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EXHIBIT 10.1
EXECUTION COPY
EMPLOYMENT AGREEMENT
WITH
XXXX X. XXXXXXX
THIS EMPLOYMENT AGREEMENT (this "Agreement") is effective as of April
24, 2000, by and between CLASSIC COMMUNICATIONS, INC., a Delaware corporation
("Classic"), CLASSIC CABLE, INC., a Delaware corporation (collectively, the
"Employer"), and XXXX X. XXXXXXX (the "Employee").
RECITALS:
The Employer wishes to take steps to ensure that the Employer will
continue to have the Employee's services available to the Employer and its
subsidiaries, on the terms and conditions hereinafter set forth, and the
Employee is willing to accept such employment on such terms and conditions.
In consideration of the foregoing, the mutual provisions contained
herein, and for other good and valuable consideration, the parties agree with
each other as follows:
1. Employment. The Employer hereby employs the Employee, and the
Employee hereby accepts such employment, upon the terms and subject to the
conditions set forth in this Agreement.
2. Term. Unless the Employee's employment shall sooner terminate
pursuant to Sections 7 or 8 hereof, the term of employment under this Agreement
shall commence on April 24, 2000 (the "Commencement Date") and shall continue
through April 24, 2001 (such initial one-year term, together with any extensions
thereof in accordance with the next sentence of this Section 2 referred to as
the "Term"). The initial term of Employee's employment hereunder shall
thereafter be deemed to be automatically extended, upon the same terms and
conditions, for successive periods of one (1) year each until either party to
this Agreement gives the other written notice of termination of employment or
until the death of the Employee. The period commencing on the Commencement Date
and ending on the date of termination of Employee's employment or the death of
the Employee shall be referred to as the "Employment Period."
3. Compensation; Reimbursement.
(a) The Employer shall pay to the Employee as compensation for
all services rendered by the Employee during the Employment Period a base annual
salary of $300,000 per year (the "Basic Salary"), or such other amount as the
parties may agree on from time to time, payable in equal monthly installments or
in other more frequent installments, as determined by the Employer. The board of
directors of the Employer (the "Board of Directors") shall have the right to
increase the Employee's compensation from time to time by action of the Board of
Directors. In addition, the Board of Directors, in its sole discretion, may,
with respect to any
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year during the Employment Period, award a bonus or bonuses to the Employee in
addition to the bonus provided for in Section 3(b).
(b) In addition to the Basic Salary paid pursuant to Section
3(a), the Employer shall pay to the Employee a bonus for the calendar year
ending December 31, 2000 in an amount equal to 50% of the Basic Salary paid to
the Employee during the period beginning on the Commencement Date and ending on
December 31, 2000 (specifically, $103,125), provided Employee is employed by the
Employer as of such date. The bonus payable pursuant to this Section 3(b) shall
be paid to employee on a date consistent with the payment of bonuses for the
year 2000 to other senior officers of the Company. The Employee shall be
entitled to receive bonuses for the calendar years beginning after December 31,
2000 in accordance with bonus programs established for the Company's senior
officers by the compensation committee of the Board of Directors.
(c) The Employer shall reimburse the Employee for all
reasonable expenses incurred by the Employee in the performance of his duties
under this Agreement; provided, however, that the Employee must furnish to the
Employer an itemized account, satisfactory to the Employer, in substantiation of
such expenditures.
(d) The Employee shall be entitled to the use of a corporate
vehicle and such fringe benefits, including, but not limited to, medical, dental
and other insurance benefits, as may be provided from time to time by the
Employer to other senior officers of the Employer. The Employee shall also be
entitled to participate in the Employer's 401(k) plan.
4. Duties. The Employee is engaged as the Chief Operating Officer of
the Employer and of the Employer's various subsidiaries. The Chief Operating
Officer shall be the chief administrative officer of the Employer and its
subsidiaries and shall have general charge of the business, affairs and property
of the Employer and its subsidiaries, and control over their officers (other
than the Chief Executive Officer and President and the Chief Financial Officer),
agents and employees. The Chief Operating Officer shall see to it that all
orders and resolutions of the Board of Directors (or any duly authorized
committee thereof), the Chairman of the Board of Directors and the Chief
Executive Officer are carried into effect. In addition, the Employee shall have
such other duties and hold such other offices as may from time to time be
reasonably assigned to him by the Chief Executive Officer and President of the
Employer.
5. Extent of Services; Vacations and Days Off.
(a) During the Employment Period, the Employee shall devote
substantially all of his time, energy and attention during regular business
hours to the benefit and business of the Employer in performing his duties
pursuant to this Agreement.
(b) The Employee shall be entitled to vacations with pay and
to such personal and sick leave with pay in accordance with the policy of the
Employer as may be established from time to time by the Employer and applied to
other senior officers of the Employer.
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6. Facilities. The Employer shall provide the Employee with a fully
furnished office, and the facilities of the Employer shall be generally
available to the Employee in the performance of his duties pursuant to this
Agreement.
7. Termination on Death or Incapacity; Effect of Illness.
(a) If the Employee dies during the Term, the Employer shall
pay to the estate of the Employee the Basic Salary that would have otherwise
been paid to the Employee plus any bonus compensation awarded, but not yet paid,
through the end of the month in which his death occurs. The Employer shall have
no additional financial obligation under this Agreement to the Employee or his
estate. After receiving the payments provided in this subparagraph (a), the
Employee and his estate shall have no further rights under this Agreement.
(b) The term "permanent disability" as used in this Agreement
shall mean the inability of the Employee, as determined by the Board of
Directors, by reason of physical or mental disability to perform the duties
required of him under this Agreement for a period of ninety (90) days in any
one-year period. Successive periods of disability, illness or incapacity will be
considered separate periods unless the later period of disability, illness or
incapacity is due to the same or related cause and commences less than six (6)
months from the ending of the previous period of disability. Upon such
determination, the Board of Directors may terminate the Employee's employment
under this Agreement upon ten (10) days' prior written notice. Upon such
termination of Employee's employment, the Employer shall pay to the Employee the
Basic Salary that would have otherwise been paid to the Employee plus any bonus
compensation awarded, but not yet paid, through the end of the month in which
Employee's termination of employment occurs. If any determination of the Board
of Directors with respect to permanent disability is disputed by the Employee,
the parties hereto agree to abide by the decision of a panel of three
physicians. The Employee and the Employer shall each appoint one member, and the
third member of the panel shall be appointed by the other two members. The
Employee agrees to make himself available for and to submit to examinations by
such physicians as may be directed by the Employer. Failure to submit to any
such examination shall constitute a breach of a material part of this Agreement.
(c) During any period of disability, illness or incapacity
during the term of this Agreement which renders the Employee at least
temporarily unable to perform the services required under this Agreement for a
period which does not exceed ninety (90) days in any one-year period, the
Employee shall receive the compensation payable under Section 3(a) of this
Agreement, less any benefits received by him under any disability insurance
carried by or provided by the Employer.
8. Other Terminations.
(a) (i) The Employee may terminate his employment hereunder
upon giving not more than thirty (30) days' nor less than fifteen (15) days'
prior written notice to the Employer.
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(ii) If the Employee gives notice pursuant to Section 8(a)
above, the Employer shall have the right to relieve the Employee, in whole or in
part, of his duties under this Agreement (without reduction in compensation
through the termination date set forth in the notice to the Employer).
(b) The Employer may terminate the Employee's employment
hereunder at any time, without prior notice and with or without Good Cause.
(c) If the Employer shall terminate the employment of the
Employee without Good Cause (as defined below), the Employee shall have the
nonforfeitable right to receive the Basic Salary, any awarded but unpaid bonus,
matching 401(k) contributions consistent with past practice (to the extent
permitted by such 401(k) plan and by law), health insurance (to the extent
permitted by such health insurance plans and by law) and other existing
benefits, paid monthly, to which he is entitled for a period of one-year from
the effective date of Employee's termination; provided that, notwithstanding
such termination of employment, the Employee's covenants set forth in Sections
9, 10 and 11 are intended to and shall remain in full force and effect.
(d) (i) If the employment of the Employee is terminated for
Good Cause, or if the Employee voluntarily terminates his employment, the
Employer shall pay to the Employee any Basic Salary earned and bonus awarded but
unpaid prior to the effective date of such termination. Under such
circumstances, such payment shall be in full and complete discharge of any and
all liabilities or obligations of the Employer to the Employee hereunder, and
the Employee shall be entitled to no further benefits under this Agreement.
(ii) "Good Cause" shall include:
(1) the Employee's conviction of a criminal offense
that has a material adverse effect upon the business or reputation or the
Employer or any affiliate of the Employer;
(2) commission by the Employee of a material breach
of his duty of loyalty to the Employer, any affiliate of the Employer, or
Sections 10 or 11 of this Agreement;
(3) the willful failure by the Employee to
substantially perform the Employee's duties specified hereunder or such other
duties as may be reasonably defined by the Chief Executive Officer and President
of the Employer from time to time (other than any such failure resulting from
the Employee's disability), which failure to perform has not been cured within
fifteen (15) days after a written demand for substantial performance is
delivered to the Employee by the Chief Executive Officer and President of the
Employer; or
(4) any fraud, material misappropriation, or
embezzlement by the Employee in connection with the operation or management of
the business of the Employer.
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(e) The parties agree that, because there can be no exact
measure of the damage that would occur to the Employee as a result of a
termination by the Employer of the Employee's employment without Good Cause, the
payments and benefits paid and provided pursuant to this Agreement shall be
deemed to constitute liquidated damages and not a penalty for the Employer's
termination of the Employee's employment without Good Cause; provided that the
Employee shall be required to use all reasonable efforts to mitigate his
damages; provided further that if the Employee obtains new employment (including
self-employment), any payments and benefits paid and provided pursuant to this
Agreement shall be reduced or cancelled to the extent of any salary or other
cash compensation and benefits coverage earned or accrued in connection with
such employment.
(f) The Employer's obligation to make any of the payments or
provide any of the benefits described above is conditioned upon the Employee
delivering a full release of any known or unknown claims arising out of or
related to this Agreement or the Employee's employment or termination of
employment with the Employer in a form which is reasonably acceptable to the
Employer.
9. Disclosure. The Employee agrees that during the Employment Period,
he will disclose and disclose only to the Employer all material ideas, methods,
plans, developments or improvements known by him which relate directly or
indirectly to the business of the Employer, whether acquired by the Employee
before or during the Employment Period. Nothing in this Section 9 shall be
construed as requiring any such communication where the idea, plan, method or
development is lawfully protected from disclosure as a trade secret of a third
party or by any other lawful prohibition against such communication.
10. Confidentiality. The Employee agrees to keep in strict secrecy and
confidence any and all information the Employee assimilates or to which he has
access during the Employment Period and which has not been publicly disclosed
and is not a matter of common knowledge in the fields of work of the Employer.
The Employee agrees that both during and after the Employment Period, he will
not, without the prior written consent of the Employer, disclose any such
confidential information to any third person, partnership, joint venture,
company, corporation or other organization.
11. Non-Competition; Non-Solicitation; Non-Disparagement. The Employee
hereby acknowledges that, during and solely as a result of his employment by the
Employer, he will receive: (1) special training and education with respect to
the operations of a cable television company and other related matters, and (2)
access to confidential information and business and professional contacts. In
consideration of the special and unique opportunities afforded to the Employee
by the Employer as a result of the Employee's employment, as outlined in the
previous sentence, the Employee hereby agrees as follows:
(a) During a period starting on the Commencement Date and
ending two (2) years following the end of the Employment Period, the Employee
shall not, without the prior written consent of the Employer, (i) directly or
indirectly engage in any business that competes with the Employer or any
subsidiary or affiliate of the Employer in their conduct of the cable television
business, or otherwise receive compensation for any services rendered regarding
any
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aspect of the cable television business anywhere within a thirty-five (35) mile
radius of any cable television system operated by the Employer or any subsidiary
or affiliate of the Employer; or (ii) engage or participate, directly or
indirectly, in any business which is substantially similar to that of the
Employer or any subsidiary or affiliate of the Employer, including, without
limitation, serving as a consultant, administrator, officer, director, employee,
manager, landlord, lender, guarantor, or in any similar or related capacity or
otherwise receive compensation for services rendered regarding any aspect of the
cable television business anywhere within the states in which any cable
television system is operated by the Employer or any subsidiary or affiliate of
the Employer. The Employee acknowledges that these limited prohibitions are
reasonable as to time, geographical area and scope of activities to be
restrained and that the limited prohibitions do not impose a greater restraint
than is necessary to protect the Employer's goodwill, proprietary information
and other business interests. The mere ownership of a de minimis amount of
securities in any competitive enterprise and exercise of rights appurtenant
thereto are not prohibited.
(b) During the Employment Period, except as may be otherwise
herein provided, for a period of two (2) years following the end of the
Employment Period, regardless of the reason for such termination, the Employee
agrees he will refrain from and will not, directly or indirectly, as an
individual, partner, officer, director, stockholder, employee, advisor,
independent contractor, joint venturer, consultant, agent, representative,
salesman or otherwise (i) solicit any of the employees of the Employer to
terminate their employment or (ii) accept employment with or seek remuneration
by any of the clients or customers of the Employer with whom the Employer did
business during the Employment Period.
(c) The Employee agrees that, during the Employment Period and
the non-competition period described in this Section 11, he will not make or
publish any statement which is, or may reasonably be considered to be,
disparaging of the Employer, its subsidiaries or affiliates, or directors,
officers, employees or the operations, products or services of the Employer or
any of its subsidiaries or affiliates, except in connection with the performance
of his services hereunder to the extent the Employee makes the statement to
employees of the Employer or its affiliates in good faith in furtherance of the
Employer's business.
(d) The period of time during which the Employee is prohibited
from engaging in certain business practices pursuant to Sections 11(a), (b) or
(c) shall be extended by any length of time during which the Employee is in
breach of such covenants.
(e) It is understood by and between the parties hereto that
the foregoing restrictive covenants set forth in Sections 11(a) through (d) are
essential elements of this Agreement, and that, but for the agreement of the
Employee to comply with such covenants, the Employer would not have agreed to
enter into this Agreement. Such covenants by the Employee shall be construed as
agreements independent of any other provision in this Agreement. The existence
of any claim or cause of action of the Employee against the Employer, whether
predicated on this Agreement, or otherwise, shall not constitute a defense to
the enforcement by the Employer of such covenants.
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(f) It is agreed by the Employer and the Employee that if any
portion of the covenants set forth in this Section 11 are held to be invalid,
unreasonable, arbitrary or against public policy, then such portion of such
covenants shall be considered divisible both as to time and geographical area.
The Employer and the Employee agree that, if any court of competent jurisdiction
determines the specified time period or the specified geographical area
applicable to this Section 11 to be invalid, unreasonable, arbitrary or against
public policy, a lesser time period or geographical area which is determined to
be reasonable, non-arbitrary and not against public policy may be enforced
against the Employee. The Employer and the Employee agree that the foregoing
covenants are appropriate and reasonable when considered in light of the nature
and extent of the business conducted by the Employer.
12. Specific Performance. The Employee agrees that damages at law will
be an insufficient remedy to the Employer if the Employee violates the terms of
Sections 9, 10 or 11 of this Agreement and that the Employer would suffer
irreparable damage as a result of such violation. Accordingly, it is agreed that
the Employer shall be entitled, upon application to a court of competent
jurisdiction, to obtain injunctive relief to enforce the provisions of such
Sections, which injunctive relief shall be in addition to any other rights or
remedies available to the Employer. The Employee agrees to pay to the Employer
all costs and expenses incurred by the Employer relating to the enforcement of
the terms of Sections 9, 10 or 11 of this Agreement, including reasonable fees
and disbursements of counsel (both at trial and in appellate proceedings).
13. Stock Options and Restricted Stock. Effective as of the
Commencement Date, the Employee shall be granted, in accordance with and subject
to the terms and conditions of the Classic Communications, Inc. 1999 Omnibus
Stock Incentive Plan (the "1999 Plan") and the incentive stock option award
agreement (the "Stock Option Agreement") by and between Classic and the
Employee, (i) an incentive stock option to purchase 200,000 shares of Classic's
Class A Voting Common Stock, par value $.01 per share ("Common Stock"), at the
exercise price of $16.00 per share and (ii) an incentive stock option to
purchase 100,000 shares of Common Stock at the exercise price of $25.00 per
share. Each option will vest and become exercisable as to twenty-five percent
(25%) of the Common Stock on each of the first four (4) anniversaries of the
grant date. Effective as of the Commencement Date, the Employee shall be
granted, in accordance with and subject to the terms and conditions of the 1999
Plan and the restricted stock award agreement (the "Restricted Stock Agreement")
by and between Classic and the Employee, 64,000 shares of restricted Common
Stock. The restrictions on the Common Stock will lapse as to twenty-five percent
(25%) of the Common Stock on each of the first four (4) anniversaries of the
grant date.
14. Compliance with Other Agreements. The Employee represents and
warrants that the execution of this Agreement by him and his performance of his
obligations hereunder will not conflict with, result in the breach of any
provision of or the termination of or constitute a default under any Agreement
to which the Employee is a party or by which the Employee is or may be bound.
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15. Waiver of Breach. The waiver by the Employer of a breach of any of
the provisions of this Agreement by the Employee shall not be construed as a
waiver of any subsequent breach by the Employee.
16. Assignment. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Employer. This Agreement is a personal employment contract
and the rights, obligations and interests of the Employee hereunder may not be
sold, assigned, transferred, pledged or hypothecated.
17. Entire Agreement. This Agreement, the 1999 Plan, the Stock Option
Agreement and the Restricted Stock Agreement contain the entire agreement and
supersede all prior agreements and understandings, oral or written, between the
Employer (or its subsidiaries) and Employee, with respect to the subject matter
hereof. This Agreement may be changed only by an agreement in writing signed by
the party against whom any waiver, change, amendment, modification or discharge
is sought.
18. Construction and Interpretation.
(a) This Agreement shall be governed by and construed pursuant
to the laws of the State of Texas.
(b) The headings of the various sections in this Agreement are
inserted for convenience of the parties and shall not affect the meaning,
construction or interpretation of this Agreement.
(c) Any provision of this Agreement which is determined by a
court of competent jurisdiction to be prohibited, unenforceable or not
authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or non-authorization without
invalidating the remaining provisions hereof or affecting the validity,
enforceability or legality of such provision in any other jurisdiction. In any
such case, such determination shall not affect any other provision of this
Agreement, and the remaining provisions of this Agreement shall remain in full
force and effect. If any provision or term of this Agreement is susceptible to
two or more constructions or interpretations, one or more of which would render
the provision or term void or unenforceable, the parties agree that a
construction or interpretation which renders the term or provision valid shall
be favored.
19. Notice. All notices which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
received if personally delivered; when transmitted if transmitted by telecopy or
similar electronic transmission method; one working day after it is sent, if
sent by recognized expedited delivery service; and five days after it is sent,
if mailed, first class mail, certified mail, return receipt requested, with
postage prepaid. In each case notice shall be sent:
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To the Employer: Classic Communications, Inc. and Classic Cable, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer and President
With copies to: Xxxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx Hastings
To the Employee: at the address and telecopy number stated in the
signature page hereto
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first-above written.
CLASSIC COMMUNICATIONS, INC.
By: /s/ XXXXXX X. SEACH
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Name: Xxxxxx X. Seach
Title: President and Chief Financial Officer
CLASSIC CABLE, INC.
By: /s/ XXXXXX X. SEACH
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Name: Xxxxxx X. Seach
Title: President and Chief Financial Officer
EMPLOYEE
/s/ XXXX X. XXXXXXX
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XXXX X. XXXXXXX
Address: 00000 Xxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Telecopy Number:
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