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EXHIBIT 10.13
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement"), dated
as of October , 1996, is made by and among Commodore Media, Inc., a
Delaware corporation, (the "Company"), Capstar Broadcasting Partners, Inc.,
and Xx. Xxxxx X. Xxxx, Xx. (the "Executive").
WHEREAS, effective as of October 16, 1996 ("Closing Date") and pursuant to
a Plan and Agreement of Merger dated as of June 21, 1996, entered into by and
among CMI Acquisition Company, Inc., the Company and certain designated
shareholders (the "Merger Agreement"), CMI Acquisition Company, Inc. has been
merged into the Company which now continues as the surviving corporation;
WHEREAS, effective as of the Closing Date and pursuant to the Merger
Agreement, Capstar Broadcasting Partners, Inc. has acquired a controlling
interest in the Company and hereby enters into this Agreement for the sole
purpose of confirming to the Executive that Capstar Broadcasting Partners, Inc.
agrees to cause the Company to abide by the terms and conditions of this
Agreement;
WHEREAS, prior to the Closing Date, the Executive has served as the Chief
Operating Officer of the Company pursuant to the terms of the Employment
Agreement dated as of March 23, 1992, as amended on May 31, 1994, and as
amended and restated April 21, 1995 ("Prior Agreement"), and the Executive has
acquired special and unique knowledge, abilities and expertise with respect to
the business of the Company;
WHEREAS, since the Company desires to continue to employ the Executive
after the Closing Date and for the Executive to serve as the President of the
Company, the parties hereto deem it necessary and desirable to amend and
restate the Prior Agreement to memorialize the terms and conditions of the
Executive's employment with the Company after the Closing Date.
NOW THEREFORE, in consideration of the promises and mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
adequacy of which are hereby acknowledged, the parties agree to the following:
1. Definitions.
"Annual Base Salary" shall mean the annual salary payable to Executive
pursuant to Section 5.1 hereof from time to time in effect during the Term of
Employment.
"Annual Incentive" shall have the meaning set forth in Section 5.2(a)
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hereof.
"Board" shall mean the Board of Directors of the Company.
"Cause" means (i) the commission by Executive of a felony, fraud,
embezzlement or an act of serious, criminal moral turpitude which, in case of
any of the foregoing, is reasonably likely to cause material harm to the
business of the Company or any Company Affiliate, (ii) the commission of an act
by Executive constituting material financial dishonesty against the Company or
any Company Affiliate, (iii) the repeated refusal by Executive to use his
reasonable and diligent efforts to follow the lawful and reasonable directives
(in light of the terms of this Agreement) of the Board with respect to a matter
or matters within the control of Executive, provided that, if such breach
described in this clause (iii) is curable, Executive will, subject to the
following proviso, be given written notice ( a "default notice") of such breach
and will be given an opportunity to cure such breach to the reasonable
satisfaction of the Board with thirty (30) days of receipt of such written
notice, and provided further that Executive will only be entitled to cure two
such defaults during the Term of Employment, or (iv) Executive's willful gross
neglect in carrying out his duties and responsibilities under this Agreement,
provided that, if such breach described in this clause (iv) is not likely to
have a material adverse effect on the Company and its Subsidiaries, taken as a
whole, Executive will, subject to the following proviso, be given a default
notice of such breach and will be given an opportunity to cure such breach to
the reasonable satisfaction of the Board within thirty (30) days of receipt of
such written notice, and provided, further, that Executive will only be
entitled to cure two such defaults during the Term of Employment.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commencement Date" shall have the meaning set forth in Section 3
hereof.
"Company Affiliate" shall mean any Person directly or indirectly
controlling, controlled by, or under common control with, the Company.
"Confidential Information" shall have the meaning set forth in Section 7
hereof.
"Date of Termination" shall mean the earlier of (a) the date of
termination, if any, specified in the Notice of Termination (which date shall
not be earlier than the date of receipt of such Notice of Termination ) or (b)
the date on which Executive's employment under its Agreement actually
terminates.
"Disability" shall mean Executive's inability to perform his duties and
responsibilities under this Agreement for a period of more than 180 days in any
twelve month period during the Term of Employment due to physical or mental
incapacity or impairment. A determination of Disability will be made by a
physician satisfactory to
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both Executive (or his personal representative) and the Company; provided that
if Executive (or such representative) and the Company cannot agree as to a
physician, then each will select a physician and such physicians shall together
select a third physician, whose determination as to Disability shall be
completed within ten (10) days of the date on which the disagreement between
Executive (or such representative) and the Company arose and the decision of
such third physician will be final and binding on Executive and the Company.
Executive (or his personal representative) and the Company shall have the right
to present to such physician such information and arguments as each deems
appropriate, including the opinion of other physicians.
"Effective Date" shall mean the Closing Date.
"GAAP" shall mean United States generally accepted accounting principles
as in effect on the date hereof and on a basis consistent with such principles
applied in the preparation of the Company's financial statements.
"Good Reason" shall be deemed to exist if, without the express written
consent of Executive, (a) Executive's rate of Annual Base Salary (as provided
in Section 5.1 of this Agreement) is reduced, (b) Executive suffers a
substantial reduction in his title, duties and responsibilities; provided,
however, that Good Reason shall not be deemed to exist if the Company employs
any person to fulfill Executive's duties hereunder during the 180-day period
referred to in the definition "Disability," (c) Executive is required to
provide services to the Company on a regular basis at a location outside the
geographic area described in Section 5.8 hereof, (d) the Company fails to pay
any amount in excess of $1,000 due to Executive hereunder within thirty (30)
days of written notice from Executive, or (e) the Company breaches in any
material respect of any of its material obligations pursuant to this Agreement
(other than a payment obligation covered by (d) above), provided that if such
breach described in this clause (e) is curable, the Company will, subject to
the following proviso, be given written notice of such breach and will be given
an opportunity to cure such breach to the reasonable satisfaction of Executive
within thirty (30 ) days of receipt of such written notice, and provided
further that the Company will only be entitled to cure two such breaches during
the Term of Employment.
"Noncompete Period" shall have the meaning set forth in Section 8(a)
hereof.
"Notice of Termination" shall have the meaning set forth in Section 6.4
hereof.
"Person" shall mean any natural or legal person including any
individual, partnership, joint venture, corporation, association, joint stock
company, limited liability company, trust, unincorporated organization or
government or any department or agency or political subdivision thereof.
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"Prior Agreement" shall have the meaning set forth in the recitals
hereof.
"Subsidiary" shall mean, with respect to any Person, a corporation of
which the securities having a majority of the voting power in electing
directors are, at the time of determination, owned by such Person, directly or
through one or more Subsidiaries.
"Term of Employment" shall have the meaning set forth in Section 3
hereof.
2. Employment. During the Term of Employment, subject to the terms and
provisions set forth in this Agreement, the Company shall employ the Executive
as its President and Executive hereby accepts such employment.
3. Term of Employment. The term of employment under this Agreement shall
commence as of the Effective Date (the "Commencement Date") and, unless earlier
terminated by the Company or Executive under Section 6 of this Agreement, shall
continue until April 30, 1999 (the "Term of Employment"). Notwithstanding the
foregoing, the Company and Executive may mutually agree to extend the term of
this Agreement, in which event all references herein to April 30, 1999 shall be
replaced with such mutually agreed upon extended date.
4. Positions, Responsibilities and Duties.
4.1 Duties. During the Term of Employment, the Executive, as President
of the Company, shall report to Xxxxxx Xxxxx and shall be responsible, subject
to the direction of the Board, for the day-to-day operations of the Company and
for such other duties and functions as may be directed from time to time by the
Board; provided that such duties and functions are reasonable and customary for
a President of a corporation engaged in the same industry as the Company and do
not materially extend the scope of the Executive's regular duties.
4.2 Attention to Duties and Responsibilities. During the Term of
Employment, Executive shall devote substantially all of his business time to
the business and affairs of the Company and shall use his best efforts and
ability to perform faithfully and efficiently his duties and responsibilities;
provided, however, that Executive shall be allowed, to the extent that such
activities do not interfere in any material respect with the performance by
Executive of his duties and responsibilities under this Agreement and do not
otherwise involve a material amount of his time, (i) to manage his personal
affairs and to serve on the boards of directors, advisory boards or committees
of, or otherwise participate in, civic or charitable organizations, trade
associations or not-for-profit corporations, (ii) with the prior written
approval of the Board, serve on the board of directors, advisory board or
committee of any for-profit corporation, and (iii) to write for publications or
speak publicly.
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5. Compensation and Related Matters.
5.1 Annual Base Salary. During the Term of Employment, as compensation
for the services to be provided by Executive under this Agreement, the Company
shall pay Executive an Annual Base Salary of Two Hundred Sixty Two Thousand
Five Hundred Dollars ($262,500), which shall be increased (but not decreased)
at the commencement of each calendar year by an amount which shall not be less
than (but, in the sole discretion of the Board, may be more than) five percent
(5%) of the Annual Base Salary in effect immediately prior to such increase.
The Annual Base Salary shall be payable in equal installments every two weeks.
5.2 Annual Incentive.
(a) Calculation of Annual Incentive. Subject to Section 6 hereof,
Executive shall be entitled to receive an annual incentive payment (the "Annual
Incentive") for each year or portion thereof during the Term of Employment.
For each calendar year or portion thereof during the Term of Employment ending
after December 31, 1995, the Annual Incentive percentages, targets, limits and
other factors shall be determined in good faith by the Board (after
consultation with the Executive) to provide the Executive with a reasonable
opportunity no less favorable to the Executive to earn a reasonable amount, no
less than One Hundred Fifty Thousand Dollars ($150,000.00), the amount that had
been available as the Annual Incentive for the period ending December 31, 1995.
The Executive shall make a proposal to the Board of such percentages, targets,
limits and other factors no later than fifteen (15) days after the commencement
of the calendar year or portion thereof to which they will relate, and the
Board, in consultation with the Executive, shall determine and adopt such
percentages, targets, limits and other factors as it deems advisable and notify
Executive of the same no later than forty-five (45) days after such
commencement. If Executive and the Company are unable to agree on the Annual
Incentive percentages, targets, limits and/or other factors, the dispute
between the parties shall be submitted to arbitration in accordance with
Section 10 hereof.
(b) Payment of Annual Incentive. The Annual Incentive shall be due
and payable by the Company as follows:
(i) On October 15 of each calendar year commencing on October
15, 1996, the Company shall make a good faith estimate of the Annual
Incentive to be paid to Executive in respect of such calendar year
(or portion thereof) and shall provide Executive with a written copy
thereof, together with such supporting information as executive may
reasonably request. The Company shall, with fifteen (15) days
thereof, pay to Executive an amount in cash equal to one-third of
such estimate.
(ii) On January 15 of each calendar year commencing on January
15, 1997, the Company shall make a good faith
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estimate of the Annual Incentive to be paid to Executive in
respect of the prior calendar year (or portion thereof) and shall
provide Executive with a written copy thereof, together with such
supporting information as Executive may reasonably request. The
Company shall, within fifteen (15) day thereof, pay to Executive an
amount in cash equal to the difference between (a) two-thirds of
such estimate and (B) the amount previously paid to Executive
pursuant to clause (i) above.
(iii) Within fifteen (15) days after the delivery by the
Company's accountants to the Company of the Company's audited
financial statements for the prior calendar year but in any event no
later than April 15 of such calendar year commencing with April 15,
1997, the Company shall finally determine the total Annual Incentive
to be paid to Executive for the prior calendar year (or portion
thereof) and pay to Executive the remaining portion, if any, of such
Annual Incentive and shall provide Executive with a written copy of
such final determination, together with such supporting information
as Executive may reasonably request.
The Annual Incentive shall be calculated by the Company's accountants in
accordance wit GAAP. In the event that the payments made under clauses (i) and
(ii) of this Section 5.2(b) are, in aggregate, in excess of the total amount
finally determined under clause (iii) of the Section 5.2(b) to be due to
Executive in respect of the Annual Incentive for a calendar year (or portion
thereof), Executive shall repay such excess to the Company within thirty (30)
days of such notice. If Executive fails to repay such excess in full within
such thirty-day period, in addition to any other remedy that may be available
to the Company by law or under this Agreement, the Company shall have the right
to withhold any payments due to Executive hereunder in an amount up to, and to
offset such withheld payments against, such excess.
5.3 Retirement and Savings Plan. During the Term of Employment,
Executive shall be entitled to participate in all pension, retirement, savings
and other employee benefit plans and programs, if any, generally applicable to
employees or available to executives of the Company in accordance with the terms
of such plans and programs.
5.4 Welfare Benefit Plans. During the Term of Employment, Executive,
Executive's spouse, if any, and the Executive's eligible dependents, if any,
shall be entitled top participate in and be covered by all welfare benefit
plans and programs, if any, generally applicable to employees or available to
executives of the Company in accordance with the terms of such plans and
programs.
5.5 Expense Reimbursement. During the Term of Employment, the Executive
shall be entitled to receive reimbursement for all reasonable expenses incurred
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by the Executive in performing his duties and responsibilities hereunder in
accordance with the policies and procedures of the Company as in effect at the
time the expense was incurred, as the same may be changed prospectively from
time to time.
5.6 Vacation Benefits. During the Term of Employment, Executive shall
be entitled to four weeks paid vacation annually at such times which do not
materially interfere with the operations of the Company.
5.7 Car Allowance. During the Term of Employment, the Company shall pay
the lease payments with respect to an automobile leased by Executive in amount
not to exceed $600 per month and shall reimburse Executive for any and all of
his reasonable expenses in respect of such automobile including but not limited
to insurance costs.
5.8 Geographic Location. Executive's services are now rendered and,
during the Term of Employment, shall continue to be rendered hereunder
primarily in (a) New York City, (b) at any location between Manhattan and lower
Fairfield County (including lower Fairfield County), (c)Allentown,
Pennsylvania, or (d) such other location mutually agreed to by the Company and
Executive.
5.9 Life Insurance. As of the Effective Date, the Company shall obtain
or continue the life insurance policy obtained by the Company prior to the
Merger under the Prior Agreement, until the earlier to occur of (i) April 21,
2005 or (ii) the death of Executive, and the Company shall maintain and pay all
premiums payable under, a ten-year term life insurance policy on Executive's
life with a nationally recognized and reputable carrier of insurance reasonably
acceptable to Executive for the benefit of the Company which policy provides (a)
that such carrier of insurance shall provide the Company and Executive with
thirty (30) days prior written notice of any cancellation of such policy and (b)
subject to the proviso immediately below, Six Hundred Fifty Thousand Dollars
($650,000) of life insurance; provided, however, that in no event shall the
Company be required to pay annual premiums in excess of One Thousand Dollars
($1,000) for any such life insurance policy. The Company's obligation under
this Section 5.9 shall survive any termination of Executive's employment under
this Agreement and the termination of this Agreement regardless of the
circumstances of such termination.
5.10 Option Plan. On and after the Effective Date, the Executive shall
participate in the Capstar Broadcasting Partners, Inc. 1996 Stock Option Plan,
in substantially the form attached hereto as Exhibit A, (the "Option Plan")
and, in connection therewith, the Executive shall be granted, as soon as
practicable after execution of this Agreement, options under the Option Plan to
purchase an aggregate of 549,500 shares of common stock, par value $.01 per
share, of Capstar Broadcasting Partners, Inc. at an exercise price of $1.00 per
share, with the grant of such options to be memorialized in written option
grant agreements, in substantially the forms attached hereto as Exhibit B. The
options granted to the Executive under this Section 5.10 shall be
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subject to the terms and conditions of the Option Plan and the written option
grant agreements memorializing the grant of such options to the Executive
thereunder.
6. Termination. Executive's employment hereunder shall terminate
automatically on April 30, 1999. Executive's employment hereunder may be
terminated prior to April 30, 1999 under the following circumstances:
6.1 Termination Due Death, Disability, Without Cause or for Good Reason.
(a) Upon sixty (60) days' prior written notice to Executive, the
Company may terminate Executive's employment under this Agreement without
Cause.
(b) Upon thirty (30) days' prior written notice to the Board,
Executive may terminate his employment under this Agreement for Good
Reason and such notification shall specify the act, or acts, on the basis of
which Executive has found Good Reason. The Board shall then be provided the
opportunity, within twenty (20) days of its receipt of such notification, to
meet with Executive to discuss such act or acts. If Executive does not rescind
his termination of employment at such meeting, Executive's employment by the
Company shall be terminated for Good Reason pursuant to this Section 6.1(b),
subject to the Company's right to seek arbitration of the existence of Good
Reason as provided in Section 11 of this Agreement.
(c) In the event of Executive's death, or a termination of
Executive's employment under this Agreement by either the Company or Executive
due to Disability, or a termination by the Company of Executive's employment
under this Agreement without Cause, or a termination by Executive of Executive's
employment under this Agreement for Good Reason, the Term of Employment shall
end and, notwithstanding Section 5 hereof, Executive, his estate or other legal
representative, as the case may be, shall only be entitled to:
(i) the continuation of the Annual Base Salary at the rate then
in effect (as provided in Section 5.1 of this Agreement) on the Date of
Termination for a period equal to (A) if the Date of Termination occurs
after the April 21, 1998 but prior to April 30, 1999, a twelve month
period commencing on such Date of Termination or (B) if the Date of
Termination occurs prior to April 21, 1998, the lesser of (x) a
twenty-four month period commencing on such Date of Termination and (y)
the period commencing on such Date of Termination and ending on April 30,
1999;
(ii) the pro rata amount of Annual Incentive due for the
calendar year (or portion thereof) in which the Date of Termination
occurs (based upon the number of days elapsed in such calendar year or
portion thereof prior to
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such Date of Termination);
(iii) any Annual Base Salary accrued to the Date of Termination
and any Annual Incentive relating to a prior year (or portion
thereof) due in accordance with this Agreement, but not yet paid as
of the Date of Termination;
(iv) reimbursement for all expenses reimbursable under Section
5.5 and 5.7 of this Agreement incurred as of the Date of
Termination, but not yet paid as of the Date of Termination;
(v) except to the extent inapplicable due to Executive's death,
the continuation of Executive's welfare benefits (as described in
Section 5.4 of this Agreement) at the level in effect on the Date of
Termination for a period equal to (A) if the Date of Termination
occurs after April 21, 1998 but prior to April 30, 1999, a twelve
month period commencing on such Date of Termination or (B) if the
Date of Termination occurs prior to April 21, 1998, the lesser of
(x) a twenty-four month period commencing on such Date of
Termination and (y) the period commencing on such Date of
Termination and ending on April 30, 1999 (or, to the extent that
such continuation is not permitted by applicable law or if the Board
so determines, the Company shall provide the economic equivalent in
lieu thereof);
(vi) except to the extent inapplicable due to Executive's death,
any other compensation and benefits as may be provided in accordance
with the terms and provisions of any applicable plans and programs,
if any, generally applicable to employees or available to executives
of the Company;
(vii) except to the extent inapplicable due to Executive's
death, the continuation of the life insurance policy pursuant to
Section 5.9 of this Agreement; and (viii) such rights as Executive
may have under any other written agreement between the Company and
the Executive which is currently in effect.
The amounts owed under Section 6.1(c)(i) shall be payable in equal installments
every two weeks from the Date of Termination through the end of the period with
respect to which such payments are to be made under Section 6.1(c)(i). Any
amounts owed under Section 6.1(c)(ii) shall be determined and payable in
accordance with Section 5.2. The amounts owed under Section 6.1(c)(iii) shall
be paid within fifteen (15) days of the Date of Termination, and the amounts
owed under Section 6.1(c)(iv) shall be paid in accordance with the policies and
procedures of the Company in effect at the time the applicable expenses were
incurred. Any amounts owed under Sections 6.1(c)(v) and (vi) shall be payable
in accordance with the terms of the applicable plans and programs. Any amounts
owed under Section 6.1(c)(ix) shall be payable in accordance with the
respective
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terms of the written agreements referred to therein.
6.2 Termination by the Company for Cause or the Termination of
Employment by Executive without Good Reason.
(a) The Company may terminate the Executive for Cause. In each case,
the existence of Cause must be confirmed by the Board prior to any termination
therefor. In the event of such a confirmation, the Company shall notify
Executive that the Company intends to terminate Executive's employment for
Cause under this Section 6.2. Such notification shall specify the act, or
acts, on the basis of which the Board has so confirmed the existence of Cause,
and Executive shall then be provided the opportunity together at the option of
Executive with counsel selected by Executive, not less than seven(7) or more
than thirty (30) days after his receipt of such notification, to meet with the
Board to discuss such act or acts. If the Board does not rescind such
confirmation at such meeting, Executive's employment by the Company shall
immediately be terminated for Cause under this Section 6.2, subject to
Executive's right to seek arbitration of the existence of Cause as provided in
Section 11 of this Agreement, provided that if in any such arbitration
proceeding, the arbitration determines that Cause did not exist, Executives'
employment shall be deemed to be terminated without Cause as of the date the
Company attempted to terminate Executive for Cause.
(b) In the event that the Company terminates Executive's employment
under this Agreement for Cause, or Executive terminates his employment with the
Company without Good Reason, the Term of Employment shall end and,
notwithstanding Section 5 hereof, Executive shall only be entitled to:
(i) any Annual Base Salary accrued to the Date of Termination and any
Annual Incentive relating to a prior year (or portion thereof) due in
accordance with this Agreement, but not yet paid as of the Date of
Termination;
(ii) reimbursement for all expenses reimbursable under Sections 5.5
and 5.7 of this Agreement incurred as of the Date of Termination, but
not yet paid as of the Date of Termination;
(iii) any other compensation then due and owing and benefits under a
benefit plan or program through the Date of Termination as may be provided
in accordance with terms and provisions of any applicable plans and
programs, if any, generally applicable to employees or available to
executives of the Company (including claims for benefits arising prior to
the Date of Termination that are payable in accordance with the terms and
provisions of the applicable plan or program, regardless of whether such
claims have been submitted as of the Date of Termination);
(iv) except to the extent inapplicable due to Executive's death, the
continuation of the life insurance policy pursuant to Section 5.9 of this
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Agreement; and
(v) such rights as Executive may have under any other written agreement
between the Company and the Executive which is currently in effect.
The amounts owed under Section 6.2(b)(i) shall be paid within fifteen (15) days
of the Date of Termination, and the amounts owed under section 6.2(b)(ii) shall
be paid in accordance with the policies and procedures of the Company in effect
at the time the applicable expenses were incurred. Any amount owed under
Section 6.2(b)(iii) shall be payable in accordance with the terms of the
applicable plans and programs. Any amounts owed under Section 6.2(b)(v) shall
be payable in accordance with the respective terms of the written agreement
referred to therein.
6.3 No Mitigation; No Offset. In the event of any termination of
employment under this Section 6, Executive shall be under no obligation to seek
other employment and there shall be no offset against any amounts due Executive
under this Agreement on account of any remuneration attributable to any
subsequent employment that Executive may obtain. Any amounts due under this
Section 6 are in the nature of severance payments, or liquidated damages, or
both, and are not in the nature of penalty.
6.4 Notice of Termination. Any termination of Executive's employment
under this Section 6 (other than a termination on April 30, 1999 or termination
was a result of Executive's death) shall be communicated by a notice of
termination (the "Notice of Termination") to the other party hereto given in
accordance with Section 12.3 of this Agreement. Such Notice of Termination
shall (a) indicate the specific termination provision in this Agreement relied
upon, (b) set froth in reasonable detail the facts and circumstances claimed to
provide basis for termination of Executive's employment under the provision so
indicated, and (c) if the termination date is other than the date of receipt of
such Notice of Termination, specify the date on which Executive's employment is
to be terminated (which date shall not be earlier than the date on which such
Notice of Termination is actually received).
7. Confidential Information. Executive acknowledges that the confidential
information obtained by him while employed by the Company concerning the
business or affairs of the Company, any Company Affiliate, or any stockholder
of the Company ("Confidential Information") is the property of the Company,
such Company Affiliate, or such stockholder, as the case may be. For purposes
of this Agreement, the term "Confidential Information" does not include
information that Executive can demonstrate (a) was in Executive's possession
prior to first being employed by the Company, provided that such information is
not known by Executive to be subject to another confidentiality agreement with,
or other obligation of secrecy to, the Company or another party, (b) is
generally available to the public and became generally available to the public
other than as a result of a disclosure by Executive in violation of this
Agreement, (c) became available to Executive on a non-confidential basis from a
third party, provided that such third party is not known by Executive to be
bound by a confidentiality
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agreement with, or other obligation of secrecy to, the Company or another party
or is otherwise prohibited from providing such information to Executive by a
contractual, legal or fiduciary obligation to the Company , or (d) Executive is
required to disclose pursuant to applicable law or regulation (as to which
information, Executive will provide the Company with prior notice of such
requirement and, if practicable, an opportunity to obtain an appropriate
protective order). Executive agrees that he will not during the Term of
Employment and for the two-year period following the Term of Employment,
willfully disclose Confidential Information to any Person (other than employees
of the Company or any Subsidiary thereof or any other person expressly
authorized by the Board to receive Confidential Information or otherwise as
required in the course of his duties during the Term of Employment) or use for
his own account any Confidential Information without the prior written consent
of the Board; provided, however, that Executive may disclose Confidential
Information in connection with the resolution of any dispute arising in
connection with the rights and obligations under this Agreement or any other
agreements entered into by the parties in connection with the transactions
contemplated by the Merger Agreement to the arbitrator in an arbitration
proceeding pursuant to Section 10 upon receipt of appropriate assurances that
the arbitrator and the other persons involved in such proceeding shall maintain
the confidentiality of all such Confidential Information. Executive shall
deliver to the Company at such time as the Board may request in writing, all
memoranda, notes, plans, records, reports, computer tapes and software and
other documents and data (and copies thereof) containing Confidential
Information which he may then possess or have under his control.
8. Noncompete, Non-Solicitation.
(a) Executive acknowledges that in the course of his employment with the
Company he will become familiar with Confidential Information and that his
services will be special unique and extraordinary value to the Company.
Therefore, Executive agrees that, during the Term of Employment and, for (i)
two years thereafter, or (ii) if Executive's employment is terminated without
Cause or Executive resigns for Good Reason, for one year thereafter, provided
that all amounts in excess of $1,000 required to be paid to Executive under
this Agreement are promptly paid when due in accordance with this Agreement
(in any case, the "Noncompete Period"), he shall not directly or indirectly
own, manage, control, participate in, consult with, render services for, or in
any manner engage in any broadcast radio business competing with the businesses
of the Company or any of its Subsidiaries in any geographic market (as defined
by Arbitron Metro) in which the Company or any of its Subsidiaries (x) operates
on the Date of the Termination or (y) commences operations during the
Noncompete Period and in either case continues to operate during the Noncompete
Period; provided, however, that for purposes of this clause (y) operations in a
market shall be deemed to be commenced during the Noncompete Period only if the
Company or such Subsidiary have had substantial discussions prior to the Date
of Termination concerning the commencement of such operations. Nothing herein
shall prohibit Executive from being a passive owner of not more than seven and
one-half percent (7 1/2%) of the outstanding stock of any class of a
corporation which is publicly traded, so long as Executive has no active
participation in
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the business of such corporation.
(b) During the Noncompete Period, Executive shall not directly or
indirectly through another person (i) induce or attempt to induce any employee
of the Company or any Subsidiary of the Company to leave the employ of such
Person, or in any way interfere with the employment relationship between the
Company or any Subsidiary of the Company and any employee thereof, (ii) hire
any individual who was an executive of the Company or its Subsidiaries, a
station or regional manager of the Company or its Subsidiaries or a radio
personality employed by the Company or its Subsidiaries at any time during the
Term of Employment (other than individuals who have not been employed by the
Company or a Subsidiary of the Company for a period of at least six months
prior to employment by Executive directly or indirectly through another
Person), or (iii) induce or attempt to induce any customer, supplier, licensee
or other Person having a business relationship with the Company or any
Subsidiary of the Company to cease doing business with the Company or such
Subsidiary of the Company, or interfere materially with the relationship
between any such customer, supplier, licensee or other Person having a business
relationship with the Company or and Subsidiary of the Company.
(c) If, at the time of enforcement of this Section 8, a court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area held to be unreasonable and
that the court shall be allowed to revise the restrictions contained herein and
held to be unreasonable to cover the maximum period, scope and area permitted
by law.
9. Non-Exclusivity of Rights. Nothing in this Agreement shall limit or
otherwise prejudice such rights as Executive may have under any future
agreements with the Company.
10. Resolution of Disputes. Any disputes arising under or in connection
with this Agreement shall be resolved by arbitration, to be held in New York,
New York, in accordance with the Commercial Arbitration Rules and procedures of
the American Arbitration Association. Such arbitration shall be before a
single arbitrator who shall be a retired federal or New York State judge
acceptable to the Company and Executive. In the event that Executive and the
Company cannot agree upon an arbitrator within thirty (30) days of a notice
demanding such agreement from one to the other, the arbitrator shall be chosen
by the American Arbitration Association in accordance with its Commercial
Arbitration Rules. The decision of the arbitrator shall be final, conclusive
and binding upon the Company and Executive. All costs, fees and expenses,
including attorney fees, of any arbitration in connection with this Agreement,
which results in any final decision of the arbitrator requiring the Company to
make a payment to Executive , shall be borne by, and be the obligation of, the
Company. In no event shall Executive be required to reimburse the Company for
any of the costs and expenses incurred by the Company
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relating to any arbitration. The obligations of the Company and Executive
under this Section 11 shall survive the termination for any reason of the Term
of Employment (whether such termination is by the Company, by Executive, or
upon the expiration of the Term of Employment). Pending the outcome or
resolution of any arbitration in connection with this Agreement other than a
dispute relating to Executive's termination for Cause, the Company shall
continue payment of all amounts, payments and benefits which are due to
Executive under this Agreement; provided that in the event that the decision
rendered by the arbitrator indicates that Executive was not entitled to
continue to receive all or any portion of such amounts, payments and benefits,
Executive shall immediately reimburse the Company for the same; and provided
further, that in the event the decision rendered by the arbitrator indicates
that Executive was wrongfully terminated for Cause, the Company will pay
Executive all amounts Executive is entitled to receive under Section 6.1(c).
11. Successors.
11.1 Executive. This Agreement is personal to Executive and, without
the prior express written consent of the Company, shall not be assignable by
Executive, except that the Executive's rights to receive any compensation or
benefits under this Agreement may be transferred or assigned pursuant to
testamentary disposition, intestate succession or pursuant to a qualified
domestic relations order. This Agreement shall inure to the benefit of and be
enforceable by Executive's heirs, beneficiaries and/or legal representatives.
11.2 The Company. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns; provided that the
Company shall only assign this Agreement to a purchaser of substantially all of
the business of the Company, which purchaser shall agree to assume all of the
Company's obligations hereunder.
12. Miscellaneous.
12.1 Applicable Law. The construction, validity and interpretations of
this Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
12.2 Amendments/Waiver. This Agreement may not be amended or modified
other than by written agreement executed by the parties hereto or their
respective successors and legal representatives. No waiver by any party to
this Agreement of any breach of any term, provision or condition of this
Agreement by the other party shall be deemed a waiver of a similar or
dissimilar term, provision or condition at the same time, or any prior or
subsequent time.
12.3 Notices. All notices, waivers and other communications hereunder
shall be in writing and shall be given by hand-delivery to the other party, by
facsimile
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(with appropriate confirmation of transmission and with a hard copy to promptly
follow by registered or certified mail, return receipt request, postage
prepaid), by reputable overnight courier, or by registered or certified mail,
return receipt requested, postage prepaid, and shall be deemed delivered when
actually delivered by hand, upon receipt of confirmation of facsimile
transmission, three days after mailing, or one day after dispatch by overnight
courier, addressed as follows:
If to Executive:
Xx. Xxxxx X. Xxxx, Xx.
0000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone (000) 000-0000
If to the Company:
Attn: Chairman of the Board
Commodore Media, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith.
12.4 Withholding. Notwithstanding anything else to the contrary
herein, the Company may withhold from any amounts payable under this Agreement
such taxes as shall be required to be withheld pursuant to any applicable law
or regulation. Where amounts are payable to Executive pursuant to this
Agreement both in cash and in a form other than cash, the Company may, at its
option and upon prior notice to Executive, withhold from such cash payments, or
withhold from such payments in a form other than cash, or withhold from both.
12.5 Expenses. The Company shall promptly reimburse Executive for the
reasonable attorney's fees of and expenses payable to the law firm of Xxxxx
Xxxxxxxxxx for its representation of Executive in connection with the
negotiation and preparation of this Agreement, and the other agreements
contemplated in connection with the Merger contemplated hereby and thereby,
against delivery of an invoice for such fees and expenses.
12.6 Severability. If any provision of this Agreement is held illegal,
invalid or unenforceable under nay present or future law, and if the rights or
obligations of any party hereto under this Agreement will not be materially and
adversely affected thereby: (a) such provision will be fully severable; (b)
this Agreement will be construed
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and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof; (c) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom; and (d) in
lieu of such illegal, invalid or unenforceable provision, there will be added,
to the extent possible, automatically as a part of this Agreement a legal,
valid and enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as shall be agreed upon by the Company and Executive.
12.7 Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
12.8 Entire Agreement. This Agreement contains the entire agreement
between the parties concerning the subject matter hereof and supersedes all
prior agreements (including, without limitation, the Prior Agreement),
understandings, discussions, negotiations and undertakings, whether written or
oral, between the parties with respect thereto.
12.9 Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
12.10 Representation. Executive represents and warrants that the
performance of Executive's duties and obligations under this Agreement will not
violate any agreement between Executive and any other Person.
12.11 Survivorship. The respective rights and obligations of the
parties under this Agreement shall survive any termination of this Agreement or
Executive's employment hereunder for any reason to the extent necessary to the
intended preservation of such rights and obligations
[END OF PAGE]
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Executive has hereunto set his hand, and the Company
has caused this Amended and Restated Employment Agreement to be executed in its
name and on behalf by its authorized representative, all as of the day and year
first above written.
COMMODORE MEDIA, INC.
By: /s/ XXXXXXX X. XXXXX
---------------------------
Its: Treasurer
---------------------------
EXECUTIVE
/s/ XXXXX X. XXXX, XX.
------------------------------
XXXXX X. XXXX, XX.
FOR THE SOLE PURPOSE OF CONFIRMING TO THE EXECUTIVE THAT CAPSTAR BROADCASTING
PARTNERS, INC. AGREES TO CAUSE THE COMPANY TO ABIDE BY THE TERMS AND CONDITIONS
OF THIS AGREEMENT AS AMENDED AND RESTATED HEREIN.
CAPSTAR BROADCASTING PARTNERS,
INC.
By: /s/ XXXXX XXXXXXX
----------------------------
Its: Vice President
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10871
