TRANSACTION AGREEMENT
THIS TRANSACTION AGREEMENT is made and entered into as of as of January 7,
1997, by and between PREMIERE RADIO NETWORKS, INC. ("Company), a Delaware
corporation, and XXXX X. XXXXX, an individual ("Xxxxx").
WITNESSETH
The parties hereto are to enter into the Consulting Agreement of even date
herewith (as amended, supplemented or otherwise modified from time to time, the
"Consulting Agreement"). Capitalized terms appearing herein and not otherwise
defined herein shall have the meanings specified in the Consulting Agreement.
Xxxxx has been instrumental in arranging and effecting the transaction (the
"Transaction") contemplated by that certain Agreement and Plan of Merger (the
"Merger Agreement") between Company and AME dated as of December 31, 1996. This
Agreement shall constitute the agreement as to the engagement of Xxxxx by
Company to provide legal and financial services to Company in connection with
the Transaction. In consideration of Xxxxx'x services heretofore performed on
behalf of Company, the full value of which the parties acknowledge will be
enhanced by Xxxxx'x performance under the Consulting Agreement, the parties
hereto agree as follows:
1. COMPENSATION. As Compensation for the successful completion of the
Transaction, Company shall pay Xxxxx Five Hundred Thousand Dollars ($500,000.00)
(the "Transaction Fee"), subject to the terms and conditions hereof. Company
shall pay $250,000 of such Transaction Fee to Xxxxx on the Closing Date (as
defined in the Merger Agreement) upon the consummation of the Merger, and shall
pay the remaining $250,000 in 24 equal monthly installments commencing one month
after the Closing Date, except as provided in paragraph 2 below.
2. TERMINATION. The parties hereto hereby agree that if the Consulting
Agreement shall terminate for any reason, Company shall continue to pay monthly
installments of the Transaction Fee only for so long and during such time as
Company shall be obligated to pay Retainer to Xxxxx under the contemplated
Consulting Agreement. If Company's obligation to make payments of Retainer
shall at any time terminate under the Consulting Agreement, Company shall then
and thereafter have no obligation to pay any further installment of Transaction
Fee hereunder. Notwithstanding the foregoing, if, within one year after any
Sale: (a) the engagement of Xxxxx is terminated for reasons other than those set
forth in paragraph 11(c), (d) and (e) of the Consulting Agreement, or (b) Xxxxx
voluntarily terminates his engagement within 60 days after either the diminution
of his responsibilities or the date on which Xxxxxxx Xxxxxx ceases to be engaged
in the active senior management of Company, then Company shall continue to pay
installments of Transaction Fee to Xxxxx as though the Term had continued for
the lesser of one year or until the End Date. Xxxxx'x removal or resignation
from the Board as a consequence of a Sale with respect to which Xxxxx shall not
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have provided a Non-reduction Notice to Company shall not be deemed to be a
diminution of Xxxxx' responsibilities for purposes of this paragraph 2. In
addition, within 30 days following the consummation of a Sale in connection with
which Xxxxx is removed or resigns from the Board, and with respect to which
Xxxxx shall not have provided a Non-reduction Notice to Company, Company may
terminate this engagement pursuant to paragraph 2, and such termination shall
have the same effect a termination by Xxxxx under paragraph 2(b).
3. SCOPE OF SERVICES. Xxxxx will, in connection with his engagement
hereunder, be responsible for the review and analysis of appropriate and
available background information regarding AME, and for providing Company
management with legal and financial services in connection with the Transaction.
Xxxxx understands and agrees that the primary goal of the Company in connection
with his engagement hereunder is to successfully consummate the Transaction.
4. NOTICE. Any notice or other communication required or permitted to be
given to the parties hereto shall be provided in the manner and to such
addresses as may be specified for the giving of notices in the Consulting
Agreement.
5. SEVERABILITY. If any provision or any portion of any provision of
this Agreement or the application of any such provision or any portion thereof
to any person or circumstances, shall be held invalid or unenforceable, the
remaining portion of such provision and the remaining provisions of this
Agreement, or the application of such provision as is held invalid or
unenforceable to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby.
6. GOVERNING LAW; RESOLUTION OF DISPUTES.
(a) The validity, interpretation, performance and enforcement of this
Agreement shall be controlled by and construed in accordance with the laws of
the State of California without regard to conflicts of laws principles. The
parties hereto submit to the jurisdiction of the courts of California in respect
to any matter or thing arising out of this Agreement or pursuant thereto.
Notwithstanding the foregoing, any controversy or claim arising out of or
relating to this Agreement, or any breach thereof, shall be settled by the
appointment of a retired judge of the Superior or Appellate courts of California
who shall act pursuant to Section 638(1) of the California Code of Civil
Procedure "to try any and all of the issues in an action or proceeding, whether
of fact or of law, and to report a state of decision thereon." The parties
stipulate to the use of the reference procedure and agree that the Superior
Court of Los Angeles County of the State of California may issue such orders as
are necessary to implement the parties' intent that any such controversy or
claim shall be resolved through the use of the reference procedure. THE PARTIES
EACH HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY CONTROVERSY
OR CLAIM ARISING OUT OF THIS AGREEMENT OR THE BREACH HEREOF.
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(b) The parties shall be entitled to discovery as provided in the
California Code of Civil Procedure. However, the referee may regulate the
extent and scope of such discovery based upon the nature of the controversy, the
amounts involved and the expected benefits from any discovery.
(c) If the parties are unable to agree on the appointment of a retired
judge to serve as a referee, then the court shall appoint a retired judge to act
as the referee.
(d) The referee shall apply applicable substantive law and the rules
of evidence set forth in the California Evidence Code and applicable case
authority. The parties shall not be required to file formal pleadings and shall
take other steps as may be appropriate and necessary to assure that any
controversy be resolved as efficiently and expeditiously as possible.
(e) The decision reached by the referee shall be entered as a judgment
of the Superior Court appointing the referee and such decision shall be fully
appealable.
(f) All fees and expenses of the referee shall be initially borne on a
pro rata basis by the parties, but shall be recoverable by the prevailing party.
All fees and expenses of counsel to each party shall be initially borne by such
party, but the referee shall have the power to order that reasonable fees and
reasonable expenses of counsel be recovered by the prevailing party.
7. ASSIGNMENTS. Neither party shall have any right to assign this
Agreement or to delegate any rights, duties or obligations hereunder. Xxxxx
hereby expressly agrees that this Agreement is personal to him and that the
rights and interests of Xxxxx hereunder may not be assigned, nor may his
obligations and duties hereunder be delegated, except upon Xxxxx'x death, any
rights remaining shall pass to Xxxxx'x estate, beneficiaries, heirs, assigns, or
transferee, as applicable.
8. MODIFICATIONS; PRIOR AGREEMENTS. No modification, amendment,
deletion, addition or other change in this agreement, or any provision hereof,
or waiver of any right or remedy herein provided, shall be effective for any
purpose unless specifically set forth in a writing signed by both parties
hereto. No waiver of any right or remedy in respect of any occurrence or event
on one occasion shall be deemed a waiver of such right or remedy in respect of
such occurrence or event on any other occasion. The parties hereto understand
and agree that this Agreement and the Consulting Agreement are intended to
supersede and replace any and all Agreements previously entered into, by and
between Company and Xxxxx, written or oral, relating to Xxxxx'x consulting with
Company and sets forth the parties' complete understanding regarding the within
subjects. No representation has been made except as expressly set forth herein.
Paragraph headings and captions appearing herein are for convenience of
reference only, and do not constitute part of this Agreement.
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9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, including by facsimile, each of which will be deemed an original
and all of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Transaction Agreement on
the date set forth below.
Date: 1/7/97 /s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
"COMPANY"
PREMIERE RADIO NETWORKS, INC.
Date: 1/7/97 /s/ Xxxxx Xxxxxx
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By: Xxxxx Xxxxxx
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President
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