EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AGREEMENT, dated as of the 27th day of September, 2006
(this
"Agreement"), by and between Journal Register Company, a Delaware
corporation
(the "Company"), and Robert M. Jelenic (the "Executive"), amends
and restates
the Employment Agreement dated as of March 5, 2003 between the
Company and the
Executive, as amended by the First Amendment thereto dated as of
May 3, 2006
(such agreement, as so amended, the "Prior Agreement").
WHEREAS, the Executive serves as Chairman and Chief Executive
Officer of
the Company; and
WHEREAS, the Board of Directors of the Company (the "Board"),
has
determined that it is in the best interests of the Company and its
shareholders
to assure that the Company will have the continued services and
dedication of
the Executive, and to establish the terms and conditions of the
Executive's
continued employment.
NOW,
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
SECTION 1.
CERTAIN DEFINITIONS.
(a) "Affiliated Company" means any company controlled by,
controlling or
under common control with the Company.
(b) "Change of Control" means:
(1)
The acquisition by any
individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person"), of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
either (A) the then-outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (B) the
combined voting power of the then-outstanding voting securities
of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities");
PROVIDED, that, for purposes of this Section 1(b), the
following
acquisitions shall not constitute a Change of Control: (i) any
acquisition directly from the Company, (ii) any acquisition by
the Company, (iii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or
any
Affiliated Company or (iv) any acquisition by any corporation
pursuant to a transaction that complies with Sections
1(b)(3)(A),
1(b)(3)(B) and 1(b)(3)(C).
(2) Individuals who,
as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least
a
majority of the Board; PROVIDED, that any individual becoming a
director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though
such
individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose
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initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than
the
Board.
(3) Consummation of a
reorganization, merger, statutory share
exchange or consolidation or similar corporate transaction
involving the Company or any of its subsidiaries, a sale or
other
disposition of all or substantially all of the assets of the
Company, or the acquisition of assets or stock of another
entity
by the Company or any of its subsidiaries (each, a "Business
Combination"), in each case unless, following such Business
Combination, (A) all or substantially all of the individuals
and
entities that were the beneficial owners of the Outstanding
Company Common Stock and the Outstanding Company Voting
Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 60% of the
then-outstanding shares of common stock and the combined voting
power of the then-outstanding voting securities entitled to
vote
generally in the election of directors, as the case may be, of
the corporation resulting from such Business Combination
(including, without limitation, a corporation that, as a result
of such transaction, owns the Company or all or substantially
all
of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company
Voting Securities, as the case may be, (B) no Person (excluding
any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of,
respectively, the then-outstanding shares of common stock of
the
corporation resulting from such Business Combination or the
combined voting power of the then-outstanding voting securities
of such corporation, except to the extent that such ownership
existed prior to the Business Combination, and (C) at least a
majority of the members of the board of directors of the
corporation resulting from such Business Combination were
members
of the Incumbent Board at the time of the execution of the
initial agreement or of the action of the Board providing for
such Business Combination; or
(4) Approval by the
shareholders of the Company of a complete
liquidation or dissolution of the Company.
SECTION 2. EMPLOYMENT PERIOD. The Company hereby agrees to continue
the
Executive in its employ, subject to the terms and conditions of
this Agreement,
for the Employment Period. The "Employment Period" means the period
commencing
on the date hereof (the "Effective Date") and ending on December
31, 2006;
PROVIDED, that on December 31, 2003 and each December 31
thereafter, the
Employment Period shall be automatically extended so as to
terminate three years
from such December 31, unless it has been previously terminated
pursuant to
Section 4 or the Company or the Executive has given notice (a
"Notice of
Nonrenewal") to the other, not later than the previous October 31,
that the
Employment Period shall not be so extended; and PROVIDED, FURTHER,
that the
Employment Period shall terminate upon
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the Executive's termination of employment for any reason, as
provided for in
this Agreement; and PROVIDED, FINALLY, that in any event the
Employment Period
shall end on the Executive's 65th birthday.
SECTION 3. TERMS OF EMPLOYMENT. (a) POSITION AND DUTIES. (1) During
the
Employment Period, the Executive shall serve as Chairman and Chief
Executive
Officer of the Company, with such authority, duties and
responsibilities as are
commensurate with such position and as may be consistent with such
position,
reporting directly to the Board, and (B) the Executive's services
shall be
performed in Trenton, New Jersey or such other location as the
Executive and the
Company shall agree.
(2)
During the Employment Period, and excluding any periods of vacation
and
sick leave to which the Executive is entitled, the Executive shall
devote his
full attention and time during normal business hours to the
business and affairs
of the Company and, to the extent necessary to discharge the
responsibilities
assigned to him hereunder, to use his best efforts to perform
faithfully and
efficiently such responsibilities. It shall not be a violation of
this Agreement
for the Executive to serve on corporate, civic or charitable boards
or
committees, deliver lectures, fulfill speaking engagements or teach
at
educational institutions and manage personal investments, so long
as such
activities do not significantly interfere with the performance of
the
Executive's responsibilities as an employee of the Company in
accordance with
this Agreement. It is expressly understood and agreed that, to the
extent that
any such activities have been conducted by the Executive prior to
the Effective
Date, the continued conduct of such activities (or the conduct of
activities
similar in nature and scope thereto) subsequent to the Effective
Date shall not
thereafter be deemed to interfere with the performance of the
Executive's
responsibilities to the Company.
(b)
COMPENSATION. (1) BASE SALARY. During the Employment Period,
the
Executive shall receive a base salary (the "Base Salary") at an
annual rate at
least equal to $950,000. The Base Salary shall be paid at such
intervals as the
Company pays executive salaries generally. During the Employment
Period, the
Base Salary shall be reviewed at least annually for possible
increase effective
as of each January 1 during the Employment Period. Any increase in
the Base
Salary shall not serve to limit or reduce any other obligation to
the Executive
under this Agreement. The Base Salary shall not be reduced after
any such
increase and the term "Base Salary" shall refer to the Base Salary
as so
increased.
(2)
ANNUAL BONUS. In addition to the Base Salary, the Executive shall
be
entitled to earn, for each fiscal year ending during the Employment
Period, an
annual bonus (the "Annual Bonus") based on the achievement of
performance
criteria as determined by the Board or an appropriate committee
thereof, and
with the target amount of the Annual Bonus being not less than 30%
of the annual
amount of the Base Salary. The Annual Bonus that is so earned shall
be paid no
later than the end of the third month of the fiscal year next
following the
fiscal year for which the Annual Bonus is awarded, unless the
Executive shall
elect to defer the receipt of such Annual Bonus.
(3)
INCENTIVE, SAVINGS AND RETIREMENT PLANS. During the Employment
Period,
the Executive shall be entitled to participate in all cash
incentive, equity
incentive, savings and retirement plans, practices, policies, and
programs
applicable generally to other
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senior executives of the Company; PROVIDED, that such incentive
plans,
practices, policies shall provide the Executive with compensation
opportunities
at least comparable to those provided to him immediately before the
Effective
Date.
(4)
WELFARE BENEFIT PLANS. During the Employment Period, the
Executive
and/or the Executive's family, as the case may be, shall be
eligible for
participation in and shall receive all benefits under welfare
benefit plans,
practices, policies and programs provided by the Company
(including, without
limitation, medical, prescription, dental, disability, employee
life, group
life, accidental death and travel accident insurance plans and
programs) to the
extent applicable generally to other senior executives of the
Company. In
addition, from the date the Employment Period ends for any reason
and/or the
Executive's employment terminates for any reason, other than a
termination by
the Company for Cause or by the Executive without Good Reason (as
those terms
are defined below), the Company shall provide the Executive and his
spouse with
the Post-Retirement Health Benefits. The "Post-Retirement Health
Benefits" means
the following benefits during the remaining lifetime of the
Executive and the
remaining lifetime of the Executive's surviving spouse (if he has a
surviving
spouse): (x) health benefits (including medical, prescription,
dental and vision
coverage, if and to the extent applicable) under the plans provided
to the
Company's executive officers, as in effect from time to time, or
(y) benefits
under separate arrangements that are similar to the health benefits
described in
clause (x), taking into account in determining similarly the
benefits provided
and the costs and tax consequences to the Executive and his wife
(in either
case, such benefits are referred to as the "Post-Retirement Health
Benefits"),
PROVIDED, that the Post-Retirement Health Benefits may be made
secondary to any
other benefits to which the Executive and his wife may be entitled
under another
employer provided plan or a governmental plan such as Medicare.
(5)
EXPENSES. During the Employment Period, the Executive shall be
entitled
to receive prompt reimbursement for all reasonable expenses
incurred by the
Executive in accordance with the policies, practices and procedures
of the
Company in effect generally at any time after the Effective Date
with respect to
senior executives of the Company.
(6)
FRINGE BENEFITS. During the Employment Period, the Executive shall
be
entitled to fringe benefits which are comparable in the aggregate
to those
provided generally at any time after the Effective Date to other
senior
executives of the Company.
(7)
OFFICE AND SUPPORT STAFF. During the Employment Period, the
Executive
shall be entitled to an office or offices of a size and with
furnishings and
other appointments, and to exclusive personal secretarial and other
assistance,
at least equal to the most favorable of the foregoing provided
generally at any
time after the Effective Date with respect to other senior
executives of the
Company.
(8)
VACATION. During the Employment Period, the Executive shall be
entitled
to paid vacation in accordance with the most favorable plans,
policies, programs
and practices of the Company and the Affiliated Companies as in
effect generally
at any time after the Effective Date with respect to other senior
executives of
the Company; PROVIDED, that in no event shall the Executive be
entitled to less
than five weeks' paid vacation per year.
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SECTION 4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY.
The
Executive's employment shall terminate automatically if the
Executive dies
during the Employment Period. If the Company determines in good
faith that the
Disability (as defined herein) of the Executive has occurred during
the
Employment Period (pursuant to the definition of "Disability"), it
may give to
the Executive written notice in accordance with Section 11(b) of
its intention
to terminate the Executive's employment. In such event, the
Executive's
employment with the Company shall terminate effective on the 30th
day after
receipt of such notice by the Executive (the "Disability Effective
Date"),
PROVIDED, that within the 30 days after such receipt, the Executive
shall not
have returned to full-time performance of the Executive's duties.
"Disability"
means the absence of the Executive from the Executive's duties with
the Company
on a full-time basis for 180 consecutive business days as a result
of incapacity
due to mental or physical illness that is determined to be total
and permanent
by a physician selected by the Company or its insurers and
acceptable to the
Executive or the Executive's legal representative.
(b)
BY THE COMPANY WITHOUT CAUSE OR FOR CAUSE. The Company may
terminate
the Executive's employment during the Employment Period for Cause
or without
Cause. "Cause" means:
(1) the willful and
continued failure of the Executive to perform
substantially the Executive's duties hereunder (as contemplated
by Section 3(a)(1)(A)) (other than any such failure resulting
from incapacity due to physical or mental illness or following
the Executive's delivery of a Notice of Termination for Good
Reason), after a written demand for substantial performance is
delivered to the Executive by the Board or the Chief Executive
Officer of
the Company that specifically identifies the manner in
which the Board or the Chief Executive Officer of the Company
believes that the Executive has not substantially performed the
Executive's duties, or
(2) the willful
engaging by the Executive in illegal conduct or gross
misconduct that is materially and demonstrably injurious to the
Company.
For purposes of this Section 4(b), no act, or failure to act, on
the part of the
Executive shall be considered "willful" unless it is done, or
omitted to be
done, by the Executive in bad faith or without reasonable belief
that the
Executive's action or omission was in the best interests of the
Company. Any
act, or failure to act, based upon authority given pursuant to a
resolution duly
adopted by the Board or based upon the advice of counsel for the
Company shall
be conclusively presumed to be done, or omitted to be done, by the
Executive in
good faith and in the best interests of the Company. The cessation
of employment
of the Executive shall not be deemed to be for Cause unless and
until there
shall have been delivered to the Executive a copy of a resolution
duly adopted
by the affirmative vote of not less than three-quarters of the
entire membership
of the Board (excluding the Executive, if the Executive is a member
of the
Board) at a meeting of the Board called and held for such purpose
(after
reasonable notice is provided to the Executive and the Executive is
given an
opportunity, together with counsel for the Executive, to be heard
before the
Board), finding that, in the good faith opinion of the Board, the
Executive is
guilty of the conduct described in Section 4(b)(1) or 4(b)(2), and
specifying
the particulars thereof in detail.
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(c)
GOOD REASON. The Executive's employment may be terminated by
the
Executive for Good Reason or by the Executive voluntarily without
Good Reason.
"Good Reason" means:
(1) the assignment to the Executive of
any duties inconsistent in any
respect with the Executive's position (including status,
offices,
titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 3(a), or any other
diminution in such position, authority, duties or
responsibilities (including without limitation as a result of
the
Company's ceasing to be a publicly traded entity as a result of
a
Change of Control), excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and
that is remedied by the Company promptly after receipt of
notice
thereof given by the Executive;
(2) any failure by the
Company to comply with any of the terms of
this Agreement, excluding for this purpose an isolated,
insubstantial and inadvertent failure not occurring in bad
faith
and that is remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(3) any purported
termination by the Company of the Executive's
employment otherwise than as expressly permitted by this
Agreement; or
(4) any failure by the
Company to comply with and satisfy Section
10(c).
For purposes of this Section 4(c), any good faith determination of
Good Reason
made by the Executive shall be conclusive. Anything in this
Agreement to the
contrary notwithstanding, a termination by the Executive for any
reason pursuant
to a Notice of Termination given during the 30-day period
immediately following
the first anniversary of a Change of Control shall be deemed to be
a termination
for Good Reason for all purposes of this Agreement. The Executive's
mental or
physical incapacity following the occurrence of an event described
above in
clauses (1) through (4) shall not affect the Executive's ability to
terminate
employment for Good Reason.
(d)
NOTICE OF TERMINATION. Any termination by the Company without Cause
or
for Cause, or by the Executive without Good Reason or for Good
Reason, shall be
communicated by Notice of Termination to the other party hereto
given in
accordance with Section 11(b). "Notice of Termination" means a
written notice
that (1) indicates the specific termination provision in this
Agreement relied
upon, (2) to the extent applicable, sets forth in reasonable detail
the facts
and circumstances claimed to provide a basis for termination of the
Executive's
employment under the provision so indicated, and (3) if the Date of
Termination
(as defined herein) is other than the date of receipt of such
notice, specifies
the Date of Termination (which Date of Termination shall be not
more than 30
days after the giving of such notice, except as provided in clause
(3) of
Section 4(e) below). The failure by the Executive or the Company to
set forth in
the Notice of Termination any fact or circumstance that contributes
to a showing
of Good Reason or Cause shall not waive any right of the Executive
or the
Company, respectively,
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hereunder or preclude the Executive or the Company, respectively,
from asserting
such fact or circumstance in enforcing the Executive's or the
Company's
respective rights hereunder.
(e)
DATE OF TERMINATION. "Date of Termination" means (1) if the
Executive's
employment is terminated by reason of the Executive's death, the
date of death,
(2) if the Executive's employment is terminated by reason of
Disability, the
Disability Effective Date, and (3) if the Executive's employment is
terminated
under other circumstances, the date the Notice of Termination is
given or any
later date specified in the Notice of Termination (which date shall
not be more
than 30 days after the giving of such notice).
(f)
EFFECT OF EXPIRATION OF EMPLOYMENT PERIOD. Section 5 below shall
not be
applicable to the termination of the Executive's employment upon or
after the
expiration of the Employment Period in accordance with Section 2
above, whether
as a result of the delivery of a Notice of Nonrenewal by either the
Company or
the Executive, or as a result of the Executive's attainment of age
65.
Section 5. OBLIGATIONS OF THE COMPANY UPON TERMINATION DURING
THE
EMPLOYMENT PERIOD. (a) GOOD REASON; OTHER THAN FOR CAUSE, DEATH OR
DISABILITY.
If, during the Employment Period, the Company terminates the
Executive's
employment other than for Cause or Disability, or the Executive
terminates
employment for Good Reason, then in addition to the Other Benefits
provided for
in Section 6:
(1) the Company shall pay to the Executive, in a lump sum in
cash
within 30 days after the Date of Termination, the aggregate of
the
following amounts:
(A) the sum of (i) the
Executive's Base Salary through the Date of
Termination to the extent not theretofore paid, (ii) the
product
of (x) the average of the Annual Bonuses earned by the
Executive
for each of the last three full fiscal years prior to the Date
of
Termination (the "Average Annual Bonus") and (y) a fraction,
the
numerator of which is the number of d
