Exhibit 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
this 1st day of November, 1999, by and between BIG CITY RADIO, INC., a Delaware
Corporation (hereinafter called the "Company"), and Xxxxxxx X. Xxxxxxxxx
(hereinafter called the "Executive").
The Company wishes to employ the Executive, and the Executive wishes to
enter into the employ of the Company, upon the terms and subject to the
conditions contained in this Agreement.
Accordingly, in consideration of the foregoing and of the mutual
promises hereinafter set forth, the parties hereby agree as follows:
1. EMPLOYMENT.
1.1 EMPLOYMENT AND TERM. The Company shall employ the
Executive and the Executive shall serve the Company, on the terms and conditions
set forth herein, for the period (the "Term") commencing the date hereof and
expiring October 31, 2002, unless sooner terminated as hereinafter set forth;
provided, however, that the Term of this Agreement shall be extended for a one
(1) year period unless, at least sixty (60) days prior to the expiration of the
Term, the Company shall have delivered to the Executive notice that this
Agreement will not be renewed. The parties hereto agree that the terms of any
renewal of this Agreement shall be negotiated in good faith at the time of any
such renewal.
1.2 DUTIES OF EXECUTIVE. The Executive shall serve as the
President and Chief Executive Officer of the Company and a member of the Board
of Directors, and shall perform the duties commensurate with such position,
shall diligently perform all services as may be reasonably assigned to him by
the Board of Directors of the Company (the "Board") and shall exercise such
power and authority as may from time to time be delegated to him by the Board.
The Executive's duties shall also include the development of the web site
presently called xxxxxxxxx.xxx or any other name that may be provided to this
web site or similar web site. Nothing contained in this Agreement shall be
deemed to preclude Executive from maintaining any ownership interest in any
entity other than the Company so long as such ownership does not conflict or
interfere with the performance by the Executive of his duties hereunder. It is
expressly recognized that the Executive is a member of the Board of Directors of
Hispanic Internet Holdings, Inc.(xxxxxxxxx.xxx), Continucare Corporation and
Ivax Corporation which requires the Executive to devote a limited amount of his
business time and efforts to fulfill his duties as director to these
corporations. The Executive represents and warrants that the performance by the
Executive of his duties for these named corporations shall not affect the
Executive's performance of his duties as Chief Executive Officer and President
of the Company. However, the parties hereto expressly agree that the performance
by the Executive of his duties to Hispanic Internet Holdings,
Inc.(xxxxxxxxx.xxx), Continucare Corporation and Ivax Corporation, in each case,
as a director only, shall not be deemed to constitute a breach in any manner of
this Agreement or Executive's duties to the Company
hereunder. The Executive shall devote substantially all of the Executive's time,
attention, skills and energies to the business and affairs of the Company to the
best of Executive's abilities and to the satisfaction of the Company and to the
exclusion of all other employment and to the exclusion of any business
activities which conflict or interfere with the performance of the Executive's
duties hereunder. The Company shall not be obligated to utilize the Executive's
services hereunder and its entire obligation to the Executive shall be fulfilled
by making all of the payments and providing all of the benefits due to the
Executive under Sections 2 and 3 of the Agreement. The Executive's performance
of duties hereunder shall be subject to the direction and control of the
Chairman of the Board of Directors of the Company or his or his designee. The
Executive agrees to accept and perform without further consideration the duties
of such offices, directorships and titles to which the Executive is selected or
named by the Company. The Executive shall perform the Executive's duties at such
locations, subject to Section 1.3, and shall perform all travel requested by the
Company or otherwise necessary in the performance of such duties.
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1.3 PLACE OF PERFORMANCE. The Company agrees the Executive
shall remain a Florida resident and Executive will operate out of the offices
currently maintained in New York City, New York by the Company and the offices
of Hispanic Internet Holdings, Inc. in Miami, Dade County Florida.
2. COMPENSATION.
2.1 ANNUAL BASE SALARY. Subject to Section 2.2, the Executive
shall receive a base salary during the Term at a calculated initial annual base
salary of Four Hundred and Fifty Thousand Dollars ($450,000.00) (the "Base
Salary"), such Base Salary to be payable in substantially equal installments
consistent with the Company's normal payroll schedule, subject to applicable
withholding and other taxes.
2.2 COST OF LIVING INCREASES. Upon each anniversary of this
Agreement during the Term, commencing November 1, 2000, the Base Salary of the
immediately preceding year shall be increased by the greater of (i) that
percentage by which the Consumer Price Index (All Items Less Shelter), Urban
Wage Earners and Clerical Workers, for the Miami, Florida, area published by the
United States Government (the "Index") for the immediately preceding calendar
year exceeds such Index for the then current year, or (ii) five percent (5%) of
the Base Salary during the immediate preceding year. If publication of the Index
is discontinued, the parties hereto shall accept comparable statistics on the
cost of living for the Miami, Florida, area as computed and published by an
agency of the United States government or, if no such agency computes and
publishes such statistics, by any regularly published national financial
periodical that does compute and publish such statistics.
2.3 ANNUAL BONUS. The Executive shall be entitled to receive
such annual bonus payments or incentive compensation (the "Bonus") as may be
determined at any time or from time to time by the Board (or any authorized
committee thereof) in its discretion. The Bonus shall be paid within 90 days
after the end of each fiscal year of the Company and shall be paid on a pro rata
basis for any portion of any fiscal year of the Company that Executive renders
services to the Company hereunder.
2.4 SIGNING BONUS. Within five (5) business days of the
execution of this Agreement, the Company shall pay the Executive a signing bonus
of ten thousand dollars ($10,000).
2.5 AUTOMOBILE ALLOWANCE. During the term, the Company shall
provide the Executive with reasonable business and personal use of the Company's
car and driver.
2.6 HOUSING ALLOWANCE. During the term, the Company shall pay
the Executive $1,900 per month as a housing allowance .
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2.7 STOCK OPTIONS. Upon execution of this Agreement, the
Executive shall receive an option to purchase two hundred and fifty (250,000)
shares (the "Initial Options") of Common Stock of the Company ("Class A Common
Stock"). In addition, the Executive shall be eligible to receive an option to
purchase up to an aggregate of seven hundred and fifty thousand (750,000) shares
of such stock (the "Performance Options"), subject to the conditions set forth
in Subsection 2.7.1. The Initial Options and the Performance Options shall be
collectively referred to herein as the "Options".
2.7.1 PERFORMANCE OPTIONS.
(a) (i) If the average Closing Price (as defined below) of the
Class A Common Stock over a period of six consecutive months
is equal to at least $6.00 per share, the Executive shall
receive two hundred and fifty thousand (250,000) Performance
Options, (ii) if the average Closing Price of the Class A
Common Stock over a period of six consecutive months is equal
to at least $8.00 per share, the Executive shall receive two
hundred and fifty thousand (250,000) Performance Options, and
(iii) if the average Closing Price of the Class A Common Stock
over a period of six months is equal to at least $10.00 per
share, the Executive shall receive two hundred and fifty
thousand (250,000) Performance Options. If there is a Sale (as
defined below) of the Company and the Sale price is equal to
at least $6.00 per share, the Executive shall receive the
number of Performance Options set forth in (i) above if they
have not been previously awarded under (i) above; if the Sale
price is equal to at least $8.00 per share, the Executive
shall receive the number of Performance Options set forth in
(ii) above if they have not been previously awarded under (ii)
above; if the Sale price is equal to at least $10.00 per
share, the Executive shall receive the number of Performance
Options set for the in (iii) above if they have not been
previously awarded under (iii) above. In no event will the
Executive be entitled to receive more than seven hundred and
fifty thousand (750,000) Performance Options in the aggregate,
provided, however, that the Board of Directors of the Company,
may in its sole discretion elect to grant additional Options
to the Executive
(b) For purposes of this Agreement, the "Closing Price" on any day
means the reported closing sales price or, in the case no such
sale takes place, the average of the reported closing bid and
asked prices on the principal securities exchange on which
such Class A Common Stock is listed, or if such stock is not
listed on any such exchange, the highest closing sales price
or bid quotations for such stock on the National Association
of Securities Dealers, Inc. Automated Quotations system
("NASDAQ") or any system on which the Class A common stock is
traded.
(c) For purposes of this Agreement, "Sale" shall mean the
acquisition by any person, group of affiliated persons or
entity, of (a) all of the stock of the Company, (b) all
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or substantially all of the assets of the Company.
2.7.2 PRICE. The exercise price of the Initial
Options and the Performance Options shall be $4.00 per share.
2.7.3 VESTING TIME PERIOD: The Initial Options shall
be fully vested when granted. Any Performance Options which
have been awarded to the Executive shall vest in four equal
parts between the date of grant to November 1, 2002,
determined by dividing by four (4) the number of months (or
portion thereof) between the date of grant and November 1,
2002. For example, if the Executive is awarded two hundred and
fifty thousand (250,000) Performance Options on July 1, 2000,
such Performance Options shall vest twenty five percent (25%)
on each of February 1, 2001, September 1, 2001, April 1, 2002
and November 1, 2002. Upon a Change of Control of the Company,
any Performance Options which have been awarded prior to the
date of such Change of Control, but which are unvested as of
such date, shall vest as of such date.
2.7.4 TIME PERIOD TO EXERCISE OPTION: As long as the
Executive is employed with the Company, the Executive shall
have ten (10) years from the date of grant of each Option to
exercise such Option. Failure to exercise an Option within
said time period shall terminate such Option.
2.7.5 TERMINATION OF AGREEMENT. Upon termination of
Executive's employment with the Company for any reason the
Executive shall have ninety (90) days from the date of
termination to exercise any vested Options. Failure to
exercise within said time period shall terminate such Options.
Any Options which are, as of the date of termination not
vested, shall terminate as of such date.
2.8 TAXES. The Executive shall be responsible for the payment
of any and all state, local or Federal taxes which may be imposed on him with
respect to the non-cash compensation paid to the Executive under this Agreement.
3. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
3.1 EXPENSE REIMBURSEMENT. During the Term, the Company, upon
the submission of supporting documentation by the Executive, shall reimburse the
Executive for all direct, reasonable expenses actually paid or incurred by the
Executive in the course of and pursuant to the business of the Company,
including, but not limited to direct, reasonable expenses for travel,
entertainment and lodging outside of Dade County, Florida. The Company shall
also provide executive with a Company credit card to be used by Executive for
Company expenses.
3.2 OTHER BENEFITS. The Company shall obtain or shall continue
in force
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comprehensive major medical and hospitalization insurance coverages, including
dental coverages, either group or individual, for the Executive and his
immediate family, and shall provide such other benefits as are not less
favorable to the Executive than those currently in existence and described on
Schedule 1 hereto (collectively, the "Benefits"), which Policies the Company
shall keep in effect at its sole expense throughout the Term. Nothing paid to
the Executive under any plan or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of the Base Salary or
Bonus payable to the Executive pursuant to this Agreement. The Company shall
also provide annually, the executive with officers and directors liability
coverage.
3.3. WORKING FACILITIES. The Company shall furnish the
Executive with an office, a secretary and such other facilities and services
suitable to his position and adequate for the performance of his duties
hereunder.
3.4 VACATION. The Executive shall be entitled to four (4)
weeks paid vacation during each year of the Term (prorated for calendar year
1999 based on the Executive's employment during such year), provided that the
Company has approved the dates of such vacations, which approval shall not be
unreasonably withheld and provided, further, that the Executive shall not be
permitted to accrue more than twenty (20) calendar vacation days until such time
as the Executive has used up one (1) vacation day. Each time the Executive has
reached the maximum accrual level of twenty (20) days, the Executive shall not
be permitted to accrue further vacation time until another vacation day has been
used. The Executive shall also be entitled to take official Company holidays
with pay.
3.5 SICK DAYS. The Executive shall be entitled to six (6) days
paid sick days during each year of the Term.
4. TERMINATION.
4.1 TERMINATION FOR CAUSE. Notwithstanding anything contained
in this Agreement to the contrary, this Agreement may be terminated by the
Company for Cause. As used in this Agreement, "Cause" shall mean and include,
but shall not be limited to, any of the following events:
(i) fraud, misappropriation or embezzlement of funds or property by the
Executive involving the Company or any Affiliated Company;
(ii) the Executive's arrest or conviction in any jurisdiction for any
crime which constitutes a felony, or which constitutes a misdemeanor
that involves fraud, moral turpitude or material loss to the Company, or
any Affiliated Company, or their respective businesses or reputations;
provided, however, that if the Executive's employment is terminated
based on his arrest for any such crime and he is subsequently found to
be not guilty or all charges are dismissed for any such crime, his
termination shall be considered to have been made without cause and he
shall be entitled to the payments and benefits specified in Section 4.2
hereof;
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(iii) the Executive's gross misconduct in, or gross neglect of, the
performance of his duties and responsibilities hereunder, or the
Executive's violation of any reasonable specific directions of the
Board of Directors of the Company or its designee; or
(iv) the Executive's breach of any material provision of the Agreement,
or the Merger and Registration Rights Agreement, which breach continues
uncured for a period of fifteen (15) days after written notice thereof
is given to the Executive by the Company.
Any termination for Cause pursuant to this Section 4.1 shall
be made in writing to the Executive, which notice shall set forth in reasonable
detail all acts or omissions upon which the Company is relying for such
termination. Upon any termination pursuant to this Section 4.1, the Company
shall pay to the Executive any unpaid Base Salary accrued through the effective
date of termination specified in such notice. Except as provided above, the
Company shall have no further liability hereunder (other than for reimbursement
for business expenses incurred prior to the date of termination, subject,
however, to the provisions of Section 3.1).
4.2 TERMINATION WITHOUT CAUSE. Except as otherwise expressly
provided in Sections 4.3 and 4.4 hereof, in the event the Executive is
terminated other than for Cause pursuant to Section 4.1, the Company shall pay
to the Executive upon such termination an amount equal to the sum of: (i) any
unpaid Base Salary accrued through the effective date of termination, together
with any Bonus prorated through such date plus, and (ii) the greater of (a) the
product of the Base Salary then in effect multiplied by two (2), or (b) the net
present value of the Base Salary then in effect multiplied by the number of
years remaining in the Term and (iii) the Executive shall automatically be
vested with all stock options listed in Section 2.5 of this Agreement. Except as
provided above, the Company shall have no further liability hereunder (other
than for reimbursement for business expenses incurred by the Executive prior to
the date of termination, subject, however, to the provisions of Section 3.1). It
is agreed that the Executive shall have no duty to seek employment following any
termination hereunder or to otherwise mitigate any payments by the Company
pursuant to this Agreement. The Company shall be deemed to have terminated the
Executive's employment pursuant to this Section 4.2 if such employment is
terminated by the Executive voluntarily as a result of the occurrence of any of
the following events which is not consented to in writing by the Executive prior
to its occurrence and which is not cured by the Company within ten (10) days
after its receipt of written notice of the Executive's objection to the
occurrence: (a) Executive is assigned to any position, duties or
responsibilities that are significantly diminished when compared with the
position, duties or responsibilities of the Executive on the date of this
Agreement, including the Company's failure to allow the Executive the
development of the web site xxxxxxxxx.xxx or (b) the Executive is requested to
engage in conduct that is reasonably likely to result in a violation of law or
(c) the occurrence of a change of control of the Company. For purposes of this
subsection a "change in control" shall mean the acquisition by any person, group
of affiliated persons or entity of the ability, by contract or otherwise, to
elect a majority of the members of the Board or the election of the chairman of
the Board or the power, by contract or
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otherwise, to vote greater than fifty percent (50%) or more of the stock of the
Company or the sale by Xxxxxx Xxxxxxxxx and Xxxxx Xxxxxxxxx (in any manner which
they presently own ownership interest of the Company) of fifty percent (50%) or
more of their ownership interest in the Company.
4.3 DISABILITY. Notwithstanding anything contained in this
Agreement to the contrary, the Company, by written notice to the Executive,
shall at all times have the right to terminate this Agreement, and the
Executive's employment hereunder, if the Executive shall, as the result of
mental or physical incapacity, illness or disability, fail to perform his duties
and responsibilities provided for herein for a period of ninety (90) consecutive
days or more, or for shorter non-consecutive periods aggregating more than
ninety (90) days during any twenty four (24) month period over the term of the
Agreement. Upon any termination pursuant to this Section 4.3, the Company shall
pay to the Executive an amount equal to the sum of: any unpaid Base Salary
accrued through the effective date of termination, and the share of Bonus to
which he would have been entitled pro rated based on the percentage of the
current fiscal year that had been completed on the date of termination. Except
as provided above, the Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses incurred prior to the
date of termination, subject, however, to the provisions of Section 3.1).
4.4. DEATH. In the event of the death of the Executive during
the Term of his employment hereunder, the Company shall pay to the personal
representative of the estate of the deceased Executive an amount equal to the
sum of: any unpaid Base Salary accrued through the date of his death and the
share of Bonus to which he would have been entitled pro rated based on the
percentage of the current fiscal year that had been completed on the date of his
death. Except as provided above, the Company shall have no further liability
hereunder (other than for reimbursement for reasonable business expenses
incurred prior to the date of the Executive's death, subject, however, to the
provisions of Section 3.1).
5. RESTRICTIVE COVENANTS.
5.1 NON-COMPETITION. During the Term of this Agreement and for
a period of one (1) year from the termination of this Agreement the Executive
shall not be permitted to directly or indirectly engage in or have an interest
in, directly or indirectly, any sole proprietorship, partnership, corporation,
business or any other person or entity (collectively, the "Entities") (whether
as an employee, officer, director, partner, agent, security holder, creditor,
consultant or otherwise) that, directly or indirectly, engages in competition
with the Company in any Territory in which the Company and/or any subsidiary
conducts business during or within one (1) year following the Term. For purpose
of this Agreement, the "business" of the Company and its subsidiary shall mean
(a) the business of radio, in whatever means distributed, including, but not
limited to radio delivered via the internet, (b) the business of providing
information or entertainment via the internet, or (c) all businesses ancillary
to such businesses. For purposes of this Agreement, the "Territory" means the
area within seventy-five (75) miles of the transmitter for any (i) radio station
owned or operated by the Company or (ii) any radio station which the Company has
conducted due diligence, market
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research, otherwise investigated the acquisition or potential acquisition of,
during the employment period, provided however, with respect to (b) or (c)
above, "Territory" shall mean any state in which the Company, and/or any
subsidiary conducts business. Notwithstanding the foregoing, the performance by
the Executive of his duties to Hispanic Internet Holdings, Inc. Continucare
Corporation and Ivax Corporation as provided in Section 1.2 of this Agreement is
expressly permitted and shall not be deemed at any time to constitute a
violation by the Executive of this Agreement, including this Section 5.1,
provided that such performance of duties is relating solely to his position as a
director of such companies.
5.2 NONSOLICITATION OF EMPLOYEES. During the Term and for a
period of one (1) year following the termination of the Executive's employment
with the Company, the Executive shall not, directly or indirectly, for himself
or for any other person, firm, corporation, partnership, association or other
entity, attempt to employ or enter into any contractual arrangement with any
employee or former employee of the Company without the prior written consent of
the Company.
5.3 NO GRANT OF RIGHTS. The Executive will not grant any right
and shall not do any act or enter into any agreement or understanding
whatsoever, which may or will prevent, impair or hinder the Executive's full
performance of the Executive's obligations hereunder.
5.4 NO DISPARAGEMENT. The Executive shall not do any act, fail to
do any act or make any statement whatsoever which may or will impair, impugn,
denigrate, disparage or reflect negatively upon the name, reputation or business
interests of the Company or any Affiliated Company, or any of their respective
officers, directors or employees. For purposes of the Agreement, "Affiliated
Company" means, with respect to the Company, any other person that, directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with the Company.
5.5. FULL POWER AND AUTHORITY. The Executive represents and
warrants that he has full power and authority to execute, deliver and perform
the Agreement and that the execution, delivery and performance by the Executive
will not result in the breach of or default under any other agreement to which
the Executive is a party or is bound, including but not limited to any
employment agreement, or agreement to not compete with any other person or
entity.
6. COMPLIANCE WITH LAW.
6.1 FULL COMPLIANCE WITH LAW. The Executive agrees to perform the
Executive's duties in full compliance with all laws, rules and regulations of
any governmental authority applicable to the Company and its business or to any
Affiliated Company or its business (to the extent the Executive is engaged in
business on behalf of an Affiliated Company) or to the performance of the
Executive's duties pursuant to the Agreement.
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6.2 NO PAYMENT OR TRANSFER OF VALUE. The Executive affirms that
the Executive has not and agrees that the Executive will not, in connection with
the transactions contemplated by the Agreement or in connection with any other
business transactions involving the Company or any Affiliated Company, make or
promise to make any payment or transfer anything of value, directly or
indirectly, (i) to any governmental official or employee (including employees of
government corporations), (ii) to any political party, official of a political
party or candidate (or to an intermediary for payment to any of the foregoing),
(iii) to any officer director, employee, or representative of any actual or
potential customer of the Company or any Affiliated Company or (iv) to any other
person or entity if such payment or transfer would violate the laws of the
country in which made or the laws of the United States.
6.3 NO IMPROPER OR UNLAWFUL MEANS. The Executive will not make or
promise to make or accept any payments or transfers of value which have the
purpose or effect of public or commercial bribery, acceptance of or acquiescence
in extortion, kickbacks or other unlawful or improper means of obtaining
business for the Company or any Affiliated Company. This Section 6.3 shall not,
however, prohibit normal and customary business entertainment or the giving of
business mementos of nominal value.
7. COMPANY POLICIES. The Executive agrees to comply with any and all the
Company's policies, regulations and procedures as currently in effect and as
time to time amended.
8. PROPRIETARY INFORMATION.
8.1 PROPRIETARY INFORMATION. For purposes of this Agreement,
"Proprietary Information" will mean any information relating to the business,
operations or personnel of the Company (including but not limited to any
Affiliated Company for the purposes of the confidentiality provision of this
Agreement) that has not previously been publicly released by a duly authorized
representative of the Company and will include but will not be limited to such
information encompassed in all drawings, designs, plans, proposals, marketing
and sales plans, financial information, costs, pricing information, customer
information, personnel information and all methods, concepts, or ideas used in
and which have or may have a material importance to other business of the
Company.
8.2 NON-USE. The Executive will regard and to the best of his
ability and preserve as confidential, all Proprietary Information that has been
or may be obtained by the Executive during the Term. The Executive will neither
use for his benefit or purposes nor disclose to others any Proprietary
Information, either during the term of this Agreement or thereafter, except as
required by the conditions of the Executive's engagement hereunder. This
provision will not apply to Proprietary Information which has been voluntarily
disclosed to the public by the Company or has been independently developed and
disclosed by others who are not subject to any obligations of confidentiality to
the Company.
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8.3 COMPANY PROPERTY. The Executive will not remove from the
premises of the Company or elsewhere, except in the course of the proper
performance of his duties hereunder, any documents or objects containing or
reflecting any Proprietary Information or any other property of the Company. The
Executive recognizes that all such documents and objects, whether developed by
the Executive or by someone else, are the exclusive property of the Company.
Upon termination of this Agreement, the Executive will forthwith deliver to the
Company all Proprietary Information, including, without limitation, all
correspondence, research, accounts, records and any other documents or property
made or held by the Executive or under his control in relation to the business
or affairs of the Company, and no copy of any such Proprietary Information will
be retained by the Executive.
8.4 NON-DISCLOSURE. Under no circumstances and at no time, during
or after the term of this Agreement, will the Executive, directly or indirectly,
disclose, divulge, render or offer any knowledge or information with respect to
any Proprietary Information, except in the course of the proper performance of
his duties hereunder and he acknowledges and agrees that any and all such
information will be received by him in confidential capacity.
8.5 LEGAL PROCESS. If the Executive is required by legal process
to disclose any Proprietary Information, the Executive shall immediately notify
the Company prior to such disclosure and will take such steps as the Company may
request to protect the confidentiality of the Proprietary Information.
9. INVENTIONS.
9.1 For Purposes of this Agreement, "Invention" will mean (i) any
and all machines, apparatuses, compositions of matter, methods, know-how,
processes, designs, configurations, uses thereof, or writing of any kind,
discovered, conceived, developed, made or produced, or any improvements to them,
and will not be limited to the definition of any invention contained in the
United States patent laws; (ii) all matters subject to copyright protection
under trademark laws; and (iii) all matters subject to trademark protection
under trademark laws of the United States or those of any state of the United
States or under common law of any jurisdiction within the United States.
9.2 The Executive understands and agrees that all Inventions, or
patents, trademarks or copyrights relating thereto, which have or may have a
material importance to the business of the Company or any Affiliated Company
which are conceived or made by the Executive during the Term, either alone or
with others, are the sole and exclusive property of the Company, whether or not
they are conceived or made during regular working hours.
9.3 The Executive will immediately disclose to the Company any
and all improvements, discoveries, ideas and inventions (whether or not
patentable) heretofore made or conceived by the Executive while performing
services pursuant to this Agreement, or hereafter made
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or conceived at the request of or upon the suggestion of the Company whether or
not resulting from any work done in the course of his services for the Company
hereunder, and whether or not made or conceived during or outside of the hours
of performing services hereunder or upon or not upon any premises of the
Company.
9.4 The Executive hereby assigns and will hereafter assign to the
Company all present or future right, title and interest in and to all Inventions
referred to in Sections 9.2 and 9.3. The Executive will not disclose any such
Inventions to any third party without the written consent of the Company.
9.5 At any time and from time to time during and after the Term,
on the request of the Company, without further consideration the Executive will:
(i) execute specific documents of assignment in favor of the Company, or its
nominee, of any of the Inventions covered by this Agreement; (ii) execute all
papers and perform all acts the Company considers necessary or advisable for the
preparation, application, procurement, maintenance, enforcement, and defense of
patent applications and patents of the United States or other jurisdictions for
such Inventions, for the perfection or enforcement of any trademarks or
copyrights relating to such Inventions, and for the transfer of any interest the
Executive may have in such Inventions; and (iii) execute any and all papers and
documents which the Company considers to be necessary to vest sole right, title
and interest in the Company or its nominee in and to the above Inventions,
patent applications, patents, or any trademarks or copyrights or applications
therefore relating thereto. the Executive will execute all documents (including
those referred to above) and do all other acts which the Company considers to be
necessary to assist in the preservation of all the Company's interests in such
Inventions.
9.6 The Executive has identified on Schedule I attached hereto
a complete list of all Inventions or improvements which have been made or
conceived or first reduced to practice by him alone or in conjunction with
others prior to his employment by the Company or any of its affiliates and which
the Executive desires to exclude from the operation of this Agreement.
10. INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Executive of any of the covenants contained in
Section 5 of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Executive recognizes and hereby acknowledges that the Company
shall be entitled to an injunction from any court of competent jurisdiction
enjoining and restraining any violation of any or all of the covenants contained
in Section 5 of this Agreement by the Executive or any of his affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to any conflict
of law rule or provision which might result in the application of the laws of
another jurisdiction.
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12. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given when
delivered by hand or when deposited in the United States mail, by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company: Big City Radio, Inc.
c/o Metromedia Company
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Chairman
With a copy to: Metromedia Company
General Counsel
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
If to the Executive: Xxxxxxx X. Xxxxxxxxx
000 Xxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
or to such other address as either party hereto may from time to time give
notice of to the other in the aforesaid manner.
13. BENEFITS; BINDING EFFECT. This Agreement shall be for the benefit
of and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and, where applicable,
assigns. Notwithstanding the foregoing, neither party may assign its rights or
benefits or delegate any of its duties, hereunder without the prior written
consent of the other party hereto.
14. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by duration, geographic scope or
both, the otherwise invalid provision will be considered to be reduced to a
period or area which would cure such invalidity.
15. WAIVERS. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate nor be construed as
a waiver of any subsequent beach
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or violation.
16. DAMAGES. Nothing contained herein shall be construed to prevent the
Company or the Executive from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any term
or provision of this Agreement. In the event that either party hereto brings
suit for the collection of any damages resulting from, or the injunction of any
action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable court
costs and attorneys' fees of the other.
17. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
(other than the parties hereto and, in the case of Executive, his heirs,
personal representative(s) and/or legal representative) any rights or remedies
under or by reason of this Agreement.
18. SURVIVAL. The provisions of Sections 2.5, 5.2-5.5, 8 and 18 hereof
shall survive the termination of this Agreement upon the expiration of the Term
or pursuant to Section 4 hereof.
19. INDEMNIFICATION. In addition to any rights under other agreements,
the Company shall cause the Executive to be indemnified to the fullest extent
permitted by Delaware General Corporate Law, against all costs, charges and
expenses incurred or sustained by the Executive in connection with any action,
suit or proceeding to which the Executive may be made a party by reason of the
Executive being an officer, director or employee of the Employer or of any
subsidiary or affiliate of the Company to the extent required to make the
Executive whole in connection with any loss, cost or expense indemnifiable
thereunder. Provided, however, that the Company shall have no obligation to
indemnify the Executive (a) for any matter relating to, or arising out of (i)
his prior employment with Continucare Corporation, or any affiliate thereof his,
or his directorship with Ivax Corporation, or (ii) any breach by the Executive
of any representation or warranty made by the Executive under this Agreement, or
(b) any breach by the Executive of any representation or warranty made by the
Executive under the Merger and Registration Rights Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
BIG CITY RADIO, INC.,
a Delaware Corporation
By:
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Name:
Title:
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XXXXXXX X. XXXXXXXXX
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