Exhibit 4
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of June 1, 1999 (this
"Agreement"), is entered into by and between XXXXXXX X. XXXXXXXX ("Employee")
and WESTWOOD ONE, INC., a Delaware corporation (the "Company").
RECITALS:
WHEREAS, the Company is in the business of managing a sales
force, selling broadcast and other advertising, and developing, producing and
broadcasting traffic, news, sports, weather and other information reports
throughout the United States; and
WHEREAS, Employee has extensive management, marketing and
operations experience; and
WHEREAS, the Company desires to engage the services of
Employee to serve as President and Chief Operating Officer of the Company's
Metro/Shadow operations ("Metro/Shadow") on the terms and conditions herein
contained; and
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Employment. The Company hereby engages and employs
Employee, and Employee accepts such employment, to render such services to the
Company as President and Chief Operating Officer of Metro/Shadow as are
customarily rendered by and required by such a position, and Employee agrees to
devote Employee's full time and efforts to the interests of the Company upon the
terms and conditions hereinafter set forth.
2. Term of Employment. Subject to the provisions for
termination hereinafter provided, Employee's term of employment by the Company
shall commence at the Effective Time (as defined in the Agreement and Plan of
Merger, dated as of June 1, 1999, by and among the Company, Metro Networks, Inc.
and Copter Acquisition Corp. (the "Effective Date"), and shall continue in
effect until the later of (i) twenty-four (24) months from the Effective Date
and (ii) December 31, 2001 (the "Term"). Unless otherwise terminated pursuant
hereto, if Employee continues to be employed by the Company after the Term, then
Employee's employment shall be deemed to continue on a month-to-month basis
until such time as either party shall deliver written notice to the other party
and this Agreement shall terminate ninety (90) days after the giving of such
notice. Except as otherwise set forth herein, if either party hereto desires to
terminate this Agreement at the end of the Term or thereafter, the same ninety
(90) days prior written notice shall apply. The period from the Effective Date
through the date ninety (90) days from the date any notice of termination
referred to above is delivered is hereinafter referred to as the "Employment
Period". Unless otherwise
NY2:\526856\06\B@$W06!.DOC\80764.0005
terminated pursuant to Section 7, if the Company terminates Employee's
employment at the end of the Term or anytime thereafter, or the parties are
unable to agree on the terms of a new agreement at the end of the Term and
Employee terminates his employment, the Company shall pay Employee the
equivalent of his monthly Base Salary (as defined herein) for ninety (90) days
following the end of Employee's employment.
3. Services to be Rendered by Employee.
(a) During the Employment Period, Employee shall serve as
President and COO of Metro/Shadow. Employee shall perform such executive duties
as from time to time may be delegated to Employee by such parties. Employee
shall devote all of Employee's professional time, energy and ability to the
proper and efficient conduct of the Company's business. Employee shall observe
and comply with all reasonable lawful directions and instructions by and on the
part of the Chief Executive Officer or the Board of Directors of the Company
(the "Board of Directors") or their designees, and endeavor to promote the
interests of the Company and not at any time do anything which may cause or tend
to be likely to cause any loss or damage to the Company in business, reputation
or otherwise.
(b) The Company may from time to time call on Employee to
perform services related to the business of developing and broadcasting traffic,
news, sports and weather reports, which may include (in the Company's sole
discretion) contributing to the day-to-day management and operation of such
business, soliciting Sponsors, Corporate Affiliates (as such terms are defined
in Section 14 hereof) or customers or dealing with their accounts, or the
television or radio broadcast of traffic, news, sports and weather reports, or
other activities related to the Company's business, as reasonably specified from
time to time by the Chief Executive Officer, the Board of Directors or their
designees. The Company shall not relocate Employee to another city without
Employee's prior consent.
(c) Employee acknowledges that the Company does not allow
personal trade.
4. Compensation.
(a) Base Salary. For the services to be rendered by Employee
during Employee's employment by the Company, the Company shall pay Employee, and
Employee agrees to accept, a base salary (the "Base Salary") of $325,000 for
year one and $350,000 for year two, in each case payable in accordance with the
Company's standard payroll procedures.
(b) Bonus. Employee shall be eligible for a potential cash
bonus of $125,000 for year one and $150,000 for year two, in each case based on
achieving cash flow objectives established by the Chief Executive Officer, which
objectives may be modified by the Chief Executive Officer based on changes in
facts or circumstances in his/her reasonable discretion.
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(c) Options. Employee will be granted options, at the then
current market price on the date of grant, under the Company's 1999 Stock Option
Plan to purchase seventy-five thousand (75,000) shares, of the Company's common
stock, par value $.01 per share, on each of the Effective Date and the first
anniversary of the Effective Date. The option agreement relating to such options
shall provide that such options shall vest ratably over 5 years, provided,
however, that vesting will be accelerated if employee is terminated without
cause (for purposes of this Agreement, termination for cause shall be limited to
termination pursuant to Sections 7(a)(i), (ii), (iv) and (v) hereof), or if this
Agreement is not renewed on terms substantially similar to this Agreement,
excluding the annual grant of stock options.
5. Expenses. Upon submission of all necessary properly
completed expense reports requested by the Company, the Company shall reimburse
Employee, or cause Employee to be reimbursed, in cash for all reasonable,
receipt-supported, business expenses incurred by Employee in accordance with the
Company's policies in effect from time to time.
6. Benefits.
(a) Company Plans; Insurance. During the Term, Employee shall
receive all the benefits currently available to comparable level employees of
the Company. Employee recognizes the right of the Company to change, amend or
terminate any of the afore-mentioned employee benefit programs at any time.
(b) Vacation. Employee shall be entitled to vacation time in
accordance with the Company's employee handbook. Such vacation time may only be
used subject to reasonable approval by the Chief Executive Officer of the
Company.
(c) Years of Service. For purposes of determining years of
service, Employee shall be given credit for years of service at Metro/Shadow and
its subsidiaries.
7. Termination of Employment; Suspension.
(a) During the Employment Period, the Company shall have the
right, to terminate the employment of Employee hereunder immediately with or
without notice thereof to Employee in the event of any of the following:
(i) if Employee has (A) willfully failed, refused or
habitually has neglected to carry out or to perform the reasonable duties
required of Employee hereunder or otherwise breached any material provision of
this Agreement (other than Sections 8 and 13 hereof, which are governed by
Section 7(a)(iv) hereof) after ten (10) days prior written notice from the Chief
Executive Officer or the Board of Directors of such failure or neglect and the
failure or neglect remains unremedied following such ten (10) days period, or
(B) willfully breached any statutory or common law duty.
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(ii) if Employee is convicted of a felony or a crime involving
moral turpitude or if the Company, acting in good faith and upon reasonable
grounds, determines that Employee has willfully engaged in conduct which would
injure the reputation of the Company or otherwise adversely affect its interest
if Employee were retained as an employee of the Company;
(iii) if Employee becomes unable by reason of physical
disability or other incapacity (as may be defined in applicable disability
insurance policies) to carry out or to perform the duties required of Employee
hereunder for a continuous period of ninety (90) days; provided, however, that
Employee's compensation during any period in which Employee is unable to perform
the duties required of Employee hereunder shall be reduced in accordance with
the Company's policies and by any disability payments (excluding any
reimbursements for medical expenses and the like) which Employee is entitled to
receive under group or other disability insurance policies of the Company during
such period;
(iv) if Employee breaches any of the provisions of Section 8
or 13 hereof or breaches any of the terms or obligations of any other
noncompetition and/or confidentiality agreements entered into between Employee
and the Company, or the Company Group (as hereinafter defined), if any; or
(v) if employee steals or embezzles assets of the Company.
(b) Employee's employment with the Company shall automatically
terminate (without notice to Employee's estate) upon the death or loss of legal
capacity of Employee.
(c) If Employee willfully fails to perform in any material
respect any of the obligations set forth in this Agreement, or in the event of
any willful breach by Employee of any representation, warranty, term, obligation
or condition of this Agreement, the Company shall have the right, at its sole
option, in addition to the rights set forth in this Agreement or any other
rights at law or in equity, to discipline Employee, by suspension from work,
and/or suspension of or reduction in pay.
(d) In the event of any termination of employment pursuant to
this Section 7, Employee (or Employee's estate, as the case may be) shall be
entitled to receive (i) the Base Salary herein provided prorated to the date of
such termination, (ii) Employee's present entitlement, if any, under the
Company's employee benefit plans and programs and (iii) no other compensation.
8. Confidentiality; Non-Competition; Non-Solicitation.
(a) Employee recognizes and acknowledges that he has had
access to certain information of members of the Company Group (as hereinafter
defined) and that such information is confidential and constitutes valuable,
special and unique property of such members of the Company Group. Employee shall
not, directly or indirectly, at any time after the Effective Date, disclose,
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divulge, publish or otherwise communicate to anyone, nor retain, copy or permit
to be copied, or make use of for personal purposes or for the benefit of any
person, firm, corporation or other entity (other than the Company Group) any
Confidential Information (as defined below) of any member of the Company Group
(regardless of whether developed by such party) without the prior written
consent of the Company.
As used herein, "Company Group" means the Company and its
subsidiaries, and any entity that directly or indirectly controls, is controlled
by, or is under common control with, the Company and its subsidiaries. For
purposes of this definition, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such entity, whether through the ownership of voting securities, by
contract or otherwise.
(b) The term "Confidential Information" with respect to any
person means any trade secrets and any other secret or confidential information
or knowledge and shall include, but shall not be limited to, (i) the plans,
methods, costs, prices, uses and applications of products and services relating
to the Business (as hereinafter defined), (ii) results of investigations,
studies or research relating to the Business, (iii) information relating to
employees, agents, broadcasters, customers, suppliers and advertisers of the
Business, (iv) all products, processes, compositions, samples, formulae,
computer programs and information systems relating to the Business, (v) all
servicing, marketing, programming or business methods and techniques relating to
the Business and (vi) all business plans, financial matters and all information
relating to mergers and acquisitions relating to the Business, in all such cases
before or during the term of this Agreement, that are not available to the
public or that are maintained as confidential by any member of the Company
Group.
(c) During the Term of this Agreement and for a period of one
year thereafter, without the prior written consent of the Company, Employee
shall not, and shall not permit any person or entity who or which Employee
controls (as defined above) to, within the United States (the "Territory"),
engage directly or indirectly in the Business (other than engaging in such
businesses pursuant to Employee's employment or consultation with, participation
in the management of, or ownership of securities in, the Company Group). For
purposes of this Agreement, "Business" shall mean the businesses of the Company
(as now conducted or contemplated to be conducted) including without limitation,
the businesses of (i) providing traffic reporting services, however distributed,
including, without limitation, to television and radio stations, Internet
service providers and any other person or entity who or which may distribute
such services or information through any media, now existing or hereafter
available or (ii) providing local news, sports or weather reporting to radio
stations. Employee shall be deemed to engage in the Business if Employee,
directly or indirectly (including, without limitation, through any person or
entity who or which Employee controls), engages or invests in, owns, manages,
operates, controls or participates in the ownership, management, operation or
control of, is employed by, provides financial support, or renders services or
advice to, any business engaged in the Business; provided, however, that (x)
Employee or any such person or entity may invest in the securities of any
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enterprise (but without otherwise participating in the activities of such
enterprise) if (1) such securities are listed on any national or regional
securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934, as amended, and (2) Employee does not
beneficially own (as defined Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended) 5% or more of the outstanding equity of such
enterprise and (y) Employee shall not be deemed to engage in the Business as a
result of his employment with a business so engaged so long as the
responsibilities and activities with respect to his employment are not related,
directly or indirectly, in any material respect to the conduct by such business
of its Business.
(d) During the Term of this Agreement and for a period of one
year thereafter, Employee shall not, directly or indirectly, request, induce,
attempt to influence or have any other business contact with any employee,
officer, agent or consultant of any member of the Company Group or any talent
providing services to the Company Group, to terminate his or her relationship
with such member of the Company Group.
9. Enforceability. Employee agrees that if a court of
competent jurisdiction determines that the length of time or any other
restriction, or portion thereof, set forth in this Agreement is overly
restrictive and unenforceable, the court may reduce or modify such restrictions
to those which it deems reasonable and enforceable under the circumstances, and
as so reduced or modified, the parties hereto agree that the restrictions of
this Agreement shall remain in full force and effect. Employee further agrees
that if a court of competent jurisdiction determines that any provision of this
Agreement is invalid or against public policy, the remaining provisions of this
Agreement and the remainder of this Agreement shall not be affected thereby, and
shall remain in full force and effect. Employee acknowledges that the
restrictions imposed by the Agreement are legitimate, reasonable and necessary
to protect the Company Group's investment in its businesses and the goodwill
thereof. Employee acknowledges that the scope and duration of the restrictions
contained herein are reasonable in light of the time that Employee has been
engaged in the Business, Employee's reputation in the markets for the Business
and Employee's relationship with the suppliers, customers, advertisers and
clients of the Company Group. Employee further acknowledges that the
restrictions contained herein are not burdensome to Employee in light of the
consideration paid therefor and the other opportunities that remain open to
Employee.
10. Remedies. Employee acknowledges that money damages or
other remedy at law would not be a sufficient or adequate remedy for any breach
or violation of, or default under, this Agreement, but Employee agrees that in
addition to all other remedies available to the other parties hereto, such other
parties shall be entitled to the fullest extent permitted by law to an
injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including, without
limitation, restraining orders, injunctive relief and specific performance,
without the posting of a bond or other security interest being required.
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11. Advertising and Publicity. Employee hereby grants the
Company the royalty-free right to use and license others to use Employee's name,
nickname, recorded voice, biographical material, portraits, pictures, and
likenesses for advertising purposes and purposes of trade, promotion and
publicity in connection with the institutions, services and products for the
Company Group, Sponsors and Corporate Affiliates, such uses to be at such times,
in such manner and through such media as the Company may in its sole discretion
determine. Such right shall last for so long as Employee is employed by the
Company and, in connection with the use or exploitation of any material in which
Employee has been involved during Employee's employment, perpetually thereafter.
Employee shall not authorize or release any advertising or promotional matter or
publicity in any form with reference to Employee's services hereunder, or to the
Company Group's programs, Sponsors or Corporate Affiliates, without the
Company's prior written consent.
12. Work for Hire. Employee agrees that any ideas, concepts,
techniques, or computer programs relating to the business or operations of the
Company Group which are developed by Employee during Employee's employment
hereunder, including each program and announcement prepared for broadcast, and
the titles, content, format, idea, theme, script, characteristics, and other
attributes thereof, shall be deemed to have been made within the scope of
Employee's employment and therefore constitute works for hire and shall
automatically upon their creation become the exclusive property of the Company.
To the extent such items are not works for hire under applicable law, Employee
assigns them and any and all intangible proprietary rights relating thereto to
the Company in their entirety and agrees to execute any and all documents
necessary or desired by the Company to reflect the Company's ownership thereof.
13. Communications Act of 1934. Employee represents and
warrants that neither Employee nor, to the best of Employee's knowledge,
information and belief, any other person, has accepted or agreed to accept, or
has paid or provided or agreed to pay or provide, any money, service or any
other valuable consideration, as defined in Section 507 of the Communications
Act of 1934, as amended, for the broadcast of any matter contained in programs.
Employee further represents and warrants that, during Employee's employment,
Employee shall comply with all legal requirements.
14. Certain Definitions. As used in this Agreement, the
following capitalized terms shall have the meanings indicated:
(a) Corporate Affiliates. Any organization, entity or person
with whom the Company has or had a contract or other arrangement to provide
traffic, news, weather, sports or other information, whether by broadcast,
computer or any other means.
(b) Sponsor(s). Any and all client advertisers of the Company
(including their subsidiaries and affiliates), including, without limitation,
advertisers whose commercial material is to be, is or was incorporated in any
one or more of the Company's programs or announcements, live or recorded,
broadcast over the facilities of the Company, by the Company, or pursuant to an
arrangement with a Corporate Affiliate.
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15. No Waiver. No failure or delay on the part of any party in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder.
16. Successors and Assigns. This Agreement shall inure to the
benefit of and the successors and assigns of the Company. The Company may assign
its rights under this Agreement in connection with any sale, transfer of other
disposition of all or a substantial portion of the stock or assets of the
Company. Employee may not assign his duties or obligations hereunder, but this
Agreement shall be enforceable against Employee's successors and legal
representatives to the extent of any violation hereof by Employee.
17. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telegram, confirmed facsimile or telex, or by first class mail (postage prepaid,
return receipt requested), to the other party as follows:
if to the Company to: Westwood One, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
if to Employee to: Xxxxxxx Xxxxxxxx
c/o Metro Networks, Inc.
0000 Xxxx Xxx Xxxx.
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
with a copy to: Xxxx X. Xxxxxx, Esq.
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
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or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
18. Severability. If any term or other provision of this
Agreement is invalid, illegal or unenforceable, all other provisions of this
Agreement shall remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party.
19. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
20. Governing Law. This Agreement shall be instituted and
enforced in accordance with, and governed by, the laws of the State of New York
applicable to contracts to be made, executed, delivered and performed wholly
within such state and, in any case, without regard to the conflicts of law
principles and policies of such state.
21. Waiver of Rights and Consent to Arbitration. Employee
shall and does hereby irrevocably waive the right to file any complaints against
the Company with any federal, state or local agencies, including but not limited
to, the Equal Employment Opportunity Commission, and any state Commission on
Human Rights or to file any claim, institute litigation or other legal action
based on the employment relationship or any activity covered by the terms of
this agreement. Employee agrees and acknowledges that in exchange for the
relinquishment of those rights that any dispute, controversy or claim arising
out of this Agreement, or the employment relationship between Employee and the
Company, except for equitable relief sought by the Company in aid of
arbitration, shall be finally settled by arbitration in the State of New York in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association in effect on the date of this Agreement and judgment upon the award
may be entered in any court having jurisdiction thereof.
22. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be original but all of which
shall constitute one and the same agreement.
23. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
24. Execution by Company. Submission of this Agreement to
Employee, or Employee's agents or attorneys, for examination or signature does
not constitute or imply an offer of employment, and this Agreement shall have no
binding effect until execution hereof by both the Company and Employee.
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25. No Inference Against Author. No provision of this Agreement shall be
interpreted against any party because such party or its legal representative
drafted such provision.
[SIGNATURES BEGIN ON NEXT PAGE]
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SIGNATURE PAGE TO EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this
Employment Agreement as of the day and year first written above.
WESTWOOD ONE, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President,
Chief Financial Officer
and Secretary
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
XXXXXXX X. XXXXXXXX
