FIRST AMENDMENT TO THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT BETWEEN RADIO ONE, INC. AND LINDA J. VILARDO
FIRST
AMENDMENT TO THE
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
BETWEEN
RADIO ONE, INC. AND
XXXXX
X. XXXXXXX
This
First Amendment (the “Amendment”)
is made to the Amended and Restated Employment Agreement Between Radio One,
Inc.
(the “Company”) and Xxxxx X. Xxxxxxx (the “Executive”), dated October 31, 2000
(the “Agreement”), effective as of the latest date set forth below.
WHEREAS,
the Executive has
been employed by the Company as its General Counsel and Vice President and
currently serves as the Company’s Chief Administrative Officer and Vice
President; and
WHEREAS,
Section 409A of the
Internal Revenue Code of 1986 (the “Code”) which was enacted effective January
1, 2005, imposes new requirements regarding the federal income tax treatment
of
nonqualified deferred compensation; and
WHEREAS,
final regulations
under Code Section 409A were published by the Internal Revenue Service (“IRS”)
in April 2007 and transition period guidance issued by the IRS allows this
Amendment to be adopted no later than December 31, 2008 in order to bring the
Agreement into compliance with new Code Section 409A;
WHEREAS,
Section 14.2 of the
Agreement provides that the Agreement may be amended by a written agreement
executed by the Company and the Executive;
NOW
THEREFORE, in
consideration of the premises and mutual covenants herein contained, the Company
and the Executive hereby agree to amend the Agreement as provided
below:
1.
The definition of “Disability” set forth in Section 1 of the Agreement is hereby
amended to read as follows:
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“Disability”
shall mean the Executive:
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(a)
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is
unable to engage in any substantial gainful activity by reason of
any
medically determinable physical or mental impairment which can be
expected
to result in death, or last for a continuous period of not less than
12
months;
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(b)
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by
reason of any medically determinable physical or mental impairment
which
can be expected to result in death, or last for a continuous period
of not
less than 12 months, is receiving income replacement benefits for
a period
of not less than three months under an accident and health plan covering
employees of the Company; or
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(c)
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is
determined to be totally disabled by the Social Security Administration.
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2.
The definition of “Good Reason” set forth in Section 1 of the Agreement is
hereby amended to read as follows:
“Good Reason” shall be deemed to exist if, without the express written consent
of the Executive, there is:
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(a)
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a
material diminution in the Executive’s rate of Annual Base Salary (as
provided in Section 5.1 of this Agreement, including any increases);
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(b)
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a
material diminution in the Executive’s authority, duties or
responsibilities;
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(c)
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a
material diminution in the authority, duties or responsibilities
of the
supervisor to whom the Executive is required to report, including
a
requirement that the Executive report to a corporate officer or employee
instead of reporting directly to the Board of Directors;
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(d)
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a
material diminution in the budget over which the Executive retains
authority;
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(e)
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a
material change in the geographic location at which the Executive
must
perform services;
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(f)
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any
other action or inaction that constitutes a material breach by the
Company
of this Agreement, including, but not limited to:
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(i)
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the
Company’s failure to pay the Executive’s Annual Base Salary when due or to
pay any other material amount due to the Executive hereunder within
five
(5) days of written notice from the Executive, provided, however,
that the
Company shall have thirty (30) days after receiving the Executive’s notice
to remedy the breach; and
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(ii)
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the
Company’s failure to obtain a satisfactory written agreement from any
successor to assume and agree to perform this Agreement, which successor
the Executive reasonably concludes is capable of performing the Company’s
financial obligations under this Agreement.
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3. Section
5.2(b) is hereby amended to read as follows:
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(b)
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If
the Executive has remained in the full-time and continuous employ
(subject
to vacation and sick time in accordance with this Agreement and the
policies of the Company then in effect) of the Company from the
Commencement Date through and including the end of the Extended Term,
then
the Company shall pay the Executive a bonus (the “Extended Term Retention
Bonus”) in an amount equal to Two Million Five Thousand Dollars
($2,005,000). The Extended Term Retention Bonus awarded to the
Employee hereunder, if any, shall be due and payable on the earlier
of (i)
November 1, 2008, and (ii) the termination of the Executive’s employment
pursuant to Section 6 hereto, provided however, that the payment
shall be
delayed until the first day of the seventh month following such
termination of employment, but only to the extent that such delay
is
necessary in order to avoid penalties under Code Section 409A with
respect
to payments to a Specified Employee, as defined in Treasury Regulations
Section 1.409A-1(i) upon Separation from Service, as defined in Treasury
Regulations Section 1.409A-1(h).
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4. Section
6.1(a)(iv) is hereby amended as follows:
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(iv)
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to
the extent applicable, and as so permitted by applicable law, the
continuation of the Executive’s welfare benefits (as described in Section
5.4 of this Agreement) at the level in effect on the Date of Termination
during the Section 6.1 Severance Period or beyond as the law requires,
and
any other compensation and benefits as may be provided in accordance
with
the terms and provisions of applicable plans and programs, if any,
generally applicable to executives of the Company or specifically
applicable to the Executive, provided, that, if the Company is not
able to
provide continuing coverage under any such welfare benefit plan or
program
following the Executive’s termination, the Company shall provide
substantially similar (A) non-taxable medical benefits insurance
coverage;
(B) disability insurance coverage; and (C) death benefit only life
insurance coverage outside of the Company’s policy or program during such
Section 6.1 Severance Period, and, provided further, that the Company
shall pay all premiums for COBRA group health care continuation coverage
for the Executive and her dependents during such Section 6.1 Severance
Period.
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5.
Section 6.1(b) is hereby amended as follows:
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(b)
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(i)
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Subject
to Section 6.1(b)(ii) below, all amounts owed under Section 6.1(a)
shall
be paid at the time described in this Section 6.1(b)(i). The amounts
owed
under Section 6.1(a)(i) shall be payable in equal bi-weekly installments
from the Date of Termination through the expiration of the Section
6.1
Severance Period. The amounts owed under Section 6.1(a)(ii) shall
be paid
within fifteen (15) days after the Date of Termination. The amounts
owed
under Section 6.1(a)(iii), unless otherwise expressly specified herein,
shall be paid in accordance with the policies and procedures of the
Company in effect at the time the applicable expenses were incurred.
The
amounts owed under Section 6.1(a)(iv) shall be payable in accordance
with
the terms of the applicable plans and programs, except any coverage
provided under plans outside of the Company’s regular employee benefit
plan programs must provide for no gap in coverage for the Executive
between the Company’s regular coverage and the separate coverage required
by Section 6.1(a)(iv). The amounts owed under Section 6.1(a)(v)
shall be paid within sixty (60) days after the Date of Termination.
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(ii)
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Notwithstanding
Section 6.1(b)(i), to the extent any amount required to be paid under
Section 6.1(a) is treated as deferred compensation under Code Section
409A, payment of such amount shall be delayed until the first day
of the
seventh month following the Date of Termination, but only to the
extent
that such delay is necessary in order to avoid penalties under Code
Section 409A with respect to payments to a Specified Employee, as
defined
in Treasury Regulations Section 1.409A-1(i) upon Separation from
Service,
as defined in Treasury Regulations Section 1.409A-1(h).
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6.
Section 6.1(c) is hereby amended as follows:
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(c)
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At
any time during the six (6) month period immediately following a
Change in
Control, the Executive may, in her sole discretion and upon thirty
(30)
days’ prior written notice to the Board, terminate her employment under
this Agreement and receive the benefits provided under Section 6.1(a)
hereof at the time described in Section 6.1(b) hereof; provided,
however,
that payment of any benefits that are treated as deferred compensation
under Code Section 409A shall be delayed until the first day of the
seventh month following the Date of Termination, but only to the
extent
that such delay is necessary in order to avoid penalties under Code
Section 409A with respect to payments to a Specified Employee, as
defined
in Treasury Regulations Section 1.409A-1(i) upon Separation from
Service,
as defined in Treasury Regulations Section 1.409A-1(h).
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7. Section
6.2(a)(iv) is hereby amended as follows:
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(iv)
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to
the extent applicable, and as so permitted by applicable law, the
continuation of the Executive’s welfare benefits (as described in Section
5.4 of this Agreement) at the level in effect on the Date of Termination
during the Section 6.2 Severance Period or beyond as the law requires,
and
any other compensation and benefits as may be provided in accordance
with
the terms and provisions of applicable plans and programs, if any,
generally applicable to executives of the Company or specifically
applicable to the Executive, provided, that, if the Company is not
able to
provide continuing coverage under any such welfare benefit plan or
program
following the Executive’s termination, the Company shall provide
substantially similar (A) non-taxable medical benefits insurance
coverage;
(B) disability insurance coverage; and (C) death benefit only life
insurance coverage outside of the Company’s policy or program during such
Section 6.2 Severance Period, and, provided further, that the Company
shall pay all premiums for COBRA group health care continuation coverage
for the Executive and her dependents during such Section 6.2 Severance
Period.
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8.
Section 6.2(b) is hereby amended as follows:
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(b)
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(i)
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Subject
to Section 6.2(b)(ii) below, all amounts owed under Section 6.2(a)
shall
be paid at the time described in this Section 6.2(b)(i). The amounts
owed
under Section 6.2(a)(i) shall be payable in equal bi-weekly installments
from the Date of Termination through the expiration of the Section
6.2
Severance Period. The amounts owed under Section 6.2(a)(ii) shall
be paid
within fifteen (15) days after the Date of Termination. The amounts
owed
under Section 6.2(a)(iii), unless otherwise expressly specified herein,
shall be paid in accordance with the policies and procedures of the
Company in effect at the time the applicable expenses were incurred.
The
amounts owed under Section 6.2(a)(iv) shall be payable in accordance
with
the terms of the applicable plans and programs, except any coverage
provided under plans outside of the Company’s regular employee benefit
plan programs must provide for no gap in coverage for the Executive
between the Company’s regular coverage and the separate coverage required
by Section 6.2(a)(iv). The amounts owed under Section 6.2(a)(v)
shall be paid within sixty (60) days after the Date of Termination.
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(ii)
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Notwithstanding
Section 6.2(b)(i), to the extent any amount required to be paid under
Section 6.2(a) is treated as deferred compensation under Code Section
409A, payment of such amount shall be delayed until the first day
of the
seventh month following the Date of Termination, but only to the
extent
that such delay is necessary in order to avoid penalties under Code
Section 409A with respect to payments to a Specified Employee, as
defined
in Treasury Regulations Section 1.409A-1(i) upon Separation from
Service,
as defined in Treasury Regulations Section 1.409A-1(h).
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9.
Section 6.2(c) is hereby amended to read as follows:
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(c)
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Within
ninety (90) days after the initial occurrence of an event that is
deemed
to constitute Good Reason for the Executive to terminate her employment
under this Agreement, the Executive must provide written notice to
the
Board informing them of the existence of such condition. The effective
date of such termination must be not earlier than thirty (30) days
after
the date the notice is delivered to the Board and not later than
two years
following the initial existence of the condition. The Board shall
be
provided the opportunity, within thirty (30) days of its receipt
of the
notice to remedy such condition, including, but not limited to, meeting
with the Executive to discuss the situation. If the Executive does
not
rescind her termination of employment within the 30 day cure period,
the
Executive’s employment with the Company shall be terminated for Good
Reason, subject to the Company’s right to seek arbitration of the
existence of Good Reason as provided in Section 11 of this Agreement,
and
the Executive shall receive the benefits provided under Section 6.2(a)
hereof. The Company agrees that the Executive’s continuation of
her employment during the initial six-month period following the
occurrence of a Good Reason shall not constitute a waiver of her
rights to
resign for Good Reason, which shall be preserved during such period.
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10.
Section 6.3(b) is hereby amended as follows:
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(b)
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(i)
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Subject
to Section 6.3(b)(ii) below, all amounts owed under Section 6.3(a)
shall
be paid at the time described in this Section 6.3(b)(i). The amounts
owed
under Section 6.3(a)(i) shall be paid within fifteen (15) days after
the
Date of Termination. The amounts owed under Section 6.3(a)(ii), unless
otherwise expressly specified herein, shall be paid in accordance
with the
policies and procedures of the Company in effect at the time the
applicable expenses were incurred. The amounts owed under Section
6.3(a)(iii) shall be payable in accordance with the terms of the
applicable plans and programs. The amounts owed under Section 6.3(a)(iv)
shall be paid within sixty (60) days after the Date of Termination.
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(ii)
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Notwithstanding
Section 6.3(b)(i), to the extent any amount required to be paid under
Section 6.3(a) is treated as deferred compensation under Code Section
409A, payment of such amount shall be delayed until the first day
of the
seventh month following the Date of Termination, but only to the
extent
that such delay is necessary in order to avoid penalties under Code
Section 409A with respect to payments to a Specified Employee, as
defined
in Treasury Regulations Section 1.409A-1(i) upon Separation from
Service,
as defined in Treasury Regulations Section 1.409A-1(h).
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IN
WITNESS WHEREOF, the
Executive and the Company have caused this Amendment to be executed as of the
latest date set forth below.
RADIO ONE, INC.
_________________________
By:_/s/
Xxxxxx X. Xxxxxxx III
__________
Date
Xxxxxx X. Xxxxxxx, III
Chief Executive Officer & President
EXECUTIVE
_________________________
___ /s/ Xxxxx X.
Vilardo_____________
Date
Xxxxx X. Xxxxxxx
