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EXHIBIT 10.208
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made as of this 16th day
of October, 1999 (the "Effective Date"), by and between Xxxxxx Communications
Corporation, a Delaware corporation with its principal place of business at 000
Xxxxxxxxxx Xxxx Xxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000 (the "Company") and
Xxxxxx X. Xxxxxx, an individual whose address is 000 X. Xxxxx Xxxxxxxxx, Xxxx
Xxxxx, Xxxxxxx 00000 (the "Executive") (collectively, the "Parties").
The Executive is the owner of a majority of the total voting power of
the outstanding common stock of the Company. The Company desires to employ the
Executive as its Chairman ("Chairman"), and the Parties desire to enter into
this agreement to secure the Executive's employment during the term hereof, all
on the terms and conditions set forth herein.
NOW, THEREFORE, the Parties agree as follows:
1. TITLE. The Company hereby employs the Executive and the Executive
agrees to serve the Company as Chairman, headquartered principally in
the Company's West Palm Beach, Florida offices, on the terms and
conditions hereinafter set forth.
2. EMPLOYMENT TERM. The term of the Executive's employment by the Company
pursuant to this Agreement shall be three years, commencing on the
Effective Date and terminating on the anniversary of the Effective Date
in 2002, unless renewed as set forth below or sooner terminated
pursuant to Paragraph 8 hereof (the "Term of Employment"). So long as
the Executive remains the FCC Single Majority Shareholder of the
Company (as such term is defined under applicable law and the rules and
regulations of the Federal Communications Commission (the "FCC")), the
Term of Employment shall automatically renew for successive one year
periods, commencing on the third anniversary of the Effective Date and
each anniversary of the Effective Date thereafter. In the event this
Agreement is terminated after the Executive ceases to be the FCC Single
Majority Shareholder of the Company, the Executive shall hold the
honorary title of Chairman Emeritus, but shall have no further
employment duties or responsibilities hereunder.
3. DUTIES. The Executive shall serve as the Chairman of the Company, with
such duties and responsibilities as are commensurate with such position
as described in the bylaws of the Company, and, subject to election as
a director by the Company's stockholders, shall also act as the
chairman of the Company's Board of Directors. The Executive shall
report to the Board of Directors and shall be the senior executive
officer of the Company, with all power, authority and responsibilities
customarily attendant to such position, including supervision of the
Chief Executive Officer and President of the Company in the performance
of his duties and responsibilities with respect to all operations and
management of the Company, its subsidiaries and any entity controlled
by the Company (collectively, the "Xxxxxx Group").
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The Executive shall render his services under this Agreement loyally
and faithfully, to the best of his abilities and in substantial
conformance with all laws and all written Company rules and policies
which apply to senior executives and of which the Executive has notice.
Except as expressly modified herein, the Executive shall be subject to
all of the Company's written policies, including conflicts of interest,
as well as the following:
(a) The Executive will comply with all Company and professional
standards governing the Executive's objectivity in the
performance of the Executive's duties. The Executive will not,
without the prior approval of the Compensation Committee of
the Company's Board of Directors (the "Compensation
Committee"), accept any gift, compensation or gratuity (which
excludes business meals and entertainment received by the
Executive in the ordinary course of business) from any person
or entity with which the Xxxxxx Group or any of their
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. The Executive
will not, without the prior written approval of the
Compensation Committee, take advantage of any business
opportunity or situation or engage in any enterprise or
venture of which the Xxxxxx Group has an interest on his or
her own behalf, if said business opportunity or situation,
enterprise or venture is related in any material way to the
business of the Xxxxxx Group.
(b) In performing his duties under this Agreement, the Executive
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 the Executive.
4. (a) BASE SALARY. The Company shall pay the Executive a base
salary (the "Base Salary"), to be paid on the same payroll
cycle as other executive officers of the Company, at an
initial annual rate of $600,000. The Base Salary shall be
increased annually during the Term of Employment, effective on
each anniversary of the Effective Date, by an amount equal to
10% of the Base Salary in effect for the most recently ended
twelve months (i.e., cumulatively).
(b) ANNUAL BONUS. In addition to the Base Salary, the Executive
shall be eligible to earn a bonus for each of the whole or
partial calendar years during the Term of Employment, subject
to (i) the satisfaction of annual performance benchmarks for
"minimum revenues," "target revenues" or "excess revenues,"
established by the Compensation Committee of the Board of
Directors, and (ii) the Executive being actively employed by
the Company on December 31 of such calendar year (except for
any bonus for the partial calendar year during which the Term
of Employment expires or is terminated), unless the
Executive's employment has terminated due to the Executive's
death, Good Reason, Disability or other than for Good Cause,
pursuant to subparagraphs (a), (c), (d) or (e) of Paragraph 8.
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The bonus shall be equal to the following percentages of the
Base Salary paid to the Executive in the preceding calendar
year: (A) 50% of Base Salary upon the attainment of the
"minimum revenues" benchmark; (B) 100% of Base Salary upon the
attainment of the "target revenues" benchmark; or (C) 200% of
Base Salary upon the attainment of the "excess revenues"
benchmark. The benchmarks shall be established by the
Compensation Committee. Any bonus compensation earned shall be
payable within the first six months of the calendar year
following the year to which the bonus applies, and will be
prorated for any partial calendar year during the Term of
Employment on the basis of the Executive's period of service
during such year.
(c) OPTIONS. The Company shall grant the Executive non-qualified
stock options (the "Options") to purchase an aggregate of
1,000,000 shares of Class A Common Stock of the Company, which
shall become exercisable (i.e., "vest") at a rate of 333,333
shares on each anniversary of the Effective Date (333,334 on
the third such anniversary) during the Term of Employment and
expiring on the tenth anniversary of the Effective Date. The
option exercise prices shall be (i) for Options vesting on the
first anniversary of the Effective Date, $10.00 per share,
(ii) for Options vesting on the second anniversary of the
Effective Date, the lower of $14 per share or the Fair Market
Value of the Class A Common Stock as of the anniversary of the
Effective Date in 2000, and (iii) for Options vesting on the
third anniversary of the Effective Date, the lower of $18 per
share or the Fair Market Value of the Class A Common Stock on
the anniversary of the Effective Date in 2001. The Options
shall be governed by the terms of a Stock Option Agreement,
substantially in the form attached hereto as Exhibit A, which
the Executive agrees to execute upon grant of the Options.
Notwithstanding any other provision of this Agreement, if, at
any time after the Executive ceases to be the FCC Single
Majority Shareholder of the Company, the Executive's
employment under this Agreement is terminated other than by
reason of Executive's death or Disability and other than for
Good Cause (each as defined below), then the Executive shall
retain all Options which have vested prior to the date of
termination and any unvested Options shall be forfeited. For
purposes of the Options, the "Fair Market Value" of the Class
A Common Stock on any date shall be equal to the arithmetic
average of the closing sale prices of the Class A Common Stock
for the 45 consecutive trading days ending on the trading day
immediately preceding the date of determination on the
principal securities exchange on which the Class A Common
Stock is listed for trading.
(d) WITHHOLDING. The Company will have the right to withhold from
payments otherwise due and owing to the Executive, an amount
sufficient to satisfy any required federal, state, and/or local
income and payroll taxes and any other amounts required by law
to be withheld.
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5. EMPLOYEE BENEFITS. During the Term of Employment, the Executive shall
be eligible to participate, on the same basis as other members of the
Company's senior executive group, in all employee benefit plans and
arrangements sponsored or maintained by the Company for the benefit of
its employees generally and for its senior executive group (which for
this purpose means any one or more senior executives), including,
without limitation, the Supplemental Executive Retirement Plan, all
group insurance plans (term life, medical and disability) and
retirement plans, as long as any such plan or arrangement remains
generally applicable to its senior executive group.
6. BUSINESS EXPENSES. The Executive shall be reimbursed for all reasonable
expenses incurred by him in the discharge of his duties, including, but
not limited to, expenses for entertainment and travel, provided the
Executive shall account for and substantiate all such expenses in
accordance with the Company's written policies for its senior executive
group (which for this purpose means any one or more senior executives).
The Executive shall be entitled to the use of Company aircraft in
accordance with past practices, and to first class commercial air
transportation and hotel accommodations.
7. FREEDOM TO CONTRACT. The Executive represents and warrants that he has
the right to enter into this Agreement, is eligible for employment by
the Company and that no other written or verbal agreements exist which
would be in conflict with or prevent performance of any portion of this
Agreement. The Executive further agrees to hold the Company harmless
from any and all liability arising out of any prior contractual
obligations entered into by the Executive. The Executive represents and
warrants that he has not made and will not make any contractual or
other commitments that would conflict with or prevent his performance
of any portion of this Agreement or conflict with the full enjoyment by
the Company of the rights herein granted.
8. TERMINATION. Notwithstanding the provisions of Paragraph 2 of this
Agreement, the Executive's employment under this Agreement and the Term
of Employment hereunder shall terminate on the earliest of the
following dates:
(a) DEATH. Upon the date of the Executive's death. In such event,
the Company shall pay to the Executive's legal representatives
or named beneficiaries (as the Executive may designate from
time to time in a writing delivered to the Company), (x) the
Executive's Base Salary in effect on the date of death for an
eighteen (18) month period following the date of the
Executive's death (payable in accordance with the Company's
normal payroll practices during such period), (y) any bonus
earned but not paid as of the date of death, and (z) a pro
rata bonus for the calendar year in which the Executive died
equal to the bonus the Executive would have earned for such
year if he had remained actively employed with the Company
through the end of such calendar year and had continued to
receive his Base Salary through the end of such period
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multiplied by a fraction, the numerator of which shall be the
total number of days of the calendar year which have lapsed as
of the date of his death and the denominator of which is 365.
The Executive's estate and legal representatives,
beneficiaries and assigns shall retain all Options which shall
fully and immediately vest as of the date of the Executive's
death.
(b) GOOD CAUSE. Subject to the notice and cure provisions set
forth below, upon the date specified in a written notice from
the Board of Directors terminating the Executive's employment
for "Good Cause," consistent with the provisions of this
subparagraph (b). The term "Good Cause" as used in this
Agreement shall mean the occurrence of any of the following
events:
(i) the Executive's conviction of the commission of (A) a
felony, (B) any criminal act with respect to the Executive's
employment (including any criminal act involving a violation
of the Communications Act of 1934, as amended, or regulations
promulgated by the FCC), or (C) any act contrary to law that
materially threatens to result in suspension, revocation, or
adverse modification of any FCC license of any broadcast
station owned by the Xxxxxx Group or that would subject any
such broadcast station to a material fine or forfeiture;
(ii) the Executive's demonstrable gross negligence in taking
any action, or omitting to take any action, which act or
omission would cause any member of the Xxxxxx Group to be in
default under any material contract, lease or other agreement;
(iii) the Executive's dependence on alcohol or illegal drugs;
(iv) the Executive's willful failure or refusal to perform
according to or follow the lawful written policies and
directives of the Board of Directors (which shall be
consistent with Paragraph 3);
(v) the Executive's misappropriation, conversion or
embezzlement of the material assets of any member of the
Xxxxxx Group;
(vi) the Executive's willful material breach of this
Agreement, including engaging in action in violation of
Paragraph 10;
(vii) the Executive making any representation in this
Agreement which is false in any material respect when made; or
(viii) the Executive's voluntary termination of his employment
without Good Reason (as defined below).
Except in the event of Executive's voluntary termination of
his employment, should the Company propose to terminate the
Executive's employment for Good Cause under this subparagraph
(b), the Company shall notify the Executive in writing of its
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intention to terminate his employment and the specific
reason(s) therefor, and the Executive, on at least ten
business days' notice, shall have an opportunity to respond
thereto in writing; and if the basis for such termination is
susceptible of being cured by the Executive, the Company shall
afford the Executive a period of at least ten additional
business days to effect such cure, and the Executive's
employment may not be terminated until such period has expired
and the Executive has failed to effect such cure.
In the event of termination for Good Cause, the Company will
be released from all further obligation to the Executive under
this Agreement, except for (i) the payment of such Base Salary
as may have been earned but not paid prior to termination,
(ii) Executive's right to exercise any vested stock Options,
pursuant to his Stock Option Agreement, and (iii) any accrued
benefits under the Company's employee benefit plans in
accordance with the terms of those plans.
(c) GOOD REASON. Upon the date specified in a written notice from
the Executive terminating his employment for "Good Reason",
consistent with the provisions of this subparagraph (c). For
purposes of this subparagraph (c), "Good Reason" shall mean
that the Company has breached any of the material terms,
conditions and provisions of this Agreement. In such case, the
Executive shall notify the Company in writing of his intention
to terminate his employment and the specific reason(s)
therefor, and the Company, on at least ten business days'
notice, shall have an opportunity to respond thereto in
writing; and if the basis for such termination is susceptible
of being cured by the Company, the Executive shall afford the
Company a period of at least ten additional business days to
effect such cure, and the Executive may not terminate his
employment until such period has expired and the Company has
failed to effect such cure. In the event of such termination
for Good Reason, the Company shall (w) continue to pay the
Executive the Base Salary, including annual increases therein,
for the remainder of the original Term of Employment, or the
remainder of any one year renewal thereof, if termination
occurs during such renewal period, payable in accordance with
the Company's normal payroll practices during such period, (x)
pay the Executive any bonus earned but not paid as of the date
of termination, (y) pay the Executive any other bonus the
Executive would have earned under subparagraph 4(b) had he
remained actively employed through the original Term of
Employment or the balance of any one year renewal thereof, if
termination occurs during such renewal period (subject to the
Company's satisfaction of the benchmarks for the relevant
calendar years), and (z) provide continued coverage under any
Company employee benefit plans in which the Executive
participates as of the date of termination (on the same terms
and conditions then in effect) through the original Term of
Employment or the balance of any one year renewal thereof, if
termination occurs during such renewal period, and, except as
expressly provided in Paragraph 4(c) above, the Options shall
vest as provided in Paragraph 4(c) as though Executive's
employment had not been terminated.
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(d) OTHER THAN GOOD CAUSE. Upon the date specified in a written
notice from the Board of Directors terminating the Executive's
employment for any reason other than Good Cause, death or
Disability (as defined in Paragraph 8(e) below), or in the
event no date is specified in the notice, upon the date on
which the notice is delivered to the Executive. In the event
of the termination of the Executive's employment pursuant to
this subsection (d), the Company shall (w) continue to pay the
Executive the Base Salary, including annual increases therein,
for the remainder of the original Term of Employment or the
remainder of any one year renewal thereof, if termination
occurs during such renewal period (payable in accordance with
the Company's normal payroll practices during such period),
(x) pay the Executive any bonus earned but not paid as of the
date of termination, (y) pay the Executive any other bonus the
Executive would have earned under subparagraph 4(b) had he
remained actively employed through the original Term of
Employment or the remainder of any one year renewal thereof,
if termination occurs during such renewal period (subject to
the Company's satisfaction of the benchmarks for the relevant
calendar years), and (z) provide continued coverage under any
Company employee benefit plans in which the Executive
participates as of such date of termination (on the same terms
and conditions then in effect) through the original Term of
Employment or the remainder of any one year renewal thereof,
if termination occurs during such renewal period, and, except
as expressly provided in Paragraph 4(c) above, the Options
shall vest as provided in Paragraph 4(c) as though Executive's
employment had not been terminated.
(e) DISABILITY. Upon the date specified in a written notice from
the Board of Directors terminating the Executive's employment
for "Disability." For purposes of this Agreement, the term
"Disability" shall mean that, due to illness or injury, the
Executive is unable to perform and exercise the essential
functions required of him under this Agreement, for either (i)
four consecutive months or longer, or (ii) a total of four
months or longer in any twelve month period. The Compensation
Committee shall determine whether the Executive has a
Disability based on written physician reports provided to the
Compensation Committee under the following procedures. The
Compensation Committee and the Executive shall each choose a
physician to supply a report regarding whether the Executive
should be deemed to have a Disability under the terms of this
subparagraph 8(e). If the reports of these two physicians
reach contrary conclusions regarding whether the Executive
should be deemed to have a Disability, the two physicians
shall select a third physician to prepare and provide to the
Compensation Committee another report regarding whether the
Executive should be deemed to have Disability under the terms
of this subparagraph 8(e). The Executive shall cooperate fully
with each such physician preparing a report to the
Compensation Committee under the terms of this subparagraph
8(e) by, among other things, executing any necessary releases
to grant such physician access to any and all of Executive's
medical records reasonably deemed by such physician to be
relevant to such determination, authorizing or requiring
physicians and any other health care professionals who have
treated or dealt with Executive to consult with such physician
regarding any matter reasonably deemed by such physician to be
relevant to such determination and submitting to such physical
or mental examinations or testing as may be reasonably deemed
by such physician to be relevant to such determination. The
Parties acknowledge and agree that any determination by the
Compensation Committee that the Executive has a Disability,
which is used as a basis for termination of the Executive's
employment pursuant to this Paragraph 8(e), shall be subject
to the arbitration provisions of Paragraph 12 below. In the
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event of the termination of the Executive's employment by
reason of Executive's Disability, the Company shall (x)
continue to pay the Executive the Base Salary, including
annual increases therein, for the remainder of the original
Term of Employment or the remainder of any one year renewal
thereof, if termination occurs during such renewal period
(payable in accordance with the Company's normal payroll
practices during such period), (y) pay the Executive any bonus
earned but not paid as of the date of termination, and (z)
provide continued coverage under any Company employee benefit
plans in which the Executive participates as of such date of
termination (on the same terms and conditions then in effect)
through the original Term of Employment or the remainder of
any one year renewal thereof, if termination occurs during
such renewal period, and the Options shall vest as provided in
Paragraph 4(c) above as though Executive's employment had not
been terminated.
(f) TERM. Upon the expiration of the Term of Employment. In the
event of the termination of the Executive's employment upon
the expiration of the Term of Employment, the Company shall be
obligated to pay the Executive a prorated portion of any bonus
the Executive would have earned under subparagraph 4(b) had he
remained actively employed through the calendar year in which
the Term of Employment expires, equal to the bonus otherwise
payable multiplied by a fraction, the numerator of which is
the number of days in the relevant calendar year included in
the Term of Employment and the denominator of which is 365
(subject to the Company's satisfaction of the benchmarks for
such calendar year which are relevant to the bonus
calculation), and will be released from all further obligation
to the Executive pursuant to this Agreement, except for such
compensation as may have been earned but not paid prior to
termination.
Following the termination of the Term of Employment and the Executive's
employment under this Agreement, the Company will have no further
liability to the Executive hereunder and no further payments will be
made to him, except (i) as provided in subparagraphs (a) through (f)
above, (ii) to the extent that the Executive qualifies for benefits
under any employee benefit plan available to the Executive as provided
in Paragraph 5, and (iii) for the Executive's rights under the Stock
Option Agreement. In the event the Executive's employment is terminated
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for Good Reason, other than for Good Cause or for Disability, pursuant
to subparagraphs 8(c),(d) or (e), respectively, the Executive's right
to continue to participate in any Company employee benefit plan shall
not be affected by the Executive's termination of employment, except
(i) the Company may substitute for its contribution to any
tax-qualified retirement plan on behalf of the Executive, an equivalent
contribution to a non-qualified retirement plan, and (ii) the Company
may terminate any welfare plan coverage to the extent the applicable
insurance carrier refuses to continue to provide such coverage under
the group insurance policy, in which event the Company shall have the
option of providing the Executive with comparable coverage under
individual insurance policies, to the extent such policies are
available, provided that if the Executive's employment is terminated by
the Company for other than Good Cause pursuant to Paragraph 8(d) or the
Executive terminates his employment with the Company for Good Reason,
the Company shall be obligated to continue to provide benefits
comparable to such welfare plan coverage regardless of whether or not
insurance policies are available to provide such benefits. The Company
shall not have the right to reduce any payments the Executive is
entitled to hereunder by any payments the Executive receives from any
other source of employment (whether before, during or after the Term of
Employment), and the Executive shall not have any duty to mitigate the
damages the Company will incur in making any payments hereunder to the
Executive following his termination of employment with the Company.
Upon the date of the termination of the Executive's employment pursuant
to subparagraph (c), (d) or (e) above, in consideration of (i) the
payments to be made to the Executive pursuant to such subparagraph and
as a condition to the payment thereof, and (ii) the Company's
undertaking to make no derogatory or disparaging statement about the
Executive to any unrelated (to the Xxxxxx Group) third party, the
Executive acknowledges that all such payments, if made in accordance
with this Agreement, shall constitute complete satisfaction of all
obligations owed by the Company to the Executive pursuant to this
Agreement (other than any benefits Executive has accrued under the
Company's employee benefit plans) and shall further constitute the
Executive's sole remedy against the Company; the Executive agrees that
if this provision becomes applicable he will execute a general release
to reflect these terms.
9. INSURANCE. If the Company desires at any time or from time to time
during the Term of Employment to apply in its own name or otherwise,
but at its own expense, for life, health, accident or other insurance
covering the Executive, the Company may do so and may take out such
insurance for any sum which the Company may deem necessary to protect
its interests hereunder. The Executive will have no right, title or
interest in or to such insurance, but will, nevertheless, assist the
Company in procuring and maintaining the same by submitting from time
to time to customary medical, physical and other examinations and
signing such applications, statements and other instruments as may
reasonably be required by the insurance company or companies issuing
such policies. The Company acknowledges that the Executive has made no
representation that he is insurable for these purposes.
10. RESTRICTIVE COVENANTS.
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(a) FCC COMPLIANCE. The Executive represents that he does not
currently have, and warrants that during the Term of
Employment he will not have, or be involved with any
investment ownership interest or outside activity (such as a
board membership) which would result in either he or the
Company being in violation of the rules and regulations of the
FCC or the Communications Act of 1934, as amended.
(b) EXCLUSIVE SERVICES. During the Executive's employment with the
Company, the Executive shall not: (i) engage in any other
business activity that would interfere with his
responsibilities or the performance of his duties under this
Agreement; (ii) have any interest or involvement, directly or
indirectly, in any capacity (including as employee, director,
consultant, owner, lessor, manager, or lender), in any
business enterprise that competes with the Xxxxxx Group or
that otherwise has interests in conflict with the Xxxxxx
Group, including without limitation, any television broadcast,
cable television network, or television programming service.
The Executive will not, during the Term of Employment, solicit
offers for the Executive's services, negotiate with potential
employers, enter into any oral or written agreement for the
Executive's services, give or accept any option for the
Executive's services, enter into the employment of, perform
services for, or grant or receive future rights of any kind
relating to the Executive's services to or from any person or
entity whatsoever other than the Company.
(c) RESTRICTION ON COMPETITION. For a period of one year after
termination of the Executive's employment pursuant to this
Agreement (the "Restricted Period"), the Executive shall not,
and shall not permit any of his affiliates to, directly or
indirectly, (i) acquire a Material Interest in any broadcast
television station license or any entity owning, operating or
controlling one or more broadcast television stations, or (ii)
acquire any interest in any broadcast television station
license or any such entity, in conjunction with which
Executive or any of his affiliates controls or renders
services to the station owner, including service as an
officer, partner, consultant or employee thereof, or is
otherwise actively involved with the business of such station
owner. A "Material Interest" shall consist of the beneficial
ownership of 10% or more of the common equity interests
(including securities convertible into or exercisable for
common equity) of a person.
(d) EXCEPTIONS. None of the provisions of this Paragraph 10 shall
prohibit the Executive from owning a minority interest in DP
Media, Inc., an owner of multiple broadcast television
stations, or prohibit the Executive's family members and their
spouses from owning interests in DP Media. The Executive may
own up to one percent (1%) of the issued and outstanding
common stock of any entity whose common stock is traded on a
nationally recognized stock exchange, and may, with the prior
approval of the Board of Directors of the Company (which shall
not be unreasonably withheld), sit on the boards of directors
of other entities, and such activities shall be deemed not to
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be violations of the provisions of subparagraphs 10(b) and (c)
above.
(e) NONINTERFERENCE. The Executive agrees that from the date of
this Agreement through the first anniversary of the date the
Executive's employment with the Company terminates, the
Executive 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:
(i) 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; or
(ii) 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.
(f) CONFIDENTIALITY. The Executive covenants and agrees that both
during the Term of Employment and thereafter he will not
disclose to any third party or use in any way (other than in
connection with the performance of his duties under this
Agreement) any confidential information, business secrets, or
business opportunity of the Company or its affiliates,
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 the
Executive's employment with the Company for any reason, or at
any other time upon the Company's request, the Executive will
return to the Company or destroy all memoranda, notes, records
or other documents compiled by the Executive or made available
to the Executive during the Term of Employment concerning the
business of the Company or its affiliates, all other
confidential information and all personal property of the
Company or its affiliates, 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.
(g) ENFORCEMENT. The Executive agrees that the restrictive
covenants contained in this Paragraph 10 are a material part
of the Executive's obligations under this Agreement for which
the Company has agreed to compensate the Executive as provided
in this Agreement. The Executive agrees that the injury the
Company will suffer in the event of the breach by the
Executive of any clause of this Paragraph 10 will cause the
Company irreparable injury that cannot be adequately
compensated by monetary damages alone. Therefore, the
Executive agrees that the Company, without limiting any other
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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 the Executive's
failure to comply with the terms and conditions of Paragraph
10.
11. INTANGIBLE PROPERTY. The Executive will not at any time during or after
the Term of Employment have or claim any right, title or interest in
any trade name, trademark, or copyright belonging to or used by any
entity in the Xxxxxx Group 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 programming, advertising, broadcasting, or
promotion of any entity of the Xxxxxx Group, whatever the Executives'
involvement with such matters may have been, and whether procured,
produced, prepared, published or broadcast in whole or in part by the
Executive, it being the intention of the Parties that the Executive
shall, and hereby does, recognize that the Xxxxxx Group now has and
shall hereafter have and retain the sole and exclusive rights in any
and all such trade names, trademarks, copyrights (all the Executive's
work in this regard being a work for hire for the Company under the
copyright laws of the United States), character names, material and
matter as described above; provided that nothing in this Agreement
shall be construed to limit the Executive from using his personal name
in connection with any business venture or in any other manner
whatsoever. Should the Company and its successors, assigns and
licensees cease material use for a period of six months of the names
and marks PAX, PAXNET and other marks currently or in the future used
by the Company and including the letters "PAX," then the Company and
its successors and assigns shall assign to the Executive all licenses
with respect to such names and marks and transfer and assign to the
Executive all of their respective right, title and interest in and to
said names and marks, all registrations thereof and all goodwill
associated therewith. The Executive shall cooperate fully with the
Company during his employment and thereafter in the securing of trade
name, patent, trademark or copyright protection or other similar rights
in the United States and in foreign countries and shall give evidence
and testimony and execute and deliver to the Company all papers
reasonably requested by it in connection therewith, provided however
that the Company shall reimburse the Executive for reasonable expenses
related thereto.
12. ARBITRATION. Any dispute regarding this Agreement shall be decided by
arbitration in West Palm Beach, Florida, in accordance with the
Expedited Arbitration Rules of the American Arbitration Association
then obtaining unless the Parties mutually agree otherwise; and,
provided further, that both Parties will be entitled to all rights of
discovery in connection with such arbitration, including, without
limitation, all discovery rights described in the Florida Rules of
Civil Procedure. Any such arbitration shall be submitted to three
arbitrators from the Panel of Arbitrators of the American Arbitration
Association. The three arbitrators shall be selected in the following
fashion: (i) the Executive and the Company each shall select an
arbitrator from the Panel of Arbitrators of the American Arbitration
Association; and (ii) such two arbitrators by mutual agreement shall
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select a third arbitrator from such Panel of Arbitrators. This
undertaking to arbitrate shall be specifically enforceable. The
decision rendered by the arbitrator will be final and judgment may be
entered upon it in accordance with appropriate laws in any court having
jurisdiction thereof. Notwithstanding the foregoing, the Company may
seek injunctive relief in accordance with Paragraph 10 of this
Agreement.
13. INDEMNIFICATION. The Company shall indemnify and hold the Executive
harmless, to the maximum extent permitted by law, against claims,
judgments, fines, amounts paid in settlement of and reasonable expenses
(including reasonable attorneys fees) incurred by the Executive in
connection with the defense of any claim, action or proceeding in which
he is a party by reason of his position with the Company, provided such
liability does not arise as a result of the Executive's gross
negligence. The Executive shall notify the Company promptly upon
learning of any claim, action or proceeding for which the Executive
intends to assert his right to indemnification under this Paragraph,
and the Company shall have the right to control the defense of any such
claim, action or proceeding on behalf of the Executive, including any
decision regarding the terms (if any) of settlement of such claim,
action or proceeding, provided that unless otherwise agreed to by the
Executive, any such settlement shall include statements that the
Executive does not admit any wrongdoing and the Company does not admit
any wrongdoing on the part of the Executive. The Company shall not
agree to any settlement of a claim, action or proceeding for which it
is indemnifying the Executive until it first has informed and consulted
with the Executive regarding the terms of such settlement, but the
Company shall not need the consent of the Executive to such settlement
(so long as the settlement complies with the immediately preceding
sentence). The Company's indemnification of the Executive under this
Paragraph shall indefinitely survive the termination or expiration of
this Agreement.
14. MISCELLANEOUS.
(a) WAIVER OR MODIFICATION. Any waiver by either Party of a breach
of any provision of this Agreement shall not operate as, or to
be, construed to be a waiver of any other breach of such
provision of this Agreement. The failure of a Party to insist
upon strict adherence to any term of this Agreement on one or
more occasions shall not be considered a waiver or deprive
that Party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
Neither this Agreement nor any part of it may be waived,
changed or terminated orally, and any waiver, amendment or
modification must be in writing and signed by each of the
Parties. Any waiver of any right of the Company hereunder or
any amendment hereof shall require the approval of the
Compensation Committee of the Board of Directors. Until such
approval or waiver has been obtained, no such waiver or
amendment shall be effective.
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(b) SUCCESSORS AND ASSIGNS. The rights and obligations of the
Company under this Agreement shall be binding on and inure to
the benefit of the Company, its successors and permitted
assigns. The rights and obligations of the Executive under this
Agreement shall be binding on and inure to the benefit of the
heirs and legal representatives of the Executive. Neither Party
may assign this Agreement without the prior written consent of
the other.
(c) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall, when executed, be deemed to
be an original and all of which shall be deemed to be one and
the same instrument.
(d) GOVERNING LAW. This Agreement will be governed and construed
and enforced in accordance with the laws of the State of
Florida, without regard to its conflicts of law rules.
(e) ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the Parties relating to the subject matter of
this Agreement and supersedes all other prior written or oral
agreements, understandings or arrangements with respect to such
subject matter, including, without limitation, the employment
agreement between the Executive and the Company dated June 30,
1994. The Executive and the Company each acknowledges that, in
entering into this Agreement, he/it does not rely on any
statements or representations not contained in this Agreement.
(f) SEVERABILITY. Any term or provision of this Agreement which is
determined to be invalid or unenforceable by any court of
competent jurisdiction in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction and such
invalid or unenforceable provision shall be modified by such
court so that it is enforceable to the extent permitted by
applicable law.
(g) NOTICES. Except as otherwise specifically provided in this
Agreement, all notices and other communications required or
permitted to be given under this Agreement shall be in writing
and delivery thereof shall be deemed to have been made (i)
three business days following the date when such notice shall
have been deposited in first class mail, postage prepaid,
return receipt requested, to any comparable or superior postal
or air courier service then in effect, or (ii) transmitted by
hand delivery to, or (iii) transmitted by telegram, telex,
telecopier or facsimile transmission (with receipt confirmed
by telephone), to the party entitled to receive the same, at
the address indicated below or at such other address as such
party shall have specified by written notice to the other
party hereto given in accordance herewith:
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if to the Company: Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
Attn: Chief Executive Officer
(tel) (000) 000-0000
(fax) (000) 000-0000
with a copy to: Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: General Counsel
(tel) (000) 000-0000
(fax) (000) 000-0000
if to the Executive: Xxxxxx X. Xxxxxx
000 X. Xxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
(tel) (000) 000-0000
(fax) (000) 000-0000
(h) TITLES. The titles and headings of any paragraphs in this
Agreement are for reference only and shall not be used in
construing the terms of this Agreement.
(i) NO THIRD PARTY BENEFICIARIES. This Agreement does not create,
and shall not be construed as creating, any rights enforceable
by any person not a party to this Agreement.
(j) SURVIVAL. The covenants, agreements, representations and
warranties contained in this Agreement shall survive the
termination of the Term of Employment and the Executive's
termination of employment with the Company for any reason.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties as of the first date written above.
XXXXXX X. XXXXXX
--------------------------------
XXXXXX COMMUNICATIONS CORPORATION
BY: /s/ XXXXXXX XXXXXXXX
-------------------------------
Xxxxxxx Xxxxxxxx
President and CEO
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