<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Regent Communications, Inc.
_________________________________________________________________
(Name of Issuer)
Series C Convertible Preferred Stock
_________________________________________________________________
Title of Class of Securities)
758865208
_________________________________________________________________
(CUSIP Number)
John H. Wyant
2000 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 723-2300
_________________________________________________________________
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 15, 1998
_________________________________________________________________
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule
13d-1(b)(3) or (4), check the following box [ ].
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 6 Pages
<PAGE>
CUSIP No. 758865208 13D 2 of 6 pages
_________________________________________________________________
1) Names of Reporting Persons S.S. or I.R.S. Identification
Nos. of Above Persons
Blue Chip Venture Company, Ltd.
31-1480937
_________________________________________________________________
2) Check the Appropriate Box if a Member of a Group (See
Instructions)
(a) [ ]
(b) [X]
_________________________________________________________________
3) SEC Use Only
_________________________________________________________________
4) Source of Funds (See Instructions)
WC
_________________________________________________________________
5) Check Box if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) [ ]
_________________________________________________________________
6) Citizenship or Place of Organization
Ohio
_______________________________________________________________
| | |
| NUMBER OF SHARES | 7) Sole Voting Power 2,003,197 |
| BENEFICIALLY OWNED |_________________________________________|
| BY EACH REPORTING | 8) Shared Voting Power -0- |
| PERSON WITH |_________________________________________|
| | 9) Sole Dispositive Power 2,003,197 |
| |_________________________________________|
| | 10) Shared Dispositive Power -0- |
|_______________________________________________________________|
11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,003,197
_________________________________________________________________
12) Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions) [ ]
_________________________________________________________________
13) Percent of Class Represented by Amount in Row (11)
53.8
_________________________________________________________________
14) Type of Reporting Person (See Instructions)
PN
- 2 -
<PAGE>
Item 1. Security and Issuer
___________________
This statement relates to the Series C Convertible
Preferred Stock ("Preferred Stock"), of Regent Communications,
Inc. (the "Issuer"). The name and address of the principal
executive offices of the Issuer are as follows:
Regent Communications, Inc.
50 East Rivercenter Boulevard, Suite 180
Covington, KY 41011
Item 2. Identity and Background
_______________________
The person filing this statement is Blue Chip Venture
Company Ltd., an Ohio limited liability company ("Blue Chip").
Blue Chip's business address is 2000 PNC Center, 201 East Fifth
Street, Cincinnati, Ohio 45202.
The members and managers of Blue Chip and their
principal occupations are set forth below.
Name Principal Occupation
____ ____________________
John H. Wyant Manager, Blue Chip and President
Blue Chip Venture Company
Z. David Patterson Manager, Blue Chip and Executive
Vice President, Blue Chip Venture Company
John C. McIlwraith Manager, Blue Chip
All of such persons are citizens of the United States. The
address of all such persons is c/o Blue Chip at the address set
forth above. During the last five years none of such persons has
been convicted in a criminal proceeding or has been a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which he was or is subject
to a judgment, decree or final order enjoining future violations
or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Blue Chip is the general partner of Blue Chip Capital
Fund II Limited Partnership ("Blue Chip II") and an affiliate of
a special limited partner and portfolio manager of Miami Valley
Venture Fund, L.P. ("Miami Valley"). In such capacity, Blue Chip
exercises sole voting and dispositive power over all Preferred
Stock held by both funds.
- 3 -
<PAGE>
Item 4. Purpose of Transaction.
______________________
The purpose of the acquisition of the Preferred Stock
is investment. Blue Chip may acquire additional shares of
Preferred Stock or dispose of shares if it deems such transaction
to be financially advantageous. Blue Chip also reserves the
right to change such intent if circumstances change. Except as
described below, Blue Chip currently has no plan or proposal
which relates to or would result in:
(a) The acquisition by any person of additional
securities of the Issuer, or the disposition of
securities of the Issuer;
(b) An extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving
the Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets
of the Issuer or any of its subsidiaries;
(d) Any change in the present board of directors or
management of the Issuer, including any plans or
proposals to change the number or term of
directors or to fill any existing vacancies on the
board;
(e) Any material change in the present capitalization
or dividend policy of the Issuer;
(f) Any other material change in the Issuer's business
or corporate structure;
(g) Changes in the Issuer's charter, bylaws or
instruments corresponding thereto or other actions
which may impede the acquisition of control of the
Issuer by any person;
(h) Causing a class of securities of the Issuer to be
delisted from a national securities exchange or to
cease to be authorized to be quoted in an inter-
dealer quotation system of a registered national
securities association;
(i) Causing a class of equity securities of the Issuer
becoming eligible for termination of registration
pursuant to Section 12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated
above.
The Articles of Incorporation of the Issuer provide for the
election of one director nominated by the holders of the
Preferred Stock. Currently such director is John H. Wyant.
- 4 -
<PAGE>
Transfer of the Preferred Stock is restricted pursuant to the
terms of a Second Amended and Restated Stockholder Agreement
among the principal shareholders of the Issuer, a copy of which
is filed herewith as Exhibit 1.
Item 5. Interest in Securities of the Issuer.
____________________________________
The following table sets forth information with respect
to the shares of Preferred Stock of which Blue Chip has or shares
beneficial ownership:
Percent of
Record Owner Number of Shares Outstanding
____________ ________________ ___________
Blue Chip II 1,702,718(1)(3) 45.8
Miami Valley 300,479(2)(3) 8.1
__________ ____
Total 2,003,197 53.8
(1) As general partner of Blue Chip II, Blue Chip has sole
voting power and dispositive power with respect to these
shares.
(2) An affiliate of Blue Chip is a special limited partner of
Miami Valley and has sole voting power and dispositive power
with respect to these shares.
(3) Each of such shares of Preferred Stock is currently
convertible into one share of Common Stock of Issuer. Such
shares represent approximately 27% of the Issuer's
outstanding voting stock.
The following table sets forth information with respect
to all transactions with respect to the Preferred Stock in which
Blue Chip has engaged in the last 60 days.
Date Shares Acquired Price Per Share
____ _______________ _______________
June 15, 1998 2,003,197 --
All of the Preferred Stock was acquired in exchange for shares of
common stock of Faircom, Inc. in connection with the merger which
was consummated on June 15, 1998. Such common stock of Faircom,
Inc. was acquired upon the conversion of $7,500,000 principal
amount of subordinated notes of Faircom, Inc.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of Issuer.
__________________________________________________
All of such Preferred Stock is subject to the terms of
the Second Amended and Restated Stockholder Agreement, a copy of
which is attached as Exhibit 1 hereto and which is incorporated
herein by reference.
- 5 -
<PAGE>
Item 7. Material to be Filed as Exhibits.
________________________________
1. Second Amended and Restated Stockholders' Agreement
of Regent Communications, Inc. dated as of June 15, 1998.
Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
BLUE CHIP VENTURE COMPANY LTD.
July 15, 1998 By: /s/ John H. Wyant
_____________ __________________________
Date John H. Wyant
Manager
- 6 -
<PAGE>
REGENT COMMUNICATIONS, INC.
___________________________
SECOND AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
THIS SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (this
"Agreement"), is made and entered into as of June 15, 1998 by and
among REGENT COMMUNICATIONS, INC., a Delaware corporation (the
"Company"), TERRY S. JACOBS ("Jacobs"), WILLIAM L. STAKELIN
("Stakelin"), PNC BANK, N.A., a national banking association, as
trustee ("PNC"), WALLER-SUTTON MEDIA PARTNERS, L.P., a Delaware
limited partnership ("Waller-Sutton"), WILLIAM H. INGRAM
("Ingram"), WPG CORPORATE DEVELOPMENT ASSOCIATES V, L.P., a
Delaware limited partnership, and WPG CORPORATE DEVELOPMENT
ASSOCIATES V (OVERSEAS), L.P., a Delaware limited partnership
(collectively, "WP&G"), RIVER CITIES CAPITAL FUND LIMITED
PARTNERSHIP, a Delaware limited partnership ("River Cities"), BMO
FINANCIAL, INC., a Delaware corporation ("BMO"), GENERAL ELECTRIC
CAPITAL CORPORATION, a New York corporation ("GE Capital"), JOEL M.
FAIRMAN ("Fairman"), MIAMI VALLEY VENTURE FUND L.P., an Ohio
limited partnership ("Miami Valley"), and BLUE CHIP CAPITAL FUND II
LIMITED PARTNERSHIP, an Ohio limited partnership ("Blue Chip").
W I T N E S S E T H:
WHEREAS, Jacobs, Stakelin, River Cities, BMO and GE Capital,
the holders of all of the Company's capital stock which is issued
and outstanding immediately prior to the consummation of the
transactions described below, are parties to a First Amended and
Restated Stockholders' Agreement among them, dated as of December
8, 1997 (the "Existing Stockholders' Agreement");
WHEREAS, pursuant to the consummation, on the date hereof (the
"Closing Date"), of the merger (the "Merger") of Faircom Inc.
("Faircom") and Regent Merger Corp. ("RMC") pursuant to that
certain Agreement of Merger, dated as of December 5, 1997, among
Faircom, RMC and the Company, as amended, the outstanding shares of
common stock of Faircom have been converted into the right to
receive shares of Series C Preferred Stock;
WHEREAS, as holders of record of Faircom common stock on the
Closing Date, Fairman, Miami Valley, Blue Chip and Waller-Sutton
are to receive shares of Series C Preferred Stock as a result of
the Merger;
WHEREAS, on the Closing Date, Waller-Sutton, Ingram, WP&G, GE
Capital and River Cities (collectively, the "Series F Purchasers")
are to purchase certain shares of Series F Preferred Stock pursuant
to the terms of a Stock Purchase Agreement, dated as of June 15,
1998, by and among the Company and the Series F Purchasers (the
"Series F Preferred Stock Purchase Agreement");
WHEREAS, pursuant to the terms of the Series F Preferred Stock
Purchase Agreement, the Series F Purchasers are obligated to
<PAGE>
purchase, from time to time after the Closing Date, certain
additional shares of Series F Preferred Stock, subject to the terms
and provisions thereof,
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of
December 8, 1997, BMO has heretofore purchased 220,000 shares of
Series D Preferred Stock and on the Closing Date, BMO shall
purchase an additional 780,000 shares of Series D Preferred Stock;
WHEREAS, on or prior to the Closing Date, GE Capital shall pay
all amounts due to the Company in connection with the purchase by
it of 1,000,000 shares of Series B Preferred Stock pursuant to a
Stock Purchase Agreement dated as of December 8, 1997 (the "Series
B Preferred Stock Purchase Agreement");
WHEREAS, in connection with the foregoing transactions and
certain matters related thereto on the Closing Date, the Company is
to issue certain warrants to the Series F Purchasers and is to
issue certain stock options to Jacobs and Stakelin; and
WHEREAS, the Company and the Stockholders deem it desirable to
enter into this Agreement in order to amend and restate in its
entirety the Existing Stockholders' Agreement, to add certain
additional parties thereto and to set forth certain agreements
among themselves granting certain rights and imposing certain
restrictions on themselves, the Company and the shares of capital
stock in the Company now or at any time held by the Stockholders or
issuable to the Stockholders upon the exercise of any options or
warrants now or at any time held by the Stockholders (collectively,
the "Shares").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree that the Existing
Stockholders' Agreement is hereby amended and restated in its
entirety as follows:
1. Definitions. As used in this Agreement:
___________
"Additional Put Notice" as defined in Section 7(b).
"Additional Put Stockholder" as defined in Section 7(b).
"Affiliate" as applied to any Person means any other Person
directly or indirectly controlling, controlled by, or under common
control with, that Person. The term "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and
"under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to vote 10% or
more of the Voting Stock (or in the case of a Person which is not
a corporation, 10% or more of the ownership interest, beneficial or
otherwise) of such Person or otherwise to direct or cause the
direction of the management and policies of that Person, whether
through the ownership of Voting Stock or other ownership interest,
by contract or otherwise.
- 2 -
<PAGE>
"Agreed Value" means such amount as shall be agreed to by the
Required Stockholders and the Company as the total fair market
value of the Company, valued as a going-concern; provided, however,
that such agreement by the Company to the amount determined as
Agreed Value must be approved by a majority of the directors of the
Company who are not nominated by Waller-Sutton or any Additional
Put Stockholder.
"Amended and Restated Charter" shall mean the amended and
restated certificate of incorporation of the Company, as in effect
on the date hereof or as hereinafter further amended in accordance
with the provisions hereof and thereof.
"Beneficially Own" or "Beneficial Ownership" shall, as to any
Person, be determined or computed in the manner provided under Rule
1 3d-3 promulgated under the Securities Exchange Act of 1934, as
amended, but on a fully-diluted and as converted basis
"Change of Control" means the appointment of any person other
than Jacobs or Stakelin as President, Chief Executive Officer or
Chief Operating Officer of the Company or the acquisition by any
Person or related group of Persons of direct or indirect beneficial
ownership of more than 35% of the outstanding Voting Stock.
"Closing Date" means the date hereof.
"Common Stock" means the common stock of the Company, $.01 par
value.
"Common Stock Value" as defined in Section 7(d)(i)(3) below.
"Eligible Put Shares" means any Shares other than (i) Series
C Preferred Stock, (ii) Common Stock (other than (1) Common Stock
issued to Waller-Sutton upon conversion of Series C Preferred
Stock, (2) Common Stock issued on exercise of the GE Warrant or (3)
Common Stock issued on exercise of the Series F Warrants, which
exercise occurs after the date the Triggering Put Notice is given
and provided that the Warrants so exercised were included among the
Put Shares), (iii) warrants or options other than the Series F
Warrants, (iv) the Company's 7% Series E Convertible Preferred
Stock, $.01 par value, and (v) any series of preferred stock first
created by the Board of Directors after the date hereof.
"Exempt Transfer" as defined in Section 8 below.
"Existing Loan Agreement" shall mean the Credit Agreement,
dated as of November 14, 1997, among the Company, the lenders
listed therein, GE Capital as Documentation Agent, and Bank of
Montreal, Chicago Branch, as Agent, as amended by a First Amendment
thereto dated February 16, 1998 and a Second Amendment dated June
11, 1998, as in effect on the date hereof.
"Fairman Employment Period" means the "Employment Period," as
defined in that certain employment agreement, dated as of the
Closing Date, between the Company and Joel M. Fairman, as
- 3 -
<PAGE>
originally executed or thereafter amended with the consent of
Waller-Sutton (the "Fairman Agreement").
"Indebtedness" of any Person shall mean the principal of,
premium, if any, and unpaid interest on: (a) indebtedness for money
borrowed from others; (b) indebtedness guaranteed, directly or
indirectly, in any manner by such Person, or in effect guaranteed,
directly or indirectly, in any manner by such Person through an
agreement, contingent or otherwise, to supply funds to, or in any
other manner invest in, the debtor, or to purchase indebtedness, or
to purchase and pay for property if not delivered or pay for
services if not performed, primarily for the purpose of enabling
the debtor to make payment of the indebtedness or to assure the
owners of the indebtedness against loss; (c) all indebtedness
secured by any mortgage, lien, pledge, charge or other encumbrance
upon property owned by such Person, even though such Person has not
in any manner become liable for the payment of such indebtedness;
(d) all indebtedness of such Person created or arising under any
conditional sale, lease (intended primarily as a financing device)
or other title retention or security agreement with respect to
property acquired by such Person even though the rights and
remedies of the seller, lessor or lender under such agreement or
lease in the event of default may be limited to repossession or
sale of such property; and (e) renewals, extensions and refundings
of any such indebtedness.
"Immediate Family" means, as to any individual, (i) such
individual's spouse, children, parents or siblings, and (ii) the
respective executors, administrators, conservators, guardians or
custodians during the minority of such persons.
"Jacobs Employment Period" means the "Employment Period," as
defined in that certain Executive Employment Agreement, effective
as of March 1, 1998, between the Company and Jacobs as in effect on
the Closing Date or thereafter amended with the consent of Waller-
Sutton.
"Management Stockholder" means either or both of Jacobs and
Stakelin and any Transferee of either of them, other than pursuant
to an Exempt Transfer of the type referred to in clauses (iii) and
(iv) of the definition thereof.
"Maximum Number" means, in the case of each of Jacobs and
Stakelin, the lesser of (i) 733,333 (subject to adjustment in the
case of stock splits, stock dividends, reverse stock splits and the
like occurring from and after the Closing Date) and (ii) a number
of shares of Common Stock equal to 5.5% of the sum of(x) the number
of shares of Common Stock then outstanding and (y) the number of
shares of Common Stock issuable upon the conversion of all
outstanding shares of capital stock of the Company convertible into
Common Stock or issuable upon the exercise of all outstanding
options or warrants to acquire Common Stock or preferred stock
convertible into Common Stock.
"Permitted Indebtedness" means (i) Indebtedness incurred by
the Company under the Existing Loan Agreement in accordance with
- 4 -
<PAGE>
(and without giving effect to any material waiver or modification
of), the terms thereof, and (ii) Indebtedness to the extent
permitted under the Existing Loan Agreement (without giving effect
to any material waiver or modification thereof).
"Permitted Issuances" means any of the following: (i) the
issuance of additional shares of Series F Preferred Stock pursuant
to the Series F Preferred Stock Purchase Agreement; (ii) the
issuance of shares of Common Stock on the conversion of any shares
of preferred Stock or any other shares of convertible securities of
the Company which are outstanding as of the date hereof or the
issuance of which is approved by Waller-Sutton; (iii) the issuance
of shares of Common Stock or Preferred Stock upon the exercise of
currently outstanding options or warrants to purchase Common Stock
or Preferred Stock, or upon the exercise of options or warrants
which are issued after the date hereof with the approval of Waller-
Sutton; and (iv) the grant and/or exercise of options under the
Company's 1998 Management Stock Option Plan (provided that the
number of shares of Common Stock issued or issuable to either
Stakelin or Jacobs in respect of all options granted under the
Company's 1998 Management Stock Option Plan shall not exceed the
Maximum Number).
"Person" means a natural person, a partnership, a corporation,
an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Preferred Stock" means any or all of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series
D Preferred Stock or Series F Preferred Stock.
"Put Closing" as defined in Section 7(a).
"Put Shares" as defined in Section 7(c).
"Qualified Financing" as defined in Section 7(g)(ii) below.
"Qualified Public Offering" means an underwritten public
offering of Common Stock of the Company (i) at not less than $12
per share of Common Stock (equitably adjusted for any stock splits,
reverse stock splits or stock dividends occurring after the date
hereof), and (ii) generating not less than $25,000,000 of gross
proceeds payable to the Company (excluding the effect of any over-
allotment option).
"Redemption and Warrant Agreement" means that certain Amended
and Restated Redemption and Warrant Agreement, dated as of March
31, 1998, among the Company, Blue Chip, Miami Valley and Faircom.
"Required Stockholders" means Waller-Sutton and such other
Stockholders as shall (together with Waller-Sutton) Beneficially
Own more than 50% of the Put Shares (other than Put Shares
Beneficially Owned by the Management Stockholders).
- 5 -
<PAGE>
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Series A Director" means the one director entitled to be
nominated to serve by the holders of Series A Preferred Stock,
voting separately as a class, pursuant to the provisions of Article
FOURTH, Paragraph D, Section 11, of the Amended and Restated
Charter.
"Series A Preferred Stock" means the Company's 7% Series A
Convertible Preferred Stock, $.01 par value, together with all
shares of Common Stock issued upon conversion of such shares.
"Series B Preferred Stock" means the Company's 7% Series B
Senior Convertible Preferred Stock, $.01 par value, together with
all shares of Common Stock issued upon conversion of such shares.
"Series B Preferred Stock Purchase Agreement" as defined in
the recitals hereto.
"Series C Director" means the one director entitled to be
nominated to serve by the holders of Series C Preferred Stock,
voting separately as a class, pursuant to the provisions of Article
FOURTH, Paragraph F, Section 11, of the Amended and Restated
Charter.
"Series C Preferred Stock" means the Company's 7% Series C
Convertible Preferred Stock, $.01 par value, together with all
shares of Common Stock issued upon conversion of such shares.
"Series D Preferred Stock" means the Company's 7% Series D
Convertible Preferred Stock, $.01 par value, together with all
shares of Common Stock issued upon conversion of such shares.
"Series F Directors" means the two directors entitled to be
nominated to serve by the holders of Series F Preferred Stock,
voting separately as a class, pursuant to the provisions of Article
FOURTH, Paragraph I, Section 11, of the Amended and Restated
Charter.
"Series F Preferred Stock" means the Company's 10% Series F
Convertible Preferred Stock, $.01 par value, together with all
shares of Common Stock issued upon conversion of such shares.
"Series F Preferred Stock Purchase Agreement" as defined in
the recitals hereto.
"Shares" as defined in the recitals hereto; provided, however,
that as to any particular securities of the Company, such shall
cease to be "Shares" hereunder, when (i) a registration statement
with respect to the sale of such securities shall have become
effective under the Securities Act, and such securities shall have
been disposed of under such registration statement, (ii) they shall
have been distributed to the public pursuant to Rule 144 under the
Securities Act in accordance with the terms hereof or (iii) they
shall have ceased to be outstanding.
- 6 -
<PAGE>
"Stakelin Employment Period" means the "Employment Period," as
defined in that certain Executive Employment Agreement, effective
as of March 1, 1998, between the Company and Stakelin, as in effect
on the Closing Date or thereafter amended with the consent of
Waller-Sutton.
"Stockholder" means any Person who is a party to this
Agreement or is a successor or assign thereof contemplated by
Section 13 below.
"Triggering Put Notice" as defined in Section 7(a).
"Voting Stock" of any Person means securities of any class or
classes of such Person the holders of which are ordinarily, in the
absence of contingencies, entitled to elect or vote for the
election of the directors of such Person.
"Warrants" means (i) the warrants to purchase 860,000 shares
of Common Stock (subject to adjustment as provided therein) issued
to the Series F Purchasers pursuant to the terms of the Series F
Stock Purchase Agreement (the "Series F Warrants"), and (ii) the
warrant to purchase 50,000 shares of Common Stock (subject to
adjustment as provided therein) issued to GE Capital pursuant an
Agreement to Issue Warrant, dated the date hereof, between the
Company and GE Capital (the "GE Warrant").
2. Board of Directors.
__________________
(a) From and after the date of this Agreement and until
the provisions of this Section 2 cease to be effective, each
Stockholder shall vote or cause to be voted all Voting Stock and
any other voting securities of the Company over which such
Stockholder has Beneficial Ownership or voting control and shall
take all other necessary or desirable actions within its control
(whether in its capacity as a stockholder, director, member of a
committee of the Board of Directors or officer of the Company or
otherwise, and including, without limitation, attendance at
meetings in person or by proxy for purposes of obtaining a quorum
and execution of written consents in lieu of meetings), and the
Company shall take all necessary and desirable actions within its
control (including, without limitation, calling special board and
stockholder meetings), so that:
(i) the number of directors constituting the entire
Board of Directors of the Company (the "Board") shall be the number
of persons entitled to be designated to serve on the Board in
accordance with the provisions of Section 2(a)(ii) below (subject
to increase as provided in Section 7(1) below);
(ii) the following persons shall at all times
constitute the members of the Board and shall be elected to the
Board at each annual meeting of the Stockholders of the Company:
(1) Jacobs, during the Jacobs Employment
Period;
- 7 -
<PAGE>
(2) Stakelin, during the Stakelin Employment
Period;
(3) Fairman, during the Fairman Employment
Period and for up to two years thereafter if his nomination as a
director shall be approved by the Board of Directors;
(4) two persons designated by Waller-Sutton,
who initially shall be William H. Ingram and Richard Patterson (and
who shall constitute the Series F Directors);
(5) one person designated by River Cities, who
shall initially be R. Glen Mayfield (and who shall constitute the
Series A Director); and
(6) one person designated by Blue Chip, who
shall initially be John H. Wyant (and who shall constitute the
Series C Director); and
(7) such additional persons who Waller-Sutton
shall have the right to designate pursuant to Section 7(1) below;
(iii) the removal from the Board (with or without
cause) of any representative designated hereunder by any person or
group of persons at any time while such person or group shall be
entitled to serve on, or designate a representative to serve on,
the Board under clause (ii) above, shall only be at such person's
or group's written request (and at times when the person or
representative is not entitled to so serve on the Board, such
person or representative may be removed, with or without cause, by
vote of the Board or the Stockholders, or if requested by Waller-
Sutton, shall resign immediately); and
(iv) if any representative designated hereunder by
any person or group for any reason ceases to serve as a member of
the Board during his term of office at any time while such person
or group shall be entitled to serve on, or designate a
representative to serve on, the Board under clause (ii) above, the
resulting vacancy on the Board shall be filled by a representative
designated by such person or group, as provided hereunder.
(b) The Company shall pay the reasonable out-of-pocket
expenses incurred by each director in connection with his duties as
a director, including, without limitation, attending the meetings
of the Board and any committee thereof.
(c) Each of GE Capital, BMO and WP&G shall have the
right, so long as it Beneficially Owns at least 50% of the Shares
owned by it as of the date hereof (computed on an "as converted
basis" and including, in the case of each of WP&G and GE Capital,
Shares which it may be obligated to purchase under the Series F
Preferred Stock Purchase Agreement and Shares issuable upon the
exercise of outstanding warrants) to have a non-voting observer
present at each meeting of the Board. The Company shall pay the
reasonable out-of-pocket expenses incurred by each nonvoting
- 8 -<PAGE>
observer in connection with his or her attendance at Board
meetings.
(d) If any party fails to designate a representative to
fill a directorship or if any directorship remains unfilled
following the designation of persons pursuant to the terms of this
Section 2, or if a party is no longer entitled or available to
serve as a director as provided in this Section 2, the number of
directors constituting the entire Board shall be reduced
accordingly.
3. Conflicting Agreements. Each Stockholder represents that
______________________
he has not granted and is not a party to any proxy, voting trust or
other agreement which is inconsistent with or conflicts with the
provisions of this Agreement, and no Stockholder shall grant any
proxy or become party to any voting trust or other agreement which
is inconsistent with or conflicts with the provisions of this
Agreement. No Stockholder shall act, for any reason, as a member
of a group or in concert or enter into any agreement or arrangement
with any other person in connection with the acquisition,
disposition or voting of Shares in any manner which is inconsistent
with the provisions of this Agreement. Without limitation, GE
Capital hereby agrees that, so long as the Merger shall have
occurred, the provisions of Section 11(f) of the Series B Preferred
Stock Purchase Agreement relating to certain redemption obligations
of the Company are null and void and of no further force or effect
and Blue Chip and Miami Valley agree that the provisions of
paragraphs 3 through 6 of the Redemption and Warrant Agreement are
null and void and of no further force or effect, and no warrants
have been issued or are issuable by the Company thereunder. In
addition, the Company and each Stockholder shall, from time to
time, grant such waivers and execute such consents, proxies or
other instruments, and make such filings with and seek such
consents and approvals from governmental authorities or other
Persons, as may be necessary to give effect to or carry out the
provisions of this Agreement.
4. Certificate of Incorporation and Bylaws. The certificate
_______________________________________
of incorporation and bylaws of the Company may be amended in any
manner permitted thereunder, except that neither the certificate
nor the bylaws shall be amended in any manner that would conflict
with, or be inconsistent with, the provisions of this Agreement.
5. Actions Consistent with Agreement. The Company shall not
_________________________________
circumvent this Agreement by taking any action through a subsidiary
or affiliate that would be prohibited under this Agreement.
6. Waller-Sutton Approval Rights. The Company and each
_____________________________
Stockholder hereby covenants and agrees that, for so long as the
Series F Purchasers, together with: (i) any Person that is a direct
or indirect partner of any Series F Purchaser that is a
- 9 -
<PAGE>
partnership, (ii) any Person that is a direct or indirect member of
any Series F Purchaser that is a limited liability company, and
(iii) any Affiliate of any thereof (the Persons referred to in
clauses (i), (ii) and (iii) above shall hereinafter be called
"Waller-Sutton Permitted Transferees"), collectively Beneficially
Own, 10% or more of the Voting Stock, the Company shall not take or
permit to occur, and the Stockholders shall not consent to,
authorize or vote for, any of the following events or actions,
unless such has been approved in advance, in writing, by Waller-
Sutton:
(a) any merger or consolidation of the Company with any
other entity, and any merger or consolidation of any subsidiary of
the Company with any other entity other than the Company or another
wholly-owned subsidiary of the Company;
(b) the purchase or lease by the Company or any
subsidiary thereof of any business or assets, other than the
purchase or lease of assets in the ordinary course of business (it
being understood, however, that the purchase or lease of any radio
broadcasting station or Federal Communications Commission ("FCC")
license is not a purchase or lease in the ordinary course), or the
execution of any agreement providing for the purchase, lease,
construction or management of or in respect of radio broadcasting
stations (including time brokerage agreements and local marketing
agreements and the like);
(c) the sale of any assets of the Company or any
subsidiary thereof, or the execution of any agreement in respect
thereof (other than the sale of advertising time and excess or
obsolete furniture, fixtures or equipment in the ordinary course of
business);
(d) the issuance or sale of any equity or debt
securities of the Company or any subsidiary thereof or any rights
to acquire any of such equity or debt securities (including options
and warrants) or the issuance or sale of stock appreciation or
other "phantom" stock rights, other than Permitted Issuances, or
the execution of any agreements in respect thereof;
(e) the incurrence or assumption of any Indebtedness by
the Company or any Subsidiary thereof, other than Permitted
Indebtedness;
(f) any Change of Control;
(g) any amendment to the Company's 1998 Management Stock
Option Plan or the adoption of any other stock option, stock
purchase or restricted stock or stock appreciation right plan;
(h) any amendment to the Amended and Restated Charter or
to the by-laws of the Company;
(i) the execution by the Company or any Stockholder of
any voting, voting trust, registration rights or stockholders
- 10 -
<PAGE>
agreements with respect to the Company or any of its shares of
capital stock (other than this Agreement and the Registration
Rights Agreement); and
(j) the execution by the Company of any contract or
agreement for the construction or management of radio stations.
Subject to compliance by the Company and the other
Stockholders with the provisions of the final two sentences of this
paragraph, Waller-Sutton agrees that, upon receipt by the Company
of an opinion of counsel reasonably acceptable to Waller-Sutton,
that the exercise of one or more of its rights under this Section
6 is reasonably likely to constitute a transfer of control by the
Company within the meaning of the Communications Act of 1934, as
amended (the "Communications Act") or the rules and regulations of
the FCC thereunder (a "Transfer Opinion"), Waller-Sutton shall
forbear from exercising such rights until such time as the FCC has
(a) agreed that such exercise would not constitute a transfer of
control or (b) given its consent to such transfer of control
(either event hereinafter referred to as "FCC Approval"). In the
event that the Company receives a Transfer Opinion, the Company and
the other Stockholders shall promptly take such actions, or cause
such actions to be taken, that may be necessary or desirable to
obtain FCC Approval, including, without limitation, the execution
and delivery of all applications, certificates, instruments and
other documents that may be requested by the FCC or Waller-Sutton
in connection with obtaining FCC Approval, and the filing of
petitions for rehearing, reconsideration and/or judicial review,
all at the cost and expense of the Company. The Company and the
other Stockholders each hereby further agrees that, at all times
during the period in which Waller-Sutton is required to forbear
from exercising its rights under this Section 6, each will take all
actions necessary to prevent the occurrence of any of the events
set forth in subsections 6(a) through 6(1) above.
7. Put Rights.
__________
(a) At any time after the fifth anniversary of the date
hereof, Waller-Sutton shall have the right to send a written notice
to the Company (the "Triggering Put Notice"), advising the Company
that Waller-Sutton and the Affiliates of Waller-Sutton named in
such Triggering Put Notice require the Company to purchase all of
the Eligible Put Shares Beneficially Owned by such parties pursuant
to the provisions of this Section 7. The Triggering Put Notice
shall special the place and date for the closing (the "Put
Closing") of the purchase of Shares by the Company, which shall be
no less than 90 days after the date of the Triggering Put Notice.
(b) The Company shall send a copy of the Triggering Put
Notice to each of the other Stockholders within 5 days of the
receipt thereof by the Company, and each such Stockholder shall
have a period of twenty (20) days from the date of the Triggering
Put Notice to send a written notice to the Company (each, an
"Additional Put Notice") advising the Company that such Stockholder
(each Stockholder delivering an Additional Put Notice, an
- 11 -
<PAGE>
"Additional Put Stockholder") desires the Company to purchase all
of the Eligible Put Shares Beneficially Owned by such Stockholder,
such purchases to occur at the Put Closing.
(c) The Triggering Put Notice and each Additional Put
Notice shall specify the exact number and class of Eligible Put
Shares which the Stockholder transmitting the same shall desire the
Company to purchase, (which shall constitute all of the Eligible
Put Shares Beneficially Owned by such Stockholders), including all
Warrants held by the Stockholder (the Eligible Put Shares to be so
purchased by the Company are hereinafter referred to as the "Put
Shares").
(d) (i) If an Agreed Value has been determined and the
Put Closing does not occur in connection with or following the sale
of all or substantially all of the assets of the Company, the
purchase price to be paid by the Company for each Put Share shall
be as follows:
(1) the purchase price for each Put Share
which constitutes a share of Preferred Stock shall equal the sum of
the accrued and unpaid dividends in respect of such share of
Preferred Stock through the date of the Put Closing and the greater
of (x) the liquidation preference in respect of such share of
Preferred Stock (excluding accrued and unpaid dividends) and (y)
the Common Stock Value of the number of shares of Common Stock into
which a share of Preferred Stock may be converted as of the date of
the Triggering Put Notice;
(2) the purchase price for a Warrant shall
equal the Common Stock Value minus the exercise price per share of
Common Stock payable upon exercise of such Warrant, times the
number of whole shares of Common Stock issuable upon the exercise
of such Warrant; and
(3) the purchase price for each Put Share
which constitutes a share of Common Stock shall equal the Common
Stock Value thereof computed under (A), (B) or (C) below, as
applicable.
(A) The "Common Stock Value" of a share of
Common Stock will equal the amount that would be distributed to a
holder of a share of Common Stock if the Company were liquidated
following the sale by the Company of all of its assets for an
amount equal to the Agreed Value of the Company, assuming that no
preferred stock is converted and no options or warrants have been
exercised, and following (i) the payment by the Company of all
accrued and unpaid dividends in respect of all outstanding
preferred stock of the Company as of the date the Agreed Value is
determined, and (ii) the amount of all other liquidating
distributions that would be payable in respect of outstanding
preferred stock upon liquidation thereof.
(B) In the event the Common Stock Value
computed pursuant to clause (A) above is greater than the Stated
- 12 -
<PAGE>
Value (as defined in the Certificate of Incorporation of the
Company) of any class of preferred stock, or is twice the Stated
Value of the Series B Preferred Stock, then the Common Stock Value
shall be recomputed assuming that all preferred stock with a Stated
Value which is lower than the Common Stock Value (or one-half the
Common Stock Value, in the case of the Class B Preferred Stock) has
been converted (such preferred stock shall be referred to as being
"in-the-money"). Such recomputed value shall be equal to the
amount that would be distributed to a holder of a share of Common
Stock if the Company were liquidated following the sale by the
Company of all of its assets for an amount equal to the Agreed
Value of the Company, and following (i) the payment by the Company
of all accrued and unpaid dividends in respect of all outstanding
preferred stock of the Company (including "in-the-money" Preferred
Stock) as of the date the Agreed Value is determined, and (ii) the
amount of all other liquidating distributions that would be payable
in respect of such outstanding preferred stock that is not "in-the-
money" upon liquidation thereof.
(C) In the event the Common Stock Value
determined pursuant to clause (A) above, or, if applicable, clause
(B) above, is greater than the exercise price of any outstanding
options or warrants, then the Common Stock Value shall be
recomputed assuming that all outstanding options or warrants with
an exercise price which is lower than the Common Stock Value have
been exercised immediately prior to such liquidating distribution
and that the purchase price paid upon any such exercise was
available to the Company for distribution in liquidation.
(ii) If an Agreed Value has not been determined
or if the Put Closing is to occur in connection with or following
the sale of all or substantially all of the assets of the Company,
the purchase price for the Put Shares shall equal the amount
distributable in respect thereof under the Amended and Restated
Charter in connection with the liquidation and dissolution of the
Company following the sale of all or substantially all of its
assets.
(iii) The Company will notify each
Stockholder in writing of the determination of Agreed Value
promptly after the determination thereof.
(e) The purchase price for the Put Shares shall be
payable in full at the Put Closing, by wire transfer of immediately
available funds to such accounts as shall be designated by the
respective Stockholders, or in such other form of consideration as
shall be acceptable to Waller-Sutton. Subject to the provisions of
section 7(f) below, the Put Closing shall occur on the date
designated by Waller-Sutton in the Triggering Put Notice. Subject
to the provisions of Section 7(f) below, the Company shall be
obligated to purchase all of the Put Shares on such closing date,
and simultaneously with such purchase the Company shall (to the
extent such are not among the Put Shares) pay all accrued and
unpaid dividends on the outstanding Series B Preferred Stock.
- 13 -
<PAGE>
(f) The date of the Put Closing shall be postponed
in the following circumstances: (i) if the Company and Waller-
Sutton are unable to agree upon the Agreed Value of the Company
within 90 days of the date of the Triggering Put Notice (in which
case the Board of Directors shall promptly proceed to sell the
Company, and the Put Closing shall be held on such date or dates as
shall be selected by Waller-Sutton, no later than the day following
the date that the Company shall have been sold (whether pursuant to
a merger, a sale of all or substantially all of its capital stock,
assets or otherwise), or (ii) if, within 10 days after an Agreed
Value has been determined, the Company shall send a written notice
to Waller-Sutton and the Additional Put Stockholders advising such
parties that (x) the Company believes that it will be necessary for
the Company to be sold (whether pursuant to a merger, a sale of all
or substantially all of its capital stock, assets or otherwise) to
pay the purchase price for the Put Shares, or (y) the Company will
seek to pay the purchase price for the Put Shares out of the
proceeds of a Qualified Financing. Any notice sent pursuant to
this Section 7(f) shall be approved by the Board of Directors
(excluding Waller-Sutton's and the Additional Put Stockholders'
nominees to the Board of Directors).
(g) (i) If the date of the Put Closing shall
have been postponed pursuant to notice from the Company pursuant to
Section 7(f)(ii)(y) above, then the Company shall be obligated to
take such steps as are necessary to cause a Qualified Financing to
be consummated within 3 months of the date of the notice given
under Section 7(f)(ii)(y), and within one business day after the
consummation of a Qualified Financing, the Company shall have used
the net available proceeds therefrom to pay the full purchase price
for the Put Shares and to pay all accrued and unpaid dividends on
the outstanding Series B Preferred Stock as required pursuant to
the last sentence of Section 7(e).
(ii) As used herein, a Qualified Financing
shall mean a debt or equity financing, the net proceeds of which
are sufficient (after repayment of any Indebtedness required to be
repaid in connection therewith) to pay the purchase price of the
Put Shares in full.
(h) In all other circumstances where the date of
the Put Closing shall have been postponed pursuant to Section 7(f)
above, the Company shall be obligated to take the following steps
within the time periods specified below:
(i) within 4 months after the date of the
Triggering Put Notice, the Company shall have engaged a broker to
market, solicit bids and the form of bids to be solicited for and
otherwise facilitate the sale of the Company, whether by way of
merger of the Company with any other Person, by way of a single
sale of all or substantially all of the capital stock or assets of
the Company, or as separate sales of one or more of the Company's
radio stations (every such transaction, a "sale transaction"), such
broker to be experienced in the marketing and sale of radio
stations, and such broker, the terms of its engagement and the form
of bids to be solicited and the structure of the transaction to be
- 14 -
<PAGE>
reasonably acceptable to Waller-Sutton, and the broker and the
Company shall have prepared an offering memorandum for the sale of
the Company (which offering memorandum shall specify the date that
bids must be received) and shall have distributed such offering
memorandum to all Persons who are reasonably likely to have a bona
fide interest in engaging (and the financial capacity to engage) in
such sale transaction or transactions (as reasonably determined by
the broker and Waller-Sutton);
(ii) within 6 months after the date of the
Triggering Put Notice, the Company shall have received any and all
bids from potential buyers, shall have sent copies of all such bids
to Waller-Sutton, and, unless otherwise consented to by Waller-
Sutton, shall have closed the solicitation for bids, and, if such
solicitation for bids is closed, the Company shall have received at
least one (or one set, in the case of bids for less than all of its
radio stations) covering all or substantially all of its assets or
capital stock;
(iii) within 8 months after the date of the
Triggering Put Notice, the Company shall have entered into one or
more Qualified Purchase and Sale Agreements for the sale of the
Company or all or substantially all of its assets. A "Qualified
Purchase and Sale Agreement" shall mean one or more purchase and
sale agreements, duly executed by one or more financially
responsible purchasers, reasonably acceptable to Waller-Sutton,
providing for the purchase of the Company or one or more radio
stations in a sale transaction for an aggregate purchase price,
payable in full in cash or in such other form of consideration as
shall be acceptable to Waller-Sutton at closing, and which provides
for a final "drop dead" date for closing, including all extensions
for transfer approvals, of no later than four months after the date
of execution thereof, and which provides no financing contingency
therein for the benefit of the purchaser and is otherwise in form
and substance acceptable to Waller-Sutton; and
(iv) within one business day after the closing
of Qualified Purchase and Sale Agreements for the Company or all or
substantially all of the Company's radio stations, the Company
shall have used the net available proceeds therefrom to purchase
all of the Put Shares.
(i) Waller-Sutton shall have the right, by written
notice to the Company and each other Additional Put Stockholder
(the "Rescission Notice"), to rescind the Triggering Put Notice and
all Additional Put Notices (and upon the giving of such Rescission
Notice in accordance with the terms hereof, the Triggering Put
Notice and each Additional Put Notice shall automatically be null
and void and of no further force or effect), provided, however,
that the Rescission Notice may not be given at any time (x) while
the Company is a party to a binding agreement in respect of or
after the Company has consummated a Qualified Financing, or (y)
while the Company is a party to a binding Qualified Purchase and
Sale Agreement(s) or has consummated transactions pursuant thereto
providing for aggregate consideration to the Company equal to more
- 15 -
<PAGE>
than $25 million. If a Rescission Notice is given, Waller-Sutton
shall have the right at any time after the expiration of 12 months
from the date of the Rescission Notice to again invoke the
provisions of this Section 7, and the Stockholders shall have the
right to give Additional Put Notices in respect thereof.
(j) If the Company shall fail to take any of the
actions set forth above within the time frames required or shall
otherwise default in any of its obligations under this Section 7,
and such action shall not be taken or such default shall not be
cured to the satisfaction of Waller-Sutton, within 15 days of the
date of any written notice from Waller-Sutton to the Company with
respect thereto, such shall be deemed a "Put Default." During the
continuation of a Put Default, Waller-Sutton may require the
Company and the other Stockholders to elect such additional
designees of Waller-Sutton to the Board such that, after giving
effect thereto, the designees of Waller-Sutton elected to the Board
pursuant to the provisions of Section 2(a)(ii)(4) above and this
Section 7(1) shall constitute a majority of the members of the
Board. Without limitation, to the extent then required under
applicable law, the Company shall, if so requested by Waller-
Sutton, make such filings with the Federal Communications
Commission and/or the Securities and Exchange Commission and mail
such materials to its Stockholders as shall be necessary to enable
Waller-Sutton to designate a majority of the members of the Board,
and the Stockholders shall vote their shares of Voting Stock in
such manner as shall be necessary to give effect to the foregoing.
It is expressly agreed that the designees of Waller-Sutton on the
Board shall be empowered to take such action as shall be necessary
or appropriate to cause the Put Closing to occur as soon as
possible, including causing a sale of all or substantially all of
the assets of the Company, or alternatively to effect a sale of the
Company or a merger by the Company with another entity.
(k) In no event shall the Company be required to
consummate any sale pursuant to this Section 7 which would require
repayment of any outstanding indebtedness of the Company unless (i)
such indebtedness of the Company is repaid on the date of
consummation of such sale, (ii) the holders of the indebtedness
required to be repaid out of the proceeds of any such sale consent
to such sale, or (iii) the purchaser agrees to assume all such
indebtedness not being repaid, in accordance with the terms of the
agreements governing such indebtedness, and no default or event of
default under such agreements results from such assumption.
8. Disposition of Shares. No Management Stockholder shall
_____________________
transfer, sell, convey, exchange, pledge or otherwise dispose of
("Transfer") any Shares of the Company except in connection with a
sale of all or substantially all of the outstanding stock of the
Company or a merger of the Company with another Person.
Notwithstanding the foregoing, a Management Stockholder shall be
entitled to effect any of the following transfers (each an "Exempt
Transfer"): (i) Transfers by a Management Stockholder to an entity
wholly owned by him at all times following such Transfer; (ii)
Transfers pursuant to applicable laws of descent and distribution
- 16 -
<PAGE>
to members of such Management Stockholder's Immediate Family, or
Transfers during the lifetime of such Management Stockholder to
such Management Stockholder's spouse, adult children or to a trust
whose beneficiaries are members of such Management Stockholder's
Immediate Family, (iii) Transfers approved by a majority of the
Board of Directors of the Company (which, for as long as Waller-
Sutton shall have approval rights pursuant to Section 6 above,
shall include the Series F Directors), (iv) prior to a Qualified
Public Offering, Transfers of a number of Shares up to the "Maximum
Amount" (as defined below), computed cumulatively for all Transfers
made under this clause (iv) from and after the date hereof, and (v)
following a Qualified Public Offering, the greater of the Maximum
Amount or 25% of the sum of(1) the number of shares of Common Stock
that such Management Stockholder would have owned as of such date
had he not effected any Transfers prior to such date and (2) the
number of shares of Common Stock issuable on conversion of Series
A Preferred Stock that such Management Stockholder would have owned
as of such date had he not effected any Transfers prior to such
date, but excluding any shares of Common Stock issuable on exercise
of any options or warrants held by such Management Stockholder on
such date (the sum of (1) and (2) being such Management
Stockholder's "Holdings"), computed cumulatively for all Transfers
made under this clause (v) from and after the date hereof, provided
that, in the case of Exempt Transfers of the types referenced in
clauses (i) and (ii) above, the restrictions contained in this
Section 8 will continue to be applicable to Shares and the
transferee of such Shares must have agreed in writing to be bound
by the terms and conditions of this Agreement applicable to the
Stockholder. For purposes hereof, the "Maximum Amount" shall be
equal to such Management Stockholder's Holdings, multiplied by a
fraction, the numerator of which shall be the number of shares of
Common Stock (computed on an as-converted and fully-diluted basis)
sold or otherwise disposed of by Waller-Sutton (other than to
Waller-Sutton Permitted Transferees) since the date hereof, and the
denominator of which shall be the number of shares of Common Stock
(computed on an as-converted and fully-diluted basis but excluding
any shares of Common Stock that may become issuable on exercise of
a Series F Warrant) that would have been held by Waller-Sutton on
the date of such Transfer, if Waller-Sutton had not previously sold
or otherwise disposed of any Shares. The foregoing shall not apply
to or prevent the exercise by a Management Stockholder of the
options granted to him under the 1998 Management Stock Option Plan
on a "cashless" or net basis.
9. Sale of the Company.
___________________
(a) If a majority of the Board (including in such
majority the directors appointed by Waller-Sutton), and Waller-
Sutton and other Stockholders Beneficially Owning, together with
Waller-Sutton, a majority of the Voting Stock, approve a sale of
all or substantially all of the assets or capital stock of the
Company (the "Approved Sale"), then each Stockholder shall vote
for, consent to and raise no objections against such Approved Sale.
If the Approved Sale is structured as (i) a merger or
consolidation, each Stockholder shall waive any dissenters rights,
- 17 -
<PAGE>
appraisal rights or similar rights such holder may have in
connection with such merger or consolidation or (ii) a sale of
stock, each shall agree to sell all of his Shares and rights to
acquire Shares on the terms and conditions so improved. Each
Stockholder shall take all necessary or desirable actions in
connection with the consummation of the Approved Sale as reasonably
requested by the Company and Waller-Sutton.
(b) The obligations of the Stockholders with respect to
an Approved Sale are subject to the satisfaction of the following
conditions: (i) upon the consummation of the Approved Sale, each
Stockholder holding the same class of Shares shall receive the same
form of consideration and the same amount of consideration (based
on the number of Shares held) and (ii) each holder of then
currently exercisable rights to acquire shares of Common Stock
shall be given an opportunity to do one of the following: (A) to
exercise such rights prior to the consummation of the Approved
Sale, (B) to receive in exchange for such rights consideration
equal to the amount determined by multiplying (1) the same amount
of consideration per share of Common Stock received by holders of
Common Stock in connection with the Approved Sale less the exercise
price per share of Common Stock of such rights to acquire such
Common Stock by (2) the number of shares of Common Stock
represented by such rights or (C) to receive in exchange for such
rights, rights to acquire shares of common stock of the surviving
corporation under equivalent terms through a tax-free exchange with
the surviving corporation if the Approved Sale is structured as a
merger or consolidation which otherwise constitutes a tax-free
reorganization as to such Stockholder and such exchange does not
adversely affect the tax-free treatment of the Approved Sale.
(c) In no event shall the Company be required to
consummate any sale pursuant to this Section 9 which would require
repayment of any outstanding indebtedness of the Company unless (i)
the net proceeds of such sale would be sufficient to repay all of
such indebtedness of the Company, (ii) the holders of the
indebtedness required to be repaid out of the proceeds of any such
sale consent to such sale, or (iii) the purchaser agrees to assume
all such indebtedness not being repaid, in accordance with the
terms of the agreements governing such indebtedness, and no default
or event of default under such agreements results from such
assumption.
10. Tag-Along Right. In addition to the rights granted under
_______________
Section 7 above, in the event that Waller-Sutton and other
Stockholders (including Waller-Sutton) Beneficially Owning more
than fifty percent (50%) of the Common Stock subject to this
Agreement (each a "Selling Stockholder"), desire to transfer, sell,
convey, exchange or otherwise dispose of ("Transfer") any Shares
pursuant to a bona fide offer from a third party (the "Buyer"),
then such Selling Stockholders shall notice the Stockholders who
are not Selling Stockholders ("Tag-Along Stockholders"), in
writing, of such offer and its terms and conditions (the "Transfer
Notice"). Upon receipt of such Transfer Notice, each Tag-Along
- 18 -
<PAGE>
Stockholder shall have the right to sell to the Buyer, on the same
terms and conditions as the Selling Stockholders, that number of
Shares of the Company's capital stock subject to this Agreement
equal to the product attained by multiplying (a) the number of
Shares held by the Tag-Along Stockholder times (b) the quotient
derived by dividing (i) the number of Shares which otherwise would
have been sold by the Selling Stockholders to the Buyer by (ii) the
total number of Shares held by such Selling Stockholders and the
number of Shares held by the Tag-Along Stockholders who have
elected to participate in such Transfer (assuming, in the case of
sales of Common Stock of the Company, full conversion of all shares
of preferred stock of the Company held by the Selling Stockholders
and each Tag-Along Stockholder exercising its rights under this
Section 10). If more than one Tag-Along Stockholder elects to sell
Shares pursuant to this Section 10, they may do so pro rata based
on the number of Shares held by each of them or in such other
proportions as they may agree. The Tag-Along Stockholders' right
to sell pursuant to this Section 10 can be exercised by delivery of
written notice to the Selling Stockholders within 10 business days
following delivery of the Transfer Notice. Any Tag-Along
Stockholder who fails to notify the Selling Stockholders within
such 10 business days shall be deemed to have waived its rights
under this Section 10.
11. Drag-Along Right. In the event that Waller-Sutton and
________________
other Stockholders (including Waller-Sutton) Beneficially Owning
more than fifty percent (50%) of the Common Stock subject to this
Agreement (each a "Transferring Stockholder") wish to Transfer in
a bona fide arms' length sale all of the Shares held by the
Transferring Stockholders to any person or persons who are not
Affiliates of the Transferring Stockholders (the "Proposed
Transferee"), the Transferring Stockholders shall have the right,
subject to applicable law, to require all the remaining
Stockholders to sell to the Proposed Transferee all of the Shares
then owned by such remaining Stockholders (including any warrants
or options to acquire capital stock of the Company). The amount
and type of consideration to be paid by the Proposed Transferee to
the Transferring Stockholders and the remaining Stockholders shall
be the same (less, in the case of options or warrants, the exercise
price for st~h options or warrants, and in the case of convertible
preferred stock shall be based on the greater of the liquidation
preference thereof or on the amount that would be received if such
preferred stock were converted into Common Stock immediately prior
to the closing of such Transfer). In addition, the terms and
conditions upon which the remaining Stockholders shall Transfer
their Shares shall be the same as those received by Transferring
Stockholders holding the same class of capital stock.
12. Subscription Right. If at any time the Company proposes
__________________
to issue equity securities of any kind (the term "equity
securities" shall include for these purposes any warrants, options
or other rights to acquire equity securities and debt securities
convertible into equity securities) of the Company and any Series
- 19 -
<PAGE>
F Purchaser is to be a purchaser thereof (other than the issuance
of equity securities (i) upon conversion of any preferred stock
pursuant to the Company's Certificate of Incorporation, (ii) to the
public in a firm commitment underwriting pursuant to a registration
statement filed under the Securities Act, (iii) pursuant to the
acquisition of another Person by the Company by merger, purchase of
substantially all of the assets or outstanding capital stock or
other form of transaction or (iv) pursuant to an employee stock
option plan, stock. bonus plan, stock purchase plan or other
management equity program), then, as to each Stockholder, the
Company shall: (i) give written notice setting forth in reasonable
detail (1) the designation and all of the terms and provisions of
the securities proposed to be issued (the "Proposed Securities"),
(2) the price and other terms of the proposed sale of such
securities, (3) the amount of such securities proposed to be issued
and (4) such other information as the Stockholder may reasonably
request in order to evaluate the proposed issuance; and (ii) offer
to issue to each such Stockholder a portion of the Proposed
Securities equal to a percentage determined by dividing (x) the
number of shares of Common Stock Beneficially Owned by such
Stockholder, assuming conversion in full of any convertible
securities held by such Stockholder and exercise of any options or
warrants held by such Stockholder, by (y) the total number of
shares of Common Stock then outstanding, including for purposes of
this calculation all shares of Common Stock issuable upon
conversion in full of any then outstanding convertible securities
or upon exercise in full of any outstanding options or warrants.
Each such Stockholder must exercise its purchase right
hereunder within 10 days after receipt of such notice from the
Company. If all of the Proposed Securities offered to such
Stockholder are not fully subscribed by such Stockholder, the
remaining Proposed Securities will not be reoffered to the
Stockholders purchasing their full allotment. To the extent that
the Company offers two or more securities in units, Stockholders
must purchase such units as a whole and will not be given the
opportunity to purchase only one of the securities making up such
unit.
Upon expiration of the offering period described above, the
Company will be free to sell such Proposed Securities that the
Stockholders have not elected to purchase during the 90 days
following such expiration on terms and conditions not more
favorable to the purchasers thereof than offered to such holders.
Any Proposed Securities offered or sold by the Company to Persons
including a Series F Purchaser after such 90 day period must be
reoffered to the Stockholders pursuant to these terms.
13. Representations and Warranties.
______________________________
(a) Each Stockholder represents and warrants the
following with respect to himself, herself or itself, as the case
may be:
- 20 -
<PAGE>
(i) Authorization. All corporate action on the
_____________
part of each Stockholder which is not an individual necessary for
the authorization, execution, delivery and performance by such
Stockholder of this Agreement has been taken. This Agreement is a
legal, valid and binding Obligation of each Stockholder,
enforceable against such Stockholder in accordance with its terms.
(ii) No Violation. The execution and delivery of
____________
this Agreement will not (with or without notice or passage of time
or both) (a) conflict with or result in a breach of any provision
of the certificate of incorporation or bylaws of a Stockholder
which is not an individual, (b) result in a default, give rise to
any right of termination, cancellation or acceleration, or require
any consent or approval, under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, loan, factoring
arrangement, license, agreement, lease or other instrument or
obligation to which a Stockholder is a party or by which it or any
of its assets may be bound, or (c) violate any law, judgment,
order, writ, injunction, decree, statute, rule or regulation of any
court, administrative agency, bureau, board, commission, office,
authority, department or other governmental entity applicable to
such Stockholder or any of its, his or her assets.
14. Termination of Certain Provisions. The provisions of
_________________________________
Sections 2, 7, 10, 11 and 12 of this Agreement will terminate upon
the closing of a Qualified Public Offering. In addition, this
Agreement, or any portion thereof, may be terminated with the
written agreement of the Company, Waller-Sutton and Stockholders
(including Waller-Sutton) Beneficially Owning more than 50% of the
Common Stock Beneficially Owned by all Stockholders.
15. Voting. The Stockholders agree that GE Capital shall not
______
vote its shares of Series F Preferred Stock (or any shares of
Common Stock issued on conversion thereof) and that such shares
will not be counted as shares of Series F Preferred (or Common
Stock, as the case may be) that are entitled to vote on any matters
except in respect of the following extraordinary events which are
submitted to the holders of the Preferred Stock of the Company for
vote or approval under the Amended and Restated Charter upon which
GE Capital shall be entitled to vote:
(a) any amendment to the Amended and Restated Charter;
(b) a sale of all or substantially all of the assets of
the Company;
(c) the dissolution, liquidation or termination of the
Company;
(d) any acquisition of, or merger of the Company with,
another corporation or other entity, whether or not the Company is
a survivor of such transaction;
- 21 -
<PAGE>
(e) any change in the fundamental nature of the business
of the Company;
(f) any transaction with affiliates, except upon fair
and reasonable terms comparable to an arms-length transaction; and
(g) any change in the Company's capital structure in a
manner that dilutes the ownership interest of the holders of the
Series F Preferred Stock.
The provisions of this Section 15 shall remain in effect with
respect to GE Capital's shares of Series F Preferred Stock (and the
shares of Common Stock issued on conversion thereof) until the
occurrence of either of the following: (1) transfer of such Series
F Preferred Stock (or the shares of Common Stock issued on
conversion thereof) to a third party unaffiliated with GE Capital
or (2) delivery to the Company of an opinion of counsel, in form
reasonably satisfactory to the Stockholders, to the effect that, as
a result of (a) changes in the ownership or attribution rules
("Rules") of the FCC or (b) changes in GE Capital's circumstances,
there is no longer a need or desire on the part of GE Capital to
insulate its ownership interest in the Series F Preferred Stock (or
the shares of Common Stock issued on conversion thereof) from
attribution under the FCC Rules.
16. Consent to Amendments; Waivers. Except as otherwise
______________________________
expressly provided herein, the provisions of this Agreement may be
amended or waived at any time only by the written agreement of the
Company, Waller-Sutton and Stockholders (including Waller-Sutton)
holding not less than fifty percent (50%) of the Common Stock
Beneficially Owned by all Stockholders. Any waiver, permit,
consent or approval of any kind or character on the part of any
such holder of any provisions or conditions of this Agreement must
be made in writing and shall be effective only to the extent
specifically set forth in such writing.
17. Waller-Sutton. The term Waller-Sutton, as used herein,
_____________
shall mean Waller-Sutton or any Permitted Waller-Sutton Transferee
to whom Waller-Sutton has transferred any Shares; provided,
however, that in the event Waller-Sutton sells all or substantially
all of its Shares to Persons other than Permitted Waller-Sutton
Transferees, then (i) the term "Waller-Sutton," as used in Section
7 hereof (and in respect of defined terms used in said Section 7),
shall refer to any Stockholder or Stockholders Beneficially Owning
more than 30% of the Series F Preferred Stock then outstanding, and
(ii) the term "Waller-Sutton," as used in any other Section of this
Agreement (and in respect of defined terms used therein), shall
refer to any Stockholder or Stockholders Beneficially Owning more
than 50% of the Series F Preferred Stock then outstanding.
18. Successors and Assigns. Except as otherwise expressly
______________________
provided herein, all covenants and agreements contained in this
- 22 -
<PAGE>
Agreement by or on behalf of any of the parties hereto will bind
and inure to the benefit of the respective successors and assigns
of the parties hereto, whether so expressed or not, provided, that
in the case of an assignment, such assignment shall be made in
conjunction with a Transfer of Shares, such assignment shall
specifically provide that the assignee shall assume all obligations
of the assigning Stockholder, and such assignee shall execute and
deliver to the Company and the other Stockholders a counterpart of
this Agreement. Notwithstanding the foregoing, no purchaser of
Shares sold pursuant to an effective registration statement filed
by the Company or in an unsolicited open market transaction
effected pursuant to Rule 144 shall be subject to the provisions
hereof or deemed a Stockholder hereunder.
19. Legend on Certificates. All Series A Preferred Stock,
______________________
Series B Preferred Stock, Series D Preferred Stock and Series F
Preferred Stock of the Company, and all Series C Preferred Stock
and all Common Stock of the Company now or hereafter owned by the
parties to this Agreement, shall be subject to the provisions of
this Agreement and the certificates representing said shares shall
bear substantially the following legends (except that the
certificate representing the Series C Preferred Stock shall not
bear the first legend set forth below):
"The securities represented by this certificate
have not been registered under the Securities Act
of 1933, as amended, or the securities laws of any
State (the "Securities Laws"). These securities
may not be offered, sold, transferred, pledged or
hypothecated in the absence of registration under
applicable Securities Laws, or the availability of
an exemption therefrom. This certificate will not
be transferred on the books of the Corporation or
any transfer agent acting on behalf of the
Corporation except upon the receipt of an opinion
of counsel, satisfactory to the Corporation, that
the proposed transfer is exempt from the
registration requirements of all applicable
Securities Laws, or the receipt of evidence,
satisfactory to the Corporation, that the proposed
transfer is the subject of an effective
registration statement under all applicable
Securities Laws."
"The Corporation is subject to restrictions
contained in the Federal Communications Act, as
amended. The securities evidenced by this
certificate may not be sold, transferred, assigned
or hypothecated if, as a result thereof, the issuer
would be in violation of that act."
"The securities represented by this certificate are
subject to the terms of that certain Second Amended
and Restated Stockholders' Agreement dated as of
- 23 -
<PAGE>
June 15, 1998, among Regent Communications, Inc.
and certain of its stockholders, as the same may be
amended from time to time."
20. Severability. Whenever possible, each provision of this
____________
Agreement will be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement
is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of
this Agreement.
21. Descriptive Headings. The descriptive headings of this
____________________
Agreement are inserted for convenience of reference only and do not
constitute a part of and shall not be utilized in interpreting this
Agreement.
22. Notices. Any notices required or permitted to be sent
_______
hereunder shall be delivered personally or mailed, certified mail,
return receipt requested, or delivered by overnight courier service
to the addresses shown on the signature pages hereof, or such other
address as any party hereto designates by written notice to the
Company, and shall be deemed to have been given upon delivery, if
delivered personally, three days after mailing, if mailed, or one
business day after delivery to the courier, if delivered by
overnight courier service.
23. Governing Law. All questions concerning the
_____________
construction, validity, and interpretation of this Agreement, and
the performance of the obligations imposed by this Agreement, shall
be governed by the laws of the State of Delaware.
24. Final Agreement. This Agreement constitutes the complete
_______________
agreement of the parties concerning the matters referred to herein.
25. Execution in Counterparts. This Agreement may be
_________________________
executed in any number of Counterparts, each of which when so
executed and delivered shall be deemed an original, and such
counterparts together shall constitute one instrument.
26. No Strict Construction. The language used in this
______________________
Agreement will be deemed to be the language chosen by the parties
hereto to express their mutual intent, and no rule of strict
construction will be used against any party.
27. Remedies. The parties hereto shall have all rights and
________
remedies set forth in this Agreement and all rights and remedies
- 24 -
<PAGE>
available under any applicable law. The parties hereto agree and
acknowledge that money may not be an adequate remedy for any breach
of the provisions of this Agreement and that any party may, in its
sole discretion, apply to any court of law or equity of competent
jurisdiction for specific performance or injunctive relief (without
posting bond or other security) in order to enforce, or prevent any
violations of, the provisions of this Agreement.
28. Certain Expenses. The Company agrees to pay all
________________
reasonable expenses of Waller-Sutton (including reasonable fees,
charges and disbursements of its counsel) incurred in connection
with (i) any amendment, supplement, modification or waiver of or to
any provisions of this Agreement (including, without limitation, a
response to a request by the Company or any Stockholder for a
consent to any action otherwise prohibited hereunder), or consent
to any departure by the Company or any Stockholder from, the terms
of any provision of this Agreement; and (ii) any matters arising
hereunder, including without limitation the reasonable expenses of
Waller-Sutton incurred to monitor or confirm the performance by the
Company or any Stockholder of or compliance by the Company or any
Stockholder with all agreements and covenants on its part to be
performed or complied with or incurred in connection with or in
respect of any of the rights granted to Waller- Sutton hereunder.
The Company shall also pay all costs and expenses incurred in
connection with or arising out of the purchase by it of the Put
Shares.
29. Waller-Sutton Consent. Whenever this Agreement shall
_____________________
require or contemplate the consent or approval of Waller-Sutton to
or in respect of any matter, such consent or approval may be given
or withheld in the sole discretion of Waller-Sutton and, if given,
must be evidenced by a written instrument duly executed by or on
behalf of Waller-Sutton expressly setting forth the specific matter
approved or consented to.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
- 25 -
<PAGE>
The parties hereto have executed this Agreement on the date
first set forth above.
THE COMPANY:
REGENT COMMUNICATIONS, INC.
By: /s/ Terry S. Jacobs
__________________________________
Title: Chairman & CEO
Address: 50 E. River Center Blvd.
Suite #180
Covington, KY 41011
Telecopier no: (606) 292-0352
/s/ Terry S. Jacobs
_______________________________________
TERRY S. JACOBS
Address: 561 Madeira Hills Dr.
Cincinnati, OH 45243
Telecopier no: ( ) -
/s/ William L. Stakelin
_______________________________________
WILLIAM L. STAKELIN
Address: 1870 Madison Road
Cincinnati Ohio 45231
Telecopier no: ( ) -
- 26 -
<PAGE>
RIVER CITIES CAPITAL FUND LIMITED PARTNERSHIP
By: River Cities Management Limited
Partnership, General Partner
By: Mayson, Inc., General Partner
By: /s/ R. Glen Mayfield
________________________________
R. Glen Mayfield, Vice President
Address: 221 East Fourth Street
Suite 2250
Cincinnati, Ohio 45202
BMO FINANCIAL, INC.
By: /s/ M. T. Smith
__________________________________
Address: 430 Park Avenue
New York, NY 10022
Telecopier No.: (212) 605-1648
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ T. P. Wait
___________________________________
Senior Vice President
Address: 3379 Peachtree Road, N.E.
Suite 600
Atlanta, GA 30326
PNC BANK, N.A., as Trustee
By: /s/ Lourin E. Jaeler
__________________________________
Address: 201 East Fifth Street
Fifth Floor
Cincinnati, OH 45202
Attn: Patricia S. Grelle
- 27 -
<PAGE>
WALLER-SUTTON MEDIA PARTNERS, L.P.
By: Waller-Sutton Media, L.L.C., its General
Partner
By: /s/ Cathy M. Brienza
______________________________
Address: c/o Waller-Sutton
Management Group, Inc.
1 Rockefeller Plaza
Suite 3300
New York. NY 10020
Attention: Cathy M. Brienza
Telecopier no: (212) 218-4355
with a copy (which shall not constitute
notice) to:
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, NY 10112
Attention: Ronald Greenberg, Esq.
Telecopier no: (212) 698-7825
/s/ William H. Ingram
_______________________________________
WILLIAM H. INGRAM
Address: c/o Waller-Sutton Management
Group, Inc.
1 Rockefeller Plaza, Suite 3300
New York, NY 10020
Telecopier no: (212) 218-4355
with a copy (which shall not constitute
notice) to:
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, NY 10112
Attention: Ronald Greenberg, Esq.
Telecopier no: (212) 698-7825
- 28 -
<PAGE>
WPG CORPORATE DEVELOPMENT ASSOCIATES V, L.P.
By: WPG Private Equity Partners II, L.L.C.,
its general partner
By: WPG Private Equity Partners II, LLC
By: /s/ Wesley W. Lang
_____________________________________
Address: One New York Plaza
New York, New York 10004-1950
WPG CORPORATE DEVELOPMENT ASSOCIATES V
(OVERSEAS), L.P.
By: WPG COA V (OVERSEAS) Ltd.
By: /s/ Patric K. Keating
_____________________________________
Address:c/o BankAmerica Trust & Banking
Corp.
(Cayman) Ltd.
BankAmerica House
Fort Street
George Town Grand Cayman
Cayman Islands
BLUE CHIP CAPITAL FUND II LIMITED PARTNERSHIP
By: Blue Chip Venture Company, Ltd., its
general partner
By: /s/ John H. Wyant
_________________________________
Address: 2000 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Attn: John H. Wyant
Telecopier no: (513) 723-2306
- 29 -
<PAGE>
MIAMI VALLEY VENTURE FUND L.P.
By: Blue Chip Venture Company of Dayton,
Ltd., its special limited partner
By: /s/ John H. Wyant
____________________________________
John H. Wyant
Manager
Address: 2000 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Attn: John H. Wyant
Telecopier no: (513) 723-2306
/s/ Joel M. Fairman
________________________________________
JOEL M. FAIRMAN
Address: 333 Glen Head Road
Suite 220
Old Brookviile, NY 11545
Telecopier no: (516) 676-2631
- 30 -
