Exhibit 10.36
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of
____________, 2001, between NEXTMEDIA GROUP, INC., a Delaware corporation
("Employer") and XXXXXXXX XXXXXX ("Executive").
WHEREAS, Employer desires to employ Executive, and Executive desires
to be employed by Employer, in accordance with the terms and conditions herein
provided.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, Employer and Executive agree as
follows:
1. Employment and Employment Period. During the period specified in
this Section 1, Employer shall employ Executive, and Executive shall serve
Employer, on the terms and subject to the conditions set forth herein. The
parties hereto acknowledge and agree that the term of Executive's employment
under this Agreement shall commence as soon as is reasonably practicable, but in
no event later than September 24, 2001 (the "Effective Date") and, subject to
prior termination as provided in Section 6 below, shall continue through the
March 6, 2005 (the "Expiration Date"). The term of Executive's employment under
this Agreement is sometimes referred to below as the "Employment Period."
2. Duties, Responsibilities, Reporting, No Services for Others.
(a) At all times during the Employment Period, Executive (i)
shall serve as Chief Accounting Officer and Treasurer or in such other
comparable management position or positions as designated by the Board
of Directors of Employer (the Board of Directors or any successor
equivalent governing body of Employer, the "Board of Directors") from
time to time, (ii) shall perform duties in furtherance of the business
of Employer, as may be assigned to Executive from time to time by the
Chief Financial Officer of Employer, and (iii) except as set forth in
Section 2(b) hereof, shall devote Executive's entire business time,
energy, talent, and best efforts to the faithful and efficient
performance of his duties as Chief Accounting Officer and Treasurer.
(b) Executive shall not, at any time during the Employment
Period, directly or indirectly, render any business, commercial, or
professional services to any other person, firm, or organization
(other than the Company and its Affiliates) for compensation without
the prior written approval of the Board of Directors. Nothing in this
Agreement shall preclude Executive from devoting reasonable periods of
time and effort to charitable and community activities or to the
management of Executive's personal investment assets; provided, that
such activities do not interfere in any material respect with the
performance by Executive of Executive's duties hereunder.
3. Compensation.
(a) Base Salary. During the Employment Period, Employer shall pay
to Executive an annual base salary (the "Base Salary") in regular
equal installments in accordance with Employer's usual payroll
practice. Executive's Base Salary for the
period commencing with the Effective Date and ending December 31, 2001
shall be One Hundred Five Thousand Dollars ($105,000). Executive's
Base Salary shall increase effective January 1, 2002 to One Hundred
Ten Thousand Dollars ($110,000) for the period between January 1, 2002
and December 31, 2002. Executive's Base Salary shall be subject to
appropriate increase each year thereafter at the discretion of the
compensation committee of the Board of Directors (the "Compensation
Committee").
(b) Bonus. Executive shall be entitled to an annual bonus (the
"Bonus") for each fiscal year in which Executive is employed hereunder
in an amount equal to such percentage of Executive's Base Salary for
such fiscal year as may be determined by the Compensation Committee in
its reasonable discretion, prorated to the extent that Executive has
not been employed for a full fiscal year, and based upon the
recommendation of the Chief Financial Officer. Any bonus determined to
be payable under this section shall be paid by Employer to Executive
as soon as practicable following the completion of the annual audit of
Employer.
(c) Withholdings. Employer shall, in accordance with applicable
law, deduct from the Base Salary, the Bonus and all other cash amounts
payable by Employer under the provisions of this Agreement to
Executive, or, if applicable, to his estate, legal representatives or
other beneficiary designated in writing by Executive, all social
security taxes, all federal, state and municipal taxes and all other
charges and deductions that now or hereafter are required by law to be
charges on the compensation of Executive or charges on cash benefits
payable by Employer hereunder to Executive's estate, legal
representatives or other beneficiary.
4. Retirement and Employee Welfare Benefits. During the Employment
Period, Executive shall be entitled to participate in, and shall receive
benefits in accordance with the terms of, all retirement and welfare benefits
plans, practices, policies, and programs that are made available by Employer to
other senior executives, which, at a minimum, shall include the following:
(a) Life Insurance. Employer shall provide Executive, and shall
keep in full force and effect at all times during the Employment
Period, without cost to Executive, a term life insurance policy with a
death benefit equal to not more than $1,000,000, subject to
Executive's insurability at standard group rates. Executive shall be
solely responsible for the payment of any federal and/or state taxes
that may be levied as a result of Employer furnishing such life
insurance policy to Executive, and Executive, Executive's estate
and/or heirs hereby acknowledge and agree that they shall indemnify
and hold harmless Employer from and against any and all taxes that may
be payable in connection with such life insurance policy. Executive
shall have the privilege of designating the beneficiary thereof and
may change the beneficiary thereof by providing written notice to
Employer and shall have such other rights of ownership provided by
such life insurance policy, subject to the rules and regulations of
the issuing insurance company. Executive shall have the right to
assign such life insurance policy to Executive's spouse or issue, or
to a trust primarily for the benefit of Executive's spouse and/or
issue. Upon the termination of this Agreement for any reason, Employer
shall assign such life insurance policy to Executive, without cost to
Executive, provided that Executive shall pay all
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premiums and other costs relating to such life insurance policy from
and after the date of such assignment.
(b) Medical Benefits. Employer shall provide to Executive and
Executive's immediate family, to the extent eligible and at all times
during the Employment Period, major medical coverage and disability
insurance in an amount not less than sixty percent (60%) of
Executive's Base Salary then in effect. If Employer is notified that
Executive does not qualify for such disability insurance at standard
rates, Employer will so advise Executive within five (5) days after
Employer has received such notification of non-qualification.
(c) Reimbursement for Business Expenses. Executive shall be
permitted first class air travel (when up-grades from coach class air
travel cannot be obtained) and hotel accommodations for all business-
related travel and entertainment. Employer shall reimburse Executive
promptly upon production of reasonably detailed accounts, receipts,
vouchers or other reasonable evidence of payment by Executive, for all
ordinary, reasonable and necessary travel, entertainment and other
expenses as shall be incurred by Executive in the performance of
Executive's duties hereunder.
(d) Automobile. The parties hereto acknowledge and agree that
beginning on January 1, 2002, Employer shall be obligated to provide
Executive with, or to pay or to reimburse Executive for his lease or
purchase of, an automobile, the aggregate expense of which shall not
exceed $10,000 per annum.
(e) Vacations. During each complete twelve (12) month period of
the Employment Period, Executive shall be entitled to paid vacation
time at the rate of not more than four (4) weeks per calendar year,
provided that such vacation shall be taken at such time or times as
Executive may determine in such a manner as to avoid undue disruption
to the business of Employer. Executive shall also be entitled to such
personal leave, holiday leave and sick leave as may be permitted
pursuant to the general practice and policies of Employer.
(f) Club Membership. The parties hereto acknowledge and agree
that beginning on January 1, 2002, Employer shall be obligated to
reimburse Executive for membership dues, up to a maximum of Five
Thousand Dollars ($5,000) per calendar year, for a tennis, fitness,
business lunch club or similar facility to be used by Executive for
business purposes. Employer shall have the right to approve the club
membership, which approval shall not be unreasonably withheld.
(g) Stock or other Equity Plans. Upon the consummation of an
initial public offering of the stock of Employer, Executive shall
participate in such stock award, stock option or other similar equity
plans as shall be determined by Employer's Board of Directors to be
fair, appropriate and customary for an employee in the position of
Executive, in each case, subject to the provisions thereof. Executive
and Employer acknowledge and agree that Executive's service from the
Effective Date through the grant date of any stock award or stock
option pursuant to any stock award, stock option or other similar
equity plan may be considered with respect to the quantity and the
vesting
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schedule of any such award, in the sole and absolute discretion of the
Compensation Committee upon the advice of the chief executive officer
of the Company or the Chief Financial Officer.
(h) Relocation Expenses. The parties hereto acknowledge and
agree that Executive shall be reimbursed for (i) all reasonable and
necessary travel expenses incurred by Executive in the search for
living accommodations and (ii) all reasonable and necessary moving and
temporary living expenses incurred by Executive in connection with
Executive's relocation from Dallas, Texas to the Denver, Colorado
metropolitan area.
(i) Excise Tax. Notwithstanding anything herein to the
contrary, if it is determined that any payment or benefit provided by
Employer to Executive (whether hereunder or otherwise, and including
any payments or benefits provided pursuant to this Agreement) would be
subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended (or any successor provision), or any
interest or penalties with respect to such excise tax or any other
similar excise tax or surcharge imposed by any applicable federal or
state law, rule or regulation (such excise tax or surcharge together
with any interest or penalties thereon, the "Excise Tax"), then
Executive shall be entitled to an additional cash payment (a "Gross-Up
Payment") in an amount that will place Executive in the same after-tax
economic position as Executive would have been in had the Excise Tax
not applied to the payment or benefit. The amount of the Gross-Up
Payment shall be determined by Employer's regular independent
auditors. No Gross-Up Payment shall be payable hereunder if Employer's
auditors determine that such payments or benefits are not subject to
an Excise Tax. Employer shall be responsible for the payment of any
fees and expenses of such auditors for any services provided in
connection with any determination of a Gross-Up Payment.
5. Effect of Disability While in Employ of Employer. If, during the
Employment Period, Executive becomes disabled, by reason of physical or mental
impairment, disability or infirmity to such an extent that Executive is unable
to perform Executive's duties under this Agreement for more than ninety (90)
working days in any twelve (12) consecutive month period, as determined in good
faith by the Board of Directors ("Disability" or "Disabled"):
(a) Employer may relieve Executive of Executive's duties under
this Agreement for as long as Executive is so Disabled.
(b) Employer shall pay to Executive, net of the offset referred
to in the last sentence of this Section 5(b), all Base Salary, if any,
to which Executive would have been entitled under this Agreement had
Executive continued to be actively employed by Employer until the
earliest of: (i) the first date on which Executive is no longer so
Disabled, (ii) the date on which Executive's employment is terminated
by Employer due to Disability pursuant to Section 6(a), (iii) the date
of Executive's death, or (iv) the end of the Employment Period due to
any reason other than termination by Employer due to Disability
pursuant to Section 6(a) or death. Any payment referred to in this
Section 5(b) shall be made at the same time as that payment would have
been made if Executive were not Disabled. Payments under this Section
5(b) for any period shall be offset, dollar for
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dollar, by any disability benefits (other than benefits payable
pursuant to any disability insurance policy all of the premiums for
which were paid by Executive and not Employer) for that period that
are received by Executive.
(c) Except as provided in this Section 5, Employer shall have no
further obligations to Executive for Base Salary or for Bonus for any
period during which Executive is so Disabled.
(d) Executive agrees to submit medical evidence regarding such
Disability as may be reasonably requested by the Board of Directors.
6. Termination.
(a) Death or Disability. Executive's employment hereunder will
terminate immediately upon Executive's death. Employer may terminate
Executive's employment hereunder as of the effective date specified in
Employer's notice of termination if Executive is Disabled, which
effective date shall not be earlier than the ninety-first (91/st/)
working day (excluding vacation days) following the commencement of
Executive's Disability, provided, that such notice shall be delivered
to Executive not later than ten (10) days from the effective date of
termination specified in such notice.
(b) By Employer for Cause. Employer may terminate Executive's
employment under this Agreement for "Cause" (and Executive's
employment will be deemed to have been terminated for "Cause") if, as
of the date of termination, any of the following circumstances have
occurred:
(i) Except as otherwise permitted by Section 2(b) hereof,
Executive has refused to perform Executive's duties as an
employee of Employer or has failed to devote Executive's entire
business, time, energy, talent and best efforts to the
performance of Executive's duties under this Agreement in any
material respect;
(ii) Executive has been convicted of, or has entered a
plea of nolo contendere to, a felony;
(iii) Executive has engaged in any fraudulent or dishonest
conduct or acts in the course of Executive's employment with
Employer in connection with Employer, the Company or any of their
Affiliates;
(iv) Executive breaches any of Executive's obligations
hereunder in any material respect;
(v) Executive has been grossly negligent in the
performance of Executive's duties under this Agreement;
(vi) Executive has engaged in the illegal use of drugs or
suffers from drug dependence or habitual insobriety;
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(vii) Employer materially breaches any financial covenant
contained in any of its contractual obligations and such breach
is not cured or waived prior to the expiration of any applicable
grace or cure periods;
(viii) Employer shall fail to pay the principal of, or
interest on, or shall fail to make any required payment
(regardless of amount) in connection with any of its indebtedness
when and as the same may become due and payable and such failure
is not cured or waived prior to the expiration of any applicable
grace or cure periods;
(ix) Any event or circumstance shall have occurred the
effect of which would permit the holder or holders (or a trustee
on its or their behalf) of any indebtedness of Employer to cause
or to require such indebtedness to become due or to be redeemed
or repurchased prior to its stated maturity (or to cause or to
require an offer to be made to effect such redemption or
repurchase) and such event or circumstance is not cured or waived
prior to the expiration of any applicable grace or cure periods;
or
(x) Employer and its subsidiaries taken together, shall
have failed to meet at least ninety percent (90%) of their budget
in any given fiscal year, as such budget was recommended by the
chief executive officer of Employer and approved by the Board of
Directors.
No termination of Executive pursuant to any of clauses (i), (iv), (v), or (vi)
above will be effective unless and until Executive has first been given written
notice of the conduct or circumstance purported to constitute "Cause" thereunder
and, unless such conduct or circumstance is not reasonably susceptible of cure
or such conduct or circumstance has already been the subject of notice hereunder
and cured by Executive previously, Executive has failed to cure that conduct or
omission within thirty (30) days following receipt of that notice by Executive.
Any termination under any of clauses (ii), (iii), (vii), (viii), (ix) and (x) or
subject to the exceptions provided for in the immediately preceding sentence
shall be effective on such current or prospective date as may be specified by
Employer when giving written notice of the termination.
(c) By Employer Without Cause. Subject to Section 7(c) hereof,
Employer may terminate Executive's employment hereunder without Cause upon
written notice from either the Chief Financial Officer or the chief
executive officer of the Company to Executive.
(d) By Executive for Good Reason. Executive may terminate
Executive's employment hereunder for "Good Reason" at any time if, as of
the date of termination, any of the following circumstances have occurred:
(i) failure by Employer to pay Executive the Base Salary or
the Bonus when due and payable under this Agreement, or there has
been a reduction in the Base Salary by Employer, other than a
reduction pursuant to any retirement or welfare benefit plan;
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(ii) failure by Employer to provide Executive with employee
welfare benefits substantially in accordance with Section 4 hereof;
(iii) Executive's position, duties and scope of responsibilities
as described in Section 2(a) hereof are materially reduced from those
in effect on the Effective Date other than for Cause without the
consent of Executive (it being understood that the reassignment of
Executive's functions, duties or responsibilities other than those
customarily performed by a chief accounting officer and treasurer of a
business of comparable size and complexity to one or more other
persons who report directly or indirectly to Executive shall not be
considered a reduction of Executive's duties or responsibilities);
(iv) there is a change of control of Employer such that (X)
during any period of twelve consecutive calendar months, individuals
who at the beginning of such period constituted the board of directors
of Employer shall not consist of a majority of Continuing Directors
for any reason other than death or disability of a director then in
office; (Y) the employment of Xxxxxx Xxxxxx and/or Xxxx Xxxxxx is
terminated by (1) the Employer other than for "Cause" or (2) by either
such individual for "Good Reason", in each case as such terms are
defined in their respective employment agreements; or (Z) all or
substantially all of the assets of Employer are sold to a third party;
or
(v) the failure of Employer to obtain the assumption in
writing of its obligation to perform this Agreement by any successor
to all or substantially all of the assets of Employer within fifteen
(15) days after such sale or after a merger, consolidation, sale or
similar transaction in which Employer is not the surviving entity, as
applicable.
No termination by Executive pursuant to any of clauses (i), (ii) or (iii) above
will be effective unless and until Employer has first been given written notice
of the conduct or circumstance purported to constitute "Good Reason" thereunder
and, unless such conduct or circumstance is not reasonably susceptible of cure
or such conduct or circumstance has already been the subject of notice hereunder
and cured by Employer previously (in which case, such termination shall be
effective on such current or prospective date as may be specified by Executive
when giving written notice of the termination), Employer has failed to cure that
conduct or omission within thirty (30) days following receipt of that written
notice by Employer, except that if such conduct or circumstance is the failure
to pay any moneys due to Executive under Section 3 hereof, then the cure period
shall be fifteen (15) days following receipt of such written notice. Any
termination under clause (iv) or (v) or subject to the exceptions provided for
in the immediately preceding sentence shall be effective on such current or
prospective sale as may be specified by Executive when giving written notice of
the termination.
(e) By Executive Without Good Reason. Executive may terminate
Executive's employment hereunder without Good Reason (as defined above) at
any time upon notice from Executive to the Chief Financial Officer.
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7. Payments Upon Termination.
(a) Termination by Employer For Cause or by Executive Other Than for
Good Reason. If Executive's employment hereunder is terminated by Employer
for Cause, other than pursuant to Section 6(b)(viii), (ix) or (x) or by
Executive other than for Good Reason prior to the Expiration Date, Employer
shall pay to Executive, as soon as is reasonably practicable after the date
on which Executive's employment with Employer terminates (the "Termination
Date"), any Base Salary and any Bonus earned but unpaid through the
Termination Date, but no further Base Salary, Bonus, or other benefits
shall accrue or shall be payable for any period after the Termination Date.
If Executive's employment hereunder is terminated for Cause under
Section 6(b)(viii), (ix) or (x) prior to the Expiration Date, Employer
shall pay to Executive, as soon as is reasonably practicable after the
Termination Date, in a lump sum, one year of Executive's Base Salary then
in effect, but no further Base Salary, Bonus, or other benefits shall
accrue or shall be payable for any period after the Termination Date.
(b) Termination Upon Death or Disability. If Executive's employment
hereunder is terminated prior to the Expiration Date due to Executive's
death or Disability, Employer shall pay to the beneficiaries designated in
writing by Executive or Executive's estate, as applicable, as soon as is
reasonably practicable after the Termination Date, any Base Salary and any
Bonus earned but unpaid through the Termination Date. No further Base
Salary, Bonus, or other benefits shall accrue or be payable for any period
after the Termination Date.
(c) Termination by Employer Without Cause or by Executive for Good
Reason. If Executive's employment hereunder is terminated by Employer
without Cause or by Executive for Good Reason prior to the Expiration Date:
(i) Employer shall pay to Executive, as soon as is reasonably
practicable after the Termination Date, but in no event more than
fifteen (15) days after such Termination Date, any Base Salary and any
Bonus earned but unpaid through the Termination Date.
(ii) Employer shall pay to Executive, as soon as is reasonably
practicable after the Termination Date, but in no event more than
fifteen (15) days after such Termination Date, in a lump sum, an
amount equal to Two Hundred Twenty percent (220%) of Executive's Base
Salary then in effect, provided that such payment shall be made only
if Executive is in compliance with Executive's obligations under
Section 8 hereof.
(iii) Employer shall pay to Executive, as soon as is reasonably
practicable after the Termination Date, but in no event more than
fifteen (15) days after such Termination Date, in a lump sum, any
accrued but unused or unpaid vacation.
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(iv) Employer shall continue to provide to Executive with the
major medical coverage set forth in Section 4(b) on substantially the
same terms as set forth therein until the earlier of: (A) expiration
of the period for which Executive receives severance pay pursuant to
clause (ii) above and (B) the date Executive has commenced new
employment and has thereby become eligible for comparable benefits.
(v) If requested by Executive, Employer shall provide Executive
with a reasonably appropriate office and secretarial support and
assistance, at no cost to Executive, for a period of up to six (6)
months following the Termination Date.
(d) No Duty to Mitigate. Executive shall not be obligated to seek
other employment or to take any other action to mitigate the amounts
payable to Executive under this Agreement.
(e) Payments and Benefits Constitute Exclusive Remedy. Executive
agrees that if Executive's employment is terminated prior to the Expiration
Date under circumstances entitling Executive to payment of any amounts
and/or provision of any benefits under this Section 7, Executive's sole
right and remedy against Employer in connection with Executive's
employment, this Agreement, and the termination of Executive's employment
shall be to collect those amounts and/or receive those benefits, all as
otherwise limited by the other provisions of this Section 7.
8. Confidentiality, Nonsolicitation, Noncompetition, Inventions.
Executive acknowledges that the business in which Employer engages is
competitive and that Executive's employment with Employer will require that
Executive have access to, and knowledge of, confidential and proprietary
information pertaining to Employer that is of vital importance to the success of
Employer's business; that the direct or indirect disclosure of any such
confidential information to existing or potential competitors of Employer would
place Employer at a competitive disadvantage and would do material damage,
financial and otherwise, to Employer's business; and that by virtue of
Executive's experience and expertise, some of Executive's services to Employer
will be special and unique and that Employer and Executive are entering into
this Agreement with the intention of preserving the goodwill of the business of
Employer. Executive further acknowledges that the duties of Executive to be
performed hereunder shall be performed across the United States, and shall not
be limited to a specific geographic area therein.
(a) Confidentiality. Executive shall not, at any time during the
Employment Period and for a period of five (5) years thereafter, except in
connection with the performance of services hereunder or in furtherance of
the business of Employer, the Company or their Affiliates, communicate,
divulge, or disclose to any person not a director, officer, or employee, or
not engaged to render services to or for, Employer, the Company or any of
their Affiliates, or use for Executive's own benefit or purposes any
Confidential Information (as defined below) of or relating to Employer, the
Company or their Affiliates that Executive has obtained from Employer, the
Company or their Affiliates or any predecessor entity (whether obtained by
Executive before, during, or after the term of Executive's employment under
this Agreement and including any such information developed by Executive
while employed by Employer); except that this
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provision shall not preclude Executive from divulging, communicating or
using any information made known generally to the public by Employer or by
any party unrelated to Executive, or from making any disclosure required by
applicable law, rules, regulations, or court or governmental or regulatory
authority order or decree provided that, if practicable, Executive shall
not make any such disclosure without first giving Employer notice of
intention to make that disclosure and an opportunity to interpose an
objection to the disclosure. All files, records, and documents pertaining
to Employer's business shall belong to and remain the sole and exclusive
property of Employer and if Employer requests the return of such
information at any time during, upon or after termination of Executive's
employment, Executive shall immediately deliver the same to Employer.
"Confidential Information" means information relating to the services or
operations of Employer, the Company or their Affiliates that is not generally
known, is proprietary to Employer, the Company or their Affiliates and is made
known to Executive or learned or acquired by Executive while in the employ of
Employer, including, without limitation, (i) information relating to research,
development, purchasing, accounting, marketing, merchandising, advertising,
selling, leasing, finance and business methods and techniques and (ii) customer
lists and other information relating to past, present or prospective customers.
(b) Nonsolicitation. During the period commencing on the Effective
Date and continuing thereafter through the second anniversary of the
Termination Date, Executive shall not, except in connection with
Executive's duties hereunder or otherwise for the sole account and benefit
of Employer, directly or indirectly, induce or solicit any employee of
Employer, the Company or their Affiliates to leave their employ or approach
any such employee for any of the foregoing purposes or authorize, solicit
or assist in the taking of such actions by any third party.
(c) Noncompetition.
(i) During the Employment Period and for a period of two (2)
years following the earlier of the Expiration Date or the Termination
Date, Executive shall not, directly or indirectly, engage,
participate, make any financial investment in, or become employed by
or render advisory or other services to or for any Person or other
business enterprise (any of the foregoing activities being referred to
herein as "Competitive Activities"). Executive also shall not provide
management services to any Person engaged in Competitive Activities.
The foregoing covenant respecting Competitive Activities shall not be
construed to preclude Executive from making any investments (that are
non-attributable interests under the rules, regulations or policies of
the FCC) in the securities of any company, whether or not engaged in
Competitive Activities with Employer, the Company or its Affiliates,
to the extent such investments are actively traded on a national
securities exchange and such investment does not exceed 1.0% of the
issued and outstanding shares of such company or give Executive the
right or power to control or participate directly in making the policy
decisions of any such company.
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(ii) Notwithstanding the terms and provisions of this Agreement
to the contrary, in the event that Executive's employment hereunder is
terminated by Employer without Cause or by Executive for Good Reason,
Executive may elect to no longer receive payments pursuant to Section
7(c) hereof, in which case the provisions of this Section 8(c) shall
no longer apply as of the date written notice of such an election by
Executive is deemed effective pursuant to the terms of Section 11
hereof.
(d) Inventions. Executive will promptly disclose to Employer and will
furnish to Employer a complete record of every discovery, invention,
improvement, innovation, design, or work (an "Intellectual Development")
that Executive may make or create, whether individually or with others,
while Executive is employed by Employer. Executive acknowledges and agrees
that any and all such Intellectual Developments, whether or not disclosed
to Employer, shall be the property of Employer. Upon request of Employer,
whether made before or after the termination of the employment
relationship, Executive will assign to Employer (or to a party designated
by Employer) all rights throughout the world to any Intellectual
Developments that relate to Employer's current or prospective business or
that result from Executive's work with Employer. Executive will cooperate
fully with Employer in securing rights with respect to all such
Intellectual Developments, including executing any documentation reasonably
proposed by Employer and testifying, under oath if requested, without
expense to Executive, to secure Employer's rights to Intellectual
Developments in any jurisdiction.
(e) Acknowledgment. Executive hereby acknowledges that (i) the
respective time periods and geographical areas provided above are necessary
for the protection of the business and goodwill of Employer, (ii) should
any particular provision of such covenant be deemed invalid or
unenforceable, Employer will be entitled to enforce such provision for such
a period of time and within such area as may be determined to be reasonable
by a court of competent jurisdiction and (iii) this Section 8 shall
continue beyond the termination of his relationship with Employer hereunder
to the extent provided herein. Executive further acknowledges that the
services to be rendered by Executive hereunder are extraordinary and unique
and are vital to the success of Employer's business, and that the breach of
any of the covenants undertaken hereunder would cause substantial damage to
Employer, impossible of exact ascertainment.
(f) Equitable Relief. The parties hereto, recognizing that
irreparable injury will result to Employer, its business and property, in
the event of a breach of the provisions of Section 8 of this Agreement by
Executive, and that but for the agreements contained in this Section 8,
Employer would not enter into this Agreement, hereby agree that in the
event of any actual or threatened breach of the provisions of this Section
8 by Executive, Employer shall be entitled, in addition to any other
remedies and damages available, to temporary relief without notice and to
all injunctive relief without bond to restrain the violation thereof by
Executive, Executive's partners, agents, servants, employers, business
associates, and all persons acting for or with Executive. The prevailing
party in such action shall be entitled to recover from the other party all
costs
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associated therewith, including, without limitation, reasonable and
necessary attorney's fees.
9. Waiver. No provision of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in a
writing signed by Executive and Employer. No waiver by either party hereto at
any time of any breach by the other party of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same
time or at any prior or subsequent time.
10. Entire Agreement. No agreement or representation, oral or otherwise,
express or implied, with respect to the subject matter hereof has been made by
either party which is not set forth expressly in this Agreement.
11. Notices. Notices under this Agreement shall be in writing and will be
effective immediately upon delivery if delivered in person (or by facsimile with
confirmation of receipt) to Executive (in the case of notices to Executive) or
in person (or by facsimile with confirmation of receipt) to the individual
indicated below (in the case of notices to Employer) or three (3) days after
mailing if deposited in the United States mail, postage prepaid, and addressed:
if to Executive, to: Xxxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
and if to Employer, to: NextMedia Group, Inc.
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 000-X
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Either party may change the address to which notice to that party may be mailed
by notifying the other party of the change in the manner contemplated in this
section.
12. Severability. Any provision of this Agreement that is prohibited or
unenforceable shall be ineffective to the extent, but only to the extent, of
such prohibition or unenforceability without invalidating the remaining portions
hereof and such remaining portions of this Agreement shall continue to be in
full force and effect.
13. Assignment. Neither Executive nor Employer may assign, transfer or
otherwise dispose of any of their rights hereunder without the prior written
consent of the other party, in its sole discretion. Any attempted assignment in
violation of the foregoing shall be void.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument and a signature to any
one of such counterparts shall be deemed to be a signature to all such
counterparts.
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15. Governing Law. The provisions of this Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware applicable to
contracts made in that state.
16. Attorney's Fees and Expenses. If either of the parties institutes any
legal action to enforce its rights under, or to recover damages for material
breach of, this Agreement, the prevailing party shall be entitled to recover
from the other party any actual expenses for attorney's fees, costs, expenses
and disbursements incurred by the prevailing party.
17. Executive Representations. Executive hereby represents and warrants
to Employer that (a) Executive's execution and delivery of this Agreement and
his performance of his duties and obligations hereunder will not conflict with,
or cause a default under, or give any party a right to damages under, or to
terminate, any other agreement to which Executive is a party or by which he is
bound and (b) there are no agreements or understandings that would make unlawful
Executive's execution or delivery of this Agreement or his employment hereunder.
18. Disputes. Any dispute or controversy arising under, out of, in
connection with or in relation to this Agreement shall, at the election and upon
written demand of either Executive or Employer, be finally determined and
settled by arbitration in the city of Employer's headquarters in accordance with
the rules and procedures of the American Arbitration Association, and judgment
upon the award may be entered in any court having jurisdiction thereof.
Employer shall pay the costs and expenses of such arbitration and the fees of
Executive's counsel and experts unless the finder of fact determines that
Employer is the prevailing party in such arbitration.
19. Miscellaneous. The provisions of this Agreement shall survive the
termination of Executive's employment with Employer. This Agreement supersedes
any prior written or oral agreements or understanding between the parties
relating to the subject matter hereof. The headings in this Agreement are
inserted for convenience of reference only and shall not be a part of or control
or affect the meaning of any provision hereof.
20. Definitions. In addition to the defined terms set forth throughout
this Agreement, the following capitalized terms shall have the respective
meanings set forth below:
"Affiliate" shall mean with respect to any Person:
(a) Any Person directly or indirectly Controlling, Controlled by or
under common Control with such Person ("Control Persons");
(b) Individuals who are members of the family of any individual who is
a Control Person;
(c) Entities that are Controlled by such family members; and
(d) Entities in which Control Persons have a material investment.
"Chief Financial Officer" shall mean the chief financial officer of
Employer.
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"Company" shall mean NextMedia Investors LLC, a Delaware limited liability
company.
"Company Agreement" shall mean the Second Amended and Restated Limited
Liability Company Agreement of NextMedia Investors LLC, as the same may be
amended, restated or otherwise modified from time to time.
"Continuing Director" shall mean the directors of Employer on the Effective
Date and each other director if, in each case, such other director's nomination
for election to the board of directors of Employer is recommended by a majority
of the then Continuing Directors or such other director receives the vote of the
TWP Members (as defined in the Company Agreement) and the Weston Presidio Member
(as defined in the Company Agreement) in his or her election by the stockholders
of Employer.
"Control" (including the correlative terms "controlled by" and
"controlling" shall mean the possession, directly or indirectly, of the power to
direct, or to cause the direction of, the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise.
"FCC" shall mean the Federal Communications Commission, or any successor
agency.
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership, limited liability company or
government, or any agency or political subdivision thereof.
[The Remainder of this Page Is Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
"EMPLOYER" "EXECUTIVE"
NEXTMEDIA GROUP, INC.
By:______________________ ________________________________
Name:____________________ Xxxxxxxx Xxxxxx
Title:___________________
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