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Exhibit 4(ii)
REGENT COMMUNICATIONS, INC.
THIRD AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
THIS THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (this
"Agreement"), is made and entered into as of December 13, 1999 by and among
REGENT COMMUNICATIONS, INC., a Delaware corporation (the "Company"), ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), PNC BANK, N.A., a national
banking association, as trustee ("PNC"), ▇▇▇▇▇▇-▇▇▇▇▇▇ MEDIA PARTNERS, L.P., a
Delaware limited partnership ("▇▇▇▇▇▇-▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"),
WPG CORPORATE DEVELOPMENT ASSOCIATES V, L.P., a Delaware limited partnership,
and WPG CORPORATE DEVELOPMENT ASSOCIATES V (OVERSEAS), L.P., a Delaware limited
partnership (collectively, "WP&G"), RIVER CITIES CAPITAL FUND LIMITED
PARTNERSHIP, a Delaware limited partnership ("River Cities"), BMO FINANCIAL,
INC., a Delaware corporation ('"BMO"), GENERAL ELECTRIC CAPITAL CORPORATION, a
New York corporation ("GE Capital"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), MIAMI VALLEY
VENTURE FUND L.P., an Ohio limited partnership ("Miami Valley"), BLUE CHIP
CAPITAL FUND II LIMITED PARTNERSHIP, an Ohio limited partnership ("Blue ▇▇▇▇
▇▇"), THE ROMAN ARCH FUND L.P., a Delaware limited partnership, and THE ROMAN
ARCH FUND II L.P., a Delaware limited partnership (collectively, "The Roman Arch
Funds"), MESIROW CAPITAL PARTNERS VII, an Illinois limited partnership
("Mesirow"), PNC BANK, N.A., CUSTODIAN, a national banking association ("PNC
Custodian"), BLUE CHIP CAPITAL FUND III LIMITED PARTNERSHIP, an Ohio limited
partnership ("Blue Chip III"), and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
a New Jersey mutual life insurance company ("Prudential"), and.
W I T N E S S E T H:
WHEREAS, the Company, Jacobs, Stakelin, PNC, ▇▇▇▇▇▇-Sutton,
Ingram, WP&G, River Cities, BMO, ▇▇▇▇▇▇▇, Miami Valley, Blue ▇▇▇▇ ▇▇ and GE
Capital, are parties to a Second Amended and Restated Stockholders' Agreement,
dated as of June 15, 1998 (the "Second Amended Stockholders' Agreement"),
relating to the respective rights and obligations of such stockholders to each
other in respect of the Company and the shares of capital stock of the Company
held by them;
WHEREAS, the Second Amended Stockholders' Agreement has heretofore been
amended, pursuant to that certain Amendment dated as of January 11, 1999, that
certain Second Amendment dated as of June 21, 1999, and that certain Third
Amendment dated as of August 31, 1999, which added The Roman Arch Funds as
parties thereto;
WHEREAS, the Company has entered into separate Stock Purchase
Agreements, dated as of November 24, 1999 (collectively, the "Series K Stock
Purchase Agreements"), with Mesirow, PNC Custodian, Blue Chip III, Prudential,
and certain other parties (collectively, the "Series K
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Purchasers"), pursuant to which the Series K Purchasers have agreed to purchase
shares of the Company's Series K Convertible Preferred Stock;
WHEREAS, Subsection 8(f) of the Series K Stock Purchase Agreements
requires, as a condition to closing, that certain amendments be made to the
Second Amended Stockholders' Agreement;
WHEREAS, the Company and the Stockholders deem it desirable to enter
into this amended and restated agreement in order to effect the amendments set
forth in said section 8(f) and to set forth in a single instrument the terms of
the Second Amended Stockholders' Agreement as heretofore amended and to be so
amended, to add certain additional parties thereto and to set forth certain
agreements among themselves granting certain rights and imposing certain
restrictions on themselves, the Company and the shares of capital stock in the
Company now or at any time held by the Stockholders or issuable to the
Stockholders upon the exercise of any options or warrants now or at any time
held by the Stockholders (collectively, the "Shares").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree that the Second Amended Stockholders' Agreement, as amended, is hereby
amended and restated in its entirety as follows:
1. Definitions. As used in this Agreement:
"Additional Put Notice" as defined in Section 8(b).
"Additional Put Stockholder" as defined in Section 8(b).
"Affiliate" as applied to any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. The term "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as applied to
any Person, means the possession, directly or indirectly, of the power to vote
10% or more of the Voting Stock (or in the case of a Person which is not a
corporation, 10% or more of the ownership interest, beneficial or otherwise) of
such Person or otherwise to direct or cause the direction of the management and
policies of that Person, whether through the ownership of Voting Stock or other
ownership interest, by contract or otherwise.
"Agreed Value" means such amount as shall be agreed to by the Required
Stockholders and the Company as the total fair market value of the Company,
valued as a going-concern; provided, however, that such agreement by the Company
to the amount determined as Agreed Value must be approved by a majority of the
directors of the Company who are not nominated by ▇▇▇▇▇▇-▇▇▇▇▇▇ or any
Additional Put Stockholder.
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"Amended and Restated Charter" shall mean the amended and restated
certificate of incorporation of the Company, as in effect on the date hereof or
as hereinafter further amended in accordance with the provisions hereof and
thereof.
"Beneficially Own" or "Beneficial Ownership" shall, as to any Person,
be determined or computed in the manner provided under Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended, but on a fully-diluted
and as converted basis.
"Change of Control" means the appointment of any person other than
▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ as President, Chief Executive Officer or Chief Operating
Officer of the Company or the acquisition by any Person or related group of
Persons of direct or indirect beneficial ownership of more than 35% of the
outstanding Voting Stock.
"Closing Date" means the date hereof.
"Common Stock" means the common stock of the Company, $.01 par value.
"Common Stock Value" as defined in Section 8(d)(i)(3) below.
"Eligible Put Shares" means any Shares other than (i) Series C
Preferred Stock, (ii) Common Stock (other than (1) Common Stock issued to
▇▇▇▇▇▇-▇▇▇▇▇▇ upon conversion of Series C Preferred Stock, (2) Common Stock
issued on exercise of the GE Warrant or (3) Common Stock issued on exercise of
the Series F Warrants, which exercise occurs after the date the Triggering Put
Notice is given and provided that the Warrants so exercised were included among
the Put Shares), (iii) warrants or options other than the Series F Warrants,
(iv) the Company's 7% Series E Convertible Preferred Stock, $.01 par value, and
(v) any series of preferred stock first created by the Board of Directors after
June 15, 1998, other than the Company's 10% Series G Convertible Preferred
Stock, $.01 par value, the Company's 10% Series H Convertible Preferred Stock,
$.01 par value and the Company's 10% Series K Convertible Preferred Stock, $.01
par value.
"Exempt Transfer" as defined in Section 9 below.
"Existing Loan Agreement" shall mean the Credit Agreement, dated as of
November 14, 1997, among the Company, the lenders listed therein, GE Capital as
Documentation Agent, and Bank of Montreal, Chicago Branch, as Agent, as amended
through the date hereof.
"Indebtedness" of any Person shall mean the principal of, premium, if
any, and unpaid interest on: (a) indebtedness for money borrowed from others;
(b) indebtedness guaranteed, directly or indirectly, in any manner by such
Person, or in effect guaranteed, directly or indirectly, in any manner by such
Person through an agreement, contingent or otherwise, to supply funds to, or in
any other manner invest in, the debtor, or to purchase indebtedness, or to
purchase and pay for property if not delivered or pay for services if not
performed, primarily for the purpose of enabling the debtor to make payment of
the indebtedness or to assure the owners of the indebtedness against loss; (c)
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all indebtedness secured by any mortgage, lien, pledge, charge or other
encumbrance upon property owned by such Person, even though such Person has not
in any manner become liable for the payment of such indebtedness; (d) all
indebtedness of such Person created or arising under any conditional sale, lease
(intended primarily as a financing device) or other title retention or security
agreement with respect to property acquired by such Person even though the
rights and remedies of the seller, lessor or lender under such agreement or
lease in the event of default may be limited to repossession or sale of such
property; and (e) renewals, extensions and refundings of any such indebtedness.
"Immediate Family" means, as to any individual, (i) such individual's
spouse, children, parents or siblings, and (ii) the respective executors,
administrators, conservators, guardians or custodians during the minority of
such persons.
"Investors Committee" is defined in Subsection 6(a).
"▇▇▇▇▇▇ Employment Period" means the "Employment Period," as defined in
that certain Executive Employment Agreement, effective as of March 1, 1998,
between the Company and ▇▇▇▇▇▇ as in effect on the Closing Date or thereafter
amended with the consent of the Investors Committee or, after the consummation
of a Qualified Public Offering, as provided in Section 30 of this Agreement.
"Management Stockholder" means either or both of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
and any Transferee of either of them, other than pursuant to an Exempt Transfer
of the type referred to in clauses (iii) and (iv) of the definition thereof.
"Maximum Number" means, in the case of each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇,
733,333 (subject to adjustment in the case of stock splits, stock dividends,
reverse stock splits and the like occurring from and after the Closing Date).
"Permitted Indebtedness" means (i) Indebtedness incurred by the Company
under the Existing Loan Agreement in accordance with (and without giving effect
to any material waiver or modification of), the terms thereof, and (ii)
Indebtedness to the extent permitted under the Existing Loan Agreement (without
giving effect to any material waiver or modification thereof).
"Permitted Issuances" means any of the following: (i) the issuance of
shares of Common Stock on the conversion of any shares of Preferred Stock or any
other shares of convertible securities of the Company which are outstanding as
of the date hereof or the issuance of which is approved by the Investors
Committee or, after a Qualified Public Offering, as provided in Section 30 of
this Agreement; (ii) the issuance of shares of Common Stock or Preferred Stock
upon the exercise of currently outstanding options or warrants to purchase
Common Stock or Preferred Stock, or upon the exercise of options or warrants
which are issued after the date hereof with the approval of the Investors
Committee or, after a Qualified Public Offering, as provided in Section 30 of
this Agreement; and (iii) the grant and/or exercise of options under the
Company's 1998 Management
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Stock Option Plan (provided that the number of shares of Common Stock issued or
issuable to either ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ in respect of all options granted under
the Company's 1998 Management Stock Option Plan shall not exceed the Maximum
Number).
"Person" means a natural person, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization or a governmental entity or any department, agency or political
subdivision thereof.
"Preferred Stock" means any or all of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
Series F Preferred Stock, Series G Preferred Stock, Series H Preferred Stock, or
Series K Preferred Stock.
"Put Closing" as defined in Section 8(a).
"Put Shares" as defined in Section 8(c).
"Qualified Financing" as defined in Section 8(g)(ii) below.
"Qualified Public Offering" means an underwritten public offering of
Common Stock of the Company (i) at a per share price of at least $6.50
(equitably adjusted for any stock splits, reverse stock splits or stock
dividends occurring after the date hereof ) and generating not less than
$50,000,000 of gross proceeds payable to the Company, provided such Qualified
Public Offering shall occur prior to June 15, 2000, and (ii) if it occurs on or
after such date, at a price per share of $12.00 (equitably adjusted for any
stock splits, reverse stock splits or stock dividends occurring after the date
hereof), and generating not less than $25,000,000 of gross proceeds payable to
the Company (excluding the effect of any over-allotment option).
"Redemption and Warrant Agreement" means that certain Amended and
Restated Redemption and Warrant Agreement, dated as of March 31, 1998, among the
Company, Blue ▇▇▇▇ ▇▇, Miami Valley and Faircom.
"Required Stockholders" means ▇▇▇▇▇▇-▇▇▇▇▇▇ and such other Stockholders
as shall (together with ▇▇▇▇▇▇-▇▇▇▇▇▇) Beneficially Own more than 50% of the Put
Shares (other than Put Shares Beneficially Owned by the Management
Stockholders).
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Series A Director" means the one director entitled to be nominated to
serve by the holders of Series A Preferred Stock, voting separately as a class,
pursuant to the provisions Article FOURTH, Paragraph D, Section 11, of the
Amended and Restated Charter.
"Series A Preferred Stock" means the Company's 7% Series A Convertible
Preferred Stock, $.01 par value, together with all shares of Common Stock issued
upon conversion of such shares.
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"Series B Preferred Stock" means the Company's 7% Series B Senior
Convertible Preferred Stock, $.01 par value, together with all shares of Common
Stock issued upon conversion of such shares.
"Series B Preferred Stock Purchase Agreement" as defined in the
recitals hereto.
"Series C Director" means the one director entitled to be nominated to
serve by the holders of Series C Preferred Stock, voting separately as a class,
pursuant to the provisions of Article FOURTH, Paragraph F, Section 11, of the
Amended and Restated Charter.
"Series C Preferred Stock" means the Company's 7% Series C Convertible
Preferred Stock, $.01 par value, together with all shares of Common Stock issued
upon conversion of such shares.
"Series D Preferred Stock" means the Company's 7% Series D Convertible
Preferred Stock, $.01 par value, together with all shares of Common Stock issued
upon conversion of such shares.
"Series F Directors" means the two directors entitled to be nominated
to serve by the holders of Series F Preferred Stock, voting separately as a
class, pursuant to the provisions of Article FOURTH, Paragraph I, Section 10, of
the Amended and Restated Charter.
"Series F Preferred Stock" means the Company's 10% Series F Convertible
Preferred Stock, $.01 par value, together with all shares of Common Stock issued
upon conversion of such shares.
"Series F Preferred Stock Purchase Agreement" as defined in the
recitals hereto.
"Series G Preferred Stock" means the Company's 10% Series G Convertible
Preferred Stock, $.01 par value, together with all shares of Common Stock issued
upon conversion of such shares.
"Series H Director" means the one director entitled to be nominated to
serve by the holders of Series H Preferred Stock, voting as a class, pursuant to
the provisions of Section 10 of the Certificate of Designation filed with the
Delaware Secretary of State on June 21,1999.
"Series H Preferred Stock" means the Company's 10% Series H Convertible
Preferred Stock, $.01 par value, together with all shares of Common Stock issued
upon conversion of such shares.
"Series K Preferred Stock" means the Company's 10% Series K Convertible
Preferred Stock, $.01 par value, together with all shares of Common Stock issued
upon conversion of such shares.
"Series K Director" means the one director entitled to be nominated to
serve by the holders of Series K Preferred Stock, voting as a class, pursuant to
the provisions of Section 11 of the Certificate of Designation filed with the
Delaware Secretary of State on December 13, 1999.
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"Shares" as defined in the recitals hereto; provided, however, that as
to any particular securities of the Company, such shall cease to be "Shares"
hereunder, when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act, and such
securities shall have been disposed of under such registration statement, (ii)
they shall have been distributed to the public pursuant to Rule 144 under the
Securities Act in accordance with the terms hereof or (iii) they shall have
ceased to be outstanding.
"▇▇▇▇▇▇▇▇ Employment Period" means the "Employment Period," as defined
in that certain Executive Employment Agreement, effective as of March 1, 1998,
between the Company and ▇▇▇▇▇▇▇▇, as in effect on the Closing Date or thereafter
amended with the consent of the Investors Committee or, after a Qualified Public
Offering, as provided in Section 30 of this Agreement.
"Stockholder" means any Person who is a party to this Agreement or is a
successor or assign thereof contemplated by Section 14 below.
"Triggering Put Notice" as defined in Section 8(a).
"Voting Stock" of any Person means securities of any class or classes
of such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to elect or vote for the election of the directors of
such Person.
"▇▇▇▇▇▇-▇▇▇▇▇▇ Permitted Transferees" means (i) any Person that is a
direct or indirect partner of ▇▇▇▇▇▇-▇▇▇▇▇▇, (ii) any Person that is a direct or
indirect member of any limited liability company or direct or indirect
stockholder of any corporation that is in turn a partner of ▇▇▇▇▇▇-▇▇▇▇▇▇, and
(iii) any Affiliate of ▇▇▇▇▇▇-▇▇▇▇▇▇ or any person or entity described in
clauses (i) or (ii) above.
"Warrants" means (i) the warrants to purchase 860,000 shares of Common
Stock (subject to adjustment as provided therein) issued to the Series F
Purchasers pursuant to the terms of the Series F Stock Purchase Agreement (the
"Series F Warrants"), and (ii) the warrant to purchase 50,000 shares of Common
Stock (subject to adjustment as provided therein) issued to GE Capital pursuant
an Agreement to Issue Warrant, dated June 15, 1998, between the Company and GE
Capital (the "GE Warrant").
2. Board of Directors.
(a) From and after the date of this Agreement and until the
provisions of this Section 2 cease to be effective, each Stockholder shall vote
or cause to be voted all Voting Stock and any other voting securities of the
Company over which such Stockholder has Beneficial Ownership or voting control
and shall take all other necessary or desirable actions within its control
(whether in its capacity as a stockholder, director, member of a committee of
the Board of Directors or officer of the Company or otherwise, and including,
without limitation, attendance at meetings in person
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or by proxy for purposes of obtaining a quorum and execution of written consents
in lieu of meetings), and the Company shall take all necessary and desirable
actions within its control (including, without limitation, calling special board
and stockholder meetings), so that:
(i) the number of directors constituting the members of the
Board of Directors of the Company (the "Board") shall be nine, up to seven of
whom shall be the persons entitled to be designated to serve on the Board in
accordance with the provisions of Section 2(a)(ii) below;
(ii) the following persons shall at all times constitute
members of the Board and shall be elected to the Board at each annual meeting of
the Stockholders of the Company:
(1) ▇▇▇▇▇▇, during the ▇▇▇▇▇▇ Employment Period;
(2) ▇▇▇▇▇▇▇▇, during the ▇▇▇▇▇▇▇▇ Employment Period;
(3) two persons designated by ▇▇▇▇▇▇-▇▇▇▇▇▇, who
initially shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (and who shall
also be the "Series F Directors" while there is outstanding Series F Preferred
Stock);
(4) one person designated by Blue ▇▇▇▇ ▇▇, who shall
initially be ▇▇▇▇ ▇. ▇▇▇▇▇ (and who shall also be the "Series C Director" while
there is outstanding Series C Preferred Stock);
(5) one person designated by Mesirow Capital Partners
VII and its Affiliates, who shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. (and who
shall also be the "Series K Director" while there is outstanding Series K
Preferred Stock); and
(6) one person designated by ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇,
L.L.C. and its Affiliates, who shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (and who
shall also be the "Series H Director" while there is outstanding Series H
Preferred Stock);
provided, however, that the designation of persons pursuant to (3) through (6)
above, may only be made if the Stockholder making the designation and its
Affiliates (including, in the case of ▇▇▇▇▇▇-▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the
other ▇▇▇▇▇▇-▇▇▇▇▇▇ Permitted Transferees) Beneficially Own at least 2.5% of the
outstanding Voting Stock of the Company at the time of each such designation.
(iii) the removal from the Board (with or without cause) of
any representative designated hereunder by any person or group of persons at any
time while such person or group shall be entitled to serve on, or designate a
representative to serve on, the Board under clause (ii) above, shall only be at
such person's or group's written request (and at times when the person or
representative is not entitled to so serve on or to be designated to serve on
the Board, such
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person or representative may be removed, with or without cause, by vote of the
Board or the Stockholders, or if requested by the Investors Committee (or, after
the consummation of a Qualified Public Offering, if requested by the Executive
Committee or the Board as provided in Section 30 of this Agreement), shall
resign immediately); and
(iv) if any representative designated hereunder by
any person or group for any reason ceases to serve as a member of the Board
during his term of office at any time while such person or group shall be
entitled to serve on, or designate a representative to serve on, the Board under
clause (ii) above, the resulting vacancy on the Board shall be filled by a
representative designated by such person or group, as provided hereunder.
(b) The Company shall pay the reasonable out-of-pocket
expenses incurred by each director in connection with his duties as a director,
including, without limitation, attending the meetings of the Board and any
committee thereof.
(c) Each of GE Capital, and BMO shall have the right, so long
as it Beneficially Owns at least 50% of the Shares owned by it as of June 15,
1998 (computed on an "as converted basis" and including, in the case of GE
Capital, Shares issuable upon the exercise of outstanding warrants) to have a
non-voting observer present at each meeting of the Board. In addition, during
the period commencing on the Closing Date and ending on the last day of any
period during which Prudential is prohibited from selling any shares of Series K
Preferred Stock, or the Common Stock into which it is convertible, pursuant to
any applicable lock-up period (whether arising out of contract or otherwise) in
effect on the closing of the first issuance by the Company of equity securities
which is a "Qualified Public Offering", Prudential shall have the right to have
a non-voting observer present at each meeting of the Board; provided, that in no
event shall this right extend beyond the first anniversary of the closing of the
Qualified Public Offering. The Company shall pay the reasonable out-of-pocket
expenses incurred by each non-voting observer in connection with his or her
attendance at Board meetings.
(d) If any party fails to designate a representative to fill a
directorship for more than 30 days after being requested to do so in writing by
the President of the Company or if a party is no longer entitled to serve or to
designate a person to serve as a director as provided in this Section 2, the
resulting vacancy may be filled by the Board or the Stockholders as provided in
the By-Laws.
3. Conflicting Agreements. Each Stockholder represents that he has not
granted and is not a party to any proxy, voting trust or other agreement which
is inconsistent with or conflicts with the provisions of this Agreement, and no
Stockholder shall grant any proxy or become party to any voting trust or other
agreement which is inconsistent with or conflicts with the provisions of this
Agreement. No Stockholder shall act, for any reason, as a member of a group or
in concert or enter into any agreement or arrangement with any other person in
connection with the acquisition, disposition or voting of Shares in any manner
which is inconsistent with the provisions of this Agreement. Without limitation,
GE Capital hereby agrees that the provisions of Section 11(f) of the
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Series B Preferred Stock Purchase Agreement relating to certain redemption
obligations of the Company are null and void and of no further force or effect
and Blue ▇▇▇▇ ▇▇ and Miami Valley agree that the provisions of paragraphs 3
through 6 of the Redemption and Warrant Agreement are null and void and of no
further force or effect, and no warrants have been issued or are issuable by the
Company thereunder. In addition, the Company and each Stockholder shall, from
time to time, grant such waivers and execute such consents, proxies or other
instruments, and make such filings with and seek such consents and approvals
from governmental authorities or other Persons, as may be necessary to give
effect to or carry out the provisions of this Agreement.
4. Certificate of Incorporation and Bylaws. The certificate of
incorporation and bylaws of the Company may be amended in any manner permitted
thereunder, except that neither the certificate nor the bylaws shall be amended
in any manner that would conflict with, or be inconsistent with, the provisions
of this Agreement.
5. Actions Consistent with Agreement. The Company shall not circumvent
this Agreement by taking any action through a subsidiary or affiliate that would
be prohibited under this Agreement.
6. Investors Committee Approval. The Company and each Stockholder
hereby covenants and agrees that, prior to the closing of a Qualified Public
Offering, the Company shall not take or permit to occur, and the Stockholders
shall not consent to, approve, or vote for any of the events or actions
described in subsection 6(b) unless such events or actions have been approved in
advance, in writing, by a majority of the total number of members of an
"Investors Committee," as defined in subsection 6(a):
(a) Investors Committee. The Investors Committee shall consist
of the following individuals:
(i) two persons designated by ▇▇▇▇▇▇-▇▇▇▇▇▇, who
initially shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇;
(ii) one person designated by Blue ▇▇▇▇ ▇▇, who shall
initially be ▇▇▇▇ ▇. ▇▇▇▇▇;
(iii) one person designated by Mesirow Capital
Partners VII, who shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.; and
(iv) one person designated by ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇,
L.L.C., who shall intially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇;
provided, however, that a Stockholder shall lose the right to designate a member
of the Investors Committee, and any member designated by it then serving on the
Investors Committee shall
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immediately resign, at such time as such Stockholder and its Affiliates
(including, in the case of ▇▇▇▇▇▇-▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the other
▇▇▇▇▇▇-▇▇▇▇▇▇ Permitted Transferees) Beneficially Own less than 2.5% of the
Voting Stock of the Company.
(b) Actions Requiring Approval of Investors Committee. The
following actions shall require approval of a majority of the total number of
members of the Investors Committee:
(i) any merger or consolidation of the Company with
any other entity, and any merger or consolidation of any subsidiary of the
Company with any other entity other than the Company or another wholly-owned
subsidiary of the Company;
(ii) the purchase or lease by the Company or any
subsidiary thereof of any business or assets, other than the purchase or lease
of assets in the ordinary course of business (it being understood, however, that
the purchase or lease of any radio broadcasting station or Federal
Communications Commission ("FCC") license is not a purchase or lease in the
ordinary course), or the execution of any agreement providing for the purchase,
lease, construction or management of or in respect of radio broadcasting
stations (including time brokerage agreements and local marketing agreements and
the like);
(iii) the sale of any assets of the Company or any
subsidiary thereof, or the execution of any agreement in respect thereof (other
than the sale of advertising time and excess or obsolete furniture, fixtures or
equipment in the ordinary course of business);
(iv) the issuance or sale of any equity or debt
securities of the Company or any subsidiary thereof or any rights to acquire any
of such equity or debt securities (including options and warrants) or the
issuance or sale of stock appreciation or other "phantom" stock rights, other
than Permitted Issuances, or the execution of any agreements in respect thereof;
(v) the incurrence or assumption of any Indebtedness
by the Company or any Subsidiary thereof, other than Permitted Indebtedness;
(vi) any Change of Control;
(vii) any amendment to the Company's 1998 Management
Stock Option Plan or the adoption of any other stock option, stock purchase or
restricted stock or stock appreciation right plan;
(viii) any amendment to the Amended and Restated
Charter or to the by-laws of the Company and any amendment to this Agreement or
the Registration Rights Agreement dated as of June 15, 1998, as amended (the
"Registration Rights Agreement");
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(ix) the execution by the Company or any Stockholder
of any voting, voting trust, registration rights or stockholders' agreements
with respect to the Company or any of its shares of capital stock (other than
this Agreement and the Registration Rights Agreement); and
(x) the execution by the Company of any contract or
agreement for the construction or management of radio stations.
Subject to compliance by the Company and the other Stockholders with the
provisions of the final two sentences of this paragraph, the Investors Committee
agrees that, upon receipt by the Company of an opinion of counsel reasonably
acceptable to the Investors Committee, that the exercise of one or more of its
rights under this Section 6 is reasonably likely to constitute a transfer of
control by the Company within the meaning of the Communications Act of 1934, as
amended (the "Communications Act") or the rules and regulations of the FCC
thereunder (a "Transfer Opinion"), the Investors Committee shall forbear from
exercising such rights until such time as the FCC has (a) agreed that such
exercise would not constitute a transfer of control or (b) given its consent to
such transfer of control (either event hereinafter referred to as "FCC
Approval"). In the event that the Company receives a Transfer Opinion, the
Company and the other Stockholders shall promptly take such actions, or cause
such actions to be taken, that may be necessary or desirable to obtain FCC
Approval, including, without limitation, the execution and delivery of all
applications, certificates, instruments and other documents that may be
requested by the FCC or the Investors Committee in connection with obtaining FCC
Approval, and the filing of petitions for rehearing, reconsideration and/or
judicial review, all at the cost and expense of the Company. The Company and the
other Stockholders each hereby further agrees that, at all times during the
period in which the Investors Committee is required to forbear from exercising
its rights under this Section 6, each will take all actions necessary to prevent
the occurrence of any of the events set forth in subsection 6(b) above.
7. Creation and Powers of the Executive Committee. Effective upon
completion of a Qualified Public Offering, there shall be created by the Board
of the Company a five-member executive committee of Directors (the "Executive
Committee"), which shall initially consist of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. The
members of the Executive Committee shall at all times consist of the persons
designated to serve as directors pursuant to clauses (3) through (6) of Section
2(a)(ii) above, and each Stockholder shall take all necessary and desirable
actions within its control so that the Executive Committee shall be so
constituted. The Executive Committee shall have the power, in accordance with
applicable Delaware law, to review and make recommendations to the Board
regarding:
(a) the purchase or lease by the Company or any subsidiary
thereof of any business or assets, other than the purchase or lease of assets in
the ordinary course of business (it being understood, however, that the purchase
or lease of any radio broadcasting station or FCC license is not a purchase or
lease in the ordinary course), or the execution of any agreement providing for
the purchase, lease, construction or management of or in respect of radio
broadcasting stations (including time brokerage agreements and local marketing
agreements and the like);
-12-
13
(b) the sale of any assets (other than substantially all) of
the Company or any subsidiary thereof, or the execution of any agreement in
respect thereof (other than the sale of advertising time and excess or obsolete
furniture, fixtures or equipment in the ordinary course of business);
(c) the issuance or sale of any equity or debt securities of
the Company or any subsidiary thereof or any rights to acquire any of such
equity or debt securities (including options and warrants) or the issuance or
sale of stock appreciation or other "phantom" stock rights, other than Permitted
Issuances, or the execution of any agreements in respect thereof;
(d) the incurrence or assumption of any Indebtedness by the
Company or any Subsidiary thereof, other than Permitted Indebtedness and;
(e) by-law amendments to the extent they relate to the
Executive Committee or its power or authority.
A recommendation by the Executive Committee that the Board approve or reject any
such action shall be made by the vote of a majority of the total members of the
Executive Committee. In the event that the Executive Committee votes to
recommend any such action, the Board may approve or reject such action by a vote
of the majority of the voting directors (assuming that a quorum is present). In
the event the Executive Committee votes not to recommend any such action or,
within 10 business days after the matter has referred to it in writing by the
Chairman of the Board or the President, fails to provide any recommendation or
if the Board has determined to act on any matter described in this Section 7
without first seeking the recommendation of the Executive Committee with respect
thereto, the Board may only approve such action or matter with the affirmative
vote of no less than two-thirds of the total number of Directors.
The existence of the Executive Committee and the provisions regarding its rights
and duties shall terminate on the earlier of the third anniversary of the
creation thereof or on the affirmative vote of three-fourths of the total number
of Directors. In addition, neither the power or authority of nor the manner in
which the Executive Committee shall act in respect of or approve matters shall
be modified, or any by-law relating to the Executive Committee shall be amended
or modified, unless approved by at least three-fourths (3/4) of the total number
of Directors.
8. Put Rights.
(a) At any time after June 15, 2003, ▇▇▇▇▇▇-▇▇▇▇▇▇ shall have
the right to send a written notice to the Company (the "Triggering Put Notice"),
advising the Company that ▇▇▇▇▇▇-▇▇▇▇▇▇ and the Affiliates of ▇▇▇▇▇▇-▇▇▇▇▇▇
named in such Triggering Put Notice require the Company to purchase all of the
Eligible Put Shares Beneficially Owned by such parties pursuant to the
provisions of this Section 8. The Triggering Put Notice shall specify the place
and date for the
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closing (the "Put Closing") of the purchase of Shares by the Company, which
shall be no less than 90 days after the date of the Triggering Put Notice.
(b) The Company shall send a copy of the Triggering Put Notice
to each of the other Stockholders within 5 days of the receipt thereof by the
Company, and each such Stockholder shall have a period of twenty (20) days from
the date of the Triggering Put Notice to send a written notice to the Company
(each, an "Additional Put Notice") advising the Company that such Stockholder
(each Stockholder delivering an Additional Put Notice, an "Additional Put
Stockholder") desires the Company to purchase all of the Eligible Put Shares
Beneficially Owned by such Stockholder, such purchases to occur at the Put
Closing.
(c) The Triggering Put Notice and each Additional Put Notice
shall specify the exact number and class of Eligible Put Shares which the
Stockholder transmitting the same shall desire the Company to purchase, (which
shall constitute all of the Eligible Put Shares Beneficially Owned by such
Stockholders), including all Warrants held by the Stockholder (the Eligible Put
Shares to be so purchased by the Company are hereinafter referred to as the "Put
Shares").
(d) (i) If an Agreed Value has been determined and the Put
Closing does not occur in connection with or following the sale of all or
substantially all of the assets of the Company, the purchase price to be paid by
the Company for each Put Share shall be as follows:
(1) the purchase price for each Put Share which
constitutes a share of Preferred Stock shall equal the sum of the accrued and
unpaid dividends in respect of such share of Preferred Stock through the date of
the Put Closing and the greater of (x) the liquidation preference in respect of
such share of Preferred Stock (excluding accrued and unpaid dividends) and (y)
the Common Stock Value of the number of shares of Common Stock into which a
share of Preferred Stock may be converted as of the date of the Triggering Put
Notice;
(2) the purchase price for a Warrant shall equal the
Common Stock Value minus the exercise price per share of Common Stock payable
upon exercise of such Warrant, times the number of whole shares of Common Stock
issuable upon the exercise of such Warrant; and
(3) the purchase price for each Put Share which
constitutes a share of Common Stock shall equal the Common Stock Value thereof
computed under (A), (B) or (C) below, as applicable.
(A) The "Common Stock Value" of a share of
Common Stock will equal the amount that would be distributed to a holder of a
share of Common Stock if the Company were liquidated following the sale by the
Company of all of its assets for an amount equal to the Agreed Value of the
Company, assuming that no preferred stock is converted and no options or
warrants have been exercised, and following (i) the payment by the Company of
all accrued and
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unpaid dividends in respect of all outstanding preferred stock of the Company as
of the date the Agreed Value is determined, and (ii) the amount of all other
liquidating distributions that would be payable in respect of outstanding
preferred stock upon liquidation thereof.
(B) In the event the Common Stock Value
computed pursuant to clause (A) above is greater than the Stated Value (as
defined in the Certificate of Incorporation of the Company) of any class of
preferred stock, or is twice the Stated Value of the Series B Preferred Stock,
then the Common Stock Value shall be recomputed assuming that all preferred
stock with a Stated Value which is lower than the Common Stock Value (or
one-half the Common Stock Value, in the case of the Class B Preferred Stock) has
been converted (such preferred stock shall be referred to as being
"in-the-money"). Such recomputed value shall be equal to the amount that would
be distributed to a holder of a share of Common Stock if the Company were
liquidated following the sale by the Company of all of its assets for an amount
equal to the Agreed Value of the Company, and following (i) the payment by the
Company of all accrued and unpaid dividends in respect of all outstanding
preferred stock of the Company (including "in-the-money" Preferred Stock) as of
the date the Agreed Value is determined, and (ii) the amount of all other
liquidating distributions that would be payable in respect of such outstanding
preferred stock that is not "in-the-money" upon liquidation thereof.
(C) In the event the Common Stock Value
determined pursuant to clause (A) above, or, if applicable, clause (B) above, is
greater than the exercise price of any outstanding options or warrants, then the
Common Stock Value shall be recomputed assuming that all outstanding options or
warrants with an exercise price which is lower than the Common Stock Value have
been exercised immediately prior to such liquidating distribution and that the
purchase price paid upon any such exercise was available to the Company for
distribution in liquidation.
(ii) If an Agreed Value has not been determined or if
the Put Closing is to occur in connection with or following the sale of all or
substantially all of the assets of the Company, the purchase price for the Put
Shares shall equal the amount distributable in respect thereof under the Amended
and Restated Charter in connection with the liquidation and dissolution of the
Company following the sale of all or substantially all of its assets.
(iii) The Company will notify each Stockholder in
writing of the determination of Agreed Value promptly after the determination
thereof.
(e) The purchase price for the Put Shares shall be payable in
full at the Put Closing, by wire transfer of immediately available funds to such
accounts as shall be designated by the respective Stockholders, or in such other
form of consideration as shall be acceptable to ▇▇▇▇▇▇-▇▇▇▇▇▇. Subject to the
provisions of Section 8(f) below, the Put Closing shall occur on the date
designated by ▇▇▇▇▇▇-▇▇▇▇▇▇ in the Triggering Put Notice. Subject to the
provisions of Section 8(f) below, the Company shall be obligated to purchase all
of the Put Shares on such closing date, and
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simultaneously with such purchase the Company shall (to the extent such are not
among the Put Shares) pay all accrued and unpaid dividends on the outstanding
Series B Preferred Stock.
(f) The date of the Put Closing shall be postponed in the
following circumstances: (i) if the Company and ▇▇▇▇▇▇-▇▇▇▇▇▇ are unable to
agree upon the Agreed Value of the Company within 90 days of the date of the
Triggering Put Notice (in which case the Board shall promptly proceed to sell
the Company, and the Put Closing shall be held on such date or dates as shall be
selected by ▇▇▇▇▇▇-▇▇▇▇▇▇, no later than the day following the date that the
Company shall have been sold (whether pursuant to a merger, a sale of all or
substantially all of its capital stock, assets or otherwise), or (ii) if, within
10 days after an Agreed Value has been determined, the Company shall send a
written notice to ▇▇▇▇▇▇-▇▇▇▇▇▇ and the Additional Put Stockholders advising
such parties that (x) the Company believes that it will be necessary for the
Company to be sold (whether pursuant to a merger, a sale of all or substantially
all of its capital stock, assets or otherwise) to pay the purchase price for the
Put Shares, or (y) the Company will seek to pay the purchase price for the Put
Shares out of the proceeds of a Qualified Financing. Any notice sent pursuant to
this Section 8(f) shall be approved by the Board (excluding ▇▇▇▇▇▇-▇▇▇▇▇▇'▇ and
the Additional Put Stockholders' nominees to the Board).
(g) (i) If the date of the Put Closing shall have been
postponed pursuant to notice from the Company pursuant to Section 8(f)(ii)(y)
above, then the Company shall be obligated to take such steps as are necessary
to cause a Qualified Financing to be consummated within 3 months of the date of
the notice given under Section 8(f)(ii)(y), and within one business day after
the consummation of a Qualified Financing, the Company shall have used the net
available proceeds therefrom to pay the full purchase price for the Put Shares
and to pay all accrued and unpaid dividends on the outstanding Series B
Preferred Stock as required pursuant to the last sentence of Section 8(e).
(ii) As used herein, a Qualified Financing shall mean
a debt or equity financing, the net proceeds of which are sufficient (after
repayment of any Indebtedness required to be repaid in connection therewith) to
pay the purchase price of the Put Shares in full.
(h) In all other circumstances where the date of the Put
Closing shall have been postponed pursuant to Section 8(f) above, the Company
shall be obligated to take the following steps within the time periods specified
below:
(i) within 4 months after the date of the Triggering
Put Notice, the Company shall have engaged a broker to market, solicit bids and
the form of bids to be solicited for and otherwise facilitate the sale of the
Company, whether by way of merger of the Company with any other Person, by way
of a single sale of all or substantially all of the capital stock or assets of
the Company, or as separate sales of one or more of the Company's radio stations
(every such transaction, a "sale transaction"), such broker to be experienced in
the marketing and sale of radio stations, and such broker, the terms of its
engagement and the form of bids to be solicited and the
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structure of the transaction to be reasonably acceptable to ▇▇▇▇▇▇-▇▇▇▇▇▇, and
the broker and the Company shall have prepared an offering memorandum for the
sale of the Company (which offering memorandum shall specify the date that bids
must be received) and shall have distributed such offering memorandum to all
Persons who are reasonably likely to have a bona fide interest in engaging (and
the financial capacity to engage) in such sale transaction or transactions (as
reasonably determined by the broker and ▇▇▇▇▇▇-▇▇▇▇▇▇);
(ii) within 6 months after the date of the Triggering
Put Notice, the Company shall have received any and all bids from potential
buyers, shall have sent copies of all such bids to ▇▇▇▇▇▇-▇▇▇▇▇▇, and, unless
otherwise consented to by ▇▇▇▇▇▇-▇▇▇▇▇▇, shall have closed the solicitation for
bids, and, if such solicitation for bids is closed, the Company shall have
received at least one (or one set, in the case of bids for less than all of its
radio stations) covering all or substantially all of its assets or capital
stock;
(iii) within 8 months after the date of the
Triggering Put Notice, the Company shall have entered into one or more Qualified
Purchase and Sale Agreements for the sale of the Company or all or substantially
all of its assets. A "Qualified Purchase and Sale Agreement" shall mean one or
more purchase and sale agreements, duly executed by one or more financially
responsible purchasers, reasonably acceptable to ▇▇▇▇▇▇-▇▇▇▇▇▇, providing for
the purchase of the Company or one or more radio stations in a sale transaction
for an aggregate purchase price, payable in full in cash or in such other form
of consideration as shall be acceptable to ▇▇▇▇▇▇-▇▇▇▇▇▇ at closing, and which
provides for a final "drop dead" date for closing, including all extensions for
transfer approvals, of no later than four months after the date of execution
thereof, and which provides no financing contingency therein for the benefit of
the purchaser and is otherwise in form and substance acceptable to
▇▇▇▇▇▇-▇▇▇▇▇▇; and
(iv) within one business day after the closing of
Qualified Purchase and Sale Agreements for the Company or all or substantially
all of the Company's radio stations, the Company shall have used the net
available proceeds therefrom to purchase all of the Put Shares.
(i) ▇▇▇▇▇▇-▇▇▇▇▇▇ shall have the right, by written notice to
the Company and each other Additional Put Stockholder (the "Rescission Notice"),
to rescind the Triggering Put Notice and all Additional Put Notices (and upon
the giving of such Rescission Notice in accordance with the terms hereof, the
Triggering Put Notice and each Additional Put Notice shall automatically be null
and void and of no further force or effect), provided, however, that the
Rescission Notice may not be given at any time (x) while the Company is a party
to a binding agreement in respect of or after the Company has consummated a
Qualified Financing, or (y) while the Company is a party to a binding Qualified
Purchase and Sale Agreement(s) or has consummated transactions pursuant thereto
providing for aggregate consideration to the Company equal to more than $25
million. If a Rescission Notice is given, ▇▇▇▇▇▇-▇▇▇▇▇▇ shall have the right at
any time after the expiration of 12 months from the date of the Rescission
Notice to again invoke the provisions of this Section 8, and the Stockholders
shall have the right to give Additional Put Notices in respect thereof.
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(j) If the Company shall fail to take any of the actions set
forth above within the time frames required or shall otherwise default in any of
its obligations under this Section 8, and such action shall not be taken or such
default shall not be cured to the satisfaction of ▇▇▇▇▇▇-▇▇▇▇▇▇, within 15 days
of the date of any written notice from ▇▇▇▇▇▇-▇▇▇▇▇▇ to the Company with respect
thereto, such shall be deemed a "Put Default." During the continuation of a Put
Default, ▇▇▇▇▇▇-▇▇▇▇▇▇ may require the Company and the other Stockholders to
elect such additional designees of ▇▇▇▇▇▇-▇▇▇▇▇▇ to the Board such that, after
giving effect thereto, the designees of ▇▇▇▇▇▇-▇▇▇▇▇▇ elected to the Board
pursuant to the provisions of Section 2(a)(ii)(4) above and this Section 8(j)
shall constitute a majority of the members of the Board. Without limitation, to
the extent then required under applicable law, the Company shall, if so
requested by ▇▇▇▇▇▇-▇▇▇▇▇▇, make such filings with the Federal Communications
Commission and/or the Securities and Exchange Commission and mail such materials
to its Stockholders as shall be necessary to enable ▇▇▇▇▇▇-▇▇▇▇▇▇ to designate a
majority of the members of the Board, and the Stockholders shall vote their
shares of Voting Stock in such manner as shall be necessary to give effect to
the foregoing. It is expressly agreed that the designees of ▇▇▇▇▇▇-▇▇▇▇▇▇ on the
Board shall be empowered to take such action as shall be necessary or
appropriate to cause the Put Closing to occur as soon as possible, including
causing a sale of all or substantially all of the assets of the Company, or
alternatively to effect a sale of the Company or a merger by the Company with
another entity.
(k) In no event shall the Company be required to consummate
any sale pursuant to this Section 8 which would require repayment of any
outstanding indebtedness of the Company unless (i) such indebtedness of the
Company is repaid on the date of consummation of such sale, (ii) the holders of
the indebtedness required to be repaid out of the proceeds of any such sale
consent to such sale, or (iii) the purchaser agrees to assume all such
indebtedness not being repaid, in accordance with the terms of the agreements
governing such indebtedness, and no default or event of default under such
agreements results from such assumption.
9. Disposition of Shares. No Management Stockholder shall transfer,
sell, convey, exchange, pledge or otherwise dispose of ("Transfer") any Shares
of the Company except in connection with a sale of all or substantially all of
the outstanding stock of the Company or a merger of the Company with another
Person. Notwithstanding the foregoing, a Management Stockholder shall be
entitled to effect any of the following transfers (each an "Exempt Transfer"):
(i) Transfers by a Management Stockholder to an entity wholly owned by him at
all times following such Transfer; (ii) Transfers pursuant to applicable laws of
descent and distribution to members of such Management Stockholder's Immediate
Family, or Transfers during the lifetime of such Management Stockholder to such
Management Stockholder's spouse, adult children or to a trust whose
beneficiaries are members of such Management Stockholder's Immediate Family,
(iii) Transfers approved by a majority of the Board of the Company (which shall
include a majority of the members of the Investors Committee), (iv) prior to a
Qualified Public Offering, Transfers of a number of Shares up to the "Maximum
Amount" (as defined below), computed cumulatively for all Transfers made under
this clause (iv) from and after the date hereof, and (v) following a Qualified
Public
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Offering, the greater of the Maximum Amount or 25% of the sum of (1) the number
of shares of Common Stock that such Management Stockholder would have owned as
of such date had he not effected any Transfers prior to such date and (2) the
number of shares of Common Stock issuable on conversion of Series A Preferred
Stock that such Management Stockholder would have owned as of such date had he
not effected any Transfers prior to such date, but excluding any shares of
Common Stock issuable on exercise of any options or warrants held by such
Management Stockholder on such date (the sum of (1) and (2) being such
Management Stockholder's "Holdings"), computed cumulatively for all Transfers
made under this clause (v) from and after the date hereof; provided that, in the
case of Exempt Transfers of the types referenced in clauses (i) and (ii) above,
the restrictions contained in this Section 9 will continue to be applicable to
Shares and the transferee of such Shares must have agreed in writing to be bound
by the terms and conditions of this Agreement applicable to the Stockholder. For
purposes hereof, the "Maximum Amount" shall be equal to such Management
Stockholder's Holdings, multiplied by a fraction, the numerator of which shall
be the number of shares of Common Stock (computed on an as-converted and
fully-diluted basis) sold or otherwise disposed of by ▇▇▇▇▇▇-▇▇▇▇▇▇ (other than
to ▇▇▇▇▇▇-▇▇▇▇▇▇ Permitted Transferees) since the date hereof, and the
denominator of which shall be the number of shares of Common Stock (computed on
an as-converted and fully-diluted basis but excluding any shares of Common Stock
that may become issuable on exercise of a Series F Warrant) that would have been
held by ▇▇▇▇▇▇-▇▇▇▇▇▇ on the date of such Transfer, if ▇▇▇▇▇▇-▇▇▇▇▇▇ had not
previously sold or otherwise disposed of any Shares. The foregoing shall not
apply to or prevent the exercise by a Management Stockholder of the options
granted to him under the 1998 Management Stock Option Plan on a "cashless" or
net basis.
10. Sale of the Company.
(a) If a majority of the Board and the Investors Committee and
Stockholders Beneficially Owning a majority of the Voting Stock, approve a sale
of all or substantially all of the assets or capital stock of the Company (the
"Approved Sale"), then each Stockholder shall vote for, consent to and raise no
objections against such Approved Sale. If the Approved Sale is structured as (i)
a merger or consolidation, each Stockholder shall waive any dissenters rights,
appraisal rights or similar rights such holder may have in connection with such
merger or consolidation or (ii) a sale of stock, each shall agree to sell all of
his Shares and rights to acquire Shares on the terms and conditions so approved.
Each Stockholder shall take all necessary or desirable actions in connection
with the consummation of the Approved Sale as reasonably requested by the
Company and ▇▇▇▇▇▇-▇▇▇▇▇▇.
(b) The obligations of the Stockholders with respect to an
Approved Sale are subject to the satisfaction of the following conditions: (i)
upon the consummation of the Approved Sale, each Stockholder holding the same
class of Shares shall receive the same form of consideration and the same amount
of consideration (based on the number of Shares held) and (ii) each holder of
then currently exercisable rights to acquire shares of Common Stock shall be
given an opportunity to do one of the following: (A) to exercise such rights
prior to the consummation of the Approved
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Sale, (B) to receive in exchange for such rights consideration equal to the
amount determined by multiplying (1) the same amount of consideration per share
of Common Stock received by holders of Common Stock in connection with the
Approved Sale less the exercise price per share of Common Stock of such rights
to acquire such Common Stock by (2) the number of shares of Common Stock
represented by such rights or (C) to receive in exchange for such rights, rights
to acquire shares of common stock of the surviving corporation under equivalent
terms through a tax-free exchange with the surviving corporation if the Approved
Sale is structured as a merger or consolidation which otherwise constitutes a
tax-free reorganization as to such Stockholder and such exchange does not
adversely affect the tax-free treatment of the Approved Sale.
(c) In no event shall the Company be required to consummate
any sale pursuant to this Section 10 which would require repayment of any
outstanding indebtedness of the Company unless (i) the net proceeds of such sale
would be sufficient to repay all of such indebtedness of the Company, (ii) the
holders of the indebtedness required to be repaid out of the proceeds of any
such sale consent to such sale, or (iii) the purchaser agrees to assume all such
indebtedness not being repaid, in accordance with the terms of the agreements
governing such indebtedness, and no default or event of default under such
agreements results from such assumption.
11. Tag-Along Right. In addition to the rights granted under Section 8
above, in the event that ▇▇▇▇▇▇-▇▇▇▇▇▇ and other Stockholders (including
▇▇▇▇▇▇-▇▇▇▇▇▇) Beneficially Owning more than fifty percent (50%) of the Common
Stock subject to this Agreement (each a "Selling Stockholder"), desire to
transfer, sell, convey, exchange or otherwise dispose of ("Transfer") any Shares
pursuant to a bona fide offer from a third party (the "Buyer"), then such
Selling Stockholders shall notify the Stockholders who are not Selling
Stockholders ("Tag-Along Stockholders"), in writing, of such offer and its terms
and conditions (the "Transfer Notice"). Upon receipt of such Transfer Notice,
each Tag-Along Stockholder shall have the right to sell to the Buyer, on the
same terms and conditions as the Selling Stockholders, that number of Shares of
the Company's capital stock subject to this Agreement equal to the product
attained by multiplying (a) the number of Shares held by the Tag-Along
Stockholder times (b) the quotient derived by dividing (i) the number of Shares
which otherwise would have been sold by the Selling Stockholders to the Buyer by
(ii) the total number of Shares held by such Selling Stockholders and the number
of Shares held by the Tag-Along Stockholders who have elected to participate in
such Transfer (assuming, in the case of sales of Common Stock of the Company,
full conversion of all shares of preferred stock of the Company held by the
Selling Stockholders and each Tag-Along Stockholder exercising its rights under
this Section 11). If more than one Tag-Along Stockholder elects to sell Shares
pursuant to this Section 11, they may do so pro rata based on the number of
Shares held by each of them or in such other proportions as they may agree. The
Tag-Along Stockholders' right to sell pursuant to this Section 11 can be
exercised by delivery of written notice to the Selling Stockholders within 10
business days following delivery of the Transfer Notice. Any Tag-Along
Stockholder who fails to notify the Selling Stockholders within such 10 business
days shall be deemed to have waived its rights under this Section 11.
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12. Drag-Along Right. In the event that ▇▇▇▇▇▇-▇▇▇▇▇▇ and other
Stockholders (including ▇▇▇▇▇▇-▇▇▇▇▇▇) Beneficially Owning more than fifty
percent (50%) of the Common Stock subject to this Agreement (each a
"Transferring Stockholder") wish to Transfer in a bona fide arms' length sale
all of the Shares held by the Transferring Stockholders to any person or persons
who are not Affiliates of the Transferring Stockholders (the "Proposed
Transferee"), the Transferring Stockholders shall have the right, subject to
applicable law and if approved by the Investors Committee, to require all the
remaining Stockholders to sell to the Proposed Transferee all of the Shares then
owned by such remaining Stockholders (including any warrants or options to
acquire capital stock of the Company). The amount and type of consideration to
be paid by the Proposed Transferee to the Transferring Stockholders and the
remaining Stockholders shall be the same (less, in the case of options or
warrants, the exercise price for such options or warrants, and in the case of
convertible preferred stock shall be based on the greater of the liquidation
preference thereof or on the amount that would be received if such preferred
stock were converted into Common Stock immediately prior to the closing of such
Transfer). In addition, the terms and conditions upon which the remaining
Stockholders shall Transfer their Shares shall be the same as those received by
Transferring Stockholders holding the same class of capital stock.
13. Subscription Right. If at any time the Company proposes to issue
equity securities of any kind (the term "equity securities" shall include for
these purposes any warrants, options or other rights to acquire equity
securities and debt securities convertible into equity securities) of the
Company and any Series F Purchaser is to be a purchaser thereof (other than the
issuance of equity securities (i) upon conversion of any preferred stock
pursuant to the Company's Certificate of Incorporation, (ii) to the public in a
firm commitment underwriting pursuant to a registration statement filed under
the Securities Act, (iii) pursuant to the acquisition of another Person by the
Company by merger, purchase of substantially all of the assets or outstanding
capital stock or other form of transaction, or (iv) pursuant to an employee
stock option plan, stock bonus plan, stock purchase plan or other management
equity program, then, as to each Stockholder, the Company shall: (i) give
written notice setting forth in reasonable detail (1) the designation and all of
the terms and provisions of the securities proposed to be issued (the "Proposed
Securities"), (2) the price and other terms of the proposed sale of such
securities, (3) the amount of such securities proposed to be issued and (4) such
other information as the Stockholder may reasonably request in order to evaluate
the proposed issuance; and (ii) offer to issue to each such Stockholder a
portion of the Proposed Securities equal to a percentage determined by dividing
(x) the number of shares of Common Stock Beneficially Owned by such Stockholder,
assuming conversion in full of any convertible securities held by such
Stockholder and exercise of any options or warrants held by such Stockholder, by
(y) the total number of shares of Common Stock then outstanding, including for
purposes of this calculation all shares of Common Stock issuable upon conversion
in full of any then outstanding convertible securities or upon exercise in full
of any outstanding options or warrants.
Each such Stockholder must exercise its purchase right hereunder within
10 days after receipt of such notice from the Company. If all of the Proposed
Securities offered to such Stockholder are not fully subscribed by such
Stockholder, the remaining Proposed Securities will not be reoffered
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to the Stockholders purchasing their full allotment. To the extent that the
Company offers two or more securities in units, Stockholders must purchase such
units as a whole and will not be given the opportunity to purchase only one of
the securities making up such unit.
Upon expiration of the offering period described above, the Company
will be free to sell such Proposed Securities that the Stockholders have not
elected to purchase during the 90 days following such expiration on terms and
conditions not more favorable to the purchasers thereof than offered to such
holders. Any Proposed Securities offered or sold by the Company to Persons
including a Series F Purchaser after such 90 day period must be reoffered to the
Stockholders pursuant to these terms.
14. Representations and Warranties.
(a) Each Stockholder represents and warrants the following
with respect to himself, herself or itself, as the case may be:
(i) Authorization. All corporate action on the part
of each Stockholder which is not an individual necessary for the authorization,
execution, delivery and performance by such Stockholder of this Agreement has
been taken. This Agreement is a legal, valid and binding Obligation of each
Stockholder, enforceable against such Stockholder in accordance with its terms.
(ii) No Violation. The execution and delivery of this
Agreement will not (with or without notice or passage of time or both) (a)
conflict with or result in a breach of any provision of the certificate of
incorporation or bylaws of a Stockholder which is not an individual, (b) result
in a default, give rise to any right of termination, cancellation or
acceleration, or require any consent or approval, under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, loan, factoring
arrangement, license, agreement, lease or other instrument or obligation to
which a Stockholder is a party or by which it or any of its assets may be bound,
or (c) violate any law, judgment, order, writ, injunction, decree, statute, rule
or regulation of any court, administrative agency, bureau, board, commission,
office, authority, department or other governmental entity applicable to such
Stockholder or any of its, his or her assets.
15. Termination of Certain Provisions. The provisions of Sections 6, 8,
10, 11, 12 and 13 of this Agreement will terminate upon the closing of a
Qualified Public Offering. In addition, this Agreement or any portion thereof,
may be terminated with the written agreement of the Company, a majority of the
total number of members of the Investors Committee or the Executive Committee,
as the case may be, and Stockholders beneficially owning more than 66 2/3% of
the Common Stock Beneficially Owned by all Stockholders. The provisions of
Section 2 of this Agreement will terminate upon the fifth anniversary of the
closing of a Qualified Public Offering. The provisions of Section 9 of this
Agreement will terminate upon the third anniversary of the closing of a
Qualified Public Offering.
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16. Voting. The Stockholders agree that GE Capital shall not vote its
shares of Series F Preferred Stock (or any shares of Common Stock issued on
conversion thereof) and that such shares will not be counted as shares of Series
F Preferred (or Common Stock, as the case may be) that are entitled to vote on
any matters except in respect of the following extraordinary events which are
submitted to the holders of the Preferred Stock of the Company for vote or
approval under the Amended and Restated Charter upon which GE Capital shall be
entitled to vote:
(a) any amendment to the Amended and Restated Charter;
(b) a sale of all or substantially all of the assets of the
Company;
(c) the dissolution, liquidation or termination of the
Company;
(d) any acquisition of, or merger of the Company with, another
corporation or other entity, whether or not the Company is a survivor of such
transaction;
(e) any change in the fundamental nature of the business of
the Company;
(f) any transaction with affiliates, except upon fair and
reasonable terms comparable to an arms-length transaction; and
(g) any change in the Company's capital structure in a manner
that dilutes the ownership interest of the holders of the Series F Preferred
Stock.
The provisions of this Section 16 shall remain in effect with respect to GE
Capital's shares of Series F Preferred Stock (and the shares of Common Stock
issued on conversion thereof) until the occurrence of either of the following:
(1) transfer of such Series F Preferred Stock (or the shares of Common Stock
issued on conversion thereof) to a third party unaffiliated with GE Capital or
(2) delivery to the Company of an opinion of counsel, in form reasonably
satisfactory to the Stockholders, to the effect that, as a result of (a) changes
in the ownership or attribution rules ("Rules") of the FCC or (b) changes in GE
Capital's circumstances, there is no longer a need or desire on the part of GE
Capital to insulate its ownership interest in the Series F Preferred Stock (or
the shares of Common Stock issued on conversion thereof) from attribution under
the FCC Rules.
17. Consent to Amendments; Waivers. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended or waived at
any time only by the written agreement of the Company, a majority of the total
number of members of the Investors Committee or the Executive Committee, as the
case may be, and Stockholders holding not less than 66 2/3% of the Common Stock
Beneficially Owned by all Stockholders. Any waiver, permit, consent or approval
of any kind or character on the part of any such holder of any provisions or
conditions of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in such writing.
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18. ▇▇▇▇▇▇-▇▇▇▇▇▇. The term ▇▇▇▇▇▇-▇▇▇▇▇▇, as used herein, shall mean
▇▇▇▇▇▇-▇▇▇▇▇▇ or any Permitted ▇▇▇▇▇▇-▇▇▇▇▇▇ Transferee to whom ▇▇▇▇▇▇-▇▇▇▇▇▇
has transferred any Shares; provided, however, that in the event ▇▇▇▇▇▇-▇▇▇▇▇▇
sells all or substantially all of its Shares to Persons other than Permitted
▇▇▇▇▇▇-▇▇▇▇▇▇ Transferees, then (i) the term "▇▇▇▇▇▇-▇▇▇▇▇▇," as used in Section
8 hereof (and in respect of defined terms used in said Section 8), shall refer
to any Stockholder or Stockholders Beneficially Owning more than 30% of the
Series F Preferred Stock then outstanding, and (ii) the term "▇▇▇▇▇▇-▇▇▇▇▇▇," as
used in any other Section of this Agreement (and in respect of defined terms
used therein), shall refer to any Stockholder or Stockholders Beneficially
Owning more than 50% of the Series F Preferred Stock then outstanding.
19. Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto, whether so expressed or
not, provided, that in the case of an assignment, such assignment shall be made
in conjunction with a Transfer of Shares, such assignment shall specifically
provide that the assignee shall assume all obligations of the assigning
Stockholder, and such assignee shall execute and deliver to the Company and the
other Stockholders a counterpart of this Agreement. Notwithstanding the
foregoing, no purchaser of Shares sold pursuant to an effective registration
statement filed by the Company or in an unsolicited open market transaction
effected pursuant to Rule 144 shall be subject to the provisions hereof or
deemed a Stockholder hereunder.
20. Legend on Certificates. All Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series F
Preferred Stock, Series G Preferred Stock, Series H Preferred Stock and Series K
Preferred Stock of the Company, and all Common Stock of the Company now or
hereafter owned by the parties to this Agreement, shall be subject to the
provisions of this Agreement and the certificates representing said shares shall
bear substantially the following legends (except that the certificate
representing the Series C Preferred Stock shall not bear the first legend set
forth below):
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
the securities laws of any State (the "Securities Laws").
These securities may not be offered, sold, transferred,
pledged or hypothecated in the absence of registration under
applicable Securities Laws, or the availability of an
exemption therefrom. This certificate will not be transferred
on the books of the Corporation or any transfer agent acting
on behalf of the Corporation except upon the receipt of an
opinion of counsel, satisfactory to the Corporation, that the
proposed transfer is exempt from the registration requirements
of all applicable Securities Laws, or the receipt of evidence,
satisfactory to the Corporation, that the
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proposed transfer is the subject of an effective registration
statement under all applicable Securities Laws."
"The Corporation is subject to restrictions contained in the
Federal Communications Act, as amended. The securities
evidenced by this certificate may not be sold, transferred,
assigned or hypothecated if, as a result thereof, the issuer
would be in violation of that act."
"The securities represented by this certificate are subject to
the terms of [that certain Second Amended and Restated
Stockholders' Agreement dated as of June 15, 1998, among
Regent Communications, Inc. and certain of its stockholders,
as the same may be amended from time to time.] or [that
certain Third Amended and Restated Stockholders' Agreement
dated as of December ___, 1999, among Regent Communications,
Inc. and certain of its stockholders, as the same may be
amended from time to time.]"
21. Severability. Whenever possible, each provision of this Agreement
will 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 will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
22. Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience of reference only and do not constitute a part of
and shall not be utilized in interpreting this Agreement.
23. Notices. Any notices required or permitted to be sent hereunder
shall be delivered personally or mailed, certified mail, return receipt
requested, or delivered by overnight courier service to the addresses shown on
the signature pages hereof, or such other address as any party hereto designates
by written notice to the Company, and shall be deemed to have been given upon
delivery, if delivered personally, three days after mailing, if mailed, or one
business day after delivery to the courier, if delivered by overnight courier
service.
24. Governing Law. All questions concerning the construction, validity,
and interpretation of this Agreement, and the performance of the obligations
imposed by this Agreement, shall be governed by the laws of the State of
Delaware.
25. Final Agreement. This Agreement constitutes the complete agreement
of the parties concerning the matters referred to herein.
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26. Execution in Counterparts. This Agreement may be executed in any
number of Counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one
instrument.
27. No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be used against any party.
28. Remedies. The parties hereto shall have all rights and remedies set
forth in this Agreement and all rights and remedies available under any
applicable law. The parties hereto agree and acknowledge that money may not be
an adequate remedy for any breach of the provisions of this Agreement and that
any party may, in its sole discretion, apply to any court of law or equity of
competent jurisdiction for specific performance or injunctive relief (without
posting bond or other security) in order to enforce, or prevent any violations
of, the provisions of this Agreement.
29. Certain Expenses. The Company agrees to pay all reasonable expenses
of the Stockholders having the right to designate members of the Investors
Committee or the Executive Committee, as the case may be (including reasonable
fees, charges and disbursements of its counsel) incurred in connection with (i)
any amendment, supplement, modification or waiver of or to any provisions of
this Agreement (including, without limitation, a response to a request by the
Company or any Stockholder for a consent to any action otherwise prohibited
hereunder), or consent to any departure by the Company or any Stockholder from,
the terms of any provision of this Agreement; and (ii) any matters arising
hereunder or in connection with or respect of any of the rights granted
hereunder. The Company shall also pay the reasonable legal fees and expenses of
counsel selected by the Investors Committee or the Executive Committee, as the
case may be, to assist such committees in the discharge of their duties and
obligations or to monitor or confirm the performance by the Company or any
Stockholder of or compliance by the Company or any Stockholder with all
agreements and covenants on its part to be performed or complied with or
incurred in connection with or in respect of any of the rights granted hereunder
to such committees. The Company shall also pay all costs and expenses incurred
in connection with or arising out of the purchase by it of the Put Shares.
30. ▇▇▇▇▇▇-▇▇▇▇▇▇ Consent. Whenever this Agreement shall require the
consent or approval of ▇▇▇▇▇▇-▇▇▇▇▇▇ to or in respect of any matter
("▇▇▇▇▇▇-▇▇▇▇▇▇ Consents"), such consent or approval may be given or withheld in
the sole discretion of ▇▇▇▇▇▇-▇▇▇▇▇▇ and, if given, must be evidenced by a
written instrument duly executed by or on behalf of ▇▇▇▇▇▇-▇▇▇▇▇▇ expressly
setting forth the specific matter approved or consented to. Following a
Qualified Public Offering, in those instances where this Agreement provides for
▇▇▇▇▇▇-▇▇▇▇▇▇ Consents, such consent, approval or agreement shall be made by the
Executive Committee (subject to the right of the Board, by a two-thirds vote, to
give such consent or approval in the event of a failure of the Executive
Committee to do so), or following the termination of the Executive Committee in
accordance with the provision thereof, by the Board.
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31. Automatic Amendment to Series G, Series H and Series K Preferred
Stock. In the event any of the terms of the Series F Preferred Stock (other than
amendments which provide the holders of the Series F Preferred Stock with
increased or additional voting or consent rights or board representation), as
set forth in the Amended and Restated Charter, are amended, the corresponding
terms of the Series G Preferred Stock, the Series H Preferred Stock and the
Series K Preferred Stock shall be similarly amended automatically and without
the necessity of a vote of the holders of the Series G Preferred Stock, Series H
Preferred Stock, or Series K Preferred Stock so as to keep the terms of the four
Series consistent (or, in the case of a change in the stated value or dividend
rate of the Series F Preferred Stock, to keep such corresponding terms of the
Series G Preferred Stock, the Series H Preferred Stock and the Series K
Preferred Stock proportionately similar), purchase and acceptance of delivery of
the Series G Preferred Stock and Series H Preferred Stock being deemed consent
to any such automatic amendment.
32. Conversion of Preferred Stock.
(a) Each Stockholder which/who has signed below, hereby agrees
that, upon the consummation of a Qualified Public Offering, each of their shares
of Series C, D, F, G, H and K of Preferred Stock shall be converted into a share
or shares or Common Stock in accordance with the applicable provision of the
Certificate of Incorporation or Designation relating to the applicable series of
Preferred Stock being converted.
(b) Each such party shall take such action as shall be
necessary to cause such conversion to occur. Notwithstanding the foregoing, a
Stockholder shall incur no obligation to convert unless the Stockholder is paid
all accumulated, accrued and unpaid dividends in respect of the shares of
Preferred Stock in the Company held by the Stockholder (whether or not declared
or otherwise payable as of such date of conversion), including any dividends on
such shares declared prior thereto if the Stockholder held such shares on the
record date fixed for the determination of holders entitled to receive payment
of such dividends.
(c) If conversion is required by the terms of this Section 32,
promptly after receipt of notice from the Company of the expected date of
consummation of a Qualified Public Offering, written notice of election to
convert shall be delivered to the Company by facsimile (606-292-0352) and by
overnight delivery of the original executed notice addressed to the Company at
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Any notice
of election to convert delivered to the Company prior to the completion of the
Qualified Public Offering shall not be effective unless and until the completion
of the Qualified Public Offering.
(d) Payment of dividends on the shares to be converted shall
be made by wire transfer of immediately available funds in accordance with
instructions provided by each Stockholder.
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(e) (i) If by December 20, 1999, all holders of Series F, G, H
and K have not executed counterparts of this Agreement or have not otherwise
irrevocably committed to convert their shares of such Preferred Stock on the
terms set forth herein, and if the Investors Committee so requests, a special
Stockholders meeting shall be called and held at which time all parties to this
Agreement, which or who have signed below, shall vote in favor of amending the
Certificate of Incorporation of the Company to change the conditions for
mandatory conversion as set forth within the Certificates of Designation of
Series B, D, F, G, H and K Preferred Stock as necessary to make such conditions,
so contained therein, conform to the definition of Qualified Public Offering set
forth in this Agreement.
(ii) If prior to the consummation of a Qualified
Public Offering, the holders of Series B and D have not yet converted or
irrevocably committed to convert their shares of Series B and D Preferred Stock
on the terms set forth herein or have not voted to approve the amendment to the
Certificate of Incorporation that is referred to in Subsection 32(e)(i), above,
then the Company shall give notice of redemption in respect of, and shall redeem
all shares of such Series as provided in the relevant Sections of the
Certificate of Incorporation of the Company immediately prior to or concurrently
with the consummation of the Qualified Public Offering.
(f) The provisions of this Section 32 shall be binding,
enforceable, and irrevocable and shall continue in full force and effect;
provided, however, in the event the Qualified Public Offering has not been
consummated on or before June 15, 2000, this Section 32 shall automatically
terminate and become null and void as of such date.
33. Effectiveness. In accordance with Section 16 of the Second Amended
Stockholders' Agreement, this Agreement shall be deemed valid and binding upon
all of the parties hereto as of the date of execution and delivery of
counterparts of this Agreement by the Company, ▇▇▇▇▇▇-▇▇▇▇▇▇ and Stockholders
(including ▇▇▇▇▇▇-▇▇▇▇▇▇) holding not less than fifty percent (50%) of the
Common Stock Beneficially Owned by all Stockholders.
34. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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The parties hereto have executed this Agreement on the date first set
forth above.
THE COMPANY:
REGENT COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier no: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇
2100 PNC Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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RIVER CITIES CAPITAL FUND LIMITED PARTNERSHIP
By: River Cities Management Limited Partnership,
General Partner
By: ▇▇▇▇▇▇, Inc., General Partner
By: /s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
R. ▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
BMO FINANCIAL, INC.
By:
-----------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
O'Melveny & ▇▇▇▇▇
Citicorp Center
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, Esq.
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
PNC BANK, N.A., as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: PNC Bank, N.A.
2500 PNC Center - Fifth Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
PNC BANK, N.A., CUSTODIAN
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: PNC Bank, N.A.
2500 PNC Center - Fifth Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇ MEDIA PARTNERS, L.P.
By: ▇▇▇▇▇▇-▇▇▇▇▇▇ Media, L.L.C., its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: c/o ▇▇▇▇▇▇-▇▇▇▇▇▇ Management
Group, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier no: (▇▇▇) ▇▇▇-▇▇▇▇
-31-
32
with a copy (which shall not constitute notice) to:
RubinBaum LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇ ▇▇▇▇▇, Esq.
Telecopier no: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: c/o ▇▇▇▇▇▇-▇▇▇▇▇▇ Management
Group, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier no: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
RubinBaum LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇ ▇▇▇▇▇, Esq.
Telecopier no: (▇▇▇) ▇▇▇-▇▇▇▇
WPG CORPORATE DEVELOPMENT ASSOCIATES V, L.P.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
-32-
33
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Finn, Dixon & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
WPG CORPORATE DEVELOPMENT ASSOCIATES V
(OVERSEAS), L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address: ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Finn, Dixon & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
BLUE CHIP CAPITAL FUND II LIMITED PARTNERSHIP
By: Blue Chip Venture Company, Ltd.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Address: Blue Chip Venture Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
-33-
34
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
BLUE CHIP CAPITAL FUND III LIMITED PARTNERSHIP
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Address: Blue Chip Venture Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
MIAMI VALLEY VENTURE FUND L.P.
By: Blue Chip Venture Company of Dayton, Ltd.,
its special limited partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Manager
Address: Blue Chip Venture Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
-34-
35
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier no: (▇▇▇) ▇▇▇-▇▇▇▇
THE ROMAN ARCH FUND L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: c/o Prudential Securities
One new York Plaza, 18th Floor
New York, NY 10292
THE ROMAN ARCH FUND II L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: c/o Prudential Securities
One new York Plaza, 18th Floor
New York, NY 10292
-35-
36
MESIROW CAPITAL PARTNERS VII
By: Mesirow Financial Services, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Vice President
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Jenner & Block
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: Gateway Center ▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-36-