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EXHIBIT 10.32
EMPLOYMENT AGREEMENT
BETWEEN CHANCELLOR MEDIA CORPORATION AND JAMES E. DE CASTRO
This Employment Agreement ("Agreement") is made and entered into on
September 4, 1997, effective as of the closing date of the Merger (the
"Effective Date"), between Evergreen Media Corporation, a Delaware corporation
("Evergreen," but to be known, following the Merger, as Chancellor Media
Corporation and referred to herein, both before and after the Merger, as the
"Company"), Evergreen Media Corporation of Los Angeles, a Delaware corporation
(to be known, following the Merger, as Chancellor Media Corporation of Los
Angeles and referred to herein, both before and after the Merger, as "Los
Angeles") and James E. de Castro (the "Executive"), residing at 1025 Seneca
Road, Wilmette, Illinois 60091.
WITNESSETH:
WHEREAS, Evergreen and the Executive are parties to an existing
Employment Agreement effective January 1, 1995;
WHEREAS, in connection with the merger of Chancellor Broadcasting
Company and Chancellor Radio Broadcasting Company (collectively "Chancellor")
with and into subsidiaries of Evergreen and Evergreen's subsequent change of
name to Chancellor Media Corporation (collectively, the "Merger"), the Company
and the Executive desire to amend and restate the existing Employment
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and obligations hereinafter set forth, the parties agree as follows:
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1. DEFINITIONS
The following terms used in this Agreement shall have the meaning
specified below unless the context clearly indicates the contrary:
"Annual Bonus" shall mean the annual incentive bonus payable to the
Executive described in Section 4.
"Average Bonus" shall mean (a) the total of the Annual Bonuses paid
hereunder with respect to the Employment Term, divided by (b) the length of
such portion of the Employment Term in years (including fractions) as falls on
or prior to the last December 31 thereof.
"Base Salary" shall mean the annual base salary payable to the
Executive at the rate set forth in Section 4.
"Board" shall mean the Board of Directors of the Company.
"Broadcast Cash Flow" for any accounting period shall mean station
operating income for such accounting period for the stations owned or operated
by the Company as of the last day of such accounting period on a consolidated
basis excluding depreciation, amortization and corporate, general and
administrative expenses, calculated in a manner consistent with the
presentation of "broadcast cash flow" in the Company's periodic reports filed
with the Securities Exchange Commission.
"Broadcast Cash Flow Target" for any accounting period shall mean one
hundred five percent (105%) of the station operating income for the
corresponding accounting period falling twelve months earlier on a consolidated
basis excluding depreciation, amortization and corporate, general and
administrative expenses, calculated in a manner consistent with the
presentation of "broadcast cash flow" in the Company's periodic reports filed
with the Securities
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Exchange Commission, with respect to the stations owned or operated by the
Company as of the last day of the accounting period for which the Broadcast
Cash Flow Target is calculated.
"Cause" shall mean the Executive's (a) habitual neglect of his
material duties or failure to perform his material obligations under this
Agreement, (b) refusal or failure to follow lawful directives of Board, (c)
commission of an act of fraud, theft or embezzlement, or (d) conviction of a
felony or other crime involving moral turpitude; provided, however, that the
Company shall give the Executive written notice of any actions alleged to
constitute Cause under subsections (a) and (b) above, and the Executive shall
have a reasonable opportunity (as specified by the Compensation Committee) to
cure any such alleged Cause.
"Change in Control" shall mean (a) the sale, lease or other transfer
of all or substantially all of the assets of the Company to any person or group
(as such term is used in Section 13(d)(3) of the Securities Exchange Act of
1934, as amended); (b) the adoption by the stockholders of the Company of a
plan relating to the liquidation or dissolution of the Company; (c) the merger
or consolidation of the Company with or into another entity or the merger of
another entity into the Company or any subsidiary thereof with the effect that
immediately after such transaction the stockholders of the Company immediately
prior to such transaction (or their Related Parties) hold less than fifty
percent (50%) of the total voting power of all securities generally entitled to
vote in the election of directors, managers or trustees of the entity surviving
such merger of consolidation; (d) the acquisition by any person or group of
more than fifty percent (50%) of the voting power of all securities of the
Company generally entitled to vote in the election of directors of the Company;
or (e) that the majority of the Board is composed of members who
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(i) have served less than twelve months and (ii) were not approved by a
majority of the Board at the time of their election or appointment.
"Change in Operations" shall mean a change in the business operating
strategies of the Company (e.g. material cost controls or other material
restrictions on the Company's ability to increase its gross revenues) which are
imposed upon the Executive without his consent, and, in his reasonable
judgement, are fundamentally different from the business operating strategies
in effect at Evergreen Media Corporation during the five year period preceding
the Effective Date. Any dispute as to whether a Change of Operations has
occurred shall be resolved pursuant to Section 14.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock" shall mean $0.01 par value common stock of the Company.
"Compensation Committee" shall mean the Compensation Committee of the
Board.
"Consumer Price Index" shall mean the Consumer Price Index for All
Urban Consumers (1982-84=100) for all cities as reported by the United States
Bureau of Labor Statistics.
"Contract Year" shall mean each twelve consecutive month period during
the Employment Term which begins on the Effective Date or an anniversary
thereof.
"Employment Term" shall mean the period beginning on the Effective
Date and ending on the close of business on the effective date of the
Executive's termination of employment with the Company.
"Excise Tax" shall mean the taxes imposed by Code Section 4999.
"Expiration Date" shall be as defined in Section 2.
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"Good Reason" shall mean (a) the Company's material breach of any
provision hereof, (b) the Executive no longer directly reporting to Scott K.
Ginsburg, (c) any adverse change in the Executive's job responsibilities,
duties, functions, status, offices, title, perquisites or support staff, (d)
relocation of the Executive's regular work address without his consent, (e) a
Change in Operations; (f) the Executive's failure, at any time, to be permitted
to serve as a member of the Board or (g) a Change in Control, provided,
however, that the Executive shall give the Company written notice of any
actions (other than those set out in subsections (f) or (g) above) alleged to
constitute Good Reason and the Company shall have a reasonable opportunity to
cure any such alleged Good Reason.
"Option Agreement" shall mean the agreement between the Executive and
the Company pursuant to which any Option is granted to the Executive.
"Option Plan" shall mean the Company's 1995 Non-Qualified Stock Option
Plan, as amended from time to time, and any successor thereto.
"Options" shall mean the non-qualified stock options to be granted to
the Executive hereunder.
"Permanent Disability" shall mean the Executive's inability to perform
the duties contemplated by this Agreement by reason of a physical or mental
disability or infirmity which has continued for more than 90 working days
(excluding vacation) in any twelve consecutive month period as determined by
the Board. The Executive agrees to submit such medical evidence regarding such
disability or infirmity as is reasonably requested by the Board.
"Related Parties" shall mean with respect to any person (a) the spouse
and lineal ascendants and descendants of such person, and any sibling of any of
such persons and (b) any
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trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or persons beneficially holding an eighty
percent (80%) or more controlling interest of which consist of persons referred
to in subsection (a) above.
"Termination of Employment" shall mean the first to occur of the
following events:
(a) the date of death of the Executive;
(b) the effective date specified in the Company's written notice to
the Executive of the termination of his employment as a result of his Permanent
Disability, which effective date shall not be earlier than the 91st working day
(excluding vacation) following the commencement of the Executive's inability to
perform his duties hereunder;
(c) the effective date specified in the Company's written notice to
the Executive of the Company's termination of his employment without Cause;
(d) the effective date specified in the Company's written notice to
the Executive of the Company's termination of his employment for Cause;
(e) the effective date specified in the Executive's written notice to
the Company of the Executive's termination of his employment for Good Reason;
(f) the effective date specified in the Executive's written notice to
the Company of the Executive's termination of his employment without Good
Reason; and
(g) the date the Executive's employment terminates pursuant to
Section 2.
"Termination without Cause" shall mean a termination by the Company of
the Executive's employment without Cause.
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2. EMPLOYMENT
The Company agrees to continue the employment of the Executive, and
the Executive agrees to continue to provide services to the Company from the
date of this Agreement until the close of business on the fifth anniversary of
the Effective Date (the "Expiration Date"), unless the Executive's employment
is earlier terminated pursuant to a Termination of Employment. The Executive
will serve the Company subject to the general supervision, advice and direction
of the Board and the Chief Executive Officer and upon the terms and conditions
set forth in this Agreement.
3. TITLE AND DUTIES
(a) The Executive's job title shall be Senior Vice-President and Chief
Operating Officer of the Company. During the Employment Term the Executive
shall have such authority and duties as are customary in such position, and
shall perform such other services and duties as the Board may from time to time
designate consistent with such position. During the Employment Term, the
Company shall also nominate the Executive to serve as a member of the Board and
upon such nomination Executive shall agree to so serve.
(b) The Executive shall report solely to the Chief Executive Officer.
All other senior radio operating executives of the Company shall report (not
necessarily exclusively), directly or indirectly through other senior officers,
to the Executive, and the Executive shall be responsible for reviewing the
performance of such senior radio operating executives of the Company.
(c) The Executive shall devote his full business time and best efforts
to the business affairs of the Company; however, the Executive may devote
reasonable time and attention to:
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(i) serving as a director of, or member of a committee of
the directors of, any not-for-profit organization or engaging in other
charitable or community activities;
(ii) serving as a director of, or member of a committee of
the directors of, the corporations or organizations for which the Executive
presently serves in such capacity, and such other corporations and
organizations that the Board may from time to time approve in the future; and
(iii) with the approval of the Board, which approval shall
not be withheld unreasonably, engaging in certain ancillary activities not
directly competitive with the business of the Company (such as the
establishment of a satellite broadcasting business in association with the
Company or the establishment or purchase of stations in such municipalities as
are mutually agreed to by the Executive and the Board for activities such as
simulcasting of programming provided by the Company), so long as such
activities do not interfere unreasonably with the Executive's duties hereunder;
provided, that except as specified above, the Executive may not accept
employment with any other individual or other entity, or engage in any other
venture which is indirectly or directly in conflict or competition with the
then existing business of the Company.
4. COMPENSATION AND BENEFITS
(a) Base Compensation. During the Employment Term, the Company shall
pay the Executive, in installments according to the Company's regular payroll
practice, Base Salary at the annual rate of Nine Hundred Thousand Dollars
($900,000) for the first Contract Year; and for each subsequent Contract Year
an amount equal to the product of
(i) the Base Salary for the immediately preceding Contract
Year and
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(ii) the ratio of the Consumer Price Index for the last
complete calendar month in such preceding Contract Year to the Consumer Price
Index for the same month in the year preceding such preceding Contract Year.
(b) Annual Incentive Bonus. The Executive shall be entitled to an
Annual Bonus for each calendar year on the last day of which he is employed
hereunder and also for the calendar year, if any, in which this contract
expires pursuant to Section 2. Such Annual Bonus for any such calendar year
shall be equal to five percent (5%) of the excess, if any, of Broadcast Cash
Flow for the portion of such calendar year which precedes the Expiration Date
over the Broadcast Cash Flow Target for such accounting period, but in no event
more than the product of Three Million Dollars ($3,000,000) and the fraction of
such calendar year which precedes the Expiration Date. The Executive's Annual
Bonus earned with respect to each calendar year shall be paid at the same time
as annual incentive bonuses with respect to that calendar year are paid to
other senior executives of the Company generally, but in no event later than
March 31 of the following calendar year.
(c) Stock Options.
(i) On the Effective Date and each of the first four
anniversaries thereof on which the Executive remains employed hereunder the
Executive shall be granted an Option to purchase 100,000 shares of Common
Stock. In the event that the Executive's employment hereunder is terminated by
the Company without Cause or by the Executive for Good Reason prior to the
Expiration Date, the Executive shall be granted, as of the date of such
Termination of Employment, a number of Options equal to 500,000 minus the
number of Options granted pursuant to the immediately preceding sentence.
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(ii) In recognition of the Executive's rights under Section
4(c)(i) of his existing Employment Agreement, on the Effective Date the Company
shall grant the Executive an Option to purchase 112,500 shares of Common Stock.
(iii) All Options described in paragraphs (i) and (ii) shall
be granted subject to the following terms and conditions: (A) the Options shall
be granted under and subject to the Option Plan; (B) the exercise price of the
Options shall be the last reported sale price of the Common Stock on the Nasdaq
National Market (or other principal trading market for the Common Stock) at the
close of the trading day immediately preceding the date as of which the grant
is made; (C) each Option shall be vested on the date of grant; (D) each Option
shall be exercisable for the ten year period following the date of grant
subject, however, to such approval by the shareholders of the Company as is
sufficient to satisfy the requirements for listing of the common stock of
Chancellor Media Corporation on the Nasdaq National Market System; and (E) each
Option shall be evidenced by, and subject to, an Option Agreement.
(iv) The Option Agreements shall specify that the Options
shall remain exercisable for the periods described in paragraph (iii) above
notwithstanding any Termination of Employment.
(d) Vacation. During each complete 12 month period of the Employment
Term, the Executive shall be entitled to no fewer than four weeks of paid
vacation (unless, based on his length of service with the Company and his
position with the Company, the Executive is entitled to a greater number of
weeks of paid vacation under the Company's generally applicable vacation
policy, as determined by the Compensation Committee).
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(e) Employee Benefit Plans. During the Employment Term, the Executive
shall be entitled to participate in all pension, profit sharing and other
retirement plans, all incentive compensation plans and all group health,
hospitalization and disability insurance plans and other employee welfare
benefit plans in which other senior executives of the Company may participate
on terms and conditions no less favorable than those which apply to such other
senior executives of the Company.
(f) Company Payment of Health Benefit Coverage. During the Employment
Term, the Company shall pay the amount of premiums or other cost incurred for
coverage of the Executive and his eligible spouse and dependent family members
under the applicable Company health benefits arrangement (consistent with the
terms of such arrangement).
(g) Life Insurance Policy. In addition to the insurance coverage
contemplated by Section 4(e), during the Employment Term the Company shall
maintain in effect term life insurance coverage for the Executive with a death
benefit of at least Five Hundred Thousand Dollars ($500,000), subject to the
Executive's insurability at standard rates and with the beneficiary or
beneficiaries thereof designated by the Executive. Notwithstanding Section 9 of
this Agreement, such life insurance policy or policies may be assigned to a
trust for the benefit of any beneficiary designated by the Executive.
(h) Automobile and Parking Allowance; Other Benefits.
(i) During the Employment Term, the Company shall either
provide the Executive with, or pay or reimburse the Executive for (A) his
purchase or lease of an automobile of the size and class of the Executive's
current Company-provided automobile; and (B) parking space at the Company's
corporate office maintained in Chicago, Illinois.
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(ii) During the Employment Term, the Company shall provide
the Executive with, or pay or reimburse the Executive for, the cost incurred
for membership of the Executive and his spouse and dependent family members in
the athletic club of Executive's choosing and in the country club of
Executive's choosing.
5. REIMBURSEMENT OF EXPENSES
In addition to the compensation provided for under Section 4 hereof,
upon submission of proper vouchers, the Company will pay or reimburse the
Executive for all normal and reasonable travel and entertainment expenses
incurred by the Executive during the Employment Term in connection with the
Executive's responsibilities to the Company.
6. TERMINATION BENEFITS
(a) Upon the termination of the Executive's employment with the
Company for any reason, the Company shall provide the Executive (or, in the
case of his death, his estate or other legal representative), any Annual Bonus
earned but not yet paid with respect to the preceding calendar year, all
benefits due him under the Company's benefits plans and policies for his
services rendered to the Company prior to the date of such termination
(according to the terms of such plans and policies), and, not later than 90
days after such termination, in a lump sum, all Base Salary earned through the
date of such termination. The Executive shall be entitled to the payments and
benefits described below only as each is applicable to such termination of
employment.
(b) In the event that the Executive's employment hereunder is
terminated by the Company without Cause or by the Executive for Good Reason
(but not by reason of expiration or non-renewal of this Agreement), and subject
to this subsection (b), the Company shall make a
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one-time cash payment to the Executive in a gross amount such that the net
payments retained by Executive after payment of any Excise Tax with respect to
such payment shall equal Five Million Dollars ($5,000,000). Such payment shall
be made at the time of any such termination without Cause or within 30 days of
any such resignation for Good Reason. Such payment shall be in full
satisfaction of all obligations of the Company to Executive hereunder (other
than those obligations set forth in subsection (a)) and shall be conditioned on
Executive giving a general release of the Company and affiliates in the form
used generally by the Company in the case of the termination of employment of
senior executives.
(c) (i) In the event that the Executive elects to terminate his
employment hereunder other than for Good Reason, the Company, in consideration
for the Executive's agreement in subsection 7(b), shall continue to pay him his
Base Salary as set forth in Section 4(a) through the fifth anniversary of the
Effective Date.
(ii) In addition, in such event, the Company may, by written
notice to the Executive given no later than 15 days following his termination
of employment, elect to require the Executive to observe the provisions of
Section 7(c) hereof. In such event, the Company shall, on the last day of each
calendar year through December 31, 2002 make a payment to him equal to the
product of his Average Bonus and the fraction of such calendar year which
precedes the Expiration Date.
(d) In the event that the Executive's employment is terminated by
reason of expiration or non-renewal of this Agreement the Company shall make a
one time cash payment to the Executive equal to two times the amount of his
annual Base Salary payable for the Contract Year ending on (or in which falls)
the date of Termination of Employment. Such payment shall be made at the time
of such Termination of Employment. Such
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payment shall be in full satisfaction of all obligations of the Company to
Executive hereunder (other than those obligations set forth in subsection (a))
and shall be conditioned on Executive giving a general release of the Company
and affiliates in the form used generally by the Company in the case of the
termination of employment of senior executives.
(e) In the event of any Termination of Employment, the Executive shall
not be required to seek other employment to mitigate damages, and any income
earned by the Executive from other employment or self-employment shall not be
offset against any obligations of the Company to the Executive under this
Agreement.
7. PROTECTED INFORMATION; PROHIBITED SOLICITATION
(a) The Executive hereby recognizes and acknowledges that during the
course of his employment by the Company, the Company will furnish, disclose or
make available to the Executive confidential or proprietary information related
to the Company's business, including, without limitation, customer lists, ideas
and formatting and programming concepts and plans, that such confidential or
proprietary information has been developed and will be developed through the
Company's expenditure of substantial time and money, and that all such
confidential information could be used by the Executive and others to compete
with the Company. The Executive hereby agrees that all such confidential or
proprietary information shall constitute trade secrets, and further agrees to
use such confidential or proprietary information only for the purpose of
carrying out his duties with the Company and not to disclose such information
unless required to do so by subpoena or other legal process. No information
otherwise in the public domain (other than by an act of Executive in violation
hereof) shall be considered confidential.
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The Executive agrees that all memoranda, notices, files, records and other
documents concerning the business of the Company, made or compiled by the
Executive during the period of his employment or made available to him, shall
be the Company's property and shall be delivered to the Company upon its
request therefor and in any event upon the termination of the Executive's
employment with the Company, provided, however, that the Executive shall be
permitted to retain copies of personal correspondence generated or received by
him during the Employment Term, subject to the use restrictions of this Section
7(a).
(b) The Executive hereby agrees, in consideration of his employment
hereunder and in view of the confidential position to be held by the Executive
hereunder, that after any Termination of Employment, and through the Expiration
Date the Executive will not directly or indirectly induce any employee of any
of the Protected Companies (as defined below) to terminate such employment or
to become employed by any other radio broadcasting station.
(c) Should the Company make the election set forth in Section
6(c)(ii), the Executive further agrees that, from and after the Termination of
Employment and through the Expiration Date, he shall not be employed by or
perform activities on behalf of, or have an ownership interest in, any radio
broadcasting station serving the same "Area of Dominant Influence" (as reported
by Arbitron) as any of the radio broadcasting stations owned by the Company or
its subsidiaries or affiliates, or the subsidiaries or affiliates of the
Company's direct or indirect stockholders (collectively the "Protected
Companies"), at the effective time of such Termination of Employment (other
than beneficial ownership of up to five percent (5%) of the outstanding voting
stock of a publicly traded company that owns such a competitor).
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(d) The restrictions in this Section 7 shall survive the termination
of this Agreement and shall be in addition to any restrictions imposed upon the
Executive by statute or at common law.
(e) The parties hereby acknowledge that the restrictions in this
Section 7 have been specifically negotiated and agreed to by the parties hereto
and are limited only to those restrictions necessary to protect the Protected
Companies from unfair competition. The parties hereby agree that if the scope
or enforceability of any provision, paragraph or subparagraph of this Section 7
is in any way disputed at any time, and should a court find that such
restrictions are overly broad, the court may modify and enforce the covenant to
the extent that it believes to be reasonable under the circumstances. Each
provision, paragraph and subparagraph of this Section 7 is separable from every
other provision, paragraph, and subparagraph and constitutes a separate and
distinct covenant. The Executive acknowledges that the Protected Companies
operate in major and medium sized markets throughout the United States and that
the effect of subsection 7(c) may be to prevent him from working in the radio
business after his termination of employment hereunder.
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8. INJUNCTIVE RELIEF
The Executive hereby expressly acknowledges that any breach or
threatened breach by the Executive of any of the terms set forth in Section 7
of this Agreement may result in significant and continuing injury to the
Company, the monetary value of which would be impossible to establish.
Therefore, the Executive agrees that the Company shall be entitled to apply for
injunctive relief in a court of appropriate jurisdiction. The provisions of
this Section 8 shall survive the Employment Term.
9. PARTIES BENEFITED; ASSIGNMENTS
This Agreement shall be binding upon the Executive, his heirs and his
personal representative or representatives, and upon the Company and Los
Angeles and their respective successors and assigns. Neither this Agreement nor
any rights or obligations hereunder may be assigned by the Executive, other
than by will or by the laws of descent and distribution.
10. NOTICES
Any notice required or permitted by this Agreement shall be in
writing, sent by registered or certified mail, return receipt requested,
addressed to the Board and the Company at its then principal office, or to the
Executive at the address set forth in the preamble, as the case may be, or to
such other address or addresses as any party hereto may from time to time
specify in writing for the purpose in a notice given to the other parties in
compliance with this Section 10. Notices shall be deemed given when received.
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11. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAW PRINCIPLES.
12. INDEMNIFICATION AND INSURANCE; LEGAL EXPENSES
The Company shall indemnify the Executive to the fullest extent
permitted by the laws of the State of Delaware, as in effect at the time of the
subject act or omission, and shall advance to the Executive reasonable
attorney's fees and expenses as such fees and expenses are incurred (subject to
an undertaking from the Executive to repay such advances if it shall be finally
determined by a judicial decision which is not subject to further appeal that
the Executive was not entitled to the reimbursement of such fees and expenses)
and he will be entitled to the protection of any insurance policies the Company
may elect to maintain generally for the benefit of its directors and officers
("Directors and Officers Insurance") against all costs, charges and expenses
incurred or sustained by him in connection with any action, suit or proceeding
to which he may be made a party by reason of his being or having been a
director, officer or employee of the Company or any of its subsidiaries or his
serving or having served any other enterprise as a director, officer or
employee at the request of the Company (other than any dispute, claim or
controversy arising under or relating to this Agreement). The Company covenants
to maintain during the Employment Term for the benefit of the Executive (in his
capacity as an officer and director of the Company) Directors and Officers
Insurance providing benefits to the Executive no less favorable, taken as a
whole, than the benefits provided to the Executive by the Directors and
Officers Insurance maintained by the Company on the date hereof; provided,
however, that the
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Board may elect to terminate Directors and Officers Insurance for all officers
and directors, including the Executive, if the Board determines in good faith
that such insurance is not available or is available only at unreasonable
expense.
13. REPRESENTATIONS AND WARRANTIES OF EXECUTIVE
Executive represents and warrants to Company that (a) Executive is
under no contractual or other restriction which is inconsistent with the
execution of this Agreement, the performance of his duties hereunder or the
other rights of Company hereunder, and (b) Executive is under no physical or
mental disability that would hinder the performance of his duties under this
Agreement.
14. DISPUTES
Any dispute or controversy arising under, out of, in connection with
or in relation to this Agreement shall, at the election and upon written demand
of either the Executive or the Company, be finally determined and settled by
arbitration in the city of the Company's headquarters in accordance with the
rules and procedures of the American Arbitration Association, and judgment upon
the award may be entered in any court having jurisdiction thereof. The Company
shall pay the costs and expenses of such arbitration but shall only pay the
fees of the Executive's counsel and experts if the finder of fact determines
that the Executive is the prevailing party in such arbitration.
15. FACILITY OF PAYMENT
All cash payments to be made by the Company to or on behalf of the
Executive hereunder shall be an obligation of and made by Los Angeles.
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16. PRIOR EMPLOYMENT AGREEMENT
Except as specifically described herein, all of Executive's and
Company's rights and obligations under the prior Employment Agreement are
extinguished upon the effectiveness of this Agreement.
17. MISCELLANEOUS
The provisions of this Agreement shall survive the termination of the
Executive's employment with the Company. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof. This Agreement
supersedes any prior written or oral agreements or understandings between the
parties relating to the subject matter hereof. No modification or amendment of
this Agreement shall be valid unless in writing and signed by or on behalf of
the parties hereto. A waiver of the breach of any term or condition of this
Agreement shall not be deemed to constitute a waiver of any subsequent breach
of the same or any other term or condition. This Agreement is intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations. If any provision of this
Agreement, or the application thereof to any person or circumstance, shall, for
any reason and to any extent, be held invalid or unenforceable, such invalidity
and unenforceability shall not affect the remaining provisions hereof and the
application of such provisions to other persons or circumstances, all of which
shall be enforced to the greatest extent permitted by law. The compensation
provided to the Executive pursuant to this Agreement shall be subject to any
withholdings and deductions required by any applicable tax laws. Any amounts
payable under this Agreement to the Executive after the death of the Executive
shall be paid to the Executive's estate or legal representative. The headings
in this Agreement are
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inserted for convenience of reference only and shall not be a part of or
control or affect the meaning of any provision hereof.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first written above.
Evergreen Media Corporation
By
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By: Scott K. Ginsburg
Title: Chief Executive Officer
Evergreen Media Corporation of Los Angeles
By
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By: Scott K. Ginsburg
Title: Chief Executive Officer
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James E. de Castro
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