CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made and entered into as
of December 20 , 1996, by and between Jacor Communications, Inc. a Delaware
corporation (the "Corporation") and Xxxx X. Xxxxx ("Consultant").
RECITALS
A. The Corporation and Consultant are parties to that certain Employment
Agreement dated February 20, 1996 (the "Employment Agreement"), scheduled to
terminate on September 15, 1999.
B. Concurrently with the execution of this Agreement, the parties are
amending the Employment Agreement to terminate on the date immediately preceding
the Commencement Date (defined below).
C. Consultant would not have agreed to amend the Employment Agreement but
for the Corporation's execution of this Agreement.
D. The Corporation desires to retain Consultant as a consultant and
Consultant desires to provide consulting services to the Corporation as provided
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises,
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. CONSULTING SERVICES. The Corporation hereby engages Consultant to
serve as a consultant to the Corporation, and Consultant hereby accepts such
engagement, all in accordance with and subject to the terms and conditions
contained herein. Consultant hereby agrees to consult with the Corporation
as reasonably requested on matters relating to the sports programming
broadcast on XTRA-AM, and the cross-border operations of that station and
XTRA-FM (the "Services"). Consultant shall perform the Services in
accordance with the reasonable request of the Corporation in a professional
and businesslike manner, and in accordance with all applicable laws.
Consultant shall exercise diligence and shall devote such time and effort as
is reasonably required to properly and timely perform the Services.
2. CONSULTING FEE. During the Term (defined below), the Corporation
shall compensate Consultant for the Services rendered hereunder in accordance
with the schedule attached hereto as EXHIBIT A and made a part hereof. In
addition, the Corporation shall pay Consultant for the Services rendered
hereunder, the gross sum of $26,200 per month for the
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period commencing on the Commencement Date and ending on December 31, 1996,
inclusive, payable in arrears, twice per month, and prorated based on a
30-day month. The Corporation shall also pay or reimburse Consultant for all
travel and out-of-pocket expenses reasonably incurred or paid by Consultant
in connection with the performance of the Services, upon presentation of
expense statements or receipts or such other supporting documentation as the
Corporation may reasonably require. All such expenses shall be consistent
with the Corporation's policy regarding expenses for its independent
contractors.
3. INDEPENDENT CONTRACTOR. It is expressly understood by the parties
hereto that Consultant shall be an independent contractor and not an employee of
the Corporation. Consultant shall not be an agent of the Corporation and shall
have no authority to act for or bind the Corporation and he shall not represent
such authority to third parties. The Corporation shall have no control over or
right to control or direct the business of Consultant or the manner in which
Consultant approaches and performs the Services, except as provided in Section 1
above. As an independent contractor, Consultant specifically understands that
he shall not be treated as an employee of the Corporation for purposes of
employment benefits, social security benefits and taxes, any other employment
taxes, or unemployment and worker's compensation benefits, except as otherwise
specifically provided in the Employment Agreement, as amended. Consultant shall
be liable for any and all federal and state income and employment taxes and
worker's compensation insurance. The Corporation shall treat Consultant as an
independent contractor for purposes of filing any information returns which may
be required pursuant to the Internal Revenue Code of 1986, as amended, or any
state law tax. Consultant shall indemnify, defend and hold the Corporation
harmless from and against any costs incurred by the Corporation arising directly
out of the Corporation's failure to withhold taxes from payments made to
Consultant hereunder.
4. TERM. The term of this Agreement (the "Term") shall commence on the
date immediately following the date of execution of this Agreement (the
"Commencement Date") and shall terminate January 1, 1998. The parties
acknowledge that the quality and extent of the services to be provided by
Consultant hereunder are inherently subjective, and as a result the parties
agree that under no circumstances may Corporation terminate its obligations
hereunder.
5. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if sent by registered mail as
follows:
In the case of the Corporation, if addressed to:
Jacor Communications, Inc.
1300 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx
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with a copy to:
Xxxxxxx Head & Xxxxxxx
0000 Xxxxx Xxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
In the case of Consultant, if addressed to:
Xxxx X. Xxxxx
0000 Xxx Xxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: J. Xxxxxxx X'Xxxxxx, Esq.
6. ARBITRATION. The parties agree to resolve any disputes which arise
under this Agreement, including any dispute relating to the interpretation of
this Agreement, by arbitration. The arbitration shall be final and binding upon
the parties. Except as provided by this Agreement, any arbitration shall be in
accordance with the then-current Employment Dispute Resolution procedures and
rules of the American Arbitration Association ("AAA"), and before a single
arbitrator. The arbitration shall take place in San Diego, California.
a. The parties will select an arbitrator by requesting a list of
five (5) arbitrators from the AAA. Each party will strike names
alternately from the list and the one remaining name will be the
"Arbitrator." This procedure must be completed within fifteen (15)
days of the mailing of the list by AAA.
b. Either party may bring an action in any Ohio or California court
of competent jurisdiction to compel arbitration under this Agreement,
and to enforce an arbitration award.
c. Consultant and the Corporation will share equally the fees and
costs of the Arbitrator. Each party will deposit funds or post
other appropriate security for its share of the Arbitrator's fee,
in an amount and manner determined by the Arbitrator, ten (10) days
before the first day of hearing.
7. WAIVER OF BREACH AND SEVERABILITY. The waiver by the Corporation of a
breach
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of any provision of this Agreement by Consultant shall not operate or be
construed as a waiver of any subsequent breach of Consultant. In the event
any provision of this Agreement is found to be invalid or unenforceable, it
may be severed from the Agreement and the remaining provisions of the
Agreement shall continue to be binding and effective.
8. ENTIRE AGREEMENT; CONFLICT. This Agreement contains the entire
agreement of the parties respecting, and supersedes any prior understandings and
agreements between them respecting the subject matter of this Agreement, except
as otherwise specifically provided in the Employment Agreement, as amended.
This Agreement may not be changed orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, release, abandonment or discharge is sought.
9. BINDING AGREEMENT AND GOVERNING LAW. This Agreement may not be
assigned by a party without the prior written consent of the other parties.
This Agreement shall be binding upon and shall inure to the benefit of the
parties and their permitted successors in interest and shall be construed in
accordance with and governed by the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
"CORPORATION" "CONSULTANT"
JACOR COMMUNICATIONS, INC., a
Delaware corporation
By: /S/ Xxxxxx X. Xxxxxxxx /S/ Xxxx X. Xxxxx
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Xxxxxx X. Xxxxxxxx XXXX X. XXXXX
President & Chief Operating Officer
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EXHIBIT A
PAYMENT PAYMENT DATE AMOUNT DUE
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1. Jan 15, 1997 $13,100
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2. Jan 31, 1997 $13,100
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3. Feb 15, 1997 $13,100
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4. Feb 28, 1997 $13,100
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5. Mar 15, 1997 $13,100
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6. Mar 31, 1997 $13,100
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7. Apr 15, 1997 $13,100
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8. Apr 30, 1997 $13,100
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9. May 15, 1997 $13,100
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10. May 31, 1997 $13,100
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11. Jun 15, 1997 $13,100
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12. Jun 30, 1997 $13,100
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13. Jul 15, 1997 $13,100
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14. Jul 31, 1997 $13,100
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15. Aug 15, 1997 $13,100
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16. Aug 31, 1997 $13,100
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17. Sep 15, 1997 $13,100
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18. Sep 30, 1997 $13,100
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19. Oct 15, 1997 $13,100
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20. Oct 31, 1997 $13,100
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21. Nov 15, 1997 $13,100
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22. Nov 30, 1997 $13,100
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23. Dec 15, 1997 $13,100
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24. Jan 2, 1998 $551,987.71
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Total $853,287.71
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