EXHIBIT 10.7
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of November 6, 1998
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between Avalon Cable LLC, a Delaware limited liability company (the "Company"),
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and Xxxxx Xxxxxxxx ("Executive").
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In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company will employ Executive, and Executive
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accepts employment with the Company, upon the terms and conditions set forth in
this Agreement, for the period beginning on the date of this Agreement and
ending as provided in Section 5 (the "Employment Period").
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2. Position and Duties. During the Employment Period, Executive
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will serve as the Vice President of Engineering of the Company and render such
managerial, analytical, administrative, marketing and other executive services
to the Company and its subsidiaries, if any, as are from time to time necessary
in connection with the management and affairs of the Company and its
subsidiaries (together with all reasonably related activities, the "Business"),
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subject to the authority of the President of the Company (the "President") and
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to the provisos set forth in the following sentence. Executive will devote his
best efforts and all of his business time and attention (provided that Executive
shall also be allowed permitted vacation periods (as set forth below) and
reasonable periods of illness or other incapacity) to the business and affairs
of the Company and its subsidiaries, if any. During the Employment Period,
Executive will not directly or indirectly own, manage, control, participate in,
consult with, render services for, or in any other manner engage in the cable
television business other than: (i) on behalf of the Company or any subsidiary
thereof; or (ii) as a passive owner of less than 5% of the outstanding stock of
a corporation of any class which is publicly traded, so long as Executive has no
direct or indirect participation in the business of such corporation. Executive
will report to the President. Executive will perform his duties and
responsibilities to the best of his abilities in a diligent, trustworthy,
businesslike and efficient manner.
3. Base Salary, Bonus and Benefits.
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(a) Base Salary. During the Employment Period, Executive will be paid
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$110,000 per annum as base compensation for services (as in effect from time to
time, the "Base Salary"). The President may review, and in its sole discretion
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may increase, the Base Salary as and when the President deems appropriate. The
Base Salary will be payable in regular installments in accordance with the
general payroll practices of the Company and its subsidiaries. In addition,
during the Employment Period, Executive will be entitled to participate in all
of the employee benefit programs for which executive employees of the Company
and its subsidiaries are generally eligible.
(b) Reimbursement of Expenses. The Company will reimburse Executive
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for all reasonable expenses incurred by him in the course of performing his
duties under this Agreement and which are consistent with the Company's policies
in effect from time to time with respect to travel, entertainment and other
business expenses, subject to the Company's requirements with respect to
reporting and documentation of such expenses.
(c) Bonus. In addition to the Base Salary, the President may in his
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sole discretion award a bonus (the "Bonus") to Executive following the end of
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each fiscal year during the Employment Period as the President deems
appropriate, in an amount up to 20% of the weighted-average Base Salary in
effect during such fiscal year.
4. Vacation. Executive shall earn and be entitled to one and one-
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quarter (1-1/4) days of paid vacation ("Vacation Time") for each full month of
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the Employment Period, in addition to legal holidays; provided, however, that no
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such Vacation Time shall accrue or be earned to the extent that such accrual or
earning would cause Executive's accrued or earned, but unused, Vacation Time to
exceed three (3) weeks at any time. Vacation Time which accrues in accordance
with this Section 4 shall be available to the Executive on each successive one-
month anniversary of the date hereof. Executive shall make best efforts to
schedule vacations so as not to conflict with the conduct of the Company's
business, and Executive shall give to the President adequate advance notice of
his planned absences.
5. Termination.
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(a) The Employment Period will continue until the earlier of: (i) the
fifth anniversary of the date hereof; or (ii Executive's resignation, death or
Disability or other incapacity (as determined by the Company in good faith) or
until the Employment Period is terminated by the Company for any reason or for
no reason (provided that the Company shall not terminate the Employment Period
in bad faith). For the purposes of this Agreement, "Cause" shall mean: (A) the
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commission of a felony or a crime involving moral turpitude or the commission
of any other act or omission involving dishonesty, disloyalty or fraud with
respect to the Company or any of its affiliates; (B) conduct tending to bring
the Company or any of its affiliates into substantial public disgrace or
disrepute; (C) substantial and repeated failure to perform duties as reasonably
directed by the President; (D) gross negligence or willful misconduct with
respect to the Company or any of its affiliates; (E) substantial
underperformance in carrying out Executive's duties under this Agreement; or (F)
any material breach of or misrepresentation by Executive or the Company under
this Agreement. For purposes of this Agreement, "Disability" means the
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inability of Executive to perform his duties hereunder for 120 days during any
12-month period.
(b) In the event of termination of the Employment Period for any
reason or no reason, Executive will not be entitled to receive his Base Salary
or any fringe benefits or Bonus for periods after the termination of the
Employment Period.
6. Resignation as Officer or Director. Upon the termination of the
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Employment Period, Executive will resign each position (if any) that he then
holds as an officer, director or manager of the Company or any of its
subsidiaries (including, without limitation, his membership on the Board).
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7. Confidential Information. The Executive acknowledges that the
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information, observations and data that have been or may be obtained by him
during his employment or other relationship or interaction with the Company or
any Affiliate or predecessor thereof (each of the Company, any of its Affiliates
or any such predecessor being an "Avalon-Related Company" and collectively they
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are the "Avalon-Related Companies") prior to and after the date of this
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Agreement concerning the business or affairs of the Avalon-Related Companies
(collectively, "Confidential Information") are and will be the property of the
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Avalon-Related Companies. Therefore, Executive agrees that he will not disclose
to any unauthorized Person or use for his own account any Confidential
Information without the prior written consent of the Company (by the action of
the Board), unless and to the extent that the aforementioned matters become
generally known to and available for use by the public other than as a result of
Executive's acts or omissions to act. Executive will deliver to the Company at
the termination of the Employment Period, or at any other time any Avalon-
Related Company may request, all memoranda, notes, plans, records, reports,
computer tapes and software and other documents and data (and copies thereof)
containing or relating to Confidential Information or the business of any
Avalon-Related Company which he may then possess or have under his control. For
purposes hereof, the term "Affiliate" shall mean with respect to any individual,
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corporation, partnership, limited liability company, trust, joint venture,
governmental entity or other unincorporated entity, association or group (each a
"Person"), any other Person who directly or indirectly, through one or more
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intermediaries, Controls, is Controlled by, or is under common Control with such
Person; and with respect to any individual also includes any relative of such
individual. The term "Control" means the possession, directly or indirectly of
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the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, and the term "Controlled" and "Controlling" have meanings correlative
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thereto.
8. Non-Compete, Non-Solicitation.
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(a) Non-Compete. Executive acknowledges that during his employment or
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other relationship or interaction with the Avalon-Related Companies he has and
will become familiar with trade secrets and other confidential information
concerning such entities, and with investment opportunities relating to the
Business, and that his services have been and will be of special, unique and
extraordinary value to the foregoing entities. Therefore, Executive agrees that,
during the Employment Period and for six (6) months thereafter (the Employment
Period and such six-month period being the "Noncompete Period"), he will not
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directly or indirectly own, manage, control, participate in, consult with,
render services for, or in any other manner engage in any business, or as an
investor in or lender to any business (in each case including, without
limitation, on his own behalf or on behalf of another entity) which is in the
cable television business in any market in which the Avalon-Related Companies
are operating or are considering operating (including pursuant to any potential
acquisitions), at any given point in time during the Employment Period or as of
the end of the Employment Period if the Employment Period has ended; provided
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that for purposes of this Section 8(a), but not for purposes of Section 8(b),
the Noncompete Period will terminate at the end of the Employment Period if the
Employment Period is terminated by the Company other than for Cause or
Executive's disability. Nothing in this Section 8 will prohibit Executive from
being a passive owner of less than 5% of the outstanding stock of a corporation
engaged in a competing business described above of any class which is publicly
traded, so long as Executive has no direct or indirect participation in the
business of such corporation. By initialing in the space provided
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below, Executive acknowledges that he has read carefully and had the opportunity
to consult with legal counsel regarding the provisions of this Section 8(a).
_______ [INITIAL]
(b) Non-Solicitation. During the Noncompete Period, Executive will
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not directly or indirectly; (i) induce or attempt to induce any employee or
full-time independent contractor of the Company or any subsidiary to leave the
employ or contracting relationship with such entity, or in any way interfere
with the relationship between any such entity and any employee or full-time
independent contractor thereof; (ii) solicit for employment or as an independent
contractor any person who was an employee or full-time independent contractor of
the Company or any subsidiary at any time during the Employment Period; or (iii)
induce or attempt to induce any customer, supplier or other business relation of
the Company or any subsidiary to cease doing business with such entity or in any
way interfere with the relationship between any such customer, supplier or other
business relation and such entity. By initialing in the space provided below,
Executive acknowledges that he has read carefully and had the opportunity to
consult with legal counsel regarding the provisions of this Section 8(b)._______
[INITIAL]
9. Enforcement. The Company and Executive agree that if, at the
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time of enforcement of Section 7 or 8, a court holds that any restriction stated
in any such Section is unreasonable under circumstances then existing, then the
maximum period, scope or geographical area reasonable under such circumstances
will be substituted for the stated period, scope or area. Because Executive's
services are unique and because Executive has access to information of the type
described in Sections 7 and 8, the Company and Executive agree that money
damages would be an inadequate remedy for any breach of Section 7 or 8.
Therefore, in the event of a breach or threatened breach of Section 7 or 8, the
Company or its successors or assigns (or any other affected Person) may, in
addition to other rights and remedies existing in their favor, apply to any
court of competent jurisdiction for specific performance and/or injunctive or
other relief in order to enforce, or prevent any violations of, the provisions
of Section 7 or 8, without posting a bond or other security. The provisions of
Sections 7, 8 and 9 are intended to be for the benefit of the Company, its
subsidiaries, and their respective successors and assigns, each of which may
enforce such provisions and each of which (other than the Company) is an express
third-party beneficiary of such provisions and this Agreement generally.
Sections 7, 8 and 9 will survive and continue in full force in accordance with
their terms notwithstanding any termination of the Employment Period. By
initialing in the space provided below, Executive acknowledges that he has read
carefully and had the opportunity to consult with legal counsel regarding the
provisions of this Section 9. _______ [INITIAL]
10. Representations. Executive represents and warrants to the
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Company and its subsidiaries that Executive is not a party to or bound by any
employment agreement, noncompete agreement or confidentiality agreement with any
other Person.
11. Key-Man Life Insurance. If the Board determines that Avalon
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Holdings and/or one or more of its subsidiaries should purchase a "key-man"
insurance policy on the life of Executive, then Executive agrees to submit to
any requested physical examination in connection with the Company or any
subsidiary's purchase of such a key-man insurance policy, and the Executive
agrees to cooperate fully in connection with the underwriting, purchase and/or
retention of any such key-man insurance policy by the Company or any of its
subsidiaries.
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12. Miscellaneous.
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(a) Notices. All notices, demands or other communications to be given
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or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid), or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the address indicated below:
Notices to Executive:
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Xxxxx Xxxxxxxx
__________
__________
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Notices to the Company:
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Avalon Cable LLC
000 Xxxx 00xx Xxxxxx, Xxxxxxxxx X
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, President
with copies (which shall not constitute notice to the Company) to:
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ABRY Partners, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxx Xxxxxxxx
and
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(b) Amendment and Waiver. No modification, amendment or waiver of any
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provision of this Agreement will be effective unless such modification,
amendment or waiver is approved in writing by the Company, Executive and ABRY,
if ABRY then holds (directly and indirectly) any Equity Securities of the
Company. The failure of any party to enforce any of the provisions of this
Agreement will in no way be construed as a waiver of such provisions and will
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not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
(c) Severability. Without limiting Section 9, whenever possible, each
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provision of this Agreement will be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Agreement
is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect the validity, legality or enforceability of any
other provision of this Agreement in such jurisdiction or affect the validity,
legality or enforceability of any provision in any other jurisdiction, but this
Agreement will be reformed, construed and enforced in that jurisdiction as if
such invalid, illegal or unenforceable provision had never been contained in
this Agreement.
(d) Entire Agreement. Except as otherwise expressly set forth herein,
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this agreement and the other agreements referred to herein embodies the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes and preempts any prior understandings, agreements
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
(e) Successors and Assigns. This Agreement will bind and inure to the
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benefit of and be enforceable by the Company and Executive and their respective
assigns; provided that Executive may not assign his rights under this Agreement
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without the prior written consent of each of the Company and ABRY, if ABRY then
holds (directly or indirectly) any Equity Securities of the Company.
(f) Counterparts. This Agreement may be executed simultaneously in
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two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
(g) Descriptive Headings; Interpretation. The descriptive headings of
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this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement.
(H) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
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CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT WILL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE
OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT PROVISION OR
RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD
CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK TO BE
APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEW
YORK WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF
UNDER THAT JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE
SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
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(i) WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES,
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TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN
ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT
OR ANY ANCILLARY AGREEMENT OR THE VALIDITY, PROTECTION, INTERPRETATION,
COLLECTION OR ENFORCEMENT THEREOF.
(j) No Strict Construction. The parties hereto have participated
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jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Executive
Employment Agreement as of the date first written above.
AVALON CABLE LLC
By:________________________________________
Name:
Title:
___________________________________________
Xxxxx Xxxxxxxx
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