EMPLOYMENT AGREEMENT dated as of November 18,1996 by and between New WorldCommunications of Tampa, Inc., a Florida corporation (the "Company"), and JaneAkre ("Employee").
WHEREAS, the Company owns and operates television station WTVT Channel 13, in Tampa,Florida (the "Station"); and
WHEREAS, the Company desires to employ the Employee, and the Employee is willing to beemployed, on the terms and conditions set forth below;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
(A) The Company agrees to employ Employee, and Employee agrees to be so employed by theStation under the terms of this Agreement.
(B) Employee agrees to render personal services in the WTVT Designated Market Area asan on-the-air investigative reporter and shall diligently and faithfully perform suchduties as are reasonably assigned by the Company relating to such services, including; (i)planning, preparing and managing various broadcast segments or programs presented bythe Station, including news, public affairs, documentaries, and (ii) such otherduties as may be assigned by the Station as relate to on-the-air investigative reporting;provided, however, Employee is hereby engaged with the mutual understanding that she willprepare for airing one to two investigative segments per week on an average weekly basis.
(C) At all times in the performance of her duties hereunder, Employee shall be subjectto the supervision and control of their Department Head and the General Manager of theStation and shall comply with the Code of Business Conduct, and any other policies, rules,and/or directives established from time to time by the management of the Station and theCompany- Employee's services during the term of this Agreement are exclusive totheCompany. Employee agrees to devote her entire professional time, attention and energiesto the performance of her duties for the Station. Employee may not take outside employmentexcept limited free lance work or speaking engagements that do not conflict with theperformance of her duties hereunder, do not indicate or employ any endorsement orsponsorship of such activity by the Station, and do not bring the Station, its sponsors orad agencies into public disrepute, scandal, contempt or ridicule. If Employee wishes toundertake such limited outside work, she must obtain prior written approval of, each freelance or speaking engagement by Station management.
(D) Employee agrees that nothing in this Agreement requires the Station to assignEmployee any particular duties provided the Station continues to pay Employee as specifiedin Paragraph 3 below during the term of this Agreement.
2. Term and Termination.
(A) The term of Employees employment under this Agreement (the "Term") shallbe from December 2, 1996, through and continuing until December 1, 1998, unless terminatedearlier as provided below. If not earlier terminated, and in the event the Company wishesto extend this Agreement beyond the second year of the Term, then commencing ninety (90)days prior to the expiration of the Term the Company will notify Employee in writing andEmployee will negotiate with the Company exclusively and in good faith for a period ofthirty (30) days with respect to the terms and conditions for such extension. Employeeagrees that she will not negotiate with any third party prior to the commencement of orduring this exclusive negotiating period. If the parties are unable to reach an agreementduring this negotiating period, Employee agrees that for the remainder of the term of thisAgreement, she will not enter into an agreement with. any person, firm or corporation forher services in television in the WTVT DMA without first giving the Company an opportunityto employ him on substantially comparable terms. In the event Employee receives any thirdparty offer which she wishes to accept, Employee agrees to give Company written notice ofsuch offer, together with her written acknowledgment of her willingness to accept same,Company shall have three (3) business days after receipt of such written notice fromEmployee in which to notify Employee of Company's intent to so employ Employee on termssubstantially comparable to such third party offer and, if Company so notifies Employee ofits intent to employ, the parties shall enter into an agreement on such terms. If Companydoes not so notify Employee of its intent to so employ him, Employee shall then be.free toaccept such third party offer for employment to commence after the expiration of the Termof this Agreement. Paragraphs 4, 5, 6, 7(B) and (C) and 8 of this Agreement shall surviveany termination of this Agreement except as otherwise provided in Paragraph 6(G).
(B) The Company may terminate this Agreement and all of Employee's rights under thisAgreement at any time for cause. The following are illustrations of "cause" butthe Station is not limited, or bound by these illustrations:
(iii) failure to perform assigned work in the manner described in Paragraphsl(A)(B)(C) and P) of the Agreement;
(iv) using, possessing, selling or distributing intoxicants or illegal drugs orcontrolled substances on the Station's property or while in the performance of theStation's business, or any other violation of the Company's drug and alcohol abuse policy;
(v) dishonesty or deceit;
(vi) assault or battery;
(vii) on-air obscenity or impropriety, oral or visual;
(viii) conduct involving moral turpitude;
(ix) conduct punishable as a felony under state or federal law;
(x) any action involving a breach of the terms of this Agreement;
(xi) if, at any time, the Fmployee fails to conduct himself with dueregard to social conventions and public morals and decency, or if the Employee commits anyact or becomes involved in any situation or occurrence which degrades the Employee. insociety or which brings the Employee into public disrepute, contempt, scandal or ridicule,or shocks, insults or offends the community, or which may reflect unfavorably upon theEmployee, the Station, whether or not such information becomes public;
(xii) conduct which could jeopardize the license to operate theStation;
(xiii) violation of any Federal Communications Commission rule orregulation;
(xiv) incompetence; or
(xv) violation of Company absenteeism policy.
Thejudgrnent as to whether particular conduct constitutes "for cause" underthis paragraph shall be solely that of the Company, provided that such discretion is notexercised arbitrarily, capriciously or in violation of law.
Any termination of this Agreement under the provisions of Paragraph 2(B) shall alsoconstitute a termination of employment.
(C) The Company reserves the right to terminate this Agreement without cause during theperiod commencing, September I ending September 21, provided that if the Company electswithin that period to terminate this Agreement,"the effective date of suchtermination shall be December 2, 1997 and the Station shall notify the Employee of itsdecision to terminate in writing between September 1, 1997 and September 22, 1997; if suchnotice is given, the Station will not be obligated to pay any further compensation orbenefits under this Agreement after December 2, 1997.
(D) The Employee reserves the right to terminate this Agreement in the event of thefollowing circumstances: (i) a specific breach of an express term of thisAgreement, and then only after the Company has had at least sixty (60) days written noticeof the breach and has nevertheless failed to remedy the breach; (ii) in the eventof a change in ownership or control of the station and the Senior Investigative Reporterand the Company's successor fail to reach an agreement for her continued employment orengagement to perform services following such change in ownership, and further providedEmployee shall give the Station sixty (60) days written notice of such termination; and (iii)in the event that the Company disbands the investigative unit, provided Employee shallgive the Company sixty (60) days written notice of such termination and has neverthelessfailed to remedy the breach of the Agreement.
(E) This Agreement shall be terminated by the death of the Employee as of the date ofdeath. In the event of Ernployee's death, the Company shall pay to the Fmployee's legalrepresentatives any accrued but unpaid compensation.
(A) During the Term, Employee shall be paid a salary based on the following annual
December 2, 1996 to December 1, 1997 $ 70,000
December 2, 1997 to December 2, 1998 $ 79,500
All compensation will be payable in accordance with the Company's normal paymentpractices as the same shall exist from time to time, subject to applicable withholding forfederal, state and local taxes. The Company's compensation obligation is contingent on theEmployee's readiness, willingness, and ability to perform under this Agreement, and if theEmployee is not ready, uihing or able to so perform, the Station may either terminate thisAgreement or adjust the compensation accordingly. These rights shall be in addition to anyother rights and remedies which the Station may have under this Agreement or underapplicable laws.
(B) Employee Benefits. Employee shall receive insurance, vacation, holidays, andother employee benefits as provided to other Station employees.
(C) Fringe Benefits. Employee shall be entitled to the fringe benefits describedin attached Exhibit "A".
4. Scripts, Creative Material, Promotional Material.
(A,) Employee acknowledges and agrees that all scripts and creative material created byor performed by Employee shall be "work made for hire" as that term is used inthe copyright laws of the United States, as set forth in 17 U.S.C. Section 101, et sea. ARprograms, program segments, titles and formats, scripts and outlines, ideas and conceptsconceived and created therefor and developed therein, shall be the sole and exclusiveproperty of the Company, and all copyrights, trademarks, service marks and other rightstherein shall be in the Company's name and ownership. Employee shall takeany and all actions the Station may request to confirm ownership of such intellectualproperty in the Company.
(B) The Station may make or cause to be made (i) likenesses, portraits,pictures, sketches and caricatures of Employee and to use and permit to be used suchlikenesses, portraits, pictures, sketches and caricatures of Employee as well asEmployee's recorded voice, name, pseudonyms, biography and endorsement in all forms ofmedia for the purpose of publicizing, promoting and advertising the Station and programsbroadcast by the Station, and (ii) recordings, transcriptions, videotapes and filmsof any and all services performed by Employee hereunder and to have such recordings,transcriptions, videotapes or film broadcast or telecast at any time during the term orafter the termination of this Agreement over the facilities of any radio, television orcable station or transmitted via satellite, video-dial tone or other distribution servicein the United States or elsewhere. The sound element of any program may be deleted,modified or substituted in connection with the Company's full translation rights orotheraise in the use of any recording hereunder anywhere in the world.
During the Term and thereafter, Employee shall keep secret and inviolate (i) theterms of this Agreement, including without limitation the provisions of Paragraph 3respecting compensation; and (ii) all knowledge and information of a confidentialnature which Employee may now know or hereafter come to know as a result of her employmentat the Station, including but not limited to all matters relating to client or advertiserfists, marketing and promotional strategies and plans, programming strategies and plans,production techniques, and the business, financial affairs or methodology of the Stationand the Company. Upon leaving the employ of the Company, Employee shall not take anydocuments or other tangibleexpressions of any of the foregoing, and further shallrelinquish all keys, identification cards and telephone, computer and any other passwordsused in connection with Employee's employment.
(A) The Employee is familiar with the business of the Station, the commercial andcompetitive nature of the industry and its dependence upon public acceptability, thesubstantial commitment the Station makes in developing the employee as a personality withher extraordinary and unique services and abilities which enable him to seek and obtainsimilar employment outside the Station's market. The Employee further recognizes that thevalue of the Station's business would be injured if the employee obtained comparableemployment within the Stations market and that such injury could not be reasonably oradequately compensated by monetary compensation. For these reasons, upon the expiration orearlier termination of this Agreement, the Employee will not, for a period of one hundredeighty (180) days (the "Non Competition Term"), perform services for, orotherwise be publicly identified with the promotion of or the services provided by, anyother television or cable television station, located in WTVT Tclevision's DesignatedMarket Area "DMA"), as DMA is defined by A.C. Nielsen.
(B) During the Non-Competition Term, Employee shall not either directly or indirectlyemploy, solicit for employment, or advise or recommend to any other person that theyemploy or solicit for employment, any other employee of the Station or the Company.
(C) It is understood and agreed that part of the consideration for this noncompetitioncovenant is the employment of Employee by the Company and such employment is being made inreliance on this non-competition covenant and the protection it affords from theirreparable injury the Company would suffer should Employee compete with or serve acompetitor of the Station in violation of the provisions of this non-competitioncovenant.Employee hereby acknowledges and agrees that it is impossible to measure inmonetary terms the damages which will accrue to the Company by reason of Employee'sfailure to perform any of her obligations under this non-competition covenant.Accordingly, if the Company, or any of its successors or assigns, shall institute anaction or proceeding to enforce the provisions of this non-competition covenant, theCompany shall be entitled to injunctive or other equitable relief, in addition to damagesand attomey's fees and costs, in an action at law, to prevent the failure to perform orother violation of the provisions of this Agreement.
(D) Employee acknowledges that she has carefully read and considered the provisions ofthis paragraph 6 and agrees that the restrictions herein contained, including but notlimited to the time period and geographical areas of restriction, are fair and reasonable,are common in the television industry, and are reasonably required for the protection ofthe Company and the Station. Employee acknowledge that the Company successors and assignsare authorized to enforce this non-competidon covenant. Employee acknowledges that she hashad the opportunity to consult with her attorney, agent and/or collective bargainingrepresentative in connection with this Paragraph 6.
(E) If at any time all or any part of any provision of this Paragraph 6shall be held to be invalid or unenforceable in any particular jurisdiction orcircumstances, such provision shall be enforceable in all other jurisdictions andcircumstances and the remaining provisions of this Paragraph 6 and this Agreement shallnevertheless continue to be valid and enforceable to the fullest extent permitted by lawas though any invalid or unenforceable provision had not been included herein.
(F) If the scope of any restriction contained in this Paragraph is too broad to permitenforcement of such restriction to its full extent, then such restriction shall beenforced to the maximum extent permitted by law and the Employee herebyconsents and agrees that such scope may bejudicially modified accordingly in anyproceeding to enforce such restriction.
(G) In the event the Company terminates this Agreement without cause pursuant toParagraph 2(C) during the term of this Agreement the Employee shall not be bound byParagraphs 6 (A) (B) (C) (D) (E) and (F) above, but will remain bound by Paragraph(s) 4,5, 7 (B) and (C).
7. Content of Performance and Indemnification.
(A) Employee agrees not to publicly disseminate or broadcast, or to submit to othersfor such purpose, any material that has not first been approved by the appropriate Stationsupervisory personnel, unless such material is furnished to Employee by the Station orthrough news services to which the Station subscribes. Employee shall not materiallydeviate from the script or other material furnished to, or approved for use by, Employeein connection with performance of her services.
(B) Except as provided below, the Company shall indemnify and hold harmless Employeefrom any and all claims, liabilities, losses, damages, and expenses, including reasonableattorneys' fees, as a result of acts of the Employee performed in the course and withinthe scope of Employee's employment. The Company's obligation under this paragraph shallnot apply in the event that (i) claims, liabilities, losses, damages or expenses,including reasonable attorneys, fees, are incurred as a result of Employee's violation ofthe Company's or the Station's policies, rules or directives in effect from time to timeor of Paragraph 7 (A) above; (ii) the Employee has failed to promptly notify the Companyof any claim made or litigation filed against him; or (iii) the Employee has settled orcompromised the claim or litigation as to him without the Company's prior written consent.This indemnification shall survive the death or other termination of employment of theEmployee and the expiration or termination of the Term. Employee shall, as a conditionprecedent to receipt of such indemnification, cooperate with the Company and its legalcounsel in the defense of any related action, claim or proceeding.
(C) The Company's obligation under Paragraph 7 (B) above to defend and indemnifyEmployee hereunder anticipates that the Company will otherwise defend Eployee with its ownlegal counsel and shall include the payment of Employee's reasonable attorneys' fees onlyin the event the Company requires Employee to retain separate counsel. Should Employeeretain separate counsel not suitable to the Company or upon her own initiative withoutbeing required to, do so by the Company, the Company shall have no obligation to payEmployce's attorneys fees.
8. General Provisions.
(A) No part of this Agreement, or any of the rights or obligations of Employeehereunder shall be assignable by Employee. This Agreement shall be assignable by theCompany to any successor to the Station's broadcast properties or business, without anyrequirement to obtain Employee's consent.
(B) This Agreement is made pursuant to and shall be construed in accordance with thelaw of Florida.
(C) If any of the provisions of this Agreement are held to be invalid under the laws ofthejurisdiction in which enforcement is sought, such invalidity does not invalidate theentire Agreement; rather, the Agreement shall be construed as if it had never containedthe invalidated portion or portions.
(D) This Agreement contains the entire understanding of the parties and supersedes anyand all other agreements, either oral or in writing, between the parties- It may beamended only in writing signed by the party against whom enforcement is sought.
(E) Employee represents and warrants that Employee has the right to enter into thisAgreement and to grant the rights herein granted, that Employee neither has made nor
(F) Employee represents and warrants that the sums payable to Employee hereunderinclude all commissions and fees, and Employee agrees to hold the Company harn-dess fromany claims for fees or commissions by any agent or representative of Employee.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first abovewritten.