SECURITIES
AND EXCHANGE
COMMISSION
Washington,
D.C.
20549
FORM
8-K
CURRENT
REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF
THE SECURITIES EXCHANGE ACT OF
1934
Date
of Report: March 31, 2008 (Date
of earliest event reported)
Commission
File No.:
0-25969
RADIO
ONE, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
(State
or other jurisdiction of
incorporation
or organization)
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52-1166660
(I.R.S.
Employer Identification No.)
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5900
Princess Garden Parkway,
7th
Floor
Lanham,
Maryland 20706
(Address
of principal executive offices)
(301) 306-1111
Registrant’s
telephone number, including area code
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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o
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Written
communications pursuant to
Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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ITEM
1.01.
Entry Into Material
Definitive
Agreement
On
March 31, 2008, Radio One executed an employment agreement with Peter D.
Thompson, the Company’s Chief Financial Officer. The employment agreement is a
three year arrangement with an initial annual base salary of $375,000 with
an
initial cash bonus of up to $75,000 for the year ending December 31,
2008. Under the terms of the agreement, Mr. Thompson will also
receive of 75,000 shares of restricted stock and options for another 75,000
shares, all to vest ratably over the term of the agreement. A copy of
the employment agreement is attached to this report on Form 8-K as Exhibit
10.1
and the foregoing summary of its terms is qualified in its entirety by reference
to the actual terms of the agreement.
ITEM
9.01.
Financial Statements
and
Exhibits.
(c) Exhibits
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Exhibit
Number
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Description
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10.1
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Employment
Agreement dated as of March 31, 2008 between Radio One, Inc. and
Peter D.
Thompson.
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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RADIO
ONE, INC.
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/s/
Alfred Liggins
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April
2, 2008
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Alfred
Liggins
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Chief
Executive Officer
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EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of
the 31st day of March, 2008 (“Effective Date”), by and between Radio
One, Inc. (“Company”), a Delaware corporation having its principal place of
business at 5900 Princess Garden Parkway, Lanham, Maryland, and Peter D.
Thompson (“Employee”), an individual residing at 2701 Calvert Street,
Apartment 825, Washington, D.C.
RECITALS
WHEREAS,
Company is engaged in the business of owning and managing broadcast media,
directly and through subsidiaries and affiliates, including fifty-four (54)
radio stations in seventeen (17) markets in the United States; and
WHEREAS,
Company desires to hire Employee to perform such services as described below,
in
accordance with the terms of this Agreement, for the benefit of Company and
its
subsidiaries and affiliates; and
WHEREAS,
Employee desires to be hired by Company, in accordance with the terms
hereof;
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants
hereinafter set forth, and for good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, Company and Employee, intending
to
be legally bound, hereby agree as follows:
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1.
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Employment.
Company hereby hires Employee as Chief Financial
Officer.
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2.
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Term.
Employee’s employment under this Agreement shall commence on
February 20, 2008 (“Commencement Date”) and shall continue in full
force and effect for a period of three (3) years until February 19,
2011 (“Initial Term”), unless earlier terminated by Company pursuant to
the provisions of Section 10 hereof. Company, in its sole discretion,
shall have the right to renew this Agreement for an additional period
of
one (1) year (“Renewal Term”) on the same terms and conditions as set
forth herein, by giving notice to Employee of Company’s intent to renew on
or prior to the expiration date of the Initial Term (hereinafter,
the
Initial Term and/or any Renewal Term, as the case may be, may be
referred
to as “Term”).
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3.
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Duties.
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3.1.
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During
the Term of this Agreement, Employee hereby agrees to the following,
without limitation:
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(a)
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Employee
shall perform such duties as are usual and customary for a Chief
Financial
Officer, including achieving annual business and performance objectives
as
established by the Chief Executive
Officer.
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(b)
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Employee’s
performance shall be at the direction of, and in accordance with
the
determination of, the Chief Executive
Officer.
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3.2.
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Employee
shall devote Employee’s best efforts to the business and affairs of
Company and the performance of Employee’s duties under this
Agreement.
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3.3.
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Employee
shall devote Employee’s full professional time, energy, and skill to the
performance of the services in which Company is engaged, at such
time and
place as Company may direct. Employee shall not undertake, either
as an
owner, director, shareholder, employee or otherwise, the performance
of
services for compensation (actual or expected), either directly or
indirectly, on behalf of Employee or any other person or entity,
without
the prior express written consent of
Company.
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3.4.
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The
normal working hours of Employee shall be as established by the Chief
Executive Officer.
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4.
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Place
of
Performance. In connection with Employee’s performance
during the Term, Employee shall be based in Lanham, Maryland and
shall
reside in the Washington, D.C. metropolitan
area.
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5.
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Compensation.
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(a)
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Base
Compensation. Company shall pay Employee base
compensation in the amount of Three Hundred Seventy Five Thousand
Dollars
($375,000) per year, subject to applicable federal, state, and local
deductions and payable in accordance with Company’s standard payroll
schedule and policy. On each anniversary date of Employee’s
employment under this Agreement during the Term hereof, Employee
shall be
entitled to no less than a three percent (3%) increase in Employee’s base
compensation, subject to applicable federal, state, and local deductions
and payable in accordance with Company’s standard payroll schedule and
policy.
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(b)
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Signing
Bonus. Company shall pay to Employee a one-time Signing
Bonus in the amount of Twenty Thousand Dollars ($20,000), subject
to
applicable federal, state, and local deductions and payable in
a lump sum within thirty (30) days after the execution of this Agreement.
Employee agrees that if Employee’s employment with Company is terminated
voluntarily or for cause within one year from Employee’s Commencement
Date, Employee shall repay Company a pro rata share
of the
Signing Bonus at the rate of one-twelfth (1/12th)
for each month or portion of a month that Employee’s employment is less
than twelve (12) months. Employee further agrees that Company shall
be
entitled to withhold from any compensation due Employee the amount
of any
portion of the Signing Bonus required to be repaid to
Company.
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(c)
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Discretionary
Annual
Bonus. For the calendar year ending December 31, 2008,
Employee shall be eligible to receive annual discretionary bonus
compensation in an amount not to exceed Seventy Five Thousand Dollars
($75,000) provided that (i) Employee remains employed by Company as
of December 31, 2008 and (ii) Employee’s performance satisfies
certain reasonable criteria as determined by Company’s Chief Executive
Officer. Such payment shall be made in a cash lump sum no later
than March 15, 2009. Effective as of January 1, 2009,
Employee shall be eligible to receive discretionary bonus compensation
in
an amount to be determined by Company’s Chief Executive Officer at the
conclusion of each fiscal year during which (i) Employee remains
employed by Company and (ii) Employee’s performance satisfies certain
criteria as determined by Company’s Chief Executive
Officer. Company reserves the right to amend or change, in its
sole discretion, the incentive compensation program. Any bonus
payments due Employee shall be made to Employee as a cash lump sum
no
later than March 15 following the end of the calendar year for which
the
bonus is earned.
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6.
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Vacation,
Benefits,
and Expenses.
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6.1.
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Employee
shall be eligible to accrue up to twenty (20) vacation days annually,
in
accordance with Company policies and
procedures.
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6.2.
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Employee
shall be eligible to participate in the employee benefit plans and
programs that Company generally makes available to its employees,
subject
to the terms and conditions of each such benefit plan or
program. Notwithstanding the foregoing, any severance payable
to Employee shall be governed solely by this Agreement, and Employee
shall
not be eligible to participate in any severance program of general
application maintained by Company.
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6.3.
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Company
reserves the right to amend or change, in its sole discretion, any
of its
employee benefit plans and
programs.
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6.4.
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Company
shall reimburse Employee for all Company-approved business, travel,
lodging, meal and other expenses incurred or paid by Employee in
the
performance of Employee’s duties hereunder, provided that Employee submits
proper documentation of such expenses, including receipts, expense
statements, vouchers, and/or such other supporting information, in
accordance with standard Company
policy.
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6.5.
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Employee
shall be entitled to a car allowance in an amount not to exceed One
Thousand Dollars ($1,000) per
month.
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7.
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Stock
Options and
Restricted Stock Grant.
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(a)
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Stock
Options.
Effective as of the next monthly grant date under Company’s equity
compensation plan following the Commencement Date, Company shall
grant to
Employee options to purchase Seventy Five Thousand (75,000) shares
of
Class D Common Stock (the “Options,” and the shares of Class D Common
Stock obtainable upon exercise of such Options, the “Option
Share(s)”). Except as set forth in this Section 7(a), all
terms and conditions of such Options (and such Option Shares) shall
be set
forth in Company’s equity compensation plan and such documentation as
Company may prescribe. Notwithstanding the foregoing, Employee
acknowledges and agrees that the Options grant may be deferred until
the
month following the next monthly grant (or successive months) if,
in
Company’s sole discretion, such a deferral is deemed necessary to comply
with insider trading rules and
regulations.
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(i)
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The
price payable by Employee for each Option Share shall be as set forth
in
the Option Agreement.
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(ii)
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The
Options to purchase Option Shares shall vest in accordance with the
following schedule:
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Vesting
Date
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Vested
Percentage
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February
19, 2009
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33
1/3%
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February
19, 2010
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66
2/3%
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February
19, 2011
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100%
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(iii)
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Upon
termination of Employee’s employment hereunder, any then un-exercisable
Option shall expire and be forfeited immediately. Employee’s
right to exercise any exercisable Option following termination of
employment also shall expire and be forfeited to the extent that
such
Option has not been exercised on or before the ninetieth (90th)
day following such termination.
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(iv)
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All
unexercised Options to acquire Option Shares shall expire on the
tenth
(10th)
anniversary of their respective dates of
grant.
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(v)
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During
the Term of Employment, Employee may not transfer any
Options.
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(b)
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Restricted
Stock
Grant. Effective as of the next monthly grant date under Company’s
equity compensation plan following the Commencement Date, Company
shall
grant to Employee Seventy Five Thousand (75,000) shares of Class D
Common Stock (in the aggregate, the “Initial Restricted Stock”), subject
to certain vesting and transfer restrictions set forth in this
Section 7(b), the equity compensation plan, and such documentation as
Company may prescribe. Notwithstanding the foregoing, Employee
acknowledges and agrees that the grant may be deferred until the
month
following the next monthly grant (or successive months) if, in Company’s
sole discretion, such a deferral is deemed necessary to comply with
insider trading rules and
regulations.
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(i)
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Employee
shall be responsible for the payment of any withholding tax requirement
arising from the grant of the awards described in
Section 7(b). The amount of withholding tax required with
respect to the Initial Restricted Stock award (the “Withholding Amount”)
shall be determined by Company’s Corporate Controller or other appropriate
officer of Company, and Employee shall furnish such information and
make
such representations as such officer requires to make such
determination. Company shall notify Employee of the Withholding
Amount and Employee shall pay such Withholding Amount to Company,
either
in cash, by certified cashier’s check, or by delivery to Company of a full
recourse promissory note of Employee in form and substance acceptable
to
Company. Company shall remit the Withholding Amount to the
appropriate taxing authority or
authorities.
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(ii)
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The
Initial Restricted Stock shall vest in accordance with the following
vesting schedule:
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Vesting
Date
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Vested
Percentage
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February
19, 2009
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33
1/3%
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February
19, 2010
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66
2/3%
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February
19, 2011
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100%
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(iii)
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During
the Term of Employment, Employee may not transfer any unvested Initial
Restricted Stock, or any unvested shares of other awards granted
under
Section 7(b). Any transfer or attempted transfer of any
such unvested share in violation of this Section shall be null and
void,
and Company shall not record such transfer on its books or treat
any
purported transferee of such unvested share as the owner of such
security
for any purpose.
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(iv)
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Employee
hereby acknowledges that any Class D Common Stock granted under
Section 7(b) has not been registered under the Securities Act of
1933, as amended, and accordingly, such Class D Common Stock may
be
subject to certain transfer restrictions (in addition to the transfer
restrictions on such Class D Common Stock set forth in
Section 7(b)(iii) hereof). The certificate(s) representing
such shares of Class D Common Stock will bear the following
legend:
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“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT
OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY ALSO BE SUBJECT TO ADDITIONAL RESTRICTIONS
ON TRANSFER, CERTAIN REPURCHASE OPTIONS, AND CERTAIN OTHER AGREEMENTS SET FORTH
IN AN EMPLOYMENT AGREEMENT BETWEEN THE COMPANY AND THE SIGNATORY
THERETO. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER
HEREOF AT THE COMPANY’S PRINCIPAL PLACE OF BUSINESS WITHOUT
CHARGE.”
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8.
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Exclusive
Services. During the Term of this Agreement, Employee
shall not tender any services of the kind or nature provided for
under
this Agreement, either directly or indirectly, on behalf of Employee
or
any other person or entity, without the prior express written consent
of
Company.
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9.
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Personal
Conduct. Employee agrees to comply with all applicable
policies, requirements, directions, requests, and rules of Company,
and
further agrees to not at any time engage in or commit any act that
reasonably could be considered to reflect unfavorably on Company’s
reputation, bring Company into public scandal, or subject Company
to
ridicule, as determined solely by Company, including but not limited
to
matters of moral turpitude, theft, fraud, or deceit. Company
agrees to act and exercise its discretion in good faith in determining
whether Employee’s conduct may be in violation of this Section
8.
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10.
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Termination.
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(a)
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Termination
for
Cause. Employee’s employment may be terminated at any
time for cause. For purposes of this Agreement, “cause” shall
mean any one or more of the
following:
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(i)
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Employee’s
breach of any material provision of this
Agreement.
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(ii)
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Employee’s
failure to maintain legal status or eligibility to work in the United
States.
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(iii)
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Employee’s
arrest, indictment, or conviction on a felony charge or other crime
involving moral turpitude, or plea of guilty or nolo contendere to a
felony charge or other crime involving moral
turpitude.
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(iv)
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Employee’s
insubordination or willful refusal to follow the reasonable instructions
of Employee’s superiors, including but not limited to the Chief Executive
Officer or the Board of Directors of
Company.
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(v)
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Employee’s
failure to perform the duties of the Employee’s position in a satisfactory
manner.
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(vi)
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Employee’s
willful disregard of Company policies and
procedures.
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(vii)
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Employee’s
use, possession, or distribution of illegal drugs or a non-prescribed
controlled substance, or abuse of alcohol, or Employee’s being under the
influence of any of the foregoing, on Company premises or during
the
performance of Employee’s duties.
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(viii)
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Employee’s
fraud, misappropriation of funds, embezzlement, theft or acts of
similar
dishonesty.
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(ix)
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Employee’s
intentional or willful misconduct that may subject Company to criminal
or
civil liability.
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(x)
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Breach
of Employee’s duty of loyalty, including the diversion or usurpation of
corporate opportunities properly belonging to
Company.
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(xi)
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Employee’s
falsification of Company documents or other misrepresentation related
to
the business and affairs of
Company.
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(xii)
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Any
conduct of Employee that adversely affects Company’s reputation and
goodwill in the community.
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(b)
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Termination
for Other
Than Cause. Company shall have the right to terminate
Employee’s employment at any time during the Term of this Agreement for
other than cause. In the event of Employee’s termination for
other than cause, provided that Employee executes a general liability
release in a form reasonably satisfactory to Company, Company shall
pay to
Employee severance in the amount of three (3) months’ base compensation,
subject to applicable federal, state, and local
deductions.
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(c)
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Termination
by Death
or Disability.
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(i)
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Employee’s
employment shall terminate immediately upon Employee’s
death.
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(ii)
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Company
shall have the right to terminate Employee’s employment immediately upon
written notice to Employee, if Employee, with or without a reasonable
accommodation, shall be incapable of substantially performing the
essential functions, duties, responsibilities, and obligations set
forth
in this Agreement because of physical, mental or emotional incapacity
resulting from injury, sickness, or disease, for a period of sixty
(60)
consecutive days.
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(iii)
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Employee’s
heirs, beneficiaries, successors, or assigns shall not be entitled
to any
of the compensation or benefits to which Employee is entitled under
this
Agreement, except: (a) to the extent specifically provided in this
Employment Agreement; (b) to the extent required by law; or
(c) to the extent that Company’s benefit plans or policies under
which Employee is covered provide a benefit to Employee’s heirs,
beneficiaries, successors, or
assigns.
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(d)
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Proration
of Bonus
upon Termination. Any bonus payable to Employee pursuant
to Section 5 of this Agreement shall be prorated (i) in the case of
termination pursuant to Sections 10(b) or 10(c)(ii), through the
last day
of Employee’s employment with Company, and (ii) in the case of
termination pursuant to Section 10(c)(i), through the date of
death.
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(e)
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Return
of Company
Property. In the event of any termination of this
Agreement, Employee shall immediately return to Company, without
limitation, all papers, materials, reports, memoranda, notes, plans,
records, reports, computer tapes, software, and any other documents
or
items of whatever nature owned by Company or supplied to Employee
by
Company pursuant to this Agreement.
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11.
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Confidential
Information.
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11.1.
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“Confidential
Information” is information however delivered, disclosed or discovered
during the term of this Agreement, that Employee has, or in the exercise
of ordinary prudence should have, reason to believe is confidential
or
that Company designates as confidential, including, but not limited
to:
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(a)
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Company
Information: company proprietary information, technical
data, trade secrets or know-how, including but not limited to: research,
processes, pricing strategies, communication strategies, sales strategies,
sales literature, sales contracts, product plans, products, inventions,
methods, services, computer codes or instructions, software and software
documentation, equipment, costs, customer lists, business studies,
business procedures, finances and other business information disclosed
to
Employee by Company, either directly or indirectly in writing, orally
or
by drawings or observation of parts or equipment and such other
documentation and information as is necessary in the conduct of the
business of Company; and
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(b)
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Third
Party
Information: confidential or proprietary information
received by Company from third
parties.
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11.2.
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Company’s
failure to mark any of the Confidential Information as confidential
or
proprietary will not affect its status as Confidential
Information.
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11.3.
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Employee
agrees that the terms, conditions and subject matter of this Agreement
are
considered Confidential
Information.
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11.4.
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Confidential
Information does not include information that has ceased to be
confidential by reason of any of the following: (i) was in Employee’s
possession prior to the date of this Agreement, provided that such
information is not known by Employee to be subject to another
confidentiality agreement with, or other obligation of secrecy to,
Company, or another party; (ii) is generally available to the public
and became generally available to the public other than as a result
of a
disclosure in violation of this Agreement; (iii) became available to
Employee on a non-confidential basis from a third party, provided that such
third party is not known by Employee to be bound by a confidentiality
agreement with, or other obligation of secrecy to, Company, or another
party or is otherwise prohibited from providing such information
to
Employee by a contractual, legal or fiduciary obligation; or
(iv) Employee is required to disclose pursuant to applicable law or
regulation (as to which information, Employee will provide Company
with
prior notice of such requirement and, if practicable, an opportunity
to
obtain an appropriate protective
order).
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11.5.
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Employee
shall not, either during or after the termination of Employee’s employment
with Company, communicate or disclose to any third party the substance
or
content of any Confidential Information, or use such Confidential
Information for any purpose other than the performance of Employee’s
obligations hereunder. Employee acknowledges and agrees that any
Confidential Information obtained by Employee during the performance
of
Employee’s employment concerning the business or affairs of Company, or
any subsidiary, affiliate, or joint venture of Company, is the property
of
Company, or such subsidiary, affiliate, or joint venture of Company,
as
the case may be.
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11.6.
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Employee
agrees to return all Confidential Information, including all copies
and
versions of such Confidential Information (including but not limited
to
information maintained on paper, disk, CD-ROM, network server, or
any
other retention device whatsoever) and other property of Company,
to
Company immediately upon Employee’s separation from Company (regardless of
the reason for the separation).
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11.7.
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The
terms of this Section 11 are in addition to, and not in lieu of,
any other
contractual, statutory, or common law obligations that Employee may
have
relating to the protection of Company’s Confidential Information or its
property. The terms of this Section 11 shall survive for two (2)
years
following Employee’s separation from employment with
Company.
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12.
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Noncompetition
and
Nonsolicitation.
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12.1.
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Employee
acknowledges that, by reason of Employee’s employment, Employee will have
access to and may acquire considerable knowledge of proprietary or
confidential information concerning Company’s business, operations, sales
goals, marketing plans, business strategies, clients, potential clients,
and suppliers, which information, if known by or disclosed to Company’s
competitors or clients, would place Company at a competitive disadvantage
and cause harm to Company.
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12.2.
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As
a condition of employment, Employee agrees to be bound by a separate
Noncompetition Agreement, which shall be executed contemporaneously
herewith and attached to this Agreement as Schedule
I. Additionally, for a period of six (6) months immediately
following the termination of Employee’s employment with Company
(“Restrictive Period”):
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(a)
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Employee
shall not, either directly or indirectly, solicit, divert, or take
away,
or attempt to solicit, divert, or take away, the business or patronage
of
any client, potential client, or account of Company and/or Company’s
subsidiaries and affiliates that was a client, potential client,
or
account of Company and/or Company’s subsidiaries and affiliates while
Employee was employed by Company.
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(b)
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Employee
shall not, directly or indirectly, induce or attempt to induce any
employee of Company, or any of Company’s subsidiaries and affiliates, to
leave the employ of Company, or any of Company’s subsidiaries and
affiliates.
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(c)
|
Employee
shall not, directly or indirectly, employ or attempt to employ any
person
who is an employee of Company, or any of Company’s subsidiaries and
affiliates.
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(d)
|
Employee
shall not, directly or indirectly, solicit, induce, or attempt to
induce
any customer, supplier, or third party having a business relationship
with
Company, or any of Company’s subsidiaries and affiliates, to cease doing
business with, or materially alter its relationship with, Company,
or any
of Company’s subsidiaries and
affiliates.
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12.3.
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Employee
acknowledges and agrees that every effort has been made to limit
the
Restrictive Period and the restrictions placed upon Employee to those
that
are reasonable and necessary to protect Company’s legitimate
interests.
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12.4.
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If
any restriction set forth in this Section 12 is found by any court
of
competent jurisdiction to be unenforceable, it is hereby agreed that
this
Section 12 shall be interpreted to extend only over the maximum period
of
time, range of activities or geographic area as to which it may be
enforceable.
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13.
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Equitable
Relief.
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|
13.1.
|
Employee
acknowledges and agrees that Employee’s breach of Section 11 or Section 12
of this Agreement will cause Company substantial and irrevocable
harm, and
therefore, in the event of any such breach, in addition to such other
remedies that may be available to Company, Company shall be entitled
to
equitable relief, including specific performance and injunctive
relief.
|
|
13.2.
|
In
the event that legal action is deemed necessary by Company to enforce
this
Agreement, Company shall be entitled to an award of costs and reasonable
attorneys’ fees, plus interest.
|
|
14.
|
Ownership
of
Intellectual Property. All Intellectual Property
(defined below) is, shall be and shall remain the exclusive property
of
Company and/or Company’s subsidiaries and affiliates, as the case may
be. Employee hereby assigns to Company and/or Company’s
subsidiaries and affiliates, as the case may be, all right, title
and
interest, if any, in and to the Intellectual Property; provided,
however,
that, when applicable, Company and/or Company’s subsidiaries and
affiliates, as the case may be, shall own the copyrights in all
copyrightable works included in the Intellectual Property pursuant
to the
“work-made-for-hire” doctrine (rather than by assignment), as such term is
defined in the Copyright Act of 1976. All Intellectual Property
shall be owned by Company and/or Company’s subsidiaries and affiliates, as
the case may be, irrespective of any copyright notices or confidentiality
legends to the contrary that may be placed on such works by Employee
or by
others. Employee shall ensure that all copyright notices and
confidentiality legends on all work product authored by Employee
or anyone
acting on Employee’s behalf shall conform to the practices of Company
and/or Company’s subsidiaries and affiliates, as the case may be, and
shall specify Company and/or Company’s subsidiaries and affiliates, as the
case may be, as the owner of the work. The term “Intellectual Property”
shall mean all trade secrets, ideas, inventions, designs, developments,
devices, methods and processes (whether or not patented or patentable,
reduced to practice) and all patents and patent applications related
thereto, all copyrights, copyrightable works and mask works and all
registrations and applications for registration related thereto,
all
confidential information, and all other proprietary rights contributed
to,
or conceived or created by, Employee or anyone acting on Employee’s behalf
(whether alone or jointly with others) at any time during the term
of this
Agreement that (i) relate to the business or to the actual or anticipated
research or development for Company and/or Company’s subsidiaries and
affiliates, as the case may be; (ii) result from any Services that
Employee or anyone acting on Employee’s behalf performs for Company and/or
Company’s subsidiaries and affiliates, as the case may be; or (iii) are
created using the equipment, supplies or facilities of Company and/or
Company’s subsidiaries and affiliates, as the case may
be.
|
|
15.
|
Legal
Right and
Conflict of Interest.
|
|
15.1.
|
Employee
covenants and warrants that Employee has the unlimited legal right
to
enter into this Agreement and to perform in accordance with its terms
without violating the rights of others or any applicable law, and
that
Employee has not and shall not become a party to any other agreement
of
any kind and shall not perform any work or service on behalf of any
individual, business, corporation, or organization that would create
a
conflict of interest in the performance of Employee’s obligations under
this Agreement.
|
|
15.2.
|
Employee
agrees to conduct Employee’s personal affairs in a manner that does not
conflict with Company’s interests. During the Term of this
Agreement, Employee agrees not to enter into any transaction, acquire
any
interest, or take any action that is contrary to Company’s interests or
incompatible with Employee’s duty of loyalty to Company and Employee’s
obligations under this Agreement.
|
|
15.3.
|
Employee
acknowledges and agrees that Employee will not, directly or indirectly
(whether as a director, officer, partner, employee, agent, or stockholder
of another company), compete with Company, or furnish any service
to
Company or its customers, as an independent contractor, while employed
by
Company. Employee further agrees that Employee will not use
Company’s name to further Employee’s personal
interests.
|
|
16.
|
Force
Majeure. Company shall have no liability under this
Agreement if performance by Company of its obligations hereunder
shall be
prevented, interfered with, interrupted or omitted because of any
act of
God, act of terrorism, failure of facilities, labor dispute, or government
or court action, or any other cause beyond the control of
Company.
|
|
17.
|
Notices. All
notices and other communications required or permitted to be given
by this
Agreement shall be in writing and shall be deemed received if and
when
either hand delivered and a signed receipt is given thereof, or delivered
by registered or certified United States mail, return receipt requested,
postage prepaid and addressed as follows, or at such other address
as any
party hereto shall notify the other of in
writing:
|
If
to
Company: Radio
One, Inc.
5900
Princess Garden Parkway, 7th
Floor
Lanham,
Maryland 20706
Attention: Linda
J. Vilardo
Copy
to Company
Attorney: Radio
One, Inc.
5900
Princess Garden Parkway, 7th Floor
Lanham,
Maryland 20706
Attention: General
Counsel
If
to
Employee: Peter
D. Thompson
(At
last known address on file with Company)
|
18.
|
Amendment
to Comply
with Section 409A of the Internal Revenue Code. To the extent that
this Agreement or any part thereof is deemed to be a nonqualified
deferred
compensation plan subject to Section 409A of the United States Internal
Revenue Code of 1986, as amended, and the Treasury Regulations (including
proposed regulations) and guidance promulgated thereunder (collectively,
“Code Section 409A”), (a) the provisions of this Agreement shall be
interpreted in a manner to the maximum extent possible to comply
in good
faith with Code Section 409A, and (b) the parties hereto agree to
amend
this Agreement for purposes of complying with Code Section 409A promptly
upon issuance of any Treasury regulations or guidance thereunder,
provided
that any such amendment shall not materially change the present value
of
the benefits payable to the Employee hereunder or otherwise materially
adversely affect the Employee, Company, or any affiliate of Company,
without the consent of such party.
|
|
19.
|
Miscellaneous
Provisions.
|
|
(a)
|
No
Assignment or
Delegation. Employee acknowledges that the services to
be rendered by Employee pursuant to this Agreement are unique and
personal, and agrees that Employee shall not assign any of Employee’s
rights nor delegate any of Employee’s duties under this
Agreement.
|
|
(b)
|
No
Waiver. Failure to invoke any right, condition, or
covenant in this Agreement by either party shall not be deemed to
imply or
constitute a waiver of any right, condition, or covenant of this
Agreement.
|
|
(c)
|
Severability
and
Enforceability. In the event that any provision of this
Agreement shall be held invalid by a court of competent jurisdiction,
such
provision shall be deleted from the Agreement, which shall then be
construed to give effect to the remaining provisions thereof. The
invalidity or unenforceability of any provision of this Agreement
shall
not affect the validity or enforceability of any other
provision. Similarly, if the scope of any restriction or
covenant contained herein should be or become too broad or extensive
to
permit enforcement thereof to its full extent, then the parties hereto
agree that a court of competent jurisdiction should enforce any such
restriction or covenant to the maximum extent permitted by
law.
|
|
(d)
|
Governing
Law. This Agreement and the relationship among the
parties shall be construed under and governed by the laws of the
State of
Delaware, without regard to the conflict of laws rules thereof, and
the
parties hereby submit to the jurisdiction of the state and federal
courts
of the State of Delaware for the purpose of resolving any disputes
arising
under or relating to this
Agreement.
|
|
(e)
|
Headings. The
headings in this Agreement are solely for convenience of reference
and
shall be given no effect in the construction or interpretation of
this
Agreement.
|
|
(f)
|
Counterparts. This
Agreement may be executed in one or more counterparts, each of which
shall
be deemed an original, but all of which together shall constitute
one
instrument.
|
|
(g)
|
Entire
Agreement. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter
hereof and supersedes any and all previous written or oral agreements,
representations, warranties, statements, correspondence, and
understandings between the parties. This Agreement cannot be amended
or
modified except by a written agreement signed by all parties
hereto.
|
IN
WITNESS WHEREOF, the parties have executed this Agreement to be effective as
of
the day and year first above written.
RADIO
ONE,
INC. PETER
D. THOMPSON
By: /s/
Linda J.
Vilardo Signature:
/s/ Peter D. Thompson
Linda J. Vilardo
Peter
D.
Thompson
Title:
Vice
President Address:
2701 Calvert Street
Apartment 825
Washington, D.C. 20008
SCHEDULE
I
NON-COMPETITION
AGREEMENT
THIS
NON-COMPETITION AGREEMENT (“Agreement”) is made and entered into as of
the 31st day of March, 2008 (“Effective Date”), by and between Radio
One, Inc. (“Company”) and Peter D. Thompson (“Employee”).
RECITALS
WHEREAS,
Company is engaged in the business of owning and managing broadcast media,
directly and through subsidiaries and affiliates, including fifty-four (54)
radio stations in seventeen (17) markets in the United States; and
WHEREAS,
Company wishes to employ Employee, and Employee wishes to be employed by
Company, to serve as Chief Financial Officer, commencing on or about
February 20, 2008; and
WHEREAS,
Employee acknowledges that Company has the right to protect its interests in
its
relationships with its listeners, advertisers, and sponsors; its goodwill;
and
its economic advantage; and
WHEREAS,
Employee further acknowledges that, by reason of Employee’s employment, Employee
will have access to and may acquire considerable knowledge of proprietary or
confidential information concerning Company’s business, operations, sales goals,
marketing plans, business strategies, clients, potential clients, and suppliers,
which information, if known by or disclosed to Company’s competitors or clients,
would place Company at a competitive disadvantage and cause harm to Company;
and
WHEREAS,
Employee wishes to accept employment with Company, and agrees to do so subject
to the terms and conditions herein;
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants
hereinafter set forth, and for good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, Company and Employee, intending
to
be legally bound, hereby agree as follows:
|
1.
|
COVENANT
NOT TO COMPETE
|
|
1.1.
|
Employee
agrees that, for a period of six (6) months immediately following
the
termination of Employee’s employment with Company for any reason
(“Restricted Period”), Employee shall not, either directly or indirectly,
own, control, manage, operate, participate in, be employed by, or
act for
or on behalf of, any “Competitive Business” in the United States.
“Competitive Business” is defined to include any enterprise or individual
engaged in owning and/or managing broadcast media that principally
targets
African-American audiences.
|
|
1.2.
|
The
foregoing shall not prohibit Employee from being a passive owner
of not
more than 5% of the outstanding stock of a corporation that is publicly
traded, so long as Employee has no active participation in the business
of
such corporation.
|
|
1.3.
|
Employee
acknowledges and agrees (i) that the restrictions placed upon Employee
have been limited to those that are reasonable and necessary to protect
Company’s legitimate interests and (ii) that the restrictions set forth
herein will not prevent Employee from earning a
living.
|
|
2.
|
TERMINATION
OBLIGATIONS
|
|
2.1.
|
Employee’s
representations, warranties, and obligations contained in this Agreement
shall survive the termination of Employee’s
employment.
|
|
2.2.
|
Following
any termination of employment, Employee will fully cooperate with
Company
in all matters relating to Employee’s continuing obligations under this
Agreement.
|
|
2.3.
|
In
the event that Employee leaves the employ of Company, Employee hereby
grants consent to notification by Company to Employee’s new employer about
Employee’s rights and obligations under this
Agreement.
|
|
2.4.
|
Upon
termination of the employment, Employee hereby agrees to execute
a
certificate acknowledging compliance with this Agreement in the form
provided by Company.
|
|
3.
|
EMPLOYEE
ACKNOWLEDGEMENT
|
|
3.1.
|
Employee
acknowledges that Employee has had the opportunity to consult legal
counsel in regard to this Agreement, that Employee has read and
understands this Agreement, that Employee is fully aware of its legal
effect, and that Employee has entered into it freely and voluntarily
and
based on Employee’s own judgment and not on any representations or
promises other than those contained in the
Agreement.
|
|
4.
|
NO
ASSIGNMENT OR DELEGATION
|
|
4.1.
|
Employee
acknowledges that the services to be rendered by Employee pursuant
to this
Agreement are unique and personal, and agrees that Employee shall
not
assign any of Employee’s rights nor delegate any of Employee’s duties
under this Agreement.
|
|
5.
|
NO
WAIVER
|
|
5.1.
|
Failure
to invoke any right, condition, or covenant in this Agreement by
either
party shall not be deemed to imply or constitute a waiver of any
right,
condition, or covenant of this
Agreement.
|
|
6.
|
SEVERABILITY
AND ENFORCEABILITY
|
|
6.1.
|
If
any part, term or provision of this Agreement is held to be illegal,
invalid, void, or unenforceable, or to be in conflict with any law,
the
validity of the remaining provisions or portions of this Agreement
shall
not be affected, and the rights of the parties shall be construed
and
enforced as if this Agreement did not contain the particular part,
term,
or provision held invalid.
|
|
6.2.
|
If
the scope of any restriction or covenant contained herein should
be or
become too broad or extensive to permit enforcement thereof to its
full
extent, then the parties hereto agree that a court of competent
jurisdiction should enforce any such restriction or covenant to the
maximum extent permitted by law.
|
|
6.3.
|
The
invalidity or unenforceability of any provision of this Agreement
shall
not affect the validity or enforceability of any other agreement
entered
into by the parties, including any non-solicitation
agreement.
|
|
7.
|
GOVERNING
LAW
|
|
7.1.
|
This
Agreement and the relationship among the parties shall be construed
under
and governed by the laws of the State of Delaware without regard
to the
conflict of laws rules thereof.
|
|
8.
|
FORUM
SELECTION
|
|
8.1.
|
The
parties hereto agree that all actions or proceedings arising in connection
with this Agreement shall be conducted exclusively in the State of
Delaware.
|
|
8.2.
|
The
aforementioned choice of forum is intended by the parties to be mandatory
and not permissive in nature, thereby precluding the possibility
of
litigation between the parties with respect to or arising out of
this
Agreement in any jurisdiction other than the State of
Delaware.
|
|
8.3.
|
Each
party hereby waives any right it may have to assert the doctrine
of forum non conveniens or
similar doctrine or to object to venue with respect to any proceeding
brought in accordance with this paragraph, and stipulates that the
state
and federal courts located in the State of Delaware shall have personal
jurisdiction and venue over each of them for the purpose of litigating
any
dispute, controversy, or proceeding arising out of or related to
this
Agreement.
|
|
8.4.
|
Each
party hereby authorizes and accepts service of process sufficient
for
personal jurisdiction in any action against it as contemplated by
this
paragraph by registered or certified mail, return receipt requested,
postage prepaid, to its address for the giving of notices as set
forth in
this Agreement.
|
|
8.5.
|
Any
final judgment rendered against a party in any action or proceeding
shall
be conclusive as to the subject of such final judgment and may be
enforced
in other jurisdictions in any manner provided by
law.
|
|
9.
|
EQUITABLE
RELIEF
|
|
9.1.
|
Employee
acknowledges and agrees that Employee’s
breach of this Agreement will cause Company substantial and irreparable
harm, and therefore, in the event of any such breach, in addition
to such
other remedies that may be available to Company, Company shall be
entitled
to equitable relief, including specific performance and injunctive
relief.
|
|
10.
|
ATTORNEYS’
FEES
|
|
10.1.
|
In
the event that a claim is brought pursuant to any law or statute
that
provides for the allocation of attorneys’ fees or costs, the court shall
have the power to allocate attorneys’ fees and costs pursuant to the
applicable law or statutes.
|
|
11.
|
TOLLING
PROVISION
|
|
11.1.
|
In
the event that either party initiates litigation in an attempt to
confirm
or enforce its rights under this Agreement, the parties agree that
the
Restricted Period during which Employee is prohibited from competing
with
the Company will be tolled during the period of time in which such
litigation is pending.
|
|
12.
|
HEADINGS
|
|
12.1.
|
The
headings in this Agreement are solely for convenience of reference
and
shall be given no effect in the construction or interpretation of
this
Agreement.
|
|
13.
|
COUNTERPARTS
|
|
13.1.
|
This
Agreement may be executed in one or more counterparts, each of which
shall
be deemed an original, but all of which together shall constitute
one
instrument.
|
|
14.
|
ENTIRE
AGREEMENT
|
|
14.1.
|
This
Agreement constitutes the entire agreement and understanding between
the
parties regarding Employee’s agreement not to compete with Company in
accordance with the terms described in the Agreement. This
Agreement supersedes any and all previous written or oral agreements,
representations, warranties, statements, correspondence, and
understandings between the parties concerning this subject matter.
This
Agreement cannot be amended or modified by the parties to the Agreement
except by a written agreement signed by all parties
hereto.
|
________________________ Date:
March 31,
2008
Employee
________________________ Date: March
31,
2008
Company
Representative