Exhibit 10.226
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "AGREEMENT") is
dated as of March 12, 2002 by and between XXXXXX COMMUNICATIONS MANAGEMENT
COMPANY, INC., a Florida corporation ("XXXXXX"), and Xxxxxx X. Xxxxxxxx, Xx., an
individual resident of the State of Florida ("EMPLOYEE").
RECITALS
X. Xxxxxx, a wholly owned subsidiary of Xxxxxx Communications
Corporation ("PCC"), has been formed to provide managerial and administrative
services to the various businesses operated by PCC and its subsidiaries and
affiliates (collectively, the "XXXXXX GROUP"), including the PAX Net network,
any other programming networks and various television stations owned or
otherwise held, operated or programmed by the Xxxxxx Group.
X. Xxxxxx desires to employ Employee to perform executive and
administrative duties for the Xxxxxx Group while holding the "TITLED POSITION"
set forth in Schedule I annexed hereto.
C. Employee wishes to enter into this Agreement and to be employed by
Xxxxxx as the Titled Position for the Xxxxxx Group and to provide services to
Xxxxxx on the terms and conditions set forth in this Agreement.
D. Employee and Xxxxxx are parties to that certain Employment Agreement
dated as of June 30, 2000 (the "Original Employment Agreement"), but wish to
amend and restate the provisions thereof as set forth in this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the parties intending to be bound legally, hereby
amend and restate the Original Employment Agreement as follows:
SECTION 1 EMPLOYMENT
1.1 TERM OF EMPLOYMENT. The term of this Agreement (the "Agreement
Term") shall be deemed to have commenced as of the "COMMENCEMENT DATE" set forth
in Schedule I hereof, and shall continue until the fourth (4th) anniversary of
the Commencement Date, unless terminated sooner in accordance with this
Agreement.
1.2 DUTIES. Employee acknowledges, agrees and accepts employment by
Xxxxxx in the Titled Position for the Xxxxxx Group and in such capacity Employee
shall be responsible for the performance of the duties of the Titled Position
and for such other executive and administrative
duties as may be designated from time to time by the Responsible Officer or the
Chairman of PCC. Employee shall be provided by Xxxxxx suitable office space for
Employee in the "EMPLOYMENT LOCATION", as identified on Schedule I annexed
hereto, together with all reasonable support staff and secretarial assistance,
equipment, stationary, books and supplies, as determined by the Responsible
Officer. Employee shall use Employee's best efforts during the term of
employment hereunder to further, enhance and develop the business of PCC, the
Xxxxxx Group and any networks or stations it may own or operate. Subject to the
direction of the "RESPONSIBLE OFFICER", as identified in Schedule I annexed
hereto, Employee shall perform such duties as set forth in Schedule I annexed
hereto under "EMPLOYMENT DUTIES." Except as expressly modified herein, Employee
shall be subject to all of the Xxxxxx Group's policies including payola, plugola
and conflicts of interest, as well as the following:
(a) Employee will comply with all Xxxxxx Group and
professional standards governing Employee's objectivity in the
performance of Employee's duties, including restrictions on outside
activities, investments, business interests, or other involvements
which could compromise Employee's objectivity or create an impression
of conflict of interest. Employee will not knowingly, without the prior
approval of Employee's Responsible Officer on behalf of Xxxxxx, accept
any gift, compensation, or gratuity (which excludes business meals and
entertainment received by Employee in the ordinary course of business)
from any person or entity with which the Xxxxxx Group or any of its
broadcast properties is or may be in competition or in any instance
where there is a stated or implied expectation of favorable treatment
of that person or entity. Employee will not, without the prior written
approval of Employee's Responsible Officer, take advantage of any
business opportunity or situation or engage in any enterprise or
venture of which the Xxxxxx Group may have an interest on his or her
own behalf, if said business opportunity or situation, enterprise or
venture is related in any way to or is similar to the business of the
Xxxxxx Group.
(b) In performing the Employment Duties under this Agreement,
Employee shall conduct himself with due regard to social conventions,
public morals and standards of decency, and will not cause or permit
any situation or occurrence which would tend to degrade, scandalize,
bring into public disrepute, or otherwise lower the community standing
of Employee, or Xxxxxx'x public image.
1.3 ACTIVITIES. Employee shall, except during vacation periods, periods
of illness, and leaves of absence approved by Xxxxxx, devote full and undivided
business time, attention and energies to the duties and responsibilities
required by Xxxxxx, as directed by the Responsible Officer. During the Agreement
Term, Employee shall not engage in any other business activity which would
conflict with Employee's duties without the prior written approval of Employee's
Responsible Officer on behalf of Xxxxxx, which shall not be unreasonably
withheld; PROVIDED, HOWEVER, that Xxxxxx may withhold its consent to any
business activity by Employee that Xxxxxx determines would directly interfere,
impair or hinder in any way Employee's ability to perform or otherwise satisfy
Employee's responsibilities and duties from time to time in effect, as the
holder of the Titled Position of the Xxxxxx Group or otherwise, under this
Agreement.
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1.4 DELEGATION OF DUTIES. Employee may not delegate the performance of
any of Employee's obligations or duties under this Agreement, or assign any of
Employee's rights under this Agreement, without the prior written consent of
Xxxxxx, except that Employee may delegate duties to other employees of Xxxxxx
where reasonable and customary in the ordinary course of Xxxxxx'x business and
consistent with the performance of the Titled Position.
SECTION 2 COMPENSATION AND BENEFITS
Beginning on the Commencement Date, Employee shall be compensated for
the performance of the Employment Duties performed under the terms hereof as
follows:
2.1 BASE SALARY AND ANNUAL CASH BONUS. As compensation for the services
performed by Employee hereunder, Employee shall receive a Base Salary and Annual
Cash Bonus, as follows:
(a) BASE SALARY. Xxxxxx and Employee acknowledge and agree
that Employee's Base Salary in effect for each of the first and second
Employment Years during the term hereof shall be the per year amount
set forth in Schedule I hereof. For purposes of this Agreement,
"EMPLOYMENT YEAR" means a calendar year ended July 31.
(b) INCREASE IN BASE SALARY. For each of the third and fourth
Employment Years during the term hereof, Employee's Base Salary shall
be increased by an amount determined by the Responsible Officer
(subject to the approval of the Chairman of the Board of PCC);
provided, in no event shall Employee's Base Salary during any
successive Employment Year during the term hereof be less than
Employee's Base Salary in effect for the immediately preceding
Employment Year.
(c) BONUS. Employee shall be entitled to an annual bonus,
based upon Xxxxxx Group performance, in the amount payable and as
described in Schedule I annexed hereto.
(d) MANNER OF PAYMENT. Employee's Base Salary shall be paid,
at Xxxxxx'x option, either (i) in equal bi-monthly installments, or
(ii) in accordance with the customary payroll policies of Xxxxxx with
respect to its management employees.
2.2 OTHER CASH AND NON-CASH COMPENSATION.
(a) In addition to Employee's Base Salary, Employee may, as
determined from time to time, in the sole discretion of Xxxxxx, be
eligible to receive or participate in cash and non-cash compensation
programs, including, without limitation, annual and special cash and
non-cash bonus awards, grants of stock options, restricted stock,
"phantom-equity" and stock appreciation rights (collectively, "NON-CASH
COMPENSATION"). Employee's rights in respect of any Non-Cash
Compensation shall be governed under the terms of a separate document
or documents, if any Non-Cash Compensation is to be awarded to
Employee.
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Except as provided in the subsection 2(b) hereof, under no circumstance
should this provision be deemed to constitute any express or implied
right, entitlement or interest of Employee to be awarded or participate
in, or obligation, agreement or requirement of Xxxxxx, to award,
provide or offer to Employee, any form of Non-Cash Compensation, all of
which rights, entitlements, interests, obligations, agreements or
understandings are hereby expressly disclaimed.
(b) Concurrently with the execution hereof, Employee shall be
granted options to acquire shares of Xxxxxx Communications Corporation
Class A Common Stock in the amount and on the terms and conditions set
forth in Schedule I annexed hereto.
2.3 BUSINESS EXPENSES. Upon proper substantiation and documentation by
Employee, Xxxxxx shall reimburse Employee promptly for all reasonable travel,
entertainment and other similar business expenses incurred by Employee in the
performance of Employee's duties under this Agreement. Reimbursement of expenses
will be made in accordance with applicable policies of Xxxxxx. All extraordinary
disbursements and expenditures by Employee, and any disbursements and
expenditures that are not provided for in any budget established by Xxxxxx, must
be approved in advance by Xxxxxx.
2.4 PERSONAL TIME. Employee shall be entitled to a minimum of four
weeks of paid vacation during each Employment Year, in addition to personal time
off in accordance with Xxxxxx'x employee handbook as in effect from time to
time.
2.5 BENEFITS. The compensation specified above shall be exclusive of
and in addition to any benefits that may be available to Employee under any
employee pension plan, group life insurance plan, hospitalization plan, medical
service plan, death benefit plan, or any other employee benefit plan applicable
generally to the employees of Xxxxxx, in accordance with their respective
positions, and which may be in effect at any time or from time to time during
the term of Employee's employment. Employee shall be entitled to participate in
the Supplemental Executive Retirement Plan, as and to the extent made available
to other members of senior management.
2.6 WITHHOLDING. Xxxxxx shall be responsible for withholding from
Employee's compensation FICA, FUTA and other payroll and income taxes, as
required by law and such other amounts as may be directed by Employee.
SECTION 3 TERMINATION OF EMPLOYMENT; PAYMENTS UPON TERMINATION
3.1 EVENTS. Employee's employment shall terminate on the earliest of
the following dates:
(a) DEATH. The date of Employee's death.
(b) DISABILITY. The date Employee is terminated due to
Disability. "DISABILITY"
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means that, in the opinion of the Company's physicians, Employee is
unable by reason of illness or accident to perform the essential
functions of the Employment Duties for a period of more than 180
consecutive days.
(c) XXXXXX TERMINATION WITHOUT CAUSE. The date Employee is
terminated by Xxxxxx pursuant to a Xxxxxx Termination Without Cause. A
"XXXXXX TERMINATION WITHOUT CAUSE" means any termination of Employee by
Xxxxxx for any reason, other than for Disability pursuant to Subsection
3.1(b) or a Xxxxxx Termination for Cause pursuant to any clause of
Subsection 3.1(d) prior to a Change of Control, or clauses (i), (iii),
(iv), or (vi) of Subsection 3.1(d) within one year after a Change of
Control.
For purposes of this Agreement, a "CHANGE OF CONTROL" will
occur if (a) none of Xxxxxx X. Xxxxxx, his estate, his wife, his lineal
descendants, or any trust created for the sole benefit of any one or
more of them during their lifetimes, or any combination of any of the
foregoing, shall (i) own, directly or indirectly, at least thirty-five
percent of the issued and outstanding capital stock of PCC, or (ii)
have voting control directly or indirectly, equal to at least 51
percent of the issued and outstanding capital stock of PCC entitled to
vote in the election of the Board of Directors of PCC; (b) the approval
by the shareholders of PCC of a reorganization, merger, or
consolidation, in each case, with respect to which persons who were
shareholders of PCC immediately prior to this reorganization, merger or
consolidation do not, immediately thereafter, own more than 50 percent
of the combined voting power entitled to vote generally in the election
of directors of the reorganized, merged or consolidated company's (or
any successor entity's) then outstanding securities; (c) a liquidation
or dissolution of PCC or of the sale of all or at least 80 percent of
PCC's assets; or (d) Xxxxxx X. Xxxxxx shall, by written agreement with
NBC, its affiliates or assignees (collectively, "NBC"), cease to
exercise substantially all of his day-to-day control of PCC to the
extent permitted by the FCC rules and regulations, without such
agreement constituting a "transfer of control" under FCC rules and
regulations, it being understood that, without limitation, an agreement
or arrangement between Xxxxxx X. Xxxxxx and NBC whereby Xxxxxx X.
Xxxxxx and his affiliates receive more than ninety percent (90%) of the
purchase price for the Class B Common shares subject to that certain
Call Agreement dated September 15, 1999, as amended or modified from
time to time, between Xxxxxx X. Xxxxxx, certain affiliates of Xxxxxx X.
Xxxxxx and NBC Palm Beach Investment II, Inc., shall be deemed to
constitute an agreement amounting to a Change of Control under this
clause (d).
(d) XXXXXX TERMINATION FOR CAUSE. The date Employee is
terminated by Xxxxxx pursuant to a Xxxxxx Termination for Cause. A
"XXXXXX TERMINATION FOR CAUSE" means a termination of Employee by
Xxxxxx resulting from any of the following:
(i) Employee's conviction for the commission of (A) a
felony, (B) two (2) offenses for operating a motor vehicle
while impaired by or under the influence of alcohol or illegal
drugs, (C) any criminal act with respect to Employee's
employment (including any criminal act involving a violation
of the Communications Act of 1934,
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as amended, or regulations promulgated by the Federal
Communications Commission), or (D) any act that materially
threatens to result in suspension, revocation, or adverse
modification of any FCC license of any broadcast station owned
by any affiliate of Xxxxxx or would subject any such broadcast
station to fine or forfeiture;
(ii) Employee's wilfully taking of any action or
inaction the intended or reasonably foreseeable result of
which would cause Xxxxxx or any Station to be in default under
any material contract, lease or other agreement which conduct
is contrary to his performance of his Employment Duties or not
authorized or confirmed by the Responsible Officer;
(iii) Employee's dependence on alcohol or illegal
drugs;
(iv) Refusal to perform according to or follow the
legal policies and directives of the Responsible Officer and
failing to cure such failure as soon as practicable and in any
event within 30 days from receipt of written notice setting
forth the specifics of such unsatisfactory performance;
(v) Conduct which could be reasonably inferred to
detract from the public image of the Xxxxxx Group and failing
to cease such conduct or commence to take reasonable curative
action with respect thereto requested by the Company or both,
as soon as practicable and in any event within 30 days from
receipt of written notice setting forth the specifics of such
conduct;
(vi) Employee's misappropriation, conversion or
embezzlement of the assets of Xxxxxx or any affiliate of
Xxxxxx;
(vii) A material breach of this Agreement by Employee
and failing to cure such breach as soon as practicable and in
any event within 30 days from receipt of written notice
setting forth the specifics of such breach; or
(viii) Any representation of Employee in Section 7 of
this Agreement being false when made.
(e) EMPLOYEE'S VOLUNTARY RESIGNATION. The date of Employee's
Voluntary Resignation. A "VOLUNTARY RESIGNATION" means any resignation
by Employee other than Employee's Termination for Cause, as set forth
in Subsection 3(f) of this Agreement.
(f) EMPLOYEE'S TERMINATION FOR CAUSE. The date of Employee's
Termination for Cause. "EMPLOYEE'S TERMINATION FOR CAUSE" means the
termination of employment by Employee as a result of the occurrence of
any of the following events:
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(i) Xxxxxx elects to change the place of employment
to a location not in the Employment Location specified on
Schedule I hereto.
(ii) Xxxxxx fails to remedy a breach of this
Agreement after thirty (30) days' written notice from
Employee, setting forth the specifics of such breach; or
(iii) Xxxxxx makes any material, adverse change in
Employee's position, duties, or responsibilities.
3.2 PAYMENTS UPON TERMINATION. Following the termination of Employee's
employment pursuant to this Section 3, Xxxxxx shall have no further liability to
Employee, and no further payment shall be made to Employee, except to the extent
expressly provided for in this Subsection, as follows:
(a) TERMINATION COMPENSATION FOR DEATH, DISABILITY, XXXXXX
TERMINATION WITHOUT CAUSE OR EMPLOYEE'S TERMINATION FOR CAUSE. If
Employee's employment is terminated as a result of Death, Disability,
Xxxxxx Termination Without Cause, or Employee's Termination for Cause,
under Subsections 3.1(a), (b), (c) or (f), respectively, within thirty
(30) days of termination, Employee (or, in the case of a termination as
a result of the death of Employee, the appropriate representative of
Employee's estate) will be paid the following:
(1) Employee will continue to receive the Employee's
Base Salary then in effect for a period equal to the lesser of
(x) the number of Severance Months specified in Schedule I
hereto or (y) the remaining months under the term of this
Agreement;
(2) A lump sum equal to unpaid portion of any
previously awarded bonus; and
(3) Employee's bonus for the fiscal year in which the
termination occurs, pro-rated, if necessary, according to the
formula set forth in Schedule I, which bonus shall be payable
in full if and when bonus awards for such fiscal year commence
to be made to other members of senior management; and
(4) An amount in cash equivalent to the accrued but
unused vacation and personal time of Employee through the
termination date; and
(5) Without duplication of any of the foregoing, all
Base Salary, expenses and other payments or cash benefits due
to Employee through Employee's termination date.
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In addition, Employee shall also be entitled to any
benefits for which Employee qualifies under any employee
benefit plan available to Employee (including, but not limited
to any disability insurance, life insurance and death benefits
of the type described in Section 2.5). Employee shall also be
entitled to all rights to continuation or conversion of
benefits required by law to be offered to a departing
employee.
(b) TERMINATION COMPENSATION FOR XXXXXX TERMINATION FOR CAUSE
OR EMPLOYEE'S VOLUNTARY Resignation. If Employee's employment is
terminated as a result of a Xxxxxx Termination for Cause or Employee's
Voluntary Resignation, under Subsections 3.1(d), or (e), respectively,
within thirty (30) days of termination, Employee will be paid the
following:
(1) A lump sum equal to unpaid portion of any
previously awarded bonus; and
(2) Employee's bonus for the fiscal year in which the
termination occurs, pro-rated, if necessary, according to the
formula set forth in Schedule I, which bonus shall be payable
in full if and when bonus awards for such fiscal year commence
to be made to other members of senior management; and
(3) An amount in cash equivalent to the accrued but
unused vacation and personal time of Employee through the
termination date; and
(4) Without duplication of any of the foregoing, all
Base Salary, expenses and other payments or cash benefits due
to Employee through Employee's termination date.
In addition, Employee shall also be entitled to any
benefits for which Employee qualifies under any employee
benefit plan available to Employee. Employee shall also be
entitled to all rights to continuation or conversion of
benefits required by law to be offered to a departing
employee.
3.3 NOTICES OF TERMINATION; EFFECTIVE DATE OF TERMINATION. For all
terminations except in the case of Death, either Employee or Xxxxxx, as the case
may be, shall give written notice of termination to the other. In the case of
any termination, other than a Xxxxxx Termination for Cause, such notice shall be
effective not less than thirty (30) days after the date on which it is received
by the other party. Notice of a Xxxxxx Termination for Cause may be effective
immediately.
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SECTION 4 INTANGIBLES
4.1 MEMORANDA, NOTES AND RECORDS. All memoranda, notes, names and
address lists, records or other documents made or compiled by Employee or made
available to Employee during the term of employment concerning the business of
any member of the Xxxxxx Group and any and all copies thereof shall be delivered
to Xxxxxx upon the termination of Employee's employment for whatever reason or
at any other time upon request. Employee shall not at any time during Employee's
employment, or after the termination of employment, use for Employee's own
benefit or for the benefit of others, or divulge to others, any information,
trade secrets, knowledge, or data of a secret or confidential nature or
otherwise not readily available to members of the general public that concerns
the business or affairs of any member of the Xxxxxx Group and whether or not
acquired by the Employee during the term of employment by Xxxxxx.
4.2 RIGHTS IN INTANGIBLE ASSETS. Employee recognizes and acknowledges
that all rights in the formats, programming, concepts, approaches, copy and
titles embodied in the operation of the Xxxxxx Group or any particular station
or the PAX Net network or any other broadcast network, and all changes,
additions and amendments thereto which may occur during or after the Term
hereof, belong exclusively to Xxxxxx. Employee hereby assigns any and all rights
or interests Employee may have therein to Xxxxxx. Employee shall not at any time
during Employee's employment, or after the termination of employment, have or
claim any right, title or interest in any trade name, patent, trademark,
copyright or other similar rights belonging to or used by Xxxxxx and shall not
have or claim any right, title or interest in any material or matter of any sort
prepared for or used in connection with the business or promotion of Xxxxxx,
whether produced, prepared or published in whole or in part by Employee or by
Xxxxxx.
SECTION 5 NONINTERFERENCE AND CONFIDENTIALITY
5.1 NONINTERFERENCE. Employee agrees that from the date of this
Agreement through the first anniversary of the date Employee's employment with
the Xxxxxx Group terminates, Employee will not, directly or indirectly, whether
as sole proprietor, partner, lessor, venturer, stockholder, director, officer,
employee, consultant or in any other capacity as principal or agent or through
any person, subsidiary, affiliate or employee acting as nominee or agent, engage
or participate in any of the following actions:
(a) Influencing or attempting to influence any person or
entity who is a contracting party with any member of the Xxxxxx Group
to terminate any written or oral agreement with such member of the
Xxxxxx Group; it being understood that notwithstanding the foregoing,
consulting or working for a competitor in the ordinary course after the
term shall not, absent other evidence or action on the part of Employee
to the contrary, constitute a violation of this provision; or
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(b) Hiring or attempting to hire for employment or as an
independent contractor any person who is actively employed (or in the
preceding six months was actively employed) by any member of the Xxxxxx
Group or attempting to influence any such person to terminate
employment with any member of the Xxxxxx Group.
5.2 CONFIDENTIALITY. Employee covenants and agrees that both during the
Agreement Term and thereafter he will not disclose to any third party or use in
any way any confidential information, business secrets, or business opportunity
of the Xxxxxx Group, including, without limitation, advertiser lists, rate
cards, programming information, programming plans, marketing, advertising and
promotional ideas and strategies, marketing surveys and analyses, ratings
reports, budgets, research, or financial, purchasing, planning, employment or
personnel data and information. Immediately upon termination of Employee's
employment with the Xxxxxx Group for any reason, or at any other time upon the
Xxxxxx Group's request, Employee will return to the Xxxxxx Group all memoranda,
notes, records or other documents compiled by Employee or made available to
Employee during the Agreement Term concerning the business of the Xxxxxx Group,
all other confidential information and all personal property of the Xxxxxx
Group, including, without limitation, all files, audio or video tapes,
recordings, records, documents, drawings, specifications, lists, equipment,
supplies, promotional material, scripts, keys, phone or credit cards and similar
items and all copies thereof or extracts therefrom.
5.3 ENFORCEMENT. Employee agrees that the restrictive covenants
contained in this section 5 are a material part of Employee's obligations under
this Agreement for which the Xxxxxx Group has agreed to compensate Employee as
provided in this Agreement. Employee agrees that the injury the Xxxxxx Group
will suffer in the event of the breach by Employee of any clause of this Section
5 will cause the Xxxxxx Group irreparable injury that cannot be adequately
compensated by monetary damages alone. Therefore, Employee agrees that the
Xxxxxx Group, without limiting any other legal or equitable remedies available
to it, shall be entitled to obtain equitable relief by injunction or otherwise
from any court of competent jurisdiction, including, without limitation,
injunctive relief to prevent Employee's failure to comply with the terms and
conditions of this Section 5 and Employee hereby waives hereunder any defense
based upon an adequate remedy at law in any such action for equitable relief.
5.4 REFORMATION. If the covenants in this Section 5 are held to be
unenforceable in any jurisdiction because of the duration or scope thereof, the
court making such determination shall have the power to reduce the duration
and/or scope of the provision or covenant, and the provision or covenant in its
reduced form shall be enforceable; PROVIDED, HOWEVER, that the determination of
such court shall not affect the enforceability of Section 5 in any other
jurisdiction.
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SECTION 6 ARBITRATION
Except as otherwise provided to the contrary below, any dispute arising
out of or related to this Agreement that Xxxxxx and Employee are unable to
resolve by themselves shall be settled by arbitration in West Palm Beach,
Florida, by a panel of three (3) arbitrators. Xxxxxx and Employee shall each
designate one disinterested arbitrator, and the two arbitrators so designated
shall select the third arbitrator. The persons selected as arbitrators need not
be professional arbitrators, and persons such as lawyers, accountants and
bankers shall be acceptable. Before undertaking to resolve the dispute, each
arbitrator shall be duly sworn faithfully and fairly to hear and examine the
matters in controversy and to make a just award according to the best of their
understanding. The arbitration hearing shall be conducted in accordance with the
employment arbitration rules of the American Arbitration Association. The
written decision of a majority of the arbitrators shall be final and binding on
Xxxxxx and Employee. The costs and expenses of the arbitration proceeding shall
be assessed between Xxxxxx and Employee in a manner to be decided by a majority
of the arbitrators, and the assessment shall be set forth in the decision and
award of the arbitrators. Judgment on the award, if it is not satisfied within
thirty (30) days, may be entered in any court having jurisdiction over the
matter. No action at law or suit in equity based upon any claim arising out of
or related to this Agreement shall be instituted in any court by Xxxxxx or
Employee against the other except (i) an action to compel arbitration pursuant
to this Section, (ii) an action to enforce the award of the arbitration panel
rendered in accordance with this Section, or (iii) any other action which, under
applicable law, may not be made subject to binding arbitration.
SECTION 7 REPRESENTATIONS OF EMPLOYEE
To induce Xxxxxx to enter into this Agreement and to employ Employee,
Employee represents and warrants to Xxxxxx as of the date hereof and as of each
date of payment of any compensation under the terms hereof as follows:
7.1 ABSENCE OF CONFLICTING AGREEMENTS. The execution, delivery and
performance of this Agreement by Employee does not conflict with result in a
breach of, or constitute a default under any enforceable covenant not to compete
or any other enforceable agreement, instrument, or license, to which Employee is
a party or by which Employee is bound.
7.2 CONDUCT. Employee has not:
(a) Been convicted of any felony;
(b) Committed any criminal act with respect to Employee's
current or any prior employment (including any criminal act involving a
violation of the Communication Act of 1934, as amended, or regulations
promulgated by the FCC), or
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(c) Knowingly committed any act that materially threatened to
result in suspension, revocation, or adverse modification of any FCC
license of any broadcast station or which subjected any broadcast
station to fine or forfeiture.
7.3 CHEMICAL DEPENDENCE. Employee is not dependent on alcohol or
illegal drugs. Employee recognizes that Xxxxxx shall have the right to conduct
random drug testing of its employees and that Employee may be called upon in
such a manner.
SECTION 8 MISCELLANEOUS
8.1 GOVERNING LAW. This Agreement shall be construed in accordance
with, and shall be governed by, the laws of the State of Florida.
8.2 ENTIRE AGREEMENT. This Agreement supersedes any prior employment
agreement or understanding with respect to any terms of employment between
Xxxxxx and Employee, whether written or oral (including but not limited to the
Original Employment Agreement), and is effective as of the date first written
above; no written supplemental executive retirement plan or related documents,
if any, between Xxxxxx and Employee shall be deemed superceded, amended or
modified by the terms hereof. The instrument contains the entire understanding
and agreement between the parties relating to the subject matter hereof. Neither
this Agreement nor any provision hereof may be waived, modified, amended,
changed or terminated, except by an agreement in writing signed by the party
against whom enforcement of any waiver, modification, change, amendment or
termination is sought.
8.3 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all such counterparts shall together
constitute a single Agreement.
8.4 PROVISIONS SEVERABLE. To the extent that any provision of this
Agreement is invalid, illegal, or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby.
8.5 HEADINGS. The section headings of this Agreement are for
convenience only and shall not be used in interpreting or construing this
Agreement.
8.6 ASSIGNMENT OF AGREEMENT AND CHANGE OF CONTROL; SUCCESSORS AND
ASSIGNS. This Agreement may be assigned by Xxxxxx without the prior written
consent of Employee. Employee may not assign this Agreement or any of its right
or interests herein to any other party. The rights and obligations of the
parties shall inure to the benefit of and be binding upon heirs, successors,
administrators assigns, as well as any entity to which Xxxxxx may assign its
assets or transfer its business in a Change of Control (as defined in Section
3.1, above), in a merger or acquisition, by operation of law, or otherwise. The
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obligations of Xxxxxx to pay money and/or provide benefits to Employee under
this Agreement, by operation of law or pursuant to the terms of the plans or
documents governing such benefits, shall survive Employee's death (with payments
thereafter to be made at the direction of the executors, personal
representatives or other appropriate representatives of Employee's estate).
8.7 NOTICES. All notices, demands and requests required or permitted to
be given under the provisions of this Agreement shall be (i) in writing, (ii)
delivered by personal delivery, or sent by commercial delivery service,
registered or certified mail, return receipt requested, (iii) deemed to have
been given on the date of personal delivery or the date set forth in the records
of the delivery service or on the return receipt, and (iv) addressed as follows:
If to Xxxxxx: Xxxxxxx Xxxxxxxx, CEO
(with a copy to Xxxxxxx X. Xxxxxxxx, Esq.)
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
If to Employee: at the address set forth under employees
signature on the last page hereof.
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
8.7.
8.8 WAIVER. The waiver by Xxxxxx or Employee of a breach of any
provision by the other party, or the failure of either Xxxxxx or Employee to
exercise any of the rights set forth herein, shall not operate or be construed
as a waiver of any subsequent breach or be deemed to be a waiver by any party of
any of its rights hereunder. No waiver by any party at any time, express or
implied, of any breach of any provision of this Agreement shall be deemed a
waiver of a breach of any other provision of this Agreement or a consent to any
subsequent breach of the same or other provisions.
8.9 XXXXXX'X ACKNOWLEDGMENTS REGARDING AUTHORITY. The person signing on
behalf of Xxxxxx warrants and represents that he has read this Agreement, that
he understands it, and that he has full and actual authority to enter into this
Agreement on behalf of Xxxxxx. He further represents and warrants that this
Agreement is valid and binding on Xxxxxx immediately, without the need for any
further approvals, procedures or formalities within the company, and that all
approvals, procedures or formalities necessary to effectuate or ratify this
Agreement by Xxxxxx (including, but not limited to any required approval of the
Compensation Committee of the Board of Directors) have been obtained or will be
obtained by Xxxxxx.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the day and year first written above.
EMPLOYEE XXXXXX COMMUNICATIONS MANAGEMENT
COMPANY, INC.
By
----------------------------------- --------------------------------------
Xxxxxx X. Xxxxxxxx, Xx. Name: Xxxxxxx Xxxxxxxx
Title: President
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