Exhibit 3
CONSULTING AGREEMENT
CONSULTING AGREEMENT, dated as of June 1, 1999, by and between Westwood
One, Inc. a Delaware corporation (the "Company"), and Xxxxx X. Xxxxxxxxxx (the
"Executive").
WHEREAS, Executive is currently employed by Metro Networks, Inc., a
Delaware corporation ("Metro"), as Chairman of the Board and Chief Executive
Officer;
WHEREAS, the Company, Copter Acquisition Corp., a Delaware corporation
("Merger Sub"), and Metro entered into the Agreement and Plan of Merger, dated
as of June 1, 1999 (the "Merger Agreement") pursuant to which Merger Sub is
being merged (the "Merger") into Metro, and (b) simultaneously herewith,
Executive is entering into a Non-Compete Agreement (the "Non-Compete
Agreement"), pursuant to which Executive has agreed to refrain from taking
certain actions in competition with the Company and its affiliates following the
Effective Time (as defined in the Merger Agreement ); and
WHEREAS, the Company desires to induce Executive after the Effective
Time (the "Effective Date") to act as a consultant to the Company and to refrain
from competing with the Company pursuant to the terms of the Non-Compete
Agreement, and Executive desires to commit himself to act as a consultant to the
Company and to refrain from competing with the Company pursuant to the terms of
the Non-Compete Agreement;
NOW THEREFORE, in order to effect the foregoing, the Company and
Executive wish to enter into this Agreement upon the terms and subject to the
conditions set forth below. Accordingly, in consideration of the premises and
the respective covenants and agreements of the parties herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Term and Services to be Provided. Commencing on the
Effective Date and continuing until two and one-half years after the Effective
Date (the "Term"), Executive agrees to provide consulting services to the
Company from time to time at the reasonable request of the Company up to a
maximum of ten (10) hours per month. Such consulting services shall consist of
advising the Company with respect to general business matters, issues and
strategies relating to the Company's business. In the event that the Merger
Agreement is terminated, this Consulting Agreement shall be cancelled and shall
be of no force or effect.
2. Compensation.
(a) During the Term, the Company shall pay Executive
consulting fees at the rate of $100,000 per annum, payable in arrears in equal
monthly installments.
(b) Upon submission of all necessary properly completed
expense reports requested by the Company, the Company shall reimburse Executive,
or cause
NY2:\526658\06\B@D#06!.DOC\80764.0005
Executive to be reimbursed, in cash for all reasonable, receipt-supported,
business expenses incurred by Executive in accordance with the Company's
policies in effect from time to time.
3. Title. The Company shall cause Executive to be appointed to
the position of Vice-Chairman of Metro Networks, Inc., a wholly-owned subsidiary
of the Company, during the Term.
4. Options. The Company and Executive agree that all Company
Stock Options (as defined in the Merger Agreement) held by Executive and issued
pursuant to any Company Option Plans (as defined in the Merger Agreement) and
converted into the right to purchase Parent Common Stock (as defined in the
Merger Agreement) in accordance with Section 2.3 of the Merger Agreement shall
remain outstanding and shall continue to vest in accordance with the applicable
terms of each of such Company Stock Options, and shall be exercisable for a
period ending ninety (90) days after the end of the Term; provided, however,
that any Company Stock Options which have not become exercisable to purchase
shares of Parent Common Stock as of the termination of this Agreement shall be
terminated, and Executive shall thereafter have no rights pursuant to such
terminated Company Stock Options.
5. Termination of Stock Loan. The Company hereby agrees that
it shall not, as successor of Metro to the Stock Loan and Pledge Agreement,
dated as of October 16, 1996, by and between Metro and Executive, exercise its
right to terminate such agreement pursuant to Section 4.1(a) thereof prior to
the fifth anniversary of the Effective Date.
6. Termination.
(a) Death. Executive's consulting relationship with the
Company hereunder shall terminate upon his death.
(b) Disability. If, as a result of Executive's incapacity due
to physical or mental illness, Executive shall be unable to perform the
consulting services described herein for a continuous period of six months, the
Company may terminate Executive's consulting relationship with the Company. In
such event, Executive shall receive the compensation provided in Section 2(a)
hereof in monthly installments of substantially equal amounts.
(c) Termination by the Company for Cause. The Company may
terminate Executive's engagement for Cause after ten (10) days prior written
notice from the Chief Executive Officer of the existence of any facts or
circumstances constituting Cause if such facts or circumstances remain
unremedied following such ten (10) day period. For purposes of this Agreement,
The Company shall have "Cause" to terminate Executive's engagement hereunder
upon Executive's:
i) conviction (including a plea of nolo contendere) for the
commission of a felony; or
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ii) willful misconduct that is demonstrably and materially
injurious to the Company, whether monetarily or otherwise; or
iii) breach of any of the provisions of the Non-Compete
Agreement.
If the Company terminates Executive's engagement hereunder for
Cause, the Company shall have no further obligations to Executive under this
Agreement, except for the payment of any accrued and unpaid expenses.
7. Notice. 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: Westwood One, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Facsimile: (000) 000-0000
If to Executive: Xxxxx X. Xxxxxxxxxx
c/o Metro Networks, Inc.
0000 Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Copy to: Xxxx Xxxxxxxx, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
8. Executive's Independence and Discretion.
(a) Nothing herein contained shall be construed to constitute
the parties hereto as partners or as joint venturers, or either as agent of the
other, or as employer and employee. By virtue of the relationship described
herein, Executive's relationship to the Company during the Term shall only be
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that of an independent contractor and Executive shall perform all services
pursuant to this Agreement as an independent contractor.
(b) Subject only to such specific limitations as are contained
in this Agreement, the manner, means, details or methods by which Executive
performs his obligations under this Agreement shall be solely within his
discretion.
9. Modifications. This Agreement may be amended, modified and
supplemented only by written agreement of the parties hereto.
10. 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.
11. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
12. 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.
13. 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. Executive may not assign his duties or obligations hereunder.
14. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same agreement.
15. 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.
16. 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.
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SIGNATURE PAGE TO CONSULTING AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Consulting
Agreement on the date and year first above written.
WESTWOOD ONE, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President,
Chief Financial Officer
and Secretary
/s/ Xxxxx X. Xxxxxxxxxx
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XXXXX X. XXXXXXXXXX
