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EXHIBIT 10.38
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made and entered into as of
_____________________, 199__, by and between Capstar Broadcasting Corporation,
a Delaware corporation (hereinafter, together with its successors, referred to
as the "Company"), and Xxxxx X. Xxxxxx, Xx. (hereinafter referred to as the
"Executive").
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of June 12,
1997, as amended (the "Purchase Agreement"), between Capstar Acquisition
Company, Inc., Xxxxxxxxx Broadcasting, Inc., a Delaware corporation
("Xxxxxxxxx"), and the selling stockholders named therein (the "Selling
Stockholders"), concurrently with the execution hereof, the Company is
acquiring all of the issued and outstanding capital stock and common stock
equivalents of Xxxxxxxxx from the Selling Stockholders (the "Acquisition").
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings assigned to them in the Purchase Agreement; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company to employ the
Executive on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definitions.
(a) "Accrued Obligations" means the sum of (i) the Executive's
Annual Base Salary (as hereinafter defined) earned or accrued through the Date
of Termination (as hereinafter defined) to the extent not theretofore paid,
(ii) reimbursement for any and all monies advanced by Executive in connection
with the Executive's employment for reasonable and necessary expenses incurred
by the Executive through the Date of Termination, and (iii) any unpaid accrued
vacation pay determined as of the Date of Termination.
(b) "Board Determination" means 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 3 and (ii) that Cause does
not exist as a basis for such termination.
(c) "Without Cause" means 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.
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(d) "Cause" means (i) a breach by the Executive of the
Executive's obligations under Section 3 (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 determined by the Board,
and which is not cured 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 the Company, as reasonably determined by a majority of the Board
after a hearing by the Board following ten days' notice to the Executive of
such hearing, (iii) willful misconduct involving an attempt to obtain personal
gain, profit or enrichment at the expense of the Company or from any
transaction in which the Executive has an interest which is adverse to the
interest of the Company, unless the Executive shall have obtained the prior
written consent of the Board, (iv) the use by the Executive of any illegal
drugs, (v) a material breach by the Executive of Section 7 or Section 9, (vi)
the conviction of the Executive of any felony (or a plea of nolo contendere
thereto), or (vii) 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 cured within 30 days after receipt of written
notice from the Company specifying such failure. The Company may suspend the
Executive's title and authority pending the hearing provided for in clause (ii)
above, and such suspension shall not constitute "Good Reason," as defined
below.
(e) "Date of Termination" means (i) if the Executive's
employment is terminated by the Company for Cause or without Cause (including
because of Disability), 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, as the case may be, and (ii) if the Executive's employment
is terminated by reason of death, the date of death of the Executive.
(f) "Disability" means 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 reasonably acceptable to the Executive.
(g) "Good Reason" means (i) without the Executive's written
consent, any reduction, approved by the Board, in the amount of the Executive's
annual salary, (ii) any significant reduction, approved by the Board without
the Executive's written consent, in the aggregate value of the Executive's
benefits under Section 4 hereof (other than annual salary) as in effect from
time to time (unless such reduction is pursuant to a general change in benefits
applicable to all similarly situated employees of the Company), (iii) any
material breach by the Company of this Agreement (other than a breach caused
solely by the Executive), or (iv) any significant reduction, approved by the
Board without the Executive's written consent, in the Executive's title, duties
or responsibilities. Notwithstanding the above, the occurrence of any of the
events described above will not constitute Good Reason unless the Executive
gives the Company written notice that such event constitutes Good Reason, and
the Company thereafter fails to cure the event within 30 days after receipt of
such notice.
(h) "Person" means any "person", within the meaning of
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 or the rules or
regulations promulgated thereunder, including a "group" as therein defined.
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(i) "Subsidiary" means, with respect to any Person, any other
Person of which such first Person owns or has the power to vote, directly or
indirectly, securities representing a majority of the votes ordinarily entitled
to be cast for the election of directors or other governing Persons.
2. Term of Employment. Subject to the terms and provisions of this
Agreement, 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 __________________,
199__ (the "Effective Date") and ending on the fifth anniversary of the
Effective Date (the "Employment Period").
3. Position and Duties.
(a) During the term of the Executive's employment, the
Executive shall serve as Chairman of the Company and, in so doing, shall report
to the President and/or Chief Executive Officer of the Company and the Board.
Subject to and in accordance with the authority and direction of the President
and/or Chief Executive Officer of the Company and the Board, the Executive
shall have supervision and control over, and responsibility for, such
management and operational functions of the Company currently assigned to such
position, and shall have such other powers and duties (including holding
officer positions with one or more subsidiaries of the Company) as may from
time to time be prescribed by the Board, so long as such powers and duties are
reasonable and customary for the Chairman of an enterprise comparable to the
Company.
(b) 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 shall devote such time to the business and affairs of
the Company as he and the Board mutually agree is necessary and appropriate
under the circumstances and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the Executive's
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 (i) serve on corporate, civic
or charitable boards or committees, (ii) deliver lectures or fulfill speaking
engagements and (iii) 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.
(c) The Executive will be based at the Company's offices in
Atlanta, Georgia (the "Primary Office") except for travel reasonably required
for Company business. Notwithstanding the foregoing, the Executive may perform
his services under this Agreement from any appropriate location; provided that
the absence of the Executive from the Primary Office does not significantly
interfere with the performance of the Executive's responsibilities as an
employee of the Company in accordance with this Agreement.
4. Compensation. During the Employment Period, the Executive shall
be compensated as follows:
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(a) 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, in an amount equal to $300,000. The Board in its discretion may at
any time increase the amount of the Annual Base Salary to such greater amount
as it may determine appropriate. However, the Company agrees that, at a
minimum, the Annual Base Salary will be increased annually by an amount equal
to the percentage increase, if any, in the Consumer Price Index (as published
by the United States Department of Labor with respect to the Atlanta, Georgia
metropolitan area) during the preceding calendar year. The term Annual Base
Salary as utilized in this Agreement shall refer to Annual Base Salary as such
may be so increased.
(b) In addition to Annual Base Salary, the Executive shall be
awarded during the term of the Executive's employment an annual performance
bonus in such amount, if any, (which amount shall in no event exceed the amount
of the Annual Base Salary) as shall be determined appropriate by the Board
pursuant to the applicable annual performance bonus plan as adopted by the
Board based upon the recommendation of the Executive and the President and/or
Chief Executive Officer of the Company.
(c) During the term of the Executive's employment, the
Executive shall be eligible to participate in the Capstar Broadcasting
Corporation 1997 Stock Option Plan.
(d) 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").
(e) 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. The Executive's coverage under
such Welfare Plans shall begin on the date of the Executive's employment with
the Company and shall not be subject to exclusions from or reductions in
coverage by reason of any preexisting condition or similar matter, except to
the extent of any exclusion from or reduction in the Executive's coverage
under any welfare benefit plan, practices, policies and programs of Xxxxxxxxx
prior to the Executive's employment by the Company as a result of any such
preexisting condition or similar matter.
(f) 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.
(g) During the term of the Executive's employment, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
business expenses incurred by the Executive in accordance with the policies,
practices and procedures of the Company.
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(h) During the term of the Executive's employment, the
Executive shall be entitled to paid vacation and paid holidays as he and the
Board mutually agree are appropriate and which do not otherwise interfere with
the Executive's discharge of his responsibilities under Section 3(a).
(i) During the term of the Executive's employment, the
Executive shall receive (A) an automobile allowance of $625 per month, (B)
payment or reimbursement of monthly dues at a country club designated by the
Executive, and (C) payment or reimbursement of monthly dues at a business
luncheon club designated by the Executive.
5. Termination.
(a) 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 means of notice (the "Notice of Termination") to the other
party hereto which specifies the effective date of the termination (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 a 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 circumstances in
enforcing the Executive's or the Company's rights hereunder.
(b) If the Executive's employment is terminated by the Company
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 retirement, as his exclusive right and
remedy in respect of such termination:
(i) the Company shall pay to the Executive (A) within
ten days after the Date of Termination, a lump sum cash payment equal to the
Accrued Obligations other than any severance payments or benefits under any
Company severance policy generally applicable to the Company's salaried
employees, (B) 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, and (C) in regular installments in accordance with the customary payroll
practices of the Company, the Executive's then current Annual Base Salary for
the two-year period commencing from the Date of Termination (the "Severance
Period").
(ii) The Executive shall continue to be covered at the
expense of the Company by the same or equivalent medical, dental, and life
insurance coverages as in effect for the Executive immediately prior to the
Date of Termination, until the earlier of (A) the expiration of the Severance
Period or (B) the date the Executive has commenced new employment and has
thereby become eligible for comparable medical benefits.
(iii) Notwithstanding the terms or conditions of any
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., stock options that
would otherwise vest after the Date of Termination) and thereafter shall be
permitted to exercise any and all such rights until the earlier to occur of (x)
the expiration of such stock option, stock
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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 5(b) 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.
(c) If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, the Company shall pay to
his legal representatives (i) within ten days after the Date of Termination, a
lump sum cash payment equal to the Accrued Obligations, and (ii) the Accrued
Investments, which amounts shall be payable in accordance with the terms and
conditions of such Investment Plans. In addition, except as otherwise provided
in Section 5(g), the members of the Executive's family shall be entitled to
continue their participation in the Company's Welfare Plans at the expense of
the Company and otherwise on the same terms as prior to the Executive's
termination for a period of 12 months after the Date of Termination. Further,
notwithstanding the terms or conditions of any 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., 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 stock option, stock appreciation right or similar agreement
pursuant to its terms or (y) the first anniversary of the Date of Termination.
(d) If the Executive's employment is terminated by reason of
the Executive's Disability (or retirement pursuant to the Company's
Board-approved retirement plan, "Retirement") during the Employment Period, the
Company shall pay to the Executive (i) within ten days after the Date of
Termination, a lump sum cash payment equal to the Accrued Obligations, (ii) the
Accrued Investments, which amounts shall be payable in accordance with the
terms and conditions of such Investment Plans, and (iii) in regular
installments in accordance with the customary payroll practices of the Company,
the Executive's then current Annual Base Salary for the six-month period
commencing from the Date of Termination. In addition, except as otherwise
provided in Section 5(g), the Executive (and members of his family) shall be
entitled to continue their participation in the Company's Welfare Plans at the
expense of the Company and otherwise on the same terms as prior to the
Executive's termination for a period of 12 months after the Date of
Termination. Further, notwithstanding the terms or conditions of any 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., stock options that would otherwise vest
after the Date of Termination) and thereafter shall be permitted to exercise
any and all such rights until the earlier to occur of (x) the expiration of
such stock option, stock appreciation right or similar agreement pursuant to
its terms or (y) the first anniversary of the Date of Termination.
(e) If the Executive's employment is terminated by the Company
for Cause or by the Executive without Good Reason (other than because of death,
Disability or Retirement) during the Employment Period, the Company shall pay
to the Executive (i) within ten days after the Date of Termination, a lump sum
cash payment equal to the Accrued Obligations and (ii) the Accrued Investments,
which amounts shall be payable in accordance with the terms and conditions of
such Investment Plan.
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(f) Upon the termination of the Executive's employment, the
Company shall have no further obligations to the Executive or his legal
representatives under this Agreement except to the extent provided for in this
Section 5, and the Executive shall have no further obligations to the Company
under this Agreement except to the extent provided for in Sections 7, 8 and 9.
(g) If pursuant to the terms and provisions of the Company's
Welfare Plans the Executive (or members of his family) are not eligible to
participate in the Company's Welfare Plans because the Executive is no longer
an employee of the Company, then the Company may fulfill its obligations under
clause (iii) of Section 5(b), Section 5(c), as applicable, by either providing
to the Executive (or his legal representatives), or reimbursing the Executive
(or his legal representatives) for the costs of, benefits substantially similar
to the benefits provided by the Company to its senior management under its
Welfare Plans as such may from time to time exist after the Date of
Termination. Nothing in this Section 5(g) shall limit the Executive's and his
family's rights and benefits under the Consolidated Omnibus Budget
Reconciliation Act of 1985.
6. 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 (except as provided in
Section 5(b)(ii)) 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 5 arising out of
the termination of the Executive's employment prior to the end of the
Employment Period; provided, however, that the Company shall be entitled to
seek damages for any breach of Sections 7, 8 or 9 or criminal misconduct.
7. Confidential Information.
(a) The Executive acknowledges that the Company and its
affiliates have trade, business and financial secrets and other confidential
and proprietary information (collectively, the "Confidential Information").
Confidential Information shall not include (i) information that is generally
known (other than as a result of a disclosure by the Executive) to other
persons or entities who can obtain economic value from its disclosure or use,
(ii) information which was obtained by the Executive on a non-confidential
basis prior to or during his employment from a source other than the Company
and its affiliates provided that such source is not bound by a confidentiality
agreement with the Company or its affiliates, and (iii) 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 (iii) above.
(b) During and following the Executive's employment by the
Company, the Executive shall hold in confidence and, other than in connection
with the performance by the Executive of his duties as an executive of the
Company, shall not use or copy or make lists of any confidential information or
proprietary data of the Company or its subsidiaries, or directly or indirectly
disclose such information or data other than to an employee of the Company or
its subsidiaries or a Person to whom disclosure is reasonably necessary or
appropriate, except to the extent authorized in writing by the Board or
required by any court or administrative agency.
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(c) The Executive further agrees not to use any Confidential
Information for the benefit of any person or entity other than the Company.
8. Surrender of Materials Upon Termination. All records, files,
documents and materials, or copies thereof, relating to the Company's and its
subsidiaries' respective businesses which the Executive shall prepare, or use,
or come into contact with, shall be and remain the sole property of the Company
or its subsidiaries, as the case may be, and shall be promptly returned by the
Executive to the Company upon termination of the Executive's employment with
the Company.
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 the later of (i)
the expiration of the Employment Period or (ii) if applicable, the first
anniversary of the Date of Termination.
(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,
equity owner, consultant, contractor, partner, joint venturer, agent, equity
owner or in any capacity whatsoever, (i) engage in the operation of any AM or
FM radio station within 50 miles of any transmission site on which the Company
or any of its direct or indirect subsidiaries operates a radio station (a
"Competing Business"), (ii) hire, attempt to hire, contact or solicit with
respect to hiring any employee of the Company or any of its direct or indirect
subsidiaries, or (iii) divert or take away any customers or suppliers of the
Company or any of its direct or indirect subsidiaries. Notwithstanding the
foregoing, the Company agrees that the Executive may own 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 clause.
(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 and its subsidiaries'
proprietary information, plans and services and to protect the other legitimate
business interests of the Company and its subsidiaries.
(e) If any court determines that any portion of this Section 9
is invalid or unenforceable, the remainder of this Section 9 shall not thereby
be affected and shall be given full effect without regard to the invalid
provisions. If any court construes any of the provisions of this Section 9, or
any part thereof, to be unreasonable because of the duration or scope of such
provision, such court shall have the power to reduce the duration or scope of
such provision and to enforce such provision as so reduced.
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10. Acceleration. If the Company fails to make a payment to the
Executive under Section 5(b)(i) or 5(d) when due, and such payment default
continues for a period of 30 days after written notice to the Company from the
Executive or his legal representatives, at the option of the Executive or his
legal representatives, the entire balance of the amount due the Executive under
Section 5(b)(i) or 5(d) shall become immediately due and payable.
11. Successors. The Company may assign its rights under this
Agreement to any successor to all or substantially all the assets of the
Company, by merger or otherwise, and may assign or encumber this Agreement and
its rights hereunder as security for indebtedness of the Company and its
respective subsidiaries; provided that the Company will require any successor
to assume and agree to perform this Agreement in the same manner and to the
same extent the Company would be required to perform if no such succession had
taken place. The rights of Executive under this Agreement may not be assigned
or encumbered by the Executive, voluntarily or involuntarily, during his
lifetime, and any such purported assignment shall be void. However, all rights
of the Executive under this Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, estates,
executors, administrators, heirs and beneficiaries. All amounts payable to the
Executive hereunder shall be paid, in the event of the Executive's death, to
the Executive's estate, heirs and representatives.
12. Enforcement. The provisions of this Agreement shall be regarded
as divisible, and if any of said provisions or any part thereof are declared
invalid or unenforceable by a court of competent jurisdiction, the validity and
enforceability of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
13. Amendment. This Agreement may not be amended or modified at any
time except by a written instrument approved by the Board and executed by the
Company and the Executive.
14. Withholding. The Company shall be entitled to withhold from
amounts to be paid to the Executive hereunder any federal, state, local, or
foreign withholding or other taxes or charges which it is from time to time
required to withhold. The Company shall be entitled to rely on an opinion of
counsel if any question as to the amount or requirement of any such withholding
shall arise.
15. 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.
16. Governing Law. This Agreement and the rights and obligations
hereunder shall be governed by and construed in accordance with the laws of the
State of Delaware, without regard to principles of conflicts of law of Delaware
or any other jurisdiction. Any dispute arising out of this Agreement (other
than any disputes relating to Sections 7 and 9 hereof) shall be determined by
arbitration in New York, New York under the rules of the American Arbitration
Association then in effect and judgment upon any award pursuant to such
arbitration, which award shall include all fees and expenses (including
attorneys' fees and expenses) reasonably incurred by the parties in connection
with such arbitration, may be enforced in any court having jurisdiction
thereof. Disputes
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relating to Sections 7 and 9 shall be determined by any court of competent
jurisdiction separately and independently of any arbitration proceeding
(whether pending or concluded) with respect to any other provision of this
Agreement. No judicial proceeding relating to Sections 7 and 9 shall be stayed
or delayed by reason of any arbitration proceeding.
17. Miscellaneous.
(a) 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: Xxxxx X. Xxxxxx, Xx.
0000 Xxxxx Xxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
If to the Company: Capstar Broadcasting Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
18. Injunctive Relief. The parties hereto acknowledge and agree that
the Company would be irreparably injured if the provisions of Section 7 and
Section 9 of this Agreement are not specifically enforced. Therefore,
notwithstanding and in addition to any rights and remedies available hereunder,
or under applicable law, the Company shall have the right to injunctive or such
other equitable relief as may be necessary specifically to enforce the
Executive's performance under such provisions. The Executive agrees to waive
the defense in suit that the Company has an adequate remedy at law.
Notwithstanding anything contained in this Section 17, the Company shall be
entitled to pursue all available remedies to recover any damages to which the
Company may be entitled.
19. No Waiver. No waiver by either party at any time of any breach
by the other party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at any time.
20. Termination of Previous Agreements. This Agreement supersedes
and replaces all of the Executive's rights and benefits under all existing
employment contracts or agreements, whether written or oral, between the
Executive and Xxxxxxxxx Broadcasting, Inc. ("Xxxxxxxxx"), including the
Employment Agreement dated May 3, 1995, between the Executive and Xxxxxxxxx
(the "Previous Agreements"). From and after the date of this Agreement, the
Previous Agreements shall cease and terminate, and thereafter none of
Xxxxxxxxx, the Executive or the Company shall have any further liability or
obligation to the other with respect to such Previous Agreements, except for
salary to the date of this Agreement, incentive bonuses for periods to the date
of this Agreement, reimbursement of expenses incurred to the date of this
Agreement and any other unpaid or unsatisfied liabilities or obligations
accruing to, or which may arise out of acts which occurred prior to, the date
of termination of the Previous Agreements.
21. Complete Agreement. The provisions of this Agreement constitute
the complete understanding and agreement between the parties with respect to
the subject matter hereof. This Agreement may be executed in two or more
counterparts.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
EXECUTIVE
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Xxxxx X. Xxxxxx, Xx.
CAPSTAR BROADCASTING CORPORATION
By:
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Name:
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Title:
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S-1
