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EXHIBIT 10.15
CONSULTING, NON-COMPETE AND SEPARATION AGREEMENT
THIS CONSULTING, NON-COMPETE AND SEPARATION AGREEMENT (this
"AGREEMENT"), effective as of March 1, 1998, is made and entered into by and
between Southern Star Communications, Inc., a Delaware corporation (the
"COMPANY"), and Frank D. Osborn ("EXECUTIVE").
RECITALS
WHEREAS, the Company entered into that certain Employment Agreement
dated February 20, 1997 (the "EMPLOYMENT AGREEMENT"), by and between the
Company and Executive, pursuant to which Executive has served as the President
and Chief Executive Officer of the Company;
WHEREAS, Executive and the Company each desire that Executive resign
his employment as President and Chief Executive Officer of the Company and the
Company and Executive have mutually agreed to terminate the Employment
Agreement without further obligation of either party thereunder, effective as
of March 1, 1998 (the "EFFECTIVE TIME");
WHEREAS, the Company desires to retain Executive as a consultant of
the Company, and Executive desires to be so retained by the Company, on the
terms and subject to the conditions more fully set forth in this Agreement; 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 sole
stockholder to enter into the mutual release of claims contained within this
Agreement and to require Executive to refrain from engaging in competitive
activities, all as more fully set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. EMPLOYMENT AGREEMENT. Executive hereby represents and
warrants that his employment relationship with the Company is pursuant to and
governed solely by the Employment Agreement, a true and correct copy of which
is attached hereto as Annex I.
2. RESIGNATION/TERMINATION OF EMPLOYMENT AGREEMENT. Effective as
of the Effective Time, (a) Executive hereby tenders his resignation as an
officer of the Company and each of its subsidiaries and (b) the Employment
Agreement shall be terminated in full without any further action on the part of
the Company or Executive. Except as expressly provided in this Agreement, from
and after the Effective Time, Executive shall not be entitled to receive any
further wages, compensation, stock options or benefits arising pursuant to the
Employment Agreement or in connection with his employment relationship with the
Company or any of its subsidiaries, and Executive shall not be
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entitled to any post termination wages, compensation or benefits (including,
without limitation, severance pay, vacation pay or sick pay).
3. RELEASE OF CLAIMS.
(a) RELEASE BY EXECUTIVE. Effective as of the Effective
Time, Executive hereby releases and discharges, on behalf of himself and the
Released Executive Parties, the Released Company Parties from all Claims and
Damages, including those related to, arising from, or attributed to (i) his
employment with the Company and its subsidiaries and resignations therefrom,
(ii) the Employment Agreement, and (iii) all other acts or omissions related to
any matter at any time prior to and including the date of termination of the
Employment Agreement; except that this release shall not include Executive's
(A) entitlement to continued group medical coverage in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), (B) vested
account balances in the employee benefit plans described in Annex II attached
hereto, (C) rights of Executive arising under this Agreement, (D) rights of
Executive under that certain Stockholders Agreement dated as of November 26,
1996, as amended (the "STOCKHOLDERS AGREEMENT"), by and among Capstar
Broadcasting Partners, Inc., the securityholders listed on the signature pages
thereto, and Hicks, Muse, Tate & Furst Incorporated, or (E) except as modified
by Section 5(d), rights of Executive under the Non-Qualified Stock Option
Agreement dated June 20, 1997, by and between Executive and Capstar
Broadcasting Corporation ("Capstar Broadcasting"), a true and correct copy of
which is attached hereto as Annex III (the "OPTION AGREEMENT"). Executive
understands and expressly agrees that, unless specifically excluded from this
release, this release extends to all Claims and Damages of every nature and
kind, known or unknown, suspected or unsuspected, past or present, whether or
not these Claims and Damages were set forth in any writing, and that all such
Claims and Damages are hereby expressly settled or waived. Notwithstanding the
foregoing, Executive does not release or discharge the Company and its
subsidiaries from any Claims or Damages related to or arising from Executive's
capacity as an officer or director of the Company or its subsidiaries to which
Executive is entitled to be indemnified against by the Company or its
subsidiaries, whether by statute, contract or otherwise.
(b) RELEASE BY THE COMPANY. Effective as of the
Effective Time, the Company hereby releases and discharges, on behalf of itself
and the Released Company Parties, the Released Executive Parties from all
Claims and Damages, including those related to, arising from, or attributed to
(i) Executive's employment with the Company and its subsidiaries and
resignations therefrom, (ii) the Employment Agreement, and (iii) all other acts
or omissions related to any matter at any time prior to and including the date
of termination of the Employment Agreement; except that this release shall not
include (A) rights of the Company arising under this Agreement, (B) rights of
the Company and its affiliates under the Stockholders Agreement, (C) except as
modified by Section 5(d), rights of the Company and Capstar Broadcasting under
the Option Agreement. The Company understands and expressly agrees that,
unless specifically excluded from this release, this release extends to all
Claims and Damages of every nature and kind, known or unknown, suspected or
unsuspected, past or present, whether or not these Claims and Damages were set
forth in any writing, and that all such Claims and Damages are hereby expressly
settled or waived.
(c) DEFINITIONS. As used in this Section 3, the
following terms shall have meanings set forth below:
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(i) "CLAIMS" means all theories of recovery of
whatever nature, whether known or unknown, at law or equity, of any
jurisdiction, based on acts, omissions or other matters occurring on
or before the Effective Time. This term includes, without limitation,
lawsuits, petitions, complaints, causes of action, charges,
indebtedness, losses, claims, liabilities, and demands, whether
arising in equity or under the common law or under any contract
(including, without limitation, the Employment Agreement), statute,
regulation or ordinance. This term also includes, without limitation,
any Claim of discrimination (based on age or any other factor) under
any statute or law (including, without limitation, the Age
Discrimination in Employment Act, 29 U.S.C. Section 621, et seq.;
Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e,
et seq.; and the Americans with Disabilities Act, 42 U.S.C. Section
12101, et seq.), and all Claims asserted by any Released Executive
Party or any Released Company Party, as applicable, in writing or
otherwise, or which could be asserted, by any Released Executive Party
or any Released Company Party, as applicable.
(ii) "DAMAGES" means all elements of relief or
recovery of whatever nature, whether known or unknown, which are
recognized by the law or equity of any jurisdiction, based on acts,
omissions or other matters occurring on or before the Effective Time.
This term includes, without limitation, actual, incidental, indirect,
consequential, compensatory, liquidated, exemplary, and punitive
damages; rescission, attorneys' fees; interest; costs; equitable
relief; and expenses.
(iii) "RELEASED COMPANY PARTIES" means and includes
the Company and its subsidiaries, and all of the foregoing entities'
past, present and future stockholders, directors, officers, employees,
agents, insurance carriers, employee benefit plans (and such plans'
fiduciaries, trustees, administrators and representatives),
predecessors, successors, assigns, executors, administrators,
attorneys and representatives, in both their corporate and individual
capacities.
(iv) "RELEASED EXECUTIVE PARTY" means and includes
Executive, his family, his estate, his agents, and each of their
respective successors and assigns.
4. PARTICIPATION IN WELFARE BENEFIT PLANS. For a period of 24
months commencing as of the Effective Time, Executive (and members of his
family) shall be entitled to continue their participation in the Company's
welfare benefit plans, practices, policies and programs (including, without
limitation, the Company's executive medical, prescription, dental, disability,
employee life, group life, accidental death and travel accident insurance plans
and programs) (the "WELFARE PLANS") on the same basis as Executive participated
in the Welfare Plans immediately prior to the Effective Time. If pursuant to
the terms and provisions of the Company's Welfare Plans Executive (or members
of his family) are not eligible to participate in the Company's Welfare Plans
because Executive is no longer an employee of the Company, then the Company may
fulfill its obligations under this Section 4 by either providing to 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 Effective Time.
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5. CONSULTING ARRANGEMENT.
(a) CONSULTING SERVICES. Effective as of the Effective
Time, the Company hereby retains Executive to render such consulting and
advisory services (the "CONSULTING SERVICES") as the Company may reasonably
request from time to time during the term of the consulting arrangement set
forth in this Section 5 concerning the management or operation of the Company
and its subsidiaries, including, without limitation, the development of
strategies to maximize the value of the Muzak Division of the Company.
Executive hereby accepts such engagement and agrees to perform such services
for the Company upon the terms and conditions set forth in this Agreement.
Executive will perform the Consulting Services at such times and places as the
President and/or Chief Executive Officer of the Company, from time to time,
shall reasonably request. It is expressly understood and agreed that such
consulting services shall be incidental to and shall not unreasonably interfere
with the other business activities of Executive which may include full time
employment responsibilities to one or more employers. Consulting and advising
via telephone, facsimile transmission and correspondence, as well as in person,
shall constitute performance of Executive's services hereunder. The Company
will reimburse Executive for reasonable out-of-pocket expenses which Executive
incurs in the course of providing the Consulting Services. Notwithstanding
anything in this Agreement, Executive is an independent contractor with
authority to select the means and method of performing the Consulting Services.
Executive is not an employee or agent of the Company and any action taken by
Executive which is not authorized by this Agreement or any other agreement
between the Company and Executive will not bind the Company or create any claim
against the Company. Unless otherwise specifically authorized by this
Agreement or any other agreement between the Company and Executive, Executive
has no authority to transact any business or make any representations or
promises in the name of the Company.
(b) TERM. Unless terminated at an earlier date in
accordance with subsection (c) of this Section 5, the term of the consulting
arrangement shall be for the period commencing as of the Effective Time and
ending at 5:00 p.m., Texas time, on February 28, 2001 (the "CONSULTING
PERIOD").
(c) TERMINATION OF CONSULTING ARRANGEMENT.
Notwithstanding any contrary provision contained elsewhere in this Agreement,
this Section 5 and the consulting arrangement created by this Section 5 between
the Company and Executive (i) may be terminated prior to the expiration of the
term set forth in subsection (b) by the Company or Executive, in either case,
for any reason or no reason at all and (ii) shall terminate automatically upon
the death of Executive. Termination of this consulting arrangement by either
party hereto shall be evidenced by a written notice delivered to the other
party, which notice shall specify the termination date (which date shall not be
more than 15 days after the giving of such notice). Upon a termination of the
consulting arrangement set forth in this Section 5, neither of the parties
hereto shall have any further duty or obligation under this Section 5, provided
that the Company shall pay to Executive (or, in the case of Executive's death,
to Executive's legal representatives), in regular installments in accordance
with the customary payroll practices of the Company, Executive's Consulting Fee
(as defined in Section 8) for the remainder of the Consulting Period without
regard to such termination, unless, however, the consulting arrangement shall
have been terminated by Executive pursuant to this Section 5(c), in which case
the Company shall have no further obligation to pay Executive's Consulting Fee.
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(d) STOCK OPTIONS. Executive has previously been granted
an option to acquire 1,500,000 shares of Class A Common Stock, par value $.01
per share ("CLASS A COMMON STOCK"), of Capstar Broadcasting pursuant to the
Option Agreement. Executive hereby represents and warrants that, except for
the Option Agreement, he is not a party to any stock option, stock appreciation
right or similar agreement granting Executive the right to acquire or benefit
from the appreciation in value of capital stock of Capstar Broadcasting or any
of its subsidiaries. Notwithstanding the terms or conditions of the Option
Agreement or the Employment Agreement, Executive shall vest, as of the
Effective Time, in all rights under the Option Agreement (i.e., the option to
acquire 1,500,000 shares of Class A Common Stock evidenced by the Option
Agreement shall be deemed 100% vested and immediately and fully exercisable)
and thereafter Executive (or, in the case of Executive's death, his legal
representatives) shall be permitted to exercise the option to acquire all or
any portion of said 1,500,000 shares of Class A Common Stock at any time and
from time to time until 5:00 p.m., Texas time, until the earlier to occur of
(i) February 28, 2001 or (ii) the 90th day after the date of termination of the
consulting arrangement pursuant to subsection (c) of this Section 5.
6. CONFIDENTIALITY.
(a) PROTECTION OF CONFIDENTIAL INFORMATION AND TRADE
SECRETS. Executive acknowledges that the business of the Company and its
subsidiaries is highly competitive and that their contracts, books, records,
and documents, their technical information concerning their services, pricing
techniques, and computer system and software, and the names of and other
information (such as credit and financial data) concerning their customers and
business affiliates, all comprise confidential business information and trade
secrets which are valuable, special, and unique assets which the Company and
its subsidiaries use in their business to obtain a competitive advantage over
their competitors. (All such information belonging to the Company and its
subsidiaries is jointly referred to herein as "CONFIDENTIAL INFORMATION AND
TRADE SECRETS.") Executive agrees that all Confidential Information and Trade
Secrets are the exclusive, confidential, and proprietary information and
property of the Company and, except as necessary to perform the Consulting
Services, will not be used by Executive for any other purpose or in any other
manner. Executive further acknowledges that protection of such Confidential
Information and Trade Secrets against unauthorized disclosure and use is of
critical importance to the Company and its subsidiaries in maintaining their
competitive position. Executive hereby agrees that he will not make any
unauthorized disclosure of any such Confidential Information and Trade Secrets,
or make any unauthorized use thereof. In the event that Executive is requested
pursuant to, or required by, applicable law or regulation or by legal process
to disclose any Confidential Information and Trade Secrets, Executive agrees to
provide the Company with prompt notice of such request(s) to enable the Company
to seek an appropriate protective order; provided, however, that Executive
shall not be prohibited from complying with any such request unless an
appropriate protective order is in place.
(b) SURRENDER OF MATERIALS UPON TERMINATION. Upon any
termination of Executive's consulting arrangement set forth in Section 5 of
this Agreement, Executive shall immediately return to the Company all copies,
in whatever form, of any and all Confidential Information and Trade Secrets and
other properties of the Company and its affiliates which are in Executive's
possession, custody or control.
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(c) SCOPE OF PROHIBITED ACTIVITIES; REMEDIES. Executive
acknowledges that the scope of prohibited activities, and time of duration of
the provisions of this Section 6 are reasonable and are no broader than are
necessary to protect the goodwill and legitimate business interests of the
Company and its subsidiaries. Executive also acknowledges that the provisions
of this Section 6 do not and will not impose any unreasonable burden on
Executive. Executive further acknowledges that a violation of this Section 6
will cause irreparable damage to the Company and its subsidiaries, entitling
them to an injunction and other equitable relief in a court of competent
jurisdiction against Executive. In addition, the Company and its subsidiaries
shall be entitled to whatever other remedies they may have at law, including,
without limitation, reasonable attorneys fees and costs incurred by the Company
and its subsidiaries in enforcing the terms of this Section 6.
7. NON-COMPETITION AGREEMENT.
(a) NON-COMPETITION. Except as expressly permitted
herein, effective as of the date hereof Executive agrees that he shall not
(other than for the benefit of the Company pursuant to this Agreement), until
after 11:59 p.m. on February 28, 2002:
(i) directly or indirectly, individually or as an
officer, director, employee, shareholder, consultant, contractor,
partner, joint venturer, agent, equity owner or in any capacity
whatsoever, (A) 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 (1) a station, which as of the Effective Time, is
directly operated by the Company or any of its subsidiaries, transmits
a primary or city-grade signal or (2) a station, which as of the
Effective Time is under binding contract to be acquired by the Company
or any of its affiliates and is identified on Annex IV attached
hereto, and which shall be directly operated by the Company or any of
its subsidiaries upon consummation of such acquisition, transmits a
primary or city grade signal (all such areas being collectively called
the "GEOGRAPHIC AREA") (a "COMPETING BUSINESS"), (B) hire, attempt to
hire, or contact or solicit with respect to hiring any employee of the
Company or any of its subsidiaries, or (C) divert or take away any
customers or suppliers of the Company or any of its subsidiaries in
the Geographic Area. Notwithstanding the foregoing, the Company
agrees that 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 Executive does not otherwise participate
in such competing business in any way prohibited by the preceding
clause; and
(ii) use Executive's access to, knowledge of, or
application of Confidential Information and Trade Secrets to perform
any duty for any Competing Business; it being understood and agreed to
that this Section 7(a)(ii) shall be in addition to and not be
construed as a limitation upon the covenants in Section 7(a)(i)
hereof.
(b) SCOPE OF PROHIBITED ACTIVITIES; REMEDIES. Executive
acknowledges that he has consulted with his counsel and has been advised in all
respects concerning the reasonableness and propriety of this Section 7 and
acknowledges that it is his valid, binding and enforceable obligation.
Executive acknowledges that the geographic boundaries, scope of prohibited
activities, and time duration of this Section 7 are reasonable in nature and
are no broader than are necessary
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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. Executive also acknowledges that the provisions of
this Section 7 do not and will not impose any unreasonable burden on Executive.
Executive further acknowledges that violation of this Section 7 will cause
irreparable damage to the Company and its subsidiaries, entitling them to an
injunction and other equitable relief in a court of competent jurisdiction
against Executive. In addition, the Company and its subsidiaries shall be
entitled to whatever other remedies they may have at law, including, without
limitation, reasonable attorneys fees and costs incurred by the Company and its
subsidiaries in enforcing the terms of this Section 7.
8. CONSIDERATION.
(a) TERMINATION AND RELEASE. As consideration for the
termination of the Employment Agreement pursuant to Section 2 and the
Executive's release of claims pursuant to Section 3, the Company hereby agrees
to pay Executive immediately after the Effective Time, by means of wire
transfer of immediately available funds, an amount equal to $730,000.
(b) CONSULTING SERVICES. As consideration for the
Consulting Services to be rendered by Executive pursuant to Section 5, except
as provided in Section 5(c), the Company hereby agrees to pay Executive
$100,000 (the "CONSULTING FEE") annually during the Consulting Period, which
shall be paid in accordance with the customary payroll practices of the
Company. Executive shall be entitled to the payment of the full Consulting Fee
regardless of the amount and frequency of Consulting Services actually
requested of him.
(c) NON-COMPETITION AGREEMENT. As consideration for
Executive's obligations under the non-competition agreement set forth in
Section 7, the Company hereby agrees to pay Executive $375,000 annually during
the period commencing at the Effective Time and ending at 5:00 p.m., Texas
time, on February 28, 2001, which shall be paid in accordance with the
customary payroll practices of the Company.
Executive acknowledges and agrees that the consideration described in
clauses (a), (b) and (c) of this Section 8 constitutes adequate consideration
for his obligations under this Agreement.
9. SURVIVAL. The provisions of Sections 3, 4, 5(d), 6, 7, 8 and
this Section 9 shall survive any termination of the consulting arrangement set
forth in Section 5 of this Agreement.
10. MISCELLANEOUS.
(a) COMPANY AUTOMOBILE. As further consideration for
Executive's agreement to enter into this Agreement, the Company agrees that
Executive may forever retain, and shall obtain title to at the Effective Time,
the Company purchased automobile currently used by Executive.
(b) No Mitigation. In no event shall Executive be
obligated to take any action by way of mitigation of the amounts payable to
Executive hereunder and such amounts shall not be
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reduced whether or not Executive obtains other employment or receives
compensation for the provision of employment, consulting or other services to
any person or entity.
(c) EXPENSES. Except as otherwise expressly provided in
this Agreement, all costs and expenses (including attorneys fees and expenses)
incurred by the parties hereto in connection with this Agreement and the
transactions contemplated hereby shall be borne solely and entirely by the
party which has incurred such expenses.
(d) ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
(e) CERTAIN EVENTS. Executive agrees that this Agreement
and the obligations hereunder shall be binding upon his heirs, guardians,
administrators or successors.
(f) ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party; provided that nothing in this Agreement shall preclude Executive, upon
prior written notice to the Company, from designating any of his beneficiaries
to receive any benefits payable hereunder upon his death or disability, or his
executors, administrators, or other legal representatives, from assigning any
rights hereunder to the person or persons entitled thereto; provided further
that nothing in this Agreement shall preclude the consolidation or merger of
the Company with another person in which the Company is not the continuing
person or the transfer of all or substantially all of the assets of the Company
if the successor assumes (by operation of law or otherwise) the rights and
obligations of the Company under this Agreement.
(g) AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto. 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 Executive or the Company may have hereunder shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
(h) NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any courier service, such as Federal
Express, providing proof of delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses:
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If to Executive:
Frank D. Osborn
174 Hemlock Hill Road
New Canaan, Connecticut 06840
Telecopy: (203) 629-1749
copies to: Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Telecopy: (212) 373-2159
Attn: Brian D. Robbins
If to the Company:
c/o Capstar Broadcasting Corporation
600 Congress Avenue, Suite 1400
Austin, Texas 78701
Telecopy: (512) 404-6850
Attn: William S. Banowsky, Jr.
copies to: Vinson & Elkins L.L.P.
3700 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201-2975
Telecopy: (214) 999-7732
Attn: Michael D. Wortley
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(i) SEVERABILITY. 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.
(j) SPECIFIC PERFORMANCE. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled, without the requirement of
posting of bond or other security,
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to the remedy of specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
(k) REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law
or in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(l) NO WAIVER. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance
by any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
(m) NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(n) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(o) DESCRIPTIVE HEADINGS. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
Whenever the terms "HEREOF," "HEREBY," "HEREIN," "HEREUNDER," 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
referred 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."
(p) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement.
(q) WITHHOLDINGS. As may be appropriate, the Company
shall report the payments made hereunder by (i) filing the appropriate 1099
forms for this amount, and (ii) making any other reports required by law.
(r) TAXES. Executive agrees to comply, on a timely
basis, with all tax reporting requirements applicable to the receipt of the
payments and other compensation received hereunder and to timely pay all taxes
due with respect to such amounts.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
EXECUTIVE:
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Frank D. Osborn
COMPANY:
SOUTHERN STAR COMMUNICATIONS, INC.
By: /s/ WILLIAM S. BANOWSKY, JR.
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Name: William S. Banowsky, Jr.
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Title: Executive Vice President
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ANNEX I
EMPLOYMENT AGREEMENT
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ANNEX II
EMPLOYEE BENEFIT PLANS
Capstar Broadcasting Partners, Inc. 401(k) Retirement Plan
Osborn Communications Corporation Profit Sharing Plan
Osborn Communications Corporation Deferred Compensation Plan (a non-employer
matching plan)
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ANNEX III
OPTION AGREEMENT
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ANNEX IV
SCHEDULE OF STATIONS
UNDER BINDING CONTRACT
AS OF THE EFFECTIVE TIME
STATION MARKET
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WZBQ-FM Tuscaloosa, Alabama
WPAW-FM Ft. Pierce-Stuart-Vero Beach, Florida