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EXHIBIT 10.5
THIRD AMENDMENT
TO
EMPLOYMENT AGREEMENT
THIS THIRD AMENDMENT (this "Third Amendment") to the Employment
Agreement, dated as of February 14, 1997, between Capstar Broadcasting Partners,
Inc., a Delaware corporation, and R. Xxxxxx Xxxxx (the "Executive"), as amended
on July 1, 1997 and as assigned to and assumed by Capstar Employee Management
Company, Inc. (predecessor to Capstar Operating Corporation, the "Company"), a
Delaware corporation and subsidiary of Capstar Broadcasting Corporation
("Capstar Broadcasting"), on January 1, 1998, and further amended on August 26,
1998 (the "Employment Agreement"), is entered into effective as of April 29,
1999, by and between the Company and the Executive, and is joined in by Capstar
Broadcasting.
RECITALS:
WHEREAS, in contemplation of the consummation of the merger (the
"Merger") of CMC Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of Chancellor Media Corporation ("Chancellor"), with and into Capstar
Broadcasting, the parties hereto desire to amend the terms and provisions of the
Employment Agreement as hereinafter set forth;
WHEREAS, the Merger shall become effective upon the filing of a
certificate of merger in connection with the Merger with the Secretary of State
of the State of Delaware, or at such later time specified in such certificate of
merger (the "Effective Time"); and
WHEREAS, any capitalized term used herein, and not otherwise defined
herein, shall have the meaning set forth in the Employment Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and the agreements
herein contained, the parties hereto covenant and agree as follows:
1. The Second Amendment to Employment Agreement, dated as of August 26,
1998, between the Company and the Executive and joined by Capstar Broadcasting,
is hereby terminated and shall be of no further force or effect.
2. It shall not be a violation of Section 2(a)(ii) of the Employment
Agreement for the Executive to enter into an employment agreement (the
"Chancellor Employment Agreement") with Chancellor and to devote a portion of
his business time to the performance of his duties and obligations under the
Chancellor Employment Agreement. The Executive shall make a good faith
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effort to allocate his time reasonably among his responsibilities at Capstar and
Chancellor. The Executive acknowledges and understands and agrees that,
notwithstanding anything in the Employment Agreement to the contrary and until
the Employment Agreement expires by its terms, the Company and Chancellor shall
share their respective obligations to compensate the Executive for his services
performed for the Company and Chancellor and to provide the Executive with
benefits under the Welfare Plans of the Company and Chancellor in accordance
with the terms of the Chancellor Employment Agreement.
3. Section 4(a)(iii) of the Employment Agreement shall be amended and
restated in its entirety to read as follows:
(iii) Notwithstanding the terms or conditions of any
Executive Option or other similar stock option, stock appreciation
right or similar agreements between the Company and the Executive, if
on or before the Effective Time the Executive's employment has not been
terminated by the Company for Cause or by the Executive for other than
Good Reason, then the Executive shall vest as of the Effective Time in
all rights under such agreements (i.e., Executive Options that would
otherwise vest after the Effective Time) and thereafter shall be
permitted to exercise any and all such rights until the expiration of
such Executive Option, stock option, stock appreciation right or
similar agreement pursuant to its terms without regard to any
termination of employment provisions contained therein.
4. If on or before the Effective Time the Executive's employment has
not been terminated by the Company for Cause or by the Executive for other than
Good Reason, then the Company shall pay to the Executive a bonus equal to
$1,500,000, payable in cash by the close of business on the date of the
Effective Time.
5. Except as herein specifically amended or supplemented, the
Employment Agreement shall continue in full force and effect in accordance with
its terms; provided, however, that the Employment Agreement, including Section
11(k) thereof, shall terminate immediately after the Effective Time, and, except
as provided in Section 6 of this Third Amendment, shall thereafter be of no
further force or effect.
6. Sections 2, 3 and 4 of this Third Amendment shall survive the
termination of the Employment Agreement.
7. This Third Amendment may be executed and delivered (including by
facsimile transmission) in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Third
Amendment effective as of the date first written above.
COMPANY:
CAPSTAR OPERATING CORPORATION
By:
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Name:
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Title:
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EXECUTIVE:
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R. Xxxxxx Xxxxx
CAPSTAR BROADCASTING:
CAPSTAR BROADCASTING CORPORATION
By:
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Name:
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Title:
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