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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the 14th day of February, 1997 by and between Heftel Broadcasting
Corporation, a Delaware corporation (together with its successors and assigns
permitted hereunder, the "Company"), and McHenry T. Tichenor, Jr. (the
"Executive").
WHEREAS, a wholly-owned subsidiary of the Company will merge with and
into Tichenor Media System, Inc., a Texas corporation ("Tichenor"), whereby
Tichenor will become a wholly-owned subsidiary of the Company (the "Merger");
WHEREAS, it is a condition to Tichenor's obligation to consummate the
Merger that the Company enter into this Agreement with the Executive; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its stockholders
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 effective date of the Merger (the "Effective
Date") and ending on the fifth anniversary of such date (the "Employment
Period").
2. Terms of Employment.
(a) Position and Duties.
(i) During the term of the Executive's employment, the
Executive shall serve as Chairman, President and Chief Executive Officer of the
Company and, in so doing, shall report to 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, President and Chief Executive Officer of an
enterprise comparable to the Company.
(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 the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable
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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 (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 $260,000. During the term of the
Executive's employment, the Annual Base Salary shall be reviewed at least
annually by the Compensation Committee of the Board (the "Compensation
Committee") and shall be increased at any time and from time to time as the
Compensation Committee shall consider appropriate in accordance with the
compensation practices and guidelines of the Company for its executive
officers. 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) Bonus. In addition to Annual Base Salary, the
Executive shall be awarded during the term of the Executive's employment such
bonuses (each a "Bonus"), if any, as shall be determined by the Compensation
Committee consistent with its practices for executive officers of the Company.
(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 other executives of the Company
("Investment Plans").
(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 other executives of the Company.
(v) 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 and to
have the use of the 1993 Chevrolet Suburban owned by the Company.
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(vi) 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.
(vii) 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.
(viii) Employment Credit. For the purpose of determining
the Executive's eligibility, and the extent of his and his family's benefits,
under the Investment Plans, the Welfare Plans, and his rights under clauses
(iii), (iv), (v) and (vii) above, the Executive shall be deemed to have been
employed by the Company since the commencement of his employment with Tichenor.
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
incapacity due to mental or physical illness which is determined to be total
and permanent 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).
(b) Cause. 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
incapacity due to physical or mental illness) 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, 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, or (iv) the
conviction of the Executive of any felony (or a plea of nolo contendere
thereto).
(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,
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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 Executive's failure to serve as the sole chief executive officer of
the Company or the delegation of the authority, duties or responsibilities of
the chief executive officer 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));
(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) prior to the termination of the Executive for
Cause, the Executive's ceasing to be a director of the Company for any reason
other than his death, Disability (as hereinafter defined) or voluntary
resignation;
(vi) the relocation or transfer of the senior
management's executive offices to a location more than 15 miles from the
Executive's current principal residence set forth in Section 11(b) hereof; or
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(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 party
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 15 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 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.
(e) Date of Termination. "Date of Termination" means (i) if
the Executive's employment is terminated by the Company for Cause, 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,
(ii) if the Executive's employment is terminated by the Company other than for
Cause, 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:
(i) the Company shall pay to the Executive in a lump
sum in cash within ten days after the Date of Termination the aggregate of the
following amounts: (A) the sum of the
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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"); (B) an amount equal to the product of (x)
the sum of (1) the Executive's Annual Base Salary at the Date of Termination
plus (2), if the Date of Termination occurs prior to date that Bonuses have
first been awarded after the Effective Date, then the Executive's budgeted
Bonus for the year in which the Date of Termination occurs or, if the Date of
Termination occurs after the date that Bonuses have first been awarded after
the Effective Date, then the Executive's actual Bonus for the prior year
multiplied by (y) a fraction, the numerator of which is the number of full or
partial months in the period from the Date of Termination to the end of the
Employment Period and the denominator of which is 12; and (C) 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;
(ii) for the remainder of the Employment Period, or such
longer period as any plan, program, practice or policy may provide, the Company
shall continue benefits provided under Welfare Plans to the Executive and/or
the Executive's family at least equal to those which would have been provided
to them if the Executive's employment had not been terminated or pay the
Executive monthly an amount of cash equal to the value of benefits under
Welfare Plans; provided, however, that if the Executive becomes reemployed with
another employer and is eligible to receive similar benefits under another
employer provided plan, such benefits or cash described herein shall be
secondary to and not duplicate those provided under such other plan during such
applicable period of eligibility (such continuation of such benefits or cash
for the applicable period hereinabove set forth in this clause (ii) shall be
hereinafter referred to as "Welfare Benefit Continuation"). For purposes of
determining eligibility of the Executive for retiree benefits pursuant to such
plans, practices, programs and policies, the Executive shall be considered to
have remained employed until the end of the Employment Period and to have
retired on the last day of such period;
(iii) for the remainder of the Employment Period, to the
extent not theretofore paid or provided, the Company shall timely pay or
provide to the Executive and/or the Executive's family any other amounts or
benefits required to be paid or provided or which the Executive and/or the
Executive's family is eligible to receive pursuant to this Agreement and under
any plan, program, policy or practice or contract or agreement of the Company
("Other Benefits"); and
(iv) 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 first anniversary of
the Date of Termination.
(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
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in a lump sum in cash within ten days after the Date of Termination the
aggregate of the following amounts: (i) the Accrued Obligations; and (ii) the
Accrued Investments. The Company shall have no further payment obligations to
the Executive or his legal representatives under this Agreement, other than for
payment of Other Benefits and the timely provision of the Welfare Benefit
Continuation to the Executive's family.
(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 for (i) payment of Accrued
Obligations, Accrued Investments and Other Benefits and (ii) the timely
provision of the Welfare Benefit Continuation to the Executive and his family;
provided however, that if the Executive is covered by a Company-provided group
or individual disability insurance policy at the date the Executive's
employment is terminated by reason of the Executive's Disability and benefits
under such policy are not then payable to the Executive pursuant to the terms
of such policy, then the Company shall continue to pay the Executive his Annual
Base Salary in effect at the date of such termination (in accordance with the
customary payroll practices of the Company) until the first to occur of six
months after such termination date or benefits becoming payable to the
Executive under such policy.
(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 for payment of Accrued
Obligations, Accrued Investments and Other Benefits to the Date of Termination.
5. Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others; provided, however, that the Company may reduce any
payments it is required to make to the Executive under Section 4 by the amount
of the principal and accrued interest on any loans or advances made to the
Executive by the Company that are outstanding on the Date of Termination (and
such reduction in payments shall be deemed to be payment in full by the
Executive of such loans or advances to the extent of such reduction). 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, except as provided in Section
4(a)(ii), such amounts shall not be reduced 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 4 hereof 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 6 or 9
or criminal misconduct.
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6. 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"). 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.
(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.
(d) The Executive's obligations under this Section 6 shall
terminate (i) on the first anniversary of the Date of Termination if the
Executive's employment is terminated by the Company for Cause or due to
Disability or by the Executive without Good Reason or (ii) at the end of the
Employment Period if (A) the Executive's employment is terminated by the
Company without Cause (and not due to Disability) or by the Executive for Good
Reason and (B) the Company makes the payments and performs its obligations
required under Section 4 throughout the Employment Period.
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 the Company 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 its successors and assigns.
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(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.
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) the first
anniversary of the Date of Termination if the Executive's employment is
terminated by the Company for Cause or due to Disability or by the Executive
without Good Reason or (ii) the end of the Employment Period if (A) the
Executive's employment is terminated by the Company without Cause (and not due
to Disability) or by the Executive for Good Reason and (B) the Company makes
the payments and performs its obligations required under Section 4 throughout
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 Spanish language radio or television
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 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(b), "Company" shall include the Company and any of its subsidiaries.
(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 paragraph 9(c) shall be in addition to and not be
construed as a limitation upon the covenants in paragraph 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
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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.
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 Texas, 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. 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: McHenry T. Tichenor, Jr.
3924 Mockingbird Lane
Dallas, Texas 75205
If to the Company: Heftel Broadcasting Corporation
100 Crescent Court, Suite 1777
Dallas, Texas 75201
Attention: General Counsel
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 the Company irreparable
harm. Accordingly, the Company, 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
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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 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.
[Signature page follows]
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from the Board, the Company 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/ MCHENRY T. TICHENOR, JR.
---------------------------------
McHenry T. Tichenor, Jr.
HEFTEL BROADCASTING CORPORATION
By: /s/ L. LOWRY MAYS
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Name: L. Lowry Mays
Title: President and Chief
Executive Officer
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