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EXHIBIT 10.49
EMPLOYMENT AGREEMENT
BETWEEN
CHANCELLOR MEDIA CORPORATION
AND
MATTHEW E. DEVINE
This Employment Agreement (this "Agreement") is made and entered into on
May 18, 1998, to be effective as of April 17, 1998 (the "Effective Date"),
between Chancellor Media Corporation, a Delaware corporation (the "Company"),
Chancellor Media Corporation of Los Angeles, a Delaware corporation ("Los
Angeles") and Matthew E. Devine (the "Executive"), residing at 3101 Cumberland
Court, Colleyville, TX 76034.
W I T N E S S E T H:
WHEREAS, the Company, Los Angeles and the Executive are parties to an
existing Employment Agreement dated effective as of September 4, 1997 (the
"Prior Employment Agreement"); and
WHEREAS, in connection with certain management changes at the Company, the
Company and the Executive desire to amend and restate in its entirety the Prior
Employment Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations hereinafter set forth, the parties agree as follows:
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 the greater of (a) (i) the total of the Annual
Bonuses paid hereunder with respect to the Employment Term, divided by (ii) the
length of such portion of the Employment Term in years (including fractions) as
falls on or prior to the last December 31 thereof and (b) One Million Two
Hundred Thousand Dollars ($1,200,000).
"Base Salary" shall mean the annual base salary payable to the Executive at
the rate set forth in Section 4.
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"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 (12) 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 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 the 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 or 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)
the majority of the Board is composed of members who (i) have served less than
twelve (12) months and (ii) were not approved by a majority of the Board at the
time of their election or appointment.
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"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 the Company on the Effective Date; provided, however, any expansion of
the Company's business into other media businesses, including, without
limitation, radio stations in small- or medium-sized markets, television,
outdoor advertising, and international media opportunities, shall not constitute
a Change in Operations. 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 (12) consecutive month period during
the Employment Term which begins on the Effective Date and each annual
anniversary thereof.
"Employment Inducements" shall mean any compensation, including, without
limitation, signing bonuses and stock options, that are paid or granted to
senior officers of the Company in connection with such officers' initial hiring
by the Company, or in connection with any amendments to or extensions of the
term of such senior officers' employment agreements with the Company.
"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 have the meaning ascribed to such term 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 Jeffrey A. Marcus or
Thomas O. Hicks, (c) any adverse change in the Executive's job responsibilities
(except for responsibilities relating to acquisitions), duties, functions,
status, offices, title, perquisites or support staff, (d) relocation of the
Executive's regular work address by more than twenty (20) miles without his
consent, (e) a Change in Operations, or (f) 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 (e) or (f) 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 1998 Chancellor Media Corporation
Non-Qualified Stock Option Plan, as amended from time to time, and any successor
thereto, subject to obtaining stockholder's approval of the Option Plan (which
will be submitted to the Company's stockholders at the 1998 annual meeting of
stockholders with the recommendation of the Board).
"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 ninety (90) working
days (excluding vacation) in any twelve (12) 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.
"Prior Employment Agreement" shall be as defined in the Recitals to this
Agreement.
"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 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:
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(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 ninety-first (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.
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 (5th) 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.
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3. TITLE AND DUTIES
(a) The Executive's job title shall be Senior Vice-President and Chief
Financial Officer of the Company (and any new multi-media company formed with
the Company). During the Employment Term the Executive shall have such authority
and duties as are usual and customary for such position, and shall perform such
additional services and duties as the Board may from time to time designate
consistent with such position.
(b) The Executive shall report solely to the Chief Executive Officer.
Certain other senior officers of the Company, designated from time to time by
the Chief Executive Officer, may report, directly or indirectly through other
senior officers designated from time to time by the Chief Executive Officer, to
the Executive, and the Executive shall be responsible for reviewing the
performance of such senior officers 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:
(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; and
(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; 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 Five Hundred Thousand Dollars
($500,000) for the first (1st) Contract Year with increases of Twenty Five
Thousand Dollars ($25,000) per year for each subsequent Contract Year.
(b) Annual Incentive Bonus. The Executive shall be entitled to an Annual
Bonus for each calendar year during which he is employed hereunder. Such Annual
Bonus for
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any such calendar year shall be equal to two and one-half percent (2.5%) of the
excess, if any, of Broadcast Cash Flow for the portion of such calendar year
during which the Executive is employed over the Broadcast Cash Flow Target for
such portion of such calendar year, but in no event more than Two Million
Dollars ($2,000,000) in any calendar year or, for the calendar year, if any, in
which this contract terminates, the product of Two Million Dollars ($2,000,000)
and the fraction of such calendar year which precedes the date of such
termination. 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 (4)
anniversaries thereof on which the Executive remains employed
hereunder, the Executive shall be granted an Option to purchase One
Hundred Twenty Thousand (120,000) shares of Common Stock. In the event
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 Six Hundred
Thousand (600,000) minus the number of Options previously granted
pursuant to the immediately preceding sentence.
(ii) All Options described in paragraph (i) 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 System (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 (10) 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
on the Nasdaq National Market System; (E) each Option shall be
evidenced by, and subject to, an Option Agreement; and (F) the number
of shares granted shall be subject to adjustment for any subsequent
stock splits.
(iii) The Option Agreements shall specify that the Options shall
remain exercisable for the periods described in paragraph (ii) above
notwithstanding any Termination of Employment.
(d) Vacation. During each complete twelve (12) month period of the
Employment Term, the Executive shall be entitled to no fewer than four (4) weeks
of paid
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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).
(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 Irving, Texas.
(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.
(i) Most Favored Benefits. If the Company shall provide employment related
benefits (including, without limitation, benefits of the type referred to by
clauses (a)
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through (h) of this Section 4) in an aggregate amount greater than or on more
favorable terms and conditions (on an aggregate basis) as are granted to any
other senior executive of the Company (except for Employment Inducements and
benefits provided to the Chief Executive Officer or Chief Operating Officer of
the Company), the Executive shall be provided such benefits in substantially
comparable amount and/or under the substantially comparable terms and
conditions, as applicable, on an aggregate basis.
(j) Execution Bonus. The Executive shall be paid or granted, as the case
may be, the following Employment Inducements in connection with the execution of
this Agreement, and in lieu of any and all rights under the Prior Employment
Agreement:
(i) Within fifteen (15) days after the execution and delivery of
this Agreement, the Company shall pay to the Executive a one-time
execution bonus in the gross amount of One Million Dollars
($1,000,000).
(ii) Within thirty (30) days after the execution and delivery of
this Agreement, the Company shall make a one-time cash payment to the
Executive in a gross amount such that the net payments retained by the
Executive after payment of any Excise Tax with respect to such payment
shall equal Two Million Dollars ($2,000,000).
(iii) The Executive shall be granted an option to purchase Six
Hundred Thousand (600,000) shares of Common Stock (collectively, the
"Execution Options"), subject to the following terms and conditions:
(A) the Execution Options shall be granted under and subject to the
Option Plan; (B) the exercise price of the Execution Options shall be
$42.125 per share (the price per share at the close of trading on April
28, 1998); (C) the Executive Options shall be vested on the date of
grant; (D) each Executive Option shall be exercisable for the ten (10)
year period following the date of grant; and (E) each Executive Option
shall be evidenced by, and subject to, an Option Agreement.
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.
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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), (i) any Annual Bonus earned
but not yet paid with respect to the preceding calendar year, (ii) 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), (iii) not later than ninety (90) days after
such termination, in a lump sum, all Base Salary earned through the date of such
termination, and (iv) not later than ninety (90) days after such termination, in
a lump sum, any Annual Bonus earned with respect to that portion of the calendar
year prior to such termination.
(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 the last
sentence of this subsection (b), the Company shall make a one-time cash payment
to the Executive in a gross amount such that the net payments retained by the
Executive after payment of any applicable Excise Tax with respect to such
payment shall equal Two Million Dollars ($2,000,000). Such payment shall be made
at the time of any such termination without Cause or within thirty (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 Section 7(b), shall
continue to pay him his Base Salary as set forth in Section 4(a)
through the earlier of (A) the fifth (5th) anniversary of the Effective
Date or (B) the second (2nd) anniversary of such termination of
employment (the earlier of such dates, the "Cessation 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 his Average Bonus, and on the last day
of the calendar year which includes the Cessation Date make a payment
to him equal to the product of his Average Bonus and the fraction of
such calendar year which precedes the Cessation Date.
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(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 (2) 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 payment shall be in full satisfaction of all
obligations of the Company to the Executive hereunder (other than those
obligations set forth in subsection (a)) and shall be conditioned on the
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 the Executive in
violation hereof) shall be considered confidential.
The Executive further 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).
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(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 media company.
(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, (i) any radio or television
broadcasting station serving the same "Area of Dominant Influence" (as reported
by Arbitron) as any of the radio or television broadcasting stations owned by
the Company or its subsidiaries or affiliates, or the subsidiaries or affiliates
of any of the Company's direct or indirect stockholders owning more than twenty
percent (20%) of the Company (collectively the "Protected Companies"), or (ii)
any person, firm, corporation or other entity, or in connection with any
business enterprise, that is directly or indirectly engaged in any of the radio,
television, outdoor advertising or related business activities in which the
Company and its subsidiaries or the Protected Companies have significant
involvement (collectively, the "Competing Business Areas"), in each case 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).
(d) The restrictions in this Section 7, to the extent applicable, 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 Section 7(c) may be to prevent him from working in the Competing Business
Areas 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.
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 attorneys' fees
and expenses as such fees and expenses are incurred (subject to an undertaking
from the Executive to repay such advances if
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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 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 THE EXECUTIVE
The Executive represents and warrants to the Company that (a) the 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) the 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 and the fees of the
Executive's counsel and experts unless the finder of fact determines that the
Company is the prevailing party in such arbitration.
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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.
16. PRIOR EMPLOYMENT AGREEMENT
This Agreement shall supersede and replace in its entirety the Prior
Employment Agreement and, except as specifically described herein, all of the
Executive's and the Company's rights and obligations under the Prior Employment
Agreement are extinguished upon the effectiveness of this Agreement, and the
Executive acknowledges and agrees that he shall have no rights under the Prior
Employment Agreement, including, without limitation, any rights under Section 6
of the Prior Employment Agreement. The Executive hereby withdraws any and all
termination notices previously delivered in connection with the Prior Employment
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 inserted for convenience of reference only and shall not be a
part of or control or affect the meaning of any provision hereof.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first written above.
CHANCELLOR MEDIA CORPORATION
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By: /s/ THOMAS O. HICKS
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Thomas O. Hicks
Chairman of the Board
Interim President and Chief Executive Officer
/s/ MATTHEW E. DEVINE
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Matthew E. Devine
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