EXHIBIT 10(n)
As of January 1, 1996
Xxxxxxx X. Xxxxxx
00 Xxxx 00xx Xxxxxx, Xxxxxxxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxxxx:
Viacom Inc. ("Viacom"), having an address at 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, agrees to employ you and you agree to accept such employment upon
the following terms and conditions:
l. Term. The term of your employment hereunder shall commence on January
1, 1996 and, unless terminated by Viacom or you pursuant to paragraph 8 hereof,
shall continue through and until December 31, 1998. The period from January 1,
1996 through December 31, 1998 shall hereinafter be referred to as the
"Employment Term" notwithstanding any earlier termination pursuant to paragraph
8.
2. Duties. During the Employment Term, you agree to devote your entire
business time, attention and energies to the business of Viacom and its
subsidiaries. You will be Senior Vice President, Human Resources and
Administration of Viacom and you agree to perform such duties, and such other
duties reasonable and consistent with such office as may be assigned to you from
time to time by the Deputy Chairman and Executive Vice President, General
Counsel and Chief Administrative Officer of Viacom or such other individual as
may be designated by the Chief Executive Officer of Viacom (the "CEO"). Your
principal place of business shall be at Viacom's headquarters in the New York
City metropolitan area.
3. Compensation.
(a) Salary: For all the services rendered by you in any capacity
hereunder, Viacom agrees to pay you the sum of Four Hundred Fifty Thousand
Dollars ($450,000) per annum ("Salary"), payable in accordance with Viacom's
then effective payroll practices. Your Salary will be increased on January 1,
1997 to Five Hundred Thousand Dollars ($500,000) and on January 1, 1998 to Five
Hundred Fifty Thousand Dollars ($550,000).
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January 1, 1996
Page 2
(b) Bonus Compensation: In addition to your Salary, you shall be
entitled to receive bonus compensation for each of the calendar years during the
Employment Term, determined and payable as follows ("Bonus"):
(i) Your Bonus for each of the calendar years during the
Employment Term will be based upon a measurement of
performance against objectives in accordance with the Viacom
Short-Term Incentive Plan, as the same may be amended from
time to time.
(ii) Your Target Bonus for each of the calendar years during the
Employment Term shall be 50% of Salary.
(iii) Your Bonus for any calendar year shall be payable by February
28 of the following year.
(c) Long-Term Incentive Plans: You will be eligible to participate
in one or more of Viacom's long-term incentive plans at a level appropriate to
your position as determined by the Viacom Board of Directors.
4. Benefits. You shall be entitled to participate in such vacation,
medical, dental and life insurance, 401(k), pension and other plans as Viacom
may have or establish from time to time and in which you would be entitled to
participate pursuant to the terms thereof. The foregoing, however, shall not be
construed to require Viacom to establish any such plans or to prevent the
modification or termination of such plans once established, and no such action
or failure thereof shall affect this Agreement. It is further understood and
agreed that all benefits you may be entitled to as an employee of Viacom shall
be based upon your Salary, as set forth in paragraph 3(a) hereof, and not upon
any bonus compensation due, payable or paid to you hereunder, except where the
benefit plan expressly provides otherwise.
5. Business Expenses. During the Employment Term, you shall be reimbursed
for such reasonable travel and other expenses incurred in the performance of
your duties hereunder as are customarily reimbursed to senior executives of
Viacom. You shall be entitled to a car allowance in accordance with Viacom's
policy.
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January 1, 1996
Page 3
6. Exclusive Employment, Confidential Information, Etc.
(a) Non-Competition. You agree that your employment hereunder is on
an exclusive basis, and that during the shorter of (x) the Employment Term and
(y) one (1) year after the termination of your employment pursuant to paragraph
8(b) or 8(c) hereof or eighteen (18) months after the termination of your
employment pursuant to paragraph 8(a) hereof (the "Non-Compete Period"), you
will not engage in any other business activity which is in conflict with your
duties and obligations hereunder. You agree that during the Non-Compete Period
you shall not directly or indirectly engage in or participate as an officer,
employee, director, agent of or consultant for any business directly competitive
with that of Viacom, nor shall you make any investments in any company or
business competing with Viacom; provided, however, that nothing herein shall
prevent you from investing as less than a one (1%) percent shareholder in the
securities of any company listed on a national securities exchange or quoted on
an automated quotation system.
(b) Confidential Information. You agree that you shall not, during
the Employment Term or at any time thereafter, use for your own purposes, or
disclose to or for the benefit of any third party, any trade secret or other
confidential information of Viacom or any of its affiliates (except as may be
required by law or in the performance of your duties hereunder consistent with
Viacom's policies) and that you will comply with any confidentiality obligations
of Viacom to a third party, whether under agreement or otherwise.
Notwithstanding the foregoing, confidential information shall be deemed not to
include information which (i) is or becomes generally available to the public
other than as a result of a disclosure by you or any other person who directly
or indirectly receives such information from you or at your direction or (ii) is
or becomes available to you on a non-confidential basis from a source which is
entitled to disclose it to you.
(c) No Employee Solicitation. You agree that, during the Employment
Term and for one (1) year thereafter, you shall not, directly or indirectly,
engage, employ, or solicit the employment of any person who is then or has been
within six (6) months prior thereto, an employee of Viacom or any of Viacom's
affiliates.
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January 1, 1996
Page 4
(d) Viacom Ownership. The results and proceeds of your services
hereunder, including, without limitation, any works of authorship resulting from
your services during your employment with Viacom and/or any of its affiliates
and any works in progress, shall be works-made-for-hire and Viacom shall be
deemed the sole owner throughout the universe of any and all rights of
whatsoever nature therein, whether or not now or hereafter known, existing,
contemplated, recognized or developed, with the right to use the same in
perpetuity in any manner Viacom determines in its sole discretion without any
further payment to you whatsoever. If, for any reason, any of such results and
proceeds shall not legally be a work-for-hire and/or there are any rights which
do not accrue to Viacom under the preceding sentence, then you hereby
irrevocably assign and agree to assign any and all of your right, title and
interest thereto, including, without limitation, any and all copyrights,
patents, trade secrets, trademarks and/or other rights of whatsoever nature
therein, whether or not now or hereafter known, existing, contemplated,
recognized or developed to Viacom, and Viacom shall have the right to use the
same in perpetuity throughout the universe in any manner Viacom determines
without any further payment to you whatsoever. You shall, from time to time, as
may be requested by Viacom, do any and all things which Viacom may deem useful
or desirable to establish or document Viacom's exclusive ownership of any and
all rights in any such results and proceeds, including, without limitation, the
execution of appropriate copyright and/or patent applications or assignments. To
the extent you have any rights in the results and proceeds of your services that
cannot be assigned in the manner described above, you unconditionally and
irrevocably waive the enforcement of such rights. This paragraph 6(d) is subject
to, and shall not be deemed to limit, restrict, or constitute any waiver by
Viacom of any rights of ownership to which Viacom may be entitled by operation
of law by virtue of Viacom or any of its affiliates being your employer.
(e) Litigation. You agree that, during the Employment Term, for one
(1) year thereafter and, if longer, during the pendancy of any litigation or
other proceeding, (i) you shall not communicate with anyone (other than your own
attorneys and tax advisors and, except to the extent necessary in the
performance of your duties hereunder) with respect to the facts or subject
matter of any pending or potential litigation, or regulatory or administrative
proceeding involving any of Viacom's affiliates, other than any litigation or
other proceeding in which you are a party-in-opposition, without giving prior
notice to Viacom or Viacom's counsel, and (ii) in the event that any other party
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January 1, 1996
Page 5
attempts to obtain information or documents from you with respect to matters
possibly related to such litigation or other proceeding, you shall promptly so
notify Viacom's counsel.
(f) No Right to Give Interviews or Write Books, Articles, Etc.
During the Employment Term, except as authorized by Viacom, you shall not (i)
give any interviews or speeches, or (ii) prepare or assist any person or entity
in the preparation of any books, articles, television or motion picture
productions or other creations, in either case, concerning Viacom or any of
Viacom's affiliates or any of their officers, directors, agents, employees,
suppliers or customers.
(g) Return of Property. All documents, data, recordings, or other
property, whether tangible or intangible, including all information stored in
electronic form, obtained or prepared by or for you and utilized by you in the
course of your employment with Viacom or any of its affiliates shall remain the
exclusive property of Viacom. In the event of the termination of your employment
for any reason, Viacom reserves the right, to the extent permitted by law and in
addition to any other remedy Viacom may have, to deduct from any monies
otherwise payable to you the following: (i) the full amount of any debt you owe
to Viacom or any of its affiliates at the time of or subsequent to the
termination of your employment with Viacom, and (ii) the value of the Viacom
property which you retain in your possession after the termination of your
employment with Viacom. In the event that the law of any state or other
jurisdiction requires the consent of an employee for such deductions, this
Agreement shall serve as such consent.
(h) Non-Disparagement. You agree that you shall not, during the
Employment Term and for one (1) year thereafter, in any communications with any
customer or client of Viacom or any of Viacom's affiliates, criticize, ridicule
or make any statement which disparages or is derogatory of Viacom or Viacom's
affiliates or any of their officers, directors, agents or employees.
(i) Injunctive Relief. Viacom has entered into this Agreement in
order to obtain the benefit of your unique skills, talent, and experience. You
acknowledge and agree that any violation of paragraphs 6(a) through (h) hereof
will result in irreparable damage to Viacom, and, accordingly, Viacom may obtain
injunctive and other equitable relief for any breach or
Xxxxxxx X. Xxxxxx
January 1, 1996
Page 6
threatened breach of such paragraphs, in addition to any other remedies
available to Viacom.
(j) Survival; Modification of Terms. Your obligations under
paragraphs 6(a) through (i) hereof shall remain in full force and effect for the
entire period provided therein notwithstanding the termination of the Employment
Term pursuant to paragraph 8 hereof or otherwise; provided, however, that your
obligations under paragraph 6(a) shall cease if you terminate your employment
for "Good Reason" or Viacom terminates your employment without "cause" (as such
terms are defined in paragraph 8) and you notify Viacom in writing that you have
elected to waive your right to receive, or to continue to receive, payments and
benefits pursuant to clauses (i), (ii), (iii), (iv) and (v) of paragraph 8(d).
You and Viacom agree that the restrictions and remedies contained in paragraphs
6(a) through (i) are reasonable and that it is your intention and the intention
of Viacom that such restrictions and remedies shall be enforceable to the
fullest extent permissible by law. If it shall be found by a court of competent
jurisdiction that any such restriction or remedy is unenforceable but would be
enforceable if some part thereof were deleted or the period or area of
application reduced, then such restriction or remedy shall apply with such
modification as shall be necessary to make it enforceable.
7. Incapacity. In the event you become totally medically disabled and
cannot substantially perform your duties at any time during the Employment Term,
the CEO, at any time after such disability has continued for 30 consecutive
days, may determine that Viacom requires such duties and responsibilities be
performed by another executive. In the event you become disabled, you will first
receive benefits under Viacom's short-term disability program for the first 26
weeks of consecutive absence. Thereafter, you will be eligible to receive
benefits under Viacom's Long-Term Disability ("LTD") program in accordance with
its terms. Upon receipt of benefits under the LTD program, you will also be
entitled to receive a pro-rated Target Bonus for the calendar year in which such
benefits commence.
8. Termination.
(a) Termination for Cause. Viacom may, at its option, terminate this
Agreement forthwith for "cause", and Viacom shall thereafter have no further
obligations under this Agreement, including, without limitation, any obligation
to pay Salary or Bonus or provide benefits under this Agreement. For purposes of
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January 1, 1996
Page 7
this Agreement, termination of this Agreement for "cause" shall mean termination
for embezzlement, fraud or other conduct which would constitute a felony,
conviction of a felony, or willful unauthorized disclosure of confidential
information, or if you at any time materially breach this Agreement (including,
without limitation, your failure, neglect of or refusal to substantially perform
your obligations hereunder as set forth in paragraphs 2 and 11 hereof), except
in the event of your disability as set forth in paragraph 7. Anything herein to
the contrary notwithstanding, Viacom will give you written notice prior to
terminating this Agreement for your material breach setting forth the exact
nature of any alleged breach and the conduct required to cure such breach. You
shall have ten (10) business days from the giving of such notice within which to
cure.
(b) Good Reason Termination. You may terminate your employment
hereunder for "Good Reason" at any time during the Employment Term by written
notice to Viacom not more than thirty (30) days after the occurrence of the
event constituting "Good Reason". Such notice shall state an effective date no
later than ten (10) business days after the date it is given. Good Reason shall
mean, without your prior written consent, other than in connection with the
termination of your employment for "cause" (as defined above) or in connection
with your permanent disability, the assignment to you by Viacom of duties
substantially inconsistent with your positions, duties, responsibilities, titles
or offices, the withdrawal of a material part of your responsibilities as set
forth in paragraph 2, or the material breach by Viacom of its material
obligations hereunder.
(c) Termination Without Cause. Viacom may terminate your employment
hereunder without "cause" (as defined above) at any time during the Employment
Term by written notice to you.
(d) Termination Payments, Etc. In the event that your employment
terminates pursuant to paragraph 8(b) or 8(c) hereof, you shall be entitled to
receive, subject to applicable withholding taxes:
(i) your Salary as provided in paragraph 3(a) until the end of the
Employment Term, payable in accordance with Viacom's then
effective payroll practices;
(ii) bonus compensation for each calendar year during the
Employment Term equal to your Target Bonus as set forth in
paragraph 3(b);
Xxxxxxx X. Xxxxxx
January 1, 1996
Page 8
(iii) your car allowance as provided in paragraph 5 until the end of
the Employment Term, payable in accordance with Viacom's then
effective payroll practices;
(iv) medical and dental insurance coverage under COBRA until the
end of the Employment Term or, if earlier, the date on which
you become eligible for medical and dental coverage from a
third party employer; during this period, Viacom will pay an
amount equal to the applicable COBRA premiums (or such other
amounts as may be required by applicable law) (which amount
will be included in your income for tax purposes to the extent
required by applicable law); at the end of such period, you
may elect to continue your medical and dental insurance
coverage at your own expense for the balance, if any, of the
period required by law;
(v) life insurance coverage until the end of the Employment Term
(the amount of Salary covered by such insurance to be reduced
by the amount of any salary payable to you by a third party);
and
(vi) the following with respect to grants to you under Viacom's
1989 and 1994 Long-Term Management Incentive Plans and any
successor plans (collectively, the "LTMIP"):
(x) stock options granted to you under the LTMIP which are
exercisable on or prior to the date of the termination
of your employment under paragraph 8(b) or 8(c) that
would have vested and become exercisable on or before
the last day of the Employment Term will be exercisable
until six (6) months after the date of such termination
or, if earlier, the expiration date of the stock
options; and
(y) payments on the phantom shares granted to you under the
LTMIP in 1989 will be calculated in the manner and made
at such times as provided in the LTMIP;
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January 1, 1996
Page 9
provided, however, you shall be required to mitigate the amount of any payment
provided for in (i), (ii) and (iii) of this paragraph 8(d) by seeking other
employment or otherwise, and the amount of any such payment provided for in (i),
(ii) and (iii) shall be reduced by any compensation earned by you from a third
person except that mitigation shall not be required for twelve (12) months after
the termination of your employment or for the period commencing with the
termination of your employment and ending on the last day of the Employment
Term, whichever is shorter. The payments provided for in (i) above are in lieu
of any severance or income continuation or protection under any Viacom plan that
may now or hereafter exist. The payments and benefits to be provided pursuant to
this paragraph 8(d) shall constitute liquidated damages, and shall be deemed to
satisfy and be in full and final settlement of all obligations of Viacom to you
under this Agreement.
(e) Termination of Benefits. Notwithstanding anything in this Agreement to
the contrary (except as otherwise provided in paragraph 8(d) with respect to
medical, dental and life insurance), coverage under all Viacom benefit plans and
programs (including, without limitation, vacation, 401(k) and excess 401(k)
plans, pension and excess pension plans, LTD, car insurance and accidental death
and dismemberment and business travel and accident insurance) will terminate
upon the termination of your employment except to the extent otherwise expressly
provided in such plans or programs.
(f) Non-Renewal Notice, Etc. Viacom shall notify you in writing in the
event that Viacom elects not to extend or renew this Agreement. If Viacom gives
you such notice less than twelve (12) months before the end of the Employment
Term, or your employment terminates pursuant to paragraph 8(b) or 8(c) hereof
during the final twelve (12) months of the Employment Term, you shall be
entitled to receive Salary as provided in paragraph 3(a), payable in accordance
with Viacom's then effective payroll practices, subject to applicable
withholding requirements, for the period commencing after the end of the
Employment Term which, when added to the portion of the Employment Term, if any,
remaining when the notice is given or the termination occurs, equals twelve (12)
months; provided, however, you shall be required to mitigate the amount of any
payment pursuant to this paragraph 8(f) by seeking other employment or
otherwise, and the amount of any such payment shall be reduced by any
compensation earned by you from a third person. The payments provided for in
this paragraph 8(f) are in lieu of any severance or income
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January 1, 1996
Page 10
continuation or protection under any Viacom plan that may now or hereafter
exist.
9. Death. If you die prior to the end of the Employment Term, your
beneficiary or estate shall be entitled to receive your Salary up to the date on
which the death occurs and a pro-rated Target Bonus.
10. Section 317 and 507 of the Federal Communications Act. You represent
that you have not accepted or given nor will you accept or give, directly or
indirectly, any money, services or other valuable consideration from or to
anyone other than Viacom for the inclusion of any matter as part of any film,
television program or other production produced, distributed and/or developed by
Viacom and/or any of its affiliates.
11. Equal Opportunity Employer. You acknowledge that Viacom is an equal
opportunity employer. You agree that you will comply with Viacom policies
regarding employment practices and with applicable federal, state and local laws
prohibiting discrimination on the basis of race, color, creed, national origin,
age, sex or disability.
12. Indemnification.
(a) Viacom shall indemnify and hold you harmless, to the maximum
extent permitted by law and by the Restated Certificate of Incorporation and/or
the Bylaws of Viacom, against judgments, fines, amounts paid in settlement of
and reasonable expenses incurred by you in connection with the defense of any
action or proceeding (or any appeal therefrom) in which you are a party by
reason of your position as Senior Vice President, Human Resources and
Administration of Viacom or by reason of any prior positions held by you with
Viacom, or for any acts or omissions made by you in good faith in the
performance of any of your duties as an officer of Viacom.
(b) To the extent that Viacom maintains officers' and directors'
liability insurance, you will be covered under such policy.
13. Notices. All notices required to be given hereunder shall be given in
writing, by personal delivery or by mail at the respective addresses of the
parties hereto set forth above, or at such other address as may be designated in
writing by either party, and in the case of Viacom, to the attention of the
General
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January 1, 1996
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Counsel of Viacom. Any notice given by mail shall be deemed to have been given
three days following such mailing.
14. Assignment. This is an Agreement for the performance of personal
services by you and may not be assigned by you or Viacom except that Viacom may
assign this Agreement to any affiliate of or any successor in interest to
Viacom.
15. New York Law, Etc. This Agreement and all matters or issues collateral
thereto shall be governed by the laws of the State of New York applicable to
contracts entered into and performed entirely therein. Any action to enforce
this Agreement shall be brought in the state or federal courts located in the
City of New York.
16. No Implied Contract. Nothing contained in this Agreement shall be
construed to impose any obligation on Viacom to renew this Agreement or any
portion thereof. The parties intend to be bound only upon execution of a written
agreement and no negotiation, exchange of draft or partial performance shall be
deemed to imply an agreement. Neither the continuation of employment nor any
other conduct shall be deemed to imply a continuing agreement upon the
expiration of this Agreement.
17. Entire Understanding. This Agreement contains the entire understanding
of the parties hereto relating to the subject matter herein contained, and can
be changed only by a writing signed by both parties hereto.
18. Void Provisions. If any provision of this Agreement, as applied to
either party or to any circumstances, shall be adjudged by a court to be void or
unenforceable, the same shall be deemed stricken from this Agreement and shall
in no way affect any other provision of this Agreement or the validity or
enforceability of this Agreement.
19. Supersedes Previous Agreement. This Agreement supersedes and cancels
all prior agreements relating to your employment by Viacom or any of its
affiliates, including, without limitation, your employment agreement with
Viacom, dated as of April 1, 1994.
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January 1, 1996
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If the foregoing correctly sets forth our understanding, please sign one
copy of this letter and return it to the undersigned, whereupon this letter
shall constitute a binding agreement between us.
Very truly yours,
VIACOM INC.
By: /S/ XXXXXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Deputy Chairman and
Executive Vice President, General
Counsel and Chief Administrative
Officer
ACCEPTED AND AGREED:
/S/ XXXXXXX X. XXXXXX
------------------------------
Xxxxxxx X. Xxxxxx
March 31, 1998
Xxxxxxx X. Xxxxxx
00 Xxxx 00xx Xxxxxx, Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxx:
Reference is made to that certain employment agreement between you and
Viacom Inc. ("Viacom"), dated as of January 1, 1996 (your "Employment
Agreement"). All defined terms used without definitions shall have the meanings
provided in your Employment Agreement.
This letter, when fully executed below, shall amend your Employment
Agreement as follows:
1. TERM. Paragraph 1 shall be amended to change the date representing
the end of the Employment Term in the first and second sentences from
"December 31, 1998" to "December 31, 2000".
2. COMPENSATION / SALARY. Paragraph 3(a) shall be amended to replace the
second sentence with the following sentence:
"Your Salary will be increased on January 1, 1999 to Six Hundred
Thousand Dollars ($600,000) per annum and on January 1, 2000 to Six
Hundred Fifty Thousand Dollars ($650,000) per annum."
3. TERMINATION / TERMINATION FOR CAUSE. Paragraph 8(a) shall be amended
to replace the last sentence with the following:
"Except for a breach which cannot by its nature be cured, you shall
have ten (10) business days from the giving of such notice within
which to cure."
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March 31, 1998
Page 2
4. TERMINATION / GOOD REASON TERMINATION. Paragraph 8(b) shall be
amended to replace the second sentence with the following sentences:
"Such notice shall state an effective date no earlier than thirty (30)
business days after the date it is given. Viacom shall have ten (10)
business days from the giving of such notice within which to cure."
Except as herein amended, all other terms and conditions of your Employment
Agreement shall remain the same and your Employment Agreement as herein amended
shall remain in full force and effect.
If the foregoing correctly sets forth our understanding, please sign one
(1) copy of this letter and return it to the undersigned, whereupon this letter
shall constitute a binding amendment to your Employment Agreement.
Very truly yours,
VIACOM INC.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Deputy Chairman and
Executive Vice President,
ACCEPTED AND AGREED: General Counsel and
Chief Administrative Officer
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx
