Exhibit 10.38
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT dated June 14, 2001 (this "Agreement") is
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made to be effective as of February 1, 2001, by and among NEXTMEDIA OUTDOOR,
INC., a Delaware corporation ("Employer"), NEXTMEDIA GROUP, INC., a Delaware
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corporation ("Group"), and XXXX XXXXXXX ("Executive").
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WHEREAS, Employer desires to employ Executive, and Executive desires
to be employed by Employer, in accordance with the terms and conditions herein
provided.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Employer and Executive agree as
follows:
1. Employment and Employment Period. During the period specified in this
Section 1, Employer shall employ Executive, and Executive shall be employed by
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Employer, on the terms and subject to the conditions set forth herein. The term
of Executive's employment under this Agreement shall commence on February 1,
2001 (the "Effective Date") and, subject to prior termination as provided in
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Section 6 below, shall continue through the third anniversary of the Effective
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Date (including any extensions provided for herein, the "Employment Period");
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provided, however, that the Employment Period automatically shall be extended
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for up to two (2) successive terms of one (1) year each unless either party
advises the other, at least one hundred twenty (120) days prior to the end of
the initial term or the first annual extension, as the case may be, that such
party will not agree to extend this Agreement as herein provided.
2. Duties, Responsibilities, Reporting, No Services for Others.
(a) At all times during the Employment Period, Executive: (i) shall
serve as an Executive Vice President of Employer and as the Chief Operating
Officer of Employer's traditional outdoor division or in such other
comparable management position or positions as may be designated by the
Board of Directors of Employer (the Board of Directors of Employer, or any
successor equivalent governing body of Employer, is herein referred to as
the "Board of Directors") from time to time, (ii) shall perform duties in
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furtherance of the business of Employer, as may have been determined to be
appropriate by the Chief Executive Officer of Employer, including,
specifically, duties relating to the day-to-day operations of Employer's
traditional outdoor division, (iii) except as set forth in Section 2(b)
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hereof, shall devote his entire business time, energy, talent, and best
efforts to the faithful and efficient performance of his duties as an
Executive Vice President of Employer and as the Chief Operating Officer of
Employer's traditional outdoor division and (iv) shall report directly to
the Chief Executive Officer of Employer or his designees.
(b) Executive shall not, at any time during the Employment Period,
directly or indirectly, render any business, commercial, or professional
services to any other person, firm, or organization (other than to Employer
and its Affiliates) for compensation without the prior approval of the
Board of Directors. Nothing in this Agreement shall preclude Executive from
devoting reasonable periods of time and effort to charitable and
community activities or to the management of Executive's personal
investment assets; provided, that such activities do not interfere in any
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material respect with the performance by Executive of his duties hereunder.
3. Compensation.
(a) Base Salary. During the Employment Period, Employer shall pay to
Executive an annual base salary (the "Base Salary") in regular equal
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installments in accordance with Employer's usual payroll practice.
Executive's Base Salary for the first contract year shall be One Hundred
Sixty Thousand Dollars ($160,000), which Base Salary shall be subject to
appropriate increase each year thereafter at the discretion of the
compensation committee of the board of directors of Group (the
"Compensation Committee"). Any annual increase in Executive's Base Salary
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shall be based upon increases in the cash flow generated by Employer's
traditional outdoor division.
(b) Annual Bonus. Executive shall be entitled to an annual bonus for
each fiscal year in which Executive is employed hereunder in an amount
equal to a percentage of Executive's Base Salary for such fiscal year as
may be determined by the Compensation Committee in its reasonable
discretion based upon the recommendation of the Chief Executive Officer of
Employer. The parties to this Agreement currently anticipate that the
annual bonus payable pursuant to this Section 3(b) shall not be less than
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forty percent (40%) of the Base Salary then due and payable to Executive;
however, the parties acknowledge that no bonus amount is guaranteed. Any
bonus determined to be payable under this Section 3(b) shall be paid by
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Employer to Executive as soon as practicable following the completion of
Employer's annual audit.
(c) Class B Interests. As soon as reasonably practicable following the
execution of this Agreement, (i) NextMedia Investors LLC, a Delaware
limited liability company ("Investors LLC"), shall issue to Executive an
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aggregate of 1.3691 Class B membership interests in Investors LLC and (ii)
Executive shall become a party to the Second Amended and Restated Limited
Liability Company Agreement of Investors LLC dated as of June , 2001, and
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(B) acknowledge that Executive is not entitled to receive any additional
Class B membership interests that may be reallocated among the existing
Class B members or issued by Investors LLC. Executive acknowledges and
agrees that Executive shall not be entitled to receive any additional Class
B membership interests that may be issued by Investors to the Class B
Members existing as of the date hereof.
(d) Withholdings. Employer shall, in accordance with applicable law,
deduct from the Base Salary, any bonus amount and any other cash amounts
payable by Employer under the provisions of this Agreement to Executive,
or, if applicable, to Executive's estate, legal representatives or other
beneficiaries designated in writing by Executive, all social security
taxes, all federal, state and municipal taxes and all other charges and
deductions that now or hereafter are required by law to be charges on the
compensation of Executive or charges on cash benefits payable by Employer
hereunder to Executive's estate, legal representatives or other
beneficiaries.
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4. Retirement and Employee Welfare Benefits. During the Employment Period,
Executive shall be entitled to participate in, and shall be entitled to receive
benefits in accordance with the terms of, all retirement and welfare benefits
plans, practices, policies, and programs that are made available by Group or
Employer to other senior executives of Employer, which, at a minimum, shall
include the following:
(a) Life Insurance. Group shall provide to Executive, and shall keep
in full force and effect at all times during the Employment Period, without
cost to Executive, a term life insurance policy with a death benefit equal
to not more than Six Hundred Forty Thousand Dollars ($640,000), subject to
Executive's insurability at standard group rates. Executive shall be solely
responsible for the payment of any federal and/or state taxes that may be
levied as a result of Group furnishing such life insurance policy, and
Executive, his estate and/or heirs hereby agree to indemnify and hold
harmless Employer and Group from and against any and all taxes that may be
payable in connection with such life insurance policy. Executive shall have
the privilege of designating the beneficiary thereof and may change the
beneficiary thereof by providing written notice to Group and shall have
such other rights of ownership provided by such life insurance policy,
subject to the rules and regulations of the issuing insurance company.
Executive shall have the right to assign such life insurance policy to
Executive's spouse or issue, or to a trust primarily for the benefit of
Executive's spouse and/or issue. Upon the termination of this Agreement for
any reason, Group shall assign such life insurance policy to Executive,
without cost to Executive, provided that Executive shall pay all premiums
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and other costs relating to such life insurance policy from and after the
date of such assignment.
(b) Medical Benefits. Group shall provide to Executive and his
immediate family, to the extent eligible and at all times during the
Employment Period, major medical coverage and disability insurance in
accordance with Group's Executive Medical Benefit Plan. If Group is
notified that Executive does not qualify for such disability insurance at
standard rates, Group will so advise Executive within five (5) days after
Group has received such notification of non-qualification.
(c) Reimbursement for Business Expenses. Employer shall reimburse
Executive promptly upon production by Employee of reasonably detailed
accounts, receipts, vouchers or other reasonable evidence of payment by
Executive, for all ordinary, reasonable and necessary travel, entertainment
and other expenses as shall be incurred by him in the performance of his
duties hereunder.
(d) Automobile. During the Employment Period, Employer shall provide
Executive with, or pay or reimburse Executive for his lease or purchase of,
an automobile, the aggregate expense of which shall not exceed $10,000 per
annum.
(e) Vacation. During each complete twelve (12) month period of the
Employment Period, Executive shall be entitled to paid vacation time at the
rate of not more than four (4) weeks per calendar year, provided that such
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vacation shall be taken at such time or times as Executive may determine in
such a manner as to avoid undue disruption to the business of Employer;
and, provided further, that any accrued but unused vacation at the end of
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any calendar year shall expire without consideration to
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Executive. Executive shall also be entitled to such personal leave, holiday
leave and sick leave as may be permitted pursuant to the general practice
and policies of Employer.
(f) Club Membership. During the Employment Period, Employer shall
reimburse Executive for membership dues, up to a maximum of Five Thousand
Dollars ($5,000) per calendar year, for a tennis, fitness, business lunch
club or similar facility to be used by Executive for business purposes.
Employer shall have the right to approve the club membership, which
approval shall not be unreasonably withheld.
(g) Stock or other Equity Plans. Upon the consummation of an initial
public offering of the stock of Group, Executive shall be entitled to
participate in such stock award, stock option or other similar equity plans
as shall be determined by the board of directors of Group to be fair,
appropriate and customary for an employee in the position of Executive, in
each case, subject to the provisions thereof.
5. Effect of Disability While in Employ of Employer. If, during the
Employment Period, Executive becomes disabled, by reason of physical or mental
impairment, disability or infirmity to such an extent that he is unable to
perform his duties under this Agreement for more than ninety (90) working days
in any twelve (12) consecutive month period, as determined in good faith by the
Board of Directors, in its sole discretion ("Disability" or "Disabled"):
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(a) Employer may relieve Executive of his duties under this Agreement
for as long as Executive is so Disabled.
(b) Employer shall pay to Executive, net of the offset referred to in
the last sentence of this Section 5(b), all Base Salary, if any, to which
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Executive would have been entitled under this Agreement had Executive
continued to be actively employed by Employer to the earliest of (i) the
first date on which he is no longer so Disabled, (ii) the date on which his
employment is terminated by Employer due to Disability pursuant to Section
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6(a), (iii) the date of his death, or (iv) the end of the Employment Period
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due to any reason other than termination by Employer due to Disability
pursuant to Section 6(a) or death. Any payment referred to in this Section
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5(b) shall be made at the same time as that payment would have been made if
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Executive were not Disabled. Payments under this Section 5(b) for any
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period shall be offset, dollar for dollar, by any disability benefits
(other than benefits payable pursuant to any disability insurance policy
all of the premiums for which were paid by Executive and not Employer) for
that period that are received by Executive.
(c) Except as provided in this Section 5, Employer shall have no
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further obligations to Executive for Base Salary or any bonus for any
period during which Executive is so Disabled.
(d) Executive agrees to submit such medical evidence regarding
Executive's Disability as may be reasonably requested by the Chief
Executive Officer of Employer.
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6. Termination.
(a) Death or Disability. Executive's employment hereunder will
terminate immediately upon Executive's death. Employer may terminate
Executive's employment hereunder as of the effective date specified in
Employer's notice of termination if Executive is Disabled, which effective
date shall not be earlier than the ninety-first (91st) working day
(excluding vacation days) following the commencement of Executive's
Disability, provided, that such notice shall be delivered to Executive not
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later than ten (10) days from the effective date of termination specified
in such notice.
(b) By Employer for Cause. Employer may terminate Executive's
employment under this Agreement for "Cause" (and Executive's employment
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will be deemed to have been terminated for "Cause") if, as of the date of
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termination, any of the following circumstances have occurred:
(i) Except as otherwise permitted by Section 2(b) hereof,
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Executive has refused to perform his duties as an employee of Employer
or has failed to devote his entire business time, energy, talent and
best efforts to the performance of his duties under this Agreement in
any material respect;
(ii) Executive has been convicted of, or has entered a plea of
nolo contendere to, a felony;
(iii) Executive has engaged in any fraudulent or dishonest
conduct or acts in the course of his employment with Employer in
connection with Employer or any of its Affiliates;
(iv) Executive has breached any of his obligations hereunder in
any material respect;
(v) Executive has been grossly negligent in the performance of
his duties under this Agreement;
(vi) Executive has engaged in the illegal use of drugs or suffers
from drug dependence or habitual insobriety;
(vii) Employer or Group materially breaches any financial
covenant contained in any of its contractual obligations and such
breach is not cured or waived prior to the expiration of any
applicable grace or cure periods;
(viii) Employer or Group shall fail to pay the principal of, or
interest on, or to make any required payment (regardless of amount) in
connection with any of its indebtedness when and as the same may
become due and payable and such failure is not cured or waived prior
to the expiration of any applicable grace or cure periods;
(ix) Any event or circumstance shall have occurred the effect of
which would permit the holder or holders (or a trustee on its or their
behalf) of any
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indebtedness of Employer or Group to cause or require such
indebtedness to become due or to be redeemed or repurchased prior to
its stated maturity (or to cause or require an offer to be made to
effect such redemption or repurchase) and such event or circumstance
is not cured or waived prior to the expiration of any applicable grace
or cure periods; or
(x) Employer, Group and their subsidiaries, if any, taken
together, shall have failed to meet at least ninety percent (90%) of
their budget in any given fiscal year, as such budget was recommended
and approved in accordance with relevant corporate policy.
No termination of Executive pursuant to any of clauses (i), (iv), (v), or (vi)
above will be effective unless and until Executive has first been given written
notice of the conduct or circumstance purported to constitute "Cause" thereunder
and, unless such conduct or circumstance is not reasonably susceptible of cure
or such conduct or circumstance has already been the subject of notice hereunder
and cured by Executive previously, Executive has failed to cure that conduct or
omission within thirty (30) days following receipt of that notice by Executive.
Any termination under any of clauses (ii), (iii), (vii), (viii), (ix) or (x) or
any termination which is subject to the exceptions provided for in the
immediately preceding sentence, shall be effective on such current or
prospective date as may be specified by Employer when giving written notice of
the termination.
(c) By Employer Without Cause. Subject to Section 7(c) hereof,
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Employer may terminate Executive's employment hereunder without Cause upon
written notice from the Chief Executive Officer of Employer to Executive.
(d) By Executive for Good Reason. Executive may terminate his
employment hereunder for "Good Reason" at any time if, as of the date of
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termination, any of the following circumstances have occurred:
(i) Failure by Employer to pay Executive the Base Salary or any
annual bonus when due and payable under this Agreement, or a reduction
in the Base Salary by Employer, other than a reduction pursuant to any
retirement or welfare benefit plan;
(ii) Failure by Employer or Group to provide Executive with
employee welfare benefits substantially in accordance with Section 4
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hereof;
(iii) Executive's position, duties and scope of responsibilities
as described in Section 2(a) hereof are materially reduced from those
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in effect on the Effective Date other than for Cause without the
consent of Executive (it being understood that the reassignment of
Executive's functions, duties or responsibilities other than those
customarily performed by an executive vice president and a chief
executive officer of a division of a business of comparable size and
complexity to one or more other persons who report directly or
indirectly to Executive shall not be considered a reduction of
Executive's duties or responsibilities);
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(iv) The failure of Employer to obtain in writing the assumption
of its obligation to perform this Agreement by any successor to all or
substantially all of the assets of Employer and/or Employer's
traditional outdoor division within fifteen (15) days after such sale
or after a merger, consolidation, sale or similar transaction in which
Employer is not the surviving entity, as applicable; or
(v) Employer requires a physical transfer or relocation of
Executive to a location unacceptable to Executive in order for
Executive to continue to perform his duties and responsibilities under
this Agreement.
No termination by Executive pursuant to any of clauses (i), (ii) or (iii) above
will be effective unless and until Employer has first been given written notice
of the conduct or circumstance purported to constitute "Good Reason" thereunder
and, unless such conduct or circumstance is not reasonably susceptible of cure
or such conduct or circumstance has already been the subject of notice hereunder
and cured by Employer previously (in which case, such termination shall be
effective on such current or prospective date as may be specified by Executive
when giving written notice of the termination), Employer has failed to cure that
conduct or omission within thirty (30) days following receipt of that written
notice by Employer, except that if such conduct or circumstance is the failure
to pay any moneys due to Executive under Section 3 hereof, then the cure period
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shall be fifteen (15) days following receipt of such written notice. Any
termination under clause (iv) or (v) or any termination which is subject to the
exceptions provided for in the immediately preceding sentence shall be effective
on such current or prospective date as may be specified by Executive when giving
written notice of the termination.
(e) By Executive Without Good Reason. Executive may terminate his
employment hereunder without Good Reason (as defined above) at any time
upon notice from Executive to the Chief Executive Officer of Employer.
7. Payments Upon Termination.
(a) Termination by Employer for Cause or by Executive Other Than for
Good Reason. If Executive's employment hereunder is terminated by Employer
for Cause, other than pursuant to Section 6(b)(vii), (viii), (ix) or (x) or
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by Executive other than for Good Reason prior to the end of the initial
term of this Agreement or any extension thereof made pursuant to Section 1,
Employer shall pay to Executive, as soon as reasonably practicable after
the date on which Executive's employment with Employer terminates (the
"Termination Date"), any Base Salary and bonus earned but unpaid through
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the Termination Date, but no further Base Salary, bonus, or other benefits
shall accrue or be payable for any period after the Termination Date.
If Executive's employment hereunder is terminated by Employer for
Cause pursuant to Section 6(b)(vii), (viii), (ix) or (x) prior to the end
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of the initial term of this Agreement or any extension thereof made
pursuant to Section 1, Employer shall pay to Executive, as soon as
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reasonably practicable after the Termination Date, in a lump sum, a cash
amount equal to one (1) year of Executive's Base Salary then in effect, but
no further Base Salary, bonus, or other benefits shall accrue or be payable
for any period after the Termination Date.
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(b) Termination Upon Death or Disability. If Executive's employment
hereunder is terminated prior to the end of the initial term of this
Agreement or any extension thereof made pursuant to Section 1 due to
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Executive's death or Disability, Employer shall pay to the beneficiaries
designated in writing by Executive or Executive's estate, as applicable, as
soon as reasonably practicable after the Termination Date, any Base Salary
and bonus earned but unpaid through the Termination Date. No further Base
Salary, bonus, or other benefits shall accrue or be payable for any period
after the Termination Date.
(c) Termination by Employer Without Cause or by Executive for Good
Reason. If Executive's employment hereunder is terminated by Employer
without Cause or by Executive for Good Reason prior to the end of the
initial term of this Agreement or any extension thereof made pursuant to
Section 1:
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(i) Employer shall pay to Executive, as soon as reasonably
practicable after the Termination Date, but in no event more than
fifteen (15) days after such Termination Date, any Base Salary and
bonus earned but unpaid through the Termination Date.
(ii) Employer shall pay to Executive, as soon as reasonably
practicable after the Termination Date, but in no event more than
fifteen (15) days after such Termination Date, in a lump sum, a cash
amount equal to the number of months remaining in the initial term or
any extension thereof of Executive's Base Salary then in effect,
provided that such payment shall be made only if Executive is in
compliance with his obligations under Section 8.
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(iii) Employer shall pay to Executive, as soon as reasonably
practicable after the Termination Date, but in no event more than
fifteen (15) days after such Termination Date, in a lump sum, any
accrued but unused or unpaid vacation relating to the calendar year in
which the Termination Date occurs.
(iv) Group shall continue to provide to Executive the major
medical coverage set forth in Section 4(b) on substantially the same
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terms as set forth therein until the earlier of: (A) the expiration of
the period for which he receives severance pay pursuant to clause (ii)
above and (B) the date Executive has commenced new employment and has
thereby become eligible for comparable benefits.
(v) If requested by Executive, Employer shall provide Executive
with a reasonably appropriate office and secretarial support and
assistance, at no cost to Executive, for a period of up to six (6)
months following the Termination Date.
(d) No Duty to Mitigate. Executive shall not be obligated to seek
other employment or take any other action to mitigate the amounts payable
to Executive under this Agreement.
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(e) Payments and Benefits Constitute Exclusive Remedy. Executive
agrees that if his employment is terminated prior to the end of the initial
term of this Agreement or any extension thereof made pursuant to Section 1,
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under circumstances entitling him to payment of any amounts and/or
provision of any benefits under this Section 7, his sole right and remedy
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against Employer or Group in connection with his employment, this
Agreement, and the termination of his employment shall be to collect those
amounts and/or receive those benefits, all as otherwise limited by the
other provisions of this Section 7.
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8. Confidentiality, Nonsolicitation, Noncompetition, Inventions. Executive
acknowledges that the business in which Employer, Group and their respective
Affiliates engages is competitive and that Executive's employment with Employer
will require that he have access to, and knowledge of, confidential and
proprietary information pertaining to Employer, Group and their respective
Affiliates that is of vital importance to the success of their respective
businesses; that the direct or indirect disclosure of any such confidential
information to existing or potential competitors of Employer, Group or their
respective Affiliates would place it at a competitive disadvantage and would do
material damage, financial and otherwise, to its business; and that by virtue of
Executive's experience and expertise, some of his services to Employer will be
special and unique and that Employer and the Executive are entering into this
Agreement with the intention of preserving the goodwill of the business of
Employer, Group and their respective Affiliates. Executive further acknowledges
that the duties of Executive to be performed hereunder shall be performed across
the United States, and not limited to a specific geographic area therein.
(a) Confidentiality. Executive shall not, at any time during the
Employment Period and for a period of five (5) years thereafter, except in
connection with the performance of services hereunder or in furtherance of
the business of Employer, Group or their respective Affiliates,
communicate, divulge, or disclose to any other person not a director,
officer, or employee, or not engaged to render services to or for,
Employer, Group or their respective Affiliates, or use for his own benefit
or purposes any Confidential Information (as such term is defined below) of
or relating to Employer, Group or their respective Affiliates that he has
obtained from Employer, Group or their respective Affiliates or any
predecessor entity (whether obtained by Executive before, during, or after
the term of his employment under this Agreement and including any such
information developed by Executive while employed by Employer); except that
this provision shall not preclude Executive from divulging, communicating
or using any information made known generally to the public by Employer or
by any party unrelated to Executive, or from making any disclosure required
by applicable law, rules, regulations, or court or governmental or
regulatory authority order or decree provided that, if practicable,
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Executive shall not make any such disclosure without first giving Employer
notice of intention to make that disclosure and an opportunity to interpose
an objection to the disclosure. All files, records, and documents
pertaining to Employer's business shall belong to and remain the sole and
exclusive property of Employer and if Employer requests the return of such
information at any time during, upon or after termination of executive's
employment, Executive shall immediately deliver the same to Employer.
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"Confidential Information" means information relating to the services or
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operations of the Employer, Group or their respective Affiliates that is not
generally known, is proprietary to Employer, Group or their respective
Affiliates and is made known to Executive or learned or acquired by Executive
while in the employ of Employer, including, without limitation, (i) information
relating to research, development, purchasing, accounting, marketing,
merchandising, advertising, selling, leasing, finance and business methods and
techniques and (ii) customer lists and other information relating to past,
present or prospective customers.
(b) Nonsolicitation. During the period commencing on the Effective
Date and continuing thereafter through the second anniversary of the
Termination Date, Executive shall not, except in connection with his duties
hereunder or otherwise for the sole account and benefit of Employer,
directly or indirectly, induce or solicit any employee of Employer, Group
or their respective Affiliates to leave their employ or approach any such
employee for any of the foregoing purposes or authorize, solicit or assist
in the taking of such actions by any third party.
(c) Noncompetition. During the Employment Period and for a period
equal to the number of months for which Executive has received severance
compensation hereunder (but in no event less than one (1) year) following
the Termination Date, Executive shall not, directly or indirectly, engage,
participate, make any financial investment in, or become employed by or
render advisory or other services to or for any Person or other business
enterprise which engages in the outdoor advertising business in any market
in which Employer engages in the outdoor advertising business and in which
Executive was performing services hereunder in the course of his employment
with Employer (any of the foregoing activities being referred to herein as
"Competitive Activities"). Executive also shall not provide management
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services to any Person engaged in Competitive Activities. The foregoing
covenant respecting Competitive Activities shall not be construed to
preclude Executive from making any investments in the securities of any
company, whether or not engaged in Competitive Activities with Employer,
Group or its Affiliates, to the extent such investments are actively traded
on a national securities exchange and such investment does not exceed 1.0%
of the issued and outstanding shares of such company or give Executive the
right or power to control or participate directly in making the policy
decisions of any such company.
(d) Inventions. Executive will promptly disclose to Employer and
furnish to Employer a complete record of every discovery, invention,
improvement, innovation, design, or work (any "Intellectual Development")
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that Executive may make or create, whether individually or with others,
while Executive is employed by Employer. Executive acknowledges and agrees
that any and all such Intellectual Developments, whether or not disclosed
to Employer, shall be the property of Employer. Upon request of Employer,
whether made before or after the termination of the employment
relationship, Executive will assign to Employer (or to a party designated
by Employer) all rights throughout the world to any Intellectual
Developments that relate to Employer's current or prospective business or
that result from Executive's work with Employer. Executive will cooperate
fully with Employer in securing rights with respect to all such
Intellectual Developments, including executing any documentation reasonably
proposed
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by Employer and testifying, under oath if requested, without expense to
Executive, to secure Employer's rights to Intellectual Developments in any
jurisdiction.
(e) Acknowledgment. Executive hereby acknowledges that (i) the
respective time periods and geographical areas provided above are necessary
for the protection of the business and goodwill of Employer, Group and
their respective Affiliates, (ii) should any particular provision of such
covenant be deemed invalid or unenforceable, Employer and Group will be
entitled to enforce such provision for such a period of time and within
such area as may be determined to be reasonable by a court of competent
jurisdiction and (iii) this Section 8 shall continue beyond the termination
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of his relationship with Employer hereunder to the extent provided herein.
Executive further acknowledges that the services to be rendered by
Executive hereunder are extraordinary and unique and are vital to the
success of Employer's business, and that the breach of any of the covenants
undertaken hereunder would cause substantial damage to Employer, impossible
of exact ascertainment.
(f) Equitable Relief. The parties hereto, recognizing that irreparable
injury will result to Employer, its business and property, in the event of
a breach of the provisions of Section 8 of this Agreement by Executive, and
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that but for the agreements contained in this Section 8, Employer would not
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enter into this Agreement, hereby agree that in the event of any actual or
threatened breach of the provisions of this Section 8 by Executive,
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Employer shall be entitled, in addition to any other remedies and damages
available, to temporary relief without notice and to all injunctive relief
without bond to restrain the violation thereof by Executive, Executive's
partners, agents, servants, employers, business associates, Executives, and
all persons acting for or with Executive. The prevailing party in such
action shall be entitled to recover from the other party all costs
associated therewith, including, without limitation, reasonable and
necessary attorney's fees.
9. Waiver. No provision of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in a
writing signed by Executive and Employer. No waiver by either party hereto at
any time of any breach by the other party of, or compliance with, 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
time or at any prior or subsequent time.
10. Entire Agreement. No agreement or representation, oral or otherwise,
express or implied, with respect to the subject matter hereof has been made by
either party which is not set forth expressly in this Agreement.
11. Notices. Notices under this Agreement shall be in writing and will be
effective immediately upon delivery if delivered in person (or by facsimile with
confirmation of receipt) to Executive (in the case of notices to Executive) or
in person (or by facsimile with confirmation of receipt) to the individual
indicated below (in the case of notices to Employer) or three (3) days after
mailing if deposited in the United States mail, postage prepaid, and addressed:
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if to Executive, to: Xxxx XxXxxxx
0000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Facsimile:
-------------
and if to Employer, to: NextMedia Outdoor, Inc.
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 000-X
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Facsimile: 000-000-0000
Either party may change the address to which notice to that party may be mailed
by notifying the other party of the change in the manner contemplated in this
section.
12. Severability. Any provision of this Agreement that is prohibited or
unenforceable shall be ineffective to the extent, but only to the extent, of
such prohibition or unenforceability without invalidating the remaining portions
hereof and such remaining portions of this Agreement shall continue to be in
full force and effect.
13. Assignment. Executive may not assign, transfer or otherwise dispose of
any of his rights hereunder without the prior written consent of Employer, in
its sole discretion. Employer may assign its rights and obligations under this
Agreement to any subsidiary or Affiliate of Employer without the consent of
Executive. Any attempted assignment in violation of the foregoing shall be void
and without force or effect.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument and a signature to any
one of such counterparts shall be deemed to be a signature to all such
counterparts.
15. Governing Law. The provisions of this Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware applicable to
contracts made in that state.
16. Attorney's Fees and Expenses. If either of the parties institutes any
legal action to enforce its rights under, or to recover damages for material
breach of, this Agreement, the prevailing party shall be entitled to recover
from the other party any actual expenses for attorney's fees, costs, expenses
and disbursements incurred by the prevailing party.
17. Executive Representations. Executive hereby represents and warrants to
Employer that (a) Executive's execution and delivery of this Agreement and his
performance of his duties and obligations hereunder will not conflict with, or
cause a default under, or give any party a right to damages under, or to
terminate, any other agreement to which Executive is a party or by which he is
bound and (b) there are no agreements or understandings that would make unlawful
Executive's execution or delivery of this Agreement or his employment hereunder.
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18. Disputes. Any dispute or controversy arising under, out of, in
connection with or in relation to this Agreement shall, at the election and upon
written demand of either Executive or Employer, be finally determined and
settled by arbitration in the city of Employer's headquarters in accordance with
the rules and procedures of the American Arbitration Association, and judgment
upon the award may be entered in any court having jurisdiction thereof. Employer
shall pay the costs and expenses of such arbitration and the fees of Executive's
counsel and experts unless the finder of fact determines that Employer is the
prevailing party in such arbitration.
19. Miscellaneous. The provisions of this Agreement shall survive the
termination of Executive's employment with Employer. This Agreement supersedes
any prior written or oral agreements or understanding between the parties
relating to the subject matter hereof. The headings in this Agreement are
inserted for convenience of reference only and shall not be a part of or control
or affect the meaning of any provision hereof.
20. Definitions. In addition to the defined terms set forth throughout this
Agreement, the following capitalized terms shall have the respective meanings
set forth below:
"Affiliate" shall mean with respect to any Person:
(a) Any Person directly or indirectly Controlling, Controlled by or
under common Control with such Person ("Control Persons");
---------------
(b) Individuals who are members of the family of any individual who is
a Control Person;
(c) Entities that are Controlled by such family members; and
(d) Entities in which Control Persons have a material investment.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Base Salary" shall have the meaning set forth in Section 3(a) of this
Agreement.
"Board of Directors" shall have the meaning set forth in Section 2(a) of
------------
this Agreement.
"Cause" shall have the meaning set forth in Section 6(b) of this Agreement.
------------
"Compensation Committee" shall have the meaning set forth in Section 3(a)
------------
of this Agreement.
"Competitive Activities" shall have the meaning set forth in Section 8(c)
------------
of this Agreement.
"Confidential Information" shall have the meaning set forth in Section 8 of
---------
this Agreement.
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"Control" (including the correlative terms "controlled by" and
"controlling" shall mean the possession, directly or indirectly, of the power to
direct, or to cause the direction of, the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise.
"Disability" and "Disabled" shall have the meanings set forth in Section 5
---------
of this Agreement.
"Effective Date" shall have the meaning set forth in Section 1 of this
---------
Agreement.
"Employer" shall have the meaning set forth in the preamble to this
Agreement.
"Employment Period" shall have the meaning set forth in Section 1 of this
---------
Agreement.
"Executive" shall have the meaning set forth in the preamble to this
Agreement.
"Good Reason" shall have the meaning set forth in Section 6(d) of this
------------
Agreement.
"Group" shall have the meaning set forth in the preamble to this Agreement.
"Intellectual Development" shall have the meaning set forth in Section 8(d)
------------
of this Agreement.
"Investors LLC" shall have the meaning set forth in Section 3(c) of this
------------
Agreement.
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership, limited liability company or
government, or any agency or political subdivision thereof.
"Termination Date" shall have the meaning set forth in Section 7(a) of this
------------
Agreement.
[The Remainder of this Page Is Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
"EMPLOYER" "EXECUTIVE"
NEXTMEDIA OUTDOOR, INC.
By:___________________________ __________________________________
Name: Xxxx X. Xxxxxx Xxxx XxXxxxx
Title: Vice President
"GROUP"
NEXTMEDIA GROUP, INC.
By:
-----------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Sr. Vice President and Chief Financial Officer
