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EXHIBIT 10.46
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EXHIBIT 10.46
AGREEMENT
This Agreement (the "Agreement") is entered into by and between XXXXXX
COMMUNICATIONS CORPORATION ("PCC") and XXXXXX X. XXXXXX ("Xxxxxx"), as of this
18th day of August, 1995.
BACKGROUND. On or about October 10, 1990, Home Shopping Network, Inc.
("HSN") and Xxxxxx executed a Consulting Agreement (the "Consulting
Agreement"). Section 16 of the Consulting Agreement was entitled
"Non-Competition" (the "Non-Competition Provision") and pursuant thereto Xxxxxx
agreed for a period of five (5) years following the termination of his services
under the Consulting Agreement that he would not, directly or indirectly, do
certain things that related to the business or activities of HSN. For example,
the Non-Competition Provision, in part, generally purports to prohibit Xxxxxx
and entities in which he has an interest from competing with HSN and from
investing in competitive enterprises.
Xxxxxx indirectly has invested substantial amounts in PCC and is a key
employee of PCC. PCC and its affiliates desire to engage in business
activities, and PCC desires to retain the benefits of Xxxxxx'x investment and
employment, free from any possible basis for HSN to assert claims under the
Consulting Agreement. PCC desires to provide certainty for the scope of its
activities and to avoid needless expense resulting from claims by HSN pursuant
to the Non-Competition Provision. PCC also desires to restrict Xxxxxx and his
other affiliates from competing with PCC and from investing in competitive
enterprises. Xxxxxx is not willing to expand the scope of the Non-Competition
Provision but would like to clarify its terms and is willing to amend the terms
of the Non-Competition Provision if PCC is the beneficiary. The Consulting
Agreement is not assignable by HSN except in limited circumstances without
Xxxxxx'x consent. Xxxxxx and PCC believe it will be in their mutual interest
for PCC to acquire HSN's rights under the Consulting Agreement pertaining to
the Non-Competition Provision and Xxxxxx is willing to consent to such
acquisition, or whatever other arrangements PCC may make, in consideration for
Xxxxxx'x agreement with PCC for a modified Non-Competition Provision.
Therefore, Xxxxxx and PCC agree as follows:
1. TRANSACTIONS. Xxxxxx authorizes PCC to acquire, at its
expense, HSN's rights under the Consulting Agreement with respect to the
Non-Competition Provision, or to make arrangements for the termination of HSN's
rights under the Non-Competition Provision as applied to Xxxxxx and PCC.
2. REVISED NON-COMPETITION. Effective concurrently with (a) the
termination of HSN's rights under the Non-Competition Provision with respect to
Xxxxxx and PCC, or (b) the acquisition by PCC of HSN's rights with respect to
the Non-Competition Provision, Xxxxxx and PCC agree as follows:
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(a) Xxxxxx agrees with PCC that for a period ending upon
the earlier of (i) a Change in Control, as defined below, or (ii) December 31,
1999, which is five years after HSN terminated Xxxxxx'x services pursuant to
the Consulting Agreement, he will not, directly or indirectly, (a) solicit,
interfere with, or endeavor to entice away from PCC or its affiliates, any
employees, customers, or any other person, firm or corporation doing business
with PCC on the date hereof, unless such employment or business relationship
shall have terminated, or (b) make, directly or indirectly, an investment in an
enterprise that engages in any business in which PCC is engaged on the date of
this Agreement, (c) serve as a vendor for an enterprise that engages in any
business in which PCC or its affiliates are engaged on the date of this
Agreement, or (d) accept any employment whatsoever with, advise, consult with,
or serve as an officer or director, or otherwise do business with a company
that engages in any business, in which PCC and any of its affiliates or either
of them are so engaged on the date of this Agreement. Subject to the
foregoing, Xxxxxx will be free from the provisions of this paragraph to engage
in any business or other endeavor for profit or for eleemosynary purposes or
otherwise.
(b) Notwithstanding the foregoing, Xxxxxx may, during the
period described above and thereafter, own, manage, serve as an officer,
director, consultant, adviser, or employee of, or otherwise have an interest in
any enterprise or activity engaged in religious broadcasting.
(c) It is Xxxxxx'x and PCC's intent that this paragraph 2
replaces and supersedes the Non-Competition Provision, but shall be effective
only if and when PCC and Xxxxxx, or either of them, enter into an agreement
with HSN pursuant to which PCC has either acquired HSN's rights under the
Consulting Agreement with respect to the Non-Competition Provision or has
obtained the release or discharge of Xxxxxx and PCC from the Non-Competition
Provision contained in the Consulting Agreement.
3. CHANGE IN CONTROL. Change in Control means the date on which
(1) any person, including a "group" as defined in section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, becomes the beneficial owner of
forty percent or more of the total number of shares entitled to vote in the
election of directors of the Board of Directors of PCC, (2) PCC is merged into
any other company or substantially all of its assets are acquired by any other
company, or (3) three or more directors nominated by the Board of Directors of
PCC to serve as a director, each having agreed to serve in such capacity, fail
to be elected in a contested election of directors.
4. SUCCESSORS. This Agreement shall be binding upon the heirs,
administrators, successors and assigns of each party hereto.
5. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the Xxxxxx and PCC with regard to the matters set forth
herein and shall be binding upon the successors and assigns of each. PCC and
Xxxxxx acknowledge and
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agree that they will make no claim at any time or place that this Agreement has
been orally altered or modified in any respect whatsoever. Any modification of
this Agreement must be in writing and signed by both parties.
6. MISCELLANEOUS.
(a) This Agreement shall be construed in accordance with,
and all disputes hereunder shall be governed by, the laws of the State of
Florida (not including the choice of law principles thereof).
(b) In the event of any controversy or dispute arising
out of this Agreement, the prevailing party shall be entitled to recover from
the non-prevailing party or parties his reasonable expenses, including, without
limitation, attorneys' fees.
(c) Should any provision of this Agreement be declared or
determined by any court to be illegal or invalid, the validity of the remaining
parts, terms, or provisions shall not be affected thereby and said illegal or
invalid part, term, or provision shall be deemed not to be a part of this
Agreement.
(d) As used in this Agreement, the masculine, feminine,
or neuter gender, and the singular or plural number, shall be deemed to include
the others whenever the context so indicates or requires.
(e) The headings used in this Agreement are intended
solely for convenience of reference and shall not in any manner amplify, limit,
modify or otherwise be used in the interpretation of any of the provisions
hereof.
IN WITNESS WHEREOF, Xxxxxx and PCC have signed and sealed this
Agreement as of the day and year first mentioned above.
/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000-0000
XXXXXX COMMUNICATIONS
CORPORATION
By:/s/ Xxxxxx X. Tek
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Xxxxxx X. Tek, Treasurer
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000-0000
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