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EXHIBIT 10.214
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "AGREEMENT") is dated as of June 1,
1999, 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").
RECITALS
X. Xxxxxx, a wholly owned subsidiary of Xxxxxx Communications
Corporation ("PCC"), has been formed to provide managerial and administrative
services to the various businesses operated by PCC and its subsidiaries and
affiliates (collectively, the "XXXXXX GROUP"), including the PAX Net network,
any other programming networks and various television stations owned or
otherwise held, operated or programmed by the Xxxxxx Group.
X. Xxxxxx desires to employ Employee to perform executive and
administrative duties for the Xxxxxx Group while holding the "TITLED POSITION"
set forth in Schedule I annexed hereto.
C. Employee wishes to enter into this Agreement and to be employed by
Xxxxxx as the Titled Position for the Xxxxxx Group and to provide services to
Xxxxxx on the terms and conditions set forth in this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement, the parties intending to be bound
legally, hereby agree as follows:
SECTION 1 EMPLOYMENT
1.1 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, unless terminated sooner in accordance
with this Agreement.
1.2 Duties. Employee acknowledges, agrees and accepts employment by
Xxxxxx in the Titled Position for 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
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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 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.
1.3 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
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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.
1.4 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.
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:
2.1 Base Salary. As compensation for the services performed by
Employee hereunder, Employee shall receive a Base Salary, 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.
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) in an amount not less than ten percent
(10%) in excess of the existing base salary, subject to any freeze or
moratorium generally in effect to all senior or comparable (in terms
of duties and compensation) management of PCC.
(c) Bonus. Employee shall be entitled to an annual bonus,
based upon Xxxxxx Group performance, in the amount payable and as
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.
2.2 Other Cash and Non-Cash Compensation.
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(a) 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.
2.3 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.
2.4 Vacation. Employee shall be entitled to a minimum of three weeks
of paid vacation during each Employment Year, together with personal time off
in accordance with Xxxxxx'x employee handbook as in effect from time to time.
2.5 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.
2.6 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 INVOLUNTARY TERMINATION
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3.1 Events. Employee's employment shall terminate on the earliest of
the following dates:
(a) Death. The date of Employee's death. In that event,
Xxxxxx shall pay to Employee's legal representatives or named
beneficiaries (as Employee may designate in writing from time to time)
any life insurance and death benefits of the type described in Section
2.5 to which Employee is entitled, plus the amounts set forth in
Section 3.2 hereof in respect of an Involuntary Termination.
(b) Disability. If Xxxxxx gives Employee written notice of
the termination of employment by reason of Employee's Disability, 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 Employee. For
purposes of this Agreement, "DISABILITY" means complete and permanent
inability of Employee by reason of illness or accident to perform the
Employment Duties. In that event, Xxxxxx shall pay to Employee, or
Employee's legal representatives (as Employee may designate in writing
from time to time) any disability insurance and benefits of the type
described in Section 2.5 to which Employee is entitled, plus the
amounts set forth in Section 3.2 hereof in respect of an Involuntary
Termination.
(c) Involuntary Xxxxxx Termination. If Xxxxxx gives Employee
written notice that Xxxxxx has determined to terminate Employee's
employment for any reason other than for Cause or Disability and
including, in any event (i) the Company's election to change the place
of employment to a location not in Palm Beach County, Florida; (ii)
the Company's failure to remedy a breach of this Agreement upon
written notice from Employee; or (iii) if, within one year after a
Change of Control (as defined below), Xxxxxx terminates Employee's
employment with Xxxxxx without Cause (an "INVOLUNTARY XXXXXX
TERMINATION"), a date specified in such notice which shall be not less
than thirty (30) days after the date on which such notice is received
by Employee. In that event, Xxxxxx shall pay to Employee the amounts
set forth in Section 3.2 hereof in respect of an Involuntary
Termination.
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 35
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 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
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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; or
(c) a liquidation or dissolution of PCC or of the sale of all or at
least 80 percent of PCC's assets.
(d) Employee's Voluntary Retirement. If Employee gives Xxxxxx
written notice of a Voluntary Retirement, the date specified in such
notice which shall be not less than ninety (30) days after the date on
which the notice is received by Xxxxxx. In that event, Xxxxxx shall
pay to Employee the amounts, if any, set forth in Section 3.2 hereof
in respect to a Voluntary Termination. For purposes of this Agreement,
"VOLUNTARY RETIREMENT" shall mean separation from service under
conditions which would constitute normal retirement.
(e) Cause. If Xxxxxx gives Employee written notice of
termination of employment for Cause, the date specified in such notice
which shall be not less than thirty (30) days after the date on which
the notice is received by Employee; provided that the event specified
in such notice giving rise to termination for Cause shall not have
been remedied or cured by Employee. In that event, Xxxxxx shall pay to
Employee the amounts, if any, set forth in Section 3.2 hereof in
respect of a Voluntary Termination. An Employee shall be subject to
termination for "CAUSE" when the termination results from:
(i) Employee's arrest for the commission of (A) a felony, (B)
two (2) offenses for operating a motor vehicle while impaired
by or under the influence of alcohol or illegal drugs, (C)
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)
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 Xxxxxx or would
subject any such broadcast station to fine or forfeiture;
(ii) Employee's wilfully taking of any action or inaction 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;
(iii) Employee's dependence on alcohol or illegal drugs;
(iv) Refusal to perform according to or follow the legal
policies and directives of the Responsible Officer and
failing to cure such failure within 90 days
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from receipt of written notice setting forth the specifics of
such unsatisfactory performance;
(v) Conduct which could be reasonably inferred to detract
from the public image of the Xxxxxx Group;
(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; or
(viii) Any representation of Employee in Section 7 of this
Agreement being false when made.
(f) Employee's Voluntary Resignation. If Employee gives Xxxxxx
notice of a voluntary resignation (a "VOLUNTARY RESIGNATION"), a date
specified in such notice which shall be not less than ninety (30) days
after the date on which the notice is received by Xxxxxx. In that
event, Xxxxxx shall pay to Employee the amounts, if any, set forth in
Section 3.2 hereof in respect of a Voluntary Termination.
3.2 Payments Upon Termination. For purposes of this Agreement an
"INVOLUNTARY TERMINATION" shall be deemed to have occurred hereunder upon
Employee's termination as a result of death, Disability, or Involuntary Xxxxxx
Termination, under and pursuant to Subsections 3.1(a), (b), (c), and a
"VOLUNTARY TERMINATION" shall be deemed to have occurred hereunder upon
Employee's termination as a result of a Voluntary Retirement, termination for
Cause, or for Employee's Voluntary Resignation, under and pursuant to
Subsections 3.1(d), (e) and (f); inclusive. Upon an Involuntary Termination or
a Voluntary Termination Employee shall be entitled to the following
compensation:
(a) Involuntary Termination Compensation: If Employee's
employment is terminated for any reason other than as a
result of a Voluntary Termination, Employee (or, in the case
of a termination as a result of the death of Employee,
Employee's estate) will continue to be paid the Employee's
Base Salary then in effect for the lesser of (i) twelve (12)
months and (ii) the remaining portion of the Agreement Term.
In addition, Employee shall be paid within thirty (30) days
of any Involuntary Termination an amount in cash equivalent
to the accrued vacation and personal time of Employee through
the Involuntary Termination Date plus any unpaid portion of
any previously awarded annual bonus. Employee shall also be
entitled to any benefits for which Employee qualifies for
benefits under any employee benefit plan available to the
Employee.
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(b) Voluntary Termination Compensation. If Employee's employment
is terminated for any reason constituting a Voluntary
Termination, Xxxxxx shall have no further liability to
Employee, and no further payments shall be made to Employee,
except to the extent expressly provided for in this Agreement
or to the extent that Employee qualifies for benefits under
any employee benefit plan available to Employee.
3.3 Further Payments. 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 Agreement or to the extent that Employee
qualifies for benefits under any employee benefit plan available to Employee.
SECTION 4 INTANGIBLES
4.1 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.
4.2 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 [Reserved]
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SECTION 6 ARBITRATION
Except as otherwise provided to the contrary below, any dispute arising our 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 Employee's
understanding. The arbitration hearing shall be conducted in accordance with
the commercial 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 our 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 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:
7.1 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 covenant not to compete or any
other agreement, instrument, or license, to which Employee is a party or by
which Employee is bound.
7.2 Conduct. Employee has not:
(a) Been convicted of any felony;
(b) Committed any criminal act with respect to Employee's current or
any
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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.
7.3 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
8.1 Governing Law. This Agreement shall be construed in accordance
with, and shall be governed by, the laws of the State of Florida.
8.2 Entire Agreement. This Agreement supersedes any prior employment
agreement between Xxxxxx and Employee, whether written or oral, and is
effective as of the date first written above. 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 agreement in writing
signed by the party against whom enforcement of any waiver, modification,
change, amendment or termination is sought.
8.3 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.
8.4 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.
8.5 Headings. The section headings of this Agreement are for
convenience only and shall not be used in interpreting or construing this
Agreement.
8.6 Assignment of Agreement and Change of Control. 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.
8.7 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
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forth in the records of the delivery service or on the return receipt, and (iv)
addressed as follows:
If to Xxxxxx: 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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8.8 Waiver. The waiver by Xxxxxx of a breach of any provision by
Employee 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 by Employee or be deemed to be a waiver by said 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the day and year first written above.
WITNESS: XXXXXX COMMUNICATIONS MANAGEMENT COMPANY, INC.
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-------------------------- By:
WITNESS:
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