Exhibit 10.1
EMPLOYMENT
AGREEMENT
This
Agreement (“ Agreement ”) is entered into by and
between Steven Kalin (“ Employee ”) and Westwood
One, Inc. (the “ Company ”).
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 on July 7, 2008 (the
“ Effective Date ”) and shall continue in effect
until the third anniversary thereof (the “ Term
”). If the Company desires not to extend this Agreement, it
shall deliver written notice to Employee on or prior to the 90
th day
immediately preceding the expiration of the Term of its intention
to terminate this Agreement effective on the last day of 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 until such time as either
party shall deliver written notice to the other party and this
Agreement shall terminate thirty (30) days after the giving of
such notice. The period from the Effective Date through the date of
termination is hereinafter referred to as the “ Employment
Period ”.
3. Services to be Rendered by Employee.
(a) During the Employment Period, Employee shall serve as
Executive Vice President and Chief Operating Officer. Employee
shall perform such duties as from time to time may be delegated to
Employee and will continue to perform duties as requested by the
CEO of the Company. 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, the Board of
Directors (the “Board”) 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.
Employee shall report directly to the Chief Executive Officer and
shall be based out of the Company’s offices located in the
New York City metropolitan area.
(b) The Company may from time to time call on Employee to
perform services related to the business of developing and
broadcasting network and syndicated radio programming and 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 and
Affiliates (as such terms are defined in Section 11 hereof) or
dealing with their accounts or other activities related to the
Company’s business, as reasonably requested from time to time
by the Chief Executive Officer, the President, the Board of
Directors or their designee.
(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.
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(d) EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS RECEIVED A
COPY OF THE COMPANY’S SEXUAL HARASSMENT POLICIES AND
PROCEDURES, CODE OF ETHICS AND CODE OF CONDUCT, AND UNDERSTANDS AND
AGREES TO ABIDE BY SUCH POLICIES.
4. Compensation.
(a) Base Salary. For the services to be rendered by
Employee during the Employment Period, the Company shall pay
Employee, and Employee agrees to accept a monthly base salary (the
“ Base Salary ”) of $37,500 for the Employment
Period, payable in accordance with the Company’s normal
payroll practices. Employee shall be eligible for annual increases
in his Base Salary in the sole and absolute discretion of the
Compensation Committee or their designee.
(b) Discretionary Bonus. Employee shall be eligible
for an annual discretionary bonus valued at up to $450,000 for each
calendar year during the Employment Period (which discretionary
bonus shall be pro-rated for 2008) in the sole and absolute
discretion of the Board of Directors or its Compensation Committee
or their designee. The Company may use Employee’s and the
Company’s achievement of financial goals as general
guidelines to determine Employee’s eligibility for a
discretionary bonus. Any cash component of any bonus will be
payable in accordance with the Company’s normal payroll
practices and no later than the date the majority of
“Comparable Employees” (as defined below) are paid, but
in no event later than April 30 of the applicable calendar
year. Employee shall not be eligible for any bonus for a calendar
year, pro-rated or otherwise, if (i) Employee is not an
Employee of the Company at the end of the applicable calendar year,
or (ii) Employee has materially breached this Agreement, which
breach remains uncured in accordance with Section 6(a) hereof.
(c) Equity Compensation . Company management hereby
agrees that prior to the Effective Date, it shall recommend that
the Compensation Committee grant Employee on the Effective Date an
award of equity compensation of stock options to purchase 425,000
shares of Company common stock to vest in three equal installments
on each anniversary of the Effective Date, subject to the terms and
conditions of the Company’s equity compensation plan (such
award, the “ 2008 Signing Award ”). The exercise
price of such stock options will be the closing price of the
Company’s common stock on the date of grant by the
Compensation Committee (i.e., the Effective Date).
(d) Equity Awards. Employee shall be eligible for such
future grants of equity compensation recommended by Company
management, subject to the approval of and in the sole and absolute
discretion of the Board of Directors or its Compensation Committee
or their designee. All equity compensation granted to Employee,
including such awards made pursuant to Sections 4(c) and 4(d)
hereof, shall be granted subject to the terms and conditions of the
Company’s equity compensation plan, and using such form award
as the Compensation Committee has approved for grants to Company
employees.
(e) Benefits. During the Employment Period, Employee
shall accrue vacation on a monthly basis and at a rate of four
(4) weeks per year (pro-rated for partial years);
provided , however , that Employee shall be entitled
to three (3) weeks of vacation during 2008. Except as
expressly set forth herein, any vacation time shall be subject to
prevailing practice and/or policies of the Company in regard to
vacations for its employees. Employee shall be entitled to
participate in all benefits plans that may be established by the
Company for employees that report directly to the CEO (such
employees, “ Comparable Employees ”), subject to
the terms and conditions of such plans.
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(f) Total Compensation. Employee agrees and
acknowledges by his signature hereto that the compensation set
forth in this Section 4 constitutes all of the compensation
payable to Employee for his services hereunder and that no other
compensation shall be due to Employee hereunder.
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.
6. Termination of Employment.
(a) During the Employment Period, the Company shall have the
right to terminate the employment of Employee hereunder immediately
by giving notice thereof to Employee if any of the following has
occurred, which notice shall state the circumstances or events
constituting Cause (each, a “ Cause Event ”);
provided , that , in the case of clauses
(i) through (iii) of this Section 6(a), Employee
shall be given a reasonable opportunity to cure, but in no event
more than ten (10) business days, to the extent such act or
failure to act is curable:
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(i) |
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if Employee has (A) failed,
refused or habitually has neglected to carry out or to perform the
reasonable duties required of Employee hereunder or otherwise
materially breached any provision of this Agreement (other than
Section 7, 8 or 10 hereof, which are governed by Section
6(a)(iii) hereof), (B) willfully breached any statutory or
common law duty, including any fiduciary duty owed to the Company;
(C) breached Section 3(c) or 3(d) of this Agreement; or
(D) violated any of the Company’s internal policies or
procedures.
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(ii) |
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if Employee is convicted of, or
enters into a plea of nolo contendere or guilty to, a
felony or a crime involving moral turpitude, or if Employee has
willfully engaged in conduct which would injure the reputation of
the Company in any material respect or otherwise adversely affect
its interests in any material respect if Employee were retained as
an employee of the Company;
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(iii) |
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if Employee breaches any of the
provisions of Section 7, 8 or 10 hereof or breaches any of the
terms or obligations of any other non-competition and/or
confidentiality agreements entered into between Employee and the
Company, or the Company’s Related Entities, if any;
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(iv) |
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if Employee commits an act of
fraud, misrepresentation or dishonesty related to his employment
with the Company, or steals or embezzles assets of the Company;
or
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(v) |
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if Employee engages in a conflict
of interest or self-dealing.
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For purposes of this
Section 6(a), no act or failure to act on the part of Employee
shall be considered “willful” unless it is done, or
omitted to be done, by Employee in bad faith or without a
reasonable basis for belief that such act or failure to act is in
the best interests of the Company.
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(b) Employee’s employment with the Company shall
automatically terminate (without notice to Employee’s estate)
upon the death of Employee. Employee’s employment with the
Company may be terminated upon ten (10) day’s prior
written notice by the Company to Employee upon Employee’s
Disability. For purposes of this Agreement, the term
“Disability” means Employee’s inability, 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 90 days or for a non-continuous period of
120 days in the aggregate in any 365-day period;
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.
(c) In the event of any termination of Employee’s
employment (provided that the benefit described in clause (ii)
below shall not be paid in the event of a termination of employment
by the Company upon a Cause Event), 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
termination, (ii) subject to the terms of Section 4(b) hereof,
any annual discretionary bonus earned for any completed calendar
year immediately preceding the date of termination, but not yet
paid; (iii) subject to the terms of Section 5 hereof,
reimbursement for any business expenses properly incurred and paid
prior to and including the date of termination;
(iv) Employee’s then current entitlement, if any, under
the Company’s employee benefit plans and programs, including
payment for any accrued and unused vacation in accordance with
Company’s standard policy; and (v) no other
compensation. The parties agree that the payments set forth in this
Section 6(c) constitute all of Company’s obligations,
monetary or otherwise, to Employee under the terms of this
Agreement in the event of Employee’s termination pursuant to
Section 6(a) or 6(b). Additionally, if Employee is terminated
pursuant to Section 6(a), all of Employee’s equity
compensation (including, without limitation, any granted pursuant
to this employment agreement or otherwise), vested and unvested,
shall terminate and expire, except in the case of vested stock
options which Employee has exercised prior to the date of
termination (for the avoidance of doubt, all vested equity
compensation (except for stock options which have been exercised)
shall be forfeited in the event of a termination pursuant to
Section 6(a)). Notwithstanding the foregoing, in the case of a
termination pursuant to Sections 6(d) or 6(e), additional payments
shall be due as expressly set forth below.
(d) The Company may terminate Employee’s employment
hereunder during the Term effective at any time upon written notice
to Employee. In the event that: (I) the Company terminates
Employee’s employment other than pursuant to Section
6(a) or 6(b) during the first year of the Term or
(II) Employee is terminated in connection with a “Change
of Control”, subject in all cases to Employee’s
executing and not revoking a waiver and general release
substantially in the form attached as Exhibit A hereto,
which may be modified for changes in law and for consistency with
the Company’s standard form required for other senior
officers of the Company from time to time (the “
Release ”): (x) the Company shall pay Employee
the lesser of (the lesser of (i) or (ii), the “
Termination Amount ”): (i) remaining Base Salary
due to Employee through the end of the Term, to be paid
in equal payments over the remainder of the Term on a schedule
that mirrors the Company’s then effective payroll practices
and (ii) two times the annual Base Salary to be paid
in equal installments over the two-year period on a schedule
that mirrors the Company’s then effective payroll practices;
provided , however , that in the case of (i) or
(ii) the six-month delay set forth in Section 17(b) shall
apply to such amounts to the extent they exceed the Separation Pay
Limit (as defined in Section 17(b)); (y) if Employee is
terminated prior to the first anniversary of the Effective Date,
one third (1/3) of the 2008 Signing Award shall vest effective on
the date of termination and shall be
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exercisable for the
longer of: (i) the date of termination through the first
anniversary of the Effective Date and (ii) ninety
(90) days from the date of termination; and (z) if
Employee is terminated upon or within twenty-four (24) months
following a Change in Control (as defined below) of the Company,
all outstanding equity awards held by Employee shall become fully
vested and immediately exercisable and shall remain exercisable in
accordance with the terms and conditions of the applicable equity
plan and award agreements under which they were granted. For the
avoidance of doubt, it is understood and agreed that
notwithstanding anything contained herein to the contrary, Employee
shall have no duty to mitigate in the event that Company exercises
its rights pursuant to this Section 6(d). Notwithstanding the
foregoing, if either (I) the Company terminates
Employee’s employment other than pursuant to Section
6(a) or 6(b) during the second or third year of the Term, or
(II) Employee elects to terminate his employment for Good
Reason as expressly described in Section 6(e) below, instead of the
Termination Amount set forth in clause (x) above, the Company
shall pay Employee: (i) two times the annual Base Salary to be
paid in equal installments over the two-year period on a
schedule that mirrors the Company’s then effective payroll
practices if Employee is terminated at any time during the second
year of the Term and (ii) one times the annual Base Salary to
be paid in equal installments over the one-year period on a
schedule that mirrors the Company’s then effective payroll
practices if Employee is terminated at any time during the third
year of the Term; provided , however , that in the
case of (i) or (ii) the six-month delay set forth in
Section 17(b) shall apply to such amounts to the extent they exceed
the Separation Pay Limit (as defined in Section 17(b)). For
the avoidance of doubt, clause (z) shall also apply to such
termination to the extent applicable.
(e) Provided the Company has not notified Employee that he is
being terminated pursuant to Sections 6(a) and 6(b) hereof,
Employee may terminate his employment hereunder effective at any
time upon written notice to the Company for Good Reason,
provided such notice is given to the Company within thirty
(30) days after the triggering event. For purposes hereof,
“Good Reason” shall mean the occurrence of one of the
following: (i) a material diminution in Employee’s
authority or responsibilities; or (ii) a material diminution
in Employee’s Base Salary or Employee’s title.
(f) The Company shall provide the Release to Employee within
seven (7) business days following the date of termination. In
order to receive the payments and benefits under Section 6(d),
Employee shall be required to sign the Release within 21 or
45 days after the date it is provided to him, as required by
applicable law, and not revoke it within the seven day period
following the date on which it is signed. All payments delayed
pursuant to the foregoing, except to the extent delayed pursuant to
Section 17(b), shall be paid to Employee in a lump sum on the
first Company payroll date on or following the sixtieth (60
th )
day after the date of termination, and any remaining payments due
under this Agreement shall be paid or provided in accordance with
the normal payment dates specified for them herein.
7. No Conflict of Interest; Proper Conduct. (a)
(x) During the Term and in any event, not less than ninety
(90) days after the Employment Period if Emp
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