AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
EXECUTION VERSION
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), dated as of July 26, 2011 (the “Effective Date”), by and between Xxxxxx Xxxxxxx Living Omnimedia, Inc., a Delaware corporation (the “Company”), and Xxxxxxx X. Xxxxxxxxx (the “Executive”).
WHEREAS, the Company desires that the Executive continue to serve as its Executive Chairman following the Effective Date, and the Executive is willing to be so employed, in each case on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Employment Term. Subject to the provisions of Section 7 of this Agreement, the Company hereby agrees to continue to employ the Executive hereunder, and the Executive hereby agrees to continue to be employed by the Company hereunder, in each case subject to the terms and conditions of this Agreement, for the period commencing on the Effective Date and ending on the Transition Date (as defined below) (such period, the “Employment Term”). The Transition Date shall mean the earlier of December 31, 2011 or the date on which the President and Chief Operating Officer of the Company reports directly to the Company’s Board of Directors (the “Board”). The Company will provide the Executive with two weeks advance notice of the Transition Date if it is prior to December 31, 2011.
2. Duties.
(a) During the Employment Term, the Executive shall serve as the Executive Chairman of the Company. The Executive shall be the senior-most executive officer of the Company and shall have the duties and responsibilities customarily exercised by an individual serving in that position in a corporation of the size and nature of the Company; provided, however, that it is acknowledged and agreed that the employees of the Company (other than Xxxxxx Xxxxxxx) report to the President and Chief Operating Officer. In his capacity as Executive Chairman, the Executive shall use his best energies and abilities in the performance of his duties, services and responsibilities for the Company. In performing such duties, services and responsibilities, the Executive will report directly to the Board.
(b) During the Employment Term, the Executive shall devote substantially all of his business time and attention to the businesses of the Company and its subsidiaries and affiliates and shall not engage in any activity inconsistent with the foregoing, whether or not such activity shall be engaged in for pecuniary profit, unless approved by the Board; provided, however, that, to the extent such activities do not violate, or substantially interfere with his performance of his duties, services and responsibilities under, this Agreement, the Executive shall be permitted to manage his personal, financial and legal affairs and serve on civic or charitable boards and committees of such boards. The parties understand and agree that the
Executive may continue to serve on corporate, civic and charitable boards on which he sits as of the date of this Agreement (including as a director of Six Flags, Inc., a trustee of Asarco/Than Trust, a member of Counsel Financial II LLC, the Chairman of CAK Entertainment, Inc., a stockholder and director of SFNY, Inc, and a trustee of the United States Gypsum Asbestos Personal Injury Settlement Trust) (such activities, together, and as may be amended pursuant to this paragraph, the “Non-Company Activities”). Executive shall not permit the Non-Company Activities to interfere with the Executive’s performance on behalf of the Company under this Agreement, and Executive agrees that, subject to the first sentence of this paragraph, he shall only accept new or additional responsibilities related to businesses other than the Company’s (such new or additional responsibilities constituting Non-Company Activities) to the extent Executive gives up a Non-Company Activity requiring a commensurate amount of time and effort. During the Employment Term, the Executive’s principal location of employment shall be at the Company’s executive offices in New York City, New York, except for customary business travel on behalf of the Company and its subsidiaries and affiliates.
(c) Upon any termination of the Executive’s employment with the Company, the Executive shall be deemed to have resigned from all other positions he then holds as an employee or director or other independent contractor of the Company or any of its subsidiaries or affiliates, unless otherwise agreed by the Company and the Executive. Any such termination shall constitute a “separation of service” with the Company for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”).
3. Base Salary; Bonus.
(a) During the Employment Term, in consideration of the performance by the Executive of the Executive’s obligations during the Employment Term (including any service in any position with any subsidiary or affiliate of the Company), the Company shall pay the Executive a base salary (the “Base Salary”) at an annual rate of $990,000.
(b) During the Employment Term, in addition to the payments of the Base Salary set forth above, the Executive shall be eligible to receive, in respect of each calendar year during which the Employment Term is in effect (which, in the case of the 2011 calendar year, will include the period from January 1, 2011 through the Transition Date), a performance-based cash bonus of 100% of Base Salary at target and 150% of Base Salary at maximum based on achievement of goals established with respect to each calendar year by the Compensation Committee of the Board after reasonable consultation with the Executive. Such bonus, if any, shall be paid concurrently with other bonuses paid to senior executives of the Company, provided you are continuously and actively employed through such date of payment (except as otherwise provided in Section 9(a) below). Such bonus shall be paid in a lump sum no earlier than January 1st and no later than March 15th of the calendar year following the calendar year to which such bonus relates.
4. Benefits.
(a) During the Employment Term, the Executive shall be entitled to participate in the employee benefit plans, policies, programs, perquisites and arrangements, as
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may be amended from time to time, that are provided generally to similarly situated employees of the Company (excluding for this purpose Xxxxxx Xxxxxxx) to the extent the Executive meets the eligibility requirements for any such plan, policy, program, perquisite or arrangement.
(b) The Company shall reimburse the Executive for all reasonable business expenses incurred by the Executive in carrying out the Executive’s duties, services and responsibilities under this Agreement during the Employment Term, including, without limitation, first class transportation or travel on a private plane of the Company to the extent that such private plane is available. The Executive shall comply with generally applicable policies, practices and procedures of the Company with respect to reimbursement for, and submission of expense reports, receipts or similar documentation of, such expenses
(c) The Company will contribute $60,000 per year to the Executive for driver expenses in installments of $5,000, payable monthly in arrears on the first check run of the following month.
(d) The Company shall, to the extent feasible and available, make an office available to one or more individuals working with the Executive on Non-Company Activities, provided that Employee shall reimburse the Company for the use of such space at the applicable rental rate.
(e) The Company shall reimburse Executive for the reasonable attorneys’ fees incurred by him in connection with the preparation of this Agreement (and related agreements) up to a maximum of $35,000.
(f) For purposes of complying with Section 409A, any reimbursement of benefits provided under this Section 4 shall be subject to the following: (i) provision of such reimbursement or benefits provided during one calendar year shall not affect the amount of reimbursements or benefits provided during a subsequent calendar year; (ii) such reimbursements or benefit may not be exchanged or substituted for other forms of compensation to the Executive; and (iii) payments must be made no later than the last day of the calendar year immediately following the calendar year in which the expense is incurred.
5. Vacations. During each calendar year of the Employment Term (pro rata for partial calendar years), the Executive shall be entitled to four weeks of paid vacation to be taken in accordance with the applicable policy of the Company.
6. Equity Compensation. Upon a Change of Control of the Company during the Employment Term, all unvested equity awards held by the Executive that were granted prior to the Effective Date (excluding, however, the Performance Shares if such Performance Shares have not vested by their own terms) shall become fully vested and (in the case of stock options) exercisable.
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7. Termination of the Employment Term.
(a) The Executive’s employment with the Company and the Employment Term shall terminate upon the earliest to occur of:
(i) the death of the Executive;
(ii) the termination of the Executive’s employment by the Company by reason of the Executive’s Disability;
(iii) the termination of the Executive’s employment by the Company for Cause or without Cause;
(iv) the termination of the Executive’s employment by the Executive for Good Reason or without Good Reason; and
(v) the expiration of the Employment Term.
(b) For purposes of this Agreement, the following terms shall have the following meanings:
(i) “Cause” shall mean that the Board has made a good faith determination, after providing the Executive with reasonably detailed written notice and a reasonable opportunity to be heard on the issues at a Board meeting, that any of the following has occurred:
(1) the willful and continued failure by the Executive to substantially perform his material duties to the Company (other than due to mental or physical disability) after written notice specifying such failure and the manner in which the Executive may rectify such failure in the future;
(2) the Executive has engaged in willful, intentional misconduct that has resulted in material damage to the Company’s business or reputation;
(3) the Executive has been convicted of a felony; or
(4) the Executive has engaged in fraud against the Company or misappropriated Company property (other than incidental property).
For purposes of this Agreement, no act or failure by the Executive shall be considered “willful” if such act is done by the Executive in the good faith belief that such act is or was in the best interests of the Company or one or more of its businesses. Nothing in this Section 7(b)(i) shall be construed to prevent the Executive from contesting the Board’s determination that Cause exists.
(ii) “Change in Control” of the Company shall mean:
(1) any “person” (as such term is used in Sections 3(a)(9) and 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or “group” (as such term is used in Section 14(d)(2) of the Exchange Act) is or becomes a “beneficial owner” (as such term is used in Rule 13d-3 promulgated under the Exchange Act) of 50% or more of the Voting Stock of the Company; provided that this clause (1) shall not apply with respect to a stockholder of the Company who beneficially owns more than 50% of the Voting Stock of the Company on the Effective Date;
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(2) all or substantially all of the assets or business of the Company are disposed of pursuant to a merger, consolidation or other transaction unless, immediately after such transaction, the stockholders of the Company immediately prior to the transaction own, directly or indirectly, in substantially the same proportion as they owned the Voting Stock of the Company prior to such transaction more than 50% of the Voting Stock of the company surviving such transaction or succeeding to all or substantially all of the assets or business of the Company or the ultimate parent company of such surviving or successor company if such surviving or successor company is a subsidiary of another entity (there being excluded from the number of shares held by such stockholders, but not from the Voting Stock of the combined company, any shares received by affiliates of such other company in exchange for stock of such other company);
(3) the Company adopts any plan of liquidation providing for the distribution of all or substantially all of its assets if such plan of liquidation will result in the winding-up of the business of the Company;
(4) the consummation of any merger, consolidation or other similar corporate transaction unless, immediately after such transaction, the stockholders of the Company immediately prior to the transaction own, directly or indirectly, in substantially the same proportion as they owned the Voting Stock of the Company prior to such transaction more than 50% of the Voting Stock of the company surviving such transaction or its ultimate parent company if such surviving company is a subsidiary of another entity (there being excluded from the number of shares held by such stockholders, but not from the Voting Stock of the combined company, any shares received by affiliates of such other company in exchange for stock of such other company); or
(5) the failure of the Company to have any securities required to be registered under Section 12 of the Exchange Act.
For purposes of this definition, “the Company” shall include any entity that succeeds to all or substantially all of the business of the Company; “Voting Stock” shall mean securities of any class or classes having general voting power under ordinary circumstances, in the absence of contingencies, to elect the directors of a corporation; and references to ownership of “more than 50% of the Voting Stock” shall mean the ownership of shares of Voting Stock that represent the right to exercise more than 50% of the votes entitled to be cast in the election of directors of a corporation.
(iii) “Disability” of the Executive shall have occurred if, as a result of the Executive’s incapacity due to physical or mental illness as determined by a physician selected by the Executive, and reasonably acceptable to the Company, the Executive shall have been substantially unable to perform his duties hereunder for six consecutive months, or for an aggregate of 180 days during any period of twelve consecutive months.
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(iv) “Good Reason” shall mean the occurrence, without the Executive’s express prior written consent, of any one or more of the following:
(1) a material breach of a payment obligation under the Agreement by the Company after the Effective Date that continues after reasonable notice and opportunity to cure;
(2) the Company’s requiring the Executive to be based at a location in excess of 35 miles from the location of the Executive’s principal job location or office specified in Section 2(b), except for required travel on the Company’s business to an extent substantially consistent with the Executive’s position; or
(3) a reduction by the Company of the Executive’s base salary or target annual bonus percentage as in effect on the Effective Date.
The Executive’s right to terminate employment in a termination for Good Reason shall not be affected by the Executive’s incapacity due to physical or mental illness. Subject to the requirements set forth above, the Executive’s continued employment shall not constitute a consent to, or a waiver of rights with respect to, any circumstance constituting Good Reason hereunder.
8. Termination Procedures.
(a) Notice of Termination. Any termination of the Executive’s employment by the Company or by the Executive during the Employment Term (other than pursuant to Sections 7(a)(i) and 7(a)(v)) shall be communicated by written Notice of Termination to the other party. For purposes of this Agreement, a “Notice of Termination” shall mean a notice indicating the specific termination provision in this Agreement relied upon and setting forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under that provision.
(b) Date of Termination. For purposes of this Agreement, “Date of Termination” shall mean (i) if the Executive’s employment is terminated by his death, the date of his death, (ii) if the Executive’s employment is terminated pursuant to Section 7(a)(ii), 30 days after the date of receipt of the Notice of Termination (provided that the Executive does not return to the substantial performance of his duties on a full-time basis during such 30-day period), (iii) if the Executive’s employment is terminated pursuant to Section 7(a)(v), the date of expiration of the Employment Term, and (iv) if the Executive’s employment is terminated for any other reason, the date on which a Notice of Termination is given or any later date (within 30 days after the giving of such notice) set forth in such Notice of Termination.
9. Termination Payments.
(a) Upon any termination of the Executive’s employment, he shall be entitled to payment of any earned but unpaid portion of the Base Salary, bonus, benefits and unreimbursed business expenses, in each case with respect to the period ending on the Date of Termination. In addition, upon termination of Executive’s employment without Cause or a
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termination by Executive with Good Reason or a termination on account of the expiration of the Employment Term, Executive will be entitled to a pro-rated bonus for the year of termination (calculated at the end of the fiscal year and then pro rated through the date of termination) provided that applicable performance targets have been met and bonuses are paid generally to similarly situated executives at the Company. Such payments shall be made in accordance with the provisions of Section 3 and Section 4 of this Agreement.
(b) In addition to the payments and benefits provided in Section 9(a), if the Executive’s employment is terminated (x) by the Company without Cause, (y) by the Executive for Good Reason or (z) on account of expiration of the Employment Term, (i) outstanding equity awards (excluding, however, the Performance Shares if such Performance Shares have not vested by their own terms) held by the Executive shall vest and/or become exercisable, (ii) the period for exercising any vested stock options held by the Executive shall be extended to the later of one year from the Termination Date or one year from the date of termination of the Executive’s service as a director of the Company (but in no event beyond the remaining term of the option), (iii) the Company shall pay the Executive the Severance Payment within the 60 day time period specified below and (iv) the Company shall provide the Executive with continued medical coverage at active-employee rates for two years or, if earlier, until the Executive receives subsequent employer-provided coverage (whether or not the Executive is eligible for COBRA continuation coverage under the Company’s health plan). For purposes of this Section 9(b), the “Severance Payment” shall be a lump-sum cash payment equal to $1,466,923. The Severance Payment shall be paid no later than 60 days following the Date of Termination; provided the Executive has executed the release referred to below and any waiting period with respect to such release has elapsed. In addition, (i) provision of continued medical coverage to the Executive pursuant to this Section 9(b) during any one calendar year shall not affect the amount of such coverage provided during a subsequent calendar year; and (ii) provision of such continued medical coverage may not be exchanged or substituted for other forms of compensation to the Executive.
Payment of the Severance Pay shall be conditioned upon the Executive’s execution of a general release in the form attached hereto as Exhibit A.
10. Confidential Information; Noncompetition; Nonsolicitation; Nondisparagement.
(a) Confidential Information. Except as may be required or appropriate in connection with his carrying out his duties under this Agreement, the Executive shall not, without the prior written consent of the Company or as may otherwise be required by law or any legal process, or as is necessary in connection with any adversarial proceeding against the Company (in which case the Executive shall cooperate with the Company in obtaining a protective order at the Company’s expense against disclosure by a court of competent jurisdiction), communicate, to anyone other than the Company and those designated by the Company or on behalf of the Company in the furtherance of its business or to perform his duties hereunder, any trade secrets, confidential information, knowledge or data relating to the Company, its affiliates or any businesses or investments of the Company or its affiliates, obtained by the Executive during the Executive’s services to the Company that is not generally available public knowledge (other than by acts by the Executive in violation of this Agreement).
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(b) Noncompetition. During the Employment Term and until the eighteen (18) month anniversary of the Executive’s Date of Termination, the Executive shall not engage in or become associated with any Competitive Activity. For purposes of this Section 10(b), a “Competitive Activity” shall mean any business or other endeavor that engages in any country in which the Company has significant business operations to a significant degree in a business that directly competes with all or any substantial part of any of the Company’s businesses of (i) producing radio, television and other video programs, (ii) designing, developing, licensing, promoting and selling merchandise through catalogs, direct marketing, Internet commerce and retail stores of the product categories in which the Company so participates using the name, likeness, image, or voice of any Company employee (without limitation, Company employees for the purposes of this Section 10(b) shall be deemed to include Xxxxxx Xxxxxxx and Xxxxxx Xxxxxxx) to promote or market any such product or service, (iii) the creation, publication or distribution of regular or special issues of magazines and operation of websites, and (iv) any other business in which the Company is engaged during the term of this Agreement (it being understood that a media business shall not be deemed to engage in Competitive Activity if the content produced by such media business does not compete with the content of the such programs (in the case of clause (i)) or magazines or websites (in the case of clause (iii)). The Executive shall be considered to have become “associated with a Competitive Activity” if he becomes involved as an owner, employee, officer, director, independent contractor, agent, partner, advisor, or in any other capacity calling for the rendition of the Executive’s personal services, with any individual, partnership, corporation or other organization that is engaged in a Competitive Activity and his involvement relates to a significant extent to the Competitive Activity of such entity; provided, however, that the Executive shall not be prohibited from (a) owning less than two percent of any publicly traded corporation, whether or not such corporation is in competition with the Company or (b) serving as a director of a corporation or other entity the primary business of which is not a Competitive Activity; and provided, further, however, that the Executive shall not be deemed to have become associated with a Competitive Activity if the Executive becomes chief executive officer of an organization that engages in one or more Competitive Activities so long as (i) less than 10% of the annual revenue of such organization is derived from Competitive Activities and (ii) the Executive does not actively participate in the management or operation of the part of such organization that engages in any Competitive Activity. If, at any time, the provisions of this Section 10(b) shall be determined to be invalid or unenforceable, by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 10(b) shall be considered divisible and shall become and be immediately amended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and the Executive agrees that this Section 10(b) as so amended shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
(c) Nonsolicitation. During the Employment Term, and for twenty-four (24) months after the Executive’s Date of Termination, the Executive shall not, directly or indirectly, (1) solicit for employment by other than the Company any person (other than any personal secretary or assistant hired to work directly for the Executive) employed by the Company or its affiliated companies as of the Date of Termination, (2) solicit for employment by other than the Company any person known by the Executive (after reasonable inquiry) to be employed at the time by the Company or its affiliated companies as of the date of the solicitation or (3) solicit any customer or other person with a business relationship with the Company or any of its affiliated companies to terminate, curtail or otherwise limit such business relationship.
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(d) Non-disparagement. During the Employment Term and thereafter, (i) the Executive shall not, directly or indirectly, make or publish any disparaging statements (whether written or oral) regarding the Company or any of its affiliated companies or businesses, or the affiliates, directors, officers, agents, principal stockholders or customers of any of them and (ii) neither the Company nor any of its affiliated companies or businesses or their affiliates, directors, or officers shall directly or indirectly, make or publish any disparaging statements (whether written or oral) regarding the Executive. Executive shall not author, co-author, or assist in the production or authorship of any story, book, show, script or other work about the Company or Xxxxxx Xxxxxxx without the Company’s prior review of such work and the Company’s written consent as to the production and content thereof.
(e) Injunctive Relief. In the event of a breach or threatened breach of this Section 10, each party agrees that the non-breaching party shall be entitled to injunctive relief in a court of appropriate jurisdiction to remedy any such breach or threatened breach, the parties acknowledging that damages would be inadequate and insufficient.
11. Reimbursement of Legal Fees. If any contest or dispute shall arise between the Company and the Executive regarding any provision of this Agreement, the Company shall reimburse the Executive for all legal fees and expenses reasonably incurred by the Executive in connection with such contest or dispute, but only if the Executive prevails to a substantial extent with respect to the Executive’s claims brought and pursued in connection with such contest or dispute. Such reimbursement shall be made as soon as practicable but not later than ninety (90) days following the resolution of such contest or dispute (whether or not appealed) to the extent the Company receives written evidence of such fees and expenses.
12. Indemnification.
(a) General. The Company agrees that if the Executive is made a party or is threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that the Executive is or was a trustee, director or officer of the Company or any of its affiliates or is or was serving at the request of the Company or any of its affiliates as a trustee, director, officer, member, employee or agent of another corporation or a partnership, joint venture, limited liability company, trust or other enterprise, including, without limitation, service with respect to employee benefit plans, whether or not the basis of such Proceeding is alleged action in an official capacity as a trustee, director, officer, member, employee or agent while serving as a trustee, director, officer, member, employee or agent, the Executive shall be indemnified and held harmless by the Company to the fullest extent authorized by Delaware law, as the same exists or may hereafter be amended, against all Expenses incurred or suffered by the Executive in connection therewith, and such indemnification shall continue as to the Executive even if the Executive has ceased to be a trustee, director, officer, member, employee or agent, or is no longer employed by the Company and shall inure to the benefit of his heirs, executors and administrators.
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(b) Expenses. As used in this Agreement, the term “Expenses” shall include, without limitation, damages, losses, judgments, liabilities, fines, penalties, excise taxes, settlements, and costs, attorneys’ fees, accountants’ fees, and disbursements and costs of attachment or similar bonds, investigations, and any expenses of establishing a right to indemnification under this Agreement.
(c) Enforcement. If a claim or request under this Section 12 is not paid by the Company or on its behalf, within thirty (30) days after a written claim or request has been received by the Company, the Executive may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim or request and if successful in whole or in part, the Executive shall be entitled to be paid also the expenses of prosecuting such suit. All obligations for indemnification hereunder shall be subject to, and paid in accordance with, applicable Delaware law.
(d) Partial Indemnification. If the Executive is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify the Executive for the portion of such Expenses to which the Executive is entitled.
(e) Advance of Expenses. Expenses incurred by the Executive in connection with any Proceeding shall be paid by the Company in advance upon request of the Executive that the Company pay such Expenses, but only in the event that the Executive shall have delivered in writing to the Company (i) an undertaking to reimburse the Company for Expenses with respect to which the Executive is not entitled to indemnification and (ii) a statement of his good faith belief that the standard of conduct necessary for indemnification by the Company has been met.
(f) Notice of Claim. The Executive shall give to the Company notice of any claim made against him for which indemnification will or could be sought under this Agreement. In addition, the Executive shall give the Company such information and cooperation as it may reasonably require and as shall be within the Executive’ s power and at such times and places as are convenient for the Executive.
(g) Defense of Claim. With respect to any Proceeding as to which the Executive notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate therein at its own expense;
(ii) Except as otherwise provided below, to the extent that it may wish, the Company will be entitled to assume the defense thereof, with counsel reasonably satisfactory to the Executive, which in the Company’s sole discretion may be regular counsel to the Company and may be counsel to other officers and directors of the Company or any subsidiary. The Executive also shall have the right to employ his own counsel in such action, suit or proceeding if he reasonably concludes that failure to do so would involve a conflict of interest between the Company and the Executive, and under such circumstances the fees and expenses of such counsel shall be at the expense of the Company.
(iii) The Company shall not be liable to indemnify the Executive under this Agreement for any amounts paid in settlement of any action or claim effected without its
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written consent. The Company shall not settle any action or claim in any manner which would impose any penalty that would not be paid directly or indirectly by the Company or limitation on the Executive without the Executive’s written consent. Neither the Company nor the Executive will unreasonably withhold or delay their consent to any proposed settlement.
(h) Non-Exclusivity. The right to indemnification and the payment of expenses incurred in defending a Proceeding in advance of its final disposition conferred in this Section 12 shall not be exclusive of any other right which the Executive may have or hereafter may acquire under any statute or certificate of incorporation or by-laws of the Company or any subsidiary, agreement, vote of shareholders or disinterested directors or trustees or otherwise.
(i) Insurance. The Executive shall be covered by the directors’ and officers’ insurance policies maintained by the Company on the same basis as other directors and officers of the Company.
13. Dispute Resolution. Except as set forth in Section 10(e), any controversy or claim arising out of or relating to this Agreement or the making, interpretation or breach thereof shall be settled by arbitration in New York City, New York by three arbitrators in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof, and any party to the arbitration may institute proceedings in any court having jurisdiction for the specific performance of any such award. The powers of the arbitrator shall include, but not be limited to, the awarding of injunctive relief.
14. Representations.
(a) The Executive represents and warrants that (i) he is not subject to any contract, arrangement, policy or understanding, or to any statute, governmental rule or regulation, that in any way limits his ability to enter into and fully perform his obligations under this Agreement and (ii) he is not otherwise unable to enter into and fully perform his obligations under this Agreement.
(b) The Company represents and warrants to the Executive that (i) this Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding obligation of the Company and (ii) subject to the accuracy of the Executive’s representation in Section 14(a), the employment of the Executive on the terms and conditions contained in this Agreement will not conflict with or result in a breach or violation of the terms of any contract or other obligation or instrument to which the Company is a party or by which it is bound or any statute, law, rule, regulation, judgment, order or decree applicable to the Company.
15. Successors; Binding Agreement.
(a) Company’s Successors. No rights or obligations of the Company under this Agreement may be assigned or transferred, except that the Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be
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required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall include any successor to its business and/or assets (by merger, purchase or otherwise) which executes and delivers the agreement provided for in this Section 15 or which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law.
(b) Executive’s Successors. No rights or obligations of the Executive under this Agreement may be assigned or transferred by the Executive other than his rights to payments or benefits hereunder, which may be transferred only by will or the laws of descent and distribution. Upon the Executive’s death, this Agreement and all rights of the Executive hereunder shall inure to the benefit of and be enforceable by the Executive’s beneficiary or beneficiaries, personal or legal representatives, or estate, to the extent any such person succeeds to the Executive’s interests under this Agreement. If the Executive should die following his Date of Termination while any amounts would still be payable to him hereunder if he had continued to live, all such amounts unless otherwise provided herein shall be paid in accordance with the terms of this Agreement to such person or persons so appointed in writing by the Executive, or otherwise to his legal representatives or estate.
16. Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered either personally or by United States certified or registered mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive, at his residence address most recently filed with the Company; and
a copy to:
Xxxxxx Xxxxxx, Esq.
Xxxxxx Xxxxxx Rosenman, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000 Fax: (000) 000-0000
If to the Company:
Xxxxxx Xxxxxxx Living Omnimedia, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000;
or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
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17. Mitigation. The Executive shall not be required to mitigate damages with respect to the termination of his employment under this Agreement by seeking other employment or otherwise, and there shall be no offset against amounts due the Executive under this Agreement on account of subsequent employment except as specifically provided in Section 9(b). Additionally, amounts owed to the Executive under this Agreement shall not be offset by any claims the Company may have against the Executive, and the Company’s obligation to make the payments provided for in this Agreement, and otherwise to perform its obligations hereunder, shall not be affected by any other circumstances, including, without limitation, any counterclaim, recoupment, defense or other right which the Company may have against the Executive or others.
18. Modification; Waiver. No provision of this Agreement may be amended, modified, or waived unless such amendment or modification is agreed to in writing and signed by the Executive and by a duly authorized officer of the Company, and such waiver is set forth in writing and signed by the party to be charged. No waiver by either party hereto at any time of any breach by the other party hereto of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
19. Section 409A.
(a) The intent of the parties is that payments and benefits under this Agreement comply with Section 409A and, accordingly, to the maximum extent permitted, all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A. Executive is hereby advised to seek independent advice from your tax advisor(s) with respect to any payments or benefits under this Agreement. Notwithstanding the foregoing, the Company does not guarantee the tax treatment of any payments or benefits provided under this Agreement, whether pursuant to the Code, federal, state, local or foreign tax laws and regulations.
(b) If the Executive is deemed on the date of termination of his “separation from service” with the Company to be a “specified employee”, each within the meaning of Section 409A(a)(2)(B) of the Code, then with regard to any payment or the providing of any benefit under this Agreement, and any other payment or the provision of any other benefit that is required to be delayed in compliance with Section 409A(a)(2)(B) of the Code, such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six-month period measured from the date of the Executive’s separation from service or, (ii) the date of the Executive’s death if and to the extent such six-month delay is required to comply with Section 409A(a)(2)(B) of the Code. In such event, on or promptly after the first business day following the six-month delay period, all payments delayed pursuant to this Section19 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
(c) If under this Agreement, an amount is to be paid in installments, each installment shall be treated as a separate payment for purposes of Treasury Regulations Section 1.409A2(b)(2)(iii).
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20. Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
21. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.
22. Entire Agreement. This Agreement (and Exhibits hereto) together with the Indemnification Agreement dated May 19, 2011 between the Company and the Executive and the post-employment services agreement (and exhibit thereto) referenced in Section 26 below set forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersede all prior agreements, promises, covenants, arrangements, communications, representations and warranties, whether oral or written, by any officer, employee or representative of any party hereto in respect of such subject matter.
23. Withholding. All payments hereunder shall be subject to any required withholding of federal, state and local taxes pursuant to any applicable law or regulation.
24. Section Headings. The section headings in this Agreement are for convenience of reference only, and they form no part of this Agreement and shall not affect its interpretation.
25. Governing Law; Survival. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of New York without regard to its conflicts of law principles. Each of the parties agrees that if any dispute is not resolved by the parties pursuant to Section 13, such dispute shall be resolved only in the courts of the State of New York sitting in the County of New York or the United States District Court for the Southern District of New York and the appellate courts having jurisdiction of appeals in such courts. In that context, and without limiting the generality of the foregoing, each of the parties irrevocably and unconditionally (a) submits for itself in any Proceeding relating to this Agreement, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York sitting in the County of New York, the court of the United States of America for the Southern District of New York, and appellate courts having jurisdiction of appeals from any of the foregoing, and agrees that all claims in respect of any such Proceeding shall be heard and determined in such New York State court or, to the extent permitted by law, in such federal court; (b) consents that any such Proceeding may and shall be brought in such courts and waives any objection that it may now or thereafter have to the venue or jurisdiction of any such Proceeding in any such court or that such Proceeding was brought in an inconvenient court and agrees not to plead or claim the same; (c) waives all right to trial by jury in any Proceeding (whether based on contract, tort or otherwise) arising out of or relating to this Agreement, or its performance under or the enforcement of this Agreement; (d) agrees that service of process in any such Proceeding may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such party at its address as provided in Section 16; and (e) agrees that nothing in this Agreement shall affect the right to effect service of process in any other manner permitted by the laws of the State of New York. The provisions of Section 10 that are intended to survive the Employment Term shall remain in full force and effect for their respective periods of duration; it being understood that the provisions of Section 10(d) shall be perpetual.
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26. Contemporaneous Execution of Services Agreement Regarding Post-Employment Services. Contemporaneously with the execution hereof, the parties each shall execute the services agreement attached hereto as Exhibit B.
27. Release.
(a) For and in consideration of the payments to be provided to Executive pursuant to this Agreement and the agreements referenced in this Agreement, Executive hereby irrevocably releases the Company, its past and present parents, subsidiaries and affiliates, and the directors, officers, employees, shareholders, attorneys, agents, representatives and advisors and the successors, predecessors and assigns of each of such persons and entities (and those acting on their behalf in any capacity whatsoever) (collectively, the “Company Released Parties”) from all claims, counterclaims, actions, complaints, causes of action, judgments, debts, rights to indemnification, demands or suits, at law or in equity, known or unknown, arising from, relating to or otherwise concerning Executive’s service with the Company and its subsidiaries and affiliates, which Executive or any of his executors, administrators or heirs and the successors, predecessors and assigns of each of the foregoing ever had, now have or hereafter can, shall or may have, for, upon or by reason of any matter, cause or thing whatsoever from the beginning of time to the Effective Date, including, without limitation, any claims arising out of, relating to or otherwise concerning the Employment Agreement between the Executive and the Company dated September 17, 2008, as amended (the “2008 Employment Agreement”) on or prior to the Effective Date (the “Release of Claims”). This Release of Claims includes, without limitation, any claims arising out of federal, state or local wage payment, discrimination, sexual harassment, hostile work environment, retaliation, and fair employment practice law, including, without limitation, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sections 2000e et seq., the Age Discrimination in Employment Act, as amended, 29 U.S.C. Sections 621 et seq. (“ADEA”), the Americans with Disabilities Act, as amended, 42 U.S.C. Sections 12101 et seq., the Family and Medical Leave Act of 1993, as amended, 29 U.S.C. Sections 2601 et seq., the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Sections 201 et seq., the Employment Retirement Income Security Act of 1974, as amended, 29 U.S.C. Sections 1001 et seq., and any other federal, state or local law or ordinance (whether common law or statutory) dealing with discrimination in employment on the basis of sex, gender, age, race, color, national origin, religion, disability or equal pay requirements, or other protected category, including, without limitation, such claims based on theories of the mental and physical condition, sexual harassment, hostile work environment, retaliation, contract or tort. Excluded from the scope of this Release of Claims, however, are (i) any rights Executive has arising under this Agreement after the Effective Date; (ii) any rights Executive has arising after the Effective Date under Executive’s Restricted Stock Agreement dated October 1, 2008, Executive’s Restricted Stock Unit Agreements dated October 1, 2008, March 2, 2009 (as amended January 31, 2011) and March 1, 2010 (as amended January 31, 2011), and Executive’s Stock Option Agreements dated July 22, 2004, March 10, 2005, October 27, 2005, May 17, 2006, May 17, 2007, May 20, 2008, October 1, 2008, March 2, 2009, March 1, 2010 and March 1, 2011; and (iii) any rights Executive has or hereafter acquires to indemnification and advancement of expenses in
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accordance with the Indemnification Agreement, Section 12 of the 2008 Employment Agreement or the provisions of certificates of incorporation, by-laws or other governing documents of the Company and its subsidiaries and affiliates. Executive covenants not to xxx the Company or any other person or entity described above, at law or in equity, in any forum, for any claims, counterclaims, actions, complaints or causes of actions that are within the scope of this Release of Claims.
(b) Executive hereby acknowledges and confirms that: (i) he was advised by the Company to consult with an attorney of his own selection regarding the terms of this Release of Claims; (ii) he was given a period of not fewer than twenty-one days to consider the terms of this Release of Claims and to consult with an attorney of his own selection with respect thereto, although he was free to sign this Release of Claims at any time during this period; and (iii) he knowingly and voluntarily accepts the terms of this Release of Claims.
(c) Executive understands that he may revoke this Release of Claims with respect to claims arising under ADEA at any time within seven (7) days of the date of his signing by providing written notice to the Company at the address specified in Section 16, and that with respect to claims arising under ADEA, this Release of Claims will take effect only upon the expiration of such seven-day revocation period and only if he has not timely revoked it.
28. Representation Regarding Claims. The Company represents and warrants to the Executive that, as of the Effective Date, the Board of Directors is not aware of any claims that the Company may have against the Executive arising from, relating to or otherwise concerning Executive’s service with the Company and its subsidiaries and affiliates.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| XXXXXX XXXXXXX LIVING OMNIMEDIA, INC. | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | EVP + General Counsel | |
| /s/ Xxxxxxx X. Xxxxxxxxx | ||
| Xxxxxxx X. Xxxxxxxxx | ||
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Exhibit A
GENERAL RELEASE1
This General Release (the “Release”) is executed by Xxxxxxx X. Xxxxxxxxx (“Executive”) pursuant to Section 9(b) of the Amended and Restated Employment Agreement between Executive and Xxxxxx Xxxxxxx Living Omnimedia, Inc., dated July 20, 2011 (the “Employment Agreement”).
WHEREAS, Executive’s employment with the Company has terminated;
WHEREAS, the Company and Executive intend that the terms and conditions of the Employment Agreement and this Release shall govern all issues relating to Executive’s employment and termination of employment with the Company;
WHEREAS, Executive acknowledges that the consideration to be provided to Executive under the Employment Agreement is sufficient to support this Release; and
WHEREAS, Executive understands that the Company regards the representations by Executive in the Employment Agreement and this Release as material and the Company is relying upon such representations in paying amounts to Executive pursuant to the Employment Agreement.
EXECUTIVE THEREFORE AGREES AS FOLLOWS:
1. Executive’s employment with the Company terminated on , and Executive has and will receive the payments and benefits set forth in Section 9 of the Employment Agreement in accordance with the terms and subject to the conditions thereof.
2. Executive hereby irrevocably releases the Company, its past and present parents, subsidiaries and affiliates, and the directors, officers, employees, shareholders, attorneys, agents, representatives and advisors and the successors, predecessors and assigns of each of such persons and entities (and those acting on their behalf in any capacity whatsoever) (collectively, the “Company Released Parties”) from all claims, counterclaims, actions, complaints, causes of
| 1 | The Company will provide a contemporaneous representation to the Executive to the effect that as of the date of the General Release, with such exceptions as are disclosed to the Executive by the Company, the Board of Directors is not aware of any claims which the Company may have against the Executive arising from, relating to or otherwise concerning Executive’s service with the Company and its subsidiaries and affiliates. |
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action, judgments, debts, rights to indemnification, demands or suits, at law or in equity, known or unknown, arising from, relating to or otherwise concerning Executive’s service with the Company and its subsidiaries and affiliates, which Executive or any of his executors, administrators or heirs and the successors, predecessors and assigns of each of the foregoing ever had, now have or hereafter can, shall or may have, for, upon or by reason of any matter, cause or thing whatsoever from the beginning of time to the effective date of this Release (the “Release of Claims”). This Release of Claims includes, without limitation, any claims arising out of federal, state or local wage payment, discrimination, sexual harassment, hostile work environment, retaliation, and fair employment practice law, including, without limitation, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sections 2000e et seq., the Age Discrimination in Employment Act, as amended, 29 U.S.C. Sections 621 et seq. (“ADEA”), the Americans with Disabilities Act, as amended, 42 U.S.C. Sections 12101 et seq., the Family and Medical Leave Act of 1993, as amended, 29 U.S.C. Sections 2601 et seq., the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Sections 201 et seq., the Employment Retirement Income Security Act of 1974, as amended, 29 U.S.C. Sections 1001 et seq., and any other federal, state or local law or ordinance (whether common law or statutory) dealing with discrimination in employment on the basis of sex, gender, age, race, color, national origin, religion, disability or equal pay requirements, or other protected category, including, without limitation, such claims based on theories of the mental and physical condition, sexual harassment, hostile work environment, retaliation, contract or tort. Excluded from the scope of this Release of Claims, however, are (i) any rights Executive has to receive the payments and benefits set forth in Section 9 of the Employment Agreement in accordance with the terms and subject to the conditions thereof; (ii) any rights Executive has arising after the effective date of this Release under Executive’s Restricted Stock Agreement dated October 1, 2008, Executive’s Restricted Stock Unit Agreements dated March 2, 2009 (as amended January 31, 2011) and March 1, 2010 (as amended January 31, 2011), and Executive’s Stock Option Agreements dated July 22, 2004, March 10, 2005, October 27, 2005, May 17, 2006, May 17, 2007, May 20, 2008, October 1, 2008, March 2, 2009, March 1, 2010 and March 1, 20112; (iii) any rights Executive has or hereafter acquires to indemnification and advancement of expenses in accordance with the Indemnification Agreement between the Company and Executive dated May 19, 2011, Section 12 of the Employment Agreement, Section 12 of the Employment Agreement between the Company and Executive dated September 17, 2008, or the provisions of certificates of incorporation, by-laws or other governing documents of the Company and its subsidiaries and affiliates; and (iv) any rights Executive has or hereafter acquires under the Services Agreement between the Company and Executive dated July 20, 2011. Executive covenants not to xxx the Company or any other person or entity described above, at law or in equity, in any forum, for any claims, counterclaims, actions, complaints or causes of actions that are within the scope of this Release of Claims.
| 2 | To be updated to reflect outstanding equity awards on the date of the General Release. |
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3. Executive hereby acknowledges and confirms that: (i) he was advised by the Company to consult with an attorney of his own selection regarding the terms of this Release of Claims; (ii) he was given a period of not fewer than twenty-one days to consider the terms of this Release of Claims and to consult with an attorney of his own selection with respect thereto, although he was free to sign this Release of Claims at any time during this period; and (iii) he knowingly and voluntarily accepts the terms of this Release of Claims.
4. Executive understands that he may revoke this Release of Claims with respect to claims arising under ADEA at any time within seven (7) days of the date of his signing by providing written notice to the Company at the address specified in Section 16 of the Employment Agreement, and that with respect to claims arising under ADEA, this Release of Claims will take effect only upon the expiration of such seven-day revocation period and only if he has not timely revoked it.
5. The invalidity or unenforceability of any provision or provisions of this Release shall not affect the validity or enforceability of any other provision of this Release, which shall remain in full force and effect.
6. The validity, interpretation, construction and performance of this Release shall be governed by the law of the State of New York without regard to its conflicts of law principles. In the event of any dispute regarding this Release, the provisions of Section 25 of the Employment Agreement shall govern.
7. The Employment Agreement and this Release constitute the entire understanding between the parties with respect to the subject matter hereof. Executive has not relied on any oral statements that are not included in the Employment Agreement or this Release.
| Date: |
|
/s/ Xxxxxxx X. Xxxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxxx | ||||||
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Exhibit B
SERVICES AGREEMENT
This Services Agreement (the “Agreement”) is entered into by and between Xxxxxx Xxxxxxx Living Omnimedia, Inc., a Delaware corporation (the “Company”), and Xxxxxxx X. Xxxxxxxxx (“Xxxxxxxxx”) as of July 20, 2011.
Whereas, Xxxxxxxxx is currently performing services for the Company in the capacity of Executive Chairman of the Company pursuant to the Amended and Restated Employment Agreement dated as of July 20, 2011 by and between the Company and Xxxxxxxxx (the “Employment Agreement”) and as a member of the Company’s Board of Directors (the “Board”);
Whereas, Xxxxxxxxx’x services under the Employment Agreement and as a member of the Board will terminate on the earlier of December 31, 2011 or the date on which the President and Chief Operating Officer of the Company reports directly to the Company’s Board (the “Transition Date”);
Whereas, the Company desires to continue the services of Xxxxxxxxx following the Transition Date, and Xxxxxxxxx is willing to continue to perform services for the Company following the Transition Date, in each case on the terms and subject to the conditions set forth herein;
Now, therefore, in consideration of the mutual promises and obligations contained herein, intending to be legally bound hereby, the Company and Xxxxxxxxx agree as follows:
1. Term. Subject to Xxxxxxxxx’x services under the Employment Agreement continuing through the Transition Date, this Agreement shall become effective as of the Transition Date and shall continue for the duration of Xxxxxxxxx’x services as a member of the Board.
2. Services. Commencing on the Transition Date, Xxxxxxxxx will continue to serve as a member of the Company’s Board. In addition, Xxxxxxxxx will be nominated to continue to serve as a member of the Company’s Board at the annual shareholders’ meeting to be held in 2012, provided the Company’s stock remains listed on the NASDAQ Stock Market or the New York Stock Exchange through such date. So long as he remains a member of the Board, Xxxxxxxxx will serve as Non Executive Chairman, Vice Chairman or Special Committee Chairman, as the Board may determine in its discretion, and shall have such duties and responsibilities as may be assigned by the Board. In addition, from the Transition Date through December 31, 2012, Xxxxxxxxx will make himself available to assist with an orderly transition of his responsibilities to a new principal executive officer as reasonably requested by the Company.
3. Compensation. During the term of this Agreement, Xxxxxxxxx shall be entitled to receive Board fees on the same terms as apply from time to time to independent members of he Board, including an initial grant of restricted stock units equivalent to an equal number of
shares of Class A common stock, par value $0.01 per share, of the Company (“Common Stock”), having a value of $50,000 on the Transition Date, and containing terms substantially similar to those contained in initial Director grants, pursuant to the terms of the Xxxxxx Xxxxxxx Living Omnimedia, Inc. Omnibus Stock and Option Compensation Plan (the “Plan”). In addition, in consideration of his serving as Chairman, Vice Chairman or Special Committee Chairman and assisting with transition, Executive shall be entitled to receive on the Transition Date 100,000 performance-vested restricted stock units (“RSUs”) representing 100,000 shares of Common Stock pursuant to the terms of the Plan, which shall vest as follows: 50,000 RSUs shall vest at such time as the trailing average closing price of the Common Stock during any 30 consecutive days during the period from the Transition Date through December 31, 2012 has been at least $6, and 50,000 RSUs shall vest at such time as the trailing average closing price of the Common Stock during any 30 consecutive days during the period from the Transition Date through December 31, 2012 has been at least $8. To the extent vested, the RSUs will be settled on December 31, 2012 or, if earlier, Xxxxxxxxx’x termination of service as a member of the Board (other than on account of voluntary resignation by Xxxxxxxxx or removal by the Company for cause). Upon voluntary resignation by Xxxxxxxxx or removal by the Company for cause prior to December 31, 2012, any RSUs (whether vested or unvested) will be forfeited. In the event of a Change in Control (as defined in the Employment Agreement) of the Company prior to December 31, 2012, the Company will accelerate the vesting and settlement of the RSUs. The RSUs will be awarded pursuant to a Restricted Stock Unit Agreement substantially in the form attached hereto as Exhibit A. Except for amounts accrued under this Section 3, Executive will not be entitled to any additional payments upon termination of his services under this Agreement.
4. Office. During the Term, Xxxxxxxxx shall be provided with a suitable office and secretarial assistance at the Company’s offices and use of appropriate telecommunication devices (e.g., cell phone, blackberry).
5. Independent Contractor Status. Xxxxxxxxx shall provide the services to the Company under this Agreement as an independent contractor and, as such, shall be free to exercise his own discretion and judgment in the performance of such services and with respect to the time, place, method, and manner of performance. Nothing contained in this Agreement or in the performance of any consulting services shall be construed as creating the relationship of employer and employee between the Company and Xxxxxxxxx. Xxxxxxxxx will not be entitled to participate in any of the Company’s employee benefit plans or otherwise receive any insurance or other employee benefits provided to employees of the Company on account of any services provided by him under this Agreement.
6. Withholding Tax. The Company shall not withhold federal, state or local taxes with respect to the compensation payable to Xxxxxxxxx under this Agreement, and Xxxxxxxxx shall bear sole responsibility for the payment of all taxes due in connection with such compensation.
7. Non-Exclusivity of Services. This Agreement does not prohibit Xxxxxxxxx from performing services for other businesses, to the extent otherwise permitted under Section 10 of the Employment Agreement.
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8. Indemnification. The Indemnification Agreement dated May 19, 2011 between the Company and Xxxxxxxxx (the “Indemnification Agreement”) shall remain in full force and effect.
9. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement or the making, interpretation or breach thereof shall be settled by arbitration in New York City, New York by three arbitrators in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof, and any party to the arbitration may institute proceedings in any court having jurisdiction for the specific performance of any such award. The powers of the arbitrator shall include, but not be limited to, the awarding of injunctive relief.
10. Successors
(c) Company’s Successors. No rights or obligations of the Company under this Agreement may be assigned or transferred without the consent of Xxxxxxxxx except in connection with a sale or transfer of the capital stock, business and/or assets of the Company by merger, purchase or otherwise or in connection with any corporate restructuring of the Company for which no consent of Xxxxxxxxx will be required.
(d) Xxxxxxxxx’x Successors. No rights or obligations of Xxxxxxxxx under this Agreement may be assigned or transferred by Xxxxxxxxx other than his rights to payments hereunder, which may be transferred only by will or the laws of descent and distribution. Upon Xxxxxxxxx’x death, this Agreement and all rights of Xxxxxxxxx hereunder shall inure to the benefit of and be enforceable by Xxxxxxxxx’x beneficiary or beneficiaries, personal or legal representatives, or estate, to the extent any such person succeeds to Xxxxxxxxx’x interests under this Agreement.
11. Notice. For the purposes of this Agreement, notices, demands and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered either personally or by United States certified or registered mail, return receipt requested, postage prepaid, addressed as follows:
If to Xxxxxxxxx, at his residence address most recently filed with the Company; and
a copy to:
Xxxxxx Xxxxxx, Esq.
Xxxxxx Xxxxxx Rosenman, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
If to the Company:
Xxxxxx Xxxxxxx Living Omnimedia, Inc.
000 Xxxx 00xx Xxxxxx
0
Xxx Xxxx, XX 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000;
or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
12. Modification; Waiver. No provision of this Agreement may be amended, modified, or waived unless such amendment or modification is agreed to in writing and signed by Xxxxxxxxx and by a duly authorized officer of the Company, and such waiver is set forth in writing and signed by the party to be charged. No waiver by either party hereto at any time of any breach by the other party hereto of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
13. Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement which shall remain in full force and effect.
14. Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
15. Entire Agreement. This Agreement and the Indemnification Agreement set forth the entire understanding of the parties as to the subject matter herein and supersede all prior agreements between the parties, whether written or oral, relating to the same subject matter. Notwithstanding the foregoing, the parties expressly acknowledge and agree that the Employment Agreement shall remain in full force and effect through the Transition Date and that the post-employment covenants contained in Section 10 of the Employment Agreement shall thereafter remain in full force and effect in accordance with their terms.
16. Section Headings; Absence of Presumption. The section headings in this Agreement are for convenience of reference only, and they form no part of this Agreement and shall not affect its interpretation. With regard to each and every term and condition of this Agreement, the parties hereto understand and agree that the same have been mutually negotiated, prepared and drafted, and if at any time the parties hereto desire or are required to interpret or construe any such term or condition, no consideration will be given to the issue of which party hereto actually prepared, drafted or requested any term or condition of this Agreement
17. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of New York without regard to its conflicts of law principles. Each of the parties agrees that any action to enforce an arbitration award rendered pursuant to Section 9 shall be initiated and maintained only in the courts of the State of New York sitting in the County of New York or the United States District Court for the Southern District of New York and the appellate courts having jurisdiction of appeals in such courts. In that context, and without limiting the generality of the foregoing, each of the parties
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irrevocably and unconditionally (a) submits for itself in any proceeding relating to this Agreement, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York sitting in the County of New York, the court of the United States of America for the Southern District of New York, and appellate courts having jurisdiction of appeals from any of the foregoing, and agrees that all claims in respect of any such proceeding shall be heard and determined in such New York State court or, to the extent permitted by law, in such federal court; (b) consents that any such proceeding may and shall be brought in such courts and waives any objection that it may now or thereafter have to the venue or jurisdiction of any such proceeding in any such court or that such proceeding was brought in an inconvenient court and agrees not to plead or claim the same; (c) waives all right to trial by jury in any proceeding (whether based on contract, tort or otherwise) arising out of or relating to this Agreement, or its performance under or the enforcement of this Agreement; (d) agrees that service of process in any such proceeding may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such party at its address as provided in Section 11; and (e) agrees that nothing in this Agreement shall affect the right to effect service of process in any other manner permitted by the laws of the State of New York.
IN WITNESS WHEREOF, the Company and Xxxxxxxxx have executed this Agreement on the day and year first written above.
| XXXXXX XXXXXXX LIVING OMNIMEDIA, INC. | ||
| By: |
| |
| Name: | ||
| Title: | ||
| /s/ Xxxxxxx X. Xxxxxxxxx | ||
| Xxxxxxx X. Xxxxxxxxx | ||
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