EXHIBIT 10.1
SECOND AMENDMENT TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Amendment"), is made this 20th day of August, 2001, between XXXXXXXXXX.XXX,
INC, a Delaware corporation (the "Company") and Xxxxxxx Xxxx.
The Company and the Executive have heretofore entered into an Amended and
Restated Employment Agreement dated as of January 28, 2000, as amended on June
30, 2000 (as amended, the "Agreement") (capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Agreement). The
Compensation Committee ("Compensation Committee") of the Board of Directors of
the Company (the "Board") has agreed to amend the Agreement to provide for
certain additional benefits to the Executive.
NOW, THEREFORE, in consideration of the premises, the parties agree as
follows:
1. AMENDMENTS. Effective as of the date hereof, the Agreement shall be
amended in its entirety to read as follows:
(a) Section 2 of the Agreement shall be amended in its entirety to read as
follows:
"2. Term of Agreement. Subject to the terms and conditions hereof,
the term of the Executive's employment pursuant to this Agreement (the
"Term") shall be three years and such Term shall automatically extend by
one day for each day elapsed, so that at all times the Term shall be for
a three-year period; provided, however, if at any time the Company or the
Executive delivers a written notice to the other (an "Expiration Notice")
to the effect that the Agreement shall expire on a date specified in the
Expiration Notice that is three years after the date the Expiration
Notice is delivered to the Company or the Executive, as the case may be,
then the Term shall expire on the date specified in the Expiration
Notice."
(b) Section 3 of the Agreement shall be amended in its entirety to read as
follows:
"3. Position and Duties. The Executive shall serve as the Chairman
of the Board, President and Chief Executive Officer of the Company and
shall have powers and authority superior to any other officer or employee
of the Company or of any subsidiary of the Company. The Executive shall
report to, and shall have such other powers and duties as may from time
to time be delegated to him by, the Board or, following a Change in
Control (as defined below), the senior executive, board or committee
established pursuant to the terms of the Change of Control that is
responsible for the unit or division of which the Company has become a
part; provided that such duties are generally consistent with his present
duties and with the Executive's position. The Executive shall devote
substantially all of his working time and efforts during normal business
hours to the business and affairs of the Company
in substantially the same manner (both as to working time and effort) as
the Executive has devoted to the Company in the past; provided, that it
shall not be a violation of this Agreement for the Executive to (i) serve
on corporate, civic or charitable boards or committees, (ii) deliver
lectures or fulfill speaking engagements or (iii) manage personal
investments, so long as such activities do not interfere with the
performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement."
(c) The second paragraph of Section 8(d) of the Agreement shall be amended in
its entirety to read as follows:
"For purposes of this Agreement the term "Good Reason" shall mean,
without the Executive's express prior written consent, the occurrence of
any one or more of the following: (A) the assignment to the Executive of
any duties or reporting obligations other than those contemplated or
permitted by, or any limitation of the powers of the Executive in any
respect not contemplated or permitted by, Section 3 hereof, or any other
action by the Company which results in a diminution in the nature or
status of the Executive's position, authority, duties or
responsibilities; provided, however, that Good Reason shall not be deemed
to exist by reason of changes in such nature or status solely as a result
of the Company becoming part of a unit or division of a larger entity
pursuant to or following a Change of Control; (B) a reduction by the
Company in the Executive's Base Salary as the same shall be increased
from time to time; (C) the Company's requiring the Executive to be based
at a location outside of Broward County, Florida; (D) a failure by the
Company to comply with its other obligations and agreements contained
herein, including but not limited to any failure by the Company to comply
with any of the provisions of Section 5 hereof; (E) a failure of the
Company to obtain a satisfactory agreement from any successor to the
Company to assume and agree to perform this Agreement, as contemplated in
Section 10(c) hereof; or (F) any purported termination by the Company of
the Executive's employment that is not effected pursuant to a Notice of
Expiration or a Notice of Termination satisfying the requirements of
Section 2 or subsection 8(e), respectively, and otherwise in accordance
with the terms of this Agreement, and for purposes of this Agreement, no
such termination shall be effective."
(d) Section 9(a) of the Agreement shall be amended in its entirety to read as
follows:
"(a) Death. If the Executive's employment shall be terminated by
reason of his death, the Company shall pay to such person as the
Executive shall have designated in a notice filed with the Company, or,
if no such person shall have been designated, to his estate, (i) any
unpaid amounts of his Base Salary or Incentive Compensation accrued prior
to the date of his death and (ii) a lump sum death benefit equal to the
sum of the Executive's then current Base Salary and the Executive's
Incentive Compensation for the immediately preceding calendar year
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(the "Most Recent Incentive Compensation"); and upon making such
payments, the Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses incurred prior to
the date of the Executive's death pursuant to Section 5(c)); provided,
that the Executive's spouse, beneficiaries or estate shall also be
entitled to receive any amounts or other benefits payable pursuant to any
pension or employee benefit plan, life insurance policy or other plan,
program or policy then maintained or provided by the Company in
accordance with the terms thereof, or any other agreement between the
Executive and the Company. In addition, all unvested Awards (as defined
in the Company's 1997 Incentive Compensation Plan), including, but not
limited to, stock options and/or unvested restricted Company securities,
held by the Executive on the Date of Termination shall continue to vest
in accordance with the vesting schedule for such Awards then in effect,
and upon vesting shall (x) in the case of stock options, become
exercisable and (y) in the case of restricted Company securities, no
longer be subject to forfeiture or any other conditions or restrictions
on transfer. Moreover, each such stock option that vests pursuant to the
preceding sentence, together with any previously vested and unexercised
stock options, shall be exercisable in accordance with their respective
terms for a period of one (1) year following the date on which it becomes
vested (or, in the case of any previously vested and unexercised options,
one (1) year following the Date of Termination) or, if earlier, until the
then scheduled expiration date(s) of such options."
(e) Section 9(b) of the Agreement shall be amended in its entirety to read as
follows:
"(b) Disability. During any period that the Executive fails
to perform his duties hereunder as a result of incapacity due to physical
or mental illness, the Executive shall continue to receive his full Base
Salary and any Incentive Compensation until the Executive's employment is
terminated pursuant to Section 8(b) hereof, or until the Executive
terminates his employment pursuant to Section 8(d)(ii) hereof, whichever
first occurs. Following such termination, the Executive shall be paid in
equal monthly installments an amount equal to his Base Salary at the rate
in effect at the time Notice of Termination is given until the later of
one year after termination of his employment or the expiration of the
Term (as in effect on the date of termination), plus any disability
payments otherwise payable by or pursuant to plans provided by the
Company. In addition, the Executive shall be entitled to receive any
amounts payable pursuant to any pension or employee benefit plan, life
insurance policy or other plan, program or policy then maintained or
provided by the Company to the Executive in accordance with the terms
thereof. In addition, all unvested Awards, including but not limited to
stock options and/or unvested restricted Company securities, held by the
Executive on the Date of Termination shall continue to vest in accordance
with the vesting schedule for such Awards then in effect, and upon
vesting shall (x) in the case of stock options, become exercisable and
(y) in the case of restricted Company securities, no longer be subject to
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forfeiture or any other conditions or restrictions on transfer.
Moreover, each such stock option that vests pursuant to the preceding
sentence, together with any previously vested and unexercised stock
options, shall be exercisable in accordance with their respective terms
for a period of one (1) year following the date on which it becomes
vested (or, in the case of any previously vested and unexercised options,
one (1) year following the Date of Termination) or, if earlier, until the
then scheduled expiration date(s) of such options. Notwithstanding
anything in this section to the contrary, all such vesting of Awards
shall discontinue immediately, and any unexercised options shall
terminate and be cancelled immediately upon a breach by the Executive of
the provisions of Section 7 hereof or the Executive's acceptance of
employment with another entity."
(f) Section 9(d)(C) of the Agreement shall be amended in its entirety to read
as follows:
"(C) in lieu of any further salary or bonus payments to the Executive
for periods subsequent to the Date of Termination, and as a severance
benefit to the Executive, a lump sum amount equal to the sum of (i) three
(3) times the Executive's annual Base Salary in effect immediately prior
to the occurrence of the circumstances giving rise to such termination,
plus (ii) an amount equal to three (3) times the greater of (1) the
average Annual Bonus paid to the Executive for the three years prior to
the Date of Termination or (2) the amount of the most recent Annual Bonus
paid to the Executive."
(g) The first paragraph of Section 9(e) of the Agreement shall be amended in
its entirety to read as follows:
"(e) Acceleration of Vesting; Sale of Shares. Unless the Company
terminates the Executive's employment for Cause, the Executive terminates
his employment for other than Good Reason or the Executive's employment
is terminated due to his death or Disability, upon (i) termination of the
Executive's employment or (ii) a Change of Control, all unvested Awards,
including, but not limited to stock options and/or restricted Company
securities, held by the Executive on the Date of Termination shall
immediately vest and upon vesting shall (x) in the case of stock options,
become exercisable and (y) in the case of restricted Company securities,
no longer be subject to forfeiture or any other conditions or
restrictions on transfer. Moreover, each such stock option that is
deemed vested pursuant to the preceding sentence, together with any
previously vested and unexercised stock options, shall be exercisable by
the Executive in accordance with their respective terms for a period of
one (1) year following the Date of Termination or the date of the Change
in Control, as the case may be, or, if earlier, until the then scheduled
expiration date(s) of such options. The Company shall provide the
Executive such cooperation and assistance as may reasonably be necessary
to effect cashless exercises of any such stock option and the sale of any
such restricted Company security beneficially owned by the Executive at
the Date of Termination.
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Furthermore, upon a Change of Control caused by CBS Broadcasting Inc.
("CBS") or any of its affiliates, pursuant to the issuance of securities
by the Company to CBS or any affiliate thereof, becoming the "beneficial
owner" (within the meaning of Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of the Company representing
forty percent (40%) or more of the combined voting power of the Company's
outstanding securities entitled to vote generally in the election of
directors (a "CBS Change of Control"), in addition to the accelerated
vesting of Awards as set forth in this Section 9(e), the Executive shall
be entitled, in the Executive's sole discretion, upon written notice to
the Company within 60 days after the date of the CBS Change of Control,
to surrender any or all stock options then held by such Executive with an
exercise price greater than the Fair Market Value (defined below) of the
Company's common stock on the date of such CBS Change of Control to the
Company in exchange for shares of common stock of the Company awarded
pursuant to the Plan at an exchange rate of one share of common stock for
every two options surrendered. For the purposes of this Agreement, the
"Fair Market Value" of the Company's common stock as of any given date
shall be (i) the closing sale price per share reported on a consolidated
basis for the common stock as listed on the Nasdaq National Market or the
principal stock exchange or market on which the common stock is traded on
the date as of which such value is being determined or, if there is no
sale on that date, then on the last previous day on which a sale was
reported or (ii) if the common stock is not listed on an exchange or
market, the fair market value of the common stock as determined by the
Board."
(h) Section 9(f) of the Agreement shall be amended in its entirety to read as
follows:
"(f) Maintenance of Benefit. Unless the Executive is terminated for
Cause, the Company shall maintain in full force and effect, for the
continued benefit of the Executive and/or his family for three (3) years
after termination for any reason, all employee medical, health and
hospitalization plans and programs in which the Executive and/or his
family was entitled to participate in immediately prior to the Date of
Termination provided that the continued participation of the Executive
and/or his family is possible under the general terms and provisions of
such plans and programs. In the event that the participation of the
Executive and/or his family in any such plan or program is barred, the
Company shall arrange to provide the Executive and/or his family with
benefits substantially similar to those which the Executive and/or his
family would otherwise have been entitled to receive under such plans and
programs from which his or their continued participation is barred."
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(i) Section 12 of the Agreement shall be amended in its entirety to read as
follows:
"12. Notice. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
If to the Company: XxxxxxXxxx.xxx, Inc.
0000 X. Xxxxxxx Xxxxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Board of Directors
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notices and communications
shall be effective when actually received by the addressee."
2. EFFECTIVE DATE. This Amendment shall be effective upon its execution by
the Company and the Executive.
3. COUNTERPARTS. This Amendment may be executed in counterparts and by
different parties hereto in separate counterparts each of which, when so
executed and delivered, shall be deemed to be an original and all of which, when
taken together, shall constitute one and the same instrument.
4. NO OTHER MODIFICATION. Except as otherwise expressly modified by the
terms and provisions of this Amendment, the Agreement shall remain in full force
and effect, and is hereby in all respects confirmed and ratified by the parties
hereto.
5. REFERENCES TO AGREEMENT. From and after the effective date hereof, each
reference in the Agreement to "this Agreement," "hereto," "hereunder" or words
of like import, and all references to the Agreement in any and all agreements,
instruments, documents, notes, certificates and other writings of every kind and
nature shall be deemed to mean the Agreement as modified and amended by this
Amendment.
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IN WITNESS WHEREOF, the Company and the Executive have executed this Second
Amendment to Amended and Restated Employment Agreement as of the date first
written above.
XXXXXXXXXX.XXX, INC
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Xxxxxxx X. Xxxxxxx
President, Finance and Administration, and
Chief Financial Officer
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
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