1
EXHIBIT 10.59
AGREEMENT
Agreement dated as of March 15, 1999 (the "Agreement") between
Xxxxxxx X. Xxxxxx ("Executive"), Xxxxx Xxxx Marcus ("Spouse"), Chancellor Media
Corporation (the "Company") and Chancellor Media Corporation of Los Angeles
("Los Angeles").
WHEREAS, the Executive, the Company and Los Angeles are
parties to an Amended and Restated Employment Agreement, dated as of October 1,
1998, and effective as of June 1, 1998, pursuant to which the Company has
employed the Executive as President and Chief Executive Officer of the Company
(the "Employment Agreement");
WHEREAS, the parties desire to jointly terminate Executive's
employment with the Company, and to terminate the Employment Agreement after
continuing the effectiveness of certain provisions of the Employment Agreement
by incorporation pursuant to the terms of this Agreement;
NOW THEREFORE, for and in consideration of the mutual
covenants, agreements, and promises set forth herein, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Executive, Spouse, the Company and Los Angeles hereby agree as
follows:
1. Termination: The Executive hereby resigns from his
employment with the Company as of the date of this Agreement (the "Termination
Date"). Executive further agrees to and does hereby resign effective as of the
Termination Date from any other appointments or positions which he may hold with
the Company or any of its subsidiaries, including without limitation, his
position as an officer of the Company and each of its subsidiaries; provided,
however, Executive does not resign his position on the Board of Directors of the
Company, Chancellor Mezzanine Holdings Corporation, or Los Angeles. Executive
agrees to execute all further documents which the Company may request of him to
effectuate such employment resignations.
2. Termination Payments; Benefits: In connection with such
termination of employment and the execution of this Agreement, as soon as
practicable after the execution and delivery of this Agreement (but not later
than one (1) business day after the date hereof), the Company shall cause to be
paid to Executive and Spouse (i) a one-time cash severance payment of
$6,250,000, (ii) a pro-rated bonus for the fiscal year of the Company ended
December 31, 1998, of $2,333,333, and (iii) all accrued and unpaid Base Salary
(as defined in the Employment Agreement) earned up to and through March 15,
1999. Executive shall be entitled to all benefits contemplated under his
Employment Agreement through March 15, 1999, and will be entitled to receive
reimbursement therefore after such date.
2
3. Vesting of Options: In connection with such termination of
employment and the execution of this Agreement, effective as of the Termination
Date the unvested Options (as defined in the Employment Agreement) to acquire
Six Hundred Twenty Five Thousand (625,000) shares of common stock of the Company
granted to the Executive pursuant to Section 4(d)(i) of the Employment Agreement
shall vest and be exercisable at a price of $42.125 per share. Such Options
shall remain exercisable until April 28, 2008, notwithstanding the terms of any
applicable option plan. The common stock granted upon exercise of such options
will be (i) registered by and at the expense of the Company on Form S-8 or other
appropriate form and be freely tradeable and (ii) listed or otherwise designated
for inclusion on the Nasdaq National Market or such other exchange or market on
which the common stock is traded.
4. Grant of Options: In connection with such termination of
employment and the execution of this Agreement, the Company shall grant to
Executive, effective as of the Termination Date, stock options for 800,000
shares of common stock of the Company. Such options granted pursuant to this
paragraph 4 shall vest upon the Termination Date and be exercisable for the
ten-year period following the Termination Date at the exercise price equal to
$47.0625 per share, the average last reported sale price of the common stock of
the Company on the Nasdaq National Market System for the 20 trading days ending
March 12, 1999. The common stock granted upon exercise of such options will be
(i) registered by and at the expense of the Company on Form S-8 or other
appropriate form and be freely tradeable and (ii) listed or otherwise designated
for inclusion on the Nasdaq National Market or such other exchange or market on
which the common stock is traded. The Company shall, within five business days
after the date hereof, provide Executive with an option agreement which will
provide for the grant of such options on terms no less favorable than the
provisions of the 1998 Chancellor Media Corporation Stock Option Plan and the
option agreements for the options described in paragraph 3 hereof, in each case
as modified by the provisions of this Agreement.
5. Exercisability of Options: Notwithstanding, any option plan
or other instrument governing the issuance or exercisability thereof, all
options to purchase common stock of the Company granted to the Executive
pursuant to this Agreement, the Employment Agreement or otherwise shall remain
exercisable for their respective ten-year terms. In the event a Transaction
(hereinafter defined) occurs after the date hereof but before the option is
exercised, then (and in the case of each such Transaction) the option shall
continue in existence and the optioned stock shall represent, in lieu of the
Company common stock issuable upon exercise before the Transaction, the amount
of cash, securities or other property to which the Executive would be entitled
as a stockholder of the Company with respect to the optioned stock upon
occurrence of the Transaction; provided, however, that the Executive may elect
in his sole discretion for such options to be treated in the same manner, if
different from the treatment provided in this sentence, that any other options
held by any person are treated in connection with such Transaction. A
"Transaction" means any one or more transactions in which the Company (a)
consolidates with or merges into any other person or entity and is not the
continuing or surviving corporation of that consolidation or merger, (b) permits
2
3
any other person or entity to consolidate with or merge into the Company with
the Company being the continuing or surviving corporation and, in connection
with that consolidation or merger, common stock of the Company is changed into
or exchanged for cash, stock, or other securities of any other person or entity
or any other property, (c) transfers all or substantially all of its properties
and assets to any other person or entity, or (d) effects a capital
reorganization or reclassification of common stock of the Company.
6. Office Facilities: In connection with such termination of
employment and the execution of this Agreement, the Company shall provide to the
Executive, Xxxxxx X. XxXxxxxx, Xxxx X. Xxxxxx and the Executive's employees, on
a rent free basis, use of (i) the office facilities provided to the Executive
pursuant to Section 4(k) of the Employment Agreement and (ii) the office
facilities provided to such individuals during their employment with the Company
at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (collectively, the
"Chancellor Office Space"), and (iii) the office furniture and equipment located
therein and used in connection therewith ("Chancellor Office Equipment"), for a
period from the Termination Date until the earlier of (x) the effective date of
a sublease of the Chancellor Office Space by the Company, and (y) October 31,
1999. Also, the Executive shall have the option, for sixty (60) days from the
Termination Date, to purchase any of the Chancellor Office Equipment at the
value determined by an independent appraiser mutually acceptable to the
Executive and the Company, provided that all office furniture will be valued at
the Company's cost.
7. Board of Directors: The Executive shall not be removed from
the Board of Directors of the Company during his current term.
8. Taxes: The cash payments set forth in paragraph 2 shall be
subject to applicable federal, state and local withholding taxes. Executive
agrees that, SUBJECT TO PARAGRAPH 9 HEREOF, TO THE EXTENT THAT ANY INDIVIDUAL
FEDERAL OR STATE TAXES OF ANY KIND MAY BE DUE AS A RESULT OF ANY SUCH PAYMENT TO
EXECUTIVE, EXECUTIVE SHALL BE SOLELY RESPONSIBLE FOR SUCH TAXES AND WILL
INDEMNIFY, DEFEND, AND HOLD HARMLESS THE COMPANY IN THE EVENT THERE IS ANY CLAIM
AGAINST THE COMPANY FOR SUCH TAXES. THIS PARAGRAPH SHALL NOT RELEASE THE COMPANY
OF ITS OBLIGATIONS WITH RESPECT TO WITHHOLDING.
9. Excise Taxes. In the event that taxes are imposed on the
$6,250,000 amount paid under paragraph 2(i) to the Executive pursuant to Section
4999 of the Internal Revenue Code of 1986, as amended ("Excise Taxes"), the
Company shall pay an additional amount to the Executive for Excise Taxes and
income taxes such that the net payment made to the Executive with regard to
paragraph 2(i), after the payment of such Excise Taxes and any income taxes on
amounts paid in excess of $6,250,000, shall equal $6,250,000.
3
4
10. General Release and Covenant Not to Xxx:
(a) THE EXECUTIVE AND SPOUSE, ON BEHALF OF THEMSELVES, THEIR
ATTORNEYS, HEIRS, EXECUTORS, ADMINISTRATORS AND ASSIGNS (TOGETHER THE "EXECUTIVE
PARTIES"), HEREBY GENERALLY RELEASE AND FOREVER DISCHARGE THE COMPANY, LOS
ANGELES AND THEIR RESPECTIVE PREDECESSORS, SUCCESSORS, ASSIGNS, PARENTS,
SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE PAST AND PRESENT SHAREHOLDERS,
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, PRINCIPALS, INSURERS
AND ATTORNEYS (TOGETHER THE "COMPANY PARTIES") FROM ANY AND ALL CLAIMS, DEMANDS,
LIABILITIES, SUITS, DAMAGES, LOSSES, EXPENSES, ATTORNEYS' FEES, OBLIGATIONS OR
CAUSES OF ACTION, KNOWN OR UNKNOWN OF ANY KIND AND EVERY NATURE WHATSOEVER, AND
WHETHER OR NOT ACCRUED OR MATURED, WHICH ANY OF THEM MAY HAVE, ARISING OUT OF OR
RELATING TO ANY TRANSACTION, DEALING, RELATIONSHIP, CONDUCT, ACT OR OMISSION, OR
ANY OTHER MATTERS OR THINGS OCCURRING OR EXISTING AT ANY TIME PRIOR TO AND
INCLUDING THE TERMINATION DATE (INCLUDING BUT NOT LIMITED TO ANY CLAIM AGAINST
THE COMPANY PARTIES BASED ON, RELATING TO OR ARISING UNDER WRONGFUL DISCHARGE,
BREACH OF CONTRACT (WHETHER ORAL OR WRITTEN), TORT, FRAUD, DEFAMATION,
NEGLIGENCE, PROMISSORY ESTOPPEL, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS
AMENDED, ANY OTHER CIVIL OR HUMAN RIGHTS LAW, THE AGE DISCRIMINATION IN
EMPLOYMENT ACT, AMERICANS WITH DISABILITIES ACT, EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR ANY OTHER FEDERAL, STATE OR LOCAL LAW
RELATING TO EMPLOYMENT OR DISCRIMINATION IN EMPLOYMENT) IN ALL CASES ARISING OUT
OF OR RELATING TO EXECUTIVE'S EMPLOYMENT BY THE COMPANY OR INVESTMENT IN THE
COMPANY OR HIS SERVICES AS AN OFFICER OR EMPLOYEE OF THE COMPANY OR ITS
SUBSIDIARIES, OR OTHERWISE RELATING TO THE TERMINATION OF SUCH EMPLOYMENT OR
SERVICES; PROVIDED, HOWEVER, THAT SUCH GENERAL RELEASE WILL NOT LIMIT OR RELEASE
(I) EXECUTIVE'S RIGHTS UNDER THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO THE
PROVISIONS OF THE EMPLOYMENT AGREEMENT THAT ARE INCORPORATED HEREIN), (II)
EXECUTIVE'S RIGHTS TO INDEMNIFICATION FROM THE COMPANY IN RESPECT OF HIS
SERVICES AS AN OFFICER OR DIRECTOR OF THE COMPANY OR ANY OF ITS SUBSIDIARIES AS
PROVIDED BY LAW OR THE CERTIFICATES OF INCORPORATION OR BY-LAWS (OR LIKE
CONSTITUTIVE DOCUMENTS) OF THE COMPANY OR ANY SUBSIDIARY THEREOF, (III)
EXECUTIVE'S CONTRACTUAL RIGHTS UNDER ANY STOCK OPTION AGREEMENT THAT IS IN
EFFECT WITH RESPECT TO STOCK OPTIONS THAT HAVE BEEN GRANTED TO EXECUTIVE PRIOR
TO THE TERMINATION DATE OR THAT ARE GRANTED PURSUANT TO THIS AGREEMENT OR (IV)
CLAIMS ARISING
4
5
SOLELY AFTER THE TERMINATION DATE. THE EXECUTIVE AND SPOUSE, ON BEHALF OF
THEMSELVES AND THE EXECUTIVE PARTIES, HEREBY COVENANT FOREVER NOT TO ASSERT,
FILE, PROSECUTE, MAINTAIN, COMMENCE, INSTITUTE (OR SPONSOR OR PURPOSELY
FACILITATE ANY PERSON IN CONNECTION WITH THE FOREGOING), ANY COMPLAINT OR
LAWSUIT OR ANY LEGAL, EQUITABLE OR ADMINISTRATIVE PROCEEDING OF ANY NATURE,
AGAINST ANY OF THE COMPANY PARTIES IN CONNECTION WITH ANY MATTER RELEASED IN
THIS PARAGRAPH 10, AND REPRESENT AND WARRANT THAT NO OTHER PERSON OR ENTITY HAS
INITIATED OR, TO THE EXTENT WITHIN HIS CONTROL, WILL INITIATE ANY SUCH
PROCEEDING ON THEIR BEHALF.
(b) THE COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS
SUBSIDIARIES AND AFFILIATES, HEREBY GENERALLY RELEASES AND FOREVER DISCHARGES
THE EXECUTIVE PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, SUITS,
DAMAGES, LOSSES, EXPENSES, ATTORNEYS' FEES, OBLIGATIONS OR CAUSES OF ACTION,
KNOWN OR UNKNOWN OF ANY KIND AND EVERY NATURE WHATSOEVER, AND WHETHER OR NOT
ACCRUED OR MATURED, WHICH ANY OF THEM MAY HAVE, ARISING OUT OF OR RELATING TO
ANY TRANSACTION, DEALING, RELATIONSHIP, CONDUCT, ACT OR OMISSION, OR ANY OTHER
MATTERS OR THINGS OCCURRING OR EXISTING AT ANY TIME PRIOR TO AND INCLUDING THE
TERMINATION DATE (INCLUDING BUT NOT LIMITED TO ANY CLAIM BASED ON, RELATING TO
OR ARISING UNDER BREACH OF CONTRACT, TORT, FRAUD, DEFAMATION, ANY OTHER CIVIL OR
HUMAN RIGHTS LAW, OR ANY OTHER FEDERAL, STATE OR LOCAL LAW RELATING TO
EMPLOYMENT OR DISCRIMINATION IN EMPLOYMENT) IN ALL CASES ARISING OUT OF OR
RELATING TO THE EXECUTIVE'S EMPLOYMENT BY THE COMPANY OR INVESTMENT IN THE
COMPANY OR HIS SERVICES AS AN OFFICER OR EMPLOYEE OF THE COMPANY OR ITS
SUBSIDIARIES, OR OTHERWISE RELATING TO THE TERMINATION OF SUCH EMPLOYMENT OR
SERVICES; PROVIDED, HOWEVER, THAT SUCH GENERAL RELEASE WILL NOT LIMIT OR RELEASE
(I) THE COMPANY'S RIGHTS UNDER THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO THE
PROVISIONS OF THE EMPLOYMENT AGREEMENT THAT ARE INCORPORATED HEREIN), (II) THE
COMPANY'S RIGHTS AGAINST EXECUTIVE WITH RESPECT TO ANY FRAUDULENT OR CRIMINAL
ACTIVITY, (III) THE COMPANY'S RIGHTS UNDER ANY STOCK OPTION AGREEMENT THAT IS IN
EFFECT WITH RESPECT TO STOCK OPTIONS THAT HAVE BEEN GRANTED TO EXECUTIVE PRIOR
TO THE TERMINATION DATE (EXCEPT AS PROVIDED HEREIN) OR THAT ARE GRANTED PURSUANT
TO THIS AGREEMENT OR (IV) CLAIMS ARISING SOLELY AFTER THE TERMINATION DATE. THE
COMPANY, ON BEHALF OF ITSELF AND THE COMPANY PARTIES, HEREBY COVENANTS FOREVER
NOT TO ASSERT, FILE, PROSECUTE, MAINTAIN, COMMENCE, INSTITUTE (OR SPONSOR OR
PURPOSELY FACILITATE ANY PERSON IN
5
6
CONNECTION WITH THE FOREGOING), ANY COMPLAINT OR LAWSUIT OR ANY LEGAL, EQUITABLE
OR ADMINISTRATIVE PROCEEDING OF ANY NATURE, AGAINST ANY OF THE EXECUTIVE PARTIES
IN CONNECTION WITH ANY MATTER RELEASED IN THIS PARAGRAPH 10, AND REPRESENTS AND
WARRANTS THAT NO OTHER PERSON OR ENTITY HAS INITIATED OR, TO THE EXTENT WITHIN
THEIR CONTROL, WILL INITIATE ANY SUCH PROCEEDING ON THEIR BEHALF.
11. Cooperation: Executive agrees to cooperate with the
Company as reasonably directed by the Company by responding to questions,
depositions, administrative proceedings and court hearings, executing documents,
and cooperating with the Company and its accountants and legal counsel with
respect to business issues, and/or claims and litigation of which he has
personal or corporate knowledge. Executive further agrees, except as required by
subpoena or other applicable legal process (after the Company has been given
reasonable notice and opportunity to seek relief from such requirement), to
maintain, in strict confidence, any information of which he has knowledge
regarding current and/or future claims, administrative proceedings and
litigation. Executive agrees, except as required by subpoena or other applicable
legal process (after the Company has been given reasonable notice and
opportunity to seek relief from such requirement), not to communicate with any
party(ies), their legal counsel or others adverse to the Company in any such
claims, administrative proceedings or litigation except through the Company's
designated legal counsel. Executive also shall make himself available at
reasonable times and upon reasonable notice to answer questions or provide other
information within his possession and requested by the Company relating to the
Company, its subsidiaries and/or their respective operations in order to
facilitate the smooth transition of Executive's duties to his successor. The
Company shall reimburse Executive for any documented out-of-pocket expenses,
including but not limited to reasonable legal fees, reasonably incurred by
Executive in complying with this paragraph 11. To the extent Executive's
services are required pursuant to this paragraph 11 for more than an aggregate
of eight (8) hours, the Company will pay to Executive a per diem amount
calculated based on Executive's (i) annual Base Salary in effect immediately
prior to the Termination Date and (ii) Annual Bonus (as defined in the
Employment Agreement) for the 1998 calendar year.
12. Mail: The Company may open and answer, and authorize
others to open and answer, all mail, communications, and other correspondence
addressed to Executive relating to the Company, Los Angeles or any of their
respective subsidiaries or to Executive's employment with the Company, Los
Angeles or any of their respective subsidiaries, and Executive shall promptly
refer to the Company all inquiries, mail, communications, and correspondence
received by him relating to the Company, Los Angeles or any of their respective
subsidiaries or to Executive's employment with the Company, Los Angeles or any
of their respective subsidiaries. If any such mail, communications or
correspondence received by the Company includes any threat of any claim against
Executive personally, the Company shall promptly notify Executive thereof. The
Company will promptly forward to Executive any of Executive's personal
6
7
mail, communications or correspondence received by the Company, unopened to the
extent it is reasonably ascertained to be of a personal nature.
13. 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 of Directors, the Company and Los
Angeles at the Company's then principal office, or to the Executive at the
address set forth on the signature page hereof, 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 paragraph 13. Notices shall be deemed given when received.
14. Certain Acknowledgments: Executive and Spouse acknowledge
that before entering into this Agreement they have had the opportunity to
consult with any attorney or other advisor of their choice, and have done so,
and have not relied in connection herewith on legal counsel for the Company.
Executive and Spouse acknowledge that they have entered into this Agreement of
their own free will, that no promises or representations have been made to them
by any person to induce them to enter into this Agreement other than the terms
expressly set forth herein.
15. Authorization By The Company: The Company represents and
warrants to Executive that (i) it has the corporate power and authority to enter
into this Agreement and to carry out its respective obligations hereunder; (ii)
the execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Company; and (iii) this Agreement is
a valid and binding obligation of the Company, enforceable against it in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium, and other laws now or
hereafter in effect relating to the enforcement of creditors' rights generally.
16. Prior Agreements: WITH THE EXCEPTION OF CERTAIN PROVISIONS
OF THE EMPLOYMENT AGREEMENT TO WHICH PARAGRAPH 17 OF THIS AGREEMENT SPECIFICALLY
REFERS AND THE PROVISIONS OF ANY STOCK OPTION AGREEMENT AND/OR STOCK OPTION PLAN
(EXCEPT AS PROVIDED HEREIN) THAT IS IN EFFECT WITH RESPECT TO STOCK OPTIONS THAT
HAVE BEEN GRANTED TO EXECUTIVE ON OR BEFORE THE TERMINATION DATE, this Agreement
integrates the whole of all agreements and understandings of any sort or
character between the parties concerning the subject matter of this Agreement
and any other dealings between the parties, and supersedes all prior
negotiations, discussions, or agreements of any sort whatsoever relating to the
subject matter hereof, or any claims that might have ever been made by one party
against any opposing party to this Agreement. There are no representations,
agreements, or inducements except as set forth expressly and specifically in
this Agreement. Further, all prior employment contracts, if any, between the
parties are superseded by this Agreement. THERE ARE NO UNWRITTEN, ORAL, OR
VERBAL UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS OF ANY SORT
7
8
WHATSOEVER, IT BEING STIPULATED THAT THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
EXCLUSIVELY BY THIS AGREEMENT.
17. Survival of other Employment Agreement Provisions: The
provisions of Employment Agreement Sections 5, 7(a), 7(d) (as it relates to
Section 7(a)), 7(e) (solely as it relates to Section 7(a)), 8 (solely as it
relates to Section 7(a)), and 12, are incorporated herein by reference, shall
survive the Termination Date and shall continue in full force and effect as
though expressly set forth in this Agreement. Section 4(m)(ii) of the Employment
Agreement shall survive the Termination Date, and such security services shall
be provided at levels in effect as of the Termination Date by the Company,
through September 15, 1999. Section 4(m)(iii) of the Employment Agreement shall
survive the Termination Date, as it relates to the Executive's 1998 tax year. In
addition, the indemnification provisions of Section 12 of the Employment
Agreement will also apply to any actions taken by Executive, in accordance with
Paragraph 11 hereof or otherwise at the request of the Company, following the
execution and delivery of this Agreement. Except as specifically described
herein, all of Executive's, the Company's and Los Angeles's rights and
obligations under the Employment Agreement are extinguished upon the
effectiveness of this Agreement.
18. Modification: This Agreement may not be modified or
amended except in writing signed by the parties. No term or condition of this
Agreement will be deemed to have been waived except in writing by the party
charged with waiver. A waiver shall operate only as to the specific term or
condition waived and will not constitute a waiver for the future or act on
anything other than that which is specifically waived.
19. Counterparts: This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which, together
shall constitute one and the same instrument. Any counterpart of this Agreement
that has attached to it separate signature pages which together contain the
signature of all parties hereto shall for all purposes be deemed a fully
executed original. Facsimile signatures shall constitute original signatures.
20. Successors and Assigns: All the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and to their respective successors and permitted assigns. Neither this
Agreement nor any rights or obligations hereunder may be assigned by the
Executive, other than by will or the laws of descent or distribution.
21. Severability: All provisions of this Agreement are
intended to be severable. In the event any provision or restriction contained
herein is held to be invalid or unenforceable in any respect, in whole or in
part, such finding shall in no way affect the validity or enforceability of any
other provision of this Agreement. The parties hereto further agree that any
such invalid or unenforceable provision shall be deemed modified so that it
shall be enforced to the greatest extent permissible under law, and to the
extent that any court or arbitrator of competent jurisdiction determines any
restriction herein to
8
9
be unreasonable in any respect, such court or arbitrator may limit this
Agreement to render it reasonable in the light of the circumstances in which it
was entered into and specifically enforce this Agreement as limited.
22. Indemnification: EXECUTIVE AND SPOUSE AGREE, WARRANT, AND
REPRESENT TO THE COMPANY THAT EXECUTIVE AND SPOUSE HAVE FULL EXPRESS AUTHORITY
TO SETTLE ALL CLAIMS AND DEMANDS THAT ARE THE SUBJECT OF PARAGRAPH 10 OF THIS
AGREEMENT AND THAT NEITHER EXECUTIVE NOR SPOUSE HAS GIVEN OR MADE ANY ASSIGNMENT
TO ANYONE, INCLUDING EXECUTIVE'S OR SPOUSE'S FAMILY OR LEGAL COUNSEL, OF ANY
CLAIMS AGAINST ANY PERSON OR ENTITY ASSOCIATED WITH THE COMPANY OR ANY COMPANY
PARTIES. TO THE EXTENT THAT ANY CLAIM RELATED TO THIS AGREEMENT MAY BE BROUGHT
BY PERSONS OR ENTITIES CLAIMING BY, THROUGH, OR UNDER EXECUTIVE, SPOUSE, THEIR
RESPECTIVE HEIRS, SUCCESSORS, OR ASSIGNS, THEN EXECUTIVE FURTHER AGREES TO
INDEMNIFY, DEFEND, AND HOLD HARMLESS THE COMPANY OR ANY COMPANY PARTY, ITS
AGENTS, AND ITS SUCCESSORS FROM ANY LAWSUIT, JUDGMENT, OR SETTLEMENT ARISING
FROM SUCH CLAIMS. EXECUTIVE AND SPOUSE FURTHER HEREBY ASSIGN TO THE COMPANY ALL
CLAIMS AND CAUSES OF ACTION COVERED BY PARAGRAPH 10.
23. Facility of Payment: All cash payments to be made by the
Company to or on behalf of Executive hereunder shall be an obligation of and
made by Los Angeles, but until performed, shall remain an obligation of the
Company.
24. Choice of Law: This Agreement, including but not limited
to the provisions of the Employment Agreement that are incorporated herein,
shall be governed by and construed in accordance with the laws of the State of
Texas (without giving effect to principles of conflict of laws).
25. Return of Documents: Executive agrees that he will return
to the Company, not later than 24 hours following the execution of this
Agreement, all originals and all copies of documents, notes, computer discs,
tapes or other tangible information of any sort which he has in his possession
or under his custody or control that is the property of the Company or any of
its subsidiaries or that relate in any manner to his duties at the Company,
which is not otherwise available to the public, and will not retain any copies
of such matter. The materials required to be returned pursuant to this paragraph
25 shall not include personal correspondence that does not relate to the
Company, its subsidiaries or any of its businesses.
26. No Right to Additional Compensation: Except as expressly
provided in this Agreement, neither the Company, Los Angeles or any of their
respective predecessors, successors, assigns or affiliates shall have any
further obligation to Executive or Spouse in connection with the Employment
Agreement or Executive's employment by the Company, Los Angeles or any of their
respective subsidiaries,
9
10
including but not limited to severance, compensation (including but not limited
to deferred compensation, employment contracts, stock options, bonuses and
commissions), health insurance, life insurance, disability insurance, club dues,
vehicle allowances, vacation pay, sick pay and any similar obligations. Unless
specifically addressed, this Agreement is not intended to be a waiver of any
rights the Executive may have to (i) any nonforfeitable benefits under any of
the Company's employee benefit plans and executive compensation arrangements
which, by their terms, specifically provide for nonforfeitable benefits; (ii)
convert group benefits under any of the Company's employee benefit plans to
individual coverage, to the extent that such plans allow such conversion; or
(iii) continue coverage under any of the Company's medical plans as provided
under the Employee Retirement Income Security Act of 1974, as amended, or
section 4980 B of the Internal Revenue Code of 1986, as amended.
27. No Admission: The parties agree that by entering into this
Agreement, no party admits to having engaged in any unlawful, wrongful or
unconscionable conduct, any such conduct being expressly denied.
28. Construction: The parties agree that this Agreement was
negotiated by the parties and shall not be construed against any party.
29. Arbitration: The Company and Executive agree to submit to
final and binding arbitration any and all disputes, claims (whether in tort,
contract, statutory, or otherwise) and/or disagreements arising between them,
including any such disputes, claims and/or disagreements concerning the
interpretation or application of this Agreement (the "Arbitration")" Such
arbitration shall take place in Dallas, Texas, in accordance with the Commercial
Arbitration rules of the American Arbitration Association (the "AAA").
Arbitration under this provision must be initiated within ninety (90) days of
the action, inaction, or occurrence about which the party initiating the
arbitration is complaining. Within ten (10) days of the initiation of an
arbitration hereunder, each party will designate an arbitrator pursuant to Rule
14 of the AAA Rules. The appointed arbitrators will appoint a neutral arbitrator
from the panel in the manner prescribed in Rule 13 of the AAA Rules. Executive
and the Company agree that the decision of the arbitrators selected hereunder
will be final and binding on both parties. This arbitration provision is
expressly made pursuant to and shall be governed by the Federal Arbitration Act,
9 U.S.C. Sections 1-14. The parties hereto agree that pursuant to Section 9 of
such Act a judgment of the United States District Court for the Northern
District of Texas, Dallas Division may be entered upon the award made pursuant
to the arbitration. The parties agree that this paragraph 29 has been included
to rapidly and inexpensively resolve any disputes between them, and, except as
provided in the next sentence, this paragraph shall be grounds for dismissal of
any court action commenced by either party, other than post-arbitration actions
seeking to enforce an arbitration award. Each party shall be responsible for its
respective costs and attorneys' fees incurred in connection with the
Arbitration, and the Arbitration fees shall be divided equally between the
Executive, on the one hand, and the Company and Los Angeles, on the other hand.
Except to the extent required by law, the Arbitration result shall be kept
confidential.
10
11
30. Legal Fees: The Company shall reimburse the Executive for
all reasonable attorneys' fees incurred in connection with the negotiation and
execution of this Agreement.
[The Remainder of This Page is Intentionally Left Blank]
11
12
IN WITNESS WHEREOF, the Company and Los Angeles have caused
this Agreement to be executed in their respective corporate names by an officer
thereof thereunto duly authorized, and Executive and Spouse have hereunto set
their hands, as of the day and year first above written.
CHANCELLOR MEDIA CORPORATION
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
By:
----------------------------------------
Xxxxxx X. Xxxxx,
Chairman of the Board
-------------------------------------------
XXXXXXX X. XXXXXX
Address: 0000 Xxxxxx Xxxxx Xxxx.
Xxxxxx, Xxxxx 00000
-------------------------------------------
XXXXX XXXX XXXXXX
