EMPLOYMENT AGREEMENT
THIS AGREEMENT, entered into as of the 1st day of June 1996, by and between
XXXX XXXXXX (the "Employee") and McCLATCHY NEWSPAPERS, INC., a Delaware
corporation (the "Company"),
W I T N E S S E T H:
Whereas, the Company wishes to employ the Employee in the capacity of its
President and Chief Executive Officer; and
Whereas, the Employee is willing to accept such employment upon the terms
and conditions set forth below and is committed to remaining in the Company's
employ upon the terms and conditions set forth below:
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. Term of Employment.
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(a) Basic Rule. The Company agrees to continue the Employee's employment,
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and the Employee agrees to remain in employment with the Company, from the date
hereof until the earliest of:
(i) June 1, 1999, or such later date to which the term of this
Agreement may be extended pursuant to the provisions of Subsection (b) of
this Section 1;
(ii) The date of the Employee's death; or
(iii) The date when the Employee's employment terminates pursuant to
Subsection (d), (e), (f), (g) or (h) below.
(b) Automatic Extension of Term. Subject to the provisions of Subsections
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(c) through (f) of this Section 1, the term of this Agreement shall be extended
automatically for one year effective on June 1, 1997 (so that effective on that
date the term of employment shall be extended from June 1, 1999 to June 1,
2000), and on each succeeding June 1 (so that effective on each such day, the
remaining term of employment shall be for a full three-year period).
(c) Election Not to Extend Term. Employee or the Board of Directors of the
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Company, by written notice delivered to the other, may at any time elect to
terminate the automatic extension provisions of Subsection (b) of this Section
1. Such election shall apply only to extensions that would otherwise become
effective more than 60 days after delivery of such notice and shall not apply to
extensions that theretofore become effective.
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(d) Early Termination or Resignation. The Company may terminate the
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Employee's employment for any reason by giving the Employee not less than 60
days' advance notice in writing (in which event the Employee may become entitled
to the payments and benefits described in Section 5). The Employee may terminate
his employment earlier by giving the Company not less than six months' advance
notice in writing.
(e) Termination for Cause. The Company may terminate the Employee's
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employment at any time for Cause by giving the Employee written notice. For all
purposes under this Agreement, "Cause" shall mean (i) a willful failure by the
Employee to substantially perform his duties hereunder, other than a failure
resulting from the Employee's complete or partial incapacity due to physical or
mental illness or impairment, or (ii) a willful act by the Employee which
constitutes gross misconduct and which is materially injurious to the Company.
No act, or failure to act, by the Employee shall be considered "willful" unless
committed without good faith and without a reasonable belief that the act or
omission was in the Company's best interest. The Company's notice of termination
shall specify the nature of the Cause.
(f) Termination for Disability. The Company may terminate the Employee's
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employment for Disability by giving the Employee not less than 60 days' advance
notice in writing (in which event the Employee shall become entitled to the
payments and benefits described in Section 6 to the extent provided therein).
For all purposes under this Agreement, "Disability" shall mean that the
Employee, at the time notice is given, has been unable to perform his duties
under this Agreement for a period of not less than six consecutive months as the
result of a sickness or an injury, as determined for purposes of the Company's
long-term disability income insurance. The Company's notice of termination shall
specify the nature of the Disability. In the event that the Employee resumes the
performance of his duties hereunder on a full-time basis before the termination
of his employment under this Subsection (d) becomes effective, the notice of
termination shall automatically be deemed to have been revoked.
(g) Termination for Mental Incompetence. The Company may terminate the
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Employee's employment at any time for Mental Incompetence by giving the Employee
written notice. Subsection (d) above and Section 6 shall become applicable
thereafter, to the extent provided in such provisions. For all purposes under
this Agreement, "Mental Incompetence" shall mean that the Employee has been
judicially determined to be of unsound mind.
(h) Resignation for Good Reason. Notwithstanding the provisions of
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Subsection (d) above, the Employee may terminate his employment for Good Reason
by giving the Company not less than 60 days' advance notice in writing (in which
event the Employee shall become entitled to the payments and benefits
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described in Section 5 to the extent provided therein). For all purposes
under this Agreement, "Good Reason" shall mean (i) a demotion, (ii) a material
reduction in responsibility or authority (including, without limitation, loss of
the title or functions of the Chief Executive Officer of the Company or its
successor) or (iii) any situation that would impair the ability of the Employee
to exercise the authority and perform the functions customarily exercised and
performed by the Company's Chief Executive Officer.
(i) Notice. For all purposes under this Section 1, the employment
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relationship shall terminate on the date properly specified in the notice of
termination. Any waiver of notice shall be valid only if it is made in writing
and expressly refers to the applicable notice requirement of this Section 1.
(j) Expiration of Agreement. This Agreement shall expire when all
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obligations of the parties hereunder have been satisfied.
2. Duties and Scope of Employment.
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(a) Position. The Company agrees to employ the Employee in Sacramento,
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California, as its President and Chief Executive Officer. The Employee shall
report to the Company's Board of Directors and shall have the authority and
responsibilities customarily granted to the Chief Executive Officer.
(b) Obligations. During the term of his employment under this Agreement,
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the Employee shall devote his full business efforts and time to the Company and
its affiliates and shall not render services to any other person or entity
without the consent of the Company's Board of Directors. The foregoing, however,
shall not preclude the Employee from (i) serving on the boards of directors of
not-for-profit entities and trade groups, (ii) serving on the boards of
directors of such other corporations as the Company's Board of Directors may
approve from time to time, (iii) engaging in other civic, charitable, non-profit
or religious activities, (iv) devoting a reasonable amount of time to private
investments which do not interfere or conflict with his responsibilities to the
Company and (v) enjoying the usual holiday and vacation periods.
3. Base Compensation.
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During the term of his employment under this Agreement, the Company agrees
to pay the Employee (as compensation for his services) a base salary at an
annual rate of $450,000, or at such higher rate as the parties hereto may
determine by mutual agreement. (The base salary specified in this Section 3,
together with any increases in such salary which the Company may grant from time
to time, is referred to in this Agreement as "Base Compensation.") The
Employee's Base Compensation shall be subject to required withholding taxes.
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4. Employee Benefits and Expenses.
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(a) Benefits. During the term of his employment under this Agreement, the
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Employee shall be eligible to participate in all employee benefit plans, bonus
programs and fringe benefit arrangements maintained by the Company, subject in
each case to (i) the generally applicable terms and conditions of the plan,
program or arrangement in question and (ii) the full discretion and
determinations of the applicable committee or other plan administrator.
(b) Business Expenses. During the term of his employment under this
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Agreement, the Employee shall be authorized to incur necessary and reasonable
travel, entertainment and other business expenses in connection with his duties
hereunder. The Company shall reimburse the Employee for such expenses upon
presentation of an itemized account and appropriate supporting documentation,
all in accordance with the Company's generally applicable policies.
5. Termination Without Cause or Resignation for Good Reason.
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(a) Severance Payment. In the event that, during the term of this
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Agreement, the Company terminates the Employee's employment for any reason other
than Cause, Disability or Mental Incompetence or in the event that, during such
term, the Employee terminates his employment for Good Reason, the Employee shall
be entitled to receive a severance payment from the Company (the "Severance
Payment"). The Severance Payment shall be made in a lump sum as soon as
reasonably practicable, but in no event less than 15 or more than 60 days,
following the effective date of the employment termination. However, the
Employee may request, subject to the express approval of the Company's Board of
Directors, that the Severance Payment be made in five equal installments
(without interest) at 12-month intervals, with the first installment to be paid
as soon as reasonably practicable, but in no event less than 15 or more than 60
days, following the effective date of the employment termination. Such a request
shall be made in writing not later than 14 days following the effective date of
the employment termination and, if approved, shall be irrevocable. Any payments
under this Section 5 shall be subject to required withholding taxes. The amount
of the Severance Payment shall be equal to the following:
(i) 100% of the Employee's annual rate of Base Compensation, as in
effect on the date of the employment termination, if such employment
termination occurs prior to June 1, 1997; or
(ii) 200% of the Employee's annual rate of Base Compensation, as in
effect on the date of employment termination, if such employment
termination occurs on or after June 1, 1997 but prior to June 1, 1998; or
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(iii) 300% of the Employee's annual rate of Base Compensation, as in
effect on the date of employment termination, if such employment
termination occurs on or after June 1, 1998.
The Severance Payment shall be in lieu of any further payments to the Employee
under this Agreement (except as provided in Subsection (b) below).
(b) Group Insurance Coverage. In the event that the Employee becomes
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entitled to a Severance Payment under Subsection (a) above, he shall also be
entitled to the group insurance coverage described in this Subsection (b). Such
coverage shall continue for the period commencing on the effective date of the
employment termination and ending on the earliest of:
(i) The third anniversary of the effective date of employment
termination;
(ii) With respect to a particular type of group insurance coverage,
the date when the Employee, as a result of his full- or part-time
employment or selfemployment, becomes eligible to enroll in a group
insurance program providing benefits to the Employee and his dependents
which, in the aggregate, are not less valuable than the corresponding
program maintained by the Company; or
(iii) The date of the Employee's death.
Such period is referred to in this Section 5 as the "Continuation Period."
During the Continuation Period, the Employee (and, where applicable, his
dependents) shall be eligible to continue participation in any group insurance
plans maintained by the Company, including (without limitation) health care
coverage, life insurance and long-term disability income insurance. Where
applicable, the Employee's salary for purposes of such plans shall be deemed to
be equal to the Base Compensation he received immediately prior to the
employment termination. To the extent that the Company finds it impractical to
cover the Employee under its group insurance policies during the Continuation
Period, the Company shall provide the Employee with the same level of coverage
under individual policies. The allocation of the cost of insurance coverage
under this Subsection (b) between the Employee and the Company shall be the same
as for active employees who occupy a position similar to the position occupied
by the Employee at the time of the employment termination.
6. Termination for Disability.
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(a) Disability Benefit. In the event that, during the term of this
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Agreement, the Company terminates the Employee's employment for Disability, the
Employee shall be entitled to the
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supplemental disability benefit described in this Section 6, in addition to
all other benefits to which Employee is entitled under the Company's long-term
disability income insurance program. Such supplemental disability benefit shall
be payable in monthly installments during the period commencing on the effective
date of the employment termination and ending on the earliest of:
(i) The third anniversary of the effective date of employment
termination;
(ii) The date as of which the Employee's entitlement to benefit
payments under the Company's group long-term disability income insurance
program ceases; or
(iii) The date of the Employee's death.
The amount of the annual supplemental disability benefit shall be equal to 60%
of the Employee's annual rate of Base Compensation, as in effect on the date of
the employment termination, reduced by all benefits to which the Employee is
entitled under the Company's group long-term disability income insurance program
or under any federal or state disability insurance program, including (without
limitation) Social Security and California unemployment insurance. Such benefit
shall be subject to required withholding taxes.
(b) Group Insurance Coverage. In the event that the Employee becomes
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entitled to a disability benefit under Subsection (a) above, he shall also be
entitled to the group insurance coverage described in this Subsection (b). Such
coverage shall continue for the period commencing on the effective date of the
employment termination and ending when such disability benefit ceases to be
payable. Such period is referred to in this Section 6 as the "Continuation
Period." During the Continuation Period, the Employee (and, where applicable,
his dependents) shall be eligible to continue participation in any group
insurance plans maintained by the Company, including (without limitation) health
care coverage, life insurance and long-term disability income insurance. Where
applicable, the Employee's salary for purposes of such plans shall be deemed to
be equal to the Base Compensation he received immediately prior to the
employment termination. To the extent that the Company finds it impractical to
cover the Employee under its group insurance policies during the Continuation
Period, the Company shall provide the Employee with the same level of coverage
under individual policies. The allocation of the cost of insurance coverage
under this Subsection (b) between the Employee and the Company shall be the same
as for active employees who occupy a position similar to the position occupied
by the Employee at the time of the employment termination.
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7. Miscellaneous Provisions.
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(a) Delivery of Notice. Notices and all other communications contemplated
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by this Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered or when mailed by certified mail, return receipt
requested and postage prepaid. In the case of the Employee, mailed notices shall
be addressed to him at the home address which he most recently communicated to
the Company in writing. In the case of the Company, mailed notices shall be
addressed to its corporate headquarters, and all notices shall be directed to
the attention of its Secretary.
(b) Waiver. No provision of this Agreement shall be modified, waived or
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discharged unless the modification, waiver or discharge is agreed to in writing
and signed by the Employee and by the Company. No waiver by either party of any
breach of, or of compliance with, any condition or provision of this Agreement
by the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(c) Assignment and Successors. Neither party shall assign any right or
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delegate any obligation hereunder without the other party's written consent, and
any purported assignment or delegation by a party hereto without the other
party's written consent shall be void. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
(d) Whole Agreement. No agreements, representations or understandings
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(whether oral or written and whether express or implied) which are not expressly
set forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof. Effective as of the date hereof, this
Agreement supersedes any prior employment agreement between the Employee and the
Company.
(e) Choice of Law. The validity, interpretation, construction and
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performance of this Agreement shall be governed by the laws of the State of
California.
(f) Severability. The invalidity or unenforceability of any provision or
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provisions of this Agreement shall not affect the validity or enforceability of
any other provision hereof, which shall remain in full force and effect.
(g) Arbitration. Any dispute or claim in law or equity, whether based on
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contract or tort or otherwise, relating to or arising out of the employment of
the Employee by the Company, other than a claim based on a statute providing an
exclusive means of enforcement, shall be settled exclusively by final
arbitration in accordance with the labor arbitration rules of the American
Arbitration Association in effect at the time the
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arbitration is initiated. Any claim or dispute subject to arbitration shall
be deemed waived, and forever barred, if not presented for arbitration within
six months of the date when the claim or dispute arose.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
above written.
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Employee
McCLATCHY NEWSPAPERS, INC.
By
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