EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the 31st
day of January, 2004, between Xxx Radio and Television, Inc., an Ohio
corporation (the "Corporation"), and Xxxxxxxx Xxxxxxx (the "Employee").
Recitals
A. The Corporation and Employee entered into Employment Agreements
dated July 17, 1984, December 1, 1989, January 1, 1993 January 1, 1994,
September 1, 1995, October 14, 1998, and April 17, 2001.
B. The Corporation and Employee now desire to enter into a new
Employment Agreement to reflect changes in the Employee's position with the
Corporation.
C. Employee desires to accept such employment on the basis of the
mutual benefits and covenants contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
ARTICLE I - DUTIES OF EMPLOYEE
1.1 Duties of Employee. Employee shall be employed as a consultant for the
period set forth in Article II below. Employee shall be subject to the
supervision of the Board of Directors of the Corporation, and shall perform
those duties as directed by the Board of Directors of the Corporation. Employee
shall be available to consult with the Corporation on matters relating to the
marketing, distribution and sale of retail television, electronic and audio
products and to perform such other duties as may from time to time be designated
by the Board of Directors of the Corporation. Employee agrees to perform the
duties assigned to him faithfully and to the best of his ability and to devote
sufficient time and effort to the performance of his duties.
1.2 Engaging in Other Employment. Employee shall devote a substantial
portion of his business time, energies, attention and abilities to the business
of the Corporation; provided, however, that Employee shall not be prohibited
from: (i) making investments in other businesses; and (ii) actively
participating in the operation of any business within which he has invested.
ARTICLE II - TERM OF EMPLOYMENT
2.1 Term. The Corporation shall employ Employee commencing as of the 1st
day of February, 2004, and continuing for a one (1) year period through January
31, 2005 (the "Employment Period") and any renewal period provided for in
Section 2.2 below unless earlier terminated by Employee's: (i) resignation; (ii)
death; (iii) total disability; or (iv) termination of employment, as provided in
Article VI. "Total disability" shall mean such disability as shall render
Employee incapable of performing substantially all of his duties for the
Corporation as determined by any two qualified physicians chosen by the
Corporation.
2.2 Renewal Term. The terms and conditions of this Agreement shall
automatically renew, without any further action by either party required, upon
the expiration of the Employment Period and any period of renewal for subsequent
one (1) year periods unless (i) notice of termination is provided to the other
party at least ninety (90) days prior to the expiration of the Employment Period
or any period of renewal or (ii) this Agreement is otherwise terminated pursuant
to Article VI.
ARTICLE III - COMPENSATION AND EXPENSES
3.1 Compensation. Employee shall receive as compensation for services
rendered under this Agreement a base salary of Seventy-seven Thousand Two
Hundred Fifty Dollars ($77,250.00) per year, payable in equal monthly
installments of Six Thousand Four Hundred Thirty-seven and 50/100 Dollars
($6,437.50) per month on the last working day of each month (or such more
frequent dates as the Corporation may choose), and prorated for any partial
monthly period.
3.2 Expenses. Employee is authorized to incur reasonable expenses in
connection with the performance of his duties for the Corporation, including
expenses for entertainment of customers, travel, and similar business purposes.
The Corporation will reimburse Employee for all such expenses upon the
presentation of an itemized account of such expenditures and approval of the
expenditures by a designated officer. In incurring reasonable business expenses,
Employee shall conform to the policies of the Corporation as adopted by the
Board of Directors from time to time.
ARTICLE IV - EMPLOYEE BENEFITS AND BONUSES
4.1 Employee Benefit Plans. Employee shall be entitled to participate in
any qualified pension plan, qualified profit-sharing plan, medical and dental
reimbursement plan, group term life insurance plan, and any other employee
benefit plan which may be established by the Corporation, such participation to
be in accordance with the terms of any such plan.
4.2 Bonus. In addition to Employee's salary as provided in Section 3.1,
Employee may be paid a cash bonus as determined in the sole discretion of the
Board of Directors of the Corporation, any such bonus to be commensurate with
the effort and achievement of Employee on behalf of the Corporation.
4.3 Vacation. Employee shall be entitled to eight (8) weeks of vacation
during each 12-month period of the Employment Period or any period of renewal at
full pay; provided, however, that
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no portion of a vacation not taken in any 12-month period may be taken in any
other 12-month period. The time for such vacation shall be selected by Employee.
Employee shall not be entitled to vacation pay in lieu of vacation.
ARTICLE V - NONDISCLOSURE AND NONCOMPETITION
5.1 Confidential Information. Employee agrees to keep secret and
confidential the Confidential Information (as defined below) and shall not use
or disclose such information, either during or after his employment with the
Corporation, for any purpose not authorized by the Corporation. Upon termination
of his employment with the Corporation, Employee shall leave with the
Corporation all records, including all copies thereof, containing any
Confidential Information, including, but not limited to, such documents as
memoranda, notes, records, reports, customer lists, manuals, drawings,
blueprints and maps. "Confidential Information" means information about the
Corporation and any of its subsidiaries which is disclosed to Employee or known
by him as a consequence of or through his work with or on behalf of the
Corporation (including information conceived, originated, discovered, or
developed by him) not generally known about the Corporation, including, but not
limited to, matters of a technical nature, such as "know-how," innovations,
research projects, methods, and matters of a business nature, such as
information about costs, profits, markets, sales, lists of customers, suppliers,
business processes, computer programs, accounting methods, information systems,
business or marketing, financial plans and reports and any other information of
a similar nature.
5.2 Restrictions on Competition. During the term of this Agreement and for
a period of two years after termination of Employee's employment with the
Corporation, for any reason, Employee shall not directly or indirectly, either
as an employee, employer, consultant, agent, principal, partner, stockholder,
corporate officer, director, or in any other individual or representative
capacity, engage or participate in any business that is in competition in any
manner whatsoever with the business of the Corporation within one hundred (100)
miles of any store operated by the Corporation or its affiliates at the time of
Employee's termination nor shall Employee be the owner or operator of a retail
business similar to that of the Corporation within one hundred (100) miles of
any store operated by the Corporation or its affiliates at the time of
Employee's termination.
5.3 Saving. In the event any provision of this Article V shall be held
invalid, illegal, or unenforceable, the remaining provisions shall in no way be
affected thereby, and shall continue in full force and effect. If, moreover, any
one or more of the provisions contained in this Article V shall for any reason
be held to be excessively broad as to time, duration, geographical scope,
activity or subject, it shall be construed, by limiting and reducing it, so as
to be enforceable to the extent compatible with the applicable law as it shall
then appear.
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ARTICLE VI - TERMINATION
6.1 Termination of Employment with Cause. The Corporation may at any time
terminate Employee's employment for cause. Such termination of employment for
cause shall not prejudice any other remedy to which the Corporation may be
entitled either at law, in equity, or under this Agreement. "Termination of
employment for cause" shall mean termination upon: (i) Employee's repeated
failure or refusal to perform his duties hereunder faithfully, diligently,
competently and to the best of his ability for reasons other than serious
disability or other incapacity; (ii) Employee's violation of any material
provision of this Agreement; or (iii) Employee's clear and intentional violation
of a state or federal law of which he is aware or should have been aware: (a)
involves the commission of a felonious crime against the Corporation which has a
materially adverse effect upon the Corporation; or (b) involves a felony other
than against the Corporation having a materially adverse effect upon the
Corporation, as determined in either case in the reasonable judgment of the
Board of Directors.
6.2 Termination by Either Party. This Agreement may be terminated by either
party with or without cause upon ninety (90) days notice.
6.3 Effect of Termination on Compensation. In the event this Agreement is
terminated prior to the completion of the Employment Period or any period of
renewal, Employee shall be entitled to the compensation earned by him prior to
the date of termination as provided for in this Agreement computed pro rata up
to and including that date. Employee shall be entitled to no further
compensation as of the date of termination.
6.4 Effect of Termination on Bonus Plans. In the event of the termination
of this Agreement prior to the completion of the Employment Period or any period
of renewal, Employee shall automatically and completely forfeit any rights which
he may have under any bonus plan established by the Corporation.
ARTICLE VII - WAIVER OF BREACH
7.1 Effect of Waiver. Waiver by the Corporation of any condition, or of the
breach of Employee of any term or covenant contained in this Agreement, whether
by conduct or otherwise, in any one or more instances shall not be deemed to be
or construed as a further or continuing waiver of any such condition or to be a
waiver either of any other condition or of the breach of any other term or
covenant of this Agreement. The failure of the Corporation at any time or times
to require performance of any provision hereof shall in no manner affect its
rights at a later time to require the same.
ARTICLE VIII - MISCELLANEOUS
8.1 Notices. All notices and other communications by any party hereto shall
be made in writing to the other party and shall be deemed to have been duly
given when mailed by United States certified mail, with postage prepaid,
addressed as the parties hereto may designate from time to time in writing.
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8.2 Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of Employee by the Corporation, and contains all of the
covenants and agreements between the parties with respect to such employment in
any manner whatsoever.
8.3 Assignability. Neither this Agreement, nor any duties or obligations
hereunder shall be assignable by Employee without the prior written consent of
the Board of Directors of the Corporation.
8.4 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
8.5 Captions. The captions in this Agreement are inserted for convenience
only and shall not be considered part of or affect the construction or
interpretation of any provision of this Agreement.
8.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
XXX RADIO AND TELEVISION, INC.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx, Secretary
EMPLOYEE:
/s/ XXXXXXXX XXXXXXX
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Xxxxxxxx Xxxxxxx
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