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EXHIBIT 10.33
EMPLOYMENT AND CONSULTING AGREEMENT
AGREEMENT made and entered into as of the 1st day of June, 1999, by and
between PULITZER INC., a Delaware corporation with its principal offices in St.
Louis, Missouri (the "Company"), and XXXXXXX X. XXXXXXXX, a resident of the
State of Missouri ("Pulitzer").
1. Employment. The Company will continue to employ the services of Mr.
Pulitzer, and Mr. Pulitzer will continue to provide services to the Company,
upon the terms and conditions set forth in this Agreement.
2. Term. The term of this Agreement will begin as of the date hereof
and, unless sooner terminated in accordance with the provisions hereof, will end
on May 31, 2006.
3. Position, Duties and Responsibilities. Mr. Pulitzer will serve as
Executive Chairman of the Board of Directors of the Company (the "Board") for
two years or such greater or lesser period as may be agreed upon by the parties.
Thereafter, for the balance of the term, Mr. Pulitzer will serve as
non-executive Chairman of the Board and will render such senior advisory
services to the Company as the Board may request at any time and from time to
time. In his capacity as Executive Chairman, Mr. Pulitzer will devote
substantially all of his business time and attention to the performance of his
duties and responsibilities under this Agreement. In his capacity as senior
advisor and/or non-executive Chairman of the Board, Mr. Pulitzer will devote so
much of his business time and attention to the performance of his duties and
responsibilities as the Board may reasonably request from time to time, taking
into account the non-full time nature of his position, as well as Mr. Pulitzer's
other commitments, activities and general convenience.
4. Compensation.
(a) Base Salary. The Company will pay salary to Mr. Pulitzer at an
annual rate of $980,000 during the period for which he serves as Executive
Chairman, in accordance with the Company's normal pay practices. The Company
will pay advisory and consulting fees to Mr. Pulitzer at an annual rate of
$700,000, not less frequently than monthly, during the balance of the term of
this Agreement.
(b) Annual Incentive Awards. During the period for which he serves as
Executive Chairman, Mr. Pulitzer will participate in any bonus plan that may be
established by the Company on the same basis as other senior executives, and, at
a minimum, Mr. Pulitzer will be eligible for an annual target incentive
opportunity of 40% of salary. Except as otherwise specifically provided in
Section 7 (relating to termination of service), Mr. Pulitzer will be entitled to
receive a pro rata bonus for the year in which his employment as Executive
Chairman ends. Bonuses will be payable promptly after the end of the year for
which they are earned, subject to deferral requirements that may be imposed by
the Company in order to preserve its income tax deduction or elective deferral
opportunities that may be afforded by the Company.
(c) Employee Benefit Programs and Perquisites. Mr. Pulitzer will be
entitled to participate in such employee retirement, pension, welfare and other
fringe benefit plans, arrangements and programs of the Company as are made
available to the Company's employees generally and to receive such additional
benefits and perquisites (including, without limitation, participation in any
stock option, restricted stock and other equity compensation plans or
arrangements) as are made available to other senior level executives of the
Company from time
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to time during the period for which he serves as Executive Chairman. The Company
has assumed the obligations of Pulitzer Publishing Company ("PPC") under the
split dollar life insurance Agreement dated December 27, 1996 between
PPC and Xxxxxxx X. Xxxxxx, trustee, as amended.
(d) SERP. The Company has assumed the obligations of PPC to Mr.
Pulitzer for benefits accrued by Mr. Pulitzer under PPC's Supplemental Executive
Benefit Pension Plan prior to the closing (the "Closing") of the transactions
contemplated by the Amended and Restated Agreement and Plan of Merger, dated as
of May 25, 1998, by and among PPC, the Company and Hearst-Argyle Television,
Inc. The Company will establish and maintain a similar plan ("SERP") for the
benefit of its eligible employees (including Mr. Pulitzer) under which the
Company's obligations assumed by PPC and its obligations for future benefit
accruals will be payable. The formula benefit payable to Mr. Pulitzer under the
SERP will be increased to 50% (from 40%) of final average compensation,
effective as of the date hereof. On the second anniversary of the date hereof or
upon Mr. Pulitzer's earlier termination of employment as Executive Chairman for
reasons other than by Mr. Pulitzer without Good Reason or by the Company for
Cause (within the meaning of Sections 7(c) and (d) hereof), the formula benefit
payable to Mr. Pulitzer under the SERP will be further increased to 55% of final
average compensation. Covered compensation paid to Mr. Pulitzer by PPC will be
taken into account and for the purpose of calculating his SERP entitlements.
(e) Retirement. Notwithstanding anything to the contrary contained
herein or in any other agreement, plan, program or arrangement, Mr. Pulitzer's
status as an active employee of the Company will end when he ceases to serve as
Executive Chairman and begins to serve in his capacity as non-executive Chairman
of the Board and senior advisor. Mr. Pulitzer will be deemed to have retired
from his employment with the Company at such time for purposes of determining
his rights and entitlements under any pension, retiree medical, retiree life
insurance, and any other plan, program or arrangement under which he is covered
as an employee of the Company and, from and after such time, Mr. Pulitzer will
be treated as an independent contractor for all such purposes and for any
payroll and other relevant purposes, including, without limitation, his right to
begin receiving his SERP benefit and his vesting rights under any stock option,
restricted stock or other equity compensation plan or arrangement of the
Company.
5. Place and Conditions of Employment. Mr. Pulitzer's place of
employment during the period for which he serves as Executive Chairman will be
in the St. Louis metropolitan area, subject to the need for occasional business
travel. The Company will not designate and Mr. Pulitzer will not be required to
have a fixed place of work with respect to his services as a senior advisor to
the Company, it being understood that such services will be provided by Mr.
Pulitzer at such location or locations as may be reasonably convenient to Mr.
Pulitzer at any time and from time to time. During the term of this Agreement,
the Company will provide Mr. Pulitzer with office space and accouterments,
secretarial, administrative and other support, and otherwise maintain working
conditions that are consistent with his status and tenure with the Company.
6. Reimbursement of Business Expenses. Mr. Pulitzer is authorized to
incur reasonable expenses in carrying out his duties and responsibilities under
this Agreement, and the Company will pay or promptly reimburse him for all such
expenses that are so incurred upon presentation of appropriate vouchers or
receipts. Mr. Pulitzer will be entitled to reimbursement for first class travel
and lodging accommodations while on Company business.
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7. Termination of Employment.
(a) Death. If Mr. Pulitzer's employment with the Company terminates
before the end of the stated term of this Agreement by reason of his death,
then, as soon as practicable thereafter, the Company will pay to his estate an
amount equal to his "Accrued Compensation" (defined below). Mr. Pulitzer's
spouse and covered dependents will be entitled to continue to participate in the
Company's group health plan(s) at the same benefit level at which they
participated immediately before Mr. Pulitzer's death for a period of at least
one year after Mr. Pulitzer's death or, if longer, for the balance remaining in
the stated term of this Agreement at the time of his death, and, thereafter, for
such additional continuation period as may be available under COBRA or under any
post-retirement group health plan or arrangement in which Mr. Pulitzer
participated prior to his death. For the purposes hereof, the term "Accrued
Compensation" means, as of any date, the amount of any unpaid salary or advisory
and consulting fees earned by Mr. Pulitzer through that date, plus a pro rata
amount of Mr. Pulitzer's target annual incentive award to which Mr. Pulitzer
would have been entitled for the year in which such date occurs, plus any
additional amounts and/or benefits payable to or in respect of Mr. Pulitzer
under and in accordance with the provisions of any employee plan, program or
arrangement under which Mr. Pulitzer is then covered. If Mr. Pulitzer dies
before the expiration of the stated term of this Agreement, then, unless his
employment or services shall have been previously terminated by the Company for
Cause or voluntarily by Mr. Pulitzer without Good Reason pursuant to Section
7(c) below, in addition to any other amounts or benefits that may be payable,
his surviving spouse, if any, will be entitled to receive $29,167 on the first
day of the month following Mr. Pulitzer's death and on the first day of each
succeeding month until the earlier of: (1) the death of Mr. Pulitzer's surviving
spouse, or (2) the end of the stated term of this Agreement.
(b) Disability. If the Company terminates Mr. Pulitzer's employment or
advisory services before the end of the stated term of this Agreement by reason
of Mr. Pulitzer's "disability" (defined below), then Mr. Pulitzer will be
entitled to receive: (1) his Accrued Compensation through his employment
termination date, (2) continuing salary or advisory and consulting fees (at the
rate in effect at the time his employment or service terminates), reduced by any
amounts payable to him pursuant to a Company-sponsored long term disability
program, during the one-year period following the termination of his employment
or services, and (3) continuing participation in the Company's group health
plan(s) at the same benefit level at which he and his covered dependent(s)
participated immediately before the date of his disability termination for at
least one year or, if longer, for the then balance remaining in the stated term
of this Agreement and, thereafter, for such additional continuation period as
may be available under COBRA or under any post-retirement group health plan or
arrangement in which Mr. Pulitzer participated prior to the date of his
disability termination. For purposes of this Agreement, the term "disability"
means the inability of Mr. Pulitzer to substantially perform the customary
duties of his employment or other service for the Company for a period of at
least 180 consecutive days by reason of a physical or mental incapacity which is
expected to result in death or last indefinitely.
(c) Termination by the Company for Cause or Voluntary Termination by
Mr. Pulitzer without Good Reason. If the Company terminates Mr. Pulitzer's
employment or services for "Cause" (defined below) or if Mr. Pulitzer
voluntarily terminates his employment or services without "Good Reason" (as
defined in subsection (d) below) before the end of the stated term of this
Agreement, then Mr. Pulitzer will be entitled to receive his Accrued
Compensation through the termination date, determined without regard to pro rata
bonus, and nothing more. For purposes hereof, the Company may terminate Mr.
Pulitzer's employment for "Cause" if: (1) Mr. Pulitzer is
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convicted for the commission of a felony involving moral turpitude, or (2) Mr.
Pulitzer fails to carry out his duties and responsibilities hereunder due to his
willful gross neglect or willful gross misconduct which cannot be cured or
which, if curable, is not cured within 30 days after receipt of written notice
by the Company and a reasonable opportunity to appeal to the Board (in person or
through a representative), provided that, in either case (1 or 2), Mr.
Pulitzer's conduct results in material harm to the financial condition or
reputation of the Company.
(d) Termination by the Company Without Cause or by Mr. Pulitzer for
Good Reason. If Mr. Pulitzer's employment or service is terminated by the
Company without Cause or by Mr. Pulitzer for Good Reason, then Mr. Pulitzer will
be entitled to receive: (1) Accrued Compensation through the termination date,
(2) continued salary and/or advisory and consulting fees for the then balance of
the stated term of this Agreement at the annual rate in effect immediately prior
to the termination date, (3) if the termination date occurs during the period
for which Mr. Pulitzer is serving as Executive Chairman, a single sum payment in
an amount equal to 40% of the highest annual rate of salary in effect before the
termination date (or, if higher, the highest annual incentive award paid or
payable to Mr. Pulitzer for any of the three preceding years (including, for
this purpose, employment with PPC) multiplied by the number of years (including
fractions of a year) remaining in the stated term of his employment as Executive
Chairman, (4) continued participation in the Company's group health plan(s) at
the same benefit level at which he and his covered dependent(s) participated
immediately before the termination of his employment or service for a period of
at least one year after such termination or, if longer, for the balance
remaining in the stated term of this Agreement at the time of such termination,
and, thereafter, for such additional continuation period as may be available
under COBRA or under any post-retirement group health plan or arrangement in
which Mr. Pulitzer participated prior to the termination of his employment or
service, (5) continued participation for at least one year or, if longer, for
the then balance remaining in the stated term of this Agreement in the Company's
life insurance plans at the same benefit level in effect immediately prior to
the termination date, (6) elimination of all restrictions, other than those
required by law, on any restricted or deferred stock awards previously granted
to Mr. Pulitzer and outstanding immediately prior to the termination date, and
(7) immediate vesting of all stock options previously granted to Mr. Pulitzer
and outstanding on the termination date. For the purposes of this Agreement, Mr.
Pulitzer may terminate his employment for "Good Reason" if:
(A) the Company materially diminishes Mr. Pulitzer's duties,
responsibilities or work conditions in a manner which is inconsistent
with the provisions hereof or with his status and position with the
Company;
(B) the Company wilfully fails or refuses to satisfy any of its
compensation obligations under this Agreement or violates the location
covenant set forth in section 5; or
(C) the Company fails to perform or breaches its obligations under any
other material provision of this Agreement and does not correct such
failure or breach (if correctable) within 30 days following notice
thereof by Mr. Pulitzer to the Company.
8. No Mitigation; No Offset. Mr. Pulitzer will have no obligation to
seek other employment or to otherwise mitigate the Company's obligations to him
arising from the termination of his employment or service, and no amounts paid
or payable to Mr. Pulitzer by the Company under this Agreement shall be subject
to offset for any remuneration to which Mr. Pulitzer may
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become entitled from any other source after his employment or service with the
Company terminates, whether attributable to subsequent employment,
self-employment or otherwise.
9. Restrictive Covenants.
(a) Nondisclosure of Confidential Information. Mr. Pulitzer
acknowledges that, during the course of his employment with the Company, he has
had and will have access to confidential and proprietary information, documents
and other materials relating to the Company which are not generally known to
persons outside the Company (whether conceived or developed by Mr. Pulitzer or
others) and confidential information, documents and other materials entrusted to
the Company by third parties, including, without limitation, financial
information, trade secrets, techniques, know-how, marketing and other business
plans, data, strategies and forecasts, and the substance of arrangements and
agreements with customers, suppliers and others (collectively, "Confidential
Information"). Any Confidential Information conceived or developed by Mr.
Pulitzer during the period of his employment will be the exclusive property of
the Company. Except as specifically authorized by the Company, Mr. Pulitzer will
not (during or after his employment hereunder) disclose Confidential Information
to any third person, firm or entity or use Confidential Information for his own
purposes or for the benefit of any third person, firm or entity other than (1)
as may be legally required in response to any summons, order or subpoena issued
by a court or governmental agency, or (2) Confidential Information which is or
becomes available to the general public through no act or failure to act by Mr.
Pulitzer.
(b) Non-solicitation. During employment and for a period of one
year after the termination of his employment, Mr. Pulitzer will not, directly or
indirectly, solicit, induce or otherwise attempt to influence any employee of
the Company or any subsidiary or other affiliate thereof to leave employment
therewith.
(c) Remedies. Mr. Pulitzer acknowledges and agrees that damages in
an action at law for breach of any of the provisions of this section will be
difficult to determine and will not afford a full and adequate remedy and,
therefore, agrees that the Company, in addition to seeking damages in an action
at law, may seek specific performance and such equitable or other remedies as
may be available for breach of this section, including, without limitation, the
issuance of a temporary or permanent injunction, without the necessity of a
bond. Except as otherwise provided in this section, the provisions of this
subsection (c) shall not be construed as a waiver by Mr. Pulitzer of any rights
which Mr. Pulitzer may have to offer defenses to any request made by the Company
for injunctive relief.
(d) Survival. The obligations set forth in this section 9 shall
survive the termination of Mr. Pulitzer's employment or service under this
Agreement.
10. Litigation Assistance. Mr. Pulitzer will cooperate with the
Company, during the term of his employment and thereafter, by making himself
reasonably available to testify on behalf of the Company or any subsidiary or
affiliate of the Company in any action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, and to reasonably assist the Company
or any such subsidiary or affiliate in any such action, suit, or proceeding by
providing information and meeting and consulting with the Board or its
representatives or counsel, or representatives or counsel to the Company or any
such subsidiary or affiliate, as reasonably requested; provided, however, that
the same does not materially interfere with his then current personal or
professional
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activities. The Company will reimburse Mr. Pulitzer, on an after-tax basis, for
all expenses reasonably incurred by him in connection with his provision of
testimony or assistance.
11. Resolution of Disputes. Any controversy or claim arising out of or
relating to this Agreement or any breach or asserted breach hereof, other than
an action or claim seeking injunctive relief under section 9, shall be resolved
by binding arbitration, to be held in St. Louis in accordance with the rules and
procedures of the American Arbitration Association. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. Pending the resolution of any arbitration or court proceeding, the
Company will continue payment of all amounts and benefits due Mr. Pulitzer under
this Agreement. All costs and expenses of any arbitration or court proceeding
(including fees and disbursements of counsel) shall be borne by the respective
party incurring such costs and expenses, but the Company shall reimburse Mr.
Pulitzer for such reasonable costs and expenses in the event he substantially
prevails in such arbitration or court proceeding.
12. Indemnification. If Mr. Pulitzer is made a party, or is threatened
to be made a party, to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of the fact that he
is or was a director, officer or employee of the Company, PPC or any subsidiary
or affiliate thereof or was serving at the request of the Company or any
subsidiary or affiliate as a director, officer, member, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether or not the
basis of such Proceeding is Mr. Pulitzer's alleged action in an official
capacity while serving as a director, officer, member, employee or agent, then
the Company will indemnify Mr. Pulitzer and hold him harmless to the fullest
extent legally permitted or authorized by the Company's certificate of
incorporation or bylaws or resolutions of the Company's Board or, if greater, by
the laws of the State of Delaware, against all cost, expense, liability and loss
(including, without limitation, attorney's fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by Mr. Pulitzer in connection therewith, except to the
extent attributable to Mr. Pulitzer's gross negligence or fraud, and such
indemnification shall continue as to Mr. Pulitzer even if he has ceased to be a
director, member, officer, employee or agent of the Company or other entity and
shall inure to the benefit of Mr. Pulitzer's heirs, executors and
administrators. The Company will advance to Mr. Pulitzer all reasonable costs
and expenses to be incurred by him in connection with a Proceeding within 20
days after receipt by the Company of a written request for such advance. Such
request shall include an undertaking by Mr. Pulitzer to repay the amount of such
advance if it shall ultimately be determined that he is not entitled to be
indemnified against such costs and expenses. The provisions of this section
shall not be deemed exclusive of any other rights of indemnification to which
Mr. Pulitzer may be entitled or which may be granted to him and shall be in
addition to any rights of indemnification to which he may be entitled under any
policy of insurance.
13. Assignment; Binding Nature. The services and duties to be performed
by Mr. Pulitzer hereunder are personal and may not be assigned. This Agreement
shall be binding upon and inure to the benefit of the Company, its successors
and assigns and Mr. Pulitzer and his heirs and representatives. The Company may
assign this Agreement to a successor in interest, provided that any such
assignee affirmatively adopts and agrees to fulfill all obligations to Mr.
Pulitzer hereunder and the Company remains secondarily liable to Mr. Pulitzer
therefor.
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14. No Impediment to Agreement. The Company represents and warrants
that it is fully authorized and empowered to enter into this Agreement and that
the performance of its obligations under this Agreement will not violate any
agreement between it and any other person, firm or organization. Mr. Pulitzer
represents and warrants that there is no legal or other impediment which would
prohibit him from entering into this Agreement or which would prevent him from
performing his duties hereunder.
15. Amendment or Waiver. No provision in this Agreement may be amended
unless such amendment is agreed to in writing and signed by Mr. Pulitzer and an
authorized officer of the Company. Except as set forth herein, no delay or
omission to exercise any right, power or remedy accruing to any party shall
impair any such right, power or remedy or shall be construed to be a waiver of
or an acquiescence to any breach hereof. No waiver by either party of any breach
by the other party of any condition or provision contained in this Agreement to
be performed by such other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent time.
Any waiver must be in writing and signed by Mr. Pulitzer or an authorized
officer of the Company, as the case may be.
16. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
17. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of Mr. Pulitzer's employment to the
extent necessary to the intended preservation of such rights and obligations.
18. Beneficiaries; References. Mr. Pulitzer shall be entitled, to the
extent permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Mr. Pulitzer's death by giving the Company written notice thereof. In the event
of Mr. Pulitzer's death or a judicial determination of his incompetence,
reference in this Agreement to Mr. Pulitzer shall be deemed, where appropriate,
to refer to his beneficiary, estate or other legal representative.
19. Notices. Any notice given to a party shall be in writing and shall
be deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the party concerned at the address indicated below or to such changed address as
such party may subsequently give such notice of.
If to the Company: Pulitzer Inc.
000 Xxxxx Xxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Secretary
If to Mr. Pulitzer: Xxxxxxx X. Xxxxxxxx
625 So. Skinker Xxxxxxxxx, #0000
Xx. Xxxxx, Xxxxxxxx 00000
20. Withholding. The Company may withhold taxes from any and all
amounts due Mr. Pulitzer as may be required to be withheld pursuant to
applicable law.
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21. Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of Delaware without reference to
principles of conflict of laws.
22. Entire Agreement. This Agreement contains the entire understanding
and agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
Except as specifically provided in this Agreement, the existence of this
Agreement shall not be interpreted to preclude, prohibit or restrict Mr.
Pulitzer's participation in any other employee benefit or other plans or
programs in which he currently participates.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
PULITZER INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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