1
[Management Form]
EMPLOYMENT CONTINUATION AGREEMENT
This EMPLOYMENT CONTINUATION AGREEMENT (this "Agreement"), is made and
entered into on this ____ day of February, 1996, by Citicasters Inc., a Florida
corporation (the "Company"), and _________________ (the "Executive").
WITNESSETH:
WHEREAS, the Executive presently is the ____________________ of the
Company and has made and is expected to continue to make major contributions to
the profitability, growth and financial strength of the Company;
WHEREAS, the Company wishes to assure itself of both present and future
continuity of management in the event of any Change in Control (as that term is
hereafter defined);
WHEREAS, the Company wishes to ensure that certain of its executives
are not practically disabled from discharging their duties upon a Change in
Control; and
WHEREAS, although effective and binding as of the date hereof, this
Agreement shall become operative only upon the occurrence of a Change in
Control;
NOW, THEREFORE, the Company and the Executive agree as follows:
1. Operation of the Agreement.
(a) This Agreement shall be effective and binding
immediately upon its execution, but anything in this Agreement to the contrary
notwithstanding, this Agreement shall not be operative unless and until there
shall have occurred a Change in Control. For purposes of this Agreement, a
"Change in Control" shall have occurred if at any time during the Term (as that
term is hereafter defined) the Company is merged or consolidated or reorganized
into or with another corporation or other legal person and as a result of such
merger, consolidation or reorganization less than 51% of the combined voting
power of the then-outstanding securities of such corporation or person
immediately after such transaction is held in the aggregate by the holders of
then-outstanding securities entitled to vote generally in the election of
directors ("Voting Stock") of the Company immediately prior to such
transaction.
(b) Upon the occurrence of a Change of Control at any
time during the Term, this Agreement shall become immediately operative.
2
(c) The period during which this Agreement shall be in
effect (the "Term") shall commence as of the date hereof and shall expire as of
the later of (i) the close of business on June 1, 1997 or (ii) the expiration
of the Period of Employment (as that term is hereafter defined); provided,
however, that if, prior to a Change in Control, the Executive ceases for any
reason to be an elected officer or assistant officer of the Company, thereupon
the Term shall be deemed to have expired and this Agreement shall immediately
terminate and be of no further effect.
2. Employment; Period of Employment.
(a) Subject to the terms and conditions of this
Agreement, upon the occurrence of a Change in Control, the Company shall
continue the Executive in its employ and the Executive shall remain in the
employ of the Company for the period set forth in Section 2(b) below (the
"Period of Employment"). So long as the Executive remains in the employ of the
Company, the Executive shall devote substantially all of his time during normal
business hours (subject to vacations, sick leave and other absences in
accordance with the policies of the Company as in effect for executives
immediately prior to the Change in Control) to the business and affairs of the
Company.
(b) The Period of Employment shall commence on the date
of the occurrence of a Change in Control and, subject only to the provisions of
Section 4 hereof, shall continue until the earlier of (i) the Executive's
death; (ii) the Executive's attainment of age 65; or (iii) the second
anniversary of the occurrence of the Change in Control.
3. Compensation During Period of Employment.
(a) Upon the occurrence of a Change in Control, the
Executive shall receive during the Period of Employment annual base salary at a
rate not less than [specify the rate listed in Exhibit 6.6(c) to the Agreement
and Plan of Merger], payable monthly or otherwise as in effect immediately
prior to a Change in Control ("Base Pay"); provided, however, that in no event
shall any increase in the Executive's aggregate compensation or any portion
thereof in any way diminish any other obligation of the Company under this
Agreement.
(b) For his service pursuant to Section 2(a) hereof,
during the Period of Employment the Executive shall be a full participant in
any and all employee retirement income and welfare benefit policies, plans,
programs or arrangements which are made available generally to other executives
of the Company during the Period of Employment, including without limitation
any executive automobile, stock option, stock purchase, stock appreciation,
performance improvement, long-term incentive, medical or health, life
insurance, vacation, disability, salary continuation and any other retirement
income or welfare benefit policy, plan, program or
2
3
arrangement or any equivalent successor policy, plan, program or arrangement
that may now exist or be adopted hereafter by the Company or any successor
thereto (collectively, "Employee Benefits"); provided, however, that the
Executive's rights thereunder shall be governed by the terms thereof and shall
not be enlarged or limited hereunder or otherwise affected hereby.
4. Termination Following a Change in Control.
(a) In the event of the occurrence of a Change in
Control, this Agreement may be terminated by the Company during the Period of
Employment only upon the occurrence thereafter of one or more of the following
events:
(i) If the Executive shall become permanently
disabled and begins actually to receive disability benefits pursuant
to the disability plan of the Company applicable to the Executive or
any successor plan adopted prior to a Change in Control; or
(ii) For "Cause", which for purposes of this
Agreement shall mean that, prior to any termination pursuant to
Section 4(b) hereof, the Executive shall have:
(A) committed an act of fraud,
embezzlement or theft in connection with his duties or in the
course of his employment with the Company or a felony or any
crime involving moral turpitude;
(B) caused intentional wrongful
damage to the property of the Company;
(C) wrongfully disclosed secret
processes or confidential information of the Company;
(D) failed to comply with the
policies, rules, or directives of the management of the
Company;
(E) grossly or repeatedly neglected
his or her duties; or
(F) engaged in any Competitive
Activity (as that term is hereinafter defined);
and any such act shall have been harmful to the Company or would tend to bring
discredit upon the Company.
(b) In the event of the occurrence of a Change in
Control, this Agreement may be terminated by the Executive with the right to
receive benefits under Section 5 hereof, only upon the occurrence thereafter of
one or more of the following events:
3
4
(i) Any termination by the Company of the
employment of the Executive during the Period of Employment, unless
(x) Cause for termination shall exist or (y) as a result of the death
of the Executive or (z) by reason of the Executive's disability and
the actual receipt of disability benefits as provided in Section
4(a)(i) hereof; or
(ii) Termination by the Executive of his
employment with the Company during the Period of Employment and upon
the occurrence of any of the following events:
1(A) A significant adverse change in the
nature or scope of the authorities, powers, functions,
responsibilities or duties in respect of the Company which the
Executive had immediately prior to the Change in Control;
(B) The liquidation, dissolution,
merger, consolidation or reorganization of the Company or
transfer of all or a significant portion of its business
and/or assets unless the successor or successors (by
liquidation, merger, consolidation, reorganization or
otherwise) to which all or a significant portion of its
business and/or assets have been transferred (directly or by
operation of law) shall have assumed all duties and
obligations of the Company under this Agreement pursuant to
Section 7 hereof; or
(C) Without limiting the generality or
effect of the foregoing, any material breach of this Agreement
by the Company.
(c) A termination by the Company pursuant to Section
4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not
affect any rights which the Executive may have pursuant to any other agreement,
policy, plan, program or arrangement of the Company providing Employee
Benefits, which rights shall be governed by the terms thereof. If this
Agreement or the employment of the Executive is terminated under circumstances
in which the Executive is not entitled to any payments under Sections 3 or 5
hereof, the Executive shall have no further obligation or liability to the
Company hereunder with respect to his prior or any future employment by the
Company.
5. Severance Compensation. If, following the occurrence of a
Change in Control, the Company shall terminate the Executive's employment other
than pursuant to Section 4(a) hereof, or if the Executive shall terminate his
employment pursuant to Section 4(b) hereof, the Company shall pay or cause to
be paid to the Executive, the Base Pay which the Executive would have received
pursuant to
____________________
1 To be included only in Agreements with general managers.
4
5
this Agreement for the remainder of the Period of Employment had his employment
with the Company continued for such period, provided however that the Company's
obligation to make any payment hereunder shall terminate if Executive engages
in any Competitive Activity.
6. No Mitigation Obligation. The parties thereto expressly agree
that the Executive shall not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment or otherwise, nor
shall any profits, income, earnings or other benefits from any source
whatsoever create any mitigation, offset, reduction or any other obligation on
the part of the Executive hereunder or otherwise, except as expressly provided
in Section 5 hereof.
7. Successors and Binding Agreement.
(a) The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation, reorganization or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement and each of the
Company's obligations hereunder. This Agreement shall be binding upon and
inure to the benefit of the Company and any successor of or to the Company,
including without limitation any persons acquiring directly or indirectly all
or substantially all of the business and/or assets of the Company whether by
purchase, merger, consolidation, reorganization or otherwise (and such
successor shall thereafter be deemed the "Company" for the purposes of this
Agreement), but shall not otherwise be assignable or delegable by the Company.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees and/or legatees.
(c) This Agreement is personal in nature and neither of
the parties hereto shall, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereunder except as
expressly provided in Section 7(a) hereof. Without limiting the generality of
the foregoing, the Executive's right to receive payments hereunder shall not be
assignable or transferable, whether by pledge, creation of a security interest
or otherwise, other than by a transfer by his will or by the laws of descent
and distribution and, in the event of any attempted assignment or transfer
contrary to this Section 7(c), the Company shall have no liability to pay to
the purported assignee or transferee any amount so attempted to be assigned or
transferred.
8. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by
5
6
the laws of the State of Ohio, without giving effect to the principles of
conflict of laws of such State.
9. Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto or
compliance with any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, expressed or implied with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
10. Validity. The invalidity or unenforceability of any provision
of this Agreements shall not affect the validity or enforceability of any other
provision of this Agreement which shall remain in full force and effect.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same agreement.
12. Employment Rights. Nothing expressed or implied in this
Agreement shall create any right or duty on the part of the Company or the
Executive to have the Executive continue as an officer or assistant officer of
the Company or to remain in the employment of the Company prior to any Change
in Control.
13. Withholding of Taxes. The Company may withhold from any
amounts payable under this Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or government regulation or ruling.
14. Competitive Activity. For the purpose of this Agreement, the
term "Competitive Activity shall mean:
(i) rendering any services as an officer, director, employee,
agent, consultant or in any other capacity to, or own any interest
(other than an interest of less than five percent (5%) of the stock of
a publicly held company), as an individual owner, stockholder, partner
or in any other manner in any person, firm, corporation, partnership
or other entity which is a Competitive Business; or
(ii) soliciting or otherwise attempting to employ or engage
any current or future employee of the Company or any successor for
employment or association in any Competitive Business or otherwise
offer any inducement to any current or future employee of the Company
or any
6
7
successor to leave the employ or association of the Company or any
successor.
For purposes of this Agreement, Competitive Business shall mean any
business operation located in the viewer or listener market area in which the
Executive performed services for the Company and which engages, as all or a
part of its business, in radio or television broadcasting.
15. Limitation on Payments and Benefits. Notwithstanding any
provision of this Agreement to the contrary, if any amount or benefit to be
paid or provided under this Agreement would be an "Excess Parachute Payment,"
within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code"), or any successor provision thereto, but for the
application of this sentence, then the payments and benefits to be paid or
provided under this Agreement shall be reduced to the minimum extent necessary
(but in no event to less than zero) so that no portion of any such payment or
benefit, as so reduced, constitutes an Excess Parachute Payment. The
determination of whether any reduction in such payments or benefits to be
provided under this Agreement or otherwise is required pursuant to the
preceding sentence shall be made at the expense of the Company, if requested by
the Executive or the Company, by the Company's independent accountants. The
fact that the Executive's right to payments or benefits may be reduced by
reason of the limitations contained in this Section 15 shall not of itself
limit or otherwise affect any other rights of the Executive other than pursuant
to this Agreement. In the event that any payment or benefit intended to be
provided under this Agreement or otherwise is required to be reduced pursuant
to this Section 15, the Executive shall be entitled to designate the payments
and/or benefits to be so reduced in order to give effect to this Section 15.
The Company shall provide the Executive with all information reasonably
requested by the Executive to permit the Executive to make such designation.
In the event that the Executive fails to make such designation within 10
business days of the date the Executive's employment with the Company
terminates, the Company may effect such reduction in any manner it deems
appropriate.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first set forth above.
_____________________________
[EXECUTIVE]
CITICASTERS INC.
By:________________________
Its:_______________________
7
