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Exhibit 4(i)
AMENDED AND RESTATED
REDEMPTION AND WARRANT AGREEMENT
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Agreement dated as of March 31, 1998 among Regent Communications, Inc.,
a Delaware corporation ("Regent"), Blue Chip Capital Fund II Limited
Partnership, an Ohio limited partnership ("Blue Chip"), Miami Valley Venture
Fund L.P., an Ohio limited partnership ("Miami"), and Faircom Inc., a Delaware
corporation ("Faircom"). This Agreement amends and restates the Redemption and
Warrant Agreement dated as of December 5, 1997.
Pursuant to a Securities Purchase Agreement dated as of June 30, 1997,
Blue Chip and Miami purchased an aggregate of $10 million principal amount of
Class A and Class B Convertible Subordinated Promissory Notes due July 1, 2002
(the "Notes") of Faircom. On February 13, 1998 Blue Chip and Miami sold $1
million principal amount of the Notes to PNC Bank, National Association,
Trustee. Pursuant to an Agreement of Merger dated as December 5, 1997 (the
"Merger Agreement") among Faircom, Regent Merger Corp. and Regent, it is
contemplated that immediately prior to the consummation of the merger
contemplated by the Merger Agreement (the "Merger"), Blue Chip and Miami will
sell $1.5 million principal amount of the Notes to Xxxxxx-Xxxxxx Media Partners,
L.P. ("Xxxxxx-Xxxxxx") and convert their remaining $7.5 million principal amount
of the Notes into shares of common stock of Faircom, which pursuant to the
Merger will be exchanged for shares of $5 Series C Convertible Preferred Stock
of Regent ("Preferred Stock"). In order to induce Blue Chip and Miami to approve
the execution of the Merger Agreement and the consummation of the Merger and to
convert their Notes as described above, the parties hereby agree as follows:
1. The parties shall take all actions necessary so that at least $7.5
million principal amount of the Notes (and if Blue Chip and Miami so elect, up
to $9 million principal amount of the Notes) are converted into Common Stock of
Faircom immediately prior to the consummation of the Merger.
2. It shall be a condition precedent to such conversion and the Merger
that Regent shall have received all necessary corporate approvals (including
those of its shareholders) for the transactions contemplated by this Agreement
and that Regent shall have delivered a certificate to that effect.
3. Regent shall promptly notify each of Blue Chip and Miami at such
time after the consummation of the Merger (the "Merger Closing") that Regent has
received aggregate net proceeds of not less than $1,500,000 from the sale of
equity securities after the Merger Closing.
4. During the sixty (60)-day period after receipt of the notice from
Regent described in Section 3 hereof, each of Blue Chip and Miami may elect, by
notice to Regent, which notice shall be irrevocable, to sell to Regent all or a
portion of the shares of Preferred Stock described on Exhibit A hereto (or any
other
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securities of Regent issued to Blue Chip or Miami upon conversion of or in
exchange for such shares of Preferred Stock) at a price of $5.00 per share of
Preferred Stock, plus any accrued but unpaid dividends thereon.
5. At a closing held at the principal offices of Regent within thirty
(30) days after receipt of the notice described in Section 4 above, Blue Chip or
Miami, as the case may be, shall sell and Regent shall purchase the shares of
Preferred Stock or other securities subject to such notice. The seller shall
deliver to Regent certificates for the shares or securities to be purchased,
duly endorsed for transfer, and Regent shall deliver to the seller the purchase
price therefor by certified or bank check or wire transfer. Regent may assign
its rights, but not its obligations, under this Section 5.
6. On the last day of each month from the Merger Closing Date to the
date on which Regent gives the notice described in Section 3 above, Regent shall
deliver to Blue Chip and Miami warrants in the form of Exhibit B hereto (the
"Warrants") to purchase such number of shares of Preferred Stock as is set forth
on Exhibit A hereto (such number to be prorated for any partial month).
7. Regent hereby represents and warrants to Blue Chip and Miami as
follows: All corporate action on the part of Regent, its directors and
stockholders necessary for the authorization, execution, delivery and
performance of this Agreement by Regent, the authorization, sale, issuance and
delivery of (i) the Warrants and (ii) the Warrant Shares (as defined in the
Warrants) and the performance of all of Regent's obligations hereunder and
thereunder has been taken. This Agreement constitutes the valid and binding
obligation of Regent, enforceable in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting enforcement of creditors' rights generally and except
as enforcement is subject to general principles of equity regardless of whether
enforcement is considered in a proceeding at law or in equity. The Warrants,
when issued in compliance with the provisions of this Agreement, will be validly
issued, will have the rights, preferences and privileges described therein and
will constitute valid and binding obligations of Regent, enforceable in
accordance with their terms, subject to the matters described above. The Warrant
Shares have been duly and validly reserved and, when issued in compliance with
the provisions of the Warrants, will be validly issued, fully paid and
nonassessable. The Warrants and the Warrant Shares will be free of any liens or
encumbrances, other than any liens or encumbrances created by or imposed upon
the holders thereof through no action of Regent; provided, however, that the
Warrants and the Warrant Shares will be subject to restrictions on transfer
under state and/or federal securities laws as set forth therein.
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8. If prior to the consummation of the Merger, Blue Chip and
Miami sell an additional $1.5 million principal amount of the Notes to
Xxxxxx-Xxxxxx, the obligations of Regent under Sections 3 through 6 of this
Agreement shall terminate without further action by any party.
9. Miscellaneous.
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(a) NOTICES. Any notice, request or other document to be given
hereunder to any party shall be effective upon receipt (or refusal of receipt)
and shall be in writing and delivered personally or sent by telecopy or
certified or registered mail, postage prepaid:
(i) if to Regent, addressed to:
Regent Communications, Inc.
00 Xxxx XxxxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Chairman of the Board
Facsimile (000) 000-0000
with a copy to:
Xxxxxxx & Xxxx
2100 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Facsimile (000) 000-0000
(ii) if to Blue Chip, addressed to:
Blue Chip Capital Fund II Limited Partnership
c/o Blue Chip Venture Company, Ltd.
2000 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxx
Facsimile (000) 000-0000
with a copy to:
Xxxx, Stettinius & Hollister
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile (000) 000-0000
(iii) if to Miami, addressed to:
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Miami Valley Venture Fund L.P.
c/o Blue Chip Venture Company of Dayton, Ltd.
2000 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxx
Facsimile (000) 000-0000
with a copy to:
Xxxx, Xxxxxxxxxx & Xxxxxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile (000) 000-0000
(iv) if to Faircom, addressed to:
Xxxx X. Xxxxxxx, Chairman
Faircom Inc.
000 Xxxx Xxxx Xxxx
Xxx Xxxxxxxxxx, Xxx Xxxx 00000
Facsimile (000) 000-0000
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx, Esq.
Facsimile (000) 000-0000
or to such other address or telecopy number as any party shall have specified by
notice given to the other parties in the manner specified above.
(b) ENTIRE AGREEMENT; AMENDMENT. This Agreement, including the
Exhibits hereto, and the other agreements expressly contemplated by this
Agreement, contain the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior oral and written agreements,
memoranda, term sheets, understandings and undertakings among the parties hereto
relating to the subject matter hereof. This Agreement may be modified or amended
only by a written instrument executed by or on behalf of the parties hereto.
(c) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Delaware without
regard to the application of its conflicts of laws principles. The parties
hereby waive all right to trial by jury in any action, suit or proceeding
brought to enforce or defend any rights or remedies under this Agreement or the
transactions contemplated hereby.
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(d) SEVERABILITY. If any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof shall not in any way be affected or impaired
thereby.
(e) CONSTRUCTION. The section and subsection headings used
herein are for convenience of reference only, are not a party of this Agreement
and are not to affect the construction of, or be taken into consideration in
interpreting, any provision of this Agreement. As used in this Agreement, the
masculine, feminine and neuter gender each includes the other, unless the
context otherwise dictates. Any and all schedules and exhibits referred to in
this Agreement and attached hereto are and shall be incorporated in this
Agreement as if fully set forth herein.
(f) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
(g) SPECIFIC PERFORMANCE. The parties hereto acknowledge that
damages may be an inadequate remedy for any breach of the provisions of this
Agreement and agree that the obligations of the parties hereunder may be
specifically enforced, and no party will take any action to impede the other
from seeking to enforce such right of specific performance after any such
breach.
(h) SUCCESSORS AND ASSIGNS; ASSIGNABILITY. Except as otherwise
provided herein, this Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and their respective successor and
permitted assigns. This Agreement shall not confer upon any person other than
the parties hereto and their respective successors and permitted assigns any
rights or remedies hereunder.
(i) FURTHER ASSURANCES. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable efforts
to take, or cause to be taken, all action and to do, or cause to be done, all
things necessary proper or advisable to consummate and make effective the
transactions contemplated by this Agreement.
(j) SURVIVAL. The representations and warranties of the
parties contained herein shall survive execution and delivery of this Agreement
and issuance and delivery of the Warrants or Warrant Shares.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered, as of the day and year first above written.
REGENT COMMUNICATIONS, INC.
By: __________________________
Its: _________________________
BLUE CHIP CAPITAL FUND II
LIMITED PARTNERSHIP
By: Blue Chip Venture Company, Ltd.
Its General Partner
By: __________________________
Xxxx X. Xxxxx
Its: Manager
MIAMI VALLEY VENTURE FUND L.P.
By: Blue Chip Venture Company of
Dayton, Ltd.
Its Special Limited Partner
By: __________________________
Xxxx X. Xxxxx
Its: Manager
FAIRCOM, INC.
By: __________________________
Its: _________________________
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