Exhibit 10.2
BIG CITY RADIO, INC.
C/O METROMEDIA COMPANY
XXX XXXXXXXXXXX XXXXX
XXXX XXXXXXXXXX, XXX XXXXXX 00000
As of December 24, 1997
Xx. Xxxxxxx Xxxxxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Dear Xxxxxxx:
When executed by you and by BIG CITY RADIO, INC., a Delaware
Corporation (the "Company"), this letter agreement (the "Agreement") shall amend
and restate in its entirety the letter agreement dated as of October 17, 1994,
as amended and supplemented, between you and the Company for your employment
with the Company, to read as follows:
1. (a) The Company hereby employs you as its President and Chief
Executive Officer for a term ending on December 31, 2000 (the "Term") or such
earlier time as your employment may be terminated by you or by the Company as
provided in this Agreement.
(b) The Company may terminate your employment for cause at any
time effective upon the date specified in a written notice of such termination
delivered to you. The term "for cause" shall mean and include, but shall not be
limited to, any of the following events:
(i) fraud, misappropriation or embezzlement of funds or
property by you involving (x) the Company, (y) any of the radio broadcast
stations that the Company may own from time to time (the "Stations"), or
(z) any Affiliated Company (as defined in paragraph 5 of this Agreement);
(ii) your indictment or conviction in any jurisdiction for
any crime which constitutes a felony, or which constitutes a misdemeanor
that involves fraud, moral turpitude or material loss to the Company, any
Station or any Affiliated Company, or their respective businesses or
reputations; provided, however, that if your employment is terminated based
on your arrest for any such crime and you are subsequently found to be not
guilty or all charges are dismissed for any such crime, your termination
shall be considered to have been made without cause and you shall be
entitled to the payments and benefits specified in paragraph 1(d) hereof;
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(iii) your misconduct in, or neglect of, the performance of
your duties and responsibilities hereunder, or your violation of any
specific lawful direction of the Board of Directors of the Company or its
Chairman of the Board of Directors;
(iv) your breach of any material provision of this Agreement
which breach continues uncured for a period of ten (10) days after written
notice thereof is given to you by the Company.
(c) If you are unable to perform your duties hereunder by reason
of illness or disability, as determined by a doctor selected by the Company,
which inability continues for a period of ninety (90) consecutive days or more
or any ninety (90) days or more within any one hundred eighty (180) day period,
then at any time thereafter while such inability continues, the Company may
terminate your employment hereunder by giving you written notice thereof.
(d) The Company shall have the right, at any time, to terminate
your employment without cause, by providing written notice delivered to you at
least thirty (30) days prior to the effective date of such termination. If your
employment is terminated by the Company without cause, the Company shall pay you
a severance payment in an amount equal to eighteen times your base monthly
salary at the time of termination and, in addition, your employment-related
benefits shall continue until eighteen (18) months subsequent to the date of
your termination (such severance payment and employment-related benefits are
collectively referred to as "Severance Payments"). Upon mutual agreement of the
Company and you, Severance Payments due to you pursuant to this paragraph 1(d)
may be made in a lump sum at the time of termination. If your employment is
terminated by the Company for cause as defined in Section 1(b) above or
disability, the Company shall have no obligations to you for severance payments
or continuation of employment-related benefits. You shall receive the payments
in this paragraph 1(d) regardless of whether you obtain any other compensation
or benefits from the Company or any other employment.
(e) (i) If there is a Change of Control (as defined below) of
the Company, you shall have the right, at any time within ninety (90) days
following the occurrence of such Change of Control, to terminate your employment
hereunder, by written notice to the Company, effective upon the date specified
in such notice, for any reason or for no reason whatsoever. Upon a Change of
Control and your election to terminate your employment as provided herein, the
Company shall pay you as severance pay, an amount equal to the Severance
Payments. Fifty percent (50%) of the amounts payable to you under this section
1(e) (the "Change of Control Compensation") shall be payable in a lump sum to
you within thirty (30) days of the termination of your employment due to a
Change of Control hereunder, and the balance of such Change of Control
Compensation shall be payable in ten (10) equal and consecutive monthly
installments, commencing thirty (30) days after payment of the aforementioned
payment. Upon mutual agreement between the Company and
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you, all payments may be made in a lump sum within thirty (30) days of
termination of your employment. You shall have no obligation to mitigate the
Company's obligation to pay the Change of Control Compensation by offsetting
against such payment obligation any income received by you from other employment
following termination of your employment with the Company.
(ii) For purposes of this Agreement, a "Change of Control"
of the Company shall be deemed to have occurred (i) when all or substantially
all of the assets of the Company are sold, leased, exchanged or otherwise
transferred to any person or entity or group of persons or entities acting in
concert other that a Permitted Holder (as defined below) or a Wholly-Owned
Subsidiary (as defined below) of the Company, (ii) when the Company is merged or
consolidated with or into another entity with the effect that stockholders of
the Company immediately prior to such merger or consolidation hold less than 50%
of the combined voting power of the then outstanding securities of the surviving
entity of such merger or the entity resulting from such consolidation ordinarily
(and apart from rights arising under special circumstances) having the right to
vote in the election of directors, (iii) on the first day within any two-year
period on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors (as defined below) or on the first day upon
which you cease to be a Director other than in connection with the termination
of this Agreement by the Company or you, or (iv) when any person or entity or
group of persons or entities acting in concert, other than Permitted Holders,
becomes the beneficial owner, directly or indirectly of more than 50% of the
combined voting power of the then outstanding securities of the Company having
the right to vote in the election of directors.
(iii) "Permitted Holder" shall include only the following
persons: (w) Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx and their respective estates,
guardians, conservators or committees; (x) each descendant of Xxxxxx Xxxxxxxxx
or Xxxxx Xxxxxxxxx (a "Xxxxxxxxx Descendant") and their respective estates,
guardians, conservators or committees; (y) each Subotnick Family Controlled
Entity (as defined below); and (z) the trustees, in their respective capacities
as such, of each Subotnick Family Trust (as defined below).
(iv) "Subotnick Family Controlled Entity" means (w) any
not-for-profit corporation if at least a majority of its board of directors is
composed of Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx and/or Subotnick Descendants;
(x) any other corporation if at least a majority of the value of its outstanding
equity is owned by Permitted Holders; (y) any partnership if at least a majority
of the economic interest of its partnership interests is owned by Permitted
Holders; and (z) any limited liability or similar company if at least a majority
of the economic interest of the company is owned by Permitted Holders.
(v) "Subotnick Family Trust" includes trusts the primary
beneficiaries of which are Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxxxx
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Descendants, Stuart or Xxxxx Xxxxxxxxx'x siblings, spouses of Subotnick
Descendants and their respective estates, guardians, conservators or committees
and/or charitable organizations (collectively, "Subotnick Beneficiaries"). For
purposes of this provision, the primary beneficiaries of a trust will be deemed
to be Subotnick Beneficiaries if, under the maximum exercise of discretion by
the trustee in favor of persons who are not Subotnick Beneficiaries, the value
of the interests of such persons in such trust, computed actuarially, is 50% or
less. The factors and methods prescribed in section 7520 of the Internal
Revenue Code of 1986, as amended, for use in ascertaining the value of certain
interests shall be used in determining a beneficiary's actuarial interest in a
trust for purposes of applying this provision. For purposes of this provision,
the actuarial value of the interest in a trust of any person in whose favor a
testamentary power of appointment may be exercised shall be deemed to be zero.
For purposes of this provision, in the case of a trust created by a Subotnick
Descendant, the actuarial value of the interest in such trust of any person who
may receive trust property only at the termination of the trust and then only in
the event that, at the termination of the trust, there are no living issue of
such Subotnick Descendant, shall be deemed to be zero.
(vi) "Wholly-Owned Subsidiary" means any corporation,
limited liability company, partnership or other entity of which all the
outstanding voting securities or similar interests are owned by the Company or
any Wholly-Owned Subsidiary of the Company or by the Company and a Wholly-Owned
Subsidiary of the Company.
(vii) "Continuing Director" means, as of the date of any
determination, any member of the Board of Directors of the Company who (x) was a
member of such Board of Directors on the date of this Agreement or (y) was
nominated for election or elected to such Board of Directors with, or whose
election to such Board of Directors was approved by, the affirmative vote of a
majority of the Continuing Directors who were members of such Board of Directors
at the time of such nomination or election or (z) is a designee of the Permitted
Holders or their affiliates or was nominated by the Permitted Holders or their
affiliates or any designees of the Permitted Holders or their affiliates on the
Board of Directors.
(f) Upon commencement of your employment, your responsibilities
shall include but not be limited to overseeing the broadcast operations of all
radio properties in the Company, directing and implementing all necessary
procedures to improve the overall positioning of the Stations and enhancing the
consolidated cash flow of the Stations, provided however, that the Board of
Directors of the Company shall have the right to change your responsibilities,
or assign you additional responsibilities, commensurate with your position as
President and Chief Executive Officer. You shall devote your entire working
time and best efforts to the faithful performance of the duties to which you are
assigned during the term of your employment to the exclusion of all other
employment for yourself or for others or any business activities which conflict
or interfere with your performance of duties
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hereunder. The Company shall not be obligated to utilize your services
hereunder and its entire obligation to you shall be fulfilled by making all of
the payments and providing all of the benefits due to you under Section 2 of
this Agreement. Your performance of duties hereunder shall be subject to the
direction, supervision and control of the Board of Directors of the Company or
the Chairman of the Board of Directors. You agree to accept and perform without
further consideration the duties of such offices, directorships, membership of
any committee of the Board of Directors and titles to which you are selected or
named by the Company. You shall perform your duties at such locations and shall
perform all travel requested by the Board of Directors of the Company or its
Chairman of the Board of Directors or otherwise necessary in the performance of
your duties.
(g) During your employment with the Company and, upon
termination of your employment for any reason and thereafter for a period of
eighteen (18) months (collectively, the "Non-Competition Period"), you shall
not, without the prior written consent of the Board of Directors or the Chairman
of the Board of Directors, which consent may be withheld in their sole
discretion, directly or indirectly, own, acquire or seek to acquire or obtain
any license for an AM or FM radio station in the "Territory", or render any
services or advice to, or in any way be engaged in, any AM or FM radio station
in the "Territory". For purposes of this Agreement, the "Territory" means the
area within seventy-five (75) miles of the transmitter for any (i) radio station
owned or operated by the Company or (ii) any radio station which the Company has
conducted due diligence, market research, otherwise investigated the acquisition
or potential acquisition of, during the employment period.
(h) You represent and warrant to the Company that you have full
power and authority to execute, deliver and perform this Agreement and that the
execution, delivery and performance by you will not result in the breach of or
default under any other agreement to which you are a party or by which you are
bound, including but not limited to any employment agreement, or agreement to
not compete with any other person or entity.
(i) The Company represents and warrants to you that it has full
power and authority to execute, deliver and perform this Agreement and that the
execution, delivery and performance by it will not result in the breach of or
default under any other agreement to which it is a party or by which it is
bound, including but not limited to any employment agreement, or agreement not
to compete with any other person or entity.
(j) You represent and warrant that to the best of your
knowledge, information and belief, neither you nor any person acting on your
behalf has accepted or agreed to accept, or paid or agreed to pay, any money,
service or any valuable consideration, as defined in Section 508 of the
Communications Act of 1934, as amended (the "Communications Act"), for the
broadcast of any matter contained in
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any program on the Stations. You further covenant that during the Term hereof,
you will not accept or agree to accept (except from the Company) or pay or agree
to pay any money, service or any valuable consideration, as defined in Section
508 of the Communications Act, for the broadcast of any matter contained in any
program on the Stations.
2. (a) In consideration of and in full payment for the due and
faithful performance by you of your duties hereunder during your employment
pursuant to this Agreement the Company shall pay you and you agree to accept a
salary at the rate of three hundred thousand dollars ($300,000.00) per annum.
The Company shall pay your salary hereunder periodically on dates established by
the Company, but not less frequently than once a month. All payments under this
Agreement will be subject to all deductions and withholding required by law or
agreement of the parties.
(b) In addition to the salary payable to you hereunder, if the
"Consolidated Operating Cash Flow" of the Company for a calendar year should
exceed the levels specified in this Section 2(b), the Company shall pay you an
annual bonus as specified in this Section 2(b). "Consolidated Operating Cash
Flow" of the Company means operating revenue of the Company on a consolidated
basis less operating expenses, before depreciation, amortization, interest and
taxes, and excluding all extraordinary gains and losses. To determine the
annual bonus, if any, to be paid to you, the Consolidated Operating Cash Flow
for the calendar year then ended shall be compared to the consolidated budgeted
cash flow of the Company (the "Budgeted Cash Flow") for such year as shall be
determined for such year by the Board of Directors of the Company or any
compensation committee of the Board of Directors as the Board of Directors may
from time to time designate. If the Consolidated Operating Cash Flow for such
year is equal to at least ninety five percent (95%) but less than one hundred
percent (100%) of the Budgeted Cash Flow for such year, you shall be paid a
bonus of twenty thousand dollars ($20,000.00). If the Consolidated Operating
Cash Flow for such year is equal to one hundred percent (100%) or more of the
Budgeted Cash Flow for such year, you shall be paid a bonus of fifty thousand
dollars ($50,000.00), plus an additional bonus equal to fifty percent (50%) of
the amount by which the Consolidated Operating Cash Flow exceeds the Budgeted
Cash Flow for such year, provided that the maximum amount of the additional
bonus payable to you for a given calendar year shall not exceed twenty thousand
dollars ($20,000) and provided, further, that the total amount of bonus payments
(including additional bonus payments) payable to you for any given calendar year
shall not exceed seventy thousand dollars ($70,000). All bonus payments shall
be made no later than thirty (30) days following the completion of the annual
accounting closing of the Company's books. The Company shall make all
determinations of Consolidated Operating Cash Flow in accordance with GAAP,
which determinations will be final and binding. If your employment should
terminate prior to the end of a calendar year, your bonus payment for such year
shall be calculated based on the full calendar year, but you shall be paid on a
pro rata basis
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(i.e., a percentage determined by the number of days during the final year of
your employment with the Company in which you were employed divided by the total
number of days in such year).
(c) (i) As further consideration of the due and faithful
performance by you of your duties hereunder, you will be entitled to receive
during your employment pursuant to this Agreement, (i) 93,755 shares of Class A
Common Stock, par value $.01 per share, of the Company (the "Class A Common
Stock") if the average Closing Price (as defined below) of the Class A Common
Stock over a period of six consecutive months is equal to at least $8.40 per
share of Class A Common Stock, (ii) an additional 93,755 shares of Class A
Common Stock if the average Closing Price of the Class A Common Stock over a
period of six consecutive months is equal to at least $10.08 per share of Class
A Common Stock, and (iii) an additional 93,755 shares of Class A Common Stock if
the average Closing Price of the Class A Common Stock over a period of six
months is equal to at least $12.10 per share of Class A Common Stock; provided
that in no event will you be entitled to receive more than 281,265 shares of
Class A Common Stock in the aggregate pursuant to this Section 2(c). Any
issuance of 93,755 shares of Class A Common Stock pursuant to this provision
shall be referred to herein as an "Award" and any share of Class A Common Stock
issued to you hereunder shall be referred to herein as an "Incentive Security".
(ii) For purposes of this Agreement, the "Closing Price" on
any day means the reported closing sales price or, in the case no such sale
takes place, the average of the reported closing bid and asked prices on the
principal securities exchange on which such Class A Common Stock is listed, or
if such stock is not listed on any such exchange, the highest closing sales
price or bid quotations for such stock on the National Association of Securities
Dealers, Inc. Automated Quotations system ("NASDAQ") or any system on which the
Class A Common Stock is traded.
(iii) If there occurs any recapitalization, stock split,
reclassification or any other change of the Class A Common Stock of the Company,
or any consolidation or merger of the Company with or into another entity (other
than a merger or consolidation of the Company in which the Company is the
surviving entity and which does not result in any recapitalization, stock split,
reclassification or other change of its Class A Common Stock), then you will
thereafter be entitled to receive hereunder for each Incentive Security the same
kind and amount of securities (including shares of stock) or other assets, or
both, which were issuable or distributable to the holders of Class A Common
Stock for each of their shares of Class A Common Stock upon such
recapitalization, stock split, reclassification, consolidation, merger or other
change in respect of that number of Incentive Securities which you may be
entitled to receive hereunder as if such Incentive Securities had been issued
immediately prior to such recapitalization, reclassification, stock split,
consolidation, merger or other change; and, in any such case, appropriate
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adjustments (as determined in good faith by the Board of Directors of the
Company) shall be made to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably practicable, in relation to any Incentive
Securities which you may become entitled to receive hereunder.
(iv) You represent and warrant that the Incentive
Securities issuable to you pursuant to this Agreement will be received by you
for your own account and with no intention of distributing or reselling such
securities or any part thereof in any transaction that would be in violation of
the securities laws of the United States of America, or any state, without
prejudice, however, to your right at all times to sell or otherwise dispose of
all or any part of the Incentive Securities under an effective registration
statement under the Securities Act of 1933, as amended (the "Act"), or under an
exemption from such registration available under the Act, and subject,
nevertheless, to the disposition of the Incentive Securities being at all times
within your control. If you should in the future decide to dispose of any of
the Incentive Securities, you understand and agree that you may do so only in
compliance with the Act and applicable state securities laws, as then in effect.
(v) You agree to the imprinting of a legend on the
certificates representing the Incentive Securities to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH
ACT AND SUCH LAWS."
(vi) The Company agrees to include for registration the
Incentive Securities in any registration statement that it proposes to file
under the Act with respect to the shares of its Class A Common Stock that may be
issued pursuant to the Company's 1997 Incentive Stock Plan. The Company also
acknowledges that you are the owner of 1,125,062 shares of Class A Common Stock
that are entitled to certain registration rights pursuant to the Registration
Rights Agreement, dated as of December 23, 1997, between you, the Company and
certain stockholders named therein.
(vii) Any required withholding tax payable on the Incentive
Securities will be paid by you. It shall be a condition to the obligation of the
Company to deliver any of the Incentive Securities that you pay to the Company
such amount as may be requested by the Company for the purpose of satisfying any
liability for such withholding taxes. The Company may, upon the discretionary
determination of the Compensation Committee of the Company (or the Board of
Directors in the absence of such committee), permit you, in accordance with
applicable regulations of the authority issuing such regulations, to pay a
portion or all
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of the amount of such minimum required or additional permitted withholding taxes
in Incentive Securities. At the discretionary determination of the Compensation
Committee (or the Board of Directors in the absence of such committee), you
shall be permitted to authorize the Company to withhold, or shall agree to
surrender back to the Company, on or about the date such withholding tax
liability is determinable, Incentive Securities previously owned by you or a
portion of the Incentive Securities that were or otherwise would be distributed
to you pursuant to this Agreement, having an aggregate Closing Price equal to
the amount of such required or permitted withholding taxes to be paid in shares.
(d) You shall be entitled to reimbursement for reasonable and
necessary expenses incurred by you in connection with your employment, upon the
presentation of proper documentation therefore in accordance with the usual
procedures of the Company.
(e) During your employment with the Company you shall be
entitled to participate in and to receive benefits under and in accordance with
the provisions of any Company employee benefit plans, programs and arrangements
which may now or hereafter be available to senior executives of the Company, as
such plans, programs and arrangements may be in effect from time to time and for
which you qualify in accordance with the terms thereof. Except as otherwise
expressly provided herein, nothing contained herein is intended in any way to
obligate the Company to provide to you employee benefits of any description.
The Company shall have the sole and unlimited discretion to determine whether or
not to provide any employee benefits, and, if so, the nature, extent and costs
to the Company and/or employee of any employee benefits. In addition to the
foregoing, in the event of your death during the term of this agreement, your
rights and benefits under employee benefit plans shall be determined in
accordance with the terms and conditions of such plans.
(f) During your employment with the Company, the Company shall
provide directors' and officers' liability insurance, health and disability
insurance and medical coverage to you consistent with the programs provided to
other senior executives of the Company.
(g) During your employment with the Company, provided that you
are insurable at a reasonable cost and that you cooperate in obtaining the
insurance policy, the Company shall cause a term life insurance policy for you
to be issued in the amount of two million dollars ($2,000,000), the beneficiary
of which you are free to designate in your sole discretion.
(h) During your employment with the Company you shall be
entitled to take periodic vacations with pay aggregating three (3) weeks per
calendar year, provided that the Company has approved the dates of such
vacations, which approval shall not be unreasonably withheld and provided,
further, that you shall not
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be permitted to accrue more than fifteen (15) calendar vacation days until such
time as you have used up one (1) vacation day. Each time you reach the maximum
accrual level of fifteen (15) days, you shall not be permitted to accrue further
vacation time until another vacation day has been used. You shall also be
entitled to take official Company holidays with pay.
(i) During your employment with the Company the Company shall
pay for your leasing costs (including servicing, insurance and registration) for
a BMW 735iL or comparable automobile.
3. (a) For purposes of this agreement, "Invention" will mean
(i) any and all machines, apparatuses, compositions of matter, methods,
know-how, processes, designs, configurations, uses thereof, or writings of any
kind, discovered, conceived, developed, made or produced, or any improvement to
them, and will not be limited to the definition of any invention contained in
the United States patent laws; (ii) all matters subject to copyright protection
under United States copyright laws; (iii) all matters subject to trademark
protection under trademark laws of the United States or those of any state of
the United States or under common law of any jurisdiction within the United
States; and (iv) all matters subject to protection as trade secrets under the
laws or common law of any state of the United States or of the United States.
(b) You understand and agree that all Inventions, or patents,
trademarks, copyrights, trade secrets or any other rights relating to any of the
foregoing, which have or may have a material importance to the business of the
Company and which are conceived or made by you during your employment by the
Company, either alone or with others, are the sole and exclusive property of the
Company, whether or not they are conceived or made during your working time for
the Company, except to the extent generally known or knowable by persons
generally knowledgeable in the radio broadcasting field.
(c) You will immediately disclose to the Company any and all
improvements, discoveries, ideas and Inventions (whether or not patentable)
heretofore made (other than those which are the property of your previous
employers) or conceived by you while in the employ of the Company, or hereafter
made or conceived by you while in the employ of the Company, either alone or in
conjunction with others, whether or not made or conceived at the request or upon
the suggestion of the Company, whether or not resulting from any work done in
the course of your employment by the Company, and whether or not made or
conceived during or outside of the usual hours of employment or upon or not upon
any premises of the Company.
(d) You hereby assign and will hereafter assign to the Company
all present or future right, title and interest in and to all Inventions
referred
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to in subparagraphs (b) and (c) of this Section 3. You will not disclose any
such Inventions to any third party without the written consent of the Company.
(e) At any time and from time to time during and after your
employment by the Company, on the request of the Company, without further
consideration you will: (i) Execute specific documents of assignment in favor
of the Company, or its nominee, of any of the Inventions covered by this
Agreement; (ii) Execute all papers and perform all acts the Company considers
necessary or advisable for the preparation, application, procurement,
maintenance, enforcement, and defense of patent applications and patents of the
United States or other jurisdictions of such Inventions, for the perfection or
enforcement of any trademarks, copyrights or trade secrets relating to such
Invention, and for the transfer of any interest you may have in such Inventions;
and (iii) execute any and all papers and comments which the Company considers to
be necessary to vest sole right, title and interest in the Company or its
nominee in and to the above Inventions, patent applications, patents, or any
trademarks or copyright or applications therefore relating thereto.
Notwithstanding the foregoing after the term of this Agreement, unless your
employment was terminated for cause, in which case you agree to do so without
any compensation, you will be entitled to reasonable compensation for more than
incidental time and effort required to be expended by you to fulfill your
responsibilities under clause (ii) of this Section 3(e). You will execute all
documents (including those referred to above) and do all other acts which the
Company considers to be necessary to assist in the preservation of all the
Company's interests in such Inventions.
(f) You have identified on Schedule A attached hereto a complete
list of all Inventions which have been made or conceived or first reduced to
practice by you alone or in conjunction with others prior to your employment by
the Company and which you desire to exclude from the operation of this
Agreement.
4. (a) For purposes of this agreement, "proprietary information"
will mean any information relating to the business, operations or personnel of
the Company (including any of the Company's affiliates for the purposes of the
confidentiality provision of this agreement) that has not previously been
publicly released by a duly authorized representative of the Company and will
include but will not be limited to such information encompassed in all drawings,
designs plans, proposals, marketing and sales plans, financial information,
costs, pricing information, customer information, personnel information and all
methods, concepts, or ideas used in and which have or may have a material
importance to the business of the Company.
(b) You will regard, to the best of your ability, preserve as
confidential all proprietary information that has been may be obtained by you
during your employment by the Company or otherwise, whether you have such
information in your memory or in writing or other physical form. You will
neither use for your
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benefit or purposes nor disclose to others any proprietary information, either
during the term of this Agreement or thereafter, except as required by the
conditions of your employment hereunder. This provision will not apply to
proprietary information which has been voluntarily disclosed to the public by
the Company, for the benefit of the Company or upon its express authorization or
has been independently developed and disclosed by others who are not subject to
any obligations of confidentiality to the Company.
(c) You will not remove from the premises of the Company or
elsewhere, except as an employee of the Company in pursuit of the business of
the Company, any documents or objects containing or reflecting any proprietary
information or any other property of the Company. You recognize that all such
documents and objects, whether developed by you or by someone else, are the
exclusive property of the Company. Upon termination of your employment
hereunder you will forthwith deliver up to the Company all proprietary
information, including, without limitation, all correspondence, accounts,
records and any other documents or property made or held by you or under your
control in relation to the business or affairs of the Company, and no copy of
any such proprietary information will be retained by you.
(d) Except for such information which has been previously
disclosed to the general public without breaching any confidentiality agreement,
under no circumstances and at no time, during or after the term of your
employment, will you, directly or indirectly, disclose, divulge, render or offer
any knowledge or information with respect to any proprietary information, except
in the course of the proper performance of your duties hereunder and you
acknowledge and agree that any and all such information will be received by you
in confidential capacity.
5. You agree to perform your duties in full compliance with all
laws, rules and regulations of any governmental authority applicable to the
Company and its business or to any Affiliated Company or its business, to the
extent you are engaged in business on behalf of an Affiliated Company, or to the
performance of your duties pursuant to this Agreement. For purposes of this
Agreement, "Affiliated Company" means, with respect to the Company, any other
person that, directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the Company.
6. (a) You agree to comply with any and all the Company's policies,
regulations and procedures including but not limited to those which now or
hereafter may relate to the matters set forth in this Agreement. Periodically,
at the request of the Company, you also agree to execute and/or to respond
fully, truthfully, accurately and completely to all documents or questionnaires
as may be submitted to you in connection therewith.
13
(b) In the event of a breach or threatened breach by you of any
of the provisions of Sections 1(f), 1(g), 3, 4, 5, or 6(a) hereof, the Company
will be entitled to an injunction restraining you from the commission of such
breach, and any violation by you of any provision of any such sections will be
grounds for immediate termination of your employment hereunder for cause.
7. The Company may assign this agreement and all its rights
hereunder to any Affiliated Company or to a purchaser of all or substantially
all of the Company's stock or assets. You may not at any time assign this
Agreement nor any right or interest hereunder. Except as herein otherwise
provided, this Agreement will be binding upon and inure to the benefit of the
parties hereto, your legal representatives and the Company's successors and
assigns.
8. Any notice required or permitted to be given hereunder to the
parties will be in writing and will be delivered personally to you or to any
Vice President of the Company, or duly mailed to the other party by prepaid
registered or certified mail, return receipt requested, or by courier service
providing delivery receipts. Such duly mailed notice will be deemed given three
(3) days after the date of dispatch. The address for mailed notices will be (a)
for you, the address set forth on the first page of this Agreement, and (b) for
the Company: c/o Metromedia Company, Xxx Xxxxxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx,
Xxx Xxxxxx 00000, Attention: General Counsel. Either party may notify the other
party in writing of a change of address by serving notice in the manner provided
in this paragraph.
9. If any provision of this Agreement or the application thereof
will for any reason be invalid or unenforceable, such provision will be limited
only to the extent necessary in the circumstances to make such provision valid
or enforceable and its partial or total invalidity or unenforceability will in
any event not affect the remaining provision of this Agreement, which will
continue in full force and effect.
10. THIS AGREEMENT WILL BE CONSTRUED ACCORDING TO THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN THE
STATE OF NEW YORK. THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING BETWEEN
THE PARTIES, CANCELS AND SUPERSEDES ALL PRIOR ORAL OR WRITTEN UNDER-STANDINGS
AND AGREEMENTS BETWEEN THE PARTIES HERETO AND CANNOT BE CHANGED OR TERMINATED
ORALLY BUT ONLY BY AN INSTRUMENT IN WRITING SIGNED BY BOTH PARTIES HERETO.
11. The covenants, representations and warranties of this Agreement
will survive its execution, delivery and performance, and all accrued
obligations will survive its termination.
14
12. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
15
If this is in accordance with your understanding, kindly so indicate
by signing the enclosed copy of this letter in the space provided below and
returning the same to the undersigned.
Very truly yours,
BIG CITY RADIO, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title:Vice President and Chief
Financial Officer
ACCEPTED AND AGREED TO:
By: /s/ Xxxxxxx Xxxxxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxxxxx
Date: December 24, 1997
------------------------------
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SCHEDULE A
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Inventions
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None
