EXHIBIT 10.21
EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is entered into by and between D. Xxxxxxx
XxXxxxxxx ("Employee") and METRO TRAFFIC CONTROL, INC., a Maryland corporation
with its principal office located in Xxxxxx County, Texas (the "Company").
WITNESSETH:
WHEREAS, the Company is in the business of managing a sales
force, selling broadcast and other advertising, and developing, producing
and broadcasting traffic, news, sports, weather and other information
reports throughout the United States; and
WHEREAS, Employee has extensive management, marketing and
operations experience; and
WHEREAS, the Company desires to engage the services of Employee
to serve as Senior Vice President-Television of the Company on the terms
and conditions herein contained; and
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements herein contained, the parties hereto agree as
follows:
1. EMPLOYMENT. The Company hereby employs Employee, and Employee
accepts such employment, and agrees to devote Employee's full time and efforts
to the interests of the Company upon the terms and conditions hereinafter set
forth.
2. TERM OF EMPLOYMENT. Subject to the provisions for termination
hereinafter provided, Employee's term of employment by the Company shall
commence on March 31, 1997 the effective date (the "Effective Date") and shall
continue in effect until December 31, 1999(the "Term"); provided, however, the
Company shall have the right to terminate this Agreement on the second
anniversary of the Effective Date by giving the Employee written notice of such
termination at least ninety (90) days prior to such second anniversary. Unless
otherwise terminated pursuant hereto, if Employee continues to be employed by
the Company after the Term, then Employee's employment shall be deemed to
continue on a month-to-month basis until such time as either party shall deliver
written notice to the other party and this Agreement shall terminate thirty (30)
days after the giving of such notice. Except as otherwise set forth herein, if
either party hereto desires to
terminate this Agreement at the end of the Term or thereafter, the same thirty
(30) days prior written notice shall apply. The period from the Effective Date
through the date thirty (30) days from the date any notice of termination
referred to above is delivered is hereinafter referred to as the "Employment
Period".
3. SERVICES TO BE RENDERED BY EMPLOYEE.
(a) During the Employment Period, Employee shall serve as a Senior
Vice President Television of the Company or in such other position as is
determined from time to time by the Chief Executive Officer of the Company
("Chief Executive Officer") or the Board of Directors of the Company or the
Company's parent company's Board of Directors (the "Board of Directors").
Subject to the direction of the Chief Executive Officer or President of the
Company, the Board of Directors or their designee, Employee shall perform such
duties as from time to time may be delegated to Employee by the Chief Executive
Officer, the President, the Board of Directors, or their designee. Employee
shall devote all of Employee's professional time, energy and ability to the
proper and efficient conduct of the Company's business. Employee shall observe
and comply with all reasonable lawful directions and instructions by and on the
part of the Chief Executive Officer, the President, the Board of Directors or
their designee and endeavor to promote the interests of the Company and not at
any time do anything which may cause or tend to be likely to cause any loss or
damage to the Company in business, reputation or otherwise.
(b) The Company may from time to time call on Employee to perform
services related to the business of developing and broadcasting traffic, news,
sports and weather reports, which may include (in the Company's sole discretion)
contributing to the day-to-day management and operation of such business,
soliciting Sponsors, Corporate Affiliates (as such terms are defined in Section
20 hereof) or customers or dealing with their accounts, or the television or
radio broadcast of traffic, news, sports and weather reports, or other
activities related to the Company's business, as reasonably specified from time
to time by the Chief Executive Officer, the President, the Board of Directors or
their designee. Subject to the foregoing, Employee's specific responsibilities
shall include hiring, training, managing and motivating the Company's employees.
The Company may, in its sole discretion, restrict, expand, change or otherwise
alter the Employee's duties, title or responsibilities; provided, however, such
position shall remain managerial in nature.
(c) Employee acknowledges that Employee will have and owe fiduciary
duties to the Company and its shareholders including, without limitation, the
duties of care, confidentiality and loyalty. Employee further acknowledges that
any contracts or agreements, other than the Company's standard forms without any
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alterations, modifications or deletions, must be reviewed by the Company's Chief
Executive Officer, President, or General Counsel, prior to submitting such
contract or agreement to an employee, affiliate, sponsor or any other party for
execution, discussion or any other reason.
(d) Employee acknowledges that the Company does not allow personal
trade, including but not limited to automobiles.
4. COMPENSATION.
(A) BASE SALARY. For the services to be rendered by Employee during
Employee's employment by the Company, the Company shall pay Employee, and
Employee agrees to accept, a monthly base salary (the "Base Salary") of Sixteen
Thousand Six Hundred and Sixty-Six Dollars and Sixty-Seven Cents ($16,666.67).
Employee's Base Salary shall be payable semi-monthly in arrears on the tenth day
and on the twenty-fifth day of each calendar month or such other date in
conformity with the Company's payroll policies in effect from time to time. The
Base Salary shall increase five (5%) percent per annum during the Term on the
anniversary of the Effective Date.
(B) SIGNING BONUS. Employee shall receive as a signing bonus a cash
payment of (i) Twenty-Five Thousand ($25,000) Dollars within thirty (30) days of
the Effective Date and (ii) Twenty-Five Thousand ($25,000) Dollars by January
31, 1998, provided this agreement has not been terminated ("the Signing Bonus").
In addition, if Employee qualifies for both the full Discretionary Bonus and
Television Bonus (see below) during the first year, Employee shall receive an
additional contingent signing bonus which shall be paid as follows: (i) $25,000
by no later than June 30, 1998 and (ii) $25,000 by no later than December 31,
1998, provided, Employee is still an employee of the Company at the time
payments are to be made. If Employee breaches this Agreement or is terminated
pursuant to Sections 7(a)(i),(ii),(iv), or (v) hereof, in addition to any other
remedies the Company may have, any signing bonus paid to Employee pursuant to
this Agreement shall be immediately repaid to the Company by Employee. Employee
acknowledges that the Base Salary set forth above constitutes full and fair
compensation for the services to be rendered and that this Signing Bonus is paid
to induce Employee's entry into and compliance with the other terms of this
Agreement, so that reimbursement of the Signing Bonus upon a breach as set out
above, does not constitute a penalty.
(C) DISCRETIONARY BONUS. Employee shall be eligible for a bonus of up
to FIFTY THOUSAND ($50,000.00) Dollars per annum (the "Discretionary Bonus"), in
the sole discretion of the Board of Directors (or if the Company has a parent
company, the Board of
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Directors of such parent company) or its Compensation Committee. Partial
calendar years shall be prorated. The Discretionary Bonus potential shall
increase by five (5%) percent per annum for each year during the Term on the
anniversary date of the Effective Date.
(D) TELEVISION BONUS. Employee shall be eligible for annual
bonuses of up to Fifty Thousand ($50,000) Dollars in aggregate (such potential
shall be prorated if Employee was not employed by the Company for the full year)
for obtaining certain operating and\or financial performance criteria which
shall be set by the Company in its sole discretion (the "Television Bonus"). The
Television Bonus shall be based upon the calculation of such numbers on December
31 of each year during the Term and shall be contingent upon Employee being an
employee of the Company on December 31 of a given year. The acquisition of other
entities or their assets shall not be used in any such calculation; provided,
however, the Company may modify such goals based upon any such event in its sole
discretion. The final calculation of such numbers (including accounting method)
and the determination of whether a bonus is due and payable shall be made by the
Company in its sole discretion. Any bonus payable pursuant to this section
shall be paid within ninety (90) days of the end of each calender year.
(E) STOCK OPTIONS. Subject to the approval and terms of the
Company's parent company's Compensation Committee, which approval and terms
shall be in its sole discretion, Employee will be granted options under the
Company's parent company's 1996 Incentive Stock Option Plan (the "1996 Plan") to
purchase Thirty Thousand (30,000) shares of the Company's parent company's
common stock. Such options shall vest over a three (3) year period and may,
subject to compensation committee approval, be in a form as set forth as Exhibit
A hereto.
(F) CUSTOMARY EMPLOYEE DEDUCTIONS. For any and all compensation paid
by the Company to Employee pursuant to this Section 4, the Company shall be
entitled to deduct income tax withholdings, social security and other customary
employee deductions in conformity with the Company's payroll policies in effect
from time to time.
5. EXPENSES. Subject to compliance by Employee with such policies
regarding expenses and expense reimbursement as may be adopted from time to time
by the Company, the Company shall reimburse Employee, or cause Employee to be
reimbursed, in cash for all reasonable expenses. The Company currently
maintains trade relationships for restaurants, hotels, automobile rentals,
courier services, promotional items, etc. which may be used from time to time to
cover ordinary and necessary expenses of Employee and for reimbursement. Except
as expressly set forth in this Section 5, any out-of-pocket cash expenses
incurred by Employee shall be at
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Employee's own expense and without reimbursement by the Company. Employee agrees
that no travel expense will be reimbursed unless booked through the Company's
travel department.
6. BENEFITS.
(A) COMPANY PLANS; INSURANCE. During the term of Employee's
employment hereunder, Employee shall be entitled to participate in all benefit
plans, programs, group insurance policies, vacation sick leave and other
benefits that may from time to time be established by the Company for its
employees, provided that Employee is eligible under the respective provisions
thereof.
(B) VACATION. Employee shall be entitled each year to a vacation in
accordance with the prevailing practice of the Company in regard to vacations
for its employees.
7. TERMINATION OF EMPLOYMENT.
(a) During the Employment Period, the Company shall have the right, if
exercised in good faith, to terminate the employment of Employee hereunder
immediately by giving prior written notice thereof to Employee in the event of
any of the following:
(i) if Employee has (A) willfully failed, refused or habitually has
neglected to carry out or to perform the reasonable duties required of
Employee hereunder or otherwise breached any provision of this Agreement
(other than Sections 8, 9 and 12 hereof, which are governed by Section
7(a)(iv) hereof), (B) willfully breached any statutory or common law
duty; or (C) breached Section 3(c) or 3(d) of this Agreement.
(ii) if Employee is convicted of a felony or a crime involving moral
turpitude or if the Company, acting in good faith and upon reasonable
grounds, determines that Employee has willfully engaged in business
conduct which would injure the reputation of the Company or otherwise
adversely affect its interest if Employee were retained as an employee of
the Company;
(iii) if Employee becomes unable by reason of physical disability or
other incapacity (as may be defined in applicable disability insurance
policies) to carry out or to perform the duties required of Employee
hereunder for a continuous period of ninety (90) days; provided, however,
that Employee's compensation during any period in which Employee is
unable to perform the duties required of Employee hereunder shall be
reduced in accordance with the Company's policies and by any disability
payments
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(excluding any reimbursements for medical expenses and the like) which
Employee is entitled to receive under group or other disability insurance
policies of the Company during such period;
(iv) if Employee breaches any of the provisions of Section 8, 9 or 12
hereof or breaches any of the terms or obligations of any other
noncompetition and/or confidentiality agreements entered into between
Employee and the Company, or the Company's Related Entities (as defined
in Section 20 hereof), if any; or
(v) if employee steals or embezzles assets of the Company.
(b) Employee's employment with the Company shall automatically
terminate (without notice to Employee's estate) upon the death or loss of legal
capacity of Employee.
(c) In the event of any termination of employment pursuant to this
Section 7, Employee (or Employee's estate, as the case may be) shall be entitled
to receive (i) the Base Salary herein provided prorated to the date of such
termination, (ii) Employee's present entitlement, if any, under the Company's
employee benefit plans and programs and (iii) no other compensation.
8. NO CONFLICT OF INTEREST; PROPER CONDUCT; COVENANT NOT TO COMPETE.
(a) The Company and Employee acknowledge and agree that the Company
expects to divulge to Employee certain confidential information and trade
secrets relating to the Company's business, provide information relating to the
Company's customer base and otherwise provide Employee with the ability to
injure the Company's goodwill unless certain reasonable restrictions are imposed
upon Employee which are contained in this Section. Employee agrees that such
restrictions are reasonable and necessary to protect the goodwill, confidential
information and other legitimate business interests of the Company and such
restrictions are entered into freely by Employee.
(b) While employed by the Company, Employee will not compete with the
Company, directly or indirectly, either for Employee or as a member of any
association, partnership, joint venture, limited liability partnership or
limited liability company or other entity, or as a stockholder (except as a
stockholder of less than one percent (1%) of the issued and outstanding stock of
a publicly-held corporation whose gross assets exceed $100,000,000), investor,
officer or director of a corporation, or as an employee, agent, trustee,
associate or consultant of any person, association, trust, partnership, joint
venture, registered
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limited liability partnership or limited liability company, corporation or other
entity, in any business in competition with that carried on by the Company or
its Related Entities. Employee shall not, without the Company's prior written
consent, engage in any activity during Employee's employment that would conflict
with, interfere with, impede or hamper the performance of Employee's duties for
the Company or would otherwise be prejudicial to the Company's business
interests. Employee shall refrain from any offensive or distasteful remarks or
conduct in performance of Employee's duties and shall faithfully comply to the
best of Employee's ability with all of the Company's decisions relating to on-
the-air material and the manner of delivering or using same. Employee shall not
commit any act or become involved in any situation or occurrence that, in the
Company's reasonable judgment, could tend to bring Employee or the Company into
public disrepute, contempt, scandal or ridicule, could provoke, insult or offend
the community or any group or class thereof, or could reflect unfavorably upon
the Company or any of its Sponsors or Corporate Affiliates. Employee shall
comply with all applicable laws and regulations governing the Company and its
business, including without limitation, regulations promulgated by the Federal
Communications Commission or any other regulatory agency.
(c) Employee further agrees that, for a period of one (1) year from
and after Employee's last day of employment under this Agreement (the
"Noncompetition Period"), regardless of cause, Employee will not engage in or
carry on, directly or indirectly, either for Employee or as a member of an
association, trust, partnership, joint venture, limited liability partnership or
limited liability company or other entity, or as a stockholder (other than as a
stockholder of less than one percent (1%) of the issued and outstanding stock of
a publicly-held corporation, whose gross assets exceed $100,000,000), or as an
investor, officer or director of a corporation, or as an employee, agent,
trustee, associate or consultant of any person, association, trust, partnership,
corporation, joint venture, registered limited liability partnership or limited
liability company, or other entity, any business in any standard metropolitan
statistical area (according to the CMSA definitions published from time to time
by the National Census Bureau/National Bureau of Labor Statistics) comprising
any part of the territory in which the Company (or any Related Entity) was or
had been engaged prior to the date of termination, which business is the same as
or substantially similar to any business engaged in by the Company (or any
Related Entity) on the date of termination of employment as provided herein.
The activities of Employee sought to be restricted by the provisions of this
Section 8(c) shall include, without limitation, (i) the management or operation
of a traffic, news, video news, weather, sports or other information report
gathering and broadcast service, (ii) soliciting Sponsors and dealing with
accounts with respect thereto, (iii) soliciting Corporate Affiliates to enter
into any
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contract or arrangement with any person or organization to provide traffic,
news, video news, weather, sports or other information report gathering or
broadcast services, (iv) syndicating and\or broadcasting traffic, news, video
news, weather or sports reports on television or radio, (v) the sale or
packaging of Competitive Broadcast Advertising Vehicles, as that term is defined
in Section 20 and (vi) forming or providing operational assistance to any
business or a division of any business primarily engaged in the foregoing
activities. Notwithstanding the foregoing, Employee shall be permitted to be
employed by a television station, network, syndicator or representative firm;
provided, however, employee is not involved in any business in direct
competition with the Company and such business is not a competitor of the
Company.
(d) Employee further covenants and agrees that during the
Noncompetition Period, Employee will not either individually, or on behalf of
any other person, association, trust, partnership, joint venture, limited
liability partnership or limited company or other entity as an owner, member,
partner, agent, trustee, shareholder, joint venturer or otherwise, directly or
indirectly, solicit any customer of the Company or its Related Entities in
competition with the Company.
(e) Employee further agrees that during the Noncompetition Period
Employee will neither employ nor offer to employ nor solicit employment of any
employee or consultant of the Company or its Related Entities.
(f) Employee further agrees not to solicit, divert or attempt to
divert any business, patronage or customer of the Company or its Related
Entities to Employee or a competitor or rival of the Company or its Related
Entities during the Noncompetition Period.
(g) Employee agrees that the limitations set forth herein on
Employee's rights to compete with the Company and its Related Entities are
reasonable and necessary for the protection of the Company and its Related
Entities. In this regard, Employee specifically agrees that the limitations as
to period of time and geographic area, as well as all other restrictions on
Employee's activities specified herein, are reasonable and necessary for the
protection of the Company and its Related Entities.
(h) Employee agrees that the remedy at law for any breach by Employee
of this Section 8 will be inadequate and that the Company shall be entitled to
injunctive relief (without bond or other undertaking).
(i) Employee and Company agree that to the extent a court of competent
jurisdiction finds any of the foregoing covenants to be overly broad based on
applicable law, then the
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parties agree that the court shall reform the covenants to the extent necessary
to cause such covenants to be reasonable and enforce such covenants as reformed
against Employee.
9. CONFIDENTIAL INFORMATION AND THE RESULTS OF SERVICES. Employee
acknowledges that the Company has established a valuable and extensive trade in
the services it provides, which has been developed at considerable expense to
the Company. Employee agrees that, by virtue of the special knowledge that
Employee has received or will receive from the Company, and the relationship of
trust and confidence between Employee and the Company, Employee has or will have
certain information and knowledge of the operations of the Company that are
confidential and proprietary in nature, including, without limitation,
information about Corporate Affiliates and Sponsors. Employee agrees that
during the term hereof and at any time thereafter Employee will not make use of
or disclose, without the prior consent of the Company, Confidential Information
(as hereinafter defined) relating to the Company and any of its Related Entities
(including, without limitation, its Sponsor lists, its Corporate Affiliates, its
technical systems, its contracts, its methods of operation, its business plans
and opportunities and its trade secrets), and further, that Employee will return
to the Company all written materials in Employee's possession embodying such
Confidential Information. For purposes of this Agreement, "Confidential
Information" means information obtained by Employee during Employee's employment
relationship with the Company which concerns the affairs of the Company or its
Related Entities and which the Company has requested be held in confidence and
could reasonably expect to be held in confidence, or the disclosure of which
would likely be embarrassing, detrimental or disadvantageous to the Company or
its Related Entities. Confidential Information, however, shall not include
information which Employee can show by written document to be:
(a) Information that is at the time of receipt by Employee in the public
domain or is otherwise generally known in the industry or subsequently
enters the public domain or becomes generally known in the industry
through no fault of Employee;
(b) Information that at any time is received in good faith by Employee
from a third party which was lawfully in possession of the same and had
the right to disclose the same.
The parties hereto agree that the remedy at law for any breach of Employee's
obligations under this Section 9 of this Agreement would be inadequate and that
any enforcing party shall be entitled to injunctive or other equitable relief
(without bond or undertaking) in any proceeding which may be brought to enforce
any provisions of this Section.
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10. ADVERTISING AND PUBLICITY. Employee hereby grants the Company the
royalty-free right to use and license others to use Employee's name, nickname,
recorded voice, biographical material, portraits, pictures, and likenesses for
advertising purposes and purposes of trade, promotion and publicity in
connection with the institutions, services and products for the Company, its
Related Entities, Sponsors and Corporate Affiliates, such uses to be at such
times, in such manner and through such media as the Company may in its sole
discretion determine. Such right shall last for so long as Employee is employed
by the Company and, in connection with the use or exploitation of any material
in which Employee has been involved during Employee's employment, perpetually
thereafter. Employee shall not authorize or release any advertising or
promotional matter or publicity in any form with reference to Employee's
services hereunder, or to the Company's or its related Entities' programs,
Sponsors or Corporate Affiliates, without the Company's prior written consent.
11. WORK FOR HIRE. Employee agrees that any ideas, concepts,
techniques, or computer programs relating to the business or operations of the
Company and its Related Entities which are developed by Employee during
Employee's employment hereunder, including each program and announcement
prepared for broadcast, and the titles, content, format, idea, theme, script,
characteristics, and other attributes thereof, shall be deemed to have been made
within the scope of Employee's employment and therefore constitute works for
hire and shall automatically upon their creation become the exclusive property
of the Company. To the extent such items are not works for hire under
applicable law, Employee assigns them and any and all intangible proprietary
rights relating thereto to the Company in their entirety and agrees to execute
any and all documents necessary or desired by the Company to reflect the
Company's ownership thereof.
12. COMMUNICATIONS ACT OF 1934. Employee represents and warrants that
neither Employee nor, to the best of Employee's knowledge, information and
belief, any other person, has accepted or agreed to accept, or has paid or
provided or agreed to pay or provide, any money, service or any other valuable
consideration, as defined in Section 507 of the Communications Act of 1934, as
amended, for the broadcast of any matter contained in programs. Employee further
represents and warrants that, during Employee's employment, Employee shall
comply with all legal requirements.
13. MERGER OR REORGANIZATION. In the event of any merger,
consolidation, dissolution or reorganization of the Company (including but not
limited to any reorganization where the Company is not the surviving or
resulting entity), or any transfer of all or substantially all of the assets of
the Company, the provisions of this Agreement shall inure to the benefit of and
shall be binding upon the surviving or resulting partnership or the
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corporation (or other entity) or person(s) to which such assets shall be
transferred.
14. REMEDIES. Except as it may elect otherwise, the Company shall have
all rights, powers or remedies provided by law or equity for breach of this
Agreement available to it, it being understood and agreed that no one of them
shall be considered as exclusive of the others or as exclusive of any other
rights, powers and remedies allowed by law. The exercise or partial exercise of
any right, power or remedy shall neither constitute the election thereof nor the
waiver of any other right, power or remedy. Without limiting the generality of
the foregoing, Employee agrees that, in addition to all other rights and
remedies available at law or in equity, the Company shall be entitled to
enforcement of this Agreement in accordance with the principles of equity, the
remedy at law being hereby agreed and acknowledged by Employee to be inadequate.
15. WAIVER OF BREACH OF AGREEMENT. If either party waives a breach of
this Agreement by the other party, that waiver will not operate or be construed
as a waiver of any subsequent breaches.
16. ASSIGNMENT. The rights of the Company hereunder may, without the
consent of Employee, be assigned by the Company to any Related Entity or
successor of the Company or any entity which acquires all or substantially all
of the Company's assets. Except as provided in the preceding sentence or in
Section 13 hereof, the Company may not assign all or any of its rights, duties
or obligations hereunder without the prior written consent of Employee. This
Agreement is not assignable by Employee. Any attempt by Employee to assign this
Agreement, or any portion thereof, shall be deemed null and void and of no force
and effect.
17. NOTICES. All notices, requests, demands and other communications
permitted or required hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered or if deposited in the United States
mail, first class, postage prepaid, registered or certified, addressed as
follows:
(a) If to Employee, addressed to Employee at the address set forth
below Employee's name on the execution page hereof.
(b) If to the Company, addressed to:
Metro Traffic Control, Inc.
0000 Xxxx Xxx Xxxx., Xxxxx #0000
Xxxxxxx, Xxxxx 00000
Attention: President
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or to such other address as either party hereto may request by written notice as
herein provided.
18. SEVERABILITY. Any provision hereof prohibited by or unenforceable
under any applicable law of any jurisdiction shall as to such jurisdiction be
deemed ineffective and deleted herefrom without affecting any other provision of
this Agreement. It is the desire of the parties hereto that this Agreement be
enforced to the maximum extent permitted by law, and should any provision
contained herein be held unenforceable, the parties hereby agree and consent
that such provision shall be reformed to make it a valid and enforceable
provision to the maximum extent permitted by law.
19. TITLE AND HEADINGS; EXHIBITS. Titles and headings to Sections
hereof are for the purpose of reference only and shall in no way limit, define
or otherwise affect the provisions hereof. Any and all exhibits referred to
herein are, by such reference, incorporated herein and made a part hereof.
20. CERTAIN DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the meanings indicated:
(A) CORPORATE AFFILIATES. Any organization, entity or person with
whom the Company has a contract or other arrangement to provide traffic, news,
weather, sports or other information, whether by broadcast, computer or any
other means.
(B) SPONSOR(S). Any and all advertisers (including their subsidiaries
and affiliates) whose commercial material is to be or is incorporated in any one
or more programs or announcements, live or recorded, broadcast over the
facilities of the Company or by the Company.
(C) RELATED ENTITY OR RELATED ENTITIES. Any entity (or entities) that
directly or indirectly controls, is controlled by, or is under common control
with the Company (or its successor or assign). The term "entity" as used in
this Section 20(c) means an individual, corporation, partnership, joint venture,
limited liability partnership or limited liability company, trust,
unincorporated organization, association or other entity whose principal
business is gathering, disseminating or reporting traffic, news, video news,
sports, weather or other information or the sale or packaging of Competitive
Broadcast Advertising Vehicles. As used in this Section 20(c), the term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a person or entity,
whether through the ownership of voting securities, by contract or otherwise.
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(D) COMPETITIVE BROADCAST ADVERTISING VEHICLE(S). An advertising
vehicle shall be deemed to be a Competitive Broadcast Advertising Vehicle if (i)
it consists of five to fifteen second commercial mentions imbedded in any news
break format, news, weather, sports or traffic information broadcast immediately
before or after any such programming, or in connection with such programming,
and (ii) it is offered for sale in a package including the broadcast of such
commercial mentions or identification as a Sponsor of any such programming on
more than two radio stations in any one CMSA.
21. CHOICE OF LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
22. WAIVER OF RIGHTS AND CONSENT TO ARBITRATION. Employee shall and
does hereby irrevocably waive the right to file any complaints against the
Company with any federal, state or local agencies, including but not limited to,
the Equal Employment Opportunity Commission, and the Texas or other state
Commission on Human Rights or to file any claim, institute litigation or other
legal action based on the employment relationship or any activity covered by the
terms of this agreement. The Employee agrees and acknowledges that in exchange
for the relinquishment of those rights that any dispute, controversy or claim
arising out of this Agreement, except for the injunctive relief provided for in
paragraphs 8 and 9 above, or the employment relationship between Employee and
the Company shall be finally settled by arbitration in Houston, Texas in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association in effect on the date of this Agreement and judgment upon the award
may be entered in any court having jurisdiction thereof.
23. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their respective heirs, executors,
successors and permitted assigns.
24. ENTIRE AGREEMENT AND AMENDMENT. This Agreement supersedes all prior
understandings and agreements between the parties with respect to the subject
matter hereof. This Agreement contains the entire agreement of the parties with
respect to the subject matter covered hereby and may be amended, waived or
terminated only by an instrument in writing executed by both parties hereto.
25. EXECUTION BY COMPANY. Submission of this Agreement to Employee, or
Employee's agents or attorneys, for examination or signature does not constitute
or imply an offer of employment, and
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this Agreement shall have no binding effect until execution hereof by both the
Company and Employee.
26. NO INFERENCE AGAINST AUTHOR. No provision of this Agreement shall
be interpreted against any party because such party or its legal representative
drafted such provision.
IN WITNESS WHEREOF, this Agreement is EXECUTED as of the 31st day of
March 1997 to be EFFECTIVE FOR ALL PURPOSES as of the Effective Date.
"COMPANY"
METRO TRAFFIC CONTROL, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Printed Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
"EMPLOYEE"
D. Xxxxxxx XxXxxxxxx
---------------------------------
D. Xxxxxxx XxXxxxxxx
Address: 0000 X. Xxxxxxxx Xx.
Xxxxxxxxx, XX 00000
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