EMPLOYMENT AGREEMENT
Exhibit 10.4
THIS EMPLOYMENT AGREEMENT (this “Agreement”), effective as of April 1, 2007 (the “Effective
Date”), is between Xxxxx Media Company, a Delaware corporation (the “Company”), and Xxxx X.X.
Xxxxxxx (“Executive”).
PRELIMINARY RECITALS
The Company currently employs Executive as its Executive Vice President/Business Information
Division.
The Company desires to continue to employ Executive and Executive desires to be employed by
the Company as the Executive Vice President/Business Information Division of the Company on the
terms and conditions contained herein.
AGREEMENT
In consideration of the premises, the mutual covenants of the parties hereinafter set forth
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
| 1. | Employment. |
1.1 Engagement of Executive. The Company agrees to employ Executive as the Executive
Vice President/Business Information Division of the Company and Executive accepts such employment
by the Company for a period of two (2) years beginning on the Effective Date and ending on March
31, 2009 (the “Employment Period”); provided, however, that, effective on April 1, 2008, the
Employment Period shall, on a daily basis, be automatically extended by one (1) day, such that at
any time, the remaining Employment Period shall be one (1) year; provided further that such
day-to-day extensions shall cease in the event either the Company or Executive, as the case may be,
provides written notice of such cessation to the other party and such cessation of the automatic
extensions shall be effective as of the date of delivery of such notice as determined pursuant to
Section 5.2 below. Notwithstanding anything to the contrary contained herein, the Employment Period
is subject to termination by the Company or Executive pursuant to Section 3 below.
1.2 Duties and Powers.
(a) Service with the Company. During the Employment Period, Executive shall (i) serve
as the Company’s Executive Vice President/Business Information Division and shall report directly
to the Chief Executive Officer and the Board of Directors of the Company (the “Board”), (ii) have
such responsibilities, duties and authorities, and render such services for the Company, that
Executive has or renders for the Company as of the Effective Date, and (iii) have such other
responsibilities, duties and authorities, and render such other services for the Company, that are
consistent with Executive’s position as Executive Vice President/Business Information Division, as
the Chief Executive Officer or the Board may from time to time reasonably direct.
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(b) Service with Subsidiaries and other Affiliates. During the Employment Period,
Executive shall (i) have such responsibilities, duties and authorities, and render such services
for the Company’s subsidiaries and other affiliates that (x) Executive renders for such
subsidiaries and other affiliates as of the Effective Date and (y) that are consistent with
Executive’s position as Executive Vice President/Business Information Division of the Company, as
the Board or the Chief Executive Officer may from time to time reasonably direct; and (ii) at the
reasonable request of the Board or Chief Executive Officer, serve as an officer or director of each
subsidiary or other affiliate of the Company; provided that Executive shall not be entitled
to any additional compensation for serving as an officer or director of the Company’s subsidiaries
and other affiliates.
(c) Performance of Duties. Executive will devote his best efforts, energies and
abilities and his full business time, skill and attention (except for permitted vacation periods
and reasonable periods of illness) to the business and affairs of the Company, its subsidiaries and
other affiliates and shall perform the duties and carry out the responsibilities assigned to him,
to the best of his ability and in a diligent, trustworthy, businesslike and efficient manner.
Executive acknowledges that his duties and responsibilities will require his full-time business
efforts and agrees that during the Employment Period he will not engage in any other business
activity or have any business pursuits or interests, except activities or interests which do not
conflict with the business of the Company, its subsidiaries and other affiliates and do not
interfere with the performance of Executive’s duties hereunder; provided that Executive
shall be permitted to (i) continue to serve on civic and charitable boards and committees (provided
that in March of each year hereunder, Executive furnishes the Board with a list of the civic and
charitable boards and committees that Executive is then serving on) and (ii) manage his personal
investments and affairs, in each case so long as the activities referred to in clauses (i) and (ii)
above otherwise comply with the terms and conditions of this Agreement, including the provisions of
this Section 1.2(c); provided further that Executive shall not, without the prior
written consent of the Board, be permitted to serve on any for profit entity’s board of directors
or committee or hold any similar position with respect to any such entity.
| 2. | Compensation. |
2.1 Base Salary. Beginning on January 1, 2007 and ending December 31, 2007, the
Company will pay Executive a base salary (“Base Salary”) at the annual rate of $225,000. For the
calendar year beginning January 1, 2008, and for each subsequent calendar year during the
Employment Period, the Company will pay Executive a Base Salary equal to the Base Salary for the
previous calendar year increased by the positive percentage change, if any, in the CPI (as defined
below) from the month of December from two (2) years prior to the month of December from the
previous year (e.g., the Base Salary effective for the 2008 calendar year will be equal to the Base
Salary from 2007 increased by an amount equal to the positive percentage change, if any, in the CPI
from the month of December in 2006 to the month of December in 2007). The Base Salary shall be
payable in regular installments in accordance with the Company’s general payroll practices for
salaried employees. For purposes hereof, “CPI,” for any month of December, means Consumer Price
Index for All Urban Consumers, U.S. City Average, all items, not seasonally adjusted, for such
month and compiled upon data (with the base 1982-84 equals 100) for such month (the “Index”). In
the event that publication or issuance of the Index is discontinued or suspended, the CPI shall be
an index published or issued by the United States
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Department of Labor or any bureau or agency thereof that computes information from substantially
the same statistical categories and substantially the same geographic areas as those computed in
the Index and that weights such categories in a substantially similar way to the weighting of the
Index at the Effective Date. In the event that the Index is calculated upon a base year other than
1982-84, such adjustments to the CPI for each calendar year shall be calculated as necessary to
ensure that the CPI for each such calendar year is based on the same Index. Executive’s Base
Salary shall be subject to annual review by the Compensation Committee of the Board (the
“Committee”) and may be further increased (but not decreased) from time to time as the Board
determines.
2.2 Annual Bonus. During the Employment Period, in addition to the Base Salary,
Executive shall be eligible to receive an annual performance-based cash bonus (“Annual Bonus”) with
respect to each fiscal year of the Company. The Annual Bonus shall be based upon quantitative and
qualitative performance targets. Those targets, as well as the Annual Bonus target amount, shall
be established by the Committee in its sole discretion in accordance with the Company’s annual
bonus plan.
2.3 Benefits. In addition to the Base Salary and Annual Bonus (if any) payable to
Executive hereunder, the Executive shall be entitled to four (4) weeks of paid vacation time per
year hereunder; club membership(s) as may be approved from time to time by the Committee; and all
other pension, welfare and fringe benefits and perquisites that are generally made available to
other senior executive officers of the Company (to the extent possible under applicable law) during
the Employment Period (the “Benefits”); provided that the Company does not guarantee the
adoption or continuance of any particular benefit plan or program or particular benefit.
2.4 Reimbursement of Expenses. The Company shall pay or reimburse Executive for
reasonable expenses incurred in the discharge of his duties hereunder, in accordance with the
Company’s executive expense reimbursement policy as in effect from time to time. Executive shall
provide the Company with such vouchers or receipts as the Company deems reasonably necessary to
verify the amount of such expenses. The Company shall pay the reasonable fees, expenses and
disbursements incurred by Executive in connection with the negotiation and preparation of this
Agreement; provided, however, that such amount shall be paid as soon as
administratively possible and in no event later than March 15, 2008.
2.5 Taxes, etc. All compensation payable to Executive hereunder is stated in gross
amount and shall be subject to all applicable withholding taxes, other normal payroll deductions
and any other amounts required by law to be withheld.
2.6 Legal Fees and Expenses. The Company shall pay to Executive all reasonable legal
fees and expenses incurred by Executive in disputing in good faith any termination of his
employment hereunder or in seeking in good faith to obtain or enforce any benefit or right under
this Agreement, provided that Executive shall have a reasonable basis for his position. Without
limiting the generality of the forgoing, if any amount is not paid hereunder when due, including,
but not limited to, any amount of Base Salary, Annual Bonus (if any), fees or expenses, the amount
thereof shall bear interest from the due date thereof until paid in full at the rate of 10% per
annum; provided, however, that the reimbursement for fees and expenses pursuant to this
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Section 2.6 shall be made no later than the end of the calendar year following the calendar
year in which such legal fees or expenses were incurred. This Section 2.6 shall remain in effect
throughout the Employment Period and for a period of five (5) years following the termination of
the Employment Period.
| 3. | Termination. |
3.1 Termination.
(a) The Employment Period (i) shall automatically terminate immediately upon Executive’s
death, (ii) may be terminated at any time by the Board as set forth herein for Cause or without
Cause, or by reason of Executive’s Permanent Disability, upon written notice to Executive, (iii)
may be terminated at any time by Executive with Good Reason upon written notice to the Company, or
(iv) may be terminated at any time by Executive without Good Reason and without liability upon
thirty (30) days prior written notice to the Company.
(b) In addition to the capitalized terms defined elsewhere in this Agreement, the following
capitalized terms shall have the following meanings when used in this Agreement:
“Cause” means the occurrence of any of the following events:
(i) a material breach by Executive of any of the terms and conditions of this Agreement, which
breach remains uncured ten (10) days after receipt by Executive of written notice of such breach;
(ii) Executive continues to willfully and materially fail to perform his duties hereunder, or
engages in excessive absenteeism unrelated to illness or permitted vacation, ten (10) days after a
written demand for performance is delivered to Executive by the Board or its representative, which
written demand specifically identifies the manner in which the Board believes that Executive has
not performed Executive’s duties;
(iii) Executive’s commission of theft, fraud, misappropriation or embezzlement in connection
with the Company’s or its subsidiaries’ or affiliates’ business; or
(iv) Executive’s commission of criminal misconduct constituting a felony;
provided that, (x) for purposes of this definition, no act or failure to act by
Executive shall be “willful” if it is done, or omitted to be done, in good faith by Executive with
a reasonable belief that Executive’s act or omission was in the best interests of the Company, (y)
the Board shall not be permitted to terminate the Employment Period for Cause unless and until the
Board shall have delivered to Executive a copy of a resolution duly adopted by the affirmative vote
of not less a majority of the members of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice is provided to Executive and Executive is given an
opportunity, together with counsel, 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 the definition of “Cause”
and specifying the particulars thereof in reasonable detail, and (z) the definition of “Cause”
hereunder shall supersede any definition of “cause” contained in any employee benefit
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or incentive compensation plan or agreement now or hereafter adopted by the Company and
applicable to Executive that provides for a forfeiture or payment upon the Executive’s violation of
a Company policy or similar such conduct under such plan or agreement.
“Good Reason” means (i) the Company moves its principal offices from the Minneapolis-St. Xxxx
metropolitan area and requires Executive to relocate to the vicinity of such new offices; (ii) any
material diminution by the Company in Executive’s duties or responsibilities inconsistent with the
terms hereof, which diminution remains uncured thirty (30) days after receipt by the Company of
written notice of such breach; (iii) the Company materially breaches any of its obligations
hereunder, which breach remains uncured thirty (30) days after receipt by the Company of written
notice of such breach; or (iv) a diminution in Base Salary or the target amount of any Annual
Bonus, or a material diminution in Benefits available to the Executive on the Effective Date or as
hereafter may be made available to the Executive, in each case other than: (x) an inadvertent and
isolated act or omission that is promptly cured upon notice by Executive to the Company or (y) any
diminution of Benefits applicable to the other senior executives of the Company.
“Permanent Disability” as used herein shall mean that (i) Executive has begun receiving
disability income insurance payments under any disability income insurance policy that the Company
is then maintaining for the benefit of executive-level employees or (ii) if the Company is not then
maintaining disability income insurance for executive-level employees, Executive is unable to
perform, by reason of physical or mental incapacity, his duties or obligations under this Agreement
for a period of sixty (60) days in any consecutive 120-day period. The Board shall determine,
according to the facts then available, whether and when Executive’s Permanent Disability has
occurred. Such determination shall be reasonable and the Board, in making such determination,
shall take into consideration the opinion of Executive’s personal physician, if reasonably
available.
“Person” means any individual, partnership, limited liability company, corporation, joint
venture, trust, or other entity.
“Separation from Service” means Executive’s termination of employment from the Company which
constitutes a “separation from service,” as such term is defined under Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) or applicable guidance or regulations thereunder.
3.2 Compensation After Termination. (a) If the Employment Period is terminated (i) by
reason of Executive’s death, (ii) by the Company for Cause or by reason of Executive’s Permanent
Disability, or (iii) by Executive without Good Reason, then the Company shall have no further
obligations hereunder, including under Section 2, or otherwise with respect to Executive’s
employment from and after the termination date, except (x) for payment of Executive’s Base Salary
and Benefits accrued through the date of termination and any Annual Bonus due pursuant to Section
2.2 for the immediately preceding fiscal year to the extent unpaid on the date of such termination,
and (y) in the event the Employment Period is terminated due to Executive’s death or Permanent
Disability, Executive shall receive a pro rata Annual Bonus as provided in Section 3.2(b)(iv), and
the Company shall continue to have all other rights available hereunder at law, in equity or
otherwise in connection with such termination; provided, however,
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such pro rata Annual Bonus, if any, shall be paid at such time as such Annual Bonus would
normally be required to be paid under the Company’s annual bonus plan; provided
further, that if the Employment Period is terminated by reason of Executive’s Permanent
Disability and such pro rata Annual Bonus would be payable under the Company’s annual bonus plan
earlier than the date which is six (6) months following the date on which Executive incurs a
Separation from Service with the Company, payment of such Annual Bonus shall be made on the date
which is six (6) months following Executive’s Separation from Service.
(b) If the Employment Period is terminated by the Company without Cause or by Executive with
Good Reason, then, in either case, the Company shall pay, or provide, to Executive:
(i) Executive’s Base Salary and Benefits accrued through the date of termination;
(ii) any Annual Bonus due pursuant to Section 2.2 for the immediately preceding fiscal year to
the extent unpaid on the date of such termination;
(iii) an amount equal to one (1) year of the annual Base Salary in effect at the time the
Executive incurs such termination (determined without regard for any diminution in such Base Salary
constituting Good Reason for Executive’s resignation), payable to Executive in a lump sum on the
date which is six (6) months following Executive’s Separation from Service; and
(iv) a pro-rated portion (based upon the number of days elapsed in the fiscal year in which
the Employment Period is terminated through the date of such termination) of the Annual Bonus, if
any, that would have been payable to Executive for such fiscal year pursuant to Section 2.2
(determined without regard for any diminution in the target amount of such Annual Bonus opportunity
constituting Good Reason for Executive’s resignation) had Executive remained employed by the
Company for the entire fiscal year. Such pro rata Annual Bonus, if any, shall be paid at such time
as such Annual Bonus would normally be required to be paid under the Company’s annual bonus plan;
provided, however, that if such pro rata Annual Bonus would be payable under the
Company’s annual bonus plan earlier than the date which is six (6) months following the date on
which Executive incurs a Separation from Service with the Company, payment of such Annual Bonus
shall be made on the date which is six (6) months following Executive’s Separation from Service;
provided that the Company’s obligation under Sections 3.2(b)(iii) and (iv) is contingent on
Executive’s execution, delivery and non-rescission of a general release of all claims against the
Company in the form of Exhibit A attached hereto.
Except for its obligations under this Section 3.2(b) and as otherwise provided in Section 3.3, the
Company shall have no further obligations hereunder, including under Section 2, or otherwise with
respect to Executive’s employment from and after the termination date.
3.3 Continuation of Medical and Dental Benefits. (a) If the Employment Period is
terminated (i) by the Company without Cause or (ii) by Executive with Good Reason, then, during the
eighteen (18) months following such termination (such period, the “Benefits Period”), the Company
shall provide medical and dental benefits to Executive and his covered dependents
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on the same terms and conditions as if Executive continued to remain an active employee of the
Company (in all events below determined without regard for any diminution of such coverage
constituting Good Reason for his resignation hereunder), subject to Executive timely electing
coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”) on the following terms and conditions:
(A) So long as the terms of the medical and dental plan (the “Plan”) under which the medical
and dental benefits are provided allow Executive’s continued participation therein, the Company
will continue to offer Executive medical and dental coverage substantially equivalent to the
medical and dental coverage which Executive was receiving immediately prior to such termination;
(B) If during the Benefits Period Executive is no longer eligible to receive the medical and
dental coverage provided under subparagraph (A) under the Plan but is eligible for a conversion
option providing comparable benefits (with full coverage credit for any preexisting condition
limitation) as those provided to Executive and his covered dependents under the Plan as he was
receiving immediately prior to such termination, then Executive shall exercise such conversion
option if directed by the Company and the Company shall thereafter pay the premium for such medical
and dental coverage to be provided under such conversion option for the duration of the Benefits
Period; and
(C) If during the Benefits Period Executive and his covered dependents are no longer eligible
to receive medical and dental coverage under the Plan and are not eligible (or are no longer
eligible) for conversion coverage under the Plan, in both cases comparable to such coverage that
Executive and his covered dependents were receiving immediately prior to such termination as
provided under subparagraphs (A) and (B) above, then the Company shall reimburse Executive for the
duration of the Benefits Period for the premiums that Executive incurs to acquire medical and
dental coverage which is comparable to the medical and dental coverage which Executive was
receiving immediately prior to the end of coverage under the Plan or conversion option.
(b) Any medical and dental coverage provided by the Company under this Section 3.3 shall run
simultaneously with any benefits to which Executive or his dependents may be entitled under COBRA.
3.4 Payment Delay. Any amount to be paid or benefit to be provided by the Company to
the Executive under Section 3.3 (and any other payment under this Agreement made in connection with
Executive’s termination of employment) which is deferred compensation subject to Section 409A of
the Code or applicable guidance or regulations thereunder, shall be paid to Executive in a lump sum
on the date which is six (6) months following the date of Executive’s Separation from Service.
3.5 No Mitigation; No Set-Off. 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 (provided Executive
enters into and does not rescind the general release provided in Section 3.2(b) and subject to the
proviso in the succeeding sentence) which the Company may have
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against Executive or others, other than any action the Company may need to take pursuant to Section
304 of the Xxxxxxxx-Xxxxx Act of 2002. In no event shall Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable to Executive under
any of the provisions of this Agreement and such amounts shall not be reduced whether or not
Executive obtains other employment; provided that the Company’s obligation under Section
3.3 with respect to medical and dental benefits shall be limited to the extent that Executive
obtains any such medical or dental benefits from another employer during the benefit continuation
period provided thereunder, in which case the Company may reduce the coverage of any medical and
dental benefits it is required to provide Executive under Section 3.3 as long as the aggregate
coverages of the combined benefits provided by the Company and such other employer are comparable
to the benefits to be provided to Executive by the Company under Section 3.3. The provisions of
this Section 3.5 shall survive the expiration or earlier termination of this Agreement for any
reason.
| 4. | Negative Covenants. |
4.1 Confidential Information. Other than in the performance of his duties hereunder,
during the Employment Period and thereafter, Executive shall keep secret and retain in strictest
confidence, and shall not, without the prior written consent of the Board, furnish, make available
or disclose to any third party or use for Executive’s own benefit or the benefit of any third
party, any Confidential Information. As used herein, “Confidential Information” shall mean any
information relating to the business or affairs of the Company, including, but not limited to, the
Company’s products, servicing methods, development plans, costs, finances, marketing plans,
equipment configurations, data, data bases, access or security codes or procedures, business
opportunities, names of customers, research and development, inventions, algorithms, know-how and
ideas, and other proprietary information used by the Company in connection with its business;
provided, however, that Confidential Information shall not include any information
which is in the public domain or becomes generally known in the industry other than as a result of
Executive’s breach of the covenant contained in this Section 4.1 or the disclosure of which may be
required by law or in a judicial or administrative proceeding. Executive acknowledges that the
Confidential Information is vital, sensitive, confidential and proprietary to the Company.
4.2 Non-Competition and Interference with Relationships. During the Employment Period
and for a period of twelve (12) months following the expiration or earlier termination of the
Employment Period (the “Restricted Term”), Executive shall not, directly or indirectly, alone or in
combination with any other firm, partnership, company, corporation or person:
(a) (i) engage in, participate in or otherwise assist (whether as an owner, officer, partner,
principal, joint venturer, shareholder, director, member, manager, investor, employee, agent,
independent contractor, consultant or otherwise) any other person, entity or business (a
“Competitor”) engaged in or planning to engage in the Business of the Company (as defined below) in
any State of the United States of America, or in any foreign country in which the Company or an
affiliate or subsidiary of the Company is conducting such Business of the Company on the date of
such termination (the “Restricted Territory”), unless (x) at the time of the proposed action by
Executive, (1) the revenues of any such Competitor from a Business of the Company for the preceding
fiscal year of such Competitor constituted less than fifteen percent (15%) of the total revenues of
such Competitor for such fiscal year and (2) Executive
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provides the Company with a signed certificate from the independent accountants for such
Competitor stating that, in such independent accountants’ good faith reasonable judgment, the
annual revenues of such Competitor from a Business of the Company will be less than fifteen percent
(15%) of the total annual revenues of such Competitor during the Restricted Term, or (y) the sole
action of Executive with respect to a Competitor that is a publicly traded company consists of
acquiring not more than 1% of the outstanding shares of such Competitor; or (ii) solicit or
encourage any customer or partner of the Company or its affiliates (determined as of the date of
the termination of the Employment Period) to terminate or otherwise alter his, her or its
relationship with the Company; or
(b) employ, retain or solicit or attempt to solicit for employment or retention as an
independent contractor, or otherwise attempt to hire, persuade or assist in the hiring of (or
assist any other party to take any such action regarding), any individual employed or engaged by
the Company during the Restricted Term; or encourage, induce, or persuade any such person to
terminate his or her employment or other relationship with the Company.
(c) For purposes hereof, “Business of the Company” means (i) the “court and commercial”
newspaper and/or “business journal” publishing business, (ii) the business of providing mortgage
default processing services and/or appellate services to the legal profession, or (iii) any
additional business in which the Company becomes engaged or has actively and substantially
implemented plans to become engaged as of the date of termination of the Employment Period;
provided that in the event any of the foregoing businesses are sold or are discontinued during the
Restricted Period, the “Business of the Company” shall cease to include such sold or discontinued
business as of the date of sale or discontinuation; provided further that if the Company becomes
re-engaged or implements plans to become re-engaged in any such sold or discontinued business, the
“Business of the Company” shall again include such business.
4.3 Mutual Non-Disparagement. Neither party shall, at any time during the Employment
Period or thereafter, make statements or representations, or otherwise communicate, directly or
indirectly, in writing, orally or otherwise, or take any action which may, directly or indirectly,
disparage or be damaging to the other party (including any of the Company’s subsidiaries, other
affiliates, officers, directors, employees, partners or stockholders); provided that
nothing in this Section 4.3 shall preclude either party from making truthful statements or
disclosures that are required by applicable law, regulation or legal process.
4.4 Scope and Severability. The parties acknowledge that the Business of the Company
is and will be national and international in scope and thus the covenants in this Section 4 would
be particularly ineffective if the covenants were to be limited to a particular geographic area of
the United States. If any court of competent jurisdiction at any time deems the Restricted Term
unreasonably lengthy, or the Restricted Territory unreasonably extensive, or any of the covenants
set forth in Section 4 not fully enforceable, the other provisions of Section 4, and this Agreement
in general, will nevertheless stand and to the fullest extent consistent with law continue in full
force and effect, and it is the intention and desire of the parties that the court treat any
provisions of this Agreement which are not fully enforceable as having been modified to the extent
deemed necessary by the court to render them reasonable and enforceable and that the court enforce
them to such extent (for example, that the Restricted Term be deemed to be the longest period
permissible by law, but not in excess of the length provided for in Section 4.2, and
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the Restricted Territory be deemed to comprise the largest territory permissible by law under
the circumstances, but not in excess of the territory provided for in Section 4.2).
4.5. Remedies. Executive acknowledges and agrees that the covenants set forth in
this Section 4 (collectively, the “Restrictive Covenants”) are reasonable and necessary for the
protection of the Company’s business interests, that irreparable injury will result to the Company
if Executive breaches any of the terms of the Restrictive Covenants, and that in the event of
Executive’s actual or threatened breach of any of the Restrictive Covenants, the Company will have
no adequate remedy at law. Executive accordingly agrees that in the event of any actual or
threatened breach by him of any of the Restrictive Covenants, the Company shall be entitled to
immediate temporary injunctive and other equitable relief, without bond and without the necessity
of showing actual monetary damages. Nothing contained herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or threatened breach,
including the recovery of any damages. The provisions of Section 4 shall survive the expiration or
earlier termination of this Agreement for any reason.
| 5. | Miscellaneous. |
5.1 Determinations by the Board or the Committee. Except as specifically provided
herein to the contrary (such as, without limitation, Executive’s rights to appear before the Board
in connection with any determination of Cause with respect to a termination of the Employment
Period by the Company), with respect to any determinations to be made by the Board or the Committee
in connection with Executive’s employment hereunder, Executive shall not have the right to
participate in the deliberations of such determination and shall abstain from any vote of the Board
or the Committee with respect thereto.
5.2 Notices. Any notices required hereunder shall be in writing and shall be deemed
delivered upon actual receipt (or refusal to accept receipt) and may be sent by (i) personal
delivery, (ii) U.S. certified or registered mail, return receipt requested, or (iii) reputable
overnight air courier service; for the Company, to the address listed below or for the Executive,
to the last address on file with the Company (or such other addresses as may be designated by
either party by giving notice in accordance with this Section 5.2):
| To the Company: | ||||||
| Xxxxx Media Company | ||||||
| 000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000 | ||||||
| Xxxxxxxxxxx, Xxxxxxxxx 00000 | ||||||
| Attention: | Xxxxx Xxxxx, President and CEO | |||||
| Xxxx Xxxxxxxxx, Compensation Committee | ||||||
5.3 Entire Agreement. This Agreement embodies the complete agreement and
understanding among the parties and supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related to the subject
matter hereof in any way, including, without limitation, the Prior Agreement.
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5.4 Counterparts. This Agreement may be executed on separate counterparts, each of
which is deemed to be an original and both of which taken together constitute one and the same
agreement.
5.5 Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by Executive and the Company and their respective successors and
permitted assigns. Executive may not assign any of his rights or obligations hereunder without the
written consent of the Company.
5.6 Amendments and Waivers. Any provision of this Agreement may be amended or waived
only with the prior written consent of the Company and Executive.
5.7 Governing Law. This Agreement shall be construed and enforced in accordance with,
and all questions concerning the construction, validity, interpretation and performance of this
Agreement shall be governed by, the laws of the State of Delaware, without giving effect to
provisions thereof regarding conflict of laws.
5.8 Section 409A. It is intended that any income or payments to Executive provided
pursuant to this Agreement (any such income or payments being referred to as “Payments”) will not
be subject to the additional tax and interest under Section 409A (a “Section 409A Tax”). The
provisions of the Agreement will be interpreted and construed in favor of complying with any
applicable requirements of Section 409A necessary in order to avoid the imposition of a Section
409A Tax. The Company and Executive agree to amend (including retroactively) the Agreement in
order to comply with Section 409A, including amending to facilitate the ability of Executive to
avoid the imposition of, or reduce the amount of, any Section 409A Tax. The Company and Executive
shall reasonably cooperate to provide full effect to this provisions and the consent to any
amendment described in the preceding sentence shall not be unreasonably withheld by either party.
The parties agree that neither party has (a) an obligation to bring any potential Section 409A Tax
to the attention of the other party or (b) any liability for any Section 409A Tax or any other
reporting or withholding obligation to the other party.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date first
written above.
| COMPANY: | ||
| XXXXX MEDIA COMPANY | ||
| /s/ Xxxxx X. Xxxxx | ||
| Xxxxx X. Xxxxx | ||
| Chief Executive Officer and President | ||
| EXECUTIVE: | ||
| /s/ Xxxx X.X. Xxxxxxx | ||
| Xxxx X.X. Xxxxxxx |
11
EXHIBIT A
RELEASE
THIS RELEASE (this “Release”) is made as of this ___day of ___, ___, by and between
Xxxxx Media Company, a Delaware corporation (the “Company”), and Xxxx X.X. Xxxxxxx (“Executive”).
PRELIMINARY RECITALS
A. Executive and the Company entered into that certain Amended and Restated Employment
Agreement, dated as of April 1, 2007 (the “Agreement”).
B. Executive’s employment with the Company as Executive Vice President/Business Information
Division has terminated.
C. In connection with the termination of Executive’s employment, under the Agreement,
Executive is entitled to certain payments and other benefits, subject to Executive’s execution,
delivery and non-rescission of this Release.
AGREEMENT
In consideration of the payments and other benefits due Executive under the Agreement, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Executive, intending to be legally bound, does hereby, on behalf of himself and his agents,
representatives, attorneys, assigns, heirs, executors and administrators (collectively, the
“Executive Parties”) REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates,
subsidiaries, parents, joint ventures, and its and their officers, directors, shareholders,
members, managers and employees, and its and their respective successors and assigns, heirs,
executors, and administrators (collectively, the “Company Parties”) from all causes of action,
suits, debts, claims and demands whatsoever in law or in equity, which Executive or any of the
Executive Parties ever had, now has, or hereafter may have, by reason of any matter, cause or thing
whatsoever, through the date of this Release, and particularly, but without limitation of the
foregoing general terms, any claims arising from or relating in any way to Executive’s employment
relationship with Company, the terms and conditions of that employment relationship, and the
termination of that employment relationship, including, but not limited to, any claims arising
under the Age Discrimination in Employment Act (“ADEA”), as amended, 29 U.S.C. § 621 et seq., Title
VII of The Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Civil Rights Act of
1966, 42 U.S.C. '
1981, the Civil Rights Act of 1991, Pub. L. No. 102-166, the Americans with
Xxxxxxxxxxxx Xxx, 00 X.X.X. § 00000 et seq., the Fair Labor Standards Act, 29 U.S.C. '
201 et
seq., the National Labor Relations Act, 29 U.S.C. '
151 et seq., the Constitution for the State of
Minnesota or the Minnesota Human Rights Act, and any other claims under any federal, state or local
common law, statutory, or regulatory provision, now or hereafter recognized, and any claims for
reasonable attorneys’ fees and costs, but not including such claims to payments, benefits and other
rights provided Executive under the Agreement or as may be due Executive under any employee benefit
plan of the Company in accordance with the terms of such plan. This Release is effective without
regard to the legal
1
nature of the claims raised and without regard to whether any such claims are based upon tort,
equity, implied or express contract or discrimination of any sort. Except as specifically provided
herein, it is expressly understood and agreed that this Release shall operate as a clear and
unequivocal waiver by Executive of any claim for accrued or unpaid wages, benefits or any other
type of payment.
2. Executive, on behalf of himself and the Executive Parties, agrees never to bring (or cause
or permit to be brought) any action or proceeding against the Company or any Company Party,
regarding employment, discrimination in employment, or the termination of employment, and the
common law of any state relating to employment contracts, wrongful discharge, public policy torts,
remuneration in employment, or any other matter released pursuant to Section 1. Executive agrees
that in the event that any claim, suit or action released by this Release shall be commenced by him
or any of the Executive Parties against the Company or any Company Party, this Release shall
constitute a complete defense to any such claim, suit or action so instituted.
3. Executive hereby covenants and agrees, on behalf of himself and the Executive Parties, that
neither he nor any of the Executive Parties will encourage any person or entity to file a lawsuit,
claim or complaint against the Company or any Company Party relating to the claims released by this
Release. Executive hereby covenants and agrees, on behalf of himself and the Executive Parties,
that neither he nor any of the Executive Parties will assist any person or entity who files or has
filed a lawsuit, claim, or complaint against the Company or any Company Party relating to the
claims released under this Release unless Executive or such Executive Party is required to render
such assistance pursuant to a lawful subpoena or other legal obligation. If Executive or any
Executive Party is served with any such legal subpoena or becomes subject to any such legal
obligation, Executive shall provide prompt written notice to the Company thereof and enclose a copy
of the subpoena and any other documents describing the legal obligation with such written notice.
4. Executive further agrees and recognizes that he has permanently and irrevocably severed his
employment relationship with the Company, that he shall not seek employment with the Company or any
affiliated entity at any time in the future, and that the Company has no obligation to employ him
in the future.
5. The parties agree and acknowledge that the Agreement, and the settlement and termination of
any asserted or unasserted claims against the Company and the Company Parties pursuant to this
Release, are not and shall not be construed to be an admission of any violation of any federal,
state or local statute or regulation, or of any duty owed by the Company or any of the Company
Parties to Executive.
6. Executive certifies and acknowledges as follows:
(a) That he has read the terms of this Release, and that he understands its terms and effects,
including the fact that he has agreed to RELEASE AND FOREVER
2
DISCHARGE the Company and all Company Parties from any legal action or other liability of any
type related in any way to the matters released pursuant to this Release other than as provided in
the Agreement and in this Release;
(b) That he has signed this Release voluntarily and knowingly in exchange for the
consideration described herein, which he acknowledges is adequate and satisfactory to him and which
he acknowledges is in addition to any other benefits to which he is otherwise entitled;
(c) That he has been advised in writing to consult with an attorney prior to signing this
Release;
(d) That he does not waive rights or claims that may arise after the date this Release is
executed other than those claims arising under the Agreement or any employee benefit plan of the
Company in accordance with the terms of such plan;
(e) That the Company has provided him with a period of twenty-one (21) days within which to
consider this Release, and that Executive has signed on the date indicated below after concluding
that this Release is satisfactory to him; and
(f) That he has fifteen (15) calendar days after signing this Release within which to rescind
this Release, in writing and delivered to the Company.
Intending to be legally bound hereby, Executive and the Company executed the foregoing Release
this day of , .
| Xxxx X.X. Xxxxxxx | ||||||
Witness: |
||||||
| XXXXX MEDIA COMPANY | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Witness: |
||||||
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