EXHIBIT 10(d)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 17th day of April, 2001,
between Xxx Radio and Television, Inc., an Ohio corporation (the "Corporation"),
and Xxxxxxxx Xxxxxxx (the "Employee").
Recitals
A. The Corporation and Employee entered into Employment
Agreements dated July 17, 1984, December 1, 1989, January 1, 1993
January 1, 1994, September 1, 1995, and October 14, 1998;
B. The Corporation and Employee now desire to agree to
substantially the same terms in order to continue Employee's position
with the Corporation;
C. Employee desires to accept such employment on the basis of
the mutual benefits and covenants contained herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
ARTICLE I - DUTIES OF EMPLOYEE
1.1 Duties of Employee. Employee shall be employed as President and
Chief Operating Officer of the Corporation, for the period set forth in Article
II below. Employee shall be subject to the supervision of the Board of Directors
of the Corporation, and shall perform those executive, operational and
administrative duties normally performed by the President and Chief Operating
Officer of a corporation.
1.2 Engaging in Other Employment. Employee shall devote a substantial
portion of his business time, energies, attention and abilities to the business
of the Corporation; provided, however, that Employee shall not be prohibited
from: (i) making investments in other businesses; and (ii) actively
participating in the operation of any business within which he has invested.
1.3 Additional Duties. In addition to the foregoing duties, Employee
shall perform such other work as may be assigned to him from time to time
subject to the instructions, directions and control of the Board of Directors.
ARTICLE II - TERM OF EMPLOYMENT
2.1 Term. The Corporation shall employ Employee commencing as of the
1st day of January, 2003, and continuing for a period of three (3) years through
December 31, 2005 (the "Employment Period") and any renewal period provided for
in Section 2.2 below unless earlier terminated by Employee's: (i) resignation;
(ii) death; (iii) total disability; or (iv) termination of employment, as
provided in Article VI. "Total disability" shall mean such disability as shall
render Employee incapable of performing substantially all of his duties for the
Corporation as determined by any two qualified physicians chosen by the
Corporation.
2.2 Renewal Term. The terms and conditions of this Employment Agreement
shall automatically renew, without any further action by either party required,
upon the expiration of the Employment Period and any period of renewal for
subsequent one (1) year periods unless (i) notice of termination is provided to
the other party at least 180 days prior to the expiration of the Employment
Period or any period of renewal or (ii) this Employment Agreement is otherwise
terminated pursuant to Article VI.
ARTICLE III - COMPENSATION AND EXPENSES
3.1 Compensation. Employee shall receive as compensation for services
rendered under this Agreement a base salary of One Hundred Fifty Four Thousand
Five Hundred Dollars ($154,500.00) per year, payable in equal monthly
installments of Twelve Thousand Eight Hundred Seventy Five Dollars ($12,875.00)
per month on the last working day of each month (or such more frequent dates as
the Corporation may choose), and prorated for any partial monthly period.
3.2 Expenses. Employee is authorized to incur reasonable expenses in
connection with the performance of his duties for the Corporation, including
expenses for entertainment of customers, travel, and similar business purposes.
The Corporation will reimburse Employee for all such expenses upon the
presentation of an itemized account of such expenditures and approval of the
expenditures by a designated officer. In incurring reasonable business expenses,
Employee shall conform to the policies of the Corporation as adopted by the
Board of Directors from time to time.
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ARTICLE IV - EMPLOYEE BENEFITS AND BONUSES
4.1 Employee Benefit Plans. Employee shall be entitled to participate
in any qualified pension plan, qualified profit-sharing plan, medical and dental
reimbursement plan, group term life insurance plan, and any other employee
benefit plan which may be established by the Corporation, such participation to
be in accordance with the terms of any such plan.
4.2 Bonus. In addition to Employee's salary as provided in Section 3.1,
Employee may be paid a cash bonus as determined in the sole discretion of the
Board of Directors of the Corporation, any such bonus to be commensurate with
the effort and achievement of Employee on behalf of the Corporation.
4.3 Vacation. Employee shall be entitled to eight (8) weeks of vacation
during each 12-month period of the Employment Period or any period of renewal at
full pay; provided, however, that no portion of a vacation not taken in any
12-month period may be taken in any other 12-month period. The time for such
vacation shall be selected by Employee. Employee shall not be entitled to
vacation pay in lieu of vacation.
ARTICLE V - NONDISCLOSURE AND NONCOMPETITION
5.1 Confidential Information. Employee agrees to keep secret and
confidential the Confidential Information (as defined below) and shall not use
or disclose said information, either during or after his employment with the
Corporation, for any purpose not authorized by the Corporation. Upon termination
of his employment with the Corporation, Employee shall leave with the
Corporation all records, including all copies thereof, containing any
Confidential Information, including, but not limited to, such documents as
memoranda, notes, records, reports, customer lists, manuals, drawings,
blueprints and maps. "Confidential Information" means information about the
Corporation and any of its subsidiaries which is disclosed to Employee or known
by him as a consequence of or through his work with or on behalf of the
Corporation (including information conceived, originated, discovered, or
developed by him) not generally known about the Corporation, including, but not
limited to, matters of a technical nature, such as "know-how," innovations,
research projects, methods, and matters of a business nature, such as
information about costs, profits, markets, sales, lists of customers, suppliers,
business processes, computer programs, accounting methods, information systems,
business or marketing, financial plans and reports and any other information of
a similar nature.
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5.2 Restrictions on Competition. During the term of this Agreement and
for a period of two years after termination of Employee's employment with the
Corporation, for any reason, Employee shall not directly or indirectly, either
as an employee, employer, consultant, agent, principal, partner, stockholder,
corporate officer, director, or in any other individual or representative
capacity, engage or participate in any business that is (i) in competition in
any manner whatsoever with the business of the Corporation within 100 miles of
any store operated by the Corporation or its affiliates at the time of
Employee's termination; or (ii) the owner or operator of a retail business
similar to that of the Corporation within 100 miles of any store operated by the
Corporation or its affiliates at the time of Employee's termination.
5.3 Saving. In the event any provision of this Article V shall be held
invalid, illegal, or unenforceable, the remaining provisions shall in no way be
affected thereby, and shall continue in full force and effect. If, moreover, any
one or more of the provisions contained in this Article V shall for any reason
be held to be excessively broad as to time, duration, geographical scope,
activity or subject, it shall be construed, by limiting and reducing it, so as
to be enforceable to the extent compatible with the applicable law as it shall
then appear.
ARTICLE VI - TERMINATION
6.1 Termination of Employment with Cause. The Corporation may at any
time terminate Employee's employment for cause. Such termination of employment
for cause shall not prejudice any other remedy to which the Corporation may be
entitled either at law, in equity, or under this Agreement. "Termination of
employment for cause" shall mean termination upon: (i) Employee's repeated
failure or refusal to perform his duties hereunder faithfully, diligently,
competently and to the best of his ability for reasons other than serious
disability or other incapacity; (ii) Employee's violation of any material
provision of this Agreement; or (iii) Employee's clear and intentional violation
of a state or federal law of which he is aware or should have been aware: (a)
involving the commission of a felonious crime against the Corporation which has
a materially adverse effect upon the Corporation; or (b) involving a felony
other than against the Corporation having a materially adverse effect upon the
Corporation, as determined in either case in the reasonable judgment of the
Board of Directors.
6.2 Termination by Either Party. This Agreement may be terminated by
either party with or without cause upon 180 days notice.
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6.3 Effect of Termination on Compensation. In the event this Agreement
is terminated prior to the completion of the Employment Period or any period of
renewal, Employee shall be entitled to the compensation earned by him prior to
the date of termination as provided for in this Agreement computed pro rata up
to and including that date. Employee shall be entitled to no further
compensation as of the date of termination.
6.4 Effect of Termination on Bonus Plans. In the event of the
termination of this Agreement prior to the completion of the Employment Period
or any period of renewal, Employee shall automatically and completely forfeit
any rights which he may have under any bonus plan established by the
Corporation.
ARTICLE VII - WAIVER OF BREACH
7.1 Effect of Waiver. Waiver by the Corporation of any condition, or of
the breach of Employee of any term or covenant contained in this Agreement,
whether by conduct or otherwise, in any one or more instances shall not be
deemed to be or construed as a further or continuing waiver of any such
condition or to be a waiver either of any other condition or of the breach of
any other term or covenant of this Agreement. The failure of the Corporation at
any time or times to require performance of any provision hereof shall in no
manner affect its rights at a later time to require the same.
ARTICLE VIII - MISCELLANEOUS
8.1 Notices. All notices and other communications by any party hereto
shall be made in writing to the other party and shall be deemed to have been
duly given when mailed by United States certified mail, with postage prepaid,
addressed as the parties hereto may designate from time to time in writing.
8.2 Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of Employee by the Corporation, and contains all of the
covenants and agreements between the parties with respect to such employment in
any manner whatsoever.
8.3 Assignability. Neither this Agreement, nor any duties or
obligations hereunder shall be assignable by Employee without the prior written
consent of the Board of Directors of the Corporation.
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8.4 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
8.5 Captions. The captions in this Agreement are inserted for
convenience only and shall not be considered part of or affect the construction
or interpretation of any provision of this Agreement.
8.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
XXX RADIO AND TELEVISION, INC.
By:/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Secretary
EMPLOYEE:
/s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx
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