AGREEMENT
Exhibit 10.1
AGREEMENT
THIS AGREEMENT is made and entered into as of March 17, 2009 (“Agreement”) by and among Regent
Communications, Inc.(“Regent”), Xxxxx Investment Management LLC (“RIM”), and Xxxxx Investment
Partners Master Fund, L.P.(“RIP”).
For purposes of this Agreement, the term “Company” shall mean Regent and all of its
affiliates, the term “Xxxxx” shall mean RIM, RIP and all of their respective affiliates, and the
term “affiliates” shall mean any officer, director, employees, investment advisory clients,
attorney, agent, assignee, predecessor, successor, parent, subsidiary, affiliate, division, or
related company.
WHEREAS, Xxxx X. Xxx, a member of Regent’s Board of Directors and member of the Board’s
Nominating and Corporate Governance Committee, has informed Regent that because of its
dissatisfaction with Board leadership, Xxxxx would commence a proxy fight unless Regent’s Board
would remove Xxxxxxx X. Xxxxxx, Xx. as Chairman of the Board and not nominate Xx. Xxxxxx for
re-election to the Board of Directors at the 2009 Annual Meeting of Stockholders currently
scheduled for June 3, 2009. Xx. Xxx currently serves on Regent’s Board of Directors as one of
Xxxxx’x designees pursuant to the terms of the September 14, 2007 Settlement Agreement among
Regent, Xxxxx, Xx. Xxx and certain other parties; and
WHEREAS, the parties to this Agreement mutually agree that it is in their respective best
interests and in the best interests of Regent and Regent’s stockholders to avoid the time, costs,
and disruptions that a potential proxy contest may cause the parties in connection with the 2009
Annual Meeting, to revise the composition of Regent’s Board of Directors, and to agree on certain
related matters, all as set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and
agreements set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I. COMPOSITION OF BOARD AND BOARD COMMITTEES
1.1 Board Size. In accordance with Regent’s bylaws and as recommended by the Board’s
Nominating and Corporate Governance Committee, Regent’s Board of Directors will vote to set the
number of Directors to serve on the Board at six commencing at the earlier of the resignation of
Xxxxxxx X. Xxxxxx, Xx. from the Board or in connection with the election of Directors at the 2009
Annual Meeting of the Company’s Stockholders currently scheduled for June 3, 2009 and continuing
thereafter until such time as the Board may take further action to either increase or decrease the
size of the Board.
1.2 Director Nominees. In connection with the Company’s 2009 Annual Meeting of
Stockholders and as recommended by the Board’s Nominating and Corporate Governance Committee,
Regent’s Board will nominate all of the Company’s incumbent directors as of the date of this
Agreement, other than Xxxxxxx X. Xxxxxx, Xx. for re-election to the Board.
1.3 Board Chairman. As recommended by the Board’s Nominating and Corporate Governance
Committee, Regent’s Board will appoint Xxxx X. Xxxxx as the Chairman of the Board effective
immediately upon the taking of such Board action.
1.4 Effect of Failure to Satisfy Sections 1.2 and 1.3. If the actions contemplated by
Sections 1.2 and 1.3 above are not taken on or before 5:30 p.m., Cincinnati time, on March 17,
2009, then this Agreement shall be null and void.
ARTICLE II. MEETINGS OF REGENT’S STOCKHOLDERS
2.1 No Change in Bylaws as to Special Meetings. Unless approved by a majority of the
Board, including the approval of at least one of Messrs. Ahn and XxXxxxxxx, the Board shall not
amend Regent’s bylaws with respect to calling a special meeting of stockholders. This restriction
from amending Regent’s bylaws relating to calling a special meeting will continue for two months
after no designees of Xxxxx serve on Regent’s Board; provided, that, any amendment to Regent’s
bylaws shall not apply retroactively to a special meeting that is validly called prior to the end
of such two month period.
2.2 Limitations as to 2009 Annual Meeting and Future Special Meetings of Stockholders.
Without the consent of a majority of the then current members of Regent’s Board (it being
understood and agreed that a 3-3 vote does not constitute a majority), Xxxxx agrees that it will
not call for any special meeting of Regent’s stockholders and will not nominate any person for
election to Regent’s Board at Regent’s 2009 Annual Meeting of Stockholders or at any special
meeting of Regent’s stockholders other than as contemplated by Section 1.2 above, or to form or
join a group or act in concert with any person or entity to change the composition of the Board,
through December 31, 2009; provided, that, for the avoidance of doubt, the foregoing shall not
restrict any vote or actions by Xx. Xxx or by Xxxx X. XxXxxxxxx (Xxxxx’x other designee currently
serving as a Regent director) in their capacity as directors of Regent (including on the Nominating
and Corporate Governance Committee) and Xxxxx and Messrs. Ahn and XxXxxxxxx shall not be restricted
from voting any shares of, or giving a proxy or executing a written consent with respect to, their
Regent stock in response to a request from a third party that is not part of a group, as defined in
Rule 13d-1, of which Xxxxx, Xx. Xxx or Xx. XxXxxxxxx is also a member, and such actions shall not
in and of itself be deemed to be acting in concert with the person or persons requesting the vote,
proxy or written consent. Notwithstanding the foregoing, the restrictions set forth in this Section
2.2 shall terminate at any time that the Company breaches any of its covenants set forth in Article
I or Section 2.1 hereof, nor shall the restrictions set forth in this Section 2.2 apply to any
attorney or agent of Xxxxx who is not subject to the direct or indirect control of Xxxxx.
ARTICLE III. ADDITIONAL AGREEMENTS
3.1 Public Disclosures. Promptly following the execution of this Agreement, Regent
will prepare and issue a press release announcing the entry into this Agreement, which press
release shall be mutually agreeable to all parties hereto (the “Press Release”). Regent also will
promptly file a Form 8-K with the Securities and Exchange Commission to which this
Agreement and
the Press Release will be attached as exhibits. This Agreement and the Press Release may be filed
as an exhibit to any amendment required to be filed under Section 13(d) of the Securities Exchange
Act of 1934, as amended, to any Schedule 13Ds filed by Xxxxx. None of the parties hereto will make
any public statements regarding this Agreement and related matters that are inconsistent with or
contrary to the statements in the Press Release. Any statement otherwise prohibited by this
Section 3.1 may nevertheless be made without violating this Agreement if such statement is either
required by applicable law, rule or regulation or is required to be made by the person seeking to
make such statement in order to comply with such party’s fiduciary duties to Regent or its
stockholders, in each case as reasonably determined by such person based on the advice of outside
counsel and upon reasonable prior notice to the parties hereto of the nature of the statement and
the basis pursuant to which it is required to be made.
3.2 Expiration of Covenants and Restrictions. Except as otherwise specifically
provided in this Agreement, unless this Agreement becomes null and void pursuant to Section 1.4,
all covenants and restrictions set forth herein shall lapse and be of no further effect as of 11:59
p.m. on December 31, 2009, Cincinnati time.
3.3 References to Xxxxx Designees. All references in this Agreement to either Xx. Xxx
or Xx. XxXxxxxxx, also shall mean any other person designated by Xxxxx and approved by Regent’s
Board to serve as a Director of Regent.
ARTICLE IV. MISCELLANEOUS
4.1 Binding Agreement. Each term of this Agreement is binding upon the parties hereto
and their respective predecessors, successors, transferees, permitted assignees, insurers, and
reinsurers. If any provision of this Agreement shall be deemed or declared to be unenforceable,
invalid or void, such provision shall not impair any other provision of this Agreement. It is
hereby expressly understood and agreed that the terms of this Agreement are contractual and not
merely recitals.
4.2 Complete Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto in respect of all matters contained in this Agreement, and
supersedes all prior and/or contemporaneous oral or written agreements, representations or
understandings of any nature. There are no unwritten agreements or understandings between the
parties.
4.3 Authority. Each of the parties hereto acknowledges and represents that it has the
full power, authority and capacity to enter into this Agreement and that the person(s) signing this
Agreement on its behalf has the full power, capacity and authority to do so. Each party hereby
represents that it has read the foregoing Agreement, presented it to competent legal counsel for
review, fully understands it, and has executed it voluntarily with full knowledge of its legally
binding effect.
4.4 Governing Law; Jurisdiction. This Agreement shall be interpreted under and in
accordance with the laws of the State of Delaware without regard to its conflicts of law
provisions. Each of the parties hereto agrees that any action or proceeding relating to or arising
out of this Agreement shall be adjudicated exclusively in the courts located in Delaware.
4.5 Injunctive Relief. The parties agree that in the event of any actual or
threatened breach by any other party of any of the provisions contained in this Agreement, the
non-breaching parties shall be entitled to seek immediate temporary injunctive and other equitable
relief, without the necessity of showing actual monetary damages, subject to hearing as soon
thereafter as possible. Nothing contained herein shall be construed as prohibiting any party from
pursuing any other remedies available to it for such breach or threatened breach, including the
recovery of any damages which it is able to prove.
4.6 Amendment. This Agreement may be amended or modified only by a written instrument
duly executed by all of the parties hereto.
4.7 Successors and Assigns. This Agreement shall not be assigned or transferred to
any third party without the prior express written consent of all of the parties. Any permitted
assignment or transfer of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns and legal representatives.
4.8 Section Headings. Section headings are inserted herein for convenience only and
shall not affect any construction or interpretation of this Agreement.
4.9 Counterparts. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties, each individually or through their duly authorized
representative, have executed this Agreement as of the date first set forth above.
| REGENT COMMUNICATIONS, INC. |
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| By: | /s/ XXXXXXX X. XXXXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| XXXXX INVESTMENT PARTNERS MASTER FUND, L.P. By: Xxxxx Investment Management LLC, the General Partner |
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| By: | /s/ XXXX X. XXX | |||
| Name: | Xxxx X. Xxx | |||
| Title: | Principal | |||
| XXXXX INVESTMENT MANAGEMENT LLC |
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| By: | /s/ XXXX X. XXX | |||
| Name: | Xxxx X. Xxx | |||
| Title: | Principal | |||
