EXHIBIT 10.227
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement"), by and
between XXXXXX COMMUNICATIONS MANAGEMENT COMPANY, INC., a Florida corporation
("Xxxxxx"), and Xxxx X. Xxxxxxxx, an individual resident of the State of Florida
("Employee"), is effective as of the date set forth on Schedule I annexed
hereto.
In consideration of the mutual covenants and agreements contained herein,
the parties, hereby amend and restate the Employment Agreement to read in its
entirety as set forth herein:
SECTION 1. EMPLOYMENT
1.01 TERM OF EMPLOYMENT. The term of this Agreement (the "Agreement Term")
shall be deemed to have commenced as of the "Commencement Date" set forth in
Schedule I hereof, and shall continue until the third (3rd) anniversary of the
Commencement Date (as such date is extended from time to time in accordance with
the terms hereof, the "Scheduled Termination Date"), unless the Agreement Term
is extended or terminated sooner in accordance with this Agreement. The
Agreement Term and the then effective Scheduled Termination Date shall
automatically be extended by one year on the date (the "Renewal Date") which is
the number of Severance Months specified on Schedule I hereof prior to the then
effective Scheduled Termination Date unless the Company provides irrevocable
written notice (a "Non-Renewal Notice") to the Employee not later than the last
business day before the Renewal Date, that the Company has elected not extend
the Agreement Term beyond the then effective Scheduled Termination Date.
1.02 DUTIES. Employee acknowledges, agrees and accepts employment by Xxxxxx
in the Titled Position (as defined in Schedule I annexed hereto) for the various
businesses operated by Xxxxxx Communications Corporation ("PCC") and its
subsidiaries and affiliates (collectively, the "Xxxxxx Group") and in such
capacity Employee shall be responsible for the performance of the duties of the
Titled Position and for such other executive and administrative duties as may be
designated from time to time by the Responsible Officer or the Chairman of PCC.
Employee shall be provided by Xxxxxx suitable office space for Employee in the
"Employment Location", as identified on Schedule I annexed hereto, together with
all reasonable support staff and secretarial assistance, equipment, stationary,
books and supplies, as determined by the Responsible Officer. Employee shall use
Employee's best efforts during the term of employment hereunder to further,
enhance and develop the business of PCC, the Xxxxxx Group and any networks or
stations it may own or operate. Subject to the direction of the "Responsible
Officer", as identified in Schedule I annexed hereto, Employee shall perform
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such duties as set forth in Schedule I annexed hereto under "Employment Duties."
Except as expressly modified herein, Employee shall be subject to all of the
Xxxxxx Group's policies including payola, plugola and conflicts of interest, as
well as the following:
(a) Employee will comply with all Xxxxxx Group and professional
standards governing Employee's objectivity in the performance of Employee's
duties, including restrictions on outside activities, investments, business
interests, or other involvements which could compromise Employee's
objectivity or create an impression of conflict of interest. Employee will
not knowingly, without the prior approval of Employee's Responsible Officer
on behalf of Xxxxxx, accept any gift, compensation, or gratuity (which
excludes business meals and entertainment received by Employee in the
ordinary course of business) from any person or entity with which the
Xxxxxx Group 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. Employee will not, without
the prior written approval of Employee's Responsible Officer, take
advantage of any business opportunity or situation or engage in any
enterprise or venture of which the Xxxxxx Group 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
Xxxxxx Group.
(b) In performing the Employment Duties under this Agreement, Employee
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 Employee, or
Xxxxxx'x public image.
1.03 ACTIVITIES. Employee shall, except during vacation periods, periods of
illness, and leaves of absence approved by Xxxxxx, devote full and undivided
business time, attention and energies to the duties and responsibilities
required by Xxxxxx, as directed by the Responsible Officer. During the Agreement
Term, Employee shall not engage in any other business activity which would
conflict with Employee's duties without the prior written approval of Employee's
Responsible Officer on behalf of Xxxxxx, which shall not be unreasonably
withheld; provided, however, that Xxxxxx may withhold its consent to any
business activity by Employee that Xxxxxx determines would directly interfere,
impair or hinder in any way Employee's ability to perform or otherwise satisfy
Employee's responsibilities and duties from time to time in effect, as the
holder of the Titled Position of the Xxxxxx Group or otherwise, under this
Agreement.
1.04 DELEGATION OF DUTIES. Employee may not delegate the performance of any
of Employee's obligations or duties under this Agreement, or assign any of
Employee's rights under this Agreement, without the prior written consent of
Xxxxxx, except that Employee may delegate duties to other employees of Xxxxxx
where reasonable and customary in the ordinary course of Xxxxxx'x business and
consistent with the performance of the Titled Position.
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SECTION 2. COMPENSATION AND BENEFITS. Beginning on the Commencement Date,
Employee shall be compensated for the performance of the Employment Duties
performed under the terms hereof as follows:
2.01 BASE SALARY AND ANNUAL CASH BONUS. As compensation for the services
performed by Employee hereunder, Employee shall receive a Base Salary and Annual
Cash Bonus, as follows:
(a) Initial Base Salary. Xxxxxx and Employee acknowledge and agree
that Employee's current Base Salary in effect for the current Employment
Year shall be the per year amount set forth in Schedule I hereof. For
purposes of this Agreement, "Employment Year" means a calendar year ended
December 31.
(b) Increase in Base Salary. For each Employment Year after the
current Employment Year (each such year a "Successive Employment Year"),
Employee's Base Salary shall be subject to such increase, if any, for each
such Successive Employment Year as shall be as determined by the
Responsible Officer (subject to the approval of the Chairman of the Board
of PCC, and, if applicable, the Compensation Committee of the Board of
Directors of PCC).
(c) Bonus. Employee shall be entitled to earn an annual bonus, based
upon Xxxxxx Group performance and the Employee's individual performance, in
the amount and on the terms described in Schedule I annexed hereto.
(d) Manner of Payment. Employee's Base Salary shall be paid, at
Xxxxxx'x option, either (i) in equal bi-monthly installments, or (ii) in
accordance with the customary payroll policies of Xxxxxx with respect to
its management employees.
2.02 OTHER CASH AND NON-CASH COMPENSATION. In addition to Employee's Base
Salary, Employee may, as determined from time to time, in the sole discretion of
Xxxxxx, be eligible to receive or participate in cash and non-cash compensation
programs, including, without limitation, annual and special cash and non-cash
bonus awards, grants of stock options, restricted stock, "phantom-equity" and
stock appreciation rights (collectively, "Non-Cash Compensation"). 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. Under no circumstance should this provision be deemed to
constitute any express or implied right, entitlement or interest of Employee to
be awarded or participate in, or obligation, agreement or requirement of Xxxxxx,
to award, provide or offer to Employee, any form of Non-Cash Compensation, all
of which rights, entitlements, interests, obligations, agreements or
understandings are hereby expressly disclaimed.
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2.03 BUSINESS EXPENSES. Upon proper substantiation and documentation by
Employee, Xxxxxx shall reimburse Employee promptly for all reasonable travel,
entertainment and other similar business expenses incurred by Employee in the
performance of Employee's duties under this Agreement. Reimbursement of expenses
will be made in accordance with applicable policies of Xxxxxx. All extraordinary
disbursements and expenditures by Employee, and any disbursements and
expenditures that are not provided for in any budget established by Xxxxxx, must
be approved in advance by Xxxxxx.
2.04 PERSONAL TIME. Employee shall be entitled to the number of weeks of
personal time off in accordance with Xxxxxx'x employee handbook as in effect
from time to time.
2.05 BENEFITS. The compensation specified above shall be exclusive of and
in addition to any benefits that may be available to Employee under any employee
pension plan, group life insurance plan, hospitalization plan, medical service
plan, death benefit plan, or any other employee benefit plan applicable
generally to the employees of Xxxxxx, in accordance with their respective
positions, and which may be in effect at any time or from time to time during
the term of Employee's employment.
2.06 WITHHOLDING. Xxxxxx shall be responsible for withholding from
Employee's compensation FICA, FUTA and other payroll and income taxes, as
required by law and such other amounts as may be directed by Employee.
SECTION 3. TERMINATION OF EMPLOYMENT; PAYMENTS UPON TERMINATION
3.01 EVENTS. Employee's employment shall terminate on the earliest of the
following dates:
(a) Death. The date of Employee's death.
(b) Disability. The date Employee is terminated due to Disability.
"Disability" means that, in the opinion of the Company's physicians,
Employee is unable by reason of illness or accident to perform the
essential functions of the Employment Duties for a period of more than 180
consecutive days.
(c) Xxxxxx Termination Without Cause. The date on which Employee's
services hereunder to Xxxxxx terminate as a result of a Xxxxxx Termination
Without Cause. A "Xxxxxx Termination Without Cause" means (1) any
termination of Employee by Xxxxxx for any reason, including the expiration
of the Agreement Term after Xxxxxx provides Employee a Non-renewal Notice,
other than a termination by Xxxxxx for Disability pursuant to Subsection
3.01(b) or a Xxxxxx Termination for Cause pursuant to any clause of
Subsection 3.01(d) prior to a Change of Control, or clauses (i), (iii),
(iv), or (vi) of Subsection 3.01(d) within one year after a Change of
Control, and (2) a termination by Employee, on not less than
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30 days notice to Xxxxxx, after Employee receives a Non-Renewal Notice from
Xxxxxx under Section 1.01 hereof.
(i) For purposes of this Agreement, 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
thirty-five percent of the issued and outstanding capital stock of
PCC, or (ii) have voting control directly or indirectly, equal to at
least 51 percent of the issued and outstanding capital stock of PCC
entitled to vote in the election of the Board of Directors of PCC; (b)
the approval by the shareholders of PCC of a reorganization, merger,
or consolidation, in each case, with respect to which persons who were
shareholders of PCC 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; (c)
a liquidation or dissolution of PCC or of the sale of all or at least
80 percent of PCC's assets; or (d) Xxxxxx X. Xxxxxx shall, by written
agreement with a third party, which shall include, without limitation
The National Broadcasting Company, Inc., cease to exercise
substantially all of his day-to-day control of PCC to the extent
permitted by the FCC rules and regulations, without such agreement
constituting a "transfer of control" under FCC rules and regulations,
it being understood that, without limitation, an agreement or
arrangement between Xxxxxx X. Xxxxxx and such third party whereby
Xxxxxx X. Xxxxxx and his affiliates receive more than ninety percent
(90%) of an agreed upon purchase price for the Class B Common shares
owned by Xxxxxx X. Xxxxxx and certain affiliates of Xxxxxx X. Xxxxxx,
shall be deemed to constitute an agreement amounting to a Change of
Control under this clause (d) of this Subsection 3.01(c).
(d) Xxxxxx Termination for Cause. The date Employee is terminated by
Xxxxxx pursuant to a Xxxxxx Termination for Cause. A "Xxxxxx Termination
for Cause" means a termination of Employee by Xxxxxx resulting from any of
the following:
(i) Employee (A) is charged with the commission of a felony, (B)
is convicted of two (2) offenses for operating a motor vehicle while
impaired by or under the influence of alcohol or illegal drugs, (C) is
charged with any criminal act with respect to Employee'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 (D) is charged with any act
that materially threatens to result in suspension, revocation, or
adverse modification of any FCC license of any broadcast
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station owned by any affiliate of Xxxxxx or would subject any such
broadcast station to fine or forfeiture;
(ii) Employee's willful act or failure to act, the intended or
reasonably foreseeable result of which would cause Xxxxxx or any
Station to be in default under any material contract, lease or other
agreement, which conduct is contrary to his performance of his
Employment Duties or not authorized or confirmed by the Responsible
Officer;
(iii) Employee's dependence on alcohol or illegal drugs;
(iv) Improper refusal by Employee to conduct Employee's business
affairs or follow the legal policies and directives of the Responsible
Officer and failing to cure such failure as soon as practicable and in
any event within 30 days from receipt of written notice setting forth
the specifics of such unsatisfactory conduct;
(v) Conduct which could be reasonably inferred to detract from
the public image of the Xxxxxx Group and failing to cease such conduct
or commence to take reasonable curative action with respect thereto
requested by the Company or both, as soon as practicable and in any
event within 30 days from receipt of written notice setting forth the
specifics of such conduct;
(vi) Employee's misappropriation, conversion or embezzlement of
the assets of Xxxxxx or any affiliate of Xxxxxx;
(vii) A material breach of this Agreement by Employee and failing
to cure such breach as soon as practicable and in any event within 30
days from receipt of written notice setting forth the specifics of
such breach; or
(viii) Any representation of Employee in Section 7 of this
Agreement being false when made.
(e) Employee's Voluntary Resignation. The date of Employee's Voluntary
Resignation. A "Voluntary Resignation" means any resignation by Employee
other than Employee's Termination for Good Reason, as set forth in
Subsection 3(f) of this Agreement, or Employee's resignation following
Employee's receipt of a Non-Renewal Notice from Xxxxxx.
(f) Employee's Termination For Good Reason. The date of Employee's
Termination for Good Reason. "Employee's Termination for Good Reason" means
the termination of employment by Employee as a result of the occurrence of
any of the following events:
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(i) Xxxxxx elects to change the place of employment to a location
not in the Employment Location specified on Schedule I hereto; or
(ii) Xxxxxx fails to remedy a material breach of this Agreement
after thirty (30) days' written notice from Employee, setting forth
the specifics of such breach.
3.02 PAYMENTS UPON TERMINATION. Following the termination of Employee's
employment pursuant to this Section 3, Xxxxxx shall have no further liability to
Employee, and no further payment shall be made to Employee, except to the extent
expressly provided for in this Subsection, as follows:
(a) Termination Compensation For Death, Disability, Xxxxxx Termination
Without Cause or Employee's Termination for Good Reason. If Employee's
employment is terminated as a result of Death, Disability, a Xxxxxx
Termination Without Cause, or an Employee Termination for Good Reason,
under Subsections 3.1(a), (b), (c) or (f), respectively, within thirty (30)
days of termination, Employee (or, in the case of a termination as a result
of the death of Employee, the appropriate representative of Employee's
estate) will be paid the following:
(i) Employee will continue to receive the Employee's Base Salary
then in effect for a period equal to the lesser of (x) the number of
Severance Months specified in Schedule I hereto or (y) the remaining
months under the term of this Agreement;
(ii) A lump sum equal to any unpaid portion of any previously
awarded bonus;
(iii) Employee's bonus for the fiscal year in which the
termination occurs, pro-rated, if necessary, according to the formula
set forth in Schedule I, which bonus shall be payable in full if and
when bonus awards for such fiscal year commence to be made to other
members of senior manager; and
(iv) An amount in cash equivalent to the accrued but unused
personal time of Employee through the termination date; and
(v) Without duplication of any of the foregoing, all Base Salary,
expenses and other payments or cash benefits due to Employee through
Employee's termination date.
In addition, Employee shall also be entitled to any benefits for which
Employee qualifies under any employee benefit plan available to Employee
(including, but not limited to any disability insurance, life insurance and
death benefits of the type described in Section 2.05). Employee shall also
be entitled to all rights to
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continuation or conversion of benefits required by law to be offered to a
departing employee.
(b) Termination Compensation for Xxxxxx Termination for Cause or
Employee's Voluntary Resignation. If Employee's employment is terminated as
a result of a Xxxxxx Termination for Cause or Employee's Voluntary
Resignation, under Subsections 3.01(d) or (e), respectively, within thirty
(30) days of termination, Employee will be paid the following:
(i) lump sum equal to unpaid portion of any previously awarded
bonus; and
(ii) An amount in cash equivalent to the accrued but unused
personal time of Employee through the termination date; and
(iii) Without duplication of any of the foregoing, all Base
Salary, expenses and other payments or cash benefits due to Employee
through Employee's termination date.
In addition, Employee shall also be entitled to any benefits for which
Employee qualifies under any employee benefit plan available to Employee.
Employee shall also be entitled to all rights to continuation or conversion
of benefits required by law to be offered to a departing employee.
3.03 NOTICES OF TERMINATION; EFFECTIVE DATE OF TERMINATION. For all
terminations except in the case of Death, either Employee or Xxxxxx, as the case
may be, shall give written notice of termination to the other. In the case of
any termination, other than a Xxxxxx Termination for Cause, such notice shall be
effective not less than thirty (30) days after the date on which it is received
by the other party. Notice of a Xxxxxx Termination for Cause may be effective
immediately.
SECTION 4. INTANGIBLES
4.01 MEMORANDA, NOTES AND RECORDS. All memoranda, notes, names and address
lists, records or other documents made or compiled by Employee or made available
to Employee during the term of employment concerning the business of any member
of the Xxxxxx Group and any and all copies thereof shall be delivered to Xxxxxx
upon the termination of Employee's employment for whatever reason or at any
other time upon request. Employee shall not at any time during Employee's
employment, or after the termination of employment, use for Employee's own
benefit or for the benefit of others, or divulge to others, any information,
trade secrets, knowledge, or data of a secret or confidential nature or
otherwise not readily available to members of the general public that concerns
the business or affairs of any member of the Xxxxxx Group and whether or not
acquired by the Employee during the term of employment by Xxxxxx.
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4.02 RIGHTS IN INTANGIBLE ASSETS. Employee recognizes and acknowledges that
all rights in the formats, programming, concepts, approaches, copy and titles
embodied in the operation of the Xxxxxx Group or any particular station or the
PAX Net network or any other broadcast network, and all changes, additions and
amendments thereto which may occur during or after the Term hereof, belong
exclusively to Xxxxxx. Employee hereby assigns any and all rights or interests
Employee may have therein to Xxxxxx. Employee shall not at any time during
Employee's employment, or after the termination of employment, have or claim any
right, title or interest in any trade name, patent, trademark, copyright or
other similar rights belonging to or used by Xxxxxx and shall not have or claim
any right, title or interest in any material or matter of any sort prepared for
or used in connection with the business or promotion of Xxxxxx, whether
produced, prepared or published in whole or in part by Employee or by Xxxxxx.
SECTION 5. NONINTERFERENCE AND CONFIDENTIALITY
5.01 NONINTERFERENCE. Employee agrees that from the date of this Agreement
through the first anniversary of the date Employee's employment with the Xxxxxx
Group terminates, Employee 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:
(a) Influencing or attempting to influence any person or entity who is
a contracting party with any member of the Xxxxxx Group to terminate any
written or oral agreement with such member of the Xxxxxx Group; it being
understood that notwithstanding the foregoing, consulting or working for a
competitor in the ordinary course after the term shall not, absent other
evidence or action on the part of Employee to the contrary, constitute a
violation of this provision; or
(b) Hiring or attempting to hire for employment or as an independent
contractor any person who is actively employed (or in the preceding six
months was actively 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.
5.02 CONFIDENTIALITY. Employee covenants and agrees that both during the
Agreement Term and thereafter he will not disclose to any third party or use in
any way any confidential information, business secrets, or business opportunity
of the Xxxxxx Group, including, without limitation, advertiser lists, rate
cards, programming information, programming plans, marketing, advertising and
promotional ideas and strategies, marketing surveys and analyses, ratings
reports, budgets, research, or financial, purchasing, planning, employment or
personnel data and information. Immediately upon termination of Employee's
employment with the Xxxxxx Group for any reason, or at any other time upon the
Xxxxxx Group's request, Employee will return to the Xxxxxx Group all memoranda,
notes, records or other documents compiled by Employee or made available to
Employee during the Agreement Term concerning the business of the Xxxxxx Group,
all
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other confidential information and all personal property of the Xxxxxx Group,
including, without limitation, all files, audio or video tapes, recordings,
records, documents, drawings, specifications, lists, equipment, supplies,
promotional material, scripts, keys, phone or credit cards and similar items and
all copies thereof or extracts therefrom.
5.03 ENFORCEMENT. Employee agrees that the restrictive covenants contained
in this section 5 are a material part of Employee's obligations under this
Agreement for which the Xxxxxx Group has agreed to compensate Employee as
provided in this Agreement. Employee agrees that the injury the Xxxxxx Group
will suffer in the event of the breach by Employee of any clause of this Section
5 will cause the Xxxxxx Group irreparable injury that cannot be adequately
compensated by monetary damages alone. Therefore, Employee agrees that the
Xxxxxx Group, without limiting any other legal or equitable remedies available
to it, shall be entitled to obtain equitable relief by injunction or otherwise
from any court of competent jurisdiction, including, without limitation,
injunctive relief to prevent Employee's failure to comply with the terms and
conditions of this Section 5 and Employee hereby waives hereunder any defense
based upon an adequate remedy at law in any such action for equitable relief.
5.04 REFORMATION. If the covenants in this Section 5 are 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 Section 5 in any other
jurisdiction.
SECTION 6. ARBITRATION Except as otherwise provided to the contrary below, any
dispute arising out of or related to this Agreement that Xxxxxx and Employee are
unable to resolve by themselves shall be settled by arbitration in West Palm
Beach, Florida, by a panel of three (3) arbitrators. Xxxxxx and Employee shall
each designate one disinterested arbitrator, and the two arbitrators so
designated shall select the third arbitrator. The persons selected as
arbitrators need not be professional arbitrators, and persons such as lawyers,
accountants and bankers shall be acceptable. Before undertaking to resolve the
dispute, each arbitrator shall be duly sworn faithfully and fairly to hear and
examine the matters in controversy and to make a just award according to the
best of their understanding. The arbitration hearing shall be conducted in
accordance with the employment arbitration rules of the American Arbitration
Association. The written decision of a majority of the arbitrators shall be
final and binding on Xxxxxx and Employee. The costs and expenses of the
arbitration proceeding shall be assessed between Xxxxxx and Employee in a manner
to be decided by a majority of the arbitrators, and the assessment shall be set
forth in the decision and award of the arbitrators. Judgment on the award, if it
is not satisfied within thirty (30) days, may be entered in any court having
jurisdiction over the matter. No action at law or suit in equity based upon any
claim arising out of or related to this Agreement shall be instituted in any
court by Xxxxxx or Employee against the other except (i) an action to compel
arbitration pursuant to this Section, (ii) an action to enforce the award of the
arbitration panel rendered in accordance
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with this Section, or (iii) any other action which, under applicable law, may
not be made subject to binding arbitration.
SECTION 7. REPRESENTATIONS OF EMPLOYEE. To induce Xxxxxx to enter into this
Agreement and to employ Employee, Employee represents and warrants to Xxxxxx as
of the date hereof and as of each date of payment of any compensation under the
terms hereof as follows:
7.01 ABSENCE OF CONFLICTING AGREEMENTS. The execution, delivery and
performance of this Agreement by Employee does not conflict with result in a
breach of, or constitute a default under any enforceable covenant not to compete
or any other enforceable agreement, instrument, or license, to which Employee is
a party or by which Employee is bound.
7.02 CONDUCT. Employee has not:
(a) Been convicted of any felony;
(b) Committed any criminal act with respect to Employee'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
(c) Knowingly 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.
7.03 CHEMICAL DEPENDENCE. Employee is not dependent on alcohol or illegal
drugs. Employee recognizes that Xxxxxx shall have the right to conduct random
drug testing of its employees and that Employee may be called upon in such a
manner.
SECTION 8. MISCELLANEOUS
8.01 GOVERNING LAW. This Agreement shall be construed in accordance with,
and shall be governed by, the laws of the State of Florida.
8.02 ENTIRE AGREEMENT. This Agreement amends, restates and supersedes any
prior employment agreement or understanding with respect to any terms of
employment between Xxxxxx and Employee, whether written or oral, and is
effective as of the date first written above; no written supplemental executive
retirement plan or related documents, if any, between Xxxxxx and Employee shall
be deemed superceded, amended or modified by the terms hereof. The instrument
contains the entire understanding and agreement between the parties relating to
the subject matter hereof. Neither this Agreement nor any provision hereof may
be waived, modified, amended, changed or terminated, except by an
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agreement in writing signed by the party against whom enforcement of any waiver,
modification, change, amendment or termination is sought.
8.03 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all such counterparts shall together
constitute a single Agreement.
8.04 PROVISIONS SEVERABLE. To the extent that any provision of this
Agreement is invalid, illegal, or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby.
8.05 HEADINGS. The section headings of this Agreement are for convenience
only and shall not be used in interpreting or construing this Agreement.
8.06 ASSIGNMENT OF AGREEMENT AND CHANGE OF CONTROL; SUCCESSORS AND ASSIGNS.
This Agreement may be assigned by Xxxxxx without the prior written consent of
Employee. Employee may not assign this Agreement or any of its right or
interests herein to any other party. The rights and obligations of the parties
shall inure to the benefit of and be binding upon heirs, successors,
administrators assigns, as well as any entity to which Xxxxxx may assign its
assets or transfer its business in a Change of Control (as defined in Section
3.1, above), in a merger or acquisition, by operation of law, or otherwise. The
obligations of Xxxxxx to pay money and/or provide benefits to Employee under
this Agreement, by operation of law or pursuant to the terms of the plans or
documents governing such benefits, shall survive Employee's death (with payments
thereafter to be made at the direction of the executors, personal
representatives or other appropriate representatives of Employee's estate).
8.07 NOTICES. All notices, demands and requests required or permitted to be
given under the provisions of this Agreement shall be (i) in writing, (ii)
delivered by personal delivery, or sent by commercial delivery service,
registered or certified mail, return receipt requested, (iii) deemed to have
been given on the date of personal delivery or the date set forth in the records
of the delivery service or on the return receipt, and (iv) addressed as follows:
If to Xxxxxx: Xxxxxx X. Xxxxxx, CEO (with a copy to Xxxxxxx X.
Xxxxxxxx, Esq.) 000 Xxxxxxxxxx Xxxx Xxxx Xxxx Xxxx Xxxxx,
Xxxxxxx 00000-0000
If to Employee: at the address set forth under employees signature on the
last page hereof.
or to any such other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
8.7.
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8.08 WAIVER. The waiver by Xxxxxx or Employee of a breach of any provision
by the other party, or the failure of either Xxxxxx or Employee to exercise any
of the rights set forth herein, shall not operate or be construed as a waiver of
any subsequent breach or be deemed to be a waiver by any party of any of its
rights hereunder. No waiver by any party at any time, express or implied, of any
breach of any provision of this Agreement shall be deemed a waiver of a breach
of any other provision of this Agreement or a consent to any subsequent breach
of the same or other provisions.
8.09 XXXXXX'X ACKNOWLEDGMENTS REGARDING AUTHORITY. The person signing on
behalf of Xxxxxx warrants and represents that he has read this Agreement, that
he understands it, and that he has full and actual authority to enter into this
Agreement on behalf of Xxxxxx. He further represents and warrants that this
Agreement is valid and binding on Xxxxxx immediately, without the need for any
further approvals, procedures or formalities within the company, and that all
approvals, procedures or formalities necessary to effectuate or ratify this
Agreement by Xxxxxx (including, but not limited to any required approval of the
Compensation Committee of the Board of Directors) have been obtained or will be
obtained by Xxxxxx.
[End of Page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the day and year first written above.
EMPLOYEE XXXXXX COMMUNICATIONS MANAGEMENT
COMPANY, INC.
/s/ Xxxx X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxxx
------------------------------------- -------------------------------------
Xxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
000 X. Xxxxxxxx Xxxxx Title: Chief Executive Officer
Xxxxxxx, XX 00000
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SCHEDULE I TO EMPLOYMENT AGREEMENT
FOR XXXX X. XXXXXXXX
TITLED POSITION: Executive Vice President, Chief Strategic Officer
EMPLOYMENT DUTIES: Oversee all strategic planning and corporate finance
activities of the Company.
COMMENCEMENT DATE: Effective January 1, 0000
XXXXXXXXXX XXXXXXXX: Xxxx Xxxxx Xxxxxx, Xxxxxxx
RESPONSIBLE OFFICER: Xxxxxx X. Xxxxxx, Chief Executive Officer
BASE SALARY: $298,856, effective January 1, 2004
SEVERANCE MONTHS: Twelve (12)
ANNUAL BONUS: "Total Annual Bonus Target" for Employee in any
Employment Year shall be 100% of Employee's Base Salary
then in effect, as follows:
(A) 35% of the Total Annual Bonus Target for
Employee may be earned as an "Individual Performance
Bonus Award"; and
(B) 65% of the Total Annual Bonus Target for
Employee may be earned as a "Xxxxxx Group
Performance Bonus Award".
"INDIVIDUAL PERFORMANCE BONUS AWARD" - Employee shall be
entitled to such award, if, in the opinion of the
Responsible Officer, with the concurrence of the Chairman
and CEO of the Xxxxxx Group and the Compensation
Committee of the Board of Directors, employee has,
satisfactorily performed the tasks associated with the
Titled Position (which may include, among other things,
having remained within budget for such fiscal year).
"XXXXXX GROUP PERFORMANCE BONUS AWARD" - Employee shall
be entitled to such award, if the Xxxxxx Group achieves
the financial performance goals (revenues, cash flow,
earnings, etc.) established by the Compensation Committee
of
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the Board of Directors of the Xxxxxx Group for the award
of bonuses to other senior management of the Xxxxxx
Group.
The Individual Performance Bonus Award and Xxxxxx Group
Performance Bonus Award (collectively, the "Total Annual
Bonus Award") shall be payable during the first six (6)
months of each fiscal year following each fiscal year
during the Agreement Term hereof in which the Total
Annual Bonus Award is earned and shall be prorated during
any partial year of employment covered hereby. For
example, a bonus if any, for six (6) months of employment
in 2004 would be payable during the first six (6) months
of 2005 and determined using 2004 financial goals and
would be equal to one-half (1/2) of the Total Annual
Bonus Award for such year (e.g. 1/2 of the Individual
Performance Bonus and the Xxxxxx Group Performance Bonus,
each as may have been earned). Notwithstanding anything
to the contrary contained herein, the Annual Bonus
described hereunder shall be effective for fiscal year
2004 (payable in the first six months of 2005) and the
Annual Bonus terms effective for Employee for fiscal year
2003 (payable in the first six months of 2004), as set
forth in any superceded employment agreement or other
arrangement, shall remain effective and are hereby
incorporated herein in their entirety.
OPTIONS On or before the date hereof during fiscal year 2003,
employee was granted options to acquire restricted and
unrestricted stock of Xxxxxx Communications Corporation,
with such options and restricted stock being granted
subject to various terms, conditions and limitations,
including without limitation, vesting or lapse of
restrictions on restricted stock and forfeiture, as set
forth under the Xxxxxx Communications Corporation 1998
Stock Incentive Plan (the "Plan") the form of stock
option agreement and such other documents pursuant to
such awards of equity compensation were made.
Employee will be eligible to receive additional option
grants based upon Employee's performance, and on terms
and in such amounts as determined by the Compensation
Committee of the Board of Directors. Nothing herein shall
be deemed to be an obligation to make awards in addition
to the award of options and restricted stock described
above made on or before the date hereof.
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Notwithstanding anything to the contrary contained
herein, an Employee Termination for Good Reason shall
constitute a Termination Without Cause hereunder for
purposes of the acceleration of vesting of options, or
lapse of restrictions on restricted stock, granted to
Employee from time to time by Xxxxxx.
DEFERRED
COMPENSATION: During the Agreement Term, Employee shall enjoy the
benefits of and continued participation in the
Supplemental Executive Retirement Plan, including the
Company's contributions thereto, as in effect on the date
hereof.
MISCELLANEOUS: 1. Without limiting the terms of Section 2.03 of the
Agreement, and notwithstanding the otherwise applicable
travel expense related policies of Xxxxxx, Employee shall
be entitled to travel in business class, or if
unavailable, first class, on any business travel
reimbursable by the Company.
2. The definition of "Employee's Termination for Good
Reason" set forth under Section 3.01(f) is hereby
supplemented by adding the following (iii) thereto:
"(iii) Xxxxxx makes any material, adverse change in
Employee's position, duties, or responsibilities."
3. The term "Severance Months" above is hereby
supplemented to provide that in the event of a
termination of employment, which entitles Employee to a
severance payment and which occurs six months prior to,
or within two years following a Change in Control,
Employee shall be entitled to 24 months of severance
instead of 12 months specified above.
EMPLOYEE XXXXXX COMMUNICATIONS MANAGEMENT
COMPANY, INC.
/s/ Xxxx X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxxx
------------------------------------- -------------------------------------
Xxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
Date: January 20, 2004 Title: Chief Executive Officer
Date: January 20, 2004
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