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Exhibit 2(h)
AGREEMENT OF MERGER
AMONG
KZAP, INC.,
▇▇▇▇ ▇▇▇▇▇,
REGENT BROADCASTING, INC.,
AND
REGENT COMMUNICATIONS, INC.
MARCH 29, 2000
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AGREEMENT OF MERGER
This Agreement of Merger made and entered into this 29th day of March,
2000, by and among REGENT COMMUNICATIONS, INC., a Delaware corporation
("Regent"); REGENT BROADCASTING, INC., a Delaware corporation and wholly-owned
subsidiary of Regent ("RBI"); and KZAP, INC., a California corporation (the
"Company"); and ▇▇▇▇ ▇▇▇▇▇ ("Seller"), who is the sole shareholder of the
Company.
WHEREAS, Seller is the owner and holder of all of the issued and
outstanding shares of capital stock of the Company; and
WHEREAS, the Company, pursuant to authorizations duly granted and
issued by the Federal Communications Commission (hereinafter called the "FCC"),
owns and operates the radio station KZAP, Chico, California (the "Station"); and
WHEREAS, Seller and the Board of Directors of the Company and the Board
of Directors of RBI deem it advisable that the Company (sometimes referred to as
"the Disappearing Corporation") be merged into RBI (sometimes referred to as
"the Surviving Corporation") under the laws of the State of Delaware and the
State of California in the manner provided therefor pursuant to Section 252 and
related sections of Title 8 of the Delaware Code and Section 1100 et seq. of the
California Corporations Code; and
WHEREAS, as a result of such merger, control of the Company will be
transferred to Regent; and
WHEREAS, control of the Company may not be transferred without prior
written consent of the Federal Communications Commission; and
WHEREAS, Regent, RBI, and the Company have negotiated the terms and
conditions of such merger, including the consideration to be paid to Seller.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, it is hereby agreed as follows:
ARTICLE I
Agreement to Merge
1.01 Agreement. RBI and the Company hereby agree that, in accordance
with and subject to the terms and conditions set forth herein, upon
Effectiveness, the Company shall be merged with and into RBI, the separate
corporate existence of the Company shall cease, RBI shall continue in existence
and such merger shall in all respects have the effect provided for in Section
259 of the General Corporation Law of the State of Delaware and Section 1100 et
seq. of the California Corporations Code.
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1.02 Action to Effect Merger. Prior to, from and after Effectiveness,
the Company, RBI and Regent shall take all such action as shall be necessary or
appropriate, in order to effectuate this merger in accordance with and subject
to the terms of this Agreement of Merger and the laws of the State of Delaware
and State of California.
1.03. Certificate of Incorporation and By-Laws. From and after
Effectiveness and until thereafter amended as provided by law, the Certificate
of Incorporation and the By-Laws of RBI as in effect immediately prior to
Effectiveness shall be and continue to be the Certificate of Incorporation and
By-Laws of the Surviving Corporation.
1.04. Directors. The following shall be the directors of the Surviving
Corporation as of and after Effectiveness to hold office as provided in the
Certificate of Incorporation and By-Laws of the Surviving Corporation:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
1.05. Officers. The following shall be the officers of the Surviving
Corporation as of and after Effectiveness to hold office as provided in the
Certificate of Incorporation and By-Laws of the Surviving Corporation:
Chairman of the Board,
Chief Executive Officer,
Treasurer ..............................................▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President, Chief Operating
Officer, Secretary .................................▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President-Finance,
Assistant Secretary .....................................▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Assistant Secretary ..............................▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Assistant Secretary .....................................▇▇▇▇ ▇. ▇▇▇▇▇▇
1.06 Stockholder Approval; Effectiveness of Merger. This Agreement of
Merger has been approved by Seller and Regent as provided by the applicable laws
of the State of Delaware and State of California. If this Agreement is not
terminated or abandoned in accordance with its terms, this Agreement of Merger
shall be certified by the Company and RBI pursuant to Section 252(c) of the
General Corporation Law of the State of Delaware and Section 1103 of the
California Corporations Code, and the Surviving Corporation shall prepare, file
and record a Certificate of Merger in the form provided under such Sections as
soon as practicable after the Closing. The merger shall become effective upon
the due and proper filing of the Certificate of Merger, herein sometimes called
the "Effectiveness."
1.07. Authorized Shares of Disappearing Corporation. The Company
presently has authorized capital stock of no par value (the "Company Stock"),
all of which are issued and outstanding to Seller.
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1.08 Authorized Shares of Surviving Corporation. RBI presently has
authorized capital stock of 1,000 common shares, $1.00 per share par value, of
which 100 shares are issued and outstanding. Upon Effectiveness, the authorized
capital stock of the Surviving Corporation will consist of 1,000 shares of
common stock, $1.00 per share par value.
1.09 Cancellation of Shares. At Effectiveness, all outstanding shares
of Company Stock shall be transferred to RBI and cancelled, and each share held
in the Company's treasury shall, by virtue of the merger and without any action
on the part of the holder thereof, cease to be outstanding, shall be cancelled
and retired without payment of any consideration therefor and shall cease to
exist. At the Closing, Seller shall surrender for cancellation his certificate
or certificates evidencing all of the Company Stock.
1.10 Funding of Consideration for Company Stock. On or before the
Closing Date, Regent shall have issued and delivered to RBI 233,333 shares of
Common Stock of Regent.
1.11 Basic Merger Consideration. The consideration to be paid for the
Company Stock shall be 233,333 of fully-paid and nonassessable unregistered
shares of the Common Stock of Regent (the "Basic Merger Consideration"), subject
to adjustment as provided in Section 1.12.
1.12 Adjustment of Basic Merger Consideration. At the Closing, a
computation shall be compiled by the Company setting forth as of the Closing
Date the amount of the Company's Cash (as hereinafter defined) and all known
Liabilities of Company as set forth below ("Closing Statement"). The Basic
Merger Consideration shall be adjusted by (a) an increase by the amount of Cash
and (b) a decrease by the amount of Liabilities shown on the Closing Statement,
with a corresponding adjustment in the number of shares of Regent Common Stock
to be issued, determined by using a value of $6.00 per share. The number of
shares of the Common Stock of Regent determined after making the foregoing
adjustments to the Basic Merger Consideration is herein referred to as the
"Closing Merger Consideration."
As used herein, the term "Cash" shall mean cash on hand and in banks,
certificates of deposit, treasury bills and marketable securities and other cash
equivalents, but excluding accounts and notes receivable and any other current
asset listed on the Company's balance sheet.
As used herein, the term "Liabilities" shall mean at the Closing Date
the amount of all the liabilities of the Company that would be recorded on a
balance sheet or disclosed in the notes to the financial statements at that date
computed in accordance with generally accepted accounting principles applied on
a basis consistent with those followed in the preparation of the financial
statements described in Section 4.16 and shall include (i) accounts payable,
(ii) all indebtedness, (iii) any unpaid bonuses, severance or vacation pay
accrued to employees for the period ending on the day prior to the Closing Date,
(iv) trade and barter obligations, and (v) all other items which in accordance
with generally accepted accounting principles consistently applied would be
included as Liabilities of the Company. For purposes of the determination of
Liabilities, all expenses relating to the Company and arising from the conduct
of the Company's business and operation of the Station (including without
limitation such items as taxes, license fees, utilities, and rents) shall be
prorated between RBI and Seller in accordance with generally accepted accounting
principles as of 11:59 p.m. Pacific time, on the date immediately preceding the
Closing Date.
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Within ninety (90) days after the Closing Date, representatives of
RBI's auditors shall examine the computation of the Closing Merger Consideration
in accordance with this Section 1.12, including an examination of such of the
Company's books and records as are deemed necessary or appropriate, to verify
the Company's Cash and Liabilities as of the Closing Date in accordance with
auditing standards approved and adopted by the American Institute of Certified
Public Accountants and otherwise in accordance with generally accepted
accounting principles. Based upon such examination, they shall prepare a report
setting forth their computation of the Merger Consideration pursuant to this
Section 1.12 ("Closing Report"), and upon completion of such Closing Report,
they shall deliver same to Seller and RBI. If either RBI or Seller shall
disagree with the Closing Report, such parties shall, within fifteen (15) days
after receipt of such Closing Report, give written notice to the other and RBI's
auditors of its objection to the Closing Report, specifying each item or
computation to which objection is taken and the reason for such objection. In
such event, Seller and RBI shall use their best efforts to resolve such
objections and to agree upon the Closing Report through negotiation. If Seller
and RBI are unable to reconcile their differences and to mutually agree upon the
Closing Report, within thirty (30) days after such written notice shall have
been given as aforesaid, Seller and RBI shall designate a mutually agreeable
independent national accounting firm, or if such firm cannot act, another
national accounting firm (which has not been retained by either Seller, the
Company or RBI within the past ten (10) years) mutually acceptable to such
parties to act as arbitrator ("Arbitrator"). The Arbitrator shall determine all
issues in disagreement and shall make such adjustments, if any, to the items and
computations in the Closing Report as are necessitated by such determinations,
and shall within thirty (30) days after their designation as Arbitrator deliver
to Seller and RBI a written statement setting forth all adjustments made by the
Arbitrator to the Closing Report. Such Closing Report shall be employed to
determine any further adjustments to the number of shares, at $6.00 per share,
required to the Merger Consideration pursuant to this Section 1.12 ("Final
Merger Consideration"), and such Final Merger Consideration shall be final,
conclusive and binding upon all parties to this Agreement. The fees and expenses
of RBI's auditor and the Arbitrator in connection with the making of the Closing
Report and the determinations herein provided for to resolve any differences
over the Closing Report shall be paid one-half by Seller and one-half by RBI.
Within five (5) business days after the determination of the Final
Merger Consideration, any adjustment to the Closing Report required thereby and
the number of shares of Regent Common Stock to be issued in this transaction
shall be made by Seller to RBI or by RBI to Seller, as the case may be, in
shares of Regent Common Stock.
1.13 Escrow Deposit. Within ten (10) days following the execution of
this Agreement, RBI shall deliver to Mid Valley Title and Escrow ("Escrow
Agent") cash or an irrevocable, stand-by letter of credit in the amount of Fifty
Thousand Dollars ($50,000.00) (the "Escrow Deposit"). The Escrow Deposit shall
be held and applied by the Escrow Agent in accordance with the terms of a
Deposit Escrow Agreement in the form of Exhibit A attached hereto (the "Deposit
Escrow Agreement"), executed by the parties thereto contemporaneously with the
execution of this Agreement. As more fully described in the Deposit Escrow
Agreement:
(a) in the event this Agreement is terminated solely because
of RBI's material breach of this Agreement and all other conditions to Closing
are at such time satisfied or waived
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(other than such conditions as can readily be satisfied by the Closing), the
Escrow Deposit shall be delivered to Seller (who may exercise his right to draw
on the letter of credit) as his sole remedy and as liquidated damages as
provided in Section 13.04 hereof for RBI's material breach of this Agreement;
and
(b) in the event this Agreement is terminated under any
circumstances other than those set forth in Section 1.13(a) above, the Escrow
Deposit shall be delivered to RBI.
1.14 Payment of Merger Consideration. At the Closing, the Escrow
Deposit shall be delivered to RBI. The Closing Merger Consideration shall be
paid as follows:
(a) Eight Thousand Three Hundred Thirty-Three (8,333) shares
of Common Stock of Regent delivered to the Escrow Agent, to be held,
administered and released in accordance with the terms of an Indemnification
Escrow Agreement to be executed by Seller, RBI, Regent, and the Escrow Agent at
the Closing in the form of Exhibit B attached hereto (the "Indemnification
Escrow Agreement"), which funds shall be held in escrow until the expiration of
twelve (12) months after the Closing Date, and will be used to satisfy
indemnification claims of RBI and Regent pursuant to Section 12.02 hereof; and
(b) Two Hundred Twenty-Five Thousand (225,000) shares of
Regent's Common Stock to Seller, subject to adjustment thereafter in accordance
with Section 1.12.
1.15 Closing. Except as otherwise mutually agreed upon by the parties,
the consummation of the transactions contemplated herein (the "Closing") shall
occur within five (5) business days after the later to occur of (a) the
satisfaction or waiver of each condition to closing contained herein, other than
such conditions as are reasonably anticipated to be satisfied at Closing
(provided that each party hereto shall use its reasonable best efforts to cause
each condition to closing to be satisfied so that the Closing may occur at the
earliest possible date), and (b) the issuance of the Final Order (as defined
below), or such other date as may be mutually agreed by the parties hereto (the
"Closing Date"); provided, however, that RBI, and Regent may in their discretion
waive the requirement that a Final Order be issued and elect (subject to clause
(a) above) to close at any time (upon not less than five (5) business days'
notice to Seller) after the release of initial FCC approval on public notice
that it has consented to the transactions contemplated hereby (the "Initial
Approval"). For purposes of the Agreement, "Final Order" (and "Final") means an
order or grant by the FCC which is no longer subject to timely reconsideration
or review by the FCC or a court of competent jurisdiction and pursuant to which
the FCC consents, as the case may be, to the transactions contemplated by this
Agreement, such order or grant being without the imposition of any conditions
adverse to RBI and Regent or any Affiliate (as hereinafter defined) of RBI and
Regent with respect to the transfer of control of the FCC Licenses to Regent or
the continued operation by RBI of the Station. In the event that the parties
close before the Initial Approval has become a Final Order, the parties shall
enter into a mutually acceptable Unwind Agreement. The Closing shall be held
preferably by exchange of closing documents by overnight deliveries, or
otherwise in the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇ in Cincinnati, Ohio, or at such place
and in such manner as the parties hereto may agree.
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ARTICLE II
Governmental Consents
2.01 FCC Consent. It is specifically understood and agreed by the
parties that the Closing and the transfer of control of the Station Licenses and
the transfer of the Company Stock are expressly conditioned on and are subject
to the prior consent and approval of the FCC without the imposition of any
conditions adverse to RBI and Regent or any Affiliate of RBI and Regent (the
"FCC Consent").
2.02 FCC Application. Within ten (10) business days after the execution
of this Agreement, Regent and Seller shall file an application with the FCC for
the FCC Consent (the "FCC Application"). Regent and Seller shall prosecute the
FCC Application with all reasonable diligence and otherwise use their best
efforts to obtain the FCC Consent as expeditiously as practicable (but neither
Regent nor Seller shall have any obligation to satisfy complainants or the FCC
by taking any steps which would have a material adverse effect upon Regent or
Seller or upon any of their respective Affiliates). If the FCC Consent imposes
any condition on Regent or Seller or any of their respective Affiliates, such
party shall use its best efforts to comply with such condition; provided,
however, that neither Regent nor Seller shall be required hereunder to comply
with any condition that would have a material adverse effect upon it or any of
its Affiliates. If reconsideration or judicial review is sought with respect to
the FCC Consent, the party affected shall vigorously oppose such efforts for
reconsideration or judicial review; provided, however, that nothing herein shall
be construed to limit either party's right to terminate this Agreement pursuant
to Article 13.01 hereof.
ARTICLE III
Representations and Warranties of RBI and Regent
RBI and Regent hereby make the following representations and
warranties, each of which is true and correct on the date hereof, shall survive
the Closing and shall be unaffected by any investigation heretofore or hereafter
made by Seller:
3.01 Standing. RBI and Regent are duly organized, validly existing and
in good standing under the laws of the State of Delaware, and have all requisite
corporate power and authority to own and lease their properties and carry on
their business as now being conducted by them.
3.02 Authority. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of RBI and Regent and this
Agreement is a valid and binding obligation of RBI and Regent.
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3.03 Qualification. RBI and Regent have no knowledge of any facts which
would, under present law (including the Communications Act of 1934, as amended),
and present rules, regulations, practices and policies of the FCC, disqualify
RBI and Regent as the transferee of the licenses, permits and authorizations
listed on Schedule 4.08 hereto, or as an owner and/or operator of the Station,
and RBI and Regent will not take, or unreasonably fail to take, any action which
RBI and Regent know or have reason to know would cause such disqualification.
Should RBI and Regent become aware of any such facts, they will promptly notify
Seller in writing thereof and use their best efforts to prevent any such
disqualification.
3.04 Absence of Conflicting Agreements or Required Consents. Except as
set forth in Article II hereof with respect to governmental consents or on
Schedule 3.04 hereto, the execution, delivery and performance of this Agreement
by RBI and Regent: (a) do not conflict with the provisions of the articles of
incorporation or by-laws of RBI and Regent; (b) do not require the consent of
any third party not affiliated with RBI and Regent; (c) will not violate any
applicable law, judgment, order, injunction, decree, rule, regulation or ruling
of any governmental authority to which RBI and Regent are a party; and (d) will
not, either alone or with the giving of notice or the passage of time, or both,
conflict with, constitute grounds for termination of or result in a breach of
the terms, conditions or provisions of, or constitute a default under, any
agreement, instrument, license or permit to which RBI and Regent are now
subject.
3.05 Common Stock. The Common Stock, when delivered to Seller pursuant
to the terms of this Agreement, will be validly issued, fully paid and
non-assessable.
ARTICLE IV
Representations and Warranties of Seller and the Company
Seller and the Company make the following representations and
warranties, each of which is true and correct on the date hereof, shall survive
the Closing and shall be unaffected by any investigation heretofore or hereafter
made by RBI and Regent:
4.01 Corporate Standing. Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of California
and has all requisite corporate power and authority to own or lease its
properties and to carry on its business as now being conducted. Company is not
qualified or required to be qualified in any other jurisdiction in order to own
or lease its properties or to carry on its business as now being conducted.
4.02 No Subsidiaries and Investments. The Company has no Subsidiaries
or Affiliates. The Company does not own, directly or indirectly, any capital
stock or other equity or ownership or proprietary interest in any other
corporation, partnership, association, trust, joint venture or other entity.
Since the Financial Statement Date, as defined below, except as set forth in
Schedule 4.02 no investment securities of any kind have been acquired or
disposed of by the Company. The businesses carried on by the Company have not
been conducted through any other direct or indirect subsidiary or entity related
to the Company or Seller.
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4.03 Charter and By-Laws. Seller has delivered to RBI true and complete
copies of the Articles of Incorporation and By-Laws of Company as in effect on
the date of delivery thereof. There has been no change in the Articles of
Incorporation or By-Laws of the Company since the delivery of copies thereof to
RBI. No provision of the Articles of Incorporation or the By-Laws of the Company
or of any agreement, instrument or undertaking to which the Company is a party
or by which the Company is bound, has been or will be violated by the execution
and delivery by Seller and the Company of this Agreement or the performance or
satisfaction of any obligation or condition herein contained on their part to be
performed or satisfied. The Company is not now nor on the Closing Date will it
be in default in the performance, observance or fulfillment of any of the terms
or conditions of its Articles of Incorporation or By-Laws. Seller has delivered
to RBI true and complete copies of the stock records and the minute book of the
Company for inspection and the stock records truly, accurately and fully account
for all transactions in the Company's capital stock, and the minute book
contains the up-to-date, complete, and accurate minutes of the actions of the
Company's Board of Directors and stockholders from its inception.
4.04 Directors and Officers; Compensation; Banks. Schedule 4.04
represents a true and complete list showing as of the date of delivery thereof
the following:
(a) The names of all of the directors and officers of the
Company;
(b) A payroll roster of the Company for the most recent
payroll period ended prior to the date of delivery thereof showing the names,
titles, and annualized current rate of pay for each person entitled to receive
compensation from the Company;
(c) Each bank account and safety deposit box of the Company,
all authorized signatories to such account and all persons having access to such
safety deposit box; and
(d) The names of all persons, if any, holding a power of
attorney from the Company. The information set forth in each such list is true
and accurate on the date hereof. Each officer and director or any other person
holding authorized signatory powers of the Company will submit his or her
written resignation as such to RBI on the Closing Date, effective with the
delivery thereof.
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4.05 Capitalization; Company Stock.
(a) The authorized capital stock of the Company (the "Capital
Stock") consists of 1,000 shares of authorized Common Stock, no par value, of
which 1,000 shares are issued and outstanding. All issued and outstanding shares
of Capital Stock constitute the Company Stock. All shares of Company Stock are
duly authorized, validly issued in compliance with all applicable laws, fully
paid and non-assessable and not subject to preemptive rights created by statute,
the Articles of Incorporation or Bylaws of the Company or any agreement to which
the Company is a party or by which it is bound. The Company Stock is owned by
Seller, free and clear of all security interests, liens, pledges, encumbrances,
agreements, charges, rights of rescission or claims of any kind (including
without limitation any restrictions on the use, voting, transfer, receipt of
income or other exercise of any attributes of ownership ("Encumbrances")) by or
on the part of any person, firm or corporation. Seller has good and marketable
title to the stock owned by him with full right to enter into this Agreement and
to sell, assign, transfer and deliver the same to RBI. Seller is the record and
beneficial owner of all shares of Company Stock and the transfer thereof from
the Seller to RBI will vest RBI with good and marketable title, free and clear
of all Encumbrances to all of the issued and outstanding shares of capital stock
of Company.
(b) There are no options, warrants, calls, rights, commitments
or agreements of any character, written or oral, to which the Company is a party
or by which it is bound obligating the Company to issue, deliver, sell,
repurchase or redeem, or cause to be issued, delivered, sold, repurchased or
redeemed, any shares of the capital stock of the Company or obligating the
Company to grant, extend, accelerate the vesting of, change the price of,
otherwise amend or enter into any such option, warrant, call, right, commitment
or agreement. There is outstanding no vote, plan, or pending proposal for any
redemption of stock of Company or merger or consolidation of Company with or
into any other corporation. Except for legends disclosed on Schedule 4.05, no
legend or other reference to any purported Encumbrances appears upon any
certificate representing shares of Company Stock. The delivery of the
certificates to RBI provided in Section 1.09 of this Agreement and the payment
to Seller provided in Section 1.14 of this Agreement will result in RBI's
immediate acquisition of record and sole beneficial ownership of all the shares
of Company Stock and rights to acquire or receive Capital Stock, free and clear
of all Encumbrances.
4.06 Authorization and Binding Obligation. Seller and the Company have
the power and authority, and have taken all necessary and proper action to enter
into and perform this Agreement and to consummate the actions contemplated
hereby. This Agreement constitutes the legal, valid and binding obligation of
Seller and the Company.
4.07 Absence of Conflicting Agreements or Required Consents. Except as
set forth in Article II with respect to governmental consents and in Schedule
4.07 with respect to compliance with Sections 1103 and 25151 of the California
Corporations Code and consents required in connection with the assignment of
certain material Contracts, the execution, delivery and performance of this
Agreement by Seller and the Company: (a) do not require the consent of any third
party (including, without limitation, the consent of any governmental,
regulatory, administrative or similar authority); (b) will not conflict with,
result in a breach of, or constitute a violation of or default under, the
provisions of the Company's articles of incorporation or bylaws
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(or other charter or organizational documents), or any applicable law, judgment,
order, injunction, decree, rule, regulation or ruling of any governmental
authority to which the Company or Seller is a party or by which the Company or
Seller is bound; (c) will not either alone or with the giving of notice or the
passage of time, or both, conflict with, constitute grounds for termination of
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, any Contract, agreement, instrument, license or permit to which
the Company is now subject; and (d) will not result in the creation of any lien,
charge or encumbrance on any of the Company Stock or Station Assets.
4.08 Government Authorizations.
(a) Schedule 4.08 hereto contains a true and complete list of
the Station Licenses and other licenses, permits or other authorizations from
governmental and regulatory authorities which are required for the lawful
conduct of the business and operations of the Station in the manner and to the
full extent they are presently conducted (including, without limitation,
auxiliary licenses associated with the Station). Seller has delivered to RBI
true and complete copies of the Station Licenses and the other licenses, permits
and authorizations listed in Schedule 4.08, including any and all amendments and
other modifications thereto.
(b) As specified in Schedule 4.08, the Company is the
authorized legal holder of the Station Licenses and other licenses, permits and
authorizations listed in Schedule 4.08. None of the Station Licenses and other
licenses, permits and authorizations listed in Schedule 4.08 is subject to any
restrictions or conditions which would materially limit the full operation of
the Station as now operated.
(c) Except for matters affecting the radio broadcast industry
generally, there are no complaints, petitions to deny, informal objections, or
adjudication proceedings pending or, to the best of Seller's knowledge,
threatened as of the date hereof before the FCC or any other governmental or
regulatory authority relating to the business or operations of the Station. The
Station Licenses and the other licenses, permits and authorizations listed in
Schedule 4.08 are in good standing, are in full force and effect and are
unimpaired by any act or omission of the Company or its shareholders, officers,
directors or employees. The operations of the Station are in accordance with the
Station Licenses and the underlying construction permits and the other licenses,
permits and authorizations listed in Schedule 4.08. No proceedings are pending
or, to the best of Seller's knowledge, threatened, and there has not been any
act or omission of the Company or any of its officers, directors, shareholders
or employees, which reasonably may result in the revocation, modification,
non-renewal or suspension of any of the Station Licenses or the other licenses,
permits and authorizations listed in Schedule 4.08, the denial of any pending
applications, the issuance of any cease and desist order, the imposition of any
administrative sanctions by the FCC or any other governmental or regulatory
authority with respect to the Station Licenses or the other licenses, permits
and authorizations listed in Schedule 4.08 or which may affect RBI's ability to
continue to operate the Station as it is currently operated.
(d) The Station is operating with the maximum facilities
specified in its Station License.
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(e) To the best of Seller's knowledge: (i) the Station is not
causing objectionable interference to the transmissions of any other broadcast
station or communications facility nor has the Station received any complaints
with respect thereto; and (ii) no other broadcast station or communications
facility is causing objectionable interference to respective transmissions of
the Station or the public's reception of such transmissions.
(f) Seller has no reason to believe that the Station Licenses
and the other licenses, permits, or authorizations listed in Schedule 4.08 will
not be renewed in their ordinary course.
(g) All reports, forms, and statements required to be filed by
the Company with the FCC with respect to the Station since the grant of the last
renewal of the Station Licenses have been filed and are substantially complete
and accurate.
(h) The operation of the Station and all of the Station Assets
is in compliance in all respects with ANSI Radiation Standards C95.1 - 1992.
4.09 Compliance with FCC Regulations. The operation of the Station and
all of the Station Assets is in compliance in all respects with: (a) all
applicable engineering standards required to be met under applicable FCC rules;
and (b) all other applicable federal, state and local rules, regulations,
requirements and policies, including, but not limited to, equal employment
opportunity policies of the FCC, and all applicable painting and lighting
requirements of the FCC and the Federal Aviation Administration to the extent
required to be met under applicable FCC rules and regulations, and to the best
of Seller's knowledge, there are no filed claims to the contrary.
4.10 Taxes. The Company has filed all federal, state, local and foreign
income, franchise, sales, use, property, excise, payroll and other tax returns
required by law to be filed by it. Seller has delivered to RBI true and complete
copies of all federal, state and local tax returns of the Company as filed for
the years ended December 31, 1996, 1997, and 1998, and promptly upon filing will
deliver to RBI true and complete copies of all federal, state and local tax
returns of the Company as filed for the year ended December 31, 1999. The
Company has duly paid or accrued all taxes required to be paid by it in respect
of the periods covered by all such returns, whether or not shown on such
returns, and all interest and penalties thereon, whether disputed or not, and
the Company has no liability for taxes in excess of the amounts so paid. All of
the tax liabilities of the Company for the current year to date and all prior
years, whether or not they have become due and payable, have been paid in full
or adequately reserved for, and to the extent tax liabilities have accrued but
not become payable, they are reflected on the books of the Company or in the
Financial Statements. The Company has not requested any extension of time within
which to file any tax returns which have not since been filed, and no
deficiencies for any tax, assessment or governmental charge have been claimed,
proposed or assessed by any taxing authority and there is no basis for any such
deficiency or claim. The federal income tax returns of the Company have been
examined by the federal tax authorities or closed by applicable statute and
satisfied for all periods to and including fiscal year 1993; all deficiencies
asserted as a result of such examinations have been paid or finally settled; and
no state of facts exists or has existed which might constitute grounds for the
assessment of any further tax liability with respect to the periods which have
been audited by the federal, state, local or foreign taxing authorities. There
are no present disputes as to
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taxes of any nature payable by the Company which in any event could adversely
affect any of the Station Assets or the operation of the Station. Except as set
forth on Schedule 4.10, the Company has not been advised that any of its tax
returns, federal, state, local or foreign, have been or are being audited. The
Company does not have as of the date hereof any liability, fixed or contingent,
for any unpaid federal, state or local taxes or other governmental or regulatory
charges whatsoever (including without limitation withholding and payroll taxes).
As used herein, the term "tax" includes, without limitation, all federal, state,
local and foreign income, profits, sales, use, occupancy, excise, added value,
employees' income withholding, social security, franchise, property, and all
other governmental taxes, license fees and other changes of every kind and
description and related governmental charges imposed by the laws and regulations
of any governmental jurisdiction, whether such taxes are due or claimed to be
due from them by federal, state, local or foreign taxing authorities.
4.11 Personal Property. Schedule 4.11 hereto contains a list of all
material items of tangible personal property owned by the Company and used in
the conduct of the business and operations of the Station. Schedule 4.11 also
separately lists any material tangible personal property leased by the Company
pursuant to leases included within the Contracts. The Company has good and
marketable title to all of the items of tangible personal property which are
included in the Station Assets (other than those subject to lease) and none of
such Station Assets is, or at the Closing will be, subject to any security
interest, mortgage, pledge, lease, license, lien, encumbrance, title defect or
other charge, except for liens for taxes not yet due and payable, and liens or
encumbrances described in Schedule 4.11. The properties listed in Schedule 4.11,
along with those properties subject to leases which are included among the
Contracts, constitute all material tangible personal property necessary to
operate the Station as the same is now being operated. Except as set forth in
Schedule 4.11, all items of tangible personal property included in the Station
Assets are in good and technically sound operating condition and repair
(ordinary wear and tear excepted), are free from all material defect and damage,
are suitable for the purposes for which they are now being used, and have been
maintained in a manner consistent with generally accepted standards of good
engineering practice.
4.12 Real Property.
(a) Schedule 4.12 hereto contains a complete and accurate list
and description of all real property (including without limitation, real
property relating to the towers, transmitters, studio sites and offices of the
Station) used by the Company in connection with the operations of the Station
(the "Real Estate") and includes the name of the record title holder(s) thereof
and a list of all indebtedness secured by a lien, mortgage or deed of trust
thereon. The Company has good and marketable title in fee simple to all the Real
Estate specified as owned by it in Schedule 4.12, free and clear of all liens,
charges, security interests, physical and financial encumbrances, leases,
covenants, restrictions, rights of way, easements, encroachments, other matters
affecting title, and adverse claims of any kind, direct or indirect, whether
accrued, absolute, contingent or otherwise, except for those set forth in
Schedule 4.11 or 4.12. With respect to each of the buildings, structures and
appurtenances situated on the Real Estate, the Company has adequate rights of
ingress and egress for operation of the business of the Company in the ordinary
course. None of the buildings, structures, improvements, or fixtures constructed
on the Real Estate, including without limitation towers, guy wires and guy
anchors, and ground radials, nor the operation or maintenance thereto,
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violates any restrictive covenant or any provision of any federal, state or
local law, ordinance, rule or regulation, or encroaches on any property owned by
others. No condemnation proceeding is pending or threatened which would preclude
or impair the continued use of any such property by the Company for the purposes
for which it is currently used.
(b) Except as described in Schedule 4.12, all buildings,
structures, towers, antennae, improvements and fixtures situated on the Real
Estate are in good and technically sound operating condition, ordinary wear and
tear excepted, have no latent structural, mechanical or other defects of
material significance, are reasonably suitable for the purposes for which they
are being used, and each has adequate rights of ingress and egress, utility
service for water and sewer, telephone, electric and/or gas, and sanitary
service for the conduct of the business and operations of the Station as
presently conducted.
4.13 Contracts. Schedule 4.13 lists all material Contracts to which the
Company is a party, or which are binding on the Company, as of the date of this
Agreement, including a listing of all barter and trade agreements (contracts for
the sale of broadcast time or advertising on the Station in exchange for
merchandise or services) involving a barter payable or barter receivable in
excess of $1,000 as of the date of this Agreement, specifying for each the
amount of the barter payable or barter receivable, whichever is applicable. All
of such barter and trade agreements are preemptible for cash sales and none is
subject to fixed positions (except for those contracts which provide for the
delivery of programming to the Station in return for barter advertising). The
Company has delivered to RBI true and complete copies of all written material
Contracts and true and complete memoranda of all oral material Contracts,
including any and all amendments and other modifications thereto. All of the
material Contracts are in full force and effect and are valid, binding and
enforceable in accordance with their respective terms, except as limited by laws
affecting creditors' rights or equitable principles generally. The Company has
complied in all respects with all material Contracts and is not in default
beyond any applicable grace periods, and, to the best of Seller's knowledge, no
other contracting party is in default under any of the terms thereof. For
purposes of this Agreement, a Contract shall be deemed material if its remaining
term is more than one year in length, it involves cash expenditures in excess of
$10,000, if it is a capitalized lease, or if its non-existence would adversely
affect rights of occupancy or access to leased or owned real estate or building
space. Except as designated by the reference to particular Contracts listed on
Schedule 4.13 by a letter in parenthesis which corresponds to the applicable
subpart below, the Company is not a party (in its own name or as successor in
interest) to any written or oral:
(a) contracts or commitments involving employment, profit
sharing, pension, bonus, percentage compensation, incentive compensation,
deferred compensation, employee benefits, stock options or warrants or employee
stock purchase;
(b) leases or licenses with respect to any property, real or
personal, as lessor, lessee, licensor, or licensee, except leases of personal
property with the Company as lessee having a value of less than $5,000 per annum
in the aggregate;
(c) agreement, contract or commitment for any capital
expenditures;
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(d) agreement, indenture or other instrument which contains
restrictions with respect to payment of dividends or any other distribution in
respect of its capital stock;
(e) agreement, contract or commitment limiting the freedom of
the Company to engage in any line of business or to compete with any other
person or entity;
(f) contract or option for the purchase of any real or
personal property other than in the ordinary course of business;
(g) letter of credit or guarantee agreement in respect of any
indebtedness or obligation of any other person or entity (other than the
endorsement of negotiable instruments for collection in the ordinary course of
business);
(h) contract or commitment to acquire investment securities or
to extend credit;
(i) agreement, contract or commitment which might reasonably
be expected to have a potential adverse impact on the business or operations or
the Company; or
(j) any other contract for borrowed money either as borrower
or lender.
4.14 Environmental. The Company has complied in all material respects
with all federal, state and local environmental laws, rules and regulations as
in effect on the date hereof applicable to the Station and its operations,
including but not limited to the FCC's guidelines regarding RF radiation. No
hazardous or toxic waste, substance, material or pollutant (as those or similar
terms are defined under the Comprehensive Environmental Response, Compensation
and Liability, Act of 1980, as amended, 42 U.S.C. sections 9601 et seq., Toxic
Substances Control Act. 15 U.S.C. sections 2601 et seq., the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. sections 6901 et seq. or any
other applicable federal, state and local environmental law, statute, ordinance,
order, judgment rule or regulation relating to the environment or the protection
of human health ("Environmental Laws"). including but not limited to, any
asbestos or asbestos related products, oils or petroleum-derived compounds,
CFCs, PCBs, or underground storage tanks, have been released, emitted or
discharged (in violation of applicable laws or regulations), or are currently
located (in violation of applicable laws and regulations) in, on, under, or
about the real property on which the Station Assets are situated, including
without limitation the transmitter sites, or contained in the tangible personal
property included in the Station Assets. The Station Assets and the Company's
use thereof are not in violation in any material respect of any Environmental
Laws or any occupational, safety and health or other applicable law now in
effect.
4.15 Intellectual Property. Schedule 4.15 hereto is a true and complete
list of all material Intellectual Property applied for, registered or issued to,
and owned by the Company or under which the Company is a licensee and which is
used in the conduct of the Company's business and operations. Except as set
forth on Schedule 4.15, to the best of Seller's knowledge: (a) the Company's
right, title and interest in the Intellectual Property as owner or licensee, as
applicable, is free and clear of all liens, claims, encumbrances, rights, or
equities whatsoever of any third party and, to the extent any of the
Intellectual Property is licensed to the Company, such interest is valid and
uncontested by the licensor thereof or any third party; (b) all computer
software located at the
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Station's facilities or used in the Station's business or operations is properly
licensed to the Company, and all of the Company's uses of such computer software
are authorized under such licenses; and (c) there are no infringements or
unlawful use of such Intellectual Property by the Company in connection with the
Company's business or operations.
4.16 Financial Statements. The Company or Seller has delivered to RBI
copies of the Company's financial statements for the fiscal year ended December
31, 1999 (the "Financial Statement Date"), and for the fiscal years ended on
December 31 of each of the years 1997 and 1998, and notes thereto (the
"Financial Statements"), all of which are true, complete and correct, have been
prepared from the books and records of the Company in accordance with generally
accepted accounting principles consistently applied and maintained throughout
the periods indicated, and which present fairly the financial position and
results of operations of the Company as of the dates thereof and for the periods
covered thereby. The Financial Statements include:
(a) the balance sheets of the Company as of the Financial
Statement Date; and
(b) the related statements of earnings, source and application
of funds, shareholders' equity and changes in financial position or cash flows
(as the case may be) for the years ended as indicated on each of the Financial
Statements.
In such Financial Statements, the statements of earnings do not contain
any items of special or nonrecurring income or any other income not earned in
the ordinary course of business except as expressly specified therein, and the
Interim Financial Statements include all adjustments, which consist only of
normal recurring accruals, necessary for such fair presentation. There are no
facts known to Seller or the Company which would alter the information contained
in the Financial Statements in any way whatever.
4.17 Absence of Certain Payments. Neither the Company, Seller, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company, has, directly or indirectly, within the past five years,
used any funds of the Company for unlawful contributions, gifts, entertainment
or other unlawful expenses relating to political activity, or made any direct or
indirect unlawful payments to government officials or employees from corporate
funds, or made or received any payment, whether direct or indirect, to or from
any supplier or customer of the Company, for purposes other than the
satisfaction of lawful obligations, or established or maintained any unlawful or
unrecorded funds, where any of the foregoing would have a material adverse
affect on the financial condition, results of operations, business or prospects
of the Company.
4.18 Receivables. All receivables of the Company (including accounts
receivable, loans receivable and advances) which are reflected in the Financial
Statements, and all such receivables which will have arisen since the date
thereof, shall have arisen only from bona fide transactions in the ordinary
course of the Company's business.
4.19 Liabilities. Except to the extent reflected, reserved against, or
noted on the Financial Statements, the Company had, as of the Financial
Statement Date, no debts, liabilities or obligations of any nature whatsoever,
whether accrued, absolute, contingent, or otherwise, and
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whether due or to become due, for any period or arising out of any transaction
entered into or any set of facts existing prior thereto, whether or not then
known due or payable. There exists no basis for the assertion against the
Company of any material liability of any nature or in any amount not fully
reflected, reserved against, or noted in Financial Statements as of the
Financial Statement Date. All deposits, accounts and notes payable, and other
liabilities of the Company are current and not in default.
4.20 Labor Matters. The Company is not a party to any contract or
agreement with any labor organization, nor has the Company agreed to recognize
any union or other collective bargaining unit, nor has any union or other
collective bargaining unit been certified as representing any employees of the
Company at the Station. The Company has no knowledge of any organizational
effort currently being made or threatened by or on behalf of any labor union
with respect to employees at the Station. The Company has not consented to any
final decree involving any claim of unfair labor practice and has not been held
in any final judicial proceeding to have committed any unfair labor practice and
there are no material controversies pending or threatened between the Company
and any of its employees or any labor union or collective bargaining agent
representing or purporting to represent employees of the Company. Since December
31, 1998, there has been no unusual increase in compensation payable by the
Company to any of its officers, employees or agents or any bonus payment or
similar arrangements made to or with them. The Company has complied in all
material respects with all federal and state laws relating to the employment of
labor, including, without limitation, the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and those laws relating to wages, hours,
collective bargaining, unemployment insurance, workers' compensation,
discrimination in employment practices or benefits, family and medical leave,
employment of handicapped or disabled individuals, sexual harassment, equal
employment opportunity, employment of protected minorities (including women and
persons over 40 years of age), and payment and withholding of taxes.
4.21 Litigation. The Company is not subject to any judgment, award,
order, writ, injunction, arbitration decision or decree relating to the conduct
of the business or the operation of the Station or any of the Station Assets,
and there is no litigation, administrative action, arbitration, proceeding or
investigation pending or, to the best knowledge of Seller, threatened against
the Company in any federal, state or local court, or before any administrative
agency or arbitrator (including, without limitation, any proceeding which seeks
the forfeiture of, or opposes the renewal of, any of the Station Licenses), or
before any other tribunal duly authorized to resolve disputes. In particular,
but without limiting the generality of the foregoing, there are no complaints,
petitions to deny, informal objections, or adjudication proceedings pending or,
to the best knowledge of Seller, threatened before the FCC or any other
governmental organization with respect to the business or operations of the
Station.
4.22 Compliance With Laws. Except as set forth in Schedule 4.22, the
Company is not in material violation of, nor has Seller or the Company received
any notice asserting any non-compliance by the Company with, any statute, rule
or regulation, whether federal, state or local. The Company is not in default
with respect to any judgment, order, injunction or decree of any court
administrative agency or other governmental authority or any other tribunal duly
authorized to resolve disputes which relates to the transactions contemplated
hereby. The Company is in compliance in all material respects with all laws,
regulations and governmental orders applicable to
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the conduct of the business and operations of the Station, and its present use
of the Station Assets does not violate any of such laws, regulations or orders.
4.23 Personnel; Employee Benefit Plans.
(a) Schedule 4.04 contains a true and complete list of all
persons employed at the Station, including date of hire, a description of
material compensation arrangements and a list of other material terms of any and
all agreements affecting such persons and their employment by the Company.
(b) Schedule 4.23 contains a true and complete list as of the
date of this Agreement of all employee benefit plans applicable to the employees
of the Company, and a brief description thereof. Except as set forth on Schedule
4.23, the Company does not maintain or have any present or future obligation or
liability with respect to, any bonus, deferred compensation, pension,
profit-sharing, retirement, severance pay, insurance, stock purchase, stock
option, welfare benefit, or other fringe benefit plan, arrangement or practice,
or any other employee benefit plan, as defined in Section 3 of the ERISA,
whether qualified or unqualified, formal or informal (collectively, the
"Plans"). The Company has delivered to RBI true and complete copies of: (i) all
documents which comprise each of the Plans, including any related trust
agreements or insurance contracts (or any other funding instruments), (ii) the
most current summary plan description (and any summary of material
modifications) for each Plan for which one is required, (iii) the most recent
Internal Revenue Service ("IRS") determination letter relating to each Plan
intended to be qualified under Section 401(a) of the Internal Revenue Code of
1986 (the "Code) (and none of such Plans has been amended or modified since the
date of the latest determination letter relating thereto), (iv) the most recent
annual reports (Form 5500 Series) and accompanying schedules filed for each of
the Plans for which one is required, and (v) the most recent actuarial report
for each of the Plans for which required (which report fairly presents the
assets and liabilities of the Plans as of the date thereof). Except as set forth
in Schedule 4.23, there have been no material changes in the terms of the Plans,
or in the assets or liabilities associated with such Plans, as reflected in the
foregoing documents. Each of the Plans has been administered in accordance with
its terms, and to the extent applicable, complies with and has been administered
in accordance with ERISA and the Code.
(c) The Company has not engaged in, and Seller does not have
knowledge of any person that has engaged in, any transaction in violation of
Section 406(a) or (b) of ERISA for which no exemption exists under Section 408
of ERISA, or any "prohibited transaction" as defined in Section 4975(c)(1) of
the Code for which no exemption exists under Section 4975(c)(2) or (d) of the
Code, with respect to any Plan.
(d) Neither the Company nor any corporation or other trade or
business under common control with the Company (as determined under Section
414(b), (c), or (m) of the Code) has taken any action, and Seller does not have
any knowledge of any action or event that could cause the Company to incur
liability under Title IV of ERISA.
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(e) The Company has never been and is not now a party to, nor
is Company bound by and required to contribute to, a multiemployer plan within
the meaning of Section 4001(a)(3) of ERISA.
(f) The Company has no obligation to provide health benefits
to former employees of the Company, except as specifically required by law.
(g) The Company has complied with all requirements of Part 6
of Title I, Subtitle B of ERISA regarding continuation coverage for group health
plans.
(h) To Seller's knowledge, there is no pending or threatened
claim which alleges any violations of ERISA or any other law, nor any basis for
such a claim by any person, against the Company arising out of Company's
maintenance of any Plan.
4.24 Conduct of Business in Ordinary Course; Adverse Change. Since
December 31, 1998, except for matters caused by the Time Brokerage Agreement:
(a) the Company has conducted the business of the Station only in the ordinary
course consistent with past practices; (b) there has not been any material
adverse change in the business, assets, properties, prospects or condition
(financial or otherwise) of the Company or the Station, or any damage,
destruction, or loss affecting any of the Station Assets; (c) the Company has
not created, assumed, or suffered any mortgage, pledge, lien or encumbrance on
any of the Station Assets, and (d) the Company has not sold, leased, or disposed
or agreed to sell, lease, or dispose of any of its assets or properties other
than in the ordinary course of business, and (e) the Company has not issued any
bonds, notes or other securities or declared any dividends or made any
distribution to its shareholders with respect to the Company Stock.
4.25 Instruments of Conveyance; Good Title. The instruments to be
executed by Seller and delivered to RBI at the Closing, surrendering the Company
Stock to RBI for cancellation, will transfer good and marketable title to the
Company Stock free and clear of all liabilities (absolute or contingent),
security interests, mortgages, pledges, liens, obligations and encumbrances of
any nature.
4.26 Insurance. All of the real and tangible personal property and
other assets of the Company which are of an insurable character are insured by
financially sound and responsible insurance companies against fire and other
risks usually insured against by persons operating similar businesses. A true
and complete list showing all policies of insurance maintained by the Company,
including types of coverage, policy expiration dates, and policy limits, is set
forth in Schedule 4.26 hereto. There has been no change in the information set
forth in such Schedule since the delivery thereof to RBI. If any of the
Company's property is damaged or destroyed prior to Closing, the proceeds of the
insurance therefor will be sufficient to replace, restore or repair the same to
its former condition and utility, except for applicable deductible amounts. The
Company will maintain the insurance set forth in Schedule 4.26 in full force and
effect until Closing.
4.27 Transactions with Certain Persons. The Company does not owe any
amount to, or have any contract with or commitment to, Seller, any of the
Company's directors, officers, employees or consultants, and none of such
persons owes any amount to the Company. No part of
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the property or assets of Seller, or any affiliate of Seller within the meaning
of the federal securities laws, is used by the Company.
4.28 Non-Registration.
(a) Seller understands that the issuance of the Common Stock
of Regent in this transaction is intended to be exempt from registration under
the Securities Act of 1933, as amended (the "1933 Act"), by virtue of Section
4(2) and/or 4(6) of the 1933 Act and the provisions of Regulation D promulgated
thereunder, that the Common Stock of Regent has not been registered under the
1933 Act or under the securities laws of any state, and that Regent will be
under no obligation to effect any such registration.
(b) Seller is acquiring the Common Stock of Regent for his own
account, for investment and not with a view to resale, distribution, or other
disposition, and Seller has no present plans to enter into any contract,
undertaking, agreement or arrangement for any such resale, distribution or other
disposition. Seller understands that the shares of Regent Common Stock to be
issued in this transaction have not been, and will not be, registered under the
1933 Act by reason of a specific exemption from the registration provisions of
the 1933 Act, the availability of which depends upon, among other things, the
bona fide nature of the investment intent and the accuracy of Seller's
representations as expressed herein. Seller will not sell or otherwise transfer
the shares of Regent Common Stock to be issued in this transaction without
registration under the 1933 Act and applicable state securities laws, or
pursuant to an exemption from the registration requirements thereof which, in
the opinion of counsel reasonably acceptable to Regent, is available for the
transaction.
(c) Seller acknowledges that the shares of Regent Common Stock
to be issued in this transaction must be held indefinitely unless subsequently
registered under the 1933 Act or unless an exemption from such registration is
available. Seller is aware of the provisions of Rule 144 promulgated under the
1933 Act which permit limited resale of shares purchased in a private placement
subject to the satisfaction of certain conditions, including, among other
things, the existence of a public market for the shares, the availability of
certain current public information about Regent, the resale occurring not less
than one year after a party has purchased and paid for the security to be sold,
the sale being effected through a "broker's transaction" or in transactions
directly with a "market maker" and the number of shares being sold during any
three-month period not exceeding specified limitations.
(d) Seller is an "accredited investor," as that term is
defined in Rule 501(a) of Regulation D promulgated under the 1933 Act, inasmuch
as Seller meets the requirements of subparagraph (a)(5) of Rule 501.
(e) Seller has had a reasonable opportunity to inspect all
documents, books and records pertaining to Regent and the shares of Regent
Common Stock and confirms that the Common Stock of Regent is being acquired
without Seller's receipt of any offering literature, although Seller confirms he
has received a copy of Regent's Prospectus, dated January 24, 2000, and a list
of exhibits filed with the SEC in connection therewith, all of which will be
supplied to Seller on request.
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(f) Seller has had a reasonable opportunity to ask questions
of and receive answers from a person or persons acting on behalf of Regent
concerning Regent, its business and proposed operations, the terms of the Common
Stock of Regent and all other aspects of investment in Regent, and all such
questions have been answered to the full satisfaction of Seller.
(g) Seller is not acquiring the Common Stock of Regent as a
result of or pursuant to any advertisement, article, notice or other
communication published in any newspaper, magazine, or similar media or
broadcast over television or radio, or presented at any seminar or meeting, or
any solicitation of a subscription by a person other than a representative of
Regent.
(h) Seller has not incurred, and will not incur, directly or
indirectly, as a result of any action taken by Regent or RBI, any liability for
brokerage or finders' fees or agents' commissions or any similar charges in
connection with this Agreement.
(i) Seller understands that the certificate(s) representing
the Common Stock of Regent issued to him shall bear legends in substantially the
following forms, and Seller shall not transfer any of such shares of Common
Stock of Regent, or any interest therein, except in accordance with the terms of
such legends:
"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 proposed transfer is the subject of an effective
registration statement under all applicable Securities Laws."
"The issuer 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."
4.29 Full Disclosure. No representation or warranty made by Seller and
the Company contained in this Agreement nor any certificate, document or other
instrument furnished or to be furnished by Seller or the Company pursuant hereto
contains or will contain any untrue statement of a material fact, or omits or
shall omit to state any material fact required to make any statement contained
herein or therein not misleading. Seller is not aware of any impending or
contemplated event or occurrence that would cause any of the foregoing
representations not to be true and complete on the date of such event or
occurrence as if made on that date.
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* * * * * * *
Whenever in this Article IV a warranty or representation is qualified
by a word or phrase referring to Seller's knowledge or awareness, it shall mean
to the actual knowledge of Seller after he has made due inquiry of the
employees, representatives and agents of the Company who would be expected to
have knowledge of the matter, and with respect to the condition of any Station
Assets, records or other object, after he has inspected it.
ARTICLE V
Covenants of RBI and Regent
5.01 Notification. RBI will provide Seller prompt written notice of any
change in any of the information contained in the representations and warranties
made in Article III. RBI shall also notify Seller of any litigation, arbitration
or administrative proceeding pending or, to its knowledge, threatened against
RBI or Regent which challenges the transactions contemplated hereby.
5.02 No Inconsistent Action. RBI and Regent shall not take any action
which is materially inconsistent with their obligations under this Agreement or
take any action which would cause any representation or warranty of RBI and
Regent contained herein to be or become false or invalid or which could hinder
or delay the consummation of the transactions contemplated by this Agreement.
ARTICLE VI
Covenants of Seller and Company
Seller and the Company covenant and agree with respect to the Company
and the Station that, between the date hereof and the Closing Date or the
earlier termination of this Agreement in accordance with its terms, except as
expressly permitted by this Agreement or with the prior written consent of RBI,
Seller and the Company shall act in accordance with the following:
6.01 Conduct of Business. Subject to time brokering of the Station
pursuant to the Time Brokerage Agreement, the Company shall conduct the business
and operations of the Station only in the ordinary and prudent course of
business consistent with past practice and with the intent of maintaining the
condition of the Station Assets and preserving the ongoing operations and assets
of the Station, including using its reasonable best efforts to retain at the
Station the services of the key employees, consultants and agents of the
Station.
6.02 Compliance with Laws. The Company shall operate the Station in all
respects in accordance with FCC rules and regulations and the Station Licenses
and with all other laws, regulations, rules and orders, and shall not cause or
permit by any act, or failure to act, any of the Station Licenses or other
licenses, permits or authorizations listed in Schedule 4.08 to expire, be
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surrendered, adversely modified, or otherwise terminated, or cause the FCC to
institute any proceedings for the suspension, revocation or adverse modification
of any of the Station Licenses, or fail to prosecute with due diligence any
pending applications to the FCC. Should any fact relating to the Company or
Seller which would cause the FCC to deny its consent to the transactions
contemplated by this Agreement come to Seller's attention, Seller will promptly
notify RBC thereof and will use his reasonable best efforts to take such steps
as may be necessary to remove any such impediment to the FCC's consent to the
transactions contemplated by this Agreement.
6.03 Station Operations. Subject to time brokering of the Station
pursuant to the Time Brokerage Agreement (which provisions shall control over
any inconsistent provision in this Section 6.03) and except for changes or
actions in the ordinary course of business consistent with past practices, the
Company shall not: (a) sell broadcast time on a prepaid basis (other than in the
course of existing credit practices); (b) except as required by the applicable
law or written agreements currently in effect, grant or agree to grant any
general increases in the rates of salaries or compensation payable to employees
of the Company (provided that no such increases to any employee shall in the
aggregate exceed 6% of such employee's compensation as set forth on Schedule
4.04 hereto); (c) provide for any new pension, retirement or other employment
benefits for employees of the Company or any increases in any existing benefits;
(d) modify, change or terminate any Contract; or (e) change the advertising
rates in effect as of the date hereof.
6.04 Access. The Company shall give or cause the Station to give RBI
and RBI's counsel, accountants, engineers and other representatives, at RBI's
reasonable request and upon reasonable notice, full and reasonable access during
normal business hours to all of the Company's personnel, properties, books,
Contracts, reports and records (including, without limitation, financial
information and environmental audits in existence with respect to the Station
Assets), Real Estate, and buildings and equipment, and to furnish RBI with
information and copies of all documents and agreements relating to the Station
and the operation thereof (including but not limited to financial and operating
data and other information concerning the financial condition, results of
operations and business of the Company or the Station) that RBI may reasonably
request. The rights of RBI under this Section 6.04 shall not be exercised in
such a manner as to interfere unreasonably with the business of the Station.
6.05 Consents. Seller and the Company shall give all consents and take
all other actions, and Seller and the Company shall use their reasonable best
efforts to obtain any third party consents, necessary for the merger or the
assignment of any Contract.
6.06 Notification. Seller and the Company will provide RBI prompt
written notice of any change in any of the information contained in the
representations and warranties made in Article IV or any Schedule. Seller and
the Company agree to notify RBI of any litigation, arbitration or administrative
proceeding pending or, to the best of their knowledge, threatened, which
challenges the transactions contemplated hereby. Seller and the Company shall
promptly notify RBI if any of the normal broadcast transmissions of the Station
are interrupted, interfered with or in any way impaired, and shall provide RBI
with prompt written notice of the problem and the measures being taken to
correct such problem. If the Station is not restored so that operation is
resumed to full licensed power and antenna height within five (5) days of such
event, or if more
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than five (5) such events occur within any thirty (30) day period, or if the
Station shall be off the air for more than ninety-six (96) consecutive hours,
then RBI shall have the right to terminate this Agreement.
6.07 No Inconsistent Action. Seller and the Company shall not take any
action which is materially inconsistent with their obligations under this
Agreement nor take any action which would cause any representation or warranty
of Seller and the Company contained herein to be or become false or invalid or
which could hinder or delay the consummation of the transactions contemplated by
this Agreement.
6.08 Closing. Subject to Article IX hereof, on the Closing Date, Seller
shall transfer, convey, assign and deliver to RBI the Company Stock as provided
in Article I of this Agreement.
6.09 Negative Covenants. Except as otherwise specifically contemplated
by this Agreement and subject to time brokering of the Station pursuant to the
Time Brokerage Agreement, until the Closing Date or the earlier termination of
this Agreement in accordance with the terms hereof, neither Seller nor the
Company shall: (a) waive or release any right relating to the business or
operations of the Station, except for adjustments or settlements made in the
ordinary course of business consistent with past practices; (b) transfer or
grant any rights under any of the Station Licenses; (c) enter into any
commitment for capital expenditures; (d) introduce any material changes in the
broadcast hours or in the format of the Station or any other material change in
the Station's programming policies; (e) change the call letters of the Station;
(f) dispose of, lease, sell or encumber, or agree to dispose of, lease, sell or
encumber, any of the Station Assets, except in the ordinary course of business,
or any shares of Company Stock except as contemplated hereby; (g) suffer or
permit the creation of any lien, mortgage, pledge, encumbrance or charge of any
kind on the Company Stock or Station Assets except as specifically referred to
on Schedules 4.11 or 4.12 hereto, except liens for taxes not yet due and
payable; (h) fail to repair, maintain or replace the Company's transmitting,
studio and other technical equipment or fail to maintain reasonable and
customary inventory of equipment, supplies and other tangible personal property
used or useful in the operation of the Station; (i) enter into, extend or renew
any trade deals or sales of broadcast time on the Station except as same are
approved by RBI and except for time sales for cash at the Station's prevailing
rates; (j) assume, guarantee, endorse or otherwise become responsible for the
indebtedness of any other person, firm or corporation except endorsement of
negotiable instruments in the ordinary course of collection; (k) incur any
indebtedness for borrowed money, or make any loans except in the ordinary course
of business, or make any advances; (l) issue, sell, or contract to sell any of
its securities or sell, contract to sell or grant any right or option to
purchase or otherwise acquire, directly or indirectly, any securities, or
redeem, purchase or otherwise acquire any outstanding shares of capital stock;
(m) change, amend or modify the Articles of Incorporation or By-Laws of the
Company; (n) allow to occur or exist any event of default by the Company under
any contract, agreement, arrangement, license, permit, commitment or
understanding, which event of default would have a material adverse affect upon
the business, operations or financial position of the Company; (o) enter into
any transaction or make or enter into any contract or commitment with respect to
the Station or the Station Assets which involves an expenditure after the
Closing Date of in excess of $10,000.00 or otherwise by reason of its size or
otherwise is not in the ordinary course of business consistent with past
practices; (p) cancel, modify, amend or in any manner impair any of the material
Contracts; (q) consolidate with or merge into any other person or entity
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or permit any person or entity to merge or consolidate with it; or (r) declare,
make or incur any liability to make any dividends or other distributions on the
Company Stock.
6.10 Exclusivity. Seller and the Company agree that, commencing on the
date hereof through the Closing or earlier termination of this Agreement, RBI
shall have the exclusive right to consummate the merger contemplated herein, and
during such exclusive period, Seller and the Company agree that neither Seller,
nor any director, officer, employee or other representative of the Company: (a)
will initiate, solicit or encourage, directly or indirectly, any inquiries, or
the making or implementation of any proposal or offer with respect to a merger,
acquisition, consolidation or similar transaction involving, or any purchase of,
all or any portion of the Company Stock or Station Assets (any such inquiry,
proposal or offer being hereinafter referred to as an "Acquisition Proposal" and
any such transaction being hereinafter referred to as an "Acquisition"); (b)
will engage in any negotiations concerning, or provide any confidential
information or data to, or have any discussions with, any person relating to an
Acquisition Proposal, or otherwise facilitate any effort or attempt to make or
implement an Acquisition Proposal; or (c) will continue any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any Acquisition Proposal or Acquisition and will take the necessary steps to
inform the individuals or entities referred to above of the obligations
undertaken by them in this Section 6.10. Notwithstanding the foregoing, in the
event that RBI and Regent default in any material respect in the observance or
in the due and timely performance of any of its covenant or agreements herein
contained and such default shall not be cured within thirty (30) days of notice
of default served by Seller, Seller's and the Company's obligations under this
Section 6.10 shall be null and void.
ARTICLE VII
Joint Covenants
The parties hereto covenant and agree that between the date hereof and
the Closing Date, they shall act in accordance with the following:
7.01 Confidentiality. Subject to the requirements of applicable law,
RBI, Regent, and Seller shall each keep confidential all information obtained by
them in connection with this Agreement and the negotiations preceding this
Agreement, and will use such information solely in connection with the
transactions contemplated by this Agreement, and if the transactions
contemplated hereby are not consummated for any reason, each shall return to
each other party hereto, without retaining a copy thereof, any schedules,
documents or other written information obtained from such other party in
connection with this Agreement and the transactions contemplated hereby.
Notwithstanding the foregoing, no party shall be required to keep confidential
or return any information which: (a) is known or available through other lawful
sources, not bound by a confidentiality agreement with the disclosing party; (b)
is or becomes publicly known through no fault of the receiving party or its
agents; (c) is required to be disclosed pursuant to an order or request of a
judicial or governmental authority (provided the disclosing party is given
reasonable prior notice of the order or request and the purpose of the
disclosure); or (d) is developed by the receiving party independently of the
disclosure by the disclosing party. Notwithstanding anything to the contrary
herein, either party may in accordance with its legal
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obligations, including but not limited to filings permitted or required by the
Securities Act of 1933 and the Securities and Exchange Act of 1934, the NASDAQ
National Market and other similar regulatory bodies, make such press releases
and other public statements and announcements as it deems necessary and
appropriate in connection with this Agreement and the transactions contemplated
hereby; provided, however, that prior to making any such unilateral press
release or announcement, such party shall first communicate the same in writing
to the other.
7.02 Cooperation. Subject to express limitations contained elsewhere
herein, RBI, Regent, and Seller agree to cooperate fully in taking any
reasonable actions (including without limitation, reasonable actions to obtain
the required consent of any governmental instrumentality or any third party)
necessary or helpful to accomplish the transactions contemplated by this
Agreement, including but not limited to the satisfaction of any condition to
closing set forth herein.
7.03 Control of Station. Subject to time brokering of the Station
pursuant to the Time Brokerage Agreement, RBI and Regent shall not, directly or
indirectly, control, supervise or direct the operations of the Station prior to
the Closing. Such operations, including complete control and supervision of all
Station programs, employees and policies, shall be the sole responsibility of
Seller and the Company.
ARTICLE VIII
Conditions of Closing by RBI and Regent
The obligations of RBI and Regent hereunder are, at their option,
subject to satisfaction, at or prior to the Closing Date, of each of the
following conditions:
8.01 Representations, Warranties and Covenants.
(a) All representations and warranties of Seller and the
Company made in this Agreement or in any Exhibit, Schedule or document delivered
pursuant hereto, shall be true and complete in all respects as of the date
hereof and on and as of the Closing Date as if made on and as of that date,
except for changes (a) expressly permitted or contemplated by the terms of this
Agreement, (b) caused by the acts of RBI during the term of the Time Brokerage
Agreement, or (c) in the ordinary course of business which are not, either in
individually or in the aggregate, material and adverse.
(b) All of the terms, covenants, agreements, and conditions to
be complied with and performed by Seller or the Company on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
(c) RBI shall have received a certificate, dated as of the
Closing Date, from Seller and the Company, executed by the President of the
Company to the effect that: (a) except for changes occurring as a result of
actions by Regent Broadcasting of Chico, Inc. under the Time Brokerage
Agreement, the representations and warranties of Seller and the Company
contained in this Agreement are true and complete in all material respects on
and as of the Closing Date as if
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made on and as of that date; and (b) Seller and the Company have complied with
or performed in all material respects all terms, covenants, agreements, and
conditions to be complied with or performed by them on or prior to the Closing
Date.
8.02 Governmental Consents. The FCC Consent shall have been obtained
and, subject to the provisions of Section 1.15 hereof, shall have become a Final
Order.
8.03 Governmental Authorizations. The Company shall be the holder of
the Station Licenses and all other licenses, permits and other authorizations
listed in Schedule 4.08, and there shall not have been any modification of any
of such licenses, permits and other authorizations which has a material adverse
effect on the Station or the operations thereof. No proceeding shall be pending
which seeks, or the effect of which reasonably could be, to revoke, cancel, fail
to renew, suspend or adversely modify any of the Station Licenses or any other
licenses, permits or other authorizations listed in Schedule 4.08. The Station
shall not be operating under any special temporary authority from the FCC.
8.04 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending or threatened against, and no order, decree or
judgment of any court, agency or other governmental authority shall have been
rendered (and remain in effect) against, any party hereto which: (a) would
render it unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms; (b) questions the
validity or legality of any transaction contemplated hereby; (c) seeks to enjoin
any transaction contemplated hereby; (d) seeks material damages on account of
the consummation of any transaction contemplated hereby; or (e) is a petition of
bankruptcy by or against the Company, an assignment by the Company for the
benefit of its creditors, or other similar proceeding.
8.05 Third-Party Consents. All material Contracts shall be in full
force and effect on the Closing Date, and Seller and the Company shall have
obtained and shall have delivered to RBI all appropriate third-party consents in
form and substance acceptable to RBI (including estoppel certificates reasonably
requested by RBI) in connection with any material Contracts, compliance with
requirements of Regent's senior lender, the surrender of the Company Stock to
RBI, or the delivery of the Common Stock of Regent to Seller.
8.06 Closing Documents. Seller shall have delivered or caused to be
delivered to RBI, on the Closing Date, all stock powers, endorsements,
assignments and other instruments of conveyance reasonably satisfactory in form
and substance to RBI, effecting the sale, transfer, assignment and conveyance
of, and release of all claims to dividends or other distributions, whether
declared or undeclared, on the Company Stock to RBI, including, without
limitation, each of the documents required to be delivered by them pursuant to
Article XI.
8.07 Time Brokerage Agreement Compliance. The Time Brokerage Agreement
shall not have been terminated by Regent Broadcasting of Chico, Inc. as
permitted by the Time Brokerage Agreement as a result of the Company's material
noncompliance with its obligations under the Time Brokerage Agreement.
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8.08 No Adverse Change. No material adverse change in condition or,
status of the Company or the Station Assets, which change is not caused by or
does not arise out of, any breach by RBI of any of its representations,
warranties, covenants or agreements hereunder or by Regent Broadcasting of
Chico, Inc. under the Time Brokerage Agreement, shall have occurred since
December 31, 1998, be threatened or be reasonably likely to occur.
8.09 Satisfactory Investigation of Station Facilities. RBI shall have
conducted such examination and investigation of the Real Estate and title
thereto, studios, transmitter facilities, and other Station Assets and personnel
on matters covered by or generally within the scope of Seller's and the
Company's warranties and representations as RBI deems advisable or appropriate
pursuant to Section 6.04 and shall have determined that the findings and results
of such examination and investigation are satisfactory in its sole discretion.
If RBI does not advise Seller and the Company in writing within twenty-one (21)
days after the date of this Agreement of any unsatisfactory findings or results,
this condition shall be deemed waived. If RBI does advise Seller and the Company
of any unsatisfactory findings or results, and such are capable of being cured
by Seller or the Company to RBI's reasonable satisfaction, Seller and the
Company shall have the right to cause the same to be cured to RBI's reasonable
satisfaction prior to Initial Approval.
8.10 Environmental Studies. RBI shall have obtained within sixty (60)
days following the date of this Agreement Phase I environmental assessment
reports on the Real Estate confirming the representations and warranties of
Seller and the Company on environmental matters; provided, however, if RBI
elects not to obtain such environmental reports, RBI shall be deemed to have
waived the condition of Closing contained in this Section 8.10.
ARTICLE IX
Conditions of Closing by Seller
The obligations of Seller and the Company hereunder are, at their
option, subject to satisfaction, at or prior to the Closing Date, of each of the
following conditions:
9.01 Representations, Warranties and Covenants.
(a) All representations and warranties of RBI and Regent made
in this Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, shall be true and complete in all material respects as of the date
hereof and on and as of the Closing Date as if made on and as of that date,
except for changes expressly permitted or contemplated by the terms of this
Agreement.
(b) All the terms, covenants, agreements, and conditions to be
complied with and performed by RBI and Regent on or prior to the Closing Date
shall have been complied with or performed in all material respects.
(c) Seller shall have received a certificate, dated as of the
Closing Date, executed by the President of RBI and Regent to the effect that:
(i) the representations and
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warranties of RBI and Regent contained in this Agreement are true and complete
in all material respects on and as of the Closing Date as if made on and as of
that date; and (ii) RBI and Regent have complied with or performed in all
material respects all terms, covenants, agreements and conditions to be complied
with or performed by it on or prior to the Closing Date.
9.02 Governmental Consents. The FCC Consent shall have been obtained
and, subject to the provisions of Section 1.15 hereof, shall have become a Final
Order.
9.03 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending or threatened against, and no other decree or
judgment of any court, agency or other governmental authority shall have been
rendered (and remain in effect) against, any party hereto which: (a) would
render it unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms; (b) questions the
validity or legality of any transaction contemplated hereby; (c) seeks to enjoin
any transaction contemplated hereby; or (d) seeks material damages on account of
the consummation of any transaction contemplated hereby.
9.04 Closing Documents. RBI shall have delivered or caused to be
delivered to Seller, on the Closing Date, the Merger Consideration and each of
the documents required to be delivered by it pursuant to Article XI.
ARTICLE X
Transfer Taxes: Fees and Expenses
10.01 Expenses. Except as set forth in Section 10.02 hereof or
otherwise expressly set forth in this Agreement, each party hereto shall be
solely responsible for all costs and expenses incurred by it in connection with
the negotiation, preparation and performance of and compliance with the terms of
this Agreement including, but not limited to, the costs and expenses incurred
pursuant to Article II hereof and the fees and disbursements of counsel and
other advisors.
10.02 Specific Charges. All costs of transferring the Company Stock in
accordance with this Agreement, including any income, transfer and documentary
taxes and fees, shall be paid by Seller. Any filing or grant fees imposed by any
governmental authority, the consent of which or the filing with which is
required for the consummation of the transactions contemplated hereby, shall be
by RBI and Regent.
ARTICLE XI
Documents To Be Delivered At Closing
11.01 Documents of Seller and the Company. At the Closing, Seller and
the Company shall deliver or cause to be delivered to RBI the following:
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(a) Resignation of all directors and officers of the Company
effective on the Closing Date;
(b) A certificate of Seller and the Company, dated the Closing
Date, in the form described in Section 8.01(c);
(c) Governmental certificates showing that the Company: (i) is
duly incorporated and in good standing in the state of its incorporation; and
(ii) has filed all returns, paid all taxes due thereon and is currently subject
to no assessment and is in good standing as a foreign corporation in each state
where such qualification is necessary, each certified as of a date not more than
thirty (30) days before the Closing Date;
(d) Such certificates, stock powers (executed in blank with
signatures guaranteed), assignments, documents of title and other instruments of
conveyance, assignment and transfer (including without limitation any necessary
consents to conveyance, assignment or transfer), and lien releases, if any, all
in form satisfactory to RBI and RBI's counsel, as shall be effective to vest in
RBI title in and to the Company Stock, free, clear and unencumbered in
accordance with the terms of this Agreement.
(e) The Indemnification Escrow Agreement;
(f) A written opinion of ▇▇▇▇▇▇ ▇▇▇▇, Esq., Marshall,
Burghardt, ▇▇▇▇▇▇ & Harp, counsel for the Seller and the Company, on which
Regent's lenders and affiliates shall be entitled to rely, in the form of
Exhibit C, dated as of the Closing Date;
(g) Updating title insurance endorsements on all title
insurance policies on the Real Estate held by the Company in form and substance
reasonably satisfactory to RBI; and
(h) the Non-Competition Agreement in the form of Exhibit D,
executed by Seller;
(i) the Consulting Agreement in the form of Exhibit F,
executed by Seller; and
(j) Such additional information, materials, agreements,
documents and instruments as RBI, its counsel, or its senior lender may
reasonably request in order to consummate the Closing.
11.02 RBI's Documents. At the Closing, RBI shall deliver or cause to be
delivered
(a) Certified resolutions of the Board of Directors of RBI and
Regent approving the execution and delivery of this Agreement and authorizing
the consummation of the transactions contemplated hereby;
(b) A certificate of RBI and Regent, dated the Closing Date,
in the form described in Section 9.01(c);
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(c) The Indemnification Escrow Agreement;
(d) A written opinion of RBI's counsel in the form of Exhibit
E, dated as of the Closing Date;
(e) The Merger Consideration in accordance with Section 1.14
hereof;
(f) All necessary consents to the issuance by Regent of the
Common Stock of Regent;
(g) The Non-Competition Agreement in the form of Exhibit D,
executed by RBI;
(h) The Consulting Agreement in the form of Exhibit F,
executed by RBI; and
(i) Such additional information, materials, agreements,
documents and instruments as Seller and its counsel may reasonably request in
order to consummate the Closing.
ARTICLE XII
Survival; Indemnification: Etc.
12.01 Survival of Representations, Etc. It is the express intention and
agreement of the parties to this Agreement that all covenants in Articles V, VI,
and VII ("Covenants") and all representations and warranties (together,
"Warranties") made in this Agreement shall survive the Closing (regardless of
any knowledge, investigation, audit or inspection at any time made by or on
behalf of any of the parties) as follows:
(a) The Covenants in Sections 6.08, 7.01 and 7.02 and any
other agreements not specifically addressed in this Section 12.01 shall survive
the Closing for a period from the Closing Date equal to the statute of
limitations for written contracts in California.
(b) The Warranties in Sections 3.02, 4.01, 4.02, 4.05, 4.06
shall survive the Closing without limitation.
(c) The Warranties in Section 4.10 or otherwise relating to
the federal, state, local or foreign tax obligations of Seller or the Company
and in Section 4.14 shall survive the Closing for the period of the applicable
statute of limitations plus any extensions or waivers granted or imposed with
respect thereto.
(d) All other Covenants and Warranties shall survive until
June 30, 2001 or until thirty (30) days after such time as Regent's outside
public accounting firm has released its annual audit of the financial statements
applicable to the Station for the period ending December 31, 2000, whichever is
earlier.
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(e) The right of any party to recover Damages (as defined in
Section 12.02(a))pursuant to Section 12.02 shall not be affected by the
expiration of any Covenants or Warranties as set forth herein, provided that
notice of the existence of any damages (but not necessarily the fixed amount of
any such damages) has been given by the indemnified party to the indemnifying
party prior to such expiration. The survival of a Covenant shall not extend the
period to which the Covenant applies, but merely establishes the time by which
notice of a claim of breach may be given.
(f) All claims for monetary damages in connection with this
Agreement and the transactions contemplated hereby shall be brought pursuant to,
and subject to the limitations of, this Article XII, and no such claim may be
brought except pursuant to, and subject to the limitations of, this Article XII.
(g) Notwithstanding any provision hereof to the contrary,
there shall be no contractual time limit in which any party may bring any action
for actual fraud (a "Fraud Action'), regardless of whether such actual fraud
also included a breach of any Covenant or Warranty; provided, however, that any
Fraud Action must be brought within the period of the applicable statute of
limitations plus any extensions or waivers granted or imposed with respect
thereto.
12.02 Indemnification.
(a) Seller shall defend, indemnify and hold harmless RBI and
its Affiliates from and against any and all losses, costs, damages, liabilities
and expenses, including reasonable attorneys' fees and expenses ('Damages')
incurred by RBI and its Affiliates and Regent arising out of or related to: (i)
any breach of the Warranties given or made by Seller or the Company in this
Agreement; (ii) any breach of the Covenants or other agreements made by Seller
or the Company in the Agreement; (iii) Liabilities of the Company incurred as a
result of the operation of the Company and the Station for the period ended on
the day preceding the Closing Date; and (iv) income taxes of the Company for the
period ended on the day prior to the Closing Date except to the extent such
taxes are offset by existing net loss carryovers.
Notwithstanding the foregoing provisions of this Section 12.02(a),
Seller shall have no obligation to defend, indemnify and hold harmless RBI and
Regent for Damages arising out of any matter described in clause (a)(i) of the
immediately preceding paragraph unless the aggregate Damages on account thereof
exceed $15,000, and the maximum liability of Seller hereunder for Damages shall
be equal to the Final Merger Consideration.
(b) RBI and Regent shall defend, indemnify and hold harmless
Seller from and against any and all Damages incurred by Seller arising out of or
related to: (i) any breach of the Covenants, other agreements, and Warranties
given or made by RBI and Regent in this Agreement; (ii) all federal, state and
local tax liabilities of the Company arising and relating to operation of the
Station on and after the Closing Date; and (iii) any loss or damage arising out
of any Liability of Company incurred or the result of the operation of the
Company and Station on and after the Closing Date or which have been included in
the Closing Report and as to which RBI and Regent have received an adjustment of
the Merger Consideration in their favor hereunder in accordance with Section
1.12.
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(c) Procedures: Third Party and Direct Indemnification Claims.
The indemnified party agrees to give written notice within a reasonable time to
the indemnifying party of any demand, suit, claim or assertion of liability by
third parties or other circumstances that could give rise to an indemnification
obligation hereunder against the indemnifying party, providing a description of
the nature and amount of the claim (hereinafter collectively 'Claims," and
individually a "Claim'), it being understood that the failure to give such
notice shall not affect the indemnified party's right to indemnification and the
indemnifying party's obligation to indemnify as set forth in this Agreement,
unless the indemnifying party's ability to contest, defend or settle with
respect to such Claim is thereby demonstrably and materially prejudiced. The
parties agree that any claim for Damages arising directly between the parties
relating to this Agreement may be brought at any time within the applicable
survival period specified in Section 12.01, and that the only notice required
with respect thereto shall be as specified in Section 12.01(c). Seller and RBI
each irrevocably submits to the nonexclusive jurisdiction of any state or
federal court sitting in San Francisco, California over any suit, action or
proceeding arising out of or relating to this Agreement and irrevocably agrees
that all claims in respect of such action or proceeding may be heard and
determined in such court. Each party to this Agreement hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding.
The obligations and liabilities of the parties hereto with respect to
their respective indemnities pursuant to this Section 12.02 resulting from any
Claim shall be subject to the following additional terms and conditions:
(i) The indemnifying party shall have the right to
undertake, by counsel or other representatives of its own choosing, the defense
or opposition to such Claim.
(ii) In the event that the indemnifying party shall
elect not to undertake such defense or opposition, or within ten (10) days after
notice of any such Claim from the indemnified party shall fail to defend or
oppose, the indemnified party (upon further written notice to the indemnifying
party) shall have the right to undertake the defense, opposition, compromise or
settlement of such Claim, by counsel or other representatives of its own
choosing, on behalf of and for the account and risk of the indemnifying party
(subject to the right of the indemnifying party to assume defense of or
opposition to such Claim at any time prior to settlement, compromise or final
determination thereto).
(d) Anything this Section 12.02 to the contrary
notwithstanding: (i) the indemnified party shall have the right, at its own cost
and expense, to participate in the defense, opposition, compromise or settlement
of the Claim; (ii) the indemnifying party shall not, without the indemnified
party's written consent, settle or compromise any Claim or consent to entry of
any judgment which does not include as an unconditional term thereof the giving
by the claimant or the plaintiff to the indemnified party of a release from all
liability in respect of such Claim, and (iii) in the event that the indemnifying
party undertakes defense of or opposition to any Claim the indemnified party, by
counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the indemnifying party and its
counsel or other representatives concerning such Claim and the indemnifying
party and the indemnified party, and
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their respective counsel or other representatives, shall cooperate in good faith
with respect to such Claim.
(e) No undertaking of defense or opposition to a Claim shall
be construed as an acknowledgment by such party that it is liable to the party
claiming indemnification with respect to the Claim at issue or other similar
Claims.
ARTICLE XIII
Termination Rights
13.01 Termination. This Agreement may be terminated at any time prior
to Closing as follows:
(a) Upon the mutual written consent of RBI and Seller, this
Agreement may be terminated on such terms and conditions as so agreed; or
(b) By written notice of RBI to Seller if Seller or the
Company breaches in any material respect any of his/its representations or
warranties or defaults in any material respect in the observance or in the due
and timely performance of any of his covenants or agreements herein contained
and such breach or default shall not be cured within thirty (30) days of the
date of notice of breach or default served by RBI; or
(c) By written notice of Seller or the Company to RBI if RBI
and Regent breach in any material respect any of their representations or
warranties or default in any material respect in the observance or in the due
and timely performance of any of their covenants or agreements herein contained
and such breach or default shall not be cured within thirty (30) days of the
date of notice of breach or default served by Seller or the Company; or
(d) By written notice of any party if any condition to the
obligation to perform this Agreement of the party seeking to terminate has not
been satisfied or complied with by the Closing Date or the date specified herein
for such satisfaction or compliance, and such inaccuracy, failure of performance
or non-satisfaction of or compliance with a condition, if capable of being
cured, has not been cured within thirty (30) days after written demand therefor,
or has not been waived by the party seeking to terminate this Agreement; or
(e) By written notice of RBI to Seller if the FCC denies the
FCC Application; and by written notice of Seller to RBI if the FCC denies the
FCC Application under circumstances in which Seller is not entitled to delivery
of the Escrow Deposit; or
(f) By written notice of RBI to Seller, or by Seller to RBI,
if any court of competent jurisdiction shall have issued an order, decree or
ruling (which then remains in effect) or taken any other action restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement, or by RBI, if any court, legislative body or governmental or
regulatory authority has taken, or is reasonably expected to take, action that
would prohibit the consummation of the
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transactions contemplated hereby in accordance with the terms of the this
Agreement, as determined by RBI in its sole discretion reasonably exercised; or
(g) By written notice of RBI to Seller, or by Seller to RBI,
if the Closing shall not have been consummated on or before October 31, 2000; or
(h) By written notice of RBI to Seller if it shall become
apparent in the judgment of RBI and Seller reasonably exercised that any
condition to RBI's obligation to close as set forth in Article VIII hereof will
not be satisfied on or before October 31, 2000; or
(i) By written notice of RBI to Seller under the conditions
set forth in Sections 6.06 or 14.13 hereof; or
(j) By written notice of RBI to Seller in the event Regent
Broadcasting of Chico, Inc. has terminated the Time Brokerage Agreement pursuant
to Section 17 thereof; or
(k) By written notice of RBI to Seller, or by Seller to RBI,
in the event of (i) a termination of the Time Brokerage Agreement by the
notifying party pursuant to Section 16.3 thereof or (ii) a termination of the
Time Brokerage Agreement pursuant to Section 19 thereof if such termination of
the Time Brokerage Agreement has a material adverse effect on such party's
ability to complete the transactions contemplated hereunder.
Notwithstanding the foregoing, no party hereto may effect a termination
hereof if such party is in material default or breach of this Agreement. If this
Agreement is terminated, RBI and its Affiliates shall not, except as
contemplated by the Time Brokerage Agreement, solicit or attempt to employ any
person who is an officer or employee of the Company as of the date of this
Agreement for a period of six (6) months after the effective date of such
termination.
13.02 Liability. Except as set forth in Section 13.04 below, the
termination of this Agreement under Section 13.01 shall not relieve any party of
any liability for breach of this Agreement prior to the date of termination.
13.03 Monetary Damages, Specific Performance and Other Remedies. The
parties recognize that if the Company or Seller refuses to perform under the
provisions of this Agreement, monetary damages alone will not be adequate to
compensate RBI for its injury. RBI shall therefore be entitled to obtain
specific performance of the terms of this Agreement in addition to any other
remedies, including but not limited to monetary damages (which would include an
amount equal to at least the amount of the Escrow Deposit), that may be
available to it. If any action is brought by RBI to enforce this Agreement,
Seller and the Company shall waive the defense that there is an adequate remedy
at law. In the event of a default by Seller or the Company, which results in the
filing of a lawsuit for damages, specific performance, or other remedy, the
prevailing party in such action shall be entitled to reimbursement by the other
of reasonable legal fees and expenses incurred by the prevailing party.
13.04 SELLER'S AND COMPANY'S LIQUIDATED DAMAGES. AS MORE FULLY
DESCRIBED IN THE DEPOSIT ESCROW AGREEMENT, IN
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THE EVENT THIS AGREEMENT IS TERMINATED PURSUANT TO SECTION 13.01(C) BECAUSE OF A
MATERIAL BREACH OF THIS AGREEMENT BY RBI AND ALL OTHER CONDITIONS TO CLOSING ARE
AT SUCH TIME SATISFIED OR WAIVED (OTHER THAN SUCH CONDITIONS AS CAN READILY BE
SATISFIED BY CLOSING), THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER AND
THE COMPANY, AND THE CASH OR PROCEEDS FROM A DRAW ON THE LETTER OF CREDIT SHALL
CONSTITUTE LIQUIDATED DAMAGES. IT IS UNDERSTOOD AND AGREED THAT SUCH LIQUIDATED
DAMAGES AMOUNT REPRESENTS THE REASONABLE ESTIMATE OF ACTUAL DAMAGES AND DOES NOT
CONSTITUTE A PENALTY. RECOVERY OF LIQUIDATED DAMAGES SHALL BE THE SOLE AND
EXCLUSIVE REMEDY OF SELLER AGAINST RBI AND REGENT AND ANY OF THEIR AFFILIATES
FOR FAILING TO CONSUMMATE THIS AGREEMENT AS A RESULT OF A MATERIAL BREACH
HEREOF, AND SHALL BE APPLICABLE REGARDLESS OF THE ACTUAL AMOUNT OF DAMAGES
SUSTAINED AND ALL OTHER REMEDIES ARE DEEMED WAIVED BY SELLER AND THE COMPANY.
ARTICLE XIV
Miscellaneous Provisions
14.01 Brokerage. The parties represent and warrant that no broker or
finder was employed, appointed or authorized by any of them in connection with
the transactions contemplated by this Agreement. Each hereby agree to indemnify
and hold the others harmless from and against any and all other liabilities with
respect thereto.
14.02 Certain Interpretive Matters and Definitions. Unless the context
otherwise requires: (a) all references to Sections, Articles, Schedules or
Exhibits are to Sections, Articles, Schedules or Exhibits of or to this
Agreement; (b) each term defined in this Agreement has the meaning assigned to
it; (c) each accounting term not otherwise defined in this Agreement has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect on the date hereof, (d) "or" is disjunctive but not
necessarily exclusive; (e) words in the singular include the plural and vice
versa; (f) the term "Affiliate" has the meaning given it in Rule 12b-2 of
Regulations 12B under the Securities Exchange Act of 1934, as amended; and (g)
all references to "$" or dollar amounts will be to lawful currency of the United
States of America.
14.03 Further Assurances. After the Closing, Seller shall from time to
time, at the request of and without further cost or expense to RBI, execute and
deliver such other instruments of conveyance and transfer and take such other
actions as may reasonably be requested in order more effectively to consummate
the transactions contemplated hereby to vest in RBI good title to the Company
Stock being transferred hereunder in accordance with the terms hereof, and RBI
and Regent shall from time to time, at the request of and without further cost
or expense to Seller,
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execute and deliver such other instruments and take such other actions as may
reasonably be requested in order to more effectively consummate the transaction
contemplated hereby for the benefit of Seller.
14.04 Benefit and Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective, heirs,
executors, administrators, successors and permitted assigns. Seller may not
voluntarily or involuntarily assign his interest under this Agreement without
the prior written consent of RBI. RBI shall have the right to assign and/or
delegate all or any portion of its rights and obligations under this Agreement,
including without limitation assignments as collateral, provided that no such
assignment and/or delegation shall relieve RBI of its obligations hereunder in
the event that its assignee fails to perform the obligations delegated. All
covenants, agreements, statements, representations, warranties and indemnities
in this Agreement by and on behalf of any of the parties hereto shall bind and
inure to the benefit of their respective successors and permitted assigns of the
parties hereto. In the event RBI finds it necessary or is required to provide to
a third party a collateral assignment of the RBI's interest in this Agreement
and/or any related documents, Seller and the Company shall cooperate with the
RBI and any third party requesting such assignment including but not limited to
signing or delivering a consent and acknowledgment of such assignment.
14.05 Amendments. No amendment, waiver of compliance with any provision
or condition hereof or consent pursuant to this Agreement shall be effective
unless evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension or discharge is sought.
14.06 Headings. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
14.07 Governing Law. The construction and performance of this Agreement
shall be governed by the laws of the State of California without giving effect
to the choice of law provisions thereof.
14.08 Notices. Any notice, demand or request required or permitted to
be given under the provisions of this Agreement shall be in writing, including
by facsimile, and shall be deemed to have been duly delivered and received on
the date of personal delivery, on the third day after deposit in the U.S. mail
if mailed by registered or certified mail, postage prepaid and return receipt
requested, on the day after delivery to a nationally recognized overnight
courier service if sent by an overnight delivery service for next morning
delivery or when dispatched by facsimile transmission (with the facsimile
transmission confirmation being deemed conclusive evidence of such dispatch) and
shall be addressed to the following addresses, or to such other address as any
party may request, in the case of Seller or the Company, by notifying RBI, and
in the case of RBI and Regent, by notifying Seller:
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To Seller or the Company: ▇▇▇▇ ▇▇▇▇▇
KZAP Radio
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
Marshall, Burghardt, ▇▇▇▇▇▇ & ▇▇▇▇
Suite 2
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To RBI and Regent: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
Regent Communications, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇
The Federal Reserve Building
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
14.09 Counterparts. This Agreement may be executed in one or more
counterparts and by facsimile, each of which will be deemed an original and all
of which together will constitute one and the same instrument.
14.10 No Third Party Beneficiaries. Nothing herein expressed or implied
is intended or shall be construed to confer upon or give to any person or entity
other than the parties hereto and their successors or permitted assigns any
rights or remedies under or by reason of this Agreement.
14.11 Severability. The parties agree that if one or more provisions
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any, applicable law, this Agreement shall be
construed with the invalid, illegal or unenforceable
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provision deleted, and the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected or impaired thereby.
4.12 Entire Agreement. This Agreement and the schedules and exhibits
hereto embody the entire agreement and understanding of the parties hereto and
supersede any and all prior agreements, arrangements and understandings relating
to the matters provided for herein.
14.13 Risk of Loss. The risk of any loss, damage or destruction to any
of the Station Assets from fire or other casualty or cause shall be borne by the
Seller and the Company at all times prior to the Closing hereunder. Upon the
occurrence of any loss or damage to any material property or assets of the
Company as a result of fire, casualty or other causes prior to Closing, Seller
shall notify RBI of same in writing immediately stating with particularity the
extent of such loss or damage incurred, the cause thereof if known and the
extent to which restoration, replacement and repair of the Station Assets lost
or destroyed will be reimbursed under and insurance policy with respect thereto.
In the event that the loss or damage exceeds One Hundred Thousand Dollars
($100,000.00) and the property is not substantially repaired, replaced or
restored prior to the Closing Date, the Closing Date shall be extended for a
period of up to ninety (90) days to permit the repair, replacement or
restoration of the property by Seller and Company, and in the further event that
it is not so repaired, replaced or restored within such sixty (60) day period,
RBI, at its option, may, upon written notice to Seller:
(a) terminate this Agreement; or
(b) postpone the Closing Date for an additional period of up
to sixty (60) days until such time that the property has been substantially
repaired, replaced or restored; or
(c) elect to consummate the Closing and accept the property in
its "then" condition, and Seller shall reimburse RBI for any deductible portion
of the insurance coverage of Company. In the event of postponement of Closing
hereunder, Seller, Company and Regent shall join in any necessary requests of
the FCC to extend the time of the effective period of the FCC's consent. RBI may
also at its option elect to consummate the Closing pursuant to this Subsection
(c) prior to the initial sixty (60) day extension of the Closing Date.
14.14 Time Brokerage Agreement. Prior to the execution hereof, the
Company has entered into with Regent Broadcasting of Chico, Inc. a Time
Brokerage Agreement pursuant to which the Company is making available to Regent
Broadcasting of Chico, Inc. the broadcasting transmission facilities to the
Station and/or causing to be broadcast on the Station programming provided by
Regent Broadcasting of Chico, Inc. from the Commencement Date (as defined in the
Time Brokerage Agreement) during the term thereof. An Event of Default by either
party under the Time Brokerage Agreement shall constitute a material default
under this Agreement and insofar as the cure period specified in the Time
Brokerage Agreement has expired with respect to the default, no further cure
period shall be afforded under the provisions of this Agreement.
14.15 Definitions. The following capitalized terms used in this
Agreement shall have the following meanings:
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(a) "Contracts" means all contracts, agreements, leases and
legally binding contractual rights of the Company of any kind, written or oral,
relating to the Company or the operations of the Station and which are listed on
Schedule 4.13.
(b) "Station Licenses" means all licenses, permits and other
authorizations issued to the Company by any governmental or regulatory authority
including without limitation those issued by the FCC used or useful in
connection with the operation of the Station, including but not limited to those
described in Schedule 4.08, along with renewals, modifications, or applications
relating to such items between the date hereof and the Closing Date;
(c) "Station Assets" means all of the assets, properties,
interests and rights of the Company of whatsoever kind and nature, real and
personal, tangible and intangible, owned or leased (to the extent of the
Company's leasehold interest) by the Company as the case may be, wherever
situated, which are used or held for use in the operation of the Station,
including but not limited to all of the Company's right, title and interest in
and to:
(i) the Station Licenses;
(ii) all equipment, electrical devices, antennae,
cables, tools, hardware, office furniture and fixtures, office materials and
supplies, inventory, motor vehicles, spare parts and all other tangible personal
property of every kind and description, and the Company's rights therein, owned,
leased (to the extent of the Company's leasehold interest) or held by the
Company and used or useful in connection with the operations of the Station,
including but not limited to those items described or listed in Schedule 4.11,
together with any replacements thereof and additions thereto, made between the
date hereof and the Closing Date, and less any retirements or dispositions
thereof made between the date hereof and the Closing Date in the ordinary course
of business and consistent with past practices of the Company; provided,
however, the Company agrees that the value of all such assets retired or
disposed of and not replaced with an asset of like kind and quality shall not
exceed $5,000 in the aggregate unless Seller has obtained the prior written
approval of RBI which shall not be unreasonably withheld;
(iii) the Contracts and all Time Sales Agreements (as
defined in the Time Brokerage Agreement);
(iv) all of the Company's rights in and to the call
letters listed on Schedule 4.15, and any variation thereof, as well as all of
the Company's rights in and to all trademarks, trade names, service marks,
franchises, copyrights, including registrations and applications for
registration of any of them, computer software programs and programming material
of whatever form or nature, jingles, slogans, the Station's logos and all other
logos or licenses to use same and all other intangible property rights of the
Company, which are used or useful in connection with the operation of the
Station, including but not limited to those listed in Schedule 4.15
(collectively, the "Intellectual Property") together with any associated
goodwill and any additions thereto between the date hereof and the Closing Date;
(v) all programming materials and elements of whatever
form or nature owned by the Company, whether recorded on tape or other medium or
intended for live
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performance, and all copyrights owned by or licensed to the Company that are
used or useful in connection with the operation of the Station, including all
such programs, materials, elements and copyrights acquired by the Company
between the date hereof and the Closing Date;
(vi) all of the Company's rights in and to all the
files, documents, records, and books of account relating to the operation of the
Station or to the Station Assets, including, without limitation, the Station's
local public files, programming information and studies, blueprints, technical
information and engineering data, news and advertising studies or consulting
reports, marketing and demographic data, sales correspondence, lists of
advertisers, promotional materials, credit and sales reports and filings with
the FCC, logs, software programs and books and records relating to employees,
financial, accounting and operation matters.
(vii) the Company's corporate minute books and records,
corporate stock record books and such other books and records as pertain to the
organization, existence or share capitalization of the Company;
(viii) all claims and causes of action, including all
contracts of insurance, and insurance process or claims made by, the Company
relating to property or equipment repaired, replaced or restored by the Company
prior to the Closing Date; and
(ix) all accounts receivable and notes receivable of the
Company.
(d) "Common Stock" means the Common Stock of Regent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
REGENT BROADCASTING, INC. KZAP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------- -------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇
--------------------------- -----------------------------
Title: Chairman Title: President
-------------------------- ----------------------------
REGENT COMMUNICATIONS, INC. SELLER:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------- ------------------------------------
▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Chairman
--------------------------
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