EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into effective the 1st day of
January 1, 2001, by and between CUMULUS MEDIA INC., an Illinois corporation (the
"Company"), and Xxxx X. Xxxxxx (the "Employee").
R E C I T A L S:
The Company desires to continue to employ the Employee in the capacity
of Executive Vice President and Secretary and the Employee desires to be so
employed. Accordingly, the Company and the Employee desire to set forth in this
Agreement the terms and conditions under which the Employee is to continue to be
employed by the Company.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
General Terms of Employment
During the term of this Agreement (the "Agreement Term"), the Company
shall employ the Employee and the Employee shall serve the Company as a
full-time employee in the capacity of Executive Vice President and Secretary of
the Company. In this capacity, Employee shall report to the Chief Executive
Officer of the Company. Subject to the direction of the Chief Executive Officer,
the Employee shall be responsible for the direction of broadcast operations at
stations of the Company and its operating subsidiaries.
ARTICLE II
Compensation and Equity Incentives
2.1 Base Salary. During the first year of the Agreement Term, the
Company shall pay to the Employee a base salary of Three Hundred Seventy-Five
Thousand Dollars ($375,000) per annum (the "Base Salary") payable in equal
installments not less frequently than semi-monthly. During the second year of
the Agreement Term, the Company shall pay to the employee a Base Salary of Four
Hundred Thousand Dollars ($400,000) per annum. Thereafter, the Base Salary shall
be reviewed annually for any merit increases by the Compensation Committee (the
"Compensation Committee") of the Board of Directors of the Company (the
"Board").
2.2 Annual Bonus. In addition to the Base Salary, the Employee shall be
eligible to receive an annual bonus of up to Fifty Percent (50%) of the
Employee's Base Salary per annum (the "Potential Bonus"), based on Employee's
performance measured as follows. Employee shall be eligible to receive up to
Fifty Percent (50%) of the Potential Bonus (i.e., 25% of Base Salary), as
determined by the Chief Executive Officer based on his assessment of the
Employee's overall performance. The employee shall be eligible to receive up to
a second Fifty Percent of the Potential Bonus (i.e., 25% of Base Salary) in the
event that the Company achieves its Board-approved budget for annual Broadcast
Cash Flow, or by such other measure as Employee and the
Chief Executive Officer shall mutually agree based on the structure of other
sales targets and commissions in the Company. The annual budget for Broadcast
Cash Flow will be equitably adjusted upwards or downwards to reflect changes
from assumptions in the original budget in the timing of starting LMA's or
taking over properties, and to reflect acquisitions and LMA's not part of the
original budget. All bonus decisions shall be made first by the Chief Executive
Officer, and then shall be reviewed and approved by the Compensation Committee,
subject to any modifications that the Compensation Committee may make. Any bonus
shall be paid as promptly as practicable following the calculation of the actual
broadcast cash flow for the preceding fiscal year.
2.3 Equity Incentives. The Compensation Committee will meet and make
the following grants to Employee of time-vested options (the "Time-Vested
Options") and performance options (the "Performance Options") to purchase shares
of the Company's Class A Common Stock:
(a) Time-Vested Options. In connection with the annual grants
to be made in 2001, Time-Vested Options to purchase 150,000 shares shall be
granted to the Employee and, in connection with the annual grants to be made in
2002, Time-Vested Options to purchase an additional 150,000 shares shall be
granted to the Employee. Each grant of Time-Vested Options shall be subject to
the terms of the stock option agreement which will accompany the grant and will
be entered into between the Company and the Employee, provided, however, that
the terms contained in such stock option agreements shall be consistent with the
terms of this Agreement. Except as otherwise provided for in this Agreement, the
Time-Vested Options shall vest based on the continued employment of the Employee
in equal quarterly installments of 1/16 of the number of subject shares on the
last day of each of the 16 consecutive calendar quarters ending following the
date of grant. The exercise price of the Time-Vested Options shall be the market
price per share on the date of each grant. The Time-Vested Options shall have a
10-year term of exercise.
(b) Performance Options. In connection with the annual grants
to be made in 2001, Performance Options to purchase 100,000 shares shall be
granted to the Employee and, in connection with the annual grants to be made in
2002, Performance Options to purchase an additional 100,000 shares shall be
granted to the Employee. Each grant of Performance Options shall be subject to
the terms of the stock option agreement which will accompany the grant and will
be entered into between the Company and the Employee, provided, however, that
the terms contained in such stock option agreement shall be consistent with the
terms of this Agreement. Except as otherwise provided for in this Agreement, the
Performance Options shall vest in equal quarterly installments of 1/4 of the
number of subject shares on the last day of each of the 4 consecutive calendar
quarters ending following the date of grant, provided that (i) for such calendar
quarter the Company has achieved its Board approved expense targets (as outlined
in the Board approved budget) in the specific departmental areas of programming,
promotions and technical and (ii) the Employee has remained in the continuous
employment of the Company. Any Performance Options that have not vested pursuant
to the preceding sentence shall vest on the eighth anniversary of the date of
grant, provided the Employee has remained in the continuous employment of the
Company through such date. The exercise price of the Performance Options shall
be the market price per share on the date of each grant. The Performance Options
shall have a 10-year term of exercise.
2
ARTICLE III
Expenses and Benefits
3.1 Expenses. The Company shall pay or reimburse the Employee for all
reasonable out-of-pocket expenses incurred by the Employee in the course of
performing his duties for the Company in accordance with the Company's expense
account and reimbursement policies from time to time in effect. The Employee
shall keep accurate records and receipts of such expenditures and shall submit
such accounts and proof thereof as may from time to time be required in
accordance with such expense account or reimbursement policies that the Company
may establish for its personnel generally. In addition, the Employee shall
receive a car allowance of One Thousand Dollars ($1,000) per month.
3.2 Benefits. The Employee shall be entitled during the term hereof to
receive such incentive stock options as the Compensation Committee in its
discretion may decide. In addition, the Employee shall be entitled during the
term hereof to receive such fringe benefits and to participate in such benefit
programs as the Company may from time to time make generally available to its
senior executives of the Company including, but not limited to, any group health
and life insurance, qualified or non-qualified pension, profit sharing and
savings plans, any death benefit and disability benefit plans, any medical,
dental, health and welfare plans and any stock purchase programs that are
approved by the Compensation Committee on terms and conditions comparable to
those generally provided to other senior executives of the Company. The Employee
acknowledges that he shall have no vested rights under any such benefit programs
except as expressly provided by the terms thereof and that such programs and the
prerequisites thereof may be established or eliminated at any time at the
discretion of the Company.
ARTICLE IV
Term and Termination
4.1 Term. The Agreement Term shall commence as of the date hereof and
shall continue thereafter for a term of two (2) years unless earlier terminated
by either party in accordance with Section 4.2 below. The Agreement Term shall
automatically be renewed for consecutive renewal terms of one (1) year, unless
either party notifies the other party of its desire not to renew the Agreement
no less than sixty (60) days prior to the last day of the initial two-year term,
or no less than thirty (30) days prior to the last day of any one-year renewal
term.
4.2 Earlier Termination. Notwithstanding the term stated in Paragraph
4.1 hereof, the Employee's employment under this Agreement may be terminated
immediately upon any of the following:
(a) In the event of the Employee's death.
(b) In the event of the Employee's Disability. For purposes of
this Agreement, "Disability" shall mean the inability of the Employee to perform
his duties for the Company on account of physical or mental illness for a period
of six consecutive full months, or
3
a period of nine full months during any 12-month period in either case as a
result of a condition that is treated as a total or permanent disability under
the long term disability insurance policy of the Company that covers the
Employee. The Employee's employment hereunder shall be deemed terminated by
reason of Disability on the last day of the applicable period; provided,
however, in no event shall the Employee be terminated by reason of Disability
unless the Employee receives written notice from the Company, at least 30 days
in advance of such termination, stating its intention to terminate the Employee
for reason of Disability.
(c) By the Company forthwith upon notice to the Employee
whether or not the Employee has committed any acts constituting "Cause." For
purposes of this Agreement, "Cause" for termination of the Employee shall exist
only upon (i) the conviction of the Employee of a felony under the laws of the
United States or any state thereof, whether or not appeal is taken, (ii) a
material breach by the Employee of any agreement with the Company concerning
noncompetition or the confidentiality of proprietary information, (iii) gross
negligence of the Employee, willful misconduct of the Employee, or willful or
continued failure by the Employee (except as provided in Section 4.2(b) hereof)
to substantially perform his duties hereunder, in either case which has a
material adverse effect on the Company; or (iv) the willful fraud or material
dishonesty of the Employee in connection with his performance of duties to the
Company. However, in no event shall the Employee's employment be considered to
have been terminated for "Cause" unless and until the Employee receives a copy
of a resolution adopted by the Board finding that, in the good faith opinion of
the Board, the Employee is guilty of acts or omissions constituting Cause, which
resolution has been duly adopted by an affirmative vote of a majority of the
Board. The Employee shall have the opportunity to cure any such acts or
omissions (other than item (i) above) within 15 days of the Employee's receipt
of such resolution.
(d) By the Employee through voluntary resignation.
(e) By the Employee for "Good Reason." "Good Reason" for
purposes of this Agreement shall mean:
(i) the assignment to the Employee of duties
materially inconsistent with the Employee's position
(including status, offices, titles or reporting
relationships), authority, duties or responsibilities as
contemplated by Article I hereof, any material adverse change
in the Employee's reporting responsibilities, or any action by
the Company that results in a material diminution in such
position, authority, duties or responsibilities, but excluding
for these purposes an action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice
thereof given by the Employee;
(ii) any failure by the Company to comply in a
material respect with the compensation and benefits provisions
of Articles II or III hereof or to comply with any other
material obligation of the Company under this Agreement,
including, without limitation, any failure by the Company to
obtain an assumption of this Agreement by a successor
corporation as required under Section 8.4(a) hereof, but
excluding for these purposes a failure or action not taken in
bad faith
4
and which is remedied by the Company promptly after receipt of
notice thereof given by the Employee; or
(iii) the relocation, without the consent of the
Employee, of the Employee's office to a location more than 40
miles from Atlanta, Georgia.
ARTICLE V
Compensation upon Termination of Employment
In the event the Employee's employment is terminated during the
Agreement Term, the Employee shall be entitled to the severance payments and
benefits specified below:
5.1 Termination by Company Without Cause or by Employee for Good
Reason.
In the event Employee is terminated by the Company other than for
Cause, death or Disability, or in the event the Employee resigns with Good
Reason, the Company shall pay the Employee and provide him with the following:
(a) Accrued Rights. The Company shall pay the Employee a
lump-sum amount equal to the sum of (1) his earned but unpaid Base Salary
through the date of termination, (2) any earned but unpaid Bonus under Section
2.2 above, and (3) any business expenses or other amounts due to the Employee
from the Company as of the date of termination. In addition, the Company shall
provide to the Employee all payments, rights and benefits due as of the date of
termination under the terms of the Company's employee and fringe benefit plans
and programs in which the Employee participated during the term (together with
the lump-sum payment, the "Accrued Rights").
(b) Severance Payment. The Company shall pay the Employee the
greater of (A) the amount equal to two-thirds (2/3) of the aggregate Base Salary
payments (at the rate in effect at the time of termination) that remain payable
to the Employee from the date of termination until the expiration of the
Agreement Term, or (B) the amount equal to the annual Base Salary in effect at
the time of termination. Any amount payable pursuant to clause (A) or clause (B)
above shall be payable in four equal consecutive quarterly installments, with
the first such payment to be made within 15 days following the date of
termination.
(c) Equity Rights. As of the date of the Employee's
termination under this paragraph, Employee shall be entitled to: (1) any vested
portion of the Time-Vested Options and the Performance Options, which shall
remain exercisable for the full term thereof and (2) that portion of the
unvested Time-Vested Options which would have vested had the Employee remained
employed for one (1) year beyond the date of termination shall become
immediately and fully vested and exercisable and shall remain exercisable for
the full term thereof. The remainder of the Time-Vested Options and Performance
Options shall be forfeited.
5.2 Voluntary Resignation or Termination for Cause.
In the event the Employee's employment hereunder is terminated
hereunder because of his voluntary resignation other than for Good Reason or
because the Company has terminated the
5
Employee for Cause, the Company shall pay the Employee and provide him with any
and all Accrued Rights. In addition, any vested portion of the Time-Vested
Options and Performance Options shall remain vested and exercisable for the full
term thereof, while any unvested portion of Time-Vested Options and Performance
Options shall be forfeited.
5.3 Disability; Death.
In the event the Employee's employment hereunder is terminated by
reason of the Employee's Disability or death, the Company shall pay and provide
the Employee (or his legal representative or estate) with the following:
(a) Accrued Rights. The Company shall pay and provide to the
Employee (or his legal representative or estate) any and all Accrued Rights,
including all disability or life insurance benefits as applicable);
(b) Salary Continuation. The Company shall provide the
Employee (or his legal representative or estate) with continued payment of the
Employee's then-current Base Salary for a period of 12 months.
(c) Equity Rights. As of the date of the Employee's
termination under this paragraph, Employee shall be entitled to: (1) any vested
portion of the Time-Vested Options and Performance Options, which shall remain
exercisable for the full term thereof; (2) that portion of the unvested
Time-Vested Options which would have vested had the Employee remained employed
for one (1) year beyond the date of termination shall become immediately and
fully vested and exercisable and shall remain exercisable for the full term
thereof; and (3) the remainder of the unvested portion of the Time-Vested
Options and Performance Options shall be forfeited.
5.4 Change in Control.
In the event of a termination of employment by the Employee by
voluntary resignation or of a termination of employment by the Company other
than for Cause, which occurs within one year following a Change in Control as
defined below, then, Employee shall receive the benefits identified in 5.1 (a),
(b), and (c), and Employee shall also be entitled to any unvested portion of the
Time-Vested Options and Performance Options, which shall become immediately and
fully vested and exercisable and shall remain exercisable until the expiration
of the full term thereof. For purposes of this Agreement, a "Change in Control"
shall be deemed to have occurred by reason of:
(a) The sale, lease, transfer, conveyance, or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the assets of the
Company and its subsidiaries taken as a whole to any "person" or group of
related "persons" (a "Group") (as such terms are used in Section 13(d)(3) of the
Securities Exchange Act of 1934 (the "Exchange Act") other than Xxxxxxx X.
Xxxxxxx and Xxxxx X. Xxxxxx, Xx. (a "Principal") or (1) any stockholder
beneficially owning more than 40% of the aggregate voting power of all classes
of capital stock of the Company having the right to elect directors under
ordinary circumstances, 80% (or more) owned subsidiary, or spouse or immediate
family member (in the case of an individual) of a Principal or (2) any trust,
6
corporation, partnership, or other entity, the beneficiaries, stockholders,
partners, owners or "persons" beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or other "persons" referred to
in the immediately preceding clause (1);
(b) The adoption of a plan relating to the liquidation or
dissolution of the Company;
(c) The consummation of any transaction (including, without
limitation, any purchase, sale, acquisition, disposition, merger, or
consolidation) the result of which is that any "person" (as defined above) or
Group becomes the "beneficial owner" (as such term is defined in Rule 13d-3 and
Rule 13d-5 under the Exchange Act) of more than 35% of the aggregate voting
power of all classes of capital stock of the Company having the right to elect
directors under ordinary circumstances;
(d) 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 a majority of the combined
voting power of the then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by the holders of
securities having the right to elect directors of the Company under ordinary
circumstances immediately prior to such transaction; or
(e) The first day on which a majority of the members of the
Board are not "Continuing Directors", where "Continuing Directors" are either
(1) members of the Board on the Effective Date or (2) members of the Board
nominated for election or elected to such Board with the approval of two-thirds
of the Continuing Directors who were members of the Board at the time of such
nomination or election, or two-thirds of those directors who were previously
approved of by Continuing Directors.
ARTICLE V-A
The Employee shall not be required to seek other employment or to
reduce any severance benefit payable to him under Article V hereof, no such
severance benefit shall be reduced on account of any compensation received by
the Employee from other employment. The Company's obligation to pay severance
benefits under this Agreement shall not be reduced by any amount owed by the
Employee to the Company.
ARTICLE VI
Confidentiality and Inventions
6.1 Duty Not to Disclose. The Employee acknowledges that trade secrets
and other information, observations and data, whether written or oral, obtained
by him while employed by the Company concerning the business or affairs of the
Company that is proprietary to the Company or any of its customers or suppliers
("Confidential Information") are the property of the Company or such customers
or suppliers. Therefore, the Employee agrees that he shall not disclose to any
unauthorized person or use for his own account any Confidential Information
without the prior written consent of the Board, unless and to the extent that
the aforementioned matters become generally known to and available for use by
the public other than as a result of
7
the Employee's acts or omissions to act. The Employee shall deliver to the
Company at the termination of Employment, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computers, computer
tapes and software and other documents and data (an copies thereof) relating to
the Confidential Information, Work Product (defined in Section 6.2), or the
business of the Company which he may then possess or have under his control.
Notwithstanding this Section 6.1, Confidential Information may be disclosed
pursuant to a subpoena or valid final order of a court or administrative body of
competent jurisdiction to the extent necessary to comply therewith, in which
event the Employee shall notify the Company as promptly as practicable (and, if
possible, prior to making any disclosure) and shall seek confidential treatment
of such information. The covenants made in this Section 6.1 shall remain in
effect during the term of the Employee's employment with the Company and, in the
case of Confidential Information that constitute trade secrets under the Georgia
Uniform Trade Secrets Act, shall survive the termination of such employment for
any reason indefinitely, and, in the case of all other Confidential Information,
shall survive for a period of five (5) years after such termination.
6.2 Ownership. The Employee further agrees and acknowledges that
Confidential Information other than that of suppliers and customers, as between
the Company and the Employee, shall be deemed and at all times remain and
constitute the exclusive property of the Company, whether or not patentable or
copyrightable, and that the Company has reserved - and does hereby reserve - all
rights in and to the same for all purposes and to take all necessary and
appropriate precautions to avoid the unauthorized disclosure of any Confidential
Information.
6.3 Return of Information. In the event the Employee's employment with
the Company terminates for any reason, the Employee shall, upon request by the
Company, promptly return to the Company all property of the Company and its
affiliates in the Employee's possession or under the Employee's direct or
indirect control, including, without limitation, all Confidential Information
and all equipment, notebooks, and materials, reports, notes, contracts,
memoranda, documents, and data of the Company or any of its affiliates or
constituting or relating to the Confidential Information (and any and all copies
thereof), whether typed, printed, written, or on any source of computer media,
unless the parties agree otherwise.
6.4 Inventions. The Employee agrees that all inventions, innovations,
improvements, developments, methods, designs, analyses, drawings, reports, and
all similar or related information which relates to the Company's actual or
anticipated business, research and development or existing or future services
which are conceived, developed or made by the Employee while employed by the
Company ("Work Product") belong to the Company. The Employee will promptly
disclose such Work Product to the Board and perform all actions reasonably
requested by the Board (whether during or after employment) to establish and
confirm such ownership (including, without limitation, assignments, consents,
powers of attorney and other instruments).
8
ARTICLE VII
Noncompetition
7.1 Acknowledgement. The Employee acknowledges that in the course of
his employment with the Company (a) he will become familiar with the Company's
trade secrets and with other confidential information concerning the Company,
(b) that his services have been and will be of special, unique and extraordinary
value to the Company, and (c) that the Company would be irreparably damaged if
the Employee were to provide similar services to any person or entity competing
with the Company or engaged in a similar business in the markets served or to be
served by the Company. The Company and the Employee recognize that Employee will
be responsible for assisting in the development of the Company's strategies and
marketing programs with respect to the business of Company-owned or -operated
radio broadcasting stations as they exist on the date of the Employee's
termination of employment or radio broadcasting stations that have been
identified as potential acquisitions on the date of this Agreement and are
actually acquired by the Company (the "Business"), for supervising other
employees of the Company performing a variety of services related to the
Business, and for developing goodwill for the Company with respect to the
Business through Employee's personal contact with customers, agents, and others
having business relationships with the Company. There is therefore a danger that
this goodwill, a proprietary asset of the Company, may follow the Employee if
and when the Employee's relationship with the Company is terminated.
Accordingly, the Employee agrees and covenants as follows:
7.2 Non-Compete. Subject to Section 7.7 below, during the period of the
Employee's employment with the Company in any capacity and during the twelve
(12) months after the termination of employment (collectively, the "Noncompete
Period"), the Employee shall not complete within the listening areas (as defined
by the Arbitron Metro Survey Area) set forth on Exhibit A, within which the
Company currently conducts the Business or currently has agreements pending
regulatory approval to engage in such businesses (collectively, the
"Territory"), by acting as a manager of a business substantially similar to the
Business, a supervisor of officers or employees rendering services for such a
business, or as an advisor with respect to the conduct of such a business,
whether on Employee's own behalf or as an employee, director, or independent
contractor of any enterprise that is competing with or plans to be in
competition with the Company with respect to the Business; provided, however,
that nothing in this Agreement shall prohibit the Employee from rendering or
offering to provide services with respect to office operations, equipment or
supplies or services related to business finances or operations of a nature
provided to companies generally and not specifically to those that are
conducting the Business.
7.3 Covenant Not to Solicit Customers. Subject to Section 7.7, during
the period in which the Employee is employed by the Company (whether pursuant to
this Agreement or otherwise) and for one (1) year after the termination of
Employee's employment with the Company in all capacities, Employee will not,
directly or indirectly, on Employee's own behalf or on behalf of any other
individual or entity, solicit, call upon, divert, or actively take away, or
attempt to solicit, call upon, divert, or take away, for purposes of conducting
a business substantially similar to the Business, any individual, corporation,
partnership, or other association or entity who or that, at any time during the
period of the Employee's employment
9
with the Company, both (a) obtained or contracted services from the Company (a
"Customer") or, to the Employee's knowledge, was solicited by the Company for
business (whether or not he, she, or it became an actual customer) and (b) was
contacted by the Employee at any time during the term of the Employee's
employment by the Company. Nothing herein shall prohibit the Employee from being
a passive owner of not more than 1/2 of 1% of the outstanding stock (and/or
options to acquired stock) of any class of a corporation which is publicly
traded, so long as Employee has no active participation in the business of such
corporation. Subject to the consent of the Company, which consent will not be
unreasonably withheld, the Employee's performance of minimal consulting services
with a previous employer will not be deemed to constitute "active participation"
for purposes of the preceding sentence.
7.4 Nonsolicitation of Employees and Suppliers. During the Noncompete
Period, the Employee shall not directly or indirectly through another entity (a)
induce or attempt to induce any employee of the Company to leave the employ of
the Company or in any way interfere with the relationship between the Company
and any employee thereof, (b) hire any person who was an employee of the Company
at any time during the Agreement Term and was solicited by the Employee, or (c)
induce or attempt to induce any supplier, licensor or other non-customer
business relation of the Company to cease doing business with the Company or
interfere in any way with the relationship between any such supplier, licensor
or business relation and the Company.
7.5 Expansion of Business. In the event that, and each time during the
Employee's employment with the Company as, the Company (a) establishes the
Business hereafter in a territory other than the Territory or (b) adds a
substantially different service line to the Business, the Employee agrees to
execute and deliver an amendment to this Agreement adding the territory or
additional service line or some combination thereof upon payment to the Employee
by the Company of the sum of $100.00.
7.6 Enforcement. If, at the time of enforcement of this Article VII, a
court holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum, period,
scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area. Because the Employee's
services are unique and because the Employee has access to Confidential
Information and Work Product, the parties hereto agree that money damages would
be an inadequate remedy for any breach of this Agreement. Therefore, in the
event a breach or threatened breach of this Agreement, the Company or its
successors or assigns may, in addition to other rights and remedies existing in
their favor, apply to any court of competent jurisdiction for specific
performance and/or injunctive or other relief in order to enforce, or prevent
any violations of, the provisions hereof (without posting a bond or other
security).
7.7 Application to Company and Subsidiaries. For purposes of the
covenants made in this Article VII, references to the Company shall include all
subsidiaries.
10
ARTICLE VIII
Miscellaneous
8.1 Withholding; Method of Payment.
All amounts payable to the Employee pursuant to this Agreement are
stated before any deductions therefrom for FICA taxes, state and federal
withholding taxes and other payroll deductions required to be made by the
Company under applicable law. The Company shall have the right to rely upon an
opinion of its regular accountants or other tax advisors if any questions should
arise as to any such deductions. Any lump-sum payments provided for in this
Agreement shall be made in a cash payment, net of any required tax withholding,
no later than the fifth business day following the Employee's date of
termination or other payment date. Any payment required to be made to the
Employee under this Agreement that is not made in a timely manner shall bear
interest until the date of payment at an interest rate equal to 120% of the
monthly compounded applicable federal rate as in effect under Section 1274(d) of
the Code for the month in which payment is required to be made.
8.2 Notices.
Any notice required or permitted to be given or made by either party to
the other hereunder shall be in writing and shall be considered to be given and
received in all respects one business day after when hand delivered, when sent
by prepaid express or courier delivery service, or after deposited in the United
States mail, certified or registered mail, return receipt requested, on the date
shown on such return receipt, in each case addressed to the parties at their
respective addresses set forth opposite their signatures hereto or to such
changed address as either party shall designate by proper notice to the other.
8.3 Severability.
If for any reason one or more of the provisions of this Agreement are
deemed by a court of competent jurisdiction to be unenforceable or otherwise
void by operation of law, the remainder of this Agreement will be deemed to be
valid and enforceable and shall be construed as if such invalid or unenforceable
provision were omitted.
8.4 Assignment; Binding Affect.
(a) This Agreement shall be binding upon and shall inure to
the benefit of the Company, its successors and any person, firm, corporation or
other entity which succeeds to all or substantially all of the business, assets
or property of the Company. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business, assets or property of the Company, to
expressly assume 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 place. As used in this Agreement, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business, assets or
property as aforesaid which executes and delivers an agreement provided for in
this Section 8.4 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
11
(b) This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Employee should die while any
amounts are due and payable to him hereunder, all such amounts, unless otherwise
provided herein, shall be paid to the Employee's designated beneficiary or, if
there be no such designated beneficiary, to the legal representatives of the
Employee's estate.
8.5 Entire Agreement.
This Agreement contains the entire understanding between the parties
with respect to the matters set forth herein and therein and all prior
discussions, negotiations, agreements, correspondence and understandings between
the parties (whether oral or written) are merged herein and therein and
superseded hereby. Notwithstanding the foregoing, the parties hereto shall enter
into stock option agreements in respect of the Time-Vested Options and the
Performance Options setting forth terms and conditions consistent with the
provisions of this Agreement. No provision in this Agreement may be amended or
modified other than in writing.
8.6 Waiver of Breach.
No waiver by either party hereto of any breach of any provision of this
Agreement shall be deemed a waiver by such party of any subsequent breach.
8.7 Governing Law.
This Agreement shall be construed and interpreted according to the laws
of the State of Georgia.
8.8 Survival.
Articles V, VI and VII of this Agreement shall survive and continue in
full force in accordance with their terms notwithstanding any termination of
employment.
8.9 Counterparts.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Address for Notice: CUMULUS MEDIA INC.:
Cumulus Media Inc.
0000 Xxxxxxxx Xxxx
Building 14, 14th Floor By:/s/ Xxxxx X. Xxxxxx, Xx.
Xxxxxxx, Xxxxxxx 00000 -----------------------------
Attention: Chief Executive Officer Xxxxx X. Xxxxxx, Xx.
Chief Executive Officer
12
Address for Notice: EMPLOYEE:
Cumulus Media Inc
0000 Xxxxxxxx Xxxx
Building 14, 14th Floor /s/ Xxxx X. Xxxxxx
Xxxxxxx, Xxxxxxx 00000 ----------------------------
Attention Xxxx X. Xxxxxx Xxxx X. Xxxxxx
13
