SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE is made and entered into
by and between Xxxxxx X. Xxxxx (hereinafter referred to as "Executive") and Xxx
Radio, Inc. (hereinafter referred to as "Company" or "CXR").
W I T N E S S E T H:
WHEREAS, Executive has been employed as Group Vice President for CXR
with his primary office in Miami/Hollywood, Florida; and
WHEREAS, Executive wishes to resign his employment with CXR, but wishes
to take a six-month personal leave of absence prior to the effective date of
such resignation; and
WHEREAS, CXR has offered to grant Executive the requested leave of
absence with full pay and benefits, which are over and above those benefits to
which Executive would normally be entitled on such resignation from employment;
and
WHEREAS, Executive and Company desire to settle fully and finally all
differences between them, including, but in no way limited to, any differences
that might arise out of Executive's employment with Company, and the termination
thereof.
NOW, THEREFORE, in consideration of the premises and mutual promises
herein contained, it is agreed as follows:
FIRST: Executive hereby resigns from all employment and offices with
CXR, its subsidiaries and affiliates, such resignation to be effective April 3,
2002. CXR accepts this resignation on execution of this Agreement.
From and after October 3, 2001, Executive is relieved from his
day to day responsibilities and shall not be required to regularly report to
work, all subject to paragraph Tenth following.
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Effective October 3, 2001, Executive shall have no authority
to act on behalf of or otherwise commit the Company, and will not do so.
SECOND: (a) Executive acknowledges that except as provided
following, he has already received all compensation to which he is due.
(b) For the period beginning October 4, 2001 through
April 3, 2002, Executive shall be placed on a personal leave of absence (the
"Paid Leave of Absence") during which CXR will pay to Executive his regular
salary at a rate of Twenty-Three Thousand Nine Hundred Forty-Seven Dollars and
Thirty-Three Cents ($23,947.33) per month for the six (6) month period. Such
amounts shall be paid ratably on regular company pay days.
(c) Executive understands and agrees that during the Paid
Leave of Absence he will also be provided group medical, dental, and life
insurance benefits on the same basis and with the same options as heretofore
provided. In addition, Executive has elected to continue his group health
insurance under COBRA and Company has agreed to pay on Executive's behalf the
premium for his coverage and that of his daughter, on a monthly basis, through
August 3, 2003, provided Executive remains in compliance with this Agreement.
(d) Executive is one hundred percent (100%) vested in the
outstanding 1996 options of seventy thousand ninety-seven (70,097) shares of CXR
stock and shall be permitted full exercise of such options according to the
terms and conditions of their grant.
(e) All amounts payable to Executive shall be subject to
any deductions required by law. The payments called for in subparagraphs (b),
(c) and (d) of this Paragraph exceed the amount to which Executive would
otherwise be entitled and are in lieu of and discharge any obligations of
Company to Executive for compensation, bonuses, commissions, over-rides,
severance pay, accrued but unused vacation, and any other expectation of
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remuneration on the part of Executive. Executive understands and agrees that he
is not entitled to and will not receive any portion of his bonus potential for
2001.
(f) Executive will receive any and all vested benefits to
which he is entitled under any benefit, pension or 401(k) plans in which he has
participated, and will continue to do so through April 3, 2002.
THIRD: Executive represents, understands and agrees that his employment
with Company will terminate on April 3, 2002.
FOURTH: This Separation Agreement and General Release shall not in any
way be construed as an indication by Company or Executive that either has acted
improperly with respect to the other or any other person, or that either party
has any rights whatsoever against the other, and each specifically disclaims any
liability to or wrongful acts against the other or any other person, on the part
of itself, its employees or its agents.
FIFTH: Executive represents that he has not filed any complaints or
charges or lawsuits against Company with any governmental agency or any court,
and that he will not do so at any time hereafter, other than for a breach of
this Agreement.
SIXTH: Executive understands and agrees that effective August
29, 2001, he was and is no longer authorized to incur any expenses or
obligations or liabilities on behalf of the Company.
SEVENTH: As a Group Vice president, Executive has been a major
participant in CXR's business strategies, marketing, programming and training,
and has been a primary contact for CXR with employees, business partners, and
content providers who do business with CXR. As a result, Executive has
possession and knowledge of, and access to uniquely confidential and proprietary
information which CXR must protect to preserve and protect its property,
economic
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advantage, relationships and valuable good will. Accordingly, the parties agree
that the following safeguards and protections are reasonable and appropriate.
(a) Executive has or will immediately return to Company
all Company Information including and without limitation all confidential
information and such other physical or personal property which Executive
received or prepared or helped prepare in connection with his employment with
Company, its parent or their affiliates; and Executive has not retained and will
not retain any copies, duplicates, reproductions, or excerpts thereof. The term
"Company Information" as used in this Agreement includes (a) all confidential
information including without limitation information received from third parties
under confidential conditions; and (b) other technical, sales, marketing,
research, training, business, or financial information, the use or disclosure of
which might reasonably be construed to be contrary to the interest of Company,
its parents or their affiliates.
(b) Executive agrees that in the course of his employment
with Company or its predecessors or its subsidiaries, he has acquired Company
Information as defined in subparagraph (a) above. Executive understands and
agrees that such Company Information has been disclosed to Executive in
confidence and for use only of Company. Executive understands and agrees that he
(i) will keep such Company Information confidential at all times during and
after his employment with Company or its predecessors or its subsidiaries, (ii)
will not disclose or communicate Company Information to any third party, and
(iii) will not make use of Company Information on Executive's own behalf, or on
behalf of any third party. The undertakings set forth in this paragraph shall
survive the termination of this Agreement or other arrangements contained in
this Agreement.
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(c) Executive shall not, during his employment with CXR,
and for a period of two (2) years following April 3, 2002, directly or
indirectly, for or on behalf of any person, firm or business entity competitive
with CXR (i) request or advise any present or future advertiser, client,
supplier, or business affiliate of CXR to withdraw, curtail, or cancel its
business dealings with CXR or (ii) request, induce, advise or solicit any
employee of CXR, including its broadcast stations, to terminate his or her
employment with CXR.
(i) Executive understands and agrees that,
because of his responsibilities and identification with CXR he could not work
for any business competitive with CXR without inevitably using information that
is confidential and proprietary to CXR. Accordingly, and in further
consideration of the payments described in Paragraph Second herein, Executive
expressly covenants and agrees that until on or after April 3, 2003, he will not
work for any radio broadcaster which competes with CXR in any market in which
CXR operates or programs a radio station.
EIGHTH: The provisions of this Agreement are severable, and if any part
of it is found to be unenforceable, the other paragraphs shall remain fully
valid and enforceable. This Agreement shall survive the termination of any
arrangements contained herein.
NINTH: Executive represents and agrees that he will keep the terms,
amount and fact of this Separation Agreement and General Release completely
confidential except that Executive may discuss this Agreement with any attorney
who is advising Executive in negotiating this Agreement, and that he will not
hereafter disclose any information concerning this Separation Agreement and
General Release to anyone except his immediate family which includes Executive's
spouse and children residing with Executive; provided, they agree to keep said
information confidential and not disclose it to others.
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TENTH: Executive agrees that, as part consideration for the Paid Leave
of Absence he receives under this Agreement, he shall remain reasonably
available to, and shall fully cooperate with CXR with respect to any matters
over which Executive had control, responsibility or knowledge while with CXR.
ELEVENTH: Except as required by law, Executive shall not comment or
respond to any other party regarding facts, circumstances or opinions arising
out of the Executive's employment, the ending of the employment relationship,
the performance or actions of Executive or the actions, policies, or practices
of the Company, its parents, subsidiaries, affiliates, employees or
representatives, and the only comment Company will make shall be to the effect
that Executive left the Company upon agreeable terms and conditions.
Executive further agrees that he shall not, in any way, voluntarily
assist or encourage any individual or entity in commencing or prosecuting any
action or proceeding, including but not limited to individual claimants, and any
administrative agency or representative entity, or in any way participate or
cooperate in any such actions or proceedings or receive any proceeds as a result
thereof; provided that this clause does not prohibit Executive from truthful
testimony compelled by administrative or judicial process.
TWELFTH: Executive represents and agrees that he fully understands his
right to discuss all aspects of this Separation Agreement and General Release
with his personal attorney; that, to the extent, if any, that he desired, he has
availed himself of this right; that he has carefully read and fully understands
all of the provisions of this Separation Agreement and General Release, and he
is voluntarily entering into this Separation Agreement and General Release.
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THIRTEENTH: Executive acknowledges that he has been given the right to
consider this Agreement for at least twenty-one (21) days, and that, for a
period of seven (7) days after execution of this Agreement, Executive has the
right to revoke the Agreement. Payments required by this Agreement shall not
begin until the seven-day period of revocation has expired.
FOURTEENTH: As a material inducement to Company to enter into this
Separation Agreement and General Release and to provide the Paid Leave of
Absence and other benefits provided herein, Executive agrees as follows:
(a) Executive hereby irrevocably and unconditionally
releases, acquits and forever discharges Company and each of Company's owners,
stockholders, predecessors, successors, assigns, agents, directors, officers,
employees, representatives and attorneys of Company and such parent companies,
divisions, subsidiaries, affiliates (and agents, directors, officers, employees,
representatives and attorneys of such parent companies, divisions, subsidiaries
and affiliates), and all persons acting by, through, under or in concert with
any of them (collectively, "Releasees"), or any of them, from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys' fees and costs actually
incurred) of any nature whatsoever, known or unknown, suspected or unsuspected,
including, but not limited to, rights under federal, state or local laws
prohibiting age, sex, or other forms of discrimination, including the Age
Discrimination in Employment Act, and claims growing out of any legal
restrictions on Company's right to terminate its employees ("Claim" or
"Claims"), which Executive now has, owns or holds, or claims to have, own or
hold, or which Executive at any time heretofore had, owned or held, or claimed
to have had, owned or held, or
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which Executive at any time hereinafter may have, own or hold, or claim to have,
own or hold against each or any of the Releasees.
For the purpose of implementing a full and complete release and
discharge of the Releasees, Executive expressly acknowledges that this
Separation Agreement and General Release is intended to include in its effect,
without limitation, all Claims which Executive does not know or suspect to exist
in his favor at the time of execution hereof, and that this Separation Agreement
and General Release contemplates the extinguishment of any such Claim or Claims.
FIFTEENTH: It is agreed that the compensation and benefits provided in
Paragraph Second, subparagraphs (b), (c) and (d) of this Separation Agreement
and General Release which flow to Executive from Company are subject to
suspension, reduction, cancellation or recoupment in the event that Executive
takes any action or engages in any conduct which violates this Agreement.
SIXTEENTH: As a further material inducement to Company to enter into
this Separation Agreement and General Release, Executive hereby agrees to
indemnify and hold each and all of the Releasees harmless from and against any
and all loss, costs, damages, or expenses, including, without limitation,
attorneys' fees incurred by Releasees, or any of them, arising out of any breach
of this Separation Agreement and General Release by Executive or the fact that
any representation made herein by Executive was false when made.
SEVENTEENTH: Executive represents and acknowledges that in executing
this Separation Agreement and General Release he does not rely and has not
relied upon any representation or statement not set forth herein made by any of
the Releasees or by any of the Releasees' agents, representatives, or attorneys
with regard to the subject matter, basis or effect of this Separation Agreement
and General Release or otherwise.
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This Separation Agreement and General Release sets forth the entire
agreement between the parties hereto, and fully supersedes any and all prior
discussions, agreements or understandings between the parties hereto pertaining
to the subject matter hereof.
EIGHTEENTH: This Agreement shall be binding upon the parties hereto,
their heirs, administrators, successors and assigns.
NINETEENTH: If any particular provision, or part thereof, of this
Agreement is deemed or declared to be invalid, void and/or unenforceable by any
Court of competent jurisdiction, the other provisions or parts thereof of this
Agreement shall continue in full force and effect and shall be valid and
enforceable according to their terms.
The parties agree that the laws of the State of Georgia shall be the
operative and binding law for purposes of interpretation, if any, and
enforcement of this Agreement.
TWENTIETH: The parties agree that venue shall be in Atlanta, Georgia
for any actions involving this agreement or the parties' dealings with each
other.
TWENTY-FIRST: This Agreement may be executed in counterparts.
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PLEASE READ CAREFULLY. THIS SEPARATION AGREEMENT AND GENERAL RELEASE
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Executed at 11:15 a.m. this 30th day of August, 2001.
EXECUTIVE
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Executed at 4:20 p.m. this 30th day of August, 2001.
Xxx Radio, Inc.
By /s/ XXXXXX X. XXXX
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Name
Title President
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