EMPLOYMENT AGREEMENT
EXECUTION COPY
Exhibit 10.36
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of the 14th
day of December, 2006, to be effective as of December 29, 2006 (the “Effective Date”), by
and between Sun-Times Media Group, Inc., a Delaware corporation (the “Employer”), and Xxxxx
X. XxXxxxxxx (the “Executive”).
RECITALS
The Executive currently serves as Assistant General Counsel to the Employer. Effective as of
the close of business on December 29, 2006, the Employer desires that the Executive continue to
provide services for the benefit of the Employer as its Vice President, General Counsel and
Secretary and the Executive desires to accept such continued employment with the Employer.
NOW, THEREFORE, in consideration of the above premises and the following mutual covenants and
conditions, the parties agree as follows:
1. Employment. This Agreement shall not become effective until the Effective Date.
Effective as of the close of business on the Effective Date, the Employer shall employ the
Executive as its Vice President, General Counsel and Secretary and the Executive hereby accepts
such employment on the following terms and conditions.
2. Duties. The Executive shall work for the Employer in a full-time capacity. From
the Effective Date through the expiration of this Agreement, the Executive shall have the duties,
responsibilities, powers, and authority customarily associated with the positions of Vice
President, General Counsel and Secretary. The Executive shall report to, and follow the direction
of, the President and Chief Executive Officer of the Employer. In addition to, or in lieu of, the
foregoing, the Executive also shall perform such other duties as may be assigned to him from time
to time by the President and Chief Executive Officer. The Executive shall diligently, competently,
and faithfully perform all duties, and shall devote his entire business time, energy, attention,
and skill to the performance of duties for the Employer and will use his best efforts to promote
the interests of the Employer; provided the Executive shall be entitled to devote time to personal
investments and professional activities to the extent such activities do not unduly interfere with
his duties hereunder.
3. Term of Employment. The initial term of employment hereunder shall commence on the
Effective Date and end on December 31, 2007. The then current term of employment hereunder as of
any time is referred to herein as the “Current Term”. On December 31, 2007, and on each
succeeding December 31, the term of employment shall be renewed for successive
periods of one (1) year, unless the Board of Directors of the Employer (the “Board”)
provides the Executive, or the Executive provides the Board, with written notice to the contrary at
least thirty (30) days prior to the end of the Current Term.
4. Compensation.
A. Salary. As of the Effective Date, the Employer shall pay the Executive an annual
salary of US$275,000 (the “Base Salary”), payable in substantially equal installments in
accordance with the Employer’s payroll policy from time to time in effect. The Executive’s salary
shall be subject to any payroll or other deductions as may be required to be made pursuant to law,
government order, or by agreement with, or consent of, the Executive. The Base Salary is subject
to increase at the discretion of the Board, or a Committee thereof acting under delegated
authority, as appropriate.
B. Performance Bonus. Beginning with calendar year 2007, during the term of this
Agreement, the Executive shall be eligible for an annual bonus targeted at fifty percent (50%) of
the Executive’s Base Salary (the “Target Bonus”), such bonus, if any, to be paid no later
than the date which is two and one-half (2 1 ¤ 2 ) months following
the end of each calendar year. The bonus shall be based upon an annual calendar year bonus plan,
to be established by the Board prior to or as soon as reasonably practicable after each January 1.
The actual bonus to be paid to Executive shall be determined by the Board, or by a committee
thereof with delegated authority, based upon such criteria as are established by the Board or such
committee and communicated to Executive. The actual bonus to be paid to Executive may exceed or be
lower than the Target Bonus, based upon performance relative to the established criteria.
C. Long-Term Incentive Plan. Beginning with calendar year 2007, the Executive shall
be eligible to receive an annual award (the “Incentive Award”) under the Employer’s
Long-Term Incentive Plan (the “LTIP”). The terms of any Incentive Award, including those
relating to the vesting and payment thereof, are subject to the terms and conditions of the LTIP,
which is incorporated herein by reference. The actual Incentive Award to be awarded to the
Executive shall be determined by the Board, or by a committee thereof with delegated authority, in
its discretion.
D. Other Compensation. Executive shall be eligible to participate in any and all
other incentive compensation programs established by Employer in which Employer’s senior executives
participate or with respect to which they are eligible. The Board, or a Committee thereof with
delegated authority, shall determine the amount of any such awards in its sole discretion.
E. Benefits and Perquisites. Executive shall be eligible to participate in all
benefit plans and programs for which other senior executives of Employer are eligible, and shall be
entitled to such perquisites as are available to other
senior executives of Employer, and such additional perquisites as may be approved by the Board
or the Compensation Committee thereof.
5. Expenses. The Employer shall reimburse the Executive for expenses in accordance
with the Employer’s policies from time to time in effect.
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6. Termination. The Executive’s services under this Agreement shall terminate upon
the first to occur of the following events:
A. At the end of the then Current Term of this Agreement if not renewed in accordance with the
provisions of Paragraph 3 hereof.
B. Upon the Executive’s date of death or the date the Executive is given written notice from
the Employer that he has been determined to be disabled. For purposes of this Agreement, the
Executive shall be deemed to be “disabled” if the Executive, as a result of illness or incapacity,
shall be unable to perform substantially his required duties for a period of three (3) consecutive
months or for any aggregate period of three (3) months in any six (6) month period.
C. On the date the Employer provides the Executive with written notice that he is being
terminated for “Cause.” For purposes of this Agreement, “Cause” means that Executive has:
(i) been convicted of (or has pleaded guilty or no contest to) a felony, or (ii) engaged in conduct
that constitutes willful gross neglect or willful gross misconduct with respect to his employment
duties; provided, no act or omission on Executive’s part shall be considered “willful” if conducted
in good faith and with a reasonable belief that his conduct was in the best interests of Employer.
Notwithstanding the foregoing, the Employer may not terminate Executive’s employment for Cause
under clause (ii) of this Paragraph 6C unless Executive is given at least thirty (30) days to cure
any such conduct (if capable of cure), and only after Executive has received a certified copy of a
resolution of the Board terminating his employment for Cause and stating specifically the conduct
that the Board believes satisfies the definition of Cause.
D. On the date the Executive terminates his employment for any reason, provided that the
Executive shall give the Employer thirty (30) days written notice prior to such date of his
intention to terminate this Agreement.
E. On the date the Employer terminates the Executive’s employment for any reason other than in
the event of Executive’s death or disability or for Cause, provided that the Employer shall give
the Executive thirty (30) days written notice prior to such date of its intention to terminate this
Agreement.
7. Compensation upon Termination.
A. If the Executive’s services are terminated pursuant to Paragraph 6B, 6C or (except as
provided in Paragraph 7C) 6D, or the Executive elects to terminate this Agreement at the end of its
then Current Term pursuant to Paragraph 6A, the Executive shall be entitled to his salary and
health and welfare benefits through his final date of active employment, plus any accrued but
unused vacation pay. The Executive shall also be entitled to any benefits mandated under the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) or required under the
terms of any death, insurance, or retirement plan, program, or agreement, or any other plan or
arrangement, provided by the Employer and to which the Executive is a party or in which
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the
Executive is a participant, including, but not limited to, any short-term or long-term disability
plan or program, if applicable. All payments and benefits described in this Paragraph 7A are
referred to herein as “Accrued Obligations.”
B. If the Executive’s services are terminated pursuant to Paragraph 6E, or the Employer elects
to terminate this Agreement at the end of its then Current Term pursuant to Paragraph 6A, in either
case (x) prior to and not in connection with a Change in Control (as defined herein) or (y)
following the twenty-four (24) month period following the occurrence of any such Change in Control,
Executive shall receive (except as otherwise provided in Paragraph 7E) (i) a lump sum equal to (a)
one times the sum of the final Base Salary plus Target Bonus plus (b) a pro-rata annual bonus for
the year in which termination of employment occurs, determined by multiplying the Target Bonus by a
fraction, the numerator of which is the number of days elapsed in the calendar year in which
termination of employment occurs through the date of termination of Executive’s services under this
Agreement (such date, the “Final Date”), and the denominator of which is 365 (the
“Pro-Rata Bonus”) plus (c) any bonus that was earned by Executive under Paragraph 4B with
respect to a prior calendar year but not paid as of the Final Date, (ii) continuation for a period
ending one year from the Final Date (the “Continuation Period”) of medical, dental, vision
and life insurance benefits provided to Executive immediately prior to termination of employment,
subject to the Company’s continuation of such benefits for its employees and to Executive’s payment
of the cost of such benefits to the same extent that active employees of the Company are required
to pay for such benefits from time to time, provided that such continuation coverage shall end
earlier upon Executive’s becoming eligible for comparable coverage under another employer’s benefit
plans and (iii) the Accrued Obligations. For purposes of COBRA, the date of Executive’s
“qualifying event” arising out of such termination of employment shall be the date of termination
of employment. Upon termination of the Executive’s services under this Agreement pursuant to this
Paragraph 7B (except as otherwise provided in Paragraph 7E), (i) all unvested cash Incentive Awards
shall become immediately vested and payable (if applicable) as and to the extent provided in the
LTIP, and (ii)(a) all unvested equity-based awards under the LTIP or otherwise that would have
vested under the original vesting schedule for such awards at any time during the Continuation
Period shall become immediately fully vested and payable (if applicable) and (b) all other unvested
equity-based awards under the LTIP or otherwise shall
immediately terminate. Employer’s obligations to pay the amounts and furnish the benefits as
provided in this Paragraph 7B shall be conditioned upon receipt by Employer of Executive’s written
waiver and release of the Employer from all claims related to the Executive’s employment and
termination of employment, including without limitation for additional severance payments and
benefits and otherwise, which has become irrevocable and effective in accordance with its terms
(the “Release”). All payments described in this Paragraph 7B shall be made to Executive in
a single lump sum on the later of (A) the date on which the Release becomes irrevocable and
effective in accordance with its terms and (B) ten (10) business days following the date of
termination of the Executive’s services under this Agreement.
C. In the event of a Change in Control, and the subsequent termination, within twenty-four
(24) months after the Change in Control, of Executive’s
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services under this Agreement by Employer
without Cause (including pursuant to the Employer’s election to terminate this Agreement at the end
of the then Current Term pursuant to Paragraph 6A) or by Executive for Good Reason, the Executive
shall receive (except as otherwise provided in Paragraph 7E) (i) a lump sum amount equal to (a) the
Pro-Rata Bonus, plus (b) Executive’s final Base Salary multiplied by two (2), plus (c) Executive’s
Target Bonus multiplied by two (2), plus (d) any bonus that was earned by Executive under Paragraph
4B with respect to a prior calendar year but not paid as of the Final Date; (ii) continuation for a
period ending two years from the Final Date of medical, dental, vision and life insurance benefits
provided to Executive immediately prior to termination of employment, subject to the Company’s
continuation of such benefit plans for its employees and to Executive’s payment of the cost of such
benefits to the same extent that active employees of the Company are required to pay for such
benefits from time to time, provided that such continuation coverage shall end earlier upon
Executive’s becoming eligible for comparable coverage under another employer’s benefit plans; and
(iii) the Accrued Obligations. For purposes of COBRA, the date of Executive’s “qualifying event”
arising out of such termination of employment shall be the date of termination of employment. In
addition, upon a Change in Control, all unvested Incentive Awards shall become immediately vested
and payable (if applicable) as and to the extent provided in the LTIP, and all other unvested
equity-based awards and grants previously made to Executive under the LTIP or otherwise shall
become immediately fully vested and payable (if applicable). All payments described in this
Xxxxxxxxx 0X xxxxx xx made to Executive in a single lump sum on a date that is not later than ten
(10) business days following the date of termination of Executive’s services under this Agreement.
For purposes of this Agreement, “Good Reason” for termination of Executive’s
employment by Executive shall exist if a Change of Control has occurred and, at any time during the
twenty-four (24) months thereafter, any of the following has also occurred: (i) Executive’s title,
authority, or principal duties are materially reduced, materially diminished or eliminated; (ii)
Executive’s Base Salary is reduced or Executive’s benefits are diminished (except in connection
with reduction of base salaries or benefits, as the case may be, on substantially an Employer-wide
basis, so long as Executive’s reduction is not less favorable on a percentage basis than the
reductions applicable to other members of senior management of the Employer; or (iii) Executive’s
principal place of employment is relocated to a location that results in an increase in Executive’s
one-way commute of more than thirty-five (35) road miles from the prior commuting distance.
For purposes of this Agreement, a “Change in Control” shall be deemed to have occurred
upon:
(1) the acquisition after the date of this Agreement by any “person” (as defined in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) (excluding for this purpose, (i) the Employer or any subsidiary of
the Employer or (ii) any employee benefit plan of the Employer or of any subsidiary of the
Employer or any person or entity organized, appointed or established by the Employer for or
pursuant to the terms
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of any such plan which acquires after the date of this Agreement
beneficial ownership of voting securities of the Employer, or (iii) RSM Xxxxxxx Inc.
(“Xxxxxxx”), in its capacity (but solely in its capacity) as (x) interim receiver,
receiver and manager of the assets, undertakings and properties of Ravelston Corporation
Limited (“RCL”) and Ravelston Management Inc. (“RMI”) pursuant to the
Receivership Order of the Ontario Superior Court of Justice dated April 20, 2005, and (y)
monitor of RCL and RMI pursuant to the CCAA Initial Order of the Ontario Superior Court of
Justice dated April 20, 2005 (Xxxxxxx, in its capacities as interim receiver, receiver,
manager and monitor pursuant to the foregoing orders of the Ontario Superior Court of
Justice, is referred to as the “Receiver”), and any Person which as of April 20,
2005 was a direct or indirect subsidiary of RCL or RMI (a “Ravelston Subsidiary”);
provided, that each such Ravelston Subsidiary shall only be deemed to be covered by this
clause (iii) for so long as (A) it is and remains a Ravelston Subsidiary, (B) Xxxxxxx
remains Receiver, and (C) Xxxxxxx, in its capacity as Receiver, beneficially owns no more
voting securities of Employer than were beneficially owned by RCL and RMI on April 20,
2005) of beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Employer representing more than fifty percent (50%) of
the combined voting power of the Employer’s then outstanding securities; provided, however,
that no Change in Control will be deemed to have occurred as a result of a change in
ownership percentage resulting solely from an acquisition of securities by the Employer; or
(2) the members of the Board as of the Effective Date (collectively, “Incumbent
Directors”) and any new directors whose election by the Board or nomination by the
Board for election by the Employer’s stockholders was approved by a vote of a least
two-thirds ( 2 ¤ 3 ) of the directors then still in office
who either are Incumbent Directors or whose election or nomination for election was
previously so approved (such new directors being referred to as “Successor Incumbent
Directors”) ceasing for any reason to constitute at least a majority of the Board; or
(3) the adoption, enactment or effectiveness of any action (including, without
limitation, by resolution or by amendment to the
Employer’s charter or bylaws) that materially limits or diminishes the power or
authority of the Employer’s board of directors or any committee thereof, if such action has
not been approved by a vote of a least two-thirds ( 2 ¤ 3 )
of the directors then still in office who either are Incumbent Directors or Successor
Incumbent Directors; or
(4) the consummation of a reorganization, merger or consolidation, or sale or other
disposition of all or substantially all of the assets of the Employer (a “Business
Combination”), in each case, unless, following such Business Combination, all or
substantially all of the individuals and entities who were the beneficial owners of
outstanding voting securities of the Employer immediately prior to such Business
Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the
combined voting power of the
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then outstanding voting securities entitled to vote generally
in the election of directors of the entity resulting from such Business Combination
(including, without limitation, an entity which, as a result of such transaction, owns the
Employer, or all or substantially all of the Employer’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 voting securities of the
Employer; or
(5) the shareholder approval of a complete liquidation or dissolution of the Employer.
D. Anything in this Agreement to the contrary notwithstanding and except as set forth below,
in the event it shall be determined that any Payment would be subject to the Excise Tax, then the
amounts and benefits payable to the Executive under this Agreement or otherwise shall be reduced so
that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount, but only
if the effect of such reduction would be to place Executive in a better after-tax economic position
than Executive would have been in had no such reduction been effected. The reduction of the
amounts payable hereunder, if applicable, shall be made by first reducing the cash severance
payments under Paragraph 7C or 7B, as applicable, unless an alternative method of reduction is
elected by the Executive, and in any event shall be made in such a manner as to maximize the Value
of all Payments actually made to the Executive. All determinations required to be made under this
Paragraph 7D, including the assumptions to be utilized in arriving at such determination, shall be
made by the Employer’s auditor in effect immediately prior to a Change of Control or such other
nationally recognized certified public accounting firm as may be designated by the Employer (the
“Accounting Firm”). In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the Change in Control, the Employer may
appoint another nationally recognized accounting firm to make the determinations required hereunder
(which accounting firm shall then be referred to as the Accounting Firm hereunder). The Accounting
Firm shall provide detailed supporting calculations both to the Employer and the Executive within
15 business days of the receipt of notice from the Executive that there has been a Payment or such
earlier time as is requested by the Employer. All fees and expenses of the Accounting Firm shall be
borne solely by the
Employer. Any determination by the Accounting Firm shall be final and binding upon the
Employer and the Executive.
For purposes of this Paragraph 7D, the following terms shall have the following meanings:
(a) “Excise Tax” shall mean the excise tax imposed by Section 4999 of the
Code, together with any interest or penalties imposed with respect to such excise
tax.
(b) “Parachute Value” of a Payment shall mean the present value as of the
date of the change of control for purposes of Section 280G of the Code of the
portion of such Payment that constitutes a “parachute payment” under
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Section
280G(b)(2), as determined by the Accounting Firm for purposes of determining
whether and to what extent the Excise Tax will apply to such Payment.
(c) “Payment” shall mean any payment or distribution in the nature of
compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the
benefit of the Executive, whether paid or payable pursuant to this Agreement or
otherwise.
(d) “Safe Harbor Amount” means 2.99 times the Executive’s “base amount,”
within the meaning of Section 280G(b)(3) of the Code.
(e) “Value” of a Payment shall mean the economic present value of a
Payment as of the date of the change of control for purposes of Section 280G of the
Code, as deter-mined by the Accounting Firm using the discount rate required by
Section 280G(d)(4) of the Code.
E. Notwithstanding the foregoing, the Employer may elect to terminate this Agreement at the
end of its then Current Term pursuant to Paragraph 6A but not terminate Executive’s employment with
the Employer. If the Employer so elects, and if the Employer has Comparable Severance Policies (as
defined below) in effect as of the date on which this Agreement is so terminated, then the
Executive shall not be entitled to receive the payments and benefits described in Paragraph 7B or
7C. For purposes of this Agreement, “Comparable Severance Policies” means one or more
policies, programs or arrangements that have been approved by the Board (or its Compensation
Committee) which would entitle the Executive to receive (in the absence of an employment agreement)
upon a subsequent termination of employment by the Employer under circumstances described in
Paragraph 6E, payments and benefits that are substantially identical to and no less favorable than
those described in Paragraph 7B or 7C, as applicable. Following the termination of this Agreement
pursuant to the Employer’s election under this Paragraph 7E, the Employer agrees that any
subsequent modification of the Comparable Severance Policies shall not be effective as to the
Executive if such modifications would result in the Executive receiving payments and benefits (upon
a subsequent termination of employment by the Employer under
circumstances described in Paragraph 6E) that are less favorable than those described in
Paragraph 7B or 7C, as applicable.
8. Confidential Information. Executive acknowledges that the Confidential Information
(as defined herein) obtained by him concerning the business and affairs of the Employer and its
affiliates and its and their predecessors during the course of his performance of services for, or
employment with, any of the foregoing persons (whether or not compensated for such services) are
the property of the Employer and its affiliates. Therefore, Executive agrees that he will not at
any time (whether during
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or after his employment period) disclose to any unauthorized person or,
directly or indirectly, use for his own account, any Confidential Information without the Board’s
consent. Executive agrees to deliver to the Employer at the termination of his employment, or at
any other time the Employer may request in writing (whether during or after his employment period),
all memoranda, notes, plans, records, reports and other documents, regardless of the format or
media (and copies thereof), relating to the business of the Employer and its affiliates and its and
their predecessors which he may then possess or have under his control and which contain
Confidential Information. As used herein, “Confidential Information” means information or
materials of a confidential or proprietary nature and includes, but is not limited to, (a) matters
of a technical nature, such as trade secrets, methods, data and know-how, inventions, designs,
machines, computer programs or printouts, and documentation and similar items or research projects,
and (b) matters of a business nature, such as information about past, present, or future company
performance, correspondence, notes, reports, files, financial information, sales figures and
projections, budgets, marketing plans, price lists, strategies, and lists of actual or potential
customers, partners, or investors. Notwithstanding the foregoing, Confidential Information shall
not include information that is generally ascertainable from public or published information or
trade sources.
9. Noncompetition and Nonsolicitation; Remedies.
A. The Executive covenants and agrees that, during the Executive’s employment with the
Employer and for the period of one (1) year after the effective date of the Executive’s termination
of employment for whatever reason (the “Restricted Term”), he will not (a) be employed in
an executive or managerial capacity by, or (b) provide whether as an employee, independent
contractor, consultant, or otherwise, any services of an executive or managerial nature or any
services similar to those provided by the Executive to the Employer during the Executive’s
employment with the Employer to, any company or entity engaged in the production or sale of
newspapers or news magazines in any market which is served by the Employer or which the Employer is
actively preparing to serve at the time of the Executive’s termination of employment. The
Executive acknowledges that the restrictions contained in this Paragraph 9A are necessary to
protect the Employer’s legitimate interests in its Confidential Information and customer
relationships.
B. The Executive covenants and agrees that during the Executive’s employment with the Employer
and the Restricted Term, other than in the proper performance of the Executive’s duties while
employed by the Employer, the Executive will not employ, retain, solicit, attempt to solicit,
knowingly assist in the employment or retention of, or seek to influence or induce to leave the
Employer’s employment or service any individual who is employed or retained as an independent
contractor by the Employer at such time or who was employed or retained as an independent
contractor by the Employer at any time during the three (3) month period prior to the Executive’s
date of termination. The Executive acknowledges that the restrictions contained in this Paragraph
9B are necessary to protect the Employer’s legitimate interests in its Confidential Information,
customer relationships, and employee relationships.
C. The Executive acknowledges and agrees that any breach or threatened breach by the Executive
of Paragraphs 8 and 9 of this Agreement will cause irreparable harm and continuing damages to the
Employer and that the remedy at law for
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any such breach or threatened breach will be inadequate.
Accordingly, in addition to any other remedies that may be available to the Employer at law or in
equity in such event, the Employer shall be entitled to seek and obtain, from any court of
competent jurisdiction, an injunction or injunctions, without bond or other security and without
having to show that money damages will be inadequate or impossible to determine and without proving
special damages or irreparable injury, enjoining and restricting the breach or threatened breach.
If the Employer succeeds in securing any such relief, the Executive will pay all of the costs and
expenses, including reasonable attorneys’ fees, that the Employer incurs in obtaining such relief.
10. Notices. Any and all notices required in connection with this Agreement shall be
deemed adequately given only if in writing and (a) personally delivered, or sent by first class,
registered, or certified mail, postage prepaid, return receipt requested or by recognized overnight
courier, (b) sent by facsimile, provided a hard copy is mailed on that date to the party for whom
such notices are intended, or (c) sent by other means at least as fast and reliable as first class
mail. A written notice shall be deemed to have been given to the recipient party on the earlier of
(i) the date it shall be delivered to the address required by this Agreement; (ii) the date
delivery shall have been refused at the address required by this Agreement; (iii) with respect to
notices sent by mail or overnight courier, the date as of which the Postal Service or overnight
courier, as the case may be, shall have indicated such notice to be undeliverable at the address
required by this Agreement; or (iv) with respect to a facsimile, the date on which the facsimile is
sent and receipt of which is confirmed. Any and all notices referred to in this Agreement, or which
either party desires to give to the other, shall be addressed to the Executive at 0000 Xxxx
Xxxxxxxx Xxxxxx, Xx. 0, Xxxxxxx, XX 00000, or to its principal office in the case of the Employer.
The Executive and the Employer may change the applicable addresses for notice by providing to the
other at least five (5) days advance written notice thereof in accordance with the foregoing
provisions of this Paragraph 10.
11. Waiver of Breach. A waiver by the Employer of a breach of any provision of this
Agreement by the Executive shall not operate or be construed as a waiver or estoppel of any
subsequent breach by the Executive. No waiver shall be valid unless in writing and signed by an
authorized officer of the Employer.
12. Assignment. The Executive acknowledges that the services to be rendered by him are
unique and personal. Accordingly, the Executive may not assign any of his rights or delegate any
of his duties or obligations under this Agreement. The rights and obligations of the Employer
under this Agreement shall inure to the benefit and shall be binding upon the successors and
assigns of the Employer. Employer covenants and agrees that it will secure the assumption by or
the agreement of any successor or assignee of this Agreement to the terms hereof.
13. Entire Agreement; Amendment. This Agreement sets forth the entire and final
agreement and understanding of the parties and contains all of the agreements made between the
parties with respect to the subject matter hereof. This
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Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto, with respect to the subject
matter hereof. No change or modification of this Agreement shall be valid unless in writing and
signed by the Employer and the Executive.
14. Severability. If any provision of this Agreement shall be found invalid or
unenforceable for any reason, in whole or in part, then such provision shall be deemed modified,
restricted, or reformulated to the extent and in the manner necessary to render the same valid and
enforceable, or shall be deemed excised from this Agreement, as the case may require, and this
Agreement shall be construed and enforced to the maximum extent permitted by law, as if such
provision had been originally incorporated herein as so modified, restricted, or reformulated or as
if such provision had not been originally incorporated herein, as the case may be. The parties
further agree to seek a lawful substitute for any provision found to be unlawful; provided, that,
if the parties are unable to agree upon a lawful substitute, the parties desire and request that a
court or other authority called upon to decide the enforceability of this Agreement modify those
restrictions in this Agreement that, once modified, will result in an agreement that is enforceable
to the maximum extent permitted by the law in existence at the time of the requested enforcement.
15. Headings. The headings in this Agreement are inserted for convenience only and
are not to be considered a construction of the provisions hereof.
16. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be considered an original, but which when taken together, shall constitute one
agreement.
17. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Illinois, without reference to its conflict of law provisions.
18. Litigation Expenses. In the event Executive brings an action seeking to enforce
his rights under this Agreement, the Employer will pay, on a regular and current basis, all of
Executive’s reasonable legal fees and expenses incurred in connection with such action. Executive
will be obligated to return all amounts so advanced only in the event of a final judgment or
arbitration determination denying in full Executive’s requested relief.
19. Indemnification. During and after the term hereof, Executive shall be entitled to
indemnification by Employer from and against any loss, cost or expense incurred by Executive in
connection with any threatened, pending or completed action, suit or proceeding, by reason of the
fact that Executive is or was a director, officer or employee of Employer to the fullest extent
permitted under applicable law. Executive shall be entitled to advancement of expenses to the
fullest extent permitted under applicable law, subject to an undertaking by Executive to repay such
amounts if it is ultimately determined that Executive was not entitled to such advance or to any
such indemnification.
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20. Certain Waivers. The Executive hereby waives and disclaims any claim that the
appointment of Xxxxxxx as (i) interim receiver, receiver and manager of the assets, undertakings
and properties of RCL and RMI pursuant to the Receivership Order of the Ontario Superior Court of
Justice dated April 20, 2005, and (ii) monitor of RCL and RMI pursuant to the CCAA Initial Order of
the Ontario Superior Court of Justice dated April 20, 2005, constitutes a Change in Control for
purposes of this Agreement. The Executive covenants and agrees that he will not bring, assert or
maintain any claim that the appointment of Xxxxxxx as receiver and monitor or RCL and RMI as
described above constitutes a Change in Control for purposes of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have set their signatures on the date first written above.
SUN-TIMES MEDIA GROUP, INC., | ||||
a Delaware corporation | ||||
By: | /s/ Cyrus X. Xxxxxxxxx, Xx. | |||
Its: President and Chief Executive Officer | ||||
XXXXX X. XXXXXXXXX | ||||
/s/ Xxxxx X. XxXxxxxxx | ||||
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