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EXHIBIT 10.12.3
EXECUTION COPY
SEPARATION AGREEMENT
This Separation Agreement (this "Agreement") is made and entered into
as of February 16, 2000 among Xxxxx X. xx Xxxxxx ("Executive"), AMFM Inc., a
Delaware corporation (the "Company"), and AMFM Operating Inc., a Delaware
corporation ("AMFM Operating").
WHEREAS, Executive, the Company (f/k/a Chancellor Media Corporation),
and AMFM Operating (the successor in interest to a company f/k/a Chancellor
Media Corporation of Los Angeles) are parties to an Amended and Restated
Employment Agreement, dated October 1, 1998, and effective as of April 17, 1998,
as further amended by that certain Amendment to Employment Agreement, dated May
18, 1999, and effective as of March 15, 1999, pursuant to which the Company has
employed Executive as Vice Chairman of the Company and President and Chief
Executive Officer of Chancellor Radio and Outdoor Division of the Company (the
"Employment Agreement");
WHEREAS, the parties desire to terminate the Employment Agreement and
Executive's employment with the Company; and
WHEREAS, the parties desire that certain provisions of the Employment
Agreement remain in full force and effect, as set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements, promises set forth herein, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
Company, and AMFM Operating hereby agree as follows:
1. Termination. The parties hereby represent and warrant that prior to
the Termination Date, Executive's employment relationship with the Company was
pursuant to and governed solely by the Employment Agreement. Executive hereby
retires from his employment with the Company as of the date of this Agreement
which is the date Executive signs this Agreement (the "Termination Date").
Executive further agrees to and does hereby resign effective as of the
Termination Date from any other appointments or positions which he may hold with
the Company or any of its subsidiaries, including without limitation, his
position as a director and officer of the Company and each of its subsidiaries.
Executive agrees to execute all further documents which the Company may
reasonably request of him to effectuate such resignations.
2. Termination Consideration.
(a) Cash Payments. In connection with such termination of
employment and the execution of this Agreement, by the close of business on the
first business day following the seventh day after the execution and delivery of
this Agreement by the parties hereto, the Company shall cause to be paid to
Executive a one-time cash payment of $5,000,000, net of any applicable
withholding taxes required by any government to be withheld or otherwise
deducted other than any Excise Tax (as defined in the Employment Agreement) or
any income tax upon such Excise Tax (the "Termination Payment"). In addition,
the Executive shall be entitled to any
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additional payments provided for in Sections 6(a)(ii), 6(a)(iii) and 18 of the
Employment Agreement.
If a Re-employment Offer (as hereinafter defined) is made and Executive
accepts the Re-employment Offer within thirty (30) days after the date of such
offer, the Termination Payment shall be credited during Executive's employment
against any salary, bonus or other cash payments that otherwise become due and
payable to Executive under the Employment Agreement until such time as the full
amount of the Termination Payment has been applied against any such cash
payments. If no Re-employment Offer is made or Executive does not accept the
Re-employment Offer within thirty (30) days after the date of such offer,
Executive shall be entitled to retain the Termination Payment.
(b) Options. The parties hereby represent and warrant that,
except for the option agreements described on Schedule A hereto, copies of which
are attached to such exhibit (collectively, the "Option Agreements"), Executive
is not a party to any stock option, stock appreciation right or similar
agreement granting Executive the right to acquire or benefit from the
appreciation in value of capital stock of the Company or any of its
subsidiaries. Executive hereby acknowledges and agrees that any stock options
underlying the Option Agreements that are not vested as of the 5:00 p.m.,
Dallas, Texas time, on the Termination Date (collectively, the "Unvested Stock
Options") shall remain unvested until the effective time of the merger
contemplated by that certain Agreement and Plan of Merger dated October 2, 1999,
as it may be amended from time to time (the "Merger Agreement"), among Clear
Channel Communications, Inc., CCU Merger Sub, Inc. and the Company, at which
time the Unvested Stock Options shall immediately vest in full; provided,
however, that notwithstanding the foregoing, 200,000 stock options under that
certain Option Agreement dated April 9, 1999, and 160,000 stock options under
that certain Option Agreement dated April 17, 1999 shall vest on April 9, 2000
and April 17, 2000, respectively, and shall not thereafter be deemed Unvested
Stock Options. If the Merger Agreement is terminated pursuant to Section 7.1 of
the Merger Agreement, the Company shall have the right, in its sole discretion,
to make a written offer of re-employment to Executive within thirty (30) days
from the date of such termination, pursuant to which Executive would be offered
employment with the Company on the same terms and conditions, and with the same
duties, as provided in the Employment Agreement, including appointment to the
officer positions of President and Chief Executive Officer of the AMFM Radio
Group and Chief Executive Officer of AMFM Interactive Inc. (the "Re-employment
Offer"). If a Re-employment Offer is made, Executive shall have thirty (30) days
from the date of such offer in which to accept in writing the Re-employment
Offer. If Executive accepts the Re-employment Offer as provided herein, then (i)
the Option Agreements shall continue in full force and effect as if Executive's
employment with the Company had never been terminated, including the stock
option vesting schedules included therein, and (ii) any of the Unvested Stock
Options that would have vested during the time period between the Termination
Date and the date of Executive's acceptance of the Re-employment Offer as
provided herein, shall be considered as having vested on the date such Unvested
Stock Options would have vested in accordance with the terms and vesting
schedules of the applicable Option Agreements had Executive's employment not
been terminated as provided herein. If a Re-employment Offer is made and
Executive does not accept the Re-employment Offer as provided herein, all
Unvested Stock Options at the time such Re-employment Offer is not accepted as
provided herein shall be forfeited immediately and may not thereafter be
exercised by Executive. The Company acknowledges and agrees that,
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notwithstanding the terms or conditions set forth in any of the Option
Agreements, each stock option that is or becomes vested under the terms of the
Option Agreements and as provided herein shall remain exercisable by Executive
until the expiration of the applicable Option Agreement, pursuant to its terms
and without regard to any termination of employment provisions contained
therein.
3. Other Consideration - Lease; Transfer of Personal Property;
Airplane; Life Insurance. In connection with such termination of employment and
the execution of this Agreement, as soon as practicable after the execution and
delivery of this Agreement (but not later than ten (10) business days after the
date hereof), the Company shall request that SRI Michigan Avenue Venture LLC
(the "Landlord"), the landlord to that certain lease, dated April 1, 1992, by
and between the Landlord (who's predecessor in interest was Xxxx Xxxxxxx Mutual
Life Insurance Company) and the Company (f/k/a Evergreen Media Corporation of
Chicago FM, Inc.), as amended from time to time (the "Lease"), separate the
portion of the Lease, which is for certain office premises commonly known as
Suite 3522 located on a portion of the thirty-fifth (35th) floor of the Xxxx
Xxxxxxx Center (the "Premises"), and create a new lease for the Premises in
Executive's name or in the name of Executive's designee. If such separation of
the Lease is not possible, or if Landlord refuses to so separate the Lease, then
as soon as practicable, the Company shall, subject to the Landlord's consent,
sublet the Premises to Executive, or to Executive's designee, under the same
terms and conditions as in the Lease. Executive shall promptly pay all
reasonable costs and expenses incurred by the Company or any of its subsidiaries
in obtaining such sub-lease of the Premises after the execution and delivery of
the sublease. Under the sublease, all costs and expenses otherwise payable by
the Company or any of its subsidiaries under the Lease for the Premises arising
on or after March 15, 2000, shall thereafter be payable by Executive or
Executive's designees, and Executive agrees to, or to cause his designees to,
promptly reimburse (upon the execution and delivery of the sublease) the Company
or any of its subsidiaries for the portion of any deposits paid by the Company
or any of its subsidiaries allocable to the Premises. The Company shall be
responsible for any costs, liabilities or expenses relating to the Premises
accruing on or before March 15, 2000. Upon the termination of such Lease, the
Company hereby agrees to surrender all rights and interest in the Premises. At
the same time, the Company shall further transfer to Executive its full right,
title and interest in all of the furniture, equipment, fixtures and all other
personal property in the Premises.
Within ten (10) business days after the Termination Date, the Company
shall offer to sell to Executive that certain aircraft identified on Schedule B
hereto (the "Aircraft") for an amount in cash equal to the Company's reasonable
estimate of the fair market value of the Aircraft. Executive shall have five (5)
business days from the date of such offer to either accept or reject the
Company's offer to sell the Aircraft after which time the Company's offer shall
be revoked. If Executive accepts the Company's offer, the parties hereto shall
use commercially reasonable efforts to execute and deliver to each other all
necessary agreements, documents and instruments, and to consummate the sale of
the Aircraft to Executive or Executive's designee as soon as practicable, free
and clear of all liens, claims, encumbrances or other similar limitations. The
parties hereto agree to structure the sale of the Aircraft to Executive or
Executive's designee in a manner calculated to reduce any sales, use or other
transfer taxes payable in connection with such sale.
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Within ten (10) business days after the Termination Date, the Company
shall offer to transfer to Executive at a price and on terms mutually agreeable
to the Company and Executive those life insurance policies described in Section
4(g) of the Employment Agreement. If Executive accepts the Company's offer, the
parties hereto shall use commercially reasonable efforts to execute and deliver
to each other all necessary agreements, documents and instruments.
4. Taxes. The termination consideration set forth in paragraph 2 of
this Agreement, together with any cash payments to be made pursuant to Sections
6(a)(ii), 6(a)(iii) or 18 of the Employment Agreement (which sections shall
survive the execution and delivery of this Agreement as provided in paragraph
14), shall be subject to applicable federal, state and local withholding taxes.
Executive agrees that, to the extent that any individual federal or state taxes
of any kind may be due as a result of any such payment to Executive, Executive
shall be solely responsible for such taxes and will indemnify, defend, and hold
harmless the Company in the event there is any claim against the Company for
such taxes. Notwithstanding the foregoing, the Company shall reimburse Executive
for the amount of any excise tax and any income tax on such reimbursement
imposed on Executive, all as set forth in Section 18 of the Employment
Agreement.
5. General Release and Covenant Not to Xxx.
(a) EXECUTIVE, ON BEHALF OF HIMSELF, HIS FAMILY, ATTORNEYS,
HEIRS, ESTATE, AGENTS, EXECUTORS, REPRESENTATIVES, ADMINISTRATORS AND EACH OF
THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (TOGETHER THE "EXECUTIVE PARTIES"),
HEREBY GENERALLY RELEASE AND FOREVER DISCHARGE THE COMPANY, AMFM OPERATING, AND
THEIR RESPECTIVE PREDECESSORS, SUCCESSORS, ASSIGNS, PARENTS, SUBSIDIARIES AND
AFFILIATES AND EACH OF THE FOREGOING ENTITIES' RESPECTIVE PAST, PRESENT AND
FUTURE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES,
PRINCIPALS, INSURERS AND ATTORNEYS (TOGETHER THE "COMPANY PARTIES") FROM ANY AND
ALL CLAIMS, COMPLAINTS, CHARGES, DEMANDS, LIABILITIES, SUITS, DAMAGES, LOSSES,
EXPENSES, ATTORNEYS' FEES, OBLIGATIONS OR CAUSES OF ACTION (COLLECTIVELY
"CLAIMS"), KNOWN OR UNKNOWN OF ANY KIND AND EVERY NATURE WHATSOEVER, AND WHETHER
OR NOT ACCRUED OR MATURED, WHICH ANY OF THEM MAY HAVE, ARISING OUT OF OR
RELATING TO ANY TRANSACTION, DEALING, RELATIONSHIP, CONDUCT, ACT OR OMISSION, OR
ANY OTHER MATTERS OR THINGS OCCURRING OR EXISTING AT ANY TIME PRIOR TO AND
INCLUDING THE TERMINATION DATE (INCLUDING BUT NOT LIMITED TO ANY CLAIMS AGAINST
THE COMPANY PARTIES BASED ON, RELATING TO OR ARISING UNDER WRONGFUL DISCHARGE,
RETALIATION, BREACH OF CONTRACT (WHETHER ORAL OR WRITTEN), TORT, FRAUD,
DEFAMATION, NEGLIGENCE, PROMISSORY ESTOPPEL, TITLE VII OF THE CIVIL RIGHTS ACT
OF 1964, THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE AMERICANS WITH
DISABILITIES ACT, EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, OR ANY OTHER
FEDERAL, STATE OR LOCAL LAW RELATING TO EMPLOYMENT, CIVIL OR HUMAN RIGHTS, OR
DISCRIMINATION IN EMPLOYMENT (BASED ON AGE OR ANY OTHER FACTOR)) IN ALL CASES
ARISING OUT OF OR RELATING TO EXECUTIVE'S
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EMPLOYMENT BY THE COMPANY OR ANY SUBSIDIARY THEREOF OR INVESTMENT IN THE COMPANY
OR ANY SUBSIDIARY THEREOF OR HIS SERVICES AS AN OFFICER OR EMPLOYEE OF THE
COMPANY OR ANY OF ITS SUBSIDIARIES, OR OTHERWISE RELATING TO THE TERMINATION OF
SUCH EMPLOYMENT OR SERVICES; PROVIDED, HOWEVER, THAT THIS GENERAL RELEASE WILL
NOT LIMIT OR RELEASE (I) EXECUTIVE'S RIGHTS UNDER THIS AGREEMENT (INCLUDING
SECTIONS 6(a)(ii), 6(a)(iii) AND 18 OF THE EMPLOYMENT AGREEMENT AND THE OTHER
PROVISIONS OF THE EMPLOYMENT AGREEMENT THAT ARE INCORPORATED HEREIN), (II)
EXECUTIVE'S RIGHTS TO INDEMNIFICATION FROM THE COMPANY IN RESPECT OF HIS
SERVICES AS A DIRECTOR, OFFICER OR EMPLOYEE OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES AS PROVIDED BY LAW OR THE CERTIFICATES OF INCORPORATION OR BY-LAWS
(OR LIKE CONSTITUTIVE DOCUMENTS) OF THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(III) SUBJECT TO THE TERMS OF THIS AGREEMENT, EXECUTIVES' CONTRACTUAL RIGHTS
UNDER THE OPTION AGREEMENTS. EXECUTIVE, ON BEHALF OF HIMSELF AND THE EXECUTIVE
PARTIES, HEREBY COVENANTS FOREVER NOT TO ASSERT, FILE, PROSECUTE, COMMENCE,
INSTITUTE (OR SPONSOR OR PURPOSELY FACILITATE ANY PERSON IN CONNECTION WITH THE
FOREGOING), ANY COMPLAINT OR LAWSUIT OR ANY LEGAL, EQUITABLE OR ADMINISTRATIVE
PROCEEDING OF ANY NATURE, AGAINST ANY OF THE COMPANY PARTIES IN CONNECTION WITH
ANY CLAIMS RELEASED IN THIS PARAGRAPH 5, AND REPRESENTS AND WARRANTS THAT NO
OTHER PERSON OR ENTITY HAS INITIATED OR, TO THE EXTENT WITHIN HIS CONTROL, WILL
INITIATE ANY SUCH PROCEEDING ON HIS BEHALF, AND THAT IF SUCH A PROCEEDING IS
INITIATED, EXECUTIVE SHALL ACCEPT NO BENEFIT THEREFROM.
(b) THE COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS
SUBSIDIARIES AND THE COMPANY PARTIES, HEREBY GENERALLY RELEASES AND FOREVER
DISCHARGES THE EXECUTIVE PARTIES FROM ANY AND ALL CLAIMS, COMPLAINTS, CHARGES,
DEMANDS, LIABILITIES, SUITS, DAMAGES, LOSSES, EXPENSES, ATTORNEYS' FEES,
OBLIGATIONS OR CAUSES OF ACTION (COLLECTIVELY "CLAIMS"), KNOWN OR UNKNOWN OF ANY
KIND AND EVERY NATURE WHATSOEVER, AND WHETHER OR NOT ACCRUED OR MATURED, WHICH
ANY OF THEM MAY HAVE, ARISING OUT OF OR RELATING TO ANY TRANSACTION, DEALING,
RELATIONSHIP, CONDUCT, ACT OR OMISSION, OR ANY OTHER MATTERS OR THINGS OCCURRING
OR EXISTING AT ANY TIME PRIOR TO AND INCLUDING THE TERMINATION DATE (INCLUDING
BUT NOT LIMITED TO ANY CLAIMS BASED ON, RELATING TO OR ARISING UNDER BREACH OF
CONTRACT, TORT, FRAUD, DEFAMATION, NEGLIGENCE, PROMISORY ESTOPPEL, OR ANY OTHER
FEDERAL, STATE OR LOCAL LAW RELATING TO EMPLOYMENT OR DISCRIMINATION IN
EMPLOYMENT) IN ALL CASES ARISING OUT OF OR RELATING TO EXECUTIVE'S EMPLOYMENT BY
THE COMPANY OR ANY SUBSIDIARY THEREOF OR INVESTMENT IN THE COMPANY OR ANY
SUBSIDIARY THEREOF OR HIS SERVICES AS A DIRECTOR, OFFICER OR EMPLOYEE OF THE
COMPANY OR ANY OF ITS SUBSIDIARIES, OR OTHERWISE RELATING TO THE TERMINATION OF
SUCH EMPLOYMENT OR SERVICES; PROVIDED, HOWEVER, THAT SUCH GENERAL RELEASE WILL
NOT LIMIT OR RELEASE (I) THE
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COMPANY'S RIGHTS UNDER THIS AGREEMENT (INCLUDING THE PROVISIONS OF THE
EMPLOYMENT AGREEMENT THAT ARE INCORPORATED HEREIN), (II) THE COMPANY'S RIGHTS
AGAINST EXECUTIVE WITH RESPECT TO ANY BREACH OF FIDUCIARY DUTIES AS A DIRECTOR
OR ANY FRAUDULENT OR CRIMINAL ACTIVITY, OR (III) THE COMPANY'S RIGHTS UNDER THE
OPTION AGREEMENTS, EXCEPT AS MODIFIED IN THIS AGREEMENT. THE COMPANY, ON BEHALF
OF ITSELF, ITS SUBSIDIARIES AND THE COMPANY PARTIES, HEREBY COVENANTS FOREVER
NOT TO ASSERT, FILE, PROSECUTE, COMMENCE, INSTITUTE (OR SPONSOR OR PURPOSELY
FACILITATE ANY PERSON IN CONNECTION WITH THE FOREGOING), ANY COMPLAINT OR
LAWSUIT OR ANY LEGAL, EQUITABLE, ARBITRAL OR ADMINISTRATIVE PROCEEDING OF ANY
NATURE, AGAINST ANY OF THE EXECUTIVE PARTIES IN CONNECTION WITH ANY CLAIMS
RELEASED IN THIS PARAGRAPH 5, AND REPRESENTS AND WARRANTS THAT NO OTHER PERSON
OR ENTITY HAS INITIATED OR TO THE EXTENT WITHIN ITS CONTROL, WILL INITIATE ANY
SUCH PROCEEDING ON ITS BEHALF, AND THAT IF SUCH A PROCEEDING IS INITIATED, THE
COMPANY, ITS SUBSIDIARIES AND THE COMPANY PARTIES SHALL ACCEPT NO BENEFIT
THEREFROM.
6. Standstill. Executive agrees that, for a period of two years from
the date of this Agreement, neither Executive nor any of Executive's affiliates
will (or will cause or assist others to), without the prior written consent of
the Company or its Board of Directors: (i) acquire, offer to acquire, or agree
to acquire, directly or indirectly, by purchase or otherwise, any voting
securities or direct or indirect rights to acquire any voting securities of any
issued by the Company or any parent or subsidiary thereof, or of any successor,
or any assets of the Company or any parent or subsidiary or division thereof or
of any such successor, which may be outstanding on the date hereof or
subsequently issued during such two year period (except pursuant to the exercise
of stock options granted to Executive on or before the Termination Date); (ii)
make or in any way participate in, directly or indirectly, any "solicitation" of
"proxies" (as such terms are used in the rules of the Securities Exchange
Commission) to vote, or seek to advise or influence any person or entity with
respect to the voting of, any voting securities of the Company (or any parent or
subsidiary thereof); (iii) make any public announcement with respect to, or
submit a proposal for, or offer of (with or without conditions) any
extraordinary transaction involving the Company (or any parent or subsidiary
thereof) or its or their securities or assets; (iv) form, join or in any way
participate in a "group" (as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended) in connection with any of the foregoing; (v)
otherwise act, alone or in concert with others, to seek control or influence the
management, Board of Directors or policies of the Company (or any parent or
subsidiary thereof); (vi) disclose any intention, plan or arrangement
inconsistent with the foregoing; or (vii) advise, assist or encourage any other
persons in connection with any of the foregoing. Executive also agrees during
such period not to request the Company or any of its representatives, directly
or indirectly, to amend or waive any provision of this paragraph (including this
sentence) or take any action which might require the Company to make a public
announcement regarding the possibility of an extraordinary transaction involving
the Company or its securities or assets. Notwithstanding the foregoing,
Executive shall be entitled to receive and own all securities distributed in
respect of, or issued in exchange for any voting securities owned by him which
were not acquired in violation of this Agreement.
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7. No Hire Agreement. Except for Xxxxxxxx Xxxxxxx and Xxxxx Xxxxx,
effective as of the Termination Date, Executive agrees that neither he nor any
of his affiliates shall, from the date of this Agreement until 11:59 p.m. on
February 16, 2001, directly or indirectly, hire or attempt to hire any person
who at the time of such hire or attempt to hire is an employee of the Company or
any of its subsidiaries or successors or any subsidiary of a successor.
8. Cooperation. Executive agrees to cooperate with the Company as
reasonably requested by the Company by responding to questions, attending
depositions, administrative proceedings and court hearings, executing documents,
and cooperating with the Company and its accountants and legal counsel with
respect to business issues, and/or claims and litigation of which he has
personal or corporate knowledge. Executive further agrees, except as required by
subpoena or other applicable legal process (after the Company has been given
reasonable notice and opportunity to seek relief from such requirement), to
maintain, in strict confidence, any information of which he has knowledge
regarding current and/or future claims, administrative proceedings and
litigation. Executive agrees, except as required by subpoena or other applicable
legal process (after the Company has been given reasonable notice and
opportunity to seek relief from such requirement), not to communicate with any
party(ies), their legal counsel or others adverse to the Company in any such
claims, administrative proceedings or litigation except through the Company's
designated legal counsel. Executive also shall make himself available at
reasonable times and upon reasonable notice to answer questions or provide other
information within his possession and requested by the Company relating to the
Company, its subsidiaries and/or their respective operations in order to
facilitate the smooth transition of Executive's duties to his successor. The
Company shall reimburse Executive for any documented out-of-pocket expenses,
including but not limited to reasonable legal fees, reasonably incurred by
Executive in complying with this paragraph 8, and shall pay Executive a per diem
amount, calculated based on Executive's annual base salary in effect immediately
prior to the Termination Date, for any periods that Executive makes himself
available to the Company pursuant to the foregoing provisions of this paragraph
8.
9. Mail. The Company may open and answer, and authorize others to open
and answer, all mail communications, and other correspondence addressed to
Executive relating to the Company, AMFM Operating, or any of their respective
subsidiaries or to Executive's employment with the Company, AMFM Operating, or
any of their respective subsidiaries and Executive shall promptly refer to the
Company all inquiries, mail communications, and correspondence received by him
relating to the Company, AMFM Operating, or any of their respective subsidiaries
or to Executive's employment with the Company, AMFM Operating, or any of their
respective subsidiaries. If any such mail, communications or correspondence
received by the Company includes any threat of any claim against Executive
personally, the Company shall promptly notify Executive thereof. The Company
will promptly forward to Executive any of Executive's personal mail,
communications or correspondence received by the Company, unopened to the extent
it is reasonably ascertained to be of a personal nature.
10. Notices. Any notice required or permitted by this Agreement shall
be in writing, sent by registered or certified mail, return receipt requested,
addressed to the Board of Directors of the Company and AMFM Operating at the
Company's then principal office, or to Executive at the address set forth on the
signature page hereof, as the case may be, or to such other address or addresses
as any party hereto may from time to time specify in writing for the purpose in
a notice
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given to the other parties in compliance with this paragraph 10. Notices shall
be deemed given when received.
11. Certain Acknowledgements. Executive acknowledges that he is hereby
advised to consult with an attorney before signing this Agreement, and that
before entering into this Agreement that he has had the opportunity to consult
with any attorney or other advisor of his choice, and has done so, and has not
relied in connection herewith on legal counsel for the Company. Executive
acknowledges that he has entered into this Agreement of his own free will, that
no promises or representations have been made to him by any person to induce him
to enter into this Agreement other than the terms expressly set forth therein.
12. Authorization By The Company. The Company represents and warrants
to Executive that (i) it has the corporate power and authority to enter into
this Agreement and to carry out its respective obligations hereunder; (ii) the
execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Company; and (iii) this Agreement is
valid and binding obligation of the Company, enforceable against it in
accordance with its terms, except as the enforceability thereof may be limited
to bankruptcy, insolvency, reorganization, moratorium, and other laws now or
hereafter in effect relating to the enforcement of creditors' rights and
generally.
13. Prior Agreements. With the exception of certain provisions of the
Employment Agreement to which paragraph 14 of this Agreement specifically refers
and the provisions of any stock option agreement that is in effect with respect
to stock options that have been granted to Executive on or before the
Termination Date, this Agreement integrates the whole of all agreements and
understandings of any sort or character between the parties concerning the
subject matter of this Agreement and any other dealings between the parties, and
supersedes all prior negotiations, discussions, or agreements of any sort
whatsoever relating to the subject matter hereof, or any claims that might have
ever been made by one party against any opposing party to this Agreement. There
are no representations, agreements, or inducements except as set forth expressly
and specifically in this Agreement. Further, all prior employment contracts, if
any, between the parties are superseded by this Agreement. There are no
unwritten oral, or verbal understandings, agreements, or representations of any
sort whatsoever, it being stipulated that the rights of the parties shall be
governed exclusively by this Agreement.
14. Survival of other Employment Agreement and Stock Option Provisions.
The following provisions of the Employment Agreement are incorporated herein by
reference, shall survive the Termination Date and shall continue in full force
and effect: all definitions in the Employment Agreement, Sections 4(a), (d), (e)
and (f) (insofar as provisions of the foregoing are applicable with respect to
termination benefits to Executive pursuant to Sections 6(a)(ii) and 6(a)(iii) of
the Employment Agreement), 6(a)(ii), 6(a)(iii), 7(a), 7(e) (but only to the
extent applicable to Section 7(a)), 8, the first sentence of Section 12, 16, 17
and 18. Subject to the terms of paragraph 2(b) hereof, each of the Option
Agreements shall remain in full force and effect.
Except as specifically described herein, all of the parties' rights and
obligations under the Employment Agreement are extinguished upon the
effectiveness of this Agreement.
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Notwithstanding the foregoing, (i) Executive will be paid for all accrued and
unused vacation time and (ii) to the extent allowed by law, the Company will
continue to provide health coverage to Executive and his covered dependents (or,
if not so permitted, will reimburse Executive for his COBRA payments with
respect thereto) for a period of six months following the Termination Date.
15. Directors' and Officers' Liability Insurance. The Company shall
cause Executive to continue to be covered by any current policies of directors'
and officers' liability insurance under which Executive was covered at the
Termination Date, with respect to acts or omissions of Executive through the
Termination Date, copies of which have been provided to Executive, in accordance
with their terms, to the maximum extent of the coverage available for any
director or officer of the Company (provided that the Company may substitute
therefor, or allow to be substituted therefor, policies of at least the same
coverage and amounts containing terms and conditions which are, in the
aggregate, no less advantageous to the insured in any material respect).
16. Modification. This Agreement may not be modified or amended except
in writing signed by the parties. No term or condition of this Agreement will be
deemed to have been waived except in writing by the party charged with waiver. A
waiver shall operate only as to the specific term or condition waived and will
not constitute a waiver for the future or act on anything other than that which
specifically waived.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an originally, but all of which, together
shall constitute one and the same instrument. Any counterpart of this Agreement
that has attached to it separate signature pages which together contain the
signature of all parties hereto shall for all purposes be deemed a fully
executed original. Facsimile signatures shall constitute original signatures.
18. Successor and Assigns. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to the respective successors and permitted assigns. Neither this Agreement
nor any rights or obligations hereunder may be assigned by Executive, other than
by will or the laws of descent or distribution. As used in this Agreement,
"successor" shall (a) mean, for purposes of Section 6 of this Agreement, (i) any
entity which in a transaction succeeds to substantially all of the Company's
assets or which acquires substantially all of its stock so long as, in either
case, holders of a majority of the Company's voting securities immediately prior
to such transaction beneficially own a majority of the voting securities of such
entity immediately thereafter, and (ii) Clear Channel Communications, Inc., and
(b) include, without limitation, for all purposes of this Agreement, Clear
Channel Communications, Inc. Notwithstanding the foregoing sentence, if the
Merger Agreement is terminated the term "successor" shall from and after the
date of such termination no longer include Clear Channel Communications, Inc.
19. Severability. All provisions of this Agreement are intended to be
severable. In the event any provision or restriction contained herein is held to
be invalid or unenforceable in any respect, in whole or in part, such finding
shall in no way affect the validity or enforceability of any other provision of
this Agreement. The parties hereto further agree that any such invalid or
unenforceable provision shall be deemed modified so that it shall be enforced to
the greatest
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extent permissible under law, and to the extent that any court or arbitrator of
competent jurisdiction determines any restriction herein to be unreasonable in
any respect, such court or arbitrator may limit this Agreement to render it
reasonable in light of the circumstances in which it is entered into and
specifically enforce this Agreement as limited.
20. Indemnification. EXECUTIVE AGREES, WARRANTS, AND REPRESENTS TO THE
COMPANY THAT EXECUTIVE HAS FULL EXPRESS AUTHORITY TO RELEASE AND SETTLE ALL
CLAIMS THAT ARE THE SUBJECT OF PARAGRAPH 5 OF THIS AGREEMENT AND THAT EXECUTIVE
HAS NOT GIVEN OR MADE ANY ASSIGNMENT TO ANYONE, INCLUDING EXECUTIVE'S FAMILY OR
LEGAL COUNSEL, OF ANY CLAIMS AGAINST ANY PERSON OR ENTITY ASSOCIATED WITH THE
COMPANY OR ANY COMPANY PARTIES. TO THE EXTENT THAT ANY CLAIMS RELATED TO THIS
AGREEMENT MAY BE BROUGHT BY PERSONS OR ENTITIES CLAIMING BY, THROUGH OR UNDER
EXECUTIVE, HIS RESPECTIVE HEIRS, SUCCESSORS, OR ASSIGNS, THEN EXECUTIVE FURTHER
AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE COMPANY OR ANY COMPANY PARTY,
ITS AGENTS, AND ITS SUCCESSORS FROM ANY LAWSUIT OR OTHER PROCEEDING, JUDGMENT,
OR SETTLEMENT ARISING FROM SUCH CLAIMS. EXECUTIVE FURTHER HEREBY ASSIGNS TO THE
COMPANY ALL CLAIMS COVERED BY PARAGRAPH 5.
21. Injunction. Executive hereby expressly acknowledges that any breach
or threatened breach by him of any of his obligations set forth in paragraphs 5
(General Release and Covenant Not to Xxx) or 6 (Standstill) of this Agreement,
or any breach or threatened breach by Executive of Section 7(a) of the
Employment Agreement (the provisions of which shall survive, as modified herein,
the execution and delivery of this Agreement and which are incorporated herein)
may result in significant and continuing injury and irreparable harm to the
Company and AMFM Operating, the monetary value of which would be impossible to
establish. Therefore, Executive agrees that the Company and AMFM Operating shall
be entitled to injunctive relief in a court of appropriate jurisdiction with
respect to such provisions. The Company and AMFM Operating hereby expressly
acknowledge that any breach or threatened breach by either of them of any of
their obligations set forth in paragraph 5 of this Agreement may result in
significant and continuing injury and irreparable harm to Executive, the
monetary value of which would be impossible to establish. Therefore, the Company
and AMFM Operating agree that Executive shall be entitled to injunctive relief
in a court of appropriate jurisdiction with respect to such provisions.
Attorneys' fees with respect to any action seeking injunctive relief shall be
paid by the party against whom such relief is sought (if such action is
successful) or by the party seeking such relief (if such action is
unsuccessful). The parties further agree that this provision is a material
inducement to the Company to enter into this Agreement.
22. Facility of Payment. All cash payments to be made by the Company to
or on behalf of Executive hereunder shall be an obligation of and made by AMFM
Operating.
23. Choice of Law. This Agreement, including, but not limited to the
provisions of the Employment Agreement that are incorporated herein, shall be
governed by and construed in accordance with the laws of the State of Texas
(without giving effect to principles of conflict of law) and, where applicable,
the laws of the United States.
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24. Return of Documents. Executive agrees that he will return to the
Company, not later than 24 hours following the execution of this Agreement, all
originals and all copies of documents, notices, computer discs, tapes or other
tangible information of any sort which he has in his possession or under his
custody or control that is the property of the Company or any of its
subsidiaries or that relate in any manner to his duties at the Company, which is
not otherwise available to the public, and will not retain any copies of such
matter. The materials required to be returned pursuant to this paragraph 24
shall not include personal correspondence that does not relate to the Company,
its subsidiaries or any of its business.
25. No Right to Additional Compensation. Except as expressly provided
in this Agreement, neither the Company, AMFM Operating, nor any of their
predecessors, successors, assigns or affiliates shall have any further
obligation to Executive in connection with the Employment Agreement or
Executive's employment by the Company, AMFM Operating, or any of their
subsidiaries, including, but not limited to severance, compensation (including
but not limited to deferred compensation, employment contracts, stock options,
bonuses and commissions), health insurance, life insurance, disability
insurance, club dues, vehicle allowances, vacation pay, sick pay and any similar
obligations.
26. No Admission. The parties agree that by entering into this
Agreement, no party admits to having engaged in any unlawful, wrongful or
unconscionable conduct, any such conduct being expressly denied.
27. Construction. The parties agree that this Agreement was negotiated
by the parties and shall not be construed against any party. As used herein, the
term "affiliate" shall have the meaning given such term in Rule 405 promulgated
under the Securities Act of 1933.
28. Arbitration. Except with respect to the provisions of this
Agreement relating to equitable relief, the parties agree to submit to binding
arbitration administered by the American Arbitration Association ("AAA") under
its National Rules for Resolution of Employment Disputes (the "Arbitration") any
and all disputes relating to or arising from Executive's employment with the
Company, the termination thereof, the Employment Agreement or this Agreement.
The Arbitration panel shall consist of three neutral arbitrators qualified to
hear employment/labor matters. Each party shall be responsible for its
respective costs and attorneys' fees incurred in connection with the
Arbitration, and the Arbitration fees shall be divided equally between
Executive, on the one hand, and the Company, on the other hand. The decision of
the Arbitration panel shall be binding on the parties and not subject to appeal.
Except to the extent required by law, the Arbitration result shall be kept
confidential.
29. Execution. Executive acknowledges and agrees that he has 21 days to
consider this Agreement before accepting, although he may sign this Agreement
earlier. The parties agree that any change to this Agreement, whether material
or immaterial, shall not restart the running of this 21 day period, which the
parties agree began on February 3, 2000. Upon execution, Executive will have 7
days to revoke this Agreement by delivery of a written notice to AMFM Inc.,
Attn: Xxxxxxx X. Xxxxxxxx, Xx., 000 Xxxxxxxx Xxx., Xxxxx 0000, Xxxxxx, Xxxxx
00000. This Agreement shall not become effective or enforceable, and the
consideration set forth in this Agreement shall not be paid, until after the
expiration of this 7 day period without revocation by Executive. At its option,
the Company may require, as a condition of Executive receiving the
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consideration set forth in this Agreement, Executive to confirm in writing that
he has not revoked this Agreement during the 7 day period. Executive's
acceptance of any of the consideration set forth in this Agreement shall
constitute his acknowledgment that he did not revoke this Agreement during this
7 day period.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Company and AMFM Operating have caused this
Agreement to be executed to their respective corporate name by an officer
thereof thereunto duly authorized, and Executive has hereunto set his hands, as
of the day and year first above written.
AMFM INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice Chairman, President and
Chief Executive Officer
Date: February 16, 2000
---------------------------------
AMFM OPERATING INC.
By: /s/ D. Xxxxxxxx Xxxxxxxxx
-----------------------------------
Name: D. Xxxxxxxx Xxxxxxxxx
Title: Executive Vice President, Chief
Financial Officer and Treasurer
Date: February 16, 2000
---------------------------------
/s/ Xxxxx X. xx Xxxxxx
--------------------------------------
Xxxxx X. xx Xxxxxx
Address:
----------------------------
----------------------------
Date: February 16, 2000
----------------------------------
[SIGNATURE PAGE TO SEPARATION AGREEMENT]
14
SCHEDULE A
Options
Grant Date Expiration Plan ID Grant Options Option Options Options
Date Type Granted Price Outstanding Vested
--------------- -------------- ----------- --------------- ------------ --------------- --------------- ------------------------
3/1/93 3/1/03 1998CH Non-Qualified 1,275,000 $.0100 295,000 295,000 current
10/24/1994 10/24/2004 1998CH Non-Qualified 150,000 $5.3350 150,000 150,000 current
12/31/1995 12/31/2005 1998CH Non-Qualified 300,000 $10.66650 300,000 300,000 current
12/31/1996 12/31/2006 1998CH Non-Qualified 75,000 $12.2500 75,000 75,000 current
9/5/1997 9/5/2007 1998CH Non-Qualified 425,000 $23.25000 425,000 425,000 current
5/18/1998 5/18/2008 1998CH Non-Qualified 800,000 $42.1250 800,000 800,000 current
10/1/1998 10/1/2008 1998CH Non-Qualified 160,000 $41.5000 160,000 160,000 current
4/9/1999 4/9/2004 Non-Qualified 1,000,000 $46.6250 1,000,000 0 current
200,000 on 4/9/2000
200,000 on 4/9/2001
200,000 on 4/9/2002
200,000 on 4/9/2003
200,000 on 4/9/2004
4/17/1999 4/17/2009 1998CH Non-qualified 640,000 $46.6250 160,000 current
160,000 on 4/17/2000
160,000 on 4/17/2002
160,000 on 4/17/2005
--------------- -------------- ----------- --------------- ------------ --------------- --------------- ------------------------
TOTALS 4,825,000 3,845,000 2,365,000
Schedule-A
15
SCHEDULE B
Aircraft Identification
