EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.2
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”), effective as of December 28, 2007 by
and between REGENT COMMUNICATIONS, INC., a Delaware corporation (the “Company”), and XXXXXXX X.
XXXXXXXXXXXX (“Employee”).
RECITALS
WHEREAS, the Company is engaged in the business, either directly or through affiliates, of
owning and operating radio broadcasting stations (the “Business”), with principal offices in
Covington, Kentucky. For purposes of this Agreement, the term “Company” shall include the Company,
its subsidiaries, affiliates, and assignees and any successors in interest of the Company and its
subsidiaries and/or affiliates.
WHEREAS, Employee has been actively engaged in the radio broadcasting business and has
extensive knowledge and a unique understanding of the operation of the Business.
WHEREAS, the Company desires to employ Employee, and Employee desires to be employed by the
Company, as Executive Vice President and Chief Financial Officer of the Company.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Employment.
1.1 Engagement of Employee. The Company agrees to employ Employee and Employee agrees to
accept employment as the Executive Vice President and Chief Financial Officer of the Company, all
in accordance with the terms and conditions of this Agreement. Any prior agreements or
understandings with respect to Employee’s employment with the Company are canceled as of the date
hereof, other than any incentive awards granted to Employee prior to the date hereof, benefit plans
in which Employee is eligible for participation and any Company policies to which Employee is
subject.
1.2 Duties and Powers.
(a) During the Employment Period, Employee will serve as the Company’s Executive Vice
President and Chief Financial Officer, and will have such responsibilities, duties and authority
as customarily held by executives in such a position in comparable companies, and will render
services of an executive and administrative character, and act in such other executive capacity
for the Company, as the Company’s board of directors (the “Board”) shall from time to time direct.
Employee shall devote his reasonable best efforts, energies and abilities to the business and
affairs of the Company. Employee shall perform the duties and carry out the responsibilities
assigned to him, to the best of his ability, in a diligent, trustworthy
and businesslike manner for the purpose of advancing the business of the Company and in a
manner he reasonably believes to be in and not opposed to the best interests of the Company.
(b) Employee acknowledges that his duties and responsibilities will require his concentrated
business efforts and agrees that during the Employment Period he will not engage directly or
indirectly in any other business activity or have any business pursuits or interests which
materially interfere or conflict with the performance of Employee’s duties hereunder or which
compete directly with the Company; provided, however, nothing in this Section 1.2 shall be deemed
to prohibit Employee from investing in the stock of any competing corporation listed on a national
securities exchange or traded in the over-the-counter market, but only if his associates (as such
term is defined in Regulation 14A promulgated under the Securities Exchange Act of 1934, as in
effect on the date hereof), collectively, do not own more than an aggregate of three percent of
the stock of such corporation. In addition, Employee may serve on boards of directors during the
Employment Period and volunteer his service to charitable, business and other public service
agencies, clubs or organizations so long as such board or other service does not materially
interfere or conflict with the performance of Employee’s duties hereunder and so long as such
activities are not rendered for a competitor of the Company. Any and all fees or remuneration paid
to Employee in consideration of work and services performed outside the scope of Employee’s
employment hereunder shall inure to the benefit of Employee.
(c) The parties hereto agree that none of Employee’s duties hereunder shall require him to,
and Employee agrees that he will not without the consent of the Board, which consent shall not be
unreasonably withheld, change his personal residence from the Greater Cincinnati, Ohio SMSA Area.
1.3 Employment Period. Employee’s employment under this Agreement shall begin effective on
the date hereof and shall continue through and until December 31, 2009 (the “Employment Period”).
Notwithstanding anything to the contrary contained herein, the Employment Period is subject to
termination pursuant to Section 1.4 and Section 1.5 below.
1.4 Termination by the Company. The Company has the right to terminate Employee’s employment
under this Agreement, by notice to Employee in writing at any time, (i) for “Cause,” (ii) without
Cause for any or no reason, and (iii) due to the Disability of Employee. Any such termination shall
be effective upon the date of service of such notice pursuant to Section 14. This Agreement shall
terminate automatically upon Employee’s death.
“Cause” as used herein means the occurrence of any of the following events:
(a) the determination by the Board in the exercise of its reasonable judgment that Employee
has committed an act or acts constituting theft, dishonesty or fraud with respect to the Company;
(b) conviction of Employee for the commission of a felony;
(c) the determination by the Board in the exercise of its reasonable judgment that Employee
has committed an act that provides clear and convincing evidence of alcohol or drug abuse by
Employee that adversely affects his performance hereunder;
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(d) a material breach by Employee of any of the terms and conditions of Sections 3 or 4 of
this Agreement; or
(e) Employee’s gross negligence, habitual neglect, or intentional misconduct in the
performance of his duties hereunder resulting in material harm to the Company, which gross
negligence, habitual neglect or intentional misconduct continues for not less than 15 days
following Employee’s receipt of written notice from the Board of such failure.
Employee shall be deemed to have a “Disability” for purposes of this Agreement if Employee
shall be unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months. In the event Employee shall
be under a Disability, the Company shall have the right to terminate Employee’s employment
hereunder during the continuance of such Disability upon at least thirty (30) days prior written
notice to Employee. Such determination shall not be arbitrary or unreasonable, and the Board shall
take into consideration the opinion of Employee’s personal physician, if reasonably available, as
well as applicable provisions of the Americans with Disabilities Act, but such determination by the
Board, if not arbitrary or unreasonable, shall be final and binding on the parties hereto.
1.5 Termination by Employee. Employee has the right to terminate his employment under this
Agreement for any or no reason, upon ninety (90) days prior written notice to the Company.
1.6 Indemnity. The Company shall indemnify Employee and hold him harmless to the fullest
extent permissible under applicable law for all acts or decisions made by him in good faith while
performing services for the Company. The Company shall also use its best efforts to obtain coverage
for him under any insurance policy obtained during the term of this Agreement covering the other
officers and directors of the Company against lawsuits.
2. Compensation and Benefits.
2.1 Base Compensation. During the Employment Period, the Company will pay Employee an annual
base salary (“Base Salary”) as follows:
(a) through December 31, 2007, all remaining installments based upon his current base salary
of $266,255.00 (the “Current Base Salary”);
(b) from January 1, 2008 through December 31, 2008, the Current Base Salary, plus an amount
equal to the percentage increase in the Consumer Price Index — All Items during the period January
1, 2007 through December 31, 2007 (the “2008 Base Salary”); and
(c) from January 1, 2009 through December 31, 2009, the 2008 Base Salary, plus an amount equal
to the percentage increase in the Consumer Price Index — All Items during the period January 1,
2008 through December 31, 2008, plus any increase as determined by the Board and/or the Board’s
Compensation Committee in its annual review of the Employee’s base salary as contemplated below in
this Section 2.1 (the “2009 Base Salary”).
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The Employee’s Base Salary, per annum, shall be payable in accordance with the Company’s
regular payroll policy for senior executive salaried employees. At least once every twelve (12)
months, the Board and/or the Board’s Compensation Committee shall perform an annual review of
Employee’s Base Salary based on Employee’s performance of his duties and the Company’s other
compensation policies and make such increase thereto as it deems appropriate, provided that at each
such twelve-month interval the Base Salary shall be increased from its level during the prior
twelve-month period at least by a percentage no less than the percentage increase in the Consumer
Price Index — All Items during such prior twelve-month period. Upon termination of the Employment
Period, the Base Salary for any partial year will be prorated based on the number of days elapsed
in such year during which the Employment Period had continued.
2.2 Senior Management Plan Bonus. Within sixty (60) days following the end of each fiscal
year, the Board and/or the Board’s Compensation Committee, as part of its annual review of
Employee’s performance, shall consider in its sole discretion the merits of a bonus to Employee
pursuant to and in accordance with the Regent Communications, Inc. Senior Management Bonus Plan,
and in the event a bonus is warranted, shall cause the Company to award to Employee a bonus (the
“Senior Management Plan Bonus”) for such year. The target amount of the Senior Management Plan
Bonus is eighty percent (80%) of the Employee’s current Base Salary, subject to adjustments by the
Board and/or the Board’s Compensation Committee in its reasonable judgment. Such payment shall be
paid in its entirety no later than the 15th day of the third month following the end of
the fiscal year that the bonus was earned.
2.3 Stock Options and Other Equity-Based Incentives. It is agreed that, in addition to and
not in lieu of Senior Management Plan Bonuses, the Company will, in January of each year and on
such terms and conditions as the Board and/or the Board’s Compensation Committee shall deem
appropriate, in its sole discretion, grant to Employee pursuant to the Company’s 2005 Incentive
Compensation Plan, or any other incentive compensation plans as may be adopted by the Company from
time to time, restricted stock, stock options or other equity-based incentives and/or grant to
Employee pursuant to the Company’s 1998 Management Stock Option Plan qualified and/or non-qualified
options to acquire common stock of the Company. For purposes of this Agreement, the term “options”
shall be deemed to mean stock options and any other equity-based incentives including, but not
limited to, restricted stock, stock units, stock appreciation rights and similar instruments.
2.4 Benefits. In addition to the Base Salary, any Senior Management Plan Bonus and any
restricted stock, stock options or other equity-based incentives payable or granted to Employee
hereunder, Employee will be entitled to the following benefits during the Employment Period:
(a) payments of premiums for hospitalization, disability, life and health insurance, to the
extent offered by the Company, and in amounts consistent with Company policy, for all key
management employees, as reasonably determined by the Board;
(b) up to four (4) weeks paid vacation each year with salary, provided that unused vacation
time shall not be carried over to subsequent years;
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(c) reimbursement for reasonable, ordinary and necessary out-of-pocket business expenses
incurred by Employee in the performance of his duties, subject to the Company’s policies in effect
from time to time with respect to travel, entertainment and other expenses, including without
limitation, requirements with respect to reporting and documentation of such expenses;
(d) use of an automobile at the Company’s expense which shall include expenses for parking in
the area of the Company’s offices and for comprehensive insurance coverage for the automobile; and
(e) other benefit arrangements and perquisites, including a 401(k) or similar tax deferral
plan, to the extent made generally available by the Company to its executives and key management
employees.
To the extent any of the expenses reimbursed to Employee under this Section 2.4 are taxable
to Employee, the following conditions apply: (i) Employee represents that his tax year is the
calendar year and shall continue to be the calendar year until all reimbursements under this
Section are made; (ii) the amount of expenses eligible for reimbursement during any one calendar
year shall not affect the expenses eligible for reimbursement in any other calendar year; (iii)
Employee shall present Company with invoices and/or other supporting documentation related to such
expenses that are reasonably acceptable to Company and that are provided no later than six months
after the end of the calendar year in which they are incurred. Reimbursements shall be made as
soon as administratively feasible following the receipt of such documentation but in no event
later than the end of the calendar year following the calendar year in which the expense is
incurred; and (iv) this right to reimbursement is not subject to liquidation or exchange for
another benefit.
2.5 Taxes, etc. All compensation payable to Employee hereunder is stated in gross amount and
shall be subject to all applicable withholding taxes, other normal payroll and any other amounts
required by law to be withheld.
2.6 Compensation After Termination.
(a) If the Company determines that the Employee has incurred a Disability, the Company agrees
to continue to pay Employee his current Base Salary beginning on the date of determination of
Disability, and ending one year thereafter, provided that the Company may cease making payments
within such year if Employee becomes eligible to receive and begins receiving long-term disability
payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per
month on the same basis as he was immediately before incurrence of the Disability, and provided,
further, that if allowed by the terms of the applicable long-term disability policy, the amount
payable by the Company within such year, the amount payable by the Company shall be reduced by the
amount payable under the applicable long-term disability policy such that the aggregate amount
received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis
as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to
be construed as a reason to delay the commencement or reduce the amount of long-term disability
benefits payable from the Company’s insurance carrier. The Employment Period may be terminated
pursuant to Section 1.4 after the Company’s determination of the Disability.
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(b) If the Employment Period is terminated by the Company without Cause, Employee shall be
entitled to receive as severance pay (in addition to the payment of the Base Salary through the
date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the
greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii)
Employee’s current Base Salary for the remainder of the Employment Period. In addition, all
unvested stock options, shares of restricted stock and other equity awards held by Employee shall
accelerate and vest in full as of the date of termination. Since the Employee is a “specified
employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts
that are deferred compensation are not payable to the Employee until six months after his date of
termination. Notwithstanding the preceding sentence and as an exception to the six-month delay
otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be
payable in regular installments in accordance with the Company’s general payroll practices for
salaried employees until the March 15th of the year following the year of termination
with the regular installment payment that immediately precedes March 15 to include any installment
amounts that would otherwise be delayed because of the six-month delay. After the expiration of
the six-month delay period following the date of termination, the monthly installment payments
will continue until the Employee is paid the remaining amounts (if any) due under this Section
2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking
other employment. The Company shall have no other obligations hereunder or otherwise with respect
to Employee’s employment from and after the termination or expiration date, and the Company shall
continue to have all other rights available hereunder (including, without limitation, all rights
under Sections 3, 4, and 6 at law or in equity).
(c) If the Employee’s employment is terminated by either the Company or the Employee for any
reason other than Employee’s death or disability within 24 months prior to or following a Change
of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s
employment is terminated due to Employee’s death or disability within 12 months prior to or
following a Change of Control notwithstanding that the Employment Period has otherwise expired,
Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of
termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of
(A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base
Salary at any time following the commencement of the Employment Period), (iii) an amount equal to
2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive
full calendar year prior to the date of termination, and (iv) the vesting of all stock options,
shares of restricted stock and other equity awards held by Employee shall accelerate and vest in
full. These amounts shall be paid in a lump sum and in immediately available funds as provided
herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections
2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March
15th of the year following the year of the Change of Control, the lump sum will be paid
immediately (but not later than the applicable March 15th) following the date of
termination. If the Employee’s termination of employment occurs later than the March
15th of the year following the year of the Change of Control, the lump sum will be
immediately payable after the expiration of six months after the date of such termination of
employment. If the payment due under this Section 2.6(c) is subject to a delay of six or less
months, the Company shall establish, and hold such amount due, in a rabbi trust until payable to
the Employee. Employee shall not be required to mitigate the amount of any payment required by
this Section 2.6(c) by seeking other employment or otherwise and no such payment shall be offset
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or reduced by the amount of any compensation or benefits provided to Employee in any
subsequent employment. In the event that the payment amounts due to Employee pursuant to this
Section 2.6(c) and other provisions of this Agreement, plus any other compensation or benefits
provided to Employee under any other agreement, plan or arrangement with the Company, following a
Change of Control would result in an “excess parachute payment” within the meaning of Section 280G
of the Code, then the amount due to Employee shall be capped at the maximum amount payable to
Employee before such “excess parachute payment” provisions would otherwise apply by reducing
first, the amount of Base Salary otherwise payable in cash compensation under Section 2.6(c)(ii),
and second, the amount of Senior Management Bonus otherwise payable in cash compensation under
Section 2.6(c)(iii). For purposes of determining the limitations under Section 280G of the Code,
it is recognized that the non-competition and non-solicitation provisions of Section 3 of this
Agreement constitute a refraining from the performance of services such that the reasonable value
for such provisions is excluded from the determination of the amount of “parachute payments” as
defined by Section 280G of the Code. If any tax for excess parachute payments is imposed on the
Employee under Section 4999 of the Code, the Company will be responsible for payment of the tax,
penalty, interest and any related audit costs incurred by Employee, including any payments
necessary to place the Employee in the same taxable position he would have been had no excess
parachute payments existed, and the Employee will be required to return to the Company any excess
amounts received over the limitations of Section 280G of the Code.
All calculations, valuations and amounts payable under this Section 2.6(c), and the
limitations imposed by Section 280G of the Code, shall be calculated at Company expense by an
independent accounting firm that is mutually agreed upon by the Company and the Employee.
For purposes of this Agreement, the term “Change of Control” shall mean the purchase or other
acquisition by any person, entity or group of persons, within the meaning of section 13(d) or 14(d)
of the Securities Exchange Act of 1934 (“Act”), or any comparable successor provisions, of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Act) of 30 percent or
more of either the outstanding shares of common stock or the combined voting power of Regent
Communications, Inc.’s then outstanding voting securities entitled to vote generally, or the
approval by the stockholders of Regent Communications, Inc. of a reorganization, merger, or
consolidation, in each case, with respect to which persons who were stockholders of Regent
Communications, Inc. immediately prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than 50 percent of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or consolidated Regent
Communications, Inc.’s then outstanding securities, or a liquidation or dissolution of Regent
Communications, Inc. or of the sale of all or substantially all of Regent Communications, Inc.’s
assets , it being understood and agreed that a “sale of all or substantially all” of the Company’s
assets shall be deemed to have occurred if at any time after the date hereof through the 24 month
anniversary of the date of termination of Employee’s employment with the Company, the value of
the Company’s assets is less than 50% of the value of the Company’s assets as of the later of (A)
the beginning of the Employment Period or (B) 24 months prior to the date of termination of
Employee’s employment with the Company, due to one or more transactions in which assets of the
Company are sold, transferred or otherwise disposed of to one or more persons. It shall not be
considered a “Change of Control” if the sale or transfer of assets is to: (i) a shareholder of the
Company (immediately before the asset transfer) in exchange for or with respect to its stock; (ii)
an entity, 50 percent or more of the total value or voting power of
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which is owned, directly or indirectly, by the Company; (iii) a person, or a group of people, that
owns, directly or indirectly, 50 percent or more of the total value or voting power of all the
outstanding stock of the Company; or (iv) an entity, at least 50 percent of the total value or
voting power of which is owned, directly or indirectly, by a person described in (iii) above. In
addition, the term “Change of Control” shall include changes in the Regent Communications, Inc.
Board of Directors during any twelve (12) month period, such that individuals who, as of the
beginning of such period, constitute the Board (the “Incumbent Directors”) cease for any reason to
constitute at least a majority of the Board, provided that any person becoming a director
subsequent to the beginning of such period whose election or nomination for election was approved
by a vote of at least a majority of the Incumbent Directors then on the Board (either by a specific
vote or by approval of the proxy statement of the Company in which such person is named as a
nominee for director, without written objection to such nomination) shall be deemed to be an
Incumbent Director.
(d) If the Employment Period is terminated pursuant to Section 2.6(a) or 2.6(b) above,
Employee shall be entitled to receive, at such time it would otherwise be payable, any Senior
Management Plan Bonus which would have been payable, based upon the Company’s performance over the
full fiscal year, prorated for that portion of the fiscal year during which the Employee was
employed by the Company.
(e) If the Employment Period is terminated pursuant to Section 2.6(a), 2.6(b) or 2.6(c)
above, for a number of months equal to the lesser of (a) twelve (12) or (b) the number of
months remaining until Employee’s 65th birthday (the “Continuation Period”), the Company
shall at its expense continue on behalf of Employee and his dependents and beneficiaries (to
the same extent provided to the dependents and beneficiaries prior to Employee’s termination) the
life insurance, medical, dental, and hospitalization benefits provided (x) to Employee by the
Company at any time within ninety (90) days preceding such termination, or (y) to other similarly
situated executives who continue in the employ of the Company during the Continuation Period.
The coverage and benefits (including deductibles and costs) provided in this Section 2.6 (e)
during the Continuation Period shall be no less favorable to Employee and his dependents and
beneficiaries, than the most favorable of such coverages and benefits set forth in clauses (x)
and (y) above. The Company’s obligation hereunder with respect to the foregoing benefits shall
be limited to the extent that Employee obtains any such benefits pursuant to a subsequent
employer’s benefit plans, in which case the Company may reduce the coverage of any benefits it is
required to provide Employee hereunder as long as the aggregate coverages and benefits of the
combined benefit plans are no less favorable to Employee than the coverages and benefits required
to be provided hereunder. This Section 2.6(e) shall not be interpreted so as to limit any
benefits to which Employee or his dependents or beneficiaries may be entitled under any of the
Company’s employee benefit plans, programs or practices following Employee’s termination of
employment, including without limitation, retiree medical and life insurance benefits.
To the extent any of the expenses reimbursed to Employee under this Section 2.6(e) are
taxable to Employee, the following conditions apply: (i) Employee represents that his tax year is
the calendar year and shall continue to be the calendar year until all reimbursements under this
Section are made; (ii) the amount of expenses eligible for reimbursement during any one calendar
year shall not affect the expenses eligible for reimbursement in any other calendar year; (iii)
Employee shall present Company with invoices and/or other supporting documentation related to
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such expenses that are reasonably acceptable to Company and that are provided no later than six
months after the end of the calendar year in which they are incurred. Reimbursements shall be
made as soon as administratively feasible following the receipt of such documentation but in no
event later than the end of the calendar year following the calendar year in which the expense is
incurred; and (iv) this right to reimbursement is not subject to liquidation or exchange for
another benefit.
(f) If any tax is imposed on Employee under Section 409A of the Code with respect to any
payment made by the Company to Employee pursuant to this Section 2.6, the Company will be
responsible for payment of such tax, penalty, interest and any related audit costs incurred by
Employee, including any payments necessary to place the Employee in the same taxable position he
would have been had no tax been imposed upon him pursuant to Section 409A of the Code.
2.7 Profit Sharing, Pension and Salary Deferral Benefits. It is understood by the parties to
this Agreement that, during the Employment Period, Employee shall be entitled to participate in or
accrue benefits under any pension, salary deferral or profit sharing plan now existing or hereafter
created for employees of the Company upon terms and conditions no less favorable than those to
which the Company may provide for other senior executive employees.
3. Covenant Not to Compete.
3.1 Non-Competition. Employee agrees that during the Employment Period and for the 18-month
period immediately following the termination of his employment with the Company, he shall not,
within a twenty-five (25) mile radius of any radio station transmission tower or studio then owned
or operated, directly or indirectly, by the Company (the “Territory”), engage in any of the
following activities:
(a) Directly or indirectly enter into the employ or render any service to or act in concert
with any person, partnership, corporation or other entity engaged in the ownership or operation of
radio stations (the “Radio Business”) with a radio station transmission tower or studio located
within the Territory; or
(b) Directly or indirectly engage in the Radio Business with a radio station transmission
tower or studio located within the Territory on his own account; or
(c) Become interested in any such Radio Business with a radio station transmission tower or
studio located within the Territory directly or indirectly as an individual, partner, shareholder,
director, officer, principal, agent, employee, consultant, creditor or in any other relationship
or capacity; provided, that the purchase of a publicly traded security of a corporation engaged in
the Radio Business shall not in itself be deemed violative of this Agreement so long as Employee
does not own, directly or indirectly, more than 3% of the securities of such corporation.
3.2 Non-Solicitation. Employee agrees that during the Employment Period and for the 18-month
period immediately following the termination of his employment with the Company, he shall not
(other than in the regular course of the Company’s business) within the Territory solicit, directly
or indirectly, business of the type then being performed by the Company
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from any person, partnership, corporation or other entity which is a customer of the Company
at the time Employee’s employment with the Company terminates, or was such a customer within the
one-year period immediately prior thereto, or to the knowledge of Employee at the date of
termination of employment, is a person, partnership, corporation or other entity with which the
Company plans to do a substantial amount of business within the one-year period after such
termination of employment.
4. Non-Inducement and Non-Disclosure.
4.1 Non-Inducement. Employee agrees that during the Employment Period and for a one-year
period immediately following the termination of his employment with the Company, he shall not
directly or indirectly, individually or on behalf of persons not parties to this Agreement, aid or
endeavor to solicit or induce any of the Company’s employees to leave their employment with the
Company in order to accept employment with Employee or another person, partnership, corporation or
other entity.
4.2 Non-Disclosure. At no time shall Employee divulge, furnish or make accessible to anyone
(other than in the regular course of the Company’s business) any knowledge or information with
respect to confidential information or data of the Company, or with respect to any confidential
information or data of any of the customers of the Company, or with respect to any other
confidential aspect of the business or products or services of the Company or its customers. Upon
termination of his employment with the Company, Employee shall return to the Company all records,
documents and material containing confidential information of the Company prepared by Employee or
coming into his possession by virtue of his employment with the Company, including all copies
thereof.
5. Effect of Termination Without Cause. Notwithstanding the provisions of Sections 3 and 4
above, the restrictions imposed upon Employee in Sections 3.1, 3.2, and 4.1 of this Agreement
during the period following the termination of his employment hereunder shall apply in the event
Employee’s employment hereunder is terminated by the Company without cause pursuant to Section
1.4(ii) only for a period of one year provided Employee has received and has elected to accept the
severance pay under Section 2.6(b).
6. Remedies. Employee acknowledges and agrees that the covenants set forth in Sections 3 and
4 of this Agreement (collectively, the “Restrictive Covenants”) are reasonable and necessary for
the protection of the Company’s business interests and compliance therewith will not deprive
Employee of the ability to earn a suitable living, that irreparable injury will result to the
Company if Employee breaches any of the terms of the Restrictive Covenants, and that in the event
of Employee’s actual or threatened breach of any such Restrictive Covenants, the Company will have
no adequate remedy at law. Employee accordingly agrees that in the event of any actual or
threatened breach by him of any of the Restrictive Covenants, the Company shall be entitled to
immediate temporary injunctive and other equitable relief, without the necessity of showing actual
monetary damages, subject to hearing as soon thereafter as possible. In such event, the periods of
time referred to in Sections 3 and 4 shall be deemed extended for a period equal to the respective
period during which Employee is in breach thereof, in order to provide for injunctive relief and
specific performance for a period equal to the full term thereof. Nothing contained herein shall be
construed as prohibiting the Company from pursuing any other remedies available to it for such
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breach or threatened breach, including the recovery of any damages which it is able to prove.
The covenants contained in Section 4 and 5 shall be construed as separate covenants, and if any
court shall finally determine that the restraints provided for in any such covenants are too broad
as to the geographic area, activity or time covered, said area, activity or time covered may be
reduced to whatever extent the court deems reasonable and such covenants shall be enforced as to
such reduced area, activity or time. Employee shall indemnify and hold Company harmless from any
liability, loss, damage, judgment, cost or expense(including reasonable attorneys’ fees and
expenses) arising out of any claim or suit resulting from Employee’s breach of these covenants or
his failure to perform a duty hereunder.
7. No Other Non-Compete Agreements. Notwithstanding anything to the contrary contained
herein, Employee hereby represents, warrants and covenants to Company that Employee (i) is not a
party to nor bound by any non-competition, non-solicitation, confidentiality or other agreement of
any kind which would conflict with or prevent his employment hereunder or the full performance of
all of his duties hereunder, and (ii) has not, and will not, wrongfully use any confidential
information or know-how taken from another employer. Employee hereby agrees to indemnify and hold
the Company harmless from any claim, loss, damage and expense hereafter incurred by the Company as
a result of any breach of the foregoing representations, warranties or covenants made by Employee
in this Section.
8. Life Insurance. The Company may at its discretion and at any time apply for and procure as
owner and for its own benefit and at its own expense, insurance on the life of Employee in such
amounts and in such form or forms as the Company may choose. Employee shall cooperate with the
Company in procuring such insurance and shall, at the request of the Company, submit to such
medical examinations, supply such information and execute such documents as may be required by the
insurance company or companies to whom the Company has applied for such insurance. Employee shall
have no interest whatsoever in any such policy or policies, except that, upon the termination of
Employee’s employment hereunder, Employee shall have the privilege of purchasing any such insurance
from the Company for an amount equal to the actual premiums thereon previously paid by the Company.
9. Income Tax Treatment. Employee and the Company acknowledge that it is the intention of the
Company to deduct all amounts paid under Section 2 hereof as ordinary and necessary business
expenses for income tax purposes. Employee agrees and represents that he will treat all amounts
paid hereunder as ordinary income for income tax purposes, and should he report such amounts as
other than ordinary income for income tax purposes, he will indemnify and hold the Company harmless
from and against any and all taxes, penalties, interest, costs and expenses, including reasonable
attorneys’ and accounting fees and costs, which are incurred by the Company directly or indirectly
as a result thereof.
10. Assignment. No party hereto may assign or delegate any of its rights or obligations
hereunder without the prior written consent of the other party hereto, provided, however, the
Company shall have the right to assign all or any part of its rights and obligations under this
Agreement to (i) any affiliate of the Company to which the Business is assigned at any time or (ii)
the purchaser of all or substantially all of the assets of the Company. Except as otherwise
expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf
of any of
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the parties hereto shall bind and inure to the benefit of the respective successors and
permitted assigns of the parties hereto whether so expressed or not.
11. Severability. Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
12. Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute one and the same
Agreement.
13. Descriptive Headings; Interpretation. The descriptive headings in this Agreement are
inserted for convenience of reference only and are not intended to be part of or to affect the
meaning or interpretation of this Agreement. The use of the word “including” in this Agreement
shall be by way of example rather than by limitation.
14. Notices. All notices, demands or other communications to be given or delivered under or
by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been
duly given if (i) delivered personally to the recipient, (ii) sent to the recipient by reputable
express courier service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid, or (iii) transmitted by telecopy to the
recipient with a confirmation copy to follow the next day to be delivered by overnight carrier.
Such notices, demands and other communications shall be sent to the addresses indicated below:
| (a) | If to Employee: | (b) | If to the Company: | |||||||
| Xxxxxxx X. Xxxxxxxxxxxx | Regent Communications, Inc. | |||||||||
| 000 Xxxx XxxxxXxxxxx Xxxx. | 000 Xxxx XxxxxXxxxxx Xxxx. | |||||||||
| 0xx Xxxxx | 0xx Xxxxx | |||||||||
| Xxxxxxxxx, XX 00000 | Xxxxxxxxx, XX 00000 | |||||||||
| Facsimile No. 859/292-0352 | Facsimile No. 859/292-0352 |
or to such other address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. Date of service of such notice shall be (w)
the date such notice is personally delivered, (x) three days after the date of mailing if sent by
certified or registered mail, (y) one day after the date of delivery to the overnight courier if
sent by overnight courier or (z) the next business day after the date of transmittal by telecopy.
15. Preamble; Preliminary Recitals. The Preliminary Recitals set forth in the Preamble hereto
are hereby incorporated and made part of this Agreement.
16. Waiver. No modification, termination or attempted waiver of this Agreement shall be valid
unless in writing and signed by the party against whom the same is sought to be entered. Either
party’s failure to enforce any provision or provisions of this Agreement shall not in any way be
construed as a waiver of any such provision or provisions as to any future violations thereof, nor
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prevent that party thereafter from enforcing each and every other provision of this Agreement.
The rights granted the parties herein are cumulative and the waiver by a party of any single
remedy shall not constitute a waiver of such party’s right to assert all other legal remedies
available to him or it under the circumstances.
17. Additional Obligations. Both during and after the Employment Period, Employee shall, upon
reasonable notice, furnish the Company with such information as may be in Employee’s possession,
and cooperate with the Company, as may reasonably be requested by the Company (and, after the
Employment Period, with due consideration for Employee’s obligations with respect to any new
employment or business activity) in connection with any litigation in which the Company or any
affiliate is or may become a party. The Company shall reimburse Employee for all reasonable
expenses incurred by Employee in fulfilling Employee’s obligations under this Section 17.
18. Governing Law. This Agreement shall be construed and enforced in accordance with, and all
questions concerning the construction, validity, interpretation and performance of this Agreement
shall be governed by, the laws of the Commonwealth of Kentucky without giving effect to provisions
thereof regarding conflict of laws.
19. Effect of Termination. Notwithstanding any termination of Employee’s employment with the
Company or the expiration of this Agreement, unless superseded by a new employment agreement
between Company and Employee, the terms and conditions of this Agreement shall continue in full
force and effect except that the Company shall have no right to require, nor shall Employee have
any obligation to continue, the Employee’s ongoing employment with the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
[Signatures on following page]
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| COMPANY: REGENT COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx, Chairman of the | ||||
| Compensation Committee of the Board of Directors |
||||
| EMPLOYEE: |
||||
| /s/ Xxxxxxx X. Xxxxxxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxxxxxx | ||||
Signature Page to Executive Employment Agreement dated December 28, 2007
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