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EXHIBIT 4(d)
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") dated as of the 1st day of
December, 1997 between XXXXX X. XXXXXX (the "Buyer"), and REGENT COMMUNICATIONS,
INC., a Delaware corporation (the "Company").
1. Sale and Purchase of the Series A Preferred Stock. On and subject to the
terms and conditions set forth herein, the Company hereby sells, issues and
delivers to Buyer, and Buyer hereby purchases from the Company, 60,000 shares of
the 7% Series A Convertible Preferred Stock of the Company (the "Series A
Preferred Stock").
2. Purchase Price. The purchase price for the Series A Preferred Stock is
Three Hundred Thousand Dollars ($300,000.00) ($5.00 per share) (the "Purchase
Price"), which sum has been paid by Buyer to the Company prior to the execution
of this Agreement, receipt of which is hereby acknowledged.
3. Deliveries by the Company. Upon the execution of this Agreement, the
Company has delivered to Buyer, and Buyer hereby acknowledges receipt thereof, a
stock certificate representing the Series A Preferred Stock duly issued in the
name of Buyer and bearing the legends set forth in Section 6(j) hereof.
4. Representations and Warranties of the Company. The Company represents
and warrants to Buyer, as of the date hereof, as follows:
(a) Organization and Qualification. The Company is validly existing as a
Delaware corporation in good standing and is authorized to transact business as
a foreign corporation in good standing in those jurisdictions in which the
nature of its activities or the property owned by it make such qualification
necessary.
(b) Authority of the Company. This Agreement has been duly authorized,
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company 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).
(c) No Conflicts. The execution, delivery and performance of this
Agreement by the Company does not and will not violate any provision of law or
any rule or regulation of any federal, state or local governmental authority to
which the Company is subject, nor result in a breach or violation by the Company
of any of the terms or provisions of, or constitute an event of
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default under the Company's Certificate of Incorporation or By-Laws, as
currently in effect, or any indenture, mortgage, trust (constructive or
otherwise), loan agreement, lease or other agreement or instrument to which the
Company is a party or by which the Company or its assets are bound. The Company
is not a party to, or subject to, or bound by, any judgment, award, injunction,
order or decree of any court or governmental authority, or any arbitration award
which may restrict or interfere with the performance by the Company of this
Agreement.
(d) Required Consents. No consent, approval, joinder, waiver,
authorization, or declaration, filing or registration with any governmental or
regulatory authority, or any consent of any third party, is required to be
obtained by the Company in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, other than the consent and waiver attached hereto.
5. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to the Company, as of the date hereof, as follows:
(a) Non-Registration. Buyer understands that the offering and sale of
the Series A Preferred Stock is intended to be exempt from registration under
the Securities Act of 1933, as amended (the "1933 Act"), by virtue of Section
4(2) of the Act and the provisions of Regulation D promulgated thereunder, that
the Series A Preferred Stock has not been registered under the 1933 Act or under
the securities laws of any state, and that the Company will be under no
obligation to effect any such registration.
(b) Investment Intent. Buyer is purchasing the Series A Preferred Stock
for his own account, for investment and not with a view to resale, distribution,
or other disposition, and Buyer has no present plans to enter into any contract,
undertaking, agreement or arrangement for any such resale, distribution or other
disposition. Buyer will not sell or otherwise transfer the Series A Preferred
Stock 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 acceptable to the Company, is available for the
transaction.
(c) Status of Buyer. Buyer is an "accredited investor," as that term is
defined in Rule 501(a) of Regulation D promulgated under the 1933 Act.
(d) Opportunity to Review Books and Records. Buyer has had a reasonable
opportunity to inspect all documents, books and records pertaining to the
Company and the Series A Preferred Stock and confirms that the Series A
Preferred Stock is being purchased without Buyer's receipt of any offering
literature. Buyer is not relying on the Company or any agent of the Company with
respect to the economic or other considerations of an investment in the Company;
provided, however, that the representations of Buyer contained in this
subsection (d) and in subsection (e) below of this Section 5 shall not operate
to limit or modify the representations and warranties made by the Company in
Section 4 of this Agreement or the right of Buyer to rely thereon.
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(e) Opportunity for Questions. Buyer has had a reasonable opportunity to
ask questions of and receive answers from a person or persons acting on behalf
of the Company concerning the Company, its business and proposed operations, the
terms of the Series A Preferred Stock and all other aspects of investment in the
Company, and all such questions have been answered to the full satisfaction of
Buyer.
(f) Manner of Purchase. Buyer is not subscribing for the Series A
Preferred Stock 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
the Company.
(g) Absence of Certain Convictions, Orders. Neither Buyer nor any
affiliate (as defined in the 0000 Xxx) of Buyer: (i) has filed a registration
statement which is the subject of a currently effective stop order entered
pursuant to any state's law within five years prior to the date hereof; (ii) has
been convicted within five years prior to the date hereof of any felony or
misdemeanor in connection with the purchase or sale of any security or any
felony involving fraud or deceit including, but not limited to, forgery,
embezzlement, obtaining money under false pretenses, larceny or conspiracy to
defraud; (iii) is currently subject to any state's administrative order or
judgment entered by that state's securities administrator within five years
prior to the date hereof and is not subject to any state's administrative order
or judgment in which fraud or deceit was found and the order or judgment was
entered within five years of the date hereof; (iv) is currently subject to any
state's administrative order or judgment which prohibits the use of any
exemption from registration in connection with the purchase or sale of
securities; (v) is subject to any order, judgment or decree of any court of
competent jurisdiction temporarily or preliminarily restraining or enjoining, or
is subject to any order, judgment or decree of any court of competent
jurisdiction, entered within five years prior to the date hereof, permanently
restraining or enjoining the any such person from engaging in or continuing any
conduct or practice in connection with the purchase or sale of any security or
involving the making of any false filing with any state.
(h) No Conflict. The execution, delivery and performance of this
Agreement by Buyer (i) will not constitute a default under or conflict with any
agreement or instrument to which Buyer is a party or by which Buyer of his
assets are bound, (ii) will not conflict with or violate any order, judgment,
decree, statute, ordinance or regulation applicable to Buyer and (iii) do not
require the consent of any person or entity.
(i) No Broker or Finder. Buyer has not retained, or otherwise entered
into any agreement or understanding with, any broker or finder in connection
with its purchase of the Series A Preferred Stock hereunder, and the Company
will not incur any liability for any fee, commission or other compensation on
account of any such retention, agreement or understanding by Buyer.
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(j) Legends. Buyer understands that the certificate representing the
Series A Preferred Stock shall bear legends in substantially the following
forms, and Buyer shall not transfer any of the shares of Series A Preferred
Stock, or any shares of common stock that may be issued on conversion thereof,
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."
"The securities represented by this certificate are subject to the terms of
that certain Stockholders' Agreement dated as of May 20, 1997 among the
Corporation and its stockholders, as the same may be amended from time to
time."
6. Registration Rights. If, during any period when Buyer holds shares of
the Series A Preferred Stock or common stock of the Company issued on conversion
thereof (the "Conversion Shares"), the Company files a registration statement to
register for public offering its common stock, the Company shall give at least
90 days' advance written notice to Buyer of its intent to file such registration
statement. If so requested by Buyer within 30 days of the giving of such written
notice, to the extent then permissible under federal and applicable state
securities laws, and the rules and regulations of the Securities and Exchange
Commission thereunder, the Company shall include in such registration statement
for Buyer's account all but not less than all of the shares of the Conversion
Shares then held by Buyer, except where the inclusion of any or all of Buyer's
Conversion Shares is not permitted by the Company's underwriter(s) based on bona
fide market considerations.
The expense of such registration (except for the expense of underwriters'
or other sales compensation which will be borne by Buyer on a pro rata basis in
proportion to the number of shares transferred for Buyer's account as a portion
of the total number of shares sold pursuant to the registration statement) will
be borne by the Company. At the time of any registration pursuant to this
Section 6, the Company and Buyer shall enter into any underwriting or other
formal
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agreements containing such terms and provisions with respect to the marketing of
such securities, indemnification and other related matters as may be reasonably
required by the Company's underwriter(s) in any such registration. As a
condition of the inclusion of the Conversion Shares in any such registration,
Buyer agrees to furnish to the Company such information concerning Buyer as may
be requested by the Company as necessary in connection with the registration or
qualification of the Conversion Shares under federal and state securities laws.
Prior to the effective date of any such registration statement relating to the
Conversion Shares, the Company and Buyer shall each enter into an agreement
providing for reciprocal indemnification against losses, claims, damages,
liabilities and expenses resulting from any untrue statement or alleged untrue
statement of a material fact contained in a prospectus or related registration
statement, notification or the like or from any omission or alleged untrue
statement of material fact required to be stated therein or necessary to make
the statements therein not misleading, based upon the information provided by it
or on its behalf for use therein.
7. Modification of Terms of Convertible Preferred Stock. Unless waived or
otherwise agreed to by Buyer in writing, the Company and Buyer agree that in the
event the Company issues additional shares of any series of its Preferred Stock
now or hereafter authorized by its Certificate of Incorporation, as it may be
amended from time to time ("Additional Shares"), and if the terms of such
Additional Shares entitle the holders thereof to the following, on and subject
to such further terms and conditions as may be agreed to between the Company and
such holders (collectively, the "New Terms"):
(a) to require the Company to redeem the Additional Shares;
(b) to demand that the Company effect a 1933 Act registration
statement covering the Additional Shares or the common stock of the Company
into which the Additional Shares may be converted;
(c) to receive an adjustment to the number of Additional Shares or the
number of shares of common stock of the Company into which the Additional
Shares may be converted, or to the conversion price thereof, by virtue of
the future issuance or deemed issuance of additional common stock of the
Company or other securities of the Company convertible into or otherwise
entitling the holder to acquire common stock of the Company; and/or
(d) to assert the occurrence of one or more specified events as events
of default by the Company and to exercise one or more specified rights and
remedies by virtue of the occurrence thereof;
then in such event, the New Terms shall automatically also apply to the Series A
Preferred Stock acquired by Buyer hereunder, whether or not the New Terms are
perceived by Buyer (or any subsequent holder of such Series A Preferred Stock)
or by the Company as being a benefit to Buyer (or any such subsequent holder),
as if such New Terms had been set forth in the Company's
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Certificate of Incorporation and/or this Agreement on the date hereof. To the
extent that the New Terms are inconsistent in any respect with the then existing
terms of the Series A Preferred Stock or any provision of this Agreement, the
New Terms shall control. If such inconsistency involves provisions set forth in
the Company's Certificate of Incorporation or By-Laws as then in effect, the
Company's Certificate of Incorporation of By-Laws shall be amended to resolve
such inconsistency. Buyer (and for any subsequent holder of the Series A
Preferred Stock acquired by Buyer hereunder) shall consent to any such amendment
that requires the consent of the holders of such Series A Preferred Stock.
8. Audited Financials. The Company shall furnish to the holder(s) of the
Series A Preferred Stock issued pursuant to this Agreement, within 120 days
after the close of each fiscal year of the Company, audited financial statements
of the Company for such fiscal year, prepared and presented in accordance with
generally accepted accounting principles, together with the report of
independent certified public accountants, unqualified as to scope.
9. Miscellaneous
(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 the Company, addressed to:
Regent Communications, Inc.
00 Xxxx XxxxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, President
Facsimile (000) 000-0000
(ii) if to Buyer, addressed to:
Xx. Xxxxx X. Xxxxxx
c/o Regent Communications, Inc.
00 Xxxx XxxxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
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.
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(b) Entire Agreement; Amendment. This Agreement, 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 laws of the State of Ohio without regard to the application
of its conflicts of laws principles.
(d) Severability. In case 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 part 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
enforceable, 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 successors and permitted
assigns. This Agreement (i) shall not confer upon any person other than the
parties hereto and their respective successors and permitted assigns any rights
or remedies hereunder; and (ii) shall not be assignable by either party without
the prior written consent of the other.
(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
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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 Series A Preferred Stock hereunder.
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.
COMPANY:
REGENT COMMUNICATIONS, INC.
By:
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Its:
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BUYER:
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Xxxxx X. Xxxxxx
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WAIVER AND CONSENT
The undersigned, being parties to a Stockholders' Agreement dated as of
May 20, 1997 to which the shares of Series A Preferred Stock being issued to
Xxxxx X. Xxxxxx pursuant to the foregoing Stock Purchase Agreement are subject,
hereby consent to the issuance of such shares and waive as to such shares all
rights which the undersigned possess pursuant to Section 6 of said Stockholders'
Agreement, including all rights of notice, offer and purchase.
Dated as of December 1, 1997.
River Cities Capital Fund Limited Partnership
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Xxxxx X. Xxxxxx
By: River Cities Management Limited
Partnership, its General Partner
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Xxxxxxx X. Xxxxxxxx
By: Xxxxxx, Inc., its General Partner
By:
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R. Xxxx Xxxxxxxx, Vice President
