EMPLOYMENT AGREEMENT
Exhibit
10.1
EMPLOYMENT
AGREEMENT (this “Agreement”),
dated
as of August 18, 2008, between Equity Media Holdings Corporation, a Delaware
corporation (the “Company”)
and
Xxxx X. Xxxxxxxx (“Executive”).
WHEREAS,
the Company desires to retain and compensate Executive, and Executive desires
to
be retained and compensated, for his services to the Company Executive effective
as of June 14, 2008 (the “Commencement
Date”);
and
WHEREAS,
Executive is willing to enter into such employment agreement on the terms,
conditions and provisions hereinafter set forth.
NOW,
THEREFORE, in consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, the parties hereby
agree as follows:
1. Employment
and Duties.
(a) During
the Term (as defined in Section 4), the Company shall employ Executive in the
position of Chief Executive Officer of the Company. Executive shall have such
responsibilities, duties and authorities reasonably accorded to and expected
of
a chief executive officer, as well as those that may be established by Board
of
Directors of the Company from time to time (the “Board”),
which
responsibilities, duties and authorities will be generally consistent with
those
of a chief executive officer. Executive hereby accepts this employment upon
the
terms and conditions contained herein. Executive agrees to devote a significant
portion of his business time, attention and efforts to promote and further
the
business of the Company and in no circumstance less time than that necessary
to
responsibly and diligently execute his duties hereunder. Subject to Section
3,
Executive shall be able to devote the remainder of his business time to other
commercial, charitable and community activities, so long as such activities
do
not interfere with the discharge of his duties and responsibilities to the
Company.
(b) Executive
faithfully shall adhere to, execute and fulfill all policies established by
the
Board.
(c) Executive
shall not be required to be located in Little Rock Arkansas, but shall be
present in Little Rock, Arkansas on a regular basis and as necessary to
diligently and responsibly fulfill his duties hereunder. Executive understands
and agrees that he shall be required to travel for business reasons on behalf
of
the Company and Executive agrees that none of such travel requirements shall
constitute Good Reason (as defined below).
(d) So
long
as Executive’s employment hereunder shall be continuing, and provided that
Executive shall not be in breach of any of his obligations hereunder, Executive
shall be entitled to one seat on the Board of the Company.
2. Compensation.
For all
services rendered by Executive in any capacity required hereunder, the Company
shall compensate Executive as follows:
(a) Base
Salary.
During
the Term, Executive shall be paid a base salary at the rate of $25,000 per
month
(the “Base
Salary”),
which
shall accrue as of the Commencement Date, with accrued amounts paid to Executive
as and when the Company has cash flow in excess of the current 13-week
projection; provided, however, that amounts accrued from the Commencement Date
shall be paid to Executive no later than October 31, 2008, with the Base Salary
paid on regular monthly basis thereafter in accordance with the Company’s normal
payroll.
(b) Options.
On the
date of this Agreement, Executive shall be granted non-qualified options under
the Company’s existing stock option plan to purchase (i) 125,000 shares of the
Company’s common stock, all of which shall vest on December 13, 2008 and have a
per-share exercise price of $0.34 and (ii) an aggregate of 125,000 additional
shares of the Company’s common stock, which shall have a per-share exercise
price of $0.34, and which shall vest in three installments so long as Executive
is then employed by the Company as follows: (x) options to purchase 41,666
shares shall vest at such time as the Company’s current annual operating costs
have been reduced by at least $1 million; (y) options to purchase 41,667 shares
options shall vest at such time as the Company’s station group is cash flow
positive for at least one fiscal quarter and (z) options to purchase 41,667
shares shall vest on June 13, 2009. All options shall vest upon a “Change in
Control” as defined in the Company’s 2007 Stock Incentive Plan under which they
are granted.
The
options shall be governed by the stock option agreement in the Company’s
customary form under such plan.
(c) Bonus.
Executive shall be entitled to an aggregate bonus of up to $300,000 payable
as
follows: (i) 50% of such bonus shall be paid as soon as practicable following
consummation by the Company of both (1) sales of Company stations or related
licenses having aggregate gross proceeds to the Company of at least $20 million
(provided that the currently pending sales to Xxxxx Communications and
affiliates thereof shall not be counted towards fulfillment of this provision)
and (2) a repurchase of the Company’s former RTN subsidiary by the Company under
the option granted to it by Xxxxx Communications; (ii) 25% of such bonus shall
be paid as soon as practicable after such time as the Company’s station group is
cash flow positive for at least one fiscal quarter; and (iii) 25% of such bonus
shall be paid as soon as practicable after such time as the Company has secured
at least 20 news C.A.S.H services (a new client being that which was not a
C.A.S.H. services client as of the Commencement Date) that average at least
$20,000 per month in revenues to the Company.
(d) Change
in Control Payments.
Notwithstanding anything to the contrary contained in this Agreement, upon
any
Change in Control occurring after the date of this Agreement and during the
Term
of this Agreement, Executive shall be entitled to (1) continue to receive all
Base Salary payable in the then remaining term, paid in accordance with the
Company’s normal payroll and (2) additional payments equal to Base Salary during
the one year period immediately following the end of the then current Term.
Change in Control shall have the meaning ascribed to it in the Company’s 2007
Stock Incentive Plan. These payments shall be in lieu of and not in addition
to
the payments of Base Salary contemplated by Section 4 below.
(e) Benefits
and Other Compensation.
Executive shall be entitled to receive additional benefits and compensation
from
the Company as follows:
(i) Payment
of $1,200 per month for family medical insurance premium.
(ii) Reimbursement
for all business travel and other out-of-pocket expenses reasonably incurred
by
Executive in the performance of his services pursuant to this Agreement. All
reimbursable expenses shall be appropriately documented in reasonable detail
by
Executive upon submission of any request for reimbursement, and in a format
and
manner consistent with the Company’s expense reporting policy.
(iii) The
Company shall provide Executive with other executive perquisites as maybe
available to, or deemed appropriate for, Executive by the Board and shall allow
Executive to participate in all other company-wide employee benefits, including
a defined contribution pension plan and 401 (k) plan, as may be made available
generally to executive employees from time to time.
(iv) Executive
shall be entitled to two (2) weeks of paid vacation per calendar year (pro
rated
for partial calendar years worked), such vacation to be taken at such times
and
intervals as shall be determined by Executive. Vacation shall not be cumulative.
In addition, Executive shall be entitled to sick pay and personal days (e.g.,
bereavement, jury duty, etc.), if any, as may be made generally available to
Company employees from time to time.
(f) No
Other Compensation or Benefits; Payment.
The
compensation and benefits specified in this Section 2 shall be in lieu of any
and all other compensation and benefits. Payment of all compensation and
benefits to Executive hereunder shall be made in accordance with Company
policies in effect from time to time, including normal payroll practices, and
shall be subject to all applicable employment and withholding
taxes.
(g) Cessation
of Employment.
In the
event Executive shall cease to be employed by the Company for any reason, then
Executive’s compensation and benefits shall cease on the date of such event,
except as otherwise provided herein or in any applicable employee benefit plan
or program.
3. Non-Competition.
(a) Executive
shall not during the period of his employment by or with the Company and for
the
Applicable Period (defined below), for himself or on behalf of, or in
conjunction with, any other person, persons, company, partnership, limited
liability company, corporation or business of whatever nature:
(i) engage,
as an officer, director, manager, member, shareholder, owner, partner, joint
venturer, trustee, or in a managerial capacity, whether as an employee,
independent contractor, agent, consultant or advisor in any enterprise engaged
in the purchase or sale of television broadcast licenses, the licensing or
distribution of television programming or services similar to the C.A.S.H
services offered by the Company;
(ii) call
upon
any person who is at that time, or within the preceding twelve (12) months
has
been, an employee of the Company, for the purpose, or with the intent, of
enticing such employee away from, or out of, the employ of the Company or for
the purpose of hiring such person for Executive or any other person or entity,
unless any such person was terminated by the Company more than six (6) months
prior thereto;
(iii) call
upon
any person who, or entity that is then or that has been within one year prior
to
that time, a customer of the Company, for the purpose of soliciting or selling
products or services in competition with the Company; or
(iv) call
upon
any prospective acquisition or investment candidate, on the Executive’s own
behalf or on behalf of any other person or entity, which candidate was known
by
Executive to have, within the previous twelve (12) months, been called upon
by
the Company or for which the Company made an acquisition or investment analysis
or contemplated a joint marketing or joint venture arrangement with, for the
purpose of acquiring or investing or enticing such entity into a joint marketing
or joint venture arrangement.
Notwithstanding
the foregoing, nothing shall prohibit Executive from continuing in his current
roles as (i) chief executive officer and chairman of the board and principal
member of Enye Communications Holdings LLC, (ii) owner and principal officer
of
Broadcast Capital Inc., and (iii) chief executive officer, chairman of the
board
and owner of Blackstar Management LLC, except to the extent these roles
compromise his ability to diligently perform his obligations hereunder or these
companies directly compete with the Company for the same target customers in
the
same geographic locations.
For
purposes of this Section 3:
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the
term “Company”
shall be deemed to include all subsidiaries and affiliates of the Company;
and
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| · |
the
term “Applicable
Period”
shall mean that period during which the Executive is entitled to any
payments under the terms of this
Agreement.
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(b) Because
of the difficulty of measuring economic losses to the Company as a result of
a
breach of the foregoing covenant, and because of the immediate and irreparable
damage that could be caused to the Company for which it would have no other
adequate remedy, Executive agrees that the foregoing covenant may be enforced
by
the Company in the event of breach by him, by injunctions and restraining
orders.
(c) It
is
agreed by the parties that the foregoing covenants in this Section 3 impose
a
reasonable restraint on Executive in light of the activities, business and
plans
of the Company; it is also the intent of the Company and Executive that such
covenants be construed and enforced in accordance with any change in the
activities, business or plans of the Company throughout the Term.
(d) The
covenants in this Section 3 are severable and separate, and the unenforceability
of any specific covenant shall not affect the provisions of any other
covenant.
(e) All
of
the covenants in this Section 3 shall be construed as an agreement independent
of any other provision in this Agreement, and the existence of any claim or
cause of action of Executive against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement of
such covenants; provided, however, that the Company’s failure to make payments
to Executive under Section 2 or Section 4 of this Agreement shall constitute
such a defense.
(f) Notwithstanding
any of the foregoing, if any applicable law shall reduce the time period during
which Executive shall be prohibited from engaging in any competitive activity
described in Section 3(a) hereof, the period of time for which Executive shall
be prohibited pursuant to Section 3(a) hereof shall be the maximum time
permitted by law.
4. Term;
Termination; Rights on Termination.
The
term of this Agreement shall begin on the Commencement Date and continue for
one year
(the
“Term”).
Notwithstanding any provision in this Agreement to the contrary, this Agreement
and Executive’s employment may be terminated in any one of the following
ways:
(a) Death.
The
death of Executive shall immediately terminate this Agreement with no severance
compensation due to Executive’s estate.
(b) Disability.
If, as
a result of Executive’s incapacity due to physical or mental illness, Executive
shall not have performed his duties hereunder on a full-time basis for ninety
(90) days or more in any one hundred twenty (120) day period, Executive’s
employment under this Agreement may be terminated by the Company upon thirty
(30) days written notice if Executive is unable to resume his full time duties
at the conclusion of such notice period. Executive’s compensation during any
period of disability prior to the effective date of such termination shall
be
the amounts normally payable to him in accordance with his then current annual
base salary, reduced by the amounts of disability pay, if any, paid to Executive
under any Company disability program. Executive shall not be entitled to any
further compensation from the Company for any period subsequent to the effective
date of such termination, except for pay or benefits, if any, in accordance
with
then existing severance policies of the Company and the severance terms of
Company benefit plans.
(c) Termination
by the Company.
(i) For
Cause.
The
Company may terminate this Agreement immediately upon written notice to
Executive for cause, which shall be: (1) Executive’s conviction of, or plea of
nolo contendere to, a felony or other crime involving moral turpitude; (2)
Executive’s breach of any fiduciary duty owed to the Company or its subsidiaries
or affiliates, or breach of the provisions of Section 3 or Section 6 hereof,
(3)
any other material breach by Executive of this Agreement that is not cured
within ten (10) days of written notice to Executive, or (4) Executive’s
commission of (A) any act of willful dishonesty or fraud, (B) any act of
embezzlement or other misappropriation of Company assets, or (C) gross
negligence or intentional nonperformance of duties, so long as such breach
or
matter is not corrected or cured to the Company’s reasonable satisfaction within
ten (10) days of notice to Executive thereof. In the event of a termination
for
Cause, as enumerated above, Executive shall have no right to any severance
compensation.
(ii) Without
Cause.
In
addition to the provisions of Section 4(c)(i), the Company may, at any time,
terminate this Agreement upon written notice to Executive, if such termination
is approved by a majority of the Board of the Company. In the event of such
a
termination “Without Cause,” Executive shall have the right to receive severance
compensation as set forth below in Section 4(f).
(d) Termination
by Executive For Good Reason.
Executive may terminate this Agreement upon thirty (30) days’ written notice to
the Company in the event of (1) a material breach by the Company of the terms
of
this Agreement, or (2) the Board assigning Executive duties that are not
commensurate with the position of chief executive officer or president, so
long
as such breach or matter is not corrected or cured within such thirty (30)
day
period. Such events shall hereinafter be referred to as “For
Good Reason.”
In
the
event of a termination For Good Reason, Executive shall have the right to
receive severance compensation as set forth below in Section 4(f). If Executive
resigns or otherwise terminates his employment for any reason other than For
Good Reason, Executive shall receive no severance compensation.
(e) Payment
Through Termination.
Upon
termination of this Agreement for any reason provided above, Executive (or
Executive’s estate, as applicable) shall be entitled to receive all compensation
earned and all benefits and reimbursements (including payments for accrued
vacation and sick leave) due through the effective date of termination.
Additional compensation subsequent to termination, if any, shall be due and
payable to Executive only to the extent, and in the manner, expressly provided
above. All other rights and obligations under this Agreement shall cease as
of
the effective date of termination, except that Executive’s obligations under
Sections 3, 5, 6, 7 and 9 shall survive such termination in accordance with
their terms.
(f) Severance.
If
Executive’s employment is terminated by the Company pursuant to Section 4(c)(ii)
Without Cause, or by Executive pursuant to Section 4(d) For Good Reason, the
Company shall, subject to Executive’s execution of a general release of all
claims and rights that Executive may have against the Company and its related
entities and their respective officers, managers, and employees, including
but
not limited to all claims and rights relating to Executive’s employment and/or
termination, in a form reasonably acceptable to the Company and Executive (a
“Release”),
continue to pay Executive (the “Severance”)
his
then current Base Salary for the remainder of the Term and all options granted
hereunder shall be immediately vested. Notwithstanding anything herein to the
contrary, the Severance payments shall terminate ten (10) days after the Company
provides notice to Executive that the Company intends to terminate such payments
because Executive has breached a provision of Sections 3, 5, or 6 of this
Agreement. It is understood and agreed that the Release shall not release or
affect (x) any right of Executive to indemnification in his capacity as an
officer of the Company or member of the Board, on the same terms available
to
other officers or members of the Board generally or (y) any remaining
obligations of the Company under this Agreement to be performed from and after
the date of such Release.
(g) Non-Disparagement.
Each of
the Company and Executive agrees that, during the Term and following the
expiration or early termination thereof, it or he, as the case may be, will
not
make any derogatory comments, either written or oral, which could be construed
as negative or derogatory concerning the other, to any persons including, but
not limited to, clients, customers, potential clients, potential customers,
vendors, employees, or financial or credit institutions.
5. Inventions.
Executive shall disclose promptly to the Company any and all significant
conceptions and ideas for inventions, improvements and valuable discoveries
(“Inventions”),
whether patentable or not, that are conceived or made by Executive, solely
or
jointly with another, during the period of employment and that are directly
related to the business or activities of the Company and that Executive
conceives as a result of his employment by the Company. Executive hereby assigns
and agrees to assign all his interests in the Inventions to the Company or
its
nominee. Executive agrees that all Inventions that he develops or conceives
and/or documents during such period shall be deemed works made-for-hire for
the
Company within the meaning of the copyright laws of the United States or any
similar or analogous law or statute of any other jurisdiction, and accordingly,
the Company shall be the sole and exclusive owner for all purposes for the
distribution, exhibition, advertising and exploitation of the Inventions or
any
part of them in all media and by all means now known or that may hereafter
be
devised, throughout the universe in perpetuity. Executive agrees that in
furtherance of the foregoing, he shall disclose, deliver and assign to the
Company all Inventions and shall execute all such documents, including patent
and copyright applications, as the Company reasonably shall deem necessary
to
further document the Company’s ownership rights therein and to provide the
Company the full and complete benefit thereof. Should any arbitrator or court
of
competent jurisdiction ever hold that the materials derived from Executive’s
contributions to the Company do not constitute works made-for-hire, Executive
hereby irrevocably assigns to the Company, and agrees that the Company shall
be
the sole and exclusive owner of, all right, title and interest in and to all
Inventions, including the copyrights and any other proprietary rights arising
therefrom. Executive reserves no rights with respect to any Inventions, and
hereby acknowledges the adequacy and sufficiency of the compensation paid and
to
be paid by the Company to Executive for the Inventions and the contributions
he
will make to the development of any such information or Inventions. Executive
agrees to cooperate with all lawful efforts of the Company to protect the
Company’s rights in and to any or all of such information and Inventions and
will, at the request of the Company, execute any and all instruments or
documents necessary or desirable in order to register, establish, acquire,
prosecute, maintain, perfect or defend the Company’s rights in and to the
Inventions. Any such Inventions that were developed by Executive prior to his
employment with the Company (and its predecessors) shall not be covered by
the
terms of this Section 5. However, to the extent that any such Inventions are
deemed owned by Executive and Executive has permitted the Company (or its
predecessors) to use such Inventions, the Company shall have a perpetual,
non-exclusive, royalty-free license to use such Inventions, which license shall
survive the termination of this Agreement.
6. Confidential
Information and Trade Secrets.
Executive acknowledges and agrees that all Confidential Information, Trade
Secrets and other property delivered to or compiled by Executive by or on behalf
of the Company or its representatives, vendors or customers that pertain to
the
business of the Company shall be and remain the property of the Company and
be
subject at all times to its discretion and control. Executive agrees that he
shall maintain strictly the confidentiality of, and shall not, during, or for
a
period of five (5) years after, the expiration of the Term, disclose, any such
Confidential Information or Trade Secrets.
For
purposes hereof, “Confidential
Information”
means
and includes:
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All
business or financial information, plans, processes and strategies,
market
research and analyses, projections, financing arrangements, consulting
and
sales methods and techniques, expansion plans, forecasts and forecast
assumptions, business practices, operations and procedures, marketing
and
merchandising information, distribution techniques, customer information
and other business information, including records, designs, patents,
business plans, financial statements, manuals, memoranda, lists and
other
documentation respecting the Company, and subsidiaries and
affiliates;
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| · |
All
information and materials that are proprietary and confidential to
a third
party and that have been provided to the Company by such third party
for
Company use; and
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| · |
All
information derived from such Confidential
Information.
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Confidential
Information shall not include information and materials that are already, or
otherwise become, known by or generally available to the public without
restriction on disclosure, other than as a result of an act or omission by
Executive in breach of the provisions of this Agreement or any other applicable
agreement between Executive and the Company.
For
purposes hereof, the term “Trade
Secret”
shall
have the meaning given in the Delaware enactment of the Uniform Trade Secrets
Act, and shall include, without limitation, the whole or any portion or phase
of
any scientific or technical information, design, process, formula, concept,
data
organization, manual, other system documentation, or any improvement of any
thereof, in any case that is valuable and secret (in the sense that it is not
generally known to the Company’s competitors). Any such Confidential Information
and Trade Secrets that were developed by Executive prior to his employment
with
the Company (and its predecessors) shall not be covered by the terms of this
Section 6.
7. Return
of Company Property; Termination of Employment.
At such
time, if ever, as Executive’s employment with the Company is terminated, he
shall be required to participate in an exit interview for the purpose of
assuring a proper termination of his employment and his obligations hereunder.
On or before the actual date of such termination, Executive shall return to
the
Company all records, materials and other physical objects relating to his
employment with the Company, including, without limitation, all Company credit
cards and access keys and all materials relating to, containing or derived
from
any Trade Secrets or Confidential Information.
8. No
Prior Agreements.
Executive hereby represents and warrants to the Company that the execution
of
this Agreement by Executive and his employment by the Company and the
performance of his duties hereunder will not violate or be a breach of any
agreement with a former employer, client or any other person or entity. Further,
Executive agrees to indemnify the Company for, and hold the Company and harmless
from, and against, all claims, including, but not limited to, attorneys’ fees
and expenses of investigation, by any such third party that such third party
may
now have or may hereafter come to have against the Company based upon or arising
out of any noncompetition agreement, invention or secrecy agreement between
Executive and such third party that was in existence as of the date of this
Agreement.
9. Binding
Effect; Assignment.
This
Agreement shall be binding upon, inure to the benefit of and be enforceable
by
the parties hereto and their respective heirs, legal representatives, successors
and assigns. Executive understands that he has been selected for employment
by
the Company on the basis of his personal qualifications, experience and skills.
Executive agrees, therefore, that he cannot assign all or any portion of his
performance under this Agreement. In addition, the Company may not assign this
Agreement except to a subsidiary of the Company, without the prior written
consent of Executive.
10. Complete
Agreement.
This
Agreement is not a promise of future employment. Executive has no oral
representations, understandings or agreements with the Company or any of its
officers, directors or representatives covering the same subject matter as
this
Agreement. This Agreement is the final, complete and exclusive statement and
expression of the agreement between the Company and Executive regarding the
subject matter contained herein and of all the terms of this Agreement, it
cannot be varied, contradicted or supplemented by evidence of any prior or
contemporaneous oral or written agreements and any such prior agreements are
hereby superseded by this Agreement.
11. Notice.
Whenever any notice is required hereunder, it shall be given in writing
addressed as follows:
To
the
Company:
Attention:
Fax
No.:
with
a
copy to:
Xxxxxxxx
Xxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx Xxxx Xxxxxx, Esq.
Fax
No.:
(000) 000-0000
To
Executive:
Fax
No.:
with
a
copy to:
Attn:
Fax
No.:
Notice
shall be deemed given and effective three (3) days after the deposit in the
U.S.
mail of a writing addressed as above and sent first class mail, certified,
return receipt requested, or when actually received, if earlier. Either party
may change the address for notice by notifying the other party of such change
in
accordance with this Section 11.
12. Severability;
Headings.
It is
the intention of the parties that the provisions herein shall be enforceable
to
the fullest extent permitted under applicable law and that the unenforceability
of any provision or provisions hereof, or any portion thereof, shall not render
unenforceable or otherwise impair any other provisions or portions thereof.
If
any provision of this Agreement is determined by a court of competent
jurisdiction to be unenforceable, void or invalid in whole or in part, this
Agreement shall be deemed amended to delete or modify, as necessary, the
offending provisions or portions thereof and to alter the bounds thereof,
including specifically, any time, place and manner restrictions contained in
any
of the restrictive covenants contained herein, in order to render it valid
and
enforceable. In any event, the balance of this Agreement shall be enforced
to
the fullest extent possible without regard to such unenforceable, void or
invalid provisions or part thereof. The Section headings herein are for
reference purposes only and are not intended in any way to describe, interpret,
define or limit the extent or intent of this Agreement or of any part
hereof.
13. Arbitration.
Any
unresolved dispute or controversy arising under or in connection with this
Agreement (excluding specifically, however, claims and counterclaims of the
Company arising out of any breach by Executive of the provisions of Sections
3,
5, 6, 7, 8 and 9) shall be settled exclusively by arbitration, conducted in
accordance with the rules of the American Arbitration Association then in
effect, as modified hereby. Notwithstanding anything contained in the rules
to
the contrary, however, the arbitrators shall not have the authority to add
to,
detract from, or modify any provision hereof, nor to award punitive or special
damages to any injured party. Judgment may be entered on the arbitrators’ award
in any court having jurisdiction. The arbitration proceeding shall be held
in
Little Rock, Arkansas.
14. Governing
Law.
This
Agreement shall in all respects be construed according to the laws of the State
of Arkansas without reference to its conflicts of laws provisions.
15. Counterparts.
This
Agreement may be executed in any number of counterparts and any party hereto
may
execute any such counterpart, each of which when executed and delivered shall
be
deemed to be an original and all of which counterparts taken together shall
constitute but one and the same instrument. This Agreement shall become binding
when one or more counterparts taken together shall have been executed and
delivered (which deliveries may be by telefax) by the parties. It shall not
be
necessary in making proof of this Agreement or any counterpart hereof to produce
or account for any of the other counterparts.
16. Modifications.
This
Agreement may not be changed, waived, discharged or terminated orally, but
only
by an instrument in writing signed by the party against which enforcement of
such change, waiver, discharge or termination is sought, or his or its duly
authorized representative or officer. No waiver by Executive or the Company
of
any breach of any provision hereof will be deemed a waiver of any prior or
subsequent breach of the same or any other provision. The failure of Executive
or the Company to exercise any right provided herein will not be deemed on
any
subsequent occasions to be a waiver of any right granted hereunder to either
of
them.
17. EXECUTIVE
ACKNOWLEDGES THAT, BEFORE SIGNING THIS AGREEMENT, HE WAS GIVEN AN OPPORTUNITY
TO
READ IT, CAREFULLY EVALUATE IT, AND ASK ANY QUESTIONS HE MAY HAVE HAD REGARDING
IT OR ITS PROVISIONS. EXECUTIVE ALSO ACKNOWLEDGES THAT HE HAD THE RIGHT TO
HAVE
THIS AGREEMENT REVIEWED BY AN ATTORNEY OF HIS CHOOSING AND THAT THE COMPANY
GAVE
HIM A REASONABLE PERIOD OF TIME TO DO SO IF HE SO WISHED. EXECUTIVE FURTHER
ACKNOWLEDGES THAT HE IS NOT BOUND BY ANY AGREEMENT THAT WOULD PREVENT HIM FROM
PERFORMING HIS DUTIES AS SET FORTH HEREIN, NOR DOES HE KNOW OF ANY OTHER REASON
WHY HE WOULD NOT BE ABLE TO PERFORM HIS DUTIES AS SET FORTH HEREIN.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
| EQUITY MEDIA HOLDINGS CORPORATION | ||
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| By: | ||
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Name:
Title:
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| EXECUTIVE: | ||
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XXXX
X. XXXXXXXX
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