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EMPLOYMENT AGREEMENT
WITH ▇▇▇▇▇▇ ▇. SEACH
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of July 28, 1999, but is effective for all purposes as of the Commencement
Date (as hereinafter defined), by and between CLASSIC COMMUNICATIONS, INC., a
Delaware corporation, and CLASSIC CABLE, INC., a Delaware corporation
(collectively, the "Employer"), and ▇▇▇▇▇▇ ▇. SEACH, residing at 10501
Coreopsis, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Employee").
R E C I T A L S:
The Employer recognizes the important contributions that the Employee
has made to the Employer as an officer and key employee, as currently evidenced
by an Employment Agreement, dated as of January 31, 1998 (the "1998 Agreement"),
between the Employer, Classic Cable, Inc. and Employee.
The Employer wishes to take steps to ensure that the Employer will
continue to have the Employee's services available to the Employer and its
subsidiaries, and the Employer and the Employee desire to terminate and replace
the 1998 Agreement as of the Closing (as defined as that certain Investment
Agreement, dated as of May 24, 1999, between the Employer and Brera Classic, LLC
(the "Investment Agreement")).
In consideration of the foregoing, the mutual provisions contained
herein, and for other good and valuable consideration, the parties agree to
amend and restate in its entirety the 1998 Agreement, and agree with each other
as follows:
1. Employment. The Employer hereby employs the Employee, and the
Employee hereby accepts such employment, upon the terms and subject to the
conditions set forth in this Agreement.
2. Term. The term of employment under this Agreement shall commence on
the date of the Closing (the "Commencement Date") and shall continue through
July ___, 2001, provided, however, that beginning on the Commencement Date, and
on each day thereafter, the term of this Agreement shall be extended by one
additional day, unless either party to this Agreement gives the other written
notice of termination of employment.
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3. Compensation; Reimbursement.
(a) The Employer shall pay to the Employee as compensation for all
services rendered by the Employee during the term of this Agreement a basic
annualized salary of $350,000 per year (the "Basic Salary"), or such other
amount as the parties may agree on from time to time, payable in equal monthly
installments or in other more frequent installments, as determined by the
Employer. The Board of Directors of the Employer shall have the right to
increase the Employee's compensation from time to time by action of the Board of
Directors. In addition, the Board of Directors of the Employer, in its
discretion, may, with respect to any year during the term hereof, award a bonus
or bonuses to the Employee in addition to the bonuses provided for in Section
3(b). The compensation provided for in this Section 3(a) shall be in addition to
any pension or profit sharing payments set aside or allocated for the benefit of
the Employee.
(b) In addition to the Basic Salary paid pursuant to Section 3(a),
the Employer may pay as incentive compensation an annual bonus based upon the
Employee's performance, as determined each year by the Board of Directors of the
Employer.
(c) The Employer shall reimburse the Employee for all reasonable
expenses incurred by the Employee in the performance of his duties under this
Agreement; provided, however, that the Employee must furnish to the Employer an
itemized account, satisfactory to the Employer, in substantiation of such
expenditures.
(d) The Employee shall be entitled to continue the use of his
current corporate vehicle and such fringe benefits, including, but not limited
to, split-dollar life insurance, medical and other insurance benefits, as may be
provided from time to time by the Employer to other senior officers of the
Employer.
(e) The Employer will use all reasonable efforts to have the
appropriate provisions of this Agreement approved by the Employer's
shareholders, or take such other actions reasonably required to restructure the
payments hereunder in order to avoid taxes under Section 280G of the Internal
Revenue Code of 1986, as amended.
4. Duties. The Employee is engaged as the President of the Employer and
of the Employer's various subsidiaries. The Employee shall be a
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member of the Boards of Directors of the Employer and the Employer's
subsidiaries for so long as he is employed by the Employer. In addition, the
Employee shall have the duties of Chief Financial Officer and shall have such
other duties and hold such other offices as may from time to time be reasonably
assigned to him by the Board of Directors of the Employer.
5. Extent of Services; Vacations and Days Off.
(a) During the term of his employment under this Agreement, the
Employee shall devote substantially all of his time, energy and attention during
regular business hours to the benefit and business of the Employer in performing
his duties pursuant to this Agreement.
(b) The Employee shall be entitled to vacations with pay and to such
personal and sick leave with pay in accordance with the policy of the Employer
as may be established from time to time by the Employer and applied to other
senior officers of the Employer.
6. Facilities. The Employer shall provide the Employee with a fully
furnished office, and the facilities of the Employer shall be generally
available to the Employee in the performance of his duties pursuant to this
Agreement, it being understood and contemplated by the parties that all
equipment, supplies and office personnel required for performance of the
Employee's duties under this Agreement shall be supplied by the Employer in
Austin, Texas.
7. Termination on Death, Illness or Incapacity.
(a) If the Employee dies during the term of his employment, the
Employer shall pay to the estate of the Employee the Basic Salary that would
have otherwise been paid to Employee through the end of the term of this
Agreement (provided that the term shall cease to be extended daily pursuant to
Section 2 hereof upon the death of Employee) plus any bonus compensation earned
but not yet paid up to the end of the month in which his death occurs. The
Employer shall have no additional financial obligation under this Agreement to
the Employee or his estate. After receiving the payments provided in this
subparagraph (a), the Employee and his estate shall have no further rights under
this Agreement.
(b) (i) During any period of disability, illness or incapacity
during the term of this Agreement which renders the Employee at least
temporarily unable to perform the services required under this Agreement for a
period which does
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not exceed one hundred and eighty (180) continuous days in any one-year period,
the Employee shall receive the compensation payable under Section 3(a) of this
Agreement plus any bonus compensation earned but not yet paid, less any benefits
received by him under any disability insurance carried by or provided by the
Employer. Upon the Employee's permanent disability (as defined below), the
Employee shall continue to receive the Basic Salary that would have otherwise
been paid to the Employee through the end of the term of this Agreement,
provided that the term shall cease to be extended daily pursuant to Section 2
hereof upon the permanent disability of Employee. Notwithstanding the
continuation of the Basic Salary as set forth above, the Employee shall continue
to receive any disability benefits to which he may be entitled under any
disability income insurance which may be carried by or provided by the Employer
from time to time.
(ii) The term "permanent disability" as used in this Agreement
shall mean the inability of the Employee, as determined by the Board of
Directors of the Employer, by reason of physical or mental disability to perform
the duties required of him under this Agreement for a period of one hundred and
eighty (180) days in any one-year period. Successive periods of disability,
illness or incapacity will be considered separate periods unless the later
period of disability, illness or incapacity is due to the same or related cause
and commences less than six months from the ending of the previous period of
disability. Upon such determination, the Board of Directors may terminate the
Employee's employment under this Agreement upon ten (10) days' prior written
notice. If any determination of the Board of Directors with respect to permanent
disability is disputed by the Employee, the parties hereto agree to abide by the
decision of a panel of three physicians. The Employee and the Employer shall
each appoint one member, and the third member of the panel shall be appointed by
the other two members. The Employee agrees to make himself available for and to
submit to examinations by such physicians as may be directed by the Employer.
Failure to submit to any such examination shall constitute a breach of a
material part of this Agreement.
8. Other Terminations.
(a) (i) The Employee may terminate his employment hereunder upon
giving at least ninety (90) days' prior written notice to the Employer. In
addition, the Employee shall have the right to terminate his employment
hereunder on the conditions and at the times provided for in Section 8(e) and
Section 8(f) of this Agreement.
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(ii) If the Employee gives notice pursuant to Section 8(a)
above, the Employer shall have the right to relieve the Employee, in whole or in
part, of his duties under this Agreement (without reduction in compensation
through the termination date set forth in the notice to the Employer).
(b) The Employer may terminate Employee's employment hereunder at
any time, without prior notice.
(c) If the Employer shall terminate the employment of the Employee
without good cause (as defined below) effective on a date earlier than the
termination date provided for in Section 2, the Employee shall have the
nonforfeitable right to receive, the Basic Salary, matching 401-K contributions
consistent with past practice (to the extent permitted by law), health insurance
and other existing benefits, paid monthly, that he is entitled to for the
remainder of the term of this Agreement, and the Employer shall continue to
provide him with medical insurance coverage for the remainder of the term of
this Agreement; provided that, notwithstanding such termination of employment,
the Employee's covenants set forth in Sections 10 and 11 are intended to and
shall remain in full force and effect.
(d) (i) If the employment of the Employee is terminated for good
cause, or if the Employee voluntarily terminates his employment without reliance
on Section 8(e) or Section 8(f), the Employer shall pay to the Employee any
compensation earned but not paid to the Employee prior to the effective date of
such termination. Under such circumstances, such payment shall be in full and
complete discharge of any and all liabilities or obligations of the Employer to
the Employee hereunder, and the Employee shall be entitled to no further
benefits under this Agreement.
(ii) "Good cause" shall include:
(1) the Employee's conviction of a criminal offense that
has a material adverse effect upon the business or reputation or the
Employer or any affiliate of the Employer;
(2) commission by the Employee of a material breach of his
duty of loyalty to the Employer or any affiliate of the Employer,
Sections 9 or 11 of this Agreement, Section 2.3 of the Registration
Rights Agreement, or the material obligations under the Stockholder
Agreement; provided, however, that
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Employee shall have received written notice of such breach, providing
him an opportunity to cure such breach within ten (10) days of receipt
of such warning and such breach is not cured within such time frame;
and
(3) the Employee's willful failure or refusal to perform
his assigned duties, which willful refusal has had, or if continued,
could reasonably be expected to have, a material adverse effect on the
Employer or the affiliates of the Employer or their respective
businesses or prospects, and which willful refusal has continued after
Employee has received at least one written warning specifically
advising him or his shortcomings and providing him with an opportunity
to resume performance in accordance with his assigned duties and such
shortcomings are not cured within ten (10) days of receipt of such
written warning.
(e) If (1) the Board of Directors of the Employer elects to employ
an executive chairman, or other executive officer to whom the Employee would
report, who is not a present member or employee of Brera Capital Partners, LCC,
and who will play a significant role in the Employer's management and will
receive a significant salary or an equity investment in the Employer and (2)
Employee determines, within ten (10) days of receiving notice of the Board of
Directors desire to employ such executive chairman, that such individual is not
reasonably acceptable to Employee to serve on such position, then the Employee
may, at his election, terminate his employment hereunder during such ten (10)
day period, and have such termination treated as a termination without good
cause by the Employer for all purposes of this Agreement.
(f) If the Employer elects to terminate the employment of J. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ without good cause (as defined in his Employment Agreement with the
Employer, dated as of the date hereof), then the Employee may, at his election,
terminate his employment hereunder within ten (10) days of receiving notice of
such termination of ▇▇▇▇▇▇ Seach from the Employer, and have such termination
treated as a termination without good cause by the Employer for all purposes of
this Agreement.
(g) If the Employee's employment with the Employer is terminated by
the Employer without good cause or by the Employee pursuant to Section 8(e) or
Section 8(f), then all of the Employee's stock options, and unvested common
stock of the Employer will vest immediately. If the Employee's employment with
the Employer is terminated by the Employer with good cause or by the
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Employee other than pursuant to Section 8(e) or Section 8(f), then all of the
Employee's unvested stock options shall no longer be eligible for vesting or
exercise. All vested stock options will be exercisable in accordance with their
terms.
(h) The parties agree that, because there can be no exact measure of
the damage that would occur to the Employee as a result of a termination by the
Employer of the Employee's employment without good cause, the payments and
benefits paid and provided pursuant to this Agreement shall be deemed to
constitute liquidated damages and not a penalty for the Employer's termination
of the Employee's employment without good cause, and the Employer agrees that
the Employee shall not be required to mitigate his damages.
9. Disclosure. The Employee agrees that during the term of his
employment by the Employer, he will disclose and disclose only to the Employer
all material ideas, methods, plans, developments or improvements known by him
which relate directly or indirectly to the business of the Employer, whether
acquired by the Employee before or during his employment by the Employer.
Nothing in this Section 9 shall be construed as requiring any such communication
where the idea, plan, method or development is lawfully protected from
disclosure as a trade secret of a third party or by any other lawful prohibition
against such communication.
10. Confidentiality. The Employee agrees to keep in strict secrecy and
confidence any and all information the Employee assimilates or to which he has
access during his employment by the Employer and which has not been publicly
disclosed and is not a matter of common knowledge in the fields of work of the
Employer. The Employee agrees that both during and after the term of his
employment by the Employer, he will not, without the prior written consent of
the Employer, disclose any such confidential information to any third person,
partnership, joint venture, company, corporation or other organization.
11. Non-Competition; Non-Solicitation. The Employee hereby acknowledges
that, during and solely as a result of his employment by the Employer, he has
received and shall continue to receive: (1) special training and education with
respect to the operations of a cable television company and other related
matters, and (2) access to confidential information and business and
professional contacts. In consideration of the special and unique opportunities
afforded to the Employee by the Employer as a result of the Employee's
employment, as outlined in the previous sentence, the Employee hereby agrees as
follows:
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(a) During a period starting on the date hereof and ending two years
following the termination of his employment under this Agreement, the Employee
shall not, without the prior written consent of the Employer, (i) directly or
indirectly engage in any business that competes with the Employer or any
Affiliate of the Employer in their conduct of the cable television business, or
otherwise receive compensation for any services rendered regarding any aspect of
the cable television business anywhere within the states in which any cable
television system is operated by the Employer or any Affiliate of the Employer;
provided, however, that the Employee may participate as a passive investor in
businesses which are similar to that of the Employer so long as the investment
is limited to not more than 10% of the ownership interests of such entity;
provided, further that the Employee may continue to invest in Mid-South
Telecommunications Company, or (ii) engage or participate, directly or
indirectly, in any business which is substantially similar to that of the
Employer or any Affiliate of the Employer, including, without limitation,
serving as a consultant, administrator, officer, director, employee, manager,
landlord, lender, guarantor, or in any similar or related capacity or otherwise
receive compensation for services rendered regarding any aspect of the cable
television business anywhere within the states in which any cable television
system is operated by the Employer or any Affiliate of the Employer. The
Employee acknowledges that these limited prohibitions are reasonable as to time,
geographical area and scope of activities to be restrained and that the limited
prohibitions do not impose a greater restraint than is necessary to protect the
Employer's goodwill, proprietary information and other business interests. The
mere ownership of a de minimis amount of securities in any competitive
enterprise and exercise of rights appurtenant thereto, and participation in
management of any such enterprise or business operation other than in connection
with the competitive operation of such enterprise, are not prohibited.
(b) During his employment with the Employer and, except as may be
otherwise herein provided, for a period of two (2) years following the
termination of his employment with the Employer, regardless of the reason for
such termination, the Employee agrees he will refrain from and will not,
directly or indirectly, as an individual, partner, officer, director,
stockholder, employee, advisor, independent contractor, joint venturer,
consultant, agent, representative, salesman or otherwise (1) solicit any of the
employees of the Employer to terminate their employment or (2) accept employment
with or seek remuneration by any of the clients or customers of the Employer
with whom the Employer did business during the term of the Employee's
employment.
(c) The period of time during which the Employee is prohibited from
engaging in certain business practices pursuant to Sections 11(a) or (b) shall
be extended by any length of time during which the Employee is in breach of such
covenants.
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(d) It is understood by and between the parties hereto that the
foregoing restrictive covenants set forth in Sections 11(a) through (c) are
essential elements of this Agreement, and that, but for the agreement of the
Employee to comply with such covenants, the Employer would not have agreed to
enter into this Agreement. Such covenants by the Employee shall be construed as
agreements independent of any other provision in this Agreement. The existence
of any claim or cause of action of the Employee against the Employer, whether
predicated on this Agreement, or otherwise, shall not constitute a defense to
the enforcement by the Employer of such covenants.
(e) It is agreed by the Employer and Employee that if any portion of
the covenants set forth in this Section 11 are held to be invalid, unreasonable,
arbitrary or against public policy, then such portion of such covenants shall be
considered divisible both as to time and geographical area. The Employer and the
Employee agree that, if any court of competent jurisdiction determines the
specified time period or the specified geographical area applicable to this
Section 11 to be invalid, unreasonable, arbitrary or against public policy, a
lesser time period or geographical area which is determined to be reasonable,
non-arbitrary and not against public policy may be enforced against the
Employee. The Employer and the Employee agree that the foregoing covenants are
appropriate and reasonable when considered in light of the nature and extent of
the business conducted by the Employer.
12. Specific Performance. The Employee agrees that damages at law will
be an insufficient remedy to the Employer if the Employee violates the terms of
Section 9, 10 or 11 of this Agreement and that the Employer would suffer
irreparable damage as a result of such violation. Accordingly, it is agreed that
the Employer shall be entitled, upon application to a court of competent
jurisdiction, to obtain injunctive relief to enforce the provisions of such
Sections, which injunctive relief shall be in addition to any other rights or
remedies available to the Employer. The Employee agrees to pay to the Employer
all costs and expenses incurred by the Employer relating to the enforcement of
the terms of Section 9, 10 or 11 of this Agreement, including reasonable fees
and disbursements of counsel (both at trial and in appellate proceedings).
13. Put and Call Provisions with Respect to Employee.
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(a) Termination without Good Cause. If the Employee's employment
with the Employer is terminated by the Employer without good cause or by the
Employee pursuant to Section 8(e) or Section 8(f), (i) the Employer shall have
the right 180 days after such termination (or, in the case of termination by the
Employee pursuant to Section 8(e), upon termination) to redeem from the
Employee, and the Employee shall have the obligation to permit the Employer to
redeem (a "Call"), all or part of the Employer's common stock owned by the
Employee and his "family members" (as defined in the Stockholders Agreement
dated as of July , 1999 among the Employer, the Employee and certain other
stockholders of the Employer), including all stock the Employee is entitled to
purchase under the stock options granted hereunder (collectively, the "Employee
Shares"), and (ii) for a period of 60 days from the date of such termination,
the Employee shall have the right to require the Employer to redeem, and the
Employer shall have the obligation to redeem, subject to the existence of
legally available funds therefore (a "Put"), all or part of the Employee Shares.
The purchase price of each share of the Employee Shares purchased pursuant to a
Put exercised hereunder shall be equal to its Fair Market Value on the date of
the Employee's termination. The purchase price of each share of the Employee
Shares purchased pursuant to a Call shall be equal to its Fair Market Value on
the date the Call is exercised. Notwithstanding the foregoing, any payment in
respect of a Put or a Call under this Section 13(a) shall be subject to any
covenant restrictions on such payment that might exist in the Employer's credit
agreements or indentures as from time to time in effect. If any Put or Call
pursuant to this Section 13(a) is prohibited by any covenant restrictions on
such payments under the Employer's credit agreements or indentures, the Employer
will use all reasonable efforts to obtain a waiver of such covenant
restrictions.
(b) Resignation; Permanent Disability. In the event that Employee's
employment with the Employer is terminated because he resigns or because of his
Permanent Disability, the Employer shall have the right for a period of 60 days
from the date of such termination to Call all of the Employee Shares owned by
Employee and members of his "family group". The purchase price the Employee
Shares purchased pursuant to a Call exercised pursuant to this Section 13(b)
shall be equal to its Fair Market Value on the date of Employee's termination.
(c) Termination for Good Cause. In the event that Employee's
employment with the Employer is terminated for "good cause," the Employer shall
have the right to Call all or part of the Employee Shares owned directly or
indirectly by Employee and members of his "family group" as of the date of his
termination. The purchase price for all such Employee Shares shall be equal to
the Fair Market Value of the Employee Shares acquired by the Employer.
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(d) Notice and Delivery. The closing with respect to any Put or Call
of Employee Shares pursuant to this Section 13 shall occur within 30 days of the
delivery of a Put notice and 30 days within delivery of a Call notice. The
Employee and the Employer each agree to negotiate in good faith determine the
Fair Market Value of any Employee Shares to be purchased by the Employer
pursuant to this Section 13.
(e) Definitions.
(i) "Appraiser" means an independent investment bank of
national reputation.
(ii) "Appraised Value" means the value of Employee Shares
determined by one or more Appraisers. In the event that the Employer and
Employee cannot agree as to Fair Market Value for purposes of this Agreement
within 30 days of the event giving rise to the need to determine Fair Market
Value, the Employer and the Employee shall select an Appraiser to determine Fair
Market Value. If the Employer and the Employee cannot agree on any one Appraiser
within 10 days, the Employer and the Employee shall each select an Appraiser
within 5 days after such 10 day period and those two Appraisers will select a
third Appraiser within 5 days, the cost of which will be split on an equal basis
by the Employer and the Employee. The Appraisers will be directed to determine
Fair Market Value as soon as reasonably practicable, but in no event later than
30 days from the date of their selection. If more than one Appraiser is retained
to determine Fair Market Value, Appraised Value shall mean the average of the
values determined by the Appraisers.
(iii) "Fair Market Value" means (A) as to securities traded in
the organized securities markets, the Market Value; and (B) as to all securities
not traded in the securities markets and other property, the fair market value
of such securities of property as determined in good faith by the Board of
Directors of the Employer; provided, however, if Employee and the Employer
cannot agree upon the fair market value of the Employee Shares to be repurchased
such fair market value will be determined as set forth below. In the event that
Employee and the Employer are unable to agree upon the Fair Market Value of such
securities or other property, then the Fair Market Value of such securities or
property will be the Appraised Value.
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(iv) "Market Value" as of a certain date means, per share of
common stock:
(1) the average of the last sale prices, regular way, on
the 20 consecutive business days immediately preceding such date or, if
there shall have been no sale on any such day, the average of the closing
bid and asked prices on such date, in each case as officially reported on
the principal national securities exchange on which such common stock is
at the time listed or admitted to trading, or
(2) if such common stock is not then listed or admitted to
trading on any national securities exchange, but is designated as a
national market system security by the NASD, the last trading price of the
common stock on such date, or if there shall have been no trading on such
date or if the common stock is not so designated, the average of the
reported closing bid and asked prices on such 20 days as shown by the NASD
automated quotation system.
14. Stock Options
(a) The Employee will be granted two stock options to purchase
common stock of Classic Communications, Inc. (the "Common Stock") upon
completion of the Closing. The stock options will have a ten (10) year term. The
first stock option will entitle Employee to purchase 279,874 shares of Common
Stock at an exercise price of $14.57 per share and will vest (i) on a monthly
basis over a three-year period (1/36 per month) (subject to accelerated vesting
pursuant to this Agreement) or (ii) immediately upon closing of a Liquidity
Event which involves a sale of all of the Common Stock of the Employee for cash
or a sale of all or substantially all of the assets of the Employer. The second
stock option will entitle Employee to purchase 279,874 shares of Common Stock at
the Liquidity Event Exercise Price (as defined below) and will vest (y) on a
monthly basis over a three-year period (1/36 per month) which begins on the date
of the closing of a Liquidity Event (as defined below) which involves an initial
public offering or a stock-for-stock merger or (z) immediately upon the closing
of a Liquidity Event which involves a sale of all of the Common Stock of the
Employee for cash or a sale of all or substantially all of the assets of the
Employer.
(b) For purposes of this Section 14, (i) the term "Liquidity Event"
means the sale of all of the outstanding Common Stock for cash, stock or
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other securities by merger, tender offer, stock purchase or otherwise, the sale
of all or substantially all of the assets of the Employer, or an initial public
offering of the Employer's Common Stock; and (ii) the term "Liquidity Event
Exercise Price" shall mean (A) the gross sale price per share of Common Stock in
the initial public offering of the Employer's Common Stock and (B) in the event
the Liquidity Event involves a sale of the Employer's stock or assets, an amount
equal to $14.57 per share increased by 14% per annum from the Closing to the
date of the closing of such Liquidity Event.
(c) If the Employer shall effect (i) a subdivision or consolidation
of shares or other capital readjustment, the payment of a stock dividend, or
other increase or reduction of the number of shares of the Common Stock
outstanding without receiving compensation therefor in money, services, or
property, (ii) a merger of one or more corporations into the Employer, or (iii)
the merger of the Employer into or its consolidation with another corporation,
then the shares subject to the stock options as set forth in this Section 14
shall, at no additional cost, include the number and class of shares of stock or
other securities to which the Employee is entitled pursuant to the terms of such
subdivision, consolidation, capital readjustment, stock dividend, increase or
reduction of the number of shares of Common Stock, or merger, as the case may
be, and the exercise price shall be adjusted accordingly. If any such adjustment
shall result in a fractional-share interest being issuable, such fraction shall
be disregarded.
15. Compliance with Other Agreements. The Employee represents and
warrants that the execution of this Agreement by him and his performance of his
obligations hereunder will not conflict with, result in the breach of any
provision of or the termination of or constitute a default under any Agreement
to which the Employee is a party or by which the Employee is or may be bound.
16. Waiver of Breach. The waiver by the Employer of a breach of any of
the provisions of this Agreement by the Employee shall not be construed as a
waiver of any subsequent breach by the Employee.
17. Assignment. The rights and obligations of the Employer under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the Employer. This Agreement is a personal employment contract
and the rights, obligations and interests of the Employee hereunder may not be
sold, assigned, transferred, pledged or hypothecated.
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18. Entire Agreement. This Agreement contains the entire agreement and
supersedes all prior agreements and understandings, oral or written, between the
Employer (or its subsidiaries) and Employee, with respect to the subject matter
hereof, including, without limitation, the 1998 Agreement. Employee agrees that
he has no further rights under the 1998 Agreement or under any other employment
agreement or consulting agreement with Employer or any of its affiliates
provided that the Employee has been paid his accrued and unpaid transaction
compensation of $1,500,000 whether or not there has been any change of control
and additional compensation due upon a change of control in the amount of
$700,000 in connection with previous agreements. This Agreement may be changed
only by an agreement in writing signed by the party against whom any waiver,
change, amendment, modification or discharge is sought.
19. Construction and Interpretation.
(a) Notwithstanding the choice of law provisions in the Investment
Agreement and the other Transaction Agreements (as defined in the Investment
Agreement) this Agreement shall be governed by and construed pursuant to the
laws of the State of Texas.
(b) The headings of the various sections in this Agreement are
inserted for convenience of the parties and shall not affect the meaning,
construction or interpretation of this Agreement.
(c) Any provision of this Agreement which is determined by a court
of competent jurisdiction to be prohibited, unenforceable or not authorized in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction. In any such case, such
determination shall not affect any other provision of this Agreement, and the
remaining provisions of this Agreement shall remain in full force and effect. If
any provision or term of this Agreement is susceptible to two or more
constructions or interpretations, one or more of which would render the
provision or term void or unenforceable, the parties agree that a construction
or interpretation which renders the term or provision valid shall be favored.
20. Notice. All notices which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
received if personally delivered; when transmitted if transmitted by telecopy or
similar
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electronic transmission method; one working day after it is sent, if sent by
recognized expedited delivery service; and five days after it is sent, if
mailed, first class mail, certified mail, return receipt requested, with postage
prepaid. In each case notice shall be sent:
To the Employer: Classic Communications, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
With copies to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
And copies to: Brera Classic, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
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And copies to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
(Illinois)
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
To the Employee: at the address dated in the preamble
hereto
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first-above written.
CLASSIC COMMUNICATIONS, INC.
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
CLASSIC CABLE, INC.
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇▇ ▇. SEACH
/s/ ▇▇▇▇▇▇ ▇. Seach
--------------------------------------------
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