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EXHIBIT 10.215
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT made as of this 11th day of June, 1998, (this
"Agreement") by and between Xxxxxx Communications Corporation, a Delaware
corporation with its principal place of business at 000 Xxxxxxxxxx Xxxx Xxxx,
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000 ("Company") and Xxxxxxx X. Xxxxxxxx, an
individual, currently residing at the address set forth under such individual's
signature below (the "Executive") (collectively, the "Parties").
WHEREAS, Company desires to employ Executive as Vice President, General Counsel
and Chief Legal Officer, and the Parties desire to enter into this agreement to
secure Executive's employment as Vice President, General Counsel and Chief
Legal Officer during the term hereof, all on the terms and conditions set forth
herein.
NOW, THEREFORE, the Parties agree as follows:
1. The Company agrees to employ the Executive and the Executive agrees to
serve the Company as Vice President, General Counsel and Chief Legal
Officer based primarily at the Company's West Palm Beach, Florida
offices, on the terms and conditions hereinafter set forth.
2. Employment of the Executive by the Company pursuant to this Agreement
will be for a five (5) year period commencing effective January 1,
1998, unless sooner terminated, pursuant to Paragraph 7 hereof (the
"Term of Employment").
3. Subject to the direction and control of the Chairman of the Board and
Chief Executive Officer, and such other senior executive officer as
the Chairman of the Board may direct to whom Executive will report,
the Executive shall have all of the power and authority inherent in
the position of Vice President, General Counsel and Chief Legal
Officer and shall supervise and be responsible for the operations and
management of the Company and its subsidiaries. The Executive shall
also have such other executive powers and duties, consistent with his
responsibilities as Vice President, General Counsel and Chief Legal
Officer, as may, from time to time, be prescribed by the Chairman of
the Board and Chief Executive Officer. The Executive agrees to render
his services under this Agreement loyally and faithfully,
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to the best of his abilities and in substantial conformance with all
laws, rules and Company policies, and in connection therewith, will
not improperly or without good cause, in the best interest of the
Company, disclose any trade secrets or other confidential information
of the Company. Without limiting the foregoing, except as expressly
modified herein, Executive shall be subject to all of the Company's
policies including payola, plugola and conflicts of interests, as well
as the following:
(1) Executive will comply with all the Company and professional
standards governing Executive's objectivity in the
performance of Executive's duties, including restrictions on
outside activities, investments, business interests, or other
involvements which could compromise Executive's objectivity
or create an impression of conflict of interest. Executive
will not, without the prior approval of the Chairman of the
Board or the Chief Executive Officer , accept any gift,
compensation, or gratuity (which excludes business meals and
entertainment received by Executive in the ordinary course of
business) from any person or entity with which the the
Company or any of its broadcast properties is or may be in
competition or in any instance where there is a stated or
implied expectation of favorable treatment of that person or
entity. Executive will not, without the prior written
approval of the Chairman of the Board or the Chief Executive
Officer, take advantage of any business opportunity or
situation or engage in any enterprise or venture of which the
the Company may have an interest on his or her own behalf, if
said business opportunity or situation, enterprise or venture
is related in any way to or is similar to the business of the
the Company.
(2) In performing Executive's duties under this Agreement,
Executive shall conduct himself with due regard to social
conventions, public morals and standards of decency, and will
not cause or permit any situation or occurrence which would
tend to degrade, scandalize, bring into public disrepute, or
otherwise lower the community standing of Executive or the
Company's public image.
4. Company will pay the Executive a base salary (the "Base Salary"), to
be paid on the same payroll cycle as other salaried employees of the
Company, at an annual rate for 1998 of $196,875, which Base Salary
shall be increased annually, effective
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January 1 of each year thereafter during the Term of Employment, by an
amount equal to not less than 10% of the Base Salary in effect for the
most recently ended calendar year. 1.
In addition to the Base Salary, the Executive agrees to participate in
the Company's Executive Bonus Plan and receive bonus awards from time
thereunder, subject to the satisfaction of the terms and conditions
set forth therein. Without limiting the foregoing, nothing shall
preclude Executive from receiving special cash bonus awards not
included within the Executive Bonus Plan, as determined from time in
the sole discretion of the Company. In addition to Executive's Base
Salary and participation in the Executive Bonus Plan, Executive may,
as determined from time to time, in the sole discretion of the
Company, be eligible to receive or participate in various non-cash
compensation programs, including, without limitation, annual and
special non-cash bonus awards, grants of stock options, restricted
stock, "phantom-equity" and stock appreciation rights (collectively,
"Non-Cash Bonus Awards"). Employee's rights in respect of any Non-Cash
Compensation shall be governed under the terms of a separate document
or documents, if any Non-Cash Compensation is to be awarded to
Employee.
The Company will have the right to withhold from payments otherwise
due and owing to Executive or to require the Executive to remit to the
Company in cash upon demand an amount sufficient to satisfy any
federal (including FICA and FUTA amounts), state, and/or local
withholding tax requirements at the time the Executive recognizes
income for federal, state, and/or local tax purposes with respect to
any payments to Executive under the terms hereof or under any other
compensation arrangements, including, Non-Cash Compensation. If any
excise tax withholding by the Company is required pursuant to Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code") on
an "excess parachute payment," as this term is defined in Section 4999
of the Code, in connection with any payments made under the terms
hereof, or under any other compensation arrangements, including, the
Executive Bonus Plan and any Non-Cash Compensation, the Company will
be required to pay compensation to the Executive ("Gross-Up Payment")
in an amount equal to the excise tax withholding required to be
withheld by the Company on such amounts paid to Executive and the
Gross-Up Payment itself. The Company then will withhold the Gross-Up
Payment to satisfy this withholding obligation. Except as
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otherwise provided by this Paragraph 4, the Company will not be liable
to Executive for any tax consequences incurred by Executive with
respect to payments to Executive under the terms hereof or under any
other compensation arrangements, including, Non-Cash Compensation.
5. During the Term of Employment, the Executive shall be eligible to
participate in all employee benefit plans and arrangements now in
effect or which may hereafter be established, which are generally
available to other senior executives of the Company, including,
without limitation, all life, group insurance and medical plans and
all disability, retirement and other employee benefit plans of the
Company, as long as any such plan or arrangement remains generally
applicable to other senior executives of the Company.
6. The Executive shall be reimbursed for all reasonable expenses incurred
by him in the discharge of his duties, including, but not limited to,
expenses for entertainment and travel. The Executive shall account to
the Company for all such expenses.
7. Notwithstanding the provisions of Paragraph 2 of this Agreement, the
Executive's Term of Employment pursuant to this Agreement shall
terminate on the earliest of the following dates:
(1) The date of the Executive's death. In such event, the Company
shall pay to the Executive's legal representatives or named
beneficiaries (as the Executive may designate from time to
time in a writing delivered to the Company) the Executive's
Base Salary for a one (1) year period following the date of
the Executive's death;
(2) If the Board of Directors chooses to give the Executive
notice of termination of his employment due to his
disability, as defined in the Company's Long Term Disability
Plan, a date specified in the notice which shall be not less
than thirty (30) days after the date on which the notice is
received by the Executive. In the event that the Executive's
employment is terminated due to his disability under this
subparagraph (b), the Executive or the Executive's legal
representative shall continue to be paid the Executive's Base
Salary then in effect for the lesser of (i) two years and
(ii) the remaining Term of Employment. If, prior to the
specified termination date in such notice by the
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Company, the Executive's illness or disability has terminated
and the Executive has resumed his duties under this
Agreement, the Executive shall be entitled to resume
employment under this Agreement as though such notice had not
been given. The opinion of the Executive's physician as to
disability shall be deemed presumptively valid;
(3) If the Board of Directors chooses to give the Executive
notice of termination of his employment for "good cause", a
date specified in the notice, consistent with the provisions
of subparagraph (c). The term "good cause" as used in this
Agreement shall mean the occurrence of any of the following
events:
(1) Executive's arrest for the commission of (A) a
felony, (B) any criminal act with respect to
Executive's employment (including any criminal act
involving a violation of the Communications Act of
1934, as amended, or regulations promulgated by the
Federal Communications Commission), or (C) any act
that materially threatens to result in suspension,
revocation, or adverse modification of any FCC
license of any broadcast station owned by any
affiliate of the Company or would subject any such
broadcast station to fine or forfeiture;
(2) Executive's taking of any action or inaction which
would cause the Company to be in default under any
material contract, lease or other agreement;
(3) Executive's dependence on alcohol or illegal drugs;
(4) Failure or refusal to perform according to or follow
the lawful policies and directives of the Chairman
of the Board or the Chief Executive Officer;
(5) Executive's misappropriation, conversion or
embezzlement of the assets of the Company or any
affiliate of the Company;
(6) A material breach of this Agreement by Executive,
including engaging in action in violation of
Paragraph 8 of this Agreement; or
(7) Any representation of Executive in Paragraph 9 of
this Agreement being false when made; or
(8) The Executive voluntarily, including retirement,
ceases his employ with the Company at a time when
the Company is not in material breach of this
Agreement.
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In the event of a termination under this subparagraph (c),
other than pursuant to clause (c)(vIII), the Company shall
notify the Executive of its intentions to terminate his
employment and the specific reason(s) therefore, and the
Executive, on at least ten (10) business days notice, shall
have had an opportunity to respond thereto; and, provided
further, if the basis for such termination is susceptible of
being cured by the Executive, the Company shall afford the
Executive a reasonable period, not to exceed 60 days, to
effect such cure, and the Executive's employment may not be
terminated during said period.
In the event of termination for good cause, the Company will
be released from all further obligation to the Executive
under this Agreement, except for such salary as may have been
earned or bonus award made but not paid prior to the
termination;
(4) The date on which the Board of Directors chooses to notify
the Executive that the Board of Directors, in its sole
discretion, has determined that it is in the best interest of
the Company to terminate the Executive's employment. In the
event of such termination, the Executive will continue to be
paid the Executive's Base Salary then in effect for the
lesser of (i) two years and (ii) the remaining Term of
Employment;
(5) On the date that the Executive terminates his employment for
Good Reason. For purposes of this subparagraph (e), "Good
Reason" shall mean that the Company has breached any of the
material terms, conditions and provisions of this Agreement.
In such case, the Executive shall notify the Company of his
intentions to terminate his employment and the specific
reason(s) therefor, and the Company, on at least ten (10)
business days notice, shall have an opportunity to respond
thereto; and, provided further, if the basis for such
termination is susceptible of being cured by the Company, the
Executive shall afford the Company a reasonable period, not
to exceed 60 days, to effect such cure, and the Executive may
not terminate his employment during said 60 day period. In
the event of such termination, the Executive will continue to
be paid Executive's Base Salary then in effect for the lesser
of (i) two years and (ii) the remaining Term of Employment;
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(6) If, within one year after a Change of Control (as defined
below), the Company terminates Executive's employment with
the Company without Cause, the Executive will continue to be
paid Executive's Base Salary then in effect for the lesser of
(i) two years and (ii) the remaining Term of Employment. For
purposes of this Agreement:
(1) A "Change of Control" will occur if (a) none of
Xxxxxx X. Xxxxxx, his estate, his wife, his lineal
descendants, or any trust created for the sole
benefit of any one or more of them during their
lifetimes, or any combination of any of the
foregoing, shall (i) own, directly or indirectly, at
least 35 percent of the issued and outstanding
capital stock of the Company or (ii) have voting
control, directly or indirectly, equal to at least
51 percent of the issued and outstanding capital
stock of the Company entitled to vote in the
election of Board of Directors of the Company; (b)
the approval by the shareholders of the Company of a
reorganization, merger, or consolidation, in each
case, with respect to which persons who were
shareholders of the Company immediately prior to
this reorganization, merger or consolidation do not,
immediately thereafter, own more than 50 percent of
the combined voting power entitled to vote generally
in the election of directors of the reorganized,
merged or consolidated company's (or any successor
entity's) then outstanding securities; or (c) a
liquidation or dissolution of the Company or of the
sale of all or at least 80 percent of the Company's
assets.
(7) The expiration of the Term of Employment as described in
Paragraph 2 of this Agreement.
Following the termination of the Executive's employment under
this Agreement upon the original stated Term of Employment,
the Company will have no further liability to the Executive
hereunder and no further payments will be made to him, except
as provided in subparagraphs (a) through (f) above or any
bonus awards not paid as of such termination, and except to
the extent that the Executive qualifies for benefits under
any employee benefit plan available to the Executive as
provided in Paragraph 5.
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8. Executive agrees that from the date of this Agreement until
the Covenant Termination Date (as defined in Paragraph 8(a)
below), Executive will not, directly or indirectly, whether
as sole proprietor, partner, lessor, venturer, stockholder,
director, officer, employee, consultant or in any other
capacity as principal or agent or through any person,
subsidiary, affiliate or employee acting as nominee or agent,
engage or participate in any of the following actions:
(1) Owning, leasing, managing, operating, controlling or
providing financial assistance (other than (i) in
connection with services provided by Executive as
the employee of a commercial or investment bank or
similar financial services business or consulting
business which extends credit to, makes investments
in, or provides financial advice or consulting
services to, broadcasting companies; (ii) as an
attorney in a practice of law) to any national (e.g.
reaching more than 30% of nationwide television
households) broadcast or cable television network or
television programming service;
(2) Influencing or attempting to influence any person or
entity who is a contracting party with the Company
or any subsidiary thereof (the "Xxxxxx Group") to
terminate any written or oral agreement with such
member of the Xxxxxx Group; or
(3) Hiring or attempting to hire for employment any
person who is employed by any member of the Xxxxxx
Group or attempting to influence any such person to
terminate employment with any member of the Xxxxxx
Group.
Nothing herein shall prohibit Executive from investing in any
broadcast company where such investment does not cause Executive to be
an "affiliate" of such entity under the terms of the Securities Act of
1993.
(2) "COVENANT TERMINATION DATE" means:
(1) If Executive's employment is terminated pursuant to a
termination for good reason pursuant to Paragraph
7(e), the earlier of (i) the last day
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of the 6th full calendar month after the termination
of employment and (ii) the expiration of the Term of
Employment.
(2) If Executive's employment is terminated pursuant to
a termination for good cause under Paragraph 7(c) or
a change of control under Paragraph 7(f), the last
day of the 12th full calendar month after the date
on which Executive's employment is terminated.
(3) If Executive's employment is terminated pursuant to
a termination for any reason other than by Executive
under Paragraph 7(e), or by Company under Paragraphs
7(c) and 7(f), the date on which Executive's
employment is terminated.
(3) Executive agrees that the Covenant Not to Compete is a
material part of Executive's obligations under this Agreement
for which the Company has agreed to compensate Executive as
provided in this Agreement. Accordingly, if Executive at any
time materially breaches this Covenant Not to Compete and the
Company is in compliance with all of its obligations
hereunder and under any other compensation agreements or
arrangements with Executive, then all rights of Executive to
compensation under this Agreement shall immediately
terminate, Company shall have no further liability to
Executive and no further payments (if any are otherwise
required to be made hereunder) shall be required to be made
to Executive.
(4) Executive expressly agrees that the services (s)he will
render are of a special and extraordinary character that
gives them a unique value; that the loss of such services
could not be reasonably or adequately compensated by an
action for damages; and that the Company may enforce this non
compete covenant without proof of actual damages. Executive
expressly agrees that his(her) services have special and
unique value to the Company and that the Company would be
irreparably injured by a breach of this Paragraph 8. Further,
Executive acknowledges the legitimate business interest of
the Company in the protection of its trade secrets,
confidential business lists and records, listener/client
goodwill and the training provided during employment.
Necessarily, then, any relationship of Executive with another
broadcast entity in the markets enumerated above during this
non-compete period would involve the transfer of one or all
of these items to that entity. The
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Executive agrees that the provisions in these paragraphs of
Paragraph 8 are reasonably necessary for the protection of
the Company's business; that they are not unreasonably
restrictive of his(her) rights; and that (s)he feels that any
of these restrictions placed upon him(her) are not
prejudicial to the public interest.
(5) If the covenant in this Paragraph 8 is held to be
unenforceable in any jurisdiction because of the duration or
scope thereof, the court making such determination shall have
the power to reduce the duration and/or scope of the
provision or covenant, and the provision or covenant in its
reduced form shall be enforceable; provided, however, that
the determination of such court shall not affect the
enforceability of this Paragraph 8 in any other jurisdiction.
9. To induce the Company to enter into this Agreement and to employ
Executive Executive, Executive represents and warrants to the Company
as of the date hereof and as of each date of payment of any
compensation under the terms hereof as follows:
(1) The execution, delivery and performance of this Agreement by
Executive does not conflict with result in a breach of, or
constitute a default under any covenant not to compete or any
other agreement, instrument, or license, to which Executive
is a party or by which Executive is bound.
(2) Executive has not:
(1) Been convicted of any felony;
(2) Committed any criminal act with respect to
Executive's current or any prior employment
(including any criminal act involving a violation of
the Communication Act of 1934, as amended, or
regulations promulgated by the FCC), or
(3) Committed any act that materially threatened to
result in suspension, revocation, or adverse
modification of any FCC license of any broadcast
station or which subjected any broadcast station to
fine or forfeiture.
(3) Executive is not dependent on alcohol or illegal drugs.
Executive recognizes that the Company shall have the right to
conduct random drug testing of its employees and that
Executive may be called upon in such a manner.
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10. Any dispute regarding this Agreement shall be decided by arbitration
by a single arbitrator in West Palm Beach, Florida, in accordance with
the Expedited Arbitration Rules of the American Arbitration
Association then obtaining unless the Parties mutually agree
otherwise; and, provided further, that both Parties will be entitled
to all rights of discovery in connection with such arbitration,
including, without limitation, all discovery rights described in the
Florida Rules of Civil Procedure. This undertaking to arbitrate shall
be specifically enforceable. The decision rendered by the arbitrator
will be final and judgment may be entered upon it in accordance with
appropriate laws in any court having jurisdiction thereof. During any
arbitration proceeding initiated by the Executive, the Company agrees,
to the extent that it may legally do so, to continue the Executive in
the Company's long-term disability, life and medical insurance plans.
11. Both during and after the Term of Employment, neither Party will
disclose the financial terms of this Agreement to persons not involved
in the operations of the business of the Company, except as required
by applicable law, regulation, the rules or regulations of a stock
exchange or association on which securities of the Company or any
parent company thereof are listed or legal process (including, without
limitation, oral questions, interrogatories, requests for information
or documents, subpoenas, civil investigative demands, orders,
judgments or decrees). As to persons involved in the operations of the
business of the Company, disclosure of such terms may be made only on
a need-to-know basis. This restriction shall not apply to members of
the Executive's immediate family nor to the Executive's professional
advisers, lenders and investors, provided such persons agree to keep
the financial terms confidential and not disclose them to third
parties.
12. Any waiver by either Party of a breach of any provision of this
Agreement shall not operate as to be construed to be a waiver of any
other breach of such provision of this Agreement. The failure of a
Party to insist upon strict adherence to any term of this Agreement on
one or more occasions shall not be considered a waiver or deprive that
Party of the right thereafter to insist upon strict adherence to that
term or any other term of this Agreement. Neither this Agreement nor
any part of it may be waived, changed or terminated orally, and any
amendment or modification must be in writing and signed by each of the
Parties. Any waiver of any right of the Company hereunder or any
amendment hereof shall require the approval of the
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members of the Compensation Committee of the Board of Directors who
are not employees of the Company or, if the Company does not have a
Compensation Committee or the Compensation Committee does not have any
members who are not employees of the Company, by the members of the
Board of Directors who are not employees of the Company. Until such
approval or waiver has been obtained, no such waiver or amendment
shall be effective.
13. The obligations and rights of the Executive under this Agreement shall
inure to the benefit of and shall be binding upon the heirs and legal
representatives of the Executive. Neither Party may assign this
Agreement without the prior written consent of the other.
14. This Agreement may be executed in any number of counterparts, each of
which shall, when executed, be deemed to be an original and all of
which shall be deemed to be one and the same instrument.
15. No action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or
agreements contained herein or made pursuant hereto.
16. This Agreement will be governed and construed and enforced in
accordance with the laws of the State of Florida.
17. This Agreement contains the entire understanding of the Parties
relating to the subject matter of this Agreement and supersedes all
other prior written or oral agreements. The Executive acknowledges
that, in entering into this Agreement, he does not rely on any
statements or representations not contained in this Agreement.
18. Any term or provision of this Agreement which is determined to be
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction.
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19. Except as otherwise specifically provided in this Agreement, all
notices and other communications required or permitted to be given
under this Agreement shall be in writing and delivery thereof shall be
deemed to have been made when such notice shall have been either (i)
deposited in first class mail, postage prepaid, return receipt
requested, or any comparable or superior postal or air courier service
then in effect, or (ii) transmitted by hand delivery, telegram, telex,
telecopier or facsimile transmission, to the party entitled to receive
the same at the address indicated below or at such other address as
such party shall have specified by written notice to the other party
hereto given in accordance herewith:
if to the Company: Xxxxxx X. Xxxxxx
Chairman
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
if to the Executive: address below Executive's signature below
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties as of the first date written above.
Name: Xxxxxxx X. Xxxxxxxx
Address:
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XXXXXX COMMUNICATIONS CORPORATION
By:
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Name:
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Title:
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