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EXHIBIT 10.6
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into as of the 22nd day of September, 1997 by and between Capstar
Broadcasting Corporation, a Delaware corporation (together with its successors
and assigns permitted hereunder, the "Company"), and Xxxxxx Xxxxxx (the
"Executive").
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the bests interests of the Company and its
stockholders to employ the Executive on the terms and conditions set forth
herein.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EMPLOYMENT PERIOD. Subject to Section 3, the Company hereby
agrees to employ the Executive, and the Executive hereby agrees to be employed
by the Company, in accordance with the terms and provisions of this Agreement,
for the period commencing as of the date of this Agreement and ending on
December 31, 2001 (the "Employment Period"); provided, however, that commencing
on December 31, 2001 and on each anniversary of such date occurring thereafter,
the Employment Period shall automatically be extended for one additional year
unless at least six months prior to the ensuing expiration date (but no more
than 12 months prior to such expiration date), the Company or the Executive
shall have given written notice that it or he, as applicable, does not wish to
extend this Agreement (a "Non-Renewal Notice"). The term "Employment Period",
as utilized in this Agreement, shall refer to the Employment Period as so
automatically extended.
2. TERMS OF EMPLOYMENT.
(a) Position and Duties.
(i) During the term of the Executive's
employment, the Executive shall serve as Executive Vice President and the Chief
Operating Officer of the Company and, in so doing, shall report to the Chief
Executive Officer. The Executive shall have (A) supervision and control over,
and responsibility for, the day-to-day operations of the radio broadcasting
stations owned by the Company and its subsidiaries, (B) such other powers and
duties (including holding officer positions with the Company and one or more
subsidiaries of the Company, including the officer positions of President and
Chief Operating Officer of Capstar Broadcasting Partners, Inc. and Capstar
Radio Broadcasting Partners, Inc.) as may from time to time be prescribed by
the Board, and (C) such other powers and duties as are reasonable and customary
for an Executive Vice President and the Chief Operating Officer of an
enterprise comparable to the Company.
(ii) During the term of the Executive's
employment, and excluding any periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote substantially all of his
business time to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities assigned to the Executive
hereunder, to use the Executive's reasonable best efforts to perform
faithfully, effectively and efficiently such responsibilities. During
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the term of Executive's employment it shall not be a violation of this
Agreement for the Executive to (1) serve on corporate, civic or charitable
boards or committees, (2) deliver lectures or fulfill speaking engagements and
(3) 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.
(b) Compensation.
(i) Base Salary. During the term of the
Executive's employment, the Executive shall receive an annual base salary
("Annual Base Salary"), which shall be paid in accordance with the customary
payroll practices of the Company, equal to $450,000. Commencing on July 1,
1998, and on each subsequent July 1 as long as the Executive remains an
employee of the Company (each such July 1 being herein referred to as an
"Adjustment Date"), the Annual Base Salary of the Executive shall be increased
by an amount equal to five percent (5%) of the then current Annual Base Salary
or such greater amount as the Board in its discretion may determine
appropriate. The result of such increase to the then current Annual Base
Salary shall constitute the Executive's Annual Base Salary commencing on the
Adjustment Date then at hand and continuing until the next Adjustment Date.
Any increase in Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. The term Annual Base Salary
as utilized in this Agreement shall refer to Annual Base Salary as so
increased.
(ii) Bonuses. The Executive shall be entitled to
receive a cash bonus (the "Initial Bonus") in the amount of $55,342 for the
period from September 22, 1997 through December 31, 1997. The Initial Bonus
shall be payable in a lump sum to the Executive within thirty days after
December 31, 1997. The Executive shall also be entitled to receive a cash
bonus (the "Second Bonus") in the amount of $200,000 for the period from
January 1, 1998 through December 31, 1998. The Second Bonus shall be payable
in a lump sum to the Executive within thirty days after December 31, 1998 For
each fiscal year of the Company after 1998, the Board shall approve a budget
which shall include, among other things, a target for EBITDA of the Company for
that year. If the revenues and net income for a fiscal year of the Company
equal or exceed the target for EBITDA as set forth in the budget, as evidenced
by a schedule prepared by the Company (and approved by the Board) based on the
audited income statement of the Company for such fiscal year, then, in addition
to the Annual Base Salary, the Executive shall be awarded an annual performance
bonus in such amount, if any, as shall be determined appropriate by the Board.
At the election of the Board, the bonus (other than the Initial Bonus) shall be
payable on the first day of the first calendar month after such audited income
statement is delivered to the Board or shall be payable in monthly payments, as
nearly equal as practicable, payable on the first day of such first calendar
month and on the first day of each calendar month thereafter occurring during
the remainder of the fiscal year next succeeding the fiscal year with respect
to which the bonus is payable. For purposes of this Agreement, "EBITDA" shall
have the meaning set forth in the Indenture dated as of February 20, 1997, as
it may be amended from time to time, between Capstar Broadcasting Partners,
Inc., a Delaware corporation ("Capstar Partners"), and U.S. Trust Company of
Texas, N.A., a national banking association, as trustee, which governs Capstar
Partners' 12 3/4% Senior Discount Notes due 2009.
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(iii) Incentive, Savings and Retirement Plans.
During the term of the Executive's employment, the Executive shall be entitled
to participate in all incentive, savings and retirement plans, practices,
policies and programs applicable generally to other executives of the Company
("Investment Plans").
(iv) Welfare Benefit Plans. During the term of
the Executive's employment, 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
("Welfare Plans") provided by the Company (including, without limitation,
medical, prescription, dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance plans and programs)
to the extent applicable generally to other executives of the Company.
(v) Automobile Allowance. During the term of the
Executive's employment, the Executive shall be entitled to receive a monthly
automobile allowance equal to $850, which shall be paid monthly in accordance
with the customary practices of the Company.
(vi) Perquisites. During the term of the
Executive's employment, the Executive shall be entitled to receive (in addition
to the benefits described above) such perquisites and fringe benefits
appertaining to his position in accordance with any practice established by the
Board.
(vii) Expenses. During the term of the Executive's
employment, the Executive shall be entitled to receive prompt reimbursement for
all reasonable employment expenses incurred by the Executive in accordance with
the policies, practices and procedures of the Company.
(viii) Vacation and Holidays. During the term of
the Executive's employment, the Executive shall be entitled to paid vacation
and paid holidays in accordance with the plans, policies, programs and
practices of the Company for its executive officers.
(ix) Stock Options. In addition to any benefits
the Executive may receive pursuant to paragraph 2(b)(iii), as may be determined
appropriate by the Board, the Company may, from time to time, grant Executive
stock options (the "Executive Options") exercisable for shares of capital stock
of the Company and subject to the terms of this Agreement, such Executive
Options shall have such terms and provisions as may be determined appropriate
by the Board. Any such Executive Options will be granted under the Company's
1997 Stock Option Plan or a successor plan of the Company (the "Stock Option
Plan").
(x) Country Club. During the term of the
Executive's employment, the Company shall pay (1) the initiation fee (up to
$15,000) for the Executive to join a country club in the Austin, Texas area,
and (2) the Executive's regular monthly dues at such club.
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3. TERMINATION OF EMPLOYMENT.
(a) Death or Disability. The Executive's employment
shall terminate automatically upon the Executive's death during the Employment
Period. If the Disability of the Executive has occurred during the Employment
Period (pursuant to the definition of Disability set forth below), the Company
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.
For purposes of this Agreement, "Disability" shall mean the Executive's
inability to perform his duties and obligations hereunder for a period of 180
consecutive days due to mental or physical incapacity as determined by a
physician selected by the Company or its insurers and acceptable to the
Executive or the Executive's legal representative (such agreement as to
acceptability not to be withheld unreasonably).
(b) Cause or Board Termination. The Company may
terminate the Executive's employment during the Employment Period for Cause or
without Cause. For purposes of this Agreement, "Cause" shall mean (i) a breach
by the Executive of the Executive's obligations under Section 2(a) (other than
as a result of physical or mental incapacity) which constitutes a continued
material nonperformance by the Executive of his obligations and duties
thereunder, as reasonably determined by the Board, and which is not remedied
within 30 days after receipt of written notice from the Company specifying such
breach, (ii) commission by the Executive of an act of fraud upon, or willful
misconduct toward, the Company, as reasonably determined by a majority of the
disinterested members of the Board (neither the Executive nor members of his
family being deemed disinterested for this purpose) after a hearing by the
Board following ten days' notice to the Executive of such hearing, (iii) a
material breach by the Executive of Section 6 or Section 9, (iv) the conviction
of the Executive of any felony (or a plea of nolo contendere thereto); (v)
Financial Cause; or (vi) the failure of the Executive to carry out, or comply
with, in any material respect any directive of the Board consistent with the
terms of this Agreement, which is not remedied within 30 days after receipt of
written notice from the Company specifying such failure. For purposes of this
Agreement, "Financial Cause" shall mean the failure by the Company to meet at
least 90% of its budgeted EBITDA, as approved by the Board, for the prior
fiscal year. For purposes of this Agreement, a "Board Determination" shall
mean a determination by the Board (which is evidenced by one or more written
resolutions to such effect) (i) to terminate the Executive's employment during
the Employment Period based upon the Board's dissatisfaction with the manner in
which the Executive has performed his obligations and duties under Section 2(a)
and (ii) that Cause does not exist as a basis for such termination. For
purposes of this Agreement, "without Cause" shall mean a termination by the
Company of the Executive's employment during the Employment Period pursuant to
a Board Determination or for any other reason other than a termination based
upon Cause, death or Disability.
(c) Good Reason. The Executive's employment may be
terminated during the Employment Period by the Executive for Good Reason or
without Good Reason; provided, however, that the Executive agrees not to
terminate his employment for Good Reason unless (i) the Executive
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has given the Company at least 30 days' prior written notice of his intent to
terminate his employment for Good Reason, which notice shall specify the facts
and circumstances constituting Good Reason, and (ii) the Company has not
remedied such facts and circumstances constituting Good Reason within such
30-day period. For purposes of this Agreement, "Good Reason" shall mean:
(i) 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 2(a) or any other action by the
Company which results in a material diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive (without limiting the foregoing, the Company and the Executive agree
that the delegation of the authority, duties or responsibilities of the
Executive to another person or persons, including any committee, shall be
deemed to be an action by the Company which results in a material diminution in
the Executive's position, authority, duties, or responsibilities as
contemplated by Section 2(a)), provided, however, that Good Reason may not be
asserted by the Executive under this clause (i) of Section 3(c) after a
Non-Renewal Notice has been given by either the Company or the Executive;
(ii) any termination or material reduction of a
material benefit under any Investment Plan or Welfare Plan in which the
Executive participates unless (1) there is substituted a comparable benefit
that is economically substantially equivalent to the terminated or reduced
benefit prior to such termination or reduction or (2) benefits under such
Investment Plan or Welfare Plan are terminated or reduced with respect to all
employees previously granted benefits thereunder;
(iii) any failure by the Company to comply with any
of the provisions of Section 2(b), other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(iv) any failure by the Company to comply with and
satisfy Section 8(c), provided that such successor has received at least ten
days prior written notice from the Company or the Executive of the requirements
of Section 8(c); or
(v) without limiting the generality of the
foregoing, any material breach by the Company or any of its subsidiaries or
other affiliates (as defined below) of (1) this Agreement or (2) any other
agreement between the Executive and the Company or any such subsidiary or other
affiliate.
As used in this Agreement, "affiliate" means, with respect to a
person, any other person controlling, controlled by or under common control
with the first person; the term "control," and correlative terms, means the
power, whether by contract, equity ownership or otherwise, to direct the
policies or management of a person; and "person" means an individual,
partnership, corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
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(d) Notice of Termination. Any termination by the
Company for Cause or without Cause, or by the Executive for Good Reason or
without Good Reason, shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 11(b). For purposes of
this Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon,
(ii) 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 (iii) if the Date of
Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall not be more than 15
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any
right of the Executive or the Company hereunder or preclude the Executive or
the Company from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i)
if the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason or without Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein pursuant to Section
3(d), as the case may be, (ii) if the Executive's employment is terminated by
the Company other than for Cause, the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment is
terminated by reason of death or Disability, the date of death of the Executive
or the Disability Effective Date, as the case may be.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) Good Reason; Other Than for Cause, Death or
Disability. If, during the Employment Period, the Company shall terminate the
Executive's employment other than for either Cause or Disability or the
Executive shall terminate his employment for Good Reason, and the termination
of the Executive's employment in any case is not due to his death or
Disability:
(i) The Company shall pay to the Executive in a
lump sum in cash within ten days after the Date of Termination the aggregate of
the following amounts: (1) the sum of the Executive's Annual Base Salary
through the Date of Termination to the extent not theretofore paid and any
compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon) and any accrued vacation pay ("Accrued
Obligations"); (2) the sum of two times the Executive's then current Annual
Base Salary; and (3) any amount arising from Executive's participation in, or
benefits under, any Investment Plans ("Accrued Investments"), which amounts
shall be payable in accordance with the terms and conditions of such Investment
Plans.
(ii) Except as otherwise provided in Section 4(d),
the Executive (and members of his family) shall be entitled to continue their
participation in the Company's Welfare Plans for a period of 24 months from the
Date of Termination.
(iii) Notwithstanding the terms or conditions of
any Executive Option or other similar stock option, stock appreciation right or
similar agreements between the Company and the Executive, the Executive shall
vest, as of the Date of Termination, in all rights under such
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agreements (i.e., Executive Options that would otherwise vest after the Date of
Termination) and thereafter shall be permitted to exercise any and all such
rights until the earlier to occur of (x) the expiration of such Executive
Option, stock option, stock appreciation right or similar agreement pursuant to
its terms or (y) 5:00 p.m., Dallas, Texas time, on the 90th day after the Date
of Termination; provided, however, the provisions of this clause (iii) of this
Section 4(a) shall not apply to a termination of the Executive's employment
during the Employment Period that is made by the Company pursuant to a Board
Determination.
(b) Death or Disability. If the Executive's employment
is terminated by reason of the Executive's death or Disability during the
Employment Period, the Company shall pay to his legal representatives (i) in a
lump sum in cash within ten days after the Date of Termination the aggregate of
the following amounts: (A) an amount equal to the Executive's then current
Annual Base Salary; and (B) the Accrued Obligations; and (ii) the Accrued
Investments which shall be payable in accordance with the terms and conditions
of the Investment Plans. In addition, except as otherwise provided in Section
4(d), the members of the Executive's family shall be entitled to continue their
participation in the Company's Welfare Plans for a period of 12 months after
the Date of Termination. Further, notwithstanding the terms or conditions of
any Executive Options, stock option, stock appreciation right or similar
agreements between the Company and the Executive, the Executive shall vest, as
of the Date of Termination, in all rights under such agreements (i.e.,
Executive Options, stock options that would otherwise vest after the Date of
Termination) and thereafter his legal representatives shall be permitted to
exercise any and all such rights until the earlier to occur of (x) the
expiration of such Executive Option, stock option, stock appreciation right or
similar agreement pursuant to its terms or (y) the first anniversary of the
Date of Termination. The Company shall have no further payment obligations to
the Executive or his legal representatives under this Agreement.
(c) Cause; Other than for Good Reason. If the
Executive's employment shall be terminated by the Company for Cause (other than
Financial Cause) or by the Executive without Good Reason during the Employment
Period, the Company shall have no further payment obligations to the Executive
other than for payment of Accrued Obligations, Accrued Investments (which shall
be payable in accordance with the terms and conditions of the Investment
Plans), and the continuance of benefits under the Company's Welfare Plans to
the Date of Termination. If the Executive's employment shall be terminated by
the Company for Financial Cause, the Company shall have no further payment
obligations to the Executive other than the continuance of benefits under the
Company's Welfare Plans to the Date of Termination and for payment to the
Executive in a lump sum in cash within ten days after the Date of Termination
the aggregate of the following amounts: (1) Accrued Obligations; (2) one half
of the Executive's then current Annual Base Salary; and (3) Accrued Investments
(which amounts shall be payable in accordance with the terms and conditions of
the Investment Plans).
(d) If pursuant to the terms and provisions of the
Company's Welfare Plans the Executive (or members of his family) are not
eligible to participate in the Company's Welfare Plans because the Executive is
no longer an employee of the Company, then the Company may fulfill its
obligations under clause (ii) of Section 4(a) or Section 4(b), as applicable,
by either providing to the
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Executive (or his legal representatives), or reimbursing the Executive (or his
legal representatives) for the costs of, benefits substantially similar to the
benefits provided by the Company to its senior management under its Welfare
Plans as such may from time to time exist after the Date of Termination.
5. FULL SETTLEMENT, MITIGATION. In no event shall the Executive
be obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the provisions
of this Agreement and such amounts shall not be reduced whether or not the
Executive obtains other employment. Neither the Executive nor the Company
shall be liable to the other party for any damages in addition to the amounts
payable under Section 4 arising out of the termination of the Executive's
employment prior to the end of the Employment Period; provided, however, that
the Company shall be entitled to seek damages for any breach of Sections 6, 7
or 9 or criminal misconduct.
6. CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that the Company and their
affiliates have trade, business and financial secrets and other confidential
and proprietary information (collectively, the "Confidential Information"). As
defined herein, Confidential Information shall not include (i) information that
is generally known to other persons or entities who can obtain economic value
from its disclosure or use and (ii) information required to be disclosed by the
Executive pursuant to a subpoena or court order, or pursuant to a requirement
of a governmental agency or law of the United States of America or a state
thereof or any governmental or political subdivision thereof; provided,
however, that the Executive shall take all reasonable steps to prohibit
disclosure pursuant to subsection (ii) above.
(b) The Executive agrees (i) to hold such Confidential
Information in confidence and (ii) not to release such information to any
person (other than Company employees and other persons to whom the Company has
authorized the Executive to disclose such information and then only to the
extent that such Company employees and other persons authorized by the Company
have a need for such knowledge).
(c) The Executive further agrees not to use any
Confidential Information for the benefit of any person or entity other than the
Company.
7. SURRENDER OF MATERIALS UPON TERMINATION. Upon any termination
of the Executive's employment, the Executive shall immediately return to the
Company all copies, in whatever form, of any and all Confidential Information
and other properties of the Company and their affiliates which are in the
Executive's possession, custody or control.
8. SUCCESSORS.
(a) This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws
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of descent and distribution. This Agreement shall inure to the benefit of and
be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
9. NON-COMPETITION.
(a) The term of Non-Competition (herein so called) shall
be for a term beginning on the date hereof and continuing until (i) if this
Agreement is terminated during the Employment Period by either the Company or
the Executive for any reason, the first anniversary of the Date of Termination
or (ii) if the Employment Period expires by reason of a Non-Renewal Notice, the
last day of the Employment Period.
(b) During the term of Non-Competition, the Executive
will not (other than for the benefit of the Company pursuant to this Agreement)
directly or indirectly, individually or as an officer, director, employee,
shareholder, consultant, contractor, partner, joint venturer, agent, equity
owner or in any capacity whatsoever, (i) engage in any radio broadcasting
business that transmits a primary or city-grade signal within a Metro Survey
Area (as currently defined by The Arbitron Company in its Radio Markets
Reports) in which a station directly operated by the Company OR ANY OF ITS
AFFILIATES transmits a primary or city-grade signal (1), with respect to the
term of Non- Competition that is during the Executive's employment, during such
term of employment, and (2), with respect to the term of Non-Competition that
is after the term of the Executive's employment, on the Date of Termination
(all such areas being collectively called the "Geographic Area") (a "Competing
Business"), (ii) hire, attempt to hire, or contact or solicit with respect to
hiring any employee of the Company OR ANY OF ITS AFFILIATES, or (iii) divert or
take away any customers or suppliers of the Company OR ANY OF ITS AFFILIATES in
the Geographic Area. Notwithstanding the foregoing, the Company agrees that
the Executive may own less than five percent of the outstanding voting
securities of any publicly traded company that is a Competing Business so long
as the Executive does not otherwise participate in such competing business in
any way prohibited by the preceding clause. As used in this Section 9(b) (and
in Section 6), "Company" shall include the Company and any of its subsidiaries
OR AFFILIATES.
(c) During the term of Non-Competition, the Executive
will not use the Executive's access to, knowledge of, or application of
Confidential Information to perform any duty for any Competing Business; it
being understood and agreed to that this Section 9(c) shall be in addition to
and not be construed as a limitation upon the covenants in Section 9(b) hereof.
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(d) The Executive acknowledges that the geographic
boundaries, scope of prohibited activities, and time duration of the preceding
paragraphs are reasonable in nature and are no broader than are necessary to
maintain the confidentiality and the goodwill of the Company's proprietary
information, plans and services and to protect the other legitimate business
interests of the Company.
10. EFFECT OF AGREEMENT ON OTHER BENEFITS. The existence of this
Agreement shall not prohibit or restrict the Executive's entitlement to full
participation in the executive compensation, employee benefit and other plans
or programs in which executives of the Company are eligible to participate.
11. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. Whenever the terms
"hereof", "hereby", "herein", or words of similar import are used in this
Agreement they shall be construed as referring to this Agreement in its
entirety rather than to a particular section or provision, unless the context
specifically indicates to the contrary. Any reference to a particular
"Section" or "paragraph" shall be construed as referring to the indicated
section or paragraph of this Agreement unless the context indicates to the
contrary. The use of the term "including" herein shall be construed as meaning
"including without limitation." This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications hereunder shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: Xxxxxx Xxxxxx
Capstar Broadcasting Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
If to the Company: Capstar Broadcasting Corporation
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term of this Agreement, such
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provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a portion of this Agreement; and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
(d) The Company agrees to attempt to obtain and maintain
a director's and officer's liability insurance policy during the term of the
Executive's employment covering the Executive on commercially reasonable terms,
and the amount of coverage shall be reasonable in relation to the Executive's
position and responsibilities hereunder; provided, however, that such coverage
may be reduced or eliminated to the extent that the Company reduces or
eliminates coverage for its directors and executives generally.
(e) The Company may withhold from any amounts payable
under this Agreement such Federal, state or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
(f) The Executive's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or the failure to
assert any right the Executive or the Company may have hereunder, including,
without limitation, the right of the Executive to terminate employment for Good
Reason, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement.
(g) The Executive acknowledges that money damages would
be both incalculable and an insufficient remedy for a breach of Section 6 or 9
by the Executive and that any such breach would cause the Company irreparable
harm. Accordingly, the Company, in addition to any other remedies at law or in
equity it may have, shall be entitled, without the requirement of posting of
bond or other security, to equitable relief, including injunctive relief and
specific performance, in connection with a breach of Section 6 or 9 by the
Executive.
(h) The provisions of this Agreement constitute the
complete understanding and agreement between the parties with respect to the
subject matter hereof.
(i) This Agreement may be executed in two or more
counterparts.
(j) In the event any dispute or controversy arises under
this Agreement and is not resolved by mutual written agreement between the
Executive and the Company within 30 days after notice of the dispute is first
given, then, upon the written request of the Executive or the Company, such
dispute or controversy shall be submitted to arbitration to be conducted in
accordance with the rules of the American Arbitration Association. Judgment
may be entered thereon and the results of the arbitration will be binding and
conclusive on the parties hereto. Any arbitrator's award or finding or any
judgment or verdict thereon will be final and unappealable. All parties agree
that venue for arbitration will be in Dallas, Texas, and that any arbitration
commenced in any other venue will be
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transferred to Dallas, Texas, upon the written request of any party to this
Agreement. All arbitrations will have three individuals acting as arbitrators:
one arbitrator will be selected by the Executive, one arbitrator will be
selected by the Company, and the two arbitrators so selected will select a
third arbitrator. Any arbitrator selected by a party will not be affiliated,
associated or related to the party selecting that arbitrator in any matter
whatsoever. The decision of the majority of the arbitrators will be binding on
all parties. The Company shall be responsible for paying its own and the
Executive's attorneys fees, costs and other expenses pertaining to any such
arbitration and enforcement regardless of whether an arbitrator's award or
finding or any judgment or verdict thereon is entered against the Executive.
The Company shall promptly (and in no event after ten days following its
receipt from the Executive of each written request therefor) reimburse the
Executive for his reasonable attorneys fees, costs and other expenses
pertaining to any such arbitration and the enforcement thereof.
(k) Sections 6 and 9 of this Agreement shall survive the
termination of this Agreement.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from the Board, the Company has caused
this Agreement to be executed in its name on its behalf, all as of the day and
year first above written.
EXECUTIVE
/s/ XXXXXX XXXXXX
-----------------------------------
Xxxxxx Xxxxxx
CAPSTAR BROADCASTING CORPORATION
/s/ XXXX X. XXXXX
-----------------------------------
By: Xxxx X. Xxxxx
Title: Executive Vice President
