EMPLOYMENT SEPARATION AGREEMENT
Exhibit 10.1
This Employment Separation Agreement (“Agreement”) is made and entered into as of the
13th day of July 2009, by Xxxxxx X. Xxxxx, Employee ID No.: 1036548 (“Executive”), and
CC Media Holdings, Inc. (the “Company”).
WHEREAS, the Executive’s position as the Company’s Executive Vice President, Chief Legal
Officer and Secretary will end, effective January 8, 2010, and the Company wants to provide an
incentive to Executive to remain an Executive of the Company in his current position through
January 8, 2010;
THEREFORE, in consideration of the mutual promises and covenants set forth herein, Executive
and the Company agree as follows:
1. Termination Date. The Company desires to continue the employment of Executive until
January 8, 2010 (the “Termination Date”) and agrees that Executive shall retain his current
positions of Executive Vice President, Chief Legal Officer and Secretary until the Termination
Date. Executive shall be compensated during such employment at the compensation level in existence
on the date of this Agreement.
2. Consideration for Agreement from Company.
2.1 Bonus Payments. The Company shall pay and Executive shall receive bonus payments in the
total sum of Nine Hundred Eighty Nine Thousand Two Hundred Fifty and No/100 Dollars ($989,250.00),
less applicable federal and state withholding and all other ordinary payroll deductions. Such
payments will be made pursuant to the Payment Schedule
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attached hereto as Schedule A, and
are subject to the terms and conditions set forth in Schedule A.
2.2 Regular Compensation. The amount described in Section 2.1 is in addition to and does not
affect the monthly salary and benefits Executive is entitled to while employed with the Company.
2.3 2009 Annual Incentive Plan. In addition to the payments listed in Section 2.1, Executive
will continue to be eligible to receive a performance bonus under the Company’s Annual Incentive
Plan, to be paid no later than March 15, 2010, the details of which are set forth in Schedule
B attached to this Agreement.
2.4 Consulting Agreement. In further consideration for the Agreement, Executive agrees to
serve as a consultant to the Company for a period commencing on the day following the Termination
Date and expiring on May 31, 2011 (“Consulting Period”), the details of which are set forth in
Schedule C attached to this Agreement. For a period of no less than 90 days following the
Termination Date set forth in the Agreement (the “Transition Period”), Executive will be available
on a reasonable basis, for up to ten hours per week, to provide such services at no additional
compensation. After the completion of the Transition Period and continuing thereafter throughout
the remaining term of the Consulting Period, Executive will be available to the Company on an as
needed basis, for up to five hours per week and will be entitled to be paid $200.00 per hour for
hours worked in excess of five hours per week.
3. Withholding. Executive acknowledges and agrees he is responsible for satisfying any and all tax
obligations of the Executive that arise as a result of any compensation paid to Executive during
his employment or in connection with this Agreement, including, without limitation, the payments
listed in Section 2. The Company is authorized to deduct and withhold
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from any compensation or
benefits payable hereunder amounts sufficient to satisfy applicable income and employment tax
amounts the Company is required to withhold by applicable law, regulation or ruling.
4. Executive’s Release of Claims.
4.1 Executive affirms he has not filed, caused to be filed, and/or is not presently a party to
any claim, complaint, or action against Company in any forum or form. Executive furthermore
affirms he has no known workplace injuries or occupational diseases.
4.2 Save and except for Executive’s right to indemnification as an officer and employee of the
Company, rights as a shareholder of Company, or rights under health, benefit or insurance plans or
policies as an employee of Company, Executive hereby irrevocably and unconditionally releases and
forever discharges the Company from any and all claims, demands, causes of action, and liabilities
of any nature, both past and present, known and unknown (“Claims”), resulting from any act or
omission of any kind occurring on or before the date of execution of this Agreement that arise
under contract or common law, or any federal, state or local law, regulation or ordinance.
Executive understands and agrees Executive’s release of claims includes, but is not limited to, the
following: all claims, demands, causes of action and liabilities for past or future loss of pay or
benefits, expenses, damages for pain and suffering, punitive damages, compensatory damages,
attorney’s fees, interest, court costs, physical or mental injury, damage to reputation, and any
other injury, loss, damage or expense or equitable remedy of any kind whatsoever.
4.3 Executive additionally hereby irrevocably and unconditionally releases and forever
discharges the Company from any and all claims, demands, causes of action and liabilities arising
out of or in any way connected with, directly or indirectly, Executive’s
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employment with the
Company or any incident thereof, including, without limitation, his treatment by the Company or any
other person, the terms and conditions of his employment, and any and all possible state or federal
statutory and/or common law claims, including but not limited to:
(a) All claims which he might have arising under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e, et seq.; The Civil Rights Act, 42 U.S.C. § 1981 and §
1988; Executive Retirement Income Security Act, as amended, 29 U.S.C. § 1001, et seq.;
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.; The Age Discrimination
in Employment Act, 29 U.S.C. § 621 et seq.; The Older Worker Benefit Protection Act of 1990;
The Immigration Reform and Control Act, as amended; and/or The Occupational Safety and
Health Act, as amended.;
(b) All contractual claims for any wages or other employment benefits owed as a result
of Executive’s separation from the Company, and any claims arising from tax obligations of
Executive (including, without limitation, obligations under Internal Revenue Code § 409A, if
any) relating to compensation paid to Executive during
employment or in connection with this Agreement, including, without limitation, any
severance;
(c) All claims arising under the Civil Rights Act of 1991, 42 U.S.C. § 1981a; and,
(d) All other claims, whether based on contract, tort (personal injury), or statute,
arising from Executive’s employment, the separation from that employment, or any
investigation and/or interview conducted by or on behalf of the Company.
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4.4 Executive agrees, promises and represents that his receipt and acceptance of the Section
2.1 payments made after the Termination Date will constitute, in addition to the releases contained
in this Agreement, Executive’s release of all know and unknown claims, promises, causes of action
or similar rights of any type that may have arisen since the date this Agreement was executed
through the date of the last payment received under Section 2.1.
5. D&O Insurance and Indemnification. The Company acknowledges and accepts its continuing
obligation of defense and indemnity under Delaware law applicable to acts of Executive related to
his work as an officer, director, employee, consultant and agent of the Company and agrees to
indemnify Executive in accordance with the provisions of Schedule D attached to this
Agreement.
6. Other Understandings, Agreements, and Representations.
6.1 Successors and Assigns. Executive agrees this Agreement binds him and also binds his
spouse, children, heirs, executors, administrators, assigns, agents, partners, successors in
interest, and all other persons and entities in privity with him. Executive also understands this
Agreement will inure to the benefit of the Company and its representatives, executors, successors,
and assigns.
6.2 Confidentiality. Executive promises and represents he will not disclose, disseminate, or
publicize, or cause or permit to be disclosed, disseminated, or publicized, any of the terms of
this Agreement, except (1) to the extent necessary to report income to appropriate taxing
authorities; (2) in response to an order or subpoena of a court of competent jurisdiction; (3) in
response to any subpoena issued by a state or federal governmental agency; and/or (4) as required
by law.
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6.3 Nondisparagement. Executive promises and represents he will not make or cause to be made
any derogatory, negative or disparaging statements, either written or verbal, about the Company.
6.4 Protected Information. During the course of employment, Executive has been given access
to the confidential and proprietary information of the Company. This confidential information
includes, but is not limited to, the Company’s human resources and Executive-related information,
strategic business plans, budgets, financial performance and financial statements, operational
information, business and employment contracts, litigation information, compensation information,
and other information that the Company treats as confidential or proprietary. Executive agrees he
will not disclose or use the Company’s confidential or proprietary information. Executive
understands that the Company may seek from a court of competent jurisdiction an injunction to
prohibit such disclosure.
6.5 Nonsolicitation. Executive agrees he will not during the Consulting Period directly or
indirectly: (i) solicit, recruit or otherwise induce or attempt to induce any employees to leave
the employment of the Company or its affiliates; (ii) interfere with or disrupt the Company’s
relationship with any of its employees, contractors, or accounts; (iii) induce or attempt to induce
any person or entity which is an advertiser, sponsor, client, or contractor with the Company to
cease performing services for or doing business with the Company; (iv) induce or attempt to induce
any person or entity which is an advertiser, sponsor, client, or contractor with the Company to
perform services for, advertise with, or sponsor any other broadcast program or station or
communication company; or (v) influence or attempt to influence any person or persons, firm,
association, syndicate, partnership, company, corporation or other entity that is a contracting
party with the Company to terminate any written or oral agreement with the
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Company, or enter into
any agreement with any such person or entity which would have an adverse effect on the Company.
6.6 Return of Company Property. On or before the Termination Date, Executive shall return to
the Company all property belonging to the Company the Executive possesses or has possessed but has
provided to a third party, including but not limited to, all equipment or other materials and all
originals and copies of Company documents, files, memoranda, notes, computer-readable information
(maintained on disk or in any other form) and video or tape recordings of any kind other than
personal materials relating solely to the Executive. Executive warrants and represents Executive
has not retained, distributed or caused to be distributed, and shall not retain, distribute or
cause to be distributed, any original or duplicates of any such Company property specified in this
Section.
6.7 Entire Agreement. This Agreement and the attached Schedules contain the entire
understanding between Executive and the Company and supersede all prior agreements and
understandings relating to the subject matter of this Agreement. This Agreement shall not be
modified, amended, or terminated unless such modification, amendment, or termination is executed in
writing by Executive and an authorized representative of the Company.
6.8 Dispute Resolution. Any disputes that relate in any way to the provisions of this
Agreement shall be resolved by binding arbitration. The arbitration shall proceed in accordance
with the National Rules for Resolution of Employment Disputes of the American Arbitration
Association (“AAA”) in effect at the time the claim or dispute arose, unless other rules are agreed
upon by the parties. Unless otherwise agreed to by the parties in writing, the arbitration shall be
conducted by one arbitrator who is a member of the AAA or any comparable arbitration service, and
who is selected pursuant to the methods set out in the National Rules for Resolution
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of Employment
Disputes of the AAA, or other rules as the parties may agree to in writing. The Company will pay
the actual costs of arbitration excluding attorneys’ fees. Each party will pay its own attorneys’
fees and other costs incurred by their respective attorneys.
6.9 Review Period. Executive may take up to twenty-one (21) days from receipt of this
Agreement to decide whether to accept this Agreement. Executive may actually accept and sign this
Agreement at any time within this 21-day period, but Executive is not required to do so by the
Company. If Executive has not signed this Agreement as of the 22nd day after receipt, this offer is
revoked by the Company. In deciding whether to accept the terms of this Agreement, Executive is
advised he may revoke this entire release up to seven days following its execution.
6.10 No Suit, Action or Proceeding. Executive acknowledges and agrees he will not institute
any suit, action or proceeding, whether at law or equity, challenging the enforceability of this
Agreement. Should Executive ever attempt to challenge the terms of this Agreement, attempt to
obtain an order declaring this Agreement to be null and void, or institute litigation against the
Company based upon a claim which is covered by the terms of the release, Executive will as a
condition precedent to such action repay all amounts paid to him under Section 2.1 of this
Agreement. Furthermore, if Executive does not prevail in an action to challenge this Agreement, to
obtain an order declaring this Agreement to be null and void, or in any action against the Company
based upon a claim which is covered by this release, Executive shall pay to the Company all their
costs and attorneys’ fees incurred in their defense of my action.
6.11 Waiver of ADEA Claims. Executive understands and agrees that he shall not be required to
repay the amounts paid to him under Section 2.1 of this Agreement or pay the Company its costs and
attorneys’ fees incurred in its defense of this action (except those attorneys’ fees or costs
specifically authorized under federal or state law) in the event Executive
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seeks to challenge his
waiver of claims under the Age Discrimination in Employment Act. Likewise, this Paragraph is in no
way intended to constitute a waiver of Executive’s right to challenge the enforceability of this
Agreement as a defense to any action by the Company against Executive for breach of this Agreement.
Under such circumstances, Executive will not be obligated to repay any amounts paid to him under
Section 2.1 of this Agreement.
6.12 Age Representation: Executive is over the age of forty at the time of signing this
Agreement.
6.13 Notice Regarding Attorney: Executive is hereby advised of his right to consult with an
attorney of his choice, at his expense, before signing this Agreement.
6.14 Governing Law. Unless otherwise specified or required by statute in a particular
jurisdiction which expressly pertains to an employment relationship (e.g., wage payment timing, tax
withholding, etc.), all construction and interpretation of this Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without giving effect to principles of
conflicts of law.
6.15 Separability. Executive agrees that, if any single section or clause of this Agreement
should be found invalid or unenforceable, it shall be severed and the remaining sections and
clauses enforced in accordance with the intent of this Agreement.
6.16 Representations by Executive. Executive represents and certifies that he (1) has
received a copy of this Agreement for review and study and has had ample time to review it before
signing; (2) has read this Agreement carefully; (3) has been given a fair opportunity to discuss
and negotiate the terms of this Agreement; (4) understands its provisions; (5) understands that he
has the right to consult with an attorney; (6) has determined that it is in his best interest to
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enter into this Agreement; (7) has not been influenced to sign this Agreement by any statement or
representation by the Company not contained in this Agreement; and (8) enters into this Agreement
knowingly and voluntarily.
[SIGNATURES ON FOLLOWING PAGE]
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| ACCEPTED AND AGREED: | XXXXXX X. XXXXX | |||||
| Date: July 13, 2009 | /s/ Xxxxxx X. Xxxxx | |||||
| CC MEDIA HOLDINGS, INC. | ||||||
Date: July 13, 2009
|
By: | /s/ Xxxx X. Xxxx | ||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Chief Executive Officer | |||||
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