1
Exhibit 2(b)
AGREEMENT OF MERGER
AMONG
TOPAZ BROADCASTING, INC.
AND
REGENT BROADCASTING OF VICTORVILLE, INC.
AND
REGENT COMMUNICATIONS, INC.
December 17, 1997
2
TABLE OF CONTENTS
Page
----
DEFINITION OF TERMS
1. Definition of Terms
(a) Topaz Stock...........................................................2
(b) Best Knowledge........................................................2
(c) Broadcast Assets......................................................2
(d) Budget................................................................3
(e) Closing Date..........................................................3
(f) Commission............................................................3
(g) Commission's Order....................................................3
(h) Constituent Corporations..............................................3
(i) Final Order...........................................................3
(j) Financials............................................................3
(k) Licenses..............................................................3
(l) Series E Preferred Stock..............................................3
(m) Station...............................................................4
AGREEMENT TO MERGE
2. Agreement......................................................................4
3. Action to Effect Merger........................................................4
4. Certificate of Incorporation and By-Laws.......................................4
5. Directors......................................................................4
6. Officers.......................................................................4
7. Stockholder Approval; Effectiveness of Merger..................................4
8. Authorized Shares of Surviving Corporation.....................................5
9. Authorized Shares of Disappearing Corporation..................................5
MODE OF EFFECTING MERGER
10. Cancellation of Shares.........................................................5
11. Funding of Consideration for Topaz Stock.......................................5
12. Payment of Cash and Issuance of Preferred Stock................................5
PURCHASE PRICE
13. (a) Consideration Before Adjustment.......................................6
(b) Consideration After Adjustment........................................6
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FCC MATTERS
14. Commission Consent to Transfer of Control......................................7
15. Applications for Consent - Cooperation of the Parties..........................7
16. Costs and Expenses.............................................................7
17. Operation of the Stations Before Closing.......................................7
18. Control and Access.............................................................7
19. Time for Commission Consent - Termination......................................7
COVENANTS, REPRESENTATIONS AND WARRANTIES OF TOPAZ
20. Covenants, Representations and Warranties of Topaz.............................8
(a) Corporate Standing and Authority......................................8
(b) Ownership of Topaz Stock..............................................8
(c) Corporate Power.......................................................9
(d) Capital Stock.........................................................9
(e) Due Authorization, Etc................................................9
(f) Affiliates............................................................9
(g) Rights to Acquire Securities..........................................9
(h) Corporate Records.....................................................9
(i) Right to Acquire Title to Broadcast Assets...........................10
(j) Financial Statements.................................................10
(k) Contracts............................................................10
(1) Government Authorizations............................................11
(m) Management, Key Employees and Accounts...............................12
(n) Tax Elections........................................................13
(o) Related Transactions.................................................13
(p) Taxes................................................................13
(q) Employee Benefit Plans...............................................13
(r) Compliance With FCC Regulations......................................14
(s) Personal Property....................................................14
(t) Environmental........................................................14
(u) Insurance............................................................15
(v) Laws, Regulations and Instruments....................................15
(w) Conduct of Station...................................................15
(x) Disposition of Assets................................................15
(y) Transmitter Sites....................................................15
(z) Litigation...........................................................16
(aa) No Conflict..........................................................16
(bb) Required Consents....................................................16
(cc) Intellectual Property................................................16
(dd) Qualifications for Transfer of Control...............................17
(ee) Absence of Certain Changes...........................................17
(ff) Personnel Information................................................17
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(gg) Outstanding Debt.....................................................18
(hh) Negative Covenants...................................................18
(ii) Affirmative Covenants................................................19
(jj) Additional Agreements................................................20
(kk) Join in Execution of Documents.......................................20
(ll) Full Disclosure......................................................20
COVENANTS, REPRESENTATIONS AND WARRANTIES
OF REGENT AND SUBSIDIARY
21. Covenants, Representations and Warranties of Regent and Subsidiary............20
(a) Corporate Standing and Authority.....................................20
(b) Corporate Power......................................................21
(c) Capitalization.......................................................21
(d) Join in Execution of Documents.......................................21
(e) Litigation...........................................................22
(f) No Conflict..........................................................22
(g) Licenses.............................................................22
(h) [Intentionally Left Blank]...........................................22
(i) Absence of Certain Changes...........................................22
(j) Laws, Regulations and Instruments....................................23
(k) Issuance of Series E Preferred Stock.................................23
(l) Financial Statements.................................................23
(m) No Adverse Changes...................................................23
(n) Qualifications for Transfer of Control...............................23
(o) Insurance............................................................24
(p) Taxes................................................................24
(q) Full Disclosure .....................................................24
(r) Covenants............................................................24
INDEMNIFICATION
22. Indemnification ..............................................................25
RISK OF LOSS
23. Risk of Loss..................................................................26
(a) Broadcast Assets.....................................................26
(b) Broadcast Transmission of the Stations Prior to Closing..............27
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CONDITIONS PRECEDENT TO SUBSIDIARY'S AND REGENT'S
OBLIGATION TO CLOSE
24. Conditions Precedent to Subsidiary's and Regent's Obligations.................27
(a) Representations, Warranties and Covenants............................27
(b) Delivery of Closing Documents........................................27
(c) Licenses.............................................................27
(d) Consents.............................................................28
(e) Final Order..........................................................28
(f) Adverse Proceedings..................................................28
(g) Environmental Examination............................................28
(h) Time Brokerage Agreement Compliance..................................28
(i) Material Adverse Change..............................................28
(j) Repair or Correction of Existing Condition...........................28
(k) Closing on Ruby APA..................................................28
CONDITIONS PRECEDENT TO TOPAZ'S OBLIGATION TO CLOSE
25. Conditions Precedent to Topaz's Obligations...................................29
(a) Representations, Warranties and Covenants............................29
(b) Purchase Price.......................................................29
(c) Delivery of Closing Documents........................................29
(d) Final Order..........................................................29
(e) Consents.............................................................29
(f) Adverse Proceedings..................................................29
(g) Issuance of Series E Preferred Stock.................................29
(h) Title and Environmental Examination..................................29
(i) Closing on Ruby APA..................................................30
CLOSING DOCUMENTS
26. Closing Documents to be Delivered by Topaz....................................30
27. Closing Documents to be Delivered by Regent and Subsidiary....................31
28. Escrow Deposit................................................................34
29. Remedies on Default-Prior to Closing..........................................34
30. Brokerage.....................................................................35
31. Survival of Representations and Warranties....................................35
MISCELLANEOUS PROVISIONS
32. Time Brokerage Agreement......................................................35
33. Headings......................................................................35
34. Execution.....................................................................36
35. Notices.......................................................................36
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36. Disclosure....................................................................37
37. Receipt of Series E Preferred Stock...........................................37
38. Amendment or Termination......................................................37
39. Entire Agreement..............................................................37
40. Governing Law and Forum.......................................................37
41. Successors and Assigns........................................................41
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AGREEMENT OF MERGER
THIS AGREEMENT is made and entered as of this 17th day of December
1997, by and among REGENT COMMUNICATIONS, INC., a Delaware corporation
(hereinafter referred to as "Regent"), REGENT BROADCASTING OF VICTORVILLE, INC.,
a Delaware corporation (hereinafter referred to as "Subsidiary"), and TOPAZ
BROADCASTING, INC., a Delaware corporation (hereinafter referred to as "Topaz").
PREAMBLE
W I T N E S E T H:
WHEREAS, Topaz is a party to an Asset Purchase Agreement (the "KIXA
APA"), to purchase all of the tangible and intangible assets used or held by
RASA Communications, Inc. for use in the operation of Radio Station KIXA-FM,
Lucerne Valley, California (the "Station"); and
WHEREAS, Subsidiary is a wholly-owned subsidiary of Regent; and
WHEREAS, the Board of Directors of Topaz and the Board of Directors of
Subsidiary deem it advisable that Topaz (sometimes referred to as "the
Disappearing Corporation") be merged into Subsidiary (sometimes referred to as
"the Surviving Corporation") under the laws of the States of Delaware in the
manner provided therefor pursuant to Section 251 and related sections of Title 8
of the Delaware Code and in a tax-free exchange in accordance with the
provisions of Section 1031 of the Code of the Internal Revenue Service; and
WHEREAS, as a result of such merger, all of the outstanding capital
stock of Topaz will be redeemed and cancelled by Regent; and
WHEREAS, the permit of the Station may not be assigned without prior
written consent of the Federal Communications Commission; and
WHEREAS, Regent, Subsidiary, and Topaz have negotiated the terms and
conditions of such merger, including the consideration to be paid to Xxxxxx X.
Xxxxxx, the sole stockholder of Topaz (hereinafter sometimes referred as
"Xxxxxx" or "Stockholder"); and
WHEREAS, Subsidiary and Ruby Broadcasting, Inc., a Delaware
corporation, the sole stockholder of which is Xxxxxx have entered into an Asset
Purchase Agreement (hereinafter the "Ruby APA") for the acquisition of radio
stations KIXW (AM) and KZXY-FM, Apple Valley, California; and
WHEREAS, Topaz and Regent have entered into a Time Brokerage Agreement
(the "Time Brokerage Agreement") of even date herewith concerning the operation
of the Station;
NOW, THEREFORE, in consideration of the mutual promises and the
conditions hereinafter contained, and subject to the conditions hereinafter set
forth, the parties hereto agree as follows:
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DEFINITION OF TERMS
-------------------
1. DEFINITION OF TERMS. In addition to the words and terms defined in
the recitals and elsewhere in this Agreement, the following terms shall have the
following meanings:
(a) "Topaz Stock" means all shares of the capital stock of
Topaz outstanding on the Closing Date and all options, warrants and other rights
to acquire the capital stock of Topaz (by exchange, conversion, exercise of
options, or otherwise) outstanding on the Closing Date.
(b) "Best Knowledge" means actual knowledge plus knowledge
which should be possessed by a reasonably prudent person in the same or similar
capacity as the person or persons to whom Best Knowledge is attributed. "Best
Knowledge of Topaz" means the Best Knowledge of Xxxxxx X. Xxxxxx. "Best
Knowledge of Regent" means the Best Knowledge of Xxxxx X. Xxxxxx and Xxxxxxx X.
Xxxxxxxx.
(c) "Broadcast Assets" means the KIXA Assets as defined in the
KIXA APA, together with any tangible and intangible assets used or held for use
by Topaz in the operation of the Station, including:
(i) All contracts for the sale of broadcast time or
advertising on the Station for cash which are valid and enforceable as of the
Closing Date.
(ii) All contracts for the sale of broadcast time or
advertising on the Station in exchange for merchandise or services (or a
combination of merchandise or services and cash) which are valid and enforceable
as of the Closing Date arising from the sale of broadcast time on the Station.
(iii) All other leases, contracts and agreements
relating to the operation of the Station and which are in effect on the Closing
Date, including without limitation those described in Schedule 20(k-1).
(iv) All the tangible property, assets, furniture,
fixtures, supplies, materials, goods, transmitters and equipment used or useful
in the operation of the Station, including, without limitation, those listed on
Schedule 20(s) and including replacements thereof or additions thereto made
between the date hereof and the Closing Date, less any retirements made in the
ordinary and usual course of business.
(v) Goodwill, privileges, permits, copyrights, logos,
jingles, service marks, trademarks and trade names (including rights in
applications in connection therewith), and other intangible rights used or owned
by, or under the control of, Topaz for use in the operation of the Station or in
connection therewith.
(vi) The correspondence, files, records, stock books,
minute books, books of account, logs, advertising lists, copy and other files,
books, writings and records of Topaz.
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(vii) All accounts and notes receivable of Topaz as
of the Closing Date arising from the sale of broadcast time on the Station.
(viii) Real property owned by Topaz as of the Closing
Date.
(ix) All other things owned by Topaz (excluding cash
on hand) used or useful in the operation of the Station and not disposed of in
the ordinary and usual course of business; provided, however, the Broadcast
Assets shall not include those items listed on Schedule 1(c)(ix).
(d) "Closing Date" means the date, time and place designated
by not less than ten (10) days' written notice from Subsidiary to Topaz, which
date shall not be less than five (5) days and not more than ten (10) days after
the occurrence of the later of the Final Order or the satisfaction of any
condition imposed by the Commission pursuant to the Commission's Order, or such
other date within the effective period (including any extension thereof) of the
Commission's order as shall be mutually agreed upon by Topaz and Subsidiary.
"Closing" means the redemption and cancellation of the Topaz Stock, the delivery
of the consideration therefor to Xxxxxx, and the execution and delivery of the
other documents as provided herein, which shall occur prior to the assignment of
the KIXA FCC Licenses to Subsidiary.
(e) "Commission" means the Federal Communications Commission.
(f) "Commission's Order" means the action of the Commission
consenting to the assignment of the KIXA FCC Licenses, as defined in the KIXA
APA, to Subsidiary.
(g) "Constituent Corporations" means Topaz Broadcasting, Inc.
and Regent Broadcasting of Victorville, Inc.
(h) "Final Order" means the Commission's Order as to which the
time for filing a request for all administrative or judicial review shall have
expired without any such filing having been made, or in the event of such
filing, the Commission's Order shall have been reaffirmed or upheld and the time
for seeking further administrative or judicial review with respect thereto shall
have expired without any request for such further review having been filed.
(i) "Financials" means the unaudited financial statements for
the Station for the month ended October 31, 1997, and for monthly periods
thereafter up to and including the Closing Date, furnished and to be furnished
to Regent and consisting of balance sheets, and statements of income and
retained earnings.
(j) "Licenses" means all licenses, permits and authorizations
issued by the Commission relative to the Station, as listed and described on
Schedule 2.1(a) to the KIXA APA.
(k) "Series E Preferred Stock" means the $5 Series E
Convertible Preferred Stock of Regent being issued and delivered to, and
acquired by, Xxxxxx under the terms of this Agreement, and having the attributes
described on Schedule 1(l).
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(l) "Station" means radio station KIXA-FM and any auxiliary
stations of such Station.
AGREEMENT TO MERGE
------------------
2. AGREEMENT. Topaz, a corporation duly organized under the State of
Delaware, and Subsidiary, a corporation duly organized and existing under the
laws of the State of Delaware, hereby agree that, in accordance with and subject
to the terms and conditions set forth herein, upon Effectiveness, Topaz shall be
merged with and into Subsidiary, the separate corporate existence of Topaz shall
cease, Subsidiary 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.
3. ACTION TO EFFECT MERGER. Prior to, from and after Effectiveness,
Topaz, Subsidiary 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.
4. 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 Subsidiary as in effect immediately prior to
Effectiveness shall be and continue to be the Certificate of Incorporation and
By-Laws of the Surviving Corporation.
5. DIRECTORS. The Board of Directors of Subsidiary shall be the Board
of Directors of the Surviving Corporation as of and after Effectiveness.
6. 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.........................................Xxxxx X. Xxxxxx
President, Chief Operating
Officer, Secretary............................Xxxxxxx X. Xxxxxxxx
Vice President-Finance,
Assistant Secretary................................Xxxxxxx Xxxxxx
Assistant Secretary.........................Xxxxxxxxx Xxxxxxxxxxx
Assistant Secretary................................Xxxx X. Xxxxxx
7. STOCKHOLDER APPROVAL; EFFECTIVENESS OF MERGER. This Agreement of
Merger has been approved by the stockholder of Topaz and the stockholder of
Subsidiary as provided by the applicable laws of the State of Delaware. If this
Agreement is not terminated or abandoned in accordance with its terms, this
Agreement of Merger shall be executed and certified by Topaz and Subsidiary
pursuant to Section 251(c) of the General Corporation Law of the State of
Delaware, and the Constituent Corporations shall prepare, file and record with
the Secretary of State of
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Delaware a Certificate of Merger in the form provided under such Section 251(c)
as soon as practicable after the Closing. The merger shall become effective
upon the due and proper filing of the Certificate of Merger as herein provided,
herein sometimes called the "Effectiveness."
8. AUTHORIZED SHARES OF SURVIVING CORPORATION. Subsidiary presently has
authorized capital stock of 1,000 common shares, $1.00 per share par value, of
which 100 shares are issued and outstanding to Regent.
9. AUTHORIZED SHARES OF DISAPPEARING CORPORATION. Topaz presently has
authorized and outstanding capital stock consisting of the following:
Total Total
Authorized Outstanding
Capital Stock Shares Shares
Common, $0.10 per 1,000 1,000
share par value
MODE OF EFFECTING MERGER
------------------------
10. CANCELLATION OF SHARES.
(a) At Effectiveness, by virtue of the merger and without any
action on the part of the holder of the capital stock of Subsidiary, each issued
and outstanding share of the capital stock of Subsidiary shall continue
unchanged and remain outstanding as a share of common stock of the Surviving
Corporation.
(b) At Effectiveness, all outstanding shares of Topaz stock
and all outstanding options and warrants to purchase Topaz stock shall be
redeemed and canceled, and each share held in Topaz'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 canceled and retired and shall cease to exist. At the
Closing, Xxxxxx shall surrender for redemption and cancellation his certificate
or certificates evidencing all of the outstanding shares of Topaz Stock.
11. FUNDING OF CONSIDERATION FOR TOPAZ STOCK. On or before the Closing
Date, Regent shall have issued to Subsidiary at least 400,000 shares of Series E
Preferred Stock.
12. PAYMENT OF CASH AND ISSUANCE OF PREFERRED STOCK. Subject to the
provisions of paragraph 13 hereof, at the Closing, Subsidiary shall:
(a) Cause to be delivered to Escrow Agent 40,000 shares of
Series E Preferred Stock, to be held, administered and released in accordance
with the Indemnification Escrow Agreement provided for in paragraph 22 hereof
(the "Indemnification Escrow Agreement"), which
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securities will be held in escrow for a period of one (1) year after the Closing
Date, and will be used to satisfy indemnification claims of Regent or Subsidiary
pursuant to paragraph 22 hereof; and
(b) Cause to be delivered to Xxxxxx a certificate or
certificates for 360,000 fully paid and nonassessable shares of Series E
Preferred Stock.
PURCHASE PRICE
--------------
13. (a) CONSIDERATION BEFORE ADJUSTMENTS. The consideration to be
paid for the Topaz Stock before adjustments as provided in paragraph 13(b) below
(the "Consideration Before Adjustments") will consist of the following:
(i) Four Hundred Thousand (400,000) shares of Series
E Preferred Stock.
(b) CONSIDERATION AFTER ADJUSTMENTS. At the Closing, a
computation shall be compiled by Topaz setting forth as of the Closing Date the
amount of Topaz's Cash (as hereinafter defined) and all known Liabilities of
Topaz as set forth below ("Closing Statement"). The Consideration Before
Adjustments shall be adjusted by (a) an increase by the amount of any Cash and
(b) a decrease by the amount of any Liabilities shown on the Closing Statement.
The Consideration, as so adjusted, shall hereinafter be referred to as the
"Consideration After Adjustments". In the event any adjustments are made to the
Consideration Before Adjustments pursuant to the terms of this paragraph 13(b),
such adjustments shall be made such that the total Consideration After
Adjustments payable to Xxxxxx for the Topaz Stock, shall be payable in shares of
Series E Preferred Stock, based on a per share stated value of $5.00.
As used herein, "Cash" shall mean any cash on hand and in banks,
certificates of deposit, treasury bills and marketable securities and other cash
equivalents, accounts receivable (less adequate reserves) and any other current
asset listed on Topaz's balance sheet) that are assets of Topaz after the
Closing Date.
As used herein, the term "Liabilities" shall mean at the Closing Date
the amount of all the liabilities of Topaz that should be recorded on a balance
sheet or disclosed in the notes to the financial statements as of 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 paragraph 1(i) 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) net trade and barter obligations that exceed $25,000 in the
aggregate, and (v) all other items which in accordance with generally accepted
accounting principles consistently applied should be included as Liabilities of
Topaz. Liabilities shall not include any liability under the KIXA APA or KIXA
TBA. For purposes of the determination of Liabilities, all expenses relating to
Topaz and arising from the conduct of Topaz's business and operation of the
Station (including without limitation such items as taxes, license fees,
utilities, and rents) shall be prorated between Regent and Topaz in accordance
with generally accepted
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accounting principles as of 11:59 p.m. Pacific time, on the date immediately
preceding the Closing Date.
FCC MATTERS
-----------
14. COMMISSION CONSENT TO TRANSFER OF CONTROL. Notwithstanding anything
herein to the contrary, the terms and conditions of this Agreement are subject
to any applicable Final Order prior to Closing granting consent to the
assignment of KIXA FCC Licenses to Subsidiary.
15. APPLICATIONS FOR CONSENT - Cooperation of the Parties. As set forth
in Section 7.2 of the KIXA APA, RASA shall join with Regent, in filing an
application for assignment of license. They shall promptly and diligently file
and expeditiously prosecute all necessary or desired amendments to such
application, briefs, pleadings, documents and supporting data, and take all such
actions and give all such notices as may be required or requested by the
Commission or as may be appropriate in an effort to expedite the consent of the
Commission.
16. COSTS AND EXPENSES. Topaz, Subsidiary and Regent each shall bear
its own legal fees and other costs and expenses with respect to this
transaction. All sales, transfer and documentary taxes, if any, in respect of
the Topaz Stock shall be borne equally by Topaz and Regent. All other fees and
expenses payable by Topaz but not paid prior to Closing shall be treated as a
current liability of Topaz at Closing and will be paid by the surviving entity
at Closing.
17. OPERATION OF THE STATION BEFORE CLOSING. Subject to Regent's time
brokering of the Station pursuant to the Time Brokerage Agreement, between the
date of this Agreement and the Closing Date, Topaz will perform its obligations
under the Time Brokerage Agreement dated August 29, 1997 by and between RASA and
Topaz (the "KIXA TBA").
18. CONTROL AND ACCESS. Subject to Regent's time brokering of the
Station pursuant to the Time Brokerage Agreement, prior to Closing, Regent and
its agents shall not directly or indirectly (i) control, supervise or direct, or
(ii) attempt to control, supervise or direct, the operations of the Station.
Except as otherwise provided herein, such operations shall be the sole
responsibility of and in the complete discretion of RASA. Regent shall be
permitted reasonable observation, access and inspection of Topaz's records and
property of the Station during regular business hours and be furnished on a
monthly basis (within 20 days following the end of each month) a profit and loss
statement and such other financial statements including historical statements,
relating to the Station as it may reasonably request and as are regularly
prepared by Topaz in the ordinary course of the business.
19. TIME FOR COMMISSION CONSENT-TERMINATION. If the Closing has not
occurred on or before December 1, 1998, this Agreement may be terminated at the
option of either Topaz or Subsidiary upon the giving of ten (10) days written
notice to the other, provided that the terminating party is not in material
breach of this Agreement or the Ruby APA and, in the absence of material breach
by any of the parties, Regent, Subsidiary and Topaz shall thereupon be released
and discharged of all obligations hereunder, and the Escrow Deposit under
paragraph 28 shall be refunded to Regent.
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COVENANTS, REPRESENTATIONS
AND WARRANTIES OF TOPAZ
-----------------------
20. COVENANTS, REPRESENTATIONS AND WARRANTIES OF TOPAZ. Topaz makes the
following covenants, representations and warranties:
(a) CORPORATE STANDING AND AUTHORITY.
(i) Topaz is, and on the Closing Date will be, a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware; authorized to conduct business within the State of
California (being the only state in which the Station's offices, equipment,
facilities and the other tangible Broadcast Assets are situated); and with all
corporate power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
(ii) This Agreement and the transactions contemplated
hereby have been ratified, adopted and approved by the Board of Directors and
the Stockholder of Topaz, and copies of all corporate proceedings of Topaz
relating to such authorization and approval, certified by its Secretary, will be
promptly delivered to Regent. This Agreement constitutes a valid and binding
obligation of Topaz, enforceable against it in accordance with its terms,
subject to bankruptcy laws, other federal and state laws affecting creditors'
rights generally and the availability of equitable remedies.
(b) OWNERSHIP OF TOPAZ STOCK. Based upon a certificate of
Xxxxxx to be delivered on or before the Closing Date and upon the stock records
of Topaz:
(i) all of the Topaz Stock is owned by Xxxxxx free
and clear of all liens, encumbrances, charges and assessments;
(ii) at the Closing, Xxxxxx will own the Topaz Stock,
which will be all of the outstanding capital stock of Topaz and all of the
outstanding options, warrants or other rights to acquire capital stock of Topaz;
(iii) there will be no restrictions with respect to
the redemption and cancellation of the Topaz Stock in accordance with the terms
of this Agreement;
(iv) the Topaz Stock is free and clear of all liens,
encumbrances, claims, charges, assessments and restrictions (other than
restrictions on transferability imposed under federal or state securities laws);
and
(v) none of the Topaz Stock is owned or voted by an
alien or a foreign government or a corporation organized under the laws of a
foreign country or by the representative of any of the above.
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(c) CORPORATE POWER. Topaz:
(i) has all requisite corporate power and authority
to own, lease and operate its assets and to carry on its business as now being
conducted by it and as proposed to be conducted by it between the date hereof
and the Closing Date;
(ii) has obtained all licenses, permits or other
authorizations and has taken all actions required by applicable law or
governmental regulations which are material to its business as now conducted;
(iv) has taken all necessary and proper corporate
action to enter into this Agreement and to consummate the transactions referred
to or set forth in this Agreement.
(d) CAPITAL STOCK. Topaz has authorized and outstanding
capital stock consisting solely of the following:
Total Total
Authorized Outstanding
Capital Stock Shares Shares
------------- ------ ------
Common, $0.10 per 1,000 1,000
share par value
(e) DUE AUTHORIZATION, ETC. All of the outstanding capital
stock of Topaz has been duly and validly authorized and issued and is fully paid
and nonassessable and none of such securities has been issued or acquired in
violation of any preemptive, subscription or other rights to purchase or acquire
such securities or in violation of the Securities Act of 1933, as amended (the
"Act"), or the securities or blue sky or any other applicable laws or
regulations of any jurisdiction.
(f) AFFILIATES. Except as set forth on Schedule 20(f), Topaz
does not own, directly or indirectly, any interest in any corporation, business
trust, joint stock company or other business organization, association,
partnership or venture.
(g) RIGHTS TO ACQUIRE SECURITIES. Except as identified on
Schedule 20(g), there are no outstanding rights, warrants, options,
subscriptions, agreements, or commitments giving anyone any current or future
right to require Topaz to sell or issue any capital stock or other securities or
any agreement or arrangement restricting the right of Topaz to issue or sell any
capital stock or other securities.
(h) CORPORATE RECORDS. The minute books of Topaz reflect
accurately all action taken by the Stockholder, the Board of Directors and the
committees of such Board and will reflect accurately all action required to be
taken by the Closing by the Stockholder, such Board and the committees of such
Board to enable Topaz to execute and perform this Agreement and all transactions
contemplated hereunder, and contain true and complete copies of the Certificate
of Incorporation and By-Laws of Topaz, and all amendments thereto. The stock
certificate books and
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share ledger of Topaz reflect accurately all information called for thereon and
all issuances and transfers in the capital stock of all classes. All issuances
and transfers reflected in said stock certificate books and ledger were duly and
validly taken in compliance with the laws of the applicable jurisdiction.
(i) RIGHT TO ACQUIRE TITLE TO BROADCAST ASSETS. Topaz has the
full and complete right to acquire good and marketable title to all of the
Broadcast Assets pursuant to the KIXA-APA, free and clear of all liens,
mortgages, pledges, conditional sales agreements, security interests, charges
and encumbrances, except those identified in the KIXA APA.
(j) FINANCIAL STATEMENTS. The Financials heretofore furnished
to Regent, as well as all financial information supplied, or to be supplied,
pursuant to paragraph 18 fairly present or will fairly present the financial
position and results of operations of Topaz as of the dates thereof and for the
periods represented. All said Financials and financial information, where
applicable, have been or will be prepared in accordance with the books and
records of Seller.
(k) CONTRACTS.
(i) Schedule 20(k-1) is a complete list or
description of all written and oral contracts relative to the Station in
existence at the date of this Agreement which are enforceable against Topaz or,
to the best knowledge of Topaz, RASA Communications, Inc., excluding:
(A) oral employment arrangements with
Station employees;
(B) written employment arrangements with
Station employees terminable without penalty or severance pay on no more than
two (2) weeks' notice;
(C) contracts for the sale of radio time or
advertising;
(D) contracts for the use, rental, or lease
of office equipment (other than telephone and computer equipment); and
(E) other miscellaneous contracts not
uncommon to broadcast properties which do not exceed $50,000 of expenditures or
revenues annually in the aggregate. All contracts for the sale of broadcast time
or advertising on the Station in exchange for merchandise or services on or
after the date hereof which will not be fully performed by the Closing Date to
which Topaz or RASA Communications, Inc. is a party or by which it is bound are
listed on Schedule 20(k-2) and are pre-emptible for cash sales with the
exception of those identified on Schedule 20(k-2) as not pre-emptible for cash
sales. True and complete copies of all contracts, leases and agreements listed
in Schedule 20(k-1) have been made available to Regent. Except as provided in
the KIXA APA, Topaz or RASA Communications, Inc. is and on the Closing Date will
be current in all of its obligations under all of the contracts, leases and
agreements listed on Schedule 20(k-1) and identified by mutual agreement of the
parties hereto as a material contract, lease or agreement, and each such
material contract, lease and agreement shall be in full force and
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17
effect and will not be impaired by any acts or omissions within the reasonable
control of Topaz, its agents or employees on the Closing Date except for those
that shall previously have expired by passage of time in accordance with their
respective terms. Except as set out on Schedule 20(k-1), there shall not, on the
Closing Date, be any other contracts not of the types excluded from being listed
on Schedule 20(k-1) outstanding with respect to the operation of the Station.
(ii) on the Closing Date, to the extent any
assignment may be necessary, Topaz will have full legal right and power to
assign its rights under all the material contracts, leases and agreements to
Regent or any wholly owned subsidiary of Regent as a result of the merger.
(iii) Except as set forth on Schedule 20(k-1), Topaz
is not a party to any written or oral:
(A) agreement or indenture relating to the
borrowing of money or to the mortgaging or pledging of, or otherwise placing a
lien on, any material asset or material group of assets of Topaz;
(B) guarantee of any obligation; or
(C) agreement whereunder Topaz or any
successor is obligated to make any conditional or other payment based upon the
future performance of Topaz or the Station.
(l) GOVERNMENT AUTHORIZATIONS.
(i) To the best knowledge of Topaz, the KIXA APA
contains a true and complete list of all 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), except for
such licenses, permits and authorizations the failure of which to obtain would
not have an adverse effect on Regent or the Station. Topaz has delivered to
Regent true and complete copies of the Station's Licenses and the other
licenses, permits and authorizations listed in Schedule 1(k), including any and
all amendments and other modifications thereto.
(ii) To the best knowledge of Topaz, as specified in
the KIXA APA, RASA Communications, Inc. is the authorized legal holder of the
Licenses and other licenses, permits and authorizations listed in the KIXA APA.
Except as set forth in the KIXA APA, none of the Licenses and other licenses,
permits and authorizations listed in the KIXA APA is subject to any restrictions
or conditions which would materially limit the full operation of the Station as
now operated.
(iii) To the Best Knowledge of Topaz, except as set
forth in the KIXA APA, and except for matters affecting the radio broadcast
industry generally, there are no applications, complaints, petitions or
proceedings pending or threatened as of the date hereof
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before the FCC or any other governmental or regulatory authority relating to the
business or operations of the Station. To the best knowledge of Topaz, except as
set forth in the KIXA APA, the Licenses and the other licenses, permits and
authorizations listed in the KIXA APA are in good standing, are in full force
and effect and are unimpaired by any act or omission of RASA Communications,
Inc. or its stockholders, officers, directors or employees. The operations of
the Station is in accordance with the Licenses and the underlying construction
permits and the other licenses, permits and authorizations listed in the KIXA
APA. Except as set forth in the KIXA APA, no proceedings are pending or
threatened, and there has not been any act or omission of Topaz or RASA
Communications, Inc. or any of their respective officers, directors,
stockholders or employees, which may result in the revocation, modification,
non-renewal or suspension of any of the Licenses or the other licenses, permits
and authorizations listed in the KIXA APA, the denial of any pending
applications, the issuance of any cease and desist order, the imposition of any
administrative actions by the FCC or any other governmental or regulatory
authority with respect to the Licenses or the other licenses, permits and
authorizations listed in the KIXA APA or which may affect Regent's ability to
continue to operate the Station as it is currently operated.
(iv) To the best knowledge of Topaz, the Station is
operating with the maximum facilities specified in the License.
(v) To the Best Knowledge of Topaz: (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 transmissions
of the Station or the public's reception of such transmissions.
(vi) Topaz has no reason to believe that the Licenses
and the other licenses, permits, or authorizations listed in the KIXA APA will
not be renewed in their ordinary course.
(vii) All reports, forms, and statements required to
be filed by Topaz with the FCC with respect to the Station have been filed and
are substantially complete and accurate.
(viii) To the Best Knowledge of Topaz, there are no
facts which, under the Communications Act of 1934, as amended, or the existing
rules and regulations of the FCC, would disqualify RASA Communications, Inc. as
assignor of the Licenses or cause the Licenses and the other licenses, permits
and authorizations listed in the KIXA APA not to be renewed in their ordinary
course.
(ix) To the best knowledge of Topaz, the operations
of the Station and all of the Broadcast Assets are in compliance in all respects
with ANSI Radiation Standards C95.1 - 1982.
(m) MANAGEMENT, KEY EMPLOYEES AND ACCOUNTS. Schedule 20(m-1)
sets forth the names of all employees whose compensation (including without
limitation, salaries, bonuses and commissions) from Topaz, or to the best
knowledge of Topaz, RASA Communications, Inc. for the year ended December 31,
1996 or for the current year on an annualized basis exceeds
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$20,000. Schedule 20(m-2) sets forth the name of each bank or savings
institution in which Topaz has an account or safe deposit box.
(n) TAX ELECTIONS. Topaz has not filed a consent to the
application of Section 341(f)(2) of the Internal Revenue Code of 1954, as
amended, with regard to any property held, acquired or to be acquired at any
time.
(o) RELATED TRANSACTIONS. Except as set forth on Schedule
20(o), at Closing there will be no outstanding debts and other obligations of
Topaz to its Stockholder or officers or directors, except for those incurred for
normal travel and entertainment in connection with the conduct of the business
of the Station, and were incurred in return for fair and adequate consideration
paid or delivered by it in cash, services, or other property. All debts of the
Stockholder or any of Topaz's officers or directors to Topaz are reflected on
the Financial Statements. Since December 31, 1996, Topaz has not made any
advances or loans to its Stockholder or any officers, directors, employees or
agents or its affiliates or associates, or advances for reasonable and necessary
business expenses and salespersons' commissions that will exist at Closing,
except as disclosed in Schedule 20(o).
(p) TAXES. Except as set forth on Schedule 20(p), Topaz 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. All returns identified on Schedule 20(p) to be filed will be filed and all
taxes required to be paid in respect of the periods covered by such returns will
be paid prior to the Closing Date. Topaz has delivered to Regent true and
complete copies of all federal, state and local tax returns of Topaz as filed
for the years ended December 31, 1994, 1995, and 1996. Topaz 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 Topaz has no liability for taxes
in excess of the amounts so paid. All of the tax liabilities of Topaz for the
current year to date and all prior years, whether or not they have become due
and payable, 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 Topaz or in the Financials. Topaz has not requested any extension of time
within which to file any tax returns which have not since been filed. The
federal income tax returns of Topaz have been examined by the federal tax
authorities or closed by applicable statute and satisfied for all periods to and
including fiscal year 1992. Except as set forth on Schedule 20(p), Topaz has not
been advised that any of its tax returns, federal, state, local or foreign, have
been or are being audited. Topaz 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.
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(q) EMPLOYEE BENEFIT PLANS. On the date hereof and on the
Closing Date, Topaz will not have in effect any bonus, premium, group insurance,
retirement, stock option, pension, profit sharing or similar plan or any
employment agreement with respect to any of its employees except as set forth on
Schedule 20(q) and Schedule 20(k-1).
(r) COMPLIANCE WITH FCC REGULATIONS. To the best knowledge of
Topaz, except as specified in the KIXA APA, the operation of the Station and all
of the Broadcast Assets are in compliance in all material 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 there are no
filed claims to the contrary.
(s) PERSONAL PROPERTY. Without material omission, the KIXA APA
and Schedule 20(s) hereto contain a list of all items of tangible personal
property owned by Topaz and, to the Best Knowledge of Topaz, RASA
Communications, Inc., respectively, and used in the conduct of the business and
operations of the Station. Schedule 20(s) also separately lists any tangible
personal property leased by Topaz pursuant to leases included within the
Contracts. Except as disclosed in the KIXA APA and Schedule 20(s), Topaz and, to
the Best Knowledge of Topaz, RASA Communications, Inc., respectively, have good
and marketable title to all of the items of tangible personal property which are
included in the Broadcast Assets (other than those subject to lease) and none of
such Broadcast 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. To the Best
Knowledge of Topaz, the properties listed in the KIXA APA and Schedule 20(s),
along with those properties subject to lease and included among the Contracts,
constitute all tangible personal property necessary to operate the Station as
the same is now being operated. Except as set forth in the KIXA APA and Schedule
20(s), to the Best Knowledge of Topaz, all items of tangible personal property
included in the Broadcast 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.
(t) ENVIRONMENTAL. Except as set forth in Schedule 20(u),
Topaz or to the Best Knowledge of Topaz, RASA Communications, Inc.,
respectively, have complied 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. To the Best Knowledge of Topaz, the technical equipment
included in the Broadcast Assets does not contain any PCBs. To the Best
Knowledge of Topaz, 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
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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 quantities in
violation of applicable laws and regulations) in, on, under, or about the real
property on which the Broadcast Assets are situated, including without
limitation the transmitter sites, or contained in the tangible personal property
included in the Broadcast Assets. To the Best Knowledge of Topaz, the Broadcast
Assets and Topaz's use thereof are not in violation of any Environmental Laws or
any occupational, safety and health or other applicable law now in effect.
(u) INSURANCE. Schedule 20(q) and Schedule 20(u) contain a
list and summary of the terms of all insurance coverage owned by Topaz. Subject
to the terms of the Time Brokerage Agreement, Topaz will maintain or cause to be
maintained all insurance coverage described in such Schedules until the Closing
Date, and copies of all insurance policies have been delivered to Regent or will
be delivered to Regent within three (3) days of when received by Topaz but not
later than 30 days from the date hereof.
(v) LAWS, REGULATIONS AND INSTRUMENTS. Topaz is not in
violation of any term of its Certificate of Incorporation or By-Laws. On the
date hereof and at Closing, the Station is and will be in compliance with all
applicable federal, state and local laws, ordinances and regulations. Topaz
agrees that prior to the Closing Date, if it becomes aware of any violations of
the Communications Act of 1934, as amended, or of the Rules and Regulations of
the Commission, it will remove all such violations or be responsible for the
costs of removing such, including the payment of any fines or forfeitures that
may be assessed before or after Closing for any such violations. Topaz is not in
default with respect to any judgment, order, injunction or decree of any court,
administrative agency, or other governmental authority to which Topaz is a named
party or of which it has received notice.
(w) CONDUCT OF STATION. Subject to Regent's time brokering of
the Station pursuant to the Time Brokerage Agreement, until the Closing Date,
Topaz will conduct its business in good faith in substantially the same manner
as heretofore. Topaz shall use its best efforts (based upon the exercise of
reasonably prudent business judgment) to maintain and preserve the present
character of its business, the quality of its programs, its business
organization and makeup and present customers and present business reputation,
to keep available to the Station the services of its present employees, and to
maintain and preserve the good will of its advertisers and listeners.
(x) DISPOSITION OF ASSETS. Between the date hereof and the
Closing Date, Topaz will not, and Topaz will not permit RASA Communications,
Inc. to, without the prior written consent of Regent, transfer, convey or assign
to any other person any of the Broadcast Assets unless, (i) in the case of
tangible assets included in the Broadcast Assets, the same are replaced by
assets of equal quality and usefulness or (ii) such disposition is in the
ordinary course of Topaz's or RASA's business and does not exceed $25,000 in the
aggregate.
(y) TRANSMITTER SITES. To the Best Knowledge of Topaz, except
as otherwise disclosed on Schedule 20(l), the Station's transmitter site is not
the subject of any official complaint
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or notice of violation of any applicable zoning ordinance or building code and
no such violation is known to exist. Topaz has no knowledge of any encroachment
on adjacent property, violation of any zoning ordinance or building code or use
or occupancy restriction, or pending or threatened condemnation proceeding which
would preclude or impair the use of such real estate or the improvements thereon
by Regent, consistent with the terms of the Station's transmitter site lease and
in the manner and for the purpose for which it is presently used.
(z) LITIGATION. To the Best Knowledge of Topaz, except as
disclosed in Schedule 20(z) or the KIXA APA, there is no litigation, action,
suit, investigation or proceeding pending or threatened, against Topaz or RASA
Communications, Inc., which may give rise to any claim against any of the
Broadcast Assets material to the operation of the Station or upon Topaz's
ability to perform in accordance with the terms of this Agreement, or which
might result in a monetary forfeiture in excess of $15,000, in any material
adverse effect upon the business operations or assets of Topaz, or in any
impairment of the right or ability of Topaz or RASA Communications, Inc., to
carry on its business as now conducted.
(aa) NO CONFLICT. Subject to obtaining the required consents
under material contracts, leases and agreements identified on Schedule 20(k-1)
and the KIXA APA, the execution, delivery and performance of this Agreement are
not prohibited by and will not conflict with, constitute grounds for termination
of, or result in any breach or violation of, or constitute a default under, the
provisions of any material contract, Topaz's Certificate of Incorporation or
By-laws (or other charter or organizational documents) or any applicable law,
judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority to which Topaz is a party or by which Topaz or any of the
Broadcast Assets are bound.
(bb) REQUIRED CONSENTS. Except as specifically identified in
Schedule 20(k-1) and the KIXA APA, Topaz is not a party to or bound by any
mortgage, lien, deed of trust, lease, agreement, instrument, order, judgment or
decree which would require the consent of another to the execution of this
Agreement or prohibit or require the consent of another to, or make unduly
burdensome the consummation of, the merger contemplated by this Agreement; and
the consummation of the merger contemplated by this Agreement will not result
(immediately or upon the giving of notice and/or upon the passage of a period of
time) in a breach of any term or provision of or constitute a default under any
mortgage, deed of trust, note or other contract, agreement, instrument, license
or permit to which Topaz is a party, or otherwise give any other party thereto a
right to terminate the same or result in an acceleration in the payment due
under any note or other contract, agreement, instrument, license or permit which
is binding on Topaz, or in the creation of any lien, security interest,
encumbrance or charge under any of the foregoing on any assets or properties of
Topaz.
(cc) INTELLECTUAL PROPERTY. Schedule 20(cc) hereto is a true
and complete list of all material Intellectual Property applied for, registered
or issued to, and owned by Topaz or under which Topaz is a licensee and which is
used in the conduct of Topaz's business and operations. Except as set forth on
Schedule 20(cc): (i) Topaz'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
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is licensed to Topaz, such interest is valid and uncontested by the licensor
thereof or any third party; (ii) all computer software located at the Station's
facilities or used in the Station's business or operations is properly licensed
to Topaz, and all of Topaz's uses of such computer software are authorized
under such licenses; (iii) all of Topaz's right, title and interest in and to
the Intellectual Property and computer software shall be assignable to Regent
at Closing, and upon such assignment (should such assignment be necessary),
Regent shall receive complete and exclusive right, title, and interest in and
to all tangible and intangible property rights existing in the Intellectual
Property; and (iv) there are no infringements or unlawful use of such
Intellectual Property by Topaz in connection with Topaz's business or
operations.
(dd) QUALIFICATIONS FOR TRANSFER OF CONTROL. To the Best
Knowledge of Topaz, RASA Communications, Inc. is presently a permittee in good
standing with the Commission, and Topaz has no knowledge of any fact or
circumstance that could reasonably prevent approval of the transaction
contemplated by this Agreement or the renewal of the Licenses, except as
disclosed in the KIXA APA.
(ee) ABSENCE OF CERTAIN CHANGES. Since September 1, 1997,
except as specifically noted in the Financials heretofore delivered or the
Schedules hereto:
(i) Topaz has not created, assumed, or suffered any
mortgage, pledge, lien or encumbrance on any of the Broadcast Assets;
(ii) Topaz has conducted its business only in the
ordinary course consistent with past practices;
(iii) there has not been:
(A) any material adverse change in the
business, assets, capitalization, operations, properties, prospects, or
condition (financial or otherwise) of Topaz, or any damage, destruction or loss
(whether or not covered by insurance) materially and adversely affecting any of
the Broadcast Assets;
(B) any sale, assignment, lease or other
transfer or disposition of any of the properties or assets used or intended for
use in the operation of the Station except in the ordinary course of business,
in connection with the acquisition of similar property or assets in the normal
and usual course of business;
(C) any lease, agreement, contract,
obligation, or commitment entered into in connection with the operation of the
Station except in the normal and usual course of business;
(D) any issuance of bonds, notes or other
corporate securities by Topaz;
(E) any declaration of payment or payments
or distribution of cash or other property to the Stockholder with respect to
Topaz's capital stock; or
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(F) any purchase or redemption of any shares
of Topaz's capital stock.
(ff) PERSONNEL INFORMATION.
(i) Except as set forth thereon, Schedule 20(ff)
contains a true and complete list of all persons employed by Topaz at the
Station, including date of hire, a description of material compensation
arrangements (other than employee benefit plans set forth in Schedule 20(q)) and
a list of other material terms of any and all agreements affecting such persons
and their employment by Topaz or RASA Communications, Inc. Topaz has received no
notice that, and it is not aware of, any individual employee who shall or is
likely to terminate his or her employment relationship with the Station upon the
execution of this Agreement.
(ii) Topaz or RASA Communications, Inc.,
respectively, with respect to the Station, is not a party to any contract or
agreement with any labor organization, nor has Topaz 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 Topaz at the
Station. Topaz has no knowledge of any organizational effort currently being
made or threatened by or on behalf of any labor union with respect to employees
of Topaz or RASA Communications, Inc. respectively, at the Station.
(iii) Except as disclosed in Schedule 20(ff), Topaz,
with respect to the Station, has complied in all material respects with all 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, equal employment opportunity and payment and withholding
of taxes.
(gg) OUTSTANDING DEBT. Schedule 20(gg) correctly lists all
outstanding debt of Topaz that will exist at the Closing (other than short term
debt payable on demand or within one year from the creation thereof and incurred
in the ordinary course of business).
(hh) NEGATIVE COVENANTS. Subject to the KIXA APA, the KIXA TBA
and Regent's time brokering of the Station pursuant to the Time Brokerage
Agreement (which provisions shall control over any inconsistent provision in
this paragraph 20(hh), between the date hereof and the Closing Date, Topaz and
RASA Communications, Inc. will not, without the prior written consent of Regent:
(i) Increase the compensation payable or to become
payable to any of the employees of Topaz except on a case by case basis and then
only such that any increase shall not exceed 6% of any such employee's current
salary or except pursuant to contractual commitments described on Schedule
20(k-1);
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(ii) Enter into any contract, lease or commitment or
engage in any transaction relating to the Station, other than in the ordinary
course of business consistent with past practices;
(iii) Cancel, modify, amend, or in any manner within
its reasonable control impair any of the material contracts, leases or other
agreements identified on Schedule 20(k-1) relating to the Station which are
included in the Broadcast Assets;
(iv) Create any mortgage, pledge, lien or encumbrance
affecting any of the Broadcast Assets which is not paid off concurrently with
the Closing;
(v) Sell, assign, lease or otherwise transfer or
dispose of any of the Broadcast Assets;
(vi) Consolidate with or merge into any other person
or entity or permit any person or entity to merge into or consolidate with it;
(vii) Declare, make or incur any liability to make
any dividends or other distributions on its capital stock;
(viii) Redeem or otherwise acquire any shares of its
capital stock;
(ix) Issue or sell any shares of its capital stock,
warrants, options or other rights to acquire any shares of its capital stock,
except for shares issued pursuant to the exercise of warrants or options
outstanding as of the date hereof;
(x) Amend its Certificate of Incorporation or
By-Laws; or
(xi) Borrow or incur any indebtedness unless such
indebtedness is to be paid off concurrently at Closing.
(ii) AFFIRMATIVE COVENANTS. Between the date hereof and the
Closing Date, Topaz will:
(i) Give to Regent and its authorized representatives
full access during normal business hours to all properties, books, records,
contracts and documents and furnish or cause to be furnished to Regent or its
authorized representatives all information with respect to the affairs and
business of the Station as Regent may reasonably request, including monthly
profit and loss statements and notice of changes in full-time employees;
(ii) Notify Regent in writing of any new litigation
pending or threatened against Topaz, or to the Best Knowledge of Topaz, RASA
Communications, Inc., or any damage to or destruction of any Broadcast Assets;
(iii) Furnish to Regent, at Topaz's expense,
Financials for each month up to the Commencement Date under the Time Brokerage
Agreement;
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(iv) Promptly notify Regent in writing of any
material adverse developments with respect to the business or operations of
Topaz, RASA Communications, Inc. (to the extent Topaz is notified of such by
RASA Communications, Inc.) or the Station; and
(v) Immediately following the execution of this
Agreement, Topaz agrees to diligently pursue obtaining all consents and
approvals required to be obtained by it, including those required under the
material contracts, leases and agreements identified on Schedule 20(k-1). Within
forty-five (45) days after the execution of this Agreement and every twenty (20)
days thereafter, Topaz will notify Regent of the status of obtaining the
required consents and approvals, which consents and approvals have been
obtained, and any other information relating thereto.
(jj) ADDITIONAL AGREEMENTS. Subject to the terms and
conditions herein provided, Topaz agrees to use its reasonable best 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
transaction contemplated by this Agreement. In case at any time after the
Closing any further action is reasonably necessary to carry out the purposes of
this Agreement, Topaz shall take, or cause to be taken, such action.
(kk) JOIN IN EXECUTION OF DOCUMENTS. Topaz will join with
Subsidiary and Regent, and shall request its Stockholder to join with Subsidiary
and Regent, at such time as all conditions precedent to the transactions
contemplated by this Agreement have been fulfilled, in executing and delivering
all documents which may be necessary or appropriate to effect the transactions
contemplated by this Agreement.
(ll) FULL DISCLOSURE. No written representation or warranty
made by Topaz contained in this Agreement nor any certificate, document or other
instrument furnished or to be furnished by Topaz pursuant hereto contains any
untrue statement of a material fact, or omits to state any material fact
required to make any statement contained herein or therein not misleading in
light of the circumstances under which such statement is made. Topaz is not
aware of any impending or contemplated material 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. To Topaz's knowledge,
as of the date of this Agreement there is no fact which materially adversely
affects the business, conditions, affairs or operations of Topaz or the Station
which has not been set forth in this Agreement or otherwise disclosed in writing
by Topaz to Regent or its representatives.
COVENANTS, REPRESENTATIONS
AND WARRANTIES OF REGENT AND SUBSIDIARY
---------------------------------------
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21. COVENANTS, REPRESENTATIONS AND WARRANTIES OF REGENT AND SUBSIDIARY.
Regent, on behalf of itself and on behalf of Subsidiary, makes the following
representations, warranties, and covenants:
(a) CORPORATE STANDING AND AUTHORITY.
(i) Each of Regent and Subsidiary is now and on the
Closing Date will be a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and on the Closing Date will
be in good standing under the laws of any other states in which its offices,
equipment, facilities and other tangible assets are situated (except to the
extent Subsidiary is deemed to have offices in Kentucky); and has all corporate
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
(ii) Each of Regent's other subsidiaries is now and
on the Closing Date will be a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation; and is
qualified as a foreign corporation in good standing under the laws of any other
states in which its offices, equipment, facilities and other tangible assets are
situated.
(iii) This Agreement and the transactions
contemplated hereby have been ratified, adopted and approved by the Boards of
Directors of each of Regent and Subsidiary, and by Regent in its capacity as the
sole stockholder of Subsidiary, and copies of all corporate proceedings of each
of Regent and Subsidiary relating to such authorization and approval, certified
by its Secretary, will be promptly delivered to Topaz. This Agreement
constitutes a valid and binding obligation of Regent and Subsidiary, enforceable
in accordance with the terms, subject to bankruptcy laws, other federal and
state laws affecting creditors' rights generally and availability of equitable
remedies.
(b) CORPORATE POWER. To its Best Knowledge, Regent has
obtained all licenses, permits or other authorizations and has taken all actions
required by applicable law or governmental regulations which are material to its
business as now conducted and as of the Closing Date as will be conducted, and
has conducted its business in compliance in all material respects with all
applicable laws and regulations.
(c) CAPITALIZATION. The authorized capital stock of Regent is
10,000,000 shares of Common Stock (of which 591,408 shares are issued and
outstanding as of October 10, 1997), and 10,000,000 shares of Preferred Stock,
of which 540,000 shares have been designated (and 620,000 shares will be, prior
to the Closing Date, designated) Series A Preferred (540,000 shares of which are
issued and outstanding as of October 10, 1997), 1,000,000 shares prior to the
Closing Date will be designated Series B Preferred (1,000,000 shares of which
prior to the Closing Date may be issued and outstanding), 4,000,000 shares prior
to the Closing Date will be designated Series C Preferred (up to as many as
4,000,000 shares of which prior to the Closing Date may be issued and
outstanding), 1,000,000 shares prior to the Closing Date will be designated
Series D Preferred (1,000,000 shares of which prior to the Closing Date may be
issued and outstanding), and _________ shares prior to the Closing Date will be
designated Series E Preferred available for issuance pursuant to the terms of
this Agreement. As of the Closing Date and taking into account
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the issuance of the Series E Preferred Stock pursuant to this Agreement and
assuming no other shares of Preferred Stock other than as projected in this
paragraph have been issued, the holders of all of the Preferred Stock would be
entitled to convert the same into approximately ________ Common Shares (without
taking into account the application of the anti-dilution provisions of such
Preferred Stock). Except as stated herein, there are no other outstanding
rights, warrants, options, subscriptions, agreements, or commitments giving any
current or future right to require Regent to sell or issue any capital stock or
other securities or any agreement or arrangement restricting the right of Regent
to issue or sell any capital stock or other securities. Except as disclosed,
there are no stockholders agreements. Between the date hereof and the Closing
Date Regent will not issue any additional Common Shares or Preferred Stock,
except (i) pursuant to the conversion of the outstanding Preferred Stock, (ii)
pursuant to the exercise of options granted after the date hereof providing for
an exercise price no less than $5.00 per share, or (iii) for a consideration no
less than $5.00 per share.
(d) JOIN IN EXECUTION OF DOCUMENTS. Regent and Subsidiary will
join with Topaz at such time as all conditions precedent to the transactions
contemplated by this Agreement have been fulfilled, in executing and delivering
all documents which may be necessary or appropriate to effect the transactions
contemplated by this Agreement.
(e) LITIGATION. There is no litigation, action, suit,
investigation or proceeding pending, or to the Best Knowledge of Regent and
Subsidiary, threatened, against Regent or Subsidiary which may give rise to any
claim upon any of Regent's Assets or upon Regent's or Subsidiary's ability to
perform in accordance with the terms of this Agreement, or which might result in
a monetary forfeiture in excess of $5,000, in any material adverse effect upon
the business, operations or assets of Regent or Subsidiary, or in any impairment
of the right or ability of Regent or Subsidiary to carry on its business as now
conducted.
(f) NO CONFLICT. Subject to the obtaining of the consents
referred to in paragraph 21(h), the execution, delivery and performance of this
Agreement are not prohibited by and will not conflict with, constitute grounds
for termination of, or result in any breach or violation of, or constitute a
default under, any material laws or regulations or agreement, Certificate of
Incorporation or Bylaws, each as amended, or other instrument to which Regent or
Subsidiary is a party or by which either is bound.
(g) LICENSES. Regent's subsidiaries (other than Subsidiary)
hold licenses, permits and authorizations ("Regent's Licenses") issued by the
Commission to operate the radio stations owned by said subsidiaries ("Regent's
Stations"). Regent's Licenses are free and clear of legal disqualifications or
other restrictions of such a nature as would materially limit the full operation
of Regent's Stations as presently authorized and conducted. Regent's Licenses
are in good standing and have been regularly renewed with the normal expiration
date. The operation of Regent's Stations is in accordance with Regent's
Licenses. Regent has no knowledge of any matter that might result in the
suspension or revocation of Regent's Licenses. There are no Commission citations
outstanding with respect to Regent's Stations or their operations. Said Licenses
constitute the only permission necessary from the Commission to enable Regent to
conduct its broadcasting business as presently conducted and contemplated. There
are no petitions to deny, material
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complaints or proceedings, or applications known by Regent to be pending before
the Commission and relating to the business and operation of Regent's Stations.
(h) [INTENTIONALLY LEFT BLANK].
(i) ABSENCE OF CERTAIN CHANGES. Since December 31, 1996, other
than as set forth in Schedule 21(i) there has not been:
(i) Any damage, destruction or loss (whether or not
covered by insurance) materially and adversely affecting the properties of
Regent and its subsidiaries, taken as a whole;
(ii) Any issuance of bonds, notes or other corporate
securities by Regent;
(iii) Any declaration of payment or payments or
distribution of cash or other property to stockholders of Regent with respect to
Regent's capital stock; or
(iv) Any purchase or redemption by Regent of any
shares of Regent's capital stock.
(j) LAWS, REGULATIONS AND INSTRUMENTS. Neither Regent nor
Subsidiary is in violation of any term of its Certificate of Incorporation, as
may be amended, or By-laws, as may be amended. On the date hereof and at
Closing, Regent's Stations will be in compliance in all material respects with
all applicable federal, state and local laws, ordinances and regulations. Regent
agrees that prior to the Closing Date, if it becomes aware of any violations of
the Communications Act of 1934, as amended, or of the Rules and Regulations of
the Commission, it will remove all such violations or be responsible for the
costs of removing such, including the payment of any fines or forfeitures that
may be assessed before or after Closing for any such violations. To its Best
Knowledge, neither Regent nor Subsidiary is in default with respect to any
judgment, order, injunction or decree of any court, administrative agency, or
other governmental authority in any respect material to this transaction.
(k) ISSUANCE OF SERIES E PREFERRED STOCK. The Series E
Preferred Stock, when and if issued in accordance with the provisions of this
Agreement, will be validly issued, fully paid and nonassessable, and will be
free of any liens or encumbrances (other than those created by Xxxxxx), and will
not be subject to any restrictions on transferability contained in Regent's
Certificate of Incorporation, as amended, or in any agreement to which Regent is
a party that are not similarly applicable to other Series of Preferred Stock;
provided, however, that such shares may be subject to restrictions on transfer
under state securities laws and federal communications and/or securities laws.
(l) FINANCIAL STATEMENTS. The unaudited financial statements
of Regent, as of December 31, 1996, together with the related statements of
operations, stockholders' equity and changes in financial position for the
periods then ended, and balance sheets as of such dates, will
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be delivered to Topaz when they have been prepared. Regent will also deliver to
Topaz as soon as such are available unaudited balance sheets, income statements
and statements of changes in financial position of Regent for the nine-month
period ended September 30, 1997 (all the foregoing financial statements of
Regent referred to as "Regent's Financial Statements"). Regent's Financial
Statements will fairly present the financial position of Regent as of the
pertinent dates and the results of Regent's operations for the year or periods
then ended, in each case in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods involved (except
for the absence of footnotes and year-end adjustments).
(m) NO ADVERSE CHANGES. Except as set forth in Schedule 21(m),
since December 31, 1996, there has been no material adverse change in the
business, operations, prospects, properties or condition (financial or
otherwise) of Regent.
(n) QUALIFICATIONS FOR ASSIGNMENT OF LICENSE AND MERGER.
Regent has no knowledge of any fact or circumstance that could reasonably
prevent approval of the transaction contemplated by this Agreement, its
acquisition of the Station or the renewal of the licenses for any of the Regent
Stations.
(o) INSURANCE. Schedule 21(o) contains a list and summary of
the terms of all insurance coverage carried by Regent. Regent will maintain or
cause to be maintained all insurance coverage described in such Schedule through
the Closing Date, and copies of all insurance policies have been delivered to
Topaz or will be delivered to Topaz within three (3) days of when received by
Regent but not later than 30 days from the date hereof.
(p) TAXES. Regent 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. Regent 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 Regent has no liability for taxes in
excess of the amounts so paid. All of the tax liabilities of Regent 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 Regent. Regent 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. There are no present disputes as to taxes of any nature
payable by Regent which in any event could adversely affect any of the Broadcast
Assets or the operation of the Station. Regent has not been advised that any of
its tax returns, federal, state, local or foreign, have been or are being
audited. Regent 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
ever kind and description and related governmental charges imposed by the laws
and regulations of any
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governmental jurisdiction, whether such taxes are due or claimed to be due from
them by federal, state, local or foreign taxing authorities.
(q) FULL DISCLOSURE. No representation or warranty made by
Regent contained in this Agreement nor any certificate, document or other
instrument furnished or to be furnished by Regent pursuant thereto 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. Regent 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. There is no fact which materially adversely affects the business,
condition, affairs or operations of Regent which has not been set forth in this
Agreement or otherwise disclosed in writing by Regent to Topaz or its
representatives.
(r) COVENANTS. Regent covenants that it will continue to use
the Broadcast Assets in and as a business enterprise in order to satisfy the
requirements of Section 1031 of the Internal Revenue Code.
INDEMNIFICATION
---------------
22. INDEMNIFICATION.
(a) After the Closing, subject to subparagraphs 22(e) and (f),
Xxxxxx shall indemnify and hold Regent and Subsidiary, their respective
affiliates, successors and assigns, harmless from and against:
(i) Any and all damages or deficiency resulting from
any material misrepresentation or breach of warranty by Topaz, or nonfulfillment
of any agreement or obligation assumed or required to be assumed by Topaz or
Xxxxxx under this Agreement, or from any misrepresentation in or omission from
any certificate or other instrument furnished to Regent or Subsidiary pursuant
to this Agreement or in connection with any of the transactions contemplated
hereby; and
(ii) Any and all claims, actions, suits, proceedings,
damages, assessments, judgments, costs and expenses, including reasonable
attorneys' fees, incurred by Regent as a result of Topaz's or Xxxxxx'x failure
or refusal to compromise or defend any claim incident to the foregoing
provision, or failure otherwise to comply with the foregoing provision.
(b) As security for the performance of the indemnification of
Regent and Subsidiary herein, Regent, Subsidiary and Topaz (on behalf of itself
and Xxxxxx) shall enter into an Indemnification Escrow Agreement with Security
Title & Guaranty, Inc., as Escrow Agent, in substantially the form attached
hereto as Schedule 22(b). The Indemnification Escrow Agreement shall be funded
by Forty Thousand (40,000) shares of the Series E Preferred Stock to be issued
to Xxxxxx at Closing. Said shares will be held in escrow pursuant to the
Indemnification Escrow Agreement for a period of one (1) year.
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(c) If any claim or liability shall be asserted against Regent
or Subsidiary which would give rise to a claim by Regent or Subsidiary against
Xxxxxx for indemnification under the provisions of this paragraph, Regent or
Subsidiary shall promptly notify Xxxxxx of the same, and Xxxxxx shall be
entitled at his own expense to compromise or defend any such claim.
(d) After the Closing, subject to subparagraphs 22(e) and (f),
Regent and Subsidiary shall jointly and severally indemnify and hold Topaz and
Xxxxxx and their respective successors and assigns harmless from and against:
(i) Any and all damages or deficiency resulting from
any misrepresentation, breach of warranty, or nonfulfillment of any agreement or
obligation assumed or required to be assumed by Regent or Subsidiary under this
Agreement, or from any misrepresentation in or omission from any certificate or
other instrument furnished to Topaz pursuant to this Agreement or in connection
with any other transactions contemplated hereby; and
(ii) Any and all claims, actions, suits, proceedings,
damages, assessments, judgments, costs and expenses, including reasonable
attorneys' fees, incurred by Topaz or Xxxxxx as the result of Regent's or
Subsidiary's failure or refusal to defend or compromise any claim incident to
the foregoing provision, or failure otherwise to comply with the foregoing
provision.
(e) If any claim or liability shall be asserted against Xxxxxx
which would give rise to a claim by Xxxxxx against Regent or Subsidiary for
indemnification under the provisions of this paragraph, Xxxxxx shall promptly
notify Regent or Subsidiary of the same, and Regent or Subsidiary shall be
entitled at its own expense to compromise or defend any such claim.
(f) No party shall be entitled to indemnification hereunder
unless such claim for indemnification is asserted prior to one (1) year after
the Closing Date, except that this time limitation shall not apply (i) to claims
relating to title or tax matters, or (ii) to limit recovery of damages resulting
from any intentional or fraudulent action or inaction which results in a
material breach or the failure of a condition precedent to be met or any
intentional or fraudulent misrepresentation or omission of a material fact.
(g) No party shall be entitled to indemnification under this
paragraph 22 for damages or deficiencies in the event there is a failure to
close this Agreement. The remedies of the parties prior to Closing shall be
governed by paragraphs 28 and 29.
RISK OF LOSS
------------
23. RISK OF LOSS.
(a) Broadcast Assets. The risk of loss, damage or destruction
from any cause to the tangible Broadcast Assets, which is not the
responsibility of Regent under the express terms of the Time Brokerage
Agreement, shall be borne by Topaz at all times between the date of this
Agreement and the Closing Date. In the event of any such loss, damage or
destruction, Topaz shall use its best efforts to cause RASA Communications,
Inc. to repair, replace or restore any such Broadcast Asset in accordance
with the KIXA TBA prior to the Closing Date. In the event of
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substantial damage to any of the Broadcast Assets or in the event of the
occurrence of any damage or event which prevents broadcast transmission of the
Station in the normal and usual manner and substantially in accordance with its
license, Topaz shall promptly notify Regent of the same in writing, specifying
with particularity the loss or damage incurred, the cause thereof if known or
reasonably ascertainable, and an estimate of the extent to which restoration,
replacement and repair of the property lost or destroyed will be reimbursed
under the insurance coverage. In the event the damage has not been restored or
repaired by the Closing Date, then Regent and Subsidiary shall have the option
to:
(i) postpone the Closing Date until such time not
later than December 1, 1998 as the property has been completely repaired,
replaced or restored; or
(ii) terminate this Agreement and be refunded the
Escrow Deposit under paragraph 28 if Topaz has not acted diligently to repair,
replace or restore such Broadcast Assets; or
(iii) elect to consummate the Closing and accept the
property in its then condition in which event all proceeds of insurance received
or to be received shall be the property of the Surviving Corporation but shall
not be included in current assets for purposes of the calculations in paragraph
13(b).
In the event Regent and Subsidiary elect to postpone
the Closing Date, Topaz, Regent and Subsidiary will cooperate to extend the time
during which this Agreement must be closed as specified in the Commission's
Order.
(b) BROADCAST TRANSMISSION OF THE STATIONS PRIOR TO CLOSING.
Seller shall promptly notify Buyer if any of the normal broadcast transmissions
of the Station are interrupted, interfered with or in any way impaired, and
shall provide Buyer with prompt written notice of the problem and the measures
being taken to correct such problem. If such 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 than five (5) such events occur within any thirty
(30) day period, or if the Station shall be off the air for more than one
hundred twenty (120) consecutive hours, then Buyer shall have the right to
terminate this Agreement, provided that notice of termination is given within
thirty (30) days of the occurrence of such event.
CONDITIONS PRECEDENT TO SUBSIDIARY'S AND REGENT'S
OBLIGATION TO CLOSE
-------------------
24. Conditions Precedent to Subsidiary's and Regent's Obligations. If
at the Closing Date the following conditions are satisfied, Subsidiary, subject
to the provisions of paragraph 23 hereof, shall be obligated to merge with Topaz
in accordance with the terms and conditions of this Agreement:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of Topaz contained herein or in any Schedule
hereto or in any list, certificate or
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document delivered pursuant to the provisions hereof shall be true in all
material respects as of the date of this Agreement and as of and at the Closing
Date as though made on such Closing Date except for changes (a) expressly
permitted or contemplated by the terms of this Agreement; (b) caused by the acts
of Regent during the term of the Time Brokerage Agreement; or (c) in the
ordinary course of business which are not individually or in the aggregate,
material and adverse. Topaz shall have performed and complied in all material
respects with all obligations and covenants required by this Agreement to be
duly performed or complied with by Topaz on or prior to the Closing Date. Topaz
shall have delivered to Subsidiary a certificate dated the Closing Date and
signed by an officer of Topaz attesting to the above.
(b) DELIVERY OF CLOSING DOCUMENTS. Topaz shall have delivered
to Subsidiary the Closing Documents described in paragraph 26 of this Agreement.
(c) LICENSES. RASA Communications, Inc. shall be the holder of
the Licenses, and such Licenses shall be free and clear of conditions, competing
applications, petitions to deny, material complaints, appeals or any
restrictions as might limit the operation or prospects of the Stations as
presently authorized.
(d) CONSENTS. On the Closing Date, each person, association,
corporation or other entity, the consent or approval of which to the surrender
and cancellation of the Topaz Stock, and the merger of Topaz into Subsidiary, is
then required shall have duly consented thereto, and all other consents required
under the terms of the material contracts, leases and agreements identified on
Schedule 20(k-1) shall have been obtained.
(e) FINAL ORDER. The Commission's Order shall have become a
Final Order.
(f) ADVERSE PROCEEDINGS. As of the Closing Date, no suit,
action, claim or governmental proceeding or investigation shall be pending or
shall have been instituted, taken, presented or threatened against Topaz which
makes unlawful the carrying out of this Agreement, causes it to be rescinded or
imposes a lien on or requires Regent to divest itself of, any shares of Topaz
Stock.
(g) ENVIRONMENTAL EXAMINATION. Regent shall have conducted
and/or obtained a reasonably satisfactory review and examination of and
condition of the properties owned by RASA Communications, Inc. (including such
environmental assessments of said properties as may be currently in existence or
as Regent may elect to have conducted at its expense), to be completed within
sixty (60) days after the execution of this Agreement.
(h) TIME BROKERAGE AGREEMENT COMPLIANCE. The Time Brokerage
Agreement shall not have been terminated by Regent or its affiliate as permitted
by the Time Brokerage Agreement as a result of Topaz's material noncompliance
with its obligations under the Time Brokerage Agreement.
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(i) MATERIAL ADVERSE CHANGE. No material adverse change in
condition of the Broadcast Assets, which change is caused by or arises out of
any breach by either Topaz or Xxxxxx of any of its representations, warranties,
covenants or agreements hereunder or under the Time Brokerage Agreement, shall
have occurred, or be threatened. No material adverse change shall be deemed to
occur due to changes in the financial condition, ratings or operation of the
Station during the period of the Time Brokerage Agreement.
(j) REPAIR OR CORRECTION OF EXISTING CONDITION. Topaz warrants
and represents that the studio and transmitter facilities and equipment are in
good repair and condition, ordinary wear and tear excepted, as of the date of
this Agreement. Regent shall have until January 1, 1998 to examine such
equipment and facilities. Any items or conditions found by Regent and disclosed
to Topaz, which would make Topaz's warranties and representations untrue or
inaccurate, shall, in addition to the requirements of the Time Brokerage
Agreement, be remedied or caused to be remedied by Topaz to the reasonable
satisfaction of Regent prior to Closing.
(k) CLOSING ON RUBY APA. Subsidiary shall have consummated a
closing under the Ruby APA with Ruby Broadcasting, Inc., either on or before the
Closing Date.
CONDITIONS PRECEDENT TO TOPAZ'S
-------------------------------
OBLIGATION TO CLOSE
-------------------
25. CONDITIONS PRECEDENT TO TOPAZ'S OBLIGATIONS. If at the Closing Date
the following conditions are satisfied, Topaz and Xxxxxx shall be obligated to
surrender or cause to be surrendered the Topaz Stock to the extent set forth and
in accordance with the terms and conditions of this Agreement:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of Regent and Subsidiary contained herein or in
any list, certificate or document delivered pursuant to the provisions hereof
shall be true in all material respects as of the date of this Agreement and as
of and at the Closing Date as though made on such date except for changes
permitted by this Agreement. Regent and Subsidiary shall have performed and
complied with all obligations and covenants required by this Agreement to be
performed or complied with by Regent and Subsidiary on or prior to the Closing
Date. Regent and Subsidiary shall have delivered to Topaz a certificate dated
the Closing Date and signed by an officer of each entity attesting to the above.
(b) PURCHASE PRICE. All consideration as set forth under
paragraphs 12 and 13 of this Agreement which is due on the Closing Date shall
have been paid in accordance with the terms of this Agreement.
(c) DELIVERY OF CLOSING DOCUMENTS. Regent and Subsidiary shall
have delivered to Topaz the Closing Documents described hereafter in paragraph
27 of this Agreement.
(d) FINAL ORDER. The Commission's Order shall have become a
Final Order.
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(e) CONSENTS. On the Closing Date, each person, association,
corporation or other entity, the consent or approval of which to the issuance
and delivery of the Series E Preferred Stock, if applicable, and the merger of
Topaz into Subsidiary, as herein provided, is then required shall have duly
consented or approved such merger.
(f) ADVERSE PROCEEDINGS. As of the Closing Date, no suit,
action, claim or governmental proceeding or investigation shall be pending or
shall have been instituted, taken, presented or threatened against Regent or
Subsidiary which makes unlawful the carrying out of this Agreement, or causes it
to be rescinded.
(g) ISSUANCE OF SERIES E PREFERRED STOCK. The issuance of the
Series E Preferred Stock pursuant to the terms of this Agreement shall be
legally permitted by all applicable laws and regulations.
(h) TITLE AND ENVIRONMENTAL EXAMINATION. Topaz shall have
conducted and/or obtained a satisfactory review and examination of the title to
and condition of the properties owned by Regent (including such environmental
assessments of said properties as may be currently in existence or as Topaz may
elect to have conducted at its expense) to be completed within sixty (60) days
after the execution of this Agreement.
(i) CLOSING ON RUBY APA. A closing shall have been consummated
under the Ruby APA between Subsidiary and Ruby Broadcasting, Inc., on or before
the Date of Closing.
CLOSING DOCUMENTS
-----------------
26. CLOSING DOCUMENTS TO BE DELIVERED BY TOPAZ. On the Closing Date,
Topaz shall deliver to Regent and Subsidiary:
(a) A certificate signed by the President of Topaz to the
effect set forth in paragraph 24(a) hereof [certificate of Topaz's compliance
with all its warranties and representations].
(b) Such other assignments, documents and instruments as
counsel for Regent and Subsidiary may reasonably require.
(c) An opinion of Xxxxxxxxx, Xxxxxx & Xxxxxx, PLLC as legal
counsel for Topaz and Xxxxxx, in form satisfactory to counsel for Regent and
Subsidiary, dated the Closing Date, to the effect that:
(i) Topaz is a corporation duly organized and in good
standing under the laws of the State of Delaware, with full corporate power to
execute, deliver, and perform this Agreement; Topaz is in good standing as a
foreign corporation in California; and Topaz has all requisite corporate power
and authority to own its properties and carry on its business as conducted on
the date of Closing;
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(ii) The execution of this Agreement by Topaz and the
performance by it of the various terms and provisions hereof have been duly
authorized by proper corporate action and its obligations hereunder are valid,
binding, and enforceable against Topaz in accordance with the terms hereof,
subject to bankruptcy laws, other federal and state laws affecting creditor's
rights generally and the availability of equitable remedies;
(iii) Neither the execution and delivery of this
Agreement nor the performance hereof will constitute or result in the breach of
any term, condition or provision of, or constitute a default under, the
Certificate of Incorporation or By-laws of Topaz or, to the knowledge of
counsel, under any material agreement or other material instrument to which
Topaz is a party or by which Topaz or any part of the Broadcast Assets will be
bound after the Closing, or to the knowledge of counsel, under any law,
regulation, judgment or order binding upon Topaz or Xxxxxx;
(iv) To the Best Knowledge of such counsel, there are
no actions, suits, investigations, or proceedings pending against or affecting
Topaz, at law or in equity, or before or by any federal, state, local or other
governmental department, commission, board, bureau, agency or instrumentality,
the eventual outcome of which could, individually or in the aggregate, have a
material adverse effect on the Broadcast Assets or the Station; and to the Best
Knowledge of such counsel, Topaz is not subject to any currently existing order,
writ, injunction or decree relating to the operation of the Station;
(v) To counsel's knowledge, all approvals of
applications to the Commission and all other approvals the granting of which is
necessary for the consummation of the transactions contemplated hereby, have
been obtained and have become final in accordance with applicable law;
(vi) Such counsel is not aware of any claim that any
of the material leases, contracts and agreements under which Topaz is obligated
are not valid, enforceable and in full force and effect; and
(vii) Topaz has authorized and outstanding capital
stock as set forth in paragraph 20(d); all shares of Topaz's outstanding capital
stock have been duly and validly authorized and issued and are fully paid and
nonassessable and have been issued in compliance with all applicable federal and
state securities laws; and to counsel's knowledge there are no outstanding
rights, warrants, options, subscriptions, agreements or commitments giving
anyone any rights to require Topaz to sell, issue or reissue any capital stock
or other securities, other than as set forth in Schedule 20(g).
In rendering such opinion, such counsel may rely upon opinions or
provide opinions of other counsel satisfactory to Regent and Subsidiary, copies
of which opinions upon which there is reliance shall be delivered to Regent and
Subsidiary, and such counsel may rely as to factual matters upon certificates of
one or more officers of Topaz and of public officials.
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The foregoing opinions may be qualified to the extent that (i) the
enforceability of any provisions of the Agreement, any documents executed
pursuant to the Agreement or any other documents referred to in this opinion, or
any rights granted pursuant to any such documents, shall be subject to and may
be affected by limitations, restrictions and/or other matters imposed under
state and/or federal bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors or debtors generally, (ii) the
enforceability thereof may be limited by the application of general principles
of equity, (iii) any right to indemnity may be limited by principles of public
policy, and (iv) any provisions requiring payment of attorneys' fees may not be
enforceable.
(d) Certificates, duly endorsed, from Stockholder, evidencing
all of the outstanding shares of Topaz Stock.
(e) Certified copies of resolutions of Topaz's Board of
Directors and its Stockholder authorizing the execution, delivery and
performance of this Agreement and all instruments referred to herein to which
Topaz or the Stockholder are a party.
(f) All necessary consents to be obtained by Topaz as set
forth under paragraph 24(d).
27. CLOSING DOCUMENTS TO BE DELIVERED BY REGENT AND SUBSIDIARY. On the
Closing Date, Regent and Subsidiary shall deliver:
(a) The consideration to be paid for the Topaz Stock, as may
be adjusted pursuant to paragraph 13(b).
(b) An opinion of Xxxxxxx & Xxxx, counsel for Regent and
Subsidiary, in form satisfactory to counsel for Topaz and dated the Closing Date
to the effect that:
(i) Each of Regent and its subsidiaries is a
corporation duly organized and in good standing under the laws of its state of
incorporation; and is in good standing under the laws of any other states where
its offices, equipment, facilities and other tangible assets are located (except
to the extent Subsidiary may be deemed to have offices in Kentucky);
(ii) Regent and Subsidiary have full corporate power
to execute, deliver, and perform this Agreement, and Regent, Subsidiary and the
other wholly-owned subsidiaries of Regent have all requisite corporate power and
authority to own their properties and carry on their business as conducted on
the Closing Date;
(iii) The execution of this Agreement by Regent and
Subsidiary and the performance by Regent and Subsidiary of the various terms and
provisions hereof have been duly authorized by proper corporate action, and
Regent and Subsidiary have the authority and power to complete the transactions
provided for herein;
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(iv) This Agreement has been duly executed by Regent
and Subsidiary and the obligations hereunder are valid, binding and enforceable
against Regent and Subsidiary in accordance with the terms hereof subject to
bankruptcy laws, other federal and state laws affecting creditors' rights
generally and the availability of equitable remedies;
(v) Neither the execution and delivery of this
Agreement nor the performance hereof will constitute or result in the breach of
any term, condition or provision of, or constitute a default under, the
Certificate of Incorporation, as amended, or By-Laws, of Regent or Subsidiary
or, to the knowledge of counsel, under any material agreement or other
instrument to which Regent or Subsidiary is a party or by which Regent is bound,
or to the knowledge of counsel, under any law, regulation, judgment or order
binding upon Regent or Subsidiary;
(vi) The Series E Preferred Stock is duly and validly
authorized, and when issued to the Stockholder pursuant to the terms of this
Agreement, will be validly issued, fully paid, and non-assessable;
(vii) To the Best Knowledge of such counsel, there
are no actions, suits, investigations, or proceedings pending against or
affecting Regent, at law or in equity, or before or by any federal, state, local
or other governmental department, commission, board, bureau, agency or
instrumentality, the eventual outcome of which could, individually or in the
aggregate, have a material adverse effect on Regent's Stations; and to the Best
Knowledge of such counsel, neither Regent nor Subsidiary is subject to any
currently existing order, writ, injunction or decree relating to the operation
of any of Regent's Stations;
(viii) To the Best Knowledge of such counsel, all
approvals of applications to the Commission and all other approvals the granting
of which is necessary for the consummation of the transactions contemplated
hereby, have been obtained and have become final; and
(ix) Regent has authorized and outstanding capital
stock as set forth in paragraph 21(c); all shares of Regent's outstanding
capital stock have been duly and validly authorized and issued and are fully
paid and non-assessable and have been issued in compliance with all applicable
federal and state securities laws; and to counsel's knowledge there are no
outstanding rights, warrants, options, subscriptions, agreements or commitments
giving anyone any rights to require Regent to sell, issue or re-issue any
capital stock or other securities, other than as set forth in Schedule 21(c).
In rendering such opinion, such counsel may rely upon opinions or
provide opinions of other counsel satisfactory to Topaz, copies of which
opinions upon which there is reliance shall be delivered to Topaz, and such
counsel may rely as to factual matters upon certificates of representatives of
Regent and Subsidiary and of public officials.
The foregoing opinions may be qualified to the extent that (i) the
enforceability of any provisions of the Agreement, any documents executed
pursuant to the Agreement or any other documents referred to in this opinion, or
any rights granted pursuant to any such documents, shall be subject to and may
be affected by limitations, restrictions and/or other matters imposed under
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state and/or federal bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights of creditors or debtors generally, (ii) the
enforceability thereof may be limited by the application of general principles
of equity, (iii) any right to indemnity may be limited by principles of public
policy, and (iv) any provisions requiring payment of attorneys' fees may not be
enforceable.
Regent has retained separate special counsel to advise it with respect
to all laws administered by and matters pending before the Commission, all
rules, regulations and orders promulgated thereunder and all other laws,
regulations, rules, orders and other requirements, federal, state or local,
relating to the licenses. Consequently, the opinion of Xxxxxxx & Xxxx may be
qualified with respect to such laws, matters, regulations, rules, orders and
requirements, provided that an opinion of such special counsel to Regent which
addresses such items is furnished in a form satisfactory to Topaz's counsel.
(c) A certificate signed by the President of Regent and
Subsidiary to the effect set forth in paragraph 25(a) hereof [certificate of
Regent's compliance with all its warranties and representations].
(d) Certified copies of resolutions of the Boards of Directors
of Regent and Subsidiary authorizing the execution, delivery and performance of
this Agreement and all instruments referred to herein to which Regent or
Subsidiary is a party.
(e) A certified copy of a resolution of the Board of Directors
of Regent authorizing the issuance of the Series E Preferred Stock to be
transferred to Xxxxxx by Subsidiary.
(f) All necessary consents to the issuance of the Series E
Preferred Stock, the redemption and cancellation of the Topaz Stock, and the
merger of Topaz into Subsidiary to be obtained by Regent or Subsidiary.
28. ESCROW DEPOSIT. In accordance with the provisions in Section 42,
Regent shall deposit with Security Title & Guaranty, Inc., as Escrow Agent, an
irrevocable, stand-by letter of credit in the amount of Four Hundred Thousand
Dollars ($400,000) (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 Schedule A to the Ruby APA (the "Deposit Escrow
Agreement"), executed by the parties thereto contemporaneously with the
execution of this Agreement. The funds comprising this Escrow Deposit shall also
be considered to comprise the escrow deposit required under the Ruby APA. Any
funds disbursed from the Escrow Deposit as liquidated damages under this
Agreement shall be considered as satisfying an equal amount of liquidated
damages under the Ruby APA, in which event any further liquidated damages paid
pursuant to the Ruby APA shall be deemed to be equal to, and satisfied from, the
then remaining balance of the Escrow Deposit, if any.
29. REMEDIES ON DEFAULT-PRIOR TO CLOSING.
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As more fully described in the Deposit Escrow Agreement:
(a) In the event this Agreement is terminated solely because
of a material breach by Subsidiary or Regent prior to Closing of any term or
agreement contained in this Agreement or any warranty or representation
contained herein, the Escrow Deposit shall be delivered to Xxxxxx as his and
Topaz's sole remedy and as liquidated damages. The rights conferred in this
subparagraph may not be exercised unless either Xxxxxx or Topaz has given
Subsidiary or Regent, as the case may be, thirty (30) days' written notice (or
such lesser number of days as are remaining until December 1, 1998, of the
specific nature of the breach and Subsidiary or Regent has failed to correct it
within that period provided, however, that Buyer shall have no right to cure a
failure to pay the Purchase Price at the Closing or to consummate the Ruby APA.
(b) In the event of a material breach by Topaz prior to
Closing of any term or agreement contained in this Agreement or any warranty or
representation contained herein, or in the event the Time Brokerage Agreement is
terminated by Regent or its affiliate pursuant to paragraph 7 thereof, Regent
and Subsidiary may, at their option, terminate the Agreement, the Escrow Deposit
shall be delivered to Regent, and Regent and Subsidiary may recover liquidated
damages from Topaz and/or Xxxxxx and/or Ruby (under the Ruby APA), up to
$400,000.00 in the aggregate, or, without terminating this Agreement, demand and
obtain specific performance of this Agreement, which Topaz and Xxxxxx
acknowledge is an appropriate remedy because the actual damages recoverable at
law may be inadequate or there may not be any other adequate remedy at law. The
rights conferred by this subparagraph may not be exercised unless either
Subsidiary or Regent has given Topaz thirty (30) days' written notice (or such
lesser number of days as are remaining until December 1, 1998) of the specific
nature of the breach and Topaz has failed to correct it within that period.
(c) In the event this Agreement is terminated for any reason
other than a breach by Subsidiary or Regent, the Escrow Deposit shall be
returned to Regent.
(d) Notwithstanding the provisions of subparagraphs 29(a), (b)
and (c) above, neither party shall be entitled to damages or expenses from the
other in the event this Agreement fails to close solely due to the failure to
obtain in a timely manner the Final Order, provided that such failure is not
attributable, in whole or in part, to circumstances or events within the control
of a party hereto or to the failure of such party to use its best efforts to
obtain such Final Order.
30. BROKERAGE. The parties agree that other than Star Media, no broker
or finder was connected with or brought about this transaction and the parties
have not entered into any other brokerage agreements. Regent shall pay the fee
due to Star Media Group at Closing. Topaz and Xxxxxx agree to indemnify and save
Regent and Subsidiary harmless with respect to any other claimant for a broker's
fee for this transaction based on any agreement with Topaz or Xxxxxx, and Regent
and Subsidiary agree to indemnify and save Topaz and Xxxxxx harmless, with
respect to any other claimant for a broker's fee for this transaction.
31. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants and agreements herein contained shall be deemed and
construed to be continuing
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representations, warranties, covenants, and agreements which shall survive the
consummation of this transaction for one (1) year; and neither the acceptance of
delivery of the Regent Stock or any other consideration hereunder shall
constitute a waiver of any covenant, representation, or warranty herein
contained. Regent and Subsidiary, on the one hand, and Topaz, on the other,
shall remain liable to each other for any damage (subject to the limitations
contained in this Agreement) resulting from any breach, failure, non-performance
or non-fulfillment of any of their respective covenants, representations or
warranties herein notwithstanding that the injured party may elect to close this
transaction with such breach outstanding. No waiver or forbearance by either
party in any instance shall constitute or be deemed a waiver or forbearance in
any other instance. Any party hereto may waive the conditions to its performance
hereunder other than those pertaining to regulatory approval.
MISCELLANEOUS PROVISIONS
------------------------
32. TIME BROKERAGE AGREEMENT. Simultaneously with the execution hereof,
Topaz shall enter into with Regent or its affiliate a Time Brokerage Agreement,
in the form of Schedule 32 hereto (the "Time Brokerage Agreement"), pursuant to
which Topaz will make available to Regent and/or its affiliate the broadcasting
transmission facilities to the Station and/or cause to be broadcast on the
Station Regent's programming from the Commencement Date (as defined in the Time
Brokerage Agreement) during the term thereof. An Event of Default by any 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.
33. HEADINGS. The headings of paragraphs of this Agreement are for
convenience of reference only, and do not form a part hereof, and do not in any
way modify, interpret or construe the meanings of the parties.
34. EXECUTION. This Agreement may be executed in one or more
counterparts, all of which shall be construed one and the same Agreement, and
shall become effective when one counterpart has been signed by each party and
delivered to the others hereto.
35. 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 Topaz, by notifying Regent, and in the case of
Regent or Subsidiary, by notifying Topaz:
If to Regent or Subsidiary:
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Xxxxx X. Xxxxxx, Chairman
Regent Communications, Inc.
00 Xxxx XxxxxXxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
copy to:
XXXXXXX & XXXX
2100 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to Xxxxxx or Topaz:
Xxxxxx X. Xxxxxx, President
Topaz Broadcasting, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
copy to:
XXXXXXXXX, XXXXXX & XXXXXX, PLLC
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
ATTN: Xxxxxxxx X. Xxxxxx, Xx., Esq.
Fax: 202/000-0000
36. DISCLOSURE. The parties agree that the subject matter of this
Agreement is one of the utmost confidentiality and the release of information is
a matter of great importance to both parties. Both parties agree that no
disclosure of any aspect of this Agreement, no press release or other publicity
shall be released by either party without the consent of the other; provided,
however, any party may release any information that is required by state or
federal law, customarily transmitted to any potential or present Senior Lender,
or a matter of public record on file with the Commission.
37. RECEIPT OF SERIES E PREFERRED STOCK. Receipt of the shares of the
Series E Preferred Stock by Xxxxxx shall be deemed to be acceptance,
ratification and consent by Xxxxxx in all respects to the terms and provisions
of this Agreement.
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38. AMENDMENT OR TERMINATION. At any time prior to the filing of a
Certificate of Merger with the Secretary of State of Delaware, the Boards of
Directors of Subsidiary and Topaz, by mutual consent, may amend or terminate
this Agreement, notwithstanding favorable action on the merger by the
stockholder of either or both of Subsidiary and Topaz, provided that any such
amendment shall not affect the rights of the stockholder in a manner which is
materially adverse to such stockholder in the judgment of the Board of Directors
of Subsidiary or Topaz, as the case may be. At any time after the execution of
this Agreement pursuant to the favorable resolutions of their Boards of
Directors, neither Subsidiary or Topaz may terminate or modify this Agreement
without the consent of the other except in accordance with the terms hereof.
39. ENTIRE AGREEMENT. This Agreement, together with the Schedules and
Schedules hereto and the Time Brokerage Agreement, embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof. Any matter that is disclosed in a Schedule hereto in such a way as to
make its relevance to the information called for by another Schedule readily
apparent shall be deemed to have been included in such other Schedule,
notwithstanding the omission of an appropriate cross-reference.
40. GOVERNING LAW AND FORUM. The parties agree that any action brought
to enforce any provisions of this Agreement or to seek any remedy provided for
hereunder shall be brought in a California State court of competent jurisdiction
located in Los Angeles County, California. EACH OF THE PARTIES HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING ANY COUNTERCLAIM
MADE IN SUCH ACTION OR PROCEEDING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE DECIDED SOLELY BY A JUDGE IN THE COUNTY OF LOS ANGELES, CALIFORNIA.
Each of the parties hereto acknowledges that it has been represented by counsel
in the negotiation, execution and delivery of this Agreement and that its
lawyers have fully explained the meaning of the Agreement, including in
particular the jury-trial waiver. This Agreement shall be construed and governed
in accordance with the laws of the State of Delaware.
41. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns.
[THE BALANCE OF THIS PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
WITNESS: TOPAZ BROADCASTING, INC.
By:
---------------------- ---------------------------------------
Its:
-------------------------------------
WITNESS: REGENT BROADCASTING OF
VICTORVILLE, INC.
By:
---------------------- ---------------------------------------
Its:
-------------------------------------
WITNESS: REGENT COMMUNICATIONS, INC.
By:
---------------------- ---------------------------------------
Its:
-------------------------------------
I, ______________________, Secretary of Topaz Broadcasting, Inc., a corporation
organized and existing under the laws of the State of California ("Topaz")
hereby certify, as such Secretary, that the Agreement of Merger dated December ,
1997, between Topaz, Regent Broadcasting of Victorville, Inc. and Regent
Communications, Inc., to which this certificate is attached, was duly consented
to in writing by Xxxxxx X. Xxxxxx, the holder of all the outstanding stock of
Topaz, in accordance with Section 228 of Title 8 of the General Corporation Law
of the State of Delaware and thereby such Agreement of Merger was duly adopted
as the act of the stockholder of Topaz, and the duly adopted agreement of such
corporation.
WITNESS my hand on this _________ day of __________________, 1997.
--------------------------------
Secretary
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I, Xxxxxxx X. Xxxxxxxx, Secretary of REGENT BROADCASTING OF VICTORVILLE, INC., a
corporation organized and existing under the laws of the State of Delaware
("Subsidiary"), hereby certify, as such Secretary, that the Agreement of Merger
dated December , 1997, between Topaz Broadcasting, Inc., Subsidiary and Regent
Communications, Inc., to which this certificate is attached, was duly consented
to in writing by Regent Communications, Inc., the holder of all the outstanding
stock of Subsidiary, in accordance with Section 228 of Title 8 of the General
Corporation Law of the State of Delaware and thereby such Agreement of Merger
was duly adopted as the act of the stockholder of Subsidiary, and the duly
adopted agreement of such corporation.
WITNESS my hand on this _________ day of __________________, 1997.
--------------------------------
Secretary
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The above Agreement of Merger, having been approved by the Board of
Directors of each of Topaz Broadcasting, Inc. and Subsidiary and having been
adopted separately by the stockholder of Topaz Broadcasting, Inc. and
Subsidiary, in accordance with the provisions of the General Corporation Law of
the State of Delaware, and that fact having been certified on said Agreement of
Merger by the Secretary of each of Topaz Broadcasting, Inc. and Subsidiary, the
President of Topaz Broadcasting, Inc. and the Chairman of the Board of Regent
Communications, Inc. and Subsidiary, do now hereby execute the said Agreement of
Merger by authority of the directors and stockholders thereof, as the respective
act, deed and agreement of each of such corporation, on this _____ day of
_____________, 1997.
WITNESS: TOPAZ BROADCASTING, INC.
By:
----------------------- --------------------------------------------
Its:
-------------------------------------------
WITNESS: REGENT BROADCASTING OF
VICTORVILLE, INC.
By:
----------------------- --------------------------------------------
Its:
-------------------------------------------
WITNESS: REGENT COMMUNICATIONS, INC.
By:
----------------------- --------------------------------------------
Its:
-------------------------------------------
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