EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of September,
1995 between Xxx Radio and Television, Inc. (the "Corporation"),
and Xxxxxxxx Xxxxxxx (the "Employee").
Recitals
A. The Corporation and Employee entered into an
Employment Agreement dated January 1, 1994, of which the
Corporation and the Employee now desire to agree to
substantially the same terms and to cause Employee's
continued employment with the Corporation.
B. Employee desires to accept such employment on
the basis of the mutual benefits and covenants contained
herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties agree as follows:
ARTICLE I - DUTIES OF EMPLOYEE
1.1 Duties of Employee. Employee shall be employed as
President and Chief Operating Officer of the Corporation, for the
period set forth in Article II below. Employee shall be subject to
the supervision of the Board of Directors of the Corporation, and
shall perform those executive, operational and administrative
duties normally performed by the President and Chief Operating
Officer of a corporation.
1.2 Engaging in Other Employment. Employee shall devote a
substantial portion of his business time, energies, attention and
abilities to the business of the Corporation; provided, however,
that Employee shall not be prohibited from: (i) making investments
in other businesses; and (ii) actively participating in the
operation of any business within which he has invested.
1.3 Additional Duties. In addition to the foregoing duties,
Employee shall perform such other work as may be assigned to him
from time to time subject to the instructions, directions and
control of the Board of Directors.
ARTICLE II - TERM OF EMPLOYMENT
2.1 Term. The Corporation shall employ Employee commencing
as of the 1st day of January, 1997, and continuing for a period of
three (3) years through December 31, 1999 (the "Employment Period")
and any renewal period provided for in Section 2.2 below unless
earlier terminated by Employee's: (i) resignation; (ii) death;
(iii) total disability; or (iv) termination of employment, as
provided in Article VI. "Total disability" shall mean such
disability as shall render Employee incapable of performing
substantially all of his duties for the Corporation as determined
by any two qualified physicians chosen by the Corporation.
2.2 Renewal Term. The terms and conditions of this Employ-
ment Agreement shall automatically renew, without any further
action by either party required, upon the expiration of the
Employment Period and any period of renewal for subsequent one (1)
year periods unless (i) notice of termination is provided to the
other party at least 180 days prior to the expiration of the
Employment Period or any period of renewal or (ii) this Employment
Agreement is otherwise terminated pursuant to Article VI.
ARTICLE III - COMPENSATION AND EXPENSES
3.1 Compensation. Employee shall receive as compensation for
services rendered under this Agreement a base salary of One Hundred
Fifty Four Thousand Five Hundred Dollars ($154,500.00) per year,
payable in equal monthly installments of Twelve Thousand Eight
Hundred Seventy Five Dollars ($12,875.00) per month on the last
working day of each month (or such more frequent dates as the
Corporation may choose), and prorated for any partial monthly
period.
3.2 Expenses. Employee is authorized to incur reasonable
expenses in connection with the performance of his duties for the
Corporation, including expenses for entertainment of customers,
travel, and similar business purposes. The Corporation will
reimburse Employee for all such expenses upon the presentation of
an itemized account of such expenditures and approval of the
expenditures by a designated officer. In incurring reasonable
business expenses, Employee shall conform to the policies of the
Corporation as adopted by the Board of Directors from time to time.
ARTICLE IV - EMPLOYEE BENEFITS AND BONUSES
4.1 Employee Benefit Plans. Employee shall be entitled to
participate in any qualified pension plan, qualified profit-sharing
plan, medical and dental reimbursement plan, group term life
insurance plan, and any other employee benefit plan which may be
established by the Corporation, such participation to be in
accordance with the terms of any such plan.
4.2 Bonus. In addition to Employee's salary as provided in
Section 3.1, Employee may be paid a cash bonus as determined in the
sole discretion of the Board of Directors of the Corporation, any
such bonus to be commensurate with the effort and achievement of
Employee on behalf of the Corporation.
4.3 Vacation. Employee shall be entitled to eight (8) weeks
of vacation during each 12-month period of the Employment Period or
any period of renewal at full pay; provided, however, that no
portion of a vacation not taken in any 12-month period may be taken
in any other 12-month period. The time for such vacation shall be
selected by Employee. Employee shall not be entitled to vacation
pay in lieu of vacation.
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ARTICLE V - NONDISCLOSURE AND NONCOMPETITION
5.1 Confidential Information. Employee agrees to keep secret
and confidential the Confidential Information (as defined below)
and shall not use or disclose said information, either during or
after his employment with the Corporation, for any purpose not
authorized by the Corporation. Upon termination of his employment
with the Corporation, Employee shall leave with the Corporation all
records, including all copies thereof, containing any Confidential
Information, including, but not limited to, such documents as memo-
xxxxx, notes, records, reports, customer lists, manuals, drawings,
blueprints and maps. "Confidential Information" means information
about the Corporation and any of its subsidiaries which is dis-
closed to Employee or known by him as a consequence of or through
his work with or on behalf of the Corporation (including informa-
tion conceived, originated, discovered, or developed by him) not
generally known about the Corporation, including, but not limited
to, matters of a technical nature, such as "know-how," innovations,
research projects, methods, and matters of a business nature, such
as information about costs, profits, markets, sales, lists of cus-
tomers, suppliers, business processes, computer programs, account-
ing methods, information systems, business or marketing financial
plans and reports, and any other information of a similar nature.
5.2 Restrictions on Competition. During the term of this
Agreement and for a period of two years after termination, for any
reason, of Employee's employment with the Corporation, Employee
shall not directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder, corporate
officer, director, or in any other individual or representative
capacity, engage or participate in any business that is (i) in
competition in any manner whatsoever with the business of the Cor-
poration within 100 miles of any store operated by the Corporation
or its subsidiaries at the time of Employee's termination; or (ii)
the owner or operator of a retail business similar to that of the
Corporation within 100 miles of any store operated by the Corpo-
ration or its subsidiaries at the time of Employee's termination.
5.3 Saving. In the event any provision of this Article V
shall be held invalid, illegal, or unenforceable, the remaining
provisions shall in no way be affected thereby, and shall continue
in full force and effect. If, moreover, any one or more of the
provisions contained in this Article V shall for any reason be held
to be excessively broad as to time, duration, geographical scope,
activity or subject, it shall be construed, by limiting and
reducing it, so as to be enforceable to the extent compatible with
the applicable law as it shall then appear.
ARTICLE VI - TERMINATION
6.1 Termination of Employment with Cause. The Corporation
may at any time terminate Employee's employment with cause. Such
termination of employment with cause shall not prejudice any other
remedy to which the Corporation may be entitled either at law, in
equity, or under this Agreement. "Termination of employment with
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cause" shall mean termination upon: (i) Employee's repeated
failure or refusal to perform his duties hereunder faithfully,
diligently, competently and to the best of his ability for reasons
other than serious disability or other incapacity; (ii) Employee's
violation of any material provision of this Agreement; or (iii)
Employee's clear and intentional violation of a state or federal
law of which he is aware or should have been aware: (a) involving
the commission of a felonious crime against the Corporation which
has a materially adverse effect upon the Corporation; or (b)
involving a felony other than against the Corporation having a
materially adverse effect upon the Corporation, as determined in
either case in the reasonable judgment of the Board of Directors.
6.2 Termination by Either Party. This Agreement may be
terminated by either party with or without cause upon 180 days
notice.
6.3 Effect of Termination on Compensation. In the event this
Agreement is terminated prior to the completion of the Employment
Period or any period of renewal, Employee shall be entitled to the
compensation earned by him prior to the date of termination as
provided for in this Agreement computed pro rata up to and
including that date; Employee shall be entitled to no further
compensation as of the date of termination.
6.4 Effect of Termination on Bonus Plans. In the event of
the termination of this Agreement prior to the completion of the
Employment Period or any period of renewal, Employee shall
automatically and completely forfeit any rights which he may have
under any bonus plan established by the Corporation.
ARTICLE VII - WAIVER OF BREACH
7.1 Effect of Waiver. Waiver by the Corporation of any
condition, or of the breach of Employee of any term or covenant
contained in this Agreement, whether by conduct or otherwise, in
any one or more instances shall not be deemed to be or construed as
a further or continuing waiver of any such condition or to be a
waiver either of any other condition or of the breach of any other
term or covenant of this Agreement. The failure of the Corporation
at any time or times to require performance of any provision hereof
shall in no manner affect its rights at a later time to require the
same.
ARTICLE VIII - MISCELLANEOUS
8.1 Notices. All notices and other communications by any
party hereto shall be made in writing to the other party and shall
be deemed to have been duly given when mailed by United States
certified mail, with postage prepaid, addressed as the parties
hereto may designate from time to time in writing.
8.2 Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties
hereto with respect to the employment of Employee by the
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Corporation, and contains all of the covenants and agreements
between the parties with respect to such employment in any manner
whatsoever.
8.3 Assignability. Neither this Agreement, nor any duties or
obligations hereunder shall be assignable by Employee without the
prior written consent of the Board of Directors of the Corporation.
8.4 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, successors and assigns.
8.5 Captions. The captions in this Agreement are inserted
for convenience only and shall not be considered part of or affect
the construction or interpretation of any provision of this
Agreement.
8.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first set forth above.
XXX RADIO AND TELEVISION, INC.
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Secretary
EMPLOYEE:
Xxxxxxxx Xxxxxxx
XXXXXXXX XXXXXXX
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