CHANGE OF CONTROL EMPLOYMENT AGREEMENT
Exhibit
10.1
AGREEMENT,
dated as of the __ day of October, 2007 (this “Agreement”), by and between
Journal Register Company, a Delaware corporation (the “Company”), and Xxxxx
Xxxxxx (the “Executive”).
WHEREAS,
the Board of Directors of the Company (the “Board”), has determined that it is
in the best interests of the Company and its shareholders to assure that the
Company will have the continued dedication of the Executive, notwithstanding
the
possibility, threat or occurrence of a Change of Control (as defined
herein). The Board believes it is imperative to diminish the
inevitable distraction of the Executive by virtue of the personal uncertainties
and risks created by a pending or threatened Change of Control and to encourage
the Executive’s full attention and dedication to the Company in the event of any
threatened or pending Change of Control, and to provide the Executive with
compensation and benefits arrangements upon a Change of Control that ensure
that
the compensation and benefits expectations of the Executive will be satisfied
and that provide the Executive with compensation and benefits arrangements
that
are competitive with those of other corporations. Therefore, in order
to accomplish these objectives, the Board has caused the Company to enter into
this Agreement.
NOW,
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
Section
1. Certain Definitions. (a) “Affiliated Company”
means any company controlled by, controlling or under common control with the
Company.
(b) “Change
of Control” means:
(1) The
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”), of beneficial ownership (within the meaning of
Rule 13d 3 promulgated under the Exchange Act) of 20% or more of either (A)
the
then-outstanding shares of common stock of the Company (the “Outstanding Company
Common Stock”) or (B) the combined voting power of the then-outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”); provided, that, for
purposes of this Section 1(b), the following acquisitions shall not constitute
a
Change of Control: (i) any acquisition directly from the Company,
(ii) any acquisition by the Company, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
Affiliated Company, or (iv) any acquisition by any corporation pursuant to
a
transaction that complies with Sections 1(b)(3)(A), 1(b)(3)(B) and
1(b)(3)(C);
(2) Individuals
who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease
for any reason to constitute at least a majority of the Board;
provided, that any individual becoming a director subsequent to the
date hereof whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies
or
consents by or on behalf of a Person other than the Board;
(3) Consummation
of a reorganization, merger, statutory share exchange or consolidation or
similar corporate transaction involving the Company or any of its subsidiaries,
a sale or other disposition of all or substantially all of the assets of the
Company, or the acquisition of assets or stock of another entity by the Company
or any of its subsidiaries (each, a “Business Combination”), in each case
unless, following such Business Combination, (A) all or substantially all of
the
individuals and entities that were the beneficial owners of the Outstanding
Company Common Stock and the Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own, directly or indirectly,
more than 60% of the then-outstanding shares of common stock and the combined
voting power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation that, as a result of such transaction, owns the Company or all
or
substantially all of the Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership
immediately prior to such Business Combination of the Outstanding Company Common
Stock and the Outstanding Company Voting Securities, as the case may be, (B)
no
Person (excluding any corporation resulting from such Business Combination
or
any employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then-outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior to the
Business Combination, and (C) at least a majority of the members of the board
of
directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for such Business Combination;
or
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(4) Approval
by the shareholders of the Company of a complete liquidation or dissolution
of
the Company.
(c) “Change
of Control Period” means the period commencing on the date hereof and ending on
the third anniversary of the date hereof; provided, however, that, commencing
on
the date one year after the date hereof, and on each annual anniversary of
such
date (such date and each annual anniversary thereof, the “Renewal Date”), unless
previously terminated, the Change of Control Period shall be automatically
extended so as to terminate three years from such Renewal Date, unless, at
least
60 days prior to the Renewal Date, the Company shall give notice to the
Executive that the Change of Control Period shall not be so
extended.
(d) “Effective
Date” means the first date during the Change of Control Period on which a Change
of Control occurs. Notwithstanding anything in this Agreement to the
contrary, if a Change of Control occurs and if the Executive’s employment with
the Company is terminated prior to the date on which the Change of Control
occurs, and if it is reasonably demonstrated by the Executive that such
termination of employment (1) was at the request of a third party that has
taken
steps reasonably calculated to effect a Change of Control or (2) otherwise
arose
in connection with or anticipation of a Change of Control, then “Effective Date”
shall mean the date immediately prior to the date of such termination of
employment.
Section
2. Employment Period. The Company hereby agrees to continue the
Executive in its employ, subject to the terms and conditions of this Agreement,
for the period commencing on the Effective Date and ending on the second
anniversary of the Effective Date (the “Employment Period”); provided, however,
that the Employment Period shall terminate upon the Executive’s termination of
employment for any reason, as provided for in this Agreement; and provided,
further, that in any event the Employment Period shall end on the Executive’s
65th birthday.
Section
3. Terms of Employment. (a) Position and
Duties.
(1) During
the Employment Period, (A) the Executive’s position (including status, offices,
titles and reporting requirements), authority, duties and responsibilities
shall
be at least commensurate in all material respects with the most significant
of
those held, exercised and assigned at any time during the 120-day period
immediately preceding the Effective Date, and (B) the Executive’s services shall
be performed at the office where the Executive was employed immediately
preceding the Effective Date or at any other location less than 35 miles from
such office.
(2) During
the Employment Period, and excluding any periods of vacation and sick leave
to
which the Executive is entitled, the Executive shall devote the Executive’s full
attention and time during normal business hours to the business and affairs
of
the Company and, to the extent necessary to discharge the responsibilities
assigned to the Executive hereunder, to use the Executive’s best efforts to
perform faithfully and efficiently such responsibilities. It shall
not be a violation of this Agreement for the Executive, during the Employment
Period, to serve on corporate, civic or charitable boards or committees, deliver
lectures, fulfill speaking engagements or teach at educational institutions
and
manage personal investments, so long as such activities do not significantly
interfere with the performance of the Executive’s responsibilities as an
employee of the Company in accordance with this Agreement. It is
expressly understood and agreed that, to the extent that any such activities
have been conducted by the Executive prior to the Effective Date, the continued
conduct of such activities (or the conduct of activities similar in nature
and
scope thereto) subsequent to the Effective Date shall not thereafter be deemed
to interfere with the performance of the Executive’s responsibilities to the
Company.
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(b) Compensation.
(1) Base
Salary. During the Employment Period, the Executive shall receive a
base salary (the “Base Salary”) at an annual rate at least equal to 12 times the
highest monthly base salary paid or payable, including any base salary that
has
been earned but deferred, to the Executive by the Affiliated Companies in
respect of the 12-month period immediately preceding the month in which the
Effective Date occurs. The Base Salary shall be paid at such
intervals as the Company pays executive salaries generally. During
the Employment Period, the Base Salary shall be reviewed at least annually
for
possible increase effective as of each January 1 during the Employment
Period. Any increase in the Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this
Agreement. The Base Salary shall not be reduced after any such
increase and the term “Base Salary” shall refer to the Base Salary as so
increased.
(2) Annual
Bonus. In addition to the Base Salary, the Executive shall be
entitled to earn, for each fiscal year ending during the Employment Period,
an
annual bonus (the “Annual Bonus”) based on the achievement of performance
criteria as determined by the Board or an appropriate committee thereof, and
with the target amount of the Annual Bonus being not less than the target amount
in effect immediately prior to the Effective Date. Any Annual Bonus
that is so earned shall be paid no later than two and a half months after the
end of the fiscal year for which the Annual Bonus is awarded, unless the
Executive shall elect to defer the receipt of such Annual Bonus.
(3) Incentive,
Savings and Retirement Plans. During the Employment Period, the
Executive shall be entitled to participate in all cash incentive, equity
incentive, savings and retirement plans, practices, policies, and programs
applicable generally to other senior executives of the Company; provided, that
such incentive plans, practices, policies shall provide the Executive with
compensation opportunities at least comparable to those provided to the
Executive immediately before the Effective Date.
(4) Welfare
Benefit Plans. During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for participation in
and shall receive all benefits under welfare benefit plans, practices, policies
and programs provided by the Company (including, without limitation, medical,
prescription, dental, disability, employee life, group life, accidental death
and travel accident insurance plans and programs) to the extent applicable
generally to other senior executives of the Company; provided, that such plans,
practices, policies, and programs shall provide the Executive with aggregate
benefits at least comparable to those provided to the Executive immediately
before the Effective Date.
(5) Expenses. During
the Employment Period, the Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Executive in
accordance with the policies, practices and procedures of the Company in effect
generally at any time after the Effective Date with respect to senior executives
of the Company; provided, that such policies, practices and procedures shall
be
no less favorable than those applicable to the Executive immediately prior
to
the Effective Date.
(6) Fringe
Benefits. During the Employment Period, the Executive shall be
entitled to fringe benefits which are comparable in the aggregate to those
provided generally at any time after the Effective Date to other senior
executives of the Company; provided, that such benefits shall be at least
comparable to those provided to the Executive immediately before the Effective
Date.
(7) Office
and Support Staff. During the Employment Period, the Executive shall
be entitled to an office or offices of a size and with furnishings and other
appointments, and to exclusive personal secretarial and other assistance, at
least equal to the most favorable of the foregoing provided generally at any
time after the Effective Date with respect to other senior executives of the
Company; provided, that such benefits shall be at least comparable to those
provided to the Executive immediately before the Effective Date.
(8) Vacation. During
the Employment Period, the Executive shall be entitled to paid vacation in
accordance with the most favorable plans, policies, programs and practices
of
the Company and the Affiliated Companies as in effect generally at any time
after the Effective Date with respect to other senior executives of the Company;
provided, that in no event shall the terms governing the Executive’s vacation
entitlement be less favorable to the Executive than those in effect immediately
prior to the Effective Date.
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Section
4. Termination of Employment. (a) Death or
Disability. The Executive’s employment shall terminate automatically
if the Executive dies during the Employment Period. If the Company
determines in good faith that the Disability (as defined herein) of the
Executive has occurred during the Employment Period (pursuant to the definition
of “Disability”), it may give to the Executive written notice in accordance with
Section 11(b) of its intention to terminate the Executive’s
employment. In such event, the Executive’s employment with the
Company shall terminate effective on the 30th day after receipt of such notice
by the Executive (the “Disability Effective Date”), provided, that within the 30
days after such receipt, the Executive shall not have returned to full-time
performance of the Executive’s duties. “Disability” means the absence
of the Executive from the Executive’s duties with the Company on a full-time
basis for 180 consecutive business days as a result of incapacity due to mental
or physical illness that is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Executive or
the
Executive’s legal representative.
(b) By
the Company Without Cause or For Cause. The Company may terminate the
Executive’s employment during the Employment Period for Cause or without
Cause. “Cause” means:
(1) the
willful and continued failure of the Executive to perform substantially the
Executive’s duties hereunder (as contemplated by Section 3(a)(1)(A)) (other than
any such failure resulting from incapacity due to physical or mental illness
or
following the Executive’s delivery of a Notice of Termination for Good Reason),
after a written demand for substantial performance is delivered to the Executive
by the Board or the Chief Executive Officer of the Company that specifically
identifies the manner in which the Board or the Chief Executive Officer of
the
Company believes that the Executive has not substantially performed the
Executive’s duties; or
(2) the
willful engaging by the Executive in illegal conduct or gross misconduct that
is
materially and demonstrably injurious to the Company.
For
purposes of this Section 4(b), no act, or failure to act, on the part of the
Executive shall be considered “willful” unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive’s action or omission was in the best interests of the
Company. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or upon the instructions
of
the Chief Executive Officer of the Company or based upon the advice of counsel
for the Company shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests of the
Company. The cessation of employment of the Executive shall not be
deemed to be for Cause unless and until there shall have been delivered to
the
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than three-quarters of the entire membership of the Board (excluding the
Executive, if the Executive is a member of the Board) at a meeting of the Board
called and held for such purpose (after reasonable notice is provided to the
Executive and the Executive is given an opportunity, together with counsel
for
the Executive, to be heard before the Board), finding that, in the good faith
opinion of the Board, the Executive is guilty of the conduct described in
Section 4(b)(1) or 4(b)(2), and specifying the particulars thereof in
detail.
(c) Good
Reason. The Executive’s employment may be terminated by the Executive
for Good Reason or by the Executive voluntarily without Good
Reason. “Good Reason” means:
(1) the
assignment to the Executive of any duties inconsistent in any respect with
the
Executive’s position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
3(a), or any other diminution in such position, authority, duties or
responsibilities (including without limitation as a result of the Company’s
ceasing to be a publicly traded entity as a result of a Change of Control),
excluding for this purpose an isolated, insubstantial and inadvertent action
not
taken in bad faith and that is remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(2) any
failure by the Company to comply with any of the terms of this Agreement,
excluding for this purpose an isolated, insubstantial and inadvertent failure
not occurring in bad faith and that is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(3) any
purported termination by the Company of the Executive’s employment otherwise
than as expressly permitted by this Agreement; or
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(4) any
failure by the Company to comply with and satisfy Section 10(c).
The
Executive’s mental or physical incapacity following the occurrence of an event
described above in clauses (1) through (4) shall not affect the Executive’s
ability to terminate employment for Good Reason.
(d) Notice
of Termination. Any termination by the Company without Cause or for
Cause, or by the Executive without Good Reason or for Good Reason, shall be
communicated by Notice of Termination to the other party hereto given in
accordance with Section 11(b). “Notice of Termination” means a
written notice that (1) indicates the specific termination provision in this
Agreement relied upon, (2) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of
the Executive’s employment under the provision so indicated, and (3) if the Date
of Termination (as defined herein) is other than the date of receipt of such
notice, specifies the Date of Termination (which Date of Termination shall
be
not more than 30 days after the giving of such notice, except as provided in
clause (3) of Section 4(e) below). The failure by the Executive or
the Company to set forth in the Notice of Termination any fact or circumstance
that contributes to a showing of Good Reason or Cause shall not waive any right
of the Executive or the Company, respectively, hereunder or preclude the
Executive or the Company, respectively, from asserting such fact or circumstance
in enforcing the Executive’s or the Company’s respective rights
hereunder.
(e) Date
of Termination. “Date of Termination” means (1) if the Executive’s
employment is terminated by reason of the Executive’s death, the date of death,
(2) if the Executive’s employment is terminated by reason of Disability, the
Disability Effective Date, and (3) if the Executive’s employment is terminated
under other circumstances, the date the Notice of Termination is given or any
later date specified in the Notice of Termination (which date shall not be
more
than 30 days after the giving of such notice).
(f) Effect
of Expiration of Employment Period. Section 5 below shall not be
applicable to the termination of the Executive’s employment upon or after the
expiration of the Employment Period in accordance with Section 2 above as a
result of the Executive’s attainment of age 65.
Section
5. Obligations of the Company upon Termination during the Employment
Period. (a) Good Reason; Other Than for Cause, Death or
Disability. If, during the Employment Period, the Company terminates
the Executive’s employment other than for Cause or Disability or the Executive
terminates employment for Good Reason:
(1) the
Company shall pay to the Executive, in a lump sum in cash within 30 days after
the Date of Termination, the aggregate of the following amounts:
(A) the
sum of (i) the Executive’s Base Salary through the Date of Termination to the
extent not theretofore paid, (ii) the product of (x) the average of the Annual
Bonuses earned by the Executive for each of the last three full fiscal years
prior to the Date of Termination (the “Average Annual Bonus”) and (y) a
fraction, the numerator of which is the number of days in the current fiscal
year through the Date of Termination and the denominator of which is 365, and
(iii) any accrued vacation pay, in each case, to the extent not theretofore
paid
(the sum of the amounts described in subclauses (i), (ii) and (iii), the
“Accrued Obligations”); and
(B) the
amount equal to the product of (i) two and (ii) the sum of (x) the annual rate
of the Base Salary, and (y) the Average Annual Bonus;
(2) for
two years after the Executive’s Date of Termination, or such longer period as
may be provided by the terms of the appropriate plan, program, practice or
policy, the Company shall continue benefits to the Executive and/or the
Executive’s family at least equal to those that would have been provided to them
in accordance with the plans, programs, practices and policies described in
Section 3(b)(4) if the Executive’s employment had not been terminated, provided,
that, if the Executive becomes reemployed with another employer and is eligible
to receive such benefits under another employer provided plan, the medical
and
other welfare benefits described herein shall be secondary to those provided
under such other plan during such applicable period of eligibility;
and
(3) to
the extent not theretofore paid or provided, the Company shall timely pay or
provide to the Executive any amounts that are vested benefits or that the
Executive is otherwise entitled to receive under any plan, policy, practice
or
program of or any other contract or agreement with the Company or the Affiliated
Companies at or subsequent to the Date of Termination (“Other Benefits”) in
accordance with such plan, policy, practice or program or contract or
agreement.
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Notwithstanding
the foregoing provisions of this Section 5(a), to the extent required in order
to comply with Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), amounts and benefits to be paid or provided under this Section
5(a) shall be paid (with interest on any delayed payment at the applicable
federal rate provided for in Section 7872(f)(2)(A) of the Code) or provided
to
the Executive on the first business day after the date that is six months
following the Date of Termination.
(b) Other
Terminations. If the Executive’s employment is terminated by the
Company during the Employment Period for any reason other than those set forth
in Section 5(a), the Company shall pay the Executive any unpaid Base Salary
through the Date of Termination within 30 days of the Date of Termination,
shall
timely pay or provide any Other Benefits, and shall have no severance
obligations under this Agreement.
Section
6. Coordination with Other Severance Arrangements. If the Executive
receives payments and benefits pursuant to Section 5(a) of this Agreement,
the
Executive shall not be entitled to any severance pay or benefits under any
severance plan, program or policy of the Company and the Affiliated Companies,
unless otherwise specifically provided therein in a specific reference to this
Agreement.
Section
7. Full Settlement. The Company’s obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense, or other claim, right or action that the Company may have against
the
Executive or others. In no event shall the Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement,
and such amounts shall not be reduced whether or not the Executive obtains
other
employment.
Section
8. Reduction of Payments under Certain
Circumstances. (a) Anything in this Agreement to the
contrary notwithstanding, in the event that a nationally recognized accounting
firm designated by the Company (the “Accounting Firm”) shall determine that
receipt of all payments, benefits or distributions by the Affiliated Companies
in the nature of compensation to or for the Executive’s benefit, whether paid or
payable pursuant to this Agreement or otherwise (a “Payment”) would subject the
Executive to the excise tax under Section 4999 of the Code, the Accounting
Firm
shall determine whether to reduce any of the Payments paid or payable pursuant
to this Agreement that are taxable in the year in which the change in ownership
or control occurs (the “Agreement Payments”) to the Reduced Amount (as defined
below). The Agreement Payments shall be reduced to the Reduced Amount
only if the Accounting Firm determines that the Executive would have a greater
Net After-Tax Receipt (as defined below) of aggregate Payments if the
Executive’s Agreement Payments were reduced to the Reduced Amount. If
such a determination is not made by the Accounting Firm, the Executive shall
receive all Agreement Payments to which the Executive is entitled under this
Agreement.
(b) If
the Accounting Firm determines that aggregate Agreement Payments should be
reduced to the Reduced Amount, the Company shall promptly give the Executive
notice to that effect and a copy of the detailed calculation thereof, and the
Executive may then elect, in the Executive’s sole discretion, which and how much
of the Agreement Payments shall be eliminated or reduced (as long as after
such
election the present value (determined in accordance with Sections
280G(b)(2)(A)(ii) and 280G(d)(4) of Code) of the aggregate Agreement Payments
equals the Reduced Amount), and shall advise the Company in writing of the
Executive’s election within ten days of the Executive’s receipt of
notice. If no such election is made by the Executive within such ten
day period, the Company may elect which of such Agreement Payments shall be
eliminated or reduced (as long as after such election the present value of
the
aggregate Agreement Payments equals the Reduced Amount) and shall notify the
Executive promptly of such election. All determinations made by the
Accounting Firm under this Section 8 shall be binding upon the Company and
the
Executive and shall be made within 60 days of a termination of the Executive’s
employment. As promptly as practicable following such determination,
the Company shall pay to or distribute for the Executive’s benefit such
Agreement Payments as are then due to the Executive under this Agreement and
shall promptly pay to or distribute for the Executive’s benefit in the future
such Agreement Payments as become due to the Executive under this
Agreement. All fees and expenses of the Accounting Firm shall be
borne solely by the Company.
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(c) As
a result of the uncertainty in the application of Sections 280G and 4999 of
the
Code at the time of the initial determination by the Accounting Firm hereunder,
it is possible that amounts will have been paid or distributed by the Company
to
or for the benefit of the Executive pursuant to this Agreement which should
not
have been so paid or distributed (“Overpayment”) or that additional amounts
which will have not been paid or distributed by the Company to or for the
benefit of the Executive pursuant to this Agreement could have been so paid
or
distributed (“Underpayment”), in each case, consistent with the calculation of
the Reduced Amount hereunder. In the event that the Accounting Firm,
based upon the assertion of a deficiency by the Internal Revenue Service against
either the Company or the Executive which the Accounting Firm believes has
a
high probability of success determines that an Overpayment has been made, the
Executive shall pay any such Overpayment to the Company together with interest
at the applicable federal rate provided for in Section 7872(f)(2) of the
Code. In the event that the Accounting Firm, based upon controlling
precedent or substantial authority, determines that an Underpayment has
occurred, any such Underpayment shall be promptly paid by the Company to or
for
the benefit of the Executive together with interest at the applicable federal
rate provided for in Section 7872(f)(2) of the Code.
(d) For
purposes hereof, the following terms have the following meanings: (i) “Reduced
Amount” shall mean the greatest amount of Agreement Payments that can be paid
that would not result in the imposition of the excise tax under Section 4999
of
the Code if the Accounting Firm determines to reduce Agreement Payments pursuant
to Section 8(a), and (ii) “Net After-Tax Receipt” shall mean the present value
(as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4)
of
the Code) of a Payment net of all taxes imposed on the Executive with respect
thereto under Sections 1 and 4999 of the Code and under applicable state and
local laws, determined by applying the highest marginal rate under Section
1 of
the Code and under state and local laws which applied to the Executive’s taxable
income for the immediately preceding taxable year, or such other rate(s) as
the
Executive certifies, in the Executive’s sole discretion, as likely to apply to
him in the relevant tax year(s).
Section
9. Confidentiality. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or the Affiliated Companies, and
their
respective businesses, which information, knowledge or data shall have been
obtained by the Executive during the Executive’s employment by the Company or
the Affiliated Companies and which information, knowledge or data shall not
be
or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this
Agreement). After termination of the Executive’s employment with the
Company, the Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process, communicate
or
divulge any such information, knowledge or data to anyone other than the Company
and those persons designated by the Company. In no event shall an
asserted violation of the provisions of this Section 9 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive under
this Agreement.
Section
10. Successors. (a) This Agreement is personal to the
Executive, and, without the prior written consent of the Company, shall not
be
assignable by the Executive other than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s legal representatives.
(b) This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors and assigns. Except as provided in Section 10(c), without
the prior written consent of the Executive this Agreement shall not be
assignable by the Company.
(c) The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be
required to perform it if no such succession had taken
place. “Company” means the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid that assumes and agrees
to
perform this Agreement by operation of law or otherwise.
Section
11. Miscellaneous. (a) This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without reference to principles of conflict of
laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect.
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This
Agreement may not be amended or modified other than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) 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: At the home address for the
Executive then shown in the Company’s records
if
to the
Company:
000
Xxxxxxxx Xxxx Xxxx
Xxxxxxx,
XX 00000
Attention: General
Counsel
or
to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
(d) The
Company may withhold from any amounts payable under this Agreement such United
States federal, state or local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The
Executive’s or the Company’s failure to insist upon strict compliance with any
provision of this Agreement or the failure to assert any right the Executive
or
the Company may have hereunder, including, without limitation, the right of
the
Executive to terminate employment for Good Reason pursuant to Sections 4(c)(1)
through 4(c)(4), shall not be deemed to be a waiver of such provision or right
or any other provision or right of this Agreement.
(f) If
any compensation or benefits provided by this Agreement may result in the
application of Section 409A of the Code, the Company shall, in consultation
with
the Executive, modify the Agreement in the least restrictive manner necessary
in
order to exclude such compensation from the definition of “deferred
compensation” within the meaning of such Section 409A or in order to otherwise
comply with the provisions of Section 409A, other applicable provisions of
the
Code and/or any rules, regulations or other regulatory guidance issued under
such statutory provisions and without any diminution in the value of the
payments to the Executive.
IN
WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and,
pursuant to the authorization from the Board, the Company has caused these
presents to be executed in its name on its behalf, all as of the day and year
first above written.
JOURNAL
REGISTER COMPANY
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By:
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Name:
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Title:
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