EMPLOYMENT AGREEMENT
Exhibit 10.11
This Employment Agreement is entered into and effective this 29 th day of
June, 2008 (the “Effective Date”) between Clear Channel Broadcasting, Inc. (the “Company”) and Xxxx
Xxxxx (the “Employee”).
WHEREAS, the Company and the Employee desire to enter into an employment relationship under
the terms and conditions set forth in this Agreement, which supersedes the prior employment
agreement dated February 18, 2004;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. TERM OF EMPLOYMENT. Company hereby agrees to employ Employee, and Employee hereby agrees to be
employed by Company, in accordance with the terms and conditions of this Agreement, for the period
commencing as of the Effective Date and ending on June 29, 2013 (the “Employment Period” or
“Term”). Thereafter, beginning on June 30, 2013, the Employment Period shall be automatically
extended from year to year unless either Company or Employee gives written notice of non-renewal on
or before April 1, 2013, or annually on each April 1 thereafter, that the Employment Period shall
not be extended. The term “Employment Period” shall refer to the Employment Period if and as so
extended. If this Agreement is extended pursuant to the foregoing provisions, all terms and
conditions of this Agreement shall remain the same; provided, however, that the terms of this
Agreement may be modified in accordance with Section 18.
2. TITLE AND DUTIES. The Employee’s title is President and Chief Executive Officer, Clear Channel
Radio. The Employee will perform job duties that are usual and customary for this position, and
will perform additional services and duties that the Company may from time to time designate that
are consistent with the usual and customary duties of this position. The Employee will report to
Xxxx Xxxx, Chief Executive Officer, Clear Channel Communications, Inc. The Employee will devote his
full working time and efforts to the business and affairs of Clear Channel Radio.
3. COMPENSATION AND BENEFITS.
(A) BASE SALARY. The Company will continue to pay Employee his annual base salary through
January 31, 2009. Employee is eligible for a raise after completion of the 2008 compensation study
on or about October 1, 2008. Thereafter, Employee will be eligible for annual raises after
January 31, 2009 commensurate with Company policy. All payments of base salary will be made in
installments according to the Company’s regular payroll practice, prorated monthly or weekly where
appropriate, and subject to any increases that are determined to be appropriate by the Board or its
Compensation Committee.
(B) PERFORMANCE BONUS. No later than March 15 of each calendar year following that in which
the Performance Bonus was earned during the term, Employee will be eligible to receive a
performance bonus as set forth in the Performance Bonus Calculation attached as “Exhibit A” to this
Employment Agreement.
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(C) EMPLOYMENT BENEFIT PLANS. The Employee will be entitled to participate in all pension,
profit sharing, and other retirement plans, all incentive compensation plans, and all group health,
hospitalization and disability or other insurance plans, paid vacation, sick leave and other
employee welfare benefit plans in which other similarly situated employees of the Company may
participate as stated in the employee guide.
(D) EXPENSES. The Company will pay or reimburse the Employee for all normal and reasonable
travel and entertainment expenses incurred by the Employee in connection with the Employee’s
responsibilities to the Company upon submission of proper vouchers in accordance with the Company’s
expense reimbursement policy. Any reimbursement that would constitute nonqualified deferred
compensation subject to Section 409A shall be subject to the following additional rules: (i) no
reimbursement of any such expense shall affect the Employee’s right to reimbursement of any other
such expense in any other taxable year; (ii) reimbursement of the expense shall be made, if at all,
not later than the end of the calendar year following the calendar year in which the expense was
incurred; and (iii) the right to reimbursement shall not be subject to liquidation or exchange for
any other benefit.
(E) STOCK OPTIONS OR OTHER FORM OF ADDITIONAL CONSIDERATION. Employee shall be eligible to
receive Stock Options or an alternative form of additional compensation, subject to performance
criteria, input from the CEO of Clear Channel Communications, Inc. (CCU), and approval from CCU’s
Board of Directors. In Company’s sole discretion, Company may at any time (i) alter, suspend or
discontinue its stock option grant or long term incentive compensation program or (ii) replace the
program with an alternative form of additional compensation.
4. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. During the course of the Employee’s employment with
the Company, the Company will provide the Employee with access to certain confidential information,
trade secrets, and other matters which are of a confidential or proprietary nature, including but
not limited to the Company’s customer lists, pricing information, production and cost data,
compensation and fee information, strategic business plans, budgets, financial statements, and
other information the Company treats as confidential or proprietary (collectively the “Confidential
Information”). The Company provides on an ongoing basis such Confidential Information as the
Company deems necessary or desirable to aid the Employee in the performance of his duties. The
Employee understands and acknowledges that such Confidential Information is confidential and
proprietary, and agrees not to disclose such Confidential Information to anyone outside the Company
except to the extent that (i) the Employee deems such disclosure or use reasonably necessary or
appropriate in connection with performing his duties on behalf of the Company; (ii) the Employee is
required by order of a court of competent jurisdiction (by subpoena or similar process) to disclose
or discuss any Confidential Information, provided that in such case, the Employee shall promptly
inform the Company of such event, shall cooperate with the Company in attempting to obtain a
protective order or to otherwise restrict such disclosure, and shall only disclose Confidential
Information to the minimum extent necessary to comply with any such court order; or (iii) such
Confidential Information becomes generally known to and available for use in the industries in
which the Company does business, other than as a result of any action or inaction by the Employee.
The Employee further agrees that he will not during employment and/or at any time thereafter use
such Confidential Information in competing, directly or indirectly, with the
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Company. At such time as the Employee shall cease to be employed by the Company, he will
immediately turn over to the Company all Confidential Information, including papers, documents,
writings, electronically stored information, other property, and all copies of them, provided to or
created by him during the course of his employment with the Company. This nondisclosure covenant is
binding on the Employee, as well as his heirs, successors, and legal representatives, and will
survive the termination of this Agreement for any reason.
5. NONHIRE OF COMPANY EMPLOYEES. To further preserve the rights of the Company pursuant to the
nondisclosure covenant discussed above, and for the consideration promised by the Company under
this Agreement, during the term of the Employee’s employment with the Company and for a period of
twelve months thereafter, regardless of the reason for termination of employment, the Employee will
not, directly or indirectly, (i) hire any current or prospective employee of the Company, or any
subsidiary or affiliate of the Company (including, without limitation, any current or prospective
employee of the Company within the 6-month period preceding the Employee’s last day of employment
with the Company or within the 12-month period of this covenant) who worked, works, or has been
offered employment by the Company; (ii) solicit or encourage any such employee to terminate their
employment with the Company, or any subsidiary or affiliate of the Company; or (iii) solicit or
encourage any such employee to accept employment with any business, operation, corporation,
partnership, association, agency, or other person or entity with which the Employee may be
associated.
6. NON-COMPETITION. To further preserve the rights of the Company pursuant to the nondisclosure
covenant discussed above, and for the consideration promised by the Company under this Agreement,
during the Employee’s employment with the Company and for a period of one year thereafter,
regardless of the reason for termination of employment, the Employee will not, directly or
indirectly, as an owner, director, principal, agent, officer, employee, partner, consultant,
servant, or otherwise, carry on, operate, manage, control, or become involved in any manner with
any business, operation, corporation, partnership, association, agency, or other person or entity
which is in the same business as the Company in any location in which the Company, or any
subsidiary or affiliate of the Company, operates or has plans or has projected to operate during
the Employee’s employment with the Company, including any area within a 50-mile radius of any such
location. The foregoing shall not prohibit the Employee from owning up to 5.0% of the outstanding
stock of any publicly held company. Notwithstanding the foregoing, after the Employee’s employment
with the Company has terminated, upon receiving written permission by the Board, the Employee shall
be permitted to engage in such competing activities that would otherwise be prohibited by this
covenant if such activities are determined in the sole discretion of the Board in good faith to be
immaterial to the operations of the Company, or any subsidiary or affiliate of the Company, in the
location in question.
To further preserve the rights of the Company pursuant to the nondisclosure covenant discussed
above, and for the consideration promised by the Company under this Agreement, during the term of
the Employee’s employment with the Company and for a period of one year thereafter, regardless of
the reason for termination of employment, the Employee will not, directly or indirectly, either for
himself or for any other business, operation, corporation, partnership, association, agency, or
other person or entity, call upon, compete for, solicit, divert, or take away, or attempt to divert
or take away current or prospective customers (including, without limitation, any customer with
whom the Company, or any subsidiary or affiliate of the
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Company, (i) has an existing agreement or business relationship; (ii) has had an agreement or
business relationship within the six-month period preceding the Employee’s last day of employment
with the Company; or (iii) has included as a prospect in its applicable pipeline) of the Company,
or any subsidiary or affiliate of the Company.
The Company and the Employee agree that the restrictions contained in this noncompetition
covenant are reasonable in scope and duration and are necessary to protect the Company’s business
interests and Confidential Information. If any provision of this noncompetition covenant as applied
to any party or to any circumstance is adjudged by a court or arbitrator to be invalid or
unenforceable, the same will in no way affect any other circumstance or the validity or
enforceability of this Agreement. If any such provision, or any part thereof, is held to be
unenforceable because of the scope, duration, or geographic area covered thereby, the parties agree
that the court or arbitrator making such determination shall have the power to reduce the scope
and/or duration and/or geographic area of such provision, and/or to delete specific words or
phrases, and in its reduced form, such provision shall then be enforceable and shall be enforced.
The parties agree and acknowledge that the breach of this noncompetition covenant will cause
irreparable damage to the Company, and upon breach of any provision of this noncompetition
covenant, the Company shall be entitled to injunctive relief, specific performance, or other
equitable relief; provided, however, that this shall in no way limit any other remedies which the
Company may have (including, without limitation, the right to seek monetary damages).
Should the Employee violate the provisions of this noncompetition covenant, then in addition
to all other rights and remedies available to the Company at law or in equity, the duration of this
covenant shall automatically be extended for the period of time from which the Employee began such
violation until he permanently ceases such violation.
Notwithstanding anything to the contrary in this Agreement, if the noncompetition covenant is
adjudged to be invalid or unenforceable, or if it is substantially reduced in scope or geographic
area, and if Employee then performs services in any capacity in competition with the Company, then
the Company shall have no severance compensation obligations to Employee under Section 8 of this
Agreement.
7. TERMINATION. The Employee’s employment with the Company may be terminated under the following
circumstances:
(A) DEATH. The Employee’s employment with the Company shall terminate upon his death.
(B) DISABILITY. The Company may terminate the Employee’s employment with the Company if, as a
result of the Employee’s incapacity due to physical or mental illness, the Employee is unable to
perform his duties under this Agreement on a full-time basis for more than 90 days in any 12 month
period, as determined by the Company.
(C) TERMINATION BY THE COMPANY. The Company may terminate the Employee’s employment without
cause, subject to the severance obligations in Section 8(d). The Company may also terminate his
employment for Cause. A termination for Cause must be
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for one or more of the following reasons: (i) conduct by the Employee constituting a material act
of willful misconduct in connection with the performance of his duties, including, without
limitation, violation of the Company’s policy on sexual harassment, misappropriation of funds or
property of the Company or any of its affiliates other than the occasional, customary and de
minimis use of Company property for personal purposes, or other willful misconduct as determined in
the sole reasonable discretion of the Company; (ii) continued, willful and deliberate
non-performance by the Employee of his duties hereunder (other than by reason of the Employee’s
physical or mental illness, incapacity or disability) where such non-performance has continued for
more than 10 days following written notice of such non-performance; (iii) the Employee’s refusal or
failure to follow lawful directives where such refusal or failure has continued for more than 30
days following written notice of such refusal or failure; (iv) a criminal or civil conviction of
the Employee, a plea of nolo contendere by the Employee, or other conduct by the Employee that, as
determined in the sole reasonable discretion of the Board, has resulted in, or would result in if
he were retained in his position with the Company, material injury to the reputation of the
Company, including, without limitation, conviction of fraud, theft, embezzlement, or a crime
involving moral turpitude; (v) a material breach by the Employee of any of the provisions of this
Agreement; or (vi) a material violation by the Employee of the Company’s employment policies.
(D) Termination By Employee For Good Cause. Employee may terminate this Agreement at any time
for “Good Cause,” which is defined as one of the following: (i) a repeated willful failure of
Company to comply with a material term of this Agreement after written notice by Employee
specifying the alleged failure; or (ii) a substantial and unusual change in Employee’s position,
material duties, responsibilities, or authority without an offer of additional reasonable
compensation as determined by Company in light of compensation levels for similarly situated
employees; or (iii) a substantial and unusual reduction in Employee’s material duties,
responsibilities or authority. If Employee elects to terminate this Agreement for “Good Cause” as
described above in this paragraph, Employee must provide Company written notice within thirty
(30) days of the occurrence of “Good Cause,” after which Company shall have thirty (30) days within
which to cure. If in spite of Company’s efforts to cure, Employee still elects to terminate this
Agreement, he must do so within ten (10) days after the end of the cure period.
(E) KEY MAN. (This provision has been approved by the Compensation Committee of the Board of
Directors.) In the event that during the Term of this Agreement the circumstance arises that the
Employee does not report directly to Xxxxx Xxxx, Xxxx Xxxx, or Xxxxxxx Xxxx, Employee may terminate
this Agreement, in writing, but in no event later than 90 days after such circumstance occurs.
Compensation as a result of a Termination under this provision shall be treated the same as if the
Employee had terminated for Good Cause (See Section 8(e), below).
8. COMPENSATION UPON TERMINATION.
(A) DEATH. If the Employee’s employment with the Company terminates by reason of his death,
the Company will, within 45 days of said termination, pay in a lump sum amount to such person as
the Employee shall designate in a notice filed with the Company or, if no such person is
designated, to the Employee’s estate, the Employee’s accrued and unpaid base
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salary and prorated bonus, if any (See Exhibit A), and any payments to which the Employee’s spouse,
beneficiaries, or estate may be entitled under any applicable employee benefit plan (according to
the terms of such plans and policies).
(B) DISABILITY. If the Employee’s employment with the Company terminates by reason of his
disability, the Company shall, within 45 days of said termination, pay in a lump sum amount to the
Employee his accrued and unpaid base salary and prorated bonus, if any (See Exhibit A), and any
payments to which he may be entitled under any applicable employee benefit plan (according to the
terms of such plans and policies).
(C) TERMINATION BY THE COMPANY FOR CAUSE. If the Employee’s employment with the Company is
terminated by the Company for Cause the Company will, within 45 days of said termination, pay in a
lump sum amount to the Employee his accrued and unpaid base salary and any payments to which he may
be entitled under any applicable employee benefit plan (according to the terms of such plans and
policies).
(D) NON-RENEWAL BY COMPANY; TERMINATION BY THE COMPANY WITHOUT CAUSE. If the Employee’s
employment with the Company is terminated by the Company without Cause, or if Company terminates
employment following its notice of non-renewal, the Employment Period shall end on a date to be
determined by Company and the Company will, within 45 days of said termination, pay in a lump sum
amount to the Employee his accrued and unpaid base salary and any payments to which he may be
entitled under any applicable employee benefit plan (according to the terms of such plans and
policies). In addition, if Employee signs a severance agreement and general release of claims in a
form and manner satisfactory to Company, Company will pay to Employee, in periodic payments twice
per month over a period of three years in accordance with ordinary payroll practices and
deductions, an amount equal to three times the average of Employee’s annualized base salary for the
current and prior full year of employment.
(E) TERMINATION BY EMPLOYEE FOR GOOD CAUSE. If the Employee terminates for Good Cause under
Section 7, employment shall end on a date to be determined mutually by Company and Employee, and
the Company will, within 45 days of said termination, pay in a lump sum amount to the Employee his
accrued and unpaid base salary and any payments to which he may be entitled under any applicable
employee benefit plan (according to the terms of such plans and policies). In addition, if Employee
signs a severance agreement and general release of claims in a form and manner satisfactory to
Company, Company will pay to Employee, in periodic payments twice per month over a period of three
years, in accordance with ordinary payroll practices and deductions, an amount equal to three times
the average of Employee’s annualized base salary for the current and prior full year of employment.
(F) NON-RENEWAL BY EMPLOYEE. If Employee gives notice of non-renewal under Section 1,
employment shall end on a date to be determined by Company and the Company will, within 45 days,
pay in a lump sum amount to the Employee his accrued and unpaid base salary and any payments to
which he may be entitled under any applicable employee benefit plan (according to the terms of such
plans and policies). In addition, if Employee signs a severance agreement and general release of
claims in a form and manner
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satisfactory to Company, Company will, within 45 days, pay to Employee, an amount equal to
Employee’s then current base salary for one year, payable in periodic payments twice per month over
a period of one year during the Employee’s one year noncompete, in accordance with ordinary payroll
practices and deductions.
(G) PRO-RATA BONUS. If Company terminates Employee without Cause or due to non-renewal notice
by Company, or if Employee terminates for Good Cause, Employee shall be paid a pro-rata Performance
Bonus no later than March 15 of the calendar year following that in which the Performance Bonus
would otherwise have been earned during the term, It is expressly understood and agreed that the
pro-rata Performance Bonus will be paid only if such bonus would have otherwise been earned if
employment had not been terminated.
(H) EFFECT OF COMPLIANCE WITH COMPENSATION UPON TERMINATION PROVISIONS. Upon complying with
Subparagraphs 8(a) through 8(e) above, as applicable, the Company will have no further obligations
to the Employee except as otherwise expressly provided under this Agreement, provided that such
compliance will not adversely affect or alter the Employee’s rights under any employee benefit plan
of the Company in which the Employee has a vested interest, unless, otherwise provided in such
employee benefit plan or any agreement or other instrument attendant thereto.
9. PARTIES BENEFITED; ASSIGNMENTS. This Agreement shall be binding upon the Employee, his heirs and
his personal representative or representatives, and upon the Company and its respective successors
and assigns. Neither this Agreement nor any rights or obligations hereunder may be assigned by the
Employee, other than by will or by the laws of descent and distribution.
10. NOTICES. Any notice provided for in this Agreement will be in writing and will be deemed to
have been given when delivered or mailed by United States registered or certified mail, return
receipt requested, postage prepaid. If to the Board or the Company, the notice will be sent to Xxxx
X. Xxxx, 000 X. Xxxxx Xxxx, Xxx Xxxxxxx, XX 00000 and a copy of the notice will be sent to Chief
Legal Officer, 000 X. Xxxxx Xxxx, Xxx Xxxxxxx, XX 00000. If to the Employee, the notice will be
sent to 00000 Xxxxxxxx, Xxxx Xxxx Xxxxx, XX 00000 and a copy of the notice will be sent to Xxxxxxx
Xxxxx. Such notices may alternatively be sent to such other address as any party may have furnished
to the other in writing in accordance with this Agreement, except that notices of change of address
shall be effective only upon receipt.
11. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Texas without giving effect to any choice of law or conflict
provisions or rule (whether of the State of Texas or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Texas and the Employee hereby
expressly consents to the personal jurisdiction of the state and federal courts located in the
State of Texas for any lawsuit arising from or relating to this Agreement.
12. DEFINITION OF COMPANY. As used in this Agreement, the term “Company” shall include any of its
present and future divisions, operating companies, subsidiaries and affiliates.
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13. LITIGATION AND REGULATORY COOPERATION. During and after the Employee’s employment, the Employee
shall reasonably cooperate with the Company in the defense or prosecution of any claims or actions
now in existence or which may be brought in the future against or on behalf of the Company which
relate to events or occurrences that transpired while the Employee was employed by the Company;
provided, however, that such cooperation shall not materially and adversely affect the Employee or
expose the Employee to an increased probability of civil or criminal litigation. The Employee’s
cooperation in connection with such claims or actions shall include, but not be limited to, being
available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf
of the Company at mutually convenient times. During and after the Employee’s employment, the
Employee also shall cooperate fully with the Company in connection with any investigation or review
of any federal, state or local regulatory authority as any such investigation or review relates to
events or occurrences that transpired while the Employee was employed by the Company. The Company
will pay the Employee on an hourly basis (to be derived from his base salary) for requested
litigation and regulatory cooperation that occurs after his termination of employment, and
reimburse the Employee for all costs and expenses incurred in connection with his performance under
this paragraph, including, but not limited to, reasonable attorneys’ fees and costs.
14. INDEMNIFICATION AND INSURANCE; LEGAL EXPENSES. The Company shall indemnify the Employee to the
fullest extent permitted by law, in effect at the time of the subject act or omission, and shall
advance to the Employee reasonable attorneys’ fees and expenses as such fees and expenses are
incurred (subject to an undertaking from the Employee to repay such advances if it shall be finally
determined by a judicial decision which is not subject to further appeal that the Employee was not
entitled to the reimbursement of such fees and expenses), and the Employee will be entitled to the
protection of any insurance policies that the Company may elect to maintain generally for the
benefit of its directors and officers against all costs, charges and expenses incurred or sustained
by him in connection with any action, suit or proceeding to which he may be made a party by reason
of his being or having been a director, officer or employee of the Company or any of its
subsidiaries, or his serving or having served any other enterprise as a director, officer or
employee at the request of the Company (other than any dispute, claim or controversy arising under
or relating to this Agreement). The Company covenants to maintain during the Employee’s employment
for the benefit of the Employee (in his capacity as an officer and director of the Company)
Directors and Officers Insurance providing benefits to the Employee no less favorable, taken as a
whole, than the benefits provided to the other similarly situated employees of the Company by the
Directors and Officers Insurance maintained by the Company on the date hereof; provided, however,
that the Board may elect to terminate Directors and Officers Insurance for all officers and
directors, including the Employee, if the Board determines in good faith that such insurance is not
available or is available only at unreasonable expense.
15. ARBITRATION. The parties agree that any dispute, controversy or claim, whether based on
contract, tort, statute, discrimination, retaliation, or otherwise, relating to, arising from or
connected in any manner to this Agreement, or to the alleged breach of this Agreement, or arising
out of or relating to Employee’s employment or termination of employment, shall, upon timely
written request of either party be submitted to and resolved by binding arbitration. The
arbitration shall be conducted in San Antonio, Texas. The arbitration shall proceed in accordance
with the National Rules for Resolution of Employment Disputes of the American Arbitration
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Association (“AAA”) in effect at the time the claim or dispute arose, unless other rules are agreed
upon by the parties. Unless otherwise agreed to by the parties in writing, the arbitration shall be
conducted by one arbitrator who is a member of the AAA and who is selected pursuant to the methods
set out in the National Rules for Resolution of Employment Disputes of the AAA. Any claims received
after the applicable/relevant statute of limitations period has passed shall be deemed null and
void. The award of the arbitrator shall be a reasoned award with findings of fact and conclusions
of law. Either party may bring an action in any court of competent jurisdiction to compel
arbitration under this Agreement, to enforce an arbitration award, and to vacate an arbitration
award. However, in actions seeking to vacate an award, the standard of review to be applied by said
court to the arbitrator’s findings of fact and conclusions of law will be the same as that applied
by an appellate court reviewing a decision of a trial court sitting without a jury. The Company
will pay the actual costs of arbitration excluding attorney’s fees. Each party will pay its own
attorneys fees and other costs incurred by their respective attorneys. A breach or threat of breach
of this Agreement by either party to this Agreement shall give the non-breaching party the right to
seek a temporary restraining order and a preliminary or permanent injunction in the appropriate
court to enjoin the breaching party from violating this Agreement in order to prevent immediate and
irreparable harm to the non-breaching party.
16. REPRESENTATIONS AND WARRANTIES OF THE EMPLOYEE. The Employee represents and warrants to the
Company that he is under no contractual or other restriction which is inconsistent with the
execution of this Agreement, the performance of his duties hereunder or the other rights of Company
hereunder. The Employee also represents and warrants to the Company that he is under no physical or
mental disability that would hinder the performance of his duties under this Agreement.
17. SECTION 409A COMPLIANCE. Payments under this Agreement (the “Payments”) shall be designed and
operated in such a manner that they are either exempt from the application of, or comply with, the
requirements of Section 409A, the Regulations, applicable case law and administrative guidance. All
Payments shall be, under all circumstances, deemed to come from an unfunded plan. Further,
notwithstanding any provision in this Agreement to the contrary, all Payments subject to
Section 409A will not be accelerated in time or schedule. Employee and Company will not be able to
change the designated time or form of any Payments subject to Section 409A. In addition, all
Severance Payments that are deferred compensation and subject to Section 409A will only be payable
upon a “separation from service” (as that term is defined at Section 1.409A-1(h) of the Treasury
Regulations) from the Company and from all other corporations and trades or businesses, if any,
that would be treated as a single “service recipient” with the Company under Section 1.409A-1(h)(3)
of the Treasury Regulations. All references in this Agreement to a termination of employment and
correlative terms shall be construed to require a “separation from service.”
18. MISCELLANEOUS. This Agreement contains the entire agreement of the parties relating to the
subject matter hereof. This Agreement supersedes any prior written or oral agreements or
understandings between the parties relating to the subject matter hereof. No modification or
amendment of this Agreement shall be valid unless in writing and signed by or on behalf of the
parties hereto. The failure of a party to require performance of any provision of this Agreement
shall in no manner affect the right of such party at a later time to enforce any provision of this
Agreement. A waiver of the breach of any term or condition of this Agreement
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shall not be deemed to constitute a waiver of any subsequent breach of the same or any other term
or condition. This Agreement is intended to be performed in accordance with, and only to the extent
permitted by, all applicable laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance, shall, for any reason and to
any extent, be held invalid or unenforceable, such invalidity and unenforceability shall not affect
the remaining provisions hereof or the application of such provisions to other persons or
circumstances, all of which shall be enforced to the greatest extent permitted by law. The headings
in this Agreement are inserted for convenience of reference only and shall not be a part of or
control or affect the meaning of any provision hereof.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as of the date
first written above, with the express understanding that this Agreement is subject to (i) closing
of the amended merger agreement dated May 13, 2008, and (ii) formal approval by the Board of
Directors of CCU and CC Media Holdings, Inc.
| DATE: 6-30-08 | XXXX XXXXX |
|||
| /s/ Xxxx Xxxxx | ||||
| DATE: 6-30-08 | CLEAR CHANNEL BROADCASTING, INC. |
|||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | XXXX X. XXXX | |||
| Title: | Director, Clear Channel Broadcasting, Inc. and Chief Executive Officer, Clear Channel Communications, Inc. |
|||
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EXHIBIT
A – PERFORMANCE BONUS CALCULATION XXXX XXXXX
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Exhibit A — Performance Bonus
The Employee’s performance objectives will be established by the Board or its Compensation
Committee no later than the earlier of the date that is ninety (90) days after the commencement of
the performance period or the day prior to the date on which twenty-five percent (25%) of the
performance period has elapsed. The performance period will be the calendar year or such other
shorter or longer period designated by the Committee during which performance will be measured in
order to determine the Employee’s entitlement to receive payment of a Performance Bonus.
When setting the Employee’s performance objectives, the Committee shall specify the level or levels
of performance required to be attained with respect to each objective in order that the Employee
shall become entitled to receive payment of a Performance Bonus. The aggregate Target level of
compensation which may be earned when all of the Employee’s performance objectives are achieved
shall be not less than $1,000,000 when the performance period is a calendar year. The minimum
aggregate Target level of compensation shall vary on a pro rata basis for performance periods
shorter or longer than a calendar year.
Performance objectives may be expressed in terms of any of the following business criteria: revenue
growth, earnings before interest, taxes, depreciation and amortization (“EBITDA”), EBITDA growth,
operating income before depreciation and amortization and non-cash compensation expense
(“OIBDAN”), OIBDAN growth, funds from operations, funds from operations per share and per share
growth, cash available for distribution, cash available for distribution per share and per share
growth, operating income and operating income growth, net earnings, earnings per share and per
share growth, return on equity, return on assets, share price performance on an absolute basis and
relative to an index, improvements in attainment of expense levels, improvements in ratings,
implementing or completion of critical projects, or improvement in cash-flow (before or after tax).
These objectives may be measured over a periodic, annual, cumulative or average basis and may be
established on a corporate-wide basis or established with respect to one or more operating units,
divisions, subsidiaries, acquired businesses, minority investments, partnerships or joint ventures.
