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EXHIBIT 10.9.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of the 20th day of February, 1997 by and between Xxxxxx Communications
Corporation, a Delaware corporation (together with its successors and assigns
permitted hereunder, the "Company"), and Xxxxx X. Xxxxxx (the "Executive").
WHEREAS, OCC Acquisition Company, Inc., a Delaware corporation,
("Mergeco"), that is a wholly-owned subsidiary of Commodore Media, Inc., a
Delaware corporation ("Holding Corp"), will merge with and into the Company,
whereby the Company will become a wholly-owned subsidiary of Holding Corp (the
"Merger");
WHEREAS, it is a condition to Mergeco's obligation to consummate the
Merger that the Company enter into this Agreement with the Executive; 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 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 on the effective date of the Merger (the "Effective
Date") and ending on the fifth anniversary of such date (the "Employment
Period"); provided, however, that commencing on such fifth anniversary and on
each anniversary thereafter, the Employment Period shall automatically be
extended for one additional year unless at least six months prior to such
anniversary (but no more than 12 months prior to such anniversary), 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 President and Chief Executive Officer
of the Company and, in so doing, shall report to the Board. 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
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have such other powers and duties (including holding officer positions 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 President and Chief Executive 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 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 (A) serve on
corporate, civic or charitable boards or committees, (B) deliver lectures or
fulfill speaking engagements and (C) 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, at least equal to $375,000. Commencing on
January 1, 1998, and on each subsequent January 1 as long as the Executive
remains an employee of the Company (each such January 1 being herein referred
to as an "Adjustment Date"), the Annual Base Salary of the Executive shall be
adjusted to reflect increases in the Consumer Price Index for Urban Wage
Earners and Clerical Workers for the New York xxxxxxxxxxxx xxxx (0000 = 100),
published by the Bureau of Labor Statistics, United States Department of Labor
(the "Index"). On each Adjustment Date, the Executive's Annual Base Salary
shall be increased by a percentage of the Annual Base Salary for the prior
calendar year equal to the percentage increase in the Index for the prior
calendar year. The result of such calculation shall constitute the Executive's
Annual Base Salary, as adjusted, commencing on the Adjustment Date then at hand
and continuing until the next Adjustment Date. If (A) the Index ceases using
the 1967 average of 100 as the basis of calculation, (B) a significant change
is made in the number or nature (or both) of items used in determining the
Index, or (C) the Index is discontinued for any reason, then the Company and
the Executive shall, in good faith, agree upon a substitute Index or procedure
which reasonably reflects and monitors the salaries of urban wage earners and
clerical workers in the New York metropolitan area. 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. In addition to Annual Base Salary,
the Executive shall be awarded during the term of the Executive's employment
such bonuses (each a "Bonus"), if any, as shall be determined by the Board
consistent with its practices for executive officers of the Company. In
addition to any Bonus, the Executive shall receive on the first day of the
first calendar month after
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the date of this Agreement and on the first day of each calendar month
thereafter for a period of 60 months (including the first payment date) a
guaranteed bonus (each a "Guaranteed Bonus") equal to $25,000.
(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) Non-qualified Stock Options. In addition to
any benefits the Executive may receive pursuant to paragraph 2(b)(iii), Capstar
Broadcasting Partners, Inc., a Delaware corporation ("Capstar"), will grant
Executive non-qualified stock options (the "Executive Options") exercisable for
1,500,000 shares of common stock, par value $0.01 per share ("Common Stock"),
of Capstar. The Executive Options shall be granted under Capstar's 1996 Stock
Option Plan, as amended (the "Stock Option Plan"). The exercise price per
share for the Executive Options and, except as otherwise provided in Section 4
and subject to any further limitations set forth in the Stock Option Plan, the
vesting period shall be as set forth in the option agreement by and between the
Executive and Capstar entered into as of even date herewith. Except as
otherwise provided in Section 4, the Executive Options shall be exercisable
until 5:00 p.m., Dallas, Texas time, on the sixth anniversary of the Effective
Date at which time they shall expire.
(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.
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(ix) Signing Bonus. On the date hereof, the
Company shall pay the Executive a signing bonus equal to $300,000.
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 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); or (v)
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, 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.
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(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 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 (A) there is substituted a comparable benefit
that is economically substantially equivalent to the terminated or reduced
benefit prior to such termination or reduction or (B) 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);
(v) prior to the termination of the Executive for
Cause, the Executive's ceasing to be a director of the Company for any reason
other than his death, Disability or voluntary resignation;
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(vi) the relocation or transfer of the Executive's
principal office to a location more than 75 miles from the Company's current
executive offices set forth in Section 11(b) hereof; or
(vii) 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 (A) this Agreement or (B) 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.
(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, Cause or a termination made
pursuant to a Board Determination 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
pursuant to a Board Determination, 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
or pursuant to a Board Determination, 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.
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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 (A) 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"); and (2) 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; (B) in regular installments in accordance with the customary payroll
practices of the Company (x) if the remainder of the Employment Period is 24
months or less, the Executive's then current Annual Base Salary for the
remainder of the Employment Period, (y) if the remainder of the Employment
Period is more than 24 months but less than 36 months, the sum of two times the
Executive's then current Annual Base Salary plus, in recognition of the
Executive's longer term of Non- Competition (as defined in Section 9), the
Executive's then current Annual Base Salary for the remainder of the Employment
Period after 24 months have expired from the Date of Termination, or (z) if the
remainder of the Employment Period is more than 36 months, the sum of two times
the Executive's then current Annual Base Salary plus, in recognition of the
Executive's longer term of Non-Competition, the Executive's then current Annual
Base Salary for a period of 12 months after 24 months have expired from the
Date of Termination; and (C) his Guaranteed Bonus as provided in Section
2(b)(ii) hereof as though the Executive had not been terminated.
Notwithstanding paragraph (B) of the immediately preceding sentence, if the
Company failed to achieve at least 60% of the Company's annual budget for
operating profit for the last calendar year ended prior to the termination of
the Executive (whether by the Company other than for either Cause or Disability
or by the Executive for Good Reason), then the Company shall only be obligated
to pay to the Executive, in regular installments in accordance with the
customary payroll practices of the Company, the Executive's then current Annual
Base Salary for a period of 12 months, and shall not be obligated to pay the
Executive any additional compensation in consideration of the term of
Non-Competition.
(ii) Notwithstanding the terms or conditions of
any 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., stock 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 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 (ii) of
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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.
(iii) Except as otherwise provided in Section 4(e), 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; provided, however, that if the Company failed to achieve
at least 60% of the Company's annual budget for operating profit for the last
calendar year ended prior to the termination of the Executive (whether by the
Company other than for either Cause or Disability or by the Executive for Good
Reason), then the Executive (and members of his family) shall only be entitled
to participate in the Company's Welfare Plans for a period of 12 months from
the Date of Termination.
(b) Death. 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) in a lump sum in cash within ten
days after the Date of Termination 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(e), 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, the Company also shall pay to
the Executive's legal representatives the Executive's Guaranteed Bonus as
provided in Section 2(b)(ii) hereof. Further, notwithstanding the terms or
conditions of any 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., 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 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) Disability. If the Executive's employment is
terminated by reason of the Executive's Disability during the Employment
Period, the Company shall have no further payment obligations to the Executive
or his legal representatives under this Agreement, 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 Guaranteed Bonus.
In addition, except as otherwise provided in Section 4(e), the Executive (and
members of his 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 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., stock 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 stock option, stock appreciation right or similar agreement pursuant to
its terms or (y) the first anniversary of the Date of Termination.
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(d) Cause; Other than for Good Reason. If the
Executive's employment shall be terminated by the Company for 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 Welfare Plans to the Date of Termination.
(e) 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 (iii) of Section 4(a), Section 4(b), or Section 4(c),
as applicable, by either providing to the 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 its
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).
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(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 its 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 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, for the limited purposes set forth on the
signature page hereto, Capstar, and their respective 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.
(d) Capstar 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 Capstar to assume expressly
and agree to perform this Agreement in the same manner and to the same extent
that Capstar would be required to perform it if no such succession had taken
place. As used in this Agreement, "Capstar" shall mean Capstar 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 the first
anniversary of (i) the Date of Termination if the Executive's employment is
terminated by the Company for Cause or due to Disability or by the Executive
without Good Reason or (ii) the date of the last scheduled installment payment
to be made by the Company to the Executive pursuant to clause (B) of paragraph
4(a)(i) if the Executive's
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employment is terminated by the Company without Cause (and not due to
Disability) or by the Executive for Good Reason.
(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 transmits a
primary or city-grade signal (A), with respect to the term of Non-Competition
that is during the Executive's employment, during such term of employment, and
(B), 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 (iii) divert or take away any customers or suppliers of the
Company 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.
(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 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
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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: Xxxxx X. Xxxxxx
000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxxx 00000
If to the Company: c/o Capstar Broadcasting Partners, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
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 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.
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(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 New York, New York, and that any
arbitration commenced in any other venue will be transferred to New York, New
York, 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.
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(k) Section 6 and 9 of this Agreement shall survive the
termination of this Agreement.
[Remainder of page intentionally left blank]
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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
-----------------------------
Xxxxx X. Xxxxxx
XXXXXX COMMUNICATIONS CORPORATION
-----------------------------
By:
--------------------------
Title:
-----------------------
Capstar Broadcasting Partners, Inc. hereby
joins in the execution and delivery of this
Agreement solely for the purposes of clause
(v) of Section 2(b), clause (ii) of Section
4(a) and Sections 4(b), 4(c) and 8(c).
CAPSTAR BROADCASTING PARTNERS, INC.
By:
--------------------------
Title:
----------------------
