Exhibit 10.26.3
EMPLOYMENT AGREEMENT, dated effective as of September 1, 2001, between
XXXXXXX RADIO CORP., a Delaware corporation (the "Company"), and XXXXXXX X.
XXXXX ("Executive")
In light of the state of the present state of the Company's business
and the need for the Company to have the Executive continue to perform his job
functions, the Executive is willing to continue to serve as Executive Vice
President - Finance and Chief Financial Officer of the Company, and the Company
desires to retain the Executive in such capacities, on the terms and conditions
herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company and the Executive hereby agree as follows:
1. EMPLOYMENT.
(a) The Company agrees to employ the Executive and the Executive
agrees to be employed by and serve the Company upon the terms and conditions
hereinafter provided for a period commencing effective as of September 1, 2001
and continuing until August 31, 2004 (the "Term"). As used in this Agreement,
the term "Company" shall be deemed to include any and all present and future
subsidiaries and affiliates of the Company. The Executive hereby represents and
warrants that he has the legal capacity to execute and perform this Agreement,
that it is a valid and binding agreement against him according to its terms, and
that its execution and performance by him does not violate the terms of any
existing agreement or understanding to which the Executive is a party. In
addition, the Executive represents and warrants that he knows of no reason why
he is not physically capable of performing his obligations under this Agreement
in accordance with its terms.
2. POSITION AND DUTIES.
During the Term, the Executive agrees to serve as Executive Vice
President - Finance and Chief Financial Officer of the Company, and will have
such powers and duties as are commensurate with such positions and as may be
conferred upon or delegated to him by the Board of Directors (the "Board") of
the Company, the Chairman or the Chief Executive Officer. The Executive shall
report directly to the Chief Executive Officer unless otherwise directed by the
Board. In addition, the Executive agrees to serve from time to time in such
other positions with the Company or its subsidiaries or affiliates as may be
specified by the Board, the Chairman or the Chief Executive Officer of the
Company and thereafter approved by the board of directors of the applicable
entity. During the Term, and except for illness or incapacity, the Executive
shall devote such business time, attention, skill and efforts as necessary for
the business and affairs of the Company and its subsidiaries and affiliates and
the promotion of their interests and shall not take part in activities
detrimental to the best interests of the Company.
3. COMPENSATION
For all services rendered by the Executive in any capacity required
hereunder during the Term, including, without limitation, services as an
executive, officer, director, or member of any committee of the Company, or any
subsidiary, affiliate or division thereof, the Executive shall be compensated as
follows:
(a) Base Salary. The Company shall pay the Executive an initial salary
of $230,000 per annum or such higher annual amount as is being paid from time to
time pursuant to the terms hereof ("Base Salary"). The Base Salary shall be
reviewed from time to time and subject to such periodic increases as the Board
of Directors shall deem appropriate in accordance with the Company's customary
procedures and practices regarding the salaries of senior officers. Base Salary
shall be payable in accordance with the customary payroll practices of the
Company, but in no event less frequently than monthly.
(b) Bonus. The Executive may also receive an annual performance bonus
to be recommended by the Compensation and Personnel Committee of the Board and
to be established and payable from time to time at the sole discretion of the
Board.
(c) Additional Benefits. Except as modified by this Agreement, the
Executive shall be entitled to participate in all compensation or employee
benefit plans or programs, and to receive all benefits, perquisites and
emoluments, for which any salaried employees of the Company are eligible under
any plan or program now or hereafter established and maintained by the Company
for senior officers, to the fullest extent permissible under the general terms
and provisions of such plans or programs and in accordance with the provisions
thereof, including group hospitalization, health, dental-care, life or other
insurance, tax-qualified pension, savings, thrift and profit-sharing plans,
termination pay programs, sick-leave plans, travel or accident insurance,
disability insurance, director and officer liability insurance, automobile
allowance or automobile lease plans, and executive contingent compensation
plans, including, without limitation, capital accumulation programs and stock
purchase, restricted stock and stock option plans. Notwithstanding the
foregoing, nothing in this Agreement shall preclude the amendment or termination
of any such plan or program, provided that such amendment or termination is
applicable generally to the senior officers of the Company or any subsidiary or
affiliate.
(d) Perquisites. The Company also will furnish the Executive, without
cost to him, excluding any associated tax liability, with perquisites consistent
with those afforded other senior executives holding positions with the Company
comparable to the position held by the Executive, including the following:
(i) reimbursement of all out-of-pocket expenses incurred in the
discharge of the Executive's duties pursuant to this Agreement; and
(ii) five weeks paid vacation per year.
4. BUSINESS EXPENSES.
The Company shall pay or reimburse the Executive for all reasonable
travel or other expenses incurred by the Executive in connection with the
performance of his duties and obligations under this Agreement, subject to the
Executive's presentation of appropriate vouchers in accordance with such
procedures as the Company may from time to time establish for senior officers
and to preserve any deductions for federal income taxation purposes to which the
Company may be entitled. The Company shall pay all fees and expenses related to
the maintenance or retention of professional certifications and licenses,
including, without limitation, satisfaction of continuing professional education
requirements.
5. EFFECT OF TERMINATION OF EMPLOYMENT.
(a) Certain Terminations. In the event the Executive's employment
hereunder terminates due to either Permanent Disability, a Without Cause
Termination or a Constructive Discharge, the Company shall, as liquidated
damages or severance pay, or both, continue, subject to the provisions of
Section 6 below, to pay the Executive's Base Salary as in effect at the time of
such termination as such payments would otherwise become due and payable until
the expiration of the Term (the "Severance Period") and the other benefits and
qualified stock options provided hereunder shall continue to vest pursuant to
the terms hereof during the Severance Period, provided, that in the case of
Permanent Disability, such payments shall be offset by any amounts otherwise
paid to the Executive under the Company's disability program generally available
to other employees. In addition, earned but unpaid Base Salary as of the date of
termination of employment shall be payable in full. Group hospitalization,
health, dental care, life or other insurance, travel or accident insurance and
disability insurance shall continue through the end of the Severance Period.
(b) Other Terminations. In the event that the Executive's employment
hereunder terminates due to a Termination for Cause or the Executive
unilaterally xxxxxx the employment relationship or terminates employment with
the Company for reason other than a Constructive Discharge or Permanent
Disability, earned but unpaid Base Salary as of the date of termination of
employment shall be payable in full. However, no other payments of any nature
whatsoever, including unearned Base Salary, shall be made, or benefits provided,
by the Company under this Agreement except benefits vested and payable under any
retirement plan and benefits that have already become vested under the terms of
employee benefit programs maintained by the Company or its affiliates for its
employees.
(c) Definitions. For purposes of this Agreement, the following terms
have the following meanings:
(i) The term "Termination for Cause" means, to the maximum extent
permitted by applicable law, (x) a termination of the Executive's employment by
the Company because the Executive has breached or failed to perform his duties
under this Agreement, applicable law or the by-laws of the Company, including
the unreasonable neglect or refusal to perform duties assigned by the Board or
Executive Committee, (y) abuse of office or malfeasance by Executive, or (z)
conviction of the Executive of a felony which the Board reasonably deems to be
an "abuse of office" or a crime of moral turpitude. (ii) The term "Constructive
Discharge" means a termination of the Executive's employment by the Executive
due to a failure of the Company or its successors without the prior consent of
the Executive to fulfill the obligations under this Agreement in any material
respect. (iii) The term "Without Cause Termination" means termination of the
Executive's employment by the Company, upon 30 days written notice to the
Executive, other than due to (v) Permanent Disability, (x) retirement, (y)
expiration of the Term, or (z) Termination for Cause. (iv) The term "Permanent
Disability" means the inability of the Executive, as determined by the Board and
confirmed by competent medical evidence, to work for a period of three
continuous full calendar months or 90 non-consecutive days during any
twenty-four consecutive calendar months due to illness or injury of a physical
or mental nature. To determine issues of disability, the Executive agrees to
submit himself for appropriate medical examination to physicians reasonably
acceptable to the Company and the Executive.
6. OTHER DUTIES OF EXECUTIVE DURING AND AFTER TERM.
(a) Confidentiality and Non-Disclosure Policy/Non-Solicitation Policy/
Inventions Policy. Executive shall execute and deliver to the Company the
Confidentiality and Non-Disclosure Policy, Non-Solicitation Policy and
Inventions Policy, copies of which are attached as Exhibits A, B and C and the
terms of which are incorporated herein as if fully set forth.
(b) Remedies. The Company's obligation to make payments, deliver
shares of stock or provide for any benefits under this Agreement (except to the
extent vested or exercisable) shall cease upon a violation of the preceding
provision of this section. The Executive's agreement as set forth in this
Section 6 shall survive the Executive's termination of employment with the
Company.
7. WITHHOLDING TAXES.
The Company may directly or indirectly withhold from any payments made
under this Agreement all Federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
8. CONSOLIDATION, MERGER, OR SALE OF ASSETS.
Nothing in this Agreement shall preclude the Company or its
subsidiaries or affiliates from consolidation or merging into or with, or
transferring all or substantially all their or its assets, to, another
corporation which assumes this Agreement and all obligations and undertakings of
the Company hereunder. Upon such a consolidation, merger or transfer of assets
the term "Company" as used herein shall mean such other corporation and this
Agreement shall continue in full force and effect.
9. NOTICES.
All notices, requests, demands and other communications required or
permitted hereunder shall be given in writing and shall be deemed to have been
duly given if delivered or mailed, postage prepaid, by same day or overnight
mail as follows:
(a) To the Company:
Xxxxxxx Radio Corp.
0 Xxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Chief Executive Officer
(b) To the Executive:
Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xx. X
Xxxxxx Xxxxx, Xxxxx 00000
or such other address as either party shall have previously specified in writing
to the other.
10. RIGHTS TO PAYMENTS.
Executive shall not under any circumstances have any option or right
to require payments hereunder otherwise than in accordance with the terms of
this Agreement. Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, hypothecation or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect; provided, however, that nothing in this Section 10 shall
preclude the assumption of such rights by executors, administrators or other
legal representatives of the Executive or his estate and their assigning any
rights hereunder to the person or persons entitled thereto.
11. SOURCE OF PAYMENT.
All payments provided for under this Agreement shall be paid in cash
from the general funds of the Company. The Company shall not be required to
establish a special or separate fund or other segregation of assets to assure
such payments, and, if the Company shall make any investments to aid it in
meeting its obligations hereunder, the Executive shall have no right, title or
interest whatever in or to any such investments except as may otherwise be
expressly provided in a separate written instrument relating to such
investments. Nothing contained in this Agreement, and no action taken pursuant
to its provisions, shall create or be construed to create a trust of any kind,
or a fiduciary relationship, between the Company and the Executive or any other
person. To the extent that any person acquires a right to receive payments from
the Company hereunder, such right, without prejudice to rights which employees
may have, shall be no greater than the right of an unsecured creditor of the
Company.
12. BINDING AGREEMENT.
Expect as otherwise expressly provided herein, this Agreement shall be
binding upon, and shall inure to the benefit of, the Company, its successors and
assigns. This Agreement, as it relates to the Executive, is a personal contract
and the rights and interests of the Executive hereunder may not be sold,
transferred, assigned, pledged or hypothecated except as expressly provided
herein.
13. GOVERNING LAW AND JURISDICTION
The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by the laws of the State of New Jersey. All disputes
between the parties concerning this Agreement will be resolved under the laws of
the State of New Jersey, U.S.A., excluding the conflicts of laws provisions
thereof, in the English language, and the courts of New Jersey will have sole
and exclusive jurisdiction over the parties in any such dispute and venue shall
lie exclusively in Xxxxxx County, New Jersey. However, it is expressly
understood that this Section shall not preclude the Company's right to make
application for, and seek enforcement of, injunctive relief in any court having
jurisdiction. Executive acknowledges that there is no adequate remedy at law for
a breach of this Agreement, or any warranty, representation or covenant set
forth, and monetary damages would not be a sufficient remedy. Accordingly, the
Company shall be entitled to any equitable remedies available including, but not
limited to, an immediate temporary restraining order and/or preliminary
injunction, without bond or security, and such other further relief as any court
with jurisdiction may deem just and proper.
14. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which when executed shall be deemed to be an original and all of which together
shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Executive has signed this
Agreement, all as of the first date above written.
XXXXXXX RADIO CORP.
By: /s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Chairman, Chief Executive Officer and
President
EXECUTIVE
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
