Exhibit 10.35
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of March ___, 2000,
between NEXTMEDIA GROUP, INC., a Delaware corporation ("Employer") and XXXXXX
XXXXX ("Executive").
WHEREAS, the 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 term of
Executive's employment under this Agreement shall commence on the date hereof
(the "Effective Date") and, subject to prior termination as provided in Section
6 below, shall continue through the fifth anniversary of the Effective 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 a Vice President of Finance or 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
him from time to time by the Chief Executive Officer of Employer, including
specifically the duties relating to financial management and merges and
acquisitions, and (iii) except as set forth in Section 2(b) hereof, shall
devote his entire business time, energy, talent, and best efforts to the
faithful and efficient performance of his duties as Vice President of
Finance.
(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 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 the management of his personal investment assets; provided,
that such activities do not interfere in any material respect with the
performance by Executive of his 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 first contract year shall be One Hundred
Fifty Thousand Dollars ($150,000), which 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 and based upon the recommendation of the Chief
Executive 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 the Employer to
other senior executives, which, at a minimum, shall include the following:
(a) Life Insurance. Employer shall provide Executive, and 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. Employee 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, and Executive, his estate and/or heirs hereby
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
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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 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 his
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 the 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
him in the performance of his duties hereunder.
(d) Automobile. During the Employment Period, Employer shall provide
Executive with or pay or 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. During the Employment Period, Employer shall
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 the Employer, Executive shall participate
in such stock award,
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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.
(h) Location of Offices. Executive shall not be required to perform
his duties under this Agreement at the permanent home/headquarters office
or location for Employer, but may perform his duties from such other
location as the Executive may choose, provided that, (i) the Executive is
able to fully and effectively perform his duties from such location and
(ii) such location is approved by the Board of Directors.
(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 he is unable to
perform his 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 his 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
he would have been entitled under this Agreement had he continued to be
actively employed by Employer to the earliest of (i) the first date on
which he is no longer so Disabled, (ii) the date on which his employment is
terminated by Employer due to Disability pursuant to Section 6(a), (iii)
the date of his 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
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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 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 Bonus for any period
during which Executive is so Disabled.
(d) Executive agrees to submit such 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 (91st) 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 his duties as an employee of the
Employer or failed to devote his entire business, time, energy, talent
and best efforts to the performance of his duties under this Agreement
in any material respect;
(ii) Executive has been convicted of, or 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 his employment with Employer in
connection with Employer, the Company or any of its Affiliates;
(iv) Executive breaches any of his obligations hereunder in any
material respect;
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(v) Executive has been grossly negligent in the performance of
his duties under this Agreement;
(vi) Executive has engaged in the illegal use of drugs or suffers
from drug dependence or habitual insobriety;
(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 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 require such
indebtedness to become due or to be redeemed or repurchased prior to
its stated maturity (or to cause or 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, if any, 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 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 the Chief Executive Officer to Executive.
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(d) By Executive for Good Reason. Executive may terminate his
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 a reduction in the
Base Salary by Employer, other than a reduction pursuant to any
retirement or welfare benefit plan;
(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 vice president 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 the 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
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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 his
employment hereunder without Good Reason (as defined above) at any time
upon notice from Executive to the Chief Executive Officer.
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 fifth anniversary of the
Effective Date, Employer shall pay to Executive, as soon as practicable
after the date on which Executive's employment with Employer terminates
(the "Termination Date"), any Base Salary and Bonus earned but unpaid
through the Termination Date, but no further Base Salary, Bonus, or other
benefits shall accrue or 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 fifth anniversary of the
Effective Date, Employer shall pay to Executive, as soon as 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 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 fifth anniversary of the Effective
Date due to his death or Disability, Employer shall pay to the
beneficiaries designated in writing by Executive or Executive's estate, as
applicable, as soon as practicable after the Termination Date, any Base
Salary and 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.
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(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 fifth
anniversary of the Effective Date:
(i) Employer shall pay to Executive, as soon as practicable after
the Termination Date, but in no event more than fifteen (15) days
after such Termination Date, any Base Salary and Bonus earned but
unpaid through the Termination Date.
(ii) Employer shall pay to Executive, as soon as 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 his obligations under Section 8 hereof.
(iii) Employer shall pay to Executive, as soon as 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.
(iv) Employer shall continue to provide to Executive the major
medical coverage set forth in Section 4(b) on substantially the same
terms as set forth therein until the earlier of (A) the expiration of
one year following the Termination Date 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.
Notwithstanding the terms and provisions of this Agreement to the contrary,
in the event Xxxx Xxxxxx and Xxxxxx Xxxxxx elect to waive all or a portion of
their respective severance benefits as a result of a change of control of
Employer, a sale of all or substantially all of the assets of Employer or a
merger, sale, consolidation or other transaction in which Employer is not the
surviving entity, Executive agrees to waive his severance benefits under this
Section 7(c), in the same proportion as are being waived by Xxxx Xxxxxx and
Xxxxxx Xxxxxx.
(d) No Duty to Mitigate. Executive shall not be obligated to seek
other employment or 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 his employment is terminated prior to the fifth anniversary
of the Effective Date under
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circumstances entitling him to payment of any amounts and/or provision of
any benefits under this Section 7, his sole right and remedy against
Employer in connection with his employment, this Agreement, and the
termination of his 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
his employment with Employer will require that he 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 it at a competitive disadvantage
and would do material damage, financial and otherwise, to its business; and that
by virtue of Executive's experience and expertise, some of his services to
Employer will be special and unique and that Employer and the 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 not 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 or the Company, communicate, divulge, or disclose
to any other person not a director, officer, or employee, or not engaged to
render services to or for, Employer, the Company or their Affiliates, or
use for his own benefit or purposes any Confidential Information (as
defined below) of or relating to Employer, the Company or their Affiliates
that he has obtained from Employer, the Company or their Affiliates or any
predecessor entity (whether obtained by Executive before, during, or after
the term of his employment under this Agreement and including any such
information developed by Executive while employed by Employer); except that
this 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 the Employer, the Company or their Affiliates that is not
generally known, is proprietary to
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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 his 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 fifth anniversary of the Effective
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 (other than any of the
Investments, or the Company or its Affiliates, or any existing
investments of Executive on the Effective Date disclosed to Employer
and set forth on Exhibit D of the Company Agreement) (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.
(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
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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
furnish to Employer a complete record of every discovery, invention,
improvement, innovation, design, or work (any "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, Executives, 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
associated therewith, including, without limitation, reasonable and
necessary attorney's fees.
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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: Xxxxxx Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
and if to Employer, to: NextMedia Group, Inc.
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 000-X
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx and 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;
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(c) Entities that are Controlled by such family members; and
(d) Entities in which Control Persons have a material investment.
"Chief Executive Officer" shall mean the chief executive officer of
Employer.
"Company" shall mean NextMedia Investors LLC, a Delaware limited liability
company.
"Company Agreement" shall mean the 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.
"Investments" shall have the meaning set forth in the Company Agreement.
"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.
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[signature page to follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
"EMPLOYER" "EXECUTIVE"
NEXTMEDIA GROUP, INC.
---------------------
Xxxxxx Xxxxx
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
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