EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of June, 1996, by and between BENEDEK
BROADCASTING CORPORATION, a Delaware corporation, with offices at 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (hereinafter called the "Company") and XXXXXXXX
X. XXXXXX, residing at 0000 Xxxx 0xx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000
(hereinafter called "Executive").
W I T N E S S E T H
WHEREAS, the Company desires to employ Executive and Executive is willing
to undertake such employment on the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Employment. The Company hereby employs Executive as its Senior Vice
President to perform such supervisory or executive duties on behalf of the
Company as the President, Chief Executive Officer or Board of Directors of the
Company may from time to time determine.
2. Duties. Executive hereby accepts such employment and agrees that
throughout the period of his employment hereunder, he will devote his full time,
attention, knowledge and skills, faithfully, diligently and to the best of his
ability, in furtherance of the business of the Company, will perform the duties
assigned to him pursuant to Paragraph 2 hereof, subject, at all times, to the
direction and control of the President, Chief Executive Officer and the Board of
Directors of the Company. Executive shall at all times be subject to, observe
and carry out such rules, regulations, policies, directions and restrictions as
the Company shall from time to time establish. During the period of his
employment hereunder, Executive shall not, without the written approval of the
Board of Directors first had and obtained in each instance, directly or
indirectly accept employment or compensation from or perform services of any
nature for, any business enterprise other than the Company and its subsidiaries.
During the period of Executive's employment hereunder, Executive shall not be
entitled to additional compensation for serving in any office of the Company or
any of its subsidiaries to which he is elected.
3. Term. Executive shall be employed for a term of three years commencing
as of the 1st day of June, 1996, and ending on the 31st day of May 1999, unless
his employment is terminated prior to the expiration of said term pursuant to
the provisions hereof. After the expiration of the term, the employment of the
Executive shall continue "at will" until terminated for any reason by either
Executive or the Company upon 90 days' prior written notice.
4. Compensation. As full compensation for his services hereunder, the
Company will pay to Executive the following:
4.1 Salary. A base salary at the rate of $150,000 (the "Initial Base
Salary") per annum during 1996 and such amount not less than the Initial Base
Salary as the Company and Executive may agree upon as to each year thereafter.
The Company shall pay Executive the base salary
-1-
in accordance with the Company's normal payroll practices. Executive shall also
be eligible to receive a bonus in respect of each fiscal year of the term of
this Agreement in such amount as the Company may define.
4.2 Stock Options and/or Stock Appreciation Rights. Executive shall be
eligible to receive stock options and/or stock appreciation rights in accordance
with the terms of any plan therefor adopted by the Company. Executive
acknowledges that the Company does not currently maintain any such plan and is
under no obligation to institute or continue the existence of any such plan and
may from time to time amend, modify or terminate any such plan.
4.3 Additional Benefits. During the term of this Agreement, the
Company shall (i) provide Executive with a suitable car for his use in the
performance of his duties for the Company and for his personal use, (ii)
reimburse Executive for the annual dues for membership in one country club and
such civic organizations as the Company and Executive may agree upon, and (iii)
reimburse Executive for costs incurred in connection with a telephone and fax
machine located in his home. Executive shall also be entitled to participate, to
the extent he is eligible under the terms and conditions thereof, in any
pension, profit-sharing, retirement, hospitalization, insurance, medical
service, or other employee benefit plan generally available to the executives of
the Company which may be in effect from time to time during the period of his
employment hereunder, it being understood that the Company shall pay the entire
cost of any health insurance or disability insurance maintained by the Company
for Executive in accordance with the Company's policies generally in effect.
Except for such health insurance and disability insurance, the Company shall be
under no obligation to institute or continue the existence of any such employee
benefit plan and may from time to time amend, modify or terminate any such
employee benefit plan.
4.4 Vacations. Executive shall be entitled to a paid vacation (in
addition to Company-wide holiday periods) during the period of his employment by
the Company in accordance with the Company's vacation policies for employees of
comparable level, as in effect from time to time, such vacation to be taken at
times consistent with Executive's duties to the Company and with the prior
approval of the President of the Company. Executive's employment by the Company
in any year is not a precondition to Executive's entitlement to vacation time in
the year subsequent thereto.
5. Reimbursement. The Company shall reimburse Executive for all expenses
reasonably incurred by him in connection with the performance of his duties
hereunder and the business of the Company, upon the submission to the Company of
appropriate vouchers therefor, provided that such expenses shall in all events
be incurred in accordance with and within applicable limits under the Company's
expense reimbursement policy in effect from time to time.
6. Non-Compete.
6.1 In consideration of the Company's entering into this Agreement,
Executive agrees that during the period of his employment hereunder, he will not
(i) directly or indirectly own, manage, operate, join, control, participate in,
invest in, or otherwise be connected with, in any manner, whether as an officer,
director, employee, partner, investor or otherwise, any business entity which is
engaged in any business in which the Company or any of its subsidiaries is
currently engaged or is engaged at any time during the period of Executive's
employment hereunder, or (ii) for himself or on behalf of any other person,
partnership, corporation or entity, call on any customer of the Company for
-2-
the purpose of soliciting, diverting or taking away any customer from the
Company. Nothing herein contained shall be deemed to prohibit Executive from
investing his funds in securities of a company if the securities of such company
are listed for trading on a national stock exchange or traded in the
over-the-counter market and Executive's holdings therein represent less than one
(1%) percent of the total number of shares or principal amount of other
securities of such company outstanding.
6.2 Executive shall not, during the full term of this Agreement and
for a period of one year thereafter, for himself or on behalf of any other
person, partnership, corporation or entity, directly or indirectly, or by action
in concert with others (a) solicit, induce, or encourage any person known to him
to be an employee of the Company or any affiliate of the Company to terminate
his or her employment or other contractual relationship with the Company or any
of its affiliates; (b) solicit, induce or encourage any person known by him to
have a contractual relationship with the Company to discontinue, terminate,
cancel or refrain from entering into any contractual relationship with the
Company or any of its affiliates; (c) directly or indirectly own, manage,
operate, join, control, participate in, invest in, or otherwise be connected
with, in any manner, whether as an officer, director, employee, partner,
investor or otherwise, any business entity which owns, manages, operates,
controls or is otherwise connected with, in any manner, a television station in
any designated market area (as defined by Xxxxxxx) then served by a television
station then owned by the Company or any of its affiliates; or (d) in any way
solicit or attempt to solicit the business or patronage of any person, firm,
corporation, partnership, association or other entity, whose business the
Company has enjoyed during Executive's tenure with the Company ("customers") or
otherwise induce such customers of the Company to reduce, terminate, restrict or
otherwise alter their business relationships with the Company in any fashion.
6.3 Executive acknowledges that the provisions of this Paragraph 6 are
reasonable and necessary for the protection of the Company, and that each
provision, and the period or periods of time, geographic areas and types and
scope of restrictions on the activities specified herein are, and are intended
to be divisible. In the event that any provision of this Paragraph 6, including
any sentence, clause or part hereof, shall be deemed contrary to law or invalid
or unenforceable in any respect by a court of competent jurisdiction, the
remaining provisions shall not be affected, but shall, subject to the discretion
of such court, remain in full force and effect and any invalid and unenforceable
provisions shall be deemed, without further action on the part of the parties
hereto, modified, amended and limited to the extent necessary to render the same
valid and enforceable.
7. Confidentiality. Executive shall hold in a fiduciary capacity for the
benefit of the Company all information, knowledge and data relating to or
concerned with its operations, sales, business and affairs, and he shall not, at
any time hereafter, use, disclose or divulge any such information, knowledge or
data to any person, firm or corporation other than to the Company or its
designees or except as may otherwise be required in connection with the business
and affairs of the Company.
8. Property Rights. Any invention, improvement, design, development or
discovery conceived, developed, created or made by Executive alone or with
others, during the period of his employment hereunder and applicable to the
business of the Company, whether or not patentable or registrable, shall become
the sole and exclusive property of the Company. Executive shall disclose the
same promptly and completely to the Company and shall, during the period of his
employment hereunder and at any time from time to time thereafter (i) execute
all documents requested by the Company for vesting in the Company the entire
right, title and interest in and to the same, (ii) execute all documents
requested by the Company for filing and prosecuting such applications for
patents, trademarks and/or copyrights as the Company, in its sole discretion,
may desire to prosecute, and (iii)
-3-
give the Company all assistance it reasonably requires, including the giving of
testimony in any suit, action or proceeding, in order to obtain, maintain and
protect the Company's right therein and thereto.
9. Remedies. The parties hereto acknowledge that Executive's services are
unique and that, in the event of a breach or a threatened breach by Executive of
any of his obligations under this Agreement, the Company will not have an
adequate remedy at law. Accordingly, in the event of any such breach or
threatened breach by Executive, the Company shall be entitled to such equitable
and injunctive relief as may be available to restrain Executive and any
business, firm, partnership, individual, corporation or entity participating in
such breach or threatened breach from the violation of the provisions hereof.
Nothing herein shall be construed as prohibiting the Company from pursuing any
other remedies available at law or in equity for such breach or threatened
breach, including the recovery of damages and the immediate termination of the
employment of Executive hereunder.
10. Termination.
10.1 For Cause. In addition to any other rights and remedies provided
by law or this Agreement, the Company may terminate Executive's employment
hereunder forthwith upon written notice for "cause". For purposes of this
paragraph, "cause" shall include: (i) commission of any act of material fraud or
gross negligence by Executive in the course of his employment hereunder which,
in the case of gross negligence, has a materially adverse effect on the business
or financial condition of the Company; (ii) willful misrepresentation at any
time during the term hereof by Executive to any superior executive officer of
the Company; (iii) voluntary termination by Executive of his employment or
failure, refusal or neglect by Executive to comply with any of his material
obligations hereunder or failure by Executive to comply with a reasonable
instruction of superior officers of the Company, which failure, refusal or
neglect, if curable, is not fully and completely cured to the reasonable
satisfaction of the Company promptly upon written notice to Executive; (iv)
engagement by Executive in any conduct or the commission by Executive of any act
which is, in the reasonable opinion of the Company, materially injurious or
detrimental to the substantial interest of the Company; (v) engagement by
Executive in any act, whether with respect to his employment or otherwise, which
is in violation of the criminal laws of the United States or any state thereof
or any similar foreign law to which he may be subject involving acts of moral
turpitude; or (vi) death or disability of Executive. In the event of Executive's
death during the term of this Agreement, the Company shall pay to Executive's
surviving spouse, if any, or if Executive does not have a surviving spouse, to
his then living children, if any, in equal shares, a monthly payment in an
aggregate amount equal to Executive's then current monthly base salary for a
period of six months after the date of Executive's death; provided, however,
that if Executive does not have a surviving spouse or children, then no such
payments shall be due. Executive shall be deemed disabled if he shall be unable
by reason of mental or physical incapacity from performing his duties hereunder
for a period of 45 consecutive days or an aggregate of 60 days in any
consecutive three-month period. If Executive's employment by the Company shall
be terminated pursuant to this Paragraph, Executive shall be entitled to receive
only the base salary actually earned and payable to him through the date of the
termination of his employment, together with any approved unreimbursed expenses
and other accrued employee benefits (as described above) through the date of
termination, and he shall not thereafter be entitled to receive any further
salary, bonus, expenses, benefits or other compensation of any kind hereunder.
10.2 Without Cause.
10.2.1 If the Company shall terminate Executive's employment
other than (i) pursuant to Paragraph 10.2.2 or (ii) for "cause" as provided in
Paragraph 10.1 above, Executive shall be entitled to receive, as damages, and as
his sole and exclusive right and remedy on account of such
-4-
termination, the base salary to which he would otherwise have been entitled
under this Agreement throughout the remaining portion of the term. Executive
shall also be entitled to receive any approved unreimbursed business expenses
and other employee benefits (as described above) to the date of termination. The
willful and material breach by the Company of any of its material obligations
under this Agreement, which breach is not fully cured promptly upon written
notice to the Company shall, at Executive's election, constitute a termination
of this Agreement by the Company without cause pursuant to the provisions of
this Paragraph 10.2.1.
10.2.2 In addition to any other rights and remedies provided by
law or in this Agreement, at any time prior to a Change of Control (as defined
in the Indenture dated as of March 1, 1995 with respect to the Company's
outstanding 11 7/8% Senior Secured Notes) the Company may terminate Executive's
employment hereunder without cause upon six months' written notice. If the
Company shall terminate Executive's employment pursuant to this Paragraph
10.2.2, Executive shall be entitled to receive, as damages, and as his sole and
exclusive right and remedy on account of such termination, the base salary to
which he would otherwise have been entitled under this Agreement through the
effective date of termination. Executive shall also be entitled to receive any
approved unreimbursed business expenses and other employee benefits (as
described above) to the date of termination.
10.2.3 Amounts payable by the Company under this Paragraph 10.2
shall be payable when and as the same would otherwise have been payable under
the terms hereof and shall be subject to Executive's duty to mitigate his
damages by using reasonable efforts to seek other comparable employment.
Compensation (in whatever form) earned by Executive on account of other
employment during the unexpired portion of the term of this Agreement or through
the effective date of termination, as the case may be (without regard to when
such compensation is paid), shall be applied in reduction of the Company's
obligations hereunder. Executive shall not otherwise be entitled to receive any
further salary, bonus, expenses, benefits or other compensation hereunder.
11. Executive's Representations and Warranties. Executive represents and
warrants to the Company that (i) Executive has the unfettered right to enter
into this Agreement on the terms and subject to the conditions hereof, and (ii)
neither the execution and delivery of this Agreement by Executive nor the
performance by Executive of any of Executive's obligations hereunder constitute
or will constitute a violation or breach of, or a default under, any Agreement,
arrangement or understanding, or any other restriction of any kind, to which
Executive is a party or by which Executive is bound.
12. Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings among the parties or any of them. There are
no representations, warranties, agreements or understandings other than
expressly contained herein. No termination, alteration, modification, variation
or waiver of this Agreement or any of the provisions hereof shall be effective
unless in writing and signed by the party against whom enforcement thereof is
sought.
-5-
13. Notice. Any notice required, permitted or desired to be given pursuant
to any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if sent by certified or registered
mail, return receipt and postage prepaid, hand delivered, overnight delivery
service or sent by telephone facsimile as follows:
If to the Company, to it at:
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile: 000-000-0000
with a copy to:
Xxxx X. Xxxxxxx
Shack & Xxxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
If to Executive, to him at:
0000 Xxxx 0xx Xxxxxx
Xxxxxx, Xxxxxxxxx 00000
Either of the parties hereto may at any time and from time to time change the
address to which notice shall be sent hereunder by notice to the other party
given under this Paragraph 13. The date of the giving of any notice sent by mail
shall be the date of the posting of the mail.
14. Assignment. Neither this Agreement nor the right to receive any
payments hereunder may be assigned by Executive. It is the intention of the
parties hereto that Executive remain employed pursuant to the provisions hereof
by any successor of the Company, whether by merger, consolidation, acquisition
of all or substantially all of the business or assets, or otherwise, and the
Company shall have the right to assign this Agreement to any such successor in
interest. This Agreement shall be binding upon Executive, his heirs, executors
and administrators and upon the Company, its successors and assigns.
15. Waiver. No course of dealing nor any delay on the part of the Company
in exercising any rights hereunder shall operate as a waiver of any such rights.
No waiver of any default or breach of this Agreement shall be deemed a
continuing waiver or a waiver of any other breach or default.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois applicable to agreements
executed and to be performed entirely therein and each party hereto, by their
execution of this Agreement, hereby consents to the personal jurisdiction of the
courts of the State of Illinois and the Federal courts located within such State
in connection with any dispute arising under or related to this Agreement and
further agrees that service of process in any such action may be made by
certified mail to the address set forth herein.
17. Severability. Should any clause, paragraph or part of this Agreement be
held or declared to be void or illegal for any reason, all other clauses,
paragraphs or parts of this Agreement
-6-
which can be effected without such illegal clause, paragraph or part shall
nevertheless remain in full force and effect. If, in the opinion of any court,
any clause, paragraph or part of this Agreement is unreasonable or
unenforceable, such court shall have the right, power and authority to excise or
modify such provisions, or portions thereof, of this Agreement as to the court
shall not be reasonable or enforceable and to enforce the remainder of such
clause, paragraph or part as so excised or modified.
18. Binding Effect. This document is not intended to constitute an
agreement, commitment, or offer of employment binding upon the Company until and
unless executed on behalf of the Company, as provided below, and no
representative of the Company has authority to make any commitment or to give
any assurance to the contrary.
19. Headings. The headings of the paragraphs of this Agreement are inserted
for convenience only and shall not constitute a part hereof or affect in any way
the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
BENEDEK BROADCASTING CORPORATION
By: /s/ K. Xxxxx Xxxxx
----------------------------
/s/ Xxxxxxxx X. Xxxxxx
---------------------------
Xxxxxxxx X. Xxxxxx
-7-
