MANAGEMENT AGREEMENT
MANAGEMENT AGREEMENT, dated and effective as of August 1, 1996 by and between
Radio One, Inc., a Delaware corporation ("Manager"), and Radio One of Atlanta,
Inc., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company desires to engage Manager to provide certain management
services with respect to the business of the Company and its subsidiaries and to
provide other services and advice more fully set forth herein, and Manager is
willing to undertake these responsibilities on the terms and conditions set
forth herein;
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties to this Agreement hereby agree as follows:
1. Services of Manager. Subject to the terms and conditions of this
Agreement, Manager will provide the following services to the Company
(collectively, the "Basic Management Services"):
(a) provide advice and consultation to management concerning the
business, financial and strategic development and performance of the
Company and its subsidiaries; and
(b) provide general services, including corporate secretarial
services; maintenance of corporate records; tax counsel, employee benefits,
insurance and risk management services and such other services of such
nature as the Company and Manager may reasonably agree upon; and
(c) In addition to the services of its own staff, Manager shall select
and, with the consent of the Company, engage on behalf of the Company the
services of other professionals and consultants in connection with the
provision of the services set forth above, including management
consultants, bankers, investment bankers, underwriters, accountants,
actuaries, insurance brokers, tax advisors, appraisers, risk management
consultants and employee benefits consultants and attorneys.
2. Strategic Guidance by Manager. In connection with the planning for, or
consummation of, any transaction proposed to be entered into by the Company or
any subsidiary of the Company outside of the ordinary course of business,
including any acquisition, disposition, merger, business combination,
dissolution, liquidation, securities offering, recapitalization, restructuring,
leasing or financing (equity, debt, lease or otherwise) of or involving the
business and assets of the Company and its subsidiaries, Manager will provide to
the Company, or procure on behalf of the Company and its subsidiaries (and will
promptly notify the Company of such procurement), the following services
(collectively, the "Specialized Services"):
(a) management consulting, banking, investment banking, underwriting,
brokerage, tax, custodial, accounting, data processing, employee relations
and appraisal and recommend for retention by the Company and its
subsidiaries the services of attorneys; and
(b) such other services outside the ordinary course of business of, an
administrative or managerial nature as the Company may reasonably request.
3. Limitations on Manager's Authority. Manager will not be authorized to
manage the affairs of, act in the name of, direct the actions of employees of or
in any way bind the Company or any of its subsidiaries (unless otherwise
authorized in writing by the company to do so). The management, policies and
operations of the Company and its subsidiaries will be the responsibility of the
directors and officers of the Company and its subsidiaries acting pursuant to
and in accordance with the relevant corporate charter and by-laws, and all
decisions relating to corporate matters will be made by the directors and
officers of the Company and its subsidiaries acting pursuant to and in
accordance with the relevant corporate charter and by-laws.
4. Independent Contractor Status. Manager will render and perform the
services under this Agreement as an independent contractor in accordance with
its own standards, subject to its compliance with the provisions of this
Agreement and with all applicable laws, ordinances and regulations.
5. Availability of Employees. Manager will make available to the Company the
services of such of its employees and consultants as are necessary, in the
reasonable judgment of the Manager, to the performance from time to time of the
services described in Sections 1 and 2 of this Agreement, provided that the
inability of the Manager to make available to the Company a specific employee or
consultant of the Manager for any reason, including without limitation the death
or disability of such employee or consultant, the termination of an employment
or consulting agreement with any such person or the assignment of such employee
or consultant to other duties, shall not constitute a default hereunder.
6. Limited Liability of Manager.
(a) Neither Manager nor any director, officer, stockholder, employee
or agent of Manager makes any express or implied representation, warranty,
or guarantee to the Company, to any of its subsidiaries, to any of its
stockholders or to any third party relating to the services to be performed
by Manager pursuant to this Agreement or the quality or results of such
services.
(b) Manager shall not be liable to the Company, to any of its
subsidiaries, to any of its stockholders or to any third party for any
expense, claim, loss or damage, including, without limitation, indirect,
special, consequential or exemplary damages suffered other than by reason
of Manager's intentional failure to perform the services to be performed by
Manager pursuant to this Agreement, or by reason of action taken by Manager
which was in bad faith and in a manner not reasonably believed by Manager
to be in the best interests of the Company.
(c) Manager shall not be liable to the Company, to any of its
subsidiaries, to any of its stockholders or to any third party for the
consequences of any failure to perform or delay in performing any of its
obligations under this Agreement if that failure shall be caused by events
or circumstances beyond its control including, without limitation, by
strikes or labor disputes; provided, that Manager shall reasonably provide
prompt notice to the Company or its subsidiaries of such inability and the
reasons therefor.
7. Indemnification. The Company will indemnify Manager and each director,
officer, stockholder, employee and agent of Manager against any losses, claims,
damages or liabilities (including legal or other expenses reasonably incurred
investigating or defending against any such losses, claims, damages or
liabilities), joint or several ("Liabilities"), to which any of such persons may
become subject by reason of being a director, officer, stockholder, employee or
agent of Manager (but only to the extent that such Liabilities arise out of or
relate to and with respect to the services performed by Manager under this
Agreement); provided that the party to be indemnified acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The Company may pay expenses (including attorneys' fees) incurred by Manager
and any director, officer, stockholder, employee and agent of Manager in
defending any civil, criminal, administrative or investigative action, suit or
proceedings, in advance of the final disposition of such action, suit or
proceeding, upon receipt of an undertaking by or on behalf of a party which may
be entitled to indemnification to repay such amount if it shall be ultimately
determined that he is not entitled to be indemnified by the Company as
authorized in this Agreement.
8. Fee For Services; Expenses. Commencing on the effective date of this
Agreement and throughout the Term (as hereinafter defined), the Company will pay
to Manager a fixed fee, payable monthly, of $8,333 per month (subject to
periodic adjustments upwards or downwards, to be negotiated by the parties, such
adjustments to take into account the extent of services to be performed by
Manager in the future and to be effective prospectively, provided that such fee
shall not be reduced below $2,500 per month) for providing the Basic Management
Services. Such fees will be due and payable monthly in advance by the Company
on the first business day of each calendar month during the period in which
services are being provided unless the parties agree that the amount due will be
deferred and become due and payable at such time in the future that the parties
agree to. In addition to the management fee referred to above, the Company will
pay or reimburse Manager for all out-of-pocket costs and expenses incurred in
fulfilling its obligations as they relate to the Company under this Agreement,
including any expenses of third parties engaged by Manager; provided that
Manager will not be entitled to reimbursement for compensation of its officers,
directors, employees, consultants or stockholders who provide services under
this Agreement. The Company shall also pay to Manager such additional fees in an
amount to be agreed to by the parties from time to time, based upon fees that
would be charged for comparable services by similarly situated third party
providers, for any Specialized Services provided by Manager. The Company shall
pay or reimburse Manager for all out-of-pocket costs and expenses incurred in
providing any Specialized Services, including any expenses of third parties
engaged by Manager, provided that Manager shall not be entitled to reimbursement
for compensation of its employees, officers, directors, or stockholders who
provide services hereunder.
9. Other Relationships. Nothing contained in this Agreement will, or will be
deemed to, prohibit, restrict or limit in any manner any business or investment
activities of Manager or the directors, officers, employees or affiliates of
Manager.
10. Assignment. This Agreement and all the provisions of it will be binding
on and inure to the benefit of the parties to this Agreement and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests and obligations under this Agreement may be assigned by
either party without the prior written consent of the other party to this
Agreement,
which consent shall not be unreasonably withheld. Nothing in this Agreement,
whether expressed or implied, may be construed to give any person other than the
parties to this Agreement any legal or equitable right, remedy or claim under or
in respect of this Agreement.
11. Term; Effect of Termination.
(a) This Agreement will be effective on the date first written above
and will continue for a term ending on December 31, 2001 (the "Term") only
upon the written agreement of the parties. If the parties do not agree to
terminate the Agreement, the Agreement will renew for an additional five
years.
(b) This Agreement may not be terminated for any reason, except by the
express written consent of the parties.
(c) At the end of the Term of this Agreement, or in the event the
parties agree to an earlier termination of this Agreement (in each case,
the "Termination Date"), each party will perform its obligations under this
Agreement accrued to the Termination Date, and the Company (i) will assume,
pay and honor all obligations to third parties engaged by Manager in
connection with its services hereunder and (ii) will promptly pay Manager
all accrued fees and expenses and honor all indemnification obligations
arising hereunder. On termination, Manager will return to the Company any
corporate records of the Company and its subsidiaries.
12. Alternate Dispute Resolution/Arbitration
(a) Dispute Resolution. Any claim, dispute, difference or controversy
between the parties hereto arising out of, or relative to, this Agreement
which cannot be settled by reference to other terms of this Agreement or by
mutual understanding between the parties shall be submitted to alternative
dispute resolution as described in this Section 12.
(b) Pre-Arbitration Referral to Representatives.
(i) The dispute, claim or controversy arising out of or in
relation to this Agreement or the interpretation or breach thereof
shall be resolved in accordance with this Section 12, being subjected
first to the procedure in this subsection (b) then, if still
unresolved, to binding arbitration in accordance with subsection (c)
below. Any party may cause a proceeding to be commenced by giving
written notice to the other party that it desires to do so (the date
of such notice is hereinafter referred to as the "Notice Date"). Each
party shall thereupon prepare a written statement (the "Statement")
briefly describing such party's position on the matter in dispute. For
purposes hereof, the Company designates Xxxx Xxxxxxxxx Xxxxx and
Manager designates Xxxxxx X. Xxxxxxx (collectively, the
"Representatives") as the individuals who shall represent such
parties. The Statement shall be prepared within fifteen (15) days of
the Notice Date and given to all parties.
(ii) The Representatives shall, during the fifteen (15) day
period commencing on the fifteenth day after the Notice Date, meet and
negotiate in good faith in an attempt to resolve the matter in
dispute. If such attempt proves unsuccessful in the judgment of any
party, such party may cause all parties involved to pursue the
procedure set forth below by delivering written notice to them of such
party's desire to do so within five (5) days after the end of such
negotiation period.
(c) Arbitration. Any dispute arising out of or relating to this
Agreement or the breach, termination or validity hereof which are not
resolved by the foregoing procedure shall be finally settled by arbitration
conducted expeditiously in accordance with the Center for Public Resources
Rules for Nonadministered Arbitration of Business Disputes (the "CPR
Rules"). The Center for Public Resources shall appoint a neutral advisor
from its National CPR Panel. The arbitration shall be governed by the
United States Arbitration Act, 9 U.S.C. Sections 1-16, and judgment upon
the award rendered by the arbitrators may be entered by any court having
jurisdiction thereof. The place of arbitration shall be Washington, DC or
any other location as agreed to by the parties.
Such proceedings shall be administered by the neutral advisor in
accordance with the CPR Rules as he/she deems appropriate, however, such
proceedings shall be guided by the following agreed upon procedures:
(i) mandatory exchange of all relevant documents, to be
accomplished within forty-five (45) days of the initiation of the
procedure;
(ii) no other discovery;
(iii) hearings before the neutral advisor which shall consist of
a summary presentation by each side of not more than three hours; such
hearings to take place on one or two days at a maximum; and
(iv) decision to be rendered not more than ten (10) days
following such hearings.
Notwithstanding anything to the contrary contained herein, the
provisions of this subsection (c) shall not apply with regard to any
equitable remedies to which any party may be entitled hereunder.
The parties hereto (i) hereby irrevocably submit to the jurisdiction
of the United States District Court for the District agreed to by the
parties, for the purpose of enforcing the award or decision in any such
proceeding and (ii) hereby waive, and agree not to assert, by way of
motion, as a defense, or otherwise, in any such suit, action or proceeding,
any claim that it is not subject personally to the jurisdiction of the
above-named courts, that its property is exempt or immune from attachment
or execution, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Agreement or the subject matter hereof may not be
enforced in or by such court, and
(iii) hereby waive and agree not to seek any review by any court of any
other jurisdiction which may be called upon to grant an enforcement of the
judgment of any such court. The parties hereto hereby consent to service of
process by registered mail at the address to which notices are to be given.
Each of the Company and Manager agrees that its submission to jurisdiction
and its consent to service of process by mail is made for the express
benefit of the other parties hereto. Final judgment against the Company or
Manager in any such action, suit or proceeding may be enforced in other
jurisdictions by suit, action or proceeding on the judgment, or in any
other manner provided by or pursuant to the laws of such other
jurisdiction; provided, however, that any party may at its option bring
suit, or institute other judicial proceedings, in any state or federal
court of the United States or of any country or place where the other
parties or their assets, may be found.
The losing party shall bear all of the expenses incurred by both
parties in connection with any arbitration, including legal and other
expenses, unless the neutral advisor determines that it is appropriate for
the parties to share all or any part of the expenses incurred in connection
with the arbitration and the legal and other expenses, provided that any
costs incurred by a party to enforce an award of the neutral advisor
pursuant to the foregoing terms of this subsection (c) shall be borne by
the party resisting enforcement.
13. Notices. All notices, requests, demands and other communications provided
for by this Agreement must be in writing and will be deemed to have been given
at the time when hand delivered or mailed in any general or branch United States
post office enclosed in a registered or certified post-paid envelope, addressed
to the following addresses of the parties to this Agreement or to such changed
address as such party may have given the other party notice as provided in this
Agreement:
The Company:
Radio One of Atlanta, Inc.
5526 B&C Xxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
(000) 000-0000
Attn: Xxxx Xxxxxxxxx Xxxxx
Manager:
Radio One, Inc.
0000 Xxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
(000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
14. Miscellaneous.
(a) This Agreement, or any term or provision of it, may only be
amended, modified or waived by an instrument in writing signed by the party
against whom such amendment, modification or waiver is sought to be
enforced.
(b) The provisions of this Agreement will be construed in accordance
with and governed by the laws of the State of Georgia.
(c) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
(d) This Agreement is complete, reflects the entire agreement of the
parties with respect to its subject matter, and supersedes all previous
written or oral negotiations, commitments or writings.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Radio One, Inc.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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Radio One of Atlanta, Inc.
By: /s/ Xxxx Xxxxxxxxx Xxxxx
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Name: Xxxx Xxxxxxxxx Xxxxx
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Title: Vice President/ General Manager
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