EXHIBIT 10(e)
REGENT COMMUNICATIONS, INC.
DEFERRED COMPENSATION PLAN
(EFFECTIVE AS OF OCTOBER 1, 2002)
REGENT COMMUNICATIONS, INC.
DEFERRED COMPENSATION PLAN
INTRODUCTION
Regent Communications, Inc. recognizes the unique qualifications of its
(and its Affiliates') executives and the valuable services they provide and
desires to establish a plan to provide an incentive for executives to defer
compensation. This Plan is intended to be an unfunded arrangement maintained by
Regent Communications, Inc. established for the purpose of providing deferred
compensation primarily for a select group of management or highly compensated
employees as described in sections 201(2), 301(a)(3), and 401(a)(1) of ERISA.
Regent Communications, Inc., on behalf of itself and its Affiliates,
hereby adopts the Regent Communications, Inc. Deferred Compensation Plan
effective October 1, 2002 as hereinafter provided. The rights of any person
whose status as an employee of the Company has terminated shall be determined
pursuant to the Plan as in effect on the date such employee terminates, unless a
subsequently adopted provision of the Plan is made specifically applicable to
such person.
ARTICLE I
DEFINITIONS
1.1 "ACCRUED BENEFIT" means the total of the Participant's Deferred Compensation
Account and Matching Contribution Account.
1.2 "AFFILIATE" means each of the following for such period of time as is
applicable under section 414 of the Code:
(a) a corporation which, together with the Company, is a member of a
controlled group of corporations within the meaning of section 414(b) of the
Code (as modified by section 415(h) thereof for the purposes of Article 5) and
the applicable regulations thereunder;
(b) a trade or business (whether or not incorporated) with which the
Company is under common control within the meaning of section 414(c) of the Code
(as modified by section 415(h) thereof for the purposes of Article 5) and the
applicable regulations thereunder;
(c) an organization which, together with the Company, is a member of an
affiliated service group (as defined in section 414(m) of the Code); and
(d) any other entity required to be aggregated with the Company under
section 414(o) of the Code.
1.3 "BENEFICIARY" means the person or entity who is entitled to receive the
distribution, if any, payable under the Plan upon a Participant's death. Each
Participant may designate a Beneficiary in a writing filed with the Company on a
form satisfactory to the Committee. Any designation of a
Beneficiary filed for purposes of the Plan may be revoked at any time and
another designation may be made by the Participant without the consent of any
person. If there is no properly designated beneficiary, then any death benefit
shall be payable to the Participant's estate.
1.4 "BOARD" means the Board of Directors of Regent Communications, Inc., as
constituted from time to time. Such Board of Directors may authorize any
committee of the Board or any other person or committee to act on its behalf
with respect to matters described in the Plan that require Board action.
1.5 "CODE" means the Internal Revenue Code of 1986, as amended from time to
time, and regulations relating thereto.
1.6 "COMMITTEE" means the committee appointed by the Board to administer the
Plan pursuant to Article VIII herein.
1.7 "COMPANY" means Regent Communications, Inc., a Delaware corporation, or any
successor thereto, including any successor to substantially all of its assets
that adopts and assumes the Plan at the time of transfer. The term "Company"
shall include any Affiliate, or any successor or assign of any of them. With
respect to particular Covered Employees and Participants, the term "Company"
means the corporation or entity by which they are or were employed.
1.8 "COMPENSATION" means, with respect to a Plan Year, the total amount of base
salary, wages and cash bonuses paid by the Company to a Covered Employee or
which would otherwise be paid but for a deferral election under this Plan, under
the Retirement Plan, or under a plan subject to section 125 of the Code.
1.9 "COVERED EMPLOYEE" means any executive officer or other employee of the
Company designated by the Board to be eligible to become a Participant in the
Plan and also means a former Covered Employee who has an Accrued Benefit under
the Plan.
1.10 "DEFERRED COMPENSATION ACCOUNT" means the account to be established by the
Company as a book reserve on behalf of each Participant to reflect the amounts
deferred by a Participant under Article II, as adjusted by earnings (or losses)
under Article IV.
1.11 "DEFERRED COMPENSATION AGREEMENT" means the form described in Article II of
the Plan.
1.12 "DISABILITY" means, with respect to a Participant, an injury or disease
which was not intentionally self-inflicted and which the Administrator has
determined, on the basis of such evidence as it determines to be satisfactory,
permanently prevents such Participant from performing his regular duties with
the Company.
1.13 "EFFECTIVE DATE" means October 1, 2002.
1.14 "EMPLOYMENT COMMENCEMENT DATE" means, with respect to an individual, the
date on which he first performs an hour of service with the Company.
1.15 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
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1.16 "INVESTMENT FUNDS" mean such investment funds that the Committee may, in
its discretion, make available in determining the earnings (or losses) on a
Participant's Accrued Benefit under Article IV.
1.17 "MATCHING CONTRIBUTION ACCOUNT" means the account to be established by the
Company as a book reserve on behalf of each Participant to reflect the matching
contributions by the Company on behalf of the Participant under Article III, as
adjusted by earnings (or losses) under Article IV. The Committee may determine
that the segregated accounting for matching contributions is not necessary, in
which event, all matching contributions will be accounted for as part of the
Participant's Deferred Compensation Account and all references herein to a
Matching Contribution Account will be deemed to be a reference to the
Participant's Deferred Compensation Account.
1.18 "PARTICIPANT" means a Covered Employee entitled to any Accrued Benefit
under the Plan.
1.19 "PLAN" means the Regent Communications, Inc. Deferred Compensation Plan as
set forth in this document, and as may be amended hereafter.
1.20 "PLAN YEAR" means initially the period beginning on the Effective Date and
ending on December 31, 2002, and thereafter means the calendar year.
1.21 "RETIREMENT PLAN" means the Regent Communications, Inc. 401(k) Profit
Sharing Plan as in effect on the Effective Date and as subsequently amended, or
any successor or replacement plan for such Retirement Plan.
1.22 "SERVICE" means each period beginning on the individual's Employment
Commencement Date and ending with his termination of employment (whether or not
continuous).
1.23 "TRUST" means the trust established by the Regent Communications, Inc.
Rabbi Trust Agreement between the Company and Circle Trust Company, or any
successor thereto under the terms of such Trust Agreement.
1.24 "VESTING YEARS" means each 12 month period of Service. Nonsuccessive
periods of Service shall be aggregated, and less than whole year periods of
Service (whether or not consecutive) shall be aggregated on the basis that 12
months of Service (30 days are deemed to be a month in the case of aggregation
of fractional months) equal a whole Vesting Year.
ARTICLE II
DEFERRAL ELECTIONS
2.1 GENERAL. For each Plan Year, a Participant may elect to have a portion of
his Compensation (expressed as a specified dollar amount or a whole percentage
of his Compensation) deferred and credited to his Deferred Compensation Account
by entering into a Deferred Compensation Agreement in the manner provided in
Section 2.2.
A Participant who elects to have a portion of his Compensation deferred
and credited to his Deferred Compensation Account shall be required, as a
condition to participation in the Plan during
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such Plan Year, to elect to make the maximum before-tax contributions to the
Retirement Plan permitted under the terms of the Retirement Plan and the Code.
2.2 DEFERRED COMPENSATION AGREEMENT. A Covered Employee desiring to exercise an
election under Section 2.1 shall file with the Company a Deferred Compensation
Agreement in such form as the Committee may prescribe. Such election may not be
changed during the Plan Year; provided however, at any time during the Plan Year
such Covered Employee may discontinue deferrals by revoking his election for the
remainder of the Plan Year. A Deferred Compensation Agreement shall be
authorization to the Company to defer a portion of the Covered Employee's
Compensation and shall provide that his Compensation be reduced by equal amounts
for each payroll period during the Plan Year or in such other manner as
permitted by the Committee.
2.3 TIME OF ELECTION. A Covered Employee's Deferred Compensation Agreement must
be delivered to the Employer prior to the beginning of each Plan Year by such
date as the Committee shall specify. Notwithstanding the foregoing, for the 2002
Plan Year only, a Covered Employee may deliver his Deferred Compensation
Agreement to the Company at any time before October 1, 2002, to be effective
only with respect to Compensation earned on or after October 1, 2002.
An employee of the Company who becomes a Covered Employee during a Plan
Year and who wishes to enter into a Deferred Compensation Agreement must deliver
the Deferred Compensation Agreement to the Company within the 30-day period
following the day he becomes a Covered Employee, but only with respect to
Compensation earned after the date such Deferred Compensation Agreement is
delivered to the Company.
2.4 BONUS ELECTIONS. Notwithstanding the provisions of Sections 2.2 and 2.3, a
Covered Employee desiring to exercise an election with respect to any regular or
annual bonus which is part of his Compensation earned in any Plan Year must
complete and deliver a Deferred Compensation Agreement to the Committee prior to
the first day of the Plan Year with respect to which the bonus is earned.
Notwithstanding the foregoing, for bonuses earned in the 2002 Plan
Year, a Covered Employee may complete and deliver a Deferred Compensation
Agreement to the Committee prior to October 1, 2002.
2.5 COMMENCEMENT OF DEFERRALS. A Deferred Compensation Agreement shall be
effective for the entire Plan Year to which it relates, but only with respect to
Compensation of the Covered Employee earned for services rendered after the
election is made in accordance with Sections 2.2 through 2.4.
2.6 CONTRIBUTION TO TRUST. Assets equal in value to the Compensation otherwise
payable to the Covered Employee during the Plan Year, but deferred in accordance
with Section 2.2, may be paid to the Trust no later than 60 days after the end
of the Plan Year to which the deferral relates.
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ARTICLE III
COMPANY MATCHING CONTRIBUTIONS
3.1 GENERAL. For each Plan Year that a Covered Employee elects to have a portion
of his Compensation deferred under Article II, the Company shall credit a
matching contribution to the Covered Employee's Matching Contribution Account in
the amount provided in Section 3.2.
3.2 MATCHING CONTRIBUTION RATE. The matching contribution shall be calculated by
reference to the Covered Employee's Compensation deferrals for the Plan Year
pursuant to Article II in such percentage of such portion of the Covered
Employee's deferrals as may be properly determined by the Board for the Plan
Year and applied uniformly to such Covered Employees, with such determination
occurring no later than 60 days after the end of the Plan Year for which the
deferrals were made. For the Plan Year beginning on October 1, 2002 and ending
on December 31, 2002, if no action of the Board is taken with respect to
determining a different rate of matching contribution, the matching contribution
shall be 100% of the Covered Employee's first 4% of deferrals to the Plan for
such short Plan Year.
ARTICLE IV
EARNINGS ON ACCRUED BENEFIT
4.1 GENERAL. The Accrued Benefit of each Participant shall be credited with an
additional amount of hypothetical earnings (or losses) determined under this
Article IV.
4.2 INVESTMENT ELECTIONS. Each Participant shall elect the manner in which his
Accrued Benefit, other than his Matching Contribution Account, is to be credited
with earnings (and losses) by designating how the Accrued Benefit (other than
Matching Contribution Account) is to be invested on a hypothetical basis from
among the Investment Funds. Such an election shall be made in writing, on a form
provided by the Committee, and delivered to the Company prior to the beginning
of each Plan Year by such date as the Committee shall determine. An investment
election shall be effective for the entire Plan Year to which it relates unless
modified by the Participant during the Plan Year at such times as permitted by
the Committee.
If a Participant fails to make and deliver an election for the
following Plan Year by the date as determined by the Committee, then his Accrued
Benefit (other than Matching Contribution Account) shall continue to be invested
in the manner provided under the investment election most recently in effect.
The Company shall elect the manner in which Matching Contribution
Accounts shall be credited with earnings (and losses) by designating how the
Matching Contribution Accounts are to be invested on a hypothetical basis from
among the Investment Funds. Absent any action by the Board, Matching
Contribution Accounts shall be treated as invested in shares of common stock of
Regent Communications, Inc.
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4.3 TRUST INVESTMENTS. Nothing contained herein shall be deemed to allow any
Participant to direct how the assets of the Trust are invested. Such investments
are governed by the terms of the Trust.
ARTICLE V
VESTING OF ACCRUED BENEFIT
5.1 DEFERRED COMPENSATION ACCOUNT. A Participant's rights to his Deferred
Compensation Account shall be nonforfeitable at all times.
5.2 MATCHING CONTRIBUTION ACCOUNT. A Participant shall have a nonforfeitable
right to his Matching Contribution Account upon attainment of age 65, death, or
termination of employment with the Company due to Disability. Subject to Section
7.2, prior to termination of employment with the Company, a Participant shall
have a nonforfeitable right to his Matching Contribution Account on the basis of
the number of Vesting Years with which he is credited, pursuant to the following
schedule:
Nonforfeitable
Vesting Years Percentage
------------- ---------------
Less than 1 0%
1 33.3%
2 66.6%
3 or more 100%
5.3 FORFEITURES. Forfeitures shall be applied to the reduction of the Employer's
future contributions to the Plan.
ARTICLE VI
DISTRIBUTION OF PLAN BENEFITS
6.1 DISTRIBUTABLE EVENTS. A Participant's Accrued Benefit shall become
distributable upon the Participant's separation from service with the Company
due to his retirement, death, Disability or other termination of employment.
6.2 COMMENCEMENT OF PAYMENT. Upon a separation from service described in Section
6.1, the Accrued Benefit of a Covered Employee shall be determined as of the
last day of the calendar quarter in which the separation from service occurs and
shall commence to be paid no later than the end of the next calendar quarter.
6.3 FORM OF PAYMENT. Upon a separation from service described in Section 6.1, a
Participant's Accrued Benefit shall be paid in cash in a single lump sum.
6.4 DEATH OF PARTICIPANT. Upon the death of a Participant, his Accrued Benefit
shall be payable to the Participant's Beneficiary in cash in a single lump sum.
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ARTICLE VII
CHANGE OF CONTROL
7.1 DEFINITION OF CHANGE OF CONTROL. For purposes of this Plan, 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.
7.2 VESTING UPON A CHANGE OF CONTROL. Notwithstanding the provisions of Section
5.2, upon a Change of Control a Participant shall have a nonforfeitable right to
his Matching Contribution Account.
7.3 PAYMENT OF BENEFITS UPON A CHANGE OF CONTROL. Notwithstanding the provisions
of Section 6.2, upon a Change of Control, the Participant's Accrued Benefit
shall be determined as of the last day of the calendar quarter in which the
Change of Control occurs and shall be paid no later than the end of the next
calendar quarter.
ARTICLE VIII
ADMINISTRATION
8.1 THE COMMITTEE. The Plan shall be administered by the Committee appointed by
the Board which shall serve at the discretion of the Board.
8.2 AUTHORITY OF THE COMMITTEE. Subject to the provisions of the Plan, the
Committee shall have full power to construe and interpret the Plan and to
establish, amend or waive rules and regulations for its administration.
8.3 DELEGATION OF CERTAIN RESPONSIBILITIES. The Committee may, in its sole
discretion, delegate to an officer or officers of the Company the administration
of the Plan under this Article VIII; provided however, that no such delegation
by the Committee shall be made with respect to the administration of the Plan as
it affects such officer or officers and provided further that the Committee may
not delegate its authority to correct errors, omissions or inconsistencies in
the Plan.
8.4 PROCEDURES OF THE COMMITTEE. All determinations of the Committee shall be
made by not less than a majority of its members present at the meeting (in
person or otherwise) at which a
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quorum is present. A majority of the entire Committee shall constitute a quorum
for the transaction of business. Any action required or permitted to be taken at
a meeting of the Committee may be taken without a meeting if a unanimous written
consent, which sets for the action, is signed by each member of the Committee
and filed with the minutes for proceedings of the Committee.
8.5 INDEMNIFICATION. The Company hereby agrees to indemnify the Committee and
each if its members and the Board and each of its members and to hold them
harmless against all liability, joint and several, for their acts, omissions and
conduct and for the acts, omissions and conduct of their duly appointed agents
made in good faith pursuant to the provisions of the Plan, including any
out-of-pocket expenses reasonably incurred in the defense of any claim relating
thereto; provided, however, that no indemnitee shall voluntarily assume or admit
any such liability, nor, except at its or his own cost, shall any of the
foregoing make any payment, assume any obligations or incur any expense in
respect thereof without the consent of the Board. The Company may purchase, at
its own expense, liability insurance to protect the Company and the persons
indemnified hereunder from liability incurred in the good faith administration
of this Plan.
ARTICLE IX
CLAIMS PROCEDURE
9.1 GENERAL. A Participant who believes that his Accrued Benefit has not paid in
full ("claimant") shall file such objection on the form prescribed for such
purpose with the Committee.
9.2 DENIALS. The Committee shall review such filing and provide a notice of the
decision regarding such filing to the claimant within a reasonable period of
time after receipt of the notice by the Committee.
9.3 NOTICE. Any claimant whose objection to a payment of his Accrued Benefit is
denied shall be furnished written notice setting forth:
(a) the specific reason or reasons for the denial;
(b) specific reference to the pertinent provision of the Plan upon
which the denial is based;
(c) a description of any additional material or information necessary
for the claimant to perfect the objection; and
(d) an explanation of the claims review procedure under the Plan.
9.4 APPEALS PROCEDURE. In order that a claimant may appeal a denial of his
objection to the amount of his Accrued Benefit, the claimant or the claimant's
duly authorized representative may:
(a) request a review by written application to the Committee, or its
designate, no later than sixty (60) days after receipt by the claimant of
written notification of denial of his objection;
(b) review pertinent documents; and
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(c) submit issues and comments in writing.
9.5 REVIEW. A decision on review of a denied objection shall be made not later
than thirty (30) days after receipt of a request for review, unless special
circumstances require an extension of time for processing, in which case a
decision shall be rendered within a reasonable period of time, but not later
than sixty (60) days after receipt of a request for review. The decision on
review shall be in writing and shall include the specific reason(s) for the
decision and the specific reference(s) to the pertinent provisions of the Plan
on which the decision is based.
ARTICLE X
AMENDMENT OR TERMINATION
10.1 AMENDMENT OR TERMINATION. The Plan may be amended in whole or in part from
time to time, or terminated, by action of the Board. Such termination and any
such amendment shall be binding on the Company and each Participant. Notice of
such amendment or termination shall be given in writing to each Participant.
10.2 EFFECT OF AMENDMENT OR TERMINATION. No amendment or termination of the Plan
shall directly or indirectly (1) reduce the value of a Participant's Accrued
Benefit, or (2) change the form or timing of the payment of a Participant's
Accrued Benefit with respect to contributions made prior to the date of the
amendment or termination.
ARTICLE XI
GENERAL PROVISIONS
11.1 NO FUNDING OR INTEREST IN ASSETS. The Plan shall at all times be entirely
unfunded and, except for the provisions relating to the transfer of assets to
the Trust, no provision shall at any time be made with respect to segregating
any assets of the Company for payment of any benefits hereunder. No Participant
shall acquire any property interest in the assets of the Company or of the
Trust, their rights being limited to receiving from the Company deferred
payments as set forth in this Plan and these rights are conditioned upon
continued compliance with the terms and conditions of this Plan.
To the extent that any Participant acquires a right to receive benefits
under this Plan, such right shall be no greater than the right of any unsecured
general creditor of the Company. Consistent with the foregoing, the Company has
established the Trust and the obligations of the Company under the Plan shall be
reduced to reflect the value of any payment of benefits from the Trust.
11.2 ASSIGNMENT OR ALIENATION. Except as required by law, no right of a
Participant to receive payments under this Plan shall be subject to transfer,
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge, or hypothecation or to execution, attachment, levy or similar process or
assignment by operation of law and any attempt, voluntary or involuntary, to
effect any such action shall be null and void and of no effect.
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11.3 EFFECT ON RETIREMENT PLAN. Any benefit under the Retirement Plan shall be
paid solely in accordance with the terms and conditions of the Retirement Plan
and nothing in this Plan shall operate or be construed in any way to modify,
amend or affect the terms and provisions of the Retirement Plan.
11.4 NO GUARANTY OF BENEFITS. Nothing contained in the Plan shall constitute a
guaranty by any person that the assets of an Company or the Trust will be
sufficient to pay any benefit hereunder.
11.5 NO ENLARGEMENT OF RIGHTS. No Participant shall have any right to a benefit
under the Plan except in accordance with the terms of the Plan. Establishment of
the Plan shall not be construed to give any Covered Employee the right to be
retained in the service of the Company.
11.6 CONSTRUCTION. This Plan shall be construed under the laws of the State of
Delaware. Article and Section headings are for convenience only and shall not be
considered as part of the terms and provisions of the Plan. Words in the
masculine gender shall include the feminine, and the singular shall include the
plural, and vice versa, unless qualified by the context.
11.7 WITHHOLDING OF TAXES. The Company shall withhold from any amounts payable
under the Plan, all federal, state, and local taxes that the Company determines
is legally required.
11.8 BINDING ON SUCCESSORS, PURCHASERS, TRANSFEREES AND ASSIGNEES. The Plan
shall be binding upon any successor or successors of the Company whether by
merger, consolidation, or otherwise.
IN WITNESS WHEREOF, Regent Communications, Inc., on behalf of itself
and its Affiliates, has caused this Plan to be adopted and executed by its duly
authorized officer as of this 25th day of July 2002.
REGENT COMMUNICATIONS, INC.
By: /s/ Terry S. Jacobs
Title: Chief Executive Officer
and Chairman of the Board
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