EXHIBIT 2.1
UNIT PURCHASE AGREEMENT
This UNIT PURCHASE AGREEMENT (the "Agreement") is entered into as of
November 25, 2003, by and among Regent Theaters, LLC, a Texas limited liability
company ("Theaters"), Regent Releasing, LLC, a Texas limited liability company
("Releasing"), Advance Display Technologies, a Colorado corporation (the
"Purchaser") and Regent Entertainment Partnership, L.P., a Texas limited
partnership ("Seller").
RECITALS
A. Seller owns all of the issued and outstanding membership interests (the
"Units") in Theaters and Releasing.
B. Seller desires to sell, and Purchaser desires to purchase, the Units,
on the terms and conditions set forth herein.
C. In consideration of the mutual promises and covenants hereinafter set
forth and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
ARTICLE 1
AGREEMENT TO SELL AND PURCHASE
SECTION 1.01 Sale and Purchase. Subject to the terms and conditions hereof,
on the date hereof, Seller hereby agrees to sell to Purchaser and Purchaser
agrees to purchase from Seller, the Units for $50,000 (the "Purchase Price").
ARTICLE 2
CLOSING, DELIVERY AND PAYMENT
SECTION 2.01 Closing. The closing of the sale and purchase of the Units
under this Agreement ("Closing") shall take place on the date hereof at the
offices of Xxxxx Xxxxxx & Xxxxxx LLP, 0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000 or at such other time and place as Seller and Purchaser
may mutually agree.
SECTION 2.02 Delivery. At Closing, Seller will deliver to Purchaser
certificates representing the Units (if the Units are certificated), and
Purchaser shall pay to Seller the Purchase Price. If the Units are
uncertificated, the delivery of the Purchase Price, together with the execution
of this Agreement, will suffice to transfer ownership of the Units.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF Seller and THE COMPANY
As of the date hereof, Seller and Theaters and Releasing hereby represent
and warrant to Purchaser as follows:
SECTION 3.01 Organization, Good Standing and Qualification. Each of
Theaters and Releasing (collectively, the "Companies") is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Texas. The Companies have all requisite corporate power and
authority to own and operate their respective properties and assets, to execute
and deliver this Agreement, to carry out the provisions of this Agreement and to
carry on their respective businesses as presently conducted and as presently
proposed to be conducted. Seller has all requisite corporate power and authority
to execute and deliver this Agreement, to sell the Units and to carry out the
provisions of this Agreement. Each of the Companies is duly qualified and
authorized to do business and in good standing as a foreign corporation in all
jurisdictions in which the nature of its activities and of its properties (both
owned and leased) makes such qualification necessary, except for those
jurisdictions in which failure to do so would not have a material adverse effect
on it or its business.
SECTION 3.02 Subsidiaries. Neither of the Companies owns or controls any
equity security or other interest of any other business entity. Neither Company
is a participant in any joint venture, partnership or similar arrangement.
SECTION 3.03 Capitalization. The Units are the only issued and outstanding
membership interests in the Companies. There are no outstanding options,
warrants, rights (including conversion or preemptive rights and rights of first
refusal), proxy or agreements of any kind for the purchase or acquisition from
either of the Companies of any of their membership interests, profits interests,
or any other securities.
SECTION 3.04 Authorization; Binding Obligations. All corporate action on
the part of each of the Companies and of the Seller, and their respective
managers and members, necessary for the authorization of this Agreement and the
performance of all obligations of the Companies and Seller hereunder has been
taken. This Agreement, when executed and delivered, will be the valid and
binding obligations of the Companies and Seller, respectively, enforceable in
accordance with its terms, except as enforceability is limited by (i) applicable
bankruptcy, insolvency, fraudulent conveyance, liquidation conservatorship,
reorganization, moratorium or similar laws affecting the enforceability of
rights and creditors generally and (ii) general equity principles. Neither the
sale of the Units nor the performance of the other transactions contemplated
hereby will violate any applicable law, any order of any court or other agency
of government, the Articles of Organization or operating agreement of the
Companies or Seller, or any other agreement or instrument to which Theaters,
Releasing or Seller is a party or by which any of them is bound, or be in
conflict with, result in the breach of, or, to their knowledge, constitute (with
notice or lapse of time, or both) a default under any such agreement or
instrument.
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SECTION 3.05 Liabilities. Except for its obligations under the Theater
Leases and as set forth on the Financial Statements, the Company, to the best of
its knowledge, knows of no material contingent or undisclosed liabilities except
liabilities incurred in the ordinary course of business.
SECTION 3.06 Agreements; Action. Except for the Theater Leases, there are
no agreements, understandings, instruments, contracts, proposed transactions,
judgments, orders, writs or decrees to which the Company is a party or by which
it is bound which may involve (i) obligations (contingent or otherwise),
indebtedness, indemnification, third-party guaranty or other obligations of, or
payments to or from, either of the Companies in excess of $50,000, or (ii)
provisions restricting either of the Companies' current or proposed business.
There are no obligations of either of the Companies to their respective
managers, members, employees or affiliates, other than for payment of salary for
services rendered or reimbursement for reasonable expenses incurred on behalf of
the Company.
SECTION 3.07 Consents. No consent, waiver, approval, order or authorization
of, or registration, declaration or filing with, any governmental entity, or any
third party is required by or with respect to Theaters and Releasing in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
SECTION 3.08 Title to Properties and Assets; Liens, Etc. Each of the
Companies has good and marketable title to its properties and assets, and good
title to its respective leasehold estates under the Theater Leases and any other
leases, in each case subject to no mortgage, pledge, lien, lease, encumbrance or
other charge or security interest (collectively, "Encumbrances"). Each of the
Companies owns or possesses sufficient legal rights to, or has applied for, all
trademarks, service marks, trade names, copyrights, trade secrets, information
and other proprietary rights and processes necessary for its business as now
conducted, without any known infringement of the rights of others.
SECTION 3.09 Compliance with Other Instruments. Neither of the Companies is
in violation or default of any term of its Articles of Organization or operating
agreement, or of any material provision of the Theater Leases or other material
agreements or instrument to which it is party or by which it is bound or of any
judgment, decree, order, writ or, to its knowledge, any statute, rule or
regulation applicable to it that would reasonably be likely to materially and
adversely affect its business, assets, liabilities, financial condition or
operations.
SECTION 3.10 Litigation. There is no action, suit, proceeding or
investigation pending or currently threatened against either of the Companies or
their respective assets.
SECTION 3.11 Employees. Neither Theaters nor Releasing has any collective
bargaining agreements or employment agreements with any of their respective
employees.
SECTION 3.12 Title to Units. Seller is the record and beneficial owner of
the Units, and at Closing, will convey to Purchaser, good and valid title to the
Units, free and clear of all Encumbrances. Seller has the full right and power
to sell, assign, exchange, transfer and deliver the Units to Purchaser as
provided in this Agreement. Other than the Units, neither Seller nor
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any of its affiliates own any other securities of either of the Companies,
including, without limitations, options, warrants, or other rights to acquire
securities of either of the Companies.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
SECTION 4.01 Requisite Power and Authority. Purchaser has all necessary
power and authority under all applicable provisions of law to execute and
deliver this Agreement and to carry out its provisions. Upon execution and
delivery, this Agreement will be a valid and binding obligation of Purchaser,
enforceable in accordance with its terms, except as enforceability is limited by
(i) applicable bankruptcy, insolvency, fraudulent conveyance, liquidation
conservatorship, reorganization, moratorium or similar laws affecting the
enforceability of rights and creditors generally and (ii) general equity
principles.
SECTION 4.02 Investment Representations. Purchaser understands that none of
the Units has been registered under the Securities Act of 1933, as amended
("Securities Act"). Purchaser also understands that the Units are being sold
pursuant to an exemption from registration contained in the Securities Act based
in part upon Purchaser's representations contained in this Agreement. Purchaser
understands that it must bear the economic risk of this investment indefinitely
unless the Units are registered pursuant to the Securities Act, or an exemption
from registration is available. Purchaser is acquiring the Units for Purchaser's
own account for investment only, and not with a view towards their distribution.
Purchaser represents that by reason of its management's business or financial
experience, Purchaser has the capacity to make a financial decision in
connection with the transactions contemplated in this Agreement. Purchaser has
had the opportunity to ask questions of and receive answers from Theaters and
Releasing and their management regarding the terms and conditions of this
purchase.
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.01 Conditions of the Parties' Obligations at the Closing.
(A) Purchaser's obligations under this Agreement are subject to the full
execution and delivery of this Agreement by Theaters, Releasing and Seller, and
the full execution and delivery of the Stock Purchase Agreement, dated as of the
date hereof, by and among the Purchaser, and certain investors ("Stock Purchase
Agreement"), and the Series C Conversion Agreement, the New Debt Exchange
Agreement, the Old Debt Exchange Agreement, the Shareholders Agreement, and
certain Employment Agreements, each being further described in Stock Purchase
Agreement; and
(B) Seller's and the Companies' obligations under this Agreement are
subject to the full execution and delivery of this Agreement by Purchaser, and
the full execution and delivery of the Stock Purchase Agreement, the Series C
Conversion Agreement, the New Debt
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Exchange Agreement, the Old Debt Exchange Agreement, the Shareholders Agreement,
and certain Employment Agreements.
ARTICLE 6
INDEMNIFICATION
SECTION 6.01 Indemnification. Seller shall indemnify and hold Purchaser
harmless, and Purchaser shall indemnify and hold Seller harmless, from and
against any and all losses, claims, damages, expenses or liabilities (including,
without limitation, the costs of any investigation or suit and counsel fees
related thereto) asserted against, imposed upon or incurred by such other party
resulting from a breach by the indemnifying party (which includes the Companies
in the case of Seller) of any of its representations, warranties or covenants
made in this Agreement.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01 Governing Law. This Agreement shall be governed in all
respects by the laws of the State of Colorado as such laws are applied to
agreements between Colorado residents entered into and performed entirely in
Colorado.
SECTION 7.02 Survival. The representations, warranties, covenants and
agreements made herein shall survive for a period of two years after the
Closing.
SECTION 7.03 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.
SECTION 7.04 Entire Agreement. This Agreement, and Exhibit A attached
hereto, constitutes the full and entire understanding and agreement between the
parties with regard to the subjects hereof and no party shall be liable or bound
to any other in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein and therein.
SECTION 7.05 Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 7.06 Amendment and Waiver. This Agreement may be amended or
modified, and provisions waived, only upon the written consent of the parties
hereto.
SECTION 7.07 Notices. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed facsimile if sent during
normal business hours of the recipient, or if not, then on the next business
day, (c) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one (1) day after deposit with
a nationally
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recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the address
provided by Seller and Purchaser.
SECTION 7.08 Expenses. Each party to this Agreement shall pay the costs and
expenses that it incurs with respect to the negotiation, execution, delivery and
performance of the Agreement.
SECTION 7.09 Attorneys' Fees. In the event that any dispute among the
parties to this Agreement should result in litigation, the prevailing party in
such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with
respect to this Agreement, including without limitation, such reasonable fees
and expenses of attorneys and accountants, which shall include, without
limitation, all fees, costs and expenses of appeals.
SECTION 7.10 Broker's Fees. Each party hereto represents and warrants that
no agent, broker, investment banker, person or firm acting on behalf of or under
the authority of such party hereto is or will be entitled to any broker's or
finder's fee or any other commission directly or indirectly in connection with
the transactions contemplated herein.
SECTION 7.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed as of the date first above written.
REGENT THEATERS, LLC
By: /S/ XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Manager
REGENT RELEASING, LLC
By: /S/ XXXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Manager
ADVANCE DISPLAY TECHNOLOGIES, INC.
By:/S/ XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
REGENT ENTERTAINMENT PARTNERSHIP, L.P.
By: REGENT ENTERTAINMENT INC.
By:/S/XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman and CEO
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EXHIBIT A
THEATER LEASES
