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EXHIBIT 10.36
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), made and
entered into as of August 6, 1997, by and between Capstar Broadcasting
Corporation, a Delaware corporation (hereinafter, together with its successors,
referred to as "Capstar"), Capstar Radio Broadcasting Partners, Inc., a
Delaware corporation and indirect subsidiary of Capstar (hereinafter, together
with its successors, referred to as the "Company"), and Xxxxxx X. Xxxxxxx XX
(hereinafter referred to as the "Executive").
WHEREAS, through a series of mergers, Benchmark Communications Radio
Limited Partnership, a Maryland limited partnership ("BCRLP"), has been
acquired by a subsidiary of the Company (the "Merger");
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its sole
stockholder to employ the Executive on the terms and conditions set forth
herein.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definitions.
(a) Accrued Obligations means the sum of (i) the
Executive's Annual Base Salary and bonus (as hereinafter defined) earned or
accrued through the Date of Termination (as hereinafter defined) to the extent
not theretofore paid, (ii) reimbursement for any and all monies advanced by
Executive in connection with the Executive's employment for reasonable and
necessary expenses incurred by the Executive through the Date of Termination,
and (iii) any unpaid accrued vacation pay determined as of the Date of
Termination.
(b) Cause means (i) a breach by the Executive of the
Executive's obligations under Section 3 (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 determined by the Board,
and which is not cured 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 Board after a hearing by the Board following ten days'
notice to the Executive of such hearing, (iii) the use by the Executive of any
illegal drugs, (iv) a material breach by the Executive of Section 7 or Section
9, (v) the conviction of the Executive of any felony (or a plea of nolo
contendere thereto), 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 cured within 30 days after receipt
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of written notice from the Company specifying such failure. The Company may
suspend the Executive's title and authority pending the hearing provided for in
clause (ii) above, and such suspension shall not constitute "Good Reason", as
defined below.
(c) Disability means 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 reasonably acceptable to the Executive.
(d) Good Reason means (i) without the Executive's written
consent, any reduction, approved by the Board, in the amount of the Executive's
annual salary, (ii) any significant reduction, approved by the Board without
the Executive's written consent, in the aggregate value of the Executive's
benefits under Section 4 hereof (other than annual salary) as in effect from
time to time (unless such reduction is pursuant to a general change in benefits
applicable to all similarly situated employees of the Company), (iii) any
material breach by the Company of this Agreement (other than a breach caused
solely by the Executive ), or (iv) any significant reduction, approved by the
Board without the Executive's written consent, in the Executive's title, duties
or responsibilities. Notwithstanding the above, the occurrence of any of the
events described above will not constitute Good Reason unless the Executive
gives the Company written notice that such event constitutes Good Reason, and
the Company thereafter fails to cure the event within 30 days after receipt of
such notice.
(e) Person means any "person", within the meaning of
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 or the rules or
regulations promulgated thereunder, including a "group" as therein defined.
(f) Subsidiary means, with respect to any Person, any
other Person of which such first Person owns or has the power to vote, directly
or indirectly, securities representing a majority of the votes ordinarily
entitled to be cast for the election of directors or other governing Persons.
2. Term of Employment. Subject to the terms and provisions of
this Agreement, 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 on the
effective date of the Merger (the "Effective Date") and ending on the third
anniversary of the Effective Date (the "Employment Period").
3. Position and Duties.
(a) During the term of the Executive's employment, the
Executive shall serve as a Managing Director and member of the Executive
Council of the Company and, in so doing, shall report to the President and/or
Chief Executive Officer of the Company and the Board (or such other person as
the Board may designate). Subject to and in accordance with the authority and
direction of the President and/or Chief Executive Officer of the Company and
the Board (or such other person as the Board may designate), the Executive
shall have supervision and control over, and responsibility for, such
management and operational functions of the Company currently assigned to such
position, and shall have such other powers and duties (including holding
officer positions
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with one or more subsidiaries of the Company) as may from time to time be
prescribed by the Board, so long as such powers and duties are reasonable and
customary for the Managing Director and Executive Council member of an
enterprise comparable to the Company.
(b) 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 full 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 the term of Executive's employment it shall not be a
violation of this Agreement for the Executive to (i) serve on corporate, civic
or charitable boards or committees, (ii) deliver lectures or fulfill speaking
engagements and (iii) 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.
4. Compensation. During the Employment Period, the Executive
shall be compensated as follows:
(a) 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, in an amount equal to $200,000.00. The Board in its discretion may at
any time increase the amount of the Annual Base Salary to such greater amount
as it may determine appropriate. The term Annual Base Salary as utilized in
this Agreement shall refer to Annual Base Salary as such may be so increased.
(b) In addition to Annual Base Salary, the Executive
shall be awarded during the term of the Executive's employment an annual
performance bonus in such amount, if any, (which amount shall in no event
exceed the amount of the Annual Base Salary) as shall be determined appropriate
by the Board pursuant to the applicable annual performance bonus plan as
adopted by the Board based upon the recommendation of the Executive and the
President and/or Chief Executive Officer of the Company.
(c) During the term of the Executive's employment, the
Executive shall be eligible to participate in the Capstar Broadcasting
Corporation 1997 Stock Option Plan.
(d) 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").
(e) 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.
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(f) 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.
(g) 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.
(h) 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.
5. Termination.
(a) 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 means of notice (the "Notice of Termination") to the other
party hereto which specifies the effective date of the termination (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 a 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 circumstances in
enforcing the Executive's or the Company's rights hereunder.
(b) "Date of Termination" means (i) if the Executive's
employment is terminated by the Company for Cause or without Cause (including
because of Disability), 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, as the case may be, and (ii) if the Executive's employment
is terminated by reason of death, the date of death of the Executive.
(c) If the Executive's employment is terminated by the
Company 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 retirement, as
his exclusive right and remedy in respect of such termination:
(i) the Company shall pay to the Executive (A)
within ten days after the Date of Termination, a lump sum cash payment equal to
the Accrued Obligations other than any severance payments or benefits under any
Company severance policy generally applicable to the Company's salaried
employees, (B) 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, and (C) in regular installments in accordance with the customary payroll
practices of the Company, the Executive's then current Annual Base Salary (pro-
rated for periods less than 1 year) for the remainder of the Employment Period
(the "Severance Period").
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(ii) The Executive shall continue to be covered at
the expense of the Company by the same or equivalent medical, dental, and life
insurance coverages as in effect for the Executive immediately prior to the
Date of Termination, until the earlier of (A) the expiration of the Severance
Period or (B) the date the Executive has commenced new employment and has
thereby become eligible for comparable medical benefits.
(d) If the Executive's employment is terminated by reason
of the Executive's death during the Employment Period, the Company shall pay to
his legal representatives (i) within ten days after the Date of Termination, a
lump sum cash payment equal to the Accrued Obligations, and (ii) the Accrued
Investments, which amounts shall be payable in accordance with the terms and
conditions of such Investment Plans.
(e) If the Executive's employment is terminated by reason
of the Executive's Disability (or retirement pursuant to the Company's
Board-approved retirement plan, "Retirement") during the Employment Period, the
Company shall pay to the Executive (i) within ten days after the Date of
Termination, a lump sum cash payment equal to the Accrued Obligations and (ii)
the Accrued Investments, which amounts shall be payable in accordance with the
terms and conditions of such Investment Plans.
(f) If the Executive's employment shall be terminated by
the Company for Cause or by the Executive without Good Reason (other than
because of death, Disability or Retirement) during the Employment Period, the
Company shall pay to the Executive (i) within ten days after the Date of
Termination, a lump sum cash payment equal to the Accrued Obligations and (ii)
the Accrued Investments, which amounts shall be payable in accordance with the
terms and conditions of such Investment Plan.
(g) Upon the termination of the Executive's employment,
the Company shall have no further obligations to the Executive or his legal
representatives under this Agreement except to the extent provided for in this
Section 5.
6. 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 (except as provided in
Section 5(c)(ii)) 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 5 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 7, 8 or 9 or criminal misconduct.
7. Confidential Information.
(a) The Executive acknowledges that the Company and its
affiliates have trade, business and financial secrets and other confidential
and proprietary information (collectively, the "Confidential Information").
Confidential Information shall not include (i) information that is generally
known (other than as a result of a disclosure by the Executive) to other
persons or entities
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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) During and following the Executive's employment by
the Company, the Executive shall hold in confidence and not directly or
indirectly disclose or use or copy or make lists of any confidential
information or proprietary data of the Company or its subsidiaries except to
the extent authorized in writing by the Board or required by any court or
administrative agency, other than to an employee of the Company or its
subsidiaries or a Person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by the Executive of duties as an
executive of the Company.
(c) The Executive further agrees not to use any
Confidential Information for the benefit of any person or entity other than the
Company.
8. Surrender of Materials Upon Termination. All records, files,
documents and materials, or copies thereof, relating to the Company's, its
affiliates' and their subsidiaries' respective businesses which the Executive
shall prepare, or use, or come into contact with, shall be and remain the sole
property of the Company, its affiliates or their subsidiaries, as the case may
be, and shall be promptly returned by the Executive to the owner upon
termination of the Executive's employment with the Company.
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 the expiration
of the Employment Period; provided, however, that the term of Non-Competition
shall expire (x) upon the Date of Termination if the Executive is not entitled
to the payments under Section 5(c)(i)(C) hereunder, or (y) if the Executive is
entitled to such payments, upon the date that the Executive waives his
entitlement to any further payments under Section 5(c)(1)(C) hereunder and
irrevocably and unconditionally releases, acquits and forever discharges the
Company from any and all claims arising hereunder.
(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, equity owner, consultant, contractor, partner, joint venturer,
agent, equity owner or in any capacity whatsoever, (i) engage in the operation
of any AM or FM radio station within 50 miles of any transmission site on which
the Company, its affiliates or any of their direct or indirect subsidiaries,
operates a radio station (a "Competing Business"), (ii) hire, attempt to hire,
contact or solicit with respect to hiring any employee of the Company, its
affiliates or any of their direct or indirect subsidiaries, or (iii) divert or
take away any customers or suppliers of the Company , its affiliates or any of
their direct or indirect subsidiaries. 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
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Executive does not otherwise participate in such competing business in any way
prohibited by the preceding clause.
(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.
(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, its affiliates'
and their direct or indirect subsidiaries' proprietary information, plans and
services and to protect the other legitimate business interests of the Company,
its affiliates and their subsidiaries.
(e) If any court determines that any portion of this
Section 9 is invalid or unenforceable, the remainder of this Section 9 shall
not thereby be affected and shall be given full effect without regard to the
invalid provisions. If any court construes any of the provisions of this
Section 9, or any part thereof, to be unreasonable because of the duration or
scope of such provision, such court shall have the power to reduce the duration
or scope of such provision and to enforce such provision as so reduced.
10. Successors. The Company may assign its rights under this
Agreement to any successor to all or substantially all the assets of the
Company, by merger or otherwise, and may assign or encumber this Agreement and
its rights hereunder as security for indebtedness of the Company and its
respective subsidiaries. The rights of Executive under this Agreement may not
be assigned or encumbered by the Executive, voluntarily or involuntarily,
during his lifetime, and any such purported assignment shall be void. However,
all rights of the Executive under this Agreement shall inure to the benefit of
and be enforceable by the Executive's personal or legal representatives,
estates, executors, administrators, heirs and beneficiaries. All amounts
payable to the Executive hereunder shall be paid, in the event of the
Executive's death, to the Executive's estate, heirs and representatives.
11. Enforcement. The provisions of this Agreement shall be
regarded as divisible, and if any of said provisions or any part thereof are
declared invalid or unenforceable by a court of competent jurisdiction, the
validity and enforceability of the remainder of such provisions or parts hereof
and the applicability thereof shall not be affected thereby.
12. Amendment. This Agreement may not be amended or modified at
any time except by a written instrument approved by the Board and executed by
the Company and the Executive.
13. Withholding. The Company shall be entitled to withhold from
amounts to be paid to the Executive hereunder any federal, state, local, or
foreign withholding or other taxes or charges which it is from time to time
required to withhold. The Company shall be entitled to rely on an opinion of
counsel if any question as to the amount or requirement of any such withholding
shall arise.
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14. 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.
15. Governing Law. This Agreement and the rights and obligations
hereunder shall be governed by and construed in accordance with the laws of the
State of Delaware, without regard to principles of conflicts of law of Delaware
or any other jurisdiction. Any dispute arising out of this Agreement (other
than any disputes relating to Sections 7 and 9 hereof) shall be determined by
arbitration in New York, New York under the rules of the American Arbitration
Association then in effect and judgment upon any award pursuant to such
arbitration may be enforced in any court having jurisdiction thereof. Disputes
relating to Sections 7 and 9 shall be determined by any court of competent
jurisdiction separately and independently of any arbitration proceeding
(whether pending or concluded) with respect to any other provision of this
Agreement. No judicial proceeding relating to Sections 7 and 9 shall be stayed
or delayed by reason of any arbitration proceeding.
16. Miscellaneous.
(a) 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 X. Xxxxxxx XX
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
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If to the Company
or Capstar: Capstar Broadcasting Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
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.
17. Injunctive Relief. The parties hereto acknowledge and agree
that the Company would be irreparably injured if the provisions of Section 7
and Section 9 of this Agreement are not specifically enforced. Therefore,
notwithstanding and in addition to any rights and remedies available hereunder,
or under applicable law, the Company shall have the right to injunctive or such
other equitable relief as may be necessary specifically enforce the Executive's
performance under such provisions. The Executive agrees to waive the defense
in suit that the Company has an adequate remedy at law and to interpose no
opposition, legal or otherwise, as to the propriety of injunctive relief as a
remedy. Notwithstanding anything contained in this Section 17, the Company
shall be entitled to pursue all available remedies to recover any damages to
which the Company may be entitled.
18. No Waiver. No waiver by either party at any time of any
breach by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by the other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at any time.
19. Headings. The headings herein contained are for reference
only and shall not affect the meaning or interpretation of any provision of
this Agreement.
20. Complete Agreement. The provisions of this Agreement
constitute the complete understanding and agreement between the parties with
respect to the subject matter hereof. This Agreement may be executed in two or
more counterparts.
The signature page is attached hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
EXECUTIVE
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Xxxxxx X. Xxxxxxx XX
CAPSTAR RADIO BROADCASTING PARTNERS, INC.
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By:
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Title:
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Capstar Broadcasting Corporation hereby joins in
the execution and delivery of this Agreement
solely for the purposes of Section 4(c)
CAPSTAR BROADCASTING CORPORATION
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By:
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Title:
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