Exhibit 10(b)
AMENDMENT NO. 4 TO EMPLOYMENT
AGREEMENT
THIS AMENDMENT NO. 4 TO EMPLOYMENT AGREEMENT (this
“Amendment”) is entered into as of the 30th day of
September, 2009 between Rex Radio and Television, Inc., an Ohio
corporation (the “Corporation”), and David L. Bearden
(“Employee”).
Recitals
A.
The Corporation and Employee entered into an Employment Agreement
dated October 11, 2005, as amended by Amendment No. 1 to
Employment Agreement dated December 10, 2007, Amendment No. 2 to
Employment Agreement dated March 6, 2008 and Amendment No. 3 to
Employment Agreement dated February 19, 2009 (collectively, the
“Agreement”).
B.
Amendment No. 3 to Employment Agreement provided for payment of a
“Transition Bonus” and the Corporation and Employee
desire to amend the Agreement with respect to the termination of
Employee’s employment and payment of the Severance Payment as
described herein.
NOW,
THEREFORE, the Corporation and Employee hereby amend the Agreement
as follows:
1. Definitions . All
capitalized terms used herein and not otherwise defined shall have
the same meaning herein as in the Agreement.
2. Payment Effective as of
Termination of Employment . Employee’s employment with
the Corporation was terminated effective as of June 30, 2009. As of
June 30, 2009, the Chief Executive Officer of the Corporation
determined that the transition of operational control of retail
stores to Appliance Direct, Inc. (“AD”) had not
occurred. Notwithstanding the fact that the Corporation maintains
that the transition has not occurred and in lieu of any other
payment from Corporation to Employee pursuant to the Employment
Agreement, the Corporation agrees to pay to Employee a
non-refundable Severance Payment in the amount of $450,000.00
payable as follows: (i) $225,000.00 on or before January 31, 2010
(but not before January 1, 2010); and (ii) $225,000.00 on or before
January 31, 2011 (but not before January 1, 2011), subject to the
execution of, and expiration of any applicable waiting period
pursuant to, the Employment Severance Agreement and Release of
Claims in the form attached hereto as Exhibit
“A”.
3. Effectiveness . This
Amendment shall be effective as of the date first written above.
Except as specifically amended by this Amendment, all other
applicable terms and conditions of the Agreement shall remain in
full force and effect and are hereby ratified and
confirmed.
4. Miscellaneous . This
Amendment shall be deemed to be a contract made under the laws of
the State of Ohio and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such State. If
any term, provision, covenant or restriction of this Amendment is
held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms,
provisions, covenants, and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed, all as of the day and year first above
written.
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REX RADIO AND TELEVISION,
INC.
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By:
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/s/ Douglas Bruggeman
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Douglas Bruggeman
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Vice President-Finance
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EMPLOYEE
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/s/ David L. Bearden
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David L. Bearden
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2
EXHIBIT “A”
EMPLOYMENT
SEVERANCE AGREEMENT AND
RELEASE OF CLAIMS
This
Employment Severance Agreement and Release of Claims (hereinafter
referred to as the “Agreement”) is made and entered
into by and between David L. Bearden, on behalf of himself
individually, and on behalf of his heirs, executors,
administrators, representatives, agents, attorneys and assigns
(hereinafter collectively referred to as “Employee”)
and Rex Radio a