FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment (this "Amendment") to that certain Employment
Agreement dated as of February 20, 1996, by and between Noble Broadcast Group,
Inc., a Delaware corporation ("Noble") and Xxxxx X. De Francesco ("De
Francesco"), (the "Agreement"), is entered into as of December 20, 1996 by and
between Jacor Communications, Inc., a Delaware corporation (the "Company") and
De Francesco. Unless specifically designated otherwise, the capitalized terms
used herein shall have the same meanings ascribed to them in the Agreement.
RECITALS
A. On the Closing Date of the Stock Agreement, Noble assigned and the
Company assumed all of Noble's rights and obligations under the Agreement.
B. The Company's needs for the services to be provided by De Francesco
under the Agreement have changed since the execution thereof.
C. The Company and De Francesco desire to amend the Agreement in order to
modify the rights and obligations of each of them thereunder, as provided
therein and herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises,
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. TERMINATION. On the date of execution of this Amendment (the
"Termination Date"), the Agreement is hereby automatically terminated and the
parties are hereby relieved of all duties, obligations and restrictions
thereunder except as otherwise specifically provided in this Amendment or as
specifically provided in any other written agreement between the parties,
including without limitation the Stock Agreement, and, as defined in the Stock
Agreement, the Indemnification Agreement and the Escrow Agreement.
2. REMUNERATION. From the Termination Date through and including
December 31, 1996, the Company shall pay to De Francesco (or his estate or
designated beneficiary in the event of his death), without any discount or
offset other than applicable withholding amounts, the amounts and provide the
benefits described in Section 3 of the Agreement. On January 2, 1997, the
Company shall pay to De Francesco (or to his estate or designated beneficiary in
the event of his death), without any discount or offset other than applicable
withholding amounts, as a lump sum a gross payment (before any applicable
withholding amounts) of $328,250, which constitutes the parties' agreed
calculation of an amount equal to all unpaid amounts accrued under Section 3.1
of the Agreement plus the total amount of all additional payments otherwise
contemplated under Section 3.1 of the Agreement for the entire originally
contemplated term from January 1,
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1997 through and including September 15, 1999. Without limiting the foregoing,
after the Termination Date, the Company shall not be obligated to make any other
payments to De Francesco under the Agreement including without limitation
payments pursuant to Section 9.5.1 thereof.
3. HEALTH INSURANCE. As required by the Internal Revenue Code section
4980B ("COBRA"), De Francesco and his qualified beneficiaries will receive a
COBRA notice regarding the continuation of health insurance benefits following
the signing of this Amendment. If De Francesco and/or his qualified
beneficiaries complete the paperwork to receive COBRA benefits, the Company
agrees to pay the COBRA health insurance benefits premiums for De Francesco and
his qualified beneficiaries for up to twelve (12) months provided De Francesco
and any of his qualified beneficiaries remain eligible for COBRA during such
twelve (12) month period. COBRA eligibility rules will govern, and if De
Francesco and/or his qualified beneficiaries lose eligibility during such twelve
(12) month period, then the Company's obligation under this paragraph for such
person will terminate.
4. RELEASE BY DE FRANCESCO. Except for the obligations set forth herein,
De Francesco hereby forever releases and discharges the Company and its
officers, directors, employees, agents, insurers, attorneys, successors and
assigns, and all related and subsidiary corporations or organizations and their
officers, directors, agents, successors and assigns ("Releasees"), from any and
all losses, liability, claims, demands, causes of action, grievances or suits of
every type directly or indirectly arising out of disputes under the Employment
Agreement and/or De Francesco's employment or separation from employment with
the Company which in any manner relate to events, circumstances or acts
occurring on or before the Termination Date. This includes, but is not limited
to, any claims for unpaid salary or benefits (other than (i) base salary to be
paid for the pay period immediately preceding the Termination Date and (ii)
amounts to be paid for reimbursement of expenses incurred in the pay periods
preceding the Termination Date (not to exceed the sum of $2,500), breach of
express or implied contract, wrongful termination, violations of public policy,
invasion of privacy, breach of the implied covenant of good faith and fair
dealing, defamation, fraud, infliction of emotional distress, or employment
discrimination or retaliatory conduct of any kind arising under federal or state
law or constitutions, including without limitation the California Fair
Employment and Housing Act, Title VII of the Civil Rights Act of 1964, federal
Americans with Disabilities Act of 1990, or the Age Discrimination in Employment
Act of 1967, as amended. De Francesco hereby acknowledges that all amounts
required to be paid on or before the Termination Date, pursuant to Section 3.1
of the Agreement or otherwise pursuant to the employment relationship between De
Francesco and the Company have been paid other than (i) base salary to be paid
for the pay period immediately preceding the Termination Date and (ii) amounts
to be paid for reimbursement of expenses incurred in the pay periods preceding
the Termination Date (not to exceed the sum of $2,500). Nothing herein shall be
construed as a release or discharge by De Francesco from any losses, liability,
claims, demands, causes of action, grievances or suits arising out of any other
agreement, including without limitation the Stock Agreement, the
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Consulting Agreement, and, as defined in the Stock Agreement, the
Indemnification Agreement and the Escrow Agreement.
5. RELEASE BY THE COMPANY. The Company hereby forever releases and
discharges De Francesco from any and all losses, liability, claims, demands,
causes of action, grievances or suits of any type directly arising out of the
failure by De Francesco to take any action or discharge any duty on or after
July 15, 1995 and before the Termination Date relating to the obligations of De
Francesco under the Agreement. Nothing herein shall be construed as a release
or discharge by the Company from any losses, liability, claims, demands, causes
of action, grievances or suits arising out of any other agreement, including
without limitation the Stock Agreement, the Consulting Agreement, and, as
defined in the Stock Agreement, the Indemnification Agreement and the Escrow
Agreement.
6. WAIVER OF RIGHTS UNDER CIVIL CODE SECTION 1542. Each party expressly
waives all of the benefits and rights pursuant to Civil Code Section 1542, which
provides and reads as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him
must have materially affected his settlement with the
debtor.
7. NO PROSECUTION OF ACTION. De Francesco hereby represents and warrants
that he has not filed or caused to be filed against Releasees any complaint with
an administrative agency or any lawsuit. Each party irrevocably and absolutely
agrees not to prosecute nor allow to be prosecuted on his behalf, before any
arbitrator, in any administrative agency, whether local or state, or in any
court, whether federal or state, any claim or demand of any type related to the
matters released in Sections 4 and 5 above; it being an intention of the parties
that with the execution by each party of this Amendment, the other party (and in
the case of Company, Releasees) will be absolutely, unconditionally and forever
discharged of and from all obligations to or on behalf of the other discharged
herein. Each party agrees that this Amendment will constitute a complete
defense to any released claim of any kind brought by it or on its behalf.
8. OFFICE; SECRETARIAL SUPPORT. From the Termination Date until and
including January 1, 1997, the Company shall provide De Francesco with the same
or similar office space and secretarial support that was provided immediately
prior to the Termination Date. On or before January 1, 1997, De Francesco will
vacate the office located at 0000 Xxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx and
will cause all of his personal property to be removed.
9. VOLUNTARY EXECUTION OF AMENDMENT. De Francesco acknowledges and
agrees that he has read and understands the terms of this Amendment; that he has
been given a full opportunity to consult with a lawyer with respect to the
matters referenced in this Amendment, and that De Francesco has obtained and
considered such legal counsel as he deems necessary,
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such that De Francesco is entering into this Amendment, freely, knowingly and
voluntarily; and that he has been given at least twenty-one (21) days in which
to consider whether or not to enter into this Amendment. The release by De
Francesco described in Section 4 herein shall not become effective or
enforceable until seven (7) days after De Francesco signs this Amendment. In
order to revoke this Amendment within the seven (7) day period after its
execution, De Francesco must deliver a written letter of revocation to the
Manager of Human Resources of the Company.
10. RESIGNATION; NOT AN OFFICER. De Francesco hereby resigns from any and
all positions of employment with the Company and any Releasee. De Francesco
further hereby resigns as an officer of the Company, and the parties hereby
acknowledge that as of the Termination Date, De Francesco is not an officer of
the Company or any Releasee. The parties agree to promptly take whatever action
may be necessary under the bylaws of the Company to effectuate or memorialize
this section.
11. SURVIVAL. Notwithstanding the termination of the Agreement on the
Termination Date, the parties agree that all obligations set forth in this
Amendment shall survive such termination.
12. COUNTERPART. This Amendment may be executed in counterparts, each of
which shall be deemed to be an original, and all of which together shall be
deemed to be one and the same instrument when each party has signed one such
counterpart.
13. NO ADMISSIONS. By entering into this Amendment, the parties make no
admission that they, or the Releasees, have engaged in or are now engaging in
any unlawful conduct or employment practice. It is understood and agreed
between the parties that this Amendment is not an admission of liability and
shall not be used or construed as such in any legal or administrative
proceeding.
14. NO FUTURE EMPLOYMENT. De Francesco agrees that he will not seek
future employment with, nor need he be considered for any future openings with,
the Company, or any division thereof, or any parent, subsidiary or related
corporation or entity.
15. ARBITRATION. The parties agree to resolve any disputes which arise
under the Agreement, as amended hereby, including any dispute relating to the
interpretation of the Agreement, by arbitration. The arbitration shall be final
and binding upon the parties. Except as provided by this Amendment, any
arbitration shall be in accordance with the then-current Employment Dispute
Resolution procedures and rules of the American Arbitration Association ("AAA"),
and before a single arbitrator. The arbitration shall take place in San Diego,
California.
a. The parties will select an, arbitrator by requesting a list of
five (5) arbitrators from the AAA. Each party will strike names
alternately from the list and the one remaining name will be the
"Arbitrator." This procedure must be completed within fifteen
(15) days of the mailing of the
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list by AAA.
b. Either party may bring an action in any Ohio or California court
of competent jurisdiction to compel arbitration under the
Agreement, as amended hereby, and to enforce an arbitration
award.
c. De Francesco and the Company will share equally the fees and
costs of the Arbitrator. Each party will deposit funds or post
other appropriate security for its share of the Arbitrator's fee,
in an amount and manner determined by the Arbitrator, ten (10)
days before the first day of hearing.
16. WAIVER OF BREACH AND SEVERABILITY. The waiver by either party to this
Amendment of a breach of any provision of this Amendment by the other party
shall not operate or be construed as a waiver of any subsequent breach of said
other party. In the event any provision of this Amendment is found to be
invalid or unenforceable, it may be severed from this Amendment and the
remaining provisions of this Amendment shall continue to be binding and
effective.
17. ENTIRE AGREEMENT; CONFLICT. The Agreement, as amended hereby,
contains the entire agreement of the parties respecting, and supersedes any
prior understandings and agreements between them respecting, the subject matter
of the Agreement, as amended hereby. The Agreement, as amended hereby, may not
be changed orally, but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension,
release, abandonment or discharge is sought.
18. BINDING AGREEMENT AND GOVERNING LAW. The Agreement, as amended
hereby, may not be assigned by a party without the prior written consent of the
other party. The Agreement, as amended hereby, shall be binding upon and shall
inure to the benefit of the parties and their permitted successors in interest
and shall be construed in accordance with and governed by the laws of the State
of Ohio.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first set forth above.
JACOR COMMUNICATIONS, INC., "De Francesco"
a Delaware corporation
By: /S/ XXXXXX X. XXXXXXXX /S/ XXXXX X. DE FRANCESCO
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Xxxxxx X. Xxxxxxxx XXXXX A. DE FRANCESCO
President & Chief Operating Officer
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