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EXHIBIT 10.34
EMPLOYMENT AGREEMENT
Agreement, made and entered into on the 26 day of August, 1998, by and
between PULITZER INC., a Delaware corporation with its principal offices in St.
Louis, Missouri (the "Company"), and XXXXX XXXXX, a resident of the State of
Missouri ("Xxxxx").
1. Employment. The Company will employ Xxxxx, and Xxxxx will be
employed by the Company, upon the terms and conditions set forth in this
Agreement.
2. Term of Employment. Xxxxx'x employment under this Agreement will
begin immediately following the closing (the "Closing") of the transactions
contemplated by the Agreement and Plan of Merger dated May 25, 1998, by and
among Pulitzer Publishing Company ("PPC"), the Company, and Hearst-Argyle
Television Inc., if such closing occurs, and will continue for an initial term
of three year. The term will automatically continue for successive one-year
periods thereafter; provided, however, that either party may terminate this
Agreement at the end of the initial term or the end of any subsequent one-year
renewal term by giving at least 60 days' prior written notice of such
termination to the other party.
3. Position, Duties and Responsibilities. Xxxxx will serve as a Vice
President of the Company and as general manager of the St. Louis Post Dispatch,
or in such other executive position as the Board of Directors of the Company
(the "Board") may determine. Xxxxx will devote substantially all of his business
time and attention to the performance of his duties and responsibilities under
this Agreement. Xxxxx may engage in personal, charitable, investment,
professional and other activities to the extent such activities do not prevent
him from properly fulfilling his obligations to the Company under this
Agreement.
4. Compensation.
(a) Base Salary. The Company will pay salary to Xxxxx at an annual
rate of $240,000, in accordance with its regular payroll practices. The Board
will review Xxxxx'x salary at least annually. The Board, acting in its
discretion, may increase (but may not decrease) the annual rate of Xxxxx'x
salary in effect at any time.
(b) Annual Incentive Awards. Xxxxx will participate in any bonus
plan that may be established by the Company on the same basis as other
executives. Xxxxx will be eligible for an annual target incentive opportunity of
30% of salary, increasing to 40% of salary effective January 1, 1999, on a basis
that is consistent with the annual incentive opportunity currently afforded
Xxxxx by PPC under PPC's executive annual incentive plan. Annual incentive
awards will be payable promptly after the end of the year for which they are
earned, subject to deferral requirements that may be imposed by the Company in
order to preserve its income tax deduction or elective deferral opportunities
that may be afforded by the Company.
(c) Employee Benefit Programs. Xxxxx will be entitled to
participate in such employee retirement, pension, welfare and fringe benefit
plans, arrangements and programs of the Company as are made available to the
Company's employees generally. Xxxxx will be entitled to participate in any
stock option, restricted stock or other equity-based plans or programs of the
Company that are made available to other executives of the Company. Subject to
stockholder approval of the Company's restricted stock plan, Xxxxx will be
awarded restricted shares of Company stock with a value (determined at the close
of business on the first trading day following the date of the Closing) of
$240,000, subject to vesting upon completion of the stated term of this
Agreement.
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(d) PPC SERP. The Company will assume the obligations of PPC to
Xxxxx for benefits accrued by Xxxxx under PPC's Supplemental Executive Benefit
Pension Plan ("SERP") prior to the Closing. After the Closing, the Company will
either assume and continue to maintain the SERP for the benefit of its eligible
employees (including Xxxxx) or will establish another plan or arrangement that
will provide Xxxxx with continuing future benefits and accruals that are at
least as favorable as would have been provided under the terms of the SERP in
effect immediately prior to the Closing.
5. Reimbursement of Business Expenses. Xxxxx is authorized to incur
reasonable expenses in carrying out his duties and responsibilities under this
Agreement, and the Company will promptly reimburse him for all such expenses
that are so incurred upon presentation of appropriate vouchers or receipts,
subject to the Company's expense reimbursement policies in effect from time to
time.
6. Termination of Employment.
(a) Death. If Xxxxx'x employment with the Company terminates before the
end of the term by reason of his death, then, as soon as practicable thereafter,
the Company will pay to his estate an amount equal to his "Accrued Compensation"
(defined below). Xxxxx'x spouse and covered dependents will be entitled to
continue to participate in the Company's group health plan(s) at the same
benefit level at which they participated immediately before Xxxxx'x death for a
period of at least one year after Xxxxx'x death or, if longer, for the balance
remaining in the term of this Agreement at the time of his death, and,
thereafter, for such additional continuation period as may be available under
COBRA or under any post-retirement group health plan or arrangement in which
Xxxxx participated prior to his death. For the purposes of this Agreement, the
term "Accrued Compensation" means, as of any date, the amount of any unpaid
salary earned by Xxxxx through that date, plus a pro rata amount of Xxxxx'x
target annual incentive award for the year in which such date occurs, plus any
additional amounts and/or benefits payable to or in respect of Xxxxx under and
in accordance with the provisions of any employee plan, program or arrangement
under which Xxxxx is covered immediately prior to his death.
(b) Disability. If the Company terminates Xxxxx'x employment by reason
of Xxxxx'x "disability" (defined below), then Xxxxx will be entitled to (1) his
Accrued Compensation through his employment termination date, (2) continuing
salary payments (at the rate in effect at the time his employment terminates),
reduced by any amounts payable to him pursuant to a Company-sponsored long term
disability program, during the one-year period following the termination of his
employment, and (3) continuing participation in the Company's group health
plan(s) at the same benefit level at which he and his covered dependent(s)
participated immediately before the termination of his employment for a period
of at least one year after such termination or, if longer, for the balance
remaining in the term of this Agreement at the time of such termination of
employment, and, thereafter, for such additional continuation period as may be
available under COBRA or under any post-retirement group health plan or
arrangement in which Xxxxx participated prior to the termination of his
employment by reason of his disability. For purposes of this Agreement, the term
"disability" means the inability of Xxxxx to substantially perform the customary
duties of his employment for the Company for a period of at least 120
consecutive days by reason of a physical or mental incapacity which is expected
to result in death or last indefinitely.
(c) Termination by the Company for Cause or Voluntary Termination by
Xxxxx. If the Company terminates Xxxxx'x employment for "cause" (defined below)
or if Xxxxx terminates his employment without "Good Reason" (as defined in
subsection(d) below) before the end of the stated term that is then in effect,
then Xxxxx will be entitled to receive his Accrued Compensation
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through the date his employment terminates, determined without regard to pro
rata bonus, and nothing more. For purposes of this Agreement, the Company may
terminate Xxxxx'x employment for "cause" if (1) Xxxxx commits a felony involving
moral turpitude, or (2) Xxxxx fails to carry out the duties and responsibilities
of his employment due to his willful gross neglect or willful gross misconduct
which cannot be cured or which, if curable, is not cured within 30 days after
receipt of written notice by the Company and a reasonable opportunity to appeal
to the Board (in person or through a representative), provided that, in either
case (1 or 2), Xxxxx'x conduct results in material harm to the financial
condition or reputation of the Company.
(d) Termination by the Company Without Cause or by Xxxxx for Good
Reason. If Xxxxx'x employment is terminated by the Company without Cause or by
Xxxxx for "Good Reason" (defined below), then Xxxxx will be entitled to receive
(1) Accrued Compensation through the termination date, (2) continued salary for
a period of six months after the termination date (or, if longer, for the
balance of the then term of this Agreement) at his annual rate of salary in
effect immediately prior to the termination date, (3) a single sum payment in an
amount equal to 40% of the highest annual rate of salary in effect before the
termination date (or, if higher, the highest annual incentive award paid or
payable to Xxxxx for any of the three preceding years (including, for this
purpose, employment with PPC) multiplied by the number of years (including
fractions of a year) covered by the period described in (2), (4) continued
participation in the Company's group health plan(s) at the same benefit level at
which he and his covered dependent(s) participated immediately before the
termination of his employment for a period of at least one year after such
termination or, if longer, for the balance remaining in the term of this
Agreement at the time of such termination of employment, and, thereafter, for
such additional continuation period as may be available under COBRA or under any
post-retirement group health plan or arrangement in which Xxxxx participated
prior to the termination of his employment, (5) continued participation for at
least one year or, if longer, for the then balance remaining in the term of this
Agreement in the Company's life insurance plans at the same benefit level in
effect immediately prior to the termination date, (6) elimination of all
restrictions, other than those required by law, on any restricted or deferred
stock awards previously granted to Xxxxx and outstanding at the time of his
termination of employment; and (7) immediate vesting of all stock options
previously granted to Xxxxx and outstanding at the time of his termination of
employment.. For the purposes of this Agreement, Xxxxx may terminate his
employment for "Good Reason" if
(A) the Company materially diminishes Xxxxx'x duties, responsibilities
or employment conditions in a manner which is inconsistent with the
provisions hereof or with his status as a senior executive officer of
the Company or which has or reasonably can be expected to have a
material adverse effect on Xxxxx'x status or authority within the
Company;
(B) the Company wilfully fails or refuses to satisfy any of its
compensation obligations under this Agreement; or
(C) the Company fails to perform or breaches its obligations under any
other material provision of this Agreement and does not correct such
failure or breach (if correctable) within 30 days following notice
thereof by Xxxxx to the Company.
8. No Mitigation; No Offset. Xxxxx will have no obligation to seek
other employment or to otherwise mitigate the Company's obligations to him
arising from the termination of his employment, and no amounts paid or payable
to Xxxxx by the Company under this Agreement shall
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be subject to offset for any remuneration to which Xxxxx may become entitled
from any other source after his employment with the Company terminates, whether
attributable to subsequent employment, self-employment or otherwise
9. Confidential Information; Cooperation with Regard to Litigation.
(a) Nondisclosure of Confidential Information. During the term
of his employment and thereafter, Xxxxx will not, without the prior written
consent of the Company, disclose to anyone (except in good faith in the ordinary
course of business to a person who will be advised by Xxxxx to keep such
information confidential) or make use of any Confidential Information (as
defined below) except in the performance of his duties hereunder or when
required to do so by legal process, by any governmental agency having
supervisory authority over the business of the Company or by any administrative
or legislative body (including a committee thereof) that requires him to
divulge, disclose or make accessible such information. In the event that Xxxxx
is so ordered, he will give prompt written notice to the Company in order to
allow the Company the opportunity to object to or otherwise resist such order.
(b) Definition of Confidential Information. For purposes of
this Agreement, the term "Confidential Information" means information concerning
the business of the Company or any corporation or other entity that is
controlled, directly or indirectly, by the Company relating to any of its or
their products, product development, trade secrets, customers, suppliers,
finances, and business plans and strategies. Excluded from the definition of
Confidential Information is information (1) that is or becomes part of the
public domain, other than through the breach of this Agreement by Xxxxx or (2)
regarding the Company's business or industry properly acquired by Xxxxx in the
course of his career as an executive in the Company's industry and independent
of Xxxxx'x employment by the Company or PPC. For this purpose, information known
or available generally within the trade or industry of the Company or any
subsidiary shall be deemed to be known or available to the public.
(c) Post-Termination Assistance. Xxxxx will cooperate with the
Company, during the term of his employment and thereafter (including following
Xxxxx'x termination of employment for any reason), by making himself reasonably
available to testify on behalf of the Company or any subsidiary of the Company
in any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, and to reasonably assist the Company or any such subsidiary in
any such action, suit, or proceeding by providing information and meeting and
consulting with the Board or its representatives or counsel, or representatives
or counsel to the Company or any such subsidiary, as reasonably requested;
provided, however, that the same does not materially interfere with his then
current professional activities. The Company will reimburse Xxxxx, on an
after-tax basis, for all expenses reasonably incurred by him in connection with
his provision of testimony or assistance.
10. Non-solicitation. During the term of his employment and for a
period of 24 months thereafter, Xxxxx will not induce or solicit, directly or
indirectly, any employee of the Company or any subsidiary of the Company to
terminate his or her employment with the Company or any such subsidiary.
11. Remedies. If Xxxxx commits a material breach of any of the
provisions contained in sections 9 or 10 above, then (a) the Company will have
the right to immediately terminate all payments and benefits which remain due
under this Agreement, and (b) the Company will have the right to seek injunctive
relief. Xxxxx acknowledges that such a breach of sections 9 or 10 could
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cause irreparable injury and that money damages may not provide an adequate
remedy for the Company. Nothing contained herein will prevent Xxxxx from
contesting any such action by the Company on the ground that no violation or
threatened violation of section 9 or 10 has occurred.
12. Resolution of Disputes. Any controversy or claim arising out of or
relating to this Agreement or any breach or asserted breach hereof or
questioning the validity and binding effect hereof arising under or in
connection with this Agreement, other than seeking injunctive relief under
section 11, shall be resolved by binding arbitration, to be held in St. Louis in
accordance with the rules and procedures of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. Pending the resolution of any
arbitration or court proceeding, the Company will continue payment of all
amounts and benefits due Xxxxx under this Agreement. All costs and expenses of
any arbitration or court proceeding (including fees and disbursements of
counsel) shall be borne by the respective party incurring such costs and
expenses, but the Company shall reimburse Xxxxx for such reasonable costs and
expenses in the event he substantially prevails in such arbitration or court
proceeding.
13. Indemnification.
(a) Company Indemnity. If Xxxxx is made a party, or is threatened to be
made a party, to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of the fact that he
is or was a director, officer or employee of the Company, PPC or any subsidiary
or affiliate thereof or was serving at the request of the Company or any
subsidiary or affiliate as a director, officer, member, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether or not the
basis of such Proceeding is Xxxxx'x alleged action in an official capacity while
serving as a director, officer, member, employee or agent, then the Company will
indemnify Xxxxx and hold him harmless to the fullest extent legally permitted or
authorized by the Company's certificate of incorporation or bylaws or
resolutions of the Company's Board or, if greater, by the laws of the State of
Delaware, against all cost, expense, liability and loss (including, without
limitation, attorney's fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
Xxxxx in connection therewith, except to the extent attributable to Xxxxx'x
xxxxx negligence or fraud), and such indemnification shall continue as to Xxxxx
even if he has ceased to be a director, member, officer, employee or agent of
the Company or other entity and shall inure to the benefit of Xxxxx'x heirs,
executors and administrators. The Company will advance to Xxxxx all reasonable
costs and expenses to be incurred by him in connection with a Proceeding within
20 days after receipt by the Company of a written request for such advance. Such
request shall include an undertaking by Xxxxx to repay the amount of such
advance if it shall ultimately be determined that he is not entitled to be
indemnified against such costs and expenses. The provisions of this section
shall not be deemed exclusive of any other rights of indemnification to which
Xxxxx may be entitled or which may be granted to him and shall be in addition to
any rights of indemnification to which he may be entitled under any policy of
insurance.
(b) No Presumption Regarding Standard of Conduct. Neither the failure
of the Company (including its Board, independent legal counsel or stockholders)
to have made a determination prior to the commencement of any proceeding
concerning payment of amounts claimed by Xxxxx under the preceding subsection
(a) of this section that indemnification of Xxxxx is proper because he has met
the applicable standard of conduct, nor a determination by the Company
(including its Board,
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independent legal counsel or stockholders) that Xxxxx has not met such
applicable standard of conduct, shall create a presumption that Xxxxx has not
met the applicable standard of conduct.
(c) Liability Insurance. The Company will continue and maintain a
directors and officers' liability insurance policy covering Xxxxx to the extent
the Company provides such coverage for its other senior Xxxxx officers.
14. Effect of Agreement on Other Benefits. Except as specifically
provided in this Agreement, the existence of this Agreement shall not be
interpreted to preclude, prohibit or restrict Xxxxx'x participation in any other
employee benefit or other plans or programs in which he currently participates.
15. Assignment; Binding Nature. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors, heirs
(in the case of Xxxxx) and permitted assigns. No rights or obligations of the
Company under this Agreement may be assigned or transferred by the Company
except that such rights or obligations may be assigned or transferred to the
successor of the Company or its business if the assignee or transferee assumes
the liabilities, obligations and duties of the Company, as contained in this
Agreement, either contractually or as a matter of law; provided, however, that
no such assignment or transfer will relieve the Company from its payment
obligations hereunder in the event the transferee or assignee fails to timely
discharge them. No rights or obligations of Xxxxx under this Agreement may be
assigned or transferred by him other than his rights to compensation and
benefits, which may be transferred only by will or operation of law, except as
otherwise specifically provided or permitted hereunder.
16. Representations. The Company represents and warrants that it is
fully authorized and empowered to enter into this Agreement and that the
performance of its obligations under this Agreement will not violate any
Agreement between it and any other person, firm or organization. Xxxxx
represents and warrants that there is no legal or other impediment which would
prohibit him from entering into this Agreement or which would prevent him from
performing the duties of his employment hereunder.
17. Entire Agreement. This Agreement contains the entire understanding
and agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the Parties with respect thereto.
18. Amendment or Waiver. No provision in this Agreement may be amended
unless such amendment is agreed to in writing and signed by Xxxxx and an
authorized officer of the Company. Except as set forth herein, no delay or
omission to exercise any right, power or remedy accruing to any Party shall
impair any such right, power or remedy or shall be construed to be a waiver of
or an acquiescence to any breach hereof. No waiver by either party of any breach
by the other Party of any condition or provision contained in this Agreement to
be performed by such other Party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent time.
Any waiver must be in writing and signed by Xxxxx or an authorized officer of
the Company, as the case may be.
19. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining
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provisions of this Agreement shall be unaffected thereby and shall remain in
full force and effect to the fullest extent permitted by law.
20. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of Xxxxx'x employment to the extent
necessary to the intended preservation of such rights and obligations.
21. Beneficiaries/References. Xxxxx shall be entitled, to the extent
permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder following
Xxxxx'x death by giving the Company written notice thereof. In the event of
Xxxxx'x death or a judicial determination of his incompetence, reference in this
Agreement to Xxxxx shall be deemed, where appropriate, to refer to his
beneficiary, estate or other legal representative.
22. Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of Delaware without reference to
principles of conflict of laws.
23. Notices. Any notice given to a party shall be in writing and shall
be deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the party concerned at the address indicated below or to such changed address as
such party may subsequently give such notice of:
If to the Company: Pulitzer Inc.
000 Xxxxx Xxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Secretary
If to Xxxxx: Xxxxx Xxxxx
000 Xxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
PULITZER INC.
By:_______________________________
__________________________________
Xxxxx Xxxxx
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