Exhibit 10(a)
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of August
28, 2001 by and between Regent Communications, Inc., a Delaware corporation,
("Regent" or the "Company") and Xxxxxx X. Xxxxxxx, an individual (the
"Investor").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Reorganization Agreement dated as of May
15, 2001 (the "Reorganization Agreement") by and among Regent Broadcasting,
Inc., Regent Communications, Inc. and the Investor, the Investor is acquiring
shares of Common Stock of Regent.
WHEREAS, to induce the Investor to consummate the transactions contemplated
by the Reorganization Agreement (the "Transactions"), the parties are willing to
enter into this Agreement on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Certain capitalized terms used herein are defined in
Appendix A hereto.
2. PIGGYBACK REGISTRATIONS.
a. RIGHT TO PIGGYBACK. At any time following the consummation of the
Transactions, if the Company proposes to register any Common Stock in a
Qualified Offering and the registration form to be used in such Qualified
Offering also may be used for the registration of Registrable Securities, the
Company will give written notice to the Holders of Registrable Securities, of
the Company's intention to effect such registration as soon as practicable (but
in no event less than 30 days before the anticipated filing date of the
Company's registration statement with the SEC). Subject to subparagraph 1(b)
below, the Company will include in such registration all Registrable Securities
with respect to which the Company has received from the Holders written requests
for inclusion therein within 20 days after the date on which the Company sends
the Piggyback Notice to the Holders.
b. PRIORITY OF REGISTRATION. If any Holder has exercised his right to
request a Piggyback Registration and thereafter the Company determines that, or
in the case of an underwritten registration, the managing underwriters advise
the Company in writing that in their opinion, the number of Registrable
Securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner within a price range acceptable to the
Company, then Company will include in such registration: (i) first, all the
securities the Company proposes to sell; (ii) second, all the Senior Securities
requested to be included in such
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registration by any Senior Holders, pro rata among such Senior Holders on the
basis of the number of securities requested for inclusion in such registration
by each such holder; (iii) third, the Registrable Securities and any Pari Passu
Securities requested to be included in such registration, pro rata among the
Holders and the Pari Passu Holders requesting such registration on the basis of
the number of shares of Registrable Securities and Pari Passu Securities
requested for inclusion in such registration by each such holder; and (iv) any
other securities requested to be included in such registration, pro rata among
the holders of such other securities on the basis of the number of securities
requested for inclusion in such registration by each such holder.
c. SELECTION OF UNDERWRITERS. In the case of an underwritten
registration, the Company will have the sole right to select the investment
banker(s) and manager(s) to underwrite the offering notwithstanding any Holder's
exercise of his right to request a Piggyback Registration.
2. HOLDBACK AGREEMENTS. For so long as he holds Registrable Securities, the
Holder agrees not to effect any public sale or distribution (including sales
pursuant to Rule 144) of any equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during any
time requested by the managing underwriter for the registration in which the
Holder is participating following the Holder's exercise of his right to request
a Piggyback Registration.
3. WITHDRAWAL OF REGISTRATION STATEMENT; DELAY OR POSTPONEMENT OF
EFFECTIVENESS. If, at any time after the Piggyback Notice and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register Common
Stock in connection with such registration statement, the Company may, in its
sole discretion, give written notice of such determination to the Holders (if
such Holder made a request for Piggyback Registration) and thereupon the Company
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration. The Company further may delay or postpone
seeking the effectiveness of the registration statement in its sole discretion.
4. REGISTRATION PROCEDURES. Subject to the other provisions of this
Agreement including without limitation the provisions of Section 3, whenever a
Holder has requested that any Registrable Securities be registered in connection
with a Piggyback Registration pursuant to this Agreement, the Company will use
reasonable efforts to effect the registration and facilitate the sale and
distribution of all such Registrable Securities specified in such registration
request in accordance with the intended method of disposition thereof and
pursuant thereto the Company will as expeditiously as possible:
a. prepare and file with the SEC a registration statement which
includes such Registrable Securities and use reasonable efforts to cause such
registration statement to become effective and to comply as to form in all
material respects with the requirements of the applicable form and include all
financial statements required by the SEC to be filed therewith;
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b. prepare and file with the SEC such amendments, post-effective
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement continuously effective for the period required by the intended method
of disposition, and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement,
provided, however, that the Company shall not be required to file, cause to
become effective or maintain the effectiveness of any registration statement
that contemplates a distribution of securities on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act;
c. furnish to each Holder, who is selling Registrable Securities,
without charge, such number of copies of such registration statement, each
amendment, post-effective amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such Holder may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by him;
d. use reasonable efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
the Investor reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable the Holders to consummate the
disposition in such jurisdictions of the Registrable Securities owned by the
Holders (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction, (iii) consent to general service of process in any such
jurisdiction (unless the Company is subject to service in such jurisdiction and
except as may be required by the Securities Act), or (iv) qualify such
Registrable Securities in a given jurisdiction where expressions of investment
intent are not sufficient in such jurisdiction to reasonably justify the expense
of qualification in that jurisdiction or where such qualification would require
the Company to register as a broker or dealer in such jurisdiction);
e. promptly notify any Holder who is selling Registrable Securities,
at any time when a prospectus relating to the Registrable Securities is required
to be delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in such registration statement contains
an untrue statement of a material fact or omits any material fact necessary to
make the statements therein not misleading;
f. cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and to be qualified for trading on each system on which similar
securities issued by the Company are from time to time qualified;
g. otherwise cooperate with the Holders and the managing underwriter
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to
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be sold and not bearing any restrictive legends, other than as provided in the
Company's certificate of incorporation, and enable such Registrable Securities
to be in such denominations and registered in such names as the managing
underwriter may reasonably request prior to any sale of Registrable Securities
to the underwriters;
h. along with each Holders who is selling Registrable Securities,
enter into such customary agreements (including underwriting agreements in
customary form with customary indemnification provisions) with the managing
underwriter of such offering; and
i. in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any shares of Common Stock included in such registration statement for sale in
any jurisdiction, the Company will promptly notify each Holder who is selling
Registrable Securities and use reasonable efforts to promptly obtain the
withdrawal of such order;
Each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraphs 4(e) or (i) hereof,
he will forthwith discontinue disposition of shares of Common Stock pursuant to
a Piggyback Registration until receipt of copies of an appropriate supplement or
amendment to the prospectus under paragraph 4(e) or until the withdrawal of such
order under paragraph 4(i).
5. PARTICIPATION IN REGISTRATIONS. No Holder may participate in any
registration hereunder which is underwritten unless such Holder (a) agrees to
sell such person's securities on the basis provided in any underwriting
arrangements approved by the Company, (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents as may be reasonably requested by the Company or the managing
underwriters of the offering or as required under the terms of such underwriting
arrangements, provided that no holder of Registrable Securities included in any
underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters other than representations and
warranties regarding such holder and such holder's intended method of
distribution. Each Holder further agrees that, in connection with any
registration of Registrable Securities, he will provide such information to the
Company as is requested by the Company and is necessary and/or desirable to
ensure full compliance by the Company with federal and state securities laws and
that he will have no right to withdraw any of his Registrable Securities
included in such offering subsequent to the distribution of any preliminary
prospectus by the Company and/or the managing underwriter of such offering
absent the written approval by the Company, which approval may be withheld in
the Company's sole discretion.
6. REGISTRATION EXPENSES. All Registration Expenses will be borne by the
Company. In connection with any Piggyback Registration undertaken pursuant to
this Agreement, the Company and the Holders agree that each of them will bear
their own legal fees and expenses and all underwriting fees, commissions,
discounts and expenses applicable to the securities sold by them, respectively.
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7. INDEMNIFICATION.
a. The Company agrees to indemnify, to the extent permitted by law,
the Holders against all losses, claims, damages, liabilities and reasonable
expenses, including any of the foregoing, and reasonable fees and expenses of
counsel, incurred in investigating, preparing or defending against, and
aggregate amounts paid in settlement of, any litigation, action, investigation
or proceeding by any governmental agency or body, commenced or threatened, in
each case whether or not a party, based upon, caused by or arising out of any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto required to be filed or prepared hereunder on
behalf the Investor or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by a Holder (or on behalf of a
Holder) expressly for use therein.
b. In connection with any registration statement in which a Holder is
participating, the Holder will furnish to the Company in writing such
information relating to the Holder as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, will indemnify the Company, its directors, partners, members,
stockholders, employees, trustees and officers and each Person who controls
(within the meaning of the Securities Act) the Company against any losses,
claims, damages, liabilities and reasonable expenses as incurred, including any
of the foregoing, and reasonable fees and expenses of counsel incurred in
investigating, preparing or defending against, and aggregate amounts paid in
settlement of, any litigation, action, investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether or
not a party, or any claim whatsoever, based upon, caused by or arising out of
any untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained in any information so furnished in writing by the Holder expressly for
such purpose.
c. Any Person entitled to indemnification hereunder will (i) give
reasonably prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
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d. The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director, manager, agent or controlling
Person of such indemnified party and will survive the transfer of securities.
The Company also agrees to make such provisions, as are reasonably requested by
any indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason. Such right to contribution shall
be in such proportion as is appropriate to reflect the relative fault of the
Company on the one hand and the Holder on the other (in such proportions that
the Holder is severally, not jointly, responsible for the balance), in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
the indemnified parties, and the parties relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant hereto were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediate preceding paragraph, provided,
however, that in no event shall the aggregate liability, if any, of any Holder
pursuant to this Section 7 exceed the net proceeds from his sale of Registrable
Securities. No person found guilty of any fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not found guilty of such fraudulent
misrepresentation.
8. MISCELLANEOUS.
a. REMEDIES. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement. The Holders further agree that no Holder shall have any right to
obtain or seek to obtain an injunction restraining or otherwise delaying any
registration undertaken by the Company as the result of any controversy or
dispute that might arise with respect to the interpretation or implementation of
this Agreement nor shall any holder have any right to compel or seek to compel
the Company to accelerate the effectiveness of any registration that the Company
has delayed or withdrawn in accordance with Section 3 hereof.
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b. AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the Holders of at least a majority of the
Registrable Securities then outstanding.
c. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto,
including any pledgee, whether so expressed or not. In addition, whether or not
any express assignment has been made, the provisions of this Agreement which are
for the benefit of purchasers or holders of Registrable Securities are also for
the benefit of, and enforceable by, any subsequent holder or pledgee of
Registrable Securities provided that such subsequent holder executes a
counterpart to this Agreement and agrees to be bound to the terms hereof. The
parties hereto expressly agree that in the event that the Investor and any
subsequent Holder distributes Registrable Securities to any third party, all
covenants and agreements in this Agreement shall inure to the benefit of such
distributees of the Registrable Securities provided that such subsequent holder
executes a counterpart to this Agreement and agrees to be bound to the terms
hereof.
d. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
e. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together will constitute one and
the same Agreement.
f. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
g. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the domestic laws of the State of Delaware, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
h. NOTICES. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable express courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications will be sent to the parties hereto at the address indicated on
the records of the Company and to the Company at the address indicated below:
Regent Communications, Inc.
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000 Xxxx XxxxxXxxxxx Xxxx.
0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxxx
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
i. This Agreement represents the entire agreement of the parties with
respect to the subject matter contained herein and supersede all prior
agreements and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
REGENT COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxx
President and
Chief Operating Officer
INVESTOR
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx, an individual
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APPENDIX A
DEFINITIONS
"COMMON STOCK" means shares of the common capital stock of Regent.
"COMPANY" means Regent.
"HOLDER" means any person, including the Investor, owning or having the
right to acquire Registrable Securities or any assignee thereof in accordance
with the terms of this Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
"PARI PASSU HOLDER" means any Person who is a holder of Common Stock and to
whom the Company has granted piggyback registration rights substantially
equivalent to the rights granted to the Investor pursuant to this Agreement.
"PARI PASSU SECURITIES" means any Common Stock held by a Pari Passu Holder
that would qualify as Registrable Securities hereunder if the Investor held such
securities.
"PERSON" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"PIGGYBACK NOTICE" means the notice delivered by the Company to the
Investor under Section 1(a) of this Agreement.
"PIGGYBACK REGISTRATION" means the registration of Registrable Securities
pursuant to Section 1(a) of this Agreement.
"QUALIFIED OFFERING" means a primary registered offering of Common Stock by
the Company, other than pursuant to (i) a registration on Form S-4 or any
successor form, (ii) an offering of securities in connection with an employee
benefit, stock dividend, stock ownership or dividend reinvestment plan, (iii) an
offering of securities or any securities convertible into or exchangeable or
exercisable for such securities of the Company, for non-cash consideration to
persons selling stock or assets to the Company, or (iv) any other offering of
securities that is otherwise directly related to securities to be issued in a
merger, acquisition of the stock or assets of another entity or in any similar
transaction, including any registration providing for the resale of the
securities issued in such a transaction.
"REGENT" means Regent Communications, Inc., a Delaware corporation.
"REGISTER," "REGISTERED" and "REGISTRATION" mean any registration effected
by preparing and filing a registration statement or similar document with the
SEC in compliance with the
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Securities Act, and the declaration of ordering or effectiveness of such
registration statement or document.
"REGISTRATION EXPENSES" means any and all expenses incident to performance
of or compliance with this Agreement, including, without limitation: (i) all SEC
or NASD registration and filing fees; (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualification of any of the Registrable Securities and the preparation of a Blue
Sky Memorandum) and compliance with the rules of the NASD; (iii) all expenses of
any Person engaged by the Company in preparing or assisting in preparing, word
processing, printing and distributing any registration statement, prospectus,
certificates or other documents relating to the performance of or compliance
with this Agreement; (iv) all fees and expenses incurred in connection with the
listing of any of the Registrable Securities on any securities exchange or
exchanges pursuant to Section 4(f) hereof; and (v) the fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company, including the expenses of any special audits or "cold comfort" letters,
if any, required by or incident to such performance and compliance. Registration
Expenses do not include discounts, commissions, fees and expenses, including
legal fees, of underwriters or of holders of Registrable Securities.
"REGISTRABLE SECURITIES" means the 786,141 shares of Common Stock issued to
the Investor in connection with the Transactions, including any such shares that
subsequently were received by the Investor by way of replacement, stock
dividend, stock split or in connection with a combination of shares of stock,
recapitalization, merger, consolidation or other reorganization for the Common
Stock. As to any particular Registrable Securities, such securities will cease
to be Registrable Securities when they have been sold to the public pursuant to
an offering registered under the Securities Act or sold to the public in
compliance with Rule 144 under the Securities Act (or any similar rule then in
force) or when they become eligible for sale under Rule 144 under the Securities
Act without regard to the volume limitations set forth in Rule 144(e) under the
Securities Act.
"SEC" means the U.S. Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"SENIOR HOLDERS" means any Person who is a party to that certain
Registration Rights Agreement dated as of June 15, 1998, including any amendment
thereto, who is a holder of shares of stock of the Company issued by the
Company, and any other Person to whom the Company grants rights regarding the
registration of Common Stock which are senior in any respect to the Registrable
Securities.
"SENIOR SECURITIES" means any shares of stock of the Company held by a
Senior Holder.
"TRANSACTIONS" has the meaning set forth in the second Whereas clause of
this Agreement.
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