This
agreement (“ Agreement ”) is entered into by and
between David Hillman (“ Employee ”) and
Westwood One, Inc., a Delaware corporation (the “
Company ”).
WHEREAS, the Company is in the business of selling radio
broadcast advertising, and developing, producing and broadcasting
radio programming and traffic, news, sports, weather and other
information reports; and
WHEREAS, Employee has extensive management and legal
experience; and
WHEREAS, the Company desires to engage the services of
Employee to serve as the Senior Vice President and General Counsel
of the Company 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 employs Employee, and
Employee accepts such employment, and 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 no later than October 16, 2004 (the
“ Effective Date ”) and shall continue in effect
until October 15, 2006 (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 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 90 days prior written
notice shall apply. The period from the Effective Date through the
date 90 days from the date any notice of termination referred
to above is delivered is hereinafter referred to as the
“Employment Period”.
3. Services to be Rendered by Employee.
(a) During
the Employment Period, Employee shall serve as the Senior Vice
President and General Counsel of the Company or in such other
position as is determined from time to time by the Company’s
Chief Executive Officer (“ Chief Executive Officer
”), President (“ President ”), the Board
of Directors (the “ Board of Directors ”) or
their designee. Subject to the direction of the Chief Executive
Officer or President, Board of Directors or their designee,
Employee shall perform such 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
Page 1
reasonable
lawful directions and instructions by and on the part of the Chief
Executive Officer or President, the Board of Directors or their
designee 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
as reasonably specified from time to time by the Chief Executive
Officer, the President, the Board of Directors or their designee.
Subject to the foregoing, Employee’s specific
responsibilities shall include overseeing and directing all aspects
of legal affairs for the Company. The Company may, in its sole
discretion, restrict, expand, change or otherwise alter the
Employee’s duties, title or responsibilities. Any change
shall be binding on Employee for all purposes of this Agreement.
Notwithstanding the foregoing, Employee shall be employed at and
report into the Company’s offices in the New York City
metropolitan area.
(c) Employee
acknowledges that Employee will have and owe fiduciary duties to
the Company and its shareholders including, without limitation, the
duties of care, confidentiality and loyalty.
(d) Employee
acknowledges that Employee has received a copy of the
Company’s Sexual Harassment Policies and Procedures, Code of
Ethics and Conflicts of Interest policy, and understands and has
acknowledged such policies.
(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 monthly base
salary (the “ Base Salary ”) of: (i) $22,916.66,
and (ii) beginning on October 16, 2005,
$25,000.
(b)
Discretionary Bonus. Employee shall be eligible for an
annual discretionary bonus valued at up to $100,000 in the sole and
absolute discretion of the Board of Directors or its Compensation
Committee or their designee. Any cash component of any bonus will
be payable in accordance with the Company’s normal payroll
practices. Employee shall not be eligible for any bonus for a
calendar year, pro-rated or otherwise, if the Employee is not an
Employee of the Company: (i) at the end of the applicable
calendar year; (ii) at the time such bonus is to be paid, or
(iii) if Employee has breached this Agreement.
(c)
Stock Options. Subject to the approval of and in the sole
and absolute discretion of the Board of Directors or its
Compensation Committee or their designee, Company management shall
recommend that the Compensation Committee grant Employee an award
of 25,000 stock options in February 2005.
(d)
Paydates; Customary Employee Deductions. Employee’s
Base Salary shall be payable semi-monthly in arrears on the
fifteenth day and on the last day of each calendar month or such
other date in conformity with the Company’s payroll policies
in effect from time to time. For any and all compensation or bonus
paid by the Company to Employee pursuant to this
Page 2
Section 4,
the Company shall be entitled to deduct income tax withholdings,
social security and other customary employee deductions in
conformity with the Company’s payroll policies in effect from
time to time.
5. Expenses. Subject to compliance by Employee with
such policies regarding expenses and expense reimbursement as may
be adopted from time to time by the Company, the Company shall
reimburse Employee, or cause Employee to be reimbursed, in cash for
all reasonable expenses. The Company currently maintains trade
relationships for restaurants, hotels, automobile rentals, courier
services, promotional items, etc. which may be used from time to
time to cover ordinary and necessary expenses of
Employee.
(a)
Company Plans; Insurance. During the Employment Period,
Employee shall be entitled to participate in all benefit plans,
programs, group insurance policies, vacation sick leave and other
benefits that may from time to time be established by the Company
for its employees, provided that Employee is eligible under the
respective provisions thereof.
(b)
Vacation. Employee shall be entitled each year to a vacation
in accordance with the prevailing practice of the Company in regard
to vacations for its employees.
7. Termination of Employment.
(a) During
the Employment Period, the Company shall have the right, if
exercised in good faith, to terminate the employment of Employee
hereunder immediately by giving 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 provision of this
Agreement (other than Sections 8, 9 and 12 hereof, which are
governed by Section 7(a)(iv) hereof); (B) willfully
breached any statutory or common law duty; or (C) breached
Section 3(c) or 3(d) of this Agreement.
(ii) if
Employee commits 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
Page 3
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, 9 or 12
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’s Related
Entities (as defined in Section 20 hereof), 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) 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. No
Conflict of Interest; Proper Conduct; Restricted
Activities.
(a) The
Company and Employee acknowledge and agree that the Company has
divulged and expects to divulge to Employee certain confidential
information and trade secrets relating to the Company’s
business, provide information relating to the Company’s
customer base and otherwise provide Employee with the ability to
injure the Company’s goodwill unless certain reasonable
restrictions are imposed upon Employee which are contained in this
Section. Employee agrees that such restrictions are reasonable and
necessary to protect the goodwill, confidential information and
other legitimate business interests of the Company and such
restrictions are entered into freely by Employee. Employee
acknowledges that the Company’s business and Employee’s
responsibilities are nationwide. The confidential information and
trade secrets expected to be divulged to Employee shall include
information and trade secrets regarding the Company’s
business and operations nationwide.
(b) While
employed by the Company, Employee will not compete with the
Company, directly or indirectly, either for Employee or as a member
of any association, partnership, joint venture, limited liability
partnership or limited liability company or other entity, or as a
stockholder (except as a stockholder of less than one percent (1%)
of the issued and outstanding stock of a publicly-held corporation
whose gross assets exceed $100,000,000), investor, officer or
director of a corporation, or as an employee, agent, trustee,
associate or consultant of any person, association, trust,
partnership, joint venture, registered limited liability
partnership or limited liability company, corporation or other
entity, in any business in competition with that carried on by the
Company or its Related Entities. Employee shall not, without the
Company’s prior written consent, engage in any activity
during Employee’s employment that would conflict with,
interfere with, impede or hamper the performance of
Employee’s duties for the Company or would otherwise be
prejudicial to the Company’s business interests. Employee
shall not commit any act or become involved in any situation or
occurrence that, in the Company’s reasonable judgment, could
tend to bring Employee or the Company into public disrepute,
contempt, scandal or ridicule, could provoke,
Page 4
insult or
offend the community or any group or class thereof, or could
reflect unfavorably upon the Company or any of its Sponsors or
Affiliates. Employee shall comply with all applicable laws and
regulations governing the Company and its business, including
without limitation, regulations promulgated by the Federal
Communications Commission or any other regulatory
agency.
(c) Employee
further agrees that, for a period of one (1) year from and
after Employee’s last day of employment under this Agreement
(the “ Restricted Period ”), regardless of
cause, Employee will not engage in or carry on, directly or
indirectly, either for Employee or as a member of an association,
trust, partnership, joint venture, limited liability partnership or
limited liability company or other entity, or as a stockholder
(other than as a stockholder of less than one percent (1%) of the
issued and outstanding stock of a publicly-held corporation, whose
gross assets exceed $100,000,000), or as an investor, officer or
director of a corporation, or as an employee, agent, trustee,
associate or consultant of any person, association, trust,
partnership, corporation, joint venture, registered limited
liability partnership or limited liability company, or other
entity, any Restricted Activity. Restricted Activities shall
consist of: (i) providing services to a traffic, news, sports,
weather or other information report gathering or broadcast service
or to a radio network or syndicator, or any direct or indirect
competitor of Westwood or its Related Entities;
(ii) soliciting Sponsors and dealing with accounts with
respect thereto; (iii) soliciting Affiliates to enter into any
contract or arrangement with any person or organization to provide
traffic, news, weather, sports or other information report
gathering or broadcast services or national or regional radio
network or syndicated programming; or (v) forming or providing
operational assistance to any business or a division of any
business engaged in the foregoing activities.
(d) Employee
further covenants and agrees that during the Restricted Period,
Employee will not either individually, or on behalf of any other
person, association, trust, partnership, joint venture, limited
liability partnership or limited company or other entity as an
owner, member, partner, agent, trustee, shareholder, joint venturer
or otherwise, directly or indirectly, solicit any customer and/or
Sponsor of the Company or its Related Entities in competition with
the Company.
|
