EXHIBIT 10(e)
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement"), effective as of
January 1, 2004 by and between REGENT COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), and TERRY S. JACOBS ("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 since 1979 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 Chairman and Chief Executive 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 Chairman and Chief
Executive Officer of the Company, all in accordance with the terms and
conditions of this Agreement.
1.2 DUTIES AND POWERS.
(a) During the Employment Period, Employee will
serve as the Company's Chairman and Chief Executive 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. Notwithstanding the
foregoing or anything else in this Agreement to the contrary, the parties agree
and acknowledge that Employee currently serves as a member of the board of
directors of Capital Title Group, Inc. and of American Financial Group and their
respective affiliates, and may continue to do so throughout the Employment
Period so long as such activities do not materially interfere with any of
Employee's other obligations to the Company hereunder. In addition, Employee may
serve on additional 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 January 1, 2004 and shall continue through
and until December 31, 2006 (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 15.
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 (i) a crime involving moral turpitude, dishonesty or theft, (ii)
dishonesty or disloyalty with respect to the Company, or (iii) fraud;
(b) the determination by the Board in the
exercise of its reasonable judgment that Employee has committed an act that
indicates alcohol or drug abuse by Employee that adversely affects his
performance hereunder;
-2-
(c) a material breach by Employee of any of the
terms and conditions of Sections 3 or 4 of this Agreement; or
(d) Employee's gross negligence, habitual
neglect, or intentional misconduct in the performance of his duties hereunder.
Employee shall be deemed to have a "Disability" for purposes of this
Agreement if Employee shall be unable, by reason of illness or physical or
mental incapacity or disability (from any cause or causes whatsoever), to
perform Employee's essential job functions hereunder, whether with or without
reasonable accommodation by the Company, in substantially the manner and to the
extent required hereunder prior to the commencement of such Disability, for a
total period of 90 days in any 180-day period. 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 BOARD OF DIRECTORS AND RESIGNATION. Throughout the
Employment Period, the Company agrees to seek to cause Employee to be elected to
the Board. Unless by virtue of his beneficial ownership of voting stock of the
Company he has voting control over a number of shares sufficient to assure his
election to the Board, upon the termination of Employee's employment with the
Company for any reason, Employee shall be deemed to have automatically resigned
from any position he may then hold on the Board. Such resignation shall be
deemed effective immediately without the requirement that a written resignation
be delivered.
1.7 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 of $352,688 per annum (the "Base
Salary"), 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
-3-
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 seventy five
(75) 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 in
an amount to be determined by the Board and/or the Board's Compensation
Committee in its reasonable judgment.
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
1998 Management Stock Option Plan qualified and/or non-qualified options to
acquire common stock of the Company and/or grant to Employee stock options or
other equity-based incentives pursuant to any other incentive compensation plans
as may be adopted by the Company from time to time. 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 stock options 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;
(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.
-4-
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 Employment Period is terminated (i)
by the Company without Cause; (ii) by reason of Employee's Disability; or (iii)
through expiration of the Employment Period or death of Employee, then, (1) all
shares of the Company's capital stock beneficially owned by the Employee may, at
the Company's election, be repurchased by the Company for cash equal to the fair
market value thereof at the effective date of termination (with the cash payment
in full made promptly after a termination pursuant to this Section 2.6(a)(i) or
2.6(a)(iii) and with the cash payment made in three equal consecutive annual
installments beginning on the date of termination pursuant to this Section
2.6(a)(ii)); (2) except as otherwise provided in the specific terms of the
option agreement or grant, all unvested options to purchase stock of the Company
held by Employee shall cease and terminate as of the date of termination, and
all vested but unexercised options to purchase stock of the Company held by
Employee may, at the Company's election, be repurchased by the Company
(according to the same payment terms as apply to shares of the Company's capital
stock) for an amount constituting the excess of fair market value of the shares
subject to the options over the exercise price of the options, if any, and if
there is no such excess, then such options may be repurchased by the Company for
one hundred dollars ($100) in the aggregate; whereupon, the Company shall have
no further obligations hereunder or otherwise with respect to Employee's
employment from and after the termination or expiration date (except for the
unpaid installments and payment of Employee's current Base Salary accrued
through the date of termination or expiration) and the Company shall continue to
have all other rights available hereunder (including without limitation, all
rights under Sections 3 and 4 at law or in equity). For purposes of this
Agreement, "fair market value" of shares of the Company's capital stock shall be
determined as follows:
i. If the Company's stock is listed on
a national securities exchange, the fair market value shall be the average of
the highest and lowest selling price of a share of stock on such exchange on the
date of termination, or if there were no sales on such date, then on the next
prior business day on which there were sales.
ii. If the stock is traded other than
on a national securities exchange, the fair market value shall be the average
between the closing bid and asked price on the date of termination, as reported
by the National Association of Securities Dealers Automated Quotation System or
such other source of quotations for, or reports of trading of, the stock as the
Board of Directors may select from time to time, or if there is no bid and asked
price on said date, then on the next prior business day on which there was a bid
and asked price.
If neither of the methods described in (i) or (ii) above is available,
and the Company and the Employee cannot agree on the fair market value within
thirty (30) days after termination, then each of the Company and the Employee
shall promptly appoint an appraiser, who will in turn promptly select a third
appraiser, and the three appraisers will, within thirty (30) days of their
appointment, determine the fair market value of the stock in such manner as a
majority of them deems appropriate.
Any shares of stock and any options purchased by the Company shall be
transferred to the
-5-
Company free and clear of all liens, encumbrances or rights of third parties.
(b) If the Employment Period is terminated by
the Company because of Employee's Disability, the Company agrees to continue to
pay Employee his current Base Salary during such period of Disability, said
payments to continue for a maximum of one year. Thereafter, Employee shall be
paid by the Company's insurer, if any, such disability benefits as may be paid
to any employee of the Company under any disability plan then in effect, if any.
(c) 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 Discretionary 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, such amount to be payable in regular installments in accordance with the
Company's general payroll practices for salaried employees. Employee shall have
no obligation to mitigate these post-employment payments by seeking other
employment. Except pursuant to Section 2.6(a), 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).
(d) If the Employment Period is terminated by
either the Company or the Employee following a Change of Control or if the
Employee's employment is terminated within 24 months of 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, compensation and (ii) an amount equal to 2.25 times his current
Base Salary, provided, however, that in no event shall the amount due pursuant
to this clause (ii) be calculated upon a base salary less than the Employee's
Base Salary as of the date of the Change of Control. The amounts payable to
Employee pursuant to this Section 2.6(d) shall be paid in a lump sum and in
immediately available funds on the date that the Employee's employment is
terminated. Employee shall not be required to mitigate the amount of any payment
required by this Section 2.6(d) by seeking other employment or otherwise and no
such payment shall be offset 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(d) and other
provisions of this Agreement following a Change of Control would result in an
"excess parachute payment" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended ("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.
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,
-6-
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.
(e) If the Employment Period is terminated
pursuant to Section 2.6(a)(iii), 2.6(b), 2.6(c) or 2.6(d) 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.
(f) If the Employment Period is terminated
pursuant to Section 2.6(a)(iii), 2.6(b), 2.6(c) or 2.6(d) 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 (f) 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(f) 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.
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 equivalent to
those 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:
-7-
(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 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
-8-
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(c).
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 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
-9-
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 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:
Terry S. Jacobs Regent Communications, Inc.
100 East RiverCenter Blvd. 100 East RiverCenter Blvd.
-10-
9th Floor 9th Floor
Covington, KY 41011 Covington, KY 41011
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 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
-11-
COMPANY:
REGENT COMMUNICATIONS, INC.
By: /s/ William L. Stakelin
--------------------------------
Title: President
EMPLOYEE:
/s/ Terry S. Jacobs
-----------------------------------
Terry S. Jacobs
-12-