Exhibit 10.4
EMPLOYMENT AGREEMENT
AGREEMENT made and entered into as of the 29th day of October, 1998, the
same to be effective as of April 1, 1998 ("Effective Date"), by and between
XXXXXXX X. XxXXXXXXX, residing at 000 Xxxxx Xxxx Xxxxx, Xxxxxxxxx, XX 00000
("Employee") and YOUNG BROADCASTING INC., a Delaware corporation with offices at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company").
W I T N E S S E T H:
WHEREAS, the Company is in the business of owning and operating television
broadcast stations; and
WHEREAS, the Company desires to employ Employee as its Executive Vice
President for Operations; and
WHEREAS, Employee desires to accept such employment, for the period and
upon the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual agreements hereinafter
contained, the parties hereto agree as follows:
1. Employment. The Company hereby employs Employee as its Executive Vice
President for Operations of the Company, and Employee hereby accepts such
employment upon the terms and conditions hereinafter set forth.
2. Term. Subject to the provisions of Sections 8 and 9 below, the term of
employment of Employee shall commence on April 1, 1998, and shall continue for a
three (3) year period ending on March 31, 2001 ("Initial Term"), provided
however, that Employee's term of employment shall
be automatically renewed for successive three (3) year periods following the
expiration of the Initial Term and each subsequent renewal period ("Renewal
Term").
3. Duties and Services. Employee shall devote her full time and best
efforts to the business and affairs of the Company and to any parent, subsidiary
or affiliate of the Company (collectively, "Affiliates"), all to the best of her
ability, experience and talents and as requested or required of her from time to
time by the Board of Directors of the Company (the "Board"). Employee's duties
shall include responsibility for operational matters affecting the Company and
its Affiliates, subject to the guidelines, goals and plans of the Board.
Employee shall report directly to the President of the Company or to such other
individual as the Board shall, from time to time, designate. If the Company
shall hire any other individual to perform or share the performance of
substantially similar responsibilities as Employee, such individual shall report
to Employee and not to the President.
4. Compensation.
A. Salary. For all services to be rendered by Employee hereunder,
the Company shall pay Employee an annual base salary at the rate specified for
Employee in the salary and cash incentive compensation schedule ("Salary and
Cash Incentive Compensation Schedule"), a copy of which is attached to this
Agreement as Exhibit A and incorporated herein by reference. Employee's annual
base salary shall be subject to automatic annual increases at a rate of five
percent (5%), commencing on January 1, 1999 and each subsequent January 1
thereafter in the Initial Term and each successive Renewal Term. However, the
Board may exercise its sole discretion to increase Employee's annual base salary
in any given year by an amount greater than 5%. Under no circumstances will the
Company have a right to decrease Employee's annual base salary or to reduce the
amount of the annual increase below 5%. The Company shall pay Employee's salary
in
2
accordance with the Company's standard payroll practices as in effect from time
to time, with appropriate deductions required by applicable laws, rules and
regulations.
B. Bonus Program. Employee shall be eligible to participate in the
Annual Incentive Plan ("AlP") maintained by the Company for the benefit of
certain executive employees. Employee's eligibility to participate in, and all
benefits and obligations under, the AlP shall be subject to, and administered in
accordance with, the terms of the AlP, as described in the AlP, a copy of which
is attached to this Agreement as Exhibit B and incorporated herein by reference.
The Board may exercise its sole discretion to modify the AlP, provided that no
modification may decrease the benefits to which Employee would otherwise be
entitled thereunder.
C. Leased Automobile. Employee shall be entitled to a
Company-provided leased automobile for personal use, the make and model of which
shall be comparable to the Company-provided leased automobile in Employee's
possession on the Effective Date of this Agreement. In the event that Employee
has no Company-provided leased automobile on the Effective Date, Employee shall
be entitled to a Company-provided leased automobile for personal use, the make
and model of which shall be mutually agreed upon by the Company and the
Employee. Throughout the Initial Term and Renewal Terms, if any, all expenses
for routine maintenance, repair and insurance, the Employee's rights and
obligations regarding replacement leased automobiles and the tax treatment of
the automobile as a fringe benefit to Employee shall be governed by the
Company's standard practices, policies and procedures in effect from time to
time.
D. Incentive Stock Option Plan. Employee shall be eligible to
participate in the Young Broadcasting, Inc. 1995 Stock Option Plan, as amended
from time to time ("Stock Option Plan"), in accordance with the terms and
provisions of the Stock Option Plan, a copy of which is
3
attached to this Agreement as Exhibit C and incorporated herein by reference.
Employee's participation in the Stock Option Plan shall be evidenced by a
separate agreement executed by Employee and the Company. Upon Employee's
exercise of any option(s) or right(s) under the Stock Option Plan with respect
to which any Federal, state or local income and employment tax withholding
requirements exist, unless the Employee is eligible to and does satisfy the
withholding requirements under an agreement (pursuant to Section 16 of the Stock
Option Plan) whereby the Company may withhold shares of common stock purchased
upon exercise to satisfy such requirements, Employee shall either (1) present
evidence satisfactory to Company demonstrating that Employee has remitted to the
Internal Revenue Service payment sufficient to satisfy the applicable tax
withholding requirements, or (2) make payment to the Company in cash in an
amount equal to the income and employment taxes required to be withheld, on the
compensation includible in employee's income on account of her exercise of the
options(s) or right(s).
E. Stock Incentive Loan Plan. Employee shall be eligible to continue
to participate in the Young Broadcasting, Inc. 1994 Stock Incentive Loan Plan
("Loan Plan") to the extent she is currently participating thereunder, in
accordance with the terms and provisions of the Loan Plan, a copy of which is
attached to this Agreement as Exhibit D and incorporated herein by reference.
Employee's participation in the Loan Plan shall be evidenced by a separate
agreement, or promissory note, executed by the Employee and, to the extent
required, by the Company.
F. Loan Forgiveness Program. Employee shall be eligible to continue
to participate in the Young Broadcasting, Inc. Loan Forgiveness Program
("Forgiveness Program") to the extent she is currently participating thereunder,
in accordance with the terms and provisions of the Forgiveness Program, a copy
of which is attached to this Agreement as Exhibit E and
4
incorporated herein by reference. Employee's rights and obligations under the
Forgiveness Program shall be subject to, and administered in accordance with,
the terms of the Forgiveness Program, as described in the Forgiveness Program
document.
5. Expenses. The Company shall reimburse Employee for all reasonable,
ordinary and necessary expenses incurred on behalf of the Company by Employee,
within the budgets and guidelines set by the Board from time to time. Employee
shall submit to the Company an expense report and all receipts or other
verification of expenses to be reimbursed hereunder.
6. Benefits. Employee shall be entitled to such insurance and retirement
plan benefits as are generally available to other senior management employees of
the Company, pursuant to Company policy in effect from time to time, such as
health insurance, disability and life insurance, and the right to participate in
any retirement plans maintained by the Company. Attached as Exhibit F is a copy
of the Executive Health Plan, which shall remain in effect during the Initial
Term and Renewal Terms, if any.
In the event that the Employee and her covered dependents lose coverage
under the Company's group health plan ("Health Plan"), the Company shall offer
Employee the opportunity to continue medical coverage under the Health Plan, as
required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA"), and shall pay the COBRA premiums, if Employee elects COBRA
coverage, for as long as Employee and her dependents are entitled to receive
COBRA coverage. The Company shall pay COBRA premiums based on the type of
coverage Employee had on the day before the "qualifying event."
7. Vacation. Employee shall be entitled to five (5) weeks of paid vacation
during each full contract year (April through March) of employment. Vacation
shall be taken at such time or
5
times as is approved by the Company. There shall be no payment for unused
vacation, nor shall unused vacation be carried over from year to year.
8. Termination Provisions.
A. Company's Right to Terminate. Notwithstanding the provisions of
Section 2 above, the Company may terminate the employment of Employee under the
following conditions, without the payment of any compensation to Employee,
except salary due for the period prior to the date of termination:
(1) In the event Employee shall, during the term of this
Agreement, become physically or mentally disabled so that she is unable, or can
reasonably be expected to be unable, to perform her duties hereunder for a
period of ninety (90) consecutive days, or one hundred twenty (120)
non-consecutive days within any twelve (12) month period, the Company shall have
the right to terminate Employee's employment and her right to receive any
compensation for the period following the date of termination, provided that the
Company provides the Employee with not less than fifteen (15) days prior written
notice of the termination of this Agreement and her employment.
(2) In the event of the death of Employee.
(3) In the event of a breach by Employee of any of the
material provisions of this Agreement or of any of the material obligations of
Employee to the Company, whether arising under this Agreement or under general
principles of common law, provided that Employee has been provided written
notice of such breach, which notice shall describe the breach in reasonable
detail, and such breach is not cured in the reasonable and good faith judgment
of the Board, within fifteen (15) days of the date of the notice.
6
B. Company's and Employee's Right to Terminate. Notwithstanding the
provisions of Section 2 above, at least 90 days before the end of the Initial
Term or any Renewal Term, either party may terminate this Agreement by giving
written notice to the other party indicating that the party does not desire to
renew the Agreement. In the event that the Company terminates this Agreement
under the preceding sentence, in addition to paying Employee all amounts due for
the period of time remaining under the then current contract term, the Company
shall pay Employee a total amount of severance benefits equal to one (1) month
of Employee's annual base salary for each year of Employee's service with the
Company or its Affiliates, payment of which shall commence for the first month
following the end of the terminated Initial Term or Renewal Term and shall be
payable in accordance with the Company's standard payroll practices as in effect
from time to time, with appropriate deductions required by applicable laws,
rules and regulations. For purposes of calculating the number of months of
severance benefits to which Employee may be entitled under this Section 8B,
Employee and Company acknowledge and agree that Employee's service with Company
or its Affiliates commenced on April 1, 1986. In addition to the amounts due
Employee under this Section 8B, Employee shall be permitted to retain the
Company-provided leased automobile during the time remaining in the then current
contract term (and during the period the Employee receives severance benefits),
subject to the Company's standard practices, policies and procedures applicable
to the automobile during that contract term.
C. Employee's Right to Terminate. Employee may terminate this
Agreement in the event of a breach by the Company of any of the material
provisions of this Agreement; provided that Employee gives the Company written
notice of the breach, which notice shall describe
7
[Text to come]
8
(4) a tender offer or exchange offer is made and consummated
for the ownership of securities of the Company representing 30 percent or more
of the combined voting power of the Company's then outstanding voting
securities;
(5) the Company transfers substantially all of its assets to
another corporation which is not a wholly-owned subsidiary of the Company; or
(6) a Change of Control occurs within the meaning of the
Company's Indentures of its Senior Credit Facility.
B. In the event that a Change of Control occurs during the Initial
Term or any Renewal Term, the Company shall pay the Employee all amounts due for
the period of time remaining under the then current contract term regardless of
whether Employee continues to perform services for the Company or the Company
requires Employee to vacate the premises and ceases using the Employee's
services before the end of the then current contract term.
(1) If the Company ceases to use Employee's services specified
in Section 3, above, after a Change of Control described in this subsection B,
the Company shall pay Employee compensation for the remainder of the then
current Initial Term or Renewal Term in an amount equal to the sum of the
Employee's base salary under this Agreement for the year in which the Change of
Control occurs, plus an annual bonus equal to the greater of (a) the amount
Employee would have earned under the AlP for the year in which the Change of
Control occurs; or (b) the amount Employee earned under the AlP during the year
preceding the Change of Control. In the event the Company requests Employee to
vacate the Company's premises for the remainder of the then current Initial Term
or Renewal Term, Employee shall have the right to vacate the premises at any
time during the ninety (90) day period following the date of the Company's
notice to vacate.
9
(2) If Employee continues to perform the services specified in
Section 3, above, for the Company after a Change of Control, the Company shall
pay Employee compensation equal to the sum of Employee's base salary as it
becomes due under this Agreement, plus an annual bonus equal to the greater of
(a) the bonus Employee would have earned under the AlP for the particular fiscal
year; or (b) the bonus earned under any new incentive plan adopted by the
Company after a Change of Control, but in no event less than the bonus amount
Employee received from the Company for the fiscal year preceding the Change of
Control.
(3) If, after the Change of Control, the Company exercises its
right to terminate this Agreement by giving Employee at least 90 days written
notice before the end of the then current Initial Term or Renewal Term under
Section 8B above, in addition to paying Employee all amounts due for the period
of time remaining under the then current contract term, the Company shall pay
Employee a total amount of severance benefits equal to one (1) month of
Employee's then current annual base salary for each year of Employee's service
with the Company or its Affiliates, using the service commencement date
specified in Section 8B. The payment of severance benefits shall commence for
the first month following the expiration of the then current contract term and
shall be payable in accordance with the Company's standard payroll practices as
in effect from time to time, with appropriate deductions required by applicable
laws, rules and regulations. Additionally, the Company shall continue to provide
Employee with a leased automobile during the period of time remaining under the
then current contract term (and during the period the Employee receives
severance benefits), subject to the Company's standard practices, policies and
procedures applicable to the automobile during that contract term.
10
C. If a Change of Control occurs, the Board shall exercise its power
and right, under the third paragraph of Section 14 of the Stock Option Plan, to
accelerate the exercisability by Employee of any options and rights that
Employee has under any agreement between Employee and Company under the Stock
Option Plan, so that Employee shall become vested to and immediately entitled to
exercise any options and rights with respect to which the exercise dates have
not otherwise already occurred.
D. In the event that the Company pays Employee compensation under
this Section 9 that constitutes "excess parachute payments" within the meaning
of Section 280G of the Internal Revenue Code of 1986, as amended, and any
regulations thereunder, the Company shall pay Employee additional compensation
in an amount which, after withholding all applicable income and employment
taxes, is sufficient to satisfy Employee's obligation to pay the applicable
excise taxes on the "excess parachute payments."
E. If, as a result of a Change of Control, the Company requires
Employee to change her principal place of business at which she performs
services for the Company or otherwise to relocate to another location greater
than twenty (20) miles from the location of the office in which Employee works
when the Change of Control occurs, Employee shall have the right to terminate
this Agreement by giving the Company 30 days prior written notice, rather than
relocating, and the Company shall pay Employee compensation equal to the amount
that otherwise would be due for the remainder of the Initial Term or any Renewal
Term, as applicable pursuant to Sections 9B(l), (2), and/or (3).
10. Representations and Warranties. Employee represents and warrants that
Employee is not subject to or a party to any agreement, contract, covenant,
order or other restriction which in any way prohibits, restricts or impairs
Employee's ability to enter into this Agreement and carry out
11
her duties and obligations hereunder. Each party hereto represents and warrants
to the other that (i) each has the full legal right and power and all authority
and approval required to enter into, execute and deliver this Agreement and to
perform fully all of her or its obligations hereunder; and (ii) this Agreement
has been duly executed and delivered and constitutes a valid and binding
obligation of each party, enforceable in accordance with its terms.
11. Confidentiality. The parties hereto recognize and agree that due to
the complex and competitive nature of the business of the Company and its
Affiliates and their respective sophisticated operational affairs, the
confidentiality of information concerning the Company and its Affiliates is of
critical importance. Employee agrees that due to her duties and position of
trust under this Agreement as well as the special, unique and extraordinary
nature of her services, Employee will have access to and obtain information
concerning the Company and its Affiliates which is confidential and proprietary
to the Company and its Affiliates, including but not limited to certain
information concerning relationships with industry executives and advisors,
business methods and systems, and business and operational plans, policies and
directions (collectively, the "Information"), Employee agrees that she will not
during, or at any time after the term of this Agreement, directly or indirectly,
disclose or use any Information for any reason whatsoever, without the prior
written consent of the Board in each instance. The Employee consents and agrees
that if she violates any of the provisions of this Section 11, the Company and
its Affiliates would sustain irreparable harm and, therefore, in addition to any
other remedies which the Company may have under this Agreement or otherwise, the
Company shall be entitled to apply to any court of competent jurisdiction for an
injunction restraining Employee or any third party from committing or continuing
any such violation (or participating therein) of this Agreement, and the
Employee shall not object to any such application.
12
12. Non-Competition.
A. Employee is familiar with the business of Company, the commercial
and competitive nature of the industry, and with her extraordinary and unique
services and abilities which enable her to seek and obtain similar employment in
the broadcast industry. Employee recognizes that the value of Company's business
would be injured if Employee obtained comparable employment with any of
Company's competitors which own broadcast properties within any of the markets
in which the Company owns broadcast properties as of the day on which this
Agreement expires/terminates or as of the day before a Change of Control is
consummated, whichever is applicable. For purposes of this Section 12A, the day
before a Change of Control shall be applicable for determining limitations on
broadcast markets if this Agreement terminates as a direct or indirect result of
the Change of Control; otherwise, the day before the Agreement
expires/terminates shall be the applicable date for these purposes. Employee
further recognizes that such injury could not be reasonably or adequately
compensated by monetary compensation. For these reasons, upon the
expiration/termination of this Agreement under either Section 8 or 9, Employee
will not, for a period equal to the number of months for which severance
benefits are payable to Employee under either Section 8B or 9B(3), but not more
than one (1) year (the "Non-Competition Term"), perform services for any other
person or entity in any broadcast market in which Company owns any broadcast
properties as of the day on which this Agreement expires/terminates or as of the
day before a Change of Control is consummated, whichever is applicable. Nothing
in this Section 12 shall prevent Employee from performing services, during the
Non-Competition Term, for any person or entity in broadcast markets in which
Company owns no broadcast properties as of the day on which this Agreement
expires/terminates or as of the day before a Change of Control is consummated,
whichever is applicable. Furthermore, this Section 12 shall not prevent Employee
from performing
13
services during the Non-Competition Term in broadcast markets in which the
acquiring company owns broadcast properties on the day before a Change of
Control becomes effective. Notwithstanding anything herein to the contrary, if
the expiration/termination of this Agreement occurs after a Change of Control,
Employee shall be released from her non-competition covenant under this Section
12 solely with respect to the Los Angeles dominant market area ("DMA") and with
respect to the Nashville DMA, provided that Employee gives the Company thirty
(30) days written notice of her intent to compete in either or both such DMA's
and a written release of her rights to receive further payments or benefits
under either Section 8B or 9B of this Agreement.
B. During the Non-Competition Term, Employee shall not either directly or
indirectly employ, solicit for employment, or advise or recommend to any other
person that they employ or solicit for employment, any other employee of
Company.
C. It is understood and agreed that part of the consideration for
this non-competition covenant is the employment of Employee by Company and such
employment is being made in reliance on this non-competition covenant and the
protection it affords from the irreparable injury Company would suffer should
Employee compete with or serve a competitor of Company in violation of the
provisions of this non-competition covenant. Employee hereby acknowledges and
agrees that it is impossible to measure in monetary terms the damages which will
accrue to Company by reason of Employee's failure to perform any of her
obligations under this non-competition covenant. Accordingly, if Company, or any
of its successors or assigns, shall institute an action or proceeding to enforce
the provisions of this non-competition covenant, Company shall be entitled to
injunctive or other equitable relief, in addition to damages in an action at
law, to prevent the failure to perform or other violation of the provisions of
this Agreement.
14
D. Employee acknowledges that she has carefully read and considered
the provisions of this Section 12 and agrees that the restrictions herein
contained, including but not limited to the time period and geographical areas
of restriction, are fair and reasonable, are common in the broadcast industry,
and are reasonably required for the protection of Company. Employee acknowledges
that she has had the opportunity to consult with her attorney, and/or agent in
connection with this Section 12.
E. If at any time all or any part of any provision of this Section
12 shall be held to be invalid or unenforceable in any particular jurisdiction
or circumstance, such provision shall be enforceable in all other jurisdictions
or circumstances and the remaining provisions of this Section 12 and this
Agreement shall nevertheless continue to be valid and enforceable to the fullest
extent permitted by law as though any invalid or unenforceable provision had not
been included herein.
F. If the scope of any restriction contained in this Section 12 is
too broad to permit enforcement of such restriction to its full extent, then
such restriction shall be enforced to the maximum extent permitted by law and
Employee hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding to enforce such restriction.
13. Paragraph Headings. The titles to the Sections of this Agreement are
solely for the convenience of the parties and shall not be used to explain,
modify, simplify, or aid in the interpretations of the provisions of this
Agreement.
14. Notices. All notices, demands and requests provided or permitted to be
given pursuant to this Agreement, shall be given in writing, sent by certified
mail, return receipt requested, and addressed as follows or to such other
address so designated in the appropriate manner by the parties. All notices
shall be deemed effective when mailed.
15
COMPANY: Young Broadcasting, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxx Xxxxxx & Winikoff, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EMPLOYEE: Xxxxxxx X. XxXxxxxxx
000 Xxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
15. Assignment. The rights of each party under this Agreement are personal
to that party and may not be assigned, delegated or transferred to any other
person, firm, corporation, or other entity without the prior, express, and
written consent of the other party, except that the Company may transfer its
rights under this Agreement to any Affiliate or other entity which assumes, by
contract or operation of law, the Company's rights under this Agreement.
16. Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the Laws of the State of New York.
17. Entire Agreement. This Agreement and Exhibits A, B, C, D, E and F & G
shall constitute the entire agreement between the parties and any prior written
or oral understanding or representation of any kind, or any oral communications
shall not be binding upon either party except to the extent incorporated in this
Agreement.
18. Modification of Agreement. This Agreement can be modified only in
writing and shall be binding only if executed with and under the same formality
by the parties hereto or their duly authorized representatives.
16
19. No Waiver. The failure of either party to this Agreement to insist
upon the performance of any of the terms and conditions of this Agreement, or
the waiver of any breach of any of the terms and conditions of this Agreement,
shall not be construed as thereafter waiving any such terms and conditions, but
the same shall continue and remain in full force and effect as if no such
forbearance or waiver had occurred.
20. Effect of Partial Invalidity. The invalidity or unenforceability of
any provision or covenant of this Agreement shall not be deemed to affect the
validity or enforceability of any other provision or covenant. In the event that
any provision or covenant of this Agreement is held invalid or unenforceable,
the same shall be deemed automatically modified to the minimum extent necessary
to make such provision or covenant enforceable and the parties agree that the
remaining provisions shall be deemed to be and to remain in full force and
effect.
21. Counterparts. This Agreement may be executed in counterparts and all
counterparts so executed shall constitute an agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
WITNESS: YOUNG BROADCASTING, INC.
/s/ [Illegible] By: /s/ Xxxxx X. Xxxxxx
---------------------------------- -------------------------------------
Xxxxx X. Xxxxxx
Exec. V.P/ CFO
WITNESS: XXXXXXX X. XxXXXXXXX
/s/ [Illegible] /s/ Xxxxxxx X. XxXxxxxxx
---------------------------------- ----------------------------------------
Employee
17
YOUNG BROADCASTING INC - Exhibit A
Salary and Cash Incentive Compensation
Employee: Xxxxxxx XxXxxxxxx
--------------------------------------------------------------------------------
Period Annual Bonus
Base Salary "AIP"
--------------------------------------------------------------------------------
January 1, 1998 to December 31, 1998 $316,250 $189,750
January 1, 1999 to December 31, 1999 $332,063 $199,238
January 1, 2000 to December 31, 2000 $348,666 $209,199
January 1, 2001 to December 31, 2001 $366,099 $219,659
