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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the fourth day of May, 1998 by and between Capstar Employee Management
Company, Inc., a Delaware corporation (together with its successors and assigns
permitted hereunder, the "Company"), Xxxxx X. Xxxxxxx (the "Executive") and
Capstar Broadcasting Corporation, a Delaware corporation ("Capstar").
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, IT IS HEREBY AGREED AS FOLLOWS:
1. EMPLOYMENT PERIOD. Subject to Section 3, 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 the first business day after the date on which the
acquisition of SFX Broadcasting, Inc. ("SFX") is consummated by Capstar or one
of its subsidiaries and ending on the fifth anniversary of such date (the
"Employment Period"); provided, however, that commencing on such fifth
anniversary and on each anniversary thereafter, the Employment Period shall
automatically be extended for one additional year unless at least six months
prior to such anniversary (but no more than 12 months prior to such
anniversary), the Company or the Executive shall have given written notice that
it or he, as applicable, does not wish to extend this Agreement (a "Non-Renewal
Notice"). The term "Employment Period," as utilized in this Agreement, shall
refer to the Employment Period as so automatically extended.
2. TERMS OF EMPLOYMENT.
(a) Position and Duties.
(i) During the term of the Executive's
employment, the Executive shall serve as the President and Chief Executive
Officer of Pacific Star Communications, Inc. ("Pacific Star") and, in so doing,
shall report to the Board and the President and/or Chief Operating Officer of
Capstar. The Executive shall have supervision and control over, and
responsibility for, such management and operational functions of Pacific Star
currently assigned to such position, and shall have such other powers and duties
(including holding officer positions with Capstar and one or more subsidiaries
of Capstar) as may from time to time be prescribed by the Board, so long as such
powers and duties are reasonable and customary for the Chief Executive Officer
of an enterprise comparable to Pacific Star.
(ii) 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 agrees to devote full business time to the
business and affairs of Pacific Star and, to the extent necessary to discharge
the responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best
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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 (A) serve on corporate, civic
or charitable boards or committees, (B) deliver lectures or fulfill speaking
engagements and (C) 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.
(b) Compensation.
(i) Base Salary. 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, at least equal to $286,000. Commencing on
January 1, 1999, and on each subsequent January 1 as long as the Executive
remains an employee of the Company (each such January 1 being herein referred to
as an "Adjustment Date"), the Annual Base Salary of the Executive (which shall
be deemed equal to $286,000 for the initial Adjustment Date) shall be adjusted
to reflect increases in the Consumer Price Index for Urban Wage Earners and
Clerical Workers for the San Diego, California xxxxxxxxxxxx xxxx (0000 = 100),
published by the Bureau of Labor Statistics, United States Department of Labor
(the "Index"). On each Adjustment Date, the Executive's then current Annual Base
Salary shall be increased by a percentage of the Annual Base Salary for the
prior calendar year equal to the percentage increase in the Index for the prior
calendar year. The result of such calculation shall constitute the Executive's
Annual Base Salary, as adjusted, commencing on the Adjustment Date then at hand
and continuing until the next Adjustment Date. If (A) the Index ceases using the
1967 average of 100 as the basis of calculation, (B) a significant change is
made in the number or nature (or both) of items used in determining the Index,
or (C) the Index is discontinued for any reason, then the Company and the
Executive shall, in good faith, agree upon a substitute Index or procedure which
reasonably reflects and monitors the salaries of urban wage earners and clerical
workers in the San Diego, California metropolitan area. Any increase in Annual
Base Salary shall not serve to limit or reduce any other obligation to the
Executive under this Agreement. The term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so increased.
(ii) Bonuses. For each fiscal year of the
Company, the Board of Directors of Pacific Star shall approve a budget which
shall include, among other things, a target for the revenues and net income of
Pacific Star for that year. If the revenues and net income for a fiscal year of
Pacific Star equal or exceed the targets for such revenues and net income as set
forth in the budget, as evidenced by the audited income statement of Capstar for
such fiscal year, then, in addition to the Annual Base Salary, the Executive
shall be awarded a bonus in the amount of $50,000 (or such greater amount as the
Board may determine appropriate) with respect to such fiscal year.
(iii) Incentive, Savings and Retirement Plans.
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 executives of the Company
("Investment Plans").
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(iv) Welfare Benefit Plans. 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 executives of the Company.
(v) Stock Options. In addition to any benefits
the Executive may receive pursuant to paragraph 2(b)(iii), as may be determined
appropriate by the Board of Directors of Capstar, Capstar may, from time to
time, grant Executive stock options (the "Executive Options") exercisable for
shares of Class A Common Stock, par value $.01 per share, of Capstar and subject
to the terms of this Agreement, such Executive Options shall have such terms and
provisions as may be determined appropriate by the Board of Directors of
Capstar. Any such Executive Options will be granted under Capstar's 1997 Stock
Option Plan or a successor plan thereto.
(vi) Perquisites. 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.
(vii) Expenses. During the term of the Executive's
employment, the Executive shall be entitled to receive prompt reimbursement for
all reasonable employment expenses incurred by the Executive in accordance with
the policies, practices and procedures of the Company.
(viii) Vacation and Holidays. During the term of
the Executive's employment, the Executive shall be entitled to paid vacation and
paid holidays in accordance with the plans, policies, programs and practices of
the Company for its executive officers.
3. TERMINATION OF EMPLOYMENT.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
If the Disability of the Executive has occurred during the Employment Period
(pursuant to the definition of Disability set forth below), the Company may give
to the Executive written notice in accordance with Section 11(b) of its
intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean 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 acceptable to the Executive or the
Executive's legal representative (such agreement as to acceptability not to be
withheld unreasonably).
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(b) Cause or Board Determination. The Company may
terminate the Executive's employment during the Employment Period for Cause or
without Cause. For purposes of this Agreement, "Cause" shall mean (i) a breach
by the Executive of the Executive's obligations under Section 2(a) (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 remedied 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, or willful misconduct
toward, the Company or Pacific Star, as reasonably determined by a majority of
the disinterested members of the Board (neither the Executive nor members of his
family being deemed disinterested for this purpose) after a hearing by the Board
following ten days' notice to the Executive of such hearing, (iii) a material
breach by the Executive of Section 6 or Section 9, (iv) the conviction of the
Executive of any felony (or a plea of nolo contendere thereto); or (v) 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 remedied within 30 days after receipt of written notice from the Company
specifying such failure. For purposes of this Agreement, a "Board Determination"
shall mean 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 2(a), and (ii) that Cause does not exist as a basis for such
termination. For purposes of this Agreement, "without Cause" shall mean 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.
(c) Good Reason. The Executive's employment may be
terminated during the Employment Period by the Executive for Good Reason or
without Good Reason; provided, however, that the Executive agrees not to
terminate his employment for Good Reason unless (i) the Executive has given the
Company at least 30 days' prior written notice of his intent to terminate his
employment for Good Reason, which notice shall specify the facts and
circumstances constituting Good Reason, and (ii) the Company has not remedied
such facts and circumstances constituting Good Reason within such 30-day period.
For purposes of this Agreement, "Good Reason" shall mean:
(i) the assignment to the Executive of any
duties inconsistent in any respect with the Executive's position (including
status, offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 2(a) or any other action by the
Company which results in a material diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive (without limiting the foregoing, the Company and the Executive agree
that the delegation of the authority, duties or responsibilities of the
Executive to another person or persons, including any committee, shall be deemed
to be an action by the Company which results in a material diminution in the
Executive's position, authority, duties, or responsibilities as contemplated by
Section 2(a)), provided, however, that Good Reason may not be asserted by the
Executive under this clause (i) of Section 3(c) after a Non-Renewal Notice has
been given by either the Company or the Executive;
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(ii) any termination or material reduction of a
material benefit under any Investment Plan or Welfare Plan in which the
Executive participates unless (A) there is substituted a comparable benefit that
is economically substantially equivalent to the terminated or reduced benefit
prior to such termination or reduction or (B) benefits under such Investment
Plan or Welfare Plan are terminated or reduced with respect to all employees
previously granted benefits thereunder;
(iii) any failure by the Company to comply with
any of the provisions of Section 2(b), other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(iv) any failure by the Company to comply with
and satisfy Section 8(c), provided that such successor has received at least ten
days prior written notice from the Company or the Executive of the requirements
of Section 8(c);
(v) any failure by Capstar to comply with and
satisfy Section 8(d), provided that such successor has received at least ten
days prior written notice from Capstar or the Executive of the requirements of
Section 8(d);
(vi) the relocation or transfer of the
Executive's principal office to a location more than 50 miles from the
Executive's current executive offices as such are maintained on the date hereof
in the city of San Diego, California; or
(vii) without limiting the generality of the
foregoing, any material breach by the Company or any of its subsidiaries or
other affiliates (as defined below) of (A) this Agreement or (B) any other
agreement between the Executive and the Company or any such subsidiary or other
affiliate.
As used in this Agreement, "affiliate" means, with respect to a person,
any other person controlling, controlled by or under common control with the
first person; the term "control," and correlative terms, means the power,
whether by contract, equity ownership or otherwise, to direct the policies or
management of a person; and "person" means an individual, partnership,
corporation, limited liability company, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
(d) Notice of Termination. 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 Notice of Termination to the other parties
hereto given in accordance with Section 11(b). For purposes of this Agreement, a
"Notice of Termination" means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated and (iii) if the Date of Termination (as defined below)
is other than the date of receipt of such notice, specifies the termination date
(which date shall not be more than 30 days after the giving of such notice). The
failure by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes
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to a showing of Good Reason, Cause or a termination made pursuant to a Board
Determination shall not waive any right of the Executive or the Company
hereunder or preclude the Executive or the Company from asserting such fact or
circumstance in enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i)
if the Executive's employment is terminated by the Company for Cause or pursuant
to a Board Determination, 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 pursuant to Section 3(d), as the case may be, (ii) if the
Executive's employment is terminated by the Company other than for Cause or
pursuant to a Board Determination, the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment is
terminated by reason of death or Disability, the date of death of the Executive
or the Disability Effective Date, as the case may be.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) Good Reason; Other Than for Cause, Death or
Disability. If, during the Employment Period, the Company shall terminate the
Executive's employment 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 Disability:
(i) The Company shall pay to the Executive (A)
in a lump sum in cash within ten days after the Date of Termination the
aggregate of the following amounts: (1) the sum of the Executive's Annual Base
Salary through the Date of Termination to the extent not theretofore paid and
any compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon) and any accrued vacation pay ("Accrued
Obligations"); and (2) 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 (B) in regular installments in accordance with the customary payroll
practices of the Company the Executive's then current Annual Base Salary for a
period of one year from the Date of Termination.
(ii) Notwithstanding the terms or conditions of
any Executive Option, stock option, stock appreciation right or similar
agreements between the Company or Capstar and the Executive, the Executive shall
vest, as of the Date of Termination, in all rights under such agreements (i.e.,
Executive Options or other similar 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
Executive Option, stock option, stock 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
(ii) of this Section 4(a) 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.
(iii) At the Executive's election, the Company
shall reimburse Executive for, or pay on behalf of Executive, the cost of the
monthly premiums paid by or allocable to
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Executive for medical and dental insurance coverage for Executive pursuant to
the continuation coverage requirements of Section 4980B(f) of the Internal
Revenue code of 1986, as amended (the "Code"). The consideration payable to
Executive under this subsection (a)(iii) shall continue until the earlier of (A)
the date which is 18 months after the Date of Termination, or, if shorter, until
the end of the maximum required period for which continuation coverage is
required to be offered under Code Section 4980B(f)(2)(B), or (B) the date
Executive has commenced new employment and has thereby become eligible for
comparable medical benefits.
(b) Death. 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) in a lump sum in cash within ten days after
the Date of Termination the Accrued Obligations; and (ii) the Accrued
Investments which amounts shall be payable in accordance with the terms and
conditions of the Investment Plans.
(c) Disability. If the Executive's employment is
terminated by reason of the Executive's Disability during the Employment Period,
the Company shall have no further payment obligations to the Executive or his
legal representatives under this Agreement, other than (i) the payment in a lump
sum in cash within ten days after the Date of Termination, of the Accrued
Obligations and (ii) the Accrued Investments which amounts shall be payable in
accordance with the terms and conditions of the Investment Plans.
(d) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated by the Company for Cause or by the Executive
without Good Reason during the Employment Period, the Company shall have no
further payment obligations to the Executive other than (i) the payment, in a
lump sum in cash within ten days after the Date of Termination, of the Accrued
Obligations, (ii) payment of the Accrued Investments, which amounts shall be
payable in accordance with terms and conditions of the Investment Plans, and
(iii) the continuance of benefits under the Welfare Plans to the Date of
Termination.
(e) In addition, if the Executive's employment is
terminated by reason of the Executive's death or Disability during the
Employment Period, then at the option of the Executive's family, the Company
agrees to reimburse Executive's family for, or pay on behalf of Executive's
family, the cost of the monthly premiums allocable to Executive's family for
medical and dental insurance coverage for provided for Executive's family
pursuant to the continuation coverage requirements of Section 4980B(f) of the
Code, for a period of 12 months after the Date of Termination.
5. 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 whether or not the
Executive obtains other employment. Neither the Executive, on the one hand, nor
Capstar and the Company, on the other hand, shall be liable to the other for any
damages in addition to the amounts payable under Section 4 arising out of the
termination of the Executive's employment prior to the end of the Employment
Period; provided, however, that the Company and Capstar shall be entitled to
seek damages for any breach of Sections 6, 7 or 9 or criminal misconduct.
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6. CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that Pacific Star, the
Company and their affiliates have trade, business and financial secrets and
other confidential and proprietary information (collectively, the "Confidential
Information"). As defined herein, Confidential Information shall not include (i)
information that is generally known to other persons or entities who can obtain
economic value from its disclosure or use and (ii) 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 (ii) above. As used in this Section 6,
"Company" shall include Capstar and any direct or indirect subsidiaries of
Capstar, including the Company.
(b) The Executive agrees (i) to hold such Confidential
Information in confidence and (ii) not to release such information to any person
(other than Company employees and other persons to whom the Company has
authorized the Executive to disclose such information and then only to the
extent that such Company employees and other persons authorized by the Company
have a need for such knowledge).
(c) The Executive further agrees not to use any
Confidential Information for the benefit of any person or entity other than the
Company.
7. SURRENDER OF MATERIALS UPON TERMINATION. Upon any termination
of the Executive's employment, the Executive shall immediately return to the
Company all copies, in whatever form, of any and all Confidential Information
and other properties of Capstar and its affiliates which are in the Executive's
possession, custody or control.
8. SUCCESSORS.
(a) This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and Capstar and their respective successors and
assigns.
(c) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly 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, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
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(d) Capstar will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of Capstar to assume expressly
and agree to perform this Agreement in the same manner and to the same extent
that Capstar would be required to perform it if no such succession had taken
place. As used in this Agreement, "Capstar" shall mean Capstar as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
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 (i) if this
Agreement is terminated during the Employment Period by either the Company or
the Executive for any reason, the first anniversary of the Date of Termination
or (ii) if the Employment Period expires by reason of a Non-Renewal Notice, the
last day of the Employment Period.
(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, consultant, contractor, partner, joint venturer, agent, equity
owner or in any capacity whatsoever, (i) engage in any radio broadcasting
business that transmits a primary or city-grade signal within a Metro Survey
Area (as currently defined by The Arbitron Company in its Radio Markets Reports)
in which a station directly or indirectly operated by the Company transmits a
primary or city-grade signal (A), with respect to the term of Non-Competition
that is during the Executive's employment, during such term of employment, and
(B), with respect to the term of Non-Competition that is after the term of the
Executive's employment, on the Date of Termination (all such areas being
collectively called the "Geographic Area") (a "Competing Business"), (ii) hire,
attempt to hire, or contact or solicit with respect to hiring any employee of
the Company, or (iii) divert or take away any customers or suppliers of the
Company in the Geographic Area. 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. As used in this Section 9,
"Company" shall include Capstar and any direct or indirect subsidiaries of
Capstar, including the Company.
(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 proprietary
information, plans and services and to protect the other legitimate business
interests of the Company.
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10. 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.
11. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflict of laws. 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. Xxxxxxx
X.X. Xxx 000000
Xxxxxx Xxxxx Xx, Xxxxxxxxxx 00000
If to the Company or Capstar: Capstar Broadcasting Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Xx.
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term of this Agreement, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a portion of this Agreement; and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of such illegal, invalid
or unenforceable provision there shall be added automatically as part of this
Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
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(d) The Company agrees to attempt to obtain and maintain
a director's and officer's liability insurance policy during the term of the
Executive's employment covering the Executive on commercially reasonable terms,
and the amount of coverage shall be reasonable in relation to the Executive's
position and responsibilities hereunder; provided, however, that such coverage
may be reduced or eliminated to the extent that the Company reduces or
eliminates coverage for its directors and executives generally.
(e) The Company may withhold from any amounts payable
under this Agreement such Federal, state or local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
(f) The Executive's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or the failure to
assert any right the Executive or the Company may have hereunder, including,
without limitation, the right of the Executive to terminate employment for Good
Reason, shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement.
(g) The Executive acknowledges that money damages would
be both incalculable and an insufficient remedy for a breach of Section 6 or 9
by the Executive and that any such breach would cause Capstar irreparable harm.
Accordingly, Capstar, in addition to any other remedies at law or in equity it
may have, shall be entitled, without the requirement of posting of bond or other
security, to equitable relief, including injunctive relief and specific
performance, in connection with a breach of Section 6 or 9 by the Executive.
(h) The provisions of this Agreement constitute the
complete understanding and agreement between the parties with respect to the
subject matter hereof.
(i) This Agreement may be executed in two or more
counterparts.
(j) In the event any dispute or controversy arises under
this Agreement and is not resolved by mutual written agreement between the
Executive and the Company within 30 days after notice of the dispute is first
given, then, upon the written request of the Executive or the Company, such
dispute or controversy shall be submitted to arbitration to be conducted in
accordance with the rules of the American Arbitration Association. Judgment may
be entered thereon and the results of the arbitration will be binding and
conclusive on the parties hereto. Any arbitrator's award or finding or any
judgment or verdict thereon will be final and unappealable. All parties agree
that venue for arbitration will be in Dallas, Texas, and that any arbitration
commenced in any other venue will be transferred to Dallas, Texas, upon the
written request of any party to this Agreement. All arbitrations will have three
individuals acting as arbitrators: one arbitrator will be selected by the
Executive, one arbitrator will be selected by the Company, and the two
arbitrators so selected will select a third arbitrator. Any arbitrator selected
by a party will not be affiliated, associated or related to the party selecting
that arbitrator in any matter whatsoever. The decision of the majority of the
arbitrators will be binding on all parties. The Company shall be responsible for
paying its own and the Executive's attorneys fees, costs and other expenses
pertaining to any such arbitration and enforcement regardless of whether an
arbitrator's award or finding or any judgment or verdict thereon is entered
against the
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12
Executive. The Company shall promptly (and in no event after ten days following
its receipt from the Executive of each written request therefor) reimburse the
Executive for his reasonable attorneys fees, costs and other expenses pertaining
to any such arbitration and the enforcement thereof. As used in this Section
11(j), "Company" shall include the Company and Capstar.
(k) Sections 6 and 9 of this Agreement shall survive the
termination of this Agreement.
(l) The parties hereto agree that any employment
agreement or other agreements or arrangements (whether written or oral)
governing the Executive's employment relationship with SFX or any of its
subsidiaries shall not be binding on, or have any force or effect against, the
Company and its affiliates; provided, however, that the Deferred Bonus
Compensation Agreement dated as of June 1996, by and between the Executive and
SFX shall remain in full force and effect. As used in this Section 11(l),
"Company" shall include Capstar and any direct or indirect subsidiaries of
Capstar, and immediately upon the consummation of the acquisition of SFX by
Capstar, SFX and its subsidiaries.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from their respective Boards of Directors,
each of the Company and Capstar has caused this Agreement to be executed in its
name on its behalf, all as of the day and year first above written.
EXECUTIVE
/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
CAPSTAR EMPLOYEE MANAGEMENT
COMPANY, INC.
/s/
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By:
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Title:
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CAPSTAR BROADCASTING CORPORATION
/s/
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By:
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Title:
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