EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This employment agreement (the "Agreement") is made as of April 29,
1998 and amends and restates in its entirety the employment agreement, as
amended, dated as of October 18, 1993 (the "Prior Agreement"), by and between
Westwood One, Inc., a Delaware corporation, having its principal offices at 0000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx 00000-0000 (the "Company"), acting
through the Compensation Committee of its Board of Directors pursuant to the
authorization of the Board of Directors, and Xxxxxx X. Xxxxxx (the "Employee").
W I T N E S E T H
WHEREAS, Employee founded the Company and is now serving as its
Chairman of the Board of Directors and Executive Producer;
WHEREAS, Company wishes to assure itself of the continued services of
Employee in such capacities for an additional five (5) years from December 1,
1998 through November 30, 2003 upon the terms and conditions set forth herein;
and
WHEREAS, Employee is willing to enter into this Agreement upon the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the parties agree as follows:
1. Employment.
Company shall employ Employee, and Employee shall serve, as the sole
Chairman of the Board during the term hereof. Employee shall have all powers and
authority necessary to enable him to discharge his duties in the offices which
he holds as well as all powers and authority which are commonly incident to the
offices of Chairman of the Board of a company which is a major producer and
distributor of programs in broadcast and telecast media. Employee shall report
only and directly to the Board of Directors, Company shall use its best efforts
to keep Employee a member of the Board of Directors throughout the term,
including placing Employee on management's slate of nominees for election as a
director at every shareholders' meeting at which his term as a director would
otherwise expire. Employee shall, subject to his election or appointment as
such, serve as a member of such committees of the Board of Directors as the
Board of Directors deems appropriate. If the Board of Directors shall establish
an executive committee (or its equivalent), Employee shall be a member of such
committee. Employee shall render his services at the Company's headquarters in
the greater Los Angeles metropolitan area, Employee shall engage in reasonable
travel on behalf of the Company but shall not be required to relocate. Employee
shall have the office, executive assistant and parking place of his choice, and
Employee's office shall be furnished and equipped as Employee chooses generally
consistent with the state of Employee's office immediately prior to the
execution of this Agreement, but upgraded as required. No change shall be made
in Employee's duties, functions, responsibilities, powers or authority, all of
which shall remain as immediately prior to the execution of this Agreement.
Employee shall retain all of the foregoing positions, duties, functions, powers,
responsibilities and authority in any successor company by reason of merger,
combination, consolidation, acquisition, organization or otherwise.
2. Extension of Employment.
Upon the expiration of the Prior Agreement, Employee shall be employed
for a term of five (5) years beginning December 1, 1998.
3. Compensation and Other Benefits.
3.1. Salary.
The Company shall pay to Employee during the term hereof a base salary
at the annual rates set forth on Schedule 1 attached hereto and incorporated
herein by this reference. Such salary shall be payable in equal bi-monthly
installments during the term hereof. In addition, within ninety (90) days after
the end of each year of the term of this Agreement, the Board of Directors
(excluding Employee) shall meet and discuss whether any other cash bonus based
upon Employee's performance would be appropriate and shall award Employee such
cash bonuses as it may deem to be appropriate in the exercise of its business
judgment. The evaluation of Employee's performance shall include such areas as
creativity, leadership, decision-making and overall management.
3.2. Other Benefits.
(a) During the term hereof, Employee (and his dependents where
applicable) shall be entitled to participate and shall be
included in any employee benefit plans, including but not
limited to, any group health and life insurance, disability
insurance, pension, profit-sharing, deferred compensation or
similar plans of Company now existing or established
hereafter, on a basis which is no less favorable than the
participation made available to the most senior executive
officer of the Company.
(b) During the term hereof, Employee shall be entitled to the
stock option benefits described in Section 4 hereof.
(c) During the term hereof, Employee shall be entitled to six
(6) weeks of vacation each contract year during which time his
compensation shall be paid in full.
(d) During the term hereof, Company shall provide
Employee with an automobile of Employee's choice and shall pay
for all expenses in connection therewith, including but not
limited to all insurance, repairs, maintenance, gas, oil and
mobile telephone. Employee may, at his election, purchase the
automobile from Company at the automobile's fair market value,
which fair market value shall be deemed to be the value set
forth in the Xxxxx Blue Book. Company, however, shall pay for
such automobile expenses whether Employee or Company owns the
automobile.
(e) During the term hereof, Company shall pay all
expenses incurred in connection with the performance of
Employee's duties hereunder or in promoting the business of
the Company, including without limitation business-related
entertainment expenses. Further, Company shall reimburse
Employee for all other out-of-pocket expenses, including air
and ground transportation, lodging and other travel expenses,
incurred by Employee in connection with the performance of
Employee's duties hereunder or to promote the business of the
Company on the same basis and to the same extent as provided
to Employee immediately prior to the execution of this
Agreement.
(f) Company and Employee hereby reaffirm the Registration
Rights Agreement, dated October 18, 1993, pursuant to which
the Company grants Employee full "piggy back registration
rights" and limited demand registration rights with respect to
any and all of the Common Stock of the Company ("Common
Stock") owned by the Employee.
(g) Company shall pay all expenses of Employee (including
without limitation all legal, accounting and financial
planning fees and expenses) in connection with this Agreement.
(h) During the term hereof, Employee shall receive, at his
election, an "Executive Producer" credit (equal in all
respects to best producer or similar credit provided any other
individual) on each entertainment or talk-oriented programming
produced or co-produced by Company consistent with past
practices.
Employee is required to pay any amounts required by
Federal, state or local tax law with respect to the benefits paid to Employee
pursuant to this Section 3.2 and the Company may withhold such amounts from the
salary or other cash compensation payable to Employee hereunder; provided,
however, that, at the election of Employee, such amounts may be paid in
shares of Common Stock which have been registered under the Securities Act
of 1933 (the "Act") or, in the opinion of counsel to the Company, may otherwise
be freely traded.
3.3. Salary and Benefit Continuation.
The Company will continue Employee's compensation (base salary and cash
incentive compensation) at the full rate and in bi-monthly installments for a
period of twelve (12) months after Employee is declared permanently and totally
disabled (including by reason of Employee's death) and unable to perform the
duties of Chairman of the Board of the Company. Thereafter the Company will pay
to Employee seventy-five percent (75%) of Employee's annual salary, payable in
bimonthly installments, for the remainder of the term of this Agreement (i.e.,
through November 30, 2003). Furthermore, in the event of such permanent and
total disability (including by reason of Employee's death), only the benefits
described in Section 3.2(a), 3.2(b), and 3.2(f) shall continue for the balance
of the term of this Agreement; the benefits described in Section 3.2(f) shall
continue in accordance with the terms of the document described therein.
For purposes of this Section, the determination of whether or not
Employee is declared permanently and totally disabled shall be made by
Employee's physician, by written notice to the Board of Directors. In the event
the Board of Directors disagrees with the determination by Employee's physician,
the Board of Directors shall appoint, at Company's expense, another physician to
make such determination. If the physician so appointed by the Board of Directors
disagrees with the determination made by Employee's physician, then the two
physicians shall appoint a mutually acceptable third physician, at Company's
expense, to make the final determination of whether Employee is permanently and
totally disabled, which determination shall be binding upon all parties hereto.
3.4. Limitation on Annual Compensation.
Notwithstanding any provision herein to the contrary, the payment of
any remuneration (within the meaning of Internal Revenue Code Section 162(m)) in
excess of $1,000,000 in any taxable year of Employee during the term hereof
which would otherwise be payable to Employee pursuant to this Agreement in the
absence of this Section 3.4 ("Excess Remuneration") shall be deferred until the
first taxable year that the payment of such Excess Remuneration would not result
in the payment by Company to Employee in such year of remuneration in excess of
$1,000,000.
4. Stock Options.
Effective as of the date hereof (the "Date of Grant"), and in addition
to options granted to Employee under the Prior Agreement (the "Prior Options"),
the Company grants to Employee a non-qualified option to purchase all or any
part of 500,000 shares of Common Stock (the "Option Shares") under the Company's
1989 Stock Incentive Plan, as amended (the "Plan"), upon the terms and subject
to the conditions set forth below and in the Plan.
4.1. Term Of Option.
Such option shall expire ten (10) years after the Date of Grant, unless
such option shall have been terminated earlier in accordance with the provisions
hereof.
4.2. Exercisability of Option.
Such option shall become exercisable as to 100,000 of the Option Shares
(an "Exercise Increment") on each anniversary of the date hereof through and
including November 30, 2003, and shall remain exercisable for the term provided
in Section 4.1.
Option Shares as to which such option becomes exercisable pursuant to
the foregoing provisions may be purchased at any time thereafter prior to the
expiration or termination of the option.
If a Partial Event of Change or an Event of Change occurs (as defined
in Section 8 hereof), the option shall become exercisable at the election of
Employee in accordance with Sections 8.4 or 8.5 hereof.
4.3. Exercise Price.
The exercise price for each Option Share shall be 100% of the Fair
Market Value (as defined in the Plan) of a share of Common Stock on the Date of
Grant. Employee shall be offered Reload Stock options (as defined in the Plan)
if and to the extent that any holder of options granted pursuant to the Plan is
offered Reload Stock Options.
4.4. Manner of Exercise.
All or any portion of each Exercise Increment may be exercised by
written notice delivered to the Company stating the number of Option Shares with
respect to which the option is being exercised, together with cash or a check in
the amount of the purchase price of such shares, or, at the election of
Employee, shares of Common Stock held at least six (6) months having an
aggregate Fair Market Value equal to such purchase price.
4.5. Termination of Employment.
If Employee's employment with the Company terminates for any reason
other than death or disability, all Option Shares and all Option Shares under
the Prior Options which are then exercisable may be exercised during the period
ending three (3) months after such termination.
If Employee's employment is terminated by death or disability of Employee,
Option Shares an all Option Shares under the Prior Options which have become
exercisable will expire to the extent not exercised by Employee or his
authorized representative (in the event of disability) or the executor or
appropriate representative of Employee's estate (in the event of death) within
one (1) year from the date of such death or disability. Notwithstanding any
provision herein to the contrary, no Option Share shall be exercisable following
the expiration of the term of the option. For purposes of this Section 4.5,
"disability" shall have the meaning specified in Section 2.6 of the Plan. In the
event the Plan is amended to allow more favorable treatment with respect to the
periods during which options may be exercised, the Prior Options and the options
granted herein shall automatically be amended to provide for such more favorable
treatment.
The Company's obligation in Section 4.9 to include any Option Shares in
any registration statement then currently used to register the resale of shares
of Common Stock received by other employees pursuant to the exercise of options
granted under the Plan, shall remain in full force and effect until such time as
Employee or his estate has sold the Option Shares pursuant to any such
registration statement.
4.6. Assignment or Transfer.
The option granted hereunder is personal to Employee. Except
for transfers by will or the laws of descent or distribution, or as otherwise
permitted by the Plan, the option may not be transferred, in whole or in part,
to any Person, whether by gift or otherwise. If transferred by will or the laws
of descent or distribution, the option must be exercised by Employee's executor
or other personal representative within the time specified in Section 4.5
hereof.
4.7. No Rights as Shareholder.
Promptly upon receipt of the notice and payment described in Section
4.4 hereof, the Company will instruct its transfer agent to issue forthwith a
stock certificate reflecting the number of Option Shares purchased by Employee.
Employee shall have no rights as a shareholder with respect to the Option Shares
until the date of the issuance of a stock certificate or stock certificates. No
adjustment will be made for dividends or other rights for which the record date
is prior to the date such stock certificate or certificates are issued.
4.8. Adjustments Upon Changes in Capitalization.
The option and the Option Shares shall be subject to adjustment in the
event of certain corporate transactions, including the merger, consolidation or
liquidation of the Company, and certain changes in the Company's capitalization,
including changes resulting from any stock dividend, subdivision or
consolidation of the Common Stock, pursuant to the terms of Article XI of the
Plan; provided, however, in no event will the option or the Option Shares be
cancelled, in whole or in part, pursuant to Section 11.2(a)(iii) of the Plan.
4.9. Securities Act of 1933.
The Option Shares have been registered with the Securities and Exchange
Commission pursuant to a registration statement on Form S-8 and the Company will
use its best efforts to keep such registration statement current. Further, the
Company agrees to include any Option Shares received upon exercise of the option
in any registration statement then currently used to register the resale of
shares of Common Stock received by other employees pursuant to the exercise of
options granted under the Plan, and to use its best efforts to keep any such
registration statement current.
Employee represents and agrees that if Employee exercises the option in
whole or in part at a time when there is not in effect under the Act (the "Act")
a registration statement relating to the Option Shares and available for
delivery to Employee a prospectus meeting the requirements of Section 10 (a) (3)
of the Act, Employee will acquire the Option Shares upon such exercise not with
a view to their resale or distribution and that, upon, each such exercise of the
option, Employee will furnish to the Company a written statement to such effect
on such form as the Company may request.
5. Non-Competition/Unfair Competition.
5.1. Non-Competition .
During the term of this Agreement, Employee shall not knowingly,
directly or indirectly, engage or participate in any business that is in
competition with the business of the Company. The foregoing obligation of
Employee not to compete with the Company shall not prohibit Employee from owning
or purchasing any corporate securities of any corporation that are regularly
traded on a recognized stock exchange or over-the-counter market so long as
Employee does not own, in the aggregate, five percent (5%) or more of the voting
equity securities of any such corporation. Notwithstanding the foregoing, with
the consent of the Board of Directors (which consent shall not be unreasonably
withheld), Employee may engage or participate in outside business activities
which do not significantly interfere with the services required of Employee to
the Company hereunder.
5.2. Unfair Competition.
The Company treats certain information, including but not limited to,
information about its affiliated radio stations, marketing programs, or radio
programs, as confidential information (the "Confidential Information"). Employee
acknowledges and agrees that, during the term of this Agreement, the sale or
unauthorized use or disclosure of any Confidential Information obtained by
Employee during his employment with the Company constitutes unfair competition.
Employee promises and agrees not to engage in unfair competition with the
Company during the term of this Agreement.
6. Termination Provisions.
6.1. Termination by Company.
If Employee is not elected to the Board of Directors by the
stockholders of the Company, such failure shall not constitute grounds for the
Company to terminate this Agreement. This Agreement may be terminated by Company
only as provided in this Section and for no other cause or reason:
(a) Upon ninety (90) days' advance written notice, Company may
terminate this Agreement by a two-thirds vote of the Board of
Directors (excluding Employee) for "Cause" defined only as
follows: willful commission by Employee of a material act
(which action first occurs during the term of this Agreement)
of fraud or gross misconduct having a material adverse effect
upon the business of the Company, or competition by Employee
with the Company in violation of Section 5 hereof, which is
not cured or ceased by Employee within such 90-day period.
(b) Except as otherwise provided herein, this Agreement
shall terminate upon the death of Employee.
(c) Except as otherwise provide herein, this Agreement shall
terminate as of the date Employee is declared permanently and
totally disabled and unable to perform the duties of Chairman
of the Board and Chief Executive officer of the Company.
6.2. Termination by Employee.
This Agreement may be terminated by Employee as follows:
(a) Upon thirty (30) days' advance written notice, Employee may
terminate this Agreement if it is materially breached by the
Company.
(b) Except for the foregoing, Employee may terminate this
Agreement by ninety (90) days'advance written notice.
(c) Pursuant to Section 11.7 hereof.
7. Indemnity.
Company hereby agrees to indemnify, defend and hold harmless Employee
to the maximum extent permitted by Delaware law, on the terms and conditions set
forth in numbered paragraphs 3 through 15, inclusive of the form entitled
"Indemnification Agreement" attached hereto as Schedule 4 (with "Indemnified
Party" as used therein deemed to refer to Employee), which paragraphs are
incorporated by reference herein as though set forth in full. The indemnity
provided for herein shall not be deemed exclusive of, or dependent or
conditional upon, any other indemnity obligations running to Employee, nor shall
any other indemnity obligations running to Employee (including without
limitation any indemnity obligations which may arise if Company and Employee
enter into a separate Indemnity Agreement in the form attached hereto as
Schedule 4 or otherwise) be deemed exclusive of, or dependent or conditional
upon, the indemnity obligations contained in this Agreement. The indemnity
obligations contained herein shall survive the termination of employment of
Employee or expiration of this Agreement for any reason whatsoever, and shall,
where appropriate, inure to the benefit of and cover Employee's estate.
8. Change of Control.
8.1. Partial Event of Change Defined.
For the purposes of this Agreement, a Partial Event of Change shall be
deemed to have occurred as of the date when there is a reduction in the per
share voting power of the Company's Class B Stock held by Employee, which
reduction is not caused by Employee, or directly or indirectly agreed to by
Employee as a member of the Board of Directors of the Company; provided, that if
such reduction occurs as a result of the passage, adoption or amendment of any
Federal or State legislation, rules or regulations, or the adoption or amendment
of any rules or regulations of the National Association of Securities Dealers,
Inc., the Partial Event of Change shall be deemed to occur (or to have occurred)
ten (10) business days prior to the effective date of the legislation, rule or
regulation.
8.2. Event of Change Defined.
For purposes of this Agreement, an Event of Change shall be deemed to
occur upon the happening of any of the following events:
(a) Company becomes a Participant in any transaction or
event that contemplates the dissolution or liquidation of the
Company or a substantial reduction in the business operations
of the Company;
(b) Company becomes a Participant in any merger,
consolidation, acquisition or transfer of property or assets
other than one in which it will be the acquirer both in form
and substance;
(c) Company becomes a Participant in any transaction
whereby all or substantially all of the property or assets of
the Company are proposed to be sold or transferred to one or
more Third Parties;
(d) Assuming the prior or contemporaneous occurrence of a
Partial Event of Change and further assuming no direct or
indirect encouragement or involvement by the Company or
Employee,
(i) Any Third Party acquires, whether in one transaction or more than one
transaction, or by conversion of non-voting securities, beneficial ownership
(whether voting or investment or both) of a number of the voting securities of
Company which, when added to the shares (if any) of voting securities of Company
already beneficially owned by said Third Party and/or the affiliates of such
Third Party, would comprise twenty-five percent or more of the voting power of
Company's outstanding securities;
(ii) Any Third Party commences a tender or exchange offer (whether for cash,
securities or other consideration) for voting securities of Company which, when
added to the shares (if any) of voting securities of Company beneficially owned
by such Third Party and/or the affiliates of such Third Party, would comprise
twenty-five percent or more of the voting power of Company's outstanding
securities;
(iii) Any Third Party commences a tender or exchange offer (whether for cash
securities or other consideration) for nonvoting securities of Company which are
convertible into voting securities and which, if they were converted and if the
voting securities received thereby were added to the shares (if any) of voting
securities of Company beneficially owned by such Third Party and/or the
affiliates of such Third Party, would result in an amount comprising twenty-five
percent or more of the voting power of Company's outstanding securities;
(iv) Any Third Party solicits proxies or consents to remove a majority of the
Directors of the Company and/or to elect a majority of the Directors of the
Company at any meeting of the Company's stockholders or by written consent.
(a) Any one or more of the events described in Section
8.2(d)(i) through (iv), inclusive, occur without the prior or
contemporaneous occurrence of a Partial Event of Change, and
subsequently a Partial Event of Change occurs.
8.3. Other Definitions.
(a) "Person" as used herein means a natural person,
corporation, unincorporated entity, trust or any other entity
capable of holding an equity interest in a business;
(b) "Group of Persons" as used herein means two or more
Persons who agree to act together for the purpose of
acquiring, holding, voting or disposing of any securities of a
company;
(c) "Third Party" as used herein means any Person or
Group of Persons other than Employee, his immediate family or
the Company;
(d) Company becomes a "Participant" as used herein upon
the happening of the earlier of the following events:
(i) Without the approval of Employee, Company enters into an agreement
providing for the liquidation, dissolution, substantial reduction in business
operations, merger, consolidation, acquisition, or transfer or sale of property
or assets;
(ii) Without the approval of Employee, Company's Board of Directors votes to
approve, or to submit to shareholders for approval, any agreement, plan,
resolution, article, certificate, bylaw, or motion providing for, or approving
any agreement for, liquidation, dissolution, substantial reduction in business
operations, merger, consolidation, acquisition, or transfer or sale of property
or assets; or
(iii) Without the approval of Employee, Company or any Third Party announces, by
press release or any filing pursuant to Federal or State law, rule or
regulations, that it intends to enter into an agreement providing for the
liquidation, dissolution, substantial reduction in business operations, merger,
consolidation, acquisition or transfer or sale of property or assets.
8.4. Rights Upon Partial Event of Change.
If a Partial Event of Change occurs, immediately at the election of
Employee, the option granted pursuant to Section 4 shall become exercisable as
to one half of the Option Shares as to which such option has not yet become
exercisable.
8.5. Rights Upon Event of Change.
(a) Upon the occurrence of an Event of Change, immediately at
the election of Employee, the option granted pursuant to
Section 4 shall become exercisable as to the Option Shares as
to which such option has not yet become exercisable; provided,
however, that for the purpose of this Section 8.5 the
transaction contemplated by the Letter of Intent dated October
10, 1993 among Employee, Infinity Broadcasting Corporation and
the Company shall not constitute an Event of Change.
If any of the events constituting an Event of Change
is not in fact finally consummated or otherwise fails for any
reason (including, but not limited to, any affirmative action
to counter such event taken personally by Employee), Employee
agrees that the exercise schedule for the Option Shares shall
automatically revert to the schedule described in Section 4.2
hereof, except to the extent that Employee has already
exercised his option to purchase some or all of the Option
Shares.
(b) If after the occurrence of any Event of Change,
Company terminates this Agreement or terminates the employment
of Employee, Employee (or his estate) shall continue to
receive, (in addition to the rights described in Section
8.5(a) above and without waiver or prejudice to any other
rights or remedies Employee may have by virtue of any improper
termination), the salary compensation (base salary and cash
incentive compensation) Employee would have been entitled to
receive for the remaining term of this Agreement if it had
continued in force for the full period set forth in Section 2
of this Agreement and if Employee had rendered services during
said period.
9. No Mitigation.
In the event of a breach of this Agreement by Company, Employee shall
have no duty or obligation to mitigate damages. Any income and any other
employment benefits received by Employee before or after the breach, expiration
or termination of this Agreement shall in no way reduce or otherwise affect
Company's obligation to make payments and afford benefits hereunder or Company's
liability for damages by virtue of any breach hereof.
10. Representations and Warranties.
Company represents and warrants that:
(a) it has the requisite corporate power and authority to
enter into this Agreement and to perform its obligations
hereunder;
(b) the execution and delivery of this Agreement by the
Company and the consummation of the transactions contemplated
hereby have been duly authorized by the Compensation Committee
of the Board of Directors of Company;
(c) the execution and delivery of this Agreement by the
Company and the consummation of the transactions contemplated
hereby, including without limitation the issuance, grant and
delivery of the option and the Option Shares hereunder and the
conveyance of rights in connection therewith, are not in
violation of or in conflict with, and will not result in a
breach of the charter or bylaws of the Company or any material
note, bond, mortgage, indenture, deed of trust, license,
lease, judgement, order, decree, statute, rule, regulation,
agreement or other instrument or obligation to which the
Company or any of its properties or assets are or may be
subject.
The Company shall indemnify, defend and hold harmless Employee
from any and all liabilities, claims, actions, judgments, costs, penalties and
expenses (including without limitation legal fees) resulting from or relating to
any breach of the foregoing representations and warranties.
11. Miscellaneous Provisions.
11.1. Notices.
All notices, requests, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by prepaid telegram or first
class mail, postage prepaid, registered or certified, as follows:
If to Employee: Xxxxxx X. Xxxxxx
Westwood One, Inc.
0000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, Xxxxxxxxxx 00000
With Copy to: Xxxxx Xxxxxxxxxxx
Christensen, Miller, Fink, Jacobs,
Xxxxxx, Xxxx & Xxxxxxx, LLP
2121 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
If to Company: Chief Financial Officer
Westwood One, Inc.
0000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Either party may change the address to which such
communications are to be delivered by giving written notice to the other party.
Any notice personally given shall be deemed received upon delivery to the
address designated; any notice by mail as provided in this Section shall be
deemed given on the third business day following such mailing; and any notice
given by telegram as provided herein shall be deemed delivered the business day
following the delivery of such notice to the telegraph company for transmission.
11.2. Entire Agreement.
This Agreement contains all of the terms and conditions agreed upon by
the parties hereto with reference to the subject matter hereof and, upon its
effectiveness, supersedes any and all prior written or verbal employment
agreements. This Agreement may not be modified except by a written instrument
executed by both parties or their permitted successors in interest, if any.
11.3. Assignment.
Except as expressly provided herein, this Agreement shall not be
assignable by any party hereto without the prior written consent of the other
party. Subject to the preceding sentence, this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors and assigns and upon any successor to the Company, whether by merger,
combination, consolidation, acquisition, reorganization or otherwise, as fully
as if such successor were a signatory hereto and the Company shall cause such
successor to, and such successor shall, expressly assume Company's obligations
hereunder. The term "Company", as used in this Agreement shall include all such
successors. Whenever this Agreement provides for any payment to Employee, such
payment may be made instead to Employee's estate (in the event of Employee's
death) or to such beneficiary or beneficiaries as Employee may have designated
in a writing filed with the Company. Employee shall have the right to revoke any
such designation and to redesignate a beneficiary or beneficiaries by written
notice to Company (and to any applicable insurance company) to such effect.
11.4. Counterparts.
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and all of which together shall constitute one and the
same instrument. This Agreement shall be effective as of the date first above
written despite the fact that various dates of execution by the parties hereto
may differ therefrom.
11.5. Waiver.
No action taken pursuant to this Agreement shall be deemed to
constitute a waiver by the party taking such action of complete compliance with
the representations, warranties, covenants and agreements contained herein. No
waiver shall be binding unless in writing and signed by the person making the
waiver. A waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. Any party or parties may waive or modify performance of any act which is
intended solely for their benefit as long as the party for whom such act is
intended to benefit consents to such waiver or modification in writing. 1.1.
Applicable Law and Jurisdiction.
The formation, construction and performance of this Agreement shall be
construed in accordance with the laws of the State of California, except to the
extent that the indemnification provisions set forth in Schedule 4 hereof are
governed by the law of the State of Delaware.
11.6. Severability.
Employee and Company acknowledge that they believe all terms of this
Agreement to be valid, binding and enforceable. However, if any term(s) or
provision(s) of this Agreement or the application thereof to any person or
circumstances shall be held invalid or unenforceable to any extent, the
remainder of this Agreement or the application of such term(s) or provision(s)
to persons or circumstances, other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each and every term of this
Agreement shall be valid and enforced to the fullest extent permitted by law.
Notwithstanding the foregoing, if any material right or benefit of Employee, or
obligation owing to Employee, under Sections 4 or 8, or Sections 3.11 3.2(b) or
(f) is held to be invalid or unenforceable to any extent, Employee may, at his
sole option, by written notice to Company, advise Company that he wishes to
renegotiate some or all of the terms of this Agreement. If within fifteen (15)
business days after receipt of said notice, Company and Employee have not been
able to renegotiate this Agreement to the satisfaction of Employee, Employee may
either declare the Agreement at an end as though it had expired in accordance
with its terms, or reaffirm the Agreement (except those terms declared to be
invalid or unenforceable) in which case Company and Employee shall continue to
render performances hereunder.
11.7. Attorneys' Fees.
In the event of any legal action or other proceeding or arbitration is
brought for enforcement of this Agreement, the prevailing party will be entitled
to recover from the other party reasonable attorneys' fees and other costs
incurred in connection with that action or proceeding, and in any petitions for
appeal or appeals therefrom, in addition to any other relief to which such party
may be entitled.
11.8. Arbitration.
Any dispute or claim in connection with the interpretation, performance
or breach of this Agreement, including any claim based on contract, tort or
statute, shall be settled, at the request of Employee, in his sole and absolute
discretion, by arbitration conducted in Los Angeles California in accordance
with the then existing Rules for Commercial Arbitration of the American
Arbitration Association, and judgment upon any award rendered by the arbitrator
may be entered by any State or Federal court having jurisdiction thereof. The
sole arbitrator shall be a retired or former judge of the Los Angeles Superior
Court. Any controversy concerning whether a dispute is an arbitrable dispute
shall be determined by the arbitrator. The provisions of California Code of
Civil Procedure Section 1283.05 are incorporated into and made applicable to
this Agreement. Depositions may be taken and discovery may be obtained in any
arbitration under this Agreement in accordance with Section 1283.05. In any
award, the arbitrator shall allocate against the losing parties all costs of
arbitration, including without limitation the fees of the arbitrator, and
reasonable attorneys' fees, costs and expert witness expenses of the parties and
all costs and expenses in connection with enforcing any arbitration award. The
parties intend that this agreement to arbitrate be valid, enforceable and
irrevocable; provided, however that if Employee does not elect to proceed by
arbitration, then any dispute or claim shall be resolved by judicial proceeding
solely and exclusively in Superior Court for the County of Los Angeles,
California or the Federal District Court of the Central District of California.
11.9. Effectiveness.
This Agreement is effective immediately, except that Section 3 of the
Prior Agreement shall remain in effect through November 30, 1998.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
_______________________________ WESTWOOD ONE, INC.
Xxxxxx X. Xxxxxx
(the "Employee")
By: ____________________________
Chairman,
Compensation Committee
SCHEDULE 1
BASE SALARY
Contract Year Amount
First $500,000
Second $500,000
Third $500,000
Fourth $500,000
Fifth $500,000
EXHIBIT 10.1
