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EXHIBIT 10.13
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into July 5, 1998, by and between Capstar Broadcasting Corporation, a
Delaware corporation (together with its successors and assigns permitted
hereunder, the "Company"), D. Xxxxxxxx Xxxxxxxxx (the "Executive").
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the bests 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 September 1, 1998 and ending on December 31, 2001
(the "Employment Period"); provided, however, that commencing on December 31,
2001 and on each anniversary of such date occurring thereafter, the Employment
Period shall automatically be extended for one additional year unless at least
six months prior to the ensuing expiration date (but no more than 12 months
prior to such expiration date), 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"). Notwithstanding the foregoing, it shall be a
condition to the obligations of the parties hereunder that the merger of a
subsidiary of the Company with and into SFX Broadcasting, Inc. shall have
occurred. 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 Executive Vice President and the Chief Operating
Officer of the Company and, in so doing, shall report to the Chief Executive
Officer. The Executive shall have (A) supervision and control over, and
responsibility for, the day-to-day operations of the radio broadcasting stations
owned by the Company and its subsidiaries, (B) 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 the
Board, and (C) such other powers and duties as are reasonable and customary for
an Executive Vice President and 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 substantially all of his business time
to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's
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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 $300,000. Commencing on January 1, 1999, 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 shall be increased by an amount equal to
five percent (5%) of the then current Annual Base Salary or such greater amount
as the Board in its discretion may determine appropriate. The result of such
increase to the then current Annual Base Salary shall constitute the Executive's
Annual Base Salary commencing on the Adjustment Date then at hand and continuing
until the next Adjustment Date. 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. The Executive shall be entitled to
receive an annual performance bonus in the amount equal to $100,000 (prorated
for any partial years) or such greater amount as the Board in its discretion may
determine appropriate.
(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) Automobile Allowance. During the term of the
Executive's employment, the Executive shall be entitled to receive a monthly
automobile allowance equal to $1,200, which shall be paid monthly in accordance
with the customary practices of the Company.
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(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.
(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.
(ix) Stock Options; Warrants. In addition to any
benefits the Executive may receive pursuant to paragraph 2(b)(iii), as may be
determined appropriate by the Board, the Company may, from time to time, grant
Executive stock options (the "Executive Options") exercisable for shares of
capital stock of the Company 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. Any such Executive Options will be granted under the
Company's 1997 Stock Option Plan or a successor plan of the Company (the "Stock
Option Plan"). Contemporaneously with the execution and delivery of this
Agreement, the Company is issuing to the Executive stock purchase warrants for
the purchase of an aggregate of 200,000 shares of Class A Common Stock of the
Company ("Warrants") having an exercise price of $14.00 per share.
(x) Country Club. During the term of the Executive's
employment, the Company shall pay (1) the initiation fee (up to $25,000) for the
Executive to join a country club in the Austin, Texas area, and (2) the
Executive's regular monthly dues at such club.
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).
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(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
reasonably 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. The refusal by the Executive, for any reason or no reason, to submit to
any drug, intelligence or other form of test (including a polygraph test) shall
not constitute "Cause" herein. 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 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), expressly including any
requirement that the Executive report to any officer of the Company other than
R. Xxxxxx Xxxxx, 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
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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);
(v) the relocation or transfer of the Executive's
principal office to a location more than 20 miles from the Company's current
executive offices as such are maintained on the date hereof in the city of
Austin, Texas;
(vi) the failure of the Executive to be elected or
appointed to serve as a member of the Board (including the Board of Directors of
any successor or assign of the Company) or the removal of the Executive from the
Board without Cause; or
(vii) 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
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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 or Cause 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 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, 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.
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 in a lump
sum in cash within ten days after the Date of Termination the aggregate of the
following amounts: (1) 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"); (2) the
sum of two times the Executive's then current Annual Base Salary; and (3) 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.
(ii) At the Executive's election, the Company shall
reimburse Executive for, or pay on behalf of Executive, the cost of the monthly
premiums paid by or allocable to Executive for medical and dental insurance
coverage for Executive pursuant to the continuation coverage requirements of
Section 4980B(f) of the Internal Revenue Code of 1986, as amended (the "Code").
The consideration payable to Executive under this subsection (a)(ii) shall
continue until the earlier of (A) the date which is 18 months after the Date of
Termination, or, if shorter, until the end of the maximum required period for
which continuation coverage is required to be offered under Code Section
4980B(f)(2)(B), or (B) the date Executive has commenced new employment and has
thereby become eligible for comparable medical benefits.
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(iii) Notwithstanding the terms or conditions of any
Executive Option or any similar 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 that would otherwise vest after the Date of Termination,
excluding the Warrants, the vesting and exercisability of which shall be subject
to the express terms of the Warrants) and thereafter shall be permitted to
exercise any and all such rights until the earlier to occur of (x) the
expiration of such Executive Option, 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 (iii) 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.
(b) Death or Disability. If the Executive's employment is
terminated by reason of the Executive's death or Disability 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 aggregate of
the following amounts: (A) an amount equal to the Executive's then current
Annual Base Salary; and (B) the Accrued Obligations; and (ii) the Accrued
Investments which shall be payable in accordance with the terms and conditions
of the Investment Plans. In addition, at the option of the Executive's family,
the Company agrees to reimburse Executive's family for, or pay on behalf of
Executive's family, the cost of the monthly premiums allocable to Executive's
family for medical and dental insurance coverage provided for Executive's family
with respect to the Company's group health plan pursuant to the continuation
coverage requirements of Section 4980B(f) of the Code, for a period of 12 months
after the Date of Termination. Further, notwithstanding the terms or conditions
of any Executive Options, 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, stock options that would otherwise vest after the Date of Termination)
and thereafter his legal representatives shall be permitted to exercise any and
all such rights until the earlier to occur of (x) the expiration of such
Executive Option, stock option, stock appreciation right or similar agreement
pursuant to its terms or (y) the first anniversary of the Date of Termination.
The Company shall have no further payment obligations to the Executive or his
legal representatives under this Agreement.
(c) 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 for payment of Accrued
Obligations, Accrued Investments (which shall be payable in accordance with the
terms and conditions of the Investment Plans), and the continuance of benefits
under the Welfare Plans to 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
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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 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 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 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
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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 (i) if this
Agreement is terminated during the Employment Period by either the Company or
the Executive for any reason, the first anniversary of the Date of Termination
or (ii) if the Employment Period expires by reason of a Non-Renewal Notice, the
last day of the Employment Period. If this Agreement is terminated by the
Executive for Good Reason prior to the beginning of the Employment Period the
Executive shall not be bound by the provisions of this Section 9.
(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 none of the
following shall constitute a violation by Executive of this Section 6; (A)
ownership by the Executive of 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 sentence, (B) Executive serving in the
capacity of director of SFX Entertainment, Inc., or (C) ownership of less than a
5% voting or equity interest in Resource Media, Phoenix. As used in this Section
9(b) (and in Section 6), "Company" shall include the Company and any of its
subsidiaries.
(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
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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 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: D. Xxxxxxxx Xxxxxxxxx
Capstar Broadcasting Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
and
D. Xxxxxxxx Xxxxxxxxx
4301 Michael's Cove
Xxxxxx, Xxxxx 00000
If to the Company: Capstar Broadcasting Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, 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.
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(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. 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
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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
Austin, Texas, and that any arbitration commenced in any other venue will be
transferred to Austin, 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.
(l) The Company agrees to reimburse the Executive for the
reasonable fees and expenses of Executive's counsel incurred in connection with
the negotiation of this Agreement.
12
13
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/ D. Xxxxxxxx Xxxxxxxxx
---------------------------------
D. Xxxxxxxx Xxxxxxxxx
CAPSTAR BROADCASTING CORPORATION
/s/ R. Xxxxxx Xxxxx
---------------------------------
By: R. Xxxxxx Xxxxx
Title: President and Chief Executive Officer
