EXHIBIT 10.1
EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement"), dated as of January 1, 1997,
between Bull Run Corporation, a Georgia corporation (the "Company"), and Xxxxxx
X. Xxxxxxx, Xx. ("Executive").
WHEREAS, the Company is desirous of employing Executive to further the
business purposes of the Company; and
WHEREAS, the Company is desirous of being employed by the Company on
the terms provided herein:
NOW, THEREFORE, the Company and Executive agree as follows:
1. Employment. The Company hereby agrees to employ Executive as
President and Chief Executive Officer of the Company, and Executive hereby
agrees to accept such employment and perform the duties of the office of
President and Chief Executive Officer of the Company. Executive shall report to
and be under the direction and control of the Board of Directors of the Company,
and shall have the usual and necessary authority, duties and responsibilities of
President and Chief Executive Officer of the Company. In addition, Executive
shall have such other authority, duties and responsibilities as may from time to
time be prescribed by the Board of Directors. Executive shall devote
substantially all his business time and attention to the business of the Company
and its parent and subsidiaries (if any) and to promoting their best interests,
and shall not during the term of this Agreement be engaged in any other business
activity, whether or not such business activity is pursued for gain, profit or
other pecuniary advantage; provided, however, that, subject to Section 10
hereof, this shall not be construed as preventing Executive (a) from investing
his assets in such form or manner as will not require any services on the part
of Executive in the operation of the affairs of the companies in which such
investments are made, (b) engaging in charitable or other activities which do
not conflict with the activities of the Company, or (c) acting as a director of
companies which are not competitors of the Company. The Company shall furnish
Executive with a private office, secretarial help and other facilities and
services as are suitable to his position and adequate for the performance of his
duties in accordance with the provisions of this Agreement. In addition, the
Company shall provide Executive with such executive perquisites as it normally
provides to the President of the Company consistent with past practices.
2. Term of Employment. Subject to the provisions for termination
hereinafter provided, the term of this Agreement shall be from the date of this
Agreement until December 31, 1999.
3. Place of Performance. In connection with his employment by the
Company, Executive shall be based at the Company's principal executive offices;
provided, however, that Executive shall not be required to perform his duties
for more than thirty (30) working days in any year, or more than ten (10)
consecutive days at one time, at any office located in any place other than the
greater metropolitan area of Atlanta, Georgia.
4. Compensation and Expenses.
(a) During the period of Executive's employment hereunder, the
Company shall pay to Executive a salary at a rate of not less than $325,000 per
year, payable in accordance with the normal payroll practice of the Company
(subject to income tax, social security tax and other applicable withholdings).
Executive's salary shall be reviewed by the Board of Directors of the Company or
the proper committee thereof at intervals not greater than twelve months to
determine what adjustment, if any, should be made, consideration being given to
the scope of his responsibilities and the performance of his duties. Upon such
review, Executive's salary may, but need not, be increased, but shall not be
reduced without Executive's consent.
(b) In addition to his salary, Executive may also be paid such
bonuses and other compensation, if any, as may from time to time be determined
by the Board of Directors of the Company, taking into account, among other
factors, the Company's and the Executive's performance.
(c) During the term of this Agreement, the Company shall reimburse
Executive for all reasonable travel and other business expenses reasonably
necessary and appropriate for the performance of his duties hereunder, provided
that Executive submits receipts or other expense records to the Company in
accordance with the Company's general reimbursement policy then in effect for
executives and other employees of the Company.
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(d) During the term of this Agreement, the Company shall furnish
Executive with an automobile. The Company shall pay for all reasonable expenses
of obtaining, maintaining and operating any such automobile, including lease
payments, insurance, maintenance, car phone, gas and oil.
5. Employee Benefit Plans.
(a) During the term of Executive's employment under this
Agreement, Executive shall be entitled to participate in all employee benefit
plans in effect for executives of the Company during the term of this Agreement
and shall be provided with an annual physical examination and up to $4,000
annual reimbursement for medical benefits and deductibles not covered by the
Company's benefit plans.
(b) During the term of Executive's employment, Executive shall be
entitled to reasonable vacations consistent with overall Company policy and
commensurate with his position and responsibilities, as well as paid holidays
given by the Company to its employees.
6. Offices.
Executive agrees to serve, if elected or appointed thereto, as an
officer or director of any of the Company's subsidiaries.
7. Termination.
(a) Death. Executive's employment hereunder shall terminate upon
his death.
(b) Disability. If, as a result of Executive's incapacity due to
physical or mental illness ("Disability"), Executive shall be unable to
substantially perform his duties hereunder at the Company's principal executive
offices for six (6) consecutive months, then Executive shall be deemed to be
permanently disabled and the Company shall give Executive Notice of Termination
(as hereinafter defined).
(c) Cause. The Company may terminate Executive's employment
hereunder for Cause. For the purpose of this Agreement, the Company shall have
"Cause" to terminate Executive's employment hereunder upon (i) the failure by
Executive to substantially perform his duties hereunder (other than any such
failure resulting from incapacity due to physical or mental illness) or repeated
refusal by Executive to obey reasonable and lawful orders of the Board of
Directors of the Company, which orders are consistent with then established
policies of the Company and with the position, status, duties and office of
Executive, provided that such failure or refusal has, or is likely to have, a
material adverse effect on the business of the Company, or (ii) the engaging by
Executive in malfeasance or acts of moral turpitude materially and substantially
injurious to the Company or the engaging by Executive in any act prohibited by
Section 10 hereof. Executive shall not be deemed to have been terminated for
Cause unless and until there shall have been delivered to Executive a copy of a
resolution, duly adopted by a majority of all of the Directors of the Company,
finding that in the good faith opinion of the Board, Executive was guilty of
conduct set forth above in clause (i) or (ii) of the preceding sentence, and
specifying the particulars thereof in detail.
(d) Notice of Termination. Any purported termination by the
Company pursuant to subsection (b) or (c) shall be communicated by written
Notice of Termination to the Executive. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice that shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision indicated.
(e) Date of Termination. The effective date of termination
shall be:
(i) If Executive's employment is terminated for Disability,
thirty (30) days after Notice of Termination is given (provided that
Executive shall not have returned to the performance of his duties on a
full-time basis during such thirty (30) day period, in which event such
Notice of Termination
will be void);
(ii) If Executive's employment is terminated pursuant to
paragraph (c) above, the date specified in the Notice of Termination;
or
(iii) If Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given.
(f) Termination by Executive. Executive may terminate his
employment effective upon written notice to the Company in the event of a
material breach by the Company of this Agreement.
8. Compensation Upon Termination or During Disability.
(a) If Executive's employment shall be terminated by reason of his
death, the
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Company shall pay to his estate, the salary which would otherwise be
payable to Executive up to the end of the month in which his death occurs and
for the twelve (12) months after the month in which his death occurs.
(b) During any period that Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, Executive
shall continue to receive his full salary at the rate then in effect for the
greater of one (1) year or such period until his permanent disability status is
established pursuant to subsection 7(b) hereof. Thereafter, Executive's
compensation shall be in accordance with such long-term disability plans of the
Company as may then be in effect.
(c) If Executive is terminated for Cause he shall receive only his
salary to the Date of Termination.
(d) If, in breach of this Agreement, the Company shall terminate
Executive's employment other than pursuant to subsections 8(a), (b) or (c)
hereof, or if Executive terminates his employment pursuant to Section 7(g), then
such termination shall nevertheless be effective, but the Company shall continue
to pay Executive his full salary pursuant to subsection 4(a) hereof through the
end of the term of this Agreement and, to the extent permitted by applicable
law, shall pay to the executive all benefits under the Company's employee
benefit plans that have accrued to executive, but were unpaid, through the
effective date of termination and cause all stock options (if any) issued to
Executive by the Company that are outstanding on the effective date of
termination to vest in full as of the effective date of termination, and
Executive shall have the right to full health benefit coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"); provided,
however, that if Executive is ineligible for coverage under COBRA, the Company
shall provide equivalent coverage to Executive at a cost to Executive no greater
than that under COBRA, but only to the extent that Executive is not covered
under any other health benefit plan.
9. Successors; Binding Agreement.
The rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon the successors and assigns of
the Company, and all rights of Executive hereunder shall inure to the benefit of
and be enforceable by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
10. Covenants.
(a) Executive agrees that during the term of this Agreement and
for a period of one (1) year from the termination of Executive's employment with
the Company (unless such termination is the result of a breach of the Agreement
by the Company), whether or not such termination occurs at the end of the term
of this Agreement, he will not, directly or indirectly, enter into any business
competitive with that of the Company or of any of its affiliates, or work in or
render any service or assistance to any person or entity that is engaged
primarily in a business that is competitive with that of the Company; provided,
however, that the ownership of less than five percent of an issue of the capital
stock of a publicly held company if such issue of capital stock is traded on a
national securities exchange or NASAQ shall not be deemed a violation of this
Section 10(a). Executive further agrees that he will not, directly or
indirectly, solicit any of the Company's management employees to work for him
or any competitor of the Company.
(b) Executive hereby recognizes that the value of the Confidential
Information disclosed by the Company to Executive in the course of his
engagement with the Company is attributable substantially to the fact that such
Confidential Information is maintained by the Company and its Affiliates in the
strictest confidentiality and secrecy and would be unavailable to others without
the expenditure of substantial time, effort or money. Executive, therefore,
covenants and agrees to keep strictly secret and confidential the Confidential
Information of the Company in accordance with the following provisions of this
Section 10(b). Executive covenants and agrees to safeguard the Confidential
Information of the Company disclosed to or otherwise acquired by Executive in
the course of his engagement with the Company and to prevent the disclosure or
other dissemination thereof to any third party, or the use thereof by any
Competitive Business or Competitive Business Enterprise. In implementation of
the foregoing, Executive shall not disclose any of the Confidential Information
of the Company to any employee or consultant except those for whom disclosure
is necessary for the effective performance of their responsibilities as
employees or consultants and, in each case, only to the
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extent required for such effective performance of responsibilities by employees
or consultants to whom such disclosure is made pursuant to this Section 10(b).
The obligations undertaken by Executive pursuant to this Section 10(b) shall not
apply to any Confidential Information which hereafter shall become published or
otherwise generally available to the public, except in consequence of a willful
or negligent act or admission by Executive or his Affiliates, or employees in
contravention of the obligations hereinabove set forth in this Section 10(b),
and such obligations shall, as so limited, survive expiration or termination of
this Agreement.
(c) Executive shall not, during or after the term of this
Agreement, make any statement or do any act which will disparage or injure the
goodwill or reputation of the Company of its Affiliates. Executive and the
Company mutually agree that Executive's obligations contained in this Section 10
are reasonable and necessary for the protection of the Company and are of a
special and unique character which gives them a particular value, and that the
Company cannot be reasonably or adequately compensated in damages in an action
at law in the event Executive breaches such obligations. Executive therefore
expressly agrees that, in addition to any other rights or remedies which the
Company may possess, the Company shall be entitled to injunctive and other
equitable relief to prevent a breach of this Section 10 by Executive, including
a temporary restraining order or temporary injunction from any court of
competent jurisdiction restraining any threatened or actual violation, and
Executive consents to the entry of such an order and injunctive relief and
waives the making of a bond as a condition for obtaining such relief. Such right
shall be cumulative and in addition to any other legal or equitable rights and
remedies the Company may have.
(d) As used in this Section 10, the following terms shall have the
following respective meanings:
(i) "Affiliate" means any person or entity controlling,
controlled by or under common control with another person or entity
through any means; and
(ii) "Confidential Information" means all information not in
the public domain relating to the business of the Company, its
subsidiaries or affiliated entities, or relating to its employees,
accounts, suppliers or operations.
11. Notice.
For the purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered, if personally delivered, or three (3) days
after being mailed by United States registered mail, return receipt requested,
postage prepaid, addressed as follows:
If to Executive:
Xxxxxx X. Xxxxxxx, Xx.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
If to the Company:
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
12. Miscellaneous.
No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by Executive and such officer as may be specifically designated by the
Board of Directors of the Company. No waiver by either party hereto 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 or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of
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Georgia.
13. Counterparts.
This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. Severability.
If in any jurisdiction, any provision of this Agreement or its
application to any party or circumstance is restricted, prohibited or
unenforceable, such provision shall, as to such jurisdiction, be ineffective
only to the extent of such restriction, prohibition or unenforceability, without
invalidating the remaining provisions hereof and without affecting the validity
or enforceability of such provision in any other jurisdiction or its application
to other parties or circumstances. In addition, if any one or more of the
provisions contained in this Agreement shall for any reason in any jurisdiction
be held to be excessively broad as to time, duration, geographical scope,
activity or subject, it shall be construed, by limiting and reducing it, so as
to be enforceable to the extent compatible with the applicable law of such
jurisdiction as it shall then appear.
IN WITNESS WHEREOF, this Agreement has been executed by the Company and
Executive as of the date written above.
BULL RUN CORPORATION
By: /s/ J. XXXX XXXXXXXX
Title: Chairman
/s/ XXXXXX X. XXXXXXX, XX.
XXXXXX X. XXXXXXX, XX.
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