person, firm or corporation which
acquires the Company or substantially all of its assets, or with or into which
the Company may consolidate or merge. This Agreement shall be binding upon and
inure to the benefit of the permitted successors and assigns of the
Company. Employee
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agrees that this Agreement is personal to him and may not be assigned by him.
15.2 This Agreement is being delivered in the State of
Connecticut and shall be construed and enforced in accordance with the laws of
such State applicable to contracts made and fully to be performed therein, and
without any reference to any rules of conflicts of laws.
15.3 Except as may herein otherwise be provided, all notices,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or if mailed,
first class postage prepaid, registered or certified mail, return receipt
requested, or if sent by telecopier or overnight express delivery service, (a)
to Employee at his address set forth on the facing page hereof or at such other
address as Employee may have notified the Company, sent by registered or
certified mail, return receipt requested, or by telecopier or overnight express
delivery service, or (b) if to the Company, at its address set forth on the
facing page hereof, attention: Chairman of the Board, or at such other address
as the Company may have notified Employee in writing sent by registered or
certified mail, return receipt requested or by telecopier or overnight express
delivery service, and with a copy to Xxxxx, Xxxxxxxxxx & Xxxxx, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000 10036 (Attention: Xxxxx X. Xxxxxxxxxx, Esq.). Notice
shall be deemed given (i) upon personal delivery, or (ii) on the second business
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day immediately succeeding the posting of same, prepaid, in the U.S. mail, (iii)
on the date sent by telecopy if the addressee has compatible receiving equipment
and provided the transmittal is made on a business day during the hours of 9:00
A.M. to 6:00 P.M. of the receiving party and if sent on other times, on the
immediately succeeding business day, or (iv) on the first business day
immediately succeeding delivery to the express overnight carrier for the next
business day delivery.
15.4 This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Each party shall deliver
such further instruments and take such further action as may be reasonably
requested by the other in order to carry out the provisions and purposes of this
Agreement. This Agreement represents the entire understanding of the parties
with reference to the transaction set forth herein and neither this Agreement
nor any provision thereof may be modified, discharged or terminated except by an
agreement in writing signed by the party against whom the enforcement of any
waiver, change, discharge or termination is sought. Any waiver by either party
of a breach of any provision of this Agreement must be in writing and no waiver
of a particular breach shall operate as or be construed as a waiver of any
subsequent breach thereof.
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15.5 "Subsidiaries" or "Subsidiary" shall include and mean any
corporation, partnership or other entity 50% or more of the then issued and
outstanding voting stock is owned directly or indirectly by the Company in the
instance of a Corporation, and 50% or more of the interest in capital or in
profits is owned directly or indirectly by the Company in the instance of a
partnership and/or other entity, or any corporation, partnership, venture or
other entity, the business of which is managed by the Company or any of its
Subsidiaries.
IN WITNESS WHEREOF, the parties hereto have executed and have caused
this Agreement to be executed as of the day and year first above written.
CENTURY COMMUNICATIONS CORP.
By: /s/ Xxxxxxx Xxx
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Its Chairman of the Board
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
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