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EXHIBIT 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the 27th day of January, 1997 by and between Pacific Star Communications,
Inc. (formerly known as Community Acquisition Company, Inc. ), a Delaware
corporation (together with its successors and assigns permitted hereunder, the
"Company"), and Xxxxxx X. Xxxxxx (also known as Dex Xxxxx) (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
to employ the Executive on the terms and conditions set forth herein.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EMPLOYMENT PERIOD. Subject to Section 3, the Company hereby
agrees to employ the Executive, and the Executive hereby agrees to be employed
by the Company, in accordance with the terms and provisions of this Agreement,
for the period commencing on January 1, 1997 and ending on the fifth
anniversary of such date (the "Employment Period"); provided, however, that
commencing on such fifth anniversary and on each anniversary thereafter, the
Employment Period shall automatically be extended for one additional year
unless at least six months prior to such anniversary (but no more than 12
months prior to such anniversary), the Company or the Executive shall have
given written notice that it or he, as applicable, does not wish to extend this
Agreement (a "Non-Renewal Notice"). The term "Employment Period", as utilized
in this Agreement, shall refer to the Employment Period as so automatically
extended.
2. TERMS OF EMPLOYMENT.
(a) Position and Duties.
(i) During the term of the Executive's employment, the
Executive shall serve as President and the Chief Operating Officer of the
Company and the Chief Operating Officer of the West Coast Group operating
division of the Company's parent, Capstar Broadcasting Partners, Inc.
("Capstar"), as defined from time to time by the Chief Executive Officer of
Capstar (the "West Coast Group") and, in so doing, shall report to the Board
and the President and/or Chief Executive Officer of Capstar. The Executive
shall have supervision and control over, and responsibility for, such
management and operational functions of the West Coast Group currently assigned
to such position, and shall have such other powers and duties (including
holding officer positions with the Company and one or more subsidiaries of the
Company) as may from time to time be prescribed by
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the Board, so long as such powers and duties are reasonable and customary for
the Chief Operating Officer of an enterprise comparable to the Company.
(ii) During the term of the Executive's employment, and
excluding any periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote full business time to the business and
affairs of the West Coast Group and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully, effectively and efficiently such
responsibilities. During the term of Executive's employment it shall not be a
violation of this Agreement for the Executive to (1) serve on corporate, civic
or charitable boards or committees, (2) deliver lectures or fulfill speaking
engagements and (3) manage personal investments, so long as such activities do
not significantly interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with this
Agreement.
(b) Compensation.
(i) Base Salary. During the term of the Executive's
employment, the Executive shall receive an annual base salary ("Annual Base
Salary"), which shall be paid in accordance with the customary payroll
practices of the Company, at least equal to $150,000 for the initial year of
the Employment Period and an amount of at least $200,000 for each subsequent
year of the Employment Period. Commencing on January 1, 1998, and on each
subsequent January 1 as long as the Executive remains an employee of the
Company (each such January 1 being herein referred to as an "Adjustment Date"),
the Annual Base Salary of the Executive (which shall be deemed equal to
$200,000 for initial Adjustment Date) shall be adjusted to reflect increases in
the Consumer Price Index for Urban Wage Earners and Clerical Workers for the
San Diego, California xxxxxxxxxxxx xxxx (0000 = 100), published by the Bureau
of Labor Statistics, United States Department of Labor (the "Index"). On each
Adjustment Date, the Executive's Annual Base Salary shall be increased by a
percentage of the Annual Base Salary for the prior calendar year equal to the
percentage increase in the Index for the prior calendar year. The result of
such calculation shall constitute the Executive's Annual Base Salary, as
adjusted, commencing on the Adjustment Date then at hand and continuing until
the next Adjustment Date. If (1) the Index ceases using the 1967 average of
100 as the basis of calculation, (2) a significant change is made in the number
or nature (or both) of items used in determining the Index, or (3) the Index is
discontinued for any reason, then the Company and the Executive shall, in good
faith, agree upon a substitute Index or procedure which reasonably reflects and
monitors the salaries of urban wage earners and clerical workers in the San
Diego, California metropolitan area. Any increase in Annual Base Salary shall
not serve to limit or reduce any other obligation to the Executive under this
Agreement. The term Annual Base Salary as utilized in this Agreement shall
refer to Annual Base Salary as so increased.
(ii) Bonuses. For each fiscal year of the Company, the
Board shall approve a budget which shall include, among other things, a target
for the revenues and net income
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of the West Coast Group for that year. If the revenues and net income for a
fiscal year of the West Coast Group equal or exceed the targets for such
revenues and net income as set forth in the budget, as evidenced by the audited
income statement of Capstar for such fiscal year, then, in addition to the
Annual Base Salary, the Executive shall be awarded a bonus in the amount of
$50,000 (or such greater amount as the Board may determine appropriate) with
respect to such fiscal year. At the election of the Board, the Bonus shall be
payable on the first day of the first calendar month after such audited income
statement is delivered to the Board or shall be payable in monthly payments, as
nearly equal as practicable, payable on the first day of such first calendar
month and on the first day of each calendar month thereafter occurring during
the remainder of the fiscal year next succeeding the fiscal year with respect
to which the bonus is payable.
(iii) Incentive, Savings and Retirement Plans. During
the term of the Executive's employment, the Executive shall be entitled to
participate in all incentive, savings and retirement plans, practices, policies
and programs applicable generally to other executives of the Company
("Investment Plans").
(iv) Welfare Benefit Plans. During the term of the
Executive's employment, the Executive and/or the Executive's family, as the
case may be, shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and programs
("Welfare Plans") provided by the Company (including, without limitation,
medical, prescription, dental, disability, salary continuance, employee life,
group life, accidental death and travel accident insurance plans and programs)
to the extent applicable generally to other executives of the Company.
(v) Stock Options. In addition to any benefits the
Executive may receive pursuant to paragraph 2(b)(iii), as may be determined
appropriate by the Board of Directors of Capstar, Capstar may, from time to
time, grant Executive stock options (the "Executive Options") exercisable for
shares of common stock, par value $.01 per share, of Capstar and subject to the
terms of this Agreement, such Executive Options shall have such terms and
provisions as may be determined appropriate by the Board of Directors of
Capstar. Any such Executive Options will be granted under Capstar's 1996 Stock
Option Plan.
(vi) Perquisites. During the term of the Executive's
employment, the Executive shall be entitled to receive (in addition to the
benefits described above) such perquisites and fringe benefits appertaining to
his position in accordance with any practice established by the Board.
(vii) Expenses. During the term of the Executive's
employment, the Executive shall be entitled to receive prompt reimbursement for
all reasonable employment expenses incurred by the Executive in accordance with
the policies, practices and procedures of the Company.
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(viii) Vacation and Holidays. During the term of the
Executive's employment, the Executive shall be entitled to paid vacation and
paid holidays in accordance with the plans, policies, programs and practices of
the Company for its executive officers.
3. TERMINATION OF EMPLOYMENT.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment
Period. If the Disability of the Executive has occurred during the Employment
Period (pursuant to the definition of Disability set forth below), the Company
may give to the Executive written notice in accordance with Section 11(b) of
its intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties.
For purposes of this Agreement, "Disability" shall mean the Executive's
inability to perform his duties and obligations hereunder for a period of 180
consecutive days due to mental or physical incapacity as determined by a
physician selected by the Company or its insurers and acceptable to the
Executive or the Executive's legal representative (such agreement as to
acceptability not to be withheld unreasonably).
(b) Cause or Board Termination. The Company may terminate the
Executive's employment during the Employment Period for Cause or without Cause.
For purposes of this Agreement, "Cause" shall mean (i) a breach by the
Executive of the Executive's obligations under Section 2(a) (other than as a
result of physical or mental incapacity) which constitutes a continued material
nonperformance by the Executive of his obligations and duties thereunder, as
determined by the Board, and which is not remedied within 30 days after receipt
of written notice from the Company specifying such breach, (ii) commission by
the Executive of an act of fraud upon, or willful misconduct toward, the
Company, as reasonably determined by a majority of the disinterested members of
the Board (neither the Executive nor members of his family being deemed
disinterested for this purpose) after a hearing by the Board following ten
days' notice to the Executive of such hearing, (iii) a material breach by the
Executive of Section 6 or Section 9, (iv) the conviction of the Executive of
any felony (or a plea of nolo contendere thereto); or (v) the failure of the
Executive to carry out, or comply with, in any material respect any directive
of the Board consistent with the terms of this Agreement, which is not remedied
within 30 days after receipt of written notice from the Company specifying such
failure. For purposes of this Agreement, a "Board Determination" shall mean a
determination by the Board (which is evidenced by one or more written
resolutions to such effect) (i) to terminate the Executive's employment during
the Employment Period based upon the Board's dissatisfaction with the manner in
which the Executive has performed his obligations and duties under Section 2(a)
and (ii) that Cause does not exist as a basis for such termination. For
purposes of this Agreement, "without Cause" shall mean a termination by the
Company of the
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Executive's employment during the Employment Period pursuant to a Board
Determination or for any other reason other than a termination based upon
Cause, death or Disability.
(c) Good Reason. The Executive's employment may be terminated
during the Employment Period by the Executive for Good Reason or without Good
Reason; provided, however, that the Executive agrees not to terminate his
employment for Good Reason unless (i) the Executive has given the Company at
least 30 days' prior written notice of his intent to terminate his employment
for Good Reason, which notice shall specify the facts and circumstances
constituting Good Reason, and (ii) the Company has not remedied such facts and
circumstances constituting Good Reason within such 30-day period. For purposes
of this Agreement, "Good Reason" shall mean:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 2(a) or any other action by the
Company which results in a material diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive (without limiting the foregoing, the Company and the Executive agree
that the delegation of the authority, duties or responsibilities of the
Executive to another person or persons, including any committee, shall be
deemed to be an action by the Company which results in a material diminution in
the Executive's position, authority, duties, or responsibilities as
contemplated by Section 2(a)), provided, however, that Good Reason may not be
asserted by the Executive under this clause (i) of Section 3(c) after a
Non-Renewal Notice has been given by either the Company or the Executive;
(ii) any termination or material reduction of a material
benefit under any Investment Plan or Welfare Plan in which the Executive
participates unless (1) there is substituted a comparable benefit that is
economically substantially equivalent to the terminated or reduced benefit
prior to such termination or reduction or (2) benefits under such Investment
Plan or Welfare Plan are terminated or reduced with respect to all employees
previously granted benefits thereunder;
(iii) any failure by the Company to comply with any of
the provisions of Section 2(b), other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(iv) any failure by the Company to comply with and
satisfy Section 8(c), provided that such successor has received at least ten
days prior written notice from the Company or the Executive of the requirements
of Section 8(c);
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(v) the relocation or transfer of the Executive's
principal office to a location more than 50 miles from the Executive's current
executive offices as such are maintained on the date hereof in the city of San
Diego, California; or
(vi) without limiting the generality of the foregoing,
any material breach by the Company or any of its subsidiaries or other
affiliates (as defined below) of (1) this Agreement or (2) any other agreement
between the Executive and the Company or any such subsidiary or other
affiliate.
As used in this Agreement, "affiliate" means, with respect to a person,
any other person controlling, controlled by or under common control with the
first person; the term "control," and correlative terms, means the power,
whether by contract, equity ownership or otherwise, to direct the policies or
management of a person; and "person" means an individual, partnership,
corporation, limited liability company, trust or unincorporated organization,
or a government or agency or political subdivision thereof.
(d) Notice of Termination. Any termination by the Company for
Cause or without Cause, or by the Executive for Good Reason or without Good
Reason, shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 11(b). For purposes of this Agreement,
a "Notice of Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated and (iii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice, specifies the
termination date (which date shall not be more than 15 days after the giving of
such notice). The failure by the Executive or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing
of Good Reason, Cause or a termination made pursuant to a Board Determination
shall not waive any right of the Executive or the Company hereunder or preclude
the Executive or the Company from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause or pursuant
to a Board Determination, or by the Executive for Good Reason or without Good
Reason, the date of receipt of the Notice of Termination or any later date
specified therein pursuant to Section 3(d), as the case may be, (ii) if the
Executive's employment is terminated by the Company other than for Cause or
pursuant to a Board Determination, the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment is
terminated by reason of death or Disability, the date of death of the Executive
or the Disability Effective Date, as the case may be.
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4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) Good Reason; Other Than for Cause, Death or Disability.
If, during the Employment Period, the Company shall terminate the Executive's
employment other than for either Cause or Disability or the Executive shall
terminate his employment for Good Reason, and the termination of the
Executive's employment in any case is not due to his death or Disability:
(i) The Company shall pay to the Executive (1) in a
lump sum in cash within ten days after the Date of Termination the aggregate of
the following amounts: (a) the sum of the Executive's Annual Base Salary
through the Date of Termination to the extent not theretofore paid and any
compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon) and any accrued vacation pay ("Accrued
Obligations"); and (b) any amount arising from Executive's participation in, or
benefits under, any Investment Plans ("Accrued Investments"), which amounts
shall be payable in accordance with the terms and conditions of such Investment
Plans; and (2) in regular installments in accordance with the customary payroll
practices of the Company the Executive's then current Annual Base Salary for a
period of one year from the Date of Termination.
(ii) Notwithstanding the terms or conditions of any
Executive Option, stock option, stock appreciation right or similar agreements
between the Company and the Executive, the Executive shall vest, as of the Date
of Termination, in all rights under such agreements (i.e., Executive Options or
other similar stock options that would otherwise vest after the Date of
Termination) and thereafter shall be permitted to exercise any and all such
rights until the earlier to occur of (x) the expiration of such Executive
Options or other similar stock option, stock appreciation right or similar
agreement pursuant to its terms or (y) 5:00 p.m., Dallas, Texas time, on the
90th day after the Date of Termination; provided, however, the provisions of
this clause (ii) of this Section 4(a) shall not apply to a termination of the
Executive's employment during the Employment Period that is made by the Company
pursuant to a Board Determination.
(iii) Except as otherwise provided in Section 4(e), the
Executive (and members of his family) shall be entitled to continue their
participation in the Company's Welfare Plans until the earlier of (1) a period
of one year from the Date of Termination or (2) the date the Executive has
commenced new employment and has become eligible for comparable medical
benefits.
(b) Death. If the Executive's employment is terminated by
reason of the Executive's death during the Employment Period, the Company shall
pay to his legal representatives (i) in a lump sum in cash within ten days
after the Date of Termination the Accrued Obligations; and (ii) the Accrued
Investments which amounts shall be payable in accordance with the terms and
conditions of the Investment Plans.
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(c) Disability. If the Executive's employment is terminated
by reason of the Executive's Disability during the Employment Period, the
Company shall have no further payment obligations to the Executive or his legal
representatives under this Agreement, other than (i) the payment in a lump sum
in cash within ten days after the Date of Termination, of the Accrued
Obligations and (ii) the Accrued Investments which amounts shall be payable in
accordance with the terms and conditions of the Investment Plans.
(d) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated by the Company for Cause or by the Executive
without Good Reason during the Employment Period, the Company shall have no
further payment obligations to the Executive other than (i) the payment, in a
lump sum in cash within ten days after the Date of Termination, of the Accrued
Obligations, (ii) payment of the Accrued Investments, which amounts shall be
payable in accordance with terms and conditions of the Investment Plans, and
(iii) the continuance of benefits under the Welfare Plans to the Date of
Termination.
(e) If pursuant to the terms and provisions of the Company's
Welfare Plans the Executive (or members of his family) are not eligible to
participate in the Company's Welfare Plans because the Executive is no longer
an employee of the Company, then the Company may fulfill its obligations under
clause (iii) of Section 4(a) by either providing to the Executive (or his legal
representatives), or reimbursing the Executive (or his legal representatives)
for the costs of, benefits substantially similar to the benefits provided by
the Company to its senior management under its Welfare Plans as such may from
time to time exist after the Date of Termination.
5. FULL SETTLEMENT, MITIGATION. In no event shall the Executive be
obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the provisions
of this Agreement and such amounts shall not be reduced whether or not the
Executive obtains other employment. Neither the Executive nor the Company
shall be liable to the other party for any damages in addition to the amounts
payable under Section 4 arising out of the termination of the Executive's
employment prior to the end of the Employment Period; provided, however, that
the Company shall be entitled to seek damages for any breach of Sections 6, 7
or 9 or criminal misconduct.
6. CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that the West Coast Group, the
Company and their affiliates have trade, business and financial secrets and
other confidential and proprietary information (collectively, the "Confidential
Information"). As defined herein, Confidential Information shall not include
(i) information that is generally known to other persons or entities who can
obtain economic value from its disclosure or use and (ii) information required
to be disclosed by the Executive pursuant to a subpoena or court order, or
pursuant to a requirement of a governmental agency or law of the United States
of America or a state thereof or any governmental
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or political subdivision thereof; provided, however, that the Executive shall
take all reasonable steps to prohibit disclosure pursuant to subsection (ii)
above.
(b) The Executive agrees (i) to hold such Confidential
Information in confidence and (ii) not to release such information to any
person (other than Company employees and other persons to whom the Company has
authorized the Executive to disclose such information and then only to the
extent that such Company employees and other persons authorized by the Company
have a need for such knowledge).
(c) The Executive further agrees not to use any Confidential
Information for the benefit of any person or entity other than the Company.
7. SURRENDER OF MATERIALS UPON TERMINATION. Upon any termination of
the Executive's employment, the Executive shall immediately return to the
Company all copies, in whatever form, of any and all Confidential Information
and other properties of the West Coast Group, the Company and their affiliates
which are in the Executive's possession, custody or control.
8. SUCCESSORS.
(a) This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
9. NON-COMPETITION.
(a) The term of Non-Competition (herein so called) shall be
for a term beginning on the date hereof and continuing until the first
anniversary of the Date of Termination.
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(b) During the term of Non-Competition, the Executive will not
(other than for the benefit of the Company pursuant to this Agreement) directly
or indirectly, individually or as an officer, director, employee, shareholder,
consultant, contractor, partner, joint venturer, agent, equity owner or in any
capacity whatsoever, (i) engage in any radio broadcasting business that
transmits a primary or city-grade signal within a Metro Survey Area (as
currently defined by The Arbitron Company in its Radio Markets Reports) in
which a station directly operated by the Company transmits a primary or city-
grade signal (1), with respect to the term of Non-Competition that is during
the Executive's employment, during such term of employment, and (2), with
respect to the term of Non-Competition that is after the term of the
Executive's employment, on the Date of Termination (all such areas being
collectively called the "Geographic Area") (a "Competing Business"), (ii) hire,
attempt to hire, or contact or solicit with respect to hiring any employee of
the Company, or (iii) divert or take away any customers or suppliers of the
Company in the Geographic Area. Notwithstanding the foregoing, the Company
agrees that the Executive may own less than five percent of the outstanding
voting securities of any publicly traded company that is a Competing Business
so long as the Executive does not otherwise participate in such competing
business in any way prohibited by the preceding clause. As used in this
Section 9(b) (and in Section 6), "Company" shall include the Company, Capstar
and any subsidiaries of Capstar.
(c) During the term of Non-Competition, the Executive will not
use the Executive's access to, knowledge of, or application of Confidential
Information to perform any duty for any Competing Business; it being understood
and agreed to that this Section 9(c) shall be in addition to and not be
construed as a limitation upon the covenants in Section 9(b) hereof.
(d) The Executive acknowledges that the geographic boundaries,
scope of prohibited activities, and time duration of the preceding paragraphs
are reasonable in nature and are no broader than are necessary to maintain the
confidentiality and the goodwill of the Company's proprietary information,
plans and services and to protect the other legitimate business interests of
the Company.
10. EFFECT OF AGREEMENT ON OTHER BENEFITS. The existence of this
Agreement shall not prohibit or restrict the Executive's entitlement to full
participation in the executive compensation, employee benefit and other plans
or programs in which executives of the Company are eligible to participate.
11. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. Whenever the terms
"hereof", "hereby", "herein", or words of similar import are used in this
Agreement they shall be construed as referring to this Agreement in its
entirety rather than to a particular section or
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provision, unless the context specifically indicates to the contrary. Any
reference to a particular "Section" or "paragraph" shall be construed as
referring to the indicated section or paragraph of this Agreement unless the
context indicates to the contrary. The use of the term "including" herein
shall be construed as meaning "including without limitation." This Agreement
may not be amended or modified otherwise than by a written agreement executed
by the parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive: Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxx Xxxxxxxx
Facsimile: (000) 000-0000
If to the Company: Pacific Star Communications, Inc.
c/o Capstar Broadcasting Partners, Inc.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effective during the term
of this Agreement, such provision shall be fully severable; this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a portion of this Agreement; and the remaining
provisions of this Agreement shall remain in full force and effect and shall
not be affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement.
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Furthermore, in lieu of such illegal, invalid or unenforceable provision there
shall be added automatically as part of this Agreement a provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible
and be legal, valid and enforceable.
(d) The Company agrees to attempt to obtain and maintain a
director's and officer's liability insurance policy during the term of the
Executive's employment covering the Executive on commercially reasonable terms,
and the amount of coverage shall be reasonable in relation to the Executive's
position and responsibilities hereunder; provided, however, that such coverage
may be reduced or eliminated to the extent that the Company reduces or
eliminates coverage for its directors and executives generally.
(e) The Company may withhold from any amounts payable under
this Agreement such Federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(f) The Executive's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(g) The Executive acknowledges that money damages would be
both incalculable and an insufficient remedy for a breach of Section 6 or 9 by
the Executive and that any such breach would cause the Company irreparable
harm. Accordingly, the Company, in addition to any other remedies at law or in
equity it may have, shall be entitled, without the requirement of posting of
bond or other security, to equitable relief, including injunctive relief and
specific performance, in connection with a breach of Section 6 or 9 by the
Executive.
(h) The provisions of this Agreement constitute the complete
understanding and agreement between the parties with respect to the subject
matter hereof.
(i) This Agreement may be executed in two or more
counterparts.
(j) In the event any dispute or controversy arises under this
Agreement and is not resolved by mutual written agreement between the Executive
and the Company within 30 days after notice of the dispute is first given,
then, upon the written request of the Executive or the Company, such dispute or
controversy shall be submitted to arbitration to be conducted in accordance
with the rules of the American Arbitration Association. Judgment may be
entered thereon and the results of the arbitration will be binding and
conclusive on the parties hereto. Any arbitrator's award or finding or any
judgment or verdict thereon will be final and unappealable. All parties agree
that venue for arbitration will be in Dallas, Texas, and that any arbitration
commenced in any other venue will be
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transferred to Dallas, Texas, upon the written request of any party to this
Agreement. All arbitrations will have three individuals acting as arbitrators:
one arbitrator will be selected by the Executive, one arbitrator will be
selected by the Company, and the two arbitrators so selected will select a
third arbitrator. Any arbitrator selected by a party will not be affiliated,
associated or related to the party selecting that arbitrator in any matter
whatsoever. The decision of the majority of the arbitrators will be binding on
all parties. The Company shall be responsible for paying its own and the
Executive's attorneys fees, costs and other expenses pertaining to any such
arbitration and enforcement regardless of whether an arbitrator's award or
finding or any judgment or verdict thereon is entered against the Executive.
The Company shall promptly (and in no event after ten days following its
receipt from the Executive of each written request therefor) reimburse the
Executive for his reasonable attorneys fees, costs and other expenses
pertaining to any such arbitration and the enforcement thereof.
(k) Sections 6 and 9 of this Agreement shall survive the
termination of this Agreement.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from the Board, the Company has caused this
Agreement to be executed in its name on its behalf, all as of the day and year
first above written.
EXECUTIVE
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx
(also known as Dex Xxxxx)
PACIFIC STAR COMMUNICATIONS, INC.
/s/ XXXXXXX X. XXXXXXXX, XX.
-----------------------------------
By: Xxxxxxx X. Xxxxxxxx, Xx.
--------------------------------
Title: Executive Vice President
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