EMPLOYMENT AGREEMENT
AGREEMENT made as of this 6th 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 XXXXXXXX X. BAIL, an
individual, residing at 000 Xxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000
("Employee").
W I T N E S S E T H:
WHEREAS:
A. The Employee desires to be employed by the Company in the
capacity of corporate counsel.
B. The Company desires 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 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 internal corporate counsel of the Company. In such capacity
Employee shall supervise and be responsible for the internal corporate legal
affairs of the Company, all subject to the direction and control of the chief
operating officer, the chief executive officer and/or the Board of Directors of
the Company. At the direction of the chief operating officer, the chief
executive officer and/or the Board of Directors of the Company, Employee shall
also serve in such other 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 operating officer or
the chief executive officer of the Company may determine. Without limitation of
the foregoing, Employee agrees to act as internal corporate legal counsel 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 an officer of the Company and of all applicable
Subsidiaries and, if duly elected, agrees further to serve and act as a director
of the Company and all applicable Subsidiaries. Employee also agrees to adhere
to all fiduciary duties and responsibilities inherent in (i) his office(s), (ii)
as an officer of any of
the Subsidiaries to which he may be elected and (iii) 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, New York 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.
4. Term
4.1 The term of this Agreement (the "Term") shall be the period
commencing January 6, 1997 and expiring on December 31, 1999. The period from
January 6, 1997 to December 31, 1997 shall be considered period of one year for
the purposes of determining a "Preceding Year" and an "Applicable Year" under
Section 5.1.
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 $200,000 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 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, from awarding 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 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. While the Company is not providing Employee
with an automobile for his use in the performance of his duties, nothing herein
shall prohibit the chief operating officer, or the chief executive officer, or
the Board of Directors, in his or its respective sole discretion, from hereafter
providing Employee with the use of an automobile for such purpose.
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 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 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 expiration or 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, 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 that both 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 expiration
or the termination, for any reason, of this Agreement or Employee's employment.
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 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 addition materially affecting Employee's
performance, (ii) conviction for a felony involving moral turpitude,
(iii) failure to comply within a period of ten business days with a
reasonable directive of the chief executive or chief operating 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 1994 Employee Stock Option Plans, the
Company's 1992 Management Equity Incentive Plan and other applicable Plans: (i)
the 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) his Base Salary is reduced,
(ii) he is relocated in violation of Section 3.1 or (iii) 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 internal corporate legal counsel 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 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 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 first page hereof or at such other address as Employee may have notified
the Company sent by registered or certified mail, return receipt requested, or
if sent by telecopier or overnight express delivery service, or (b) if to the
Company, at its address set forth on the first 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, Esqs.). Notice shall be deemed given (i) upon personal
delivery, or (ii) on the second business 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.
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 X. XXXXXXXXX
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Its President
/s/ XXXXXXXX X. BAIL
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Xxxxxxxx X. Bail
