TERMINATION AGREEMENT
This TERMINATION AGREEMENT (this "Agreement"), dated as of July
23, 1998, is made and entered into by and among Capstar Radio Broadcasting
Partners, Inc., a Delaware corporation ("Parent"), Triathlon Broadcasting
Company, a Delaware corporation (the "Company"), and Xxxxxx Xxxxx
("Executive").
RECITALS
WHEREAS, concurrently herewith, Parent, TBC Radio Acquisition Corp., a
Delaware corporation ("Sub"), and the Company are entering into an Agreement
and Plan of Merger (as such agreement may hereafter be amended from time to
time, the "Merger Agreement"; capitalized terms used and not otherwise defined
herein have the respective meanings ascribed to them in the Merger Agreement),
pursuant to which Sub will be merged with and into the Company (the "Merger");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that Executive agree, and Executive has agreed,
to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, Covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
AGREEMENTS
1. EMPLOYMENT AGREEMENT. Executive hereby represents and warrants that
his employment relationship with the Company is pursuant to and governed by the
Employment Agreement dated as of August 8, 1995 between Executive and the
Company (the "Employment Agreement"), other than the making of advances on
bonuses by the Company to the Executive as set forth on Schedule A attached
hereto. A true and correct copy of the Employment Agreement is attached hereto
as Exhibit A.
2. TERMINATION OF EMPLOYMENT AGREEMENT. Effective as of the Effective
Time (a) Executive hereby tenders his resignation as an officer and director of
the Company and each of its subsidiaries, and (b) the Employment Agreement
other than Section 12 thereto, shall be terminated in full without any further
action on the part of the Company or Executive and, except as otherwise
specifically provided herein, shall be of no further force or effect. Except as
expressly provided for in this Agreement, from and after the date of
termination of the Employment Agreement as contemplated by this Agreement,
Executive shall not be entitled to receive any further wages, compensation,
bonuses or benefits arising pursuant to the Employment Agreement or his
employment relationship with the Company or any of its subsidiaries and
Executive shall not be entitled to any post-termination wages, compensation or
benefits (including, without limitation, severance pay, vacation pay or sick
pay), except as expressly provided in Section 3(a) hereof.
3. RELEASE OF CLAIMS
(a) CURRENT RELEASE BY EXECUTIVE. Effective as of the Effective Time
or, if any consideration required to be paid to Executive pursuant to Section 5
hereto is not paid to Executive prior to or contemporaneously with the Effective
Time, as of the payment of such consideration to Executive (such date herein
referred to as the "Release Date"), Executive hereby releases and discharges the
Released Parties from all Claims and Damages based on any acts, omissions or
other matters occurring on or before the date Executive signs this Agreement,
including those related to, arising from, or attributed to (i) his employment
with, and membership on the Boards of Directors for, the Company and its
subsidiaries and resignations therefrom, and (ii) the Employment Agreement and
the termination of Executive's employment pursuant to the terms of this
Agreement; except that this release shall not include Executive's (A)
entitlement to continued group medical coverage in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), (B) vested
account balances in the Company employee benefit plans, (C) rights of Executive
arising under the Transaction Documents, (D) accrued and unpaid salary,
severance (if Executive's employment is terminated prior to the Effective Time
under Sections 14.3, 15 or 16 of the Employment Agreement) and expenses
incurred by Executive in respect of the period prior to the Effective Time or
(E) cash compensation payable to Executive and forgiveness of the Company's
loans to the Executive as provided in Section 5 hereof. Executive understands
and expressly agrees that, unless specifically excluded from this release, this
release extends to all Claims and Damages of every nature and kind, known or
unknown, suspected or unsuspected, past or present, whether or not these Claims
and Damages were set forth in any writing, and that all such Claims and Damages
are hereby expressly settled or waived. Notwithstanding the foregoing,
Executive does not release or discharge the Company and its subsidiaries from
(i) any Claims or Damages related to or arising from Executive's capacity as an
officer or director of the Company or its subsidiaries to which Executive is
entitled to be indemnified against or reimbursed by the Company or its
subsidiaries, whether by statute, contract or otherwise or (ii) if Executive's
employment with the Company is terminated by the Company between the date of
this Agreement and the Effective Time (any such date, the "Early Termination
Date") and as of the Effective Time the consideration provided for in Section 5
has not been paid to Executive notwithstanding such termination, any Claims
Executive may have against the Company related to such termination of
Executive's employment.
(b) RELEASE DATE RELEASE BY EXECUTIVE. As of the Release Date, and as
a condition to the Company's obligation to deliver any consideration required to
be paid to Executive pursuant to Section 5 hereto, Executive will execute and
deliver to the Company a release substantially identical in substance to this
Section 3, execept that such release shall relate to acts, omissions or other
matters occurring on or before the Release Date, including without limitation,
all acts or omissions related to any matter at any time prior to and including
the date of termination of the Employment Agreement.
(c) DEFINITIONS. As used in this Section 3, the following terms shall
have meanings set forth below:
(i) "Claims" means all theories of recovery of whatever nature,
whether known or unknown, at law or equity of any jurisdiction. This
term includes, without limitation, lawsuits, petitions, complaints,
causes of action, charges, indebtedness, losses,
claims, liabilities, and demands, whether arising in equity or under
the common law or under any contract (including, without limitation, the
Employment Agreement), statute, regulation or ordinance. This term also
includes, without limitation, any Claim of discrimination (based on age or any
other factor) under any statute or law (including, without limitation, the Age
Discrimination in Employment Act, 29 U.S.C. ss. 621, et seq.;
Title VII of the Civil Rights Act of 1964,42 U.S.C. ss. 2000e, et
seq.; and the Americans with Disabilities Act, 42 U.S.C. ss. 12101,
et seq.), and all Claims asserted by Executive, in writing or otherwise, or
which could be asserted, by Executive.
(ii) "Damages" means all elements of relief or recovery of whatever
nature, whether known or unknown, which are recognized by the law or equity of
any jurisdiction. This term includes, without limitation, actual, incidental,
indirect, consequential, compensatory, liquidated, exemplary and punitive
damages, rescission, attorneys' fees, interest, costs, equitable relief and
expenses.
(iii) "Released Parties" means and includes the Company and its
subsidiaries, and all of the foregoing entities' past and present stockholders,
directors, officers, employees, agents, insurance carriers, employee benefit
plans (and such plans' fiduciaries, trustees, administrators and
representatives), predecessors, successors, assigns, executors, administrators,
attorneys and representatives, in both their corporate and individual
capacities.
4. CONFIDENTIALITY
(a) PROTECTION OF CONFIDENTIAL INFORMATION AND TRADE SECRETS.
Executive acknowledges that the business of the Company and its subsidiaries is
highly competitive and that their contracts, books, records, and documents,
their technical information concerning their services, pricing techniques, and
computer system and software, and the names of and other information (such as
credit and financial data) concerning their customers and business affiliates,
all comprise confidential business information and trade secrets which are
valuable, special, and unique assets which the Company and its subsidiaries use
in their business to obtain a competitive advantage over their competitors. All
such information belonging to the Company and its subsidiaries is jointly
referred to herein as "Confidential Information and Trade Secrets"; provided,
however, that Confidential Information and Trade Secrets shall not include
information that is or becomes generally available in the public domain other
than as a result of disclosure by Executive in violation of this Agreement, is
generally known to the industry as a whole or is not specific to the operations
and business of the Company and its subsidiaries. Effective as of the Effective
Time, Executive agrees that all Confidential Information and Trade Secrets are
the exclusive, confidential and proprietary information and property of the
Company and will not be used by Executive for any other purpose or in any other
manner. Executive further acknowledges that protection of such Confidential
Information and Trade Secrets against unauthorized disclosure and use is of
critical importance to the Company and its subsidiaries in maintaining their
competitive position. Executive hereby agrees that he will not make any
unauthorized disclosure of any such Confidential Information and Trade Secrets,
or make any unauthorized use thereof prior to the fifth anniversary of the date
of the Effective Time. In the event that Executive is requested pursuant to, or
required by, applicable law or regulation or by legal process to disclose any
Confidential Information and
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Trade Secrets, Executive agrees to provide the Company with prompt
notice of such request(s) to enable the Company to seek an appropriate
protective order; provided, however, that Executive shall not be prohibited
from complying with any such request unless an appropriate protective order is
in place.
(b) SCOPE OF PROHIBITED ACTIVITIES; REMEDIES. Executive acknowledges
that the scope of prohibited activities are reasonable and are no broader than
are necessary to protect the goodwill and legitimate business interests of the
Company and its subsidiaries. Executive also acknowledges that the provisions
of this Section 4 do not and will not impose any unreasonable burden on
Executive. Executive further acknowledges that a violation of this Section 4
will cause irreparable damage to the Company and its subsidiaries, entitling
them to an injunction and other equitable relief, without the necessity of
posting bond or proving actual damages, in a court of competent jurisdiction
against Executive. In addition, the Company and its subsidiaries shall be
entitled to whatever other remedies they may have at law, including, without
limitation, reasonable attorneys fees and costs incurred by the Company and its
subsidiaries in enforcing the terms of this Section 4.
5. CONSIDERATION. Contemporaneously with the Effective Time, and
conditioned upon Executive having fulfilled his duties and obligations under
the Employment Agreement (including without limitation Section 4 thereof) up to
and until the Effective Time, the Company shall pay Executive consideration
consisting of (a) cash, by wire transfer of immediately available funds, in the
amount of Eight Hundred Fifty Thousand and No/100 Dollars ($850,000) (the
"Closing Payment"), together with (i) the amount of any accrued but unpaid
salary and expenses to the date thereof, (ii) a cash payment of
Twenty-Five Thousand and No/100 Dollars ($25,000) (the "Quarterly Payment") per
calendar quarter, payable in advance on the first day of each quarter from the
date of this Agreement to the first to occur of the Effective Time or the Early
Termination Date; provided, that the Quarterly Payment made on the first day of
the calendar quarter in which the Effective Time occurs shall be prorated for
such quarter as of the date of the Effective Time and the difference between
the Quarterly Payment and such prorated Quarterly Payment shall be deducted
from the Closing Payment, but excluding (iii) any other bonuses to which
Employee may be entitled under the Employment Agreement or otherwise except to
the extent payment thereof has been declared by the Board of Directors of the
Company but not made prior to the Effective Time and is permitted by Item 5 of
Section 4.01 (a)(xvii) of the Company Disclosure Schedule to the Merger
Agreement, and (b) forgiveness of the loans listed on Schedule A hereto
aggregating Four Hundred-Fifty Thousand and No/100 Dollars ($450,000). The
parties agree and acknowledge that the consideration provided under this
Section 5 is inclusive of any and all consideration that may become due and
payable to Executive upon his exercise of any options or any other rights that
Executive may have to purchase shares of capital stock of the Company (except
for amounts payable pursuant to Section 2.03 of the Merger Agreement), the
receipt of which consideration Executive hereby waives and relinquishes. If
Executive's employment is terminated by the Company prior to the Effective
Time, Executive shall, in lieu of the payments stated herein, receive such
compensation as would be required under the applicable terms of Section 14 of
the Employment Agreement.
6. RIGHT TO MATCH. In the event that the Company gives notice under
Section 7.01 (c) of the Merger Agreement of its election to terminate the
Merger Agreement, then, as requested by Parent, the Company and Executive
shall, in connection with any amendment to the Merger Agreement or other
proposal made by Parent in response to such notice and that is accepted by the
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Company, amend or terminate this Agreement or enter into such other
agreements or arrangements substantially similar to those as proposed to be
entered into with Executive in connection with the Superior Proposal described
in such notice; provided that such right or obligation shall only be liable to
a Second Transaction that the Stockholder would be obligated to vote for
pursuant to that certain Stockholder Agreement by and between Stockholder, the
Company, Parent and Sub.
7. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all other prior agreements and understandings, both written and oral, between
the parties with respect to the subject matter hereof.
(b) CERTAIN EVENTS. Executive agrees that this Agreement and the
obligations hereunder shall be binding upon his heirs, guardians,
administrators or successors.
(c) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(d) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing, and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered to
the respective parties at the following addresses:
If to Executive: Xxxxxx Xxxxx
000 Xx Xxxxx Xxxxxx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
copies to: Xxxxxxx & Xxxxxx
Three First Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxx Xxxxxxxxx
If to the Company: Triathlon Broadcasting Company
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx
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copies to: Xxxxx & XxXxxxxx
Two Xxxxx Center, Suite 1200
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxxxxxx
If to Parent or Sub: Capstar Broadcasting Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Xx.
copies to: Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(e) SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein. Furthermore, in lieu of each such invalid, illegal or
unenforceable provision, there shall be added automatically as part of this
Agreement, a provision similar in terms to such invalid, illegal or
unenforceable provision as may be possible and valid, legal and enforceable
and, subject to the following sentence, the parties hereby request the court to
whom the disputes relating to this Agreement are submitted to reform any
otherwise unenforceable covenants contained in Section 4 hereof in accordance
with the preceding provision.
(f) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief, without the necessity of
posting bond or proving actual damages, in addition to any other remedy to
which it may be entitled, at law or in equity. For the purposes of this Section
6(f) and Section 4 hereof, Parent, Sub and each subsidiary of the corporation
surviving the Merger shall be deemed a third party beneficiary entitled to the
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benefits of such Sections and shall be entitled to enforce Section 4 of this
Agreement in accordance with this Section 6(f).
(g) REMEDIES CUMULATIVE. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
(h) NO WAIVER. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy or
to demand such compliance.
(i) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(j) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(k) JURISDICTION. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware in any
action, suit or proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding shall be brought only in such
court (and waives any objection based on forum non conveniens or any other
objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this paragraph (k) and
shall not be deemed to be a general submission to the jurisdiction of said
Court or in the State of Delaware other than for such purposes. Each party
hereto hereby waives any right to a trial by jury in connection with any such
action, suit or proceeding.
(1) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
(m) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same Agreement.
(n) WITHHOLDINGS. As may be appropriate, the Company shall report the
payments made hereunder by (i) filing the appropriate W-2 forms and/or 1099
forms for this amount, and (ii) making any other reports required by law.
(o) TAXES. Executive agrees to comply, on a timely basis, with all tax
reporting requirements applicable to the receipt of the payments and other
compensation received hereunder and to timely pay all taxes due with respect to
such amounts.
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(p) ATTORNEY FEES. The prevailing party in any dispute or controversy
under or in connection with this Agreement shall be entitled to reimbursement
from the non-prevailing party costs and reasonable legal fees incurred by such
prevailing party.
(q) TIMING. Executive acknowledges that (a) he has 21 days to consider
this Termination Agreement before executing it, although he may execute this
Agreement before the 21 days expires, (b) he may revoke this Agreement within 7
days after he executes it, (c) this Agreement will not become effective or
enforceable until the expiration of this 7-day period, (d) the Company may
require, as a prerequisite for payment or providing of any consideration to
Executive pursuant to this Agreement, Executive to acknowledge in a signed and
dated writing that he did not revoke this Agreement during the 7-day period,
and (e) Executive's acceptance of the cash consideration payable to Executive
pursuant to Section 5 of this Agreement shall constitute his acknowledgment
that he did not revoke this Agreement during this 7-day period.
(r) LEGAL COUNSEL. Executive is advised to seek legal counsel to
review this Agreement prior to execution of this Agreement, and Executive
acknowledges that he has had adequate opportunity to seek legal counsel to
review this Agreement to the extent deemed necessary by Executive.
8. TERMINATION. This Agreement shall terminate upon the termination of
the Merger Agreement without any further action on the part of any party
hereto.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
/s/ Xxxxxx Xxxxx
--------------------------------
Xxxxxx Xxxxx
TRIATHLON BROADCASTING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
_____________________________
Name: Xxxxxxx X. Xxxxxxxx
___________________________
Title: Chief Financial Officer
__________________________
CAPSTAR RADIO BROADCASTING PARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-----------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Vice President
