EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of August 15, 1996 and shall
be effective as of the Closing Date (as defined in the Asset Purchase Agreement
described below) by and between BrightView Communications Group, Inc., a
Delaware corporation ("Employer"), and Xxxxxx X. Xxxxxxxx ("Employee").
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WITNESSETH:
WHEREAS, Employee is the founder and Chairman of the Board of Xxxxxxxx
Publishing Company, a California corporation (the "Company"), which has been
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engaged in the publishing business since 1948;
WHEREAS, pursuant to an Asset Purchase Agreement, dated as of August 15,
1996, between Employer and the Company (the "Asset Purchase Agreement"),
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Employer has acquired and assumed substantially all of the Company's assets and
liabilities relating to the publishing business;
WHEREAS, the Board of Directors of Employer (the "Board") has determined
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that because of Employee's substantial experience and business relationships in
connection with the publishing business and Employee's familiarity with the
clientele served by Employer, it is in Employer's best interest and that of its
stockholders to secure services of Employee, to secure certain additional
commitments from Employee and to provide Employee with certain additional
benefits; and
WHEREAS, Employer and Employee desire to set forth in this Agreement the
terms and conditions of Employee's employment with Employer.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties agree, effective as of the Closing Date under the
Asset Purchase Agreement, as follows:
1. Term. Employer agrees to employ Employee and Employee agrees to serve
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Employer, in accordance with the terms of this Agreement, for a term of five (5)
years, commencing on the Closing Date (as defined in the Asset Purchase
Agreement), unless this Agreement is earlier terminated in accordance with the
provisions which follow.
2. Specific Position; Duties and Responsibilities. Employer and Employee
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agree that, subject to the provisions of this Agreement, Employer will employ
Employee and Employee will serve Employer as Chairman Emeritus for the duration
of this Agreement. Employee shall have such corporate power and authority as
shall reasonably be required to enable the discharge of the duties of his
office.
For the term of this Agreement, Employee shall report only to the Chairman
of the Board of Employer.
Employee's duties shall not, unless otherwise consented to by Employee,
exceed the following:
i. as requested by the Chairman of the Board of Employer, advising such
Chairman concerning the conduct of the publishing business previously conducted
by the Company (the "Business");
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ii. as requested by the Chairman of the Board of Employer, acting as a
public spokesperson and representative of Employer at public functions relating
to the Business;
iii. introducing other key executives of Employer to clientele of the
Business known to Employee; and
iv. as requested by the Chairman of the Board of Employer, participating
in significant meetings of the key executives of Employer concerning the
strategy to be adopted by the Business, marketing and sales objectives and
plans, important personnel decisions and similar activities that are material to
the conduct of the Businesses by Employer's top management.
Employer acknowledges that Employee is not required to devote his full-time
business efforts to Employer.
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As a result, and notwithstanding anything to the contrary in this
Agreement, Employee shall not be required to devote more than 40 hours of
service to Employer in any month; provided that for each year during the term of
this Agreement, Employee, upon delivering notice to Employer, shall be entitled
to designate two periods of up to three weeks each during which Employee shall
not be required to provide any services under this Agreement.
Employee shall be required to conduct his duties only at reasonable
business hours and shall be required to attend meetings, events or other
gatherings only after receiving reasonable advance notice thereof (which shall
be received not less than seven business days prior to the date of such meeting,
event or gathering). Employer acknowledges that Employee maintains an active
business and social calendar, and that it shall not be able to require Employee
to reschedule prior commitments in order to conduct duties required hereunder.
3. Total Compensation and Business Expenses.
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a. Total Compensation.
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During the term of this Agreement, Employer agrees to pay Employee total
compensation at the rate of $200,000 per year (the "Total Compensation").
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Employee may, at his sole discretion, allocate the Total Compensation towards
(i) his own salary, (ii) the salary and benefits of any assistant(s) hired by
Employer for exclusive use by Employee, or (iii) expenses incurred in connection
with his duties not specifically related to an event or meeting which Employer
requested Employee to attend or host. In the event that Employer requests
Employee to attend or host any meeting, event, or other occasion, Employer shall
reimburse Employee for reasonable expenses incurred by Employee in connection
therewith upon the same terms as it reimburses expenses of its most senior
executives, including travel at first class air fare rates. If Employee uses
services or facilities not available for reimbursement to such executives under
Employer's policies, he shall nevertheless be reimbursed at the rate for the
most comparable service or facility that is reimbursable under Employer's
policies. The Employer must request (and Employee shall then have the option to
attend or host) that Employee attend or host the meetings, events and
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occasions set forth on Schedule 3(a) attached hereto. In the event of the death
of the Employee prior to the expiration of the term of this Agreement, Employer
shall continue to pay each assistant, described in clause (ii) above, a salary,
at a level equivalent to the salary each assistant was receiving immediately
prior to Employee's death, for a period of six (6) months following Employee's
death.
b. Additional Benefits.
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Employee shall also be entitled to the following additional benefits
(collectively, the "Additional Benefits"):
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i. During the life of Employee and the life of his spouse, Employer shall
maintain for the benefit of Employee and his spouse, life, medical, dental,
disability and insurance plans and policies having coverage that is equal to or
better than the coverage provided by the plans and policies that the Company
provided to Employee and his spouse immediately prior to the Closing Date
contemplated by the Asset Purchase Agreement; provided, however, that if such
coverage becomes unobtainable at a cost comparable to that incurred by the
Company to maintain such coverage prior to the Closing Date (as defined in the
Asset Purchase Agreement), Employer shall provide coverage as nearly comparable
as practicable for the same cost as most recently incurred for the coverage not
obtainable.
ii. During the term of this Agreement, Employee, at Employer's expense,
shall be permitted to use, on a personal basis, all stadium and arena luxury
boxes and suites maintained by the Company as of the date hereof which Employer
elects, at Employer's sole discretion, to maintain during the term of this
Agreement. Prior to the beginning of each season (or the calendar year, if the
boxes or suites are not received on a seasonal basis), Employer shall offer to
Employee the opportunity to reserve the boxes or suites for use on dates (or for
events) to be identified by Employee (and Employee shall specify the number of
seats to be reserved for each such date or event). Employee shall not be
entitled to reserve boxes or suites for more than 25% of the available dates or
events. In addition, to the extent that such boxes and suites are not otherwise
being used by Employer, Employer will notify Employee as and when any such boxes
or suites, or any part thereof, are available for use
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by Employee, and upon receipt of such notification (which may be by telephone)
Employee will promptly indicate whether Employee will use all or any portion of
such available boxes and suites. In addition, prior to any transfer, sale or
relinquishment of any right or interest in any such boxes or suites (or the
right to future leases or use thereof) after the term of this Agreement,
Employer shall first offer to transfer its rights in or to any box or suite (or
such right to future lease or use) to Employee to the extent permitted by the
contract governing Employer's use of such box or suite, at a price equal to
Employer's cost.
c. Perquisites.
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In addition to the salary and benefits contemplated above, Employee shall
also be entitled to the following perquisites of his office:
i. Employee shall be entitled to paid vacation in accordance with
Employer's policies that are applicable to full-time executive employees of
Employer.
ii. Employee shall be entitled, at Employee's request, to attend any
conventions, congresses, events or similar public gatherings of business people
in the publishing industry or in a trade covered by a publication of the
Business, as a representative of Employer.
iii. Employer shall provide Employee with at least the office specified in
Section 7(d) as his place of employment with no alteration or diminishment of
the fixtures and furniture therein, nor of the telephone, facsimile or data
transmission and receipt capabilities thereof so long as Employer leases such
space.
4. Termination. The employment of Employee by Employer, shall be
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terminated prior to expiration of the term of this Agreement only (i) upon
delivery of written notice by Employee to Employer, which notice Employee may
deliver in his sole discretion, (ii) subject to compliance with Section 4(c),
upon delivery of written notice by Employer to Employee, which notice shall
specify whether termination is for cause pursuant to Section 4(b) or otherwise,
and which notice Employer may deliver in its sole discretion, or (iii) as
provided in this Section 4:
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a. Disability.
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In the event that Employee shall fail, because of illness, incapacity or
injury which is determined to be total and permanent by a physician mutually
acceptable to Employer and Employee, to render services required hereunder for
one hundred twenty consecutive calendar days, Employee's employment hereunder
may be terminated by written notice of termination from Employer to Employee.
Thereafter, Employer shall continue, until (i) Employee dies, (ii) Employee
recovers from such disability and returns to service or (iii) 365 days after
such determination, whichever first occurs, to pay Total Compensation to
Employee at a rate and time and in an amount and manner equal to the Total
Compensation payable immediately prior to the termination, minus (ii) the amount
of any cash payments to Employee under the terms of Employer's disability
insurance or its other disability benefits or plans.
b. For Cause.
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Employee's employment hereunder may be terminated and his rights to receive
Total Compensation and (subject to the terms of any plans relating thereto)
Additional Benefits hereunder in respect of any period after such termination,
shall terminate 30 days after a determination by the Board, acting in good faith
based upon actual knowledge at such time, that during the term of this Agreement
Employee has been grossly negligent, has engaged in willful misconduct or a
breach of fiduciary duty, has repeatedly or intentionally failed to perform
stated duties in accordance with the terms of this Agreement, has willfully
violated any law, rule or regulation or has been convicted of a felony, in each
case in a manner that has materially adversely affected the reputation and
financial performance of the Businesses.
Notwithstanding the foregoing, Employee shall not be terminated for cause
pursuant to this Section 4(c) unless Employee has received notice of a proposed
termination for cause at least 60 days prior to the effective date thereof, has
been given the reasonable opportunity to cure any action giving rise to the
termination (if such action is susceptible to cure), and has had an opportunity
to be heard before the Board acts to terminate Employee.
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c. Constructive Termination.
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If Employer takes any of the actions described in the second paragraph of
this subsection (c), Employee may terminate his employment because of a
Constructive Termination Without Cause (as defined below) at any time after the
10th day after a notice of intent to terminate pursuant to this Section 4(c) has
been delivered to the Board, provided such condition (if susceptible to cure) is
not so cured prior to the end of that 10th day. Upon such termination, Employee
shall be entitled to continue to receive his Total Compensation for the
remaining unexpired term of this Agreement, as and when such payments would
otherwise be due hereunder.
For purposes of this Agreement, "Constructive Termination Without Cause"
means the occurrence of any of the following events without the express written
consent of Employee: (i) relocation from his principal office as described in
Section 6(d) hereof, (ii) any other material breach of this Agreement by
Employer, or (iii) the assignment to Employee of a significantly lower position
in the organization in terms of his responsibility, authority and status,
requiring Employee to perform services not commensurate with Employee's ability,
experience and qualifications, in any such case other than as a result of
grounds for termination of employment for cause under Section 4(b), for
disability under Section 4(a) or because of retirement or the termination of
employment by Employee for any other reason.
d. Termination Without Cause. If Employer terminates Employee's
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employment hereunder other than in accordance with Section 4(a) or 4(b),
Employee shall be entitled to continue to receive his Total Compensation for the
remaining unexpired term of this Agreement, as and when such payments would
otherwise be due hereunder.
5. Indemnity. To the fullest extent permitted by applicable law and the
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bylaws of Employer, as from time to time in effect, Employer shall indemnify
Employee and hold Employee harmless for any acts or decisions made in good faith
while performing services for Employer, and Employer shall use its best efforts
to obtain coverage for Employee under any liability insurance policy or policies
now in force or hereafter obtained
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during the term of this Agreement that cover other officers of Employer. To the
same extent, Employer will pay and, subject to any legal limitations, advance
all expenses, including reasonable attorneys' fees and costs of court approved
settlements, actually incurred by Employee in connection with the defense of any
action, suit or proceeding and in connection with any appeal thereon, which has
been brought against Employee by reason of Employee's service as an officer or
agent of Employer or of a subsidiary of Employer. The rights granted to
Employee by this Section 5 shall be in addition to, and not in limitation of,
any other rights that Employee may obtain by reason of law or statute, or
pursuant to Employer's documents of incorporation or bylaws, or under the terms
of any other contracts or agreements.
6. Miscellaneous.
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a. Succession; Survival.
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This Agreement shall inure to the benefit of and shall be binding upon
Employer, its successors and assigns, but without the prior written consent of
Employee this Agreement may not be assigned, whether by operation of law or
express assumption all obligations of Employer hereunder or otherwise. The
obligations and duties of Employee hereunder are personal and otherwise not
assignable.
b. Waiver.
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No failure on the part of any party to exercise or delay in exercising any
right hereunder shall be deemed a waiver thereof or of any other right, nor
shall any single or partial exercise preclude any further or other exercise of
such right or any other right.
c. Choice of Law.
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This Agreement, the legal relations between the parties and any action,
whether contractual or non-contractual, instituted by any party with respect to
matters arising under or growing out of or in connection with or in respect of
this Agreement, the relationship of the parties or the subject matter hereof
shall be governed by and construed in accordance with the laws of the State of
California applicable to contracts made and
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performed in such State and without regard to conflicts of law doctrines, to the
extent permitted by law.
d. Place of Employment.
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During the term of this Agreement, Employee's principal office shall be the
same office space (without modification or alteration) that Employee and his
personal staff occupy on the 20th floor of the Company's headquarters
immediately prior to the date of this Agreement, so long as Employer leases such
space.
e. Severability.
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If this Agreement shall for any reason be or become unenforceable in any
material respect by any party, this Agreement shall thereupon terminate and
become unenforceable by the other party as well. In all other respects, if any
provision of this Agreement is held invalid or unenforceable, the remainder of
this Agreement shall nevertheless remain in full force and effect, and if any
provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all
other circumstances, to the fullest extent permitted by law.
f. Section Headings.
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Section and other headings contained in this Agreement are for convenience
of reference only and shall not affect in any way the meaning or interpretation
of this Agreement.
g. Counterparts.
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This Agreement and any amendment hereto may be executed in one or more
counterparts. All of such counterparts shall constitute one and the same
agreement and shall become effective when a copy signed by each party has been
delivered to the other party.
h. Other Activities.
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Employee agrees to comply with the requirements of Section 6.11 of the
Asset Purchase Agreement on the terms and subject to the conditions and
limitations therein. Such Section
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6.11, insofar as it relates to Employee's actions is hereby incorporated into
this Agreement and made a part hereof.
Employer agrees that, subject to compliance by Employee with his
obligations under Section 6.11 of the Asset Purchase Agreement, Employee may
serve as a director or in any other capacity of any business enterprise or
governmental entity or trade association, whether or not their activities
involve or relate to the business of the Employer, provided in each case that
such service does not in any material way prevent Employee from performing his
duties hereunder.
Subject to compliance by Employee with his obligations under Section 6.11
of the Asset Purchase Agreement, Employee may make and manage personal business
investments of his choice and serve in any capacity with any civic, educational
or charitable organization without seeking or obtaining approval by the Board.
i. No Duty to Mitigate.
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Employee shall have no duty to mitigate any damages suffered by Employee in
connection with Employer's breach of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
"EMPLOYER"
BrightView Communications Group, Inc.
By _________________________
Its ________________________
"EMPLOYEE"
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Xxxxxx X. Xxxxxxxx
625 Mountain Drive
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Xxxxxxx Xxxxx, XX 00000
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Schedule 3(a)
1. The Shot Show
2. The annual convention of the National Rifle Association
3. The annual SEMA convention
4. Any events sponsored by Employer
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